Volume 202 — Illinois Appellate Court Reports

<p>Abstract of the Decision.</p> <p>1. Interpleader—when bringing of action of conversion against complainant not a defense. Where a bill of interpleader alleges that a specific fund is in the hands of complainant, to which fund adverse claims are made by two parties, it is no defense to the bill that it sets up the fact that one of the claimants brought an action of tort for conversion against complainant, thereby, as claimant claims, making her claim that of damages for conversion, and not to the specific fund, where in her answer such claimant claims the specific fund, taking issue with complainant on his right to withhold it, and to the remedy of interpleader, and where it does not appear, by the pleadings or evidence, that there was a conversion.</p> <p>2. Trover and conversion, § 39*—when evidence insufficient to show conversion of money. Conversion of a sum of money is not shown by proof of demand and refusal where it appears that at the time of the demand and refusal the person charged with conversion was a defendant in garnishment proceedings to reach the fund demanded, and later, and up to the time an action was commenced to recover for the alleged conversion, was under order of court to hold and retain the fund in the garnishment proceedings until further order of court.</p> <p>3. Interpleader, § 8*—when rights of defendants deemed to have been derived from common source. On a bill of interpleader, where it appears that the fund in the hands of complainant is money deposited with him in his official capacity as sheriff to redeem real estate from a master’s certificate of sale in foreclosure proceedings, it cannot be successfully maintained that the claims of defendants are not dependent on or derived from a common source, where it appears that one class of defendants claim as judgment creditors on the ground of a fraudulent assignment of the master’s certificate, and that the other defendant claims under the assignment, the claims of both emanating from the certificate, the one being a claim of an equitable right and the other of a legal right.</p> <p>4. Interpleader, § 6*—when bill of is maintainable. A bill of interpleader is maintainable where both parties claim the same credit or chose in action, and it matters not though the claim of one is actionable at law, and the other in equity.</p> <p>5. Interpleader, § 6*—when bill of is maintainable. On a bill of interpleader, where it appeared that the fund in the hands of complainant was money deposited with him in his official capacity as sheriff t d redeem real estate from a master’s certificate in foreclosure proceedings, where one class of defendants claimed as judgment creditors on the ground of a fraudulent assignment of the master’s certificate, and the other under the assignment, held that the facts presented a proper case for interpleader, and that an order that complainant pay over the fund to the clerk and that he be discharged from liability was proper.</p> <p>6. Interpleader, § 18*—what decree should not contain. Although the only relief properly sought by a bill of interpleader is that which effectually discharges petitioner from further liability or annoyance in regard to the fund or property as to which adverse claims are made, and although such rélief may include injunctive relief against the prosecution of proceedings to establish title or ownership to the fund or property, yet it is not the purpose- of such a bill to litigate claims other than rights to the property, for which reason it is error to include injunctive relief in the decree restraining defendant from prosecuting an action in tort for damages for withholding the fund, such action presenting a distinct question, the purpose of which was not to recover the fund.</p> <p>7. Interpleader, § 18*-—what decree should contain. A decree granting the prayer of a bill of interpleader and ordering the fund to be paid to the clerk should include an order to the cross defendants to interplead.</p>

<p>Abstract of the Decision.</p> <p>1. Cbeditobs’ suit, § 48*—when MTl insufficient. On a creditor’s bill to reach a master’s certificate of sale in foreclosure proceedings, alleged to have been conveyed by a judgment debtor of plaintiffs, in fraud of plaintiffs, a decree granting the prayer of the bill and setting aside the transfer of the certificate, held erroneous for want of sufficient allegations to sustain the decree, on the authority of Iles v. Heidenreich, No. 21,708, 201 Ill. App. 619.</p> <p>2. Interpleader, § 18*—when decree on cross-hill of is erroneous. On a creditor’s bill to reach a master’s certificate of sale in foreclosure proceedings, alleged to have been conveyed by a judgment debtor of plaintiffs, in fraud of plaintiffs, where the sheriff to whom money had been paid in redemption of the land from the certificate filed a cross-bill of interpleader to determine the title to the fund, a separate decree on the cross-bill granting the prayer of the cross-bill and ordering the fund paid to the clerk of court and cross complainant discharged from further liability, held erroneous for want of an order to cross defendants to interplead, on the authority of Zimmer v. Iles, No. 21,709, ante, p. 1.</p> <p>3. Appeal and ebbob, § 384*—when separate decrees on hill and cross-hill of interpleader treated as made in same cause. Although where separate decrees are rendered on a bill and cross-bill, it is anomalous to combine the objections to both decrees in one writ of error, yet where the point was not raised in the trial court the decrees will be treated on review as made in the same cause.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 377*—when extrinsic evidence inadmissible. Although, where a contract is merely ambiguous, extrinsic evidence is competent to ascertain its intent, yet where it omits an element essential to liability on the part of those sought to be charged, the omitted provisions cannot be supplied by extrinsic evidence, since the court cannot presume that parties intended to insert therein a provision other and different from that indicated by its plain language, and then give to it a construction which would be legitimate if the contract contained the supposed omitted provision.</p> <p>2. Guaranty, § 12*—how contract construed. The undertaking of a guarantor is to be construed strictly, and he is bound to the extent and in the manner and under the circumstances pointed out in his obligation, which liability cannot be extended by implication.</p> <p>3. Guaranty, § 3*—when parties signing a contract not bound as guarantors. Where corporations, one of which is indebted to the other, make a contract providing for notes to be given by the debtor to the creditor for the amount of the notes and contains certain provisions as to the payment thereof, the fact that the witness clause recites the names of two individuals described as “guarantors," and the fact that each of the persons named executes the contract, the word “guarantor" being affixed to each signature, does not operate to bind such third persons as guarantors of the performance of the contract where there is no operative clause as to them, and where they are not parties to the body of the instrument, since in order to guaranty the payment of notes effectively, a guarantor must indorse them, or execute an express contract of guaranty.</p> <p>4. Guaranty, § 3*—when party signing a contract not bound as guarantor. Where a third party merely annexes his name to a contract in the body of which he is not mentioned, and which is a complete contract between other parties signing it and mentioned in it, such third person does not thereby become a party to the efficient and operative parts of the contract, his signature in such case being only an expression of assent to the act of the parties in making the contract.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>Executobs and administrators—how executor liadle for conversion. The representative of a decedent who takes property not belonging to the estate and appropriates it as an asset thereof commits a tort for which he is liable personally, and not as executor.</p>

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

<p>1. Mortgages, § 101*—when property is no longer subject to provisions of mortgage. Although by virtue of the lien created by a mortgage or deed of trust the mortgagee or cestui que trust has the right to a foreclosure and sale of the security and an application of the proceeds to the payment of the secured debt, yet when this has been done the mortgage or trust deed has expended its force and the property is no longer subject to its provisions, without regard to whether the mortgagee or cestui que trust is the purchaser at the sale or not, since by becoming the purchaser a new relation created by the statute exists, independent of any privity of contract between purchaser and mortgagor.</p> <p>2. Mortgages, § 738*—who is entitled to rents and profits during redemption period. On foreclosure of a mortgage or deed of trust, where the mortgagors are not the owners of the equity of redemption, the owner of such equity is entitled to the rents and profits during the period of redemption, although there is a deficiency decree against the mortgagors, unless the foreclosure decree makes such owner liable for the incumbrance or the deficiency.</p> <p>3. Mortgages, § 514*—when provision for appointment of receiver is valid. A provision in a mortgage or trust deed that pending foreclosure proceedings and during the period of redemption a receiver shall be appointed to take possession or charge of the premises and collect the income thereof is valid and enforceable regardless of the insolvency of the mortgagors.</p> <p>4. Mortgages, § 514*—when receiver may be appointed to take charge of mortgaged premises. On a bill to foreclose a trust deed containing a provision that pending a foreclosure and during the period of redemption a receiver shall be appointed to take possession or charge of the premises and collect the income, where there is a deficiency decree against the mortgagors, who are not the owners of the equity of redemption, it is within the discretion of the court to appoint such a receiver.</p> <p>On Rehearing.</p> <p>1. Pledges, § 2*—what does not constitute pledge of income from mortgaged property for payment of debt. A provision in a mortgage or trust deed that pending foreclosure and during the period of redemption a receiver shall be appointed to take possession or charge of the premises, collect the income and pay the same, less receivership expenses, to the purchaser at the foreclosure sale, cannot be construed as a pledge of the rents and profits of such property as security for the secured indebtedness.</p> <p>2. Mortgages, § 738*—when provision for payment of rents and profits during redemption is inoperative. A provision in a mortgage or trust deed that in case of foreclosure the rents and profits of the property during the period of redemption shall be paid to the person entitled to a deed under the certificate of sale, or in reduction of the redemption money, if the property is redeemed, is inoperative, because the purchaser derives his title solely under the statute.</p>

<p>1. Municipal Court of Chicago, § 25*—what was purpose of statute fixing time for filing record. The Practice Act, sec. 81 (J. & A. 1[ 8618), fixing the time within which a party desiring to prosecute an appeal or writ of error from a judgment may file a stenographic report of the trial containing all the evidence and all the rulings of the court upon all or any of the questions submitted to and ruled upon by the judge, for authentication by him, applies to any record of the court proceedings, whether in the form of a stenographic report, a bill of exceptions or a certificate of evidence, the intention of the Legislature in enacting such section being to simplify and not to complicate procedure.</p> <p>2. Municipal Court of Chicago, § 27*—when hill of exceptions may he stricken'from record. Where it appears that the bill of exceptions was not filed within the time required by law it will be stricken from the record.</p>

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

<p>Abstract of the Decision.</p> <p>1. State’s Attorney, § 3*—when appointment by letter of State’s Attorney insufficient. A letter from the State’s Attorney authorizing an attorney to act as special attorney in a particular ease is without effect in the absence of an order of the court to that effect, since such an appointment is a judicial act, and a court speaks only by its record.</p> <p>2. Insurance, § 17*—who may sue for penalty. The Act of 1891, sec. 3 (J. & A. If 6493), relating to penalties for violation of the prohibition of the act against discrimination between insurance companies as to rates, etc., providing that such penalty shall “be sued for and recovered in the name of the People of the State of Illinois, by the State’s Attorney,” is explicit in its terms and excludes every other method of procedure to recover such penalty.</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>Error to the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

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

<p>Abstract of the Decision.</p> <p>1. Civil service, § 6a*—when motion to find issues for defendant erroneously denied,. In an action by a city employee to recover wages during a period when he claims he was illegally laid off, where plaintiff alleges that he was duly certified by the. Civil Service Commission as such employee, a motion to find the issues for defendant is erroneously denied where there is no competent evidence, by record of such commission or otherwise, that plaintiff was certified as alleged.</p> <p>2. Civil service, § 6a*—when evidence insufficient to show certification of city employee. In an action by a city employee to recover wages during a period when he claims he was illegally laid off, where plaintiff alleges that he was duly certified by the Civil Service Commission as such employee, a finding for plaintiff held against the manifest weight of the evidence where there was no competent evidence, by record of such commission or otherwise, of such certification.</p> <p>3. Civil service, § 25*—when case remanded on reversal.. In an action by a city employee to recover wages during a period when he claims he was illegally laid off, where plaintiff alleges that he was duly certified by the Civil Service Commission as such employee, but offers no competent evidence, by record of such commission or otherwise, of such certification, the case will, on reversal for want of such evidence, he remanded where it appears that the court and plaintiff's counsel proceeded on the theory that proof of certification was unnecessary, since but for such ruling other evidence ¡might have been introduced in support of plaintiff’s contention.</p>

<p>Abstract of the Decision.</p> <p>1. Justices of the peace, § 263*—how jurisdiction of justice determined. On appeal, the jurisdiction of a justice of the peace is to be determined from the facts appearing in evidence.</p> <p>2. Justices op the peace—when record shows jurisdiction in justice. In an action tried in the Circuit Court on appeal from the judgment of a justice of the peace, where on appeal from the judgment of the Circuit Court it was assigned for error that the justice had no jurisdiction of the subject-matter of the action, the contention that the value of the property in question exceeded $200, held not supported by the record.</p> <p>3. Carriers—what does not defeat action for loss of goods. In an action to recover the value of part of certain household goods lost by defendant while hauling them from Glenwood to Chicago under contract with plaintiff, the fact that plaintiff failed to discover her loss-and notify defendant thereof until three days after the balance of the goods were delivered, held not to defeat the action where it appeared that the goods were lost by defendant.</p> <p>4. Carriers, § 139*—when evidence sufficient to establish valúa of goods lost. In an action to recover the value of certain rugs lost by defendant while hauling household goods from Glenwood to Chicago under contract with plaintiff, testimony of the dealer who sold the rugs to plaintiff about ten years previously, stating their fair cash market value when sold, and that if the rugs had been well cared for since the sale, their value would have improved with lapse of time, coupled with testimony of plaintiff that the rugs had been well cared for, held, taken as a whole, sufficient to establish the fair cash market value of the rugs at the time when they were lost.</p> <p>5. Cabecees, § 139*—when evidence sustains judgment for goods lost. In an action to recover the value of certain rugs lost by defendant while hauling household goods from Glenwood to Chicago under contract with plaintiff, a verdict for plaintiff held sustained by the evidence.</p>

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

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 171*—when engineer qualified as expert on operation of engine. In an action to recover for personal injuries sustained by a miner while being hoisted to the surface of a mine in a cage or elevator, wheré it was claimed that defendant’s engineer was negligent in the operation of his engine, a witness who had knowledge of the engine in question, and who had twenty-three years’ experience in operating a similar engine, and who had passed the examination required by the statute as such an engineer, held.sufficiently qualified as an expert witness as to the character and proper manner of operating the engine.</p> <p>2. Mines and minerals, § 152*—when operation of mining machinery not matter -of common knowledge. In an action to recover for personal injuries sustained by a miner while being hoisted to the surface of a mine in a cage or elevator, where plaintiff sought to prove that defendant’s engineer was negligent in failing to apply the- brake when he stopped the car at the surface, and where it appeared that the shaft had certain stops designed to hold the cage in place, held that where it appeared that the machinery was complicated the question whether when the stops failed to work the car would drop without an application of the brake was not a matter of common knowledge, and plain and open to the jury.</p> <p>3. Mines and minerals, § 152*—where rule as to admission of opinion evidence particularly applicable. The rule that where facts on which opinions are founded cannot be made intelligible to the jury, the opinions of witnesses may be received, is particularly applicable to mining, and to eases involving mining which are tried in Cook county, where there are no mines.</p> <p>4. Evidence, § 101*—when admission of evidence unobjectionable because of evidence introduced by adverse party. Where a plaintiff seeks to prove negligence in the use of machinery by expert testimony, defendant cannot object to such testimony where it had previously asked one of its own witnesses a question calling for an opinion as to the operation of such machinery, which the witness answered by giving the opinion asked, since such question indicates that defendant considered the subject as one on which opinion evidence was proper.</p> <p>5. Appeal and error, § 1487*—when admission of evidence harmless error. Where a declaration in an action for personal injuries in one count charges negligence by defendant’s engineer in failing to apply the brake when a cage in a mining shaft, in which plaintiff is being hoisted, has reached the surface, erroneous admission of expert testimony tending to show the negligent failure to apply the brake is not ground for reversal where other counts charge negligence in respects other than that of failure to apply the brake, which the evidence is sufficient to support.</p> <p>6. Damages, § 190*—how amount determined. In an action for personal injuries, the amount of damages which may be recovered depends on the circumstances of the case, and is not a matter of mathematical computation.</p> <p>7. Damages, § 125*—when verdict for Toss of leg not excessive. In an action by a miner to recover for personal injuries resulting in the loss of his left leg about six inches below the crotch, where plaintiff at the time of the accident was nineteen years of age and had a high school education, and where though he still suffered pain at the time of the trial, three years later, the wound had healed, a verdict for $18,500 held not excessive, although plaintiff earned but $2 to $2.25 per day and worked only when the mine was operated, which was from 150 to 200 days in the year.</p>

<p>Interlocutory appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court.</p> <p>Petition for certiorari dismissed.</p>

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

<p>Error to the Circuit Court of Cook county; the Hen. Osgar M. Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Trusts, § 198*—when parties plaintiff deficient in suit for injunction hy trustees. On a hill by a religious corporation to restrain an individual from holding religious services in a cemetery belonging to complainants, a petition for an injunction is insufficient where the petitioners describe themselves as trustees, and where it does not appear from the petition that petitioners are a majority or all of such trustees, and petitioners are therefore not entitled to relief in their official capacity, since a minority of such trustees have no power to represent the rights of their cestui que trust without showing good and sufficient reasons therefor.</p> <p>2. Injunction, § 182*—when allegation in bill insufficient as conclusion of law. On a bill by a religious organization to restrain an individual from holding a certain sort of religious service in a cemetery belonging to the organization, where it appeared that a member of the organization had a permit issued by complainant to bury his family in the cemetery, an allegation in a petition for an injunction restraining defendant from conducting services in such cemetery on the death of such member, alleging that the permit was “subject to the rules and regulations of the congregation,” held insufficient to enable the court to determine the nature of the permit or the conditions attached to it, the quoted allegation being a mere conclusion of law.</p> <p>3. Injunction, § 185*—when allegation of irreparable injury insufficient: Since the principle which lies at the foundation of the injunctive process of a court of equity is the inability of courts of law to afford adequate redress, it is not sufficient to entitle complainant to injunctive relief to allege irreparable damage, but he must aver facts from which, if true, the court can fairly draw that conclusion.</p> <p>4. Injunction, § 181*—when prayer insufficient. A petition for an injunction is insufficient where the bill merely prays for an injunction “as above prayed,” but contains no other prayer for an injunction, or for any other relief, either specific or general.</p>

<p>Appeal and error, § 1870*—when merger of interlocutory order in final decree does not discharge appeal bond on former. Although in a technical, legal sense an interlocutory order for the payment of alimony pendente lite in a proceeding for separate maintenance is merged in a final decree granting permanent alimony, yet where as a prerequisite to the allowance of an appeal from the interlocutory order a bond is given conditioned to prosecute the appeal with effect or in the event of affirmance to pay the amount provided by the order, etc., the rights of the obligee against the surety are not affected by such final decree, rendered after the affirmance, although such final decree finds as a fact that no part of the sums provided by the order have been in fact paid, ascertains the amount due, and orders its payment forthwith, since as a practical matter, apart from legal fictions, the final decree merely supplements the interlocutory order, and does not vacate or suspend it, but leaves it unaltered, merely adding the right to an execution.</p>

<p>Abstract of the Decision.</p> <p>1. Fobcible entby and detained, § 24*—when entry under elaim of right no defense. The invasion of land obviously in possession of another against the wish and protest of the owner, and the removal of fences and their re-erection in another place, constitutes a forcible .entry and will enable the owner to maintain an action of forcible entry and detainer, although defendant acted under a claim of right to the land.</p> <p>2. Fobcible entby and detainee, § 73*—what evidence inadmissible as defense. In actions of forcible entry and detainer, evidence of a paramount title in defendant is incompetent, the action being wholly statutory and involving only possessory rights, so that rights derived from a paramount title can only be claimed in ejectment or other appropriate proceeding.</p> <p>- 3. Forcible entry and detainer, § 60*—when description of premises not materially defective. In an action of forcible entry and detainer, a description of the premises sought to be recovered as “a strip of land belonging to the east 40 acres taken off the east side of the north fraction of the northwest quarter of section nineteen (19),” held not materially defective where it appeared that all parties to the action knew exactly what property was intended to be designated.</p> <p>4. Forcible entry and detainer, § 108*—what objection cannot be raised for first time on appeal. Objection that description of premises is defective cannot be raised for the first time on appeal.</p>

<p>Interlocutory appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding. Heard in this court at the March term, 1916.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles ML Walker, Judge, presiding. Heard in this court at the March term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 221*—what not a defense in action by landlord for cost of removing structure. Where a written lease provided that no alteration should be made in the premises without the written consent of the lessor, held that in an action by the lessor to recover money expended by it in removing a structure erected on the premises by the lessee under an oral agreement made subsequently to the making of the lease, whereby the lessee agreed to remove the structure at the termination of the tenancy, the lessee could not defend on the ground that the oral agreement was not binding, as being in violation of the terms of the lease, since the provision that the written consent of the lessor must he obtained was for the protection of the lessor and could he waived by it.</p> <p>2. Landlord and tenant, § 221*—when tenant liable for cost of removing structure. A lessee who had erected a structure on premises devised under a written lease, not providing for the erection, held liable to the lessor for money expended by him in removing the structure at the termination of the tenancy.</p> <p>3. Trial, § 83*—when not abuse of discretion to reopen case. Where, after the plaintiff and the defendant had apparently rested, the court allowed the plaintiff, on his request, to introduce further testimony, held that there was no abuse of discretion in so doing.</p> <p>4. Account stated, § 25*—when proof of individual items unnecessary. Where a statement of account of the plaintiff against the defendant was shown to the defendant who agreed to its correctness and promised to pay the amount at a later date, held that it was not necessary that the plaintiff, in order to recover, should introduce evidence in detail as to the various items.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 63*^when evidence shows motorman guilty of negligence. In an action to recover for personal injuries to the driver of a wagon, resulting from its being struck by a street car while the driver was attempting to turn around in a street across the car tracks, evidence held to justify a finding that the defendant street car company’s motorman was guilty of negligence causing the injury.</p> <p>2. Street railroads, § 91*—when driver of wagon not guilty of contributory negligence. In an action to recover for personal injuries to the driver of a wagon, resulting from his being struck by a street car while the driver was attempting to turn around in a street across the car tracks, evidence held to justify a finding that the plaintiff was not guilty of negligence contributory to the injury.</p> <p>3. Instructions, § 120*-—when properly refused. It is not error to refuse to give instructions as to ordinances not applicable to the facts in the case.</p> <p>4. Street railroads, § 149*—when refusal to give instruction as to impertinent ordinance not erroneous. In an action to recover for personal injuries to the driver of a wagon, resulting from his being struck by a street car approaching from the direction in which the wagon was facing, while the driver was attempting to turn around in a street across the car track, it is not error to refuse to give an instruction as to an ordinance which provides that vehicles shall not turn in a street until a signal is given, where the ordinance has reference to a signal which could be plainly seen in the rear.</p> <p>5. Street railroads, § 149*-—when refusal of instruction as to ordinance requiring driver to signal not erroneous. In an action to recover for personal injuries to the driver of a wagon, resulting from its being struck by a street car, while the driver was attempting to turn around in a street across the car tracks, it is not error to refuse to give an instruction as to an ordinance requiring the driver to give a signal before making such a turn, where the movement of the driver and his team was a sufficient indication to the motorman of the driver’s intention to turn across the tracks.</p> <p>6. Street railroads, § 149*—when refusal to instruct as to ordinance regulating street traffic not erroneous. In an action to recover for personal injuries to the driver of a wagon which had stopped with its left side next to the curb, resulting from its being struck by a street car approaching from the direction in which the wagon was facing, while the driver was attempting to turn around in the street across the car tracks, it is not error to refuse to give an instruction as to an ordinance providing that no vehicle shall stop with its left side to the curb, since in such a case the pivotal question is not the position of the wagon before it started to turn but whether it turned onto the track when the car was so close that it could not he stopped.</p> <p>7. Street railroads, § 149*—when refusal to instruct as to right of way in streets not erroneous. In an action to recover for personal injuries to the driver of a wagon, resulting from its being struck by a street car while the driver was attempting to turn around across the car tracks, held not error to refuse to instruct the jury that street cars have a superior right over other vehicles upon that portion of the street occupied by the tracks, since such an instruction would have tended to mislead the jury.</p> <p>8. Damages, § 124*—when verdict for broken leg not excessive. A verdict for $5,000 for injuries sustained by a teamster, resulting from a collision with a street car, consisting of a compound fracture of both bones of the left leg above the ankle and making, him a cripple for life, held not excessive.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 333*—what claims maker cannot set off in action by indorsee. In an action by an indorsee of notes against the maker, claims not arising out of any transaction where a contractual relation existed between plaintiff and defendant, or matters or claims between them on which an independent action could have been maintained by defendant against plaintiff, are not properly set off against plaintiff’s claim.</p> <p>2. Municipal Coubt of Chicago, § 13*—what is effect of striking defective affidavit of defense. In an action in the Municipal Court of Chicago, an affidavit of defense which fails to state facts in law constituting a defense, or facts which, if true, will establish a valid set-off, is properly stricken, and thereby all statements and pleas in defense and set-off are automatically eliminated, since in that court pleas are unavailing unless the facts in the affidavit constitute a defense in law to the action.</p> <p>3. Municipal Coubt of Chicago, § 13*—what pleading unnecessary. Since in the Municipal Court of Chicago the merit of a defense is tested by the facts set up in the affidavit, it is not necessary to join issue on any pleas which may be filed.</p> <p>4. Bills and notes, § 333*—when set-off by maker against indorsee not proper. In an action by an indorsee of a promissory note against the maker, a set-off claimed by defendant which is largely in excess of plaintiff’s claim is in violation of the Negotiable Instruments Act of 1895; sec. 12 (J. & A. jf 7633), providing that in actions on promissory notes, etc., where the instrument has been assigned or transferred by delivery to plaintiff after maturity, certain set-offs may be made to the amount of plaintiff’s claim.</p> <p>5. Bills and notes, § 333*—what claims cannot be set off by maker. A defendant cannot set off claims for unliquidated damages against plaintiff’s demand.</p> <p>6. Municipal Coubt of Chicago, § 13a*—when statement of claim on note justifies judgment including interest. A statement of claim in an action in the Municipal Court on a promissory note which attaches a copy of the note to the statement and makes it part thereof by reference is sufficient to authorize the inclusion of interest in the verdict and judgment although such inclusion causes the judgment to be for an amount exceeding that claimed in the statement.</p> <p>7. Municipal Coubt of Chicago, § 28*—when judgment cannot be objected to on appeal. An objection that a judgment in the Municipal Court of Chicago exceeds the amount claimed in plaintiff’s statement of claim cannot be maintained where plaintiff stood by without objection when the verdict was rendered and the judgment entered, and where the objection is made for the first time on appeal.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Partnership, § 425*—when findings in decree sustain decree for dissolution. On a bill for the dissolution of a partnership and for an accounting, the findings of fact in the decree held to sustain the relief decreed.</p> <p>2. Equity, § 550*—when decree assumed on appeal to be supported by evidence. Since a decree comes to the Appellate Court with the presumption of its verity and correctness, and since the law requires such court, where the decree recites evidence omitted from the record, to assume that the decree is supported thereby, the Appellate Court will assume, where the decree recites a master’s report not set out in the record, that any lack of evidence to sustain the decree which may be claimed was supplied by such report, which was before the chancellor when the decree was entered, the law not requiring a search of the record for grounds of reversal.</p> <p>3. Partnership, § 373*—what is effect of annulment of ancillary decretal order. Where in a chancery cause a decretal order adjudicates a certain claim in favor of one of the defendants against complainant, such claim arising out of a partnership between complainant and such defendant, such decretal order may be properly annulled on proof subsequently adduced in the cause, in which case an assignment of rights under such decretal order is merely an equitable assignment, subject to the further order of the court, subrogating the assignee to the rights of the assignor, so that when the claim is annulled by a subsequent decree, the rights of the assignee terminate automatically.</p>

<p>1. Appeal and error, § 1682*—when' rulings on demurrers not reviewable. Error of the trial court in failing to enter judgment on demurrers to replications cannot be availed of on review where the defendant, instead of preserving for review the questions presented by the demurrers by standing by them, waived such error by rejoining to the replications.</p> <p>2. Appeal and error, § 864*—how questions must be preserved for review. The abstract is a pleading of the parties in a court of review and whatever is sought to be reviewed must be contained therein.</p> <p>3. Appeal and error, § 864*—what errors reviewable in absence of motion for new trial. Without a motion for a new trial in a cause tried by a jury, there can be no review except as to errors assigned on the common-law record, appearing in the abstract.</p> <p>4. Appeal and error, § 1060*—When ruling on motion for new trial not presented for review. Though the abstract on appeal shows that a written motion for a new trial was filed, the question of the correctness of the ruling thereon is not presented for review where the reasons assigned in the motion for granting it are not preserved in the abstract.</p> <p>5. Appeal and error, § 864*—what Appellate Court trill not do to reverse. The Appellate Court will not go to the record to reverse the case although it will search the record to affirm regardless of the abstract.</p> <p>6. Appeal and error, § 887*—when errors assigned on refusal to grant new trial not reviewahle. Where an examination of the record showed that errors assigned on a refusal to grant a written motion for a new trial were different from the reasons urged in the motion, which was not included in the abstract of- record, held that such errors were not reviewable.</p> <p>7. Municipal corporations, § 377*—when contract for paving valid. A contract entered into by a city for the repairing of a pavement, held valid and binding on the parties thereto.</p> <p>8. Municipal corporations, § 409*—when city cannot evade payment for work done under contract. Where a contract with a city for repairing its pavement had been performed by the contractor to the satisfaction of the Commissioner of Public Works in accordance with the provisions of the contract, held that the city was estopped from evading payment for the work done.</p> <p>9. Contracts, § 360*—what prevents defendant from contesting validity of contract. The defense of payment for work done under a contract fully performed by the plaintiff amounts to an affirmance of the contract and prevents the defendant from contesting its validity.</p> <p>10. Municipal corporations, § 158*—what capacity in contracting for street repairs. A city in contracting for the repair of its streets acts in its business capacity and not in its governmental capacity.</p> <p>11. Municipal corporations, § 384*—when advertisement for Mds unnecessary. Advertisement for bids are not required before letting a contract for the repair of asphalt pavements of the City of Chicago which does not call for a specified sum in excess of $500.</p> <p>12. Municipal corporations, § 235*—what taxes available for paving streets of Chicago. The vehicle tax is both by statute and ordinance available, for the payment of work done in paving the streets of the City of Chicago.</p> <p>13. Municipal corporations, § 314*—What does not invalidate ordinance appropriating money for improvement. Where it whs estimated that the fund that would be received by a tax available for street repairs would be more than sufficient to pay for work done under a contract, held that the uncertainty as to the amount to be realized from the tax in no way invalidated the appropriation ordinance.</p> <p>14. Municipal corporations, § 409*—When validity of contract for improvement cannot be challenged. Where street repairs were made by a contractor as directed by the Commissioner of Public Works, as provided by the contract, compensation being at a price ascertainable by measurement, held that the city could not in an action by the contractor, challenge the validity of the contract because of the omission of some preliminary formality, irrespective of the manner in which it was entered into.</p> <p>15. Municipal corporations, § 412*—when evidence shows price for paving done under contract. Where the contract price for paving done for the city was proved from original books kept by the city’s inspectors who inspected the work and approved it, held that the city could not be heard to challenge the sufficiency of such proof in an action for compensation for work done under the contract.</p> <p>16. Contracts, § 374*—Who has burden of proof of payment. In an action to recover for work done under a contract, held that under a plea of payment the burden of proof rested upon the defendant to prove payment by preponderance of the evidence.</p> <p>17. ¡Municipal corporations, § 412*—when evidence does not show payment under contract. In an action to recover for street repair work done for a city, held that the evidence introduced by the defendant failed to sustain its plea of payment.</p> <p>18. Pleading, § 161*—how defenses restricted by filing affidavit of meritorious defense. In an action on a contract where the plaintiff files with his declaration an affidavit as provided for in J. & A. f 8592, and the defendant files an affidavit of meritorious defense as therein provided for, the defendant is restricted to the defenses set up in his affidavit.</p> <p>19. Pleading, §. 152*—When municipality must file affidavit of meritorious defense. J. & A. If 8592, requiring an affidavit of meritorious defense to be filed with a plea where the plaintiff filed with his declaration an affidavit showing the nature of his demand, applies to municipal corporations.</p>

<p>1. Corporations, § 179*—what essential to mandamus to inspect books. A demand on a corporation by a stockholder for permission to examine the corporation books is an essential prerequisite to the award of a writ of mandamus to compel the corporation to permit such examination.</p> <p>2. Corporations, § 179*—who has burden of proof of demand on mandamus to inspect books. In a proceeding for mandamus to compel a corporation to permit an examination of its books by a stockholder, the burden of proof of a demand on the corporation is upon the relator.</p> <p>3. Corporations, § 179*—when evidence shows no demand to inspect books. In a proceeding for mandamus to compel a corporation to permit an examination of its books by a stockholder, a finding of the trial court that there had been no demand made by the relator on the corporation for such examination, held not contrary to the manifest weight of the evidence.</p> <p>4. Appear and error, § 1414*—when finding of fact not disturbed on appeal. Where a finding of fact by the trial court is not contrary to the manifest weight of the evidence, the Appellate Court is not at liberty to disturb the findings.</p> <p>5. Corporations, § 76*—what corporations not required to Jceep booJcs for inspection. J. & A. If 2430, requiring corporations to keep books at their principal offices or places of. business and to allow inspection thereof by their stockholders, does not apply to foreign corporations not doing business in this State.</p> <p>6. Corporations, § 708*—when foreign corporation not doing business in State. A foreign mining corporation, owning mines and transacting business in a foreign State, merely maintaining for convenience in the conduct of its internal affairs an office in this State, leased in the name of its treasurer, and owning no property in the State, aside from some office furniture, the greater part of its directors residing outside the State, is not doing business within the State, within the meaning of the act entitled “Corporations.”</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 90*—when evidence does not justify verdict for commissions. In an action to recover commissions for the sale of a machine by the defendant, alleged to have been made on information given him by the plaintiff, evidence held not to justify a verdict for the plaintiff.</p> <p>2. Costs, § 76*—what judgment for costs entered against plaintiff on reversal and nil capiat. Where on the evidence the finding of the trial court should have been for the defendant, a judgment for the plaintiff was reversed and a judgment of nil capiat and for costs to be taxed against the plaintiff, both in the trial court and in the Appellate Court, was entered in the Appellate Court.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ekrob, § 1744*—when findings of chancellor not disturbed on appeal. Where the only witnesses on a hearing before a chancellor are the parties to the proceeding and their testimony is sharply conflicting, the findings of the chancellor will not be disturbed on appeal unless manifestly contrary to the preponderating force of the evidence.</p> <p>2. Equity, § 305*—what degree of proof required. To entitle a complainant to relief "in a court of equity, he must establish his right thereto by a preponderance of the evidence.</p> <p>3. Gifts, § 29*—when evidence does not show that gift was made under agreement. In a suit to recover shares of stock alleged to have been given by the complainant to the defendant in accordance with an agreement between the parties, evidence held not to establish the existence of the agreement.</p> <p>4. Gifts, § 23*—what has no bearing on right of recovery. In a suit to recover voluntary gifts, the expectations of the donor of having them returned is of no importance in the absence of some expressed agreement or understanding that they should be returned.</p> <p>5. Guts, § 29*—when evidence shows gift voluntarily made. In a suit to recover gifts, evidence held to show that they were voluntarily made and hence not recoverable.</p> <p>6. Gifts, § 27*—what assumed in suit by lawyer to recover. In a suit by a lawyer to recover gifts alleged to have been made in pursuance of an agreement that if the donee should live with and take care of donor during her lifetime, the latter would on her death leave her property to the donee, held that it must be assumed that the donor knew that written evidence of such agreement was a legal necessity to the enforcement thereof.</p> <p>7. Gifts, § 27*—what assumed in suit by lawyer to recover. In a suit by a lawyer to recover gifts of stock alleged to have been made in pursuance, of an agreement that the donee should live with and take care of the donor during her lifetime, held that it must be assumed that the donor knew, as a matter of law, that the shares, being made out in the name of the donee and delivered to her, became her absolute property.</p> <p>8. Gifts, § 27*—what assumed in suit ly lawyer to recover. In a suit by a lawyer to recover shares of stock made out in the name of the defendant and alleged to have been given her for safe keeping but not with the intention of passing title, held that it must be assumed that the complainant knew that an "indorsement was necessary to pass title to complainant.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walkeb, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Lockwood Honoke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

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

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

<p>Error to the Circuit Court of Cook county; the Hon. Chakles H. Bowles, 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, § 457*—when admissibility of evidence not considered on appeal. In an action on a written assignment of wages by the assignee against the employer, held that the defendant’s objection, that the plaintiff’s testimony on the trial that he mailed a notice of assignment to the defendant was a mere conclusion of the witness and that the contents of the notice were not shown, was not available to the defendant on appeal since he had not raised the objection in the trial court.</p> <p>2. Assignment, § 36*—when evidence shows authority to receive notice of assignment of wages. In an action on an assignment of wages against the employer, by the assignee, evidence tending to show that the party to whom the plaintiff gave notice by mail of the assignment was the vice president and secretary of the defendant company, and testimony of its president that in his absence such party opened all the mail addressed to the company, was sufficient to establish the agency of such party to receive the notice.</p> <p>3. Aepeai and error, § 1679*—where variance between summons and statement of claim is waived. Where it was contended on appeal by a defendant that its motion in arrest of judgment should have been sustained for the reason that there was a variance between the summons, naming as defendant certain individuals doing business as a company, and the amended statement of claim, designating the defendant as a corporation, held that inasmuch as the defendant entered its appearance as a corporation to the original summons and statement of claim and subsequently the plaintiff filed the amended statement of claim, designating the defendant as a corporation, to which the defendant filed an affidavit of merits, the defendant’s contention was without merit.</p>

<p>Abstract of the Decision.</p> <p>1. Bbokebs, § 77*—when variance between alleged contract for commission and proof immaterial. In an action by a broker to recover a commission for the sale of the defendant’s real estate, held that there was no variance between the evidence offered, consisting of a written contract whereby the defendant agreed to pay the plaintiff $500 as commission for negotiating the sale, and the statement of claim alleging the defendant’s promise to pay the sum of $500 “which is the reasonable, usual and customary commission for such services so performed by plaintiff and as established by the rules of the Chicago Real Estate Board of which plaintiff was then and there a member,” since after putting in evidence the written contract it became unnecessary for the plaintiff to prove that $500 was a reasonable, usual and customary commission.</p> <p>2. Bbokebs, § 36*—what constitutes performance by broker. In an action by a real estate broker for a commission for the sale of defendant’s property, on a contract providing for the payment of a certain amount as commission “for consummating the sale” of the property on or before a certain date at a price to net the defendant a certain sum, held that the plaintiff was entitled to recover on proof showing that before the date mentioned he obtained from a prospective purchaser a binding contract for the purchase of the property at the price named by the defendant plus the amount of the plaintiff’s commission and secured a deposit of earnest money, it not being contended that the prospective purchaser was not ready and willing to carry out the terms of the contract.</p>

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

<p>Abstract of the Decision.</p> <p>1. Assumpsit, Action of, § 89*—vihen evidence shows contract for worlc, labor and materials. In an action for work, labor and materials alleged to have been furnished the defendant by the plaintiff, in which the defendant denied that he had contracted therefor with the plaintiff, evidence held to justify a judgment for the plaintiff.</p> <p>2. Assumpsit, Action of, § 88*—when memoranda of worlc done under contract admissible. In an action by a contractor for labor, work and materials furnished the defendant, held that the plaintiff’s “job tickets,” consisting of copies made by the plaintiff after the completion of the work from memoranda made by him on slips of paper as the work was being done, were admissible in evidence, the slips having been destroyed, on the ground that the original memoranda were not available and that the “job tickets” were his books.</p> <p>3. Judgment, § 247*—when entry after remittitur proper. The action of a trial court in setting aside a judgment for the plaintiff and, after a remittitur had been made, entering judgment for the amount remaining, held unobjectionable.</p>

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

<p>Injunction, § 80*—when proper to enforce contract not to engage in business. Where a saloon keeper entered into a contract with a saloon proprietor to work for him for a certain number of years and not to engage in the saloon business within a certain territory, for a specified number of years thereafter, the contract being terminable by either party on written notice to the other, and, Ipefore the expiration of the agreed period' of employment, the saloon keeper terminated the contract and opened a saloon in the restricted territory, held that he was properly enjoined from conducting the saloon, the proprietor not having exercised his option to terminate the contract.</p>

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

<p>Abstract of the Decision.</p> <p>1. Negligence, § 162*—when evidence as to conduct of child at and after accident is admissible. In an action for the death of a child four years old which was run over by a dump wagon which was attached to a sprinkling wagon, held that, although it was admitted that the death of deceased was caused by his being run over by the dump wagon, evidence as to his conduct and actions at and just before the occurrence of the accident was admissible.</p> <p>2. Negligence, § 191*—when negligence of driver of wagon in injuring child is question for jury. In an action for the death of a child four years old which was run over by a dump wagon which was attached to a sprinkling wagon, where it appeared that the driver of the sprinkling wagon was seated upon a high seat in such a position that he might have seen, had he looked, what a crowd of children were doing at the time of and just before the accident; that the horses were walking, and that the driver did in fact see these children as he approached them, held that it was a question for the jury to determine whether the driver might have anticipated that any one of these children would, under the circumstances, do as deceased did and by the exercise of reasonable care could have avoided the accident.</p>

<p>Bills and notes, § 86*—When one signing name on hack of note not a guarantor. One, not otherwise a party to a negotiable promissory note, who had placed his name on the back thereof, held not a guarantor but an indorser, so that notice to him of presentment for payment and dishonor was necessary to hold him liable thereon.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the March term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Accord and satisfaction, § 3*—what is essential to mate accord and satisfaction a defense. Where a defendant resisted recovery on the ground that one of the plaintiffs had released him from payment of a certain interest charge, held that, inasmuch as there was no dispute as to the amount owing, there could be no accord and satisfaction on payment of an amount less than that due as there was no consideration for the promise.</p> <p>2. Judgment, § 208*—when judgment non obstante veredicto properly entered. Where the defense embodied in an affidavit of merits does not state facts, which, if uncontroverted, would entitle the defendant to prevail, a judgment non obstante veredicto should be entered on the plaintiffs’ motion.</p> <p>3. Accord and satisfaction, § 7*—When affidavit of merits setting up is insufficient. Where an affidavit of merits stated that there was an accounting between the plaintiffs and the defendant and the amount of the defendant’s indebtedness settled in such accounting, that such amount was to be secured by a mortgage and that the negotiation of the mortgage resulted in the payment of commissions, without stating to whom the commissions were paid, held that as such expense, unexplained, was the mortgagor’s, and no intendment to the contrary could be indulged in the absence of any direct statement concerning it, the affidavit presented to meritorious defense,' and that the plaintiffs’ motion for a judgment non obstante veredicto should have been granted.</p> <p>4. Appeal and error, § 1810*—when judgment on reversal entered in Appellate Court. Where, in an action in the Municipal Court of Chicago, the amount claimed by the plaintiffs was liquidated, fixed and ascertained and the defendant’s affidavit of merits did not state a valid defense, a judgment for the defendant was reversed and judgment for the plaintiffs for the amount claimed together with interest to the filing of the opinion was entered in the Appellate Court. .</p>

<p>Abstract of the Decision.</p> <p>1. New trial—when refusal to grant motion for is not error. In a trial before the court without a jury, error cannot be assigned on the failure of the court to grant a motion for a new trial, because no such motion is necessary, and the error, if any, in such condition arises on the court’s finding in the entry of judgment thereon.</p> <p>2. Gabriebs, § 476*—when evidence sufficient to sustain judgment for defendant in action for personal injuries. In an action by a street car passenger against the street railway company for damages for personal injuries sustained while plaintiff was attempting to leave the car, and in which defendant contended that plaintiff was thrown and injured in attempting to get off while the car was in motion and before it had stopped, evidence held sufficient to support a judgment for defendant.</p> <p>3. Appeal and error, § 1414*—when finding of trial court will not be disturbed: The finding of a trial judge will not be disturbed on appeal as unsupported by the evidence unless such finding is manifestly contrary to the probative force of the evidence.</p> <p>4. Dismissal, nonsuit and discontinuance, § 43*—when motion for nonsuit is too late. A motion for a nonsuit in a case tried without, a jury cannot be entertained after the trial court has announced its findings and declared its decision of the case.</p>

Interlocutory appeal from the Superior Court of Cook county; the Hbn. Wuxiam Fenimore Cooper, Judge, presiding. Heard in this court. Certiorari denied by Supreme Court (making opinion final).

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

<p>Abstract of the Decision.</p> <p>1. Building and construction contracts, § 65*—What is effect of final certificate of architect. Where a building contract provides for the construction of a building according to certain plans and specifications for a certain price, that the work shall be done under the direction of an architect and that his decision shall be final, that the payment shall be made only upon his certificate and that the final certificate shall be conclusive evidence of the performance of the contract, and such final certificate is issued and defendant refuses to pay, the defendant is limited to the defense of fraud and mistake in the issuance of the final certificate.</p> <p>2. Municipal Court op Chicago, § 13*—when affidavit of defense is insufficient as a legal defense.' In an action by a building contractor against the owner to recover an alleged balance due on the contract after issuance of a final certificate under the contract and refusal of the owner to pay, an affidavit of defense held to be unresponsive to the issues tendered by the statement of claim and to be insufficient as a legal defense.</p> <p>3. Building and construction contracts, § 65*—when evidence sufficient to show architect’s certificate is final. In an action by a building contractor to recover an alleged balance due on the contract after issuance of an alleged final certificate by the'architect and refusal of the owner to make payment, evidence held sufficient to show that such certificate was a final one and intended as such.</p> <p>4. Building and construction contracts, § 103*—when evidence sufficient to show waiver of architect’s certificate as final. In an action on a building contract, evidence held sufficient to show waiver of an architect’s certificate as a final certificate.</p> <p>5. Building and construction contracts, § 103*—when evidence insufficient to impeach final certificate. In an action on a building contract, evidence held insufficient to show fraud or mistake which would impeach a final certificate issued by the architect.</p> <p>6. Building and construction contracts, § 65*—what constitutes a final certificate. A final certificate issued by an architect is one which is issued after a job is done and whiclj. finally determines the rights of the parties as to money and disputes.</p> <p>7. Set-off and recoupment, § 40*—when evidence insufficient to sustain plea of set-off. In an action on a building contract to recover a balance alleged to be due after the issuance of a final certificate and in which defendant filed a plea of set-off for alleged defects in construction, evidence held insufficient to sustain a plea of set-off.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Execution, § 302*—who has burden of disproving malice on petition for discharge of insolvent debtor. On a hearing on a petition of an insolvent debtor for release from imprisonment on an execution in an action of which he claims malice was not of the gist, the burden of proof of such claim is on the petitioner.</p> <p>2. Execution, § 295*—what is not conclusive as to whether malice was gist of action. The mere fact that the statement of claim, filed in an action in which a capias ad satisfaciendum issued, does not disclose that malice was of the gist of the action does not entitle an insolvent debtor to release from imprisonment under such an execution, since the evidence offered on the trial may have been sufficient to support the judgment on which the capias was issued.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

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

<p>Abstract of the Decision.</p> <p>I. Account, § 40*—when case should he referred to master. On' a bill for an accounting where the items are numerous, the testimony questionable and the accounts complicated, the court should refer the case to the master with direction to take and report the evidence and to- state and report an account between the parties so that upon objection and exception particular items may be open- for investigation on appeal, and so that it will not be necessary to examine the whole account.</p> <p>2. Account, § 40*—when parties may not stipulate for hearing before court. The parties to a bill for an accounting which should properly be referred to a master may not stipulate that such hearing máy be had before the court instead of before the master.</p> <p>3. Equity, § 66*—when maxim that he who comes into equity must come with clean hands is inapplicable. Where a cause of action has its origin in iniquity, a court of chancery will not lend its aid to a complaining party by dismissing the suit because “He who comes into equity must come with clean hands,” but where the iniquity does not go to the right of action itself but affects only the proof of certain items incidentally connected therewith, the rule cannot be extended to preclude the complaining party from obtaining the relief sought as to other items in an action for an accounting which the evidence clearly shows to be untainted with such iniquity.</p> <p>4. Account, § 55*—when decree on bill for accounting will be reversed and cause remanded with directions to re-refer cause. Where a bill for an accounting, which involves the consideration of a complicated account and questionable testimony, is improperly heard by the court instead of by the master, the decree will be reversed and the cause remanded with directions to re-refer the same to the master to take and report the testimony and to take and state an account.</p> <p>5. Costs, § 79*-—when costs on appeal in reversed and remanded cose taxed equally between parties. On a bill for an accounting against the administratrix of the estate of a deceased person in which the decree was reversed and the cause remanded, where the case had not been heard by a master, instead of by the court, held that the costs of appeal should be taxed one-half to the complainant and one-half to the defendant.</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>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 263*—what alteration not a defense to maker. In an action, by an innocent holder for value, on a promissory note executed by the defendant who denied that the words “after maturity” following the interest clause in the note were there when she executed it, held that even though the defendant’s claim were true such words would not constitute such an alteration as would he a valid defense, since their effect would he simply to reduce the period for which she would be liable for interest.</p> <p>2. Bills and notes, § 415*—when "burden of proof on maker to show alteration after signature. In an action on a promissory note made by the defendant, held that in order that a certain alteration, claimed by the defendant to have been made in the note, should operate as a defense, the burden of proof was on her to show that the alteration was made after she signed the note.</p> <p>3. Bills and notes, § 423*-—what evidence not admissible to show holder's knowledge of infirmity in note. In an action on a promissory note made and indorsed by the defendant and by her delivered to a company whose treasurer indorsed it as treasurer and delivered it to the plaintiff’s assignor, where the defenses were failure of consideration for the note, that it was negotiated by the company in breach of faith and without authority and that the plaintiff had knowledge of such facts and was not the holder in due course, held that the exclusion of secondary evidence of the contents of a resolution of the company, made in due course of business, which was alleged among other things to authorize the company to discount notes and its president and secretary to indorse them, which resolution was delivered to the plaintiff by its assignor, was not erroneous, as such resolution contained no notice to the plaintiff of any infirmity or defect in the title of the company negotiating the note.</p> <p>4. Bills and notes, § 420*—when evidence of negotiation of note in breach of agreement not admissible against holder. In an action on a promissory note by a holder for value against the maker, where the defense was that the defendant’s transferee had transfered the note in breach of an agreement with the defendant, held that in the absence of evidence showing any knowledge on the part of the plaintiff of such agreement, evidence of such agreement and of negotiations leading up thereto were properly excluded.</p> <p>5. Evidence, § 450*—how handwriting could not be proved. In an action on a promissory note tried before the going into operation of the present statute permitting proof of handwriting by comparison with pleadings properly in the files or records of a case, held that permitting one of the plaintiff’s witnesses to compare the defendant’s signature on certain pleas filed in the case with the signature on the note was error, though not prejudicial, in view of the fact that the defendant did not deny that she signed the note.</p> <p>6. ' Appeal and error, § 1500*—when refusal to strike from short-cause calendar not reversible error. The action of the trial court in refusing to strike an action on a promissory note from the short-cause calendar on the defendant’s motion made immediately before the trial and repeated after the trial had occupied two hours, held not reversible error where it did not appear that the defendant had been prejudiced thereby or that there had been any abuse of discretion.</p>

<p>Workmen’s Compensation Act, § 7*—what constitutes loss of sight of an eye. Where the Industrial Board, upon an employer’s petition for a review of a finding and award of the committee of arbitration for the loss of an eye, approved and affirmed the award and held that the evidence showed that the permanent effect of the injury was to leave the employee so that he was only able to distinguish light and objects moving before the eye, held that, though there was no evidence of a complete destruction of vision of the injured eye, yet, as the evidence tended to show that the use of the eye was permanently lost for all practicable purposes, there was evidence sufficient to bring the ease within paragraph (e) of section S of the Workmen’s Compensation Act [J. & A. jf 5475(8)], giving compensation for loss of the sight of an eye, and so within the jurisdiction of the board.</p>

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

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

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

<p>1. Justices of the peace, § 247*—«Aere case is tried de novo on appeal to Circuit Court. On an appeal from a justice of the peace to- the Circuit Court the cause is tried de novo, and may be proceeded with as if nothing had occurred in the justice court.</p> <p>2. Justices of the peace, § 165*—-what is extent of recovery on appeal to Circuit Court. Where a suit is brought upon a note in a justice court and an appeal is taken to the Circuit Court, recovery may be had for any and all items which can properly be joined in one action as long as the total does not exceed $200.</p> <p>3. Justices of the peace, § 253*—when additional causes of action may not he brought into case on appeal to Circuit Court. Where a suit brought before a justice of the peace is appealed to the Circuit Court and trial had de novo, items that might otherwise properly be brought in by a bill of particulars may not be brought in where the time limited by the statute of limitations has elapsed between the accrual of the additional cause of action and the time when it was brought into the suit.</p> <p>4. Limitation of actions, § 90*—when payment does not revive claim. A payment will not revive a claim barred by the statute of limitations unless there is an actual affirmative intention shown on the part of the debtor to make payment on the debt which is claimed to be due.</p> <p>5. Appeal and ebbob, § 1810*—when final judgment should he entered upon reversal. Where a judgment is reversed but the evidence discloses the amount due, final judgment should be entered.</p>

<p>Abstract of the Decision.</p> <p>1. Judicial sales, § 38*—when question whether indorsement of master’s certificate in blank is legal assignment is immaterial. On a bill by the rightful owner of a certificate of sale of property, which certificate had been delivered to complainant’s attorney for the purpose of procuring a loan from a specified bank, against a sheriff and a subsequent assignee who derived title through an illegal assignment by such attorney, to compel the delivery of such certificate of sale and the payment of moneys received by the sheriff for redemp-" tio-n of such real estate described therein, held that the question whether an indorsement of the master’s certificate in blank constituted a legal assignment was immaterial.</p> <p>2. Alteration of instruments, § 10*—when question of estoppel of principal by leaving instrument indorsed in blank with attorney is not involved. On a bill by the rightful owner of a certificate of sale of property against the sheriff and a subsequent assignee, deriving title through an illegal assignment to compel the delivery of such certificate of sale and payment of money received by the sheriff from the redemption of real estate, where such certificate was turned over to an attorney by the owner for the purpose of procuring a loan, held that the question whether one who has indorsed an instrument in blank and left it with his attorney is estopped to deny the ownership of a bona fide purchaser, was not involved.</p> <p>3. Alteration of instruments, § 2*—what constitutes material alteration of certificate of sale. Where a master’s certificate of sale of property is delivered by the owner to his attorney for the purpose of procuring a loan and contains an indorsement by the owner with the name of a specified bank written just above the indorsement, the erasure of the name of such bank constitutes a material alteration where made without authority of the owner.</p> <p>4. Alteration of instruments, § 14*—when alteration of certificate of sale by attorney is not a mere spoliation. The contention that the erasure of the name of the bank above an indorsement of the owner of a master’s certificate of sale which had been delivered to the owner’s attorney for the purpose of securing a loan is a mere spoliation which does not invalidate the instrument when done by an agent of the party, is without force where it appears that such attorney had no authority to make such alteration and it is apparent from the use of the name of the bank above the indorsement that it was the intention of the owner to limit the attorney’s authority to transfer title only to such bank.</p> <p>. 5. Alteration of instruments, § 14*—when principal is not negligent in leaving certificate of sale indorsed in blank with attorney. The owner of a master’s certificate of sale of property who delivers such certificate of sale to his attorney with an indorsement, of the owner’s name thereof and the name of a bank written just above the indorsement is not negligent in leaving such instrument in the hands of such attorney, although such attorney alters such instrument and makes it payable to himself and by assignment procures money therefor.</p> <p>6. Alteration of instruments, § 15*—what are rights of purchaser of certificate of sale illegally altered. One who purchases a master’s certificate of sale from an attorney, to whom such certificate had been delivered with an indorsement of the owner’s name thereof and the name of a specified bank written just above such indorsement for the purpose of procuring a loan from such bank, procures no title or interest where such attorney erases the name of the bank above such indorsement and inserts his own name and words of assignment.</p> <p>7. Alteration of instruments, § 15*—when decree compelling surrender of certificate of sale illegally altered and assigned by attorney not inequitable. On a bill by the owner of a master’s certificate of sale of property to compel the holder of such certificate who had procured it through an illegal assignment by an attorney of the owner, to which attorney the owner had delivered such certificate with his indorsement thereon and the name of a specified bank written just above such indorsement for the. purpose of obtaining a loan from such bank, to compel the delivery of such certificate of sale, and to compel a sheriff to pay to him moneys received for the redemption of such real estate, held that the decree was not subject to the objection that it did not require the complainant to do equity, since it did not in any way empower the attorney to defraud any one and the loss was due solely to the attorney’s wrongful act.</p>

<p>Abstract of the Decision.</p> <p>1. Attorney and client, § 150*—when notice of lien sufficient. A notice of an attorney’s lien which sets out an agreement made between the client and the attorneys, under which they were to prosecute the client, and states that by the terms of such agreement such attorneys were to receive for their services fifty per cent, of any sum realized on said claim or cause of action, is sufficient.</p> <p>2. Attobney and client, § 146*—what is extent of enforceable lien of attorneys upon settlement between client and debtor. Where a contract between attorneys and the client'provides for the contingent fee of one-third of any amount which might be paid before suit and one-half of any amount which might be recovered after suit, and the debtor is served with notice of a lien claiming for services fifty per cent, of any sum realized upon such claim or cause of action and a settlement is made between the client and the debtor, without the knowledge or consent of the attorneys, for a specified sum which the debtor states the client is to receive “clear for herself,” the attorneys are entitled to a sum equal to that paid to the client, especially where it is apparent that the debtor intended to discharge the obligation to the attorneys.</p>

<p>Abstract of the Decision.</p> <p>Appeal and error, § 1414*—when judgment not disturbed as unsupported by evidence. A judgment of the court on trial without a jury will not be disturbed as unsupported by the evidence where the evidence is conflicting and the judgment is not contrary to the manifest weight of the evidence.</p>

<p>1. Insurance, § 347*—when policy containing incontestable clause becomes incontestable. Where a life insurance policy provided that it would remain in force for one month after the expiration of one year from its date although the second year’s premium should not be paid, and that after one year from date it would be incontestable except for nonpayment of premiums, held that at the death of the insured, which occurred in the thirteenth month after the date of the policy, it had become incontestable on the ground of fraudulent statements in the application.</p> <p>2. Insurance, § 641*—when notice of cancellation inadmissible. In an action on a life insurance policy, incontestable after one year from the date thereof, except for nonpayment of premiums, held that a written notice given to the insured by the insurer within one year of the date of the policy, that it would not be carried after the expiration of the year was inadmissible to prove cancellation of the policy, since it was a notice to terminate it at a future time when it was incapable of termination by the insurer.</p> <p>3. Insurance, § 359*—what is effect of attempted cancellation. An ineffectual notice of cancellation of a policy is a recognition of its validity.</p> <p>4. Insurance, § 187*—what essential to cancellation of policy. Where the insurer under a life insurance policy, incontestable after one year from date, gave notice to the insured during the first year that it would not carry the policy after the termination of the first year, held that, as the policy was a voidable contract and as the attempted cancellation was in the nature of a rescission, both apt notice of an election to terminate in prcosenti and a tender back of the premium were essential to terminate the policy.</p> <p>5. Insurance, § 641*—When evidence of cancellation of policy inadmissible. Evidence of notice to the insured, under a life insurance policy,' by the insurer- that it had elected to terminate the policy, held properly excluded where the insurer’s counsel admitted that they did not intend to prove a tender back of the premium.</p> <p>6. Insurance, § 702*—what recoverable in action on life insurance policy. Interest on the amount of a policy of life insurance is recoverable in an action thereon.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, -§ 1399*—when master’s findings of fact will not he disturbed on appeal. In an equity suit where the testimony is conflicting and contradictory, requiring the master to pass on the credibility of witnesses, his finding of facts will not be reversed unless clearly and palpably .contrary to the weight of the evidence.</p> <p>2. Mobtgages, § 503*—when evidence justifies dismissal of hill to foreclose. On a bill to foreclose a mortgage by assignees of notes secured thereby, who elected to foreclose in accordance with the terms of the mortgage on nonpayment of interest due on one of the notes, such notes having been assigned to the complainants by the deceased mortgagee in her lifetime, an intervening petition having been filed by the husband of the mortgagee, claiming to be the legal owner of the notes, where the evidence satisfactorily showed that the money loaned on the mortgage was that of the intervening petitioner, a decree dismissing the bill for want of equity, canceling the assignments and transfer of the notes to the complainant, declaring the intervening petitioner the legal and equitable owner of the notes and ordering the complainant to transfer them to him, held, proper.</p> <p>3. Appeal and ebbor, § 1488*—when admission of improper evidence 5y master not ground for reversal. In an equity suit, held that the defendant’s objection that improper evidence was heard by the master need not he considered where the defendant’s objection to such evidence was sustained by the master and he reported that he had not considered it in reaching his conclusions and there was evidence apart therefrom sufficient to warrant his conclusions and findings of fact.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

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

<p>Abstract of the Decision.</p> <p>1. Judgment, § 204*—when entry of for sum larger than claimed in declaration is improper. The entry of a judgment for a larger sum than that claimed in the declaration is error.</p> <p>2. Judgment, § 88*—when appeal lies to review the overruling of a motion to vacate a judgment by confession. Where a defendant by his attorney in fact, duly authorized, confesses judgment and releases all errors, an appeal or writ of error will not lie to review the judgment itself, but will lie to review the overruling of a motion to vacate the judgment.</p> <p>3. Appeal and error, § 360*—when variance between damages claimed in declaration and in the cognovit is waived. Any error committed in entering a judgment in an action for rent due to variance between damages claimed in the declaration and in the cognovit is waived where the power of attorney to confess judgment is contained in the lease and authorizes the waiving of all errors and the cognovit expressly releases all errors.</p> <p>4. Partnership—when members signing lease are individually bound. Where a lease purports to be to a copartnership but is signed by the partners individually, it becomes their individual lease.</p> <p>5. Descent and distribution, § 45*—who is entitled to rent accruing after death of owner of demised premises. Rent accruing after the death of the owner of demised premises is a chattel real, and goes to the heir or devisee of said deceased owner, and not to his administrator or executor.</p> <p>6. Landlord and tenant, § 279*-—when wrongful act of landlord does not debar him from recovery of rent. The wrongful act of á landlord does not debar him from the recovery of rent, unless the tenant by such act has been deprived in whole or in part of the possession either actually or constructively, or the premises rendered useless.</p> <p>7. Landlord and tenant, § 262*—what does not constitute constructive eviction. There is no constructive eviction of a tenant where he remains in possession of the premises nearly six months after acts complained of.</p> <p>8. Judgment, § 81*—what defendant seehing to vacate judgment by confession must show. A defendant seeking to vacate a judgment by confession must make a clear showing that he has a defense to the action.</p> <p>9. ’ Judgment, § 82*—how affidavit in support of motion to vacate judgment by confession construed. Affidavits in support of a motion to vacate a judgment by confession must be construed most strongly against the defendant.</p> <p>10. Appeal and error, § 1380*-—when denial of motion to vacate judgment 6y confession is conclusive. A motion to vacate a judgment entered by confession is addressed to the sound legal discretion of the trial court, whose action in denying it will not be reviewed unless it appears that it has been abused.</p>

<p>Error to the Circuit Court of Jersey 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 Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the April term, 1916.</p>

■Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1916. Certiorari denied by Supreme Court (making opinion final).

<p>1. Principal and surety, § 89*—what is not a defense to bill by sureties on official bond against depositary of public funds. Where a bank in which a defaulting county treasurer has deposited county funds, knowing the character of the funds, allowed the treasurer to withdraw certain sums therefrom for the payment of his individual obligations and for his personal use, on a bill in equity, filed by the sureties on the treasurer’s official bond, against the bank, praying that it be decreed and held to be a trustee to hold such funds impressed with a trust in favor of the complainants, to the extent that they had been compelled to make good the default of the treasurer, it was held that the defendant’s claim that the complainants were officers of certain banks which had agreed to indemnify the complainants in case of loss by reason of their becoming sureties on the bond, would, though true, be no defense to the suit.</p> <p>2. Principal and surety, § 83*—what is extent of right of sureties to subrogation. The equities of sureties extend to all the rights of creditors respecting the debts which the sureties pay, and sureties are considered subrogated to all the rights, remedies and securities of the creditors as to any fund, lien or equity which the creditor may have against any person or property on account of the debt.</p> <p>3. Official bonds, § 40*—when depositary of public funds liable to sureties malting misappropriation good. A bank having received payment of notes and overdrafts, made by a county treasurer in his individual and personal accounts, from funds belonging to the county deposited in the bank to the order of the treasurer as treasurer, held accountable, for money so misappropriated with the knowledge of the bank, to sureties on the treasurer’s official bond who had made good to the county the amount of the treasurer's misappropriation.</p>

<p>Executors and administrators, § 269*—when foreign judgment not admissible in support of claim against estate. Where an executor appointed in this State has, in accordance with the directions in the will, prosecuted a suit in a foreign State without taking out ancillary letters of administration in that State, and the defendant in a cross action has recovered a judgment against the executor, a transcript of that judgment is not admissible in evidence in support of a claim filed thereon by the defendant against the estate of the deceased in this State.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1035*—When rulings cannot he considered on appeal. Rulings not assigned as error cannot be considered on appeal.</p> <p>2. Attachment, § 17*—When evidence shows defendant is a resident of a foreign State. In an attachment suit, evidence held to justify a finding that one of the defendants was a resident of a foreign State at the time of the commencement of the suit.</p> <p>3. Sales, § 329*—when evidence justifies judgment for goods sold. In an action for the purchase price of merchandise sold by the plaintiff to the defendants, evidence held to justify a judgment for the plaintiff.</p> <p>4. Principal and agent, § 8*—when evidence shows agency to purchase. In an action for the purchase price of merchandise sold by the plaintiff to the defendants, evidence showing, among other things, that one of the defendants arranged meetings between plaintiff and the other defendant, and conducted most of the negotiations in the presence of the latter, held to justify a finding that the former, defendant was an agent of the latter so as to make the former’s statements admissible against the latter.</p> <p>5. Trial, § 233*—when refusal to send pleadings to jury room is not error. Refusal of a trial court to send the pleadings to the jury room, held not error.</p> <p>6. Contracts, § 377*—when evidence of prior negotiations is admissible. Where only a part of a contract sued upon has been reduced to writing, evidence of the negotiations and facts occurring prior to the time of . the making of the contract is admissible in evidence.</p> <p>7. Attachment, § 237*—when judgment proper on count not covered by affidavit. In an action of assumpsit for goods sold and delivered and for work and labor, in which a writ of attachment had been issued but no property levied on thereunder, where the general issue only was pleaded, held that a judgment including a recovery on the count for work and labor could be sustained, though the attachment affidavit" did not state that anything was due for work and labor.</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 -DeWitt county; the Hon. Frank H. Boggs, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Cancellation of instruments, § 26*—when doctrine of laches cannot he invoiced. The doctrine of laches, because of delay in the commencement of a suit to rescind a contract to exchange property, cannot be invoked by a party who fraudulently concealed the acts of his own fraud in misrepresenting the value of the exchanged property, in falsely representing after the party ascertained the worthless character of exchanged land and demanded reconveyance of the land conveyed by him and the return of notes given in part payment that such land had been conveyed and the notes had been assigned to a bona fide purchaser for value.</p> <p>2. Cancellation of instruments, § 2*—when inability to malee restitution to the statu quo not a defense. The inability of the complainant in an action to cancel a contract of exchange of property to place the defendant in statu quo is not available as a defense where at the time complainant gave his note and conveyed land in exchange for the land conveyed by defendant, defendant misrepresented the value of his land and subsequently upon eomplainant’s learning oí such, fraud, fraudulently represented that the land which he had received had been conveyed and the note assigned to a bona fide purchaser for value, and complainant relying upon such statement conveyed the land received from defendant to another.</p> <p>3. Cancellation or instruments, § 2*—When offer to place defendant in statu quo unnecessary. An offer to place a defendant to a suit for the cancellation of a contract for exchange of real property on the ground of fraud in statu quo is unnecessary where the property which complainant received is of no value.</p>

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

<p>Error to the County Court of Morgan county; the Hon. William E. Thompson, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>1. Cashiers, § 248*—when evidence in action for loss of shipment does not show carrier at fault. In an action for damages for the, death of calves shipped by the plaintiff over the defendant’s railroad, evidence held to show that the defendant did not load the shipment and that the loss was not caused by any -fault on its part.</p> <p>2. Carriers, § 232*—when carrier not liable for loss of shipment of cattle. A railroad company is not liable for loss of part of a shipment of cattle resulting from the cars being overcrowded where it was overcrowded by the shipper or persons acting for him.</p> <p>3. Carriers, § 228*—when carrier not liable for death of cattle shipped. A railroad company held not liable for the death of calves shipped over its line where the loss was caused by their own lack of vitality, and not by any fault or negligence of or the violation of any duty by the carrier.</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, 1916.</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, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>Accord and satisfaction, § 8*—when evidence shows part payment was not an accord and satisfaction. In an action for goods sold and delivered by the plaintiff'to the defendant, the clear and manifest weight of the evidence held to show that the giving of an order by the defendants to the plaintiff for the payment of money was not intended to be an accord and satisfaction of the debt.</p>

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

<p>Abstract of the Decision.</p> <p>1. OnrcBBS, § 24*—how resignation of office may he made. A resignation of a public office may be either express or by implication.</p> <p>2. Qeticebs, § 24*—what constitutes resignation of police officer. The action of a city marshal in surrendering the insignia of his office and the property of the city in his possession, after receiving a letter from the mayor requesting such resignation and making no attempt thereafter to perform the duties of the office, held a resignation of the office.</p> <p>3. Municipal cobpobattons, § 1237*—what is effect of award of execution against. It is reversible error, in rendering judgment against a municipal corporation, to award an execution therefor against it.</p>

Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1916. Statement by the Court. On October 16, 1902, E. W. Blaine, a widower, and the owner in fee simple of one hundred and eighty acres of farm land in Champaign county, Illinois, executed and acknowledged three warranty deeds.

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

<p>Appeal from the Circuit Court of Edgar county; the Hon. John H. Maeshahl, Judge, presiding. Heard in this court at the April term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Husband and wife, § 274*—what proof necessary to warrant conviction of wife abandonment. In order to warrant a conviction for wife abandonment, the proof must show such a state of facts as would, if they continued for the period of two years, warrant the granting of a divorce to the wife on the ground of desertion.</p> <p>2. Husband and wife, § 273*—what is a defense to prosecution for wife abandonment. If the separation of husband and wife is due to the desertion of the husband by the wife, or if it is by mutual agreement of the parties, the husband cannot be held amenable to the criminal law or be held guilty of desertion.</p> <p>3. Husband and wife, § 274*—when evidence insufficient to justify conviction for wife abandonment. On a prosecution for wife abandonment, evidence showing, among other things, that the defendant, a traveling insurance solicitor, leased and maintained a house after his wife had gone to visit her relatives, and told her that when she was ready to come home he would come after her, that after several months, on the wife’s not returning, he surrendered the lease and the wife stated on the witness stand that if the defendant had done what was right she would have been willing to live with him, held not to justify a conviction.</p>

<p>Abstract of the Decision.</p> <p>1. Schools and school distbicts, §" 65*—what essential to validity of election to build schoolhouse. An election held for the purpose of choosing or changing a schoolhouse site, building a new schoolhouse or issuing bonds is a special election and must be called by the directors of the school district in which the election is to be held.</p> <p>2. Schools and school districts, § 56*—when directors cannot act as a board. School directors cannot act as a board except at a general or special meeting.</p> <p>3. Schools and school districts, § 56*—how proceedings at directors’ meetings must be established. The only way the facts can be established that a regular or special meeting of a board of school directors was held or what, if any, business was transacted at such meeting is by the record which the law requires shall be kept in such matters.</p> <p>4. Schools and school districts, § 56*—when purported record of directors’ meeting insufficient to show election was duly called. On a bill for an injunction to restrain the building of a schoolhouse, on the ground that no election on the proposition had been properly called and held, a writing purporting to be a record of a meeting held by the school directors, drawn up by an attorney and pasted into the record book of the directors three months after the suit had been brought, reciting that a meeting of the directors had been held after due notice given them at a certain place and time, naming the directors who were present; that the object of the meeting was to act upon the question of calling a special election to vote upon the question whether a new schoolhouse should be built, etc.; that it was ordered that a special election be called for the purpose of voting upon the question whether a new schoolhouse should be built, etc., but not stating that an election wg,s called nor when or where it was intended that such election should be held, when it should be called, was not proper proof that such election had been properly called.</p> <p>5. Schools and school districts, § 56*—when recitals in posted notices of election, insufficient to show that directors had called election. Recitals in posted notices of an election to be held on the question whether a new schoolhouse should he built, a site purchased and bonds issued in payment therefor, reading “by order of the board of directors of the said district, dated this 27th day of July, 1914,” held not- acceptable as proof that an election had been properly ordered by the board.</p> <p>6. Schools and school districts, § 65*—when building of new schoolhouse should be enjoined. On a bill for an injunction to restrain a board of school directors and a building contractor from changing a school site, building a new schoolhouse, and issuing bonds in payment therefor, held 'that there being no proper proof that any special election was called submitting the proposition to the voters, the injunction should have been granted.</p> <p>7. Schools and school districts, § 86*—when evidence insufficient to show holding of valid election to build schoolhouse. On a bill to enjoin school directors and a contractor from proceeding with the erection of a schoolhouse, on the ground that no election had been properly called for a vote on the question whether the schoolhouse should be built, a writing, dictated by an attorney after the suit had been commenced, purporting to be a record of the holding of an election on the proposition and posting of notices and the result of such election, which writing was pasted in the directors’ record book, labeled “Amended Records,” held not to constitute proper proof of the holding and result of a legal election, especially when the election was void for want of proper preliminary steps, there being no proper proof of authority in the attorney to amend the record or of what record the writing was supposed to be an amendment</p>

<p>Abstract of the Decision.</p> <p>1. Divorce, § 11*—when desertion is a valid ground. Desertion, in order to be a valid ground for divorce, must not only be wilful and without reasonable cause in the beginning but must continue so for the period of at least two years.</p> <p>2. Divorce, § 9*—what does not constitute desertion. Living separate and apart by consent or by agreement will not constitute wilful desertion or entitle either party to a divorce on that ground.</p> <p>3. Divorce, § 48*—when evidence shows that desertion was not wilful. On a bill for divorce filed by a husband, based on desertion of the wife, the latter having filed a cross-bill for separate maintenance, where it appeared that five days after the wife left the husband, the parties entered into a contract in writing whereby the wife was to receive in lieu of all dower, homestead and other rights, arising from a marriage relation, all the household goods belonging to the parties and $3,000, held that the making of the contract, so soon after the separation, and in view of a recital therein that it was made because of such' separation and in contemplation of its continuance, amounted to such a consent to and an agreement for a separation as to deprive the living apart of the element of wilful desertion on the part of either of the parties.</p> <p>' 4. Husband and wife, § 267*—when instructed verdict for defendant in cross-hill for separate maintenance is proper. On a bill for divorce filed by a husband against his wife, where the latter filed a cross-bill for separate maintenance, averring that a contract of settlement entered into by the parties, whereby the wife received certain property in lieu of homestead rights, etc., was procured by force, duress and fraud, without averring any facts from which such force, duress or fraud could be inferred, and no proof having been offered to substantiate such averment, held that the jury were properly instructed to return a verdict for the defendant on the cross-bill.</p> <p>5. Husband and we™, § 219*—what is not justification for wife in leaving husband in action for separate maintenance. On a cross-bill for separate maintenance, held that the cross complainant’s contention that she was justified in leaving her husband because he furnished her no home except with his parents was untenable where it was shown that she lived with her husband’s parents only.during the first year of her marriage, and thereafter and at the time of the separation she and her husband lived separately from the latter’s parents although on the same farm.</p> <p>6. Husband and wife, § 264*—when evidence does not show cruelty and misconduct of husband in action for separate maintenance. In a suit for a divorce by a husband, where the wife filed a cross-bill for separate maintenance, alleging cruelty and misconduct on the part of the husband, evidente held to justify a finding for the defendant on the cross-bill.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 789*—when occupation does not cause partial forfeiture. In an action on a certificate of insurance issued toy a fraternal insurance association, held that the insured did not come within a provision of the constitution of the association providing that, “should any member engage, temporarily or otherwise, in any other occupation than that of * * * traveling agent, * * * commercial traveler, * * * proprietor of a manufactory, performing office duties only, * * * his beneficiary should be entitled to but one-half the sum to which such beneficiary would have been entitled to had he been engaged as a commercial traveler at the time the injury was received on which the claim of payment is based," where at the time of the member’s death he was employed as a commercial traveler for a company and was also a partner in a firm and acting as manager thereof on a salary, and engaged at 'the time of his death on a collecting trip for the latter concern, it being stipulated that the duties of such manager were “office work in the ways of bookkeeping, employing help to run the factory, purchasing materials used in manufacturing the output, and making trips to various points in Illinois in the interest of the firm, selling its output and collecting its accounts, and generally superintending its business affairs and had no duties in the factory.”</p> <p>2. Insurance, § 862*—when settlement does not amount to accord and satisfaction. Where a beneficiary in a certificate of benefit insurance received from the insurer an amount which it admitted was due, and the receipt of which it claimed constituted an accord and satisfaction of the entire amount claimed by the beneficiary, held in an action by the latter on the certificate that even if such sum was paid and accepted in full of all liability upon the certificate sued on, the agreement that it should be in full, not having any consideration to support it, would be a mere nudum pactum and not constitute an accord and satisfaction.</p> <p>3. Insurance, § 859*—when action on certificate is brought within prescribed time. In an action against a benefit insurance association on a certificate of insurance, a stipulated fact that the defendant, within six months before the bringing of the action, wrote to the plaintiff to the effect that it finally rejected the plaintiff’s claim and refused to allow her any amount further than that paid, held to show that the action had been brought within six months after the disallowance of a claim as required by the defendant’s constitution.</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>Payment, § 47*—when carrier is not liable to shipper of refected quarantined live stock for freight paid thereon. Where hogs were shipped from quarantine without an Assistant State Veterinarian’s permit therefor, and permission to unload them at their destination was refused because of the lack of such permit, and they were ordered by the shipper to be shipped back to their place of origin, he was compelled to pay the freight charges both ways in order to get possession of them, held that he could not recover such payment from the carrier, since the shipping of the hogs from the quarantine territory was illegal and both parties were in pari delicto, and- the payment of the money was part of the illegal transaction.</p>

<p>1. Pbocess, § 26*—when issuance and service of are waived. A party who enters his general appearance in a case and makes a defense on the merits thereby waives the issuance and service of process and is in court for all purposes.</p> <p>2. Judgment, § 196*—when judgment against person not served with process is valid. A judgment awarded against the general property of all defendants and against the “separate property of the defendants served in this case, to wit * * *” naming them, held valid as against one of the main defendants, although the record showed that while he had' entered his appearance in the action he was never served with 'process, since the words “served in this case,” being wholly unnecessary to the validity of the judgment, could be treated as surplusage.</p> <p>3. Bills and notes, § 377*—when holder of negotiable instrument presumed to be holder in due course. Every holder of a negotiable instrument is presumed to be a holder in due course in" the absence of evidence to the contrary.</p> <p>4. Bills and notes, § 241*—when purchaser of negotiable instrument is deemed not to be holder in due course. In order that a purchaser of a negotiable instrument shall be deemed not to hold it “in due course,” it must appear that he had actual knowledge of the infirmity or defect complained of, or knowledge of such facts that his action in taking the instrument amounts to bad faith.</p> <p>5. Bills and notes, § 243*—when title of assignee is not affected by knowledge of suspicious circumstances or gross negligence. Neither knowledge of suspicious circumstances nor even gross negligence will affect the title of an assignee1 of a negotiable instrument, in the absence of bad faith.</p> <p>6. Bills and notes, § 247*—when bank is a bona fide holder in due course. Where it was agreed by signers of a promissory note that, on its being signed by seventeen persons altogether, each of whom should be financially responsible for at least $500, it should be delivered to the payee named therein, and, after it was signed by ten persons so responsible, the treasurer and manager of the payee procured the signatures of seven other persons not so responsible and it was accepted by a bank which credited the payee with its fpll face value, held under the evidence that the bank was a bona fide holder of the note in due course.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>1. Insane persons—what is the nature and purpose- of lunacy laws. Lunacy laws are enacted for the benefit of the unfortunate as well as for that of the public, and of necessity operate at the place and in the jurisdiction where the insane person is found, and are in their nature emergency laws, operating, if at all, when the emergency arises and should be construed liberally to the end that their purpose may be effected.</p> <p>2. Insane persons—what constitutes nonresidence of. “Non-residence,” as used in section 41 of the lunacy laws of this State (J. & A. If 7325), should be construed^to mean an insane person who is beyond the jurisdiction of the courts of this State and who has been taken before the courts of some other State and adjudged to be insane, and a guardian or conservator of his person and estate has been appointed by such court.</p> <p>3. Insane persons—when adjudication of insanity and appointment of conservator 0y foreign court should he recognised. Where an insane person, who was formerly a resident of this State, has been taken before the courts of some other State and adjudged to be insane and a guardian and conservator of his estate has been appointed by such courts, the courts of this State should recognize the acts of such foreign courts as valid, and the guardian or conservator appointed by them as the guardian or conservator of a nonresident lunatic.</p> <p>4. Insane persons—when foreign conservator is entitled to charge of estate of former resident of State. Where a conservator had been appointed in this State for an insane person, who, after being an inmate for a number of years in an institution in this State, was, on the advice of the superintendent of the institution and with the consent of the conservator and of the County Court which declared her sane, taken to another State by her sister, a resident of that State, who provided a home for her and who-was appointed by a competent court of that State as guardian of her person and estate after she had been declared of unsound mind, held that a petition filed in the County Court of this State which had jurisdiction of the insane person while she was a resident here by the foreign guardian, praying for an order directing the conservator to turn over to her the estate of her ward, was properly granted.</p>

<p>1. Evidence, § 260*—when books of third person are inadmissible to show falsity of statements of defendant as to earnings of corporation. In an action for fraud and deceit based on alleged fraudulent statements of the defendant as to the earnings of a corporation not a party to the action, held that the books of the corporation are not admissible in evidence to show that such statements were false.</p> <p>2. Appeal and error, § 1469*—when admission of improper evidence is harmless error. The admission in evidence of certain book entries held harmless error, if error at all, where the party complaining testified to the same facts as were shown in the entries.</p> <p>3. Fraud, § 60*—when good faith is no defense to action for. Good faith is no defense in an action for fraud and deceit where the fraud and deceit practiced consist of making false statements of fact as of the knowledge of the one speaking, for if one asserts a thing to be true as of his own knowledge when it is not true, or when he does not in fact know whether it is true or not, his statement that he knows it to be true of his own knowledge is false whether the fact established is true or not.</p> <p>4. Fraud, § 93*—when evidence as to belief, understanding or good faith is inadmissible. In an action for fraud and deceit based on false statements of fact made as of’ the knowledge of the defendant, it is incompetent for him to prove what he believed, meant, intended or understood, in connection with the falsehood stated, or to prove his good faith in the matter.</p> <p>5. Fraud, § 20*—what does not constitute an expression of opinion. In an action for fraud and deceit based on alleged false statements of defendant, held that the statements as to the paid-up capital stock of a corporation and as to its profit for a certain year were, as a matter of law, statements of fact and not expressions of opinion.</p> <p>6. Fraud, § 127*—when alleged false statements are for jury and when for court. If alleged false statements are of such a nature as to admit of being construed either as statements of fact or as an expression of opinion, the question whether they are statements of fact or expressions of opinion is for the jury, but where such statements are positive written statements of fact, the meaning of which cannot be misunderstood, and are known to be false, the question is one of law for the courts.</p> <p>7. ¡Fraud, § 115*—when evidence is sufficient to show falsity of statements as to amount of paid-up capital stock of corporation and as to earnings. In an action for fraud and deceit based on the defendant’s alleged false statements as to the amount of paid-up capital stock of a corporation and as to its earnings for a certain year, evidence held to show that such statements were false.</p>

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

<p>Abstraftt of the Decision.</p> <p>1. Appeal and error, § 1709*—when consideration of error is waived by counsel in brief. Where the defendant’s attorney in his brief on appeal stated that the entire case depended upon a certain issue, held that another issue which it had been' given notice in -the trial court that it would rely on as a defense was eliminated from the case.</p> <p>2. Insurance—when burden of proving change of beneficiary in mutual benefit certificate is on defendant. In an action on a benefit certificate where the defense was that the plaintiff, who was originally named as beneficiary, was not entitled to recover because the member had changed the beneficiary before his death, held that the burden of proving such contention was on the defendant.</p> <p>3. Insurance, § 827*—when attempt to change beneficiary in mutual benefit certificate is ineffectual. Where a member in good standing in a fraternal benefit society wishing to change the beneficiary oF his certificate, instead of filling out a blank provided by the society for that purpose partially filled out a blank form to be used only in case a suspended member wished to be reinstated, so that the certificate, as filled out, stated that the membership had been terminated by a suspension, that his certificate had been lost or destroyed, that he could not find' it, that he had not transferred or assigned it and that it was not, to his knowledge, held by any person, but the blank to be signed by the clerk of his own camp was not signed by the clerk, nor was a blank form affidavit to be filled out and signed in case the former blank was not signed by any one, and such document was not honored by the head camp when sent to it, held that the member did not pursue the course pointed out by the society to effect a change of beneficiary, and that such attempt was ineffectual to - accomplish such purpose.</p> <p>4. Insurance, § 894*—when evidence as to the usual course of business of insurance company in changing beneficiaries is inadmissible. In an action to recover on a benefit certificate issued by a fraternal benefit society, where the defense was that the member had substituted another than the plaintiff as beneficiary, held that it was not error for the court to refuse to allow the defendant to prove its usual course of business in changing beneficiaries which was contrary to its by-laws, rules and regulations, which, by its notice of special defense, it had formally asserted governed the manner of effecting such change.</p> <p>5. Equity, § 60*—inapplicability of equitable maxim to actions at law. The equitable rule that looks upon that as done which should have been done cannot be employed in actions at law.</p> <p>6. Insurance—when evidence as to why new certificate was not issued upon change of beneficiary in mutual benefit certificate is inadmissible. In ian action on a benefit certificate issued by a fraternal benefit society, where the defendant claimed that the plaintiff was not entitled to recover as another had been substituted as beneficiary; although a new certificate had not been issued, held that it was not error for the court to refuse to allow the defendant to show why the head clerk of the society had not issued the new certificate, as the material fact to be established was what was or was not done and not why the certificate was not issued.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 3*—when evidence is sufficient to show negligence of owner of automoMle in striking pedestrian. Where, in an action for personal injuries sustained by the plaintiff by being struck by the defendants’ automobile, the evidence showed that as the plaintiff was crossing the street she was struck from behind by the side of the car while she was walking forward, held that the fault must have been that of defendants, that the car must have been driven at such an angle across the way of the plaintiff as to overtake her with the side of the car after the front end had passed her.</p> <p>2. Automobiles and garages, § 3*—when evidence sufficient to show nonobservance of law of road by driver. Where, in an action for personal injuries sustained by the plaintiff by being struck by the defendants’ automobile, the evidence showed that as the plaintiff was crossing the street from the east to the west she was within four or five feet of the west curb when the car coming from the south struck her, evidence held to conclusively show that the driver of the car was not observing the law of the road and was traveling on the left instead of the right side of the street.</p> <p>3. Roads and bridges, § 228*—what are comparative rights of foot passenger and vehicles at crossings. A foot passenger always has an equal right with vehicles to the use of all of that part of the street used by the public traveling on foot in crossing the street.</p> <p>4. Instructions, § 120*—when properly refused as inapplicable to facts. It is not error to refuse to give an instruction as a rule of law applicable to facts if there is no evidence to show their existence in the case.</p> <p>5. Instructions, § 151*—when refusal of instruction covered by main charge is proper. It is not error to refuse to give an instruction on a proposition already covered by another instruction.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and errob, § 1396*—when findings of chancellor will not be disturbed. Findings of a chancellor on questions of fact, particularly when such findings are based on and are in accordance with the verdict of a jury, are given great weight in courts of review, and will never be set aside unless they are clearly and manifestly contrary to the weight of competent evidence.</p> <p>2. Damages, § 179*—when evidence as to receipts at opening of old opera house is inadmissible in action for breach of contract to furnish seats for new buildAng. Where, in.a suit by a chair manufacturer based on a contract for chairs for an opera house, the defendant claimed damages resulting from failure of the manufacturer to deliver within the time fixed by the contract and from the chairs not being as ordered, held that evidence as to what the receipts of an old opera house were at its opening twenty years before the bpening of the new one for the purpose of comparing with the receipts at the opening of the new opera house was inadmissible as a basis of estimating the defendant’s damages.</p> <p>3. Appeal and ebbob, § 1699*—when right to rely on denial of motion for directed verdict is waived. Where the complainant in a suit introduced a contract on which it based its right of recovery and then rested, and the defendant moved for a directed verdict on the ground that in order to make its case the complainant should have shown performance of the contract, and, on denial of the motion, proceeded to introduce evidence on the question of performance, held that it could not rely for reversal on .the denial of the motion, and the Appellate Court must determine the case on all the evidence in tjie record.</p> <p>4. Contracts, § 306*—when party must perform contract in accordance toith its terms. While a party to a contract may treat it as abandoned on the other party’s failure to perform its part and thus avoid. any claim for damages, yet, if after such breach it undertakes to perform, it must do so in accordance with the terms of the contract or respond in damages for failure to do so.</p>

<p>Appeal from the Circuit Court of Piatt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Mechanics’ liens, § 212*—when refusal to make retiring member of contracting firm party is harmless error.. Where a construction contract, which provided that it should not be assigned, transferred, or any part thereof sublet without the consent of the engineer in charge of the work, was let to a firm of contractors consisting of three partners, two of whom filed a petition to enforce a mechanic’s lien after the retirement of the third partner from the firm, helé that the refusal of the chancellor to order that such retiring partner be made a party to the proceeding was not reversible error since such change of partnership was not such an assignment or transfer as was contemplated by the contract, as it was shown that at the time the contract was entered into, the retiring partner had but a one-tenth interest in the firm and was not actually engaged in its business, and that, on his retirement, he relinquished all his interest therein and in the contract, and the petition showed on its face that the petitioners sued as successors of the original firm.</p> <p>2. Building and construction contracts, § 57*—when allowance of set-offs by engineer is proper. Where a contract for the construction of a railroad incline leading down to a river, and a wooden trestle and fender dike in the river, provided that the engineer in charge of the work should decide all questions which might arise relative to the execution of the contract and that his decision should be final, helé, in a proceeding to enforce a mechanic’s lien against the railroad, that the engineer had the power to determine whether there should be allowed the respondent as credit or set-off the expense te which it had been put in driving pilings in the fender dike, which had been partially destroyed by a flood after it was completed, and, as claimed by the contractor, accepted by the engineer, but before the entire work had been finished and accepted by the engineer, as well as for pilings swept away, lost, and for work done on the incline, and that his allowance of such set-off was proper, since as the contract further provided that when all the work should be fully completed, as testified to and accepted by the engineer, the latter 'should make a final estimate of the amount and value and deduct all sums previously paid or rightfully retained under the contract by the respondent, and the contract was an indivisible one and there could be no final acceptance of any part until the entire had been completed, and that the court properly disallowed a set-off for labor and materials furnished by the respondent for the purpose of protecting the trestle and incline from injury from floods, as the labor and materials were not used in constructing or replacing any part of the work to be done by the contractor.</p> <p>3. Building and construction contracts, § 49*—when damages for delay in performance of contract are waived. In a suit by a railroad contractor to enforce a mechanic’s lien for work done under a construction contract, held that it was proper to disallow the respondent as set-off a claim for damages for delaying the completion of the work, as the contract did not provide for such damages, but provided that, on the contractor’s failure to construct the work in accordance with the contract, the railroad could, upon giving notice to the contractor, take over the work or any part thereof completed and deduct the cost thereof from the amount that otherwise would be due the contractor, but the railroad gave no such notice, and did not complete the work itself, and otherwise by conduct waived any claim for such damages.</p>

<p>Abstract of the Decision.</p> <p>1. Time, § 2*—when Sunday is excluded in computing time for filing bill of exceptions. Where an order granting an appeal provided that a bill of exceptions should be filed within sixty days from the date of making the order, held that the sixtieth day falling on Sunday, the bill filed on the following Monday was filed in accordance with the order under clause 11, sec. 1, ch. 131, Rev. St. (J. & A. If 11,102), providing that the time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it also shall be excluded.</p> <p>2. Wills, § 282*—when grandchildren take per stirpes and not per capita. Where a testator devised separate parcels of real estate to his children, placing a valuation upon each parcel, and directed that the various devisees should pay or receive from the estate such sum as would make the share of each equal, and devised one of the parcels at a certain valuation to the “heirs” of a deceased daughter, naming her children, who were minors, held on a petition by the executor against the guardian of such minors to require him to pay to the estate the excess of such valuation over the average value of all the devises, that such minors took per stirpes and not per capita, and that the petition was properly granted.</p> <p>3. Courts, § 105*—when Probate Court may exercise equitable jurisdiction in settlement of an estate. The Probate Court and the Circuit Court on appeal in probate matters have the right to exercise equitable jurisdiction in the settlement of an estate when necessary to further the qnds of justice, and it is only in extraordinary cases that the courts of equity will supersede the Probate Court in making such settlement.</p> <p>4. Courts, § 104*—when Probate Court has jurisdiction to require repayment by heirs of excess over average value of devises. Where a testator devised certain parcels of real estate to his children, placing the valuation upon each parcel, and directed that the devisee should pay into or receive from the estate such sums as would make the share of each equal, and devised one of the parcels at a certain valuation to the “heirs” of a deceased daughter, naming her children, who were minors, held that the Probate Court in which the estate was being settled had jurisdiction of a petition by the executor against the guardian of such minors to require him to pay into the estate the excess over the valuation of the parcel devised to them, over the average value of all the devises.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Municipal corporations, § 860*—what is nature of prosecution under ordinance to recover fine for indecent exposure. A prosecution under a village ordinance to recover a fine for indecent exposure, held to be a civil action, and that consequently a judgment imposing a penalty entered on the return of a verdict simply that the jury found the defendant was guilty, without fixing the penalty, was erroneous, as only the jury can fix the penalty in such a case.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Robert H. Fdannigan, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Circuit Court of White county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1916.</p> <p>Petition for certiorari dismissed.</p>

<p>Abstract of the Decision.</p> <p>1. Justices of the peace, § 60*—when have jurisdiction of action for damages for trespass on land. Where suit for damages was brought before a justice of the peace for trespass upon land in possession of another as tenant of the plaintiff, who claimed ownership of the land through twenty years’ adverse possession thereof, the defendant claiming ownership of the same land through survey and deeds to his adjoining tract, held that it was not necessary to determine in such suit the legal title to the land in controversy, and the justice had jurisdiction under Rev. St. ch. 79, art. II, sec. 1, cl. 2 (J. & A. H 6877), giving justices of the peace jurisdiction in actions for damages to realty.</p> <p>2. Trespass, § 27*—when reversioner may maintain action for damages for. Where land was in the possession of one as tenant of another who claimed to be the owner thereof by twenty years’ adverse possession under claim of ownership, and a third person built a fence and took possession of the land, claiming ownership thereof through survey and deeds of adjoining land, held that under the Practice Act, sec. 36 (J. & A. If 8573), giving a right of action to one not in possession for injury to a remainder or reversion, the lessor had a right to sue for the damages which accrued to him as reversioner by reason of such injury.</p> <p>3. Trespass, § 62*—what damages are recoverable by reversioner. Where a person went upon land in possession of the tenant of another, built a fence thereon and took possession thereof, held that the party whose tenant was in possession of the land was entitled to recover at least nominal damages and a judgment for five dollars in his favor was not excessive.</p>

<p>1. Appeal and error, § 1265*—what is presumed in absence of propositions of law. Where, upon trial by the court without a jury, no propositions of law were presented to the court to be passed upon, it must be assumed on appeal that the law was rightly applied to the facts in the case, but that does not prevent the correctness of the ruling of the court upon the admission or rejection of evidence from being questioned on such appeal.</p> <p>2. Attachment, § 318*—when evidence as to exemption of personalty is wrongfully excluded upon trial of right of property. Where a vendee purchased certain saloon property, including stock and articles belonging to the saloon, without complying with the Bulk Sales Law of 1913 [Cal. III. St. Supp. 1916, ff 10,021(1) et seq.J, and payment of the purchase money was made and possession of the property taken by the vendee, and thereafter the property was attached in an action against the vendor upon an affidavit that he had within two years fraudulently conveyed or attempted to convey his property so as to hinder and delay his creditors, held that the court erred upon trial of the right of property, in excluding evidence offered to show that such property was exempt to the vendor as the head of a family.</p> <p>3. Attachment, § 68*—when lien of attaches to previously transferred property. No lien attaches under a writ of attachment sworn out against a vendor of property after he has transferred the same unless the transfer was fraudulent, regardless of the amount of property.</p> <p>4. Attachment, § 318*—when proof of value of transferred personalty is erroneously excluded on trial of right of property. Upon trial of the right of property alleged to have been fraudulently conveyed, taken under a writ of attachment against the vendor of such property after sale and delivery thereof to the vendee, where claim was made that such property was exempt to the vendor as the head of a family, held that proof of the value of the property transferred should have been admitted in evidence, and the court should not have been controlled as to the value of such property by the amount named in the bill of sale thereof and paid by the vendee.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Robebt H. Flannigan, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 233*—when mother is injured in her means of support to extent of wages earned try son and paid her. Where a son twenty-seven years old living with his parents and paying his mother a part of his wages substantially every week died from the effects of intoxication caused by liquors bought at a certain saloon, held that his mother had been injured in her means of support to the extent of the loss of his wages paid her, and was entitled to maintain an action under the Dramshop Act, sec. 9 (J. & A. T 4609), for damages because of such injury, notwithstanding she and her husband had some property and she may not have been dependent on such son for support.</p> <p>2. Damages, § 206*—when instruction is erroneous in not restricting damages recoverable to proof. An instruction as to damages which leaves it to the jury to give such an amount as in their judgment would compensate the plaintiff for the damage she had sustained, regardless of the proofs in the case, or one which recites various elements going to constitute damage to the plaintiff, without confining same to such as had been shown by the evidence, is erroneous in not restricting the damages to the amount as shown by the proof.</p> <p>3. Intoxicating liquors, § 249*—when instruction on damages in action for death due to intoxication is erroneous. In an action under the Dramshop Act, sec. 9 (J. & A. If 4609), for damages for death of plaintiff’s son caused by intoxication, an instruction which named as an element of damages to be considered by the jury the probable expectancy of life of the deceased and contained no reference to the probable expectancy of life of the plaintiff is erroneous, and such element should either have been omitted from the instruction or the jury should have been told they could consider the probable expectancy of life of both said deceased and said plaintiff.</p>

<p>Abstract of the Decision.</p> <p>1. Damages, § 200*—when instructions are not in conflict. Instructions that if the jury found for the plaintiff they should assess his damages at such sum as they believed from the evidence he had sustained, held not in conflict with defendants’ instructions confining the recovery to compensatory damages, where, under the pleadings, and instructions, punitive damages could not have been assessed, and such damages were not asked on the trial, nor recovered.</p> <p>2. Damages, § 209*—when instruction is not erroneous as not requiring preponderance of evidence. An instruction that the jury should assess such damages as they believed from the evidence the plaintiff had sustained is not erroneous because not stating that their assessment of damages should be from a preponderance of the evidence.</p> <p>3. AppeaXi Aim ebbob, § 365*—when objection to testimony may not be made. Testimony heard on the trial of a case without objection cannot be objected to on appeal, although the objection may not be without merit.</p> <p>4. Damages, § 191*—when amount of for injury to property is for jury. It is for the jury to determine from all the evidence, under the instructions, what was the proper amount to be paid, in a suit for damages, for injury to property, and where the evidence covered a wide range, and, had the jury followed some of the witnesses, the damages might have been fixed as high as eight hundred dollars, a finding of five hundred dollars was not excessive.</p>

<p>Abstract of the Decision.</p> <p>1. Schools akd school distbicts—when declaration in action for wrongful exclusion from nearest school is sufficient. Where, in an action by a minor against the directors of a school district and teacher to recover damages for excluding him from a certain school, the declaration charged that the defendants had denied plaintiff the right of an education in a certain school in said district and that such denial “was from the wilful and malicious and unlawful conduct to (plaintiff) by the said defendants so that (he) could be denied the use of the said school and instruction of the same,” held, that the declaration contained a sufficient charge of wilfulness and maliciousness on the part of the defendants, and the court properly overruled a demurrer thereto.</p> <p>2. Appeal akd error, § 783*—when dill of exceptions is insufficient. A bill of exceptions which fails to state that it contains all of the evidence in the case, and the certificate of the trial judge thereto containing no statement with reference to the matter, is insufficient to permit a review of the facts and the same is not cured by statements of counsel appearing in different portions of the bill of exceptions, or by a certificate by the official court reporter included in the record after the signature of the trial judge, as such certificate is no part of such bill.</p> <p>3. Appeal and error, § 1303*^when presumed that verdict of jury is correct on facts. There being no sufficient bill of exceptions in the record, it must be assumed that the verdict of the jury was correct upon the facts.</p> <p>4. Schools and school districts, § 175*—when directors are not justified in excluding pupil from nearest school. Where school directors drew an imaginary line between two schoolhouses in their district, and the parent of a pupil in one of sai'd schools thereafter removed his residence to within a short distance of that school and within the territory allotted to it, his former residence being within the territory allotted by the directors to the other school, and the proofs in an action against said directors and the teacher for refusing to continue instruction to such pupil in said former school did not disclose any crowded condition of that school or any particular reason why it would be for the best interests of the district that said pupil should be removed to the other and distant school, or that said pupil had been guilty of any misconduct, held, that the directors were not justified in excluding the pupil from the school nearest him.</p>

<p>1. Spendthrifts—when evidence as to voluntary signature to contract for division of property is inadmissible in action for attorneys' fees against conservator of husband. Where the conservator of an adjudged drunkard and spendthrift shortly after his appointment employed certain attorneys to file a bill to set aside a contract entered into between the ward and his wife shortly before he was adjudged a drunkard and spendthrift for a separation and a division between them of his property, on the ground that he was intoxicated at the time he executed said instrument, which bill was dismissed after the ward’s death and after a demurrer thereto filed by Ms wife as administratrix of his estate had been overruled, and thereafter said attorneys brought suit against the estate for solicitors’ fees in filing said bill, held that evidencé that the ward was not intoxicated when he signed said instrument, and that same was entered into by him without any fraud or circumvention on the part of his wife, was properly excluded, as it was not a question to be determined in said suit whether or not the contract or agreement could and would have been set aside, but whether said bill was filed in good faith to protect the property or rights of the ward by the conservator.</p> <p>2. Spendthrifts—what authority conservator has to bring suits to protect rights of ward. Under Rev. St. ch. 22, sec. 5" (J. & A. IT 885), a conservator of a drunkard and spendthrift has a right to bring a suit in chancery in good faith to protect the rights of his ward without first obtaining an order of record in the Probate Court, as his authority to bring such suit is given by the statute.</p> <p>3. Spendthrifts—what allowance should be granted to conservator bringing suit to protect interests of ward. If a conservator of a drunkard and spendthrift acts in good faith in bringing suit to protect the interests of his ward, he should be allowed an amount sufficient to pay any reasonable indebtedness incurred or amount expended in protecting such interests.</p> <p>4. Spendthrifts—when testimony of probate judge as to advising bringing of suit is admissible in suit against conservator for attorneys’ fees. In a suit by attorneys for fees for bringing suit at the instance of a conservator in the interests of his ward, a drunkard and spendthrift, testimony by the judge of the Probate Court where such conservator • was appointed that he advised the bringing of such suit is admissible for the purpose of showing good faith on the part of the conservator in employing said attorneys to bring said suit.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gh-lham, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 800*—what bill of exceptions must contain. In the absence of a bill of exceptions contained in the record showing a motion for a continuance of the case in the trial court, and affidavit in support thereof, the disallowance of which motion is assigned as error, such assignment cannot be considered, notwithstanding the attorney for the plaintiff in error filed with the transcript of the record in the Appellate Court his affidavit that such motion had been filed, as such affidavit is no part of the transcript.</p> <p>2. Justices of the peace, § 226*—when dismissal of appeal for want of prosecution is proper. Where the record before the Appellate Court contained no bill of exceptions and showed only the order of the Circuit Court dismissing an appeal from a justice of the peace for want of prosecution, held that such dismissal was proper.</p> <p>3. Appeal and ebbob—when case affirmed for failure to file abstract. Failure to file an abstract of the record in a case taken on appeal to the Appellate Court warrants affirmance of the case without considering it on its merits.</p>

<p>1. Assistance, wbit of, § 5*—when judgment creditor redeem~ ing from foreclosure sale and purchasing at resale entitled to. A judgment creditor who redeems from a foreclosure sale, procures a resale of the premises and becomes the purchaser thereof on such resale, succeeds to the rights in the premises involved of the purchaser on the original sale under his certificate of purchase, and is entitled to a writ of assistance from the court or from a judge in vacation to place him in possession of such premises.</p> <p>2. Mobtgages, § 602*—what' are rights of purchasers at foreclosure sale. The purchaser at a foreclosure sale of mortgaged premises has no right or interest therein .other than the right to receive the amount due him where the original mortgagor or some judgment creditor sees fit to redeem, or the right in the event no redemption is made to receive a deed for such premises.</p> <p>3. Mortgages, § 703*—when redemption by judgment creditor is not void. Where a judgment creditor redeemed from a foreclosure sale and at a resale of the premises became the purchaser thereof at a price which, through an inadvertent mistake of the sheriff, was less than the amount due, and also did not include taxes paid by the holder of the certificate of purchase on the original sale, which price was accepted by the sheriff, who thereupon issued and filed his deed on such redemption, and thereafter said judgment creditor, upon learning of said mistakes, tendered an amount sufficient to ■ cover the deficiency, held that the redemption by such creditor should not be held void on account of such deficiency.</p> <p>4. Mortgages, § 691*—when action of sheriff in issuing certificate of redemption. is valid. The statute makes the sheriff the proper officer through whom to redeem where a resale of premises sold on foreclosure is sought under an execution in his hands, and, unless some fraud is shown, his action in issuing a certificate of redemption should be held valid and binding.</p> <p>5. Mortgages, § 681*—how statute relative to redemption from foreclosure sales should be construed. The statutes covering redemptions from judgment or foreclosure sales (J. & A. j[f 6764-6770) should be liberally construed in order that the debtor’s property may reach as far as possible in satisfaction of his debts.</p> <p>6. Judicial sales, § 13*—when sheriff should sell at amount bid for property. Under the statutes (J. & A. Iflf 6764-6770), a redeeming creditor bidding at a resale of the premises is held to have made a bid thereon of an amount sufficient to cover the redemption money and interest, together with costs of making the resale, and the sheriff, if no larger amount is bid, should sell at said amount and at once make deed to the purchaser, and he would have no right to accept a less bid.</p> <p>7. Assistance, writ of—who may not object that bidder at foreclosure sale is not accepted highest bidder. A bidder at a sheriff’s sale who never paid or tendered to the sheriff the amount of his bid and who is not a party to a proceeding for a writ of assistance on behalf of another bidder at such sale, to whom the property was sold and deed issued by the sheriff, is not in a position to object in such proceeding, nor can the parties defendant to such proceeding object that said first-mentioned bidder was the accepted highest bidder.</p> <p>8. Assistance, writ of—what constitutes a prima facie case. In a proceeding for a writ of assistance, held, that the sheriff’s deed issued on a judicial sale, together with a stipulation of facts introduced in evidence, made a prima facie ease, the stipulation showing that the purchaser to whom said deed was issued had paid or tendered the proper redemption money and that no higher bid had been made and perfected by payment of the amount thereof.</p>

<p>1. Bills and notes—What is effect of Negotiable Instruments Act on questions of acceptance and payment. The law as codified in the Negotiable Instruments Act, sec. 61, in 1907 (J. & A. 1[ 7700), governing the questions of acceptance and payment of bills of exchange, is practically the same as was the law in this State prior to that codification.</p> <p>2. Bills and notes, § 7*—when instrument is foreign bill of exchange. Whether or not an instrument is a bill of exchange, so called, or a check depends on its character rather than what it may be designated on its face, and where an instrument was drawn by a domestic bank upon a bank in Prance, for payment by the latter bank of a certain sum to a certain payee named therein, held that such instrument was a foreign bill of exchange.</p> <p>3. Bills and notes, § 271*—necessity of presentment for pay-merit to drawee to charge drawer. Whether an instrument be a bill of exchange or a check, under the Negotiable Instruments Act, sec. 185 (J. & A. If 7825), such instrument must be presented for payment to the drawee thereon before the payee can recover against the drawer thereof, or he must show some valid reason why he did not present such instrument and that his failure to present same has caused no damage to the drawer.</p> <p>4. Bills and notes, § 271*—what is not available as defense for failure to present foreign bill for payment. The fact that the country to which the payee of a bill of exchange belpngs was in war and that the payee was drafted in the army is not a sufficient reason for failure of said payee to present such bill of exchange to the drawee thereon for payment, as provided by the Negotiable Instruments Act (J. & A. Tf 7640 et seq.), to enable such payee to recover against the drawer of such bill of exchange.</p> <p>5. Assumpsit, action of, § 72*—when special count necessary. Recovery by the payee of a bill of exchange against the drawer thereof upon the theory that it was not necessary for such payee to present such bill of exchange to the drawee thereon for payment can only be had under a special count alleging the reasons for failure to present such bill of exchange to such drawee, as under the common counts evidence on this theory would not be proper.</p> <p>6. Appeal and erbob, § 1455*—when improper sustaining of demurrer to special count is harmless error. Where a special count filed by the payee of a bill of exchange against the drawer thereof alleged that it was known to said drawer that said payee had failed to present said bill of exchange to the drawee thereon for payment, and that so knowing said drawer promised said payee to pay him the amount of said bill of exchange, held that no injury was caused such payee by the ruling of the court sustaining a demurrer to said count for the reason that the evidence wholly failed to support the allegations of said count.</p> <p>7. Bills and notes, § 271*—when’bank may not be compelled to take up bill of exchange issued by it. The law does not compel a bank to take up a bill of exchange issued by it except on the terms provided by the statute, and where said terms were not complied with and no sufficient reason was shown for failing to comply therewith, such bank should not be compelled to take up such bill of exchange at a depreciated value and thereby suffer a loss.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 350*—when evidence is sufficient to show that construction of embankment over stream is not cause of overflow. In an action for damages against a railroad company for overflowing of lands, claimed to have been due to a railroad embankment, constructed through said lands, where the evidence showed the embankment was built across a lake or natural stream eight or nine feet deep with a 36-inch pipe running through the embankment, by reason of which the water sometimes stood higher on one side and sometimes higher on the other side, with quite a current through the pipe, and the lands of the plaintiff on either side of the embankment were practically flat with little fall, so that at times of heavy rainfall all of the lands in that locality were flooded, held that the jury were warranted in finding that the embankment did not cause the water to back on the plaintiff’s land, but that the overflow was on account of natural conditions.</p> <p>2. 'Instructions, § 96*—when not erroneous on right of jury to discredit testimony of witness testifying falsely. An instruction in effect that if the jury believe from the evidence that any witness has wilfully testified falsely to any material fact they may discredit his testimony except in so far as corroborated by other credible testimony or by the facts and circumstances appearing on the trial, held not erroneous.</p> <p>3. Railroads, § 352*—when instruction in action for damages for overflowing of land caused by embankment is not erroneous. In an action for damages for overflowing of lands claimed to have been due to a railroad embankment, where an instruction was given to the effect that if the jury believe from the evidence that tho plaintiff’s lands had, prior to the construction of said embankment by the defendant, been subject to overflow and the crops of plaintiff to have been injured and destroyed in the same manner and to as great an extent before as after the construction of said embankment, they should find the defendant not guilty, held said instruction was faulty in form but there was no error in giving same, as if the jury found from the evidence the matters stated in said instruction it would have been their duty to have found the defendant not guilty.</p> <p>4. Appeal and error, § 1552*—when giving of ambiguous instruction is harmless error. Where an instruction is not clear in its statements and its meaning is somewhat ambiguous, but no particular error therein is' pointed out by counsel whereby such instruction could have injured the party against whom the verdict was rendered, and under the evidence the jury could not have been misled thereby to such party’s hurt, the giving of such an instruction is not ground for reversal.</p> <p>5. Instructions, § 63*—when not erroneous as assuming facts. The giving of an instruction on behalf of a defendant to the effdct that the defendant was a railroad corporation and as such had the right and legal authority to construct its railroad across the land's of the plaintiff was not erroneous as assuming facts, where the plaintiff himself had testified that he had sold the right of way to the defendant for railway purposes.</p> <p>6. Railroads, § 352*—when instruction as to nonliability of for overflow due to construction of embankment over stream is not seriously erroneous. An instruction given on behalf of a railroad company sued for damages for overflowing of the plaintiff’s lands, stating that “in the construction, operation and maintenance of its railway and embankments it is not a guarantor that its railway and embankments will be so constructed as to carry off or permit the carrying off of all the surface waters which might occur at times of such extraordinary and exceptional rainfall as,has never occurred before, or such extraordinary or exceptional rainfalls which, though they have occurred, may not reasonably be expected to recur,”" held not seriously erroneous.</p> <p>7. Appeal and error, § 1752*—when judgment affirmed because of defective abstract. Where an abstract is tendered on an appeal which, wholly fails to comply with the rules laid down by the Appellate Court covering the preparation of abstracts, as when it fails to abstract the pleadings or refer to the same, and the index refers to the record alone and not to the abstract, affirmance of the judgment without consideration of the case on its merits is warranted.</p> <p>8. Appeal and ebbob, § 1712*—what errors are waived. Errors assigned but not argued are taken as waived under the rules of court.</p>