Volume 204 — Illinois Appellate Court Reports

<p>Appeal from the City Court of Sterling; the Hon. Carl E. Sheldon, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>1. Banks and banking, § 93*—when agreement for substitution of certificate of deposit for secured notes not defense to action by receiver of insurance company. Where a certificate of deposit for a certain amount payable in current funds at a certain date was issued by a bank to an insurance company under an agreement that when due such certificate should be surrendered and certain notes secured by trust deed substituted therefor, and such certificate was deposited by the insurance company with the State Superintendent of Insurance as security under the statute, held that such agreement would not be enforceable as a defense to an action by the receiver for the insurance company against the bank on such certificate which the State Superintendent of Insurance had turned over to the receiver for the purposes of the receivership.</p> <p>2. Banks and banking, § 93*—when bank sued on certificate of deposit issued to insurance company is estopped from denying value thereof. Where a bank issuing to an insurance company a certain certificate of deposit for a certain amount, when called upon by the State Superintendent of Insurance with whom such certificate had been deposited as security under the statute for information as to the value of such certificate, replied in writing that it was worth its face value, held that the bank would be estopped from denying the value of the certificate as so stated by it, in an action to recover thereon against the bank.</p> <p>3. Insurance, § 45*—what are powers of receiver of company as to securities turned over to him by State Superintendent of Insurance. The receiver of an insurance company to whom a security held by the State Superintendent of Insurance on account of the company had. been turned over for the purposes of the receivership stands in the place of the State Superintendent and is clothed with the same powers and duties with regard to such security as such and as a trust fund.</p> <p>4. Insurance, § 45*—what is extent of powers of receiver of insolvent company. The rights and powers of the receiver of an insurance company are not limited to those possessed by the company with reference to its assets, but he represents also the creditors of the insolvent company and as such representative is invested with powers and may do acts that could not he done by a mere representative of the company.</p> <p>5. Insurance, § 45*—what is extent of powers of receiver of insolvent company. The receiver for an insolvent corporation is the representative of the corporation with regard to the sources and extent of its title to the property and assets taken over, and cannot assert rights with reference thereto which could not have been asserted and maintained by the corporation.</p> <p>6. Banks and banking, § 93*—what constitutes estoppel of hank to deny difference in character as security of certificate of deposit of insurance company. Where a bank issued to an insurance company a certain certificate of deposit which the company deposited with the State Superintendent of Insurance as part of the security required by the statute of insurance companies, held that the bank would be estopped to deny that as a security such certificate was something different so far as its liability, value, character or efficiency as a security was concerned from what it purported on its face to be, and it would not be necessary, in order to establish such estoppel, to show any fraudulent intent in the bank in issuing such certificate.</p>

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

<p>Appeal from the Circuit Court of Du Page county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Error to the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Error to the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Partnership—when evidence sufficient to support judgment against partner for goods furnished partnership. Evidence held sufficient to show that one of two defendants charged as partners knew that certain goods were furnished by the plaintiff on the strength of such supposed partnership and upon his financial responsibility, and to support a finding and judgment against such defendant for the price of the goods, in an action to recover such price.</p> <p>2. Partnership, § 34*—when person holding himself out as partner becomes liable as such. A person who may hold himself out as a partner does not for that reason alone become liable as a partner except as to those who may be misled by such holding out.</p> <p>3. Instructions, § 151*—when properly refused. It is not error to refuse to give instructions already given in effect.</p> <p>4. Partnership, § 246*—what evidence is competent to show liability as partner. A person’s statement that he had an interest in a certain business and that of his supposed partner in his presence as to their partnership, and the latter’s acts in advertising and conducting. the business in the partnership name, held competent evidence to show such person’s liability as a partner, in an action to recover against such person, as a partner, for goods sold and delivered.</p>

<p>1. Automobiles and garages, § 3*—when evidence insufficient to show negligence of driver of automobile colliding with horse and wagon. Evidence held to warrant the finding that the defendant was not guilty of negligence in not stopping or not turning his automobile to the right of the road because of a deep ditch on that side preventing him from so doing, in an action to recover damages for injuries sustained from a collision between such automobile and plaintiff’s horses and wagon.</p> <p>2. Automobiles and garages, § 2*—when driver of automobile is required to turn to right. Section 16 of the Motor Vehicle Law (J. & A. If 10016), requiring an automobile to seasonably turn to the right of the center of the track of a highway in passing another vehicle, announces a general law of the road practically uniform in the United States, and the rule applies regardless of the character of the vehicle, but not regardless of the character of the road, under sections 140, 145 of chapter 121 [Cal. Ill. St. Supp. 1916, ¶ 10000(140), (145)], and the driver of an automobile is required to turn to the right only when it is reasonably practicable to do so.</p> <p>3. Automobiles and garages, § 3*—when instruction on contributory negligence of driver of team is not erroneous. Am instruction that if the jury believed that the plaintiff drove his horses into or in front of the defendant’s automobile and was negligent in so doing whereby a collision occurred and plaintiff was injured they should find for the defendant, held not erroneous, in an action to recover damages for such injuries.</p> <p>4. Evidence, § 400*—when expert testimony is inadmissible. Expert testimony on matters of common knowledge is inadmissible.</p> <p>5. Appeal and ebror, § 1475*—when improper admission of expert testimony is harmless error. The improper admission of expert testimony on matters of common knowledge, where it is not in conflict with common knowledge, as testimony on the effect of getting the front wheel of an automobile into a ditch, the slopes of which were covered with blue grass and which were deep, is harmless error.</p>

<p>1. Appeal and error, § 205*—when constitutional question may he raised on appeal. While, where a party makes no objection in the trial court in a civil action that he is deprived of his rights by an unconstitutional law, the question cannot be raised on appeal, yet, where a petition for a mandamus to compel the mayor and city council of a city to approve a certain plat of an addition to the city was pending on appeal to the Appellate Court at the time, June 29, 1915, section 62 of the Revenue Act (Cal. Ill. St. Supp. 1916, ¶ 9280) was amended, which that court held was not then in question as to its effect before the court, held, that such petitioner, whose petition was thereafter granted on demurrer thereto, could raise the question, on appeal from the granting of-such petition, of the constitutionality of such amendment.</p> <p>2. Mandamus, § 15*—when should not issue. Mandamus should not issue upon a state of facts existing when the petition was filed if such state of facts had ceased to exist when final judgment was rendered.</p> <p>3. Appeal and error, § 200*—when constitutional question not involved. The Act of June 29, 1915, amendatory of section 62 of the Revenue Act (Cal. Ill. St. Supp. 1916, ¶ 9280), as to survey and platting of lots and approval by a city of a new subdivision, had no application to a petition then pending on appeal in the Appellate Court for a writ of mandamus to compel the mayor and city council of a city to approve a certain plat, and no question as to the constitutionality of that act would be presented in such case.</p> <p>4. Appeal and error, § 1725*—power of Appellate Court to review own decisions. The Appellate Court has no power to review its own decisions.</p>

<p>Appeal from the Circuit Court of Kendall county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>1. Contempt, § 30*—when courts have power to punish as contempt publication of news articles concerning case in court. Courts have power to punish as a contempt the publication of news articles concerning a ease pending in the court which reflects on-the court’s action therein or impeaches its integrity or seeks to intimidate it by threats of popular clamor.</p> <p>2. Contempt, § 30*—when court may punish as contempt making of publication concerning case in court. In order to authorize a court to punish a publication of news articles concerning a case in court as a contempt, the publication must have been while the cause was pending so that it was calculated to embarrass the court and bring its further action therein into disrepute.</p> <p>3. Lis pendens, § 2*—when action is pending. An action is pending from its beginning to final judgment pronounced and entered.</p> <p>4. Contempt, § 69*—when evidence sufficient to show that cause was pending at date of publication. Evidence held to show that the cause as to which a certain newspaper publication was made was pending at the date of such publication, where it appeared a decision was rendered by the court in said cause shortly prior to such publication and the cause continued to a date subsequent thereto for further disposition, in a proceeding to punish for contempt in making such publication.</p> <p>5. Contempt, § 2*—what is power of County Court to punish for. A County Court, though one of limited jurisdiction, has power to punish as a contempt a newspaper publication as to a case then pending before it.</p> <p>6. Contempt, § 40*—what is effect of newspaper proprietor’s lacle of knowledge of libel on liability for contempt. A newspaper proprietor’s lack of knowledge of a libel published therein should influence' the degree of his punishment for contempt of court but not exonerate him from liability.</p> <p>7. Contempt, § 69*—when evidence is sufficient to show that publication of newspaper article as to cause in court is injurious. The evidence held to show that a certain newspaper publication as to - a cause then pending in court was calculated to impede and embarrass and obstruct the court in the due administration of justice in the cause and be properly punishable as a- contempt.</p>

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

<p>1. Tender, § 20*—when qualified plea of general issue and plea of tender are in proper form. A qualified plea of general issue and plea of tender, held in proper form, in an action to recover on a lumber bill.</p> <p>2. Tender, § 20*—when replication accepting tender is in proper form,. Replication accepting a tender made, held in proper form where the plaintiff admitted a tender could be proved and was prepared to show more due than was tendered.</p> <p>3. Tender, § 15*—when amount of tender paid in court should be remitted. Where a tender was made in court of less than the amount sued for, and was accepted, and judgment was entered after trial for the full amount sued for and all the costs, held that such judgment was erroneous and that the amount of the tender should be remitted.</p> <p>4. Sales, § 124*—when evidence sufficient to show delivery of lumber in reasonable time. The evidence held to warrant finding that no time was fixed for the delivery of certain lumber and that it was delivered within a reasonable time, in an action to recover Its purchase price in which recoupment was claimed on the ground that it was to be delivered within a certain time and was not delivered within that time.</p> <p>5. Sales, § 320*—when buyer may recoup damages for failure to deliver according to contract. To enable a buyer sued by the seller to recoup damages for a specially advantageous use which the buyer was to make of an articlé not delivered according to contract, he must show that the seller knew of such use and its advantages to the buyer.</p> <p>6. Sales, § 320*—when buyer sued for purchase price of lumber cannot recoup for loss of corn due to failure to malee delivery. A buyer cannot, when sued for the purchase price of lumber to be used by him to build a corncrib, recoup by charging the plaintiff with depreciation in value of the corn which the defendant expected to store in such crib but by reason of the lumber not being delivered which he left unhusked or husked on the' ground uncovered and exposed to the elements all winter, as he should have promptly taken other steps to cover and protect the corn.</p>

<p>Error to the City Court of Elgin; the Hon. Fbank E. Shopen, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Appeal from the County Court of Rock Island county; the Hon. Nels A. Larson, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>1. Insurance, § 334*—when company is bound by agent’s Knowledge in renewing fire policy. Where the agent for the defendant insurance company had in his possession plaintiff’s policy, which provided that other' insurance on the insured property was permitted, and shortly before the expiration of the policy the plaintiff notified the agent, at the latter’s instance, to renew the policy, and same was renewed, but the agent’s clerk in writing it up made it read that other insurance was not permitted, and the agent knew of other insurance plaintiff had on the property and had all of the policies in his possession for the plaintiff, held that the company was bound on such renewal policy notwithstanding the provision therein that other insurance was not permitted, in an action thereon for a loss.</p> <p>2. Insurance, § 352*—when right to forfeit fire policy because of additional insurance is waived. Where the agent of an insurance company was informed by a party about to take out a policy with his company that he was about to take a second policy also with another company, held that such agent should have made known to such party any objection to his taking such other policy, and his silence in the matter would constitute a waiver by his company of any right to declare a forfeiture because of such other policy.</p> <p>3. Insurance, § 447*—what does not constitute fraud in proofs of loss. Merely an optimistic account of the value of insured goods destroyed would not be a fraud in proofs of loss.</p> <p>4. Insurance, § 456*—when proofs of loss are waived. Where an insurance company, before proofs of loss were furnished, refuses to pay such loss, such proofs are waived.</p> <p>5. Insurance, § 669*—when evidence is sufficient to sustain verdict in action on fire policy. Evidence -held to warrant the finding of the jury that plaintiff’s goods lost by fire were worth in excess of $6,000, and that a verdict for the amount of plaintiff’s policy accordingly was not excessive, in an action on such policy to recover for such loss.</p> <p>6. Witnesses, § 194*—when list of goods made by owner after fire may be used to refresh memory of owner. A list of goods lost by a fire made by the owner after the fire, held admissible in evidence to refresh his recollection in testifying, although he could not later at the trial remember all the details, in an action on an insurance policy to recover for such loss.</p> <p>7. Insurance, § 620*—when evidence as to subsequent selling price of exchanged property is admissible in action on fire policy.</p> <p>Evidence as to the price at which certain real estate, given in trade for a certain stock of goods, subsequently sold for, held inadmissible in an action to recover on an insurance policy for the loss by fire of such goods.</p> <p>8. Witnesses, § 224*—when question on cross-examination of not erroneous. Where objection to a question on cross-examination whether the witness had heard another witness say certain things at the trial was sustained, held not error.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsey, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Limitation or actions, § 64*—what constitutes new cause of action. Where an original bill for mechanic’s lien, filed within time, set up as basis for such lien certain contracts between the complainant and certain of several defendants for the construction of and furnishing material for the railroad of a codefendant, and three years later an amendment of such bill was filed setting up contracts, as basis for such lien, between complainant and said codefendant, for whom the railroad was to be built, and alleging that said other defendants were owned and controlled by and subsidiary to said codefendant, held that a new cause of action was set up in such amendment and same was barred by the statute of limitations.</p> <p>2. Limitation of actions, § 104*—how defense of raised. Where the fact that a cause of action is barred by the statute of limitations appears on the face of a bill, it can be raised by demurrer.</p> <p>3. Corporations, § 516*—what does not constitute proof of identity of two corporations. The fact that two corporations may have the same president or the same president and secretary, or that one contractor, a corporation, agrees to pay for work done by delivering stock or bonds of another corporation for which the work was to be done, or that one corporation owned the majority of the stock of another corporation, if it could lawfully hold such stock, is no proof that the two corporations were one and the same company, or that one was a dummy for the other and what one does the other really does.</p> <p>4. Mechanics’ liens, § 183*—when Mil does not state cause of action against railroad company as contractor or subcontractor. Where a bill for a mechanic’s lien set up several contracts by the complainant with different construction companies for the construction of, or furnishing material for, different portions of a certain railroad of another company, all of which companies appeared to have the same officers and were made parties to such bill, and one of the companies with which one of such contracts was made was alleged to own a majority of the capital stock of said railroad company, held that such bill stated no cause of action against such railroad company as a contractor or as a subcontractor, no notice as a subcontractor being alleged.</p>

<p>1. Conflict of laws, § 38*—where actions ex delicto may be brought. Actions ex delicto for injuries to the person are transitory and may he brought within a jurisdiction other than that within which Such injuries occurred.</p> <p>2. Pleading, § 100*—what plea of general issue does not admit. A plea of the general issue to a declaration charging that the defendant’s railroad trestle on which plaintiff was walking when he was injured was a public highway does not admit such charge.</p> <p>3. Roads and bbidges, § 1*—what does not, constitute a public highway. A railroad trestle over a stream is not made a public highway by reason of the stream being, as a navigable stream, a public highway.</p> <p>4. Dedication, § 25*—what does not constitute dedication of railroad trestle as public highway. Where the predecessor of the defendant railroad filed a certain plat of an island showing two straight lines close together drawn across the river channel from the island to the shore apparently where the railroad’s trestle was built, held that such plat was not a dedication of the trestle as a public highway, in an action to recover damages for injuries sustained by the plaintiff while walking on such trestle.</p> <p>5. Interurban railboads, § 4*—when instruction as to plaintiff being a trespasser is erroneous. An instruction submitting to the jury whether a certain interurban railroad trestle where the plaintiff was injured was a public highway and that, if it was, such party was not a trespasser thereon, held erroneous, in an action to recover damages for such injury.</p> <p>6. Roads and bridges, § 18*—what user of railroad trestle does not constitute it a public highway. The fact that an interurban railroad acquiesced in the occasional use by the public of its trestle over a stream for foot travel would not make such trestle a public highway of require the railroad to place officers at the ends of the trestle to prevent such use, nor would the fact such trestle was used in going to an amusement park owned by the railroad make such trestle a public highway.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 864*—what abstract must contain. Any error alleged on appeal must be shown in the abstract, and the reviewing court will not search the record to find some error not shown therein.</p> <p>2. Appeal and error, § 799*—how petitions and motions for change of venue, affidavits and rulings of court may be made part of record. Petitions and motions for a change of venue and affidavits in support thereof and the ruling of the court thereon can only be made a part of the record by being incorporated in the bill of exceptions or certificate of evidence, both in chancery and at law, and a mere showing in the abstract that a petition for a change of venue was filed and denied would be insufficient to secure a review of such denial.</p> <p>3. Injunction, § 48*—when temporary injunction against ousting landlord from premises in favor of lessee is correct. Where a bill was filed alleging that complainant had been induced by defendants to sign a paper represented by them to be a power of attorney from her to collect rents of her property for a short time in order to secure payment to them for obtaining the release of her son from an asylum, that she relied on such representations in signing such paper, that she afterwards borrowed the money elsewhere and paid such expenses, that she subsequently learned said paper was in fact a twenty-year lease of said premises to one of defendants, that the other of the defendants had as attorney for this one collected the rents and retained part thereof after paying her a part, that the agreed rent in such lease had not been paid, and that the lessee was endeavoring to oust her from possession of the premises, held that a temporary injunction was authorized, notwithstanding one was not specifically prayed for in terms.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 26*—when denial of motion for change of venue is not correctly preserved for review. Denial of a motion for a change of venue, in a case under the Municipal Court Act, held not properly preserved for review under section 23 of that Act (J. & A. If 3335), by a purported bill of exceptions in the absence of a correct statement as required by such section.</p> <p>2. Attorney and client, § 11*—when affidavit may not be sworn to before attorney. An affidavit in support of a motion for a change of venue cannot be sworn to before the party’s attorney in the case.</p> <p>3. Municipal corporations, § 867*—when presumed that verdict for violation of ordinance is correct. Judicial notice will not be taken in the Appellate Court of a municipal ordinance not before it, and the correctness of a verdict for a violation of such ordinance will be presumed.</p> <p>4. Disorderly house, § 2*—when evidence is sufficient to sustain conviction for keeping. The evidence held to sustain the charge, in a prosecution for keeping a disorderly house in violation of a municipal ordinance.</p> <p>5. Appeal and error, § 1514*—when curtailing of time for argument of motion is harmless error. It is not reversible error for a court to curtail time for argument of a motion for a new trial in a case.</p>

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>Appeal and error, § 866*—what does not constitute an abstract. A mere index of the proceedings in the trial court is not such abstract of the record as complies with Rule 18 of the Appellate Court rules, requiring a complete abstract of the record in a cause brought to the Appellate Court.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 527*—when res judicata as to rights of all parties in attachment suit. A judgment in an attachment suit which adjudicates the rights of all parties properly before the court either by intervening petition or by valid service of process is binding upon all such parties and is res judicata of their rights in the subject-matter of the suit.</p> <p>2. Estoppel, § 16*—when intervener in attachment suit may not claim that judgment was invalid. An intervener in an attachment suit who recovered a judgment therein in his favor and accepted the sum found due cannot claim in another action that such judgment was invalid.</p> <p>3. Attachment, § 250*—when judgment is not erroneous in form.y Where the entry of a judgment in an attachment suit referring to the adjudication of the issue arising under an intervening petition was abbreviated but in such form that it was not at all difficult to determine its definite meaning, held that it was sufficient.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Pleading, § 123*—what is effect of failure to file replication to good plea. One plea stating a good defense to the whole declaration is, without a replication, tantamount to a confession of the verity of the matters pleaded in defense, entitling the defendant to a judgment on such plea.</p> <p>2. Appeal and error, § 420*—when objections to replication are made too late. The objection that a replication filed was not responsive to the plea and joined no issue thereon comes too late when first made on appeal.</p> <p>3. Pleading, § 470a*—when error in replication is cured by verdict. Error in a replication in that it is not responsive to the plea and joins no issue thereon is cured by verdict upon going to trial without objection or motion.</p> <p>4. Workmen’s Compensation Act, § 6*—what constitutes a dangerous appliance. The fact that a serious injury was inflicted by a mechanical device appurtenant to a planer called a “dog,” and that soon after an accident, upon diligent search and inquiry, an efficient method of protection was discovered and applied, making such planers and dogs harmless, held to stamp such appliance as dangerous under section 3 of the Workmen’s Compensation Act of 1911 (J. & A. If 5451), in an action to recover compensation thereunder.</p> <p>5. Master and servant, § 158*—what is duty of owner to protect dangerous machinery. Notwithstanding the powers and duties under the Safety Appliance Act of a' factory inspector, there is an absolute duty upon the owner of dangerous machinery to protect it, and his failure to do so would not be excused by the factory inspector’s failure to give notice to the owner.</p> <p>6. Workmen’s Compensation Act, § 6*—what constitutes intentional omission of duty by employer. Where elective officers of a corporation owning a factory and having knowledge of dangerous machinery in such factory and of their responsibility as to protecting such machinery failed to remedy a dangerous condition existing as to same, held that such omission of duty on their part was intentional within section 3 of the Workmen’s Compensation Act of 1911 (J. & A. ¶ 5451).</p> <p>7. Instructions, § 38*—when in language of statute not reversibly erroneous. Setting forth in an instruction the language of a statute involved, although discountenanced, held not to be reversible error.</p> <p>8. Instructions, § 135*—when request for more specific instruction is necessary. Complaint that the term “proximate cause” used in an instruction was not sufficiently definite, held to be without force as an instruction should have been tendered upon such definition by the party complaining.</p>

<p>Abstract of the Decision.</p> <p>1. Divorce, § 22*—when court has jurisdiction to adjudicate right of wife to alimony. No jurisdiction to award alimony in a decree for divorce exists on service of summons against the husband by publication, but where the decree for divorce in such suit reserved the question of alimony for the future consideration of the court, and the court thereafter by service of process or entry of appearance secured jurisdiction of the husband in personam, held that the court might proceed to adjudicate the right of the wife to alimony and in the usual way to enforce its payment at a term subsequent to that at which the decree of divorce was entered.</p> <p>2. Divorce, § 64*—when defendant estopped from questioning jurisdictional validity of alimony decree. Where a defendant in a suit for divorce in which a decree for divorce was entered on service by publication was at a subsequent term served with process, on a petition for alimony, and after a decree awarding alimony entered his appearance and secured a reduction thereof, held that he would be estopped from disputing the jurisdictional validity of such alimony decree.</p>

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

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

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Equity, § 498*—when decree based upon master's report is erroneous. Where a master in chancery to whom a suit was referred by the court to take proofs and report his conclusions upon the law and the facts, reported that a certain trust deed in question was not an equitable lien upon the premises involved and recommended that it be set aside and declared null and void, and his report was approved, held that a decree failing to set aside such deed was erroneous.</p> <p>2. Equity, § 427*—when question of correctness of master's report and merits of case may not he considered. Where the master’s report in a suit was approved, on motion of the party excepting thereto, held that the correctness of such report and the merits of the case would not be proper subjects for argument on writ of error for failure of the decree rendered, on such report to conform thereto.</p>

<p>Error to the County Court of Cook county; the Hon. John H. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

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

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

<p>1. Assignments—when judgment is properly rendered in favor of assignee of cause of action. In an action brought in the Municipal Court by three plaintiffs, where,, after verdict in their favor and pending a motion for a new trial, they assigned their interest in the case, and the assignments were filed with the clerk of the court, and, on motion by two of such plaintiffs, the assignee was substituted, without objection by the defendant, for the third plaintiff, and thereafter the motion for a new trial was denied and judgment was entered on the verdict, held that the judgment was not erroneous, notwithstanding the assignments filed with the clerk may not have been brought to the attention, of the 'trial judge, as contended, or that the assignee was not substituted also for the other two plaintiffs.</p> <p>2. Time, § 1*—how computed. The proper mode of computing time where an act is to be performed within a particular period from or after a specified day is to exclude the day named and include the day on which the act is to be done.</p> <p>3. Time, § 2*-—when Sunday excluded in computing. Where the last day specified in a contract within which an act is to be performed falls on Sunday, that day also is excluded, under Rev. St. ch. 131, sec. 1, par. 11 (J. & A. If 11102), and Rev. St. ch. 100, sec. 6 (J. & A. H 7860), in computing the time when such act is to be performed, and performance’ of such act on the following day would be in apt time.</p> <p>4. Insurance, § 441*—what constitutes waiver' of provision in policy for filing of proofs within specified time after loss. Where, upon a loss accruing under an insurance policy, negotiations for adjustment were begun by the insurer prior to the filing of proofs of loss and were continued after same were filed, without objection that such proofs had not been filed in time, held that there was a waiver by the insurer of the provision of the policy that such proofs should be filed within a specified time after loss.</p>

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

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

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

<p>1. Libel and slandeb, § 46*—what 'may be published concerning judicial officers. -Fair and reasonable comment and criticism upon the acts of judicial officers are publishable.</p> <p>2. Libel and slandeb, § 46*—what may not be published concerning judicial officer. A false statement of fact concerning a judicial officer may be published only at one’s peril.</p> <p>3. Libel and slandeb, § 46*—when words are actionable per se. If words charge incapacity and unfitness, the want of integrity or corruption in office, they are when published in reference to one holding an office of profit actionable per se, and it is unnecessary that the words go so far as to import a crime.</p> <p>4. Libel and slandeb, § 90*—when declaration in action for libel is sufficient. The several counts in a declaration based upon an alleged libel, held to set up a good cause of action, in an action based upon a certain publication as to the words and acts of the plaintiff as a judicial officer.</p> <p>5. Libel and slandeb, § 117*—when general issue is sufficient plea. In an action by a judicial officer for an alleged libel, if the words charged constitute fair criticism and are privileged only as fair criticism, such words are not libelous and a plea of general issue is sufficient.</p> <p>6. Pleading, § 374*—when special plea should be stricken from files. A special plea which sets up matter admissible under a plea of the general issue should, on motion, be stricken from the files.</p> <p>7. Pleading, § 191*—when demurrers to special plea should be overruled. Where general and special demurrers to a special plea which set up matter admissible under a plea of the general issue did not object to such special plea for that reason or ask that it be stricken from the files or for an election, held that such demurrers should be overruled.</p> <p>8. Pleading, § 229*—what is effect of allowing improper special plea to stand. The fact that a special plea which improperly sets up matter which is admissible under a plea of the general issue filed is allowed to stand of record on overruling of demurrers will not preclude or affect the defense of such matter.</p> <p>9. Libel and slander, § 104*—what are requisites of plea of justification. A plea of justification in an action of libel must be as broad as the declaration.</p> <p>10. Libel and slander, § 103*—how plea of justification is construed. A plea of justification in an action of libel is construed strictly against the party pleading it.</p> <p>11. Libel and slander, § 104*—when pleas of justification are insufficient. The several pleas of justification held insufficient under the respective counts of the declaration, in an action for an alleged libel as to a judicial officer.</p> <p>12. Libel and slander, § 61*—what is insufficient justification for publication of alleged libel. It is immaterial in a plea of justification as to an alleged libel that the language stated in such libel as spoken by a third person was actually uttered, as a party is liable for what he publishes no matter whether the source is truth or falsehood.</p> <p>13. Libel and slander, § 62*—when justification for libel on judicial officer is insufficient. In an action for an alleged libel as to a judicial officer, a statement in a plea of justification that out of eighteen cases tried before such officer only a certain number of convictions were obtained and that certain results were obtained where new trials were allowed, held insufficient as determining the character and fitness of such officer.</p>

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

<p>Abstract of the Decision.</p> <p>1. Assault and battery, § 34*—when verdict in criminal prosecution is sufficient. A verdict finding the defendants guilty of assault with a deadly weapon in manner and form as charged in the indictment and that said assault, was committed with an intent to inflict upon the person “of another” a bodily injury, etc., held to specify sufficiently the material facts constituting the crime of assault with a deadly weapon and that the words “of another” did not negative the allegation that the intention was to injure the person charged in the indictment to have been assaulted, but were used in direct reference to such person.</p> <p>2. Assault and battery, § 34*—when verdict in criminal case sufficiently designates defendant. A verdict finding the defendants guilty of assault with a deadly weapon in manner and form as charged in the indictment, held to clearly designate, by the words “as charged in the indictment,” that the person upon whom the assault was made was the one charged in the indictment.</p> <p>3. Assault and battery, § 34*—when verdict finding defendant guilty of assault with a deadly weapon is proper. A verdict finding the defendants guilty of assault with a deadly weapon, held good as to a count charging assault with a revolver charged with gunpowder and leaden bullets, the same being a deadly and dangerous weapon, or as to a count charging the same except that the deadly weapon was “a certain hard substance, a further description of which is unknown.”</p> <p>4. Assault and batteby, § 30*—what does not constitute variance between indictment and proof. Evidence that the accused had pointed a revolver at a person whom he was charged with having assaulted and said he would blow such person’s brains out, held sufficient to show that the revolver was loaded, under a count of an indictment charging assault with a loaded revolver.</p> <p>5. Assault and batteby, § 34*—when verdict of guilty for assault with deadly weapon is proper. A verdict finding the defendants guilty of assault with a deadly weapon, held good under a count of an indictment charging assault with a certain hard substance, where a revolver with which the assault was shown to have been committed was introduced in evidence and the jury had opportunity to determine whether or not it was a hard substance as set out in the indictment.</p> <p>6. Assault and batteby, § 33*—when instruction in criminal case is in conformity with evidence. An instruction as to a charge of assault with a deadly weapon and as to a charge of assault with the intention to commit murder and simple assault, held to he justified under the evidence showing the assault of which the defendant was found guilty was committed with a revolver.</p> <p>7. Assault and batteby, § 31*—when evidence sufficient to sustain verdict of guilty of assault with deadly weapon. Evidence held sufficient to sustain a verdict of guilty of assault with a deadly weapon with intent to inflict bodily injury upon the person assaulted, under an indictment charging such assault.</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, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Building and construction contracts, § 103*—when evidence is sufficient to show that plat indicating repairs is basis of contract. Evidence held sufficient to show that a certain plat indicating what repairs were to be made upon defendant’s property by the plaintiff’s assignor was the basis of the contract sued on, in an action to recover the agreed price for the making of certain repairs on said property.</p> <p>2. Building and construction contracts, § 83*—what is condition precedent to recovery on contract. Where an action was brought upon a building contract for an agreed sum for work to be done and not upon a quantum meruit, held, that there could be no recovery unless substantial compliance with the contract was shown.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 138*—when direction of verdict for defendant in action for death is proper. In an action to recover damages for death alleged to have been due to defendant’s negligence in the operation of a street car alleged to have been owned by defendant, where such ownership was denied, and the plaintiff introduced no evidence as to the deceased’s care or the negligence of the" defendant or the defendant’s ownership of the car, held that it was proper for the court peremptorily to instruct the jury to find for the defendant.</p> <p>2. Death, § 8*-^when death certificate is inadmissible in evidence. A death certificate is not admissible in evidence for the purpose of showing some collateral fact as the cause of death, in an action to recover damages for dehth.</p> <p>3. Death, § 8*—when physician’s death certificate is inadmissible in evidence. A death certificate issued by a physician in another State who attended plaintiff’s intestate at the time of the latter’s death, stating that death was due to the intestate being run over by a street car three months prior to such physician’s attendance on the intestate, held inadmissible, in an action to recover damages for such death, as being mere hearsay.</p>

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

<p>Abstract of the Decision.</p> <p>1. Instructions, § 82*—when instruction dividing witnesses into classes is erroneous. In an action to recover damages for personal injuries sustained by plaintiff being struck by an automobile truck, an instruction which divided the witnesses into two classes, those who were employees of the parties to the action and those who were not, held erroneous in a close case upon the question of ownership of the machine.</p> <p>2. Instructions, § 7*—necessity of accuracy. In an exceedingly close case upon the evidence, the necessity for accurate instructions is imperative.</p> <p>3. Instructions, § 95*—when instruction as to credibility of witnesses and weight of testimony is erroneous. In an action to recover damages for personal injuries sustained in an automobile accident, where there was no evidence that any of the witnesses except the plaintiff had any connection with the accident, an instruction as to the credibility of witnesses and the weight of their testimony which suggested for consideration by the jury the witnesses’ “connection if any with the act causing the injury complained of,” held to be erroneous.</p> <p>4. Instructions, § 88*—when instruction on determination of preponderance of evidence is erroneous. In an action to recover damages for personal injuries sustained in an automobile accident, where an instruction was given that the fact, if it were a fact, that the larger number of witnesses testified on one side did not necessarily alone determine the preponderance of the evidence, and which omitted the element of the number of witnesses in enumerating the elements to be considered in determining the preponderance of the evidence, held that the number of witnesses testifying on one side was important, in determining the preponderance of the evidence, and it was reversible error to smother this factor by the negative words used in the first part of the instruction and omit it entirely from the affirmative statement .of the elements necessary to be considered.</p> <p>5. Automobiles and garages, § 3*—when refusal to give proper instruction is not reversible error. In an action to recover damages for personal injuries sustained in an automobile accident, refusal to give an instruction that it must be shown that the car was operated by the defendant’s servants acting within the scope of their authority, held not reversible error in view of defendant’s denial of ownership of the car.</p> <p>6. Evidence, § 444*—when admission of opinions of medical witnesses is erroneous. The admission of the testimony of medical witnesses as to their opinion based upon information given them concerning the history of the case and partly on subjective and partly on objective symptoms, from their examination of the party for the purpose of qualifying as witnesses and not for treatment, held to be prejudicial error, in an action to recover damages for personal injuries.</p>

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

<p>Abstract of the Decision.</p> <p>Partnership, § 52*—when evidence is insufficient to show. Evidence held insufficient to show that certain defendants, appellants, were connected in any way, as partners or otherwise, with a certain detective agency, to an agent of which plaintiff paid a certain sum of money, in an action to recover such money.</p>

<p>Abstract of the Decision.</p> <p>1. Banks and banking, § 90*—when evidence is sufficient to show that funds represented by check equitably belonged to third person. Evidence held to show that the funds represented by a certain check drawn to the order of the company of which plaintiff was secretary and deposited by the plaintiff, after indorsement by the company, to his personal account in the defendant bank equitably belonged to the beneficial plaintiff and were held by the plaintiff in trust, and that the company to whose order the check was drawn had no interest, legal or equitable, in such funds, in an action to recover the amount of a check drawn by the plaintiff upon his said account which the defendant refused to pay.</p> <p>2. Banks and banking, § 90*—when funds in account of depositor are wrongfully applied upon account of third person. Where a party holding funds in trust deposited same in a bank to his personal account, held that the legal title to such funds was in the depositor and the equitable title in the one for whom the depositor held them in trust, and that the bank wrongfully applied the funds upon the account of a third party, a corporation, of whom the depositor was an officer.</p> <p>3. Interest, § 5*—when allowed. Where a bank wrongfully refused payment of a check drawn upon the drawer’s account therein, the funds of which it had illegally applied upon the account of another, held that the drawer would be entitled, upon recovery for the amount of the check, in an action for the use of the equitable owner, to interest either' upon the theory that there was an unreasonable and vexatious delay in withholding payment or on the theory that interest will be allowed on money received to the use of another.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the October term, 1914.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Municipal Court of Chicago in Case No. 22,598. Appeal from the Municipal Court of Chicago in Case No. 22,693; the Hon. John J. Suixivan, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 329*—when evidence sufficient to show agreement to deliver specified quantity of material. Evidence held sufficient to sustain the finding that the plaintiff had agreed to deliver to the defendant 40,000 pounds of certain material, in an action to recover for a portion of such material delivered at the agreed price per pound.</p> <p>2. Accord and satisfaction, § 4*—what constitutes. Where, after the delivery of a certain quantity of material, a dispute arose between the parties as to whether a certain larger quantity had been agreed to be delivered, and one of the parties who contended the agreement was that such larger quantity was to be delivered purchased the difference between it and the amount delivered in the open market at an advanced price and sent to the other party his check, which the latter accepted, for a certain amount, stating it was in payment for material delivered by such'other party after deducting the amount of the excess over the agreed price paid on such additional material purchased at an advanced price, and certain expenses, held that there was an accord and satisfaction between the parties by the giving and accepting of the check.</p> <p>3. Sales, § 320*—when purchaser is entitled to deduct increased cost of goods purchased in marlcet from purchase price of goods delivered. Where the plaintiff had agreed to deliver to the defendant a certain quantity of material at an agreed price per pound, and after delivering a portion thereof failed to deliver the balance, and the defendant, after notice to the plaintiff that he would do so, purchased the balance in the open market at an advanced price per pound, held that the defendant was authorized to deduct from the amount of the delivered material at the agreed price per pound the excess over such price which he paid for the balance of the agreed amount.</p>

<p>1. Death, § 2*—existence in State of common-law rule as to presumption of. The common-law rule of presumption of death from seven years’ absence prevails in Illinois.</p> <p>2. Insurance, § 747*—when subsequent by-law of fraternal beneficial association -is binding upon insured. A fraternal beneficial association may legally adopt a by-law subsequent to the issuance of an insurance certificate which shall be applicable to and binding upon the insured under such certificate where the certificate expressly provides that the insured shall comply with all laws, rules and regulations of the association enacted after the issuance of such certificate.</p> <p>3. Insurance, § 747*—when subsequently enacted by-law requiring proof of death other than by presumption arising from absence is invalid. Where a fraternal insurance certificate provided that the insured would comply with the laws, rules and regulations of the association, including those which might be enacted thereafter, and the insured complied with all such laws, rules and regulations up to a certain date, when he disappeared, and his beneficiaries continued from and after that date to comply therewith and paid all dues and assessments levied upon the certificate, and the association received and accepted such payments with full knowledge of the disappearance of the insured until more than seven years since his disappearance had elapsed, and the circumstances of the case were such that under the common-law rule as to the presumption of death from seven years’ absence the death of such insured would be presumed and legal proof thereof could be made under such certificate, held that a by-law enacted three months only prior to the expiration of said seven years, providing in effect that there should be no recovery under any certificate because of death occurring prior to the expiration of the term of the insured’s life expectancy except upon proof of death other than by presumption from absence or disappearance, was unreasonable and invalid and of no effect as to such certificate, irrespective of the question whether such by-law was against public policy or in contravention of law or was illegal per se.</p> <p>4. Insurance, § 121*—when common-law rule as to presumption of death from absence is part of contract. The common-law rule as to presumption of death from seven years’ absence, held, though a rule of evidence, to be a material part of a contract of life insurance.</p> <p>5. Insurance, § 747*—necessity that subsequently enacted laws modifying contract be reasonable. Where a fraternal • insurance certificate provided that the insured would comply with all laws, rules and regulations of the association then or thereafter enacted, held that while the association would have the right and power to modify the contract of insurance by subsequently enacted laws, rules and regulations it must act in so doing reasonably and with some regard for the rights of the insured and of the beneficiaries and in good faith without doing substantial injustice to him or them.</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 185*—when evidence sufficient to show that death of swimmer in natatorium is not due to drowning. In an action to recover damages for death alleged to have been from drowning while the deceased was swimming in a natatorium, evidence held' sufficient to show that death was not due to drowning but to organic disease, notwithstanding the verdict of the coroner’s jury recited that the death was caused by drowning, the uncontradicted medical evidence being to the effect that a post-mortem examination showed no water was found in the lungs, chest or bronchial tubes or stomach and that there was a large thymus gland and greatly enlarged spleen, mesentery glands, and intestinal and lymphatic structures, and that death while swimming is common to persons in such physical condition, and that the death in this case was due to the organic disease found.</p> <p>2. Negligence, § 28*—when oumer is not guilty of negligence in maintenance and operation of natatorium. In an action to recover damages for death while deceased was swimming in defendant’s natatorium, evidence held to show there was no negligence on the part of the defendant in the equipment or operation of his natatorium, notwithstanding there was much noise and shouting going on just before and at the time deceased met his death from thirty-five boys swimming in the place; signs as to the depths of the water and warning signs as to safety being placed in the tank, and two life guards being stationed there, and efforts being promptly made by them to recover the deceased from the water and to resuscitate him with the aid of a pulmotor.</p> <p>3. Death, § 67*—when verdict for damages for is inadequate. A verdict of five hundred dollars, in an action to recover damages for death, held to he so wholly inadequate as compensation as to indicate that the jury were not guided by any principle of law or justice applicable to the facts, but by sympathy.</p>

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

<p>Abstract of the Decision.</p> <p>1. Conspiracy, § 50*—when evidence sufficient to sustain charge of to defraud employer. The testimony of the State held sufficient to sustain the charge beyond all reasonable doubt, under an indictment charging an employee with conspiring to cheat and defraud his employer, where the evidence showed, irrespective of an alleged confession by the defendant, that he had falsely certified to his employer his receipt of certain goods, whereupon his employer, in reliance upon the truth of such certification, had paid to defendant’s co-conspirator in the indictment a certain sum of money in payment for such goods which were never received.</p> <p>2. Criminal law, § 526*—when errors are harmless. The record in a prosecution for conspiracy held to disclose no prejudicial error in the admission or rejection of evidence nor any prejudicial remarks of the court or counsel, where the evidence as to defendants guilt was very convincing.</p> <p>3. Criminal law, § 491*—what points and arguments may not he made in petition for rehearing. New points and new arguments are of no avail in a petition for rehearing in a criminal case.</p>

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

<p>1. Judgment, § 360*—when may' not he collaterally reviewed. A judgment which is undisturbed by appeal or writ of error is a verity and binding upon the parties, and cannot be collaterally reviewed in equity, where the court’s jurisdiction is not attacked either as to the parties or the subject-matter or as to fraud, accident or mistake, or as unconscionable, and all parties were before the court and heard both before and after the judgment.</p> <p>2. Judgment, § 318*—when equity will not relieve against. "While a court of equity will relieve against a judgment procured by fraud, accident or mistake, no aid will be extended merely for errors intervening in the progress of the cause or the entry of the judgment.</p>

<p>Bills and notes, § 434*—when exclusion of evidence as to failure of consideration is erroneous. In an action by the payees of a note against the maker where the defendant pleaded a failure of consideration by reason of plaintiffs’ failure to assign a certain claim for which the note was given, the refusal to admit proof of a letter by which the note was delivered to the plaintiffs and accompanying which was a written assignment of the claim for plaintiffs’ execution, and of a copy of such assignment, and that such assignment was not executed, held to be reversible error, as such proof tended to support the defense, and the note itself was produced in evidence.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13*—when statement of claim, in action for mistransmission of telegram is defective. Where statement of claim alleged plaintiff’s purchase of a carload of poultry from a certain company at Milan, Tennessee, and that plaintiff had instructed such company to ship to Pittsburgh, Pennsylvania; that plaintiff delivered to defendant a telegram addressed to the company at Milan, Tennessee, saying: “Bill car poultry Grant street”; that defendant transmitted the telegram to Martin, Tennessee; that the company was “instructed by the party receiving the telegram to ship said poultry to Grant street, Chicago,” and that the car was shipped to Chicago, and plaintiff was compelled to forward it to Pittsburgh, causing damages complained of, held that such statement failed to state the essential elements of a tort on the part of the defendant, as the words “the party,” construed most strongly against the plaintiff, reasonably supported the inference that the message was delivered in proper form but that some other than the defendant’s agent was responsible for its misinterpretation, and also that such statement was defective in omitting any averment as to defendant’s business or as to a duty owing from defendant to plaintiff.</p> <p>2. Municipal Court of Chicago, § 19*—when judgment by default based upon defective statement of claim should be vacated. A judgment based upon a statement of claim in a tort action which fails to state the essential elements of a tort cannot stand, even where entered after defendant’s default, and should be vacated on motion.</p>

<p>1. Appeal and error, § 764*—when record on former appeal filed as additional record will he stricken from files. The record in a case on a former appeal which is filed as an additional record will he stricken from the files by the court on its own motion, as the court cannot look into the record of an independent proceeding to determine questions arising wholly on the record of the judgment as to which writ of error is filed.</p> <p>2. Toby, § 84*—when swearing of to try issues in tort action is not ground for reversal. In a tort action where the defendant was defaulted, the swearing of the jury “to try the issues” instead of swearing them merely to assess damages, held not to he ground for reversal.</p> <p>3. Appeal and ebbob, § 1332*—when presumed that notice of default or of assessment of damages was given. In a tort action where the defendant was defaulted, and service of notice of the default or of assessment of damages is not recited in the record, it must be presumed that such notice was given, as such recitation is not an essential part of the record.</p> <p>4. Appeal and ebbob, § 788*—when question of notice of default or of assessment of damages is not presented for review. The question of notice of a defendant’s default or of assessment of damages in a tort action is not presented for review where the proceedings are not preserved in a bill of exceptions or otherwise.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>1. Corporations, § 218*-—when stockholder is not liable for unpaid subscriptions of other stockholders. On a creditor’s bill and intervening petition by the trustee in bankruptcy of a corporation, each seeking enforcement of liability for unpaid stock subscriptions, where a certain subscriber had paid in full for the stock subscribed by him and no other stock had been transferred to him on the books of the corporation and there was nothing on the books to show his ownership of any other stock, held, that such subscriber was not liable for the unpaid subscriptions of other stockholders but such liability attached to the holders of the legal title of su'ch other stock only, and that the courts would not look beyond the registered stockholder nor inquire into what equities he held.</p> <p>2. Corporations, § 231*—when evidence is insufficient to show making of stock subscriptions by agents of stockholder. Evidence held insufficient to show that certain unpaid stock subscriptions were made by certain parties as agents for the defendant, in a suit seeking to hold the defendant liable for such unpaid subscriptions.</p> <p>3. Corporations, § 218*—when transferee of stock is liable for corporate debts and unpaid balances of subscriptions. The transferee of stock in a corporation is not recognized as a stockholder nor chargeable with the corporate debts or unpaid balances of subscriptions until the transfer is made on the books of the corporation or a contractual relationship between him and the corporation otherwise established.</p>

<p>Abstract of the Decision.</p> <p>1. Homestead, § 113*—when sale of on execution is invalid. Where the property of a judgment debtor was taken and sold on execution and a deed therefor issued to the purchaser, in which property the debtor had at the time of such sale a homestead which was not set off to him, and the value of his equity of redemption was not worth $1,000 at the time of the sale or since, held that such sale and deed were void.</p> <p>2. Interpleader, § 18*—when court may in decree establish equitable lien or trust upon fund. On a bill of interpleader and answer of the defendants, held that the court could so shape its decree as to do complete equity between the parties and fasten upon the fund in controversy any equitable lien or trust which one of the parties established, although the proprietary legal title and ownership belonged to the other.</p> <p>3. Liens, § 4*—when equitable lien on fund does not arise. Where, under a bill of interpleader as to certain rents deposited in court, one of the defendants claimed ownership of the premises as an execution creditor under a judgment in his favor against the lessor and a sale and deed thereunder which were void, and there was no averment of fact in the pleadings to support an equitable lien on the part of such defendant nor proof to establish one, held that no equitable lien would arise from the mere existence of the judgment in favor of such defendant, and the lessor would be entitled to such rent.</p> <p>4. Interpleader—when question whether mortgagee is necessary party is not presented for review. Where a bill of interpleader to determine the right to certain rent deposited in court alleged that the complainant leased the premises from and attorned to one df the defendants, the other of whom was a mortgagee, and there was no averment to the contrary in the pleadings or the proof, held that the question whether the mortgagee was a necessary party to the suit was not presented for review.</p>

<p>Abstract of the Decision.</p> <p>1. Venue, § 10*—when denial of motion for change of not deemed to be upon ground of want of reasonable notice. The action of the trial court in denying defendants’ motion for change of venue cannot be deemed to be on the ground of want of reasonable notice when the notice is served at two o’clock of the day before that of hthe hearing of the motion, and the parties are represented at such hearing and no longer notice is required or usually given, and there is no complaint of insufficient notice.</p> <p>2. Venue, § 24*—when denial of motion for change of is erroneous. The court cannot arbitrarily deny a change of venue where one brings himself within the provisions of the statute.</p> <p>3. Trial, § 286*—when necessary to hear evidence. Entry of judgment upon issues of fact raised by the pleadings in a trial before the court without hearing evidence, held to be erroneous.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Patrick B. Elanagan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>1. Railroads, § 465*—applicability of ordinance requiring lights at night on head of moving train to yard employees. An ordinance of the City of Chicago requiring that moving trains on any track in the city, in the nighttime, should keep and have a brilliant and conspicuous light on the end thereof in the direction towards which the train is moving, held applicable to railroad yards in favor of employees as well as of the public.</p> <p>2. Appeal and error, § 1236*—when defendant cannot complain of alleged erroneous introduction of evidence. Where the defendant objected to certain portions of a written instrument introduced in evidence as incompetent, and for the purpose of preserving his point read such portions into the record in the presence of the jury and introduced evidence based expressly upon such instrument, and the plaintiff offered thereupon to strike out the portions objected to before reading the instrument in evidence, and the jury were instructed to disregard such portions, held that the defendant would not be in position to thereafter complain of such portions of the instrument.</p> <p>3. Master and servant, § 448*—when railroad switchman has right to assume compliance with ordinance. A railroad switchman is not bound to anticipate negligence on the part of the operator of a moving train as to such operator’s duty to maintain lights thereon, but has a right to assume that the operator had complied with an ordinance requiring such lights.</p> <p>4. Master and servant, § 760*—when question whether violation of ordinance as proximate cause of death of switchman is for jury. Whether a violation by the operator of a moving train of an ordinance requiring lights on such trains was the proximate cause of a switchman’s death, held to be a question for the jury in an action to recover damages for such death.</p> <p>5. Master and servant, § 704*—when evidence is sufficient to sustain finding that violation of ordinance was proximate cause of death of switchman. In an action for the death of a railroad switch-man, held that the finding that the defendant’s violation of an ordinance requiring lights on moving trains was the proximate cause of the death of plaintiff’s intestate was not against the manifest weight of the evidence.</p> <p>6. Master and servant, § 699*—When evidence sufficient to show exercise of due care by deceased switchman. Evidence from which due care on the part of plaintiff’s intestate, a switchman, at the time he was killed by defendant’s negligence in operating its train might be inferred, held to be sufficient to sustain a finding in favor of the plaintiff.</p> <p>7. Death, § 67*—when verdict is not excessive. A verdict for $10,000, held not to be excessive, in an action to recover damages for death from negligence.</p> <p>8. Torts, § 31*—when instruction in action against railroad company for death of employee is not erroneous. An instruction in an action against one of two railroad companies to recover damages for the death of an employee that the defendant would not be entitled to the benefit of any moneys paid by the other company to the plaintiff on account of the same death in the event of a judgment for the plaintiff, held not erroneous in the absence of any evidence tending to show that the two companies were joint tort feasors.</p> <p>9. Accord and satisfaction, § 11*—when instruction on effect of covenant not to sue one party is not erroneous. Where an instrument introduced in evidence recited that it was a covenant by the plaintiff not to sue and was not an accord and satisfaction of any claims the plaintiff might have against the other party to such instrument, and there was no evidence to dispute such recital, held that an instruction that a covenant not to sue one party on account of a certain injury or death would not he a bar or defense to a suit brought against another and different party on account of such injury or death was proper, in an action to recover damages for a certain death against one party wherein such instrument as to another party was introduced in evidence.</p> <p>10. Appeal and error, § 1514*—when court of review .will not determine Whose conduct of opposing counsel is less reprehensible. It is not the province of a court of review to scrutinize a record with a view to determining whose conduct of opposing counsel in a case engaging in personal clashes and altercations is the less reprehensible, or who scored the greater number of points.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the April term, 1917.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>1. Marriage, § 1*—what constitutes marriage within one year of time of granting of divorce. Where the defendant was granted a decree of divorce during the forenoon of June 6, 1913, and was married to the complainant at 5 o’clock p. m., June 6, 1914, held that such marriage was within the provision of the statute prohibiting marriage “within one year from the time” a decree of divorce from a prior marriage was granted, in a suit for annulment of marriage under such provision, as the first day should be excluded, and the last included.</p> <p>2. Time, § 1*—how computed in statutes. The general rule for the computation of time under a statute is to exclude the first day and include the last day.</p>

<p>Abstract of the Decision.</p> <p>1. Malicious pbosecution, § 74*—what plaintiff must prove. To maintain an action for malicious prosecution, the plaintiff must show that the defendants acted from malicious motives in prosecuting him and that the defendants had no sufficient reason to believe him guilty, and the action must fail if either of these elements is wanting.</p> <p>2. Malicious pbosecution, § 75*—how want of probable cause must be proved. The want of probable cause, though negative in character, must be proved by the plaintiff by some affirmative evidence, in an action for malicious prosecution.</p> <p>3. Malicious pbosecution, § 75*—what evidence is sufficient to establish want of probable cause. Slight evidence will usually suffice in establishing a want of probable cause, in an action for malicious prosecution.</p> <p>4. Malicious pbosecution, § 7*—what constitutes probable cause. Probable cause which will relieve a prosecution from liability consists in the party’s belief in the guilt of the accused based on circumstances sufficiently strong to evidence such belief in the mind of a reasonable and cautious man.</p> <p>5. Malicious pbosecution, § 75*—when evidence tends to show that defendants acted upon probable cause in swearing to complaint for criminal libel. In an action for malicious prosecution, where the evidence tended to show that the defendants had sworn to a complaint against the plaintiff charging the latter with criminal libel after the State’s Attorney had caused his assistant to examine the alleged libelous publication and report thereon, and that the judge of the court to whom such complaint was presented had indorsed thereon that he had examined the complaint and was satisfied there was probable cause for filing the same, and that upon dismissal of such complaint a further complaint was presented on the same charges to another judge and later to the grand jury, held that such facts tended to show the defendants had acted upon probable cause in swearing to said complaint.</p> <p>6. Malicious prosecution—what is issue in action for in prose-outing for criminal libel. The question to be tried in an action for malicious prosecution for criminal libel is not whether the plaintiff was guilty of criminal libel but whether the defendants had reasonable grounds to believe and did actually believe the plaintiff guilty.</p> <p>7. Malicious prosecution, § 75*—what is not evidence of want of probable cause in instituting a criminal prosecution. The voluntary dismissal of a criminal prosecution is not evidence of want of probable cause in instituting it, in an action for malicious prosecution, even though such dismissal was at the instance of the prosecuting witness.</p> <p>8. Malicious prosecution, § 75*—what is not prima facie evidence of want of probable cause in arraignment of accused. The discharge of the accused by an examining magistrate is not prima facie evidence, in an action for malicious prosecution, of a want of probable cause in his arraignment.</p> <p>9. Malicious prosecution, § 75*—what is not evidence of want of probable cause in presentment of indictment. The return of a “no bill” by a grand jury is not evidence of want of probable cause in the presentment to it of an indictment, in an action for malicious prosecution.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Building restrictions and regulations, § 1*—when building not used for business purposes. A flat building should not be considered as used for business within a building ordinance, because a physician, occupying one of the apartments, received and treated patients therein, or had his name in the window.</p> <p>2. Building restrictions and regulations, § 1*—when building fronts on street. A building located upon a corner of a block with an entrance upon one street only should properly be considered as fronting upon both streets, within a building ordinance.</p> <p>3. Building restrictions and regulations, § 1*—how ordinance construed as to consent of majority of property owners and as to residential character of buildings. Where an ordinance prohibited garages in blocks, wherein two-thirds of the buildings on both sides of the street were used exclusively for residence purposes or within one hundred feet of any such street, without the consent of a majority of the property owners on both sides of such street according to the frontage, and provided that a building fronting upon another street and located upon a corner lot should not be considered in determining such two-thirds of the residence buildings, held that buildings on corner lots should not be considered in determining the residential character of buildings but should be in obtaining the consents of owners.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 367*—when instruction on burden of proof in action to recover payment made on purchase price of automobile is erroneous. In an action to recover money paid on the purchase of a new automobile, where the plaintiff claimed that the chassis of the car delivered was not new, held that an instruction that the plaintiff had the burden of showing that the chassis was “a used and second-hand chassis,” and that unless he so showed he could not recover, was erroneous, as from the evidence the jury could reasonably understand that “a used and second-hand chassis” was one that had been sold or used by a purchaser, which was not the charge made, and as such instruction omitted the important elements of age and wear.</p> <p>2. Sales, § 114*—what does not constitute performance of contract for sate of a new automobile. Where defendant agreed to sell plaintiff a new automobile, held that he could not avoid his obligation by furnishing a car worn by showing it to prospective purchasers or moving it from place to place for providing equipment “and similar purposes,” as such use alone might so wear a car as to materially impair its operation.</p> <p>3. Sales, § 357*—when instruction on right of recovery in action to recover money paid on purchase of new automobilé is erroneous. In an action to recover money paid on the purchase of a new automobile based upon a claim that the car furnished was, from age and wear, from whatever cause, not new, held that an instruction that even if the uses wore the automobile to the breaking point the plaintiff could not recover was erroneous, as if the jury should believe that the use and wear had been shown to be more than reasonably should be in a new car of the kind and price, plaintiff would be entitled to recover.</p> <p>4. Pleading, § 1*—what time governs as to determination of rights of parties. Where no supplemental pleadings are filed, the rights of the parties must be determined according to the facts existing at the time the action was commenced.</p>

<p>Abstract of the Decision.</p> <p>1. Partnership—when evidence is sufficient to show termination of. Evidence held sufficient to warrant the finding that the co-partnership formerly existing between certain three defendants was terminated prior to the recovery of a pertain judgment against one of them, and that such one had thereafter no interest in the copartnership or in its funds except as an employee.</p> <p>2. Partnership, § 259*—when evidence is sufficient to show- that partnership was not indebted to retiring partner. On a creditor’s bill on a judgment against a retiring member of a partnership, evidence held sufficient to show that the partnership was not indebted to the partner at the time of the commencement of the suit</p>

<p>1. Insurance, § 583*—when special plea alleging lapse of life policy is bad. In an action to recover on a life insurance policy, a special plea alleging that the policy had lapsed by failure to pay a premium due on a certain date, held bad on demurrer, because for aught appearing therein such premium was not due until after the insured’s death, and also because the forfeiture was conditioned in the policy upon “failure to pay premiums.”</p> <p>2. Insurance, § 583*-—what is better practice in presenting issue of forfeiture. The better practice in presenting an issue of forfeiture of an insurance policy is by a special plea.</p> <p>3. Insurance, § 583*—when immaterial whether special plea of forfeiture is good or bad. Unless the court rejects evidence of a special plea of forfeiture of a life insurance policy, when offered under the general issue, it is not material whether the plea is good or bad.</p> <p>4. Insurance, § 611*—what premiums plaintiff must prove payment of. In an action to recover on a life insurance policy, the plaintiff is not bound to prove the payment of- all premiums but only that of the first, in some form.</p> <p>5. Insurance, § 659*—what constitutes prima facie proof of payment of first premium. Delivery of a life insurance policy and its possession by the insured is prima facie proof of payment of the first premium.</p> <p>6. Insurance, § 611*—when insurer must prove default in payment of premiums. Default in payment of a life insurance premium after the first which avoids or forfeits the policy is a defense which must be proved by the insurer.</p> <p>7. Evidence, § 34*—when continuance of existence of subject-matter or relation presumed. Where the existence of a particular subject-matter or relation has once been proved its continuance is presumed until proof is given to the contrary.</p> <p>8. Insurance, § 384*—when formal objections by insurer deemed waived. Where an insurance company after a loss places its refusal to pay upon some ground not affecting the merits of the case, as want of proper notice, all other formal objections, as proof of death, not then complained of or pointed out will be regarded as waived.</p> <p>9. Insurance, § 582*—when plea insufficient. In an action by the party holding the legal title to recover on an insurance policy, a plea that some other person had the equitable title, held not to state a sufficient defense.</p> <p>10. Insurance, § 660*—what constitutes prima facie case in action on life policy. In an action to recover on a life insurance policy, introduction of the policy and evidence of waiver of proofs .of death, held to make a prima facie case.</p> <p>11. Evidence, § 165*—what constitute self-serving statements. In an action on an insurance policy, held that letters of the defendant tending to show nonpayment of a premium could not be availed of by him, as they were self-serving statements.</p>

<p>Abstract of the Decision.</p> <p>1. Physicians and stjegeons, § 29*—when evidence sufficient to sustain claim, of recoupment. In an action by a veterinarian for services, evidence held sufficient to sustain defendant’s claim of recoupment, tending to show loss of a number of defendant’s horses from lack of attention by plaintiff.</p> <p>2. Appeal and error, § 1327*—when propriety of judgment is presumed. Where the abstract failed to show whether a defendant’s claim was in set-off or recoupment, held that the propriety of the judgment for plaintiff for one dollar would be presumed.</p> <p>3. Appeal and error, § 1575*—when judgment not reversibly erroneous. A judgment for so small an amount as one dollar held not reversible for a technical error.</p>

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

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

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1917.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>Abstract of the Decision.</p> <p>1. Interpleader, § 6*—what are essentials to hill of. It is essential to a hill of interpleader that the party seeking relief shall have incurred no independent liability to either party with reference to the subject-matter of the suit; that he should have acknowledged the title oí neither in respect to the specific property in dispute; and that he claims no interest in the subject-matter himself.</p> <p>2. Interpleader, § 2*—when propriety of hill of may not he raised. Where defendants to a bill of interpleader interplead without objection and go to trial on the issue, it is too late to raise the objection that the case is not a proper one for a bill of inter-pleader.</p> <p>3. Interpleader, § 14*—when cross-Mil does not lie. On 'a bill of interpleader as to certain warrants for payment of money out of a certain special assessment fund in complainant’s possession, in which complainant and one of the defendants disclaimed as to such warrants, held that a cross-bill by such defendant as to other portions of such fund than relates to such warrants would not lie.</p>

<p>Abstract of the Decision.</p> <p>1. Wabehousembk", § 27*—when evidence sufficient to show that injury to poultry occurred during storage. In an action against a warehouseman for alleged negligence in the handling and storage of poultry, evidence held to show that the poultry in question was in good condition when delivered to defendant for storage in defendant’s warehouse and that the defective condition in which it was found on redelivery to the plaintiff, whatever its cause, occurred during the time it was in defendant’s possession.</p> <p>2. Warehousemen, § 28*—when negligence in handling and care of poultry is question of fact. In an action to recover damages for alleged negligence in the handling and care of poultry stored in defendant’s warehouse, where the poultry was in good condition when delivered to the defendant and in bad condition when redelivered to plaintiff, held that the question of defendant’s negligence was a question of fact.</p> <p>3. Warehousemen, § 27*—-what constitutes prima facie case of negligence. Where personal property and merchandise generally was shown to have been in good condition when delivered to a bailee for storage and in bad condition when redelivered to the bailor, held that a prima facie case of negligence on the part of the bailee was made out, in an action to recover damages because of such condition on redelivery, notwithstanding such property and merchandise consisted of perishable goods.</p>

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

<p>1. Descent and distribution, § 83*—when inventory filed by heir of surety on bond for release of property is admissible. In an action against the heir of a surety on a bond given to release property levied on under attachment to recover the penalty of the bond, the inventory filed by such heir as administrator of the estate of the surety setting forth the value of the latter’s real estate of which he died seized, held to be admissible against such heir as evidence of such value and prima facie proof thereof, and also of the fact that the surety died seized of such real estate.</p> <p>2. Descent and distribution, § 83*—when proof of value of property of deceased is immaterial in action against heir. In an action against the heir of a surety on a bond given to release property levied on in attachment, held that the value or amount of such property was immaterial, as the bond superseded the levy and operated to restore to the defendant in attachment the property.</p> <p>3. Appeal and error, § 1256*—when party cannot complain of instruction. A party cannot be heard to complain of an instruction which, though faulty, minimized his liability and did not injure him.</p> <p>4. Descent and distribution, § 83*—when burden of proving homestead or dower interest is on heir of surety on 'bond. In an action against the heir of a surety on an attachment bond given to release real property, held that the burden of proving a homestead or dower interest existed in the decedent’s real estate was on such heir as an affirmative defense.</p> <p>5. Attachment, § 360*—who are bound by recitals in bond for release of property. In an action against the surety on a bond given to release property taken in attachment to recover the penalty of the bond, held that the recitals in the bond of the recovery, date and amount of the judgment in the attachment suit would be binding upon the parties' and those claiming or defending under them, and would be sufficient proof of such facts.</p> <p>6. Descent and distribution—when instruction on damages in 'action against heir on bond is proper. In an action against the heir of a surety on a bond given to release property taken in attachment, an instruction, given after retirement of the jury, directing that if they should find for the plaintiff they should find the amount of the debt to be the amount of the bond and assess damages at the amount of the judgment recited in the bond, with interest, held to be proper.</p> <p>7. Descent and distribution, § 84*—when judgment in personam for amount of debt proper on plea of riens per descent. In an action against the heir of a surety on an attachment bond given to release property to recover the penalty of the bond, where the defendant filed a plea of riens per descent which the proof showed to have been false, held that a- judgment in personam for the amount of the debt would be proper under Rev. St. ch. 59, sec. 18 (J. & A. H 5879).</p> <p>8. Descent and distribution, § 82*—re-enactment of common-law rule of effect of plea riens per descent. Rev. St. ch. 59, sec. 13 (J. & A. 5879) is a re-enactment of the common-law doctrine as to the effect of the plea of riens• per descent.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Os cab E. Heabd, Judge, presiding. Heard in this court at the October term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Victor P. Arnold, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1639*—when instruction on preponderance of evidence is not reversibly erroneous. In an action to recover damages for personal injuries, an instruction as to preponderance of evidence which enumerated various matters to be considered by the jury but omitted any reference to the number of witnesses téstifying pro and con, and concluded that from all these circumstances the jury should determine the preponderance of the evidence, held to be -misleading but not reversibly erroneous, having been cured by other instructions.</p> <p>2. Negligence, § 213*—when instruction enumerating facts constituting is misleading. In an action to recover damages for personal injuries, an instruction attempting to enumerate facts which, if proven, would constitute negligence as a matter of law, held not to be good practice and to be misleading, as the jury should determine whether the facts constitute negligence.</p> <p>3. Carriers, § 487*—when instmction on liability of street railroad for injuries to passenger alighting from car is erroneous. In an action to recover damages for personal injuries sustained while plaintiff was alighting from defendant’s street car, an instruction that defendant was not an insurer of the safety of its passengers, held to be inapplicable to the evidence and to tend to obscure the issue.</p> <p>4. Carriers, § 482*-—when instruction on amount of proof in action for‘ personal injuries is erroneous. In an action to recover damages for personal injuries sustained by a passenger while alighting from a street car, an instruction that plaintiff was only required to make out her case by a preponderance of the evidence and that any evidence, circumstantial or positive and direct, which tended to produce belief in the minds of the jury was proper to be considered by them in determining whether the defendant was guilty, held to be of no assistance to the jury in determining whether plaintiff was given sufficient time after the car had stopped to alight therefrom or whether she attempted to alight before it had stopped, which were the only questions involved, and to be confusing.</p> <p>5. Instructions, § 6*—when accuracy essential. Where the right to recovery in a case is doubtful, it is essential that instructions accurately state the law.»</p>

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

<p>Interlocutory appeal from the Superior. Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court.</p>

<p>Divorce, § 110*—when order allowing increase of alimony is improper. On an application for increase of alimony, where divorce had been granted for the wife’s fault, findings in an order increasing the amount of alimony that the husband’s income had increased since the original allowance of alimony and that the amount originally allowed was insufficient to maintain the applicant according to the station of life in which she had lived prior to the divorce, held to be insufficient to warrant such order increasing the amount of the alimony, as the husband’s means were not a controlling factor in such case, and the insufficiency of the amount allowed to maintain the applicant according to the station in life in which she had lived prior to the divorce was immaterial.</p>

<p>Abstract of the Decision.</p> <p>Judgment, § 82*—when affidavit in support of motion to vacate ■judgment by confession under cognovit in lease presents good defense. On motion to vacate a judgment by confession taken under a cognovit contained in a lease for rent as due under the lease, defendant’s affidavit in support of such motion setting forth that he had been compelled to abandon the lease by reason of the plaintiffs leasing another portion of the building for saloon purposes, contrary to a provision in defendant’s lease that it was understood that the said lessor should not lease any portion of the building to any one for the purpose of retailing liquors or carrying on a saloon or buffet business, whereby it became impossible for defendant to continue in the saloon business in the building under his lease, held to present a good defense to an action on the lease for rent, so as to warrant opening up the judgment and permitting defendant to plead.</p>

<p>1. Landlord and tenant, § 270*—what does not constitute eviction. Upon a landlord’s re-entry under the provision of a lease allowing him to do so on the tenant's default without terminating the lease and relet on account of the tenant for such rent and upon such terms as the landlord should approve, the latter may make alterations in the leased premises for the purpose of securing a new tenant, and his action in so doing does not amount to an eviction of the old tenant, so as to discharge him from liability under the lease.</p> <p>2. Landlord and tenant, § 325*—when evidence sufficient to show assumption of lease. The evidence held to sustain the finding that plaintiff assumed a certain lease from May 1, 1912, and not from October 1, 1911, when defendant vacated plaintiff’s premises leased by defendant from plaintiff, in an action to recover rent under such lease for such period.</p> <p>3. Corporations, § 51*—what constitutes prima -facie proof of existence. Under a plea of nul tiel corporation, the production of the corporate charter held to make a prima facie case of corporate existence.</p> <p>4. Corporations, § 33*—how question of violation of statute as to commencement of business may be raised. The question whether a corporation de jure had violated the provision of the statute that a corporation must proceed to do business within two years after the date of its license can only be raised in a quo warranto proceeding by the State and not in a collateral proceeding.</p> <p>5. Corporations, § 21*—when corporation is de jure corporation. Where a corporation was duly organized in compliance with all of the provisions of the statute relating to the organization of such corporations, held that such corporation became a corporation de jure when its articles of incorporation were properly certified by the Secretary of State and recorded in compliance with the statute.</p> <p>6. Safe deposit companies'—when may maintain business through lessee. A corporation organized for maintaining, operating and managing a system. of safety vaults may lawfully carry on such business through the instrumentality of a lessee.</p> <p>7. Corporations, § 33*—how question of fraud in organization may be raised. The question whether the organization of a corporation was a fraud upon the State, in that its expressed object was to conduct the business of maintaining a system of safety vaults, while its real purpose was to purchase and maintain an office building, cannot be raised collaterally but only in a quo warranto proceeding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Municipal Court op Chicago, § 13*—now defense of rescission of contract and alleged custom may be pleaded. Under Rule 22 of the Municipal Court, providing that a statement or affidavit may he stricken from the files and judgment rendered accordingly as may he just when the party appears to be relying upon a cause of action or defense which is unfounded in law, where a defendant undertakes to set up a defense of rescission of the contract sued on, and an alleged custom, it is not necessary for him to set out in detail every fact and element that would be necessary to make a complete defense, nor for the plaintiff to set forth the facts which, if proven, might defeat such defense.</p> <p>2. Municipal Court op Chicago, § 13*—when defense of general custom, sufficiently pleaded. Where a defendant in defense to a statement of claim in the Municipal Court relies upon a certain general custom, it is sufficient in his affidavit of merits or statement of set-off to inform the plaintiff he intends to rely upon such custom, the nature of which is expressly set forth.</p> <p>3. Municipal Court op Chicago, § 13*—necessity of pleading reasonableness or validity of general custom. The reasonableness of a general custom or whether it is against public policy relied upon as a defense to a statement of claim in the Municipal Court, held, to be matter to be gone into only in the course of the trial and not necessary to be pleaded.</p>

<p>1. Appeal and error, § 693*—when appointment of receiver by trial court improper after appeal. Where, after perfection on May 6, 1915, of an appeal from a decree in a suit in which a receiver had been appointed, the trial court rendering such decree entered an order removing such receiver and appointing another party as receiver, whose bond as such receiver was approved July 14, and filed July 17, 1915, on which date the Appellate Court issued a writ of certiorari for certification of the proceedings as to such order and for a stay of further proceedings, and the appeal and petition for the writ were later dismissed, held, in an action of forcible entry and detainer brought July 3, 1915 by the first receiver against the second receiver for possession of the premises involved in the suit, that such action was brought by the duly authorized receiver entitled to the possession of the premises, as a perfected appeal operates to stay any further proceedings by the court rendering the judgment or decree appealed from.</p> <p>2. Appeal and error, § 687*—what is effect-of perfected appeal. A perfected appeal operates to stay any further proceedings by the court rendering the judgment or decree appealéd from.</p>

<p>Appeal from the County Court of Vermilion county; the Hon. Lawrence T. Allen, 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 October term, 1916.</p>

<p>Error to the County Court of Sangamon county; the Hon. J. B. Weaver, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Licenses, § 12*—what evidence material to show that club is mere shift or device to avoid payment of license fee. In an action to recover a penalty for conducting a pool and billiard room without a license in violation of a village ordinance, where one or more of the defendants had organized a so-called club of which they were the managing officers and the membership fee in which, or a ticket representing same, was credited for a certain amount of the charge for pool or billiards' until exhausted, after which the ordinary prices for the games were paid in cash, held that while it was immaterial what the defendants did in the management of the room when they had a license, if they had one, yet that the room was run in the same manner and with similar charges as a licensed pool room by the same parties, or some of them before the so-called club was organized, was material to show that the club organization was only a shift or device on the part of the defendants to avoid the payment of a license fee.</p> <p>2. Licenses, § 12*—when club is mere shift and device to avoid payment of license fee. In an action to recover a penalty for conducting a pool and billiard room without a license in violation of a village ordinance, where one or more of the defendants had organized a so-called club of which they were the managing officers, and the membership fee in which, or a ticket representing same, was credited for a certain amount of the charge for pool or billiards until exhausted, after which the ordinary prices for the games were paid in cash, held that such club organization was a device on the part of the defendants to avoid the payment of a license fee.</p> <p>3. Criminal law, § 33*—when persons guilty as principals. All persons who aid, abet or assist in the commission of an offense are guilty as principals, as there can he no agency in the doing of an unlawful act.</p> <p>4. Instructions, § 137*—when properly refused. An instruction which is argumentative in form and not made applicable to the case, although stating the legal proposition involved correctly, is properly refused.</p> <p>5. Municipal corporations, § 867*—when error in instruction cured. Although an instruction when read alone was misleading, as bearing an inference that all of the defendants in an action to recover a penalty for violation of a village ordinance must be found guilty or all not guilty, held that the error was cured when, on being read in connection with all of the instructions, the jury could not fail to understand they might find some defendants guilty and some not guilty.</p> <p>6. Municipal corporations, § 865*—when instruction as to form of verdict in action for penalty properly refused. In an action to recover a penalty for violation of a village ordinance against several defendants, an instruction that on finding for the plaintiff the form of the verdict might be to assess the damages at a certain sum against each defendant as the jury might determine from the evidence, held properly refused.</p> <p>7. Municipal corporations—what is proper form of judgment in action against several defendants to recover penalty. In an action to recover a penalty for violation of a village ordinance against several defendants, a judgment against each defendant severally is erroneous, the judgment should be against such defendants, if any, as are found guilty jointly.</p>

<p>Abstract of the Decision.</p> <p>1. Mobs, § 12*—when evidence insufficient to sustain verdict for city in action for damages for injury to property. In an action to recover, under section 256a of the Criminal Code (J. & A. 1f 3917), damages against a city for injuries to or destruction of plaintiff’s property by a mob, where it appeared that a crowd of one hundred fifty to three hundred persons congregated about plaintiff’s residence, shouted, pounded on the house, hammered on circular saws hung on trees in the yard, fired guns, threw bricks through windows, built a fire in the street with plaintiff’s lumber, burned his lawn mower, attached a hose to a faucet and threw water over and about the house, plastered mud on the porch, and drove plaintiff and his wife into a closet in terror, and both the city mayor and the marshal knew of such actions on the part of the crowd but took no steps to stop same, held that a verdict and judgment for the defendant were against the manifest weight of the evidence.</p> <p>2. Trial, § 195*—when instructing of verdict improper. Where there is evidence tending to support the contention of both parties, the trial court cannot instruct a verdict.</p>

<p>1. Insurance, § 763*—what period covered by incontestability clause. A clause in a certificate of membership in a fraternal beneficial society that such certificate should be incontestable after remaining in force a certain number of years, held to relate only to conditions existing at the time the certificate was issued and not to subsequent breaches of the contract.</p> <p>2. Insurance, § 744*—when application part of certificate. Where a certificate of membership in a fraternal beneficial society referred to and made a part of such certificate the member’s application for membership, held that the application must be read into and with the certificate.</p> <p>3. Insurance, § 747*—when subsequently enacted by-law as to forfeiture of membership for engaging in prohibited occupation is valid. Where the application for membership of a member of a fraternal beneficial society provided that should the applicant engage in any 'occupation designated as hazardous he should stand suspended as a beneficiary member so long as he was so engaged; that no notice from any officer of the society should be necessary to cause his suspension; that no recovery should be had on the certificate issued on such application, and that the application and the laws of the society then in force or thereafter promulgated were a part of the contract of insurance of the society, all laws, rules and regulations of which the applicant promised to obey and conform to, and the certificate issued on such application provided that the application, laws, rules and regulations of the society then in force or thereafter adopted were a part of the contract, held that a law of the society adopted more than three years after the issuance of such certificate, prohibiting the admission to the society of a class which was at the time of such application and issuance of certificate designated only as hazardous, and providing that any member engaging in the business of the prohibited class should thereby forfeit his membership and that no recovery should be had on such certificate, would be binding upon such member, notwithstanding a provision in such certificate that it should be incontestable after three years.</p>

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

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

<p>1. Death, § 48*—when evidence as to financial condition of widow or next of kin immaterial. In an action to recover damages under the Federal Employers’ Liability Act for the death of defendant’s employee caused by defendant’s negligence, evidence as to the financial resources or condition of the widow or next of kin of the deceased, held to be immaterial.</p> <p>2. Evidence, § 78*—when statements admissible as part of res gestee. In an action to recover damages for death of defendant’s employee while at work on defendant’s railroad, testimony of a brakeman concerning a statement made by him to the engineer of the train just before or at the time the accident to the deceased was happening, calling to the engineer to put his head out of the window and take a signal, held admissible as part of the res gestee of the management of the train before the accident, but to have been inadmissible if such call had been after the accident.</p> <p>3. Master and servant, § 566*—when evidence insufficient to support counts of declaration in action for, injuries while train engaged in interstate commerce. Where a train started from a certain point with cars of goods hilled from without the State, which were disconnected from the train several stations before reaching the place where plaintiff’s intestate was injured, and there was no evidence of any other goods or cars being on the train at that time that were being transported from or to any foreign State, held that there could be no recovery on any count of the declaration, in an action under the Federal Employers’ Liability Act of 1908, to recover damages because of such injuries, which alleged alone that the defendant was engaged in interstate commerce, based on an allegation that defendant was carrying cars or goods from or to some other State.</p> <p>4. Commerce, § 4*—when employee engaged in interstate commerce. The work of taking material to the place where it is to be used to repair and improve an interstate railroad is a part of the work of improvement, and one carrying material to be used in repairing or in keeping in suitable condition an instrumentality of interstate commerce is engaged in such commerce.</p> <p>5. Master and servant, § 98*—what is effect of Federal Employers' Liability Act on State laws. In the matter of the liability of an employer for the death of an employee while engaged in interstate commerce, the Federal Employers’ Liability Act has superseded all State laws.</p> <p>6. Damages, § 21*—when recovery may be had for pain and suffering. An injured person suing for damages, if he recovers, is entitled to compensation for pain and suffering.</p> <p>7. Death, § 32*—when representatives of deceased employee may recover for pecuniary loss and pain and suffering of deceased. Under the Federal Employers’ Liability Act .as amended in 1910, the right of a person injured to recover for pain and suffering is preserved to the representatives of such person who survived the injury in a conscious condition some appreciable length of time, and recovery is allowed such representatives in such case both for pecuniary loss and for conscious pain and suffering endured by the deceased during the period he survived, although it was brief.</p> <p>8. Damages, § 172*—what is proof of pain and suffering. In an action to recover damages for pain and suffering caused by injuries sustained, the pain and suffering may be shown by the acts and natural involuntary expressions of present pain, such as expressions of the features, groans, exclamations, screams, and the like.</p> <p>9. Evidence, § 86*—when statements of party concerning pain are competent. In an action to recover damages for pain and suffering caused by injuries sustained, statements of the party concerning pain are not competent unless made to a physician treating him.</p> <p>10. Master and servant, § 430*—when contributory negligence does not bar recovery under Federal Employers’ Liability Act. In an action under the Federal Employers’ Liability Act to recover damages for injuries sustained and death due thereto, where such injuries and death were the result of the negligence of a coemployee of the deceased while engaged in interstate commerce, held that recovery was allowable, although the negligence of the deceased may have materially contributed to his injuries and would diminish the amount of recovery.</p> <p>11. Instructions, § 38*—propriety of in language of statute. An instruction in the language of a statute is not erroneous.</p> <p>12. Master and servant, § 302a*—when assumed rish no defense under Federal Employers’ Liability Act. Under the Federal Employers’ Liability Act, the defense of assumed risk is expressly eliminated in cases where injury or death results from any defect or insufficiency due to the negligence of the carrier in its cars, engines, appliances, machinery, track, roadbed, or other equipment.</p> <p>13. Master and servant, § 312*—what rislcs assumed, by employee. An employee assumes the ordinary risks and hazards of his occupation and those defects and risks which are known to him or would be discovered by the exercise of reasonable care.</p> <p>14. Master and servant, § 308*—what rislcs not assumed by employee under Federal Employers’ Liability Act.- Under the Federal Employers’ Liability Act, an employee does not assume risks created by the negligence of others or arising oilt of defects in cars or = equipment.</p> <p>15. Master and servant, § 496*—when contributory negligence proximate cause of injury to employee. Contributory negligence is such an act or omission on the part of an employee amounting to a want of ordinary care which, concurring or co-operating with a negligent act of an employer, is the proximate cause or occasion of an injury complained of.</p> <p>16. Master and servant, § 482*—what constitutes contributory negligence of employee. A violation by an employee of the rules of an employer is contributory negligence and not an assumption of risk.</p> <p>17. Appeal and error, § 1241*—when party may not complain of instructions. A party may not be heard to complain of instructions given at his request.</p> <p>18. Master and servant, § 816*—when instruction on damages in action under Federal Employers’ Liability Act not erroneous. In an action under the Federal Employers’ Liability Act to recover damages for injuries sustained and death due thereto, an instruction in the language of the statute requiring that damages be diminished in proportion to the negligence attributable to the employee, held not to be erroneous.</p>

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 269*—what is power of trustee in trust deed as to release of lien. The trustee in a trust deed given to secure the payment of notes has the power as to third parties to release the lien created by such deed so as to reinvest the title in the grantor, even though he does so without the consent of the holder of the indebtedness which such deed was given to secure and in violation of the obligations of the trust.</p> <p>2. Mortgages, § 269*—when trustee in trust deed may release lien created iy deed. The trustee in a. trust deed given to secure the payment of certain notes may release the lien created by such deed even though the indebtedness secured thereby is not due.</p> <p>3. Mortgages, § 1*—what is nature of mortgage securing note. A mortgage securing the payment of a note is but an incident to the debt.</p> <p>4. Mortgages, § 163*—what constitutes equitable transfer. Whatever is sufficient to transfer the title to a debt will also transfer in equity a mortgage given to secure the debt, and the mortgagee will hold the title for the assignee of the debt.</p> <p>5. Mortgages, § 168*—what rights conferred by assignment. The assignment of a mortgage does not convey or transfer the legal ownership, but gives an equitable right only.</p> <p>6. Mortgages, § 207*—when notice to grantor in trust deed necessary. One purchasing notes and a trust deed securing them must give notice to the grantor if he desires to preserve his rights under the trust deed against payments made to the former holder.</p> <p>7. Bills and notes, § 237*—necessity of notice of assignment of note. The assignee of a note is negligent in not giving notice of the assignment.</p> <p>8. Mortgages, § 227*—what is effect of assumption by grantee of mortgage indebtedness. A grantee in a deed assuming therein the payment of a mortgage indebtedness becomes the principal debtor and the prior debtor only a surety.</p> <p>9. Mortgages, § 239*—what is primary fund for payment of mortgage debt. Property subject to a mortgage indebtedness becomes the primary fund for the payment of the debt.</p> <p>10. Mortgages, § 163*—when purchaser of note negligent in not taMng and recording assignment of trust deed. Where a party purchased a note secured by a trust deed and the note was duly assigned and the trust deed delivered to him, held that he was negligent in not taking and recording an assignment also of the trust deed.</p> <p>11. Mortgages, § 245*—when assignee of mortgage protected as to payments made by subsequent purchasers. The rule requiring the assignee of a mortgage securing notes indorsed in blank to give notice, actual or constructive, in order to protect himself against payments by the mortgagor to the mortgagee does not extend to subsequent purchasers of the property who assume and agree to pay the incumbrance, and notwithstanding the assignee has not recorded the assignment or given notice thereof to any one, he is entitled to protection against payments made by the purchasers to the mortgagee in the belief that he still owned the indebtedness.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

<p>Appeal from the Circuit Court of Pulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>1. Chattel mortgages, § 216*—what are rights of indorsee of note secured by chattel mortgage. Under the statute (J. & A. jf 7602), the indorsee of a note before maturity which states on its face that it is secured by a chattel mortgage takes it subject to all defenses existing between the payee and the payor.</p> <p>2. Principal and surety, § 56*—what is effect of judgment against principal and surety. The fact that a judgment is rendered against two makers of a note, one of whom was a surety only for the other, does not change the relationship of the parties to each other.</p> <p>3. Bills and notes, § 177*—what are rights of surety against indorsee. A party signing a note as surety for his comaker is entitled to all the rights of a surety against an indorsee having knowledge of such suretyship.</p> <p>4. Bills and notes, § 431*—when evidence inadmissible to vary terms of note. Evidence tending to show that at the time a certain note sued on was made there was an agreement between the parties that one maker signing as surety for the other should be released from liability when a certain mortgage should subsequently be made by the principal maker of the note, held inadmissible, as such agreement would be inconsistent with the terms of the note and such evidence is an attempt to vary such terms by a previous or contemporaneous verbal agreement.</p> <p>5. Evidence, - § 160*—when evidence of compromise should be excluded. Admissions of a party are never conclusive against him, and when made for the purpose of effecting a compromise of the matter in dispute should be excluded as evidence on the ground of public policy.</p> <p>6. Payment, § 14*—what are rights of creditor and debtor as to application of. A debtor may control the application of voluntary payments made by him, and if he does not direct their application the creditor may.</p> <p>7. Principal and surety, § 60*—when surety may not direct application of payments by principal. A surety has no right to direct the application of voluntary payments made by his principal to the debt for which such surety is liable.</p> <p>8. Chattel mortgages, § 269*—when creditor may apply proceeds of sale to most precarious debt. Where a chattel mortgage does not provide how the proceeds on a sale of the mortgaged property shall be applied, the creditor may apply same to the most precarious debt.</p> <p>9. Chattel mortgages, § 269*—application of proceeds of sale. Proceeds of the sale of mortgaged chattels should be applied to the mortgage debt unless a sufficient legal excuse is shown'for their application otherwise.</p>

<p>Appeal from the Circuit Court of Schuyler county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. George A. Sestee, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Error to the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of Cass county; the Hon. Cut R. Williams, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>1. Intoxicating liquors, § 145*—when sale of liquor as shift or device to evade law against Keeping place open on Sunday question for jury. Under an information charging the defendant with keeping open a tippling house, or place where liquor is sold or given away, on Sunday, in violation of section 259 of the Criminal Code (J. & A. If 3946), where the defendant, claiming to act as agent for his wife, to whom a United States Government wholesale liquor stamp was made out, conducted a business of selling beer in five-gallon kegs and forty-eight bottle cases on land, just outside of anti-saloon territory, occupied by defendant and his wife, which beer was taken from his building where sold to a tent about one hundred feet away erected by him and there drunk by people who congregated there for that purpose, held that this tended to show but a shift or device to evade the law so as to make it a question of fact for the jury whether defendant was guilty.</p> <p>2. Intoxicating liquors, § 161*—when judgment in criminal prosecution for illegal sale erroneous. A judgment, upon conviction under four counts of an information under section 259 of the Criminal Code (J. & A. If 3946), for keeping open a tippling house, or place where liquor was sold, on Sunday, for “$400, being the sum of $100 upon the first, second, fourth and fifth counts in said information,” held to be informal and erroneous in that it was for the gross sum of $400, as there should be a several judgment upon each count.</p> <p>3. Intoxicating liquors, § 161*-—what proper form of judgment for conviction on several counts. Each count of an indictment under section 259 of the Criminal Code (J. & A. If 3946), for keeping open a tippling house, or place where liquor is sold, on Sunday, presents a different offense and the court must assess a fine, upon conviction, under each count as for so many different offenses.</p>

<p>Abstract of the Decision.</p> <p>1. Divorce, § 12*—what constitutes extreme and repeated cruelty. Cruelty, under the divorce statute, means physical acts of violence, bodily harm such as endangers life and limb, such acts as raise a reasonable apprehension of bodily harm and show a state of personal danger incompatible with the marriage state; and bad temper, petulance of manner, rude • language, want of civil attentions, or angry or abusive words are not sufficient grounds for divorce for extreme and repeated cruelty.</p> <p>2. Divorce, § 12*—what does not constitute extreme and, repeated, cruelty. In a suit for divorce on the ground of extreme and repeated cruelty, where the only acts of cruelty shown were nine years apart, one of which was a mere slapping in the face, not producing any bruise, after which the parties continued to live happily together for many years, and the other occurred while complainant was trying to get a stick pin away from defendant, when he turned and knocked her down, apparently not in anger, held, that the court did not err in directing a verdict for the defendant.</p> <p>3. Instructions, § 120*—when properly refused. An instruction which ignores undisputed evidence is properly refused.</p> <p>4. Divorce, § 11*—when consent to separation may he withdrawn. Consent to a separation between a husband and wife may be withdrawn at any time within the two years under the divorce statute as to desertion.</p> <p>5. Appeal and error, § 1560*—when refusal of instruction harms-less error. Refusal to give an instruction as to the credibility of witnesses, held not reversible error in view of other instructions given.</p>

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

<p>Abstract of the Decision.</p> <p>Husband and wife, § 69*—when gift by wife to husband of personalty inferred. Where a wife mingled her separate personal property with that of her husband and the two used and disposed of the combined properties in common, and she by her will disposed only of certain cash on hand belonging solely to herself, no part of which represented the value of the proceeds of any of such personal property in their common use and disposal, held' that the husband did not hold such separate personal property of his wife’s which had been mingled with his own and so used and disposed of by them in common in trust for her, but that a gift from her to him of same would be inferred in the absence of a contrary agreement.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 80*—how forged instrument may he ratified. A forged instrument may be ratified either directly or by implication under certain circumstances.</p> <p>2. Bills and notes, § 80*—when forged instrument deemed ratified. A party can only be held to have ratified a forged instrument when he acted with full knowledge of all the material facts.</p> <p>3. Bills and notes, § 80*—when ratification of forged instrument not implied. Ratification of a forged instrument will never be implied from a doubtful state of facts.</p> <p>4. Estoppel, § 37*—when estoppel in pais created. The doctrine of estoppel in pais is to prevent injuries arising from conduct or declaration which have been acted on in good faith and which would be inequitable to permit the party to retract, and in order to create such estoppel the party estopped must have induced the other party to occupy a position which he would not have occupied but for such acts and declarations, and which also must be such as would ordinarily lead to the result complained of.</p>

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

<p>1. Statutes, § 196*—what considered in ascertaining intention of Legislature. In attempting to ascertain the intention of the Legislature for the purpose of construing the meaning of a statute, a court will have regard to existing circumstances or contemporaneous conditions prevailing at the time of its enactment, the law existing prior to its passage, and the mischief sought to be remedied.</p> <p>2. Animals, § 12*—what is liability at common law for injuries by dogs jointly. At common law separate owners of several dogs will not jointly be liable for damages done jointly by the said several dogs.</p> <p>3. Animals, § 12*—what is liability under statute of owners of dogs jointly doing damage. Under the Act approved February 11, 1853, “providing for the payment of damages done by dogs” (J. & A. HIT 406, 407), the owner of each of several dogs jointly doing damage is liable for the whole amount of the damage.</p>