Volume 205 — Illinois Appellate Court Reports

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

<p>Appeal from the County Court of Hancock county; the Hon. E. W. Dunham, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Appeal from the' Circuit Court of Vermilion county; the Hon.</p> <p>Augustus A. Partlow, 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>Appeal from the County Court of P'iatt county; the Hon. W. A. Doss, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

<p>1. Wills, § 383*—when contingent estate in remainder created. A clause in a will: “I desire that the following named nephews and nieces shall be paid the amounts herein designated, provided they are living at the time of the death of my wife,” held to create a contingent estate in remainder in the nephews and nieces and not a vested estate in remainder.</p> <p>2. Wills, § 495*—when shares of deceased devisees go into residuary fund. Under a will bequeathing certain amounts to certain persons, provided such persons are living at the time of the death of another person, held that if any of such devisees were not alive at the time of the death of the life tenant the shares designed for them would go into the residuary fund and pass to the residuary legatee.</p> <p>3. Wills, § 468*—what is effect of renunciation of will giving a life estate by widow. The only effect of the renunciation by a widow of a will giving her a life estate in the testator’s property on the funds of the estate would be to lessen the residuary estate by the amount of the property she took absolutely.</p> <p>4. Wills, § 395*—when postponed vested legacy accelerated. A postponed vested legacy will be accelerated by the renunciation of the life estate which precedes it.</p> <p>5. Wills, § 395*—when contingent legacy or remainder accelerated. A contingent legacy or remainder will not be accelerated by the renunciation of the life estate which precedes it unless such appears to have been the intention of the testator.</p>

<p>1. Pleading, § 150*—what was purpose of Legislature in passing act relating to affidavits of defense. The purpose of the Legislature in passing in its present form section 55 of the Practice Act (J. & A. T 8592), relating to affidavits of defense as to the whole or a portion of the plaintiff’s demand, and providing that the plaintiff should have judgment for that portion of his demand to which no such affidavit should be filed and that the action should proceed as to the balance of such demand in dispute, was to narrow the issues to he tried and give notice to the^plaintiff what defenses he must be prepared to meet.</p> <p>2. Pleading, § 153*—what are requisites of affidavit of defense to portion of plaintiff’s demand. When a defense is presented, under section-55 of the Practice Act (J. & A. If 8592), providing that where an affidavit of defense is made to a portion of the plaintiff’s demand the action shall proceed as to such portion and that plaintiff shall be entitled to judgment, as by default for the balance of his demand, to only part of plaintiff’s demand, that part must be set out so fully and precisely that the court can determine what amount is admitted to be due and render judgment therefor, and a trial be had as to the contested part of the demand.</p> <p>3. Pleading, § 153*—when affidavit of defense insufficient. Defendant’s affidavit of defense held properly stricken from the files for insufficiency, as it did not purport to present a defense to plaintiff’s entire demand or definitely state what part of the demand was admitted to be just and correct or state facts sufficiently for the court to determine what part of such demand was admitted to be due and what part contested.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>1. Physicians and surgeons, § 8*—when State Board of Health has right to sue for and recover penalties for practicing without certificate. The State Board of Health has the right to sue for and recover the penalties provided in Rev. St. ch. 91, sec. 9 (J. & A. H 7390), relating to persons practicing medicine or treating human ailments without a certificate issued by that .board, and providing that such persons shall forfeit and pay to the People of the State of Illinois for the use of that board certain sums to be recovered in an action of. debt.</p> <p>2. Physicians and subgeons, § 5*—when person is practicing medicine. One who advertises, professes, offers, undertakes or pretends to undertake to diagnose, treat, heal or benefit a patient, regardless of whether that patient is or is not suffering from any actual ailment or disease, and who charges or accepts compensation therefor, is practicing medicine within the meaning of Rev. St. ch. 91, sec. 9 (J. & A. 1f 7390), providing that any person shall be regarded as practicing medicine within the meaning of that statute who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury or deformity of another.</p> <p>3. Physicians and subgeons, § 8*—when evidence sufficient to show that person is practicing medicine. Evidence held sufficient to show that defendant was practicing medicine within the meaning of Rev. St. ch. 91, sec. 2 (J. & A. If 7378), providing that it shall be unlawful for any person to practice medicine in any of its branches without a license so to do from the State Board of Health, and section 9 (J. & A. If 7390), providing that any person shall be regarded as practicing medicine within the meaning of the statute who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury or deformity of another, where the defendant undertook or pretended to diagnose, treat and cure the trouble of his patients by a general formula of diagnosis that “the bones or vertebra of your back are out of their normal or proper position, etc.,” and advertised and assumed or pretended to be able to “place those bones of the back in their normal or proper position,” the result of so doing to be health, such adjustment being or being pretended to be by applying pressure and manipulation with his hands.</p>

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

<p>Error to the Circuit Court of Jersey county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>1. Fraudulent conveyances, § 15*—when transfer within Bulk Sales Act. A transfer by a party of certain office furniture, horses, colts, wagons, trucks, drays, harness, farm machinery, hogs, pigs, growing corn and the like, used or produced either in the dray and transfer business or in the business of farming in which such party had been engaged, held to be within the Bulk Sales Act of 1913, Rev. St. ch. 121a, sec. 1 [Cal. 111. St. Supp. 1916, f 10021(1)].</p> <p>2. Execution, § 92*—when levy may 6e made upon personalty. A sheriff may levy an execution in his hands upon personal property after he has levied the same on real estate and before the real estate is sold under such levy.</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 153*—when determination of weight of evidence is for jury. The evidence as to the claim sued on being conflicting, held that it was the province of the jury to weigh the evidence and pass upon the credibility of the witnesses.</p> <p>2. Bills and notes, § 443*—when evidence sufficient to show failure of consideration. Evidence held sufficient to support the finding in favor of the defendant, in an action on a note claimed in defense to have been without consideration and not to have been delivered, and on a payment by plaintiff to defendant claimed by plaintiff to have been a loan to defendant and by defendant to have been payment of a loan by defendant to plaintiff.</p> <p>3. Assumpsit, action of, § 88*—whqn evidence as to making of loan is admissible. In an action to recover money claimed to have been loaned defendant, where it was claimed in defense that the money was a repayment by plaintiff of a loan to him by defendant, evidence as to the amount of the claimed loan by defendant to plaintiff and other evidence tending to show that such loan had been made, held to be properly admitted as corroborating evidence in support of such defense.</p>

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

<p>Abstract of the Decision.</p> <p>1. Carriers, § 4*—when connecting railroad and transfer company are common carriers. Where the defendant railroad received certain live stock for shipment from a point outside of Chicago to a consignee at the Union Stockyards, Chicago, under an arrangement with another railroad for the cars of defendant to pass over the tracks of the other railroad from Western avenue, Chicago, to unloading chutes at the Union Stockyards at a certain price per car, defendant’s trainman doing the actual work of conducting or transferring the cars from Western avenue to such chutes, and with ■the Union Stockyards & Transit Company for the unloading of such cars at such chutes and delivery to the consignee at a certain price per car, held that such other railroad and the Union Stockyards & Transit Company were common carriers connecting with defendant in such shipment.</p> <p>2. Carriers, § 188*—when connecting railroad and stockyards company are agents of initial carrier. Where the defendant railroad received certain live stock for shipment from a point outside of Chicago to a consignee at the Union Stockyards, Chicago, under an arrangement with another railroad for such cars to pass over the tracks of the other railroad from Western avenue, Chicago, to unloading chutes at said yards at a certain price per car and with the Union Stockyards & Transit Company for unloading such ears at such chutes and delivering them to the consignee at a certain price per car, held that the other railroad and the Union Stockyards & Transit Company were defendant’s agents for the transportation and delivery to the consignee of such cars, for whose acts, if negligently performed, defendant was liable to respond in damages.</p> <p>3. Carriers, § 190*—what is sufficient proof of knowledge of initial carrier t>f its duty to deliver stock to consignee. The fact that the defendant railroad hired and paid the Union Stockyards & Transit Company to unload and deliver to the consignee certain live stock received for shipment by defendant, held to not only prove conclusively that said company was defendant’s agent but to prove that defendant’s own construction of its duty as a common carrier of live stock was that it was obliged to unload and deliver the same to the consignee, in an action to recover damages for failure of defendant to deliver such shipment.</p> <p>4. Carriers, § 188*—when duty of initial carrier of stock fully performed. Where the defendant railroad received certain cars of cattle for shipment from a point outside of Chicago to a consignee at the Union Stockyards, Chicago, and defendant, in its regular course of business, transported such shipments by another railroad from Western avenue, Chicago, to unloading chutes at said yards at a certain price per car, paid by it to such other railroad and also paid the Union Stockyards & Transit Company a certain price per car for unloading and delivering such shipments, held that defendant’s whole duty as a common carrier would not be performed until such shipment had been actually delivered to the consignee.</p> <p>5. Carriers, § 199*—when burden of proof on initial carrier to show lawful excuse for failure to deliver stock. In an action to recover damages for failure of a common carrier to deliver a shipment of live stock, where the defendant’s duty as initial carrier to deliver such shipment and its failure to deliver it to the consignee were established, held, that the defendant had the burden of showing a sufficient lawful excuse for such failure.</p> <p>6. Carriers—what is sufficient excuse for failure to deliver live stock. The fact that a shipment of live stock came from a quarantined territory, held to constitute a justification for the refusal of the carrier transporting such shipment to unload and its failure to deliver same as required by its contract of carriage.</p> <p>7. Animals, § 4*—what not sufficient grounds for destruction of property rights in stock coming from, quarantined territory. A mere rumor, the truth or falsity of which is easy of ascertainment, that a certain shipment of live stock came from quarantined territory, held not enough to justify the destruction of property rights without even an attempt to verify or disprove such rumor, in an action to recover damages for failure of the carrier to deliver such shipment under its contract of carriage.</p> <p>8. Carriers, § 93*—when evidence insufficient to show acceptance of shipment of live stock by shipper. Evidence held insuffi-, cient to show plaintiff’s agent had accepted a certain shipment of live stock, where such agent attempted to secure possession of such live stock but defendant refused to permit it to be unloaded and delivered, in an action by a shipper to recover damages for failure to deliver such shipment.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 410*—when assignee must prove proper assignment of note. In an action to recover on a promissory note, where the defendant filed an affidavit denying assignment of the note to the plaintiff, held that such affidavit made it necessary for plaintiff to prove that the note was duly and properly assigned by the payee.</p> <p>2. Bills and notes—token, authority of officer of corporation payee of note to make assignment must be proved by assignee. Where the payee of a note was a corporation, an affidavit filéd in defense to an action to recover on the, note denying assignment of it, held to destroy every presumption of authority in the officer or agent purporting to make the same, and puts the burden of proving not only the assignment but the authority of the person making it to do so upon the party asserting its validity.</p> <p>3. Bills and notes—when authority of agent to make assignment of note must be proved. Alter assignment of a note is denied by an affidavit, the doctrine of apparent authority of an agent to make it no longer applies, and such authority is a matter of proof.</p> <p>4. Bills and notes, § 406*—what party suing on assigned note required to prove at common law. At common law a party suing on an assigned note, if the general issue was filed, was required ,to prove by a preponderance of the evidence the validity of both the execution and the assignment of it.</p> <p>5. Bills and notes, § 350*—whe'n affidavit denying validity of execution or assignment of note is necessary. Since the enactment in its present form of section 52 of the Practice Act (J. & A. U 8589), relating to denial of the execution or assignment of an instrument, a defendant in an action on a promissory note is not permitted to deny on the trial the validity of either the execution or assignment of the note unless he files an affidavit or a verified plea denying the validity of such execution or assignment.</p> <p>6. Bills and notes, § 406*—what proof necessary where affidavit or verified plea denying execution or assignment of note filed. In an action on a promissory note where an affidavit or verified plea is filed denying the execution or the assignment of the note, the same proof of execution or of assignment must be made as in a contested case at the common law.</p> <p>7. Bills and notes, § 406*—what is proper practice where no affidavit or verified plea is filed denying execution or assignment of note. In an action on a promissory note where no affidavit or verified plea is filed denying the execution or the assignment of the note, the same practice prevails as at common law when no defense was made to such an action, except as such rule is varied by section 59 of the Negotiable Instruments Act (J. & A. K 7698), providing that the holder of a negotiable instrument is deemed prima facie a holder in due course and that when the title of one who negotiated the instrument is shown to be defective the burden is on the holder to prove that he or some person under whom he claims acquired title in due course.</p> <p>8. Bells and notes, § 410*—when rule that burden is upon holder to show acquirement of title in due course is inapplicable. Where the title of any one who negotiated a negotiable instrument is shown to be defective, the rule that the burden is upon the holder to prove that he or some person under whom he claims acquired titlé in due course does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.</p> <p>9. Bills and notes, § 406*—what is rule as to burden of proof where holder makes proof of assignment. When the course established in section 52 of the Practice Act (J. & A. H 8589), providing how a party must proceed to require the holder of a note to make proof of its due and proper assignment, is pursued, the trial proceeds the same and the order and burden of proof are the same as when those same tacts were contested at the common law.</p> <p>10. Bills and notes—what does not constitute indorsement. An indorsement by the “Central Route and Rating Agency” on a note made payable to the “Central Rate and Routing Agency,”' held not to be an indorsement by the payee of the note in the absence of proof that the two agencies were the same legal entity.</p> <p>11. Bills and notes, § 446*—what proof necessary to make assigned note evidence of debt to assignee. In an action on an assigned note, where the validity of the assignment was denied by affidavit, and the indorsement purported to be signed by an agent, such note held to be, without proof of the agency of the party so signing the indorsement, no evidence of a debt of the defendant to the plaintiff and inadmissible.</p> <p>12. Bills and notes, § 319*—when holder of note may sue thereon in his own name. Under section 51 of the Negotiable Instruments Act (J. & A. K 7690), providing that the holder of a negotiable instrument may sue thereon in his own name, any holder in whose hands any instrument in writing may be found may not sue thereon regardless of whether such instrument is negotiable on delivery or not.</p> <p>13. Bills and notes, § 319*—what was purpose of statute allowing holder of negotiable instrument to sue thereon in his own name. The manifest intention of section 51 of the Negotiable Instruments Act (J. & A. T[ 7690), providing that the holder of a negotiable instrument may sue thereon in his own name, was to have it apply to the holder in due course of instruments that because of the way they were originally written, or because of a proper indorsement thereon, were negotiable on delivery.</p> <p>14. Bills and notes, § 412*—when assignee of note required to prove good faith of assignment. The filing of an affidavit or verified plea denying the validity of an assignment of negotiable paper sued on challenges, among other things, the right of the holder of it to sue it in his own name, and puts him to proof of the bona fldes of the assignment through which he claims the right to sue.</p>

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

<p>Abstract of the Decision.</p> <p>1. Bbokbbs, § 88*—when evidence sufficient to sustain verdict ■for defendant in action for commissions. Evidence held sufficient to sustain a verdict for the defendant, in an action to recover commissions claimed on a sale of defendant’s real estate.</p> <p>2. Tbial, § 78*—when evidence is not proper in rebuttal. In an action to recover commissions claimed on a sale of real estate, where one of the plaintiffs testified in chief to a certain conversation between him and defendant, and the defendant testified that he had not met the witness at the time and place testified to by the latter, the testimony of another witness offered by the plaintiffs in rebuttal that he saw the former witness and defendant at said time and place, held to be competent in chief but properly excluded in rebuttal.</p> <p>3. Appeal and error, § 1565*—when modification of instruction not prejudicial error. In an action to recover commissions claimed on a sale of real estate, modification of an instruction offered by plaintiffs by adding the words “and sale” after the word “purchaser” in the clause “and that their services were instrumental in securing a purchaser and sale,” held to be insignificant and not prejudicial.</p> <p>4. Appeal and error, § 1526*—when instructions not reversibly erroneous. Instructions, even if wrong, held not reversibly erroneous where the verdict and judgment thoroughly comported with the manifest justice of the case.</p>

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

<p>1. Quo warranto, § 26*—what is discretion of State’s Attorney as to presenting petition. Where only public rights are involved, the State’s Attorney has an arbitrary discretion as to presenting or refusing to present a petition for quo warranto.</p> <p>2. Quo warranto—what are requisites of affidavit where private rights involved. Where private rights are partly or solely involved in a petition for quo warranto, the affidavit in support of such petition must be made on knowledge and not on information and belief, and must be full, complete and positive, and so drawn that perjury may be assigned thereon if its statements be untrue.</p> <p>3. Quo warranto—when affidavit in support of petition for quo warranto insufficient. A notary’s certificate that an affiant “being first duly sworn upon his oath, deposes and says that he has heard read the above affidavit and knows the contents thereof and that the matters and facts therein contained are true except as to those matters and things stated on his information and belief and as to those he believes them to be true,” held to be insufficient to sustain a petition for quo warranto, as no one could tell what is stated on information and belief and what on the affiant’s own knowledge, and as perjury could not be assigned on the affidavit, if untrue.</p> <p>4. Quo warranto—when affidavit in support of petition for quo warranto sufficient. Where a notary’s certificate that an affiant had, on being duly sworn, stated on oath that he had heard read the affidavit and knew the contents thereof and that the matters and facts therein contained were true “except as to those matters and things therein stated to be on information and belief,” etc., held that it was sufficient to sustain a petition for quo warranto, as by reference to the body of the affidavit the things so stated could have been easily ascertained.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the April term, 1917. Transferred to Supreme Court.</p>

<p>1. Appeal and error, § 1733*—when prior decision of Appellate Court is conclusive as to right of stockholder to examine hooks of corporation. On a petition by a stockholder of a corporation for mandamus to compel the corporation and its officers to admit petitioner to its principal office and place of business to examine its records and books of account, where the defendants’ answer set up a former adjudication wherein an order was entered for one complete examination by petitioner of the corporation’s financial affairs, held that a demurrer to the answer was properly sustained, as petitioner had by such examination exhausted his rights under such order.</p> <p>2. Corporations, § 178*—when improper motives of stockholder are not har to right of inspection of hooks. The existence of improper motives in a stockholder of a corporation seeking mandamus to compel the corporation and its officers to admit him to an examination of its records and books of account is no bar to the exercise of his rights as a stockholder.</p> <p>3. Corporations, § 178*—what records and hooks stockholder not permitted to examine. On petition by a stockholder in a medical company for mandamus to compel the company and its officers to allow him to make an examination of its records and books of account, held that the order for mandamus should except from its operation the report register of salesmen, the correspondence and contracts with salesmen, and the formulas and secret processes of manufacturing preparations sold by the company.</p> <p>4. Corporations, § 178*—when stockholder permitted to examine records and hooks. An order for mandamus to compel a corporation and its officers to allow a stockholder to make an examination of its records and books of account should restrict such examination to business hours.</p> <p>5. Corporations, § 178*—when right of stockholder to examine records and hooks ceases. An order for mandamus to compel a corporation and its officers to allow a stockholder to make an examination of its records and books of account should provide that it shall cease to be effective whenever the stockholder ceases to be a stockholder of the corporation.</p>

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

<p>1. Intoxicating liquors, § 127*—when refusal of court to require till of particulars is not error. On a prosecution for selling intoxicating liquors in anti-saloon territory, the refusal of the court to require a bill of particulars as to the kinds and brands of such liquors alleged to have been sold, by whom sold, whether by principal or agent, and further describing the premises where they were sold, held not erroneous.</p> <p>2. Indictment and information, § 45*—when State required to furnish till of particulars. The question whether the State should be required to furnish a bill of particulars and the character of such bill, in a criminal prosecution, held to rest in the sound legal discretion of the trial court.</p> <p>3. Criminal law, § 495*—when decision of court in refusing to require till of particulars not disturted. Refusal of a trial court to require a bill of particulars in a criminal prosecution will not be disturbed unless it appears the defendant could not properly prepare his defense without such bill or was injured by the failure to furnish it.</p> <p>4. Continuance, § 71*—when motion of defendant for in criminal case properly denied. Where the defendant in a criminal prosecution for selling intoxicating liquors in anti-saloon territory did not ask for a bill of particulars until the time of trial and a month or more after he had been in court, held that his motion for a continuance to allow him opportunity to see and investigate the witnesses whose names were then furnished him by such bill and who lived in other cities was properly denied.</p> <p>5. Intoxicating liquors—who are legal voters at election. Women are legal voters at an election under the act providing for anti-saloon territory.</p> <p>6. Pleading, § 432*—what is office of a videlicet. The office of a videlicet is to indicate that the pleader does not undertake to prove the precise circumstances alleged.</p> <p>7. Pleading, § 432*—when rule as to videlicet inapplicable. The rule that a videlicet indicates the pleader does not undertake to prove the precise circumstances so alleged does not apply to a videlicet which is material to the charge.</p> <p>8. Intoxicating liquors, § 117*—when date of sale of may be alleged under a videlicet. In a prosecution for selling intoxicating liquors in anti-saloon territory, the date of a sale is not material, provided it was after the date the territory became anti-saloon and before the date of filing the information, and may be alleged under a videlicet.</p> <p>9. Witnesses, § 267*—what weight should be given to testimony of a detective. The testimony of a detective is to be treated like that of any other witness, and his interest, if any, in securing compensation from and success for his employer is to be considered the same as the interest of any other witness, and the jury are judges of whether he shall be believed.</p> <p>10. Intoxicating liquors, § 150*—when proof of intoxicating quality unnecessary. Proof that the defendant sold spirituous, vinous or malt liquors is sufficient to sustain a. conviction under the anti-saloon law without proving their intoxicating quality.</p> <p>11. Intoxicating liquors, § 150*—when proof of intoxicating quality necessary. To sustain a conviction under the anti-saloon law for selling liquors not named in the law there must be proof of their intoxicating quality.</p> <p>12. Intoxicating liquors—what is question involved in prosecution for sale of malt liquors. If a statute forbids the sale of malt liquors, it is only necessary in a prosecution thereunder, to determine whether the liquors sold were malt.</p> <p>13. Intoxicating liquors, § 129*—what judicial notice taken of. Courts take judicial notice in a criminal case that whisky is a spirituous liquor.</p> <p>14. Intoxicating liquors, § 144*—when witnesses competent to testify as to quality of intoxicating liquor. Certain witnesses held competent to testify whether certain liquors drunk hy them were intoxicating liquors or malt liquors or whisky, where their testimony showed they could tell the character and quality of what they drank by drinking it.</p> <p>15. Intoxicating liquors, § 145*—when intoxicating quality of is question for jury. Where the evidence was conflicting in a criminal case as to whether certain liquors sold by defendants and drunk by a certain witness were intoxicating or malt or whisky, held that the question was for the jury.</p> <p>16. Intoxicating liquors, § 131*—when evidence of lack of knowledge of intoxicating quality hy seller is incompetent. In a prosecution for selling intoxicating liquors ■ in anti-saloon territory, evidence tending to show the defendant did not know the liquors sold by him were intoxicating, held not competent, as in cases of this character the defendant’s intention is immaterial.</p> <p>17. Intoxicating liquors, § 112*—when former prosecution no defense. A conviction for violation of a city ordinance as to selling intoxicating liquors, held to be no defense to a prosecution for violation of the anti-saloon law.</p> <p>18. Criminal law, § 452*—what must appear in hill of exceptions. In the absence of an order of court appearing in the record of the court that the jury in a case were to be kept together during trial, held that fact could only be shown, if at all on review, by the certificate of the court in the bill of exceptions.</p> <p>19. Criminal law, § 444*—^what must appear in hill of exceptions. What was done by the court in a criminal case must be shown by the bill of exceptions containing a statement by the trial judge to that effect, and cannot be shown by an affidavit, but such affidavit must be disregarded.</p> <p>20. Criminal law, § 109*—what is nature of offense of selling liquor in anti-saloon territory. Violation of the statute relating to selling intoxicating liquor in anti-saloon territory is a misdemeanor merely.</p> <p>21. Criminal law, § 321*—when jury may separate. In misdemeanors it is not error for the jury to separate.</p> <p>22. Intoxicating liquors, § 150*—when evidence sufficient to sustain conviction for illegal sale. In a prosecution for selling intoxicating liquors in anti-saloon territory, evidence held to make a case under the twenty-four counts of the information.</p> <p>23. Intoxicating liquobs, § 161*—when judgment excessive for illegal sale in anti-saloon territory. Pines of $75 on each of twenty-two counts and $100 on each of two counts of an information for violation of the statute relating to selling intoxicating liquors in anti-saloon territory, held, to be excessive, where the information was filed soon after that law went into force in that territory and there was no direct proof of any sales to any residents of the territory or other than to two detectives resident elsewhere.</p> <p>24. Intoxicating liquobs, § 161*—when fines reduced and judgment modified. Where the fines assessed for violations of the statute for selling intoxicating liquors in anti-saloon territory were excessive, held that such fines should be reduced and judgment modified accordingly.</p>

<p>Abstract of the Decision.</p> <p>Intoxicating liquors, § 147*—when evidence sufficient to sustain conviction. The evidence held to sustain a conviction under the anti-saloon law for selling cider and buck, proved to be intoxicating.</p>

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

<p>1. Tbial, § 195*—when instruction to find for defendant is properly refused. An instruction to find for the defendant must be refused where there is evidence fairly tending to make a case for the plaintiff, even if the evidence is such that, if a verdict was returned for the plaintiff, the court would feel bound to grant a new trial.</p> <p>2. Appeal and error, § 1735*—when former decision not controlling on second appeal. Where a former judgment in a personal injury case was reversed on the ground that there was evidence fairly tending to make a case for the plaintiff and that the court was not warranted in directing a verdict for the defendant, and, on appeal from a judgment in favor of plaintiff in the second trial, it was claimed that such former decision was decisive, held that such former decision did not determine that a weighing of the evidence on a motion for a new trial or on an appeal would support the verdict, and that therefore the merits must be considered on the second appeal.</p> <p>3. Municipal corporations, § 1098*—when evidence sufficient to sustain finding that automobile ran over material in street. In an action against a city for death caused by plaintiff’s intestate being ’thrown from an automobile which struck something while running along a street in the nighttime, where the plaintiff claimed that the automobile struck a pile of building material contained in the street, and the defendant claimed that the driver ran against the curb and thereby produced the accident, and did not run over the pile of material, evidence held sufficient to sustain the finding that the automobile ran over the material.</p> <p>4. Municipal corporations, § 1098*—what constitutes prima facie case of negligence due to allowing .building material on street. In an action against a city for death caused by plaintiff’s intestate being thrown from an automobile which in the nighttime struck against a pile of building material in a street, where it appeared that the material had been in the street for an unreasonable length of time, and that a considerable time before the accident in question the city was notified that it was dangerous to have the pile there at night without danger signals on it, and that the proper officers had promised to have that attended to, but nothing was done, held that the jury could reasonably find that it was negligence for the city to have the material in the street at the time of the-accident, and that plaintiff had therefore made a prima facie case.</p> <p>5. Appeal and error, § 1265*-—when presumed that, jury found against defendant as to contributory negligence of occupant of automobile. In an action against a city for death caused by plaintiff’s intestate being thrown from an automobile in which he was being driven, upon its striking a pile of material in a street, where the accident occurred about half an hour after sundown, and the lamps on the automobile were not lighted, and the defendant claimed that the failure to light up was in violation of section 4 of the Motor Vehicle Act of 1911 (J. & A. If 10004), requiring motor vehicles to carry lamps from sunset to one hour before sunrise; and that such negligence of the driver was also attributable to the deceased, who was aware that the lights were not lit, held that it was not clear from the evidence that the failure to have lights on the automobile contributed to the accident, and as the instructions were not in the abstract and no complaint was made concerning them, it must be presumed that proper instructions were given concerning the contributory negligence of the deceased, and that the jury determined that fact against the defendant.</p> <p>6. Municipal cobpobations, § 1098*—when evidence in action against city sufficient to sustain finding for plaintiff as to speed of automobile. In an action against a city for death caused by an automobile in which deceased was riding striking a pile of material in a street, where'the evidence was conflicting as to whether the speed of the automobile exceeded the limit of fiften miles per hour as fixed by section 10 of the Motor Vehicle Act (J. & A. If 10010), and it appeared that the blood upon the pavement furthest from the material was seventy-five to eighty-two feet therefrom, and it was claimed that this required the jury to' find that the speed greatly exceeded fifteen miles per hour, but there was the positive evidence of' several witnesses that the speed was less than fifteen miles per hour, evidence held sufficient to sustain a finding for plaintiff as to the speed of the automobile.</p> <p>7. Negligence, § 112*—when negligence of driver of vehicle not bar to recovery by passenger. Negligence of the driver of a vehicle does not usually bar recovery against a third person by a passenger who has no control over the driver.</p>

<p>Abstract of the Decision.</p> <p>1. Wills, § 20*—what are not insane delusions. In proceedings to set aside a will where it was claimed that the unsoundness of mind of the testator was manifested by his search for gold or coal on his farm, and that his belief that gold could be found in paying quantities was a delusion resulting from an unsound state of mind, and it appeared that the notions which the testator had concerning the probability of finding gold or coal were not purely imaginative but had some basis in fact, held that such ideas of the testator were conclusions and not delusions.</p> <p>2. Wills, § 20*—what constitutes a delusion. In proceedings to set aside a will where it was claimed that the testator suffered from delusions resulting from an unsound mind, held that a delusion is not a deduction from facts, hut something purely imaginative, a figment of the brain.</p> <p>3. Wills, § 20*—what are not delusions. Where the notions of a testator charged with suffering from delusions resulting from an unsound state of mind are based upon some sort of evidence, however insufficient, such notions are deemed conclusions and not delusions.</p> <p>4. Wills, § 20*—when existence of insane delusions not shown. An insane delusion is not established when the court is able to understand how a person situated as the testator was might have believed all that 'the evidence shows that he did believe, and still have been in full possession of his senses.</p> <p>5. Wills, § 20*—what does not constitute a delusion invalidating will. Where a testator has actual grounds for suspicion of the existence of something in which he believes, though in fact not well founded and disbelieved by others, a misapprehension of the fact is not a matter of delusion which will invalidate his will.</p> <p>6. Wills, § 30*—who has burden of proof as to sanity of testator. In the contest of a will upon the question of testamentary capacity, the burden of proving the sanity of the testator is in the first instance on the proponents, but after a prima facie case has been made out by the testimony of the subscribing witnesses, the legal presumption is in favor of sanity, and the burden of the whole case rests upon the contestants.</p> <p>7. Wills, § 19*—when senile dementia does not constitute mental incapacity to make will. While senile dem,entia is a weakening condition of the mind resulting from old age and bringing about a diminution of the mental faculties, it does not necessarily result in mental incapacity to make a will.</p> <p>8. Wills, § 19*—when evidence insufficient to show mental incapacity to make ‘Will. In a will contest where expert witnesses testified that the testator had senile dementia on a certain date and that he was so afflicted four months previous, when the will was made, but did not testify that such senile dementia which the testator may have had during the month the will was made was of such a character as to affect his testamentary capacity, evidence held insufficient to show mental incapacity to make a will.</p>

<p>Error to the County Court of Boone county; the Hon. William C. De Wolf, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Statutes, § 196*—how construed. Statutes are to bé construed with reference to the purposes for which they are enacted.</p> <p>2. Mines and minerals—when mine operator liable for injury caused by falling of top of cage. In an action against a mine operator for personal injuries sustained by a miner while he was on a cage used in a coal mine for hoisting the miners, where it appeared that there was an opening in the top of the cage, that the door to cover this opening was standing upon its hinges, that the plaintiff, while hurriedly getting into the cage and reaching up for a handhold to steady himself, grasped the -edge of this open place, and that as he did so the said door fell and crushed his fingers, and plaintiff contended that the keeping of the door open was in violation of that portion of the statute requiring .such cages to be furnished with a sheet metal covering, held that the language of the statute did not indicate that its sole purpose was to protect miners who rode in cages from falling objects, and that it was, in effect, violated because at the time of the injury the cage was not in the condition in which the statute contemplated it should be, by reason of the failure to cover up the opening in the top of the cage.</p> <p>3. Appeal and error, § 1540*—when instructions not limiting negligence to that charged in declaration not reversibly erroneous. Where, in an action to recover for injuries sustained by a miner while in a cage in a coal mine, certain instructions given for the plaintiff were subject to the criticism that they permitted the jury to find for the plaintiff if the injury was caused by negligence in failing to provide a safe cage for plaintiff to ride in, without limiting such negligence to that charged in the declaration, held that as there was no evidence of negligence other than that charged, the instructions could not have harmed the defendant and the error was not sufficient to reverse.</p> <p>4. Mines and minerals—what is purpose of statute requiring metal covers on cages. In an action by a miner for injuries sustained in a coal mine through the falling of a door, standing upright on top of the cage in which the plaintiff was riding, failing on his hands while he had hold of the edge of an opening on the top of the cage, where the plaintiff claimed that such opening constituted a violation of that part of the Mines and Mining Act requiring cages used in the shafts for hoisting and lowering workmen into the coal mine to be furnished with a sheet metal cover, and the defendant claimed that tte only purpose of the statute was to protect persons in the cage from falling objects, held that the protection of persons against falling objects was the test of the adequacy of the covering rather than its sole purpose, and that the obvious meaning of the statute was, not only that such cages should be equipped with metal covers, but also that they should be in use as such when the cages were operated for hoisting miners.</p> <p>5. Instruction's, § 137*—when properly refused. Instructions stating that the jury must make their finding under their oaths concerning a certain feature of a case are properly refused.</p> <p>6. Mikes and minerals, § 186*—when instruction in action by miner for injuries from falling of top of cage is erroneous. In an action for injuries sustained by a miner in a coal mine, where violation of a statute was involved and the plaintiff also charged common-law negligence, and defendant claimed that the only purpose of the said statute was to protect persons who were in a cage from falling objects, and that plaintiff was not entitled to recover because he was not injured by a falling object, held that an instruction practically directing a verdict for the defendant in case they found that the injury was not caused by a falling object was properly refused, as it limited the right of recovery to injuries resulting from a violation of the statute, and ignored the plaintiff’s right to recover if there was sufficient evidence under the counts charging common-law negligence.</p> <p>7. Instructions, § 137*—when properly refused. An instruction leaving the jury to determine whether under the evidence there was a violation of a statute as a matter of law is properly refused.</p>

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

<p>Appeal from the Circuit Court of Knox county; the Hon. Geobge W. Thompson, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Appeal from the City Court of Spring Valley; the Hon. W. H. Hawthorne, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

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

<p>Abstract of the Becision.</p> <p>1. Injunction, § 384*—when merits of case not passed on. The merits of the case are not passed on in considering the propriety of granting or dissolving a preliminary injunction.</p> <p>2. Injunction, § 11*—what is important consideration in deter‘mining propriety of granting or dissolving preliminary injunction. In considering the propriety of granting or dissolving a preliminary injunction, an important inquiry is the relative inconvenience to be caused the parties if on final adjudication it appeared that the court should not have entered the order.</p> <p>3. Injunction, § 177*—when allegations of fact insufficient. Allegations of fact relied on in support of a bill for injunction should rest on clear averments and not on inference.</p> <p>4. Injunction, § 384*—when assignments of error as granting injunction disregarded; Where, on an application for an interlocutory injunction to restrain an assignee of a note charged with notice of its fraudulent character from obtaining possession of such note while held by a hank for collection, a temporary injunction issued without notice and the prayer and order for appeal were only from the order denying the motion to dissolve, held that assignments of error directed to alleged error in granting the injunction would be disregarded.</p> <p>5. Injunction, § 50*—when order refusing to dissolve temporary injunction against obtaining possession of note by assignee not disturbed. On an application to restrain the defendant, as assignee of a note charged with notice of its fraudulent character, from obtaining possession of such note, where It was contended that the note having been purchased before maturity and past due when the bill was filed, a court of equity would not interfere because the defendant could not cut off defenses by an assignment of the note, held that the order refusing to dissolve the injunction should not he disturbed.</p> <p>6. Injunction, § 11*—when order refusing to dissolve temporary injunction not disturbed. Where, on an application for a temporary injunction to restrain the collection of a note by an assignee charged with notice of its fraudulent character, it appeared that the defendant would not be deprived of any right while the note was im-, pounded, while on the other hand the complainant might he put to loss if the defendant were permitted to get possession of the note, held that the order refusing to dissolve the injunction should not he disturbed.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 98*—when federal law controlling in action for personal injuries. In actions by an employee against the employer for personal injuries, where both are engaged in interstate commerce, the federal statute must be applied.</p> <p>2. Master and servant, § 302*—when defense of assumed risk not excluded. In an action against an interstate railroad where it is not claimed that any violation of a federal statute enacted for the safety of employees contributed to the injury, the defense of assumed risk is not excluded.</p> <p>3. New trial, § 109*—what considered on motion for. Although the trial court could not under the evidence direct a verdict for the defendant on the ground that such evidence would not sustain a verdiet for the plaintiff, that question is before the court on a motion for a new trial.</p> <p>4. Instructions, § 135*—when should he offered. Where a defendant fears that an instruction which informs the jury as to the charges in the declaration, without stating that those charges were denied by the defendant, is misleading, he can protect himself by offering an instruction to that effect.</p> <p>5. Master and servant, § 206*—when railroad engaged in interstate commerce liable for negligence of fellow-servant of employee. In an action for personal injuries sustained by a railroad employee while engaged in interstate commerce, where the plaintiff, while pulling a spike, was thrown from a bridge as a result of the alleged negligent act of a fellow-servant, and the plaintiff claimed that he did not assume the risk of the negligence of such fellow-servant, held that the defendant was not liable in the absence of affirmative showing that such fellow-servant was guilty of negligence which was the proximate cause of the injury.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, $ 260*—when lien against property of owner of rented premises for judgment against saloon keeper enforceable. The lien provided by section 10 of the Dramshop Act (J. & A. f 4610), subjecting premises rented for saloon purposes to the payment of a judgment obtained against the saloon keeper under section 9 of the Act (J. & A. If 4609), is enforceable in equity, as the proceeding is not one taken to enforce a penalty.</p> <p>2. Intoxicating liquors, § 260*—when cause of action to subject property of saloon keeper to payment of judgment accrues. In a, chancery proceeding to subject premises rented for saloon purposes to the payment of a judgment against the saloon keeper, as provided in section 10 of the Dramshop Act (J. & A. If 4610), where it was contended that the proceeding, being one to enforce a penalty, was barred by the Two-Year Statute of Limitations, which began to run from the time the cause of action accrued against the saloon keeper, held that the cause of action against the property of the defendants did not accrue under said section until after the judgment had been obtained in the common-law suit, as the causes of action were distinct</p> <p>3. Intoxicating liquobs, § 260*—what are considered as adjudicated matters in equity proceedings to subject rented saloon premises to judgment against saloon keeper. In equity proceedings to subject premises rented for saloon purposes to the payment of a judgment against the saloon keeper, as provided in section 10 of the Dramshop Act (J. & A. T 4610), the facts as to sales of liquor and consequent damages to the complainant are considered adjudicated in the common-law suit, and cannot be controverted in the equity suit.</p> <p>4. Intoxicating iiqttobs, § 260*—what must be proved in equity proceedings to subject rented saloon premises to judgment against saloon keeper. In equity proceedings to subject premises rented for saloon purposes to the payment of a judgment against the saloon keeper, as provided in section 10 of the Dramshop Act (J. & A. 1f 4610), the proof must show that the saloon keeper was selling intoxicating liquor in the premises of the owner at the time in question.</p> <p>5. Intoxicating liquors, § 260*—when decree in equity proceedings to subject premises rented for saloon purposes to judgment against saloon keeper is erroneous. In equity proceedings to subject premises rented for saloon purposes to the payment of a judgment against the saloon keeper, as provided by section 10 of the Dramshop Act (J. & A. H 4610), where the holder of a trust deed was made a party, and the decree provided for a sale subject to the lien “for the payment of so much money as may be unpaid on the note secured thereby,” held that such decree improperly left the holders of the incumbrance without remedy as to any lien provided in case the trustee should be compelled to pay taxes, expenses of foreclosure and other sums secured or provided in the trust deed.</p>

<p>1. Carriers, § 428*—when passenger riding on platform, guilty of contributory negligence. In an action to recover for the death of a passenger who, while standing on the platform of an interurban car going at the rate of about thirty miles per hour, in some way fell through an opening left by an open vestibule and trapdoors as the car approached the station at which the deceased was to alight, where it appeared that there was room inside the car and there was a printed notice posted in the vestibule informing passengers that they were not allowed to ride on the platform or steps, held that plaintiffs intestate was guilty of contributory negligence.</p> <p>2. Carriers, § 386*—when not guilty of negligence in leaving trapdoors of car open. In an action to recover for the death of a passenger who, while standing on the platform of an interurban car going at the rate of thirty miles per hour, in some way fell through an opening left by open trapdoors as the train was approaching the station at which the deceased was to alight, where it appeared that there was room inside the car and a notice was posted in the vestibule informing passengers that they were not permitted to stand on the platform or steps, held that the defendant was not guilty of negligence.</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 199*—when direction of verdict improper. Where the evidence is conflicting, it is improper for the trial court to direct a verdict, as it could not do so without weighing such evidence.</p> <p>2. New trial, § 109*—what considered on motion for. On a motion for new trial, the court is required to consider the weight of conflicting evidence and grant the motion, if in its opinion the verdict was manifestly against the weight of the evidence.</p> <p>3. Master and servant, § 84*—when evidence insufficient to sustain verdict for plaintiff in action to recover commissions. In an action to recover commissions 'under a contract of employment providing for a weekly salary, and also commissions which were to be due and payable at the end of the employer’s fiscal year, where it appeared that before the expiration of the year the plaintiff quit because he was offered a better position elsewhere, and three witnesses for the defendant testified that the right to commissions depended upon plaintiff’s working for the fiscal year, as against the plaintiff alone who testified that his commissions were not made dependent on his working for the time specified, held that the verdict for the plaintiff was manifestly contrary to the evidence.</p> <p>4. Master and servant, § 66*—when employee entitled to commissions on sales. Where, under a contract of employment an employee is to receive a certain commission upon sales made by him payable at the end of the employer’s fiscal year, and the duration of the employment is not fixed, the fact that the employee quits before the expiration of the fiscal year does not of itself bar him from recovering commissions, but if the contract is to continue for the year, the employee cannot recover unless he fully performs his contract for the full term for which he was hired.</p> <p>5. Evidence, § 476*—when testimony of one witness not to he given greater weight than that of opposing witnesses. In an action for the recovery of commissions by an employee where three witnesses, as against the plaintiff alone, testified that the payment of such commissions was made dependent upon the employee working for the defendant for a time specified, and it appeared that the employee quit before the expiration of such period, held that although the number of witnesses alone did not control, it would be unreasonable that the testimony of the plaintiff alone should be allowed to outweigh that of the three witnesses to the contrary.</p> <p>6. Appeal and error, § 1805*—when case reversed without remanding. Where a verdict is contrary to the weight of evidence and another trial will not result in the production of different evidence, the case will be reversed on appeal without remanding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Fraud, § 59*—What are prerequisites to relief against contract on ground of. Equity will not grant relief against a contract on the ground of fraud unless such contract is at once repudiated on the discovery of the fraud and a tender to return what has been received is made.</p> <p>2. Cancellation of instruments, § 39*—when dismissal of hill and cross-hill proper. In, a suit in equity where it appeared that the defendant, as practically sole owner'of the stock in a corporation carrying on a dry goods business, sold certain of the shares to the complainant, and the latter, who was an experienced merchant, entered the business and after about eight months the parties entered into another contract pursuant to which the complainant made a further purchase of stock which was to be paid for in instalments, and, after having made a number of payments under the second contract, the complainant discovered that the defendant had concealed the fact that he was indebted to the corporation in a large sum, and complainant prayed that the collection of the notes be enjoined and the notes be delivered up for cancellation, but failed to offer to return the stock, and defendant filed a cross-bill alleging that the consideration for the second purchase was payment for the stock and also the release of his indebtedness, held that the action of the chancellor in dismissing both bills for want of equity was proper.</p> <p>3. Equity, § 254*—when amendment to hill properly refused. An amendment to a bill offered after the expiration of more than a year from the filing of the answer, and eight months after a reference to the master to report the testimony, and over a month after the case had been heard by the court and taken under advisement, and where the proposed amendment tendered new and different issues from those which had been tried and were about to be determined, held properly refused.</p> <p>4. Cancellation op instruments, § 26*—when relief denied on bill and cross-bill because of laches. In a suit in equity where the complainant in the original bill sought relief from a contract for the purchase of stock, on the ground of fraudulent concealment of a debt which the defendant owed to the corporation, and the defendant in the original bill sought by cross-bill to enforce an alleged agreement for the release of such debt, held that both parties were negligent and had slept on their rights, and neither was entitled to relief.</p>

<p>Abstract of the Decision.</p> <p>1. , Negligence, § 188*—when evidence sufficient to show lacK of Knowledge of danger of explosion from hot water boiler by janitress. In an action hy a janitress against her employer for damages for personal injuries received through an explosion in a hot water boiler which she was operating, where it appeared that the plaintiff knew of some defect in the heater, but did not know of the danger, held that the jury were warranted in finding that plaintiff did not know and was not charged with knowledge of the danger from whatever defect of the heater she knew of.</p> <p>2. Appeal and error, § 1321*—when presumed that jury found that accident occurred as claimed by plaintiff. In an action by a janitress against the owner of a hot water heater for personal injuries received through an explosion of the heater in the building in which plaintiff was employed, where it appeared that the plaintiff had looked after the heater for some time, and knew that the pilot light had theretofore sucked out when a faucet was quickly closed, and. at the time of the accident plaintiff was waiting to turn off the gas if the light should again suck out while a party whom she had let upstairs was using the hot water, and plaintiff claimed that the explosion was caused by the negligence of the defendant in not cleaning the chimney, etc., and the defense was that the explosion was caused by plaintiff’s negligent act in failing to light the pilot until after a faucet had been opened by the party whom she had let upstairs, held that it must be assumed that the jury found that the accident occurred as claimed by the plaintiff.</p> <p>3. Negligence, § 17*—when duty lies upon owner to put in repair heater which he is attempting to sell to owner of building. In an action by a janitress against her employer for personal injuries received through an explosion in a hot water heater contained in a building, where the defendant was the owner of the heater and had notice of its defective condition and defendant claimed that it was endeavoring to sell the heater to the owner of the building as a secondhand article, and that therefore the transaction was a bailment for the mutual benefit of the defendant and the owner, and there was no implied warranty that the heater was fit to use, and no duty rested on the defendant to put it in order, held that as the defendant was undertaking to sell the heater and as demonstrations were being made, and the defendant had notice of defects in the heater, and also knew that plaintiff would operate the heater, it was the duty of the defendant to put the same in order.</p>

<p>Appeal from the Circuit Court of Peoria 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. Infants, § 28*—when infant guilty of laches in commencing suit after reaching majority. In a suit in equity against a former master in chancery to recover the proportionate part of the proceeds of a partition sale to which the complainant was entitled, where it appeared that the complainant, who was a minor, fifteen years old, entered her appearance in the partition suit without service of process on her, and where her minority was not known, and in an amended bill complainant was stated to be of legal age, and the master in chancery paid over the proportionate part to which complainant was entitled to certain attorneys, who he assumed were authorized to appear for her, but whom the complainant claimed not to have employed, and where the proceeds were all distributed and the master, whose term had then expired, had not filed a report (the report having been filed after commencement of the instant suit), and complainant made no move in the matter until she was twenty-seven years of age, and there was no showing of any disability on her part since her majority, held that although the master should have filed his report and should have ascertained the authority of the attorneys to collect complainant’s money, he acted in good faith and complainant was barred from recovery by laches.</p> <p>2. Attorney and client, § 52*—when authority of attorneys to act presumed. The authority of attorneys to act for the parties for whom they appear is presumed xby the courts.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 348*—when exclusion of evidence as to basis of assessment of damages for overflow of land in prior action is erroneous. In an action against a railroad for damages to land caused by the construction of a solid embankment about two hundred feet from such land, and adjacent to a solid embankment erected by another railroad, thus leaving no outlet for a natural water course which, before such construction, ran across the defendant’s right of way, and causing the water to back up and overflow the plaintiff’s land, where it appeared that in a prior action damages had been assessed to the plaintiff and the plaintiff claimed that the judgment in the former action was res judicata, and the offer of the defendant to prove that the damages in the former action were not in fact assessed on the theory of law that the defendant was liable for the entire damage, and that in fact it was not liable for the entire damage was denied, held that the refusal to permit the introduction of the evidence offered was error.</p> <p>2. Railroads, § 348*—when exclusion of evidence in action for damages for overflow due to construction of embankment is erroneous. In an action against a railroad for damages to land caused by the construction of a solid embankment about two hundred feet from such land, and adjacent to a solid embankment erected by another railroad, thus leaving no outlet for a natural water course which, before such construction, ran across the defendant’s right of way, and caused the water to back up and overflow the plaintiff’s land, where the defendant offered to prove that its embankment did not change conditions which had existed long prior to the building of such embankment, and also offered to prove that the plaintiff had assisted in the work of closing the water course, and made various other offers to prove that it should not be liable for the entire damage, and all the offers were refused, held that the exclusion of such evidence was error.</p> <p>3. Railroads, § 348*—when evidence that embankment constructed by another railroad obstructed passage of water from land of adjoining owner is admissible. In an action against a railroad for damages to land caused by the construction of a solid embankment about two hundred feet from such land and adjacent to a solid embankment erected by another railroad, thus leaving no outlet for a water course, and causing the water to back upon and overflow the plaintiff’s land, held that the defendant had the right to show that the embankment of the other railroad had obstructed the passage of such water from the plaintiff’s land at the time the defendant constructed its embankment.</p> <p>4. Judgment, § 40*—when doctrine of res judicata applies. The doctrine of res judicata does not apply unless it appears that the parties, the subject-matter and the cause of action are identical.</p> <p>5. Waters and water courses, § 15*—what is liability of wrongdoer overflowing land for wrongful acts of others. In actions for damages to land by causing water to back upon and overflow such lands, the wrongdoer does not become responsible for the wrongful acts affecting the land committed independently by others.</p> <p>6. Estoppel, § 16*—when doctrine of estoppel by verdict is applicable. The doctrine of estoppel by verdict is but another branch of the doctrine of res judicata, and is applicable when some controlling fact or matter material to the determination of both causes has been adjudicated in a former proceeding and the same fact or matter is again at issue between the same parties.</p> <p>7. Evidence, § 323*—when parol evidence is admissible to show testimony given and questions determined. Where a judgment is offered in evidence in bar of a claim, and it is uncertain from the record what was adjudged, parol evidence is admissible to show what testimony was given and what questions were submitted for determination at the time the judgment was entered.</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, 1915.</p>

<p>1. Executors and administrators, § 313*—when award of execution improper. An award of execution against an executor is improper.</p> <p>2. Husband and wife, § 4*—when liable for burial expenses of wife. The duty of the husband to support his wife and to furnish her with necessaries, etc., includes the'duty to give her remains suitable burial after her death, and such duty is not set aside by section 4 of the Administration Act (J. & A. V 52), giving an executor, before probate of the will, authority to bury the deceased and pay necessary funeral expenses.</p> <p>3. Husband and wife, § 4*—what is effect of Married Women’s Acts on liability of husband for funeral expenses. The common-law liability of a husband for the funeral expenses of his wife has not been abrogated by the Married Women’s Acts.</p> <p>4. Husband and wife, § 4*—what is effect of classification of claims against estate on liability of husband for funeral expenses of wife. The common-law liability of a husband for'the funeral expenses of his wife is not affected by the classification of claims against estates by which funeral expenses are provided to be paid as claims of the first class.</p> <p>5. 'Husband and wife, § 4*—when husband relieved from liability for funeral expenses of wife. Where a husband paid the funeral expenses of his wife and sought to enforce the claim against the estate of the wife, and it appeared that the wife had in her last will charged her estate with the payment of funeral expenses, held that the husband was thereby relieved from liability, regardless of his common-law liability.</p> <p>6. Husband and wife, § 4*—what is effect of renouncement of husband under will on his liability for funeral expenses of wife. Where a husband paid the funeral expenses of his wife and sought to enforce the claim against the estate of the wife, and had renounced under the will, held that by such renouncement the matter was placed in the same situation as if there had been no will, so as to render him liable for funeral expenses.</p> <p>7. Appeal and error, § 1387*—when excluded evidence treated by Appellate Court as if admitted. Where the renunciation by a husband under the wife’s will was excluded by the trial court, on the trial of a claim of the husband against the estate for funeral expenses, and where it appeared that but for such renunciation the husband" would, by the terms of the will have been relieved from his common-law liability to pay such expenses, and that the execution and filing of the renunciation was proven, and it was offered in evidence and was contained in the bill of exceptions, held that if it was competent evidence it should be treated by the Appellate Court as if it had been admitted:</p> <p>8. Husband and wife, § 4*—when husband taking assignment of claim for funeral expenses paid undertaker is not in position of undertaker. Where a husband paid the funeral expenses of his wife and obtained an assignment from the undertaker, and then sought to enforce the claim against the estate of the wife, and by the terms of the last will of the wife she charged her estate with the payment of such expenses, but the husband renounced under the will, held that even if the estate had paid the claim to the undertaker it could have deducted the amount from the moneys going to the husband from his wife’s estate, on the ground of his primary liability, and that therefore he could not, by paying the bill and taking an assignment, put himself in the position of the undertaker.</p> <p>9. Appeal and ekrob, § 1803*—when case not reversed and remanded for new trial because of erroneous exclusion of evidence. Where the renunciation by a husband under the wife’s will was excluded by the trial court, on the trial of a claim of the husband against the estate of the wife for funeral expenses, and where it appeared that but for such renunciation the husband would by the terms of the will have been relieved from his common-law liability to pay such expense, and that the execution and filing of the renunciation was proven and it was offered in evidence, but that its admission was refused, and it was contained in the bill of exceptions, held that, as it was competent evidence and should have been admitted, there should not be a reversal and remanding of the cause for a new trial merely to let in such renunciation, but that it should be treated as if it had been admitted by the trial court.</p>

<p>1. Sttpulations, § 23*—what is effect of stipulations 'as to foreign law. Where it was stipulated hy the parties that the construction of the will in question was to be controlled by the laws of a foreign State and that the published reports and the statutes of such State were to-be considered in the decision as if they had been introduced in evidence, held that the court could not concede that parties to a suit in the State could cast upon any court the duty of searching" at its peril through the various statutes and decisions of another State to ascertain what the law is in such foreign State.</p> <p>2. Wills, § 264*—what words “die without lawful issue” as applied to remaindermen construed as meaning. Where, under the terms of a will which was stipulated to be controlled by the laws of New Jersey, the widow of the testator was given the use of the real estate so long as she remained a widow, or the proceeds thereof in case of sale, and if she married or died certain payments were to be made to persons named, and the residue was to be divided equally between a son and a daughter, and if either or both should die without lawful issue the portion which would have gone to the decedent should go to the surviving brother or sister, and the widow died, and said son died after the mother, and without issue, though he had issue who died before the testator’s death, and the main question was whether the words “die without lawful issue, though he had had issue who died before the testator’s death, without such issue before the death or remarriage of the widow, that is before the period of /distribution, held that under the law of such foreign State such provision meant that if either of the residuary beneficiaries died without lawful issue before the death or remarriage of the widow, the portion of the decedent should go to the surviving brother or sister, but that if they each survived the death or remarriage of the widow, they took the estate absolutely, one-half to each.</p> <p>3. Wills, § 227*—when expressed intent of testator governs in construction of will. Wihere, in the construction of a will, it was contended that tl^e fact that certain children had been blind from birth should have a bearing in construing the will to determine that no one but those two should have the property while either lived, held to interpret the will in such manner would be to make a will for the testator which he himself did not see fit to make, and that the will must he construed according to the intent expressed and not from an intent which the testator might have had in mind but did not express.</p> <p>4. Wills, § 441*—when legatees do not consent that sum, paid to life tenant out of proceeds of sale of real estate he deducted from legacies. Where a will provided for fthe payment of certain legacies upon the death of the widow, the life tenant, or upon her remarriage, and further provided that the wife should have the interest on the proceeds of the property during her life in the event of sale of the real estate, as long as she remained a widow, and then contained a residuary disposition, and it was contended that because the legatees had agreed to the payment of a certain sum out of the proceeds of the sale of real estate to the widow, they had lost their right to he paid out of the balance, held that by consenting to such payment such legatees could not be considered as having permitted that amount to be paid from their legacies.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Emery C. Craves, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 135*—when question whether failure to loolc for approaching street car is contributory negligence is for jury. Failure to look for the approach of a street car at a crossing is not to be considered negligence as a matter of law and does not necessarily bar a recovery, and the question whether the plaintiff is guilty of contributory negligence is one for the jury.</p> <p>2. Street railroads, § 94*-—when traveler has right to assume that speed ordinance will be obeyed. Where an ordinance requires a street car approaching a street crossing to be under the complete control of the motorman as to speed, a traveler at the crossing has the right to assume that the ordinance would be obeyed.</p> <p>3. Street railroads, § 135*—when question whether pedestrian crossing track is guilty of contributory negligence is for jury. In an action for personal injuries sustained while the plaintiff was about to cross a street car track in the business district of a town where the tracks of a steam railroad company were located about one hundred feet away, and where just before the plaintiff was struck by the car in question, which was going at the rate of twelve to fifteen miles an hour, his attention was suddenly directed to a bell ringing on the gate tower of the railroad, and he for an instant looked in that direction and did not see the street car, and where there was an ordinance requiring the street car to be under complete control of the motorman as it approached street crossings, held that the question as to whether the plaintiff was guilty of contributory negligence was one for the jury, and that .the judgment for plaintiff should be affirmed.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations, § 440*—what is measure of damages for injury to property by public improvement. Where property has been damaged, though not taken, by a public improvement, and the damage is of such a character that a recovery may be had, the measure of damages is the difference in value; of the property before the improvement was constructed and the value after the improvement was completed.</p> <p>2. Municipal corporations, § 425*—when property owner not entitled to damages for readjustment of building to conform to grade. In an action against a city for damages to property caused by the readjustment of plaintiff’s building to conform to the grade which had been legally established by the city prior to the time the building had been placed upon the premises, held that plaintiff was not entitled to damages.</p> <p>3. Municipal corporations, § 425*—when city making street improvements is liable for damage to property of abutting owner. A city in making street improvements, such as lowering the grade of a street, is liable for damages which may result to the owner of property abutting on the street.</p> <p>4. Municipal corporations, § 425*—when city is not liable for damage sustained by abutting owner cutting down street to conform to grade. A city is not liable for damage which the owner of property abutting on street corners may have sustained from his own voluntary act of cutting down the level of one of the streéts for a sidewalk which he had constructed thereon, so as to have it conform with a sidewalk built by the city on the other street.</p> <p>5. Municipal corporations, § 882*—what is duty of abutting property owner as to construction of improvements on land to conform to grade. The owner of a lot abutting upon a street is required to take notice of the permanent grade which has been fixed by a city ordinance and to make permanent improvements which he places upon a lot to conform to the grade established.</p> <p>6. Municipal corporations, § 450*—when evidence sufficient to show that market value of premises is not diminished by street improvement. In an action against a city for damages for injury to a corner lot sustained by the cutting down by the city of the surface level of one of the streets to build a permanent sidewalk, and by the cutting down of the level of the other street by the plaintiff itself, evidence held sufficient to show that the market value of the premises was not diminished by the improvement made by the city, and that the plaintiff was not entitled to recover damages for its own act in cutting down the level of the other street.</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>Abstract of the Decision.</p> <p>1. Execution—when proceedings for trial of right of property dismissed for misjoinder of plaintiffs. In proceedings for trial of right of property levied on under an execution, where it was claimed that the automobile in question was taken in exchange by one of the plaintiffs and that it was left with the other plaintiff to sell under an agreement that he was to have all he realized from a sale above a certain amount, held that the mere contract to sell did not give tlie plaintiff having such contract the standing of a claimant, and that the motion of the defendant to dismiss for misjoinder of plaintiffs was properly granted.</p> <p>2. Execution, § 122*—what is purpose of proceedings for trial of right of property. In proceedings for trial of right of property levied on under an execution, the purpose is to determine the right to the property as against the levy.</p> <p>3. Execution—when proceedings for trial of right of property may not he maintained hy claimants jointly. In proceedings for trial of right of property, where one person claimed the title to the automobile in question and another claimed merely an interest in the proceeds of a sale of the automobile, held that the property could not have been awarded to both claimants, and that therefore the action could not he maintained by them jointly.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 387*—when evidence insufficient to show fulfill•ment of contract by saloon keeper for purchase of beer and use of bar fixtures. • In an action for the return of money deposited pursuant to a contract under which the defendant installed fixtures and plumbing in the plaintiffs’ saloon, and plaintiffs agreed to sell the defendant’s beer exclusively for a period of two years, and for damages sustained for breach of the contract, where the deposit money was to he returned to the plaintiffs with interest at the expiration of said two years in the event of a compliance with such contract, and it appeared that there were some objections to the fixtures furnished but that they were usable, and plaintiffs ordered the defendant to remove the fixtures and they did so, and plaintiffs discontinued doing business after the expiration of about six months after entering into the contract because of their failure to procure a license and not because of any breach of contract by the defendant, held that the fulfillment of the contract by the plaintiffs was a condition precedent to their right of recovery of the deposit, and that they failed to make such proof.</p> <p>2. Contracts, § 294*—when performance by plaintiffs is essential to recovery for breach. In an action to recover money deposited with the defendant, where such money was deposited under a contract providing that the same should he returned in the event that the plaintifs should, during the period specified, purchase the beer of the defendant exclusively during the period and in the quantity specified, held that the fulfillment of such contract by the plaintiffs was a' condition precedent to a right of recovery of such deposit and for damages for breach of the contract, and that the fact that the fixtures were defective could not be taken advantage of by the plaintiffs to strengthen their case.</p>

<p>1. Marriage—when doctrine of estoppel inapplicable to uphold marriage. In divorce proceedings where the parties were first cousins and the marriage was ceremonial and the parties had lived together as husband and wife for many years, and children had been born who were still living, and the bill was dismissed for want of equity and a decree annulling the marriage entered, held that the doctrine of estoppel could not be invoked to uphold a relationship which the statute expressly condemned and declared void.</p> <p>2. Marriage, § 4*—when marriage between first cousins is void. A marriage between first cousins in violation of section 1 of the Marriage Act, ch. 89, Hurd’s Rev. St. (J, & A. If 7345), declaring, such marriages to be incestuous and void, is not only voidable but void.</p> <p>3. Marriage, § 4*:—when between first cousins not declared to be valid. Where a marriage between first cousins was annulled and it was contended that such marriages were only voidable and not void, held that as such marriages had been declared incestuous and void by section 1 of the Marriage Act (J. & A. If 7345), and as the crime of incest was made a felony by section 157 of the Criminal Code, ch. 38, Hurd’s Rev. St. (J. & A. 1f 3775), that to declare valid a marriage, the consummation of which was made a felony, would be unreasonable and would he against the express public policy of the State.</p> <p>4. Marriage—when fact that performance of is by minister of church of parties is immaterial. Where a marriage between first cousins was annulled as in violation of section 1 of the Marriage Act (J. & A. If 7345), and it was contended that because such marriage was sanctioned by the church of which the parties were members, and as the marriage was performed by a minister of that church, it should be upheld under section 5 of the Marriage Act (J. & A. 1f 7349), providing that persons belonging to any religious church, etc., might celebrate their marriage according to the rules and principles of such church, held that such section referred only to the celebration of marriages, and presupposed that the parties thereto would not come within the inhibitions of said section 1.</p> <p>5. Divorce, § 135*—when alimony and solicitor's fees properly disallowed. Alimony and solicitor’s fees held properly disallowed where the bill for divorce was dismissed and the marriage annulled on the ground that the parties were first cousins, and the alleged marriage was thus void in its inception.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Attachment, § 9*—when original will not lie. An original attachment will not lie in Illinois to recover unliquidated damages.</p> <p>2. Damages, § 81*—what is distinction between liquidated and unliquidated. Damages are said to be liquidated where they can be determined from the contract itself or from the contract and the rules of law applicable thereto, and where it is necessary to introduce evidence before plaintiff can prove his case, the damages are said to be unliquidated.</p> <p>3. Attachment, § 9*—-when affidavit is for unliquidated damages. In an original attachment action bought to recover the difference between the contract price and the market price of two cars of turkeys, where the affidavit alleged the purchase of a car of turkeys to contain a certain number of pounds of the grade designated as dry picked, dry packed and packed in barrels separate, at a certain price per pound, and that such turkeys were rejected on the ground of being frozen and of inferior quality to those purchased, and that the market value on the day in question was a certain .higher price per pound, held that the order quashing the attachment on the ground that it appeared in the affidavit that the claim was for unliquidated damages was correct.</p> <p>4. Attachment, § 9*—what affidavit in action to recover difference between contract and market price of poultry should set forth. In an original attachment action to recover the difference between the contract price and the market price of certain cars of poultry, held that the affidavit should have set forth the market price at the time of the breach of the contract, which was on the day the articles should have been delivered.</p> <p>5. Attachment, § 9*—when original action does not lie against nonresident. The fact that the defendant in an original attachment proceeding is a nonresident does not alter the rule that such an attachment will not lie to recover unliquidated damages.</p>

<p>Abstract of the Decision.</p> <p>Cabbiebs, § 81*—when failure of carrier to notify consignee of arrival of shipment at port of embarkation constitutes breach of contract. In an action against a common carrier for failure to deliver a shipment of canned corn in good order, where the shipment was delivered to the defendant as the initial carrier and the car was consigned to a certain party with directions to notify the plaintiff, in care of the steamship company at a certain city, and after arriving at the dock at such city, the car was overlooked and remained on the dock for two months and a half, when notice of its arrival was given to the steamship company, and the cases were then unloaded from the car and remained at the dock for over two weeks, after which the shipment was delivered -to a steamer and ultimately reached the consignee, and during all of this time no notice was given to either the consignor or consignee of the delay in shipment, held that under the bill of lading the defendant was required to notify the plaintiff upon the arrival of the shipment at the port of embarkation, and that leaving the car at such port without notice to either the consignor or consignee for such period constituted a breach of the contract.</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>Abstract of the Decision.</p> <p>1. Damages, § 85*—when money deposited ~by tenant as security for rent not treated as liquidated damages. In an action to recover money deposited under a lease to secure the payment of rent, where the plaintiffs had been dispossessed under a judgment for possession, and the rent of one month amounting only to one-eighth of the deposit, was involved, and the issue was whether the defendant was entitled to retain the entire deposit as liquidated damages, held that to compel the forfeiture of the entire amount of the deposit for the nonpayment of a month’s rent would be unconscionable.</p> <p>2. Damages, § 85*—what is nature oí money deposited By tenant as security for rent. Money deposited by a tenant as security for rent will, as a rule, be regarded as a penalty merely and not as liquidated damages, and it is immaterial whether the deposit is called a penalty or liquidated damages, and particularly so when the deposit is out of all proportion to the rent due.</p> <p>3. Damages, § 85*—what is important in determining whether deposit is penalty or otherwise. The element of reasonableness is an important factor in determining whether or not a deposit should be considered as a penalty or otherwise,' and if the forfeiture would be unreasonable, the entire deposit should. not be applied as liquidated damages.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 476*—when evidence sufficient to show injury of alighting passenger by sudden starting of car. In an action for personal injuries sustained by plaintiff while alighting from the defendant’s street car, where plaintiff claimed to have been injured by the sudden starting of the car while she was in the act of alighting, and her uncontradicted testimony was corroborated by her son and another witness, held that, while there might have been inconsistencies in the plaintiff’s story of more or less importance, the jury could properly conclude that in its essentials it was sufficient to support the charges of negligence in the declaration.</p> <p>2. Appeal and error, § 1248*—when counsel may not complain of conduct of court in administering rebuke. Where, in the argument of a personal injury case, the defendant’s attorney persisted in bringing before the jury material matter which was not strictly, part of the evidence, and which the court ruled out, and,then, upon counsel persisting, was rebuked by the court, held, that as the action of the court was invoked by the improper fconduct of counsel, the defendant could not be heard to complain on appeal.</p> <p>3. Damages, § 114*—when verdict for injuries to woman is not excessive. A verdict for $2,000 held, not excessive, where a woman nine weeks pregnant, who was thrown while alighting from a street car, received injuries to her leg, stayed in bed about ten days, then suffered a miscarriage, was in bed three weeks thereafter, was for some time attended every day by her physician, also suffered considerable pain, was apparently in good health before the accident, was sick during the succeeding summer and has suffered pain in her side since then.</p>

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

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

<p>Appeal from the County Court of Cook county; the Hon. R. J. Caenahan, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Garnishment—when garnishee is not entitled to retain funds. In an- action to recover money which the defendant had retained pending the decision of an attachment action against the plaintiff, in which the defendant was garnished, where the attachment was quashed and an order was entered discharging the garnishee, and although a certified copy of such order was served on the defendant, and the money demanded, he refused to turn it over, and, after such refusal, a writ of error was sued out in the attachment action, but it did not appear that the defendant was ever made a party to the supersedeas or that he ever received formal notice thereof, or that the writ was filed in the Municipal Court clerk’s office, and defendant claimed that as the suit in question was begun after the said writ of error was sued out, the writ might be pleaded in abatement, held that, after the defendant had been discharged as garnishee and demand had been made upon him to return the money, he had no right to retain the funds in the expectation that the defeated party in the original case might sue out a writ of error.</p> <p>2. Garnishment—when garnishee is not entitled to retain money pending writ of error. A garnishee in an attachment action has no right after the attachment has been quashed, and an order discharging him as garnishee has been entered, to retain the money during the pendency of a writ of error where no supersedeas was allowed, and he was not a party to the writ of error, and no notice of its issuance had been served upon him, and the writ was never filed with the clerk of the court to which such writ issued.</p> <p>3. Appeal and error, § 710*—what is effect of supersedeas. A supersedeas suspends the efficacy of a judgment, but does not, like reversal, annul the judgment.</p>

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

<p>Abstract of the Decision.</p> <p>1. Partnership, § 52*—when evidence sufficient to show existence of. On a bill for an accounting, where it was alleged that a copartnership existed between the parties for the purpose of securing, selling, financing and disposing of public utility franchises, evidence held sufficient to show that the parties, following the agreement in question, had transacted a partnership business as alleged.</p> <p>2. Partnership, § 61*—when franchises deemed to be property of. On a bill for a partnership accounting, where one of the questions to be determined was whether certain franchises were included in the partnership agreement of the parties, or whether they were to be regarded as the individual property of the defendant, held that when consideration was given to the time, manner and circumstances under which such franchises were acquired, it might reasonably be held that the acquirement of them inured to the benefit of the partnership.</p> <p>3. Partnership, § 337*—when evidence sufficient to show dissolution of. On a bill for a partnership accounting, where one of the main questions involved was whether or not the partners had agreed to dissolve as of a certain date and to permit the defendant to deal with a certain option contract free of the interest of the complainant, evidence held sufficient to show that the partnership was dissolved at the time in question.</p> <p>4. Partnership, § 422*—when accounting not allowed beyond time of alleged dissolution. On k bill for a partnership accounting, where one of the principal questions involved was whether the accounting should have been excluded beyond a certain date, or in any event beyond the date at which the hill alleged that a dissolution took place, and where it appeared that the bill sought a partnership accounting solely, and was not predicated on any fraudulent or deceitful conduct on the part _of the defendant, held that although there was sufficient evidence to warrant a finding that such accounting should have been had as of the earlier date, it was clear that it should not have been extended beyond the date at which the bill alleged that a dissolution had taken place.</p> <p>5. Partnership, § 61*—what not considered property of. Property acquired after the dissolution of a partnership hut before the affairs of the dissolved corporation have been wound up is not necessarily to be considered as partnership property, even though the partner acquiring it has continued to carry on the business of the dissolved firm without the consent of his late partners.</p> <p>6. Partnership, § 410*—what is extent of liability of partner to copartners for property of in his possession. Where a bill merely seeks a partnership accounting as between partners, each partner is deemed to be a debtor to the others to the extent of the partnership property under his possession or control at the time of the dissolution of the partnership.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 578*—what constitutes assignment of interest in decree of foreclosure and not of debt. Where, pending a suit to foreclose a trust deed given to secure certain notes, the holder of one of the notes assigned his interest in the subject-matter of the suit, held that such was not an assignment of such holder’s note but of his interest in any decree which might be rendered in the suit and of his right and title to a chose in action.</p> <p>2. Mortgages, § 578*—what are rights of assignees of interest of cross complainant in decree. Where, after a decree was entered in a foreclosure suit finding and adjudging a certain cross complainant was entitled to a certain sum under the trust deed sued on, the cross complainant assigned all his interest in the decree, held that the assignee took such interest subject to all the equities and rights then existing in prior assignees of the same fund.</p> <p>3. Assignments, § 24*—what does not affect right and title of assignee under. The right and title of an assign'ee under an assignment of a chose in action being sued upon, which was valid as against subsequent assignees to the fund assigned, would not” be affected by the filing in court of a subsequent assignment.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 447*—when evidence sufficient to show alteration in date of notes. Evidence held insufficient to warrant finding that the notes sued on had been altered in their date.</p> <p>2. Biles and notes, § 420*—when exclusion of evidence that plaintiff had received payment for his indorsement is erroneous. Refusal of the court to allow defendant in an action on an indorsed note by the indorser to show that plaintiff had received money for his indorsement and that he should not- be permitted to recover more than he had paid, held not to be error.</p> <p>3. Bills and notes, § 258*—when defense of maker of lack of consideration and use in violation of agreement is unavailable against indorser. A defense by the maker of a note sued on by an indorser thereon that the note was without consideration and was used by the party procuring its execution in violation of an agreement with defendant, held not to be available to defendant in such action where plaintiff indorsed the note after defendant had executed and indorsed it and there was no evidence tending to show plaintiff had knowledge of such agreement.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1411*—when finding of jury not disturbed. The finding of a jury will not be disturbed upon controverted questions where there is a direct and sharp conflict in the evidence.</p> <p>2. Instructions, § 7*—when accuracy in is necessary. Where the evidence is sharply conflicting, it is obligatory on the court to accurately .instruct the jury as to the law applicable to the case.</p> <p>3. Automobiles and garages, § 3*—when modification of instruction is improper. In an action to recover damages for injuries sustained by being struck by defendant’s automobile while driven by another, an instruction that plaintiff in order to recover must show not only that the car belonged to defendant but that it was driven by another for defendant and on defendant’s business, held to be proper as offered and improperly modified by the court by adding after the word “business” the words “or by and with the consent of” defendant.</p> <p>4. Automobiles and garages, § 3*—when instruction on liability of owner for injury by third person driving car is improperly modified. In an action to recover damages for injuries sustained by being struck by an automobile, an instruction that if the jury believed from the evidence that the defendant consented to and permitted a certain other party to take the automobile, and that in taking it such party was doing it for his own purposes and his own use and that the accident happened and plaintiff was injured while the said automobile was so being driven by such party, then the jury should find the defendant not guilty, held proper as offered and improperly modified by the court by striking out the word “not” before the word “guilty.”</p> <p>5. Automobiles and garages, § 2*—when owner of automobile driven by another is liable for injuries to a person. The owner of an automobile operated by another is only liable for injuries to a person where it is shown by a preponderance of the evidence that the person operating such automobile is in some degree acting for such owner or that he is operating such vehicle in and about the owner’s business.</p>

<p>Appeal from 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. Divorce, § 22*—what is essential to jurisdiction of court to enter decree of alimony. Without personal service upon or appearance hy the defendant in a suit for divorce brought by the wife, the court is without jurisdiction to enter a decree for alimony, even though the defendant has property within the court’s jurisdiction.</p> <p>2. Judgment, § 6*—when decree in personam cannot be entered. Without personal service upon or appearance by a party, no money decree in personam against him can be entered.</p> <p>3. Costs, § 1*—when judgment for cannot be entered. A judgment for costs cannot be entered against a party not personally served or appearing.</p> <p>4. Divorce—when right to alimony ceases. Upon death of a husband his wife’s right to alimony ceases.</p> <p>5. Divorce—when order allowing alimony is void as being without jurisdiction. An order allowing alimony rendered after the husband’s death is void and without jurisdiction, as the right depends upon the existence of a valid marital relation.</p> <p>6. Divorce—when order relating to alimony is void as bging without jurisdiction. Where an order was entered subsequent to a decree for divorce without personal service upon or appearance by the divorced husband relative to alimony and its allowance and collection out of a certain judgment recovered' by him, such order field to be void as having been entered without jurisdiction.</p> <p>7. Divorce—when decree upon petition for allowance of alimony is void as being entered without jurisdiction. Where a decree was entered upon a petition for allowance of alimony and solicitor’s fees and for payment of same out of a certain judgment recovered by the husband, defendant in the divorce suit, finding that certain assignments of said judgment were n»ll and void, and without personal service upon or appearance hy the assignees, such decree held to be void as being entered without jurisdiction.</p> <p>8. Judgment, § 576*—when of foreign court entitled to full faith . and credit. Where a party intervened in a suit brought in another State by the assignee of a certain judgment to enforce same and also brought an independent suit in such other State against such assignee seeking to have the assignment declared invalid, decree entered in such foreign suits held entitled, under the United States Constitution, art. IV, sec. 1, to full faith and credit in a suit brought by such party in this State to set aside said assignment.</p> <p>9. Interpleader—who may not be required to interplead. A party resident in one State cannot be required to interplead in a suit instituted in another State.</p> <p>10. Appeal and ebbor—when decree in which whole circuit bench is unanimous should be reversed,. Even if the whole circuit bench is unanimous in the entry of a decree which they are without jurisdiction to enter, it should be as readily reversed as if such error had been committed by but one member of the court.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers—what does not constitute notice to carrier that person receiving goods is agent for shipper. The fact that a party receiving certain goods shipped by a carrier is in the commission and brokerage business is not in itself notice to the carrier that such party was agent for the shipper.</p> <p>2. Carriers—when agent receiving goods for shipper is relieved from liability for freight charges. Before a party receiving a shipment of goods as agent for the shipper can be relieved from liability for payment of the freight charges on the goods, in an action to recover such charges, it must affirmatively appear that the carrier had actual notice of such agency.</p> <p>3. Carriers, § 33a*—what is implied notice as to tariff rates. The fact that tariff rates fixed by the Interstate Commerce Commission are on file at Washington is implied notice to all persons interested in such rates.</p> <p>4. Carriers, § 29*—validity of provisions of Interstate Commerce Act as to liability for freight charges. The Interstate Commerce Act, providing that “the owner or consignee shall pay the freight and all other lawful charges,” is constitutional.</p> <p>5. Carriers—when consignee is impliedly liable for charges. A consignee receiving goods shipped is impliedly liable for the shipment charges.</p>

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

<p>Abstract of the Decision.</p> <p>1. Tbosts, § 25*—when irrevocable trust is not created. A document directing a certain party to hold certain notes in trust for the use of the signer of the document during the signer’s life and on her death, “when money becomes due and is paid," to dispose of such money to specified donees and to make the bequests "in the name of a friend," held not to create an irrevocable trust.</p> <p>2. Wills, § 64*—when document is void as constituting insufficient testamentary disposition. A document directing a certain party to hold certain notes in trust for the use of the signer of the document during the signer’s life and on her death, “when money becomes due and is paid,” to dispose of such money to specified donees and to make the bequests “in the name of a friend,” held void as a testamentary disposition and as not fulfilling the legal requirements of a will.</p> <p>3. WiLts, § 374*—when note secured by trust deed becomes part of estate and passes by will. Where a document directed a certain party to hold certain notes in trust for the use of the signer of the document during the signer’s life and on her death, “when money becomes due and is paid," to dispose of such money to specified donees and to make the bequests “in the name of a friend,” and such signer did not die until after the notes had been paid and the money invested in other property in the form of a note secured by trust deed on certain real estate, held that the latter note became a part of the signer’s estate on her death and passed under the residuary clause of her will, notwithstanding the provisions of the document.</p> <p>4. Trusts, § 12*—when document cannot be treated as a declaration of trust. What is clearly intended as a voluntary assignment or gift but is imperfect as such cannot be treated as a declaration of trust.</p> <p>5. Trusts, § 28*—when document creating trust is void for remoteness. Where a document provided that a certain party named therein should hold certain notes in trust for the use of the signer of the document during the signer’s life and on her death, “when money becomes due and is paid,” should dispose of such money to specified donees, held that if the words “when money becomes due and is paid” were of controlling importance as designating a time when the trust fund should be paid to the beneficiaries, the document would be void for remoteness.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Attachment, § 14*—when evidence is sufficient to establish residence within State. Evidence held sufficient to establish defendant’s residence within the State, in an action in attachment against defendant as a nonresident debtor, where it appeared that defendant was a traveling man, absent from the State most of the time, but had rented a room in a house in a city within the State, carried a key and occupied the room when in the city.</p> <p>2. Attachment, § 3*—when act construed strictly. An attachment is an extraordinary remedy, and the act is strictly construed against the party seeking to enforce its drastic provisions.</p> <p>3. Attachment—when grounds of must be strictly proven. There are no presumptions in favor of plaintiffs in attachment suits; the grounds of attachment must be strictly proven.</p> <p>4. Attachment—residence as question of fact. The question of residence in an attachment suit is one of fact.</p> <p>5. Domicile, § 4*—what considered in determining residence. The question of residence is largely a matter of intent.</p> <p>6. Appeal and error, § 1500*—when exactitude in rulings of court are not imperative. Where the merits of the controversy are strongly in favor of the defendant, exactitude in the rulings of the court in procedure or on instructions are not imperative.</p>

<p>Abstract of the Decision.</p> <p>1. Guaranty—when evidence is sufficient to show execution of before signing and delivery of lease. Evidence held sufficient to sustain the finding that the guaranty of a lease was executed before the signing and delivery of the lease by the lessor, in an action to recover on such guaranty.</p> <p>2. Landlord and tenant, § 443*—when evidence is sufficient to show that lease was not canceled. Evidence held sufficient to sustain the finding that the lease in question was not canceled by agreement of . the parties, in an action to recover on a guaranty of the lease.</p> <p>3. Guaranty, § 7*—when no independent consideration is necessary. Where a guaranty of a lease is executed before the execution and delivery of a lease by the lessor, no independent consideration is necessary.</p> <p>4. Seals, § 2*—when presumed that each person signing instrument adopted a seal. When a bond or other sealed instrument purports on its face to be sealed by all its signers, and there are several seals to it, but not so many as there are names, it will be presumed that each person signing it adopted some one of' the seals.</p> <p>5. Guaranty, § 12*—when is as broad as terms of lease. A guaranty on a lease of “the payment of rent, and the performance of the covenants by the party of the second part in the within lease, covenanted and agreed, in manner and form as in said lease provided,” held to be as broad in its terms as the lease.</p> <p>6. Guaranty, § 16*—when obligation of guarantor becomes fixed. The obligation of the guarantor on a lease of payment of rent and performance of the covenants by the lessee in the lease, held to have become fixed upon default by the lessee of which the guarantor would not be entitled to notice, the guaranty being unconditional.</p> <p>7. Guaranty, § 17*—what is sufficient notice to guarantor of default. Commencement of suit on the guaranty of a lease is sufficient notice to the guarantor of the lessee’s default.</p> <p>8. Landlord and tenant, § 40*—what does not constitute delivery of lease to lessee. The handing of a lease to one of the parties to procure the signature of a guarantor thereto does not constitute a delivery thereof to the lessee, the lease not having been executed by the lessor.</p> <p>9. Landlord and tenant—what does not constitute possession of premises under lease. Possession, of premises by a lessee prior to execution and delivery of a lease therefor is not under such lease so far as the lessor’s rights under the lease are concerned.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. J. J. Rooney, Judge, presiding. Heard in this court at the October term, 1915.</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, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Cabriebs, § 476*—when evidence is sufficient to sustain finding for plaintiff as to accident. Evidence held sufficient to warrant the finding for plaintiff notwithstanding his description of the car and manner in which his clothing caught at the time he was injured was inaccurate as to some details, in an action to recover damages for personal injuries sustained while alighting from defendant’s street car.</p> <p>2. Appeal and error, § 1563*—when refusal of instruction is not reversible error. It is not reversible error to refuse an instruction denying the right of recovery under certain counts of a declaration where there is evidence tending to prove the allegations of other counts.</p> <p>3. Instructions, § 151*—when refusal of instruction is not error. Refusal to give an instruction that unless plaintiff proved his case by a preponderance of the evidence, that if the evidence was evenly balanced or the jury in doubt they should find the defendant not guilty, in an action to recover damages for personal injuries, held not error where other instructions told the jury that plaintiff must prove his case by a preponderance of the evidence.</p> <p>4. Damages, § 120*—when verdict for personal injuries to boy is not excessive. Verdict for $2,250 held not excessive, where the evidence tended to show that plaintiff, a boy eight years old at the time of the accident, was a normal healthy boy prior thereto, was found unconscious immediately after the accident and so remained for some time; that he had a swelling, on his head the size of a hen’s egg, bruises on his nose and a slight hemorrhage from the nostrils; chest and knees bruised and latter swollen; that he vomited a substance tinged with blood immediately after the accident, was confined to his bed for two weeks, and was out of school the same length of time, suffered with headaches and dizziness for three years after the accident and until time of trial, and by reason of the accident had become epileptic.</p> <p>5. Appeal and error, § 1094*—when brief contains improper statements. Charges in brief of plaintiff’s counsel that defendant and certain of defendant’s witnesses had suppressed facts, held unjustified and the language used unbecoming, unwarranted and. undignified.</p>

<p>1. Executors and administrators, § 8*—what- is nature of jurisdiction of County and Probate Courts in matters of administration. County and Probate Courts are courts- of general and unlimited jurisdiction in matters of administration, and exercise an equitable jurisdiction adapted to their organization and modes of procedure.</p> <p>2. Executors and administrators, § 8*—when order allowing 6r disallowing claim may be set aside. County and Probate Courts in the exercise of their equitable jurisdiction in matters of administration may, on motion at a subsequent term, set aside an order allowing or disallowing a claim against an estate where fraud or mistake has intervened.</p> <p>3. Executors and administrators, § 552*—when presumed evidence was sufficient to establish fraud in allowance of child’s award in account of executrix. Where the Circuit Court, on appeal from an order of approval by the Probate Court of an executrix’s final account, found a certain child’s award mentioned in such account was excessive and ordered that it be set aside and a new award made, held in the absence of a bill of exceptions, that it would be presumed that there was evidence before the trial judge on such appeal tending to establish fraud or mistake in the allowance of such award so as to give' the court jurisdiction to set the award aside.</p> <p>4. Executors and administrators, § 552*—when presumed that necessary steps were had in Circuit Court against executrix failing to account for assets. Where the Circuit Court, on appeal from an order of approval by the Probate Court of an executrix’s final account, found certain assets unaccounted for and ordered the executrix to account for same, held that while an executrix who conceals assets may be proceeded against by citation under Rev. ■ St. ch. 3, secs. 81, 82 (J. & A. Hj[ 130, 131), such was not the only remedy, and on appeal from the judgment of the Circuit Court it would be presumed the necessary steps were had in "that court in the absence of a bill of exceptions.</p> <p>5. Courts, § 104*—when Probate Court has jurisdiction. Where it is claimed that the representative of an estate has property belonging to the estate which is claimed by such representative individually, the Probate Court has ample authority to determine the ownership of the property, and it is not necessary that a separate suit be brought.</p> <p>6. Courts, § 104*—when Probate Court has no jurisdiction. The Probate Court has no jurisdiction to determine the ownership of property where the proceeding is between the representative of an estate on the one side and third persons on the other.</p> <p>7. Pleading, § 3*—when formal pleadings not required. No formal pleadings are required in the Probate Court.</p> <p>8. Executors and administrators, § 556*—when case tried de novo on appeal. On appeal to the Circuit Court from an order of approval by the Probate Court of an executrix’s final account, the case is tried de novo.</p> <p>9. Executors and administrators, § 552*—when presumed that sufficient showing was made that appellees were interested in subject-matter of proceeding. In the absence of a bill of exceptions on appeal from a judgment of the Circuit Court trying an appeal from an order of approval by the Probate Court of an executrix’s final account entered in the administration of an estate, held that it would be presumed that there was sufficient showing made that appellees were interested in the subject-matter of the proceeding.</p>

<p>1. Mandamus, § 179*—when petition of to compel allowance of inspection 'of books of corporation by stockholder is sufficient. A petition for mandamus to compel the respondent corporation and its officers to allow petitioner as a stockholder in the corporation to examine its books and records, alleging that the corporation had its principal place of business in Chicago; that certain of the respondents were its president and secretary, respectively; that petitioner appointed an agent or attorney and requested the corporation, its officers and directors to permit petitioner’s representative to examine its books and records, and that the request was denied, held to be sufficient.</p> <p>2. Corporations, § 179*—when stockholder may enforce right of inspection of books. The right of a stockholder to examine the books and records of the corporation may be enforced by mandamus against it and its officers if such right is denied.</p> <p>3. Mandamus, § 122*—who is proper party respondent. The corporation is properly joined as a party respondent in a petition for mandamus to enforce the petitioner’s right as a stockholder to examine the corporation books and records.</p> <p>i. Corporations, § 178*—what time allowed to stockholder to examine books within mandamus order. An order awarding a writ of mandamus to a petitioner to examine the books and records of a corporation of which he is a stockholder “during business hours,” held not to mean that such examination be carried on throughout the entire business day, but during business hours and not in the nighttime.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 252*—what amendments may he made after term. After the expiration of the term at which a judgment has been entered it can he amended only in matters of form.</p> <p>2. Appeal and ebbob, § 1887*—what are requisites of judgment in action on appeal hond. In an action of debt on an appeal bond, the judgment should specify the amount of the debt and damages and should be rendered for the debt to be satisfied upon payment of the damages.</p> <p>3. Appeal and ebbob, § 1887*—what amendment to judgment on appeal hond may not he made after term. In an action of debt on an appeal bond where judgment was entered upon a finding for the plaintiff and assessment of damages in a certain sum, and after expiration of the term at which the judgment was entered and approval and filing of an appeal bond , the court, on motion, entered a judgment purporting to correct the former judgment in form for incorrect transcription thereof hy the clerk of the court, and finding amount of debt and of damages and adjudging recovery of such debt and damages, with costs, held that such amendment was one of substance and not of form and the court was without power to make same.</p> <p>4. Appeal and error—when proper judgment cannot he entered on appeal in action on appeal hand. Where the evidence was not preserved in the record by bill of exceptions, held that there was no way of ascertaining the amount of damages, in an action to recover on an appeal bond, and proper judgment could not be entered on an appeal.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 53*—what does not constitute use of cars on street railway within fender ordinance. Where plaintiff was injured by certain dismantled and discarded summer street cars belonging to defendant while such cars were being moved from certain temporary tracks to defendant’s car barns, held that such use of the cars by defendant was not within the term “each and every car used on such street railway,” used in an ordinance providing that “every person or corporation controlling any street railway in the City of Chicago shall equip and provide each and every car used on such street railway with fenders," etc.</p> <p>2. Street railroads, § 131*—when evidence is insufficient to show wanton and wilful misconduct in injuring person crossing street car trade. Evidence held insufficient to warrant finding that certain cars of defendant were being pushed along the track at an excessive rate of speed, or that defendant’s servants were so conducting the moving of the cars as to constitute wilful and wanton misconduct, undér a count of a declaration charging defendant with wilful and wanton injury to a person crossing the street car tracks.</p>

<p>Abstract of the Decision.</p> <p>1. Principal and agent—what is competent evidence of knowledge "by principal of invasion of exclusive territory. In an action to recover damages for breach of a contract giving plaintiff exclusive agency for the sale of defendants’ goods in a certain territory, a telegram by plaintiff to defendants stating that a certain party was selling samples of the goods in such territory and that plaintiff would expect protection, held to be competent evidence that defendants had notice of the activities of such party.</p> <p>2. Damages, § 66*—what is measure of for breach of contract for exclusive agency. In an action to recover damages for breach of a contract giving plaintiff the exclusive agency for the sale of defendants’ goods in a certain territory, the value of the contracts lost to plaintiff by the breach, held to be the measure of damages.</p> <p>3. Instructions, § 98*—when proper on weight given testimony of interested party. An instruction that in weighing the testimony of one of the parties to the action the jury have the right to take into consideration the fact that he was a party to and interested in the result of the action, held proper where the other party to the action had not testified.</p> <p>4. Principal and agent—what constitutes binding contract of exclusive agency for sale of goods. An offer by plaintiff to sell defendants’ goods if given an exclusive agency for a certain territory and defendants’ written acceptance of such offer, and the purchase by plaintiff of such goods and plaintiff’s efforts in promoting their sale, held to create a binding and enforceable contract, in an action to recover damages for a breach of such contract.</p> <p>5. Damages, § 179*—what is competent evidence in action by agent for breach of contract of exclusive agency. In an action to recover damages for the breach of a contract giving plaintiff the exclusive agency for the sale of defendants’ goods in a certain territory, the price lists of defendants, the amount of plaintiff’s bid on a certain prospective sale of such goods, and a computation as to the net cost of their delivery on such sale, held competent evidence and a proper basis for computing plaintiff’s damages.</p> <p>6. Evidence, § 128*—when copy of telegram is admissible. A copy of a telegram is admissible upon accounting for the destruction of the original telegram.</p> <p>7. Evidence, § 114*—what is best evidence of contents of telegram. The original telegram filed with a telegraph company is the best evidence of its contents.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 340*—when question whether boxes manufactured are in accordance with contract is for jury. The question whether certain boxes manufactured under -a contract with the defendant were in accordance with the terms of the contract, held to be one for the jury, who had opportunity to examine the sample referred to in the contract and the one offered in evidence, in an action to recover damages for breach of the contract by defendant’s refusal to accept the boxes.</p> <p>2. Sales, § 340*—what are questions for jury in action for damages for refusal to accept goods. The question whether defendant by its actions had prevented the completion of certain boxes manufactured for it by plaintiff at the time stipulated in their contract, and, if not, whether it had waived such provision of the contract, held to be for the jury, in an action to recover damages for breach of the contract by defendant’s refusal to accept any of the boxes.</p> <p>3. Sales, § 341*—when evidence is sufficient to sustain finding in favor of plaintiff in action for refusal to accept goods. A finding for plaintiff, in an action to recover damages for breach of contract by defendant’s refusal to accept certain boxes manufactured for defendant, under the contract, upon the question whether defendant had prevented completion of the boxes at the time stipulated in the contract, and, if not, whether defendant had waived such provision, held not manifestly against the weight of the evidence.</p> <p>4. Sales, § 344*—when evidence is sufficient to sustain verdict for damages for refusal to accept goods. Evidence held sufficient to sustain a verdict of $400 damages, in an action to recover damages for defendant’s breach of contract by refusing to accept certain boxes manufactured for it under the contract, plaintiff having substantially completed a certain quantity of the boxes for which it would have been entitled under the contract to $550, and certain other boxes being in various stages of manufacture.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. P. B. Flanagan, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebrob, § 1413*—when verdict of jury,not disturbed. Where an action to recover damages for personal injuries had been tried twice, the witnesses produced at each trial were practically the same, both juries found the defendant liable, and such finding was not manifestly against the weight of the evidence, held that setting aside the verdict as to liability of the defendant would not be justified, notwithstanding the evidence might easily be held, on an independent review, to exculpate the defendant. •</p> <p>2. Damages, § 241*—when verdict not disturbed as excessive. A judgment for $6,700 held not excessive, notwithstanding a verdict and judgment on a former trial for $6,500 was held on appeal to have been excessive, the witnesses produced at each trial being practically the same, but the evidence on the second trial as to the extent of the injuries upon which the damages were based being somewhat stronger.</p> <p>3. Cabriebs, § 484*—when instruction on duty of carrier towards passengers is not erroneous. A general broad instruction as to a carrier’s duty towards passengers within the scope of the words “it does * * * undertakes to exercise the highest • degree of practicable care to secure the safety of its passengers” and the words “provided, that such neglect, if any, on the part of the carrier” to exercise such care “and such care, if any, on the part of the passenger” to exercise ordinary care for his own safety “are alleged in the declaration,” etc., held, considering all the instructions given, to furnish no basis for the claim the jury might have concluded they were warranted in basing their verdict upon any ground of negligence except that charged in the declaration.</p> <p>4. Cabriebs, § 484*—when instruction on what constitutes ordinary care is not misleading. An instruction that ordinary care as •used in instructions meant such as an ordinarily prudent person situated as plaintiff was before and at the time of injury would exercise for his or her own safety, held not objectionable as misleading, the jury to think that plaintiff, if she undertook voluntarily to step off the car while it was in motion, was ip. the exercise of ordinary care.</p>

<p>1. Insurance, § 488*—when evidence is insufficient to show justification for dispute as to right of recovery under accident policy. Evidence held to tend strongly to show that at the time of plaintiff’s accident, on account of which he brought action to recover under his accident insurance policy with the defendant, and at the time of his settlement under such policy and executing a release, there was no justification for any dispute concerning his occupation nór the amount of indemnity to which he was entitled under the policy.</p> <p>2. Trial, § 196*—when direction of verdict is proper. If either at the close of plaintiff’s evidence or of all the evidence there is no evidence, or but a scintilla of evidence, tending to prove the material averments of the declaration, the jury should be directed to return a verdict for the defendant.</p> <p>3. Trial, § 195*—when case should be submitted to jury. If there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments of the declaration have been proven, the cause should be submitted to the jury, even though a verdict for the plaintiff would have to be set aside on a motion for a new trial because of the manifest preponderance of all the evidence.</p> <p>4. Insurance, § 490*—when fraud and duress in procurement of release is question for jury. Evidence of fraud and duress in the procurement by defendant’s adjuster of plaintiff’s release of defendant’s liability under its policy of insurance issued to plaintiff, held ample to justify its submission to the jury, in an action to recover the amount of the policy.</p> <p>5. Insurance, § 488*—when incapacity of insured to make settlement is question for jury. Evidence bearing upon the physical and mental condition of plaintiff at the time he made settlement under his accident insurance policy-for the results of an accident tending to show he was then incapacitated for making such settlement, held to be for the jury to pass upon.</p> <p>6. Insurance, § 488*—when extent of influence of injuries on will in making settlement is for jury. The extent of the influence of plaintiff’s injuries upon his will and judgment in making a settlement under his accident insurance policy, held to be for the jury. 7. Evidence, § 33*—when presumed that common lab) is in force. In the absence of evidence as to the law of another State, it will be assumed the common law prevailed there at the time in question.</p> <p>8. Seals, § 2*—what is not instrument under seal. An instrument executed with a scroll, held to be, at common law, not one under seal.</p> <p>9. Seals, § 6*—what is effect of seal. A seal, generally speaking, merely adds “factitious dignity” to a document; more conclusiveness, as mere evidence of the agreement of the parties.</p> <p>10. Conflict of laws, § 12*—what law governs as to release. Where a release is presented as a defense to a cause of action, the law of the place where the release was executed as to its execution should be applied.</p> <p>11. Insurance, § 491*—when release is not bar to action on accident policy. Where an action was brought to recover on an accident insurance policy alleged to have been tortiously obtained from plaintiff by fraud and duress with a release of liability under the policy of the insurer obtained at the same time and under the same circumstances, the questions of defendant’s guilt of such tort and, if guilty, of what damages were thereby inflicted, held to be not affected by the fact of such release.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Look-wood Hoetobe, Judge, presiding. Heard in this court at the October term, 1915.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, 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 Superior Court of Cook county; the Hon. Oscar E. Heard, 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. John Courtney, 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. Samuel H. Tbude, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Appeal from the Circuit. Court of Cook county; the Hon. Lockwood Honoré, 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. Animals, § 46*—when verdict for damages for injuries from hite of dog is not excessive. A verdict for $900, reduced by remittitur to $600, held not excessive where a man was bitten in the leg by the defendant’s dog, and where the leg bled profusely and the laceration of the muscles caused a permanent condition, and plaintiff was under the care of a physician for nearly three months and suffered an actual loss of twenty weeks’ time at $18 a week.</p> <p>2. Animals, § 43*—when evidence is sufficient to sustain judgment for injuries to person by dog. In an action to recover for personal injuries sustained by plaintiff as the result of being bitten by a dog of the defendant, where it appeared that the plaintiff was visiting at a house located in the rear of the lot on which the defendant’s saloon was located; that as he was leaving the premises, the dog, which was being led by a chain, jumped up and bit plaintiff, and that the vicious character of the dog was Imown to the defendant, held that the judgment in favor of the plaintiff would not be disturbed.</p>

<p>Abstract of the Decision.</p> <p>1. Cabriebs, § 476*—when evidence is sufficient to sustain finding that passenger struck by another car after alighting is not guilty of contributory negligence. In an action against a street car company to recover for death of a passenger who, after alighting in the daytime from a westbound car, went around the back end of the car and then southward, with the apparent intention of crossing the street and transferring to a car on a north and south street, and was struck by an eastbound car going at the rate of about twenty-five miles an hour, without any warning, and where it appeared that the deceased walked slowly and, as he came around the car, looked west and that just then the car was up to him, and that another man was walking towards deceased from the opposite direction and was near the south rail of the eastbound track and only about eight to twelve feet from the deceased, and that there was nothing between this man and the eastbound track to obstruct his view of the approaching car, and that this man testified that all of a sudden he heard the rumble of a car, and as he turned around it was right up to him and he jumped off the track, and that just then the deceased was struck by such car, held that the conclusion of the jury that such deceased was exercising ordinary care would not be disturbed.</p> <p>2. Carriers, § 479*—when giving of instruction directing attention to testimony of defendant’s employees is harmless error. In an action for death of a street car passenger caused by the decedent being struck by another street car after alighting from the car in which he was riding, where an instruction was given which particularly tended to direct the attention of the jury to the evidence of employees of the defendant, with the implication that they were interested in the result of the case, but it appeared that the testimony of such employees was not the subject of controversy and vital, held that the instruction was improper, but that as there was no serious controversy over matters testified to by the employees of the defendant, and as by another instruction the jurors were told that they could not discriminate against the testimony of the defendant’s employees, a,nd as the evidence tended to show that other witnesses might have been interested, the giving of the instruction did not constitute reversible error.</p> <p>3. Carriers—when operation of street car is negligent. The operation of a street car in such a manner as to pass, at a speed of about twenty-five miles an hour without warning, at a busy transfer corner, another car on a parallel track which was stopped to permit passengers to alight, some of whom might cross the track on which such car was approaching, held to constitute negligence.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 476*—when finding of jury as to occurrence of accident to alighting passenger is sustained by evidence. In an action by a woman passenger against a street car company to recover for personal injuries, where the plaintiff, as the sole witness in her own behalf as to the accident, testified that she was thrown from the car through its jolting while she was on the rear platform preparatory to alighting, and the conductor testified that the car did not give a jolt and that notwithstanding the car was going at the rate of twelve to fifteen miles an hour, and the signal had been given for the car to stop at the crossing west of where the accident occurred, plaintiff deliberately walked off the car in about the middle of the block, and the testimony "of the only other witness to the actual occurrence contradicted plaintiff as to the jolting of the car, but was not reliable, held that the version of the plaintiff was the more reasonable and that the finding of the jury, who had an opportunity to see and hear the witnesses, would not be disturbed.</p> <p>2. Damages, § 110*—when verdict for permanent injuries is not excessive. A verdict for $6,400 in favor of a woman who was thrown from a street car, held not excessive, where it appeared that plaintiff sustained a fracture of the arm, and immediate efforts to set it resulted in failure; that thereafter plaintiff was admitted to a hospital where she was operated on and remained eleven days; that the arm was then in a east for five weeks and thereafter was carried in a sling; that after nine months plaintiff, on attempting to resume her work of stenography and bookkeeping, was unable to do so because of soreness in the arm; that she was unable to do any work for the succeeding seventeen months, with the exception of two weeks, and, at the time of the trial, six years after the accident, she was unable to lift her arm above her shoulder, and the movement of the arm was restricted and the injured arm was shorter and otherwise smaller than the other arm, and there was permanent atrophy of the muscle.</p>

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

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

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

<p>1. Bills and notes, § 32*—what does not constitute an acceptance of check. Where a notice printed in a pass book provides that checks on the bank will be credited conditionally to a depositor and such is the custom in all the banks in the city in which the bank is located, the fact that a check on the bank is entered in a pass book and stamped as payable through a clearing house and is put through the usual bookkeeping methods of the bank for the tracing of the check until the status of the account on which it was drawn may be ascertained does not constitute an acceptance of such check within sections 131, 184, 186, 188 of the Negotiable Instruments Act (J. & A. UV 7771, 7824, 7826, 7828).</p> <p>2. Banks and banking, § 100*—what are rights of bank as to crediting deposit on debt of depositor. A bank has the right, as against the holder of a check drawn by a depositor, to apply its credit balance to a debt due from such depositor to itself.</p> <p>3. Banks and banking, § 142*—when bank is not obliged to accept checks against deposited check. Where a check is deposited with a bank, the latter is not obliged to accept checks against it, until it can be determined in the regular course whether such check will be paid.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916,</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Municipal Coubt op Chicago, § 13*—when additional affidavit in support of statement of claim is necessary. In an action in the Municipal Court of Chicago to recover the value of goods, where the action was originally brought by the United States Gypsum Company, a corporation, and a statement of claim was supported by the affidavit of a person described as the agent of the plaintiff, and an affidavit of merits was filed denying all liability, and subsequently the “Gypsum Fireproofing Company,” a corporation, was substituted as plaintiff and no additional affidavit in support of the claim of the substituted plaintiff was filed, and defendant was ruled to file another affidavit of merits, and, upon failing to file such affidavit, a default judgment was entered, held that presumably the substituted plaintiff was a corporation distinct from the plaintiff; and as it did not appear that the agent whose affidavit supported the statement of claim was also the agent for the substituted corporation, proof of plaintiff’s claim was indispensable, as the affidavit to the original statement of claim was not amended by such substitution of parties, and a default judgment was accordingly improperly entered.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 330*—when instruction is erroneous as assuming proof of case 6y preponderance of evidence and as directing vendiet. In an action for money due upon a shipment of hides, where it was claimed in defense that the goods had been fraudulently treated so as to increase their weight, and the court charged the jury that the burden of proving fraud was on the defendant, and that unless such charge was proven by the clear preponderance of the evidence the jury should find for the plaintiff, held that such instruction was erroneous in assuming that plaintiff had proved his case by a preponderance of the evidence, and in directing a verdict for the plaintiff in the event that the defendant failed to show fraud on the part of the plaintiff.</p> <p>2. Sales, § 325*—when plaintiff must establish case by preponderance of evidence. In an action for money due upon a shipment of hides, where it was claimed in defense that the goods had been fraudulently treated so as to increase their weight, and the court charged the jury that the burden of proving fraud was on the defendant, and that unless such charge was proven by a clear preponderance of the evidence the jury should find for the plaintiff, held that the plaintiff was required to establish his case by a preponderance of the evidence regardless of whether or not the defendant succeeded in establishing its charge of fraud.</p> <p>3. Instructions, § 87*—when instruction on preponderance of evidence is misleading. In an action for money due upon a shipment of hides, where it was claimed in defense that the goods had been fraudulently treated so as to increase their weight, and the court charged the jury that the burden of proving fraud was on the defendant, and that unless such charge was proven by a clear preponderance of the evidence the jury should find for the plaintiff, held that such charge was misleading in requiring the defendant to prove fraud by a clear preponderance of evidence, as thus the burden was placed upon the defendant of establishing its defense of fraud by a higher degree of proof than required by the law, a mere preponderance being sufficient.</p> <p>4. Instructions, § 87*—when instruction on amount .of proof to show fraud by seller of goods is erroneous. In an action for money due upon a shipment of hides, where it was claimed in defense that the goods had been fraudulently treated so as to increase their weight, and where the court charged the jury that unless they were satisfied from the evidence that the plaintiff dried certain so-called belt butts for the purpose of intentionally deceiving the defendant they should find for the plaintiff, held that the instruction was prejudicially erroneous, as it was not necessary for the defendant to submit evidence that would satisfy the jury.</p> <p>5. Municipal Court of Chicago, § 29*—when judicial notice not taken of rules of. In an action in the Municipal Court to recover upon a shipment of goods, where the defendant complained of the charge to the jury, and where the plaintiff contended that the defendant was precluded from assailing the instruction of the court because no objection was made at the close of the charge before the jury retired, as required by the rules of the Municipal Court, and where such rules were not introduced in evidence, held that such point was untenable as the court could not take judicial notice of such rules.</p>

<p>Appeal from the County Court of Cook county; the Hon. H. B. Baton, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>Error to the Circuit Court of Cook county; the Hon. William B. Scholfield, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1271*—when presumed that evidence justified decree. On a bill of interpleader to determine which of several claimants was entitled to the proceeds of a benefit certificate, where the insured surrendered the certificate several times, and where the defendants contended that the decree was erroneous in failing to find the mental condition of the insured at* the time the certificate in which they were named as beneficiaries was surrendered, and that both the decree and the master’s report were silent upon such point, and that such error was not cured by a finding that the insured was of sound mind at a later date, and the record disclosed that the testimony before the master was made a part of his report and filed, but that it was not contained in the record on appeal, held that every intendment was in favor of the correctness of the decree, and that it must be assumed, in the state of the record, that if any finding such as was contended for had been necessary, the evidence justified a finding that the decedent was of sound mind at the time in question.</p> <p>2. Equity, § 515*—when specific findings of fact are unnecessary. Specific findings of fact in a decree are unnecessary where the evidence is preserved.</p>

<p>1. . Impbovements, § 6*—what considered in determining value of improvements and cost. The rule that the reasonable value of improvements on real estate is to be determined by the enhanced value of the real estate on which the improvements are made has no application where such improvements are made at the special instance and request of the owner. In such case the proper method of valuation was to arrive at the value of the improvements and the cost at the time they were made, and the depreciation from the time of construction to the date in question.</p> <p>2. Assumpsit, Action oe, § 44*—when lies. An action of assumpsit to recover the reasonable value of improvements is equitable " in its nature, and lies whenever a defendant has obtained money or property of the plaintiff which, in equity and good conscience, he has no right to retain.</p> <p>3. Appeal and e¡brob, § 1725*—when decision on former appeal is binding. The decision of the Supreme Court on a former appeal that an action lies to recover the reasonable value of improvements by a tenant is binding on a subsequent trial.</p> <p>4. Impbovements, § 6*—when owner of land liable for - reasonable value of. In an action of assumpsit by the erector and tenant of a building to recover the value thereof from the owner of the land, where the Supreme Court had on a former appeal decided that plaintiff was entitled to recover the reasonable value of such building as of a certain date, and where it appeared that the building had been erected at the defendant’s instance, and where the contract had been held ultra vires by the Supreme Court, but not malum in se nor malum prohibitum, and the building had been erected for use as a boarding house by the defendant without expense to it, and where the agreement of the parties contemplated payment to the plaintiff, held that, as the action being for the recovery of reasonable improvements was equitable in its nature, every principle of equity and fair dealing required that the defendant should pay the reasonable value, based upon the value and cost of the improvements when they were made and the depreciation from the time of construction to the date in question.</p> <p>5. Interest, § 20*—when allowed, to person advancing money. Where, in an action of assumpsit by the erector and tenant of a building to recover the value thereof as of a certain date, plaintiff had tendered the improvements to the defendant on such date, and the money of the plaintiff had been advanced in the erection of the improvements for the use of the defendant, and defendant contended that the damages were unliquidated and that there had been no vexatious delay in payment, and that therefore plaintiff was not entitled to interest, held that under the circumstances and for the reason that the action was equitable in its nature, interest was properly allowed.</p>

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 532*—when decree of foreclosure affirmed in part. On a bill to foreclose a trust deed where such foreclosure was denied on the ground that the trust deed had not been purchased by the complainant but that he had obtained possession thereof by subterfuge, and foreclosure of a mortgage in the nature of a warranty deed given as security was decreed in favor of complainant; allowances being made in the decree to various parties for moneys due in connection with the carrying on of the various transactions and the erection of a building on the premises, and both parties being dissatisfied an appeal was perfected by one and cross-errors assigned by the other, held that the decree should be affirmed excepting as to a certain allowance for master’s fees.</p> <p>2. Equity, § 401*—when taxing of master’s fees as costs is improper. On a bill to foreclose a trust deed where such foreclosure was denied, but foreclosure of a mortgage in the form of a warranty deed given as security was decreed and claims of various parties for moneys due in connection with the carrying on of the various transactions and the erection of a building on the premises were determined, and it appeared that the master who took the testimony and made his report died prior to the entry of the decree, and the court requested another master to draft the same, and there appeared to have been no order of reference to the latter master, held that the taxing of an allowance of $250 for the drafting and redrafting of such decree as costs was improper.</p> <p>3. Equity, § 396*—when increase in allowance of fees to master is proper. On a bill to foreclose a trust deed where such foreclosure was denied, but a foreclosure of a mortgage in the form of a warranty deed given as security was decreed, and claims of various parties for moneys due in connection with the making of the various transactions and the erection of a building on the premises were determined, and defendant claimed that it was error to allow $2,500 to a master who had only requested $2,000, and it appeared that before such master had prepared his report and before he had made up an estimate of charges he died, and his successor filed a supplemental report itemizing the services rendered by the deceased master and stating that in his opinion such services were reasonably worth $2,000, held that the amount of fees to be allowed to a master as stated in his report was not conclusive on the chancellor, and that he might decrease or increase them, and as the record was in six parts and was certified as having been prepared per prcecipe, the court was unable to say whether the record was complete, and that it could not say that the allowance was not authorized.</p> <p>4. Costs, § 8*—when assessment against complainant is proper. Where foreclosure of a trust deed was denied to the complainant but foreclosure of a mortgage in the nature of a warranty deed given as security was awarded to him, and such complainant objected to the assessment to him of $1,500 of the costs incurred before the master, held that as it appeared that such complainant had obtained possession of the trust deed which he sought to foreclose by subterfuge, and that a large part of such expense' was incurred by reason of the attempt to uphold the pretended sale of such trust deed to the complainant, such objection was untenable.</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>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 88*—what constitutes prima facie case in action for commissions. In an action to recover a commission on a certain real estate deal, where defendant agreed to pay plaintiff a certain commission upon consummation of the deal, a prima facie case held to be made out when plaintiff showed a contract for the sale of the land formally executed by the parties and accepted by the defendant, notwithstanding the defendant later refused to carry out the contract.</p> <p>2. Corporations, § 431*—when word in signature is deseriptio persona. The word “treasurer” after the name of an officer of a corporation is deseriptio persona.</p> <p>3. Corporations, § 430*—what is sufficient signature to agreement. The name of a certain company to a certain agreement, held to be sufficient if placed there by a person authorized to act for the company, even though the signature of the person acting as the company’s agent did not itself appear.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 683*-—when evidence sufficient to show failure to provide proper handrails on stairway. Evidence held sufficient to sustain the finding that defendants had failed to provide proper and substantial handrails on the stairway in defendant’s building where plaintiff, an employee, sustained injuries, as required by Rev. St. ch. 48, sec. 104 (J. & A. 1Í 5401), providing that proper and substantial handrails shall be provided on all stairways in factories, mercantile establishments, mills or workshops, etc.</p> <p>2. Master and servant—what is not proper handrail on stairway. Where a certain handrailing at the top of a stairway in defendant’s building had been cut away on the outside and the end of an upright supporting a series of shelves "set into the part cut away for about two feet from the top of the stairway, so that it would be impossible to grasp it, although a hand or a portion of it might rest upon it, held that such was not a “proper” handrail within Rev. St. ch. 48, sec. 104 (J. & A. 5401), providing that proper and substantial handrails shall be provided on all stairways in factories, mercantile establishments, mills or workshops, etc.</p> <p>3. Instructions, § 67*—when not erroneous because assuming facts. It is not erroneous to assume, in an instruction, the existence of an uncontroverted fact fully disclosed by the evidence.</p> <p>4. Appeal and ebbor, § 883*—necessity of abstracting instruction. Where complaint was made on appeal of the modification “of another instruction,” but the instruction itself was not identified or abstracted, held that the court was not constrained to search the record for it.</p> <p>5. Damages, § 115*—when judgment not excessive. A judgment for $2,500 for personal injuries held not excessive.</p> <p>6. Appeal and error, § 1752*—when judgment affirmed for insufficiency of abstract. Where appellant’s abstract was stricken from the record as not complying with the rules, and he filed a so-called “additional abstract of record” which merely attempted to supplement the former abstract and was altogether incomplete in itself or with the former, held that affirmance of the judgment was proper.</p>

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

<p>1., Statutes, § 43*—what is necessary as to classification of enterprises. When the Legislature attempts to subject enterprises to a new sort of liability not known to the common law, and without any affirmative election on the part of the proprietors of such enterprises, the classification should be so clear that all such proprietors will know at once whether they were or were not included.</p> <p>2. Workmen’s Compensation Act, § 1*—how construed. Legislation, like the Workmen’s Compensation Act, designed to promote the general welfare of the State, should not he so construed, on the one hand, as to defeat its object and on the other, as to make it a net for the unwary.</p> <p>3. Workmen's Compensation Act, § 1*—when business is not extrahazardous. Where defendant’s business was that of maintaining a hospital in a structure containing elevators, high pressure boilers, electric wiring, and apparatus for generating and conducting eléctricity and stairways, subject, together with the building, to the regulatory ordinances of a large city, held that such business was not extrahazardous within the meaning of clause 8, paragraph (b) of section 3 of the Workmen’s Compensation Act of 1913 [Cal. III. St. Supp. 1916, II 5475(3)], declaring occupations, enterprises or businesses to be extrahazardous in which statutory or municipal ordinance regulations may he imposed for the regulating, guarding, use or placing of machinery or appliances, or for the protection or safeguarding of employees or the public therein.</p>

<p>Error to the Superior Court of Cook county; the Hon. Theodore Bbentaho, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, 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. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court a,t the October term, 1915.</p>

<p>1. Animals, § 39*—when unnecessary to prove scienter in action for injuries by dog. In a cause of action for plaintiff being bitten by defendant’s dog, based upon defendant’s violation of a city ordinance requiring a dog running at large to be muzzled as distinguished from the corfimon-law action for negligence, held that it would not be necessary to allege or prove defendant’s scienter.</p> <p>2. Animals, § 48*—when instruction properly refused as based on wrong theory in action for injuries by dog. An instruction, in an action to recover damages for plaintiff being bitten by defendant’s unmuzzled dog, based upon defendant’s violation of a city ordinance requiring all dogs to be muzzled, which was based upon a theory that it was necessary to allege and prove defendant’s scienter, held properly refused.</p> <p>3. Evidence, § 458*—when evidence on former trial is inadmissible. Evidence on a former trial under an issue involving scienter on the part of defendant, held properly rejected in an action for injuries by a dog, where scienter on defendant’s part was not an issue.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Creditors’ suit, § 56*—when evidence is sufficient to show fraudulent procurement of loan and use of proceeds. Evidence held sufficient to show that certain of the defendants, the judgment debtor and her husband, obtained possession of complainant’s money deliberately and by the use of grossest fraud, that they did not obtain a loan of money from the other defendants for the purpose of enabling them to get possession of the certificate of purchase of certain real estate in question, and that they in fact used complainant’s money to-procure the certificate.</p> <p>2. Creditors’ suit, § 56*—when evidence is sufficient to show fraudulent assignment of certificate of purchase' of real estate. Evidence held sufficient to warrant the finding that the assignment of a certificate of purchase of certain real estate in question by the judgment debtor defendant to another defendant was done for the purpose of defrauding the debtor’s creditors and in particular the complainant, and was without consideration in a creditor’s bill on such judgment.</p> <p>3. Equity, § 313*—what evidence is sufficient to overcome allegation of sworn answer. The allegations of defendants’ sworn answer which, directly met the allegations of the bill, held overcome by the testimony of two witnesses or the equivalent thereof. 4. Equity, § 303*-—who has burden of proof as to new matter alleged in answer. The burden of proof of new matter alleged in an answer to a bill, held to be upon the defendant.</p> <p>5. Appeal and error, § 365*—what is effect of failure to make objection and note exception at proper time. Failure to make objection and note exception at the proper time during the course of a trial, held to operate as a waiver of the right to present the merits of the controversy on appeal.</p>

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

<p>Abstract of the Decisión.</p> <p>1. Master and servant, § 123*—what part of premises need not be kept safé. An employer is under no obligation to a servant to keep in a safe condition that part of his premises where the duties of the servant do not require his presence.</p> <p>2. Master and servant, § 535*—“when declaration shows that death of employee occurred at place of employment. The declaration held to sufficiently set forth that the accident which caused the death of plaintiff’s intestate occurred at a place where the deceased was, in the course of his employment, at work for the defendant.</p> <p>3. Master and servant, § 699*—when evidence sufficient to show that employee was properly at place of accident. Evidence held sufficient to warrant the finding that plaintiff’s intestate in the course of his employment for the defendant was properly at the place where the accident resulting in his death happened.</p> <p>4. Master and servant, § 127*—when rule that employer not required to keep place safe where conditions are changing has no application. The rule that an employer is not required to keep in a reasonably safe condition a place where a servant is at work where the conditions of such place are constantly changing, as in the construction of a bridge, has no application where an employee’s death was not caused by any changing condition in the prosecution of the work.</p> <p>5. Master and servant, § 699*—when evidence insufficient to show that servant had timely warning of movement of boxes. In an action for the death of a servant due to the falling of certain boxes which precipitated him into an unguarded elevator shaft, evidence held insufficient to show that plaintiff’s intestate had warning of the movement of the boxes in time to have avoided them.</p> <p>• 6. Master and servant, § 706*—when question whether servant was working at place of accident at time of death is for jury. The question whether plaintiff’s intestate was at and immediately before his fall down an elevator shaft whereby his death occurred, working at the place where the accident happened, Held properly submitted to the jury upon evidence admitted to sustain the theories of both parties to the action.</p> <p>7. Witnesses, § 253*—wHen credibility of witness is for jury. Where a statement in writing made by a certain witness shortly after an accident to plaintiff's intestate, resulting in the death of such intestate, tended to contradict in important particulars the testimony of such witness as the only eyewitness of the accident testifying on behalf of the plaintiff, Held that it was the province of the jury to determine the credence to he given such testimony.</p> <p>8. Masteb and servant, § 782*—wHen instruction properly refused as not in conformity witH evidence. An instruction based upon the finding by the jury that plaintiff’s intestate was at the place where the accident resulting in his death occurred contrary to instructions given him by his forewoman in his employment for defendant, Held properly refused where there was no evidence referred to from which it could be inferred that the deceased had been directed by the forewoman not to be at such place.</p> <p>9. Death, § 39*—when demurrer to plea of statute of limitations is properly sustained. In an action for the recovery of damages for wrongfully causing the death of plaintiff’s intestate, brought after one year and within two years after such death, where the law in force at the time of such death providing that such actions should be commenced within two years alter the death of the person was amended after the death of plaintiff’s intestate so as to provide that such actions should be brought within one year after the death, Held that a demurrer to defendant’s plea that such action was not brought within one year after the death of plaintiff’s intestate was properly sustained, as the act was not retrospective.</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 185*—when evidence insufficient to support verdict. Evidence in action to recover for personal injuries examined and held insufficient to support the verdict.</p> <p>2. Master and servant, § 1*—when evidence insufficient to show existence of relationship. Evidence in action for personal injuries examined and held not to show existence of relation of master and servant between defendant and the person through whose negligence the injuries were alleged .to have been caused.</p> <p>3. Negligence, § 157*—when burden of proof is on plaintiff. In an action to recover for personal injuries alleged to have been caused by defendant’s negligence, the burden of proving that plaintiff was in the exercise of due care, that his negligence did not contribute to cause the accident and defendant’s negligence was the proximate cause of the injury, is on the plaintiff.</p>

<p>1. Bills and notes, § 327*—what is unavailable as defense in action on note. In an action to recover on a promissory note absolute on its face, an oral contemporaneous contract in contradiction of the terms of the note is unavailing as a defense.</p> <p>2. Bills and notes, § 220*—when subsequent indorsee may avail himself of title of first indorsee. If a first indorsement of a note is valid and vests title to the note' in the indorsee, such title may be availed of in an action by any subsequent indorsee and holder of the note.</p> <p>3. Pleading, § 153*—when affidavit of merits is insufficient. It is not sufficient to set forth on information and belief the material defenses in the affidavit of merits in an action on a note.</p> <p>'4. Bills and notes, § 351*—when affidavit of merits insufficient to avoid assignment of note. The statement in the affidavit of merits in an action against the maker of a note that the payee was the owner of' the note at the time of maturity “in so far as any indebtedness which may be due from defendant to said payee,” held to be ambiguous and not to constitute any fact which in law would operate to avoid the assignment of the note by the payee and continue the title in it.</p> <p>5. Bills and notes, § 333*—when allouxmce of set-off is improper. In an action on a note, defendant’s counterclaim in the nature of a set-off which is in excess of the amount of the note is repugnant to Hurd’s Rev. St. ch. 98, sec. 12 (J. & A. 1f 7633), limiting a set-off to the amount of plaintiff’s debt.</p> <p>6. Set-off and recoupment, § 10*—when set-off cannot be claimed. Set-off cannot be claimed for unliquidated damages.</p> <p>7. Pleading, § 157*—when filing of affidavit of merits is within discretion of court. The allowance of a motion to file a third affidavit of merits rests in the sound discretion of the trial court.</p>

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

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

<p>1. Divorce—ufhat is sufficient proof of service of notice hy mail on nonresident. In a suit against a nonresident for divorce, where notice is served by mail, proof of receipt of such notice is not required, but a certificate of the clerk that .the notice was mailed is sufficient compliance with the statute.</p> <p>2. Divorce, § 45*—when 'evidence sufficient to show notice of divorce proceedings. On a bill of review to set aside a decree of divorce, evidence examined and held to show that complainant had knowledge and notice of the divorce and agreed to the terms of the decree.</p> <p>3. Divorce, § 67*—when wife barred hy laches from questioning default decree. One who, with full knowledge of the pendency of a suit against her for divorce, acquiesces in and agrees to all that is done and accepts a financial settlement based thereon and does not question the decree until the husband has been dead more than four years after the entry of the decree, is barred by laches from contesting such decree, especially where there is no reason for the delay and the rights of innocent third persons have intervened.</p> <p>4. Divorce—when depositions may he used. On a suit for divorce, it is not required by the Act of 1874, sec. 8 (J. & A. H 4223), that the witnesses be examined orally in open court, but they may be heard by deposition, the purpose of the act being only to prevent the reference of default divorce causes to masters in chancery.</p>

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

<p>Abstract of the Decision.</p> <p>1. Damages, § 110*—when verdict for personal injuries is excessive. In an action by a passenger for injuries alleged to have been received by the starting of the car, evidence held insufficient to sustain a verdict for $3,500 for bruises on the head and impairment of vision, alleged to be due to the accident.</p> <p>2. Appeal and ebbob, § 1401*—when verdict intended to compensate for injuries not causally related to accident witl not he sustained. In an action for personal injuries, the court will not, on appeal, permit a verdict to stand which was manifestly intended to compensate for injuries, the causal relation of which to the accident is not sufficiently shown.</p> <p>3. Damages, § 188*—when evidence insufficient to show that impairment of vision was due to accident. In an action for personal injuries alleged to have been received through the starting of defendant’s car as plaintiff was alighting, evidence held insufficient to show that the impairment of vision complained of was due to the accident.</p> <p>4. Appeal and error, § 1474*—lohen admission of conjecture and speculation of expert witness is reversible error. In an action for personal injuries, the admission of conjecture and speculation of a medical witness as to what might produce or cause the condition found by him in plaintiff, is reversible error.</p> <p>5. Evidence, § 410*-—what opinion of medical witness may not be given. In an action for personal injuries, it is error to permit a medical witness to testify that plaintiff would eventually become blind, though how long thereafter he could not state, as such an opinion is merely speculative.</p> <p>6. Evidence, § 368*-—when witness may not testify as to subjective conditions. In an action for personal injuries it is error to permit a witness to testify as to subjective conditions of plaintiff.</p>

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

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 97*—when person crossing track in front of car is guilty of contributory negligence. In an action to recover for the death of one struck by a street car in crossing the track, the evidence showed that plaintiff’s intestate, while looking in another direction, stepped on the track when the car was six or eight feet away and approaching at a good rate of speed, and that its gong was sounding and it was lighted and its headlight was burning. It did not appear that he looked for the car or that his view of it was obstructed, but it did appear that, if he had looked, he must have seen it. The evidence further showed that the speed of the car was not excessive and plaintiff admitted that defendant used all efforts to avoid the injury after the peril was discovered. Held, that plaintiff’s intestate was not in the exercise of ordinary care, but was guilty of such contributory negligence as to preclude a recovery.</p> <p>2. Appeal and ebbor, § 1810*—when case reversed with finding of fact. The power of the Appellate Court to reverse a judgment of the trial court with a finding of fact is not confined to cases in which the latter might properly direct a verdict.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 66*-—when burden of proving contract for commissions is on plaintiff. In an action to recover commissions on the sale of goods under an oral contract, the burden of proving the contract under which he claims is on plaintiff.</p> <p>2. Evidence, § 475*—what does not constitute preponderance of. In an action to recover commissions under an oral contract where the only persons having knowledge of the terms of the contract are plaintiff and defendant’s agent, with whom it is claimed to have been made, and their evidence conflicts, held that a meeting of minds as to the terms ahd the preponderance of the evidence in plaintiff’s favor were doubtful.</p> <p>3. Appeal and ebbob, § 1772*—when case reversed because of conduct of counsel. In an action to recover on an oral contract in which the evidence as to the meeting of the minds is doubtful, and there is .a direct conflict of evidence between the only persons having knowledge of the terms of contract, a judgment for plaintiff will be reversed where his counsel persistently endeavored, in the face of adverse rulings by the court, to bring prejudicial matter before the jury, both in his examination of the witnesses and in his argument to the jury.</p>

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

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

<p>Abstract of the Decision.</p> <p>1. Insurance—when use of automobile by mortgagor avoids policy. "Where a policy of fire insurance on an automobile, issued to plaintiff and one who bought the automobile from plaintiff and gave back a mortgage for part of the purchase price, provides that the automobile shall not be used for renting purposes or for hire, and the evidence shows that such car was used mainly, if not entirely, for livery purposes and uses by such mortgagor, there can be no recovery under the policy.</p> <p>2. Insurance, § 120*—what are limits of rule of as to liberal construction of policy in favor of insured. The rule that an insurance policy is to be liberally construed in favor of the insured is not carried to the extent of construing the policy contrary to its manifest intent and express condition.</p> <p>3. Insurance—when provision in policy restricting use of automobile applies to both mortgagor amé mortgagee. The condition in a policy of fire insurance issued on an automobile to the mortgagee and mortgagor of the car, as their respective interests might appear, that the car shall not be used for renting purposes or for hire, applies to both the mortgagor and the mortgagee.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiix, 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>Error to the Municipal Court of Chicago; the Hon. Harrt M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Mechanics’ liens, § 162*—what subcontractor suing owner and contractor at law must show. In an action under the Lien Act (Hurd’s Rev. St. ch. 82, sec. 28, J. & A. U 7166), to recover against the owner and contractor jointly for labor and materials furnished as subcontractor, plaintiff must show that he is entitled to a lien on the premises.</p> <p>2. Mechanics’ liens, § 162*—what judgment in action at law by subcontractor against contractor and owner must recite. In an action under the Lien Act (Hurd’s Rev. St. ch. 82, sec. 28, J. & A. If 7166), to recover against the owner and contractor jointly for labor and materials furnished as subcontractor, the judgment must recite the date when the lien attached.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Eichabd S. Tutiiill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

<p>Abstract of the'Decision.</p> <p>1. Mortgages, § 738*—when owner of equity of redemption entitled to rents, issues and profits during redemption period. The provision in a trust deed as to the rents, issues and profits collected during the redemption period, which directs the receiver to pay “any rents that may be collected after such sale and before the time of redemption expires, to the purchaser or purchasers of said premises' at such sale or sales,” does not pledge the rents, issues and profits collected during the period of redemption, but they belong to the owner of the equity of redemption unless he has assumed the indebtedness and there is a deficiency decree against him personally.</p> <p>2. Mortgages, § 635*—when order directing receiver to recover amount of deficiency decree is vacated by order of vacation. A decree in foreclosure found that defendant and his codefendant were personally liable for the indebtedness and a deficiency decree was entered against them and the receiver was ordered to remain in possession of the premises during the period of redemption “for the purpose of collecting such deficiency or such part thereof as he may be able to collect.” Subsequently the decree was modified by an order vacating the provision finding defendant personally liable. Held, that such order of vacation necessarily affected every part of the decree inconsistent therewith respecting the payment of the rents, issues and profits collected during the period of redemption and therefore vacated the order directing the receiver to collect the amount of the deficiency decree.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Mastín, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the .Circuit Court of Cook county; the Hon. Oscar M. Torbisok, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.</p>

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

<p>Abstract of the 'Decision.</p> <p>1. Sales, § 323*—what constitutes variance where performance pleaded. In an action to recover on a contract by defendant to purchase a bond, where plaintiff pleads performance, he must prove performance as alleged and cannot recover on a waiver of performance.</p> <p>2. Sales, § 323*—when waiver of performance must be pleaded. Waiver of performance of a contract must be pleaded, when relied upon in an action to recover on a contract of sale.</p> <p>3. Sales, § 329*—when evidence is insufficient to show performance of contract for sale of bond. In an action to recover on a contract for the purchase of a bond in which the plaintiff pleads performance, where the evidence shows neither an actual offer by plaintiff to make delivery of the bond to defendant nor to leave it in defendant’s possession, but shows that plaintiff retained it and did not make a formal tender of it. until after he had commenced suit, performance is not shown.</p> <p>4. Sales, § 325*—when burden of proof is on plaintiff. In an action on a contract for the purchase of a bond, the burden is on the plaintiff alleging performance to prove performance on his part.</p>