Volume 206 — Illinois Appellate Court Reports

<p>1. Assumpsit, Action of, § 89*—when evidence sufficient to sustain finding for plaintiff. In an action to recover for money lent, evidence examined and held sufficient to support a finding for plaintiff.</p> <p>2. Pledges, § 44*—when evidence sufficient to sustain finding for plaintiff in action to recover value of pledge. In an action to recover the value of certain bonds alleged to have been deposited with defendant as collateral, evidence held sufficient to support a finding for plaintiff.</p> <p>3. Pledges, § 12*—when implied contract exists that pledgee will return collateral. There is an implied contract that one with whom collateral security has been deposited will return the collateral when the indebtedness for which the collateral is held is paid.</p> <p>4. Pledges, § 44*—what is liability of pledgee refusing to return collateral upon payment of indebtedness. The refusal of the holder of collateral security to return the collateral upon the payment of the indebtedness due him is a conversion and a breach of his implied contract to return the collateral, for which the owner of the collateral may maintain an action of assumpsit to recover his damages.</p> <p>5. Assumpsit, Action of, § 7*—when lies to recover for breach of contract. Assumpsit will lie to recover damages for the breach of a contract, whether the contract is express or implied.</p> <p>6. Action, § 43*—what claims may be joined. A claim for money lent and a claim for the value of bonds deposited as collateral to secure an indebtedness from plaintiff to defendant, which has been paid by plaintiff, may be joined in one action.</p> <p>7. Appeal and error, § 367*—when objection that action is premature is too late. The objection that an action for money lent is prematurely brought cannot first be made on appeal.</p> <p>8. Action, § 68*—when is not prematurely brought. In an action to recover for money lent, held that the action was not prematurely brought.</p> <p>9. Interest, § 5*—when properly allowed. In an action to recover for money lent and for the value of certain bonds deposited with defendant as collateral security, where plaintiff’s contention was that defendant expressly agreed to pay interest on the loan, and defendant collected interest on the bonds, it was not error to allow interest for each item in a judgment for plaintiff.</p> <p>10. Judgment, § 172*—when not erroneous because in excess of amount claimed. Where plaintiff claims a certain sum and interest thereon, it is not error to enter judgment for amount in excess of the principal where the excess is made up of interest.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Assumpsit, Action of, § 89*—when evidence sufficient to show loan to defendant personally. In an action to recover money loaned defendant, which plaintiff claimed was loaned defendant personally, while defendant claimed it was loaned to a company of which he was president and the notes of which plaintiff received, evidence held sufficient to support a finding for plaintiff.</p> <p>2. Witnesses, § 279*—what is admissible to contradict witness. A letter written by a witness which tended to contradict him, held properly admitted.</p> <p>3. Appeal and error, § 1514*—when improper remarles of counsel are harmless error. In an action to recover money loaned, the act of plaintiff’s counsel in referring to plaintiff as a “poor workingman” is not ground for reversal where, on objection, the word “poor” was withdrawn and it was admitted that plaintiff was not poor.</p> <p>4. Appeal and error, § 1514*—when error in conduct of counsel is harmless. Where a reference by plaintiff’s counsel to defendant’s witness as a “liar” is objected to and on defendant’s motion is stricken from the record, there is no reversible error.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoee, 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. Look-wood Honore, 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>Landlord and tenant, § 50*—what are rights of tenant erecting sign on premises under parol permission contrary to terms of lease. A parol permission by a landlord to a tenant under a written lease to put up a sign on the premises contrary to the express prohibition of the lease does not invest the tenant with an irrevocable right to maintain the sign during the demised term, contrary to such express prohibition, and an injunction will not lie to restrain the landlord from removing a sign erected under such parol authority.</p>

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

<p>1. Insurance, § 749*—what contract of fraternal beneficiary society as to payment of mortuary benefits is not binding. A fraternal beneficiary society incorporated under Hurd’s Rev. St. 1915-1916, ch. 73, p. 1542 (J. & A. 1f 6646 et seq.), cannot make a binding contract that a mortuary benefit shall be payable to a person or class of persons other than those enumerated in the statute.</p> <p>2. Insurance, § 810*—when beneficiary cannot take. One who is named as a beneficiary under a certificate of a fraternal beneficiary society and does not come within the classes of persons designated, at the time of the member’s death, by the statute as eligible as beneficiary, cannot take.</p> <p>3. Insurance, § 833*—when fund passes to heirs. Where the certificate of a fraternal benefit society names as beneficiary one who, is not eligible under the statute, the fund passes to the heirs.</p> <p>4. Insurance, § 717*—when reference must be made to contexts of statute and by-law. .To determine the meaning in a statute and by-law of an insurance order of a term having more than one meaning, reference must be had to the context in which it is used, to the general purpose of the statute and to the purpose of the organization which adopted the by-law.</p> <p>5. Insurance, § 811*—what is a “family” within statute and bylaw of fraternal benefit society. “Family” as used in the Fraternal Benefit Society Act (J. & A. If 6646 et seq.), and in the by-laws of an organization organized thereunder, held to mean a collective body, consisting of two or more persons who live together and between whom there are family relations of a domestic character.</p> <p>6. Insurance, § 811*—when evidence is sufficient to show that beneficiary is member of family of insured. In an action upon a fraternal benefit society certificate, evidence held to show that the beneficiary was a member of the family of the insured.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 358*—when plea is one of want of consideration. Where, in an action on a promissory note, while the first plea charges that the execution of the note was obtained by the use of “fraud and circumvention,” but the plea thereafter stateé in detail a charge of fraud as to the consideration, the issue made up by the plea is, in substance, that it was given without consideration.</p> <p>2. Biles and notes, § 462*—when instruction as to lack of fraud in obtaining execution of note is properly refused. Even though, in an action on a note, the plea alleges “fraud and circumvention” in obtaining the note, it is not error to refuse an instruction that there was no fraud or circumvention in obtaining its execution, where the plea is, in substance, that the note was given without consideration, and the jury are instructed that the production of the note makes out a prima facie case for plaintiff, and that he is presumed to be a bona fide holder for a valuable consideration and before maturity.</p> <p>3. Bills and notes, § 462*—when instructions not erroneously given. Instructions in an action on a promissory note, held not erroneously given.</p> <p>4. Evidence, § 459*—when evidence of testimony of party in another suit is admissible. Evidence of testimony of what certain witnesses heard one of the parties testify to in the course of another suit is admissible, if germane to the issue.</p> <p>5. Evidence, § 459*—when transcript of evidence in another action is properly excluded. Refusal to admit in evidence a purported transcript of the evidence given by one of the parties as a witness in another action is not error where the transcript is not in proper form.</p>

<p>Appeal from the Superior Court of Cook county; the' Hon. Mabcüs Kavanage, 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>Appeal from the City Court of East St. Louis; the Hon. Robebt H. Elannigan, Judge, presiding. Heard in this court at the October term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Jury, § 26*—when judgment upon oral waiver of trial 6y jury and plea of guilty is erroneous. Judgment in a criminal case, where the defendant waived a trial by jury orally and entered a plea of guilty, that the defendant pay a certain fine and stand committed until same and costs are" paid, held erroneous in ordering such commitment upon a waiver of trial by jury not in writing, and in violation of Hurd’s Rev. St. 1903, ch. 110, sec. 102 (J. & A. jf 4145), providing that no person shaU be imprisoned for nonpayment of a fine except upon conviction by a jury or a waiver of a jury trial in writing.</p>

<p>Error to the Circuit Court of Fayette county; the Hon. William B. Weight, 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. Cabriebs, § 480*—when contributory negligence of passenger alighting from train is question for jury. Whether a passenger on a railroad train was guilty of contributory negligence in getting off the train at a place other than that prepared for his exit, if one had been prepared, whereby he was injured, held to be a question for the jury.</p> <p>2. Cabbiebs, § 480*—when contributory negligence in crossing tracks after alighting from train is question for jury. Whether plaintiffs’ intestate was guilty of contributory negligence, after alighting from a train, in walking along and passing over certain railroad tracks at what he must have known was a dangerous place, with his head bowed down and without looking to see if another train was approaching, held to be a question for the jury.</p> <p>3. Cabbiebs, § 476*—when evidence is sufficient to show contributory negligence by passenger. ' A finding that plaintiffs’ intestate was guilty of contributory negligence at the time he was killed by defendants’ railroad train, after alighting from another train, held not against the manifest weight of the evidence.</p> <p>4. Cabbiebs, § 493*—when instruction on contributory negligence is erroneous because not in conformity with pleading. An instruction, in an action to recover damages for the death of plaintiffs’ intestate from injuries sustained by being run over by defendants’ railroad train after alighting from another train, that plaintiffs could not recover unless it appeared from the evidence that the deceased was in the exercise of ordinary care for his own safety, held erroneous under a declaration charging that the acts of negligence complained of on the part of the defendants were wilful and wanton, and evidence tending to so show.</p> <p>5. Cabbiebs, § 493*—when instruction on contributory negligence is not erroneous because not in conformity with evidence. Where a declaration charged that certain acts of defendants in the operation of their railroad train, whereby plaintiffs’ intestate, a passenger who had,alighted from another train, sustained injuries which resulted in his death, were wilful and wanton, an instruction that the plaintiffs could not recover unless it appeared from the evidence that the intestate was in the exercise of ordinary care for his own safety, held not erroneously given where the evidence did not tend to show such acts were wilful and wanton.</p> <p>6. Cabbiebs, § 402*—when negligence in operation of train striking passenger who alighted from another train is not wilful and wanton. Where at the time plaintiffs’ intestate, a passenger who had alighted from a train, was struck, the train which struck him was being operated on a parallel track at a rate of four to six miles an hour, with a brakeman having a lighted lantern on the foremost car and his lantern in a conspicuous place and in accordance with the city ordinances, such operating of the train held not wilful and wanton, notwithstanding the brakeman allowed the train to proceed after he had seen the deceased approaching for some distance before reaching the point where deceased was injured.</p> <p>7. Cabbiebs, § 402*—when operator of train has right to assume that passenger alighting from another train will not step on tracks. The operator of a railroad train who saw plaintiffs’ intestate, a passenger who had alighted from another train, approaching the track for some distance before reaching the point where the intestate was injured, held to have a right to assume that the intestate would see the train moving and would act as a reasonably prudent man and not step upon the track in front of the train.</p> <p>8. Cabbiebs, § 493*—when instruction on contributory negligence of passenger struck by another train after alighting is proper. In an action to recover for the death of a passenger who was struck by another train after alighting from the one on which he was passenger, an instruction that if plaintiffs’ intestate had looked and by the exercise of ordinary care could have ascertained the approach of defendants’ train along the track in time to have avoided injury and did not look, plaintiffs could not recover, held proper.</p>

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

<p>Abstract of the Decision.</p> <p>I. Railboads, § 738*—When evidence sufficient to show lack of due care of pedestrian crossing track. Evidence held sufficient to show that plaintiff’s intestate was not at the time he was injured in the exercise of due care for his own safety, where he stood on defendants’ railroad track at a crossing with an unobstructed view of the track for four to six hundred feet, on a clear day, and there were no other trains or unusual noises or things tending to confuse him or cause him to fail to look or listen, and he did not look or listen, and two ordinary steps would have carried him beyond the reach of the train which struck him.</p> <p>2. Railroads, § 754*—what is not negligence per se of person about to cross track. Failure to look to see if a train is approaching as a person is about to cross a railroad track is not in law negligence per se on the part of such person.</p> <p>3. Railroads, § 754*—when failure of person about to cross track to look for train is negligence in fact. Failure of a person about to cross a railroad track to look to see if a train is approaching may be negligence in fact if there are no conditions or circumstances which excuse the looking or listening.</p> <p>4. Negligence, § 250*—when finding as to want of due care disturbed. While a court of appeals should be careful in disturbing verdicts for want of due care upon the part of the person injured, yet when it appears from the evidence that there are no circumstances or surroundings of any kind that would excuse the looking or listening, and that to have looked or listened the injury could have been avoided, the court will hold that such failure to look or listen shows a want of due care.</p>

<p>1. Workmen’s Compensation Act, § 12*—what is effect of plea of general issue in action at common law. In an action by a mine employee against his employer for failure of the. employer to furnish the plaintiff a safe place in which to work, a plea of the general issue held to impliedly concede that defendant was not operating under the Workmen’s Compensation Act.</p> <p>2. Appeal and error, § 369*—when objection that action should have been brought under Workmen’s Compensation Act may not be raised. Where an employer, against whom an employee has brought an action at common law for failure of the employer to furnish the plaintiff a safe place in which to work, went to trial upon a plea of not guilty and offered instructions upon that theory, without raising the question as to the right of that court to proceed with such trial, held that such employer upon review after an adverse finding upon the issues could not raise the question that the action should have been brought under the Workmen’s Compensation Act.</p> <p>3. Mines and minerals, § 176*—when evidence is insufficient to show knowledge by mine operator of dangerous condition of roof. Evidence held not to show that defendant or its officers knew that certain rock in defendant’s mine which afterwards fell and injured plaintiff was loose and liable to fall any time before it did fall, or that defendant by the exercise of reasonable care could have known it was loose or that conditions were such as to require defendant to prop and secure the roof where such rock was.</p> <p>4. Mines and minerals, § 89*—what is duty of coal mine operator as to furnishing miner with props and timbers. It is the duty of the coal operator under Rev. St. ch. 93, sec. 20, subdiv. 6 (J. & A. If 7494), providing as to duties of mine manager, to furnish the miner with props and timbers sufficient to secure the miner’s room and make the same safe.</p> <p>5. Mines and minerals, § 89*—what is duty of miner as to propping and securing working room. It is the duty of a miner under Rev. St. ch. 93, sec. 23, subdiv. (c) (J. & A. If 7497), providing as to duties of miners, to properly prop and secure the room in which he works.</p>

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

<p>Abstract of the Decision.</p> <p>1. Railroads, § 733*—when evidence sufficient to show striking of person upon street. Evidence held sufficient to warrant the finding that plaintiff’s intestate was struck by defendant’s train upon the public street.</p> <p>2. Railroads, § 733*—when evidence is sufficient to show negligence in operation. Evidence of plaintiff held to warrant the finding that defendant was running its train at a greater rate of speed than permitted by the city ordinance and did not ring the bell on its engine as required by the ordinance.</p> <p>3. Appeal and error, § 1410*—when findings not disturbed on appeal. Where the evidence was conflicting, but sufficient to warrant the findings, and such findings were not against the manifest weight of the evidence, held that the findings should not be disturbed.</p> <p>4. Negligence, § 90*—necessity of lack of contributory negligence. The exercise of due care by a decedent for his own safety at the time he sustained the injuries from which his death resulted is vitally important to a recovery of damages for such death.</p> <p>5. Death, § 41*—when presumed that deceased was exercising due care at time of receiving injuries. Evidence by two witnesses who had known plaintiffs intestate for some time, and had associated with him, that he was a careful man, valued his life highly, and was accustomed to look out for trains before crossing railroad tracks, held to create a presumption that he was in the exercise of due care for his own safety at the time he sustained the injuries complained of.</p> <p>6. Railroads, § 667*—what is duty of person attempting to go upon track. It is the duty of a person attempting to pass upon a railroad track to ascertain if there are any trains approaching.</p> <p>7. Railroads, § 738*—when evidence shows lack of excuse for not looking before passing upon railroad track. Evidence held to show nothing to excuse plaintiffs intestate from looking and listening before passing upon defendant’s railroad track where he was injured by a passing train.</p> <p>8. Railroads, § 678*—when person attempting to cross track is guilty of contributory negligence. Where there was nothing to excuse a person who was attempting to cross a railroad track from looking and listening for approaching trains, and had he looked and listened he could undoubtedly have, seen and heard the approach of the train which struck him, held that his failure to look and listen was contributory negligence.</p> <p>9. Death, § 41*—when presumption as to exercise of due care is overcome. Where the only evidence that plaintiffs intestate was in the exercise of due care for his own safety at the time he sustained the injuries complained of was as to his habits, and the facts and circumstances proven showed he could have seen and heard the approach of the train which injured him and did not, held that the presumption created by the evidence as to his habits that he was in the exercise of due care was overcome.</p>

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

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

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

<p>1. Judgment, § 654*—what plea in action on at common law is insufficient. In action on a judgment, a plea merely of payment without including also satisfaction of the judgment was insufficient at common law.</p> <p>2. Judgment, § 654*—when plea is insufficient in action on. In action on a judgment for a certain sum, a plea that defendant had paid plaintiff such amount of damages recovered by plaintiff, without averring that the amount was received by the plaintiff in satisfaction and discharge of the judgment or was so applied, held insufficient.</p> <p>3. Judgment, § 636*—when plea of satisfaction is insufficient. In action on a judgment recovered by a minor suing by next friend, a plea of payment to the attorney of record for the next friend and satisfaction and discharge of the judgment by such attorney, held insufficient.</p> <p>4. Guardian and ward, § 52*—who may satisfy judgment recovered by minor suing by next friend. Satisfaction and discharge of a judgment recovered by a minor suing by next friend can only be made by the regularly appointed guardian of such minor.</p> <p>5. Judgment, § 636*—when plea of satisfaction of judgment recovered by minor suing by next friend is insufficient. In action on a judgment recovered by a minor suing by next friend, a plea of payment to the father of such minor in satisfaction and discharge of the judgment and that the father had applied the money in supplying the minor’s necessaries of life, held insufficient, as the father was guardian only of the person of the minor and not of the minor’s property.</p>

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

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

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

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

<p>Appeal from the County Court of Madison county; the Hon. Henby B. Eaton, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. ' Chabees H." Mieles, Judge, presiding. Heard in this court at the . October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations, § 1098*—when evidence sufficient to show negligence in failing to remove projecting pipes at edge of sidewalk. Where certain steel pipes projected about six inches above a sidewalk at its outer edge on a public street of a city and were allowed by the city to so remain for several years, held that a finding that such condition was a menace to persons traveling over the walk and had existed for such a length of time that the city should take notice thereof and remedy it was justified, in an action to recover damages for injuries sustained thereby.</p> <p>2. Municipal corporations, § 1098*—when evidence sufficient to show that pipes projecting above sidewalk are dangerous. The fact that a person traveling on a public sidewalk in the usual manner of traveling upon meeting another person and attempting to pass tripped on a steel pipe projecting six inches above the walk and fell and injured herself, held to justify a finding that such pipe was a menace to persons traveling on the walk, notwithstanding such pipe may have been just outside the walk in close proximity to it.</p> <p>3. Municipal corporations, § 1098*—when evidence sufficient to show due care of pedestrian tripping on projections above sidewalk. Evidence held to sustain finding that plaintiff was in the exercise of due care for her own safety at the time she tripped on certain pipes projecting about six inches above defendant’s sidewalk, notwithstanding she had passed over the walk frequently and had never observed the pipes.</p> <p>4. Municipal corporations, § 1226*—necessity of service of notice of injury on licensed attorney. Service of notice of injury upon the attorney of a city before bringing an action against the city required by the statute must be upon a licensed attorney.</p> <p>5. Municipal corporations, § 1226*—who may not be served with notice of injury. Service of notice of injury upon the attorney of a city before bringing an action against the city required by the statute cannot be made upon an assistant city attorney.</p> <p>6. Municipal corporations, § 1226*—when service of notice of injury is properly made upon city clerk. Where a city had as city attorney one who was not a licensed attorney, held that service of notice of injury before bringing suit against the city required by the statute was properly made upon the city clerk.</p>

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

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

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

<p>1. Appeal and error, § 1034*—what mTl be judicially noticed. The Appellate Court will take judicial notice that a certain judge of the Circuit Court continued to hold office until the expiration of his term.</p> <p>2. Appeal and error, § 857*—when certificate of evidence is not properly signed by other than trial judge and filed. Where a certificate of evidence was presented to the judge trying the case within the time fixed in the order allowing an appeal, but was signed and sealed by another judge some time after said time had expired, with no order extending such time, and no reason appearing why the trial judge, whose term of office had not expired, did not sign the certificate or why the other judge did, held that such certificate was not properly signed and filed under the Practice Act, sec. 81 (J. & A. If 8618), providing that in case the trial judge is unable by reason of death, sickness or other disability to sign a certificate of evidence, the judge succeeding him or any other judge of the court may sign same.</p> <p>3. Appeal and error, § 862*—when certificate of evidence may be filed nunc pro tunc as of time fixed by order. A certificate of evidence must he filed within the time fixed by the court granting the order therefor, and if presented but not signed within such time, the party presenting same is entitled to an order nunc pro tunc directing its filing as of the time prescribed in such order.</p> <p>4. Appeal and error, § 862*—what is essential to sustaining of nunc pro tunc order for filing of certificate of evidence. To sustain a nunc pro tunc order for the filing of a certificate of evidence, there must be sufficient in the record itself to show affirmatively that the trial judge was authorized under the law to enter it.</p> <p>5. Appeal and error, § 862*—what delay in filing certificate of evidence must he explained. Irrespective of the statute, a party prosecuting a writ of error cannot by presenting an incomplete or a complete certificate of evidence to the trial judge within the time prescribed by the order of the court afterwards hold the certificate for more than two years before filing it, without an affirmative showing of some very good reason for so holding it.</p> <p>6. Account, § 35*—when.equities' with defendant in suit for accounting for commissions. Evidence held to show that the equities of the case were with defendants, in suit for accounting and injunction to recover for certain commissions claimed growing out of a certain contract.</p>

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

<p>Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1916.</p>

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

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George E. Crow, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquobs, § 225*—when evidence sufficient in action by wife for injury to means of support. Evidence held to tend to show that two of the defendants charged with' selling intoxicating liquors as a result of which plaintiff’s husband was killed, in an action by a wife to recover damages for injury to her means of support, under section 9 of the Dramshop Act (J. & A. j[ 4609), were guilty, and refusal to direct a verdict as to such defendants was proper.</p> <p>2. Intoxicating hquobs, § 225*—when evidence sufficient to show that purchaser did not drink liquor. Evidence held to show plaintiff’s husband did not drink any of the liquor procured by him from one of defendants, in an action to recover under section 9 of the Dramshop Act (J. & A. -j[ 4609), and refusal to direct a verdict for such defendant was error.</p> <p>3. Intoxicating liquobs, § 240*—when exemplary damages recoverable for sale of liquors. To warrant recovery of exemplary damages under section 9 of the Dramshop Act (J. & A. If 4609), the sale of liquors must have been wilfully or wantonly made.</p> <p>4. Intoxicating liquobs, § 240*—when sale is wilful and wanton. A sale of intoxicating liquor to a party known by the seller to be intoxicated or a habitual drunkard, is in its nature wilful and wanton, so as to authorize the recovery of exemplary damages.</p> <p>5. Intoxicating liquobs, § 238*—who may recover exemplary damages for sale of liquor. The right to recover exemplary damages, in an action under section 9 of the Dramshop Act (J. & A. H 4609), is not limited to sales of intoxicating liquors to persons to whom the plaintiff may sustain some relationship as father, husband, wife or child.</p> <p>6. Intoxicating liquobs, § 250*—when instruction on exemplary damages is erroneous. In an action under section 9 of the Dram-shop Act (J. & A. 1f 4609), by a wife' to recover for injury to her means of support, an instruction as to allowance of exemplary damages held erroneous in not explaining the meaning of the term or when or how such damages might be allowed.</p> <p>7. Pleading,' § 248*—when amendment to declaration properly allowed. Allowance of an amendment of a declaration, after overruling a motion for a new trial, in accord with, the evidence and conduct of the trial, held not error.</p> <p>8. Intoxicating liquobs, § 208*—when evidence that person was known to be drunkard is admissible. In an action under section 9 of the Dramshop Act (J. & A.'K 4609), where the declaration charged wilful sales of intoxicating liquor to a certain person and that such person was a habitual drunkard, evidence that such person was such' drunkard and that the fact was known to defendants, held properly admitted, in connection with a claim for exemplary damages.</p> <p>9. Intoxicating liquobs, § 249*—when modification of instruction is improper. A modification to an instruction by adding the words “as to such sale” at the end of the instruction as tendered, in an action under section 9 of the Dramshop Act (J. & A. fl 4609), held improper where the evidence showed but one sale of liquor.</p> <p>10. Instructions, § 18*—when properly refused. An instruction which is involved and misleading is properly refused.</p> <p>11. Instructions, § 151*—when property refused. An instruction already covered hy a given instruction is properly refused.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Trial, § 195*—when refusal to direct verdict for defendant is proper. Where the evidence tended to sustain the averments of the declaration, refusal to direct a verdict for the defendant, held not erroneous.</p> <p>2. Railroads, § 941*—when instruction in action for allowing grass to accumulate on right of way and spreading of fire is erroneous. An instruction, in an action against a railroad company charging negligence in allowing large quantities of dry grass to accumulate on its right of way, that same were ignited by fire from its. engine and such fire spread to and destroyed plaintiff's straw, hay, etc., that if the jury believe from the evidence that the plaintiff sustained damage defendant would be liable for such damage and that they should add thereto plaintiff’s reasonable solicitor’s fees, held erroneous, in omitting to submit the question of defendant’s liability under the pleadings to the jury, and in directing the addition of such fees, as plaintiff would not be entitled to such fees unless he showed defendant had allowed accumulation of combustible material on its right of way, and that the fire complained of was set out on the right of way and by reason thereof spread to plaintiff’s premises.</p> <p>3. Trial, § 199*—when direction of verdict is erroneous. Where the evidence was conflicting upon a question of fact, an instruction directing a verdict is erroneous.</p> <p>4. Appeal and error, § 1628*-—■when error in instruction not curable. An instruction which was substantially erroneous in directing a verdict where the evidence was conflicting is not curable by other instructions.</p> <p>5. Railroads, § 939*—when contributory negligence in not fighting fire is question for jury. Whether plaintiff, in an action against a railroad company for the negligent firing, and resulting destruction, of plaintiff’s straw, hay, etc., from defendant’s engine, was negligent in not fighting such fire, held a question for the jury.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 1173*—what question reviewed where no propositions of law were presented or objections to evidence made. Where no propositions of law were presented by either party and no objections were made to evidence offered by either party, held that the only question for review would be whether the finding and judgment were against the manifest weight of the evidence.</p> <p>2. Contracts, § 374*—when plaintiff must prove ability and readiness to perform contract for instruction of student. Where plaintiff entered into a certain contract to furnish defendant certain instruction in law in consideration of a certain total payment to be made by defendant in monthly instalments, and defendant refused, after making the first payment, to receive the first instalment of such instruction, held that plaintiff could not recover in an action for the full amount of such consideration without proving its ability and readiness to perform the contract on its part.</p> <p>3. Contracts, § 267*—what are remedies of party upon receipt, before performance, of notice of intention not to perform. Where one party to a contract gives notice before the time of performance arrives that he does not intend to perform, the other party may treat such notice as a breach and bring his action, or may decline to accept such notice as a breach and insist that the contract shall remain in force up to the time fixed for its final performance, holding the party refusing to perform responsible for the consequence of such refusal.</p>

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

<p>1. Appeal and error, § 1673*—when right to assign ■ error on issue made by plea in abatement is not waived. Where, in an action against a nonresident fraternal association, the return of process showed service on the grand lodge by service on the treasurer of a local subordinate lodge, and defendant appeared specially and by plea in abatement denied that the person served was treasurer, etc., or any other agent of defendant, and that such subordinate lodge was its agent, and an issue of fact was formed on the plea and tried without a jury, and the court found for plaintiff, and in accordance with section 45 of the Practice Act (J. & A. If 8582) entered judgment of respondeat ouster against defendant, and defendant thereafter by leave of court filed the general issue and special pleas, and plaintiff contended that by pleading to the merits after such judgment, defendant waived its right to assign error on the finding as to the issue made on the plea in abatement, held that such contention invoked the common-law rule, which had no application in view of the fact that the plea raised one of the issues enumerated in said section 45, and the court having found the issue against defendant, it properly entered such a judgment, and defendant had the right to plead over to the merits.</p> <p>2. Insurance, § 862*—who is agent of nonresident organization for purpose of service of process. In an action against a nonresident fraternal organization to recover on a benefit certificate, where it was contended that service of summons on the treasurer of one of the subordinate lodges was not made on him as treasurer of the defendant, the constitution and general rules considered and held that such subordinate lodge was an agent of defendant, and that service on such treasurer was service on the subordinate lodge itself, as agent of the grand lodge.</p> <p>3. Appeal and error, § 1673*-—when right to assign error on ruling adverse to plea in abatement is not waived. The right to assign error on a ruling adverse to a plea in abatement is not waived by pleading to the merits.</p> <p>4. Insurance, § 120*—when contracts construed in favor of insured. It is a fundamental law of construction of insurance contracts in Illinois that all uncertainties in such contracts shall be resolved in favor of the assured.</p> <p>5. Insurance, § 717*—when constitution of order construed as allowing recovery for permanent disability other than that specifically named. In an action against a fraternal association to recover on a benefit certificate, where the injury sustained necessitated the amputation of one toe, which cbncededly caused a permanent disability, but defendant contended that the evidence failed to show that plaintiff sustained one of the injuries mentioned under a certain section of the constitution of the Order, and that therefore he could not recover on the certificate, but was required to submit his claim solely under another section relating to systematic benevolence, held that the words “but not otherwise,” following the specific enumeration of what would be considered a total disability, referred to the furnishing of the proofs in such cases, and did not have the effect' of excluding liability for all other forms of permanent injury.</p> <p>6. Insurance—when excuse for failure to file copy of certificate is shown. In an action upon a benefit certificate, where the refusal to grant a continuance on the ground of the absence of a copy of the certificate sued on was complained of, and where it appeared that the certificate had been in the possession of the defendant prior to and since the commencement of the action, held that an excuse for filing of a copy of the instrument was shown.</p> <p>7. Insurance, § 913*—when point that injury occurred before acceptance of certificate may not be raised. In an action on a benefit certificate in which there was a finding for plaintiff, and on appeal the point was made that the certificate sued on, being dated September 1st, was not accepted by the assured until the 14th, and the injury occurred on the 10th, held that as the question was not raised in the trial court it could not be raised for the first time on appeal.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 258*—when evidence of prior accidents is admissible in action against landlord for injuries due to defective covering of coalhole. In an action against the trustee of an estate to recover damages for injuries sustained by plaintiff as the result of stepping on a loose iron lid covering a coalhole in a public sidewalk, held that evidence that prior to the renting of the premises to the tenant, who was in occupancy at the time of the accident in question, different persons had stepped into such coal-hole because the lid was loose, notice of which had been brought to the defendant, was competent as tending to show the unsafe or defective condition of the coalhole.</p> <p>2. Landlord and tenant, § 258*—when evidence sufficient to show that condition was same as at time of prior accidents. In an action against the trustee of an estate to recover damages for injuries sustained by plaintiff as the result of stepping on a defective lid covering a coalhole in a public sidewalk, where the evidence was conflicting on the question whether, when the premises were rented to the tenant, the coalhole was in the same condition as at the time prior accidents occurred, held that the finding of the jury in favor of plaintiff would not be disturbed.</p> <p>3. Landlord and tenant, § 260*—when instruction in action for injuries is in conformity with evidence. In an action against the trustee of the owner of premises to recover for injuries sustained by plaintiff as the result of stepping on a loose coalhole cover, where there was a conflict in the evidence as to whether the dangerous condition of the coalhole existed with the knowledge of the defendant at the time of renting the premises to the tenant in occupancy at the time of the accident, and where the defendant contended that an instruction that if the jury found that defendant was guilty of the negligence charged in either count of the declaration, and that plaintiff suffered damage as charged, and that plaintiff was exercising due care, the verdict should be for plaintiff, was erroneous as it permitted recovery on either count though there was no evidence to sustain the first count, held that under the evidence in the case there was no error in the giving of such instruction.</p> <p>4. Appeal and ebbob, § 1241*—when giving of erroneous instruction may not be complained of. The giving of an instruction based on an incorrect theory cannot be complained of where several instructions given on behalf of the party complaining were based on the same theory.</p> <p>5. Damages, § 120*—when verdict for personal injuries is not excessive. A verdict for $2,000, held not excessive for injuries to a tailor earning $20 per week and who also earned from $100 to $200 per year playing in a hand, where although it was not clear as to whether the injuries were permanent, it appeared that they were severe and affected the kidneys and the nervous system, and resulted in decrease of weight, entire loss of salary for five weeks, and the reduction of earnings to $10 per week for five months, and at the time of the trial, two years after the accident, the plaintiff’s breathing was still affected so that he could not play in the band, and he had expended over $150 in endeavoring to be cured.</p> <p>6. Damages, § 241*—when verdict not disturbed because excessive. The question of damages in an action for personal injuries is a question for the jury, and unless the reviewing court can say that in assessing the damages the jury have been governed by prejudice or passion, such court is not warranted in setting the verdict aside on the ground of excessiveness.</p>

<p>1. Corporations, § 487*—who is not an agent of a corporation for purpose of service of process. In an action against a corporation, where service was had by delivering a copy of process to a person as “office manager,” where it appeared that the assets of the defendant' had been turned over to a creditors’ committee to be disposed of for the benefit of creditors, and that the committee placed a person in charge, who in turn employed the person to whom process was delivered, held that the person to whom process was delivered was employed by the creditors’ committee and not by the defendant, and was therefore not an agent of the defendant, and that the attempted service was void.</p> <p>2. Appeal and erbok, § 1236*—when defendant not precluded from questioning validity of service. Where, in an action against a corporation, the defendant entered a limited appearance, and the jury tried the issue as to whether the attempted service of summons on the defendant was valid or not, and plaintiff contended that the defendant was precluded from raising the point because it had participated at the hearing and cross-examined witnesses, held that as the evidence of both parties was directed to the issue of service and to none other, the contention that the defendant was precluded was untenable.</p> <p>3. Appeal and ebbob, § 1392*—when evidence need not he carefully weighed on appeal. It is not necessary for the Appellate Court to accurately weigh evidence in order to determine whether or not the trial court erred in directing the jury to find for plaintiff.</p> <p>4. Cobpobations, § 487*—who are agents for purpose of service of process. To obtain service on a corporation through its officers or agents, such agents must be appointed by the corporation and representing it in some line of employment authorized by its charter.</p> <p>5. Trial, § 199*—when verdict should not he directed. A verdict should not be directed by the trial court unless the evidence is free from substantial conflict.</p>

<p>Abstract of the Decision.</p> <p>1. Banks and banking, § 119*—when evidence sufficient in action hy hank to recover money entered on pass hook hy mistake. In an action by a bank to recover money which through mistake had been entered on the pass book of defendants, where it appeared that the amount was deposited by another depositor and the error was not discovered until almost a year after it was made, and after the partnership of the defendants had been dissolved, their business sold out and the balance checked out to their credit, evidence held sufficient to sustain a verdict in favor of plaintiff.</p> <p>2. Assumpsit, Action of, § 48*—when for money had and received lies. Money paid by one to another by mutual mistake of facts may be recovered back in an action of assumpsit under the count for money had and received.</p> <p>3. Assumpsit, Action op, § 44*—when for money had and received lies. Assumpsit for money had and received may be maintained whenever the defendant has obtained money belonging to the plaintiff which in equity and good conscience he has no right to retain, as in such case the law implies a promise to pay.</p> <p>4. Banks and banking, § 119*—when deposit slip is admissible in action by bank to recover money erroneously credited in pass book. In an action by a bank to recover money credited by mistake to a depositor in his pass book instead of entering such deposit in the book of the depositor who made the deposit, held that the deposit slip showing a deposit by such other depositor was properly admitted in evidence, it being a part of the. res gestw.</p>

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

<p>1. Penalties, § 8*—when debt does not He for recovery. In an action of debt to recover the fine imposed by section 4 of the Act to provide for wash rooms in certain employments, etc., in force July 1, 1913 [Cal. Ill. St: Supp. 1916, ¶ 5417,(36)], and providing that upon failure to comply with the provisions of the act any owner or employer shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined, where a judgment was entered against the defendant, the owner of a coal mine, and where the question was whether the penalty could be recovered in an action of debt, said section construed and held that before the amount of the penalty could be ascertained, the owner or employer must first be-found guilty of a misdemeanor, and that therefore an action.of debt would not lie.</p> <p>2. Penalties, § 7*—what are remedies for recovery of statutory penalty. At common law an action of debt is the proper remedy for the recovery of a statutory penalty, and where the statute does not in terms declare in whose name the suit shall be conducted, such action must be instituted in the name of the People; but where the statute provides that the violator upon failure to comply with the provisions of the act shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined, the provisions of such act can only be enforced by information or indictment.</p> <p>3. Corporations—criminal liability for violation of penal statute. A corporation is subject to prosecution by information for the violation of a penal statute.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 430*—when question of contributory negligence immaterial except as bearing upon amount of damages. In an action for personal injuries by a .flagman against a railroad, where there were two counts to the declaration, the second jof which alleged that the defendant was engaged in interstate commerce and that plaintiff was employed in such commerce, and where it appeared that plaintiff was injured by being struck by a train which was being operated on a track upon which plaintiff was walking, and defendant contended that plaintiff was guilty of contributory negligence and therefore not entitled to recover, held that as plaintiff could recover only under the second count, if at all, the Federal Employers’ Liability Act applied, and therefore even if plaintiff had been guilty of contributory negligence, such fact would only be material as affecting the amount of damages.</p> <p>2. Master and servant, § 98*—what proof must be made as to negligence in action under Federal Employers’ Liability Act. In an action for damages for personal injuries brought under the Federal Employers’ Liability Act, section 3 of which provides that contributory negligence shall not bar recovery, but shall diminish the damages in proportion to the amount of negligence attributable to the employee, it is only necessary to prove that the injury was the result, in whole or in part, of negligence on the part of the employer.</p> <p>3. Master and servant, § 98*—when federal law governs. Where both master and servant are engaged in interstate commerce at the time of an injury to the servant, the rights and liabilities of the parties are to be governed exclusively by the Federal Employers’ Liability Act.</p> <p>4. Master and servant, § 695*—when evidence sufficient to show that timely toarning of approach of train was not given. In an action under the Federal Employers’ Liability Act by a flagman to recover for personal injuries, received as the result of being struck by a train, evidence held sufficient to show that timely warning of the approach of. the train was not given.</p> <p>5. Appeal and error, § 1413*—when verdict should not ordinarily be set aside. Where two juries have found the issues the same way on conflicting evidence, the trial or Appellate Courts should he slow to set aside the verdict of the jury.</p> <p>6. Master and servant, § 98*—what must be proved in action wider Federal Employers’ Liability Act. In order to sustain an action to recover under the Federal Employers’ Liability Act, it is necessary for the plaintiff to prove that he was employed by the defendant.</p> <p>7. Appeal and error, § 1523*—when instruction is not prejudicially erroneous. In a personal injury case based on the Federal Employers’ Liability Act, held that the giving of an instruction which was based on section 1 of the Act, which was abstract in form and did not set out the whole section, was not prejudicial error.</p>

<p>1. Master and servant, § 98*—when actions must be brought under Federal Employers’ Liability Act. The Federal Employers’ Liability Act has superseded the State statute wherever applicable, and all actions thereunder must be brought within two years from the date of the injury.</p> <p>2. Master and servant, § 532*—what constitutes new cause of action. In a personal injury case, where the original declaration contained two counts alleging that the injury was caused by a fellow-servant, and the only difference in the counts was that one alleged that the defendant had elected not to provide and pay compensation under the Workmen’s Compensation Act and the other set forth such election, and both counts alleged that plaintiff was not engaged in interstate commerce at the time of the injury, and more than two years after the accident said two counts were withdrawn and two new counts were filed which were the same as the original except that they alleged that plaintiff was engaged in interstate commerce at the time of the injury, and defendant pleaded the statute of limitations, held that the declaration filed after the expiration of two years from the time the injury occurred stated a new cause of action, warranting the overruling of plaintiff’s demurrer to the plea of the statute of limitations.</p> <p>3. Master and servant, § 98*—what must be averred and proved to bring case within Federal Employers’ Liability Act. In order to bring a case under the Federal Employers’ Liability Act, it is as necessary to allege and prove that the carrier is engaged in interstate commerce and that the person injured was engaged in such commerce as it is necessary to allege and prove any facts connected with the injury itself.</p>

<p>1. Sales, § 329*—when evidence sufflcent to show that articles purchased did not correspond with sample and were inferior thereto. In an action to recover for a lot of jewelry which had been sold to defendant by a salesman of plaintiff, which was set forth in a printed inventory, and where the prospective purchaser was required to take the whole list of articles named in the inventory, if he took any, and the order was forwarded to and accepted by plaintiff, and, upon the jewelry being received by defendant, he opened the package, examined the contents and then repacked and shipped the goods back to plaintiff, who refused^ to receive them, and defendant produced testimony to show that the jewelry sent to him did not correspond with the samples shown him by the salesman, but was inferior thereto, and the salesman was not called as a witness, the evidence being uncontroverted, except by proof that the salesman was furnished with samples selected indiscriminately from plaintiff’s stock, held that the jury could not reasonably do otherwise than sustain the claim of defendant.</p> <p>2. Sales, § 326*—when parol evidence is admissible to explain written order. In an action to recover for a lot of jewelry which had been sold to the defendant by a salesman of the plaintiff, where there was a printed contract, and defendant produced testimony that the jewelry sent him did not correspond with the samples shown him by the salesman and was inferior thereto, and plaintiff contended that it- was error to admit the testimony as to what occurred when the order was given, as thus a written contract was attempted to be altered by parol, held that as the contract in question did not describe the articles purchased with sufficient clearness so that the purchaser could know what he was to receive in the absence of the samples, such evidence was properly admitted as only tending to make the written order clear.</p> <p>3. Evidence, § 338*—when extrinsic proof is admissible to identify subject-matter of' contract. Extrinsic proof is always competent to identify the subject-matter of a contract, if necessary, and to admit it, in no way violates t^ie rule that parol testimony is never admissible to contradict or vary the terms of a written contract.</p> <p>4. Costs, § 4*—when discretion of court not abused. Where in a case before a justice of the peace there was a judgment in favor of the defendant on his set-off for $1.20, and on appeal the judgment was again in favor of the defendant but no set-off was allowed, and plaintiff contended that it was therefore error to tax all costs against him, held that such matter was largely discretionary, and, considering the smallness of the set-off, there was no abuse of that discretion.</p>

<p>1. Insurance, § 164*—when question of reasonableness of assessment is for jury. In an action against a mutual life insurance company to recover for fire loss, where the defense was that plaintiff was in default in the payment of an assessment at the time of the fire, and where plaintiff claimed that the assessment was illegal on the ground of being excessive, held that the question as to whether the amount of the assessment was reasonable was one of fact for the jury.</p> <p>2. Insurance, § 163*—when determination of amount of assessment by mutual fire insurance company is mthin discretion of directors. In an action against a mutual fire insurance company to recover for fire loss, where the defense was.that plaintiff was in default in the payment of an assessment at the time of the fire, and plaintiff claimed that the assessment was void on the ground of being excessive, section 12 of the Act in reference to county fire insurance companies (J. & A. If 6348), providing for the making of assessments^ considered, and held that the directors might exercise a°reasónable discretion in determining the amount necessary to be raised.</p> <p>3. Insurance, § 166*—when evidence sufficient to show fire insurance assessment is reasonable. In an action against a mutual fire insurance company to recover for a fire loss, evidence held sufficient to show that an assessment, which it was claimed plaintiff had not paid, was reasonable.</p> <p>4. Insurance—what is nature and purpose of mutual fire insurance company assessment to pay loss. In an action against a mutual fire insurance company to recover for fire loss, where the defense was that plaintiff was in default in the payment of an assessment at the time of the fire, and plaintiff claimed that the assessment was void for the reason that the assessment was simply a call for the payment of a part of the premium note given by plaintiff, and was not an assessment upon all property to the amount for which the several pieces of property were insured, taken in connection with the rate of premium under which it might be classified, section 13 of the Act in reference to county fire insurance (J. & A. 1f 6349) providing that every member of the insurance company shall be notified of the sum due from him, and Section 14 (J. & A. 1f 6350) authorizing the bringing of an action in case of failure to pay, and section 9 (J. & A. If 6345) allowing the company to classify the property insured under different rates according to the hazard of the risk, considered, and held that the plaintiff’s contention was untenable, as it was evident from the statute that the assessment was not intended to be in rem or a lien on or collectible out of the insured property, but only as a personal liability of the policy holder.</p> <p>5. Insurance, § 162*—what is effect of failure to make payment of mutual fire insurance assessment in time. Where a member of a mutual fire insurance company fails to make payment oí an assessment within the time prescribed, if the action of the directors in making the assessment was authorized by law, such member cannot recover for any loss sustained by him.</p> <p>6. Insurance—when mutual fire insurance assessment is void. Where the managers of a'mutual fire insurance company in the making of an assessment go beyond all reasonable limits and make such assessment largely in excess of the amount required to pay the loss, the assessment will be void and may be disregarded by the members.</p> <p>7. Insurance—when mutual fire insurance assessment is in compliance with law. In an action against a mutual fire insurance company to recover for loss, where the defendant refused payment on the ground that an assessment had not been paid by plaintiff, and plaintiff contended that the assessment was not made according to the statute, and where it appeared that the premium note in the policy in question and in all others issued by the company was determined by the amount for which the particular property was insured, taken in connection with the rate of premium under which it was classified, heló, that such assessment was in compliance with the statute.</p>

<p>Abstract of the Decision.</p> <p>1. Instructions, § 126*—when abstract instruction properly refused. An instruction which properly lays down an abstract proposition of law without applying it to the case is properly refused.</p> <p>2. Waters and water courses, § 32*—when instruction on damages in action by dominant tenement owner for damages due to obstruction of flow of water is erroneous. In an action by the dominant owner to recover damages from an adjoining owner of land for causing water to flow back on plaintiff’s land and injure his crops and land, due to the construction of an embankment, where plaintiff complained of the giving of an instruction which required of plaintiff, as a prerequisite to his right to recover, that he prove by a preponderance of the evidence that he had been damaged and that the damage had been occasioned by the unlawful act of the defendant, held that plaintiff did not have to prove actual damages to entitle him to a recovery, and that the court erred in giving such instruction.</p> <p>3. Waters and water courses, § 31*—when instructions on rights of owner of dominant tenement are inapplicable to issues. In an action by the dominant owner to recover damages from the defendant, who was the servient owner, for causing water to flow back on plaintiff’s land, due to the construction of an embankment, where plaintiff complained of the giving of three instructions for the defendant which stated the law applicable to the owner of the dominant estate, held that, although such instructions in a measure stated the law applicable to the owner of the dominant estate correctly, they were misleading and not applicable to the issues, as the defendant, for whom they were given, was the owner of the servient estate; the rights of the servient owner being wholly different from those of the dominant estate.</p> <p>4. Waters and water courses, § 8*—what are rights of owner of upper field as to discharge of water upon lower field. The owner of an upper field has a natural easement to have the water that falls upon his own land flow off the same upon the field below, which is charged with a corresponding servitude in the nature of dominant and servient tenements.</p> <p>5. WIatehs and water coubses, § 32*—when nominal damages are recoverable for obstruction of natural flow of water. If the natural flow of water from the land of an owner is obstructed by the erection of an embankment by an adjoining owner, the owner whose land is obstructed may sue for damages and may recover at least nominal damages, even "though the embankment is constructed on the land of the wrongdoer, and although such owner whose land is obstructed may not have suffered actual damage.</p>

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

<p>Abstract of the Decision.</p> <p>I. Mortgages—when correction of certificate of redemption 6y other than sheriff does not render it invalid. In a chancery proceeding by a mortgagee to set aside a deed obtained by a bank pursuant to its redemption in a foreclosure proceeding, as a judgment creditor, where the mortgagee bought in the premises at a sale, and complainant had obtained its judgment after the period of redemption by the mortgagor, but before the expiration of fifteen months, and had deposited the redemption money with the sheriff, who issued a certificate of redemption to the judgment creditor which did not contain a correct description of the property, but, before recording, such description was corrected in the presence of the sheriff by the attorney for complainant, held that such correction in the certificate did not render it invalid.</p> <p>2. Mortgages—when equities are with defendant on hill hy purchaser on foreclosure to set aside deed to redeeming creditor. On a bill filed by the purchaser' at a mortgage foreclosure sale to set aside a deed to the premises in question, issued by the sheriff to the defendant bank, where it appeared that the defendant bank, as a judgment creditor of the mortgagor, deposited an insufficient amount of redemption money with the sheriff, who issued a certificate of redemption to the defendant bank and advertised the premises for sale; that the amount deposited was $10 less than the full amount due complainant with interest, and did not include the year’s taxes which complainant had paid; that on the evening before the time of sale the attorney for defendant, upon discovering that complainant had paid taxes, informed the secretary for complainant that he would on the succeeding day pay to him a sufficient sum to cover the taxes and any other sum legally due complainant, and such secretary left town on the succeeding day so that the money could not be paid to him, and the $10 error was not discovered until after the filing of the bill, and defendant bank, when the case was called for hearing, made a tender of sufficient money to pay the amount due complainant, but such tender was refused, held that the equities were clearly with the defendant bank and that the decree dismissing the bill for want of equity was proper.</p> <p>3; Mortgages, § 602*—what are rights of purchaser at mortgage foreclosure sale. A purchaser at a mortgage foreclosure sale does not by his purchase acquire title to the land, either legal or equitable, but he has only the right to receive the redemption money, or, in case no redemption is made by the owner of the equity of redemption or by a judgment creditor, to receive a master’s deed at the expiration of the period of redemption.</p> <p>4. Mortgages—what construction given to redemption laws. A liberal construction is to be given to the mortgage redemption laws to the end that the property of the debtor may pay as many of his debts as possible.</p> <p>5. Mortgages—what does not render redemption void. Technical errors, which do not go to the substantial merits of a case, should not render a redemption by a judgment creditor and the subsequent mortgage foreclosure sale void.</p> <p>6. Mortgages, § 596*—when duty lies upon sheriff to execute deed to lower bidder forthioith. On a bill by the purchaser at a foreclosure sale to set aside a deed given by the sheriff to a purchaser at a sale made pursuant to redemption by £t judgment creditor of the mortgagor, where it appeared that a bid slightly higher than that made by the defendant bank was made by a party who, at the hearing of the bill, appeared as one of the attorneys for complainant; that such party was declared the purchaser; that the sheriff gave such party until a certain hour of the day of the sale to pay the money, but before that time delivered the deed to the defendant bank, and no tender of the amount paid by such party who made the higher bid was ever made, held that it was the sheriff’s mandatory duty to execute the deed to the defendant bank.</p>

<p>1. Railroads, § 889*—when instruction on liability of railroad for injury to animal on track is erroneous. In an action against a railroad company to recover for the death of a cow as the result of being struck while trespassing on a track of the defendant, where an instruction was' given that if, by the use of ordinary care and diligence on the part of the servants of a railroad company, animals straying upon its tracks can be saved from injury, then it is the duty of such servants to exercise that degree of care, and a failure so to do if proved, where the injury results without negligence on the part of the owner of the stock, renders the company liable for any damages sustained thereby, held that such instruction did not state the law correctly as applicable to the case, in that it ignored the prerequisite, that before a railroad can be held liable in such a case for failure to exercise ordinary care and diligence it must be shown that the animal was seen or known to be upon the track, and that the giving of such instruction constituted reversible error.</p> <p>2. Railroads, § 784*—when company liable for injury to animal on track. A railroad company is not liable for an injury to an animal trespassing upon its tracks, occurring through the failure of the employees to exercise ordinary care and diligence, unless it is shown that the animal was discovered upon the track and that thereafter such employees could by the exercise of ordinary care and diligence have prevented the injury, or it is shown that said employees were guilty of wilfully and wantonly causing the injury.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1401*—when verdict not disturbed. In an action to recover for damages to an automobile caused in the garage of the defendant, where on appeal from a justice of the peace the defendant filed a set-off for the value of materials and labor furnished by him, and the jury found in favor of defendant on his set-off, held that as the real question in controversy was one of fact, and as there was proof to sustain the’ verdict, such verdict should not be disturbed.</p> <p>2. Appeal and error, § 1525*—when giving of inaccurate instruction is not reversible error. In an action to recover for damages to an automobile caused in the garage of the defendant, where the defendant filed a set-off and the jury found in favor of the defendant on such set-off, held that although an instruction which stated that in order to recover, plaintiff was required to show by a preponderance of the evidence that his property was damaged through the negligence of plaintiff, and that he exercised reasonable caution to prevent such damage, was inaccurate and did not appear to apply to the facts in the case, the instructions as a whole fairly and correctly advised the jury of the law applicable to the facts in proof, and fully stated plaintiff’s theory of the law, and therefore the inaccuracy could not have misled the jury, and the giving of it was not reversible error.</p> <p>* 3. Instructions, § 159*—when sufficient upon consideration as a series. Instructions are to be considered as a single series, and when so considered it is sufficient, if, as a whole they state the law correctly, even though one or more of them standing alone may be erroneous.</p>

<p>Abstract of the Decision.</p> <p>1. Divobce, § 159*—when decree based upon consent of parties as to custody of child not disturbed. On a bill to modify the decree awarded in a prior divorce proceeding between the parties, so that complainant might be relieved from paying the amount decreed for the support of a child and the custody of the child be awarded to him, where it appeared that at the hearing of the divorce case, the parties agreed that if certain letters which the mother, the defendant, had written io the husband were returned to her she would not contest the case; that the letters were returned .and a decree was entered; that the awarding of the custody of the child to the mother, who then resided in another State with the child, was virtually by consent; that both parties were of good repute, and. that the child had a good home and was being well taken care of by its mother who had married again and still resided in such other State, held that, as no good reason had been shown why the care and custody of the child should be changed, the decree dismissing the bill for want of equity should be affirmed.</p> <p>2. Divorce, § 159*—when decree for possession of child in foreign State not disturbed. While a court will not ordinarily permit a child of divorced parents to be removed from the State, still, where the child is, to the knowledge of the court, residing in another State with the mother at the time a decree pending for the possession of the child by the mother based upon an agreement of the parties is rendered, such decree will not be disturbed, where no other good reason exists for such change.</p> <p>3. Divorce, § 39*—when copies of letters forming basis for settlement of divorce case are inadmissible on application for modification of decree. On a bill to modify the decree awarded in a prior divorce proceeding between the parties, so that complainant might be relieved from paying the amount decreed for the support of a child and the custody of it might be awarded to him, where, it appeared that at the hearing of the divorce case, the parties agreed that if certain letters which the mother had written to the husband, and which he claimed were violations of the federal law, were returned to her she would not contest the case; that the letters were returned and a decree was entered; that the awarding of the custody of the" child to the mother, who then resided in another State with the child, was virtually by consent; that complainant contended that all evidence introduced in the divorce case should be admitted at the present hearing, and that therefore the said letters were admissible; that complainant merely offered copies which he had taken of the letters, and that such letters were not introduced in the divorce case, held that the court did not err in refusing to admit such copies.</p> <p>4. Divorce, § 110*—when discretion of court in refusing to modify deoree as to alimony is not abused. On a bill to modify the decree awarded in a prior divorce proceeding between the parties, so that complainant might be relieved from paying the amount decreed for the support of a child of the parties and that the custody of it might be awarded to him, where it appeared that the parties agreed that if certain letters which the mother had written to the husband, and which he claimed were violations of the federal law, were returned to her she would not contest the case; that the letters were returned and a decree was entered; that the awarding of the custody of the child to the mother, who then resided in another State with the child, was virtually by consent, that both parties were of. good repute, and' that the child had a good home and was being well taken care of by its mother who had married again and still resided in such other State, held that the court might well have modified the allowance of alimony, but as that matter was largely discretionary, and as such discretion did not appear to have been abused, the decree dismissing for want of equity should be affirmed.</p>

<p>Abstract of the Decision.</p> <p>1. Trespass, § 40*—what is effect of plea liberum tenementum. In an action of trespass guare clausum fregit against a city to recover damages for constructing a sidewalk along the side of certain land against the objection of plaintiff, where the defendant pleaded liberum tenementum, held that the plea admitted that plaintiff was in possession of the ground and the doing of the acts charged.</p> <p>2. Trespass, § 52*—when instructions on punitive damages improper because of lack of evidence as basis. In an action of trespass guare clausum fregit against a city to recover damages for constructing a sidewalk along the side of certain land against the objection of plaintiff, where the court on a review of the evidence stated that the proof was not clear of the dedication and acceptance of the strip, but where two instructions were given which advised the jury that punitive or exemplary damages could be awarded, held that while it might be that the defendant had no authority to take possession of the ground in question without first invoking the aid of a court, even though a dedication and acceptance were shown, yet there was no proof justifying the giving of such instructions, and that the giving of them constituted reversible error.</p> <p>3. Damages, § 95*—liability of city for punitive. It is scarcely conceivable that a case could be made against a municipal corporation justifying punitive damages.</p>

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

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

<p>1. Evidence, § 249*—when certificate of clerk as to publication of ordinance is sufficient to warrant admission of ordinance. If no provision is made by statute as to the mode of proving an ordinance and "its legal publication,” the certificate thereto must contain a recital as to each step required in its passage and publication; but in view of section 82, ch. 24, Hurd’s Rev. St. 1916 (J. & A. K 1354), providing a different mode of proof, a general statement of publication in the certificate of the clerk is sufficient to render the ordinance admissible in evidence.</p> <p>2. Evidence, § 249*—when certificate of clerk is prima facie evidence of publication of ordinance. In a prosecution for violation of an ordinance, where the sole question was whether the city clerk’s certificate was sufficient to render the ordinance admissible as evidence, and the only objection raised by the defendant was that such certificate did not contain a recital as to the length of time of publication of the ordinance, section 65, ch. 24, Hurd’s Rev. St. 1916 (J. & A. ¶ 1337), providing for proof by the certificate of the city clerk, and section 82 (J. & A. V 1354), specifying the particular mode for proof of .the publication of a city ordinance, considered and held that the said certificate was prima facie evidence of the legal publication of the ordinance.</p>

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

<p>1. Municipal corporations, § 400*—when subcontractor may not recover on contractor's bond. In an action on a bond brought in the name of a city for the benefit of a certain partnership, where it appeared that the bond was given to said city to insure the performance by the contractor of a contract to construct a city hall and lodge building, that the beneficial plaintiffs were subcontractors, and said city filed a written statement that the action was brought without its consent or authority, and requested its dismissal as far as it was concerned, held that as both the bond and contract ran directly to the city and nothing appeared by the terms of either to indicate that they were intended for the benefit of third parties, the plaintiffs, as subcontractors, had no right of recovery under the bond.</p> <p>2. Contracts, § 349*—when third, party may not recover .under contract. In order to entitle a party to recover under the rule of law that a third party may recover under a contract entered into between two other parties for his benefit, it is necessary that such contract should have been entered into for his benefit, and if it appears from the terms of the contract that the contract was solely for the benefit of the parties thereto, such third party cannot recover under its provisions.</p> <p>3. Municipal corporations, § 400*—when declaration in action on contractor’s bond is insufficient. In an action on a bond brought in the name of a city for the benefit of a certain partnership, where it appeared that the bond' was given to said city to insure the performance by the contractor of a contract to construct a city hall and lodge building, that the beneficial plaintiffs were subcontractors, and said city had filed a written statement that the suit was brought without its consent or authority, and the declaration failed to allege that the city had been required to pay any claims for materials furnished by the beneficial plaintiffs, or for any other cause, held that such declaration did not state a cause of action, and the demurrer thereto should have been sustained.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, $ 275*—what are rights of vendee as to returning goods in case of breach of warranty. In the case of an executed contract of sale of personalty, the rule is that unless the contract gives the vendee the right to return the property then, in case of a breach of the warranty, he must retain it and sue for damages, unless the vendor was guilty of fraud or deceit.</p> <p>2. Sales, § 402*—when instruction on vendee's remedies for breach of warranty is inapplicable to facts. In an action to recover the price of á stove purchased by plaintiffs from the defendant, where there was a failure .of warranty, held that a requested instruction which told the jury that a warranty was not part of a contract of sale, except as a part of the consideration received for the price paid, and that the vendee’s remedy upon a sale was on the warranty, without which he had none, and his right of recovery was limited to the amount of depreciation due to the breach, and he could not lawfully compel the vendor to take back the property and return the price paid, was not a correct statement of the law applicable to the facts, as the contract in question by its terms gave the vendee the right to return the property in case of a breach of the warranty.</p> <p>3. Payment, § 3*—what constitutes. In an action to recover the price of a stove purchased by plaintiffs from the defendant, where there was a failure of warranty, and the refusal of an instruction was complained of, which told the jury that if the defendant made a payment of part of the purchase price after having complained of the stove he could not recover, held that although such part payment consisted of the turning over of an account at the time of the purchase, it constituted a payment of the amount thereof on the stove, regardless of when the account was paid.</p> <p>4. Instructions, § 480*—what is province of court as to announcing theory of party and instructing accordingly. It is not error for the court at the request of a party to state to the jury the theory upon which a case is being tried and then announce the law applicable to such theory, and it is the province of the jury to decide whether one theory or another is sustained by the evidence under the law announced by the court.</p> <p>5. Sales, § 401*—when evidence is sufficient to sustain finding for plaintiff on issue of noncompliance with warranty. In an action t& recover the price of a stove purchased by plaintiffs from the defendant, where a failure of warranty was claimed, and it appeared that the stove was to be returned if not as warranted, but the testimony was conflicting as to the nature of the warranty, held that it was for the jury to say which warranty was in fact made, and whether the stove complied therewith, and that the finding of the jury in favor of plaintiff should not be disturbed.</p>

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

<p>1. Corporations, § 25*—when corporation not liable for services of attorneys rendered before incorporation. In an action against a corporation for attorneys’ fees, where the services in question were rendered partly before incorporation and partly thereafter, and no express promise to pay for the services rendered prior to the organization was made by the corporation or its authorized officer, held that plaintiffs were not entitled to recover from the corporation for services rendered prior to its incorporation.</p> <p>2. Corporations, § 25*—what is liability for debts contracted prior to organization. In Illinois a corporation is not liable for debts contracted or services rendered under a contract with the incorporators prior to its organization, unless the corporation promises to pay the same after its organization.</p> <p>3. Conflict of laws, § 22*—what law governs as to liability for services performed in another State prior to organization of corporation. In an action against an Illinois corporation for attorneys’ fees, where the services were partly rendered before and partly after incorporation, and no promise was made Dy the corporation to pay for services performed prior to the organization, and it was contended that as the services were performed in Missouri, where, contrary to the rule in Illinois, recovery against a corporation could be had under the authorities of that State for services performed prior to the organization, held that under the Missouri authorities recovery was permitted for such services for the reasonable value thereof, not under the contract made prior to "the organization but under a contract implied from the acceptance, after the incorporation, of the benefit of the services, but that the Missouri rule was not applicable, as any implied acceptance by the defendant corporation must have occurred in Illinois, and hence the Illinois rule must prevail.</p> <p>4. Conflict of laws, § 12*—what law governs as to enforcement of contract. While the courts of Illinois will enforce contracts made in another State in accordance with the construction given them by the courts of that State, they will not imply a contract from facts out of which no contract can arise under the rules of law adopted by the courts of Illinois.</p> <p>5. Continuance, § 10*—when denial of proper. The denial of a continuance on the grounds of the absence of the president and manager of a defendant corporation, and insufficient time to prepare for trial; held properly refused as the affidavit failed to show that the absence of such president was necessary or unavoidable.</p> <p>6. Appeal and error, § 1793*—when judgment reversed as to all defendants. In an action against a corporation and one of the incorporators to recover attorneys’ fees for services performed partly prior to incorporation and partly after, where there was no promise by the corporation to pay for the services performed prior to its organization, and the judgment was against both defendants, held that as such incorporator could not in any event have been made liable for services performed after the organization of the incorporation, and as the judgment must be against all or none, such judgment must be reversed.</p> <p>7. Appeal and error, § 1793*—when judgment must he reversed as to all defendants. Where, in an action of assumpsit, a judgment is rendered against several defendants and it is necessary to reverse, the same as to one, it must be reversed as to all.</p>

<p>1. Municipal corporations—what ordinance city has no authority to pass. In a prosecution against a druggist for a violation of a city ordinance against keeping or maintaining, within the corporate limits of said city, any place in which any intoxicating liquor was received or kept for sale as a beverage, where it appeared that such druggist had received fifty bottles of whisky at his drug store, but he was not charged with selling it, and the controlling question was whether said city had legal authority to enact such ordinance, clause 46, sec. 1, art. V (J. & A. If 1334) of the Act providing for the incorporation of cities and villages, and giving power to license, regulate and prohibit the selling of intoxicating liquors; and clause 66, giving power to “pass and enforce all necessary police ordinances,” and clause 98, empowering cities to pass all ordinances and make all regulations proper or necessary to carry into effect the powers granted to cities or villages, considered and held that said city had not the authority to pass the ordinance in question.</p> <p>2. Municipal corporations, § 41*—what powers city may exercise. A city can only exercise such powers as are granted to it by the laws of the State, or such as are necessarily implied from those granted it, and the enumeration of powers operates to exclude such as are not enumerated, and if doubt exists concerning the grant of power, the doubt is to be resolved against the municipality.</p> <p>3. Municipal corporations—when power to enact ordinance against sale of intoxicating liquor hy druggist not implied. In a prosecution against a druggist for a violation of a city ordinance providing that whoever should, within the corporate limits of said city, keep or maintain any place in which any intoxicating liquor was received or kept for sale as a beverage, should, upon conviction, be fined, etc., where it appeared that such druggist had received fifty bottles of whisky at his drug store, but he was not charged with selling it, held that the power to enact the ordinance in question was not necessarily or fairly implied in, nor incident ór indispensable to the power to license, regulate and prohibit the selling or giving away of intoxicating liquors.</p>

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

<p>Abstract of the Decision.</p> <p>1. Evidence, § 421*—when value of property need not be established by expert testimony. In an action by the' owner of lots against a railroad company to recover damages sustained by the construction and operation of the railroad of the defendant in front of said lots, where the principal damage claimed was that occasioned by excavation in the street, and it was claimed that plaintiff’s witnesses were not sufficiently acquainted with the value of property in the community in question to qualify them to testify, held that the value of property in such cases need not be established by persons engaged in buying and selling real estate, and as the evidence disclosed that the witnesses had some knowledge of the value of the property and were in some degree qualified, the extent of their knowledge was a matter affecting their credibility and the weight to be given to their testimony.</p> <p>2. Appeal and ebbob, § 1540*—when reference to declaration in instruction is harmless. While the practice of referring to the declaration in an instruction has frequently been criticised, such reference does not constitute reversible error.</p> <p>3. Appeal and error, § 1561*—when refusal of instruction is harmless error. It is not reversible error to refuse an instruction which might properly have been given, where such instruction is substantially covered by other given instructions.</p> <p>4. Railroads, § 224*—when instruction in action to recover for injury to lots due to excavations in construction of railroad is not erroneous. Where, in an action to recover for damage to lots caused principally by excavations in connection with the construction and maintenance of a railroad in front of said lots, an instruction was complained of on the ground of raising an issue as to whether plaintiff’s “legal right” of ingress or egress, as distinguished from her means of egress and ingress, had been damaged, held that the instruction was not susceptible of such technical construction, especially when considered in connection with the facts in proof and the other instructions.</p> <p>5. Instructions, § 87*—when instruction on degree of proof is not erroneous. Where an instruction read as a whole correctly states the law as to the degree of proof required, the fact that portions of it read alone may be open to the objection that the instruction did not require the jury to find the facts therein stated by a preponderance of the evidence, does not render the instruction erroneous.</p> <p>6. Railroads, § 224*—when refusal of instruction on determination of damage to property due to construction of railroad is proper. In an action to recover for damage to lots caused principally by excavations in connection with the construction and maintenance of a railroad in front of the lots, where the defendant complained of the refusal of an instruction telling the jury that any damage to plaintiff’s premises .must be considered as a damage to her property as a whole, and that an inconvenience of ingress and egress to a portion of the premises was not necessarily a damage to the whole of the premises, held that while such statement as an abstract proposition of law had been approved, it was not error to refuse the instruction, for the reason that the property involved was small in area, and all of it was used as one residence property, and therefore a damage to any part would almost necessarily be a damage to the whole.</p> <p>7. IrrsTBTJCTioNS, § 159*—consideration as a series. Instructions must be considered as a series and not singly, and therefore, although instructions in a case may not in every respect be formal and accurate, yet if taken as a whole they fully and fairly advise the jury of the law applicable to the facts in proof, no reason for a reversal will be afforded.</p>

<p>Abstract of the Dedision.</p> <p>1. Automobiles and garages, § 3*—when evidence sufficient to show exercise of due care of pedestrian struck by automobile. In an action by a pedestrian to recover for personal injuries sustained by being struck by defendant’s automobile while plaintiff was crossing at an intersection of public streets, where plaintiff claimed that he looked before crossing and neither heard nor saw the automobile, and where others who were at the crossing at the same time as plaintiff, and some of whom were waiting for a street car, testifled that they heard no warning and that the first they knew or saw of the automobile was when some one “hollered,” and that then they jumped to get out of the way, and where the testimony as to speed and warning was contradictory, held that the proof justified a finding that at the time of the accident plaintiff was exercising due care for his own safety.</p> <p>2. Negligence, § 198*-—when failure to look and listen raises question for jury. The failure to look and listen cannot be said to be negligence per se under all circumstances, and whether a person is at fault in failing to look and listen is a question of fact to be submitted to the jury and shown by proof of the circumstances surrounding each particular case.</p> <p>3. Appeal and ebbob, § 1713*—when errors deemed waived. Errors assigned as grounds for reversal which are not mentioned in the brief and argument will be deemed to have been waived and will not be considered by the court.</p> <p>4. Automobiles and gabages, § 1*—when motor car may not he run at greatest speed limited hy law. A law prohibiting the running of a motor car at a greater speed than ten miles per hour through the closely built up business portion of a city or incorporated village is not a license or permission to run such vehicle at that rate of speed, if that rate is unreasonable under the circumstances of the particular case. ’</p> <p>5. Continuance—when denial of on ground of illness of party while testifying is not error. The denial of a continuance in a personal injury case on the ground that plaintiff fainted or became sick on the witness stand, held not error where there was no contention that such illness was feigned or within the control of plaintiff, and where the court in an instruction warned the jury not to consider the occurrence.</p> <p>6. Automobiles and gabages, § 3*—when instruction in language of speed statute is not erroneous. The giving of an instruction substantially in the language of the statute regulating the speed of motor vehicles upon public highways is not error.</p>

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

<p>1. Schools and school districts, § 178*—when evidence sufficient to show bona fide agreement by parents as to custody of child mth relative in another district. In mandamus proceedings to require a board of education of a school district of a county to admit a child to the public school of that district without the payment of tuition, where it appeared that the child resided without the boundary of said district and about six miles from a city which was within the district, and where such child stayed with its grandmother who resided in such city, under an agreement that the grandmother should have the care of the child until its arrival at twenty-one years or until the grandmother’s death, and it was claimed that such agreement was not made in good faith, evidence held sufficient to show that the agreement was made in good faith and not for the purpose of avoiding payment of the tuition.</p> <p>2. Domicile—what is of minor child. During the lifetime of the parents their domicile is the legal domicile of their minor child.</p> <p>3. Schools and school districts, § 175*—when residence in a district other than that in which parents live is sufficient to entitle child to admission to school. In mandamus proceedings to require a board of education of a school district of a county to admit a child to the public school of that district without the payment of tuition, where it appeared that the child resided without the boundary of said district and about six miles from a city which was within the district and that such child stayed with its grandmother who resided in such city, under an agreement that the grandmother should have the care of the child until its arrival at twenty-one years or until the grandmother’s death, and it was claimed that such agreement was not made in good faith, and that, even if made in good faith, the child was not entitled to attend said school without the payment of tuition because it had no legal domicile in the district, such domicile being the domicile of its parents, held that it was not essential to the right of the child to attend the public schools that it should have a legal domicile in the place where the school was held, and that the only requirement, as far as residence was concerned, was dwelling in the school district, and that therefore such child was entitled to attend the said public school without the payment of tuition.</p> <p>4. Schools and school districts, § 145*—when officers not liable for costs. Parties who defend a suit as school officers are not liable for costs.</p>

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

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

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernbeuter, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>1. Ferries—when evidence is sufficient to show operation of ferryboat. Evidence that a water company, which owned part of an island in a river on which its plant was located, used a cable ferryboat, which was used by the persons owning the rest of the land on the island, in transferring coal and other things across to its waterworks, and paid two-thirds of the expense incurred in the operation of the boat, held sufficient to show that such company was actually engaged in the operation of the boat.</p> <p>2. Negligence, § 24*—what duty owed to servants of independent contractor. The owner of premises is under the same obligation to use reasonable care for the protection of servants of an independent contractor who are invited upon the premises as he would of servants employed by himself to do the work.</p> <p>3. Negligence, § 26*—when owner is not liable for injury to servant of independent contractor. While a servant of an independent contractor who is employed by the owner of premises is not a mere licensee upon premises of the owner and the owner is bound to exercise reasonable care for his safety while upon the premises, yet where there is a dangerous condition existing which is known to the owner of the premises and not to the servant, a liability will attach, but if the unsafe condition is known to the servant, the owner is not liable.</p> <p>■ 4. Febbies, § 9*—when employee of independent contractor assumes rislc of traveling with team on ferryboat. An employee of an independent contractor, who has a contract with a water company operating a cable ferryboat from the mainland to an island in a river to convey coal to the plant on such island, and knows that the boat is operated without railings on the ends, assumes the risk incident to traveling over in the boat in the manner in which it is operated, and consequently cannot recover against the water company, for the loss of his team used in hauling coal, due to its becoming frightened at the operation of the cable and rushing over one end into the river and being drowned.</p>

<p>Abstract of the Decision.</p> <p>1. Workmen’s Compensation Act, § 2*—when evidence sufficient to show election ~by employer not to come under. In an action to recover for the death of a miner as the result of being struck by a falling rock in a mine, where the defendant contended that it was not liable because it was operating under the Workmen’s Compensation Act, where it appeared that the defendant had filed a notice electing not to come under the act, and plaintiff filed a certified copy of such notice, and the defendant claimed that because the evidence failed to show that notice of such election was not posted in the mine, or notice given to the deceased, plaintiff had failed to make out a case, held that the objection was not well taken.</p> <p>2. Death, § 21*—when injury is proximate cause of. In an action to recover for the death of a miner, as the result of being struck by a falling rock in a mine, where it appeared that prior to his death the deceased was a healthy man capable of working every day, that by the falling of the rock upon him his breast was bruised, his leg broken above the thigh and he sustained other injuries; that he was taken home and put to bed and his limb set, and that in about five days he was attacked with pneumonia which lasted about two weeks and left him with a weak heart, and after three months the splint was removed from the limb, but he was never able to get around without assistance, and never became strong again, and that, when "examined a few days before his death, his condition was below par and he was weak and in a very low state of vitality, and that shortly’ after this examination he died suddenly while sitting on his cot; and where the defendant contended that plaintiff failed to show that death was caused by the injury, held that the jury were warranted in finding that the consequences resulting in the death of the decedent followed in an unbrokeh sequence from the wrong to the injury, and without any intervening efficient cause to aggravate or change the cause.</p> <p>3. Negligence, § 196*—when question of proximate cause of injury is for jury. The question of the proximate cause of an injury is one largely to be determined by the jury, and unless the evidence is such that all reasonable persons would concur in saying that it was not the result of the injury, then it remains a question of fact and does not become a question of law.</p> <p>4. Negligence, § 49*—when negligent act is proximate cause of injury. In order to make a negligent act the proximate cause of an injury, it is not necessary that the particular injury and the particular manner of its occurrence could reasonably have been foreseen.</p>

<p>1. Principal and surety, § 17*—when payment of interest is sufficient consideration for extension of time releasing surety. Payment of legal interest on a debt, in advance, is a sufficient consideration to support an agreement for an extension of the time of payment thereof, and such payment of interest is of itself sufficient prima facie evidence of an agreement to extend the time of payment, and works the discharge of the surety.</p> <p>2. Pledges, § 24*—what constitutes release of collateral. In an action against a bank to recover the amount of a certificate of deposit payable to the order of plaintiff, where there was controversy as to whether such certificate was deposited as collateral for the note of other parties, and where plaintiff contended that in any event the extension of the note without notice to him operated as a release of the collateral, held that assuming that the certificate was left as collateral security for the note, the extension of such note for a definite period for a valuable consideration operated as a release of the collateral.</p> <p>3. Bills and notes—when person not signing note is not liable as principal. In an action against a bank to recover the amount of a certificate of deposit which the defendant claimed was deposited as collateral security for a note given by others, where plaintiff contended that by an extension of such note the collateral was released, and the defendant contended that under the Negotiable Instruments Act of 1907 plaintiff became liable as a principal, and that therefore he could not be released by reason of the extension of the note, held that the act had no application, as plaintiff did not sign the note either as principal or surety.</p> <p>4. Pledges, § 24*—when owner of certificate of deposit is not bound by agreement in note that extension of time of payment shall not release signers. In an action against a bank to recover the amount of a certificate of deposit which the defendant claimed was deposited as collateral security for a note given by others, where defendant contended that because the note contained an agreement by all signers that no extensions of the time of payment of the principal by the receipt of interest, or otherwise, should release either of them, the collateral was not released by such extension, held, that plaintiff, not having signed the note either as principal or surety, was not bound by such agreement.</p> <p>5. Pledges, § 44*—when evidence is sufficient to show that certificate of deposit was not pledged as collateral to note. In an action against a bank to recover the amount of a certificate of deposit, evidence held sufficient to show that such certificate was not pledged as collateral to a note signed by other parties and held by defendant.</p>

<p>Appeal from the City Court of Benton; the Hon. Robert E. Hickman, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>1. Boundaries, § 37*—when striking of pleas is proper. In a statutory proceeding to establish a boundary line "and corners, where the defendant complained of striking of his pleas from the files, held that the proceeding was purely statutory, and that as the statute did not contemplate the filing of pleas, the striking of the pleas in question was not error.</p> <p>2. Boundaries, § 37*—when filing of amended petition is discretionary. In a statutory proceeding to establish a boundary line and corners, where the defendant complained of the giving of leave to file an amended petition, held that as the original petition, in substance, contained all the statutory requirements and was therefore sufficient to confer jurisdiction, the filing of an amended petition was discretionary.</p> <p>3. Boundaries, § 37*—what is effect of failing to abide by demurrer. By failing to abide by a demurrer to a petition in a proceeding to establish boundaries, a party is precluded from raising objections to the giving of leave to file an amended petition.</p> <p>4. Boundaries, § 40*—when allowance of amendment to commissioners’ report is not an abuse of discretion. In a statutory proceeding to establish a boundary line and corners, where the court permitted an amendment to be made to the commissioners’ report stating that although the comer in question had never been marked by stake or monument by the original surveys, it was established by the government surveyors in accordance with the rule established for locating closing corners, which was to locate them midway between the section corners, held that, as the amendment was simply a clearer statement of what the commissioners intended to say in the original report, the allowance of the amendment was no abuse of discretion. '</p> <p>5. Boundaries, § 40*—when legality of report of commissioners is not affected by absence of commissioner. In a statutory pro)ceeding to establish a boundary line and corners, where the defendant complained of the absence on one day of one of the members of the commission, held that as such member assisted in locating the corner in question and approved what the others did in his absence, the legality of the report was not affected by such absence.</p> <p>6. Officers—what construction given words purporting to give joint authority to three or more persons. Words in a statute purporting to give a joint authority to three or more public officers or other persons are to be construed as giving such authority to a majority of such officers or persons. ,</p> <p>7. Boundaries, § 38*—when evidence is sufficient to show establishment of corner. In a statutory proceeding to establish a boundary line and corners, where the defendant contended that the evidence failed to disclose that the corner in question was ever an established corner under the statute, held that government plats showing that the corners were established and marked by the government surveyors, and showing the corners in question, were sufficient to make the corner in dispute an established corner as contemplated by the statute.</p> <p>8. Judgment, § 232*—what is not entry of judgment rendered at previous term. In a statutory proceeding to locate a boundary line and corners, where the presiding judge entered the judgment according to the directions of the judge before whom the case was tried, held that this was not the entering of a judgment rendered at a previous term, but the rendering and entering of a judgment which had been taken under advisement by the other judge.</p> <p>9. Boundaries, § 45*—when objection as to disqualification of commissioner is too late. In a statutory proceeding to locate a boundary and corners, where the defendant complained that one of the members was not disinterested, and where it appeared that such member had at one time assisted in surveying the corner in dispute for the defendant, held that the defendant was precluded from making the objection, as he failed to object at the time of the appointment of such member.</p>

<p>Error to the Circuit Court of Clay county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>1. Courts, § 83*—-when Circuit Court has no jurisdiction of creditor’s hill. On a creditor’s bill filed against a defunct drainage district and the county clerk, where it was sought to have a fund in the hands of said clerk and received by him from said district, and representing money turned over by the district for payment to property owners, applied towards the payment of complainant’s judgment and where appellee raised the question of the jurisdiction of the trial court over the subject-matter, held that the fund did not belong to the clerk, but was only in his hands as county clerk, and was really in the custody of the court itself, and that the' Circuit Court had no jurisdiction to direct the County Court or its officers as to the manner or to whom said fund should be paid.</p> <p>2. Courts, § 67*—when question of jurisdiction can he raised. The question of jurisdiction over the subject-matter of a suit can be raised at any stage of proceedings.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 84*—when evidence insufficient to show relation. In an action to recover commissions for the sale of shares of stock, where plaintiff contended that he was employed by the defendant in the presence of two employees of plaintiff, and where the defendant denied the employment, and the two employees were not produced as witnesses, held that the burden was on plaintiff to prove his employment by a preponderance of the evidence, and that the verdict in favor of the defendant was supported by the evidence and should be affirmed.</p> <p>2. Master and servant, § 82*—when letters relative to removal of friction between stockholders of corporation are admissible. In an action to recover commissions for the sale of shares of stock where plaintiff himself owned some of the stock, and there had been friction between the stockholders which caused the sale in question to be made, and defendant claimed that plaintiff’s action was purely voluntary and in accord with a plan of settlement, and complained of the admission of certain letters in evidence which had reference to the removal of the friction between the stockholders, held that as the letters tended to show the relations existing between the parties, and in view of the claim that plaintiff acted voluntarily, the letters were properly admitted.</p> <p>3. Appeal and ebbob, § 1537*—when repetition of instructions is not material. "While it is not good practice to give as many as five instructions on the question of the preponderance of the evidence, it is not material error to do so.</p>

<p>Abstract of the Decision.</p> <p>1. Damages, § 153*—when verdict for breach of contract not to engage in saloon business urithin stipulated territory is sustained by evidence. In an action to recover damages for breach of contract not to engage in the saloon business within a certain number of blocks for a period of three years, where the defendant sold his saloon to the plaintiff and within about a month conducted a saloon within said radius, and where defendant contended that there was no basis in the evidence for the verdict rendered, unless speculative profits were made the basis, and the facts showed a flagrant violation of the contract and that plaintiff’s loss of business was occasioned by the opening of the" saloon, and the only question was as to the amount of damages, held that proof of plaintiff’s damages was difficult, and as plaintiff lost $20 per day after the other saloon was opened, and $2,000 in cash, and was compelled to close his doors in about eight months, a verdict for $1,300 was warranted.</p> <p>2. Damages, § 66*—what are recoverable for violation of covenant not to engage in like business. For a violation of a covenant not to engage in a business like the one sold, the injured party may recover for loss of profits and diminution in the value of the business.</p> <p>3. Contracts, § 393*—when refusal of instruction in action for breach of contract not to engage in like business is not error. In an action to recover damages for breach of a contract not to engage in a business like that sold to plaintiff, where an instruction that before plaintiff could recover he must prove that his business was damaged as a consequence of the breach of the contract, held that, as the execution and validity of the contract were not disputed, plaintiff was entitled to recover at least nominal damages without any proof of actual damages, and therefore the refusal of the instruction was not error.</p> <p>4. Damages, § 198*—not necessary that all instructions state measure of. In an action to recover damages for breach of a contract not to engage in a business like that sold to plaintiff, where the giving of instructions telling the jury that if they believed from a preponderance of the evidence that the contract was executed and that defendant had violated it, their verdict should be for the plaintiff, were complained of, held that such instructions stated the law correctly, and, as the instructions on the whole stated the measure of damages correctly, it was not necessary for each instruction to state such measure.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1411*—when verdict not disturbed. In an action to recover for breach of a warranty in the sale of a secondhand gasoline engine, where the evidence was contradictory as to the working of the engine, and there was sufficient proof to warrant the finding that there was an express warranty and that the engine failed to fulfil such warranty, held that the verdict in favor of plaintiff should not be set aside.</p> <p>2. Sales, § 402*—when refusal of instruction on nonexistence of implied warranty is not error. In an action to recover for breach of a warranty in the sale of a secondhand gasoline engine, where there was an express warranty, held that the refusal of an instruction that in the sale of secondhand goods no warranty was implied, was not error, as in any event it was possible that secondhand goods might be sold under such circumstances as to raise an implied warranty.</p> <p>3. Appeal and error, § 1525*—token instructions not reversibly erroneous. "When instructions treated as a series do not contain such error as would warrant a reversal, the fact that they were not carefully drawn and contain minor inaccuracies will not cause a reversal.</p>

<p>1. Railroads, ■§ 508*—who are trespassers on railroad right of way. In an action against the receiver of a railroad to recover for death, where it appeared that the deceased and his father, a man about seventy-eight years old, were walking upon a space between certain tracks, which, although railroad right of way, was generally used by the public, the father walking slightly in advance, and where as both entered upon the right of way a freight train running at about twelve to twenty-five miles an hour came around a curve about one and one-half miles away, and as it approached to within from twelve' to sixty feet, the father suddenly stepped on the track in front of the approaching train, and when the son tried to rescue him both were struck by the engine and killed, held that both the deceased and his father were trespassers, and that there could have been no recovery by the representative of the father under the proof, and that the attempted rescue by the son did not make him any the less a trespasser.</p> <p>2. Railroads, § 517*—when duty to exercise ordinary care to avoid injuring trespassers upon track arises. The duty to exercise ordinary care to avoid injury to trespassers upon a railroad track arises only after their presence upon the track is shown to have become known to the servants of the railroad company.</p> <p>3. Railroads, § 517*—what duty owed to trespassers. A railroad company owes no duty to trespassers upon its right of way, except to refrain from wantonly and wilfully injuring them, and this rule is the same whether they are trespassers or licensees.</p> <p>4. Railroads, § 509*—what is effect of traveling on track with knowledge of company on relation of trespasser. The fact that persons have been in the habit of traveling upon the right of way of a railroad company does not change -the obligation or duty of the company to such persons traveling thereon for their convenience, and they are still trespassers, even though such use was known to the employees of the company.</p> <p>5. Railroads, § 550*—what is liability of company for death of trespasser attempting to rescue another trespasser on tracks. In an action against a steam railroad company for death, where the decedent and his father were trespassers upon the right of way of the defendant, and where the father stepped on the track in front of an approaching train and was killed, and the son in attempting to rescue the father was likewise killed, and it was claimed by plaintiff that she was entitled to recover on the theory that her intestate, in his attempted rescue of his father, was placed in a position of peril through the negligence of the defendant, held that notwithstanding the fact that the attempt to rescue the father from imminent danger may not have amounted to contributory negligence, no liability rested on the defendant, unless it was negligent in placing the father in peril, or in failing to avoid the injury after discovering the peril.</p> <p>6. Railroads, § 531*—what is duty of trainmen seeing persons on track. Trainmen operating a steam railroad train are under no obligation to stop their train, even though they see travelers on foot upon the right of way near the track, as they have a right to presume such persons will remain at a safe distance from the track, and they may continue in that assumption until such travelers manifest a disposition to go upon the track, or so near theretoJ as to be in danger of injury.</p> <p>7. Railroads, § 590*—when error committed in passing upon instructions in action for death of trespasser. In an action against a steam railroad company for death, where the decedent and his father were trespassers upon the right of way of the defendant, and where the father stepped on the track in front of an approaching train and was killed, and the son in attempting to rescue the father was likewise killed, and where the court stated that the father could not have recovered under the facts of the case, and certain instructions given for plaintiff ignored the question whether the defendant was guilty of negligence tending to place the father in danger, while a number of those refused for the defendant covered such question, and required proof that the father was in a place of peril in which he had heen placed through the negligence of the defendant, at the time the deceased attempted to rescue him, before a recovery could be had, held that reversible error was committed in passing upon the instructions.</p> <p>8. Negligence, § 76*—when person injured in attempt to rescue person imperiled 6y negligence of another may recover.. A person attempting to rescue one imperiled by the negligence of another may, if injured in the attempt, recover from the negligent person if the attempted rescue be not one of recklessness and rashness and the rescuer did not place the imperiled person in danger.</p> <p>9. Railroads, § 536*—when violation of speed ordinance is not proof of wantonness or wilfulness. Although the violation of a speed ordinance by a steam railroad company is prima facie proof of negligence, yet it is not proof of wantonness qr wilfulness, especially when the injury occurred at a place which did not have the appearance of a public crossing.</p>

<p>Abstract of the Decision.</p> <p>1. Damages, § 209*—when instruction on amount of recovery is erroneous. In an action for personal injuries by a passenger against a street car company, where the defendant complained of the giving of an instruction intending to state the rule as to the liability of a carrier, and concluding with the words “then your verdict will be for the plaintiff in such an amount as you may believe from the evidence he is entitled to recover,” held that by such instruction the jury were left free to give such damages as they might think plaintiff ought to recover, without confining them to any legal rule for fixing damages, and that the giving of such instruction constituted reversible error.</p> <p>2. Cabbiebs, § 482*—when refusal of instruction in action by passenger for injuries received in alighting from car is proper. In a personal injury action by a passenger against a street car company, where an instruction that the declaration did not charge as a ground of recovery that the defendant did not keep its car waiting a sufficient length of time for plaintiff to alight, but that the actionable negligence charged was the sudden and violent starting of the car, which caused plaintiff to be thrown, and that, unless such actionable negligence was proven as charged, the verdict must be not guilty, was refused, held that such instruction contained nothing material which was not fully covered by other given instructions, and as the charge in the declaration appeared to be as much a charge of failure to wait a reasonable time as a charge of negligence in starting, the refusal was not error.</p> <p>3. Appeal and ebbob, § 1543*—when instruction on credibility of toitnesses is not reversibly erroneous. In a personal injury action by a passenger against a street car company, where an instruction was given telling the jury that where two witnesses testified directly opposite to each other on a material point, and were the only ones that testified directly to the same point, the jury were not bound to consider the evidence evenly balanced or the point not proved, but might regard all the surrounding facts and circumstances proved at the trial and give credence to the one witness over the other, if the jury thought such facts and circumstances warranted it, held that, while such instruction was somewhat argumentative and was not to be wholly commended, it did not contain reversible error.</p>

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

<p>1. Landlord and tenant, § 478*—when evidence sufficient to show giving notice of intention to terminate tenancy hy landlord. In an action of trover by a farm tenant against the landlord to recover the value of a crop of corn which matured after the alleged date of termination of the tenancy, evidence including an admission of plaintiff’s counsel, held sufficient to show the giving of notice of intention to terminate the tenancy by the landlord at a date prior to the maturity of the crop.</p> <p>2. Landlord and tenant, § 485*—when giving of second notice of termination of tenancy does not constitute waiver of first notice. A second notice by a landlord of termination of the tenancy at a particular time does not constitute a waiver of the prior notice, but must be deemed a precautionary measure, where the tenant is not misled.</p> <p>3. Landlord and tenant, § 478*—when tenant may not complain of notice of termination of tenancy. A tenant of a farm cannot complain because more notice than that stipulated by the lease as to intention to terminate a tenancy from year to year is given.</p> <p>4. Landlord and tenant—when lease of farm land is not invalid. A lease of farm land for five years beginning September 1st of a particular year and providing for termination of the tenancy by either party by giving sixty days’ notice prior to September 1st of any particular year is not invalid as being against public policy because of its unusual period of termination.</p> <p>5. Landlord and tenant, § 526*—when tenant has no right to crops after termination of lease. Where a term is fixed in time, either by the terms of the lease itself or by a notice terminating it at a time when the landlord has the right to end it, the tenant has no right to crops planted after notice of termination of the lease, but maturing after its termination.</p>

<p>Abstract of the Decision.</p> <p>Insurance, § 907*—when evidence shows self-inflicted abortion was cause of death of insured. In an action on a benefit certificate, evidence held sufficient to show that self-inflicted, abortion and not pneumonia was the cause of death of insured.</p>

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

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

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

<p>1. Tenancy in common, § 23*—when tenant may not bind cotenants by lease. One tenant cannot bind Ms cotenants by a lease of the whole estate without written authority from them to do so, unless such lease is ratified by them.</p> <p>2. Tenancy in common, § 23*—when ratification by cotenants of lease by one tenant presumed. A ratification of a lease by one tenant in common of premises owned by tenants in common by cotenants will be presumed when the nonexecuting cotenants have knowledge of such leasing, make no objections thereto and share in the rents arising from the lease.</p> <p>3. Tenancy in common, § 23*—when ratification of lease by co-tenant not presumed. The rule that a ratification of a lease by one tenant in common of premises owned .by tenants in common by the cotenants will be presumed when the nonexecuting cotenants have knowledge of such leasing, make no objections thereto and share in the rents arising from the lease, is inapplicable as to a cotenant who is not sui juris when the lease is made.</p> <p>4. Guardian and ward, § 23*—when ward not bound by ratification of renewal of lease. A conservator of a tenant in common, without authority from the County Court, cannot bind the ward by his consent to or ratification of a renewal of a lease of the premises by another tenant in common.</p> <p>5. Tenancy in common, § 23*—when cotenant leasing premises is bound. A cotenant, by a lease of the “Whole premises, cannot prejudice the rights of the other cotenants, but such lease will be valid as to himself and his undivided interest therein.</p> <p>6. Tenancy in common, § 23*—when cotenants bound by lease of premises. Cotenants who have ratified a lease of the whole premises by a tenant in common are bound thereby.</p> <p>7. Appeal and error, § 369*—when different theory of case may not be advanced. A litigant cannot try a case upon one issue or theory in the trial court and upon an entirely different one on appeal.</p>

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

<p>1. Gifts, § 15*—when valid gift of certificate of deposit is made. A valid gift of a bank certificate of deposit is made where the donor indorses the certificate on the back and gives it to the donee and tells her to keep it as her own property.</p> <p>2. Gifts, § 30*-—What constitutes a gift causa mortis. A gift causa mortis is a gift of personal property in expectation of death from a present disorder or peril.</p> <p>3. Gifts, § 1*—what constitutes a gift inter vivos. In order to constitute a gift inter vivos it is essential that the gift be absolute and irrevocable; that the giver part with all present and future dominion over the property given; that the gift go into effect at once and not at some future time; that there be a delivery of the thing given to the donee, and that there he such a change of possession as to put it out of the power of the giver to repossess himself of the thing given.</p> <p>4. Gifts, § 9*—what is effect of delivery to agent. While a delivery of. a gift may be made to a third party in order that the latter may deliver the subject of the gift to the donee as the agent of the donor, the gift is not complete until there is an actual delivery to the donee; and until the gift is completed by delivery, the donor can revoke the agent’s authority and resume possession of the gift.</p> <p>5. Gifts, § 9*-—what is effect of delivery to trustee. Where a delivery of a gift is to a trustee for the benefit of the donee, such delivery is good and the death of the donor will not revoke it.</p> <p>6. Gifts, § 9*—when hank holds certificates of deposit as agent of donor. A bank holds certificates of deposit as agent of the donor and not as trustee under an arrangement whereby it is authorized by the donor to hold certain certificates of deposit payable to the donor or another person or the survivor, in escrow, and in the event of the donor’s death before that of the donee to pay the amount due on such certificates to the donee for her special use and benefit, even though the bank without authority pays the interest and parts of the principal to the donee before the death of the donor.</p> <p>7. Gifts, § 18*—what constitutes a testamentary disposition and not gift. A written instrument whereby the donor of certificates of stock, payable to the donor and donee, authorizes the bank issuing them and to which they are delivered, in the event of the donor’s death, to pay the amount due to the donee for the latter’s sole use and benefit, and signed by the donor and witnessed by one person, is a testamentary disposition, good only when made by a valid will.</p>

<p>Abstract of the Decision.</p> <p>1. Continuance, § 21*—when motion for on ground of ill health of defendant is properly denied. A motion for continuance based on the ground that the health of one of two defendants was such as to render it inadvisable for her to attend the trial as a witness is properly denied within the discretion of the court, where there is no sufficient showing as to when her health is likely to be such as to warrant her in appearing in court, or of any diligence in securing her deposition between the date when the case was first continued and the date to which it was then continued, or of any reason why the same was not taken, or of why it would not have been satisfactory.</p> <p>2. Continuance, § 31*—discretion of court. A motion for a continuance on the ground of ill health of a party defendant is addressed solely to the discretion of the trial judge.</p> <p>3. Appeal and ebbob, § 1350*—when exercise of discretionary power by court is not error. The exercise of a discretionary power by a court is never error unless it is clearly abused.</p> <p>4. Continuance, § 49*—when affidavit for is insufficient. An affidavit for a continuance because of the ill health of one of two party defendants, showing that the instrument sued on is a forgery and that no one can testify as to - such fact except such defendant, is insufficient where the plea of defendant is not verified, as under section 52 of the Practice Act (J. & A. f 8589), providing that no person shall be permitted to deny the execution of an instrument in writing sued on unless he shall verify his plea by affidavit, such party would not have been allowed to testify that the instrument was a forgery if she had been in court.</p> <p>5. Landlobd and tenant, § 473*—when no notice to quit or demand for rent is necessary. Where a tenant claims title adverse to his landlord, no notice to quit or demand for rent is necessary before bringing suit to dispossess him.</p> <p>6. Landlobd and tenant, § 474*—when notice or demand for rent is sufficient. Where notice of the landlord’s election to terminate the tenancy for nonpayment of rent and for immediate possession is given, no other notice or demand for rent is necessary before beginning an action of forcible entry and detainer.</p> <p>7. Tbial, § 198*—when direction of verdict for plaintiff is proper. There is no error in instructing a jury in a forcible entry and detainer action to find the issues for plaintiff where all the essential elements necessary to plaintiff’s right of recovery are proven and uncontroverted.</p>

<p>Mortgages, § 703*—what determines right of redemption 6y judg-. ment creditors. The right of priority of judgment creditors to redeem from a mortgage foreclosure sale after the expiration of the twelve-month period in which the mortgagor has the right of redemption is determined by the date of the original judgment, whether that judgment is rendered in the county where the property sought to be redeemed is situated or some other county of the State, and it is immaterial that a transcript of the prior judgment in another county is not filed in the county in which the land is situated before the rendition of another judgment in such latter county.</p>

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

<p>Error to the Circuit Court of Champaign county; the Hon. Frank-lot H. Boggs, Judge, presiding. Heard in this court' at the April term, 1917.</p>

<p>Error to the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Albert Aicers, Judge, presiding. Heard in this court at the April term, 1917.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>1. Appeal and error, § 624*—when appeal is perfected in time. A case is properly before the court on appeal when the trial court enters a finding of fact at one term and at the succeeding term judgment is entered thereon and an appeal is prayed the day the judgment is entered.</p> <p>2. Justices op the peace, § 73*—formality of proceedings. The same technicality or formality is not required in proceedings before' a justice as in suits in a court of record.</p> <p>3. Justices op the peace, § 106*—when judgment misstating name of plaintiff is sufficient. Where the name of a plaintiff, “New Boston Fish Company,” is correctly given in the summons and in the title in the docket of a justice of the peace, a judgment rendered in favor of plaintiff, New Boston Fish Market Company,” is sufficient, the word “market” being regarded as surplusage.</p>

<p>Appeal from the Circuit Court of Greene county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1917.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 304*—what order is appealable. When discovery is the only relief sought in a bill, a decretal order overruling a demurrer and ordering an answer is final and appealable.</p> <p>2. Discovert, § 7*—when bill is sufficient. When a bill.is filed purely for discovery in aid of a suit at law, it is sufficient if it is averred therein that the evidence sought will aid the complainant in the suit at law.</p> <p>3. Discovery, § 3*—what is effect of statute relative to production of boohs and documents. Rev. St. ch. 51, sec. 9 (J. & A. 5526), providing for the production of books and writings containing evidence pertinent to the issue in any action at law, has not abrogated the jurisdiction of equity to grant relief by way of bills of discovery, but simply gives to a party to a suit at law additional means of procuring evidence tending to prove the issue presented by him and in the possession of the third party.</p> <p>4. Discovery, § 7*—when bill against corporation for, is sufficient. A bill for discovery against a corporation which had entered into a contract for the payment of certain royalties on an invention of complainant’s decedent and had not fully accounted therefor, averring that defendant is a large manufacturing corporation with a voluminous and complex system of bookkeeping and that complainant has no means of knowing whether the information sou'ght, the number and kind of the patented articles sold, is kept in defendant’s regular system of bookkeeping or not, and that defendant is the only one that has any knowledge of the accounts in question, which were all on one side, and about which defendant could alone furnish accurate information, held sufficient.</p>

<p>1. Dower, § 132*—what are rights as to assignment of. The right to an estate in dower is created by law, and it is the duty of the heir at law, or whatever person has the next estate of inheritance or freehold in any lands of which any person is entitled to dower, to assign same as soon as practicable to the one entitled thereto, and if such dower be not so assigned, the surviving wife or husband, as the case may be, may sue and compel an assignment to be made.</p> <p>2. Dower, § 137*—validity of parol agreement as to assignment. The heirs owning the fee in lands may agree with the widow entitled to dower therein what the extent, limits and boundaries thereof may be, and when such an agreement has been made, it acts as a release of such dower in the remaining lands, and such agreements do not come within the Statute of Frauds.</p> <p>3. Dower, § 97*—who may receive release of unassigned dower. Unassigned dower is not the subject of transfer or sale and can only be released to one in privity with the title under which the doweress claims.</p> <p>4. Abatement and revival, § 10*—when rights as to assignment of dower are abated. The rights of a widow to an assignment Of her dower under an agreement therefor are abated by her death, and do not survive to her administrator.</p> <p>5. Contracts, § 303*—when performance is excused. In a contract, the performance of which requires the existence of a particular person or thing to complete its execution, a condition is always implied that the death or destruction of that person or thing shall excuse performance.</p> <p>6. Dower—when count in declaration to recover on contract to pay a certain sum for release of dower is demurrable. A count in a declaration in assumpsit by the administrator of a widow who, in her lifetime, had a dower and homestead interest in land based upon the theory of a contract whereby the widow promised to release to the defendants the dower and homestead interests in consideration of the payment of a certain sum' of money, part in cash and part by note, which defendants had failed to do, is demurrable because it does not aver that the widow in her lifetime, in pursuance to said contract, ever did, in fact, release her right of action to have her homestead, dower and widow’s award set off, assigned and awarded.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1917.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 297*—when decree is final. A decree in a suit for an accounting which construes the contract between the parties and fixes the rights of the respective parties thereto is final and appealable where nothing remains except an accounting.</p> <p>2. Appeal and error, § 1272*—when accotmting will he presumed to he correct. A statement of account made by a master in chancery and incorporated in a decree will be presumed to be correct where no specific errors are pointed out by defendants with respect to the items contained in the accounting.</p>

<p>Abstract of the Decision.</p> <p>' 1. Master and servant, § 693*—when evidence is sufficient to sustain finding as to proper method of jacking up fiat car. In an action by an employee against a railroad company for damages for personal injuries received due to the falling of the body of a flat car, resulting from the side sill of the car giving way while the car was being jacked up by placing jacks under the end sills, evidence held sufficient to show that the only way the car could be jacked up was by putting jacks under the end sills.</p> <p>2. Master and servant, § 565*—what- does not constitute variance between declaration and proof in action for personal injuries. In an action by an employee against a railroad company for damages for personal injuries received due to the falling of the body of a flat car which was being jacked up by plaintiff and another employee, held that evidence that plaintiff was a helper of such other employee did not negative the allegation in the declaration that plaintiff and such other employee were fellow workmen, where it appeared that the work was done pursuant to an order of a foreman.</p> <p>3. Master and servant, § 188*—when master giving orders for performance of dangerous work is liable. Where a servant is injured while taking the orders of his master to perform work in a dangerous manner, the master is liable unless the danger is so imminent that a man of ordinary prudence would not incur it.</p> <p>4. Master and servant, § 746*—when question whether danger of work is so apparent that careful person would not have incurred it is. for jury. In an action by an employee against a railroad company to recover damages for personal injuries due to the falling of the body of a flat car, resulting from a side sill giving way while the car was being jacked up from the trucks at the end sills, where it appeared that the truss rods, which held the end sills in place, had been taken out, and plaintiff had had little experience, held that it was a question for the jury whether or not the danger of doing the work in the manner ordered by the foreman, a man of many years’ experience, was so apparent and imminent that the plaintiff in the exercise of ordinary prudence should not have incurred it.</p> <p>5. Master and servant, § 649*—when evidence as to plaintiff receiving orders from coemployee is admissible. In an action by an employee against a railroad company to recover for injuries received due to the falling of the car while plaintiff and another employee were jacking the body of the car up from the trucks for the purpose of dismantling the car, held that evidence as to plaintiff having received orders from the other employee was admissible as bearing upon plaintiff’s freedom from contributory negligence, where such employee merely repeated the instructions of the foreman who had ordered them to do the work.</p>

<p>Abstract of the Decision.</p> <p>Set-off and recoupment, § 40*—when evidence is sufficient to warrant judgment on set-off in action on contract. In an action on an account for teaming and hauling where defendant interposed a set-off to recover an overpayment, consisting of a balance due after allowance being made for extras out of a sum paid to plaintiff for services and extras, evidence held insufficient to sustain a judgment for plaintiff and to warrant a judgment for defendant on. his set-off.</p>

<p>1. Contracts, § 173*—when construction which will make contract legal will be adopted. Where one construction will make a contract legal and another will make it contrary to law or public policy, the former construction will be adopted, if reasonable.</p> <p>2. Municipal corporations, § 833*—what is purpose of ordinance of City of Chicago regulating signboards on tops of buildings. Article XXIII of the Ordinances of the City of Chicago, relative to billboards and signboards, must be construed as being intended for the purpose of permitting such signboards on the tops of buildings as are built so as ' to minimize or avoid the danger from exposure of a large flat surface- to wind pressure.</p> <p>3. Landlord and tenant—when construction adopted which will make lease of space for signboards valid. Where one construction of a lease of a portion of the top of a building for the purpose of erecting and maintaining “electrical advertising signboards” would make it invalid under a city ordinance and another as permitting the kind of a signboard permitted by the ordinance, the latter construction will be adopted.</p>

<p>Abstract of the Decision.</p> <p>Attoeney and client, § 74*—when act of attorney in giving consent to assignment of assignee’s interest in land contract is ratified. Where the trustees of the estate of a vendor of land under contract receive a payment of an instalment due on the contract, after the giving of a written consent to the assignment of an assignee’s interest in the contract to other assignees by an attorney for the trustees, and after such assignees have entered into possession, the action of the attorney must be deemed to have been ratified.</p>