Volume 207 — Illinois Appellate Court Reports

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

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

<p>Abstract of the Decision.</p> <p>1. Municipal Coubt op Chicago, § 19* — what is error of law not warranting setting aside of judgment by default on petition. The rendition of a judgment in the Municipal Court of Chicago by default against the members of an exposition commission individually instead of in their capacity as commissioners is an error of law which cannot be taken advantage of by a petition to vacate the judgment, under section 21 of the Municipal Court Act (J. & A. H 3333), after thirty days from the date of the rendition of the judgment.</p> <p>2. Municipal Coubt of Chicago, § 19* — what is sufficient excuse for failure to appear to warrant setting aside of judgment by default on petition. Where the defendants in an action in the Municipal Court of Chicago are personally served with summons in the cause, the mere fact that plaintiff’s husband had also sued the defendants on the same day that she brought suit agaiilst them, and the failure to appear in the action brought by plaintiff may have been caused by confusion resulting from the similarity in names, is not sufficient excuse for the failure of defendants to appear and contest the claim of plaintiff upon the merits so as to warrant the setting aside of a judgment by default on petition more than thirty days after the rendition of the judgment, under section 21 of the Municipal Court Act (J. & A. If 3333).</p> <p>3. Municipal Court of Chicago, § 19* — what is effect of petition to set aside judgment by default. A petition in the Municipal Court of Chicago to set aside and vacate a judgment after thirty days is, in effect, the beginning of a new suit.</p> <p>4. Municipal Court of Chicago, § 19* — when judgment by default may not be vacated. The trial judge in the Municipal Court of Chicago has no jurisdiction to vacate a judgment by default after thirty days for an error which appears on the face of the record.</p> <p>5. Municipal Coubt of Chicago, § 19* — what is not error of fact which may be corrected on motion to vacate judgment by default. The error of fact which can be corrected by a judge of the Municipal Court of Chicago, on a motion to vacate a judgment by default, after the expiration of thirty days, under section 89 of the Practice Act (J. & A. If 8626), must relate to a fact which is unknown to the court, and which, if known, would have precluded the entry of the judgment, and does not include the fact that through a confusion of names of plaintiffs in two different actions who had sued defendants on the same day they had neglected to file their appearance in the action by plaintiff begun against them.</p> <p>6. Municipal Court of Chicago, § 19* — what is nature of proceeding to vacate judgment by default. A proceeding in the Municipal Court of Chicago by petition to vacate a judgment by default is in the nature of a bill in equity.</p> <p>7. Judgment, § 306* — when equity will not interfere with enforcement of judgment at law. Equity will not interfere with the enforcement of a judgment at law, unless the judgment debtor could not have availed himself of his defense at law, or was prevented from so doing by the fraud of the opposite party, or by accident or mistake unmixed with fault or negligence on his own part.</p> <p>8. Municipal Court op Chicago, § 24* — when writ of error only remedy for review of judgment. A writ of error is the only method for the review of the alleged variance in the entry of a judgment by default in the Municipal Court of Chicago against defendants in personam instead of in their official capacity, with limitation to funds lawfully in their hands as such officials.</p>

<p>Abstract of the Decision.</p> <p>1. Statutes, § 280* — when unnecessary that foreign statute be read to jury. A foreign statute of a State where a contract of employment is made relative to the defenses of assumed risk, etc., is admissible in an action by a servant for personal injuries for the guidance of the court, but it is unnecessary that it be read to the jury.</p> <p>2. Master and servant, § 95* — what law governs in action for personal injuries where contract made in foreign State. The law of the State where a contract of employment is made governs as to the law of assumed risk, burden of proof, etc., in an action for personal injuries against a master by a servant.</p> <p>3. Master and servant, § 629* — when evidence of previous explosions is admissible in action for personal injuries. In an action by a servant for damages for personal injuries due to the explosion of hot slag which plaintiff was hauling away from one of defendant’s ore smelting furnaces in a wheelbarrow, evidence tending to prove that several months next preceding the time of the accident explosions had taken place in slag removed from cinder pots on defendant’s premises under circumstances generally similar to the explosion in question, held admissible for the purpose of showing that defendant had, or in the exercise of reasonable care could have had, notice that slag, when insufficiently or improperly cooled, was apt to explode.</p> <p>4. Master and servant, § 695* — when evidence is sufficient to show that master in exercise of due care could have had notice of danger of worlc. In an action by a servant for damages for personal injuries due to the explosion of hot slag which plaintiff was hauling away from one of defendant’s ore smelting furnaces, evidence that six or more similar explosions had previously occurred, held sufficient to sustain a finding that defendant, in the exercise of due care, could have had notice of the dangers attending the work which plaintiff was directed to perform.</p> <p>5. Master and servant, § 191* — when duty incumbent on master to use reasonable care to warn servant. Where a master has knowledge, or is charged with knowledge, of the fact that slag removed from ore smelting furnaces is liable to explode when improperly or insufficiently cooled, it becomes as a matter of law his duty to warn a servant, engaged at the task of removing slag from the furnaces in a wheelbarrow while it is yet hot, of the danger incident to the work.</p> <p>6. Damages, § 188* — when evidence sufficient to show that blindness is due to accident. In an action by a servant for damages for injuries received due to the explosion of hot slag causing burns and the loss of his eyes, where it appeared that plaintiff, immediately following his injuries, went to a hospital and remained there three months, and there was no evidence that he did not receive competent treatment; that five months after the accident a physician found some suppuration in both eyes and cured them; that plaintiff’s eyes were perfectly normal before the accident and he was practically blind thereafter, evidence held sufficient to show that plaintiff’s blindness was caused by the explosion and that he had not been guilty of negligence in his efforts to be cured of his injuries.</p> <p>7. Master and servant, § 802* — when instruction on duty of employer to warn servant is erroneous. The elimination of the portion of an instruction, in an action by a servant against a master for personal injuries, that it is not the duty of the employer to warn the servant of an open and obvious danger and of which he had as good an opportunity of knowing as the employer, is not error where there is no evidence that would warrant a finding that the employee had any knowledge of the danger of the explosion of hot slag while hauling it away from ore smelting furnaces in a wheelbarrow.</p> <p>8. Master and servant, § 699* — when evidence insufficient to show Knowledge by employee of likelihood of hot iron slag exploding. Evidence held insufficient to show that an employee, engaged at the tasks of hauling away from ore smelting furnaces hot iron slag in a wheelbarrow, had any knowledge that such slag was likely to explode.</p> <p>9. Master and servant, § 804* — when instruction that act of fellow-servant contributing to produce accident does not bar recovery is correct. In an action by an employee for damages for personal injuries where the contract of employment was made in another State, in which the defence that the injuries were caused by the act of a fellow-servant was unavailable, an instruction that if the jury found from the evidence, under the instructions of the court, that defendant was guilty and that plaintiff had proved his case as laid in the declaration, although the act of a fellow-servant contributed to produce the accident, plaintiff could recover, held' to be correct.</p> <p>10. Instructions, § 25* — when instruction referring to declaration is not erroneous. In an action for damages for personal injuries, held that an instruction permitting recovery .if plaintiff had proved his case as laid in the declaration was not erroneous, although, the declaration had originally consisted of three counts, two counts having been dismissed out of the case, as the word “declaration’' must have referred to the count on which the case was tried.</p> <p>11. Damages, § 200* — when instruction on is not erroneous. In an action for damages for personal injuries, an instruction held not erroneous on the “ground that it informed the jury that damages might be allowed plaintiff “as the direct and proximate result of the accident in question, described in plaintiff’s declaration,” where the clause, when read with the balance of the instruction, informed the jury that the damages to he awarded were to be limited to the “physical injuries and physical suffering, if any, you find from the evidence the plaintiff has sustained as the direct and proximate result of the accident in question, described in plaintiff’s declaration, in so far as said damages are charged against the defendant in the plaintiff’s declaration and proved by a preponderance of the evidence in this case.”</p> <p>12. New tbial, § 69* — when on ground of newly-discovered evidence is properly denied. A new trial on the ground of newly-discovered evidence is properly denied where the affidavits therefor tending to show that plaintiff had sustained other injuries prior to the accident in question, would not have materially modified the verdict of the jury.</p> <p>13. Damages, § 145* — when verdict for personal injuries not excessive. A verdict for $25,000 damages for personal injuries to a boy twenty years of age, consisting of the loss of both eyes and other injuries due to burns caused by the explosion of hot slag, held not excessive where the earning capacity of plaintiff was practically destroyed and his past sufferings were great and would continue so.</p>

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

<p>Abstract of the Decision.</p> <p>1. Evidence, § 475* — what constitutes preponderance. The preponderance of evidence held to be in defendant’s favor, in an action for personal injuries alleged to be due to the sudden starting of a street car before plaintiff had time to get safely on board, where plaintiff testified in his own behalf and also another witness, who was not in position to see what occurred, and the conductor and two credible witnesses for defendant supported defendant’s contention.</p> <p>2. Instructions, § 88* — when instruction on determination of weight of evidence is erroneous. An instruction that the greater weight of evidence is not alone determined by the greater number of witnesses testifying to any fact or set of facts, but, in determining where the greater weight of evidence is, the jury should take into consideration the opportunities of the witnesses for seeing or knowing what they testified to or about, the probabilities or improbabilities of the truth of such testimony, and also take into consideration the connection, if any, between the witnesses and the parties and their interest in the result of the case, Held erroneous because the element of numbers, as well as of candor, fairness and intelligence, did not appear, and it had no reference to the consideration by the jury of all of the evidence in the case in arriving at their verdict.</p> <p>3. Evidence, § 475* — what considered in determining preponderance. In a personal injury action, where the evidence was directly conflicting as to the manner -of the occurrence of the accident, held that the number of witnesses was an important element in determining where was the preponderance of evidence.</p> <p>4. Negligence, § 228* — when instruction on contributory negligence is erroneous. An instruction, in an action for damages for personal injuries, which states in a negative way the duty of the plaintiff in regard to his being in the exercise of ordinary care for his own safety at and previous to the time of the accident is erroneous.</p> <p>5. Negligence, § 157*- — when burden of proof is on plaintiff. In an action for damages for personal injuries, the burden of proof is on plaintiff to aver and prove that at the time of the accident he was in the exercise of ordinary care for his own safety.</p> <p>6. Negligence, § 126* — what is effect of failure to aver and prdve freedom from contributory negligence. Failure to aver and prove freedom from contributory negligence, in an action for damages for personal injuries, precludes a recovery, regardless of the negligence proven against the defendant, unless such negligence is proven to be wilful, wanton or reckless.</p> <p>7. Appeal and error, § 1637* — when error in instruction is not cured by correct instruction. An error in an instruction in stating in a negative way the duty of plaintiff in regard to his being in the exercise of ordinary care for his own safety at and previous to the time of the accident is not cured by a correct instruction where it is impossible to determine which instruction was followed.</p>

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

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

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

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

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

<p>Abstract of the Decision.</p> <p>1. Commerce, § 4* — when railroad employee is engaged in interstate commerce. A checker employed by a railroad company is engaged in interstate commerce when checking freight out of a car which had been loaded in another State and brought therefrom into Illinois by such company.</p> <p>2. Commerce, § 4* — when railroad is engaged in interstate commerce. A railroad company engaged in hauling freight from a point in one State to a point in another State is engaged in interstate commerce.</p> <p>3. Workmen’s Compensation Act, § 4* — where remedy of employee is not under. Under section 2 of the Workmen’s Compensation Act (J. & A. 5450), the remedy of an employee injured while engaged in interstate commerce, and while in the employ of a carrier by land engaged in interstate commerce, is under the Federal Employers’ Liability Act and not under the Workmen’s Compensation Act of 1911.</p>

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

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

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

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

<p>Abstract of the Decision.</p> <p>1. Cabriebs, § 476* — when evidence shows negligence of carrier and lack of negligence "by passenger boarding car. In an action to recover for personal injuries received in boarding a street car, evidence held sufficient to support a finding that defendant was quietly of negligence and that plaintiff was not guilty of contributory negligence.</p> <p>2. Pleading, § 9* — when reference to “defendants” in declaration is immaterial. Where, prior to the trial of an action against two defendants, an order is entered discontinuing as to one of them, it is immaterial that the declaration contains references to the “defendants,” as such allegations necessarily refer to the remaining defendant.</p> <p>3. Pleading, § 356* — what is effect of order permitting withdrawal of special plea. The entry, on the motion of a defendant, of an order permitting it to withdraw a special plea constitutes an abandonment of the defense set up in such plea and an admission of the matter denied therein.</p> <p>4. Pleading, § 355* — what constitutes withdrawal of plea. Where leave is asked and given to withdraw a plea, the withdrawal is thereby effected though the plea continues to be a part of the files in the cause.</p> <p>5. Pleading, § 354* — when defendant estopped from relying on defense in plea assumed to he vñthdrawn. A defendant which asks and obtains leave to withdraw a special plea, and proceeds to trial on the assumption that the plea was withdrawn, is estopped from thereafter relying upon that defense.</p> <p>6. Damages, § 207* — when instruction on manner of determining is not erroneous. In an action to recover for personal injuries, an instruction in the usual form as to the manner of determining the amount of plaintiff’s damages, held not open to objection.</p> <p>7. Instructions, § 20* — what is proper cautionary instruction. In an action to recover for personal injuries in which numerous instructions, some complicated and involved, had been given for defendant as to the law and facts necessary to be found to entitle plaintiff to recover, it is proper for the court to point out to the jury that the court did not intend to state an opinion as to what the facts were and to remind them that they were judges of the facts.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 2* — when pedestrian has right of action against chauffeur violating ordinance. A pedestrian injured through the act of a chauffeur in passing to the left of a street car in violation of a city ordinance has a right to maintain a civil action for the injuries inflicted.</p> <p>2. Automobiles and garages, § 2* — when conduct of chauffeur need not he shown to he wanton and wilful. To recover for injuries received by the act of a chauffeur in wilfully violating an ordinance prohibiting passing on the left of a street car, it is not necessary to show that defendant’s conduct amounted to wanton and wilful misconduct.</p> <p>3. Automobile and gabages, § 2* — when plaintiff not guilty of contributory negligence. In an action to recover for personal injuries to one struck by an automobile, evidence held not to show that plaintiff was guilty of contributory negligence as a matter of law.</p> <p>4. Automobiles and garages, § 3* — what evidence properly excluded in action for personal injuries. In an action to recover for injuries to one struck by an automobile, it is not error to exclude evidence that the automobile was part of a funeral procession.</p> <p>5. Automobiles and garages, § 2* — when existence of obstruction on right side of street car is immaterial. In an action to recover for injuries to one struck by an automobile which was passing on the left of a street car in violation of a city ordinance, it is not material, on the- question of defendant’s liability, that there was an obstruction of the street on the right side of the car at that point, where there was no evidence that the street was obstructed at other points.</p> <p>6. Municipal Court of Chicago, § 28* — tohen Appellate Court may consider only objections to oral instructions made in accordance with rules of. Where, on appeal, there is certified to the Appellate Court a rule of the Municipal Court of Chicago that: “Objections to the giving or refusing of oral instructions to the jury must be specific, and must be made immediately upon the conclusion of the charge, and before the jury retire,” the only objections to oral instructions which the Appellate Court can consider are those made in conformity with that rule.</p> <p>7. Automobiles and garages, § 3* — when instruction in language of ordinance prohibiting passing to left of street car is sufficient. In an action to recover for personal injuries to one struck by an automobile which was passing to the left of a street car in violation of a city ordinance, an instruction properly and plainly stating the substance of the ordinance held sufficient.</p> <p>8. Automobiles and garages, § 3* — when instruction on speed of car in city constituting prima facie evidence of negligence is correct. In an action to recover for personal injuries to one struck by an automobile which was passing to the left of a street car in violation of a city ordinance, it is not error to instruct that the operation of a car at a speed of over ten miles an hour on public highways in closely built-up portions of a city is prima facie evidence of negligence, especially where, the court adds that the fact that the law was violated is not evidence, in itself, of negligence.</p> <p>9. Appeal and error, § 1544* — when instructions on wanton and wilful misconduct not reversibly erroneous. In an action to recover for personal injuries to one struck by an automobile which was passing to the left of a street car in violation of a city ordinance, • instructions as to wanton and wilful misconduct held not reversible error.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence — what judicially noticed. The court will take judicial notice, as a fact of common knowledge, that the automatic' telephone is one conducted without the assistance of an operator, and that conversation over such a line cannot, by accident or otherwise, be heard over any other line in the system.</p> <p>2. Municipal corporations, § 864* — when evidence sufficient to sustain conviction for violation of gambling ordinance. On a prosecution for violation of the Chicago Code of 1911, sec. 982, in reference to gambling, evidence held to support a judgment against defendant.</p> <p>3. Municipal Court of Chicago, § 14* — what judicially noticed by. The Municipal Court of Chicago takes judicial notice of the ordinances of the City of Chicago.</p> <p>4. Municipal Court of Chicago, § 28* — when ordinance must be certified. The trial judge, in an action in the Municipal Court of Chicago, is required, upon the request of the party appealing, to certify the ordinance or ordinances material to the issues.</p> <p>5. Municipal Court of Chicago, § 29* — when presumed that complaint donformed to ordinance. On an appeal by defendant from a judgment of the Municipal Court of Chicago, where the ordinance material to the issue is not certified by the trial court, every presumption that the complaint thereunder conformed to the ordinance will be indulged in favor of the judgment.</p>

<p>Alteration of instruments, § 16* — what constitutes material alteration of note releasing guarantor. The addition to a note, originally payable in ninety days, of a power of attorney permitting a judgment to be confessed on the note at any time, before or after maturity, is a material alteration which releases one who, before the addition of the power, had indorsed upon the note a guarantee of its payment.</p>

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

<p>1. Appeal and error,, § 800* — what must he part of HU of exceptions. Motions and orders striking pleas from the files and exceptions thereto cannot be made a part of the record and reviewed unless preserved by a bill of exceptions.</p> <p>2. Attachment, § 196* — when question whether court erred in refusing to grant motion to dissolve attachment not considered. On review, the question as to whether or not the court erred in refusing to grant a motion made at the close of plaintiff’s case to dissolve the attachment and dismiss the suit on the ground that the damages were unliquidated will not be considered where this V ground was not one of the specific reasons assigned in the motion and the motion was not renewed at the close of the case.</p> <p>3. Appearance, § 12* — what is effect of. Where defendant in attachment enters his appearance, files an affidavit of merits and contests the claim, the court is not authorized to dismiss the suit on his motion, but should proceed to final judgment as though summons were issued.</p> <p>4. Attachment, § 80* — when affidavit is sufficient to give court jurisdiction. That the affidavit for an original attachment shows that the amount sued for is unliquidated does not deprive the court of jurisdiction.</p> <p>5. Attachment, § 247* — when evidence sufficient to support judgment for plaintiff. On a suit in attachment, evidence held sufficient to support a judgment and finding for plaintiff.</p> <p>6. Evidence, § 221* — when inadmissible as hearsay. On a suit in attachment, evidence held inadmissible as hearsay.</p>

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

<p>1. Arbitration and award — what is character of notice of final judgment. The “notice” of final judgment on an award of arbitrators provided for by Hurd’s Rev. St. ch. 10, sec. 7 (J. & A. If 462) is. not to be construed as synonymous with “process” but as equivalent to knowledge or information.</p> <p>2. Arbitration and award — when court has jurisdiction upon filing of award. Persons who agree to arbitrate their differences in the method provided by Hurd’s Rev. St. ch. 10, sec. 16 (J. & A. If 471) and in their agreement provide that the award made pursuant thereto “may be filed in the Circuit Court of Cook county, and judgment entered thereon,” by such agreement definitely subject themselves to the jurisdiction of that court.</p> <p>3. Arbitration and award — what is effect of service of notice in another State on jurisdiction of court. Under an agreement entered into to arbitrate differences in the manner provided by Hurd’s Rev. St. ch. 10, sec. 16 (J. & A. If 471), which agreement provides that any award thereunder may be filed in the Circuit Court of Cook county and judgment entered thereon, after an award has been made and the notice provided by section 7 (J. & A. If 462) of the statute has been given and the award has been filed in the Circuit Court, that court obtains jurisdiction, even though the notice was served in another State.</p> <p>4. Arbitration and award — when party may not claim that notice is not due process of law. One who signs an arbitration agreement under which he voluntarily and with knowledge waives everything beyond mere notice or information cannot claim that notice thereunder served outside of the State is not due process of law.</p> <p>5. Corporations, § 709* — when foreign corporation is doing business within State. Even though a foreign corporation has filed a renunciation of its license to do business in the State and has revoked its statutory license, it cannot be held entirely to have ceased doing “business” where there remains pending a proceeding to enforce an award against it rendered under a voluntary arbitration agreement entered into by it in the State while it still retained its license to do business, and service of notice provided for the agreement and the statute under which it was entered into may be made upon its statutory agent.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 33* — when affidavit of merits is sufficient. Even though the affidavit of merits in an action in the Municipal Court of Chicago is not clearly and logically drawn,' contains immaterial matter and states the amount of damages poorly and weakly, it is sufficient where, on analysis, it sets up a good defense to the whole of plaintiff’s claim, sufficiently specifies the nature of such defense and states the damages in such a manner as to render the amount claimed obvious.</p> <p>2. Sales, § 320* — what may he set off in action for purchase price. In an action for the purchase price of goods, defendant may set up that goods were of an inferior grade and not according to the contract noy to the sample.</p> <p>3. Municipal Court of Chicago, § 13* — when statement of claim is founded on original contract of sale. A statement of claim which recites that it is for the purchase price of goods sold and delivered to defendant at his request is founded upon the original contract and not upon an account stated.</p> <p>4. Pleading — when action of court in striking affidavit of merits improper. On review, the action of the trial court in striking an affidavit of merits from the files cannot he sustained on a ground on which the motion to strike was not based.</p>

<p>1. Execution, § 302* — -what evidence is admissible to determine whether petitioner maliciously appropriated property. On a petition to the County Court of Cook county for the release of one held in custody by virtue of a capias ad satisfaciendum issued upon a judgment entered in the Municipal Court of Qhicago in an action of trover, where there is an inconsistency between the statement of trover with the affidavit attached, on the one hand, and the verdict of the jury on the other, the County Court judge is warranted in permitting the petitioner to introduce evidence showing that the property was purchased by her, partly paid for, lost and the circumstances attending its loss and her willingness to pay the balanee due, for the purpose of determining whether the petitioner maliciously appropriated or converted the property, or whether she was unable to return the property through no fault of her own.</p> <p>2. Execution, § 293* — when person petitioning for release from custody should he discharged. Where, on petition for the release of one held in custody by virtue of a capias ad satisfaciendum issued upon a judgment in an action of trover, the evidence shows that the petitioner was not actuated by improper or. dishonest motives and that she did not intentionally injure or wrong the plaintiff in trover, a judgment discharging her is proper.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the March term, 1917.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Municipal Court of Chicago; the Hon. Peter C. Walters, Judge, presiding. Heard in this court at the March term, 1917. Affirmed.</p>

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

<p>Abstract of the Decision.</p> <p>1. Conspiracy, § 35* — when indictment for is correct. An Indictment for conspiracy, each of the six counts of which charges all of the defendants with conspiring to do unlawful acts in each count particularly set forth, two counts charging conspiracy to obtain money by false pretenses, two to obtain money by means of confidence game and each count involving the obtaining from two named women money to protect them from being molested by the police in conducting a disorderly house and relating to the same transactions stated in varying forms, charges defendants with committing a misdemeanor and is sufficient.</p> <p>2. Indictment and information, § 53* — when within discretion of court to allow or deny motion to compel election of counts. It is in the discretion of the trial court to allow or deny a motion to require the State to elect upon which counts of an indictment it will elect to prosecute, and the exercise of this discretion will not be disturbed upon review unless it is apparent that it was exercised to the manifest injury of the defendants.</p> <p>3. Indictment and information, § 50* — when joinder of offenses of same character does, not vitiate indictment. In the case of misdemeanors, the joinder of several offenses of the same character will not in general vitiate the indictment in any stage of the proceedings.</p> <p>4. Indictment and information, § 50* — when not quashed for joinder of offenses of same character. In the case of misdemeanors, the practice of quashing the indictment or information for the joinder of several offenses of the same character, or of calling on the prosecution to elect on which charge it will proceed, does not exist.</p> <p>5. Criminal law, § 124* — what evidence defendant may give where witness testifies to incriminating fact. Where a witness has testified in a criminal prosecution to a fact incriminating defendant, defendant should be permitted, in testifying on his own behalf, to state whether or not such fact was testified to by the witness at a preliminary hearing at which defendant was 'present and heard the witness testify.</p> <p>6. Witnesses, § 224* — what is proper cross-examination of witness testifying to fact incriminating defendant. Where a witness has. testified in a criminal prosecution to a fact incriminating defendant, the latter’s counsel is entitled to ask him on cross-examination whether he did not on a preliminary hearing testify differently, and in so asking it is not necessary as a preliminary to repeat to the witness verbatim the question put and the answer on such preliminary hearing.</p> <p>7. Criminal law, § 557* — when oral instructions not reversibly erroneous. It is not ground for reversal that on a criminal prosecution the court gave the jury oral instruction .as to the form of the verdict, such an instruction not being as to the law of the case.</p> <p>8. Conspiracy, § 54* — when instructions not reversibly erroneous. On an indictment for conspiracy, instructions examined and held not ground for reversal.</p> <p>9. Criminal law, § 372* — when judgment is several. A judgment against two defendants, on an indictment for conspiracy, which assesses the fines and costs against each defendant, the exact amount being written in the judgment, is not joint but several, even though the judgments are written together and are one judgment.</p> <p>10. Criminal law, § 590* — when improper argument of counsel is cured. Improper argument of counsel for the State in referring to the demeanor in the court room of the defendant in a criminal case, held corrected by a voluntary withdrawal of the remark.</p> <p>11. Criminal law, § 234* — when reference by State to demeanor of defendants is error. While counsel for the State may, in a criminal prosecution, refer to the demeanor on the witness stand of a defendant who testified, such reference should not be made to the demeanor of defendants in the court room.</p> <p>12. Criminal law, § 553* — when improper argument of counsel is not ground for reversal. Improper argument of counsel for the State in a criminal prosecution is not ground for reversal where the verdict could not have been otherwise had the remark not been made.</p> <p>13. Criminal law, § 525* — when error in procedure is not ground for reversal. On a criminal prosecution, where the evidence in the record so conclusively establishes the guilt of the accused that there is no room for reasonable doubt, harmless error in procedure will not work a reversal.</p> <p>14. Conspiracy, § 43* — when indictment is sufficient to support judgment against one defendant. An indictment for conspiracy which charges several defendants with conspiring with persons to the grand jury unknown is sufficient to support a judgment against one of such defendants.</p>

<p>Abstract of the Decision.</p> <p>1. Fraudulent conveyances, § 271* — when evidence is sufficient to show fraudulent conveyance to father. In an action of replevin by the trustee in bankruptcy of the estate of a company to recover a piano sold under a conditional sale contract to an employee of the bankrupt providing that title should remain in the seller until payment was made and that the piano might be rétaken without notice if sold without consent of the seller, where it appeared that the defendant was a minor sixteen years of age at the time of making the contract; that she lived at her father’s home until her marriage; that prior to her marriage she executed a bill of sale to her father; that following the marriage she lived in four rooms in the rear of the building occupied by her father, and that the piano was not moved from the premises, evidence held sufficient to show that the bill of sale was fraudulently executed.</p> <p>2. Infants, § 12* — when person may not take advantage of minority to commit fraud by making conveyance of property. Although a person could refuse to perform a contract for the purchase of a piano on instalments because she was a minor at the time, still she cannot take advantage of the fact that the contract is not binding to commit a fraud on the seller by making a sale of the instrument to a third person.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in this court at the March term, 1917.</p>

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

<p>Error to the Circuit Court of Cook county; the Hon. Daniel W. Maddox, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1414* — when decision of trial court on-controverted questions of fact mil not he disturbed. The decision of the trial court on controverted questions of fact, in view of the fact that the trial judge, who has had an opportunity to see and hear the witnesses who have testified in the case, is better able to determine such questions, will not be disturbed on appeal.</p> <p>2. Master and servant, § 84* — when evidence sufficient to show that contract was to go into effect immediately. In an action by a farm superintendent to recover for services under an oral contract, where the evidence was conflicting, evidence held sufficient to show that the contract was to go into effect immediately upon the making thereof.</p> <p>3. Frauds, Statute of, § 89* — when not defense in action on oral contract of employment. Where an oral contract of employment has been fully performed and. nothing remains to be done except the payment of money by the employer, the Statute of Frauds cannot be interposed as a defense to an action on the contract</p>

<p>Abstract of the Decision.</p> <p>1. Partition, § 9* — what is rule as to partition of land in which infant is interested. In proceedings to partition land, the right to such partition is imperative and binding upon courts of equity, subject, however, to the duty which the law imposes upon such courts to protect the interests of infants who may be parties to such proiceedings, and to determine whether the best interests of such infants may be conserved by allowing or denying the partition of lands in which such infants have an interest, and it is immaterial whether the infant is a party defendant or complainant.</p> <p>2. Infants, § 25* — what is duty of court as to protection of rights of. Infants are peculiarly the wards of a court of chancery, and it is the duty of that court to protect the rights of such infants whenever their interests are presented to the court for adjudication.</p> <p>3. Partition — when evidence sufficient to shoio to be against best interests of minor to partition land. In a suit to partition a remainder in real estate, evidence held sufficient to show that it would be against the best interests of the minor defendant to partition the land.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 866* — when abstract is insufficient. An abstract in bastardy proceedings which was silent as to what proceedings were brought against defendant and as to what verdict or judgment was entered against him, and was otherwise a mere index of the proceedings, held insufficient.</p> <p>2. Appeal and errob, § 1752*- — when judgment affirmed. The judgment of the trial court in bastardy proceedings should he affirmed where the appellant files an insufficient abstract.</p> <p>3. Bastards, § 22* — when evidence supports inference that relatrix was unmarried. In bastardy proceedings, evidence held sufficient to warrant an inference that relatrix was in fact an unmarried woman at the time of her relations with the defendant.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13a* — what does not constitute variance between statement of claim and proof in action of slander. In an action for slander in the Municipal Court of Chicago, where the statement of claim alleged that defendant had used words concerning plaintiff, intending thereby to charge that she had committed fornication with a married man, and did not purport to confine the defamatory utterances to a discourse between plaintiff and defendant, held that it was proper to show not only utterances by the defendant in the presence of the plaintiff, but also those made to other parties in her absence.</p> <p>2. Libel and slander, § 58* — when remarks are not privileged. In an action of slander for charging plaintiff with fornication with a married man, held that the contention that the remarks were privileged, because made to defendant’s employer, was without merit where it appeared that the statements were made simply as an excuse for defendant’s own misconduct and that the remarks were made to other employees.</p> <p>3. Libel and slander, § 145* — when evidence is sufficient to sustain verdict. In an action of slander to recover damages for the utterance of slanderous words, charging plaintiff with having committed fornication with a married man, evidence held sufficient to sustain a verdict for plaintiff.</p> <p>4. Libel and slander, § 142* — when evidence that plaintiff was not guilty of charge of fornication is admissible. In an action to recover damages for the utterance of slanderous words, charging plaintiff with having committed fornication with a married man, where defendant pleaded the truth as a defense, held that it was not error to admit testimony that plaintiff did not commit fornication with the party named by defendant.</p> <p>5. Libel and slander, § 37* — what is slanderous per se. A charge of fornication is slanderous per se.</p> <p>6. Libel and slander, § 21* — when malice presumed. Malice will be presumed by the use of words actionable per se.</p>

<p>Dismissal, nonsuit and discontinuance, § 37* — what construction given words “second, term of court” in Practice Act. The phrase “second term of court” In Hurd’s Rev. St. ch. 110, sec. 32 (J. & A. K.8569), providing that,if the declaration shall not be filed ten days before the second term of court after the first term at which the summons is made returnable, the defendant shall be entitled -to a judgment as in case of a nonsuit, means the next term after the term to which the process which became effective by service is returnable.</p>

<p>Error to the Circuit Court of Cook county; the Hon. H. Steeling Pomeroy, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13* — when statement of claim in action to recover for goods sold and delivered is insufficient. A statement of claim, in an action to recover for goods sold and delivered, which contains a number of items, but no description whatever as to the kind and character of the goods, the items charged being “to invoice,” is insufficient, and a motion for a more specific statement of claim is improperly denied.</p> <p>2. Sales, § 323* — when portion of affidavit of merits in action to recover for goods sold is improperly stricken from files. In an action to recover for goods sold and delivered, held that the portion of an affidavit of merits alleging that there were errors in the account stated by the plaintiff and that it included the price of certain tile which defendant claimed was to be of a specific kind, but after the tile was delivered under the contract and set up it developed that it was not of the kind and character as specified in the contract, and that it was impossible to discover this from inspection before setting,' was improperly stricken from the files.</p> <p>3. Sales, § 310* — what is condition precedent to right to recover purchase price of goods sold by description. Where a contract is executory and the seller agrees to sell an article by a particular description, it is a condition to his right to recover the price that the thing which is delivered shall answer such description, and in a suit for the price brought by the seller, the defendant may give in evidence the diminution in value on account of the goods not answering the description, or, if they he in fact worthless, may defeat the action.</p>

<p>1. Execution, § 256* — when evidence is insufficient to impeach sheriff’s return of nulla bona in county. Evidence, including an answer of a garnishee that the creditor’s attorney filed a memorandum that he was advised that the debtor had no property in the county subject to execution; that a demand would be unavailing; that if the sheriff, in the exercise of his discretion, should conclude to return the execution nulla bona the creditor would waive any damages that might result therefrom, and that a return no property found was made, held insufficient to overcome the prima facie evidence that there was no property subject to execution in the county arising from the return of the execution.</p> <p>2. Appeal and error, § 1698* — when failure to traverse answer may not he taken advantage of. The failure to traverse an answer of the garnishee in garnishment proceedings cannot be taken advantage of on appeal where the parties, without objection, proceeded with the trial of the case as though the issues had been properly joined.</p>

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

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

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

<p>1. Mortgages, § 175* — when mortgagors have no equities against assignee of first mortgage. On a bill for foreclosure by the assignee of a first mortgage on premises on which a building was erected by a building construction company, held that the mortgagor had no equities against the enforcement of the indebtedness which could be interposed against the first mortgagee, where the sale of two mortgages was effected by a construction company as agent, even though it failed to expend the proceeds on the building, especially where the mortgagors approved of expenditures made on improvements for more than the face value of the first mortgage.</p> <p>2. Mortgages, § 661* — when second mortgagee not entitled to attorneys’ fees. A second mortgagee is not entitled to attorneys’ fees where such mortgagee, who is made a defendant in a suit for the foreclosure of the first mortgage, files an answer praying that, in case of a sale, any surplus remaining after payment of the first mortgage should be applied towards the payment of the amount due him.</p> <p>3. Mortgages, § 667* — when allowance of attorneys’ fees for foreclosure is not excessive. An allowance of $1,000 attorneys’ fees for the foreclosure of a mortgage of $9,000, held not excessive where it appeared that the attorneys appeared before the master seventeen times and also were required to appear several times before the chancellor in settling the pleadings, and there was expert evidence on complainants’ behalf that such fees were reasonable and no evidence to the contrary.</p>

<p>1. Wills, § 459* — when devise or legacy lapses at common law. At common law a devise or legacy lapses where the devisee. or legatee dies before the death of the testator, except where made to a class and a member of the class dies before the testator, leaving other members of the class qualified to take.</p> <p>2. Wills, § 493* — what is purpose of section 11 of the Statute of Descent. The purpose of section 11 of the Statute of Descent (J. & A. H 4212), providing that whenever a devisee or legatee in any last will or testament, being a child or grandchild of the testator, shall die before the testator, and no provision shall be made for such contingency, the issue of such devisee or legatee shall take the estate the same as the devisee or legatee would have done had he survived the testator, is to prevent the lapsing of a devise or legacy to a child or grandqhild of the testator.</p> <p>3. Wills, § 494* — when legacy to grandchild lapses and property distributed as intestate property. Where a will provided that after the expiration of five years from the death of the testator the trustees of the estate should pay one-half of a certain sum to designated grandchildren, and ten years after his death the balance, share and share alike, held that it was the intention of the testator not to provide for the contingency of the death of a grandchild before his death and that a devise to such a grandchild lapsed and passed to the heirs of the testator as intestate property.</p> <p>4. Wills, § 262* — when husband is not heir of wife. Where a wife dies leaving a husband and also a child, the husband is not an heir of the wife if there is nothing in a will of the wife’s father, who had previously died to indicate an intention that his son-in-law should obtain possession of any part of his estate.</p> <p>5. Wills, § 394* — what is general rule in regard to vesting of personal legacies. It is a general rule in regard to the vesting of personal legacies that if there are no independent bequests, but only a direction to pay at a future time, the vesting will be postponed until the time of payment has arrived.</p> <p>6. Wills, § 390* — when personal legacy vests at once. Where payment of a personal legacy or distribution is deferred for the convenience of the fund, the gift vests at once.</p> <p>7. Wills, § 391* — when vesting of legacies is postponed until time of division. It must be deemed the intention of a testator to postpone the time of payment of personal legacies for the personal benefit of the legatees and to provide against any improvidence on the part of the legatees so as to postpone the vesting of the legacies until the time for division, where the estate is a large one and there is a small bequest to the widow, together with small Annuities to her and a servant, and bequests aggregating six per cent, of the estate are set aside for grandchildren, and the estate is then to be divided into six equal parts by the trustees, and a distribution of one-half of these parts is directed to be made at the end of five years and the balance at the end of ten years, and one of the legatees was later adjudicated a spendthrift.</p> <p>8. Wills, § 226* — when intention of testator will be given effect in construing will. In construing wills the court will endeavor to give effect to the true intention and meaning of the testator, if this can be done without violating some well-established and positive rule of law, and such intention is to be ascertained from a consideration of the will and all of its parts.</p> <p>9. Wills, § 433* — when decree for construction of mil is not erroneous as warranting confiscation of estate by trustee. A decree in a suit for the construction of a will providing that the trustee shall distribute the estate in cash or in kind, or partly in cash or kind, “as may seem to said trustee to be for the best interest of the estate,” held not objectionable as warranting a confiscation of the estate, which consisted of stocks and bonds, in that it gave the trustee uncontrolled discretion to distribute the estate in cash or in kind, and if he decided to distribute the estate in cash it might amount to a confiscation, as his action would be subject to control of the court under such decree.</p>

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

<p>1. Husband and wife, § 76* — when husband is liable for torts committed by wife. Under Rev. St. ch. 68, sec. 4 (J. & A. ¶ 6141), for all civil injuries committed by a married woman, damages may be recovered against her alone and her husband is not responsible therefor except in cases where he would be jointly responsible with her if the marriage did not exist.</p> <p>2. Torts, § 23* — when tort feasors are jointly liable. In order that tort feasors may be jointly liable, there must be some sort of community in the wrongdoing, and the injury must in some way be due to their joint work, hut it is not necessary that they be acting together or in concert if their concurring negligence occasions the injury.</p> <p>3. Automobiles and garages — what degree of care to avoid collision required of passenger in car. A husband who is a passenger in an electric automobile owned and driven by his wife is not ordinarily required to exercise the same diligence to avoid a collision with a motorcycle that his wife, the driver of the car, is.</p> <p>4. Automobiles and garages — when evidence is insufficient to. show negligence of passenger in car. In an action by a woman who was riding on the rear seat of a motorcycle against the owner and driver of an electric automobile and her husband jointly, to recover for. injuries due to a collision due to the motorcycle, which was approaching from the south and rear, colliding with the automobile as it turned east at a street intersection, where it appeared that as the front of the automobile turned to the right the husband saw the motorcycle coming and called out sharply “look out” and then his wife turned the head of the car a little west and north, evidence held insufficient to show that the husband was negligent.</p> <p>5. Appeal and error, § 1793* — when judgment' must be reversed as to both defendants sued jointly. Where a judgment is erroneous as to one of two defendants sued jointly, it must be reversed as to the other also.</p>

<p>Abstract of the Decision.</p> <p>1. Forcible entry and detainer, § 79* — when lease is admissible as evidence of title. In an action of forcible entry and detainer against an occupant of saloon premises, held that a lease from a lessee of such premises to defendant antedating the acquisition of the premises by the plaintiff was admissible in evidence to show defendant’s title.</p> <p>2. Landlord and tenant, § 429* — when no privity of relation is created between sublessee and subsequent owner. There is no privity of relation between the occupant of premises under a sublease, antedating the sale of the land to another person, and such person, although the latter executes a new lease to the same lessee from whom the sublessee obtained the prior lease.</p> <p>3. Landlord and tenant, § 429* — when sublessee’s rights are not affected by new lease of lessee from subsequent owner. The rights of a sublessee under a lease antedating the acquisition of premises by a person are not affected by a lease from such person to the lessee under whom the sublessee has been holding.</p> <p>4. Landlord and tenant, § 429* — when sublessee does not lose his rights under lease. A sublessee does not lose his rights under a lease, where, upon the sale of the premises, and the execution of a new lease to the original lessee by the purchaser, he pays rent to the lessee and later to the lessee’s assignee, and, prior to the default in the rent due from the assignee to the owner, and upon refusal of the assignee to accept the rent, timely tenders the rent due to the owner of the premises.</p>

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

<p>Error to the Criminal Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.</p>

<p>- Appeal from the Municipal Court of Chicago; the Hon. William N. G-emmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.</p>

<p>1. Conspiracy, § 23* — what is not an essential of crime of. The gist of a conspiracy is the unlawful' agreement, and a consummation of its object or the exercise of the unlawful means is not essential 'to the crime.</p> <p>2. Conspiracy, § 22* — when exists in State. Where a confidence game is begun with artifices to obtain the victim’s confidence before the conspirators take him to another State in which the confidence game is consummated, there is a conspiracy to such extent to exercise the unlawful means in the State of Illinois.</p> <p>3. Conspiracy, § 49* — when evidence of defrauding of others by confidence game is admissible. In a criminal prosecution for conspiracy to defraud by means of the confidence game, evidence that defendant and certain others had attempted with others of the co-conspirators to defraud witnesses by similar schemes, held admissible as tending to show guilty knowledge and intent on the part of the defendant.</p> <p>4. Conspiracy, § 49* — when error to require defendant to answer questions whether acquainted with notorious confidence men. In a criminal prosecution for cotispiracy to defraud by means of the confidence game, it is error to require defendant to answer questions as to whether he was acquainted with certain notorious confidence men, especially where he answers in the affirmative and one of the men referred to is not one of his co-conspirators.</p> <p>5. Criminal law, § 160* — what is evidence of guilt. The fact that an accused resorts to manifest perjury to explain his connection with criminals does not comport with innocence.</p> <p>6. Conspiracy, § 50* — when evidence shows guilt beyond reasonable doubt. In a criminal prosecution for conspirasy to defraud by means of the confidence game, evidence held sufficient to show defendant’s guilt beyond a reasonable doubt.</p> <p>7. Criminal law, § 553* — when judgment of conviction not disturbed because of improprieties of counsel. Where the guilt of a defendant in a criminal case is established beyond a reasonable doubt by an overwhelming amount of convincing proof, the judgment against the accused will not be disturbed because of improprieties of counsel, although ordinarily such conduct would be cause for reversal, where another trial would not properly result in a different verdict.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 293* — when appraisers may consider effect of lease with revaluation clause upon value of land. Under the provisions in a lease of school fund property providing for revaluation every ten years by a board of appraisers and authorizing the appraisers, in ascertaining the fair cash value of the land, to take into consideration certain enumerated items and “any other facts or information, from whatever source, bearing upon the question of the actual value of said land, the appraisers have the right to take into consideration the effect, if any, of the lease with the ten-year revaluation clause, upon the fair cash value of the land.</p> <p>2. Landlord and tenant, § 294* — when award of appraisers fixing value of premises not disturbed. An award of appraisers fixing the fair cash value under the terms of a lease providing for revaluation of premises will not be disturbed, in the absence of mistake or fraud.</p> <p>3. Landlord and tenant, § 294* — when admissions of appraiser are insufficient to impeach appraisal. Admissions by one of the appraisers authorized to fix the fair cash value of premises under a revaluation clause in a lease, held insufficient to impeach the appraisal.</p> <p>4. Landlord and tenant, § 294* — when admissions of appraiser to impeach appraisal are inadmissible. Where an appraisal of the fair cash value of property under a revaluation clause in a lease appears to be regular on its face, admissions of an appraiser as to the method pursued in valuing the land are inadmissible.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 40* — when carrier liable for loss in loading and unloading goods. The general rule is that the loading and unloading of goods are under the carrier’s control and that the carrier is liable for any loss incident thereto, unless the shipper assumes this responsibility.</p> <p>2. Carriers, § 40* — what defects in loading carrier not liable for where shipper assumes responsibility. Where the shipper assumes the responsibility of loading, the carrier is absolved from any loss occasioned by defects in loading which are necessarily invisible to the carrier or his agent who accepts the freight for shipment, or which he cannot discover by ordinary observations, or such inspections as he can readily make.</p> <p>3. Carriers, § 40* — what is duty of carrier as to seating of gasoline tank car. The seating of the main -valve on the lower side of a tank car used for gasoline is an incident to the loading of the car, which it is the duty of the carrier to see is properly seated where the shipper does not assume the responsibility.</p> <p>4. Carriers, § 40* — when refining company is agent of shipper in seating of valve and loading tank car. A refining company is the agent of the shipper in seating the main valve in a gasoline tank car and in loading it, where the refining company orders the car for the shipper and executes a bill of lading on behalf of the shipper and loads the car, pursuant to its custom, without making arrangement with the carrier therefor.</p> <p>5. Carriers — when carrier charged with notice of defective valve in tank car. Where a valve in a gasoline tank car becomes leaky en route, the carrier cannot be charged with notice thereof until there are outward manifestations of such conditions.</p> <p>6. Carriers — when carrier not liable for loss of gasoline due to defective outlet of tank car. Where the employees of a carrier, at a point where a tank car for gasoline is to be turned over to a connecting carrier, first ascertain the leaky condition of the outlet casting of the car and immediately take steps to prevent a total loss, and it does not appear that they are negligent, the carrier is not liable for the loss.</p>

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

<p>Abstract of the Decision.</p> <p>1. Divorce, § 144* — when court has jurisdiction to adjust property rights. In a suit for divorce, a court of 'chancery has complete jurisdiction to grant all necessary relief, including a division or settlement of the property interest of the parties thereto.</p> <p>2. Divorce, § 34* — when cross-bill is germane to original bill. On a bill for divorce, a cross-bill setting up cross complainant’s claim to property held in the wife’s name, held germane to the original bill.</p> <p>■3. Divorce, § 27* — when third person conspiring with wife to defraud husband of property is proper party. Where a bill by a wife for divorce alleged that a cross defendant advanced to the wife, the other cross defendant, certain money on account of the purchase price of property brought by them jointly and was entitled to an equitable lien thereon, and the cross-bill alleged a conspiracy by cross defendants with the intent to defraud cross complainant of his interest in said property, held that the cross defendant other than the wife was a proper party.</p> <p>4. Receivers, § 4*- — when appointment of receiver to collect rents of property improper. On a bill by a wife for divorce and cross-bill by the husband against the wife and a third person, charging conspiracy to defraud cross complainant out of his interest in property held in the wife’s name which the wife claimed was bought by cross defendants jointly, and for a receiver to collect the rents from the property, held that as there were no adverse or conflicting claims to the property and no emergency or danger of loss was shown, the appointment of a receiver was improper.</p> <p>5. Receiver, § 3* — when showing insufficient to warrant appointment of receiver. On a bill by a wife* for divorce and the relinquishment of the husband’s dower interest in property in her name, and cross-bill by the husband against the wife and a third person, charging conspiracy to defraud cross complainant out of his interest in the property and asking for a receiver to protect his interests, held that as it did not clearly appear from the showing made — which consisted merely of the sworn cross-bill and affidavit denying the allegations therein — that the wife’s interest in the property had been purchased with partnership funds belonging to herself and the husband, a court of chancery would not interfere by appointing a receiver.</p> <p>6. Receivers, § 2* — when appointment of receiver to protect interest in property is unnecessary. The appointment of a receiver in a suit for a divorce to protect the husband’s interest in property in the wife’s name, and which she owns jointly with a third person, is unnecessary where, upon proper showing, the wife could have been enjoined from disposing or incumbering her interest therein during the pendency of the suit.</p>

<p>Landlord and tenant, § 257* — when declaration in action for injuries to child of tenant does not state cause of action in tort. In an action by a minor child of the tenant of a portion of a building against the landlords to recover damages for injury to his eye, due to being struck by a protruding bolt in a door on the premises, upon the wind blowing the door shut, a declaration alleging that defendants rented a part of said building to parents of plaintiff, who lived on the premises; that at the time the premises were rented the lock protruded three inches and was in a dangerous condition; that at the time of leasing defendants promised to repair it; that it became the duty of defendants to repair the lock and keep it in a reasonably safe condition, which they failed to do, and that plaintiff was injured by being struck in the eye by the bolt, upon the wind blowing the door shut, held not to state a cause of action in tort.</p>

<p>1. Criminal law, § 211* — when conduct of court not improper. The conduct of the trial judge, in a criminal prosecution for conspiracy, in manifesting sternness towards all the defendants and using reproving language towards defendants’ counsel, held to he proper.</p> <p>• 2. Criminal law, § 213* — when proper for court to call witnesses as own. A court, in a criminal case in which witnesses are hostile to the State, may call such witnesses as its own, and allow the State’s counsel to cross-examine them.</p> <p>3. Criminal law, § 218a* — when leading questions permissible on cross-examination. "Where witnesses called hy the court as its own and cross-examined hy the State are hostile to the State, leading questions are permissible, in the discretion of the court.</p> <p>4. Criminal law, § 211* — when conduct of court towards and.in presence of jury not error. The conduct of the court, in a criminal prosecution for conspiracy, in addressing the jury in approval of their verdict after they have returned such verdict is not error where there is ho evidence of his partiality.</p> <p>5. Records, § 7* — binding effect of record. Parties to a criminal casp are hound hy the record.</p> <p>. 6. Conspiracy, § 20* — what constitutes common law. A comr mon-law conspiracy is a combination of two or more persons to do a criminal or unlawful act, or to do a lawful act hy criminal or unlawful means.</p> <p>7. Conspiracy — when indictment charges common law. Counts in an indictment for conspiracy concluding “contrary to law,” held sufficient to charge a common-law conspiracy.</p> <p>8. Conspiracy, § 41* — when indictment sufficient. An indictment charging in terms a conspiracy to commit a crime by obtaining money by threats is sufficient, and it is immaterial whether it charges a common-law or statutory offense.</p> <p>9. Conspiracy, § 8* — unlawfulness of boycotts. Boycotts are unlawful.</p> <p>10. Conspiracy, § 38* — when one good count in indictment sufficient. One good count in an. indictment for conspiracy is sufficient to support a verdict.</p> <p>11. Criminal law, § 409* — when overruling of motion not preserved for review. The objection that the court erred in overruling defendant’s motion for a bill of particulars, held not preserved for review. '</p> <p>12. Indictment and information, § 45* — when motion for hill of' particulars properly denied. A motion for a bill of particulars in a criminal case is properly denied where all the substantial and material facts proved are shadowed forth with sufficient particularity in the various counts of the indictment.</p> <p>13. Indictment and information, § 45* — when hill of particulars allowed. The allowance of a bill of particulars in a criminal case is a matter within the sound discretion of the trial court, and will not be cause for reversal unless it clearly appears that defendants are damaged thereby.</p> <p>14. Indictment and information, § 45* — when hill of particulars not allowed. In a criminal prosecution for conspiracy, it is not error to refuse a bill of particulars where defendants are in nowise circumscribed in their defense by such refusal and the charges in the indictment are familiar to them all.</p> <p>15. Conspiracy, § 50* — when evidence sufficient to support verdict of guilty. In a criminal prosecution in which defendants were charged with maintaining a boycott and obtaining money by nleans of a boycott, evidence held sufficient to support a verdict of guilty.</p> <p>16. Criminal law, § 525* — when errors in rulings on evidence not ground for reversal. A judgment in a criminal case will not be disturbed because of errors in rulings on evidence where there is sufficient competent evidence to establish the defendants’ guilt.</p> <p>17. Jury, § 50* — when juror may he excused. It is within the .discretion of the trial court to excuse a juror from service after he has been sworn to try the case.</p> <p>18. Jury, § 72* — when disallowance of peremptory challenge • proper. A peremptory challenge of a juror after he has been sworn is properly denied, and he can only be challenged for cause.</p> <p>19. Jury, § 50* — when duty of court to discharge juror. It is the duty of the trial court to discharge a juror who has been sworn, if it appears that owing to illness he will be unable to sit through the trial.</p> <p>20. Criminal law, § 220* — when examination of witnesses within discretion of court. It is within the discretion of the trial court in a criminal case to allow the production and examination by the State of witnesses whose names are not upon the indictment, and such discretion cannot be reviewed where defendants are not taken by surprise.</p> <p>21. Criminal law, § 220* — when defendants may not complain of examination of witnesses whose names are not indorsed on indictment. Where the court in a criminal case affords defendants’ counsel every opportunity to examine witnesses whose names are not on the indictment, confer with them and tender them for such purpose, and counsel do not avail themselves of such privilege, they cannot be heard to complain of the examination of such witnesses by the State.</p> <p>22. Criminal law, § 494* — when defendants cannot complain of objectionable remarks by counsel for State. Defendants in a criminal case cannot complain of objectionable remarks by counsel for the State in their closing argument where such remarks were incited by arguments of counsel for defendants and were used in answering such arguments.</p> <p>23. Criminal law, § 234* — when remarks of counsel for State are improper. In a criminal prosecution for conspiracy, where, at the conclusion of the evidence, the State dismissed as to two defendants and one of the defendants’ counsel criticised the State’s attorney for not dismissing them sooner, held that remarks in the closing argument of counsel for the State, that the reason why he had not dismissed the case earlier as to such defendants was that he had waited until the case was closed in the expectation that the dismissed defendants would take the stand and he would have the opportunity of cross-examining them, were proper, but the further statement, that an honest man against whom a charge is made invites investigation and puts himself there (indicating witness stand) and submits to any kind of a question, and asking why such defendants did not do it, was improper.</p> <p>24. Criminal law, § 525* — -when improper remarks of counsel for State not ground for reversal. Improper remarks of counsel for the State are not ground for reversal where the evidence as to the guilt of the defendants is clear.</p> <p>25. Criminal law, § 590* — when improper remarks of counsel for State not ground for reversal. Improper remarks of counsel for the State in a criminal prosecution in stating that an honest man invites investigation of his conduct, and asking why certain defendants had not gone on the witness stand, held not ground for reversal, where the court instructed the jury not to consider such remarks, and, in the selection of the jury, each juror was frequently told by defendants’ counsel that the law did not require any defendant to take the stand.</p> <p>26. Criminal law, § 234* — when comments of counsel for State not improper. Comments of counsel for the State, in a criminal prosecution for conspiracy, in answering an argument of one of the counsel for defendants who stated that he was willing to go to the penitentiary and serve a year of his client’s time, held not improper.</p> <p>27. Conspiracy, § 35* — when charge sufficient. The charge in a criminal prosecution for conspiracy involving a boycott and obtaining money by means of a boycott, held sufficient.</p> <p>28. Criminal law, § 570* — when refusal of instructions not reversible error. The refusal of requested instructions for defendants in a criminal case is not ground for reversal where, if given, the jury would not have been justified in returning a different verdict.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>1. Marriage, § 2*- — what law governs validity. Where a marriage is performed in the State of Illinois and its validity is there challenged, the laws of such State must govern the marital status of the parties.</p> <p>2. Divorce, § 172* — when marriage in State within one year of party divorced in foreign State is valid. Under Rev. St. ch. 40, sec. la (J. & A. If 4216), providing that in every case in which a divorce has been granted for any of the several causes mentioned in section 1 of the Act (J. & A. If 4215), neither party shall marry again within one year, and section 2 of the Uniform Evasion Act [Cal. Ill. St. Supp. 1916, f 7363(2)], providing that no marriage shall be contracted in this State by a party residing and intending to continue and reside in another State, if such marriage would be void if contracted in such other State, and every such marriage in this State shall be void, a marriage within one year of divorce of the husband, between residents of the State of Indiana, in Illinois who did not intend to return to Indiana, but did intend to go and did go to Washington and finally returned to Illinois, is valid where the Indiana divorce was based upon “cruel and inhuman treatment,” a cause not contained in section 1, and the marriage was valid within the Indiana statute, because the parties intended to become and did become residents of another State.</p>

<p>1. Pleading, § 123* — what is effect of failure to answer plea. An unanswered plea setting forth a good defense is conclusive against plaintiff’s right of recovery.</p> <p>2. Principal and surety, § 6* — how contract of surety construed. The contract of. a surety must be construed strictly and he cannot be held responsible beyond the precise terms of his undertaking.</p> <p>3. Principal and surety — when surety released from liability. A stipulation without the consent of the surety, to delay the issuance of an execution for one month, entered into between the debtor and creditor, and the failure to have an execution issued for nearly five years after a judgment against the debtor releases the surety from liability.</p>

<p>Error to the Municipal Court of Chicago; the. Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the March term, 191J.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the March term, 1917.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 866* — when abstract insufficient. An abstract containing captions of documents filed, jurats and other unserviceable matter, setting forth the decree and master’s report in hcec verba, and omitting important documents introduced in evidence, held insufficient.</p> <p>2. Appeal and error, § 1272* — when presumed that evidence sufficient to sustain findings of master and decree. It will be presumed that the evidence is sufficient to support the findings of the master and the decree where important documents are not preserved in the record.</p> <p>3. Appeal and error, § 864* — who has duty to malee complete record. Matters pertaining to the completeness of the abstract of the record are the concern of the appellant.</p> <p>4. Building and construction contracts, § 25* — when only substantial performance of contract necessary. The owner of property Is not entitled to damages for delays in the performance of a building contract caused by her own acts, and substantial performance is all that is required of the contractor.</p> <p>5. Appeal and erboe, § 1399* — when findings of fact by master approved by chancellor not disturbed. Where the evidence is conflicting the findings of fact by the master approved by the chancellor will not be disturbed on review where the evidence of the successful party found in the record is, if uncontradicted, sufficient to support the decree.</p> <p>6. Appeal and error, § 1399* — what weight given findings of master. In case of conflicting evidence, the findings of a master are to be given the same weight as the verdict1 of a jury.</p> <p>7. Interest, § 1* — when allowance in equity proper. The allowance of interest in a suit for a mechanic’s lien from the date of the master’s report is not error, since interest, in equity, is allowed because of equitable considerations, and equity gives or withholds interest, as under all the circumstances, it deems equitable and just.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. David F. Matchett, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 189* — what is liability of carrier of interstate shipment. Every carrier connected with an interstate shipment is liable for damage or loss to the property so received or transported, caused by its own negligence.</p> <p>2. Carriers, § 189* — when bill of lading of interstate shipment construed as contract of connecting carrier. The bill of lading for an interstate contract issued by an initial carrier is to be construed, under the provisions of the Carmack Amendment to the Interstate Commerce Act, as the contract of the connecting carrier.</p> <p>3. Carriers, § 197* — when action for breach of contract may be maintained against terminal carrier. An action for breach of contract for failure to properly transport and deliver goods, instead of an action in tort only, may be maintained against a terminal carrier, where goods are received by the consignee in a frozen condition, since the contract of the initial carrier is. the contract of the terminal carrier.</p> <p>4. Carriers, § 196*- — when evidence shows receipt of canned goods by terminal carrier in unfrozen condition. In an action for breach of contract by a consignee against a terminal carrier for failure to transport canned tomatoes in safety, where it appeared that ten per cent, of the goods were examined by the federal authorities at an eastern port, to which they had been shipped from a foreign country, and found to be in good condition; that goods in the cases would not freeze unless' exposed to a temperature of 6° Fahr. or lower, and that the initial carrier delivered bills of lading which recited that the goods were in apparent good order, evidence held sufficient to sustain a finding that the goods were not frozen at the time of their receipt by the terminal carrier from an intermediate carrier.</p> <p>5. Carriers, § 199* — when hill' of lading is prima facie proof of condition of goods at time of receipt hy initial carrier. Bills of lading issued by an initial carrier reciting that the goods are in apparent good order are prima facie proof of the condition of the goods at the time they were received by the initial carrier, for shipment, in an action by a consignee against a terminal carrier for breach of contract in failing to transport the goods safely.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 120* — how policies construed. Policies of insurance must, where the language is doubtful, be construed most strongly in favor of the assured.</p> <p>2. Insurance, § 397a* — what losses covered by burglary policy. A burglary policy insuring the owner of a hotel building against loss by robbery (commonly known as holdup) occasioned by felonious, violent and forcible abstraction of property from its office, counting room or store, where such loss was not occasioned by any employee and where the loss was brought about by violent and forcible means (commonly known as holdup), and where the premises were directly under the charge or care of at least two persons, must be construed as insuring the owner against loss occasioned by a forcible and violent abstraction of its property from its premises by breaking open a locked case back of a cashier’s desk and cigar stand in which the cashier had placed a tin box filled with money during her temporary absence from her desk, and the liability for loss cannot be limited by the word “holdup” to a violent taking of the same under circumstances which would constitute robbery.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 336* — when copy of note filed is not part of declaration. Where a copy of a promissory note is filed with or attached to a declaration, it does not become a part thereof.</p> <p>2. Chattel mortgages, § 216* — when assignment of notes not stating on faces to be secured by chattel mortgage not invalidated. Courtwright’s Ill. St. ch. 107, sec. 8 (J. & A. f 7602), providing that all notes secured by chattel mortgages shall state upon their face that they are so secured, and, when assigned by the payee, shall be subject to all defenses existing between the payee and the payor, does not in'validate an assignment of notes, even though they are, and appear on their faces jto be, secured by a chattel mortgage, but merely permits a person sued on such notes to set up any defense existing between the payee and payor.</p> <p>3. Municipal Court of Chicago, § 13* — when aXlegations in statement of claim taken as true. The statements of a plaintiff in his statement of claim as to the amount due on promissory notes sued on must be taken as strictly true until met by a sufficient denial.</p> <p>4. Municipal Court of Chicago, § 13* — when affidavit of merits insufficient to put plaintiff to proof of claim. In an action in the Municipal Court of Chicago on promissory • notes, where plaintiff set up in his statement of claim that there was legally due him the full amount claimed in the statement, held that an allegation in defendant’s affidavit of merits merely denying any knowledge of the matter was not sufficient to put plaintiff on proof of allegation in his statement of claim.</p> <p>5. Municipal Court of Chicago, § 13* — when affidavit of merits in action on notes is insufficient. In an action on four promissory notes by the assignee against the maker, held that an affidavit of merits which failed to present the defenses that the consideration for the notes had failed and that there was a breach of warranty of the machinery which represented the consideration for the notes, and that the notes were within the provisions of J. & A. If 7602, providing that all notes secured by chattel mortgage shall state such fact upon their faces and, when assigned, shall be subject to all defenses existing between the payee and payor, was insufficient to defeat plaintiff’s claim that he was a bona fide holder in due course of the notes.</p> <p>6. Venue, § 14* — when motion for Change of is too late. A petition for change of venue, presented after two affidavits of merits have been stricken from the files and after counsel for plaintiff has presented and argued his motion to strike an amended second affidavit of merits, is too late.</p> <p>7. Venue, § 19* — how petition for change of construed. A petition for a change of venue must be strictly construed.</p> <p>8. Venue, § 20* — when petition for change of is insufficient. A petition for a change of venue which incorrectly designates the petitioner, who is the plaintiff, as defendant, and is signed by a certain person as authorized agent for defendant, and alleges that “he” could not expect a fair trial, and fails to allege that the defendant could not receive a fair trial, is insufficient.</p> <p>9. Appeal and ebbob, § 1094* — what is improper matter in brief. It is highly improper for counsel to use in their brief insolent and opprobrious language regarding the trial court in making its rulings, even if the court has committed error.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 339* — when servant assumes risk of accident. Where a servant has notice for several days prior to an accident of the presence near a punch press of pieces of wood, junk and rubbish of various kinds, he assumes any risk of an accident happening from pieces of wood getting under the foot lever and throttle of the machine, which act causes a hammer, a part of the machine, to be released and drop upon his hand, the machine being ordinarily operated by means of the foot pedal.</p> <p>2. Master and servant, § 123* — what is duty of master as to safe place to work. It is the duty of a master to use reasonable care in providing a punch-press operator with a safe place to work, and also to keep the machinery and tools used by the operator in a reasonably safe condition.</p> <p>3. Master and servant, § 764* — when verdict properly directed for defendant in Action by employee for personal injuries. In an action by a punch-press operator to recover for personal injuries sustained as the result of a piece of wood getting in the foot lever of the machine at which plaintiff was working and causing a' hammer to be released and fall on plaintiff’s hand, evidence held insufficient to show any negligence of defendant, and to warrant the directing of.a verdict in defendant’s favor.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Judgment, § 256* — what error hy cleric in entering may he corrected at subsequent term. Where a clerk of court, after a case coming on for trial, after the vacation of a judgment hy confession, was dismissed for want of prosecution, made an entry in his minute book indicating a dismissal for want of prosecution, but later, in transcribing the order from the minute book to the “half sheet,” wrote that the order to vacate the judgment of the previous date was dismissed for want of prosecution, held that a clerical error was committed which might properly be corrected by order nunc pro tune at . a subsequent term.</p> <p>2. Judgment, § 263* — when minutes of clerk sufficient to enable court to determine what order was for purpose of correction of error. The minutes of a clerk “Dis. wt.' Pros. p. c.,” meaning, dismissed for want of prosecution at plaintiff’s costs, made at the time of the trial of an action on promissory notes, upon failure of either party to appear, a judgment by confession having been vacated at a previous time, held sufficient to determine what the order was so as to warrant the correction at a subsequent term of the clerical error of the clerk, in transcribing the order from the minute book to the “half sheet,” by writing that the order to vacate the judgment had been dismissed.</p> <p>3. Dismissal, nonsuit and Discontinuance, § 38* — when order dismissing case for want of prosecution is proper. Where a defendant has procured the vacation of a judgment by confession and plaintiff fails to appear at the time of trial, an order dismissing the case for want of prosecution is proper.</p> <p>4. Judgment, § 86* — what is effect of opening judgment by confession on burden of proof. Where a defendant has been let in to plead, upon the opening of a judgment by confession, the burden rests upon plaintiff to prove his case the same as if there had been no judgment by confession.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 50* — when evidence insufficient to show grounds for discharge of servant. In an action by a servant employed as physical instructor for a society to recover damages for wrongful discharge during the term of his contract, where the contract provided for the creation of a technical committee, whose duty it was to have conferences with plaintiff regarding the work, and which was made an investigator and arbiter of any matters arising in connection with the work, evidence held insufficient to show any refusal of plaintiff to furnish reports to such committee, or appear before it, or adverse report by such committee, so as to warrant a discharge of plaintiff by the society.</p> <p>2. Master and servant — when master hound hy terms of contract as to committee of supervision of work. Where a contract of employment of a physical instructor provides for the employment of a certain committee for handling and disposing of questions concerning the servant’s work, the master is bound thereby and may not require the servant to be answerable to a different committee.</p> <p>3. Master and servant, § 50* — when evidence insufficient to show grounds for discharge. In an action by a servant employed as physical director of a society, held that, even though plaintiff was answerable to a special supervising committee instead of the regular committee provided by the contract, the evidence was insufficient to show a serious refusal on the part of plaintiff to appear before such committee so as to warrant his discharge.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Appeal from .the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment — when question of estoppel on ground of former adjudication is waived. The question of estoppel, by a divorce decree providing for conveyance of certain real estate from the husband to the wife, to have title to personal property determined in a subsequent replevin suit by the wife against the husband is waived by defendant’s failure to present it in apt time, where defendant was represented by counsel at the time plaintiff made application to the chancellor during the divorce suit for an order allowing her to replevy such personal property, and when the order was entered concerning it, and raised no such question of estoppel on ground of a former adjudication.</p> <p>„2. Judgment, § 502* — what estoppel by limited to. Estoppel by judgment is limited to questions involved in the issue and not to incidental matter.</p> <p>3. Judgment, § 502* — when decree of divorce providing for property rights in real- estate does not estop party seeking recovery of personal property. A decree in a divorce suit providing for the conveyance of certain real dstate from the husband to the wife does not create an estoppel by judgment as to personal property, which was not involved in and was not essential to the conclusion reached in the divorce suit, in an action by the wife to replevy such personal property.</p> <p>4. Judgment, § 688* — who has burden of proving former adjudication. Where a plea of former adjudication is relied upon, the burden of proving such plea is upon the defendant, and it must be shown what was determined by' the former judgment, and such proof must be clear, certain and convincing.</p> <p>5. Judgment, § 444* — when in former proceeding creates an estoppel. A judgment in a former proceeding is an estoppel only where it appears from the face of the record, or by extrinsic evidence, that the precise matter in controversy in the suit at bar was raised and determined in the proceeding which is urged as an estoppel.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William Fekjmobe Cooper, 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>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Tbial, § 216* — what evidence determines rights of defendant under motion for directed verdict. "Where the defendants at the close of the plaintiff’s evidence move for directed verdict, the evidence at such time must be considered in determining the defendants’ rights under the motion.</p> <p>2. Execution, § 312* — when presumed that execution creditor directed officer to levy in accordance with process. In an action against a sheriff and an execution creditor to recover for alleged wrongful levy of execution, or abuse of process, by the sheriff, held that it would be presumed, in the absence of evidence tending to show participation by the execution creditor in the claimed trespass or knowing approval and ratification of the act, that it merely directed the officer to levy on property of the judgment debtor in accordance with the process.</p> <p>3. Execution, § 312* — when execution creditor responsible for trespass by sheriff making wrongful levy of execution. To render an execution creditor responsible for a sheriff’s alleged trespass in making a wrongful levy of execution, it is necessary to prove that the execution creditor through some authorized agent advised, directed or encouraged the abuse of the process complained of, of, knowing of its abuse and for its own benefit, ratified it, and this must be proved by legitimate evidence.</p> <p>4. Execution, § 309* — what essential to show ratification by creditor of abuse of process. The receipt by attorneys for an execution creditor of money paid, which is obtained under a wrongful execution levied by a sheriff, does not constitute ratification by the execution creditor as principal, unless it is shown that such execution creditor had knowledge of the material facts and circumstances of the tort of which the proceeds were the fruits.</p> <p>5. Appeal and bbbob, § 1793* — when joint judgment erroneous as to both defendants. Where a joint judgment in an action against a sheriff and an execution creditor for damages for abuse of process in wrongful levying of an execution is erroneous as to the execution creditor, it is likewise erroneous as to the other defendant, and must .be reversed.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Demis E. Sum.ivam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.</p>

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

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

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

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

<p>1. Municipal Coubt of Chicago, § 25* — applicability of provisions of Practice Act relating to approval of appeal bond to appeals from. The provisions of sections 92 and 93 of the Practice Act (J. & A. 1111 8629, 8630), relative to the approval of an appeal bond by order of court, or order authorizing the clerk to approve it, applies to appeals from the Municipal Court of Chicago as well as from other courts of record.</p> <p>2. Municipal Coubt of Chicago, § 25* — when appeal from not perfected. An appeal from the Municipal Court of Chicago is not perfected where there is no order of court approving an appeal bond, or authorizing the clerk to approve it, as is required by the Practice Act, sees. 92 and 93 (J. & A. || 8629, 8630).</p> <p>3. Municipal Coubt of Chicago, § 25* — when appeal must be dismissed. Where an appeal is not perfected owing to the fact that there is no approval of an appeal bond by order of court, nor any order authorizing the clerk to approve it, as required by the Practice Act, secs. 92, 93 (J. & A. HI 8629, 8630), the appeal must be dismissed.</p> <p>4. Municipal Coubt of Chicago, § 27* — when presumed that action of court in striking affidavit of defense and entering judgment by default is correct. It must be. presumed on appeal from the Municipal Court' of Chicago that the court’s actiori in striking an affidavit of defense and entering judgment by default was correct where the motion and decision of the court thereon are not preserved in the bill of exceptions.</p>

<p>Error to the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, 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>1. Railroads, § 257* — what was obligation at common Taw to provide and maintain crossings at highways. At common law a railway company constructing its line of road was under obligation to provide safe and convenient crossings at highways then existing, but no duty devolved upon it to construct and maintain a crossing over a highway subsequently created.</p> <p>2. Railroads, § 258* — what is meaning of word “safe" in act relating to construction and maintenance of railroad street crossings. The word “safe” in Hurd’s Rev. St. ch. 114, sec. 8 (J. & A. If 8820), relating to the construction and maintenance of crossings of railroads over highways and streets, means “reasonably safe.”</p> <p>3. Railroads, § 258*- — what is duty of railroads under statute to provide safe and convenient crossings at highways. The statutory duty of railroads to provide safe and convenient crossings at highways extends not only to crossings in existence when the railroad was constructed but to those created afterwards as well, and includes those in cities as well as those in rural communities.</p> <p>4. Railroads, § 258*- — what care required in construction and maintenance of highway intersection. Under Hurd’s Rev. St. ch. 114, sec. 8 (J. & A. If 8820), providing that at all railroad crossings, highways and streets, railroads shall construct and maintain such crossings so that at all times they shall be safe as to persons and property, railroads are required to exercise reasonable care in the construction and maintenance of highway intersections, and they are entitled to notice, either actual or constructive, of a defective condition, as a prerequisite to a recovery against them for damages for personal injuries sustained by a pedestrian due to a defective condition of such portion of the highway.</p> <p>5. Instructions, § 38* — when instruction should not be given in exact language of statute. Where a modified construction has been placed upon a statute by the Supreme Court, an instruction in the language of the statute should be framed accordingly, as otherwise it would be apt to mislead the jury, and in such a situation the better practice is to instruct the jury as to the legal effect of the statute.</p> <p>6. Railroads, § 257* — when not incumbent upon railroad to maintain roadway in reasonably safe condition for pedestrians. Where a railroad company provides a sidewalk on each side of the street at a crossing over its right of way in a city, it is not under any duty to maintain the roadway allotted to vehicles and similar traffic in a reasonably safe condition for pedestrians.</p> <p>7. Railroads, § 257* — when question for jury whether plank, road over crossing is reasonably safe for vehicle traffic. In an action by a pedestrian to recover damages for personal injuries sustained as the result of tripping on a defective plank in the plank portion of the roadway over the railroad right of way allotted to vehicles and similar traffic, while attempting to pass over the crossing to defendant’s station, held that it was a question for the jury whether or not the plank road was reasonably safe for vehicle traffic.</p> <p>8. Railroads, § 257* — when instruction on nonliability Of railroad company for injury to pedestrian passing over crossing on right of way is erroneously refused. In an action by a pedestrian to recover damages for special injuries sustained as the result of stepping on a defective plank in the portion of the roadway of a crossing over defendant’s right of way allotted to vehicles and similar traffic, after passing from the sidewalk on one side of a street over the right of way, and while on her way to the station, held that an instruction that if the defendant did not expressly or impliedly invite the public to cross the street at and over their right of way, then they were not bound to keep the whole crossing in a reasonably safe condition for pedestrians, but they had discharged their duty if they exercised ordinary care to keep their sidewalks in a reasonably safe condition for pedestrians and the middle of the crossing in a reasonably safe condition for vehicle and similar traffic, and that if defendant did not expressly or impliedly invite the public to cross the street and it had exercised ordinary care to maintain the crossing where the plaintiff fell in a reasonably safe condition for vehicle and similar traffic, then defendant was not guilty, was improperly refused.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 464* — when tender of rent insufficient to prevent forfeiture of lease. A tender of a less amount than is actually due and owing by a tenant will not prevent a forfeiture of the lease for failure to pay rent, even though the tenant promises to pay the balance of the rent within a short time thereafter.</p> <p>2. Corporations — when affidavit of defense is insufficient to question corporation’s right to Tyring action. In an action of forcible entry and detainer by a foreign corporation as landlord to recover possession of premises from a tenant, held that an affidavit of defense which contained no averment that the plaintiff was organized for pecuniary profit, and did not negative the fact that plaintiff came within the exceptions of the act regulating the admission of foreign corporations for profit to do business in the State, Hurd’s Rev. St. ch. 32 (J. & A. K 2418 et seq.), was insufficient to question plaintiff’s right to bring the action.</p> <p>3. Appeal and error, § 1088* — when error of court in excluding evidence may not be considered. Any error of the trial court in excluding evidence cannot be considered on appeal where the party complaining has failed to set it forth in his brief or to refer the court thereto in the abstract or transcript of the record.</p>

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

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

<p>1. Cancellation of instruments, § 35* — when evidence in action to cancel notes for corporate stock and borrowed money shows fraud. On a bill to rescind notes given partly for the purchase of corporate stock in an insurance company and partly for money borrowed and a trust deed given as security, evidence held sufficient to show fraudulent representations as to the character and financial condition of the insurance company.</p> <p>2. Judgment, § 473* — when decree of foreign court vesting title to notes for stock and trust deeds in superintendent of insurance is pot binding in prior undecided suit. A decree in a suit in a foreign Court vesting the title to notes and trust deeds given to an insurance company and trustee respectively, for the purchase price of corporate stock and for a loan, in the foreign superintendent of insurance, cannot affect the rights of the purchasers of such stock in a prior undecided suit to rescind their contract, where they were not parties to the suit in the foreign court, and the domestic court has jurisdiction of all the parties.</p> <p>3. Bills and notes, § 102* — what are not negotiable instruments. Mortgages and trust deeds are not negotiable instruments.</p> <p>4. Insurance, § 26* — when company must deposit required amount of notes and bonds with State superintendent of insurance for security of policyholders. An insurance company organized under section 700, art. VI, ch. 119, Rev. St. 1899 of Missouri, and for the purposes enumerated in section 6995 of writing health and accident insurance, must comply with section 6922 of chapter 61, providing that no existing company organized under any general or special law of the State and transacting business of the character designated in section 6895, accident insurance, and no organized company shall commence, continue or carry on business until the sum of $100,000 in notes or bonds have been deposited with the superintendent of the insurance department for the security of its policyholders.</p> <p>5. Insurance, § 26* — what are rights of State superintendent of insurance as to secured notes or bonds deposited for benefit of policyholders. Under section 6922 of chapter 61 of the statutes of the State of Missouri, relating to the filing of notes or bonds to a specific value secured by mortgages or trust deeds with the State superintendent oí insurance for the benefit of policyholders, the rights of the superintendent are superior to those of the makers of notes and trust deeds so deposited, to the extent that there is proof of the existence of such policyholders having liens and the amounts thereof.</p> <p>6. Insurance, § 26* — when "burden is on State superintendent of insurance to show existence of bona fide policyholders having liens on deposited securities. In a suit by the purchasers of stock in an insurance company to rescind such contract, including notes antitrust deeds given in pursuance thereto, and in which the State superintendent of a foreign State was a party, claiming right to the notes and trust deeds for the benefit of policyholders, held that the burden rested upon such superintendent to show the existence of bbna fide policyholders having liens.</p> <p>7. Insurance, § 26* — when exclusion of evidence of "knowledge of receiver of insurance company of existing policy claims is immaterial. In a suit by the purchaser oi stock in an insurance company to rescind such contract, including notes and trust deeds given in pursuance thereto, and in which the State superintendent of a foreign State was a party, held that the exclusion of evidence that the receiver had knowledge of existing, valid, unpaid policy claims outstanding, of a certain amount, was immaterial where, under the decree under which the contract was rescinded, the superintendent acquired more than sufficient property to pay all outstanding indebtedness to policyholders, the liability to whom he sought to prove.</p> <p>8. Insurance, § 26* — when decree of foreclosure in favor of State superintendent is improper. A decree in favor of a foreign State superintendent of insurance for the foreclosure of trust deeds, filed with such superintendent for the benefit of policyholders, is improper unless it is shown that some specific amount is due, or may become due on account of such policyholders and that such amount is a claim against the special 'deposit.</p> <p>9. Appeal and error, § 1214* — when error affecting nonappealing codefendant may not be urged. Defendants cannot assign error in their behalf because of errors affecting a nonappealing codefendant.</p>

<p>Abstract of the Decision.</p> <p>1. Accord and satisfaction, § 4* — when retention of check, constitutes. Where there is a bona fide dispute between parties as to the amount due one of them from the other, and a check is given by one party upon condition that it is to be received in full settlement of the claim, and the claimant retains possession of the check, there is an accord and satisfaction.</p> <p>2. Accord and satisfaction, § 10* — when question for jury. In an action to recover an alleged balance.of an account due to sheep shippers from commission merchants, where, at the end of the season, a check was sent by defendants to plaintiffs in payment of an account but there had been no dispute in regard to the amount due, and the check was deposited in a bank in the regular course of business and a claim afterwards made for the alleged balance, held, that it was a question for the jury whether there was an accord and satisfaction.</p>

<p>Abstract of the Decision.</p> <p>1. Bbokebs, § 7* — when evidence shows employment as. In an action by real estate brokers for a commission for sale of real estate, evidence held sufficient to show employment of plaintiffs by defendant.</p> <p>2. Bbokebs, § 90* — when evidence shows to be procuring cause of sale. In an action to recover a commission for the sale of real estate, evidence held sufficient to show that plaintiffs were the procuring cause of the sale.</p> <p>3. Bbokebs, § 64* — when implied obligation to pay usual brokerage fee arises. Where brokers are employed to sell a piece of real estate, there is the implied obligation to pay the usual brokerage fee and not to compensate them for the time and effort expended.</p> <p>4. Bbokebs, § 92* — when evidence as to value of services is shown. In an action by brokers to recover a commission for the sale of real estate, there was evidence in regard to the value of services rendered where the testimony of a real estate broker, that the usual and reasonable compensation was a certain per cent., was uncontradicted, and there was also competent evidence from which the jury could base a finding as to the sale or exchange price.</p> <p>5. Appeal and ebbob, § 450* — when admission of incompetent evidence cannot be complained of. The admission of incompetent evidence cannot be complained of on appeal where no objection was made in the trial court.</p> <p>6. Evidence, § 366* — when inadmissible as conclusion of witness. In an action by real estate brokers against the owner for a commission, in which the issue is whether the plaintiffs were the procuring cause of the sale, the evidence of the purchasers upon such question is inadmissible as amounting to a conclusion upon an ultimate fact to be decided by the jury.</p> <p>7. Bbokebs, § 85* — when evidence of purchaser as to effect of efforts of brokers is inadmissible. In an action by real estate brokers to recover a commission for the sale of real estate, evidence of one of the purchasers as to the impression which the efforts of plaintiffs had on their minds is admissible, but it is improper to ask such witness whether he was induced by the talk with plaintiffs’ representative to transfer the exchanged property to the seller,</p> <p>8. Appeal and ebbob, § 1498* — when error in exclusion of evidence is not reversible. In an action by real estate brokers to recover a commission for the sale of real estate, the refusal of the court to allow the answer of one of the purchasers as witness for plaintiffs as to whether the talk he had with the representative of plaintiffs increased his desire for the property was not reversible error, where the witness and the other purchaser had already disclosed in their testimony the extent to which plaintiffs’ representative had brought them into an agreement with defendant’s terms.</p> <p>9. Brokers, § 97* — when instruction on right to commissions is not erroneous. In an action by real estate agents to recover a commission for the sale of real estate, an instruction that if plaintiffs were employed by defendant to effect an exchange or sale of the property, and were the efficient and procuring cause of the sale, they were entitled to a commission, no matter how slight the services performed might appear to be, was held to be correct, and not misleading.</p> <p>10. Brokers, § 37* — when entitled to a commission. Brokers who are the procuring cause of a sale of real estate, and were employed to make the sale, are entitled to a commission, regardless of how little time they may have expended.</p> <p>11. Trial, § 232* — when denial of request that document he taken to jury room is not error. The ruling of the trial court denying a request of defendant’s counsel that a certain document be taken to the jury room is not error where the defendant’s counsel erroneously referred to the document as a certain exhibit, which exhibit had not been received in evidence.</p>

<p>1. Municipal corporations, § 119* — when power to remove village officers exists. In the absence of anything in a statute to show a contrary intention, the power to remove village officers is incidental to the power to appoint.</p> <p>2. Municipal corporations, § 112* — what is power, of president of village hoard of trustees as to appointment of officers. The provision in the Cities and Villages Act, art. XI, sec. 9 (J. & A. 1526), providing that the president of the board of trustees shall have the same powers as a mayor, is controlled by section 11 (J. & A. 1f 1528), providing that the president and board of trustees may appoint the officers necessary to carry into effect the powers conferred upon villages, to prescribe their duties and fees, etc., and which places the power of appointment in the hands of the president and village board.</p> <p>3. Municipal corporations, § 119* — what is authority of president of hoard of village trustees as to removal of officers. The president of a board of village trustees possesses no more authority than any other trustee, even in the removal of officers appointed by him and the hoard.</p>

<p>Abstract of the Decision.</p> <p>1. Exchange of pbopebty, § 1* — when evidence shows that name of party was on contract at time of execution. Evidence of the parties and a stipulation that a bill of complaint set up a true and correct copy of an agreement for exchange of property as executed by the parties, and in the agreement the name of one of the parties appeared, held sufficient to show that the name of such party appeared in the contract at the time it was made.</p> <p>2. Brokers, § 25* — when evidence does not show receipt of excessive fees. Evidence held insufficient to show that real estate brokers in the three deals made in the course of the indirect exchange of property through a third person received more than their legitimate fees.</p> <p>3. Brokers, § 25* — when evidence shows that broker used best endeavors in behalf of owners. In a suit against brokers and a third person acting as a medium for the indirect exchange of real estate for an accounting of profits, evidence held insufficient to show that such person acted in a fiduciary capacity or that the brokers used other than their best endeavors in behalf of complainants.</p>

<p>1. Municipal Court of Chicago, § 19* — what is not a valid judgment order of. An abbreviated minute of the clerk of the Municipal Court of Chicago, “Fndg iss vs dft das twenty-two hundred and thirty-eight and 88/100 dollars ($2238.88) Judg on fndg vs dft twenty-two hundred and thirty-eight and 88/100 dollars ($2238.88) & C.,” is not a valid judgment order.</p> <p>2. Municipal Court of Chicago, § 19* — when judgment order in abbreviated form is sufficient. Under the Municipal Court Act, sec. 62 (J. & A. V 3379), providing that the chief justice shall prescribe abbreviated forms for the .entry of orders, which shall be given the same effect as if entered in full, a judgment order in abbreviated form reciting in unequivocal language, in accordance with such forms, that a finding of the issues has been made against the defendant, stating the amount of the damages assessed and that judgment is entered on the finding against the defendant for that amount and costs, is sufficient.</p> <p>3. Municipal Court of Chicago, § 19* — what is sufficient certified copy of record of judgment order of. Under the Municipal Court Act, sec. 62 (J. & A. If 3379), providing that if any certified transcript of the record, or any portion thereof, of any suit or proceeding in said court is required, the same shall be written out in full from such abbreviated forms «and duly authenticated according to law, a certified copy of the record of a judgment order, as amplified from its abbreviated form, is sufficient.</p> <p>4. Municipal Court of Chicago, § 19* — when error of clerk in preparing transcript of judgment from half-sheet is immaterial. The fact that the clerk of the Municipal Court of Chicago, in preparing a transcript of a judgment, looked at the half-sheet containing his minute of the judgment oráer and not at the judgment order is immaterial where the certified extended record is a full statement of the final record of the judgment.</p> <p>5. Municipal Court of Chicago, § 2* — refusal to consider constitutionality of act. The constitutionality of the Municipal Court Act (J. & A. 1T 3313 et seq.) will not be considered, since during the years the court has been in existence, property rights involving a large amount of money and personal and property rights affecting a large number of persons have been litigated and decided under the act.</p> <p>6. Municipal Court of Chicago, § 23* — what constitutes raising of question of constitutionality of act. The question of the constitutionality of the Municipal Court Act (J. & A. U 3313 et seq.) is raised where the contention is made that the provisions of the constitution were not in fact complied with in enacting the act and consequently such' question will not be considered.</p>

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

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

<p>1. Appeal and error, § 1691*- — When objections to evidence are waived. Specific objections to evidence which might have been cured had they been raised at the trial are waived if not specifically made there, and the statement of one waives all other objections.</p> <p>2. Appeal and error, § 1803*- — when cause will not be remanded for new trial. A cause will not be remanded for new trial on account of a supposed absence of formal proof of an indisputable fact of common knowledge.</p> <p>3. Evidence, § 154* — what constitutes admission that defendant street railroad is bound by ordinance under which it was operating. The words and actions and failure of appellant’s counsel to make specific objections at the trial as to the ordinance offered in evidence under which defendant was operating as a street car company, held to be an admission that defendant was bound by the terms of such ordinance and that it was applicable to the situation before éourt and jury and in force and effect at the time of the accident in question, in an action to recover damages for death of such accident.</p> <p>4. Street railroads, § 44* — when verdict in favor of city does not exonerate street railroad from liability for damages for accident due to defective condition of street. Where, by the terms of an ordinance under which a street car company was operating its tracks in the city streets, the company was obligated to keep such portion of the street as was so occupied by it in repair, a verdict in favor of the city in an action to recover damages due to an accident arising from such portion of the street being in bad repair, held not to preclude a verdict against the company.</p> <p>5. Street railroads, § 44* — -when contributory negligence of person injured by defect in street which railroad company obligated to keep in repair not shown. The fact that a defect in a portion of a public street occupied by a street car company, and which it was obligated by the terms of the ordinance under which it was occupying the street to keep in repair, was open "and obvious, does not necessarily show that a person injured by reason of such defect was not in the exercise of ordinary care at the time he was injured, as what is notice to a street car company whose employees are constantly passing and repassing a given spot is not necessarily notice to the driver of a wagon, in an action to recover damages against such company by a person injured by reason of such defect.</p> <p>6. Evidence, § 476* — when finding based upon lesser number of witnesses is proper. The jury are entitled to find in favor of a party even if his case is supported by the lesser number of witnesses.</p> <p>7. Street railroads, § 44* — when contributory negligence of person driving wagon down grade on street not shoion. The fact that the driver of a wagon was, at the time of an accident resulting in his death, sitting upon a narrow, elevated seat, without a foot rest, while driving down grade, held not to indicate anything so inherently dangerous as to show that the jury’s conclusion that he was in the exercise of ordinary care was contrary to the manifest weight of the evidence, in an action to recover for his death, due to a wheel striking a hole in the portion of the highway which defendant street railroad was obligated to repair.</p> <p>8. Street railroads, § 44* — when arrangement of seat on wagon may be considered on question of exercise of ordinary care by driver. In an action to recover damages for the death of a driver of a lumber wagon, having a narrow, elevated seat, while driving down grade, due to a wheel striking a hole in the portion of the street which defendant railroad company was obligated to repair, held that the question whether the seat was arranged in the usual and customary way arranged by haulers of lumber was proper for the jury to consider, in determining whether he was in the exercise of ordinary care for his own safety.</p> <p>9. Appeal and error, § 450* — when objection as to immateriality of evidence comes too late. Where a question and answer were objected to as immaterial, but no objection was made at the trial that it was prejudicial and no exception was taken to it on that ground, held that such objection came too late on appeal.</p> <p>10. Trial, § 54* — when erroneous question answered affirmatively is not ground for withdrawal of juror. A question whether the minor sister of a decedent, in an action to recover damages for his death, living with the witness, her mother, was a widow, answered affirmatively and withdrawn on objection to its form, held. if erroneous, not to warrant withdrawal of a juror at the close of a long drawn-out trial.</p> <p>11. Street railroads, § 44* — what is effect of ordinance requiring repair of portion of street occupied by company on right of action by third persons for injuries. A requirement in an ordinance permitting a street railway company to occupy, a street of the city with its car tracks that the company shall keep such portion of the street in repair is one enacted for the benefit of the public, and an injury or death caused by the company’s failure to keep such portion of the street in repair gives rise to a cause of action against the company. , . : : .</p> <p>12. Instructions, $ 81* — when instruction singling out facts is properly refused. Refusal of an instruction, in an action to recover damages for death of the driver of a wagon due to a wheel of his lumber wagon running into a hole into that portion of the street which a street railroad was obligated to repair, while he was driving down hill, which singled out the fact he was riding on a board or plank extending out in front of the principal part of the lumber and that on the basis of that fact the jury could find he was guilty of negligence, field proper.</p>

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

<p>1. Municipal corporations, § 936* — when exclusion from park may he enjoined. The right to the use and enjoyment of a park is a valuable right and any one who is wrongfully deprived of its use may maintain a bill to restrain his exclusion therefrom.</p> <p>2. Parks and boulevards, § 12*- — what is nature of title of commissioners of Irving Park District. The Irving Park District, organized and established under the provisions of the Act in force July 1, 1895,.Rev. St. ch. 105, If 162 et seq: (J. & A. If 8172 et seq.), is an agency of the State and the title to the park located in the district is held by the commissioners in trust for the people of the State at large.</p> <p>3. Municipal corporations, § 936* — when ordinance of park commissioners limiting use of facilities in park is void. Under the Act in force July 1, 1895, Rev. St. ch. 105, <|f. 162 et seq. (J. & A. If 8172 et seq.), organizing and establishing the Irving Park District, an ordinance adopted by the commissioners of said district limiting the use of a swimming pool and gymnasium constructed by them in a park which they established in said district to residents of the district, held null and void.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 690* — when evidence shows that ma-~ chinery is known to he dangerous hy officers of corporation. Evidence held to show that machinery, consisting of a crane operated on an overhead track by electrical power to carry a block for lifting heavy material, was dangerous and so known to the elective officers of defendant corporation, in an-action under the Health and Safety Act, sec. 1 (J. & A. jf 5386), to recover damages for personal injuries sustained by defendant’s employee.</p> <p>2. Workmen’s Compensation Act, § 6* — what constitutes intentional failure to safeguard machinery giving right of action at law to employee. Evidence held sufficient to warrant the finding that defendant’s failure to safeguard its machinery was intentional, within the meaning of section 3 of the Workmen’s Compensation Act of 1911 (J. & A. jf 5451), providing that, when an injury is caused by the intentional failure to comply with statutory safety regulations an employee under the act may maintain an action at law, where a violation of section 1 of the Health and Safety Act (J. & A. If 5386) was established and the president of defendant, the immediate superior of the master mechanic,' was in the shop where the machinery was located and near it every day arid sometimes three or four times a day, and one of defendant’s directors was there every day.</p> <p>3. Master and servant, § 158* — what constitutes violation of statute relative to safeguarding machinery. Failure to employ upon dangerous machinery a well-known, simple, practical device which could he readily installed, thereby obviating the danger, constitutes a violation of section 1 of the Health and Safety Act (J. & A. 1i 5386).</p> <p>4. Appeal and error, § 1088* — what points may not be urged in argument. Points not made in the brief on appeal cannot be urged in argument.</p> <p>5. Appeal and error, § 1088* — necessity of specifically pointing out error in brief. Any error complained of on appeal must be: specifically pointed out in the brief.</p>

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

<p>Abstract of the Decision.</p> <p>1. Carriers, § 366* — when no duty exists upon part of motorman of car rounding curve to protect prospective passenger standing near outer rail. Where plaintiff was struck by defendant’s street car while he was standing on a street corner at the south end of a curve waiting to take the car going north which did not stop until after rounding the curve, whereby the rear end of the car extended over the rail of the track so as to strike plaintiff when it turned, held, in the absence of proof that the motorman knew or could have known that plaintiff was in danger of being struck if the car was operated around the curve, there was no duty on the part of the motorman to protect plaintiff from being struck.</p> <p>2. Carriers, § 480* — when question for jury whether motorman had notice that prospective passengers expect car to be stopped before rounding curve. The fact that about forty people were standing on the side of a street just south of a curve of street car tracks and as a car approached they stepped into the roadway near the tracks, held sufficient notice to the motorman of the car that he was expected to stop the car at that point, to require submission of the case to the jury, in an action to recover damages for injuries sustained by reason of the car not stopping until after rounding the curve going north.</p> <p>3. Carriers, § 486*- — when instruction that overhang of car striking prospective passenger need not be considered is properly refused. An instruction, in an action to recover damages for injuries sustained by plaintiff being struck by defendant's street car while he was standing near a curve in the track, as the car rounded the curve, due to the qyerhang of the car, that the jury were not concerned with the type, width, length, or overhang of the car, held misleading and properly refused, as the overhang of the car in iounding the curve was a vital element to be considered by the jury in determining whether the motorman exercised due care under all the circumstances.</p> <p>4. Appeal and error, § 1540* — when instruction referring to declaration is not reversibly erroneous. Giving an instruction, in an action to recover damages for personal injuries that plaintiff would be entitled to recover if he proved his case as charged in the declaration, provided he was in the exercise of due care for his own safety, held not reversible error, although actionable negligence was not charged in each and every count.</p>

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

<p>1. Equity, § 453* — u>hat is effect of consent decree. A consent decree has the same force and effect as a decree, in invitum.</p> <p>2. Judgment, § 502* — when decree in favor of wife in separate maintenance suit is res judicata as to all defenses available to husband. Where defendant, in husband’s suit for divorce for drunkenness, was awarded in a prior suit by her in another State for separate maintenance a decree based upon a stipulation signed by him that she was living apart from him for a cause legally justifying her in so doing, held that such decree was res judicata as to all defenses which he might have made, whether they were made or not. "</p> <p>3. Judgment, § 579* — what effect given judgment of foreign court having jurisdiction. The judgment entered by the court of one State, if it had jurisdiction, has the same effect in another State as in the State where it was rendered, and is conclusive on the merits of the controversy, even if fraud had intervened.</p> <p>4. Judgment, § 579* — when decree for separate maintenance is bar to suit for divorce. A decree for separate maintenance obtained by a wife against her husband in one State is a bar to a suit by him in another State for divorce based upon the same facts.</p> <p>5. Divorce, § 16* — what constitutes condonation of offense of wife. Where defendant in a suit for divorce for - drunkenness had left complainant under an agreement in writing that should she refrain for three months from using intoxicating liquors she was to return to and live with him, and she did so refrain for the agreed time and then returned to him, but he refused again to live with her, held that her offense was condoned.</p> <p>6. Divorce — when shown that wife’s intemperate habits were induced by husband. Evidence in a suit by a husband for divorce, held sufficient to sustain a finding that complainant’s intemperate habits induced defendant’s like habits, by example and invitation.</p>

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

<p>Abstract of the Decision.</p> <p>1. Municiral corporations^ § 983* — what is duty of city as to maintenance of electric light poles on street in safe condition. A city is under obligation to sed that a public street, on which an electric light pole owned by it is located, is not rendered unsafe, owing to an uninsulated chain on such pole five and a half feet from the ground becoming heavily charged with electricity.</p> <p>2. Municipal corporations, § 98Z* — when negligence of city in maintenance of electric light pole in dangerous condition is shown. In an action by a city for the death of a sixteen-year-old hoy, due to an electric shock from a charged, uninsulated hoisting chain on one of the defendant’s light poles, where it appeared that one of the drop wires was in contact with one of the steps of the pole, that the chain was in contact with the step or post, that the covering on the drop wire was ragged for some distance, and that no insulator balls, or similar apparatus, were used to prevent the charging of the chain, evidence held sufficient to sustain a finding that defendant was guilty of negligence.</p> <p>3. Death, § 21* — when evidence shows that electric shock from city light pole was proximate cause of death. In an action against a city for the death of a sixteen-year-old boy, due to an electric shock from a charged, uninsulated hoisting chain on one of defendant’s light poles, where there was evidence that deceased had been ill and had suffered from various diseases, and two physicians testified that the cause of death was heart disease, and it further appeared that he touched- the chain, could not release himself, cried out, was disconnected by force, and immediately died, evidence held sufficient to sustain a finding that the electric shock was the proximate cause of his death.</p> <p>4. Death, § 67* — when verdict not excessive. A verdict for $4,250 for the death of a sixteen-year-old boy as the result of a charge of electricity from a city light pole, held not excessive.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Doweb, § 172* — what evidence sufficient to show demand for assignment of and refusal to make. The testimony of a widow that she demanded of her husband’s son a third of the property of the deceased husband and his reply that she would have to wait, held to be sufficient evidence, although denied by such son, of a demand for an assignment of dower and a refusal of same.</p> <p>2. Dower, § 125* — when demand for assignment of is sufficient. A demand for an assignment of dower made within thirty days after the husband’s death is sufficient and relates back to the time of death.</p> <p>3. Doweb, § 176* — when claim that widow waived any claim for damages for failure to set over dower is unavailable on appeal. .The claim that a widow, by electing to take an annual value in lieu of dower and agreeing with the heirs as to the amount of the yearly value, waived and released any claim for damages for failure to set over dower she may have had, is not maintainable where the appeal is based upon the claim that the chancellor erred in determining that the evidence sufficiently proved a demand which was such that it entitled the widow to damages from the time of the death of her husband.</p>

<p>Abstract of the Decision.</p> <p>Appeal and ekbob, § 1395* — when finding is against weight of evidence. A finding of a chancellor is against the manifest weight of the evidence where it is based upon the testimony of one party alone, which is unreasonable in itself, and is contrary to that of the other party, which is corroborated by at least two witnesses.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 166* — when duty of courts to enforce as made. It is not within the province of a court to make contracts, but it is the duty of the court to enforce contracts as made, unless public policy would prevent such enforcement.</p> <p>2. Insurance, § 86* — what is nature of life insurance policy. A life insurance policy payable to a beneficiary named therein is a species of property; it is in the nature of a chose in action which, subject to certain conditions, varying according to the terms of a contract, is payable upon the contingency of death or at a stated time.</p> <p>3. Courts, § 150* — when decisions of Supreme Court are controlling. Where there is a conflict in the decisions of the federal courts or any other courts with the decisions of the higher courts of the State, it is the duty of all State courts to follow the decisions of the Supreme Court of the State.</p> <p>4. Insurance, § 407* — what is effect of legal execution of insured on rights of heneftciary. The legal execution of an insured does not, on grounds of public policy, forfeit the rights of the beneficiary of an insurance policy issued upon the life of such person, where there is no limitation as to the manner of death in such policy.</p>

<p>1. Master and servant, § 537* — when action by servant for personal injuries is under Federal Employers’ Liability Act. An action to recover damages for personal injuries brought by an employee against his employer, wherein the declaration alleges that the defendant was engaged in interstate commerce and was using its railroad track in such commerce at the time of the injury complained of, is one under the Federal Employers’ Liability Act and not one under the common-law or the State statute.</p> <p>2. Workmen’s Compensation Act, § 12* — necessity of averring in action at common law or under statute that defendant has not elected to come under. Without an averment in a declaration, filed by an employee against his employer to recover damages for personal injuries, that the defendant had not elected to operate under the Compensation Act of Illinois, no right of action at common law or under the statute of the State would exist.</p> <p>3. Master and servant, § 302a* — when employee assumes risk of employment under Federal Employers’ Liability Act. Under the acts of Congress and decisions of the federal courts, the doctrine of assumption of risk by an employee applies and prevails as at common law under the Federal Employers’ Liability Act, and an employee assumes under that act the risk of his employment except where the violation by the employer of a federal statute contributed to the injury.</p> <p>4. Master and servant, § 545* — what allegation with reference to assumption of risk declaration in action under federal aet must contain. Under the Federal Employers’ Liability Act, the declaration in an action to recover damages must contain such allegations as show the plaintiff did not assume the risk of the actual negligence complained of.</p> <p>5. Master and servant, § 326*- — when employee assumes risk of danger of overlifting. Where a declaration under the Federal Employers’ Liability Act alleged that the plaintiff was injured while engaged in work with a number of men lifting certain heavy railroad tracks, held that the danger of overlifting was apparent to a reasonable man, and so plain and apparent that plaintiff must be presumed to have known of it and to have assumed the risk.</p> <p>6. Master and servant, § 347* — when furnishing insufficient number of men for heavy work not negligence. The mere furnishing of an insufficient number of men to perform certain heavy work upon which an employee was engaged with others is not actionable negligence.</p> <p>7. Master and servant, § 363* — what is patent defect employee is bound to see. The employment of an insufficient number of men to perform certain heavy work in lifting railroad tracks, upon which an- employee was engaged with others, is a patent defect which he was bound to see, under the Federal Employers’ Liability Act.</p> <p>8. Master and servant, § 418* — when employee obeying order of foreman is not exempted from Assumption of rislc. Where a declaration under the Federal Employers’ Liability Act alleged that the plaintiff who was a member of a large crew of men engaged in lifting heavy railroad tracks, at the express direction and command of the foreman, put forth and expended his entire strength in lifting said tracks, whereby he was injured, held that all such order amounted to under the allegation was a direction to plaintiff to perform the work which was being carried on in the usual manner, and that same did not exempt him from assumption of the risk, he not being misled by such order.</p> <p>9. Master and servant, § 339a* — what is simple tool not exempting employee from assumption of rislc. A pry bar or lifting rod used by an employee in lifting heavy railroad tracks is a simple instrument or tool and not such as to exempt him from assumption of risk.</p> <p>10. Appeal and error, § 1306* — when presumed that omission of allegations relieving plaintiff from assumption of rislc in amended declaration was intentional. Where, after demurrer to an original count under the Federal Employers’ Liability Act was sustained for plaintiff’s failure in the count to relieve himself of the question of assumed risk, he filed an amended count also failing to allege his want of knowledge, or such facts as would relieve him from such assumption of risk, held that it must he presumed that such omission in the amended count of these elements was intentional and that he relied upon his right to recover, notwithstanding he may-have known of existing defects and assumed the risk of working thereunder.</p>

<p>1. Judgment, § 443* — when in prior case is not former adjudica^ tion. A judgment in a prior case is not a former adjudication where the matters in the former case are different from those in the later one and the parties are different.</p> <p>2. Payment — when instructions in action to recover money overpaid hy mistake improperly refused. In an action of assumpsit by the directors of a new national bank against partners of a private bank to recover an amount alleged to have been overpaid by mistake to defendants on the purchase of the assets of the latters’ bank, instructions that by the terms of the contract defendants represented that their bank had an actual capital and surplus invested, of a certain sum, and agreed to deliver that amount of capital and surplus invested in cash or good negotiable paper, and that if the capital and surplus so invested did not amount to such sum and that by reason of the representations of defendants, plaintiffs paid a certain sum more than the amount so invested then plaintiffs could recover, held improperly refused, as they properly construed the contract.</p> <p>3. Instructions, § 114* — when misleading because inapplicable to issues. In an action by the directors of a national bank against a private banking partnership to recover an alleged overpayment on the sale of defendants’ business, an instruction that courts of law cannot reform or change a contract and that such change or reformation can only be effected in equity, held misleading where no attempt was made to have the contract changed or reformed.</p> <p>4. Payment — when instruction on right of recovery of money paid under mistake is misleading. In an action by the directors of a national bank against a private banking partnership to recover an alleged overpayment on the sale of defendants’ business, an instruction that plaintiffs had been mistaken as to the legal meaning of the contract of sale involved and that money paid under an alleged mistake as to the legal effect of a contract cannot be recovered back, held to be misleading.</p> <p>5. Sales, § 357* — when instruction on right of sellers of business to express value in contract is misleading. In an action by the directors of a national bank against a private banking firm to recover an alleged overpayment by mistake on the sale of defendants’ business, an instruction that defendants had the right to place such value on the capital invested and business of their bank as they pleased and to have such value expressed in the written contract, whether such value was the actual value or not, held to be misleading.</p> <p>6. Contracts, § 205* — when instruction leaving to jury interpretation of is erroneous. An instruction which leaves to the jury the interpretation of a contract is erroneous.</p> <p>7. Assumpsit, Action oe, § 41* — when lies. Where an error is made in arriving at the amount due from the buyers of a banking business to the sellers at the time the assets of the bank are checked up and by reason thereof more is paid than should have been paid under the contract, an action of assumpsit lies to recover the amount overpaid.</p> <p>8. Judgment, § 693* — when instruction on binding effect of former adjudication misleading. In an action of assumpsit by the directors of a national bank against a private banking partnership to recover an alleged overpayment made on the purchase of defendants’ banking business, an instruction that it is the policy of the law to end litigation and that if a judgment in trover in favor of one of the defendants against plaintiffs for costs was rendered, then, if the promissory notes involved in that case were the same notes which were sued on in the present case the judgment in the former case was conclusive on the right to recover on such notes or their, value, held to be misleading, since action was not brought in the second case to recover the value of any notes.</p> <p>9. Judgment, § 693* — when instruction that jury may determine whether same matters are involved in successive actions is erroneous. An instruction authorizing the jury to determine whether ■the same matters are involved in two successive actions, the former of which is claimed to be conclusive as a former adjudication, is erroneous.</p> <p>10. Evidence, § 403* — when terms in contract may he explained hy experts. Any terms in a contract that have a technical meaning can be explained by experts having knowledge of that meaning; but it is not for experts to construe contracts, this being a matter for the courts.</p> <p>11. Contracts, § 205* — construction as matter for court. The construction of contracts is a matter for the court.</p> <p>12. Contracts, § 191* — when final contract and proposal may he construed together. A final contract for the purchase of a banking business and a proposal may be construed together where they refer to and supplement each other, and especially where the adverse parties admit that the contract substantially conforms to the proposal.</p>

<p>Abstract of the Decision.</p> <p>1. Executors and administrators, § 529*- — when executrix should be charged with money advanced to protect interests of devisees. Where the sole devisees of a testator’s personal property, for the purpose of protecting their interests therein and retaining such property, voluntarily paid to the executrix of the estate, who was one of such devisees, a certain amount of their own money to be used in payment of the debts of the estate, held that the executrix was properly charged by the trial court in her report with such amount.</p> <p>2. Executors and administrators, § 529* — when executrix may not complain of being charged with increased value of personalty. Where the executrix of an estate fails to properly administer the estate and appraise and sell the personal property as provided by statute, she is in no position to complain of being charged with the increased value of the property when actually sold.</p> <p>3. Executors and administrators — when inclusion of claim in finding in decree is error. The inclusion in a finding in a decree, sustaining objections to the report of an executrix of a claim, of which the record contains no evidence, is erroneous.</p> <p>4. Executors and administrators, § 330* — when devisees of personalty may not complain of application of sums advanced to executrix for payment of debts. Where the devisees of the personal estate of a testator voluntarily advanced certain of their own money to the executrix to pay the testator’s debts in order to protect their own interests in the property, held that they were not in a position to raise the question that proceeds from the sale of the testator’s real estate, descended and sold as intestate property, should first be applied to his indebtedness before such advanced moneys were applied thereto.</p> <p>5. Executors and administrators — when devisees of personalty should be reimbursed for money advanced to pay debts of testator. Where the devisees of the personal estate of a testator voluntarily advanced money to pay the testator’s debts, held that whatever funds should remain in the hands of the executrix, if any, after paying the indebtedness of the estate, should be returned to such devisees and not to the estate, as such remainder would be a balance remaining out of the funds so advanced by the devisees to pay the indebtedness and would belong to them and not to the estate.</p> <p>6. Executors and administrators, § 560* — when executrix properly-denied commissions. Where a testator’s estate was irregularly and improperly administered by the executrix, held that there was no error in the court not allowing her commissions.</p>

<p>1. Partnership, § 107* — right to sue member on contract. As a general rule a copartnership cannot sue a copartner upon a note or contract: made between the partnership and such copartner.</p> <p>2. Partnership — when receiver may not sue member of on note. The assignee or receiver of a copartnership cannot sue one of its members upon a note, as an assignee or a receiver takes no greater interest in the assets of a copartnership than the copartnership had itself, and a suit instituted by a receiver or assignee is a suit based on the right to sue that was originally in the copartnership.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding. Heard in this court at the March-term, 1917.</p>

<p>1. Appeal and ebbor, § 812* — what must appear in MIX of exceptions. Litigants cannot by ex parte affidavits incorporate into the record matters transpiring in the presence of the court during the trial of a cause, but such matters can only be shown hy bill of exceptions signed by the trial judge.</p> <p>2. Trial, § 31* — when advancement of trial of case out of order set for hearing is no excuse for failure to he ready for trial. Where cases are allotted for trial on a certain day, it is the duty of the parties to be ready for trial on that date, and the mere fact that the case preceding theirs may, for reasons appearing sufficient to the trial court, be allotted for a subsequent day, whereby their case comes on for hearing earlier than expected, but not earlier than its allotment, is not sufficient upon which to base error.</p> <p>3. Dismissal, nonsuit and discontinuance, § 38* — when dismissal of case for want of prosecution is proper. The dismissal of a case for want of prosecution, on motion of the defendant, when regularly called for trial with the plaintiff in court, either in person or by counsel, and the defendant ready for trial, is not error when plaintiff fails to proceed with the trial.</p>

<p>Appeal from the Circuit Court of Hamilton county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>1. Commerce, § 4* — when engagement in interstate by railroads is question of fact. Where railroad companies do both an interstate and an intrastate business, it is a question of fact as to whether at a particular time said railroad companies are engaged in interstate or intrastate commerce.</p> <p>2. Master and servant, § 98* — when Federal Employers’ Liability Act applies. The Federal Liability Act only applies as between employer and employee.</p> <p>3. Workmen’s Compensation Act, § 2* — when carrier by land not required to file notice of election to be governed by act. A carrier by land is not required to affirmatively file a notice of election to be governed by the provisions of the Workmen’s Compensation Act and to pay compensation thereunder in order to be entitled to be subrogated under the provisions of section 29 of that Act [Callaghan’s 1916 St. Supp. If 5475(29)], as such carriers are conclusively presumed to have so elected under the provisions of section 2 of that Act, Laws of 1913 [Callaghan’s 1916 St. Supp. if 5475(2)], providing that such shall "be so presumed unless notice of election to the contrary is filed with the Industrial Board and given the employee.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. .Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1917.</p>

<p>Error to the Circuit Court of Moultrie county; the Hon. George E. Sentee, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Error to the County Court of Morgan county; the Hon. William E. Thomson, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>1. Bills and notes; § 50* — when note is without consideration. A promissory note intended as a gift, or made in pursuance of a void unenforceable contract, is without consideration.</p> <p>2. Bills and notes, § 50* — when note from father to daughter is without consideration. A note given- by a father to his daughter in lieu of real estate he had failed to give her according to his promise is not based upon a consideration.</p>

<p>1. Criminal law, § 88* — when complaint charging disorderly conduct is insufficient. A complaint, on which a warrant was issued by a justice of the peace, which fails to either set forth the facts constituting the offense within Rev. St. 1915, ch. 38, sec. 55 (J. & A. j[ 3589), relating to lewdness, disorderly conduct, etc., tending, to debauch the public morals or that the acts with which defendant was charged tended to debauch the public morals, is subject to quashal upon motion.</p> <p>2. Criminal law, § 88* — when complaint may he amended. Amendments may be allowed to complaints upon which criminal prosecution begun before a justice of the peace are based.</p>

<p>Appeal from the Circuit Court of Clark county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Appeal from the Circuit Court of Clark county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the April term, 1917.</p>

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

<p>1. Municipal corporations — how acts of can be proved. The acts of municipal corporations can only be shown by their records.</p> <p>2. Municipal corporations, § 1118* — when city not liable for injuries to property caused by discharge of sewage. A municipality cannot be held liable in an action for injuries to property alleged to have been caused by the discharge of sewage into a water course where there is no competent proof that any drain or sewer discharging into the water course was either built by the municipality or authorized by it.</p> <p>3. Municipal corporations, § 938*- — when city not liable for damages resulting from acts of others. A city cannot be held liable for damages resulting from acts done by persons or corporations which it did not authorize.</p> <p>4. Municipal corporations, § 938* — when city not liable for injuries resulting from nuisance created by others. Mere failure on the part of a city to prévent the creation of a nuisance by others does not render it liable for injuries resulting therefrom.</p> <p>5. Municipal corporations, § 938* — when city is not liable for injuries caused by nuisance. A city is not liable for injuries caused by a nuisance created by private persons or corporations on private property.</p> <p>6. Municipal corporations, § 938* — when not liable for failure to abate nuisance. A city is not liable for failure to abate a nuisance created by private persons or corporations on private property.</p> <p>7. Municipal corporations, § 1112* — when not liable for injuries due to failure to construct sewers and drains. A city is not liable for injuries arising through its failure to exercise its charter powers in regard to constructing and maintaining sewers and drains.</p>

<p>Abstract of the Decision.</p> <p>1. Jury, § 9* — when trial by is not matter of right. A jury trial in a separate maintenance suit is not a matter of right.</p> <p>2. Equity, § 379* — when findings of jury are advisory only. Where issues are submitted to a jury in a suit for separate maintenance, their verdict is advisory only, and it is still within the court’s discretion either to follow the jury’s findings or to make independent findings.</p> <p>3. Appeal and error, § 1395* — when findings of chancellor not set aside. On appeal, the findings of a chancellor who has seen the witnesses and heard the testimony should he accorded the same weight as the findings of a jury and not set aside unless contrary to the manifest weight of the evidence.</p> <p>4. Husband and wife, § 217* — when wife is not without fault in causing disruption of marital relation. Where a wife's misconduct is such as to materially contribute to the disruption of the marital relation, she is not without fault within the meaning of the statute providing for separate maintenance (J, & A. f 6159).</p> <p>5. Husband and wife, § 217* — when wife is not without fault in causing separation. Where the misconduct of both parties has contributed to cause the separation, the wife is not without fault in the meaning of the separate maintenance statute (J. & A. f 6159)..</p> <p>6. Equity, § 374* — when refusal of requests to submit certain issues to jury is not error. On a bill for separate maintenance where the issues are submitted to a jury, the refusal of a request to submit certain issues is not error.</p> <p>: 7. Equity — when propriety of rulings on instructions is immaterial. On a bill for separate maintenance, where the issues are submitted to a jury, the question whether the rulings as to the giving or refusal of instructions were proper is immaterial.</p> <p>8. Appeal and error, § 1522* — when inconsistency in jury’s findings is not ground for reversal. On a bill for separate maintenance, inconsistency in the jury's findings is not ground for reversal, where the court made independent findings.</p> <p>9. Husband and wife, § 264* — when evidence supports findings in suit for separate maintenance. Evidence held sufficient to support the findings of the chancellor in a suit for separate maintenance.</p>

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

<p>1. Debt, Action of, § 7* — what is effect of plea of non est factum at common law. At common law the plea of non est factum, to a declaration in debt on a bond merely put in issue the execution of the bond.</p> <p>2. Debt, Action of, § 7* — what is effect of unverified plea of non est factum under statute. Under the Illinois statute (J. & A. If 8589), an unverified plea of non est factum to a declaration in debt on a specialty puts nothing in issue.</p> <p>3. Pleading — what is effect of notice of special matters of defense to declaration. Notices of special matters of defense to a declaration in debt on a bond cannot be demurred to, admitted or denied, and do not raise issues of law or fact, but merely admit the introduction of proof, if material, of special defenses without pleading them.</p> <p>4. Bonds, § 37*- — when judgment may be had by introduction of bond alone as evidence. On a declaration of debt on a bond to which an unverified plea of non est factum and notices of special matters of defense are filed, plaintiff may have judgment without the introduction of other proof than the bond sued on, unless other proof is made necessary by the introduction of proof by defendant under the notices of special matters of defense.</p> <p>5. Executobs and administbatobs — what unnecessary to recovery on bond of distributee by person supposed to have been dead. To entitle one whose estate has been distributed on the presumption of his death and intestacy to recover of a surety on the bond given by a distributee pursuant to section 78 of the Administration Act (J. & A. If 127), it is not necessary that the order directing the distribution of the estate be first set aside and vacated.</p> <p>6. Executobs and administbatobs- — what is not prerequisite to suit by person supposed to be dead upon bond of distributee of estate for refund of share. To entitle one whose estate has been distributed under a presumption of death and intestacy to recover of the surety on the bond given by a distributee pursuant to section 78 of the Administration Act (J. & A. If 127), it is not necessary that he first proceed against the administrator by demand or suit before calling on the distributee for the amount he had received.</p> <p>7. Tbial — when profert of party is unnecessary. Profert of a party is not required to establish his existence and identity.</p> <p>8. Executobs and administbatobs — when proof of existence and identity of party whose estate has been distributed is sufficient. In an action by one whose estate had been distributed on a presumption of his death and intestacy to recover of the surety on the bond given by a distributee, proof of the existence and identity of the plaintiff held sufficient.</p> <p>9. Bonds, § 37* — what is sufficient proof of failure to pay debt. Where the declaration in debt on a bond alleges and the pleadings admit a failure to pay, plaintiff is not put to further proof thereof.</p> <p>10. Payment, § 24* — as an affirmative defense. Payment is an affirmative defense.</p> <p>11. Appeal and error, § 1488* — when admission of improper evidence is harmless error. The admission of improper evidence in a case tried by the court without a jury is harmless error.</p>