Volume 208 — Illinois Appellate Court Reports

<p>1. "WIlls—how will draum by layman construed. In construing a will drawn by a layman, the courts are not so strongly bound by the technical meaning of legal terms employed therein as they, are in the case of a will drawn by one familiar with such terms and will enlarge, restrict or ignore the technical meaning when by so doing the manifest intent of the testator can be given effect.</p> <p>2. Wills, § 266*—when word “heirs” construed as meaning “children.” In construing a will drawn by a layman, where the word “heirs” has been used interchangeably with “children” or in such connection as to make it apparent that “children” was intended, it will be so construed.</p> <p>3. Wills, § 266*—when word “heirs” construed as meaning “children.” Where, in a will drawn by a layman, it is provided that the estate “shall be divided into five equal shares, each of my before enumerated children to receive one share and the heirs of my children now deceased shall receive collectively the share their deceased parents would have received,” the word “heirs” will be construed as meaning “children.”</p> <p>4. Wills, § 272*—what constitutes a gift to a class. Where a will directs that the estate be divided share and share alike between “my children as follows: Joseph P. Baker, Christie Ann Critchfield, Leatha Scott, the heirs of Almira Dunbar” and the heirs of another child, the gift to such “heirs” is a gift to a class.</p> <p>5. Wills, § Hi*—what is general rule as to vesting of bequests made to a class. It is the general rule that, unless a different intention is manifested, where a bequest is to a class, all the members of that class who are alive when the testator dies are included and the bequest then vests in them, the enjoyment only being postponed.</p> <p>6. Wills, § 391*—when will construed as postponing vesting of bequests until after death of xoidow. Where a will, after first directing that the real estate be sold and the proceeds divided, later provides that it shall not be sold until after the death of his wife and also that if any of his living children shall die' “before the time of settlement” of the estate, which it elsewhere provides shall not be until after the death of the wife, the children of such deceased parent shall take collectively the share the deceased child would have taken if living, it is to be construed as postponing the vesting of all the bequests until after the death of the testator’s widow.</p> <p>7. Wills, § 384*—when devisees of remainder have vested interest after death of toidow. The devisees of the remainder after the death of the testator’s widow are not to be construed as having a vested interest until after her death, where there are no express words giving or devising anything to any one in that clause of the will, but the disposition of the property there made is by way of direction to the executor as to disposing' of the proceeds of the sale of realty to be made after the widow’s death.</p> <p>8. Wills, § 262*—when presumed that widow takes as heir under statute and not under xoill. Where a will, after providing for certain bequests to the testator’s wife, provides that "in addition I bequeath to her, full statutory dower in all my property,” the widow is presumed to take as heir under the statute and not under the will.</p> <p>9. Wills, § 273*—when xoill construed as'allowing only heirs alive- at time of distribution to take shares of estate. Where a testator provides that after the death of his wife his property is to be divided share and share alike between his children “as follows: Joseph P. Baker, Christie Ann Critchfield, Leatha Scott, the heirs of Almira Dunbar and the heirs of Kittle Samuels,” the “heirs” of such children who are entitled to take are those who are alive at the time of the death of the testator’s widow when the estate is first ripe for distribution.</p>

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

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

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

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

<p>1. Fraudulent conveyances, § 80*—when gift of mercantile business by father to son deemed fraudulent. The facts that a father is largely indebted when he makes a voluntary gift of his mercantile business to his son and that he shortly thereafter becomes insolvent render the transaction fraudulent as to creditors.</p> <p>2. Fraudulent conveyances, § 271*—when evidence shows transfer of property by father to son to be fraudulent. Evidence examined and held to show that the transfer of property by a father to his son was fraudulent as to the former’s creditors.</p> <p>3. Appeal and error, § 112*—when error of trial court in passing upon propositions of law and fact not reviewed. On appeal in a replevin proceeding by judgment creditors to recover property claimed by defendant under a transfer by the judgment debtor, where the court finds that the transfer was fraudulent as to creditors, it will not determine whether or not the trial court may have erred in passing upon the propositions of law and fact submitted.</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>Error to the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Creditors’ suit, § 24*—what judgment is' sufficient to sustain a creditor’s hill. A judgment secured before a justice of the peace is sufficient to sustain a creditor’s bill.</p> <p>2. Husband and wipe, § 147*—when earnings of wife are not subject to claims of creditors of husband. Since the Act of 1869 the earnings of a wife realized from keeping boarders with the consent of her husband will be considered her own personal property and, as a general rule, protected from subsequent creditors of her husband.</p> <p>3. Husband and wipe, § 151*—when property of wife may not be claimed by her as against husband’s creditors. Where a wife permits her husband to use her property as his own in his business she cannot interpose her claim thereto as against his creditors.</p> <p>4. Husband and wipe, § 151*—when purchase by wife of property from own funds is fraudulent as to all of husband’s creditors. Where a debtor secured credit from certain creditors in the purchase of a stock of goods in his mercantile business upon their faith in his claimed ownership of a certain certificate of deposit in a bank, which was in fact owned by his wife and was later used in the purchase of certain real estate in her name, held that if the purchase of such real estate was a fraud as to one creditor giving credit upon the faith of the debtor’s apparent ownership of the certificate it was a fraud as to one not knowing of the certificate but giving faith to his apparent ownership of the purchased stock of goods.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. Fbankhn H. Boggs, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>1. Municipal cobpoeations, § 1107*—when question of fact whether walk remained in dangerous condition sufficient length of time to charge city with notice. In an action to recover damages for personal injuries sustained by a fall on a city sidewalk, alleged to have become so old and worn that it was so smooth, slick and slippery from age, wear and. usage that pedestrians could not secure a safe foothold thereon and was dangerous to persons walking thereon, held that the question whether the walk had remained in such condition for such length of time as to charge the city with notice was one of fact.</p> <p>2. Municipal cobpoeations, § 1107*—when question for jury whether sidewalk is dangerously defective. Whether a particular stone flagging sidewalk, slippery with age and usage, was dangerously defective, held to be a question of fact for the jury, in an action against a city to recover damages for injuries due thereto.</p> <p>3. Municipal cobpoeations, § 1107*—when contributory negligence of pedestrian slipping on walk is question for jury. Whether plaintiff, in an action against a city, to recover damages for injuries due to a slippery sidewalk, was contributorily negligent in wearing shoes the heels of which were more or less worn, making her more liable to slip, and whether such fact contributed to the injury, held to be questions of fact for the jury.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>Appeal and error, § 1751*—when judgment affirmed for insufficiency of record. "Where on objection to the final report of an administrator with the will annexed that he had not charged himself in the report with the amount of a note on which he was principal and the deceased was surety, and which the executrix of the will of the deceased had paid, the record contained no evidence of the will or its contents and did not purport to contain all the evidence, held that the judgment sustaining the objection should be affirmed.</p>

<p>1. Evidence, § 399*—when medical testimony does not invade province of jury. In an action to recover damages for personal injuries, where there was no conflict in the evidence and no contention made but that plaintiff’s injury was incurred at the time and in the manner alleged, and the only question was as to the relation between the injury and the subsequent condition of the injured member, answers to questions asked of medical witnesses as to the cause of such condition held proper, and not an invasion of the province of the jury.</p> <p>2. Evidence, § 444*—when medical testimony as to subjective symptoms is incompetent. Evidence of subjective symptoms given by a physician who has not treated the injured person, but has made an examination to enable him to testify on a trial as to his condition, is incompetent.</p> <p>3. Appeal and error, § 1489*—when admission of incompetent evidence is harmless error. Where a physician was allowed, over objection, to testify to subjective symptoms from an examination by him of an injured person whom he had not treated for the purpose of testifying on a trial, and there was no contention or proof to the contrary of such testimony, held that the evidence, while incompetent, was but cumulative and not of sufficient importance to justify a reversal.</p> <p>4. Appeal and error, § 1709*—necessity of making reference in argument to place where errors appear. Unless reference is made in argument to the abstract or record where alleged errors appear, they will not be considered.</p> <p>5. Damages—when evidence as to possibility of cure of injury is speculative. Evidence by a physician, in response to a question what, if any, additional treatment could -be given with a view to relief and cure of an alleged injury, that amputation might or might not relieve it, field to be purely speculative and should have been stricken out on motion.</p> <p>6. Damages, § 244*—when admission of speculative testimony as to possibility of cure of injury is harmless error. The speculative testimony of a physician, as to what could relieve or cure an alleged injury, that amputation might or might not, held not prejudicial to defendant, in an action to recover damages for such injury, where another physician testified without objection, in effect, that amputation was the only relief for the injury.</p> <p>7. Damages, § 122*—when verdict for personal injuries is not excessive. Verdict for $7,500 held not excessive, where plaintiff was 27 years old, strong and healthy prior to the injury, received $2.62</p> <p>a day as wages, was in a hospital for several months on account of the injury, and as a result thereof had lost the total use of his right leg and had suffered a great deal of pain.</p> <p>8. Damages, § 244*—when failure to give proper instructions on is not reversible error. Instructions, in an action to recover damages for personal injuries, that the jury should fix the damages from all the facts and circumstances in evidence, should properly confine the facts and circumstances to the evidence in regard to the elements of damage, but failure to do so is not prejudicial where the damages awarded are not excessive.</p>

<p>1. Assignments fob benefit of cbeditobs—when creditor selling property of debtor on execution loses rights under trust deed. Where a debtor assigned his property to a trustee for the benefit of all his creditors, one of whom, prior to the assignment, instituted an attachment suit against certain of the debtor’s real estate which he prosecuted to judgment, and sale on execution issued on the judgment was had, and a deed was issued, held that the sale under the attachment not only extinguished the judgment but at the same time relinquished all rights the creditor might have had under the trust deed, as all such rights were for payment of such creditor’s debt and same no longer existed after the sale and deed in the attachment proceeding.</p> <p>2. Mobtgages—when decree for sale of interest of principal debtor before resorting to interest of sureties is proper. A decree directing the sale of the interest of the principal debtor before resorting to the interest of his sureties, held not erroneous, in a suit to foreclose a mortgage given to secure notes signed by the holder of a life estate in the mortgaged property as principal and by the owners of the fee as sureties.</p> <p>3. Execution, § 196*—what rights are acquired by judgment creditor purchasing equity of redemption. A plaintiff in execution purchasing thereunder property which is subject to a prior mortgage obtains only the title of the mortgagor and must redeem from such mortgage in order to render his equity of redemption available.</p> <p>4. Execution, § 193*—when grantee of land sold under is not entitled to rents and profits. Under Rev. St. 1916, ch. 80, par. 1, sec. 4 (J. & A. T| 7039), relating to the recovery of rent when land has been sold under a judgment, and possession is refused, after demand, until demand in writing by the grantee in a sheriff’s deed of a life estate sold on execution is made, the grantee is not entitled to receive the rents and profits arising from the estate.</p>

<p>Abstract of the Decision.</p> <p>1. Vendor and purchaser, § 39*—when vendor must point out boundaries correctly. When a vendor undertakes to point out the boundaries of 'land to a "purchaser he is obliged to point them out correctly.</p> <p>2. Vendor and purchaser, § 42*—when purchaser entitled to damages for misrepresentations by vendor. A purchaser relying upon representations of his vendor as to the boundaries of the land purchased is entitled to damages for misrepresentations by the vendor.</p> <p>3. Exchange of property, § 8*—what is measure of damages where exchanged property is not as represented. The measure of damages where there is an exchange of property and the property is not as represented and the representation was relied upon is the difference between the actual value of the land and what would have been its value if it had been as represented.</p> <p>4. Vendor and purchaser, § 127*—when purchaser may not. complain that title is not merchantable. A party who has' accepted a conveyance of land 60 years subsequently to the making of certain deeds claimed to be imperfect because not joined in by the wives of the grantors, and has taken possession of the land, may not be heard to complain that he has not a merchantable title and must rely upon the covenants of his deed.</p> <p>5. Costs, § 4*—when half of costs properly taxed against cross complainant. Where a cross complainant failed in several of his contentions on which much evidence was taken, held on decree in his favor generally, that there was no error in the court’s ruling that he should pay one-half of the costs, as, in chancery, costs are in the judicial discretion of the court.</p> <p>6. Appeal and error, § 1712*—necessity of pointing out and arguing errors. The Appellate Court should not search the record for errors not pointed out or argued by counsel.</p>

<p>Error to the Circuit Court of Jersey county; the Hon. Noeman • L. Jones, Judge, presiding. Heard in this court at the April term, 1917.</p>

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

<p>Abstract of the Decision.</p> <p>1. Negligence, § 228*—when instruction referring to the exercise of care 6y plaintiff at'the time of occurrence of injury is not erroneous. Where an instruction in a personal injury case used the language, “Whether or not the plaintiff exercised ordinary care for his own safety at the time of the occurrence of the injury complained of,” held that it was a strained construction to say that this only required due care at the instant plaintiff was struck, and that an ordinary person would understand it as covering the time and acts leading up to the injury, which were all a part of the occurrence, and that, when all the instructions were read together, the jury could not fail to understand that “at the time of the occurrence” included the acts leading up to the accident.</p> <p>2. Instructions, § 137*—when properly refused. Instructions calling attention to certain portions of the evidence and telling the jury if they believe such parts of the evidence they should find for the defendant, and undertaking to tell that the things stated were contributory negligence without regard to the other evidence in the case, held properly refused.</p> <p>3. Appeal and error, § 1506*-—-when sustaining of objection to cross-examination is not prejudicial error. A question on cross-examination of plaintiff, in an action to recover damages for personal injuries, whether he understood that it was his duty to stand in the clear when a train went by, objected to as not proper cross-examination, held to state a fact so obvious that sustaining of objection could not prejudice defendant.</p> <p>4. Appeal and erbob, § 1733*'—when holding on former appeal is controlling. Where the evidence on a pending appeal was not dif; ferent from that on a former appeal, held that the holding on the former appeal that the questions whether the injured person, in an action to recover damages for personal injuries, was in the exercise of due care and whether defendant was guilty of the negligence alleged were properly submitted to the jury and that their findings would not be interfered with where the verdict was not manifestly against the weight of the evidence, was res judicata on those questions.</p> <p>5. Trial, § 105*—when motion to strike entire answer to question is properly denied. Where an answer to a question is in part proper and in part improper as not responsive, a motion to strike the entire answer is properly denied, as the motion should be confined to the objectionable matter.</p> <p>6. Damages, § 244*—when admission of evidence is not prejudicial error. Where defendant, in an action to recover damages for personal injuries, sought to show in mitigation of damages that plaintiff lost certain time prior to the accident producing the injury, and gave as a reason that he was not feeling well, and that he was a married man with a family, held, that under such proof by defendant, it was not prejudicial error for plaintiff to show in rebuttal the real reason why he was absent from work.</p> <p>7. Appeal and error, § 1413*—when verdict is not against manifest weight of evidence. A verdict in a personal injury action for less than two prior juries rendered, held not so manifestly against the evidence that it could not be sustained.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 399*—when question does not embody facts to be . found by jury. A question asked of an expert witness that “supposing a man,” etc., describing the conditions shown by the evidence gave a history of inability to copulate, what would he say as to such inability being from the injuries found, held not objectionable as embodying the facts to be found by the jury, although suggestive and leading and objectionable on such latter ground.</p> <p>2. Appeal and error, § 1506*-—when improper answer on cross-examination is not reversible error. Where part of the answer to a question on cross-examination by defendant was uncalled for, held, on a motion by defendant’s counsel to exclude the evidence, that there was no reversible error when the uncalled for part was read in connection with the preceding evidence of the witness.</p> <p>3. Damages, § 238*—what objection cannot be first raised on appeal. An objection that certain hospital expenses, in an action to recover damages for personal injuries, were unnecessary cannot be raised for the first time on appeal.</p> <p>4. Damages, § 110*—when verdict for permanent personal injuries is not excessive. A verdict for $5,250 held not excessive, where there was no contention plaintiff was not seriously injured, that he suffered much pain, and was still more or less of a cripple, and even defendant’s experts did not testify he was not permanently injured.</p>

<p>1. Carriers, § 96*—when congestion does not excuse delay. Where a carrier receives freight for transportation, unusual press of business or congestion will not excuse delay unless the shipper was notified at the time the shipment was received of such congestion.</p> <p>2. Carriers, § 96*—when carrier liable for deterioration in grain due to delay in transit. Where defendant carrier received in the State for transportation to a foreign State certain cars of grain at a time when there was a congestion at the point of destination over the lines entering the city, preventing the prompt transit of the grain, brought about by conditions due to the European war, the demand of European nations for foodstuffs, the large crops raised and the rush of such commodities to the point of destination and the impossibility of securing ships because of such conditions, held that defendant was guilty of negligence in accepting the grain for shipment when it knew or ought to have known that it could not transport it to its destination within a reasonable time, in an action to recover damages for deterioration in the grain due to delay.</p> <p>3. Carriers, § 96*—when necessary to notify shipper of conditions hindering transportation. A showing of such unusual conditions or congestion hindering transportation as is possessed by the public generally is insufficient to relieve a carrier from liability for delay, but a shipper must be notified by the carrier.</p> <p>4. Carriers, § 107*—when evidence as to conditions hindering transportation is properly excluded in action for damages for delay. In an action by a shipper against a carrier to recover damages for deterioration in grain .caused by delay in its shipment, where the carrier failed to give notice to the shipper at the time of accepting the grain of any conditions hindering the transportation and likely to cause delay, evidence as to such conditions held properly excluded.</p> <p>•5. Carriers—when instruction that shipper having knowledge of conditions hindering transportation cannot recover for delay is properly refused. In an action by a shipper against a carrier to recover damages for deterioration in grain caused by delay in its shipment, where the carrier failed to give notice to the shipper at the time of acceptance of the grain of any conditions hindering transportation and likely to cause delay, held that an instruction, that if the jury believed that plaintiff knew of such conditions when he made the shipment he could not recover, was properly refused.</p> <p>6. Carriers, § 143*—what is measure of damages for injury to freight in transit. The rule of damages for injury to freight in transit is the difference in market value between the condition in which the same should have arrived but for the negligence of the carrier and its market value in the condition in which by reason of such negligence the same did arrive.</p> <p>7. Carriers—when instruction on measure of damages for injury to shipment due to delay in transportation is erroneous. Instruction, in an action by a shipper against a carrier to recover damages for deterioration in grain shipped caused by delay in the transportation, that the rule of damages was the difference in value between the condition in which the grain should have arrived but for defendant’s negligence and its value in the condition in which by reason of such negligence it did arrive, held erroneous because not limited to damages resulting from delay only.</p> <p>8. Appeal and error, § 1241*—when party may not obtain advantage by own error. A party offering an erroneous instruction cannot obtain advantage by his own error.</p> <p>9. Carriers, § 110*—what is effect of advance in market price on liability for injury to goods due to delay in transit. Where goods are both damaged and delayed in transit and during the delay the market price has risen so that the increased value through the rise in price is greater than the diminution through the injury, the plaintiff may recover damages resulting from the injury; the carrier cannot be exempt from the consequences of his own wrong by an advance in price.</p> <p>10. Carriers, § 143*—what is measure of damages for grain lost in transit. Value at the time of shipment of grain lost in transit, held to be the correct measure of damages, in an action to recover damages for such loss.</p> <p>11. Carriers, § 30*—when Interstate Commerce Act controls in actions against interstate carriers. Actions for loss and damage to freight in transit in interstate commerce are exclusively controlled by the Interstate Commerce Act and its amendments.</p> <p>12. Carriers, § 162*—-when notice of claim to carrier is condition precedent to recovery of damages. A provision in a shipping contract limiting the time within which a claim for damages may be made and fixing the manner and place of making it is valid, and failure to give notice of the claim is fatal, to a plaintiff’s right to recover unless it is contrary to law or unreasonable.</p> <p>13. Carriers, § 184*—when instruction on necessity of claim for damages for injury to interstate shipment due to delay in transit is properly refused. In an action by a shipper against a carrier to recover damages for injury to an interstate shipment due to delay in transit, an instruction that under the shipping contract, providing that a claim for loss, damage or delay must be made in writing at a certain place and within 4 months after delivery, or after reasonable time for delivery, and that no liability should exist unless claim was so made, the jury should find for defendant as to any claim not so made, held properly refused, as, under the Carmack Amendment to the Interstate Commerce Act and the Cummins Amendment thereto, such shipper is entitled to recover without giving any notice or filing any claim for injury due to delay in -.transportation as a condition precedent to recovery, and such provision of the contract relating to delay was void.</p> <p>14. Carriers, § 162*—when notice or claim in writing to interstate carrier is unnecessary. No notice or claim in writing need be made by a shipper to the carrier as a condition precedent to the recovery for damage due to delay in transportation of an interstate shipment, under the Cummins Amendment of 1915 to the Interstate Commerce Act.</p>

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

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

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

<p>Error to the Municipal Court of Chicago; the Hon. Harry M. Fischer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquobs, § 81*—what is not defense in prosecution of agent of distilling company for selling without license. In a prosecution for selling malt liquor in excess of one gallon without having obtained a license, in violation of section 1553 of the Municipal Code of Chicago, it is no defense that in selling the liquor the defendant was acting as agent for a distilling company, where it also had no license.</p> <p>2. Intoxicating liquobs, § 122*—when complaint in prosecution for selling without license is sufficient. In a prosecution for selling malt liquor in excess of one gallon without having obtained a license, in violation of section 1553 of the Municipal Code of Chicago, requiring that the seller shall have a license for its place of business, it'is no defense that the complaint did not charge that defendant did not have a license to sell at the place at which the sale was made, the residence of the purchaser, where the evidence shows that he had a fixed place of business and that neither he nor the company employing him there had a license.</p> <p>3. Intoxicating liquobs, § 78*—when license ordinance contemplates sales elsewhere than at fixed places of business of sellers. Section 1553 of the Municipal Code of Chicago, providing for a license for persons selling malt liquor in quantities in excess of one gallon, contemplates that such sales will be made elsewhere than at the fixed places of business of the sellers.</p> <p>4. Intoxicating liquobs, § 78*—when contention that ordinance against selling without license provides no penalty is without merit. On an appeal from a judgment in a prosecution for selling malt liquor without a license in violation of section 1553 of the Municipal Code of Chicago, there is no merit in the contention that no penalty is prescribed by that section, as the penalty is provided by section 1560.</p> <p>5. Municipal Court op Chicago, § 29*—when assumed that court found that sections 1553 and 1560 of Municipal Code of Chicago were part of same article. On an appeal from a judgment in a prosecution for selling malt liquor without a license in violation of section 1553 of the Municipal Code of Chicago, it is not ground for reversal that section 1560, under which the penalty was imposed, provides a penalty for the violation of “any of the provisions of this article,” where the statement of claim recites that the two sections constitute “an ordinance” of the City of Chicago, and it will be assumed that the Municipal Court of Chicago, in taking judicial notice of the ordinances of the City of Chicago, found that the sections were a part of the same article'.</p> <p>6. Municipal Court of Chicago, § 36*—when judicial notice tahen of city ordinances. The Municipal Court of Chicago has the right to, and does, take judicial notice of the ordinances of the City of Chicago in criminal cases.</p>

<p>1. Insurance, § 115*—when agreement construed as unconsummated and in anticipation of future application for insurance. Provisions of an insurance agreement construed as an unconsummated agreement for the payment of moneys to an insurer in anticipation of an application for insurance at some future date by which neither party is bound, but which merely sets forth the terms upon which the insurer proposes to become liable if it so elects.</p> <p>'2. Payment, § 39*—when may he recovered. One for whose use moneys are paid to an insurance company in anticipation of an application for insurance at some future time under an unconsummated agreement by which the insurer incurs no liability may, upon his election not to consummate the contract, recover from the insurer the moneys so paid it.</p>

<p>Abstract of the Decision.</p> <p>1. Equity, § 553*—when incorporation of findings of fact in decree is not ground for reversal. Where a bill and supplemental bill ask for relief and such relief is awarded by the decree, the incorporation of findings of fact in the decree is not ground for reversal.</p> <p>2. Judgment, § 606*—right to revive by scire facias. The holdings of Harts v. Lasman, ante, p. 137, as to the right to revive by scire facias the judgment involved, followed.</p> <p>3. Judgment, § 618*—when validity of in scire facias proceedings to revive may not be attacked. On a bill to enjoin the enforcement of a judgment, complainant cannot bring in question the validity of the judgment in a scire facias proceeding to revive the former judgment.</p> <p>4. Appeal and error, § 494*—when objection cannot be raised on appeal. Objection that a default was entered while defendant had pleas on file which had not been disposed of cannot be first raised on appeal.</p> <p>5. Judgment, § 360*—when error in entering by default cannot be corrected. Error in entering judgment by default while defendant still had- pleas on file which had not been disposed of cannot be corrected by a court of chancery on a proceeding to enjoin the enforcement of the judgment.</p> <p>6. Appeal and error, § 1258*—when party cannot complain of any error in decree for sale of property under judgment. Where a decree for the sale of property under a judgment does not require defendant to pay the amount of the, judgment but only the amount for which the property should be sold, he cannot complain that the decree did not allow credit for a payment made before the decree was entered, where the amount for which the property was sold was less than the amount of the judgment after deducting the credit claimed.</p>

<p>Abstract of the Decision.</p> <p>1. Venue, § 24*—when discretion in refusing to grant petition for change of not abused. Where it appears from a petition for a change of venue, which was presented to the trial judge who had entered several orders in the cause prior to the presentation of the petition, that knowledge of the alleged prejudice of the 'trial judge came to the petitioner on December 27th, the hour not being stated, and that notice was served on the opposing counsel on December 28th, at 3 o’clock p. m., the Appellate Court cannot say that there was an abuse of discretion in refusing to grant the petition for a change of venue of the action which was for hearing January 3rd.</p> <p>2. Municipal Court of Chicago, § 16*—when case properly tried by court without jury. Under section 30 of the Municipal Court Act (J. & A. 1f '3342) where one filing an intervening petition in an attachment suit to recover $6,075 on .the ground that he owns a one-half interest in the property attached makes no demand for trial by jury until the case comes on for hearing, when he tenders the statutory fee and demands a jury trial in writing, the case is properly tried by the court without a jury.</p> <p>3. Appeal and error, § 1236*—when party cannot occupy different position on appeal. An appellant cannot occupy in the court of review a different position from that which he assumed in the trial court.</p> <p>4. Attachment, § 42*-—when evidence shows indebtedness of defendant to plaintiffs and fraudulent transfer of interest in property. On a petition of interpleader in an attachment suit on the ground that the interpleader was owner of one-half interest in the property attached, evidence held to support a finding that defendant in attachment was indebted to plaintiffs and that the transfer of an interest in the property to the interpleader was fraudulent, collusive and invalid as against plaintiffs.</p> <p>5. Attachment—when defendant cannot take advantage of assignment of plaintiffs’ interest prior to trial. Defendant in attachment cannot take advantage of - the fact that, prior to the trial, plaintiffs made an assignment of all their interest to a third person, which assignment was of record.</p> <p>6. Attorney and client, § 105*—when no defense in action for fees that attorney represented both attachment defendant and receiver. It is no defense to an attachment suit to recover fees for legal services that in the proceeding in which the services were rendered plaintiffs represented both the attachment defendant and a receiver appointed by the court, where it does not appear that the interests of the receiver and such defendant were adverse, but does appear that no charge was made for the services rendered the receiver.</p>

<p>Building and construction contracts—when owner not liatm for materials and labor furnished under agreement to pay for same to contractor. In an action by a subcontractor against the owner of property tó recover for materials and labor furnished the principal contractor in the erection of a building thereon for which it is alleged that defendant agreed to pay, there can be no recovery where, according to plaintiff’s version of the agreement, defendant has already paid him for so much as he agreed to pay.</p>

<p>1. Appeal and error, § 1752*—when judgment may be affirmed because of insufficient abstract. Where the abstract of the record on an appeal from a decree is insufficient and does not comply with the rules of the Appellate Court, in that it contains an insufficient abstract of the decree and the master’s report and shows none of the exhibits or documentary evidence introduced on the hearing, the Appellate Court may either affirm the decree for that reason or may pass upon the merits.</p> <p>2. Mortgages, § 80*—when mortgage to secure future advances becomes prior lien. A mortgage may be made to secure future advances and become a prior lien for the amount loaned, even though no money is advanced until after subsequent mortgages are in force, and even though it does not state that it is given to secure future advances.</p> <p>3. Mortgages—when provision of trust deed as to foreclosure thereof for amount due on interest notes subject to lien for principal by other than holders of bonds is inapplicable. The provision of a trust deed that, in case the interest notes of the bonds secured by it shall- become the property of any person other than the holders of the bonds, the trust deed may be foreclosed for the amount due upon such interest notes or any of them, as though they and the principal sum were secured by separate deeds of trust, provided, however, that such foreclosure shall in all respects be secondary and subject to the lien of the trust deed for the security of the principal sum and any and all interest notes other than those for which the foreclosure is had, only applies where one who becomes the owner of interest notes seeks to foreclose them, and not to a controversy between the holder of the bonds and trust deed and the holder of a mortgage, who had also purchased interest notes of the former mortgage, as to the priority as between their respective liens.</p> <p>4. Mortgages—when purchaser of interest coupons first maturing is not entitled to preference in payment over bonds. The purchaser of interest coupons of bonds secured by a mortgage which were the first of such coupons to mature is not entitled to preference in payment over the bonds where the trust deed provides that all of the bonds are equally secured “without any preference or priority whatsoever,” hut such purchaser has a concurrent lien with the holder of the bonds to the amount of his coupons.</p> <p>5. Mortgages, § 257*—when agreement for extension of time for payment of bonds not shown. Evidence held insufficient to show an agreement by the holder of bonds secured by a trust deed to extend the time for the payment of such bonds.</p> <p>6. Mortgages, § 538*—what decree of foreclosure and sale should provide as to payment where parties have coneurrent liens. A decree on foreclosure which finds that the two parties between whom there is a controversy as to the priority of liens held by them on the property have a lien concurrent with each other for the amounts due them and also provides for the sale of the property, should provide that the parties be paid in the proportion of their respective interests out of the proceeds.</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. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 138*—when direction of verdict for defendant proper in action for injuries to person struck in crossing in front of car. In an action to recover for personal injuries to one struck in crossing the track in- front of a street car which she saw approaching, evidence held sufficient to support a directed-verdict for defendant.</p> <p>2. Carriers, § 366*—when not duty to stop street car to take on passengers. There is no rule of law requiring a street railway company to stop its cars -to take on passengers at all points on signal.</p> <p>3. Street railroads, § 63*—when failure to stop car does not constitute actionable negligence. In an action to recover for personal injuries through being struck by a street car while crossing the track, proof of a failure to stop the car at a corner to take on passengers does not, of itself, show actionable negligence.</p> <p>4. Street railroads, § 73*—when failure to give warning of approach of car is not negligence. In an action to recover for personal injuries received while attempting to cross the track in front of an approaching street car, negligence is not established by proof that no bell was rung or warning given, where plaintiff admits that there was nothing to obstruct her view of the car and that she saw it from time to time as it approached.</p> <p>5. Street railroads, § 75*—when car not traveling at abnormal rate of speed. In an action to recover for personal injuries received while attempting to cross the track in front of an approaching street car, evidence held not to show that the car was traveling at an abnormal rate of speed.</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. Infants—when fraudulent representations as to age not shown. In an action to recover back a part payment on the purchase price of an automobile made while plaintiffs were minors, evidence held insufficient to show fraudulent representations by plaintiffs as to their ages.</p> <p>2. Infants, § 23*—when entitled to rescind contract of purchase and recover part of price paid. Minors, upon restoration of an automobile to the seller, although it has been used and has deteriorated in value, are entitled to rescind the contract of sale and recover back that part of the purchase price which has been paid.</p>

<p>Error to the Superior Court of Cook county; the Hon. Mazzini Slussek, Judge, presiding. Heard in this court at the March term, 1917.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 411*—when objection that corporation is not properly in court may not be raised. An objection that a corporation is not properly in court as a party defendant cannot be raised on appeal for the first time.</p> <p>2. Evidence, § 333*—when parol is admissible to show true consideration. Parol evidence is admissible for the purpose of showing the true consideration which enters into the making of a written contract.</p> <p>3. Evidence, § 325*—when parol is admissible to show bill of sale to be mortgage. Parol evidence is admissible to show that a bill of sale of personal property of a corporation was intended as a chattel mortgage.</p> <p>4. Appeal and ebbob, § 450*—when objection that improper evidence was admitted may not be raised. Error in the admission of parol evidence cannot be complained of on appeal where no objection to the admission of such evidence was made before the master in chancery hearing the case.</p> <p>5. Evidence, § 342*—when parol is' admissible to prevent perpetration of a fraud. Although a bill of sale is absolute in its terms, evidence is admissible to show contemporaneous oral agreements between the parties indicating that it was intended as a chattel mortgage, in order to prevent the perpetration of a fraud.</p> <p>6. Cobpobations, § 189*—when corporation is necessary party complainant. Ordinarily, when a corporation’s right or interest is sought to be enforced by proceedings in a court of equity, the proceedings should be begun in the name of the corporation, and it usually is a necessary party complainant.</p> <p>7. Cobpobations, § 188*—when stockholder may maintain suit against directors or officers individually. Equity will permit a stockholder, either individually or on behalf of himself, to maintain a suit against the wrongdoing directors or officers, where it appears and is averred that the corporation itself refuses to begin the suit, or where it is disclosed by the complainant’s pleading a state of things exists which renders it reasonably certain that a suit by the corporation would be impossible and a demand unavailing.</p> <p>8. Cobpobations, § 188*—when shown that demand on corpora¡tion to bring suit against directors or officers would be unavailing. Evidence held sufficient to show that a demand by complainant on a corporation to bring suit against wrongdoing directors and officers of the corporation would be unavailing.</p> <p>9. Appeal and error, § 410*—when question of failure of stockholder to make demand on corporation to bring suit is raised too late. The question of failure of a stockholder to make demand on a corporation to bring suit against wrongdoing directors or officers before instituting a suit individually cannot be raised on appeal where such question was not raised in the trial court by plea, demurrer or otherwise.</p> <p>10. Equity, § 66*—when maxim that he who comes into equity must come with clean hands is inapplicable. Any wrongdoing of an executrix individually cannot be imputed to her in her official capacity so as to render applicable the equitable maxim that he who comes into equity -must come with clean hands.</p> <p>11. Corporations, § 187*—when stockholder not denied equitable' relief because of small holding of stock. The fact that the interest of a stockholder in a corporation is only 1 per cent, of the total stock is not ground for denying him equitable relief against one to whom a bill of sale, claimed to be a chattel mortgage, was issued by the corporate officers and who refuses to make an accounting.</p> <p>12. Chattel mortgages—when evidence sustains verdict for complainant in action by stockholder against mortgagee for an accounting. On a bill by a stockholder against the corporation and one holding a bill of sale of corporate personalty, which is claimed to be a chattel mortgage, for the appointment of a receiver and to compel an accounting by such alleged mortgagee, evidence held sufficient to support a decree in favor of complainant.</p> <p>13. Chattel mortgages, § 7*—what is evidence that bill of sale was intended as mortgage. The fact that a bill of sale claimed to be a mortgage of corporate personalty is acknowledged by a justice of the peace is evidence that the instrument was intended to be a mortgage, since the acknowledgment by a justice of the peace is unnecessary to give the instrument validity as a bill of sale.</p> <p>14. Appeal and ebbob, § 1399*—when findings of master not disturbed. The findings of a master in chancery based upon conflicting evidence will not be disturbed on appeal where the master had an opportunity to hear and see the witnesses and judge of their credibility.</p> <p>15. Corporations, § 552*—when appointment of receiver is proper. The appointment of a receiver for a corporation is proper where a mortgagee of corporate personalty is required by decree of a court of equity to render an accounting for the benefit of stockholders and there is no person authorized to receive the money coming from such accounting ■ for the corporation.</p>

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

<p>Abstract of the Decision.</p> <p>1. Pabtnebship—what is duty of surviving partner as to accounting. A surviving partner is required to make a prompt and complete accounting as to all partnership assets in his possession in the court where the estate of the deceased .partner is being administered.</p> <p>2. Pabtktebhip, § 280*—what is capacity in which surviving part- - ner holds assets of. The surviving partner becomes, by the death of the partner, a trustee, in effect, of all the interests of the deceased, at the time of his death, in the partnership assets for the benefit of those entitled to a distributive share of the deceased partner’s estate.</p> <p>3. Partnership—what is right of surviving partner as to deriving personal benefit at expense of representatives of deceased partner. A surviving partner sustains a fiduciary relationship towards the representatives of the deceased partner which prohibits him from deriving any personal benefit from a deceased partner’s interest in the partnership assets at the expense of such representatives.</p> <p>4. Partnership—what is effect of contract upon failure of surviving partner to render accounting to beneficiary of deceased partner. The fact that a surviving partner has not complied with a fiduciary obligation imposed upon him by the partnership relation to render an accounting to the beneficiary of the deceased partner under the will is immaterial where a contract is entered into defining and fixing all the rights of the parties.</p> <p>5. Partnership—when fiduciary relation not created between firm organised by widow of deceased partner and one organised by surviving partner. Where, after a dispute between the surviving partner and the representatives of the deceased partner respecting the use of insurance records used in the partnership business, a contract was entered into between the firm organized by the surviving partner and a firm organized by the widow of the deceased partner, whereby such records were to be kept by the firm of which the surviving partner was a member and were to be made accessible to the other firm, it was held that a fiduciary relation was not created between the surviving partner’s firm and the other firm.</p> <p>6. Contracts, § 187*—when construed in accordance with interpretation or conduct of parties. Where the language used in a contract is ambiguous or its meaning doubtful, the court may have resort to other aids than the language used in the contract to determine its meaning, such as the interpretation placed upon the contract by the parties themselves or by their conduct, but these aids will not be resorted to where the language of the contract is clear and not doubtful.</p> <p>7. Insurance—records of agency as assets. An insurance agency has no good-will and its records are not assets capable of reduction to a money value.</p> <p>8. Injunction, § 4*—when mandatory will not be issued. On a bill to restrain the firm organized by the surviving partner of an insurance partnership from making a wrongful use of certain insurance records of the former partnership and denying complainant, the widow of the deceased partner, her rights under an express contract regarding the use of such records, held that the records were of such doubtful property value that the right to use them under the contract would not be enforced by a mandatory injunction.</p> <p>9. Partnership—when contract between partnerships for unrestricted access to insurance records of former partnership limited to specified period. Under a contract between two firms, one of which had as a member the surviving partner of an insurance partnership and the other the widow of the deceased partner, providing that all of the parties should cause to be inserted in the proper place in the records of the former partnership a complete underwriting record of all policies or business renewed by any of the parties during the period from a certain previous date to the making, and that so long as either of the members of the firm organized by the widow continued in business each member was to be given unrestricted access to and use of the underwriting records of the former firm, the right of unrestricted access is limited to such designated period.</p> <p>10. Specific performance—when contract between two partnerships for joint use of records of former partnership mil not be specifically enforced. A contract between two partnerships, requiring a joint use of certain records of another former partnership and performance of certain services by one partnership, will not be enforced by specific performance where it would necessarily require the court to supervise a considerable portion of the business and transactions of one party before it could be determined whether its orders were being complied with.</p> <p>11. Specific performance, § 1*—when contract will not be specifically enforced. A contract will not be enforced by specific performance where, from its provisions, it may be seen that the court would not be placed in a position where it could effectually enforce its decree with respect thereto.</p> <p>12. Specific performance, § 3*—when of contract properly denied. Relief by specific performance of a contract may be denied by a court, in its discretion, where the remedies of the parties under the contract are not mutual, or where the granting of such relief will compel the performance of personal services.</p>

<p>Abstract of the Decision.</p> <p>1. Building and construction contracts, § 103*—when evidence shows failure to perform, contract is due to conduct of defendant. In an action by contractors against an irrigation company to recover for breach of a contract whereby plaintiffs were to construct two canals for defendant,, evidence held, sufficient to show that plaintiffs were ready to perform the contract for the construction of one of such canals and that they were prevented from so doing by the conduct of defendant, and that plaintiffs were entitled to recover the profits which would have accrued to them if they had been allowed to perform the work.</p> <p>2. Damages, § 200*—when instruction on right of anticipated profits for breach of contract is not erroneous. In an action to recover for loss of profits for breach of a contract, an instruction as to what anticipated profits, if any, the jury might consider in fixing the amount of plaintiffs’ damages, held not erroneous when considered with other instructions.</p>

<p>1. Appeal and error, § 1034*—what judicial notice will be taken of on appeal. The Appellate Court will take judicial notice of the increasing number of motor trucks used for carrying freight and merchandise on the streets in thickly settled communities and of the inherent danger to pedestrians from the operation of such vehicles on public highways.</p> <p>2. Automobiles and garages, § 1*—when ordinance regulating operation of motor trucks in streets will be sustained. A municipal ordinance regulating the operation in the streets of motor trucks for the transportation of freight and merchandise will be sustained if there exist substantial reasons for its enactment and its more important provisions, without subjecting it to critical examination and analysis.</p> <p>3. Automobiles and garages, § 1*—what is power of council as to passage of ordinance regulating use of motor trucks on streets. A city council has power to pass an ordinance for the protection of persons lawfully on the streets from the risk of injury or death from motor trucks being operated on the streets.</p> <p>4. Automobiles and garages, § 1*—what considered-in passing upon reasonableness of ordinance regulating operation of motor trucks on streets. In passing upon the reasonableness of an ordinance regulating the operation of motor trucks on city streets, regard will be had to the fact that the council had to deal with a special and, in the main, new object.</p> <p>5. Municipal corporations, § 93*—Who has burden of proof to show unreasonableness of ordinance. The burden is on one attacking an ordinance on the ground that it is unreasonable to show clearly and affirmatively that it is unreasonable.</p> <p>6. Automobiles and garages, § 1*—what is duty of council in passage of ordinance regulating use of motor vehicles on streets. In the exercise of its power to legislate in a reasonable and fair manner for the protection of people using the streets against danger of injuries from colliding with motor vehicles operating in the streets, it is the right and duty of the council to provide such protection with as little expense and annoyance to the owners and operators of such vehicles as possible.</p> <p>7. Automobiles and garages, . § 1*—when ordinance regulating use of motor trucks on streets does not provide for unreasonable classification. If the classification of motor trucks in an ordinance regulating their operation in- the streets is not capricious and arbitrary but is based upon a reasonable theory, the ordinance will not be held invalid as unreasonable.</p> <p>8. Automobiles and garages, § 1*—When motor vehicle fender ordinance is not invalid as providing for an unreasonable classification. The provision of a fender ordinance requiring fenders to be attached to a class of motor trucks of a freight-carrying capacity is not invalid on the ground that it provides an unreasonable classification.</p> <p>9. Automobiles and garages, § 1*—what is test in determining validity of ordinance requiring fenders on certain class of motor trucks. In determining the validity of an ordinance requiring fenders on a certain class of motor trucks, the test is not whether the council acted with the highest degree of wisdom in drafting the ordinance, but whether there is a reasonable basis for its provisions.</p> <p>10. Automobiles and garages, § 1*—What is reasonable basis for classification of motor trucks in fender ordinance. There is such a substantial distinction between freight-carrying and passenger-carrying motors and between the operation of them as to furnish a reasonable basis for the classification of motor trucks on such lines in an ordinance providing for the use of fenders on motor trucks using the streets.</p> <p>11. Automobiles and garages, § 1*—when evidence insufficient to show invalidity of fender ordinance. An affidavit, made on information and belief, that owners of motor trucks which exceed a certain carrying capacity will not be able to procure fenders for them as required by a city ordinance is not sufficient ground for holding the ordinance invalid where the affidavit is directly contradicted by other affidavits.</p> <p>12. Automobiles and garages, § 1*—when motor fender ordinance not invalid as discriminating in favor of makers of fenders. The fact that before the passage of a motor fender ordinance certain tests of fenders were made, and that the ordinance provides that where such tests comply with all of its provisions a certificate of efficiency shall be issued to the makers, does not render the ordinance invalid as unfairly discriminating in their favor.</p> <p>13. Automobiles and garages, § 1*—when motor truck fender ordinance does not dispense with further tests of fenders after change. The provision in an ordinance requiring fenders on motor trucks, held not to dispense with further tests of fenders which have been changed after having been submitted for test.</p> <p>14. Municipal corporations, § 90*—when ordinance not invalidated as a whole because of invalidity of part. The invalidity of a provision in a motor fender ordinance dispensing with tests of fenders which have been changed after once undergoing the test does not invalidate the whole ordinance.</p> <p>15. Automobiles and garages, § !*•—when provision in ordinance relative to height of fender for motor vehicles is not unreasonable. The provision in a motor fender ordinance that a “fender of a projecting type shall be provided with mechanism for varying the height of at least the lower portion of same from a minimum distance of 4% inches to not less than 10 inches above the road surface” is not unreasonable and does not render the operation of such trucks impracticable.</p> <p>16. Automobiles and garages, § 1*—when motor fender ordinance is not invalid as conferring unreasonable power upon municipal' executive board as to testing fenders. The provisions of a motor fender ordinance conferring power upon a municipal bureau to supervise certain prescribed tests of fenders, such fenders to be approved by the superintendent of police after the tests are made, does not confer an unreasonable and arbitrary power upon an executive board and does not give the bureau power to prevent the free and equal use of the streets.</p> <p>17. Automobiles and garages, § 1*—when motor truck fender ordinance is not invalid as imposing double tax on owners. The provision in an ordinance requiring that motor trucks of a specified class be equipped with approved fenders, held not to impose a double tax on owners of vehicles subject thereto by reason of the fact that it requires persons, firms and corporations desiring a test for a fender to deposit the sum of $200 to cover the expense of such tests, but such provision is merely a regulation.</p> <p>18. Automobiles and garages, § 1*—what is power of cities to adopt motor vehicle fender ordinance. Under the power conferred upon cities to regulate the use of the streets, they may adopt an ordinance requiring certain classes of motor vehicles to be equipped with approved fenders.</p> <p>19. Appeal and error, § 1712*-—when point not argued deemed waived. On appeal, a point which is merely suggested in the statement of facts and is not supported by authorities nor urged on the argument is deemed to have been waived.</p>

<p>1. Appeal and error, § 800*—^necessity of notice of motion for rule to file new appeal bond appearing in bill of exceptions. The fact of notice to an appellant’s attorney of a motion for a rule to file a new appeal bond can be made to appear only by a bill of exceptions, and the recital of such notice in the clerk’s transcript of the record is unavailing.</p> <p>2. Appeal and error, § 1265*—what presumed in absence of bill of exceptions showing proceedings relative to strilcing appeal bond from files'. In the absence of a bill of exceptions showing the proceedings upon which an order was entered striking an appeal bond from the files for insufficiency, it will be presumed. that the proceedings were regular and that objections to the bond were duly filed and that the notice required as a basis for the order was duly given.</p> <p>3. Appeal and error, § 675*—what is effect of order granting appeal authorizing cleric to approve security on power of court to cancel or reject bond. The fact that the order granting an appeal authorizes the clerk to approve the security does not require that the proceedings for further examination of the surety and requiring new security shall be had before the clerk, but the court still retains the power to cancel or reject the bond so approved and to require another.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the. Branch Appellate Court at the March term, 1917.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 493*—when record of judgment against principal admissible against surety. A record of a judgment against the principal, a building contractor, is admissible in an action against the surety on the bond where there is no contention that any fraud was used in obtaining the judgment against the "principal, or that the various items or expenses which it was claimed were expended in the completion of the building, upon default of the contractor, were not correct, or that the amount of the judgment making up these items was not correct, and constituted a prima facie case.</p> <p>2. Appeal and error, § 1411*—when finding of jury not disturbed. A finding of a jury based on conflicting evidence, and sustained by the trial judge, will not be disturbed on appeal.</p> <p>3. Judgment, § 493*-—what does not affect admissibility of against principal in action against surety. The admissibility of a record of a judgment against the principal on a building contractor’s bond, in an action against the surety on the bond, is not affected by the fact that the first action was in assumpsit and the later action was in debt.</p>

<p>Abstract of the Decision.</p> <p>1. New tut at., § 58*—when granted because of inadequacy of verdict. Contrary to the common-law rule, under the modem rule a new trial may be awarded where the verdict is grossly inadequate for the same reasons as where the verdict is excessive.</p> <p>2. Negligence, § 250*—when verdict is not against manifest weight of evidence. In an action to recover for personal injuries, evidence examined and held not to show that the verdict was manifestly against the weight thereof.</p>

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

<p>Brokers, § 5*-—what is effect of lack of broker’s license on right of recovery of share of commissions from broker. The fact that the plaintiff, in an action in the Municipal Court of Chicago, against a real estate broker to recover on a promise alleged to have been made by defendant to pay him one-half of the commissions received by defendant from customers secured by plaintiff, is not the holder of a broker’s license from the City of Chicago does not preclude him from recovering.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.</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>Partnership—when quitclaim deed executed and acknowledged by one partner constitutes release of liens on land of. A quitclaim deed executed in the name of a partnership “by” one of the partners who also acknowledged the deed constitutes a valid and binding • release of mortgage liens held on the land by the partnership.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.</p>

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

<p>1. False imprisonment, § 37*—when verdict not excessive. A verdict of $400 for false arrest and imprisonment is not excessive where it appears that plaintiff, while in humble circumstances and. somewhat shiftless, was not a criminal and that he was rather roughly awakened at night by defendant, the chief of police of a village, and was forcibly and against his will and over his protest marched through the. village streets and locked in a cell in the village police station, without any complaint or 'warrant against him.</p> <p>2. Damages, § 17*—liability of defendant as affected by poverty of plaintiff. In an action to recover for false arrest and imprisonment, the liability of the defendant cannot be measured by the poverty of the plaintiff.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 142*—when instruction is erroneous as placing too high a degree of care on motorman to avoid collision with wagon. In an action against a street railway company to recover for personal injuries through being struck by a car while driving across defendant’s track, too high a degree of care is imposed by an instruction, given at plaintiff’s request, that if the jury believe from the evidence that the motorman saw “or could have seen by the exercise of ordinary care and caution” that plaintiff, “in the exercise of ordinary care for his safety,” was going to reach the crossing before the car, then it was the motorman’s duty “to so operate and control said street car that he could stop it and avoid a collision,” and that if they find that the motorman did not have such control and the car and the wagon collided by reason thereof and injured plaintiff, they should find defendant guilty.</p> <p>2. Appeal and error, § 1652*—when erroneous instruction on negligence not cured by correct instruction. In an action to recover for personal injuries where the duty of plaintiff and defendant towards each other is the vital question in the case, error in giving an instruction at plaintiff's request which required defendant to exercise such care as virtually to make it an insurer is not cured by the fact that an instruction was given at defendant’s request which correctly stated the law on the question.</p> <p>3. Street railroads, § 142*—when instruction on right of person crossing track to rely upon motorman avoiding collision is erroneous. In an action to recover for personal injuries by being struck by a street car in crossing the track at a street crossing, an instruction asked by plaintiff that “the plaintiff as a matter of law had a right to rely upon the duty and ability of the motorman in charge of said street car to so operate and control said street car as to avoid a collision,” is objectionable as being misleading and as taking away from the jury the determination of the fact as to whether the, motorman was in the exercise of ordinary care in controlling his car, or whether he was guilty of a lack of such ordinary care as to bring about the accident.</p> <p>4. Instructions, § 126*—impropriety of abstract instruction. The giving of an instruction stating an abstract proposition of law, while not reversible error, is not to be commended.</p> <p>5. Instructions, § 126*—when abstract instruction is erroneous. An instruction stating an abstract proposition of law which is not applicable to the facts in evidence should not be given.</p> <p>6. Street railroads, § 83*—mutuality of rights and duties of cars and vehicles at crossings. The rights and duties of street cars and vehicles at intersecting crossings are correlative.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 573*—what is effect of substitution of receivers as parties for corporation. Where, in an action against a street railway company, the plaintiff amends his proceedings by substituting as defendants the receivers of the street railway company, the railway company is automatically eliminated from the case and it is not error to overrule its motions to instruct a finding in its favor or to arrest the judgment.</p> <p>2. Carriers, § 476*—when evidence supports verdict in action for injuries. In an action to recover for personal injuries received in attempting to board a street car, evidence held to support a verdict for plaintiff.</p> <p>3. Corporations—when■ original declaration considered as part of allegations against receivers substituted as parties. The original declaration in an action against a street railway company is to be included as a part of the allegations against the receivers of such company where, as amended, it stands against the receivers in place of the company.</p> <p>4. Pleading, § 243*—when order of amendment includes all pleadings. An order of amendment in an action against a street railway company which provides that “all papers and proceedings herein be amended” by making certain persons, stated to be receivers of such company, party defendants, is sufficiently broad to include the amendment of all the papers then on file, pleas as well as declaration.</p> <p>5. Carriers, § 464*-—propriety of rulings on. evidence in action by passenger for injuries. In an action by a passenger to recover for personal injuries received in boarding a street car, rulings of the court as to the admission and exclusion of evidence held not erroneous.</p> <p>6. Damages, § 142*—when not excessive. In an action to recover for personal injuries, a verdict for $2,500 is not excessive where the evidence shows that plaintiff suffered painful injuries necessitating an operation and his remaining in the hospital for 10 days, that he suffered much pain and had to return to the hospital a month later for further treatment, necessitating the use of an anassthetic, and that he suffers from headache and an ear discharge and is somewhat deaf.</p>

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 518*—when reason for appointment of receiver without hand must appear in order of appointment. Where a bond is not exacted upon the appointment of a receiver in foreclosure proceedings, the reason for appointing a receiver without bond must appear by an appropriate recital in the order of appointment.</p> <p>2. Mortgages, § 515*—necessity of notice and full hearing in proceedings for receiver. When a bond is not exacted of the receiver in foreclosure proceedings, there must be notice and a full hearing.</p> <p>3. Mortgages, § 515*—what constitutes sufficient service of motion for appointment of receiver on party. Service on a party of notice of a motion for the appointment of a receiver without bond in foreclosure proceedings is sufficient when made hy leaving a copy of the notice with her husband and codefendant.</p> <p>4. Mortgages, § 518*—when order of appointment of a receiver must contain finding of ground of waiver of notice of applications for order for receiver and hond. A provision in a trust deed which waives notice of the application of an order for a receiver and the giving of a bond by the complainant does not dispense .with the necessity of a finding in the order of appointmeht of a ground for such waiver, hut the order should recite that the bond was not required because waived by the terms of the trust deed.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 349*—when bond given on interlocutory order granting injunction without notice against collection of judgment is invalid. Where the bond given on an interlocutory order grant- ■ ing, without notice, an injunction, which restrains, among other things, the collection of certain judgments obtained by defendant against complainant, does not provide for the payment of such judgments in the event that the injunction is dissolved, such bond is in violation of Hurd’s Rev. St. ch. 69, sec. 8 (J. & A. If 6168).</p> <p>2. Judgment, § 349*—who has right to assess damages where interlocutory order granting injunction is reversed on appeal. Where an interlocutory order granting an injunction is reversed on appeal, the assessment of defendant’s damages is for the chancellor and not for the Appellate Court.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>1. Judgment, § 343*—when hill to enjoin enforcement of is insufficient. A hill to enjoin the enforcement of a judgment on the ground that through the error of the clerk of the trial court in entering of record as a denial of a motion to vacate the judgment, an order denying a motion to quash an execution issued on the judgment of such court, complainants, who were unable to secure a review of such order, should show what allegations were made in the petition to quash the execution.</p> <p>2. Municipal Court of Chicago, § 19*—when has power to cor-red error of clerk in entering of judgment. The Municipal Court of Chicago has power to correct, on motion, an error of the clerk in entering a judgment on its records even though 30 days had elapsed between the date the judgment was entered and the time when the party affected by the error learned of it.</p> <p>3. Appeal and error, § 1380*—when error in abuse of discretion of trial court will be corrected. A defendant against whom a judgment has been obtained by confession may move to quash the execution issued thereon or to vacate the judgment, and if the court, on a sufficient showing, abuses its discretion in ruling upon such motion, the abuse may be corrected by appeal to a court of review.</p> <p>4. Judgment, § 343*—when bill to enjoin enforcement of should show request of trial judges to correct error. A bill to enjoin the enforcement of a judgment on the ground that the clerk erred in entering the denial of a motion to quash the execution thereon as a denial of a motion to vacate the judgment, should, where it alleges the refusal of the judges of the trial court to correct the error, show that such correction had been requested by motion or in some other legal manner.</p> <p>5. Judgment, § 319*—when equity will not afford relief against enforcement .of. Where complainants seeking to enjoin the enforcement of a judgment were not prevented from obtaining relief in the trial court through any fraud, accident or mistake, but had opportunity by proper proceedings to present their defenses and by appeal to correct any error committed in the proceedings to obtain or vacate the judgment, equity will not afford them relief.</p> <p>6. Appeal and error, § 718*—when order allowing appeal need not appear in record. Where a record discloses that an appeal from an order denying a motion to dissolve an injunction was prayed and that this prayer was followed by the filing of an appeal bond for costs, np order of the lower court allowing the appeal need be disclosed in the record.</p>

<p>Abstract of the Decision.</p> <p>1. Fraudulent conveyances, § 242*—when evidence shows that conveyance by debtor to wife is presumptively fraudulent as to creditors. On a bill by a judgment creditor against the judgment debtor and the latter’s wife to set aside a conveyance by the debtor to the wife and subject it to the payment of the judgment, evidence examined and held sufficient to support a finding that such conveyance was presumptively fraudulent and void as to creditors whose claims were in existence when the conveyance was made.</p> <p>2. Fraudulent conveyances, § 45*—when actual insolvency need not be shown. To set aside a voluntary conveyance by a judgment debtor as in fraud of ■ the judgment creditor, it is'not necessary to show that, at the time of the conveyance, the debtor was actually insolvent.</p> <p>3. Fraudulent conveyances, § 89*—what is effect of marital relation in determining whether conveyance is void. In ascertaining whether a conveyance from husband to wife is in fraud of creditors, while the marital relation is not, of itself, sufficient ground for holding the transaction void, it is ground for closely scrutinizing the transaction.</p> <p>4. Fraudulent conveyances, § 300*—when decree conforms to bill. On a bill to set aside a conveyance as in fraud of creditors, decree rendered held to follow sufficiently the theory appearing in the bill.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Hastes and sebvant, § 76*—what will not defeat contract l>y officer of corporation for employment of servant. The contract of one who enters into a contract of employment with the president of a corporation, in good faith and without knowledge of internal regulations of the management affecting such contracts, cannot be defeated by showing that such contract was entered into by the president in violation of a private resolution of the corporation’s directors.</p> <p>2. Hastes and servant, § 84*-—when good faith in entering into contract of employment is shown. Evidence in an action to recover damages for a breach of contract of employment, held sufficient to show that plaintiff entered into such contract in good faith.</p>

<p>Abstract of the Decision.</p> <p>1. Injunction, § 162*—when granting of order for without notice is improper. That an order of injunction was granted without notice is ground for reversal, unless it appeared from the bill and affidavit that the rights' of complainant would have been unduly prejudiced if the injunction had not been issued immediately or without notice.</p> <p>2. Injunction, § 162*—when granted without notice. To justify the issuance of an injunction without notice, it is not sufficient to state conclusions of prejudice, but facts must be stated from which the court can draw the conclusion that an immediate injunction without notice is necessary to save complainant from harm.</p> <p>3. Injunction, § 67*—when will not be granted because seeking specific performance of contract. An injunction which, in. effect, seeks the specific performance of a contract for the construction of a building, involving the preparation of plans and specifications by the court and the superintendence of their carrying out, "will not be granted.</p> <p>4. Injunction, § 13*—when denial proper because of adequate remedy at law. An injunction which seeks to have a court of chancery deliver to complainant possession of premises described in a lease from defendant will not be granted, complainant having an adequate remedy at law.</p>

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

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

<p>• Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1916. Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Railroads, § 461*—when ordinance as to speed of trains within city limits applies. A city ordinance providing that no corporation shall run a passenger train within the city limits at a greater speed than 10. miles an hour is applicable to the case of a railroad employee injured while at his employment on a railroad right of way within such limits;</p> <p>2. Appeal and error, § 1411*—when finding on conflicting evidence not disturbed. Evidence as to the speed of defendant’s train being conflicting, finding of jury indorsed by the court will not be disturbed.</p> <p>3. Railroads, § 536*—when evidence shows operation of train at negligent speed. Evidence held sufficient to show, independently of an ordinance limiting the speed of railroad trains within the city limits, that defendant was negligent in operating its train at a high rate of speed at the time and place it was charged with knowledge that the employees, of other roads might rightfully be on its right of way and in danger.</p> <p>4. Railroads, § 508*—who is not a trespasser. An employee of another railroad is not a trespasser on a railroad right of way in going thereon in the course of his employment according to an established usage and custom, where the inner rails of the tracks of the two roads are but 8 feet apart and the line between the two rights of way was unmarked halfway between such rails.</p> <p>5. Railroads, § 589*—when contributory negligence of switch-man struck by engine of another railroad on parallel track is for jury. Whether the reasons why plaintiff, a switchman, failed to see the approaching engine of another railroad on another track which struck and injured him were sufficient reasons, and whether he was measuring up to the standard of the hypothetical prudent man in stepping off of one side of his engine instead of the other, held to be questions for the jury, in an action to recover damages for personal injuries.</p> <p>6. Railroads, § 569*—when no variance in admission of evidence of customs as to use by employees of adjoining roads of respective rights of way of other roads. Evidence of customs in operation of defendant’s trains and in that of other trains on an adjoining track and right of way of another road as to a common use by the employees of each road of the other’s right of way, held competent as bearing not only on the question of plaiptiff’s care hut also on the question of notice to and knowledge of defendant that plaintiff or his fellow-servants might be at the place he was injured, notwithstanding the declaration contained no averment of such customs, in an action to recover damages for such injuries.</p> <p>7. Appeal and ebbor, § 438*—when question of variance may not he raised. A variance between the allegations and the proof cannot be first raised on appeal.</p> <p>8. Railroads, § 569*—what does not constitute variance hettoeen declaration in action for negligence against several railroads alleging joint ownership of yards, and proof. A declaration containing positive allegations of defendant’s negligence causing injury to plaintiff, a switchman of one railroad, and due care on his part, with proof supporting such allegations, held good on motion in arrest of judgment, notwithstanding such declaration alleged also the joint ownership, use, operation and maintenance by defendant and four others, original defendants for whom a directed verdict was given at close of plaintiff’s evidence, of the railroad yards in which were located the railroad tracks of all five, of which allegation of joint ownership, use, operation and maintenance there was no proof.</p> <p>9. Instructions, § 128*-—when instruction directing verdict is had. An instruction directing a verdict with the court’s reasons therefor held had.</p> <p>10. Instructions, § 128*—when court may refuse to pass again on refused instruction for directed verdict. A party cannot require the court to pass again at the close of a case on an instruction for a directed verdict offered and refused at the close of the plaintiff’s evidence.</p> <p>11. Instructions, § 135*—duty of party to offer proper requested instructions. A party should offer desired instructions unincumbered by improper matter, and a court is under no duty to so instruct of its own motion.</p> <p>12. Instructions, § 153*—duty of court as to modification of. The court may modify or qualify an instruction as tendered or give instructions without request, but a party cannot complain of the court’s failure to do so.</p> <p>13. Appeal and error, § 1241*—when party cannot complain of court erroneously treating question as at issue in modifying instruction. A party cannot complain that the court in modifying an instruction erred in treating a question as at issue which was not, where the instruction^ as tendered assumed such an issue, by asking the court to instruct that there was no evidence upon such an issue.</p> <p>14. Railuoads—when modification of instruction on right of recovery by employee injured while on right of way of another company without latter’s consent is proper. An instruction that if plaintiff, a switchman of another railroad, was upon defendant’s right of way without defendant’s consent and was struck by defendant’s engine because he was upon such right of way he could not recover, held properly modified by instructing that such consent might be express or implied and that the jury might consider knowledge and acquiescence in any habit and custom proven in-that regard, in an action to recover damages for personal injuries.</p> <p>15. Damages, § 110*-—when for personal injuries not excessive. A judgment for $5,000 held not excessive where plaintiff was seriously and permanently injured and disabled probably for life from performing services as a switchman efficiently as before the injury.</p>

<p>1. Partnership, § 51*—when declarations of partner as to the existence of are inadmissible. The declarations and acts of an alleged partner are not admissible, in an action against the alleged copartners, upon the question of the existence of a partnership where such alleged partner was not served and did not appear.</p> <p>2. Witnesses, § 43*—when wife of alleged partner is incompetent as a witness. The wife of an alleged partner who was not served and did not appear is incompetent under section 5 of the Evidence Act (J. & A. If 5522) to testify to conversations between him and his alleged copartner and a third person, in an action against the alleged copartners, since the husband is interested in the event.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stoke, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>1. Chattel mortgages—what necessary to extend lien. Under the Chattel Mortgage Act (J. & A. V 7579), filing with the justice of the peace of an affidavit of extension of a mortgage and entry by him of same upon his docket are necessary to extend the lien of the mortgage, notwithstanding the act may have been otherwise complied with.</p> <p>2. Chattel mortgages, § 134*—when mortgage transfers legal title at time of delivery. A chattel mortgage in form “granting, selling, conveying and confirming” the mortgaged property to the mortgagee, transfers the legal title at time of delivery of the mortgage.</p> <p>o. Chattel mortgages, § 131*—when increase of live stock covered by mortgage. The increase of live stock after delivery of a chattel mortgage upon such live stock “granting, selling, conveying and confirming” such property to the mortgagee without referring to increase thereof is subject to the mortgage.</p> <p>4. Chattel mortgages, § 209*—when trial of right of property is proper remedy to determine right to property. Trial of the right of property under the Act of 1875 (J. & A. If 6814), levied upon by an execution creditor.and claimed by a third party under a chattel mortgage, is the proper form of action to determine the rights of the respective parties to the property in question.</p> <p>5. Chattel mortgages, § 209*—what demand upon sheriff levying is necessary before commencement of action to try right of property. No other demand upon a sheriff levying upon 'property taken as that of a judgment debtor need be made by a third party claiming the property under a chattel mortgage before commencing action to try the right of property under the Act of 1875 (J. & A. If 6814) than notification to the sheriff in form and manner prescribed in the statute.</p>

<p>1. Chattel mortgages, § 203*—what is right of mortgagee to take possession of only part of property under insecurity clause. A chattel mortgagee who exercises his right under the insecurity-clause of the mortgage to take possession of the mortgaged property on default of the mortgagor cannot take possession of part only of such property and retain his lien under the mortgage as to the remainder thereof as to third persons, but must, as that clause requires, declare the whole debt due, sell the property and account for the proceeds.</p> <p>2. Chattel mortgages—when second mortgage not invalid as to execution creditors of mortgagor. A second chattel mortgage is not invalid as to execution creditors of the mortgagor from the mere fact the debt secured by it was included in a first mortgage upon other chattels and that fact not recited in the second mortgage.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 892*—when refusal of court to direct verdict not reviewable. Where the refusal of the court to direct a verdict was neither abstracted nor covered by the errors assigned, no question was presented for review.</p> <p>2. Appeal and error, § 788*—what must appear in bill of exceptions as basis for review of instructions and sufficiency of evidence. Where bill of exceptions as abstracted contained only the evidence and did not include instructions, which were only certified by the clerk as a part of the record, and it was not shown who offered them, plaintiff, defendant or the court on its own motion, or that any one objected to them when given, and no motion for a new trial appeared iff the bill of exceptions, held that neither the instructions nor whether the evidence sustained the verdict would be considered, notwithstanding the record proper, as distinguished from the bill of exceptions, set out the instructions and motion for a new trial.</p>

<p>Appeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Drainage—when finding that district is estopped to recover money paid out by treasurer will not be disturbed. In an action on the official- bond of the treasurer of a drainage district, the finding of the court on the question whether plaintiff drainage district was estopped from demanding that money he paid back to the district after it has been once paid for the benefit of the district will not be disturbed.</p> <p>2. Drainage, § 54*—when commissioners have no power to use funds. Drainage commissioners have no power to use funds appropriated, levied and collected for a certain purpose for another and different purpose.</p> <p>3. Drainage, § 55*—what indebtedness may not be incurred or paid by district. A drainage district cannot lawfully incur or pay indebtedness created prior to the levying of an assessment appropriating money for such purpose.</p>

<p>1. Pleading, § 161*—limitation of defense to matter set out in amended affidavit of merits under former statute. Under section 36 of the Practice Act prior to July 1, 1907, if an original affidavit of merits was adjudged insufficient and defendant asked leave to file an amended affidavit, the court had a right to require him to state therein the facts showing a meritorious defense, and when he filed such affidavit his defense was limited to what he set out therein.</p> <p>2. Pleading, § 161*—what is rule under present statute as to giving evidence of matter of defense where affidavit of merits filed. Section 55 of the present Practice Act (J. & A. jf 8592), considered in connection with the corresponding section 36 of the prior Practice Act, and decisions construing same, requires that when the nature of the defense was required to be stated in an affidavit of merits all the defense the party has should be so stated, and he will not be permitted to give in evidence any matter of defense not so stated in the affidavit.</p> <p>. 3. Pleading, § 150*—what is meaning of words “specify the nature of the defense’’ in statute relating to affidavit of merits. The words “specify the nature of the defense” used in section 55 of the Practice Act (J. & A. j[ 8592) mean that the affidavit of merits must set out the facts which constitute the defense, so that the plaintiff may have reasonable notice what the defense is.</p> <p>4. Pleading, § 148*—limitation of recovery to what is stated in affidavit of claim as connected with declaration. Plaintiff can prove and recover only what is stated in his affidavit of claim, and not that unless he has an appropriate declaration on the cause of action.</p> <p>5. Pleading, § 150*—when pleading appropriate to defense set out in affidavit of merits is essential. Defendant can only prove such defense as is stated in his affidavit of merits, and not that or have a verdict upon it unless he has a pleading appropriate to that defense, with the statutory exceptions of demurrers and motions.</p> <p>6. Pleading, § 161*—when instruction on waiver of matter of defense not set out in affidavit of merits proper. An instruction that defendant waived matter of defense not set out in his affidavit of merits, held proper.</p> <p>7. Appeal and error, § 1674*—when plaintiff waives insufficiency of affidavit of merits. In an action to recover on the consolidated common counts, with a copy of the account and affidavit, for plumbing work, to which defendant pleaded set-off and recoupment, with affidavit of merits as to “damages in the sum of $350 by reason of the breach of the contract sued upon in the declaration,” on which issue was joined, without plaintiff moving to expunge this fact from the affidavit of merits, and plaintiff offered evidence to prove his entire case, held that plaintiff thereby treated defendant’s affidavit of merits as sufficient to require such proof, and an instruction that the jury must regard it as admitted that .the labor and material sued for were furnished was erroneous.</p> <p>8. Instructions, § 118*—when instruction is erroneous as inapplicable to evidence. The giving .of an instruction, under a set-off claimed for certain advertising, that if a specific agreed price was not established by a preponderance of the evidence no credit should be allowed for the advertising, was erroneous where the undisputed evidence showed that the advertising was worth a certain amount.</p>

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

<p>Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stoug-h, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Breach of marriage promise, § 20*—when evidence shows promise of marriage. Evidence held sufficient to warrant a finding that defendant promised to marry plaintiff, in an action to recover for breach of such promise.</p> <p>2. Breach of marriage promise, § 29*—when verdict is not excessive. A judgment for $10,000 held not excessive, in an action for breach of promise of marriage, where defendant owned $40,000 worth of property and plaintiff had lived with him many years and nursed him and personally attended him in serious illness.</p> <p>3. Breach of marriage promise, § 18*-—when evidence of payments by plaintiff for household expenses out of her own,funds is admissible. Testimony, in an action for breach of promise of marriage, of payments by plaintiff out of her own funds for household expenses while she and defendant were living together and of what defendant did not pay, held inadmissible under the common counts of the declaration as introduced but admissible upon withdrawal of such counts as tending to show and illustrate the relations of the parties.</p> <p>4. Evidence, § 160*—what is not proof of attempt to effect a compromise. A question on redirect examination of plaintiff’s witness, after sharp cross-examination to show the witness was unfriendly to defendant, whether witness had gone to plaintiff at a certain time for the purpose of trying to get plaintiff in the interest of defendant to drop the suit, to which witness hnswered he had, held to be proper and not proof of an attempt by defendant to effect a compromise, as witness was not asked if he went by defendant’s authority or what he said and he did not so testify.</p> <p>5. Appeal and error, § 1514*—when statement of counsel not reversible error. A statement by plaintiff’s counsel to the jury that the evidence showed that defendant’s conduct was monstrous, in an action for breach of promise of marriage, held not prejudicial error in view of the admitted facts in the case.</p> <p>6. New trial, § 102*—when not granted on ground of newly-discovered evidence. An affidavit of a witness’ husband, with whom she was not then living, tending to controvert her testimony as to a certain conversation, when she had testified he was present at a time when they were living together, held insufficient to warrant a new trial on the ground of newly-discovered evidence, in an action for breach of marriage promise, where, if such testimony by him were admitted, it would be largely outweighed by other testimony already in the case, and where the affidavits of others available in support of his affidavit were not procured.</p>

<p>Abstract of the Decision.</p> <p>1. Pleading, § 153*—when affidavit of merits is insufficient. An affidavit of merits by defendants that they believed they had good defense to the whole of plaintiff’s demand, held good under the Practice Act prior to July 1, 1907, hut insufficient under section 55 of the present Practice Act (J. & A. If 8592), in not stating the nature of defense.</p> <p>2. Pleading, § 313*—when affidavit of merits is insufficient because not swearing as to truth of specified items. An affidavit of merits by defendants’ attorney and agent that he believed defendants had good defense to the whole of plaintiff’s demand and stating that defendants would give in evidence that plaintiff was indebted to defendants at commencement of the action in a certain amount composed of certain specified items and that such amount arose out of plaintiff’s demand, held insufficient under section 55 of the Practice Act (J. & A. If 85.92), in not swearing to the truth of the specified items.</p> <p>3. Pleading, § 153*—when affidavit of merits insufficiently specifies items of set-off and recoupment. An affidavit of merits held insufficient in specifying items of set-off or recoupment, in an action for rent of a store building.</p> <p>4. Pleading, § 367*—when affidavit of merits should he stricken from files. A motion to strike defendants’ affidavit of merits from the files and enter judgment for plaintiff for the amount stated in his affidavit of claim, held improperly denied, unless leave should be obtained to file a new affidavit of merits, where such affidavit was insufficient in not swearing to the truth of the items of set-off or recoupment specified therein and in the statement therein of such items, as such affidavit conclusively admitted defendants owed plaintiff the amount stated in his affidavit.</p>

<p>1. Pleading, § 409*—what not put in issue hy plea of general issue. A plea of general issue in an action to recover damages for injuries sustained by plaintiff being run over by an automobile alleged to have been owned by defendant and operated by his minor son, held not to put in issue defendant’s ownership and operation of the car.</p> <p>2. Automobiles and garages, § 3*—when denial of motion for leave to file plea is proper. A motion at close of the evidence, in an action to recover damages for injuries sustained by plaintiff by being run over by an automobile alleged to have been owned by defendant and operated by his minor son, for leave to file a plea denying defendant’s ownership of an automobile of a certain make, held properly denied where the declaration did not allege that the automobile was of such make although some of plaintiff’s witnesses so spoke of it and defendant proved it was of another make, as such issue was immaterial.</p> <p>3. Appeal and error, § 1306*—when presumed that court refused to permit filing of plea because not in proper form,. Where a plea presented with motion for leave to file same was not preserved in the bill of exceptions, held that it would be presumed that the court refused to permit it to be filed because it was not in proper form.</p> <p>4. Automobiles and garages, § 3*—when evidence shows negligent injury by automobile. Evidence held sufficient to warrant a finding of defendant’s negligence, in an action to recover damages for personal injuries by being run over by an automobile.</p> <p>5. Automobiles and garages, § 3*—when responsibility of father for negligent operation of automobile by son is shown. Evidence held sufficient to warrant the finding of defendant’s responsibility for his minor son’s negligence in operating defendant’s automobile, which he bought and kept for family use, where he permitted his son to have access to the place where it was kept and- knew his son often used it and took no steps to prevent it.</p> <p>6. Instructions, § 106*—when instruction that no inference can be drawn against defendant not producing toitness is properly refused. An instruction that no inference could be drawn against'defendant from his failure to call as a witness his minor son, whose alleged negligence in the operation of defendant’s automobile caused the injuries to plaintiff, because of which an action .to recover damages was brought, held properly refused.</p> <p>7. Damages, § 211*—when instruction as to lack of evidence of permanent disability is property refused. An instruction that there was no evidence of permanent disability of plaintiff and that the jury had no right to guess that there may be such disability in view of the lack of testimony on that point, in an action to recover damages for personal injuries, held properly refused where the evidence showed that plaintiff was run over by defendant’s automobile and the wheels on one side seemed to have passed over his head, and that he was afflicted up to the trial with a lack of memory, and there were several circumstances from which the jury might infer permanency of injury.</p>

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

<p>Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>1. Indictment and information, § 54*—discretion of court as to compelling election of counts and time of election. In the particular case it was held that it was entirely within the sound discretion of the trial court to compel the People, on motion of defendant, to elect under which counts of an indictment they would ask defendant’s conviction, as well as the time when such election should be required. ”</p> <p>2. Indictment and information, § 59*—what is not ground for quashing indictment. The presence in the grand jury room of a certain attorney not regularly appointed as assistant to the State’s Attorney but assisting the latter and under his direction and supervision questioning the witnesses as to certain facts of which he had special knowledge by reason of having been attorney for the receiver of the bank, the embezzlement of whose funds the grand jury were considering, but who was not present in the grand jury room at any time when the grand jury were deliberating upon the case or discussing questions pertaining to the finding of an indictment, or when any vote was taken, and who was not shown guilty of any improper conduct while so engaged or in the room, held to be insufficient legal basis for quashing the indictment.</p> <p>3. Indictment and information, § 59*—when indictment will not be quashed. That a grand jury may have heard or considered some incompetent evidence is not ground for quashing an indictment.</p> <p>4. Indictment and information, § 59*—when presence in grand jury room of abstract of testimony in bankruptcy proceedings is not ground for quashing indictment. Where there was in the grand jury room during their consideration of an indictment for embezzlement of the funds of a bankrupt bank a typewritten abstract of certain testimony which had been taken before a referee in bankruptcy, but no proof that the grand jury had any knowledge of its contents or that it was referred to or considered by them in any way, the indictment will not be quashed.</p> <p>5. Criminal law, § 194*—discretion of court as to employment of special counsel for State. The employment of special counsel to assist in prosecution of a criminal case is a matter resting in the sound discretion of the trial court.</p> <p>'6. Evidence, § 430*—when witnesses are competent to testify as to value of assets of estate of bankrupt banking partnership. The testimony of the attorney' for a trustee and of a referee in bankruptcy and of an accountant expert, all • having special knowledge of the contents of the books, papers, accounts and assets of the bankrupt’s estate and of the" bankruptcy proceedings and able from such knowledge to give summaries from such records and proceedings concerning the transactions disclosed thereby, and to express opinions as to the value or lack of value of a large portion of the assets, held to be competent in a prosecution of the members of a banking, partnership for embezzlement from such estate.</p> <p>7. Embezzlement, § 18*—when schedules in bankruptcy proceedings are admissible in prosecution of members of bankrupt banking partnership. The schedules filed in ae bankruptcy proceeding and all it disclosed, held to be competent evidence in a prosecution of the members of a bankrupt banking partnership for embezzlement of the estate, although the proceeding was involuntary, where it was instituted and instigated by the bankrupt through the instrumentality of the petitioning creditors.</p> <p>8. Embezzlement, § 18*—what is competent evidence as to value of assets of bankrupt. Proof of what a trustee in bankruptcy realized in money from the assets within a comparatively short time after the failure, held to be competent evidence tending to show their value and their value at the time of the failure, in a prosecution of the bankrupts for embezzlement of the estate.</p> <p>9. Embezzlement, § 18*—what is competent evidence of loss of depositor in bankrupt bank at time of failure. Proof of what a trustee in bankruptcy for a bankrupt bank realized in money from the assets within a comparatively short time after the failure, held to be competent evidence tending to show the loss, if any, of a depositor on the day of the failure, in a prosecution for embezzlement . of such depositor’s money.</p> <p>10. Embezzlement, § 18*—what is evidence of value of assets of private bank at time of failure. Defendants’ acts and conduct for 2 years prior to their bankruptcy in repeatedly Resorting to questionable devices and practices to avert bankruptcy, held sufficient to throw light upon the question of the value of .their assets at the time of the failure, in a prosecution of the members of a banking partnership for embezzlement of funds of the bank.</p> <p>IT. Witnesses, § 243*—when constitutional rights of defendants in criminal prosecution are nof violated. The constitutional rights of defendants charged with embezzlement of bank funds are not violated by introduction in evidence of the bank books, papers and-documents, in the presence of the trustee in bankruptcy of the bank.</p>

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

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads,. § 599*—when evidence shows giving of signal by crossing flagman to proceed, causing collision. Evidence held sufficient to warrant the finding that defendant's crossing flagman signaled the train of another railroad on which plaintiff was employed as bralceman to come on, as a result of which a collision occurred at the crossing and plaintiff was injured.</p> <p>2. Appeal akd error, •§ 1000*—when question of admissibility of evidence will not be reviewed. Where neither the abstract nor the record showed an offer of evidence urged on appeal as having been made and refused or that the matter was brought to the attention of the court by question or otherwise or that the court ruled upon it, held that the question involved in such evidence was not presented for review.</p> <p>3. Railroads—when instruction on right of recovery for negligence of railroad company colliding with train of another is correct? In an action by a brakeman of one railroad company against another railroad company to recover for injuries received in a collision at a railroad crossing, an instruction to the effect that if the jury believed from the evidence that plaintiff was exercising due care for his own safety and defendant was negligent, plaintiff would have a right to recover damages to the extent sustained, held to be proper notwithstanding it did not include also the statement that defendant Would not be liable if plaintiff’s employer at the time was negligent, or equally negligent, or contributed to the accident, as that was matter of defense.</p> <p>4. Damages, § 211*—when instruction on prospective is correct. An instruction concerning prospective damages, held proper as given where there was evidence of consequences following plaintiff’s injuries, of weakness of sight of an injured eye, of continued trouble with one wrist following the injury, and of intermittent headaches continuing after injury.</p>

<p>Error to the Circuit Court of Rock Island county; the Hon. William T. Chtjegh, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Akpeax amd ebbob, § 1238*—when party may not complain of error as to capacity in which sued: Where appellant was equally responsible with appellee in assuming, in the trial of the case that he was sued therein as administrator instead of as an individual, held that he is not in the position to complain on appeal of the error, and that the jury were misled to his prejudice thereby.</p> <p>2. Pleading, § 32*—what .may 6e treated as surplusage. Where action was brought against two defendants upon a declaration containing several counts, some of which charged a joint liability and one of which charged an individual liability of one defendant and also a joint promise of the two to pay the debt, and at the close of plaintiff’s evidence the action was dismissed as to the one not so charged with individual liability and continued to judgment against the other so charged, and there was no evidence showing or tending to show a joint liability, held, that the charge of a joint promise in the count charging such individual liability might be rejected as surplusage and recovery be had under such count on such liability.</p> <p>3. Appeal and ebrob, § 1458*—when fact that there is no proof of hill of particulars is immaterial. Where a bill of particulars showing joint liability was filed with a declaration, some counts of which charged joint liability and one count of which charged individual liability of one defendant, under which count no bill of particulars was required, and upon which count only, issue was joined, trial had and judgment entered, the fact that there was no proof of such bill of particulars was not ground for reversal.</p> <p>4. Instructions, § 114*—when instruction is applicable to issue of consideration for promise. An instruction in effect that if the jury believed from the evidence that defendant purchased a certain business from plaintiff’s father who owed her a certain amount of money and thereupon promised and agreed to pay said amount they should find the issues joined for plaintiff, was not erroneous as ignoring the question of consideration under the issue tried, as, if defendant made the promise, he made it as part of the transaction in which he acquired the business, and that furnished the consideration.</p> <p>5. Appeal and error, § 1535*—when instruction on preponderance of evidence is not reversibly erroneous. An instruction as to preponderance of evidence, stating various elements to be considered by the jury in determining same without including that of the number of witnesses, held not reversibly erroneous where it tended rather to prejudice the party offering same, who had two witnesses to the opposite party’s one, on a material issue.</p> <p>6. Appeal and error, § 1410*—when judgment is not against weight of evidence. A judgment was not against the weight of the evidence where the situation particularly required a view of the witnesses and hearing their spoken words to aid in a proper conclusion in considering certain letters also introduced in evidence.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at th% April term, 1917.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1040*—when duty of appellant to point out error. Where error was assigned in the admission of testimony without pointing out same and there was a statement in the brief that sufficient grounds were not laid for introduction of a certain judgment and that it was not valid, it was appellant’s duty to point out the error, the record of the judgment being without defect on its face.</p> <p>2. Forcible entry and detainer, § 46*—what is effect of deed to redeeming creditor on right to bring. Where plaintiff in an action of forcible entry and detainer became owner of the premises by purchase and deed from a sheriff as a redemption creditor under his judgment obtained on the last day of the 15 months from the foreclosure sale from which he redeemed, a conveyance by the debtor on the same day to plaintiff did not prejudice plaintiff’s rights in such action under his deed from the sheriff.</p> <p>3. Appeal and error, § 1488*—when admission of incompetent evidence in trial by court is harmless error. Where trial was before the court without a jury, and competent and uncontradicted evidence supported the finding and judgment, it was not material error if other evidence not technically competent was heard.</p>

<p>Error to the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>1. Criminal law, § 103*—when special pleas are properly stricken from files. Special pleas not dilatory filed with general issue in a criminal case are unnecessary and are properly stricken from the files.</p> <p>2. Criminal law, § 496*—how question whether evidence is same as on former appeal may he determined. The Appellate Court to determine whether the evidence in a criminal case before it is the same in the present record as in the record when the same case was formerly before it may properly examine both the opinion and the former record remaining in the Appellate Court.</p> <p>3. Criminal law, § 496*—when decision on former appeal is not binding. In a criminal prosecution for the sale of intoxicating liquors in anti-saloon territory and for keeping a place which was a nuisance in violation of the Dramshop Act (J. & A. If 4637 et seq.), held that the record in the case contained new evidence not in the case when it was formerly before the court, so as not to render the decision on the former appeal binding.</p> <p>4. Intoxicating liquors, § 1$l*^when evidence shows that defendant was Keeper of place where liquors were sold. Evidence held to warrant a finding that defendant was the real keeper of the place and that liquors were sold there during the time covered by the information, in a prosecution under the Dramshop Act (J. & A. H 4637 et seq.) for the sale of liquor in anti-saloon territory.</p> <p>5. Intoxicating liquors, § 112*—what is effect of acquittal under some counts of information. The acquittal of a defendant in a criminal case under several counts of an information for sales of liquor in anti-saloon territory in former trials, held no bar to a conviction under another count for keeping a room where intoxicating liquor was sold.</p> <p>6. Criminal law, § 227*—when refusal to allow reopening of case for introduction of testimony is proper. In a prosecution for the sale of intoxicating liquor in anti-saloon territory, and for keeping a place which was a nuisance, the refusal of the court to reopen the case and permit defendant to explain why he gave his wife a deed to the premises to secure her, instead of a mortgage, after he had already testified fully in chief and on cross-examination and recall giving his explanations, was not erroneous.</p> <p>7. Intoxicating liquors, § 158*—when instruction in criminal prosecution is proper. An instruction in the language of the Dram-shop Act, in a prosecution for the illegal sale of intoxicating liquor in anti-saloon territory and for keeping a place which is a nuisance under such act, is not erroneous.</p>

<p>1. Domicile, § 6*—when new residence is acquired. The place of residence of a party is a matter of intention, and when a residence has once been obtained it is not lost by any temporary departure from that place, which remains the residence of the party until he or she has acquired another residence, which does not mean merely a temporary abode.</p> <p>2. Domicile, § 16a*—when evidence shows residence at particular place. Evidence held sufficient to show that defendant did not in law or fact acquire or intend to acquire a permanent residence elsewhere than a certain city, where she and plaintiff were residing when they separated, and that she was a resident there at the time she filed her bill for divorce in question.</p> <p>3. Appeal and eerob, § 1270*—when presumed that evidence was received to support finding as to jurisdiction. The findings pi a court of general jurisdiction as to jurisdictional facts necessary to constitute service are conclusive against collateral attack unless .irreconcilable with facts otherwise disclosed by the record, and in aid of such finding it will be presumed on appeal that evidence was heard to support the finding where it is competent to receive evidence for that purpose.</p> <p>4. Divorce, § 77*—when finding in decree shows service of summons hy copy of hill and notice. The service of summons by copy of the bill and notice are conclusively shown by a finding in decree of divorce to that effect, notwithstanding the affidavit of service is defective, where the certificate of evidence contains no proof on the question of service.</p> <p>5. Equity, § 122*—how proof of service may he made. While' section 14 of the Chancery Act (J. & A. j[ 894), relating to service on nonresident Of a copy of the bill, permits such service to be proved by affidavit, it also provides that service may be proved “to the satisfaction of the court,” and consequently proof otherwise than by affidavit may be made.</p> <p>6. Divorce, § 22*—what is a sufficient allegation of residence of complainant. A description in a bill for divorce.of complainant as “Your oratrix, Alma C. Tobias, of Peoria, in the County of Peoria, State of Illinois,” is a sufficient allegation of residence' in Peoria county.</p> <p>7. Equity, § 479*—when decree not granted. Where a bill filed to set aside a decree of divorce contains no allegation of any lack of sufficient service in the divorce suit, complainant is not entitled to a decree upon a ground not alleged in the bill.</p> <p>8. Equity—when will set aside decree. Courts of equity will not set aside a decree Upon the ground that it was obtained by false evidence, but only for fraud, which gives a court colorable jurisdiction over the defense presented.</p> <p>9. Divorce, § 134*—when evidence shows intention of husband not to live with wife. Evidence held sufficient to warrant the finding that complainant, in a suit to set aside a decree of divorce procured by his wife against him, did not intend at the time he left his wife to live with her again, but intended to roam about the world at will, free from any responsibility to his wife and child.</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 195*—when verdict should not he directed. If there is evidencé from which if it stood alone the jury could without acting unreasonably in the eye of the law find that all the material averments of the declaration or some count thereof have been proven, the cause' should he submitted to the jury, instead of directing a verdict.</p> <p>2. Trial, § 200*—when direction of verdict in action of replevin is improper. Plaintiffs evidence that he and a certain party had agreed that upon such party paying plaintiff a certain amount and settling certain bills against plaintiff the latter would turn over to such party four mules, that thereafter such party said he had forgotten one item and that he would only pay plaintiff a certain lesser amount, in which change plaintiff refused to acquiesce; that such party .paid, nothing to plaintiff, but took the mules from the agister upon paying the latter’s fees, and removed them to defendant’s farm and later sold two of them, and that plaintiff brought an action of replevin after demand, held to make out a case for plaintiff, if true, and the direction of a verdict for defendant upon the latter’s evidence of a different agreement was erroneous, even though the court thought the defendant had the preponderance of the evidence.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Instructions, § 63*—when instruction erroneous as assuming facts. An instruction assuming that there was a contract between plaintiff and defendant for the sale by plaintiff of defendant’s property and that plaintiff brought about the sale in controversy, which was a sharply disputed question in the case, held erroneous, in an action to recover a commission on the sale.</p> <p>2. Instructions, § 12*—necessity of definiteness. An instruction which was very indefinite, uncertain and might mislead the jury should not be given.</p> <p>3. Instructions, § 88*—when instruction on determination of preponderance of evidence is erroneous. An instruction upon the determination of the preponderance of the evidence, undertaking to enumerate the elements to be considered and omitting the element of the number of the witnesses, and also the element as to the candor and fairness or lack- thereof of the witnesses, held erroneous, notwithstanding the witnesses were equal in number, as the number differed on some points.</p>

<p>1. Judgment, § 323*-—what proof necessary to justify setting aside in equity. To justify a court of equity in setting aside a judgment because the return of service of the summons is untrue, the proof must be clear and convincing.</p> <p>2. Process, § 85*—what proof is insufficient to overcome return of service of summons. Where the return of service of the summons is made by an officer whose duty it is to serve the writ, it will not be set aside on the testimony alone of the person alleged to have been served.</p> <p>3. Process, § 85*—when, ex parte affidavit of officer does not impeach other testimony as to service of summons and return. An ex parte affidavit executed by a former deputy sheriff in another State a year after leaving the State as to the manner in which he had served a certain summons and made return of service thereof did not impeach his later testimony based upon a memorandum made by him at the time of making such service and return and discovered by him after making the affidavit, in a suit to set aside the judgment rendered upon such summons and return.</p> <p>4. Process, § 85*—what does not impeach testimony of officer as to making return of summons. The testimony by an office deputy sheriff that he had, by direction of the deputy sheriff making the service of a summons, made the return of the summons thereon for the latter, did not impeach the latter’s testimony that he had himself made the return, as it was immaterial whether he wrote the return personally or through the office deputy.</p> <p>5. Insurance, § 456*-—what constitutes waiver of time limit for filing proofs of loss. The announcement by an insurance company to the beneficiary of a policy issued by it within 6 months after a loss that it does not intend to pay the loss is a waiver of a requirement of the policy that proof of loss must be furnished by a beneficiary within 6 months.</p> <p>6. Judoment, § 318*—when evidence is insufficient to warrant vacation of. Evidence held insufficient to vacate a judgment for recovery of a loss under an insurance policy where the only defenses, in a suit to set aside the judgment, were technical.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 701*—when evidence shows that negligence of plaintiffs fellow-servant is proximate cause of injury. Evidence held sufficient to warrant the finding that the negligence of plaintiff’s fellow workman in failing to hold up a certain lehr or conveyor in defendant’s bottle factory while plaintiff was hammering at the drift pin in repairing the lehr, by reason whereof plaintiff's hammer was so deflected as to strike and injure him, was the proximate cause of the injury.</p> <p>2. Workmen’s Compensation Act, § 2*—what is effect of rejection of. Plaintiff’s right of recovery for injuries sustained while employed by defendant was not affected by any question of assumed risk or contributory negligence or by the fact that the negligence which caused the injury was the negligence of a fellow-servant, where defendant had rejected the Workmen’s Compensation Act.</p> <p>3. Appeal and error, § 1238*—when defendant may not complain as to variance. Defendant was not in position to question the sufficiency of plaintiff’s proof in support of his allegation that defendant had rejected the Workmen’s Compensation Act, where defendant in its asked and given instruction had admitted it was not working under that act and it was not liable to its employees for injuries suffered in the course of their employment unless such injuries were caused by its negligence.</p> <p>4. Damages, § 141*—when not excessive. A verdict for $2,700 was not excessive where the injuries received resulted in permanent loss of plaintiff’s left eye.</p>

<p>Abstract of the .Decision.</p> <p>1. Bills and notes, § 327*—what is not legal defense to indorser of note at time of execution by makers. The failure of the payee of a note secured by an unrecorded trust deed to redeem from a sheriff’s sale under a subsequent recorded trust deed is not, as a matter of law, a legal defense to an indorser on the note at the time it was executed by the makers in an action against him as such indorser.</p> <p>2. Bills and notes, § 333*—when loss of indorser due to failure of payee to record trust deed may be offset in action by payee. Where the payee of a note holding a trust deed as security therefor failed to record the deed and the property involved was sold under a subsequent recorded trust deed, held that in an action against an indorser on the note at the time of its execution by the makers, the indorser might plead in offset the extent of any loss by him due to the payee’s neglect in recording the trust deed held by him.</p> <p>3. Bills and notes, § 460*—when reason for failing to record trust deed securing note is question for jury. In an action by the payee of a note secured by a trust deed against one indorsing the note at the time of the execution thereof by the maker, held that whether plaintiff failed of his own accord to record the deed of trust or because of defendant’s request was a question for the jury.</p> <p>4. Appeal and error, § 1411*—when finding of jury not disturbed. Evidence held insufficient to warrant the finding that the jury should have found for defendant Instead of for plaintiff on a sharply controverted question of fact between them.</p> <p>5. Bills and notes, § 431*—when admission of parol evidence in action against indorser of note is not error. Evidence of a conversation taking place at the time defendant signed a note as. indorser, not admitted for the purpose of varying or changing the character of defendant’s liability or legal obligation as indorser and not having that effect, was properly submitted to the jury under an instruction that defendant assumed by signing his name the obligation of an indorser and that such obligation could not he changed hy parol evidence, in an action against the indorser.</p> <p>6. Instructions, § 10*—number of on same point. The court is not bound to give more than one instruction on the same point.</p> <p>7. Bills and notes, § 277*—what is/effect of note falling due on Sunday as to time of making demand of payment. An instruction that defendant would be released as indorser on the note sued on and due and payable in one year from date, if plaintiff failed to exhibit the note and demand payment from the makers on the purported date of maturity, held properly refused where the evidence showed that the latter date was Sunday, as under the statute the note became due the day following and demand could be legally made on that or on the next day.</p>

<p>1. Intoxicating liquors, § 227*—when evidence shows that liquor furnished by defendants contributed to intoxication of father of plaintiff. In an action hy a minor against saloon keepers under section 9 of the Dramshop Act (J. & A. If 4609), to recover for the death of plaintiff’s father, alleged to have been due to intoxication caused hy liquor purchased of defendants, evidence held sufficient to show that the liquor furnished hy defendants to the decedent contributed to his intoxication, to satisfy the requirements of the Dram-shop Act, without showing that it contributed in an appreciable and essential degree.</p> <p>2. Intoxicating liquors, § 261*—when defendants may not complain of failure of proof that liquor furnished, decedent contributed to his intoxication. In an action by a child, against saloon keepers to recover for the death of her father as the result of intoxication, held that defendants were not in position to complain that the proof was insufficient to show that the liquor furnished decedent 'by them contributed to his intoxication in an appreciable and essential degree, where the jury were advised in instructions asked' by defendants that such liquor must have so contributed to such intoxication, and the evidence warranted a finding at least 15 glasses of beer were sold to him in 3 hours.</p> <p>3. Intoxicating liquors, § 208*—when plaintiff may show that intoxication was caused by other saloon keepers than defendants. In an action under the Dramshop Act to recover for the death of plaintiff’s father, claimed to have been due to intoxicating liquor furnished by defendant saloon keepers, plaintiff can prove that intoxication was caused by saloon keepers other than the defendants.</p> <p>4. Intoxicating liquors, § 261*—when defendants may not complain of insufficient proof to show intoxication. Where testimony that other than defendants contributed to a party’s intoxication was kept out by defendants, in an action under the Dramshop Act, defendants were not in position to complain of insufficient proof to show intoxication.</p> <p>5. Intoxicating liquors, § 218*—when evidence as to change in circumstances of plaintiff is inadmissible. Subsequent advantageous change in the circumstances of a plaintiff, in an action to recover damages for death of plaintiff’s parent under the Dramshop Act, cannot be given in evidence in mitigation of damages, and same does not diminish the damages.</p> <p>6. Intoxicating liquors, § 245*—when verdict is not excessive in action for death of parent. In an action under the Dramshop Act to recover for the death of plaintiff’s father, held that a verdict for $4,500 was not excessive for the loss of the father, where he had been earning $50 a month, spent $3 a week for her board, bought her clothing and other necessaries and took care of her, and she was 6 or 7 years old at the time of his death and 12 years old at the time of trial.</p> <p>7. Intoxicating liquors, § 233*—what are proper elements of damages in an action for death of parent. In an action under the Dramshop Act to recover damages for the death of plaintiff’s parent, the value of his life, the value of his services in the attention to and care and superintendence of his children and in their education, of which they are deprived by his death, were proper elements of pecuniary damage.</p> <p>8. Pabent and child, § 11*—what are rights of child, as to support hy parent. A child is entitled to support from her father during her minority and to a reasonable expectation of benefit, as of right or as of grace or favor, from the continuance of his life.</p>

<p>1. Executobs and administbatobs, § 164*—how statutes as to al- ' lowances for support of widow or children construed. The provisions of statutes allowing awards out of the estate of a decedent for the support of his widow, or child or children if he left no widow, for a period after his death should be construed liberally.</p> <p>2. Executobs and administbatobs, § 164*—right of widow or child to reasonable award for support out of estate. Sections 74, 75, 77 of the Administration Act (J. & A. HIT 123, 124, 126), providing for awards to a decedent’s widow, or child or children if he leaves no widow, contemplates that the award shall be a reasonable one for the proper support for a period of one year after his death in a manner suitable to condition in life of the person to whom the award is made, taking also into account the condition of the decedent’s estate.</p> <p>3. Executobs and administbatobs-—when allowance to child for support is insufficient. An award of $1,200 held insufficient and $1,800 allowed, under sections 74, 75, 77 of the present Administration Act (J. & A. 123, 124, 126), to a child of decedent who, during the latter’s last illness, became afflicted with rheumatism and was suffering with same at the time of his death and would require medical attention and treatment, care and nursing for a year thereafter, where the decedent left an estate valued at $50,000.</p>

<p>1. Mechanics’ hens, § 1*—what is effect of doing work or furnishing of materials on a building. The doing of work or furnishing of materials on a building gives merely an inchoate lien or right to acquire a lien, and the statute prescribes the steps to be taken to perfect this lien.</p> <p>2. Mechanics’ hens, § 5*—how statutes relating to are to be construed. A mechanic’s or materialman’s lien is a secret one, existing only by statutes which are in derogation of the common law and opposed to common right and to be construed strictly.</p> <p>3. Mechanics’ liens, § 158*-—cumulative remedies. A mechanic’s or materialman's lien is a cumulative remedy, the "denial of which does not deprive a party of the right to a recovery on his contract in the usual way.</p> <p>4. Mechanics’ liens, § 152*—what does not operate to extend time for filing petition by subcontractor to enforce lién. Orders from the owners of a building to a subcontractor for items, charged to the owners, not for repair work done in connection with their original contract with the contractor, did not extend the time for filing a petition under the Mechanics’ Liens Act by the subcontractor to enforce a lien for other items furnished under the original contract with the contractor, which had expired, notwithstanding the owners had declared a default of the contractor in the meantime and themselves-completed the work.</p> <p>5. Mechanics’ liens, § 89*—what is effect of failure of owner to require statement of contractor before making of payment. The failure of the owner of a building to require from a contractor the statement provided for in section 5 of the Mechanics’ Liens Act (J. & A. f 7143), before making any payment to a contractor, does not bar the owner from asserting that he was compelled to pay more than the contract price to complete the work as a defense to a subcontractor’s claim, where the contractor’s statements were subsequently required and received.</p> <p>6. Mechanics’ hens, § 1*—what is not basis for lien. The right to a lien under the Mechanics’ Liens Act cannot be made to depend alone upon the omission of the owner to do or perform the duty imposed upon him by statute.</p>

<p>1. Executors and administrators, § 209*—When claim for part purchase price of land is properly disallowed. Where a note was given by decedent as part payment for certain land under a contract of purchase and was filed before it became due as a claim against his estate, held that such claim was properly disallowed by the Probate Court, under section 111 of the Administration Act (J. & A. IT 160), providing that where a decedent is seized of a legal or equitable title to real estate, the payment whereof has not been completed and the estate is unable to make complete payment therefor with advantage to the estate, the real estate may be sold and the proceeds held as asset's, where the court found the purchase could not be completed with advantage to the estate and without prejudice to the creditors and heirs.</p> <p>2. Payment, § 6*—when note constitutes. A promissory note, so long as it remains in the hands of the payee, is not treated as payment of the debt or claim unless it is so expressed or understood, but it may be given and accepted as payment and operate to create a new indebtedness based on the consideration of the old one.</p> <p>3. Payment, § 6*—when note does not constitute. Where a decedent died before the maturity of a note given by him under a contract for the purchase of certain real estate as part payment of the purchase price, and the note was filed as a claim against his estate, held that the court did not err in not treating the note as a payment made at the time it was given and in treating it as only evidencing a payment for land yet to be made.</p>

<p>1. Landlord and tenant, § 259*—When question for fury Whether damage from water due to leak in frozen pipes on premises. Evidence that a water leak whereby plaintiff’s goods were injured came from the freezing of pipes in the room leased by defendants as co-tenants, held sufficient to submit that question to the jury, if it was controlling, in an action to recover damages for such injury.</p> <p>2. Landlord and tenant—what is right of lessees to put another in possession and free themselves from liability for his negligence. Defendants as lessees under a certain written lease, held to he the owners of the leasehold interest and entitled as such, as to third persons and the public generally, to put somebody else in possession, control and occupancy as tenant and free themselves from liability for his negligence on the same principle and to the same extent that any owner of an interest in land may in that manner do.</p> <p>3. Landlord and tenant—what is liability of tenant for negligent use of premises. A tenant entitled to the possession and control of the leased premises is liable for the negligent use of such premises, resulting in injury to other tenants.</p> <p>4. Clubs, § 2*—when officers of club are not liable for negligent use of rented premises by society. Where defendants as lessees of certain premises signed the lease as managers of a certain local order of an unincorporated society which had no officers of such-designation and in which neither defendant held any office, charging him with any duty to care for the leased premises, a room, which the lease provided should be used for lodge or club purposes only, and which was so used by the order and was paid for out of its funds by its treasurer, one of defendants, held that the defendants were not liable for a negligent use of the premises by the order not shown to have been participated in by them personally, notwithstanding they were members thereof.</p> <p>5. Clubs—right to rent property. An unincorporated club may occupy and control property as tenant.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1917.</p>

<p>1. Municipal corporations, § 400*-—When declaration in action on contractor’s bond is sufficient. A declaration setting up a certain city ordinance for the paving of a street, a contract with the principal defendant for the work, and the specifications, breaches in failure to construct the paving and keep it in repair for 10 years in accordance with the contract, and the contractor’s bond in hcea verba, held good on demurrer, in an action on the contractor’s bond.</p> <p>2. Pleading, § 463*—when question whether declaration is bad is waived. The question whether a declaration is bad is waived where defendant files a plea to the merits after overruling of his demurrer to the declaration and does not move in arrest of judgment.</p> <p>3. Pleading, § 453*—when error in sustaining demurrer to pleas 'is waived. Error in sustaining a demurrer to pleas is waived by pleading over by other pleas the same matter in substance.</p> <p>4. Municipal corporations, § 400*—vShen action lies on construction bond. Where two bonds were given by a paving contractor to a city, one covering construction and the other covering both construction and maintenance of the improvement, held on demurrer to a plea that plaintiff should sue only on the latter bond, that the latter bond in no way impaired the covenant expressed in the former and that suit might he maintained on the former bond for the breach of any of its terms.</p> <p>5. Appeal and error, § 1455*—when improper sustaining of demurrer to plea is harmless error. The improper sustaining of a demurrer to a plea was not prejudicial error, where a plea over upon which the case was tried tendered the same issue.</p> <p>6. Bonds, § 41*—when judgment is erroneous. Judgment in an action to recover on a bond for damages, only, held bad in form and substance, and reversibly erroneous.</p> <p>7. Appeal and error, § 1807*—when case should be sent back for entry of proper judgment. If no error occurred before entry of a judgment which is bad in form and substance, the case should be sent back, not for new trial but for entry of proper judgment.</p> <p>8. Appeal and error, § 1410*—when verdict not disturbed as against weight of evidence. Evidence as to damages for breach of a paving contract held such as not to justify the holding that the amount found by the jury and confirmed by the court was not in accordance with the weight of evidence on the questions involved, where there were a large number of material questions resting on conflicting opinions and estimates from which no two juries would be likely to reach the same verdict.</p> <p>9. Municipal corporations, § 400*—when evidence of repairs and improvements by city are admissible in action on contractor’s bond. Evidence of repairs and improvements were properly admitted and considered in estimating plaintiff’s damages, in an action by a city to recover on a paving contractor’s bond, where there was an issue whether' the contractor had kept the pavement in repair in accordance with the contract and whether a settlement had been agreed upon and repairs made under its terms and instructions given as to repairs by both parties.</p> <p>10. Appeal and error, § 1526*—when plaintiff is not harmed by improper rulings or instructions. Plaintiff is not harmed by improper rulings or instructions on an issue found for him.</p> <p>11. Appeal and err&r, § 1543*—when instruction on credibility of witnesses is not reversibly erroneous. An instruction that the jury is not obliged to accept as true the testimony of any witness merely because he has testified positively to a fact or state of facts if, in their opinion, judging from their own common observation, he is or may he mistaken concerning the matters and things about which he has testified, and that they have the right to believe all the testimony of a witness or to believe it in part and disbelieve it in part or reject it altogether as they may find the evidence to he when considered as a whole, held not prejudicially erroneous.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 864*—what is duty of appellant as to filing abstract. It is the duty of an appellant to file an abstract showing the matters on which he relies for a reversal of the judgment.</p> <p>2. Appeal and ebbob, § 894*—what is right of appellee as to filing additional abstract. The appellee has the right to file an additional abstract, but is under no duty to make it full and complete.</p> <p>3. Appeal and ebbob, § 864*—when record will not be examined. A reviewing court will not examine the record to find grounds for reversing, but may do so to find reasons for affirming a judgment.</p> <p>4. Continúan ce, § 7*-—when denial of motion, for is proper. The denial of motion for a continuance in the middle of a trial solely on the ground of filing of additional counts which did not enlarge the bill of particulars and contained nothing to surprise the defendant or require continuance, was not erroneous.</p> <p>5. Appeal and error, § 1489*—when error in admission of evidence is harmless. The testimony of a witness to the result of a measurement of lumber, that he evidently only knew as he was told by the party measuring it in his presence, was incompetent, but its admission not harmful where there was other competent uncontradicted evidence of the same measurement.</p> <p>6. Appeal and error, § 1466*—when admission of hill of particulars in evidence is harmless error. The admission in evidence of plaintiff’s bill of particulars, over objection, was not reversible error where there was no reason to suppose it was„ considered or used by the jury as substantive evidence.</p> <p>7. Trial, § 233*—when hill of particulars is properly sent to jury room. The bill of particulars was properly sent to the jury room as part of the pleadings to he used by them in considering and discussing the items of the plaintiff’s claim, although it had been erroneously admitted in evidence, in an action of assumpsit to recover for labor performed.</p> <p>8. Trial, § 272*—when requested interrogatory is properly refused. An interrogatory to he answered by the jury, but not presented until after argument, is properly refused.</p> <p>9. Trial, § 270*—when special interrogatories are properly refused as a whole. Special interrogatories submitted to be answered by the jury and returned with their general verdict, held properly refused, considered as a whole, where they were directed to the several different items of plaintiff’s claim, seeking a finding upon each, and not to a controlling fact in the case as a whole, under the second clause óf section 79 of the Practice Act (J. & A. f 8616), providing that the jury may find specially upon questions of fact along with their general verdict.</p>