Volume 210 — Illinois Appellate Court Reports

<p>1. Automobiles and garages, § 3*—when contributory negligence of person struck by automobile is question for jury. In an action to recover for personal injuries received by one struck by an automobile as she was crossing the street after alighting from a street car, contributory negligence of plaintiff held a question of fact.</p> <p>2. Master and servant, § 844*—when master liable for tort of servant. To render a master liable in tort for the act of his servant, it must be made to appear that the servant was, at the time of the tort, acting within the scope of his employment.</p> <p>3. Master and servant, § 836*—what must be shown to make master liable for torts of another as alleged servant. To render one liable in tort for the act of another alleged to have been his servant, it is necessary to show that the tort-feasor wa¡s defendant’s servant, that the relationship existed at the time of the injury and with respect to the particular transaction from which the tort arose.</p> <p>4. Master and servant, § 845*—when servant acting within scope of employment in driving automobile. Where a chauffeur, after depositing his employer at his destination, drives the car to a moving picture theater, with his employer’s consent, and, after attending the performance, commences to drive the car hack to the garage, pursuant to the direct order of the employer, in thus returning he is acting within the scope of his employment and about the master’s business, and the doctrine of respondeat superior applies so as to render the employer liable for injuries to a pedestrian struck by the automobile as the chauffeur was returning it to the garage.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 135*—when contributory negligence of driver of wagon is question for jury. In an action against a street railroad company by the driver of a wagon to recover for personal injuries sustained in a collision at a street intersection, held that the contributory negligence of plaintiff was a question for the jury.</p> <p>2. Negligence, § 53*—what constitutes proximate cause. To constitute proximate cause, the negligent act or omission must be the cause which produced the injury, but it need not he the sole cause or last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time which, in combination with it, causes the injury or which sets in motion a chain of circumstances and operates on them in a continual sequence unbroken by any new or independent cause.</p> <p>3. Negligence, § 196*—when proximate cause of injury is question for jury. Whether a second injury received before a recovery from a prior one proximately results from the same cause as the prior injury, is ordinarily a question for the jury.</p> <p>4. Negligence, § 47*—when person may not recover for second injury. It is the duty of one who breaks his knee to use due care to effect a cure and prevent a second injury, failing in which he cannot recover damages for such second injury.</p> <p>■ 5. Damages, § 191*—when question for jury- whether proximate cause of second injury to Tcnee due to original injury. In an action for damages for personal injuries, where it appeared that plaintiff sustained a fracture of the patella of the right knee; that splints were put on and remained on the leg for 9 weeks; that, after these were taken off, he used crutches for a month and thereafter a cane, all under the advice of his physician; that while the injured limb was still swollen, and while plaintiff was walking along a sidewalk at night 3 days after starting back to work, using a cane, his left leg slipped and thereupon the right one doubled under him, fracturing the patella in the same place that it was originally broken, and the testimony of experts was in conflict as to the proximate cause of the second injury, held that the proximate cause of the second injury was a question for the jury.</p> <p>6. Appeal and error, § 1241*—when defendant in personal injury case cannot complain of instruction given on behalf of plaintiff. In a personal injury case, defendant cannot complain of the giving of an erroneous instruction on behalf of plaintiff, where, although an exception was taken to the instruction, yet, prior to reading the same, the instructions were all considered hy the court and counsel, out of the presence of the jury, in compliance with a rule of court, and at such conference the attorney for defendant said that he had no objection to it if given with the “antithesis” which he had drawn, and the court stated that they would be given jointly, which was done.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Makcus Kavanagh, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Bills and notes—when shown guaranty stamped on notes at or before time of signature. Evidence held to sustain the finding that the printed guaranty stamped on the hack of certain notes sued on over defendant’s signature was placed there at or before the time he signed his name thereto, in an action to recover on the guaranty.</p> <p>2. Bills and notes, § 27*—what constitutes delivery of note. Delivery of a note by the maker to the payee for the purpose of having the latter secure the guaranty thereon of another party, under an agreement between the parties that the payee would not accept the maker’s note without such guaranty, was not a legal delivery of the note as a negotiable instrument, and there was no such delivery until the guaranty was placed thereon and the note again returned to the payee in its completed form .according to the agreement.</p> <p>3. Bills and notes, § 159*—when consideration for guaranty of note must be shown. Where a guarantor indorses a note after a legal delivery to the payee is consummated a consideration must be shown, unless it appears that it was agreed between the maker,. the payee and the indorser that the latter should guarantee the note.</p> <p>4. Appeal and error, § 1410*-—when finding not disturbed as against weight of evidence. A finding that there was not such a valid contract of extension of the note sued on' as to release defendant as guarantor on the note, held not clearly against the weight of the evidence, in an action to recover against the guarantor.</p> <p>5. Bills and notes—when release of guarantor shown. Evidence held insufficient to show a release of defendant as guarantor on the note sued on by reason of a composition of the plaintiff with the maker of the note.v</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Ery, 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. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.</p>

<p>1. Labceny, § 35*—when not shown. Where defendant, accused of stealing a certain dollar bill placed on the floor by a police officer to ascertain if she would take it, as suspected, when she swept the floor, when charged by the officer with taking it, upon its disappearance after she had swept the floor, said she would get It, and it was found neatly folded in a garbage box on the' porch of the house, but defendant denied ever seeing the money before it was taken out of the box, held, that even if felonious intent existed and defendant’s purpose was to steal the bill when she left the premises that day, larceny of the bill was not shown, as there must be a taking from the actual or constructive possession of the owner.</p> <p>2. Labceny, § 35*—when felonious intention not shown. Evidence held insufficient to show beyond a reasonable doubt that defendant took a certain dollar bill, placed on the floor to ascertain if she would steal it, with felonious intention.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance—when evidence that applicant stated that he had no dead brother is erroneously stricken out. Evidence that in sured stated in his application for insurance that he had no dead brother was material to -the issue and was erroneously stricken out, in an action to recover on the benefit certificate, where the evidence tended to show that he had at the time he applied for the insurance a deceased brother, as, if he fraudulently made false answers to questions in his application that he had no brother dead for the purpose of inducing the defendant to issue to Mm the certificate, there could he no recovery thereon, whether his answer be considered a warranty or a representation.</p> <p>2. Insurance, § 752*—what considered in determining fraud in answer in application. As bearing on the question whether an untruthful answér to a question asked of an applicant for benefit insurance in his application was fraudulently made, the question of the materiality of the answer should be considered.</p> <p>3. Insurance, § 897*—when materiality of answers to questions in application question of law. The question of the materiality of answers to questions asked of an insurance applicant in his application is generally one of fact, but may become one of law when all reasonable minds would arrive at the conclusion that the answers were material.</p>

<p>Abstract of the Decision.</p> <p>1. Divorce, § 106*—when decree awarding alimony proper under hill. Evidence as to a settlement of the property rights of the parties to a divorce suit was properly admitted and a decree awarding alimony properly entered, notwithstanding no such relief was sought by the bill, under section 18, ch. 40, Rev. St. (J. & A. ¶ 4233), providing that when a divorce is decreed the court may make such order touching the alimony and maintenance of the wife as may be fit, reasonable and just.</p> <p>2.. Equity, § 489*—what relief granted under prayer for special and general relief. Where there is a prayer in a bill for special and general relief, the court may grant such relief under the general prayer as the allegations and proof permit, though the specific relief is denied.</p> <p>3. Divorce, § 106*—right of court under chancery powers to award amount of settlement and interest in insurance policy. Where the parties to a suit for divorce enter into an agreement for settlement of their property rights, the court in decreeing a divorce may award the amount of the settlement entered into by them and defendant’s interest in an insurance policy, notwithstanding there may be an adequate remedy at law, under its general chancery powers, as well as under section 17, ch. 40, Rev. St. (J. & A. ¶ 4232).</p> <p>4. Equity, § 295*—when replication deemed waived. Where an equity case is heard upon the pleadings and evidence without a replication having been filed, a replication must be deemed to have been waived.</p> <p>5. Equity, § 550*—when assumed that replication was filed. Where a praecipe in a record in an equity case called for certain pleadings and other matters, only, and not for all of the pleadings and matters, and the clerk’s certificate attached to the record stated it was a correct transcript of the record “as per praecipe,” held that a replication would be assumed to have been filed.</p>

<p>Equity, § 42*—when will not correct errors made in court of law. Where a hill set up five judgments obtained by complainants against defendants, an appeal in each case and a reversal on appeal to the Appellate Court, denial of a petition for rehearing in each case, filing in one case of a petition for certiorari in the Supreme Court and denial of a motion in each of the cases for a stay of issuance of a mandate until disposition of the petition for certiorari, award of certiorari, denial again of a motion in each of the other cases for a.stay of mandate, subsequent reversal by the Supreme Court of the judgment in the case involved in the petition for certiorari, which was after expiration of the term of the Appellate Court at which the judgments in the cases were entered by that court, and complainants prayed that the amounts due them on four of the judgments be ascertained and the defendants required to pay them, that the enforcement of the Appellate Court’s judgments be enjoined, that they be declared void and be removed as clouds upon the title to complainants’ property; held that the bill would not lie, as the judgments of the Appellate Court in the four cases were final after expiration of the term at which they were entered, and a court of equity will not sit as a court for the correction of errors made in a court of law.</p>

<p>Error to the Municipal Court of Chicago;' the Hon. John Stelk, Judge, presiding.</p>

<p>1. Municipal Court of Chicago, § 13*—when statement of claim in action of fourth class in tort is sufficient. A statement of claim in an action of the fourth class in the Municipal Court does not necessarily have to set forth a legal cause of action, provided, being in tort, it discloses the nature of the tort complained of and gives such further information as will reasonably inform the defendants of the nature of the case that they are called upon to defend.</p> <p>2. Municipal Court of Chicago, § 13*—when statement in action of fourth class for malicious prosecution is sufficient. A statement of claim in an action of the fourth class in the Municipal Court of Chicago for malicious prosecution was sufficient although omitting to state defendants acted without" probable cause, where it was otherwise sufficient, and defendants in their affidavit of merits set up probable cause, and evidence for and against that issue was presented.</p> <p>3. Malicious prosecution, § 13*—when advice of counsel is no defense. If a criminal prosecution is instituted for the mere purpose of coercing one into the payment of a debt or the surrender of some right claimed, and not in the cause of public justice, the fact that the one instituting suqh prosecution procures the advice of counsel will not shield him from the consequences of his wrongful act.</p> <p>4. Malicious prosecution, § 83*—when probable cause question for jury. The question of the presence or absence of probable cause, in an action for malicious prosecution, is a question of fact for the jury, notwithstanding the fact an examining magistrate had found plaintiff probably guilty of the charge against him and had bound him over to the grand jury.</p>

<p>Abstract of the Decision.</p> <p>L Negligence, § 213*—when instruction not misleading. An Instruction, in an action against two defendants to recover damages for personal injuries, that one defendant had rested his case at the close of plaintiff’s evidence and that in considering a verdict the jury should not take into consideration any evidence introduced by the other defendant but must only consider such evidence as was introduced by the plaintiff, held to lay down a correct statement of the law as to the first defendant, and in view of all the instructions given not misleading as to the other defendant, although ambiguous in itself.</p> <p>2. Negligence, § 222*—when instructions are not conflicting. An instruction in a negligence case that the court did not" presume to tell the jury what facts were established by the evidence, that being a matter which was their sole province, did not conflict with an instruction that, there being no evidence of any negligence of defendant before a certain point, the jury were only called upon to decide whether the facts following that point, as shown by the evidence, established negligence, or with an instruction putting the subject-matter of the latter instruction in another form, defining the law as applied to the situation therein presented.</p> <p>3. Carriers, § 484*—when instruction on care required to guard against injuries to passengers is proper. An instruction “that it is the duty of common carriers to do all that human care, vigilance and foresight can reasonably do, in view of the character and mode of conveyance adopted, and consistently with the practical operation of the road, reasonably to guard against accidents and consequential injuries to their passengers, and if they neglect to do so, they are to be held strictly responsible for all consequences which directly flow from such neglect; while the carrier is not an insurer of the absolute safety of the passenger, it does, however, in legal contemplation, undertake to exercise the highest degree of practicable care to secure the safety of the passenger and is responsible for the slightest neglect to exercise such care directly resulting in injury to the passenger, if the passenger is, before and at the time of the injury, exercising ordinary care for his or her own safety,” held to be proper.</p> <p>4. Instructions, § 88*—determination of preponderance of evidence. An instruction that in: determining the preponderance of evidence the jury are not to consider alone the number of witnesses for the respective parties, is proper.</p> <p>5. Cabbiebs, § 456*—what is immaterial variance in action hy passenger for personal injuries. Where a declaration, in an action by a passenger against a street railroad for personal injuries sustained in a collision with a wagon, alleged and the proof showed that the accident occurred at a certain point where the railroad crossed a certain street, it was immaterial that the declaration and the proof differed as to the location of the point as between certain other streets.</p> <p>6. Cabbiebs, § 476*—when negligence of motorman shown. In an action by a passenger against a street railroad for personal injuries, evidence held to sustain the finding that defendant street railroad’s motorman was negligent in the operation of its street car after he became aware of the danger presented by the actions of the horse of another defendant, at such a time as to enable him to avoid the collision of the car with the wagon.</p>

<p>1. ¡Limitation of actions, § 74*—when amendment to declaration does not set up new cause of action. A declaration in an action at common law to recover damages for personal injuries, brought by an employee of a construction company against an elevated railroad, held to set up a good cause of action, although it made no reference to the Workmen’s Compensation Act and did not contain an allegation to the effect that the defendant had elected not to be bound by the act, and an amended declaration adding such an allegation to those contained in the original declaration does not set up a new cause of action subject to the bar of the statute of limitations.</p> <p>2. Railroads, § 578*—when evidence as to manner of running elevated trains is immaterial. In an action by an employee of a construction company against an elevated railroad company for personal injuries, certain train sheets and other testimony offered to show that on the only night the plaintiff had worked on the certain job as an employee of the construction company at work on defendant’s elevated railroad tracks previous to the occasion of his injury, defendant’s trains were running on the west track where the work was being done at 11 o’clock at night, were properly excluded as immaterial, where defendant’s superintendent had notified the superintendent of plaintiff’s employer that the west track would be dead at 11 o’clock on the night in question.</p> <p>3. Railroads, § 582*—-when negligence in operation of elevated train shown. Evidence held to warrant the finding that defendant was negligent in the operation of its elevated railroad train which caused injury to plaintiff, an employee of a construction company.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.</p>

<p>1. Trial, $ 191*—when direction of verdict for plaintiff proper. A trial court may properly direct a verdict for plaintiffs upon a definite offer by defendant of proof which the court, on motion, excludes.</p> <p>2. Pleading, § 431*—when exclusion of evidence proper. Evidence offered by a defendant as to matters without his affidavit of merits is properly excluded.</p> <p>3. Appeal and error, § 433*—what point may not he first raised on review. The point that plaintiffs’ affidavit of claim was not sworn to cannot be raised first on review.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>L Appeal and ebbob, § 1411*—when verdict based on conflicting evidence not disturbed. Where the evidence is conflicting and that of the plaintiff when taken alone is sufficient to support the verdict, the verdict will not be set aside and the judgment reversed although the testimony of the plaintiff may be the only evidence supporting the verdict, and there may be the testimony of several witnesses contradicting that of the plaintiff, except where a careful examination of the record leads to the conclusion that the verdict and judgment are clearly against the manifest weight of the evidence.</p> <p>2. Evidence, § 475*—when preponderance of is with defendant. The preponderance of the evidence held to be clearly against the plaintiff and in favor of the defendant, where plaintiff was the only witness in her behalf and her testimony was unconvincing and uncorroborated, and the testimony on behalf of the defendant was clear and convincing and uncoritradictory.</p> <p>3. Damages, § 240*—when verdict is based upon sympathy of jury. Where plaintiff alleged damages for injuries, claimed to have been caused by defendant’s negligence, at $5,000, and the injuries were severe and painful and such as to entitle her to substantial damages, and plaintiff was a woman 50 years of age, practically alone in the world, and dependent upon herself for a living, and the • preponderance of the evidence was clearly against her and in favor of defendant, held that a verdict of $500 indicated that the jury were moved to find in her favor and give such damages because of sympathy for her.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windbs, Judge, presiding.</p>

<p>1. Appeal and error, § 1725*—when opinion binding upon subsequent review. The opinion of a court of review becomes the law of the case, binding alike upon the lower court upon a retrial and upon the reviewing court upon a subsequent review.</p> <p>2. Carriers, § 476*—when ownership of railroad shown. Evidence held sufficient to sustain a finding that defendant owned the railroad at the time plaintiff, a cattle shipper, was injured as the result of being brushed off a cattle car, on which he was riding, by a bridge.</p> <p>3. Evidence, § 480*—what is effect of failure of defendant to produce. The failure of a defendant to produce evidence known to be in his control, and to be material ’and affecting the defense, may he considered by the jury in "determining the rights o-f the parties.</p> <p>4. Instructions, § 151*—when properly refused. It is not error to refuse an instruction substantially covered in given instructions.</p> <p>5. Carriers, § 482*—when instruction improper as assuming engine is safe place in which to ride.In an action to recover for personal injuries sustained by a cattle shipper who had been invited to ride in one of defendant’s trains, as the result of being brushed off a cattle car when it passed under a bridge, an instruction assuming that an engine is a safe place in which to ride is improper.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 475*.—what evidence is inadmissible as part of res gestee in action for injuries to passenger alighting from street car. In an action by a passenger against a street railroad, to recover damages for personal injuries, a conversation concerning plaintiff’s injuries between herself and a sympathetic woman after the accident and after plaintiff had been put back on the car from which she fell while alighting, and the order of the conductor to the woman to “move on,” were inadmissible because constituting no part of the res gestee.</p> <p>2. Evidence, § 76*—when act or declaration part of res gesta. An act or declaration can ■ only he considered as a part of the res gesta when it illustrates, explains or interprets other parts of the transactions, of which it is itself a part.</p> <p>3. Evidence, § 444*—when physician must base opinion upoñ objective symptoms. A physician who has treated an injured person, but 3 years later makes an examination for the purpose of qualifying as an expert to testify as to the then condition of the patient, must base his opinion upon objective, not subjective, symptoms.</p> <p>4. Evidence, § 444*—when physician may not testify as to subjective symptoms. A physician who has not treated an injured person and makes an examination for the sole purpose of qualifying as a witness to the person’s injuries may not testify as to subjective symptoms.</p> <p>5. Instructions, § 88*—what is an essential of instruction on preponderance of evidence. An instruction on the preponderance of evidence in an action for personal injuries must have in it the element of the number of witnesses testifying on each side.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 104*—when negligence of driver of automobile colliding with street car not imputed to passenger. The negligence of the driver of an automobile, with which a street car collides, cannot be attributed to a passenger in the automobile.</p> <p>2. Street railroads, § 91*—when passenger in automobile colliding with street car fails to exercise due care. A passenger -in an automobile, with which a street car collides, cannot sit inactive when danger is imminent and be regarded as having exercised due care for his own safety.</p> <p>3. Street railroads, § 131*—when lack of due care to prevent collision of street car and automobile by passenger of automobile shown. Evidence held sufficient to sustain a finding that plaintiff, a passenger in an automobile, with which one of defendant’s street cars collided, did not exercise any care or do anything when the danger was imminent and obvious to him to prevent the accident.</p> <p>4. Stbebt railroads, § 131*—when collision between automdbile and street car shown to be due to recklessness of driver of automobile. Evidence held sufficient to sustain a finding that the collision of defendant’s street car with the automobile in which plaintiff was riding as a passenger was not due to the negligence of defendant and that the collision resulted from the reckless conduct of the driver of the automobile in attempting to cross the street car tracks in front of the approaching street car, which the motorman, by the suddenness of the driver’s action, was unable to stop in time to prevent a collision.</p> <p>5. Street railroads, § 140?—when instruction on liability of street railroad for negligent injuries to passenger in automobile due to collision is proper. In an action by a passenger in an automobile against a street railroad to recover for personal injuries due to the collision of one of defendant’s street cars with the automobile, an instruction, that even though the jury believed from the evidence that the driver of the automobile in which plaintiff was riding was guilty of negligence, that fact alone would not relieve defendant from liability if the jury believed from a preponderance of the evidence that defendant was negligent and plaintiff was free from negligence, was proper.</p> <p>6. Instructions, § 151*—when properly refused. An instruction adequately covered by given instructions is properly refused.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 75*—when motion to open judgment by confession is insufficient. A motion to open a judgment by confession to be let in to plead, not upon the merits but to “plead, answer or demur to the declaration,” is insufficient, and will not be entertained.</p> <p>2. Appeal and ebeoe, § 2*—what is not an appeal. An appeal prayed but not perfected is not an appeal.</p> <p>3. Judgment, § 422*—when denial of motion to open up judgment by confession creates estoppel. The denial of a motion to open up a judgment by confession from which an appeal is prayed and allowed, but not perfected, works an estoppel when the matter decided is again raised by an appeal taken from an order denying a renewed motion to open up the judgment.</p> <p>4. Appeal and ebbob, § 267*—when ruling appealable. A ruling upon a motion which is final is appealable.</p>

<p>1. Appeal and ebbob, § 760*—what not part of statutory record. Affidavits read upon the hearing of a motion to open up a judgment by confession have no place in the statutory record, but belong in the bill of exceptions.</p> <p>2. Appeal and ebbob, § 1330*—when assumed that ruling on motion to vacate judgment by confession was correct. Where a bill of exceptions has been stricken, affidavits in support of a motion to vacate a judgment by confession, which were in the abstract, instead of in the bill of exceptions, where they belonged, will not be reviewed, and it will be assumed that the ruling of the trial court on the motion was correct, and not, in the condition of the record, subject to challenge.</p> <p>3. Appeal and ebbob, § 1751*—when judgment affirmed for insufficiency of record. A judgment will be affirmed where the record is insufficient for the purpose of review of the question involved.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 805*—what reviewed in proceedings for reinstatement of expelled member of order. It is not the function of the courts to review the record of the proceedings and trials culminating in expulsion from an insurance order, on mandamus to compel restoration of a member to the order, but the question of jurisdiction of the order of petitioner and the right to expel him if the charges preferred are true will be determined.</p> <p>2. Insurance, § 802*—when jurisdiction in proceedings to expel member of order is shown. Jurisdiction over the subject-matter and of the person of a member of an insurance order, in proceedings by the order for the member’s expulsion, is shown where the member had notice of the charges preferred against him and was served with a copy of them, and it further appears that he had notice of the time set for hearing and his trial under the charges made; that he prosecuted two appeals from the order of expulsion and was both times defeated and that the charges made were of the nature and character which the rules and regulations of the society permitted.</p> <p>3. Insurance, § 805*—conclusiveness of determination that member of trial board of order is competent to serve. It is for an insurance order, and not, for the courts in mandamus proceedings to compel restoration of a member to the order, to determine whether a member of the trial board of the order was competent to serve.</p> <p>4. Insurance, § 805*—when action of trial board in expelling member is not reviewed. The courts will not review the action of the trial board of an insurance order in expelling a member where it had jurisdiction of the subject-matter and of the member.</p> <p>5. Mandamus, § 6*—what must be shown to warrant issue of writ of. No intendments are to be indulged regarding the right of a party to a writ of mandamus. One who seeks this extraordinary remedy must by averment and proof show unqualifiedly a right to the writ.</p> <p>6. Insurance, § 807*—what is not ground for compelling reinstatement of member of order. Mere informality in proceedings of an insurance order for the expulsion of a member is insufficient to authorize the awarding of a writ of mandamus to compel restoration of the member to the order.</p> <p>7. Insurance, § 807*—when mandamus not issued to reinstate member of order. Expulsion of a member of an insurance order will not justify interference by mandamus for reinstatement where it appears from the record that there were just grounds for such action, and that the petitioner had been acting in hostility to the corporation and that he seeks restoration in order to continue such conduct of hostility.</p> <p>8. Insurance—when order has right to discipline member by expulsion. An insurance order has the right to discipline a member by expulsion, although he has a financial interest as an insured member, of the benefit of which expulsion from the order would deprive him.</p> <p>9. Insurance, § 805*—when act of order in expulsion of member is conclusive. Where an insurance order acts in disciplining members in conformity to its charter and within the powers of its rules and regulations, and the proceedings are not irregular, action of expulsion is conclusive and cannot be inquired into collaterally ■ by mandamus or any other proceeding, and the society in such case acts judicially and its sentence is conclusive, like that of any other judicial tribunal where there is no provision for review.</p> <p>10. Insurance, § 807*—what is nature of proceedings in court by member of order to compel reinstatement. When an expelled member of an insurance order resorts /to the courts to compel reinstatement, he does not appeal from the judgment of expulsion, as courts have no appellate jurisdiction in such cases.</p> <p>11. Insurance, § 805*—what questions are for decision of court in proceedings, to compel reinstatement of expelled member of order. All that the courts, in proceedings by mandamus to compel reinstatement of a member of an insurance order, can be asked to decide is whether the charge against the member is sufficient under the powers of the society and whether the necessary steps for his expulsion were regularly taken after notice and an opportunity to he heard accorded.</p>

<p>Municipal Court of Chicago, § 39*—when judgment affirmed and appeal not dismissed in prosecution for violation of city ordinance. A judgment of conviction in the Municipal Court of Chicago for violation of an ordinance will be affirmed and the appeal not dismissed, under Rév. St. ch. 110, sec. 100 (J. & A. If 8637), relating to affirmance of judgments for failure to file copies of judgments, orders or decrees appealed from within the specified time by the Appellate Court, or dismissal of the appeal, when it appears that violators of ordinances have, on conviction, been in the habit of praying an appeal without any intention of perfecting it and bringing the record to the Appellate Court for review, and with the intention, when the appeal is. dismissed, of suing out a writ of error to review the judgment, thus multiplying judicial procedure, and the defendant had perfected his appeal but had failed to bring the record to the Appellate Court in time for review.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John K. Prindiviule, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Prank H. Graham, Judge, presiding.</p>

<p>1. Building restrictions and regulations, § 1*—when violation of will be enjoined. A court of chancery will, at the suit of an abutting property owner, enjoin the violation of an ordinance against the erection of a building not complying with the building regulations, where the erection of such a building would amount to a nuisance per se and would result in irreparable damage to complainant and increase the fire risk.</p> <p>2. Nuisance, § 10*—when wooden building is. A wooden building is not in itself a nuisance, but when erected in a place prohibited by law and where it endangers the safety of adjoining property, it may become a nuisance.</p> <p>3. Building restrictions and regulations, § 1*—when ordinance unreasonable. An ordinance which prohibits the erection of any buildings within certain fire limits “unless the outside and party walls thereof shall be composed of brick, stone, iron or other incombustible, material * * * without the permission of the city council first obtained,” gives the city council, in its discretion, power to issue a permit, and is unreasonable.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>Abstract of the Decision.</p> <p>1. Negligence, § 213*—when instruction on liability of one defendant for negligence of another not misleading. In an action against a railroad company and a car loading and unloading association to recover for the death of a teamster employed by another, due to a heavy roll of paper falling off a truck which the association was using to convey the paper through the door of the railroad warehouse to deceased, and striking him, an instruction that the jury could not hold one defendant liable for the negligence of the other, and that they could not find both defendants guilty on evidence which showed the guilt of but one defendant, was not misleading.</p> <p>2. Negligence, § 207*—when instruction on care required of railroad as to floor of warehouse not erroneous. In an action against a railroad company owning a warehouse and a car loading and unloading association to recover for the death of a teamster employed by another, due to a heavy roll of paper falling off the truck which the association was using to convey the paper through the door of the warehouse to deliver to deceased, because of defects in the floor of the warehouse, an instruction that the railroad company was not required to furnish a floor in an absolutely perfect condition, but if the jury believed from the evidence that the floor was of such ordinary character as reasonably prudent persons in the exercise of ordinary care would maintain for such purpose, then the railroad company should be found not guilty, held not to be improper.</p> <p>3. Appeal and ebbob, § 1544*—when instruction on negligence in care of floor of railroad warehouse not reversibly erroneous. In an action tq recover for the death of a teamster alleged to be due to the fall of a heavy roll of paper from a truck which a car loading and unloading association was using to deliver the paper to deceased from the railroad freight warehouse, because of a defect in the floor of the warehouse, an instruction that if the jury believed from the evidence that the floor was in such condition that by the use of ordinary care the paper roll in question would have been safely trucked over it the railroad company was not liable, held to be erroneous, but not reversibly so, in view of all the instructions and the simplicity of the facts in the case.</p> <p>4. Negligence, § 205*—when instruction on required proof of negligence of railroad as to defects in warehouse not erroneous. In an action to recover for the death of a teamster alleged to be due to the fall of a heavy roll of paper from a truck which defendant car loading and unloading association was using to deliver the paper to deceased from the defendant railroad’s freight house, because of a defect in the floor of the freight house, an instruction setting out the substance of the first count in the declaration and telling the jury that plaintiff must prove such charge by a preponderance of the evidence to recover thereunder, held not erroneous on the ground that the declaration averred that defendant railroad company “permitted divers holes and openings to be and remain” in the floor, but the proof of one hole, if it contributed to the injury, was sufficient.</p> <p>5. Instructions, § 87*—when instruction on preponderance of evidence in action for negligent death not erroneous. In an action for negligent death, an instruction that plaintiff, to recover, must establish her case by a preponderance of the evidence, .that if the evidence was equally balanced or if the jury were in doubt or unable to say on which side the preponderance of the evidence lay, or if the preponderance was against the plaintiff, the verdict should be not guilty, was not misleading on the ground that it did not restrict the evidence to the issues essential to the maintenance of the action, nor point out the issues necessary to be established by a preponderance of the evidence to entitle the plaintiff to recover, the jury being specifically advised that all the instructions must be considered as a whole and that they should apply them to the facts and not detach or separate one instruction from any of the others.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomerot, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.</p>

<p>1. Appeal and error, § 897*—when transcript erf record is sufficient. A transcript attached to the record of a case is sufficient and is not open to the objection that the certificate attached to the transcript does not certify that it embraces all of the evidence, where at the close of the transcript is á certificate of the trial judge “that the foregoing is a correct statement of the facts appearing upon the trial of the case and all questions of law involved in said case and the decisions of the court upon all such questions of law,” and, at the close of the testimony, as it appears in the transcript, are the words, “which was all of the evidence received or offered on the trial of said cause.”</p> <p>2. Attachment, § 246*—when error in admission of evidence as to conveyance of real estate is immaterial. In an action of attachment it is immaterial whether there was error in the admission of evidence relating to a deed whereby defendant conveyed some real estate, where the affidavit for attachment set forth two grounds of attachment and alleged not only that defendant had fraudulently concealed and disposed of his property so as to hinder and delay his creditors, but also that he was, “about to fraudulently conceal, assign, and fraudulently dispose of his property and effects for the purpose of hindering his creditors.”</p> <p>3. Trial, § 85*—when admission of evidence after presentation of motion for directed verdict is not error. It lies within the sound discretion of the trial court, after the defendant in an attachment action has presented a motion to instruct the jury to find. the issues in his favor on the attachment issue, to permit trie plaintiff to resume the stand, for the purpose of giving further testimony as to representations which the defendant had made to her and on which her affidavit was based.</p> <p>4. Appeal and error—when error in permitting admission of evidence after presentation of motion for directed verdict is immaterial. It is immaterial whether or not the trial court erred in permitting the plaintiff in an attachment action, after a motion by defendant for a directed verdict, to resume the stand for the purpose of giving further testimony as to representations made by defendant and forming the basis of plaintiff’s affidavit, where there is already before the court sufficient evidence to warrant denial of the motion.</p> <p>5. Attachment, § 46*—what is sufficient ground for. A statement by a debtor that if the creditor waits he will be paid, but, if not, the debtor will convey all his property so that the creditor cannot collect any thing,. furnishes a sufficient cause for the issuance of an attachment on the ground that the debtor is “about to fraudulently conceal, assign, and fraudulently dispose of his property and effects for "the purpose of hindering his creditors.”</p> <p>6. Attachment—what is proof of intention to convey property in fraud of rights of creditors. The fact that a debtor has more - than enough cash to his credit in a bank to satisfy the claim of a particular creditor is not proof of his intention not to convey his real estate as he threatened to do.</p> <p>7. Instructions, § 19*—when bad because argumentative in form. In an action of attachment, based upon the fraud of defendant, an instruction that it was the duty of the plaintiff, if the false representations were made, upon discovery thereof, to have immediately taken action and disaffirmed the agreement between the parties within a reasonable time, and not to have permitted the defendant to go on after such discovery, if it was found that she did so permit him, and act in accordance with her investment, and that a person to whom fraudulent representations have been made must act promptly after the discovery of the falsity of the representations and not experiment and wait to see whether.a loss will be sustained before electing what to do, was bad in form, being argumentative.</p> <p>8. Instructions, § 118*—when instruction is improper as inapplicable to evidence. In an action of attachment, based upon 'fraud, an instruction as to the necessity of the plaintiff acting promptly after discovery of the false representations and not sleeping on his rights was improper, as being inapplicable to the evidence, 11 where plaintiff commenced suit within two days after discovery of the fraud.</p>

<p>Abstract of the Decision.</p> <p>Bnxs and notes, § BO*—what constitutes promissory note based upon sufficient consideration. A paper signed by a student in a school for advertising, subscribing for and acknowledging the receipt of a scholarship in the school and promising to pay to a certain person, the president of the school, a certain sum according to certain payments, and specifying the character of the instruction, was a promissory note, based upon sufficient consideration.</p>

<p>1. Pleading, § BO*—what are proper allegations in declaration in case of joint and several liability. In a case of joint and several liability, the one in whose favor the liability exists may sue all who are thus liable or any one of the number, and, in case an action is brought against some one of those who are thus liable, the declaration may contain such allegations as would be proper in case the defendant were the only one liable.</p> <p>2. Corporations, § 258*—when directors may employ attorneys and, stenographer in suit by minority stockholders against majority stockholders and corporation. Where legal proceedings are instituted by minority interests in a corporation against the corporation itself and the majority interests, it is within the contemplated powers of the board of directors of the corporation to authorize the employment of counsel and any other employment incident to an adequate representation of the alleged interests of the majority stockholders in the litigation, including the employment of a stenographer to take down the court proceedings, and a recovery may be had for such services from the corporation, even though the majority interests are charged with fraud, unless it be shown that the one employed was in some way a party to the alleged fraud, or at least had notice of it.</p>

<p>1. Municipal Coubt of Chicago, § 26*—inapplicability of statute as to certification of stenographer’s report to records on appeal. Section 23 of the Municipal Court Act, subd. 6 (J. & A. ¶ 3335), which directs the original stenographer’s report to he certified to the Supreme Court or Appellate Court, as the case may be, “as the record to he considered upon the review of the judgment by writ of error,” does not apply to records on appeal.</p> <p>2. Appeal and bbbob, § 897*—what courts of review act upon. Courts of review act upon the transcript of the record and not upon the record itself, except that an original bill of exceptions may be incorporated in the transcript by agreement.</p> <p>3. Municipal Coubt of Chicago, § 26*—when stenographic report stricken from record and ordered returned to Municipal Court. Where a stenographic report of proceedings at a trial is incorporated without warrant of law in the transcript of record in an appeal case, it will be stricken from the files and the clerk of the Appellate Court directed to detach it from the transcript and return it to the Municipal Court, where it belongs.</p> <p>4. Appeal and ebboe, § 200*—ichen constitutional question not involved. A motion to strike from the files a stenographic report of the proceedings at a trial because it was incorporated without warrant of law in a transcript of record filed on an appeal from the Municipal Court of Chicago does not necessarily involve the validity of section 23 of the Municipal Court Act (J. & A. ¶ 3335), which directs the original report to be certified to the Supremp Court or Appellate Court, as the case may he, as the record to be considered upon the review of the judgment by writ of error, since such motion presents a question merely affecting proceedings in the Appellate Court, and cannot arise, until the case reaches it.</p> <p>5. Municipal Coubt of Chicago, § 26*—what is effect of striking stenographic report. Assignments of error based upon a stricken stenographic report are eliminated.</p> <p>6. Set-off and becoupment—when separate judgments on plaintiff’s claim and on set-off are proper. Where a set-off is interposed in an action there may be two judgments^ one on plaintiff’s claim and one on defendant’s claim of set-off, under section 55 of the Practice Act (J. & A. ¶ 8592).</p> <p>7. Municipal Court of Chicago, § 29*—presumption that statute authorizing two judgments on same demand where set-off interposed governs. Section 55 of the Practice Act (J. & A. 8592), authorizing two judgments on one demand, where a plea of set-off is interposed, in the absence of a contrary rule, is presumed to control in the Municipal Court of Chicago.</p> <p>8. Set-off and recoupment, § 2*—set-off as recognized method of defense. A set-off is a recognized method of defense.</p> <p>9. Municipal Court of Chicago, § 19*—what does not constitute adjudication tarring judgment on set-off. In an action in the Municipal Court of Chicago in which the defense of set-off is interposed, the entry first of a judgment for plaintiff on his claim is not an adjudication barring the right of a second judgment on the set-off.</p>

<p>1. Cabbiebs, § Í14*—when flood is proximate cause of injury to tobacco. The proximate cause of the loss of tobacco in the hands of a terminal carrier was due to an act of God, a flood, where the flood was one that could not have reasonably been anticipated, it having covered the railroad yards, which had not happened in previous floods, and any efforts to avoid loss would have been unavailing after the disaster could have been foreseen, even though there was a delay by an intermediate carrier in transferring the car from the tracks of the initial carrier to the terminal carrier and by the terminal carrier in reaching the place where the accident occurred, owing to washouts.</p> <p>2. Cabbiebs, § 30*—what law governs liability of terminal carrier for loss of interstate shipment of goods. The liability of a terminal carrier for the negligent loss- of an interstate shipment of goods is governed by the federal rules.</p> <p>3. Cabbiebs, § 30*—what is effect of Carmack Amendment to Interstate Commerce Act. Since the passage of the Carmack Amendment to the Interstate Commerce Act the special regulations and policies of particular States upon the subject of, a carrier’s liability for loss or damage to interstate shipments, and the contracts of carriers with respect thereto, have been superseded.</p> <p>4. Cabbiebs, § 114*—when terminal carrier excused from liability for loss of goods by flood. Where the uniform bill of lading for an interstate shipment of tobacco provides that “no carrier or party in possession of any of the property herein described shall be liable for any loss thereof, or damage hereto or delay caused by the act of God,” and the proximate cause of damage to the tobacco in the hands of the terminal carrier is an act of God, an unprecedented flood in the company’s yards, the carrier is excused from liability even though its own negligence or delay may have contributed to the loss or .damage as a remote cause thereof.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.</p>

<p>Error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Conspiracy, § 43*—when indictment need not specify persons or property. Where the object of a conspiracy is general, it is not necessary that an indictment therefor specify the persons or property at which it is aimed'.</p> <p>2. Conspiracy, § 43*—when failure to specify in indictment persons or property at which intended injury is aimed is not ground for reversal. Where, in a prosecution under Rev. St. ch. 38, par. 54h (J. & A. jf 3640), for conspiracy to procure dynamite with intent to use it for unlawful injury to and- unlawful destruction of property, there is evidence that,' while the conspiracy was primarily directed against the property of a certain corporation, the plan necessarily involved injury to the property of others in the neighborhood, and that acts in pursuance thereof did injure, or would, if consummated, have injured, such other property, failure to specify in the indictment the particular person or property at which the intended injury was aimed is not ground for reversal.</p> <p>3. Conspiracy, § 35*—when indictment in language of statute is sufficient. An indictment for conspiracy to procure dynamite with intent 'to use it for unlawful injury to and destruction of property, in violation of Rev. St. ch. 38, par. 54h (J. & A. jf 3640), is sufficient where it follows the language of the statute, even though the person and property intended to be injured are not specified.</p> <p>4. Conspiracy, § 21*—merger of conspiracy to commit felony in felony. The doctriné that a conspiracy to commit a felony is merged in the felony, where the evidence shows that a felony was committed, is practically abrogated in Illinois.</p> <p>5. Conspibacy, § 47*—what does not constitute variance between indictment and ■ proof. The fact that the indictment for a conspiracy to procure dynamite with the intent to use it for the unlawful injury of property does not specify' the person whose property was to be injured, while the evidence showed that the object of the conspiracy was the injury of the property of a certain corporation, does not constitute a variance where the evidence shows that the plan' pursued would naturally, and did, result in injury to the property of others in the neighborhood of the corporation’s property.</p> <p>6. Conspiracy—what constitutes to procure dynamite to use for unlawful purposes. On an indictment for a conspiracy to “procure” dynamite to use for the unlawful injury of property, even though the evidence shows that one of the defendants took the initiative without the knowledge of the others and stole and hid the dynamite, still if they acted in concert under a plan to go and get it from the hiding place for the purpose of making the unlawful use, there was a conspiracy to “procure.”</p> <p>7. Criminal law,- § 156a*—when refusal to admit entire confession of codefendant is not error. Where, on an indictment for conspiracy, the prosecution introduces in evidence confessions made by the defendants only so far as each confession affects the defendant making it, and, on cross-examination, defendants’ counsel ask for the entire statement, expressly stating to the court, however, that if the answer evokes anything implicating other defendants than the one making the confession they will move to strike the entire statement from the record, and- no purpose or effort to learn whether the rest of the statement will benefit the defendants is disclosed, a refusal to admit the entire statement is not error.</p> <p>8. Criminal law, § 494*—when defendant may not complain of failure to read portion of instruction to jury. Where the trial court, after reading so much of one of defendant’s instructions as it had intended to give, by mistake handed the entire instruction to the jury without striking out the part which it did not intend to give, the defendant cannot complain, on a writ of error, that the latter part was not read to the jury.</p> <p>9. Criminal law—when not error to include imprisonment in penitentiary in instruction as to different forms of punishment. On a criminal prosecution, it is not error to include imprisonment in the penitentiary in the instruction as to the different forms of punishment which may be prescribed in the verdict, even though defendant testified at one time that he was 24 years of age and at another that he was 25, where he subsequently repudiated these statements by saying that he did not know his age and admitted previously giving a written statement showing that he was more than 25.</p> <p>10. Criminal law, § 297*—when not error to fail to instruct as to involuntary confession. On a criminal prosecution in which a confession is introduced in evidence, it is not error to fail to instruct as to the effect of an involuntary confession where there is nothing in the evidence tending to show that the confession was not voluntary, but defendant merely denies that it was made at alL</p>

<p>1. Automobiles and garages, § 3*—when evidence supports verdict for plaintiff in action for injuries due to automobile. In an action to recover for personal injuries received by plaintiff by being struck by defendant’s automobile as he "was alighting from a street car, evidence held sufficient to support a verdict for plaintiff.</p> <p>2. Automobiles and garages, § 3*—when instruction on liability of operator passing street car stationary for purpose of discharging passengers is erroneous. In an action to recover for personal injuries received through plaintiff being struck by defendant’s automobile as he was alighting from a street car, where it appeared that the point at which the street car stopped was not' a usual stopping place, but one at which it was prohibited by city ordinance from stopping, and that when the car stopped, defendant’s automobile, which had been running beside the car, was then passing it, it is error to instruct that if the jury believe that defendant violated, in the manner charged, the ordinance prohibiting persons operating vehicles to permit the vehicle to pass or approach within 10 feet of a street car which has stopped to take on or discharge passengers as long as the car is stopped for that purpose, and that he was negligent in so doing, and that such violation was the proximate cause of the accident and plaintiff</p> <p>was In the exercise of ordinary care, etc., they should find defendant guilty.</p> <p>3. Automobiles and garages, § 3*—when instruction on proper speed of automobiles is improper as not in conformity with declaration. In an action to recover for personal injuries received through being struck by an automobile, where the declaration does not allege that the car was being operated at any particular rate of speed or that it was being propelled at an unreasonable or improper rate, but merely contains a general allegation of negligence on defendant’s part in failing to look ahead and keep his car under control, it is improper to give an instruction based on the Motor Vehicle Act, Rev. St. ch. 121 (J. & A. 10001 et seg.), relating to the speed at which motor vehicles may be operated on public highways.</p> <p>4. Appeal and error, § 1084*—when assignment of cross errors by plaintiff against defendant found not guilty is erroneous. Where, in an action against a street railway company and the owner of a motor vehicle to recover for personal injuries received through being struck by one of defendant’s motor vehicles in alighting from the other defendant’s car, there is a judgment finding the street railway company not guilty and the motor vehicle owner guilty, from which judgment the motor vehicle owner appeals, the plaintiff cannot, upon such appeal, assign cross errors upon the judgment finding the street railway company not guilty.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 683*—when not shown that injury to employee due to fall from window while attempting to place wheel on machine table. In an action by an employee to recover for personal injuries due to a fall out of a window in defendant’s plant, the evidence was insufficient to warrant a finding that plaintiff fell out of the window while in the act of lifting a wagon wheel to place it on the table of the machine he was operating, where plaintiff’s evidence was vague and indefinite, and, in light of the surrounding circumstances, incredible, it appearing that the sill of the window was 12 inches wide; that a rivet bin 18 inches wide was located immediately in front of the window and on a level with the sill; that the machine on which plaintiff was working was,4 or 5 feet from the window; and the testimony of other witnesses tended to show that he fell out after he had opened the window and.was attempting to get some air.</p> <p>2. Master and servant, § 126*—when employer not required to guard factory window. An employer is not required, under Rev. St. eh. 48, sec. 1 (J. & A. 1T 5386), relating to the guarding of dangerous places in factories and workshops, to guard a window in a wagon factory which is located 4 or 5 feet from an operator, the sill of which is 12 inches wide and 33 inches from the floor, especially where a bin for rivets about 18 inches extends across the full width of the window and the top of it is on the level with the sill.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 6*-—when ordinance as to passing street cars wrongfully excluded in action for injury to automobile by another automobile. A city ordinance prohibiting vehicles from passing or approaching within 10 feet of a street car stopped for the purpose of discharging or taking on passengers is wrongfully excluded, in an action to recover for injury to plaintiff’s automobile as the result of a collision with defendant’s automobile at a street intersection, where it appeared that plaintiff was going in the same direction as a street car which stopped on the near side of the intersecting street, and defendant’s car, which was traveling on the intersecting street, collided with plaintiff’s car after the street car, which had started up again, had stopped to let defendant’s automobile cross, even though there is a conflict in the evidence as to whether or not plaintiff’s automobile came to a stop upon overtaking the street car at the intersecting street.</p> <p>2. Appeal and error, § 452*—when objection as to admission of ordinance is too late. An objection as to the admission of a city ordinance, in a negligence action, comes too late where made for the first time on appeal.</p> <p>3. Trial, § 91*—-what is purpose of specific objection to evidence. The purpose of a specific objection to evidence in the trial court is to enable the other party to meet it.</p> <p>4. Appeal and error, § 551*—non-necessity of exceptions to rulings. Under section 81 of the Practice Act (J. & A. If 8618), the necessity of excepting to all adverse rulings of the trial court is dispensed with.</p>

<p>Abstract of the Decision.</p> <p>1. Mechanics’ liens, § 135*—when waivers of liens and receipts given by unpaid contractors and subcontractors to owner are based upon sufficient consideration. Where a trust deed is given to the vendor of land to secure the balance of the purchase price and it is agreed that the premises should be improved by the erection of a building and that a loan not exceeding a certain per cent, of the cost of the improvements might be made and the loan secured by a trust deed which should be a first lien upon the premises, and an agreement is made that the proceeds of the loans should not be paid to the purchaser until the liens of contractors and subcontractors should be paid, waivers of liens and receipts furnished by unpaid contractors and subcontractors to the purchaser for the purpose of enabling him to obtain the proceeds of the mortgage loan are based on sufficient consideration.</p> <p>2. Mechanics’ liens, § 135*—when claimants estopped to claim lien superior to second mortgage to secure purchase price. Mechanic’s lien claimants who furnish fictitious receipts and waivers of lien to the owner to enable him to procure the proceeds of a trust fund which was to be used in improvements, and the amount of which was secured by a trust deed which was a first lien upon the premises, are estopped by their receipts and waivers from claiming a lien superior to that of the vendor under a second mortgage to secure the payment of the purchase price.</p> <p>3. Mechanics’ liens, § 135*—who entitled to benefit of waivers of liens. Waivers of liens which are addressed generally “to whom it may concern” are a representation to any one interested in the premises.</p> <p>4. Mechanics’ liens, § 135*—when contention that second mortgagee did not act upon fictitious waivers of liens is untenable. The contention that the holder of a second mortgage on premises, the first mortgage on which was given to secure a loan for improvements, did not act upon fictitious waivers of liens by contractors and materialmen given to the mortgagor to enable him to procure funds out of the loan, is untenable where the second mortgagee relied upon the trustee having charge of the funds to protect him and such trustee in acting upon these representations in fact acted for the second mortgagee.</p> <p>5. Mechanics’ liens, § 135*—when second mortgagee injured by procurement by mortgagor of false waivers of liens and receipts. A second mortgagee is injured by the procurement by the mortgagor of false waivers of liens and receipts from contractors and subcontractors for the purpose of obtaining proceeds of a loan to be used for improvements from a trustee holding such funds, where such procurement was in violation of an agreement between the mortgagor, mortgagee and such trustee that the funds should not be paid to the mortgagor until he had made advancements sufficient to take care of all claims of contractors and subcontractors that might imperil the lien of the second mortgagee, and it is immaterial that the liens of the claimants might be superior to the lien under the trust deed if the waivers had not been executed.</p> <p>6. ■ Mechanics’ liens, § 125*—when attach. A mechanic’s lien attaches from the time the contract is made. It attaches to the interest of those who make the contract, and to that of all those who authorize or knowingly permit such contract to be made.</p> <p>7. Tobeens Act—effect of Mechanics’ Liens Act upon as to filing and registering claims for liens. The Mechanics’ Liens Act of 1903 (J. & A. ¶ 7139 et seq.), although a later enactment than the Torrens Act, did not have the effect of operating to repeal sections 89, 90, 92 of the latter Act (J. & A. ¶¶ 2365, 2366, 2368), relating to the filing and registering of claims for mechanics’ liens.</p> <p>8. Mechanics’ liens, § 204*—when general payments applied on unsecured claims. Although a part of property against which it is sought to enforce mechanics’ liens has not been registered as required by sections 89, 90, 92 of the Torrens Act (J. & A. ¶¶ 2365, 2366, 2368), a court of equity, will apply general payments which have been made on account of all the claims to the unsecured portion thereof.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 387*—when unavoidable delay in installation of shafting in plant is shown. In an action on a contract for the sale and installation of shafting in defendant’s plant, evidence held sufficient to show that plaintiff was delayed eight days in completing the' work under the contract in not being able to get the specified goods from a certain manufacturer on account of an accident caused by the breaking down of the latter’s plant, and that plaintiff was delayed three days by the loss for such period of a car of shafting shipped by the manufacturer, and that each of .such delays was beyond the control of plaintiff.</p> <p>2. Sales, § 300*—when seller not in default under contract to install shafting. One who contracts to sell and install shafting in the plant of another is not in default where the time limit in the contract is extended for a valuable consideration, and, after the expiration of the time then limited but before the expiration of the number of days the seller was delayed, due to no fault of its own, the purchaser takes possession of the premises, the contract providing that the seller should not be liable for any “loss, damage or delay” caused by accidents or contingencies beyond its control.</p> <p>3.. Contbacts, § 300*—when seller of shafting not liadle for damages for time plant is idle. Where a contract for the sale and installation of shafting provides that the shafting shall be procured by the seller from a certain manufacturer and that the contract shall be finished by a certain time, but the time for completion is extended before work is commenced and the seller learns that the manufacturer will be delayed in the furnishing of materials because of a breakdown in his plant before the time is extended and does not notify the purchaser until after the time is extended, he is not liable for damages for the days the plant is idle due to such delay, especially where the purchaser gets notice from the manufacturer within a day or two after the seller receives notice.</p>

<p>Appeal from the Municipal Court of Chicagos the Hon. Harry Olson, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon: Samuel C. Stough, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 420*—What evidence inadmissible in action on note where no claim of offset is filed. In an action to recover a balance alleged to be due on a promissory note in which no claim of offset is filed, evidence of sums due by plaintiff to defendant on account of commissions and wages earned under alleged contracts between the parties made subsequently to the execution and delivery of the note, and the subject-matter of which was in no way connected with the note, is inadmissible.</p> <p>2. Set-off and becottpment, § 17*—what inadmissible by way of recoupment. In an action to recover a balance alleged to be due on a promissory note, items arising out of matters unconnected with the execution and delivery of the note are inadmissible by way of recoupment.</p>

<p>1. Mortgages, § 477*—when history of partnership need not be set forth in bill for foreclosure. Where the recitations in an amended and supplemental bill in foreclosure against certain defendants as members of a syndicate or partnership alleged that such defendants, members of the original partnership, held the title and executed the notes and trust deed under a stated name and style, it is not necessary that they give in detail a history of the proceedings of the syndicate or partnership.</p> <p>2. Mortgages, § 477*—what is necessary to set forth in bill to foreclose. In a bill to foreclose, the elements which it is important to set forth are the notes, the trust deed, default and parties, and, even though an accounting is prayed, it is not necessary to anticipate the items and set them out in the pleading.</p> <p>3. Partnership, § 59*—right to adopt individual name of partner. A partnership may adopt the individual name of one of its members as the name under which it will do business.</p> <p>4. Partnership, § 133*—when members jointly and severally liable on trust deed and note. Where several individuals agree together that they will buy a certain piece of property, take title thereto in the name of one of their number for the benefit of all, subdivide the property and handle it on a prearranged plan for their mutual profit, and such agreement is carried out and notes and a trust deed for the purchase price are signed in the name agreed upon, the parties to the agreement constitute a partnership and are liable jointly - and severally on the deed and notes, even though the deed is under seal.</p> <p>5. Partnership, § 223*—when members may not claim as defense that notes and trust deed, are not signed by them. Where notes for the purchase price of realty and a trust deed securing them are signed by one member, of a partnership on behalf of the other members with their consent and they ratify his act, they cannot set up as a defense that the instruments were not signed by them and that the Statute of Frauds therefore relieves them.</p> <p>6. Partnership, § 246*—when parol .evidence admissible to show act of. Parol evidence is admissible to show that notes and a trust deed securing them, though signed in the name of an individual, were in fact the act of a partnership of which he is a member.</p> <p>7. Partnership, § 125*—when evidence shows ratification of execution and delivery of notes and trust deed by one subsequently becoming partner. In an action to hold certain persons liable as partners on notes and a trust deed executed by one of them, evidence held to show that the purchaser of the interest of one of the parties after the formation of the original agreement became a partner, participated in the transactions of the partnership and ratified the execution and delivery of the instruments.</p> <p>8. Witnesses—when evidence of partner as to conversations with deceased partner is admissible. Under J. & A. jf 5521, evidence of one of several partners of conversations had with a deceased partner in the presence of other partners is admissible against the executor of such deceased partner.</p> <p>9'. Bills and notes—when release of one obligor does not release co-obligors. An “indirect understanding’’ that a deficiency decree to be obtained in the future in a pending suit will not be “enforced or pushed” against one of the obligors of the notes and trust deed in suit is* not such a release as will release also his co-obligors.</p> <p>10. Partnership, § 133*—when members bound by act of member signing trust deed and notes for taxes, assessments and expenses of foreclosure. The provisions and terms of a trust deed, signed by one member of a partnership in his own name but for the partnership, rendering the. grantor of the deed liable for taxes, assessments, cost of foreclosure and solicitor’s fees, bind the members of the "partnership and are properly included in the decree on foreclosure.</p>

<p>1. Landlord and tenant, § 6*—when instrument deemed not to he lease. Where from the express phraseology of a written instrument it plainly appears that it was not the intention of the parties that it should operate as a lease, it will not be held to be such, even though it provides that immediate possession may be taken under it.</p> <p>2. Landlord and tenant, § 6*—when agreement relating to leasing of property deemed not to he lease. WThere an agreement relative to the leasing of property expressly provided for and contemplated the execution of a formal lease and the liability for rent thereunder was not to commence until a later date, the instrument will not be held to be a lease, in the absence of any evidence of estoppel or contrary contemporaneous construction by the parties, even though it provided for immediate possession of the premises.</p> <p>3. Landlord and tenant, § 94*—when tenancy from month to month arises. Where a tenant goes into possession and pays monthly rent under a parol lease which, though in violation of the Statute of Frauds, provides for the payment of a monthly rent, a tenancy from month to month arises.</p> <p>4. Landlord and tenant, § 89*—when tenancy from year, to year created. Where one goes into possession under a parol lease by which the reservation of rent is annual, a tenancy from year to year is created, even though the agreement provides for a payment of one-twelfth of the annual rental each month.</p> <p>5. Landlord and tenant, § 6*—how relations of parties determined where possession taken under agreement for lease. Where possession is taken under an agreement for a lease without any lease having been actually executed, the relations of the parties are to be determined by their parol understanding at that time and their subsequent conduct pursuant thereto, and the terms of such agreement will govern except so far as they conflict with the Statute of Frauds.</p> <p>6. Landlord and tenant, § 274a*—when tenant may not recover deposit. Where an agreement for a yearly lease provides for a deposit by the lessee on the execution of the lease to guarantee its performance which shall he used by the lessor in discharge of the last quarter of the first year term, and no lease is executed but the lessee enters and takes possession under a parol agreement for a yearly rental, the deposit cannot be recovered back by the lessee, but may be applied by the lessor towards the payment of a quarter of the rent, on a breach of the parol lease by the lessee.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Johit Richardson, Judge, presiding.</p>

<p>1. Automobiles and garages, § 3*—when evidence shows exercise of ordinary care by child struck by automobile ambulance. In an action to recover for the death of a 10-year-old boy who, while passing on a dark and murky night, in front of a street car which had stopped at a street crossing, was struck and killed by an automobile ambulance which passed on the wrong sidé of the car at a speed of 18 to 20 miles an hour, evidence held sufficient to warrant a finding that deceased was in the exercise of ordinary care for his safety.</p> <p>2. Automobiles and garages, § 2*—when fact that driver of automobile ambulance does not see pedestrian until too late does not relieve driver from liability. Where the evidence in an action to recover for the death of a 10-year-old boy struck by an automobile shows that the accident occurred on a dark and murky night as deceased was passing in front of a street car standing at a street crossing, and that the automobile approached on the wrong side of the car at a speed of 18 to 20 miles an hour, the fact that the driver of the ambulance did not see deceased until he was 2 feet from the ambulance does not relieve defendant from liability.</p> <p>3. Automobiles and garages, § 3*—when ordinance giving ambulances right of way is inadmissible in action for personal injuries to pedestrian. In an action to recover for the death of a boy killed by being struck at a street crossing by an automobile ambulance which was being driven at a high rate' of speed past the wrong side of a street ear standing at the crossing, it is proper to refuse to permit defendant to offer in evidence an ordinance giving ambulances the right of way in the streets when conveying a patient or injured person to a hospital or when proceeding to the scene of an accident, where the evidence shows that no one was being conveyed to the hospital at the time, that the ambulance was not going to an accident and that the boy did not see it approaching.</p> <p>4. Appeal and error—when omission to caution jury to abide by court’s instructions not ground for reversal. Omission in an instruction given for plaintiff to require the jury to abide by the court’s instructions is not ground for reversal where a number of defendant’s instructions are subject to the same objection, while in others the jury are told that they must pass upon the case under the court’s instructions.</p> <p>5. Death, § 73*—when instruction on measure of damages for death of child not erroneous. In an action to recover for the death of a 10-year-old hoy, it is not error to instruct the jury that if they find in favor of plaintiff, in assessing his damages they are not confined to the pecuniary value, if any, of the services of the deceased until he would have become 21, but might also consider the pecuniary benefit, if any, of his services to his next of kin at any age if he had not been killed.</p> <p>6. Death, § 54*—when proof of actual services rendered parents by child unnecessary as basis for estimation of damages. In an action to recover for the death of a 10-year-old boy who left surviving him a mother and father, proof of actual services rendered them is unnecessary, hut on proof of the age and relationship the jury may estimate the damages from the facts shown in connection with their knowledge and experience, and the law presumes some substantial damages to the parents from the fact of death alone.</p> <p>7. Death, § 80*—when error in instruction on damages cured. Error in failing, in one instruction, in an action to recover for death of a child, to limit the recovery to the pecuniary loss of the next of kin, is cured where such limitation is contained in instructions given at defendant’s request which supplement each other.</p>

<p>1. Appeal and error, § 360*—when release of errors in cognovit not conclusive upon maker of judgment note. The release and waiver of errors in a cognovit on a judgment note are not conclusive upon the maker as to an error going to the question of the jurisdiction of the court to enter an order vacating a judgment entered at a previous term.</p> <p>2. Appeal and error, § 783*—when hill of exceptions sufficient. On writ of error to reverse a judgment on a judgment note, hill of exceptions examined and held sufficient to present the questions involved.</p> <p>3. Appeal and error, § 1703*—what does not constitute waiver of claim of error in vacating judgment. The mere fact that a party, who refuses to testify or to offer evidence, is present in court at the hearing of a case on its merits, is not such a participation in the hearing as amounts to a waiver of his contention that the court erred in allowing a motion to vacate a judgment entered in his favor at a previous term of court.</p> <p>4. Judgment, § 78*—when for costs not vacated. The equitable power of a court to open, at a subsequent term, a judgment by confession based upon a cognovit will not be extended to a judgment for costs obtained by a defendant against the plaintiff.</p> <p>5. Judgment, § 298*—when may be set aside after lapse of term. Generally a court is without jurisdiction to set aside a judgment after the lapse of the term at which it was rendered, except as authorized by Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), providing for the correction of errors in fact.</p> <p>6. Appeal and ebbob, § 1330*—when presumed court not acting beyond jurisdiction in setting aside judgment. Where a court enters an order setting aside a judgment entered at a previous term, it will not be presumed that it was attempting an act in excess of its jurisdiction but that it was acting pursuant to the authority given by Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), providing for the correction of errors of fact at a subsequent term.</p> <p>7. Judgment, § 272*—what is purpose and effect of statute abolishing writ of error coram nobis. While Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), abolished the writ of error coram nobis, it did not abolish the essentials of the proceedings incident to that writ, but they remain the same in nature.</p> <p>8. Judgment, § 274*—what is nature of motion to correct errors in fact in proceedings. A motion to correct errors in fact in the proceedings of courts of record under Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), is the commencement of a new suit in which new issues are =made up, and on which there must be a finding and judgment, and the motion stands in the place of the declaration.</p> <p>9. Judgment, § 274*-—necessity of toritten motion for correction of errors in fact. The trial court has no jurisdiction to enter an order under Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), relating to correction of errors in fact in proceedings in courts of record, where no written motion is filed.</p> <p>10. Appeal and ebbob, § 495*—when objection as to absence of written motion to correct error of fact may be first raised on appeal. On appeal from a judgment entered under Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), relating to correction of errors in fact in proceedings in courts of record, the objection may be raised for the first time that no written motion was filed in the trial court.</p> <p>11. Judgment—when party not precluded from obtaining relief by motion to correct errors in fact. The fact that plaintiff, in a proceeding under Rev. St. ch. 110, sec. 89 (J. & A. ¶ 8626), relating to correction of errors in fact in proceedings in courts of record, failed to file a written motion, which objection is raised on appeal, will not thereafter preclude him from obtaining the relief sought if he presents his motion in writing within the time fixed by the statute and complies with its-other requirements.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Sheridan</p> <p>B. Fry, Judge, presiding.</p>

<p>1. Parties, § 31*—when amendment substituting corrected name of defendant is not substitution of new defendant. Where suit is brought against and service had upon the right defendant, but by a wrong name, an amendment substituting defendant’s correct name wherever the incorrect name appears in the title of the cause, the process and the pleadings, does not amount to substituting a new defendant.</p> <p>2. Parties, § 39*—when error to refuse to allow amendment by substituting name of new corporation in place of old as defendant. Where a corporation operating automobiles sold its assets and good will to its stockholders, subject to existing liabilities, and these stockholders, together with others, form a new corporation which continues the business, though the latter, while not active in business, did not dissolve, but maintained its office with those of the new company, and one injured by an automobile operated by the new company brought suit, naming the old company as defendant, process being served upon one who, at the time, was an agent of the new company but had been an agent of the old up to the time of the sale of the assets, and these facts are disclosed at the trial, the case constitutes one of a suit against a right defendant by a wrong name, and it is error to refuse to permit plaintiff to amend by substituting the name of the new company for that of the old.</p> <p>3. Partees, § 39*—how misnomer of defendant must be taken advantage of. Where the real party in interest and the one intended to be sued is actually served, but under a wrong name, he must take advantage of the misnomer by a plea in abatement, or he will be concluded by the judgment or decree therein as though he were described by his true name.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richabd " S. Tuthux, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding.</p>

<p>1. Evidence, § 324*—when testimony of counsel inadmissible to explain order of court. Testimony of counsel on a former hearing as to what took place orally before the trial judge, offered for the purpose of explaining an order, is properly excluded where there is nothing unintelligible in the order.</p> <p>2. Appeal and error, § 731*—lohat not properly part of record. Evidence of colloquies between the trial judge and counsel have no proper place in the record on appeal and will be disregarded.</p> <p>3. Executors and administrators, § 288a*—what constitutes prima facie case in proceeding in Circuit Court on claim for alimony against estate. One filing a claim in the Circuit Court against an estate for alimony makes a prima facie case by the introduction of copies of the order for alimony, the appeal bond given on the appeal from the order, the opinion and judgment of the Appellate Court affirming the order and the bill of costs of the Appellate Court therein, and is not required to offer in evidence the claim filed in the Probate Court, from the judgment of which the appeal was taken to the Circuit Court. 1</p> <p>4. Divorce, § 84*—what is effect of appeal from order for alimony pendente lite on right to change order. An order for alimony pendente lite which is appealed from cannot, pending the appeal, be interfered with or changed by any other judge of the same court; when the appeal is perfected by the filing of the bond on appeal, the questions arising under that order are beyond the jurisdiction of that court, and until the reviewing court has pronounced its judgment and the matter is through its mandate again before the trial court, the latter court cannot again interfere.</p> <p>5. Appeal and error, § 1815*—necessity of trial court acting in accordance with mandate of reviewing court. Where a trial court is reinvested with jurisdiction by the mandate of the reviewing court, it can act only in accordance with that mandate.</p> <p>6. Divorce—what is immaterial in determination of appeal from order allowing alimony. An order vacating an order entered allowing alimony pending an appeal from an order allowing alimony pendente lite is not material, whether entered with or without jurisdiction, in the determination of the appeal from the order allowing alimony.</p> <p>7. Divorce—what is effect of giving and approving appeal bond. An order allowing alimony pending an appeal from an order allowing alimony pendente lite is accepted as a condition of the appeal evidenced by the giving and approving of the appeal bond.</p> <p>8. Appeal and error, § 306*—what is final order. An order for the payment of alimony which is for a specific amount payable absolutely is final and appealable.</p> <p>9. Abatement and revival, § 65*—what is effect of abatement of suit in which alimony is granted by death of defendant. Even though the suit in which alimony is granted is abated by defendant’s death, it does not follow that the amount due under the order before his death cannot be recovered in an independent action.</p> <p>10. Abatement and revival, § 65*—when accrued alimony may be recovered in action on appeal bond of husband after his death. Where defendant dies pending an appeal by him from an order granting alimony, the alimony which has accrued up to the time of his death may be recovered in an action upon the appeal bond, and the surety on the bond who is held therefor has recourse against the estate.</p> <p>11. Divorce, § 90*—what is nature of order to pay alimony pendente lite after judgment. An order to pay alimony pendente lite is a judgment of the court, and after judgment it becomes a vested right which cannot be devested by a subsequent order of the court.</p> <p>12. Divorce—what is effect of affirmance on appeal of order to pay alimony. The affirmance on appeal of an order to pay alimony pendente lite makes the right to alimony final.</p> <p>13. Abatement and revival, § 65*—what is proper claim against estate of husband in favor of wife. While the death of the husband abates a suit for separate maintenance, the amount due, at the time of his death, under an order for alimony pendente lite is recoverable by the widow and is properly a debt provable against his estate.</p> <p>14. Appeal and ebbob, § 1812*—when judgment nune pro tunc proper on appeal from order for alimony pendente lite after death of husband pending appeal. The Appellate Court has authority to enter its judgment nune pro tunc, on an appeal of a husband from an order for alimony pendente lite, as of a date prior to the date of the death of the husband who died while the appeal was pending, and the parties and the court will be bound by such judgment in the absence of a further review.</p> <p>15. Executobs and administbatobs, ,§ 217*—when claim for alimony legally cognizable in Probate Court. The claim of a widow against her deceased husband’s estate for the amount unpaid under a decree for alimony pendente lite is legally cognizable in the Probate Court against the decedent’s estate in that court.</p> <p>16. Executobs and administbatobs, § 204*—what claims are provable against estate. All claims of every nature against a decedent are provable against his estate in the due course of its administration.</p> <p>17. Executobs and administbatobs, § 327*—what constitutes claim of seventh class. The claim of a widow against her deceased husband’s estate for the amount unpaid under a decree for alimony pendente lite is one founded on a money decree which is to be treated as any other obligation of the decedent at the time of his death and is recoverable as a claim of the seventh class against his estate.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 426*—when contract with officer of competitor for purchase of stock and for services is void as against public policy. On a bill for the specific performance of a contract for the sale to complainant, a foreign corporation, by defendant, a director and officer in a competing corporation, of certain shares of stock in the latter in exchange for certain shares of stock in complainant, it appeared that the contract provided that defendant should be elected a director and officer of complainant and that this agreement was carried out; that it also provided that other persons, who were parties to the contract solely for complainant’s benefit, agreed to protect defendant against liability incurred by him to the competing corporation while acting as its officer, such liability to be assumed by complainant; that the stock in the competitor should be, when transferred to complainant, held by it and not transferred on the competitor’s books until such time as it was deemed necessary to do so; that it was the intention of defendant and the persons acting on complainant’s behalf that defendant was to remain a director of the competitor company and represent complainant; that the contract also recited that the third persons in question were desirous that defendant should remain with the competitor until a majority of the latter’s stock had been obtained and that it should be regarded as confidential between them and him. Held, that such a contract was void as against public policy, notwithstanding complainant’s charter authorized it to purchase’ and acquire stock from other corporations.</p> <p>2. Corporations—when foreign corporation has no power to acquire stock in domestic corporation. The facts that the charter of a foreign corporation gives it power to purchase and acquire stock from other corporations and that it is licensed to do business in Illinois do not give it the right to acquire and own stock in an Illinois corporation.</p> <p>3. Corporations—when contract of foreign corporation with officer of domestic corporation is ultra vires and void. The contract of' a foreign corporation with an officer and director of an Illinois corporation which has for its main object the acquiring by the foreign corporation of stock of the Illinois corporation and the merging of the latter into the former, is beyond the powers of the foreign corporation, ultra vires and void.</p> <p>4. Corporations, § 426*—right of one corporation to control another. The public policy of Illinois will not permit the control of one corporation by another.</p> <p>5. Corporations, § 426*—when contract of foreign corporation with officer of domestic corporation is in fraud of rights of stockholders of latter. A contract between a foreign corporation and one who is a stockholder and officer of a competitor company which has for its objects the elimination of the competitor and the enabling of the foreign corporation to acquire the competitor’s business and property, is in fraud of the rights of stockholders of the competitor who are not parties to the contract.</p> <p>6. Estoppel, § 49*—when cannot he invoked. • Estoppel cannot be invoked to enforce an illegal act.</p> <p>7. Estoppel, § 49*—when cannot he invoked to enforce contract. The doctrine of estoppel cannot be invoked to enforce an ultra vires contract of a corporation on the ground that the party against whom it is invoked has received the benefit of the contract.</p> <p>8. Corporations, § 342*—when contracts of unenforceable. Contracts of a corporation which are ultra vires and unlawful cannot be enforced.</p> <p>9. Corporations, § 352*—ratification of ultra vires contract. An ultra vires contract of a corporation cannot be ratified by either party because it could not have been authorized by either.</p>

<p>Interlocutory appeal from the Circuit Court of Cook county; the Hon. Mebritt W. Pinckney, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Commerce, § 4*—when stationary engineer not engaged in interstate. An engineer in charge of the operation of a steam crane which is used for hoisting concrete and pouring it into forms for a retaining wall and for shifting the forms, the retaining wall forming a support for material used to elevate a part of a track in a city’s limits over which passes a division of a railroad which connects with other divisions of the railroad running into other States, is not engaged in interstate commerce so as to come under the Federal Employers’ Liability Act.</p> <p>2. Master and servant, § 110*—when negligence of employer in requiring employee to operate crane near electric wires not proximate cause of death of employee 6y shock. The negligence of an employer in requiring an employee to operate a crane so near electric wires as to bring it in contact with the wires is not the proximate cause of his death, where it appears that an electric wire was broken by coming in contact with the crane cable and that after the wire had fallen, against the warning of his fellow employees and while it was clear that it was a “live” wire, he picked it up and held it, though there was no emergency or danger to others requiring him to do so, and received- a shock which killed him.</p> <p>3. Negligence, § 196*—when proximate cause question for court. While the question of what is proximate cause is, ordinarily, for the jury, whether there is any evidence tending to show that the negligence charged was the proximate cause is a question of law.</p> <p>4. Master and servant, § 110*—when negligence not proximate cause of death of employee. If the negligence complained of, in an action for the death of an employee, merely furnished a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of the condition was not the proximate cause of the injury, and if the act which was the immediate cause of the injury was such as in the exercise of reasonable diligence would not be anticipated, the first act or omission was not the proximate cause of the injury.</p> <p>5. Master and servant, § 110*—when act of employee in picking up live wire cannot reasonably be guarded against by employer. A master cannot reasonably anticipate or guard against the act of an .experienced engineer in its employ, who has good health and good eyesight and is warned by his associates, in picking up an electric wire which is evidently and visibly “live.”</p> <p>6. Master and servant, § 579*—when burden of showing that employee picked up live wire to save others is on plaintiff. Where an experienced engineer, contrary to the warnings of his associates, picks up an electric wire which is obviously “live,” the burden of showing that he did so to save others who were exposed to danger by the wire is on the plaintiff, in an action to recover for the engineer’s death.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 1752*—when judgment affirmed for insufficiency of abstract. An affirmance of a judgment id warranted where appellant’s abstract fails ■ to show what was the judgment complained of.</p> <p>2. Appeal and ebbob, § 1287*—when presumed that defense was inadequate. Where the abstract is silent as to an affidavit of merits, on appeal from a judgment against defendant, the presumption is in favor of the judgment and that the defense was inadequate.</p> <p>3. Landlord and tenant, § 72*—when lease construed as providing for payment of rent in monthly instalments. Where a lease, after naming the sum payable for the entire term, proceeds: “Payable as follows: One Hundred ($100) dollars on the 15th day of October, 1916, and .............. ($......) on the 15th day of each and every succeeding month of the term,” it is to be interpreted as meaning that $100 shall be paid on account of rent on the 15th day of each month during the term, and the objection that this construction might operate to compel the payment eventually of $50 more than the sum payable for the entire term is of no force where plaintiff’s brief disclaims any intention of demanding more than the total sum specified, and admits that plaintiff would have no such right.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 1313*—when presumed that court properly advanced cause for hearing. Where, in an action on promissory notes, on defendant’s motion to vacate a judgment by confession entered against him, leave is given to plead, the judgment being allowed to stand as security, and defendant files the plea of general issue and a special plea that the notes were given without consideration, and pursuant to the showing made by plaintiff’s affidavit the case is placed on the short-cause calendar, but, on defendant’s motion to strike because the cause was not at issue, leave is given plaintiff to file a replication instanter, the case is stricken from the short-cause calendar and advanced, over defendant’s objection, to the head of the trial calendar and set for immediate hearing, the act of the trial court in so advancing the cause is not an abuse of discretion which, in the absence of a showing that defendant’s rights were prejudiced," constitutes reversible error, but, it will be presumed, in the absence of such a showing, that the court so acted for good and sufficient reason.</p> <p>2. Bills and notes, § 12*—validity of note in plural form signed 6y only one person. That notes which were intended to be signed by two persons were, in fact, signed by- but one does not render them invalid as incomplete, a note in plural form but signed by one person only being a valid obligation of the signer.</p> <p>3. Bills and notes, § 50*—when notes are' founded on good consideration. Notes given in consideration of the release of a trust deed and of an equitable lien against the property are founded upon a good consideration.</p> <p>4. Bills and notes, § 327*—what is not a defense in action to recover on notes given in consideration of release of mortgage. In an action to recover on promissory notes given in consideration of the release of a mortgage on real estate, defendant cannot set up that her title to the premises was superseded by a' paramount title and that she was evicted merely because a forcible detainer suit was instituted against her where, before the issue therein was determined, she satisfied the lien upon which the claim to possession was based.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. WbBKMEN’s Compensation Act, § 12*—when declaration in action for death of employee is insufficient. In an action to recovei for the death of an employee, a declaration which omits to allege or state any facts showing that the employer and employee were not, at the time of the accident, under the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. f 5475(1) et seq.], does not state a cause of action.</p> <p>2. ' Workmen's Compensation Act, § 14*—when declaration does not allege casual employment of employee. Allegations in a declaration, in an action to recover for the death of an employee, that defendant, on the date of the accident, owned and operated a street railway system and a power house, and that “prior to and at the time aforesaid, said deceased was employed hy the defendant as a fireman,” to fire certain boilers which defendant operated in its power house to furnish steam for the operation of the dynamos of defendant; that deceased earned $4 a day; that defendant maintained boilers which “deceased was required to fire and work with,” and which also refers to the conduct of deceased “in the discharge of his duties” as fireman, are inconsistent with the theory that the employment was casual and constitute an affirmative allegation of regular employment.</p> <p>3. Workmen’s Compensation Act, § 12*—when plaintiff must show in pleadings that either of parties not under. In an action to recover for the death of an employee, the burden is on the plaintiff to assert in his pleadings and to prove that either the employer or the employee is not hound hy the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. V 5475(1) et seq.].</p> <p>■ 4. Workmen’s Compensation Act, § 14*—duty of plaintiff in action for death to prove that employment is hut casual. In the. provision in section 5 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. If 5475(5)] that the term “employee” shall be construed to mean “every person in the service of another under any contract of hire, * * * but not including any person whose employment is hut casual,” the concluding words constitute an exception, and, in an action to recover for the death of an employee, the plaintiff, to bring himself within the exception, must affirmatively prove it</p> <p>5. Workmen’s Compensation Act, § 12*—what is essential allegation in action to recover for death of employee. If, in an action to recover for the death of an employee, plaintiff does not, in his declaration, negative the presumption .that the parties are under the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. If 5475(1) et seq.h, he has failed to state an element, the existence of which is essential to entitle him to recover.</p>

<p>Abstract of the Decision.</p> <p>1. Payment, § 41*—when rule preventing recovery of money paid voluntarily under mistake of law is inapplicable. The rule which prevents the recovery of money voluntarily paid under a mistake as to the law and under a claim of right does not apply to an action by a carrier to recover freight charges refunded by it on interstate shipments under a mistake as to amount of such charges as regulated by the Interstate Commerce Act.</p> <p>2. Carribes, § 33a*—what rates must be paid on interstate shipments. The only rates which a common carrier may collect and a __ shipper may pay on interstate shipments are those fixed hy the Interstate Commerce Act, and those rates cannot be altered by mistakes or misapprehensions of either shipper or carrier.</p> <p>3. Commerce, § 33a*—what is proper forum to pass upon railroad rates and tariffs. The Interstate Commerce Commission is the proper forum to pass upon the comparative fairness of through rates and local tariffs.</p> <p>4. Carriers, § 211*—when expert evidence relating to interstate commerce tariff rates is admissible. In an action to recover back money alleged to have been erroneously refunded as an overcharge on an interstate shipment, it is not error to permit an expert to explain matters connected with the interstate commerce tariff rates and schedules.</p>

<p>1. Appeal and error, § 43*— when writ of error lies to County Court. A writ of error to a County Court from the Appellate Court, in proceedings for the administration of an estate by a public administrator and for the sale of real estate to pay debts, may be sued out.</p> <p>2. Executors and administrators—what is nature of proceedings by public administrator to sell land to pay debts. Proceedings by a public administrator to sell real estate to pay debts are purely of statutory origin, and where it is sought to devest an heir of his title to real estate in such proceedings, it must appear that the statute has been strictly complied with.</p> <p>3. Executors and administrators, § 56*—when County Court has jurisdiction to appoint public administrator. A County Court has jurisdiction to appoint a public administrator at the instance of a creditor, where the time has expired within which relatives of the deceased have the exclusive right to administer the estate, although it is not averred in the petition that there is no relative or other creditors in the State to administer the estate.</p> <p>4. Executors and administrators, § 296*—right of heir to question legality of allowance of claim. The allowance of a claim against an estate is only prima facie evidence against the heirs of deceased, and not conclusive, and an heir has the right under certain conditions to question the legality of the allowance of a claim by a public administrator and by the court.</p> <p>5. Executors and administrators, § 264*—what'is nature of a claim. A claim filed in the matter of the administration of an estate is a pleading.</p> <p>6. Pleading, § 2*—what is. A pleading is a statement in the legal form of facts which constitute the plaintiff’s cause of action, or the defendant’s ground of defense.</p> <p>7. Executors and administrators, § 264*—what is pleading of claimant. The pleading of a claimant in a proceeding in the Probate Court for a judgment against an estate is a claim prepared in accordance with the provisions of the Administration Act.</p> <p>8. Records, § 7*—what is part of record. As a pleading in the case, a claim filed against an estate is a part of the record.</p> <p>9. Executors and administrators, § 206*—what is contingent unprovahle claim. A claim against an estate based upon a contract between claimant, the life tenant of property, and deceased and other heirs, whereby deceased and the other heirs agreed to pay claimant a certain sum per month, inclusive, however, of rents from the property, which they agreed to collect and pay over as a part of the monthly payment, for the lifetime of claimant, is not provable under section 67 of the Administration Act (J. & A. ? 116), since it is contingent in nature.</p> <p>On Petition for Writ of Restitution.</p> <p>1. Appeal and error, § 7*—what is nature of writ of error. The suing out of a writ of error is the commencement of a new action.</p> <p>2. Appeal and error, § 1036*—what is nature of assignment of errors. The assignment of errors is the declaration of the plaintiff suing out the writ of error.</p> <p>3. Appeal and error, § 7*—what is office of writ of error. Although a writ of error is a new suit, yet it is not an original suit in the Appellate Court, in which new issues of fact may be framed, its only office being to try the validity of the proceedings had in the court below and to determine whether reversible error is found therein.</p> <p>4. Appeal and error, § .1844*—when Appellate Court will not entertain petition for writ of restitution after remand. Where, on writ of error to the Appellate Court, the grant of letters to a public administrator is approved, but the allowance of the claim, the decree of sale of real estate to pay debts, and the sale and order approving it are set aside and the cause remanded, the Appellate Court will not entertain a petition for a writ of restitution against the purchaser of the property sold and a subsequent vendee to compel the surrender of the property, and the subsequent vendee, who is in possession, not having been made a party .to the writ of error originally sued out to review the allowance of the claim, etc., since such vendee is entitled to her day in court.</p>

<p>1. Criminal law, § 103*—what is effect of plea of not guilty. Under the Criminal Code, div. 13, sec. 3 (J. & A. ¶ 4120), providing that it shall be sufficient, without any other form, for the defendant to declare orally that he is not guilty and that such plea shall constitute the issue between the People and the prisoner, the plea of not guilty dispenses with all other pleas and forms and permits all meritorious defenses to be made thereunder.</p> <p>2. Criminal law, § 103*—right to claim immunity from prosecution under plea of not guilty. A defendant in a criminal case is entitled to the benefit of claimed immunity from prosecution under a plea of not guilty.</p> <p>3. Criminal law—when order as to immunity from prosecution does not protect from prosecution, for illegally selling liquor. Under the Criminal Code, div. 1, secs. 31-34 inc. (J. & A. ¶¶ 3517-3520 inc.), relating to the offense of bribing an officer and make such bribery a penal offense as against both the officer receiving the bribe and the person giving it, and section 35 (J. & A. ¶ 3521), providing that whenever at an investigation before a grand jury concerning any offense named in the preceding sections it shall appear that another person is a material witness and that his testimony would tend to incriminate him, the court may cause an order of immunity from prosecution to be entered and thereupon the witness shall be compelled to testify, and, if he shall testify, such order shall forever after be a bar to any indictment, information or prosecution against him for such matters, an order granting immunity from prosecution to a witness appearing before a grand jury investigating a charge of bribery by the witness of a prosecuting attorney to not prosecute criminal cases for illegally selling intoxicating liquor, protects him only against prosecution for bribery and not for illegally selling liquor.</p> <p>4. Criminal law, § 312*—when defendant may not complain of failure of court to instruct jury. The defendant in a criminal case cannot complain of the failure of the court to instruct the jury that the evidence of certain witnesses was excluded, in the absence of the jury from the court room, where he does not proffer an instruction on the subject.</p> <p>5. Criminal law, § 416*—when defendant cannot complain of erroneous admission of evidence. In a prosecution for the illegal sale of intoxicating liquor, defendant cannot complain on appeal of error in introducing evidence, of sales after the date of the return of the indictment, where he fails to make objection in the trial court.</p> <p>6. Intoxicating liquors, § 162*—when instruction on non-necessity of proving specific day and year of sale not reversibly erroneous. In a criminal prosecution for the sale of intoxicating liquor in less quantities than one gallon without a license, an instruction that it was not necessary that the specific day and year be proven, if the jury believed beyond a reasonable doubt that it was within a year and a half next previous to the date when the indictment was returned, and that accused could be found guilty under any one count for each sale, proved beyond a reasonable doubt, but not stating that the 'sales without a license must be in less quantities than one gallon, was not reversibly erroneous, where the instruction immediately preceding it was correct and contained the requirement, and there were only fifty counts in the indictment and proof of over one hundred and fifty sales of whisky in pints and half pints and by the drink.</p> <p>7. Indictment and information, § 39*—when names are idem sonans. The names “Philip Goldberg” and “Philup Goldberg” in an indictment are idem sonans.</p> <p>8. Intoxicating liquors, § 162*—necessity of reversal or affirmance in whole of judgment of conviction based on different counts. The judgment of conviction of the County "Court, in a prosecution for the illegal sale of intoxicating liquor, in less quantities than one gallon, without a license, based on different counts of an indictment, is so far a unit that it must be either reversed in whole or affirmed in whole by the Appellate Court.</p> <p>9. Criminal law, § 577*—when error in incorrectly naming defendant in count of indictment waived. The error, in namin" the defendant in a criminal case as “Philip Holdberg,” in one of several counts in an indictment for illegally selling intoxicating liquor, instead of as "Philip Goldberg,” is waived where the question is not raised in the trial court.</p> <p>10. Intoxicating liquors, § 161*—when judgment in criminal prosecution for illegally selling is not excessive. A judgment, under fifty counts of an indictment for illegally selling intoxicating liquor in less quantities than one gallon without a license, fining defendant $50 under each count and sentencing him to 10 days’ imprisonment in jail under each of ten counts, is not excessive.</p> <p>On Petition fob Rehearing.</p> <p>Criminal law; § 414*—when question that record does not show that grand jury were sworn may not he raised. The defendant in a prosecution for the illegal sale .of intoxicating liquqr, who pleads not guilty in the Circuit Court without making any motion to quash the indictment for any lack of showing in the record that the grand jury were sworn, and, after transfer of the record to the County Court, does not raise the question, and does not raise the question in his briefs on appeal to the Appellate Court, cannot be heard to raise the question for the first time in his petition for rehearing.</p>

<p>Error to the County Court of Lake county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1042*—how assignments of errors must appear in record. Under rule 12 of the Appellate Court, assignments of errors must be written upon or attached to the record.</p> <p>2. Appeal and error, § 1042*—effect of failure, to attach to or write in record assignment of errors. If there is no assignment of errors attached to or written on the record, there is nothing to review.</p> <p>3. Appeal and ebbob, § 1042*—how deficiency in record due to absence of assignment of errors may not be supplied. The deficiency of a record on appeal, due to the failure to attach to or write on the record the assignment of errors, cannot be supplied by printing in the abstract an assignment of errors not in fact upon the record.</p> <p>4. Appeal and ebbob, § 1042*—when Appellate Court will act upon defect in record on own motion. The defect in the record on review, due to failure to write on or attach to the record the assignment of errors, will be • acted upon by the Appellate Court, on its own motion; when discovered.</p> <p>5. Appeal and ebbob, § 1711*—when error waived. A supposed error, not assigned, is waived, and is not open to review by the Appellate Court.</p> <p>6. Appeal and ebbob, § 601*—how question of sufficiency of evidence may. be raised. The question of sufficiency of the evidence to support the verdict or judgment in a case tried by a jury can only be raised by a motion for a new trial.</p>

<p>1. Appeal and error, § 1268*—when presumed that, facts warranted sustaining of demurrer to bill. Where a bill does not contain any allegation with respect to material facts, they will be presumed to be such as will sustain the action of the court in sustaining a demurrer to the bill.</p> <p>2. Roads and bridges, § 203*-—what are requisites of notice in proceedings to collect penalty for obstruction of highway. In a. proceeding by a town under the Roads and Bridges Act, sec. 71 (J. & A. 1f 9700), to collect a penalty for the obstruction of a highway by a fence, the plaintiff must state in its notice what places defendant is charged with obstructing so that he may ascertain what his rights are.</p> <p>3. Roads and bridges, § 179*—what constitutes obstruction of highway. The building of a fence longitudinally in a road constitutes an obstruction warranting the collection of the penalty provided by, and its removal under, the Roads and Bridges Act, sec. 71 (X & A. 1T 9700).</p> <p>4. Roads and bridges, § 193*—when injunction lies to compel removal of obstruction in highway. An injunction to compel the removal of an obstruction in a public highway may be maintained by a town, on a proper bill in equity showing danger of great and irreparable injury.</p> <p>5. Nuisance, § 25*—when equity loill not intervene to prevent or remove public. While a court of equity may prevent or remove a public nuisance and interpose its extraordinary powers, it will not do so if the remedy at law is adequate.</p> <p>6. Roads and bridges, § 184*—when encroachment on highway constitutes public nuisance. It is a public nuisance to obstruct or encroach with a fence on a public highway.</p> <p>7. Pleading, § 432*—what is office of videlicet. The object of a videlicet is to dispense with strict proof.</p> <p>8. Pleading, § 432"—what is effect of videlicet as to proof of distance obstruction extends into hightoay. Where the allegations, under a videlicet, as to the number of feet a fence encroaches on a road are denied by answer, the complainant, in a suit by a town to compel the removal of the fence as an obstruction to the road, can only be required to prove that the fence is some appreciable distance over the road line.</p> <p>9. Roads and bridges, § 179*—what constitutes obstruction to highway. The construction of a'fence longitudinally in a highway constitutes an obstruction to the highway under the Roads and Bridges Act, sec. 71 (X & A. 1f 9700), whether any damage results or not.</p> <p>10. Roads and bridges, § 193*—when injunction does not lie to compel removal of fence as obstruction in highway. A bill by a town for a mandatory, injunction to compel the removal,' under the Roads and Bridges Act, sec. 71 (X & A. If 9700), of a fence built longitudinally in the highway is not maintainable, especially where the boundaries of the highway are not in dispute, since the remedy at law. is adequate.</p> <p>11. Equity, § 9*—collection of penalty. Equity cannot be resorted to for the sole purpose of collecting a penalty.</p>

<p>Appeal from the Comity Court of Will county; the Hon. George J. Cowing, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Greek, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.</p>

<p>1. Drainage, § 48*—when drain commissioners not liable to owner of land for damages because tile is insufficient. Under section 46 of the Farm Drainage Act'(J. & A. If 4523), providing that commissioners failing to perform any of the duties imposed upon them by the act shall individually he liable to a fine of $100 and also be liable to the person injured by such neglect of duty for all damages resulting, commissioners are not liable to the owner of land for damages to crops because the tile is not large enough to carry off the water in wet seasons, in the absence-of a showing that they failed to honestly exercise their best judgment in the discharge of their official duties.</p> <p>2. Drainage, § 87*-—what is right of property owner as to having land adequately drained during wet season. While every landowner in a farm drainage district is entitled to drainage that he pays for, it does not follow that every landowner assessed for benefits in the district is, as a matter of course, entitled to have every acre of his land so thoroughly drained that there is no danger of destruction of a crop in an unusually wet season.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Dorbance Dibble, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 735*—when shown that bell was rung and whistle sounded, on approach to crossing. In an action against a railroad company by an occupant of an automobile to recover for personal injuries received at a highway crossing, due to a collision between one of defendant’s through passenger trains and the automobile, evidence held sufficient to show that the bell of the engine was ringing and the whistle sounding on approaching the crossing.</p> <p>2. Instructions, § 10*—impropriety of giving large number of. It is error for the trial court to give a vast number of instructions amounting in the aggregate to a lengthy address by the court on behalf of defendant.</p> <p>3. Instructions, § 10*—limitation of number. There can be no hard and fast rule limiting the number of instructions.</p> <p>4. Instructions, § 10*—when excessive number given. The giving of thirty-four instructions in behalf of the defendant in a negligence case was error, because of excessiveness.</p> <p>5. Appeal and error—when giving excessive number of instructions is harmless error. The giving of an excessive number of instructions is not reversible error where each instruction is accurate and no other error occurs.</p> <p>6. Railroads, Ü 733*—when freedom from wanton and wilful negligence in operation of train at high speed is shown. In an action by an occupant of an automobile against a railroad company to recover damages for personal injuries sustained in a collision between the automobile and one of defendant’s passenger trains at a highway crossing near the edge of a town, where it appeared .that the train was a through one and was traveling at the rate of 40 to 50 miles per hour, that an ordinance of the town required a speed limit of 10 miles per hour through the town, and the evidence was conflicting as to the giving of statutory signals on approaching the crossing, evidence held to show freedom from wilful and wanton negligence in the operation of the train.</p> <p>7. Appeal and eebob, § 1544*—when plaintiff in negligence case cannot complain of error in instructions. A plaintiff in a negligence case cannot complain because of the submission of the case to the jury with instructions that plaintiff could not recover in the absence of proof of ordinary care, on the ground that the declaration charged wilful and wanton negligence as well as ordinary negligence on the part of defendant, where he did not undertake to submit the question of wilful or wanton negligence, but in two or three of his general instructions covering the case told the jury that they could not find for the plaintiff unless they believed he was in the exercise of ordinary care for his own safety.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.</p>

<p>Error to the Circuit Court of Winnebago county; the Hon. James S. Baume, Judge, presiding,</p>

<p>Abstract of the Decision.</p> <p>1. Damages, § 192*—when must he left to discretion of jury. There is no fixed rule for the determination of damages for physical discomfort and deprivation of enjoyment of a home, due to overflow from the manhole of a city sewer, but the amount must be left largely to the sound judgment and discretion of the jury.</p> <p>2. Municipal corporations, § 1115*—when landowner may recover damages for injury due to overflow from sewer. A landowner may recover damages in consequence of the construction of a sewer where noxious substances flow from a manhole, near his premises during heavy rains, render the air unwholesome and offensive, and annoy and injure him.</p> <p>3. Appeal and error, § 1308*—when presumed that all elements of injury, proved came within purview of declaration. It will be presumed, in an action by a landowner against a city to recover damages for injury due to overflow from a sewer, that all the elements of injury proved came within the purview of the declaration, where the declaration is not set. out in the abstract.</p> <p>4. Instructions, § 135*—non-necessity of offering. A party plaintiff is not required to offer any instruction relating to the measure of damages.</p> <p>5. Appeal and error, § 892*—when error in instruction will not be reviewed. Where the declaration, in an action by a property'owner against a city for damages for injury due to overflow from a sewer, is not included in the abstract, any error in an instruc- ' tion will not be reviewed, if reference to the declaration is neces-, sary.</p> <p>6. Municipal corporations, § 1115*—when verdict for damage due to overflow of sewer not excessive. Á verdict for $700 for physical discomfort and loss of crops due to the overflow of a sewer in time .of heavy rains, held not excessive.</p> <p>7. Appeal and error, § 810*—what must be part of bill of exceptions. Questions concerning affidavits, which are filed in connection with a motion for a new trial, cannot properly be passed upon where the affidavits are not a part of the bill of exceptions.</p> <p>On Petition - for Rehearing.</p> <p>Trial—when misconduct of plaintiff before hearing of testimony should be brought to attention of trial court. The misconduct of a party plaintiff, in an action by a landowner against a city for damages for injury, due to overflow from a sewer, before the hearing of any testimony and at the time the jury are viewing the premises should, where the defendant’s officers have knowledge of the fact at the time, be brought to the attention of the court by a motion to discharge the jury or in some other manner, and the defendant may not wait until an unfavorable verdict is returned and then complain.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Jambs S. Baume, Judge, presiding.</p>

<p>1. Notice, § 37*—right of judgment creditor to rely upon record of title to real estate. A judgment creditor has the right to rely upon the record of title as to real estate, and upon what the records disclose concerning any interest therein, and, unless he has actual notice to the contrary, may act concerning the interest disclosed by the records, although the actual interest of the party be different.</p> <p>2. Notice, § 4*—when judgment creditor put upon inquiry as to whether payments have been made on contract for purchase of land. Where a judgment creditor has notice from the record of a contract for the purchase of land that the vendor could forfeit at any time any interest acquired by the purchaser because of the failure to make the stipulated payments, he is put upon inquiry as to whether the payments have been made, and, if not made, as to the consequences that might ensue.</p> <p>3. Execution, § 169*—when sale of land bought under contract which has been forfeited will be set aside. Where, at the time of the levy of execution by a judgment creditor upon land of the judgment debtor bought under contract, the debtor has no interest in the land because of a forfeiture and surrender of the contract, á levy and sale under the execution would merely constitute a cloud upon the title of the "vendor, and the sale may be enjoined and the levy made canceled and annulled.</p> <p>4. Execution, § 1S1*—when shown that contract for purchase of land was canceled before date of entry of judgment. On a bill by the owner of land to cancel and set aside a levy of execution on the land as the property of a purchaser under contract, and to enjoin a sale under the execution, evidence held sufficient to show that the contract was canceled and surrendered before the time of entry of the judgment and the levy of the execution.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 401*—what is fundamental principle upon which estoppel hy former adjudication is allowed. Whether an adjudication relied upon as an estoppel goes to a single question or all the questions involved in a cause, the fundamental principle upon which it is allowed in either case is that justice and public policy alike demand that a matter whether consisting ¡bf one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction, shall be deemed finally and conclusively settled in any subsequent litigation between the same parties, where the same question or questions arise.</p> <p>2. Judgment, § 442*—when rule as to res adjudicata applies. When a second suit is about the same matter or cause of action, then all matters that could have been as well as all matters that actually were put in issue and determined in the former suit are presumed to have been put in issue, and the rule as to res adjudicata applies.</p> <p>3. Judgment, § 444*—when rule as to res adjudicata does not apply. Where a second suit is about a different cause of action than the first, or in reference to a different matter, or relating to different property, then the rule of res adjudicata has no application except as to such matters as were actually in litigation and actually decided in the former proceedings relied upon as res adjudicata.</p> <p>4. Judgment, § 441*—when rule as to res adjudicata does not apply to bar creditor’s bill. A judgment in a suit to set aside and remove out of the way of an execution an alleged fraudulent conveyance by a judgment debtor that the conveyance was not fraudulent is not res adjudicata so as to constitute a bar to a creditor’s bill for the discovery of property and assets of the judgment debtor, for the purpose of applying the same to the payment of complainant’s judgment, since the proceedings are different in character, the subject-matter of the suit is different and the property affected is different.</p>

<p>Abstract of the Decision.</p> <p>1. Alteration of instruments, § 2*—what does not constitute material alteration of note. The writing, after execution of a note, by the holder, the mother of the maker, underneath the note in the blank space below the signature of the maker of the words, “To be cancelled at my death,” and followed by the signature of the holder, constitutes a mere memorandum, and not a material alteration of the note.</p> <p>2. Witnesses, § 122*—when executor is competent to testify in suit against heir. An executor of an estate is competent to testify in a suit against an heir to enforce a personal liability to the estate under a note secured by a trust deed.</p> <p>3. Depositions—when part of record in chancery case. Depositions, when regularly taken, filed and opened, are a part of the record in a chancery case.</p> <p>4. Depositions, § 43*—when lack of opportunity to object to evidence in is harmless error. The fact that depositions are not formally offered as evidence before a master in chancery and that the adverse parties have no opportunity to object to the evidence in the depositions is immaterial, where the witnesses were competent and their evidence did not relate to anything materially affecting the ' controverted questions in the case.</p> <p>5. Witnesses, § 106*—when husband and wife incompetent to testify in suit to foreclose trust deed by executor of holder of note. A husband and wife who sign a trust deed are incompetent witnesses in a suit by the trustee and by the executor of the estate of the deceased holder of a note secured by the trust deed to enforce payment of the note by foreclosure of the trust deed, under Hurd’s Rev. St. ch. 51, sec. 2 (J. & A. If 5519), providing that no party to any civil action, suit or proceeding shall be allowed to testify therein of his own motion, or in his own behalf, when any adverse party sues or defends as the executor of any deceased person.</p> <p>6. Witnesses, § 106*—what is effect of conveyance of property by husband, to vñfe on incompetency to testify in suit to foreclose trust deed by executor of holder of note. The fact that, during pendency of proceedings for the enforcement by foreclosure of the liability of a husband and wife on a note secured by trust deed by the executor of the estate of the holder, the husband conveys the mortgaged property to his wife, does not remove the bar as to incompetency of both to testify under Hurd’s Rev. St. ch. 51 sec. 2 (J. & A. If 5519), providing that no party to any civil action, suit or proceeding shall be allowed to testify therein of his own motion, or in his own behalf, when the adverse party sues or defends as the executor of any deceased person.</p>

<p>Abstract of the Decision.</p> <p>1. Workmen’s Compensation Act, § 12*—what evidence is sufficient to sustain general verdict for compensation for partial permanent disability. In proceedings for compensation under the Workmen’s Compensation Act of 1911 (J. & A. If 5449 et seq.), it is unnecessary that the evidence, to sustain a general verdict by the jury, should be so clear and complete in a case of partial permanent disability that the amount of compensation can be figured therefrom with mathematical accuracy. •</p> <p>2. Workmen’s Compensation Aot, § 12*—when evidence that claimant has no education is admissible. On an appeal to the Circuit Court from the findings of the board of arbitrators and trial de novo before a jury, in proceedings for compensation under the Workmen’s Compensation Act, evidence that claimant has no education is admissible on the question of what limitations there are on claimant’s earning capacity after the accident and injury.</p> <p>3. Evidence, § 410*—when physician may testify that later injury was caused by original injury. Where' there is no dispute as to the manner and cause of an injury, and no dispute that an injury has been sustained, it is competent for a physician to testify directly that a later malady was caused by the accident or original injury.</p> <p>4. Appeal and error, § 1316*—when party cannot complain of any error in an instruction given for adverse party. A party cannot Complain of any error in an instruction given for the adverse party when it fails to set out its own instructions in the abstract, and it will be assumed that there may have been an instruction among those not set out which cured the error.</p> <p>5. Workmen’s Compensation Act—when claimant not estopped to recover compensation by doctrine of election of remedies. Where an injured employee files a petition for the appointment of arbitrators under the Workmen’s Compensation Act, and later commences an action on the case in the Circuit Court, claiming that the employer is liable to him under section 3 of the Workmen’s Compensation Act (J. & A. j[ 5451), because of an intentional omission to comply with statutory safety regulations, but, before the conclusion of the trial, takes a nonsuit, he is not estopped by the doctrine of election of remedies from securing the reinstatement of the proceedings under the Workmen’s Compensation Act, they having been, in the meantime, dismissed with leave to reinstate, and prosecuting them to a final conclusion.</p>

<p>Abstract of the Decision.</p> <p>1. Equity, § 554*—what is purpose of hill of review. A bill of review is properly filed to procure an examination and reversal of a decree after its enrollment, and is not a part of the original cause, but an independent proceeding, and is the only proper method by which the court rendering the decree can review it for error after the time for rehearing has expired.</p> <p>2. Equity, § 97*-—who must he made parties. It is a fundamental principle in equity concerning parties that aU persons in whose favor or against whom there might he a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and relief granted, that their rights or duties might be affected by the decree, although no substantial recovery can be obtained either for or against them, shall be made parties to the suit, and it is not ordinarily a matter of substantial importance whether they are joined as plaintiffs or as defendants.</p> <p>3. Appeal and error, § 1213*—what may not be assigned Tor error. A party cannot assign for error that which does not affect him but is prejudicial only to others who do not complain.</p> <p>4. Appeal and ebrob—when error in reinstating stricken bill without notice may not be complained of. Any error of the trial court, in a suit in equity to dissolve a partnership and procure an accounting, in reinstating without notice to the defendants, the bill, which was stricken from the docket with leave to reinstate, cannot be raised on appeal where the question was not raised in the trial court, and no injustice resulted from the action of the court.</p> <p>5. Equity, § 574a*—when bill of review defective for lack of parties. A bill for review of a decree in a suit by one partner against other members of the partnership for a" dissolution of the partnership and for an accounting is fatally defective where only some of the defendants are made parties to the bill of review.</p>

<p>Appeal from the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>1. Fraudulent conveyances, § 49*-—when conveyance by husband to wife is not based upon sufficient consideration. If, at the time of a conveyance by a husband to his wife of the farm used as a home, he is in failing circumstances, and financially embarrassed, a consideration consisting of a. sum of money advanced 40 years before as a gift to the wife by her father and turned over to the husband as the result of the deduction of the amount from the purchase price of land sold to the husband by the father is insufficient.</p> <p>2. Fraudulent conveyances, § 89*—when voluntary conveyance to wife will be sustained. A voluntary conveyance to a wife by a husband will be sustained as against creditors, unless the circumstances attending the conveyance justly create a presumption of fraud, actual or constructive.</p> <p>S. Fraudulent conveyances, § 267*—when solvency of debtor at time of transfer shoum. On a creditors’ bill to subject land conveyed by the debtor to his wife to the payment of the husband’s debts, evidence held sufficient to show that the debtor was solvent at the time of the transfer.</p> <p>4. Fraudulent conveyances, § 242*—when presumed that debtor paid purchase price of land. On a creditors’ bill to subject land conveyed by a debtor to his wife to the payment of the husband’s debts, in determining the question of solvency at the time of transfer, it will be presumed that the debtor paid the purchase price of land bought by him, in the absence of any evidence to the contrary. ,</p> <p>5. Fraudulent conveyances, § 52*—when conveyance by husband to wife not invalid as against creditors. If a conveyance by a husband to his wife of land is valid as against creditors at the time it is made, it does not become invalid at a later time because the debtor becomes insolvent and is so at the time of his death.</p>

<p>Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Ibwin, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>T. Trial, § 187*—what is effect of motion for direction of verdict. A motion for direction of a verdict for defendant at the close of a plaintiff’s case raises the question as to whether there is any evidence in the record fairly tending to prove the case made by the declaration.</p> <p>2. Trial, § 195*—when proper to refuse to direct verdict. Where there is evidence tending to prove plaintiff’s case, it is proper to refuse to direct a verdict at the close of plaintiff’s evidence.</p> <p>3. Trial, § 179*—what is nature of motion to direct verdict for defendant. A motion made at the close of all the evidence to direct a verdict for defendant amounts to a demurrer to the evidence.</p> <p>4. Appeal and error, § 438*—what is necessary to preserve question of variance. ' In order to avail of a material variance between allegations and proof, the testimony must be specifically objected to at the time it is offered, and the variance pointed out.</p> <p>5. Appeal and error, § i88*-^what must be shown by record in order for question of variance to be available. A party, in order to avail himself of a variance between the proof and the declaration in a court of review, must show from the record that the alleged variance was specifically called to the attention of the trial court, so that thereby the opposite party can have an opportunity to amend his pleading.</p> <p>6. Evidence, § 160*—inadmissibility of as to offer of compromise. Negotiations or an offer of compromise are inadmissible in evidence.</p> <p>7. Workmen’s Compensation Act, § 2*—when not error to permit proof of substance of notice of rejection of. In an action by a servant against his master for personal injuries, it is not error to permit plaintiff to prove the substance of the notice posted by defendant at its working place, to the effect that it had elected not to be governed by the Workmen’s Compensation Act, where a certified copy of the notice filed by the employer with the Industrial Board of election not to pay compensation under the act has been given in evidence.</p> <p>8. Workmen’s Compensation Act, § 2*—when .election of employer not to be bound by is shown. The election of an employer not to be governed by the provisions of the Workmen’s Compensation Act is shown by a certified copy of the notice of the employer not to be governed by the act filed with the Industrial Board and the testimony of plaintiff as to the substance of the notice posted by the employer at the working place, after refusal of the employer to produce the original.</p> <p>9. Workmen’s Compensation Act, § 2*—when defendant may not complain of introduction of parol evidence as to contents of notice. The defendant, in an action by an employee for personal injuries, cannot complain of the ruling of the trial court in permitting the introduction of parol evidence as to the contents of a notice by an employer posted at its working place of its election not to be governed by the provisions of the Workmen’s Compensation Act, where it fails, after due notice before trial, to produce the original notice.</p> <p>10. Damages, § 200*—when instruction on in action for personal injuries is not erroneous. In an action for damages for personal injuries, an instruction that in case the jury found the issues for plaintiff then, in assessing the damages, they might take into consideration the nature and extent of the injury, together with the probable duration thereof, if any, shown by the evidence, the plaintiff’s pain and suffering, if any, shown by the evidence, his loss of time and earnings during his sickness and disability to work, if shown by the evidence, is proper and is not- erroneous on the ground that it does not require the jury to find the issues from a preponderance of the evidence.</p> <p>11. Workmen’s Compensation Act, § 12*—when instruction on contributory negligence is properly refused. In an action by an employee against his employer, who has elected not to pay compensation under the Workmen’s Compensation Act, for damages for personal injuries, an instruction on contributory negligence requested by defendant is properly refused, since by the election the employer was deprived of the defenses of contributory negligence, fellow-servant and assumed risk.</p> <p>12. Instructions, § 151*—when properly refused. It is proper to refuse requested instructions covered by the main charge.</p> <p>13. Instructions, § 18*—when properly refused. It is not error to refuse an involved and misleading instruction.</p> <p>14. Damages, § 133*—when verdict not excessive. A verdict for $1,000 for personal injuries, held not excessive where it appeared that the injury sustained was a serious one; that plaintiff was incapacitated two or three months; that two of his toes were injured and were still stiff; that he had to wear a shoe two sizes too large; that he had to wear braces to protect his foot, and there was evidence tending to show that the injury was a permanent one.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.</p>

<p>Error to the Circuit Court of Franklin county; the Hon. Junius C. Keen, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.</p>

<p>1. Negligence, § 23*—who is mere licensee. A city fireman who enters, as authorized by law, upon the leased premises of an electric light company for the purpose of ascertaining if there is a fire in the transformer building is a mere licensee and the lessee owes him no duty except not to wilfully injure him.</p> <p>2. Negligence, § 120*—what must be alleged and proved in action for negligent death of licensee. In an action to recover for the negligent death of a licensee upon the leased premises of another, in order to recover on a charge of negligence, it is necessary to aver and prove the existence of a duty on the part of defendant to protect plaintiff from the injury of which he complains, a failure of defendant to prevent that injury, and an injury to the plaintiff resulting from such failure.</p> <p>3. Appeal and ebbob, § 1184*—when declaration not aided by verdict. Whenever a declaration fails to state a cause of action for . negligence it is not aided hy verdict, and the question may he raised on appeal.</p> <p>4. Negligence, § 120*—when declaration in action for death of city fireman is insufficient. A declaration, in an action for the negligent death of a city fireman, due to an electric shock from a chain on the door of a transformer house occupied by defendant on leased ground, while deceased was investigating a fire, which fails to charge that deceased went upon the premises of defendant at its invitation, is insufficient to sustain a judgment for negligence.</p> <p>5. Negligence, § 188*—when contributory of fireman touching chain on door of electric transformer house shown. In an action against an electric light and power company to recover for the death of a fireman due to electrocution and caused by his touching a chain locking the door of defendant’s transformer house while investigating a fire, evidence held to show that deceased was guilty of contributory negligence.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Lotus Bernreuteb, Judge, presiding.</p>

<p>1. Workmen’s Compensation Act, § 3*—what constitutes extra-hazardous business of loading and unloading in connection with carriage by land. A tie company which maintains a spur track upon which cars are placed by a railroad company for the purpose of being loaded with railroad ties at the time of an injury to an employee engaged in loading a car by the moving of a train on the spur track, is engaged in the • extrahazardous business of “loading and unloading” in connection with “carriage by land” within section 3 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. 1f 5475(3)], so as to he conclusively presumed to have elected to pay compensation under the act, unless it has filed its election not to do so with the Industrial Board as provided by law.</p> <p>2. Workmen’s Compensation Act, § 11*-—what constitutes injury arising out of and in course of employment of one loading ties on railroad car. An injury received by an employee of a tie company, due to the movement of a train of cars by a railroad company on a spur track against a car such employee is loading with ties to he moved by the railroad company, is an injury arising out of and in the course of his employment within the Workmen’s Compensation Act.</p> <p>3. 'Workmen’s Compensation Act, § 12*—what is essential allegation in action at common law by employee for personal injuries. In an action at common law by an employee of a tie company against a railroad company for personal injuries, due to the negligence of the latter company in movement of its cars while plaintiff was loading a car with ties to be transported by defendant, an allegation that plaintiff’s employer and defendant had elected not to he hound by the provisions of the Workmen’s Compensation Act is essential.</p> <p>4. Workmen’s Compensation Act, § 2*—what constitutes an adoption of by those engaged in extrahazardous occupations. Under section 3 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. If 5475(3)], all employers and employees engaged in extrahazardous occupations come within the act automatically unless they reject the provisions thereof in the manner required by law, and their failure to so reject the provisions of the act is of itself an adoption of the same.</p> <p>5. Workmen’s Compensation Act, § 18*—when no right of action lies against negligent third person. Section 6 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. j[ 5475(6)], providing that “no common law or statutory right to recover damages for injury or death sustained by any employee while engaged in' the line of his duty as such employee other than the compensation herein provided shall he available to any employee who is covered by the provisions of this act,” etc., and section 29 [Callaghan’s 1916 St. Supp. 1[ 5475(29)], relating to actions against third persons whose negligence causes the injury to employees, must be construed together, and, as so construed, to mean that no common-law or statutory right to recover damages for an accidental injury shall be available to any employee, either against his employer or against any third person whose negligence may have caused the injury, where such person had also elected to be bound by the act, the employer in such case being subrogated to the right of the employee or his personal representative to recover, and the amount of recovery being limited to the aggregate amount of compensation payable under the act.</p>

<p>Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. Geobqe A. Crow, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 204*—when refusal to direct verdict for defendant is not error. It is not error, in a negligence action, to refuse to direct a verdict for a defendant where the evidence of plaintiff, with the inferences reasonably to be drawn therefrom, fairly tends to prove the averments of his declaration.</p> <p>2. Municipal corporations, § 90*—when discriminatory railroad speed ordinance not void in its entirety. A city ordinance relating to the speed at which trains shall be operated through the city, and containing a proviso that a certain railroad company may run its trains in one direction at a greater speed, is not void in its entirety, even if the proviso is void because discriminatory in effect.</p> <p>3. Railroads, § 740*—when negligence of railroad company in injuring pedestrian at crossing is question for jury. In an action by a pedestrian against a railroad company to recover damages for personal injuries received as the result of being struck by defendant’s train, at a crossing, held, on conflicting evidence as to whether any warning was given and as to the speed of the train, that it was a question for the jury whether defendant was guilty of negligence and whether such negligence was the proximate cause of the injury to plaintiff.</p> <p>4. Railroads, § 754*—when contributory negligence of person approaching crossing is question for jury. It is usually a question for the jury, in view of all the surrounding circumstances, whether the failure to look and listen upon approaching a railroad crossing constitutes contributory negligence.</p> <p>5. Railroads, § 752*—when contributory negligence of person approaching railroad crossing is question for jury. In an action by a pedestrian to recover for personal injuries received as the result of being struck by defendant’s train at a crossing, where it appeared that four railroads, using about twelve tracks, passed over a street crossing; that defendant’s tracks were the third removed from plaintiff as he approached the crossing; that as plaintiff approached the track of the second railroad nearest the first track of defendant he saw a train coming on such track of the second railroad and waited for it to pass; that such train made the air more or less smoky, it being dark at the time, and the evidence tended to prove that defendant’s engine at the time plaintiff stepped on defendant’s first track was backing at the rate of ten or eleven miles per hour without ringing a bell or sounding a whistle, and that plaintiff’s attention was more or less distracted by the train that had passed, it was a question for the jury whether plaintiff was guilty of contributory negligence.</p> <p>6. Instructions, § 135*-—when error in instruction on damages may not be complained of. A defendant in a negligence case cannot complain of error in an instruction on damages where it tenders no instruction in reference thereto.</p> <p>7. Instructions, § 151*—when refusal not error. It is not error to refuse requested instructions covered by the main charge.</p> <p>8. Pleading, § 449*—what is sufficient as basis for verdict. One good count in a declaration supported by the evidence is sufficient on which to base a verdict.</p> <p>9. Damages, § 128*—when verdict for personal injuries is not excessive. A verdict for $4,300 for the loss of the right foot of plaintiff, held not excessive, it appearing that plaintiff was confined to a hospital for some considerable time, was wholly incapacitated for several months, and his earning capacity seriously diminished.</p> <p>10. Appeal and erbob, § 1712*—when assignments of error deemed abandoned. Assignments of error not argued are deemed to have been abandoned.</p>

<p>Abstract of the Decision.</p> <p>1. Creditors’ suit, § 56*—when shown that wife acquired title to property through partition of father's estate. On a creditor’s bill by creditors of a husband to subject to payment of judgments against him land quitclaimed by both husband and wife, to the latter before the rendition of such judgments, evidence held sufficient to show that the wife acquired title to the land by inheritance from her father and through a conveyance from her brothers in a partition of her father’s estate by the heirs.</p> <p>2. Creditors’ suit, § 56*—when shown that quitclaim deed by husband to wife was not made to hinder, delay and defraud creditors of husband. On a creditor’s bill by creditors of a husband to subject to payment of judgments against him land quitclaimed by both husband and wife to the latter before the rendition of such judgments, evidence held sufficient to show that although a deed was made by heirs of the estate of the wife’s father, in the course of a partition of the estate in the name of the husband, it was the intention of the parties that the fee should rest in the wife and that a subsequent quitclaim deed made by the husband and wife to the latter before the rendition of judgments against the husband was not made to hinder, delay and defraud creditors, but was made to effectuate such intention.</p> <p>■3. Equity, § 313*—what is weight and effect of sworn answer. Where a sworn answer is required and filed denying the material allegations of a bill, it is evidence for the defendant of such force that the complainant can have no decree against him until the same is disproved by evidence amounting to that of one witness and in addition thereto a preponderance of proofs sufficient to have sustained the bill if the oath to the answer had been waived.</p> <p>4. Equity, § 313*-—when evidence is insufficient to overcome sworn answer. On a creditor’s bill to subject to the husband’s debts, land conveyed by a husband and wife to the latter, evidence held insufficient to overcome the sworn answer of the defendants.</p>

<p>1. Estoppel, § 33*—when grantees at execution sale of mortgaged premises are estopped to insist that mortgagors were not owners of premises. The grantors in a deed expressly subject to a mortgage, who execute the mortgage on the premises as owners and warrant the title in fee simple in making the mortgage, cannot insist, so far as the holder of the mortgage is concerned, that they are not the owners of the premises and as such authorized to execute the mortgage, and one acquiring title to the property through execution sale against the grantee is equally estopped.</p> <p>2. Mortgages, § 226*—when presumed that grantee included mortgage debt in purchase price. A grantee who takes a conveyance subject to a mortgage is presumed to have included the mortgage debt in the purchase price, and is not permitted to dispute the validity of the mortgage, being in such respect in the same position as one who expressly assumes the mortgage.</p> <p>3. Equity, § 115*—when trustees may not complain that eestuis que trust were not parties to hill for foreclosure. On a bill to strictly foreclose a mortgage given by trustees of an estate, held that defendants could not complain that the eestuis que trust were not made parties where they had opportunity in their cross-bill to make them parties and failed to do so.</p>

<p>Appeal from the Circuit Court of Clay county; the Hon. J. L. Boyles, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Principal and agent, § 179*—when rule that undisclosed principal must enforce contract as whole is inapplicable. The rule that an undisclosed principal endeavoring to enforce the contract of his agent made with one ignorant of the agency must enforce it as a whole and subject to every defense which existed against the agent has no application where the right of recovery is not predicated upon the contract made by the agent with the third person.</p> <p>2. Principal and agent, § 111*—when third person may retain threshed grain for services. One cutting and threshing grain for another under agreement with an authorized agent of the owner may retain the grain until paid for his services.</p> <p>3. Trover and conversion, § 38*—when defendant holding threshed grain may show agreement for threshing and for payment of debt of owner of land out of grain. Where, in an action of trover for the conversion of wheat, plaintiff claimed that under an agreement with his father that the crop was to be his, he sowed the wheat on land owned by his father, and the latter was permitted to testify to a contract with defendant for the cutting and threshing of the grain by defendant, it was error to exclude evidence by the latter that, upon the repetition of the contract in the presence of plaintiff, defendant agreed to care for and thresh the wheat if a debt owed by the father to defendant would be paid out of the wheat, and the amount of such indebtedness, since defendant was entitled to present his version of the contract.</p>

<p>1. Master and servant, § 709*—when negligence in failing to provide reasonably safe tools and appliances is question for jury. In an action for injuries to a machinist’s helper, caused by the rebounding of a wedge upon being struck by a sledge hammer wielded by plaintiff, evidence that the wedge was not equipped with a handle and the danger of its rebounding was increased by the elasticity of the metal upon which it was being used, coupled with evidence of other practicable and safer methods of doing the work, presented a question for the jury as to defendant’s negligence in failing to furnish reasonably safe tools and appliances for doing the work.</p> <p>2. Workmen’s Compensation Act, § 2*—what is effect of rejection of act by employer engaged in extrahazardous employment. A machinist’s helper or “top man” in a mine, injured by the rebounding of a wedge while repairing a hoisting engine used in raising coal from defendant’s mine, is engaged in extrahazardous employment of mining within the Workmen’s Compensation Act, and hence where the employer rejected the act it is deprived of the defenses of contributory negligence, assumed risk and fellow-servant relation.</p> <p>3. Workmen’s Compensation Act, § 2*—when defense of assumed risk may not be interposed by employer rejecting. The defense of assumed risk cannot be interposed in favor of an employer engaged in an extrahazardous employment who had rejected the Workmen’s Compensation Act against an employee injured by the rebounding of a wedge on being struck by a sledge hammer, under a contention that notwithstanding the rejection of the act an employer ‘is not deprived of the defense that the employee assumed the risk and dangers of which he knew, or of which he ought to have known by the exercise of ordinary care.</p> <p>4. EtiDEi¡rcE, § 428*—when witness qualified to testify as expert upon question involved in injury by rebounding of wedge in cutting steel. A witness testifying as an expert who had been employed in defendant’s mine, and who had had more or less experience during that time in connection with the work of machinist, is sufficiently qualified to testify as an expert upon the question involved in the injury of an employee by the rebounding of a wedge used in cutting steel, although he had had nothing to do with cutting steel, the character of his experience going only to the credibility and weight to be given his testimony.</p> <p>5. Trial, § 304*—when propositions of law are properly refused. Propositions of law, general in character, to the effect that plaintiff cannot recover on his declaration or on certain counts, or that defendant was not guilty of the negligence charged, are properly refused.</p> <p>6. Trial, § 302*—when proposition of law in action for personal injuries is properly modified. In an action to recover for injuries sustained by the rebounding of a wedge, a proposition of law: “That if the use of the chisel which was used by plaintiff in the work in question was proper and such chisel was a usual, customary and proper instrument to be used in such work, then the plaintiff cannot recover in this case," is properly modified to read: “That if the use of the wedge which was used by plaintiff, in the manner in which it was used in the 'work in question was proper, and such wedge, as used, was a usual, customary and proper instrument to be used in such work, then the plaintiff cannot recover in this case.”</p> <p>7. Trial, § 304*—when proposition of law in action for personal injuries is properly refused. In an action to recover for injuries sustained by an employee by the rebounding of a wedge upon being struck by a sledge, a proposition of law “That if the defendant exercised reasonable care in choosing reasonably safe tools and instruments to do the work in question and in using the wedges in question for the purposes for which they were used, and that in using the same the defendant could not reasonably anticipate that a person using the wedge would be injured as plaintiff was injured, then the plaintiff cannot recover,” is properly refused as limiting the manner in which plaintiff was injured instead of being broad enough to include injuries from its use in and about the work generally.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 256*—when verbal promises and agreements are merged in written contract. In the absence of fraud, verbal promises and agreements made during negotiations leading up to the execution of a written contract become merged in the written contract</p> <p>2. Vendor and purchaser—what is binding contract for resale of land for purchaser. A contract between representatives of the vendor of land and the purchaser after the execution of the contract of purchase, in which such representatives agree to use their best efforts to resell the land within a certain period, such purchaser to share in the profits, if any, and failing in their efforts to sell within such period to take the land off the purchaser’s hands, to refund the portion of the purchase price represented by a mortgage given by the purchaser to the vendor, and to assume his- obligations under the contract with the vendor, constitutes a valid and binding contract.</p> <p>3. Vendor and purchaser—when release of vendor from contract for resale of land shown. On a bill for specific performance, evidence held sufficient to sustain the chancellor’s findings that complainant had released and discharged defendants from all obligation under a contract wherein they agreed to resell certain land for complainant within a specified time, and failing in that to take the land off his hands and to assume his obligations, after reimbursing him to the extent of the security given by him for the purchase price.</p> <p>4. Evidence, § 364*—-what may be shown by parol. A release or discharge from an obligation under a contract to sell land may be shown by parol.</p>

<p>Appeal from the City Court of Benton; the Hon. R. E. Hickman, Judge, presiding.</p>

<p>1. Railroads, § 350*—when damage to crops by flood shown. In an action by one as owner of certain land and as tenant of other land to recover damages for the overflowing of land occupied by him, alleged to be due to the construction of a railroad embankment across a river valley without leaving sufficient outlets, evidence held to sufficiently show that plaintiff’s crops were damaged hy water flooding his lands.</p> <p>2. Railroads, § 349*—what is question for jury in action to recover for damage to crops because of flooding of land. In an action by one as owner of certain land and as tenant of other land to recover damages for injury to his crops hy overflow alleged to be due to the construction of a railroad embankment by defendant across a river valley without leaving sufficient outlets, it was a Question of fact for the jury whether such overflow was due wholly to such an extraordinary flood as ordinary prudence could not have anticipated, or wholly to defendant’s defective construction of its bridges and embankments, or both causes.</p> <p>3. Railroads, § 330*—what is duty of railroad company as to outlets for floods through railroad embankment. It is the duty of a railroad company, in constructing an embankment and bridges for its right of way over a river valley, to provide ample outlets for the waters of such floods or freshets as men of ordinary prudence could have foreseen, but not against the waters of such extraordinary floods as could not have been reasonably anticipated.</p> <p>4. Railroads, § 349*—what- are questions for jury in action against railroad for injury to crops because of flooding of land. The Questions as to what was an extraordinary flood in a particular river valley and whether the rain which caused injury to the crops of a person near a railroad embankment across the valley was an extraordinary flood, were questions for the jury, in an action against the railroad company for injury to plaintiff’s crops because of insufficient outlets in the embankment.</p> <p>5. Railroads, § 330*—when duty of railroad obstructing flow'of water of river to provide against extraordinary rainfalls. Although a rainfall may be extraordinary, yet if it be such as has occasionally occurred, even though at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of a railroad company which changes the course of a river or obstructs the flow of water by changes in its embankment across a river valley to provide against the consequence of such a rainfall.</p> <p>6. Railroads, § 350*—when overflow of land shówn to be due to construction of railroad embankment and defective outlets. In an action by one as owner of certain land and as tenant of other land to recover for injury to his crops as the result of a flood, evidence held sufficient to sustain a finding that the overflowing of plaintiff’s lands was caused by defendant’s embankment over the river valley and by its defective construction of outlets through such embankment.</p> <p>7. » Railroads, § 334*—when railroad constructing embankment over river valley liable for injury to crops by flood. Even though the rainfall of a particular year is unprecedented, yet if the act of the railroad company in constructing an embankment over the river valley and its bridges contributed together with an unprecedented flow of waters in the river to the flooding of land and injury to crops of one near the river valley and embankment, the railroad company would be liable for the injury caused thereby.</p> <p>8. Instructions, § 159*—consideration as a series. ■ Any inaccuracy in a particular instruction cannot be complained of where all of the instructions, when considered together with the allegations of the pleadings and proofs in the case, fairly state the law.</p> <p>9. Instructions, § 158*—how must be considered. Instructions must be considered in the light of the allegations of the pleadings and proofs in the case.</p> <p>10. Railroads, § 352*—when instructions ip action against railroad company for injury to crops because of overflowing of land are correct. In an action by one as owner of certain land and as tenant of other land to recover damages for injury to crops because of the overflowing of his land due to the construction of a railroad embankment over a river valley with insufficient outlets, held that the instructions, considered as a series, correctly stated the principles of law applicable to the case.</p> <p>11. Railroads, § 315*—what are rights of railroad company as to change of channel of stream. Although a railroad company which has constructed an embankment on its right of way 'across a river valley has the right to change the channel of the river upon its right of way by straightening it out, yet in making such change it has no right to obstruct or in any way interfere with the flow of water.</p> <p>12. Railroads, § 342*—when successive recoveries may be had for successive injuries by overflow of land due to construction of road across stream. The duty of a railroad company to so construct and maintain its road across a stream as not to injure adjacent land by throwing water back upon it is a continuing one, and each overflow resulting from a neglect of that duty creates a new cause of action for any injury thereby occasioned to the crops and land, and successive recoveries may be had for successive injuries caused by such negligence.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Louts Bernreuter, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. P. Gillham, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Massac county; the Hon. Robert T. Cook, Judge, presiding.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding.</p>

<p>1. Railroads and bridges, § 21*—when presumed that way over railroad was used as public street. Proof that a way over a railroad in a city was platted as a street; that although the crossing was not planked as other streets for the use of teams and vehicles, it had been in constant use for 40 years by persons traveling across the railroad at such point and occasionally by vehicles; that it was recognized as a street by the city by the enactment of an ordinance requiring a watchman at such point, and that the railroad maintained a watchman there for a number of years but the practice had been discontinued prior to the injury to plaintiff—a child, who used the way in going to and from school—by one of defendant’s trains, raised a presumption that, the way was a public street.</p> <p>2. Railroads, § 703*—when violation of speed ordinances creates prima facie ease of negligence. Proof that a railroad train is run at a rate of speed in violation of city ordinances, when it strikes a 6-year-old child at a point used in crossing the tracks by the public for such a period as to raise the presumption that it is a public street, creates a prima facie case of negligence, if such violation caused the injury.</p> <p>3. Railroads, § 750*—when question for fury whether violation of speed ordinances in operation of train caused injury to plaintiff. In an action against a railroad company to recover for the negligent injury of a child at a place used as a crossing and claimed to be a public street, held that it was a question for the jury whether the violation of speed ordinances caused the injury to plaintiff.</p>