Volume 211 — Illinois Appellate Court Reports

<p>1. Appeal and ebbob, § 1712* — when assignments of error deemed toaived. Assignments of error may be considered as waived, if not argued.</p> <p>2. Workmen’s Compensation Act, § 2* — what is effect of rejection of by employer. An employer who elects not to accept the provisions of the Workmen’s Compensation Act forfeits his right to interpose the common-law defense of assumed risk.</p> <p>3. Workmen’s Compensation Act, § 12* — when instruction on assumption of risk is properly refused. In an action against an employer, who had elected not to accept the Workmen’s Compensation Act, to recover for injuries to an employee received by the falling of the roof in defendant’s mine, it is not error to refuse to give instructions which, in substance, advise the jury that if plaintiff knew of the dangerous condition of the roof he could not recover.</p> <p>4. Master and servant, § 537* — what declaration in action for personal injuries should state as to duty of master. In an action to recover for personal injuries to an employee, it is not necessary or even sufficient for the declaration to allege that it was defendant’s duty to do certain things, but it must state a condition of things from which the law will raise the duty.</p> <p>5. Master and servant, § 123* — what is duty as to providing safe place to work. It is the duty of an employer to use reasonable care to provide his employees a reasonably safe place in which to work.</p> <p>6. Mines and minerals, § 141* — when declaration sufficiently alleges facts from which duty to use reasonable care to furnish safe place to work will arise. In an action by an employee to recover for personal injuries received through the fall of the roof of a mine room in which he was working, a count in the declaration which alleges defendant’s ownership and operation in the mine, plaintiff’s employment as defendant’s employee in the room of the mine, that the roof of the room was in a dangerous condition, that defendant knew or, by the exercise of ordinary diligence, could have known of such condition, and that it knew that plaintiff was employed in such room, shows facts from which the law will impose upon defendant the duty to use reasonable care to furnish plaintiff a safe place to work, and further allegations that it was defendant’s duty to notify plaintiff of the dangerous condition of the roof and that it did not perform such duty may be disregarded as surplusage.</p> <p>7. Pleading, § 441* — what averments of declaration must be proven. Plaintiff is required to prove only such of the material averments of his declaration as are sufficient to make a case.</p> <p>8. Masteb and sebvant, § 537* — what must be averred in action by employee for personal injuries. In an action by an employee to recover for personal injuries, it is necessary to aver three elements to state a cause of action: (1) The existence of a state of facts from which the law will raise a duty on defendant’s part to protect plaintiff; (2) defendant’s failure to perform such duty; (3) an injury to plaintiff resulting from the failure.</p> <p>9. Masteb and sebvant, § 538* — when declaration states cause of action for failure to furnish safe place to work. In an action by an employee to. recover for personal injuries, where the material facts alleged in the declaration show the existence of a duty on defendant’s part to use reasonable care to furnish plaintiff a safe place to work, defendant’s failure to do so and a resultant injury to plaintiff, a cause of action is stated, even though the statement of the facts is defective.</p> <p>10. Limitation oe actions, § 58* — when subsequent amendments to declaration not barred. If an original declaration is filed in apt time stating a cause of action, even though defectively or imperfectly, subsequent amendments, though filed after the statute of limitations has run, will not be barred thereby if they amount to no more than a restatement, in a different or better form, of the cause of action originally declared upon.</p> <p>11. Mines and minebals, § 185* — when peremptory instruction for defendant in action for personal injuries to miner through fall of roof in mine is properly refused. In an action by an employee to recover for personal injuries received through the falling of the roof of a room in the mine, where the only negligence charged and the only question for the jury is that defendant permitted plaintiff to work under a dangerous roof and defendant offers no evidence, while plaintiff and two others testify to the dangerous condition of the roof for one or two days before it fell and another witness as to its condition at and qfter the accident, it is not error to refuse a peremptory instruction for defendant.</p>

<p>1. Workmen’s Compensation Act, § 12* — when general demurrer to special plea in action for personal injuries is improperly sustained. In an action by an employee of an electrical contractor against a railway company to recover for injuries received through colliding with defendant’s car as plaintiff was driving his employer’s wagon back to the latter’s shop after making a delivery for him, it is error to sustain a general demurrer to a special plea setting up, in substance, that both defendant and plaintiff’s employer had, prior to the injury, elected to accept the provisions of the Workmen’s Compensation Act of 1918 [Callaghan’s 1916 St. Supp. If 5475(1) et seg.], that plaintiff’s injuries were accidental and arose out of and in the course of his employment and not through the negligence of his employer or coemployees but under circumstances creating a legal liability for damages in defendant, and that by virtue of the act the right of plaintiff to maintain an action has been subrogated to his employer.</p> <p>2. Workmen’s Compensation Act, § 11* — what constitutes accident arising out of and in course of employment of driver of wagon. An employee of one conducting a business falling within the Workmen’s Compensátion Act of 1913 [Callaghan’s 1916 St. Supp. If 5475(1) et seg.], is injured by an accident arising out of and in the course of his employment, where the injury was received as he was driving his employer’s wagon back to the place of employment after making a delivery for the employer.</p> <p>3. Workmen’s Compensation Act, § 11*- — when employee protected by. The Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. jf 5475(1) et seg.] applies to injuries received by the employee of an electrical contractor even though, at the time they were received, the employee was not actually doing electrical work, but was driving the employer’s wagon back to his shop after making a delivery for him.</p> <p>4. Appeal and error, § 1097* — when appellee allowed to file brief nunc pro tunc. The Appellate Court will, in its discretion, grant the motion of an appellee who has failed to file his brief in time to be allowed to file it nunc pro tunc.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1917.</p>

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

<p>Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1917.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gielham, Judge, presiding. Heard in this court at the October term, 1917.</p>

<p>1. Justices of the peace, § 172*— when appeal cannot he prosecuted. No appeal can be prosecuted from a verdict before a justice of the peace until the justice has rendered judgment on such verdict, and a court to which an appeal is taken before such entry of judgment acquires no jurisdiction.</p> <p>2. Justices of the peace, § 106* — necessity of judgment and requirements of. While the entry of a judgment by a justice of the peace on a verdict returned in his court is merely a clerical act and requires no formal words, a judgment of some description must be entered.</p> <p>3. Justices of the peace, § 218* — when appeal dismissed on motion. Where an appeal is taken to a Circuit Court from a verdict before a justice of the peace on which no judgment has been entered, it will be dismissed on motion.</p> <p>4. Justices of the peace — when objection to jurisdiction of Circuit Court on appeal cannot be raised after verdict. Where an appeal is taken from a verdict before a justice of the peace to the Circuit Court, in an action of the subject-matter of which the latter court has original jurisdiction and no objection is made that no judgment was entered by the justice, but both parties appear and proceed to trial, objection to the jurisdiction of the Circuit Court on the ground that no judgment was entered by the justice cannot be raised after verdict in the Circuit Court.</p>

<p>1. Exectjtobs and administratobs, § 577* — when funis remaining in hands of ancillary administrator should be paid to domiciliary administrator. Funds remaining in the hands of an ancillary administrator after the payment of all claims should be paid to the domiciliary administrator for distribution, especially where all of the heirs, devisees and legatees live in the State of the domicile, and it is no substantial objection to such transfer that the estate will be subjected thereby to the further, payment of costs and commissions.</p> <p>2. Executors and administrators, § 350* — when order of Circuit Court on appeal as to disposition and distribution of funds of estate is not void because not final. An order of the Circuit Court, entered on an appeal from the Probate Court, which directs the disposition of funds of an estate and that such funds be retained in another manner than the Probate Court had directed until further order of the latter court, and that the funds be distributed by a certain person when distribution should be ordered by the Probate Court, is not void as not being in effect a final order.</p>

<p>1. Sanitary districts — what is duty of in constructing levee and canal and changing watercourse. A levee and sanitary district has power to construct a levee and canal whereby the course of a watercourse is changed, but must exercise this power in such a manner as not to obstruct or retard the natural flow of the water and not to throw or hold it back upon adjacent land to the damage thereof.</p> <p>2. Sanitary districts — what is duty as to restoring changed stream, to former or useful state. The duty of one interfering with the flow of water in a stream to restore the stream to its former state or so restore it as not to impair its usefulness rests with the same force on a municipal corporation, such as a levee and sanitary district, as it does on an individual.</p> <p>3. Action, § 61* — when only one recovery may he had for damages for construction of improvement on land. Damages resulting from the construction of a permanent and lawful improvement accrue at the time of the construction and there can be only one recovery therefor, the measure being the depreciation of the market value of the land.</p> <p>4. Action, § 61* — when successive actions may he maintained for negligent erection of structure. Where a structure, though permanent and lawful, is negligently or defectively constructed, it constitutes a continuing nuisance, and each injury occasioned by it creates a new cause of action and successive recoveries may be had for the successive injuries caused by it.</p> <p>5. Sanitary districts, § 12* — when right of action for construction of levee and canal lies in favor of adjacent landowner. Where none of the land of an adjacent owner is taken for the construction of a levee and canal, such owner has no right of action because of their construction until he has sustained damage, in which event he may recover for such damage.</p> <p>6. Sanitary districts, § 13a* — what duty imposed upon as to disposal of water to prevent overflow hy construction of levee and canal. It is the duty of a sanitary district constructing a levee and canal for the purpose of changing the course of a stream to make provision for disposing of the water which escapes from the stream in time of overflow, the same duty being imposed in this respect with regard to surface water, channel water and overflow or flood water.</p> <p>7. Sanitary districts, § 13a* — what floods must be guarded against in constructing levee and canal to divert watercourse. A sanitary district in constructing a levee and canal to divert a watercourse is required to provide an outlet for only the. waters of such floods or freshets as men of ordinary prudence could have foreseen, which includes the necessity of providing against a rainfall which is greater than ordinary.</p> <p>8. Sanitary districts — what are questions for jury in action to recover damages for overflow due to negligent construction of levee and canal-. In an action against a sanitary district to recover damages alleged to have been caused by the negligent and defective construction of a levee and canal whereby plaintiff’s land was overflowed, the questions whether the overflow was due to defendant’s alleged negligence in constructing the levee and canal or to such an extraordinary flood as ordinary prudence could not have anticipated, and whether the rainfall causing the overflow was an extraordinary flood in the locality, are for the jury.</p> <p>9. Sanitary districts, § 17* — when evidence supports verdict for plaintiff in action for negligence causing flooding of land. In an action against a levee and sanitary district to recover for damages by the flooding of land, alleged to have been caused by defendant’s negligent and defective construction of a levee and canal, evidence held sufficient to support a verdict for plaintiff.</p> <p>10. Sanitary districts, § 17* — when evidence as to other obstructions in stream below defendant’s is inadmissible in action for damages for flooding land. Where the declaration, in an action against a sanitary district to recover for damage to land by flooding, alleges that the injury was caused by defendant’s unlawfully obstructing or retarding the flow of water, it is not error to refuse to permit defendant to show the location and character of other obstructions further down the stream than defendant’s obstruction, where there is nothing in the case warranting the admission of the evidence in mitigation of damages.</p>

<p>Appeal from the Circuit Court of Randolph county; the Hon. Lotus Beeneettiei!, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Jefferson county; the Hon. J. C. Eaeleton, Judge, presiding. Heard in this court at the October term, 1917.</p>

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

<p>Error to the Circuit Court of Madison county; the Hon. Louis Bbrnbeuter, Judge, presiding. Heard in this court at the October term, 1917.</p>

<p>1. Mandamus, § 1* — nature of writ of. The writ of mandamus is not a writ of right.</p> <p>2. Railroads, § 278* — when railroad company not compelled to erect overhead crossing to connect farms. Where, • on a petition for a writ of mandamus to compel a railroad company to erect an overhead crossing to connect two farms at a certain point, the undisputed evidence is that owing to the curve in the track and the height of the embankment at such point, such a crossing will constitute a danger to public travel and to persons crossing the track, the petition for the writ should be denied, especially Where the benefits accruing from the crossing will not be proportionate to the increased danger.</p> <p>3. Railroads, § 267* — what considered in determining question of compelling erection of farm crossing. The existence of other places of crossing the track and the proportion between the cost to the railroad company and the benefit to the property owner are to be considered, in determining whether a railroad company will be required to erect a farm crossing at a particular point.</p> <p>4. Railroads, § 267* — when company not compelled to erect farm crossing. A railroad company will not be compelled to erect a farm crossing where the property owner can avail himself of crossings at other points and the cost to the railroad company of erecting a safe crossing at the point will far exceed the benefits which will accrue to the property owner from the crossing.</p> <p>5. Railroads, § 278* — what presumption as to payment for inconvenience due to right of way considered in proceedings to compel erection of farm crossing. Where a farm owner sold a right of way through his land to a railway company, it is presumed that allowance was made and paid at the time for inconvenience which might arise through the interference with passing from one part of the farm to the other, and this presumption, while not conclusive, will be considered on a subsequent petition by the property owner for a writ of mandamus to compel the railroad company to erect a farm crossing.</p> <p>6. Railroads, § 267* — what is nature of right to farm crossing and what considered in determining whether building granted. The right to a farm crossing given by the statute (J. & A. if 8811) is not absolute, but in determining whether or not the building of such a crossing will be granted, the court should take into consideration the danger to public travel, the expense of erecting the crossing, the necessity for a crossing and the benefits which will accrue from it.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 176* — when verdict for death of mine laborer struck by crossbar in roof while riding on car is not against weight of evidence. In an action to recover for the death of a mine employee, alleged to have been caused by his head striking a crossbar supporting the roof as he was driving a loaded box in the performance of his duties, where the evidence shows that the point at which the accident occurred was dark and that the crossbar could not be observed except by the aid of the cap light of deceased, which gave little light, and could not be seen until right on it; that there was nothing to advise of the approach to this point and that the roof up to the point was level and there formed an abrupt set-off; that the deceased and others were in the habit of riding sideways on the boxes; that the seat was 3 feet from the crossbar; that a bruise was found on the side of his head; that hair the color of his was on the crossbar, and there is evidence tending to show that-he had been struck very near the crossbar, it cannot be said that a verdict for plaintiff was against the weight of the evidence.</p> <p>2. Mines and minerals, § 182* — when question for jury whether mine is safe for employee riding on car. In an action to recover for the death of a mine employee, alleged to have been caused by his head striking a crossbar supporting the roof, it cannot be said as a matter of law that the place was reasonably safe where it appears that at that point the roof, which was level up to there, became abruptly 6 inches lower, that the point was dark, the nearest light being 90 feet away, and that the roof was only 3 feet above the seat on which deceased and other drivers were accustomed to ride, but the question whether such place was reasonably safe is for the jury.</p>

<p>Abstract of the Decision.</p> <p>1. Witnesses, § 290* — when party not bound by conclusions of witness. A party is not bound by the conclusions of adverse parties who are called as witnesses in its behalf.</p> <p>2. Fe.atjduuent conveyances, § 58* — when husband has right to make gift of corporate stock to wife. If a husband is not indebted at the time he makes a transfer of corporate stock to his wife, or has ample property to pay what little indebtedness exists, he has a right to make a gift of such stock unless the gift is made in anticipation of committing a fraud upon creditors.</p> <p>3. Fraudulent conveyances, § 58* — what creditors may avoid transfer of corporate stock by husband to wife. Only creditors having claims when a fraud is committed by a husband in making a transfer of stock to his wife can avoid the conveyance, unless it be shown that the conveyance was made in anticipation of incurring debts, to avoid the payment of which the conveyance was made.</p> <p>4. Fraudulent conveyances, § 58* — when deemed that transfer of stock by husband to wife was not in anticipation of indebtedness. It must be deemed that the transfer of corporate stock by a husband to his wife at a time when he owed very little indebtedness was not in anticipation of indebtedness incurred only as surety for a corporation in which he was a stockholder, and two years after such transfer.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1917.</p>

<p>1. Automobiles and garages, § 3* — what evidence is inadmissible to show special agency in testing car at time of injury to third person. In an action to recover for personal injuries, sustained as the result of being struck by defendant’s automobile while it was being operated by a third person who had repaired the brakes, evidence that such third person on various occasions, ranging from one to two years prior to the injury, had been seen in company with defendant driving the latter’s car is not admissible to show a special agency for driving the car for the purpose of testing the brakes at the particular occasion of the injury.</p> <p>2. Automobiles and garages, § 3* — when special agency in testing car after maMng repairs not shown. Evidence held insufficient to establish a special agency of one engaged to repair brake bands on defendant’s automobile, which injured plaintiff, to test out the car at the time of the injury and after the brakes had been repaired by him, or to show that such person was in defendant’s employ at the time of the accident.</p>

<p>Appeal from the County Court of Jefferson county; the Hon. Robert E. Hickman, Judge, presiding. Heard in this court at the October term, 1917.</p>

<p>1. Appeal and ebbob, § 410* — when question as to who is proper party plaintiff may not be raised. The question as to the proper party plaintiff in an action may not be raised for the first time on appeal.</p> <p>2. Mechanics’ liens, § 173* — who may bring action on contractors bond given to city conditioned upon payment of claims for labor or materials. A bond given to a city by a municipal sewer construction contractor, conditioned on the payment of claims for labor and materials and providing that it shall extend to all persons who may become entitled to liens under the contract and may be sued upon by them the same as if to them in proper person, may be enforced by any person entitled to a lien.</p> <p>3. Assignments, § 2* — what is chose in action upon which suit may be brought in name of assignee. A right of action on a bond for payment for labor or materials furnished a contractor constructing a sewer for a city is a chose in action enforceable in an action on the contractor’s bond for the benefit of laborers and materialmen and, upon establishment of the lien, may be enforced by an assignee of the claim under Hurd’s Rev. St. ch. 110, sec. 18 (J. & A. 7 8555), providing that the assignee of any chose in action may sue in his own name.</p> <p>4. Mechanics’ liens, § 134* — assignability of claim on bond of city construction contractor. Under section 8 of the Mechanics’ Liens Act (J. & A. If 7146), providing that all liens or claims for liens which may arise or accrue under the terms of the act are assignable, a claim on the bond of a city construction contractor for labor performed or materials furnished such contractor is assignable.</p> <p>5. Mechanics’ liens, § 134* — when assignee of claims may join all in one claim in suit on city construction contractor’s bond. One who procures by assignment claims for labor performed and materials furnished to a contractor for a city sewer construction contract may join such accounts into one claim and maintain a single action on the contractor’s bond given to the city for the benefit of those performing labor or furnishing material to the contractor.</p> <p>6. Interest, § 8* — when due hills issued hy construction contractor hear from, date of issuance. Due bills issued by a contractor to those performing labor and furnishing material to a contractor constructing a sewer for a city, reciting that there is due4 the respective parties the amount of money stated in the respective due bills, bear interest at the rate of 5 per cent, after issuance.</p>

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

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

<p>1. Criminal law, § 95* — what is effect on judgment of trial of case without plea. The trial of a criminal case for assault with a deadly weapon without the entry of a plea by the defendant is a nullity.</p> <p>2. Criminal law, § 95* — when entry of plea essential. Under J. & A. If 4120’, relating to the entry of a plea of not guilty upon arraignment of accused in a criminal case, and the formation of an issue in such manner, a plea is essential in the case of a misdemeanor as well as in the case of a felony.</p> <p>3. Criminal law — what is not waiver of plea. Proceeding with the trial of a criminal prosecution for assault with a deadly weapon without the entry of a plea is not a waiver of such plea.</p>

<p>' Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1917.</p>

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

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 227* — when shown that sale of liquor was made by defendant saloon keepers to father and husband of respective plaintiffs. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the husband and father of the respective plaintiffs, and consequent insanity, evidence held sufficient to sustain a finding that the husband and father purchased liquors at the respective places of defendants.</p> <p>2. Intoxicating liquors, § 249* — when instruction on effect of husband and father of respective plaintiffs getting intoxicated prior to time charged in declaration is not erroneous. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the husband and father of the respective plaintiffs, and consequent insanity, an instruction, referring to the intoxication of the husband prior to the date charged in the declaration as that from which his habitual intoxication began, that even though he was in the habit of becoming intoxicated prior to that date, still if defendants sold him intoxicating liquors and caused him to remain habitually intoxicated and in consequence thereof he squandered his money as charged in the declaration, that they would still be liable, was not erroneous where defendants attempted to show that he had been in the habit of getting intoxicated prior to such specified time.</p> <p>3. Intoxicating liquobs, § 249* — how instructions construed as to liability of saloon keepers for loss of support by husband and father of plaintiffs. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the husband and father of plaintiffs, and his consequent insanity, instructions examined as a series and construed as being to the effect that if defendants had sold intoxicating liquors to the husband to such an extent as to cause him to become habitually intoxicated and to cause him to become insane, by reason of which he was not able to support his family, that then plaintiffs would be entitled to recover for the loss of their means of support.</p> <p>4. Intoxicating liquobs, § 250* — when instruction on damages for loss of support of husband and father due to sale of is proper. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the husband and father of plaintiffs, and his consequent insanity, an instruction is properly given that if the jury believed from the evidence that the husband was an habitual drunkard, and the defendants, knowing him to be such, sold and gave him intoxicating liquors and caused him to remain habitually intoxicated, then such sales would be regarded in law as wilfully and wantonly made and would authorize the jury, in their sound discretion, to award plaintiffs exemplary damages in addition to actual damages, if any such damages had been proven.</p> <p>5. Intoxicating liquors, § 208* — when complaint and order summoning commissioners to inquire into sanity of person addicted to use of are inadmissible. In an action against several saloon keepers to recover damages for loss of support due to the sale of intoxicating liquors by defendants to the father and husband of the respective -plaintiffs, and his consequent insanity, the complaint whereby the husband was committed to the insane asylum and the order of the court directing the summoning of a commission to examine the husband as to insanity were inadmissible.</p> <p>6. Appeal and error, § 1489* — when erroneous admission of evidence is harmless error. The erroneous admission of improper evidence is harmless error where the facts sought to be proved are otherwise established.</p>

<p>1. Railroads, § 215* — when damages are recoverable for obstruction of access to property by construction of embankment across street. It is not essential to a right of recovery of damages by a property owner for the shutting, off of ingress. and egress to his property by the construction of a railroad embankment across a street that the lots should abut upon the obstructed street, if it appears that there is a special injury to the property, the only limitation being that this right extends at least to the next intersecting street.</p> <p>2. Railroads, § 215* — what does not affect right of recovery for loss of access to property by construction of embankment. Owners of property bordering upon a street have, as an incident of ownership, a right of access by way of the streets, which cannot be taken away or materially impaired by the construction of a railroad embankment without compensation, and it is immaterial that the damage sustained is no greater than that sustained by the owners of other lots in the neighborhood.</p> <p>3. Railroads, § 216* — when damages accrue as natural result from construction of railroad embankment. Damages accrue to some extent, as a natural result, from the construction of a railroad embankment diagonally across two streets, where, owing to a natural obstruction on one of them, access to the property is shut off in three directions and it is left in the condition of a blind court.</p> <p>4. Railroads, § 216* — what is proper basis for estimation of damages for deprival of access to property by construction of embankment. The fair cash value of property before and after the construction of a railroad embankment shutting off access by way of the streets to the property is the proper basis for estimating damages.</p> <p>5. Railroads — when comparative value of property, access to which has been shut off by embankment, is Question for jury. The question whether property, the access to which by the streets is shut off by the construction of a railroad embankment, is of equal or greater value after the erection of the embankment than before is a question for the jury, in an action to recover damages for deprival of such access.</p> <p>6. Municipal corporations, § 876* — what is essential to dedication of street. To make a sufficient dedication of a street, the owner of the soil must devote the right of way to public use, and it must be accepted and appropriated by the public to that use by travel, and a recognition as a public highway by the proper authorities, by repairs or otherwise; but when a dedication is relied upon to establish the right, the acts of both the donor and the public authorities should be unequivocal and satisfactory of the design to dedicate on the one hand and to accept and appropriate to public use on the other.</p> <p>7. Trial, § 304* — what is not improper method of indicating refusal of requested propositions of law. The refusal of propositions of law by the trial judge by taking up each one verbatim in his written opinion, commenting upon the reasons why he refuses it and at the conclusion of the comment stating that the proposition is refused, is sufficient, even though not in exact compliance with the statute requiring marking of propositions of law upon the paper as submitted.</p>

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

<p>Abstract of the Decision.</p> <p>1. Bailment, § 11* — what degree of care required of bailee for hire. A bailee for hire is bound to use ordinary care in the preservation of the property and such care as an ordinarily prudent man would bestow upon his own property.</p> <p>2. Bailment, § 11* — what is duty of bailee as to condition in which to return horse. Where a horse is delivered to a bailee for hire in good condition, it is his duty to return the animal in the same condition or show that he was not negligent in the care of the horse.</p> <p>3. Appeal and error, § 878* — what must be preserved in abstract. Objections and exceptions to the admission of evidence must be preserved in the abstract for the purpose of review of the question of the admissibility of the evidence.</p> <p>4. Witnesses, § 278* — when witness may he impeached hy contradictory statements. Where, in an action against a bailee for hire for the negligent death of plaintiff’s horse, after cross-examination of defendant’s driver, who had testified that he had driven the horse carefully and had seen nothing the matter with him until noon of the day he died, as to whether or not he had stated to certain persons that the horse was “off feed” and had been dragging for two or three days and had replied in the negative, and counsel for defendant asked the witness on redirect examination to give the conversations had with such persons, which he did, it was competent to show by way of impeachment that the witness made contradictory statements.</p> <p>5. Bailment, § 27* — when negligence in care of horse shown. In an action against a bailee for hire for the negligent death of plaintiff’s horse, evidence held to sustain a finding that the horse died as the result of the want of due or reasonable care upon the part of defendant’s servant.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Error to the Circuit Court of Wabash county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>1. Drainage, § 94* — when petition to compel commissioners to construct and replace a bridge over a drainage ditch is sufficient. A petition to compel drain commissioners to construct and replace a bridge over a drainage ditch on petitioner’s premises which alleges that respondent commissioners constructed a drain across the lands of petitioner and that such premises were then and there and still are an “inclosed field or parcel of land,” is not demurrable because in the • alternative or disjunctive and because it does not state, whether the parcel of land is inclosed or not, since the language is that used in the statute relating to the construction of such bridges (J. & A. If 4552).</p> <p>2. Breading, § 35* — when sufficient. As a general rule a pleading is sufficiently definite if in the words of the statute it relies upon.</p> <p>3. Drainage, § 94* — when petition to compel commissioners to construct and replace bridge over drainage ditch is sufficient. A petition of mandamus by a landowner to compel drain commissioners to construct and replace a bridge over a drainage ditch constructed on petitioner’s premises which sets forth the facts and in the prayer for relief asks for a writ of mandamus compelling the commissioners to build and construct a suitable “bridge or proper passageway” of sufficient size, strength and capacity to afford a reasonably safe passage across such ditch where it crosses the premises of the petitioner, is sufficient.</p> <p>4. Drainage, § 94* — when judgment on petition to compel commissioners to construct and replace bridge over drain proper. Although two bridges had been previously washed away at a point along the drain through petitioner’s land, a judgment, on petition for mandamus to compel drain commissioners to construct and replace a bridge over a drainage ditch on petitioner’s premises, was not erroneous because providing for the construction of a suitable bridge or proper passageway and not for the rebuilding and replacing of the last bridge, where it is left to the commissioners to determine the kind of bridge or passageway.</p> <p>5. Drainage, § 94* — when petition to compel commissioners to construct and replace bridge over drain is sufficient. A petition by a property owner to compel drain commissioners to construct and replace a bridge over a drain on the petitioner’s land is not insufficient because alleging no facts as to what petitioner is using the premises for or whether they are cleared land or wild land, inclosed or uninclosed, or whether they are being used for agricultural purposes or otherwise, where it is alleged that the commissioners constructed a drain across the lands of petitioner and that said premises were then and there and still are “an inclosed field or parcel of land,” the words of the statute (J. & A. If 4552).</p>

<p>Abstract of the Decision.</p> <p>1. Insurance — when burden of proof is on defendant to show death of insured as result of intemperate use of intoxicating liquor. In an action on a mutual benefit insurance certificate the burden of proof is on defendant to show that deceased came to his death as the result of the intemperate use of intoxicating liquor, so as to render available as a defense a condition of the certificate against the use of such liquor.</p> <p>2. Appeal and error, § 1411* — when finding of jury not disregarded. A jury's finding, based on conflicting evidence, that insured did not come to his death as the result of the alleged, intemperate use of intoxicating liquor will not be disregarded on appeal where there is evidence fairly tending to support such finding and the verdict.</p> <p>3. In suban ce, § 895a* — when evidence as to habits of insured is admissible. In an action on a mutual death benefit certificate, in which the defense is a violation of a provision of the certificate that no benefit shall be payable if death is due to the intemperate use of intoxicating liquor, evidence that deceased was formerly not addicted to the intemperate use of intoxicating liquor is admissible.</p> <p>4. Insurance — when burden on defendant to show that death of insured was due to intemperate use of liquor not shifted. The burden incumbent on defendant, in an action on a mutual death benefit certificate, to show that deceased met his death as the result of the intemperate use of intoxicating liquors is not shifted by the fact that the proofs of death contain the coroner’s verdict that deceased came to his death from “exposure by being under the influence of alcohol.”</p> <p>5. Appeal and ebbob, § 1241* — when party may not complain of error in instruction. A party may not complain of error in an instruction where the same principle is embodied in an instruction given at his own request.</p> <p>6. Appeal and ebbob, § 1561* — when refusal of instructions is harmless error. It is harmless error to refuse requested instructions covered by the main charge.</p>

<p>Error to the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Gallatin county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 432* — when objection as to lack of verification of plea is too late. The objection that a plea is not verified must be raised in the trial court and may not be raised for the first time on appeal.</p> <p>2. Pleading, § 453* — when verification of plea is waived. The verification of a plea is waived by going to trial upon the pleadings as framed.</p> <p>3. Pleading, § 451* — how benefit of failure to file sworn plea may be availed of. If a plaintiff desired to avail itself of any benefit of the failure to file a sworn plea it should have moved for judgment or taken proper steps to have stricken the plea from the files.</p> <p>4. Sales, § 147* — when duty lies on purchaser to return unused goods within reasonable time after expiration of contract. Where patterns are delivered under a contract providing that patterns shall be shipped from time to time at a certain price each and that such as are unsold shall be returned and credit given at the full purchase price, and the term of the contract is for 5 years, and from term to term thereafter, with the option of cancellation within 30 days before expiration of any term, and it is provided that if notice is given the seller the agreement will be continued for 4 months thereafter in order to give the seller an opportunity to transfer the account, it is the duty of the purchaser to return the unused goods within a reasonable time after the expiration of the contract.</p> <p>5. Sales, § 147* — what does not constitute unreasonable delay in returning goods after expiration of contract. A delay of 18 months, after the expiration of a contract for the purchase of patterns, in returning unused patterns to be credited on the purchase price, is not unreasonable where the contract contemplated that if notice to terminate the contract was given by the purchaser the agreement should continue for a certain number of months to give the seller an opportunity to transfer the account and the seller disregarded letters from the purchaser after the expiration of the 4 months’ period as to what should be done with the patterns and gave no direction as to their shipment.</p>

<p>1. Municipal corporations — what is object of statute as to causing publication of treasurer’s report. The object of Hurd’s Rev. St. ch. 24, sec. 97 (J. & A. If 1369), providing for the making of reports to a City Council of receipts and expenditures as from time to time required and also for an annual report, and that the clerk shall immediately cause the report to be published in a newspaper in the city, if there is one, and, if not, then by posting the same at a public place in the clerk’s office, is to secure a publication of such report that the inhabitants may know how the expenditures have been made, and the city clerk is only a means for causing such publication, and the fact that a contract for printing is made by a printing committee is immaterial.</p> <p>2. Mandamus, § 74* — when mayor compelled to sign warrant for publication of treasurer’s report. Where the publication of a city treasurer’s report is authorized by law and the city has received the benefit thereof and the bill therefor has been approved by the City Council and a warrant issued by the clerk, as ordered by the council, and presented to the mayor, in the absence of fraud a prima facie duty upon the mayor’s part to sign the warrant is shown, and, upon his failure to sign, he will be compelled to perform his duty by mandamus.</p>

<p>1. Carriers, § 352* — when street car company is liable for injury to passenger due to baggage in aisle. The duty of caring for baggage primarily rests upon the passenger in a street car, and if a suit case in the aisle is a sufficient obstruction to render the aisle unsafe or does not furnish ample room for the ingress or egress of passengers, and the carrier knows, or in the exercise of reasonable care might have known, of the obstruction and failed to remove it, as the result of which another passenger stumbles over it, there is negligence on the part of the carrier.</p> <p>2. Carriers, § 476* — when evidence is insufficient to show Knowledge by agents of carrier of existence of suit case in aisle. In an action by a passenger against a street car company to recover damages for personal injuries, due to a fall over a suit case, which was placed in the aisle of the car by another passenger, while he was on his way to alight from the car, evidence held insufficient to show that the conductor or motorman had notice of the presence of the suit case in the aisle, or that it had been in the aisle a sufficient length of time that they should have taken notice of it.</p>

<p>Appeal from the Circuit Court of Wabash county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the March term, 1918.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1917.</p>

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

<p>Abstract of the Decision.</p> <p>1. Pasties, § 33* — what is purpose of intervention in cause. One who intervenes in a cause is simply let in for the purpose of establishing his right to the property or funds in dispute.</p> <p>2. Assignments, § 18* — what does not constitute equitable assignment •of fund to be recovered by attorney. Where there is an agreement by a party to pay his attorney a reasonable compensation for his legal services out of the proceeds of litigation, such agreement depending as it does upon the mere responsibility of the employer, does not operate as an equitable assignment of any portion of the fund sought to be recovered in the suit.</p> <p>3. Assignments, § 18* — when equitable assignment of interest of attorney in judgment not shown. Evidence held insufficient to show an equitable assignment by an attorney to other attorneys acting for him, in an action against a client for legal services, and in prior litigation in which the client was involved, of any interest in the judgment obtained in favor of the client.</p>

<p>Abstract of the Decision.</p> <p>Brokers — when sale of secret process to purchaser not procured by broher may not he enjoined. A broker who has knowledge of the existence of a secret process for refining oil and undertakes as a broker to bring the owners and a prospective licensee together, the principals having the right to sell to another than a licensee procured by the broker without liability for payment of compensation, has no interest in the process, even though his compensation is to be based upon a certain percentage of the royalties arising from the license, and consequently cannot enjoin the sale of the process to a purchaser not procured by him.</p>

<p>Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fby, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>1. Landlord and tenant, § 8* — when relation created. The relation of landlord and tenant is created by a lease under seal signed by the tenant and by the lessor’s wife in her name, the tenant having entered into possession and the parties by their subsequent conduct having recognized the existence of the relation.</p> <p>2. Landlord and tenant, § 35* — what is effect of failure of lessor to sign lease. Where a default by the tenant occurs, under the provisions of a lease under which the tenant entered into possession, the lessor may recover upon the lease, although he did not sign it.</p> <p>3. Landlord and tenant, § 330* — what may be included in judgment for rent. In an action by a lessor for the recovery of premises and for unpaid rent, judgment may be entered for instalments of rent due at the time of the trial.</p>

<p>1. Damages, § 68* — when failure of landlord to obtain another tenant may not be complained of. A tenant, who, after vacating the premises prior to the expiration of the term, retained constructive possession by keeping the keys, cannot object to the lessor’s failure to minimize the damages by obtaining another tenant, in an action for rent.</p> <p>2. Landlord and tenant, § 327* — when attorney’s fees may be included in judgment for rent. Where a judgment by confession for rent is merely opened and not vacated and the final order confirmed the judgment by confession, attorney’s fees may he included as part of the judgment.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Abstract of the Decision.</p> <p>Attachment, § 356* — when judgment for legal services proper in action on bond. In an action on an attachment bond, judgment for $25 for legal advice and services rendered in relation to the attachment and not for defending the suit, held sustained by the undisputed evidence.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.</p>

<p>Abstract of the Decision.</p> <p>Appeal and error, § 1725* — binding effect of decision on former appeal. The decision of the Appellate Court on a former appeal is binding, where the identical questions involved in the second appeal were determined on the first appeal.</p>

<p>Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court.(making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Vendor and purchaser, § 352* — when shown that agent had no authority to execute contract for joint owners. In an action against one of the joint owners of real estate for damages for breach of a contract to sell the real estate to plaintiff, evidence held sufficient to sustain the finding that defendant ordered his agent to make a contract in behalf of all the owners and without authority.</p> <p>2. Pleading, § 258* — what amendments may he made before judgment. Under section 39 of the Practice Act (J. & A. jf 8576), amendments may he made before judgment by discontinuing as to any joint defendant and changing the form of action.</p> <p>3. Vendor and purchaser, § 340* — When joint owner is liable for failure to fulfil contract to sell.. One of the joint owners of real estate who undertakes without authority to contract on behalf of all the owners to sell the property is liable to the purchaser for damages sustained as the result of his inability to perform the contract.</p> <p>4. Vendor and purchaser, § 343* — what is measure of damages for breach of contract to sell realty. The measure of damages for breach of a contract to sell real estate is the difference between the contract price and what the purchaser had contracted to sell the real estate for to another.</p>

<p>Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

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

<p>Error to the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

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

<p>Abstract of the Decision.</p> <p>Instjbance, § 860* — who has right of action on death benefit certificate. Under a certificate in a benefit association providing that benefits should be payable to “my father and mother jointly, or the survivor; or, if neither be living, then to my next of kin, payment in behalf of such next of kin to be made to my legal representative,” in the absence of proof that the father and mother are dead the right of action lies in them, or in the survivor of them, and not in the administrator of the insured.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 3* — when negligence of driver of one of colliding automobiles is shown. Proof that, at the time of a collision between defendant’s automobile and another machine, defendant was driving on the wrong side of the street at a speed of about 20 miles per hour, establishes the charge of negligence.</p> <p>• 2. Automobiles and garages, § 3* — necessity of showing exercise of due care. In an action for damages caused by a collision between two automobiles, it is necessary for plaintiff to prove that at the time of the accident he was in the exercise of due care.</p> <p>3. Appeal and error, § 1414* — what weight given findings of trial court. Findings of the trial court, in a case tried without a jury, upon the issue of contributory negligence are entitled to the same weight upon appeal as the verdict of a jury.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Chasms N. Goomsrow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1414*- — when finding of trial court not disturbed. The finding of the trial court without a jury will not be disturbed where the evidence is conflicting, unless it is against the manifest weight of the evidence, and in considering the weight of the evidence the Appellate Court will consider the superior opportunity of the trial court in that it sees and hears the witnesses.</p> <p>2. Street railroads, § 131* — when shown that street car was not operated at negligent rate of speed. In an action by the owner of an automobile for damages caused by a collision between the automobile and a street car at a street intersection, evidence held to sustain the trial court’s findings that the street car was not operated at a negligent rate of speed.</p> <p>3. Trial, § 91* — when objection to testimony is insufficient. An objection to testimony is not sufficient where after the trial judge had held the testimony competent counsel making the objection acquiesced, stating that it was probably part of the res gestos.</p>

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

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 14* — when oral contract of employment for one year shown. An oral contract of employment for a year is sufficiently established by evidence of the employee that the employer’s president stated to the employee that the company would pay him a certain amount a week for one year and the employer’s president testified to the same effect and there is no material evidence to the contrary.</p> <p>2. Master and servant, § 50* — when incompetency of servant and discharge for cause not shown. In an action to recover for a breach of a contract of employment, evidence held sufficient to support a finding for plaintiff on the issue that he was incompetent and was discharged for cause.</p> <p>3. Master and servant, § 50* — when diligence in procuring other employment shown. In an action to recover for a breach of a contract of employment, where plaintiff testifies as to his diligence in securing other employment and his evidence is not denied and no affirmative evidence is offered for defendant in regard thereto, a finding for plaintiff is warranted.</p> <p>4. Trial, § 265* — when verdict not disturbed as result of compromise. In an action to recover for a breach of contract of employment, where plaintiff’s evidence as to the time he was out of work and the pay which he received when he secured other employment is not contradicted, a verdict for plaintiff will not be disturbed on the ground that it must have been the result of a compromise, merely because there is a disparity between the amount of the verdict and the amount claimed by plaintiff.</p>

<p>1. Tbade-marks and trade names, § 21* — how former servants may not interfere uÁth business of master. While employees who leave an employer may engage in a similar business in the same neighborhood and may make every legitimate effort to promote its success, they cannot make representations concerning and give out information as to his business for the purpose of seducing his former customers from returning to him and in order to obtain his former customers and to profit thereby.</p> <p>2. Injunction, § 51a* — when justified because of unfair competition. On a bill to enjoin unfair competition, it is not the defendant’s motive that is important, but it is his conduct in unfairly depriving complainant of that which belongs to him that is condemned and gives the court jurisdiction and justifies an injunction.</p> <p>3. Tbade-marks and trade names, § 26* — what does not constitute variance between bill and proof. There is no variance between a bill of complaint which alleges that defendants had circulated certain reports as to the removal of complainant’s office and had represented to certain of the latter’s patients who had contracted with him for treatment that it would be given at defendants’ office and evidence of such patients that one of the defendants had made representations to influence them to visit defendants and have future work done by them.</p> <p>4. Trade-marks and trade names, § 26* — when decree enjoining unfair competition sustained by evidence. On a bill to enjoin unfair competition, evidence held to sustain a decree for complainant.</p>

<p>Abstract of the Decision.</p> <p>1. Innkeepers, § 6* — what care in selection of employees and in caring for baggage shown. In an action against a hotel company to recover for the loss of baggage stored with it, evidence held to show that defendant used normal business care and judgment in the selection and employment of the employees having charge of the baggage room, and that it exercised ordinary care in caring for the baggage.</p> <p>2. Innkeepers, § 6* — when not required to use more than ordinary care as to baggage. In an action against a hotel company to recover for the loss of baggage stored, with it, a notice by defendant that baggage left with it will receive its “best attention * * * but in case of * * * damage of any kind, it will be at the risk of the owner,” held not to demand of defendant either more or less than ordinary care.</p> <p>3. Innkeepers, § 6* — when burden not on defendant in action for damages for loss of baggage. In an action against a hotel company to recover for the loss of baggage stored with it, the burden is not on defendant to show the precise circumstances surrounding the actual loss of the trunk.</p> <p>4. Innkeepers, § 6* — when verdict for plaintiff for loss of baggage not sustained. In an action against a hotel company to recover for the loss of a trunk stored with it, where defendant shows its general practice in handling and keeping baggage and such practice is unobjectionable and shows that the employees ’ who would, normally, take charge of the trunk were of good character and fit for their positions, and the only evidence to the contrary is the presumption arising from the loss of the trunk, a verdict for plaintiff cannot be sustained.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Wittoes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Abstract of the Decision.</p> <p>Replevin, § 152* — when judgment is sufficient. A judgment in a replevin suit complies with, section 22 of the Replevin Act (J. & A. f 9207) and is sufficient to support an action on the bond where it holds, in effect, that the property is held by the defendant in replevin for the payment of money, and orders that unless the amount for which it is so held be paid within twenty days, the property be returned. ,</p>

<p>1. Insurance, § 25* — how capital stock may not be used. There is nothing in Hurd’s Rev. St. ch. 73, sec. 179 (J. & A. ji 6456) which warrants the conclusion that money subscribed for the capital stock of a life insurance company may be used by the corporators for the necessary expenses incurred in the formation of the company.</p> <p>2. Insurance, § 25* — what is duty of corporators of proposed company as to proceeds from subscriptions to stock. The corporators of a proposed life insurance company are trustees of the funds received from subscriptions to the stock and are required to conserve such funds and turn them over to the company when the organization is completed, and if this is not done but the funds are expended for other purposes, a subscriber who does not acquiesce in the expenditure may sue the corporators for money had and received.</p> <p>3. Corporations, § 25* — when corporators are liable to subscriber for amount of subscription. Where one subscribing for stock in a proposed corporation pays his subscription to the corporators and the corporation is never completed, he may recover against the corporators in an action for money had and received, even though the money was honestly spent in endeavoring to complete the organization and plaintiff sets up no claim of fraud, misrepresentation or deceit.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomeboy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>1. Pleading, § 404* — when evidence admissible under plea. Semble, that if a plea is good on demurrer, the evidence offered in support of it should be held admissible.</p> <p>2. Evidence, § 327* — when parol evidence is inadmissible. Pursuant to the general rule that parol evidence is inadmissible to vary or contradict a written contract, if a bill or note is absolute on its face, evidence of a verbal agreement, made at the same time, qualifying its terms is not admissible.</p> <p>3. Evidence, § 327* — when parol evidence is inadmissible. Parol evidence is inadmissible to show that a note absolute on its face was to be paid to some other person than the one named therein as payee.</p> <p>4. Bills and notes, § 327* — what is no defense in action on note. It is no defense to an action on a promissory note that the plaintiff, although the holder of the legal title to the note, is merely a nominal party in interest and that the beneficial interest in the note is in another.</p> <p>5. Evidence, § 327* — when may be shown by parol that plaintiff is merely trustee or agent for another. Where the plaintiff in an action on a promissory note to which he has the legal title is, in fact, merely the trustee or agent for another who is the beneficial owner of the note, parol evidence is admissible to show such fact, provided the defendant has a good defense to the note as against the beneficial owner.</p> <p>6. Bills and notes, § 327* — what defense available where action is brought by trustee or agent. In an action to recover on a promissory note brought by one who, while holding the legal title, is merely agent or trustee for the beneficial owner of the note, defendant may interpose any defense which might be set up against the beneficial owner, just as though the action had been brought in the latter’s name.</p> <p>7. Bills and notes, § 420* — when error to exclude evidence as to ownership of note. In an action to recover on a promissory • note, where defendant sets up that her mother was the real owner of the note and had forgiven her the note and had directed that it be canceled and returned to defendant, it is error to refuse to admit evidence in regard to the beneficial ownership and to exclude from evidence a certified copy of the mother’s will by which the note was bequeathed to defendant.</p> <p>8. Evidence, § 223* — what properly excluded as hearsay in action on note. In an action to recover on a promissory note in which defendant sets up that the mother’s estate and not the plaintiff was the beneficial owner, evidence of third persons as to conversations with the mother offered to show that the beneficial ownership was in another than plaintiff is properly excluded as hearsay.</p> <p>9. Witnesses, § 95* — when defendant not incompetent as witness. Hurd’s Rev. St. ch. 51, sec. 2 (J. & A. V 5519) does not apply to exclude the evidence of the defendant in an action to recover on a promissory note because of the fact that the defense is set. up that plaintiff is, in fact, as to such note, trustee for plaintiff's deceased mother and merely the holder of the legal title, where plaintiff seeks to recover as the absolute owner of the note.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 2* — what care must be exercised by one seehing to drive automobile on wrong side past approaching wagon. One seeking to drive an automobile past an approaching wagon on the wrong side must exercise care to give proper signals and not to pass at a high rate of speed, and this duty is not affected by the fact that the right side of the street is not usable.</p> <p>2. Negligence, § 106* — when of child will not be imputed to parent. In an action to recover for the death of one who, while walking in the street behind a wagon, was struck by an automobile which passed the wagon on the wrong side, negligence of the deceased’s son who was driving the wagon cannot be charged to deceased.</p> <p>3. Autqmobti.es and garages, § 3* — when evidence supports verdict for death of person in street behind wagon. In an action to recover for the death of one who, while walking in the street behind a wagon, was struck by an automobile as it passed the wagon on the wrong side and going at a high rate of speed without signals, evidence held sufficient to support a verdict for plaintiff.</p> <p>4. Automobiles and garages, § 3* — when instruction on prima facie case of negligence in operation of automobile is correct. In an action to recover damages for the death of a person killed by an automobile as he was walking in the street, it is not error to instruct the jury that “in an action brought to recover damages either to the person or property caused by running an automobile propelled by mechanical power along a public street through a residential portion of an incorporated city at a greater rate of speed than fifteen miles an hour, the plaintiff is deemed to have made out a prima facie case of negligence by showing the fact that the deceased was killed by said automobile and that the person running such automobile was at the time of the injury running the same at a rate of speed greater than the law permits,” even though there was but slight evidence that the district in which the accident occurred was a residential district, where the evidence, in other respects, makes out more than a prima facie case of negligence.</p> <p>5. Death, § 73* — when instruction correct on damages for wrongful death. In an action to recover for wrongful death, an instruction that if the jury believe from the evidence that the deceased “while in the exercise of ordinary care for his safety and without fault or negligence on his part lost his life by and through the negligence of the defendant, as charged in the declaration or in either count thereof, as amended, and that said Franklin Brautigan [the deceased] left him surviving next of kin, then you should find the defendant guilty and assess the plaintiff’s damages at such sum as you believe from the evidence will be fair and just compensation based upon the pecuniary loss, if any, resulting from the death of the said Franklin Brautigan to his said next of kin, not exceeding the sum of ten thousand ($10,000) dollars” is proper, even though it suggests the assessment of damages at a sum not exceeding that named in the declaration and omits the words “under the instructions of the court,” especially where the verdict is for a less sum than the maximum named.</p> <p>6. Automobiles and garages, § 3* — when instruction on care in. operation of automobile is not erroneous. In an action to recover for the death of a person struck as he was following a wagon in the street by an automobile which the evidence shows was passing the wagon on the wrong side while going at a high rate of speed and without signals, it is not error to instruct that an automobile driver using the highway must use reasonable care to avoid injury to others.</p> <p>7. Instructions, § 151* — when properly refused. Refusal to give an instruction the substance of which is embraced in other . instructions given is not error.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>1. Injunction, § 334* — when bond is binding. A bond given on the issuance of an injunction which not only contains the conditions prescribed by Hurd’s Rev. St. ch. 69, sec. 8 (J. & A. U 6168), but also the further condition to pay the obligees such damages as may be “sustained” by them “or any one or more of them” by reason of the wrongful issuing of the injunction, is a voluntary obligation given on a good consideration consisting of the issue of the injunction and is binding on the obligor not only as to the statutory conditions but also as to the added condition.</p> <p>2. Bonds, § 28* — who must be parties plaintiff. In an action on a bond in which the legal interest of the obligees is joint, they must all appear as parties plaintiff.</p> <p>3. Appeal and error, § 1666* — when irregularity in making persons parties to action is waived. Irregularity in the procedure by which persons become parties plaintiff to an action is waived where the defendant made no motion to strike or dismiss and assigns no error on that ground on appeal.</p> <p>4. Bonds, § 41* — who entitled to judgment in action by joint obligees. Although all the obligees in a bond in which they have a joint legal interest must join in a suit thereon, the judgment will be for the use of that party who is shown to be equitably entitled to the money, where the condition is joint and several and binds the obligor to pay the obligees such damages as have been sustained by them or any one or more of them.</p> <p>5. Injunction, § 342* — when surety on bond is concluded by damages awarded on dissolution of. The surety on an injunction bond conditioned to pay such damages as may be awarded against complainant in case the injunction shall be dissolved is generally concluded by the damages as so awarded in that action although he is not a party thereto.</p> <p>6. Injunction, § 384* — when error in amount of damages awarded on dissolution not available. Even though it was improper, on the dissolution of an injunction, to award damages against complainant in an amount exceeding 10 per centum of the enjoined judgment, such error cannot be availed of on an appeal from the judgment in a suit on the injunction bond.</p> <p>7. Injunction, § 338* — when conditions of bond construed as joint and several. Conditions of an injunction bond held to be, under a reasonable construction of the language employed, joint and several.</p> <p>8. Injunction, § 355* — when decree in injunction proceedings is admissible in action on bond. Where an injunction bond contains conditions by the obligor to pay such damages as may be sustained and such costs and damages as shall be awarded the obligees or any one or more of them, it is proper to admit in evidence, in an action on the injunction bond, the decree awarding damages entered in favor of a defendant in the injunction proceeding who is a plaintiff in the action on the bond, even though the decree awards damages in excess of 10 per centum of the judgment enjoined.</p> <p>9. Damages, § 190* — what is effect of decree as evidence of. A decree in favor of one is at least prima facie evidence that he sustained damages and to the amount awarded.</p>

<p>Abstract of the Decision.</p> <p>1. Frauds, Statute of, § 91* — when recovery may he had on implied contract. After default has been made by either party to a contract voidable under the Statute of Frauds, neither party can recover against the other on the basis of an implied contract as to such part of the voidable contract as remains to be executed by the plaintiff, but only as to such part as he has executed, and, to recover, plaintiff must both allege and prove that he has executed his part of the contract, either in whole or in part, and, on the basis of that execution, seek to recover the fair and reasonable compensation due him by reason of the execution.</p> <p>2. Municipal Court of Chicago, § 13* — when affidavit of defense in action on contract for sale of stock is sufficient. In an action to recover a balance claimed to be due on a contract for the sale of stock, the statement of claim in which does not allege execution of the contract by delivery of the stock, an affidavit of defense which avers that the parties entered into a verbal agreement for the purchase of the stock by which defendant was to pay a certain amount in cash and notes and also to convey to plaintiff certain real estate and that such agreement fixed no value for the real estate and no purchase price for the stock, and sets up the Statute of Frauds as a defense, interposes a complete defense to the action.</p> <p>3. Frauds, Statute oe — what does not constitute execution of contract for sale of stock taking case out of. A tender of stock, as to the sale of which the parties had contracted orally, after the purchaser had instituted proceedings against the seller to recover back so much of the purchase price as he had paid, does not constitute such an execution of the contract by the seller as will take the contract from within the Statute of Frauds.</p>

<p>Abstract of the Decision.</p> <p>1. Criminal law, § 39* — when jurisdiction obtained of person arrested without warrant. A court has jurisdiction to hear a criminal case and pronounce judgment, although defendant was arrested without a warrant, where defendant submits herself to the jurisdiction of the court without challenging the mode or manner of her arrest. •</p> <p>2. Arrest, § 25* — when officer may arrest person without warrant. An officer may arrest a person without a warrant if he has reasonable ground for believing that the person arrested has committed a crime.</p> <p>3. Criminal law, § 497* — when assumed that offense was committed in presence of officer making arrest without warrant. Where a defendant in a criminal prosecution for being an inmate of a house of prostitution was arrested without a warrant, in the absence of the evidence in the record it will be assumed that the offense charged was committed in the presence of the officer, and that such evidence proved that defendant was an inmate as charged.</p> <p>4. Arrest, § 25* — when 6y officer without warrant lawful. If the offense of being an inmate of a house of prostitution is committed in the presence of the officer making the arrest, such arrest is lawful, although made without a warrant.</p> <p>5. Criminal law, § 39* — when magistrate has jurisdiction of person arrested without warrant. Where one is arrested and brought before a magistrate without a warrant, nothing further is required to be done to give him jurisdiction, but a written complaint or information against the defendant, setting out the offense, is necessary.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>1. Bastards, § 7* — when bastardy action may be maintained. A woman, married after conception and the filing of a complaint, can maintain an action for bastardy against the putative father of the bastard child.</p> <p>2. Bastards, § 7* — when child is not legitimate.' A child, a bastard at conception, is not legitimate at birth because of the marriage of the mother to a man who was not the cause of her pregnancy.</p> <p>3. Bastards, § 2* — when presumption of legitimacy does not obtain. While the legal presumption obtains that every child born in wedlock is legitimate, still such presumption is rebuttable when the proof conclusively shows that the husband had no power of procreation or that the circumstances were such as to render it impossible that he could be the father of the child, and such child will be adjudged to be a bastard.</p> <p>4. Bastards, § 7* — when child is a bastard. A child of a married woman begotten by one who is not the husband of the ni other is a bastard.</p> <p>5. Bastards, § 33* — what is question of fact. The true test in determining whether a child born in lawful wedlock is legitimate is whether the husband of the woman who gives birth to the child is its father and this is a question of fact.</p> <p>6. Bastards, § 7* — when child of married woman is a bastard. Where a woman is pregnant with a child, born five days after her marriage, which was conceived several months before she met her husband, making it impossible for him to be the father of the child, such child is, notwithstanding the marriage of the mother with a man not its father, a bastard.</p> <p>7. Bastards, § 3* — when husband under no duty to contribute to support of wife’s bastard. A husband is under no duty to support or to contribute to the support of his wife’s bastard child, notwithstanding the fact that the child was born five days after his marriage to the mother.</p>

<p>Error to the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the October term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Parks and boulevards, § 12* — when agreement as to construction and operation of street railroad lines over boulevard intersections not disturbed. Where a street railway company and a corporation having control over the boulevards of a city have agreed upon the terms upon which the former’s lines are to be constructed and operated at the intersection of certain streets with certain boulevards, the courts will not interfere unless it appears that the execution of the agreement was procured by duress or unless the terms and restrictions imposed on the use of such places are manifestly so unreasonable as to shock one’s sense of justice and fairness.</p> <p>2. Parks and boulevards, § Vi* — mature of control of South Park Commissioners over boulevards. The control of the South Park Commissioners over the boulevards is the same as that of the City of Chicago over the streets and other public places in the city.</p> <p>3. Parks and boulevards, § 12* — what is right of street railroads to use boulevards under control of park commissioners. A street railway company has no right under the law to occupy and use the intersections of streets and boulevards under the control of the South Park Commissioners in the City of Chicago in disregard of such reasonable restrictions as the South Park Commissioners may impose.</p> <p>4. Parks and boulevards, § 6* — what is nature of City of Chicago and South Park Commissioners. Both the City of Chicago and the South Park Commissioners are municipal corporations created by the sovereign power of the State for the purpose, inter alia, of controlling and governing the use of streets, highways and public places in the interest of the whole people.</p> <p>5. Parks and boulevards, § 12* — what is jurisdiction of City of Chicago and South Park Commissioners over and duty as to intersecting highways controlled by each. Where highways under the exclusive control of the City of Chicago and of the South Park Commissioners, respectively, intersect each other, the control of such intersection resides within the joint jurisdiction of such corporations, and the duty of each is so to exercise its jurisdiction as not to interfere unreasonably with the legislature’s purpose in placing such control in their hands separately.</p> <p>6. Parks and boulevards, § 12* — when park commissioners may prevent use of boulevard intersections by street railroad. Even where no valid contract ordinance is involved, the South Park Commissioners have the right, where a street railway company refuses to comply with reasonable restrictions, to prevent the company’s use of boulevard intersections under the commissioners’ jurisdiction.</p> <p>7. Parks and boulevards, $ 12* — what is power of city and park commission as to regulation of street and boulevard intersections. Where a city and a park commission have the joint control and management of the intersections of streets and boulevards, each has the power, even without consent, to regulate the use of such intersections.</p> <p>8. Parks and boulevards, § 12* — when assumed that contract as to use of boulevard intersections by street railroad is reasonable. Where the restrictions as to the use of boulevards by a street railway company at a point where they intersect streets are regulated by the conditions of a contract between the company and the park commission having jurisdiction of the boulevards, the courts will assume, in the absence of very clear evidence to the contrary, that the provisions of the contract are reasonable.</p> <p>9. Parks and boulevards, § 12* — when ordinance requiring paving and maintenance of boulevard intersections by street railroad is not ultra vires. An agreement, embodied in an ordinance, between a street railway company and a park commission having control of boulevards of a city whereby the former, as a condition of the operation of its lines across the intersection of the boulevards and certain streets, agrees to pave and maintain in repair certain parts of the intersection, is not ultra vires as regards either party.</p> <p>10. Parks and boulevards, § 12* — when street railroad not required to assent to conditions imposed upon crossing boulevards. A street railway company is not required to assent to unreasonable conditions or restrictions imposed by a park commission controlling the boulevards in a city upon its crossing the boulevards with its lines.</p> <p>11. Parks and boulevards, § 12* — when ordinance as to repair and maintenance of boulevard intersections by street railroad is reasonable and based on sufficient consideration. An agreement by a street railway company with a park commission having control of the boulevards of a city to pave and repair such boulevards at their intersection of certain streets as a condition of the operation of its lines across such boulevards, such agreement being contained in an ordinance which it had accepted and which had been acted upon by both parties for some years, held not unreasonable and to be based upon a sufficient consideration.</p> <p>12. Parks and boulevards, § 12* — when liability of street railroad to pave and repair boulevard intersections not released. Obligations assumed by a street railway company to a park commission, constituting a separate municipality, with regard to the paving and repair of boulevard intersections crossed by its lines are not released by subsequent ordinances of the city in which such boulevards are located.</p>

<p>Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court</p>

<p>Error to the Circuit Court of Cook county; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in this court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13* — when statement of claim is insufficient in action try tenant against landlord for personal injuries. A statement of claim, in an action by a tenant against his landlord for personal injuries caused by a fall from an unrailed, stairway, alleging that it was the duty of defendant to keep the premises in repair, but alleging no agreement on the part of defendant to repair, and no facts from which a duty to repair could arise, is insufficient to state a cause of action, the allegation of a duty to repair being a mere conclusion.</p> <p>2. Municipal Court of Chicago, § 13* — when judgment on insufficient statement of claim not validated. Where a statement of claim was insufficient to state a cause of action, a judgment thereon for plaintiff after a trial had in the absence of defendants could not be given vitality by the filing, with leave of court, of an amended statement of claim after the entry of judgment.</p> <p>3. Municipal Court of Chicago, § 13* — what amendment of statement of claim not allowed after judgment. Where the original statement of claim was insufficient to state a cause of action, an amendment is equivalent to setting up a new cause .of action and is not allowable after judgment.</p> <p>4. Pleadings, § 248* — what amendments permitted after judgment. Amendments of pleadings after judgment are permitted by statute for defects or imperfections in matters of form, but not as to substance.</p>

<p>1. Mandamus, § 119* — who may not join in seme writ as relators. Where the interests of several relators seeking redress by mandamus are separate and independent they cannot join in one and the same writ.</p> <p>2. Mandamus, § 139* — when petition for restoration of several persons to former rank as police officers is insufficient. A petition for mandamus on the relation of several persons claiming to have been unlawfully reduced in rank as police officers and praying to be restored to their former rank is bad on special demurrer, since there was no community of interests among the relators, even if they held positions of the same rank and were unlawfully removed therefrom by the same order.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Mastín M. Gbidley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Eubank H. Gbaham, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 62* — what is extent of protection in use of corporate name. A corporation in business is entitled to protection in the use of the name under which it is incorporated to the same extent as an individual would be entitled to protection in the use of his individual name.</p> <p>2. Trade-marks and trade names, § 23* — when relief granted against use of generic or descriptive name. While names which are generic terms or merely descriptive are the common property of the public, and a private property interest cannot be acquired, relief will be granted where a name of this character has been adopted under circumstances which make it appear that the purpose of adopting such name was to mislead the general public.</p> <p>3. Trade-marks and trade names, § 22* — what is duty of trader adopting trade name similar to one in use. Regardless of fraudulent intent or actual injury, it is the duty of a subsequent trader to adopt affirmative precautions sufficient to make confusion and deception in the use of a similar trade name improbable.</p> <p>4. Trade-marks and trade names, § 24* — what constitutes unfair competition in use of corporate name. The use of the name “Auto Sales and Parts Company” held to constitute unfair competition as to an older and established concern trading, under the name “Auto Parts Company,” there being evidence that confusion resulted and no evidence of an innocent intention in making use of a name so similar.</p> <p>5. Appeal and error, § 1399* — when findings of master not disturbed. Findings of the master approved by the chancellor will not be set aside unless clearly and manifestly against the weight of evidence.</p> <p>6. Equity, § 404* — when amount of costs taxed for master's fees may not be complained of. The fact that the costs taxed for master’s fees are in excess of the amount requested by the master affords no ground for complaint where they are much less than the statutory fees.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tothiix, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>1. Bankruptcy, § 85* — what does not constitute new promise. Evidence that the partnership of which defendant was a memher executed two notes to a national bank, one for $10,000 and the other for $1,500, which defendant indorsed; that thereafter the partnership and defendant were adjudicated bankrupts and that after such adjudication defendant executed to a State hank which had purchased the assets of the national bank a note for $11,500, held insufficient to show that the latter note was executed by reason of the moral obligation to pay the old indebtedness as against defendant’s undisputed testimony that the note was given purely as an accommodation “to show the bank examiner.”</p> <p>2. Banks and banking — when maker of note not estopped to show want of consideration in action 6y hank receiver. A note given to a bank purely as an accommodation “to show the bank examiner” does not estop the maker from disputing liability on the ground of want of consideration, in an action by the receiver of the bank, where there is no evidence that any creditor was prejudiced or suffered any detriment .by reason of such act.</p>

<p>1. Automobh.es and garages, § 7* — when identity of recovered stolen oar shown. Evidence in an action upon a theft insurance policy on an automobile, held sufficient to identify an automobile recovered and tendered to the insured as the stolen car.</p> <p>2. Account stated, § 3* — what does not constitute. Where a theft insurance policy on an automobile gave the insurer 30 days after proof of loss in which to make payment, and before the expiration of the 30-day period the insurer and the insured adjusted the loss on the machine, the former drawing a draft for the amount and delivering it to the latter, hut stopping payment on it the next day because of information that the stolen car had been found, the transaction did not amount to an account stated so as to permit of an independent action thereon.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stouqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>1. Negligence, § 205* — when issue of wantonness is not submitted to jury. Where, in an action to recover for personal injuries one count of which sets up wantonness, the only reference made in the instructions to wantonness is in one of defendant’s instructions, the issue of wantonness was not submitted to the jury, and the fact that such issue was ignored in defendant’s instructions cannot be urged as a ground for reversal.</p> <p>2. Roads and bridges, § 231* — when driver of vehicle required to signal intention of crossing street car track after turning. A municipal ordinance providing that no vehicles standing at or drawn alongside the curb shall start to turn therefrom until the driver shall have given a signal which can be seen from the rear of the vehicle from the side towards which he is about to turn, which sign shall indicate his intention to start to turn from the curb in the direction in which the turn is to be made, held to require one driving a vehicle anywhere between the car track and the curb to signal his intention to cross the track.</p> <p>3. Street railroads, § 141* — when instruction on duty not to unduly obstruct street car traffic by wagons is not erroneous. In an action to recover for personal injuries from a collision between a street car and a wagon, alleged by plaintiff to have been caused by the car striking his wagon as he was driving from the track after signaling his intention to the motorman, and alleged by defendant to have been caused by plaintiff’s driving on the track immediately before the car, it is proper to tell the jury that in determining whether the motorman was operating the car at and before the accident with ordinary care, they should take into consideration the law which prohibits wagons from unduly obstructing street car traffic, even though they are not told that this law is to be considered in connection with plaintiff’s conduct as well.</p> <p>4. Street railroads, § 86* — when recovery may be had for injuries due to collision of street car with wagon. In an action for personal injuries received in a collision between plaintiff’s wagon and defendant’s street car, to recover, plaintiff must have been in ¡the exercise of ordinary care for his own safety, and, to excuse defendant from liability, it would also have to have exercised ordinary care, but ordinary care on the latter’s part would require more precautions than would be required of plaintiff.'</p> <p>5. Street railroads, § 141* — when instruction on respective duties of driver of wagon and motorman to avoid collision is misleading. In an action to recover for personal injuries received in a collision between plaintiff’s wagon and defendant’s street car,' it is reversible error to instruct the jury that plaintiff “was just as much in duty bound to exercise ordinary care to look out for the approaching car and to avoid a collision between said car and the wagon which plaintiff was driving, at the time and place in question, as the motorman in charge of said car was to look out for and to avoid colliding with said wagon. One was not held in law to any higher degree of care than the other,” as tending to mislead the jury as to the character of the precautions which plaintiff was required to exercise and as being susceptible of the construction that the plaintiff, to be in the exercise of ordinary care for his own safety, was required, under the law, to take the same precautions as defendant was required to take in order to be in the exercise of ordinary care.</p>

<p>1. Evidence, § 232* — when exclusion of coroner’s verdict in action for death of driver of vehicle in collision with automobile is. proper. In an action to recover for the death of one killed by the collision of a vehicle, which he was driving, with defendant’s automobile, it is proper to exclude from evidence the verdict of the coroner’s jury which found that the automobile was run at an exceedingly high and dangerous rate of speed and that defendant was guilty of gross and criminal carelessness amounting to manslaughter and recommended that he be held to the grand jury on a charge of manslaughter, as such verdict exceeded the jury’s authority by finding upon evidentiary facts.</p> <p>2. Depositions, § 23* — what is proper practice as to use of taken at coroner’s inquest. In an action to recover for wrongful death, depositions of witnesses taken before the coroner at the inquest are inadmissible as original testimony, hut the proper practice is to use the depositions in the cross-examination of the witness and then, if it appears that his testimony is different from his depositions, the latter may be read.</p> <p>3. Automobiles and garages, § 3* — when instructions on effect of violation by driver of vehicle of speed and light ordinances are erroneous. In an action to recover for the death of one killed by a collision between his vehicle and defendant’s automobile, instructions as to the effect of the violation by plaintiff’s intestate of ordinances regulating the speed of horse-drawn vehicles and the lights to he used on such vehicles, held erroneous and misleading where there was no evidence of a violation of the speed ordinance and the evidence showed that the presence or absence of lights on the vehicle could not have affected the accident.</p> <p>4. Automobiles and garages, § 3* — when instruction on contributory negligence in violating ordinance as to turning corners to left is erroneous. In an action to recover for a death resulting from a collision between a vehicle driven by deceased and defendant’s automobile, it is error to give an instruction that if the jury believed from the evidence that at the' time of the accident the deceased was violating an ordinance regulating the manner in which vehicles shall proceed in turning corners to the left and that such violation was negligence which proximately contributed to the accident, then they should find for the defendant, as thereby there is an assumption that the violation of the ordinance was conclusive of the fact that deceased was negligent, instead of being, at the most, mere prima facie evidence thereof.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1. Bankruptcy, § 28* — when MU by trustee for reconveyance of property conveyed to defendant by bankrupt is demurrable. A demurrer is properly sustained to a bill by a trustee in bankruptcy which prays that defendant be decreed to convey back to the trustee property which had been conveyed to him by the bankrupt upon payment to defendant of such sum as he had actually paid for it together with any sum which he may be found to be equitably entitled to, where complainant does not offer to pay defendant the sum which may be so found to be equitably due him.</p> <p>2. Bankruptcy, § 28* — what are rights of trustee against transferees of bankrupt’s property. The rights of a trustee in bankruptcy against persons to whom the bankrupt has transferred his property are such, and oily such, as he derives by and through the provisions of the Bankruptcy Act.</p> <p>3. Bankruptcy, § 28* — when trustee not entitled to have conveyance by bankrupt set aside. Where, on a bill by a trustee in bankruptcy to set aside a conveyance by the bankrupt to defendant, it appears on the face of the bill that the conveyance was made more than 4 months before the petition in bankruptcy was filed and it is not alleged that the conveyance was made by the bankrupt to hinder and defraud his creditors, or that he was insolvent when it was made, or that defendant was not a bona fide purchaser for a fair consideration, but it appears that he purchased in good faith, the fact that certain incumbrances, subject to which he purchased, were void, does not give the trustee the right to set aside the conveyance.</p> <p>4. Bankruptcy, § 28* — when trustee should intervene in foreclosure suit against bankrupt to have trust deeds and notes canceled. Where, prior to and at the time of the appointment of a trustee in bankruptcy, a bill to foreclose trust deeds conveying property of the bankrupt is pending, the trustee cannot assert any rights which he may have with regard to the property involved, the trust deeds and the notes secured by them by filing a bill, whether original or supplemental, in a court having concurrent jurisdiction with that in which the foreclosure suit is pending, to restrain the foreclosure suit and to have the notes and trust deeds declared void and canceled, but his proper course is to intervene in the foreclosure suit.</p> <p>5. Equity, § 148* — when bill is demurrable for lack of. A bill by a trustee in bankruptcy against a holder of notes secured by a trust deed which sets up usury on the part of defendant, prays that an accounting may be had between defendant and the bankrupt, and that if it appears that usurious interest has been paid, the amount shall be determined, the notes canceled and the trust deeds declared void, is demurrable for failing to offer to do equity in case any sum is found to be equitably due the defendant.</p> <p>6. Usury, § 45* — when bill to cancel notes and trust deed is demurrable. Where, on a bill to set aside a conveyance and to cancel certain notes and the trust deed securing them on the ground of usury, it appears from its allegations that the loans for which the notes and -deed were given, were regular and free from usury, the only allegations to the contrary being conclusions merely, a demurrer is properly sustained to the bill.</p> <p>7. Torbens Act — when demurrer sustained to bill of judgment creditor not complying with by filing judgment. Where, on a bill by a judgment creditor to set aside a conveyance by the debtor as in fraud of his creditors, it appears that the conveyance was made a month after complainant recovered judgment, that the title to the property conveyed was registered under the Torrens Act (J. & A. 1 2284 et seq.) and that no attempt was made to file a certificate of complainant’s judgment with the Registrar of Titles, as was essential under the Torrens Act (J. & A. 2284 et seq.) to render it a lien on the property, until after the conveyance to defendant, a demurrer is properly sustained to the bill.</p> <p>8. Appeal and error, § 198* — lacle of jurisdiction of Appellate Court of constitutional question. The Appellate Court has no authority to declare any act of the legislature unconstitutional and void, but where such a question is involved the proper course is an appeal to the Supreme Court.</p> <p>9. Appeal and error, § 200* — when validity of act is not involved. The question of the validity of an act cannot be said to be involved in an appeal where it is not raised in the trial court but first appears in appellant’s reply brief.</p> <p>10. Mortgages, § 470* — when judgment creditor may have relief in foreclosure suit. A judgment creditor with a valid lien against property involved in a foreclosure suit, subject to such rights as the complainant may have by reason of the notes and trust deed sought to be foreclosed, may obtain full relief in the foreclosure suit.</p> <p>11. Injunction, § 28* — when foreclosure suit not enjoined. A foreclosure suit will not be enjoined for the relief of a creditor who may obtain full relief in the foreclosure proceeding, and this rule is not affected by the fact that the parties to the injunction proceeding are not the same as the parties to the foreclosure suit, as the purpose of the rule is to protect the rights of courts rather than of parties, to avoid conflict of jurisdiction and to prevent confusion and delay in the administration of justice.</p> <p>12. Equity, § 263* — when supplemental hill proper. Where the parties are at issue upon the original bill, and facts arise which show that it is necessary to pray for further relief or for additional discovery, or if new charges are required to be made, it is proper to introduce such additional matter by a supplemental bill.</p> <p>13. Equity, § 263* — when supplemental hill may he brought. A supplemental bill may be brought not only to insist upon the relief prayed in the original bill, but also to insist upon other and different relief from that sought in the original bill, where subsequently arising facts require it.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 14* — what constitutes prima facie case in action of first class for services rendered under contract, Where, in an action of the first class in the Municipal Court of Chicago to recover for services rendered under a contract and for a breach of the contract, plaintiff puts defendant on the stand and through him introduces evidence that an itemized account of the charges for such services, which was shown the witness, had been checked up by defendant’s employees and that it correctly stated the amount that defendant’s books showed to be due after being so checked, a prima facie case is made out as to the charges for services and a motion to instruct the jury to find for defendant is properly overruled, even though no evidence is introduced by plaintiff, in presenting his case, regarding the issues raised by defendant’s affidavit of merits as to plaintiff’s alleged failure to do the various things called for on its part under the contract.</p> <p>2. Appeal and error, § 538* — when error in refusing to instruct jury to find fof defendant is not reviewahle. Denial of a motion to instruct the jury to find for defendant at the close of plaintiff’s evidence cannot be urged as error, where the .motion was not renewed at the close of all the evidence.</p> <p>3. Appeal and error, § 538* — when refusal to direct verdict for defendant is reviewahle. The ruling of the trial court, made after defendant had rested, denying a motion, made at the close of plaintiff’s case, to instruct the jury to find the issues for the defendant as to one of the items of plaintiff’s claim, is properly reviewahle where the evidence in rebuttal following the motion had nothing to do with such item.</p> <p>4. Warehousemen, § 23* — when waiver of full compliance with contract for delivery of specified amount of goods for storage is shown. In an action to recover for the breach of a contract which called for the delivery by defendant of a certain quantity of goods for storage, evidence that defendant stated to plaintiff’s agent that he feared that he would not be able to deliver such quantity, but would go out and get sufficient goods to fulfil the contract if plaintiff insisted, whereupon the agent told him that plaintiff would not be technical but that defendant should do the best he could, held to show a waiver by plaintiff of full compliance with the provision requiring defendant to deliver the specified amount of goods for storage.</p> <p>5. Principal and agent, § 8* — when agent shown to have authority to waive full compliance with storage contract. In an action to recover for the breach of a contract requiring defendant to deliver to plaintiff for storage a certain number of barrels of apples, the manager of plaintiff’s storage warehouses, who negotiated dealings with defendant which resulted in the contract, had charge of soliciting plaintiff’s storage business and of the storage plant and was authorized to make storage contracts binding, on plaintiff, held to have authority to waive full compliance with the provision as to the number of barrels which should be delivered.</p> <p>6. Appeal and error, § 1424* — when errors as to set-off are harmless. Where a defendant filing a statement of set-off fails to make out a case on his set-off and, under the evidence, is not entitled to have any allowance upon his claim, errors having to do with his claim are harmless.</p> <p>7. Warehousemen — what is measure of damages for injury to stored goods. Where, in an action on a contract for the storage of goods, defendant files a claim of set-off for damages to goods stored with plaintiff, his measure of damages is the difference between the fair market value if they had been withdrawn from storage in good condition at seasonable times and the amount which he was able to obtain for them in their damaged state.</p> <p>8. Warehousemen, § 27* — when damages for injury to stored goods not shown. In am action to recover under a contract for the storage of goods, wherein defendant filed a claim of set-off for damages to goods stored with plaintiff, evidence held insufficient to show the damages to the goods in question, in that it failed to show of what the goods consisted, their fair market value or that after they were damaged defendant sold them for their market value in- their then condition.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 448* — when party estopped to bring second action. One who, without fault or fraud of the adverse party, takes judgment for a sum less than is actually claimed, is estopped to bring a second action for any balance due him before the entry of judgment.</p> <p>2. Judgment, § 473* — when creditor not bound by on note. The fact that judgment is entered by an indorsee on notes given for an amount incorrectly believed by a debtor and creditor to represent the amount due from the former to the latter does not preclude the creditor, who was not a party to the action by the indorsee, from thereafter bringing a separate action against the debtor to recover the additional sum actually due the creditor at the time the notes were delivered.</p> <p>3. Action, § 55* — when cause of may not be split. One cannot split a cause of action for a single breach of contract and bring several actions thereon.</p> <p>4. Payment, § 6* — when acceptance of notes does not prevent recovery of balance of debt due. Acceptance of a debtor’s notes by a creditor in the erroneous belief that they represent the amount due him does not prevent him from compelling the payment of any additional amount actually due him, even though he has negotiated the notes.</p> <p>5. Sales, § 329* — when joint liability may be found on contract for coal. In an action to recover a balance due on a contract for coal sold for use in an apartment house, brought against two defendants, a joint liability may he found, even though one defendant testifies that he was the owner of the house, where the other defendant signed notes given for an amount incorrectly believed to represent the total amount due, was made a defendant to the proceedings and did not deny joint liability under oath.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Abstract of the Decision.</p> <p>Appeal and ebrok, § 1744* — when judgment affirmed. Even though defendant perfected an appeal from an order overruling a motion to vacate the judgment, if there is a failure to preserve, by a bill of exceptions, the affidavit in support of the motion, there is nothing to review and the judgment will be affirmed.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry M. Eisheb, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Richabdson, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Abstract of the Decision.</p> <p>1. Husband and wm;, § 217* — when shown that wife was living apart from husband without fault of her own. On a bill by a wife for separate maintenance where it appeared that defendant cut off complainant’s account at the grocery, meat market and other stores, shut off the gas and electric light in their apartment and refused to pay rent therefor and left complainant, and the testimony tended to show that defendant consorted with other women, evidence held sufficient to show that complainant was living apart from defendant without her fault.</p> <p>2. Husband and wife, § 243* — what is proper monthly allowance to wife in separate maintenance suit. The allowance to a wife, in a separate maintenance suit, of the sum of $65 per month was proper, although during the marriage the wife had earned $1,550 as a school-teacher, where she was in poor health at the time of trial and a surgical operation was, according to a medical witness, necessary, and the husband had been earning $4,100 per year.</p> <p>3. Husband and wife, § 243* — what is not excessive allowance to wife for surgical operation. In a separate maintenance suit, the allowance of the sum of $300 for a necessary surgical operation for the wife was proper where the husband had an income of $4,100 per year.</p> <p>4. Husband and wife, § 265* — when application to vary monthly allowance to wife is proper. Where a wife, in a separate maintenance suit, has been awarded a specific sum payable monthly on account of her poor physical condition, and where she would otherwise be able to support herself, if her condition or the financial circumstances of the husband materially change in the future, an application to vary the allowance will be proper.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 82* — when affidavit in support of •motion to vacate by confession is insufficient. An affidavit presented in support of a motion to vacate a judgment by confession, under a power of attorney in a lease against officers of a corporation individually leasing the premises, presents no meritorious defense In an allegation that the corporation occupied the premises and paid the rent accruing during the time of such occupation.</p> <p>2. Landlord and tenant, § 443* — how lease cannot he terminated. A lease cannot be terminated contrary to its covenants by parol.</p> <p>3. Contracts, § 251* — hoiv may not he modified. A sealed executory contract cannot he changed, altered or modified by parol.</p> <p>4. Judgment, § 82* — when denial of motion to vacate hy confession is proper. ■ The trial judge does not abuse his discretion in denying a motion to vacate a judgment hy confession where there are no facts stated, in an affidavit in support of a motion to vacate the judgment, which constitute any defense upon the merits.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>1. Municipal corporations, § 1038* — when evidence sustains verdict for injuries due to building material on sidewalk. In an action to recover for personal injuries alleged to have been received by coming in contact with building material piled on a sidewalk, evidence held sufficient to sustain a verdict for plaintiff.</p> <p>2. Witnesses, § 214* — when party is bound by answer to question on cross-examination. If, in cross-examining a witness as to matters outside of the direct examination, counsel for a party is surprised by his answers by reason of their being contrary to a written statement by him on a prior occasion, counsel may ask him particularly about such former statement to refresh his memory or to awaken his conscience, but if the witness denies i: aking such contrary statements, the party its concluded by the answers.</p> <p>3. Witnesses, § 278* — when impeachment as to matters elicited on cross-examination is improper. Where a party cross-examines a witness as to matters not brought out on the direct examination, such testimony must be considered as affirmative testimony offered by the one who elicits it, and the latter cannot impeach the witness as to such matters.</p> <p>4. Municipal corporations, § 1038* — who cannot complain of instruction setting forth ordinance on keeping sidewalks unobstructed. In an action against a property owner and a building contractor to recover for personal injuries alleged to have been received at night by reason of the storage of building material on the sidewalk adjacent to property on which the building was being constructed, the defendant contractor cannot complain of an instruction setting forth municipal ordinances, introduced in evidence, which provide that in the construction of a building, a sidewalk not less than 6 feet in width shall at all times be kept unobstructed for passage in front of the property and require the display of red lanterns on materials in streets and alleys, such ordinances being applicable to contractors as well as to property owners.</p> <p>5. Appeal and error, § 1547* — when instruction assuming facts is not reversibly erroneous. Even though an instruction is improper because assuming as a fact something which is properly a question for the jury and as tending to mislead, it is not ground for reversal where, under the evidence in the case, it did not work prejudice.</p> <p>6. Negligence, § 46* — liability of owner of property for of independent contractor. As a general rule, the owner of property is not liable for the negligence of an independent contractor.</p> <p>7. Negligence, § 46* — what is effect of delegating act to independent contractor. Where the doing of an act which one causes to be done casts upon him a duty, he cannot escape responsibility by delegating it to an independent contractor.</p> <p>8. Negligence, § 46* — when liability for nonperformance of duty imposed by ordinance or statute may not be evaded. Liability for the nonperformance of a duty imposed upon one by a statute or municipal ordinances cannot be evaded by delegating the work to an independent contractor.</p> <p>9. Municipal corporations, § 1038* — when otoner of property is liable for injuries due to storage of building materials on sidewalk. The owner of property on which a building is being eonstructed is liable for the negligence of the building contractor in failing to maintain the sidewalk in a safe condition for use by the public, while used by the contractor for the storing of building materials.</p> <p>10. Damages, § 141* — when not excessive. A verdict of $7,000 for injuries to a 4-year-old boy, resulting in the loss of sight in one eye, is not excessive.</p>

<p>1. Appeal and ebbob, § 1820*- — when Circuit Court has jurisdiction of case transferred to law side upon reversal and remandment. The Circuit Court, when it has jurisdiction of the parties and subject-matters, has jurisdiction of a cause which, on an appeal from its decree, has been reversed and remanded by the Supreme Court, on the ground that equity had no jurisdiction and has been reinstated and transferred to the law side, without regard to whether section 40 of the Practice Act (J. & A. If 8577) applies to the cause.</p> <p>2. Statutes, § 243* — when given prospective effect. As a general rule a statute will be given a prospective rather than a retrospective effect in construing it, unless the legislature’s intention that it have a retrospective effect is clearly apparent.</p> <p>3. Statutes, § 245* — when not given prospective effect. The general rule that statutes are to be prospectively rather than retrospectively construed is subject to an exception when the statute is remedial and affects practice and procedure only.</p> <p>4. Courts, § 138* — what was purpose of statute permitting transfer of case to proper side of court. In enacting section 40 of the Practice Act (J. & A. If 8577), the purpose of the legislature was to remedy the evil arising from the rule that one commencing his suit on the wrong side of the court cannot afterwards transfer it to the other side.</p> <p>5. Statutes — when given retrospective effect. Section 40 of the Practice Act (J. & A. jf 8577) relating to transfer of case commenced on wrong side of court to proper side, applied to litigation existing at the time it became effective.</p> <p>6. Appeal and error, § 1820* — what need not he alleged in declaration in case transferred from equity to law side after reversal and remandment. Where, on an appeal to the Supreme Court, it has been decided that complainant misconceived his remedy and that equity had no jurisdiction and the cause is reversed and remanded to the Circuit Court and reinstated and transferred to the law side of the court, it is not necessary that plaintiff allege in his declaration the various steps taken in the transfer of the case.</p> <p>7. Appeal and error, § 1820* — when failure to make profert of letters of administration in trial of case transferred to law side upon reversal and remandment is not ground for reversal. Where, pending an appeal from a decree of the Circuit Court, complainant dies and her administrator is substituted and, on the decree being reversed and- remanded, the cause is reinstated and transferred to the law side of the Circuit Court and a declaration consisting of the common counts and an account stated is filed, and afterwards the plaintiff’s death is suggested and her administrator substituted, the fact that no profert is made of the letters of administration of the estate is not ground for reversal.</p> <p>8. Limitation oe actions, § 55* — when statute cannot he interposed. Where a suit in equity, which was commenced within the statute of limitations, is, on appeal to the Supreme Court, reversed on the ground that the remedy had been misconceived and is remanded and is thereupon reinstated on plaintiff’s motion and transferred to the law side and a declaration filed, the statute of limitations cannot be interposed in the action at law.</p> <p>9. Evidence, § 458* — what constitutes substantial identity of parties in action at law and in suit in chancery. On a bill in chancery in the Circuit Court against several defendants, a decree was entered for complainant against one defendant and was dismissed as to the others, and, pending an appeal by such defendant, complainant died and her administrator was substituted, the Supreme Court reversed and remanded the cause and it was reinstated in the Circuit Court and transferred to the law side and, thereafter, plaintiff filed a declaration making the defendant against whom the decree was entered defendant. It was held that there was a substantial identity of parties in the action at law and the suit in chancery.</p> <p>10. Evidence, § 458* — when evidence given in chancery proceeding is admissible on second trial of case transferred to law side. Where, on appeal to the Supreme Court, a decree of the Circuit Court is reversed on the ground that plaintiff misconceived his remedy and is remanded, and is reinstated and transferred to the law side, the subject-matter and transactions involved being the same and the parties and evidence substantially the same in the chancery suit as in the action at law, evidence given on the chancery proceeding is properly admitted in the action at law, no complaint being made that ample opportunity for cross-examination of the witnesses was not given in the chancery suit.</p> <p>11. Witnesses, § 195* — what memorandum may be used to refresh memory. Whether a memorandum used by a witness for refreshing his memory was made by the witness or by some one else is immaterial.</p> <p>12. Witnesses, § 195* — when not improperly allowed to refresh memory from memorandum. It is not ground for reversal that a witness was permitted to refresh her recollection by using a memorandum which was in the nature of an index to enable the witness to refer to the books involved in the case.</p> <p>13. Appeal and error, § 1733*- — when ruling on evidence is law of case on second appeal. The ruling on a former appeal as to the competency of the testimony of a witness is the law of the case on the second appeal with regard to the competency on the second trial of testimony of such witness which is substantially the same as on the first trial.</p> <p>14. Assumpsit, Action of, § 89* — when advancement of money and promise of payment shown. In an action for money had and received, the evidence held sufficient to show that money advanced by plaintiff’s intestate to defendant was advanced by her for the purchase of certain stock and that he agreed to pay the money to her.</p> <p>15. Equity, § 322* — when answer is admissible in evidence. Where a chancery decree of the Circuit Court is reversed by the Supreme Court on the ground that equity had no jurisdiction and the cause is remanded and it is reinstated on complainant’s motion and transferred to the law side, defendant’s answer in the chaneery, which is a part of the files in the case and was made on behalf of defendant to the very matters in controversy, may be read in evidence in the action at law, even though there is no proof that the signature to the answer was that of defendant and though answer under oath was waived in the bill and an amended answer was subsequently filed.</p> <p>16. Interest, § 80* — when instruction on right to recover is proper. In an action for money had and received, where it is not disputed that there was an express agreement on defendant’s part to pay some one 6 per cent, on an amount which he admitted owing some person or corporation, it is not error to give, at plaintiff’s request, an instruction that if the jury find for plaintiff and find that defendant agreed to pay 6 per cent, interest, they shall include interest at this rate on the amount they find due.</p> <p>17. Usury, § 2* — what constitutes. Usury is the taking or contracting for more than the lawful rate of interest for the loan of money.</p> <p>18. Usury, § 46* — necessity of pleading. Where one who agreed orally to pay 6 per cent, interest on money loaned him does not, in an action to recover such loan, plead usury, he may be required in the verdict against him to pay the rate of interest which he agreed to pay.</p> <p>19. Instructions, § 137* — when refusal of instruction is not ground for reversal. It is not ground for reversal that, in an action for money had and received, the court refused to give an instruction to the jury to disregard certain items, where such an instruction would have been inconsistent with defendant’s admission as to the amount he owed some one and the evidence is sufficient to support a finding that whatever he owed was owed to plaintiff, and also supports a finding in plaintiff’s favor as to the items in question.</p>

<p>Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Suxxivan, Judge, presiding. Heard in the Branch Appellate Court.</p>

<p>1. Automobiles and garages, § 7* — when recovery may he had on automobile theft insurance policy after finding and tender of automobile. Where an automobile insurance policy provides that the loss shall be payable sixty days after notice, proof of loss, etc., an insured whose car is stolen may recover thereunder where he complies with the provisions of the policy as to notice, proof of loss, etc., although the car is subsequently found and tendered him by the insurer, where it was found more than sixty days after the giving of notice and proof of loss, notwithstanding the policy also provides that it shall be optional with the insurer “to repair, rebuild or replace the property lost or damaged with other of like kind and quality within a reasonable time, on giving notice, within thirty days after the receipt of the sworn statement of loss herein required, of its intention so to do; but there can be no abandonment to this Company of the property described.”</p> <p>2. Insurance, § 120* — how contract construed in case of doubt. In case of doubt, an insurance contract is to be construed in favor of the insured rather than of the insurer.</p> <p>3. Insurance, § 171* — when assignment without insurer’s consent does not avoid policy. The provision in an insurance policy that it should be void if assigned except with the insurer’s assent cannot operate to defeat a policy assigned by the insured after the loss for which recovery under the policy is sought had taken place.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>1. Automobiles and oarages, § 3* — when evidence supports verdict for injuries due to collision between automobile and wagon. In. an action to recover for personal injuries received by a collision between an automobile of defendants turning the corner at a rate of from 5 to 15 miles an hour and a wagon standing at the curb and having a light, evidence held sufficient to support a verdict for plaintiff.</p> <p>2. Venue, § 14* — when petition for change of is properly denied because not made in time. A petition by defendant for a change of venue on the ground of the prejudice of the trial judge is properly denied as not having been made in apt time where it appears that the suit was instituted in September, 1914, was dismissed for want of prosecution in November, 1915, the order of dismissal was vacated by stipulation before such judge in March, 1916, and the cause reinstated, the cause came on to be heard in April, 1917, whereupon it was continued, on plaintiff’s motion, to the following day, on which day plaintiff waived trial by jury and defendant petitioned for a change of venue, such petition not stating, however, when defendant first learned of the judge’s prejudice.</p>

<p>Abstract of the Decision.</p> <p>1. Appeai and error, § 1697* — when error in placing case on short-cause calendar is not waived. Under the rule of the Circuit Court that no case shall be noticed for trial on the short-cause calendar until it is at issue, a case cannot be placed on that calendar until an issue of fact has been formed on each of the pleas filed, and where, after a judgment by confession on a note has been reopened and defendant has filed a plea of the general issue and special pleas setting up want of consideration and failure of consideration, error in placing the ease on the short-cause calendar over defendant’s objection with the pleadings in that condition and in refusing to strike it therefrom on defendant’s motion is not cured by the fact that replications were filed by the plaintiff the day before the cause was reached for trial on the short-cause calendar, and defendant’s objections are not waived, where, after again moving to strike the cause from the short-cause calendar when it was reached, he took no part in the trial.</p> <p>2. Bills and notes, § 364* — when replications setting up want and failure of consideration are not demurrable. In an action to recover on a promissory note, replications to special pleas setting up want of consideration and failure of consideration are not demurrable where, though loosely drawn and addressed to the various paragraphs of which the pleas are composed instead of to the pleas as such, they set forth that a valuable consideration for the note passed from plaintiff and in due course.</p> <p>3. Pleading, § 130* — when conclusion of replication is sufficient. It is sufficient if the conclusion of a replication is, in substance, to the country, even though it does not so conclude in terms.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 65* — how contract construed as to minimum amount buyer required to buy during specified period. Where a contract for the purchase of goods provides that the seller agrees to sell and the huyer to buy during a period of eleven months a specified number of tons of the goods “with a leeway of five per cent, over or under in quantity per year,” the latter provision is to be construed as fixing the minimum amount which the seller can compel the buyer to take and the maximum amount which the buyer can compel the seller to deliver, and the amount so fixed is not controlled by the fact that such provision is followed by a further provision that the goods are for the buyer’s use, in a paper published by it and for its continuous use during the eleven months.</p> <p>2. Contracts, § 187* — when interpretation by acts of parties not controlling. The rule that the courts will look to the acts of the parties indicating their interpretation of the contract, where its terms are ambiguous, will not be permitted to prevent the enforcement of the legal effect of a contract which is unambiguous in language and meaning.</p> <p>3. Saues, § 64* — when not shown that purchaser construed contract as only requiring seller to furnish goods sufficient for requirements of buyer’s business. The conduct of a purchaser of goods under a contract which provides that the seller will furnish him a certain amount of goods for a specified purpose during the life of the contract, in seeking to procure from the seller additional goods for its use, held not to show that the purchaser construed the contract as requiring the seller to furnish him only such amount as the purchaser’s business required, rather than as calling for the furnishing of a specified amount.</p> <p>4. Sams, § 64* — when contract for paper not construed as requirement contract for amount needed by purchaser. A contract between the manufacturer of paper and a purchaser whereby the manufacturer agreed to sell and the purchaser to buy and receive for its use in the publication of a paper published by it and for its continuous use during eleven months, from one specified date to another, a certain number of tons of paper, “with a leeway of five per cent, over or under in quantity per year,” shipments to be at the rate of a specified number of tons per month, held not to be a requirement contract binding the manufacturer to supply so much only as was needed by the purchaser, but to bind him to deliver and the purchaser to take the number of tons stipulated in the contract.</p> <p>5. Customs and usages, § 15* — when custom cannot control terms of contract. Where the terms of a contract are unambiguous they control, notwithstanding there is a difference between them and a custom shown to obtain in the business as to which the contract was made.</p> <p>6. Sams, § 373* — when waiver of provision of contract as to amount of goods to be supplied not shown. In an action to recover under a contract to supply a certain quantity of goods, evidence held insufficient to show a waiver of the provision as to the quantity to be supplied.</p> <p>7. Sams, § 17* — lach of consideration for agreement to pay price for goods in excess of contract price. The agreement by the purchaser of goods that it will pay for such goods at a price in excess of that fixed in the contract under which the goods were sold, held to be void and unenforceable as based on no consideration.</p> <p>8. Sales, § 381* — what are rights of vendee upon refusal of vendor to perform contract. Where the vendor refuses to perform his contract, the vendee may recover his damages without having actually purchased the goods elsewhere.</p> <p>9. Sales, § 376* — what is measure of recovery by buyer upon refusal of seller to supply goods. The difference between the contract price and the price at which the vendor of goods was willing to supply the goods to the vendee after the vendor’s breach of the contract is the measure of the vendee’s recovery, even though a higher price was asked by others than the vendor.</p>

<p>1. Municipal Court of Chicago, § 13* — when statement of claim for rent is sufficient. A statement of claim in the Municipal Court of Chicago which recites that the claim is for rent and specifies the months for which the rent is claimed and the amount claimed is sufficient.</p> <p>2. Landlord and tenant, § 437* — what are rights of landlord against tenant holding over after expiration of term. Where a tenant remains in possession after the expiration of the term set forth in his written lease without any new contract with the landlord, the latter may treat him either as a trespasser or as a tenant.</p> <p>3. Landlord and tenant, § 88* — what constitutes election to treat tenant holding over as tenant for another year. By accepting the payment by a tenant under a lease for a year, of rent for several months after the expiration of his written lease at the rate provided in such lease, the landlord elects to treat him as a tenant and the tenant becomes such for another year upon the same terms and for the same rent as were specified in the written lease, whether the lease provided for an annual rental payable in monthly instalments or for a year’s occupancy at a stipulated monthly rental, and whether it was for a year or for a year and a fraction thereof.</p> <p>4. Frauds, Statute of, § 93* — when tenant is estopped to set up. It is not necessary that a lease be signed by both landlord and tenant in order to comply with the Statute of Frauds, but the tenant’s signature alone is sufficient, and where he has signed, taken possession and paid rent to the landlord, he is estopped to set up the Statute of Frauds.</p> <p>5. Landlord and tenant, § 330a* — when exclusion of evidence of tenant giving notice of intention to vacate is immaterial. In an action for rent against a tenant holding over after the termination of his term under a written lease, the exclusion of evidence of his having given notice, before the expiration of the original term, of his intention to vacate, held not ground for reversal.</p> <p>6. Witnesses, § 224* — when exclusion of questions on cross-examination of landlord as to efforts to re-rent vacated premises is proper. In an action for rent, wjiere neither the statement of claim nor the affidavit of merits makes any reference to plaintiff’s efforts to re-rent the premises after defendant had vacated them before his term expired, it is not error to exclude questions in regard thereto on the cross-examination of plaintiff, where the only question on his direct examination which had any bearing thereon was whether the premises had remained vacant after defendant had abandoned them and whether he received any income therefrom for the period for which he was suing to recover rent.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John P. Haas, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Abstract of the Decision.</p> <p>1, Account, § 35* — when finding in favor of complainant on bill for accounting and to impress property with trust is proper. On a bill for an accounting and to impress certain property with a trust, evidence held to support a finding and conclusion of the master in favor of complainant.</p> <p>2. Pbincipal and agent, § 42* — when rule as to binding of prim cipal by unauthorized act of agent not disavowed not rigorously applied. The rule that one neglecting promptly to disavow an unauthorized act of his agent makes the act his own will he readily applied where the rights of an innocent third person are involved, but not so rigorously in cases where a principal seeks relief directly against the agent for injuries resulting from the agent’s fraudulent, disloyal and secretive conduct.</p> <p>3. Equity, § 258* — when refusal to allow amendment of answer is proper. Where, on a bill for an accounting and to impress property with a trust, defendant files an answer simply denying the acts complained of, it is not error to refuse to permit defendant, after the master has prepared his report, to amend his answer so as to let in proof to show that complainant had ratified and acquiesced in those acts which the evidence showed the defendant had committed, especially where there is no claim of express ratification or acquiescence and the evidence before the master supports a finding that there was no sort of acquiescence or ratification.</p>

<p>Error to the County Court of Boone county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in this court at the October term, 1917.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1917.</p>

<p>Appeal from the Circuit Court of Plenry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>Appeal and ebbor, § 1802* — when judgment reversed and remanded mthout decision on merits. The judgment should be reversed and the case remanded to the trial court with directions to render a judgment against the two defendants on the verdict, without a decision on the merits, where an action is brought against the two members of a partnership to recover compensation for the sale of real estate, and, although one partner only is served, the other appears and they both file pleas, and a verdict is returned for plaintiff and a judgment rendered against the partner served, and he alone appeals.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 263* — when corporation may not accept favorable part of contract made by officer and reject unfavorable part. A corporation may not accept the favorable part of a contract for the sale of an automobile, pursuant to which its secretary, the holder of the majority of stock, who acted as a sales agent, agreed to sell a new automobile to a person for a specified sum and to give credit for a used automobile, the purchaser, however, to advance the part of the purchase price represented by the agreed value of the used car, and such secretary guaranteed that he would sell the used car within a specified time and refund the agreed value thereof, by retaining the check for the purchase price of the new car, and deny liability as to the unfavorable part of the contract on the ground that neither the corporation nor the secretary had the power to make such a guaranty.</p> <p>2. Sales, § 51* — when contract for exchange of automobiles and refunding of sum advanced representing value of used car is shown. Evidence held sufficient to show a contract for the sale of an automobile under which the purchaser agreed to pay the entire sum in cash except the agreed value of an exchanged car and to loan or advance the value of the latter, and the corporation agreed to sell the old car within a specified time and refund the sum advanced.</p> <p>3. Sales, § 181* — when equitable title to exchanged automobile is obtained. The seller of a new automobile, who receives an advance or loan from the purchaser represented by the value of a used car, which is to be taken as part payment and which the seller agrees to sell within a certain time and to refund the loan, is at least the equitable owner of the used car and improvements made thereto by it upon payment of a judgment against it for the amount of such advance, although the contract provides that title to the used car shall remain in the owner of such car until the sale is made.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1918. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>Appeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>Appeal from the Circuit Court of Woodford County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>Appeal from the Circuit Court of Mercer county; the Hon. William: T. Chtjbch, Judge, presiding. Heard in this court .at the April term, 1918.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1659* — when error in rendering verdict is cured by remittitur. Error on the part of a jury in rendering a verdict for a certain amount in a personal injury action, on the erroneous assumption that plaintiff was entitled to recover for a permanent injury, is cured by a remittitur where there is no suggestion that the judgment is then excessive.</p> <p>2. Master and servant, § 717* — when giving of warning of intention to let loose of roye attached to colt is question for jury. It was a question for the jury, in an action by a servant against his master for personal injuries alleged to be due to the master letting loose, without warning, of a rope with which they were taking a large, unbroken colt out of a barn, as the result of which the rope at once wrapped around plaintiff’s leg, causing it to be thrown against a post, whether defendant warned plaintiff before letting go of the rope, where the evidence as to such warning was conflicting.</p> <p>3. Masted and sebvant, § 717* — when question for jury whether master negligent in failing to warn servant of intention to let loose of rope attached, to eolt. It was a question for the jury, in an action by a servant against his master for personal injuries, alleged to be due to the master letting loose, without warning, of a rope with which they were taking a large, unbroken colt out of a barn, as the result of which the rope became wrapped about one of the servant’s legs and threw it against a post, whether the letting loose of the rope without warning was something that an ordinarily prudent man would not have done under the same or similar circumstances.</p> <p>4. Tbial, § 199* — when refusal to direct verdict is proper. It is proper to refuse to direct a verdict, in an action for personal injuries, where the evidence is conflicting.</p> <p>5. Negligence, § 133* — when defendant may prove part of charge. In actions for torts, plaintiff may prove part of his charge if there be enough proof to sustain it.</p> <p>6. Pleading, § 183* — what defect must be taken advantage of by special demurrer. If a count in a declaration avers different sets of facts, either of which will justify a recovery, advantage of that defect must be taken by special demurrer.</p> <p>7. Instbuctions, § 151* — when refusal proper. It is not error to refuse requested instructions covered by the main charge.</p> <p>8. Masted and sebvant, § 799* — when instruction on liability of master letting loose of rope attached to unbroken colt without warning employee is properly refused. An instruction, in an action by a servant against his employer to recover damages for personal injuries, alleged to be due to the master letting loose, without warning, of a rope with which they were taking a large, unbroken colt out of a barn, as the result of which the rope at once wrapped around plaintiffs leg, causing it to be thrown against a post, that if at the time and under the circumstances a reasonable and prudent man in the place of defendant would have believed there was danger in longer holding onto the rope, then the defendant, if he acted on a fear of receiving great bodily injury and released his hold, would not be liable for damages to the plaintiff as the result of his letting go the rope, was properly refused.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations, § 107*- — what is sufficient proof of ordinance. Section 4 of article 5 of the Cities and Villages Act (J. & A. T 1337), relating to proof of ordinances, is complied with where an ordinance printed in a hook contained in the revised ordinances of a village, and purporting to be published by authority of the board of trustees of the village and shown by the certificate of the village clerk, under the corporate seal of the village, to have been so published, is introduced in evidence.</p> <p>2. Cokoners, § 3* — what is not within province of jury. It is not within the province of the coroner’s jury to fix the civil liability of any one growing out of an accident resulting in the death of an injured person.</p> <p>3. Evidence, § 232* — what finding in coroner's verdict is inadmissible in action against railroad company for death of pedestrian. In an action against a railroad company to recover for the death of a pedestrian who was struck by one of defendant’s trains as it was passing through a village, that part of the coroner’s verdict containing a finding that the signal service was out of repair and that the speed of the train was excessive and in violation of the village ordinance, was inadmissible.</p> <p>4. Coroners, § 3*- — what is proper finding at inquest over body of person hilled by railroad train. Where a person is killed accidentally by being run over or struck by a railroad train, the legitimate object of the coroner’s inquest is fulfilled by a finding that the death of deceased was caused by being run over or struck by a railroad train, without adjudicating whether it was due to any one’s negligence.</p>

<p>Appeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1918.</p>