Volume 212 — Illinois Appellate Court Reports

<p>1. Carriers, § 134*—when shipper is entitled to recover for loss of corn in transit. A shipper which ships corn to its own order, with a provision in the hill of lading to notify the purchaser, and draws , drafts on the purchaser, indorses them and the bills of lading, and deposits them all in a bank, is entitled to recover for grain lost in transit, although the drafts have been paid and the bills of lading surrendered to the carrier, the only corn sold being that actually delivered.</p> <p>2. Witnesses, § 224*—when denial of right of cross-examination is improper. In an action by a shipper against a carrier for loss of corn in transit, where plaintiff made proof of the amount of grain shipped in each car by the testimony of its agents who weighed it just prior to its being placed in the cars, it was improper to refuse to allow defendant to cross-examine the witnesses as to their recollection of weighing the corn and their knowledge of the scales and the manner of conveying the grain to the car, to determine whether the scales were correct and whether all the corn weighed went into the car.</p> <p>3. Commerce, § 5*—what is effect of Carmack Amendment on liability of carrier for loss or damage to interstate shipment. The liability of a carrier for loss or damage to an interstate shipment of grain is governed by the Carmack Amendment to the Interstate Commerce Act, and all State statutes and regulations concerning such shipments are superseded.</p> <p>4. Carriers, § 121*—when not liable for shrinkage of grain in interstate shipment. A carrier conveying an interstate shipment of grain is not liable under the Carmack Amendment for shrinkage unless such shrinkage is shown to be due to its own fault.</p> <p>5. Carriers, § 138*—when evidence as to shrinkage of grain from natural causes is improperly excluded. In an action by a shipper against an interstate carrier for loss of part of an interstate shipment of grain, it was error to refuse to permit the carrier to show that the loss was caused in part, at least, by shrinkage from natural causes.</p> <p>6. Carriers, § 137*—presumption that shipper knows provisions of bill of lading. The shipper of an interstate shipment of grain is presumed to know the provisions of the bill of lading.</p> <p>7. Carriers, § 137*—presumption that contract for interstate shipment of grain is valid. It must be presumed that a contract for the conveyance of an interstate shipment of grain, as disclosed by the bill of lading, is a binding one.</p> <p>8. Carriers, § 143*—when provision in bill of lading is controlling as to measure of damages for loss of grain. The condition in a bill of lading for an interstate shipment of grain, that the liability for loss shall be measured by the value of the grain at the place of shipment, is valid, and controls the measure of damages.</p> <p>9. Instructions, § 120*—when improper because not based on evidence. It is error to give an instruction concerning the stipulated measure of damages for loss of grain by a carrier in transit where there is no evidence to support it.</p> <p>10. Instructions, § 151*—when refusal proper. It is not error to refuse requested instructions which are covered by given instructions.</p> <p>11. Instructions, § 81*—when properly refused because referring to particular portions of evidence. It is proper to refuse-requested instructions where they are misleading in referring to particular portions of the evidence.</p> <p>12. Evidence, § 23*—what is nature and effect of prima facie. Prima facie evidence is not conclusive evidence, but is evidence sufficient to prove the averment of which it is prima facie evidence, unless and until it is rebutted by evidence of equal weight.</p> <p>13. Carriers, § 137*—what does not tend to contradict prima facie evidence of bills of lading as to amount of grain received by carrier. The fact that the freight for shipments of grain is settled for by the purchaser upon the basis of weight at the destination. does not tend to contradict the prima facie evidence shown by the bills of lading that the carrier received a specified amount of grain.</p> <p>14. Carriers, § 137*—when burden of proof is shifted to carrier in action for loss of grain. In an action against a common carrier by a shipper to recover for loss of grain in transit, while some proof is required that the grain was not delivered, but slight evidence will be sufficient to shift the burden of proof upon the carrier.</p> <p>15. Carriers, § 137*—when burden of proof is on carrier to show discrepancy in weights at points of shipment and destination. In an action by a shipper against a carrier for loss of grain in transit, where the shipper introduces evidence tending to show a discrepancy in the weights at the points of shipment and destination, the burden of explaining it is on the carrier.</p> <p>16. Carriers, § 141*—when instruction on burden of proof in action by shipper for loss of grain properly refused. In an action by a shipper against a carrier for loss of grain in transit, an instruction, that defendant was not required to establish by affirmative evidence any defense to plaintiff’s cause of action and that the burden of proof was on plaintiff to make out its case by a preponderance of evidence, was misleading, and properly refused.</p>

<p>1. Tbtat., § 283*—when special findings control. Under section 79 of the Practice Act (J. & A. ¶ 8616), when the special findings of fact are inconsistent with the general verdict the special findings control.</p> <p>2. Trial, § 246*—when verdict erroneous as to one defendant must be set aside as to all defendants in action on negotiable instrument. Section 7b of the Negotiable Instruments Act (J. & A. ¶ 7626), which only authorizes the severance of judgments as to defendants defaulted and a trial and judgment as to other defendants, and authorizes a judgment against defendants standing trial who are found liable, and a judgment in favor of such defendants as by the verdict are found not liable, does not, in actions on negotiable instruments, change the common-law rule that where a verdict in an action ex contractu is erroneous as to one defendant it must be set aside as to all defendants standing trial before a jury.</p> <p>3. Evidence, § 459*—when admission of on former trial is error. The admission of the evidence of a party given on a former trial is error where no foundation for the admission thereof, as disclosed by the record on appeal, was laid.</p> <p>4. Principal and surety, § 70*—what is extent of liability of principal on forged note where part of proceeds of new note is used to pay old note. Where a note is paid by a surety with his own money the principal is not liable to the surety for the full amount of a larger note to which his name is forged, the extent of his liability being for the amount of money paid out by the surety for his benefit.</p> <p>5. Evidence, § 128*—when as to amount of note is inadmissible. A promissory note is the primary evidence of its contents and evidence of the amount of the note is inadmissible, if no reason is given for the failure to produce it.</p> <p>6. Estoppel, § 65*—when supposed maker is estopped to deny signature to forged note. If a broker acting for the seller of a note states to the maker the date and amount of a forged note he is offering for sale, and the maker, under a mistake of fact, the note not being shown to him, supposing the note inquired about is the one he in fact signed, and, proceeding on that false assumption, states that the note is his, he is estopped to deny that the signature is his, but if such facts are not fully stated to him he is not bound by such statement.</p> <p>7. Estoppel, § 39*—when person not estopped by act or declaration consistent with good faith. An act or declaration consistent with good faith, the injurious effects of which could not be foreseen or anticipated by any ordinary forecast of mind, does not operate as an estoppel, although injury may result to a third party.</p> <p>8. Bills and notes, § 421*—when evidence as to facts 'connected with conversation between broker and purported maker of forged note is admissible. In an action by the purchaser of a forged note, apparently signed by two persons, against the maker whose name was forged, it was proper for the defendant to show all the facts connected with a conversation by telephone with the broker of the seller relating to the genuineness of the note in suit, after having laid a proper foundation.</p> <p>9. Bills and notes, § 460*—when question for jury whether purported maker of forged note admitted genuineness of signature. In an action on a note against the maker and a purported maker, whose name was forged by the other, where the evidence was conflicting, it was a question for the jury whether such purported maker stated, in the course of conversation over the telephone with the broker for the payee, whether the signature to the note sued on was his.</p> <p>10. Instructions, § 118*—when erroneous. An instruction which has no basis in the evidence is erroneous.</p> <p>11. Trial, § 133*—when error to refer to financial condition of party in argument. In an action against the purported maker of a promissory note, it is reversible error for counsel for plaintiff to refer in his argument to the business success and riches of defendant.</p>

<p>1. Appeal and ebrob, § 25*—when Appellate Court has no jurisdiction. The Appellate Court has no jurisdiction In cases where the validity of a statute is involved.</p> <p>2. Pleading, § 355*—discretion of court as to allowing withdrawal of pleas. It is discretionary with the trial court to allow or refuse to give a defendant leave to withdraw pleas in a cause.</p> <p>3. Pleading, § 355*—when discretion in alloiving withdrawal of pleas not abused. The discretion of the trial court in allowing the withdrawal of the plea of general issue and two special pleas in a case was not abused where plaintiff was not injured by the order allowing such withdrawal.</p> <p>4. Pleading, § 190*—when plea defective in form is bad as against special demurrer. In an action of assumpsit by a road district, comprised within the corporate limits of a city, against the county tax collector to recover taxes collected in such district but not paid over, a plea of payment containing the informal averment that defendant had paid to the officers of plaintiff “all the revenues in his hands that should be paid to or for the use of said plaintiff” is bad as against a special demurrer.</p> <p>5. Pleading, § 190*—how defects in form of plea may be raised. A formal defect in a plea cannot be questioned by a general demurrer, a special demurrer assigning the special objection being necessary.</p> <p>6. Appeal and error, § 1455*—when not reversible error to overrule general demurrer to all of pleas. It is not reversible error to overrule a general demurrer to all the pleas interposed in a case, if a single plea presents a good defense to all the causes of action, where the case is disposed of against plaintiff on the plea that presents a good defense.</p>

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

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

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

<p>Insurance, § 490*—when fraud in procuring release shown. Fraud in the procurance of a release of a life insurance company from liability on a life insurance policy was established where it appeared that the policy had been running. for three years and was, by its terms, incontestable after one year, and the evidence of plaintiff tended to show that the beneficiary had never read the policy and did not know it contained the incontestable provision; that an agent of the insurer went to the beneficiary shortly after the death of insured and told her that her claim had been rejected because there had been a misrepresentation of facts when the application for the policy was made and that the company was not liable but would pay her one-fifth of the policy; that he increased his offer, finally telling her she would have to sign the 'release and accept two-fifths of the amount of the policy or sue the company and get nothing, and that she finally accepted the * money and signed the release and defendant’s agent denied making such statements.</p>

A.ppeal from the Circuit Court of Schuyler county; the Hon. Gut R. Williams, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).

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

Albert Akers, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final). Statement by the Court. Anna E. Hopkins died at Quincy, Illinois, testate. The will was admitted to probate in Adams county in October, 1913, and David W. Mumper, public administrator, on his petition was appointed and qualified as administrator on the day the will was probated.

<p>1. Automobiles and garages, § 3*—when giving of warning on approach of train to crossing is question for jury. In an action by a railroad receiver against the executrix of the will of the deceased owner of an automobile to recover damages for injury to one of plaintiff’s trains because of negligence of such owner in driving his automobile on the track, where there was a conflict in the evidence for plaintiff whether the whistle was blown for 80 rods before reaching the crossing and there was no evidence that the bell was not rung for that distance, defendant having offered no evidence, a question for the jury was presented.</p> <p>2. Instructions, § 134*—when instruction is erroneous as not confining jury to belief from evidence. In an action by a railroad receiver against the executrix of the will of the deceased owner of an automobile to recover damages for injury to one of plaintiff’s trains because of negligence of .such owner in driving his automobile on the tracks at a highway intersection, an instruction that if the jury believed that the collision between the railroad train and the automobile driven by deceased was occasioned purely through and on account of an accident and not on account of negligence on his part, then regardless of other questions in the case their verdict should be in favor of defendant, was misleading and erroneous in not confining the jury to their belief from the evidence.</p> <p>3. Negligence, § 156*—when rule that jury may consider instinct of self-preservation and presumption arising from proof of habitual exercise of due care not applicable. Where eyewitnesses have testified to facts and circumstances surrounding the accident, the rule which entitles a jury to consider the instinct of self-preservation and the presumption which may arise from proof of the habitual exercise of due care does not apply.</p> <p>4. Negligence, § 3*—what is effect of excitement arising from imminent peril induced by own negligence on liability for. A party who, without fault, is damaged by reason of the negligence of another while such other is under excitement arising from imminent peril induced by his own negligence is entitled to recover damages from the party who was the negligent cause of the injury.</p> <p>5. Negligence, § 234*—when instruction on evidence as to liar bility of defendant is erroneous. In an action for negligence, an instruction, that if the evidence was equally consistent with the theory that defendant was negligent ' the jury should find for defendant, was erroneous.</p>

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

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

<p>1. Limitation of actions, § 46*—what is not fraudulent concealment of action. The mere silence of a person liable is not a fraudulent concealment of a cause of action within sec. 22, ch. 83, Rev. St. (J. & A. ¶ 7217), providing that if “a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards,” and there must be some trick or contrivance or affirmative act intended to exclude suspicion and prevent inquiry.</p> <p>2. Limitation of actions, § 46*—what is not fraudulent concealment of cause of action. There is no fraudulent concealment of a cause of action for damages for setting fire to a person’s own barn for the purpose of communicating to the barn of another and destroying it because of the presence of a stallion therein, where the guilty person had threatened to destroy the barn in which the stallion was, and after the fire, when examined by a detective, simply denied Ms guilt, although the stepson of such person, after the death of the latter, disclosed the fact that deceased had told him that he had burned the barn and had asked him to say nothing about it.</p>

<p>1. Appeal and error, § 9*—when writ of error lies. A writ of error lies at common law for the review of final judgments in all cases involving rights or personal liberty, where no right of appeal is provided for by statute.</p> <p>2. Appeal and error, § 21*—when writ of error and not appeal lies. Writ of error and not appeal is the proper procedure for the review of an order committing a husband to jail for neglect to pay an amount awarded under the Act of June 24, 1915 [Callaghan’s 1916 St. Supp. ¶ 3433(1) et seq.], relating to the punishment, as a criminal offense, for the abandonment of a wife or child in destitute circumstances, and the rendition of a temporary order before trial for the support of the wife or child, or both, pendente lite, and authorizing the punishment of a violation of such order as for a contempt of court, since such proceeding by contempt is criminal in its nature, involving the personal liberty of the husband, and the statute makes no provision for an appeal from the order.</p>

<p>1. Appeal and error, § 725*—when cross-bill not considered. The Appellate Court cannot consider on appeal a cross-bill not contained in the record.</p> <p>2. Mortgages, § 23*—what constitutes mere option to buy bach land not rendering deed absolute on its face a mortgage. Where land is conveyed to a person to secure a debt, and, upon the debt becoming due, an agreement is entered into with a third person whereby the latter is to advance the money to pay the debt and receive a deed from the first grantee, and it is further agreed between the original grantors and the second grantee that in lieu of interest the latter shall receive a rental until such time as the original grantors desire and are able to take up the indebtedness, and such second grantee agrees to make a quitclaim deed upon payment of the sum due, the agreement between the original grantors and the second grantee amounts but to an option to buy back the land at some time in the future, if the original grantors should desire and should be able to do so, and such an option does not render a deed absolute on its face a mortgage.</p> <p>3. Mortgages, § 23*—when deed absolute on its face conveys legal title. A deed by the owners of land to another from whom they procured a loan of money, which deed is absolute on its face, conveys the legal title to the grantee,, and his conveyance to a third person furnishing the money to take up the alleged loan passes the legal title to the latter.</p> <p>4. Equity, § 258*—when additional and inconsistent d'efense not set up in amended answer. On a bill by the alleged owners of land against a second grantee to have a deed from the prior grantee to the second grantee declared a mortgage, where the original answer averred that the second grantee became vested with title to the premises by virtue of the deed from the first grantee, an amendment to such answer averring that complainants, for the express purpose of disclaiming any right, title or interest in the premises, and in consideration that the second grantee would buy the premises and lease them to complainants as long as their mother lived, executed a warranty deed to such second grantee, did not set up a defense additional and inconsistent with the defense averred in the original answer.</p> <p>5. Mobtgages, § 29*—what constitutes variance in suit to have deed declared mortgage. There is a variance between the bill and proofs, in a suit by the alleged owners of land against a second grantee to have a deed from a prior grantee to the second grantee declared a mortgage, where it is charged in the bill that the second grantee agreed to reconvey such land when complainants desired and would be able to take up the indebtedness, and there is proof that at the time of the transaction between such second grantee and complainants for taking up of the alleged loan owed by complainants to the first grantee, a written contract was entered into by which the second grantee gave complainants the right to redeem within 5 years.</p> <p>6. Mobtgages, $ 31*—who has burden of proof to show that deed absolute on face is intended as mortgage. The burden rests upon the party alleging that a deed absolute on its face was intended as a mortgage, to establish such fact.</p> <p>7. Mobtgages, § 32*—what is evidence that deeds not intended as. The fact that two successive grantees of land, one of the deeds to which land was from the first grantee to the second grantee, refused to loan money to the original grantors but only offered to advance it upon condition that such grantors execute an absolute deed to the land, is strong evidence that the deeds were never intended to be mortgages.</p> <p>8. Mobtgages, $ 23*—when purchaser from holder of deed procures good title. Where a party having a right to redeem from a mortgage, in form an absolute deed, directs the holder of the legal title to convey the premises to a purchaser, such purchaser takes the title divested of the condition of defeasance.</p> <p>9. Appeal and ebbob, § 1399*—weight of finding of master in chancery. Where a master in chancery saw the witnesses and heard them testify, his finding of facts is entitled to consideration.</p> <p>10. Mobtgages, § 32*—when evidence to show deed to be mortgage carefully scrutinized. Evidence attempting to establish a deed absolute on its face to be a mortgage will be scrutinized with great care, after a delay of 19 years in asserting the right to redeem and after farm values have greatly increased.</p> <p>11. Mortgages, § 32*—when agreement that deed should he in fact mortgage not shown. Evidence held insufficient to show that there was any agreement between complainants and a second grantee that a deed to the latter from a prior grantee, from whom complainants had procured a loan of money, should be in fact a mortgage to secure an alleged debt for money advanced to pay off the loan from the prior grantee.</p>

<p>1. Pleading, § 273*—vdien plea of general issue will stand as plea to amended declaration as amended. A plea of the general issue, which is filed to an original amended declaration and which would have been a good plea to any declaration in the form of action used, will be considered as standing as a plea to the amended declaration as amended, even though no pleas were filed to the declaration after the final amendment and no order was entered to have the existing plea of general issue stand as a plea to the amended declaration as amended.</p> <p>2. Pleading, § 273*—when special pleas will not stand as pleas to amended declaration as amended. Where, after an amendment to a declaration and the sustaining of demurrers to special pleas to the amended declaration, the declaration is again amended, the special pleas will not be considered as standing as pleas to the amended declaration as amended.</p> <p>3. Appeal and error, § 425*—when error in sustaining demurrer to special pleas to amended declaration not preserved for review. The question of error in sustaining a demurrer to special pleas to an amended declaration is not reviewable where the special pleas are not renewed to the declaration as finally amended a second time, and under which the trial is had.</p> <p>4. Pleading, § 466*—when verdict does not cure defect in declaration. If a declaration omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the findings of those which are alleged, a verdict for plaintiff does not cure the defect.</p> <p>5. Workmen’s Compensation Act, § 12*—non-necessity that employer, in action against third person, aver acts showing election by latter not to be bound by act. In an action under section 29 of the Workmen's Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)] by an employer, a telephone company, against an electrical company to recover for the death of an employee of plaintiff, alleged to be due to the negligence of defendant, it is not necessary that plaintiff aver any acts on the part of defendant tending to show that it had not elected not to be bound by the act, where it is averred that defendant is an employer engaged in the business of electrical work, since by section 2 of the Act [Callaghan’s 1916 St. Supp. ¶ 5475(2)], every such employer is conclusively presumed to have filed notice of his election to be bound by the act, unless and until a notice in writing to the contrary is filed with the Industrial Board and furnished personally to his employees or posted as provided therein.</p> <p>6. Workmen’s Compensation Act, § 12*—when omission in declaration, in action by employer against third person, is cured by verdict. In an action under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)] by an employer, a telephone company, against an electrical company, to whose negligence it is claimed the death of a telephone lineman, climbing a telephone pole carrying also defendant’s wires, was due, to recover the amount of the award paid the estate of the employee, even if it be necessary to allege the fact that defendant had elected to be bound by the act, such fact would be clearly implied or inferred, by force of the statute, from the averment that defendant at the time of the accident was an employer engaged in electrical work, and an omission so to do would be cured by the verdict.</p> <p>7. Workmen’s Compensation Act, § 18*—when shown that death of employee was not proximately caused by negligence of employer. The evidence was sufficient to sustain the finding, in an action by an employer, a telephone company, under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)], against an electrical company, to whose negligence it was claimed the death of a telephone lineman was due, to recover the amount of an award paid to the estate of the employee, that the death of deceased was not proximately caused by the negligence of the employer where, although no one saw the accident, the evidence tended to show that deceased was a careful man; that he was in the tree, through which the telephone and electric wires ran, repairing a telephone wire,1 that the insulation on one of the high-voltage wires of the electrical company had become defective and worn and that it was in such a condition as to be dangerous to the life of any one coming in contact with it, and both plaintiff and defendant used the same poles for their wires.</p> <p>8. Electricity—when duty lies upon telephone and electrical company to Iceep wires in condition to avoid injury to employees of other. Where a telephone company and an electrical company use the same poles for their wires and each knows that employees of the other will have occasion to repair the respective wires from time to time, a duty devolves upon each company to use reasonable care to keep its respective wires in such a reasonably safe condition as not to cause injury to the employees of the other.</p> <p>9. Workmen’s Compensation Act, § 12*—when evidence that insurance company paid Mils of doctor and hospital, and amount of award is properly excluded. In an action by an employer, under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)], against a third person, to whose negligence the death of an employee is claimed to have been due, to recover the amount of the award and medical and hospital expenses paid to the estate of the employee, it is proper to exclude evidence that an insurance company paid the bills of the doctor and hospital and the award by the Industrial Board, and that plaintiff was not damaged.</p> <p>10. Workmen’s Compensation Act, § 12*—when coroner's verdict is admissiMe. In an action by an employer, a telephone company, under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)], against an electrical company, to whose negligence in maintaining its wires carried on the same poles as plaintiff’s, the death of a telephone lineman by electrical shock was due, to recover the amount of the award paid to the estate of the employee, held that the coroner’s verdict was competent evidence.</p> <p>11. Workmen’s Compensation Act, § 12*—when order of Industrial Board allowing award is admissiMe in evidence. In an action by an employer under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)], against a third person, to whose negligence the death of plaintiff’s employee was claimed to be due, to recover the amount of an award paid to the estate of the employee, it was proper to admit in evidence the order of the Industrial Board allowing the award, since this was the best evidence of the amount so awarded.</p>

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

<p>'1. Assignments for benefit of creditors, § 29*—what is effect of National Bankruptcy Act. The statute in reference to voluntary assignments for the benefit of creditors was suspended by the National Bankruptcy Act of 1898, but a debtor may still make a common-law assignment.</p> <p>2. Assignments for benefit of creditors, § 36*—what is necessary element of. One of the necessary elements of a voluntary assignment for the benefit of creditors is the implication of a trust and the intervention of a trustee.</p> <p>3. Assignments fob benefit of cbeditobs, § 5*—when not voluntary. Conveyances directly to creditors and not upon trusts are not voluntary assignments for the benefit of creditors.</p> <p>4. Assignments fob benefit of cbeditobs, § 32*—when not Uniting as to person not party to agreement. An agreement for the assignment by a debtor of all his personal and real property, entered into between the debtor, certain creditors and a third party as trustee, whereby the debtor agrees to convey and assign unto the trustee all his property for the benefit of such creditors and all other creditors acceding thereto, is void as against an existing creditor who is not a party thereto.</p>

<p>1. Municipal cobpobations, § 143*—when widow of fireman not deprived of benefits of Pension Fund Act. The mere fact that a fireman’s pension fund created hy a city had not at the time of the death of a fireman reached the minimum amount of $25,000, required in a city of its size under section 4 of the Firemen's Pension Fund Act of 1887 (J. & A. ¶ 1891), before pensions could be paid, did not deprive his widow of the benefits of the act when the fund reached the prescribed amount</p> <p>2. Municipal corporations, § 143*—what was effect of Revision Act of 1915 upon rights of widow of fireman to pension under Act of 1887. The rights of a widow to the benefits of the Firemen’s Pension Fund Act of 1887 (J. & A. ¶ 1888 et seq.), and to a pension, upon the pension fund of the city reaching the minimum amount requisite before pensions could he paid, after death of her husband and after the Revision Act of 1915 [Callaghan’s 1916 St. Supp. ¶ 1904(1) et seq.), were not defeated by the Revision Act, since the sections in the latter act applicable to the rights of the widow are substantially the same as those contained in the Act of 1887.</p> <p>3. Statutes, § 142*—what is effect of revision. Where the law on a particular subject is revised and rewritten, only the provisions of the old law which are omitted from the revised act are repealed, and all provisions of the old law retained in the new act are regarded as having been continuously in force.</p>

<p>1. Municipal corporations, § 143*—when pension allowable to wife and children of deceased fireman. Under section 8 of the Firemen’s Pension Fund Act of 1887, as amended [Callaghan’s 1916 St. Supp. ¶ 1895], providing that if any member of a fire department in a city which has created a pension fund “shall, while in the service of such fire department, be killed, or die as the result of injuries received while in such service or of any disease contracted by reason of his occupation, or if any member of such fire department shall, while in said service, die from any cause while in said service, or during retirement, or after retirement, after twenty (20) years’ service as hereinafter provided, and shall leave a widow, minor child or minor children under sixteen years of age,” etc., certain sums shall be paid to them monthly from the pension fund, a pension is allowable when a fireman is killed or dies from injuries or sickness contracted by reason of his service, no matter how long he has been in service, and when he dies from any cause not necessarily attributable to his occupation, either while in said service or during retirement, if, at the time of his death, he has served 20 years.</p> <p>2. Municipal corporations, § 143*—when decision of board of trustees of pension fund that widow of fireman not entitled to pension sustained. The decision of the board of trustees of a firemen’s pension fund that the widow of a deceased fireman was not entitled to a pension will be sustained where the right of the widow to a pension depends upon the question of fact whether her husband died by reason of injuries or illness received or caused by the performance of his duties as fireman, and none of the evidence of the witnesses on such question was preserved in the record of the board.</p>

<p>1. Cobporations, § 329*—when may refuse to enter into contract. The registry in the books of a corporation, which is engaged in the private business of keeping records of pedigrees of imported horses and issuing certificates of such pedigrees on request, of a horse, is a matter of contract which the corporation can refuse, in its discretion, to enter into the same as an individual, and it may not be required by mandamus to enter into such a contract.</p> <p>2. Corporations, § 170*—when stockholder may not compel corporation to enter into contract. The fact that a partnership, engaged in the business of dealing in horses and other live stock, owned a share of stock in a corporation engaged in the private business of keeping records of pedigrees of imported horses and issuing certificates of such pedigrees, and, when a corporation was formed by the members of the partnership, they caused the share of stock to be ■ transferred to the latter corporation on the books of the former corporation, did not give such latter corporation any greater right to compel such former corporation by mandamus to enter into a contract with it than it would have had if it had not owned the share of stock.</p>

<p>1. Schools and school districts, § 175*—when residence in township other than that in which high school is situated shown. In an action by a school district to recover high school tuition for two minor children of persons claimed to be residents of another township, evidence held sufficient to sustain a finding that defendants were residents of the township other than that in which the high school was situated and that the children only temporarily stayed with their grandmother during the school year in a house owned by defendants in the town in which the high school was situated.</p> <p>2. Schools and school districts, § 48*—who may discharge duties of directors of schools for school districts. Boards of education of township high schools are empowered to discharge the duties of directors of schools for school districts.</p> <p>3. Schools and school districts, § 184*—when parents liable for tuition of children attending high school in another district. Under section 122 of the School Act (J. & A. ¶ 10143), providing that, where no high school is maintained, graduates of the eighth grade in any school' district shall, upon payment of tuition, be admitted to the high school of any district in the county in which such pupils reside, by and with the consent of the school board where such high school is located, and that “the tuition in case the parent or guardian is unable to pay shall be paid by the school board of the district in which such pupils reside, from the funds of the district,” parents are liable for the tuition of their children where they are able to pay.</p> <p>4. Schools and school districts, § 184*—inapplicability of section 121 of School Act to transfer of pupils from common school to high school in another district. Section 121 of the School Act (J. & A. ¶ 10142), relating to the transfer of pupils from one district to another upon the written consent of a majority of the directors of each district, has reference only to the attendance of children in a common school district in a district other than that of their residence, by and with the consent of the directors of the districts, and provides for payment of tuition out of the funds of the district of their residence, and applies only to common schools and not to high schools.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>Error to the County Court of Franklin county; the Hon. Nealy I. Glenn, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>1. Mines and minerals, § 153*—when evidence tending to show dangerous condition of roof of mine prior to injury to miner is admissible. In an action to recover for the death of a miner, due to the fall of slate from the roof of a room in a mine, in which it was charged that there was an unsafe condition in the roof of the room where deceased was injured and that there was a wilful failure to mark the same by the mine examiner, evidence tending to show the dangerous condition of the roof of the room some days prior to the day of the injury was admissible.</p> <p>2. Mines and minerals, § 181*—when question whether failure of mine examiner to mark dangerous place in mine is proximate cause of injury to miner is for court. It was a question for the court as to whether the failure of the mine examiner to mark a place in the roof of the mine as dangerous was the proximate cause of the death of a miner, due to slate falling from the roof, where the case was tried before the court without a jury and the evidence tended to show that the slate in the roof over the coal was more or less brittle and that the only safe way of protecting that kind of a roof is by.propping or taking down the slate, and that there is no way to determine when such slate will fall, even though it appears to be solid when inspected.</p> <p>3. Death, § 67*—when verdict for death of coal miner not excessive. A verdict for $6,000 for the death of a coal miner was not excessive, where deceased was 29 years of age at the time of his death, had been earning $5 per day 4 days in the week, was an able-bodied man and lived with and supported his family.</p> <p>4. Workmen’s Compensation Act, § 2*—when due posting by employer of election not to be bound by is shown. Evidence held sufficient to show that notice that the employer had elected not to be bound by the Workmen’s Compensation' Act had been duly posted, as required by law.</p>

<p>1. Executors and administrators, § 498*—when error to enter final judgment against administrator. It is error, in garnishment proceedings, to enter a judgment in the nature of a final judgment against an administrator in favor of the judgment creditor, since final judgment cannot he entered against an administrator until there has been an order of distribution, the only proper judgment being a conditional one.</p> <p>2. Garnishment, § 105*—when judgment is erroneous. A judgment in garnishment proceedings against an administrator is erroneous where it runs directly in favor of the judgment creditor against the administrator, instead of being rendered in favor of the judgment debtor, for the use of the judgment creditor.</p> <p>3. Workmen’s Compensation Act—when funds derived from award for death of employee not subject to garnishment in hands of administrator. Under section 21 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. ¶ 5475(21)], providing that no payment, claim or award under the act shall he assignable or be subject to any lien, attachment -or garnishment, or be held liable in any way for any lien, debt, penalty or damages, funds derived from an award for the death of an employee, which award is made directly to the widow as the only surviving dependent, are not subject to garnishment in the hands of the administrator of the estate of deceased.</p>

<p>1. Mortgages, § 586*—when agreement between vendor and purchaser that land retained by vendor be first sold at foreclosure sale shown. Evidence held sufficient to show an agreement between the seller of land and purchasers whereby a tract retained by the seller, which, with the land sold, was covered by the same mortgage, should be first subjected to sale in satisfaction of the mortgage, in the event of foreclosure, before resorting to the land sold.</p> <p>2. Evidence, § 333*—when true consideration for sale of land may be shown. The true consideration for a conveyance of real estate may be shown, even though the oral testimony may show a different consideration from that expressed in the deed.</p> <p>3. Mortgages, § 587*—when doctrine of marshaling of assets should be applied. The doctrine of marshaling of assets should be applied where the first mortgage covers three tracts of realty and the second mortgage covers only two of the tracts, and the holder of the first mortgage should be required to first exhaust the security which he holds that the second mortgagee has no lien upon.</p>

<p>1. Drainage, $ 112*—what damages for overflow of land not contemplated, at time of adoption of drainage plans. Damages for overflow of land' near a river, due to the construction of levees up stream which shut off the natural overflow of flood water in another direction and the failure to complete a direct channel three-quarters of a mile long to the outlet, which would have taken care of the flood water, if completed, were not contemplated at the time the drainage district was organized and the drainage plans were adopted.</p> <p>2. Drainage, § 50*—when commissioners act in ministerial capacity rendering district liable for their acts. Drainage commissioners act in a judicial or quasi judicial character in the adoption of plans and specifications for drainage work, hut when undertaking to put the plans into effect, they are acting in a ministerial capacity, and the drainage district is liable for overflow of land by flood water due to their acts.</p> <p>3. Drainage, §112*—when district estopped to show why outlet not completed. A drainage district is not in position to offer as an excuse as to why an outlet, consisting of a direct channel from a small river to a large river, as a part of a drainage system, was not completed, that it still contemplates the construction of such outlet, where plans and specifications were adopted 3 years after the district was organized and 2 years later an application to the court for an additional assessment to complete the outlet was refused, and the flood, for which damages were sought, did not occur until one year later.</p> <p>4. Drainage, § 112*—when evidence supports verdict for damages for overflow. Evidence held sufficient to support a verdict for $1,665.45 as damages for overflow of land, due to the failure of a drainage district to complete its work of construction of an outlet for flood waters.</p> <p>5. Appeal and error, § 812*—when objections to argument not sufficiently preserved for review. Objections made to remarks of counsel in the argument to the jury are not sufficiently preserved for review where they do not appear in the bill of exceptions, except by affidavit.</p> <p>6. Appeal and ebbob, § 1512*—when remarles by court are harmless error. Remarks made by the court in commenting on the evidence were not reversible error where no harm could have resulted to defendant therefrom, and the court stated to the jury that it was not attempting to influence the jury by anything that had been said.</p> <p>7. Municipal cobpobations, § 1236*—when execution does not lie. The ordering of an execution against a municipal corporation is error.</p>

<p>1. Insurance, $ 858*—when jurisdiction obtained in action on benefit policy. Under section 7 of the Practice Act (J. & A. ¶ 8544), courts of record of the county of plaintiff’s residence have jurisdiction of an action on a benefit insurance policy, and process may issue to the county in which the insurance company has its head office lor service; but it does not follow that other courts are deprived of jurisdiction to hear and determine such a suit.</p> <p>2. Insurance, § 858*—when jurisdiction of corporation obtained by City Court. Section 8 of the Practice Act (J. & A. ¶ 8545), providing that an incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought, and if he shall not be found in the county, then by leaving a copy of the process with any agent of the company found in the county, is broad and inclusive and is sufficient to give a City Court jurisdiction of an insurance corporation on which service within' its territorial limits has been obtained in the manner provided by statute, even though neither plaintiff nor defendant are residents of such county.</p> <p>3. Insurance, § 904*—when falsity of answers as to health in medical examination of insured shown. Evidence held sufficient to show that the statements made by insured in his medical examination as to his good health were untrue, that he had coughed for some considerable time prior to the issuance of the certificate, and that he had had hemorrhages on several occasions prior thereto.</p> <p>4. Insurance, § 753*—what are warranties vitiating policy where untrue. Statements made by an insured in his medical examination that he had been in good health, and warranted in his application, which was a part of the benefit certificate, to be true, are warranties, and, if not true, vitiate the policy.</p>

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

<p>1. Malicious prosecution, § 67*—how bad reputation of plaintiff may not be shown. In an action for malicious prosecution, while evidence showing plaintiff’s general reputation in the community at the time of the act complained of is competent, his had reputation cannot be shown by proof of specific acts.</p> <p>2. Malicious prosecution, § 82*—when forgery of signature to note is question for jury. In an action for malicious prosecution growing out of plaintiff’s arrest and prosecution on the charge of having forged defendant’s- signature to a note, where the evidence is conflicting as to whether or not the signature was defendant’s, it is for the jury to determine whether or not defendant signed it.</p> <p>3. Malicious prosecution, § 66*—when copy of order of nolle prosequi is admissible to show termination of prosecution. A copy of the order of nolle prosequi entered in a case on which an action for malicious prosecution is based is competent to show plaintiff’s discharge for the purpose of showing the termination of the case, and especially is such a copy admissible when not entered in the case upon which the malicious prosecution action is based but in one of a series of transactions which tend to show that malice actuated the defendant.</p> <p>4. Malicious prosecution, § 65*—what is proper to be considered on question of malice. In an action for malicious prosecution in which it appears that a series of prosecutions were instituted, the fact that after a nolle prosequi was entered in one of the series defendant did not cease to prosecute plaintiff is proper to be considered by the jury on the question of defendant’s malice.</p> <p>5. Malicious prosecution, § 13*—what is effect of following advice of reputable attorney in prosecution of action. In an action for malicious prosecution based on a prosecution of plaintiff on the charge of forging defendant’s signature to a note, the fact that defendant consulted and followed the advice of a reputable attorney is not sufficient to establish that he acted in good faith without malice and with probable cause.</p> <p>6. Malicious prosecution, § 13*—when following advice of reputable attorney is no defense. In an action for malicious prosecution, the fact that defendant followed the advice of a reputable attorney does not relieve him from liability where he misrepresented the facts to his attorney.</p> <p>7. Malicious prosecution, § 21*—u>hat essential to sustain action for. Malice and lack of probable cause are essential to sustain an action for malicious prosecution.</p> <p>8. Malicious prosecution, § 84*—malice as question of fact. In an action for malicious prosecution, malice is a question of fact.</p> <p>9. Malicious prosecution, § 83*—probable cause as. question for jury. In an action for malicious prosecution, whether there was probable cause is for the jury to determine and from all of the evidence, not from a part of it.</p> <p>10. Malicious prosecution, § 74*—when malice and lack of probable cause shoum. In an action for malicious prosecution, based on prosecutions relative to a note held by plaintiff which he alleged was executed by defendant, where it appears that the latter failed to secure possession of the note in replevin proceedings which he brought for that purpose, failed to have plaintiff indicted in his own county, had him enticed to another county, induced him to offer the- note for sale there, caused him to be imprisoned in jail three times and suffered him to be indicted three times in such county after being discharged on preliminary hearing in his own county, the grand jury failing to return an indictment, and after being discharged after a preliminary hearing in a Municipal Court of such other county, the jury are warranted in finding that there were malice and lack of probable cause on defendant’s part.</p> <p>11. Malicious prosecution, § 98*—when verdict not excessive. In an action for malicious prosecution, a verdict for $16,000 is not excessive, where it appears that plaintiff was called upon to defend a civil suit, twice subjected to preliminary hearings, once in a-foreign county, three times indicted in a foreign county, required to get ready to go to trial on three indictments at two different terms of a court in a foreign county, tried on one of those indictments and found not guilty by the jury, three times imprisoned in jail, twice in a foreign county, once under extremely disgusting and revolting conditions, enticed out of his county and made to go out of his jurisdiction to defend himself in all but two of his numerous arrests and trials, that he had to expend $2,600 in defending himself, and that plaintiff, as shown by the proof, is wealthy.</p> <p>12. Malicious prosecution, § 58*—what proof required in action for. No presumption can be made to uphold a verdict for plaintiff in an action of malicious prosecution, but all the facts necessary to make out a case must be proved by a preponderance of the evidence.</p>

<p>Appeal from the County Court of Saline county; the Hon. C. D. Stilwell, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>1. Set-off and becoupment, § 10*—when unliquidated damages not subject of set-off. Unliquidated damages not growing out of the contract sued on and in no wise connected therewith cannot be made the subject of a set-off.</p> <p>2. Damages, § 81*—what are unliquidated. Unliquidated damages are such as rest in opinion only, and must be ascertained by a jury, their verdict being regulated by the peculiar circumstances of each particular case. They are damages which cannot be ascertained by computation or calculation, as, for instance, damages for not using a farm in a workmanlike manner; for carelessly upsetting a stage, by which a bone is broken, and other cases of like character, where the amount to be settled rests in the discretion, judgment or opinion of the jury.</p> <p>3. Landlord and tenant, § 376*—what may be set-off on distress for rent. On distress for rent, defendant may plead as set-off demands for work and labor performed for and material furnished to plaintiff, even though such services were not limited to the leased premises.</p> <p>4. Courts, § 100*—when County Court not ousted of jurisdiction by amount of judgment. The County Court is not ousted of jurisdiction by the fact that under an improper direction of the court, that an item not claimed be included, the judgment would be for an amount in excess of the court’s jurisdiction, where the judgment as entered is within the jurisdictional amount.</p> <p>5. Landlord and tenant, § 387*—when judgment on plea of set-off on distress for rent is erroneous. Where, on distress for rent, defendant strikes from his plea of set-off the value of goods levied upon under the distress warrant, it is not proper for the court to include in the judgment for defendant the proceeds of the sale of such goods.</p> <p>6. Appeal and erbob, § 1766*—when judgment reformed by striking out as surplusage illegal part. The fact that the trial court, on distress for rent, improperly directed that there be paid to defendant, who recovered on a plea of set-off, the proceeds of the sale of property levied on under the warrant, will not defeat so much of the judgment as was entered in legal form, but the Appellate Court will reform the judgment by striking out as surplusage such illegal part.</p> <p>7. Appeal and bbbob, § 1659*—what error cured by remittitur. Error of the jury in overlooking plaintiff’s claim for rent in rendering judgment for defendant on his plea of set-off is cured by a remittitur by defendant of the amount agreed to be the amount of the rent.</p> <p>8. Fbincipal and agent, § 111*—when employment by authorized agents and receipt of benefits of work shown. On distress for rent to which a demand for work and labor was pleaded as set-off, evidence held to show that defendant was employed by authorized agents of plaintiff, and that the plaintiff received the benefit of the services.</p> <p>9. Instructions, § 30*—when oral direction to jury is not error. The statutory requirement that instructions to the jury shall be in writing does not prohibit the trial court from giving the jury an oral direction to disregard certain items which defendant has stricken from his plea of set-off and to pay no attention to testimony in regard to such items.</p>

<p>1. Contracts, § 171*—construction as entirety. A building contract must be considered as an entirety.</p> <p>2. Mechanics’ liens, § 20*—what is necessary to support lien in favor of contractor. Every element of the contractor’s agreement must be lienable, to support a mechanic’s lien.</p> <p>3. Mechanics’ liens, § 196*—when Shown contract was for material and labor. On a bill to foreclose a mechanic’s lien, evidence held to show that the contract was for material and labor.</p> <p>4. Mechanics’ liens, § 20*—what does not affect right to lien of contractor for work and material. A collateral agreement on the part of the contractor to assist the owner in getting a loan to be used in paying for the contractor’s work and material does not affect the latter’s right to a lien for such work and material.</p> <p>5. Mechanics’ liens, § 149*—when notice to commence suit does not comply with Mechanics' Liens Act so as to bar suit. Notice given by one who, though in possession of the premises, claims no interest therein, but is merely a tenant by sufferance, or by the attorney of one in whose name, without her knowledge or consent, title to the property has been placed, though it is, in fact, owned by another, is not a sufficient compliance with the requirements of Rev. St. ch. 82, sec. 34, par. 48 (J. & A. ¶ 7172), to bar a suit to foreclose a mechanic’s lien.</p> <p>6. " Mechanics’ liens, § 83*—what does not affect contractor’s right to lien. That a contractor filing notice of claim under the Mechanics’ Liens Act (J. & A. ¶ 7139 et seq.), and the one under the contract with whom the lien was claimed were strangers to the record title does not affect the contractor’s right to a lien, where the real parties in interest had actual notice of his claim.</p> <p>7. Mechanics’ liens, $ 85*—what is purpose of statute requiring statement by contractor to owner of claims of persons furnishing material or labor. The purpose of the provision in Rev. St. ch. 82, sec. 5, par. 19 (J. & A. ¶ 7143), requiring a statement to the owner by one claiming a mechanic’s lien, is to protect the owner in payments to contractors against claims of persons furnishing material or labor, and it is not intended to make the giving of the statement a prerequisite to a suit to foreclose a mechanic’s lien in which the rights of all persons interested can be protected.</p> <p>8. Appeal and ebbor, § 1570*—when decree foreclosing mechanics lien is not reversibly erroneous. That the decree foreclosing a mechanic’s lien and a mortgage lien directs that the holder of the paper title pay such liens is not ground for reversal, where the decree directs that in default of such payment the property be sold and the proceeds applied to the liens, and contains no provision for a deficiency decree.</p>

<p>1. Mines and minerals, § 108*—when duty of mine examiner to mark place as dangerous. Where dangerous conditions exist in the face of a mine room when it is examined, it is the mine examiner’s duty to mark it as dangerous, even though he thinks there is no danger from such conditions.</p> <p>2. Mines and minerals, § 108*—when mine owner liable for injuries to miner because of failure of mine examiner to mark roof as dangerous. In an action by a mine employee to recover for injuries received by a fall of slate from the roof in a room which had not been marked as dangerous by the examiner, though he knew the conditions, the employer is not relieved from liability by the fact that plaintiff was not only employed as a miner but to remove slate from the roof, and its liability is the same without regard to which capacity plaintiff was working in when injured.</p> <p>3. Mines and minerals, § 82*—when employee may be sent to dangerous place to make it safe. When a dangerous place in a mine has been examined and marked as required by statute, the employer may send an employee there to work and make the dangerous place safe without incurring further liability.</p> <p>4. Mines and minerals, § 108*—who entitled to benefit of statute as to marking dangerous places. The duty of the employer to comply with the statutory requirements to examine his mine, mark the dangerous places and place danger signals is. owed to those employed and generally instructed to make the mine safe as well as to other employees.</p> <p>5. Mines and minerals, § 176*—when shown that dangerous condition of roof had not been marked by mine examiner. In an action by a mine employee to recover for injuries received by a fall of slate from the mine roof, evidence held to support a finding that the dangerous condition of the place had not been marked by the examiner.</p> <p>6. Mines and minerals, § 182*—what are questions for jury in action for personal injuries sustained by miner. In an action by a mine employee to recover for injuries received by a fall of slate, questions as to whether a dangerous condition existed at the place and whether plaintiff was injured thereby are for the jury.</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>Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding. Heard in this court at the March term, 1918.</p>

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

<p>1. Torrens Act, § 2*—when registered trust deed takes priority over known, prior unregistered land contract. Under the Torrens Act (J. & A. ¶ 2284 et seq.) a registered trust deed from the registered owner of the premises gives the grantee a lien superior to, that of one who is in possession of the premises under a prior unregistered contract of purchase on which the purchaser has made payments, even though such grantee knew of the contract.</p> <p>2. Statutes, § 216*—what considered in construing statutes adopted from another State. Decisions of the courts of another jurisdiction construing a statute from which a domestic statute has been adopted are persuasive with the domestic courts in construing the domestic statute.</p> <p>3. Torrens Act, § 2*—when transferee of registered owner not affected with notice of unregistered lien or interest. Under section 42 of the Torrens Act (J. & A. ¶ 2325), except in case of fraud, a transferee of the registered owner is not affected with actual or constructive notice of any unregistered lien, claim or interest, and mere knowledge of such claim or interest cannot he considered as fraud.</p> <p>4. Tobbens Act, § 2*—what does not affect priority of registered trust deed over prior unregistered land contract. That the Torrens Act (J. & A. ¶ 2284 et seq.) contains no express provision indicating that possessory rights shall be forfeited by failure to file written notice of such rights with the registrar does not render the lien of a registered trust deed inferior to the lien of one in possession of the premises under a prior unregistered contract of sale.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in this court at the March term, 1918.</p>

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

<p>1. Commerce, § 4*—when shown that train engaged in interstate. In an action under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], that the train causing the injury contained shipments originating in one State and destined to another and was engaged in interstate commerce, held established by competent evidence.</p> <p>2. Master and servant, § 689*—when verdict for plaintiff sustained by evidence in action under Federal Employers' Liability Act. In an action under the Federal Employers’ Liability Act, [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], where the negligence relied upon to sustain a recovery is defendant’s failure to exercise reasonable care to maintain its track and roadbed in a reasonably safe condition and state of repair, and in operating its locomotive at a high and dangerous rate of speed, the evidence, though conflicting, held sufficient to sustain a verdict for plaintiff.</p> <p>Barnes, J., dissenting.</p> <p>3. Master and servant, § 454*—what is insufficient to charge locomotive fireman with knowledge of condition of ties. In an action by a locomotive fireman brought under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], to recover for personal injuries alleged to have been caused by defendant’s negligence in maintaining its track and roadbed and in operating its train, plaintiff is not chargeable with knowledge of the condition of the ties because he frequently rode over that part of the track in discharging his duties and occasionally walked along it.</p> <p>4. Appeal and error, § 1523*—when mistake in date in instruction not ground for reversal. A mistake in giving a date in a long instruction is not ground for reversal where, in reading the instruction as a whole, the date intended is apparent.</p> <p>5. Appeal and error, § 1523*—when misstatement of name of city in instruction is harmless error. A harmless misstatement in giving the name of a city in an instruction is not ground for reversal where, by reason of the context, the jury could not have been misled.</p> <p>6. Appeal and error, § 1241*—when instruction may not be complained of. A defendant cannot complain of an instruction given at plaintiff’s request where the same instruction was given at defendant’s request.</p> <p>7. Master and servant, § 98*—when instruction on damages in action under Federal Employers’ Liability Act is not reversibly erroneous. In an action under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], that an instruction which deals merely with the question of damages and does not purport to outline all of the elements necessary to a recovery, does not embody such elements of recovery, among them the doctrine of assumed risk, is not ground for reversal, especially where it tells the jury that if they find from a preponderance of the evidence and the instructions of the court, etc., then they may assess damages as proven by the evidence.</p> <p>8. Damages, § 191*—when question as to causal connection between first and second injuries is for jury. In an action under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], for injuries to plaintiff’s leg, where it appears that about 10 months after the injury, when plaintiff had discarded his crutches for a cane in accordance with his doctor’s advice, he injured his leg again by placing his weight upon it to recover his balance which he had lost in lifting his child, the question as to whether there was a causal connection between the first and second injuries is for the jury.</p> <p>9. Damages, § 120*—when not excessive. In an action under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], where it appears that plaintiff’s left leg was crushed, with the result that it is shorter than the right, his entire right side was scalded, that he was unable to be about for many months and suffered intense pain, and his injuries are permanent and his earning capacity greatly impaired, a verdict for $18,725.51 is not excessive.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kiokham Scanlan, 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. Lockwood Honor®, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>1. Attorney and client, § 105*—when no recovery may be had for services in effecting compromise settlement. Where an attorney retained by the widow and heirs of a testator to set aside the will or effect a settlement enters, without their knowledge, into an agreement with the attorney of one of the executors, whereby he receives 80 per cent of the fees allowed such attorney, he cannot recover for his services in effecting a compromise settlement.</p> <p>2. Attorney and client, § 105*—what is effect of acquiescence in misconduct of attorney on liability for services. In an action by an attorney to recover for professional services rendered a client, where the defense is the attorney’s professional misconduct, it cannot be set up by the plaintiff that defendant had knowledge of and acquiesced in the misconduct.</p>

<p>1. Wills, § 262*—when words “heirs at law’’ construed to include husband of testator. Where It does not otherwise clearly appear from the context of the will, the words “heirs at law” will be construed to designate the same persons as in case of intestacy, and to include a husband, and therefore a husband may contest, on the ground of her mental incapacity, a will by his wife disposing of property given her under a will which provided that in the event she failed to dispose of it, it should pass to her heirs at law.</p> <p>. 2. Equity, § 183*—when plea not sustained. A plea must stand or fall upon its own merits and cannot be sustained by showing the bill to he defective.</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. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the March term,T917. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Executors and administrators, § 612a*—right of administrator de son tort to sue. An administrator de son tort may institute an action at law.</p> <p>2. Executors and administrators—when acts of administrator de son tort validated. Letters of administration granted to an administrator de son tort usually relate back to the death and validate acts of the administrator prior to their issuance.</p> <p>3. Executors and administrators—what acts of administrator de son tort validated by letters of administration. Acts done by an administrator de son tort which are of benefit to the estate and prevent the running of the statute of limitations are validated by the subsequent issuance to him of letters of administration.</p> <p>4. Executors and administrators, § 23*—letters of administration as evidence of administrators right. Letters of administration are not the foundation of the administrator’s right, but are merely evidence of that right.</p> <p>5. Death, § 30*—what is nature of statutory requirement for bringing action for within one year. The time fixed for bringing an action for personal injuries under Hurd’s Rev. St. ch. 70, secs. 1, 2 (J. & A. ¶¶ 6184, 6185), is not a statute of limitations, but is a condition of the liability, and operates as a limitation of the liability itself and not of the remedy alone.</p> <p>6. Death, § 30*—what does not bar running of statute relating to time of commencement of action for. Under the Personal Injuries Act (Hurd’s Rev. St. ch. 70, secs. 1, 2, J. & A. ¶¶ 6184, 6185), which creates a right of action unknown to the common law and provides that suit must be brought “by and in the names of the personal representatives” within a period of one year, suit must be brought by such representative within the time fixed, and the institution of suit by an administrator de son tort within that time is not sufficient to bar the running of the statute, even though letters of administration were issued to him after the year had expired.</p> <p>7. Pleading, § 229*—when judgment for defendant on pleadings is proper. Where the demurrers to replications to pleas raise questions going to plaintiffs right to maintain the action, and it is made to appear that although there may be other issues oí fact, upon the whole case, plaintiff has no cause of action, judgment may be entered for defendant on the pleadings without a trial upon the issues.</p>

<p>Master and servant, § 838*—when shown that driver is employee of ice company so as to render master liable for his negligence. In an action against an ice company for injuries alleged to have been caused by negligence in the operation of its wagon, where the defense is that the possession and management of the wagon were not in defendant hut in a third person, and it appears that defendant allowed such third person’s ice business to he conducted in its name as aforesaid, advertising his office as its office, furnishing for use in his retail business stationery and bills bearing its own name, permitting collections from his customers to be made in its name and the wagons to hear its name and the driver to act as its servant to such an extent that he even believed he was, and knowing and permitting all this for the benefits that would accrue to it from such advertising, the jury were justified in finding that the driver was its servant, and that it cannot escape liability for his conceded negligence.</p>

<p>1. Infants, § 23*—u>hat contract hy minor may he ratified after reaching maturity. A contract by a minor for the purchase of realty is voidable and not void, and he may ratify it by his acts and conduct after becoming of age.</p> <p>2. Infants, § 23*—what constitutes ratification of contract for purchase of realty upon reaching maturity. One who, after becoming of age, makes two monthly payments on account of the purchase price of realty under a contract entered into by him in infancy, records the contract, asks for an extension of time to make payments, and requests the vendor to obtain a cash purchaser for the property, will be held to have ratified or affirmed the contract.</p> <p>3. Evidence, § 32*—what is matter of law presumed to he known. The right to disaffirm a contract made in infancy is a matter of law of which all men are conclusively presumed to have knowledge.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, 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 Circuit Court of Cook county; the Hon.'Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>1. Roads and bridges, § 231*—when drivers approaching intersection may not each assume other will give way to avoid collision. Where two persons are driving on lines that visibly intersect, the general obligation of ordinary care becomes for each a definite duty, and if, as they approach, their contiguity and mutual movements suggest a probable or even possible collision, neither is entitled to act on the assumption that the other will give way.</p> <p>2. Street railroads, § 131*—when evidence does not support verdict for plaintiff for injury due to collision of street car loith vehicle. Where the weight of the evidence shows that plaintiff, while driving a vehicle in a southerly direction upon a street, suddenly swerved his horse to the east directly in the path of an approaching northbound street car, which was then so close that the head of the horse came in contact with the car, a verdict for plaintiff will be set aside.</p>

<p>1. Insurance—what constitutes accidental death. One who comes to his death by drowning suffers death by external, violent and accidental means.</p> <p>2. Insurance, § 601*—what constitutes prima facie case of accidental death. Proof that a man, a few minutes after being seen apparently in good health, was found under water, dead, is sufficient to create a prima facie case of accidental death, within the terms of an accident policy.</p> <p>3. Evidence, § 478*—when doubtful conclusion arises from inferences upon inferences. Although inferences from inferences may, under certain circumstances, be admissible, the more remote the inference the more enfeebled its probative value, and doubt as to any one of them renders the conclusion doubtful.</p> <p>4. Insurance, § 686*—when death by accidental drowning is question for jury. Evidence that insured was found dead in a bathtub after having been seen in apparent health a few minutes before, coupled with proof of some of the external indicia of death by drowning, held to warrant submission to the jury of the question as to whether insured’s death was caused by accidental drowning, notwithstanding expert testimony that death was due to disease.</p> <p>5. Insurance, § 231*—when warranties and representations refer only to original accident policy. Warranties arid representations in connection with an accident policy, issued for annual periods, held to refer to the original policy and not to renewals.</p> <p>6. Insurance—when drowning of diseased person is sole cause of death. Where insured was found dead in a bathtub, the fact that he may have been diseased and that his abnormal condition may have led to his falling into the tub and being drowned would not prevent a recovery on the policy, since if he came to his death by drowning, legally that was the sole cause of his death.</p>

<p>1. Municipal corporations, § 941*—when settling of building shown to be due to construction of tunnel under public alley. In an action for damage to a building alleged to have been caused by settling, due to the construction of a tunnel under a public alley along one side of such building, evidence held to show that the settling of the building was caused by the construction of the tunnel.</p> <p>2. Municipal corporations, § 941*—when liable to abutting owners for damages due to construction of tunnel under public alley. Where a tunnel is constructed under a public alley for a public use, pursuant to authority granted by the municipality and under its supervision and inspection, and such construction causes injury to abutting owners, the city will be liable for the damages sustained.</p> <p>3. Mortgages—what are rights of assignee of master’s certificate of sale as to recovery for injury to leasehold. The assignee of the master’s certificate of sale on foreclosure under a trust deed on a leasehold interest has such an interest in the leasehold as to entitle him to recover for damage to the property caused by the negligent construction of a tunnel in an alley alongside the premises, although the damage was inflicted prior to the receipt of the master’s deed.</p> <p>4. Evidence, § 134*—when sufficient foundation laid for admission of certified copies of deeds and leases to show ownership. Certified copies of deeds and leases introduced to prove ownership, held not erroneously admitted on testimony of the plaintiff and others that the originals were not in his possession, power or control, and that none of them had been intentionally destroyed or disposed of by him, although a more accurate compliance with Rev. St. ch. 30, sec. 36 (J. & A. ¶ 2268), would require testimony that to the best of his knowledge the originals had not been intentionally destroyed or in any manner disposed of by him or by anybody else.</p> <p>5. Evidence, § 88*—when admissible as to effect on buildings of construction at other places of tunnels in alleys. Where an alleged cause, such as the construction of a tunnel in an alley causing the settling of an abutting building, has operated elsewhere, under similar conditions, the results are- admissible in evidence, and the circumstances in the instances compared need not be precisely the same as those involved in the case in which such evidence is offered, but it is sufficient if they correspond in essential respects.</p> <p>6. Trial, § 46*—what does not constitute expression of opinion on answer as evidence. Comments by the court, in overruling motions to strike, that “The answer amounts to an answer to the question,” and that “It is, in effect, an answer, as I get it,” do not constitute an expression of opinion by the court as to the truth of the answer or its weight or value as evidence, or as to any fact in issue.</p> <p>7. Trial, § 46*—what latitude allowed trial court in giving reasons for rulings on evidence. While remarks of the trial court, made to the jury and having the force of an instruction, or made in the presence and within the hearing of the jury, and expressing an opinion as to the value of the evidence or in relation to some facts in evidence or at issue, may be ground for reversal, the trial court may properly give his reason for rulings upon evidence, and he should be accorded reasonable latitude in so doing.</p> <p>8. Municipal corporations, § 941*—when instruction on right not to have property taken for public use without just compensation is proper. In an action against a city for damage to a building abutting on an alley, caused by the construction of a tunnel in the alley, for a public purpose, pursuant to authority granted by the city and under its supervision and inspection, an instruction on the constitutional protection of the owner of property from being damaged for a public use without just compensation is proper.</p> <p>9. Municipal corporations, § 942*—when instruction not erroneous because ignoring question of due care by abutting owner of damaged building. An instruction upon the liability of a city for damage to a building abutting on an alley, caused by the construction of a tunnel in the alley for a public use, pursuant to authority granted by the city and under its supervision and inspection, is not erroneous because it ignored the question of due care on plaintiff’s part, where no issue of contributory negligence was presented in the trial court.</p> <p>10. Appeal and error, § 1236*—what inconsistent position may ot be taken on appeal. Where, in an action against a city for damage to a building caused by the construction of a tunnel in an abutting alley, defendant tried the case upon the theory that the construction of the tunnel had nothing whatever to do with the damage to the building, it cannot on appeal take the inconsistent position that the judgment should be reversed for failure of the court to submit the question as to whether plaintiff, in the exercise of due care, could not have prevented the damage.</p> <p>11. Adjoining owners, § 1*—when convmon-Xaw rule as to lateral support of building inapplicable. The common-law rule, that while an owner must support the soil of an adjoining owner in its natural state he is not bound to support buildings thereon, has no application under the Constitution of 1870 to operations conducted in a public street, under the authority, control and inspection of the city, causing damage to a building by the removal of lateral support.</p> <p>12. Municipal corporations, § 942*—when instruction on contributory negligence of abutting owner constructing foundations of building in alley properly refused. In an action against a city for damage to a building caused by the removal of lateral support in the construction of a tunnel in an abutting alley, an instruction that the owner of the building had no right to locate and maintain its foundation in the alley, and if the damage would not have been caused except for that, such owner was guilty of contributory negligence barring recovery, was properly refused where there was no evidence that the city had not consented to the location of the foundations in the alley, but on the contrary indicated a license by the city.</p> <p>13. Release, § 22*—when city not released from, liability for damage to building by removal of lateral support in alley. A covenant not to sue executed on settlement with the receivers of a contractor who constructed a tunnel in an alley causing damage to plaintiff’s building by the removal of lateral support was not a release or accord and satisfaction as to the city authorizing and supervising the construction of the tunnel, the covenant expressly reserving all rights against the city.</p> <p>14. Accord and satisfaction, § 8*—what not competent evidence of as to another joint tort-feasor. The master’s report and the opinion of counsel representing the receivers in receivership proceedings involving the settlement of a claim against the receivers for the negligence of a joint tort-feasor and the execution to the receivers of a covenant not to sue are incompetent upon the question as to whether the transaction constituted an accord and satisfaction as to another joint tort-feasor.</p> <p>15. Release, § 21*—when release of joint tort-feasor preventing action over does not release cojoint tort-feasor. Where pending the settlement of a claim against the receivers of a contractor whose negligence was alleged to have caused damage to plaintiff’s building by the removal of lateral support in the construction of a tunnel in an abutting alley, with the authority of the city and under its supervision, the court set aside a fund of $250,000 to protect the claimant and upon settlement with the receivers for the sum of $50,000 and the execution by claimant of a covenant not to sue, reserving all rights against the city, released the balance of the fund and discharged the receivers, the city could not contend that the settlement should be construed as a release as to it, as the release of the fund and the discharge of the receivers prevented an action over by it, since the acts complained of were not acts of the plaintiff but of the court.</p>

<p>1. Corporations, § 493*—when, return of service of process upon vice president is prima facie sufficient. A return of service of process upon the vice president of a corporation, in the alleged absence of the president, which recited service of the “writ on the within named North American Life Insurance Company of Chicago, a corporation, by delivering a copy thereof to Thomas M. Knox, vice president and agent of said corporation, this 10th day of January, 1916, the president of said corporation not found in my county,” was prima facie sufficient, but its verity may be challenged.</p> <p>2. Process, § 82*—how verity of return of service of process upon officer may he challenged before judgment. The verity of a return of service of process upon an officer of a corporation, in the alleged absence of the president, may be challenged before judgment by plea in abatement.</p> <p>3. Judgment, § 273*—how verity of return of service of process upon officer of corporation may he challenged after judgment and term. The verity of the return of service of process upon an officer of a corporation, in the alleged absence of the president, may be challenged after judgment and after the expiration of the judgment term, by filing a motion in writing in the nature of a writ of error coram nohis, under section 89 of the Practice Act (J. & A. ¶ 8626), supported by proper and sufficient affidavits or other proof, provided the point thus attempted to be raised has not been raised.</p> <p>4. Judgment, § 274*—when affidavits contradicting service of process are insufficient. After judgment by default and the passing of the judgment term, service of process cannot be successfully challenged when the affidavits supporting a motion in the nature of a writ of error coram nohis seek to controvert some fact involved in the officer’s return “upon information and belief.”</p> <p>5. Corporations, § 487*—when service of process on vice president is sufficient. Service of process upon the vice president of a corporation, in the absence of the president, is valid where an officer calls at the office of the corporation during one of the president’s “temporary absences,” and, upon making inquiry for the president and being, advised that he is not in, asks to see the vice president or some other official, and, upon being directed to the vice president, delivers a copy of the summons to him.</p> <p>6. Judgment, § 274*—When not shown that failure of corporation to interpose defense was caused by accident, mistake or excusable negligence. On a motion in the nature of writ of error coram nobis, made under section 89 of the Practice Act (J. & A. ¶ 8626), by which an insurance corporation sought to quash a summons served on its vice president and vacate an order of default after the entry of judgment and expiration of the term, evidence held insufficient to show that the failure of defendant to interpose a defense in the case was caused by accident, mistake or excusable negligence, and, on the contrary, to show inexcusable negligence.</p> <p>7. Judgment, § 273*—what essential to warrant vacation of default after term. On a motion in the nature of a writ of error coram nobis, to set aside a judgment by default after term time, both diligence and merit must be shown in order to warrant relief.</p> <p>8. Judgment, § 274*—when fraud warranting vacation of by default not shown by affidavits. Fraud warranting the vacation of a judgment by default, on motion in the nature of a writ of error coram nobis, is not made out by affidavits setting up facts constituting purely matters of defense, on the theory if they had been called to the attention of the court the judgment could not have been recovered, and that failure to inform the court thereof constituted fraud.</p> <p>9. Judgment, § 274*—when affidavits insufficient to warrant vacation of by default. Proof of alleged fraud in the conduct of the case warranting the vacation of a judgment by default against an insurance company on a life insurance policy, after expiration of the term, on motion in the nature of a writ of error coram nobis, cannot be established by averments on information and belief on affidavits in support of such motion by officials who were not present at the hearing of the case.</p> <p>10. Judgment, § 125*—presumption os to validity of by default. On a motion, in the nature of a writ of errbr coram nobis, after the expiration of the term, to set aside a default judgment, any presumptions that are to be indulged in must be in favor of the validity of the judgment rather than against it.</p> <p>11. Judgment, § 272*—what fraud may be set up as basis for motion for writ of error coram nobis. The fraud which may be set up and urged as a basis for a motion for a writ of error coram nobis, to set aside a judgment by default after expiration of the term, is only fraud which has caused the defendant to omit entering an appearance or filing a plea or interposing a defense, or the like.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Nels Larson, 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. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in the Branch Appellate Court at the June term, 1917.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.</p>

<p>1. Corporations, § 260*—when purchase of license to manufacture patented articles given corporation is fraud on stockholders. Where certain persons enter into a contract with a corporation whereby they are to receive, in consideration of a license to manufacture and sell patented articles, a certain per cent of the gross receipts of the articles made under the license, and such license is assigned to a stockholder and director of the corporation, who acquires it for the benefit of himself and another director, and a third director acquires a part of the interest of the second director, which directors own a majority of the stock and control the board of trustees, the purchase of such license contract by the director is a fraud upon the rights of the stockholders, especially where the corporation is financially able to make the purchase, and hence the contract may not be the subject of an accounting in a suit by the director originally making the purchase against the corporation.</p> <p>2. Corporations, § 281*—when burden of proof on director in suit against corporation for accounting. The burden of proof, in an action for an accounting by a director of a corporation, as the assignee of a license contract between third persons and the corporation for the manufacture and sale of patented articles on a roy-alty basis, is on the director to show that his conduct towards the corporation was known to it, its officers and stockholders, and that his actions and dealings were in all respects fair and equitable.</p> <p>3. Corporations, -§ 265*—when corporation not estopped to claim violation of duty by director in taking assignment of license to manufacture goods from third persons. Even though a corporation and its stockholders have for many years acquiesced in a contract for the manufacture and sale of licensed articles on the royalty basis, which was originally made by the corporation with third persons and was subsequently assigned by the latter to a director for the benefit of himself and another director and later held by such two directors and a third director, such directors constituting a majority of the board of directors, and holding a majority of the stock, and large sums of money were paid to such directors as royalties on the contract, neither the corporation nor the stockholders are guilty of any conduct which estops them from setting up as a defense in a suit against the corporation for an accounting, by the director originally taking the assignment, the violation of duty by such latter director.</p>

<p>1. Bills and notes, § 460*—when knowledge of and participation in fraud of indorser by indorsee is Question for jury. Evidence held to present a question for the jury as to whether an indorsee of notes before maturity had knowledge of and participated in the fraud of the indorser in procurance of signatures of prior indorsers to notes made payable to the maker, a corporation, and indorsed by the corporation and the majority stockholder thereof.</p> <p>2. Bills and notes, § 448*—what not proof that indorsee of notes before maturity knew of intention of stockholder of indorser to convert proceeds of notes. That an indorsee of notes before maturity knew that the majority stockholder of a corporation, which was the indorser of the notes, was endeavoring to procure an advertising contract from the maker and agreed to take over the notes before the contract was executed, is not proof that he knew of the intention of such majority stockholder to convert the proceeds from the sale of the notes to his own use.</p> <p>3. Bills and notes, § 255*—when fraud of majority stockholder of corporation indorser does not defeat title of indorsee before maturity. Even though a corporation indorser of a note had no legal existence at the time notes were executed by another corporation in part payment of a contract for advertising, and the owner of the business of the corporation indorser merely used the corporate name to further his fraudulent enterprises, the title of an indorsee of the notes before maturity cannot be defeated where he was not a party to and did not profit by the misconduct of such owner and had no knowledge of the facts.</p> <p>4. ' Fkatjd, §67*—what insufficient to charge person with knowledge of. Mere suspicion that one is a party to or has knowledge of a fraud is not enough to charge him with knowledge of the fraud; some evidence must be presented which would authorize a finding against one charged with such knowledge of or participation in fraudulent conduct.</p> <p>5. Bills and notes, § 255*—what will not defeat title of indorsee before maturity for value. Only bad faith will defeat the title of the indorsee of commercial paper taken before maturity, for value, without knowledge of any defense thereto; and mere suspicion, the knowledge of circumstances calculated to excite suspicion, or even gross negligence of the indorsee in acquiring the paper, will not defeat his title.</p> <p>6. Pleading, § 74a*—when special plea excluded as filed too late. The trial court, in the exercise of a sound judicial discretion, has the right to exclude a special plea, where it appears that a long period of time has elapsed between the date of the bringing of the suit and the offer of the plea, and where the offer of the plea is unaccompanied by any statement explaining or excusing the delay.</p> <p>7. Pleading, § 74a*—what should be made subject of special plea at time of making of defense to note. If the indorsers and the maker of notes, defendants in an action on such notes by an indorsee before maturity, knew of the alleged fact in a special plea that the notes were accepted as collateral security for an indebtedness at the time the suit was brought, such fact should have been pleaded at the time of making the defense.</p> <p>8. Pleading, § 74a*—how defendants must show that they had no knowledge of defense at time of filing general issue and special pleas. If defendants in an action did not know of the facts alleged in a special plea, tendered nearly 4 years after the filing of several special pleas, in addition to the general issue, until the filing of a' motion for leave to file such special plea, 'such fact should have been shown by affidavit or otherwise.</p> <p>9. Courts, § 150*—when decision of Supreme Court binding on Appellate Court. The decision of the Supreme Court on a particular point is binding on the Appellate Court in a case in which the same question is- raised.</p> <p>10. Bills and notes, § 259*—when indorser estopped to claim want or failure of consideration. An indorser of negotiable paper, having given it the sanction of his own name, will not be permitted, by his own testimony, to show want or failure of consideration for it, where the note is in the hands of an innocent purchaser for value, who has received it in due course.</p> <p>11. Appeal and error, § 1491*—when exclusion of evidence in action on notes is harmless error. Reversible error was not committed, in an action by an innocent purchaser for value before maturity, on notes signed by a corporation as maker and indorsed by the corporation and.one of its agents individually, in the exclusion of evidence of agents of the corporation maker offered solely for the purpose of showing a want or failure of consideration, and inadmissible for such purpose, even though it might have been admitted for the purpose of showing what the consideration of the notes actually was at the time they were executed.</p> <p>12. Bills and notes, § 165*—when maker liable as indorser. Where a note is payable to a corporation maker and by the maker indorsed and delivered, the indorsement on the back of the note renders such maker liable, not only as a maker but also as an indorser.</p> <p>13. Conflict of laws, § 31*—when law of forum governs. The lex fori, or law of the forum, governs as to the form of remedy and all matters of procedure relating thereto.</p> <p>14. Bills and notes, § 317*-—when law of forum applicable in action on note. Whether, under the laws of the State of Illinois, makers and indorsers of promissory notes may be joined in the same action is a question of practice and procedure so as to render the law of the forum applicable.</p> <p>15. Partnership, § 43*-—what not prima facie case of. Even though stockholders of a corporation became partners as a consequence of the failure to complete the incorporation of the company by recording its charter in the recorder’s office of a particular county, a prima facie case of partnership of such stockholders with one who was not an incorporator of the company, and had not subscribed to any of its stock, was not made out by proof that such person had advanced money to the majority stockholder and to the company at various times and in various ways and had guaranteed the payment of certain obligations incurred by them.</p> <p>16. Partnership, § 20*—when not created. Special agreements for particular adventures and joint undertakings do not make a partnership.</p> <p>17. Bills and notes, § 406*—when burden not on plaintiff to show that he acquired title to notes as holder in due course. In an action by an innocent purchaser, for value, before maturity of notes, signed by a corporation as maker, indorsed by the maker and an agent of the corporation in his individual capacity to another person, and sold by such person to plaintiff, where it was not shown that the title of the person indorsing the note to plaintiff was defective, the burden of proof did not rest upon plaintiff to show that he acquired title to the notes in question as a holder in due course under section 59 of the Negotiable Instruments Act (J. & A. ¶ 7698), applying to cases “when it is shown that the title of any person, who has negotiated the instrument, was defective.”</p> <p>18. New trial, § 77*-—when on ground of newly discovered evidence properly refused. A new trial on the ground of newly discovered evidence is properly refused where, by the exercise of reasonable diligence, the evidence could have been discovered in time to produce it for trial.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>1. Carbiebs, § 278*—what degree of care required towards passenger. A carrier owes the duty towards a passenger to exercise the highest degree of care to protect him from harm.</p> <p>2. Cabbibbs, § 306*—what necessary to constitute person a passenger. To constitute a person a passenger it is necessary that such person should be under the control of the carrier in order to be entitled to its care. Such passenger must be at some place provided for passengers under the control of the carrier.</p> <p>3. Cabbibbs, § 329*—who is not passenger. Where a passenger has safely alighted from a street car at a transfer point, has cleared the car on which he is riding and is off the railroad property, the relation of passenger ceases and the mere fact that he has a transfer and intends to take another car at such point does not make him a passenger.</p> <p>4. Street railroads, § 64*—what duty under not to injure one who has been passenger. A street railroad owes the duty to one, who has been a passenger on its car, and has alighted to transfer to another car at a street intersection, to use ordinary care not to injure him, which duty the company owes to all the public alike who áre not passengers.</p> <p>5. Negligence, § 142*—when doctrine of res ipsa loquitur is not invocable. The doctrine of res ipsa loquitur is not invocable where in all the counts of the declaration specific acts of negligence are charged, and in no one of them is there a charge of general negligence.</p> <p>6. Negligence, § 142*—res ipsa loquitur defined. Res ipsa loquitur means “the thing speaks for itself.”</p>

<p>1. Appeal and error, § 866*—when rule as to furnishing complete abstract not complied with. Rule 18 of the Appellate Court, First District, requiring a party bringing a cause to the Appellate Court to “furnish a complete abstract or abridgment of the record,” is not complied with where the pleadings, the master’s report, master’s certificate of services, etc., the exhibits to the master’s report, the objections to the masters report, and the decree, are all set out in hcec verba.</p> <p>2. Appeal and error, § 1752*—when affirmance of decree for insufficiency of abstract proper. An abstract which does not comply with rule 18 of the Appellate Court, First District, because setting out the pleadings and record in hcec verba, might properly be stricken from the files and the decree pro forma affirmed.</p> <p>3. Mechanics’ liens, § 196*—when existence of sublease shown. The existence of a sublease is prima facie shown, in proceedings for enforcement of a mechanic’s lien, where although the lessee disclaimed having possession of the lease when it was called for as evidence, yet he admitted its existence and the amount of' the rent per month.</p> <p>4. Mechanics’ liens, § 94*—what is work for purpose of computing 4-month period for filing of lien notice. The putting of kick plates and brass on the doors of a building by a contractor, who is remodeling the building for a sublessee which work is of the value of §20, is not of inconsequential character so as to necessitate the disregarding of it in computing the 4-month period from the doing of the last work within which the lien notice must he filed.</p> <p>5. Mechanics’ liens, § 94*—what is period of time for filing claim, as against owner. Under section 7 of the Mechanics’ Liens Act (J. & A. ¶ 7145), as against the owner, lien claimants have 2 years within which to file their claims for liens.</p> <p>6. Mechanics’ liens, § 27*—who is “owner” within . act. A lessee for 99 years is an “owner” within the purview of section 1 of the Mechanics’ Liens Act (J. & A. ¶ 7139).</p> <p>7. Mechanics’ liens, § 27*—what is meaning of word “owner.” The word “owner” as used in the Mechanics’ Liens Act means the owner of any interest in the land.</p> <p>8. Mechanics’ liens, § 32*—when affirmative assent by lessee to snaking of improvements by sublessees shown. On a hill to enforce a mechanic’s lien, evidence held sufficient to show not only that the lessee permitted improvements to be made by a contractor working for the sublessee, but that he also affirmatively assented to the making of such improvements.</p> <p>9. Mechanics’ liens, § 32*—when interest of lessee is subject to for work, done for sublessees. The interest of a lessee in the premises is subject to a mechanic’s lien for work done by a contractor employed by the sublessees, wherp such lessee not only permitted without protest the improvements to be made but also affirmatively consented to the making of such improvements.</p> <p>10. Mechanics’ liens, § 175*—when subcontractors not necessary parties to proceedings to enforce lien. It is unnecessary that subcontractors be made parties to proceedings by the contractor to enforce a mechanic’s lien, where it is not shown that any subcontractor under the contractor has any unpaid claim or that any subcontractor has not been paid for his work done upon the premises.</p> <p>11. Mechanics’ liens, § 212*—when defense raised too late. The defense that subcontractors were not made parties to proceedings to enforce a mechanic’s lien comes too late when made on appeal for the first time.</p> <p>12. Mechanics’ liens, § 212*—when assumed that subcontractors neither have nor claim liens. It will be assumed on appeal, in proceedings to' enforce a mechanic’s lien in favor of the contractor, that subcontractors neither have nor claim liens where the time for filing notice of liens by subcontractors has expired, and there is no evidence in the record that any notice of any claim for a lien has been filed by any of them.</p> <p>13. Appeal and ebbob, § 1077*—when assignment of cross errors proper. Where an appeal is general, and not limited, appellee may assign cross errors.</p> <p>14. Appeal and error, § 1077*—when right to assign cross errors is preserved in favor of contractor in mechanics' liens proceedings. The right to assign cross errors was preserved to the contractor, appellee, in proceedings to enforce a mechanic’s lien in favor of a contractor, where the contractor filed objections to the portion of the master’s report disallowing his claim under the so-called contract, which objections were refiled as exceptions before the chancellor and overruled by both.</p> <p>15. Building and constbuotion contracts, § 75*—when contractor not under duty to complete wortc. It is not incumbent upon a contractor to complete' the work of remodeling a building for sublessees where the latter first breach the contract and abandon the sublease.</p> <p>16. Mechanics’ liens, § 32*—when lien for amount due contractor from sublessees extends to interest of lessee. The liability of a lessee on a contract for work done by contractor for sub-lessees is coextensive with that of the sublessees, where he is a party to the contract, and a lien for the amount so due extends to the interest-of the lessee in the land upon which the improvements were made.</p> <p>17. Building and construction contracts, § 81*—when reasonable value of worlc done and materials furnished may be recovered. Where one party repudiates a building contract the other party may treat the contract as rescinded and recover the reasonable value of the work done and material furnished thereunder.</p>

<p>1. Gaming, § 18*—when note given to brokers and arising out of gambling transaction is based on sufficient consideration. Even though a note given to brokers arose out of a gambling transaction, it was based upon a sufficient consideration and was valid, where such note was given in settlement of a pending suit by the brokers against the principals, and the collateral originally deposited with the brokers as security for the purchase of stocks was returned.</p> <p>•2. Compromise and settlement, § 11*—when settlement by note of claim in litigation is conclusive. A settlement by note of a pending suit by a broker against his principals for the amount of loss sustained on stock sold in the market estops both parties from any further litigation of the matter in dispute.</p>

<p>1. Sales, § 226*—when pawnbroker liable to owner of stolen goods. One whose diamond earrings were stolen by a Pullman porter, while a passenger on a Pullman sleeper, may maintain an action under section 243 of the Criminal Code (J. & A. ¶ 3896) against a pawnbroker in Whose possession the earrings were at one time after the theft.</p> <p>2. Appeal and ebbob, § 1491*—when exclusion of evidence is harmless error. In an action under section 243 of the Criminal Code (J. & A. ¶ 3896), against a pawnbroker, in whose possession the stolen earrings of plaintiff were at one time after the theft, the question of error in the exclusion of evidence on the part of defendant, that at some time previous to the trial he had seen two diamonds he had given another person in part payment for the earrings in the possession of one of the attorneys for plaintiff, was not reviewable where the record disclosed that upon the defendant’s attorney disclaiming his ability to show how or for what purpose the diamonds came into the possession of plaintiff’s attorney, the court ruled that this unconnected fact was immaterial.</p> <p>3. Sales, § 226*—what evidence is immaterial in action against pawnbroker to recover value of stolen goods. In an'action under section 243 of the Criminal Code (J. & A. ¶ 3896) against a pawnbroker, in whose possession the stolen earrings of plaintiff were at one time after the theft, evidence of defendant that some time before the trial he had seen two small diamonds which he had given another person in part payment for the earrings in the possession of one of the attorneys for plaintiff, was not material or relevant, especially where defendant pleaded no counterclaim or set-off, and in brief stated that he was “not seeking to recoup.’’</p> <p>4. Sales, § 33*—what constitutes fraudulent sale of diamonds exchanged for stolen diamond earrings. Even though one who had diamond earrings stolen by a Pullman porter while a passenger in a Pullman sleeper received exchanged diamonds from the porter, who had obtained them from another who had received them from a pawnbroker in exchange for the stolen diamonds, it was at most a fraudulent sale, voidable not at the instance of the pawnbroker but at the interest of the vendor.</p> <p>5. Appeal and error, § 1473*—when improper admission of evidence is harmless error. The admission of improper testimony relating to an undisputed matter is harmless error.</p> <p>6. Costs, § 67*-—when imposed because of dilatory appeal. The statutory penalty of costs for appeals prosecuted for the purpose of delay is properly imposed where the appeal is wholly without merit.</p>

<p>1. Equity, $ 574*—When bill in nature of bill of review merely presents matter in abatement. A bill in the nature of a bill of review to set aside a decree for separate maintenance in favor of the wife, because of the discovery, after entry of the decree, that the wife died prior thereto, merely presents a matter of abatement.</p> <p>2. Abatement and revival, § 50*—when suit not ipso facto abated. The death of a party in a chancery case does not, ipso faeto, abate the suit without any order of the court.</p> <p>3. Equity, § 574*—what not basis for bill in nature of bill of review. Mere matters of abatement are insufficient as a basis for a bill in the nature of a bill for review.</p> <p>4. Judgment, § 9*—when after death of party is not void. A judgment for separate maintenance rendered in a divorce suit in favor of cross complainant, after her death, is erroneous but not void.</p> <p>5. Equity, § 569*—when allowance of petition for leave to file bill of review within discretion of court. The allowance of a petition for leave to file a bill of review for newly discovered evidence rests in the sound discretion of the court.</p> <p>6. Equity, § 570*—when discretion of court in denying petition for leave to file bill of review not abused. There is no abuse of discretion in denying a petition for leave to file a bill of review for newly discovered evidence where the newly discovered matter, the death of the cross complainant seeking separate maintenance in a divorce suit, did not relate to the merits of the controversy but was presented as ground for relieving petitioner from the payment of attorney’s fees in the nature of costs, which fees it was equitable that he pay.</p> <p>7. Equity, § 569*—wh at is function of till of review filed for newly discovered evidence. The function of a bill of review, filed for newly, discovered evidence, is to relieve one having a meritorious claim from a clear miscarriage of justice where the court is able to see, upon a view of all the circumstances, that the remedy can be applied without mischief to the rights of innocent parties, and without unduly jeopardizing the stability of judicial decrees.</p> <p>8. Judgment, § 9*—when decree for separate maintenance deemed entered prior to death of wife on same day. Where there is no claim that there are any property rights surviving a wife that would be affected by a decree awarding separate maintenance to a wife as cross complainant in a suit by the husband for divorce, which decree was rendered on the same day as the death of the wife but after her death, the doctrine that judicial acts are considered to have taken place at the earliest period of the day when done should be applied, and the decree should be regarded as rendered prior to her death.</p>

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

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

<p>Error to the County Court of Edgar county; the Hon.- Dan V. Dayton, Judge, presiding. Heard in this court at the September term, 1917.</p>

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

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

<p>1. Principal and agent, § 200*—when Knowledge of agent deemed Knowledge of principal. The knowledge of a surveyor that, when he gave directions to a lessee of coal mining rights in a mine to proceed a certain number of feet further than he had gone, such lessee had already encroached on land of another must be regarded as the khowledge of his principal, the mine owner.</p> <p>2. Mines and minerals, § 7*—when lessor Hablé’ for trespass of lessee in abstracting coal of another. Where the trespass of a lessee of coal mining rights in encroaching upon the land of another and abstracting coal was acquiesced in, authorized and ratified by the lessor, the latter is liable in trespass for the damages, sustained by the owners of the mined coal.</p> <p>3. Mines and minerals, § 7*—when coal mine owner liable for trespass by lessees in abstracting coal of another. A coal mine owner cannot be held liable for the trespassing acts of lessees of mining rights in encroaching upon the- land of another and abstracting coal, except in so far as it is shown to have authorized, directed or, with full knowledge of the facts, ratified the acts complained of.</p> <p>4. Contracts, § 205*—construction of ly court. The construction of contracts is for the court.</p>

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

<p>Sales—when duty of seller to notify buyer when he will deliver grain. Where no definite time is fixed in a contract for the sale of large quantities of grain when the same will be delivered, but that is left to the option of the seller, it is his duty to notify the purchaser when he will deliver the same so that the purchaser can be prepared to receive it, and until such notice is given, the seller cannot claim a breach of the contract if the purchaser is not ready to and does not receive it when it is tendered.</p>

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

<p>1. Equity—when jurisdiction of person of former master in chancery acquired in foreclosure proceedings. Jurisdiction of the person of a former master in chancery was acquired in foreclosure proceedings, by the terms of the decree of which the master was required to pay certain bonds, by service of notice of pendency of a petition for a citation to compel him to pay the same and of the substance of the contents and prayer thereof.</p> <p>2. Equity—when question of sufficiency of notice of pendency of proceedings against master in chancery waived. The question of sufficiency’ of service of notice of pendency of a petition for a citation to compel a master in chancery to pay bonds required to be paid under the terms of a foreclosure decree is waived by answer and plea to the bill.</p> <p>3. Equity—when jurisdiction of subject-matter acquired in proceedings against master in chancery to compel payment of bonds pursuant to foreclosure decree. Jurisdiction of the subject-matter was acquired by the court when a petition for a citation to compel a master in chancery, who had sold certain property under a foreclosure decree, to pay certain bonds, was filed in which it was alleged that the master had in his hands funds that came into his hands as master in chancery, which he refused to turn over to the petitioner, to whom they rightfully belonged.</p> <p>4. Equity, § 394*—what is nature of office of master in chancery and right of supervision over acts by court. A master in chancery is an officer of the court, and in all matters where his power to act is derived from an order of court, such as an order to sell property in a foreclosure proceeding and distribute the proceeds of such sale, he is a part of the court, and his acts are subject to the supervision of the court to the end that the orders of the court shall be performed.</p> <p>5. Equity, § 394*—when court has jurisdiction to compel master in chancery to turn over money. Where a master in chancery has received by virtue of his office, or has had come into his hands in the course of some legal proceeding, money or property which he has no equitable right to retain, the court in which such proceeding is pending has jurisdiction, on petition or motion of the party entitled thereto entered in the same suit, to order the monee or property returned to the party to whom it belongs, even though his term of office has expired.</p> <p>6. Tbusts, § 239*—when right of action against trustee not tarred ty lapse of time. Neither the statute of limitations nor laches will, as between the trustee and cestui que trust, bar an action to recover funds held as a direct or express trust.</p> <p>7. Tbusts, § 239*—when lapse of time is defense in ease of resulting trust. Neither the defenses of the statute of limitations nor laches will, as between trustee and cestui que trust, avail in case of a resulting trust until the trust is repudiated.</p> <p>8. Tbusts, § 239*—what is trust fund, right to recover which not tarred ty laches or statute of limitations. Money in the hands of a master in chancery after the rendition of a foreclosure decree requiring payment of certain bonds by him is a trust fund, and, where no disavowal of the trust is made until immediately before the filing of a petition for a citation in the foreclosure proceedings to compel him to pay such bonds, the action is not barred by laches or the statute of limitations, regardless of whether the trust be classed as an express or resulting trust.</p> <p>9. Equity—what is potent proof that tonds not paid ty master in chancery pursuant to foreclosure decree. Possession of bonds by the owner is potent proof of the falsity of a claim by a master in chancery that he paid such bonds pursuant to a decree in foreclosure proceedings requiring such payment and the taking up of the bonds.</p>

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

<p>1. Master and servant—what businesses required to furnish sanitary wash rooms for employees. Section 184, ch. 48, Hurd’s Rev. St. [Callaghan’s 1916 St. Supp. ¶ 5417(33)], providing that “every owner or operator of a coal mine, steel mill, foundry, machine shop, or other like business in which employees become covered with grease, smoke, dust, grime and perspiration, to such extent that to remain in such condition after leaving their work without washing and cleansing their bodies and changing their clothing will endanger their health or make their condition offensive to the public, shall provide and maintain a suitable and sanitary wash room,” applies not only to employments named in the act but to all other like businesses of an established or permanent character in which the employees become covered with grease, smoke, dust, grime and perspiration to such an extent that to remain in such condition after leaving their work without washing and cleansing their bodies and changing their clothing will endanger their health or make their condition offensive to the public.</p> <p>2. Master and servant—what is purpose of statute relating to providing of wash rooms in industrial plants. The purpose of section 184, ch. 48, Hurd’s Rev. St. [Callaghan’s 1916 St. Supp. ¶ 5417(33)], relating to the providing of wash rooms in industrial plants, is to promote the health and welfare of employees in the specified lines of employment, where the conditions are such that employees become covered with grease, smoke, dust, grime and perspiration to such an extent that to remain in such condition after leaving their work without washing and cleansing, their bodies and changing their clothing will endanger their health or make their condition offensive to the public, so that every facility should be afforded for cleanliness and to provide for the comfort and welfare of those with whom persons employed in such places come in contact after leaving their places of employment.</p> <p>3. Master and servant—what are questions for jury in prosecution of railroad for failure to furnish wash rooms in or near roundhouse. In a prosecution of a railroad company under sections 184, 185, 186, 187, ch. 48, Hurd’s Rev. St. [Callaghan’s 1916 St. Supp. ¶¶ 5417(33), (34), (35), (36)], for failure to provide suitable wash rooms in or near its roundhouses for the roundhouse employees, questions for the jury were presented as to whether the roundhouse and the business therein conducted was a place and business where the employees “become covered with grease, smoke, dust, grime and perspiration to such an extent that to remain in such condition after leaving their work without washing and cleansing their bodies and changing their clothing would endanger their health or make their condition offensive to the public,” and, if so, whether defendant maintained there a “suitable and sanitary wash room at a convenient place in or adjacent to” such place of business, “provided with lockers in which employees may keep their clothing”, and “provided with hot and cold water and with sufficient and suitable places and means for using the same.”</p> <p>4. Master and servant—when shown that railroad failed to comply with statute as to providing wash rooms. Evidence held sufficient to show that a railroad company was guilty of failure to provide suitable wash rooms for the employees of its roundhouse as required by section 184, ch. 48, Hurd’s Rev. St. [Callaghan’s 1916 St. Supp. ¶ 5417(33)].</p>

<p>Error to the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1918.</p>

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

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>1. Landlord and tenant, § 331*—when lien acquired by landlord on tenant’s goods. The remedy of the landlord by distress for rent is regulated by statute, and the landlord has no lien by law on any of the property of the tenant, except growing crops, until the goods are distrained.</p> <p>2. Landlord and tenant, § 366*—what property on premises may not be seized for rent due from tenant. Section 16, ch. 80, Hurd’s Rev. St. (J. & A. ¶ 7054), providing that the landlord may seize for rent the personal property of his tenant to be found in the county where the tenant resides, “and in no case shall the property of any other person, although the same may be found on the premises, be liable to seizure for rent due from such tenant," must be construed to mean what its language implies.</p> <p>3. Landlord and tenant—what is right of third person to intervene in distress proceedings for rent against tenant. The right of a grand lodge as claimant of the property of the local lodge to intervene in distress proceedings for collection of rent against the local lodge is purely statutory and arises from the provisions of section 20, ch. 80, Hurd’s Rev. St. (J. & A. ¶ 7058), providing that a suit for distress for rent shall proceed in the same manner as an attachment, and section 29, ch. 11 (J. & A. ¶ 520), providing that in all cases of attachment any person, other than the defendant, claiming the property attached may interplead, and the court shall impanel a jury to inquire into the right of property.</p> <p>4. Landlord and tenant—when jurisdiction to try right to property between landlord and intervener in distress proceedings not lost. In an action by a landlord for distress for rent against a local lodge as tenant, in which the supreme lodge intervenes as claimant of the property, the contention that the court has no jurisdiction to determine the right of property between the landlord and the supreme lodge because the latter had been dismissed out of the case prior to intervening is without merit.</p> <p>5. Landlord and tenant—when ownership of property conclusively found to he in intervener in distress proceedings for rent. In an action by a landlord for distress for rent against a local lodge as tenant, in which the supreme lodge intervened as the claimant of the property, and in which the Circuit Court found that the supreme lodge was the owner of the property, and the finding was challenged only on the untenable ground that the court had no jurisdiction, the ownership of the property was conclusively settled in favor of the supreme lodge.</p> <p>6. Landlord and tenant—when presumption of fraud does not arise from failure of third person to take possession of its property on leased premises. Where, in a chancery suit between a supreme lodge and a local lodge to determine the right to the property of the local lodge, after revocation of the latter’s charter, it is decreed that the property belongs to the supreme lodge, it is a matter of public record, and no presumption of fraud arises from failure to take possession of the property before commencement of distraint proceedings for rent by the landlord against the local lodge.</p>

<p>1. Insurance, § 113*—what constitutes delivery of accident policy. The mailing of an accident policy, after acceptance by the insurer of the application of the insured and payment of the premium, to the agent of the insurer, with directions to deliver it to the insured, is a delivery to the insured from the time of the mailing of the policy, if no further action upon the part of the insurer is contemplated.</p> <p>2. Insurance—what constitutes acceptance of accident policy. There was an acceptance of an accident policy by the insured at the time of taking the application where at such time a sample copy of the policy was presented to the insured and he expressed his satisfaction with the policy and paid the premium, even though the application contained a statement that the policy issued on the application was to take effect when received and accepted by the insured, and a question in the application, as to whether the insured agreed upon receipt of the policy to examine it, and if it was not satisfactory to return it in three days in order that the amount paid might be refunded, was answered in the affirmative.</p>

<p>1. Colleges and universities, § 3*—what is nature of Board of Education of State of Illinois. The Board of Education of the State of Illinois is a private corporation created in the year 1856 by “An Act for the establishment and maintenance of a Normal University” (J. & A. ¶¶ 10419-10431).</p> <p>2. Sales, § 20a*—when contract to furnish coal as required is binding% A contract to furnish as much coal as may be needed, required, or consumed by the acceptor during a limited time, is binding.</p> <p>3. Sales, § 15*—when contract void for want of mutuality. A contract to furnish such coal as the acceptor might want or desire in his business is void for want of mutuality, since he is not bound to want or desire any coal.</p> <p>4. Sales, § 72*—when parol evidence is admissible to ascertain subject-matter of contract and meaning of particular term. Where a contract for the sale of coal is not as plain and explicit as it might be, in order to determine whether it is a contract for the season’s supply or for “about 2,000 tons,” previous and contemporary transactions and facts may be taken into consideration to ascertain the subject-matter of the contract and the sense in which the parties used particular terms, but not to alter or modify the plain language thereof.</p> <p>5. Sales, § 65*—when contract for coal construed as one for season’s supply at fixed price. A contract for the purchase of "about 2,000 tons” of coal for a year ending on a certain date must be construed as one for the season’s supply at the price fixed in the contract, where a similar contract was entered into the year before and sufficient coal to meet the season’s requirements at the price fixed in the contract was delivered, although the amount delivered exceeded the exact amount referred to in the contract.</p>

Augustus A. Pabtlow, Judge, presiding. , Heard in this court at the April term, 1918. Statement by the Court. Lincoln Payne, complainant, as trustee in bankruptcy of the News Printing Company, filed this bill in equity in the Circuit Court of Vermilion county to the October term, 1914, against .Louis F. Stuebe, Minna Stuebe and F. A. Baumgart.

<p>Appeal from the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.</p>

<p>1. Workmen’s Compensation Act, § 3*—what not extrahazardous employment. In an action by an employee to recover for personal injuries, the work in which plaintiff was engaged held not to be extrahazardous, within the meaning of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. ¶ 5475(1) et seq.].</p> <p>2. Workmen’s Compensation Act, § 12*—when reference to in declaration considered as surplusage. In an action by an employee to recover for personal injuries, while references to the Workmen’s Compensation Act are improperly included in the declaration when the act does not apply, such references will be treated as merely surplusage when the counts state a good cause of action at common law.</p> <p>3. Pleading, $ 369*—how surplusage in declaration may he reached. Surplusage in a declaration cannot be reached by either a general or special demurrer, but the proper procedure is a motion to strike.</p>

<p>1. Chattel mortgages, § 68a*—when acknowledgment sufficient. The fact that a chattel mortgage is acknowledged by an attorney in fact before a deputy clerk of the Municipal Court of Chicago, in the name of the clerk, while the power of attorney authorized him to acknowledge it before the clerk of that court, does not render the acknowledgment insufficient.</p> <p>2. Clerks oe courts, § 12*—what is power of deputy clerk as-to taking acknowledgment. A deputy clerk of the Municipal Court of Chicago has power to use the name of the clerk of the court in taking an acknowledgment of a chattel mortgage, and such acknowledgment is as binding on the principal and third parties as if it had been taken by the clerk personally.</p> <p>3. Chattel mortgages, § 203*—when failure of mortgagee to take possession is fraud as to third persons. Possession of mortgaged chattels must be taken by the mortgagee within a reasonable time after default in payment or other condition broken by the mortgagor, and failure to take such possession is fraud per se as to third persons and not subject to explanation.</p> <p>4. Chattel mortgages, § 203*—what is reasonable time for mortgagee to take possession after default. The reasonable time in which the mortgagee of chattels is required to take possession after a default in payment or breach of other condition is to be determined from the special circumstances in each case.</p> <p>5. 1 Bills and notes, § 270*—when demand of payment unnecessary. A note payable on demand is payable at once, and suit can be maintained on it without any demand.</p> <p>6. Chattel mortgages, § 140*—when lien lost as against rights orf distraining landlord. Where a chattel mortgage is given to secure the payment of seven notes bearing the same date, six of them representing monthly instalments and being payable monthly and the seventh being payable on demand, after date, and default is made in the payment of the last three of the six notes, the lien of the mortgage is lost so far as it concerns the rights of the mortgagor’s landlord, where he distrained for rent after the default in the instalments, even though the mortgagee thereafter made demand on the mortgagor for the payment of the seventh note and, not having received payment, demanded the property which had been taken under the distress warrant.</p>

<p>1. Master and servant, § 81*—when burden of showing hiring by month not sustained. The burden Is on plaintiff, In an action by an employee to recover wages, to show by a preponderance of the evidence that his hiring was by the month where he contends that such was the case, and this burden is not sustained by showing that he was paid at a monthly rate.</p> <p>2. Master and servant, § 14*—when no hiring for fixed period. Where there is no specification of any particular time of service agreed upon in a contract of hiring, there is no hiring for any fixed period.</p>

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