Volume 213 — Illinois Appellate Court Reports

<p>Appeal from the Circuit Court of Cook county; the Hon. Jkssb A. Baud win, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.</p>

<p>1. Municipal corporations, § 82*—what constitutes amendment of railroad fence ordinance. An ordinance which provides for the fencing of railroad tracks in the city, at a time and at places (with reference to the tracks) to be directed by the city council, is to be regarded as an amendment rather than a repeal of a prior ordinance providing that the time and places of fencing shall be directed by the mayor and the commissioner of public works.</p> <p>2. Municipal corporations, § 82*—when re-enactments of provisions of ordinance neutralize repeals. Where an ordinance regulating the fencing of railroad tracks in a city is, though several times repealed, continued in force and in substantially the same form as originally enacted and re-enactments of the ordinance are simultaneous with the provisions for repeal, such re-enactments neutralize the repeals with regard to the provisions carried from the earlier ordinance into the new.</p> <p>3. Railroads, § 532*—what not condition precedent to liability for injury due to failure to fence track under ordinance. An ordinance providing that railroad companies operating railroads within the city limits shall, within such time and at such places as may be prescribed by the council, cause walls or fences to be erected, held not to make action by the council a condition precedent to liability for an injury arising through a failure to fence the track.</p> <p>4. Railroads, § 532*—when shown that time and place for fencing designated by city authorities. In an action against a railroad company to recover for personal injuries alleged to have been caused by defendant’s failure to comply with a fencing ordinance, evidence held to support a finding that the municipal authorities designated by the ordinance had prescribed the time and place for fencing as provided in the ordinance.</p> <p>5. Railroads, § 532*—when status of company as to fencing tracks is fixed by municipal authorities. Where the municipal authorities designated by an ordinance to prescribe the time and place for fencing railroad tracks in the city act thereunder, the status of a railroad company whose fences are so prescribed by them is thereby fixed and is not affected by the fact that the ordinance is subsequently repealed and simultaneously re-enacted in substantially the same terms, except that the new ordinance designates a different municipal authority to prescribe such time and place for fencing.</p> <p>6. Munich?ae corporations, § 100*—when admission of impleaded fence ordinance not error. In an action against a railroad company to recover for personal injuries alleged to have been caused by its negligence in failing to comply with a fence ordinance, where it appears that the ordinance, though repealed several times, had been simultaneously re-enacted in practically the same terms, it is not error to receive in evidence the ordinance in force at the time of the injury, though such ordinance was not pleaded, where it is substantially the same as the ordinance which was pleaded.</p> <p>7. Evidence, § 145*—when letter press copies admissible. Letterpress copies of purported comm unications by the commissioner of public works of a city to a railroad company, directing compliance with a fence ordinance, which are produced from the records of the department of public works by an employee in that department, who testifies that he is custodian of them and to facts showing that they were kept in the discharge of a public duty, are admissible on the question as to whether the railroad company accepted the ordinance.</p> <p>8. Infants, § 1*—when boy is sui juris. A boy a little under 15 years of age who is in the seventh grade at school, and as to whose intelligence, capacity and experience there is nothing to show that he is subnormal, is sui juris.</p> <p>9. Ratero ad s, § 532*—when fence ordinance applies to persons sui juris. An ordinance requiring every person owning, leasing or operating a steam railroad in the limits of the city to fence the tracks in such time and maimer and at such places, except at public street crossings, as shall be prescribed by specified municipal authorities, applies to persons sui juris as well as to those non sui juris, where there is nothing in the language of the' ordinance or in the specifications for the fences called for by it indicating that it contemplates only persons non sui juris.</p> <p>10. Raieboads, § 517*—what duty owed to trespassers and licensees. The only duty which a railroad company owes trespassers and licensees on its right of way is not to injure them wantonly or wilfully.</p> <p>11. Raieboads, § 586*—when not error to refuse to direct verdict on ground that plaiwtiff is a trespasser. In an action against a railroad company to recover for personal injuries through being struck by a train while standing near defendant’s track, where the action is based on defendant’s negligence in failing to comply with a fence ordinance, it is not error to refuse to direct a verdict for defendant on the theory that plaintiff was a trespasser nor to refuse instructions requested by defendant to the effect that, if plaintiff was a trespasser, he could not recover.</p> <p>12. Negligence, § 198*—contributory as question of fact or law. The question of contributory negligence is ordinarily one of fact for the jury, and only when the undisputed evidence shows that the injury resulted from the injured party’s negligence can it be held to be a matter of law.</p> <p>13. Negligence, § 201*—care required of child sui juris as question for jury. In an action to recover for personal injuries to a child sui juris, the standard of care required of the child varies with his age, capacity, experience, etc., and is usually a question for the jury.</p> <p>14. Railroads, § 589*—when contributory negligence of boy struck by train is question for jury. In an action to recover for personal injuries to a boy about 15 years of age who was struck, while standing near defendant’s track, by an iron bar protruding from a train moving thereon, where it appears that, in using the track as he was, the boy was doing as many others, including adults, were accustomed to do, and that the point in question was on a beaten path extending from the end of a public street and crossing the right of way, there being nothing to indicate where the street ended and the right of way began, and that he stood two feet from the -track, the question, of his contributory negligence was one of fact for the jury. '</p> <p>15. Railroads, § 548*—what one standing near train not required to anticipate. One standing 2 feet from a moving train is not bound to anticipate that an iron bar will be permitted to protrude that distance from the train.</p> <p>16. Negligence, § 196*—when proximate cause is question of fact. Whether or not a particular act of negligence is the proximate cause of a subsequent injury is a question of fact for the jury.</p> <p>17. Negligence, § 49*—when proximate cause of accident. Where the negligence of a defendant causes a condition which continues up to the time of the accident and, operating with other causes, .brings it about, it is a proximate cause thereof, if defendant, in the exercise of reasonable care, could have foreseen that some such injury would probably result from his negligence.</p> <p>18. Railroads—when shown that failure to fence was proximate cause of injury. In an action against a railroad company to recover for personal injuries alleged to have been caused by defendant’s failure to comply with, a fence ordinance, evidence that plaintiff was injured while standing on defendant’s right of way, at a point where it was not fenced, through being struck by a bar of iron protruding from a moving car, is sufficient to support a finding that the failure to fence was the proximate cause of the injury, and that defendant could have foreseen that some such injury would probably occur as a result of its negligence.</p> <p>19. Railboabs—failure to comply with fence ordinance as prima facie negligence. Failure of a railroad company to comply with an ordinance requiring it to fence its track is prima facie negligence.</p> <p>20. Negligence, § 47*—number of proximate causes of injury. There may be more than one proximate cause for an injury.</p> <p>21. Railroads, § 532*—when liable for injuries due to failure to fence track. Where, by an ordinance, the fencing of railroad tracks is required and the tracks of two roads run parallel and near each other, one of such roads is not relieved from liability for personal injuries alleged to have been caused by its failure to fence, by reason of the fact that plaintiff, before reaching its track, had crossed the track of the other road, which was also unfenced, as there is an absolute duty on each road to fence its track.</p>

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

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

<p>1. Appeal and error, § 269*—what is test in determining whether judgment is final. In determining whether or not a judgment is a “final” judgment from which appeal will lie to the Appellate Court, the test is not in the words employed in the judgment, but in its substance and intention.</p> <p>2. Appeal and error, § 269*—when judgment is final. If the substance of the litigation and merits of the controversy have been finally adjudicated, the judgment therein is final so that appeal will lie therefrom.</p> <p>3. Appeal and error—m>M# is a final order in garnishment proceedings. An order of a trial court which finds that the plaintiff is entitled to recover a certain amount and costs from one garnisheed as executor, but that no execution shall issue and the judgment shall not “be or be made final until after the entry of an order of distribution or for payment of said legacy” to the defendant by the Probate Court, and that upon the entry of an order by such court for the payment of the legacy to defendant, the judgment shall, by a supplemental order in the cause, be made final and thereupon execution shall issue against defendant, is a final order from which appeal will lie to the Appellate Court.</p> <p>4. Garnishment, § 24*—when binding and, valid, assignment of legacy to garnishee shown. On garnishment against one individually and as executor, wherein the garnishee claimed that he was a bona fide assignee of defendant’s legacy, uncontradicted evidence that the garnishee had advanced money to defendant to the amount claimed by him and promissory notes by defendant and memoranda by garnishee to a like effect and a signed and sealed assignment of the legacy by defendant to the garnishee, all of which were placed in evidence, held, to show a binding and valid assignment of the legacy to the garnishee.</p> <p>5. Garnishment. § 1*—nonretroactive effect of Act of 1915. The Garnishment Act, effective July 1, 1915 (Callaghan’s 1916 St. Supp. f 5936), has not a retroactive effect.</p>

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

<p>1. Bills and notes, § 279*—when cheek should be presented for payment. Where the bank on which a check Is drawn and all of the parties interested reside in the same city, it is the holder’s duty to present it for payment on the day it is received, or, at the furthest, on the next day.</p> <p>2: Bills and notes, § 279*—when cheek not presented for payment in reasonable time. The holder of a note does not present it for payment in a reasonable time, where, 2 days after it comes into his possession, he deposits it by mail in a bank in a distant part of the city and not in a bank in the same general neighborhood as the drawee, in both of which he regularly keeps accounts.</p> <p>3. Bills and notes, § 283*—when drawer not discharged for want of due presentment. The want of due presentment of a check does not discharge the drawer unless he suffered some loss or injury thereby, and then only pro tanto.</p> <p>4. Bills and notes, § 406*—who has burden to show no injury from delay in presentment of cheek. The burden is on the holder of a check who has not duly presented it to show that his delay did not result in loss or injury to the drawer.</p>

<p>Appeal from the Circuit Court of DeKalb county; the Hon. Clinton F. Ibwin, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>1. Tbial, § 124*—when statements of counsel are not reversibly erroneous. In an action for damages for death of a child, it was not reversible error for counsel for plaintiff to state in his opening argument that the parents of deceased had told him that deceased was a very beautiful child and had long curly hair, where an objection to such remarks was sustained.</p> <p>2. Appeal and ebrob, § 1712*—when error as to damages waived. An assignment of error, in an action for negligent death, that the damages were excessive, is waived where not argued in the opening brief.</p> <p>3. Trial, § 131*—when questioning of credibility of witness by counsel not error. It is proper for counsel for plaintiff, in an action for negligent death, to question the truth of the testimony of a witness for defendant, if the evidence warrants such criticism.</p> <p>4. Appeal and error, § 1514*—when remarks of counsel not reversibly erroneous. Remarks of counsel cannot be complained of as reversible error where an objection to such remarks is sustained.</p> <p>5. Appeal and error, § 1514*—when incorrect statement of counsel is not reversible error. The fact that plaintiff’s attorney, in an action against a railroad company for the negligent death of a child, referred to missing mail, which had been taken from the depot platform where the accident occurred and was found in the house of the parents of deceased about one year before the accident, as United States mail, was not reversible error where the court immediately corrected counsel and stated that it was train mail, as it was, in fact.</p> <p>6. Tbial, § 187*—what constitutes waiver of motion for directed verdict. The introduction of testimony by defendant, after making a motion for a direction of a verdict at the close of plaintiff’s evidence in chief, constitutes a waiver of the motion.</p> <p>7. Trial, § 195*—when refusal of directed verdict for defendant proper. It is proper to refuse a motion for a directed verdict in defendant’s favor, in an action for negligent death, at the close of all the evidence, where the evidence tends to make out a case for plaintiff.</p> <p>8. Negligence, § 107*—what is effect of by parents of child negligently killed. In an action for the negligent death of a child, if the preponderance of the evidence shows that the parents did not exercise the same degree of care towards the child as ordinarily prudent persons would exercise under the same circumstances, and such failure by the parents contributed to the injury, then the defendant should be found not guilty.</p> <p>9. Instructions, § 154*—when modification by eliminating portion referring to burden of proof not error. In an action for the negligent death of a child, the modification of an instruction, which was requested by defendant, placing the duty on the parents of the child to exercise the same degree of care concerning her as an ordinarily prudent person would exercise under like circumstances, and stating that the jury should find defendant not guilty unless they believed from the preponderance of evidence that the parents exercised that care, by depriving the defendant of the portion casting the burden of proof upon plaintiff, was not error where other instructions correctly stated the law as to the burden of proof.</p> <p>10. Railroads, § 519*—when may not maintain push car on platform unlocked. If the presence of a railroad push car upon an abandoned depot platform is calculated to attract little children to come upon the platform and push the car back and forth upon the platform and to ride upon the car, and if that is dangerous to little children, the company has no right to maintain the push car on the platform unlocked.</p> <p>11. Rahsoads, § 593*—when modification of instruction as to right to maintain push car on premises is proper. In an action against a railroad company for the negligent death of a child, which was killed as the result of being struck by a passing train while playing with an unlocked push car on an abandoned depot platform, the modification of an instruction that the defendant had the legal right to place and maintain the car on. its premises, so as to state that defendant ordinarily had such right, was proper.</p> <p>12. Railroads, § 593*—when instruction on liability of railroad for death of child struck by train while playing with push car properly refused. In an action against a railroad company to recover for the death of a child, which was killed by defendant’s train while she was pushing an unlocked push car on an abandoned depot platform, an instruction that defendant was not liable unless the jury found from the preponderance of the evidence that defendant should have anticipated before the day of the accident that deceased or other children would have been attracted to the premises by such push car and would have been injured or killed by a railroad train in playing with such car, was properly refused.</p> <p>13. Negligence, § 110*—when of parents is question for jury. Parents who are poor and unable to procure a nurse to look after their children are not required to keep a constant watch over them, and the want of such care cannot be imputed to the parents, the negligence of the parents in a particular case being a question for the jury.</p> <p>14. Negligence, § 110*—when of parent in care of child not shown. Evidence hedd insufficient to show that a poor coal miner, and his wife, who had to take care of a month-old child, were negligent in permitting their 7-year-old daughter to go on the street and visit an abandoned depot platform 700 feet away, where she was struck by a passing train while playing with an unlocked push car .</p> <p>15. Railroads, § 582*—when death of child by train while playing with push car shown. Evidence held sufficient to sustain a finding that deceased, a child 7 years old, was killed by a passing freight train while playing on an abandoned depot platform with an unlocked push car.</p> <p>16. Appeal and error, § 1410*—when verdict not disturbed. A verdict approved by the trial judge should not be disturbed on appeal unless manifestly against the weight of evidence.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>1. Pabent and child, § 34*—rebuttal of presumption of gratuity of services of member of family. Where services are rendered by one admitted into the family as a relative, the presumption of law is that such services are gratuitous, and that the parties do not contemplate payment of wages therefor, but this presumption may be overcome by proof.</p> <p>2. Pabent and child, § 34*—what proof sufficient to overcome presumption of gratuity of services of member of family. The proof necessary to overcome the presumption, of gratuity of services rendered by one admitted into the family may he either of an express contract, or of a contract established by such facts and circumstances as show that both parties, at the time the services were rendered, contemplated or intended pecuniary recompense other than that which arises naturally out of the family relation.</p> <p>3. Pabent and child, § 66*—when evidence as to brother of child stating that parent had sent for her .is admissible. On a claim by a daughter against the estate of her father for services rendered intestate in his lifetime, evidence that claimant’s brother came to her house and told claimant that her father had sent him after her, while not binding. on the estate to prove that deceased did send for claimant, was competent as tending to show what induced claimant to go to. her father’s home, and might have some bearing on the question whether she expected compensation or not.</p> <p>4. Pabent and child, § 66*—when evidence that parent supported child previous to her entering his home is admissible in action for services. On a claim by a daughter against her father’s estate for services rendered to intestate in his lifetime, evidence that the father for the period of 10 years immediately preceding the time claimant entered his home had supported claimant and her children on his farm, was competent</p> <p>5. Pabent and child, § 66*—when evidence as to division of property by parent is admissible in action for services. On a claim by a daughter against her father’s estate for services rendered intestate, evidence that a few years before his death, and during the alleged term, of service, deceased divided a large sum of money equally among his children, including claimant, was improperly excluded.</p> <p>6. Parent and child, § 68*—when instruction on right of child to recover for services is erroneous. On a claim by a daughter against her father’s estate for services rendered deceased in his lifetime, instructions that when an adult daughter marries and lives separately from her father, the family relation is dissolved and the presumption arising therefrom no longer exists, and when the daughter returns to her father’s home and renders services, she may recover therefor, unless the defense proves that they were rendered as a gratuity, were erroneous.</p> <p>7. Pabent and child—when instruction on bar of claim, for services is improper. On a claim by a daughter against her father’s estate for personal services rendered to- intestate covering a period of 21 years, an instruction that the claim was barred, except for the period of 5 years preceding the death of intestate, was improper, if the compensation, a home, was not payable until the death of deceased.</p> <p>8. Pabent and child—when presumed that note given to child intended as payment on debt not barring claim. On a claim by a daughter against her father’s estate for personal services rendered intestate during a period of 21 years preceding the latter’s death, it must he presumed that a note given claimant within 5 years preceding his death was intended as a payment on his debt for services rendered to him, and hence the statute of limitations was not a bar to the proceedings.</p> <p>9. Frauds, Statute of, § 28*—what oral promise as to property void under. An oral promise by a father to give his daughter his home is void under the Statute of Frauds.</p> <p>10. Pabent and child, § 66*—what evidence admissible to show intention to pay for services of child. Evidence that a father, in his daughePs presence, said that he was going to give her his home for her services as housekeeper and nurse, although relating to a void oral contract, is competent as tending to prove that each party intended that compensation should he paid for the services.</p> <p>11. Pabent and child, § 58*—right of child to recover value of property unconveyed in payment for services. A daughter who renders services to her father under an oral contract by which the latter agrees to make payment by the conveyance of certain property, is entitled to recover the value of the property from the estate of her father, if such conveyance is not made.</p>

<p>1. Schools and school districts, § 184*—necessity of procuring consent of school directors of another district to selection of high school as basis for judgment for tuition. The fact that a school district at whose high- school children from another district attended, supposed that the Act of 1913 (Hurd's Rev. St. ch. 122, § 470, J. & A. f 10143), requiring the consent of the school directors of the home district to the selection of the high school by the parent or guardian, was repealed by the Act of 1915 [Callaghan’s 1916 St. Supp. If 10143(1)], admitting pupils without such approval, is not a basis for a judgment for tuition against the home district, there being no attempted compliance with the Act of 1913.</p> <p>2. Schools and school districts, § 56*—what is not valid approval of selection of high school in another district by directors. Under section 111 of the School Law (J. & A. j[ 10132), providing that no official business shall be transacted by school directors except at a regular or special meeting, there is no valid approval of the selection of a high school in another district by the directors of the home school district, where two of the three directors, not acting at a meeting of the board, separately sign a written approval of the high school.</p> <p>3. Appeal and error, § 1802*—when cause not remanded. A cause will not be remanded, upon reversal, where no presumption arises that the facts will appear other or different on another trial.</p> <p>4. Schools and school districts, § 145*—nonliability for costs. A judgment for costs against a school district is improper.</p>

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

<p>1. Carriers, § 30*—what law governs rights under contract for interstate shipment. The rights and liabilities of a contract for an interstate shipment of grain depend upon the acts of Congress, the bill of lading, and the common-law rules as accepted and applied in federal tribunals.</p> <p>2. Carriers, § 96*—when negligent in accepting shipment. A carrier is guilty of negligence in accepting a shipment when it knows, or ought to know, that it cannot handle the shipment to the destination in a reasonable time.</p> <p>3. Cabbibbs, § 102*—when not relieved of duty to give notice of conditions that may cause delay in delivery. Public knowledge of congested traffic conditions does not relieve the carrier of the duty to give actual notice to the shipper of conditions that may cause delay in delivery.</p> <p>4. Carbiers, § 102*—when negligent in not giving notice of conditions causing delay. A carrier which accepts a shipment of com with knowledge of conditions causing a delay in transit, and gives no notice to the shipper that the com cannot or may not he carried to its destination in time, is guilty of negligence, where the com deteriorates in quality because of a delay in transit, even though the cause of the delay was something beyond its control.</p> <p>5. Carriers, § 102*—what is measure of damages for deterioration of com due to unreasonable delay. The measure of damages applied in actions for negligent injury while a consignment is in transit, which is the difference between the market value of goods at the time and place of delivery in an uninjured condition, and their value in the depreciated condition in which they were delivered, should be applied in an action to recover damages for loss in quality and quantity in corn, alleged to be due to heating and spoiling because of unreasonable delay in transit.</p> <p>6. Carriers, § 107*—when evidence as to grade of corn at point of shipment is inadmissible in action for damages for deterioration due to delay. In an action against a carrier to recover damages for loss in quality of com due to deterioration caused by delay in transit, evidence as to whether the corn raised in the district at the point of shipment the previous year in general graded a fair and average crop and that the crop of such year was one of the poorest the country had produced, was properly excluded, there being no question about the grade of the com at the point of shipment.</p> <p>7. Carriers, § 107*—what evidence as to cause of delay properly excluded. In an action against a carrier to recover damages for loss in quality of corn due to deterioration caused by delay in transit, evidence that congestion in traffic caused the delay was properly excluded.</p> <p>8. Appeal and error, § 1498*—when exclusion of evidence is harmless error. The exclusion of proper evidence is harmless error where the fact sought to be proved is established by other evidence.</p> <p>9. Carriers, § 110*—when exclusion of evidence as to improvement of injured corn by treatment is proper. In an action against a carrier to recover damages for loss in quality of com due to deterioration caused by delay in transit, where it appeared that some of the corn was “rejected” corn, com of the lowest grade, evidence that such com could be made into com of a higher grade at the point of destination was properly excluded.</p> <p>10. Evidence, § 93*—how market price of property determined. The market price of property is ascertained by evidence of what is paid and received for property when sold, if there are enough such transactions to establish a market price.</p> <p>11. Evidence, § 478*-—when fact not proved. A fact cannot be regarded as proved where the evidence merely gives rise to conjecture or suspicion of its existence.</p> <p>12. Carriers, § 106*—when burden on plaintiff to show amount of damage d/ue to delay. The burden of proof to show the amount of damage is on plaintiff, in an action by a shipper against a carrier to recover damages for deterioration in quality of com due to delay in transit.</p> <p>13. Carriers, § 110*—when damages for deterioration due to delay are excessive. A verdict for $2,208,27 against a carrier for deterioration in quality of corn due to delay in transit, held excessive to the extent of $471.53.</p>

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

<p>1. Automobiles and garages, § 2*—what is duty of owner driving automobile towards guest. One riding in an automobile as the guest of the owner is, in a sense, in the custody of such owner, and he must exercise a reasonable degree of care for the safety of his guest.</p> <p>2. Automobiles and garages, § 3*—when negligence of driver in injuring guest is question for jury. Negligence of the driver of an automobile causing injury to an occupant, held to be a question for the jury, where as the result of the blowing-out of a tire the car turned over, although there was no direct evidence as to what caused the blow-out.</p> <p>3. Automobiles and garages, § 3*—when instruction as to requisites of declaration is not erroneous. In an action by the occupant of an automobile against the owner for injuries alleged to have been caused by the latter’s negligent operation of the car, an instruction that an allegation in the declaration that plaintiff was riding in the automobile as a guest of the defendant was a necessary and material part of plaintiff’s case, was not erroneous.</p> <p>4. Automobiles and garages, § 3*—when instruction on failure to prove that plaintiff was guest of driver of car is proper. An Instruction was not erroneous that if the persons riding in an automobile were engaged, at the time of the accident, in a joint enterprise, and each of them had agreed to pay his proportionate share of the expenses of the trip, an allegation that plaintiff, who claimed to have been injured through the negligent operation of the car by defendant, was a guest by the invitation of the defendant, was not sustained and plaintiff could not recover.</p> <p>5. Pleading, § 451*—when charge in declaration taken advantage of in apt time. A charge in the declaration which plaintiff attempted to support by evidence and argument is taken advantage of in apt time by defendant by a request for an instruction thereon.</p> <p>6. Automobiles and garages, § 2*—when occupant of car may not recover for injuries due to negligence of driver on theory of relationship of guest and host. A claim by plaintiff in an action against the owner of an automobile that he was the guest of defendant is not sustained by proof merely that he was a lawful occupant of the car, and he cannot recover for injuries caused by defendant’s negligent operation on the theory of the violation by the host of a duty owed the guest, where the evidence shows that the parties were in fact engaged in a joint enterprise and had agreed to share all the expenses of an automobile trip proportionately.</p> <p>7. Automobiles and garages, § 3*—when evidence as to speed of automobile not improperly excluded. Evidence as to the speed of an automobile was not improperly excluded where it was not clear from the testimony of the witness whether she was competent to judge of, or had any opinion as to the speed of the car at the time of the accident.</p> <p>8. Appeal and error, § 1489*—when exclusion of evidence not reversible error. The striking of a statement of a witness, on direct examination, as to the speed of an automobile was not ground for reversal where opinion as to its speed was brought out on cross-examination.</p>

<p>1. Chabities—when death of inmate transferring property to old people's home necessitates return of property. Contract for admission to an old people’s home under which the applicant was to pay a certain sum in cash and to turn over all of her estate to the home, the applicant to be accepted as an inmate on probation for the period of one year, the contract reciting that it was to be of “binding force only for the period of one year,” but should applicant continue in the home beyond that period, then the contract should be binding during her life, in conjunction with the by-laws of the home authorizing a refusal of final admission at the end of the year or a withdrawal by applicant, and providing for a refund in such cases less a charge for maintenance, construed as requiring a return of the estate so transferred, where the applicant died before the expiration of the period of one year.</p> <p>2. Chabities, § 22*—wh#n contract for admission to'-charitable institution construed against it. Where a eontractjietween a charitable institution and an applicant for admissioiC to the institution was prepared by it, language of the contract,'‘where doubtful and uncertain, will be construed most strongly against it.</p> <p>3. Bills and notes, § 377*—when ownership of note presumed. Possession of a note duly indorsed and delivered by the payee therein named creates a presumption of ownership of the note in the holder, but the presumption may be overcome.</p>

<p>1. Trusts, § 289*—Turn trust in personality may not be terminated. The distribution of a trust estate in personalty cannot be accelerated by the agreement of the parties in esse and the trust created by will thus destroyed.</p> <p>2. Remainders, § 9*—when doctrine of acceleration inapplicable. The doctrine of acceleration of contingent remainders has no application to estates wholly personal.</p> <p>3. Remainders, § 11*—how contingent remainder cannot be destroyed. Where a trust is created in realty, a contingent remainder cannot be destroyed by a conveyance by the life tenant.</p> <p>4. Trusts, § 289*—when trust in personalty may not be terminated by agreement. Under a bequest in trust of the income of personalty until the death or marriage of the beneficiary, the object of the trust is not attained until the occurrence of the contingency provided for, and the interests being contingent the trust cannot be terminated by agreement of the parties.</p> <p>5. Infants, § 6*—when minor not bound by agreement of adult beneficiary attempting to accelerate distribution. A minor who, if he survived the trust period, would be entitled to share in the distribution of the corpus of a trust estate cannot be bound by agreements on the part of the adult beneficiary attempting to accelerate the distribution.</p>

<p>1. Corporations, § 28*—when stockholders Hable as partners to creditors. Stockholders of a corporation which, by reason of failure to file its charter in the recorder’s office is not a corporation de jure, are liable as partners to creditors of the corporation.</p> <p>2. Corporations, § 28*—when creditor of de facto corporation not estopped to enforce contract against stockholders as partners. While persons violating the law in making a contract might be es-topped to deny corporate existence, if sued as a corporation on the contract, a creditor of a de facto corporation seeking to enforce such a contract against the stockholders as partners would not he estopped from doing so by reason of having dealt with the defendants as a corporation.</p> <p>3. Corporations, § 28*—when filing of claim in bankruptcy against de facto corporation not bar to action against stockholders. The filing of a claim in bankruptcy against a de facto corporation is not a bar to an action against the stockholders as partners, where there is no evidence of any hearing or trial of the claim upon the merits or otherwise, and no competent evidence of the final disposition, if any there was, of such claim.</p> <p>4. Bankruptcy—what is not record of judgment on claim. A minute showing the disallowance of a claim by a referee in bankruptcy is not a record of a judgment and is inadmissible in evidence to show the final disposition of the claim.</p>

<p>1. Landlord and tenant, § 43*—when entire saloon lease not invalid as contemplating violation of Sunday law. A provision in a saloon lease giving the lessee the option of terminating the lease on notice “in the event that the State Sunday Closing Law is generally enforced in Chicago” does not render the entire lease invalid as inferentially contemplating the violation of the law against the opening of saloons on Sunday.</p> <p>2. Contracts, § 371*—when inference of illegality cannot be indulged. An inference of illegality cannot be indulged in construing a contract unless such illegality is fairly inferable from the words used in such contract.</p> <p>3. Contracts, § 160*—when party estopped to claim illegality of contract. A party at whose Instance a clause was inserted in a contract which would render it invalid as contemplating a violation of law is partieepe criminis, and is estopped to invoke his own wrong to escape liability thereon.</p> <p>4. Landlord and tenant, § 51*—what evidence inadmissible to vary or alter lease. Evidence of conversations between the lessees and their agent and the lessor at and prior to the execution of the lease is inadmissible to vary, alter, change or amend its provisions.</p> <p>5. Contracts, § 157*—when contract made in violation of law is unenforceable. A contract made in violation of law is void and unenforceable regardless of whether the statute so declares or merely prohibits the thing contracted to be done.</p>

<p>1. Husband and wife, § 264*—when decree for separate maintenance not sustained by evidence. In a proceeding for separate maintenance where the only evidence in the record as to the justifiability of the separation was an affirmative answer to the question, “Have you been living separate and apart from your husband for the last two years without any fault on your part?”, a decree for separate maintenance was not sustained by the evidence, since the testimony constituted a mere conclusion.</p> <p>2. Appeal and ebrob, § 1269*—when presumed findings of chancellor sustained by evidence. Where the certificate of the chancellor does not show that the certificate of evidence contains all the evidence heard by him, it will be presumed that there was sufficient evidence to sustain the findings of the chancellor.</p> <p>3. Husband and wife, § 265*—what is interlocutory decree for separate maintenance. A decree in a separate maintenance proceeding which merely finds the complainant entitled to separate maintenance, postponing for future consideration and determination the amount -which defendant should contribute to her support, is interlocutory merely.</p> <p>4. Husband and wife—when objections that interlocutory order for separate maintenance is not based on evidence should be considered. Where an interlocutory order finding complainant entitled to separate maintenance is entered postponing for future consideration the amount to be paid by defendant, on a subsequent petition to fix the amount to be contributed by defendant it is erroneous to confine the evidence solely to the amount to be paid for separate maintenance and to decline to consider objections that the prior order was not sustained by the evidence.</p> <p>5. Husband and wife, § 258a*-—when refusal to entertain cross-Mil for divorce erroneous. Refusal to entertain a cross-bill for divorce on a petition to fix the amount of separate maintenance, following the entry of an interlocutory decree finding complainant entitled to separate maintenance, is erroneous.</p>

<p>1. Judgment, § 110*—what prerequisite to entering default. It is iuiproper to enter a default against a defendant without first striking his pleas from the files.</p> <p>2. Pleading, § 359*—how sufficiency of pleas tested. The sufficiency of pleas should be tested in the trial court by motion to strike.</p> <p>3. Pleading, § 159*—what considered as equivalent to affidavit of merits hy joint defendants. In an action on the common counts against two defendants supported by an affidavit of claim alleging joint liability for services rendered at their request, a verified plea by one defendant denying joint liability and by the other also denying joint liability and averring a promise by her alone, both defendants joining in a verified plea alleging an agreement with one of the defendants alone to pay the reasonable value of the services, that a reasonable amount had been offered and refused and that such defendant was ready and willing to pay the same and brought same into court for that purpose, may be considered equivalent to an affidavit of merits.</p> <p>4. Pleading, § 232*—discretion of court as to allowing amendments or additional pleas. Where the pleas filed are insufficient, they may be amended or additional pleas filed, within the discretion of the court, upon motion, before default is entered.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Joseph Z. Uhlib, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>1. Divorce, § 68*—when MU attaching decree in foreign State is defective. A bill attacking a decree of divorce rendered in another State, on the ground of false representations, perjury and deception, is defective where it does not contain a copy of the bill of complaint in the foreign court, the answer thereto, the findings of the court and its decree.</p> <p>2. Courts, § 60*—when foreign court presumed to have jurisdiction to render decree. A court, of general jurisdiction of a foreign State is presumed to have jurisdiction to render the decree it pronounces, and its decree should not be held void on the ground that it was deceived and misled, unless the evidence is of such- a satisfactory character as to exclude any other reasonable conclusion.</p> <p>3. ' Judgment, § 454*—when question of jurisdiction res adjudicata. Where the question of jurisdiction is raised in proceedings in the courts of another State and there adjudicated, such decision becomes res adjudicata of the question.</p> <p>4. Divorce, § 68*—when foreign decree conclusive on questions of residence and jurisdiction. Where the questions of residence of the complainant in a divorce proceeding in another State and the jurisdiction of the court over grounds of divorce based on acts committed outside the State were presented to such court and determined by it, its decision is res adjudicate, in a proceeding for separate maintenance in this State attacking the validity of the foreign decree.</p>

<p>1. Landlord and tenant, § 262*—what does not constitute constructive eviction. A constructive eviction must be something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises, and hence an eviction cannot be claimed where it is clearly proved that the landlord employed extraordinary and unusual efforts to prevent the conditions claimed to constitute an eviction.</p> <p>2. Contracts, § 303*—when promisor discharged from performance. The performance of a contract is excused where there is subsequent inability of performance by some act of or under the authority of the government, in which case the promisor is discharged.</p> <p>3. Landlord and tenant, § 264*—when failure to furnish power not constructive eviction. A constructive eviction by a landlord cannot be predicated upon failure to furnish power in accordance with the requirements Of the lease, where such failure was due to the landlord’s inability to obtain fuel, due to extraordinary snowfall, preventing delivery and the orders of the United States Fuel Administrator regulating distribution of coal.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, 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. Oscab Hebel, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.</p>

<p>Banks and banking, § 85*—when special deposit created which is binding on bank. A special deposit, with directions to apply same in payment of two checks, is created, which the bank, in accepting, is in duty bound to obey, where, upon presentation of such checks and discovery of insufficient funds to pay both, it is expressly agreed between the bank and depositor that if she will deposit a sufficient amount to meet said checks before one o’clock of the day of presentation the balance then on deposit, together with the additional deposit, will be applied to pay such check's, and such special deposit includes not only the amount deposited pursuant to the agreement on such day, but also the balance already on deposit.</p>

<p>1. Landlord and tenant—when duty of landlord to relet vacated premises in order to minimize. A landlord is under the duty to use reasonable diligence to relet an apartment in order to minimize the damages of the lessee, where the latter fails to give notice of his intention to vacate the premises prior to 60 days before the expiration of his term and the lease is thus automatically extended for a like term, pursuant to the terms of the lease, but, after notice by the tenant within the 60-day period, of his intention to vacate at the end of the term and before actual vacation of the premises, the landlord re-enters the premises and posts a sign indicating that the apartment is for rent.</p> <p>2. Landlord and tenant—when evidence as to landlord’s refusal to relet premises erroneously excluded. In an action by a landlord against a tenant to recover for rent for the portion of a second term that an apartment was unoccupied, after breach by the tenant of provisions of the lease making him liable for rent for the second term, due to failure to give timely notice of intention to vacate before the expiration of the first term, evidence that the landlord re-entered the apartment for the purpose of re-letting it before actual abandonment by the tenant, but after latter’s declaration of intention to vacate at expiration of the term, and that thereafter the landlord refused to rent the premises for a lesser sum to suitable prospective tenants, was erroneously excluded.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, 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 Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding.. Heard in the Branch Appellate Court at the March term, 1918.</p>

<p>1. Infants, § 41*—when satisfaction of judgment by guardian ad litem binding. The satisfaction, in open court, of a judgment in favor of a minor, by payment to his fathér, as guardian ad litem, of the amount of such judgment, has all the qualities of a judgment at law and is binding on the minor.</p> <p>2. Appeal and bbbob, § 21*—when writ of error proper. Any error in the satisfaction, in open court, of a judgment in favor of a minor, by his guardian ad litem, can be corrected by appeal or writ of error.</p> <p>3. Judgment—when equity will not set aside satisfaction of judgment in favor of minor because of existence of adequate remedy at law. Equity will not interfere and set aside a satisfaction, in open court, by the guardian ad litem of a minor, of a judgment in the latter’s favor, where an appropriate remedy at law by appeal or writ of error exists because the time limited by J. & A. f 8654, providing that the period of infancy shall be excluded from computation of the 3-year period for prosecution of a writ of error, has not expired.</p> <p>4. Equity, § 139*—when bill insufficient. A bill in equity which fails to offer to do equity is defective.</p> <p>5. Judgment, § 306*—when equity jurisdiction to set aside. A court of equity has jurisdiction to set aside a judgment at law upon proper showing.</p> <p>6. Judgment—when bill to set aside satisfaction of judgment insufficient. A bill to set aside a satisfaction, in open court, by a guardian ad litem of a minor, of a judgment in the latter’s favor, held insufficient.</p>

<p>1. Bills and notes, § 12*—what promises must not he included in notes. Under section 5 of the Negotiable Instruments Act (J. & A. V 7644), relating to the requirements as to negotiable instruments, other promises than to pay money except as therein provided must not be included, and section 3 (J. & A. If 7642), providing that a statement of the transaction which gives rise to the instrument may appear thereon without destroying its negotiable character, does not conflict with or control section 5.</p> <p>2. Biles and notes, § 12*—what not promissory note. An instrument calling for the payment of money, but designated as a subscription, and signed by the maker, and by which the maker acknowledges a subscription for a scholarship in a certain school, promises to meet certain requirements as to studying, and agrees that the delivery to him of the scholarship, which is a separate document, but was executed at the same time as such instrument, constitutes the acceptance of the subscription, and that the subscription is not subject to cancellation, and containing pictures tending to mislead the signer as to the character of the instrument, is not a promissory note but a special contract.</p>

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

Appeals from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied; order for writ of prohibition set aside; leave to file petition for removal of receivers and their counsel denied.

<p>Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1918.</p>

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

<p>1. Commerce, § 4*—what constitutes interstate within Federal Employers’ Liability Act. A brakeman employed by a railway terminal company, while engaged in coupling one of its engines to an observation car which was being used in interstate commerce, and was owned by a carrier, engaged in such commerce, which was a lessee of the terminal company, was engaged in interstate commerce so as to bring a suit by him against the terminal company, for injuries received while so engaged, within the provisions of the Federal Employers’ Liability Act.</p> <p>2. Master and servant, § 715*—coupling of couplers automatically on impact as jury question. Whether couplers upon cars were automatic and would couple on impact so as to be in compliance with the Federal Safety Appliance Act, was a question for the jury.</p> <p>3. Master and servant, § 302a*—when doctrine of assumed rislc not invocable. The doctrine of assumed risk is not invocable in an action within the Federal Safety Appliance Act.</p> <p>4. Master and servant, § 739*—when effect of attempt to couple cars on curved trach is question for jury. The effect of a brakeman’s attempting to couple cars on a curved track upon his right to recover for injuries received in making a coupling is for the jury, in a case where the doctrine of assumed risk may be invoked.</p> <p>5. Master and servant, § 98*—when common law of State applies to negligence in action under Federal Employers’ Liability Act. As the Federal Employers’ Liability Act does not define the character or degree of negligence necessary to a recovery, and as there is no federal common law, the common law of the State will prevail on those matters, in an action under that act.</p> <p>6. Master and servant, § 98*—what is sufficient as common-law count charging negligence in action under Federal Employers’ Liability Act. In an action by a brakeman for injuries received while attempting to couple cars, a count, based upon the Federal Employers’ Liability Act, charging failure to furnish plaintiff with a safe place to work, that defendant’s foreman and conductor, knowing the danger of attempting to make a coupling on a curved track, failed to notify plaintiff of such danger though it was unknown to him, was sufficient as a common-law count under the law of this State.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Joseph Z. Uhhb, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>1. Gifts, § 22*—when mental capacity of donor and absence of undue influence shown. Evidence in a suit to set aside gifts of personal property, examined and held to show that the donor was, at the time of the gift to her niece, compos mentis and that no undue influence or artifice was resorted to, to persuade her to make the gift.</p> <p>2. Gifts, § 27*—when inference against gift not indulged because of devising clause of will covering personalty. Where it appeared that, subsequent to a gift of her personal property to her niece, deceased executed a will in which she devised both real and personal property, and it also appeared that the lawyer who advised deceased in making the gift also drew the will, the court will presume that, in including a devise of personal property in the will, he was merely acting in an abundance of caution sb that deceased should not die intestate as to any property in case she possessed personalty not included in the prior gift, and no inference against the gift will be indulged because of the devising clause in the will.</p> <p>3. Gifts, § 23*—when gift not revoked by subsequent will. A will made subsequent to a gift either causa mortis or inter vivos does not necessarily operate to revoke such gifts.</p> <p>4. Gifts, § 8*—what is sufficient delivery of money in bank. There was a sufficient delivery of money in a bank to sustain a gift causa mortis, where it was transferred and came into the possession of the donee before the donor’s death.</p> <p>- 5. Gifts, § 8*—what is sufficient delivery of mortgages, notes, etc., in safe deposit box. Property, consisting of mortgages, notes, etc., kept by the owner in a safe deposit box, was delivered, so as to effect a gift causa mortis, where the owner gave the donee a power of attorney and the key and the donee thereby obtained access to the box, took possession of the property and placed it in her own safe deposit box before the death of the donor.</p> <p>6. Gifts, § 28*—when declarations of donor admissible. Declarations of a donor regarding the fact of gifts of property causa mortis were properly received in evidence, as confirmatory of the gifts, in an action to set them aside.</p> <p>7. Gifts, § 1*—what constitutes gift inter vivos. A gift of personal property made in view of the donor’s death and accompanied by actual delivery, though not sustainable as a gift causa mortis, because not made to take effect only in event of the donor’s death by her existing disorder, may be sustained as a gift inter vivos.</p>

<p>1. Appeal and ebkob, § 273*—what is an interlocutory, unappealable order. Where a certificate of evidence in a proceeding in which an attorney sought to recover his fee was delivered to him for examination and stolen while in his possession, an order by the court requiring him to produce a copy of such certificate was interlocutory and not appealable.</p> <p>2. Appeal and ebkob, § 393*—when appeal lies from imposition of fine or imprisonment for contempt. While an interlocutory order is not appealable the one to whom it is directed may refuse to obey it and, upon the imposition of a fine or imprisonment for contempt, may then prosecute an appeal.</p>

<p>1. Mtjnicipai. corporations, § 938*—what constitutes exercise of ministerial function. The maintenance and operation by a city of police and fire alarm wires is the exercise of a ministerial not a governmental function.</p> <p>2. Master and servant, § 123*—duty of a city to furnish employee safe place to work. A city, being liable to respond in damages for its negligence when acting in a ministerial capacity, is obliged to furnish its employees a safe place to work the same as other employers of skilled or unskilled labor.</p> <p>3. Master and servant, § 140*—when city Tmeman not given safe place to work. A city lineman engaged in repairing police and fire alarm wires, in a place where he was required to walk upon an insufficiently insulated feed wire of an electric railway company, was not furnished by the city with a safe place to work.</p> <p>4. Master and servant, § 363*—what risks assumed by workman. A workman is bound to assume only those risks which are open and obvious, so that he may be able to apprise himself, in the exercise of reasonable care, of the existence of the risk and the danger arising therefrom.</p> <p>5. Master and servant, § 304*—what risks not assumed by employee. A workman does not assume risks which are unusual, extraordinary or extrinsic to his employment, nor risks arising from the negligence of his employer.</p> <p>6. Master and servant—what risk not assumed by city lineman repairing police and fire alarm wires. A city lineman engaged in repairing police and fire alarm wires, which were strung on poles belonging to an electric railway company, did not assume the risk arising from an insufficiently insulated feed wire, belonging to the railway company, upon which he had to walk in the discharge of his duties.</p> <p>7. Death, § 36*—when declaration shows commencement of action for negligent death in one year. When the declaration in an action for negligent death averred the death of decedent on. September 22, 1910, and the record showed that suit was commenced and summons issued August 30, 1911, the fact that suit was commenced within one year affirmatively appears upon the record, and a motion in arrest of judgment, because the declaration did not contain an averment that the action was commenced within one year after the death, was properly overruled.</p> <p>8. Pleading, § 451*—how variance may be taken advantage of. Under a declaration for the wrongful death of a lineman, which averred that decedent came to his death primarily by being electrically shocked through insufficient insulation of a feed wire upon which he stood, if the evidence showed that he was not electrically shocked, but fell to the ground by having lost his balance, or from any other cause than the one averred, that would constitute a variance which, to be availed of, required defendant to move either for an instructed verdict or a new trial upon that ground.</p> <p>9. Death, § 506*—when evidence sufficient to support verdict in action for wrongful death. In an action for wrongful death of a lineman, where the declaration averred that his death was caused primarily by an electric shock which, though perhaps insufficient to cause death directly, did cause deceased to lose his hold and fall, breaking his neck, while defendant contended that he was not shocked but lost his grip and fell, and there was a conflict in the evidence and proof sufficient to support either theory, the court cannot say. that a verdict for plaintiff was not supported by the evidence.</p>

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

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

<p>1. Mechanics’ liens, § 68*—when subcontractors' liens not defeated by failure to serve notice thereof. As a subcontractor’s lien is based upon the original contract and his rights and those of the original contractor attach at the same time, under the provisions of sections 1 and 21 of the Mechanics’ Liens Act (Callaghan’s 1916 St. Supp. Iff 7139, 7159), failure of subcontractors to serve their notices upon the owners prior to the adjudication of the general contractors in bankruptcy will not defeat their liens.</p> <p>2. Mechanics’ liens, § 61*—when lien of subcontractor becomes effective. Although a lien claimant has only an inchoate or incipient lien which may be lost until the statutory requirements have been observed, when he has complied with such requirements the lien ripens into a valid claim, attaching as of the date the contract was made by the original contractor.</p> <p>3. Bankruptcy, § 18*—what is effect of bankruptcy proceedings upon subcontractors’ liens. As a subcontractor’s lien attaches as of the date of the original contract, where the original contract was made long prior to the filing of a petition in bankruptcy by the original contractors, the subsequently perfected liens of subcontractors could not, under section 21 of the Mechanics’ Liens Act (J. & A. f 7159), be defeated or barred by the bankruptcy.</p> <p>4. Mechanics’ mens, § 89*—when payments by owners to contractors wrongful. Where original contractors did not furnish nor the owners require statements showing the amounts due to subcontractors, as provided for by section 5 of the Mechanics' Liens Act (J. & A. If 7143), all payments on behalf of the owners to the original contractors were wrongful, and the master correctly found that in legal effect there was still a fund in the hands of the owners subject to the subcontractors’ liens.</p> <p>5. Mechanics’ mens, § 128*—when subcontractors’ liens have priority over unrecorded prior mortgages. Subcontractors’ liens which attached on a certain date were prior to the liens of trust deeds executed before that date, but which were not recorded and under which no money was furnished until a later date.</p> <p>6. Mechanics’ mens, § 212*—who is not party to proceedings for enforcement of subcontractors’ liens and may not appeal. One who, pending proceedings for the enforcement of subcontractors’ liens, loans money upon receiver’s certificates to complete the building, which amount, in the final decree, was ordered to be a first lien subject to the subcontractors’ liens, was not a party, nor was he an appellee entitled to assign cross errors, under Practice Act, ch. 110, sec. 107 (J. & A. j[ 8644), and his right to appeal is doubtful.</p> <p>7. Receivers, § 21*—when may not borrow money. There is no authority for permitting a receiver for original contractors, in the case of private property, to borrow money to complete the improvement, and decreeing the amount borrowed to be a lien prior to all other claims.</p> <p>8. Bills and notes, § 259*—when purchaser for value without notice protected. The claim of want of consideration, made by the owners of premises as to trust deeds and notes given to contractors to pay the balance due on the contract price for the erection of a building, cannot affect the rights of one who, from the undisputed testimony, appears to have been a purchaser for value without notice.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>1. Judgment, § 273*—what errors may be corrected by motion. Only errors of fact not apparent upon the face of the record, and such facts as it would he presumed if the court had cognizance of it would not have rendered the judgment, may he corrected by motion under Hurd’s Rev. St. ch. 110, sec. 89 (J. & A. If 8626).</p> <p>2. Judgment, § 273*—when order of dismissal for want of prosecution may be set aside on motion. An order of dismissal of a case for' want of prosecution may he set aside upon written motion, under Hurd’s Rev. St. ch. 110, see. 89 (J. & A. If 8626), relating to correction of errors of fact, where the plaintiff was dead and such fact had not been suggested of record.</p> <p>3. Judgment, § 272*—necessity that motion for correction of errors in fact be in writing. The motion for correction of errors of fact pursuant to Hurd’s Rev. St. ch. 110, sec. 89 (J. & A. If 8626), must be in writing.</p>

<p>1. Husband and wife, § 217*—what must be shown to maintain bill for separate maintenance. To maintain a bill for separate maintenance the complainant must show good cause for living separate and apart from her husband.</p> <p>2. Husband and wife, § 217*—what constitutes good cause for wife living apart from husband. Good cause for a wife living apart from her husband, as affording a basis for a bill for separate maintenance, must be conduct on his part as will directly endanger her life, person or health, or such a course of conduct towards her which will necessarily and inevitably render her life miserable, and living as his wife unendurable.</p> <p>3. Husband and wife, § 217*—when separation of wife from husband not without her fault. If a wife leaves her husband voluntarily, or by consent, or if her misconduct has materially induced the course of action on the part of the husband upon which she relies as justifying the separation, it is not without her fault.</p> <p>4. Husband and wife, § 264*—when decree for separate maintenance unsupported by evidence. Evidence held insufficient to warrant a decree for separate maintenance.</p> <p>5. Husband and wife, § 217*—what insufficient grounds for decree of separate maintenance. Dissatisfaction of the wife alone with married life or with the husband, and the opportunity to better herself financially, are not sufficient grounds for a decree of separate maintenance.</p>

<p>Indemnity, § 11*—what is not action for injuries accidentally suffered within indemnity policy. An action brought against a hotel company for damages for a wilful and malicious assaulting and beating of a person is not within the terms of an indemnity policy by which the insurer agrees to indemnify the company •against losses “respecting bodily injuries * * * accidentally suffered * * * by any person” and service was to be rendered in defending any suit “brought to recover damages on account of such cases of bodily injuries.”</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Wells Mi Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Criminal Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.</p>

<p>1. Attachment, § 44*—when fraudulent concealment of property urith intent to hinder and delay creditors is shown. In an action of attachment against a husband and wife, evidence held sufficient to show that defendants left their former home in another State and came to Illinois surreptitiously and concealed their whereabouts, and undertook fraudulently to conceal their property or effects, so as to hinder and delay their creditors.</p> <p>2. Husband and wife, § 8*—when joint liability shown for goods purchased. Evidence held sufficient to show joint liability of husband and wife for an indebtedness for goods purchased by the wife on credit.</p> <p>3. Account stated, § 3*—when amount of account liquidated. The amount of an account was liquidated where the amount of each item was specified, and it was stated what each was for and the date given and it was only necessary to add them up to ascertain the total amount.</p> <p>4. Appeal and erbob, § 1421*—when judgment not disturbed. The maxim de minimis non curat lex applies, in an attachment suit against a husband and wife to recover the sum of $107.85, where a mistake of $1 in addition was made and there were two items amounting to $1.80 that could not be made part of the jud& ment.</p>

<p>Automobiles and garages, § 5*—when garage keeper not entitled to lien on car and may not replevin it. Under the Act of June 21, 1917, sec. 3a, relating to liens by garage keepers upon motor vehicles “kept by them” for charges for keeping and repairs, and section 3b, providing for replevin of motor vehicles, upon which garage keepers acquire liens, anywhere within the jurisdiction of the court, garage keepers are not entitled to a lien for charges where they have voluntarily allowed the owner to taire his car away, and may not maintain an action of replevin to recover possession thereof.</p>

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

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

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

<p>Appeal from the County Court of Cook county; the Hon. John H. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.</p>

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

<p>1. Municipal Court of Chicago, § 26*—when original stenographic report stricken from files. The original stenographic report having been filed in lieu of a copy thereof, without the requisite stipulation authorizing such procedure, it will be stricken from the files on motion of appellee.</p> <p>2. Municipal Court of Chicago, § 31*—when judgment affirmed. The stenographic report, filed as part of the record upon appeal from the Municipal Court, having been stricken from the files on motion of appellee, and the common-law record presenting no question to the court, the judgment will be affirmed.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.</p> <p>Statement by the Court, The declaration is on the common counts for money had and received. Defendants filed the plea of general issue and a special plea of payment. On joinder of issues the case was tried without a jury and the court’s finding and judgment were against plaintiff who has appealed.</p> <p>The facts are undisputed and as follows: In 1913 and 1914, both plaintiff and defendants had offices in Chicago. Defendants were underwriting the sale of mortgage bonds of the Grand Bapids & Northwestern Railroad Company, on the basis that $1,000 of the bonds would carry $500 of the company’s fully paid common capital stock. Plaintiff was a practicing lawyer and employed as an assistant attorney in the offices of a law firm to whose business he devoted practically his entire time, having very little business of his own. The stationery used in his private matters and his correspondence with defendants on the subject of the contract hereinafter referred to, gave his address at the offices of said firm.</p> <p>In the year 1913 he entered into a subscription contract with defendants agreeing to pay them or the railroad company $5,000 in instalments whereby he would become entitled to a certain number of the railroad’s mortgage bonds and accompanying stock as aforesaid on paying the last instalment. On April 8, 1914, he received a letter from defendants, mailed and addressed to his office, notifying him that the first instalment would be payable on April 15, 19.14. On that date he sent defendants his check for $1,750 (which was in excess of the instalment due), and for which he received a receipt crediting such payment on his subscription account. The check was cashed April 17, 1914.</p> <p>From May 28 to July 2, 1914, he was continuously absent from his office and confined to his house on account of illness. While he was so confined an intimate friend took it upon himself, without plaintiff’s request, to go over to plaintiff’s office about once a week and gather up the mail he found on his desk and take it to Tiim- On plaintiff’s return to the office July 2nd, he found in a drawer of his desk a package of mail (supposed to be one delivery), in which was a letter from defendants addressed to him at his office dated June 1, 1914, and reading as follows:</p> <p>“Owing to the inability of the Executive Committee of the Grand Rapids & Northwestern Railroad to definitely approve and ratify the construction contracts, etc., by June 1, 1914, your first instalment is herewith returned to you, accompanied by our check with interest at five per cent.</p> <p>“The Board of Directors expect to have a meeting in the near future to determine what future action should be taken with reference to the project.</p> <p>Very truly yours,</p> <p>8. M. Barling & Company.”</p> <p>The letter contained two certified checks of the same date payable to his order and drawn on the La Salle Street Trust & 'Savings Bank, one for $1,750 and the other for accrued interest thereon. The bank on which they were drawn became insolvent on June 12, 1914, up to which time it was honoring checks drawn thereon, and after which it remained insolvent and in the hands of a receiver. Plaintiff indorsed the checks and sent a messenger to his bank to deposit them, and because of the insolvency of the bank on which they were drawn his bank did not accept them for deposit. When the messenger returned with them plaintiff observed for the first time that they were drawn on the insolvent bank. On July 7th he wrote defendants advising them that on account of his illness he did not get their letter containing the checks until July 2nd, and a few days later had a personal interview with one of defendants’ firm respecting their liability, and offered to return the checks. Defendants did not answer his letters, refused to receive the checks and disclaimed liability.</p> <p>Plaintiff always stood ready to perform1 his part of the contract, and had no notice of its abrogation until he read said letter on July 2nd. The contract contained no provision implying a right to abrogate it or that would lead plaintiff reasonably to expect or anticipate such abrogation or a return of his money.</p> <p>It was not shown when or how the letter containing the checks was placed in the drawer of plaintiff’s desk, but he testified that he supposed it was put there by the firm’s office boy, and it was presumably left at the office by the mail carrier in the due course of mail about June 2nd. Plaintiff had no employees in the office but occasionally made use of the firm’s.</p>

<p>1. Husband and wife, § 264*—when cruelty shown in suit for separate maintenance. On a bill for separate maintenance without waiving answer under oath and answer denying cruelty, testimony of the complainant concerning her husband’s infatuation for another woman, that he forcibly ejected the complainant from his saloon, corroborated by the husband’s bartender, and her testimony that her husband blackened her eye, corroborated only as to her subsequent appearance, is sufficient to establish cruelty in the absence of contradictory testimony.</p> <p>2. Marriage, §. 13*—when common-law shown. Undisputed evidence of open cohabitation as man and wife for 12 years, including 2 years spent with the husband’s parents, that the wife was active and energetic in helping the husband to build his fortune, that husband and wife joined as such in the execution of deeds and mortgages, with testimony by the wife of a common-law contract in the presence of witnesses, contradicted by the husband, held sufficient to show a common-law marriage.</p> <p>3. Husband and wife, § 257*—what need not he pleaded in answer to hill for separate maintenance. A defendant in a suit for separate maintenance may show a previous marriage of the complainant on cross-examination without pleading it in his answer.</p> <p>4. Death, § 2*—when presumption of raised from absence. In a suit for separate maintenance, testimony by the wife that her previous husband left her in St. Louis 8 years before her present common-law marriage, and that she never heard" of him after that, is sufficient to establish capacity for the second marriage under the Missouri statute, raising a presumption of death upon 7 years’ absence.</p> <p>5. Marriage, § 26*—when not shown to be invalid because of existence of living, undivorced husband. In a suit for separate maintenance, testimony of the defendant’s witnesses identifying the complainant’s previous husband as a present resident in Illinois, with a wife and several grown children, will not render the second marriage invalid as it is presumed that the former husband obtained a divorce or that the identity is mistaken and the presumption of death has attached.</p> <p>6. Husband and wife, § 267*—when decree fixing alimony and solicitor’s fees improver on appeal. The Appellate Court cannot enter a decree fixing alimony and solicitor’s fees on reversing a decree dismissing a bill for separate maintenance for want of equity.</p>

<p>Error to the Circuit Court of Marion county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the March term, 1918.</p>

<p>Appeal from the Circuit Court of Alexander county; the Hon. William N. Butleb, Judge, presiding. Heard in this court at the October term, 1918.</p>

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

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

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

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

<p>Error to the Circuit Court of Fayette county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1918.</p>

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

<p>Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Error to the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Appeal from the Circuit Court of Hamilton county; the Him. Julius C. Keen, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>1. Judgment, § 45*—when confession of against one maker only improper. A power of attorney authorizing a joint judgment by confession against the makers of a promissory note does not empower a confession of judgment against one maker only.</p> <p>2. Judgment, § 58*—what shows meritorious defense warranting vacation of by confession on note. An affidavit that a promissory note had been paid, supported by an indorsement on the note to that effect, is sufficient to show a meritorious defense requiring the setting aside of a judgment by confession.</p> <p>3. Judgment, § 56*—when by confession on note should be set aside. A judgment by confession obtained on a judgment note authorizing judgment by confession in favor of a legal holder should be set aside on affidavit that the plaintiff is not the legal holder, where the note itself shows no indorsement by the payee.</p>

<p>1. Banks and banking, § 148*—when title to money obtained by forgery passes. Title to money obtained by forgery of a check passes by mere delivery if made in good faith and for value.</p> <p>2. Banks and banking, § 148*—when bank paying out money on forged check is not entitled to follow it and recover it from another bank. A bank paying out money upon a forged check is not entitled to follow it and obtain it from another bank which has had the forger arrested for a previous forgery and obtained full satisfaction of its claim from him, although the defendant had great cause’ to suspect that the money was obtained from the plaintiff by fraud, where due inquiry failed to discover the fraud and the plaintiff bank itself did not know of the forgery until after the money was received by the defendant.</p> <p>3. Banks and banking, § 148*—when money is received by bank from forger of check in due course of business. Money received by a bank cashier from a forger to reimburse the bank for a previous forgery, although received after banking hours and in the jail, is still received in due course of business so as to pass title to the recipient in good faith and for consideration.</p> <p>4. Banks and banking, § 148*—when defrauded bank follouñng money obtained by forgery may not recover from another bank amount paid to trace forger. A defrauded bank in attempting to follow and recover money obtained by forgery cannot recover a small amount paid by the forger to another bank to cover its expense of tracing him on another forgery, where the amount of said expenses was agreed between the forger and the defendant bank which took without actual notice of the taint attached to the money.</p>

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

<p>Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>1. Pleading, § 432*—what is effect of videlicet on proof of death. In an action on a mutual benefit certificate based on the presumption of death after 7 years’ absence, the date of death being laid under a videlicet, permits proof of death at any time.</p> <p>2. Death, § 2*—when presumed. The presumption of death arising from 7 years’ absence is sufficient to support recovery on a mutual benefit certificate.</p> <p>3. Instructions, § 118*—when instruction on presumption of death erroneous because not based on evidence. In an action on a mutual benefit certificate based on the presumption of death after 7 years’ absence, it is erroneous to instruct that the presumption of death does not arise if there were reasons why the insurer did not want his relatives to know his whereabouts, where there is no substantial evidence in support of such theory.</p> <p>4. Death, § 2*—when erroneous to require jury to find whether person is in fact dead. In an action on a mutual benefit certificate based on the presumption of death after 7 years’ absence, it is erroneous to instruct the jury to determine whether the insurer “was in fact dead.”</p> <p>5. Courts, § 152*—when decision relating to instruction not authority. A decision affirming a judgment for the plaintiff is not authority in support of an instruction given at the request of the defendant and referred to in the opinion merely to show how favorable the instructions were to the defendant.</p> <p>6. Death—when instruction relating to presumption of is erroneous. In an action on a benefit certificate based on the presumption of death after 7 years’ absence, it is erroneous to instruct that the mere fact of the disappearance of the insured had nothing to do with the question.</p> <p>7. Trial, § 270*—requisites of special interrogatories. Special interrogatories must be based on the evidence and relate to a material fact.</p>

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

<p>1. Aliens, § 9*—right to sue. Right of an alien enemy to sue in the courts of this country during war time discussed, but not decided.</p> <p>2. Evidence—what judicially noticed. Courts will take judicial notice of the President’s proclamation fixing the status of alien enemies.</p> <p>3. Evidence—what judicially noticed. Courts will take judicial notice that the United States Government has an alien property ' custodian.</p> <p>4. TbtaTi, § 64*—when motion to withdraw juror and continue case too late. A motion to withdraw a juror and continue a case until after the war, on the ground that the plaintiff is an alien enemy, comes too late after plea in bar and the close of the plaintiff’s case, where there is no showing of diligence.</p> <p>5. Aliens, § 9*—prosecution of case to judgment and staying of execution until after war. On motion to withdraw a juror and continue the case on the ground that the plaintiff is an alien enemy, after the plaintiff has put in his case, the court might let the case proceed to judgment and stay its collection until after the war.</p> <p>6. Depositions, § 22*—when of foreign witnesses may not he harred. In an action in Illinois for personal injuries received in another State, the plaintiff cannot bar depositions of foreign witnesses by producing the witnesses in court.</p> <p>7. Witnesses, § 206*—when cross-examination ■ of improper. In an action in Illinois for personal injuries received in another State, the defendant having introduced depositions of foreign witnesses, the plaintiff has no right to cross-examine these same witnesses, whom he has produced in court.</p> <p>8. Witnesses, § 224*—what is proper cross-examination of witness testifying as to finding of heel of shoe near railroad crossing. A witness in an action against a railroad company for personal injuries having testified that he found the heel of a shoe near the crossing, may be asked on cross-examination if he did not tell others that he picked it up near where the plaintiff was lying, a considerable distance from the crossing.</p> <p>9. Appeal and erbob, § 1241*—when party may not complain of instructions. A party cannot be heard to complain of an instruction because of the same language which he has embodied in his own instructions.</p> <p>10. Instructions, § 98*—when instruction relating to interest of party properly refused. An instruction having been given concerning the interest or lack of interest of the witnesses in general, it is not error to refuse an instruction authorizing the jury to consider the interest of the plaintiff in weighing his testimony.</p> <p>11. Railroads, § 697*—what constitutes variance in action for injuries received at grade crossing. In an action against a railroad company for personal injuries received at a grade crossing, plaintiff cannot recover on evidence showing that the accident occurred while he was walking on the right of way some distance from the crossing.</p> <p>12. New trial, § 51*—what not covered by objection in motion for, that verdict is against evidence. An objection in a motion for a new trial that the verdict is against the evidence, applies only to the general verdict and not to answers to special interrogatories; such special findings not having been included as ground for new trial cannot be assigned as error on appeal.</p> <p>13. Railroads, § 738*—when contributory negligence in passing over tracks at crossing is shown. Evidence reviewed and held to indicate that the plaintiff, in an action for damages for personal injuries received in a railroad grade crossing accident, proceeded carelessly across the tracks after one train had passed without looking for other approaching trains.</p>

<p>1. Negligence, § 128*—when failure to negative contributory negligence at time of accident cured by verdict. The failure of the plaintiff, in an action against a railroad company for wrongful death, to allege absence of contributory negligence at the moment of the accident, without demurrer by the defendant, is cured by verdict for the plaintiff.</p> <p>2. Negligence, § 226*—when instruction on ordinary care is erroneous. In an action against a railroad company for wrongful death, it is erroneous to instruct that the deceased exercised ordinary care if she exercised due care at the time of her death, without requiring due care in approaching the place of danger.</p> <p>3. Appeal and ebrob, § 1544*—when instruction on contributory negligence not prejudicially erroneous. In an action for wrongful death, an erroneous instruction requiring due care at the time of death, but failing to require due care in approaching the place of danger, is not prejudicial where not directing a verdict and the true rule is subsequently stated in another instruction.</p> <p>4. Negligence, § 109*—when necessary that parents of child exercise due care. In an action for wrongful death of a 16-year-old girl while accompanied by her parents, if the deceased is treated as a child as to the care required of her, then it is necessary that her parents should have been in the exercise of due care.</p> <p>5. Railboads—when instruction should state as to when person .is lawfully on tracks. In an action for wrongful death of a person crossing railroad tracks, it is improper to submit the question of law as to whether the deceased was lawfully upon the tracks, without explaining and instructing the jury as to what would be lawful.</p> <p>6. Railboads, § 593*—when instruction on presumption of negligence from violation of speed regulation is erroneous. In an action for wrongful death of a person crossing railroad tracks, it is erroneous to instruct that the law presumes death was caused by the company’s negligence, if the train was exceeding the speed limit, where the evidence is conflicting as to the question of the deceased’s right to be on the tracks.</p> <p>7. Railroads, § 527*—what care required to not injure prospective passengers crossing tracks. The doctrine that a railroad company owes no duty to a licensee upon its right of way except to use due care to avoid injury after his presence is known is modified in relation to prospective passengers passing over the tracks to the station.</p> <p>8. Raieboads, § 593*—when instruction as to extent of duty of engineer as to control of engine is erroneous. In an action for death of a prospective passenger, killed while passing across the tracks to the depot, it is erroneous to instruct that it was the engineer’s duty to keep his train under control at such places so as to avoid injury to persons passing over the tracks, as this makes the railroad company an insurer.</p>

<p>1. Appeal and ebbob, § 801*—u>hat must he contained in hill of exceptions. A plea, notice of special matter, and affidavit of claim in an action of assumpsit, stricken from the files, are not a part of the record and not before the Appellate Court for review unless shown by the bill of exceptions.</p> <p>2. Appeal and ebrob, § 1306*—when presumed that court’s ruling on motion justified. Unless a motion, the showing made, and the court’s ruling, are preserved by the bill of exceptions, it will he conclusively presumed that the court’s action was justified.</p> <p>3. Attorney and client, § 132*—what declaration in action for services need not show. In assumpsit for legal services, the declaration need not contain an averment that the plaintiff has been licensed to practice law.</p> <p>4. Appeal and ebbob, § 365*—what may not he first raised on appeal. In assumpsit for legal services, the question of the plaintiff’s license to practice law cannot he successfully raised first on appeal.</p> <p>5. Attorney and client, § 133*—presumption as to existence of license. In assumpsit for legal services, a license to practice law is presumed at least until the question is raised in the trial court.</p> <p>6. Evidence—what judicially noticed. The trial court may take judicial notice that an attorney suing for the value of legal services is licensed to practice law in Illinois.</p> <p>7. Appeal and ebrob, § 1034*—what judicially noticed. The Appellate Court may take judicial notice that an attorney, suing for the value of legal services, appeared in appellate litigation for defendant in both Appellate and Supreme Court.</p> <p>8. Attorney and client, § 135*—what constitutes evidence of rendition of services. In assumpsit for value of legal services, it appearing that the plaintiff had previously appeared for the defendant in appellate litigation before the Supreme Court, the record showing that the plaintiff was attorney in this case and that after suit was started the defendant paid the plaintiff a part on account for legal services, is sufficient admission by the defendant and evidence that the attorney did in fact render legal services.</p> <p>9. Municipal corporations, § 118*—when have power to hire additional counsel. In the absence of ordinance or charter provision to the contrary a city has authority to hire additional counsel to conduct litigation so as to become'liable for such services.</p> <p>10. Municipal corporations, § 118*—how defense that employment of attorney is ultra vires is defeated. In assumpsit for the value of legal services rendered to a city, the defense that the employment was ultra vires is defeated by the partial payment by the city after suit started and by the employment of additional counsel by the city in the suit at bar.</p> <p>11. Pleading, § 143*—when affidavit of claim is sufficient to authorise default judgment. Under section 56 of the Practice Act (J. & A. U 8593), making an affidavit of claim prima facie evidence of the amount due, an affidavit of claim in assumpsit for the value of legal services that the plaintiff’s demand is for legal services rendered to the defendant at its request, and that there is due $1,638, is sufficient to authorize and sustain a judgment by default.</p> <p>12. Appeal and ebbob, § 801*—what bill of exceptions need not contain. An affidavit of claim in an action of assumpsit is a part of the record and examinable by the court of review, without a bill of exceptions.</p> <p>13. Judgment, § 113*—what does not defeat judgment by default based on affidavit of claim. A default judgment for the plaintiff based on an affidavit of claim in an action of assumpsit for the value of legal services is not invalidated by the fact that the plaintiff recovered less than the amount set out in the affidavit of claim, because he testified admitting receipt of part payment after suit was started.</p> <p>14. Appeal and ebbob, § 800*—when amount of damages may not be questioned. Upon failure of the bill of exceptions to show a motion to set aside the assessment of damages on default, or any ruling on such motion, the amount of damages cannot be questioned on appeal.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Error to the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>1. Building and construction contracts, § 84*—when builder may treat contract as rescinded and sue for value of services. Upon repudiation of a building contract by the owner without reasonable cause, the builder may treat the contract as rescinded and recover in assumpsit for the reasonable value of his services.</p> <p>2. Building and construction contracts, § 89*—what need not be alleged in declaration on common counts by builder for value of services. A builder, having elected to treat a building contract as rescinded and to sue in the common counts for the value of his services, need not allege in the declaration his reason for not performing in full.</p> <p>3. Building and construction contracts, § 113*—when measure of damages in assumpsit by builder not governed by contract. In assumpsit by a builder for the value of services performed up to the time when the defendant owner refused to permit him to proceed with the written contract, the measure of damages is not governed by the provisions of the contract.</p> <p>4. Appeal and error, § 1466*—when admission of improper evidence harmless error. In assumpsit for the value of services in erecting a building, tried by the court without a jury, it is not prejudicial error to admit evidence of what was paid for material and services or what they were worth, without technically stating the market value, where there is other competent evidence of value and no objection raised.</p>

<p>1. Partition, § 29*—right to make adverse claimants parties. The Partition Act allows partition and removal of clouds in the same proceeding, and the complainant may make adverse claimants parties or not as he sees fit.</p> <p>2. Equity, § 23*—when rule as to retention of jurisdiction to give legal relief applied. Under the rule that equity having obtained jurisdiction will proceed to give legal relief, a mechanic’s lien claimant is entitled to enforce his lien by intervening petition in partition proceedings, although his remedy is expressly created by statute.</p> <p>3. Partition—who proper party in proceedings for. A mechanic’s lien claimant is a proper party in partition proceedings.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>1. Justices of the peace, § 170*—strict compliance with statute relating to appeal. An appeal from a justice’s judgment is purely statutory and necessitates strict compliance therewith.</p> <p>2. Justices of the peace, § 192*—when appeal bond must be filed. An appeal bond in a justice court must be filed within 20 days to give the reviewing court jurisdiction.</p> <p>3. Justices of the peace, § 192*—what is not filing of appeal bond with justice. Leaving an appeal bond at the office of a justice from which he was known to be absent for an indefinite period cannot be regarded as filing it with the justice at that time.</p> <p>. 4. Justices of the peace, § 196*—lack of power to approve appeal bond nunc pro tunc. A justice of the peace has no power to approve an appeal bond nunc pro tunc so as to bring it within the 20-day statutory limitation.</p> <p>5. Justices of the peace, § 155*—what not required to note in docket. A justice is not required by statute to note in his docket the time of filing and approving an appeal bond, and such notation may be contradicted by parol evidence.</p>

<p>1. Municipal corporations, § 446*—what declaration in action for damages for change of grade need not allege. A declaration in an action against a city for damages for a change of grade in a street need not allege that the acts complained of resulted in a depreciation of the fair cash market value of the premises.</p> <p>2. Judgment, § 679*—when plea of res adjudicata insufficient. In an action for damages caused by a change of grade, a plea setting up the special assessment proceedings and judgment of the County Court confirming the assessment roll, which included adjustments, is insufficient to show res adjudicata in failing to aver proceedings to ascertain damages to the plaintiff’s property, under section 13 et seq. of the Local Improvement Act (J. & A. 1f 1400 et seq.).</p> <p>3. Municipal corporations, § 425*—right of action in abutting owner for damages for change of grade. An abutting owner has a legal right of action for damages sustained by a change of gradé in a street improvement.</p> <p>4. Municipal corporations, § 606*—how damages sustained by abutting owner through street improvement cannot be determined. Damages sustained by an abutting owner through a street improvement cannot be determined in the proceedings in the County Court instituted merely for confirmation of the assessment, nor can they be urged as a defense to the assessment.</p>

<p>1. Costs, § 85*—when motion to retax on appeal may he decided. A motion to retax costs in the Appellate Court may be decided at a subsequent term.</p> <p>2. Costs, § 61*—vacating of judgment on motion to retax. Under sections 26 and 27 of the Costs Act (J. & A. 1ÍU 2740, 2741), the court is authorized to vacate the entire judgment for costs on motion to retax.</p> <p>3. Costs—who not liable for on appeal. The costs of appeal cannot be taxed against the applicant in a proceeding for appointment of a conservator, under chapter 86, Rev. St. (J. & A. 1 7285 et seq.j, which contains no provisions for costs.</p> <p>4. -Insane persons, § 16*—repeal of provision of statute relating to proceedings for appointment of conservator. The provision in section 1, ch. 86, as amended in 1895 (J. & A. f 7825), to the effect that proceedings for the appointment of a conservator should conform to chapter 85, was repealed by amendment in 1903 entirely omitting such provision.</p> <p>5. Courts, § 152*—when affirmance of judgment for costs not authority in later case. The affirming of a judgment for costs by the Supreme Court without argument or brief questioning the right to tax such costs is not authority upon that question in later cases.</p> <p>6. Costs, § 64*—power of courts to render judgment for. In the absence of statutory authority, the courts have no power to enter judgment for costs.</p> <p>7. Costs—liability of applicant for conservatorship. Section 8 of the Costs Act (J. & A. If 2722), authorizing the defendant to recover costs against the plaintiff, does not cover the case of an alleged feeble-minded person, prevailing over an applicant for a conservator.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. Theodore N. G-been, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Arthur W. De Selm, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Charles F. Ibwin, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>1. Bills and notes, § 165*—when person liable as indorser and not as guarantor. Under sections 63 and 64 of the Negotiable Instruments Act (J. & A. ff 7702, 7703), one who places his name on a promissory note without restrictive words before delivery, is liable as an indorser and not as a guarantor, although he had previously promised to guarantee the note.</p> <p>2. Bills and notes, § 433*—when parol evidence inadmissible. Parol evidence is not competent in an action on a promissory note to show that an accommodation indorser had in fact agreed to become liable as guarantor.</p>