Volume 214 — Illinois Appellate Court Reports

<p>1. Abandonment, § 2*—when evidence shows property was not abandoned. In an action of replevin by a dairy company against a railroad company to recover possession of milk bottles bearing plaintiff’s mark which had been gathered up, some from dump heaps, by other persons and delivered to defendant for shipment, evidence held sufficient to show that plaintiff had not abandoned the property.</p> <p>2. Replevin, § 125*—when property identified. Milk bottles of a dairy company which had been gathered up, some from dump heaps, by certain persons, and delivered to a carrier for shipment, are sufficiently identified, in a replevin action, by evidence that bottles marked with plaintiff’s name as were those taken on the writ were manufactured for the plaintiff and that plaintiff had never parted with title to them.</p> <p>3. Replevin, § 123*—when evidence sufficient. In an action of replevin by a dairy company against a railroad company to recover possession of certain milk bottles which bore plaintiff’s mark and had been gathered up, some from dump heaps, by certain persons, and delivered to defendant for shipment, evidence held sufficient to sustain a judgment for plaintiff.</p>

<p>1. Executors and administrators, § 543*—how far order approving administrator’s account conclusive. The order of a Probate Court, in an estate in which one of the two administrators filed a sworn partnership inventory, in which he, as sole surviving partner, claimed an interest in the partnership property, and in which the administrators were heirs, approving the final report and account was conclusive on the rights of the surviving partner and may not he collaterally attacked hy the other heir, in proceedings to enforce a claim against his estate for conversion of partnership' assets.</p> <p>2. Fraud, § 47*—when laches inapplicable. Where a cause of action arises from fraud, laches will not apply in equity until the discovery of the fraud or until the fraud could have been discovered by the exercise of reasonable diligence.</p> <p>3. Fraud, § 33*—when failure to discover fraud excused. The failure to exercise diligence to discover fraud is excused where there is a relation of trust and confidence existing, such as between co-administrators who are also coheirs, which renders it the duty of the party committing the fraud to disclose the truth to the other.</p> <p>4. Witnesses, § 132*—what testimony incompetent against personal representative. In proceedings by an heir against the estate of another heir to enforce a claim for fraud in conduct of a partnership in which the latter heir was interested with his father, and of whom he and claimant were heirs, and in which the issue was the perpetration of fraud by the latter heir upon claimant, evidence of claimant that she first became apprised of the fact that she had a claim against her brother, the latter heir, when she was informed thereof by her counsel some time after her brother’s death, as bearing upon the question of applicability of the statute of limitations and relating to the question of laches, was incompetent as against the executrix of the latter heir, under section 2, ch. 51, Rev. St. (J. & A. 5519), as relating to facts occurring and existing during the lifetime of .such latter heir.</p>

<p>1. Damages, § 120*—when not excessive. A verdict for $12,500 for complicated injuries to a boy 15 years of age, rendering him a cripple for life, held not excessive.</p> <p>2. Tbial, § 130*—what argument proper. Remarks of counsel for plaintiff in argument in a personal injury case that his client was “an American boy” were proper.</p> <p>3. Tbial, § 142*—when argument as to damages proper. Remarks by plaintiff’s counsel in argument in a personal injury case as to the compensation his client should receive, held proper where they were simply an effort to offset the estimate made in argument by defendant’s counsel as to what compensation should be admeasured to plaintiff.</p> <p>4. Appeal and error, § 1621*—when unresponsive answer cured by striking. The withdrawal of a juror and continuance of a personal injury case on the ground of an improper answer of a witness for plaintiff was properly denied where the unresponsive answer of the witness was stricken out.</p> <p>5. Negligence, § 91*—effect of contributory where defendant’s acts are wilful. The question of contributory negligence of a person injured by the negligence of a servant of another cannot be considered where such negligence was wilful and wanton.</p> <p>6. Automobiles and garages, § 2*—what constitutes wilfulness as to boys playing in street. The driver of an automobile truck is guilty of wilful negligence, where he sees boys playing ball in the street, and proceeds on his way recklessly and injures a boy who is running towards the home plate, oblivious to the danger, notwithstanding the absence of the element of ill-will towards plaintiff.</p> <p>7. Automobiles and garages, § 2*—illegality of games in street as affecting right to recover for injuries. The fact that a boy who was injured by an automobile truck, driven by the servant of another, was playing baseball on the street in violation of a city ordinance will not debar a recovery where such playing was not the proximate cause of the accident and the accident occurred through the wilful and wanton conduct of such driver.</p> <p>8. Automobiles and garages, § 3*—when ordinance limiting speed admissible. In an action against the owner of an automobile truck by a boy to recover for personal injuries due to the negligence of a servant of defendant, where the declaration charged careless and negligent driving, and there was evidence to sustain the charge, a speed ordinance was admissible in evidence.</p>

<p>T. Municipal corporations, § 879*—what is nature of title to streets. The title to streets and alleys is in the municipality for the public use, and the municipality, both in the laying out of the streets and alleys and in vacating the same thereafter, acts in and for the interest of the public and not in the interest or for, the benefit of individuals.</p> <p>2. Municipal corporations, § 926*—when street vacating ordinance not invalid. The validity of a street vacating ordinance is</p> <p>not affected by the fact that the title to a vacated street or alley reverts under the terms of the ordinance to the dedicator or adjoining' owner and thereby becomes private property.</p> <p>3. Municipal corporations, § 106*—when parol evidence of purpose of ordinance inadmissible. Parol evidence is inadmissible to show that a street vacation ordinance was passed for private benefits where such parol evidence is dehors the provisions of such ordinance.</p> <p>4. Municipal corporations, § 85*—right to consider motives of council in passing ordinance. The motives influencing a city council in passing a street vacation ordinance are not the subject of judicial inquiry.</p>

<p>1. Judgment, § 502*—when judgment against principal for negligence conclusive in action over against contractor. The decision in an action by a person against a department store for personal injuries sustained by tripping on a canvas laid on the floor of the store by a painting subcontractor was conclusive, in an action by the department store against the contractor for indemnity for loss sustained by payment of the judgment, as to all matters decided, including the absence of contributory negligence, but was not conclusive as to the undecided question of negligence of the contractor, although he was a party.</p> <p>2. Negligence, § 46*—when contractor liable over to owner of building against whom judgment was recovered. The fact that a building was not in the possession of contractors at the time of an accident to a person due to tripping on a canvas placed on the floor of the building by subcontractors, but was in possession of the owner, will not relieve the contractors from liability under the building contract to reimburse the owner for a judgment paid to the injured person if the negligence which caused the accident is attributable to the contractors.</p> <p>3. Covenants, § 3*—effect of covenant not to sue on rights of third person. The covenant of a person who was injured in a building, due to tripping on a canvas placed on the floor by subcontractors, not to prosecute the contractors, while binding between the parties, in no wise affected the liability of the contractors, if any, to respond in an “action over” for damages suffered by the owner due to payment of a judgment in favor of the injured person.</p>

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

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

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

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

<p>1. Injunction, § 260*—when punishment for violation of injunction not unreasonable. On appeal from an order punishing appellant for acts of intimidation and violence in violation of an injunction issued during a strike, evidence that appellant, a member of one of the striking unions, in company with another, made their way into the bedroom of one of the workers and, upon his refusing to quit work, committed a violent assault accompanied by language indicating a disregard for the injunction, held to show that the finding of guilty was justified and the punishment of 6 months in jail and a fine of $100 not unreasonable.</p> <p>2. Injunction, § 257*—when knowledge of injunction against union shown. An appeal from a sentence for violation of an injunction, evidence that appellant admitted that he knew his union was enjoined, that a witness had talked with him in the vicinity of the factory where placards were posted giving information as to the injunction and that there was widespread publicity concerning it, held sufficient to show that he had knowledge of the injunction.</p> <p>3. Injunction, § 257*—when shown that assault was committed in connection with injunction against strikers. On appeal from a conviction for violation of an injunction issued during a strike, the undisputed testimony of the worker assaulted by appellant as to why he was assaulted, in connection with other circumstances of the case, held to show that the assault was committed in connection with the injunction.</p>

<p>1. Wills, § 89*—when evidence insufficient to show publication of nuncupative will. Upon appeal by one of the proponents of a nuncupative will from an order admitting to probate a written will, evidence reviewed and held to be insufficient to establish a publication of the alleged nuncupative will.</p> <p>2. Wills, § 94*—what evidence admissible to show fraud in execution. The rule limiting the contestants of a will to the testimony of subscribing witnesses, when the testimony of such witnesses is exclusively relied upon by the proponents, applies only to testimony as to testamentary capacity, and fraud going to the execution of the instrument offered for probate may be shown on behalf of contestants by any competent evidence.</p> <p>3. Wills, § 94*—when fraud as to malting of nuncupative will shown. Evidence, offered by the contestants of an alleged nuncupative will, establishing the fact that the words of the supposed will were never in fact spoken, showed such fraud as is contemplated by section 15 of the Statute of Wills (J. & A. 1f 11556).</p> <p>4. Wills, § 118*—effect of nuncupative mil as revocation of written mil. A revocation of a written will by a later- nuncupative will is forbidden by section 17 of the Statute of Wills (J. & A. If 11558).</p> <p>5. Wills, § 118*—application of statute to partial revocation. Section 17 of the Statute of Wills (J. & A. If 11558) applies to an attempt by a testator to revoke a part, as well as the whole, of his previous testament.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Martin M. Geidlet, 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. Theodore Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Leo .1. Doxlb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.</p>

<p>1. Basements, § 47*—right of dominant owner to extend. An easement of a right of way in a private alley in favor of a lot abutting thereon cannot be extended to an adjoining lot by the unauthorized act of the owner of the dominant estate.</p> <p>2. Easements, § 61*—when bill to restrain obstruction shows unauthorized use. In a suit to restrain the obstruction of a private alley, allegations of the bill held sufficient to show that complainants used the alley in question as a means of access to a lot adjoining the lot which constituted the dominant estate.</p> <p>3. Basements, § 57*—when obstruction not justified by unauthorized extension. Unauthorized extension of an easement in a private alley by using it in connection with a lot adjoining the dominant, lot will not authorize the owner of the servient estate to obstruct the alley.</p>

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

<p>1. Liens, § 4*-^whep equitable created by oral promise to give mortgage. Where one furnishes money for the purchase of certain property upon an oral promise of a mortgage, on such property, an equitable lien upon the property is thereby created which will be treated in equity as an actual mortgage.</p> <p>2. Liens, § 4*—when evidence shows loan as promise to give mortgage. Evidence examined and held to establish a loan from plaintiff to defendants to enable them to purchase certain real estate, and an oral promise by defendants to thereafter execute and deliver a mortgage thereon to secure repayment of the loan, so as to justify the imposition of an equitable lien upon the property.</p>

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

<p>1. Appeal and ebbob, § 541*—what is proper way to question special findings. The way to question special findings made at the instance of a defendant is by motion for new trial, or by some other appropriate motion, and, upon failure to so question them, the facts found will be considered as proven on appeal.</p> <p>2. Master and servant, § 831*—when facts specially found by jury in death action under Federal Employers' Liability Act considered as proven. In an action for the death of a brakeman, based on the Federal Employers’ Liability Act, where death was caused by decedent colliding in the nighttime with a bridge constructed over the car on top of which he was.standing, which had a clearance of from 2 to 2y2 feet between the bottom of the bridge and the top of the car, and where “telltales” were erected at intervals to warn brakemen of the approach of the bridge, and where the jury specially found that the “telltale” furthest away from the bridge was lighted but that the nearest one was not sufficiently lighted, and that the strands of the rope of the nearest “telltale” were missing from that portion above the running board, the facts so found- were considered as proven where such findings were not questioned either by motion for new trial or by some other appropriate motion.</p> <p>3. Master and servant, § 832*—when general and special verdicts of jury in death action under Federal Employers’ Liability Act are conclusive. In an action for the death of a brakeman, based on the Federal Employers’ Liability Act, where death was caused by decedent colliding, in the nighttime with a bridge constructed over the car on top of which he was standing which had a clearance of from 2 to 2% feet between the bottom of the bridge and the top of the car, and where “telltales” were erected at intervals to warn brakemen of the approach of the bridge, the controverted questions as to whether the defective condition of the “telltale” nearest the bridge did not extend over the center of the car and was sufficient to give decedent notice of the approach to the bridge, and as to whether he was in fact warned by such “telltale,” were settled by the general and special verdicts of the jury.</p> <p>4. Master and servant, § 430*—when question of contributory negligence is immaterial in death action under Federal Employers’ Liability Act. In an action for the death of a brakeman, based on the Federal Employers’ Liability Act, where death was caused by decedent colliding in the nighttime with a bridge constructed over the car on top of which he was standing which had a clearance of from 2 to 2y2 feet between the bottom of the bridge and the top of the car, and where “telltales” were erected at intervals to warn brakemen of the approach of the bridge, the question whether decedent could have performed his duties as efficiently and with more safety by remaining in the engine was immaterial, because under such act contributory negligence was no defense and could only be considered on the question of mitigation of damages. e</p> <p>5. Master and servant, § 304*—when servant assumes risk attributable to master’s negligence. An employee assumes a risk nominally incident to his occupation, but does not assume a risk or hazard arising from a defect which is attributable to the employer’s negligence until he becomes aware of such defect, or unless the facts and circumstances are such that he will be presumed in law to have knowledge of such defects.</p> <p>6. Master and servant, § 308*—when brakeman does not assume risk of failure to repair “telltales’’ Negligence in permitting “telltales” to become and remain out of repair so that they fail to give warning of the approach to low structures constructed over railroad tracks is not a hazard nominally incident to the occupation of a brakeman, and is not an assumed risk.</p> <p>7. Master and servant, § 698*—when risk arising out of condition of “telltales" not assumed by brakeman as matter of law. Where there was no evidence that a brakeman, who while on top of a car was killed by coming in contact with a low structure over the track, knew that the “telltale” nearest the bridge was out of repair, it would not be held as a matter of law that he assumed the hazard of its condition, which was caused by the negligence of the railroad company.</p> <p>8. Appeal and error, §§ 1523, 1543*—when erroneous instruction on credibility of witnesses will not reverse. An instruction stating that the jury are the judges of the credibility of the witnesses and of the weight to he given to their testimony, and that they were not bound to take the testimony of any witness as absolutely true, and should not do so, if they are satisfied from all the facts and circumstances proven that such witness was mistaken, or that for any other reason his testimony was untrue or unreliable, although not stating a correct rule of law, could not have misled the jury and was not reversible error in view of other instructions as set forth.</p> <p>9. Death, § 48*—when exclamations indicating pain admissible in action under Federal Employers’ Liability Act. Under the Federal Employers’ Liability Act as amended, providing that in an action for wrongful death the administrator may recover for conscious pain the deceased underwent during the period of time between the injury and his death, it was not error to admit testimony as to exclamations made by the decedent immediately after his injury, indicating pain and distress.</p> <p>10. Master and servant, § 622*—when admission of evidence in action for death of brakeman as to condition of “telltale” not error. In an action for the wrongful -death of a brakeman by coming in contact with a low structure over the car on which he was standing, where it was conceded that the “telltale” nearest such bridge was out of order, it was not error to admit testimony as to the condition of another “telltale” located further away, as decedent had the right to rely upon both.</p> <p>11. Master and servant, § 622*—when admission of evidence in action for death of brakeman as to condition of “telltale” not error. In an action for the wrongful death of a brakeman by coming in contact with a low structure over the car on which he was standing, where it was conceded that the “telltale” nearest such bridge was out of order, it was not error to admit testimony as to the condition of another “telltale” located further away, as such “telltales” constituted a part of the physical condition of the surroundings in the vicinity of the approach to the bridge.</p> <p>12. Master and servant, § 332*—when risk of being struck by bridge assumed by brakeman. In an action for the wrongful death of a brakeman by coming in contact with a low structure over the car on which he was standing, where it was conceded that the "telltale” nearest such bridge was out of order, and where there was testimony that the other “telltale” was also out of order, and that decedent knew that he was approaching the bridge under which he could not pass with safety while standing on top of the car, but also knew of the existence of "telltales,” he did not, as a matter of law, assume the danger of the defective condition of the “telltale," where there is no evidence that he knew of such defective condition, but he assumed the danger of the bridge guarded against by the maintenance of the “telltales.”</p>

<p>1. Judgment, § 145*—when refusal to set aside default judgment not error. The refusal to set aside a default judgment was not error where the affidavit of merits, filed with the pleas after the entry of the judgment, merely stated that defendant had a good defense upon the merits to the whole of plaintiff’s demand, and thus failed to set up any defense.</p> <p>2. Judgment, § 106*—when judgment by default proper. Under section 55 of the Practice Act (J. & A. If 8592), requiring filing of an affidavit of merits by a defendant specifying the nature of his defense, a judgment by default was properly entered in the absence of an appearance or plea with an affidavit of merits.</p> <p>3. Appeal and ebbob, § 969*—-what recitals in record not considered. Recitals of the conclusions of the clerk in the record are extra-official, of no legal effect and cannot be considered by the court.</p> <p>4. Appeal and ebbob, § 951*—when recital expunged from record. A citation in the record of a default judgment that, as per the letter and request of a named attorney, such attorney was entered as attorney of record for defendant and his name placed as such attorney on the general docket and judge’s docket, was expunged from the record on the ground that it was merely an extra-official recital of the clerk which had no legal effect.</p>

<p>1. Criminal law, § 577*—when points raised on motion to quash indictment regarded on appeal as waived. Points raised on a motion" to quash an indictment as presented to the trial court were considered as waived where not argued on review.</p> <p>2. Elections, § 240*—when, indictment for altering ballots sufficiently certain as to election district, etc. An indictment, charging the alteration of ballots by an election official in violation of the general election law at an election for State’s Attorney, charged with sufficient certainty to apprise defendant that there was á second election district of the election precinct of the named town, and that defendant was one of the election judges at the election.</p> <p>3. Elections, § 240*—when indictment for altering ballots not defective for failing to state qualifications of candidate. An indictment charging the alteration of ballots by an election official was not defective in failing to state the qualifications of the candidate for State’s Attorney, for whom the ballots were cast which defendant was charged with altering.</p> <p>4. Elections, § 2i0*^when indictment for altering ballots not fatally defective in matter of acts charged. An indictment charging an election official with alteration of ballots was not fatally defective because some of the acts set out might in and of themselves have constituted the violation of other statutes or other sections of the same statute than the one in question.</p> <p>5. Indictment and information, § 8*—when signing of indictment for violation of election law by special State’s Attorney proper. The signing of an indictment, charging an election judge with alteration of a ballot cast for one of the candidates for State’s Attorney, by a special State’s Attorney regularly appointed by the Circuit Court for the investigation of alleged violations of the election law, was proper.</p> <p>6. Criminal law, § 595*—when judgment of conviction not reversed. Where the proofs conclusively show defendant’s guilt, a judgment of conviction will not be reversed for errors which neither caused defendant to be deprived of some of his constitutional rights nor were vital to a fair and impartial trial.</p> <p>7. Elections, § 241*—when ballots admissible in evidence on prosecution for altering ballots. In a prosecution of an election judge for altering ballots, such ballots were properly admitted in evidence, although at the trial 6 months had elapsed since the election, and the proper preservation and the identification of the ballots were in dispute, as it was for the jury to determine what weight was to be given to the ballots under all the circumstances proven.</p> <p>8. Criminal law, § 460*—when question not considered on appeal on account of insufficient abstract. In a prosecution of an election judge for altering ballots, alleged error in refusing to allow defendant to introduce in evidence the record of the board of supervisors for the purpose of showing that there was no order fixing the place of the election and no division of the town into districts, was not considered, where the abstract contained no preliminary proof regarding such record, nor'the record itself, nor anything in regard to its offer, from which the court could determine whether the ruling was correct or not.</p> <p>9. Elections, § 241*—when ballots admissible in evidence on prosecution for altering ballots. In a prosecution of an election judge for altering ballots, it was not error to admit in evidence the ballots in question, on the alleged ground that at the time of the trial 6 months had elapsed since the election and under the law the ballots should have been destroyed and had no legal existence, had not been properly preserved and were not identified, as the rule on the competency of the ballots in election contests had nothing to do with the competency of such ballots in a prosecution of the kind in question.</p> <p>10. Elections, § 241*—When supervisors’ record admissible in evidence on prosecution for altering ballots. In a prosecution of an election judge for altering ballots, the record of the supervisors showing the appointment of defendant as such judge was properly admitted, as it was the best evidence of the fact.</p> <p>11. Criminal law, § 425*—when error in connection with custody of jury will be considered on appeal. Error in permitting the jury in a criminal case to retire in charge of an unfeworn officer will only be considered where, if the officer was not in fact sworn, defendant objected to the irregularity at the time, and if not corrected by the court, took a bill of exceptions.</p> <p>12. Criminal law, § 388*—when sentence on conviction under indictment containing several counts sufficient. The different counts of the indictment for violation of the election law in question charged but one offense, although different acts were alleged constituting the offense charged in the several counts; and therefore sentence was not required to be imposed upon each count.</p>

<p>1. Instructions, § 96*—-when instruction on credibility of witnesses erroneous. An instruction on the credibility oí witnesses, stating that it was for the jury to determine from the manner of the witnesses, the reasonableness or otherwise of their testimony and their means of knowing, if shown by the evidence and all other circumstances tending to aid them in weighing the testimony, etc., was erroneous as it did not confine the jury to the evidence in the case in determining the credibility of the witnesses.</p> <p>2. Instructions, § 114*—when instruction as to allegations required to be proven erroneous. An instruction stating that plaintiff must prove each material allegation in the declaration and hill of particulars by a preponderance of the evidence was erroneous, as proof of the material allegations in any one of the counts would have been sufficient, and the bill of particulars was neither part of the declaration nor of the record and controlled in no way the weight of the evidence.</p> <p>3. Pleading, § 337*—what is object of bill of particulars. The bill of particulars is no part of the declaration and no part of the record and controls in no way the weight of the evidence, its only object being to limit the proof upon the trial to the items mentioned therein.</p> <p>4. Pleading, § 395*—what allegations required to be proven. Proof of the material allegations in any one of a number of counts of the declaration by a preponderance of the evidence is sufficient to entitle a plaintiff to recover.</p> <p>5. Animáis, § 48*—when instruction in action for killing sheep erroneous. In trespass for the killing of plaintiff’s sheep by defendant’s dogs, it was error to instruct that if the evidence had not proven by the greater weight the identity of the dog or dogs which caused the injury, it was the duty of the jury to find the defendant not guilty, as in this class of cases there might be ample proof that the dogs had killed the sheep without positive identification of each particular dog which did it.</p> <p>6. Instructions, § 87*-—•when instruction on degree of proof required erroneous. An instruction which required the jury to be convinced by the proofs was erroneous.</p> <p>7. Animals, § 12*—who liable for killing of sheep by pack of dogs. Where two or more dogs engage as a pack in killing or worrying-sheep, the owner of any one of the dogs so engaged is liable for the whole of the damage done.</p> <p>8. Animals, § 40*—when variance in action for killing sheep should have been obviated by amendment. In trespass for killing, wounding and worrying sheep, by dogs, where the declaration charged in each count that the damage was done by two dogs owned by defendant, and there was some evidence tending to show that one of the dogs was not owned by the defendant, the variance should have been obviated by amendment.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>1. Malicious prosecution, § 78*—when evidence sufficient to support judgment for defendant. A judgment for defendant in malicious prosecution was sustained, where a story involving plaintiff in a theft was carried to the defendant and a third person and both carried it to the State’s Attorney, and where the latter called all the parties, including defendant, before him and where the latter fairly laid all the information he had before the State’s Attorney, including its source, and where the State’s Attorney not only advised but directed the making, of the arrest without further investigation, and where the case against plaintiff was dismissed after several continuances.</p> <p>2. Malicious prosecution, § 14*—when arrest of person on charge of crime for examination only improper. The arrest of men on charges of crime by or at the instance of public officers, for the purpose of plying them with questions or of giving them what is sometimes called the “third degree,” when such officers are not in possession of tangible proof to cause a well-grounded belief that the one arrested is the right party, was termed reprehensible and an abuse of the processes of the court that should not be tolerated.</p> <p>3. Malicious prosecution, § 13*—when one acting on advice of counsel protected. When a prosecuting witness before beginning a case goes to a competent attorney and discloses to him in good faith all of the facts and information he has as to a supposed offense as well as the source of his information, and then acts on the advice of such attorney and starts a criminal prosecution, he will be considered as having had probable cause for instituting such prosecution, even if afterwards the party charged is found to be not guilty of the offense charged.</p> <p>4. Malicious prosecution, § 8*—when one having probable cause protected. When the prosecuting witness has probable cause for instituting a criminal prosecution, a suit for malicious prosecution will not lie.</p>

<p>Appeal from the Circuit Court of Clark county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1918.</p>

<p>1. Roads and bridges, § 39*—when filing of certificate by commissioners essential. The filing of a certificate with a justice of the peace by the commissioners of highways consequent upon the failure to release or agree upon damages upon a vacation of lands for a road, as required by Hurd's Rev. St. 1917, ch. 121, sec. 82 [Call. 1916 Stat. ]f 10000(82)], is jurisdictional, as in no other way can such justice obtain jurisdiction to assess damages to owners for the vacation of such lands.</p> <p>2. Roads and bridges, § 53*—when commissioners of two townships must sign certificate. Under Hurd’s Rev. St. 1917, ch. 121, sec. 99 [Call. 1916 Stat. If 10000(99)], relating to the vacation of lands for roads, the road commissioners of two townships must act together as to a road between townships, and as to roads wholly within one town the commissioner of that town only can act; and therefore a certificate for the laying out of four roads, two to be established and two to be vacated, one of which was located along the township line and the other three wholly within one of the townships, was fatally defective, which was signed by four persons designated “Commissioners of Highways,” but without identifying which of the townships any of such persons represented.</p> <p>3. Roads and bridges, § 71*—when surveyor’s plat inadmissible. The admission, upon the assessment of damages for the vacation of land for a road, of a survey or! s plat prepared in attempted compliance with Hurd’s Rev. St. 1917, ch. 121, sec. 78 [Call. 1916 Stat. T 10000(78)], was error, where the proof tended to show that the distances shown thereon were placed there from the recollection of the chain carriers and not from the 'memoranda taken at the time of the survey.</p> <p>4. Roads and bridges, § 71*—when surveyor’s plat inadmissible. The admission, upon the assessment of damages for the vacation of land for a road, of a surveyor’s plat prepared in attempted compliance with Hurd’s Rev. St. 1917, ch. 121, sec. 78 [Call. 1916 Stat. 1i 10000(78)], was error, where the terminals of the plat were different from those in the commissioners’ certificate.</p> <p>5. Roads and bridges, § 71*—when deviation from terminus by surveyor improper. Hurd’s Rev. St. 1917, ch. 121, sec. 78 [Call. 1916 Stat. f 10000(78) ], providing that the surveyor may make changes between the termini of a road as the convenience and interest of the public in his judgment may require, gave no power to such surveyor to deviate the terminus of a road about 200 feet from the plan of the road petitioned for.</p> <p>6. Roads and bridges, § 47*—when lump assessment of separate interests improper. In an assessment of damages to land proposed to be vacated for a road, instructions which permitted the assessment of damages in a lump sum to two or more persons, where they had separate interests in the same property, was erroneous.</p> <p>7. Roads and bridges, § 57*—when granting leave to amend certificate erroneous. To grant a motion for leave to amend the certificate of the road commissioners provided for in Hurd’s Rev. St. 1917, ch. 121,.sec. 82 [Call. 1916 Stat. 1[ 10000(82)], which formed the basis of a proceeding to assess damages for the land to be taken, so as to make the termini of the proposed road along the town line correspond to the surveyor’s plat, which showed a deviation of 200 feet at one of the termini, from the plan of road petitioned for, would have been error at any time.</p> <p>8. Roads and bridges, § 90*—when appeal will lie from order of assessment by justice. An appeal lies to the Circuit Court from the justice in a proceeding under Hurd’s Rev. St. 1917, ch. 121, sec. 82 [Call. 1916 Stat. 10000(82)], to assess damages for land vacated for a road.</p> <p>9. Roads and bridges, § 96*—when appellant cannot claim appeal mil not lie. Upon an appeal from the assessment of damages for the vacation of a road, under Hurd’s Rev. St. 1917, ch. 121, sec. 82 [Call. 1916 Stat. If 10000(82)], the appellants could not be heard to claim that no appeal lay to the Circuit Court, they having themselves invoked the right.</p> <p>10. Roads and bridges, § 71*—When invalid certificate of surveyor ground for reversing assessment without remand. As the surveyor’s plat required by Hurd’s Rev. St. 1917, ch. 121, secs. 78, 79 [Call. 1916 Stat. 10000(78), 10000(79)], is a necessary prerequisite to the assessment of damages for establishing or vacating roads, the judgment in the justice proceeding in question for the assessment of damages was reversed without remanding, where the surveyor’s certificate was contrary to the statute in that in it the surveyor deviated the terminus of the road 200 feet from the plan of the road petitioned for.</p>

<p>1. Garnishment, § 1*—when strict compliance uñth statute requisite. Garnishment proceedings are purely statutory, and only by a strict compliance with the terms of Rev. St. ch. 79, sec. 85 (J. & A. H 6946), governing such proceedings, can a justice acquire jurisdiction to issue a garnishee summons or to hear and determine a garnishee case.</p> <p>2. Garnishment, § 53*—when affidavit insufficient. An affidavit for garnishee summons which was originally signed with plaintiff’s name by his attorneys, and recited that it had been sworn to before the justice on a stated day, without showing who swore to it, and which was subsequently amended by striking out the attorneys’ names, was no affidavit at all and formed no basis for the proceedings; it appearing that plaintiff, whose name appeared at the bottom of the so-called affidavit, did not sign or swear to it and was not even in the room when it purported to have been signed and sworn to, and that after the amendment no one attempted to resign it or to verify it as amended.</p> <p>3. Garnishment, § 54*—when proceedings dismissed for want of proper affidavit. No such affidavit as required by Rev. St. ch. 79, sec. 85 (J. & A. If 6946), having been filed in the garnishment suit in question before the justice, he had no jurisdiction to proceed and properly dismissed the proceedings, and the City Court hearing the case on appeal had no jurisdiction the justice did not have.</p>

<p>1. Trial, § 82*—when proper to reopen cause for further evidence from plaintiff who has rested. The practice of opening a case and permitting plaintiff to introduce further proof after he has formally rested his case, and after defendant has moved the court to give a peremptory instruction for defendant, is not an unusual one and is a matter resting within the sound discretion of the trial court.</p> <p>2. Insurance, § 350*—what effect of delivery of policy as to payment of premium. The unconditional delivery of the policy of accident insurance in question was not only a waiver of the prepayment of any premium provided for therein, where the proof showed that it had not been paid, but was prima facie proof that such premium had in fact been paid.</p> <p>3. Insurance, § 466*—when proof of death waived hy 'pleading to merits. An accident insurance company waived making proof of death by pleading to the declaration on the merits without mentioning the want of proof of death.</p> <p>4. Insurance, § 214*-—when statements in application deemed representations. The settled rule in this State that where it is doubtful whether the statements in an application for insurance are representations or warranties, they will be deemed to be representations, warranties not being favored because they must be literally fulfilled, applied so as to hold that statements in an application as to the holding of other accident or health insurance were representations and not warranties.</p> <p>5. Instjeance, § 654*—when other policies inadmissible to show other insurance. In an action on an accident insurance policy, where defendant claimed that the policy was avoided because the insured in answer to a question in the application as to whether he had any other accident or health insurance answered that he had none, although in fact he then had one life insurance policy and one benefit certificate in other companies, it was not error to refuse to admit such other policy and such certificate in evidence, as the one company was ■ not an accident and health insurance company and the other was a benefit society and not an insurance society in the sense that membership in it is regarded as a violation of a covenant not to take other insurance.</p> <p>6. Insurance, § 686*—when question whether insured intoxicated at time of death question for jury. In an action on an accident insurance policy, the question whether or not the insured came to his death while intoxicated was purely a question of fact for the jury.</p>

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

<p>1. Corporations, § 156*—token petition to compel production of corporate books for transfer of stock sufficient. In mandamus to compel the production of the books of a corporation for the purpose of having stock purchased by the petitioner transferred thereon, the corporation Could not by demurrer be heard to object that the petition failed to show whether the stock was fully paid for, where from the copy of the certificates attached to the petition it appeared that such certificates recited that the stock was “fully paid and non-assessable” and transferable only on the corporate books by the holder or his attorney upon surrender of the certificate, and the indorsement showed that it was the intention that ’the certificates should be the subject of purchase and sale.</p> <p>2. Corporations, § 132*—token corporation estopped by recitals of stock certificate. A corporation which issued certificates of stock reciting that the stock was “fully paid and nonassessable” was not permitted to insist that the representations so made were untrue, in mandamus by a purchaser of stock to compel its transfer to him on the corporate books.</p> <p>3. Mandamus, § 150*—what not available on general demurrer to petition. In mandamus to compel the transfer on the corporate books of stock purchased by petitioner, the objection that the copies of the certificates could not be considered because they were attached to the petition as exhibits and were not incorporated in or made part of the petition, although good on special demurrer, was not available upon general demurrer.</p> <p>4. Corporations, § 156*—when petition to compel production of corporate books sufficiently alleges demand. A petition for mandamus to compel the production of corporate books, the transfer on such books of stock purchased by petitioner and the issuance of new certificates, sufficiently averred the making of a demand to effect such purposes, where the demand was shown to have been addressed to the secretary by name, and to the officers and directors, and it was alleged that among the duties of the secretary he was required to keep a true record of all stock issued, transferred and forfeited.</p> <p>5. Corporations, § 136*—when demand for issuance of stock sufficient. A demand on a corporation to do a thing is a demand that it set in motion the means by which the thing demanded can be performed ; and, therefore, where the president of a corporation was authorized to sign certificates of stock only when ordered to do so by the directors, it was not essential to make a demand on the directors to order the president to sign the certificates and then make a demand on the president to sign them.</p>

<p>1. Counties, § 59*—when employment of county attorney ultra vires. A contract between a board of county supervisors for the employment of a county attorney to perform stated services was ultra vires such board, under Const. 1870, art. VI, sec. 22, providing for the election of State’s Attorneys, and Rev. St. ch. 14, sec. 5 (J. & A. If 616), defining the duties of State’s Attorneys, and making it the duty of the State’s Attorney to do every act and thing required to be performed under the contract in question.</p> <p>2. Counties, § 25*—right to employ county attorney. There is no provision of the statute that authorizes a county to employ at public expense an attorney to perform the duties of State’s Attorney, and county boards are limited in their power to such as is expressly granted to them by the legislature, or such as is necessarily inferred or implied from the powers so expressly granted.</p> <p>3. Counties, § 32*—who are constitutional officers. The only county officers created by the constitution are county judge, sheriff, treasurer, coroner and clerk of the Circuit Court, and neither by the constitution nor the law is there such an office as county attorney created, nor is there any authority vested in the county board from any source either expressly or by implication to create such an office.</p>

<p>1. Mandamus, § 3*—what is effect of existence of another remedy. Since the passage of chapter 87, sec. 9 (J. & A. 7338), providing that mandamus shall not be dismissed nor the writ denied because the petitioner may have another specific legal remedy, where such writ will afford a proper and sufficient remedy, it has been held that while the existence of another remedy will not bar relief by mandamus, yet the court to whom such a petition is presented may consider the existence'of another remedy in determining whether to assume jurisdiction in a particular case.</p> <p>2. Waters and watercourses, § 12*—when petition for manda, mus seeks performance of private duty in removal of obstructions from ditches. A demurrer in mandamus against commissioners of highways to compel the removal of obstructions in certain parts of an open ditch constructed by private contract, existing in a district in which lands owned by the petitioner and numerous others and roads controlled by defendants were included, was properly sustained, as the duty sought to be enforced was a private duty as distinguished from a public or official duty, such as keeping highways in condition for publics travel.</p> <p>3. Waters and watercourses, § 12*—what does not render removal of ditch obstructions public duty. In mandamus to compel highway commissioners to remove obstructions in an open ditch, where such ditch was part of a drainage system created by mutual consent and therefore the duty sought to be enforced was a private duty, the fact that the petition charged that defendants placed the obstruction complained of in the ditch did not change the rights of the parties, as if the defendants were liable in damages for obstructing the ditch, or possibly to a prosecution for the recovery of a penalty, their liabilities in those respects were personal and private which did not arise from the exercise or neglect of public duty.</p>

<p>1. Improvements, § 5*—when owner of land must account for. Where a son-in-law had for 17 years occupied a farm belonging to his father-in-law, under an arrangement between the latter and his daughter which the son-in-law understood required him to pay his father-in-law parts of the crops raised and certain cash each year, and also that the land was, upon the death of the father-in-law, to become the property of the sbn-in-law and his wife, and where, after part of the land had been conveyed to the daughter, the son-in-law was expelled from the other land, the father-in-law was required to account for all expenditures of time and money made by the son-in-law in making lasting improvements on all premises of the father-in-law, except those so conveyed.</p> <p>2. Account—extent of duty to account for expenditures under supposed agreement. Where a son-in-law had for 17 years occupied a farm belonging to his father-in-law under an arrangement between the latter and his daughter which the son-in-law understood required him to pay his father-in-law parts of the crops raised and certain cash each year, and also that the land was, upon the death of the father-in-law, to become the property of the son-in-law and his wife, and where, after part of the land had been conveyed to the daughter, the son-in-law was expelled from the other land, the father-in-law, although required to account for expenditures made by the son-in-law on the land excepting that conveyed to the daughter, was. not required to account for money expended by the son-in-law, in acquiring title in himself, to 7 acres which had stood outside a partition fence, and which, after removing such fence, he fenced in with the father-in-law’s land; nor was an accounting required for money spent by the son-in-law without the father-in-law’s knowledge, to meet the difference between the price demanded for a 40-acre tract purchased by the father-in-law and that which the latter had offered therefor.</p> <p>3. Improvements, § 7*—when hearsay admissible to show good faith. Testimony by a husband, in an action against his father-in-law to state an account of expenditures made by the husband during his occupancy of the defendant’s land for 17 years, that his wife, who was defendant’s daughter, told him in substance that her father had agreed that if she and plaintiff went into possession of the land in question and would make improvements they could in the end have the land, was competent to show what plaintiff’s belief was when he made the improvements, as to who was to be benefited thereby, although it would not have been competent to establish the fact that a contract had heen entered into between defendant and plaintiff’s wife, acting for him as well as for herself.</p>

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

<p>Appeal from the County Court of Scott county; the Hon. Franklix C. Funk, Judge, presiding. Heard in this court at the October term, 1918.</p>

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

<p>1. Appeal and error, § 1063*—when assignment of error insufficient. An assignment of error that “The court erred in sustaining the demurrer to plea number........as filed by defendants,” pre-, sented no error requiring consideration, where a demurrer was sustained to several pleas and there was no way in which the court could tell which plea defendants had in mind in making such assignment of error.</p> <p>2. Pleading, § 117*—what admitted by failure of plea to deny. When a matter material to plaintiff’s right to recover is alleged in a declaration and is not denied by a plea, such matter is to be regarded as admitted and will he presumed to be true.</p> <p>3. Mechanics’ liens, § 62*—what necessary to bar subcontractor’s lien. Before a subcontractor or materialman can be barred of his rights to a statutory lien by the terms of the original builder’s contract, he must have knowledge of its terms, or there must he proof that a written and signed agreement to that effect has been filed in the office of the recorder of deeds of the county where the building is situated, not less than 10 days prior to the sub contractor or materialman’s contracts. Hurd’s Rev. St. 1917, ch. 82, sec. 35 (J. & A. IT 7159).</p> <p>4. Mechanics’ liens, § 60*—when subcontractor’s recovery on surety bond not barred by contract between surety and owner. A subcontractor was not precluded from recovering under the principal contractor’s surety bond securing those who might become entitled to a lien, because of a provision of the contract between the owner and the surety, to which the contractor was not a party, that neither the contractor nor any subcontractor or materialman should file, have or maintain any mechanic’s lien on the building in ques-' tion, where the proof conclusively showed that such subcontractor did not have actual notice or knowledge of the terms of such contract.</p> <p>5. Pleading, § 151*—what is function of affidavit of merits. A defendant’s affidavit of meritorious defense does not take the place of a plea; it merely limits the proofs that can he made under the plea, to such facts as are set forth in it.</p>

<p>1. Appeal and ereob, § 1339*—when ground presented in motion for new trial presumed considered. Where a bill of exceptions contained nothing to show that the point, that the action of forcible entry and detainer in question did not lie but that the remedy of defendant, if any, was by ejectment, was not presented in the argument of the motion for a new trial, it will be presumed that it was considered by the court and not abandoned.</p> <p>2. Appeal and error, § 536*-—how failure of evidence raised. In order to preserve the point that there is no evidence to support a cause of action or defense, as a question for review by the Supreme Court, it is necessary to make a motion at the close of all the evidence for a directed verdict; but this rule does not apply to the Appellate Court, which has the same jurisdiction as the trial court to pass upon the facts.</p> <p>3. Appeal and ereob, § 601*—how sufficiency of evidence questioned. The question whether the evidence is sufficient to sustain the verdict may he raised for review by a motion for new trial; but the question so preserved would be one of fact, cognizable only in the Appellate Court and not a question of law for the Supreme Court.</p> <p>4. Forcible entry and detainer, § 9*—when provisions governing peaceable entry and unlawful detainer applicable. The second clause of section 2 of the Forcible Entry and Detainer Act (J. & A. If 5843), providing for the bringing of such an action when a peaceable entry is made and possession unlawfully withheld, is only applicable where the peaceable entry is made upon the premises that are in the actual possession of the complainant, or of those to whose rights he has succeeded.</p> <p>5. Forcible entry and detainer, § 67*—title not determinable'. Issues as to the title to land cannot be tried in forcible entry and detainer, and when the right to possession can be determined only by adjudicating the title, such adjudication can be made only ir ejectment.</p> <p>6. Forcible entry and detainer, § 11*—when not proper remedy where title in dispute. Where the facts in a forcible entry and detainer suit disclosed without conflict that defendant was in possession of the strip of land in question by virtue of a lease from a party who claimed title thereto, and that plaintiff claimed the right of possession thereto through the title derived by him through deeds from parties whose titles were based upon adverse possession, it was held that ejectment, and not forcible entry and detainer, was the proper action.</p>

James C. McBride, Judge, presiding. Heard in this court at the April term, 1918. Statement by the Court. Martin K. Duncan, appellant, on October 16, 1915, in the Circuit Court of Shelby county, filed his bill in equity to procure an accounting with J. Ed. Dazey, appellee.

<p>Appeal from the Circuit Court of Shelby county; the Hon. James C. McBride, Judge, presiding in the Circuit Court; the Hon. A. J. Stetoubt, Judge, presiding in the County Court. Heard in this court at the April term, 1918.</p> <p>Statement by the Court. John Bobinson died testate, leaving Phebe J. Bobinson, appellant, his widow, and ten children, viz., William T. Bobinson, Mary J. Miller, Annie Henry, John B. Bobinson, James -K. Bobinson, Alice M. Forsythe, Clarella G-. Whitaker, Florence O. Beid, Harry B. Bobinson and Boy E. Bobinson. The first three of the above named children were bom to him by a former wife, and the remaining seven were born to him by appellant.</p> <p>By the will, Phebe J. Bobinson (his widow and ap^pellant) and William T. Bobinson (a son by the deceased’s first wife) were appointed coexecntors thereof, and they qualified as such. The paragraphs of the will involved on this appeal are as follows:</p> <p>“5th. After the payment by my executors of all just debts and funeral expenses, which debts and expenses I desire my executors to pay out of the proceeds of my personal property, which personal propr erty, with the exception of the items which I have previously disposed of in this Will, I desire my executors to sell at public or private sale as soon after my death as can be, talcing into consideration a time (when in your judgment) such property will bring the most money to the estate; then if any money left I desire same deposited in Bank of Ayers Bros., Moweaqua, Illinois, to be left there until the death of my beloved wife, at which time I order and direct that my surviving executor, Wm. T. Robinson, malee an equal distribution of the same among my ten children; In case of any of the ten children having died before my beloved wife, then the part which would be due said deceased child from the above distribution I desire paid to their heirs, if any, of said deceased child; If no heirs of said deceased child, then that part to g’o to the surviving brothers & sisters of the Deceased.</p> <p>“6th. I give, devise and bequeath to my beloved wife for her lifetime only the homestead, consisting of 80 acres of land more or less, said lands being located in the Northwest Quarter of Section 2, Township Fourteen, North Range 3 east of the 3rd Principal Meridian, Shelby County, Illinois. At the death of my beloved wife I desire same to be sold by my surviving executor and the proceeds from same divided equally among the following named children: Wm. T. Robinson, Mary J. Miller and Annie Henry.</p> <p>“7th. I own other lands described as follows: The Southwest Quarter of the Northeast Quarter and the North Half of the Southeast quarter, all in Section 32, Township 14, North, Range 3 Bast of the 3rd Principal Meridian, Shelby County, Illinois. This one hundred and twenty acres of land, I desire managed by my executors in the way that they think will be to the best interests of my estate during the life of my beloved wife; The proceeds from this 120 acres of land (with the exception of Two Hundred Dollars each year, which two hundred dollars is disposed of in the next section of this Will) I desire deposited in Bank of Ayers Bros., Moweaqua, Illinois, once each year by my executors until the death of my beloved wife. Upon the death of my beloved wife I desire the total amount of money deposited in Bank of Ayers Bros., together with whatever amount may be due from my executors, to be deposited in said bank, divided by my said surviving executor equally among my ten children, if any deceased, their part to be disposed of according to a previous section in this Will. At the death of my wife I further desire that my surviving executor sell the one hundred and twenty acre tract of land and divide the proceeds equally among* the following seven children; John B. Robinson, Alice May Forsythe, James Knox Robinson, Clarella Grace WMtacre, Florence O. Robinson, Harry Kenneth Robinson, and Roy Edward Robinson.</p> <p>“8th. The Two Hundred Dollars excepted in section seven of this Will I desire given once each year into the hands of my beloved wife to do with the same whatever she desires.”</p> <p>On April 1, 1909, the coexecutors made a joint report to the County Court, wherein it is shown that the personal property of the estate had been sold by them and the claims allowed against the estate paid out of the proceeds thereof. On March 30, 1910, a report as executrix was made to the County Court by appellant only, and what is called in the briefs by counsel a final report was fifed by appellant as executrix in the County Court on December 26, 1916. This report covers her acts and doings as executrix from March 27, 1910, to November 10, 1916. Appellee, as coexecutor, did not join in the last two reports mentioned, nor has he filed any report as such, except the first one in which he joined with appellant. To the last or final report filed by appellant, appellee, as coexecutor, and as son of the deceased, filed numerous objections, which were sustained by the County Court, An appeal was taken to the Circuit Court. The following stipulation was entered into by the parties to the suit:</p> <p>“It is stipulated by and between the parties hereto that the items in dispute in this case are as follows:</p> <p>“May 14, 1913, J. B. Robinson, material and repairs to house............................$200.00</p> <p>“Aug. 29, 1913, J. B. Robinson, material and repairs to house............................ 250.00</p> <p>’“Dec. 8, 1914, Shelby County Lumber Company, com crib.............................. 239.28</p> <p>“Dec. 9, 1914, Adamson, Miller & Co., Nails, ....................................... 21.69</p> <p>“Dec. 12, 1914, G-. Donnell, labor.......... 28.75</p> <p>“Dec. 22, 1914, Roy E. Robinson, labor .... 22.00</p> <p>“Dec. 24, 1914, J. W. Hill, gravel........ 10.00</p> <p>“The above items were all used in repairs and improvements placed upon the 120 acres in question. It is further stipulated that the items shown in the report of rent and grain and com were items received from the 120 acres in' question for the various dates stated.</p> <p>“It is further stipulated that the objector now resides and has resided since the death of his father in Moultrie County, Illinois.</p> <p>“That the widow, Phebe J. Robinson, now resides and has resided since the death of her husband on the 80 acres of land named in the will; that the deceased had two sets of children, three children being children of this wife—</p> <p>“It is further stipulated that the tenant upon the 120 acres has been John B. Robinson, one of the seven children, and that he was tenant from the time of the death of his father up until the filing of this report and for sometime prior thereto he was tenant. It is further stipulated that the sums expended for the repairs and improvements above mentioned were taken from the general fund belonging to the ten children and on deposit in the Ayers Brothers Bank. It is further stipulated that all preliminary proof concerning the files in the probate court is waived and that either party hereto may use such portions of the files of the probate court as evidence without preliminary proof, the competency thereof being left to the court.”</p> <p>Notwithstanding the above stipulation, another objection to the report was heard and determined by the Circuit Court. In the report as filed in the County Court, appellant took credit for commissions as executor, and appellee objected thereto on the ground that he, as coexecntor, was entitled to one-half of the commissions. The County Court sustained his objection and on appeal to the Circuit Court this objection was overruled, and appellee has assigned a cross error thereon.</p> <p>After the first report was filed, appellee told appellant to go ahead and manage the estate, as he lived too far away to give it his personal attention. The items in dispute, aside from the commissions, comprise $450 expended in 1913 by appellant in rebuilding the house and $321.72 expended in 1914 in rebuilding a com crib on the 120 acres, which were occupied by John B. Bobinson. These repairs were paid for out of moneys deposited in the Bank of Ayers Bros., Moweaqua, Illinois, from the rents received as directed in the 7th paragraph of the will. The objection to the payment of these moneys out of said funds is that under the will the executors had no power to make any such repairs, and when said funds were once deposited in said bank, they could not be withdrawn therefrom for such purpose.</p>

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

<p>1. Equity, § 36<5*-^what not admitted by want of replication. While it is true that upon a hearing on a hill and answer, when no replication is filed to the answer, the averments of facts in the answer are taken to he true, yet the want of a replication to the answer does not admit the legal conclusions of the pleader.</p> <p>2. .Statutes, § 279*—when foreign statutes must be pleaded and proven. Judicial notice will not be taken of foreign statutes, but they must be pleaded, and, if not admitted, proven.</p> <p>3. Descent and distribution, § 9*—what State law governs. As the rule that distribution of personal property is to be made in accordance with the law of the domicile of the testator or intestate, as the case may he, prevails in this State and likewise in California, distribution of the Illinois personalty of the estate of a deceased wife, resident in California, was properly made in the proportion of half to the California husband and half to the Illinois brothers and sisters, notwithstanding the conclusion as to the California law of descent in the husband’s answer which, admitting the California law in part as set out in the petition, stated that certain additional sections of such law set out by him permitted “the property to descend according to the Illinois law of descent, which provides the surviving husband takes all.”</p> <p>4. Partition, § 66*—when court may retain jurisdiction on death of party after entry of order of distribution of personalty involved. The trial court in a partition suit involving the distribution of personalty, in which one of the. heirs died after the entry of the order of distribution, was well within its power in retaining jurisdiction without directing the funds to he distributed through the process of. administration.</p>

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

<p>1. Religious societies, § 39*—when expulsion of member damnum, absque injuria. Loss suffered by a person by reason of his being expelled from a church membership was damnum absque injuria.</p> <p>2. Religious societies, § 39*—when injury to member by expulsion not remediable. In trespass against bishops of a church for expelling plaintiff from membership, where damages were- sought because such expulsion caused plaintiff’s father-in-law to break a contract he had with plaintiff, the injury was not one for which redress could be had in a civil court.</p> <p>3. Action on the case, § 11*—when breach of contract not attributable to expulsion from religious society. In trespass against bishops of a church for expelling plaintiff from membership,- where damages were claimed because such expulsion caused plaintiff’s father-in-law to break a contract he had with plaintiff, the fact that between the act of defendants and the damage sustained, there was the intervening belief of the father-in-law which caused him to prefer to evict plaintiff rather than oppose the decree of the church, broke all connection between the alleged wrongful expulsion and the damage.</p>

<p>Appeal from the City Court of Canton; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1918.</p>

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

<p>1. Religious societies, § 39*—when equity uAthout jurisdiction to compel restoration of membership. Equity had no jurisdiction, against bishops and ministers of a voluntary religious organization, to restore to membership a member who had been expelled pursuant to a church trial, where the bill alleged that under the decree pronounced against complainant the rest of the membership, including members of complainant’s family, were bound not to deal religiously, socially, financially or otherwise with complainant, but did not pray for relief as to financial loss.</p> <p>2. Religious societies, § 39*—when equity without jurisdiction to compel restoration of membership. Where the sole object of a bill which in effect was one to restore' complainant to membership in a voluntary religious organization from which he had been expelled pursuant to a church trial provided by the doctrines or rules of such organization, it followed that no civil or property rights were involved, and equity had no jurisdiction even though under the demurrer the defendants admitted that they practiced “tyranny, force, fraud, oppression or corruption” on complainant.</p>

<p>1. Judgment, § 681*—what is effect of special replication to plea of former adjudication. Where plaintiff filed a special replication to a plea of former adjudication by a foreign court, filed in an equity case, he admitted the entire sufficiency of the plea, as his special replication seeking to avoid the effect of the adjudication was, under equity rules, treated as a general replication, and the only question then remaining was whether the chancellor erred in finding that the plea had been proved; and as complainant consented to a trial on the plea and offered in evidence the proceedings of such foreign court, he placed himself where he admitted the legal sufficiency of the plea and then offered in evidence the proof of the truth of the plea.</p> <p>2. Judgment, § 681*—rule that special replications not permissible in chancery applied to special replication to plea of former adjudication. The rule that special replications are not permissible in chancery and, if filed, can only be treated as general replicar tions, applied, where complainant replied specially to a plea of former adjudication in an equity case, setting up matter in avoidance of the adjudication, and such replication was treated as a general one and as an admission of the legal sufficiency of the plea.</p>

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

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

<p>1. Trusts, § 142*—when trustee under mil liable for commission of agent finding purchaser for land. A trustee under a will, with-power to sell real estate, had power to employ an agent to find a purchaser, and was liable to him for commissions upon finding a purchaser.</p> <p>2. Trusts, § 137*—when trustee under will does not delegate powers of sale to agent. The rule that a trustee under a will cannot lawfully delegate his powers of sale to an agent had no application to the employment by a trustee of an agent to find a purchaser, where such agent neither conveyed the lands as agent of the trustee, nor executed the contract on the trustee’s behalf.</p> <p>3. Trusts, § 137*—when trustee may employ solicitors and agents. Although trustees may not in general delegate their powers, yet they may employ solicitors and agents to do ministerial acts, such as the sale of property and acts of that nature, the trustees retaining a supervisory power over them.</p> <p>4. Trusts, § 221*—when trustee entitled to credit for payment of commission to agent. An agent employed by a trustee to sell real estate had the right to retain her commission and remit the balance to the trustee; and her compensation being a legitimate debt of the trust estate and one which the trustee had authority to contract as such, such trustee was entitled to receive credit in its accounting of the trust funds for such payment.</p> <p>5. Tbusts, § 221*—when trustee may indemnify himself out of estate. A trustee who is compelled to discharge the debt of the trust estate in his personal capacity may lawfully indemnify himself out of such estate.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1918.</p>

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

<p>1. Appeai, and ebrob, § 1820*—what is duty of trial court on remand with directions to modify decree. On remand, it is the duty of tlie trial court to modify a decree as directed by the opinion of the Appellate Court, and in no other manner.</p> <p>2. Appeai, and error, § 1820*—what modification of decree, on remand with directions error. Where a decree was affirmed 'in all respects except in so far as it directed' the payment of any sum out of the funds in the hands of trustees, as to which it was reversed with directions to modify the decree eliminating the provision, it was error for the trial court upon remand to change or modify the amount found due in the original decree by recasting the interest by computing it at a larger rate.</p>

<p>1. Gaming, § 43*—what determines intention of Board of Trade transaction. Where an administrator sought to avoid a note given by his intestate, on the ground that the transaction in question was a gambling deal on the Board of Trade, and where defendant claimed that there was no direct evidence of the intention of the decedent as to the making or receiving delivery of the commodity, the intention was determined from the nature of the transaction and other facts and circumstances in connection therewith.</p> <p>2. Gaming, § 10*—when Board of Trade transaction is gambling transaction. Where a decedent, who at the time of entering into the transaction in question, was worth about $10,000, and raised between 8,000 and 9,000 bushels of corn of which he fed 2,000 and sold the balance at elevators, and had one crib accommodating about 2,000 bushels of corn and a granary which would hold 300 bushels of wheat or oats, bought 625,000 bushels of corn then worth $598,206.50, and no warehouse receipt was ever delivered to him and he never paid anything except sufficient to cover his margins, the transaction was a gambling transaction, which avoided a note given by him in settlement of his losses.</p> <p>3. Judgment, § 359*—when decree refusing to vacate judgment based on gambling note will be set aside. Where facts and circumstances shown by the evidence, in a bill to vacate a judgment rendered in the Probate Court against the administrator of the estate of the maker of a note and to require the note to be delivered up and canceled, clearly proved that the transactions between the parties were nothing but gambling deals on the Board of Trade which could not be disguised by the testimony of one of the parties that they were legitimate contracts for the purchase and sale of grain, a decree dismissing the original bill for want of equity and rendering a money judgment on defendant’s cross-bill was set aside.</p>

<p>1. Commerce, § 4*—when pipe fitter works under Federal Employers’ Liability Act. A pipe fitter, employed by an interstate common carrier in repairing an engine while it was on a sidetrack preparatory to its being used to pull a passenger car between States, was engaged in interstate commerce and was working under the Federal Employers’ Liability Act.</p> <p>2. Commerce, § 4*—when employee is engaged in interstate commerce. To be engaged in interstate commerce, an employee need not be directly working in the transportation of goods from one State to another or in the operation and movement of trains; if he is engaged in the operation, maintenance or repair of any of the instrumentalities used by the carrier in the transportation of goods from one State into another, he is engaged in interstate commerce.</p>

<p>1. Master and servant, § 833*—when sustaining of demurrer to special pleas harmless. The sustaining of a demurrer to six special pleas of assumed risk and contributory negligence, even if erroneous, was harmless, where there were three other pleas on which issue was joined setting up the same defenses.</p> <p>2. Master and servant, § 302*—when employee does not assume risk of negligence of fellow employee. Under section 3 of the Federal Employers’ Liability Act [Call. 1916 Stat. j[ 9096(3)], providing that “contributory negligence shall not bar a recovery,” the fellow-servant doctrine is no longer available as a defense, and consequently the injured employee does not assume the risk of the negligence of his fellow employee.</p> <p>3. Master and servant, § 832*—when verdict of jury controlling on question whether accident occurred while employee was acting in scope “of employment. In an action based upon the Federal Employers’ Liability Act, the verdict of the jury was controlling upon the disputed question whether or not the accident occurred while plaintiff was acting in the scope of his employment.</p> <p>4. Appeal and error, § 1506*—when refusal to permit answering of question on cross-examination harmless. An objection that the refusal to permit plaintiff in a personal injury case, who had testified that he was nervous, to answer a question on cross-examination as to whether he was nervous as he sat in the witness chair, was an abuse of discretion and reversible error, was trivial.</p> <p>5. Trial, § 102*—when refusal to strike testimony not error. The refusal to strike testimony of plaintiff, in an action for injuries sustained by being thrown by the jerk of the engine on which he had climbed to adjust the dimmer on the headlight, that a great amount of steam was taken in the cylinders of the engine in question, and that such engine went forward with a sudden motion, that it went a certain distance and then there was a jerk by the weight of the train, on the ground that the statement was a conclusion and was the only evidence tending to show that the engineer started the engine, was not error, where there was other evidence to show the same fact.</p> <p>6. Damages, § 179*—when testimony hy plaintiff’s housekeeper as to plaintiff's physical condition competent. Testimony of the housekeeper of plaintiff in a personal injury case, who cared for plaintiff after he came home from the hospital, describing plaintiff’s physical condition, was competent.</p> <p>7. Appeal and error, § 1165*—when assignment of error not considered. An assignment of error based upon the refusal to admit evidence offered by defendant in error on the examination of certain witnesses was not considered, where the questions were both leading and suggestive, and where no offer was made as to what it was expected to prove by the witnesses.</p> <p>8. Appeal and error, § 1066*—when assignment of error that verdict was excessive is not open to review. An assignment of error that a verdict was excessive, was not open to review, where the verdict for $20,000 was remitted to $15,000, and there was no assignment of error questioning the amount of the judgment.</p> <p>9. Damages, § 125*—what damages for loss-of leg are merely compensatory. Damages of $15,000 were no more than compensatory where a man 22 years old, strong and robust, making from $80 to $100 per month, lost a leg, was in a hospital 6 weeks and at the trial, 9 months later, was still unable to work.</p>

<p>Error to the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Waltes Bbeweb, Judge, presiding. Heard in this court at the April term, 1919. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Parent and child, § 11*—when indictment for failure to provide for support of child sufficient. An indictment in the language of Hurd’s Rev. St. 1917, ch. 68, sec. 27, p. 1657 [Call. 1916 Stat.</p> <p>If 3433(1)], making it a criminal offense for any person to neglect to provide for the support of his or her child under 18 years in necessitous circumstances, and containing all material allegations and fully informing defendant of the crime charged, was sufficient.</p> <p>2. Pabent and child, § 11*—what not defense to indictment for failure to provide for support of child. A father was not relieved from his duty to support his child under 18 years in necessitous circumstances, who resided with his mother, where each parent claimed that their separation was the fault of the other; nor was it a defense to an indictment under Hurd’s Rev. St. 1917, ch. 68, sec. 27, p. 1657 [Call. 1916 Stat. U 3433(1)], for neglect to support such child, to fix the blame of the separation upon the mother.</p> <p>3. Husband and wife, § 273*—ivhen desertion 6y wife is defense to prosecution for failing to support her. The fact that a wife deserts her husband and refuses to live with him is a good defense to a criminal prosecution for not supporting her, as a husband is obliged to support his wife only at his domicile and not at such a place as she may choose to live.</p> <p>4. Pabent and child, § 11*—who may commit statutory offense of failing to provide for support of child. The words “any person,” in Hurd’s Rev. St. 1917, ch. 68, sec. 27, p. 1657 [Call. 1916 Stat.</p> <p>K 3433(1)], making it a criminal offense for any person to neglect to support his or her child under 18 years in necessitous circumstances, means the father or mother, and the offense described in such act may be committed by either or both parents.</p> <p>5. Pabent and child, § 11*—what not defense to prosecution for failure to provide for support of child. The fact that a child under 18 years was being cared for by his grandparents was no defense in a prosecution against the father, under Hurd’s Rev. St. 1917, ch. 68, sec. 27, p. 1657 [Call. 1916 Stat. ]f 3433(1)], for failure to support such child.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>1. Insane persons, § 28*—when conservator may make final settlement of ward's estate. The plain meaning of Hurd’s Rev. St. ch. 86, sec. 9, as amended (J. & A. 1f 7293), giving the conservator of any deceased incompetent power, under the letters issued to him, to make final settlement of the estate, is that it shall only apply to estates of persons dying intestate, or possibly those estates where the testator may have left a will but appointed no executor.</p> <p>2. Insane persons, § 28*—when conservator may not make final settlement of ward’s estate. Under Hurd’s Rev. St. ch. 86, sec. 9, as amended (J. & A. 1f 7293), giving the conservator of any deceased incompetent power, under the letters issued to him, to make final settlement and distribution of the estate, the conservator of the estate of a deceased person, leaving a will appointing an executor, had no right to administer the estate and carry out the provisions of the will as against the executor named therein, who was ready, able and willing to act.</p> <p>3. Insane persons, § 28*—when conservator may not make final settlement of ward’s estate. Hurd’s Rev. St. ch. 86, sec. 9, as amended (J. & A. 1f 7293), giving the conservator of any deceased incompetent power, under the letters issued to him to make final settlement and distribution of the estate, and Hurd’s Rev. St. ch. 3, sec. 1 (J. & A. If 49), providing for the issuance of letters testamentary pursuant to the probate of a will, and section 2 (J. & A. V 50), requiring any person knowing he is appointed executor to present the will and cause it to be approved, or to present the will and refuse to act, were all given effect without giving any strained construction to any of them; and the conservator of a deceased incompetent was held not entitled to administer the estate of his ward as against the executor under the last will of such ward.</p> <p>4. Executor and administrators, § 20*—when named executor entitled to letters. The word “shall” used in Hurd’s Rev. St. ch. 3, sec. 1 (J. & A. f 49), providing that upon probate of a will the court shall issue letters to the executor named in the will, etc., is used in an imperative sense.</p> <p>5. Statutes, § 225*—“shall.” In common ordinary meaning the word “shall” has always a compulsory .sense, though at times, upon sufficient reason, it may- be construed as having only a permissive or directory meaning.</p> <p>6. Statutes, § 225*—“shall.” When the word “shall” is used with reference to any right or benefit to any one, and the right or benefit depends upon giving a mandatory meaning to the word, it cannot be- given a permissive meaning.</p> <p>7. Statutes, § 197*—when all of sections of statute will he given effect. In the construction of statutes, the courts will so construe the sections of a statute as to give them all legal effect, if this can be done.</p> <p>8. Executors and administrators, § 20*—when legatees and devisees may not nominate executor. The law does not give to legatees and devisees ulider a will the right to nominate who shall act as the executor thereof, where the testator has already named some competent person to act in said capacity, who is ready, willing and able to act.</p>

<p>1. Husband and wife, § 280*—when direction of verdict for defendant, sued for alienation, will he error. Where the sole testimony of a husband who was plaintiff in a suit for the alienation of his wife, with all the reasonable inferences to be drawn therefrom, fairly tended to prove the allegations of his declaration, and where the evidence offered by defendant was purely contradictory excepting that as to the reputation of plaintiff’s wife, it was error to direct a verdict for defendant at the close of all the evidence.</p> <p>2. Husband and wife, § 280*—when directed verdict for defendant, sued for alienation, will he set aside. In an action to recover damages for the alienation of plaintiff’s wife, a directed verdict for defendant was set aside, where plaintiff was the sole witness as to occurrences between defendant and plaintiff’s wife, and where the evidence offered by defendant was purely contradictory of plaintiff’s evidence, excepting that offered as to the wife’s good character.</p> <p>3. Trial, § 216*—what court should determine on motion to direct verdict. On motion to direct a verdict, the court should not weigh the evidence as it does on a motion for new trial, but should simply determine as to whether or not there is any evidence in the record fairly tending to prove the allegations of the declaration.</p> <p>4. Witnesses, § 31*—when error to admit testimony of wife in action for alienation. Under Hurd’s Rev. St. ch. 51, see., 5 (J. & A. 1i 5522), relating to the competency of husband or wife as witnesses for one another, it was error to allow plaintiff’s wife to testify over objection on behalf of defendant in the action in question for the alienation of plaintiff’s wife.</p>

<p>Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding. Heard in» this court at the March term, 1919.</p>

<p>1. Roads and bridges, § 163*—when question of power to tax not in issue in mandamus to restore bridge. In mandamus against a highway commissioner to restore a bridge which had been washed away, there was no occasion to discuss the power to direct the levying of taxes or borrowing money, where it appeared from the evidence that there was sufficient money on hand at the time of the trial to build the bridge in question.</p> <p>2. Roads and bridges, § 163*—when commissioner of highways will be required by mandamus to rebuild bridge. A commissioner of highways was required by mandamus to rebuild a bridge which had been washed away, where, as the record stood, the bridge was needed and there was sufficient money on hand with which to build it.</p> <p>3. Roads and bridges, § 163*—what is effect of testimony of highway commissioner on mandamus to rebuild bridge. In mandamus against a highway commissioner to rebuild, a bridge which had been washed away, and which was needed, where the question as to whether money to build the bridge was on hand was material, and where there was sufficient money on hand, testimony of the commissioner to the effect that the money could he used elsewhere manifested no disposition on such commissioner’s part to exercise his discretion and use it in some other place, nor was it proof that the money was needed elsewhere.</p> <p>4. Roads and bridges, § 163*—who required to rebuild bridge. The fact that the Supreme Court held it to be the duty of drainage commissioners to rebuild a bridge after removing the former one did not, after such rebuilding, place a greater burden on the town in question than had existed when such former bridge was in its place, and the continuing, duty was thereafter on the town to maintain the rebuilt bridge; and where such bridge was subsequently washed away, the road commissioner and not the drainage district was required to rebuild it.</p> <p>5. Roads and bridges, § 158*—duty to repair bridges. The question of the duty of repairing bridges and on whom the duty devolves, together with a definition of the word “repair,” discussed.</p> <p>6. Roads and bridges, § 158*—who required to repair roads and bridges. Whatever is practicable in the way of repairing the roads and bridges is a duty on the towns and districts to be performed by the commissioners of highways of the town or district as the case may be.</p> <p>7. Roads and bridges, § 158*—meaning of “practicable?’ as used in statute. The word “practicable” in Illinois Road and Bridge Law, Call'. 1916 Stat. 1f 10000(50), suhd. B, clause 6, providing that highway commissioners shall have power and it shall be their 'duty to have general charge of roads and bridges of their districts, to keep same in repair and to improve them so far as practicable, means that the commissioners are required to keep the roads and bridges in repair and improve them so far as that work may be performed.</p> <p>8. Roads and bridges, §§ 154, 159*—When-discretion of road commissioners is subject to control by mandamus. The discretion given to road commissioners as to the use of their judgment in building and repairing roads and bridges is subject to control by mandamus, if abused.</p> <p>9. Roads and bridges, § 161*—what not within authority of county superintendent of highways in matter of letting contract for construction or repair. The provision of the Road and Bridge Act that no contract shall be let by the road commissioners for the construction or repair of any road or bridge in excess of $200, etc., without the approval of the county superintendent of highways, Call. 1916 Stat. j[ 10000(50), suhd. B, clause 5, did not give such superintendent any part in determining the necessity for the work to be done, nor did it give him any authority in determining whether it should be done.</p>

<p>1. New trial, § 9*—when question of error in overruling motion for default judgment cannot he raised in motion for new trial. Error in overruling of a motion for a default judgment, on the ground of the insufficiency of the affidavit of merits, was not a question which could be raised in a motion for a new trial, even though the order refusing such judgment was excepted to.</p> <p>2. New trial, § 9*—When questions arising on rulings prior to hearing on merits not raised hy motion for new trial. A motion for a new trial does not raise any question arising on any ruling of the court before the hearing on the merits of the case, as questions arising preliminary to the submission to the jury are to be determined summarily by the court, and the rulings are subject to review if properly preserved in the record.</p> <p>3. Instructions, § 131*—when error to give instruction ignoring issue. In an action on a note, in which defendant claimed that the note was not filled out according to his directions, and plaintiff claimed ratification, it was error to give an instruction for defendant ignoring the question of ratification.</p> <p>4. Instructions, § 131*—when instruction erroneous as ignoring issue. In an action on a note, in which defendant claimed that the note was not filled out according to his directions, and plaintiff claimed ratification, an instruction stating in substance that before plaintiff could recover the jury must believe that defendant author, ized a named person to fill out the note, and that unless such person filled out the blanks strictly according to the authorization of defendant the jury should find for defendant, was mandatory and was reversibly erroneous in that it ignored the question of ratification.</p> <p>5. Instructions, § 129*—when mandatory instruction insufficient in contents. A mandatory instruction must be complete' in its statement of facts which will justify a verdict, and if any material fact or requirement is omitted, it will be erroneous, and it is not cured by others.</p> <p>6. Instructions, § 118*—when contention not based on evidence need not he covered. In an action on a note, in which plaintiff claimed there was the question of collusion between certain witnesses, it was not error to exclude that question in instructions given for defendant, where there was no testimony in the record on which to base such contention.</p> <p>7. Appeal and error, § 452*—When alleged error in excluding documentary evidence is not available on appeal. A party who offered documentary evidence, generally, was precluded from claiming on appeal that the court erred in excluding such evidence on the ground that it was offered hy way of impeachment.</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 October term, 1918.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Oscar Hebbl, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Cabbiebs, § 438*—what constitutes contributory negligence on part of passenger crossing behind car from, which he has alighted. Contributory negligence in fact, if not in law, was established where a passenger with impaired hearing, familiar with conditions, alighted at a point 25 feet from a crossing, from the rear platform of a southbound street car while it was still moving, and, having looked north when he boarded the car a number of blocks away from his place of alighting, saw no car less than a half a mile away, did not look again to the north and was struck by a car approaching on the same track, which was from 7 to 30 feet away when he started to cross.</p> <p>2. Cabbiebs, § 438*—when passenger crossing behind car after alighting therefrom, must loolo for approaching ear. The time for a passenger, who attempted to pass behind the car from which he had alighted, to use ordinary care to discover whether he was in danger of an approaching car upon the same track, was not when he originally boarded the car but when he was in danger, that is, when he was about to step upon the track.</p> <p>3. ' Cabbiebs, § 438*—when passenger crossing behind car after alighting therefrom is guilty of contributory negligence. A passenger who, after alighting from a street car 25 feet north of a crossing, passed behind the car and in front of another car coming on the same track, owed the duty to look before stepping on the track, and his failure to do so was contributory negligence, although he claimed that, upon looking back when he was a number of blocks away, he saw no car within a distance of half a mile, and that before crossing he looked to see whether a car was coming on the farther track, a danger less imminent.</p> <p>4. Negligence—doctrine of “last clear chance” as not obtaining-in this State. The “last clear chance” doctrine does not obtain in this State, the rule here being that where the negligence of the injured party contributes in any degree to bring about his injury, he cannot recover unless the conduct of the other party is wilful and wanton.</p> <p>5. Cabbiebs, § 438*—when question of priority of right of crossing between alighting passenger and approaching street cos' does not arise. The question of the priority of the right of crossing as between a passenger who had alighted from a car and was attempting to pass behind it, and a car approaching on the same track, did not arise, where the passenger voluntarily got off from his car while it was in motion and 25 feet away from the crossing.</p>

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

<p>1. Wills, § 171*—when beneficiary-executor not estopped to file bill to set aside codicil. The right to contest a will being a right conferred by statute, and one given to “any person interested,” a beneficiary under a will, who was also an executor, was not, upon the theory that he could not be heard to deny the validity of the codicil while acting as a qualified executor of the will, estopped from filing a bill to set aside a codicil to such will, the effect of which was to diminish his legacy, and neither his right of action nor the right to enforce it was affected by his subsequent resignation and discharge as an executor.</p> <p>2. Wills, § 170*—rule that representative of estate is proper party to sue applied. The rule that the representative of the estate is the appropriate party to institute proceedings seeking relief on behalf of the estate, as to a gift, applied so as to sustain the special demurrer to that part of the bill in question, seeking relief on behalf of the estate as to a certain gift.</p>

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

<p>Error to the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.</p>

<p>1. Injunction, § 395*-—wii,en proper to tax costs against complainant on remand by Supreme Oourt. On an appeal from an order allowing a certain sum of money to defendants on the suggestion of damages entered by the defendants after the vacation by the Supreme Court of the injunction order, held that the taxation against the complainants of costs incurred in the Supreme Court, and expenses incurred in taking and reporting testimony before a master in chancery, was proper, where part of the mandate was that the decree be reversed and the cause remanded with directions to dismiss the bill.</p> <p>• 2. Injunction, § 393*—when order of Supreme Oourt requires dissolution of injunction. An order of the Supreme Court in a proceeding in which an injunction had been granted, directing the trial court to dismiss the bill, necessarily required that court to dissolve the injunction.</p> <p>3. Injunction, § 395*—when trial court may permit filing of suggestion of damages upon reversal by Supreme Court. Where an injunction had been issued upon the filing of a bond, it was proper for the trial court, upon reversal by the Supreme Court, to permit the filing of suggestion of damages, and to retain jurisdiction of the case until questions arising thereunder were determined.</p> <p>4. Appeal and error, § 717*—when evidence should be preserved. A party in whose favor a decree has been entered should preserve the evidence upon which such decree is based, unless the decree is supported by a finding of facts made therein.</p> <p>5. Appeal and error, § 1727*—when decision of Supreme Court regarded on subsequent appeal to Appellate Court as final. In an injunction proceeding involving consideration of a freehold interest in land, where the Appellate Court acted upon the face of the bill and was therefore not called upon to determine the merits of the controversy, that court merely had before it the question of the propriety of the order of the trial court granting the injunction, but the truth of the allegations of the bill was properly before the trial and Supreme Courts, and the decision of the latter was final as to complainants’ rights under the bill, and was so considered upon a subsequent appeal to the Appellate Court from an allowance of damages on the dissolution of the injunction.</p> <p>6. Injunction, § 395*—what correct rule of damages on vacating of injunction when rents involved. On a suggestion of damages upon vacation of an injunction, where the rental value of certain premises was involved, the correct rule of damages was the reasonable rental value and not the amount of rents actually received by persons not entitled thereto.</p> <p>7. Injunction, § 395*—when solicitor’s fees and court costs properly allowed upon suggestion of damages. Solicitor’s fees and court costs incurred by the defendants, in an effort made in good faith to dissolve the injunction in question, were properly allowed upon suggestion of damages.</p>

<p>1. Municipal Court of Chicago, § 19*—vahen court has no power to vacate judgment after expiration of SO days. Under section 21 of the Municipal Court Act (J. & A. jf 3333), providing that a judgment shall not be vacated after 30 days from the time of its entry, excepting on appeal, etc., or by a petition to said Municipal Court, such court had no power to vacate a judgment after the expiration of 30 days, where the petition, filed 4 months after its entry, alleged that after the suit had been continued 8 times, judgment was entered because plaintiffs counsel had not kept an agreement to the effect that defendant’s counsel would not be required to pay any attention co the case until the sufficiency of an affidavit of merits to be filed had been passed on, and where the answer denied any such agreement.</p> <p>2. Municipal Couet of Chicago, § 19*—what petition to vacate judgment must show. Where the motion to set aside a judgment, filed after the expiration of 30 days from the date of its entry, under section 21 of the Municipal Court Act (J. & A. jf 3333), is supported by the petition provided for in said section, it must be affirmatively shown in such petition that the judgment was not only inequitable and the result of fraud, accident or mistake, but also that the judgment was not due to any negligence on the part of the petitioner.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John K. PRiNDivrLUE, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>1. Executors and administrators, § 319*—what is preferred claim, against attorney's estate. Property belonging to a minor received by an attorney under authority of an order of a foreign court entered in the estate of a minor, and while acting in the place of the nonresident guardians, was received in trust for the minor, and in converting the property to his own use the attorney was guilty of a breach of that trust, and the debt against the estate of such attorney was a fiduciary debt, and allowable as a preferred debt in the administration of such attorney’s estate.</p> <p>2. Executors and administrators, § 326*—when claim, against attorney’s estate allowable as one of sixth class. A claim against the estate of an attorney who had received money of a minor pursuant to order of a foreign, court, and while acting in the place of the nonresident guardians, was properly allowed by the Circuit Court as a claim of the sixth.class, as money received in trust.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Habrt P. Dolan, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>1. Insurance, §§ 746, 748*—where contract of member of benefit society found. The contract between a benefit society and its members is contained in the certificate, if there be one, the constitution and by-laws, and the statute of the State under which' the society is formed.</p> <p>2. Insurance, § 749*—when by-law within scope of objects of benefit society. Under the charter of a benefit society, stating the object of the society to be “mutual aid and assistance to its members and their families,” etc., a by-law providing for the payment of funeral expenses and a payment to the family at the time of the member’s death was clearly contemplated by and within the scope of the objects of the society.</p> <p>3. Insurance, § 749*—when contract of benefit society for death claim will be valid. The contract for a death claim, of a benefit society organized under the act of 1872 (J. & A. If 2418 et seq.), which gave no power to do business of a fraternal beneficiary society, was recognized as legal and enforceable, after the passage of the Fraternal Beneficiary Act of 1893 (J. & A. If 6646 et seq.), which gave such power.</p>

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

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

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

<p>1. Landlord and tenant, § 206*—when landlord not required to make repairs. In this State the rule of caveat emptor applies in the letting of property, and the landlord is not bound to make repairs unless he has agreed to.</p> <p>2. Landlord and tenant, § 226*—when landlord required to notify tenant of defects. Where there are concealed defects in demised premises at the time of the letting, which are dangerous to the tenant but which are unknown or which a careful examination would not disclose to the tenant, hut the condition is known to the landlord, it is his duty to notify the tenant, and for a failure to so notify, the landlord is liable for whatever damages the tenant suffers therefrom; but no such duty is imposed upon the landlord to notify the tenant of defects which the landlord discovers after the beginning of the tenancy.</p> <p>3. Landlord and tenant, § 257*—when declaration in action for injuries from defect in premises does not state cause of action. A declaration in an action by a tenant for injuries sustained by the giving way of a railing in connection with premises occupied by him under a sublease containing no covenant to make repairs, against the landlord’s assignee, stated no cause of action, in the absence of an averment that the railing was known to have been defective at the time of the making of the original lease, or at the time of the-making of the sublease, the only allegation having been that defendant knew, or in the use of due care should have known, of the defective condition on or before the date of the accident.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Os cab E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.</p>

<p>1. Contracts, § 206a*—rights of third person for whose benefit contract was made. Where a contract is entered into by two parties for the benefit of a third, the third party’s rights are subject to the ..equities between the original parties.</p> <p>2. Contracts, § 349*—when third person for whose benefit contract was made cannot recover. Where a grocery company had entered into a contract with a contractor to furnish, do work and install fixtures in one of the company’s stores, and the contractor purchased the fixtures from a third party, and where, after the work had been found unsatisfactory, the grocery company and the contractor made a written agreement regarding, the completion of all work in consideration of the grocery company paying a stated balance, which included the amount due to such third party from the contractor, such third party could not recover from the grocery company the amount due it from such contractor, where the contract was not carried out by the contractor.</p>

<p>1. Death, § 18*—when grantor of property not liable for death of son of grantee’s tenant resulting from defect in property. The grant- or of improved property, which at the time of its sale, contained a water heater which had been installed without a permit as required by ordinance, and which had a defective ventilation pipe, was not liable for the death of the son of the tenant of a grantee, caused by the inhaling of gas which escaped because such pipe ended in the bathroom in question, instead of having an exhaust on the roof.</p> <p>2. Death, § 18*—when grantor of property not liable for death of son of grantee’s tenant resulting from defect in property. A hot-water heater in a bathroom was a fixture and went with the realty at a sale of the latter, and therefore the grantor was not liable for the death of the son of a tenant of his grantee, caused through defects in a pipe connected with such heater, the grantor having made no representation whatever to his grantee.</p> <p>'3. Death, § 18*—when grantor of property not liable for death of son of grantee’s tenant resulting from violation of ordinance by grantor. The fact that there was an ordinance in existence at the time of the sale of the real estate in question, requiring a permit for the installation of a water heater in a private house, did not give rise to any obligation on the grantor so as to render him liable for the death of the son of a tenant of the grantee caused by an improper use of such heater and its appliances, which had been installed without the permit required by such ordinance, because after the sale the ordinance bound the grantee but not the grantor.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, and Hon. S. C. Stough, Judges, presiding. Heard in this court at the April term, 1919.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. T. N. Gbeekt, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>1. Judgment, § 58*—when judgment by confession not vacated because of existence of defense to cause of action. A judgment by confession, on a note given in part payment of an automobile, was not vacated because after the service of execution upon defendants, plaintiff took possession of the automobile.</p> <p>2. Judgment, § 58*—when defense to debt is not available on motion to oyen judgment by confession. A defense to a debt arising after the entry of judgment by confession is not available on motion to open-the judgment.</p>

<p>Appeal from the City Court of Sterling; the Hon. Gael E. Sheldon, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>1. Mortgages, § 726*—time when judgment creditor with lien on equity of redenvption may redeem from deed absolute in form.. A judgment creditor with a lien on the equity of redemption of the mortgagor was entitled to redeem, before any judicial sale, from deeds in the form of absolute conveyances.</p> <p>2. Mortgages, § 716*—bill to redeem by judgment creditor with' lien on equity of redemption distinguished from bill under statute. A hill to redeem by a judgment creditor having a lien on the equity of redemption of a mortgagor has been recognized under long-established practice in chancery, and is not to be confused with redemption from judicial sales under chapter 77, secs. 18, 20 (Call. 1920 Stat. KIT 6764, 6766), under which the right does not depend upon any lien on the property, but exists solely by reason of the statute, and which does not begin until after sale, when the other right ends.</p> <p>3. Execution, § 40*—delay in issuing execution by death of debtor. Under section 2 of the statute on Judgments, Decrees and Executions (J. & A. If 6748), a creditor who had been delayed on account of the death of the defendant from issuing execution did not lose his lien.</p> <p>4. Mortgages, § 716*—when offer to pay in bill to redeem is sufficient. In a bill to redeem by a judgment creditor of the mortgagor, from a deed in the form of an absolute conveyance, the offer to pay anything due to the legal owner on an accounting was sufficient.</p> <p>5. Equity, § 211*—when general demurrer will he overruled. Where a bill in equity sets out various claims to the interposition of the court, and a general demurrer is filed, it will be overruled if any of the claims afford a proper case for the jurisdiction of the court.</p>

<p>1. Drainage, § 83*—when delay after filing of petition for dissolution of district is not unreasonable. A delay of 4 months after the filing of a petition of owners under section 47% of the act to provide drainage for agricultural and sanitary purposes, in force July 1,</p> <p>1885 (J. & A. If 4525), for the dissolution of the drainage district in question, was not an unreasonable time in which to allow the commissioners to examine the petition to ascertain whether it was in due form and signed by the requisite number of owners, whether all indebtedness of the district had been paid or funds provided therefor, and whether there was any litigation pending against the district.</p> <p>2. Drainage, § 83*—when signers of petition for dissolution of district may withdraw names. Signers to a petition filed under section 47% of the act to provide drainage for agricultural and sanitary purposes, in force July 1, 1885 (J. & A. If 4525), for the dissolution of the district in question, had the right to withdraw their names from such petition at any time before the commissioners finally acted upon such petition, and even after filing of a petition for mandamus to compel the entry of an order to compel dissolution and before the service of the summons.</p> <p>3. Pleading, § 129*—when replication in mandamus to compel dissolution' of drainage district departs from petition. Where, in mandamus to compel drainage commissioners to dissolve the district, relator alleged that certain village lot owners were landowners within the district and that such lots constituted a part of the territory of said district, and the commissioners filed pleas stating that they had refused to enter an order of dissolution because after certain withdrawals a sufficient number of signers did not remain, the relator could not in his replication make a different case and take the position that the organization of the village in question took out of said district all of the lots within said village, and that the owners of said lands and lots in the village had no right to sign the petition for dissolution and that therefore their withdrawal did not defeat it.</p> <p>4. Pleading, § 129*—when replication in mandamus to compel dissolution of drainage district departs from petition. In mandamus to compel drainage commissioners to enter an order dissolving the district, where the petition alleged that certain signers of the petition for dissolution were village lot owners and landowners in the 'district, and the commissioners answered that such village lot owners had withdrawn their names, a replication stating that after the forming of the district said village was formed and took within its boundaries a part of the land in the district and that therefore such owners had no right to sign the petition, made a new case; and the replication was further defective because it failed to aver that such village ever took upon itself the drainage of said lots within said village.</p> <p>5. Drainage, § 20*—district partly within and partly without municipality. A drainage district can he partly within and partly without a municipal corporation.</p>

<p>1. Abatement and bevival, § 54*—what is power of court on death of sole plaintiff. After the death of the plaintiff in the action in question and before a proper representative was in court, the court had no power to take any action in the case except such as would bring the representative before the court.</p> <p>2. Pleading, § 193*—when surplusage not ground for special demurrer. Surplusage, such as setting out irrelevant, immaterial and argumentative matter in a declaration, based on fraud and deceit, was not a ground for even a special demurrer.</p> <p>3. Pleading, § 367*—what questions cannot he raised hy motion to strike. Those matters which can be raised by demurrer, such as insufficiency in substance or form, cannot be raised by a motion to strike a pleading from the files.</p> <p>4. Pleading, § 225*—what new pleading, after sustaining of demurrer, cannot he filed. A party cannot be permitted, after a demurrer has been sustained to his pleading, to file another pleading in the same or substantially tlie same language, and which does not obviate the defect in the previous pleading.</p> <p>5. Fraud, § 78*—when declaration for fraud and deceit is defective. A count in a declaration in an action for fraud and deceit which failed to aver that the defendants knew the representations to be false was defective, and the defect was not cured by averments that the defendants either knew the representations to be false or that if they had exercised reasonable care they would have found out that they were false; but other counts in the declaration were held sufficient under stated qualifications and modifications of the general rule.</p> <p>6. Fraud, § 84*—when count in declaration for fraud and deceit in sale of corporate stock states cause of action. A count in a declaration in an action for fraud and deceit in the sale of corporate stock stated a cause of action, which alleged in substance that plaintiff to the knowledge of defendants was 65 years old, infirm and illiterate and without experience in buying or selling stock; that one defendant was a banker in plaintiff’s small town and had intimate knowledge of plaintiff’s affairs and was her confidential adviser; that such defendant entered into a conspiracy with the other defendant to swindle her; that both individuals represented that the corporate stock of $1,000,000 was fully paid up and that the stock was listed on the stock exchange and paid dividends; that the banker spoke highly of the other individual and the latter made like representations as to the corporation; that the plaintiff believed the banker’s statements because of her confidential relations with him, and believed the other defendant’s statements because of what the banker had said; that the representations were all untrue and known by each to have been untrue and that the stock was worthless; that after discovery of the fraud plaintiff tried to induce defendants to take the stock off her hands and tendered back the certificates.</p> <p>7. Fraud, § 22*—when puffing corporate stock not permitted. The rule that one selling property has a right to puff its value and that the purchaser will rely on such puffing at his own risk has no application to an aged and illiterate farmer woman who alleged that she was defrauded by her banker who was her confidential adviser, and by a ‘person whom such banker highly recommended, and who conspired together to defraud her by inducing her to purchase worthless corporate stock.</p> <p>8. Fraud, § 22*—when puffing not permitted. Puffing is permitted, but not where a fiduciary relation exists between the parties.</p> <p>9. Fraud, § 70*—lohen count in declaration for fraud and deceit not one in assumpsit. Allegations in one of a number of counts in an action for fraud and deceit in the sale of corporate stock, that two of the defendants had promised plaintiff to reimburse her, did not make the count» one in assumpsit which vitiated the whole declaration, as all that such averment meant was that the alleged promise was one of the inducements held out for the purpose of deceiving plaintiff and inducing her to invest in the worthless stock.</p> <p>10. Fraud, § 76*—when declaration must aver that representations were false. Review of authorities as to the modifications or qualifications of the rule that in an action for fraud and deceit the declaration must aver that the representations were false; and various counts in the declaration in question held sufficient.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Frank J. Johnston, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Charles M. Poell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Corporations, § 477*—when corporation liable for slander. A corporation is apparently liable for an oral slander by its agent, when uttered within the scope of his employment and in the performance of his duties in the course of transacting the business of the corporation.</p> <p>2. Principal and agent, § 221*—When allegation in action against principal for act of servant is sufficient. Where a principal or master is liable for the conduct of one acting for him, it is sufficient for the pleader to allege that the act of the servant or agent of the principal is the act of the person himself.</p> <p>3. Libel and slander, § 90*—when declaration in action against corporation for slander is sufficient. In a declaration in slander against a corporation, the allegation that the slanderous words were spoken by the corporation necessarily implied that they were spoken by an agent or servant of the corporation, and that he spoke them while acting within the scope of his employment.</p>

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