Volume 215 — Illinois Appellate Court Reports

<p>1. Municipal Court op Chicago, § 27*—when hill of exceptions will he stricken from record. A bill of exceptions was stricken from the record, where it appeared that the time for its filing expired on July 3 when it was marked as presented to one of the judges of the Municipal Court other than the trial judge and ordered to he filed, and where the signature to its completeness was dated September 3 following, nunc pro tunc July 3, and where subsequently the trial judge appended a statement dated September 24, that when the bill was so presented he was outside the State “taking a much needed rest” and so “unable” to hold court and sign such instrument, and that by long-distance telephone he directed that the judge to whom his cases were assigned should sign for him.</p> <p>2. Municipal Court op Chicago, § 27*—when signing of hill of exceptions after last day for filing will he unavailing. The signing of a bill of exceptions after July 3, which was the last day for its filing, and on which day it had been marked as presented by a judge other than the trial judge, with the use of the words nunc pro tunc, was unavailing when there was in fact no order to that effect and nothing apparently upon which it could be based.</p> <p>3. Appeal and ekbob, § 843*—when judge “disabled” from signing Mil of exceptions. Question, whether the absence of the trial judge by reason of “taking a much needed” rest, and being so “unable” to hold court and sign the bill of exceptions in question, was such a “disability” as is contemplated by section 81 of the Practice Act (J. & A. j[ 8618), providing for the signing of bills of exceptions, etc., by a judge other than the trial judge, in cases of disability, etc.</p>

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

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

<p>1. Automobiles and gabages, § 3*—when owner may replevy automobile distrained by municipal corporation for damage to latter’s property. The owner of an automobile was entitled to replevy such automobile from the bailiff of a municipal corporation known as Commissioners of Lincoln Park, who held it pursuant to a distress levied by such corporation because the automobile injured a light standard in Lincoln Park, and pending redress of the damage.</p> <p>2. Automobiles and gabages, § 2*—when municipal corporation cannot distrain automobile injuring such corporation’s property. A municipal corporation known as Commissioners of Lincoln Park had no right, under the common-law principle permitting the owner of land to distrain cattle, damage feasant upon said land, to distrain and hold an automobile which had run into and injured a light standard in the park, until the owner should make satisfaction for the damage done.</p> <p>3. Automobiles and gakages, § 3*—what is remedy of municipal corporation when automobile injures its property. The remedy for the damage done to property of a municipal corporation known as Commissioners of Lincoln Park by an automobile was by an appropriate action at law, and not by distress under the theory of damage feasant.</p>

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

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

<p>1. Cabbiebs, § 484*—when proper, in personal injury action hy passenger against elevated railroad company, to give instruction on care required of carrier. In an action for personal injuries sustained by plaintiff, who, after traveling as a passenger and while descending from defendant’s elevated railway station, slipped on a banana peel which lay on a stairway landing, an instruction was properly given which stated that in the management and operation of elevated trains and the management and maintenance of the platforms and steps and landings, etc., it was the duty of common carriers to exercise the highest degree of care, etc., consistent with the mode of conveyance adopted and its practical operation.</p> <p>2. Cabbiebs, § 460*—when doctrine of res ipsa loquitur applies in personal injury action hy passenger against elevated railroad company. The doctrine of res ipsa loquitur applied in an action for personal injuries against an elevated railroad company, where plaintiff, after traveling as a passenger and while descending to the street, slipped on a banana peel which lay on a stairway landing and sustained injuries.</p> <p>3. Cabbiebs, § 460*—when passenger, suing for personal injuries, malees out prima facie case against elevated railroad company. A prima facie case of negligence was made out by showing the happening of the accident, in an action by a passenger against an elevated railroad company for injuries sustained by plaintiff’s slipping on a banana peel which lay on a stairway which plaintiff was descending; and the burden of rebutting the presumption of negligence rested upon the defendant.</p>

<p>Appeal from the Criminal Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.</p>

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

<p>1. Landlord and tenant, § 217*—when error to direct verdict for lessees sued by landlord for money expended for repair of elevator. In an action by a landlord against his lessees to recover money expended in the repair of damage to an elevator through the lessees’ negligence, where the lease contained a covenant providing that the landlord should put the elevator in good condition and that the lessees should then keep it in good repair at their own expense, it was error for the court, who tried the case without a jury, to direct a verdict for defendants, where the lease was introduced and the evidence showed that the landlord had put the elevator in good condition and that it had been thereafter damaged by defendants.</p> <p>2. Trial, § 187*—what question raised by motion for directed verdict. In the trial of a case by the court without a jury, a motion for a directed verdict at the close of plaintiff’s case raises only a question of law as to the sufficiency of the evidence to sustain a verdict against the party making the motion; but the court may weigh the evidence, determine the question of the preponderance thereof and enter judgment accordingly, if the defendant plainly informs the court that such is his desire.</p> <p>3. Landlord and tenant, § 217*—time when landlord may sué for money expended for repair of elevator. Under a covenant in a lease that the elevator in the building in question should be maintained by the lessees at their own expense and kept in good running order during the term of "the lease, the landlord was not compelled to wait until the expiration of the lease before bringing action for money expended by him in the repair of damage to the elevator because of the lessees’ negligence..</p>

<p>1. CoKPOBATiorrs, § 170*—when assignment of corporate claim not shown. An assignment of the claim of an Athletic Association against another corporation to plaintiff was not shown, where it appeared that such assignment was5 claimed hy plaintiff to have been effected by reason of a contract between himself as the owner of 487% shares out of a total of 500, and third parties, to which the association was not a party, and where the evidence failed to show that at the time of making such contract, the association had by act either of its board of directors or of its proper and duly authorized officer, made any sale of its assets, or assigned the claim in question to him.</p> <p>2. Statutes, § 272*—when foreign law must he pleaded. In an action brought by the alleged assignee of a corporation, where defendant claimed there was no competent evidence of any assignment to plaintiff, the latter could not claim that the law of a foreign State should govern in determining the question whether or not a certain agreement amounted to an equitable assignment to plaintiff of the claim in question, the claimed law of such foreign State not having been pleaded or proved.</p> <p>3. Assignments, § 11*—when agreement cannot he construed as assignment. Even though the acceptance by a corporation of certain benefits under the agreement in question made by the holder of most of the stock, with third parties, without the consent of the corporation, be conceded as having amounted to a ratification by the corporation, the fact that under the agreement as it stood, moneys could be paid to the corporation upon the claim in suit, of which such stockholder claimed to be the assignee under said agreement, although the claim was not specifically mentioned, precluded the construction of such agreement as an assignment of such claim, either in law or equity.</p>

Interlocutory appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court. Statement by the Court.

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

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

<p>1. Appeal and error, § 1253*—when correctness of ruling on evidence not before court on defendant’s appeal. The correctness of the ruling in a malicious prosecution case, permitting the introduction of an indorsement by a municipal judge, on a complaint charging plaintiff with theft, that the judge examined the complaint and the complainant and was satisfied there was probable cause for filing the complaint, was not before the Appellate Court in view of the verdict for plaintiff.</p> <p>2. Malicious prosecution, § 14*—when rule as to judicial determination of probable cause not applicable. The rule that the finding of the court to whom a complaint was presented that there was probable cause is a judicial determination, and a bar to a suit for malicious prosecution, in the absence of evidence that such finding was procured by fraud or upon perjured testimony, had no application where the defendant in the action in question testified without objection that at the time the judge indorsed upon the complaint in question the statement that he had examined the complaint and the complainant and was satisfied that there was probable cause, he simply read the warrant and signed it and that no statement was made to him.</p> <p>3. Malicious prosecution, § 83*—-when probable cause question for jury. The question whether the defendant in the malicious prosecution case in question had probable cause under the circumstances disclosed by the evidence to suspect plaintiff of stealing his watch as charged, was for the jury.</p> <p>4. Malicious prosecution, § 13*—when advice of counsel no defense. Reliance on advice of counsel will not bar a recovery for malicious prosecution where the defendant was thoroughly and personally familiar with all of the facts in the case, and the advice was based upon a narration of facts thereafter testified to by defendant, and controverted by plaintiff, and which the jury by their verdict for plaintiff necessarily found to be false.</p>

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

<p>1. Executors and administrators, § 326*—when statute does not require funds to he hept separate and distinct. Rev. St. ch. 3, sec. 70 (J. & A. IT 119), providing that where a decedent has received money in trust, the amount received and not accounted for shall be paid out of the estate as a claim of the sixth class, does not require that the funds be kept separate and distinct before a claim therefor can be allowed as of such class.</p> <p>2. Executors and administrators, § 322*—when trust fund to he delivered without allowance as of any class. A trust fund kept separate and distinct by a decedent is not a part of his estate at all but is the property of the claimant and should be delivered to him upon order of the court and not allowed as of any class.</p> <p>3. Contracts, § 330*—what does not constitute waiver of agreement relative to moneys received from sales of money orders. Waiver of the provision of a written agreement between an express company and the decedent in question relating to the sale of money orders, that moneys so received should not be mingled with such decedent’s funds, was not shown by the acceptance of such decedent’s personal checks, nor because at one time, in the presence of the company’s collector, money was received by the decedent from the sale of an order and handed by him to his son who rang the amount up in the cash register.</p> <p>4. Corporations, § 387*—when notice to collector of express company not notice to company. Notice to the collector of an express company that money received in his presence by a druggist who was authorized to sell money orders for the company, but had no authority to mingle money so received with his own funds, was turned over by such druggist to his son who rang the amount up on the cash register, was not notice to the company that its funds were being mingled with the funds of such druggist.</p> <p>5. Corporations, § 387*—when notice to employees of corporation not notice to corporation. Notice to every employee of a corporation would not be held notice to the employer.</p> <p>6. Executors and administrators, § 326*—when trust funds need not he identified before claim allowed as of sixth class. It is not necessary to identify trust funds before a claim may be allowed against the estate of the trustee as of the sixth class.</p>

<p>1. Carriers, § 96*—when damages recoverable for delay in delivery of automobile. Damages for delay in the delivery of an automobile shipped over defendant’s railroad were properly awarded, although the automobile was used for pleasure only, and there was no evidence of pecuniary loss.</p> <p>2. Carriers, § 96*—when notice of intended use of automobile not necessary to recovery of damages for delay in delivery. No notice of the use for which a car shipped over a railroad was intended was required, where the owner sought no special damages for the delay.</p> <p>3. Carriers, § 110*—when rental value is measure of damages for delay in delivery of automobile. Rental value was properly allowed as the measure of damages for delay in shipping an automobile which was intended to be used for pleasure, although the evidence disclosed that plaintiff did not hire any other automobile except an occasional taxicab.</p>

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

<p>1. Appeal and errob, § 1862*—When surety on appeal bond of administratrix not released from liability. Under an appeal bond providing that if the named administratrix should duly prosecute her appeal with effect and pay the amount of the judgment, etc., to be rendered against her in case of affirmance by the Appellate Court, the obligation should be void, etc., the surety in an action on the bond could not escape liability on the theory that the obligation was discharged because the Probate Court had ordered the judgment paid and the administratrix had taken steps required by law to pay the judgment in due course of administration.</p> <p>2. Appeal and error, § 1859*-—when surety on appeal bond of administratrix estopped to show particular meaning of obligation. Under the rule that the maker of a bond is bound by the recitals therein whether they are true or false, the surety on the appeal bond in question was precluded from showing that the obligation to pay the judgment appealed from meant merely that the judgment be paid in due course of administration of the estate of which the principal In the bond was the administratrix.</p> <p>3. Appeal and error, § 1886*—when damages for delay awarded in action on appeal bond of administratrix. Damages for delay were awarded in an action on an appeal bond given by an administratrix, where, although the obligation was to pay the judgment in question, the defense was that it merely meant that the judgment be paid in due course of administration.</p> <p>4. Appeal and error, § 1859*—when surety on appeal bond given administratrix estopped to deny latter's representative capacity. Where the plaintiff, who sued as administratrix, was the obligee in the appeal bond in question, it was immaterial whether or not she was such administratrix at the time of commencing suit; and as the surety contracted with her, he was estopped to deny her representative capacity.</p>

<p>1. Guardian and ward, § 99*—when error, in action on guardian’s bond, to exclude evidence of money spent for support of ward. In. an action on a guardian’s bond to recover money alleged to have been converted by the guardian, who was the ward’s mother, it was error to refuse to admit evidence as to money spent by the mother in the support of her ward, outside of that paid by order of the Probate Court.</p> <p>2. Guardian and ward, § 16*—when guardian may expend money for necessaries without order of court. The credit to be given a guardian is not determined by any fixed rigorous standards, but by what is reasonable and equitable; and it is not necessary to obtain an order of court for leave to expend money for the necessaries of the ward, but the County Court should allow them when proven reasonable.</p> <p>3. Guardian and ward, § 31*—when ward may become indebted to guardian. A ward may become indebted to her guardian for necessaries as well as to a stranger.</p>

<p>1. Master and servant, § 770*—when'error to direct verdict for master sued for injuries to servant. A directed verdict for the defendant was improper in an action against an employer rejecting the Compensation Act for personal injuries sustained hy a rug packer, who while sitting on a box in the packing room in defendant’s store, waiting for his partner to assist him in packing, was struck by a bulky and heavy roll of linoleum which fell from its position of leaning against a wall, without being pushed or touched by any one.</p> <p>2. Master and servant, § 677*—when servant, suing for injuries, matees out prima facie case. A prima facie case of negligence, or at least one which should have been permitted to go to the jury, was made out, where a bulky and heavy roll of linoleum, which had been stacked against a wall in defendant’s store, fell from its position and struck an employee without having been pushed or touched by any one.</p> <p>3. Master and servant, § 775*—what improper to he considered on motion to direct verdict for master sued for injuries to servant. On a motion to find for the defendant in a personal injury case, the court improperly considered the probative effect of a statement in writing purporting to have been signed by plaintiff, which gave another version to the accident than that to "which he testified upon the trial.</p>

<p>1. Cabbiebs, § 82*—what constitutes delivery of car of apples. Where the only contract between a shipper and a common carrier called for delivery at Chicago, such delivery was accomplished by the placing of the car in question on defendant’s public delivery-team track and the giving of notice, and a subsequent order to forward the car to a given destination operated as a new contract.</p> <p>2. Cabbiebs, § 139*—what evidence necessary in action for damage to apples by frost. WGiere a car of apples was delivered for transportation to a common carrier, apparently in good condition, at Detroit on December 10, for delivery to the consignee at Chicago, and after arrival at the latter place at 11:20 a. m. on the 12th was placed on the public delivery track at 2 p. m. on the same day and the proper parties then notified, and after the car had remained upon the track for 48 hours the carrier was notified to forward the car to a given destination on another railroad, the consignee was not entitled to recover damage sustained by frost, in the absence of evidence showing that the shipment was damaged while in the possession of the initial carrier.</p> <p>3. Cabbiebs, § 92*—when shipment not regarded as continuous. A shipment was not considered as continuous and not completed until arrival at its ultimate destination, where the freight rate was not a through rate from the starting point on the Michigan Central at Detroit to its destination on the Illinois Central, but was made up on charges from Detroit to Chicago and the charge was assessed by the Illinois Central without any indorsement on the original contract of shipment extending it.</p>

<p>1. Banks and banking, § 59*—when owner of proceeds of draft entitled to preference on payment of claims by receiver. «Where a draft is forwarded for collection and remittance and the collection is made, the proceeds become a trust fund for the benefit of the forwarder, and in case of the failure or insolvency of the bank, the owner of the trust fund would be entitled to a preference over general creditors.</p> <p>2. Banks and banking, § 59*—when owner of proceeds of draft entitled to preference on payment of claims by receiver. Where a</p> <p>hank collected drafts for a shipper and deposited the trust money so received in another hank as its own, the presumption was that the money drawn out by the depositor was its own, and that the balance which remained included the trust fund which it had no right to use, and the shipper was entitled to have his claim allowed as a preferred claim to be paid by the receiver of such depositor bank, before paying any other claims of the general creditors.</p> <p>3. Banks and banking, § 59*—when mixing of funds does not deprive claimant of right to priority on payment of claims by receiver.</p> <p>Where it was conceded that a fund collected by a bank for its correspondent, and deposited in another bank as its own,, was impressed with a trust, the mixing of the fund with other ijunds in the possession of the latter bank so as to lose its identity did not preclude the owner of the fund from claiming priority over the general creditors of the depositor bank.</p> <p>4. Banks and banking, § 59*—when owner of proceeds of draft entitled to priority on payment of claims by receiver. One for whom a bank, before it failed, had collected a draft, was entitled to priority over general creditors, even if such bank had disposed of the identical proceeds before the receiver came into possession; and whatever such trustee bank had in its possession in various banks constituted the trust fund.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard ■ in this court at the March term, 1919.</p>

<p>Appeal from the Circuit Court of Cook county; ,the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>1. Street railroads, § 138*—when proper to direct verdict for defendant in action for wrongful death. A directed verdict for defendant would have been justified, where plaintiff’s intestate died as the result of being crushed between a truck on which he was riding and a street car of defendant, where it appeared that the truck, which had been too near the track to permit the car to pass, turned out a sufficient distance to enable it to so pass, and then, when it had begun to pass and was proceeding safely, the truck suddenly veered towards the track far enough to crush the decedent between the truck and the car.</p> <p>2. Street railroads, § 86*—when motorman not negligent in failing to anticipate movement of truck. A motorman could not be called negligent because of his failure to anticipate the unexpected swerving of a truck towards the track after it had turned out sufficiently to enable the car to pass.</p> <p>3. Workmen’s Compensation Act, § 3*—street car company as within act. A street car company comes within the Workmen’s Compensation Act of 1913.</p> <p>4. Workmen’s Compensation Act, § 18*—when proceedings and settlement under act lar action against third person. Where a decedent, his employer, and the street car company, between whose car and the employer’s truck decedent was crushed and killed, all came within the Workmen’s Compensation Act of 1913, and the administrator had instituted proceedings before the Industrial Commission for compensation on account of the accident and death, which had resulted in a settlement for a lump sum, which was paid, such administrator had no cause of action against the street car company.</p> <p>.5. Workmen’s Compensation Act, § 18*—when recovery under act lars action against third person. Under section 6 of the Workmen’s Compensation Act of 1913 [Cal. 1916 Stat. j[ 5475(6)], relegating an injured employee to recovery under such section, and section 29 [Cál. 1916 Stat. If 5475(29)], subrogating the employer to the right of recovery of the employee against a third person, an administrator, who had already recovered against his intestate’s</p> <p>employer under such act, could not also pursue an action against the third party under the Injuries Act.</p>

<p>1. Set-off and becotjpment—judgment on affidavit of merits to counterclaim. Section 55 of the Practice Act (J. & A. If 8592), providing that if the affidavit of defense is to only a portion of plaintiff’s demand, judgment may he entered for the balance, and the suit shall thereafter proceed as to the portion in dispute, did not authorize the court to enter judgment on defendants’ counterclaim for a part of defendants’ demand and to order that the cause proceed to trial as to the balance in dispute, where plaintiff’s affidavit of merits, although not setting forth a sufficient defense to a part of such counterclaim, did not admit the validity of any part of the claim within the purview of said section.</p> <p>2. Set-off and becotjpment—judgment on affidavit of merits to counterclaim. An affidavit of merits to a counterclaim which set forth that “affiant verily believes said plaintiff has a good and meritorious defense to the whole of defendants’ counterclaim; that the nature of said defense is as follows,” etc., did not warrant a judgment in fcyor of defendants under section 55 of the Practice Act (J. & A. 8592), although it failed to set forth a sufficient defense as to part of the claim.</p>

<p>1. Limitation of actions, § 23*—when indorsement does not take note out of operation of statute. A note which had under its terms been barred by the statute of limitations was not taken out of the operation of the statute by an indorsement that in case of the death of the maker it was to become payable on demand.</p> <p>2. Bills and notes, § 313*—when demand note 'without interest is due and payable. A demand note without interest became due and payable immediately upon its execution, and suit might have been brought thereon without any demand.</p> <p>3. Limitation of actions, § 23*—lohen indorsement does not talce demand note out of operation of statute. A demand note without interest which had become barred by the statute of limitations was not taken out of the operation of the statute by an indorsement stating “in case of my sudden death please pay this note on demand.”</p> <p>4. Bills and notes, § 313*—when agreement to pay interest does not change time when demand note is due. An agreement to pay interest in and of itself is not sufficient to take the obligation out of the operation of the general rule providing that when promissory notes are payable on demand they become due on their date and that an action may be begun thereon without demand for payment.</p>

<p>1. Divorce, § 109*—when court may modify decree by reducing alimony notwithstanding counsel marked decree “O. K." A court of equity had power to modify a decree for divorce and alimony, hy reducing the amount of the alimony, although the original decree had been marked “O. K.” hy the solicitors for the respective parties.</p> <p>2. Divorce, § 109*—when O. K. of decree by counsel does not</p> <p>deprive court of power to modify as to future alimony. Hurd’s#</p> <p>Rev. St. 1915-1916, ch. 40, sec. 18 (J. & A. f 4233), providing that on application the court may from time to time make alterations in the allowance of alimony and support of children, inferentially recognizes that conditions might arise from time to time which would render alterations in' such decrees just and reasonable, and the O. K. of defendant’s counsel in the case in question did not deprive the court of its power to modify the decree so far as it related to the subject of future alimony.</p> <p>3. Divorce, § 106*—decrees for alimony in instalments as not</p> <p>final judgments. Decrees for the payment of instalments of ali-</p> <p>mony are not in their nature final judgments.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Oscab Hebel, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>1. Garnishment, § 35*—when payment of wages in advance defeats .garnishment. The payment of wages in advance to an employee is valid, and it is apparently immaterial whether such an arrangement was made for the purpose of escaping the effect of garnishee proceedings or not.</p> <p>2. Garnishment, § 14*—when plaintiff without standing in court. In garnishment against an employer defendant, the plaintiff could have no standing in court except in a case where the employee could himself maintain an action.</p> <p>3. Garnishment—what is fatal variance between affidavit and proof. An affidavit for garnishee process which averred a judgment against the principal defendant, while the record showed a judgment against such defendant and another, was fatally variant as to allegation and proof.</p> <p>4. Appeal and error, § 543*—when motion in arrest sufficient to preserve objection on ground of variance. A motion in arrest of judgment in garnishment proceedings was sufficient to preserve for review the point that there was a fatal variance between the allegations and proof, where the affidavit for garnishee process averred a judgment against the principal defendant, while the record showed a judgment against such defendant and another.</p>

<p>1. Negligence, § 80*—when person falling through trapdoor guilty of negligence per se. A bartender who for over 2 years had worked in his brother-in-law’s saloon to which the defendant brewing company supplied beer, and was familiar with the entire environment, was guilty of negligence per se in walking into a dark room containing a trapdoor leading into a cellar where beer was deposited by the company, without switching on the electric light; and plaintiff was not entitled to recover for his intestate’s death through falling through the trapdoor alleged to have been left open through defendant’s negligence.</p> <p>2. Evidence, § 79*—when conversation after accident not part of res gestee. The testimony of a witness to the effect that an employee of the defendant brewing company had stated that a certain other employee who testified that he had shut the trapdoor through which plaintiff’s intestate fell, in fact, did not do so, was not part of the res gestee, as the conversation took place after the death of plaintiff’s intestate.</p> <p>3. Negligence, § 81*—when entering dark room, containing trapdoor is negligence per se. Entering a dark room where a trapdoor leading into a cellar is liable to be open, without using the means at hand to ascertain whether the trapdoor is open or shut, is negligence per se.</p>

<p>1. Chattel mortgages—when commission men have right to sell mortgaged cattle. Live stock commission men who sold the steers in question at Chicago for the owner in the ordinary course of business, without either actual or constructive notice that they were subject to a chattel mortgage recorded in Wisconsin, or to any other lien, were vested with the right to sell the steers as they did, and pass good title thereto to the purchaser.</p> <p>2. Evidence, § 33*—when common law presumed to he same in foreign States as in this State. Under the condition of the record in trover by the holder of a. chattel mortgage on steers, executed in Minnesota and recorded in Wisconsin, against live stock commission men who sold the stock for the owner at Chicago in the open market in due course of business, without notice of the mortgage, the court assumed that the common law was the same in Minnesota and Wisconsin as it is in this State, viz., that the possession of personal property is prima facie evidence of ownership and that title passed by delivery.</p> <p>3. Chattel mortgages, § 193*—what must be proved in trover by mortgagee against commission men who sold mortgaged cattle. In trover by the holder of a chattel mortgage upon steers, executed in Minnesota and recorded in Wisconsin, against live stock commission men who sold the steers for the owner in open market at Chicago, without either actual or constructive notice of plaintiffs claim, plaintiff was not entitled to recover in the absence of proof that he was entitled to any lien, right or claim by the laws of Minnesota because of the execution and delivery of the mortgage in that State, and in the absence of proof that the steers were ever in Wisconsin after the date of the mortgage, and in the absence of evidence as to the laws of Wisconsin creating any lien by a mortgage of the kind in question.</p>

<p>1. Schools and school districts, § 148*—when contract of employment as superintendent invalid. Under Rev. St. eh. 122, sec. Ill (J. & A. T 10132), providing that no official business shall be transacted by school directors except at a regular or special meeting, a contract of employment as superintendent of schools was invalid, where It was admitted that it was signed by four members of the board at their several places of abode or business some time after the meeting at which it was claimed plaintiff was elected.</p> <p>2. Evidence, § 111*—what is only competent evidence of what transpires at school hoard meeting. In an action against a board of education upon a school principal’s contract, plaintiff’s offer to prove by the testimony of one of the members of the board that he and three other members voted for plaintiff’s employment at a stated meeting and that plaintiff then and there accepted the employment, was properly refused, because the records of the hoard were the only competent evidence as to what transpired at meetings of the board.</p>

<p>1. Attachment—in aid of trover not maintainable. Trover not being mentioned among those actions in aid of which attachment may be issued, enumerated in section 31 of the Attachment Act (J. & A. If 522), the action in question for an attachment in aid of trover was not maintainable.</p> <p>2. Damages, § 221*—when refusal of jury to defaulted defendant is reversible error. The provision of section 59 of the Practice Act (J. & A. H 8596), that either party to suits in courts of record may have the damages assessed by a jury, is imperative, and the refusal to grant the defendant's request for a jury in the case in question after a default judgment had been vacated, objections to defendant’s pleas sustained and remittitur entered, was reversible error.</p> <p>3. Tboveb and convebsion, § 7*—nature of trover. Trover is not technically a form of trespass on the case, and the actions are clearly distinguishable.</p> <p>i. Damages, § 221*—when refusal of jury to defaulted defendant is reversible error. A defaulted defendant at any time before the assessment of damages is entitled, on asking it, to have his damages assessed by a jury, and the refusal to grant the request is reversible error.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>1. Insurance, § 913*—when judgment on benefit certificate reversed for falsity of statements in application. A judgment upon a benefit certificate was reversed with a finding oí facts, where the answers, even if representations only and not warranties, made by the insured in his application and the medical examiner’s blank, as to the cause of the death of his brother and sister, and as to whether any of his near relations had ever been afflicted with consumption, were false and were material to the risk.</p> <p>2. Insurance, § 752*-—when falsity of representations avoids policy in benefit association. Falsity of representations material to the risk, made by an applicant for insurance in a benefit association, will avoid the policy.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>1. Conspiracy, § 35*—when surplusage does not render indictment , bad. Allegations in an indictment for conspiracy to assault negroes and injure their persons and property, etc., reciting that a large number of negroes owned real estate and personalty and were employed in numerous occupations in the city in question; that others residing elsewhere passed through said city from time to time and that prejudice existed in the minds of white persons and was openly expressed, etc., even if superfluous, did not render the indictment bad.</p> <p>2. Conspiracy, § 44*—when failure to name persons conspired against does not render indictment bad. An indictment for conspiracy to assault negroes and injure their persons and property, etc., was not bad because it did not show a conspiracy to harm a particular person or persons, naming them.</p> <p>3. Criminal law, § 194*—when permitting certain attorney to assist State’s Attorney not error. The action of the court in permitting a certain attorney to assist the State’s Attorney in the prosecution in question was not error on the alleged ground that such attorney had been employed to defend the accused and was receiving money from private parties, where it appeared that such attorney had been appointed Assistant Attorney General of the State, and where there was no sufficient showing in the record that he had ever been in any way employed to defend the accused, and where he denied in positive, terms such employment, and where the charge as to leceiving money from private persons had no support.</p> <p>4. Criminal law, § 495*—when number of attorneys to be allowed to appear for State is discretionary. The questions as to how'many attorneys should be permitted to appear for the State, and as to whether the representation in favor of the State is stronger than the representation in favor of the defendant, are largely discretionary.</p> <p>5. Jury, § 47*—what constitutes abuse of discretion as to appointing special bailiff to summon persons to fill exhausted panel. Although under Hurd’s Rev. St. ch. 78, sec. 13 (J. & A. U 6843), providing that upon objection to the sheriff summoning persons to fill an exhausted panel the court should appoint a special bailiff to summon such persons, the matter of appointing such bailiff may be discretionary, such discretion was abused in a prosecution for conspiracy to assault negroes and injure their persons and property, which had attracted wide interest, and where accused set up among other matters that the deputy sheriffs were close personal and political friends of the sheriff and State’s Attorney and were under their control and influence, and that the sheriff and his assistants had aided in the investigation and in the prosecution and conviction of the indicted persons, etc.</p> <p>6. Conspiracy, § 49*—when error to exclude testimony of defendant. In a prosecution for conspiracy to assault negroes and injure their persons and property, where certain witnesses had testified to alleged statements of the accused which he in his examination denied having made, to the effect that he had tried to start something the morning of the riot condition in question, where defendant did not deny having had the conversation, it was error to refuse to permit him to state what he claimed he had in fact said, as the record disclosed an offer that what the accused did say was that he had tried to stop something already that morning.</p> <p>7. Witnesses, § 207*—when cross-examination improperly limited. In a prosecution for conspiracy to assault negroes and injure their persons and property, it was error to limit the cross-examination of a witness for the People who had testified to certain conversations between the accused and another, so as to preclude eliciting of all that was said between the parties.</p> <p>8. Criminal law, § 238*—when statement of prosecutor in argument not improper. In a prosecution for conspiracy to assault negroes and injure their persons and property, it was not error to overrule an objection to the statement by the prosecutor in his argument, that never in the history of Illinois had blood flowed so freely as it did on the riotous day in question.</p> <p>9. Conspiracy, § 49*—when admission of evidence of rioting not error. In a prosecution for conspiracy to assault negroes and injure their persons and property, it was not error to admit evidence of rioting and its attendant results, without first attempting to connect the accused therewith.</p> <p>10. Conspiracy, § 26*—when actual participation in acts of violence not necessary to conviction. In conspiracy to assault negroes and injure their persons and property, the law did not require that the accused should have participated in the actual acts of violence committed by others, in order to be held guilty, as one who is instrumental in instigating acts of violence is just as guilty as though he actually participated in them.</p>

<p>1. Judges—when order by judge not hearing ease entered without jurisdiction. Where after the hearing upon an appeal to the Circuit Court from a petition filed in the County Court to set aside an executor’s final report and requiring the trustee appointed in the will to make a report showing how the trust funds were invested and for general relief, and after the matter had been taken under advisement, an amended petition was filed containing radical changes in the relief prayed from that contained in the original petition, a subsequent order entered by a judge other than the trial judge, overruling a motion to strike the amended petition and granting the prayer of the petition was entered without jurisdiction.</p> <p>2. Judges, § 8*—when order in. vacation entered without jurisdiction. Where after the hearing upon an appeal to the Circuit Court from a petition filed in the County Court to set aside an executor’s final report and requiring the trustee appointed in the will to make a report showing how the trust funds were invested and for general relief, and after the matter had been taken under advisement, an amended petition was filed containing radical changes in the relief prayed from, th'at contained in the original petition, a subsequent order was entered by a judge other than the trial judge, overruling a motion to strike the amended petition and granting the prayer of the petition such order was entered without jurisdiction, and a subsequent order entered during vacation by the trial judge was also without jurisdiction.</p> <p>3. Courts—what is extent of jurisdiction of Circuit Court on appeal from County Court. The Circuit Court on appeal from the County Court has no greater jurisdiction than the County Court had, and unless the County Court had jurisdiction to grant the relief prayed in the petition in question as amended after the appeal, the Circuit Court had no jurisdiction so to do on an appeal.</p> <p>4. Judges, § 8*—when decree in vacation not validated by prior . decree during term. A decree entered during a term by a judge other than the trial judge at the request of the latter, and which had no binding effect, did not give validity to a subsequent decree entered by the trial judge in vacation without consent of the parties.</p>

<p>1. Replevin, § 10*—when action lies for property held, by sheriff under execution. Replevin to recover property from the sheriff who held it under execution was proper where the judgment, and consequently the execution, was void.</p> <p>2. Replevin, § 10*—when statutes construed so as to permit action for property held by sheriff under execution. Hurd’s Rev. St. ch. 119, sec. 2 (J. & A. If 9187), providing that replevin shall not lie by the defendants in any execution or attachment to recover property seized by virtue thereof unless exempt, etc., and section 4 (J. & A. jf 9189), providing for the filing of an affidavit stating that the property sought to be replevied is not seized under execution, etc., nor held by virtue of any writ of replevin, were so construed to permit the maintaining of replevin to recover property from the sheriff who held it under execution, where the judgment, and consequently the execution, was void.</p> <p>3. Judgment, § 43*—how statute authorising clerk to enter judgment by confession is to be construed. The clerk of the court in entering a judgment by confession is not a judicial officer, and his duties are merely ministerial, and to render a judgment so entered valid, the statute authorizing the clerk to enter it must be strictly construed.</p> <p>4. Judgment, § 40*—when judgment by confession not regarded as entered in vacation. Where the record disclosed that the court was in session on the first day of a new term, a judgment by confession entered by the clerk on that day was not considered as having been entered in vacation, although it was claimed, apparently outside the record, that the judgment was entered before the morning hour of convening.</p>

<p>Error to the County Court of Effingham county; the Hon. Barney</p> <p>Overbeck, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>Appeal from the Circuit Court of Perry county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1919.</p>

<p>1. Sales, § 298*—when seller cannot maintain replevin on nonpayment of check given By purchaser. Replevin did not properly lie to recover an automobile sold to a woman and given by her to another, where before accepting the check given in payment, but which was never paid, plaintiffs made investigation as to such woman’s financial responsibility and stated that they were satisfied with it, and where they made a bill of sale to defendant at the purchaser’s request upon her informing plaintiffs that she desired to give it to defendant, and, where plaintiffs stated in the bill that they had accepted the check in question, in payment.</p> <p>2. Appeal and ebbob, § 1748*—when judgment will he affirmed. Where after striking out all the evidence complained of there is sufficient to sustain the judgment, it will be affirmed.</p> <p>3. Payment, § 5*—By check. While the rule is that a check is only presumed to be a means of payment, it may be shown that a check has been accepted as absolute payment.</p> <p>4. ■ Sales, § 170*—when seller accepting check is not unpaid seller within Uniform Sales Act. Clause b of section 52, of the Uniform Sales Act [Call. 1916 Stat. 1 10021(55)], providing that a seller of goods is to be deemed an unpaid seller within the act “when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition * * * has</p> <p>been broken .by the dishonor of the instrument, the insolvency of the buyer, or otherwise,” had no application where a check was received as payment for an automobile, after the investigation of the purchaser’s financial condition by the seller, and his satisfaction with it.</p>

<p>X. Judgment, § 217*—when motion in arrest mil not lie on ground of insufficiency of declaration. A motion in arrest of judgment on the ground that the declaration was insufficient to sup-, port the judgment was properly denied where one count contained a defective statement of a good cause of action.</p> <p>2. Judgment, § 216*—when question of form in declaration cannot be raised by motion in arrest. The question of form in a declaration cannot be raised by a motion in arrest of judgment.</p> <p>3. Agbicultube, § 3*—when declaration in personal injury action against fair association states cau.se of action. A declaration in a personal injury case by a guest who had paid an admission fee to see an automobile race at an exhibition given by defendant fair and park association, and sustained injury by being struck by one of the automobiles leaving the race track and striking her, stated a cause of action in alleging the duty to keep the ground allotted and set apart for guests adjoining to and surrounding the short turn in the race track reasonably free from danger likely to occur in consequence of the automobile race.</p> <p>4. Agbicultube, § 3*—Iliability of fair association for injuries to spectator at automobile race. A fair and park association, which while giving an exhibition had offered prizes to automobile contestants and had invited the public to attend and charged an admission fee, could not he heard to say in an action by one who had paid to see the race, and was injured by one of the racing automobiles'leaving the track and striking her, that it had no control over the contestants, and that even though plaintiff was injured through the negligence of such contestant, it was not liable.</p> <p>5. Instructions, § 110*—when instruction as to plaintiff’s right to recover in general is proper. Where one of the counts of a declaration stated a cause of action, an instruction was proper which stated that plaintiff was entitled to recover if the jury believed from the preponderance of the evidence that plaintiff made out her case as charged in the declaration, or any count thereof.</p> <p>6. Damages, § 212*—when instruction that jury may consider physician’s Mils is proper. Testimony in a personal injury case by a married woman that she expended money for doctor’s bills justified an instruction that the jury might consider physician’s bills in estimating damages.</p> <p>7. Damages, § 19*—inability of married woman to do housework as causing financial loss. A married woman suffers financial loss because of inability to do her housework.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. F. Guíham, Judge, presiding. Heard in this court at the March term, 1919.</p> <p>Certiorari denied by Supreme Court (making</p> <p>opinion final).</p>

<p>1. Insurance, § 336*—when insurer estopped to take advantage of mistake in description of property. Where a fire insurance company’s agent authorized to solicit insurance, indorse and deliver policies and collect the premiums, prepared without any suggestion from the insured or her agent, the-incorrect description of the property contained in the policies in question, the company was precluded from taking advantage of its own mistake or that of its agent.</p> <p>2. Insurance, § 663*—when evidence tends to show insurer not misled by incorrect description of land. In an action on a fire insurance policy, where it was claimed that an incorrect description of the land upon which the building was located vitiated the policy, evidence that there was no other building of that kind or character in the village in question, and no other building occupied by the insured in such village, tended to show that the insured could not have in fact been misled as to the building or its location.</p> <p>3. Insurance, § 331*—when knowledge of agent as to ownership of premises is imputed to insurer. Knowledge of the agent of the insurer that the holder of the policy in question was not the sole owner of the premises was imputed to the insurer.</p> <p>4. Insurance, § 331*—what does not affect rule that notice to agent is notice to insurer. The rule that notice to the agent of a fire insurance company at the time of the application for insurance, of facts material to the risk, is notice to the insurer and will prevent it from insisting upon a forfeiture for causes within the knowledge of its agent, was not affected because the agent in question was a joint owner of the bank which held a mortgage against the premises in question, and loss was made payable to such bank.</p> <p>5. Insurance, § 261*—when sale by partner will not vitiate fire policy. Where one partner sells out his .interest in the property to another, such sale will not vitiate the policy, even though there was a condition that the policy should become void if the property be sold or conveyed.</p> <p>6. Insurance, § 692*—when instruction applying iron-safe clause is incorrect. A proposition of law to the effect that if the insured in a policy covering buildings and stock in trade, failed to keep an iron safe and keep therein their books of account and inventory as required by the terms of the policy, then the whole policy became void, was incorrect, as it could not have been in the mind of either of the parties at the time of issuing the policy that the failure to keep account books or an inventory in an iron safe in the store would in any manner affect the insurance upon the building.</p> <p>7. Insurance, § 684*—when question of waiver of requirements of fire policy is for jury. The question of waiver of requirements of fire insurance policies is one of fact for the jury.</p>

<p>1. Death, § 71*—when questions of negligence of defendant and ordinary care of deceased are for fury. In an action to recover for a death alleged to have been caused by defendant’s negligence, it is not the province of the trial court nor of the Appellate Court to determine whether the facts shown establish a case of negligence of defendant and ordinary care by deceased, such questions being questions of fact and not of law, unless the answer is so clear that there is no ground for reasonable difference of opinion.</p> <p>2. Negligence, § 131*—what is question to be determined in negligence case. The question to be determined in a case based on negligence is whether the degree of care exercised measures up to the standard of ordinarily prudent men as they usually act under the same or similar circumstances.</p> <p>3. Trial, § 194*—when direction of verdict for defendant is not warranted. The directing of a verdict for the defendant is not warranted merely because the court would feel bound to grant a new trial were one returned for plaintiff.</p> <p>4. Trial, § 216*—how evidence considered on motion to direct verdict. All just inferences to be drawn, from the evidence must be conceded to the plaintiff.</p> <p>5. Tbial, § 154*—drawing of inferences from facts proved as for jury. The drawing of inferences of fact from facts proved is for the jury and not for the court.</p> <p>6. Electricity, § 21*—when defense that deceased was trespasser, or mere licensee not available. An electric company which, merely by sufferance of the public authorities and without other right or claim of right, installs its wires on poles bolted to a public bridge in such a manner that after they sag they can be reached by one walking on top of the span, cannot base its defense to an action against it to recover for the death of a boy killed by grasping an uninsulated charged wire while he was walking on top of the span, which was readily accessible by reason of its angling end-beams, on the ground that the boy was. a trespasser or mere licensee to. whom it owed no duty except not to injure him wantonly.</p> <p>7. Electricity, § 28*—when contributory negligence of deceased is for jury. In an action to recover damages for the death of a boy killed ■ by coming in contact with defendant’s uninsulated wire, charged at a point where it passed over a public bridge, evidence that such wires had been installed along the bridge merely by sufferance of the public authorities; that, while originally installed out of the reach of one on top of the spans, they had sagged until they could be easily reached; that the top of the span was, by reason of having angling end-beams, readily accessible to active persons and deceased and other boys often ran up and down the- end-beams; that deceased went up such beam to get a bird’s nest on top and, while walking on the top girder, took hold of the wire and was instantly killed, held not to show such contributory negligence on the part of deceased as to warrant the direction of a verdict, for defendant.</p>

<p>1. Evidence, § 345*—when parol evidence of collateral agreement is admissible. The fact that the parties to a sale of land have entered into a valid written contract for the sale of the land does not prevent the vendor, in action hy her against the purchaser to recover commissions on such sale which had been recovered from her by a third person, from introducing parol evidence to show a collateral agreement between her and the purchaser by which the latter agreed that if she would allow him the amount of the commissions she had agreed to pay a third person, he would protect her in case she should be required to pay commissions to the third person whose agent, it appeared, had approached the purchaser in regard to the farm before the sale was made.</p> <p>2. Indemnity, § 24*—when evidence in action on contract sufficient to sustain verdict for plaintiff. In an fiction by the vendor of land against the purchaser to recover commissions on tfye sale which had been recovered of the vendor by a third person, the vendor’s action being based on an alleged agreement on the part of the purchaser that if she would allow him a credit of the amount of commissions which she had agreed to pay the third person, he would protect her in case she was held liable to such third person, where the purchaser contends that the effect of such agreement was merely to bind him to testify for her in any suit which such third person might bring against her, but the vendor introduces evidence to show that the purchaser stated that he would see that she did not lose anything by allowing him the commission and that if she had to pay it, he would pay it to her, a verdict for plaintiff will not be, disturbed.</p> <p>3. NEW trial, § 86*—when point for new trial waived. One who moves for a new trial and files points in writing waives a point not contained in such written points.</p>

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

<p>1. Just, § 10*—right to jury trial in proceedings to probate will. In proceedings to probate a will, neither the proponents of the will nor those opposed are entitled to a trial by jury.</p> <p>2. Appeal and ebbob, § 1387*—how evidence on appeal from probate of will reviewed. On appeal from a judgment admitting a will to probate, the evidence” presented to the lower court by which the case was heard is reviewed, not with reference to the question of errors in admitting or excluding it, but to ascertain whether there is sufficient legal, competent evidence to sustain the judgment.</p> <p>3. Wills, § 137*—necessity of producing subscribing witnesses. The proponents of a will are bound to produce the subscribing witnesses.</p> <p>4. Wills, § 143*—what evidence is sufficient to establish will. On proceedings to probate a will, where the subscribing witnesses are called, their proven signatures are introduced and their signatures to the attesting clause are proven by comparison; the testator’s signature is proven by other than the subscribing witnesses; he is shown to have been of sound mind and disposing capacity at, before and after the date of the will; circumstances are proved showing that the disposition of the property was the one which reasonable people would expect him to make, and declarations by the testator that he had disposed of his property in such manner are shown, such evidence is sufficient to establish the will.</p> <p>5. Wills, § 143*—when finding as to genuineness of signatures of subscribing witnesses will not be disturbed. On appeal from a judgment in probate proceedings to establish a will, where the evidence is conflicting as to the genuineness of the signatures of the subscribing witnesses, the latter denying such signatures and that they were present when the will was executed, and evidence of experts and by comparison of handwriting showing the genuineness of such signatures, and there being further evidence to show that the will was that of the testator, and no evidence to support a motive for forgery being introduced, the finding of the lower court in favor of the genuineness of their signatures will not be disturbed.</p> <p>6. Wills, § 156*—what evidence admissible in Circuit Court, to prove execution of will. While the fact that the persons whose names appear as subscribing witnesses to a will, executed and attested in compliance with law, deny the genuineness of their signatures may prevent proof by their evidence of the execution of the will and prevent its probate in the County Court, such fact does not prevent such proof being made by other competent evidence on appeal to the Circuit Court.</p> <p>7. Signatures, § 3*—when proof by comparison permitted. The rule which formerly existed under which the genuineness of a signature could not be proven by comparison unless the standards had been in evidence for some other legitimate purpose or at least among the files of the case as a part of the record, has been changed by the act of 1915 [L. 1915, p. 440, Call. 1916 Stat. 1f 5566(1) et see?.] which permits comparison with writings admitted to be genuine by the parties or proven to be genuine to the court’s satisfaction.</p> <p>8. Appeal and erbob, § 1466*—when admission ofx evidence to prove handwriting is not reversible error. The fact that no notice or opportunity for examination of the introduction in evidence of standards for the comparison of handwriting was given as provided by the act of 1915 [L. 1915, p. 440, Call. 1916 Stat. If 5566(1) et see?.] is not ground for reversal where the standards were identified in the first part of the trial but were not offered until later, no objection on the ground of want of notice and request for examination was made, and it was apparent that the genuineness of the signatures could not be disputed.</p> <p>9. Appeal and error, § 1466*—when admission of evidence to prove genuineness of signature is not reversible error. Though, in a proceeding to probate a will, it is not proper to admit in evidence photographs of signatures used by witnesses who testified they had examined the originals and the photographs and testified from the examination, where there is no proof of their genuineness, the proceeding having been heard by the court, the admission of such evidence is not material.</p> <p>10. Wills, § 159*—who bound by judgment of Circuit Court on appeal from refusal of probate. Where several persons opposed the probate of a will in the County Court and the record on appeal to the Appellate Court shows that an appeal was taken to the Circuit Court from the judgment refusing probate and the “contestants” appeared there, without naming them, all those opposing probate below were bound by the judgment of the Circuit Court, including one who did not actively appear in the latter court.</p> <p>11. Appeal and error, § 1035*—when question of costs not reviewed. Where, on. appeal from a judgment of the Circuit Court admittíng a will to probate, the only assignment of errors is that the court erred in finding the will to be the last will and testament of the decedent, appellants cannot complain of the disposition of costs below.</p>

<p>1. Cashiers, § 425*—when passenger’s ailomng body to protrude from car not contributory negligence as matter of law. A passenger allowing a part of his body to protrude from the car is not guilty of contributory negligence as a matter of law barring a recovery for injuries that would have been avoided had he kept entirely within the car.</p> <p>2. Carriers, § 480*—when contributory negligence of injured passenger is question for jury. The question whether a passenger was guilty of negligence in allowing a part of his arm to protrude from the car window is one of fact to be passed upon by the jury unless there is no evidence tending to show that he was in the exercise of due care and caution and no fact or circumstance appears from which a reasonable inference of such care and caution may be drawn.</p> <p>3. Carriers^ § 480*—when contributory negligence of injured passenger is question for jury. Where the seats in a car are so arranged with reference to the guardrails in the open car windows that a passenger’s arm would be guarded against projecting outside of the window when placed on the sill, but might readily project outside without the passenger’s noticing it when placed on the back of his seat or the one in front of him, and it appears that plaintiff’s injury was received when he placed his hand on the seat before him and while it was protruding from 2 to 4 inches, he testifies that he was unconscious that his elbow, which was struck, was projecting, the question of his negligence is for the jury.</p> <p>4. Carriers, § 407*—what conditions passenger is chargeable with Knowledge of. One who, as a passenger, rides frequently over a certain part of an interurban road is charged with such knowledge of the conditions as an ordinarily prudent man would acquire in so riding.</p> <p>5. Carriers, § 480*—when negligence in manner of constructing tracks, etc., is question for jury. In an action by a passenger on defendant’s car to recover for injuries to his arm which was struck by another passing car while it was protruding from 2 to 4 inches out of the window, the question of defendant’s negligence in the manner in which the tracks were constructed and its road was operated doqs not raise a scientific question requiring expert evidence, but is one to be determined by the jury guided by their common knowledge of human affairs.</p> <p>6. Cabbiebs, § 356*—when carrier required to guard openings in cars and warn passengers of danger. Where the proximity of a carrier’s tracks is such as to leave a clearance of only 2 to 4 inches between passing cars and such condition has existed a considerable time, it is the carrier’s duty to effectually guard openings in its cars and to warn its passengers of the danger.</p> <p>7. Cabbiebs, § 278*—what is degree of care owing try carrier to passenger. A carrier of passengers owes to a passenger the duty of exercising the highest degree of care consistent with the character and mode of conveyance and the practical operation of its conveyance to prevent an accident.</p> <p>8. Cabbiebs, § 476*—when evidence sufficient to warrant finding that carrier was negligent in failing to guard and warn passenger against danger. In an action by a passenger to recover for personal injuries received by his arm being struck, while protruding from the car window, by a car of defendant passing on a parallel track, where it appears that the clearance between the cars at that part of the track was from 2 to 4 inches, that there were four guardrails in the windows extending up the window about a foot, that the top guardrail was a little below the level of the back of the car seat and that at the time the injury was received, the plaintiff had his hand on the top of the seat in front and turned to speak to someone leaving the car, and, in so doing, unconsciously caused a part of his elbow to protrude slightly beyond the top rail whereupon he was struck by the other car, it was held that such evidence warranted a finding that the defendant was guilty of negligence in failing to guard the passenger against or warn him of the danger of such an injury.</p> <p>9. Cabbiebs, §§ 484, 493*—when instruction as to care required of passenger and carrier not so misleading as to Be ground for reversal. An instruction, in an action by a passenger to recover for personal injuries, as to the care required of passenger and carrier, while not approved as to form nor sanctioned as a precedent but open to criticism in many respects, held not so misleading as to be ground for reversal.</p>

<p>1. Compromise and settlement, § 5*—what is sufficient consideration for compromise. The settlement of a bona fide dispute or a doubtful claim, if made fairly and in good faith, is a sufficient consideration for a compromise based thereon.</p> <p>2. Compromise and settlement, § 5*—what is not sufficient consideration for compromise. The surrender of a claim which is entirely without foundation, either in law or in equity, does not afford a sufficient consideration for a compromise.</p> <p>3. Compromise and settlement, § 5*—what is sufficient to support compromise. It is sufficient to support a compromise that there is an actual controversy between the parties of which the issue fairly may be considered by both parties as doubtful, and that at the time of the compromise they in good faith so considered it.</p> <p>4. Contracts, § 78*—when promise not to interfere in settlement of estate is without consideration. A promise by one to the mother, sister and brothers of his deceased wife that if they would not interfere in the settlement of her estate, which consisted wholly of personalty, as far as appeared from the evidence, he would pay them $2,000, is without consideration and not enforceable against him.</p> <p>5. Appeal and error, § 1236*—when party estopped to make claim on appeal. Where, in an action against one to recover on a promise alleged to have been made by him to plaintiffs, the mother, brothers and sister of his deceased wife, that he would pay them a certain sum of money if they would not interfere with the settlement of the estate, the defendant testifies without contradiction that his wife’s estate in the State consisted wholly of personalty and that he did not receive any interest from her and invest it in realty in the State and plaintiffs refuse to permit him to state who paid for all of the realty, they are in no position to contend on appeal that deceased had property in real estate, furnishing a foundation for a reasonable claim by them of inheritance.</p>

<p>1. Insurance, § 667*—when finding that ptomaine poison was in food eaten by insured is warranted by evidence. In an action to recover on an accident insurance policy, where the evidence shows that insured died of cerebral hemorrhage after suffering 19 days from an attack of ptomaine poisoning immediately following the eating of a lunch in a cafeteria, a finding that the ptomaine poison was in the food is warranted notwithstanding the general statement of an expert witness for defendant that ptomaine poisoning may develop from a diseased -condition or from the arousing of bacteria in the body by taking healthful food, there being no evidence to show that these were the conditions.</p> <p>2. Insurance, § 686*—when cause of death of insured is question for jury. Where the expert evidence is conflicting in an action on an accident insurance policy, as to whether the cerebral hemorrhage and death of insured, who died of cerebral hemorrhage after being sick for 19 days with ptomaine poisoning, resulted from such poisoning and sickness, the question is for the jury.</p> <p>3. Evidence, § 454*—how jury are to weigh expert medical testimony when conflicting. Where expert medical testimony is conflicting, it is the duty of the jury to weigh it in the light of their knowledge and judgment derived from their experience, observation and reflection.</p> <p>4. Insurance, § 419*—death by unintentional swallowing of poison contained in food as caused by “accidental means.” Death caused ^from the unintentional swallowing of poison contained in apparently wholesome food may be considered caused by “accidental means,” within the meaning of an accident insurance policy.</p> <p>5. Insurance, § 419*—when ptomaine poisoning not excluded from accident policy. The fact that an accident insurance policy contains a special provision that blood poisoning resulting directly from bodily injury insured against shall be deemed bodily injury within the meaning of the policy does not tend to exclude a construction of the policy to include ptomaine poisoning.</p> <p>6. Insurance, § 690*—when instructions not misleading. Instructions in an action to recover on an accident insurance policy held, when read together and applied to the evidence, not to be misleading.</p> <p>7. Insurance, § 408*—accidental character of means causing death of insured in accident policy as question of construction of contract. In an action on an accident insurance policy, whether the means causing the death of insured was accidental was a question of construction of the contract.</p> <p>8. Insurance, § 697*—when refusal of instruction in action on accident policy is not error. In an action on an accident insurance policy, it is not error to refuse to give, at defendant’s request, an instruction that if insured, on a certain date, contracted ptomaine poisoning, that of itself was not proof that it was contracted through accidental means, directly and independently of all other causes, where there is no question in the case as to how the poisoning was contracted, the accidental character of the means had heen argued and decided as a question of law and whether it was independently of all other causes had been covered in other instructions given.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. John M. Niehahs, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>1. Criminal law, § 460*—when objection that grand, jury was illegally drawn will not be considered on appeal. On appeal from a judgment in a criminal prosecution, the objection that the grand jury returning the indictment was illegally drawn will not be considered where the abstract only shows a motion by defendant to quash the indictment, without showing whether any points were tiled in support thereof, nor whether, if in writing, such objection was among them. .</p> <p>2. Criminal law, § 502*—when assumed on appeal that proof justified court’s ruling on motion to quash indictment. On appeal from a judgment in a criminal prosecution, where the bill of exceptions does not show what proof was heard on the motion to quash the indictment, it will be assumed that the proof justified the court’s ruling.</p> <p>3. Criminal law, § 440*—when matters not made part of common-law record. Matters cannot be made a part of the common-law record in a case merely by the act of the clerk of the court in copying them into it..</p> <p>4. Criminal law, § 440*—whether general order to draw grand jury constitutes part of common-law record, quaere. As to whether a general order of the criminal court entered at a prior term directing the clerk to draw the names of grand jurors and issue a venire for them to appear on the next term constitutes a part of the common-law record on appeal from a judgment in criminal case tried at the latter term, quaere.</p> <p>5. Criminal law, § 440*—when certificate of clerk as to drawing of grand jury is not part of common-law record. A certificate of a clerk of the court in which an indictment was found that he drew fifty names of persons to appear as grand jurors and issued a venire does not, by being copied into the common-law record of a case, become a part thereof.</p> <p>6. Criminal law, § 445*—necessity of preserving in bill of exceptions proof on motion to quash indictment for illegality ■ of grand jury. To be considered on appeal, the fact that the clerk of the court drew fifty names of persons to serve as grand jurors and issued a venire for them, should have been proven at the hearing of the motion made to quash the indictment on the ground that the grand jury was illegally drawn, and such proof should have been preserved in the bill of exceptions.</p> <p>7. Grand jury, § 6*—-when general order to, and compliance therewith by, clerk do not render grand jury drawn illegal. A general order of the criminal court to the clerk to draw from the grand jury box the names of fifty persons to serve as grand jurors and the compliance of the clerk therewith do not render the grand jury so drawn illegal.</p> <p>8. Indictment and information, § 41*—when indictment in language of statute is sufficient. An indictment drawn in the language of the statute is usually sufficient.</p> <p>9. Banks and banking, § 64*—when indictment for fraudulent banking not bad because of use of words “feloniously steal." An indictment under Hurd’s Rev. St. 1917, ch. 38, section 25a (J. & A. 1 3617) which, in the main, is in the language of the statute, is not bad because it uses the words “feloniously steal,” but such words will be rejected as surplusage.</p> <p>10. Criminal law, § 136*—when relevant evidence not excluded because of admissions. On an indictment under Hurd’s Rev. St. 1917, ch. 38, section 25a (J. & A. If 3617) for embezzlement by a bank officer, the fact that, after the jury had been impaneled and sworn, defendant’s counsel, in open court, admitted that on the date alleged the bank was insolvent and that defendant knew it, did not render it error for the court to permit the State to introduce proof upon the extent and length of time of the insolvency of the bank and upon defendant’s knowledge of its condition and the time when he must have acquired that knowledge.</p> <p>11. Banks and banking, § 64*—when admission of evidence, on prosecution for fraudulent banking, as to insolvency of bank, not error. On an indictment under Hurd’s Rev. St. 1917, ch. 38, section 25a (J. & A. jf 3617) for embezzlement by a bank officer, evidence as to the extent and length of time of the bank’s insolvency and as to defendants knowledge of its condition and the time when he must have acquired such knowledge is not made incompetent because such evidence may have been relied upon in another prosecution against defendant for conspiracy to ruin the same bank and because it may also have some tendency to prove conspiracy.</p> <p>12. Criminal law, § 218a*—what is proper cross-examination of defendant in prosecution for fraudulent banking. Where, on an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. if 3617), for embezzlement by a bank officer, where defendant has testified in chief tending to exonerate himself from any responsibility for the conduct of the bank on the day named in the indictment and for its receiving deposits on that day, including the deposit on which the indictment is based, it is proper cross-examination to question defendant with regard to what he actually did on that day concerning the bank’s business and also as to what he testified at his trial, in a prosecution against him for conspiracy to ruin the same bank, concerning his acts in and about the bank the same day.</p> <p>13. Criminal law, § 218a*—when refusal to permit defendant, in prosecution for fraudulent tanking, to cross-examine witnesses as to certain checks, not error. On an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. 1f 3617), for embezzlement by a bank officer, it is not error to refuse to permit defendant to cross-examine a witness as to checks drawn by him on the bank but not presented to it and to which no reference was made on direct examination.</p> <p>14. Criminal law, § 218a*—when refusal to permit defendant, in prosecution for fraudulent tanking, to question witness as to how much he owed tank at certain times, not error. On an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. 1f 3617), for embezzlement by a bank officer, it is not error to refuse to permit defendant to ask a witness, a depositor in the bank, how much he owed the bank at certain times, when, owing to the fact that he could not know what checks had been presented and not paid, he would have been unable to answer accurately.</p> <p>15. Banks and banking, § 64*—when exclusion of evidence, on prosecution for fraudulent tanking, as to certain checks, not error. On an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. f 3617), for embezzlement by a bank officer, it is not error to ex-' elude evidence as to checks drawn on the bank by the depositor who is testifying, at the beginning of the day on which the bank examiner took possession of the bank, which did not open its doors for business.</p> <p>16. Banks and banking, § 64*—when evidence, on prosecution for fraudulent tanking, sufficient to warrant finding that entire deposit was lost. On an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. if 3617), for embezzlement by a bank officer, defendant’s contention that the evidence showed that none or only a small part of the deposit on the reception of which the indictment was based was lost, considered and held that the evidence was sufficient to warrant a finding that such deposit was not charged against an overdraft of the depositor, but that the entire deposit was lost.</p> <p>17: Customs and usages, § 20*—when custom of clearing house is valid without consent of drawers of checks. A custom established</p> <p>by a clearing house for a conditional payment of checks by the drawee bank with the right to return them to the presenting bank within a limited time if there are not sufficient funds to meet them or they are otherwise invalid, is valid, without the consent of the drawers.</p> <p>18. Banks and banking, § 64*—when admission of incompetent evidence, on prosecution for fraudulent banking, not prejudicial. On an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. f 3617), for embezzlement by a bank officer, where the evidence clearly establishes defendant’s guilt, the fact that incompetent evidence of a conspiracy of defendant to ruin the bank may have been admitted as well as other incompetent or unnecessary evidence, is not prejudicial to defendant, where the evidence establishing defendant’s guilt is of such character as to render it inconceivable that the jury would inflict only a fine and it had no power and made no attempt to fix the number of years for defendant’s imprisonment.</p> <p>19. Banks and banking, § 64*—what determines liability of defendant in prosecution for fraudulent banking. On an indictment under Hurd’s Rev. St. 1917,' ch. 38, sec. 25a (J. & A. f 3617), for embezzlement by a bank officer, the liability of defendant does not depend upon the title of the office which he held in the bank nor upon his-duties under its by-laws but upon the question "'of fact whether he assisted in keeping the bank open and doing business and receiving deposits on the day charged in the indictment.</p> <p>20. Banks and banking, § 64*—when evidence sufficient to show vice president one of officers responsible for receipt of deposits after insolvency. On an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. jf 3617), for embezzlement by a bank officer, evidence examined and held to warrant a finding that defendant, who was vice president of the bank, was one of the officers responsible for the receipt of deposits by the bank on the day charged in the indictment.</p> <p>21. Banks and banking, § 64*—when instruction, on prosecution for fraudulent banking, as to connivance, not objectionable. On an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. jf 3617), for embezzlement by a bank officer, an instruction, given for the prosecution, which states that if any officer of any incorporated bank “connives with” other officers of the bank to do a certain specified thing, he is deemed to have received the deposit on the reception of which the prosecution is based, is not objectionable on the ground that by using the term “connive” it implies that defendant’s guilt may be based upon his passive consent, especially where the other instructions given would prevent the jury from being misled.</p> <p>22. Words and phrases,—"to connive with.’’ The term “to connive with” means “to co-operate secretly with,” "to be in secret complicity with another in a wrongful act,” to take part or co-operate privily with another,” “to aid or abet,” and the like.</p> <p>23. Banks and banking, § 64*—what not essential to crime of fraudulent banking. It is not essential to the guilt of a bank officer under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. f 3617), that he shall have received the deposit himself, but he is guilty if, knowing the bank to be insolvent, he aids and assists in keeping it open and receiving deposits, even though another actually receives the deposits.</p> <p>24. Criminal law, § 304*—when not error to give instruction bearing on credibility of witness toho was codefendant. On a prosecution under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. 1f 3617), for embezzlement by a bank officer, even though one of the other defendants named in the indictment was a witness for the defense, it is not error, as bearing on the value of the testimony of such witness, to instruct, at the request of the prosecution, that defendant is the only person on trial and that it is wholly immaterial in the case whether any other defendants named in the indictment have been tried or whether any such other defendant has been convicted or acquitted, especially where it does not appear from the evidence that such witness had been tried, convicted or acquitted under such indictment, though it did incidentally appear that he had stood a trial of some kind with reference to the same bank.</p> <p>25. Witnesses, § 303*—when conviction of crime legally affects credibility. It is only conviction of an infamous crime which legally affects the credibility of a witness. •</p> <p>26. Banks and banking, § 64*—when instruction in prosecution for fraudulent banking, as to mode in which bank can accept check, conforms to law. An instruction that a bank can accept a check only in writing conforms to the provisions of sections 184 and 131 of the Negotiable Instruments Law of 1907 (J. & A. 7824, 7771).</p> <p>27. Banks and banking, § 64*—when defendant, in prosecution for fraudulent banking, not harmed by instruction relating to mode in which bank can accept cheek. On a prosecution under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J.'& A. V 3617), for embezzlement by a bank officer, the defendant is not harmed by an instruction that a bank can accept a check only in writing, where there is no evidence that the bank accepted any check orally.</p> <p>28. Banks and banking, § 64*—when refusal of instruction relating to checks, requested by defendant in prosecution for fraudulent banking, not error. On a prosecution under Hurd’s Rev. St.</p> <p>1917, ch. 38, see. 25a (J. & A. f 3617), for embezzlement by a bank officer, it is not error to refuse an instruction for defendant that every check drawn by a certain depositor on the bank was an assignment to the payee of so much of his funds in the bank, and that such fact was to be considered in determining the defendant’s guilt or innocence, where such instruction is apparently presented to procure a finding that an overdraft equalling his deposit had been created by the issuance of checks by such depositor which had never been presented.</p> <p>29. Banks and banking, § 64*—when instruction, relating to conditional payment of check, proper in prosecution for fraudulent hanking. On an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. IT 3617), for embezzlement by a bank officer, held proper, under the proofs, to instruct that if a bank pays a check conditionally, reserving the right to return it and charge it back to the person presenting it, if it finds it has not funds to meet the check, and does return it and charge it back for such reason, the loss does not fall upon the drawee bank and cannot be charged by it against the drawer.</p> <p>30. Banks and banking, § 64*—when refusal of instruction on purpose of evidence, requested hy defendant in prosecution for fraudulent hanking, not error. On an indictment under Hurd’s Rev. St. 1917, ch. 38, sec. 25a (J. & A. 1f 3617), for embezzlement by a banker, it is not error to refuse an instruction requested by defendant that certain evidence is only admissible because it tends to support the charge of insolvency of the bank and knowledge by defendant, and in making up their verdict the jury will consider that evidence on those two questions, where such evidence also has a bearing on the degree of punishment to be inflicted.</p> <p>31. Criminal law, § 570*—when refusal of instructions is not reversible error. Reversible error cannot be based upon the refusal to give instructions where the principles of law contained in them are embodied in other instructions given at the party’s request.</p> <p>32. Criminal law, § 617*—when Parole Act applies as to manner of imposing sentence. The Parole Act in force July 1, 1917 [Call. 1920 Stat. IT 4171(1) et seq.J applies as to the manner of imposing sentence where the trial was after that date, even though the crime was committed before it.</p>

<p>1. Carriers, § 407*—when passenger not guilty of contributory negligence in attempting to board street car. In an action by one against a street railway company to recover for injuries received through being thrown against the steps of a car which she boarded when it had stopped or was moving very slowly, it appearing that the car had previously stopped and taken on passengers and had started before she could reach it and had again stopped to take on another passenger, when she made the attempt which resulted in her injury, it cannot be said that if, by the exercise of due care, she could have reached the car at the place where the first passengers got on in time to have boarded it before it started, her failure to do so was contributory negligence barring her recovery.</p> <p>2. Carriers, § 447*—when street-car passenger, suing for personal injuries, not required to prove that car was standing still when she boarded it. Where, in an action by one against a street railway company to recover for injuries received in boarding its car, some counts of the declaration charge that the car was standing when plaintiff started to get on it, while there are other charges that defendant negligently managed and operated the car and that it negligently accelerated its speed, it is not essential to a recovery by plaintiff that she prove that the car was standing still when she boarded it.</p> <p>3. Carriers, § 480*—question of contributory negligence of passenger in boarding moving street car as for jury. It is not negligence per se for one to board a moving street car, but it is for the jury to decide whether it was contributory negligence under the circumstances.</p> <p>4. Carriers, § 476*—when evidence in action for injuries to streetcar passenger sufficient to sustain finding that conductor's act was tacit invitation to board car, etc. In an action to recover for personal injuries received in boarding defendant’s street car when it was either standing still or moving very slowly, evidence that plaintiff saw a man signal the car to stop after it was starting after having taken up other passengers, that the conductor opened the car door and she followed immediately behind the man who had signaled, while the vestibule door was still open, and that the con-</p> <p>ductor knew she was trying to board the car, is sufficient to support a finding that the conductor’s acts were a tacit invitation to her to get on the car, and that defendant was negligent and plaintiff was in the exercise of due care.</p> <p>5. Cabbiebs, § 366*—when tacit invitation given passenger to hoard street car. The conduct of a street railway company and its employees may be such as to constitute a tacit invitation to board the company’s car.</p> <p>6. Cabbiebs, § 493*—when instruction on due care required of street-car passenger not error. In an action against a street railway company to recover for personal injuries received in boarding its car, it is not error to give an instruction which confines to the time of the accident the requirement that plaintiff should have exercised due care.</p> <p>7. Damages, § 211*—when instruction permitting recovery for permanent injury not error. In an action to recover for personal injuries, even if the declaration does not point out the seriousness or permanency of the injuries, if it describes the injuries generally, it is proper to give an instruction permitting plaintiff to recover for permanent injury if such injury is established.</p> <p>8. Damages, § 244*—when instructions in action for personal injuries not ground for reversal. Instructions given for plaintiff in an action to recover for personal injuries, which allow the damages to be fixed by the jury upon the proof, in connection with their own observation and experience, without any witness estimating the amount, held incorrect, as permitting plaintiff to recover for matters susceptible of positive proof as to which no evidence was introduced, but, in view of the character and extent of plaintiff’s injuries as disclosed by the evidence and of the amount of the verdict, not ground for reversal.</p> <p>9. Instbuctions, § 151*—when refusal of requested instruction on degree of proof not error. It is not error to refuse, in an action to recover for personal injuries, to instruct that if the evidence on the material question is evenly balanced, the jury shall fiwl defendant not guilty, where the court has given instructions requiring plaintiff to prove the allegations of the declaration by a preponderance of the evidence.</p> <p>10. Appeal and ebbob, § 1514*—when improper remark of counsel not ground for reversal. An improper remark of counsel for plaintiff in his closing argument is not ground for reversal where defendant’s counsel objected thereto and the objection was sustained.</p>

<p>1. Brokers, § 16*—duty of one dealing with third person through broker to ascertain latter's authority. It is the duty of one dealing with a third person through a broker to ascertain the extent of the broker’s authority, and he acts at his peril if the broker exceeds that authority.</p> <p>2. Brokers, § 9*—when broker has no authority to fix time of shipment of commodity sold. Authority to a broker to sell a certain amount of a commodity at a certain price does not confer on him authority to fix the time of shipment.</p> <p>3. Contracts, § 44*—modified acceptance as rejection of proposition. An acceptance of a proposition with modifications constitutes in law a rejection of it, and the substitution in its place of a new proposition which, to constitute a contract, must itself be accepted by the other party.</p> <p>4. Sales, § 18*—when offer to purchase goods not accepted. An offer for a certain quantity of goods at á certain price “to be shipped the first half of September,” is not accepted by a reply confirming the sale, but saying “shipment to be made in September,” especially</p> <p>where it appears that it would have been impossible for the seller to have made the shipment at the time stated in the offer, and it is immaterial on the question of the existence of a contract that the purchaser would have accepted a delivery made at the time stated in the counter-proposition.</p> <p>5. Customs and Usages, § 14*—when contract presumed made with reference to existing usage or custom. Contracts made in the ordinary course of business without particular stipulations, express or implied, are presumed to be in reference to any existing usage or custom, relating to such trade, and it is always competent to resort to such usage to ascertain and fix the terms of the contract.</p> <p>6. Customs and usages, § 30*—effect of “bought and sold notes." Instruments, known as “bought and sold notes,” exchanged in negotiations for the sale of certain groceries, may be shown by the general custom and usage in force in the grocery trade at and long before the time of such negotiations not to constitute the completed contract but as contemplating the drafting and submission of a written contract by the seller to be signed by the parties.</p>

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

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1919.</p>

Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1919. Reversed and remanded with directions. Certiorari denied by Supreme Court (making opinion final).

<p>1. Wills, § 226*—what is paramount rule of construction. It is a general and paramount rule in the construction of wills that the testator’s intent should be ascertained, and, when ascertained, must govern.</p> <p>2. Wills, § 476*—when pecuniary legacies are not chargeable against real property. Pecuniary legacies bequeathed by the testator in his will are payable from his personal estate, and are not chargeable against the real property unless expressly made a charge thereon by the will, or unless the intention to make them a charge thereon arises by necessary implication from the terms of the will.</p> <p>3. Wills, § 232*—construction in light of circumstances and surroundings. A will should be construed in the light of the circumstances and surroundings of the testator.</p> <p>4. Wills, § 480*—when evidence competent on question whether pecuniary legacies are to be charged against realty. In ascertaining whether pecuniary legacies are to be charged against the real property, evidence as to the value and amount of the testator’s personal estate at the time the will was made is proper and competent.</p> <p>5. Wills, § 476*—when residuary devise does not make legacies charge on realty. A devise of the residue and remainder of the testator’s property, real and personal, does not result in making legacies a charge upon the real estate, if it appears from other provisions of the will that the testator intended the legacies to be paid from his personalty.</p> <p>6. "Wills, § 480*—when evidence shows testator did not intend pecuniary legacies to be charge on realty. Where the evidence shows that at the time a will was made the testator owned personalty of twice the amount of his indebtedness and the money bequests in the will, and the will contains a residuary clause leaving to a son the balance of his property, real, personal and mixed, including all moneys due testator at his decease, and the first codicil shows that he intended that the balance of his real estate undisposed of should become the property of his son, and directs the disposition of his real estate, after disposing of a certain part, to be according to the will, and in the second codicil he refers to the fact that he had given the son his homestead farm by the residuary clause, and, therein, he makes also certain legacies, in the form of annuities payable to his widow, liens and incumbrances upon the realty devised to the children, it will be held that it was not the testator’s intention that pecuniary legacies given by the will should be a charge upon the realty.</p> <p>7. Wills, § 480*—when presumption exists that testator did not intend legacies to be charge on realty. Where a testator expressly makes certain legacies a charge upon the real estate but does not make such provision as to other legacies, to insure their payment, the inference arises that he did not think it necessary or intend that the latter should be made a charge upon his realty.</p>

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

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzijst Slusser, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Injunction, § 269*—what is effeqt of motion to dissolve temporary injunction. A motion filed to dissolve a temporary injunction, issued pursuant to the prayer of a bill to reform a contract and to restrain the commencement and prosecution of suits to recover payment thereunder, operates as a demurrer to the bill and raises the question of the sufficiency of the bill on its face to entitle complainant to the relief sought.</p> <p>2. Reformation of instruments, § 12*—when mistakes justify reformation of instrument. That mistakes in instruments in writing may be corrected and reformed by a proceeding in equity, it must appear in such proceeding that the mistakes sought to be corrected were the mutual mistakes of the parties to the instrument.</p> <p>3. Reformation of instruments, § 38*—who are necessary parties to proceeding. On a bill to reform or nullify a contract entered into in writing between defendant, on the one part, and complainant and his brothers, on the other, such brothers are necessary parties to the proceeding.</p> <p>4. Equity, § 97*—who are necessary parties to suit. To maintain a suit in equity, all parties in interest must be made parties, either as complainants or defendants.</p> <p>5. Reformation of instruments, § 47*—when allegations- of hill are insufficient to show right to have contract annulled. On a bill to reform a written contract to conform to an alleged previous oral agreement, allegations that the signatures of complainant and his brothers who signed the contract were obtained by false representations; that defendant falsely and fraudulently advised them that the written agreement incorporated the oral agreement, that defendant, by fraud, trickery and deceit, induced complainant and his brothers to sign the contract, are not sufficient to show complainant entitled to have the contract annulled, but are mere conclusions of the pleader.</p> <p>6. Reformation of instruments, § 39*—when certain allegations in hill are rendered nugatory hy others. Allegations in a bill to reform a written contract to conform to an alleged previous oral agreement which state conclusions of the pleader that complainant’s and his brothers’ signatures were obtained to the contract by false representations and that defendant falsely and fraudulently advised</p> <p>them that it embodied the oral agreement, are rendered nugatory by further allegations that complainant and his brothers read such contract before signing it and then construed it to mean the same as the oral agreement.</p> <p>7. Reformation of instruments, § 39*—what cannot 6e set up as grounds for avoiding contract. On a bill to reform a contract, complainant cannot set up, as grounds for avoiding the contract, fraud and misrepresentation which he could and should have set up as defense in a previous action at law brought by defendant to enforce such contract.</p> <p>8. Reformation of instruments, § 37*—when complainant guilty of laches. One who delays bringing a suit to reform a contract until 16 years after its execution and over 8 years after defendant had brought an action at law to enforce it is guilty of such laches as will preclude him from the relief sought.</p>

<p>Error to the County Court of Henderson county; the Hon. James W. Gordon, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. DeSblm, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Forcible entry and detainer, § 31*—demand for possession as not necessary before bringing action against tenant holding over. Under the 4th paragraph of section 2 of the Forcible Entry and Detainer Act (Rev. St. ch. 57, J. & A. t 5843), a demand for possession is not necessary before bringing an action for forcible detainer against a tenant holding over.</p> <p>2. Forcible entry and detainer, § 67*-—title as not litigable. An action of forcible detainer by a lessee against a tenant holding over is possessory only, and the question of title cannot be tried, but only the right of possession.</p> <p>3. Forcible entry and detainer, § 67*—holdover tenant as not entitled to deny right of possession of lessor or second tenant. In an action of forcible detainer brought by a second tenant against a holdover tenant, each of them ‘ having received leases from the same testamentary trustee, defendant cannot be heard to deny the right either of the trustee or of the plaintiff to possession.</p>

<p>1. Bills and notes, § 86*—when drafts are payable to bearer. Where one, authorized by a milling company to buy grain for it and to draw the company’s drafts upon itself for grain bought and not shown to have been without authority to draw bearer paper, settled grain accounts by charging off his personal credits against the sellers and issued drafts on the company in fevor of the sellers but without any intention that the latter should have any interest in the drafts or that the drafts should be' delivered to or indorsed by them, and he himself disposed of.such drafts by indorsement, held that such drafts were payable to bearer within the meaning of Negotiable Instruments Law, sec. 9 (Hurd’s Rev. St. 1917, ch. 98, sec. 27, J. & A. If 7648).</p> <p>2. Banks and banking, § 154*—when collecting bank does not warrant genuineness of indorsements on drafts payable to bearer. A collecting bank does not warrant the genuineness of indorsements on drafts payable to hearer by presenting such drafts for payment.</p>

<p>1. Appeal and error, § 1245*—when appellant cannot complain that chancellor considered evidence received in another suit. Appellant cannot complain that the chancellor considered evidence received in another suit after having specifically requested him to do so.</p> <p>2. Divorce, § 58*—how far divorce decree is decree in rem. A divorce decree, in so far as it provides a lien on real estate for the payment of alimony, is a decree ‘in rem and not in personam.</p> <p>3. Divorce, § 106*—when wife entitled to alimony until all of dower interest is assigned. Under a decree of divorce providing that, until the wife's dower interest is assigned to her in certain lands, she should receive a designated amount per year for her alimony and that the payment of such alimony should he secured by a lien upon certain real estate then owned by her husband, the wife is entitled to such alimony until all of her dower interest is assigned to her unaffected by the fact that she receives a portion of her dower interest, and it will be error, in a subsequent suit for partition, to reduce the amount of alimony in proportion to the amount of the payments of dower.</p> <p>4. Dower—mode of assignment. Dower can be assigned otherwise than by metes and bounds.</p> <p>5. Dower, § 145*—when dower must he assigned in common. In cases where the widow is entitled to dower of a part or portion held as tenant in common, the dower must be assigned in common.</p> <p>6. Partition, § 110*-—what provision in order of distribution unwarranted. Provision in the order of distribution in partition that the master in chancery, after making certain payments, should pay the balance of the proceeds of (he sale of the real estate to one of the counsel appearing for one of the parties until certain other litigation should be terminated, held unwarranted.</p> <p>7. Partition, § 110*—master in chancery as custodian of proceeds of sale. The master in chancery is the person authorized by law to have the custody of the proceeds of the sale of real estate in partition suits until he is authorized to disburse them by a decree of distribution to the parties entitled to them.</p> <p>8. Divorce, § 106*—when decree for alimony not at variance with recognized principles of law. A divorce decree, providing for the payment of alimony to the wife after the death of the husband during her lifetime or until her dower should be assigned and making the payment of such alimony a lien on the hustiand’s real estate, held, under the circumstances, not at variance with recognized principles of law.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the</p> <p>October term, 1918.</p> <p>Certiorari denied by Supreme Court (making opinion final).</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>Appeal from the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>Error to the Circuit Court of Cass county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the April term, 1919.</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, 1919.</p>

<p>1. Intoxicating liquors, § 152*—what sufficient proof that city is anti-saloon territory. A certificate of the city clerk showing that the question of making the city anti-saloon territory had been submitted to vote and had been carried would be sufficient proof of the fact in a prosecution for selling liquor if no board of election commissioners existed in such city.</p> <p>2. Intoxicating liquors, § 5*—meaning of word “clerk" in local option statute. The word “clerk,” as used in the local option statute, means “Board of Election Commissioners” when such a board exists. (Hurd’s Rev. St. 1917, ch. 43, § 1, J. & Á. If 4637.)</p> <p>3. Intoxicating liquors, § 140*—tohen certificate of hoard of election commissioners and not certificate of city clerk is prima facie evidence that city is anti-saloon territory. Since the word "clerk,” as used in the local option statute, means “Board of Election Commissioners” when such a board exists (Hurd’s Rev. St. 1917, ch. 43, § 1, J. & A. f 4637), it follows that, as applied to a city which has such a board, Hurd’s Rev. St. 1917, ch 43, § 7, J. & A. 1i 4643 must be construed to require the board to record the result of an election under such statute and to make the certificate of such board instead of the certificate of the city clerk prima facie evidence that the city has become anti-saloon territory.</p> <p>4. Intoxicating liquors, § 162*—when judgment of conviction will he reversed for insufficiency of evidence that city was anti-saloon territory. Where the certificate of the city clerk offered in evidence in a prosecution for selling liquor was incompetent to prove that the city was anti-saloon territory and such fact was not proved in any other way, the judgment of conviction will be reversed.</p>

<p>1. Pleading, § 161*—what is effect of filing affidavit of meritorious defense. The effect of filing an affidavit of meritorious defense is to limit the defense to the facts set up therein.</p> <p>2. Pleading, § 157*—granting of leave to file amended or additional affidavit of merits as discretionary. The question whether a defendant shall he granted leave to file an amended or additional plea or affidavit of merits is very largely within the sound discretion of the trial judge.</p> <p>3. Appeal and error, § 1362*—when ruling on matter of filing amended or additional plea or affidavit of merits will constitute reversible error. The manner in'which a trial judge exercises his discretion in the matter of defendant’s application for leave to file an amended or additional plea or affidavit of merits it subject to review, and when an abuse of such discretion is found, it will constitute reversible error.</p> <p>4. Pleading, § 157*—how discretion in matter of application for leave to file amended or additional plea or affidavit of merits should not be exercised. The discretion of the trial judge in the matter of an application for leave to file an amended or additional plea or affidavit of merits should not be so exercised as to defeat justice but should be liberally exercised in favor of allowing such new pleadings as are essential to the presentation of a party’s cause of action or defense.</p> <p>5. Bills and notes, § 369*—when payment can be proved under pleadings in action on note. When no affidavit of claim is filed and no affidavit of meritorious defense is either filed or necessary, the defense of payment of the promissory note sued on can be proved under the general issue, but when an affidavit of claim is filed with the declaration and an affidavit of meritorious defense filed in connection with a plea of the general issue or other plea does ■ not include payment as the defense or one of the defenses relied on, payment cannot be proved.</p> <p>6. Appeal and error, § 1362*—when refusal to permit filing of additional affidavit of merits by defendants in action on note is reversible error. That plaintiff had the contracts, which resulted in the giving of the note sued on, in his possession; that he had refused defendants’ request that they be permitted to see such contracts; that the court had refused an order for inspection; that</p> <p>the transaction in which the note was given had been closed for 7 years and more, and that defendants had forgotten the details thereof until their minds were refreshed by an inspection of the contracts when produced by plaintiff as a witness, held to be sufficient reasons why the defense of payment 'was not included in defendants’ original affidavit of merits and to constitute it an abuse of discretion and error for the court to refuse to permit the filing of an additional affidavit stating such defense. '</p>

<p>1. Contracts, § 186*—when subsequent contract constitutes construction of original contract. A contract, granting the manufacturer of a patented article a discount from the royalty, provided for in the original contract, held, to he a construction hy the parties of the original contract in the matter of whether the royalty accrued on the manufacture or only on the manufacture and sale of the article.</p> <p>2. Patents, § 27*—right to manufacture patented article as carrying with it right to sell manufactured article. The right to manufacture a patented article carries with it the right to sell the article manufactured when it is from its sale that the manufacturer must derive the benefit of his right to make it, but where the right to sell is implied from the right to make, it is the right to make that is primarily the basis of royalty.</p> <p>3. Patents, § 33*—when royalty contract properly construed as requiring payments of royalty on number of articles manufactured. Construction of a royalty contract between the owner of patent rights and the manufacturer of the patented article as requiring the payment of the royalty on the number of articles manufactured and not only on the number manufactured and sold, held proper.</p>

<p>Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>1. Attorney and client, § 81*—attorney as owing good faith and exercise of best ability to client. In view of the confidential relation existing between an attorney and his client, the former owes to the latter absolute good faith and the exercise of his best ability in the litigation which he is employed to conduct.</p> <p>2. Attorney and client, § 93*—when purchase by attorney from client will be treated as constructively fraudulent. Where an attorney purchases from his client the property which is in litigation, it is not necessary in order that the client may be relieved from the consequences of the transaction that he show actual fraud and imposition on him by the attorney, but the burden is on the attorney to show perfect fairness, adequacy of consideration and equity in the transaction, and, if he fails to make such proof, a court of equity will treat the case as one of constructive fraud.</p> <p>3. Attorney and client, § 93*—when transaction by attorney with client's property will be held, to have been made for client.</p> <p>The conduct of an attorney in purchasing from his client the property in litigation will be closely scrutinized by the courts, and, if he has not acted with strict fairness, adequacy and equity, the transaction by him and in his name with his client’s property will be held to have been made for his client.</p> <p>4. Attorney and client, § 93*—when land transactions between attorney and client are voidable by latter. Transactions between an attorney and his client whereby the title to land involved in litigation passes to the attorney are voidable at the election of the client irrespective of the fairness or unfairness of the contract, provided such election is exercised within a reasonable time.</p> <p>5. Attorney and client, § 93*—what does not prevent client from obtaining relief where attorney has purchased land which was in litigation. The fact that shares of stock which an attorney had Induced his client to accept as payment for land, which land was in litigation and which the attorney had purchased from such client, were made out in the name of the client’s wife, held not to in any way interfere with the right of the client to relief in a subsequent suit by him against the attorney for an accounting.</p> <p>6. Attorney and client, § 93*—when dismissal of bill by client against attorney will be error. Dismissal for want of equity of a bill by a client against an attorney for an accounting, the basis of which bill was the purchase by the attorney from the client of land which was in litigation, held error.</p>

<p>Error to the Circuit Court of Jersey county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Appeal and error, § 1252*—beneficial error not ground for complaint. A party cannot complain on appeal of an error that is beneficial to him.</p> <p>2. ’ Guardian and ward, § 41*—fact that decree for guardian’s sale fails to protect purchaser is not available to guardian. The fact that the decree for- a sale by a guardian fails to protect the interests of the purchaser and his assignees is of no concern to the guardian.</p> <p>3. Guardian and ward, § 50*—application of rule of caveat emptor to guardian’s sale. The purchaser at a guardian’s sale comes under the rule of caveat emptor.</p> <p>4. Guardian and ward, § 50*—guardian does not warrant title to lands sold under order of court. A guardian, selling the lands of his wards under order of court, does not warrant the title and is not bound to furnish a merchantable one.</p> <p>5. Guardian and ward, § 62b*—when deeree in guardian’s proceeding will be affirmed on guardian’s appeal. Where a life estate in lands is conveyed to a father with remainder to his children as a class and prior to the termination of the life estate the guardian of the living children sells their- interest, under order of court, for the purpose of obtaining money for their education and maintenance and subsequently the Supreme Court holds that the rights of the unborn children of the life tenant were not divested by the sale and that the purchaser at such sale did not acquire a merchantable title, and thereafter the guardian petitions the County Court that entered the order of sale for an order that will let in the after-born children of the life tenant and that will clear the title of the purchaser at the sale and the Circuit Court which disposes of the petition finds and decrees that the sale did not divest the unborn children of the life tenant of their interest in the lands and that the money then in the</p> <p>hands of the guardian vested solely in the children of the life tenant who were living at the time of the sale and orders distribution on the basis of such finding, the decree of the Circuit Court will be affirmed on appeal by the guardian.</p> <p>6. Guardian and ward, § 57*—when not error to refuse to permit filing of cross petition in guardian’s proceeding. It is not error for the trial court to refuse to permit the filing in a guardian’s proceeding of a cross petition when the averments therein are not sufficient to warrant the relief therein prayed for.</p> <p>7. Costs, § 77*—when costs of appeal will he taxed to guardian individually. Where an appeal is improvidently taken by a guardian for the purpose of advancing the interests of persons whom he has no authority to represent, the cases of the appeal will be taxed to him individually.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard • in this court at the April term, 1919.</p>

<p>1. Rajxboads, § 762*—when proper to refuse peremptory instruction for defendant in action for death at crossing. In an action for the death of plaintiff’s decedent who was killed as a result of a collision at a highway crossing between the automobile which he was driving and defendant’s interurban electric car, held that the refusal of defendant’s motion for a peremptory instruction was proper, there being evidence from which without doing violence in the eye of the law the jury could find the verdict for plaintiff which it returned.</p> <p>2. Ratleoads, §§ 733, 738*—when evidence sufficient to sustain verdict for plaintiff in action for death at crossing. In an action for the death of plaintiff’s decedent who was killed as a result of a collision at a highway crossing between the automobile which he was driving and defendant’s interurban electric car, held that, considering all of the evidence, it could not be said that the verdict for plaintiff was wrong on the facts either as to the charge of negligence on the part of the defendant or as to the charge of contributory negligence on the part of the deceased.</p> <p>3. Railroads, § 709*—when evidence of other accidents at same crossing admissible in action for death at crossing. Where it is charged in the declaration in an action for wrongful death, occurring as a result of a collision at a highway crossing between the automobile which the deceased was driving and defendant’s interurban electric car, that the railroad was so obscured by embankments, weeds, trees and other objects near by that persons approaching the crossing could not see the approach of cars, and proof in support of such allegation is offered, it will not be error to admit proof of other accidents at the same crossing at previous times under similar circumstances for the purpose of showing the existence of inherently dangerous conditions at the crossing and knowledge thereof on the part of the defendant.</p> <p>4. Appeal and error, § 1514*—when corporate defendant not injured by argument of counsel. Where, in an action for wrongful death, occurring as a result of a collision at a highway crossing between the automobile which the deceased was driving and defendant’s interurban electric car, counsel for plaintiff began to quote in his argument to the jury what some newspaper had said about corporations that had “no soul to damn” but did not complete the quotation, he being stopped by an objection that was sustained by the court, held that it was not apparent how defendant could have been injured by the incomplete quotation.</p> <p>5. Death, § 73*—when instruction on subject of damages is not erroneous. An instruction in an action for wrongful death that if the jury believed from a preponderance of the evidence that plaintiff was entitled to recover, etc., its verdict should be for the plaintiff and it should assess the damages at such sum as it believed from the evidence the party for whose use the suit was brought had actually sustained, if any, was not erroneous because it did not in express terms limit the damages to be allowed to “pecuniary” damages.</p> <p>6. Instructions, § 151*—when not error to refuse requested instructions. It is not error to refuse instructions, the subject-matter of which is fully and fairly covered by the instructions given.</p> <p>7. Death, § 67*—when verdict for $5,000 for death of man 64-years old is not excessive. A verdict for $5,000 for the wrongful death of a man 64 years of age, well to do, actively engaged in the business of conducting three farms and in good health with an expectancy of more than 15 years, held not excessive.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>1 Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>1. Intoxicating liquobs, § 145*—when questions in prosecution for selling in anti-saloon territory are for jury. In a prosecution for selling liquor in anti-saloon territory, where the evidence for the State consisted chiefly of the testimony of two detectives, held that the determination of the credibility of the witnesses and the question of fact were the province of the jury and were settled by its verdict.</p> <p>2. Evidence, § 10*—judicial notice of adoption hy Danville of act providing for creation of hoard of election commissioners. The court will take judicial notice of the fact that the City of Danville, Illinois, has adopted the act providing for the creation of a board of election commissioners for such city. (Hurd’s Rev. St. 1917, ch. 46, art. 1, see. 10, H 164, J. & A. If 4938.)</p> <p>3. Elections, § 24*—control of election commissioners over elections. ' The act providing for the creation of hoards of election commissioners in cities, towns and villages adopting the act gives them substantially absolute control over all elections within their respective jurisdictions.</p> <p>4. Intoxicating liquobs, § 5*—what are duties, under Local Option Act, of election commissioners. Under the provisions of the Local Option Act, all of the duties imposed upon the clerks of their respective political subdivisions which have not adopted the act creating boards of election commissioners devolve upon such hoards where they exist.</p> <p>5. Intoxicating liquobs, § 152*—what certificate is prima facie evidence that territory is anti-saloon. The certificate provided for by section 7 of the Local Option Act (J. & A. If 4643), relative to proof of the result of an election under such act, must he held to mean one executed by the board of election commissioners when such a hoard exists in the city wherein the election was held.</p> <p>6. Intoxicating liquobs, § 162*—when conviction of selling will he reversed for failure of proof that territory was anti-saloon. Where the certificate of the city clerk, admitted in a prosecution for selling liquor in anti-saloon territory to prove that the city had become territory of that character, was incompetent by reason of the fact that a hoard of election commissioners existed in the city and there was no other proof of the fact, the conviction cannot he sustained.</p>

<p>1. Pleading, § 220*—when court does not have authority to render judgment on merits after sustaining special demurrer to declaration. Where a special demurrer to the declaration is sustained but plaintiffs neither abide by their declaration nor amend, the court has no authority to subsequently hear evidence and find the issues for the defendants and render judgment on such finding.</p> <p>2. Pleading, § 225*—what is effect of plaintiffs’ failure to file amended declaration in accordance unth-rule after special demurrer is sustained. Where a special demurrer to the declaration is sustained, plaintiffs should be ruled to file an amended declaration by a day certain and, upon their failure to do so, the suit may be dismissed.</p> <p>3. Pleading, § 223*—what is proper form of judgment where plaintiffs abide by declaration after special demurrer has been sustained. Where plaintiffs abide by their declaration, a special demurrer to which has been sustained, the proper form of judgment is that they take nothing by their suit and that defendants go hence without day, etc.</p> <p>4. Sheriffs and constables, § 95*—when declaration in action on sheriff’s bond is not subject to demurrer. The fact that one of the counts in the declaration in an action on a sheriff’s bond for a wrongful levy on certain personal property alleges certain damages which are not recoverable under the law with others which are recoverable does not make such count subject to demurrer, since on the trial only such damages would be permitted to be recovered as were authorized by law.</p> <p>5. Limitation of actions, § 108*—how defense can be raised. The defense of the statute of limitations in an action at law cannot be raised by demurrer but only by plea.</p>

<p>1. Roads and bridges, § 61*—when posting of notices in proceedings to lay out and open highway is not insufficient. Even if one of the notices which the statute, relating to the laying out and opening of highways over private lands, requires to be posted in three of the most public places in the town or district [Hurd’s Rev.</p> <p>St. 1917, ch. 121, sec. 76, Call. 1916 Stat. f 10000(76)], etc., was posted in what was not strictly one of the most public places, the failure to conform to a strict construction of the law in respect to such one notice—no complaint being made of the location of the other two notices posted—was but a mere irregularity and did not destroy the jurisdiction of the highway commissioners.</p> <p>2. Roads and bridges, § 54*—when petition for laying out and opening of highway is not insufficient. The fact that a tenant in possession with an unrecorded contract for a deed was not named in the petition for the laying out and opening of a highway does not deprive the highway commissioners of jurisdiction.</p> <p>3. Roads and bridges, § 54*—when petition for laying out and opening of highway is not insufficient. The mere fact that a railroad company whose right of way will be crossed by the proposed highway is not mentioned as an owner in the petition for the laying out and opening of such highway does not deprive the highway commissioners of jurisdiction.</p> <p>4. Roads and bridges, § 54*—when petition for laying out and opening of highway is not insuffi'dent. It could not have been the intention of the legislature that highway commissioners could not acquire jurisdiction of the subject-matter of a petition for the laying out and opening of a highway unless such petition set out with strict accuracy every owner who had legal title to any of the lands involved.</p> <p>5. Roads and bridges, § 59*—statutory notices of laying out and opening of highway are jurisdictional. Notices required to be given by the statute in proceedings for the laying out and opening of a highway are jurisdictional and, unless they are given in the manner required, the highway commissioners are not authorized to act.</p> <p>6. Roads and bridges, § 59*—when proceedings for laying out and opening of highway will he void for want of notice to railroad company. When, in proceedings for the laying out and opening of</p> <p>a highway which will cross the right of way of a railroad company, notice is not served upon the company as required by Hurd’s Rev. St 1917, ch. 121, secs. 103, 104 [Call. 1916 Stat. 10000(103), 10000"(104)], the proceedings will be void.</p> <p>7. Roads and bridges, § 102*—certiorari is proper way to review record in proceedings to lay out and open road. The common-law writ of certiorari is a proper way to review the record of highway commissioners in proceedings to lay out and open new roads in order to determine the validity of their acts.</p> <p>. 8. Roads and bridges, § 86*—jurisdiction of equity to restrain laying out and opening of highway. Equity has jurisdiction of a suit to restrain the laying out and opening of a highway on the ground that the proceedings therefor are void.</p> <p>9. Roads and bridges, § 82*—remedies available to person aggrieved by laying out and opening of highway. Apparently, proceedings for the laying out and opening of a highway furnished one of the few instances where a person aggrieved has concurrent legal and equitable remedies.</p>

<p>Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>Error to the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>Appeal from the Circuit Court of Douglas county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>1. Injunction, § 382*—when evidence will he stricken from record on appeal. On appeal from a judgment in a suit for an injunction entered in accordance with the findings of a master in chancery to whom the issues were referred, where the part of the record containing what purports to be evidence taken before the master is not signed by him nor is there any certificate by him that this evidence was all of the evidence heard by him, though it is followed by a certificate signed by a third person which states that “the above and foregoing is a true and correct copy of all the evidence offered by the respective parties in the case at the hearing held before the master in chancery,” and the evidence is not preceded by any order in the record identifying it as a report of the master filed in the cause on a particular day, such evidence will be stricken from the record.</p> <p>2. Injunction, § 382*—when pages will he stricken from record on appeal. On appeal from a judgment in a suit for an injunction,</p> <p>pages of the record which purport to set out the testimony of the witnesses heard by the court will be stricken from the record where there is no certificate of evidence preserving the evidence so heard, no certificate by the court that it was all of the evidence heard and nothing in the record to show that it contains all of the evidence heard upon hearing.</p> <p>3. Appeal and error, § 726*—necessity of preserving evidence in equitable proceeding. The presumption obtaining in actions at law, where the record fails to show that it contains all the evidence heard on the trial of the cause, that the evidence heard was sufficient to sustain the judgment, does not prevail in equitable proceedings, and the evidence in support of the decree must be preserved.</p> <p>4. Appeal and error, § 735*—when master’s report is part of record. In an equity proceeding, where the evidence is all heard by the master and he files his report in the cause, the report becomes a part of the record.</p> <p>5. Appeal and error, § 726*—how evidence in equity proceeding may be preserved. If the evidence in an equity proceeding is heard by the chancellor in open court, it may be preserved by a certificate of evidence or a finding of the facts in the decree.</p> <p>6. Appeal and error, § 1270*—what is presumption when decree recites facts found by court. Where a decree recites the facts found by the court from the evidence, it will be presumed, in the absence of anything in the record showing the contrary, that the facts thus found were proved by competent evidence, and the finding cannot be reversed unless all the evidence heard on the trial is preserved.</p>

<p>Appeal from the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. Wapthr Bbewek, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>1. Paupers, § 1*—who not within law making support of paupers a public charge. One who has sufficient means for his own support is not within the provisions of the law making the support of paupers a public charge, and the county has no authority to support him.</p> <p>2. Paupers, § 8*—when county may recover from pauper’s estate. A county may recover of the estate of one supported and maintained by it as a pauper the actual cost of such support and maintenance from the time when, through receiving a pension, he became financially able to support himself.</p> <p>3. Paupers, § 8*—what not presumed when county attempts to recover from pauper’s estate. It will not be presumed that, because no attempt was made by the county to charge one whom it had received and maintained as a pauper for such support and maintenance, it intended such support to be a charitable gift for which no recovery can be had, upon its being developed after the death of such person that for a portion of the time he was so maintained he was financially able to support himself.</p>

<p>1. Partition, § 13 8*—when complainant not entitled to solicitor’s fee. In a suit for partition, held that the proceeding was not an amicable one and that the defenses interposed were not simply formal, frivolous or vexatious but were substantial and in good faith, with the views on defendants’ part of protecting their interests and securing their just proportion of the properties, and that, consequently, it was inequitable that the decree therein should require defendants to pay any part of complainant’s solicitor’s fee.</p> <p>2. Infants, § 38*—eligibility of solicitor to appointment as guardian ad litem. The solicitor for a party to a suit who is not of legal age may be also appointed guardian ad litem for such party.</p> <p>3. Infants, § 41*—right of guardian ad litem to act as his own solicitor. A guardian ad litem who is a lawyer may act as his own solicitor. ,</p> <p>4. Infants, § 45*—attorney, acting as guardian ad litem and solicitor, as not entitled to fees in each capacity. Semble, that an attorney who acts as both guardian ad litem and solicitor for a minor party is not entitled to an allowance of fees in each capacity.</p> <p>5. Infants, § 45*—when person acting as guardian ad litem and solicitor will, on appeal, be deprived of allowance for services as guardian ad litem. One to whom, a joint compensation has been allowed for acting as both solicitor and guardian ad litem for a minor litigant, will not be permitted on appeal, where an allowance in such dual capacity is held improper, to retain such allowance for his services as guardian ad litem.</p>