Volume 216 — Illinois Appellate Court Reports

<p>1. Master and servant, § 716*—when questions of instructions to motorman and his violation thereof are for jury. In an action by an employee to recover for personal injuries received through a collision while acting” as motorman of defendant’s street car, where the evidence is conflicting as to what instructions plaintiff received regarding the operation of his car and whether he violated those instructions, such questions are for the jury.</p> <p>2. Master and servant, § 716*—when question of master’s negligence is for jury. In an action by an employee to recover for personal injuries received through the collision of the car of which he was motorman with another car of defendant, on a foggy morning, it is for the jury to determine whether defendant was negligent in the operation of such car in not holding it at an intermediate station hut running it to the end of the line and returning without stopping at such station, knowing plaintifi’s car to be somewhere ahead of it in the fog and that he expected such other car to wait at the station.</p> <p>3. Appeal and error, § 800*—when Appellate Court will not pass on ruling on motion for change of venue. The Appellate Court will not pass upon the propriety of the trial court’s ruling upon a motion for a change of venue unless the motion, the evidence heard thereon and the trial court’s decision have been preserved in the record by a bill of exceptions.</p> <p>4. Appeal and errob, § 1094*—necessity that bridf give page of abstract where erroneous evidence appears. Where errors are urged in regard to the admission of evidence, the page of the abstract where the error appears must be referred to in the .brief.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph H. Pitch, 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. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.</p>

<p>1. Equity, § 539*—when party petitioning for vacating of decree is entitled to hearing as matter of right. Where no motion is made in the trial court to strike a petition under section 19 of the Chancery Act (J. & A. If 899) to vacate decree and the petition makes the showing required under such section, the petitioner becomes entitled as a matter of right to be heard in the case.</p> <p>2. Mechanics’ mens, § 200*—effect of dismissal of hill to foreclose lien. Where, after a decree pro confesso and sale of the premises, a bill to foreclose a mechanic’s lien against premises owned by two persons is properly dismissed on the demurrer of one of such owners, both of whom filed petitions under section 19 of the Chancery Act (J. & A. If 899), praying that" the decree be opened and they be heard, an end is put to the whole proceeding to establish the lien, regardless of any defect in the petition filed by the other owner.</p> <p>3. Equity, § 539*—construction of statute relating to vacating of decrees. Section 19 of the Chancery Act (J. & A. If 899) is remedial and should receive a liberal construction to eSect the purposes which it has in view.</p> <p>4. Equity, § 539*—right, under statute relating to vacating of decrees, to file demurrer. The hearing contemplated by section 19 of the Chancery Act (J. & A. 1f 899) is not limited to one upon the merits, and defendant is not required to raise issues by answer, but may file a demurrer if he be so advised.</p> <p>5. Mechanics’ liens, § 156*—when suit to foreclose lien is barred by limitations. It is a proper ground in bar to a suit to foreclose a mechanic’s lien that the bill was not brought within the 2-j ear period of limitation.</p> <p>6. Mechanics’ liens, § 200*—when bill to foreclose lien is properly dismissed. In a suit to foreclose a mechanic’s lien, where a demurrer filed by the owners of the property which sets up the statute of limitations is sustained, the bill is properly dismissed, since complainant could have no equities against the other defendants if it had none against the owners.</p>

<p>1. Elevators, § 3*—when question whether plaintiff, suing for injuries in elevator accident, was rightfully occupying office in defendant’s building is for jury. In an action to recover for personal injuries received in an elevator of defendant’s building, where it appears that for more than 4 years plaintiff had occupied a room in an office under an arrangement with the lessee of such office, her name being on the outer door of the suite, such occupancy being open and evident, that she was known to the superintendent of the building, the engineer, the elevator starter, the operator of the elevator in which she was injured and the janitor, and there is no evidence that defendant ever made any objections to such occupancy, though the lease of such office provided that the tenant was not to sublet and was not to permit the use of the premises by any others than himself, his agents and servants, the question whether she was rightfully occupying such office and with defendant’s implied consent is for the jury.</p> <p>2. Elevators, § 3*—when evidence tends to show that plaintiff, suing for injuries in elevator accident, was rightfully on elevator as passenger. In an action to recover for personal injuries received from an elevator in defendant’s building, evidence that plaintiff entered the elevator, while it was standing open to receive passengers, for the purpose of being carried up to an office in defendant's building in which she had sublet and occupied space openly for more than 4 years without interference by defendant, tends to show that she was rightfully on the elevator as a passenger, notwithstanding the lease of the tenant from whom she sublet prohibited him from subletting or from permitting the occupancy of such office by others than himself, his agents and servants.</p> <p>3. Elevators, § 2*—what degree of care and diligence in operation required as to passenger. The owner of a building operating elevators for the use of passengers is required to exercise at least a high degree of care and diligence not to injure a passenger rightfully using the elevator.</p> <p>4. Elevators, § 23*—when allegations in declaration in action for injuries in elevator accident are sufficient after verdict. In an action to recover for personal injuries received by one in entering a passenger elevator in defendant’s building for the purpose of being carried to the office in which she occupied space, the allegation of defendant’s ownership of the elevator, its negligent opera-, tion thereof and the injuries resulting to plaintiff therefrom, and of plaintiff’s exercise of care, held sufficient, after verdict, to support a judgment in plaintiff’s favor.</p> <p>5. Limitation of actions, § 68*—when amendments to declaration in action for injuries in elevator accident do not state new and different cause of action. In an action to recover for personal injuries received in using a passenger elevator in defendant’s building, an amendment which substitutes the allegation that plaintiff had an “arrangement or agreement with a tenant of said building” whereby she was permitted and entitled to occupy an office in the space leased by the tenant, for the allegation that plaintiff was a “tenant in said building,” and an amendment adding a statement as to her falling down the elevator shaft to the allegation of her being crushed between the elevator and gates and “some part of the structure adjacent thereto,” do not state a new and different cause of action falling within the bar of the statute of limitations.</p> <p>6. Elevators, § 29*—when verdict for plaintiff, suing for injuries in elevator accident, is not manifestly against weight of evidence. In a.n action to recover for personal injuries received in a passenger elevator in defendant’s building, held that a verdict for plaintiff was not manifestly against the weight of the evidence. .</p> <p>7. Evidence, § 444*—when testimony of medical witness is error because based on subjective symptoms. In an action to recover for personal injuries, it is error to permit a medical witness for plaintiff, not testifying to the result of examination of plaintiff for treatment, to express an opinion as to plaintiff’s future condition, based on periods of noncomprehension and mental dullness on the part of plaintiff after the beginning of the action, they being subjective symptoms which could have been purely voluntary and under plaintiff’s control.</p> <p>8. Evidence, § 175*—when declarations of injured party are competent. Declarations of the injured party are only competent when made as a part of the res gestee, or to a physician during treatment, or upon an examination prior to and without reference to the bringing of an action to recover damages for the injury complained of, unless the examination should be made at the instance of the defendant with a view to trial, and they should be free from all suspicion of being made with reference to future litigation.</p> <p>9. Evidence, § 448*—when testimony of medical expert should he stricken. In an action to recover for personal injuries, testimony of an expert medical witness for plaintiff with regard to whether or not epilepsy will follow as a result of the injury should be stricken out as speculative, where such testimony shows that there is not, in his opinion, “a reasonable certainty” that epilepsy will develop, but only that it is probable.</p> <p>10. Evidence, § 398*-—what expert witnesses may testify to. Expert witnesses may testify or give their opinions only as to future consequences that are shown to be reasonably certain to occur.</p> <p>11. Appeal and error, § 1772*—when error requires reversal. The rule that whenever error is shown to exist, it will compel a reversal unless the record shows affirmatively that the error was not prejudicial, applied as compelling the reversal of a judgment for plaintiff, in an action to recover for personal injuries in which an expert witness for plaintiff was permitted, over objection, to testify, in substance, that it was probable that epilepsy would result from the injuries, and which evidence was strongly emphasized by plaintiff’s counsel in his argument.</p>

<p>1. Municipal corporations, § 381*—validity; of street paving contract based on specifications prescribing patented product. If the specifications for street paving prescribe a creosote oil which cannot be made without infringing a concededly valid patent, a contract based thereon is void, under section 74 of the Local Improvements Act (J. & A. If 1466).</p> <p>2. Municipal corporations, § 381*—determination of question of restriction of free competition among bidders for local improvement by specifying patented article. In determining whether there has been a restriction of free competition among bidders in violation of section 74 of the Local Improvements Act (J. & A. If 1466), there is no difference in principle between a case where the ordinance specifies a patented article and a case where the specifications under the ordinance specify such an article.</p> <p>3. Injunction, § 71*—jurisdiction to restrain performance of illegal contract. A court of equity has jurisdiction to restrain the performance of a contract which tends to restrict competitive bidding or which is otherwise illegal or void.</p> <p>4. Patents, § 38*—evidence as to whether street-paving specifications prescribe oil infringing patented oil. In determining whether the specifications for street paving prescribe an oil which will infringe a patented oil, the unsupported opinion of the patentee that there is no infringement will not prevail over the contrary opinion of expert witnesses based upon facts disclosed by laboratory tests made by them.</p> <p>5. Patents, § 38*—what does not avoid infringement. Infringement of a patent cannot be avoided merely because tests are necessary to .determine infringement.</p> <p>6. Patents, § 38*—how question of infringement may he determined. In determining whether or not a patent is infringed, any method of test may be employed which will fairly determine the question.</p> <p>7. Patents, § 38*—when patent for oil infringed. On a bill to restrain the performance of a contract for street paving on the ground that the specifications prescribe an oil which will infringe a valid patent, in determining whether or not such infringement will result, the tests made by complainants’ experts are not required to be confined to the tests set forth in such specifications, but must be carried far enough to show the chemical or physical constituents, and, if the tests disclose that such constituents are the products mentioned in the patent, the patent is infringed.</p> <p>8. Patents, § 38*—what infringement of patent depends upon. Infringement of a patent depends upon a violation ■ of the claims of the patent as distinguished from the specifications.</p> <p>9. Municipal corporations, § 381*—estoppel of patentee of oil prescribed by street paving specifications. On a bill to restrain the performance of a contract for street paving on the ground that the specifications prescribe an oil which will infringe a valid patent and that therefore the contract is invalid under section 74 of the Local Improvements Act (J. & A. If 1466), the statement of the patentee, while on the stand, that no prosecution for infringement will be commenced against any one seeing fit, under a contract with the city, to furnish the oil called for by the specifications, while estopping the patentee, does not invalidate the patént.</p> <p>10. Municipal corporations, § 381*—when street-having specifications prescribe oil which infringes patent. Specifications for a contract for street paving held, under the evidence, to prescribe an oil which infringes a valid patent and to tend to foster a monopoly and, therefore, to render the contract void.</p>

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

<p>1. Brokers, § 6*—when real estate broker is agent of purchaser. Where one in the real estate business is told by another that he desires to purchase certain property and asks the former to get him a price on it, which he does or purports to do, he acts as the other’s agent, notwithstanding, when asked by him whether he would have to pay the commissions, he said that he always got commissions from “the other side.”</p> <p>2. Fraud, § 68*—who liable for fraud on purchase of realty. One who takes title to property from the owner and transfers it to a purchaser with knowledge of. and for the purpose of furthering a scheme of the purchaser’s agent to defraud the purchaser is liable to such purchaser.</p> <p>3. Conspiracy, § 12*—when charge of conspiracy will be treated as mere surplusage. In an action on the case in the nature of a conspiracy, the gist of the action is not the conspiracy alleged, but the tort committed and the resultant damage, and when the tort and the damage "proceed from a" series of connected acts, the averment that they were done by several pursuant to a conspiracy. does not so change the nature of the action, that if the wrongful acts are shown to have been done by one only, it cannot be maintained against him alone; in such case the charge of conspiracy will be considered as mere surplusage.</p>

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

<p>Interlocutory appeal from the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court.</p>

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

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

<p>Telegraphs and telephones, § 20*—liability of telegraph company for failure to intercept and cancel telegram sent Toy plaintiff. There can be no recovery against a telegraph company for its failure to succeed in intercepting and canceling, before its delivery to the sendee, a business telegram previously delivered to it by plaintiff for transmission.</p>

<p>1. Street railroads, § 131*—when evidence in action for personal injuries does not show that car was traveling at excessive speed. In an action to recover for personal injuries received through being struck by a street car, where the preponderance of the evidence tends to prove that the car ran only a short distance after striking plaintiff, most of the witnesses estimating the distance at from 12 to 18 feet, it is reasonably inferable that the car was not traveling at excessive .speed.</p> <p>2. Negligence, § 79*-—when and where; person must look for danger. Where it is incumbent upon one, as an act of caution to look, he must look when and where he can act safely with reference to any danger ^bserved, else the element of caution is wanting.</p> <p>3. Street railroads, § 95*—when person approaching tracks does not discharge duty of looking for cars. If one crossing a street railway track looked for approaching cars only at the instant she was struck, she failed to look with the care and caution essential to her safety, and must be considered as having approached the track and gone into danger without looking.</p> <p>4. Street railroads, § 98*—when person passing behind car and struck by car on parallel track is guilty of contributory negligence. Where, in an action to recover for personal injuries received by one, as she passed behind the street car from which she had alighted, through being ‘struck by a car approaching from the opposite direction on the track which she was trying to cross, it appears that both of the cars were of the large pay-as-you-eiiter type, with round corners, and there was a clearance of 2 feet between them, it will be held that it was physically possible for plaintiff to have seen the approaching car while yet a sufficient distance from tier to have allowed her to act to avoid the danger, and, in passing on the track in such circumstances, she will be held to have been guilty of contributory negligence as a matter of fact.</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 Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at tlie March term, 1919.</p>

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

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

<p>1. Mechanics’ liens, § 195*—when general contract is admissible in evidence in foreclosure proceeding. In a proceeding to foreclose a mechanic’s lien for the value of materials furnished under a contract with the general contractor, the general contract is admissible in evidence, without regard to whether or not section 21 of the Mechanics’ Lien Law in force July 1, 1913 (Call. 1916 Stat. If 7159), which was subsequent to the date of the contract and subcontract, operates retroactively.</p> <p>2. Mechanics’ liens, § 5*—how lien laws are to be construed. Mechanics’ liens laws are in derogation of the common law and are to be strictly construed when in conflict therewith.</p> <p>3. Mechanics’ liens, § 5*—right to indulge presumption in construing lien laws. In construing mechanics’ liens laws, no presumption can be indulged as being included which does not specifically appear.</p> <p>4. Mechanics’ liens, § 5*—retroactive effect of amendatory law of 191S. Section 21 of the Mechanic’s Lien Law in force July 1, 1913 (Call. 1916 Stat. K 7159), is not to be given a retroactive effect so as' to make it applicable to contracts executed before it went into effect, but the rights of the parties to such contracts are to be adjudged according to the law in effect when they were executed.</p>

<p>1. Courts, § 83*—what appealable orders of Probate Court are cognizable in Circuit Court. All appealable orders of the Probate Court which are not entered in a proceeding either in law or in equity are cognizable in the Circuit Court.</p> <p>2. Courts, § 83*—when appeal to Circuit Court of order of Probate Court is properly dismissed for lack of jurisdiction. An order entered in the Probate Court in a proceeding to sell real estate to pay an intestate’s debts directing one who had been the highest bidder at such sale to pay to the administrator the balance due on his bid is an order entered in a proceeding which is, in its essence, a chancery case, and an appeal therefrom to the Circuit Court is properly dismissed for lack of jurisdiction.</p> <p>3. Appeal and error, § 38*—conflicting statutes. Wherever section 124 of the Administration Act (J. & A. If 173) and sections 122 and 123 of the Courts’ Act (J. & A. IfTT 3248, 3249) conflict with section 8 of the Appellate Court Act (J. & A. If 2968) and section 91 of the Practice Act (J. & A. f .8628), the latter sections, being the later enactments, must prevail.</p>

<p>1. Contempt, § 53*—when contention that proceeding for criminal contempt must he prosecuted in name of People of the State is without force. Where, on a proceeding to punish for a criminal contempt, all of the proceedings, including the order of commitment, are entitled in the name of the People, a contention that such a proceeding must be prosecuted in the name of the People of the State is without force.</p> <p>2. Contempt, § 70*—when order of commitment for criminal con-1 tempt sufficiently sets forth in what contempt consisted. Where an order committing one for criminal contempt discloses that he, personally, came into court upon the hearing of the account of a guardian who had been theretofore removed by the Probate Court, and was asked by the trial judge to take the witness stand and refused to do so, that the court requested that he be sworn as a witness on the hearing and directed that the clerk swear him and that he thereupon refused to be sworn, stating in open court that he did and would refuse to be sworn and did and would refuse to testify, and that the court found that the proceedings so recited were had in open court, when the court was in session and in the presence of the court, its officers and the attending public, such order sufficiently sets forth in what the contempt consisted.</p> <p>3. Criminal law, § 393*—how criminal prosecutions can he reviewed. All criminal prosecutions sought to be reviewed, whether by the Supreme Court or by the Appellate Court, must be brought up by writ of error.</p> <p>‘ 4. Contempt, § 74*—order committing for criminal contempt not 'reviewahle hy appeal. Appeal will not lie from an order committing one to imprisonment for criminal contempt.</p>

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

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

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

<p>1. Process, § 39*—ineffectiveness of service by publication on resident of Germany. Service by publication On a resident of Germany with whom communication was impossible by reason oí the state of war existing between that power and other powers is of no effect.</p> <p>2. Trusts, § 128*—right to remove alien enemy trustee without notice. A trustee under a will who, by reason of being an alien enemy, is incapable of performing his duties may be removed without notice.</p> <p>3. Trusts, § 135*-—how word “survivor” is used. The word “survivor,” in connection with the power of one of ,two trustees to act, is used not only with reference to a condition arising where one of such trustees dies, but also as indicating a trustee who continues to administer the trust after his cotrustee is disqualified, has been removed, renounces or refuses to act.</p> <p>4. Trusts, § 135*—when approval of advances by only one of trustees appointed by will is sufficient. Under a will which provides that certain advances shall be approved and certain acts done by trustees appointed by the will “or the survivor of them,” the advances may be made if only one of such trustees approve, the other being unable to act by reason of being an alien enemy.</p> <p>5. Trusts, § 126*—when not essential that all of beneficiaries under will he made parties to proceeding to remove trustee appointed hy will. It is not essential that all the beneficiaries under the will be made parties to a proceeding to remove one of the trustees appointed thereby where all of the beneficiaries whose rights are affected are before the court and the provisions of the will which are involved are separate and distinct and have no bearing on the rights of those not made parties.</p>

<p>1. Patents—nature. A patent is a right of exclusion which comes into existence solely as the result of a contract with the government.</p> <p>2. Patents—what is source of right of patentee to make, use and sell patented article. The right of a patentee to make, use and sell the patented article is not derived from the patent but exists at common law and without special authority from the government.</p> <p>3. ' Patents—effect. The effect of a patent is to secure to the patentee for a specified time the right to exclude all others from making, selling or using the invention.</p> <p>4. Patents; § 10*-—assignment. A patentee may, by an instrument in writing, transfer the whole patent, comprising the exclusive right to make, vend or use the invention, or an undivided share of such exclusive right, or the exclusive right thereunder for a part of the United States, and a transfer in any of such ways is an assignment and vests in the assignee a title in so much of the patent itself with a right to sue infringers.</p> <p>5. Patents, § 27*—what constitutes license. Any right in a patent which is less than an undivided part interest therein is a license and gives no right to bring suit upon the patent.</p> <p>6. Patents, § 27*—special form of language not necessary to written license. To constitute a written license by a patentee, no special form of language is necessary.</p> <p>7. Patents, § 27*—how determined whether agreement is license. To ascertain whether an agreement with regard to a patent constitutes a license, similar principles of construction to those used in determining the meaning of contracts generally apply.</p> <p>8. Patents, §§ 10, 27*—what character of contract as assignment or license depends on. Whether a contract as to a patent constitutes an assignment of the patent or a license depends upon the effect of the whole contract.</p> <p>9. Patents, § 10*—what does not constitute assignment. A contract between plaintiff, a patentee, and defendant whereby plaintiff grants to defendant “the exclusive right to use and to have used the said” patented article “as embodied in the aforesaid letters patent and applications,” for a specified term, is, in legal effect, no more than a license and does not constitute an assignment.</p> <p>10. Patents, § 29*—when licensee estopped to show that licensor’s patent infringes another patent. A licensee of the exclusive right to use and have used a patented machine who ordered, received and used a number of them, paying several of the instalments of royalties provided for in the contract, and also wrote the licensor that the only reason further payment was not made was that he had no money, is estopped to show, in an action to recover royalties due under the contract, that such patent infringes another patent.</p>

<p>1. Trade-marks and trade names, § 26*—what shown hy evidence on hill for unfair competition. On a bill for unfair competition seeking to enjoin defendant from the use of the word “Hump” in connection with the manufacture and sale of hairpins and similar, articles, evidence held to show that the words “Hump” and “See that hump,” which had for 27 years been used by complainant in connection with hooks and eyes manufactured by it, had become synonymous in the trade with complainant and their secondary meaning had come to indicate complainant’s goods, that the use of the word “Hump” by defendant in connection with its hairpins tends to deceive, that defendant and its predecessor knew of complainant’s use of those words when they began to use them and that such use by defendant was for the purpose of obtaining the benefit of complainant’s advertising.</p> <p>2. Trade-marks and trade names, § 26*—wvtaf is gist of suit for unfair competition. The gist of a suit for unfair competition is the selling or disposing of his own goods by defendant as those of complainant, to complainant’s damage.</p> <p>3. Jtjdgmient, § 428*—when defense of res adjudicata cannot he raised against hill to restrain unfair competition. A judgment of the District Court of Columbia on appeal from the commissioner of patents is interlocutory, consequently the defense of res adjudicata based on such a judgment cannot be raised against a bill, to restrain unfair competition, though the trade-mark involved is the same in both proceedings.</p> <p>4. Trade-marks and trade names, § '26*—when conduct constitutes unfair competition. If the conduct of one trader is such as to lead the public to believe that his goods are those of another trader, to the latter’s injury, such conduct constitutes unfair competition, irrespective of the registration of trade-marks by either of them.</p> <p>5. Trade-marks and trade names, § 21*—when right to protection against unfair competition is not lost hy expiration of patent. A trader’s right to protect himself against unfair competition through the use by others of words which have been so long applied to a patented article manufactured by him as- to have acquired a secondary meaning indicating his goods, is not lost by reason of the fact that the patent on such article has expired.</p> <p>6. Tbadk-mabks and trade names, § 22*—extent to which arbitrary trade name may be protected. The right of one who has adopted an arbitrary trade name and applied it to a particular line of goods to protection against unfair competition in the use of such name is not limited to that particular line of goods, but he may also protect the use of the name to any extent necessary to protect the reputation of his goods which will include protection against the use of such name by a subsequent trader as applying to any one of the species of the general kind of goods manufactured and' sold by the first trader.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>1. Mortgages, § 657*—who liable for costs on foreclosure as being unsuccessful party. On proceedings to foreclose a trust deed in which a cross-bill to foreclose another trust deed is filed, where the decree directs the sale of the property, giving priority to cross complainant’s lien, the owner of the property is the unsuccessful party and costs should be taxed against her.</p> <p>2. Mortgages, § 658*—construction of foreclosure decree as to costs. A decree in foreclosure which directs that, out of the proceeds of the sale, the master “shall retain his fees, disbursements and commissions, and see that all unpaid costs are paid to the persons entitled to receive the same,” and then directs the order of distribution, is to be construed as requiring that all costs be paid, including those advanced by a party whose lien was postponed to that of another party, before the proceeds are distributed among the lienholders.</p>

<p>1. Words and phrases—“nonfeasance”; “misfeasance”; “malfeasance” Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; malfeasance is the doing of an act which a person ought not to do at all.</p> <p>2. Principal and agent, § 149*—duty of agent to third persons. An agent may, in some cases, owe a duty to third persons at the same time that he owes a duty to his principal.</p> <p>3. Principal and agent, § 149*—duty of agent to regard rights of others. The common duty to regard the rights of others is none the less binding upon a person because he happens at the time to be an agent.</p> <p>4. Principal and agent, § 173*—when president and general manager of lessee of theater is personally liable for personal injuries to third persons. The president and general manager of a lessee of a theater who has general control of the theater and its operation and makes, subleases and contracts for the use of the theater auditorium, is personally liable for personal injuries to a child, taking part in the rehearsal of a play for which the theater had been leased, through burns caused by her clothing being set afire by contact with a switchboard' not guarded as required by ordinance, of the condition of which defendant had knowledge.</p> <p>5. Principal and agent, § 173*—when president and general manager of lessee of theater is jointly liable loith principal for personal injuries to third person. The president and general manager of the lessee of a theater who has general control of the theater and its operation is jointly liable with his principal, the lessee company, for personal injuries received by one lawfully on the stage through coming in contact with an unguarded switchboard, of the condition of which such president knew.</p> <p>6. Negligence, § 47*—when unguarded switchboard on theater stage is proximate cause of burns received by child. In an action by a child to recover for burns received through her costume, which was decorated with tinsel, being set fire to by coming in contact with an unguarded switchboard at one side of the stage while she was taking part in a rehearsal for which the theater had been leased, the failure to guard the switchboard, and not the tinsel on her costume, was the proximate cause of her injury.</p>

<p>1. Pleading, § 362*—what is effect of sustaining motion to strike affidavit of defense. The sustaining of plaintiff’s motion to strike the affidavit of defense from the files is tantamount to ordering it stricken.</p> <p>2. Appeal and error, § 1236*—when failure of trial court to actually order striking of affidavit of defense is not ground for reversal. A defendant who, after plaintiff’s motion to strike the affidavit of defense has been sustained, elects to stand by the affidavit and prays an appeal, will not be heard to contend, as ground for reversal, that it nowhere appears in the order or elsewhere that the court actually ordered 'the affidavit stricken.</p> <p>3. Corporations, § 166*—when transferee of stock may recover dividends from corporation. A transferee of corporate stock may recover of the corporation dividends declared by it thereon subsequently to such transfer and at least 4 years after the transferor’s death which such corporation has appropriated and applied in liquidation of a debt due to it from the transferor.</p>

<p>Error to the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the' March term, 1919.</p>

<p>1. Garnishment, § 127*—<protection of interest of equitable owners. Courts of law will notice and protect the interest of equitable owners in a garnishment proceeding.</p> <p>2. Garnishment, § 127*—application of equitable principles. In garnishment proceedings the court will apply equitable principles.</p> <p>3. Garnishment, § 24*—when proceeds of sight draft drawn by consignor of goods to his own order and placed with bank as collateral are subject to garnishment as funds of consignor. Where a consignor of goods drew a sight draft to his own order on the purchaser, attaching the bill of lading thereto, and placed them with a bank as collateral for a demand note given by him for a loan negotiated with it at the time, such note providing that the collateral and any moneys on deposit with the bank should be applicable to secure the payment of any past or future obligation of the consignor held by the bank and that such securities should be a continuing security for all óf such obligations and that in case of default by the maker the bank could sell the collateral and could become the purchaser thereof, and it appears that at the time the demand note was given and for a month thereafter the consignor had with the bank a daily balance more than sufficient to meet the demand note, and that on collecting another draft, held as collateral for the same note, the bank had credited the proceeds thereof on the note, it was held that the bank was not the purchaser of the sight di;aft but took it from such consignor for collection, the proceeds to be credited to his account when collected, and that the proceeds of the draft were subject to garnishment in the hands of another bank, to which it had been forwarded for collection, as funds of the consignor, notwithstanding! the consignor subsequently went into bankruptcy and was indebted to the bank for a large amount.</p>

<p>1. Landlord and tenant, § 264*—when constructive eviction tafees place. There can only be a constructive eviction where the premises leased are rendered useless to the tenant or the tenant is deprived, in whole or-in part, of the possession or enjoyment of them as a result of the wilful, wrongful act of the landlord, which may be either through the wilful omission of a duty on his part or by the positive commission of a wrongful act.</p> <p>2. Landlord and tenant, § 265*—when landlord’s omission of duty will be basis of constructive eviction. To be the basis of a constructive eviction, the omission of a duty by the landlord or the wrongful act committed by him must be of a grave and permanent character, evidencing an intention on his part that the tenant shall be deprived of the enjoynlent of the premises.</p> <p>3. Landlord and tenant, § 269*—when failure to repair constitutes constructive eviction. Where the landlord has covenanted to repair, and the premises become untenable and useless for the tenant’s purposes, for want of proper repairs, and, upon receiving notice of the conditions, the landlord neglects or refuses to make the needed repairs, the tenant may claim a constructive eviction and abandon the premises.</p> <p>4. Landlord and tenant, § 206*—when landlord not required to repair wall. Semble, that in the absence of a covenant to do so, the landlord is under no obligation to repair a wall which is not one of the supporting foundation walls of the building but is a part of the demised premises having no relation to any other part of the building.</p> <p>5. Landlord and tenant, § 264*—when fact that premises become untenable does not constitute constructive eviction. The mere fact that the tenant’s premises become untenable cannot constitute a constructive eviction, if such condition, is not the result of any wrongful act of omission or commission on the landlord’s part. •</p> <p>6. Landlord and tenant, § 326*—when not error, in action for rent defended on ground of eviction, to direct verdict for landlord. While the question whether the landlord’s acts or omission do or do not amount to an eviction is for the jury if the character of such acts or omissions is ambiguous, an instruction to find the issues for the landlord is not error where there is no evidence in the record showing or tending to show any intention on his part to interfere with the tenant’s possession.</p> <p>7. Landlord and tenant, § 326*—when not error, in action for rent defended on ground of constructive eviction, to direct verdict for landlord. In an action for rent under a lease in which defendant sets up a constructive eviction, where it appears that the landlord engaged competent architects and contractors to remedy the conditions complained of within a reasonable time after they were brought to his attention, such conditions being caused by a leakage which was in no way the result of the landlord’s act or omission and being temporary and having been remedied shortly after the tenant left the premises, it is not error to instruct the jury to find for the plaintiff.</p>

<p>1. Municipal corporations, § 1038*—liability of individual using sidewalk in personal business for dangerous condition created. One using a sidewalk in the conduct of his personal business is responsible for a dangerous condition created thereby.</p> <p>2. Municipal corporations, § 879*—to whom city streets belong. City streets, which include the sidewalks, from side to side and from end to end belong to the people, and they primarily have the right to the free and unobstructed use thereof.</p> <p>3. Municipal corporations, § 918*—right of abutter to use sidewalk for loading. Abutters upon the street may use the sidewalk in front of their premises for the purpose of loading and unloading goods or merchandise, and may thus temporarily obstruct the street if it is reasonably necessary to do so.</p> <p>4. Municipal corporations, § 918*—what is’ duty of abutter using sidewalk for loading and unloading goods. Where an abutter upon the street uses the sidewalk for loading and unloading goods, it is his duty to see that such use does not" make the sidewalk dangerous for persons rightfully using it.</p> <p>5. Municipal corporations, § 1098*—when judgment against abutter for personal injuries sustained by person falling on icy sidewalk mil not be disturbed. In an action against one to recover for personal injuries received through slipping and falling on ice on the sidewalk in front of defendant’s premises, where the evidence tends to show that while there was more or less ice on all of the sidewalk, there was a space 4 feet wide from defendant’s premises to the curb which was much more slippery than the other portions of the sidewalk, and that this condition was caused by the dragging of large baskets of clothes between defendant’s laundry and the curb, a judgment for plaintiff will not be disturbed.</p> <p>6. Trial—when counsel for plaintiff in action for personal injuries may state that witness had been sent for. In an action to recover for personal injuries, it is not error for plaintiff’s counsel to state that they had wired and sent money to one whom they desired as a witness, where plaintiff had testified that such witness had picked her up from the sidewalk after she fell and received the injuries.</p> <p>7. Appeal and error, § 1538*—when omission in instruction is not .ground for reversal. While, in an action to recover for personal injuries, it is error to instruct the jury that plaintiff was required to exercise ordinary care for her own safety, and if they believed that she was exercising such ordinary care, she could recover, since such instruction does not tell the jury that they must believe these facts from the evidence, the omission is not ground, for reversal where the issues were simple, easily understood and the jury were fully instructed on the point in other instructions.</p> <p>8. Instructions, § 14*—rnecessity of repeating statement as to duty to find facts from evidence. It is not necessary to tell the jury several times in the same instruction that they must find the facts from the evidence.</p> <p>9. New trial, § 69*—what newly discovered evidence warrants granting of new trial. Newly discovered evidence such as will warrant the granting of a new trial must be positive and conclusive and capable of definitely settling the controversy.</p> <p>10. New trial, § 102*—when motion for new trial on ground of newly discovered evidence is properly denied. A motion of defendant to grant a new trial in an action to recover for personal injuries on the ground of newly discovered evidence is properly denied where the affidavit submitted shows that the evidence merely contradicts the testimony of plaintiff and of one of defendant’s witnesses as to where the accident occurred.</p>

<p>1. Taxation, § 188*—construction of word “year.” . In view, Hurd’s Rev. St. ch. 131, sec. 1 (J. & A. 11102), defining the word “year,” that term, as used in section 8 of the Revenue Act of 1898 (J. & A. f 9523), is to be construed as meaning a calendar year.</p> <p>2. Vendos and purchaser, § 168*—how taxes agreed to he prorated will he divided. Where it is agreed between a vendor and purchaser that the taxes shall be prorated, the vendor is chargeable with the taxes from January 1 until the date of the sale and the purchaser with those accruing from the latter date.</p> <p>3. Deeds, § 196*—right to show assumption of incumbrance was part of consideration. The fact that the warranty deed by which property was conveyed contains no condition that the conveyance is subject to the assumption of an incumbrance, and makes no reference to any incumbrance on the property, does not prevent the introduction of evidence to show that the assumption was a part of the consideration for the transfer.</p> <p>4. Deeds, § 196*—right to introduce evidence showing real consideration. It is always proper to introduce evidence showing the real consideration for a transfer, of property.</p> <p>5. Tender, § 4*—when tender in form of certified Chech is not insufficient. A tender in the form of a certified check is not rendered insufficient by reason of the fact that it recited that it was in payment of all amounts due to that date, where the court finds, on a suit to enforce the demand, that the amount so tendered was the amount due.</p> <p>6. Mortgages—when tender sufficiently shown to stop accruing of interest. On a suit to foreclose a mortgage, where it appears that the proper amount was tendered before the first suit involving the same mortgage was filed; that tender was again made in the plea filed therein; that on the hearing the money was again tendered in open court, but in each instance .the tender was refused; that after the dismissal of that suit the proper tender was again made but refused and thereupon defendant stated the money was ready at any time complainant should change her mind, and the only evidence regarding defendant’s not continuing to keep the tender in. readiness was that, after complainant had refused the certified check tendered, defendant had cashed it, it was held that the tender and that it was held by defendant subject to complainant’s call were sufficiently shown to stop the accruing of interest.</p> <p>7. Evidence, § 34*—presumption of continuance of condition. It is a rule of law that where a condition is once shown to exist, it continues until the contrary is shown.</p>

<p>1. Appeal and error, § 800*—when sufficiency of evidence to support verdict cannot be considered. The question of the sufficiency of evidence to support a verdict cannot be considered where no motion for a new trial appears in the bill of exceptions, which is the only place where such a motion can properly appear.</p> <p>. 2. Contracts, § 335*—when recovery may be had on quantum meruit on failure to perform contract to make bequests. In an action to recover for board and nursing rendered to a person who had promised to pay for the services by bequeathing the home in which he lived to the plaintiff, where it appeared that the deceased by a later will revoking a former will failed in his promise to the plaintiff, a contention that the plaintiff could not recover on a quantum meruit, there being an express contract as to the manner of payment, could not be sustained, as the failure of the deceased to keep his obligation to compensate the plaintiff through his will entitled the plaintiff in equity and justice to recovery on a quantum meruit.</p> <p>3. Appeal and error, § 801*—when suggestion that evidence varies from bill of particulars is not properly before Appellate Court. A suggestion that the evidence varies from the bill of particulars is not properly before the court on appeal when the bill of particulars is not preserved in the bill of exceptions, as it should be.</p> <p>4. Witnesses, § 41*—when husband not incompetent to testify in action by wife. In an action to recover payment for board and nursing rendered a person who agreed to compensate the plaintiff through his will, where the agreement contemplated that the compensation should be the exclusive property of the plaintiff, the husband of the plaintiff was not incompetent to testify as to the transaction, being within the exception of section 5 of the Statute as to Evidence and Depositions (J. & A. If 5522).</p> <p>5. Contracts, § 377*—when evidence of both wills made by deceased is admissible in action for failure to make bequest. In an action to recover payment for board and nursing rendered a person who agreed to compensate the plaintiff through his will, where it appeared that the deceased made one will providing for the plaintiff and in a subsequent will omitted to make such provision, evidence of both wills was properly admitted, as the first will tended to show that the services were not gratuitous, and were rendered under a promise of payment, and the second will tended to show that the promise had failed, leaving the plaintiff with the right to recover the reasonable value! of the services.</p>

<p>1. Railroads, § 519*—what protection is required as to children playing about cars. A railroad company is not required to fence and guard its yards and tracks so securely as to prevent entrance by children, and need not provide greater protection to children playing about its cars than is owed to ordinary trespassers.</p> <p>2. Railroads, § 519*—what is duty to minors trespassing on right of way. The duty which a railroad company owes to minors trespassing upon its right of way is to refrain from willingly and wantonly inflicting injury.</p> <p>3. Railroads, § 519*—steel coal car with holes or openings in bottom is not attractive nuisance. A steel railroad car of the ordinary type used for carrying coal which has holes or openings in the bottom of the car, furnished with steel lids fitted with hinges, so that such lids may be raised and fastened against the inside of the car, is not an attractive nuisance, since the car itself cannot be claimed to be attractive, and the holes or lids covering the same are hidden from sight and may be discovered only by the exercise of considerable physical agility.</p> <p>4. Railroads, § 519*—iron lid intended to cover holes in bottom, of steel coal car as not attractive nuisance. An appliance such as an iron lid intended to cover holes in the bottom of a steel railroad car used for carrying coal, which lid may be raised and fastened to the inside of the car by a hasp or pin, cannot be held to be a nuisance attractive to children, as such an appliance can have no more attraction than an ordinary door.</p> <p>5. Railroads, § 567*—when declaration in action for death of 8-year-old child hilled by falling of lid in bottom, of coal car is demurrable. A declaration in an action for the death of an 8-year-old child who was killed while trespassing on railroad property, and while in an ordinary steel railroad car used for carrying coal, by the falling of a large lid or door covering a hole or opening in the floor of said car, is demurrable as failing to present any legal liability on the part of the railroad company, neither the car nor the lid being an attractive nuisance.</p>

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

<p>1. Street railroads, § 133*—when questions of negligence and contributory negligence in action for death of driver of motorcycle are for jury. In an action for the death of a driver of a motorcycle, where the plaintiff alleged that a street railway company, by its motorman, permitted a passenger to alight while the car was in motion so that the passenger came in contact with plaintiff’s decedent, and he was thrown from the motorcycle, sustaining fatal injuries, and where the evidence conflicted as to the accident and the place where the street car stopped, the questions of negligence of the defendant and contributory negligence of the plaintiff’s intestate were questions of fact for the decision of the jury.</p> <p>2. Street railroads, § 131*—when verdict for defendant in action for death of driver of motorcycle is supported by evidence. In an action for the death of the driver of a motorcycle who was thrown from his machine by coming in contact with a passenger alighting from a street car, where two witnesses for the plaintiff testified that the street car stopped at the ?‘far” side of the street, and five witnesses for the defendant testified that the car stopped at the “near” side of such street, there being some evidence of contradictory statements by the plaintiff’s witnesses before the coroner, the .evidence did not preponderate in favor of the plaintiff, and in fact the jury would not have been justified in finding in favor of the plaintiff, the verdict in favor of the defendant being abundantly supported by the evidence.</p> <p>3. Street railroads, § 109*—when declaration in action for death of driver of motorcycle does not state cause of action. A declaration, in an action for the death of a driver of a motorcycle who was thrown from his machine by colliding with a passepger alighting from a street car, which alleges negligence in permitting the passenger to alight from the car while in motion, fails to state a cause of action, as it is a common practice for passengers to Step down and stand on the car steps preparatory to alighting when the -car actually stops, and the permitting of such act, or the unlatching of the car door to permit such act, cannot be considered negligence.</p> <p>4. Street railroads, § 144*—when instruction in action for death of driver of motorcycle does not constitute reversible error. In an action for the death of a driver of a motorcycle who collided with a passenger who was alighting from a street car, the giving of an instruction that the plaintiff could not recover if the decedent drove his motorcycle past the" street car while it was discharging passengers, in violation of a city ordinance, and that such conduct caused or contributed to the accident, was not reversible error, as the evidence showed violation of the ordinances contributing to the accident.</p> <p>5. Negligence, § 8*—when holding that violation of speed ordinances does not necessarily constitute negligence per se has no application. Authorities holding that the violation of ordinances regulating the manner and speed at which a vehicle may be operated in a public street does not necessarily constitute negligence per se, have no application where the violation of the ordinances necessarily contributed to cause the accident.</p>

<p>1. Municipal corporations, § 115*—when evidence shows bonds were not paid for by treasurer or by any one for him,. In a mandamus proceeding to compel a former city treasurer to give a detailed account of his receipts and expenditures as treasurer, where a question of fact arose as to whether such official obtained possession of seven bonds from a bank irregularly, and where the treasurer contended that such bonds were paid for by him, the evidence warranted a conclusion that the bonds were not paid for by the treasurer, or by any one for him, the evidence by the official on the question being unconvincing and unreliable.</p> <p>2. Mandamus, § 150*—when respondent waives -error in overruling of general demurrer to petition. Where a general demurrer to a petition for mandamus was overruled, the respondent by pleading over waived any error of the court in its ruling.</p> <p>3. Mandamus, § 150*—right to raise question of sufficiency of verification of petition by demurrer. The question of want of sufficient verification of a petition for mandamus cannot be raised by demurrer. •</p> <p>4. Pleading, § 376*—what is remedy for want or insufficiency of verification. Neither want of an affidavit or verification to a pleading nor the insufficiency of the verification is ground for demurrer, the remedy being by motion to strike the pleading from the files.</p> <p>5. Mandamus, § 149*—necessity that petition be verified. Since the passage of the act of 1874 relating to mandamus (J. & A. 1f 7330 et seq.), a verification of the petition is unnecessary.</p> <p>6. Jury, § 28*—going to'trial without ashing for jury as waiver of right to jury trial. In a mandamus proceeding the right to a trial by jury is waived where the respondent proceeds to trial without asking for a jury.</p> <p>7. Jury, § 28*—when objection to trial by court comes too late. An objection to the trial of a cause by the court without a jury comes too late when it is made after the court has heard the case and announced its conclusions.</p> <p>8. Mandamus, § 120*—when proceeding to compel former city treasurer to pay over money to successor may be maintained in name of People. In a mandamus proceeding to compel a former city treasurer to give a detailed account of his receipts and expenditures as treasurer, and to pay over certain money to his successor in office, where the purpose of the proceeding is to compel the payment of money into the city treasury, so that the city may discharge its obligations by paying to a bank, appearing as relator, amounts due upon certain bonds, the money retained by the treasurer is public money, and the proceeding may be maintained in the name of the People.</p> <p>9. Mandamus, § 69*—when proceeding to compel former city treasurer to pay over money to successor may be maintained notwithstanding expiration of respondent’s term of office. In a mandamus proceeding to compel a former city treasurer to account for his receipts and expenditures as treasurer and to pay over money alleged to be retained, it cannot be urged that the proceeding will not lie because of the expiration of the term of office of the respondent, as the remedy is available to compel the performance of acts which were not performed during the official’s term of office, and which should have been performed.</p> <p>10. Mandamus, § 69*—when writ will lie to compel city treasurer to pay over money to successor. Where a city treasurer fails to perform his duty of paying certain money to his successor in office, which money is retained by the treasurer for his own use, when it was collected to discharge certain bonds, mandamus is available to compel performance of the duty, and it cannot be contended that the proceeding is merely to enforce the payment of money and that for such reason the remedy is not available.</p>

<p>1. ' Contempt, § 70*—when order adjudging toitness guilty of criminal contempt for perjury is unjustified and indefensible. An order of court adjudging a witness in a suit guilty of perjury, and therefore of criminal contempt, and directing his confinement to the county jail for 30 days, is without justification and is indefensible, there being no indictment nor charge of offense, no form of trial and no evidence in the record showing on what the court based its conclusion that the defendant was guilty.</p> <p>2. Constitutional law, § 175*—necessity of according opportunity to be heard to person accused of crime. A person accused of an offense is entitled to be informed of the charge against him, and to be accorded an opportunity to be heard by himself and by counsel in exculpation of the offense charged.</p>

<p>1. Crvn. service—what judgment of commission not reviewable on appeal. Where an applicant for the position of Cement Tester passed the Civil Service examinations and was employed as such officer, and subsequently his salary was increased without additional examination, and the pay rolls showing the officer’s salary as “Cement Tester” were approved and certified, it was obvious that the Commission did not think that the increase in salary evidenced any change in duties requiring an additional examination, and it was the judgment of such Commission that the officer still held the position of Cement Tester, which judgment could not he reviewed on appeal.</p> <p>2. Civil service—what is effect of additional work, required of “dement Tester.” Where a person appointed as “Cement Tester” with the duties of testing cement, brick, sand and other building material was later required to test oils, brass, cast iron, paints, varnishes and other materials used in construction, the change was only a change in quantity, and there being no change in the quality of his duties, he remained as the officer designated as “Cement Tester.” '</p> <p>3. Civil service—when demotion of “Cement Tester” does not conform to law. Where a “Cement Tester” appointed by the Civil Service Commission was notified that another person had been appointed Chief Tester of the Testing Division, and that he should resume his duties as Cement Tester, the demotion was ineffective and not in conformity with the requirements of the Civil Service Law, and although such demotion was reported to the Civil Service Commission and the officer’s salary reduced, he still retained the only legal title that he and his office had ever had, which was that of Cement Tester.</p> <p>4. Civil service—when limiting of duties of “Cement Tester" is mere subterfuge. Where the duties of an officer designated as “Cement’ Tester” were far broader than his title indicated, he being the-head of the testing department, and being so recognized by the Civil Service Commission and other officers, the act of limiting his duties to the actual testing of cement, when his department had plenty of work to do and was a large and active laboratory, was a mere subterfuge, and since another person had been appointed Chief Tester, after which the Cement Tester was “laid off,” because of lack of work, it was apparent that the laying off was brought about so that his. position might be held by others.</p> <p>5. Civil service—when “Cement Tester” neither legally demoted nor laid off. Where a Cement Tester who was in fact the head of a testing department was transferred to another station, his salary reduced, and subjected to unfounded charges before the Civil Service Commission, and where a subordinate was appointed Chief Tester, when there was no such position, the “Cement Tester” being “laid off” for want of work, the facts tended strongly to show an effort to evade the Civil Service Law, enacted to protect honorable and efficient employees from arbitrary ouster, and the Cement Tester was neither legally demoted nor laid off.</p> <p>6. Civil service, § 30*—when notice to Commission of reinstatement of “Cement Tester” is without effect. Where an officer holding the legal designation of “Cement Tester” was demoted by limiting his duties, another person being appointed Chief Tester, and such officer was later laid off for lack of work, a notification sent to the Civil Service Commission that the officer was reinstated as Cement Tester, was without effect, as the office referred to in the notice did not involve the same duties, salary, and standing that the officer formerly held as Tester. .</p> <p>7. Civil service, § 30*—accomplishmentsof reinstatement and recovery of salary in single proceeding. Civil service reinstatement and the recovery of salary may be accomplished in one proceeding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles Williams, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Liens, § 2*—when printing company cannot claim lien on customer’s electrotype cuts. Where a printing company receipted for certain electrotype cuts belonging to a customer, and expressly agreed to return such cuts after a number of labels were printed, it could not claim a lien upon the cuts for the amount of its services in printing the labels, when such lien was asserted to arise by implication from a custom of the trade, as a contract by implication could not prevail against the express contract.</p> <p>2. Liens, § 2*—when evidence does not establish custom giving printer right to lien on customer’s cuts. A lien arising from custom must include the circumstance that it is asserted and enjoyed by one party without objection from the other, and when witnesses for a printer testified of a custom whereby printers asserted the right to hold cuts of a customer used in printing until such printing was paid for, the evidence fell short of the required proof as to a custom, merely tending to show the existence of a custom of printeis to make certain claims.</p> <p>3. Liens, § 2*—when printer cannot claim lien on customer’s cuts. The right to retain goods upon which labor has been expended until the bill therefor has been paid does not apply where cuts used in printing are intrusted to a printer for the printing of labels, and where such labels are delivered to the customer, and the cuts retained, there being no labor done upon the cuts themselves.</p> <p>4. Liens, § 2*—what evidence necessary to establish general lien for balance of accounts. A general lien for a balance of accounts is founded on custom and is not favored, but must be established by strong evidence of a settled and uniform custom, or a particular mode of dealing between the parties.</p>

<p>1. Appeal and error, § 433*—when objection that statement of claim does not state cause of action comes too late when made on appeal. Where a bond is attached to a statement of claim as an exhibit, which statement of claim expressly makes the annexed copy of the bond a part of the statement, and the defendant treats the statement of claim as setting forth a cause of action by taking issue thereon in his affidavit of merits, there being no objection nor motion to strike, an objection that,the statement of claim does not state a cause of action because the annexed instrument was not a part of it, comes too late when made on appeal.</p> <p>2. Appeal and error, § 806*—when bill of exceptions need not contain evidence of bond attached to statement of claim as exhibit and expressly referred to in claim. Where a bond was attached to a statement of claim as an exhibit and expressly referred to in the claim as a part of the statement, and the execution of such bond was admitted in the defendant’s affidavit of merits, it could not be contended on appeal that there was a failure to establish legal liability for the reason that the bill of exceptions contained no evidence, of the bond, such evidence being unnecessary under the conditions presented, and under the rules of the municipal court as to the admission of facts pleaded when not denied.</p> <p>3. Appeal and error, § 1849*—relation back of order amending original judgment. Where an original judgment of the Appellate Court was amended at the same term so as to award an additional amount to a plaintiff in accordance with the original opinion, the decree being affirmed in other respects, the amendatory order was evidently made to correct the former judgment and so as to" make it conform with the court’s opinion, and such amendatory order related back and became a part of the original judgment.</p> <p>4. Appeal and error, § 1884*—when admission in action on appeal bond of certified copies of order amending original judgment is not error. In an action on an appeal bond where it appeared that the judgment in favor of the plaintiff was affirmed, but that such judgment was amended so as to increase the amount due the plaintiff, in accordance with the original opinion, the court did not err in admitting certified copies of the amendatory order, although there were technical objections that on cross errors of the defendant in the former proceedings the decree was reversed to the extent that the trial court was directed to increase the decree against the defendant.</p> <p>5. Appeal and ebbob—when refusal of court, in action on appeal hand, to entertain motion to vacate judgment is not error. In an action on an appeal bond, the refusal of the court to entertain a motion to vacate a judgment is not error when such judgment is correct, and the court is not required to entertain a motion which it necessarily must have denied.</p>

<p>1. Insane persons, § 29*—when debt of person appointed conservator of creditor's estate is regarded as paid and amount thereof as cash in conservator’s hands. Where a debtor is appointed conservator of his creditor’s estate and has at the time of such appointment sufficient property to pay his debts, including the one to the estate, the law regards the debt to the estate as • paid and the amount thereof as cash in the hands of such conservator, even though he may subsequently become insolvent.</p> <p>2.. Insane persons, § 31*—when finding and order of probate court ordering conservator to pay money to lunatic's executrix is binding on conservator’s surety. A finding and order of the probate court ordering a .conservator to pay a certain sum of money to the executrix of a deceased lunatic, which order is not attacked, is binding upon the surety of the conservator, it being the rule that a surety is bound and concluded by a judgment against his principal which cannot be collaterally attacked except for fraud and collusion.</p>

<p>1. Appeal and erbor, § 866*—what abstract must show. On an appeal, the abstract is the pleading oí the parties and it must show sufficient of the proceedings in the trial court to support the errors assigned upon the record.</p> <p>2. Appeal and ebbob, § 887*—when recitations in abstract are too meager to present anything for review when one of errors challenges judgment. Recitations in an abstract merely stating that motions for new trial and in arrest of judgment were overruled and concluding “order, plaintiff have judgment on verdict and recover from defendant its costs and execution issue,” are too meager to present anything for review, when one of the errors challenges the judgment.</p> <p>3. Contracts, § 323*—right of person first breaching contract to sue for damages. A person who first breaches a contract cannot maintain an action for damages against the other party thereto for a failure to further proceed to carry out such contract subsequently to such breach.</p> <p>4. Sales, § 320*—when defendant in action for fuel oil sold and delivered cannot maintain set-off for damages. In an action for fuel oil sold and delivered where the defendant interposed a set-off for damages for breach of contract, and it appeared that the defendant was in default in payment for the goods received, it could not maintain its set-off for damages, as a party claiming damages for breach of contract must aver and prove that he is not in default as to the agreement which is broken.</p> <p>5. Sales, § 328*—when proper, in action for fuel oil sold and delivered, for court to direct verdict for plaintiff. In an action for fuel oil sold and delivered, a question as to the right of defendant to maintain a set-off for breach of the contract was one of law, and on deciding that the set-off could not be maintained it was proper for the court to peremptorily instruct the jury to return a verdict for the plaintiff.</p>

<p>' 1. Carriers, § 199*—what establishes prima faeie case against final carrier for damage to goods. Where property transported over the lines of several carriers is damaged en route, proof that the goods were delivered to the consignee by the final carrier in bad order establishes a prima facie case against such carrier, inasmuch as such carrier could protect itself by inspection when the goods were received, and the sources of evidence regarding where the blame rests are more accessible to the last carrier than they are to the shipper.</p> <p>2. Carriers, § 199*-—who has burden of proof in action against connecting carriers for loss of goods. Where a terminal carrier delivers a shipment of goods to a local drayman, who is the agent of the consignee, and there is a shortage in such goods when received by the consignee, it would not be incumbent on the railroad to show that the shortage occurred while the goods were in possession of the drayman, but the plaintiff consignee would have the burden of proving such fact, as the source of evidence regarding blame for the shortage rests with the drayman, and is quite as accessible to the consignee as to the railroad, if not more so.</p> <p>3. Carriers, § 5*—when transfer or drayage company is common carrier. A transfer or drayage company which undertakes, for hire or reward, to transport from place to place the goods of those who employ it, is a common carrier.</p> <p>4. Carriers, § 199a*—what evidence establishes that transfer company was terminal carrier. Where a consignment of goods handled by other carriers was delivered by a railroad to a transfer company which was a common carrier, the evidence established that such transfer company was the terminal- carrier.</p> <p>5. Carriers, § 199*—burden of proof in action against connecting carriers for loss of goods. In a suit by a consignee to recover for a shortage of goods, brought against the railroad which delivered the goods to a transfer company at the point of destination, where the plaintiff established' that the goods were shipped in good condition and that the shortage was discovered when the goods were delivered by the transfer company, the burden was upon the plaintiff to show that the shortage occurred while the goods were in the railroad’s possession, or at least to show a presumption to that effect by showing that no loss was suffered while the goods were in possession of the terminal carrier.</p> <p>6. Carriers, § 199a*—when evidence insufficient to show loss of goods did not occur while goods were in hands of transfer company. Evidence held insufficient to show that a shortage of goods did not take place while the goods were in the hands of a terminal carrier, a transfer or drayage company, there being no testimony of the draymen to the effect that nothing was taken from them while in their possession, and that they were received in the same condition as when delivered to the plaintiff consignee, which testimony would have contradicted witnesses for the railroad which was a connecting carrier.</p> <p>7. Carriers, § 199a*—when finding that loss of goods, delivered t>y railroad company to draymen, occurred while goods were in possession of former is against iveight of evidence. In an action for the loss of goods transported, while in the possession of a railroad company, which afterwards delivered such goods to draymen of the consignee, where all the witnesses for the railroad company testified that the boxes containing the goods were in good condition, and there was no evidence as to the condition of such boxes when received by the draymen, a finding that the shortage in the shipment occurred while the goods were in possession of the railroad company was against the manifest weight of the evidence.</p>

<p>1. Banks and banking—when trust company required to make good its representation that money belonged to bank. Where a trust company participated with representatives of a bank in illegally obtaining a certificate from the State auditor authorizing the bank to do business, by turning over money to the bank and taking it back immediately after the certificate was issued, it was required to make good its representation that the money belonged to the bank, and the liability of the trust company was not caused by impairment of the capital stock and surplus of the bank, but by the tort of the trust company.</p> <p>2. Banks and banking—when no fraudulent intention exists in trust company’s participation with bank in illegally obtaining certificate for bank to do business. Where a trust company participated with representatives of a bank in illegally obtaining a certificate from the State auditor for the bank to do business, by turning over money to the bank and receiving it back after the certificate was granted, but .the entire transaction was known and explained to the representatives of the auditor, there was no fraudulent intention, as the parties thought the law was complied with.</p> <p>3. Banks and banking, § 25*-—when purchasers of stock certificates are not liable as stockholders. Where persons purchased stock certificates in a State bank in due course of business without any knowledge that the capital and surplus had not been fully paid up, they were not liable as stockholders, there being no provision of the banking law nor any other statute rendering them liable.</p> <p>4. Attorney and client, § 61*—when illegal acts of attorney are not chargeable to clients. Where stockholders of a national bank authorized a person as attorney to do all necessary acts in perfecting the transfer of their stock for stock in a State bank, they did not authorize the attorney to do anything illegal, and they could not be charged with the attorney’s illegal acts.</p> <p>5. Banks and bankino—when stockholders of State bank, are not in pari delicto mth trust company. Where stockholders of a -State bank took no part in an illegal transaction by which a trust company advanced money to the bank so that it might be counted by the State auditor and a certificate to do business issued to the bank, after which the money was returned to the trust company, they were not in pari delicto with the trust company.</p> <p>6. Banks and banking, § 27*—when trust company not entitled to reimbursement by stockholders of bank. Where a trust company advanced money to a bank so that it might secure a certificate to do business, after which the money was returned to the trust company, it did a legal wrong resulting in loss to many depositors and creditors of the bank, and such trust company would not be entitled to be reimbursed by the stockholders for money which it was required to pay, as such a decree would not result in- the furtherance of justice, but justice and sound public policy should prevent a recovery so that other persons might be deterred from seeking to evade the banking laws.</p>

<p>1. Insurance, § 362*—when insurer estopped from insisting that 'burglary policy was forfeited. Where an insured is covered at one location by an open stock policy of burglary insurance, and he moves his stock of goods to a different location, notifying the company so that the policy may be amended to cover the goods at the new location, and the insurer does not treat the policy as being forfeited, but states that the new location will have to be inspected, and a loss occurs before the inspection is made, such privilege of inspection is waived and the insurer is estopped from insisting that the policy is forfeited.</p> <p>2. Insurance, § 321*—right of insurer to waive privilege of inspection of new location of goods covered by burglary policy. The right of inspection by agents of an insurer where goods covered by a policy of burglary insurance are moved to a new location is for the benefit of the insurer, so that the risk may not become greater, and such privilege may be waived at the election of the insurer.</p> <p>3. Insurance—difference between burglary policies indemnifying against loss from specified place and loss of parts or whole of changing stock, of goods. Practically considered there is no difference between a burglary insurance policy which indemnifies against loss by theft from a specified place and a policy which indemnifies against the loss by theft of parts or the whole of a changing stock of goods, as the insured pays a premium so as to suffer no loss in case his goods are stolen, and the insurer undertakes to make good if loss occurs.</p>

<p>1. Carriers, § 345*—when street ear company liable for injuries to alighting passenger. Where a woman becomes a passenger and obtains a seat in an uncrowded street car and, when approaching her destination, the car meanwhile having become overcrowded, undertakes to get off and in doing so is shoved and pushed and practically involuntarily carried along and finally, against her will, is thrust out on the street and injured, the carrier is liable.</p> <p>2. Carriers, § 290*—liability for results of overcrowding street car. The court will take judicial notice of the well-known characteristics of human nature, such as the haste, impatience and anxiety of passengers in a street car seeking to alight when they arrive at their destination, and carriers are bound to know and conduct their business with such characteristics in mind, so that they must he' held responsible for results which reasonably might be anticipated when too many passengers are accepted.</p> <p>3. Cabmebs, § 345*—when tort of passengers does not affect street' car company's liability for injuries to alighting passenger.' The fact that the tort of passengers in pushing off a crowded street car takes place concurrently with the carrier’s conduct in permitting the car to be overcrowded will not alter or lessen the carrier’s liability, when injuries result to a passenger seeking to alight.</p> <p>4. Cabbiebs, § 479*—when verdict finding street car company guilty of negligence as to alighting passenger will nod be set aside. A verdict of a jury finding a street car company guilty of negligence when a passenger attempting to alight was pushed off the car and injured because of the crowded condition of the car, will not be set aside although the plaintiff’s testimony is directly contradicted by that of employees of the street car company.</p> <p>5. Appeal and ebbob, § 1645*—when use in instruction of phrase “one credible witness" is harmless. The use of the phrase “one credible witness” in an instruction given in a personal injury case is not improper where a number of other instructions state «the law accurately as to credibility of witnesses and the effect of the testimony of a number of credible witnesses.</p>

<p>1. Partition, § 112*—among what parties costs apportioned. Section 40 of the Partition Act (J. & A. 1f 8353) authorizing the apportionment of costs “among the parties in interest in the suit,” refers to the parties in interest referred to in sections 5 and 6 CITIT 8318, 8319), which-sections include as necessary parties to the petition only such persons as have a common interest in the property sought to be partitioned.</p> <p>2. Partition, § 35*—mortgagees as not necessary parties to sue. Mortgagees are not necessary parties to a partition suit within the meaning of sections 5 and 6 of the Partition Act (J. & A. 8318, 8319).</p> <p>3. Partition, § 35*—wh&t does not make mortgagees necessary parties to suit. _ In partition proceedings, if it is found necessary to sell the land, the court may ascertain the amount due on the mortgage debt and order it paid out of the proceeds of the sale, but such fact does not make the mortgagees necessary parties to the partition suit as they must be to authorize charging them under section 40 of the Partition Act (J. & A. fi 8353) with any portion of the complainant’s solicitors’ fees.</p> <p>4. Partition, § 112*—how statute authorizing apportionment of costs must 6e construed. Section 40 of the Partition Act (J. & A. If 8353), authorizing the apportionment of costs among the parties in interest in the suit, is penal in character and must be strictly construed.</p> <p>5. Partition, § 112*—when deduction of costs from proceeds of sale is improper. Where a decree in partition proceedings gave priority to mortgage liens, but the costs were deducted from the proceeds of the sale, the effect was to make the mortgagee pay all such costs, and the costs being chargeable to parties in interest, such costs could not be taken out of the fund to which the mortgagee had by the decree a superior lien.</p> <p>6. Partition, § 112*—when it is error to require mortgagee to gay costs. Section 40 of the Partition Act (J. & A. 8353) requires costs to be apportioned “so that each party shall pay his or her equitable portion thereof,” but it is not equitable and it is error to require a mortgagee to pay costs to settle a dispute between other parties in which it has no interest, or to pay costs which were advanced by the petitioner solely for his own benefit or that of his tenants in common.</p>

<p>Error to the Criminal Court of Cook county; the Hon.. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

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

<p>1. Contempt, § 51*—what is nature of proceeding. A proceeding for contempt for violating an in junctional order is a civil or remedial proceeding conforming in its pleadings, character and quantity of proof required, and in its course through the Appellate tribunals, to the rules and practice applicable to other chancery proceedings.</p> <p>2. Appeal and ebror, § 1396*—when chancellor’s findings of fact will not be disturbed. In a chancery proceeding where the chancellor hears the witnesses testify in open court, his findings of fact, when the testimony is conflicting, are entitled to great weight and will not be disturbed on appeal unless manifestly against the weight of the evidence.</p> <p>3. Contempt, § 69*—when evidence sustains finding of violation of injunction against use of trade lists. Evidence held to sustain a finding of a chancellor of the use of trade lists, trade information and other memoranda in the use of business in violation of an injunction, rendering the violators subject to contempt of court.</p> <p>4. Contempt, § 37*—what constitutes violation of injunction against using or giving away certain trade information. Where an injunction prohibited certain persons from using or giving to any person or corporation certain trade information prepared, compiled or assembled between certain dates, the copying of such information after thq date last specified, and its use thereafter, was a violation of the injunction, as the information was acquired prior to such date.</p> <p>5. Contempt, § 37*—violation of spirit of injunction as breach of court’s mandate. The violation of the spirit of an injunction, even though its strict letter may not have been disregarded, is a breach of the court’s mandate.</p>

<p>1. Appeal and error, § 1105*—when joint appeal is properly dismissed. Where five persons were adjudged guilty of contempt of court in violating an injunction, a joint appeal hy such persons was properly dismissed, as the right of appeal is a statutory right and can only he availed of when allowed hy the court, and must then he in conformity with the prayer for appeal and the order of allowance.</p> <p>2. Appeal and error, § 683*—necessity that appellee docket and secure dismissal of separate appeals after dismissal of joint appeal. Under sections 100 and 101 of the Practice Act (J. & A. ff 8637, 8638), where separate appeals from an order adjudging a number of persons guilty of contempt in violating an injunction were duly perfected in the trial court, and a joint appeal by all such persons was dismissed as a nullity, such dismissal was ineffective to terminate the separate appeals, and since none of such separate appeals was docketed in the Appellate Court, it was essential that the appellee docket said appeals in the Appellate Court and secure their dismissal.</p> <p>3. Appeal and error, § 1105*—dismissal of appeals for failure to docket. Where separate appeals from an order adjudging a number of persons guilty of contempt in violating an injunction were duly perfected in the ,trial court, but were not docketed in the Appellate Court, such appeals would be dismissed on motion of the appellee, with damages, under sections 100 and 101 of the Practice Act (J. & A. Iff 8637, 8638).</p> <p>4. Costs, § 83*—award of damages on dismissal of appeal. Under Practice Act, secs. 100, 101 (J. & A. ff 8637, 8638), as to the dismissal of appeals, the awarding of damages is mandatory, and the discretion of the court is limited to the amount of damages which shall be not less than $50 and not more than $250.</p> <p>5. Appeal and error, § 897*—when transcript does not comply with statute. Under section 100 of the Practice Act (J. & A. f 8637), a transcript, in an appeal from an order adjudging a person guilty of contempt in violating an injunction, which transcript contains the original hill of complaint, the summons, the petition for writ of sequestration and attachment for contempt, with affidavits, the order to show cause, the answer of respondents thereto, the judgment order, the appeal bond and affidavits of sureties, the order approving the bond, the prmcipe and certificate of the clerk of court, does not comply with the statute.</p>

<p>1. Mechanics’ liens, § 1*—statutory nature of right to enforce lien. The right to enforce a mechanic’s lien is created hy statute, and must be shown to come strictly within the terms of the statute.</p> <p>2. Mechanics’ liens, § 191 *-^when petition or bill by claimant may be amended. A petition or bill filed by a lien claimant in bringing suit against a purchaser of the property, which suit is brought within 4 months after the completion of the work or final delivery of material, may, by the express provision of the statute (Mechanics’ Liens Law, secs. 7, 11, 12, J. & A. Iff 7145, 7149, 7150), be subsequently amended, either before or after the expiration of the 4-month period.</p>

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

<p>1. Mobtoaoes, g 22*—conveyance as security as conveyance in nature of mortgage. A conveyance made as security is properly held to be a conveyance in the nature of a mortgage (Rev. St. ch. 95, sec.' 12, J. & A. If 7587), and it is not necessary that the consideration move directly from the grantor to the grantee.</p> <p>2. Damages, § 66*—measure of damages when property held as security is conveyed in violation of agreement. Where property held as security is conveyed by a defendant in violation of her agreement, she is liable for the full value of the property as of the date of the sale unless such property is sold for more than it is worth, in which case the defendant is liable according to the amount received.</p> <p>3. Mobtgagks, § 34*—what relief may be granted on bill praying that absolute deed be decreed a mortgage, and for general relief. Where a bill prays that an absolute deed of conveyance be decreed a mortgage, for an accounting, and that property received by the defendant be conveyed to complainant, it appearing that such defendant conveyed property held as security in violation of her agreement, and the bill also contains a prayer for general relief, the court may grant such relief under the general prayer as the allegations and proof demand, even though the prayer for specific relief is denied.</p> <p>4. Intebest, § 69*—when allowed in equity. In equity, interest is allowed because of equitable considerations and is given or withheld as under all the circumstances of the case seems equitable and just</p> <p>5. Account, g 54*—when defendant not chargeable with interest prior to filing of bill. Where property was conveyed to a defendant as security and held by her for 5 years, without any demand for reconveyance, and the defendant sold such property in violation of her agreement, resulting in a suit for an accounting which was brought 2 years later, it would not be equitable or just to charge such defendant with interest prior to the filing of the bill, which might be considered a demand.</p>

<p>1. Sales, § 19*—when order not binding contract until buyer approved sample. A written instrument consisting of an order for certain dresses stating the price, but describing the dresses by lot number with colors “to follow,” held not a binding contract until the buyer had approved a sample made by the seller from a sample furnished by the buyer, especially as a letter sent by the buyer 3 days later advised as to the sending of the samples and confirmed the theory that the first instrument was a mere order which would change into a binding contract when the samples made by the seller were approved by the buyer.</p> <p>2. Sales, § 376*—when allowance of damages for breach of order as a xohole is error. Under a contract for the sale of four different lots of dresses, where the seller was to submit samples from a sample furnished by the buyer, for his approval, the seller was liable for damages for failure to perform as to two lots of dresses, concerning which there was a complete contract, but there being no contract as to the other two lots, there could be no breach or liability foi* the failure to perform, and the allowance of damages for breach of the order as to all four different lots of dresses was error.</p> <p>3. Sales, § 386*—when appeal from judgment in action by buyer presents question of fact. In an action for breach of a contract to manufacture and deliver a certain quantity of dresses, where the facts proved did not show the existence of a contract for the sale of the quantity of dresses as claimed by the plaintiff, the court on appeal was entitled to determine from the record the extent of the breach of contract, and the appeal did not present a mere question of law but one of fact.</p>

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

<p>1. Municipal corporations, § 106*—when purpose of ordinance cannot be shown by parol. Parol evidence is not admissible to show that a vacation ordinance was passed for private benefits where such parol evidence is dehors the provisions of such ordinance.</p> <p>2. Dedication, § 2*—who may make. As a general rule only the owner of the fee is able to make a valid dedication, but'where the owner of the fee objects to a dedication and has by ordinance provided that its lessee shall dedicate, and the lessee has done all in its power to accomplish the owner’s requirement, it is inequitable and unreasonable to claim a failure to perform.</p> <p>3. Estoppel, § 94*—when applies to municipal corporations. The doctrine of estoppel applies- to municipal corporations.</p> <p>4. Dedication, § 37*—when city estopped to object. Where an owner of leasehold interests was induced to make great and valuable improvements by relying upon the acquiescence and even the desire of a city, the owner of the fee, as to the dedication of a portion of its leasehold estate for alley purposes, the city would be estopped to urge that such owner could not dedicate the property.</p> <p>5. Pleading, § 431*—what not a variance. Where an owner of a leasehold interest sought the recovery of money paid to a city to become a fund for the payment of damages which might be claimed because of the vacation of an alley, and the proof showed that the' money was paid into an account for corporate purposes, there was no variance, as the plaintiff was not bound by the acts of the city with respect to the money.</p> <p>6. Limitation oe actions, § 24*—when cause of action matures. In an action to recover money paid to a city to become a fund for the payment of damages which might be claimed because of the vacation of an alley, the plaintiff’s right of action did not mature until 5 years after the money was paid over to the city.</p>

<p>1. Injunction, § 375*—when motion to dissolve essential to review. A judgment finding a person guilty of contempt in violating an injunction will not be reversed, although the appellant claims that he was not served with process, where the record does not disclose a motion to dissolve the injunction made on a limited appearance, as it is not the duty of the Appellate Court to search for errors or enter upon an independent investigation in order to find material on which to base a judgment of reversal.</p> <p>2. Injunction, § 254*—power to punish violation of temporary injunction issued without notice. A court has jurisdiction to punish a party for contempt for violation of a temporary injunction issued without notice and without the respondent having been served with a summons, where the respondent has been served with the injunction writ.</p> <p>3. Injunction, § 39*—power to enjoin nuisance. Courts of equity have jurisdiction of proceedings to enjoin the maintenance of a nuisance.</p> <p>4. Intoxicating liquors, § 167*—right to enjoin keeping of place for illegal sale. Under section 38 of chapter 43, Hurd’s Rev. St. (J. & A. 1i 4650), the keeping of a place where intoxicating liquors are sold in violation of the statute may be enjoined as a nuisance.</p> <p>5. Injunction, § 269*—what is effect of motion to dissolve. A motion to dissolve a temporary injunction is in the nature of a demurrer to the bill, and a defendant making such motion thereby enters his appearance and obviates the necessity of service of summons.</p> <p>6. Intoxicating liquors, § 167*—when owner of premises may he enjoined. In contempt proceedings for violation of an injunction prohibiting the keeping of a place where intoxicating liquors are sold, a contention that the defendant has rented the building and has no power to abate the nuisance cannot be sustained when the evidence shows that not only the tenant sold liquor with the knowledge of the defendant, but also that defendant sold liquor in the building.</p> <p>7. Injunction, § 256*—when defendant cannot complain that injunction is too hroad. In contempt proceedings for the violation of an injunction prohibiting the sale of liquor in a building, the defendant cannot contend that the injunction is too broad in that the giving away of liquor is also enjoined, it appearing that the defendant was convicted for selling liquors and not for giving them away.</p> <p>8. Injunction, § 256*—when defendant cannot complain of want of hearing on merits. In contempt proceedings for the violation of ap injunction prohibiting the sale of liquor in a building, the defendant cannot contend that he has had no opportunity for a hearing on the merits as to the issuance of the injunction, as an answer might have been filed and a hearing had on the question of dissolution of the injunction, it being the rule that so long as an injunction is in force the court has jurisdiction of the subject-matter, even though the defendant may not have been served with process.</p> <p>9. Injunction, § 253*—nature of proceeding for violation. A contempt proceeding for the violation of an injunction is neither a criminal nor quasi criminal proceeding, and the rules of evidence are not the same as in a criminal proceeding.</p> <p>10. Injunction, § 260*—when punishment for violation not excessive. Punishment imposed for contempt in violating an injunction prohibiting the sale of intoxicating liquors at a certain place cannot be contended as being unusual and excessive, although in excess of the fine and imprisonment which might have been imposed in a criminal proceeding, on indictment. ,</p>

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

<p>Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Insurance, § 226*—when concealment of other insurance no defense. In an action on an insurance policy covering loss by fire, theft or collision, where the insurer claimed that the insured concealed the existence of other insurance, and the evidence showed that theft insurance was applied for, the fact that the insurer’s agent filled in the application so as to request insurance for theft, fire, etc., would not bar recovery, even though the insured had insurance against loss by fire in another company.</p> <p>2. Insurance, § 226*—when recovery not tarred ty existence of other insurance. Where a person insured against loss by fire in one company applied for insurance against loss by theft in another company and received a policy with stipulations against the concealment of material facts “with intent to deceive,” the policy was not void when the evidence disclosed that the insured merely requested theft insurance and the agent of the insurer filled in the application to cover loss by fire also, there being nothing in the evidence to show that the applicant gave other than true answers at the time she procured her policy, and the insured not being advised that the application signed by her requested fire protection.</p>

<p>1. Injunction, § 385*—review of order granting temporary injunction. The granting of a temporary injunction by either the court or by a judge in vacation is a matter of sound discretion, and such an. order can only be reviewed when an appeal is prosecuted as provided by the statute.</p> <p>2. Injunction, § 269*—what is effect of motion to dissolve. A motion to dissolve an injunction for want of equity, apparent on the face of the bill, has the same effect as a demurrer.</p> <p>3. Injunction, § 269*—when issue on merits presented, by motion* to dissolve. Where a defendant appears for the purpose of dissolving a temporary injunction, and states that his appearance is limited, for the purpose of the motion only, but the motion presents the question whether the bill taken as true presents a cause of action, an issue on the merits is presented, and the defense can only be sustained by an exercise of jurisdiction, wherefore the appearance is general.</p>

<p>Appeal from the Circuit Court of Massac county; the Hon. William N. Butleb, Judge, presiding. Heard in this court at the October term, 1919.</p>

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

<p>Appeal from the County Court of Johnson county; the Hon. John O. Cowan, Judge, presiding. Heard in this' court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Edwards county; the Hon. Charles H. Milleb, Judge, presiding. Heard in this court at the October term, 1919.</p>

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

<p>Appeal from the Circuit Court of Jefferson county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Brokers, § 69*—when •person procuring mining rights not entitled to lien for commission. In an action to recover commissions for procuring mining rights, where it appeared that the plaintiff procured options on land for the defendant, the right of action of the plaintiff was at law for a money judgment for his services or commissions, and such plaintiff could not claim a vendor’s lien even if he owned options on the lands involved in his own name.</p> <p>2. Contracts, § 47*—what is an option. An option is a contract by which an owner of land' agrees with another person that he shall have the right to buy his property at a fixed price within a certain time.</p> <p>3. Brokers, § 70*—form of action for recovery of commission. An action to recover commissions for procuring mining rights should be brought at law, there being no showing why such action, both as to manner and final relief, would not be as efficient and adequate as an action at equity.</p> <p>4. Brokers, § 69*—when decree for sale of property erroneous in action for commission. In an action to recover commissions for procuring mining rights, a decree entitling the plaintiff' to a lien for the amount of his judgment and decreeing a sale of the mining property procured if the judgment was not paid within 30 days, was erroneous, there being no right to a lien.</p>

<p>1'. Abatement and revival—Act of Edw. III supplanted by Survival Act. Section 123 of the Administration Act (J. & A. If 172), as to the survival of actions, has entirely supplanted Act 4, Edw. III, ch. 7, even though such latter act may have" been in force in this State at one time.</p> <p>2. Abatement and revival—when cause of action is not for injury to personalty within Survival Act. An action against an insurance company for negligence of such company’s agent in failing to forward an application for insurance and the firsí premium payment is not an action for injury to personal property, and does not survive under section 123 of the Administration Act (J. & A. If 172).</p> <p>3. Abatement and revival—when cause of action is not for personal injuries within Survival Act. An action against an insurance company for negligence of its agent in failing to forward an application for insurance and a first premium payment does not survive under section 123 of the Administration Act (J. & A. If 172), relating to the survival of actions for an injury to the person.</p> <p>4. Abatement and revival—when cause of action does not survive. Where a right of action is so entirely personal that the party in whom it exists cannot by contract place it beyond his control, it will not survive, and as a general rule assignability and survivability of causes of action are controvertible terms.</p> <p>5. Abatement and revival—when cause of action does not survive. An action against an insurance company for negligence of its agent in failing to forward an application for insurance together with the first premium payment is not assignable and consequently does not survive'.</p> <p>6. Abatement and revival, § 82*—necessity for pleading grounds for abatement. An objection which goes merely in abatement of an action as distinguished from an objection to jurisdiction of the subject-matter must be pleaded to be available.</p> <p>7. Abatement and revival, § 87*—waiver of matter in abatement by failure to plead. In an action against an insurance company for negligence of its agent in failing to forward an application for insurance, where the death of the applicant appears upon the face of the declaration, and the defendant files a general demurrer which is overruled and does not by plea or otherwise set up the fact of death in abatement, but only files a plea of the general issue in bar, if the death is considered as matter in abatement it is waived.</p> <p>8. Abatement and revival—when declaration on nonsurviving action fails to state a cause of action In an action against an insurance company for negligence of its agent in failing to forward an application for insurance, where the death of the applicant appears upon the face of the declaration, such declaration fails to state a cause of action and is insufficient, wherefore it is error to overrule a motion in arrest of judgment.</p> <p>9. Action—when accrues. A cause of action accrues when facts exist which authorize one party to maintain an action against another.</p>

<p>Appeal from the City Court of Granite City; the Hon. M. R. Stjllivan, Judge, presiding. Heard in this court at the October term, 1919.</p>