Volume 218 — Illinois Appellate Court Reports

<p>1. Corporations, § 687*—what is extent of power of foreign corporation to loan money. There is nothing in the Illinois statutes which inhibits a foreign corporation having power under its charter to loan money from .the business of loaning money in Illinois, where it exercises no greater or different powers with Illinois corporations of like character and subject to the same liabilities, restrictions and duties as such corporations.</p> <p>2. Corporations, § 344*—when parties to contract cannot assert that it is ultra vires. A contract which is ultra vires a corporation as not being within the powers conferred upon the corporation by the legislature, or within the object of its creation, is void, but where a contract is within its powers to make and within the scope of its franchise, neither party who has had the benefit of the contract can set up as a defense thereto that legal formalities were not complied with or that the power was improperly exercised.</p> <p>3. Corporations, § 689*—when loan cannot "be objected to as ultra vires. A loan lawfully made on real estate by foreign corporation with charter authority to make loans and doing business in Illinois under a certificate from the Secretary of State is not void as being ultra vires and the corporation is entitled to the lien created by its trust deed upon the debtor’s realty.</p> <p>4. Appeal and error, § 488*—when objections to findings are not available on appeal. Where no objections were filed to the master’s finding as to the interest in the premises of one of the parties to a proceeding to establish a lien upon property by virtue of a trust deed, such interest cannot be questioned on appeal.</p>

<p>1. Municipal court of Chicago, § 10*—what is nature of supplemental proceedings. The supplementary proceedings authorized by section 64 of the Municipal Act (J. & A. jf 338Í) are in the nature of a substitute for a creditor’s bill.</p> <p>2. ^Muntcipal court of Chicago, § 10*—how statute as to supplemental proceedings is construed. Section 64 of the Municipal Court Act (J. & A. 1f 3381), providing for supplementary proceedings is in derogation of the common law and is to be strictly construed.</p> <p>3. Municipal court of Chicago, § 10*—what money may be reached by supplemental proceedings. By analogy to the rule in garnishment proceedings, money belonging to one of several joint debtors cannot be,reached by a proceeding under Municipal Court Act, sec. 64 (J. & A. jf 3381), or be required to be paid over in satisfaction of a judgment against several joint debtors.</p> <p>. 4. Municipal court of Chicago, § 12*—what is effect of process in supplemental proceedings. The service of the summons in a supplementary proceeding under Municipal Court Act, sec. 64 (J. & A. If 3381), does not create a lien on property or money in his possession,-in the absence of any-order requiring him to retain the same pending disposition by the court.'</p> <p>5. Municipal court of Chicago, § 12*—what examination is contemplated in supplemental proceedings. The language being in the present tense of Municipal Court Act, sec. 64 (J. & A. If 3381), seems to contemplate an examination as to the money and property the third person has in his possession at the time of the examination.</p>

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

<p>1. Municipal court of Chicago, § 13*—when facts in statement of claim are admitted. Under the rules of the municipal court of Chicago, facts alleged in plaintiff’s verified statement of claim which are not denied in defendant’s affidavit of merits, stand admitted.</p> <p>2. Trial, § 163*—when question of law arises. Where in an action to recover on a bond given to secure the performance of a contract brought by the obligee for the use of a firm which sold and supplied to the contractor materials used for the performance of the contract, there is no contest as to the facts but the defense rests upon the contention that under the bond there was no liability to the firm and that such firm, not being a party to the bond, has no right to maintain the action, the question involved is not one of fact but one of law.</p> <p>3. Municipal corporations, § 400*—when bond of contractor is for benefit of subcontractor. A bond given to a municipal corporation to secure the performance of a contract with it which prqvides that the obligor liable upon a breach of the covenant in the contract that the contractor shall be responsible for all liabilities incurred in the work for labor and materials and shall promptly pay all persons supplying it labor and materials for the work, is not for the protection of the municipal corporation only, but is for the protection and benefit of subcontractors, even though the statute does not require the municipality to take such a bond, and the subcontractors may sue on the bond without the consent of such municipal corporation.</p> <p>4. Municipal corporations, § 400*—when municipality may require bond from contractor. Though a municipal corporation is not required by statute to take a bond for the performance of a contract which secures the rights of persons furnishing labor and material under the contract, it may, in its discretion^ require such a provision, and its act in so doing is not ultra vires'.</p> <p>5. Municipal corporations, § 400*—who may enforce obligations of contractor’s bond. Where the condition in a bond given to secure the performance of a contract with a municipal corporation is that the principal obligor shall make prompt payment to all persons furnishing labor or materials for the prosecution of the work provided for in the contract, a subcontractor’s right of action upon such bond is not affected by the fact that the municipal corporation, is not liable to him, as the condition of the bond is in effect and by interpretation an undertaking to pay the parties furnishing labor and materials, and by operation of law is for their benefit and they may sue to enforce it.</p> <p>6. Municipal corporations, § 400*—when bond of contractor is supported by sufficient consideration. A bond to secure the performance of a contract with a municipal corporation which contains two promises—one to the corporation that the contractor shall perform the work as agreed, the other to laborers and materialmen to pay them for labor and material furnished the contractor under the contract—held to be supported by sufficient consideration as to both conditions.</p> <p>7. Municipal corporations, § 192*—what is effect of appropriation for school building. By appropriating money for the erection of a school building, the City Council of Chicago sufficiently concurs in the action of the Board of Education of Chicago in erecting such building.</p> <p>8. Municipal corporations, § 400*—what defenses are available-in action on bond. In an action by a subcontractor to recover on a bond given to secure the performance of a contract with the Board of Education of the City of Chicago for the erection of a school building, defendant cannot set up the defense in contradiction of the recitations of its contract of suretyship in suit, that the action of the Board of Education in erecting such building was not concurred in by the City Council of Chicago.</p> <p>9. Municipal court of Chicago, § 24*—what matters may be reviewed on appeal. One cannot set up, on an appeal from a judgment of the municipal court of Chicago, a defense not raised in his affidavit of defense.</p>

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

<p>1. Attorney and client, § 81*—what constitutes negligence. It is negligent for an attorney-at-law to take, in an action which he is prosecuting, a verbal agreement from an admittedly unreliable practitioner.</p> <p>2. Attorney and client, § 127*—when compensation allowed attorney ■ is excessive. In an action by attorneys-at-law to recover for legal services rendered in regard to the collection of notes aggregating $145.47, of which plaintiffs secured a settlement for $60, evidence examined and held to show that a verdict and judgment for plaintiffs for $875 were contrary to the greater weight of the evidence.</p> <p>3. Instructions, § 81*—when instruction is erroneous. An instruction which singles out evidence favorable to one party and ignores the evidence most favorable to the other is vicious, especially where it fails to state that the evidence singled out may be considered in connection with all of the other facts and circumstances in evidence, or to indicate that there is any countervailing evidence on the subject.</p> <p>4. Instructions, § 131*—when instruction is erroneous as ignoring fact. In an action by attorneys-at-law to recover for professional services, it is error to instruct the jury that they may disregard plaintiffs’ act in sending defendant a statement of their charges and that plaintiffs were not bound by such act, without including in such instruction any reference to plaintiffs’ tetter accompanying the statement, as the effect of the account and the letter was a question of law for the court.</p> <p>5. Attorney and client, § 134*—what evidence is admissible in action for compensation. In an action by attorneys-at-law to recover fees for services rendered, the letter accompanying plaintiffs’ statement rendered defendant for a smaller amount before bringing such action is material evidence not to be withheld from the jury’s consideration.</p>

<p>1. Newspapers, § 6*—what is extent of liability of newspaper. Newspapers are responsible to the law for any wrong committed by them and are subject to regulation by law.</p> <p>2. Equity, § 1*—what is effect of maxim allowing remedy far wrong. The maxim that “where there is a wrong, there is a remedy," is not controlled in its application by the novelty of the question involved.</p> <p>3. Damages, § 96*—what is essential to award of punitive damages. There must be a finding of actual damage and an assessment therefor before there can be an assessment of punitive damages; the latter are assessable only where the former are recoverable.</p> <p>4. Newspapers, § 6*—what are duties and powers of newspapers. A newspaper, in the dissemination of matters of public interest, has a right to abandon any department it may have established or to add new ones or to change its policy, political or otherwise, at its pleasure and as to it may seem best for either its' own or the public weal.</p> <p>5. Newspapers, § 6*—when newspaper may refrain from publishing article. A newspaper is free to refrain from publishing such matter as it may determine to be without news value and to publish such matters as it regards as having news value, as long as it does not publish libelous or scandalous matter or matter forbidden by law.</p> <p>6. Newspapers, § 6*—when newspaper is not liable for failure to publish news. A newspaper owes to a candidate for political office no duty to publish the fact of his candidacy, and the fact that it fails to mention his name although it gives the names of the other candidates for such office does not subject it to a suit for damages in any form of action.</p> <p>7. Damages, § 154*—what must be pleaded to recover damages.. There cannot be a recovery in any form of action on the case unless damage is clearly inferable from the grievance alleged.</p>

<p>-1. Roads and bridges, § 231*—what care must be exercised when driving on sidewalk. Pedestrians have a right of way upon a sidewalk, and one who drives a vehicle over such sidewalk is obligated by law to do so in a careful way so as to avoid injuring pedestrians lawfully using the sidewalk.</p> <p>2. Roads and bridges, § 231*—what constitutes negligence in driving across sidewalk. That one backing his automobile from a private roadway across a sidewalk at an excessive speed blew his horn as a signal and did not know that a pedestrian using the sidewalk was deaf and had somewhat impaired .vision does not relieve him from liability for injury to such pedestrian.</p> <p>3. Municipal corporations, § 1061*—right to assume safety of sidewalk. A pedestrian on a sidewalk has the right to assume that the sidewalk is safe from the danger of automobiles passing across it and that it is as safe in this regard for a pedestrian having impaired sight and hearing as for one having unimpaired faculties.</p> <p>4. Municipal corporations, § 1098*—when negligence of person driving automobile across sidewalk. In an action by one to recover for injuries received through being struck by defendant’s automobile as defendant was backing it across the sidewalk, defendant’s admission that he did not know of the accident until after it had happened is cogent evidence that he was operating the automobile in a negligent manner.</p> <p>5. Municipal corporations, § 1060*—right of pedestrian to use sidewalk. A pedestrian using a public sidewalk at a point where it is intersected by a private driveway is not a trespasser.</p>

<p>1. Appeal and error, § 1733*—what questions cannot be considered on subsequent appeal. Questions which were decided adversely to one by the decision on a former appeal cannot be reopened on the second appeal, as, on the second appeal matters decided on the former appeal bind both the parties and the appellate tribunal as far as concerns the particular case, and the operation- of this rule is not affected by such facts as are presented in the appellate tribunal on the second appeal for the first time.</p> <p>2. Appeal and ebrob, § 1734*—when question may be considered on subsequent appeal. On a second appeal contentions which were not involved on the former appeal may be passed upon.</p> <p>3. Insurance, §' 350*—when payment of premiums may be waived. The provision that a policy of life insurance will become void for nonpayment of any premium is inserted for the benefit of the insurer and the policy does not ipso facto become void upon such nonpayment, but the insurer may, at his option, waive such provision.</p> <p>4. Insurance, § 350*—what constitutes waiver of forfeiture for nonpayment of premiums. If an insurer, by any act, statement or course of conduct towards the insured, recognizes his policy as existing and valid notwithstanding his failure to pay the premium when due, and gives him further time or urges him to pay, it will be held to have waived its right to forfeit the policy for nonpayment of the premium.</p> <p>5. Insurance, § 350*—necessity of clear intention to enforce forfeiture. Unless the circumstances show a clear intention of the insurer to claim a forfeiture of the policy for nonpayment of the premium, the clause providing therefor will not be enforced.</p> <p>6. Insurance, § 350*—when evidence shows waiver of forfeiture for nonpayment of premiums. In an action to recover on a policy of life insurance in which defendant contends that the policy was void for failure of the insured to pay the premium when due, the fact that the note given by the insured for the premium was not canceled and sent to defendant’s home office, as was its custom in case a policy lapsed; that the policy was carried on the insurer’s records as live; that the insurer repeatedly made unconditional demands on the insured for payment of the note with interest (though one demand requested also a health certificate) establishes that there was no intention on the insurer’s part to claim a forfeiture and establishes a waiver of the forfeiture.</p> <p>7. Waiver, § 1*—when waivef is equivalent to estoppel. Where all of the elements of an estoppel are present in a waiver, the terms may be used interchangeably.</p> <p>8. Insurance, § 321*-—when waiver is distinguished from estoppel. There may be a waiver of a condition in an insurance policy which waiver does not contain all the elements of an estoppel.</p> <p>9. Estoppel, § 43*—what is essential to constitute estoppel. To constitute the course of one an estoppel, it is essential that such course shall have been relied upon by another and that the latter shall have been induced by that course to act or refrain from acting so that he will be substantially injured if the former shall be allowed to repudiate his course.</p> <p>10. Insurance, § 321*—what are distinctions between estoppel and waiver. A waiver may depend upon what one himself intends to do, without regard to its effect upon the one claiming the waiver, while an estoppel necessarily depends upon what he causes the one claiming the estoppel to do or forego, in reliance upon his course.</p> <p>11. Waiver, § 1*—what is effect of waiver. A waiver established by virtue of what one himself intends to do, without regard to the effect which his course has upon the one seeking to establish the waiver, is binding notwithstanding the elements of an estoppel are not shown.</p> <p>12. Insurance, § 350*—what waiver of nonpayment of premiums is founded on. An implied waiver by the insurer of the exercise of the right to forfeit the policy for failure to pay a premium when due through his retention of and attempts to collect the note given for the premium is founded upon the doctrine, not that the insurer misled the insured to believe that his policy was in force, but that the insurer will not be heard to say that the policy was in force for the purpose of collecting the premium for a given period, and at the same time to say that it was invalid for the purpose of paying a loss incurred during such period.</p> <p>13. Insurance, § 321*—when insurer may not rely on forfeiture. While an insurer is not required to do affirmatively some act to accomplish a forfeiture where it has the right to a forfeiture, it will not be permitted, on the other hand, to do an act entirely inconsistent with a forfeiture and, at the same time, claim the forfeiture.</p> <p>14. Insurance, § 350*—what is effect of waiver of nonpayment of premiums. Where an insurer has waived the forfeiture of a policy for nonpayment of a premium and such is the status of the parties when the insured dies, the insurer’s liability becomes fixed without regard to any tender to it of the amount of the premium, ■ though such amount should be deducted from the amount called for by the policy.</p> <p>15. Insurance, § 329*—when insurer is bound by acts of agent. An insurance company is bound by the acts of its agent, if they are within the powers he is held out to the public as possessing.</p> <p>16. Insurance, § 350*—when insurer is bound by cashier’s acts as to waiving forfeiture. Where the evidence shows that the cashier in one of the offices of an insurance company acted within his authority in seeking to collect from the insured the payment of his note given for the premium on his policy, the fact that the cashier’s acts amounted to a waiver of the company’s right to forfeit the policy for nonpayment of the premium has no effect on the question of his authority to do the things he did.</p> <p>17. Insurance, § 323*—when act is within apparent scope of agent’s powers. In the absence of evidence to the contrary, the act of the cashier of one of the regular agency offices of an insurance company in demanding payment of a note given for a premium on a policy issued by the company must be held to be within the apparent scope of his authority.</p> <p>18. Appear and error, § 1810*—when Appellate Court may enter-final judgment. On appeal by plaintiff from a judgment for defendant in an action to recover on a policy of life insurance, where the facts are not involved and there are no conflicting inferences to be drawn from them, and it is held that the denial of plaintiff's motion to direct a verdict in his favor was error, judgment for plaintiff may properly be entered in the Appellate Court.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. . Heard in the Branch Appellate Court at the March term, 1919.</p>

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

<p>Landlord and tenant, § 274*—when tenant who covenants to pay taxes need not pay income tax. Under a covenant in a lease, executed at the time a federal income tax was in force, which provides that the lessee is to pay, in addition to the rent “income tax (should there ever be any levied), * * * which may be levied, charged or imposed upon said premises,” and requires the lessee to pay all taxes and assessments before any application for judgment is made in any court to collect the same, and provides also that the landlord may pay all taxes and assessments “charged upon the demised premises,” which shall be so much additional rent, the lessee cannot be required to reimburse the landlord for income tax paid by the landlord on the rental derived from the premises, where the federal act under which the tax was imposed does not make it a charge against the premises but a personal liability against the person receiving the income, but such provision in the lease would be effective against the lessee were the income tax made by the act a charge upon the premises.</p>

<p>1. Libel and slander, § 56*—what comments are permitted. The rule that the defendant in a suit for libel may attempt to prove that the words charged were fair comment and did not in and of themselves constitute libel is not to be construed as permitting defendant to set up as a defense the alleged comment and criticism where they are based upon that which is untrue.</p> <p>2. Libel and slander, § 56*—what is extent of constitutional privilege of free speech. The constitutional privilege of free speech should not be construed as allowing the press, under the guise of fair comment, unjustly to assail the integrity of the bench.</p> <p>3. Libel and slander, § 64*—what is effect of truth of statement. Although the publication of the truth, without malice, carries with it immunity from prosecution, the law entails liability for the publication of that which is false.</p> <p>4. Libel and slander, § 101*—when amendment does not state new cause of action. In a suit for libel, an amendment adding to the words charged in the declaration is not objectionable as stating a new causg of action when the text of the words charged still conform, after such amendment, to the article as published; such count of the amended declaration is still based upon the same" article as the amended count; the article as stated in the amendment was published by the same defendant about the same plaintiff, at the same time and in the same newspaper; an analysis of the added words discloses no new and different libelous imputations; judgment on the original count would have been res adjudieata in a suit based upon the amended count.</p> <p>5. Libel and slandeb, § 56*—what are statements of fact raither than comment. In a suit for libel, dogmatic statements that a judge is unfit made in a newspaper article which does not contain the trial record of such judge will be held, as a matter of law, to be statements of fact, even though some of such words, technically considered, are in the nature of comment upon what is implied in other words in the same publication in which the judge’s record is set forth, and though the facts and such comment are so intermingled as that it is difficult to disassociate one from the other, where the impression produced upon the mind of the average reader is that the statements are statements of fact.</p> <p>6. Libel and slander, § 56*—when court may determine what are statements of fact. It is for the court and not for the jury to decide whether dogmatic statements made in a newspaper article that a judge is unfit, in which article there is not contained any statement of the judge’s record, are statements of fact or are comments upon his record.</p> <p>7. Libel and slander, § 56*—what statements are actionable. A dogmatic statement in a newspaper article that a judge is unfit is, unless proven to be true, actionable.</p> <p>8. Libel and slander, § 140*—when evidence is inadmissible. In a suit for libel to recover damages for the statement made in defendant’s newspaper that plaintiff, a judge; was unfit, it is not error to refuse in evidence a document, which defendant’s reporter testified he had received from an Assistant’s State’s Attorney and had checked with the records before the publication, which document purports to be a list of all the six cases appearing on plaintiff’s calendar, during a certain period when he was sitting in the criminal court, together with notations showing their final disposition by him, as such document was in the nature of hearsay, did not tend to prove justification and was not admissible in mitigation of damages.</p> <p>9. Libel and slandeb, § 134*—what may be shown where judge is libeled. In a suit for libel in charging a judge with unfitness by reason of his conduct and rulings in sex cases, defendant may show under a special plea of justification everything which transpired in such cases, any overt acts and rulings, all conduct on plaintiff’s part in the trial of sex cases, and any and all evidence submitted before plaintiff in such cases is competent, including cases not mentioned in the alleged libel.</p> <p>10. Libel and slandeb, § 740*—what evidence is admissible in justification. In a suit for libel in charging a judge with unfitness by reason of his conduct and rulings in cases before him involving sex questions, under a special plea of justification defendant may introduce in evidence a certified copy of the record in such a case tried before plaintiff, to be considered by the jury, in connection with the other facts in evidence, upon the question of justification and upon the issue of defendant's good faith and in mitigation of damages.</p> <p>11. Appeal and erbob, § 1309*—what may be assumed as to evidence admitted in libel suit. Until the contrary is established by the evidence, it must be assumed, on appeal, that a certified copy of an order appearing in the record in another case which was offered in evidence below speaks the truth as to the .facts recited therein.</p> <p>12. Libel and slander, § 142*—what evidence of 'justification may be excluded. In a suit for libel, proffered evidence which is admissible under defendant’s plea of justification does not come within the rule excluding evidence which merely tends to cast suspicion.</p> <p>13. Libel and slandeb, § 149*—what is effect of offer of evidence. In offering in evidence, in a suit for libel, an exhibit which is admissible on any other issue, it is not necessary, to render it admissible on the question of defendant’s good faith and want of malice, that the offer be limited to such issue, if the offer includes a reference to the issue of good faith and want of malice.</p> <p>14. Libel and slander, § 142*—what evidence is hearsay. In a suit for libel, while a witness may properly be permitted to testify that he talked with other persons in investigating before publishing the article complained of, his evidence as to what such persons said to him is properly excluded as hearsay.</p> <p>15. Libel and slander, § 161*—what question may be submitted to jury. In a suit for libel, in charging a judge with unfitness by reason of his conduct and rulings in sex cases in which defendant enters a plea of justification, it is proper to permit the jury to pass upon the fitness or unfitness oí plaintiff as a judge as determined by them from their consideration of the quality of his judicial acts.</p> <p>16. Libel and slander, § 140*—when evidence of reputation is admissible. In a suit for libel, in charging a judge With unfitness by reason of his conduct and rulings in sex cases, evidence as to plaintiff’s reputation in the trial of sex cases prior ¡to the date the alleged libel was published is admissible as tending to mitigate the damages.</p> <p>17. Libel and slander, § 140*—when entire article may be shown. Where plaintiff introduces, as an exhibit in a suit for libel, the headlines of an article published in defendant’s newspaper, defendant should be permitted to introduce the subject-matter of the article and of another article to which the headlines relate and which must be and is intended to be read in connection with and explanation of the headlines, notwithstanding the purpose in introducing the headlines was to show malice.</p> <p>18. Libel and slander, § 140*—when evidence of intimidation is admissible. In a suit for libel, in. charging a judge with unfitness by reason of his conduct and rulings in sex cases, evidence of a conversation between plaintiff and defendant’s reporter, shown to have been authorized by defendant to interview plaintiff, which tends to support plaintiff’s theory that defendant was seeking to intimidate him and influence him against impaneling a special grand jury, suggesting that the article complained of would be published if he did so, is admissible.</p> <p>19. Libel and slander, § 140*—when reiterations are admissible. In a suit for libel, articles and cartoons published after the article complained of reiterating the charge contained in the former article are admissible for the purpose of showing actual malice aggravating the damages recoverable.</p> <p>20. Libel and slander, § 56*—when statement is libelous per se. It is libelous per se to charge that a judge is unfit by reason of his rulings and conduct in sex cases.</p> <p>21. Libel and slander, § 128*—when defendant has burden of proof. In a suit for libel, where plaintiff has proven the publication of words libelous per se, the burden is on defendant to show that they were true, and defendant is not entitled, at the close of plaintiff’s evidence, to a directed verdict on the ground that plaintiff had not proven that the words were false.</p> <p>22. Libel and slander, § 56*—when plea of fair comment is not available. Where the words charged are, in part, statements of tact, and such words are libelous per se, there can be no defense of fair comment and criticism.</p> <p>23. Libel and slander, § 152*—when exemplary damages áre recoverable. In a suit for libel, where the words are libelous per se, exemplary and punitive damages are recoverable even though only implied malice is shown.</p> <p>24. Appeal and error, § 1256*—when error in instructions cannot be complained of. One cannot complain on appeal of instructions which are more favorable to him than the law warrants.</p> <p>On Petition fob Rehearing.</p> <p>1. Libel and slander, § 133*—when offer of evidence is competent. In a suit for libel, in charging that plaintiff is unfit as a judge by reason of his conduct and rulings in sex cases, in which defendant files a special plea of justification, the rule that an offer of evidence as to what transpired at the trial of any sex case tried before plaintiff, is competent, is to be construed as rendering competent any such material evidence at the time it is offered, providing it is counsel’s stated purpose in offering it that at least the substance of what occurred in the course of the particular sex case will eventually be offered and be shown to be material, and if the substance thereof is not eventually offered, such of the matter occurring in the sex case as has been introduced" should be stricken out unless it has, in and of itself, reasonably considered and having in mind the issue, some probative force and tends to support the theory of the defense.</p> <p>2. Libel and slander, § 105*—what must be extent of plea of justification. The rule that the plea of justification must be as broad as the charge, and one guilty of publishing the whole of the alleged defamatory matter cannot justify by showing that some of it, though divisible from the rest, was true, is subject to the qualification that where several separate and distinct matters' are charged, the defendant may justify as to one though, he fail as to the others.</p> <p>3. Libel and slander, § 146*—what is effect of proving truth of some of charges. In a suit for libel, where the articles complained of make certain charges of judicial misconduct against plaintiff, a judge, in the trial of sex cases, many of which cases are expressly mentioned, if defendant, who pleads justification, proves on the trial that any of such charges are true, it justifies in so far as those charges are involved.</p> <p>4. Libel and slander, § 142*—when judicial records are admissible. In a suit for libel where the publication complained of makes charges of judicial misconduct against plaintiff, a judge, in the trial of sex cases and defendant pleads justification, an exhibit, consisting of a certified copy of the record of one of such cases which was particularly pleaded in one of defendant’s special pleas of justification, showing that plaintiff imposed a fine of $5 on one found guilty of assault with intent to commit rape, is admissible, and plaintiff may introduce evidence in rebuttal to show that such record, which imports verity, is, in fact, correct, and such record is also admissible as tending to substantiate a similar statement of plaintiff’s holding in such case which was contained in an article offered in evidence by defendant after plaintiff had introduced in evidence the headlines preceding such article.</p> <p>5. Tkiai, § 56*—when witness may explain evidence received. After an exhibit consisting of the certified record of a case has been admitted in evidence, it is proper to permit a witness to testify that he had examined the record of the case in the court in which it was filed and found it as set forth in the exhibit.</p>

<p>1. Dismissal, nonsuit and discontinuance, § 2*—when court may dismiss. Where there is no issue joined, there is no contest, and all the court can do in the way of a final act is to dismiss the proceedings.</p> <p>2. Judsment, § 286*—when judgment will not he set aside. Where an issue is precipitated by the pleadings in a cause, it is ready for actual trial and is reached for trial on the regular call of the calendar and there is no default, the personal absence of plaintiff when the case is reached for trial in its regular course is no ground for setting aside the- judgment rendered therein.</p> <p>3. Replevin, § 153*rr-when judgment for damages may he enteredWhén an action of replevin, which is at issue, is reached on the regular call of the calendar and defendant’s plea prays a return of the goods together with his damages, even though plaintiff is personally absent when the case comes to trial, judgment may, under Rev. St. ch. 119, sec. 22 (J. & A. jf 9207), be entered for defendant for the damages to which the evidence shows him entitled by reason of the wrongful taking of the property.</p> <p>4. Appeal and errob, § 788*—when hill of exceptions is necessary. Where, in an action of replevin, plaintiff’s affidavit for replevin and his declaration state that a certain defendant wrongfully took and detained the goods and such defendant denies the allegations and alleges ownership of the goods in himself, to which plea plaintiff files a replication concluding to the country, and the case tried by a jury and a verdict is found for defendant and a judgment entered thereon, such judgment will not be disturbed by the Appellate Court in the absence of a bill of exceptions, on the contention that such defendant was not a necessary party and judgment could not be rendered in his favor.</p>

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

<p>1. Limitation of actions, § 91*—when payment by wife does not toll statute. A payment by a wife on an account owing by the husband does not stop the running of the statute of limitations.</p> <p>2. Limitation of actions, § 79*—what is effect of demands for payment. The fact that a creditor mails statements of his account to the debtor with his address on them so that they will be returned to him if not delivered to the debtor does not affect the running of the statute of limitations.</p>

<p>1. Appeal and error, § 828*—what need not be included in bill of exceptions. Where it appears thai the garnishment proceedings are a part of the cause as that in which the original judgment was entered and the trial court takes judicial notice of all that transpired in the cause, it is unnecessary to have the judgment and execution and return offered in evidence, and thereafter, on appeal or writ of error, made a part of the bill of exceptions, but it is sufficient if they appear in the common-law record.</p> <p>2. Evidence, § 4*—when court will take judicial notice of garnishment proceedings. On garnishment proceedings which are a part of the same cause as that in which the original, judgment was obtained, the trial court should take judicial notice of all that transpired in the cause.</p> <p>3. Garnishment, § 126*—what evidence as to ownership is admissible. On garnishment proceedings, evidence of the debtor, the nominal plaintiff, on behalf of the garnishee to show that the fund which it is sought to reach does not belong to him personally but as attorney, should be admitted.</p> <p>4. Garnishment, § 63*—when garnishee must state manner of holding fund. It is the garnishee’s duty to inform the court in just what way it holds the fund sought to be reached, particularly if it has knowledge that the fund is not the property of the debtor but belongs to others.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baud win, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hush R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>1. Insurance, § 822*—what is interest of beneficiary. The beneficiary named in a certificate of insurance issued by a fraternal organization has no vested interest in the certificate.</p> <p>2. Insurance, § 747*—lohen by-laios of fraternal order maybe changed. Where the contract between a member of a fraternal insurance society and the society reserves the right to the latter to amend or change the by-laws, and the member agrees to be bound thereby and accepts the certificate under such conditions, subsequently enacted by-laws are binding upon him.</p> <p>3. Insurance, § 7.46*—when by-law is not uncertain. The bylaw of a fraternal insurance organization which clearly provides that where there is not proof of aqtual death, no presumption of death shall arise by reason of a member’s continued absence, unheard from, until the full term of his expectancy of life has expired, is not void as uncertain, unreasonable or against public policy.</p> <p>4. Insurance, § 890*—what evidence is admissible to establish death. A by-law of a fraternal insurance order which provides that no lapse of time, absence or disappearance of a member shall entitle his beneficiary to recover the amount of his certificate "without proof of the actual death’’ of such member, does not necessarily exclude circumstantial evidence in connection with such disappearance.</p> <p>5. Constitutional law, § 95*—vested right in rule of evidence, No one has a vested right in a rule of evidence.</p> <p>6. Appeal and error, § 426*—when demurrer is necessary to attach plea. In the absence of a special demurrer, the Appellate Court need not discuss criticisms relating to the form of a plea.</p>

<p>1. .Execution, § 77*—lohat officer may levy. The bailiff of the Municipal Court of Chicago may levy, under a senior execution issued on a judgment of that court, on and take property held by the sheriff under a junior execution issued on a judgment of the circuit court.</p> <p>2. Execution, § 65*—when lien of execution has priority. Executions become liens upon personal property of the judgment debtor when delivered to the officer for service,- and when the property has already been seized under one execution, and several executions, whether issued out of the same court or delivered to the same officer or not, come ultimately into the hands of such levying officer before he makes a sale under the levy, he is bound to recognize the priority of the executions in the order in which they were delivered for service.</p>

<p>Theaters and shows, § 3*—when refusal to permit exhibition of moving picture will be sustained. On appeal from a judgment, rendered upon the verdict of a jury, ordering the issuance of a peremptory mandamus commanding the superintendent of police of the City of Chicago to grant petitioner a permit to exhibit publicly a certain moving pcture, held, after viewing the picture which was shown on a screen by the use of the films thereof filed as exhibits below which had been transmitted to the Appellate Court, that the finding that the defendant did not exercise his official discretion honestly and fairly in refusing the permit and that there was no reasonable basis for the censor’s judgment against the granting of the permit, was not supported by the evidence, and it was found that certain scenes therein were immoral and of an immoral nature and such as would tend to produce a harmful influence upon the minds of children.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>1. Appeal and ebbob, § 179.7*—when restitution may be refused on reversal. Restitution on the reversal of a case is not a matter of absolute right, but may, in a proper case and the exercise of a sound discretion, be refused.</p> <p>2. Mobtgages, § 656*—what is effect of reversal. The fact that the Supreme Court has held that a loan made by a corporation was ultra vires and the trust deeds securing it were invalid, on appeal from a judgment in proceedings to foreclose such deeds, and has reversed and remanded the cause, does not operate to give the mortgagor’s trustee in bankruptcy the right to recover from the corporation, on a petition by such trustee for restitution filed by him after the cause was remanded and redocketed, the proceeds received by it from the sale of the premises on foreclosure.</p> <p>3. Mobtgages, § 649*—when mortgagee is equitably entitled to portion of proceeds. Where the real consideration for a conveyance of a strip of land is a supposedly valid trust deed previously given by the grantee to the grantor on adjoining tracts, upon such trust deed being held invalid and a petition for restitution being filed by the mortgagor's trustee in bankruptcy for the recovery of the proceeds of the foreclosure sale thereunder, the mortgagee is equitably entitled to retain out of the proceeds the value of such strip, which had been also sold at foreclosure by virtue of a trust deed, given thereon as additional security for the indebtedness secured by the first trust deed.</p> <p>4. Mobtgages, § 649*—when rights of mortgagee are prior to those of other mortgagees. The rights of one who had, in good faith, loaned money on an invalid mortgage to enable the mortgagor to pay off a prior valid mortgage, for which purpose the money was used, to be subrogated to the mortgagor’s rights to the proceeds of a sale of the premises under such invalid mortgage, on a petition for restitution by the trustee in bankruptcy of such mortgagor to recover such proceeds, held prior to the rights of mortgagees under a junior mortgage.</p> <p>5. Spbbogation, § 24*—when mortgagee is entitled to subrogation. One who lends money on a defective mortgage to enable the mortgagor1 to discharge a prior valid mortgage upon the property is entitled to be subrogated, as against the trustee in bankruptcy of the mortgagor, to the rights of the prior mortgagee to the extent that the funds so loaned were used to discharge the prior mortgage and'will not be required to such extent to make restitution to the trustee of proceeds derived from the foreclosure and sale of the premises under the defective mortgage.</p> <p>6. Limitation or actions, .§ 99*-—when statute applies. Statutes of limitations are not always controlling in equity but will or will not be applied as circumstances and justice demand.</p> <p>7. Subrogation, § 32*—when statute of limitations does not bar right. Where the trustee in bankruptcy of a mortgagor sues for the restitution of the proceeds of the sale of the premises under foreclosure, setting up the invalidity of the mortgage and the mortgagee claims to he entitled by subrogation to a portion of such proceeds because the loan to secure which its mortgage was given was made to enable the mortgagor to discharge a prior valid mortgage, the statute of limitations or laches cannot be interposed by such trustee to bar this claim of the mortgagee ■ to the right of subrogation, notwithstanding such claim is set up more than 5 years after the prior mortgage was paid.</p> <p>8. Bankruptcy, § 44*—what is extent of trustee’s right to plead limitations. With regard to his right to plead laches or limitations, the trustee in bankruptcy stands in the shoes of and has no greater rights than the bankrupt.</p> <p>9. Subrogation, § 24*—when mortgagee is not estopped to claim subrogation. The fact that one who has in good faith loaned money upon a defective mortgage to pay off a prior valid mortgage, for which purpose the money was used, proceeded in litigation -involving the foreclosure and sale of the property under its mortgage, on the theory that its mortgage was valid, does not estop it to claim the right of subrogation under the prior mortgage, when restitution of such proceeds is sought from it after its own mortgage is found invalid.</p> <p>10. Subrogation, § 24*—when permitting of subrogation is not evasion of decision denying relief. Where the Supreme Court held that a mortgage under which there had been a foreclosure and sale was partly valid and partly invalid and that the cause was "remanded to the circuit court for further proceedings not inconsistent with the views expressed in this opinion,” to permit such mortgagee, on a petition for restitution filed by the mortgagor’s trustee after the remanding and redocketing of the case seeking a money recovery against the mortgagee, to be subrogated to the rights of a prior mortgage, to pay which its money had been loaned and used, does not permit him to do by indirection what the Supreme Court had denied him the right to do directly, as he has the right to interpose to such petition any equitable defense which he may have.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>1. Appeal and ebrob, § 290*—when order in supplemental proceedings is appealable. An order of the trial court made on proceedings supplemental to a judgment theretofore entered, and for the evident purpose of enabling the judgment creditor to realize on his judgment, is appealable.</p> <p>2. Appeal and ebrob, § 1303*—when order xoill be presumed supported by evidence. Where, on an appeal from an order entered in a supplementary proceeding under section 64 of the Municipal Court Act (J. & A. j[ 3381) directing the judgment debtor’s wife to transfer to the bailiff of the municipal court her title and interest in a judgment obtained by her against third persons, the evidence at the hearing under the citation is not preserved in the transcript, it will be presumed that there was sufficient evidence showing that the “right of possession” of said judgment in the judgment debtor was not substantially disputed, especially where it appears from a recital of such order that the sale by the wife which formed the basis of the judgment obtained by her was fraudulent as against the judgment creditor.</p> <p>3. Execution, § 270*—when judgment may he ordered delivered in supplemental proceedings. A judgment obtained by a judgment debtor’s wife, the right of the judgment debtor to which is not substantially disputed, is a chose in action of the judgment debtor which the court may order delivered to the bailiff for the use of the judgment creditor, in a supplementary proceeding under Municipal Court Act, sec. 64 (J. & A. j[ 3381).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1920.</p>

<p>Interlocutory appeal from the Circuit Court of Cook county; the Hon. George F. Barrett, Judge, presiding. Heard in the Branch Appellate Court.</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>Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, 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. Trial, § 195*—-when instruction to find for party witl he denied. Where, at the close of the evidence, defendant moves for an instruction to the jury to find the issues for defendant, the motion should be denied if there is any evidence in the record from which the jury could reasonably return a verdict for plaintiff; otherwise it should be granted.</p> <p>2. Negligence, § 185*—when evidence will warrant recovery. In an action to recover for personal injuries, plaintiff may recover if the evidence is sufficient under any good count.</p> <p>3. Negligence, § 45*—when doctrine of “attractive nuisance” does not apply. The principle of the “attractive nuisance” making an owner or occupier liable where the injury results from some dangerous element, a part of or inseparably connected with the alluring thing or device, cannot be invoked to establish liability for injury to a child caused by the explosion of a can into which another child had dropped a lighted match where the explosion did not take place until after the contents of one can had been poured into the other and the match applied.</p> <p>4. Negligence, § 45*—what is extent of doctrine of “attractive nuisance.”. Semhle, that the doctrine of “attractive nuisance” requires that the dangerous thing have a power of attraction so strong as to amount to an implied invitation to the child to come upon the premises, thus excluding him from the status of a voluntary trespasser.</p> <p>5. Negligence, § 45*—what is effect of gasoline or oil cans as attractive nuisances. In the legal sense, gasoline and oil cans are not such attraction or allurement as would prove irresistible to child instincts and curiosity.</p> <p>6. Negligence, § 194*—•when attractiveness to children is question of fact. While, ordinarily, the question whether any given thing or any situation created by the owner of premises will amount to an invitation to a child to come thereon is one of fact for the jury, the nature of the thing or of the situation created must be such that the jury can reasonably find that the child was so attracted.</p> <p>7. Negligence, § 45*—when premises are not rendered attractive try leaving oil cans thereon. The owner of vacant premises does not, by allowing oil and gasoline cans to remain thereon, invite the children of his neighborhood to trespass on the property, especially where there is nothing else on the premises of a nature to attract children.</p> <p>8. Negligence, § 49*—when aot of leaving oil and, gasoline cans on premises is not proximate cause of injury. Even though the owner of vacant property was negligent in permitting oil and gasoline cans to remain on his premises, it not appearing who placed them there, such negligence was not the proximate cause of the injury to plaintiff, a child of tender years, who was burned by the explosion of one of the cans which were carried into an adjoining aHey by other children who emptied one of the cans into the others and then applied lighted matches, causing the explosion.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard jn the Branch Appellate Court at the March term, 1919.</p>

<p>1. Contracts, § 125*—what is effect of illegality of consideration. A contract based upon an illegal or immoral consideration is unenforceable.</p> <p>2. Contracts, § 144*—when contract to influence legislation is unenforceable. A contract to perform services which will necessarily tend to influence improperly legislation, public contracts or the administration of justice, by reason of contingent compensation provided therein, is unenforceable.</p> <p>3. Appeal and error, § 365*—when invalidity of contract may be considered on appeal. Even though the objection that the contract on which recovery is sought is void as against public policy in that it provides. a contingent compensation for securing a contract from public officers, was not pleaded or otherwise raised in the trial court, the public interest requires that it be considered by the Appellate Court.</p> <p>4. Principal and agent, § 69*—when public policy does not prevent compensation. Public policy will not prevent an agent from recovering commissions, from his principal, under a contract providing for commissions contingent upon sales, because the sale of the article was made to public officials, where no improper means were adopted in effecting the sale.</p> <p>5. Principal and agent, § 83*—when contract for commissions is established by evidence. In an action by a salesman to recover commissions on sale, pursuant to a contract between plaintiff and defendant that defendant would pay plaintiff commissions on sales by him, evidence examined and held to support a finding that such sale was effected by plaintiff and was made pursuant to his original contract and not under ,a special arrangement as claimed by defendant.</p> <p>6. Principal and agent, § 81*—when defendant has burden of establishing agreement. In an action by a salesman against his employer to recover commissions claimed to be due him under his contract on a sale made thereunder, the burden is on defendant, who claims that such sale was made under a special agreement, to establish such contention.</p> <p>7. Principal and agent, § 82*—what evidence as to damages is admissible. In an action by a salesman to recover for breach of his contract of employment, it is proper to permit him to testify as to his earnings with other employers for the purpose of fixing a basis for damages for loss of prospective commissions under the contract in suit, and his evidence need not be limited to profits resulting from such contract.</p> <p>8. Appeal and error, § 1484*—when admission of evidence as to damages is harmless. Error in admitting evidence as to speculative profits in an action for breach of contract is harmless where the jury allowed no speculative damages.</p>

<p>1. Sales, § 153*—what constitutes acceptance of article purchased. The retention of a garment, by the person for whom it was made, for a month without attempting to return it or notifying the maker that it is not satisfactory constitutes an acceptance of the garment.</p> <p>2. Husband and wife, § 8*—when article purchased is family expense. Where a garment made for a married woman is accepted, it is kept for use and thus becomes a family expense for which the husband as well as the wife is liable.</p> <p>3. Husband and wife, § 8*—what are family expenses. To render the purchase price of an article a family expense, it is not necessary that the article shall actually be used in the family as the term “use” is commonly applied, but it is a legal use, as contemplated by the statute, when such article is in the family for actual use when required.</p> <p>4. Husband and wife, § 8*—what clothing is family expense. A wife’s dress is among the articles for which both husband and wife are chargeable as a “family expense” under the statute.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding. Heard 'in the Branch Appellate Court at the March term, 1919.</p>

<p>Appeal from the Municipal. Court of Chicago; the Hon". Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>1. Dead bodies, § 1*—who is entitled to tody. One who is the sister, or the nearest relative of the deceased, is entitled to the custody of his body for the purpose of burying it.</p> <p>2. Replevin; § 165*—what is essential to recover on replevin bond. There can be no recovery in an action upon a replevin bond without proof of a judgment in the replevin suit awarding a return of the property replevied, and in the absence of such judgment it must be assumed that it was made to appear to the court that the plaintiff in replevin had become entitled to the property.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hush J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Appeal from the Superior Court of Cook county; the Hqn. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in • the Branch Appellate Court at the March term, 1919.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Suimyan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>1. Cabbiers, § 96*—when delay in returning car is due to negligence. In an action against a railroad company to recover damages claimed to have been sustained by its negligence in failing to return in a reasonable time a car belonging to plaintiff, evidence examined and held to show that the delay in returning the car was caused by defendant’s negligence. ¡</p> <p>2. Carriers, § 201*—what charges may be collected' when private cars are furnished» Where private cars are furnished by a shipper for use in interstate commerce, the only compensation which the carrier can pay therefor is that fixed by the Interstate Commerce Commission, and such allowance or compensation can be increased or diminished by the Commission only.</p> <p>3. Carriers, § 110*—what is effect of rule as to charges in action for damages for delay. Rule 29 of the Official Classification fixed by the Interstate Commerce Commission, providing the' compensation or allowance which shall be paid by carriers to the owners of tank cars for the use of such cars does not apply to an action by the owner of a car to recover damages alleged to have been sustained by the carrier’s negligence in failing'to return the car within a reasonable time after the shipment which it contained had been delivered.</p> <p>4. Carriers, § 110*—what damages are without scopé of Interstate Commerce Act. Damages caused by a carrier’s negligence are not within the Interstate Commerce Act and are, therefore, without the scope of the Interstate Commerce Commission.</p> <p>5. Cabbiers, § 110*—what evidence is admissible to show damages for delay. In an action by the owner of a car against a carrier to recover damages alleged to have been sustained by its negligence in failing to return the car within a reasonable time, evidence as to the reasonable rental of the car is admissible on the question of damages.</p> <p>6. Carriers, § 96*—when owner of car may recover damages for delay. The owner of a car which is unnecessarily detained by the carrier after the freight contained therein has been delivered is entitled to recover the reasonable rental value of the car during the time of such unnecessary detention.</p>

<p>1. Insurance, § 72*—what constitutes change in interest in property. The execution of a contract of sale of insured premises whereunder the owner is to convey such premises when the other party shall make a certain number of payments provided for in the contract does not constitute a "change * * * in the interest” in the property within the meaning of a provision in the policy rendering it void in the case of change in the interest even though by such contract the owner has parted with an equitable interest, but the word “interest” as used in the provision is to be construed as meaning the same as title.</p> <p>2. Insurance, § 120*—how contract is construed. A policy of insurance is construed in favor of the insured, as against the insurer.</p> <p>3. Insurance, § 254*—when provision of policy as to change in ownership is violated. Where an executory contract of sale of insured premises has been made and possession delivered to the purchaser without the consent or knowledge of the insurer, a provision in the policy that it shall be void if any change takes pla.ce in the possession of the property is violated. •</p>

<p>1. Set-off and recoupment, § 31*—when statement of is insufficient. A statement of set-off attempting to set up in defendant’s favor a claim based on a non-negotiable chose in action of a third person which does not under oath allege that defendant is the actual bona fide owner of the chose in action, nor how and where he acquired title thereto, is insufficient under section 18 of the Practice Act (J. & A. f 8555).</p> <p>2. Set-off and recoupment, § 28*—how assignee . must plead chose in action 6y way of set-off. As without the authority conferred by section 18 of the Practice Act (J. & A. 8555), the assignee of a non-negotiable chose in action cannot sue thereon in his own name, in order that he may plead such chose in action by way of set-off he must' state his right of set-off in accordance with the requirements bf that provision.</p> <p>3. Set-off and becoupment, § 40*—what is effect of non-negotiahle chose in action as evidence. A non-negotiable chose in action has no greater evidentiary value in a cause of action by way of set-ofi than in an original suit.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. J. P. MoGoobty, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Bebnabd P. Babasa, Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>1. Mortgages, § 524*—when court may vacate order approving receiver's report. Even though the term at which it was entered has ended, a court may vacate its order approving the final report of a receiver appointed to collect profits in proceedings to foreclose a trust deed and open up its decree if, on hearing, it is found that the receiver procured the court’s approval by fraudulently failing to serve proper notice on one of the defendants to the foreclosure of the making of the motion.</p> <p>2. Mortgages, § 520*—what are duties of receiver to foreclose trust deed. Under the rules of the circuit court of Cook county, it is the duty of a receiver appointed in proceedings to foreclose a trust deed to serve due notice upon a defendant to such proceeding of the motion to have the receiver’s final report approved.</p> <p>3. Receivers, § 48*—when report of receiver may he modified. A court has power to compel a receiver appointed by it to modify his report at a term subsequent to that at which he was discharged.</p>

<p>1. Corporations, § 754*—when foreign corporation is not immune from process. That a foreign corporation is engaged in interstate commerce and, therefore, does not need a license from the State to do business therein does not give it immunity from the service of process issued by a court of the State.</p> <p>2. Corporations, § 709*—when foreign corporation is doing business in State. In an action- against a foreign corporation which pleads to the jurisdiction, asserting that it never did business in the State and that the person served as its alleged agent was not a representative capable of being served, uncontradicted evidence that the corporation’s product was being exploited in the State and large sales of its ■ product were being made there; that the efforts in this regard were being made by the agent served, whom it paid a salary and commissions; that the corporation paid the agent’s stenographer and home-office expenses, in part at least; that it furnished him stationery expressly announcing that he was its representative; that, in several instances, the agent collected delinquent accounts for it; that he made allowances to jobbers for advertising to advertise the corporation’s product purchased through him; that another person employed by jt in the State was undqr such agent’s direction and was engaged in “missionary work” for the sale of such product; that the goods sold to retailers in the State by these means would be sent to the jobber in the' State and the “missionary” would also get paid for his services, it was held that the corporation was doing business in the State and that service upon such agent was sufficient to confer jurisdiction.</p> <p>3. Conspiracy, § 14*—when evidence is insufficient to show conspiracy. In an action to recover for damages alleged to have been sustained through the conspiracy of defendants to deprive plaintiff of the benefits of a certain contract, to deprive him of commissions and of his good name, reputation and credit in the trade and to prevent him from securing orders, through causing him to be discharged and through circulating false and defamatory reports and stating that he was of unsound mind, evidence examined and held insufficient to establish a prima facie case, and that a verdict was properly directed for defendants.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. George F. Barbett, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. George F. Barrett, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Assault and battery, § 17*—when instruction is erroneous. In an action to recover damages for personal injuries alleged to have been caused by defendant having violently assaulted, struck and kicked plaintiff, severely injuring her, it is error to give an instruction that plaintiff must prove her case beyond a reasonable doubt, as it is sufficient for her to prove it by a preponderance of the evidence.</p>

<p>1. Municipal corporations, § 400*—how hond of contractor is construed. In a suit by a city against the sureties on a bond given to insure the faithful performance of a contract for the construction of a local improvement, the bond, contract and specifications must be construed together as one instrument.</p> <p>2. Municipal corporations, § 400*—when suit on contractor’s hond may he maintained. In a suit by a city against the sureties on a bond given to insure the faithful performance of a contract for the construction of a local improvement to recover the advanced cost of completing the contract after the contractor’s default, where the specifications provide that the Board of Local Improvements may determine, and the city may retain a sufficient amount to pay damages “for failure properly to commence and prosecute or properly to construct said work * * * or for any other default,” and that if the city has not sufficient money of the contractor in its possession, such damages shall be recovered in the city’s name in an action on the bond or otherwise, suit may be maintained by the city on the bond to recover damages occasioned by the contractor’s default and failure to complete the contract, and the right to bring such suit is not affected by the further provision of the specifications authorizing the city to pay out of funds due the contractor any laborers employed by him on the work and not paid.</p> <p>3. Municipal corporations, § 400*—what is not defense in suit on contractor’s hond. In a suit by a city against the sureties on a bond given to insure the faithful performance of a contract for the construction of a local improvement to recover the additional cost of completing such contract after the contractor had defaulted, where the specifications provide that in case of .any damage suffered as a result of the contractor’s default suit may be brought in the city’s name and such damages shall be paid to the city, it is no defense that the damages caused by the default were sustained by the property owners and not by the city.</p>

<p>Carriers, § 139*—when evidence is insufficient to warrant recovery for damage to shipment. In an action by a shipper of apples against a carrier to recover on its liability as warehouseman for damages to such apples by freezing, where the evidence is undisputed that the apples, which were consigned to plaintiffs’ order with directions to notify a third person, arrived at their destination, New York City, on December 7 in good condition and such third person was notified on three occasions of the arrival of the car and never advised defendant that he would not accept the shipment until January 13, and it further appears that railroads delivering apples in New York did not, at that time, furnish heater service, and there is nothing to show that defendant had such facilities, plaintiffs cannot recover.</p>

<p>1. Account, § 19*—what may he considered in determining existence of fiduciary relation. While no fiduciary relation exists per se between two persons as to a transaction between them merely because they are brother and sister and tenants in common of the property involved, the fact that they occupy these relations to each other is to be considered together with all the other facts and circumstances in passing upon the question of the existence of the fiduciary relationship.</p> <p>2. Account, § 19*—when fiduciary relation exists. Even though one has not been legally appointed executor of a deceased sister’s estate, where he, in fact, acted as such and had entire charge of the estate and also acted as agent as to the property for a sister who was one of the heirs, a fiduciary relationship existed between him and the latter as to his dealings with such property.</p> <p>3. Account, § 19*-^what is effect of fiduciary relation as to accounting. The existence of a fiduciary relationship between a vendor and a purchaser does not entitle the former to an accounting from the latter for profits made on a resale where the transaction between them is shown by the purchaser to have been fair and reasonable and for an adequate consideration.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>1. Liens, § 4*—when equitable lien of lessee is not established. A bill which sets up provisions of a lease that in the event the demised building or any part thereof shall be rendered untenantable by fire, the lessor shall restore the same within 90 days, and that in the event of the lessor’s failure to restore it, the lessee may, at his option, but without prejudice to his other remedies, terminate the lease, and avers the destruction of the premises, the lessee’s election not to terminate the lease, the lessor’s refusal to restore the building and its restoration by the lessee and asking an accounting and that the lessor be restrained from disposing of the premises, from prosecuting a forcible detainer suit commenced after the termination of the lease and from otherwise interfering with the lessee’s possession until he is reimbursed, does not show that the lessee has a right to an equitable lien or any other equitable relief, and is properly dismissed.</p> <p>2. Liens, § 4*—what is effect of possession as to equitable lien. An equitable lien is not necessarily conditioned upon the possession of the thing sought to be charged.</p>

<p>1. Forcible entry and detainer, § 64*—when process is unimportant. The municipal court of. Chicago having been expressly given jurisdiction of forcible detainer cases by section 2 of the Municipal Court Act (J. & A. If 3314), where the defendant in such an action, without questioning the mode or process by which he was brought before that court, submitted to its jurisdiction, the process is unimportant.</p> <p>2. Process, § 78*—when defeats of process are waived. A defendant appearing and defending upon the merits before a court having jurisdiction of the subject-matter waives any objection to the original process.</p> <p>3. Forcible entry and detainer, § 60*—when description of premises is sufficiently alleged. Where the venue of the complaint in a forcible detainer proceeding is laid in the “State of Illinois, City of Chicago,” and plaintiff proceeds to complain that she is “entitled to the possession of the following described premises in said city, to-wit: 4708 South Ashland Avenue,” the location of the premises is sufficiently designated as in the City of Chicago.</p> <p>4. Forcible entry and detainer, § 60*—when description of premises is sufficient for restitution. In a forcible detainer suit the complaint and proof examined and held to designate the premises with sufficient certainty to enable the officer executing the writ of restitution, awarded on the judgment for “possession of the premises described in the complaint,” to identify them with certainty.</p>

<p>Appeal from the, Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Municipal Court of Chicago; the Hon. Irwin R. Hazen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Process, § IS*—when alias summons may issue. Under section 4 of the Practice Act (J. & A. 1f 8541), providing for the issuance of an alias summons whenever it appears by the return of the sheriff or coroner that defendant is not found, an order by the court for an alias summons is not justified nor is the clerk authorized to issue such a summons after a lapse of more than 4 years after the issue of the original summons where the original summons was not placed in the sheriff’s hands, defendants were not notified in any manner of the pendency of the suit and no excuse is made for such nonaction nor any showing made why an alias summons should issue.</p> <p>2. Process, § 32*—when summons should he served. Where an action to recover for personal injuries is instituted, defendants are entitled to prompt notice of its pendency, especially where the damages are sought for alleged injuries suffered in connection with a temporary structure.</p> <p>3. Appearance, § 8*—what does not constitute. The mere recital in the trial court’s order that leave is given a defendant to plead, answer or demur by a certain date does not require that such defendant be considered, on appeal, as having entered a general appearance thereby waiving the question as the propriety of the issuance of an alias summons, for the purpose of moving to quash which defendant specially appeared, where the record does not disclose that defendant asked leave to plead, etc., but the inconsistency between defendant’s course of action and the recital in the order will be attributed to a clerical error in the entry of the order.</p>

<p>1. Infants, § 21*—to7ie.ro attorney’s services are .necessaries. The professional services of an attorney rendered in protecting and enforcing the civil or property rights of a minor may be a necessary for which the minor is bound.</p> <p>2. Infants, § 34*—who is “next friend.” A next friend is “one who, without being regularly appointed guardian, acts for the benefit of an infant, married woman or other person not sui juris.”</p> <p>3. Infants, § 34*—who may act as next friend. The stepmother of a minor with whom the latter lives and who stands in loco :parentis as to the minor has a right to act as the minor’s next friend, to employ an attorney to act for the benefit and in the interest of the minor.</p> <p>4. Attobníby and client, § 127*—when attorney is entitled to reasonable fee. Where in an action under the Attorney’s Lien Act (Hurd’s Rev. St. ch. 82, sec. 55, J. & A. f 611) it appears that the stepmother of a minor, with the consent of her husband, who is the minor’s father, and the acquiescence of the minor, signs a contract on the latter’s behalf retaining one as attorney to prosecute a claim of the minor for personal injuries against a railway company, such attorney to receive 50 per cent of the gross recovery, and the railway company is duly notified of the arrangement and of the attorney’s claim of a lien under the statute, and thereafter, in prosecution of such arrangement, the attorney brings an action in the name of the minor by the stepmother as next friend and performs services in the minor’s interest, the railway company recognizing him as the minor’s attorney and its representative conferring with him as to a settlement and subsequently effects a settlement of the claim for $500 in the probate court, in which settlement the attorney did not take part, held that the attorney is entitled to recover a reasonable fee against the railway company and that $250 is not an unreasonable amount.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Error to the Circuit Court of Cook county; the Hon. John H. Marshall, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. Assumpsit, § 67*—when services are presumed gratuitous. The general rule is that where persons live together as members of one family, the law does not imply a contract on the part of one of them to pay for nursing and care, but such services are presumed to have been gratuitous.</p> <p>2. Assumpsit, § 67*—when compensation for services may be recovered. Compensation for services rendered by one member of a family to another may be recovered if a reasonable inference arises from the evidence that an understanding existed between them by which the claimant was to receive pay for the services.</p> <p>3. Assumpsit, § 67*—how contract for services may be established. A contract on the part of one member of a family to pay for services rendered by another member may be established by facts and circumstances in evidence which show that when the services were rendered, both expected them to be paid for by the recipient.</p> <p>4. Executors and administrators, § 270*—when evidence establishes claim for services. On a claim against the estate of a deceased person for nursing and care given deceased, evidence showing repeated expressions by deceased of his appreciation of the value of the nursing, care and attention which claimant, a member ef the same family, had given him and that he expected to pay claimant for such services, some of such expressions being made in the latter’s hearing and under circumstances indicating that deceased had an understanding with the latter about the matter of payment, warrants the jury in inferring that claimant would fulfil his promise and pay her for her services.</p> <p>5. Husband and wife, § 127*—When wife may recover for services rendered in family. On a claim against the estate of a deceased person for nursing, care and attention rendered by claimant for deceased while living as a member of claimant’s family, claimant, though a married woman, is entitled to recover for such services in her own right as her separate earnings, even though the services were rendered in connection with household duties performed by her to assist her husband, where the services were distinctive and not a part of her household duties, though performed with her husband’s assent.</p> <p>6. Bxeoutobs and administrators, § 236*—how time for filing claims is computed. Semble,, that where, after the issuance of letters testamentary to one as executor and after he had published a notice fixing the day for adjusting claims against the estate, letters of administration de bonis non were issued to him as administrator, pursuant to an adjudication that the decedent died intestate, and the administrator' fixed another adjustment day, in ascertaining "whether a claim against the estate is barred,- the time to be deducted should be from the day of the death of intestate to tbe adjustment day fixed by the administrator, not- to the day fixed by the executor.</p> <p>7. Appeal and error, § 490*—when objection as to amount of recovery cannot be raised on appeal. On appeal from a judgment entered on a verdict after denial of a motion for a new trial, appellant cannot raise any question as to the amount of the verdict where he did not, in his motion for a new trial, assign as a reason therefor that the verdict was excessive, as he thereby waived any right to question the amount.</p> <p>8. Bxeoutobs and administbators, § 233*—lohen claim against estate is not barred. A claim against an administrator de bonis non for services rendered the intestate is not barred as to property of the estate not inventoried or accounted for by the executor in the first administration, even though not presented within one year from the date of the letters testamentary issued under the first administration.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the October term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. C. F. Irwin, Judge, presiding. Heard in this court at the April term, 1920.</p>

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

<p>1. Appeal and error, § 1797*—when reversal with direction to enter verdict is proper. Semble, that in an action by an insured for the use of the insurer to recover damages for the destruction of the insured property by fire, in which there was a jury trial and a verdict for defendant, judgment for defendant is not in bar, and if the point is raised by counsel, the Appellate Court will reverse with directions to enter a proper judgment.</p> <p>2. New trial, § 86*—when grounds relied on are waived,by motion. One filing a written motion for a new trial specifying the points relied upon thereby waives all points not so specified.</p> <p>3. Appeal and error, § 607*—when grounds for new trial cannot be urged on appeal. When the findings of the jury on special interrogatories are not specified, in the grounds for a new trial stated in the written motion therefor, they cannot be assigned as error in the Appellate Court.</p> <p>4. Appeal and error, § 607*—what objections are insufficient. The statement in the written motion for a new trial that the verdict is against the law and the evidence is not sufficient to raise the point that the answers of the jury to special interrogatories were contrary to the evidence.</p> <p>5. Evidence, § 443*—when question to expert witness is improper. Semble, that in an action against a railroad company to recover for the loss of a barn alleged to have been set fire to by a spark from defendant’s engine, it is error to permit an expert, who had not been at the fire and had no knowledge of the velocity of the wind at the time, to answer, over proper objection, a hypothetical question as to how far a spark escaping from an engine would go, while retaining sufficient heat to communicate fire, when a strong wind was blowing from the direction of the engine towards the barn in question.</p> <p>6. Appeal and error, § 450*—when objection to evidence cannot be urged on appeal. A proper ground of objection to a hypothetical question cannot be first raised in the Appellate Court even though the question was objected to on other grounds below.</p> <p>7. Instructions, § 81*—when instruction is erroneous as unduly emphasizing evidence. In an action to recover damages for the destruction of a barn alleged to have been burned by a fire set by sparks from defendant’s locomotive, an instruction given at defendant’s request that in determining whether the fire was caused by defendant's engine, the jury may consider the size and condition of the appliances in the engine to prevent the escape of sparks and fire, the distance from defendant’s track to the barn, the velocity of the wind and the life of the spark, “and all the other facts and circumstances shown ‘by the evidence,” is objectionable as singling a few matters in evidence favorable to defendant and omitting other matters equally material, such as that the engine was drawing a heavy freight train up a steep. grade and laboring heavily; that it was on a grade 16 or 18 feet above the level of the ground and therefore nearer the roof of the barn; that the fire was discovered 20 or 30 minutes after the train passed; that the fire was then burning on the roof; that the animals in the barn were burned on their heads and backs and not underneath; that there had been no fire in the barn that day and no smoking there; and that no other source of the fire than the engine appeared.</p> <p>8. Instbuctions, § 81*—when instruction is misleading. Instructions which set out a part only of the evidence on a material question are objectionable as tending to mislead the jury to suppose that the matters thus specially called- to their attention are those which are to be especially considered by them and are of controlling importance.</p> <p>9. Instructions, . § 81*—what is effect of instruction singling out facts. It is no answer to the objection to an instruction on the ground that it sets out only a part of the evidence on a material question that the other party might have drawn a similar instruction setting out the omitted matters.</p> <p>10. Railboads, § 941*—what instruction as to causing fire is erroneous. In an action to recover for the destruction of a barn burned by a fire alleged to have been set by a spark from defendant’s locomotive, it is error to instruct, at defendant’s request, that the mere fact that an engine passed the barn before the fire was discovered does not render defendant liable.</p>

<p>1. Perpetuities, § 1*—what rule against relates to. The rule against perpetuities relates to the time when title vests, and does not relate to the length of time during which the title may be enjoyed.</p> <p>2. Landlord and tenant, § 28*—when leases are supported try consideration. Where each of two leases of water power recites a consideration, contains mutual convenants, the lessees took possession, used the water and paid rent under the lease, and one of them was executed at the same time that the lessor conveyed certain real estate to the lessee, the instruments being consideration for each other, it was held that the leases were supported by consideration.</p> <p>3. Landlord and tenant, § 37*—when acknowledgment is not necessary. Leases of water containing a provision for a lien on certain realty to secure the rent under which the lessors and lessees have acted for many years are valid, notwithstanding imperfection in their execution, by reason of failure to have certain parties acknowledge them.</p> <p>4. Mortgages, § 49*—when acknowledgment is not necessary. A mortgage is valid between the parties without an acknowledgment, and its recording is notice to subsequent parties.</p> <p>5. Waters and watercourses, § 39*—what is effect of defective option to increase water power. Even though the exercise of an option for increasing the water power under a lease of water power is not properly executed or acknowledged, it is sufficient to create liability for the increased rent that the option was acted upon by both parties.</p> <p>6. Waters and • watercourses, § 41*—what is effect of condition that may interrupt lease. In a bill to foreclose a lien upon real estate for rent under a lease of water power, the fact that the water power was obtained by a dam across the Illinois river and the lease did not provide against the contingency that the term might be interrupted and destroyed by action of the United States, the State of Illinois or the Sanitary District of Chicago, does not render the lease void where there is no claim that any of such authorities intervened, and the lessee had the use of the right to the water power during all the time for which rent was charged.</p> <p>7. Landlord and tenant, § 332*—when lien is created. On a bill to foreclose certain liens upon real estate for rent due under leases of water power, certain provisions of the leases held to create a lien upon the real estate described therein.</p> <p>8. Landlord and tenant, § 352*—when lessor may redeem from foreclosure of lien. The lessor of water power under a lease creating a lien upon certain real estate to secure the payment of the rent may redeem such real estate and have the cost of the redemption included in the decree on the foreclosure of such lien.</p>

<p>Appeal from the Circuit Court of Du Page county; the Hon. ■ Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1920.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Contracts, | 378*—when execution of contract may he disproved under general issue. Defendant in a suit on a written contract who files a plea of the general issue verified by his affidavit, but files no affidavit denying execution of the contract sued on, is not precluded by section 52 of the Practice Act (J. & A. If 8589) from introducing evidence tending to show that he is not liable on the instrument set forth in the declaration.</p> <p>2. Contracts, § 378*—when contemporaneous instrument admissible in evidence. In an action upon a written contract, it is proper to admit in evidence another instrument executed at the same-time, between the same parties and respecting the same subject-matter, even though such evidence tends to vary or contradict the terms of the contract in suit which, by its terms, is apparently complete in itself.</p> <p>3. Contracts, $ 389*—when negligence in signing of contract is not question of law. In an action on a contract, where it appears that the contract, which purported to be executed in duplicate, was prepared in defendant’s presence by the agent of plaintiff, plaintiff being a well-known company, that both papers were on the same form, appeared alike, and recited that they were duplicates, it cannot be said, as a matter of law or fact, that defendant was negligent in reading only one of the papers before signing both.</p> <p>4. Contracts, § 120*—what is effect of failure to read contract. Failure to read a paper before signing it is not always negligence.</p> <p>5. Sales,- § 9*—when sale is not absolute. In an action upon a contract for subscription to books purporting to be executed in duplicate, the two instruments considered together held to constitute a sale upon approval and not an absolute sale, and that defendant could refuse to keep or pay for the books without assigning any reason.</p> <p>6. Appeal and error, § 1498*—when error in exclusion of evidence is harmless. Error in sustaining, in the course of the trial, objections to certain questions in the depositions and striking out the answers thereto is harmless where the questions and answers relate to matters not controverted but admitted by appellee as a witness.</p> <p>7. Contracts, § 394*—what instructions are erroneous. In an action on a contract, the refusal of instructions requested by plaintiff, placing an improper construction upon the contract and ignoring defendant’s defense, is proper.</p>