Volume 223 — Illinois Appellate Court Reports

<p>1. Appeal and ebbor—jurisdiction of Appellate Court of suit for accounting for real property. In a suit to dissolve a partnership and for an accounting of real estate owned by the partnership, such real estate is regarded in equity as personal property and the Appellate Court has jurisdiction of the appeal.</p> <p>2. Appeal and erbob—matters res judicata on second appeal. Where, on appeal of a suit involving the question of the existence of a partnership, the court held that a partnership existed and that appellant was entitled to an accounting and the decree was reversed and the cause remanded for further proceedings, the questions as to the existence of a partnership and the right to an accounting were res judicata and could not again be raised upon reinstatement of the case.</p> <p>3. Partnership—compensation of partner for sale of real estate. In a suit for a partnership accounting in a real estate selling transaction undér a contract whereby one of the partners was to sell the lots in question and for his services was “to be paid ten per cent of the gross amount of sales, and if he employs assistants he is to pay said assistants out of the said ten per cent,” the trial court properly decreed that the ten per cent allowed be in full for commissions, whether the sale was made by such partner alone or whether he employed others to assist him.</p> <p>4. Interest—period of allowance by court upon accounting of partnership transactions. In a suit for a partnership accounting, the court, upon decreeing an accounting, properly allowed interest from the date of the filing of the first hill, in the absence of a showing of a good reason for doing otherwise.</p> <p>5. Equity—necessity for reference to master of partnership accounting. While ordinarily the practice in a suit for an accounting is to refer the matter to the master in chancery to state, an account, where appellants went into the matter of an accounting and offered evidence in reference thereto without objection, they were not in a position to complain because the court heard the matter in open court.</p> <p>6. Equity—hearing of partnership accounting by court. In a suit for an accounting where the account was not complicated and appellee did not contest the figures submitted by appellant, the whole controversy being as- to whether appellant was entitled to a certain line of credits, the court could hear the matter of accounting without reference to the master in chancery.</p> <p>7. Appeal—limitation of action as res judicata on second appeal. Where upon a former appeal the court decided that the bill was not barred by the statute of limitations, that question could not again be raised on a second appeal.</p>

<p>Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>Appeal from the Circuit Court of Pope county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>1. Justices of the peace—what required of appellant to perfect appeal. When a party appealing from, a judgment in justice’s court filed his appeal bond with the clerk of the county court within twenty days and it was approved, appellant had done all that was required of him by statute to perfect his appeal, although the papers were not sent up within the time specified by statute.</p> <p>2. Justices of the peace—when county court is without jdrisdiction to dismiss appeal on motion of appellee. Where no summons was issued or served on the appellee on appeal from a judgment in justice’s court and he did not enter his written appearance ten days before the commencement of the term of court to which the appeal was taken, the county court was without jurisdiction to dismiss the appeal on the motion of appellee.</p>

<p>Error to the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. New trial—when plaintiff has absolute right to move for new trial. Under section 77 of the Practice Act (Cahill’s Ill. St. ch. 110, ¶ 77), a plaintiff against whom a judgment had been entered upon an instructed verdict had an absolute right to move for a new trial, even after judgment was entered, providing the motion was presented at the same term of court.</p> <p>2. Appeal and error—when bill of exceptions is filed in time. Where a motion to set aside a judgment was filed during the term at which it was rendered, the judgment did not become final until the motion was disposed of, and where that was done at a subsequent term and thereupon an appeal was prayed and allowed, a bill of exceptions filed within the time fixed by the court was filed in apt time.</p> <p>3. Appeal and error—evidence and peremptory instruction as reviewable without motion for new trial. Though a plaintiff, against whom judgment was rendered upon an instructed verdict, did not move for a new trial, where she preserved the court’s rulings on the admission and exclusion of evidence and the giving of the peremptory instruction, she was entitled to have those questions considered.</p> <p>4. Workmen’s Compensation Act—how rejection of act can be made issue. Cahill’s Ill. St. ch. 48, ¶ 203, is purely remedial, having application only to a rule of evidence and practice, and is applicable to a case in which the declaration was filed after its passage though the cause of action arose prior to its enactment, and, where the declaration averred that defendant had rejected the Workmen’s Compensation Act, that fact could be made an issue only by a verified plea denying the allegation.</p> <p>5. Mines and minerals—where exclusion of evidence in action for death of miner is not error. In an action for the death of a miner, based upon the theory that death was caused by failure to provide fresh air in the room where deceased was working, where there was no evidence to show that the condition of the body was such as to indicate that he died from suffocation occasioned by gas, smoke or dust, nor that if death had been so caused there would be nothing in the condition of the body to indicate the cause of death, the court did not err in refusing to allow plaintiff to show the condition of the air in other rooms on other days prior to the accident.</p> <p>6. Pleading—waiver of similiter to plea of general issue by going to trial. By going to trial without a similiter to the plea of the general issue, plaintiff waived that question..</p> <p>7. Trial—right of court to enter judgment immediately upon return of verdict. Under section 77 of the Practice Act (Cahill’s Ill. St. ch. 110, ¶ 77), the court may enter judgment immediately upon the return of a verdict, and the party thereby loses no rights as he may, at the same term, move for a new trial or in arrest of judgment, notwithstanding the entry of judgment, and is not required to present his bill of exceptions until the motions are passed upon.</p> <p>8. Appeal and error—record as not subject to contradiction by affidavits of jurors. A party cannot contradict the record which shows that the jury returned a verdict of not guilty by affidavits of some of the jurors.</p> <p>9. Trial—formal verdict as not required when court directs verdict. When the court directs a verdict, it i§- not necessary that a verdict be actually written out and signed by the jury and returned into court.</p>

<p>1. Mortgages—appointment of receiver for rents and profits before entry of deficiency decree. Where, by the express terms of a trust deed in the nature of a mortgage, a lien is given upon rents and profits, the one entitled to enforce such lien is not bound to wait for the entry of a deficiency decree before procuring the appointment of a receiver when the facts indicate a necessity for it, and the court may, at any time after the filing of the bill, appoint a receiver for the purpose of collecting and retaining, until the period of redemption has expired, the rents so pledged.</p> <p>2. Mortgages—right to lien on rents though not expressly given in mortgage. If mortgagors are insolvent and the mortgaged premises are insufficient' security for the debt, the right to enforce a lien upon the rents will exist although the mortgage does not, by express words, give a lien thereon.</p> <p>3. Mortgages—effect of express lien on income of mortgaged property. Where a mortgage gives an express lien upon the income of the mortgaged property, it is immaterial that there was no proof of the insolvency of those liable for the indebtedness or that the mortgagors are not still owners of the equity of redemption.</p> <p>4. Mortgages—foreclosure of trust deed containing express lien on income as extinguishment of deed. A decree foreclosing a trust deed which, contained an express lien on the income of the property does not extinguish the trust deed and render it functus oficio.</p> <p>5. Mortgages—appointment of receiver of income before entry of deficiency decree. The fact that an order for the application of the income from mortgaged property could not be made until after a deficiency decree will not prevent the exercise of the court’s jurisdiction to that end by appointing a receiver before the deficiency is ascertained, where the facts justify it.</p> <p>6. Mortgages—construction of trust deed as to pledge of rents. The wording of a trust deed, held to constitute a pledge of the rents to satisfy the debt though the granting clause did not contain the words “rents” or “pledge.”</p> <p>7. Mortgages—effect of sale of premises without an order for continuance of receivership to collect rents. Where the appointment of a receiver was based upon the lien granted by a trust, deed on the rents, the lien was not extinguished by the sale of the land, and an order appointing and directing a receiver to collect such rents until the expiration of the period of redemption was sufficient without an order for continuance of the receivership after sale for the purpose of enforcing the equitable lien.</p>

<p>Appeal from Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.</p>

<p>Appeal from the Circuit Court of Cook ^ county; the Hon. Jesse A. Baldwin, Judge, presiding.- Heard in the Branch Appellate Court at the October term, 1920. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Master and servant—liability for act of servant loaned to another. Where defendant, the owner of an automobile, loaned it and the driver to an auto livery company to be used by the latter in connection with a funeral it was conducting and, between the time the machine left defendant’s premises and -its return, defendant gave the driver no orders or instructions except to report to the auto livery company, and defendant had no connection with 'the funeral and was paid by the livery company for the use of the machine and its driver, the driver became during that time the servant of the livery company a-nd the defendant was not liable for injuries resulting from his negligence during such service.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Héard in the Branch Appellate Court at the October term, 1920. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Specific performance—contract must be unambiguous. Specific performance can be decreed only when the terms of the contract in question are clear, certain and free from ambiguity.</p> <p>2. Specific performance—necessity that contract.be complete. If a contract does not embrace all of the terms and conditions intended to be covered by it and some are left for future agreement, specific performance cannot be awarded.</p> <p>3. Specific performance—of contract contemplating a future contract fixing details. An agreement for the erection of a garage upon certain lots to be rented to complainant when completed, which contemplated a future written contract in which provisions should be made as to other details as to which no definite agreement had been reached, was not a sufficient basis for a decree- of specific performance.</p> <p>4. Specific performance—effect of failure of contract to show that some defendants were bound thereby. The fact that an agreement as to which specific performance is sought contains nothings indicating that four of the defendants are in any way bound by its terms, would be sufficient to defeat specific performance.</p> <p>5. Specific performance—effect of a subsequent contract. Where an agreement to erect a building and lease it to complainant was not sufficient as a basis for a decree for specific performance, the fact that, later, negotiations were entered into and a form of lease agreed upon in which plaintiff and his wife, who was not one of the original parties, were the lessees and all of the defendants were lessors, four of whom were not parties to the original agreement, does not afford a sufficient reason for decreeing specific performance of the original agreement.</p> <p>6. Landlobd and tenant—effect of deposit by, lessee to show good faith in addition to advance payment of rent. An agreement for a lease in which it was provided that the plaintiff was to deposit $1,000 to be applied as rental on the first part of the lease term and also that plaintiff should deposit $500 as earnest money to show good faith and as further consideration, which was to be applied as rental, held not to mean that the $500 vras to constitute a part of the $1,000 deposit.</p>

<p>1. Quo warranto—averment of election pursuant to a certain act as conclusion of law. An averment in an information in a proceeding in the nature of a quo warranto to try the right of defendants to the offices of county central committeemen, that defendants were .elected pursuant to a certain act, is not a conclusion of law but a statement of ultimate fact which, on demurrer, must be taken to be true.</p> <p>2. Quo warranto—right of defendants to invoke a presumption contrary to admitted fact. Where an information in the nature of a quo warranto charges that defendants claim title to positions as committeemen by virtue of an election held under a law which was declared unconstitutional and their demurrers admit the truth of such averment, they cannot invoke a presumption, contrary to such admitted fact, that they were elected under the prior law which the void act purported to repeal.</p> <p>3. Appeal and error—effect of transfer of case to the Appellate Court originally taken to the Supreme Court as involving a franchise. Where an appeal from quo warranto proceedings was first taken to the Supreme Court on the theory that the case involved a franchise as well as an office, and was transferred to the Appellate Court, presumably on the theory that no franchise is involved, the sole question for the consideration of the latter court is whether it involves an office.</p> <p>4. Quo warranto—offices the title to which may be tried by. The usual test to determine whether a certain office is' one the title to which can be tried by an information in the nature of á quo warranto is whether it is a public office, one of a public nature involving the exercise of a governmental function, or some portion of the sovereignty of the State.</p> <p>5. Officers—county central committeemen as public officers. County central committeemen of political parties, elected under the Primary Law, are not public officers and an information in the nature of a quo warranto to oust them will not lie.</p>

<p>1. Quo warranto—applicability to office of Ward committeemen. The position of ward committeeman of a political party is not a public office, "and an information in the nature of a quo warranto will not lie to try title thereto.</p> <p>2. Officers—necessity that ward committeemen reside in the ward represented. Paragraph 5, sec. 9, of the Primary Act as amended by the Act of 1913 (Sess. Laws 1913, p. 312, Cahill’s Ill. St. ch. 46, ¶ 389, subd. 5) does not require that ward committeemen shall reside in the ward they represent.</p>

<p>1. Appeal and error—when postponement of action on appeal bond warranted. In an action on an appeal bond brought after the dismissal of the appeal, allegations in the affidavit of merits that a writ of error, in which the principal was seeking a review of the judgment rendered against it, was pending and that the writ had been made a supersedeas, stated matters which, although not strictly proper in such an affidavit, at least warranted a postponement of the action on the bond.</p> <p>2. Appeal and erbor—when judgment for plaintiff in action on appeal bond will be reversed. Where, in an action on an appeal bond brought after the dismissal of the appeal, the affidavit of merits set up the pendency of a writ of error suit brought by the principal in the bdnd, and that the writ had been made a supersedeas prior to the bringing of the action on the bond, the Appellate Court treated such allegations as notice of the pendency of the writ of error suit and reversed the judgment for plaintiff with directions to vacate the order striking the affidavit of merits, although strictly speaking, such allegations had no place in the affidavit, and the matters should have been brought to the attention of the court below by affidavit and notice, with a motion to stay proceedings until the termination of the writ of error suit.</p> <p>3. Appeal and error—when application for second extension of time for filing complete record comes too late. An application for a second extension of time for filing a complete record came too late, where such application was not made before the last day fixed by law for the filing of records in the Appellate Court.</p> <p>4. Appeal aito error—error in dimissing appeal not subject to correction on appeal from judgment on appeal bond. Even if the dismissal of an appeal had been error, such error could not be corrected on a subsequent appeal from a judgment on the appeal bond.</p>

<p>1. Divorce—when evidence sufficient to show desertion. Testimony, under a supplemental bill charging desertion, that complainant had not lived with defendant from the time he left her on August 18, 1917, up to the time of the hearing in question; that defendant had not supported her; that during the time they lived together he had come home drunk and wanted money and left her after that and that she treated him “just fine” while she lived with him, supported by a witness who testified that complainant had treated defendant “all right”; that defendant had left complainant and that they had lived apart since August 18, 1917, without fault on complainant’s part, was sufficient to sustain the charge of desertion.</p> <p>2. Divorce—when character of Mil deemed immaterial on writ of error. Where an original bill for divorce not charging desertion was filed on June 20, 1918, and the defendant was defaulted after personal service, and a supplemental bill, charging desertion was filed on October 28' 1919, pursuant to notice served on the defendant who was defaulted for failing to file his answer, and where complainant died after obtaining a decree upon the supplemental bill, and her heirs were brought in by scire facias, and defendant claimed that the decree must be reversed because the desertion charged in the supplemental bill had not continued for 2 years next prior to the filing of the original bill, the defendant’s defaults and complainant’s death following the entry of the decree were considered, and the court did not deem it necessary that the bill under which evidence was taken and the decree entered, technically, was to be called a supplemental bill or a bill in the nature of a supplemental bill or an original bill, as the questions presented for decision were not raised below and were therefore deemed to have been waived, and by defendant’s failure to appear and answer to the charge of desertion, he in effect confessed the truth of the charges.</p> <p>3. Divorce—when defaulting defendant not permitted, on appeal, to question validity of decree. A defendant who had been defaulted under a bill for divorce which charged desertion and which was filed as a supplemental bill, the original bill not having charged desertion, was not permitted to question the validity of 1 the decree for the first time in the Appellate Court, after the death of the complainant, because the subject-matter of the suit was the marital status, and by the failure to appear he confessed that ho had so acted that the marriage should be dissolved, and in the Appellate Court he sought, by what was in legal effect a new suit, to have adjudicated his rights to certain property, which question was only incidentally involved in the trial court.</p>

<p>Error to the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Richard S. , Tuthill, Judge, presiding. Heard in this court at the March term, 1921.</p>

<p>1. Street railroads—when direction of verdict, in death case, for companies sued improper. An instruction to find for the defendant street car companies was improperly given in a death case, where plaintiff’s intestate was struck while attempting to save her child, aged about two years, from a position of peril, and there was evidence that when the child started to cross the street, the car in question was approaching at a speed of from 18 to 20 miles an hour some considerable distance from the point where the child, if it continued, would have reached the track; that the mother, seeing the danger, ran forward and rescued the child, but was herself struck; that the car did not slacken its speed until shortly before the mother was struck, and that the car ran an additional 50 or 60 feet thereafter before it stopped.</p> <p>2. Negligence—when question must be submitted to jury. So long as a question remains whether either party in a personal injury case has performed his legal duty or has observed that degree of care and caution imposed by law, and the determination, of this involves the weighing and consideration of evidence, the question must be submitted to the jury as one of fact.</p> <p>3. Courts—when decisions of Appellate Court are not pertinent. The Appellate Court exclusively has the power to find the facts contrary to the finding of a jury; hence decisions of that court in which there were findings of fact upon conditions somewhat analogous to the instant case in which plaintiff’s intestate was struck by a street car while attempting to save her small child, and in which there was a peremptory instruction to find for the defendants, were held not pertinent, and the judgment for defendants was reversed.</p> <p>4. Street railroads—contributory negligence of mother struck by car in attempting to rescxie child from track as question for jivry. It being beyond all controversy that all reasonable persons would not say that the conduct of a mother in attempting to rescue her child from a street car track and being herself struck in making the rescue was contributory negligence, therefore the question was one of fact and proper for submission to the jury.</p>

<p>1. Sales—when jury to determine terms. Where the terms of the sales of the cars of strawberries in question were the subject of sharp dispute, it was pre-eminently for the jury to determine, as a question of fact, the terms of such sales.</p> <p>2. Sales—where delivery to buyer takes place. If a contract provides that goods are to be delivered “f. o. b. point of shipment,” presumably they pass to the buyer from that point, and delivery to the buyer is held to -take place wherever or whenever designated in connection with the letters f. o. b.</p> <p>3. Sales—when title and, possession p'ass to buyer. Paragraphs 1 and 2, sec. 18 and Rule 1, sec. 19 of the Uniform Sales Act (Cahill’s Ill. St. ch. 121a, ¶¶ 21, 22), relating to the time when the property in goods passes to the buyer under an unconditional contract to sell specific goods, applied to the facts in an action to recover the purchase price of certain cars of strawberries, and held that the title and possession passed to defendant when the sales were made, and, the contents of the cars being then in good condition, that, if there was any subsequent deterioration caused by any negligent delay of the railroads in carrying such contents to the cold storage warehouse pursuant to defendant’s instructions, defendant must look to the carrier for compensation, and plaintiff’s right to recover the price at which the berries were sold was not affected thereby</p> <p>4. Frauds, Statute of—when sales of goods come within excep tion to statute. Where a buyer accepted the goods in question at the time the respective sales were made, the transactions came within the exception to the statute of frauds, section 4, Uniform Sales Act (Cahill’s Ill. St. ch. 121a, ¶ 7), in view of section 48 (Cahill’s Ill. St. ch. 121a, ¶ 51), providing that the buyer is deemed to have accepted the goods when he intimates to the seller that )he has accepted them, or when the goods have been delivered to him and he does any act in relation to them inconsistent with the ownership of the seller, or when, after the expiration of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. -</p> <p>5. Appeal and error—when verdict of jury conclusive as to right of recoupment. The defendant in an action to recover the price of certain cars of strawberries which had deteriorated after acceptance cannot claim anything in the Appellate Court by way of recoupment where all the testimony offered upon the point was admitted, and no instructions which might have been tendered were refused, and the verdict for plaintiff was consistent with the jury’s view of the evidence.</p> <p>6. Instructions—what requisite to plaintiff’s instructions. A plaintiff is obliged only to present the law correctly in his instructions upon his theory of the case, and it is not necessary in an instruction to negative matters of defense.</p>

<p>1. Municipal cobporations—when change in street grade constitutes damaging private property for public use. Any change in the grade of a street by which ingress to or egress from the private property of an owner is obstructed amounts to damaging private property for public use within the meaning of article II, sec. 13, of the Constitution of 1870, providing that private property shall not be taken or damaged for public use without just compensation. -</p> <p>2. Municipal corporations-—when action for damages resulting from depression of street accrues. The conmon-Iaw action in question against a city to recover damages to plaintiff’s property, resulting from the depression of a public street under the terms of an ordinance requiring the elevation of railroad tracks, accrued when the damage was actually sustained when the street was depressed, and not when the ordinance was passed nor when the work had so far progressed that it was possible to ascertain what the damage would probably be.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Error to the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October terta, 1920.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Weapons—refusal to admit license in evidence in prosecution for carrying concealed weapon as reversible error. Under section 4 of the Deadly Weapon Act, in force July 11, 1919 (Cahill’s Ill. St. ch. 38, ¶ 137), providing for the issuance of a written license by the chief police officers in cities, and justices of the peace and police magistrates elsewhere in the State, to any citizen of the State to carry concealed a pistol or revolver, there is no requirement that the place of residence of the applicant for the license should be within the territorial jurisdiction of the justice or officer issuing it, aside from the requirement that" applicant be a citizen of the State.</p>

<p>1. Sales—when right to damages for breach of warranty not defeated by failure to examine merchandise before.shipment. Under a contract for the sale of sugar containing the words “Subject to examination by the buyer before shipment,” the failure to so examine did not preclude the buyer from subsequently claiming damages for breach of warranty.</p> <p>2. Sales—failure to give notice to seller of breach of warranty as barring buyer's claim therefor. Under Cahill’s Ill. St. ch. 121a, ¶ 52, sec. 49, providing that acceptance does not bar an action for damages, but that if after acceptance of the purchased goods by the buyer the buyer fails to give notice to the seller of a breach of warranty within a reasonable time after the buyer knows or ought to know of the breach, the seller shall not be liable therefor,, the defendant in an action for the price of a car of sugar lost any claim it had under said section, where there was no evidence tending to show notice to plaintiff of any breach of warranty, and where the first plaintiff knew of any such claim was when the set-off was filed, more than a year after the receipt of the sugar.</p>

<p>1.' Divobce—when finding in decree as to cruelty is insufficient to sustain decree. There seems to have been some doubt whether the rule in equity that a party in whose favor a decree is entered must preserve in the record the evidence justifying the decree, and that a general finding that all the material allegations of the bill are true and proven and that the equities are with complainant, is not sufficient to support the decree, applied to divorce .proceedings since such proceedings are to a great extent statutory and the parties may have a trial by jury; but upon a careful, consideration of the authorities the court held that where the evidence was not preserved, the finding in the decree for divorce in question that “defendant has been guilty of extreme and repeated cruelty since said marriage, as alleged in complainant’s bill of complaint,” was wholly insufficient to sustain the decree, there having been no jury.</p> <p>2. Divorce—when finding in decree as to desertion is sufficient to sustain decree. Where a divorce decree found that subsequent to the intermarriage of the parties the defendant wilfully deserted and absented himself from complainant with no reasonable cause for the space of two years immediately prior to the filing of the bill of complaint, and defendant claimed that, because it appeared that complainant was compelled to leave defendant by reason of his alleged acts of cruelty, this constituted constructive desertion by defendant, and therefore the decree should have found the specific acts of cruelty, held that, although the finding as to cruelty was insufficient to sustain the decree on that ground, the finding on the question of desertion was sufficient.</p> <p>3. Divorce—when allegations as to residence of complainant are sufficient. Where an original divorce bill, filed August 20, 1919, alleged complainant’s- residence in Chicago, Cook county, Illinois, for upwards of one year prior to filing the bill, and the amended bill filed September 30, 1919, alleged that residence upwards of one year before filing that bill, and the decree recited that the bill came on for hearing upon the amended bill, etc., all parties being represented and that complainant was an actual resident of the State of Illinois and had been such for more than one year prior to the commencement of the suit, the allegations as to residence were sufficient to invest the trial court with jurisdiction, although such allegations were somewhat ambiguous.</p> <p>4. Divorce—when finding in decree as to residence of complainant is sufficient. A finding in a divorce decree that complainant was a resident of the State of Illinois was sufficient without naming the county, where the original and amended bills alleged that complainant was a resident of Chicago, Cook county, Illinois, and defendant in his answer admitted that complainant was a resident of that city.</p> <p>5. Divorce—when decree not subject to reversal on ground of failure to dispose of cross-bill. A divorce decree was not subject to reversal on the ground that it failed to dispose of defendant’s cross-bill, where such decree recited that the case came on for hearing on the pleadings, including the cross-bill, and it was apparent that the court heard the issues raised by the cross-bill, and-as the decree in favor of complainant and against the defendant, in substance, disposed of the cross-bill.</p>

<p>1. Death—allegation in action for wrongful death as to date of death. Although it is the law that, in actions brought under the Injuries Act (Cahill’s Ill. St. ch. 70, ¶¶ 1, 2), the date o£ the death of the decedent must be shown to state a cause of action, such date may be alleged under a videlicet; but in testing the sufficiency of the declaration the time stated, although ■ laid under a videlicet, must be taken as the true date.</p> <p>&. Pleading—cure by verdict of defect in declaration in action for wrongful death. The point that the date of the death of the decedent must be shown in the declaration in an action under the Injuries Act (Cahill’s Ill. St. ch. 70, ¶¶ 1, 2), in order to state a cause of action, was not tenable because such a defect is cured by verdict</p> <p>3. Appeal and error—when question of error in refusing instruction cannot be considered. Instructions have no place in the common-law record and can only be made part of the record by being incorporated in a bill of exceptions certified to by the trial judge, and therefore where there was no bill of exceptions in the action in question brought under the Injuries Act (Cahill’s Ill. St. ch. 70, ¶¶ 1, 2), but some of the instructions had been copied into the common-law record, the point that the court erred in refusing an instruction offered by defendant, to the effect that before plaintiff could recover he was required to prove his case beyond a reasonable doubt, could not be considered.</p>

<p>‘ Appeal from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1921.</p>

<p>1. Carriers—what is meaning of “baggage.” The word “baggage” has a different meaning when used to describe articles transported in a trunk by a railroad as an incident to the transportation of the owner than it has when used to describe articles transported in a trunk or other receptacle unrelated to the transportation of their owner, by a .transportation company for a specified compensation; and though the nature of the articles determines the liability of a railroad, it does not that of a transfer company.</p> <p>2. Carriers—liability of transfer company for trunh and all its contents notwithstanding limitation of liability. A transfer company was held liable for a trunk and all its contents, although some of such contents was “baggage” in the restricted sense, and though the owner was silent as to the contents of the trunk, and the receipt recited on its reverse side that it was given upon the express or implied representation that the article of baggage did not exceed $100 in value and contained no other property than personal effects known as passenger’s ordinary railroad baggage, and that as to any other property, liability was limited to wilful negligence.</p> <p>3. Carriers—limitation of liability by transfer company. Under section 1 of the Act on common carriers (Cahill’s Ill. St. ch. 27, ¶ 1), providing that a common carrier cannot limit its common-law liability to deliver the property safely, a transfer company could not limit its liability to $100, for the loss of baggage, by recitals on the back of the receipt.</p> <p>4. Appeal and error—right to question validity of municipal court rule for first time on appeal. The contention that municipal court rule 9 was unreasonable and contrary to the statute was not considered, where raised for the first time on appeal.</p> <p>5. Carriers—limitation of liability by transfer company. Where a transfer company contends that as a common carrier it was engaged in the transportation of “passengers and baggage only,” if, as a carrier of goods, where the owner did not become a passenger with such carrier, as was the situation in the case in question where the owner’s trunk had been turned over to the company, such carrier was engaged in the business of transporting “baggage only,” in its restricted sense, it could not limit its liability as it attempted to do without bringing that fact home to the knowledge of the owner, and there was no implied authority in an agent of the owner to enter into a contract in the owner’s behalf providing for a restricted liability, (per Thomson, J., specially concurring.)</p> <p>6. Carriers—burden of proof when transfer company has attempted to limit liability. The burden was on the defendant transfer company to establish that plaintiff had knowledge of, and that defendant’s liability was intended to be restricted by, recitals on ■the back of the receipt, (per Thomson, J., specially concurring.)</p> <p>7. Carriers—what proof required of transfer company that has limited its liability. Even if the owner of a trunk received by a transfer company had -assented to the agreement limiting liability to $100, it was incumbent on the company to establish that the loss was not occasioned by its wilful negligence, because the clause limiting liability also provided that if any property other than effects known as passengers’ ordinary railroad baggage should be the baggage, its liability therefor should be limited to that of bailee, being for wilful negligence only; and where the company is unable to show how or when the articles were lost, it would only be reasonable to conclude they had been lost through gross negligence or misfeasance, (per Thomson, J., specially concurring.)</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Criminal Court of Cook county; the Hon. Kiokham Scanlakt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.</p>

<p>Trial—when refusal of trial court to order stenographer to furnish report of trial at defendant’s cost is not error. The refusal of the trial court to enter a rule on the stenographer, who reported the case in question, to show cause why he should not furnish a stenographic report of the trial, and to order him to furnish such report at defendant’s cost, was not error, as such stenographer was an employee of plaintiff, who hired him, and was bound by the terms of his hiring, and, as to transcribing his notes and furnishing a typewritten copy, was not amenable to the orders of the trial judge.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.</p>

<p>1. Action—what determines whether action is ex contractu or ex delicto. Whether an action is ex contractu or ex delicto does not depend upon the understanding of counsel or of the trial court, nor upon the form, of the judgment rendered, but must be wholly determined from the pleadings.</p> <p>2. Action—when action for damages for excavating helow party wall is ex contractu. A statement of claim which recited the making of a party-wall agreement between the predecessors in title of plaintiff and defendants and alleged that as the result of improper excavating by defendants the wall settled, making it necessary for plaintiff to make certain repairs “all of which work became necessary and was done to minimize the damages suffered hy plaintiff by reason of the wrongful acts of the defendants,” set up a cause of action ex contractu, and an affidavit of merits admitting the party-wall agreement, denying its violation, and denying that defendants excavated below the footings of the wall or that the injury to plaintiff’s building was due to any acts of defendants joined issue on that theory.</p> <p>3. Municipal Court op Chicago—when action for breach of contract rights in party wall is within court’s Jurisdiction. An action for damages in the sum of $5,006, resulting from a breach of the contract rights of plaintiff in a party wall between his building and that of defendants, is in the nature of a common-law action of assumpsit and is within the jurisdiction of the municipal court of Chicago.</p> <p>4. Party walls—when evidence sufficient to sustain finding as to cause of plaintiff’s damages. In an action ex contractu for damages to plaintiff’s building by breach of a party-wall agreement by defendants, evidence examined and held to sustain the finding that such damages were caused by changes made by defendants upon their premises.</p> <p>5. Party walls—what is right of adjacent owner as to use of wall. Each adjacent owner of a party wall has the right to its use in the improvement of his property, hut at his own peril, so far as injury may result therefrom to his neighbor.</p> <p>6. Party walls—what is measure of damages for injury to building by making of improvement on adjoining property. In an action ex contractu for damages sustained to plaintiff’s building by reason of alterations made upon defendants’ adjoining premises in violation of a party-wall agreement, the measure of damages is the difference in value of the property in question before and after the making of the improvement causing the injury.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1920.</p>

<p>Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1921. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1921.</p>

<p>1. Master and servant—sufficiency of evidence in action for damages for inducing actor to quit employment. In an action for damages based upon the action of defendant in inducing an actor to leave plaintiff’s show suddenly while he was under contract for a further period and to enter defendant’s employ, evidence examined and held sufficient to sustain a judgment in favor of plaintiff.</p> <p>2. Master and servant—when damages for inducing actor to quit employment are not excessive. In an action for wrongfully inducing an actor to leave the employment of plaintiff in violation of his contract and to enter the employment of defendant, the amount of the judgment cannot be regarded as excessive where nearly the amount awarded is made up by the difference between the salary paid such employee and that paid the person engaged by plaintiff to take his place.</p>

<p>Error to the Criminal Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1921.</p>

<p>1. Waiver—right of party to waive statutory or constitutional provision made for his benefit. A party may waive any provision made for his benefit, constitutional as well as statutory.</p> <p>2. Jdby—waiver of right to jury trial. A party who voluntarily remains away from a trial and thus abstains from asserting her right to a trial by jury is in no more favorable position to claim the right than if she had been present and acquiesced in a trial without a jury.</p> <p>3. Divorce—waiver of right to jury trial. While trial by jury in a divorce cáse is a matter of right, it may be waived and where a party who has requested a jury in such a case neglects to appear and claim the right, a judgment rendered without a jury will not be void for want of jurisdiction.</p> <p>4. Divorce—sufficiency of evidence to establish desertion. In a divorce suit brought by the husband on the ground of desertion, evidence examined and held sufficient to establish the desertion claimed.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1921.</p>

<p>1. Insurance—party against whom action on automobile policy is properly brought. In an action upon an automobile insurance policy in an unincorporated association, held that defendant was acting as agent of an undisclosed principal, nominally as its attorney in fact, and that suit was properly brought against him individually.</p> <p>2. Appeal and error—when objection to calling person as witness need not be considered. An objection, in an action on an automobile insurance policy issued in the name of an unincorporated association, to calling as a witness, under section 33 of the Municipal Court Act (Cahill’s Ill. St. ch. 37, ¶ 421) one who signed the policy as “President Advisory Board,” need not be considered where such person was later called as the only witness for the defense.</p>

<p>Appeal-from the Superior Court of Cook county; |the Hon. Harry A. Lewis, Judge, presiding. Heard in' the Branch Appellate Court at the March term, 1921.</p>

<p>1. Negugeh'ce—when question whether negligence was proximate cause of personal injuries is for jury. Whether the negligence charged in the declaration in an action for personal injuries was the proximate cause of the injuries is a question of fact for the jury if there is any evidence tending to establish such fact; otherwise it becomes a question of law.</p> <p>2. Carriers—sufficiency of evidence as to proximate cause of injuries to person at depot for purpose of bidding farewell to passenger. In an action for damages for personal injuries sustained by plaintiff while at defendant’s depot on the occasion of the departure of her son and other soldiers, held that there was evidence tending to show that defendant’s alleged breaches of duty in not furnishing sufficient light and in failing to provide guards sufficient to control the crowd constituted the proximate cause of her injuries.</p> <p>3. Cabbiebs—duty to person who goes to station to meet incoming or accompanying outgoing passengers. A duty exists on the part of a railroad company to one who goes to its station to meet incoming or accompany outgoing passengers to exercise reasonable care in keeping the platform properly lighted and in safe condition.</p> <p>4. Damages—whew giving of instructions permitting consideration of future effects of personal injuries is not error. Where the character of plaintiff’s injuries indicated that they were of such a nature as to involve some future efiects. upon her physical condition, no error was committed by the trial judge in giving instructions whidh permitted the jury to consider that element in determining the damages.</p>

<p>1. Customs and usages—how custom established. A custom cannot be established by one instance but must be proved to be so general, uniform and frequent as to warrant an inference that the party against whom it is asserted had a knowledge of it and contracted with reference to it.</p> <p>2. Customs and usages—number of witnesses required to establish custom. A custom should be established by the testimony of several witnesses.</p> <p>3. Customs and usages—knowledge of person sought to be af- ■ fected by custom. Although real estate hoards and renting agencies may by their rules have sought to establish a custom of charging, upon termination of their agencies 2% per cent commission upon the unexpired terms of all leases made or renewed by them, such custom cannot be made applicable to a landlord unless it is shown that he ha$ actual knowledge of the existence of the custom or that he had had previous transactions or a course of dealing of such a nature that knowledge on his part of the existence of such custom might be presumed.</p> <p>4. Customs and usages—what is operation of custom. When the existence of a custom has been proved, it has the force of law within the sphere where established and enters into the contracts of those within that sphere who have knowledge of its existence.</p> <p>5. Customs and usages—how presumption of Imoioledge of custom may be shown. A presumption of knowledge of a custom may be shown by facts or circumstances. 1</p> <p>6. Customs and usages—insufficiency of evidence to establish custom of rental agents. In an action for money withheld hy rental agents, held that the evidence was insufficient to establish a custom for such agents upon termination of their agency to charge a commission upon the unexpired terms of all leases made or renewed by them.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Anton T. Zeman, Judge, presiding. -Heard in the Branch Appellate Court at the March term, 1921.</p>

<p>1. Carriers-—right to recover from passenger paying less than lawful fare. Where the fare paid^by an interstate passenger is less than the carrier was lawfully permitted to charge, because less than the tariff schedule filed with the Interstate Commerce Commission, the carrier is entitled to recover the difference from the passenger.</p> <p>2. Trial—when direction of verdict is improper. When there is evidence fairly tending to establish plaintiff’s case it is a usurpation of the province of the jury for the court to peremptorily direct a verdict, although there also is evidence strongly tending to show the contrary.</p>

<p>1. Corporations—when return does not show service of process on corporation. A purported return of service of process upon a corporation in which it is mentioned only by a recital that another corporation upon which service was attempted “was formerly known as” the corporation in question, does not in the remotest degree approximate a showing of service.</p> <p>2. Corporations—service of process on agent or officer other than president. Before service can be had on a corporation by leaving a copy with some agent or officer, other than the president, the return must show that the president cannot be found in the county.</p> <p>3. Corporations—when return of service of process on corporation is insufficient. A purported return of service of process on a corporation by leaving a copy of the writ with some officer other than the president upon being unable to find such president in the county is insufficient where it recites merely “not being able to find the President,” with nothing to show what president the officer was unable to find or what he was president of or where he was unable to find him; where it does not recite that the writ was served on the within-named corporation or anything equivalent to it; and where it recites merely “I have served the within” and “I have served by reading and leaving a copy” with nothing to show what it was the officer served or of what a copy was left.</p>

<p>1. Trusts—when provision in will as to appointment of trustees does not apply. A provision in a will for the appointment of three certain persons as executors and trustees and that if at any time during the trust there should be a vacancy, it is the desire of the testator that the courts appoint such persons to be trustees “as may be selected by the survivor or survivors” of the persons named in the will as trustees, did not apply where all of the executors had resigned and declined to be appointed as trustees and there was no survivor to select persons to fill the vacancies.</p> <p>2. Trusts—when court acts within powers and within terms of will in appointment of trustees. Where a will provided that certain persons should be appointed as trustees and that if there should be a vacancy in all the trusteeships the court should appoint suitable persons of the county, and all of the persons named refused to act as trustees, the court acted within its powers and within the terms of the will when, after consultation with the attorneys of the respective parties, he named trustees other than those recommended by those named by the testator.</p> <p>3. Trusts—when appointment by court of trustees of own choosing is proper. WThere the executors named in a will, in consideration of $41,000 paid by the widow of testator, resigned and declined to act as trustees and recommended the appointment by the court of certain persons chosen and named by the widow as administrators de bonis non with the will annexed, the court properly found the transaction to be fraudulent and, disregarding their recommendations, appointed trustees of his own choosing.</p> <p>4. Trusts—when circuit court not required to appoint as trustees persons named by county court as administrators de bonis non. Although the county court adopted the suggestion of retiring executors of a will and appointed as their successors persons named by them, and the testator in his will expressed a desire that the executors appointed by the county court and the trustees appointed by the circuit court be the same persons, the circuit court was not bound to appoint the persons named by the county court as administrators de bonis non.</p> <p>5. Wills—right of testator to control courts' adjudications. A testator cannot by his will control courts as to how certain questiqns shall be adjudicated.</p>

<p>Executors and administrators—when widow required to pay rent for homestead and to account for income from other property. Where, by an antenuptial contract, the wife agreed to receive a certain sum to be paid out of the husband’s estate, in case of his death, in lieu of homestead, dower, widow’s award and any distribution that might be coming to her as his widow under the laws of IJU-, nois in the property owned by the husband, its value being specified in the contract, including real estate in the State of Kansas, and the sum named was received by the widow out of the estate, she was, where there were no minor children, properly required to pay a reasonable rental for the homestead which she occupied for one year after the husband’s death and to account in full for income received from the property in Kansas, especially where no showing was made as to her claimed right to retain one-half of such sum under the laws of that State.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. Robebt J. Gbieb, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Appeal from the County Court of McDonough county; the Hon. Chabees I. Imes, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>Appeal from the Circuit Court of Chámpaign county; the Hon. Franklin H. Boggs, .Judge, presiding. Heard in this court at the October term, 1920. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. Geobgb A. Sentel, Judge, presiding. Heard in this court at the October term, 1920.</p>

<p>1. Appeal and error—duty of appellant to furnish complete abstract. It is the duty oí a party bringing to the Appellate Court a record for review to furnish a complete abstract or abridgment of that record so that the court can see from it all that is necessary in order to pass upon the errors assigned and argued.</p> <p>2. Appeal and error—necessity that reasons for reversing judgment or decree appear by abstract. The record on appeal will not be searched for reasons to reverse the judgment or decree, but such reasons must be made to appear by the abstract.</p> <p>3. Appeal and error—materiality of rulings of trial court on motion for new trial. The rulings of the trial court on motion for new trial are material for the Appellate Court to know.</p> <p>4. Appeal and error—necessity that judgment be shown. A judgment will not be reversed by the Appellate Court unless a judgment is shown.</p> <p>5. Appeal and error—when abstract is insufficient. An abstract which fails to show that any judgment was rendered or that the motion for a new trial was ever heard or disposed of is insufficient and the judgment will be affirmed on that ground. ‘</p>

<p>1. Ejectment—suggestion of damages for mesne profits as new suit in assumpsit. The suggestion of damages for mesne profits in an action of ejectment under Cahill’s Ill. St. ch. 45, ¶ 44, is a new suit in assumpsit and not a continuation of the ejectment suit.</p> <p>2. Ejectment—how mesne profits can be recovered. The suggestion of damages for mesne profits in an action of ejectment, under Cahill’s Ill. St. ch. 45, ¶ 44, is the only way in which such profits, up to the issuance of the writ of possession, can be recovered by the successful plaintiff in an ejectment suit.</p> <p>3. Ejectment—cause of action for mesne profits as existent at common law. The cause of action for mesne profits in ejectment was not created by statute but existed at the common law, the statute (Cahill’s Ill. St. ch. 45, ¶ 44), merely providing a remedy.</p> <p>4. Abatement and revival—right to damages for mesne profits as surviving death of defendant. A right to damages for mesne profits in an action of ejectment survives the death of the defendant.</p> <p>5. Ejectment—when year for filing of suggestion of damages for mesne profits begins to run. Under Cahill’s Ill. St. ch. 45, ¶ 44, a suggestion of damages for mesne profits may be filed at any time within one year after the judgment of affirmance by the Supreme Court of the judgment of eviction in the circuit court, and need not be filed within one year after the judgment of the circuit court is pronounced.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding. Heard in this courts at the April term, 1921. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Master and servant—when instruction in action under Federal Employers’ Liability Act which ignores defense of assumed risk is erroneous. In an action under the Federal Employers’ Liability Act for the death of a railroad employee, where one of the issues under the pleadings was .that of assumed risk, an instruction which ignored that defense and practically told the jury that plaintiff was entitled to recover if they found defendant guilty of the negligence charged, was erroneous. ¡</p> <p>2. Master and servant—when instruction in action under Federal Employers’ Liability Act which ignores statutory provision as to comparative negligence is erroneous. In an action under the Federal Employers’ Liability Act for negligently causing the death of a railroad employee, where there was evidence tending to show contributory negligence, an instruction on damages which ignored the provision of the statute as to comparative negligence in the determination of damages, was erroneous.</p>

<p>1. Railroads—sufficiency of evidence to sustain verdict for injured street car conductor. In an action by a street car conductor for injuries received when defendant’s engine collided with the street car which plaintiff was hoarding after going upon defendant’s tracks to ascertain if the crossing was clear and signaling the car to cross under the belief that the way was clear, evidence examined and held sufficient to sustain a verdict for plaintiff.</p> <p>2. Railroads—admissibility of evidence in action by street car conductor for personal injuries. In an action by a street car conductor for injuries received when defendant’s engine collided with the street car in plaintiff’s charge, evidence that no headlight was burning upon defendant’s engine was admissible as bearing on the question of plaintiS’s care but not as a basis of recovery.</p> <p>3. Negligence—right to recover for acts not averred. When a-plaintiff .sets out in his declaration the negligent acts of defendant which he claims entitles him to recover, he must prove such acts and cannot recover because of negligent acts not averred in the declaration even if such acts caused the injury. '</p> <p>4. Municipal corporations—when city ordinance need not be specially pleaded. A city ordinance invoked as a defense may be introduced in evidence under the general inssue without specially pleading it.</p> <p>5. Municipal corporations—when city ordinance must be specially pleaded. When a cause of action is predicated upon a city ordinance, the ordinance must be specially pleaded to be admissible in evidence.</p> <p>6. Statutes—when statute must be specially pleaded. When a cause of action is predicated on a statute, the statute must be pleaded.</p> <p>7. Railroads—when defendant entitled to instruction that absence of headlight cannot be considered as negligence. In an action for injuries received in a collision between defendant’s engine and a street car, where the declaration did not allege a failure to have a headlight, defendant was entitled to an instruction that failure to have a headlight, even if proved, could not be considered as negligence in the case.</p> <p>8. Evidence—when error to exclude photographs. Where the accuracy and authenticity of photographs of the railroad and street car tracks and surroundings at the place of an accident were not questioned, it was error to exclude them on the ground that the situation was better described by the evidence.</p>

<p>1. Executors and administrators—when evidence sufficient to malee prima facie case for claimant. Where claimant against an estate for services rendered in the care of intestate by claimant and her husband, since deceased, presented evidence that tended to show that neither party expected or intended that the services should be rendered gratuitously and that intestate intended that claimant and her husband should receive compensation and that they expected to be remunerated therefor but that they had not received either the money or the deed to property which they were to receive for such services, such evidence made a prima facie case for claimant.</p> <p>2. Executors and administrators—claim, against estate as not barred by suit for specific performance. By going into a court of chancery to secure from the administratrix specific performance of a contract for the care of a person during the remaining years of his life, complainant did not bar herself from afterward, upon failure of that suit, presenting her claim ftp- services under the same contract against his estate.</p> <p>3. Judgment—plea of res adjudicata as precluded by reversal of decree relied on. A judgment which has been reversed upon ap,peal is' of no force whatever, and a decree for specific performance of a contract against the administratrix of an estate having been reversed, nothing in that decree can be set up as res adjudicata in a suit to enforce a claim against the estate of intestate based upon the same contract.</p> <p>4. Judgment—when reversed decree for specific performance is not res adjudicata as to claim against deceased’s estate. Where a complainant brought suit individually and as administratrix of her husband’s estate against the administratrix of the estate of her husband’s father for specific performance of a contract for conveyance of land in consideration of their care of him during his later years and also upon an individual claim for board, and the decree did not find that complainant individually and as administratrix of her husband was not entitled jointly to any compensation under the contract in question as the claim for board set out in the bill and disallowed by the decree was in each specified as an individual claim, but on the contrary the court specifically found that, under the contract, there was a joint claim for joint services and decreed specific performance therefor and, on appeal by defendant from the whole decree, it was reversed, such decree was not res adjudicate as to a subsequent claim by complainant in her individual capacity and as administratrix of the estate of her husband against the estate of defendant’s intestate.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>1. Wills—what testimony incompetent in suit involving construction of will. In a suit involving tlie construction of a will, testimony by the person who drew the will as to what he understood the intention of testatrix to be in a certain matter was incompetent.</p> <p>2. Wills—presumption that testator intended to dispose of all of property. The law will presume that the testator intended to dispose of all of his property, and the will is to be so construed unless such presumption is clearly rebutted by the provisions of the will.</p> <p>3. Wills—construction of residuary clause. Where testatrix, in the residuary clause of her will, did not merely direct that the residuum be divided among the persons named as legatees but thereafter in the same paragraph specified appellant by name as one of the persons to take thereunder and specified his proportional share in the residue, held that testator intended that appellant should receive such proportion of the residuary estate.</p>

<p>1. Wills—right under bequest of legatee and assignee. A bequest in a will of a specific sum does not give the legatee the absolute right to payment of such sum in cash out of the funds of the estate, but whether he shall receive all, or a part, or more of such legacy depends upon the amount, if anything, which shall be found due him upon settlement of the estate, and an assignee of a legacy or distributive share can take no greater share.</p> <p>2. Wills—deduction from legacy of indebtedness to estate. An executor of a will has the right to deduct from a legacy any indebtedness of a legatee to the estate even though the legacy has been assigned by the legatee.</p> <p>3. Wills—when assignee of legacies talees nothing by assignments. Where legatees gave promissory notes to a creditor and to secure same executed assignments of their legacies, such assignee took nothing by the assignments where the indebtedness of the legatees to the estate equaled the amount of their legacies.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. Gut R. Williams, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard' in this court at the April term, 1921.</p>

<p>1. Railroads—care required of person approaching crossing. It is the settled law in this State that one who approaches a railroad crossing must use an amount of care commensurate with the known danger.</p> <p>2. Negligence—necessity of allegation of due care and caution. In an action for personal injuries caused by the negligence of another, an allegation that plaintiff was in the exercise of due care and caution for his safety is necessary and essential.</p> <p>3. Negligence—necessity of proof of due care. To warrant recovery in an action for personal injuries, due care on the part of plaintiff must be supported by evidence, such due care not being presumed from the mere happening of the accident, the negligence of defendant and a consideration of the instinct of self-preservation.</p> <p>4. Railroads—when automobile driver fails to exercise ordinary care. When plaintiff approached a railroad in an automobile going 10 to 15 miles per hour, having an unobstructed view for 29 feet before reaching the track and the ability to stop her car within that distance, but took no precautions to discover an approaching train and did not see it before she was struck, she failed to exercise such ordinary care for her own safety as would permit her to recover for damages sustained.</p> <p>5. Negligence—on what liability for personal injuries must be based. Liability for personal injuries cannot rest upon imagination, speculation or conjecture nor upon a choice between two views equally compatible with the evidence, but must be based upon facts established by evidence fairly tending to prove them.</p>

<p>1. Receivers—what is object of appointment. The object of appointing a receiver is to preserve the property for the benefit of all concerned.</p> <p>2. Receivers—right of court to continue business. While the authority of a court to continue a business in the hands of a receiver is rather an exception to a general rule than the rule itself, the court in its discretion has such right upon a proper showing being made.</p> <p>3. Corporations—issuance and priority of receiver’s certificates. The power of a court to authorize a receiver of a corporation to issue certificates to enable him to carry on the business should be exercised only when it is made to appear clearly to the court that it is for the best interest of all the parties, but when it is made to appear that it apparently is necessary in order to preserve the corporate property or franchises, the court will make such certificates superior to prior liens without the consent of the holders thereof.</p> <p>4. Railroads—right of court to subject property to payment of expenses of receivership. The receivers of a railroad are the officers and agents of the court and not of the parties, and it is the right of the court, essential to its own efficiency, to subject the property to the payment of the necessary expenses of the receivership.</p> <p>5. Receivers—when receiver will be appointed to carry on business. A court will not appoint a receiver to carry on a business unless it is first made clear that to do so will he for the best interest of all parties concerned.</p> <p>6. Railroads—presumption as to operation of road by receiver: A court having found that it was for the best interest of all parties concerned that a railroad be operated by a receiver, that condition will be presumed to continue until the contrary is shown, and, no petition to discontinue the operation of the road having been filed and no evidence to the contrary appearing on the hearing on a petition for permission to issue receivers’ certificates, the presumption is that it is still for the best interest of all concerned that the operation of the road continue.</p> <p>7. Appeal and error—when authorization of issuance of receivers’ certificates upheld. The exercise of the power of' a court to authorize the issuance of receivers’ certificates rests largely in its discretion and will be upheld on appeal if such discretion is not abused.</p> <p>8. Appeal and error—when authorization of issuance of receivers’ certificates upheld. Upon petition of the receivers of a railroad for permission to issue certificates pi indebtedness, held that the record did not show an abuse of discretion on the part of the circuit court and that its action in authorizing the issuance of receivers’ certificates should be upheld as far as could lawfully be done.</p> <p>9. Appeal and error—when order authorizing issuance of certificates by railroad receivers will be reversed and remanded for modification. Where an order of the circuit court was an unconditional grant of authority to the receivers of a railroad to issue certificates of "indebtedness in a sum exceeding that authorized by Act of Congress of Feb. 28, 1920, sec. 20a, without the consent and approval of the Interstate Commerce Commission, and the rules of the commission require that there shall be filed with the application for authority an opinion of • counsel that the issue in respect to which authority is sought is or will be legal if authorized and approved by the commission, and the only valid basis for such an opinion would be an order of the court authorizing the issue provided it thereafter be approved by the commission, the order of the court will be reversed and remanded with direction to so modify it.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Thomas' M. Jett, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>Appeal from the Circuit Court of Menard county; the Hon, City R. Williams, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. T. N. Green. Judge, presiding. ' Heard in this court at the April term, 1921.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>CokpokattoiYS—when purchaser from corporation cannot plead ultra vires. The purchaser of an automobile from a corporation, having received the benefit of the contract of sale which was fully performed by delivering the automobile to him, cannot be heard to object that the contract is an ultra vires one, the making of which was not within the legitimate powers of the corporation, and a demurrer to such a plea is properly sustained.</p>

<p>Executors and administrators—what statute governs time for paying docket fee on appeal. An appeal to the circuit court from the county court, taken under section 68, ch. 3, of an Act regarding the administration of estates (Cahill’s Ill. St. ch. 3, ¶ 69) is governed, in regard to the time for payment of the docket or filing fee, by section 62, ch. 79, Rev. St. 1874, concerning appeals from justice’s courts (J. & A. ¶ 6976), as it was before being amended by section 115, art. X, ch. 79 (Cahill’s Ill. St. ch. 79, ¶ 116), and therefore it is not necessary that such fee be paid within 20 days after judgment.</p>

<p>1. Automobiles and garages—allegations as to unlawful as alleging wilful and wanton negligence. In an action of trespass charging that defendant drove his automobile at an unreasonable speed and at a speed in excess of 20 miles an hour on a highway and greater than 6 miles an hour around a curve where the view was obstructed and thereby violently knocked plaintiff down and injured her, the allegations amounted to a charge of an unlawful beating of plaintiff as the result of the criminal or wanton and wilful negligence of defendant, to which allegations contributory negligence is no defense.</p> <p>2. Automobiles and garages—instruction as to intent to injure in action based on unlawful operation of automobile. In an action of trespass in striking plaintiff by defendant with his automobile while driving at unreasonable and unlawful speed, the intention of defendant to injure plaintiff is not an essential element of the case and reference in several instructions to such intention as one of the factors in the case may have led the jury into'thinking it was an essential element.</p> <p>3. Automobiles and garages—instruction assuming negligence on the part of plaintiff. In an action of trespass for injuries received by plaintiff by defendant’s automobile while she was riding with her husband in another car, an instruction to find for defendant if the jury believed the injury resulted solely from the negligence of plaintiff’s husband was erroneous as assuming that plaintiff and her husband were negligent and merely submitting the question whether their negligence was the sole cause of the injury.</p> <p>4. Automobiles and garages—instruction as to duty of passenger in a vehicle in an action based on wilful and wanton negligence. In an action of trespass for injuries to plaintiff by defend, ant’s automobile while he was driving at an unlawful speed, where plaintiff was riding in another automobile driven by her husband at the time of the injury, the question of the duty of a passenger riding in a vehicle was not involved and an instruction upon that question was not pertinent to the issue of whether defendant was guilty of wanton and wilful negligence.</p> <p>5. Automobiles and'garages—effect of speed limitation in Motor 'Vehicle Act. Section 10 of the Motor Vehicle Act (Cahill’s Ill. St. ch. 95a, ¶ 23) makes the wilful driving of a vehicle at the prohibited rate unlawful, not merely prima facie evidence of negligence.</p> <p>6. Assault and battery—effect of battery by criminal negligence. Where a battery is the result of criminal negligence, the wrongdoer is guilty of assault and battery the same as if the battery was intentionally committed.</p> <p>7. Evidence—testimony that defendant’s automobile struck another as conclusion. In an action of trespass in the striking of plaintiff by defendant’s automobile, plaintiff’s testimony that defendant’s car struck the one in which she was riding was not a mere conclusion but was admissible as tending to prove a fact.</p> <p>8. Appeal and error-—effect of failure to include in bill of exceptions copy of plat excluded from evidence. Where a copy of the' plat of the locality involved does not appear in the bill of exceptions, the court will not pass upon the propriety of its exclusion from the evidence.</p>

<p>1. Master and servant—issues and proof when injuries resulted from violation of Federal Safety Appliance Act. In an action for injuries received as a result of a violation of the Federal Safety Appliance Act, it is not necessary to allege and prove that the car in question was, at the time of the injury, being used in interstate commerce or that at said particular time defendant and plaintiff were actually engaged in interstate commerce, it being necessary only to allege and prove that defendant was a common carrier engaged at the time in such commerce.</p> <p>2. Master and servant—what required by Federal Safety Appliance Act as to automatic couplers. The Federal Safety Appliance Act makes it an absolute duty of a common carrier engaged in interstate commerce not only to provide automatic couplers, but also to keep them in repair, and it is not sufficient merely to exercise reasonable care to maintain the couplers in operative condition.</p> <p>3. Master and servant—when condition of automatic couplers and due care of plaintiff is question for jury. In an action for personal injuries based upon violation of the Federal Safety Appliance Act, where there was evidence that the cars in question were brought together twice and failed to couple either time, it was a question of fact for the jury whether the car was equipped with automatic couplers which were in such state of repair that the. cars could be coupled by impact without the necessity for plaintiff going between them and whether in doing so he used due care for his own safety.</p>

<p>1. Automobiles and gabages—negligence in driving on left side of highway as question for jury. In this State it is not negligence per se to drive an automobile on the left side of a highway, and whether in a particular case it is negligence to so drive is a question of fact for the jury.</p> <p>2. Negligence—what required of person placed suddenly in peril. While one placed suddenly in peril will not be required to exercise the same amount of care as is required of a person who has ample opportunity for full exercise of- his judgment and reasoning faculties, the same degree of care, i. e., reasonable care, is required.</p> <p>3. Automobiles and gabages—what not authorised ly statute requiring dimming or extinguishing of headlights on meeting vehicle. The provision in the Motor Vehicle Act (Cahill’s Ill. St. ch. 95a, ¶ 17), that a person in charge of a motor vehicle equipped with electric headlights shall dim or extinguish them on meeting another vehicle, will not authorize the driver of an automobile to extinguish all his lights at a considerable distance from an approaching car and then proceed at full speed in the dark.</p> <p>4. Automobiles and gabages—what Motor Vehicle Act requires as to lights. The provisions of the Motor Vehicle Act that every motor vehicle, when upon a highway at night, must carry two white lights visible at least 200 feet and that a vehicle having electric headlights must dim or extinguish them when within 250 feet of a vehicle approaching from the opposite direction, must be construed together, and, after the extinguishment of its headlights, a car can only proceed upon its way when it has two other lights visible at least 200 feet.</p> <p>5. Damages—when instruction in personal injury case is erroneous. An instruction upon the question of damages in a personal injury case, which does not confine the jury to such damages as are claimed in the declaration and shown by the evidence to be the proximate result of the negligence of defendant, is erroneous.</p>

<p>1. Bills and notes—when instrument payable to order is negotiated. Where a negotiable instrument is payable to order, it is negotiated by the indorsement of the holder, completed by delivery (Cahill’s Ill. St. ch. 98, ¶ 50).</p> <p>2. Bills and notes—what constitutes valid indorsement of note made to joint payees. To constitute a valid indorsement of a promissory note payable to the order of two or more payees who are not partners, all must indorse unless the one indorsing has authority to indorse for the others (Cahill’s Ill. St. ch. 98, ¶ 61).</p> <p>3. Pleading—taking averment as true on demurrer. A declaration upon a promissory note, payable to several payees, in which it is averred that the single indorser was authorized by the payees to transfer the note as it was transferred, must be taken as true upon demurrer.</p> <p>4. Bills and notes—sufficiency of averments in declaration. Under Cahill's Ill. St. ch. 98, ¶ 69, even if the indorsement by one of several payees of a promissory note is not sufficient as an indorsement on behalf of the others, averments in a declaration in a suit against the indorsing payee that defendant, being authorized by the payees to transfer the note, transferred it to plaintiff for a valuable consideration, are sufficient to show that plaintiff, as against defendant, had sufficient title to the note to authorize him to maintain the suit in his own name.</p> <p>5. Bills and notes—iohen person signing note held to he in-' dorser. Under Cahill’s Ill. St. ch. 98, ¶ 83, one who placed his name upon a promissory note, not as maker, drawer or acceptor, must be held to have done so as an indorser, where he did not clearly indicate his intention to be bound in some other capacity.</p> <p>6. Pleading—what necessary in declaration. All that is now necessary in a declaration is a clear and concise statement, couched in simple language, of sufficient ultimate facts to show a liability on the part of defendant to plaintiff.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. T. M. Habéis,-Judge, presiding. Heard in this court at the October term, 1921. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Sales—when purchaser cannot recover from vendor amount paid to third person. If a consignment of goods were a part of the stock of goods sold in bulk without compliance with the Bulk Sales Law, any suit which the creditor could have brought against the purchaser of the stock would have availed nothing, and such purchaser was not authorized to pay the bill therefor and could not recover the amount so paid from his vendor.</p> <p>2. Fraudulent conveyances—validity of sale of stock of goods without compliance of Bulk Sales Act. Under the Bulk Sales Act (Cahill’s Ill. St. ch. 121a, ¶ 1), a sale of a stock of goods without compliance therewith is void as against creditors but is good as between the parties.</p> <p>3. Fraudulent conveyances—rights of creditor and liability of vendee under Bulk Sales Act. The Bulk Sales Act (Cahill’s Ill. St. ch. 121a, ¶¶ 1-3) gives a creditor no lien upon nor title to goods and creates no liability from the vendee of a stock of goods to a creditor of the vendor.</p> <p>4. Instructions—instruction assuming controverted fact as erroneous. An instruction which assumes a controverted fact is erroneous.</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1921. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Wills—what is paramount rule of construction. In construing a will, the paramount rule is to. ascertain, from the language of the will, the intention of the testator by comparing all the parts of the whole, will with each other, construing them, if possible, so that all can stand, and then to give effect to such intent, if it can be done without violating some rule of law.</p> <p>2. Wills—when corporate stock bought by executors not included in! bequest. Where the widow of testator was bequeathed a life estate in all of the telephone stock which testator owned at the time of his death, stock bought by his executors which his previously owned sliares entitled him to purchase upon a reorganization and consolidation of the companies in which he held stock, was not included' in such bequest and was subject to sale for the payment of debts.</p> <p>3. Wills—when remainder in corporate stock is property "not specifically bequeathed.” Where a life interest in corporate stock was bequeathed to the widow of testator but no specific bequest was made of the remainder therein, such remainder was property “not specifically bequeathed,” within the meaning of a clause providing for turning such property into cash for the payment of debts.</p> <p>4. Executors and administrators—lohat proper decree as to application of property to debts. Where an estate consisted of corporate stock in which the widow was bequeathed a life estate, corporate stock in which no life estate was given, and lands, held that a decree, looking to the payment of debts, should provide for the sale, first, of the corporate stock in which no life estate was bequeathed, and second, the remainder interest in the other corporate stock, and, if a deficit still existed, for resort to the income from, the lands specifically devised in accordance with a provision of the will.</p>

<p>Trusts—when executors of transferor of corporate stock not estopped to allege trust. Where the owner of corporate stock transferred certain shares thereof to another for the purpose of enabling such other to take the owner’s place as a director in the company, such transfer being made under a written agreement by which the transferee agreed to transfer such stock back to the transferor and to resign as director upon request, a contract subsequently made between the transferor and other stockholders with reference to the pooling, voting, handling and future disposition of the shares owned by the parties, in which it was recited that the transferee “is the owner of 50 shares of the capital stock of said corporation,” did not estop the executors of the transferor from asserting that the transfer was made in trust.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Appeal from the Circuit Court of Piatt county; the Hon. Geoboe A. Sentel, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>Error to the County Court of DeWitt county; the Hon. John Bedinger, Judge, presiding. Heard in this6 court at the October term, 1920.</p>

<p>Appeal from the Circuit Court of Sangqmon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>1. Executors and administrators—when suit by executrix is not suit to quiet title. A suit, brought under section 111a of the Act relating to sales of real estate by persons since deceased and the enforcement thereof (Cahill’s Ill. St. ch. 3, ¶ 113), by the executrix of a deceased grantor under a land contract against the grantee and others claiming under the grantor, is not a suit to quiet title which could be brought only by one in possession of the land.</p> <p>2. Appeal and error—presumption in absence of certificate of evidence. Upon appeal from a decree in a suit involving appellant’s rights under a land contract, where appellant has not filed a certificate of the evidence, it must be presumed that there was sufficient evidence to warrant the court in finding that certain interest was due from him.</p> <p>3. Executors and administrators—decree in suit by executrix. In a suit by an executrix against the grantee under a land contract made with deceased, and another claiming title to the land under a prior deed from grantor which had been lost, a provision of the decree requiring the grantee to accept a deed from and to pay the balance due under the contract to such claimant was not subject to the objection that it required the grantee to accept such deed without regard to whether such claimant had a merchantable title, where the suit involved the rights of such claimant in the premises and the court found that she had title thereto in fee simple.</p> <p>4. Appeal and error—right of party to take position different from, that taken in trial court. Where the grantee under a land contract in a suit involving the question as to who had the legal title to the land did not controvert, in the trial court, his liability to pay the balance due for a conveyance by warranty deed by the party whom the court should find could make a proper conveyance of the legal title, he could not, on appeal, contend that he should not pay the balance due to and accept title from the person found by the trial court to have the legal title.</p>

<p>Appeal from the Circuit Court , of Peoria county; the Hon. John M. Niehahs, Judge, presiding. Heard in this court at the October term, 1921.</p>

<p>1. Injunction—when appeal is from entire order refusing to dissolve and modifying temporary writ. Where an order refusing to dissolve a temporary writ of injunction and modifying such writ was all a part of one order and the exceptions taken and the appeal prayed were as “to the entry of which order overruling said motion to dissolve and vacate said injunctional order,” the appeal was from the entire order.</p> <p>2. Injunction—when suit in foreign State not enjoined in favor of heir or devisee. The courts of this State have no power to enjoin a suit in another State to enable an heir or devisee living here to avoid a distribution of assets in the foreign jurisdiction and to bring such assets into this State for distribution merely that such heir or devisee may profit by such transfer, where the effect of such decree would be to decrease the shares of other devisees, "would take the fund from the depositary agreed upon by the parties, and would result in the resort to a different method of determining the value of lands and securities from that agreed upon by the parties, and where appellants would not have the power to comply with the order by withdrawing the securities from the depositary in the other State.</p> <p>3. Injunction—when court mil not restrain prosecution of suit in foreign jurisdiction. A court of equity will not restrain the prosecution of a suit in a foreign jurisdiction unless a clear equity is presented, requiring the interposition of the court to prevent a manifest wrong and injustice, it being insufficient that there may be reason to anticipate that the courts of the other State will arrive at a different judgment from that of the courts at the residence of the parties, j</p> <p>4. Injunction—bringing of action in foreign State because of better remedy not ground for injunction. It is not inequitable and ground for an injunction that a person brings his action in a foreign State on account of the better remedy there obtainable.</p> <p>5. Injunction—what not presumed for purpose of enjoining prosecution of action in foreign State. It cannot be presumed, for the purpose of enjoining a person from prosecuting an action in a foreign State, that the court of such other State will not do justice between the parties and give effect to the rules of law applicable to the case.</p>

<p>1. Coubts—priority of jurisdiction of courts in which suits brought. A bill filed by a widow to compel the completion by defendant of a contract to purchase land which was made with her husband in his lifetime and alleging that a certain bank as the trustee had failed to bring proceedings to compel completion of such contract, the bank and all the heirs, devisees and legatees being made parties, together with a cross-bill filed by the bank, held insufficient to include anything but the specific performance of the contract and not to give the court jurisdiction over matters pertaining to the estate generally so as to give the court prior jurisdiction as to such matters over the court of another county in which a prior suit was brought by beneficiaries under the will for an accounting by the trustee and asking that the circuit court take over the administration of the estate, and praying for an injunction restraining the widow from interfering with the possession, control and custody of the property of the estate and from prosecuting any suits to recover such possession and control.</p> <p>2. Injunction—when courts of this State should not interfere with pending litigation in sister States. The courts of this State should not interfere with pending litigation in sister States when some of the parties are not residents of this State and have not heen personally served with process of our courts nor submitted themselves to the jurisdiction thereof.</p> <p>3. Equity—ichat relief may he granted under general prayer. The relief which may be granted under the general prayer of a bill in equity must be such as the complainant may be found entitled to under the allegations of fact made in the bill and the proof in support thereof.</p> <p>4. Action—effect of consolidation of suits. Where several bills brought in McHenry county involving certain phases of the controversy between the widow and the beneficiaries under a will were not, separate ■ or taken together, sufficiently comprehensive to cover the relief sought by a bill brought in Kane county which prayed for an injunction, the consolidation of such suits with a suit to enjoin the parties from moving in the Kane county suit and from commencing further suits in the State would not have the effect of depriving the court of Kane county of the jurisdiction in the matter which it acquired by the prior suit commenced therein.</p> <p>5. Injunction—what not ground for restraining hearing of an questions properly arising under hill sought. That a bill filed in one county seeks to take over the entire administration of an estate and to prevent the courts of another county from administering thereon is no ground for restraining the court in which such bill was filed from hearing all questions which can properly arise under the bill.</p> <p>6. Courts—power of one circuit court to supervise judgments and decrees of another. The circuit court of one county in this State has no power to supervise the judgments and decrees of circuit court of another county.</p> <p>7. Injunction—when one circuit court cannot enjoin another from proceeding with hearing of suit. Where the circuit court of one county acquired jurisdiction of the parties and the subject-matter of a suit before the filing of a bill in another county, it cannot be enjoined by the court of the latter county from proceeding with the hearing of such suit.</p> <p>8. Cemeteries—fee title to lot as remaining in original grantors. The fee title to a lot in a public cemetery remains in the original grantors, the holder of the lot acquiring no interest in such fee.</p> <p>9. Trusts—venue of suit for settlement of trust. Where a demand for a settlement of a trust forms the basis of a suit, it is properly brought against the trustee where it resides and has its principal office although none of the real estate involved is there situated.</p> <p>10. Tbusts—formal order of transfer of funds1 not necessary when executor becomes trustee. Where the duties of an executor are completed and his duties as trustee begin, he holds'the funds as trustee and not as executor and no formal order of transfer from the executor to the trustee is necessary.</p> <p>11. Tbusts—county court as without power to remove trustee. The constitution of this State gives no power to county courts in the management of trust estates and such a court has no power to remove a trustee.</p> <p>12. Executobs and administbatobs—county court as without power to remove executor having duties as trustee. Where the powers and duties of a truptee and executor are so intermingled that the removal of the executor would operate as a removal of the trustee, the county court would bé powerless to remove the executor because of his duties as trustee and, therefore, resort must be had to a court of equity.</p> <p>13. .Wills—renunciation of will by widow as having no extra territorial force. While the renunciation of the will by a widow will operate to give her one-half of the real and personal property in this State after the payment of testator’s debts, such renunciation will have no extraterritorial force.</p> <p>14. Wills—right of residuary legatees to resist mdow’s attempts to obtain estate. It is neither fraudulent nor unlawful for residuary legatees of an estate to resist diligently .every effort of the widow to get all she claims she is entitled to out of the property belonging to the estate and located in another State and to resist her efforts to so modify the terms of a trading agreement as to such property that existed between her husband and another as would give' her benefits at the expense of themselves and other devisees.</p> <p>15. Executobs and administbatobs-—priority of jurisdiction of courts in which suits brought. A suit in equity, begun in on.e county by the beneficiaries under a will against the trustee bank which was located in that county, asking for an accounting and that the court take over the administration of the estate and praying for an injunction restraining the widow from interfering with the estate, gave the court of that county jurisdiction as against the court of the county in which testator lived and died and in which his estate proper was being administered and in which a suit by the widow subsequently was brought to restrain the court of the first county from proceeding in the matter.</p>

<p>1. Executors and administrators—when claimant has burden of proving making and delivery of notes by testatrix. In a suit against an estate upon promissory notes purporting to be signed by testatrix where the executor was, after the case had been called for trial, allowed to file an affidavit under section 52 of the Practice Act (Cahill’s Ill. St. ch. 110, ¶ 52), denying that the notes were executed by testatrix, the burden of proof was cast upon claimant to show the making and delivery of the notes.</p> <p>2. Witnesses—when testimony by claimant against deceased's estate not admissible. Testimony by a claimant against an estate on promissory notes purporting to have been executed by testatrix that she had had the notes in her possession ever since the death of testatrix was not admissible as concerning matters occurring after the death of testatrix, within the exception of section 2 of the Evidence Act (Cahill’s Ill. St. ch. 51, ¶ 2), the obvious purpose of such testimony being to create an inference of delivery of such notes to claimant during the lifetime of testatrix.</p> <p>3. Trial-—when motion for directed verdict against claimant against deceased’s estate should be allowed. Where the only evidence of the execution and delivery of promissory notes forming the sole basis of a claim against an estate was incompetent testimony of claimant that she had been in possession of such notes ever since the death of testatrix, a motion for a directed verdict against claimant should have been allowed.</p> <p>4. Executors and administrators—lohen instruction in action on claim is erroneous. An instruction given on behalf of a claimant against an estate upon promissory notes that, if the jury should find that the signatures to the notes were the true and genuine signatures of testatrix, it would be their duty to find in favor of claimant, was erroneous because it ignored the question of delivery which was made an issue by the affidavit of defense.</p> <p>5. Executors and administrators—when instruction in action on claim is erroneous. An instruction, given on behalf of a claimant against an estate upon promissory notes purporting to be signed by testatrix, that mere possession of the notes was prima facie evidence that claimant was the owner thereof and that the same were unpaid was erroneous where an affidavit had been filed denying the execution and delivery of the notes.</p> <p>6. Bxectjtobs and administkatobs—when testimony in action on claim is irrelevant and immaterial. Where a daughter, making a claim against the estate of her mother, had failed to sustain the burden of proof as to the execution and delivery of the notes upon which the claim was based, testimony offered consisting of family history, declarations alleged to have been made by the deceased as to her debts, and evidence of an alleged gift of money to another daughter, was irrelevant and immaterial.</p>

<p>Error to the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1921.</p>

<p>1. Mortgages—admissibility of parol evidence m ascertaining whether conveyance is deed or mortgage. In determining whether an instrument in the form of' a conveyance is a deed or a mortgage, the courts first look to the intention of the parties, and in ascertaining this intention not only will the writings themselves be examined but parol evidence is admissible.</p> <p>2. Mortgages—deed as not made mortgage by contemporaneous execution of written contract. The mere fact that a written contract was executed at the same time as a deed does not necessarily make the deed a mortgage.</p> <p>3. Mortgages—when conveyance construed as mortgage. If the entire debt which was the consideration for a conveyance was canceled and all the evidence of the debt surrendered, the writing will generally be construed as an absolute conveyance; but if the debt is not canceled and the deed and contract are security for the continuing debt, the instruments will be construed as a mortgage.</p> <p>4. Mortgages—who has burden of proving' absolute deed to be mortgage. As a general rule, the burden of proof is upon the party who seeks to have an absolute deed construed as a mortgage.</p> <p>5. Mortgages—degree of proof required to show warranty deed to be mortgage. W-here land is conveyed by a warranty deed and there is no defeasance either in the deed or a collateral writing and parol evidence is resorted to for the purpose of establishing that the deed was given as a mortgage, such evidence must be clear and convincing to overcome the presumption that the deed is what it purports to be.</p> <p>6. Mortgages-—when instruments will be construed as mortgage. Where there is a conveyance by deed and a defeasance in a collateral writing or contract for resale and the evidence leaves no doubt that the transaction was intended as a conditional sale or mortgage, the instruments will be construed as a mortgage and all doubts ’frill be resolved in favor of such a construction.</p> <p>7. Mortgages—use of word “redeem” in collateral contract as negativing idea of absolute sale. The use of the word “redeem” in a contract made collaterally with a deed of land implies the existence of a debt and negatives the idea of an absolute sale.</p> <p>8. Mortgages—sufficiency of evidence that deed and contract were given as security for debt. A deed of conveyance absolute in form and a contract made collaterally thereto between the parties, together with all the other evidence, examined and held to show that the deed and contract were given merely as security for a debt and not as an absolute conveyance of real estate.</p> <p>9. Mortgages—continuance of original mortgage character of deed. Every deed takes effect from delivery, its character being fixed at that time, and if it is then a mortgage it continues to be such until the right of redemption is barred by one of the modes recognized by law.</p> <p>10. Mortgages—what stipulation does not change mortgage effect of deed. Where a deed, absolute "in form, is given and intended as a mortgage, its legal effect is not changed by an express stipulation of the parties that the title of the grantee shall become absolute and unredeemable on failure of the grantor to pay the debt secured on the day fixed for such payment as no effect will be given to such agreement, it being beyond the power of tile parties thus to avoid the necessity for a foreclosure or to restrict the right of redemption.</p> <p>11. Appeal and error—presumption that no improper evidence was considered. Where a hearing upon a bill to have a warranty deed declared a mortgage was had before the master and the court, the presumption is that no improper evidence was considered on the final determination of the case.</p> <p>12. Appeal and error—harmless error in admission of evidence. If there was sufficient proper evidence offered on a hearing before the master and the court upon a bill to' have a warranty deed declared a mortgage, there could be no injury by reason of the fact that improper evidence was admitted.</p>