text:
    Florence M. Hazard, Appellee, v. Nathaniel T. Hazard, Administrator, Appellant.
    Gen. No. 21,826.
    1. Divorce, § 93

      —what is basis for right to alimony. The right of a wife to alimony depends on the existence of a valid marital relation between the parties.
    2. Divorce, § 113

      —when right to alimony ceases. If the marital relation is broken by the death of the husband, the wife’s right to alimony ceases.
    3. Divorce, § 93

      —when suit for alimony not maintainable. If the marital relation is dissolved by a decree of divorce, the former wife cannot maintain a suit for alimony.
    4. Divorce, § 135

      —what is basis for order for solicitor’s fees. An order for solicitor’s fees to a wife must rest primarily on the existence of the relation of husband and wife, and unless the parties sustain that relation there is no basis for the order.
    5. Marriage, § 29

      —when allowance to maintain suit to annul marriage denied. In an action brought by the wife to annul a marriage for a cause going to the original legality of the marriage, her allegations will be taken against her as true, and an allowance to her to maintain the action will be denied.
    6. Divorce, § 135

      -—when allowance to maintain proceeding to set aside decree of divorce improper. An allowance cannot be made to a wife to maintain a proceeding to set aside and vacate a decree of divorce valid on its face.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1915.
    Order reversed.
    Opinion filed January 31, 1916.
    Albert Chandler, C. M. Clay Buntain and Clayton W. Mogg, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.

William Hazard filed in the Circuit Court September 26, 1910, a bill for divorce against his wife, the appellee here, on the ground of desertion. Service was had by publication. Defendant was defaulted and December 3, 1910, a decree was entered dissolving the bonds of matrimony between the complainant and. defendant in that suit. December 8,1914, appellee filed a bill of review in the Circuit Court, alleging that William Hazard died February 3, 1914, and making the appellant here, the administrator of his estate, the defendant. January 14, 1915, the court entered an order directing that defendant as administrator of William Hazard pay complainant fifty dollars per month as alimony pendente lite and seventy-five dollars on account of her solicitor’s fees.

Counsel for appellant have favored us with an exhaustive and able brief and argument. Two grounds of reversal are urged: First, that the marriage relation had been dissolved by a decree of divorce granted to the husband, and therefore the former wife could not be awarded alimony pendente lite; and second, that the marital relation, if not dissolved by the decree of divorce, was dissolved by the death of the husband, and with his death the wife’s right to alimony ceases.

The right to alimony depends on the existence of a valid marital relation between complainant and defendant. McKenna v. McKenna, 70 Ill. App. 344; Lennahan v. O’Keefe, 107 Ill. 620.

In the case last cited, Mr. Justice Schofield said:

“By the English law, alimony was but an allowance during the joint lives of the husband and wife, or so long as they should live separately. (Wallingford v. Wallingford, 6 Harris & Johnson, 438; Lockridge v. Lockridge, 3 Dana, 28; Clark v. Clark, 6 Watts & S. 85; 1 Blackstone’s Com. 441.) And, notwithstanding alimony in this country is, generally, the allowance made to the wife out of the husband’s estate after a decree of divorce a vinculo matrimonii, and is, by statute, in many respects modified from what it was in case of divorce a mensa et thoro, in England, we know of no case in which it has been held to be a debt continuing after the death of the husband against the heir, but directly the contrary was held in O’Hagan v. Executors of O’Hagan, 4 Iowa, 509, and, as we think, upon sufficient reason. Bishop, in his work on Marriage and Divorce, (6th ed.) sec. 428, says: ‘So, by the unwritten rule, alimony can not be ordered for the term of the wife’s life, because it is a maintenance to her, while the husband’s duty to maintain her ceases at his death. ’ ”

If the marital relation is broken by the death of the husband, the wife’s right to alimony ceases. Lennahan v. O’Keefe, supra; Swan v. Harrison, 2 Cold. (42 Tenn.) 534; O’Hagan v. O’Hagan’s Ex’r, 4 Clark (Iowa) 509; Maxwell v. Sawyer, 90 Wis. 352.

'If the marital relation has been dissolved by a decree of divorce, the former wife cannot maintain a suit for alimony. Chapman v. Parsons, 66 W. Va. 307. In Lake v. Lake, 194 N. Y., it was said, page 185:

“An order for solicitor’s fees must primarily rest upon the existence of the relation of husband and wife. Unless that relation is sustained by the parties, there is no basis for the order. Even in an action brought. by the wife to annul a marriage upon a cause which goes to the legality of the marriage originally, the allegations of the wife will be taken against her as true, and an allowance to her to maintain the action will be denied.”

In Wilson v. Wilson, 49 Iowa 544, which was a proceeding to set aside and vacate a decree of divorce, it was held that there was no authority to order the payment of money to carry on the suit in the face of a decree of divorce which seemed to be valid.

The order of June 14, 1915, directing defendant as administrator of the estate of William Hazard to pay complainant, Florence M. Hazard, fifty dollars per month alimony pendente lite and seventy-five dollars as her solicitor’s fees, is reversed.

Order reversed.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Harry W. Kuetemeyer, Administrator, Appellee, v. Illinois Central Railroad Company et al., on appeal of Michigan Central Railroad Company, Appellant.
    Gen. No. 20,899.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed January 31, 1916.
    Statement of the Case.
    Action by Harry W. Kuetemeyer, administrator of the estate of Louis J. Iverson, deceased, plaintiff, against the Hlinois Central Railroad Company et al., defendants, in the Superior Court of Cook county, to recover for personal injuries. From a judgment for plaintiff for $1,000 against defendant Michigan Central Railroad Company, defendant Michigan Central Railroad Company appeals.
    Plaintiff at the time of the accident and for a long time previous thereto, was a painter. At and for some time before the accident he worked for one Ettinger, a contract painter for the Illinois Central Railroad Company, at various places along the road of the Illinois Central. He had been acting for about ten days prior to the accident as foreman of painters on the painting job at which he was working when hurt.
    Plaintiff had been a sailor and was experienced in splicing ropes and erecting scaffolds. On the day of the accident plaintiff was acting as foreman and was engaged in splicing ropes and in constructing a scaffold to be used in painting the train shed of the Illinois Central Company at a place immediately above the stone wall separating the St. Charles Air Line from the station tracks. Two or three feet east of this stone wall were two parallel tracks running north and south, known as the St. Charles Air Line, east of which was a switch yard with thirty or forty tracks, The southbound track of the St. Charles Air Line was within three feet of this stone wall. Along these tracks were run engines of the Pennsylvania, North Western, Burlington, Illinois Central, Michigan Central and other railroads.
    The place where Iverson was working at the time was about three feet higher than the ground. It was a very busy spot. Both freight and passenger trains were constantly running along the St. Charles Air Line tracks. There was nothing at the time of the accident to obstruct the view of Iverson and the other painters of the movement of trains north and south. Engines came along these tracks both with and without cars. The scaffold upon which Iverson was working had been laid upon the wall under his direction. Iverson was struck by an engine running along the southbound track, causing him to fall to the ground. Iverson swore that he was struck by the steps of the engine, which hung over the track about two feet. Iverson also testified that the engine was marked “M. C. 8172.”
    It was undisputed that Iverson was and for several years had been well informed of the operation of engines and cars along the track near which he was working.
    Defendant Michigan Central Railroad Company offered evidence proving conclusively that the engine of defendant marked with this number was not near Chicago at the time of the accident but, as a matter of fact, was being operated between Windsor, Canada, on the east side of the Detroit River, and Buffalo, in the State of New York, on the Canada Southern Division of defendant appellant’s road; and, furthermore, that that engine had never been operated between Michigan City and Chicago.
    At the close of plaintiff’s evidence both defendants moved for an instructed verdict, which the court allowed as to the Illinois Central Bailroad Company, but denied as to the Michigan Central Bailroad Company. The defendant Michigan Central Bailroad Company here again moved, at the close of all the evidence, for an instructed verdict, which was again denied. Plaintiff having died since the entry of judgment, the appeal was defended by the administrator of his estate.
    Abstract of the Decision.
    1. Master and servant, § 438

      —when person struck by engine while painting train shed guilty of contributory negligence. In an action to recover for personal injuries sustained by a painter by being struck by a railroad engine alleged to be owned or controlled by defendant, where it appeared that at the time of the accident plaintiff was engaged in painting a train shed within a short distance of the track along which engines were constantly passing, evidence held to show that at the time of the accident plaintiff was not as a matter of law, in the exercise of due care for his own safety, it appearing that there was nothing which obstructed plaintiff’s view of the track and that if plaintiff had looked he would have seen the approach of the engine, there being no evidence absolving plaintiff from the duty of watching for rolling stock known to be constantly moving along the track.
    2. Negligence, § 204

      —when verdict should be directed because of contributory negligence. Although the question of contributory negligence is usually one of fact, yet where all reasonable minds would agree, either from undisputed facts or from plaintiff’s evidence with reasonable inferences to be drawn therefrom, that plaintiff’s own negligence contributed to his injury, then the question of contributory negligence is a question of law, and the refusal of a peremptory instruction for defendant is reversible error.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Charles J. McFadden, of counsel.
    T. F. Monahan, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

3. Master and servant, § 763 —when verdict properly directed for defendant in action by railroad employee for personal injuries. In an action to recover for personal injuries sustained by a painter by being struck by an engine alleged to have been owned or controlled by defendant, while engaged in painting a train shed within a short distance of the track on which such engine was running, the question of plaintiff’s contributory negligence is one of law requiring a peremptory instruction for defendant, where it appears from plaintiff’s testimony that the engine which struck him was in plain sight as it approached, and that his injury was caused by his failure to look for engines and cars approaching from that direction, there being no allegation of wilful negligence or evidence that any one on the engine knew of plaintiff’s presence in time to have avoided the accident in the exercise of ordinary care.

4. Master and servant, § 681 —when evidence sufficient to establish that defendant did not own or operate engine. In an action against the Michigan Central Railroad Company to recover for personal injuries sustained by being struck by an engine alleged to be owned or controlled and operated by defendant, where defendant pleaded specially denying such ownership or control, and where plaintiff testified that the engine which struck him was marked “M. C. 8172,” evidence held sufficient to support the plea, where it appeared conclusively that the engine of defendant marked as testified by plaintiff was not on or near the place of the accident at the time of such accident, but was in fact being operated on another division of defendant’s road, and running between Windsor, Canada, and Buffalo, New York.


text:
    Henry Meinshausen, trading as German American Oil Company, Defendant in Error, v. American Shipping Company, Plaintiff in Error.
    Gen. No. 21,520.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Rehearing denied February 14, 1916.
    Statement of the Case.
    Action by Henry Meinshausen, trading as the German American Oil Company, plaintiff, against the American Shipping Company, a corporation, defendant, in the Municipal Court of Chicago, to recover back overpayment of insurance premiums. To reverse a judgment for plaintiff for $544.46, defendant prosecutes this writ or error.
    Plaintiff was the resident agent of Botho Farenholtz of Magdeburg, Germany, a manufacturer of oils. Defendant was a custom house' broker, having places of business in New York and Chicago. Plaintiff had charge, as such agent, of consignments of oils shipped by Farenholtz to this country. Defendant, at the instance of plaintiff, did the brokerage business connected with the oils shipped by Farenholtz to Atlantic ports. Plaintiff was paid a commission by Farenholtz on the sale of all such oils. Among plaintiff’s duties as the agent of Farenholtz was the placing of sea and leakage insurance upon the oil shipped by Farenholtz. Plaintiff arranged with defendant to place insurance.
    Defendant was in no way obligated to Farenholtz, its dealings being wholly with plaintiff. To him defendant rendered bills and plaintiff paid them. Farenholtz subsequently reimbursed plaintiff.

      Abstract of the Decision.
    1. Principal and agent, § 8

      —when evidence sufficient to establish that contract was with person individually and not as agent. In an action to recover back the amount of marine insurance premiums overpaid to defendant, evidence held to show .that the contract for insurance was with plaintiff, although it appeared that the goods insured were owned by plaintiff’s principal, it also appearing that the contract sued on was with plaintiff, defendant not being obligated to such principal thereunder, and defendant rendering bills to plaintiff which plaintiff paid, it being immaterial that plaintiff was later reimbursed by such principal for such payments.
    2. Principal and agent, § 220

      —when agent may maintain action to recover overpayments of money. Where a principal through his agent, pays moneys for insurance premiums which ought not to have been paid, the agent may maintain an action to recover it back.
    Silber, Isaacs, Silber & Woley, for plaintiff in error; James D. Woley, of counsel.
    Alexander H. Heyman, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    H. M. Johnson, Receiver, Defendant in Error, v. Thomas Hennessey and Mrs. H. M. Dettmar, Plaintiffs in Error.
    Gen. No. 21,690.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Statement of the Case.
    Action by H. M. Johnson, receiver, plaintiff, against Thomas Hennessey and Mrs. H. M. Dettmar, defendants, in the Municipal Court óf Chicago, to recover for rent due under a written lease. To reverse a judgment entered for plaintiff by confession under power in the lease, defendants prosecute this writ of error.
    Defendants moved on the affidavit of defendant Hennessey to open the judgment and to be let in to defend the action. The affidavit sets forth that the defendant Dettmar was in physical, possession of - the premises leased; that she was “raided” on a charge of maintaining a disorderly house; that plaintiff told Hennessey that tenants in the building complained about the disorderly establishment and compelled her to move; that he, Hennessey, never had any physical possession and signed the lease as guarantor only.
    Benjamin E. Cohen, for plaintiffs in error.
    C. W. Mulfinger, for defendant in error; Deming & Jarrett, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 82 —when motion to open judgment by confession properly denied. A court is not authorized to open a judgment by confession in an action against two defendants to recover rent due under a written lease under which one defendant was lessee and the other guarantor, where the affidavit filed in support of the motion to open shows that at the request of plaintiff defendant guarantor removed defendant lessee from the demised premises for keeping a disorderly house, such facts not being a defense to the action for rent.

2. Landlord and tenant, § 6 —when guarantor of lease regarded as lessee. In an action to recover rent due under a written lease where one defendant executes as lessee and the other as guarantor, the rights of the parties must be admeasured by the lease, and both defendants are, as to plaintiff, lessees thereunder and bound to perform its covenants, including that for payment of rent, although the relation of principal and guarantor may exist as between defendants and lessee may be bound to recompense guarantor for amounts which he may be compelled to pay as such.

3. Landlord and tenant, § 443 —when relation not terminated by act of colessee. Where a lease is executed by one as lessee and by another as guarantor, the relation of landlord and tenant existing by virtue of the lease between lessor and guarantor is not terminated, and such guarantor is not relieved from liability as such by reason of the fact that at the request of lessor guarantor removed lessee from the demised premise», for keeping therein a disorderly house, guarantor being liable to lessor for allowing his cotenant to conduct a disorderly house on the demised premises, and under a duty to suppress such conduct by such cotenant.

4. Contracts, § 164 —when parol evidence not admissible for purpose of construction. Where a written instrument is not ambiguous, parol evidence to construe its terms is incompetent.


text:
    Alfred D. Koenig by David Koenig, Defendant in Error, v. Frank Semrau, Plaintiff in Error.
    Gen. No. 21,739.
    (Not to be reported in full.)
    Error to the Municipal Court oí Chicago; the Hon. Jambs C. Mabtdst, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Statement of the Case.
    Action by Alfred D. Koenig, a minor, by David Koenig’, Ms next friend, plaintiff, against Frank Semran, defendant, in the Municipal Court of Chicago, to recover for personal injuries sustained in a collision between plaintiff’s motorcycle and defendant’s automobile, alleged to have been negligently operated. To reverse a judgment for plaintiff for $400, defendant prosecutes this writ of error.
    John Semrau, a minor and son of defendant, was driving his father’s large touring car, and Alfred D. Koenig was riding- his motorcycle.
    It appeared that John Semrau, who was driving north, suddenly and without giving any warning turned the car, so that he might drive it southward, when Alfred D. Koenig, who was riding south at a reasonable speed, collided with defendant’s car, injuring both himself and his motorcycle. Both sons of defendant who were in the car swore that they looked before John turned, without seeing any vehicle in sight. Koenig was within clear view of the occupants of the car. It was admitted that the street was clear of vehicles, and that there were no obstacles to obstruct the vision of those in the car.
    Royal W. Irwin, for plaintiff in error.
    Peden, Kahn & Murphy, for defendant in error) R. C. Merrick, of counsel.

      Abstract of the Decision.
    1. Automobiles and garages, § 3

      —when evidence sufficient to establish negligence in operation of automobile. In an action to recover for personal injuries sustained as a result of a collision between plaintiff’s motorcycle and defendant's automobile, evidence held to show that the driver of the automobile was negligent, it appearing that the motorcycle and automobile were proceeding in the same direction, and that the collision was caused by the attempt of the driver of the automobile to turn so as to proceed in the opposite direction, obstructing plaintiff, who was riding at a reasonable rate of speed.
    2. Automobiles and garages, § 3

      —when evidence that no vehicle was in sight before automobile turned, of no weight. Evidence of the occupants of an automobile that before starting to turn the car so as to proceed in the opposite direction they looked around without seeing any other vehicle in the vicinity is of no weight, where it is not disputed that at such time a motorcycle was being ridden on the same street in full view from the place where the automobile was when the attempt was made to turn.
    3. Negligence, § 1

      —what constitutes. Where there is nothing to obstruct vision it is negligence not to see what is clearly visible.
    4. Damages, § 129

      —when verdict not excessive. In an action to recover for injuries sustained by reason of a collision between plaintiff's motorcycle and defendant’s automobile, where damages were claimed both for personal injuries and injuries to the motorcycle, a verdict for plaintiff for $400 held not excessive, it appearing that plaintiff’s right arm was fractured in two places, and that it cost $99.50 to repair the motorcycle.
    5. Automobiles and garages, § 3

      —when evidence sufficient to sustain verdict. In an action to recover for personal injuries sustained as a result of a collision between plaintiff’s motorcycle and defendant’s automobile as the result of the attempt of the driver of the automobile, suddenly and without warning, to turn and proceed in the opposite direction, such automobile prior to the attempt to turn having proceeded in the same direction as plaintiff, a verdict for plaintiff held supported by a preponderance of the evidence.
    6. Costs, § 73

      —when expense of additional abstract taxable. Where the abstract filed by appellant is insufficient, it is proper to tax as part of the costs the expense of an additional abstract filed, by appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Illinois Glass Company, Defendant in Error, v. Ozell Company, Plaintiff in Error.
    Gen. No. 21,765.
    1. Sales, § 153

      —wliat constitutes acceptance of goods. Payment for goods after retaining them after delivery a sufficient length of time to examine them constitutes in law an acceptance, and makes the goods the property of the vendee.
    2. Sales, § 108

      —when buyer may not rescind contract. A vendee who, by the sale of some of the goods, has- put it out of his power to restore them to vendor cannot rescind the contract of sale, since a contract can only be rescinded in toto.

    3. Set-off and recoupment, § 17

      —when unliquidated damages may not be counterclaimed. Unliquidated damages cannot be counterclaimed in an action based on a transaction separate and distinct from the transaction which is the basis of the counterclaim, and where neither transaction grew out of nor is related to the other.
    4. Damages, § 81

      —what constitute unliquidated damages. Damages for defects in bottles sold and delivered in pursuance of a contract are unliquidated, and cannot be made liquidated by an arbitrary method of calculation.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the December, term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Deming & Jarrett and Rayburn & Buck, for plaintiff in error.
    Culver, Andrews, King & Cook, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

This review is sought by defendant from a judgment against it in favor of plaintiff for $918.02.

The parties, as shown by the record, had two transactions, in both of which plaintiff was the seller and defendant the purchaser. The commodities sold were bottles. The amount due for the first sale was paid, that for the second is unpaid, and to enforce its payment this suit was commenced. In this suit defendant has counterclaimed for damages alleged to have been sustained by reason of defects in the bottles sold and paid for, a large quantity of which defendant endeavored to return to plaintiff.

There is no controversy concerning the amount due plaintiff for the bottles involved in this suit. The whole controversy hinges on defendant’s counterclaim, amounting to $532.69, which it asks to have deducted from plaintiff’s claim. Defendant sent plaintiff the difference between plaintiff’s claim and defendant’s counterclaim, which plaintiff refused to accept and returned. Plaintiff resists defendant’s counterclaim on two grounds:

First. That a contract, if disaffirmed, must be dis-affirmed in toto; that such contract cannot be affirmed as to part and rescinded as to part. In other words, the party rescinding must restore the status quo.

Second. That the damages claimed by defendant are unliquidated and can, in no event, be set off in this action.

With these contentions we are inclined to agree.

Defendant paid for the first purchase of bottles after having had them for more than a sufficient time to examine them, which fact constituted in law an acceptance. By so doing defendant made the bottles its own. Moreover, it used a very substantial part of them and thereby put it out of its power to restore them to plaintiff by the rescission of the contract under which they were purchased. As defendant could

not rescind the contract in toto, it could not rescind it at all. Waukesha Canning Co. v. Henry Horner & Co., 138 Ill. App. 564.

The claim and counterclaim were separate and distinct transactions. Neither in any way grew out of or was related to the other. The damages sought to be set off in the counterclaim are in no wise liquidated; neither are they made so by defendant’s suggested arbitrary method of calculating its damages. This case on fact and principle comes within the ruling in Turnbull Joice Lumber Co. v. Chicago Lumber & Coal Co., 152 Ill. App. 347, where the court say, as we say here: “We think the defendant’s claim is for unliquidated damages as defined in Higbie v. Rust, 211 Ill. 333; Horn v. Noble, 95 Ill. App. 99; Smith v. Billings, 62 Ill. App. 77.”

There being no error in the record, the judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    The People of the State of Illinois, Defendant in Error, v. Harry Davis, Plaintiff in Error.
    Gen. No. 21,072.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Criminal law, § 505

      —when not presumed that court did not order entry of plea of not guilty. In a prosecution charging defendant with attempt to commit larceny, where the record shows that defendant refused to be arraigned, but the record appears on its face not to be a complete record, the court will not presume that on defendant’s refusal to be arraigned the court did not order the entry of a plea of not guilty or that such plea was not in fact entered.
    2. Criminal law, § 497

      —when every presumption in favor of judgment upon review. Where the record on review in a criminal case is on its face fragmentary and incomplete, the judgment reviewed will he supported by every reasonable intendment and presumption.

      Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 1, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Harry Davis, defendant, in the Municipal Court of Chicago, charging defendant with an attempt to commit larceny. To reverse a judgment of conviction with sentence of confinement for six months in the House of Correction, defendant prosecutes this writ of error.
    Claude F. Smith and Otto Wadewitz, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

3. Criminal law, § 444 —when HU of exceptions need not contain plea of not guilty. On review of a judgment pf conviction in a criminal case, it is immaterial that the bill of exceptions does not show that a plea of not guilty was entered by or for defendant, since the place where such plea should appear is the common-law record and not the bill of exceptions.

4. Criminal law, § 444 —what is office of bill of exceptions. The use of a bill of exceptions in a criminal case is not to embrace in it matters of record, but to make a part of the record matters which otherwise would not be such.


text:
    Philomina V. Shanklin, Plaintiff in Error, v. William Kamin, Defendant in Error.
    Gen. No. 21,129.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and judgment here with finding of facts.
    Opinion filed February 1, 1916.
    Statement of the Case.
    Action by PMlomina V. Shanklin, plaintiff, against William Kamin, defendant, in the Municipal Court of Chicago, to recover back money deposited as security for the faithful performance of the covenants of a lease. To reverse a judgment for defendant, plaintiff prosecutes this writ of error.
    The defendant leased to plaintiff the store and basement of premises known as 1391 Milwaukee avenue, to be occupied as a theater, from July 1, 1910, until April 30, 1913. Plaintiff agreed to pay as rent $5,100, in monthly instalments of $150, except the last three months, which sum of $450 had been paid as security.

      Abstract of the Decision.
    1. Landlord and tenant, § 330

      —when judgment for landlord in action by tenant to recover deposit improper. In an action to recover back money deposited to secure faithful performance of a lease which plaintiff abandoned before the end of the term, where defendant’s amended affidavit of merits alleged such abandonment and that defendant “has considered and treated said abandonment by plaintiff and her failure to pay rent as a termination of the tenancy and cancellation of the lease,” a judgment for defendant is erroneous where it appears that the amount deposited was $450 and the amount owed to defendant by plaintiff at the time of such abandonment was $150, the proper judgment in such case being for plaintiff for $300.

      The seventh clause provided that: If plaintiff should abandon or vacate the premises, they might be relet by defendant for such rent and upon such terms as he might see fit; and if a sufficient sum should not be realized, after paying the expenses of such reletting and collecting, to satisfy the rent reserved, plaintiff would satisfy and pay all deficiency.
    It appeared that plaintiff vacated the premises on the last Sunday in May, 1911 owing defendant $150, as rent for the month of May, 1911.
    After the close of all the evidence and before a finding, the defendant asked and obtained leave to file and did file an amended affidavit of merits, in which he alleged in part that plaintiff had abandoned said premises; that defendant “has considered and treated said abandonment by plaintiff and her failure to pay rent as a termination of the tenancy and cancellation of the lease, and has made efforts to re-rent the premises to other parties and did so in his own name as owner;” and that in finding new tenants and negotiating new leases he expended time and effort and paid attorney’s fees, etc.
    The action was tried by the court without a jury. No further evidence was heard after the filing of defendant’s amended affidavit of merits, and the court found the issues for defendant.
    Auden, Latham & Young, for plaintiff in error.
    Darrow, Bailey & Sissman, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

2. Landlord and tenant, § 326*—when question of cancellation of lease and termination of tenancy one of fact. The question whether a lease has been canceled and tenancy thereunder terminated is one of fact.

3. Landlord and tenant, § 274a*—when rights of parties as to deposit fixed as of date of cancellation of lease. Where money is deposited to secure the faithful performance of the covenants of a lease, and the lease is canceled and determined prior to the expiration of its term, the rights of the parties as to the amount deposited are fixed as of the date of such cancellation, and lessor can resort to such deposit only to satisfy rent due or loss accrued at such time.


text:
    James Monahan, Defendant in Error, v. W. O. Johnson, Receiver, Plaintiff in Error.
    Gen. No. 21,179.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. William B.
    Schofield, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Reversed with finding of facts.
    Opinion filed February 1, 1916.
    Statement of the Case.
    Action by James Monahan, plaintiff, against W. 0. Johnson, receiver of the Chicago & Milwaukee Electric Railroad Company, defendant, to recover for personal injuries sustained in a collision between defendant’s train and the dump cart on which plaintiff was riding when injured. To reverse a judgment for plaintiff for $2,500, defendant prosecutes this writ of error.
    The declaration consisted of three counts. The first alleged, in substance, that on July 31,1911, the defendant was in possession and control of and operating an electric railway running through Glencoe; that on said day the defendant was then propelling an electric car in a southerly direction at or near where the tracks intersected a public street, known as Scott avenue; that plaintiff was driving a team of horses and wagon on that street and across the tracks, and while he was in the exercise of ordinary care for his own safety the defendant so negligently managed the car that it ran into and struck plaintiff and the wagon, and plaintiff was thrown to the ground and was severely injured, etc. The second count set up an ordinance of the village requiring gates to be operated at the crossing and charged that defendant’s negligent violation of the ordinance caused plaintiff’s injury. The third count set up an ordinance limiting the speed of trains to twelve miles per hour and charged the negligent violation thereof by defendant, etc. A plea of the general issue was filed, also a plea denying possession or operation by defendant. The evidence tended to show a violation of both ordinances, no gates being maintained or operated at the crossing, and that the speed of the car immediately prior to the collision was greater than twelve miles per hour.
    It appears that Scott avenue, on the easterly side of the two parallel tracks of the railroad, runs in a north and south direction; and that the tracks run northwesterly and southeasterly, so that • one approaching the tracks on Scott avenue from the north crosses the tracks diagonally. Northbound cars were run on the east track and southbound cars on the west track. On the westerly side of the tracks there is a turn in Scott avenue towards the west, and the street crosses the tracks of the Chicago & Northwestern Railroad Company substantially at right angles, which last named tracks are about seventy-five feet distant from the electric railroad tracks and run practically parallel therewith. For about three months prior to the accident plaintiff was employed as a teamster. He was about fifty-eight years of age and his hearing and eyesight were good. During the period of his employment he went over this crossing many times and was thoroughly familiar with it, and knew that the railroad company ran both express and local trains and that “ express trains ran faster than the local trains.” The accident happened about 1 p. m., July 31, 1911. It was a bright, clear day. The wagon was an ordinary dump wagon with no coverings over or around the seat. Plaintiff testified that as he approached the tracks from the north he was driving his team at a walk in the center of the road; that when about ten feet frpm the east track he stopped and looked both ways; that when he then looked north he could only see about seventy-five feet up the west track and that he did not see any car or hear any whistle, and then started to cross and “kept looking all the time;” that when the horses were on the west track and the wagon on the east track he first saw the car; that it was then “right up against” him and that it struck the front wheel of the wagon, and that he knew nothing after that until he was helped upstairs to a doctor’s office in Winnetka. It further appeared from the evidence that the train was an express train; that when it stopped, the rear end of the rear car was about in the center of the street. It appeared a person in the center of Scott avenue at a point nineteen feet east of said east track could see a car approaching from the north on the west track five hundred feet away, and that as a person moves nearer he can see a car at a greater distance. Several of plaintiff’s witnesses testified as to the speed of the train and to not hearing any whistle immediately prior to the collision.
    Defendant called as witnesses the motorman of the train which struck plaintiff, three of the passengers in the first car, and a young woman who was standing at some distance waiting for a car. It appeared that plaintiff was plainly seen from the train at a distance of from one hundred and fifty to two hundred feet, at which distance the motorman repeatedly blew the whistle, hut, plaintiff paying no attention, started to stop the train. The witness who was waiting for a car testified that she called to plaintiff but plaintiff paid no attention, seeming to be asleep. This witness testified that plaintiff did not stop at any time or look up and down the track.
    Bull & Johnson, for plaintiff in error.
    Richard J. Finn, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Inteburban railroads, § 4 —when person driving team over crossing guilty of contributory negligence. In an action to recover for injuries sustained hy being struck by defendant’s electric train while driving a dump cart across a crossing, where plaintiff just before reaching the crossing had an unobstructed view of the track for five hundred feet in the direction from which the train came, the accident occurring at about Í p. m. on a clear day, there being also evidence that plaintiff was plainly seen from the train at a distance of two hundred feet before reaching the crossing, held that plaintiff was guilty of contributory negligence proximately contributing to his injury, although plaintiff testified that before starting to drive across the track he stopped and looked, seeing no train, since if plaintiff looked as he testified he must have seen the train.

2. Intertjbban railroads, § 4 —when failure to look and listen at crossing precludes recovery. It is the duty of one approaching an interurban railroad crossing on a highway to look and listen for approaching trains if a reasonably prudent person so situated would have looked and listened, and, under such conditions, failure to look and listen will preclude recovery where by looking and listening the injury would have been prevented, unless there were circumstances justifying such failure or unless the view was obstrvfcted.

3. Interurban railroads, § 4 —when evidence that person before crossing track looked and did not see train, of no weight. A plaintiff in an action for personal injuries is not allowed to testify that he looked before starting to cross an interiirban railroad track and saw no train where the view was unobstructed and where, if he had properly exercised his sense of sight, he must have seen the train.

McGoorty, J., dissenting.


text:
    William H. Selle, Defendant in Error, v. Bernhard Rosenstiel, Plaintiff in Error.
    Gen. No. 21,199.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 1, 1916.
    Rehearing denied February 11, 1916.
    Statement of the Case.
    Action for malicious prosecution by William H. Selle, plaintiff, against Bernhard Rosenstiel, and Abraham Stiefel, and Ed. Rosenstiel, son of Bernhard Rosenstiel, defendants, in the Municipal Court of Chicago. The jury found Abraham Stiefel not guilty and the two Rosenstiels guilty, and assessed plaintiff’s damages at $1,000. Subsequently, on plaintiff’s motion, the writ was dismissed as to Ed. Rosenstiel. Judgment was rendered against Bernhard Rosenstiel for $1,000, to reverse which he prosecutes this writ of error.
    Plaintiff alleged in his second amended statement of claim, in substance, that on July 9, 1913, the defendants in pursuance of a conspiracy went to a store in Chicago where plaintiff was employed and assaulted and maltreated plaintiff; and on July 10, 1913, the defendants, conspiring and maliciously intending to injure plaintiff, caused a warrant to be issued for plaintiff’s arrest upon a complaint charging an assault and battery, etc., and caused plaintiff’s arrest and imprisonment; that on July 30, 1913, plaintiff upon a trial was found not guilty and duly acquitted; and that the prosecution had wholly ended.
    The defendants entered a joint appearance and filed separate affidavits of merits.
    The controversy appeared to have arisen over furniture bought by plaintiff of Bernhard Rosenstiel and Abraham Stiefel, copartners, and later with the consent of said defendants taken by plaintiff’s mother, who refused to make payments or deliver the furniture.
    July 9, 1913, Bernhard and Ed. Bosenstiel called on plaintiff at the store where plaintiff was employed, and inquired why payments had not been made or the furniture returned. Plaintiff testified that on his attempting to explain, Bernhard Bosensteil accused plaintiff of stealing the furniture and of being a thief, and further said: “When we get through with you, you won’t have any job. We will follow you to the end of the earth. Not only that, we will take you down in the alley and kick your * * * head off.”
    The testimony was conflicting as to who struck the first blow. Bernhard Bosenstiel testified that he went to a physician’s office for treatment, and then went to Fox Lake, Illinois. Ed. Bosenstiel testified that he accompanied his father to the train and they talked of arresting plaintiff. Bernhard Bosenstiel further testified that on July 10th he arrived in Chicago about 8:45 a. m., and consulted his attorney at his office, telling him of the occurrences, and was advised to have plaintiff arrested; and that then he went to court and made affidavit to and filed a complaint at about 10 o’clock. The record of the prosecution which was in evidence disclosed that the complaint was filed July 10, 1913; that it alleged that on July 9, 1913, William H. Selle did aid and assist in a riot and breach of the peace, and did unlawfully and wilfully assault another person; that Selle would escape unless arrested and that he was not a resident of the City of Chicago, was only temporarily in said city and.was about to depart from same; that a warrant was issued and that plaintiff was arrested and brought into court July 18th, and that after a full hearing was found not guilty and discharged. Plaintiff testified that he was confined in a cell for about four hours before he was released on bail. It further appeared that after the arrest and np to the time of the trial of this action, plaintiff’s mother had made payments on the furniture.
    Abstract of the Decision.
    1. Malicious prosecution, § 13

      —when person acting on advice of counsel protected. One who in good faith institutes a criminal prosecution on the advice of counsel is not liable in an action for malicious prosecution for so doing if such person in obtaining such advice communicates to such counsel all the facts of which he has knowledge, or could have ascertained by reasonable diligence hearing on the guilt of the accused.
    2. Malicious prosecution, § 78

      —what evidence essential to establish that defendant acted under advice of counsel. In an action for malicious prosecution, in order to sustain a plea that defendant acted under the advice of counsel, it must appear that he in good faith made a full and fair statement to such counsel of all material facts and in good faith acted on such advice.
    3. Malicious prosecution, § 85

      —when question whether defendant fairly communicated facts to counsel and acted in good faith on advice for jury. Where a defendant in an action of malicious prosecution defends on the ground that he acted under the advice of counsel, the question whether defendant fairly communicated all the material facts to such counsel and acted on tie advice in good faith is a question of fact to he determined by the jury on all the evidence.
    4. Torts, § 17

      —when judgment may be taken against one defendant upon dismissal as to another. In an action of tort it is not error to dismiss as to one defendant on motion of plaintiff after a verdict of guilty as to both and to enter judgment against the other defendant on the verdict, since in such case defendants might have been separately sued.
    5. Malicious prosecution, § 98*—when verdict not disturbed.
      In an action of malicious prosecution the amount of damages to be awarded is a question for the jury, and its verdict as to damages will not be disturbed unless manifestly excessive.

      Charles W. Stiefel and John B. Heinemann, for plaintiff in error.
    R. C. Darley and B. F. Johnston, for defendant in error; J. K. McMahon, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number..

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

6. Malicious prosecution, § 97 —when punitive damages recoverable. Punitive damages are recoverable in an action for malicious prosecution where the arrest is made under such circumstances as to indicate a wanton disregard by defendant of the rights of plaintiff in causing his arrest, or where the arrest is procured by means of a false affidavit.

7. Malicious prosecution, § 97 —how punitive damages should be assessed. In assessing punitive damages in actions of malicious prosecution there should be a wide difference between cases where defendant slightly fails to use ordinary care and acts without justifiable cause, but without malice, in causing plaintiff’s arrest, and cases where defendant intended to do plaintiff a wrong, and uses criminal process to gratify hatred and ill-will, each case being governed by its own facts, and to be decided reasonably and equitably.

' 8. Malicious prosecution, § 98 -—when verdict not excessive. In an action for malicious prosecution, where plaintiff after his arrest on a criminal warrant was in confinement in a cell for four hours before being released on bail, a verdict for plaintiff for $1,000 held not so excessive as to indicate passion or prejudice in the minds of the jury.

9. Appeal and error, § 1406 —when verdict not disturbed on ground of excessiveness on appeal. The Appellate Court is not warranted in reducing the amount of a verdict, although on some single aspect of the case a smaller amount would be more satisfactory, where the trial court when appealed to refused to interfere and where the Appellate Court is unable to assign a clear and satisfactory reason for interference.


author: Mr. Justice Barnes

text:
    World Publishing Company, Defendant in Error, v. Harry R. Fisher, Plaintiff in Error.
    Gen. No. 21,154.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1691

      —when defendant by offering evidence accepts ruling that burden of proof is upon him to establish set-off. In an action to recover on a contract, where defendant pleads set-off, a ruling that under the pleadings in the case and the court rules applicable thereto plaintiff’s claim was admitted, and that the affirmative of the issue was with defendant on his set-off, is accepted by defendant by offering evidence to prove the set-off.
    '2. Appeal and error, § 461

      —when question whether finding against weight of evidence and law not preserved for review. In an action to recover on a written contract, the question that the finding in a case tried without a jury is against the law is not preserved for review where no objection is pointed out, no motion made, the denial of which would preserve a question for review, and no propositions of law submitted calling for a construction of the contract or any other holding, there being in such case no ruling of the trial court on which to predicate error.

      Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 1, 1916.
    Statement of the Case.
    Action by the World Publishing Company, a corporation, plaintiff, against Harry B. Fisher, defendant, to recover on a contract for advertising. To reverse a judgment for plaintiff for $537.07, defendant prosecutes this writ of error.
    L. H. Craig, for plaintiff in error.
    John A. McKeown, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tonic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

3. Appeal and error, § 594 —when motion for new trial preserves no question for review. In an action tried without a jury, a motion for a new trial preserves no question for review.

4. Assumpsit, action of, § 41 —when money voluntarily paid not recoverable. Money voluntarily paid with full knowledge of all the facts and without fraud, duress or extortion cannot be recovered back although paid under a mistake of law.

5. Pleading, § 117 —when offering evidence of set-off constitutes admission of terms of contract. In an action to recover on a written contract, where defendant pleads set-off, the act of defendant in offering evidence tending to prove his set-off involves a recognition of the terms of the contract.

6. Appeal and error, § 578 —when lack of exception to judgment does not prevent consideration of sufficiency of evidence. The absence of an exception to a judgment, in a trial without a jury, does not preclude consideration of the sufficiency of the evidence to sustain it.


text:
    Marie A. Hesse, Administratrix, Defendant in Error, v. John A. Colby & Sons, Plaintiff in Error.
    Gen. No. 21,177.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1915.
    Reversed.
    Opinion filed February 1, 1916.
    Statement of the Case.
    Action by Marie A. Hesse, administratrix of the estate of Frances Branitzky, deceased, plaintiff, against John A. Colby & Sons, defendant, in the Municipal Court of Chicago, to recover on a written contract between plaintiff’s intestate • and defendant for seven monthly instalments of salary alleged to be due under the contract. To reverse a judgment for plaintiff for $350, defendant prosecutes this writ of error.
    Frances Branitzky was employed as a saleswoman by defendant for many years, and was specially valuable as such. In May, 1908, she was injured in defendant’s building. February 11,1910, she executed a general release to defendant and others in consideration of $6,068.20. February 9, 1910, she entered into an agreement with defendant which refers to the release as executed therewith, in part as follows:
    ‘‘That in consideration of a general release herewith executed by the party of the second part, to the party of the first part and others, and as a part of the consideration for said general release, the party of the first part promises and agrees to pay to the party of the second part the sum of three thousand dollars ($3,000), payable monthly, commencing February 1st, 1910, said sum to be payable in equal instalments of fifty dollars ($50) per month.
    ‘ ‘ The party of the second part, as a part of the consideration for this payment, agrees that during the five years from February 1st, 1910, she will perform such clerical services for the party of the first part, as she may be called upon to do and as she may be physically able to perform without injury to her health or strength.
    “It is understood and agreed by the parties hereto that the hours of the party of the second part for such services shall be easy and that she shall be the judge as to whether or not she is able to work during said period of time, the meaning* and intention being that the party of the second part shall perform such clerical work for the party of the first part as she is able to perform without injury to her health or strength during said period.”
    Defendant paid plaintiff’s intestate $50 each month ($1,800 in all) up to her death in February, 1913. Meanwhile she rendered no services for defendant, but rendered similar services for another firm from October, 1912, until the month before her death, working eight and one-half hours a day.
    Abstract of the Decision.
    1. Master and servant, § 11

      —what constitutes contract for personal services. A contract providing that defendant shall pay plaintiff’s intestate $50 per month during the term of the contract, and further providing that plaintiff “will perform such clerical services f or”' defendant “as she may be called upon to do and as she may be physically able to perform without injury to her health or strength," but expressly allowing plaintiff’s intestate to be the judge of whether or not she is able to work within the meaning of the contract, is to be construed as a contract for personal services.
    2. Master and servant, § 76

      —when death before time for payment of instalments of salary bars recovery. In an action to recover on a written contract of employment, where the pleadings show that the contract sued on was for personal services, and the affidavit of merits shows as an admitted fact that the contractor died before any of the instalments of salary fell due, such pleadings present no legal cause of action.
    3. • Pleading, § 345*—when exhibits not part of. Exhibits “annexed" to common-law pleadings are not part of such pleadings.
    4. Municipal Court of Chicago, § 13*—when contract sued on part of pleadings. In an action in the Municipal Court of Chicago to recover on a written contract, where the contract sued on is “annexed" to the statement' of claim, hut where defendant’s affidavit of merits is predicated on the existence of such contract, the contract is to be treated as having been made part of the pleadings, although it does not appear whether it would be part of such pleadings under the rules of the Municipal Court, the system of pleading and practice being loose, and it being in such case proper to construe such pleadings liberally.

      The action was tried by the court without a jury and the finding was for plaintiff for the amount of her claim.
    Adams, Follansbee, Hawley & Shobey, for plaintiff in error; Clyde E. Shobey, of counsel.
    Moses, Bosenthal & Kennedy, for defendant in error; Julius Moses and Abthub E. Manheimer, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

5. Master and servant, § 80 —when question of law only presented in pleadings. In an action to recover on a written contract of employment where the pleadings show a contract for personal services, and also show as an admitted fact that contractor died before any of the instalments of salary sued for fell due, the pleadings present merely a question of law.

6. Contracts, § 164 —when parol proof inadmissible in construction of. In an action to recover on a written contract for personal services, contract construed and held not ambiguous or uncertain so as to require proof of extraneous facts or circumstances in aid of construction.

7. Contracts, § 164 —how unambiguous contract construed. Where the language of a written instrument is unequivocal it must be construed as written.

8. Master and servant, § 11 —when contract for personal services construed as providing for bona fide exercise of judgment by employee whether able to work. A contract providing that the master shall pay to the servant a stated sum each month during the term of the contract, the servant to perform such services for the master “as she may be physically able to perform without injury to her health or strength,” and making the servant the judge as to whether she is able to work within the meaning of the contract, does not leave it optional with the servant whether to work or not, but calls for a bona fide exercise of her judgment in that regard.

9. Master and servant, § 11*—how contract for rendition of personal services construed. In an action to recover on a written contract providing that defendant should pay plaintiff’s intestate a stated sum of money each month during the term of the contract, intestate to “perform such clerical services” for defendant “as she may be called upon to do and as she may be physically able to perform without injury., to her health or strength,” and making intestate the judge of whether she was able to work within the meaning of the contract, the contract reciting that it was executed in part consideration óf a general release given by intestate to defendant and others of liability for injuries sustained by intestate, held that the contract was to be construed as contemplating that defendant was to have the benefit of intestate’s services whenever by a bona fide exercise of her judgment she was able to work without injury to her health or strength, and that in addition to the sum paid as consideration for the release defendant was to furnish intestate with employment for the term of the contract at the stipulated salary without deductions for absence when unable to work.

10. Trial,—when .finding and judgment for defendant enteradle upon motion mthout evidence. Where the pleadings in trial without a jury present no issue of fact and no cause of action, it is proper on motion to enter a finding and judgment for defendant without evidence.

11. Contracts, § 289 —how contract for personal services terminated. A contract for personal services is terminated by the death of contractor.


author: Mr. Justice Barnes Per Curiam.

text:
    The People of the State of Illinois, Defendant in Error, v. Daniel Donahoe, Plaintiff in Error.
    Gen. No. 21,209.
    1. Conspiracy, § 53

      —when question of intention and acting without reasonable grounds in prosecuting suit for jury. The question whether defendant knowingly and corruptly conspired with others to bring a civil suit without reasonable grounds and to prosecute it on false evidence for the purpose of defaming another is for the jury.
    2. Attorney and client,—when attorney acting on information from client not immune from criminal prosecution. The principle that an attorney at law has the right to speak and act on information furnished by his client, and may claim immunity in the exercise of such right, cannot be used as a shield against crime, since such an application or perversion of such right is not required or justified either by the lawyer’s professional duty, the protection of the client’s rights, or the reason for the privilege.
    3. Attorney and client,—when attorney who has wrongfully prosecuted suit not immune from criminal prosecution. Where an action is brought with unlawful design and with intention if tried to prosecute it by false testimony, knowing that there was no foundation therefor, the mere fact that in bringing the action the functions of an attorney at law were exercised will not protect the attorney from the revelation of every word and act in pursuance of the design, especially where the suit is not brought in good faith, the supposed client merely lending the aid of his name and services to press for the benefit of others a false issue in which he had no personal interest and claimed no legal right, the relation of attorney and client not existing in reality in such case.
    4. Conspiracy, § 49

      —when evidence of declarations or overt acts competent. In actions for conspiracy, evidence either direct or circumstantial, or declarations or overt acts designed to effect the accomplishment of the conspiracy is competent.
    5. Conspiracy, § 49

      —what evidence admissible on behalf of State against attorney who wrongfully prosecuted civil suit. In an indictment against an attorney at law for conspiracy to bring and prosecute a civil suit without reasonable grounds and on false testimony, where there is prima facie proof that defendant took an active part in the conspiracy, the State is not limited to proof that the suit was brought and prosecuted, but may show every step taken in prosecuting such suit as a part of the means employed to consummate the conspiracy.
    6. Conspiracy, § 49*—what evidence competent as part of res gestee. In an indictment against an attorney at law for conspiracy to bring a civil suit and to prosecute it by false testimony, whatever was said or done to advance the cause to a successful issue is competent as part of the res gestas.

    7. Conspiracy, § 49*—when evidence in civil suit admissible in criminal suit to show purpose of defendant in bringing suit. In an indictment against an attorney at law for conspiracy to bring a civil suit without reasonable grounds and to prosecute it ,on false testimony, evidence for the defense in the civil suit is relevant in the criminal suit- to show the purposes actuating defendant in bringing the suit, since conducting a trial to verdict involves not only proof and evidence to support the charge but also resistance to attempts to defeat it, so that such evidence is competent in the criminal trial to characterize such resistance.
    8. Conspiracy, § 49*—when any part of trial in civil action admissible in criminal action to show attitude and motives of defendant in bringing suit. In an indictment against an attorney at law for conspiracy to bring a civil suit without reasonable grounds and to prosecute it on false testimony, any part of the trial of the civil suit is competent to characterize defendant’s attitude, motives, intent and purpose in relation to the conspiracy, or to the means employed to carry it into effect, the events of the trial being inseparably connected with the means employed to carry the conspiracy to fruition, and the trial, as an entirety, being such a means.
    9. Conspiracy, § 49

      —when depositions used in civil trial admissible in criminal trial against attorney for plaintiff in civil trial. In an indictment against an attorney at law for conspiracy to bring a civil suit without reasonable grounds and to prosecute it on false testimony, such suit charging one with having alienated the affections of and with having debauched and carnally known the wife of another, where there is evidence that defendant knew that there was no basis for the charge that such wife’s affections had been alienated, depositions read in the civil trial showing that at the time such civil suit was brought such wife and her husband were living together amicably and affectionately are competent in the criminal trial, not as proof of the facts contained in the depositions, but as giving significance to defendant’s acts, purposes and motives, the depositions being relevant in the criminal trial by defendant’s efforts in the civil trial to induce the jury to disbelieve the depositions, and thus to thwart their effect, in which case it is immaterial that the depositions were introduced against defendant in the criminal trial without opportunity to cross-examine the deponents.
    10. Conspiracy, § 49*—when affidavits filed in civil trial admissible in criminal trial against attorney prosecuting civil trial. In an indictment against an attorney at law for conspiracy to bring a civil suit without reasonable grounds and to prosecute the same on false testimony, affidavits filed in the civil trial in support of a motion to advance for speedy trial, and showing the falsity and unlawful purpose of the action and the reasons for their early exposure and defendant’s exoneration, are competent in the criminal trial as giving color and significance to an opposing affidavit instigated by defendant and used in the civil trial to defeat the attempt to show the innocence of defendant therein thereby furthering an object of the conspiracy.
    11. Conspiracy, § 49*—when evidence of conversation of plaintiff in civil suit admissible in criminal trial against attorney for plaintiff in civil suit. On an indictment against an attorney at law for conspiracy to bring a civil suit without reasonable grounds and to prosecute it by false testimony, evidence of a conversation with plaintiff in the civil suit after the suit was begun, wherein such plaintiff admitted that the suit was groundless, is made material by evidence that defendant knew that the admission was true, although some parts of the conversation testified to were objectionable as being hearsay, such evidence being competent only as bearing on defendant’s efforts to impeach its value in order to obtain a favorable verdict and thus accomplish the object of the conspiracy.
    12. Conspiracy, § 49

      —when verdict in civil suit admissible in criminal action against attorney for plaintiff in civil suit. On an indictment against an attorney at law for conspiracy to bring a civil suit without reasonable grounds and to prosecute it on false testimony, a verdict in the civil suit finding the defendant therein not guilty is material to explain evidence introduced in such suit that immediately after such verdict was rendered defendant advised the flight and concealment of plaintiff in such suit, such fact being inconsistent with the institution or prosecution of such suit in good faith.
    13. Conspiracy, § 49*—when every legal incident of trial of civil case admissible in criminal ease against attorney for plaintiff in civil case to show motives of attorney. On an indictment against an attorney at law for conspiracy, where one of the main issues is whether a civil suit was knowingly brought and prosecuted by defendant without reasonable grounds and for unlawful purposes, every legal incident of the trial so set in motion is relevant in the criminal trial as throwing light on defendant’s motives for his conduct both before and during such civil trial.-
    14. Conspiracy, § 54*—when denial of motion to strike statement by one of State’s xoitnesses not reversible error. On an indictment against an attorney at law for conspiracy to bring a civil suit without grounds and to prosecute it on false testimony, the denial of a motion to strike a statement of one of the State’s witnesses that he went to defendant’s office “about the time Mr. Hines brought his one hundred thousand dollar suit against” defendant in the civil suit, held not reversible error.
    15. Criminal law, § 236*—when remarks by State’s Attorney not improper. On an indictment against an attorney at law for conspiracy to bring a civil suit without reasonable grounds and to prosecute it on false testimony, the remark of an Assistant State’s Attorney in argument that defendant induced some one in the State’s Attorney’s office to furnish him with a transcript of evidence taken before the grand jury which defendant offered in his own behalf at the trial, held not to afford ground for serious misunderstanding by the jury, the objection to the remark being that the fact was misrepresented and not to the comment on the fact.
    16. Criminal law, § 236*—when State’s Attorney may comment on failure to call stenographer to verify statements in paper. On an indictment for conspiracy, where defendant offered in evidence a statement taken down by a stenographer and sworn to, it is proper for the State’s Attorney to comment in argument on the fact that the stenographer was in court and was not called on to verify the statement, the fact being significant if the facts in the statement were true, and the witness if called being subject to cross-examination, while the paper was not.
    17. Criminal law, § 218

      —when State’s Attorney not required to call all witnesses. The State is not required to call all the witnesses alluded to in evidence on a criminal trial, if the State’s Attorney doubts the integrity or veracity of such witnesses.
    18. Conspiracy, § 51*—when comment by State’s Attorney on failure to call certain witnesses for defense proper. On an indictment against an attorney at law for conspiracy to bring a civil suit without reasonable grounds and to prosecute it on false testimony, comment is proper by the State’s Attorney in argument on the fact of defendant’s failure to call certain witnesses shown by undenied evidence to have been in intimate relationship with him and to have acted as his agents in carrying out certain parts of the conspiracy, where it appears that such witnesses were in the control of defendant during the pendency of the civil trial and that defendant controlled some of them at a later date, it not appearing that defendant was unable to produce such witnesses.
    19. Conspiracy, § 51*—when State may comment on failure of defense to produce witnesses. In both civil and criminal cases of conspiracy, it is proper to comment on the failure of witnesses shown to have aided in carrying out the conspiracy to testify, where it appears that defendant at one time controlled such witnesses, and where it does not appear that he could not have produced them at the trial.
    20. Conspiracy, § 51*—what does not constitute reference to failure of defendant to talce stand in his own defense. On an indictment for conspiracy, the allusion by the State’s Attorney in argument to the fact that defendant failed to produce at the trial certain witnesses shown to have acted as defendant’s agents in carrying out the conspiracy is not an infringement of section 6 of division 12 of the Criminal Code (J. & A. jf 4123), forbidding reference to the failure of defendant to take the stand in his own defense.
    21. Conspiracy, § 51*—when allusion by State as to failure to produce witnesses not objectionable as tending to shift burden of proof. On an indictment for conspiracy, the allusion by the State’s Attorney in argument to the fact that defendant failed to produce at the trial certain witnesses shown to have acted as his agents in carrying out the conspiracy is not objectionable as tending to shift the burden of proof.
    22. Criminal law, § 240*—when State may comment on failure

      of defendant to contradict witnesses for State. The State’s Attorney in a criminal case may properly comment on the fact that the testimony of witnesses for the prosecution, has not been contradicted, even though defendant alone is in a position to contradict or dispute such testimony.
    23. Criminal law, § 240

      —when State may comment on failure of defendant to contradict witnesses for State. In a criminal case the State’s Attorney may properly allude to defendant’s failure to call witnesses other than defendant who could have contradicted or disputed the State’s evidence, and who were in such intimate relationship with defendant as to justify the inference that he could and would have called such witnesses if the testimony for the prosecution had not been true.
    24. Criminal law, §' 553*—when improper reference by State in argument to acquitted codefendant harmless error. On an indictment against an attorney at law and another for conspiracy to bring a civil suit without reasonable grounds and to prosecute it on false testimony, where the attorney’s codefendant was acquitted, the reference by the State’s Attorney in argument to the failure to call codefendant as a witness, was not harmful to the defendant attorney, even though not inadvertently made and corrected before objection.
    25. Conspiracy, § 50*—when legal presumptions and evidence as to good character of defendant not conclusive as to defendant’s innocence: On an indictment for conspiracy, legal presumptions and evidence of good character of defendant, although valuable as evidence, are not conclusive of defendant’s innocence as against positive, undenied evidence of an incriminating nature not improbable of itself and capable of being denied if not true.
    26. Conspiracy, § 53*—when questions of whether legal presumptions and evidence create reasonable doubt as to guilt for jury. On an indictment for conspiracy, the question whether legal presumptions and evidence of defendant’s good character are sufficient to create a reasonable doubt of defendant’s guilt as against undenied positive evidence of an incriminating nature, not improbable in itself and capable of being denied if not true, is for the jury.
    On Rehearing.
    Criminal law, § 491*—when rehearing denied on points not argued. In the absence of exceptional circumstances or a showing that would materially affect the merits of the main controversy as to the guilt of plaintiff in error, or that manifestly a great injustice has been done, a rehearing of the case on points not before argued or specifically called to the attention of the court should be denied.
    Error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 1, 1916.
    Rehearing denied and additional opinion filed March 31, 1916.
    James Hartnett, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Hayden N. Bell and Marvin E. Barnhart, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number*

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, sume topic and section number,

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

The indictment in this case charged a conspiracy between plaintiff in error, Donahoe, one Stiefel, one Aileen Heppner and persons unknown having among other objects the defamation of one Clarence S. Funk. The several objects charged in different counts were to be effected by bringing and prosecuting, if necessary, a civil suit by one John C. Henning against Funk, charging the latter with having debauched and carnally known Josephine Henning, the former’s wife. That there was an indictable offense charged is not open to question.

The gist of the case as made out at the trial was that pursuant to such a conspiracy the suit was knowingly and corruptly planned, instituted and prosecuted without foundation and on false testimony to promote one or more of the various objects set forth in the indictment, which, so far as the questions here are concerned, need not be severally stated.

The specific points argued in plaintiff in error’s brief are summarized under the contentions that there was (1) a denial of his privilege as an attorney; (2) admission of improper evidence; and (3) prejudicial remarks at the trial. Other contentions are made generally that he was denied constitutional rights and that the verdict and judgment are contrary to law, which are embraced in one or more of the foregoing points, and that the verdict is contrary to the evidence and should have been directed by the court. But it was obviously a case for the jury, and as no instructions are complained of, their verdict should stand unless there was reversible error in one or more of the matters specifically discussed.

First, as to the question of privilege. The contention in effect is that because Donahoe was acting as attorney for Henning in said civil suit none of the proceedings therein involving his declarations and acts was admissible against him. The basis of the contention is the generally recognized right of an attorney to speak and act upon information furnished by his client, and the immunity afforded him in the exercise of such right. ,It is the privilege he may invoke in such actions as libel and slander when based on his words or papers used in the course of judicial proceedings. The principle and its application are well recognized. But we are aware of no case where it has been invoked or allowed as a shield to crime. Neither fulfillment of the lawyer’s professional duty, nor protection of his client’s legal rights nor the reason for the privilege requires or justifies any such application or perversion of its use. If the suit against Funk was brought by plaintiff in error, knowing there was no foundation therefor and intending if tried to prosecute it on false testimony, the mere fact that in so doing he exercised the offices of an attorney would not protect him from the revelation of every word and act in pursuance of the unlawful design. Besides, there was much undisputed evidence that the civil suit was not brought in good faith and that the relationship of attorney and client, on which the privilege invoked depended, did not in reality exist between Donahoe and Henning but that the latter was induced by the former merely to lend the use of his name and services to press for the benefit of others a false issue in which he had no personal interest and claimed no legal right.

Second. As to claim of improper evidence. Part of the evidence claimed to be inadmissible was that of proceedings had and testimony heard in the civil suit, which were received as proof both of means employed to carry out the conspiracy and to show one or more of its specific objects. If they tended to show either they were unquestionably competent. The law pertaining to conspiracy is too well established and known to require citation of authorities as to the materiality of any such evidence, whether direct or circumstantial, or declarations or overt acts designed to effect its accomplishment.

There being prima facie proof of an active part by plaintiff in error in a conspiracy to bring and prosecute such suit without reasonable grounds and on false testimony, the people were not limited to proof of the mere fact that the suit was brought and prosecuted, but were entitled to show every step in its prosecution to its final result, as a part of the means employed to consummate the conspiracy. Whatever was said or done therein to advance the cause to a successful issue was a part of the res gestee. Conducting the trial to a verdict involved not merely proof and argument to support the charge but resistance to every effort made to defeat it, and thus made evidence for the defense in that suit relevant in this to characterize such resistance and the purposes beneath it. Every step taken, every fact relied on, every word used in the trial became so inextricably connected with its purposes and the conspiracy charged, as to be inseparable from the conspiracy or the means exercised to carry it to fruition. The trial as an entirety constituted such means, arid hence any part of it was admissible to characterize plaintiff in error’s attitude, motives, intent and purposes as related to the conspiracy or the means employed to carry it into effect.

The parts designated and argued as erroneously admitted in evidence consist of (1) depositions read by the defense; (2) affidavits in support of defendant’s motion to advance the cause for trial; and (3) testimony of defendant’s witness Fortner. None of them was admitted to prove the alleged facts they contained, but as a part of the res gestee as well as to give significance and interpretation to other related proceedings in the civil suit unquestionably competent to show the conspiracy or means employed to effect it.

The depositions showed, in substance, that Henning and his wife were living amicably and affectionately - together at the very time the suit was commenced. Donahoe’s legal firm had notice of and participated in the taking of them. There having been evidence in the instant case that Donahoe knew from the beginning that there‘was no basis for the charge that Mrs. Henning’s affections were alienated, any efforts he made in the civil suit to induce the jury to believe to the contrary and thus to thwart the effect of the depositions rendered them competent to give significance to his acts, purposes and motives. The objection that they were introduced against plaintiff in error without opportunity to cross-examine the deponents was based upon an utter misconception of their relevancy as above explained.

The affidavits objected to set up, in substance, the falsity and unlawful purposes of the civil suit and reasons for their early exposure and Funk’s speedy exoneration. They were material to give color and significance to Henning’s opposing affidavit which appeared to have been instigated and used to defeat defendant’s attempt to show his innocence and thus to further an object of the conspiracy.

Fortner’s testimony set forth an interview with Henning after the suit was begun in which he admitted it was groundless. Donahoe’s argument to the jury sought to impeach its effect. The introduction of evidence that he knew that Henning’s admission was true rendered its materiality obvious. The specific objection that some parts of the interview were hearsay ignores the ground of its materiality, namely, its bearing on Donahoe’s efforts to impeach its value in order to obtain a favorable verdict.

Some documents pertaining to the civil proceedings, like the clerk’s wrappers, for instance, may have been incompetent as not part of the res gestee, but were seemingly harmless in character. But as no other parts of such proceedings, than those already considered, are specifically discussed in plaintiff in error’s brief, we shall not review them in detail, except to say of the verdict finding Funk not guilty, that if not a part of the res gestee, it was material to explain evidence that immediately after its rendition Donahoe urged Henning’s flight and concealment, a fact inconsistent with the institution or prosecution of the suit in good faith. It may be said generally, however, that as one of the main issues presented in the instant ease was whether the civil suit was knowingly brought and prosecuted by plaintiff in error without reasonable grounds and for unlawful purposes, every legal incident of the trial so set in motion would seem to be not only a part of the res gestee but relevant as throwing light on the motives for his conduct both before and during the trial.

It is also urged as error that the court did not strike out a statement of the People’s witness Deuter that he went to Donahoe’s office about “the time Mr. Hines brought his one hundred thousand dollar suit against Mr. Funk. ’ ’ If error we do not think it such as to require a reversal.

Third. As to prejudicial remarks. The Assistant State’s Attorney in his argument to the jury commented on testimony to the effect that Donahoe had induced some one in the State’s Attorney’s office to furnish him a transcript of Mrs. Henning’s testimony before the grand jury that was offered in evidence in his behalf. The objection thereto was not to the right to comment on the circumstance but that the State’s Attorney wilfully misrepresented it. There does not appear to have been ground for any serious misunderstanding on the part of the jury.

Comment was also made on the failure of the defense to call certain persons as witnesses shown by the State’s evidence to have acted as agents for Donahoe in carrying out certain parts of the conspiracy. None of them was named as defendant in the indictment. Each was shown, without any attempt at denial, to have carried communications or money from Dona-hoe to either Mr. or Mrs. Henning, or to have aided in keeping them in concealment while the civil suit was pending or otherwise in carrying out the conspiracy. If the testimony of Henning and his wife against Donahoe was not true, a great part of it could have been denied by such persons. And if what was offered by the defense as her statement to Donahoe taken down by and sworn to before Donahoe’s office stenographer, Lamble, who was present in court in Dona-hoe ’s employ, was true, it was significant and a proper subject for allusion that he was not called to verify it. As the State’s Attorney pertinently said, he could not cross-examine the paper but he could the witness. The People, though not required to call the parties so alluded to (Carle v. People, 200 Ill. 494), made proof of their inability to produce any of them except Lamble. After undenied proof of their intimate relationship with Donahoe, and his ability to control their services during the pendency of the suit, and later as to some, we see no error in the absence of any proof that he could not produce them, in alluding to their failure to testify. Such comment under such circumstances is permissible in criminal as well as civil cases. (People v. McGarry, 136 Mich. 316; Commonwealth v. McCabe, 163 Mass. 98; 1 Greenleaf on Evidence, sec. 195 b.) The allusion was no infringement of the statute which forbids reference to the failure of a defendant in a criminal ease to take the witness stand, nor tantamount to shifting the burden of proof. If as has been held by our Supreme Court the state’s attorney has a right to comment on the fact that the testimony of witnesses for the prosecution has not been contradicted or disputed even though the defendant was the only person in a position to have disputed it (People v. McMahon, 244 Ill. 45; Bradshaw v. People, 153 Ill. 156), we fail to see why he may not go further and point out persons other than the defendant, shown by the evidence to have been in such a position and to have had such intimate relationship with the defendant as to justify the inference that he could call them and would have done so, if the testimony for the prosecution was not true.

In discussing the failure of the defense to call witnesses present when a statement was sworn to by the witness Slavin, the assistant state’s attorney mentioned Stiefel, who was a codefendant with Donahoe and acquitted. Before objection was made he corrected himself saying he meant ' ‘ Ahem, ’ ’ one of the parties so present. There was no pretense that Donahoe was among those present on the occasion being discussed. The reference not being to his failure to testify or capable of such construction, it did not so far as he was concerned come within the inhibition of said statute. As it did no harm to Stiefel, who but for his acquittal might have complained of it, it is difficult to see how it did to Donahoe, to whom the allusion was not made.

We have carefully examined the record and plaintiff in error’s argument and fail to find reversible error. His general legal propositions are unquestioned. But either their application is not apparent or their violation is not shown. No attempt at a direct denial of any specific incriminating facts was made. With the exception of a signed statement by the. People’s witness Slavin, and evidence bearing on its authentication, and a signed statement by Mrs. Henning, both of which so far as helpful to plaintiff in error were expressly repudiated, and a copy of the latter’s testimony before the grand jury, plaintiff in error relied wholly upon legal presumptions and evidence of his previous good character. Valuable as both are, they are not conclusive as against positive undenied evidence of an incriminating nature not improbable in itself and capable of denial if not true. Whether they were sufficient to generate a reasonable doubt of guilt was for the jury to say, and their verdict and the judgment thereon should stand in the absence of reversible error.

Affirmed.

Per Curiam.

In the petition for rehearing plaintiff in error, evidently recognizing the settled practice of Appellate Courts to regard as waived assigned errors not argued, asks leave and proceeds to discuss points not specifically argued nor alluded to in his brief or oral argument. Nearly one hundred pages of the petition are devoted to a discussion of them. We had previously denied a motion to file a “supplemental brief” made after our opinion was rendered, and would be warranted in striking the petition from the files. To reconsider the case on grounds other than those relied on and discussed in plaintiff in error’s brief and argument without giving an opportunity for reply, would be manifestly irregular and unjust; and to reopen the case, after decision thereof on points discussed, to consider assigned errors not argued nor apparently deemed of sufficient importance to bring to our attention when the case was before us for consideration, would not only be unusual but encourage procedure of a speculative character. In the absence of exceptional circumstances or a showing that the new matters would materially affect the merits of the main controversy as to plaintiff in error’s guilt or that there has manifestly been a great injustice done, a rehearing of the case on points not before argued or specifically brought to our attention would be unjustified. On the points considered in our opinion, which covered each and every one argued, the petition presents nothing new or controlling. As to other points, it cannot be entertained further than to say that the indictment, discussed therein for the first time, contains at least some good counts. But neither it, nor a single instruction, nor several rulings on evidence to a discussion of which the petition is mainly devoted, were alluded to in the brief.

Rehearing refused.