text:
    J. A. Clark, Appellee, v. M. O. Lee, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by J. A. Clark, plaintiff, against M. O. Lee, defendant, for fraud and deceit in the sale by defendant to plaintiff of certain shares of capital stock of a corporation. From a judgment for plaintiff for $1,500, defendant appeals.
    Dyer & Dyer and O. M. Jones, for appellant.
    Robert R. Rodman, William M. Acton and Jay Briggs, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Evidence, § 300 —when corporate books not identified so as to be admissible. In an action for fraud and deceit in the sale of certain shares of capital stock of a corporation, where, for the purpose of proving that at the time the stock was sold to plaintiff it was worthless, the secretary of a trust company which had been appointed receiver for the corporation whose stock was in question, produced in evidence certain books which he testified had been sent, with others not produced, by express to the clerk of the court by the president of the corporation and by the clerk delivered to the witness, and that he did not himself know that the books produced were the hooks of the corporation, held that there was no identification of the books produced as the books of the corporation, and that they were incompetent.

2. Sales—when evidence insufficient to show ownership by corporation of premises on which factory was built in action for fraud in sale of stock. In an action for fraud and deceit in the sale of certain shares of capital stock of a corporation, where, for the purpose of proving that at the time the stock was sold to plaintiff the corporation did not own or have a deed of the property on which its factory was located, under an allegation in the declaration that the defendant had falsely represented that the corporation did then have a deed for said property, the secretary of a trust company which had been appointed receiver for the corporation produced in evidence a certain lease by the corporation as lessee of said property which he testified had been sent with other papers and books by the president of the corporation to the clerk of the court and had been delivered by the clerk to the witness, who did not know whether the buildings of the corporation were erected upon the premises described in the lease, and there was no other evidence as to the ownership by the corporation of said premises, held that there was no competent evidence tending to prove such allegation of the declaration as to ownership by the corporation of the premises on which its factory was built.

3. Sales—«Aero declaration states good cause of action for fraud in sale of stock. A declaration in an action for fraud and deceit in the sale by defendant to plaintiff of certain shares of capital stock of a corporation, based upon alleged false representations by the defendant, charging that defendant recklessly made the false representations as of his own knowledge without knowing whether they were true or false with intent to deceive and defraud plaintiff, held to state a good cause of action.

4. Instructions, § 118*—when erroneous as not conforming to evidence. The giving of an instruction, in an action for fraud and deceit in the sale of certain shares of capital stock based upon alleged false representations as to the value of such shares, stating a correct proposition of law in regard to when the value of stock may be a material fact, held erroneous for the reason there was no competent evidence on the question of such value.

5. Instructions, § 75*—when erroneous as assuming facts. In an action for fraud and deceit in the sale of certain shares of capital stock based upon certain alleged false representations by the defendant, an instruction which assumed that defendant’s representations were false and fraudulent, held to be erroneous.

6. Sales, § 419 —when instruction erroneous in action for fraud in sale of stoclc. In an action for fraud and deceit in the sale of certain shares of capital stock based upon certain alleged false representations by the defendant, an instruction attempting to set out what representations were material and enumerating among others certain statements by the defendant as to value of the stock and ownership by the corporation of certain property of which there was no competent evidence, held to be erroneous.

7. Appeal and error, § 1300*—when presumed that leading questions were of no importance. Where objection was made in argument that the court erred in permitting leading questions which were not presented in the brief and no reference to the abstract where such questions might be found was made, held that it would be assumed such questions were of no importance.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    City of LaHarpe, Appellee, v. George Watts, Sr., Appellant.
    (Not to be reported in full.)
    Appeal from the County Court of Hancock county; the Hon. E. W. Dunham, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Prosecution by the City of LaHarpe, plaintiff, against George "Watts, Sr., defendant, for violation of an ordinance of the plaintiff concerning dramshops, wholesale stores and the sale of intoxicating liquors. From a judgment of conviction and adjudging defendant to pay one hundred and sixty dollars, defendant appeals.
    Abstract of the Decision.
    1. Intoxicating liquors, § 17

      —when license ordinance invalid. Ordinance No. 88 of the City of LaHarpe, providing that when the city council should elect to grant a license to keep a dramshop or to sell intoxicating liquors the council should at the time of granting such license determine and fix the amount of the fee to be paid, etc., held'void in not definitely fixing the amount of such fee.
    2. Intoxicating liquors, § 40*—validity of license issued under void ordinance. A dramshop license issued .under a city ordinance which is void affords no protection to the holder of it.
    3. Intoxicating liquors, § 17*—when license ordinance suspended. A city ordinance' for the licensing of dramshops passed prior to the time the city became anti-saloon territory, held to be suspended during the time such city remained anti-saloon territory, under J. & A. V 4644, providing that ordinances for the restriction, regulation or prohibition of the sale of intoxicating liquors, so far as inconsistent with the status of such territory as anti-saloon territory, shall be suspended during the time it remains such territory.
    4. Intoxicating liquors—when no conviction may he had for violation of suspended license ordinance. No conviction may be had for violation of a city ordinance for the licensing of dram-shops while such ordinance stands suspended, under J. & A. H 4644, providing that ordinances for the restriction, regulation or prohibition of the sale of intoxicating liquors, so far as inconsistent with the status of territory as anti-saloon territory, shall be suspended during the time such territory remains anti-saloon territory.
    Plantz & Lamet and Hartzell & Cavanagh, for appellant.
    C. W. Warner and J. W. Williams, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

5. Intoxicating liquors—when prosecution should he in name of People of State. Where intoxicating liquors were sold in anti-saloon territory in a city whose ordinances provided for the licensing of dramshops and for a penalty for selling such liquors without having such license, held that a prosecution for selling such liquors should be in the name of the People of the State under the law by which the anti-saloon territory was created and not in the name of the city under such ordinances.


text:
    C. B. Gones, Appellee, v. Illinois Printing Company et al., Appellants.
    (Not to lbe reported in full.)
    Appeal from the' Circuit Court of Vermilion county; the Hon.
    Augustus A. Partlow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by G. B. Gones, plaintiff, against Illinois Printing Company, a corporation, J. G. Fisher and Newton Shields, defendants, to recover damages for personal injuries sustained by being run into by an automobile belonging to defendant Fisher. From a judgment for plaintiff for $5,000, defendants appeal.
    Ralph M. Jinkins and John H. Lewman, for appellants.
    Walter T. Gunn and Thomas A. Graham, 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 Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Corporations, § 310*—when declaration in action against servant of corporation for negligence in erecting fence in street insufficient. In an action to recover damages for personal injuries against several defendants where the only allegation in the declaration as to one defendant was that another defendant, a corporation, had “by and through its servant [said first defendant] erected and maintained” a certain fence in a street which it was alleged had prevented plaintiff from avoiding the third defendant’s automobile which ran into plaintiff and injured him, held that such declaration did not charge the first defendant personally with any negligence and failed to state a cause of action against him.

2. Municipal corporations, § 896*—what are rights of public in street. While the public has a paramount right to the use of a public street, this right is not absolute but relative.

3. Municipal corporations, § 917*—what does not constitute an obstruction of street. In the improvement, erection or repair of buildings and the construction of drains and sewers therefor or of other adjuncts, the placing of building materials in the street preparatory to, building on the land is not unlawfully obstructing the street.

4. Municipal corporations, § 1038*—what is nature of need authorising placing of building material on street. The necessity of using a public street for the placing of building material preparatory to improving, erecting or repairing buildings or drains or sewers therefor need not be an absolute but it is sufficient if it be a reasonable one.

5. Municipal corporations, § 1038*—when leaving of building materials on street not wrongful obstruction. In an action to recover damages for personal injuries sustained by plaintiff being run into by the automobile of one defendant, which it was alleged plaintiff was unable to avoid because of a certain fence erected by another defendant in the street under a permit from the city to enable such defendant to place building material preparatory to building, the fact that the limit of time fixed in the permit for the obstruction had expired when the accident happened, held not to make such obstruction wrongful, as it was one which such defendant had the right to make without a permit, no ordinance or facts being pleaded showing any such permit was required.

6. Municipal corporations, § 1038 —ivhen fence in street not proximate cause of injury to bicycle rider by automobile. In an action to recover' damages for personal injuries sustained by plaintiff being run into by the automobile of one defendant which it was alleged plaintiff could not avoid because of a certain fence erected by another defendant in the street under a permit from the city for building purposes, where the plaintiff as he was going on his bicycle towards a street intersection where the fence was located could see the automobile two hundred feet away on the cross street and the automobile was proceeding down the middle Of the street and plaintiff was struck by it when he was four or five feet beyond the fence, held, that the fence was not shown to be the proximate cause of the injury.

7. Municipal corporations, § 1038 —when existence of fence in street after expiration of building permit not proximate cause of injury to bicycle rider by automobile. Where a fence was erected in the street under a permit for building purposes, the fact that the time limit fixed in it had expired does not make the fence the proximate cause of an injury sustained by a party riding a bicycle being struck by an automobile on an intersecting street where such fence was located, as he was attempting to cross such intersecting street.

8. Judgment, § 200*—when judgment against several defendants jointly reversed as to all. A judgment against several defendants jointly, in an action to recover damages for personal injuries, against one of whom no cause of action was set up in the declaration, must be reversed as to all.


text:
    J. H. Wallace et al., Appellees, v. Citizens’ State Bank of Windsor et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill for an- injunction by J. H. Wallace, W. H. Own-by, J. A. Erwin, O. C. Firebaugh, and Ruth Wallace Firebaugh, complainants, against the Citizens’ State Bank of Windsor, Illinois, and the officers and stockholders of such bank, except complainant J. H. Wallace, defendants, to compel the transfer to complainant of certain shares of the capital stock of the defendant bank. From a decree, on demurrer to the bill, in favor of the complainants, defendants appeal.
    Abstract of the Decision.
    1. Corporations, § 155*—when transfer of stock valid as between parties. As between the parties, a transfer of stock by delivery of the certificates with power of attorney or indorsed in blank passes title without transfer on the books of the company, even, when the by-laws of the company provide to the contrary.
    2. Corporations, § 153*—tohen blank transfer of stock may be filled in with name of remote transferee. A blank transfer of stock may be filled in with the name of a remote transferee whose name concerns only the purchaser of the stock.
    3. Corporations, § 156

      —what is duty as to transfer of stock on books and issuance of certificates. A bank is but the custodian of the shares of its capital stock, whose duty as such trustee it is to transfer on its books such shares to the owner of the actual title and issue to him certificates for the same.
    4. Corporations, § 156*—when duty to transfer stock and issue certificates enforceable in equity. The duty of a bank to transfer on its books shares of its capital stock to the actual owners and to issue to him certificates for the same may be enforced in a court of equity.
    5. Equity, § 146*—when bill not multifarious. Where a bill was filed by several complainants to compel the transfer of certain shares of the capital stock of the defendant bank, some to one complainant and some to others, based in part upon a single certificate in which all were interested, each owning a portion of the shares represented therein as transferee of the original holder of such certificate, held that such bill was not multifarious.

      Vause, Hughes & Kiger and E. A. Richardson, for appellants.
    Whitaker, Ward & Pugh, Edward C. Craig, Donald B. Craig and James W. Craig, Jr., for appellees.

      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 Cnmnlative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

6. Corporations—what is right of owner of certificate to have new and smaller certificates issued. The owner of shares of capital stock represented by a single certificate has the right to surrender such certificate and have new certificates made out for smaller numbers of shares in the names of any one whom he sees fit.

7. Corporations, § 154*—toho may join in suit to compel transfer of shares of stock. All owners of shares of capital stock represented by a single certificate may join in a suit to compel a proper transfer of such shares made upon the books of the company.

8. Appeal and error, § 760*—when affidavits not part of record not considered. The Appellate Court will not take notice of affidavits filed to show whether an assignment of error was presented or called to the attention of the trial court, but must decide the question raised upon the record before it.

9. ’Corporations, § 154 —when till to compel transfer of corporate stock on tooks sufficiently avers that complainant is assignee. Where the owner of certain shares of capital stock transferred and indorsed the certificate representing same to his daughter by her maiden name, and suit was brought by her in her married name, to compel transfer on the books of the corporation in which the bill alleged that such shares were so assigned and that such assignee was the owner’s daughter, and exhibits attached to and made a part of the bill stated that by such assignment complainant became the owner of such shares, held that there was sufficient averment that complainant was such assignee.


text:
    Marietta Kitchen, Appellant, v. George E. Weatherby, Appellee.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Pabent and child, § 39*—liability of parent for torts of child. A parent is not liable for the torts of a minor child.
    2. Fabent and child, § 39

      —when evidence insufficient to show that child had permission to use automobile. Evidence held insufficient to show that defendant’s son had general permission from defendant to use defendant’s automobile, in an action to recover damages for personal injuries sustained by plaintiff in a collision with defendant’s automobile while it was being driven by defendant’s son.
    3. Fabent and child, § 39*—when evidence insufficient to show liability of parent for negligence of son using father’s automobile. In an action to recover damages for personal injuries sustained by plaintiff in a collision with defendant’s automobile while it was being driven by defendant’s son, where there was no evidence whether said son was a minor or an adult, or that the car was being used on defendant’s business, or that the son had ever received' defendant’s permission to use the car, or was at the time of the accident using it with defendant’s knowledge or consent or had ever so used it, held that the evidence was insufficient to show defendant’s liability for the accident.

      Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Marietta Kitchen, plaintiff, against George E. Weatherby, defendant, to recover damages for personal injuries sustained by plaintiff in a collision between her automobile and defendant’s car. From a judgment for defendant on a directed verdict, plaintiff appeals.
    Redmon, Hogan & Redmon, for appellant.
    Mills Brothers, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    City of Monticello, Appellee, v. Ira Clodfelter, Appellant.
    (Not to be reported in full.)
    Appeal from the County Court of P'iatt county; the Hon. W. A. Doss, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action in debt by the City of Monticello, plaintiff, against Ira Clodfelter, defendant, to recover for violation by defendant of an ordinance of plaintiff as to intoxicating liquors. From a judgment for plaintiff upon two counts, one for selling such liquors and one for keeping a place where such liquors were sold, and assessing a fine of fifty dollars upon each count, defendant appeals.
    J. L. Hicks, for appellant.
    F. M. Shonkwiler, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Intoxicating liquobs, § 62*—when city has power to make ordinance regulating sale of. A city located in territory which has become anti-saloon territory under the Local Option Act has power to make an ordinance prohibiting the sale of intoxicating liquor within the city not inconsistent with that act and providing for a violation of its provisions.

2. Intoxicating liquobs, § 62*—when ordinance prohibiting sale of is valid. An ordinance of a city, located within anti-saloon territory, providing that any person selling intoxicating liquors within the city shall be fined not less nor more than certain amounts, and that any place where such liquors are sold or kept for sale shall be deemed a nuisance and the keeper of same fined not less nor more than certain amounts, held not to be inconsistent with the Local Option Act and a valid ordinance.

3. Juey, § 57a —when evidence insufficient to show incompetency of juror. Evidence held insufficient to show that a certain juror was mentally unbalanced to such an extent as to make him incompetent to act as such.


text:
    Otto Harrold, by Amos Harrold, Appellee, v. Clinton Gas & Electric Company, Appellant.
    (Not to be reported in full.)
    Appeal from the .Circuit Court of De Witt county; the Hon. Geobge A. Sentel, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Otto Harrold, a minor, by Amos Harrold, his next friend, .plaintiff, against the Clinton Gas & Electric Company and the National Telephone & Electric Company, defendants, to recover damages for personal injuries sustained by plaintiff from certain wires of the defendants in contact. From á judgment for plaintiff against the defendant Clinton Gas & Electric Company for $1,250, and for the defendant National Telephone & Electric Company on a directed verdict, defendant Clinton Gas & Electric Company appeals.
    Abstract of the Decision.
    1. Negligence, § 53

      —when contributory negligence of another no defense. A defendant is liable when guilty of the negligence charged without regard to whether the negligence of another also contributed to the injury.
    2. Negligence, § 223*—when instruction on liability where negligence of another contributes to injury, correct. In an action to recover damages for personal injuries, an instruction that to recover in the case it must be shown by the greater weight of the testimony that the negligent act or omission of the defendant was the cause which produced the injury, if any, but that it need not have been the sole cause, and that it was sufficient if it concurred with some other cause acting at the same time which, in combination with it, caused the injury, or that it set in motion a chain of circumstances and operated on them in continuous sequence unbroken by any new or independent cause, held to be correct.
    3. Damages, § 213*—when instruction in action for personal injuries not misleading. In an action to recover damages for personal injuries, where an instruction was to the effect that in assessing damages, upon finding for the plaintiff, the jury had the right to consider the character and extent of such injuries, if any, which were proven by the evidence, the pain and suffering endured, if any were proven, and the permanent character of the injuries, if the evidence showed the plaintiff was permanently injured, held that there was nothing in such instruction' nor in the evidence which could lead the jury to believe that they were authorized to assess damages for injury to plaintiff's earning power during his minority and in the instruction to mislead the jury into assessing damages on account of plaintiff's nervous condition shown in the evidence, in view of the further instruction that such damages could not be allowed.

      L. W. Ingham, Herrick & Herrick and F. K. Lemon, for appellant.
    E. J. Sweeney and L. O. Williams, for appellee.

      See Illinois Notes Digest, Vbls. 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 Eldredge

delivered the opinion of the court.

4. Damages, § 206*—when instruction erroneous as not conforming to evidence in action to recover for personal injuries. In an* action to recover damages for personal injuries, an instruction that the jury in assessing damages, on finding for the plaintiff, must estimate same from the facts and circumstances in proof and by considering them in connection with their knowledge, observation and experience in the ordinary affairs of life, held erroneous under a declaration alleging plaintiff had incurred expense of four hundred dollars in and about attempting to be cured where there was no evidence of any expense incurred by plaintiff but only that he had been treated by several physicians.

5. Damages, § 189*—necessity of proof of medical services. Medical services are capable of definite proof and if recovery is sought therefor, in an action to recover damages for personal injuries, such proof must be made and the jury have no right to assess such damages from their own knowledge, observation and experience in the affairs of life.

6. Damtages, § 250*—when excessive verdict cured by remittitur. In an action to recover damages for personal injuries, held that any error of the jury in assessing a considerable portion of the damages under an erroneous instruction was curable by remittitur.

7. Electricity, § 26*—when ordinance prohibiting entry on school grounds inadmissible in action against electric companies for negligent injuries. In an action by a minor child against two electric companies to recover damages for personal injuries sustained by plaintiff from wires of defendants’ in contact when he went, while at play in the street, upon certain school property to recover a ball which had bounced thereon, an ordinance of the city prohibiting any person from going upon property used for school purposes under a penalty, excepting those attending the school and others going on such property for the transaction of any lawful business, held to be properly excluded.

8. Infants, § 24*—liability for crime. A child eight years of age cannot be guilty of any crime or misdemeanor.

9. Damages, § 133 —when verdict excessive. In an action by a child eight years of age to recover damages for personal injuries, where the injuries consisted only of some deformity of the first joint of one finger, some pain and suffering, and several scars on the body not visible when plaintiff was clothed, a verdict for $1,250 held excessive to the extent of $400.


author: Mr. Justice Graves

text:
    Charles T. Stevenson et al., Appellants, v. Thomas W. Stevenson, Executor, Appellee.
    1. Wills, § 383

      —when contingent estate in remainder created. A clause in a will: “I desire that the following named nephews and nieces shall be paid the amounts herein designated, provided they are living at the time of the death of my wife,” held to create a contingent estate in remainder in the nephews and nieces and not a vested estate in remainder.
    2. Wills, § 495*—when shares of deceased devisees go into residuary fund. Under a will bequeathing certain amounts to certain persons, provided such persons are living at the time of the death of another person, held that if any of such devisees were not alive at the time of the death of the life tenant the shares designed for them would go into the residuary fund and pass to the residuary legatee.
    3. Wills, § 468*—what is effect of renunciation of will giving a life estate by widow. The only effect of the renunciation by a widow of a will giving her a life estate in the testator’s property on the funds of the estate would be to lessen the residuary estate by the amount of the property she took absolutely.
    4. Wills, § 395*—when postponed vested legacy accelerated. A postponed vested legacy will be accelerated by the renunciation of the life estate which precedes it.
    5. Wills, § 395*—when contingent legacy or remainder accelerated. A contingent legacy or remainder will not be accelerated by the renunciation of the life estate which precedes it unless such appears to have been the intention of the testator.
    Appeal from the Circuit Court of McLean county; the Hon. Colostiii D. Myebs, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 16, 1917.
    M. A. Brennan and Ralph J. Heffernan, for appellants.
    Barry & Morrissey, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellants filed a bill in chancery asking for a construction of the will of one John C. Stevenson, deceased, and other relief. It appears from the bill that the will in question, omitting the formal parts, is as follows:

“1st. It is my will that all my just debts be paid.
“2nd. I do hereby give, bequeath and devise unto my wife Ella A. Stevenson, all of my estate, both real and personal.
“3rd. I do hereby appoint and constitute my wife, Ella A. Stevenson, executrix of this my last will and it is my will that no bond be required of her as executrix.
“4th. My executrix is hereby fully empowered to execute all deeds or other conveyances that may be necessary in order to pay my debts or settle my estate. # * * # * * * *.#
“Whereas: I, John C. Stevenson, did on the 21st day of December, 1882, make my last will and testament, I do now, by this writing add this codicil to my said will to be taken as a part thereof.
“First: I desire that all my just debts be paid.
“Second: I desire that the sum of One Thousand Dollars be paid to my brother, Adlai E. Stevenson.
“Third: I desire that all my remaining property, both real and personal, shall be held for the benefit of my wife, Ella ‘A. Stevenson, and that all the income from said property shall be for her use and benefit so long as she shall live, and that any money on hands or in the bank at the time of my death, shall be given to her or used for her immediate wants.
“Fourth: On the death of my wife, I desire the sum of Three Hundred Dollars, to be set aside for the purchase of suitable markers or. stones for the graves on the cemetery lot in which I am buried.
'' Fifth: I also desire that the sum of Two Hundred Dollars be left in trust with the Peoples Bank of this city, the interest on which sum shall be used for the care of the cemetery lot.
''Sixth: I desire that the following named nephews and nieces shall be paid the amounts herein designated, provided they are living at the time of the death of my wife, viz.:
‘ ‘ To Charles T. Stevenson, the sum of Five Hundred Dollars.
“To James B. Stevenson, the sum of Five Hundred Dollars.
“To Ida Stevenson Hayes, the sum of Five Hundred Dollars.
“To Catherine McCaughey Brown, the sum of One Thousand Dollars.
“To Annie Stevenson Bullís, the sum of One Thousand Dollars.
“To Lettie McCaughey Snyder, the sum of Five Hundred Dollars.
‘ ‘ Seventh: I also will to Mrs. Anna M. Sweeney the sum of Five Hundred Dollars, provided she remains with my wife as nurse or attendant up to the time of Mrs. Stevenson’s death.
“Eighth: All of the remaining portion of my estate, both real and personal, I will, bequeath and devise to my brother Thomas W. Stevenson, and appoint him at the time of my death in conjunction with my wife as executor of my estate without bond, with power to buy, sell or lease my property as they may deem best.”

It further appears from the bill that Ella A. Stevenson renounced the provisions of the will and accepted certain property which was agreed upon by her and the representatives of the estate, in lieu of what was devised to her in said will.

The theory of the bill is that the effect of the renunciation by the widow of the provisions of the will is to accelerate the special bequests mentioned in the '■ sixth clause of the codicil to the will.

Appellee demurred to the bill for the specific reasons following:

“1st: The renunciation of Ella A. -Stevenson, the widow of John C. Stevenson, of the provision made for her by the third paragraph of the codicil and her receipt and acceptance of all the property that was due or coining to her under the statutory provision made for her in case of such renunciation, does not alter the time of payment of the legacies bequeathed in the sixth paragraph of the codicil.
“2nd: The legacies bequeathed by the sixth paragraph of said codicil are not payable until the happening of the contingency therein designated, and as such contingency has not come to pass, petitioners are not entitled to relief prayed for.
“3rd: The placing of the time of payment of the legacies at the death of Ella A. Stevenson was not made solely for the benefit of the wife of deceased, but also to protect the residuary legatee.
“4th: The will and codicil of John C. Stevenson are clear and unambiguous and express directly the intention of the testator in such a manner that they are not susceptible of more than one construction.”

The demurrer was sustained, complainants elected to stand by their bill, which was thereupon dismissed for want of equity.

The determination of .this case involves the construction of the sixth clause of the codicil to the will and the determination of the question whether the renunciation of the widow has accelerated the bequests to the persons named in that clause.

The construction of the clause mentioned requires a determination of whether the language employed in its opening paragraph, viz.: “I desire that the following named nephews and nieces shall be paid the amounts herein designated, provided they are living at the time of the death of my wife,” creates contingent or vested legacies.

“A vested remainder is one which throughout its continuance gives to the remainderman or his heirs the right to the immediate possession, whenever and however the preceding estate is determined.” Lachenmyer v. Gehlbach, 266 Ill. 11; Carter v. Carter, 234 Ill. 507.

A contingent remainder is one limited to take effect either to an uncertain person or upon an uncertain event, but it is not always true that a remainder which is subject to a contingency is a contingent remainder. If the contingency upon which the remainder depends is a condition precedent, the remainder is contingent; if it is subsequent, the remainder is vested though the happening of the condition subsequent may devest it. Hill v. Hill, 264 Ill. 219.

The contingency in the will before us is: “Provided they are living at the time of the death of my wife.” Equivalent expressions have been held to create contingent estates in the following cases:

In Starr v. Willoughby, 218 Ill. 485, the bequest was to such of the children of the testator “as may be living at that time. ’ ’

In Cummings v. Hamilton, 220 Ill. 480, the contingency was: “If he survives the life tenant.”

In Barr v. Gardner, 259 Ill. 256, the bequest was to the testator’s wife and at her death to his lineal heirs should there be any living, but, if not, then to the heirs of the testator’s blood.

In Haward v. Peavey, 128 Ill. 430, the language considered to be sufficient to create a contingent estate was: “To such of them as shall be living.”

The language referred to in the case at bar clearly creates a contingent estate in the nephews and nieces to whom specific bequests were given in the sixth clause of the codicil of the will, unless it be held that the postponement of these legacies was to let in the life estate of the widow created by the will. There is nothing in the will that would warrant such a holding. It is averred in the bill that the time fixed for the payment of the legacies mentioned in that clause was “solely for the benefit of the testator’s widow.”

That averment, however, is not an averment of fact but is merely a conclusion of the pleader, and its truth is not admitted by the demurrer. There is therefore in this record nothing from which the court could con-elude that the time fixed for the payment of these legacies was postponed for the benefit of the life tenant. On that state of record the clear and specific language of the will should prevail as against any naked presumptions that would result in defeating the manifest intention of the testator.

In Barr v. Gardner, 259 Ill. 256, the will created a life estate in favor of the wife of the testator for her maintenance and support with remainder over at her death to the testator’s lineal heirs if there should be any living, and if not, then to the heirs of his blood, and the court said: “There was no present fixed

right of future enjoyment in a determinate person or persons until the death of his wife, but the uncertainty was as to whether lineal heirs or heirs of the blood would take. The postponement was not for the purpose of letting in the life estate of the widow, but on' account of the uncertainty as to whether there would be, at the death of the widow, living lineal heirs. The remainder was contingent because it was limited to take effect to dubious and uncertain persons.”

The will before us creates a life estate in the widow of the testator, with specific bequests out of the remainder to certain named persons provided they are alive at the time of the death of the widow and life tenant. If those persons, or any of them to whom those bequests were made, were not alive at the time of the death of the life tenant, then the shares designed for them would under the law go into the residuary fund and pass to appellee, who is the residuary legatee. Crerar v. Williams, 145 Ill. 625; Gilliland v. Bredin, 63 Pa. St. 393. There was no present fixed right of future enjoyment in any determinate person until the death of the widow, in any of the sums of money so devised to the named nephews and nieces of the testator. It might go to the persons so named or it might go to appellee, the uncertainty being whether any of the nephews ánd nieces named would be alive when the death of the life tenant occurred. The postponement was clearly not for the benefit of the life tenant, but was for the benefit of the residuary legatee whose legacy would be increased by death of any of the nephews and nieces named before the death of the wife of the testator. The legacies to the nephews and nieces were, under the rulings of the Barr case, supra, contingent and could not vest until the death of the life tenant.

The only effect the renunciation by the widow of the provisions of the will had on the disposition of the funds of the estate was to lessen by the amount of the property she took absolutely; the residuary estate under the will was to go to appellee. If she had not renounced, he would have received at her death all of the estate except that which was applied to the payment of the special bequests. Since she has renounced the will he will take all at her death of the estate except what is applied to the payment of the special bequests, and except that part which the widow takes absolutely. With that exception the property is distributed under the provisions of the will. Marvin v. Ledwith, 111 Ill. 144; Dunshee v. Dunshee, 251 Ill. 405; Wakefield v. Wakefield, 256 Ill. 296.

While a postponed vested legacy will be accelerated by the renunciation of the life estate which precedes it, Northern Trust Co. v. Wheaton, 249 Ill. 606, a contingent legacy or remainder will not be so accelerated unless it appears that such was the intention of the testator.

From anything that can be discovered from the record before us, the bill was properly dismissed.

The decree dismissing the bill is affirmed.

Becree affirmed.


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    Charles D. Rodgers, Defendant in Error, v. Orah B. Ridgley, Plaintiff in Error.
    1. Pleading, § 150

      —what was purpose of Legislature in passing act relating to affidavits of defense. The purpose of the Legislature in passing in its present form section 55 of the Practice Act (J. & A. T 8592), relating to affidavits of defense as to the whole or a portion of the plaintiff’s demand, and providing that the plaintiff should have judgment for that portion of his demand to which no such affidavit should be filed and that the action should proceed as to the balance of such demand in dispute, was to narrow the issues to he tried and give notice to the^plaintiff what defenses he must be prepared to meet.
    2. Pleading, § 153*—what are requisites of affidavit of defense to portion of plaintiff’s demand. When a defense is presented, under section-55 of the Practice Act (J. & A. If 8592), providing that where an affidavit of defense is made to a portion of the plaintiff’s demand the action shall proceed as to such portion and that plaintiff shall be entitled to judgment, as by default for the balance of his demand, to only part of plaintiff’s demand, that part must be set out so fully and precisely that the court can determine what amount is admitted to be due and render judgment therefor, and a trial be had as to the contested part of the demand.
    3. Pleading, § 153*—when affidavit of defense insufficient. Defendant’s affidavit of defense held properly stricken from the files for insufficiency, as it did not purport to present a defense to plaintiff’s entire demand or definitely state what part of the demand was admitted to be just and correct or state facts sufficiently for the court to determine what part of such demand was admitted to be due and what part contested.
    Error to the Circuit Court of Piatt county; the Hon. William K. WkmnriELD, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Charles Mansfield, D. H. Glass and Whitaker, Ward & Pugh, for plaintiff in error.
    Charles C. LeForgee, William G. McGinley, George W. Black and Thomas W. Samuels, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.

This suit was begun to the June term of the Circuit Court of Piatt county, 1915, by the defendant in error to recover of plaintiff in error on five promissory notes signed by her.

Defendant in error filed a declaration containing five special counts and the common counts; each special count declared on a separate note. With this declaration an affidavit of the claim was filed stating the total amount due on all the notes to be $27,428.65.

After having filed numerous original and amended pleas, to all but one of which demurrer was sustained, and after filing two or more so-called affidavits of merits she confessed to be bad by taking leave to amend the same, plaintiff in error in December, 1915, filed still other original and amended pleas and a final amended affidavit of merits.

Because the last affidavit of merits as amended was considered insufficient, the court struck the same, and all pleas not already disposed of, from the files, and entered judgment in favor of defendant in error for the amount shown by the affidavit of claim to be due.

It is provided, among other things, by section 55 of the Practice Act of this State (J. & A. ft 8592), that:

“If the plaintiff in any suit upon a contract, express or implied, for the payment of money, shall file with his declaration an affidavit showing the nature of his demand, and the amount due him from the defendant, after allowing to the defendant all his just credits, deductions and set-offs, if any, he shall be entitled to judgment, as in case of default, unless the defendant, or his agent or attorney, shall file with his plea an affidavit, stating.that he verily, believes the defendant has a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demand, and specifying the nature of such defense, and if a portion specifying the amount * * *. If the affidavit of defense is to only a portion of the plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand, and the suit shall thereafter proceed as to the portion of the plaintiff’s demand in dispute as if 'the suit had been brought therefor. * * *”

The purpose of the Legislature in passing the section of the statute referred to in its present form was to narrow the issues to be tried and give notice to the plaintiff what defenses he must be prepared to meet. Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276; Perry v. Krausz, 166 Ill. App. 5. When a defense is presented to only part of the demand, that part must be set out so fully and precisely that the court can determine what amount is admitted to be due and render judgment therefor, and a trial be had as to the contested portion of the demand.

The affidavit that was stricken from the files does not meet the requirements of that section because it does not purport to present a defense to the entire demand, nor is it definitely stated therein what part of the demand is admitted to be just and correct. Neither are the.facts averred sufficient to render it possible for a court to determine what part of the claim is admitted to be due and what part of it is contested.

The Circuit Court properly struck the pleas and affidavit from the files and rendered judgment as in cases of default.

The affidavit was insufficient in other respects and most, if not all, of the pleas were bad, but no us'eful purpose would be subserved by a discussion of those questions.

The judgment of the Circuit Court is affirmed.

Judgment affirmed,


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    Edward F. Trego, Trustee, Appellee, v. Estate of James A. Cunningham, Deceased, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    I. Executors and administrators, § 237

      —when claim not prematurely filed or contingent. Where the maker and three out of six joint indorsers of certain notes were insolvent, and two of the others paid such notes partly by cash and partly by new notes given subsequently to the death of the third solvent indorser, and filed a claim against the latter’s estate within one year after letters of administration were issued therein for contribution to such payments made on their joint obligation, held that such claim would not be subject to objection that it was prematurely filed, or contingent or payable only out of subsequently discovered assets.

      Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Claim by Edward F. Trego, trustee, for the use of William Moore and the estate of A. H. Trego, deceased, claimant, against the estate of James A. Cunningham, deceased, defendant, for contribution to approximately $300,000 claimed to have been paid by William Moore and A. H. Trego in liquidation of certain notes on which they and James A. Cunningham and others were indorsers. From a judgment for claimant for $113,490.67, defendant estate appeals.
    For decisions on a former appeal, see Trego v. Cunningham’s Estate, 267 Ill. 367, rev’g 188 Ill. App. 70.
    Dyer & Dyer, Lindley, Penwell & Lindley, W. M. Acton and Rearick & Meeks, for appellant.
    H. M. Steely, J. B. Mann and H. M. Steely, Jr., for appellee.

      See Illinois Notes Digest, Vola. 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 Graves

delivered the opinion of the court.

2. Executors and administrators, § 264*—when written pleadings unnecessary. In a suit to compel contribution by the estate under a joint obligation of the decedent and the claimant originally begun by filing a claim in the Probate Court, no written pleadings would be necessary to present questions as to the premature filing of the claim or its contingent character, or that it was only payable out of subsequently discovered assets.

3. Executors and administrators, § 101*—when duty of executors to malee defense to a claim. It is the duty of executors of an estate to make defense to a claim against the estate as to its premature filing or contingent character, or that it is payable out of subsequently discovered assets at the first trial in the Probate Court and in all courts through which the case may pass.

4. Appeal and error, § 1725*—when decision on former appeal res judicata. The holding by the Supreme Court on appeal from a judgment on a former trial that certain claims presented in the Probate Court which were objected to on a second trial as being prematurely filed should be allowed, and certain other claims could be allowed if certain facts not involving the time of their presentation were shown, held to be res judicata that such claims were duly and timely filed, on appeal from a judgment on such second trial.

5. Judgment, § 442*—what doctrine of res judicata embraces. The doctrine of res judicata embraces not only what has been actually determined in the former suit but extends to any other matter which might have been raised and determined in it.

6. Contribution, § 1 —when joint indorsers liable to contribute to payment of note. The liability of joint indorsers on a note to contribute to payment of the note made by part of them, held not to be affected by the fact such note was not by its terms due at a time certain and was not negotiable where such- indorsers were original joint obligors.

7. Contribution—when evidence of indebtedness to corporation of joint obligors on note of corporation inadmissible. Where two of three joint obligors and indorsers on the note of a certain corporation filed a claim against the estate of the third joint obligor to compel contribution to a payment made by such two joint obligors of such note, evidence that the latter were indebted to the corporation for unpaid subscriptions and for money borrowed, held inadmissible.


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    Polly Dunham, Plaintiff in Error, v. Estate of Abraham Stephens, Deceased, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1818

      —when decision on appeal is conclusive on second trial. The holdings of the Appellate Court on facts admitted by a demurrer are conclusive on the Circuit Court on a trial of the same case on the merits if the same facts are established' by the evidence.

      Error to the Circuit Court of McLean county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Petition by Polly Dunham, plaintiff, against the estate of Abraham Stephens, deceased, defendant, to establish plaintiff’s right as half-sister and heir at law of the decedent to one-quarter of a certain fund saved to the defendant from the amount devised to Mary Ella Chapman and Anna D. 0 ’Harra by the decedent, by the settlement and compromise of a certain suit to contest the decedent’s will. From a decree dismissing the petition, plaintiff brings error. For case on prior hearing decided by the Appellate Court, see Dunham v. Stephens’ Estate, 190 Ill. App. 554, reversing a decree dismissing the petition on demurrer and remanding.
    Thurman, Hume & Kennedy and Livingston & Bach, for plaintiff in error.
    Sterling & Whitmore and De Mange, Gillespie & De Mange, for defendant in error.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Appeal and ebrob, § 1726*—vjhen decision on former appeal conclusive on Appellate Court. The holding of the Appellate Court on facts admitted by a demurrer are conclusive on that court on a review of the record on a trial of the same case on the merits if the same facts are established by the evidence, notwithstanding there has been a change in the- personnel of the court.

3. Appeal and ebrob, § 1152 —how Appellate Court may review its own holdings. The only way the Appellate Court can sit in review of its own holdings is on a petition for a rehearing filed in the proper time.

4. Executors and administrators—when evidence sufficient to show existence of funds subject to distribution. Evidence held sufficient to show that there was saved by the settlement of a certain will contest from certain legacies a certain amount of intestate funds subject to distribution, in a suit by an heir at law to establish a right to a portion of such funds.


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    Stacey Van Valkenburg, Appellee, v. Granite Live Stock Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge,' presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Stacey Van Valkenburg, plaintiff, against the Granite Live Stock Insurance Company, a corporation, defendant, to recover on a policy in defendant company insuring plaintiff’s mare. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Insurance, § 439

      —when provision for notice to insurer of accident to or illness of animal is valid. A provision in a livestock insurance policy that there should be no liability of the insurer thereunder for a loss if the assured in case of accident or sickness to the insured animal should fail to render “at once” notice to the insurer of such sickness or accident, with the name and address of the veterinary employed, held to be a reasonable, material and enforceable part of the contract of insurance.
    2. Insurance, § 439*—what is effect of failure to comply with provision in policy as to notice of sickness of or accident to animal. Under a provision in a live-stock insurance policy that there should be no liability of the insurer thereunder for a loss if the assured in case of accident or sickness to the insured animal should fail to render “at once” notice to the insurer of such sickness or accident, with the name and address of the veterinary employed, held that the assured was bound to give such notice “at once” upon such sickness or accident under penalty upon failure to do so of a want of liability on the part of the insurer under the policy if death should result from such sickness or accident.
    3. Insurance, § 439*—what is meaning of words “at once” in provision in policy for notice of sickness of or injury to animal. The words “at once” used in a live-stock insurance policy, providing that the assured should give notice “at once” to the insurer of any sickness or accident to the insured animal, held to mean what the average person would understand them to mean, namely, promptly, as soon as could reasonably be done, and not a full week after such sickness or accident.
    4. Insurance, § 666*—what is evidence of knowledge 6y insured of failure to give prompt notice of sickness of animal. In an action to recover on a live-stock insurance policy, requiring the assured to give notice to the insurer “at once” of any sickness or accident to the insured animal, the fact that the assured when he filed his proofs of death of the insured animal stated that it first showed signs of sickness on July 6th, when the proof showed conclusively .that it first showed signs of sickness on July 2nd and continued to grow steadily worse until its death, held to be strongly suggestive of the fact that the assured appreciated that notice of sickness bad not been promptly given.

      Thomas J. Graydon and Lindley, Penwell & Lindley, for appellant.
    Acton & Acton, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

5. Insurance, § 441*—what is not excuse for noncompliance with provision for notice of sickness of animal. Under a provision in a live-stock insurance policy requiring the assured to give notice to the Insurer “at once” of any sickness or accident to the insured animal, the fact the assured was away from home when the animal was taken sick would not excuse him from performing such requirement; if he was not so situated, for any reason, that he could personally perform his contract in respect to giving such notice at once, It would be his imperative duty to arrange with others to perform it for him.

6. Insurance, § 666 —when evidence sufficient to show failure to give required notice of sickness of animal. Evidence held sufficient to show that the plaintiff did not give the defendant notice of the sickness of the insured animal within the time required of him by his contract, in an action to recover under a live-stock insurance policy for'the death of the insured animal.


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    Stacey Van Valkenburg, Appellee, v. Western Live Stock Insurance Company, Appellant.
    (Not to The reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Stacey Van Valkenburg, plaintiff, against the Western Live Stock Insurance Company, a corporation, to recover on a live-stock insurance policy. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    Insurance, § 666

      —when evidence sufficient to show failure to give required notice of sickness of animal. Evidence held sufficient to show that plaintiff did not give defendant notice of the sickness of the insured animal within the time required of him by his contract, in an action to recover under a live-stock insurance policy for the death of the insured animal.
    This policy was upon the same animal insured in the case of Van Valkenburg v. Granite Live Stock Ins. Co., ante, p. 28, the opinion in which was filed the same day.
    Thomas J. Graydon and Lindley, Penwell & Lindley, for appellant.
    Acton & Acton, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


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    The People of the State of Illinois for use of State Board of Health of the State of Illinois, Appellant, v. James E. Kane, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Physicians and surgeons, § 8

      —when State Board of Health has right to sue for and recover penalties for practicing without certificate. The State Board of Health has the right to sue for and recover the penalties provided in Rev. St. ch. 91, sec. 9 (J. & A. H 7390), relating to persons practicing medicine or treating human ailments without a certificate issued by that .board, and providing that such persons shall forfeit and pay to the People of the State of Illinois for the use of that board certain sums to be recovered in an action of. debt.
    Appeal from the County Court of Macon county; the Hon. John H. McCoy, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by the People of the State of Illinois for the use of the State Board of Health of the State of Illinois, plaintiff, against James E." Kane, defendant, to recover the fines and penalties provided by law for practicing medicine without having a license from the State Board of Health so to do. From a judgment for defendant, plaintiff appeals.
    P. J. Lucey, Jesse L. Deck and C. F. Evans, for appellant.
    Whitley & Fitzgerald, for appellee.

      See Illinois Notes Digest, Tols. XI to XT, and Cumulative Quarterly, same topic and section number.

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Physicians and subgeons, § 5 —when person is practicing medicine. One who advertises, professes, offers, undertakes or pretends to undertake to diagnose, treat, heal or benefit a patient, regardless of whether that patient is or is not suffering from any actual ailment or disease, and who charges or accepts compensation therefor, is practicing medicine within the meaning of Rev. St. ch. 91, sec. 9 (J. & A. 1f 7390), providing that any person shall be regarded as practicing medicine within the meaning of that statute who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury or deformity of another.

3. Physicians and subgeons, § 8*—when evidence sufficient to show that person is practicing medicine. Evidence held sufficient to show that defendant was practicing medicine within the meaning of Rev. St. ch. 91, sec. 2 (J. & A. If 7378), providing that it shall be unlawful for any person to practice medicine in any of its branches without a license so to do from the State Board of Health, and section 9 (J. & A. If 7390), providing that any person shall be regarded as practicing medicine within the meaning of the statute who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury or deformity of another, where the defendant undertook or pretended to diagnose, treat and cure the trouble of his patients by a general formula of diagnosis that “the bones or vertebra of your back are out of their normal or proper position, etc.,” and advertised and assumed or pretended to be able to “place those bones of the back in their normal or proper position,” the result of so doing to be health, such adjustment being or being pretended to be by applying pressure and manipulation with his hands.


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    Abraham B. Steinhour, Appellant, v. Dora Merrilees et al., Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Wills, § 383

      —when estates in reversion and contingent remainder created. A will devising the testator’s estate in part to a certain daughter for life, and upon her death such part to the heirs of her body or their survivors, and providing that in case of the death of any of the testator’s daughters leaving no heirs of her body such daughter’s share should descend to the testator’s surviving daughters, held to create estates in reversion and contingent remainder based on the life estate.
    2. Estates, § 11*—when life estate and reversion merged in same person 6y conveyance. When the members of a class who are by the terms of a will to take the remainder at the death of a life tenant cannot be ascertained until that event takes place, and the life tenant and the owner of the reversion convey their interests to the same person, the life estate and the reversion merge in such person.

      Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harms, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Abraham B. Steinhour, plaintiff, against Dora Merrilees and others, defendants, to recover $1,200 advanced by plaintiff under a contract with defendants for the purchase of certain real estate. From a judgment for defendants, plaintiff appeals.
    Humphrey & Anderson, for appellant.
    Beach & Trapp, for appellees.

      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 Graves

delivered the opinion of the court.

3. Remainders, § 16*—when contingent remainder defeated. A contingent remainder is defeated by merger of the life estate and the reversion.

4. Appeal and error, § 1471 —when admission of evidence of oral modification of contract is harmless error. In an action to recover money advanced under a contract for the purchase of real estate conditioned upon defendant furnishing a deed conveying good title, the admission of evidence that a modification of the contract was made in a conversation between the parties whereby it was agreed that certain deeds tendered should be accepted as conveying good title, held, even if erroneous, to be harmless error where the deeds tendered were sufficient to convey good title.

5. Appeal and error, § 384*—when objections may not be availed of on appeal. Objections not presented to or passed upon by the trial court cannot be availed of on appeal.


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    O. P. Simpson, Administrator, Appellant, v. Artamisa Roberts and J. O. Roberts, Conservator, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by O. P. Simpson, administrator of the estate of William Simpson, deceased, plaintiff, against Artamisa Roberts and J. 0. Roberts, conservator of Artamisa Roberts, feeble-minded, defendants, to recover money claimed to have been expended and services claimed to have been rendered for Artamisa Roberts while the decedent was conservator for her over and above the amount received by him for her use. From a judgment for defendants, plaintiff appeals.
    Abstract of the Decision.
    1. Evidence, § 228

      —what is necessary -foundation for proof of conservator's reports. In an action by the administrator of the estate of a conservator for a feeble-minded person to recover for moneys expended and services rendered by the decedent for his ward, certain reports filed in the County Court by or for the decedent of his acts and doings as such conservator, held to be incompetent evidence, even prima facie, of the facts contained in such reports without proof of an adjudication of the correctness of such reports by the court in which they were filed.
    2. Evidence, § 228*—when proof of adjudication of correctness of reports of conservator insufficient. Proof of an adjudication of the correctness of certain reports filed by a conservator of a feeble-minded person in the County Court of his acts and doings as such conservator can only be made by the record of that court, and a mere memorandum on such a report to the effect that it had been approved by the “County Judge” would be insufficient as proof of such adjudication, in an action wherein such reports were introduced in evidence to establish payments made or services rendered by such conservator.
    3. Guardian and ward, § 1*—how conservator may not act. There is no law authorizing a conservator to act by attorney in fact.
    4. Guardian and ward, § 74*—what not proper charge against ward. The funeral expenses of the mother of a ward under conservatorship are not primarily a necessity of nor a proper charge against the ward.
    Logan G. Griffith and Buckingham, McDavid & Monroe, for appellant.
    J. C. Willard, for conservator.
    Truman E. Ames, conservator ad litem.

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

   Mr. Justice Graves

delivered the opinion of the conrt.


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    Ollie Sampson, Plaintiff in Error, v. Retta L. Harshman and Clement E. Harshman, Defendants in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    Damages, § 191

      —when determination of question for jury. In an action to recover damages for a sprained ankle, where there was no evidence that plaintiff did not in fact receive his contract wages for the time he was laid up after the accident, or that his failure to work during that time testified to was due to the accident, or that he expended any money for medical services, medicine or anything else in and about being healed, held that the amount of damages plaintiff was entitled to receive was a matter of estimate, not of definite proof, and was peculiarly within the province of the jury to determine.
    Error to the Circuit Court of Moultrie county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Ollie Sampson, plaintiff, against Eetta L. Harsbman and Clement E. Harshman, defendants, to recover damages for personal injuries sustained by plaintiff by the wagon in which he was riding being upset by a runaway team belonging to one of defendants, whereby plaintiff’s ankle was sprained. From a judgment for plaintiff for twenty-five dollars, plaintiff brings error.
    J. K. Martin and Jennings & Elder, for plaintiff in error.
    E. J. Miller, for defendants in error.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    A. R. Rich, Administrator, Defendant in Error, v. Blueford Wilson and William Cotter, Receivers, Plaintiffs in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 775

      —when instruction as to giving of warning signals 6y train approaching crossing is erroneous. In an action to recover damages for death due to a collision between an automobile' in which the decedent was riding and a railroad train, an instruction that the law required the defendant railroad to have a bell ringing continuously or a whistle sounding continuously on the engine of a train for eighty rods immediately before reaching a public crossing, held to be erroneous, as the railroad company had the option of sounding the bell part of the time and the whistle part of the time or of sounding the bell or the whistle all of the time, but was not required to sound either all of the time.

      Error to the Circuit Court of Jersey county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by A. R. Rich, administrator of the estate of Rizpah Hudson Rich, deceased, plaintiff, against Blue-ford Wilson and William Cotter, receivers of the. Chicago, Peoria & St, Louis Railroad Company, defendants, to recover pecuniary damages for the benefit of the next of kin because of the death of a little girl four years old, caused by a collision between defendants’ train and. an automobile in which the decedent was riding driven by her mother. Prom a judgment for plaintiff for $5,000, defendants bring error.
    H. L. Child, for plaintiffs in error; P. B. Warren, of counsel.
    W. J. Chapman and D. J. Sullivan, for defendant in error.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Death, § 73*—when instruction on erroneous. In an action to recover damages for death due to a collision between an automobile in which decedent was riding and a railroad train, held that an instruction that the jury “should fix such damages at such amount as they may believe from the preponderance of the evidence will justly and fairly compensate the next -of kin” was erroneous.

3. Death, § 67 —when verdict for death of child excessive. In an action to recover damages for the death of a four-year-old child for the benefit of the next of kin, where there was no evidence of whether the child was well and strong or sickly and weak, or whether it was bright or foolish, or whether its characteristics were such as would likely render it a burden or a benefit to the next of kin, a verdict of $5,000 damages held to be excessive.


text:
    Fred Baber, Trustee, Appellee, v. Erastus Hurst et al., Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Edgar county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by Fred Baber, trustee, complainant, against Erastus Hurst and others, defendants, to restrain the collection of a certain judgment and to vacate the same. From a decree in favor of the complainant, defendant Hurst appeals.

      Abstract of the Decision.
    1. Appeal and ebbob, § 852

      -—when recital in certificate of evidence in suit in equity is improper. Where a certificate of evidence signed by the trial judge contained a purported order for an appeal reciting that the certificate of evidence should be “presented” within ninety days, held that such recital was improper and inoperative, in a suit in chancery.
    2. Appeal and ebbob, § 853*—what is function of certificate of evidence in chancery suit. The sole function of a certificate of evidence in a chancery suit is to truly set forth the evidence offered, rejected, received and considered on the hearing, and any attempt to make it subserve any other purpose is without warrant of law.
    3. Cleeks of cotjets, § 5*—what clerk required to enter of record in chancery suit. All written motions and the orders made thereon are matters to be entered of record by the clerk in a chancery suit.
    4. Appeal and ebbob, § 958*—when court of review bound by clerk’s record. A court of review is bound by the clerk’s record of written motions and orders made thereon entered by him on such record.
    5. Appeal and ebbob, § 862*—when certificate of evidence stricken from record. A certificate of evidence should, on motion, be stricken from the record where it is not filed within the time fixed in the order allowing appeal.
    S. J. Gee and T. H. Cunningham, for appellant.
    W. H. Clinton and O’Hair & Rhoads, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    F. J. Athon, Appellant, v. W. R. McAllister, Sheriff, Appellee.
    1. Fraudulent conveyances, § 15

      —when transfer within Bulk Sales Act. A transfer by a party of certain office furniture, horses, colts, wagons, trucks, drays, harness, farm machinery, hogs, pigs, growing corn and the like, used or produced either in the dray and transfer business or in the business of farming in which such party had been engaged, held to be within the Bulk Sales Act of 1913, Rev. St. ch. 121a, sec. 1 [Cal. 111. St. Supp. 1916, f 10021(1)].
    2. Execution, § 92*—when levy may 6e made upon personalty. A sheriff may levy an execution in his hands upon personal property after he has levied the same on real estate and before the real estate is sold under such levy.
    Appeal from the Circuit Court of Edgar county; the Hon. John H. Maesiiale, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    W. H. Clinton and O ’Hair & Rhoads, for appellant.
    Emery Andrews, James K. Lauher and Stewart W. Kincaid, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellee, as sheriff of Edgar county, levied on certain real estate and later on some personal property by virtue of an execution issued on a judgment against one Moreau Athon and S. L. Sheets and in favor of Philip Bibo.

Appellant replevied the personal property levied on, claiming that Moreau Athon had transferred it to him in consideration of the payment by appellant of a certain promissory note of the said Moreau Athon, held by the First National Bank of Paris, Illinois, for $12,-075, on which appellant was surety.

Moreau Athon was engaged in the dray and transfer business and in farming. The personal property conveyed had all been used or produced in one or the other of these businesses and consisted of office furniture, horses, colts, wagons, trucks, drays, harness, farm machinery, hogs, pigs, growing corn and the like.

The Circuit Court tried the ease without a jury and held that the transfer of the property was void under the provisions of the Act of the General Assembly of the State of Illinois, approved May 3, 1913, known as the Bulk Sales Act, and entered judgment for the defendant and ordered the property returned to the defendant to be sold under the execution by virtue of which it was levied upon.

Section 1 of chapter 121a, Rev. St. [Cal. Ill. St. Supp. 1916, 10021(1)], known as the Bulk Sales Act, provides, so far as its provisions are important here, as follows:

“That the sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise, or merchandise and fixtures, or other goods and chattels of the vendor’s business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business shall be fraudulent and void as against the creditors of said vendor, unless the said vendee shall, in good faith, at least five days before the consummation of such sale, transfer or assignment demand and receive from the vendor a written statement under oath of the vendor or a duly authorized agent of the vendor having knowledge of the facts, containing a full, accurate and complete list of the creditors of the vendor, their addresses and the amounts owing to each as near as may be ascertained, and if there be no creditors, a written statement under oath to that effect; and unless the said vendee shall at least five days before taking possession of said goods and chattels and at least five days before the payment or delivery of the purchase price, or consideration of any evidence of indebtedness therefor, in good faith, deliver or cause to be delivered or send or cause to be sent personally or by registered letter properly stamped, directed and addressed, a notice in writing to each of the creditors of the vendor named in the said statement or of whom the said vendee shall have knowledge of the proposed purchase by him of said goods and chattels and of the price, terms and conditions of such sale * * *.”

Appellant presents but two questions for our determination: First. Does the Bulk Sales Act apply to the facts in this case? Second. Had the sheriff a right to levy the same execution on personal property after he had levied the same on real estate and before the real estate had been sold, or, in other words, was the levy of the execution on real estate a satisfaction of the judgment until by a return of the execution unsatisfied the contrary appears ?

Appellant insists that the determination of the first question should be governed by what is said in Heslop v. Golden, 189 Ill. App. 388, and H. S. Richardson Coal Co. v. Cermak, 190 Ill. App. 106.

The court in the case of H. S. Richardson Coal Co. v. Cermak, supra, seems to rest its holding on a construction of the statute here under consideration that it does not apply to the sales of all kinds of personal property but was intended to apply only to such property as was a part of a “business or trade where, in the ordinary course and regular prosecution thereof, the goods or chattels, whatever they might consist of, are not ordinarily and regularly sold by the owner in bulk,” and in Heslop v. Golden, supra, the statute was held to apply only to property “used in connection with the business' of selling merchandise, commodities or other wares.”

A former Bulk Sales .Act was héld unconstitutional and void in Charles J. Off & Co. v. Morehead, 235 Ill. 40, because that act was construed to apply only to merchants selling their stocks in trade, and to be, therefore, special legislation. The holdings in the Heslop and Richardson cases, supra, seem to be an application of the principles announced in the Morehead case, supra, to the present Bulk Sales Act. We are driven to the conclusion that the present act is not faulty in the-respect which the Supreme Court held caused the former act to be void.

The present act was passed shortly after the opinion in the Morehead case was handed down, and the Legislature in passing it evidently intended to obviate in the new act the things that were fatal to the old one. Section 3 of the Act now in force [Cal. Ill. St. Supp. 1916, 10021(3)] is as follows:

“Vendors and vendees under this act shall include corporations, associations, copartnerships and individuals, who shall be party to any sale, transfer or assignment of goods and chattels in bulk. But nothing contained in this act shall apply to sales by executors, administrators, receivers, trustees in bankruptcy, or by any public officer under judicial process nor to sales of exempt property or any sale or transfer made in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business, nor to sales made in good faith at public auction, where notice of such sale is given in a newspaper of general circulation within the county where such sale is made, at least ten days before such sale or by posting of notices in at least five public places at least ten-days before said sale.”

The opinion in G. S. Johnson Co. v. Beloosky, 236 Ill. 363, was written by the same learned justice of the Supreme Court who wrote the opinion in Charles J. Off & Co. v. Morehead, supra, and after calling attention to the difference in the language of the two acts the court holds that the last act obviates the objectionable features in the first one, because it “prohibits the sale of any goods and chattels in bulk, otherwise than in the ordinary course of trade.”

In Page v. Wright, 194 Ill. App. 149, a sale of a livery stock was held to be within the prohibitions of the Bulk Sales Act. The judgment of the Appellate Court in that case was reviewed-by the Supreme Court on a petition for certiorari, which was denied.

It cannot be denied that the sale of the property in this case was in bulk, neither can it be claimed that the sale was in the ordinary course of trade, or that any attempt was made to comply with the provisions of the Bulk Sales law. The Circuit Court was clearly right in holding that the attempted transfer of the goods here involved from Moreau Athon to appellant was void, and that appellant acquired no rights thereby as against the creditors of Moreau Athon.

The contention that by levying the execution on real estate the right to levy on personal property was lost is answered adversely in Everingham v. National City Bank of Ottawa, 124 Ill. 527.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    John R. Myers, Appellee, v. Modern Woodmen of America, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by John R. Myers, plaintiff, against the Modern Woodmen of America, defendant, to recover on a fraternal benefit certificate as the beneficiary, named therein issued by the defendant to Henry M. Myers, deceased. From a judgment for plaintiff for $2,058, defendant appeals.
    Abstract of the Decision.
    1. Insubance, § 825

      —what is right of holder of benefit certificate to change beneficiaries. A member of a fraternal beneficial association has the undoubted right during his lifetime to change the beneficiaries named in his original certificate.
    2. Insubance, § 827*—when attempted change in beneficiary in benefit certificate becomes effective. No attempted change in the beneficiary named in a benefit certificate issued by a fraternal beneficial association will be effective until a new certificate- has been issued during the lifetime of the member in which a new beneficiary is named.
    3. Insubance, § 823*—when equitable rule as to change of beneficigries inapplicable in action at law. The equitable rule that when a member of a fraternal beneficial association has done all that he can do to change his beneficiary it will be regarded as done has no application in actions at law where the distinction between law and equitable jurisdiction is preserved.
    4. Insurance, § 822*—when beneficiaries have vested, rights in benefit certificate. The beneficiaries named in a certificate issued by a mutual beneficial association have no vested rights therein until the death of the member.
    5. Insurance, § 822*—when rights of beneficiary in benefit certificate attach. The .rights of the beneficiary named in a certificate of membership in a mutual beneficial association attach immediately upon the death of such member.
    Truman Plantz and George G. Perrin, for appellant.
    Chester A. Smith, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Thomas A. McMahon, Appellant, v. Selena Crone, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Trial, § 153

      —when determination of weight of evidence is for jury. The evidence as to the claim sued on being conflicting, held that it was the province of the jury to weigh the evidence and pass upon the credibility of the witnesses.
    2. Bills and notes, § 443*—when evidence sufficient to show failure of consideration. Evidence held sufficient to support the finding in favor of the defendant, in an action on a note claimed in defense to have been without consideration and not to have been delivered, and on a payment by plaintiff to defendant claimed by plaintiff to have been a loan to defendant and by defendant to have been payment of a loan by defendant to plaintiff.
    Appeal from the Circuit Court of Greene county; the Hon. Nob-man L. Jones, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Thomas A. McMahon, plaintiff, against Selena Crone, defendant, to recover on a promissory note amounting, with interest, to $266.88, and a loan of $41. From a judgment for defendant, plaintiff appeals.
    Thomas A. McMahon and Sumner & Reardon, for appellant.
    Frank A. Whiteside, 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 Graves

delivered the opinion of the court.

3. Assumpsit, action of, § 88 —whqn evidence as to making of loan is admissible. In an action to recover money claimed to have been loaned defendant, where it was claimed in defense that the money was a repayment by plaintiff of a loan to him by defendant, evidence as to the amount of the claimed loan by defendant to plaintiff and other evidence tending to show that such loan had been made, held to be properly admitted as corroborating evidence in support of such defense.


text:
    Frank L. Trutter, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Frank L. Trutter, administrator of the estate of Joel Wilkerson, deceased, plaintiff, against the Chicago & Alton Railroad Company, defendant, under the Federal Employers’ Liability Act to recover on account of the death of decedent from injuries received while he was engaged in defendant’s employ as car inspector. From a judgment for plaintiff for $4,900, defendant appeals.
    Patton & Patton, for appellant; Silas H. Strawn, of counsel.
    Gullett & Gullett, A. M. Fitzgerald and W. A. Ruegg, for appellee.

      Abstract of the Decision.
    Master and servant, § 177

      —when railroad company not guilty of negligence in shunting cars on switching track. In an action under the Federal Employers’ Liability Act to recover for the death of defendant’s employee as car inspector on defendant’s railroad, where there was no proof showing how the decedent was injured, or what he was doing when injured or what car ran over him, and no one saw him injured, and he was last seen alive hy an alleged vice principal, who, while on his way out of the switching yard, observed that some cars which were being shunted on a switching track had the air hose thereon uncoupled and started to couple them, but upon seeing the decedent approaching assumed that he was about to couple the hose and turned and left the yards without knowing of the accident to the decedent, who was found after the accident on another track, and the proof showed the usual and customary manner of placing cars in making up trains in the yards where decedent was injured was to shunt them in and that the decedent knew of such manner of placing cars, held that defendant was guilty of no negligence in connection with the circumstances resulting in the decedent’s death.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Mary M. D. Cory et al., Appellants, v. City of Hillsboro, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Montgomery county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by Mary M. D. Cory and others, complainants, against the City of Hillsboro, defendant, for injunction to restrain defendant from rebuilding a certain highway dyke or grade washed away by a flood and to require defendant to remove such dyke or grade as an obstruction to the- natural flow of the water. From a decree denying the relief asked and finding the complainants guilty of laches as to removal of the existing grade, complainants appeal.
    Abstract of the Decision.
    1. Equity, § 73

      —what constitutes laches. Laches is negligence or omission to assert a right.
    2. Equity, § 73*—what constitutes laches. Laches, in a general sense, is the neglect for an unreasonable and unexplained length of time to do that which could and should have been done earlier, if at all.
    3. Equity, § 74*—what is rule as to determination of laches. There is no absolute rule by which to determine what constitutes laches, but it depends on the circumstances of each particular case.
    4. Equity, § 79*—what is.nature of laches as defense. Laches is an equitable defense and is allowed to do justice between the parties under all the circumstances without regard to the statute of limitations or the passage of any definite period of time.
    5. Equity, § 74*—discretion of court as to determination of laches. What will constitute laches in a given case rests largely in the conscience and discretion of the court.
    6. Appeal and ebbob, § 1350*—when decision of court as to what constitutes laches not disturbed. Unless the discretion of the court in determining the question of laches in a case is abused it 'will not be interfered with by a court of review.
    7. Equity, § 74*—when delay in bringing suit is bar to recovery. Failure to use reasonable diligence in bringing a suit to enforce a right after the facts are known to a complainant is fatal to his right to recover.

      William Abbot and Hill & Bullington, for appellants.
    J. M. Baker, for appellee; Lane, Dryer & Brown, of counsel.

      See Illinois Notes Digest, Vola. 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 Graves

delivered the opinion of the court.

8. Equity, § 78 —when delay in filing suit for injunction against city to require removal of grade is fatal. Where a city unlawfully raised the grade of a certain highway several feet above the natural surface and complainants had personal knowledge of such grade, and that a great amount of work was being done and money expended by the city in raising such highway and they made no effort to prevent such grading for fifteen years until the time of filing suit against the city for an injunction to require removal of such grade, held that the finding in such suit that complainants had slept on their rights and decree denying such injunction were not an abuse of the court’s discretion.