text:
    Alleanza Italiana, Corporation, Appellee, v. Carmela Papa, Appellant.
    Gen. No. 22,508.
    (Not to be reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court.
    Affirmed.
    Opinion filed May 1, 1916.
    Rehearing denied May 15, 1916.
    Statement of the Case.
    Bill of interpleader by Alleanza Italiana, a corporation, complainant, against Carmela Papa and others, defendants.
    It appeared that the complainant is a benevolent association which insured the life of Vincenzo di Bernardino and issued a certificate for $1,000 thereon, in which the defendant Carmela Papa was named as beneficiary. Vincenzo di Bernardino died and Carmela Papa commenced suit in the Municipal Court of Chicago against complainant and obtained judgment against it for $1,000, the amount of the certificate. ■
    Vincenzo di Bernardino left a son, the defendant Tarquinius di Bernardino, who asserted a claim and interest in the money due upon the certificate, and W. M. Johnston and W. S. Johnston claimed $65 of that amount.
    Complainant filed the bill of interpleader, making-all the claimants to the fund parties and offered to bring the amount of the certificate into court to be paid out to such of the parties as the court might on a hearing find entitled to it. Complainant prayed that the enforcement of the judgment be enjoined until the rights of the parties could be adjudicated, and the court granted the injunction prayed, from which order Carmela Papa appeals.
    The injunction was granted upon the face of the bill, there being no other pleading in the record at the time than the verified bill.
    Abstract of the Decision.
    1. Injunction, § 384

      —what considered on interlocutory appeal from injunction. On an appeal from an injunction against the enforcement of a judgment until the rights of the parties to an action can he adjudicated, such injunction being granted on the face of the bill, the Appellate Court will not pass upon the sufficiency of the bill or whether it will be obnoxious to a demurrer if one were interposed.
    2. Interpleader, § 2*—when properly maintainable in action on insurance certificate. A bill of interpleader may be maintained in an action on an insurance certificate where there are conflicting claimants to the money involved, notwithstanding one of the claimants may have prosecuted his claim to judgment, and equity will restrain the enforcement of the judgment until it can adjudicate upon the conflicting claims.
    3. Injunction, § 206*—when evidence sufficient to support injunction against enforcement of judgment. On a bill of interpleader in an action on an insurance certificate to enjoin the enforcement of a judgment until the rights of the parties to the money involved can be adjudicated, evidence examined and held to warrant an injunction restraining enforcement of the judgment against the insurer.
    A. G. Dicus, for appellant.
    John De Grazia, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Pam

license: Public Domain

text:
    Thomas E. Skahen, trading as Thomas E. Skahen & Company, Defendant in Error, v. Jacob Strauss and Bertha Strauss, Plaintiffs in Error.
    Gen. No. 21,097.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action by Thomas E. Skahen, trading as Thomas E. Skahen & Company, plaintiff, against Jacob Strauss and Bertha Strauss, defendants, to recover a commission of two and one-half per cent, on $13,000, for obtaining a purchaser for the premises owned by the defendants. By this writ of error it is sought to reverse a judgment for $325 in favor of plaintiff.
    Plaintiff’s statement of claim charged that both defendants had requested plaintiff to secure a purchaser for the property in question; and testimony in support of that allegation was introduced. Defendants, in their affidavits of merits, denied that they had either jointly or severally requested plaintiff to secure a purchaser for the premises, and endeavored to introduce testimony to substantiate this contention.
    On behalf of the plaintiff, two witnesses—the plaintiff himself, and one George Lynn—testified that Mr. Strauss, as well as Mrs. Strauss, had requested plaintiff to secure a purchaser. On behalf of the defendants, Jacob Strauss denied that he had ever had any conversation with plaintiff or any one from his office with reference to the sale of the property involved in this controversy, and that he had ever requested plaintiff to secure a purchaser for the property. There was also offered the testimony of Mrs. Strauss for the purpose of denying alleged conversations with Lynn and with the plaintiff, wherein she requested plaintiff to secure a purchaser. Objection was made to her testimony for the reason that she was the wife of Jacob Strauss, hence not a competent witness. The objection thereto, which was based upon section 5 of the Evidence Act, ch. 51, Rev. St. (J. & A. jf 5522), was sustained, and the exclusion of this offered testimony is urged by defendants as cause for reversal.
    Abstract of the Decision.
    1. Witnesses, § 53

      —when parties in interest incompetent at common law. At common law no parties in interest were competent witnesses.
    2. Witnesses, § 54*—when parties in interest not incompetent under statute. Under section 1 of the Evidence Act (J. & A. If 5518), the disability of parties in interest as witnesses is removed.
    3. Witnesses, § 32*—how Jar disability of husband and wife removed by statute. Under section 5 of the Evidence Act '(J. & A. If 5522), a wife may testify in all cases where, if unmarried, she would be either plaintiff or defendant and in cases where the litigation concerns her separate property, and also in all matters of business transactions wherein she acted as agent of the husband.
    4. Witnesses, § 34*—when wife competent in action against husband and wife to recover commissions. In an action by a broker against a husband and wife to recover commissions on the sale of real estate where defendants were joint owners of the property, the wife is competent as a witness.
    5. Brokebs, § 84*—when exclusion of evidence ground for reversal. In an action by a broker to recover commissions on the sale of real estate brought against a husband and wife as joint owners of the property, it is reversible error for the court to exclude the wife’s testimony in contradiction of that of the plaintiff that she had requested him to secure a purchaser.
    Rathje Wesemann, for plaintiffs in error; Guy Van Schaick, of counsel.
    James R. Ward, for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


text:
    Charles A. Michalak, Defendant in Error, v. C. J. Tomkiewicz, Plaintiff in Error.
    Gen. No. 21,103.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthiix, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action of trespass by Charles A. Michalak, plaintiff, against C. J. Tomkiewicz, defendant, for damages for an alleged assault made upon plaintiff by defendant. Upon a trial of the cause the jury returned a verdict for five hundred dollars and to reverse a judgment on this verdict, defendant prosecutes this writ of error.
    Defendant contended that the court erred in giving on behalf of the plaintiff, instructions Nos. 2 and 3, the subject-matter of which was the question of damages; and further contended that the verdict, under the facts and circumstances, showed that the jury allowed the plaintiff exemplary or vindictive damages, when none should have been allowed, and therefore the damages were excessive.
    . The evidence showed that at the time of the assault defendant was the owner of a drug store, and had in his employ the plaintiff, who entered his service as an apprentice. Plaintiff, In the course of his employment, had occasion to sell postage stamps, which were usually kept in a drawer not under lock and key. The money for the sale of stamps was placed in the drawer. On previous occasions there had been shortages in the stamp drawer, which led to disputes between plaintiff and defendant. On the day of the assault, a similar discussion had arisen between them, and the plaintiff was summarily discharged. Defendant contended that as the testimony was conflicting, the jury should have been “correctly instructed as to the rule of damages applicable to the case.”
    Abstract of the Decision.
    1. Assault and battery, § 14

      —when evidence sufficient to support verdict. In an action oí trespass to recover for an alleged assault upon plaintiff by defendant, evidence examined and held to support a finding that defendant assaulted plaintiff without provocation and to warrant an award of exemplary damages.
    Defendant also complained of instruction No. 3, wherein the jury were told that in assessing punitive or exemplary damages, they had the right to take into consideration the pecuniary circumstances of the defendant. He contended that this instruction should not have been given, because there was no evidence offered by plaintiff with reference to the pecuniary condition of the defendant. Plaintiff testified that defendant was the owner of a drug store where he (plaintiff) had been employed; and that defendant was president of the Polish National Daily. Defendant testified that he operated and owned a drug store; that he had been in the drug business for twenty years, and further stated that he was in the newspaper business, and that he was president of the Polish National Publishing Company. He contended, however, that this is not such evidence as would warrant a conclusion as to his pecuniary condition. Defendant finally contended that the damages allowed were excessive.
    Otto H. Beutler and Beach & Beach, for plaintiff in error.
    Charles W. Lamborn, for defendant in error.

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

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

2. Assault and battery, § 17 —when instruction as to consideration of defendant’s pecuniary circumstances proper. In an action of trespass to recover damages for an alleged assault, evidence introduced by plaintiff as to defendant’s pecuniary circumstances was sufficient to warrant an instruction to the jury that in assessing exemplary damages they had the right to take into consideration defendant’s pecuniary circumstances.

3. Appeal and error, § 1406*—when amount of verdict not ground for reversal. Even though the damages awarded in an action of trespass for assault are excessive, where they are not so excessive as to show prejudice on the part of the jury the amount of the verdict is not ground for reversal.

4. Assault and battery, § 22*—where plaintiff’s conduct ground for mitigation of damages. In an action of trespass for an alleged assault where the plaintiff’s conduct while not sufficient to warrant or excuse the assault was not entirely decorous and not entirely free from censure, it should be considered in mitigation of the damages.

5. Damages, § 246*—when remittitur proper on appeal. In an action of trespass for assault where the Appellate Court finds that the amount of damages allowed is excessive, it will require the plaintiff to remit the excess from the judgment as a condition of affirmance.


text:
    William Libman, Plaintiff in Error, v. Carolina Baatz, Defendant in Error.
    Gen. No. 21,144.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitleb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action by William Libman, plaintiff, against Carolina Baatz, defendant, to recover damages for an alleged breach of a written contract between plaintiff .and defendant, for the sale of certain realty owned by defendant. The court found the issues for the defendant, and having entered judgment thereon for costs, plaintiff has sued out this writ of error.
    The statement of claim set forth the contract of sale, and alleged that plaintiff’s claim was for damages sustained through the failure on the part of the defendant to carry out the agreement; that plaintiff was at all times ready, willing and able to carry out said contract and did comply with every particle of said agreement; that he demanded from defendant that she likewise perform said contract, but that said defendant wholly refused, failed and neglected to do so, to plaintiff’s damage of $1,000.
    The affidavit of merits alleged, by way of defense, that plaintiff had, through his attorney, informed defendant that he would not carry out his part of the contract as he felt he was paying $2,500 more than the premises were worth; that while plaintiff’s attorney returned the abstract of record, he did not cancel the contract; that the plaintiff’s attorney stated she must come and settle with him whenever, .in the future, she obtained a purchaser for said premises; that defendant was afterwards notified that unless the $200 earnest money was returned, plaintiff would instruct his attorney to place the said contract on record, so as to cloud defendant’s title and thus force her to return the earnest money; that defendant, to prevent clouding the title, transferred the property to her daughter; that when plaintiff discovered the transfer he notified defendant that he was ready to carry out the said contract; that by arrangement between her attorney and that of plaintiff, the parties met in the office of plaintiff’s attorney; that plaintiff’s attorney then stated to defendant that, he had been informed that she had transferred the premises to her daughter and that plaintiff would not take same; that thereupon her attorney made the following offer: That if plaintiff would place the sum of $4,800 and the notes and trust deed securing said notes on said property in escrow with the Chicago Title & Trust Company, she would place the warranty deed from her daughter to plaintiff in escrow, pay the escrow fees, and also pay for having the abstract brought down to date, showing a clear and good title to the premises in her daughter, but this the plaintiff absolutely refused to do.
    Abstract of the Decision.
    Vendor and purchaser, § 352

      —when evidence sufficient to support judgment. In an action for a breach of contract for the sale of real estate, evidence examined and held to support a judgment for defendant.
    Each party introduced testimony tending to sustain the contentions made respectively in the statement of claim and affidavit of merits. While plaintiff urged several reasons why the judgment should be reversed, the greater part of his brief and argument was devoted to a discussion of the evidence, urging that the judgment was clearly and manifestly against the weight thereof.
    Plaintiff contended that the transfer of the property to the daughter supported his evidence, that defendant refused to carry out the provisions of the contract as requested by him. Defendant’s testimony, however, was to the effect that, plaintiff, having refused to close the deal, and having threatened to place the contract of record unless the earnest money was refunded to him, in order to keep the title clear, she transferred the property to her daughter.
    Egbert Edelson, for plaintiff in' error; William M. Tannenbaum, of counsel.
    No appearance' for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Matt Buconich and John Buconich, Plaintiffs in Error.
    Gen. No. 21,159.
    (Not to he reported in full.)
    Error to the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Proceeding for contempt by the People of the State of Illinois against Matt Buconich and John Buconich, defendants, for violation of an injunction order. To reverse an order finding defendants guilty, this writ of error is prosecuted.
    It appeared that on or about the 23rd of September, 1914, a bill was filed by Lee Hook and Peter Casazza, the relators, seeking to restrain defendants and others from conducting a house of ill-fame in the City of Chicago Heights: On September 24th an injunction was issued, restraining defendants from using or occupying said premises for the maintenance of a house of ill-fame. Defendants were duly served with a writ of summons and the writ of injunction on September 26th.
    On October 10th a petition was filed by the relators, which set forth, inter alia, the filing of the original bill, the issuance of the temporary writ of injunction, service of a copy thereof upon each of the defendants, and that since the issuance thereof and the service of copies upon the defendants, said defendants had continued conducting said premises as a house of prostitution. Said petition prayed for an attachment to issue against the defendants for contempt of court, and contained interrogatories for the defendants to answer. A rule was entered upon defendants to show cause why they should not be punished therefor, and defendants having on October 26th entered their appearances, the cause proceeded to a hearing.
    On behalf of the prosecution seven witnesses testified on direct examination and two were called in rebuttal, their testimony supporting the allegations set forth in the petition. The only testimony given on behalf of the defendants was their own testimony which was to the effect that neither of them had, since the issuance of said injunction and the service thereof upon them, conducted a house of ill-fame on the premises in question for the practice of prostitution; that, at most, they entered the said premises only two or three times, and then only for the purpose of getting wearing apparel and other property belonging to them. There were several witnesses called in rebuttal, whereby some of the statements made by defendants in their testimony were contradicted. At the conclusion of the hearing the court found both defendants guilty, imposing a fine of one hundred dollars and costs, and sentencing them to six months in the Cook county jail.
    In urging a reversal, defendants contended: First, that the keeping of a house of ill-fame constituted a crime under the statutes, and that the filing of the bill for an injunction was in effect an attempt to punish crime, and that a court of equity was without jurisdiction so to do. The bill charged that defendants were keeping a house of ill-fame, in violation of the laws of the State; that defendants had been repeatedly arrested, in some instances having pleaded guilty and in others being found guilty; that at the time of the filing of said bill, like prosecutions were pending; that these acts were detrimental to the interests of the community, subversive of public morals; that the maintenance of the premises as a house of ill-fame constituted a common nuisance, resulting in a lowering of the standard of morality in the neighborhood, and a depreciation of property values; and that the laws of the State although providing for punishment in such eases, did not prevent defendants from conducting such a place.
    Abstract of the Decision.
    1. Injunction, § 1

      —when hill for injunction not an attempt to punish for crime. A bill to enjoin defendants from using or occupying certain premises for the maintenance of a house of ill-fame is not an attempt to punish for a crime hut to abate a continuing nuisance and, as such, within the jurisdiction of equity.
    2. Contempt, § 1 *—how proceedings classified. Proceedings for contempt of court are of two classes, those which are criminal in their nature, which are called common-law contempts, and those which are intended as purely civil remedies, which ordinarily arise out of the alleged violation of some order entered in the course of a chancery proceeding and are known as civil contempts.
    3. Contempt, § 61*—-when denial under oath insufficient to purge contempt. A proceeding for contempt of court in violation of an injunction against using and occupying premises for the maintenance of a house of ill-fame is a civil proceeding and defendants are .not relieved from punishment by a denial under oath of the acts with which they are charged.
    4. Contempt, § 69*—when evidence sufficient to support order. In a proceeding for civil contempt in violating an injunction, evidence held sufficient to support a finding that defendants were guilty of contempt.
    5. Contempt, § 74*—when punishment inflicted hy court for civil contempt not interfered with. The punishment of a civil contempt is within the sound discretion of the court, and unless there is a manifest abuse of this discretion and the law of the land or the principles of equity have been violated in the exercise thereof, the action of the court is not subject to review.
    Peden, Kahn & Murphy, for plaintiffs in error.
    ' Maclay Hoyn'e, for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


text:
    Anton J. Cermak, Bailiff, for use of City Hall Square Company, Defendant in Error, v. Royal Furniture Company and Chicago Bonding & Surety Company, Plaintiffs in Error.
    Gen. No. 21,228.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action of debt by Anton J. Cermak, bailiff of the Municipal Court of Chicago for use of City Hall Square Company, plaintiff, against Boyal Furniture Company, a corporation, and Chicago Bonding & Surety Company, a corporation, defendants, wherein plaintiff recovered a; judgment for $881.40 and costs against defendants on a replevin bond. To reverse this judgment defendants prosecute this writ of error. The proceeding grew out of a replevin suit brought in the Municipal Court of Chicago -by the Boyal Furniture Company against the City Hall Square Company, for the possession of certain furniture, to which the Boyal Furniture Company claimed title by virtue of two chattel mortgages executed on July 10th and August 10,1913, respectively, by I. C. Newman & Company, a corporation, in favor of the said Boyal Furniture Company. The chattel mortgages under which the Boyal Furniture Company claimed title were executed by the said I. C. Newman & Company, acting through its treasurer, and were acknowledged on the aforesaid dates by one Carl W. Nelson as attorney in fact, who derived his authority under a power of attorney attached to each of these documents. The validity of these two chattel mortgages as against third persons was, under a stipulation between the parties, the sole question to be determined.

      Abstract of the Decision.
    Chattel mobtgages, § 55

      —when acknowledgment l>y attorney in fact insufficient. Under section 2 of the Chattel Mortgage Act (J. & A. i[ 7577), the acknowledgment by an attorney in fact under a power of attorney of a chattel mortgage executed for a corporation by its treasurer is invalid as against third persons.
    Lucius J. M. Malmin, for plaintiffs in error. ■
    D. P. Trude and M. Marso, for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


text:
    The Harmony Company, Appellee, v. The Sanitary Drinking Cup Company, Appellant.
    Gen. No. 21,269.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action by The Harmony Company, a corporation, plaintiff, ag'ainst The Sanitary Drinking Cup Company, a corporation, defendant, to recover damages for the alleged breach of a certain contract entered into between the parties, plaintiff claiming as its measure of damages the contract price • of certain vending machines alleged to have been manufactured by plaintiff at the special instance and request of the defendant under the contract. The court found the issues for the plaintiff, and having entered judgment thereon for $3,000 and costs, defendant appeals.

      Abstract of the Decision.
    1. Corporations, § 363

      —when execution, of contract of corporation sufficient. While the facts that the contract of a corporation was not signed by an officer ordinarily empowered to enter into contracts and that it did_ not bear the corporate seal may be circumstances in determining whether or not it was a contract of the corporation, such facts are not controlling.
    2. Corporations, § 516*—when evidence sufficient to show contract that of corporation'. In an action against a corporation to recover for the alleged breach of a contract, evidence examined and held sufficient to show the contract to be binding on the corporation.
    3. Contract, § 387*—when evidence sufficient to show breach. In an action to recover for an alleged breach of contract, evidence examined and held sufficient to show a breach of the contract by defendant.
    4. Damages, § 57*—what proper basis of recovery in action for breach. In an action to recover for the alleged breach of a contract for the sale of goods, evidence examined and held to show that plaintiff had treated the goods as defendant’s property and held them subject to defendant’s order and was entitled to recover upon the contract for the whole contract price, and that defendant was entitled to an allowance for such of the goods as were uncompleted.
    Louis Brandes, for appellant.
    Ernest Saunders, for appellee.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


text:
    Malachi Quinn, Appellee, v. City of Chicago, Appellant.
    Gen. No. 21,301.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Daniel W. Maddox, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action on the case by Malachi Quinn, plaintiff, against City of Chicago, defendant, to recover damages for an injury sustained by falling on a defective sidewalk. On the trial below, the jury returned a verdict of guilty, assessing plaintiff’s damages in the sum of $2,500, and from the judgment entered thereon, defendant has prosecuted this appeal.
    The evidence on behalf of the plaintiff showed that he was sixty-one years of age; that during the night before and on that morning of the accident there had been a heavy snowfall which covered the sidewalks and streets; that plaintiff was walking east on the north side of the street when he suddenly stepped into a depression in the sidewalk and wa§ thrown to the ground, sustaining the injuries for which this suit was brought; that the depression in the sidewalk into which plaintiff fell was due to an entire panel or block of cement having been in some way removed from said sidewalk severalmonths previously; that on the morning in question, by reason of the snowfall, the entire sidewalk w;as covered evenly with snow, so that any depression therein wotild be unnoticeable; that plaintiff was unacquainted with the neighborhood and knew nothing about the condition of this sidewalk; that at the time of the accident he was walking along slowly and carefully and was in the exercise of ordinary care for his own safety.
    There were five other witnesses, all of whom testified that at the time of the accident there was a panel of cement missing from the sidewalk and that said walk had been in such condition for several months prior to the accident. Two of these were eye witnesses to the accident and corroborated the testimony of the plaintiff as to the manner in which it occurred.
    Abstract of the Decision.
    Municipal corporations, § 1098

      —when evidence sufficient to support verdict in an action for injury hy defect in sideicalh. In an action against a municipal corporation for injuries alleged to have been caused by a defect in a sidewalk, evidence examined and held to support a verdict for the plaintiff.
    The sole defense relied upon at the trial was that at the time and place of. the accident no cement block was missing from the sidewalk, at the place of the accident. It was not denied that a cement block had been missing but it was claimed that such block had been replaced before the accident and that the sidewalk thereafter, up to and including the time of the accident, continued to be in good condition. Defendant introduced the testimony of five witnesses which tended to show that about four months prior to the accident, the cement panel that had been removed was replaced.
    Richard S. Folsom and Charles R. Francis, for appellant; David R. Levy, of counsel.
    Gorman, Pollock & Livingston, for appellee.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


author: Mr. Justice Goodwin

text:
    Charles H. Thompson Company, Plaintiff-Appellant, v. Mary Francis Burns and William Foster Burns, Defendants-Appellees.
    Gen. No. 20,763.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion originally filed April 12, 1916.
    Rehearing allowed and additional opinion filed May 12, 1916.
    Statement of the Case.
    Action by Charles H. Thompson Company, plaintiff, against Mary Francis Bums and William Foster Burns, defendants, to recover balance due on a promissory note. From an order vacating a judgment for plaintiff and an order dismissing the cause for want of prosecution, the plaintiff appeals.
    Plaintiff brought this suit against defendants for a balance due on a note, which was attached to the declaration, as follows:
    $1589.70. Chicago, Dec. 19, 1910.
    On or before (seventy days) after date we promise to pay to the order of C. H. Thompson Company Fifteen hundred eighty-nine & 70/100 dollars at the office of C. H. Thompson Company, Chicago. Value received with interest at 5% payable semi-annually.
    Mart Francis Burns,
    W. Foster Burns.
    “The within note is given in full settlement, payment and satisfaction of any and all claims C. H. Thompson Company or Charles H. Thompson have or may have against Mary Francis Burns or W. Foster Burns.”
    Defendants pleaded that the promises in the declaration referred to were made to the plaintiff and one Charles H. Thompson, who was then living, and not to the plaintiff alone. The plaintiff served notice on defendants December 8th to have the cause placed on the trial call. December 16th, the case was called in the absence of the defendants, a jury impaneled, a verdict returned for $283.56, and judgment entered thereon. A motion to vacate the judgment was entered December 18th, 1913, and heard December 22nd, on the affidavit of one of the defendants, and the counter-affidavits of two of plaintiff’s counsel. The affidavit on behalf of defendants was to the effect that affiant understood that the court had set down the' special plea for hearing; and argument for December 18, 1913, that defendants knew nothing of the call of the ease for trial until the afternoon of Tuesday, December 16, 1913, after judgment had been entered, and that if their plea was not sustained said defendants have a good and meritorious defense to whole of said plaintiff’s demands and that said plaintiff was indebted before and at the commencement of this suit and still is indebted to said defendants in the sum of Five Hundred Dollars, and that if required by said court to interpose a defense other than that now pending in said court, he verily believes a verdict will be given in favor of said defendants.” It also appeared from an affidavit- of the defendant William Burns, as well as the affidavit of plaintiff’s counsel, that when the case was set for a hearing, said defendant insisted that his plea in abatement was well founded, but said that if there was any doubt about it, he would want permission to make defense upon the merits, and that “thereupon the court announced that Bums could present his motion at the time of the trial.”
    The counter-affidavits stated that the cause had been set down for trial for Tuesday, December 16th, in the presence of the defendants; that it was not true that the cause was set down for argument on a special plea. Upon the showing made, the court set aside the judgment.

      Abstract of the Decision.
    1. Abatement and revival, § 21

      —when question whether instrument authorises joint action by plaintiff and another properly raised by plea in abatement. In an action on a promissory note, the question whether the instrument, set out in the declaration, when properly construed, gives rise to a cause of action in favor of the plaintiff, and another jointly or in favor of the plaintiff alone, is properly raised by plea in abatement averring that the promise was made to the plaintiff and another who is living and not to the plaintiff alone.
    2. Bills and notes, § 366*—lohat issue of fact raised by plea in abatement. In an action on a promissory note set out in the declaration the only issue of fact raised by a plea in abatement averring that the promises referred to in the declaration were made jointly to the plaintiff and another who is living, is whether such other person is living.
    3. Action, § 22*—when one person may not maintain action on joint obligation. On an obligation running to two jointly one alone cannot maintain an action if both be living.
    4. Bills and notes, § 459*—when .construction of instrument for court. Where an instrument sued on is set out in the pleadings, the question of whether the obligation runs to the plaintiff or to the plaintiff and another is a question of construction and not an issuable question of fact.
    5. Judgment, §• 132*—when judgment of trial court setting aside or refusing to set aside judgment by default during term not disturbed. A judgment of the trial court in setting aside or refusing to set aside, within the term when entered, a judgment entered on defendants’ failure to appear at the trial will not be reversed unless it appears that the court has abused its discretion.
    6. New trial, § 81*—what must be shown on motion to set aside verdict. The general rule is that where a motion to set aside a verdict is made, diligence and merit must be shown.
    James J. Bakboub, for appellant.
    Scott M. Hogan, 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 Goodwin

delivered the opinion of the court.

7. Judgment, § 133 —when due diligence shown on motion to set aside judgment by default. Due diligence is shown where a motion to set aside a judgment entered on defendants’ failure to appear at date set for trial is made within two days after such entry.

8. Judgment, § 132*—when trial court does not abuse discretion in refusing to set aside judgment by default during term. No abuse of discretion is shown in the action of a trial court in setting aside a judgment for the plaintiff entered on defendants’ failure to appear at the date set for trial, where it appears by defendants’ affidavit that they misunderstood the date for which the hearing was set and that they have a meritorious defense to the suit.

9. Judgment, § 150*—when failure to dispose of plea in abatement ground for setting aside judgment. The existence of an undisposed of plea in abatement at the time of entry of judgment by default justifies the setting aside of such judgment.

10. Pleading, § 355*—when permission to withdraw plea in abatement and plead to merits within discretion of court. Permitting a defendant to withdraw his plea in abatement and plead to the merits after issues have been made up and the cause reached for trial is a matter within the discretion of the court.

11. Judgment, § 168*-—when disposition of plea in abatement and hearing on merits may be had after setting aside of judgment by default. Where a judgment by default, entered on a defendant’s failure through mistake as to the date set to appear at the trial, is set aside, the plaintiff may ask for disposition of a plea in abatement filed, for an immediate hearing on the merits, and imposition of terms in the order setting aside the judgment.

12. Judgment, § 168*—when case properly dismissed for refusal to proceed after denial of motion to set aside order vacating judgment. Where after a judgment for the plaintiff has been set aside and the cause set for trial on the merits, the plaintiff, after denial of a motion to set aside the order vacating the judgment, refuses to proceed, the suit is properly dismissed.

On Rehearing.

1. Pleading, § 34*—when attached instrument not part of declaration. An instrument attached to but not set out in a declaration is no part thereof.

2. Abatement and bevival, § 21*—when Question raised by plea of abatement averring lack of necessary parties plaintiff cannot be determined. Where a promissory note declared on is attached to but not set out in the declaration, the issue raised by a plea in abatement, averring lack of necessary parties plaintiff in that the note is payable to the plaintiff and another jointly, cannot be determined until the note is formally offered in evidence.

3. Abatement and bevival—when within discretion of court to permit withdrawal of plea of abatement and pleading to merits before judgment. It is within the discretion of the court to permit the withdrawal of a plea in abatement, and plead to the merits at any time before judgment, even after there has been a finding in favor of the plaintiff on the issue raised by the plea.

4. Abatement and bevival—when discretion of court permitting withdrawal of plea in abatement and pleading to merits not abused. It is not an abuse of discretion to permit a defendant to withdraw a plea in abatement and plead to the merits where he had stated in court at the setting aside of a judgment against him that he would make a motion to that effect at the time set for trial if there was any doubt about the validity of the plea.

5. Judgment, § 143*—when affidavit in support of motion to set aside judgment by default sufficient. In support of a motion to set aside a judgment entered on a defendant’s failure to appear at the trial, an affidavit which states that the defendant has a meritorious defense, and also the nature thereof, is sufficient, though strictly speaking, such statement be a conclusion of law.


text:
    The People of the State of Illinois, Defendant in Error, v. William F. Stine, Plaintiff in Error.
    Gen. No. 21,048.
    1. Conspibacy, § 50

      —when evidence sufficient to sustain conviction. Evidence in prosecution for conspiracy to bribe city council and for embezzlement, examined and held sufficient to sustain conviction.
    2. Cbiminal law, § 520*—when verdict not set aside on appeal as against weight of evidence. Verdict in criminal case will not be set aside on review, as against the weight of evidence, unless the evidence clearly gives rise to a well-founded doubt in regard to the guilt of the accused.
    3. Indictment and infobmation, § 48*—when several counts relating to same transaction may be joined in one indictment. Where several counts relate to one general transaction they may be joined in one indictment even though the transaction, if established as laid in one count, necessarily terminated prior to the time when it would have terminated if the evidence supported another count. ■
    4. Indictment and information, § 55

      —when within discretion of court to compel election between counts of indictments. The right of compelling an election between counts of an indictment and time for the exercise of such election lies in the sound discretion of trial court.
    5. Indictment and information, § 56*—when refusal of court to compel election between counts of indictment before trial not erroneous. Refusal of trial court to compel, before trial, election between counts in an indictment charging conspiracy to corrupt, conspiracy to collect a fund for political purposes, and others charging conspiracy to defraud, conspiracy to embezzle, and embezzlement, where all counts related to one general transaction, held not error.
    6. Indictment and information, § 54*—when motion to compel election between counts of indictment too late. Motion to require election between counts of an indictment comes too late if not made until after verdict.
    7. Indictment and information, § 56*—when within discretion of court to refuse motion to compel election between counts of indictment. Where there is ample evidence to sustain finding of guilty on each of several properly joined counts of an indictment, it is within discretion of trial court to refuse motion to compel election between such counts.
    8. Embezzlement, § 18*—when evidence that money embezzled collected for unlawful purpose admissible. In a prosecution for embezzlement, evidence that the money embezzled was collected by the defendant for an unlawful purpose is admissible.
    9. Conspiracy, § 49*—when evidence as to refusal to return funds collected for the purpose of bribery admissible. Refusal of one indicted for conspiracy to bribe to return funds collected for that purpose is admissible as tending to show unlawfulness of purpose of such collection.
    10. Criminal law, § 589*—when admission of evidemee under proper and improper counts not erroneous. Where, after finding of guilty on charges of both conspiracy to bribe and embezzlement, the latter count is dismissed, the defendant cannot, even if the latter count was improperly submitted, complain of admission of evidence showing embezzlement where such evidence was admissible also on the conspiracy charge.
    11. Criminal law, § 227*—when People’s case may be reopened to allow introduction of testimony. After the close of the People’s case and before the opening of the defense, the court may reopen the People’s case to allow introduction of testimony where the delay in introducing it was not attributable to the People.
    12. Criminal law, § 227

      —when defendant estopped to complain that his case was interrupted to allow introduction of testimony for People. Where testimony properly receivable after the close of the People’s case and before the opening of the defense is not received at that time because of objection of the defendant, he cannot complain that later his own testimony is interrupted to receive such offered testimony.
    Error to the Criminal Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Charles J. Trainor, for plaintiff in error.
    Maclay Hoyne and Edwin J. Baber, for defendant in error; Edward E. Wilson, of counsel.

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

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Plaintiff in error seeks to set aside a judgment sentencing him to the penitentiary for five years, entered on a general verdict finding him guilty of conspiracy. The case went to the jury on four counts charging conspiracy to bribe members of the city council, one count charging a conspiracy to obtain money by threats and intimidation, and one, the eighteenth, charging embezzlement of certain moneys belonging to one Lyons and delivered to defendant as bailee. A separate verdict was returned finding him guilty on this embezzlement charge, but afterwards the count was dismissed out of the indictment. The indictment originally consisted of twenty-two counts. Of those dismissed, the sixth charged conspiracy to defraud the City of Chicago by bribing the aldermen to increase the pay of patrolmen, the seventh, eighth, ninth and tenth a conspiracy to collect political assessments contrary to law, the eleventh, twelfth and fourteenth a conspiracy to obtain money under false pretenses and to cheat and defraud, the thirteenth and fifteenth a conspiracy to obtain money by means of the confidence game, the sixteenth a conspiracy to embezzle, while the seventeenth and nineteenth charged embezzlement, and the twentieth, twenty-first and twenty-second charged obtaining money by the use of the confidence game.

The evidence disclosed that the defendant, a patrolman, was president of an organization known as the “United Police,” which embraced all ranks in the police department, although each rank constituted a separate division with its own committee. The patrolmen’s committee, of which defendant was an honorary or ex officio member, consisted of a representative from each of the forty-five or forty-six police precincts in the city. It further appears that in 1910, after an unsuccessful effort had been made to secure from the city council an increase in the salary of patrolmen, a meeting of the patrolmen’s committee was held some time in May at which it was decided, at the instigation of defendant, that an attempt should be made to collect $20 from as many as possible of the 4,000 patrolmen. For that purpose envelopes were distributed upon which was printed:

“Referendum Vote—Patrolmen only. Questions 4 and 5—Pensions. Place vote within this carton, seal and return to Patrolmen’s Committee, not later than June 15,1910. Carefully note the number of this Carton.”

These envelopes or cartons were numbered serially. A committee of three, one from each division of the city, was appointed to secure the collections. As one member died, the matter was left to the other two— defendant and one Carney. The contributions were made by putting $20 in an envelope and sealing it. No receipt was given, but the name of the patrolman was apparently checked upon a list. When the money was turned over to defendant and Carney, the envelopes were destroyed. By October a considerable sum of money was collected, but there is some variance in the evidence as to the amount. Defendant said it. was $25,000, Carney said $36,000, while other testimony indicated that it was $42,000 or more. This money was kept in a safety deposit box, secured by the defendant under a fictitious name, until" some time in October, when defendant and Carney divided it, and each placed his half in á separate vault. When, in February 1911, the city council passed an appropriation bill which left the salary of patrolmen unchanged, the contributors to the fund, for the first time, began to demand the return of their money. Defendant, who had been on a furlough for six months, allowed from time to time upon his false statement that he wished to take treatment for catarrh, dictated a letter at Springfield, April 5th, addressed to the superintendent of police, submitting his resignation, to take effect April 15th.

At the last meeting of the patrolmen’s committee, which was held in May, 1911, defendant was present and stated he was ready to return the money, but must know how much each precinct had contributed. When this information was given, he and Carney were to go to the vault. They left the hall, but did not return.

Defendant stated that he resigned from the' policy department to take a position with a sugar beet company, secured for him by his brother-in-law, and worked in that position about five months, but not continuously. The only evidence upon this subject was his own testimony, which was neither plausible, convincing, nor in harmony with the fact that after his resignation he spent practically all of his time on his farm in Michigan. Had he actually been employed by a sugar company, as he testified, there would, no doubt, have been ample corroborating evidence of that fact. He says he took his family to Kansas City March 22nd, was in New Orleans April 1st, Springfield April 2nd; that on March 15th, the men had demanded their money back; that he had it with him at the meeting, but men were demanding it who had no right to it. It clearly appears, however, that he never returned or accounted for any part of the money collected. Testimony was offered on behalf of the People as to statements made by defendant and his associates at the meeting at which the plan for raising the money was adopted and at other times, which, if true, established it as a fact that the money was collected for the purpose of bribing the city council to increase the pay of patrolmen from $1,200 to $1,400 a year.

From the conduct of the defendant it may fairly be inferred that from the beginning it was also his purpose to embezzle a portion or all of the money collected and rely upon the incriminating character of the enterprise as protection against complaints by his associates.

There is also clear and explicit testimony tending to show that in many cases the contributions were not voluntarily given, but were made because of the power wielded by the committee. It further appears that after defendant had left the State, one of the collectors, Lyons by name, followed him to Michigan and demanded the return of the money collected in his precinct, and that defendant refused to surrender it.

The testimony on the part of the prosecution establishing both the crimes of conspiracy and embezzlement was direct and convincing.

By way of defense, defendant testified that changes in the pension law were being agitated in the police department, and that there were a number of questions in regard to the proposed changes; that he desired to have a referendum submitted upon questions four and five, and prepared the envelopes or cartons for that purpose; that this purpose was abandoned, and that the envelopes were used to collect the money; that the money was raised to secure the passage of such favorable pension legislation as the patrolmen’s committee or the patrolmen might decide upon.

To explain the necessity for funds for this purpose, when the United Police, of which he was president, had several thousand dollars in its treasury, he said that it was not known whether all ranks in the United Police would agree to such changes as the patrolmen might desire. It was admitted, however, that at a meeting of the various ranks of the United Police held* in December, prior to the convening of the Legislature, all agreed upon a program, and that the expense incurred in securing these changes in the pension law was defrayed out of the treasury of the United Police.

Upon an examination of the evidence offered by the defendant we are unable to discover what plan or idea in regard to changes in the pension law the men responsible for the collection of the fund in question had in mind, and nowhere in the record does it appear that the patrolmen as a body ever declared themselves in favor of any particular changes or feared any changes advocated by any one else, but, on the contrary, it appears from defendant’s own testimony that there were conflicting interests in the ranks of the patrolmen themselves, so far as the matter of pensions was concerned. Nevertheless, according to his testimony, a sufficient number were found who were willing to contribute enough to create the fund in question, and without any definite information as to what changes in the pension law it was to be used to secure.

Defendant’s statement that it was not intended to raise a fund of such size as the one in question, but only a fund of from $6,000 to $7,000 is not credible, in the absence of any effort to check the continued collection of the fund, although it must have exceeded the sum of $7,000 months before the collection ceased to be made; but, on the contrary, the evidence discloses vigorous efforts to increase the fund after it had grown to be several times the size of the fund which defendant says was intended.

Defendant’s testimony that the fund was raised for the purpose of securing pension legislation is further discredited by the fact that although the United Police, which had ample funds to defray the necessary expenses in connection with such legislation, had agreed upon a legislative program satisfactory to the patrolmen as early as December, there is not one particle of evidence that anybody suggested the return of any portion of the money collected, until after the city council, in February, 1911, had passed an appropriation ordinance fixing the patrolmen’s salaries for the ensuing year, and the further fact that thereupon contributors began to clamor for a return of their money.

Counsel for defendant contends that many witnesses called by the People testified that the fund was not raised for the purpose of bribing aldermen. We feel that counsel has misconceived the effect of their testimony. They very definitely and positively' testified that the money was collected for the purpose stated, but some of them were naturally reluctant to say that they actually gave the $20 with a knowledge that it was to be used for the purpose of bribery. Upon this branch of the case it is sufficient to say that the evidence cannot be examined without a conviction that this money was raised with the known and declared purpose of using it to secure an increase in the salary of patrolmen by corrupting members of the city council, and that that purpose was well and generally known, although the evidence is clear that a large number who contributed did so unwillingly and as the result of coercion.

The evidence of embezzlement charged in the eighteenth count, upon which a verdict of guilty was also returned, -is equally clear.

Upon the question of the weight of the evidence it may be remarked that it is not within the province of this court to set aside a verdict in a criminal case unless the evidence clearly gives rise to a well-founded doubt in regard to the guilt of the accused (People v. Crosenheider, 266 Ill. 324), and we are of the opinion that no such doubt arises from an examination of the evidence in this case.

Counsel for defendant also contends that the trial court erred in refusing to quash the indictment or compel the State’s Attorney before the trial to elect as to whether he would proceed to trial upon the counts charging conspiracy to corrupt, conspiracy to collect a fund for political purposes, or the counts charging conspiracy to defraud, conspiracy to embezzle, and embezzlement. It is apparent, however, from a reading of the counts themselves, that they all relate to one general transaction, and are properly joined to meet the various phases that might be disclosed by the evidence. To illustrate the necessity as well as the propriety of such a practice it may be said that while it was very clear from the evidence apparently in the possession of the People that the transactions constituted a conspiracy, it might not have been known at the outset whether the sum raised was intended to be used for the purpose of bribing members of the city council, or to intimidate them by threats to use the funds in support of opposing candidates, or whether it might not appear that from the beginning it was the intention of the defendant to collect a fund under the pretense that it was to be used for the purpose of influencing the city council, and then to take advantage of the incriminating character of the transaction to protect him in embezzling it. The practice complained of is fully supported by the authorities.

The fact that the transaction, if established as laid in one count of the indictment, necessarily terminated at a point in time prior to the time when it would have terminated if the evidence supported some other count in the indictment, is quite immaterial. In People v. Dougherty, 246 Ill. 458, an indictment was supported which charged in one count the forging of an instrument, and in another the passing of the instrument so forged. In that case the court said that: “Even if it were not apparent upon the face of each of these indictments that the several counts relate to the same transaction, in the absence of anything to show the contrary it would be presumed that the charges contained in each count related to the same transaction.” (See also, West v. People, 137 Ill. 189.)

The right of compelling an election is, morever, in the sound discretion of the court, and, if proper at all, the time when it should be required must be left to the discretion of the presiding judge. (Schintz v. People, 178 Ill. 320.) In view of what has been said, it is very clear that the court, in refusing to require an election before the trial, did not err.

Counsel for defendant insists, however, that at the close of all the evidence the court should have required the People to elect whether they would proceed under the five remaining counts charging conspiracy, or the count charging embezzlement. It is a complete answer to this to say that while counsel for defendant submitted seven distinct motions at the close of all the evidence, he did not submit or make any motion to require an election until the matter came on for hearing on a motion for a new trial, at which time he presented a motion in writing and asked that it be considered filed nunc pro turn as of the date of the trial. He did call the matter to the attention of the court, but did not ask for an election. A portion of the record abstracted is as follows:

Mr. Trainor: “Then comes the question of embezzlement under the eighteenth count as below. You (addressing the court) said the other day if nothing further developed to renew the motion.

“Now certainly nothing has developed that strengthens the State’s position in that regard. The question cannot be raised in the first instance of bribing the city council, and at the same time of embezzling from the men/’

Mr. Malato: “Now, if the court please, we are going to ask the court to rule in favor of the defendant on the proposition of embezzlement, leaving only conspiracy to bribe the city council.

The Court:. “What about the question of embezzlement? Don’t you think there is evidence supporting the charge of embezzlement?’’

Mr. Malato: “There is, but—”

The Court: “If you wish to nolle as to that I won’t take any responsibility.’’

The record itself discloses that thereupon Mr. Malato asked:

“What is the motion of counsel at this time?”

The Court: “He has first asked that the court dismiss as to the first five counts in the indictment. Is that correct?”

Mr. Trainor: ‘1 That is correct, your Honor. ’ ’

The Court: “And those are the ones that charge conspiracy to bribe the city council, a conspiracy to obtain money, for the purpose of obtaining money, is that in substance what they charge?”

Mr. Trainor: “Well, I suppose so.”

The Court: “What has the State to say about that?”

Mr. Malato: “About conspiracy?”

The Court: council. ’ ’ “To obtain money to bribe the city

Mr. Malato: “There is ample evidence, not only, Nelligan, Blanchard and other witnesses.”

The Court: “The motion to dismiss as to the first five counts will be overruled.”

Mr. Trainor: “Exception.”

Then followed these seven written motions asking the court to direct a verdict on each of the six counts, and a separate motion to find defendant not guilty on the eighteenth count charging embezzlement, on the ground of a fatal variance between the material allegations and the evidence. The State’s Attorney definitely asked counsel for defendant to make his motion, and as the latter failed to make any motion asking an election, he waived his right to have an election made if any such right existed.

But we are further of the opinion that had a motion asking an election been properly presented at that time, it was still within the discretion of the court to refuse to allow it, for there was ample evidence to sustain a finding by the jury that defendant was guilty of the conspiracy charges and a finding that he was guilty of the embezzlement charge. It was possible that if the court required an election, there might be withdrawn from the jury the very count charging the offense of which the jury might be convinced that he was guilty. The propriety of the action of the court in submitting the case to the jury on all six counts is fully sustained by the authorities already cited. Moreover, were an election technically proper, the defendant was not harmed by submitting the case to the jury on both charges. The complaint of the defendant is that by trying the case upon the counts charging embezzlement and the operation of the confidence game, there was admitted into the record evidence that would not properly have been admitted under the conspiracy counts, and that by submitting the case to the jury upon the embezzlement count as well as the conspiracy counts, there was retained in the record prejudicial evidence not properly admissible in support of the former. There is a short and, we think, conclusive answer to this contention. It is clear that in support of the charge of embezzlement the People had the right to offer in evidence, every circumstance connected with the process by which the money came into the defendant’s hands, for the purpose of determining whether the action of the defendant in retaining it constituted embezzlement or not, and also for the purpose of corroborating the direct testimony of the complaining witnesses, for men do not, in the usual course of things, boldly and defiantly embezzle money coming into their hands for a lawful purpose especially where the embezzlement would be known to hundreds of men, and, consequently, evidence tending to show that the money was held in such circumstances as to give the defendant some immunity against prosecution, was material in that it tended to show the probability of the testimony establishing embezzlement. On the other hand, the conduct of the defendant in refusing to return any part of the funds in his hands directly corroborated the testimony in regard to the purpose for which it was collected. The very fact that he pocketed thousands of dollars belonging to others tends to show that the money had been collected in such incriminating circumstances as to insure the defendant, in some measure at least, against prosecution, and, therefore, this evidence in regard to his retention of the money after the purpose of the conspiracy had failed, tends to support the direct testimony offered in regard to the unlawful purpose for which it was collected, and would have been properly admissible even though the case had gone to trial upon the first five counts of the indictment alone. The bare fact that a verdict was returned on the embezzlement charge did not harm defendant as no judgment was entered on it.

Counsel for defendant also contends that the defendant’s rights were prejudiced by the action of the court in calling the witness Carney and interrupting the defendant’s own testimony to permit him to testify. Carney had been called by the court while the People’s case was being put in, and, upon his refusal to answer questions, was committed for contempt. Before the defendant went on the stand, Carney indicated to the court that he was willing to testify, but when called, defendant’s counsel objected on the ground that the People’s case had been closed. We think it was proper for the court to allow, and that it should have allowed the People’s case to be reopened at that time for the purpose of receiving the testimony of the witness Carney, since the delay was in no way attributable to the People. The fact that Carney’s testimony was not heard until after the defendant went upon the stand was due entirely to the action of defendant’s counsel in objecting to it when Carney was first recalled, and he is, therefore, not in a position to complain. We are, however, of the opinion that the action of the court in receiving the testimony of Carney at the time when it was received, was, in any view of the matter, within the sound discretion of the court.

As we find no reversible error in the record, the judgment of the trial court must be affirmed.

Affirmed.


text:
    Emma T. Hulbert, Defendant in Error, v. Charles Richter, Impleaded with J. E. Wells, Plaintiffs in Error.
    Gen. No. 21,067.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action for rent, attorney’s fees and forcible detainer by Emma T. Hulbert, plaintiff, against Charles Eichter, impleaded with J. E. Wells, defendants. To reverse a judgment for plaintiff, defendants sued out a writ of error.
    Plaintiff brought suit August 28, 1914, for attorney’s fees, rent for the months of July and August, and for possession of certain real estate. It appeared that upon the institution of the suit, and before the September rent accrued, the premises were vacated by the defendants; that there had been deposited with the plaintiff the sum of thirty-five dollars to secure the payment of the last month’s rent named in the lease, which contained a stipulation for attorney’s fees on confession of judgment. The court allowed the thirty-five dollars as part payment of the rent due, but entered judgment for the August rent, eleven days of the September rent, and twenty dollars attorney’s fees.
    Abstract of the Decision.
    1. Forcible entry and detainer, § 99

      -—when deposit properly allowed as part payment of rent. In action for rent and forcible detainer, money deposited to secure payment of rent is properly allowed as part payment of rent due.
    2. Forcible entry and detainer, § 99*—what rent cannot he recovered. Rent becoming due after institution of action for rent and forcible detainer cannot be recovered.
    3. Forcible entry and detainer, § 99*—when attorney’s fees not recoverable. In absence of stipulation in lease therefor except on confession of judgment, attorney’s fees cannot be recovered in action for rent and forcible detainer.
    4. Municipal Court of Chicago, § 13a*—when lease competent evidence under. statement of claim. In action in the Municipal Court of Chicago for rent and forcible detainer, a lease is competent evidence under a statement of claim which fully apprises the defendant of the nature of the claim though such lease is not referred to in the statement.
    5. Appeal and error, § 1802*—when cause reversed on appeal of one of two codefendants remanded. Where a cause is reversed on appeal of one of two codefendants, it must be remanded though the sum for which the plaintiff is entitled to judgment definitely appears from the evidence.
    Veirs & McClure, for plaintiffs in error.
    No appearance for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Emma Behrle, Defendant in Error, v. Henry Hust, Plaintiff in Error.
    Gen. No. 21,094.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement óf the Case.
    Action by Emma Behrle, plaintiff, against Henry Hust, defendant, for damages for personal injuries. To reverse judgment for one hundred dollars rendered against him, defendant sued out a writ of error.
    The evidence disclosed that while plaintiff was passing by the place of business of defendant she was bitten by a dog belonging to the latter. It is admitted that the defendant had no knowledge of any vicious or mischievous propensities of the dog previous to the attack in question; that there was a valid city ordinance in force providing that, “No person shall cause or permit any dog owned or kept by him to run at large on any street, alley, or other public place within the city, at any time, unless such dog shall be securely muzzled so as to effectually prevent it from biting any person or animal,” and that the ordinance also provided a penalty.
    Charles S. Wharton, for plaintiff in error; Benjamin Samuels, of counsel.
    Farrell & Thompson, for defendant in error; Hope Thompson, of counsel.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Animals, § 15 —when owner liable for personal injuries inflicted by. An owner having knowledge of the mischievous propensities of an animal, of a kind not naturally vicious, is liable for personal injuries caused by such animal acting in accord with such propensities.

2. Animals, § 15*—what liability of owner of animal known to be of mischievous propensities based upon. Liability of owner of an animal of known mischievous propensities, for injuries caused by it, is not based on negligence but on the fact that he continued to own an animal known by him to be dangerous.

3. Negligence, § 8*—when failure to obey ordinance gives rise to action. Damages resulting from failure to comply with the terms of an ordinance give rise to an action.

4. Animals, § 14*—when owner of illegally unmuzzled dog liable for injuries to person of another. The owner of a dog is liable for damages to one bitten by it rvhere such injury is the proximate result of allowing the dog on the street without being muzzled, in accordance with the provision of an ordinance.


text:
    Ed. Lewis, Defendant in Error, v. Chicago & Northwestern Railway Company, Plaintiff in Error.
    Gen. No. 21,102.
    1. Carriers, § 242*—when stipulation in bill of lading limiting liability to declared value not bar to recovery. Provision in bill of lading that in case of loss or injury to shipment of live stock the liability of the carrier shall not exceed the valuation of shipment stated in the bill of lading simply limits the liability of the carrier to the amount of such valuation and permits recovery even where the goods in their damaged condition exceed in value the valuation stated in the bill of lading.
    2. Carriers, § 234*—when carrier relieved from liability for delay in shipment of cattle caused by congested traffic. To relieve a carrier from liability for delay in delivering shipment of cattle caused by congested traffic, it is not sufficient that the particular degree of congestion which occurred was not foreseeable, but it must further appear that the carrier could not reasonably have foreseen the danger of a degree of congestion sufficient to cause such delay.
    3. Appeal and error, § 1414

      —when judgment not disturbed as against manifest weight of evidence. Where after careful examination of the evidence the reviewing court is unable to say the judgment is contrary to the manifest weight of the evidence, judgment will be affirmed.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Charles A. Vilas and Ira C. Beldbn, for plaintiff in error; William: G-. Wheeler, of counsel.
    Fulton, Carey & Deutsghman, for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

This writ of error is sued out to reverse a judgment obtained by the defendant in error for damages alleged to have been the result of delay in transporting a shipment of cattle from Anoka, Nebraska, to Chicago. Plaintiff below loaded his cattle about ten o’clock Friday morning, the shipment arrived in the Missouri River Valley at ten o’clock the following morning, and according to plaintiff’s contention, should have gone forward at nine o’clock that evening; they did not, however, go forward until four hours later. As the result of this delay the stock did not arrive in Chicago until between five and six o’clock Monday morning, and it was not possible to get them to the yards until some time in the afternoon, too late for sale.

We think the evidence amply sustains the finding of the court that this fact resulted in a loss to the plaintiff of $148.56, which is the amount of the judgment. The' plaintiff in error, however, contends that the plaintiff below is not entitled to recover because of the following provisions in the bill of lading:

“Liability limited to the declared valuation by shippers, which must be inserted in this Live Stock contract in the space provided below. The rates on Live Stock are based on the following valuations:

********

“It is understood by the shipper that all said tariff rates are based in part upon the value of the animals shipped and that if the animals are of greater value than that printed above a higher rate will be charged, and unless shipper has declared the value of the animals to exceed the values printed above, then it is understood that he hereby declares and it is agreed that the value of the animals shipped does not exceed of their kind, per head the above printed valuation.

********

“And it is agreed between the owner and the shipper and the Chicago & North "Western Railway Company that if injury results to said animals from any negligence on the part of said Railway Company, the valuation thereof shall in no case exceed the valuation above named, and the liability of said Railway Company shall not exceed said valuation.”

As the evidence shows that notwithstanding the actual damage to the cattle in question, they brought a sum in excess of the valuation stated in the bill of lading, the defendant contends that the terms of the bill of lading preclude any recovery. In our opinion this contention cannot be sustained. This court has decided in Christensen v. Chicago, M. & St. P. Ry. Co., 194 Ill. App. 562, that the sole effect of provisions in a bill of lading similar to the one in the case at bar is to limit, the liability of the carrier to the amounts named, and permits a recovery in a case where the goods in their damaged condition still exceeded in value the amount stated in the bill of lading. We are in entire accord with this ruling.

Defendant further contends that the proximate cause of the failure to get plaintiff’s cattle to market in time for sale Monday was an unexpectedly congested condition of the stock lines, and not its delay of four hours in transit. The evidence is clear that plaintiff loaded and shipped his cattle early enough to insure, by an ample margin, their timely arrival at the stock yards in Chicago, but that defendant of its own volition delayed the shipment four hours en route, and that but for this delay the cattle would have been in time for the Monday market. Counsel asks us to say that the evidence shows that this congestion was unforeseeable. Testimony offered in its behalf, however, showed that such, and even greater, congestion had occurred before, and, it might easily be inferred, was liable to occur again; moreover, if it were to be assumed that the particular degree of congestion which occurred was not foreseeable, that would not be sufficient, unless it further appeared that defendant could not reasonably have foreseen the danger of a degree of congestion sufficient to imperil the marketing of plaintiff’s cattle. In other words, it might well be that even if the extent of the congestion on the morning in question could not have been foreseen, nevertheless, it might be that the defendant could have foreseen the danger of a degree of congestion sufficient to make the marketing of the cattle uncertain. It was not at all a question of whether there probably would or would not be congestion sufficient to imperil the marketing of the cattle, but whether the danger of such a degree of congestion was reasonably foreseeable. The jury were fully and, we think, properly instructed upon the question of negligence, unreasonable delay, and proximate cause, and by its verdict has, therefore, necessarily found these questions adversely to the defendant. After a careful examination of the evidence, we are unable to say that its conclusions are contrary to the manifest weight of the evidence. The judgment will be affirmed.

Affirmed.


text:
    W. Graczykowski, trading as Division Street Iron Works, Defendant in Error, v. Wanda Wysocki, Plaintiff in Error.
    Gen. No. 21,113.
    (Not to The reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action by W. Graczykowski, trading as Division Street Iron Works, plaintiff, against Wanda Wysocki, defendant, for labor and material furnished. To reverse a judgment against her, the defendant sued out a writ of error.
    The plaintiff testified that the work and labor were furnished under a contract with the defendant, by which she agreed to pay him eighty-five dollars for the work and materials. He was corroborated by a witness who testified that he was present when the agreement was made. This testimony was directly contradicted by the defendant. Defendant claimed that plaintiff did not establish his case by a preponderance of the evidence, and that defendant’s testimony was supported by the fact that she had made a general contract including the iron work in question prior to the alleged agreement upon which the suit was brought. Plaintiff’s case did not rest upon his statement alone, but was corroborated. Defendant offered evidence to show that the work and labor were worth much less than the alleged contract price.
    Caswell & Healy, for plaintiff in error.
    Wiley & Mack, for defendant in error.

      Abstract of the Decision.
    1. Evidence, § 475

      —what constitutes preponderance. A finding based on corroborated testimony of one party will not be reversed as not supported by preponderance of the evidence where contradicted by uncorroborated testimony of the other party.
    2. Building and constbuction contbacts, § 98*—when evidence as to actual value of labor and materials furnished immaterial. In action on special contract for labor and material furnished for an agreed amount, evidence of what such labor and material were actually worth is immaterial.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Virgil B. Mays, Plaintiff in Error, v. Wells Fargo & Company, Defendant in Error.
    Gen. No. 21,142.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Coubtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Rehearing denied May 24, 1916.
    Statement of the Case.
    Action by Virgil B. Mays, plaintiff, against Wells Fargo & Company, a corporation, defendant, to recover damages for unauthorized delivery of express shipment. To reverse a judgment for defendant, plaintiff prosecutes a writ of error.
    Plaintiff’s claim was for the loss of an express shipment made February 9, 1911, consigned to his own order at Harris, Missouri. The statement of claim set forth the shipment and a wrongful and unauthorized delivery of the goods to some one not entitled to receive them. Defendant denied that the delivery was unauthorized, and further set out that said shipment was made under a contract in part as follows:
    Abstract of the Decision.
    1. Carriers, § 162

      —when provisions in hill of lading as to notice of claim and commencement of suit valid. A provision in a bill of lading that the carrier shall not be liable for loss, damage or delay unless written claim therefor is made within ninety days of such loss, damage or delay, and suit commenced within one year therefrom, is binding on shipper and failure to comply therewith precludes recovery for unauthorized delivery.
    2. Carriers, § 171a*—when provisions in hill of lading as to no

      tice of claim, and commencement of suit preclude recovery for unauthorized delivery. A provision In a shipping contract that claim for loss, damage or delay must be made within a certain time after such loss, damage or delay, and suit brought within a certain time, precludes a recovery for unauthorized delivery though the action be in trover.

      “In no event shall the company be liable for any loss, damage or delay unless written claim therefor shall be presented to it within 90 days of the date of such loss, damage or delay, and any suit or suits for or on account of such loss, damage or delay shall be brought within one year from the date hereof, or be forfeited, any statute of limitations to the contrary notwithstanding. ’ ’
    Defendant further stated that no claim was made within the ninety days, and no suit was brought within the year.
    The court found that the defendant negligently made an unauthorized delivery, but further found that the plaintiff failed to comply with the terms of the bill of lading, and, therefore, could not recover.
    Winston & Lowy, for plaintiff in error.
    Holt, Cutting & Sidley, for defendant in error; J. D. Dickerson, of counsel.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Conflict of laws, § 21 —what law governs in action for damages for injury to interstate shipment. The decisions of the United States Supreme Court are the law of the case where liability under a contract for interstate shipment is in issue.


author: Me. Justice Goodwin

text:
    The People of the State of Illinois, Defendant in Error, v. Frank Wolf, Plaintiff in Error.
    Gen. No. 21,819.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiif, against Frank Wolf, defendant, for the offense of being a vagabond. To reverse a judgment adjudging him guilty and sentencing him to three months in the House of Correction, and that the People recover the costs, the defendant prosecutes a writ of error.
    The information charged that the defendant, “heretofore, to wit, on the 3rd day of May, A. D. 1914, at the City of Chicago, aforesaid, is known to be a thief, burglar or pickpocket, having no lawful means of support, and was habitually found prowling around steamboat landings, railroad depots, banking institutions, places of amusement, auction rooms, stores, shops or crowded thoroughfares, cars or omnibuses, or at any public gatherings or assemblies, or lounging about court rooms, private dwelling houses or outhouses, or found in houses of ill-fame, gambling houses or tippling shops,” etc.
    Abstract of the Decision.
    1. Vagrancy—when information sufficient. Conviction of offense of being a vagabond, sustained though information in charging that defendant was known to be a thief, burglar or pickpocket, did not state whether such knowledge came “by his own confession or otherwise,-” according to the wording of the statute, as the means by which the fact is known is a mere matter of evidence and not a substantial part of the crime.
    •2. Vagrancy—iohen information sufficiently alleges time of commission of offense. An information charging that the defendant, “heretofore, to wit, on the 3rd day of May, A. D. 1914, at the City of Chicago; aforesaid, * * * was habitually found prowling around steamboat landings,” etc., sufficiently alleges the time of commission of the offense.
    3. Vagrancy—when information sufficiently alleges that defendant Jcnoion to he a thief at time found prowling. An information charging that the defendant “heretofore, to wit, on the 3rd day of May, * * * is known to be a thief, * * * and was habitually found prowling around steamboat landings,” etc., while ungrammatical sufficiently charges that defendant was known to be a thief, etc., at the time he was found prowling, etc.
    4. Vagrancy—when information not vague or defective. A charge in an information, charging the defendant with being a vagabond, that he was known to be a “thief, burglar or pickpocket,” is not vague or uncertain, as the word “thief” includes burglars, pickpockets, or any one guilty of the crime of stealing, nor does the use of the redundant expression of the statute render the charge defective.

      Eebstein & Macaulay, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Me. Justice Goodwin

delivered the opinion of the court.

5. Vagrancy—when information contains all essential elements of offense. An information charging the defendant with the offense of being a vagabond and that he was “habitually found prowling around steamboat landings, railroad depots, banking institutions, places of amusement,” etc., is not defective in substance as every element necessary to constitute the offense is charged.

6. Criminal law, § 502 —when sufficiency of information presumed because of failure to call for bill of particulars. Where one charged in an information with the offense of being a vagabond, and with being found habitually prowling around places designated in the statute, considers that the language used does not sufficiently apprise him of the places in which he was found prowling around, he has a right to ask for a bill of particulars, and on his failure to do so, the information must be presumed on error to have been sufficiently definite to enable him to present his defense.

7. Indictment and information—when defects in information waived. Failure of an information, charging the defendant with the offense of being a vagabond, to definitely charge the particular places he was charged with having been habitually found prowling around does not go to the merits of the case on the question of guilt or innocence and is waived by failure to move to quash the information.

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


author: Mr. Justice O’Connor

text:
    George G. Barrows, Defendant in Error, v. Caroline Connelly et al., Plaintiffs in Error.
    Gen. No. 20,571.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Bill by George G. Barrows, complainant, against Caroline Connelly and others, defendants, to foreclose a mortgage. To, reverse a decree for complainant, defendants prosecute a writ of error.
    A bill was filed to foreclose a trust deed, conveying certain real estate to secure a promissory note. After certain phases of the case had been referred to two different masters, each of whom made a report, the cause was referred to Master Rogers, to take proofs and report the same together with his conclusions. After all the evidence had been introduced, the master made his report finding that all the material allegations of the bill as amended had been proved, and recommended that a decree of foreclosure be entered in accordance with the prayer thereof. No objections or exceptions were filed to this report, and afterwards a decree was entered in accordance with the recommendations of the master. From the decree an appeal was taken'to this court. The appeal was dismissed for the reason that it was not prosecuted in conformity with the order allowing the same. The record is again before us on a writ of error.
    Numerous errors are argued by defendants, the principal contention being that judgment by confession was entered on the note, to secure which the trust deed was given in May, 1902, while the bill to foreclose was not filed until December, 1902, and that the bill declared on the note instead of on the judgment. On the hearing before the master the original complainant, Hopper, offered proof which tended to show that subsequent to the time the bill was filed .George GK Barrows, the complainant, purchased the note and trust deed. Proofs were closed November 10, 1910. December 6, 1910, complainant, to make the bill and proofs correspond, obtained leave of court to make such formal amendment and Barrows was substituted as complainant in lieu of Hopper, the original complainant and owner of the note and trust deed. The bill was amended accordingly. At the same time defendants were given leave to plead or answer to the bill as amended, and on December 14,1910, filed a plea which set up, among other things, that judgment by confession had been entered on the note in May, 1902, and was subsequently satisfied of record. Defendants did not bring the matter of this plea nor any evidence to substantiate its averments to the attention of the master, and on February 4, 1911, the master made his report. The record nowhere showed that any point was made before Master Rogers that the note had been reduced to judgment. The record contained what purported to be a certificate of evidence, which included not only all the evidence introduced before Master Rogers, but a great many other documents.
    Edward H. Ktjbitz, for plaintiff in error.
    Thomas J. Peden and Roy O. Merrick, for defendant in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 863 —what evidence should not be included in certificate of evidence. Where a cause has been referred to a master to take and report the evidence and his conclusions, evidence other than that heard before him should not be included in the certificate of evidence filed on prosecution of writ of error.

2. Equity, § 438*—when evidence not before master not considered. Where a cause has been referred to a master to take and report the evidence and his conclusions, it is not competent that other evidence be considered.

3. Appeal and error, § 855*—when certificate of evidence unnecessary on error. A certificate of evidence is unnecessary and has no proper place in the record on writ of error where all the evidence is taken before the master and included in his report.

4. Appeal and error, § 1399*—when findings of master conclusive. The finding of a master, where no objections are filed to his report, are conclusive.

5. Appeal and error, § 484*—when objections prerequisite to review of findings. Objections to the findings of a master are a prerequisite to review of findings of fact.

6. Appeal and error, § 1094*—when briefs containing vituperative language stricken from files. Briefs and arguments containing vituperative, unwarranted and impertinent expressions as to opposing counsel, masters in chancery and judges of the court before whom a case was heard, will be ordered stricken from the files.


text:
    Metropolitan West Side Elevated Railway Company, Defendant in Error, v. Nicholas Govostis, Plaintiff in Error.
    Gen. No. 21,087.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action of forcible detainer by Metropolitan West Side Elevated Railway Company, plaintiff, against Nicholas Govostis, defendant. To reverse a judgment for plaintiff, defendant prosecutes a writ of error.
    Defendant occupied the premises under a written lease dated November 15, 1913, conditioned to expire May 31, 1914, “unless said term is sooner terminated by notice from said party of the first part, as hereinafter provided.” Upon the expiration of the lease by its terms, the same was continued in force by a memorandum agreement until December 31, 1914. The lease provided that the same might be terminated by the landlord at any time before the expiration of the term reserved by giving to the tenant five days’ notice in writing, and upon the service of such notice the tenant agreed to yield up immediate possession of the premises. On September 28,1914, the plaintiff served on the defendant the following notice:
    “In pursuance of the provisions in a certain lease dated the 15th day of November, 1913, between the Metropolitan West Side Elevated Railway Company and yourself, the terms and provisions of which were continued in force to December 31, 1914, after the termination of said lease on May 31, 1914, by a certain other memorandum of agreement, dated the 1st day of July, 1914, you are hereby notified that the said Railway Company hereby elects to determine said lease at the expiration of five (5) days from the date hereof. '
    Abstract of the Decision.
    1. Forcible entry and detainer, § 31

      —when demand for possession not necessary to maintenance of forcible detainer. Demand for possession of premises before bringing an action of forcible detainer against a tenant holding over is not necessary.
    2. Landlord and tenant, § 474*—when notice to quit sufficient. Notice by landlord of termination of lease, not describing the premises but designating the lease under which they are occupied, held sufficient.
    “You are further notified- to quit and deliver up possession of the premises described in said lease to this company on or before the 4th day of October, 1914.”
    The defendant having refused to surrender possession as demanded, this suit was brought and a judgment in favor of the plaintiff resulted.
    Thomas E. Swanson and Richard J. Cooney, for plaintiff in error.
    Addison L. Gardner and Erwin W. Roemer, for defendant in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.