text:
    The People of the State of Illinois, Defendant in Error, v. William McCanney, Plaintiff in Error.
    Gen. No. 6,331.
    1. Intoxicating liquors, § 127

      —when refusal of court to require till of particulars is not error. On a prosecution for selling intoxicating liquors in anti-saloon territory, the refusal of the court to require a bill of particulars as to the kinds and brands of such liquors alleged to have been sold, by whom sold, whether by principal or agent, and further describing the premises where they were sold, held not erroneous.
    2. Indictment and information, § 45*—when State required to furnish till of particulars. The question whether the State should be required to furnish a bill of particulars and the character of such bill, in a criminal prosecution, held to rest in the sound legal discretion of the trial court.
    3. Criminal law, § 495*—when decision of court in refusing to require till of particulars not disturted. Refusal of a trial court to require a bill of particulars in a criminal prosecution will not be disturbed unless it appears the defendant could not properly prepare his defense without such bill or was injured by the failure to furnish it.
    4. Continuance, § 71*—when motion of defendant for in criminal case properly denied. Where the defendant in a criminal prosecution for selling intoxicating liquors in anti-saloon territory did not ask for a bill of particulars until the time of trial and a month or more after he had been in court, held that his motion for a continuance to allow him opportunity to see and investigate the witnesses whose names were then furnished him by such bill and who lived in other cities was properly denied.
    5. Intoxicating liquors—who are legal voters at election. Women are legal voters at an election under the act providing for anti-saloon territory.
    6. Pleading, § 432*—what is office of a videlicet. The office of a videlicet is to indicate that the pleader does not undertake to prove the precise circumstances alleged.
    7. Pleading, § 432*—when rule as to videlicet inapplicable. The rule that a videlicet indicates the pleader does not undertake to prove the precise circumstances so alleged does not apply to a videlicet which is material to the charge.
    8. Intoxicating liquors, § 117*—when date of sale of may be alleged under a videlicet. In a prosecution for selling intoxicating liquors in anti-saloon territory, the date of a sale is not material, provided it was after the date the territory became anti-saloon and before the date of filing the information, and may be alleged under a videlicet.

    9. Witnesses, § 267*—what weight should be given to testimony of a detective. The testimony of a detective is to be treated like that of any other witness, and his interest, if any, in securing compensation from and success for his employer is to be considered the same as the interest of any other witness, and the jury are judges of whether he shall be believed.
    10. Intoxicating liquors, § 150*—when proof of intoxicating quality unnecessary. Proof that the defendant sold spirituous, vinous or malt liquors is sufficient to sustain a. conviction under the anti-saloon law without proving their intoxicating quality.
    11. Intoxicating liquors, § 150

      —when proof of intoxicating quality necessary. To sustain a conviction under the anti-saloon law for selling liquors not named in the law there must be proof of their intoxicating quality.
    12. Intoxicating liquors—what is question involved in prosecution for sale of malt liquors. If a statute forbids the sale of malt liquors, it is only necessary in a prosecution thereunder, to determine whether the liquors sold were malt.

      13. Intoxicating liquors, § 129*—what judicial notice taken of. Courts take judicial notice in a criminal case that whisky is a spirituous liquor.
    14. Intoxicating liquors, § 144*—when witnesses competent to testify as to quality of intoxicating liquor. Certain witnesses held competent to testify whether certain liquors drunk hy them were intoxicating liquors or malt liquors or whisky, where their testimony showed they could tell the character and quality of what they drank by drinking it.
    15. Intoxicating liquors, § 145*—when intoxicating quality of is question for jury. Where the evidence was conflicting in a criminal case as to whether certain liquors sold by defendants and drunk by a certain witness were intoxicating or malt or whisky, held that the question was for the jury.
    16. Intoxicating liquors, § 131*—when evidence of lack of knowledge of intoxicating quality hy seller is incompetent. In a prosecution for selling intoxicating liquors ■ in anti-saloon territory, evidence tending to show the defendant did not know the liquors sold by him were intoxicating, held not competent, as in cases of this character the defendant’s intention is immaterial.
    17. Intoxicating liquors, § 112*—when former prosecution no defense. A conviction for violation of a city ordinance as to selling intoxicating liquors, held to be no defense to a prosecution for violation of the anti-saloon law.
    18. Criminal law, § 452*—what must appear in hill of exceptions. In the absence of an order of court appearing in the record of the court that the jury in a case were to be kept together during trial, held that fact could only be shown, if at all on review, by the certificate of the court in the bill of exceptions.
    19. Criminal law, § 444*—^what must appear in hill of exceptions. What was done by the court in a criminal case must be shown by the bill of exceptions containing a statement by the trial judge to that effect, and cannot be shown by an affidavit, but such affidavit must be disregarded.
    20. Criminal law, § 109*—what is nature of offense of selling liquor in anti-saloon territory. Violation of the statute relating to selling intoxicating liquor in anti-saloon territory is a misdemeanor merely.
    21. Criminal law, § 321*—when jury may separate. In misdemeanors it is not error for the jury to separate.
    22. Intoxicating liquors, § 150

      —when evidence sufficient to sustain conviction for illegal sale. In a prosecution for selling intoxicating liquors in anti-saloon territory, evidence held to make a case under the twenty-four counts of the information.

      23. Intoxicating liquobs, § 161*—when judgment excessive for illegal sale in anti-saloon territory. Pines of $75 on each of twenty-two counts and $100 on each of two counts of an information for violation of the statute relating to selling intoxicating liquors in anti-saloon territory, held, to be excessive, where the information was filed soon after that law went into force in that territory and there was no direct proof of any sales to any residents of the territory or other than to two detectives resident elsewhere.
    24. Intoxicating liquobs, § 161

      —when fines reduced and judgment modified. Where the fines assessed for violations of the statute for selling intoxicating liquors in anti-saloon territory were excessive, held that such fines should be reduced and judgment modified accordingly.
    Error to the County Court of Lake county; the Hon. Pebby L. Pebsons, Judge, presiding. Heard in this court at the October term, 1916.
    Modified and affirmed.
    Opinion filed February 10, 1917.
    Rehearing denied April 12, 1917.
    P. L. Jorgenson, for plaintiff in error.
    James G. Welch, John W. Welch, Ralph J. Dady and E. M. Runyard, for defendant in error; W. F. Weiss, of counsel.

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

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

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

On June 19, 1916, the State’s Attorney of Lake county filed an information in the Oounty Court against William McCanney, charging him with the unlawful sale of intoxicating liquor in the Town of Waukegan in said county, while it was anti-saloon territory. The information contained forty-one counts. He was tried by jury and found guilty under each. Afterwards, the State dismissed seventeen of said counts and under the other counts he was fined an aggregate of $1,850, was sentenced to imprisonment in the county jail for fifty days in all, and it was ordered that the place which he kept should he abated as a nuisance until he gave the bond required by statute, and he afterwards gave snch a bond and it was approved. At about the same time five other informations were filed in the same court, containing like charges against five other defendants and there were trials and convictions, and those cases are here for review, under general numbers 6332, 204 Ill. App. 124; 6333, 6334, 6335 and 6336, post, pp. 104, 105, 106 and 107. In each case the last count charged the keeping of a nuisance and sought its abatement, and in each case the State, by leave of court, filed an amended last count to correct the description of the premises sought to be abated. The same counsel appear in each case and the main contentions of each brief are the same, there being in each brief a few pages devoted specially to that particular case. Most of the contentions of the respective plaintiffs in error will be disposed of in this opinion.

In each case the defendant applied for a bill of particulars. The State complied in part with the application by furnishing the street addresses and places of residence of the witnesses whom the people would call, except those living in Waukegan, who would be called to prove that it became anti-saloon' territory. The court, however,-refused to require the State to set forth in a bill of particulars the kinds and brands of intoxicating liquor alleged to have been sold by the" defendant, and to state by whom the liquor was sold, and whether the party selling was principal or agent, and to further describe the place where the liquor was sold. In each ease the defendant claims that this refusal was reversible error, and relies largely upon what we said and the authorities we cited in Gilmore v. People, 87 Ill. App. 128. That was a conspiracy to obtain money by false pretenses and by the confidence game. In support of the application it was shown that the alleged conspiracy as to the other defendants had proceeded for some thirty days and many of the acts relied upon to show guilt had been performed before Gilmore had any connection with the matter, or had ever even known or seen any of- the parties to the transaction, and he became acquainted with the matter only nine days before the completion" of the alleged conspiracy. The language used is to be considered in connection with those facts. Here, each defendant knew better than the State possibly could what liquids he sold at his place of business and what clerks or assistance he employed, and he needed no information from the State on those subjects, and the back of the indictment gave him the names of those to whom the State would claim sales had been made, and the State then furnished to defendant the addresses of those witnesses. Since the Gilmore case, supra,- was decided, numerous later cases have somewhat modified the rule we there laid down, as we held in People v. Brown, 150 Ill. App. 365; People v. Walker, 154 Ill. App. 3; People v. Maas, 154 Ill. App. 11, all of which were prosecutions for the illegal sale of liquor. Since the cases which we there cited, it has been held.in People v. Smith, 239 Ill. 91; People v. Nall, 242 Ill. 284; People v. Poindexter, 243 Ill. 68; and People v. Gray, 251 Ill. 431, that the question whether the State should be required to furnish a bill of particulars, and the character of such bill, rests in the sound legal discretion of the trial court, and that its refusal will not be error, unless it is made to appear that the defendant could not properly prepare his defense without such a bill or that he was injured by the failure to furnish it. We are of opinion that the court did not err in this case on that subject.

In the present case, after information was furnished in answer to the request for a bill of particulars, defendant moved for a continuance because he had' not had an opportunity to see and investigate the witnesses for the People, whose places of residence had just been furnished him and who lived in Chicago and • Bloomington. Defendant did not make this application for a bill of particulars until the day the case was called for trial. He had been in court for a month or more and could not delay the trial by waiting that long before asking for this information.

In one or more of the cases, during the impanelment of the jury, defendant’s attorney asserted that jurors were being called who had worked for the success of the proposition to make that anti-saloon territory at the recent election. He did not offer any proof of this statement, and, if the examination of the jurors showed it, he did not incorporate such showing in his abstract. In one or two of the other cases other rulings in the impanelment of the jury are complained of. The abstracts do not show that any defendant exhausted his peremptory challenges or had an unfair juror put upon him or was injured by the rulings of the court in impaneling the jury.

Although defendants concede in their briefs that the City of Waukegan is located in the Town of Waukegan and that it became anti-saloon territory on May 4, 1916, yet they also contend that the court erred in not requiring the State, in introducing the certificate of the clerk showing the election and the result thereof, to show separately the vote of the women and the vote of the men on that proposition, and in one of the cases the defendants proved the number of male voters and the number of female voters who voted for and against said proposition, and thereby showed that it was carried only by the vote of the women; and it seems to be contended that the women were not competent to vote on that subject and therefore the City of Waukegan was not in anti-saloon territory. The act providing for anti-saloon territory requires the proposition to be submitted to the legal voters of the political subdivision to be affected thereby. The Act of June 26, 1913, granting to women the right to vote in certain cases, authorizes them to vote upon propositions submitted to a vote of the electors of cities, villages and towns and other political divisions of the State. In Scown v. Czarnecki, 264 Ill. 305, it was held that said act is constitutional, so far as it relates to propositions submitted at a referendum election, which are not provided for in the Constitution, but only in the statute. The proposition to make a municipality anti-saloon territory is not provided for in the Constitution but only in the statute, and therefore women are legal voters at such an election.

In some of these cases there whs a variance between the dates alleged in the counts of the information and the dates when sales were proved, and it is alleged that such variance is fatal. All the dates of alleged illegal sales stated in the information were laid under a videlicet. The office of the videlicet is to indicate that the pleader does not undertake to prove the precise circumstances alleged. 2 Bouvier’s Law Dictionary, title “Videlicet”; Rose v. Mutual Life Ins. Co., 144 Ill. App. 434. This rule does not apply if the matter stated under a videlicet is material to the charge. Here, the date of the sale was not material to the charge, provided it was after the city became anti-saloon territory and before the information was filed. There was therefore no error in that respect.

The evidence of illegal sales of intoxicating liquor introduced by the State was the testimony of two men who called themselves “investigators.” They were in the employ of an organization to enforce the liquor laws of the State at a certain price per day and their expenses. They were sent to Waukegan and placed themselves under the direction of the State’s Attorney. They were brothers. They rented a room in which to live, and then proceeded under the direction of the State’s Attorney to visit frequently various places in the city where soft drinks were claimed to be sold by men who had kept saloons at those respective places before the city became anti-saloon territory. One of these investigators engaged in some kind of work. They called for and obtained various kinds of drinks and drank them, and played cards and gambled, and came to the various places from time to time. One of them carried a bulb syringe in his pocket and one or more empty bottles. One of them would manage to lower his glass or bottle below the table and fill a syringe from it, or he would go to the toilet carrying a bottle of liquor he had purchased and there with his syringe take out a part of it and place it in an empty bottle in his pocket. They would then return to their room, seal up this bottle and mark it so as to distinguish it from other bottles, and one of them would set down in a book they kept, memoranda showing what liquor they had called for at each place, and the character of what they had obtained. The other one saw the entries that were made. Afterwards they delivered these samples to a chemist at the Wesleyan University at Bloomington who analyzed the contents of the several bottles and testified what kind of liquor they were and what proportion of alcohol they contained. Before each trial these investigators or detectives refreshed their recollection from the minutes they had made in the book they kept, and from their recollection, so refreshed, each gave testimony in which he stated the number of drinks he had purchased and drank at each particular place on each particular day and his opinion of the character of the liquor they drank, as, that it was malt liquor, or that it was cider with whisky in it, or that it was intoxicating. It is contended that the jury should not have believed these detectives and that this court should not believe them. We expressed our views on this subject in People v. Gardt, 175 Ill. App. 80 (affirmed in 258 Ill. 468); and in People v. Sehrer, 196 Ill. App. 442; and People v. Fichter, 196 Ill. App. 516. The true rule we held to be that the testimony of a detective is to be treated like that of any other witness, and his interest, if any, in securing compensation from and success for his employer is to be considered the same as the interest of any other witness, and that the jury are the judges of whether he shall be believed. See also, Hronek v. People, 134 Ill. 139; People v. Campbell, 234 Ill. 391.

The act relating to anti-saloon territory makes it unlawful to sell intoxicating liquor in such territory, and section 1 of said Act (J. & A. If 4637) provides that the term “intoxicating liquor’’ shall include all distilled, spirituous, vinous, fermented and malt liquors. Proof of the sale of pop and that it was a malt liquor was held to justify a conviction in Godfriedson v. People, 88 Ill. 284. Proof of the sale of cider is not sufficient to convict, but if the proof also shows that it intoxicated those who drank it, then a conviction is authorized. Hertel v. People, 78 Ill. App. 109. If it is proved that defendant sold spirituous, vinous or malt liquor, that is sufficient to sustain a conviction without proving their intoxicating quality, but as to liquors not named in the statute, it must be proved that they are intoxicating. Hewitt v. People, 186 Ill. 336. If a statute forbids the sale of malt liquor, it is only necessary to determine whether the liquor sold was a malt liquor, and its intoxicating properties need not be shown. 23 Cye. 57-64; State v. Cummings (Iowa), 2 L. R. A. 408. Courts take judicial notice that whisky is a spirituous liquor. 16 Cye. 856, note. It is contended that the Court erred in permitting the detectives to testify that certain liquid which they drank in the places of these several defendants was intoxicating liquor or malt liquor or whisky. We are of opinion that they showed by their testimony that they could tell the character and quality of what they drank by drinking it, and that a sufficient foundation was laid for the introduction of their opinion. It was held in Com. v. Timothy, 8 Gray (74 Mass.) 480, that it is competent to permit a witness to testify that a certain liquor is a malt liquor. The defendants .offered proof in several of these cases to show that what the detectives drank and what the defendants sold was not intoxicating, nor whisky nor a malt liquor. That left a question of fact for the jury to determine, and in the present case we see no reason to differ from their conclusion.

In some of the cases the defendant succeeded in proving that he supposed or had been assured that what he sold was not intoxicating but, in other instances, that proof was kept out, and the attorney for one defendant was not permitted to state to the jury that he would introduce evidence tending to show that defendant supposed that the drinks he sold were not intoxicating. In cases of this character the intention of the defendant is not material and therefore this proof was not competent nor a defense. McCutcheon v. People, 69 Ill. 601; Farmer v. People, 77 Ill. 322; Maguire v. People, 219 Ill. 16; People v. Nylin, 139 Ill. App. 500, and 236 Ill. 19. The jury could only decide the question of guilt or innocence and had nothing to do with the punishment.

In the present case, defendant alleges that he proved a former conviction for the same offense. This is not a correct statement of the evidence. The alleged former conviction was before a justice of the peace on May 17, 1916, and was for a violation of a city ordinance. All proof in this case was of sales at a later date, and a conviction for violation of a city ordinance would not be a defense to a prosecution for a violation of the statute here involved.

Complaint is made of remarks by the court in the presence of the jury in rulings upon the evidence. We do not find reversible error in them. It is to be noted that frequently where the court overruled an objection by defendant to a question, the answer is not given in the abstract.

In one of these cases, in support of a motion for a néw trial, an affidavit was filed which stated that the court ordered the jury to be kept together during the trial and that in violation of that order one juror went to Chicago after the court adjourned at night and returned later in the evening, and it is urged that this was a violation of defendant’s'rights. We are unable to find either in the abstract or in the record any order requiring the jury to be kept together. In the absence of any order appearing in the records of the court, that fact could only be shown, if at all, by the certificate of the court in the bill of exceptions. What was done by the court must be shown by the bill of exceptions containing a statement to that effect by the trial judge, and cannot be shown by an affidavit, and such affidavit may be disregarded. Mayes v. People, 106 Ill. 306; Peyton v. Village of Morgan Park, 172 Ill. 102; Deel v. Heiligenstein, 244 Ill. 239; People v. Strauch, 247 Ill. 220. We so held in Tindall v. Chicago & N. W. Ry. Co., 200 Ill. App. 556, in which case the Supreme Court denied a certiorari. Such an affidavit was considered in the very recent case of People v. King, 276 Ill. 138, but its competency was apparently not questioned by counsel. The authorities we have above cited were not referred to and we do not think they should be considered as overruled by implication. Moreover, these are misdemeanors merely, and in misdemeanors it is not error for the jury to separate. Even in felonies not capital, it is not error for the jury to separate. Sutton v. People, 145 Ill. 279. It is not shown that defendant was harmed in any way by the fact that the juror went to Chicago.

In this case the judgment rests upon twenty-four counts, including the last or ‘‘nuisance” count. Besides sales of malt liquor, there was proof of some thirty-seven sales of ginger ale and whisky combined, and the chemist testified that he analyzed one of the samples of the latter furnished him by one of the detectives and found that it contained 14.18 per cent, of alcohol by volume. This proof made a case under the twenty-four counts. One of defendant’s witnesses testified that he saw one of the detectives putting whisky in the ginger ale. Others testified that the buck, etc., which they drank at defendant’s place was not a malt liquor. A chemist testified that he analyzed buck in Chicago furnished him by the company which sold this drink to the defendant, and that the buck he so analyzed was not a malt liquor. None of this was proved to be the same liquor or from the same receptacle from which defendant sold drinks to the detectives. We would not be warranted in saying that the jury should have believed defendant’s witnesses and should have disbelieved those for the State.

By the judgment of the court defendant was fined $75 on each of the counts numbered 1 to 5 inclusive, 9 to 12 inclusive, 27 to 39 inclusive, and $100 on each of the fortieth and forty-first counts, besides imprisonment under the fortieth and forty-first counts, making the total of fines $1,850. In view of the facts in this particular case shown in the evidence, and especially that this indictment of this defendant was obtained soon after the anti-saloon law went into force in that territory, and that there is no direct proof that defendant sold intoxicating liquor to any residents of said anti-saloon territory or to any persons except the two detectives, we conclude that the fines are unnecessarily severe for the accomplishment of the purposes of the law. Unless defendant is a wealthy man they bankrupt him and drive him out of a business which he conducts at that place, and which, except in this one particular, is entirely legitimate. It has been a serious question with us how we can afford relief in this respect. We conclude to modify each one of these fines by reducing the fine under each count excepting the fortieth and forty-first to $37.50, and the fines under the fortieth and forty-first to $50 each, which will make the total fines $925. As so modified the judgment will be affirmed.

Judgment modified and affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Thomas H. McCann, Plaintiff in Error.
    Gen. No. 6,333.
    (Not to be reported in full.)
    Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Rehearing denied April 12, 1917.
    Statement of the Case.
    '.Prosecution by the People of the State of Illinois, plaintiff, against Thomas H. McCann, defendant, for violation of the act relating to anti-saloon territory. From a judgment for conviction under three counts, including the nuisance count, defendant brings error.
    P. L. Jorgenson, for plaintiff in error.
    Ralph J. Dady and E. M. Runyard, for defendant in error; W. F. Weiss, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

Intoxicating liquors, § 147*—when evidence sufficient to sustain conviction. The evidence held to sustain a conviction under the anti-saloon law for selling cider and buck, proved to be intoxicating.


text:
    The People of the State of Illinois, Defendant in Error, v. Mike McGuire, Plaintiff in Error.
    Gen. No. 6,334.
    (Not to be reported in full.)
    Abstract of the Decision.
    Intoxicating liquors, § 147

      —when evidence sufficient to sustain conviction. Evidence held to sustain a conviction under the anti-saloon law for selling buck, aleo and cider, proved to be a malt liquor or intoxicating.
    Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Rehearing denied April 12, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Mike McGuire, defendant, for violation of the act relating to anti-saloon territory. From a judgment for conviction under four counts, including a nuisance count, defendant brings error.
    P. L. Jorgenson, for plaintiff in error.
    Ralph J. Dady and E. M. Runyard, for defendant in error; W. F. Weiss, of counsel.

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

   Mr. Justice Dibell

delivered, the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. George Cessar, Plaintiff in Error.
    Gen. No. 6,335.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    1. Intoxicating liquors, § 147

      —when evidence sufficient to sustain conviction. Evidence held sufficient to sustain a conviction under the anti-saloon law for selling cider, proved to be intoxicating.
    2. Intoxicating liquors, § 147*—when evidence sufficient to sustain conviction under nuisance count. Proof justifying conviction under the anti-saloon law for selling intoxicating liquors, held to authorize conviction also under a nuisance count under the law.
    Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Rehearing denied April 12, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against George Cessar, defendant,-for violation of the anti-saloon territory law. Prom a judgment for conviction under thirteen counts, including the nuisance count, defendant brings error.
    P. L. Jorgenson, for plaintiff in error.
    Ralph J. Dady and E. M. Runyard, for defendant in error; W. F. Weiss, of counsel.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Joe Polansek, Plaintiff in Error.
    Gen. No. 6,336.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Intoxicating liquors, § 147

      —when evidence insufficient to sustain conviction for selling dder. Evidence held not to sustain conviction under the anti-saloon law for selling cider, un^er the evidence of defendant, and the man from whom he bought the cider shortly before the sale shown as the basis for conviction, that it was sweet cider and not hard cider or fermented liquor.
    2. Intoxicating liquors, § 147*—when evidence suffident to sustain conviction. Evidence held sufficient to sustain conviction under the anti-saloon law for selling malt liquor.
    Error to the County Court of Lake county; the Hon. Pebby L. Persons, Judge, presiding. Heard in. this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Rehearing denied April 12, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Joe Polansek, defendant, for violation of the act relating to anti-saloon territory. From a ¡judgment for conviction under fifteen counts, including a nuisance count, defendant brings error.
    P. L. Jorgenson, for plaintiff in error.
    Ralph J. Dady and E. M. Runyard, for defendant in error; W. F. Weiss, of counsel.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Katherine L. Fessenden, Appellee, v. Travelers Insurance Company, Appellant.
    Gen. No. 6,344.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 667

      —when evidence sufficient to sustain verdict for plaintiff in action on accident policy. In an action upon an accident insurance policy to recover for the death of the insured, a man sixty-eight years of age, and in good health, where plaintiff claimed that death was caused by slipping and falling upon an icy sidewalk and striking the back and head, and the defense was that death was caused through the stopping of the heart due to a diseased condition, and the coroner’s jury found that the deceased came to his death as the result of a diseased- condition, evidence held sufficient to sustain a verdict for plaintiff.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Rehearing denied April 19, 1917.
    Statement of the Case.
    Action on a policy of accident insurance on the life of C. N. Fessenden by the beneficiary, Katherine L. Fessenden, plaintiff, against the Travelers Insurance Company, defendant. From a judgment for plaintiff for $7,500, defendant appeals.
    Frank M. Cox and R. J. Fellingham, for appellant; Raymond & Newhall, of counsel.
    J. A. Connell and Alschuler, Putnam & James, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Insubance, § 667*—what is effect of witnesses not testifying positively as to cause of death. In an action upon an accident insurance policy to recover for the death of the insured, where the defendant claimed that there was a fatal defect in plaintiff’s proofs because no physician testified positively that the fall in question caused the insured’s death, held that such contention excluded the inferences which the jury might reasonably draw from the proof of what did occur. .

3. Tbial, § 78*—when evidence competent in rebuttal. In an action upon an accident insurance policy to recover for the death of the insured, where the defendant objected to the introduction by plaintiff, after the defense had put in its proof, of the testimony of the witnesses who held one of the post-mortems, held that such evidence was competent in rebuttal.

4. Tbial, § 78*—what is competent rebuttal evidence. Where, in an action upon an accident insurance policy to recover for the death of the insured, the defendant’s witnesses had testified that hardening of the arteries of an old person was a disease, held that testimony for plaintiff that such hardening was an ordinary incident of old age and was not considered a disease, was competent in rebuttal.

5. Instructions, § 151*—when refusal proper. Where the material portions of refused instructions are contained in given instructions, such refusal is not error.


text:
    Grace L. Ferry, Administratrix, Appellee, v. City of Waukegan, Appellant.
    Gen. No. 6,400.
    1. Tbial, § 195

      —when instruction to find for defendant is properly refused. An instruction to find for the defendant must be refused where there is evidence fairly tending to make a case for the plaintiff, even if the evidence is such that, if a verdict was returned for the plaintiff, the court would feel bound to grant a new trial.
    2. Appeal and error, § 1735*—when former decision not controlling on second appeal. Where a former judgment in a personal injury case was reversed on the ground that there was evidence fairly tending to make a case for the plaintiff and that the court was not warranted in directing a verdict for the defendant, and, on appeal from a judgment in favor of plaintiff in the second trial, it was claimed that such former decision was decisive, held that such former decision did not determine that a weighing of the evidence on a motion for a new trial or on an appeal would support the verdict, and that therefore the merits must be considered on the second appeal.
    3. Municipal corporations, § 1098*—when evidence sufficient to sustain finding that automobile ran over material in street. In an action against a city for death caused by plaintiff’s intestate being ’thrown from an automobile which struck something while running along a street in the nighttime, where the plaintiff claimed that the automobile struck a pile of building material contained in the street, and the defendant claimed that the driver ran against the curb and thereby produced the accident, and did not run over the pile of material, evidence held sufficient to sustain the finding that the automobile ran over the material.
    4. Municipal corporations, § 1098*—what constitutes prima facie case of negligence due to allowing .building material on street. In an action against a city for death caused by plaintiff’s intestate being thrown from an automobile which in the nighttime struck against a pile of building material in a street, where it appeared that the material had been in the street for an unreasonable length of time, and that a considerable time before the accident in question the city was notified that it was dangerous to have the pile there at night without danger signals on it, and that the proper officers had promised to have that attended to, but nothing was done, held that the jury could reasonably find that it was negligence for the city to have the material in the street at the time of the-accident, and that plaintiff had therefore made a prima facie case.
    5. Appeal and error, § 1265

      -—when presumed that, jury found against defendant as to contributory negligence of occupant of automobile. In an action against a city for death caused by plaintiff’s intestate being thrown from an automobile in which he was being driven, upon its striking a pile of material in a street, where the accident occurred about half an hour after sundown, and the lamps on the automobile were not lighted, and the defendant claimed that the failure to light up was in violation of section 4 of the Motor Vehicle Act of 1911 (J. & A. If 10004), requiring motor vehicles to carry lamps from sunset to one hour before sunrise; and that such negligence of the driver was also attributable to the deceased, who was aware that the lights were not lit, held that it was not clear from the evidence that the failure to have lights on the automobile contributed to the accident, and as the instructions were not in the abstract and no complaint was made concerning them, it must be presumed that proper instructions were given concerning the contributory negligence of the deceased, and that the jury determined that fact against the defendant.
    6. Municipal cobpobations, § 1098*—when evidence in action against city sufficient to sustain finding for plaintiff as to speed of automobile. In an action against a city for death caused by an automobile in which deceased was riding striking a pile of material in a street, where'the evidence was conflicting as to whether the speed of the automobile exceeded the limit of fiften miles per hour as fixed by section 10 of the Motor Vehicle Act (J. & A. If 10010), and it appeared that the blood upon the pavement furthest from the material was seventy-five to eighty-two feet therefrom, and it was claimed that this required the jury to' find that the speed greatly exceeded fifteen miles per hour, but there was the positive evidence of' several witnesses that the speed was less than fifteen miles per hour, evidence held sufficient to sustain a finding for plaintiff as to the speed of the automobile.
    7. Negligence, § 112

      —when negligence of driver of vehicle not bar to recovery by passenger. Negligence of the driver of a vehicle does not usually bar recovery against a third person by a passenger who has no control over the driver.
    Appeal from the Circuit Court of Lake county; the Hon. Claibe C. Edwabds, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Rehearing denied April 12, 1317.
    Arthur Bulkley, for appellant.
    Cooke, Pope & Pope and Alex Beaubien, for appellee.

      See Illinois Notes Digest, Yols. 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 Dibell

delivered the opinion of the court.

On December 9, 1912, Edward L. Ferry was killed in an automobile accident on a street in Waukegan. He left next of kin, and the administratrix of his estate brought this suit to recover damages for their loss. On the trial defendant had a judgment, which we reversed in 196 HI. App. 81. Upon another trial plaintiff had a verdict and a judgment for $3,000, from which defendant appeals. It is not claimed that the court erred in any rulings on the evidence. The instructions are not set out in the abstract. The only grounds on which a new trial was sought were that the verdict was not supported by the law or the evidence.

Appellee contends that our former decision is decisive of the case now presented. At the former trial the verdict was based upon an instruction directing the jury to find the defendant not guilty. Our former decision was that there was evidence fairly tending to make a case for the plaintiff and that in such case the court was not warranted in directing a verdict for the defendant. Such an instruction under such circumstances must be refused, even if the evidence is such that, if a verdict was returned for the plaintiff, the court would feel bound to grant a new trial. Libby, McNeill & Libby v. Cook, 222 Ill. 206. Therefore our former decision did not determine that a weighing of the evidence on a motion for a new trial or on an appeal would support the verdict. Therefore the merits must here be considered.

James Ferry, a brother of deceased, owned the automobile and was running it. A Mr. Neal sat on the front seat with him. Henry Sine sat on the back seat with deceased. They had just started from Waukegan to return to their homes in Zion City. As they were going north in Sheridan Eoad, in a residence part of the city, they met a team hauling a hayrack and nearly in the center of the paved way. The driver turned to the east to pass around the wagon. There was a pile of building material, composed of cement; gravel and sand, in the street. The automobile struck something. It is the contention of appellee that it struck this pile of material; that the automobile went over and beyond it some little distance and finally ran into a stepping block at the curb. The left front wheel of the automobile broke down. Deceased was flung into the street, was picked up unconscious and died that night. The pile in the street was a little ways west of the curb and was two or two and one-half feet high and probably four feet wide. The paved way was thirty-six feet wide. The evidence was that the top of the pile was knocked off and that there was a broad mark across at the top, such as would be made by an automobile wheel. Appellant showed that there were on the curb, beginning about seven feet south of the pile and extending north nearly to said stepping block, several fresh abrasions on the face of the curb, and it contended that the driver ran against the curb and thereby produced this accident, and did not run over the pile of material. This was a question of fact for the jury and we see no reason to disturb its conclusion that the automobile ran over the material.

It is not unlawful to permit building materials to be placed in a street preparatory to building on the adjacent land, if the street is not thereby improperly obstructed ; but the materials must be removed within a reasonable time. Tolman & Co. v. City of Chicago, 240 Ill. 268. The evidence makes it probable that this material was placed on this street in July or August and makes it certain that it was there in September. The necessity for its presence on the street was over a long time before this accident. The city was notified long before this accident that this material ought to be removed, and its officers promised to attend to the matter, and they did remove a part of the material that had previously been there. About two weeks before this accident the city authorities cleaned up this street in that vicinity except that it left this pile. Quite a while before this accident the city was notified that it was dangerous to have that pile there at night without danger signals upon it, and the proper officers promised to have that attended to, but nothing was done. We are of opinion that the jury could reasonably find that it was negligence for the city to have that pile of material there at the time of the accident. Appellee therefore made a prima facie case.

Section 4 of the Motor Vehicle Act of 1911 (J. & A. ft 10004) requires motor vehicles to carry lighted lamps from sunset to one hour before sunrise. This accident occurred about thirty minutes after sundown, and the lamps on this automobile were not lighted. It is claimed that this was negligence that should bar a 'recovery. The negligence of a driver does not usually bar a recovery by a passenger who has no control over the driver. Chicago & A. R. Co. v. Vipond, 212 Ill. 199; Nonn v. Chicago City Ry. Co., 232 Ill. 378; Yeates v. Illinois Cent. R. Co., 241 Ill. 205; Dudley v. Peoria Ry. Co., 153 Ill. App. 619. But appellant contends that to permit this automobile to proceed with a light in violation of law is also the negligence of the passenger who is injured, under Flynn v. Chicago City Ry. Co., 250 Ill. 460. About a mile before the place of the accident was reached, Sine, sitting on the back seat with deceased, asked James Ferry, the driver, if his lights were lit, and the driver replied that he would light them when he reached the end of the street lights. It was not yet dark and the street lights were on. Deceased was in a conversation with Sine about • a proposal concerning a business trip to the west to be made by the two together. At most, it was a question of fact for the jury whether deceased should have insisted on leaving the car unless its lamps were immediately lighted. It is not clear from the evidence that the failure to have lights on the automobile contributed to the accident. The automobile was proceeding in the same line of travel as that on which the hay-rack was coming. When the driver nearly reached the hayrack he turned suddenly to the east to go around it and then was first confronted with this pile of material. It is not clear that he would have seen the material any sooner if his lights had been on. As the instructions are not in the abstract and no complaint is made concerning them, we must assume that proper instructions concerning the contributory negligence of deceased were given, and that the jury determined that question of fact against appellant. Section 10 of said Motor Vehicle Act (J. & A. 10010) restricts the speed of automobiles in the residence portions of an incorporated city to fifteen miles per hour. The proof for appellee was to the effect that this' automobile was running within that limit. The proof introduced by appellant tended to show that the speed greatly exceeded the prescribed limit. The blood upon the pavement farthest from the pile of material proved to be from seventy-five to eighty-two feet therefrom, and it is insisted that this required the jury to find that the speed greatly exceeded fifteen miles per hour. There is force in this argument, but it assumes that the body of deceased left the automobile at the pile of material. The automobile was in fact in motion while the body of deceased was leaving the car, and it may be that the left front wheel did not entirely collapse, and deceased did not actually leave the car, until the automobile struck the stepping block. This also leaves .out of consideration the angle at which the car may have approached the material and what the driver may have done with the wheel after the automobile struck the material; and the driver was rendered unconscious and was unable to tell what did take place. We do not feel warranted in disturbing the conclusion of the jury, supported as it is by the positive evidence of several witnesses that the speed was less than fifteen miles per hour. We therefore think it unnecessary to determine whether the deceased, engaged in a business conversation with the man by his side on the back seat, was bound at his peril to take notice of the speed of the vehicle and to require it to be reduced or to leave the car.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Niehaus

text:
    John M. Smith et al., Plaintiffs in Error, v. George W. Smith and Robert W. Rank, Administrator, Defendants in Error.
    Gen. No. 6,234.
    (Not to be reported in full.)
    Error to the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Bill in equity by John M. Smith, Nellie M. Clow, Nellie Anderson, Arthur E. Johnson and Anne E. Smith, as heirs of John P. Smith, deceased, complainants, against George W. Smith, sole beneficiary, and Robert W. Rank, administrator with the will annexed of John P. Smith, defendants, to set aside the will of said deceased. From a decree dismissing the bill for want of equity, complainants bring error.
    William McEniry and Floyd E. Thompson, for plaintiffs in error.
    J. T. & S. R. Kenworthy, for defendants in error.

      Abstract of the Decision.
    1. Wills, § 20

      —what are not insane delusions. In proceedings to set aside a will where it was claimed that the unsoundness of mind of the testator was manifested by his search for gold or coal on his farm, and that his belief that gold could be found in paying quantities was a delusion resulting from an unsound state of mind, and it appeared that the notions which the testator had concerning the probability of finding gold or coal were not purely imaginative but had some basis in fact, held that such ideas of the testator were conclusions and not delusions.
    2. Wills, § 20*—what constitutes a delusion. In proceedings to set aside a will where it was claimed that the testator suffered from delusions resulting from an unsound mind, held that a delusion is not a deduction from facts, hut something purely imaginative, a figment of the brain.
    3. Wills, § 20*—what are not delusions. Where the notions of a testator charged with suffering from delusions resulting from an unsound state of mind are based upon some sort of evidence, however insufficient, such notions are deemed conclusions and not delusions.
    4. Wills, § 20*—when existence of insane delusions not shown. An insane delusion is not established when the court is able to understand how a person situated as the testator was might have believed all that 'the evidence shows that he did believe, and still have been in full possession of his senses.
    5. Wills, § 20*—what does not constitute a delusion invalidating will. Where a testator has actual grounds for suspicion of the existence of something in which he believes, though in fact not well founded and disbelieved by others, a misapprehension of the fact is not a matter of delusion which will invalidate his will.
    6. Wills, § 30*—who has burden of proof as to sanity of testator. In the contest of a will upon the question of testamentary capacity, the burden of proving the sanity of the testator is in the first instance on the proponents, but after a prima facie case has been made out by the testimony of the subscribing witnesses, the legal presumption is in favor of sanity, and the burden of the whole case rests upon the contestants.
    7. Wills, § 19*—when senile dementia does not constitute mental incapacity to make will. While senile dem,entia is a weakening condition of the mind resulting from old age and bringing about a diminution of the mental faculties, it does not necessarily result in mental incapacity to make a will.

      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 Niehaus

delivered the opinion of the court.

8. Wills, § 19 —when evidence insufficient to show mental incapacity to make ‘Will. In a will contest where expert witnesses testified that the testator had senile dementia on a certain date and that he was so afflicted four months previous, when the will was made, but did not testify that such senile dementia which the testator may have had during the month the will was made was of such a character as to affect his testamentary capacity, evidence held insufficient to show mental incapacity to make a will.


text:
    The People of the State of Illinois, Defendant in Error, v. Frank Barney, Plaintiff in Error.
    Gen. No. 6,323.
    (Not to he reported in full.)'
    Error to the County Court of Boone county; the Hon. William C. De Wolf, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Frank Barney, defendant, for illegally selling intoxicating liquor in anti-saloon territory. From a judgment sentencing defendant to pay a fine of one hundred dollars and for confinement in the county jail for eighty days and ordering the place in which the liquor was sold to be abated as a nuisance, defendant brings error.
    William L. Pierce, for plaintiff in error.
    Patrick H. O’Donnell, for defendant in error.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

1. Intoxicating liquors, § 151*—when evidence insufficient to sustain conviction for illegally selling intoxicating liquor in anti-saloon territory. In a prosecution for illegally selling intoxicating liquor1 in anti-saloon territory and maintaining a nuisance, where a conviction was had upon two of eleven counts, and it appeared that of the four witnesses upon whose testimony the People relied for a conviction one did not sufficiently connect the plaintiff with the sale testified to, another was impeached and the remaining two must have been mistaken in their testimony, held that the verdict was not based upon sufficiently reliable evidence to sustain a conviction in a criminal case.

2. Chiminal law, § 207 —when abridgment of right of cross-examination prejudicial error. It is prejudicial error to unduly abridge the right of cross-examination to which a defendant in a criminal case is entitled.


text:
    Joseph Pedroni, Appellee, v. Illinois Third Vein Coal Company, Appellant.
    Gen. No. 6,337.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Statement of the Case.
    Action by Joseph Pedroni, plaintiff, against the Illinois Third Vein Goal Company, defendant, to recover damages for personal injuries sustained while in defendant’s employ as a coal miner. From a judgment for plaintiff for five hundred dollars, defendant appeals.

      Abstract of the Decision.
    1. Statutes, § 196

      —how construed. Statutes are to bé construed with reference to the purposes for which they are enacted.
    2. Mines and minerals—when mine operator liable for injury caused by falling of top of cage. In an action against a mine operator for personal injuries sustained by a miner while he was on a cage used in a coal mine for hoisting the miners, where it appeared that there was an opening in the top of the cage, that the door to cover this opening was standing upon its hinges, that the plaintiff, while hurriedly getting into the cage and reaching up for a handhold to steady himself, grasped the -edge of this open place, and that as he did so the said door fell and crushed his fingers, and plaintiff contended that the keeping of the door open was in violation of that portion of the statute requiring .such cages to be furnished with a sheet metal covering, held that the language of the statute did not indicate that its sole purpose was to protect miners who rode in cages from falling objects, and that it was, in effect, violated because at the time of the injury the cage was not in the condition in which the statute contemplated it should be, by reason of the failure to cover up the opening in the top of the cage.
    3. Appeal and error, § 1540*—when instructions not limiting negligence to that charged in declaration not reversibly erroneous. Where, in an action to recover for injuries sustained by a miner while in a cage in a coal mine, certain instructions given for the plaintiff were subject to the criticism that they permitted the jury to find for the plaintiff if the injury was caused by negligence in failing to provide a safe cage for plaintiff to ride in, without limiting such negligence to that charged in the declaration, held that as there was no evidence of negligence other than that charged, the instructions could not have harmed the defendant and the error was not sufficient to reverse.
    4. Mines and minerals—what is purpose of statute requiring metal covers on cages. In an action by a miner for injuries sustained in a coal mine through the falling of a door, standing upright on top of the cage in which the plaintiff was riding, failing on his hands while he had hold of the edge of an opening on the top of the cage, where the plaintiff claimed that such opening constituted a violation of that part of the Mines and Mining Act requiring cages used in the shafts for hoisting and lowering workmen into the coal mine to be furnished with a sheet metal cover, and the defendant claimed that tte only purpose of the statute was to protect persons in the cage from falling objects, held that the protection of persons against falling objects was the test of the adequacy of the covering rather than its sole purpose, and that the obvious meaning of the statute was, not only that such cages should be equipped with metal covers, but also that they should be in use as such when the cages were operated for hoisting miners.

      McDougall, Chapman & Bayne, for appellant; Mastin & Sherlock, of counsel.
    J. L. Murphy, for appellee.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

5. Instruction's, § 137*—when properly refused. Instructions stating that the jury must make their finding under their oaths concerning a certain feature of a case are properly refused.

6. Mikes and minerals, § 186*—when instruction in action by miner for injuries from falling of top of cage is erroneous. In an action for injuries sustained by a miner in a coal mine, where violation of a statute was involved and the plaintiff also charged common-law negligence, and defendant claimed that the only purpose of the said statute was to protect persons who were in a cage from falling objects, and that plaintiff was not entitled to recover because he was not injured by a falling object, held that an instruction practically directing a verdict for the defendant in case they found that the injury was not caused by a falling object was properly refused, as it limited the right of recovery to injuries resulting from a violation of the statute, and ignored the plaintiff’s right to recover if there was sufficient evidence under the counts charging common-law negligence.

7. Instructions, § 137 —when properly refused. An instruction leaving the jury to determine whether under the evidence there was a violation of a statute as a matter of law is properly refused.


text:
    Rev. Father J. Whelan, Appellee, v. Massachusetts Bonding & Insurance Company (Impleaded with William Underwood), Appellant.
    Gen. No. 6,338.
    1. Indemnity, § 23

      —when declaration in action on building contractor’s bond is not demurrable for failure to allege payment of money. In an action on an indemnifying bond insuring the performance of a building contract, where the declaration alleged as breaches the failure of the contractor to pay for materials which he was bound to furnish for the erection of the buildings resulting in the filing of mechanics’ liens, and subsequent further breaches were assigned, and it was alleged that since the commencement of the suit a decree in favor of the parties having mechanics’ liens had been entered, and a demurrer to the declaration on the ground that no payment of money was alleged, and that therefore no breach of the bond was shown, was overruled, and the defendant elected to abide by the demurrer and default was entered but no damages were assessed under the original declaration, held that the allegations of the declaration were sufficient to cover at least nominal damages, and that the plaintiff 'had the right to sue for a recovery of such damages when no substantial damages had yet accrued, and that under the Practice Act, sec. 35 (J. & A. If 8572), the plaintiff had the right to recover nominal damages under the declaration, if the averment came within the indemnity clause of the bond, and afterwards, if he suffered substantial damages, could assign additional breaches of the bond to recover such additional damages, and that therefore the original declaration was not demurrable.
    2. Indemnity, § 23*—-when declaration in action on bond sufficiently alleges delivery to defendant of written statement showing default of contractor. Where, in an action on an indemnifying bond, the defendant claimed that the declaration was demurrable on the ground that there was no proper allegation of the delivery to the defendant of a written statement of the facts showing the default of the contractor, within ten days of obtaining knowledge of the default, held that the allegation, although general in its terms, was not demurrable.
    3. Pleading, § 53*—when declaration is sufficient as against general demurrer. An allegation in a declaration alleging performance of precedent conditions in general terms is sufficient, at least as against a general demurrer.
    4. Indemnity, § 23*—when declaration in action on bond not demurrable on ground that action is prematurely brought. In an action on an indemnifying bond where it appeared that certain notices were Required to be sent as a condition precedent to the commencement of an action, and where a demurrer was filed on the ground that the action was prematurely brought, held that a demurrer would not lie on the ground stated, as it did not affirmatively appear on the face of the declaration that the action was prematurely brought.
    5. Indemnity, § 13*—when notice of default waived. The denial by an insurance company of all liability under an indemnifying bond waives the necessity of proof of any notice of default which may be required by the bond as a condition precedent to the maintenance of an action thereon.
    6. Indemnity, § 23*—when declaration in action on bond to insure performance of building contract shows interest of plaintiff in premises. Where, in an action on an indemnifying bond to insure the carrying out by the contractor of a church and parsonage building contract, it was claimed that no damage could result to the plaintiff, who was the pastor, on the ground that the premises were owned by a bishop of the church, held that while the declaration contained allegations that the legal title was vested in the bishop, it also contained averments that the premises were the property of the plaintiff, and the inference properly to be drawn under the demurrer was that the title held by such bishop was held by him in trust, and that the equitable ownership was in the plaintiff.
    7. Pleading, § 215*—what is effect of demurrer. A demurrer does not go to the question of damages.
    8. Indemnity, § 5*—who may indemnify himself by contract against damage by loss of property. The holder of any interest in property may legally indemnify himself by contract against damage he may suffer by its loss, and it is not necessary that he should hold the legal title.
    9. Pleading, § 200

      —what is effect of demurrer. A demurrer admits the averments in a declaration that the premises in question were the property of the plaintiff.
    10. Indemnity—when surety on building construction bond precluded from raising objection that declaration does not show ownership of premises in plaintiff. In an action against a surety company on a bond indemnifying plaintiff against loss under a building contract where, on demurrer, the defendant claimed that the declaration did not show ownership by the plaintiff of the property in question, held that the defendant was not in position to avoid the obligation by denying ownership in plaintiff, it having contracted with him for indemnity and received valuable consideration therefor on the basis of his ownership, and in legal effect had obligated itself to pay indemnity on that basis.
    11. Indemnity, § 23*—when special pleas to declaration in action on building construction bond are insufficient. In an action against a surety company on a bond indemnifying plaintiff against loss under a building contract, where the defendant in special pleas alleged that the plaintiff had no right to recover because the damages alleged did not accrue within the required period after the completion of the building, held that such pleas were demurrable, as such allegations were mere conclusions and no facts were alleged upon which an issue could have been tried.
    12. Indemnity, § 24*—when presumed that time limitation in bond for recovery of damages is waived. Where, in an action against a surety company on a bond indemnifying against loss under a building contract, it appeared that the bond provided that no recovery should be had for damages accruing after the lapse of a certain specified period, but it also provided that the plaintiff should preserve and exercise all rights provided for his protection by the lien laws, and plaintiff, before suing' on the bond, had contested the question of mechanics’ liens, and as such defense could not have been made within the time fixed by the bond, held that the defendant was legally presumed to have waived the limitation, and it therefore became inoperative.
    13. Indemnity, § 23*—when plea in action on building construction indemnity bond is demurrable as raising question of law. Where, in an action on an indemnifying bond, a plea was filed raising the question as to whether the limitation fixed in the bond relative to the accruing of damages was not waived or rendered inoperative, held that the question was one of law and could not be raised by plea, and that the demurrer to the plea was properly sustained.
    14. Indemnity, § 23

      —what defense should be specially pleaded to original declaration in action on building construction indemnity bond. Where, in an action on an indemnifying bond insuring the performance of a building contract, a default was entered under the original declaration, and additional breaches were assigned after the filing of the original declaration, and defendant claimed that the jury should have been instructed to find for the defendant on the ground that the plaintiff failed to perform and comply with a condition requiring plaintiff to exercise and preserve all right provided for his protection by the laws relating to liens, in that he failed to require the contractor to give a verified statement in! writing of the names of parties furnishing materials, etc., held that if the defendant was entitled to defend upon the ground stated, it was necessary that such defense should have been pleaded specially, and that it should have been pleaded to the original declaration, and as the question of plaintiffs liability had been adjudicated by the judgment on the declaration originally filed, the defendant could not reopen the question of liability in the matter of damages resulting from the alleged additional breaches, and could not reopen the question of its legal liability on the bond, in the motion to direct a verdict.
    Appeal from the Circuit Court of De Kalb county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Moses, Rosenthal & Kennedy, for appellant; Walter Bachrach, of counsel.
    Cliffe & Cliffe and Peffers & Wing, for appellee.

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

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

The appellee, Bev. John H. Whelan, a Catholic priest in charge of a church and parsonage as pastor at Maple Park, entered into a contract with one William Underwood of Waverly, Iowa, on the 14th of August, 1913, for the purpose of erecting a church building and parsonage, and under the terms of the contract Underwood, the contractor, was to furnish the work and materials necessary to build the church and parsonage, according to the plans and specifications which had been prepared, and to complete the same on or before January 1, 1914, and he was to be paid therefor the sum of $22,880. To secure the faithful performance of this building contract, the contractor, as principal, and the appellant as surety, executed to Father Whelan a bond in the penal sum of $11,440, which bond was to indemnify Father Whelan against any loss or damage which might result to him from a failure on the part of thé contractor to carry out on his part the terms of the building contract.

The church and parsonage were built by the contractor and completed within the time required by the 'contract, but it was found that the contractor had failed to pay for the materials which he had purchased for the buildings, and which had been used in constructing and completing them. The parties who had sold and delivered the materials for the church and parsonage filed claims for liens under the Mechanics’ Liens Act, and commenced suits to subject the premises upon which the church and parsonage had been built to mechanics’ liens, which had accrued to them by virtue of the statute because of the failure of the contractor to pay. Thereupon Father Whelan brought suit on the indemnifying bond in question, in an action of debt, in the Circuit Court of DeKalb county, and this is an appeal from the judgment which was rendered in the suit in favor of the appellee and against the appellant for $11,440 debt, and for damages to the amount of $5,965.11.

The suit was brought on the 26th day of May, 1914, against the appellant and William Underwood, the contractor and principal on the indemnity bond, but the appellant was the only party defendant who was served with process, and the suit was afterward dismissed as to William Underwood. The declaration was filed on October 16, 1914, and sets out the articles of agreement entered into with the contractor, and the indemnity bond executed by the appellant as surety for the contractor, and alleges, as breaches of the condition of the bond sued on, that the contractor had failed and refused to pay for the materials which, under the articles of agreement, he was bound to furnish and provide for the erection of the church and parsonage in question; that thereby a lien had accrued to the various parties who had furnished the materials not paid for by the contractor against the premises in question, and that some of the liens had already been filed against the premises. The appellant filed a general demurrer to the declaration, which was overruled by the court. The appellant elected to stand by its demurrer, and a default was entered against it for want of a plea, and judgment that the appellee recover the amount of his debt, and damages by him sustained by reason of the premises, but no assessment of damages was then made.

On April 27, 1916, the appellee made further assignments of breaches of the conditions of the bond, and it was then alleged that since the commencement of the suit certain mechanics’ liens against the premises had been prosecuted, and that on the 25th day of March, 1916, the court had entered a decree ordering and adjudging that various parties had furnished materials to the contractor for the erection of the buildings in question, before and during the erection thereof, and before the completion thereof, for which the contractor had failed to pay, and that the various parties were entitled to mechanics’ liens, and that the total amount of such liens was $11,440.

To the additional assignments of breaches of the conditions of the bond, the appellant filed five pleas, the first plea being non damnificatus; the second plea averred that the additional assignments of breaches of the conditions of the bond were not true; the third plea averred that the alleged damages set forth in the additional assignments did not accrue to the appellee within six months next succeeding the date specified in the contract for the completion of the buildings; the fourth plea averred, in addition to the allegation that the damages did not accrue to the appellee within six months next succeeding January 1, 1914 (the date fixed in the contract for the completion of the buildings), that the completion of the buildings was not prevented, delayed or hindered by any strike or other condition beyond the control of the contractor; and the fifth plea averred that the premises in question, which were subjected to the mechanics’ liens, set out in the additional assignments of breaches, were not the property of the appellee, but were at all times the property of Peter J. Muldoon, Catholic Bishop of Rockford.

The appellee filed a general demurrer to the second, third, fourth and fifth pleas, which was sustained by the court. A replication was filed to the plea of non damnificatus and issue joined, and upon this issue the case was submitted to the jury. The jury found the issues for the appellee, and that the debt due to the appellee, was $11,440, and assessed the appellee’s damages at $5,965.11.

At the dose of the evidence in the case the appellant made a motion for a peremptory instruction to direct a verdict in favor of the defendant, which was refused. Various errors are assigned by the appellant on this appeal, namely, that the court erred in overruling appellant’s demurrer to the declaration; that it erred in sustaining appellee’s demurrer to appellant’s third, fourth and fifth pleas filed to the additional assignments of breaches of the bond; and that the court erred in denying appellant’s motion for a peremptory instruction at the close of the evidence; also, that the court erred in denying appellant’s motion to set aside the assessment of damages made by the jury and for a new trial, and in arrest of judgment.

It is contended by appellant that the demurrer to the declaration should have been sustained because the bond sued on is one of indemnity against loss and damage sustained by the appellee, and that the allegations in the declaration do not show a breach of the conditions of the bond, because the appellee, at the time of the filing of the declaration, had not been compelled to pay any money, and that no payment of money is alleged. It is true that the condition of the bond alleged to have been broken is one to indemnify the appellee against any loss or damage directly arising by reason of the failure of the contractor to faithfully perform his contract, and that there are no averments in the declaration of any payments of money in consequence of any failure on the part -of the contractor ; and it is true that under the averments of the declaration it does not appear that any .substantial damages had been suffered by the appellee in consequence of the breach of the condition; but it also appears from the averments in the declaration that the premises in question were the property of the appellee; that the contractor failed to pay for the materials, which he was to provide, under his articles of agreement, and that by reason of such failure to pay, certain parties obtained liens, or had become entitled to liens, against his property; and these allegations were sufficient for the recovery of at least nominal damages. A demurrer does not go to the question of damages. (Hill v. Carr, 186 Ill. App. 515.) The appellee had the right to sue for recovery of nominal damages when no substantial damages had yet accrued. (Radloff v. Haase, 196 Ill. 365; Dent v. Davison, 52 Ill. 109.) And under the authority of Lesher v. United States Fidelity & Guaranty Co., 144 Ill. App. 632, which was affirmed in 239 Ill. 502, appellee, by virtue of section 35 of our Practice Act (J. & A. f 8572), could recover nominal damages under this declaration if the averment came within the indemnity clause of the bond, and afterwards, if he suffered substantial damages, could assign additional breaches of the bond to recover such additional damages.

We are therefore of the opinion that the declaration was not demurrable upon the ground urged.

But appellant also insists that the declaration was demurrable because, under the terms of the bond sued on, appellee was required, as a condition precedent to his right to recover, to deliver to appellant a written statement of the particular facts showing a default of the contractor, and the date thereof, by registered mail, at its office at Boston, Massachusetts, not later than ten days after appellee, his representative, architect or engineer became aware of the contractor’s default; that there is no proper allegation of the delivery of such statement; and that its omission renders the declaration fatally defective. The declaration, however, does aver that the appellee promptly, and within ten days after he, his representative, architect or engineer became aware thereof, notified the appellant by registered mail at its office at Boston, Massachusetts, in writing, of each and all the defaults of the contractor; and that written statements - of the particular facts showing each of said defaults, and the dates thereof respectively, and of the neglect to pay either or any of the parties for the materials and supplies ordered and purchased by the contractor for the construction of the improvements mentioned in the contract, of which the appellant became aware as aforesaid, prior to June 8,1914, and that the appellant accepted and acted upon such notices so given to it, and that by its letter of the date mentioned notified the appellee that there was no liability resting upon it, by reason of the bond in question, and that the appellant would not entertain any claim thereunder.

We are of the opinion that these allegations in the declaration, though general in their terms, are of sufficient definiteness to meet the requirements of the terms of the bond relative to notices of defaults by the contractor. And the allegations are to the effect that the appellant accepted and acted on said notices, and in and by its letter of June 8, 1914, notified appellee that it denied any liability whatever under the bond in question, and would not entertain any claim thereunder. A general statement in a declaration of the performance of precedent conditions is sufficient, at least as against a general demurrer. In the case of Colonial Mut. Fire Ins. Co. v. Ellinger, 112 Ill. App. 302, the rule and practice in this regard is referred to. The court says: “It will be seen from the statement of facts that appellee avers generally the performance of all the conditions precedent, and that the loss did not happen by reason of any of the conditions provided against in said policy. This is the usual and accepted form.” To the same effect is Aetna Ins. Co. v. Phelps, 27 Ill. 71, and Continental Life Ins. Co. v. Rogers, 119 Ill. 486.

The averments in the declaration that notices were sent prior to June 8, 1914, which is alleged to be the date of appellant’s letter denying liability, does not justify the inference, which appellant seeks to draw therefrom, that the sending of the notice was not prior to May 26, 1914, which was the date of the commencement of the suit. It is apparent, at any rate, that it does not affirmatively appear in the declaration that the notices required were all sent after the commencement of the suit. To make a declaration demurrable on the ground suggested it should show on its face that the condition precedent was not complied with (American Exch. Nat. Bank of Chicago v. Seaverns, 121 Ill. App. 480), and unless it appears affirmatively on that face of the declaration that the suit was prematurely brought, because of noncompliance with the prerequisite condition, the question of the premature bringing of the suit can be properly raised only by a plea in abatement. (New Home Life Ass’n of Illinois v. Hagler, 23 Ill. App. 457; Upton v. Swedish American Hospital, 157 Ill. App. 126.)

And it is well settled that the denial of all liability under the bond by appellant as alleged in the declaration waives the necessity of any proof of the notice of default required by the bond as a condition precedent. (Lohr Bottling Co. v. Ferguson, 223 Ill. 88; Hansell-Elcock Co. v. Frankfort Marine Accident & Plate Glass Ins. Co., 177 Ill. App. 500; American Home Circle v. Eggers, 137 Ill. App. 595; Phenix Ins. Co. v. Belt Ry. Co., 182 Ill. 33; Aetna Ins. Co. v. Jacobson, 105 Ill. App. 283; Erie Fire Ins. Co. v. Hill, 99 Ill. App. 178; Northern Assur. Co. v. Chicago Mut. B. & L. Ass’n, 98 Ill. App. 152; American Cent. Ins. Co. v. J. B. Henniger & Co., 87 Ill. App. 440; Williamsburg City Fire Ins. Co. v. Cary, 83 Ill. 453.)

The appellant insists that the facts alleged in the declaration show that the property against which the el aims for liens were filed, and which was involved by the mechanics’ lien suits pending, was not the property of the appellee, but of Peter J. Muldoon, Catholic Bishop of Rockford, and that therefore it is evident that no loss or damage could result to appellee by the subjecting of property, which was not his own, to the alleged liens. It may be said concerning this contention that the declaration avers that the premises in question against which the liens involved were filed and prosecuted is the property of the appellee. While it also contains averments which show that the legal title was vested in Peter J. Muldoon, as Catholic Bishop of Rockford, there is no inconsistency in these averments. The inference properly to be drawn from the averments is that the title which is vested in Peter J. Muldoon, as Catholic Bishop of Rockford, is held' by bim in trust, and that the equitable ownership, or right to enjoy the same, is presumable in the appellee..

The right to use and enjoy the premises for life, or for a term of years, would be a sufficient property right to constitute ownership for the purposes of this controversy. And in these rights of property and ownership, though limited in their character, appellee would have suffered a loss by the enforcement of the mechanics’ lien claims. The holder of any interest in property may legally' indemnify himself by contract against damages he may suffer by its loss, and it is not necessary that he should hold the legal title. Home Ins. Co. of New York v. Mendenhall, 164 Ill. 458. The demurrer admits the averment in the declaration that the premises in question were the property of appellee, and, as has been stated, this averment is not inconsistent with the averment of legal title in the Bishop of Rockford. Moreover, appellant was not in position to avoid its obligation by denying that appellee was the owner of the premises, it having contracted with him for indemnity and received a valuable consideration therefor,.on the basis of his ownership, and in legal effect had obligated itself to pay indemnity on that basis.

None of the grounds upon which the appellant based its demurrer was tenable; and the court therefore properly overruled it; and the .appellant having failed and refused to plead any matter of defense to the declaration, the judgment was rightfully rendered against it; and this judgment adjudicates the question of the appellant’s liability to the appellee, and that the appellee was entitled under it to recover at least nominal damages.

The sustaining of the demurrer to appellant’s third, fourth and fifth pleas to the additional assignments of the breaches of the indemnity conditions of the bond was also proper. The third and fourth pleas both allege that the appellee has no right to recover from the appellant, because the damages alleged in the additional assignments of breaches of the contract of the bond did not accrue within six months after the date of the completion of the buildings. This is a mere conclusion, and no facts are alleged in the plea' upon which an issue could have been formed to try.

It is an elementary rule of pleading that “every plea should be so pleaded as to be capable of trial, and must consist of matter of fact, the existence of which may be tried by a jury on an issjie, or the sufficiency of which as a defense may be determined by the court upon demurrer, or matter of record which is triable by the record itself.” (First Chitty’s Pleadings, 7th Am. Ed. 573.) The averments constituting the assignment of additional breaches of the bond themselves show that the substantial damages accrued to appellee more than six months after the date fixed in the contract for the completion of the work; but other averments also show that the delay was caused because of the time necessarily required in the orderly course of the legal contest over the question of the right of the lienholders to an enforcement of their liens. The plea, therefore, alleges no new or different facts, but merely raised a question of law, namely, whether the limitation fixed in the bond relative to the accruing damages was not waived, or rendered inoperative because the litigation was required, under the terms of the bond to ascertain the amount and validity of the lien claims, and this question should therefore properly have been raised by demurrer. Inasmuch as the plea merely raised a question of law, and not of fact, it was demurrable. (Clay Fire & Marine Ins. Co. v. Wusterhausen, 75 Ill. 285.)

The fifth plea raised the question of property in appellee, and denied liability because the premises in question were not the property of appellee, but the property of the Catholic Bishop of Bockford. This question had already been adjudicated by the court in the case by overruling appellant’s demurrer to the original declaration, and the rendition of the judgment on the declaration. The demurrer to this plea was therefore properly sustained.

The court did not err in denying appellant’s motion for a peremptory instruction to direct a verdict for appellant, on the additional assignment of breaches of the conditions of the bond. In this motion appellant attempted to raise the same question which it had raised by its fourth and fifth pleas, namely, that the damages claimed by appellant did not accrue to him within six months after the date of the completion of the buildings. It is true that there is a clause in the bond which provides that no recovery shall be had for damages which accrue after the lapse of six months from the date specified in the contract for the completion of the work; but there is another clause in the bond which requires that the appellee should at all times preserve and exercise all rights provided for his protection by the laws relating to liens of the State wherein said contract was to be performed. One of the rights which appellee was bound, therefore, to enforce was the right to have the question judicially determined whether or not the parties claiming liens were entitled thereto. This is" what the appellee did by contesting, in the regular legal form and manner, the enforcement of the liens claimed; and it is evident from the decree which adjudicated the rights of the lienholders, and the liability of the premises therefor, that the defense made by the appellee to the suits for the enforcement of the liens consumed the time which elapsed between the date of the filing of the lien suits (which was before the expiration of the date of completion) and the time of final adjudication of the liability, and the extent of the liability of the appellee, and the premises involved. Inasmuch as, by the terms of the bond, the appellant had bound the appellee to enforce his rights of defense to the claims made, and that such defense could not be made within the time fixed in the contract, the appellant is legally presumed to have waived the limitation, and the limitation therefore became inoperative. (Stout v. City Fire Ins. Co. of New Haven, 12 Iowa 371; Longhurst v. Star Ins. Co., 19 Iowa 364; Ausplund v. Aetna Indemnity Co., 47 Ore. 10, 81 Pac. 577.)

But appellant claims that the peremptory instruction should have been given because the evidence shows that appellee failed to perform and comply with the condition of the bond referred to requiring appellee to exercise and preserve at all times all rights provided for his protection by the laws of this State relating to liens, in that he failed to require the contractor, Underwood, under the provisions of the Mechanics’ Liens Act to give him a statement in writing, verified by affidavit, of the names of all of the parties furnishing the materials and labor; and of the amounts due or to become due to each; whereby appellant could have avoided liability under the Mechanics’ Liens Law. If appellant was entitled to defend against its liability upon the ground mentioned, it was necessary that such defense should have been pleaded specially; and, moreover, it should have been pleaded to the original declaration. The question of appellant’s liability had already been adjudicated by the judgment on the declaration originally filed, and it could not reopen the question of liability in the matter of damages resulting from alleged additional breaches; and could not reopen the question of its legal liability on the bond in this motion to direct a verdict.

The record in the case does not disclose any error, and the judgment is affirmed.

Judgment affirmed.