Volume 102 — Illinois Appellate Court Reports

<p>1. Contracts—For Making Public Improvements to be Let to the Lowest Bidder.—All contracts for the making of any public improvement, when the expense exceeds $500, must be let to the lowest responsible bidder.</p> <p>2. Local Improvements— Within the Meaning of the Statute.—A local improvement, within the meaning of the statute, is a public improvement which, by reason of its being confined to a locality enhances the value of adjacent property, as distinguished from benefits diffused by it throughout the municipality.</p> <p>3. ' Municipal Government—Letting of Contracts for Public Improvements.—As a general rule of public policy, the letting of contracts for public improvements to the lowest responsible bidder, after advertising for bids, will best subserve public economy. In construing a statute, courts are to look to the intention of the legislature.</p> <p>4. Statutes—Repeals by Implication Not Favored.—Repeals by implication are not favored, and a statute relating exclusively to local improvements does not repeal by implication a provision in a former statute, including improvements which are not local.</p>

<p>1. Civil Service Commission—No Presumption to be indulged in Pavor of its Jurisdiction.—In the case of a subordinate tribunal of limited jurisdiction created by statute, such as the civil service commission, jurisdiction must affirmatively appear on the face of its proceedings, and no presumption will be indulged in favor of it.</p> <p>2. Same—No Jurisdiction to Investigate Charges Against Members of the Board of Local Improvements.—The court is inclined to the opinion that the civil service commission has no jurisdiction to investigate charges against the board of local improvements as such, or against any member of such board.</p> <p>3. Same—Power of Removal of Officers Not in the Classified Service. —The commissioner of public works is the president of the board and the head of a department of the city government, not in the classified service, and on charges against such board or the members of the same, the civil service commission has no jurisdiction to investigate his conduct as such commissioner.</p> <p>4. Same—W7io May Prefer Charges Against a Subordinate Officer or Employe.—A citizen may prefer charges against a subordinate officer or employe, in any office or department of the city government, and is not excluded from making his complaint to the appointing officer and producing his proofs before him, and such officer, if he deems there are sufficient grounds for the removal of the person complained of, may notify the civil service commission of the same.</p> <p>5. Same—Specifications of Alleged, Causes to be Formulated.—Specification of the alleged causes for the removal of an officer or employe under the civil service act, should be formulated with such reasonable detail and precision as will inform the people and theincumbent of what dereliction is urged against him.</p> <p>6. Ordinances—Defined as the Law of the Inhabitants of the Municipality.—When an incorporated town or city has been invested by the legislature with power to pass an ordinance for the government or welfare of the municipality, an ordinance enacted by the legislative branch of the municipality in pursuance of such power, it can not be regarded otherwise than as a law of and within the municipality.</p>

<p>Interpleader.—Appeal from the Circuit Court of Cook County; the Hon. Richard Clifford, Judge, presiding.</p>

<p>1. Contracts—Effect of a Notice of Intention Not to Comply with Terms of.—Where a contracting party gives notice of his intention not tocomply with the obligation of the contract, the other contracting party may accept such notice as an anticipatory breach, and sue for damages without waiting until the time for the completion and fulfillment of such contract, by its terms; but in order to enable him to sue on such an anticipatory breach, he must accept it as such and consider the contract at an end.</p> <p>2. Master and Servant—Obligation of the Servant to Obey all Reasonable Commands of the Master.—The obligation of the servant to obey all lawful and reasonable commands of the master, is implied from the contract of employment, and a refusal or neglect on his part to obey such a command, which in view of all the circumstances of the case amounts to insubordination, and is inconsistent with his duties to his master, is a sufficient ground for his discharge.</p> <p>3. Same—Disobedience of Reasonable Orders Will Defeat a Recovery of Salary.—A discharge for disobedience of a reasonable order will defeat a recovery of the salary for the unexpired term, and a voluntary refusal by the servant to perform his contract, is sufficient ground for his discharge.</p> <p>4. Same—Refusal of a Traveling Salesman to Return His Samples. —A refusal of a traveling salesman employed at a yearly salary to return samples belonging to his employer when requested, is, under the circumstances of this case, sufficient ground for his discharge and will defeat his recovery of his salary for the part of the year remaining after such refusal.</p>

<p>1. Contracts—Recovery Under, by Parties in Pari Delicto—Gaming Policies.—Under a contract of insurance made in express violation of law, the nature of which is known to both the insured and the insurer, no recovery can be had.</p> <p>3. Insurance—Recovery of Premiums Paid by Parties to Wager Policies.—Where a policy of insurance is void for the reason that it is expressly prohibited by the statute, and its illegality appears upon-the face of it and is known to the parties, there can be no recovery of the premiums paid upon it.</p> <p>3. Same—What is Not an Illegal Contract of.—The statute, (section 8 of the act of 1883, Laws 1888, p. 107, Sec. 8,) has no application to a foreign insurance company doing business in this State by comity, and under a general statute which does not require it to comply with the provisions of such statute, and a policy issued by such a company is not an illegal contract, if authorized by the law of the State where such company is incorporated.</p> <p>4. Corporations—Powers of, When Doing Business in Other States. —Where there is no statute prohibiting a corporation from doing business in a State other than that of its incorporation, it may make the law of the State of its incorporation applicable to contracts made by it; but where the laws of the State in which it is doing business prohibit such corporation from making certain kinds of contracts, it can only act in accordance with such law.</p> <p>5. Same—Effect of a License to do Business.—A statutory license authorizing a foreign corporation to do business within the State does not alter the charter of such corporation but merely gives it a legal right to do business pursuant to its constitution outside of the State by which it is chartered.</p> <p>6. Tontine Provisions—Of Insurance Policies, When to be Treated as Surplusage.—The fact that tontine provisions in a policy on life insurance are void because they contravene the statute, does not invalidate the policy as a whole.</p>

<p>Bill in the Nature of an Interpleader.—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding.</p>

<p>1. Garnishment— What is Necessary to Give a Justice of the Peace Jurisdiction.—In order to give a justice of the peace jurisdiction of the subject-matter in garnishee proceedings an affidavit is necessary showing the judgment on which such proceedings are based, the amount thereof, execution issued thereon and returned unsatisfied.</p> <p>2. Justice Courts—Jurisdiction Must Appear Affirmatively.—A justice’s court being one of subordinate and limited jurisdiction, created by statute, nothing can be presumed in favor of its jurisdiction. Such jurisdiction must appear affirmatively on the face of its proceedings.</p>

<p>Assumpsit, on a contract of sale. Appeal from the Circuit Court of • Cook County; the Hon. Edward P. Vail, Judge presiding.</p>

<p>1. Continuances— When Properly Refused.—A motion for a continuance based upon affidavits setting up the absence of a witness, but in which it does not appear that there are no other witnesses present by whom all the facts material to the issues could be shown; is properly overruled.</p> <p>2. Special Interrogatories— When to be Refused.—It the answer to a special interrogatory most favorable in form to the party offering it would not render such finding irreconcilable with a verdict for the opposite party it may be refused.</p> <p>8. Master and Servant—Duty of the Master in Providing Safe Appliances.—It is the duty of the master to exercise reasonable care in providing reasonably safe appliances for the use of the servant and in providing him a reasonably safe place in which to do his work.</p> <p>4. Same—Duty of the Master in Regard to the Safety of the Place Where His.Servant is Ordered to Work.—Where a servant is ordered to work upon a platform built by another, it is the duty of the master, as between himself and the servant, to see that such platform is securely and safely supported for the work required to be done.</p> <p>5. Fellow-Servants— Who Are, a Question of Fact.— It is a question of fact to be determined by the jury under proper instructions as to whether or not'the relation of fellow-servants exists in the case under consideration.</p>

<p>1. Construction of Contracts—Private Rights Prevail over the Rights of the Public in Doubtful Cases.—In the construction óf contracts the rights of the individual in mere private contracts should, as a general rule, prevail over the rights of the public in doubtful cases.</p> <p>2. Same— When Not to be Held Void.—Before a contract should be held void, as contrary to law or public policy, it should appear clearly so, and beyond reasonable controversy.</p> <p>3. Instructions—To be Considered as a Series.—It is well settled that the instructions in a given case must be considered as a series, and if, when so considered, they fully and fairly instruct the jury as to every material fact in controversy, they will be considered as sufficient.</p> <p>4. Interest—When Properly Allowable, Under the Statute, on Money Paid Out.—Interest is properly allowable on money paid out, under the statute. (R. S., Chap. 74, Sec. 2.)</p>

<p>Assumpsit, for attorney’s fees. Appeal from the Superior Court of Cook County; the Hon. George W. Patton, Judge presiding.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Murray F, Tuley, Judge presiding.</p>

<p>Foreclosure.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding.</p>

<p>1. Customs—When To Be Specially Pleaded.—A custom introduced as an affirmative defense or for the purpose of recoupment, must be specially pleaded.</p> <p>2. Same—Not To Be Set Up in Opposition to Positive Law.—A custom can not be set up in opposition to positive law.</p> <p>3. Pleading— What Is Admissible Under tie General Issue.—In an action for wages the defense of a good cause for discharge can be made without a special plea, and is admissible under the general issue.</p> <p>4. Foreign Laws—To Be Pleaded and Proved.—When a foreign law is relied upon, either for the recovery of a right or as a defense, such law must be pleaded and proved..</p> <p>5. Common Law—Does Not' Prohibit Labor pn Sunday. —The common law as adopted in this State does not prohibit the citizen from pursuing his ordinary labor on Sunday.</p> <p>6. Contracts—Contemplating Labor an Sim day, Valid.—A contract which contemplates labor on Sunday, not tending to disturb the peace and good order of society and not constituting a violation of the criminal code, is valid and enforcible.</p> <p>7. Same—Made with Reference to Customs.—All contracts are presumed to be made with reference to existing customs, unless such customs are excluded by the terms of the contract, and the parties will be held as intending that the business shall be conducted according to such customs.</p>

<p>Bill for an Injunction.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding.</p>

<p>■ 1. Divorce—Allowances for Solicitor's Fees Are for the Benefit of the Wife.—in suits for divorce and separate maintenance a decree for a solicitors fee requiring the payment of it to be made to,the wife or-to her solicitor is erroneous. The statute is not for the benefit of the solicitor, but for the wife; and the order should have directed the payment to her.</p>

<p>Assumpsit, on a promissory note. Appeal from the 'Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge presiding.</p>

<p>1. Trials—By the Court Without a Jury.—Where a trial is by the court without a jury and the judge errs as to the preponderance of the evidence, his finding will be reversed and judgment entered in this court.</p>

<p>1. Master and Servant — Ownership of Appliances, When Immaterial.—Where an employer of painters directed them to take a scaffold in his possession and proceed with their work upon a tall building, which they did, it is immaterial whether such employer had or did not have legal title to such scaffold.</p> <p>2. Same—Right of a Servant to Assume that Appliances are Reasonably Safe.—Where an employe, engaged in painting the outside of a tall building, is directed by his employer to take a certain scaffold and proceed with his work, he has the right to assume that the scaffold is reasonably safe for him to use in such work.</p> <p>8. Contributory Negligence—A Question of Fact for the Jury.— Whether an employe, injured in falling from a scaffold while engaged in painting the outside of a building, was guilty of contributory negligence, is a question for the determination of the jury.</p>

<p>1. Corporations—Salaries Illegally Voted to Directors.—Where a salary or compensation is voted to a director, the vote is illegal, if it is carried only by including the vote of the director who receives the salary or compensation.</p> <p>2. Same—Where the President Induces the Directors to Vote a Salary to Him.—Where the president, who is a chief stockholder in a corporation, induces the directors to vote a large salary to him, the corporation may defeat him in an action at law to recover it.</p> <p>8. Same—Power of the Directors to Vote Compensation to One of Their Number.—Directors can not vote a salary, much less a large bonus or compensation in addition to a salary to one of their number, as president, when he takes part in the proceedings, or his vote is essential to the adoption of the measure.</p> <p>4. Same—Salaries Illegally Paid to be Treated as a Fund oiet of Which a Dividend May Be Declared.—A salary illegally paid to a director or officer of a corporation is to be treated as in the nature of a fund out of which a dividend may be declared.</p>

<p>Action on the Case, for a libel.—Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge presiding.</p>

<p>1; Licensees—Rights of, When Entering upon Premises by Permission of the Owner.—A mere naked license or permission to enter premises of another will not create, in favor of the licensee, or impose upon the person who grants the permission, any obligation to provide against dangers or accidents which may arise out of the existing condition of the premises.</p> <p>2. Same—Enter upon Premises Subject to All the Danger Attending the Act.—A person who enters upon premises of another as a mere licensee by permission of the owner does so subject to all the dangers attending his going and enjoys the license subject to its attending perils.</p> <p>3. Negligence—What is Contributory Negligence in a Licensee.— Where a person, who enters upon the premises of another with which he is not familiar and which are poorly lighted, as a mere licensee, falls down an elevator shaft, he is guilty of such contributory negligence as will preclude a recovery for injuries sustained by him.</p>

<p>Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding.</p>

<p>1. Pleadings—Declarations in Actions of Tort.—Where a declaration in an action of tort alleges as the cause of the action the joint negligence of two or more defendants, an error in the joinder can not be reached by demurrer or plea in abatement. The proper plea for those not guilty, is the general issue.</p> <p>2. TOUTS'—Are Joint or Several.—A tort may be treated as joint or several.</p> <p>8. Negligence—Riding on the Running-Board of a Street Car.— Whether or not it is negligence for a person to ride on the running-board of a street car, facing the inside and holding to the railing, is a question to be determined by the jury from the evidence in the case.</p>

<p>Trespass on the Case.—Death from alleged negligence. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding.</p>

<p>1. Depositions—When Opened by the Clerk Without an Order of Court. —It is not a sufficient ground for striking a deposition from the files, that it has been improperly opened by the clerk without a special order of the court, where no harm has been done by such action.</p> <p>2. Same—Mere Irregularities No Ground for Suppression.—As depositions may be used by either party, and if suppressed may be retaken, objections to their form should be promptly made, and mere irregularities from which no harm results do not require that they be suppressed.</p> <p>3. Rules of Court—Can Not be Proved by the Affidavit of the Parties.—Rules of court must be proved by the record, and their non-existence by the testimony of the clerk of the court. The affidavit of counsel to the effect there was no general rule or order of court for the opening of depositions does not establish the non-existence of such rule or order.</p> <p>4. Practice—Motions to Suppress Depositions Must be Made in Apt Time.—A motion to suppress a deposition must be made in apt time.</p> <p>5. Appellate Court Practice—Matters upon Which a Reversal is Ashed Must be Shown by the Abstract.—The rules of the Appellate Court (first district) require that all matter upon which a reversal is asked must be shown by the abstract.</p> <p>6. Continuances—Where a Party Relies upon the Promise of a Witness to Attend.—If a party relies upon the promise of a witness to attend and fails to have a subpoena served upon him, he is not entitled as a matter of right to a continuance, if such witness does not appear.</p>

<p>■ 1. Eviction—Physical Expulsion Not Necessary. - A physical expulsion of a tenant is not necessary to constitute an eviction which will enable him to successfully defend against an action by the landlord for rent.</p> <p>2. Landlord and Tenant—TEMÍ Acts of Interference Are Necessary to Constitute an Eviction.— Such acts of interference with the possession of the tenant by the landlord as cleai'ly show an intention on his part to deprive the tenant of the enjoyment of the premises, so that he can no longer occupy them, will authorize an abandonment of the possession by the tenant.</p> <p>3. Same—Where a Constructive Eviction is Relied upon—Intention of the Landlord a Question of Fact.—Where a constructive eviction is claimed the intent of the landlord to evict must appear, and such intent is a question of fact for the determination of the jury.</p> <p>4. Same—Abandonment of the Premises Must Be Within a Reasonable Time.—In case of constructive eviction, the abandonment of the premises must be within a reasonable time after the acts complained of.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge presiding.</p>

<p>Bill for Rescission of a Contract of Sale for Fraud.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Contempt of Court.—Error to the Probate Court of Cook County; the Hon. John H. Batten, Judge, presiding.</p>

<p>Action to Recover Damages, caused by the vacation of a portion of an alley. Appeal from the Superior Court of Cook County.</p>

<p>1. Streets—Damages Caused by Changing the Grades.—In the case of the change of the grade of a street the measure of damages is the difference in the value of the property affected, before and after such change, taking into consideration the increased value of the whole improvement to the property itself.</p> <p>2. Damages—Diversion of Customers Not a Proper Element of, in Actions for Lowering the Grade of a Street.—Depreciation of rental and market values from the diversion of customers, caused by the mere elevation of a railroad track and the depression of a street under the subway, is not a proper element of damages in an action for lowering the grade of the street.</p> <p>3. Damnum Absque Injuria—What are Included and Classedas Such. —There are certain injuries which are necessarily incident to the ownership of property in towns and cities which directly impair the value of private property, for which the law affords no relief, such as the building of a jail, a police station or the erection and maintenance of a small-pox hospital, and are-classed as damnum absque injuria.</p> <p>4. Same—Damages Resulting from Lowering the Grade of Streets Not Classed as Such.—There is a marked difference in the use by a city of its property in changing the grades of streets, and if, in so doing, adjacent property is injured, such injury is not to be classed as damnum absque injuria, as may grow out of the proper use of its police powers.</p> <p>5. Defenses— What Is a Matter of Defense in Actions for Damages Resulting from the Lowering of the Grade of a. Street.—In actions -to recover damages alleged to have been occasioned by lowering the grade of a street, the fact that the property has been benefited by the entire improvement in other respects to such an extent as to compensate the owner for the damage caused by lowering'such street is a matter of defenseto the action.</p>

<p>1. Damages—Measure of, for Breach of Warranty of a Filtering Plant.—There is no reason why, for a breach of warranty of a filtering plant, the plaintiff may not recover as damages all the money paid for such plant and all loss otherwise suffered in consequence of the failure of the plant to do the work as warranted.</p> <p>2. Construction of Contracts—Duty of the Court. —A court in construing a contract will place itself in the shoes of the contracting parties that it may view the subject-matter of the agreement in the light the parties viewed it and thus understand what was intended to be accomplished by it.</p> <p>3. Warranty— What a General Warranty Does Not Cover.—A general warranty does not cover defects obvious to the senses and known to him to whom the warranty is made.</p>

<p>1. Railroads—Shippers Traveling in Charge of Cattle on a Drover's Pass.—A person traveling on a railroad train in charge of cattle on a drover’s pass, is a passenger for hire, the consideration for his passage being the service he renders in taking care of the cattle, and he is entitled to the same degree of protection and care as are other passengers for hire.</p> <p>3. Same—Degree of Care of Passengers for Hire.—Ordinarily, carriers of passengers, while not insurers of absolutely safe carriage, are held to the exercise of the highest degree of care, skill and diligence practically consistent with the efficient use of the mode of transportation adopted.</p> <p>3. Same—Liability When Operating Trains on Other Roads.— Where one railroad company is operating its trains upon the track of another by an arrangement between them, both companies are equally liable for the negligent' acts of their employes.</p> <p>4. Passengers—Upon Railroads, Who Are.—A person who travels upon a freight train, with the consent of the railroad company, in charge of freight carried by such company for hire, is a passenger,, and the company can not exempt itself from the exercise of care and diligence in conveying him, nor limit its liability for injuries, to gross negligence alone. It is responsible for any degree of negligence which is sufficient to cause the injury, whether such negligence is gross or ordinary.</p> <p>5. Practice—Instructions tobe Presented, in Apt Time.—It is within the reasonable discretion of the judge of a trial court to refuse instructions which are not offered in apt time, as required by the rules of his court.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge presiding.</p>

<p>Bill for a Writ of Ne Exeat.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding.</p>

<p>T. Promissory Notes—Who is Presumptively a (Guarantor.—A third person who places his name upon the back of a promissory note is presumed to do so as a guarantor, but notwithstanding such presumption he may show that he was, in fact, an accommodation indorser and a surety and that this was known to the payee.</p> <p>3. Trials Without a Jury—Finding of the Judge, When Conclusive. —When the trial is without a jury, tliefinding of the judge upon questions of fact will not be set aside unless they are clearly and manifestly against the preponderance of the evidence.</p>

Mandamus, to compel a village board to act upon the returns of an election and declare the result. Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding.

<p>1. Life Insurance—Valid Provisions Relating to Suicide of the Insured. —The court knows of no reason why it is not competent for a life insurance company to make and insert in its policies a provision “ that if the insured shall, whether sane or insane, die by his own hand, the policy shall be null and void and bind the beneficiary by such provision.</p> <p>3. Same—Self-Executing Provisions.—A provision in a policy of life insurance that if the insured shall die by his own hand, whether sane or insane, then the policy shall be null and void, is self-executing.</p>

<p>1. Instructions—The Purpose and Object of.—The object and purpose of instructions are to convey to the jury correct principles of law as applicable to the evidence laid before them, and nothing should be given them unless it will promote such object.</p>

<p>1. Stockholders—In Corporations Not Completely Organized Are Not to be Held as Partners.—The great weight of authority is, that where a supposed de jure is really but a de facto corporation, yet is doing business in good faith as a corporation, duly and completely organized, one who does business with and gives credit to it, as such, can not hold the stockholders in such corporation liable to him as partners.</p>

<p>1. Corporations—Right to Hold Real Estate Can Only Be Raised by the State.—If a corporation has power to hold real estate for any purpose, a deed to it passes the title of the grantor, and whether it has exceeded its powers in accepting the conveyance, is a question which can only be raised by the State.</p> <p>2. Lease—Powers and Rights of Assignees.—An assignee of a lease, in the absence of any restraint in the instrument, can re-assign to whomsoever he chooses and relieve himself of responsibility for future accruing rent.</p> <p>3. Trials—By the Court toithout a Jury, When Its Findings Will Not Be Set Aside.—When a trial is by the court without a jury, and the court sees and hears the witnesses while they are giving their testimony before it, its findings upon questions of fact will not be set aside on appeal, unless such findings are clearly and manifestly against the preponderance of the evidence.</p> <p>4. Landlord and Tenant—Assignment of a Lease, Contrary to Its Restrictions, Voidable Only.—The assignment of a lease by the lessee, contrary to a restriction against assignments, is not void, but voidable only, and the lessor may waive the condition; and although he may declare a forfeiture for a breach of covenant, he may, on the contrary j insist upon the lessee’s fulfilling each and every of the covenants, conditions and provisions of his lease.</p>

<p>1. Attachments—Affidavits and Final Proofs.—A party applying for an attachment must make oath to the existence of the facts upon which he asks for the writ, and upon the trial he must prove the existence of such facts; not merely that he or his agent had heard or seen certain things from which the reasonable inference is that the debtor had done or was about to do the acts referred to in his affidavit.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Cook- County; the Hon. Frank Baker, Judge presiding.</p>

<p>1. Presumptions—When No Propositions of Law Are ¡Submitted.— When no propositions of law are submitted to the court for its holdings, it will be presumed that the court decided correctly all questions of law arising in the case.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Marcus Kayanagh, Judge presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding.</p>

<p>Trespass on the Case., for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge presiding.</p>

<p>1, Parties—Trustees in Foreclosure Proceedings.—Where the complainant in a foreclosure proceeding is the holder and owner of the note secured, and is the same person named as trustee in the trust deed, and is known to the defendant as such, it is not necessary that he should be joined in the suit as trustee, also.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Ultra Vires—Where the Doctrine is Not Applicable.—A lumber company organized for the purchase and sale of lumber may legally become surety upon the bond for the performance of a building contract.</p> <p>3, Practice—Status of the Pleadings Where Actions Are Changed by Amendments.—The change of an action from assumpsit to debt does away with all the pleadings not applicable to the action of debt.</p> <p>3. Same—Where Proof of the Execution of a Bond Sued upon is Unnecessary.—Under the statute proof of the execution of a bond sued upon is unnecessary unless a plea denying its execution, verified by affidavit, is filed.</p>

<p>1, Foreign Corporations—Must File with the Secretary of State Copy of Charter Before Entitled to Maintain Actions at Law in This State.—Foreign corporations must file in the office of the Secretary of State a copy of their charter, and designate a person as representative, upon whom process may be served, and have and maintain a public office in this State, before they can maintain actions at law in this State.</p>

<p>Foreclosure.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding.</p>

<p>Trespass on tlie Case, for personal injuries. Appeal from the Superior Court of Coqk County; the Hon. Jonas Hutchinson, Judge presiding.</p>

<p>Bill to Enjoin the Collection, of a Judgment.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding.</p>

<p>1. Chancery Practice—The Findings Must Be Sufficient to Sustain the Decree.—Where, the decree rests solely on the findings in it, if such findings are insufficient, the decree must be reversed.</p> <p>2. Divorce—Single Act of Physical Violence, lnmffiicient.—In no instance is a single act of physical violence sufficient ground for'a divorce.</p> <p>3. Same—Solicitor’s Fees and Expenses to be Allowed to the Wife.—An allowance to meet expenses of the wife in a suit for divorce, including solicitor’s fees, should be to her and in her name and not in favor of her solicitor or in his name.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge presiding.</p>

<p>1. Practice—A Similiter May Be Added After Verdict.—The filing of a similiter is a matter of course and merely formal. It may be added even after verdict.</p> <p>2. Evidence—Proof that a Copy of an Instrument Only Is on File, No Evidence that the Original Is Not.—Proof that it is a copy only, of an instrument which is on file, is not competent proof that the original is not on file.</p> <p>3. Short Cause Calendar—Motions to Strike Causes from, to he Made in Apt Time.—A motion to strike a cause from the short cause calendar must be made in apt time, or the right to the motion will be lost.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge presiding.</p>

<p>1. Brokerage—For Sale of Information.—A broker is entitled to commission, as agreed upon, where he furnishes a contractor with information by which such contractor enters into a contract for the erection of buildings.</p> <p>3. Trials— Without a Jury, When Conclusive on Questions of Fact.— A trial by the court, without a jury, upon conflicting evidence, is entitled to same credit as the verdict of a jury, and is conclusive upon questions of fact.</p>

<p>1. Consideration—A Promise to do Wliat One is Already Bound to do.—A promise to do that which one is already legally bound to do does not form a consideration for another’s promise.</p>

<p>1. Lease—Right of Assignee to Distrain for Rent.—The assignment of a lease by the lessor, gives to the assignee the same right to distrain for rent that the lessor had previous to the assignment.</p> <p>2. Same—Sufficiency of an Assignment.—An assignment of a lease by the lessor of all his “ right, title and interest in and to ” the lease is ample and sufficient to pass all his interest, not only to the premises demised, but also to the rents accruing under it.</p> <p>3. Same—Assignment of a Sealed Lease by an Instrument Not Under Seal.—A lease under seal may be assigned by an instrument not under seal, and such an assignment is in all respects sufficient to pass title to the assignee and gives him the same rights, by action or otherwise, that the original lessor had prior to the assignment.</p> <p>4. Distress for Rent—Demand for Rent in Arrears Unnecessary.— A demand before distress is unnecessary for rent in arrears.</p>

<p>Bill for Relief.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding.</p>

<p>Petition for a Mechanic’s Lien.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding.</p>

<p>Assumpsit, on the common counts. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge'presiding.</p>

<p>1. Bills of Exception—Time for Filing May be Extended by the Court upon Stipulation of the Parties.—The time for filing a bill of exceptions may b.e extended by the court upon stipulation of the parties to that effect and the same maybe signed and filed nunc pro tune after the time originally fixed has .expired.</p> <p>2. Practice—Signing a Bill of Exceptions by Consent of the Parties After the Time Has Expired.—The parties, at a subsequent term and after the time limited for filing a bill of exceptions has expired, may by consent re-invest the court with jurisdiction to settle and sign the bill.</p> <p>3. Promissory Notes—A Party Who Places His Name on the Back of a Promissory Note May Show by Parol What Liability He Intended, to Assume.-—When a person other than the payee of a promissory note, places his name across the back of such note, he may show by parol what liability he intended to assume.</p> <p>4. Same— Extension of Time. When It Discharges a Guarantor.—An extension of time for the payment of a promissory note by agreement between the payee and the maker for a definite time and for a good consideration, without the consent of a guarantor and in such a manner as to bind the parties, discharges such guarantor.</p>

<p>1. Limitations—Absence from the State Deducted.—When a cause of action accrues against a person while he is absent from the state, such action may be commenced within the time limited by the statute after his return to the state.</p> <p>2. New Trials—Grounds Not Stated in the Motion Are Waived.—Ta a motion for a new trial, the grounds not stated in the motion before the trial court are waived, and can not be raised in the Appellate Court.</p> <p>3. Same —Newly Discovered Evidence Cumulative.—Newly discovered evidence which is merely cumulative is not ground for a new trial.</p>

<p>1. Witnesses—.May Refresh Their Memory from Memoranda.—A witness may refresh his memory from a memorandum of a transaction made by him the day after such transaction, if made while he is completing such transaction, or so directly thereafter as to be a part of the same.</p> <p>3. Harmless Error— Not Sufficient Cause for Reversal.—Where an error works no injury to an appellant, it can not be regarded as reversible error.</p> <p>3. Admissions—By an Employe, When Not Binding upon his Employer.—It is not within the ordinary duties of a teamster to make binding admissions as to the condition of the contents of a package of goods received by him for his employer.</p> <p>4. Verdicts— When to he Set Aside.—When a verdict does not satisfy the conscience of the trial judge, the party against whom it has been rendered is entitled to a new trial.</p> <p>5. Warehousemen—To Exercise Reasonable Care to Preserve Goods Placed in Their Keeping.—A warehouseman is bound to exercise reasonable care to preserve the goods placed in his charge, from being injured by contact with, or from being placed in the vicinity of other property.</p>

<p>1. Statute oe Limitations—Amended Counts, When Amenable to. —When the plaintiff in an action for personal injuries files an amended count to his declaration in which a different cause of action is, in reality, declared upon, if not filed within the time limited, such count is amenable to a plea of the statute of limitations.</p> <p>2. Pleading— What is Not a Different Cause of Action in an Amended Count.—In an action for negligence, when the statement of the cause of action is defective, an amended count, in which the defect in the original declaration is corrected, does not state a different cause of action and is not amenable to a plea of the statute of limitations.</p> <p>3. Same—Unnecessary to State that Co-employes Were Not Fellow-Servants.—In an action for personal injuries it is not necessary for the plaintiff, in his declaration, to show affirmatively, by averments, that the injury complained of was caused by the negligent acts of agents or servants of the defendant, who were not his fellow-servants.</p> <p>4. Respondeat Supeeioe—Does Not Apply to Injuries Resulting from the Negligent Acts of Fellow-Servants.—The maxim respondeat superior has no application to injuries resulting from the negligent acts of the fellow-servants of the plaintiff.</p>

<p>1. Appellate Court—Jurisdiction Where a Freehold is Involved.— When the plea of the general issue puts in issue the title of the plaintiff to real estate and the determination of the case involves a decision as to whether or not the plaintiff had title to such real estate, a freehold is involved and the Appellate Court is without jurisdiction.</p>

<p>Assumpsit, upon a written guaranty. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge presiding.</p>

<p>Assumpsit, for wages. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge presiding.</p>

<p>1. Master and Servant—Duty of the Master to Provide for the Safety of the Servant.—One of the duties which a master owes to his servant is to make such provision for his safety as will reasonably protect him against the dangers incident to his employment.</p> <p>2. Same—Duty to Give Notice of Latent Defects.—Where there are latent defects or hazards incident to an occupation, of which the master knows or ought to know, and which the servant, from ignorance or inexperience, is not capable of understanding and appreciating, it is the master’s duty to warn or inform him of them.</p> <p>8, Same—Bisks Assumed by the Servant.—The servant assumes such risks of his employment as are usually incident to it, and the extraordinary hazards of which he has notice, or which in the usual exercise of his faculties he ought to have noticed, but he does not assume the risk of dangers known to the master which can be avoided by him in the exercise of reasonable care.</p> <p>4. Same—What the Servant has the Right to Presume.—The servant has a right to presume that all proper attention will be given to his safety and that he will not be carelessly or needlessly exposed to risks not necessarily resulting from his occupation and preventable by ordinary care and precaution on the part of his employer.</p> <p>5. Same—What the Servant May Assume in Obeying Orders of the Master.—Abrakeman, when ordered by the conductor of his train, whom it is his duty to obey, to make a coupling, has the right to assume that the coupling may be safely made, unless the danger in making it is so apparent and imminent that a reasonably prudent man would have refused to make it.</p> <p>6. Same—Duty to Instruct Inexperienced Employes.—It is the duty of the master to instruct inexperienced employes as to the performance of their duty or to warn them of risks known to him and unknown to such employes.</p> <p>7. Instructions—Must be Presented in Apt Time.—Under the rule of the Superior Court of Cook County that “ all instructions must be presented to the court at the conclusion of the evidence,” an instruction presented nearly at the close of the address of the plaintiff’s attorney to the jury, is properly refused in this case.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding.</p>

<p>Trespass on tlie Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding.</p>

<p>Bill for an Injunction, to restrain gambling, pool selling, etc. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding.</p>

<p>1. Gas Factories—Duty of the Proprietors—Not Insurers.—The proprietors of a gas factory are not insurers of the safety of the consumers of their product. It is their duty to furnish reasonably good and sufficient materia], suitable for the purpose for which it is intended and used, and to put in place their conducting pipes in a good and workmanlike manner, and having fulfilled this duty they are not guilty of negligence.</p> <p>2. Res Ipsa Loquitur— Where the Doctrine Does Not Apply.—The doctrine expressed by the words res ipsa loquitur has no application to a cracked or broken,gas pipe, though the escaping gas causes the injury to a sleeping occupant of a room, by asphyxiation.</p> <p>3. Evidence—Expert Testimony of Physicians.—In an action for damages resulting from an injury caused by escaping gas, it is error to permit a physician to testify that the condition in which he found the plaintiff might have been produced by asphyxiation.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding.</p>

<p>Assumpsit, for services in repairing a roof. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding.</p>

<p>Bill in Chancery, for a new trial. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding.</p>

<p>1. Chancery Practice—Findings of the Master, WhenConclusive.— The findings of the master, when approved by the chancellor, are con-elusive upon questions of fact unless they are manifestly and clearly against the weight of the evidence. See Hagemann v. Hagemann, 90 Ill. App. 251.</p>

<p>1. Variances—Must be Specifically Pointed Out in the Court Below. —The objection of variance between the pleadings and proofs, not pointed out in the court below, can not be raised in the Appellate Court.</p> <p>2. Estoppel—By Recitals in an Appeal Bond.—A party is bound by, and can not contradict the recitals in an appeal bond executed by him.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding.</p>

<p>1. Short Cause Calendar—Motions to Strike Carnes from, to be Made in Apt Time.—It is the duty of an applicant to make his motion to sti'ike a cause from the short cause calendar at the first opportunity.</p>

<p>Bill to Foreclose a Trust Deed.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding.</p>

<p>Trespass on the Case, for personal injuries.- Appeal from the Circuit Court of Cook County; the Hon. Abba N. Waterman, Judge presiding.</p>

<p>1. Attorneys—Failing to Pay Over Moneys Collected by Them— Jurisdiction of Courts of Equity.—The law courts afford several efficient remedies against attorneys who fail to pay over moneys collected for their clients. A court of equity will not take jurisdiction in such a case.</p>

<p>1. Mechanic’s Liens—Materials Furnished for Constructing Public Improvements—Notice to Officers.—Any person furnishing material or labor to a contractor for public improvements is entitled to a lien on the money, bonds or warrants due or to become due such contractor for such improvement; provided, such person shall, before any payment or delivery of such bonds or warrants are made to such contractor, notify the officials of such municipality, whose duty it is to pay such contractor, of his claim in writing.</p> <p>2. Notice—To Officers of the Municipality—Duty to Withhold Sufficient Funds to Satisfy Such Liens.—It is the duty of the officials of such municipality when so notified, to withhold a sufficient amount to pay such claim until it is admitted, or by law established, and thereupon to pay the amount to such person, and such payment is to be a credit on the contract price to be paid to such contractor.</p>

<p>Bill for Divorce.—Error to the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding.</p>

<p>1. Jurisdiction—Of the Courts of This State to Enforce the Liability of Stockholders of Insolvent Foreign Corporations.—In this State, no action will lie against a stockholder of an insolvent foreign corporation to enforce the payment of his liability for unpaid subscriptions.</p> <p>3. Stockholders—Of Foreign Corporations—Jurisdiction of the Courts of Illinois to Deter ¡nine Their Liability.—The courts of Illinois have no jurisdiction of a creditor’s bill to determine the liability of resident stockholders of an insolvent corporation of another state.</p> <p>3. Same—Liability Does Not Exist at Common Law.—The individual liability of stockholders of corporations to creditors is always a creature of statutory enactment. It does not exist at common law.</p> <p>4. Same—Formal Subscription Unnecessary to Make One a Stockholder.—As between the corporation itself and the alleged stockholder no formal contract of subscription is necessary. The issuance of stock to and acceptance by a person makes him a stockholder without any formal Subscription or contract to receive and pay for the same, and a contract to pay for it will be implied under such circumstances.</p> <p>5. Same—When the Liability is Transferred by Assignment of the Stock.—When the stock is transferred in good faith, to a responsible person, and not for the purpose of escaping liability, such transfer has the effect to release the liability of the person making the assignment and to transfer it to the assignee.</p>

<p>Indictment, for living in an open state of adultery. Error to the Criminal Court of Cook County; the Hon. Abner Smith, Judge presiding,</p>

<p>Assumpsit, on a policy of life insurance. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding.</p>

<p>Assumpsit..—Error to the Superior Court of Cook County; the Hon. Theodore Brent ano. Judge presiding.</p>

<p>Action for the Recovery of Rent,.—Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding.</p>

<p>Trespass on the Case, for slander. Error to the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge presiding.</p>

<p>1. Evidence—Questions Calling for the Conclusions of a Witness Bather than Facts, Are Improper.—In an action of replevin, questions as to who was the owner of the property in question call for the conclusion of the witness and not facts, and are improper.</p> <p>2. Instructions—As to Disregarding Testimony of a Witness Who Has Testified Falsely.—It is not proper to instruct a jury to disregard the whole of the testimony of a witness because they believe he has testified falsely as to a material matter in issue.</p>

<p>1. Appellate Court Practice—Where the Justices Are Unable to Agree.—Where the justices of the Appellate Court are unable to agree upon the questions involved, the judgment of the court below will be affirmed.</p>

<p>Bill for an Accounting'.—Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge presiding.</p>

<p>Assumpsit, on a promissory note. Error to the Circuit Court of Cook County; the Hon. Robert W. Hilscher, Judge presiding.</p>

<p>1. Amendments—After the Lapse of the Term.—Notice.—A court is without power to amend its judgments after the lapse of the term at which such judgments were entered, except upon notice to the parties.</p> <p>2. Same— Upon the Recollection of the -Judge or Affidavit of a Party. ■—A judgment can not be amended after the lapse of the term at which it was entered, upon the mere recollection of the judge before whom it was obtained or the affidavit of a party to such judgment.</p> <p>8. Construction of Statutes—Consolidation of Demands Before Justices of the Peace.—The statute (Hurd's R. S. 1901, p. 1116, Sec. 18,) requiring, in suits before justices of the peace, the consolidation of all demands which are of a nature to be consolidated and which do not exceed $200 when consolidated into one action or defense, has no application to distinct claims the aggregate of which, when consolidated, exceeds that amount.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge presiding.</p>

<p>1. Jurisdiction—Of the Court to Hear Motions at Subsequent Terms. —A motion to vacate a judgment and set aside a default made at a term of court subsequent to the term at which such default was entered and judgment rendered, is made at a time when the court has lost its jurisdiction.</p> <p>2. Presumptions—Ire the Absence of a Bill of Exceptions.—In the absence of a bill of exceptions purporting to contain all the evidence, this court will presume that the judgment entered was justified by the evidence presented to the trial court.</p> <p>3. Contracts—Liquidated Damages.—Where from the nature of the contract the damages can not be calculated with any degree of certainty, the stipulated sum will usually be held to be liquidated damages, where they are so denominated in the instrument itself.</p>

<p>Assumpsit, on a contract of subscription. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding.</p>

<p>Foreclosure.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding.</p>

<p>1. Decebes—When a Court of Chancery Will Not Hesitate to Set Aside a Decree.— A court of chancery will not hesitate to set aside a decree improperly obtained, and to which a party has no right, merely because the party against whose property such decree runs is indebted to the person in whose favor the decree is rendered.</p> <p>2. Mechanics’ Liens— Under the Law of 1895.—The mechanics’ lien law of 1895 provided that no lien be created under it, if the time stipulated for payment is beyond one year from the time provided for the completion of the work.</p> <p>3. Same—When the Lien Attaches Under a Building Contract.— Whether a mechanic’s lien attaches under a building contract depends at the outset upon the nature of the contract and not upon that which is done under it. A contractor must show that his contract brings him within the terms of the law or he can not have a lien.</p> <p>4 Appellate Court Practice—Assignment of Errors. —An assumed interest by an appellee in maintaining the decree appealed from gives him no right to assign error for dismissing his cross-bill from which dismissal no one has appealed.</p>

<p>1. Evidence—As to Conversations with a Deceased Agent of the Adverse Party.—la. all suits or proceedings, a party who has contracted with an agent of the adverse party, and such agent having since died, is not a competent witness to any admission or conversation between himself and such agent, unless such admission or conversation with the said deceased agent was had or made in the presence of surviving agent or agents of such adverse party.</p> <p>3. Same—Under a Quantum Meruit.—The inquiry under a quantum meruit is not what benefits, immediate or remote, have been derived from services rendered, but what is the value of such services.</p> <p>3. Same—Questions Touching Payment—Where counsel for the defendant asked the plaintiff, “ Have you ever received anything?” to which an objection was interposed, held, that the question should have been answered, as the object of it was, obviously, not to prove payment, but to bring out the facts, as the plaintiff was claiming he had not been fully paid.</p>

<p>1. Usury—A Corrupt Agreement Necessary.—To constitute usury within the prohibition of the law there must be intention knowingly to contract for or take usurious interest; for if neither party take it,'but act bona fide and innocently, the law will not infer a corrupt agreement.</p> <p>2. Same—Where the Contract upon its Face Imports Usury.—Where the contract upon its face imports usury there is no room for presumption, for the intent is apparent; res ipsa loquitur.</p> <p>8. Same—By Building and. Loan Associations.—A loan made by a building and loan association at more than the legal rate of interest is usurious if made at a premium not fixed at competitive bidding.</p> <p>4. Same—Power of Courts of Equity to Purge Building and Loan Contracts of Usury.—The circumstances attending the contract of a building and loan association, as well as the rights and relation of the parties, may be properly considered by a court of equity, and when settlements made by the parties with full knowledge of their rights, contracts may be purged of their usury.</p>

<p>1. Practice of Medicine—Powers of the Board of Health to Determine Whether a Medical College is in “ Good Standing."—The State Board of Health is possessed of discretionary power to determine whether a medical college is in good standing, within the meaning of the statute (Laws, 1881, p. 225), and defined in its resolutions, and when it has determined that question in favor of an applicant for license to practice medicine it has exhausted its discretion and can not refuse him such license for arbitrary reasons of its own.</p> <p>2. Mandamus—Will Not Lie to Compel the Performance of Duties Which Necessarily Call for the Exercise of Judgment and Discretion.— The writ of mandamus will not lie to compel the performance of acts or duties which necessarily call for the exercise of judgment or discretion by an officer or body at whose hands such performance is required, unless it is made clearly to appear that there has been an abuse of discretion by the officer or body or such evasion of positive duty as amounts to a virtual refusal to perform the required duty.</p>

<p>1. Evidence—Sufficiency of, to Support the Judgment—Appellate Court.—The sufficiency of the evidence to support the judgment is a proper subject for the consideration of the Appellate Court, and if found insufficient to sustain the action of the trial court it is its duty to reverse the judgment.</p> <p>2. Street Railway Companies—Ditty in Reference to Expected Accidents.—A street railway company is bound to operate its cars with reference to that which may be reasonably expected, but it is not obliged to be on guard against that which is not reasonably to be expected, and in case of an accident, as to whether or not it did its duty, is to be determined, in part, by that which it knew of the nature of the place of the accident and of the number of people, adults and children, making use of the street where such accident occurred.</p> <p>3. Contributory Negligence—Not to be Imputed to a Child Six Years of Age.—Contributory negligence can not be imputed to a boy six years of age. Such a child is chargeable only with such care and discretion as is reasonably to be expected of a child of his age.</p> <p>4 Impeachment op Witnesses—Not by His Intelligence or Lack of It.—A witness can not be impeached by his intelligence or for the lack of it.</p> <p>5. Instructions—Not Error to Refuse, When Covered by Others in the Case.—It is not error to refuse an instruction which is covered by others given in the same case.</p> <p>6. Damages— When $1,000 Is Not Excessive.—Where a boy of the ase of six years is injured in a railroad accident, in which he was struck by the front end of an electric car as it was coming to a stop, and pushed several feet, the shock and pain being very severe, a verdict for $1,000 is not excessive.</p>

<p>1. Statutes—Application of Section l/f of the Act to Organize and Regulate the Business of Life Insurance,—Section fourteen of the act to regulate the business of life insurance, approved March 25, 1889 (Hurd’s R. S. 1055, Sec. 14), providing that life insurance companies which do business on the principle of mutual insurance, or the members of which are entitled to share in the surplus funds, may mak'e distribution of such surplus as they have accumulated, annually, or once in two, three, four or five years, as the directors may from time to time determine, has no application to life insurance companies which do business on the tontine savings fund plan.</p> <p>2. Tontine Insurance—Definition.—Tontine insurance is described as a system of insurance which, under various forms, is based upon the idea of a loan or investment for the benefit of a number of persons, the income, at the first, being divided among all, and the shares of members who die passing, not to their own legal representatives, but to increase the interest of the surviving members, until, at last, after the number of members has gradually diminished by successive deaths, the last survivor takes the whole income, or, if such be the terms agreed upon, the whole principal.</p>

<p>1. Sureties—Effect of a Discharge of the Principal in Bankruptcy. —When the principal in an obligation has been discharged in bankruptcy and a civil action is pending against him and his surety, such surety shall be entitled to have an exoneretur entered upon the records of the court in which such action is pending.</p>

<p>Petition for a Discharge, under the insolvent act. Error to the Circuit Court of Cook County: the Hon. Orrin N. Carter, Judge presiding.</p>

<p>Assumpsit, for goods, etc. Appeal from the Superior Court of Cook County; the Horn Farlin Q. Ball, Judge presiding.</p>

<p>1. Railroads—Duty Toward Trespassers.—A railroad owes no duty toward trespassers upon its grounds except not to wantonly or willfully inflict injury upon them.</p> <p>3. Recoveries—Under Allegations of Negligence.—Under an allegation of negligence a recovery may be had upon proof of gross negligence. But it does not follow that under an allegation of injury arising from negligence a recovery can be had by a trespasser.</p> <p>3. Negligence—When Gross, is But an Omission of Duty.—When there is no particular intention to injure, or a degree of willful and wanton recklessness which authorizes the presumption of an intention to injure generally, the act ceases to be merely negligent and becomes one of violence or fraud.</p> <p>4. Same—Degrees of Negligence.—There are degrees of negligence, as there are degrees of care; but the words slight negligence, ordinary negligence, and gross negligence, are each descriptive of an omission of duty, a neglect without intention to do harm.</p> <p>5. Master and Servant—Liability of the Master for Acts of the Servant Done Within the General Scope of Sis Employment.—The master is, in this State, responsible for acts of his servant done within the general scope of his employment while engaged in his master’s business with a view to the furtherance of such business, whether he acts willfully or wantonly; but the master is not liable for acts of his servant not within the scope of his employment.</p> <p>6. Same—Watchmen Employed to Guard Property.—The mere employment of a watchman to guard property and keep away trespassers does not involve an authority to shoot trespassers and such an authority can not be presumed. '</p> <p>7. Instructions—In Actions for Injuring Trespassers.—In an action for personal injuries to a trespasser upon the grounds of a railroad company, an instruction that the master is not responsible for the acts of the servant done outside of his business, and to accomplish some end personal to the servant himself, that the law does not imply any authority from the master to the servant to commit an assault upon a person who is not injuring or threatening to injure the master’s property and who is not interfering with the servant’s performance of his duty, and if they believe from the evidence that the plaintiff was peaceably leaving the property of the defendant, and was not threatening the defendant’s property, nor refusing to go promptly outside its right of way, nor interfering in any way with the performance by the watchman of his duties in the defendant’s railroad yard, and that under these circumstances the servant fired the shot that struck the plaintiff, for some purpose of his own, the plaintiff can not recover in this case, and their verdict should be for the defendant, is proper and should be given.</p>

<p>Bill for an Accounting.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding.</p>

<p>Error to the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding.</p>

<p>1. Costs—Witness Fees—Mileage and Per Diem Attendance.—A witness living in Chicago, subpoenaed in a case pending in the Circuit Court of Cook County, is not entitled to mileage for going and returning to and from his home each day during the time such case is on call.</p> <p>2. Same—Duty of the Clerk in Taxing Fees.—It is the duty of the clerk to tax only legal fees, and every intendment is in favor of the proper taxation, in the absence of proof to the contrary.</p> <p>3. Practice— When a Motion to Retax Costs May he Made.—A motion to retax costs may be made upon notice after the close of the term at which the judgment was entered or after appeal.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Livingston County; the Hon. John H. Moffett, Judge presiding.</p>

<p>1. Pleading—Requisites of Verification of Defendant’s Plea.—It is necessary that the affidavit verifying the defendant’s plea should deny the executions of the instruments sued upon, or should state that the plea of non-assumpsit is true in order to cast upon the plaintiff the burden of proof of the execution of the instruments sued upon.</p> <p>2. Same—Affidavit of Good Defense on the Merits.—An affidavit that the defendant has a good defense on the merits is not an affidavit that the plea of non-assumpsit is true.</p> <p>3. Corporations—Seal Does Not Prove Itself.-—The seal of a private corporation does not prove itself, but its authenticity must be established by evidence.</p> <p>4. Same—When Note is That of Agent and Not of Principal.—The words “ Prest. Mt. Carmel Lgt. & Water Co.,” following the signature of an officer of a corporation, are simply descriptive of the person, and the note is his individual note unless it is shown by the evidence that he acted for the corporation.</p> <p>5. Promissory Notes—Agreement for Payment in Property.—Where the provision of a promissory note is that at the date of the maturity of the note it may be paid by first mortgage bonds of the corporation at their par value, and no tender is made at or before maturity, it becomes payable in money, and the right to pay in bonds is forfeited.</p>