Volume 107 — Illinois Appellate Court Reports

<p>1. Evidence— Of Custom or Practice.— In offering evidence of a general practice or custom the inquiry should not be limited within the arbitrary lines of a mere political subdivision of the state.</p> <p>2. Same—Rule as to the Res Gestee.—No inflexible rule has been or can be formulated fixing the exact time within which a statement must be made to make it a part of the res gestee.</p> <p>3. Instructions—Meaning of the Doctrine Which Holds an Instruction Vicious, When it Attempts to Summarize the Facts or Elements in. a Case Essential to a Recovery, but Fails in Some Important Particular.—The doctrine which holds an instruction vicious, when it attempts to summarize the facts or elements in a case essential to a recovery, but fails in some important particular, does not apply to an instruction which merely fails to embody in it evidence tending to establish a distinct antagonistic theory. All the law requires is that an instruction, based upon some particular hypothesis warranted by the evidence, which undertakes to summarize the elements in the case essential to a recovery upon that theory, must not omit any matter essential to that theory.</p> <p>4. Master and Servant—A Risk Resulting from the Negligence of the Master, or from a Failure of the Master to Perform Some Duty, is Not an Assumed Risk.—A risk resulting from the negligence of the master, or from a failure of the master to perform some duty, is not an assumed risk on the part of the servant, nor is it a risk incidental to the employment.</p> <p>0. Mines and Mining—Compliance with the Statute Does Not Relieve from Common Laio Duties.—Compliance with the statute as to places of refuge, does not relieve the owner and operator of a mine from all his common law duties with reference to safety in its entries. The purpose of the statute was not to abrogate the common law as to such duties but to impose an additional one.</p> <p>6. Special Interrogatories—Not Calling for Any Answer as to a Controlling Ultimate Fact, Properly Refused.—A special interrogatory which does not pertain to any issue in the case, nor call for an answer as to any controlling ultimate fact involved, is properly refused.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Wabash County; the Hon. Enoch E. Newlin, Judge presiding. Heard in this court at the August term, 1903, Suit to recover damages by appellee, widow and administratrix of Wm. M. Drake, who was killed on the evening of January 24, 1902, by appellant’s locomotive, at Mt. Carmel station. There are five counts in the declaration.

<p>1. Practice— Where Court Should Ref use an Instruction to Find for the Defendant.—Where there is any evidence in the case tending to sustain the cause of action, the court should refuse to instruct the jury to find for the defendant.</p> <p>2. Instructions—Duty of One Receiving Injury as to Care Bestowed in Treatment.—An instruction to the jury that it was the duty of the plaintiff to employ such doctor or doctors for the treatment of his injuries as ordinary prudence in his situation at the time of the injury and thereafter required; and to use ordinary judgment and care in doing so, and to select only such doctor as was of at least ordinary skill and care in his profession; but the law does not make him an insurer in such case that the doctor will be guilty of no negligence, error in judgment or want of care, and where such errors or mistakes occur in the treatment, the injured party using ordinary care, the injury resulting from such mistakes is properly regarded as part of the immediate and direct damages resulting from the original injury, states a correct principle of law.</p> <p>3. Due Care—A Question of Fact for the Jury.—Whether a party has acted as a reasonably careful prudent person would have acted under the circumstances, is a question of fact for the jury.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Jackson County; the Hon. Alonzo K, Vickers, Judge presiding. Heard in this court at the August term, 1903.

<p>1. Practice—Granting Extension of Time for Filing Appeal Bond After Expiration of Time Originally Allowed.—The trial court can not grant an extension of time for filing an appeal bond and bill of exceptions after the expiration of time originally allowed, except under some circumstances during term time, and while in open session, where such order is made to appear upon the record of the proceedings of the court and the record states the reasons to justify the making of the same.</p>

Debt, to recover a penalty for violation of a city ordinance. Appeal from the Criminal Court of Cook County; the Hon. Jesse Holdoii, Judge presiding. Heard in this court at the March term, 1902. This suit was brought by appellee in a justice court to recover a penalty prescribed for the violation of a city ordinance by the emission of dense smoke within the corporate limits from a locomotive engine owned by appellant.

Trespass on the Case, for personal injuries. Appeal from the' Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in this court at the March term, 1902.

Assumpsit, for goods sold and delivered. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding. Heard in this court at the March term, 1903.

<p>1. Res Judicata—Judgment of Branch Appellate Court is Binding upon the Appellate Court.—Where a case has been heard and determined in the Branch Appellate Court, its judgment is binding upon this court.</p>

<p>Trespass on the Case, on promises. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. RussellP. Goodwin, Judge presiding. Heard in this court at the March term, 1902.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heard in this court at the March term, 1903.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. George W. Patton, Judge presiding. Heard in this court at the March term, 1902.

<p>Bill to Cancel a Note and Judgment, etc.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Error to the Circuit Court of Cook County; the Hon. John C. Garver, Judge presiding. Heard in this court at the March term, 1902.</p>

Trespass on the Case, for personal' injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the March term, 1902.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Bussell P. Goodwin, Judge presiding. Heard in this court at the March term, 1902.

<p>Bill to Foreclose a Trust Deed.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge presiding. Heard in this court at the March term, 1902.</p> <p>This action was brought against appellant to recover damages for negligently causing the death of William McGrath, who, at the time, was employed by the Weaver Coal Company as a teamster. The yards of this company extend along the south line of Fortieth street, in the city of Chicago, a distance of two blocks, from Wentworth avenue on the east to Hopkins street on the west. Through the center of this yard a public highway, known as Atlantic street, runs north and south. In the yard are many railway tracks, lying substantially east and west, on which appellant was accustomed to place loaded coal cars, and from which it removed the same when they were unloaded. The main barn of the yard stands west of Atlantic street. On the day of his death McGrath was directed to place his wagon beside a loaded car that stood on track Ho. 3 on the east side of Atlantic street in a northeasterly direction from the barn. He did so. It was then the noon hour. The deceased, intending to feed his three horse team where it stood, started to the barn for oats. As he crossed Atlantic street a switchman in the employ of appellant told him that they were going to do some switching and to look out for himself. There were then no cars on the street. Deceased went into the barn, and in a short time came out carrying the oats in three nose-bags. When he reached the street three detached loaded cars covered the entire street crossing. The switchman, who stood on the other side of the cars, was hidden from the view of McGrath. Deceased did not stop when he came to the obstruction, but Avalked along the south side of the cars until he came to the east end of the three, when he turned north across the track-close to the end of the east car. At that instant two loaded cars, which had been “ kicked ” by an engine, then two or three hundred feet to the west, crashed into the three standing cars, pushing them. from twenty to twenty-five feet, knocking McGrath down and running over him, thus inflicting the injuries which caused his death.</p> <p>. On the trial of the case in the court below a verdict was rendered in favor of appellees and against appellant for the sum of $5,000, upon which the court entered judgment, after overruling the motion for a new trial made by appellant. To reverse this judgment appellant appeals to this court, and among the various errors assigned argues that the. case should be reversed upon the folioAving grounds:</p> <p>First. That the record does not disclose any liability against the appellant.</p> <p>Second. That the deceased, McGrath, was himself guilty of contributory negligence.</p> <p>Third. That the court erred in its ruling upon the admission of a certain piece of evidence.</p> <p>Fourth. That the verdict and judgment is vitiated by reason of certain conduct of a witness in appealing to the jury as they sat in the box, while the trial judge and the counsel were absent from the court room, to return a verdict in favor of the plaintiffs.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the March term, 1902. This is an action brought by appellee as administrator of the estate of Charles M. Campbell, deceased, against appellant, to recover damages for the death of said Campbell while he was in its employ.

<p>Bill for an Injunction.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in the Branch Appellate Court at the March terra, 1902.</p>

<p>1. Written Instruments—Merger of Prior Agreements.— All agreements prior to the execution of a written instrument, in relation to the same subject-matter, are merged in the written instrument.</p> <p>2. Leases— Seal Not Necessary.—A seal is not necessary to the validity of a lease. .</p> <p>3. Landlord and Tenant—Landlord Liable for Concealed Defects Not Revealed to Tenant.—Where there are concealed defects in the demised premises, attended with danger to a tenant, and which a careful examination would not discover, but which are known to the landlord, the latter is bound to reveal them, in order that the tenant may guard against them; and upon his failure to perform such duty he will become liable for whatever damages naturally result to the tenant therefrom.</p> <p>4. Same—Not the Duty of the Landlord to Disclose Apparent Defects —Caveat Emptor. —Noactive duty is imposed upon the landlord to disclose apparent defects which are equally within the knowledge of the tenant. The rule- of caveat emptor applies in such a case with full force.</p> <p>5. Same—Landlord ■Not Liable to Tenant for a Nuisance.—The landlord is not liable to the tenant for a nuisance existing on the premises at the time the lease was made.</p> <p>6. Same—Landlord Not Bound to Repair in the Absence of a Special Agreement.—The landlord is not bound to repair unless he has specially agreed to do so in the lease.</p>

<p>Trespass ©a the Case, on promises. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p> <p>The following correspondence having passed between the parties to this suit, there grew out of it and that done thereunder, this litigation.</p> <p>“ Chicago, July 25, 1895.</p> <p>Mr. Burdick, Pres.' First Eat’l Bank, Davenport, la.</p> <p>Dear Sir: Eeferring to conversation had with you a short time ago when in the city, in which conversation you asked us to have Isaac Rothschild re-open his account with your bank, saying that if he did so you would extend him at all times a credit of from $10,000 to $15,000, you said further that you did not want us to guarantee the account, but that you would like us to write you that if anything should happen to him or his business, that we would see that the First Rational Bank of Davenport, Iowa, did not lose anything. Row, while such event will never occur, we nevertheless, according to your wishes, state to you herewith that if you extend Isaac Rothschild a credit of from $10,000 to $15,000 we will see that your bank is fully and wholly protected under all circumstances. We will, on receipt of your reply, correspond with Isaac in regard to re-opening an account with you.</p> <p>With respect, we remain,</p> <p>Yours, etc.,</p> <p>E. Rothschild & Bros ,</p> <p>By A. M. Rothschild, Yice-Pres.”</p> <p>Confidential.</p> <p>“Chicago, July 30, 1895.</p> <p>Mr. A. Burdick, First Rat’l Bank, Davenport, Iowa.</p> <p>Dear Sir : I have written Isaac in reference to the conversation we had, and I told him to transfer his account to your bank. He may not have as much to deposit now as he will have later in the season, this being the dullest season of the year. In case he wants $5,000, which he likely needs now, let him have it, as I don’t want him to get it of the other bank so long as he is going to make the change. It is perfectly good. You need never fear.</p> <p>Yours very truly,</p> <p>A. M. Rothschild.”</p> <p>“Chicago, Sept. 11, 1895.</p> <p>A. Burdick, Esq., Pres. First Rat’l Bank, Davenport, la.</p> <p>Dear Sir : We have this day written to Mr. Isaac Rothschild to call on you for a discount of $3,000 on four months’ time. If you will kindly let him have this amount we will consider the credit granted under conditions of our former letter to you.</p> <p>Respectfully,</p> <p>E. Rothschild & Bros.”</p> <p>“Chicago, Sept. 19, 1896.</p> <p>Mr. A. Burdick, Pres. First Rat’l Bank. Davenport. Iowa.</p> <p>Dear Sir: We are in receipt of a letter which Isaac Rothschild sends us, asking him to pay the next note of §3,000 falling due on the 23d, in response to which we would, say that it is quite impossible for him to pay this just now, he having reduced his indebtedness a short time ago. Banks here are renewing their customers’ paper. While they are not making new loans, they are taking care of their present customers to this extent. I feel that at this time you should renew his paper for him, and hope you will kindly do so.</p> <p>Yours respectfully,</p> <p>A. M. Rothschild.”</p> <p>“ Feby. 17, 1897.</p> <p>Mess. E. Rothschild and A. M. Rothschild, Chicago, Ills.</p> <p>Gentlemen : Mr. Isaac Rothschild wishes to again renew his note, $4,000, which matured to-day; and upon referring to our correspondence in regard to his loan or line of loans, the idea is suggested that it would be better to have the enclosed contract, making the matter more definite and describing the notes so there can be no mistakes as to the amount of your guarantee. And I would prefer to have it in this shape, so it can be carried with the notes and not in the form of correspondence. It is the same thing to you and much more convenient for the bank. Please each sign and return one copy to me.</p> <p>Yours truly,</p> <p>Anthony Burdick, Pres’t.”</p> <p>“Chicago, February 19, 1897.</p> <p>A. Burdick, Esq., Pres. First Rational Bank, Davenport, Iowa.</p> <p>Dear Sir: In response to your favor of recent date, we beg to say that Mr. Rothschild, who has been confined to home for several weeks past on account of illness, has left for California, and Mr. A. M. Rothschild is at present in the East, and will not return for about two weeks. Upon his return we will bring the matter you speak of to his attention.</p> <p>Yours respectfully,</p> <p>A. M. Rothschild & Co.,</p> <p>Secy.”</p> <p>“ Chicago, 4-21-1897.</p> <p>Anthony A. Burdick, Esq., Pres. First Rational Bank,</p> <p>Davenport, Iowa.</p> <p>Dear Sir : In response to vour favor of the 17th instant, would say that my brother, E. Rothschild, has not returned from California as yet, and in his absence I am not willing to give the firm’s indorsement. When he returns I will take the matter up with him and let you hear from me further. Yours respectfully,</p> <p>A. M. Rothschild.”</p> <p>“May 21, 1897.</p> <p>Mess. E. Rothschild and A. M. Rothschild, Chicago.</p> <p>Dear Sirs: Note of Isaac Rothschild due today favor of this bank, for §3,750.00 was protested for non-payment, and we look to you for the payment thereof.</p> <p>Yours truly,</p> <p>C. A. Mast, Or.”</p> <p>The plaintiff loaned to Isaac Rothschild the following amounts, at the following dates, maturing as set forth:</p> <p>1895. August 1, §5,000, due November 4, 1895.</p> <p>November 4, renewed; due February 7, 1896.</p> <p>February 7, added §2,000, makes $7,000; due May 9.</p> <p>May 9, paid §2,000; renewed §5,000; due August 12, 1896.</p> <p>August 12, renewed; due November 14, 1896.</p> <p>November 14, paid §1,000; renewed §4,000; due February 18, 1897.</p> <p>February 17, paid §250; renewed §3,750; due May 21, 1897.</p> <p>1895. September 12, loaned §3,000; due December 14, 1895.</p> <p>December 14, renewed; due March 17, 1896.</p> <p>March 17, renewed; due June 20, 1896.</p> <p>June 20, renewed; due September 23, 1896.</p> <p>September 23, renewed; due December 24, 1896.</p> <p>December 24, renewed; due March 27, 1897.</p> <p>March 27, paid §250; renewed §2,750; due June 30,1897.</p> <p>The bank'held at time of the failure of the Isaac Rothschild of these transactions, note made February 17, 1897, §3,750, ninety days to order of the bank, by Isaac Rothschild. Note made March 27,1897, §2,750, three months, to the order of the bank, by Isaac Rothschild.</p> <p>At the time of bringing suit all the bank bad received on these notes was from one Ilayum, an indorser, May 28, 1897, $4,000, and from Isaac Rothschild’s assignee, January 26, 1898, §1,007.50. Such sum was made up of a dividend to Hayum of §620 on proof of his claim for §4,000, paid by him as indorser, and §387.50 on plaintiff’s claim; these dividends, plaintiff received and credited to its account against Isaac Rothschild, suing appellee for the balance.</p> <p>Isaac Rothschild made an assignment to John W. Bailo rd; before suit the assignment had been closed, and the assignee discharged.</p> <p>When the bank received the $4,000, it released Hayum. It was the custom of the First Rational Bank of Davenport to renew maturing paper.</p> <p>Whether it renewed depended upon a good many circumstances, as to the character of the maker, financially and otherwise, and security offered, and line of credit that the party was entitled to, and other considerations.</p> <p>There was a verdict finding the issue for the defendant and the following special finding:</p> <p>“ Did the plaintiff and its attorney, Murphy, in making the settlement with Hayum and in releasing Hayum, .exercise ordinary care—that is to say, such care as ordinarily prudent persons would have exercised under similar circumstances ? ”</p> <p>Answer: “ Yes.”</p>

<p>Bill for Foreclosure.—Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

Bill for a Divorce.—Error to the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. April 17,1901, Edgar C. Severns, defendant in error, filed a bill for divorce from plaintiff in error, Gertrude M. Severns, alleging that they were married October 4,1900, and lived together as husband and wife until January 29, 1901.

<p>Passenger Elevators— Operator Must Exercise Highest Degree of Care and Diligence.—Operators of passenger elevators upon the grounds of public policy are required to exercise the highest degree of care and diligence. The law holds them to the utmost care and diligence of very cautious persons, and responsible for the slightest neglect.</p> <p>2. Same—Averment of the Breaking of the Machinery and the Consequent Falling of the Elevator Raises a Presumption of Negligence.— An averment of the breaking of the machinery and the consequent falling of the elevator from the, third floor to the basement raises a presumption of negligence.</p> <p>3. Pleading — An Averment that an Act is Negligent is Unnecessary.—The pleader must state facts from which the law will raise a duty and show an omission of the duty and resulting injury, but when that is done an averment that the act was negligent is unnecessary.</p> <p>4. Same—Declaration May be Amended Before Judgment. —The court has power to permit an amendment to the declaration at any time before judgment rendered.</p> <p>5. Statute of Limitations—Should Not Avail Against an Amended Declaration Re-stating the Same Cause of Action.—A plea of the statute of limitations should not avail against an amended declaration which merely re-states the same cause of action.</p> <p>6. Verdict—Aider by.—If the issues joined be such as necessarily required, on the trial, proof of the facts defectively stated, or omitted, and without which it is to be presumed that either the judge would direct the jury to give or that the jury would have given the verdict, such defect, imperfection or omission is cured by verdict.</p>

<p>1. Contracts—Lease Under Seal May be Abrogated by Parol Agreement.—A lease, although under seal, may be abrogated, canceled and surrendered by an executed parol agreement.</p> <p>3. Debtor and Creditor—A Long Retention of a Chech Tends to Show Its Acceptance.—A long unexplained retention of a check tends to show its acceptance with the conditions upon which it was tendered.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903. This is a suit for personal injuries, resulting in the loss of appellee’s left leg, taken off about four or five inches from his body, and his left'arm, removed at about the same relative distance. He recovered a judgment, which appellant seeks to reverse.

<p>1. Mechanics’ Liens—Where Compliance with the Statute is Contained in a Supplemental Contract.—Where a written instrument contained no provision as to the time of the completion of the work or making payment therefor, but such provisions were contained in a supplemental agreement, a mechanic’s lien should be allowed when the agreements taken together may be considered as constituting a single agreement in writing, or the supplemental agreement is a new contract by itself.</p> <p>2. Chancery Practice—What Defendant May Contest on Error Where Default and Decree Pro Confesso Have Been Entered.—A defendant to a bill in chancery, where a default and decree pro confesso have been entered, may, on error, contest the sufficiency of the bill itself, or that its averments do not justify the decree.</p> <p>3. Same—What Can Not Be Alleged on Error Under a Decree Pro Confesso.—Under a decree pro confesso a defendant can not, on error, allege a want or insufficiency in the testimony or evidence heard by the trial court.</p> <p>4. Same—Where Notice of0Talcing of Testimony is Not Necessary.— Whe'-e a party has been fully represented in all proceedings, he can not complain that he was not personally notified of the taking of testimony.</p> <p>5. Same—Where Facts are Stated in Decree, and Evidence is Not Given in the Record.—Where the decree states that a hearing was had upon proofs, and the facts are found by the court in the decree, it will bind the defendants, unless the decree purports to give the evidence or refers to it in the record, and upon inspection it is insufficient to warrant the conclusions at which the court has arrived.</p>

<p>1. Bill of Exceptions—Presumption, Where it Fails to Show that it Contains All Eviclenee Introduced at the Trial.—When the bill of exceptions fails to show that it contains all the evidence introduced on the trial of a cause, it must be presumed that there -was sufficient, proper and legal evidence before the trial court to justify the judgment rendered.</p>

<p>1. Judgments—Not to be Vacated Because Attorney Through Press of~€Hher Work Did Not Present Defense. —Even though there be a meritorious defense disclosed by the affidavits, the judgment should not be vacated where, through press of other business upon defendant’s attorney, that defense is not presented.</p> <p>2. Same—Defendant Must Show Proper Diligence to be Ready for Trial.—A judgment by default will not be set aside, although the defendant may show that he has a good defense, where it does not appear that he has exercised proper diligence to be ready for trial.</p> <p>3. Exceptions—Must Preserve Evidence to Make it Available in a Gourt of Review.—Evidence not preserved by a bill of exceptions can not be considered in a court of review.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903. This was an action for damages by appellant begun before a justice of the peace of Cook county. The justice rendered a judgment against the appellant. On appeal to the Circuit Court there was a trial before a jury and a verdict and judgment for the defendant.

<p>Bill to Have a Judgment Declared Null and Void—Error to the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in the Branch Appellate Court at the March term, 1002.</p> <p>Rehearing denied.</p>

<p>Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903. This is an action in assumpsit to recover for lumber sold and delivered by appellees to appellant. The cause was submitted to the trial court upon an agreed statement of facts.

Bill to Construe a Will.—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in the Branch Appellate Court at the October term, 1903. Statement.—The facts upon which this litigation arises are substantially as follows: John DeKoven, who died April 30, 1898, left a last will and testament, by which he disposed of an estate amounting, it is said, to more than seven hundred and fifty thousand dollars.

<p>1. Instructions—Directing Verdict, Must Contain All Facts Which Authorize the Verdict Directed.—Where an instruction directs a verdict, or amounts to such a direction in case the jury shall find certain facts, it must contain all the facts which will authorize the verdict directed.</p> <p>3. Same— Where They Supplement Each Other, Each One Must State the Law Correctly.—Where instructions supplement each other each one must state the law correctly as far as it goes, and they should be in harmony, so that the jury may not be misled. It can not be assumed that the jury are able to select from contradictory instructions the one which correctly states the law.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903,</p>

<p>1. Instructions—Stating Certain Facts to the Jury as Constituting Negligence.—An instruction which sets forth certain facts and states that if they, are true, plaintiff should recover, is erroneous, as it amounts to telling the jury that the facts therein set forth constituted in the law, negligence.</p> <p>3. Same—Direeting a Verdiet Must Contain All Facts Which Will Axithorize the Verdict Directed.—An instruction which directs a verdict for either party, or amounts to such a direction in case the jury shall find certain facts, must necessarily contain all the facts which will authorize the verdict directed.</p> <p>3. Same—Error in One Not Cured by Others.—An error in an instruction is not obviated by giving conflicting instructions.</p> <p>4. Same—As to the Duty of a Common Carrier.—An instruction which declares the duty of a common carrier to be to use the highest degree of care, vigilance and foresight consistent with the character and mode of conveyance adopted to safely carry and deliver their passengers. is erroneous. A complete statement of the degree of care required must also, contain the element of reasonableness, and practicability.</p> <p>5. Negligence—A Question for the Jury.—Under correct instruction of law it is for the jury to determine, from all the evidence, whether there is negligence.</p>

<p>1. Mortgages—Mortgagee Not Prevented from Foreclosing Becav.se of Accepting Partial Payment.—A mortgagee may accept a partial payment of moneys due, and upon failure to pay the balance he is not prevented from enforcing the provisions of his mortgage to collect the same at any time thereafter, until barred by the statute of limitations.</p> <p>3. Same—Mortgagee in Foreclosure Need Not Allege that There Has Been No Waiver of Condition.—It is not incumbent upon the complainant to allege in his bill that there has been no waiver of the conditions contained in the trust deed, but he is required only to state with reference thereto, that the mortgagor “has broken his covenant in said deed contained,” and the facts upon which said allegation is based.</p> <p>3. Same—Allowance of Reasonable Solicitor’s Fees is Proper.—Where a mortgage contains a provision for the payment of reasonable solicitor’s fees, an allowance by the court of a reasonable amount under such provision is proper.</p> <p>4. Appellate Court Practice— Where the Record Filed in This Court Does Not Contain the Evidence Taken Before the Master.-—Where the record filed in this court does not contain the evidence taken before the master, the court will presume that the evidence was sufficient to sustain the findings of fact recited in the decree.</p>

<p>I. Cross-bill—Whether Germane to the Original Bill.—In a proceeding to foreclose a trust deed, a cross-bill by some of several defendants is germane to the original bill, although it puts in issue matters in which only they and the complainant are interested.</p>

<p>1. Contracts—Offer Must be Accepted Within a Reasonable Time.— Plaintiff proposed to buy one quarter interest in a brick manufacturing plant. Defendant had undertaken to sell $30,000 worth of bonds for the brick company, provided upon examination by defendant the assets of the brick company and its title were found good. Plaintiff advanced $173 to defendant to pay the cost of such examination and other incidental expenses connected with issuing the bonds; taking, however, a receipt from defendant to the effect that if, upon examination, defendant should decline to accept the security for the bond issue, it would return to him such amount, less $10 for examining the plant. The bonds were never issued nor sold by defendant, nor has there been a refusal to sell when issued, as originally contemplated. Plaintiff wrote a letter requesting payment of the $173 advanced by him, less the expenses of examination. Held, that plaintiff was simply a prospective purchaser. Defendant was bound to accept or decline the security within a reasonable time. After waiting for months for the acceptance of the security by the defendant, the plaintiff was entitled to the return of his money.</p>

<p>1. Pleading— Where aSjpeeifie Act of Negligenceis Charged, it Must Be Proved.—If a specific act of negligence is charged, it is incumbent on the plaintiff to prove the act.</p> <p>2. Same—Recovery May Be Had on Common Law Grounds of Negligence if Evidence to Prove Statutory Grounds Fails.—Where an ordinance quoted in a count of the declaration is not introduced in evidence, the count may still be sufficient to support a recovery upon the common law grounds of negligence.</p> <p>3. Master and Servant—Servant Assumes All Usual Known Dangers.—As between employer and employe, the latter assumes all the usual known dangers incident to the employment.</p> <p>4. Same—Servant Voluntarily Continuing in Employment ivith Knowledge of Defeciive Appliances.—A servant who, with full opportunity of knowledge, works for any considerable length of time in a building, or upon premises where there are dangerous defects, and does not make complaint and ask for the repairs or improvement necessary for safety, is held to have assumed the risks involved.</p>

<p>1. Evidence—Showing Not Warranting a Subpoena Duces Tecum.— Where it does not appear by affidavit or otherwise, that the books called for by a subpoena duces tecum were material to the issues in the cause nor for what cause the defendants were indicted, but is merely recited in the order that the subpoena calls for the production of evidence material to the issues, a subpoena duces tecum is not authorized under Sec. 9, Oh. 51, R. S.</p>

<p>1. Practice—Insufficient Notice to Place a Cause upon the Trial Calendar.—Notice that a cause will be placed on the trial calendar, surved on a person who is not shown by the affidavit to be in the employ of the solicitor's of the opposite party, nor.that she, either directly or indirectly, represented them, is wholly insufficient under rule 5 of the Superior Ooiirt. i</p> <p>3. Mechanics’ Liens— In sufficient Petition.—A petition for a mechanic's lien which fails to allege the making of any contract for the repairs by the petitioners, either with the owner or with the original contractor, which states no time within which the work was to be completed, and no time of payment, and does not show directly that the repairs were ever made by any one, does not justify the entry of a decree fixing a lien upon the described premises.</p> <p>3. Same —Several Petitioners Filing Separate Claims Under Separate Contracts.—A petition is improperly framed where each of the petitioners files a separate claim setting up a separate and independent contract, and calling for a certain sum of money due to him individually, and riot to the petitioners jointly.</p>

<p>1. Appeals—Do Not Lie from Interlocutory Orders.— An appeal does not lie from an order solely to pay the expenses incurred in pursuing the investigation toward a final decree not yet reached.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heard in this court at the March term, 1902.

<p>1. Bonds—Equivocal Expressions Construed More Strongly Against the Party Preparing.—Equivocal expressions contained in a bond which would narrow the field of its obligation are construed more strongly against the party preparing it.</p> <p>3. Embezzlement—Who May Be Guilty of, Under Sec. 76, Ch. 3S, R. S.—Collecting agents, on commission, who follow that as an independent business, can not commit embezzlement of the moneys so collected. But where one, not engaged in collecting for others as a business, is employed as agent to collect for his employer, he is an agent within the statute and may be indicted for embezzlement. And it is not material whether the servant be paid by certain wages, or by a pei centage on the receipts, or by a share of the profits arising from his labor.</p> <p>3. Words and Phrases— Construction of Bond,.—A bond guaranteed against loss “ sustained by the employer by or through the dishonesty or any act of fraud of the employe amounting to larceny or embezzlement, in connection with the duties,” etc. Held, that the phrase “amounting to larceny or embezzlement,” did not qualify the word “ dishonesty," and that the bond guarantees against any financial loss'sustained by the employer through the dishonesty of an employe and also for any loss sustained through any act of fraud on his part amounting to larceny or embezzlement.</p>

<p>1. Dedication—Town Plat Insufficient to Create Statutory Dedication.—A town plat upon which there is nothing to indicate by whom it was made, no acknowledgment, no certificate of a surveyor nor number of blocks and lots, is essentially defective and can not create a statutory dedication.</p> <p>2. Same—Recording of Plat is an Offer to Dedicate.—The recording of a plat is an oiler to dedicate the streets to the public, and the effect of a subsequent conveyance of lots fronting on streets shown on the plat, with reference to the plat, has the effect of vesting in the grantee of such lots title to the center line of the street, subject to the public easement In the street.</p> <p>3. Same—Of Streets in Subdivision—Acceptance of by City.—Where a city takes possession of the pipes, hydrants, etc., in the streets of an annexed subdivision and connects them with its general water system, so as to form part thereof, and supplies water by means of such pipes, it accepts the common law dedication of the streets as public streets.</p> <p>4. Constitutional Law—Taking a Private System of Water-ioorks for Public Use.—The taking by a city of a private system of waterworks laid in the streets of a subdivision, upon' its annexation to the city, and connecting it with its system of water-works, for the purpose of distributing water to the annexed territory, is a taking of private property for public use within the meaning of the constitution, and the owners are entitled to recover the value of the plant with interest from the date of taking.</p> <p>5. Pleading!—Submitting Case to Court on an Agreed Statement of Facts Waives Questions of Pleading.—When parties submit their case to the court on an agreed statement of facts, all questions as to the formal pleadings are thereby waived, unless expressly reserved.</p> <p>6. Municipal Corporations — Private Water-works System in Streets —The plaintiffs, owners of a tract of land, subdivided it into lots and streets and made a common law dedication of the latter, and constructed a private syetem of water-works through said streets. Afterward, upon annexation of the subdivision to the city, the latter assumed exclusive control of said system, and connected the same with its system of water-works. Held, that when the premises became annexed to the city, it did not acquire the fee of the streets but only the control of such streets as the public had, by user, accepted the dedication of prior to annexation, and such as, the public not having accepted the dedication of. it might accept as public streets, and is liable for the value of the water-works system.</p>

Assumpsit.—Error to the Superior Court of Cook County; the Hon. Philir Stein, Judge presiding. Heard in this court at the October term, 1902. This is a suit in assumpsit brought by Stratton against the Howes. The summons was issued February 17, T899. With the general issue each defendant filed a plea of the five years statute of limitations.

<p>1. Injunctions—Dissolution of Injunction a Final Order, When.— An order dismissing an injunction is a final order where the injunction is the only relief prayed for in the bill, and is equivalent to a dismissal of the bill.</p> <p>2. Landlord and Tenant—Tenant Holding Over Against the Will of the Landlord Forfeits Right to Remove Fixtures.—Where the tenant remains in possession of the demised premises after the expiration of the lease and against the consent of the landlord, he is a trespasser and has forfeited his right to remove trade fixtures.</p> <p>3. Trade Fixtures—May Be Removed During the Term.— Trade fixtures become annexed to the real estate, but the tenant may remove them during his term, and if he fails to do so, he can not afterward claim them against the owner of the land.</p>

<p>1. Master and Servant—Servant Assumes the Ordinary BisTcs of the Employment.—A. lineman engaged in climbing telegraph poles assumes the risk incident to the decayed and unsound condition of the poles.</p> <p>3. Evidence—Permission to Exhibit Injured, Members to the Jury is Within the Discretion of the Court.—Whether the plaintiff may exhibit his injuries to the jury lies within the discretion of the trial court.</p>

<p>Bill to Foreclose a Trust Deed.—Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding. Heard in this court at the October term, 1902.</p>

Assumpsit, for goods sold and delivered. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in this court at the October term, 1902. Plaintiffs in error on January 18, 1900, obtained a judgment in assumpsit for $156.72, before a justice, against defendant in error as a copartner of C. F. Foskett, who was not served.

Aclion for Funeral Benefits.—Error to the Circuit Court of Cook County; the Hon. Elbridq-e Hahecy, Judge presiding. Heard in this court at the March term, 1903. Plaintiff in error is a trades union society, made up of a central government situate in Philadelphia, Pa., and of a system of local unions situate in various places throughout the country. The central body is composed of the local unions, each of which is considered as a unit.

<p>1. Injunctions—Rearing on Damages May Be Riad After Decree is Filed.—Where the suggestion of damages was filed before the entry of the final decree, the hearing and assessment thereon may be had at any subsequent term.</p> <p>3. Chancery Practice — Where the Facts upon Which the Decree is Based are Fully Recited in the Deci'ee.—Where the facts upon which the decree is based are fully recited in the decree, it is unnecessary to preserve in the record the evidence heard by the court in order to maintain the decree.</p>

<p>Bill for a Receiver and for an Accounting.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding. Heard in this court at the October term, 1903.</p>

<p>Bill for an Accounting.—Appeal from the Superior Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in this court at the October term, 1903.</p> <p>Appellant was complainant and appellees were defendants in the Superior Court. The bill was tiled by complainant against John 0. Schaffer, Samnel B. Hughes, Adolph Bose, -Porter, D. E. Town, B. F. Griffith, Murray F. Smith, the Vicksburg Bailroad Power and Manufacturing Company, and F. S. Mordaunt. Schaffer, Town and Mordaunt appeared and answered the bill. The sheriff of Warren county made a return that he served Hughes, Griffith and the Vicksburg, etc., company with notice and copies of the bill, but these parties did not appear or answer. Smith was not served, nor did he appear. The cause ivas heard by the chancellor on the testimony of witnesses and documents produced in open court, and the court dismissed the bill for want of equity against all the defendants except Mordaunt, from which decree the complainant appealed.</p> <p>The facts averred in the bill are substantially as follows : January 3, 1898, complainant, Mordaunt and Schaffer, agreed to co-operate in the procurement of street railway franchises in the city of Vicksburg and the village of Speed’s addition, in Warren county, Mississippi, and to cooperate in the purchase or construction and operation of an electric power and light plant. Mordaunt agreed to assist complainant in procuring the franchises, and Schaffer agreed to defnvy one-half of the necessary expenses and do all in his power to effect a sale of the stocks and bonds of a corporation to be organized by the parties. Complainant, January 15, 1898, and at other times, worked in furtherance of the undertaking, and February 1, 1898, complainant and Mordaunt obtained, in complainant’s name, the desired franchises. February 15, 1898, Mordaunt and Schaffer agreed that Schaffer was to receive seventy-ñve per cent of the profits which might be made by the parties to the agreement of January 3, 1898, from the construction or operation of the street railway and the electric power and light plant, including seventy-five per cent of stock of the proposed corporation not used in the construction, purchase or procurement of the railway or electric light plant, issued to them or for their use, and that Mordaunt was to receive the remaining twenty-five per cent, and further agreed that from said twenty-five per cent Mordaunt was to compensate his associates, of whom complainant was one, for their services.</p> <p>July 15, 1898, Schaffer, without notice to complainant, purchased, in Hew York City, an electric light plant situated in Vicksburg, and claimed that he paid for it $46,000, inclusive of $2,000 paid to a broker as commission; whereas he paid therefor only $16,000.</p> <p>August 15, 1898, Mike J. Mulvihill and Murray F, Smith, both of Vicksburg, with Schaffer’s knowledge and approval, proposed to complainant that he should assign the said franchise to Smith, and that, in consideration of such assignment, one-quarter of the profits to be received by Mordaunt should be paid to complainant, and Mordaunt agreed to the said proposal, and complainant accepted the same and assigned said franchise to said Smith. The last mentioned agreement was made by Schaffer’s authority and in his behalf.</p> <p>May 26, 1898, the Vicksburg Railroad, Power and Manufacturing Company was organized, and, to purchase said electric light plants and construct said railway, said corporation issued stocks and bonds to a large amount, the amount being unknown to complainant. August 16, 1898, said Smith transferred to said corporation the franchise above mentioned, and Schaffer transferred to said corporation the electric light plant, and the corporation agreed to issue to Schaffer $300,000 of its capital stock and $100,000 in mortgage bonds. Said " corporation sold to Schaffer $100,000 in mortgage bonds, which were of the value of .§100,000, for §90,000, and Schaffer derived a profit therefrom of at least, to wit, §15,000, to one-fourth of twenty-five per cent of which last mentioned sum complainant is entitled.</p> <p>September 1,1898, the street railway was constructed and was operated by said corporation. Schaffer is the president, Samuel R. Hughes the vice-president, B. W. Griffith the treasurer, and Adolph Rose,-Porter and D. E. Town are the directors of the corporation. Ninety thousand dollars of the $100,000 mortgage bonds and §250,000 of the §300,000 of the capital stock have not, to complainant’s knowledge, been issued to Schaffer, but are withheld by the officers of the corporation for the purpose of defrauding complainant of his share of the profits. Schaffer and Mordaunt refuse to pay any money to complainant. Complainant knows not the amount of profits made, but avers that, on a true settlement, a large amount is due him. The prayer is for an accounting" between Schaffer and Mordaunt, and an ascertainment of the amount due complainant, and for general relief.</p> <p>Schaffer, in his answer, denies the alleged agreement of January 3, 1898, or that he ever contemplated or agreed that complainant should share in. the profits; denies any indebtedness to Mordaunt; avers that he is an utter stranger to any contract between Mordaunt and complainant; denies that he was to receive from the corporation §300,000 of its capital stock and §100,000 in mortgage bonds; avers that he owned only one-half of the electric light plant, and in consideration of transferring the same to the corporation he received from the corporation stock of the par value of $50,000 and mortgage bonds of the par value of §25,000, and that he purchased from the corporation mortgage bonds of the face value of §75,000, paying therefor §62,500, which was their full value; that he has been unable to sell the same for the amount so paid; that there is no market price for the bonds and stock owned by him, and he has been unable to sell the same for ninety per cent of their par value; alleges that he refused to have anything to do with the enterprise so long as complainant had anything to do. therewith.</p> <p>Town answers, in effect, that he is an utter stranger to all the matters averred in the bill.</p> <p>Mordaunt admits, in his answer, agreements to share profits with complainant, substantially as alleged in the bill.</p> <p>Replications were filed to the answers.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding. Heard in this court at the October term, 1003. Appellee, a baker by trade, aged fifty-five years, was injured while in the employ of appellant. His hand was caught between two iron rollers of an appliance used for mixing dough.

<p>‘ Forcible Detainer.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge presiding. Heard in this court at the October term, 1903.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in this court at the October term, 1902.</p>

Bill for an Injunction.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903. Appellant filed his bill setting forth an argument by him made with Charles and George Moork, appellees, whereby, among other things, it was provided as follows: “ How, therefore, in consideration of the premises, the parties hereto agree as follows: First.

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>Attachment.—Appeal from the Superior Court of Cook County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>Action for Rent.—Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>Debt, upon a renlevin bond. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. Carriers of Passengers— When a Prima Facie Case is Made Against.—Whenever it appears that an accident to a passenger is of that kind which, according to common experience, does not usually occur except from some fault of the carrier, or from some defect of its carriage or appliances, or condition of its road, a prima facie case is made against it.</p> <p>2. Same—Duty Toward Passenger.—A railway common carrier is bound for the safety of passengers to exercise the highest degree of care compatible with the practical operation of its road.</p> <p>3. Instructions—Should Not be Limited to a Certain Number.—A rule of the court that instructions should be limited to a given number is unreasonable.</p> <p>4. Same—A s to Disregarding a Release of Cause of Action for Damages.—An mstrnction modified by the court was given as follows, the modification thereof being shown by the words inserted in brackets : “ The court instructs the jury that they have no right to disregard the release offered in evidence on the ground [merely] of any inadequacy of the consideration therein named, nor can the jury disregard the same [merely] because of any unfair conduct, if any there be, on the part of the defendant, or its agents, which relates solely to the consideration for which such release was given.” Held, that the instruction as asked should have been given. The modification had a tendency to induce the jury to think that there might be unstated reasons for disregarding the release.</p> <p>5. Fraud—There Must bean Intention to Deceive.— Fraud can not exist without an intention to deceive.</p> <p>6. Words and Phrases—Fraud Defined.—Actual or positive fradd includes cases of the intentional and successful employment of any cunning, deception or artifice used to circumvent, cheat or deceive another.</p>

<p>Bill for an Injunction.—Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>Bill to Set Aside a Conveyance.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

Trespass on the Case, on promises. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. This action was brought by appellee to recover $5,603.35, the stated price of 522 drums of caustic soda, which it had delivered during the months of November and December, 1899, to appellant.

<p>Trespass on the Case.—Appeal from the Circuit Court of Cook County-; the Hon. Charles G. Neely, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>1. Practice— Where the Gase May be Taken from the Jury.—The case may be taken from the jury where the evidence, with all the inferences the jury can justifiably draw therefrom, is wholly insufficient, if credited, to sustain a verdict for the plaintiff.</p> <p>3. Same—Improper Interruptions by Counsel.—In a closely balanced case numerous interruptions of counsel, who present improper and illegitimate considerations to the jury, is ground for setting the verdict aside and awarding a new trial.</p> <p>3. Street Railways—Company Has Superior Right of Travel on Tracks Except at Crossings. —A street railway company has the paramount right of way upon its tracks at places other than street crossings, but it must use all reasonable means to avoid injuring those whom it knows may lawfully use that part of the street occupied by its tracks.</p> <p>4. Same—Motorman Not Required to Slacken Speed While Passing a Vehicle Going Parallel to Track Not at a Crossing.—A motorman is not .required to stop his car when approaching a vehicle moving along the street in the same direction with no indication that it is about to get on the track in front of the car.</p> <p>5. Instructions—Improper to Burden the Trial Court with a Large Number.—It is improper to burden the trial court with an examination of a large number of instructions; nevertheless a charge composed of instructions which are short and clear and of a character to enlighten the jury is preferable to a charge composed of a few that are long, diffuse and complicated.</p>

Creditoi-s Bill, for discovery and relief. Appeal from the Circuit Court of Cook County; the Hon. Elbrddge Hanecy, Judge p residing. Heard in the Branch Appellate Court at the March term, 1902. This was a creditor’s bill brought by appellant against appellee and others for discovery and relief.

<p>Assumpsit, upon a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop. Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

Bill to Foreclose a Trust Deed.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. In 1885, Johann F. Kaddatz purchased for the sum of $350 an improved lot now known and described as 1296 North Western Avenue in the city of Chicago.

<p>1. Witnesses—Credibility of—Weight of Testimony a Question for the Jury.—The jury are the’judges of the credibility of the witnesses and the weight of the testimony, and may consider to what extent witnesses are corroborated or contradicted by other testimony, or by facts or circumstances proved, and may also judge of the probability of testimony.</p>

<p>Divorce.—Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. CUancery Practice—When Finding of Master Will Not Be Disturbed.—The finding of the master will not be disturbed unless the weight of the evidence is clearly and manifestly against it.</p> <p>2. Practice—Presumption in Favor of Decree in the Absence of a Complete Record.—In the absence of a complete record, the decree of the Circuit Court will be supported by every reasonable intendment and presumption.</p> <p>3. Creditor’s Bill— Upon What Property Creditor Acquires a Lien by Filing Bill.—By filing a judgment creditor’s bill, the creditor acquires a specific lien on the property which'the debtor had at the commencement of the suit, entitling him to a priority of payment out of that property; but a supplemental bill is necessary to obtain a lien upon after-acquired property of the debtor.</p> <p>4. Bankruptcy—When Lien of a Creditor’s Bill is Not Affected Thereby.—A lien of a creditor’s bill, filed more than four months before the filing of a petition in bankruptcy, is not thereby affected.</p> <p>5. Same—Title Remains in Bankrupt Until the Appointment of a Trustee.—The title of the bankrupt is not divested by an adjudication in bankruptcy, but remains in him until the appointment of a trustee.</p> <p>6. Same— Court Will Not Presume the Appointment of a Trustee.— A court will not presume the appointment of a trustee in order to set aside a decree and to defeat the claim acquired by the creditor’s bill.</p> <p>7. Same—Partnership Obligations Not Discharged by Discharge of One Partner Individually. —Bankruptcy proceedings instituted in behalf of one partner not in accordance with the provisions of the bankruptcy act of 1898, where a partnership is concerned, do not affect the lien of partnership creditors under their creditor’s bill.</p>

Frank Baker, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. This case was originally brought before a justice of the peace, from whom it was appealed to the Circuit Court. Appellant had contracts with appellee wherein the latter agreed to construct a building for the former.

<p>■ Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Robert B. Shirley, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

Assumpsit, for money had and received. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. This was an action brought by appellee against appellant for money had and received.

<p>1. Liens—Foreclosure.—A company in 1891 made an issue of $300,000 worth of bonds. Afterward in 1895 another $100,000 issue was made. The trust deed securing the issue of 1895 contained the following recital: “ It is expressly understood and agreed that the property hereby conveyed is subject to the lien of a trust deed dated the first day of July, A. D. 1891,” etc. Three hundred thousand dollars of the 1895 issue were deposited with the trustee under an arrangement giving the holders of the 1891 bonds the right to surrender their first mortgage bonds and take second mortgage bonds. Held, that the trust deed of 1891 was the superior lien.</p> <p>2. Same—Verbal Agreements Not to Foreclose Trust Deed According to its Terms with President of Trust Company of No Legal Effect.—A verbal agreement between the president of a company issuing bonds secured by a trust deed and the president of the trustee company under the deed, that such deed shall not be foreclosed according to its terms, is without legal effect. ■</p> <p>3. Solicitors’ Fees—Properly Allowed for Services Rendered and to be Rendered.—It is proper to allow solicitors’ fees estimated upon the hypothesis that the decree in foreclosure will be entered in the ordinary course, taking into consideration only such services as will clearly be required before the termination of the suit.</p> <p>4. Foreclosure—Proceedings Save No Effect upon Interests of Persons Not Made Parties.—The rights of one not a party to a foreclosure proceeding are not thereby foreclosed.</p>

<p>1. Banks and Banking—Recovery of Money Paid upon a Raised or Altered Check.—Where money is paid by mistake, by a bank upon a raised or altered check, it may be recovered back by the party to whom it was paid as having been paid without consideration.</p> <p>3. Same— What Liability is Created by Certification of Check.— A bank in certifying a check vouches only that the signature is genuine and that there are funds enough to pay the amount for which the check purports to be drawn. The bank certifying does not warrant the genuineness of the body of the check.</p> <p>3. Same— Purpose of Certification.—When a check is presented for certification to a bank upon which it is drawn, the purpose is to ascertain whether the drawer of the check has funds sufficient to meet it, and further to obtain the engagement of the bank that those funds shall not be withdrawn from the bank by the drawer of the check.</p> <p>4. Same—Unreasonable Delay in Discovering Forgery of Check and Giving Notice Bars Payor's Recovery.— Where there has been an unreasonable delay in discovering the forgery of a check which has been paid, and giving notice, it will bar a recovery by the payor.</p> <p>5. Same—What is Reasonable Diligence in Giving Notice.—What is reasonable diligence in giving notice is usually a question of fact, under the circumstances of each particular case.</p> <p>6. Same—Where Bank Paying Money on a Raised Check Fleets to Proceed Against the Payee.—Where a bank which has paid out money by mistake upon a raised check elects not to inform the bank of the forgery so that it may protect itself, but elects to proceed against the payee of the check, it is such conduct as will tend to preclude a recovery from the bank to which the money was originally paid.</p> <p>7. Same—Payor of Raised Draft Must Tender Draft Before Bringing Suit.—Before a payor of a raised draft can bring suit for the recovery of the money a return or proper tender of the draft is essential, or some act shown on the part of the defendant making such return or tender useless.</p> <p>8. Verdict—When It May be Directed for the Defendant.—When the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury but may direct a verdict for the defendant.</p>

<p>Bill for an Injunction.—Appeal from an interlocutory order of the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p> <p>This is an appeal from an order granting an injunction restraining the defendants, Charles J. Jones, individually and as executor, Bose A. Emmons and others, from collecting or receiving any dividends upon the stock of the Chicago Newspaper Union, and from selling, assigning, transferring or in any manner dealing with said stock belonging to the estate of Harry P. Jones, and from procuring a transfer of said stock upon the books of said corporation, and for an injunction against the Chicago Newspaper Union restraining it from paying any of the dividends above named to any of the defendants, or any one claiming by, through or under them, and from making, or in any manner recognizing any transfer of such stock upon the books of said corporation or otherwise.</p> <p>The bill upon which the injunction was obtained charges that the complainant has been for fortjr years last past a resident of Cook county; that his son, Harry, while a resident of Chicago, temporarily sojourning in San Francisco, California, there died, October 25, 1902; that appellant claims to be the executor of a will, said by him to have been made by the deceased while so temporarily in San Fran, cisco; that the deceased had for some time prior to his death been much out of and traveling for his health; that while in San Francisco, prior to the making of the alleged will, he was very ill and under the influence of drugs, narcotics and morphine, given to him for the purpose of effecting a fraudulent design and conspiracy by appellant and others to procure the making by said Harry P. Jones of a will for the benefit of appellant and others made defendants to the bill and now seeking to profit by said alleged will; that in pursuance of said conspiracy, without notice to appellee, the father of said Harry P. Jones, deceased, appellant procured in San Francisco the admitting of said alleged will to probate and the appointment of him, appellant, as executor thereof; that said appellant has given no bond or other security for the performance of his duty as such executor, and that he is financial^ irresponsible; that the said Harry P. Jones was at the time of his death the owner of stock in the .Chicago Newspaper Union, and that the certificates of stock in said union are now in the possession of appellant as executor^of said will; that dividends have been declared upon the stock of said Chicago Newspaper Union belonging to the estate of said Harry, and that other dividends will hereafter be declared; that said Charles J. Jones is now undertaking" to collect the dividend already declared, and has requested the officers of said corporation to pay said dividends accrued, and which may hereafter accrue, to him; that he claims to be entitled to such dividends by reason of the letters testamentary issued to him as executor of said pretended will; that said Charles J. Jones is about to request the transfer of said stock on the books of the corporation, and unless restrained by injunction will collect such dividends and procure such transfer.</p> <p>Appended to the bill was the affidavit of appellee, in substance, among other things, as follows : “ Affidavit of Frederick W. Jones that he has heard read the above bill subscribed by him and knows the contents thereof, and that the same is true; ” also affidavit of same that the rights of complainant will be unduly prejudiced if the injunction prayed for is not issued immediately and without notice; that the defendant, Chicago Newspaper Union, threatens to pay over at once the dividend already declared upon the stock; that affiant fears that if said Newspaper Union is notified that affiant is about to apply for an injunction, it will immediately pay over to said Charles J. Jones the dividend, and at the same time transfer the stock to him as executor; that said Charles J. Jones has given no bond or other security for the faithful performance of his duty as executor, and that he is financially irresponsible; that he is not a resident of the State of Illinois and has no property therein; and that if he should come into possession of the property and effects of said Harry P. Jones the same will be removed from the jurisdiction of the courts of Illinois; that said Harry P. Jones at the time of his death was a resident- of Illinois; that the courts of Illinois should properly have charge and jurisdiction of the administration of his estate.</p> <p>U pon the filing of the bill the court issued an injunction without notice, but upon the complainant giving bond in the sum of $2,000.</p>

<p>Bill to Remove a Cloud upon Title.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Equity—Will Not Entertain a Bill Where There is a Full Remedy at Laiv.—A court of equity will not entertain a bill for relief when the complainant has a full, plain and adequate remedy at law.</p>

Bill for an Injunction,—Appeal from an interlocutory order of the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heard in the Branch Appellate Court at the October term, 19015.

<p>Action for Slander.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p> <p>August 7, 1899, George M. Knapp, John W. Miller and Minnie M. Miller, his wife, conveyed by warranty deed to appellant, an undivided one-half interest in certain real estate on the shore of Fox Lake in Lake county, Illinois, commonly known as the “ Antlers.”</p> <p>September 14, 1899, George M. Knapp conveyed to Sollitt his right in an undivided one-half interest in certain chattels and pérsonal property situated on and being used in .connection with said real estate; said property consisting of a steam launch, tools, row boats, dining room tables, linen, dining-room utensils and other furniture on the place, which were being used in connection with the real property, which was used as a gun club or hotel.</p> <p>September 14th, George M. Knapp, by quit-claim deed, conveyed to Sollitt all his interest in the real estate above mentioned, which, together with the conveyance above mentioned, gave Sollitt a three-fourths interest in the real estate and a half interest in the personal property of the “ Antlers.”</p> <p>September 26th, an agreement xvas made between Sollitt and John W. Miller, by which Sollitt was to purchase the one-fourth interest of Miller in the said real estate, building and contents thereof, at which time Sollitt paid Miller $50 and received a receipt therefor. Thereafter in pursuance of this agreement, a deed was made by Miller and wife to Sollitt of their interest in said real estate. This deed was immediately sent by Sollitt to the recorder’s office at Waukegan in Lake county and was recorded October 5th, at three o’clock p. m.</p> <p>At the time of the obtaining of the last mentioned deed from Miller and wife, Sollitt gave to Mrs. Miller a check for $350.</p> <p>Prior to receiving these conveyances and paying the money, Sollitt had examined an abstract of title to the property, which did not show any title in John M. Moore, appellee. After Sollitt had received the aforementioned conveyance and had recorded his deeds, he received a letter from the recorder of Lake county, and an abstract of title, showing that a deed from John W. Miller and Minnie M., his wife, to John Moore of Chicago, of the property known as the “Antlers,” dated September 14, 1899, was recorded in Lake county, October 4, 1899. The record, October 4, 1899, being the date of the deed by Miller and wife made to him, Sollitt, for which he, Sollitt, had paid to them the sum of $400. This letter from the recorder was received by Sollitt about October 13th.</p> <p>October 15th, Sollitt went to see Moore, and met him in the dining-room of the “ Antlers,” where he was taking supper with Mrs. Miller and her daughter. Sollitt said to Mr. Miller, addressing him as Dr. Miller, “ I have a letter from the recorder at Waukegan, saying this property is in your name, and I want an explanation.” Sollitt then began to read an abstract from the recorder as to the deed on record at Waukegan. After he had finished, appellee said to him, “ Mr. Sollitt, I have signed and acknowledged on the 20th of September a deed to Mrs. Miller at James Conlon’s office in Oakland Music Hall, Chicago. I don’t know anything about the matter you are talking about.” To which Sollitt replied, “ You and Miller have conspired to defraud me out of this property, and if you do not go down to my office to-morrow morning at ten o’clock, I will have you arrested for fraud. I will send you, your sister and Miller up for ten years.” To which appellee replied, “ I can stand this no longer;, get out of here and get out quickly.” A Mr. Garvey, a witness for appellant, testified that at this time Mr. Miller said to Mr. Sollitt, “ Your deed is no good; Mr. Miller’s name does not appear on the deed first.” Mr. Garvey also testified that the next morning he went over to the house, the “ Antlers,” with Mr. Sollitt; that he and Sollitt went to the front door and rapped two or three times. There was no answer. They went to the back door, rapped two or three times. There was no answer; that they went to the front of the house; that a front window was down at the bottom about half way; that he, Garvey, went in through the window; that about half way across the room, a woman came from behind a partition with a revolver and said, “ Hold your hands, I want you to understand you have no right in this house. I will shoot you full of holes;” that a Mr. Smith was behind him, Garvey; that he and Smith got out; that Mr. Miller came up a little later; that the woman said, “I have a notion to shoot you anyway; that Mr. Miller said, “ Plug them full of holes, Min,” and “What does this mean?” To which Sollitt said, “It means I have taken possession.” That Miller ordered Soliitt off the place; that Miller said he had no right there. Soliitt said that he had. That Miller said, “ Knapp had no business selling out.”</p> <p>Dr. Fred Bassett, a dentist, testified that October 23, 1899, Mr. Soliitt came into his drag store at Fortieth and Cottage Grove avenue, in Chicago, and asked him if he knew Dr. Moore; that he, Bassett, replied that he did; that Soliitt then asked if he had a good reputation; to which he, Bassett, replied that he had; that after their conversation Soliitt said that Dr. Moore and his brother-in-law had flim-flammed him out of his property at Fox Lake; that they were not alone satisfied with that, but were stealing and carrying off everything about the place; that Dr. Moore stood a good chance of going to the penitentiary for ten years; that he, Soliitt, was going after him as hard as he could; that Dr. Moore did not look to be an honest man.</p> <p>. John W. Miller testified, in respect to the attempt by Garvey and Smith, at Sollitt’s instance, to get into the house, that Garvey got into the house and Smith was going to follow him, when Mrs. Miller came to the window with an empty gun; that Garvey and Smith rushed out in a hurry; that he, Miller, then said, “Mr. Soliitt, there is no necessity for any work of this kind here. Everything is straight as far as I am concerned. This property was sold by myself and \tife to Dr. Moore and by Dr. Moore to my wife;” and that October 4th the deed was made; that it was straight and legitimate so far as he knew.</p> <p>Mr. Soliitt testified that after being so told by Miller, he wrote immediately to the recorder at Waukegan; that he investigated the records and found that no such deed had been recorded.</p> <p>On Friday or Saturday, after the attempt by Garvey and Smith to get into the “ Antlers,” as told and directed by Soliitt, and there being driven out by Mrs. Miller with a revolver, Mr. Soliitt received the following letter:</p> <p>“ Friday.</p> <p>Mr. Sollitt :</p> <p>Dear Sir.—If you can not wait any longer than 5 p. m. to-clay to straighten out errors, then by all means have me, my wife and the doctor arrested, as it would help us in a damage suit. In the meantime call up Hr. "Wagner and he can satisfy you as to how the mistake occurred. I will be in to-morrow (Saturday). The error can easily be rectified, but I can not get in town to-day, as Mrs. M. is ill.</p> <p>Y ours truly,</p> <p>J. W. Miller.”</p> <p>Mr. Thomas B. Brougham testified that October 23d, Mr. Sollitt, and Mr. Knight, a lawyer, came to his office about two o’clock in the afternoon. Mr. John W. Miller had before this told Mr. Sollitt that Knight and Wagner had been his attorneys. Brougham testified Mr. Knight said to him, “ I have come here with Mr. Sollitt in relation to Miller’s matter, the deal at Fox Lake.” That Miller had said that he should u come ” there as a messenger in order to explain matters; that Knight said, “ Here is a deed, which I am informed by Mr. Wagner has been lying in our office;” that Mr. Wagner had not then gotten his fees from Miller and wanted security therefor; that the deed had been held by him for the purpose of getting his fees; ” that he, Brougham, then said, “ Mr. Knight, are you talking from any personal knowledge?” To which Mr. Knight replied, “ No, I am not; all this I have been told, and from what I have been told, I believe it is true; ” that he, Brougham, then took the deed and looked at it, and found there were many defects in it; it was not dated and not stamped; that he, Brougham, then said, “ Mr. Knight, in the first place it seems to me here is a deed that is held up in your office by Mr. Wagner; there is a question whether it was ever delivered; in the second place I do not consider it a good deed at all. It does not possess the elements of a good deed. You are doubtless aware, in view of the law, a deed does not convey title until it is stamped, and is not entitled to be recorded. They would not consider this a good deed at all.” To which Knight replied, “ I noticed there several defects like that.” He, Brougham, then said, “ I could not advise Mr. Sollitt to take that deed; Mr. Knight, this is a matter that looks suspicious.” That Mr. Sollitt laid the matter before him, Brougham, and asked his opinion about it; that he told Sollitt that the circumstances were suspicious; that he would advise him, Sollitt, to see those people; that if they were honest, there was no question but they would assist him to fix up the title; that Mr. Knight said, “ I think upon payment of fees, we could deliver up the deed.” To which he, Brougham, replied, “ I do not consider this a deed; we would not accept it, because it is not a good deed in law, until it is entitled to be recorded.” To which Knight replied, “ I will admit this distinction.”</p> <p>At this conversation, Sollitt testified that Knight said that two dollars had been left with him for recording and stamping the deed; that after this conversation at the office of Knight, he went to Fortieth street and saw Mr. Bassett.</p> <p>It appears that when Mr. Sollitt went, after the conveyance to him of the “ Antlers,” to take possession, he found that a boat had been taken away, and he offered, but was not permitted by the court, to show that considerable other personal property which he claimed was purchased and paid for by him, had also been taken away, without his knowledge or consent.</p> <p>It appeared that Sollitt had instituted criminal proceedings against John W. Miller for fraudulently selling land after having sold the place to another party, and that he was in jail, at Waukegan, October 23d.</p> <p>Knight testified that at the conversation between him, Brougham and Sollitt, he said to them, “ I would like to hold the deed as a sort of security for the $30 balance due us. If it is a question of a man’s liberty, or my possession of the deed for $30 security, I will waive my security and you can have the deed.” That they did not take it and he brought it back.</p> <p>Appellee, Moore, having brought against Sollitt an action for slander, Sollitt filed a plea admitting the speaking of the words charged in the declaration and justifying the speaking of them by setting forth the circumstances of his discovery of the making and recording by Miller and wife of the deed to Moore, prior to the making by them of the deed to him, Sollitt. That upon him informing appellee of what he had discovered, he and Miller refused to make any explanation, but became very abusive and ordered him away from the property and out of the house. Also setting up the taking away from said.premises by Mr. and Mrs. Miller of a boat and certain other personal property claimed to have been purchased and paid for him, Sollitt.</p> <p>Upon the trial, the jury returned a verdict for the plaintiff for $10,000, from which the plaintiff remitted the sum of $8,000 and judgment against the defendant was entered for $2,000.</p>

<p>1. Practice—Court Will Not Modify a Former Conclusion upon Testimony of Witnesses Whiahislrreconeilably Inconsistent With What They Before Testified to.—Where, on a second trial of a case, the testimony of the witnesses is irreconcilably inconsistent with what they before testified to, and if disregarded there is no evidence in the case upon which to sustain a different conclusion, this court will not modify its former decision.</p>

<p>1. Master and Servant— What is Necessary to Make an Act Done the Servant’s and Not the Master's.—In order to make an act done by the servant the servant’s act alone, there must be a turning away from the master’s service and an entering upon an affair which concerns the servant only.</p> <p>2. Same—A Slight Deviation From a Direct Route, Whei'e Master Has Not Designated a Specific Route, Does Not Absolve Master.—Where a servant was sent to purchase and bring home material for the jnaster’s business and was given no specific directions as to route, the fact that he deviates one block from the direct route in returning does not constitute such a turning aside from pursuing the business of his employment as to absolve the master from liability.</p> <p>3. Instructions—The Question as to Whether the Servant Was or Was Not Acting in the Service of the Master, a Question of Fact.—An instruction to the jury that if they find from the evidence that at the time of the accident the driver of the wagon was not in the line of his duty and acting within the scope of his authority as the agent or employe of the defendant, the defendant can not be held liable, whatever may be their views as to the character of the conduct of the driver of the wagon, is correct, in view of the undisputed evidence in this case.</p>

Trespass on the Case, for obstructing access to lot. Appeal from the Circuit Court of Cook County: the Hon. George W. Brown, Judge presiding. Heard in this court at the March term, 1902. This is an action by appellee to recover for alleged injury to his business, charged in the declaration to have been caused by obstructing* access to his blacksmith shop, on a public alley.

<p>Appeal from the County Court of Cook County; the Hon. Orson H. Gilmore, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>Trespass on the Case, for loss of goods during transportation; Appeal from the County Court of Cook County; the Hon. William A. White-side, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>1. Solicitor’s Fees—Guardian ad Litem Gan 'Not Recover Against Complainant for Legal Services Under Oh. 22. Sec. 6, R. S.—Ch. 22, Sec. 6, B. S., allowing to a guardian ad litem a reasonable sum for his charges as such guardian, to be fixed by the court and taxed in the bill of costs, does not authorize the allowance of solicitor’s fees to be included as part of such costs.</p>

<p>1. Trover—Demand and Refusal Do Not Constitute a Conversion.— A demand and refusal do not of themselves constitute a conversion, but are only evidence of conversion, and they are only presumptive evidence capable of being rebutted by proof of any facts which constitute a legal justification or excuse for non-delivery.</p> <p>2. Same— What is a Wrongful Conversion.—Wrongful conversion consists in dealing with the property in a manner inconsistent with the right of the person who is entitled to the immediate possession and an intention in so doing to deny his right or to assert a dominion adverse to his right.</p> <p>3. Instructions—Essential Where it Directs a Verdict.—Where an instruction directs a verdict, it must state the conditions of such verdict correctly, and it must necessarily contain all the facts which will authorize the verdict directed.</p> <p>4. Same—Erroneous Instruction Directing a Verdict Can Not be Cured by Others.—An erroneous instruction directing a verdict can not be cured by other instructions in the series which supply the missing conditions.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the October term, 1902. Statement.—The declaration consists of one original and one additional count.

<p>1. Corporations—Power of University to' Purchase Notes and Mortgage Under Charter—Ultra Vires.— Under a charter granting the right “ to have, take, possess, acquire, purchase, or otherwise receive lands, tenements, hereditaments, goods, chattels, or ocher estates, to grant, demise, lease, use, manage, or improve, for the good and benefit of the said college, according to the tenor of donation and their discretion,” a university has the power to invest its funds, by purchasing notes, bonds and mortgages.</p>

Richard S. Tuthill, Judge presiding. Heard in this court at the October term, 1902. Judgment was rendered in justice court in favor of appellees and against appellant and one Joseph Silverman. An appeal was taken to the Circuit Court by appellant only. November 2, 1899, upon notice supported by affidavit, said cause was placed on the short cause calendar. December 9, 1899, the court entered an order striking said cause from the short cause calendar.

<p>1. Practice—Duty of Court Where Motion is-Made to Take the Case from the Jury>—When a motion to take the case from the jury is made, it is the duty of the court to see if there is evidence in the case which, with all its reasonable intendments and inferences, fairly tends to make out the plaintiff’s case. If there is, it is the duty of the court to submit the question to the jury.</p> <p>2. Same—Duty of Court upon Motion for a New Trial on the Ground that the Verdict is Not Justified by the Evidence.—When a motion for a new trial upon the ground that the verdict is not justified by the evidence is being considered, it is the duty of the court to determine whether or not the verdict is clearly against the weight of the evidence. If it is, he should grant the motion. If it is not, he should deny the motion.</p> <p>3. Verdict—When This Court Should Set it Aside.—It is the duty of this court to set aside a verdict and grant a new trial where the verdiet is so clearly against the weight of the evidence as to indicate passion or predjudice upon the part of the jury.</p> <p>4. Master and Servant—Servant Assumes Known and Ordinary Dangers.—An employe assumes all the known and ordinary dangers of his employment. If the danger is open and obvious, so that by the exercise of ordinary care in the use of machinery or in working with it, he will have knowledge of such danger, he is bound to take notice of it, and he will not be heard to say that he had not,such knowledge.</p> <p>5. Same—Servant Knowing Dangers Attendant upon Z?se of Machinery and Continuing in Service, Assumes the Risk.—Where the danger is inherent in the construction or use of the machinery, and plaintiff knew the construction of the machinery and the danger attendant upon its use, and continued in the service, he is deemed to have assumed the risks and to have waived all claims against the master for damages arising out of his personal injury.</p> <p>G. Pleading—Cause of Action Can Not he Founded on Defect Not Alleged in Declaration.—Where the declaration does not allege a defective or dangerous condition of an applianoe no cause of action can be founded upon such condition.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the October term, 1903.</p>

<p>Trespass on the Case, on promises. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in this court at the October term, 1902.</p>

Mandamus.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in this court at the October term, 1903. April 3, 1902, appellant filed a petition praying for a writ of mandamus commanding appellee, as comptroller of the city of Chicago, to reinstate petitioner as chief clerk in said comptroller’s office.

<p>Bill to Declare Void a Certificate of Sale.—Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Forfeitures—Right Must be Clearly and Unquestionably Established.—Forfeitures are not favored by the law, and when the right thereto is asserted, such right must be clearly and unquestionably established before the courts will enforce them.</p> <p>3. Same—For Failure to Comply With the Contract “As to Progress and Character of the Work Done."—Under a contract providing for a forfeiture in case o£ a failure to comply with the contract “ as to progress and character of the work done,’’ neither the one nor the other, separately, is cause for a declaration of forfeiture. The default must be as to both together.</p> <p>3. Practice—When a Case Should be Submitted to a Jury.—A case should be submitted to the jury if the evidence all considered, without reference to any question of conflict in it, is such that the jury could, without acting unreasonable in the eye of ithe law, have decided in favor of the plaintiff.</p> <p>4. Contracts—Prepared Solely by One of the Parties—Rule Contra Proferentem.—Where a contract is prepared solely by one of the parties, ambiguous phrases contained in it must be construed strictly against the party who prepared it.</p> <p>5. Sahib—To be Valid Must be Binding upon Both Parties.—A provision in a contract between a contractor and a corporation, whereby the decision of the latter's chief engineer, as to the rate of progress and character of the work, is made final and binding upon the contractor, but reserves the right in the corporation to reject his decision if his certificate as to the contractor’s compliance with the terms of the agreement was improperly given, is of no effect. A contract of this kind, to be valid, must be binding upon both the parties.</p> <p>6. Words and Phrases—Meaning of “Possible."—A contract contained the following provision:</p> <p>“ Provided, that only such work as building levees, changing river channels, grading roadbeds and other subsidiary work, where the necessary land has been acquired, shall be required of said contractor until it is possible to open the main excavation at the best point from which to execute the said work.”</p> <p>Held, that the word “possible” should be construed as meaning “ practicable.”</p>

<p>1. Corporations—Action May Be Brought Against Stockholder to Extent of Unpaid Balance upon His Stock.—An action against a corporation to recover an indebtedness may at the same time be brought against any stockholder of the corporation to the extent of the balance unpaid by such stockholder upon the stock owned by him.</p> <p>2. Same—Requisite Elements to Constitute a Corporation De Facto.— The requisite elements to constitute a corporation de facto are three: a general law under which a corporation, such as it purports to be, lawfully might organize; an attempt bona fide to organize thereunder; and actual user of the corporate franchise.</p> <p>3. Same—W7iaf Acts Can Be Relied Upon as User to Prove the Existence of a Corporation.—Where acts of user are relied upon to prove the existence of a corporation de facto they must be such as unequivocally indicate a corporation, and could not have been performed by a partnership or an individual.</p> <p>4. Same—When Unly the State Can Question the Legal Existence of a De Facto Corporation.—While it is a settled rule in this state that the legal existence of a corporation de facto can not be questioned collaterally, still the existence of the requisites necessary to constitute a corporation de facto must be shown.</p> <p>5. Instructions—That Certificate of Organization of Secretary of State is the Final Act to Perfect a Corporation de Facto Properly Refused.—An instruction that the issuance of the certificate of organization by the secretary of state is the final act to perfect a corporation defacto, is properly refused.</p>

<p>1. Chancery Practice—Where Bill is Amended Defendant Has a Right to Amend His Answer. —Where a complainant amends his bill the defendant has a right to answer the amended bill and he is not obliged to obtain leave to do so.</p> <p>3. Same—Insufficient Certificate as to the Record.—A certificate of the clerk of the Circuit Court certifying “ the above and foregoing to be a true, perfect and complete transcript of the record, except master’s report and testimony which, by stipulation and an order of court, were incorporated in transcript of the record heretofore filed in the Appellate Court, First District of Illinois, in a certain cause lately pending in said court on the chancery side thereof,” etc., has not that certainty which should exist as to a record brought to this court upon an appeal or writ of error.</p> <p>3. Practice—Clerk of Circuit Court is a Record Keeper Not a Record Maker.—The clerk of the Circuit Court can not by his certificate establish that the parties to a suit entered into a stipulation. The trial court must certify that the parties in open court made a certain agreement, setting the same forth, and the clerk then certifies to the order or finding of the court. Nor can the certificate of the clerk establish, nor is the clerk of the Circuit Court authorized to certify his conclusion that the court has made a certain order. The clerk may certify that certain papers were filed at a certain date, and that a certain order was made at a certain time, in each case setting forth, not his conclusion as to what the order was or the paper contained, but a copy of the paper or of the order.</p>

<p>1. Pbomissoby Notes— Giving One in Lieu of Another Does Not Necessarily Operate as a Payment.—The giving of one promissory note in lieu of another does not necessarily operate as a payment. In order to have that effect it must be so understood and intended by the parties.</p> <p>2. Payment—An Affirmative Defense.—Payment is an affirmative defense, and the burden of proving it is on the defendant.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>Attachment.—Appeal from the Circuit Court of Cook County; the Hon. Russell P. Goodwin, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. Practice—Error to Dismiss Suit Where There is a Declaration on File to Which One Defendant Has Not Pleaded or Demurred.—It is error to dismiss a suit where a declaration is on file to which there is no plea or demurrer filed by one defendant, and with a demurrer by another in part undisposed of.</p>

<p>Intervening Petition, for an equitable attachment. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in the Branch Appellate Court at the March term. 1902.</p>

Trespass upon the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>1. Cycling—Cycles Are Vehicles.—Cycles of every kind are vehicles and subject to the law of vehicles, as far as reasonably applicable.'</p> <p>2. Streets—Liability in Taking .the Wrong Side of the Street.— In taking the wrong side of the street, one takes the risk of consequences which may arise from his inability to get out of the way of a vehicle or tandem on the right side of the street, and is responsible for injuries sustained by the latter while exercising clue care.</p>

<p>Bilí to Foreclose a Mortgage.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. The facts in this case are sufficiently stated in the report of the same cause in 70 Ill. App. 91, 176 Ill. 330, and 97 Ill. App. 668. The case is now here for the third time.

<p>1. Evidence—Accounts Between Merchant and Customer Kept in Passbook.—Where the accounts between a merchant and customer are kept in a book in the customer’s possession, except at the end of each month, when it was taken to the merchant’s place of business to be balanced, and the customer acquiesces in the condition of his account, as shown therein, for a long period, his action tends to establish an admission of its correctness.</p> <p>2. Instructions—That Errors Made by a Customer in a Statement Between a Merchant and Himself Bender Statement Not Binding upon Customer, is Erroneous.—An instruction which in effect tells the jury that, in a long series of settlements in which the balance had been stated each time, if one party commits intentional error, then such accounting is not binding upon the party committing it, is erroneous.</p>

<p>Appeal from the Superior Court of Cook County: the Hon. Joseph E. Gary, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. Real Estate Brokers— When Entitled to Commissions.— Before a broker is entitled to commissions he must furnish a purchaser who is ready, willing and able to complete the purchase on the terms proposed.-</p> <p>2. Bill of Exceptions— Where it Fails to State That it Contains All the Evidence Introduced on the Trial.—Where the bill fails to state that it contains all the evidence introduced on the trial in the trial court, this court can not inquire whether the verdict is supported by the evidence, but it must be presumed that it is.</p> <p>3. Instructions—Erroneous Instructions Will Not Always Reverse. —Although an instruction given for the plaintiff does not accurately state the law, it will not work a reversal unless this court can see that some injury has resulted therefrom to the defendant.</p>

<p>1. Foreclosure—Solicitor’s Fees.—The court having considered the evidence are of the opinion that the decree was just and equitable and is fully sustained by the testimony taken before the master.</p>

<p>Bill to Foreclose a Trust Deed.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. Master and Servant—Servant Can Not Recover for an Injury Which is the Result of Mere Accident.—A servant can not recover for injuries inflicted upon him by reason of his accidently setting a machine into operation while being examined for the purpose of adjustment.</p>

<p>Bill to Foreclose a Mortgage.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. Ordinary Care—Whether Plaintiff Under the Circumstances Exercised Ordinary Care is a Question of Fact.—Whether, under the circumstances, plaintiff exercised ordinary care in driving astride a rail of the defendant’s street railway, without looking back or endeavoring to ascertain how néar to him the car was, is a question of fact for the jtiry.</p> <p>3. Instructions—That Certain Facts Do Not Amount to a Failure to Exercise Due Care, Erroneous.—An instruction which is equivalent to a statement by the court that though the jury might believe that the plaintiff had done and omitted to do all mentioned in the instruction, such conduct did not amount to a failure to exercise ordinary care, is reversible error.</p>

<p>1. Instructions—That Effect of Injury and Bodily Pain May Be Considered in Estimating Damages is Proper.—An instruction that if under the evidence and instructions of the court the jury find the defendant guilty, then in estimating the plaintiff’s damages, if any, it will be proper for the jury to consider the effect, if any, of the injury upon the plaintiff, and also the bodily pain and suffering, if any, she sustained, and all damages, if any, charged in the declaration and which from the evidence are shown to be the necessary and direct result of the injury complained of, is proper.</p> <p>2. Carriers of Passengers—Presumption of Negligence Where an Accident Happens to Passenger.—When an accident happens to a passenger upon a railway by the running of the train, the spreading or breaking of the rails, or because of a collision- between two trains operated by the company whose passenger the injured person is, a presumption of negligence by the carrier arises.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p> <p>This is a bill seeking to restrain appellant by injunction from using a trade-mark or label, which it is alleged “ so nearly imitates and resembles the label of the International Typographical Union as to deceive and defraud those who are intending to and desirous of obtaining the products of the members” of the said union. It is further charged that the products of the appellant corporation are inferior in quality to those of appellee and his associates, and that appellant is using the label sought to be restrained “ to bring discredit upon ” appellee and “ deceive and defraud the public.”</p> <p>The answer admits that the bill is properly filed by appellee on his own behalf and that of all other members of the International Typographical Union, which is a voluntary, unincorporated association with several thousand members; that for the purpose of designating the product of the labor of members -of said association, it adopted a label as set forth in the bill of complaint, which said trade-mark has been extensively used by them, and was properly registered with the secretary of state.</p> <p>The answer states that appellant is incorporated, that its objects are the formation of a union of the smaller printers who do a job business, the having a label to designate their work, to better their condition, promote mutual interests and afford assistance to each other; that said corporation adopted a label, a copy of which is attached to complainant’s bill, and which is being used and displayed on printed matter issued and published by members of the appellant corporation; denies that appellant’s label is a counterfeit or imitation of the label of complainant; that it was intended to be such or to defraud members of appellee’s association; that the quality of the latter’s products is superior to appellant’s; that persons to whom appellant issued its label were such as could not comply with the rules and laws of appellee’s association, and alleges that said rules were arbitrary and unjust, tending to forestall and increase prices of printing; and denies that appellant is using its label to bring discredit upon complainant- or those claiming through him. It is further set up in the answer that appellant’s label “ in no way, manner or form, can be considered a counterfeit or imitation of complainant’s label; that the words, arrangement and design are different, and that since the beginning of the suit appellant has caused its label to be registered with the secretary of state under an act to protect associations, unions and persons in their labels, trade-marks and forms of advertising, under which complainant’s label is also registered. (R. S., Chap. 140, Sec. 8.)</p>

Bill for Separate Maintenance.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in this court at the October term, 1903. Appellant filed a bill for separate maintenance and to set aside certain conveyances made by appellee Wilhelm Giese to his daughter. The parties were married October 25, 1900, and lived together until March 2,1901, when she left appellee Wilhelm Giese.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Russell P. Goodwin, Judge presiding. Heard in this court at the October term. 1902.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the October term, 1902.

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding. Heard in this court at the October term, 1903.</p>