Volume 111 — Illinois Appellate Court Reports

Action to recover damages for the killing of stock. Appeal from the County Court of Will County; the Hon. Dwight C. Haven, Judge, presiding. Heard in this court at the April term, 1903.

<p>1. Form of action—how determined. The form of action is tobe determined from an examination of the declaration filed in the cause.</p> <p>2. Contract—when made by an agent. When a contract is made for the principal by his agent, it is that of the principal, and where the fact of agency is known to the party with whom the contract is made and the agent acts within the scope of his authority, such agent incurs no personal responsibility.</p> <p>3. Dismissal of suit—effect of, at law. The dismissal of an action at law does not bar another suit for the same cause of action.</p> <p>4. Dismissal without prejudice— not recognized at law. A dismissal without prejudice is a practice not proper at law.</p> <p>5. Remandiient—when ordered. A cause will be remanded where it appears from the record that the plaintiff may have a right of action against the defendant and to reverse without remanding might produce complications.</p>

<p>Proceeding for mechanics’ lien. Error to the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the April term, 1903.</p>

Bill in equity, seeking to redeem from an alleged constructive mortgage. Appeal from the Circuit Court of Kane County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the April term, 1903.

<p>Action of assumpsit. Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the April term, 1903.</p>

<p>1. Rules of trial court—when regarded on appeal. The rules of the trial court will not be regarded on appeal, unless they are before the court in the particular record involved.</p> <p>2. Record—effect of clerics recitals in. The recital of the clerk that a particular day was the second day of the term does not control. (See reporters’ note at conclusion of case.)</p> <p>8. Irregularities—what cured after default. After the entry of a default which is permitted to stand by the defendant without motion to set it aside, a lack of entire identity between the name of the plaintiff, as contained in the process, default and judgment, and as c mtained in the declaration, will be cured.</p> <p>Reporters’ Note.—Rules of court are not judicially noticed. Kessel v. O’Sullivan, GO Ill. App. 548. Their existence must be proved by the record thereof. Roby v. Title Guarantee and Trust Co., 166 Ill. 338; Davis v. The Northwestern Elevated R. R. Co., 170 Ill. 595. Their non-existence must be proved by the testimony of the clerk. Hughes v. Humphreys, 103 Ill. App. 194. Rules of court may be adopted by the joint act of the judges. Gage v. Eddy, 167 Ill. 103. When properly adopted and entered of record they become laws of procedure which the adopting court is bound to obey. Gage v. Eddy, 167 Ill. 103; Klinesmith v. Van Bramer, 104 Ill. App. 384.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Kane County: the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the April term, 1903.</p>

<p>Action of trespass. Appeal from the Circuit Court of Livingston County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the April term, 1903.</p>

<p>Action of assumpsit. Appeal from the County Court of DeKalb County; the Hon. William C. De Wolf, Judge presiding. Heard in tnis court at the April term, 1903.</p>

<p>1. Fellow-servants—who are not. Servants engaged in placing empty cars upon a track to be loaded by the plaintiff are not, while performing such work, felloxv-servants of the plaintiff, where the common master had, by virtue of contract with the plaintiff, obligated itself so to place such cars; and this notwithstanding such servants were ordinarily engaged with the plaintiff in the same general line of employment. '</p> <p>2. Fellow-servants—what not within the doctrine of. A master can not delegate duties imposed by law or assumed by contract, and escape liability under the doctrine of fellow-servants.</p> <p>3. Negligence—when recovery must be for common-law. Where a declaration counts upon negligence as at common law, recovery must not be sought upon the theory of statutory negligence.</p> <p>4. Instruction—ivlien error in, is cured. A misstatement of the theory upon which the plaintiff is entitled to recover may sometimes be cured by a correct statement contained in another instruction; and this is especially true where there is small dispute as to the facts.</p> <p>5. Verdict—ivhen not excessive. A verdict of $1,750 is not-excessive where the plaintiff, a coal miner, was, at the time of his injury, earning $2 per day, was permanently and seriously injured and has in consequence been continuously unable to follow his occupation.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the April term, 1903.</p>

<p>Action for deceit. Appeal from Circuit Court of Whiteside County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the April term, 1903.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of LaSalle County; the Hon. Samuel C. Stough, Judge, presid- ing. Heard in this court at the April term, 1903.

<p>' 1. Contiguous—what property is. An entire piece of real estate is deemed contiguous to a railroad right of way if it abuts the same, notwithstanding such piece of real estate may appear upon a plat to have been subdivided.</p> <p>2. Abutting property owner—right of, to recover for construction and operation of railroad. Notwithstanding a railroad may have been built and is operated by authority of law, an abutting property owner may recover for injury to his property without proof of negligence.</p> <p>3. Measure of damages—in action for injury to real property arising from the construction and operation of a railroad. Measure of damages in an action brought by an abutting property owner against a ' railroad company for damages arising from the construction and operation of a railroad, is the same as that which prevails in condemnation cases and includes damage resulting from noise, vibration, danger from fire, etc., but does not include the danger that adults or children may be killed while upon the tracks. (Aldrich v. Metropolitan West Side R. R. Co., 195 Ill. 456, distinguished.)</p> <p>4. Measure of damages—in action for injury to real property arising from the construction and operation of a railroad. It is well settled that damage common to the public does not form a proper element of such m.easure, but if the construction and operation of a railroad causes cinders, ashes and sparks of fire to be cast upon and into a plaintiff’s houses, previously erected on his contiguous land, and dams water back upon it, and thereby the value of his property is depreciated, it cannot be said that such damages are suffered by the public generally, merely because some other land owner, similarly situated in an adjoining block, may suffer similar injuries from cinders, ashes, fire and water.</p> <p>5. Measure of damages—in action for injury to real property arising from the construction and operation of a railroad. The correct rule as to the measure of damages in such a case is the difference between the fair cash market value of the property immediately before and immediately after the railroad was constructed and put in operation, so far as its change in value, if any, is due to the construction and operation of the road.</p>

<p>Action of replevin by chattel mortgagee. Appeal from the Circuit Court of Stephenson County; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1903.</p>

<p>Bill for accounting. Error to the Circuit Court of Stephenson County; the Hon. James S. Baume, Judge, presiding. Heard in this court at the April term, 1903.</p>

<p>1. Benefit certificate—when divorced wife is entitled to the proceeds of. A divorced wife of a member of a fraternal benefit society, in whose favor such certificate was, prior to such divorce, issued, is entitled to the proceeds of such certificate where, after such divorce, she remains a person dependent upon such member.</p> <p>2. Person dependent—definition of. The words, “ persons dependent upon the member,” as used in the statute pertaining to beneficiaries under benefit certificates, do not mean dependence for favor, companionship or affection, nor do they refer to occasional gifts nor to complete dependence for support; but a person who is partially and regularly dependent upon such member fur support comes within the statute.</p>

Bill to restrain collection of judgment at law. Appeal from the City Court of Aurora; the Hon. John L. Healey, Judge, presiding. Heard in this court at the April term, 1903.

Contest over distributive share in deceased estate. Appeal from the Circuit Court of Carroll County; the Hon. James S. Baume, Judge, presiding. Heard in this court at the April term, 1903.

<p>Mechanics’ lien proceeding. Error to the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1903.</p>

Criminal prosecution for dealing in margins. Appeal from the Circuit Court of Bureau County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the April term, 1903.

<p>Bill to declare deed a mortgage. Appeal from the Circuit Court of LaSalle County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1903.</p>

Action of assumpsit upon a policy of insurance. Appeal from the Circuit Court of Calhoun County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1908.

Assumpsit, for alleged conversion of crops. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1903.

Trespass on the case alleging excessive levies. Appeal from the Circuit Court of Vermillion County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the May term, 1903.

Trespass on the case, for alleged wrongful ejection from railroad train. Appeal from the Circuit Court of Vermillion County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the May term, 1903.

<p>Assumpsit for breach of contract. Appeal from the Circuit Court of Tazewell County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the May term, 1903.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term* 1903.

Petition to set aside allowance of widow's award, Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Sellar, Judge, presiding. Heard in this court at the November term, 1902.

<p>1. Corporations—when organization of, complete. The organization of a corporation is complete for all purposes connected with the collection of subscriptions to its capital stock, when its entire capitalization has been unconditionally subscribed; nor is it material whether a portion of such stock has been issued without consideration. (See reporters’ note at conclusion of opinion.)</p> <p>2. Corporations—cordracts among promoters of. A preliminary agreement made at a meeting of promoters, by which several of their number subscribe to stock of the corporation in process of organization upon condition that payment therefor be made by the transfer of a certain franchise, is not binding upon such corporation when organized.</p> <p>3. Stock subscriptions—incompetency of parol evidence to vary. Parol evidence is incompetent to show that stock subscriptions, on their face unconditional, were, in fact, conditional.</p> <p>Reporters’ Note.—For some purposes, however, the organization of a corporation is not complete until its charter has been filed for record. Curtis v. Tracy, 169 Ill. 238; Edwards v. Armour Packing Co., 190 Ill. 467.</p>

<p>1. Benefit certificate—when action upon,' should be brought. Where the contract of insurance provides that action must be brought thereon within a certain period after the rejection of a claim thereunder, notice of rejection must be given by the society to the claimant before such period begins to run.</p> <p>2. Rejection of claim— what not notice of. Notice of rejection given to the local secretary of the society is not notice to the claimant, notwithstanding proofs of loss may have been forwarded through such secretary.</p> <p>3. Subordinate lodge—when agent of principal organization. The subordinate lodge is the agent of the society and not of the claimant, notwithstanding proofs of loss may have been forwarded through its secretary.</p> <p>4. Condition of health—proof of. Non-expert witnesses who have had sufficient opportunities for observation are competent to testify as to the condition of health of a particular person.</p> <p>5. Opening statement of counsel—when improper. It is unprofessional and ground for reversal to call attention in an opening statement to collateral matters calculated to prejudice the jury; nor does the sustaining of objections to such improper statements repair the injury.</p> <p>6. Conduct of counsel—impropriety in the, in ashing improper questions. It is unprofessional and ground for new trial to seek, upon the examination of witnesses, by suggestive questions to get collateral matters before the jury; nor does the sustaining of objections to such questions repair the injury.</p>

Action on the case for causing death of a horse. Appeal from the Circuit Court of Menard County; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term. 1903.

Action on the case for personal injuries. Error to the Circuit Court ot Macon County: the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1903.

Action of assumpsit upon party-wall contract. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1903.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Champaign County; the Hon. Soi.on Philbrick. Judge, presiding. Heard in this court at the May term, 1903.

<p>1. Life estates—right to create, in personalty. A life estate in personal property may be created by will and the res placed beyond the reach of creditors of the legatee.</p> <p>3. Life estates—where coupled with power of disposition. Where a power to dispose of a life estate is given by the will creating it, such power is only eo-extensive with the interest of the donee unless the contrary appears.</p> <p>3. Purchaser with notice—rights of. A,purchaser of personal property from a life tenant holding the same takes only the interest which such life tenant had a right to convey, where such purchaser had notice of the extent of the rights of his vendor in the property conveyed.</p> <p>4. Laches—«often, doctrine of, applies. The defense of laches is applicable only when a person has delayed so long after his right attaches before asserting his claim as to raise a presumption of abandonment.</p> <p>5. Limitations—running of statute of. The statute of limitations does not begin to run against a reversioner until the expiration of the intermediate estate. "</p> <p>6. Bill of interpleader—right to maintain. A bill of interpleader lies where a bank has stock in its possession in which it claims no interest and which is claimed by several different persons, all of whom are threatening the bank with litigation.</p> <p>7. Bill of interpleader—costs of. The party who has wrongfully asserted claims to the subject-matter of a bill of interpleader, is properly taxed wit!) the costs thereof.</p> <p>8. Ratification—construciion of. Where a remainder-man has, ' subsequent to the sale of the corpus of a life estate, signed a writing in which it is stated that such sale is approved, such approval extends only to such a sale as the life tenant had a right to make.</p>

<p>Action on benefit certificate. Appeal from the Circuit Court of Cass County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>Bill to foreclose. Appeal from and error to the Circuit Court of • Montgomery County; the Hon. William Farmer, Judge, presiding. Heard in this court at the May term, 1903,</p>

<p>1. Remarks of counsel—hoio preserved. Remarks of counsel complained of as improper cannot be preserved for review by means of ex parte affidavits; a bill of exceptions is necessary.</p> <p>2. Verdict—when excessive. A verdict for §8,000, in an action alleging the violation of the act providing that foreign corporations before doing business in the state must obtain a permit so to do, is excessive where business was done for but a short period.</p>

<p>Action on benefit certificate. Error to the Circuit Court of De Witt County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>Action of debt. Appeal from the Circuit Court of Coles County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>Action of replevin. Appeal from the City Court of the City of Mattoon; the Hon, Lapsley C. Henly, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>Action under Dram-Shop Act. Appeal from the Circuit Court of Calhoun County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>1. Judgment—token a, contrary to lato toill not be disturbed. A party cannot complain of a judgment upon the ground that it is contrary to law if he has caused an issue to be submitted to the jury, which the jury were justified in finding against him.</p>

<p>Petition for mandamus against drainage district. Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the Mav term, 1908.</p>

Action to recover damages for fire communicated from locomotive. Appeal from the Circuit Court of Tazewell County; the Hon. Nicholas E. Worthington, Judge, presiding.- Heard in this court at the November term, 1902.

<p>1. Instructions—credibility of toitnesses. An instruction is erroneous which tells the jury that they may disregard the testimony of witnesses who have knowingly testified falsely, regardless of whether or not such false testimony related to a material issue in the case.</p> <p>2. Instructions—credibility of witnesses. An instruction is erroneous which tells the jury that they may disregard the testimony of witnesses who have knowingly testified untruthfully unless such witnesses are “ corroborated by other credible witnesses.” Corroboration by a single witness might be sufficient.</p>

<p>Action of debt to recover penalty. Error to the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>1. Passenger and carrier—wjiat essential to allegation of relation of. It is not necessary in an action on the case for personal injuries, to allege payment of fare by the former to the latter, in order to show such relation.</p> <p>2. Passenger and carrier —when relation of, exists. The relation of passenger and carrier may exist, notwithstanding the person claiming to be a passenger has neither paid fare nor provided himself, or herself, with a ticket, since it cannot be presumed at law that a demand by the carrier for the payment of fare would not be complied with.</p> <p>3. Contributory negligence—token passenger is not guilty of. Held, in this case from its particular facts, that contributory negligence was not shown, where the injuries resulted from the sliding down of a window of a railroad car.</p> <p>A Contributory negligence—when children may he guilty of. Children up to the age of seven years are, as a matter of law, incapable of being guilty of contributory negligence; after that age, they are capable of being guilty of contributory negligence, but whether in any particular case they have been guilty of contributoiy negligence, is a question of fact to be determined by the jury.</p> <p>5. Instructions—must not ignore defense. Instructions which ignore the defense of contributory negligence, are erroneous.</p> <p>6. Instructions—must limit right of recovery to negligence charged. Instructions are erroneous which fail to limit the right of recovery to the negligence charged in the declaration.</p> <p>7. Carriers—degree of care required of. Instructions which undertake to define the degree of care required to be exercised by carriers toward their passengers, must not omit tiie qualification that such care is such as is practically consistent with the efficient use of the mode of transportation adopted.</p>

<p>Action of trover. Appeal from the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>1. Wills—how to he construed. Courts in construing wills should consider their whole scope and plan, giving effect to all their parts, and comparing their various provisions with one another.</p> <p>2. Intestacy—presumption against. The presumption is that a testatrix intended to dispose of her entire estate and not to die intestate as to any part thereof, unless such legal presumption is clearly rebutted by the provisions of her will, or by evidence to the contrary.</p> <p>3. Equity—rule of, lohere will directs the change of real to personal property. A direction in a will to change real into personal property, has the effect, in equity, to change the legal character at once, and the will should be construed as though a bequest of personal property, only, was made.</p> <p>4. Equity—jurisdiction of, to construe will. Equity has no jurisdiction to construe a will unless a trust is involved.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Shelby County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the May term, 1903.

<p>Action of debt to recover statutory penalty. Appeal from the Circuit Court of McDonough Cofmty; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>1. Homestead—what essential to show. In order to show that a homestead exists, within the meaning of section one of the Homestead Act, three things must concur: (1) the person claiming the estate must be a householder; (2) such person must have a family; and (3) the premises claimed must be occupied as a residence.</p> <p>2, Householder—who is a. A person to be a householder, within the meaning of section one of the Homestead Act. must have a family residing with him and the person or persons constituting such family must be a person or persons whom the householder is under some legal or moral obligation to support, and there must likewise be a corresponding dependence by such person or persons upon such householder. A minor nephew whom such householder has voluntarily assumed the obligation to support and has supported, is such a person, notwithstanding such nephew has a father living, physically able and legally responsible for his support.</p>

Action on the case for causing the death of plaintiff’s intestate. Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1903.

Action to recover damages occasioned by hogs breaking into plaintiff’s close. Appeal from the Circuit .Court of Edgar County; the Hon. Henry Van Sellar, Judge, presiding. Heard in this court at the May term, 1903.

Action of assumpsit to recover real estate commissions. Appeal from the Circuit Court of Greene County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1903.

Bill for an accounting between tenants in common. Appeal from the Circuit Court of Vermilion County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1903.

Action of assumpsit upon insurance policy. Appeal from the Circuit Court of Vermilion County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the November term, 1902.

Petition by wife to modify decree fixing alimony because of coercion, fraud and concealment, which induced her consent thereto. Appeal from the Circuit Court of Sangamon County; the Hon. Owen P. Thomp- son, Judge, presiding. Heard in this court at the May term, 1903.

<p>1. Demurrer—when error in overruling, is waived. An error in overruling a demurrer to a declaration is waived by having pleaded to the merits, unless the declaration is so defective that it will not sustain the judgment.</p> <p>3. Assumed risk—what is not an. Notwithstanding it is dangerous to undertake to work in a pit under a railroad track, yet it does not necessarily follow that one who goes therein, who is inexperienced and unaware of the dangers of his employment, in obedience to his' master’s command, thereby assumes the risk.</p> <p>3. Assumed risks—what are. A servant assumes only such incident risks as are usual and ordinary and which remain so incident after he has used reasonable care to remove them, or if the risks are extraordinary, he assumes only such as were obvious and exposed him to danger so imminent that an ordinarily prudent person would not have remained in the employment.</p> <p>4. Assumed risks—how determined. Whether particular perils are obvious and whether the risk thereof has been assumed by the servant, are questions of fact for the determination of the jury, and these questions become only ones of law when the evidence is such that but one conclusion could be reached by all reasonable minds.</p> <p>5. Obedience—how far, protects servant suing his master for personal injuries. Even if a servant had some knowledge of the dangers attendant upon the work which he was ordered to perform, he was not bound to disobey on pain of assuming the risk, but may perform the service and hold his employer liable, unless the danger or risk was such that an ordinarily prudent person would not encounter it.</p> <p>6. Safe place to work—when master liable for failure to furnish a. When a servant whose employment required him to work in a pit under a railroad track seeks to recover for personal injuries occasioned by being struck by a train on said track, which approached without notice or warning to him, he must allege and prove a want of knowledge on his part of the facts which rendered the place dangerous.</p> <p>7. Servant—right to presume caution upon the part of Ms master. A servant has the right to presume that all proper attention will be given to his safety by his master, and that he will not be needlessly exposed to risks not necessarily resulting from his occupation, and which might be obviated by proper caution on the part of his master.</p> <p>8. Bules—master’s duty to adopt. Where rules are required for the safety of his servant, it is negligence for a master to fail to adopt them.</p> <p>9. Contributory negligence—Amo determined. The question whether a plaintiff was guilty of contributory negligence, is one of fact for the jury.</p> <p>10. Fellow-servants—when the doctrine of, is not a defense. The doctrine of fellow-servants does not apply, and is not a defense to an action for personal injuries arising from the neglect by the master of one of his personal non-delegable duties: and this is true notwithstanding the negligence of a fellow-servant contributed to the injury, if such negligence of the master was the efficient cause of the injury.</p> <p>11. Instructions—should not assume facts in dispute. An instruction is properly refused which assumes the existence of facts in dispute.</p> <p>12. Instructions—should be based upon the evidence. Instructions are properly refused which are not predicated upon the evidence.</p> <p>13. Special interrogatories—should relate to ultimate facts. Special interrogatories are properly refused which ask the jury to pass upon the evidentiary, and not ultimate facts.</p> <p>14. Verdict—when not excessive. A verdict for $1,250 is not excessive where the plaintiff, as a result of the accident, lost three of the fingers of one hand and the remaining fingers of such hand are rendered of little use, notwithstanding his earning power does not appear to have been impaired; the fact that many occupations requiring the use of his hands are forever closed to him, must be taken into consideration.</p>

<p>1. Hypothetical question—how to be objected to. An objection to a hypothetical question, upon the ground that it does not contain all the elements upon which a witness should base his opinion, should specifically point out the omission or omissions in order to avail upon appeal.</p> <p>2. Motion to take case from jury—what questions raised by. A motion to take a case from the jury, made at the close of the plaintiff’s case, or at the close of all of the evidence, presents the naked legal question as to whether or not there is any evidence in the record fairly tending to support the plaintiff’s cause of action, but it never raises a question as to the weight of the evidence.</p> <p>3. Safe place to work—knowledge of the master with respect to. A master is presumed to know of the unsafe conditions surrounding the. place where his servants are placed at work, but whether such dangers are known to the servant, and whether they assume the attendant risks, are questions of fact to be submitted to the jury.</p> <p>4. Assumed risks—what are not. A servant does not assume risks not ordinarily connected with his service and which arise from the failure of the master to exercise reasonable care.</p> <p>5. Wilful violation—what is a, of a statutory duty. Any conscious omission or failure to comply with a statutory duty provided for the protection of persons employed in mines, is a wilful violation.</p> <p>6. Wilful violations—what are. of statutory duties. The failure of a mine owner, with notice, to remedy defective conditions in a mine, the neglect of the mine examiner to report unsafe conditions, to mark the places, and make a report thereof, are conscious omissions, and, therefore, wilful violations of the Mining Act of this state.</p> <p>7. Notice—what is, to a mine oimer, of defective conditions. Notice toa mine manager and to a mine examiner, or to either of them, is notice to a mine owner.</p> <p>8. Contributory negligence—when not a defense. Contributory negligence upon the part of an employee of a mine is not a defense to an action for personal injuries brought by him, based upon a wilful violation by the mine owner of the duties imposed by statute.</p> <p>9. Verdict—when not excessive. A verdict for $5,000 is not excessive, where the evidence tends to show that the plaintiff was burned on his hips, hand and face; that all the skin on his forehead, and from his forehead to his chin, came off; that he remained in a hospital under a doctor’s care for about six weeks; that since the accident, he has had no strength in his hands and cannot shut them; that his bones are sore; that his eyesight is impaired so that he reads with difficulty; that his hands continually sting and the scar on his face burns and itches; that during the healing process, his pain was severe, and that he has, ever since the accident, been incapacitated to work.</p> <p>10. Judgment—when not excessive. A- judgment for $1.500 is not excessive where the evidence tends to show that the plaintiff was burned on his hands, face and left ear; that he has suffered facial disfigurement; that the grip of his hands is gone and their use otherwise impaired; that he was in a hospital under a doctor’s care for about three weeks; that he suffered pain, and that his disability is permanent.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1903.

<p>1. Custom—what evidence sufficient to establish. A custom upon which a party relies as part of his contract of employment, must be established as so certain, continuous, uniform, well-known, and of such long standing, that it .can be said that the parties contracted with respect thereto.</p>

Action upon a life insurance policy. Appeal from the Circuit Court of Cass County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the November term, 1903.

<p>1. Termination of Lease—when destruction of demised premises does not effect a. Where one leases land on which there is a building and the building is destroyed by fire, without the fault of either party, such destruction of the building will not, in the absence of a covenant in the lease compelling the landlord to rebuild, terminate such lease or release the tenant from his obligation to pay rent for the remainder of the term.</p>

Action of assumpsit on benefit certificate. Error to the Circuit Courtof Vermilion County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the May term, 1903. Judgment modified by taxing costs of this court against appellee.

<p>1. Instructions—pettier of court to limit number of. It is error for the trial court to restrict the parties to a cause to the presentation of any particular number of instructions, and such error is prejudicial where it forces a party to so draft the instructions which he does present, as to render them confused, misleading, argumentative, or otherwise open to criticism.</p> <p>2. Warranty—what does not waive a. The acceptance of merchandise which has been warranted, does not waive the right to interpose the defense of a breach of warranty, in an action brought for the purchase price of such merchandise.</p>

Action on the case against a railroad company to recover damages to personal property for allowing smoke, etc., to escape from its premises. Appeal from the Circuit Court of Champaign County; the Hon. Solon i Philbrick, Judge, presiding. Heard in this court at the May term, 1903.

<p>1. Wife—when the testimony of a, is not incompetent. A wife is competent as a witness in a suit where the husband’s interest in the resul t thereof is not direct, in the sense that he will not gain or lose by the direct legal operation or effect of the judgment, and where the record will not be legal evidence for or against him in some other action.</p> <p>2. Agency— how proved. While, proof of agency cannot be made by the showing or declarations of an agent, yet such agent may take the stand and testify to such facts and circumstances which show his agency.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the City Court of Mattoon, Illinois; the Hon. Lapsley C. Henly. Judge, presiding. Heard in this court at the May term, 1903.

<p>1, Measure of damages— in an action for damages for failure of a lessor to give possession of demised premises.—The measure of damages in such a case is the market value of such a leasehold interest; not how-much any person might imagine could have been made from its enjoyment.</p>

<p>Action of replevin. Appeal from the County Court of Jersey County; the Hon. Chables S. White, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>Action to recover statutory penalty. Error to the Circuit Court of Edgar County; the Hon. Henry Van Sellar, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>Action of assumpsit. Error to the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>1. Ordinary care—when essential to prove exercise of, in an action by a servant against his master to recover for personal injuries sustained by him while working in a mine. It is essential that the plaintiff under a count charging common law negligence, should allege and prove exercise of ordinary care; where, however, the count is based upon allegations of statutory negligence, averment and proof of the exercise of ordinary care is not essential.-</p> <p>2. Ordinary care—exercise of, when a question of fact. Where the evidence is conflicting, the jury are the judges of the credibility of the witnesses and as to whether ordinary care has been exercised.</p> <p>3. Rule—when a, governing the movements of miners employed in a mine is unreasonable. Such a rule is unreasonable where it forbids the miners from leaving a particular portion of the mine at a particular hour for'any reason whatever.</p> <p>4. Rule—when a, is in contravention of statute. A rule promulgated by a mining company, forbidding miners from leaving a particular portion of the mine at a particular hour, is contrary to the statute, in so far as it may forbid a miner from leaving the mine when he has been prevented from doing further work.</p> <p>5. Rule—when disobedience of a rule is not wilful. Wilful disobedience of a rule forbidding miners employed in a mine from leaving a particular portion thereof at a particular time, is not established where a miner left contrary to such rule because of his sickness.</p> <p>6. Contributory negligence—when a person placing himself in danger is not guilty of. Where one, without his own fault, is, through the negligence of another, put in such apparent danger as to cause him terror, loss of self-possession and bewilderment, and, as a natural consequence thereof, he, in attempting to escape, puts himself in a more dangerous position, he is not, as a matter of law, chargeable with contributory negligence.</p> <p>7. Mining companies—obligations of, to protect employees. Mining companies are obligated to observe not only the duties imposed by statute but those which exist by virtue of the common law.</p> <p>8. Proximate cause—by whom to be determined. The question as to what is the proximate cause of the injury is, ordinarily, a question of fact to be determined by the jury.</p> <p>9. Mine entry—tobe», is not shown to be in “safe” condition. Evidence to the effect that a mine entry was in “ fair ” condition, does not establish that its condition was “ safe.”</p> <p>10. Special findings—power of court to instruct as to. There is no rule of law and no practice which requires the court to instruct the jury to specify in their general verdict under what count or counts of the declaration the same is returned. This information can only be obtained by resort to the statute authorizing the submission of special findings or interrogatories.</p> <p>11. Instructions—when failure of plaintiffs, to refer to particular counts in the declaration is not misleading. The failure of the plaintiff’s instructions to refer specifically to each count of the declaration, is not misleading, where the defendant’s given instructions refer in detail to the elements essential to be proved to sustain each of the different counts of the declaration.</p>

Action on the case alleging death for wrongful act. Appeal from the Circuit Court of Ford County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the May term, 1903. .

<p>1. Common counts—when recovery may be had under the. The value of medical services rendered to one coming within the statutory definition of a pauper, may be recovered from the county under the common counts, where it appears that such county duly requested the rendition of such services.</p> <p>2. Peremptory instruction—when proper, for plaintiff. A peremptory instruction can only be given for the plaintiff when the plaintiff is entitled to a verdict under the evidence and there is no evidence to warrant a verdict for the defense.</p>

<p>Action on the case. Appeal from the Circuit Court of Shelby County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the May term, 1903.</p>

<p>Action on the case for deceit. Error to the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the May term, 1908.</p>

Intervening petition filed against a receiver to recover goods alleged to have been consigned. Appeal by petitioner from the City Court of Mattoon, Illinois; the Hon. Lapsley C. Henly, Judge, presiding. Heard in this court at the May term, 1903.

<p>Appeal from order requiring partial distribution of the funds of an estate. Appeal from the Circuit Court of Douglas County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1903.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1903.

Action of trespass for the wrongful taking of personal property. Appeal from the Circuit Court of DeWitt County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1903.

Action on the case for false representations and slander of business. Appeal from the Circuit Court of Vermilion County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1903.

Action of assumpsit by a trustee in bankruptcy to recover money alleged to have been paid by his bankrupt within four months prior to the adjudication. Error to the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the May term, 1903.

<p>1. Alimony and solicitor’s fees—when allowance of, is proper. An allowance of alimony and solicitor’s fees is proper where, prior to ' the final hearing, it has been made to appear to the court that the complainant, against whom the allowance was made, had personal and real property and was employed and earning a regular salary.</p> <p>2. Solicitor’s fees—when allowance of, may be made. An allowance of solicitor’s fees earned in the successful defense of a proceeding for divorce may be included in the final decree entered in such cause.</p> <p>3. Notice—effect of failure to give, upon alloivanee of alimony and solicitor's fees. Notice is not essential to the validity of an order entered in a divorce proceeding allow ing alimony and solicitor’s fees, inasmuch as a party to a cause must take notice of all motions entered upon the record.</p>

<p>Appeal from the Circuit Court involving the propriety of a claim against a deceased’s estate. Appeal from the Circuit Court of Clark County; the Hon. Henry Van Sellar, Judge, presiding. Heard in this court at the May term, 1903.</p>

Bill to have absolute deed declared a mortgage. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1903.

<p>1. Written instrument—when parol evidence does not tend to vary. An agreement made collateral to a note, providing out of what funds the same shall be paid, is not inconsistent with the terms of such note and may be shown by parol.</p> <p>2. Application of payments—effect of agreement as to. If there is a parol agreement between the creditor and the debtor, collateral to a note, as to how payments shall be applied, such agreement may'be shown in evidence, and is equivalent to a direction by the debtor as to the application of payments.</p> <p>3. Application of payments—general principles as to. The debtor, in the first instance, has the right to designate upon what indebtedness a payment made by him shall be applied and the creditor is bound so to apply the same; where, however, neither debtor nor creditor expressly direct upon which of two existing claims the payment shall be applied, the law will apply it as the equity and justice of the case may require: thus, if one debt is secured and the other unsecured, the law will apply the payment upon the. secured debt.</p> <p>A Propositions of law—when refusal of, is proper. Where propositions of law, correct in principle, are refused, such refusal is not prejudicial if the court correctly decides the case upon another theory which rendered such propositions immaterial and inapplicable.</p>

Action of covenant for alleged breach of covenant of warranty deed. Error to the Circuit Court of Pike County; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1903.

<p>1. Negligence—what essential to recover for injuries sustained by reason of. In order to maintain an action for an injury to person or property, arising from negligence, there must be shown to exist some obligation or duty toward the plaintiff which the defendant has left undischarged.</p> <p>• 2. Trespa sser—duty of railroad company to. A railroad company in the operation of its trains owes no duty to a trespasser upon its tracks or right of way, except the duty not wantonly or wilfully to inflict injury upon him.</p> <p>3. Trespasser—how far intent is to be considered in determining ivho is a. The mere fact that it was difficult, at the particular point where a person sustained his injury, to determine where the highway ended and the right of way of the railroad company began, does not affect the question as to whether a particular person is a trespasser; nor is the fact that it may not have been the intention of such a person to become a trespasser, material.</p> <p>4. Wanton negligence—what is not. It is not wanton or wilful negligence to fail to comply with the statute providing that no railroad company shall permit a train of cars for the transportation of merchandise, etc., to be run without a good and sufficient brake attached to the rear or hindmost car of the train and without a trusty and skillful brakeman stationed upon such car.</p> <p>5. Wanton negligence—definition of. Wanton or wilful negligence is such a gross want of care and regard for the rights of others, as to imply a disregard of consequences, or a willingness to inflict injury, and whether a particular act is wanton or wilful negligence is largely dependent upon the particular circumstances of each case.</p> <p>6. Wanton negligence—what does not establish. Held, as a matter of law from the particular evidence in this case, that the railroad company in backing its train was not guilty of wanton or wilful negligence, and that, therefore, a peremptory instruction for the defendant should have been given.</p>

Action on the case for loss of services of minor child. Appeal from the Circuit Court of Clark County; the Hon. Henry Van Sellar, Judge, presiding. Heard in this court at the May term, 1903.

<p>Action of assumpsit instituted before a justice of the peace to recover for the alleged loss of wearing apparel. 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>

Bill for accounting and specific performance. Appeal from the Superior Court of Cook County; the Hon. Axel Ohytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>1. Assault and battery—when corporation is liable for an. A corporation is not liable for an assault and battery'unless it appears that at the time of the assault it owed some duty to the person assaulted, and that the person committing the assault was acting under its authority.</p> <p>2. Assault and battery—what declaration charging, against corporation need not allege. A declaration in trespass against a corporation charging assault and battery need not allege mere evidentiary facts, such as the existence of the relation of passenger and carrier. A different rule, however, might apply had the action been trespass on the case. (Churchill v. C. & A. R. R. Co., 67 Ill. 390, distinguished.)</p> <p>Reporters’ Note. The count under consideration and approved in the above case was as follows :</p> <p>For that the defendant, on, to wit. April 3, 1899, was the owner, possessed of and using and operating a certain street railroad extending along and upon Cottage Grove avenue in the city of Chicago, county and state aforesaid, together with certain cars used and operated upon said railroad and in connection therewith for the carriage of passengers for hire, and while so engaged in operating said railroad, said defendant, by his servant, one Timmons, a conductor in his employ, on the said second day of April, A. D. 1899, in the county aforesaid, with force and arms assaulted the plaintiff and beat and braised, wounded and ill-treated him.</p> <p>Whereby the plaintiff became and was sick, sore, lame and disordered, and so continued for a long space of time, to wit, thence hitherto, during all of which time the plaintiff suffered great pain and was hindered from transacting Ms necessary affairs and business, and also thereby the plaintiff was obliged to incur and did then incur great expenses, to wit, to the amount of $800, in and about endeavoring to be cured of the injuries sustained by him. And thereby also, divers large quantities of blood which issued and flowed on the clothes and wearing apparel, to wit, one coat, one pair of trousers and one shirt of the plaintiff, wherewith the plaintiff was then clothed, of the value of $35, and greatly soiled, damaged and spoiled the same so that the same thereby became of little or no use to the plaintiff, and other wrongs to the plaintiff then and there did against the peace and dignity of the people of the State of Illinois.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Russell P. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

.Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard- in the Branch Appellate Court at the October term, 1902.

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Action 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 October term, 1902.</p>

<p>Bill of interpleader. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Breach of contract—what gives cause of action for inducing a. Where one maliciously interferes with respect to a contract between two parties and induces one of them to break such contract to the injury of the other, the injured party may maintain an action against the wrongdoer.</p> <p>3. Parol evidence—competency of, to affect a specialty. The terms of a contract under seal cannot be varied except by an instrument of the same dignity, and this notwithstanding such contract would have been valid without a seal; but the mere waiver of one of the terms or of a condition of such a contract, which waiver operates merely by way of release or discharge but leaves the contract otherwise unchanged, may be shown by parol.</p> <p>3. Contract—when becomes effective. A contract exists and becomes effective as soon as one copy thereof is executed; the subsequent execution of a duplicate is a mere formality or ministerial act, not affecting the operative nature of the contract itself.</p> <p>4. Performance—when obligation to place one's self in readiness for, is absolved. Where one party to a contract puts it beyond his power to perform, the other party thereto need not place himself in a position of readiness to perform; a mere allegation in his pleading that he was ready and willing to perform, is sufficient.</p> <p>5. Guaranty policy—when evidence as to the readiness of .a guaranty company to issue, is competent. Held, in this case, that it was competent for an official of a guaranty company to state that his company had passed upon the title to real estate and was at a particular time ready to issue a guaranty policy thereon.</p> <p>6. Letters—when, competent in favor of their writer. Letters written by a party to a transaction while the same is in fieri are sometimes competent in behalf of the writer to show intention, notice, or as an inducement to the allowance of punitive damages.</p> <p>7. Action on the case—when, does not lie. An action on the case does not lie for the breach of a contract to convey land, notwithstanding such breach may be accompanied or followed by the conveyance of the res to another, since the breach, and not such conveyance, is the proximate cause of the injury. A recovery in case would be no bar to a recovery in assumpsit, and therein lies the reason of the rule.</p>

<p>Action of assumpsit upon insurance policy. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Offers of compromise—when error to ref rise instruction concerning. Where evidence has been heard by the jury bearing upon alleged offers of compromise, it is error for the court to refuse to instruct the jury that such offer should not be regarded as a recognition of liability.</p> <p>2. Ordinary care—definition of. Ordinary care is such as an ordinarily prudent person exercises upon any and all occasions; not such as such a person usually exercises.</p>

Action 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 October term, 1902.

<p>Bill for divorce. 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. Judgment order—effect of omission of. The record in a criminal case is fatally defective if it omits the final judgment order and this omission is not supplied by the recital of such an order in the mittimus issued in the case.</p>

<p>Action of assumpsit. Error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1903.</p>

Proceeding for injunction to restrain the removal of telegraph tickers, etc. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1903.

<p>Bill to foreclose. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1903.</p>

Claim against deceased’s estate for legacy claimed to have been orally promised. Error to the Circuit Court of Cook County; the Hon. Elbkidge Hanegy, Judge, presiding. Heard in this court at the March term, 1903.

<p>Indictment for violation of “ Slot Machine "Act.” Error to the Criminal Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1903.</p>

Action on the case for personal injuries. Error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1903.

<p>1. Findings of fact—ivhen not disturbed. Unless it is clear that injustice has been done, the Appellate Court will not disturb findings of fact made by a master and approved by the chancellor.</p> <p>3. Wife’s property—when, not subject to payment of husband's debt. Where real estate purchased with the wife’s money is placed in the name of her husband, by him managed and controlled, and is, prior to the rendition of a judgment against him, conveyed to his wife, such conveyance will stand as against a judgment creditor, unless special facts appear, such as actual fraud on the part of the husband or the wife, the giving of credit upon the faith of the husband’s record ownership, or the creditors being in some way misled by reason of such record ownership.</p>

<p>1. Rulings op court—scrutiny subjected to, where, case is close. Where the evidence is conflicting and of such a nature as would have justified a verdict contrary to that actually rendered, the evidence admitted on behalf of the successful litigant must have been competent, and the instructions given in his behalf must have been accurate.</p> <p>2. Original entries—when booh of, is incompetent. Entries contained in a book of original entry are incompetent, where it is not shown that such entries were true and correct when made.</p> <p>3. Original entries—when booh of, is incompetent. A book of original entries is incompetent as against a litigant, where the entries sought to be proved were made by third persons with whom he was in nowise connected.</p> <p>4. Instructions— as to ivhen testimony ofroitness may be disregarded. An instruction which tells the jury that before they should disregard the testimony of a witness, they should believe that such witness has palpably testified falsely, is erroneous.</p>

<p>1. Void order—power of court over. Where the court has entered an order which is void ab initio, it has power upon reasonable notice at any time within five years, to set the same aside. (Kronenberger v. Heinemann, 104 Ill. App. 156. overruled in part.)</p> <p>2. Void—when order against a party deceased is not. An order is not void but is voidable, where at the time of its entry the party against whom it was entered was dead but such fact did not appear of record.</p> <p>y. Error coram nobis—what will not reach. Where a judgment is rendered against a person who has died after service but before judgment, such fact cannot be corrected by appeal or error, unless in some proper way the fact of such death is made to appear of record.</p> <p>4. Express trust—essential to he in ivriting. An express trust pertaining to real estate must, in the absence of fraud, be evidenced by some memorandum thereof, signed by the party to be charged therewith.</p> <p>5. Court of equity—will not perform, useless acts. Where a bill of revivor has" been filed and the question arises ad to the propriety of its maintenance, the court will consider not only its merits, but the merits of the proceeding sought to be revived, and if the merits of the original cause were properly adjudicated against the complainant in the bill of revivor, the relief sought thereby will be denied.</p>

Action of account and attachment in aid thereof. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at -the March term, 1903.

<p>1. Boxp—construction of, where conditioned to perform, covenants of lease. Where a bond is conditioned for compliance with certain covenants of a specified lease, such covenants are as much a part of the condition of the bond as if set forth therein.</p> <p>3. Bond—when condition of, is not too vague. The condition of a bond providing for the erection of a block of buildings, though general in terms and leaving much to the discretion of the obligors, will not preclude a recovery where no buildings have been erected.</p> <p>3. Bond—when penalty of, considered as liquidated damages, is not excessive. Where a bond conditioned for the erection of five first-class buildings, three stories high and constructed of brick and stone, is broken, a penalty of $5,000 stipulated as liquidated damages, is not excessive.</p> <p>4. Liquidated damages—when penalty of bond will be enforced as, When from the nature of the condition contained in the bond the damages for the breach of such condition cannot be calculated with any degree of certainty, the penalty of such bond will usually be held to be liquidated or stipulated damages.</p> <p>5. Contract—when a, is quasi-alternative, A bond by which the obligors agree to erect a block of buildings, or in default thereof, to pay a specified sum of money, while not technically an alternative contract, partakes of that nature. ■</p>

<p>1. Trade-name—uihen person has proprietary right in a. Where a person is the original appropriator of a trade-name, employs it in his business, advertises it. and establishes a reputation in connection therewith. he acquires a right of property therein, which will be protected by injunction in a court of equity.</p> <p>2. Trade-name—what does not defeat the'right to protect a, in a court of equity. The mere fact that a person who has a lawful property in a trade-name has sought to deceive the public by false representations, does not defeat his right to protect such a trade-name in a court of equity, where such false representations were with respect to immaterial matters and the trade-name itself does not contain any misrepresentations.</p> <p>3. Trade-marks—not affeeted by copyright laws. The copyright laws of the United States do not apply to trade-marks.</p> <p>4. Misrepresentation—when trade-name does not include a. Where in connection with the use of a trade-name the word “ copyright ” is used, when no copyright actually exists, it cannot be said that such trade-name includes a misrepresentation which will defeat the right of the owner to protect such trade-name by injunction in a court of equity; nor does the fact that, in connection with the use of such trade-name, the owner thereof falsely claimed that he had ten stores located in various cities, when, in fact, he had but seven, defeat such right of protection.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Russell P, Goodwin, Judge, presiding. Heard in this court at the March term, 1908.</p>

<p>Action of assumpsit. Error to the Circuit Court of Cook County; the Hon. Edmund Burke, Judge, presiding. Heard in this court at the March term, 1903.</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Cook County; the Hon. Edmund Burke, Judge, presiding. Heard in this court at the March term, 1903.</p>

<p>Action of assumpsit. 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>

<p>1. Fraternal benefit society—right to terminate membership in a. A member of a fraternal benefit society may, at any time, with or without cause, terminate his membership therein.</p> <p>2. Fraternal benefit society—when membership in, is terminated. Where one pursuant to a resignation sent by himself, or by another in his behalf (with or without authority), is, after such resignation has been duly accepted, called upon to settle his account with his lodge and to return lodge property, pays the one and surrenders the other, he thereby terminates his membership in such organization and his beneficiaries are not entitled, in the event of his death, to benefits by virtue of a benefit certificate issued during his membership in such organization.</p> <p>3. Abstract—toliat should show. The abstract filed on appeal must be sufficiently full to enable the court to determine therefrom whether or not the errors assigned are well taken, and the court will not search the record to determine whether technical objections are well taken.</p>

<p>Bill to enjoin municipality from interference with fruit and flower stands. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1903.</p>

<p>' 1. Trial board—when finding of, under Civil Service Act, is void. The finding of such a trial board is void, where such board is not constituted according to the law and the rules which created it, or where it is based upon fraud.</p> <p>2. Mandamus—when, lies to determine title to office. Mandamus lies to determine whether a police patrolman is entitled to the office claimed by him under the Civil Service Act.</p> <p>3. Mandamus—ivhen payment of salary can be enforced by. Where, pursuant to a petition for mandamus, it has been determined that the petitioner is entitled to the office claimed by him under the Civil Service Act, he may, in the same proceeding, enforce the payment of his salary as the holder of such office.</p> <p>4. Demurrer—when, will not be carried back. A demurrer to a plea will not be carried back to the petition, where such petition has been demurred to, such dpmurrer overruled and an answer filed.</p> <p>5. Appropriation—presumption as to possession of money derived by reason of an. Where a petition for mandamus to compel, among other things, the payment of money, alleges the making of an appropriation for the purpose of paying the petitioner, among others, it will be presumed, the contrary not appearing, (the making of such appropriation having been established) that the municipality making such appropriation has the money to pay petitioner in its possession.</p> <p>6. Writ of mandamus—to ivhom should run. A judgment in a mandamus proceeding is proper where it directs that the writ issue commanding the municipality and its comptroller to pay the money in question in the proceeding.</p> <p>7. Assignment of errors—by whom made. An error can be assigned only by the party against whom it is committed.</p>

<p>1. Jurisdiction—when question of, may be raised. The question of jurisdiction may be raised at any time, and the party may, after he has r.iised such question, go to trial upon the merits without waiving the point.</p> <p>2. Reinstate case—when jurisdiction to, is lost. Where a case is dismissed upon a general call which reserves to the court jurisdiction to reinstate within a specified period, the court cannot, after the lapse of such period, reinstate the same, notwithstanding the order of dismissal was erroneous.</p> <p>8. Redocketing—entitlement of garnishment issue upon. Where the issue between the plaintiff in an attachment suit and the garnishee therein has been determined, an appeal taken from such determination and a reversal had thereof, the same should, upon a redocketir.g, be entitled according to the names of the respective parties to the attachment proceeding.</p> <p>4. Attachment suit—what essential to jurisdiction in. Where the defendant in an attachment suit has not been served except by publica- , tion, has not appeared, and no.property has been attached, a res in the 1 hands or control of the garnishee is absolutely essential to the court’s jurisdiction.</p> <p>o. Attachment suit—how far judgment in, binds. Where judgment is rendered against the defendant in an attachment suit prior to the trial of the garnishment issue, such judgment is final only in the sense that it binds such defendant to the extent of any debt due by the garnishee to such defendant, or to the extent of any interest in any property belonging to him in the hands of the garnishee at the time of the service of the attachment writ.</p> <p>6. Attachment suit—right of garnishee to attach proceedings in. A garnishee in an attachment suit may attack the proceedings had therein upon the ground that they are void.</p> <p>7. Attachment suit—when, deemed pending. An attachment suit in which the defendant has not been served except by publication, and has not appeared, and in which no property has been attached, is still pending, notwithstanding a judgment has been rendered against the defendant, where the garnishment issue has not been disposed of.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the October term, 1902.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>1. Variance—what not. Where a petition for a mechanic’s lien alleges that the contract upon which the claim for lien is sought, was made “ on or about August 1, 1901,” and the proof shows that it was entered into June 15, 1901, there is no variance.</p> <p>2. Contract—when contention that lien claimant has not performed his work in accordance with, will not he sustained. Where a subcontractor has constructed window frames for a building and the construction thereof has been approved by the owner thereof and the same have been made a part of the building, without objection upon the part either of such owner or his architect, such owner cannot thereafter claim that they were not constructed according to drawings which such subcontractor had never seen.</p>

<p>Action of assumpsit upon fire insurance policy. Appeal from the Circuit Court of Cook County; Hon. Elbridqe Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1003.</p>

<p>1. Cause of injury—by whom, to be determined. The cause of personal injuries, where the evidence is conflicting, is a question for the jury. ,</p> <p>2. Verdict—when not excessive. A verdict for §7,500 is not excessive where it appears that the plaintiff, a woman, sustained a permanent injury to her wrist, a bruise upon her head, and lameness, and a reduction of earning power from §1.25 or §1.50 per day to twenty-five or fifty cents per day, followed later by paralysis in the right side of her body, the loss of the use of the right arm and leg and an impairment of her speech, all probably of a permanent nature.</p> <p>3. Measure of dahagpjs—when instruction as to, in personal injury case, while erroneous, does not constitute reversible error. An instruction which tells the jury that if they find for the plaintiff then “ in assessing her damages they should assess such an amount as they may believe from all the evidence and under the instructions of the court she is entitled to,” is erroneous in that it allows the jury to award such damages as, from the evidence, they believe the plaintiff was entitled to, and not simply such as she sustained: but held, in this case, in view of all the circumstances, that the giving of such instruction did not constitute reversible error.</p>

<p>1. Master—duty of, to furnish reasonably safe machinery, etc. It is the duty of the master to exercise ordinary care in furnishing to his servants reasonably safe machinery, means and appliances for doing their work, and a servant has a right to assume that this duty has been performed.</p> <p>2. Assumed risks—what are. Where the master fails to exercise ordinary care in furnishing to his servants reasonably safe machinery for doing their work, yet, where the defects therein which rendered their use dangerous are so obvious and apparent that a servant must have been cognizant of their existence and of the danger resulting from the use of the defective machinery, and such servant, notwithstanding, continues in the work without complaint, he assumes the risk and cannot hold the master for injuries thus brought about.</p> <p>3. Assumed risk—when rule exempting servant from, does not apply. The rule exempting a servant from assuming the risk of a defect which the master had promised to repair, does nob apply to ordinary labor which requires the use of only common implements with which the servant is entirely familiar.</p>

Bill for injunction to restrain collection of judgment. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>1. Partnership—when liability of, continues notwithstanding ineorptoration. If an existing partnership becomes incorporated without any formal dissolution and notice thereof and continues dealing in the old way, the individuals composing such partnership continue liable as partners where the change of name does not convey information of the incorporation and the persons dealing with them had no notice of such incorporation.</p> <p>2. Dissolution op partnership—when supposed notices of, are properly excluded. Published notices referring to the formation of a corporation by parties who previously conducted their business as a partnership, are not competent where they do not set forth the dissolution, and there is no proof that they were published as the acts and declarations of the partners, and that there had been an actual dissolution.</p> <p>3. Instruction—upon partnership liability. It is not essential in an instruction upon the question as to whether a partnership or a corporation which has succeeded thereto is liable for goods sold and delivered, to point out specifically the issue of partnership dissolution involved in the case.</p>

<p>Proceeding for mechanic’s lien. Appeal from the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>1. Scaffold—when use of a, is at the servant’s perit. If a master is under an obligation to warn his servants to keep off a scaffold built by another contractor, without his knowledge or consent, for the use of bricklayers only, he discharges that duty to a carpenter where a warning was given, which if not heard, could have been heard by such carpenter, and the subsequent use of the scaffold by him is at his own peril.</p> <p>2. Warn—master’s duty to. There may be cases where, independently of whether the servant understands the English language or not, the'risk is so great, the danger so imminent and of such a nature that the master knows or ought to know concerning it and the servant is not capable of understanding or appreciating it, that it would be the duty of the master to take special pains to see to it that every servant is cautioned before he undertakes gsuch work, but in ordinary cases, unless the master’s attention is called to the fact that one or more of his servants does not understand such language sufficiently to comprehend his order or warning, it may well be doubted whether he is guilty of a want of ordinary care if he assumes that his servants understand an order or warning given in such language.</p> <p>3. Safe plage to work—when master has performed his duty to provide. Wliere a master lias provided a safe place upon which a servant may perform his work and such servant, upon his own volition, undertakes to perform his work from some other place, he assumes the risk, and if he suffers injury as a result, the master is not liable.</p> <p>4. Ordinances—when incompetent. An ordinance should not be admitted in evidence which tends to support a theory of recovery not sustained by any evidence in the case.</p>