Volume 117 — Illinois Appellate Court Reports

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. John L. Healy, Judge, presiding. Heard in this court at the October term, 1903.

<p>1. Motion to direct—what cannot be considered upon. The trial judge under the rule prevailing in this state is not authorized to weigh conflicting testimony in deciding a motion to direct a verdict.</p> <p>3. Motion to direct—when, may be granted. It is proper for the court to direct a verdict for defendant, if the proof does not fairly tend to make a case for plaintiS.</p> <p>3. Assumed risk—when doctrine of, does not apply. The rule that a direction by the master to continue the use of a defective instrument coupled with a promise to replace it with one not defective relieves the servant from the doctrine of assumed risk if injured during such continued use and because of the defect, does not apply to the use of simple implements with which the servant is entirely familiar.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Grundy County; the Hon. Samuel C. Stotjgh, Judge, presiding. Heard in this court at the April term, 1904.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of La Salle County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the April term, 1904.</p>

Action on the case for injury to real property. Appeal from the Circuit Court of Winnebago County; the Hon. Arthur H. Frost, Judge, presiding. Heard in thi^ court at the April term, 1904.

<p>1. Passenger and carrier—what does not establish relation of. Where a boy boards a railroad train for the purpose of selling newspapers under a custom which permitted such sale but did not contemplate continuance upon such train while in motion, he does not become a passenger, in the absence of his declaration of' an intention so to do, notwithstanding he may have in his pocket sufficient money with which to pay his fare.</p> <p>2. Ejection from train—when railroad company not liable for injuries resulting from. A railroad company is not liable for the act of its brakeman, acting without authority, in ejecting a trespasser from a moving train.</p>

<p>Action of assumpsit. Appeal from the County Court of Champaign County; the Hon. Calvin C. Staley, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>1. Bastardy—what evidence incompetent by way of defense in prosecution for. Proof of intercourse with the relatrix by men other than the defendant not within the period of gestation is incompetent inas-. much as it has no bearing upon the question of the paternity of the child, and, for like reason, proof of acts of impropriety or other conduct upon the part of the relatrix having no relation to the only issue, the paternity of the child, is incompetent.</p> <p>2. Bastardy—what evidence competent by viay of defense in prosecution for. Where the relatrix has testified that the defendant was the father of her child, proof of conduct on her part or her declarations before the birth of her child, which tend to show that she then assumed a position-inconsistent with her testimony upon the trial, and then recognized another than the defendant as the father of her child, is competent.</p>

<p>Bill in nature of bill of review. Appeal from the Circuit Court of Pike County; the Hon. Harry Higbee, Judge, presiding. Heard in tins court at the May term, 1904.</p>

<p>1. Bill of exceptions—when, insufficient for review. Where an action at law is tried by a jury, a bill of exceptions which does not show a motion for a new trial, the action of the court overruling the same, and an exception thereto, is insufficient to authorize the Appellate Court to review the questions involved in the admission or exclusion of evidence, the giving, modifying or refusing of instructions and the sufficiency of the evidence to support the verdict.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Morgan County; the Hon, Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1904.

<p>1. Desertion—how period of, computed in action, of divorce for. In an action for divorce charging desertion, the period of such desertion is to be computed by excluding the first day and including the last.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. J. W. Craig, Sr., Judge, presiding. Heard in this court at the May term, 1904.

Action commenced before justice of the peace. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1904.

<p>Action of replevin. Error to the Circuit Court of Macoupin County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>1. Certificate of evidence—when motion to strike, will be denied. Where the certificate of evidence is, in effect, a part of the decree entered in a cause, that is to say, is necessary to sustain the same, it will not be stricken from the record, notwithstanding it may contain no matter essential to a review of the case.</p> <p>2. Abstract—when motion to strike, will be denied. Where an abstract filed on appeal contains everything essential to a determination thereof, it is in proper form, and will not be stricken from the files.</p> <p>3. Solicitor’s fees—«Aera taxation of, as costs in partition proceeding, improper. Where in such a case the allegations of the bill are not all sustained by the proof, and a substantial and successful defense has been interposed by one of the defendants, the taxation of complainant’s solicitor’s fees as costs is improper.</p>

<p>Contest upon guardian’s account. Appeal from the Circuit Court of Mason County; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>1. Declaration—how, should he framed, A declaration in a case should set up facts from which conclusions of law follow, and the allegation of mere conclusions without such facts is of no avail.</p> <p>2. Incorporation fees—when, cannot he recovered hack. Where fees have been paid to the Secretary of State under no duress, they cannot be recovered back, notwithstanding their exaction may have been based upon an erroneous construction of the law under which they were claimed.</p>

Prosecution under dram-shop ordinance. Appeal from the Circuit Court of Jersey County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1904.

Action on the case for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. James W. Craig, Sr., Judge, presiding. Heard in this court at the May term, 1904.

<p>Bill of interpleader. Appeal from, the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1964.</p>

<p>1. Appeal—right of executor to. The fact that an executor may personally have reason to be aggrieved by a decree entered by a court of probate does not deprive him of the right to appeal therefrom in his official capacity.</p> <p>2. Jurisdiction—when court of probate has not. While a court of probate has, with respect to estates within its jurisdiction, incidental chancery powers, it has not general chancery jurisdiction, and it cannot set aside an agreement made between the heirs for the purpose of preventing a will contest, upon the ground that it was obtained by improper means.</p> <p>3. Administration of estates—how affected by collateral agreements among heirs. The court of probate has no power to determine the validity of collateral agreements between legatees or devisees, executed subsequent to the death of the ancestor, and to adjust the equities arising therefrom; its sole province is to see that the will of the testator is executed in the manner therein provided.</p> <p>4. Life estate—construction of particular clause of u-ill creating. A clause contained in a will as follows: “ All my personal estate and personal property, after paying debts, costs of administration and executing this will, legacies and bequests, I give and bequeath and the free and liberal use thereof, to my said wife, Elizabeth Teel, for and during her natural lifetime, and whatever may remain thereof at her decease I hereby give and bequeath to my aforesaid children in equal parts and proportions, share and share alike,” construed to vest in Elizabeth Teel a right to receive the fund mentioned in said clause from the executors and to handle and control the same during her lifetime, with full power of disposition at her discretion.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1904.</p>

Action on the case for fire communicated by locomotive. Appeal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1904.

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1904.

Action on the case for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1903.

<p>Action, of trespass. Appeal from the Circuit Court of Sangamon County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>1. Tender—what essential to. To make a good tender after suit brought, it is essential that there should be brought into court not only the sum admitted to be due but also the plaintiff’s costs up to the time of such tender.</p>

<p>1. Deposition—right of party not taking, to read. The plaintiff has the right to read in evidence a deposition taken by the defendants.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the May term, 1904.

<p>1. Contract—token separate instruments constitute. Held in this case that a collateral note with the receipt given for the collateral constituted a single contract and that parol evidence was not admissible to contradict them.</p> <p>3, Collateral note—construction of. In this case a collateral note is construed and held to confine the pledge to demands only upon which both of the makers thereof were liable.</p>

<p>1. Wages—what not defense to action for. An employer sued by its employee for wages cannot successfully defend upon the ground that the amount claimed, or a portion thereof, was paid by it to a plaintiff in garnishment where it appears that such employer failed to interpose in such garnishment suit the right of exemption existing in favor of the employee.</p> <p>2. Vexatious appeal—allowance of damages for. Where it appears that an appeal has been taken merely for delay and is vexatious in character, it is proper to award ten per cent of the amount of the judgment affirmed as damages upon account thereof.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Macoupin County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>Action of trover. Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the May term, 1904.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook Countv; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the October term, 1903.

<p>Action for libel. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this'court at the October term, 1908.</p>

Action 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, 1903.

<p>1. Medical services—token traction company liable for. Where a traction, company injures a stranger and then requests a physician to care for him, or with knowledge of the facts ratifies the act of the conductor in employing him, or with like knowledge fails or neglects to countermand such employment, the company is liable to such physician in a reasonable sum for his services.</p> <p>2. Medical services—toko may bind traction company to pay for. Where a street railway company injures a stranger, and his condition requires prompt medical®attendance and no surgeon of the company is obtainable, the representative of the company in authority at the time and place of the accident has a right to employ a physician and thus, for the time being, at least, to bind the company for a reasonable compensation for his services. , '</p>

<p>Action upon replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>1. Passenger and carrier—when relation of, exists.. Held, from the particular evidence introduced in this case, that the relation of passenger and carrier existed between the plaintiff and the defendant.</p> <p>2. Declaration—when, sufficiently alleges that the plaintiff was a piassenger. It is not essential that the declaration should allege in terms that the plaintiff was a passenger; it is enough if facts are set up from which that conclusion may legally be drawn.</p> <p>3. Instructions—necessity of telling jury that they must pass upon the facts under the instructions of the court. It is not necessary for the court to state in every instruction that the jury in passing upon the facts must be governed by the instructions of the court.</p> <p>4. Instruction—when, not ground for reversal. An instruction, though subject to criticism, is not ground for reversal unless it appears that the excepting party probably was, or at least might have been, prejudiced by such instruction.</p> <p>5. Instruction—upon credibility of ivitness criticised. An instruction as follows : “ The court instructs the jury that the denunciation of witnesses by counsel, if any such was indulged in, should not influence the jury to disregard or disbelieve the testimony of any unimpeached witness. Witnesses, like all other citizens are presumed by the law to be law-abiding citizens, and the law supplies a proper method of impeaching their evidence in cases where it can be impeached,”— though not reversible error in this case, held subject to criticism.</p> <p>6. Verdict—when, not excessive. A verdict for §10,000 is not excessive where it appears that at the date of his injury the plaintiff was about fourteen years old, before that time had perfect health, was crushed and rolled over under the guard which was around the wheels of the car, his right thigh bone broken, one consequence of which is that his right leg is three-quarters of an inch shorter than his left,' and where it further appears that the fracture was a comminuted one: that his left leg was also injured; that as a further consequence of the injury there is a bony growth about two" inches below the left knee which at the time of the trial was about the size of an egg and had been increasing in size; that an operation will be necessary to remove this growth, which may involve a serious loss of bone, impairing the strength and usefulness of the leg, and where other complications might result from such operation.</p>

Criminal prosecution for setting up a lottery, etc. Error to the Criminal Court of Cook County; the Hon. Arthur H. Chetlatn, Judge, presiding. Heard in this court at the October term, 1903.

<p>Action of replevin. Error to the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the March term, 1904.</p>

Action 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, 1903.

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon, Philip Stein, Judge, presiding, Heard in this court at the October term, 1908.</p>

<p>1. Injunction pendente lite—when stay order preferable to. It is suggested in this opinion that in many instances a temporary stay order or restraining order, expiring at some , definite time set for the hearing of the application for a formal injunction pendente lite, might serve the purpose equally with the granting of an indefinite injunction in the first instance, and accordingly be better practice.</p> <p>2. Injunction pendente lite—granting of, without notice, sustained. Held, under the particular facts shown in the bill, that the granting of an injunction restraining the transfer of property by the defendants was not an abuse of the discretionary poxver of the court.</p> <p>3. Injunction—where improper breadth of, should be complained of. Where it is complained that the scope of an injunction is too broad and its operation too drastic, an application for modification should be made to the court xvhich granted it.</p> <p>4. Receiver—when appointment of, without notice, proper. It is only in cases of exceptional occurrence and emergency that the appointment of a receiver without notice is proper.</p> <p>5. Receiver—appointment of, without notice, sustained. In this case a receiver was appointed in a proceeding commenced by creditor’s bill, without notice to the defendant, and such appointment is sustained, the court intimating that notwithstanding the strong allegations of the bill, such appointment would not have been justified had the defendant, instead of being an individual, been a going business concern.</p> <p>6. Receiver—when order appointing, may be made. An order appointing a receiver and requiring the complainant in a cause to give bond as required by statute, may be entered simultaneously, and the appointment of the receiver need not be deferred until such bond has been actually executed and filed.</p> <p>7. Receiver—by whom amount of bond given upon appointment of, to be determined. The amount of the bond to be given by the complainant obtaining the appointment of a receiver is a matter resting in the discretion of the court, and complaint with respect thereto should be made to it.</p> <p>8. Receiver—nature of bond given by complainant upon appointment of. The bond given by a complainant obtaining the appointment of a receiver does not take the place of or secure the receiver’s responsibility and liability on his bond or otherwise for property coming into his hands, but is for the damages resulting and attorney’s fees incurred by the appointment and acts of the receiver, if the appointment is revoked or set aside.</p> <p>9. Receiver—to ivhom complaint as to condition of bond given upon appointment of, should be made. Where the bond given by a complainant obtaining the appointment of a receiver is claimed to be defective and not in compliance with the statute, the remedy is not by appeal but by application to the appointing court.</p> <p>10. Return nulla bona—when, insufficient to sustain creditor's bill. A return nulla bona made by direction of the complainant’s attorney without any reasonable effort by the sheriff to collect the execution from the legal assets of the defendant is not sufficient to sustain a creditor’s bill.</p> <p>11. Return nulla bona—when, sufficient to maintain creditor's bill. A return nulla bona is sufficient where the sheriff has made proper and unavailing efforts to collect the execution, notwithstanding such execution may not have been held by him during the entire term of its life.</p> <p>12. Return nulla bona—when, not essential to maintain bill in nature of creditor's bill. A bill in aid of execution is in the nature of a creditor’s bill and may be maintained notwithstanding an execution has not been returned nulla bona, and there is no distinction in this regard between a case where the judgment debtor has fraudulently conveyed land and one in which he has with his own funds purchased land and fraudulently placed it in. the name of another.</p>

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

<p>Action of debt upon bond. Appeal from the Circuit Court of Cook County; the Hon. Owen P. Thompson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

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

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanepy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>1. Extra work—by whom expense of, done by contractor, should be borne. Expense of extra work done by a contractor occasioned by the errors of the inspectors of the owner, should be borne by such owner.</p> <p>2. Commissioner of public works—when, cannot bind city. The commissioner of public works of the city of Chicago has no authority to change or alter a contract entered into between such city and a contractor.</p> <p>3. City engineer—effect given to certificates of. Certificates for payment issued by the city engineer in the performance of his duty are presumed, in the absence of evidence to the contrary, to include only material properly used in the performance of the contract under which the certificate is issued.</p> <p>4. Judicial notice—of what taken. Judicial notice will be taken by the court of such things as are or should be well known in its jurisdiction.</p> <p>5. Judicial notice—of what taken. Judicial notice will be taken of such soil conditions existing within the limits of its territorial jurisdiction as are matters of common knowledge.</p> <p>6. Contract—when attempted modification of, unauthorized. The mayor and other officers of the city of Chicago have no authority to enter into a supplemental contract substantially modifying a previous one let (as it was required by statute to be) to the lowest responsible bidder.</p> <p>7. Measure of damages—for failure to pay money when due. Interesfc, ordinarily, is the proper and sole measure of damages in such case.</p> <p>8. Damages—demand for, entire. A demand or claim for damages is, ordinarily, an entirety, and cannot be split up and sought to be recovered for, part in one action and part in another. One recovery bars all subsequent claims upon account thereof.</p> <p>9. Delay in performance—failure to pay as provided by contract excuses. Delay in performance by a contractor is excused by the failure of the owner to pay promptly as required by contract.</p> <p>10. Chancery suit—when pendency of, as bar to action at law, cannot be availed of. Where the defendant to an action at law has pleaded to the merits and only seeks to raise the question of the pendency of a chancery suit as a bar to such action by introducing a transcript thereof, and moving to dismiss, the right so to raise such question is deemed to have been waived.</p> <p>11. Judgment—when, should not provide for payment out of particular fund. Where an action in personam is brought against a municipality, the form of judgment should not provide for payment of such judgment out of a particular fund.</p>

<p>1. Error of fact—what is, authorizing vacation of judgment after entry term. The misprisions of the clerk in failing to keep the declaration in the files of a case and in failing to make an entry of the filing thereof on the register kept pursuant to rule of court, is such error of fact as will warrant the vacation of a judgment after the term of entry.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

Contest in court of probate over right to widow’s award. Error to the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Marcus KatanaQH, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>1. Special traverse—what essential to. Where a plea is what is known as a special traverse, the inducement should be in substance a sufficient answer to the declaration, though not a direct denial nor yet confession and avoidance, and such a plea should conclude with a traverse which goes to a material point of the declaration upon which the merits may be tried.</p> <p>2. Special traverse—how, should be answered. A plea which is in effect a special traverse should be answered by joining issue thereon.</p> <p>3. Nül tiel record—when plea of, improper. A plea of mil tiel record is not a proper plea where the action is based upon a bond and not upon a record.</p> <p>4. Evidence—what, competent, in action of debt upon appeal bond. In an action of debt upon an appeal bond evidence offered under an appropriate plea which tends to show that the condition of the bond has not been broken, is competent.</p>

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

<p>Proceeding in Juvenile Court. Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1904.</p>

Action on the case to recover damages alleged to have been caused by the negligent use of explosives. Appeal from the Circuit Court of Cook County; the Hon. Edwakd F. Dunne. Judge, presiding. Heard in this court at the March term, 1904.

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1904.</p>

<p>1. Collection of judgment—when injunction does not lie to restrain. Injunction to restrain the collection of a justice’s judgment does not lie where it appears that the complainant knew of the entry of the judgment against him upon the day of its rendition, and in his bill does not set up fraud, accident or mistake which, prevented him from availing of his remedy by appeal. •</p> <p>2. Collection of judgment—bond essential to valid injunction restraining. It is error to enjoin the collection of a judgment without requiring the complainant to give bond as required by statute.</p> <p>8. Justice of peace—injunction does not lie against. A court of equity will not enjoin a justice of the peace concerning a matter over which he has jurisdiction.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Yail, Judge, presiding. Heard in this court at the October term, 1903.</p>

Proceeding to enjoin construction of freight house, etc. Error to the Superior Court of Cook County; the Hon. Axel Ohytraus, Judge, presiding. Heard in this court at the March term. 1904.

<p>1. Service of notice—when, not established. Where a lease provides for termination thereof upon service of a particular notice to “any person in possession,” service upon a person found upon the premises other than the lessee is not such a service as is contemplated by the lease.</p> <p>2. Possession—who not deemed in, for the purpose of maintaining forcible detainer. Possession by a person who merely happens to be on . the premises, as for instance, a mere lodger, is not such a possession as will authorize the maintenance of forcible detainer.</p> <p>3. Lease—effect of lessee’s failure to sign. It is no more necessary for a lessee to sign a lease in order that the same may become a binding obligation than it is for the grantee of a conveyance in fee to sign the deed.</p>

Proceeding to enjoin construction of side-track. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1904.

<p>'Foreclosure proceeding. Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1904.</p>

<p>1. Injunction bill—construction of order of reference entered upon fling of. Notwithstanding an order referring a bill for injunction to a master to pass upon the question as to whether an injunction should issue, does not refer to a temporary injunction, such is held in this case to have been the plain nature and scope of the order.</p> <p>2. Injunction—what conclusive of wrongful issuance of. The fact that a motion for the dissolution of an injunction was made, heard and granted, is conclusive evidence that the same was wrongfully issued.</p> <p>3. Assessment of damages—effect of failure to issue injunction writ upon right to. Where an injunction was ordered it is immaterial, so far as the right to an assessment of damages is concerned, whether the writ ordered actually issued.</p> <p>4. Assessment of damages—what facts essential to sustain. In order to sustain an order assessing damages upon the dissolution of an injunction, it is only necessary that such order should find damnification by the defendant and the extent thereof.</p> <p>5. Decree—what facts sufficient to sustain. Not evidentiary or probative facts, but ultimate facts alone, are all that is necessary to find in any decree to sustain it.</p>

<p>1. Civil service commission—how far acts of, in discharging employee in classified service, subject to review. In such case the court upon certiorari can only determine whether such commission had jurisdiction and whether it followed the form of procedure legally applicable to such case. x</p> <p>2. Civil service commission—upon what questions findings of, conclusive. The findings of such commission with respect to the duties of the employee discharged and with respect to his neglect in their performance are conclusive and not subject to review upon certiorari.</p> <p>3. Written charges—when, not insufficient to confer jurisdiction upon civil service commission. A charge against a paving.inspector in language as follows: “ Negligence and incompetency in the paving of Jefferson street,” does not so lack precision or particularity as to prevent such commission from acquiring through it jurisdiction to try the alleged offender or as to show that in so trying him it did not fully conform to proceedings legally applicable in such case.</p> <p>4. Removal from classified service—what ground for. Negligence and incompetency on the part of an officer in regard to some particular work which it was his duty to do or to supervise and look after, are causes for which the commission may properly allow a removal.</p> <p>5. Removal from classified service—what constitutes acquiescence in. Long inaction, it is intimated, would constitute such laches as would preclude a petitioner from obtaining reinstatement after removal by the civil service commission.</p>

<p>Bastardy proceeding. Appeal from the Criminal Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard "in this court at the March term, 1904.</p>

Action on the case for personal injuries. Error to the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in this court at the March term, 1904.

Action on the case for injury to real property. Appeal from the Superior Court of Cook County: the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Bill for specific performance, etc. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Action on the case for slander. Appeal from the Circuit Court of Cook County; the Hon. Richard XV, Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>1. Homestead loan association—when contract ultra vires a. A contract by which a homestead loan association, undertakes to pay to the holder of stock certificates the full value of one hundred dollars, for each share at the end of six years from the date of such certificates, is ultra vires a homestead loan association, and this notwithstanding the statutory provision authorizing the issue of shares of stock in periodical series, each class having a different fixed periodical payment of dues, the payment of which “ shall continue on each share until the same shall have reached maturity value or is withdrawn or retired,” where the issuance of such stock was prior to the enactment of such statute.</p> <p>3. Homestead loan association act—when complainant cannot have benefit of. 4 corporation in effect doing a banking business is not entitled to the benefit of the Homestead Loan Association Act and cannot enforce fines and premiums by foreclosure where, but for such act, they would be usurious.</p> <p>3. Premium—when contract providing for payment of, invalid, Where a borrowing member of an association did not obtain his loan as a result of the money being offered in open meeting, but merely agreed to pay the premium fixed by the by-laws of the association, such premium cannot be enforced in a proceeding to foreclose.</p> <p>4. Usury—when grantee in conveyance may avail of defense of. Where the grantee in a conveyance of land assumes and agrees to pay a mortgage thereon, he has the right to show as a defense to such mortgage that the same is usurious, where the mortgagee is a corporation pretending to be, but not in fact, a homestead loan association.</p>

<p>1. Promise—when, not binding for want of consideration. The verbal acceptance of a written order to pay money is not binding upon the acceptor, if at the time there were no funds in his hands with which to pay such order and there was no consideration for such acceptance, and the holder of such order did not in any wise change his position by virtue of such acceptance.</p>

<p>Bill for accounting. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1904.</p>

<p>Bill for accounting, etc. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the March term, 1904,</p>

<p>1. Interest—when allowance of, for unreasonable and vexatious delay, improper. Something more than mere delay and appearing and defending an action is essential to establish an unreasonable and vexatious delay of payment.</p> <p>2, Architect—when, not entitled to make extra charge. Held in this case that particular services, such as the making of extra drawings, consultations with respect thereto, and providing a superintendent for the work, were not of such character as to entitle the supervising architect to make charge for extra service upon account thereof.</p> <p>8. Verdict—ro/ien, set aside on appeal. It is the duty of the Appellate Court to set aside a verdict which appears to be clearly against the weight of the evidence.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1901.

<p>1. Order of commitment—when presumptions indulged in favor of. Every reasonable intendment and presumption will be indulged in support of an order to commit a respondent for contempt for failure to pay alimony where such order recites that the court heard the evidence and the transcript of the evidence appears to have been made up as per prceeipe and does not contain a certificate of evidence.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1904.</p>

<p>1. Order of distribution—when, erroneous. An order entered in a deceased’s estate, directing the administratrix to pay to a foreign guardian the distributive share of his ward, is improper where it does not appear that an account had been filed in such deceased’s estate and such order does not ascertain and fix the amount of such distributive share.</p> <p>2. Assignment of error—ivhen deemed waived. An assignment of error which is not argued in the brief of the complaining party is deemed to have been waived.</p> <p>3. Trial out of ordf,r—review of action of court in granting. The trial court has a broad discretion in the matter of advancing and trying a cause out of its regu lar order for good cause shown, and the exercise of such discretion will not be reversed on review unless the record shows abuse thereof or manifest injustice to the complaining party.</p> <p>4. “ Cause ”—what is, -within meaning of section 16 of Practice Act. An appeal from an order of distribution entered by the court of probate is a “ cause ” within the meaning of section 16 of the Practice Act.</p> <p>5. Heirship—jurisdiction of court of probate to enter. The court of probate has jurisdiction, notwithstanding the absence of a special statutory enactment providing therefor, to ascertain and determine by decree the heirs of an estate over which it has jurisdiction.</p> <p>6. Heirship—how order finding, may be attacked. An order of the Probate Court finding the heirship in an estate is, in an appeal to the Circuit Court from a subsequent order of the Probate Court in that estate, prima facie evidence of the facts found. It may be contradicted in such appeal by evidence overcoming it, but if the party denying the heirship does not wish to assume the burden of proof in the Circuit Court, he must in the Probate Court attack the finding of heir-ship, and if defeated, appeal from the order making it, or from one refusing to vacate it.</p> <p>7. Court of probate—presumptions which aid orders of. The court of probate is a court of general jurisdiction as to the matters within its sphere, and therefore as liberal intendments will be made in favor of its orders as- are extended to the proceedings of the Circuit Court as to matters within its jurisdiction.</p> <p>8. Court of probate—wizen jurisdiction of person attaches. The court of probate acquires jurisdiction of a person who is present in answer to its citation through the mere fact of the presence of such person.</p> <p>9. Court of probate—when orders of, may be attacked. Until an estate is completely administered any previous order entered therein may be directly attacked in such court when application is made for another order which involves a further step in the administration.</p>

Bill to restrain collection of judgment, etc. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1904,

<p>Motion to set aside judgment .entered upon default. Appeal from the County Court of Cook County; the Hon. William H. Hinebaugh, Judge, presiding. Heard in this court at the March term, 1904.</p>

<p>1. Engineer’s estimate—right to correct, by new estimate. An estimate made by the engineer of a park board, if incorrect, may be rectified by a subsequent one.</p> <p>2. Engineer’s estimate—by whom, may be corrected. An estimate incorrectly made by the engineer of a park board, may be rectified by a subsequent one made by another engineer of such board who has become the successor of the one making the original estimate.</p> <p>3. Engineer's estimate—what does not justify rejection of claim for correction of. The fact that contractors have not made repairs provided by contract to be made to the satisfaction of the park commissioners, does not justify their rejection of a claim for the correction of an apparent mistake in its engineer’s estimate where there is no pleading or proof by such park board justifying a claim in the nature of a recoupment or set-off.</p> <p>4. Declaration—relation of caption to. The caption to an additional count filed to a declaration is no part of the count proper.</p> <p>5. General issue—effect of, to waive manner in which suit is brought. Th‘e filing of a plea of the general issue waives any irregularity in the bringing of suit in the partnership name without naming the partners of such firm.</p>

<p>1. Tort—when one person liable for another's. A person who negligently places in the hands of, or authorizes the use by another person of a dangerous instrument or article under such circumstances that he has reason to know that it is likely to produce injury, is liable for the natural and probable consequences of his act to any person injured who is not himself in fault.</p> <p>3. Parent—what does not fix liability upon, for tort of infant son. A father is not liable i'pr the tort of his infant son upon the ground alone that he is his father.</p> <p>3. Parent—what essential to fix liability upon, for tort of infant son. In order to render a parent liable for the tort of his infant son, it is essential that it should appear from the evidence that he might reasonably have anticipated injury as a consequence of permitting such son to employ the agency which produced the injury.</p> <p>4. Fire-arms—when parent not liable for permitting infant son to use. A parent is not liable for the tort of his infant son arising from permitting his son to use fire-arms where it appears that such son was of the age of twelve years, experienced in the use of fire-arms, acquainted with their construction and the proper mode of carrying, handling and discharging the same, and had been habitually careful.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh. Judge, presiding; Heard in the Branch Appellate Court at the October term, 1903.

Bill- for accounting and receiver, etc. Appeal from the Circuit Court of Cook County; the Hon. Elbridoe Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>1. Alimony—when, may he allowed, notwithstanding divorce is granted to husband. Upon a showing of equitable circumstances it is not improper to award alimony to the wife upon the granting of a decree to the husband.</p>

<p>1. Stay order—toben refusal to grant, upon application of one who has filed Ids petition in bankruptcy, is not error. A defendant in a judgment rendered by a justice of the peace who has appealed to the Circuit Court and has filed his petition in bankruptcy, cannot complain of the action of the judge of such Circuit Court in refusing to stay the proceedings in such cause where, upon final hearing, he having in the meantime been discharged as a bankrupt, he is granted a perpetual stay of execution, inasmuch as the plaintiff is entitled to his remedy against the surety upon the appeal bond.</p> <p>2. Error—when, cannot be complained of. An appellant is not permitted to take advantage of an error which does not injuriously affect him.</p>

<p>1. Common counts—when recovery may be had under. Where an - employer in a contract of service fails to fulfill its stipulations, the employee is at liberty to acquiesce in such abandonment and may recover in assumpsit under the common counts.</p> <p>2. Measure of damages—how, determined in suit upon contract of service. Where services have been rendered and expenses incurred under a special contract, the sum recovered must be fixed by its stipulations.</p> <p>3. Findings of chancellor—when, not disturbed. The findings of a trial court, when the testimony is conflicting, will not ordinarily be disturbed on appeal unless clearly against the preponderance of the evidence.</p> <p>4. Contract—what does not justify abandonment of. A partial neglect or refusal by one party to comply with one of the unsubstantial terms of the contract, does not justify the other in abandoning the same.</p>

<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, 1903.</p>

<p>Bill of interpleader. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County, the Hon. Edward F. Dunne, Judge, presiding, Heard in the Branch Appellate Court at the October term, 1903.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>1. Additional record—when Appellate Court without jurisdiction to permit filing of. Where the appellant, on or before the second day of the term to which the appeal is taken, does not file a transcript showing the existence of the judgment or decree appealed from and the formal requisites to transfer the cause from the trial to the Appellate Court, the latter court is without jurisdiction to permit the filing of an additional transcript.</p>

<p>Bill to set aside fraudulent conveyance. Appeal from the Superior Court of Cook County: the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>Action of covenant. Error to the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding. Heard iñ this court at the November term, 1903.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>1. Administration Act —section 81 construed. This section of the Administration Act construed to apply only to that property of a decedent owned at the time of his death which has not at the time of the petition filed thereunder been reduced to possession by the executor or the administrator, and has no application where such personal representative has once had possession of the property involved in the petition and has lost or parted therewith.</p> <p>2. Administration A.on—pleading under section 81. A proceeding under this section of the Administration Act is regarded as of an equitable nature, and pleadings filed thereunder are to be treated and regarded as pleadings in equity.</p> <p>3. Administration Act—when sufficiency of affidavit to petition filed under section 81, is waived. Where to such a petition the respondent has interposed a motion to quash, which, being overruled, is followed by an answer, such respondent is deemed to have waived the sufficiency of the affidavit to such a petition.</p> <p>4. Administration Act—when finding under section 81, will not be disturbed on appeal. A finding of fact in a proceeding under section 81 of the Administration Act will not be disturbed on review where the Appellate Court cannot say that the same is not clearly right.</p> <p>5. Party in interest—when, incompetent. A party in interest to a proceeding instituted under section 81 of the Administration Act is incompetent in his own behalf inasmuch as the petitioner proceeds in a representative capacity.</p>

Proceeding under section 58 of the Levee and Drainage Act of May 29, 1879. Appeal from the Circuit Court of Ford County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the November term, 1903.

<p>1. Search warrant—what essential to valid issuance of. It is essential to the valid issuance of a search warrant that the requirements of the statute with respect thereto must be strictly observed, and such observance must appear from the proceeding itself.</p> <p>2. Search warrant—when, void. A search warrant that fails to require the officer serving the same to bring before the justice of the peace who issued it the person in possession of the goods seized, is illegal and void, and this vice in the warrant is not cured by the appearance of such person.</p> <p>3. Search warrant—ivhen, void. A search warrant which commands the officer serving the same to bring the articles taken and the person or persons found in possession thereof to himself “or to some other judge or justice of the peace of the county,” is void in that it does not command- him in the language of the statute to bring such articles and persons “to the judge or justice of the peace who issued the warrant or to some other judge or justice of the peace or court having cognizance of the case.”</p> <p>4. Search warrant— when, void. A search warrant which does not show upon its face a cause in which such a warrant can lawfully issue, is void.</p> <p>5. Search warrant—when, cannot be lawfully issued. A search warrant cannot be.lawfully issued for the purpose of taking gaming apparatus not kept and provided to be used at some gaming house, building, apartment or place within the limits of Illinois, and such a warrant issued without showing a case within the statute is void.</p> <p>6. Contempt proceeding—what beginning of. A petition for an attachment is the commencement of contempt proceedings, notwithstanding they may have arisen as the result of a complaint praying the issuance of a search warrant.</p> <p>7. Contempt proceeding—when petition in, is insufficient. A petition^filed in a contempt proceeding should be certain in every essential particular and should show facts which, if proven, will establish the contempt alleged, and where based merely upon the belief of the petitioner, it is insufficient.</p> <p>8. Contempt proceeding—ivhen answer entitles the respondents to discharge. In a proceeding for a criminal contempt the respondents are entitled to a discharge where by verified answer they deny the allegations of the petition.</p> <p>9. Contempt—tote# essential to establish. Where a contempt of court is charged, it is essential that it appear that the court against whom the contempt is charged to have been committed, had jurisdiction of the case in which it is alleged to have been committed.</p>

<p>Mandamus proceeding. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>1. Accord and satisfaction—what constitutes. When a' party makes an offer of a certain sum to settle an unliquidated claim and attaches thereto the condition that the same, if accepted at all, must be received in full satisfaction of the claim in dispute, and the other party receives the money, he does so subject to the condition attached, and an accord and satisfaction is established. But in such case the proof must be clear and unequivocal that the observance of the condition was insisted upon, and must not admit of the inference that the debtor intended that his creditor might keep the money tendered in case he did not assent to the condition upon which it was offered.</p>

Action on the case for injury to personal property. Appeal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, , Judge, presiding. Heard in this court at the May term, 1904,

<p>Bill to redeem. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1904</p>

<p>1. Alteration of instrument—effect of. Any material alteration made in any instrument in writing by a party having an interest in its performance, or any such alteration made with the assent of such party and without the consent of the other party to such instrument, will avoid the same and discharge the obligee from performance.</p>

<p>Action of trespass de bonis asportatis. Appeal from the Circuit Court of Cook County, the Hon. Murray F. Tuley, Judge, presiding, Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Bill for accounting. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Action of trespass on the case. Appeal from the Circuit Court of Cook County: the Hon. Edward P. Vail, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>1. Suicide—when, will not defeat recovery upon benefit certificate. Where the certificate is not issued subject to a provision that suicide by the member shall work its forfeiture, suicide while sane will not defeat a recovery where the indemnity is made payable to some one other than the insured or his personal representative.</p> <p>2. Assessment—when failure to pay, will not defeat recovery upon benefit certificate. Where at the time of the death of a member an assessment is due and payable, a recovery by the beneficiary will not be defeated where it appears that the by-laws of the society provided for certain days of grace which at the time of such death had not elapsed.</p>