Volume 118 — Illinois Appellate Court Reports

<p>Action on the case for damage to real property. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding.</p>

<p>1. Finding op court—when, not disturbed on appeal. ' Where the testimony is wholly oral and conflicting and irreconcilable, the Appellate Court will not, in the absence of error, disturb the finding of the trial court.</p> <p>2. Accord and satisfaction—taken, established. Where a claim is not disputed and a check in settlement is offered and accepted, which, upon its face, recites that it is to be in full settlement, an accord and satisfaction results; and this notwithstanding the payee in such check was not able to read.</p>

<p>Action on the case for personal injuries.' Appeal from the Circuit Court of Cook County; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. John L. Hbaly, Judge, presiding.</p>

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>1. Corporate assets—when equity will follow. If the officers or stockholders of a corporation form another corporation and transfer the good will, business and assets of the old corporation to the new one without paying the just debts of the old, equity will follow such property into the new corporation and subject it to the payment of such debts the same as though no transfer had been made.</p> <p>2. Final order—general rule as to what is not. The general rule is that an order of court dismissing a bill as to one party is not a final order, and cannot be appealed from until the case is fully disposed of as to all other parties.</p> <p>8. Final order—exception to general nile as to what is not. Where, under the particular circumstances of the case, it would be a great hardship upon appellant,' if not a denial of justice to him, to dismiss the appeal, and prima facie he is entitled to relief upon the merits, the court will refuse to order a dismissal even though the judgment appealed from does not completely dispose of the case in which it was entered.</p> <p>4. Final order—how character as such, determined. The essence of what is done by the decree, and not what it may be called, determines whether or not it is final.</p> <p>5. Consolidation of corporations—when, does not appear. Held, that the allegations of the bill filed in this cause, admitted by the demurrer, show not a consolidation of corporations, but the succession of one corporation by another.</p> <p>6. Consolidation of corporations'—when cannot be effected. There is no statutory power in this state under which an Illinois corporation may be legally consolidated with a foreign one.</p>

<p>1. Sale of cocaine—when instruction in prosecution for, erroneous. Where the jury have by one instruction been told that they must “ consider all the evidence admitted by the court,” and by another are told “ that if they believe from the evidence that the defendant retailed or sold or gave away any cocaine,” etc., and there is evidence of sales made both before and after the law under which the prosecution is conducted went into effect, error is committed from which a reversal must follow.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p>

<p>1. Instructions—when action of court in giving, cannot be reviewed. Errors assigned upon the giving of instructions will not be considered unless all the instructions given are set out in full in the abstract.</p> <p>2. Verdict—when, not disturbed. Where the verdict is not manifestly against the weight of the evidence and where it does not appear that the jury were moved by passion or prejudice, it will not be disturbed upon review as against the weight of the evidence.</p>

<p>1. Demurrer—-when reversal of order sustaining, will be made. An order sustaining a demurrer will be reversed if any count of the declaration demurred to is held sufficient in law.</p> <p>2. Covenant—who may maintain action for In'each of. A tenant of a grantor in a deed to land by which the grantee assumes, among other things, an obligation to construct and maintain a levee and ditch,' may maintain an action against such grantee for a breach thereof.</p> <p>3. Covenant—what not essential to right of assignee of land to maintain action for breach of. It is not necessary that the word “ assigns,” or other equivalent word, should be used in the covenant, in order to entitle an assignee of the land, for the benefit of which the covenant is made, to maintain an action in his own name for breach of the covenant.</p> <p>4. Contract—how to be interpreted. In interpreting a contract, the thing to be ascertained is the intention of the parties, and the court, in endeavoring to ascertain such intention, will place itself 'as nearly as possible in the situation of the parties and in possession of their knowledge of the circumstances under which the contract was made, and for this purpose will, when necessary, call to its aid evidence de hors the contract.</p> <p>5. Parol evidence—when, competent in aid of interpretation of contract. Parol evidence is sometimes competent to enable the court to place itself in the position of the parties at the time of the making of a contract for the purpose of ascertaining their true intention.</p>

<p>Action of replevin. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Action commenced before justice Qf the peace. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Recovery—consistency of allegations and proof , essential to. It is'a rule of pleading, subject to no exception, that a party must recover, if at all, on and according to the case which ho has made for himself in his declaration. He is not permitted to make one case for himself bv) his allegations and to recover on a different cause made by his proof. ‘'I</p> <p>2. Minor—care to be exercised by. A minor is bound to the exercise of such care for his safety as may reasonably be expected of one of his age and intelligence.</p> <p>8. Due care—exercise of, not presumed. The exercise of due care upon the part of one who has lost his life in an accident, will not be presumed from the instinct prompting the preservation of life.</p> <p>4. Elevator—when one boarding, guilty of negligence. One who seeks to board a moving elevator is guilty of contributory negligence.</p>

<p>Action of assumpsit. Appeal -from the Superior Court • of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

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

<p>1. Cross-errors —when, deemed waived. Cross-errors, when not argued, are deemed to have been waived.</p> <p>3. Secondary evidence—when alleged error in admitting, cannot he availed of. An alleged error in admitting seco7idarv evidence of the contents of a document not produced, cannot be availed of on appeal where the party seeking to object thereto has himself proven the existence a/id contents of such document, and this notwithstanding the burden of proof was upon the party offering such secondary evidence to prove the contents of such document.</p> <p>3. Adverse claimants—how equities of, adjusted. It is true that in equitable claims on a fund, stronger equities may overcome the advantage given by priority of time, but they must be really and substantially stronger, their superiority being based on solid legal grounds—not fancied or sentimental ones.</p> <p>4. Assignment—what not want of vigilance so as to destroy prior rights of. No want of vigilance is established against the assignee of an interest in a deceased’s estate by showing that such assignee did not file such assignment in the court of probate, when she had, in fact, filed the same in the recorder’s office and had delivered the original instrument to the executors of the estate.</p> <p>5. Consideration—when marriage deemed a valuable. An existing marriage relation is a valuable and sufficient consideratio7i to support a conveyance or settlement by a husband on bis wife, if it does not affect the claims of creditors existing at the time of the said conveyance or settlement.</p> <p>6. Waiver—when does not postpone rights under assignment. The mere fact that an assignee of an interest in a deceased’s estate, while living with her husband, consented to waive, for the purpose of allowing a partial payment to him, the strict enforcement of her rights under her assignment, does not prevent her from asserting such rights against those with whom she entertained no relations and of whom she had no knowledge.</p>

<p>1. Constructive trust—when not established. Held, from the particular evidence in this case, that a constructive trust was not established.</p> <p>2. Set aside—when conveyance from child to parent mil not be. Where a conveyance from a child to a parent is reasonable, fair, for the best interests of the former, was voluntarily and understandingly entered into and long acquiesced in by him, no ground of public policy demands that it be set aside as constructively fraudulent.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. E. O. Brown, Judge, presiding.</p>

<p>1. Police trial board—effect of errors upon judgment of . If in the progress of a trial had before the police trial board errors have intervened, the utmost effect of such errors is to render its judgment voidable.</p> <p>2. Police trial board—how judgment of, cannot be impeached. The judgment of the police trial board, if voidable only, cannot be impeached in a collateral proceeding.</p> <p>3. Civil Service employe—when not entitled to salary. Where a Civil Service employe has pursuant to a trial before a Civil Service tribunal been discharged, such employe cannot recover any salary for any period ensuing such discharge, notwithstanding errors may have intervened in the progress of the trial which resulted in such discharge, where jurisdiction to render the judgment existed.</p>

<p>1. Negligence—when not éstáblishea. Held in this case as a matter of law that the evidence failed to establish negligence upon the part of the master, where the servant was injured while engaged in the performance of his duty in unloading grain from railway cars into an elevator.</p>

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

<p>1. AssIGN1 ~nT-who may not question. A defendant in an action at law cannot question the validity of the assignment from the plaint-if to the usee by virtue of which the uses thaintains the action.</p> <p>2. OoNSIDs~R&TION--Q1/ect of seat. A seal imports a valuable consideration.</p> <p>3. SEAL~ao INsTRuM~icT-what not essemt'ia~ to constitute. A. recital in the body thereof is not essential to constitute an instrument which is under seal, a sealed instrument in the technical sense,</p>

<p>1. Rent—what does not absolve tenant from liability to pay. Where a tenant wrongfully abandons demised premises, he cannot interpose the want of diligence of his landlord in failing to re-rent the premises as a defense to an action for the rent accruing after such abandonment.</p> <p>2. Continuance—when affidavit for, defective. An affidavit for a continuance is defective where it does not state that there was no other witness than the absent one who can testify to the alleged facts, nor that the alleged facts are true, nor that such testimony would be procured if the case should be continued.</p>

<p>1. Premium—presumption as to payment of The delivery of a policy of insurance is prima facie evidence that the premium mentioned therein has been paid.</p> <p>2. Premium—what waiver of prepayment of'. The unconditional delivery of a policy of insurance is a waiver of the prepayment of the premium provided for therein.</p> <p>8. Insurance policy—what part of. A due bill attached to an insurance policy, executed at the same time with it, constitutes a part thereof.</p> <p>4. Application for insurance—when statements contained in must he construed most strongly against the insurer. When the statements are in the handwriting of the medical examiner of the insurer, they will be taken most strongly against it.</p> <p>5. Application for insurance—ivhen statements in, will not defeat recovery. In this case the state of the application for the policy was held not such as to defeat a recovery upon the policy.</p> <p>6. Official records—when certified copies of, incompetent. A certified copy of official records, purporting to show the cause of the death of an individual, is incompetent, where such copy contains matter and documents not required to be kept by the statute as official records.</p> <p>7. Abstract—effect of insufficiency of. An insufficient abstract is in itself ground for affirmance.</p>

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

<p>Action commenced before justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Exceptions to master’s report—what sufficient by way of. An order, directing that objections filed before a master shall stand as exceptions before the court, is sufficient, and formal exceptions need not be interposed.</p> <p>2. Mechanic’s lien— what contract will support. A contract by which a mechanic agrees to complete his work in about twenty-four days, and by which the owner agrees to pay therefor upon completion thereof, satisfies the requirement of the statute, and will support a claim for a mechanic’s lien.</p>

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

<p>1. Solicitor’s fee—when not taxable as costs in proceeding to ap'point new trustee under will. In such a case where neither the statute nor the will provides for the allowance of any solicitor’s fees, a court of chancery in the exercise of its equitable jurisdiction cannot .tgx as part of the costs in the case the allowance of a reasonable solicitor’s fee to the complainant’s solicitor who brought and prosecuted the suit, where it also appears that the complainant was not a trustee but simply a beneficiary under the will in question.</p>

<p>1. Set-off—token incompetent under pleadings. The defendant cannot make the defense of usury under a special plea and then give evidence tending to prove a set-off under a notice of special matter. In order to render the defense of usury competent, an additional plea of set-off should have been interposed.</p> <p>2. Verdict—interest allowable upon. Interest may be allowed upon a verdict from the time of its rendition to the time of the entry of a judgment thereon, and where such amount not being allowed is more than the equivalent of the excess of the verdict over which it should have been rendered, the error in the verdict is deemed to have been cured.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Action of trespass. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding.</p>

<p>1. Reinstatement—token fen days’ notice of motion for, not essential. Where the Supreme Court remands a cause with directions, nothing remains to be done by the trial court bub to obevsuch mandate, and the statute requiring ten days’ notice of a motion to reinstate, does not apply.</p>

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

<p>Injunction proceeding. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p>

<p>1. Freehold—when involved. A bill to remove a tax deed as a cloud upon, the title to real estate, involves a freehold, and this notwithstanding the appellant by his brief waives all questions in the case which pertain to the matter of freehold.</p> <p>2. Jurisdiction—when cannot he conferred upon Appellate Court. A party cannot by waiving all those questions which pertain to a freehold involved in the case and arguing simply the question of practice therein, confer upon the Appellate Court jurisdiction to hear and determine the cause.</p>

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

<p>1. Inquest of damages—when defendant entitled to notice of. Where the defendant in a case has appeared it is error to hold an inquest of damages without notice to him.</p> <p>2. Default—when entry of order of, erroneous. The entry of an order of default against a party in an action at law is erroneous where the appearance of such party is on file and no notice has been given him of the application for such order.</p> <p>3. Counter affidavits—when improper. It is improper to receive or permit the filing of counter affidavits upon the merits in opposition to a motion to vacate a judgment entered by default.</p>

<p>1. Insurance policy—when conflicting claims to,- will not he adjudicated. Where several parties each claim the ownership of, and tire contingent benefits to accrue from, an insurance policy, one of them, a resident of this state, cannot maintain an action against the other, a non-resident, and without obtaining upon such other personal service, adjudicate finally as between themselves and the insurance company the question of the ownership of and the right to the benefits to arise from such insurance policy.</p>

<p>1. Cross-examination—when restriction of, improper. Questions on cross-examination should be permitted to be answered where they pertain to the subject-matter of the direct.</p> <p>2. Cross-examination—when restriction of, improper. Questions put upon cross-examination which tend to elicit answers which test the statements of the witness previously made upon direct, are proper and should be allowed to be answered.</p> <p>3. Error—what does not cure. The fact that the successful party withdrew his objection, does not cure the error in the court’s ruling in not permitting a proper question to be answered.</p> <p>4. Exclusion of evidence—when ground for reversal. In an action on the case for personal injuries, it is error to exclude evidence which was material as to the condition of the place at which the injury occurred.</p> <p>5. Impeachment—what competent by way of. A written statement containing admissions material to a cause, admitted by the plaintiff to have been signed by him, is competent by way of impeachment; the question of its value is, however, for the jury to determine.</p> <p>6. Assumed risk—when instruction improper as ignoring defense of. Where the defense of assumed risk is relied upon, it is error to give to the jury an instruction which ignores such defense and directs a verdict regardless thereof.</p>

<p>1. Proofs of loss—what does not invalidate. One claiming the proceeds of an insurance policy and making proofs of loss upon account thereof, does not invalidate the same by adding after his personal signature the word “executor,” where it appears that he took oath to such proofs and made claim for the proceeds of the policy in his own personal capacity.</p> <p>2. Proofs of loss—when sufficiency of, cannot be questioned. Proofs of loss cannot be questioned by an insurance company where they have been delivered to it in apt time and are received and retained without objection.</p> <p>3. False statements—when do not invalidate insurance policy. False statements contained in an application for an insurance policy will not defeat a recovery thereon where it does not appear that they were wilfully made and where they constituted, not a warranty, but a representation.</p> <p>4. Motion to dismiss—when particular defense waived by. Where at the close of the evidence in a cause which originated before a justice of the peace a motion to dismiss is interposed, all grounds of defense other than those specifically stated in such motion are deemed to have been waived.</p> <p>5. Premiums—burden of proving non-payment thereof. The burden of proving the non-payment of premiums accruing under an insurance policy is upon the defendant, where the plaintiff was in the possession of and produced the policy sued upon and established, prima facie by evidence the other essentials to recovery.</p>

<p>1. Forcible entry and detainer—approved form of instruction in action of. An instruction as follows : “ The court instructs the jury that if you believe from the evidence that the defendant is holding possession of the premises in question without right, and after the determination of a lease of the said premises, then you must find the issues for the plaintiff,—” approved.</p> <p>2. Forcible detainer—when judgment in, not void. Where the verdict in an action of forcible entry and detainer finds the defendant guilty of withholding the entire premises involved in the suit, while it was undisputed that he withheld but a portion of such premises, a judgment which gives restitution of that part only which he did withhold, is good.</p> <p>8. Instruction—when particular phrase contained in, cannot he complained of. Where an instruction contains a particular phrase which it is alleged was liable to mislead the jury, no complaint thereof can be successfully interposed where other instructions adequately define the meaning of such-phrase.</p> <p>4. Brief—effect of adñiission by. Counsel cannot successfully complain of a lack of proof as to a particular matter in issue where in his brief he has admitted the existence of such fact.</p> <p>;■ 5. Judgment—when scope of, cannot be urged as error. Where a judgment in an action of forcible entry and detainer gives to the plaintiff less than the verdict, the appellant cannot complain (unless the verdict itself was wrong).</p>

<p>1. Punitive damages—what does not show allowance of. The mere fact that the trial judge required a remittitur as a prerequisite to judgment, does not, in an action for an assault, establish the fact that the jury allowed punitive damages.</p> <p>2. Assault—when verdict in action for, will not be disturbed. The amount of damages which may be awarded in an- action for an assault is so largely in the discretion of the jury that it is in extreme cases only that the court is justified in interfering.</p> <p>3. Assault—what essential to establish liability of carrier for. In order to establish the liability of a carrier for an assault committed by one of its servants, it is essential that the plaintiff establish that he bore to it at the time of such assault the relation of a passenger.</p> <p>4. Variance—when ground for reversal. Where there appears a clear variance between material allegations and the proof which was by the defendant pointed out in due time, .a’reversal will follow.</p>

<p>1. Variance—when ground for reversal. Where there appears a clear variance between material allegations and the proof which was by the defendant pointed out in due time, a reversal will follow.</p> <p>2. Passenger—when person does not cease to he. Where a person is riding upon a street car in company with his infant child, he does not cease to be a passenger merely because he has alighted therefrom where he has not been afforded a reasonable time to assist and take from the car such infant child.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Proceeding for interlocutory injunction. Appeal from the Superior Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>Forcible entry and detainer proceeding. Appeal from the County Court of Cook County; the Hon. Linds G. Rdth, Judge, presiding.</p>

<p>Action of debt on replevin bond. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Objections to receiver’s report. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Evidence—when competent as pertaining to facts as distinguished from opinions. Questions which inquire of witnesses concerning the distance they could, at the time of the accident, see objects of the size and color of a wagon, call for evidence of facts and not of opinions.</p> <p>2. Evidence—speed of car competent by ivay of. It is competent to inquire of witnesses and to permit them to testify as to the speed of a car at the time of an accident.</p> <p>3. Cross-examination—when restriction of, not improper. It is not improper for the court to refuse to permit a question as to whether the nlaintiff was present at a trial of an action brought by one injured at the same time with him and did not testify in such action.</p> <p>4. Intention—when proof of, incompetent. It is not competent in an action on the case for personal injuries to show that the motorman did not intend to injure the plaintiff, where no deliberate intention to injure is charged or in issue.</p> <p>5. Vehicles—approved instruction as to rights of, upon car trades. An instruction as follows :</p> <p>“ The jury are instructed, as a matter of law, that the plaintiff and his driver had a perfect right, -while in the exercise of ordinary care for their own safety, to use and travel upon the street where the accident happened, including that portion of it in which the car tracks are laid, being obliged only to get off the. tracks and allow cars to pass when they approached for that purpose, and for such use of the street car tracks by the plaintiff and his driver they were in no sense trespassers upon the tracks of the defendant,”— approved.</p> <p>6. Instruction—“perfect right” as used in, held not improper. The phrase “perfect right,” as used in an instruction, held hot misleading or erroneous.</p> <p>7. Instruction—when giving of, pertaining to credibility of witness, erroneous. It is error to give to the jury an instruction intimating that the employment of the witness by the defendant may have prejudiced their testimony, where there was nothing in the case upon which to predicate such an instruction.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon, John Gibbons, Judge, presiding.</p>

<p>1. Parol evidence—incompetent to vary written contract. Parol evidence is incompetent in a court of law where it tends to show that the plain and express terms of a contract did not truly represent the agreement of the parties.</p> <p>3. Implied contract—when instruction pertaining to, erroneous. An instruction which authorizes the jury to base their verdict upon an implied contract, is improper in a case where it was undisputed that an express contract existed between the parties with respect to the subject-matter of the litigation.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal froth the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>Bill in chancery to compel payment of debts, etc. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Insurance policy— how notice of cancellation should be given. In the absence of any stipulation in the policy as to the manner in which notice of cancellation should be given, actual personal notice must be had.</p> <p>2. Insurance policy—when deemed, not cancelled. Where the policy provides for cancellation at any time by the giving of five days’ notice, a cancellation is not deemed to have been effected where the mailed notice of cancellation was not actually received by the insured five days previous to the loss.</p> <p>3. Insurance policy—when suit upon, may be instituted at any time after loss. Where the insured tenders proofs of loss and the same are returned with a total denial of liability, suit may be immediately brought upon the policy notwithstanding a provision providing for suit only after a lapse of sixty days after the submission of proofs of loss.</p> <p>4 Declaration—when sufficient to authorize recovery upon insurance policy. Held, that the declaration in this case sufficiently averred the location of the property destroyed at the time of the fire.</p> <p>5. Waiver—when declaration sufficiently alleges. Where the policy sued on contained a provision that no suit should be instituted until after full compliance by the insured with its requirements, and the declaration avers that the plaintiff has kept and performed all things in said policy mentioned on his. part to be kept and performed, that the defendant has not paid the loss or damage, and that upon a date averred the defendant informed the plaintiff that it “would not pay any loss whatever under said policy,” such declaration in effect avers a waiver of the sixty-day limitation and dispenses with any need of averring that the time had elapsed.</p>

<p>1. Unlawful speed—what not, at cross streets. Held, in this case, that there was no evidence tending to show that a speed of from seven to ten miles an hour was not a reasonable and lawful rate between cross streets at the midnight hour and at the place involved in this case.</p> <p>2. Traction company—duty of, to exercise care. A traction company while it is in duty bound to operate its cars with reference to what may be reasonably anticipated, yet it is not obliged to guard against what cannot be reasonably expected, as, for instance, a passenger seeking to alight in the middle of a block where the cars of such company . were n'ot expected to stop and upon a side of the car where a train was likely to pass at any moment.</p> <p>3. Guard-rail—effect of absence of, upon question of negligence. A guard-rail upon street cars does not necessarily prevent passengers from alighting from the side of the car upon which it is placed, It is a mere warning against such an act, and its absence is not, as a rale, and was not in this case, the proximate cause of the injury complained of.</p> <p>4. Look and listen—when failure to, contributory negligence. It is negligence for a passenger upon a street oar, when attempting to alight therefrom in the middle of a block and at a point where the cars are not accustomed to stop, and while the same is in motion, to fail, without excusep to look and listen for a car approaching from the opposite direction.</p> <p>5. Contributory negligence—when, question of law. The question of contributory negligence becomes one of law for the court when the undisputed facts with all the inferences that can be justifiably drawn from the evidence in behalf both of the plaintiff and the defendant are such that reasonable minds must, without hesitation or dissent, deem the conduct of the plaintiff which caused the injury clearly and palpably negligent. v</p>

<p>1. Garnishment—what subject to. It is well established in this state that a debt payable outside of this state is subject to garnishment here.</p> <p>2. Garnishment—what subject to. A creditor may by garnishment recover only such indebtedness as his debtor might recover by an action of debt or by an action of indebitatus assumpsit.</p> <p>8. Garnishment—what not subject to. A creditor cannot recover by garnishment an unliquidated sum in damages due from another to his debtor.</p> <p>4. Garnishment—what not subject to. Where the debtor of the creditor proceeding by garnishment has entered into a contract to sell stock to another, upon condition that the title thereto shall not pass until full payment therefor has been made, and by which it is also provided, among other things, that in event of non-payment of installments due upon such stqck the payments made shall be forfeited, and the stock returned, such creditor cannot, by garnishment, reach the interest of his debtor in such contract.</p> <p>5. Garnishment—what not subject to. An indebtedness due from the garnishee to the debtor of the creditor proceeding by garnishment, and others not made parties to the action, cannot be reached by garnishment.</p> <p>6. Contract—when not executed. A contract for the sale of corporate stock is not executed where, among other things, it provides that the title thereto shall not pass and the same shall not be delivered until full payment therefor has been made, where it appears that full payment has not been made.</p>

<p>1. Decree—when not subject to review. A decree based upon a master’s report is not subject to review where no exceptions appear to have been filed to such report, notwithstanding such decree recites that exceptions were filed.</p>

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

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County: the Hon. Jesse Holdom, Judge, presiding.</p>

<p>1. Contributory negligence—what not, as a matter of law, in attempting to cross a street car track in front of a rapidly approaching car. It is not contributory negligence, as a matter of law, for a person to attempt to cross a street car track in front of a rapidly approaching car where it appears that the person must be struck by the car unless it is stopped or slackened in speed.</p> <p>2. Contributory negligence—when instruction upon, erroneous. An instruction upon this subject invades the province of the jury when it tells them that certain facts constitute negligence.</p> <p>3. Instruction—when, properly refused. An instruction which is substantially embodied in other instructions given, is properly refused.</p> <p>4. Verdict—when not excessive. The verdict in this case (which was for $3,150) is not excessive, it appearing that prior to the injury the plaintiff was a strong able-bodied man, notwithstanding his infliction with varicose veins, that by reason of the accident he was severely injured in his back and has since been disabled from performing manual labor requiring the exercise of more than a very moderate amount of strength, and thus prevented from earning his livelihood.</p>

<p>Action on the case for personal injuries, Appeal from the Circuit Court of Cook County; the Edmund Burke, Judge, presiding.</p>

<p>1. Motion to direct—when improper to give, where there are several defendants. Where there are several defendants to an action of tort, it'.is error to instruct the jury to find the defendants not guilty, where the plaintiff is entitled to have the cause submitted to the jury as to one of such defendants.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Grundy County; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Grundy County; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Action on case for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>1. Fraud and deceit—when action does not lie for. An action for fraud and deceit does not lie for the mere breach of a promise.</p> <p>2. Verdict—iohen, should he set aside. Notwithstanding several juries have found the same way, yet a verdict clearly and palpably against the weight of the evidence should be set aside by the court.</p>

<p>1. Sidewalk—mere slippery condition of, does not confer cause of action. The mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not such a defect as will make the city liable for damages occasioned thereby.</p>

<p>Commitment for contempt. Error to the County Court of Lee County; the Hon. Robert H. Soott, Judge, presiding.</p>

<p>Garnishment proceeding. Appeal from the Circuit Court of Stephenson County; the Hon. James S. Baume, Judge, presiding.</p>

<p>1. Contractor—tobera deemed not to have acted under charter powers of railroad company. Where a contractor was engaged in removing earth from a bank at the side of the right of wa.y of a railroad company for the purpose of widening the same, he is deemed not to have acted pursuant to the charter privileges of such company, and therefore he is not to he taken as a servant of such company.</p> <p>2. Independent contractor—when railroad company may avail of doctrine of. Where a contractor at the time of the injury to the plaintiff was performing work for a railroad company, not by virtue of its charter powers in the technical sense, it may avail of the defense of independent contractor by way of defense to the action.</p>

<p>Foreclosure proceeding. Appeal from the Circuit Court of McHenry County; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>Divorce proceeding. Appeal from the Circuit Court of Ogle County; the Hon. Oscar E. Heard, Judge, presiding.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of La Salle County; the Hon. Richard M. Skinner, Judge, presiding.</p>

<p>1. Diversion of water—when confers cause of action. When a person diverts the natural flow of water so that it injures the land of another, he is liable, notwithstanding such land máy, prior to such diversion, have been subject to overflow from heavy rains.</p> <p>2. Instruction—when error in, consisting in failure to limit right of recovery to negligence charged, ivill not reverse. Such an error will not reverse where the declaration is not abstracted and no complaint is made of the admission of evidence pertaining to negligence other than that charged in the declaration.</p>

<p>Action of assumpsit. Appeal from the County Court of Will County; the Hon. Dwight C. Haven, Judge, presiding.</p>

<p>1. Errors—when cannot be considered. Where the abstract does not show the matters upon which the alleged errors are based, they will not be considered by the court on review.</p> <p>2. Amendment—what, authorized by statute. An amendment consisting in changing the cause óf action upon the trial, is within the powers granted by statute.</p> <p>3. Amendment—when party cannot complain of. A party cannot complain of an amendment made upon the trial of a cause unless at the time ho claimed surprise and moved for continuance.</p> <p>4. Title — when no estoppel to deny, arises. The true owner of property is not estopped to deny the paper title of another to personal property unless such true owner by some act or conduct of his has induced the holder of such paper title to act to his prejudice.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of LaSalle County; the Hon. R. M. Skinner, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>1. Insurance policy—ivhai covered by particular description contained. in. A policy which, describes the property insured as “ lumber, laths, shingles and posts contained in their yard,” covers lumber contained in a shed located in such yard.</p> <p>2. Insurance policy-—when parol evidence competent to aid interpretation of. When language used in an insurance policy is equivocal or susceptible of varying or conflicting interpretations, it is proper to ascertain the intention and understanding of the parties by proving by parol facts and circumstances attending its execution.</p> <p>3. Error—when appellant cannot complain of. An appellant cannot complain of an alleged error which his objection has induced the trial court to make.</p>

<p>Petition in chancery. Appeal from the Circuit Court of Will County; the Hon. Charles B. Garnsey, Judge, presiding.</p>

<p>1. Overseer of the poor—binding effect of decision of. The determination by the overseer of the poor that certain persons are entitled to relief, is an official act which is binding upon the county in favor of those who, in good faith, furnish medical attendance or supplies in reliance upon that order.</p> <p>2. Good faith—when presumed. Good faith will be presumed where evidence which tended to prove the same was rejected upon the objection of the party denying good faith..</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Bureau County: the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Bill for specific performance. Appeal from the Circuit Court of La Salle County; the Hon. R. M. Skinner, Judge, presiding.</p>

<p>Action of replevin. Appeal from the Circuit Court of Henry County; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>Bastardy proceeding. Appeal from the County Court of Mercer County; the Hon. William T. Church, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Rook Island County; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Action of assumpsit. Error to the Circuit Court of Knox County; the Hon. George W Thompson Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Kankakee County; the Hon. Robert W. Hilscher, Judge, presiding.</p>

<p>Action on the case for damages to personal property. Error to the Circuit Court of Whiteside County: the Hon. FrankD. Ramsay, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of Rock Island County; the Hon. Embry C. Graves, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of Stark County; the Hon. Leslie D. Puterbatjgh, Judge, presiding.</p>

<p>1. Evidence—what incompetent, as to f airness of election. Particular evidence as to events which occurred before election day, the suspicions of the respective parties and the grounds they had therefor, are incompetent upon a contest of the election in question.</p> <p>3. Election—right of citizens to hold. After election officers provided by law have for five hours failed to open the polls and begin to hold the election, the citizens present have a right to elect another board and proceed to hold an election.</p> <p>3. Incompetent evidence—ivhen admission of, will not reverse. The admission of incompetent evidence will not reverse where the case has been tried by the court without a*jury and there is sufficient competent evidence in the record to justify the finding.</p>

<p>Bill for injunction, etc. Appeal from the Circuit Court of LaSalle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Usurious—when contract is. A contract is usurious which provides that in a particular contingency which may arise an amount of interest larger than the authorized legal rate may be received.</p>

<p>I. Injunction—collusion ground for dissolution of. Where a bill of complaint upon which an injunction is granted is collusivelv filed, an injunction issued thereon is properly dissolved.</p> <p>3. Evidence—method of obtaining, does not affect admissibility of, Notwithstanding papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or may have been otherwise unlawfully obtained, still this is not a valid objection to their admission in evidence if they are pertinent to the issue.</p> <p>8. Solicitor’s fees—how proof of, should be made, tinder suggestion of damages. Where after the dissolution of an injunction hearing is had upon a suggestion of damages, it is indicated by the court as the best practice, to show what, if any, specific fee for obtaining dissolution was agreed upon.</p>

<p>1. Notice of injury—when receipt of premium does not ivaive, A receipt of a premium without knowledge of the injury theretofore suffered by the assured, will not waive compliance with the conditions of his certificate.</p> <p>2. Forfeiture—when non-payment of premium works. Non-payment of the premium due under a benefit certificate works an absolute forfeiture, where the member upon becoming delinquent has not the right to reinstatement by removing such delinquency, but must, among other things, show good health and have the concurrence of an officer of the company.</p> <p>3. Forfeiture—what tends to show waiver of right of. The receipt of prior delinquent payments without objection, without reinstatemént, without ascertaining whether the insured is still in good health, and without any action by the secretary or board of directors exercising an option in regard to his reinstatement as provided by the by-laws of the society, tends to show that the society had waived the right to enforce the forfeiture.</p>

<p>1. Common carriers—when instruction erroneously stating duty of, constitutes harmless error. An instruction as follows: “ * x" all that human care, vigilance and foresight could reasonably do under the circumstances and in view of the character of the mode of conveyance adopted,’’.notwithstanding it erroneously states the rule of care, required, constitutes harmless error inasmuch as the proof showed a clear case of liability.</p> <p>2. Verdict—when excessive. A verdict for $2,013 is excessive where it appears that the injury received consisted only of the scraping of the plaintiff’s skin from her arm and knee, some bruises and pain, and the evidence as to the permanency of the injury is unsatisfactory.</p>

<p>1. Personal property—when owner of, not in possession, may claim, as against judgment creditor. Notwithstanding a purchaser of personal property may not have reduced it to possession, yet he is entitled to recover the same as against a judgment creditor who acquired his rights in the cause of action reduced to judgment with notice of the rights of such purchaser.</p>

<p>Foreclosure proceeding. Appeal from the City Court of Aurora; the Hon. John L. Healy, Judge, presiding.</p>

<p>Quo warranto proceeding. Appeal from the Circuit Court of Henry County; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>Action of assumpsit, Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Passenger—when company liable for ejection of. While a conductor of a street car is justified in ejecting a passenger for the use of vulgar and indecent language to the annoyance of other passengers, still, if he employs excessive force, or other unreasonable means, or removes the offending passenger under circumstances likely to cause injury, and injury is caused, the company will be liable.</p> <p>2. Verdict—token not excessive. A verdict of §1,100 is not excessive in an action on the case for the unlawful ejection of a passenger, where it appears that such passenger, as the result of such unlawful ejection, received an injury to his back and hip, became lame, was to some extent incapacitated from pursuing his occupation, suffered pain, and required treatment at the hands of a physician.</p>

<p>1. Cattle—duty of railroad company to avoid injuring, when wrongfully upon right of way. The only duty which a railroad company owes to the owner of cattle wrongfully upon its right of way, is to use all reasonable care to avoid injuring the same after they are discovered upon the track.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Grundy County; the Hon. Samuel C. Stoug-h, Judge, presiding.</p>

<p>1. Evidence—when admission of, not error. Notwithstanding evidence admitted may have been improper, yet the error in the admission is harmless if the fact which such evidence tends to prove was fully established by other competent evidence.</p>

<p>Action of debt. Appeal from the Gounty Court of Rock Island County; the Hon. Elwin E. Parmenter, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Kankakee County; the Hon. Charles B. Garnsey, Judge, presiding.</p>

<p>1. Final order—what not, for purposes of appeal. An appeal does not lie from an order dismissing a bill as to one of several defendants while the same remains pending as to another defendant, except in case of great hardship.</p>

<p>1. Fraud—what essential to establishplea of. Where a plea sets up that a contract was obtained by.fraud, it is essential that there be proof of representations, falsity, scienter, deception and injury.</p> <p>3. Evidence—when collateral transactions competent. Collateral transactions are sometimes competent for the purpose of showing intent.</p>

<p>1. Fraud—what plea of, must set up. The plea of fraud in procuring the execution of a written instrument must set out the facts from which the legal conclusion of fraud is to be drawn in order that the party may be notified of the evidence he is expected to meet.</p> <p>3. Fraud—great latitude of examination allowed where charge of, made. Where a charge of fraud is made by way of defense to an action, great latitude is allowed in the proofs, and especially is this true in the examination of the parties charged with the fraud.</p> <p>8.. Fraud—what does not constitute. The mere breach of a promise to do some act in the fnture will not sustain a charge of fraud, even though relied upon.</p> <p>4. Common counts—when sufficient. Recovery may be had under the common counts when nothing remains to be done except the payment of money.</p>

<p>Action of case. Appeal from the County Court of DuPage County, the Hon. Linus C. Ruth, Judge, presiding,</p>

<p>1. Street—when municipality not liable for injury received upon. A municipal corporation is not liable for an injury received by a person crossing planks placed over an excavation where it appears that such planks were level, smooth and strong, and where the only negligence charged was the fact that the planks sagged and by reason thereof such person tripped and fell.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of LaSalle County; the Hon. William H. Hinebaugh, Judge, presiding.</p>

<p>Mandamus proceeding. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>1. Bills op lading—when provisions of, do not restrict liability of carrier. Where the evidence does not show that the bills of lading constituted a contract between the shipper and the carrier, restrictioris upon the carrier’s common-law liability contained in such bill of lading will not affect the rights of the shipper.</p> <p>2. Carrier—implied promise of. Where the carrier received merchandise and undertook its delivery, there is an implied promise safely to carry and deliver the same without delay to the consignee.</p>

<p>1. Warranty—when not implied. There is no implied warranty as to quality by a vendor who is not a manufacturer.</p> <p>2. Acceptance—what evidence of, of machinery. The continued use of machinery for a period of two years is evidence of the acceptance thereof.</p> <p>3. Set-off—what not proper subject of. An amount paid by the defendant for the repair of a machine purchased from the plaintiff cannot be set off against the plaintiff in an action for the purchase price where such work was done pursuant to an agreement between the defendant and the manufacturer of such machine who had supplied it to the plaintiff for delivery to the defendant.</p> <p>4. Interest—what unreasonable and vexatious delay to justify. Unreasonable and vexatious delay of payment such as will justify the allowance of interest appears as to an amount in suit which both prior and subsequent to suit was conceded to be due and was withheld merely to force a settlement of the amount disputed.</p> <p>5. Interest—when account stated,. Where a portion of a claim had been conceded by the defendant, such portion is deemed to have been stated and interest is allowable thereon.</p>

<p>Action commenced before justice of the peace.' Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Willard M. Mc-Ewen, Judge, presiding.

<p>1. Deposition—when certificate of official character need not accompany. It is not necessary that a certificate of the official character of the officer taking a deposition, accompany the same, where the dedimus is addressed to a specified individual who was in fact an officer authorized to take the deposition.</p> <p>2. Deposition—when certificate of official character may be attached to. The certificate of the official character of the officer who has taken the deposition may he attached thereto at any time before it is read in evidence.</p> <p>3. Deposition—what certificate to, need not certify. It is not essential that the cerifícate attached to a deposition certify that the notary who took the same was authorized by the laws of the state where he resides to administer oaths.</p> <p>4. Evidence—when letters competent as. Letters of one party to the suit addressed to him by the other party thereto, where relevant, are competent, regardless of how received.</p> <p>5. Waiver—what evidence sufficient to establish. Slight evidence is sufficient to establish the waiver by an insurance company of a clause in its policy requiring suit to be brought thereon within a specified time.</p> <p>6. Waiver—when established. Held, from the facts in this case, that the defendant company waived the provision of its policy requiring suit to be brought thereon within the time specified therein.</p>

<p>Action commenced before justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p>

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

<p>Appeal from order decreeing receiver to turn over funds. Appeal from the Circuit Court of Cook County; the Hon. Edward O. Brown, Judge, presiding.</p>