Volume 119 — Illinois Appellate Court Reports

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Williamson County; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>1. Personal property—effect of possession of. One rightfully in the possession of personal property through a transaction untainted by, fraud, may successfully assert his claim under either a bill of sale or an unrecorded chattel mortgage.</p> <p>2. Error—when deemed waived. An error not relied on in the-motion for a new trial will be deemed on appeal to have been waived.</p> <p>3. Damages—when failure to claim, at the conclusion of a declaration, cannot be taken advantage of. It is too late after verdict to take advantage of an omission to claim specific sum in damages, at the conclusion of the declaration.</p> <p>4. Verdict—when amendment of, by court, proper. The court in an action of debt may amend the verdict by inserting therein, at the proper place, “We find the debt to be $2,000.”</p> <p>5. Sheriff—when need not bring two suits on replevin bond. Where a replevin bond is given to the sheriff to indemnify him, among other things, from claims which may be made against him by two separate parties, he is not required to bring two actions upon such bond but may institute a single action for the use of both of such parties.</p>

<p>1. Subrogation—who not volunteer. One having a contract to purchase land, who is insisting upon its being carried out, is not a volunteer for the purpose of subrogation.</p> <p>2. Subrogation—who not owner of land for purpose of. Where one who has contracted to purchase land redeems the same from an existing lien?, he is not, for the purpose of subrogation, to be deemed the legal owner thereof merely because there has been offered to him a deed of" such land which he did not, and was not bound to accept.</p> <p>3. Subrogation—who not owner of land for purposes of. One who has contracted to purchase land and has redeemed the same from an existing lien, is not deemed the legal owner of the same for the purpose of subrogation where such contract has not been fully carried out.</p> <p>4. Subrogation—who entitled to. A person who, in order to protect his own interests or rights in land, was compelled to pay an existing obligation against the same, is entitled to be subrogated to the rights of the creditor whose debt he paid.</p>

<p>Action on the case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>1. Fellow-servants—when defense of, cannot he raised. A defense that an injury sued upon was caused by the negligence of a. fellow-servant cannot be raised on appeal for the first time.</p> <p>2. Verdict—when not set aside as excessive. A verdict for $3,000 will not be set aside as excessive and as indicative of passion or prejudice where it appears that the injuries were severe and permanent and materially diminished the earning power of the plaintiff.</p> <p>3. Pain—when instruction allowing compensation for, proper. Notwithstanding there may not have been any specific testimony to the effect that the plaintiff suffered pain, yet if the extent of the injury is shown and was of such a character as necessarily to have’, caused pain, an. instruction allowing compensation therefor is. proper.</p>

<p>Action on the case for personal injuries. Error to the City Court of East St. Louis; the Hon. W. J. N. Moyebs, Judge, presiding.</p>

<p>Bill of interpleader. Error to the Circuit Court of Richland County; the Hon. Jacob R. Creighton, Judge, presiding.</p>

<p>1. Propositions of law—effect of absence of. When a ease is tried by the court without a jury and no propositions of law are presented, it will be conclusively presumed on appeal ¿that the trial court correctly applied the law to the facts.</p> <p>2. Finding of court—when cannot be reviewed as to matters of fact. Where the bill of exceptions does not contain all of the evidence heard in the cause, the finding of the court will not be reviewed on appeal as to matters of fact.</p>

<p>1. Public grist mill—what not a. A mill which was never held out to the public as one where persons could get grain ground by the grist and for toll and which was neither intended nor equipped to be operated in that way, is not a public grist mill within the meaning of the statute.</p>

<p>Criminal prosecution for wife abandonment. Error to the Circuit: Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Bill to set aside deed. Appeal from the Circuit Court of Fayette County; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Attachment proceeding. Appeal from the City Court of East St-Louis; the Hon. Silas Cook, Judge, presiding.</p>

<p>1. Statute of frauds—when written promise established. Held, that certain, correspondence set out and referred to in the opinion sufficiently established a written promise so as to take it out of the Statute of Frauds.</p> <p>2. Bill of particulars—when omissions in, immaterial. An omission in a hill of particulars of a matter well known to the defendant is immaterial.</p>

<p>1. Insurance policy—burden to establish cancellation of. The burden to establish the cancellation of an insurance policy is upon the party alleging it.</p> <p>2. Insurance policy—when sole ownership clause of, not valid. Held, that the particular contract, the terms of which are set forth in the opinion, did not establish a defense that the plaintiff was not, at the time of the issuance of the policy, the sole and unconditional owner of the property insured.</p>

<p>Action on the case for personal injuries. Appeal from the City Court of Alton; the Hon. Alexander W. Hope, Judge, presiding.</p>

<p>Action of debt. Appeal from the Circuit Court of Jackson Cóunty; the Hon. Wabben W. Duncan, Judge, presiding.</p>

<p>Bill to foreclose. Appeal from the Circuit Court • of Marion County; the Hon. William M. Farmer, Judge, presiding.</p>

<p>Attachment proceeding. Appeal from the Circuit Court of Clay County; the Hon. Truman E. Ames, Judge, presiding.</p>

<p>1. Evidence—when admission of, will not reverse. Notwithstanding evidence may have been improperly admitted, yet where it tended' to prove a fact uncontroverted at the trial, it will not reverse.</p> <p>2. Verdict—when not disturbed. Where the evidence is conflicting, a verdict will not he disturbed except in a plain case, especially-Where two juries have passed upon the case and both have found the same way.</p>

<p>1. Insurance policy—when joint action may be brought on. Where an insurance policy provides that in case of the death of the insured the company will pay to the children of the assured named therein, not that it- will pay to each of them an aliquot part thereof, a joint cause of action thereon may be brought, either by such children or by their personal representatives.</p> <p>2. Insurance policy—death of insured held not to have occurred in such manner as to defeat liability. Held, from the facts of this case, that the court was not justified in disturbing a verdict which found that the assured did not lose his life by reason of unnecessary exposure to danger (a risk not covered by the policy).</p> <p>3. Insurance policy—when does not lapse. Where the insured repeatedly attempted to pay his premium but the agent “firmly believed” that the same was not due, the fact that it was not paid is deemed the fault of the agent and a lapse will not be held to have occurred notwithstanding the premium was actually due.</p> <p>4. Agent—when represents company. An agent clothed with the power of soliciting insurance, delivering policies and collecting premiums, is the agent of the insurance company and not the agent of the insured. Such an agent is a general agent and as such has power to waive forfeitures and conditions in the policy, notwithstanding the provision therein that no agent has such power.</p>

<p>1. Separate instruments—when construed as one. Where two instruments are given at the same time and refer to the same transaction, they will be construed as one.</p> <p>2. Power of attorney—extent of authority to fill blanks in assignment of salary. Held, that the particular instruments set out in this opinion did not authorize the filling of blanks in an assignment of salary for a period other than the specific month therein, mentioned.</p> <p>3. Wages—when assignee of, cannot recover. An assignee of wages cannot recover the amount thereof from the alleged employer without establishing the fact that the assignor was in the employ of such alleged employer and that the wages were actually due and unpaid.</p>

<p>1. Discharge in bankruptcy—when action not defeated by. A discharge in bankruptcy will not defeat the right of the assignee of the wages of the bankrupt to recover the same where earned and assigned before the discharge.</p> <p>2. Assignment—when improperly admitted. The admission of an assignment is improper where it appears that it had been executed in blank and that there was a written power of attorney, not produced, supposed to authorize the filling of such blanks.</p> <p>3. Contract—when evidence as to, improper. Parol evidence as to the terms of a contract is improper where It appears that such contract was represented by a writing.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge, presiding.

<p>Bill in chancery to establish right to insurance policy. Appeal from the City Court of Alton; the Hon. Alexander W. Hope, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of St. Clair County; the Hon. Robert D. W. Holder, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit, Court of Madison County; the Hon. Charles T Moore, Judge presiding.</p>

<p>1. Insurance policy—how construed. An insurance policy containing provisions made by the company, for its own benefit, are to be construed most strongly against it.</p> <p>2. Insurance policy—whew award under, will be set aside. In this state courts of equity will set aside awards, not only for fraud and for corrupt practices on the part of the arbitrators or parties, hut for mistake, or wilful misconduct' of the arbitrators.</p> <p>3. Equity—extent of relief granted by. Where" equity properly takes jurisdiction of a case, it will retain such case and administer complete relief with respect thereto.</p> <p>4. Proofs of Loss—when waived. Where the company joins in an arbitration, and sets up an award by way of defense, it thereby waives the policy provisions with respect to proofs of loss.</p>

<p>Action on the case for personal injuries. Error to the Circuit Court of Jackson County; the Hon. Warren W. Duncan, Judge, presiding.</p>

<p>Action of assumpsit. Error to the County Court of Union County; .the Hon. Monroe C. Crawford, Judge, presiding.</p>

<p>1. Verdict—when presumed supported by the evidence. Where the bill of exceptions does not purport to contain all of the evidence, it will be presumed, that the verdict is supported by the evidence heard.</p>

<p>1. Lease—when terms of, as to character of demised premises, may he enforced by injunction. An injunction lies to restrain the use of premises for a dram-shop where the same were demised for use as a grocery store.</p>

<p>1. Change of ownership—when, will not defeat recovery. Where goods have been sold to a person running a business under the. sup-' position that no change in the ownership thereof has taken place, a recovery on account thereof will not be defeated merely because of such a change where made without public notice and without apparent change in the subsequent management of the business, c</p> <p>2. Change of ownership—what not notice of. A statement made to a traveling salesman, not purporting to be a general agent, that a change of ownership has taken place, is not notice to the employer of such salesman selling goods in reliance upon no change of ownership.</p> <p>3. Promise—when, inures to the benefit of a third party. Where one receives a valuable consideration for a promise made to one person for the benefit of a third person, such third person may .enforce the promise.</p>

<p>1. Trustees—when, as successors to original trustees, may maintain action. The successors of original trustees named in a will may maintain an action for royalties accruing under a lease without a formal transfer of such lease having been made to them.</p> <p>2. Trustees—what does not defeat right to recover upon lease. The mere fact that the record does not show that the trustee plaintiffs had given bonds, will not defeat their right to recover upon a lease held by them as trustees of the estate of the deceased lessor.</p> <p>3. Collateral matters—when proof of, immaterial. In an action upon a lease for an unpaid balance of royalties, it is improper to permit comparisons between the output of the mine in question and other mines, especially when all the material conditions and methods are not established as identical.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Washington County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

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

<p>1. Extra hazardous employment—when recovery sustained in,,, action arising by reason of. Held, that the jury were justified in. finding that the plaintiff was under sixteen years of age, was set to do extra hazardous work within the meaning of the statute, was; injured while engaged at such work, and that a recovery could not be defeated in such case by either the defense of assumed risk or that, of contributory negligence.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Richland County; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>1. Children—construction of statute prohibiting employment of, at particular work. Section. 11 of the Act of May 16, 1903, includes by construction the employment at a machine operated by steam power.</p> <p>2. Age—how proof of, may be made. Proof of age may be made by entries in a family bible, notwithstanding such entries were not contemporaneous with birth.</p> <p>3. Age—what Competent to contradict purported. A school record kept by a teacher is competent in connection with her testimony as to the age given by the child at the time of his entry into her school.</p> <p>4. Cross-examination—when improperly restricted. It is improper in an action by one claiming as a child to have been injured while employed at prohibited work, to refuse to permit his father to state whether he had ever given a certificate of the plaintiff’s age to be delivered to the defendant, if he knew that the plaintiff was working for the defendant, and if he knew how long he had been so working.</p> <p>5. Extra hazardous employment—what does not excuse employment of child at. The fact that the child in question had concealed his true age does not relieve his employer from liability in such a case.</p> <p>6. Place of accident—when conditions prior to injury incompe-, tent. It is not competent to permit a witness who did not know the conditions at the place of the injury at the time thereof, to testify to conditions there existing prior thereto.</p>

<p>1. Passenger—duty of carrier towards. A common carrier of passengers is held by law to the use of the highest degree of care consistent with the practical operation of its road. It is bound to do all that human care, vigilance and foresight can reasonably do, consistent with the mode of conveyance, and the practical operation of its road in the exercise of its- business as a carrier.</p> <p>2. Negligence—when carrier has burden to overcome charge of. Where a passenger, while exercising ordinary care for his own safety, is injured by the operation of defendant’s road, the burden is on the defendant to show that the injury was not due to its own. negligence.</p> <p>3. Negligence—how question as to whether overcrowding curs-is, determined. Whether it is negligence for a common carrier of' passengers to permit its cars to be overcrowded, is, ordinarily, a, question for the jury to determine under all the facts and circumstances of the case.</p> <p>. 4. Declaration—how construed. A declaration is construed most! strongly against the pleader when tested by demurrer.</p> <p>5. Right oe recovery—instruction as to, where action was between' passenger and carrier, approved. An instruction upon tins' subject as follow?: “The court instructs the jury that if you believe from the preponderance of the evidence in this case, that the plaintiff, * * * became a passenger on one of defendant’s cars, and that while he was a passenger on such car, he, while exercising due care for his own safety, was injured by the negligence of the defendant, as charged in plaintiff’s declaration; or some count thereof, then in law, the defendant is liable) for such injury, and the jury should so find by their verdict,— approved.</p> <p>6. Instruction—must not ignore any theory of recovery. An instruction concluding with a direction to find for the defendant,, must not ignore any theory upon which the plaintiff might be entitled to recover.</p> <p>7. Excessive speed—tohen evidence tends to prove. Held, from the evidence in this case, that it tended to establish the running of.' the car at an excessive rate of speed.</p>

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

<p>1. Will contest—how right of, conferred. The right to contest a will after probate is purely statutory.</p> <p>2. Will contest—when, must he instituted. A proceeding to • contest a will after probate should be instituted within one year after probate.</p> <p>3. Will contest—what law governs. The law in force when a bill to contest the validity of a will is filed, governs the jurisdiction of the court to entertain the same, and not the law in force when the will was probated.</p>

<p>1. Master’s duty—to control appliances. It is the duty of the-master to control appliances which are under his direction in such manner as not to subject his servant, performing his orders and doing his work, to unnecessary danger.</p> <p>2. Objection—when does not avail on appeal. To avail, on appeal, of an objection, the objector must have insisted upon and obtained a ruling, or it must clearly appear that he insisted upon a. ruling and that the court refused to rule.</p> <p>3. Assumed risk—what evidence competent upon question of-Where the plaintiff in an action for personal injuries was a moulder’s, helper, it is competent to show that he was subject to the orders off the moulder.</p> <p>4. Assumed risk—what evidence competent upon question of-Where the plaintiff in an action for personal injuries was ai, molder’s helper, it is competent upon the question of assumed risk, to show the molders’ duties and the relations of the helpers to them, and this by witnesses whose length of service had not been long, as. the shortness of such service goes to the weight rather than to the-competency of the evidence.</p> <p>5. Special interrogatory—when does not relate to ultimate fact, A special interrogatory as follows: “Could the plaintiff by the exercise of ordinary care on his part, have seen this traveling crane, coming towards him in time to have avoided it,” is properly refused as not relating to an ultimate fact.</p> <p>6. Fellow-servants—who not. Held, that molders and their helpers were not fellow-servants but that the former were as to the-latter vice-principals.</p>

<p>Action of replevin. Appeal from the Circuit Court of Alexander County; the Hon. William N. Butleb, Judge, presiding.</p>

<p>1. New cause op action—when additional counts do not set up. Additional counts filed to a declaration do not set up a new cause of action where upon comparison of such additional counts with the declaration as previously existing it is found that all counts show the same relation of master and servant, refer to the same transaction and injury and allege as the gravamen of the charge the negligence of the master in permitting an entry and roadway to be and remain obstructed.</p> <p>2. Cause op action—what does not bar. A judgment for the defendant upon any particular count or counts of the declaration does not bar the plaintiff’s right to recover upon any good count, or counts remaining in such declaration.</p> <p>3. Error—when party estopped to assign. Where an appellant has withheld an assignment of error from one appeal that might, have been assigned on that appeal, he is estopped and has no right to assign such alleged error and have it considered on a subsequent appeal.</p> <p>4. Error—when party cannot avail of. A party cannot take advantage of an error which he has 'induced the court to make and obtain a reversal by reason thereof.</p> <p>5. Instruction—must not ignore material allegations. An instruction pertaining to the plaintiff’s right of recovery, asked by the defendant, is properly refused where it wholly ignores material allegations of the declaration.</p> <p>6. Instruction—must be supported by the evidence. An instruction is properly refused which is not predicated upon some evidence in the case.</p>

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

<p>Action on the case to recover for damage to crops. Appeal from the Circuit Court of Madison County; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Action under Dram-Shop Act. Appeal from the Circuit Court of 'Williamson County; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>1. Sister state—presumption as to law of. In the absence of proof, it will be presumed that the law of a sister state is identical with that of Illinois.</p>

<p>Contest in court of probate. Error to the County Court of Gallatin County; the Hon. Marsh Wiseheabt, Judge, presiding.</p>

<p>Contest in court of prohate. Appeal from the Circuit Court of Franklin County; the Hon. Prince A. Pearce, Judge, presiding.</p>

<p>1. Highway commissioners—when contract of, not ultra vires, A contract made by highway commissioners with a railroad company for an easement right of way through an embankment thereof, is not ultra vires, but where acted upon by such highway commissioners and fully performed by such railroad company, is valid and •enforceable.</p>

<p>Action on the case for death caused by alleged wrongful act. Error to the Circuit Court of Jefferson County; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Action for injury to personal property. Error to the Circuit Court of Madison County; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>1. Jury—when, should pass on case. Where the evidence is: conflicting upon the material issues, it is proper that the jury should, pass on the cause.</p>

<p>Action for libel. Appeal from the Circuit Court of Madison County; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>1. Assignment—how character of, as security established. The evidence that an assignment was intended by the parties as security for a debt, may be established by their conduct, as well as by their oral statements.</p> <p>2. Pledge—effect of default upon right to redeem. Where an as, signment is made as security for the payment of a debt, the default in such payment does not operate to extinguish all right in the res, but the right of redemption continues until barred by proper procedure.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Jackson County; the Hon. Warren W. Duncan, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit court of Madison County; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>1. Vice-principal—when master liable for negligence of. A master is liable for the negligence of his vice-principal, notwithstanding the negligence of a fellow-servant may, likewise, have contributed to the injury in suit.</p> <p>.2. Appliances—what does not excuse master from duty to exerelse reasonable care with respect to. The duty to use reasonable care with respect to the appliances used by the master is not affected by the fact that the particular appliance claimed as defective, namely, a car, was furnished by a railroad company.</p> <p>3. Instruction-—should not give undue prominence to particular evidence. An instruction should not give undue prominence to particular evidence in the case.</p> <p>4. Instruction—should be predicated upon the evidence. An instruction is improper which is not predicated upon some evidence in the case.</p> <p>5. Instruction—should not ignore any theory of recovery. An instruction which directs a verdict for the defendant, if the jury find a particular state of facts, should not ignore any theory upon which the plaintiff may have been entitled to recover.</p>

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

<p>Action on the case for death caused by alleged wrongful act. Error to the Circuit Court of Madison County; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit -Court of St. Clair County; the Hon. Robert D. W. Holder, Judge, presiding.</p>

<p>1. Peremptory instruction—when, should he given. A peremptory Instruction to find the defendant not guilty should be given in an action on the case for personal injuries where there is no evidence tending to establish any charges of negligence made in the declaration, and the doctrine of res ipsa loquitur is not applicable.</p>

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

<p>1. Railroad crossings—duty of electric railroad company at. The duty of an electric railroad company at railroad crossings is the same as that of steam railroads, where such electric railroad company is organized under the General Railroad Act.</p> <p>2. Judgment—when form of, will not reverse. The mere fact that the judgment in a case is against an administratrix for costs will not reverse, as the error is harmless and readily susceptible of being corrected.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Marion County; the Hon. Truman E. Ames, Judge, presiding.</p>

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

<p>1. Forcible detainer—when Circuit Court acquires jurisdiction of appeal. The Circuit Court acquires jurisdiction of the subject-matter of an appeal from a judgment in forcible detainer where the bond has been entered into before the justice and the bond and transcript duly filed in the office of such Circuit Court.</p> <p>2. Jurisdiction—when Circuit Court has, at particular term. Where an appeal is taken from a judgment of a justice of the peace and perfected so as to give the court jurisdiction of the subject-matter at a particular term, the appellee may, by his voluntary appearance at such term, give the court full jurisdiction of both the subject-matter and the parties.</p>

<p>1. Contributory negligence—when established. Held, from the particular evidence in this case, that the plaintiff was guilty of contributory negligence in going upon a railroad track upon which she was struck and injured.</p>

<p>1. Carrier op passengers—extent of obligation of. A carrier of passengers is bound to the exercise towards its passengers of a high degree of care, and this as well with respect to the operation Of its road as to its roadbed, equipment and appliances.</p> <p>2. Preponderance op evidence—when instruction upon, improper. An instruction upon this subject is subject to criticism where it states that the plaintiff is required by law to establish “his case” by a preponderance of the evidence before he can recover, in place of stating the facts which the plaintiff is bound to establish before he can recover.</p>

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

<p>1. Decree of foreclosure—when Mil will not sustain. A decree of foreclosure which awards a deficiency decree against one of the defendants is not supported by the bill which does not set up facts which show his personal liability upon the debt secured by the trust deed sought to be foreclosed, nor is such a decree supported where the bill does not show that the complainant' was the legal holder of such debt.</p>

Contest in court of probate. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Statement by the Court. Appellee filed a petition in the Probate Court of Cook county in which he states that he recovered a judgment for wages against the deceased of whose estate appellants are executors, in the lifetime of the decedent, for the sum of $14.50, in pursuance of which judgment an execution had been issued and returned no part satisfied.

Frederick A. Smith, Judge, presiding. Statement by the Court. This is an appeal from what is said to be an interlocutory order of the Circuit Court. It appears that appellant filed its bill of complaint in the Superior Court of Cook county for an accounting in reference to a fund alleged to be held by appellee in trust.

<p>1. Judicial proceedings—effect given to, of sister states. The .courts of this state will give the same faith and credit to judicial .proceedings had in other states as are given to them in such states.</p> <p>2. California law—construction placed upon. In California, a provision which provides that a justice of the peace must enter judgmfent at the close of the trial is directory merely.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E.. Gary, Judge, presiding. Statement by the Court. The accident upon which this action is based occurred about eleven o’clock at night on July ,3, 1901, on Van Buren street near State street in the city of Chicago. Appellant has a double street car track in that part of Van Buren street, with a switch connecting the two main tracks.

<p>1. Objection—when comes too late. Where the appellant did not except to the ruling of the court sought to be reviewed, an assignment of error with respect thereto will not he considered.</p> <p>2. Guaranty—what prima facie evidence of consideration for. The words, “for value received,” are prima facie evidence of consideration to support a guaranty.</p> <p>3. Guaranty—what sufficient consideration to support. Where a note is given in renewal of another, upon which the defendant was guarantor, and such renewal note was not accepted until the defendant had guaranteed the same, it is immaterial that the execution of the note antedated the execution of the guaranty.</p> <p>4. Secondary evidence—when admission of, not error. Evidence to the effect that a particular note was given in renewal of another note for like amount is not improper in rebuttal, where a witness called by the complaining party was permitted without objection to testify to similar matters.</p>

Action on the case for personal injuries. Appeal from the Circuit' Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Statement by the Court. Appellant was engaged in operating an electric line of street railway upon and along Indiana avenue in the city of Chicago. Indiana avenue runs north and south and 40th street runs east and west, crossing Indiana avenue at right angles.

<p>1. Assumed risk—what not. Where a servant is injured in complying with a command of a vice-principal, which command was accompanied by a threat of dismissal in the event of disobedience, he cannot be held to have assumed the risk, unless the danger to which he was thus exposed was so great that a man of ordinary prudence would not have incurred the risk; and this question is one of fact to be determined by the jury. ,</p> <p>2. Fellow-servant rule—when does not apply. Where an injury to the servant is the combined result of the negligence of the master and of a fellow-servant, the servant may recover from the master.</p> <p>3. Master’s command—when servant may recover when injured while obeying. The master in such a case is not exempt from liability because the complaint made by the servant prior to undertaking his appointed task referred to ordinary appliances, the use of which were as well understood by the servant as by the master.</p>

Attachment proceeding. Appeal, from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Statement by the Court. . In May, 1901, appellant entered into a contract with the Curtis Sheet Steel & Corrugating Co., of Ohio, (now the Muskingum Valley Steel Co.), by which he was' allowed to sell 500 tons of corrugated material and sheet iron per month, and to receive a commission of 50 cents a ton for goods so sold.

<p>Action of assault. Error to the Criminal Court of Cook County;the Hon. Axel Chytraus, Judge, presiding.</p>

Action of assumpsit. Error to the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Statement by the Court. The plaintiff in error brought an action in assumpsit against the defendant in error upon a promissory note for $110, and on an open account for $464. Judgment was rendered for the plaintiff upon the note only. It appears that the defendant, a real estate dealer, owned 3,300 lots in Franklin- Park, a suburb of Chicago.

<p>1. Obstruction—when corporation maintaining, on public street, liable for injuries resulting from. Notwithstanding such corporation under license from the municipality in which it is located, maintains a plug in a public street, yet if the same constitutes a nuisance and at the time of the injury complained of has so remained for a length of time sufficient to have charged such corporation with notice that it endangered the safety of the public, it is liable for an injury resulting therefrom.</p> <p>2. Contbibutary negligence—when person traveling upon public street not guilty of. A person traveling upon a used and frequented street has a right to presume and to act upon the presumption that such street is reasonably safe for ordinary travel throughout its entire width, and is not bound, at the peril of being held guilty of contributory negligence, to keep his eyes constantly upon the street in search of possible defects.</p> <p>3. Ordinary care—how question of, determined. The question of the exercise of due care, or the want of it, upon the part of the plaintiff, is primarily for- the jury. It is not a question of law to be determined by the court, unless as shown by the evidence the conduct of the plaintiff is so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent. If the case is open to difference of opinion, the jury must pass upon it.</p>

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

<p>1. Eviction—what does not constitute. Where, without intention to deprive his tenant of the premises demised, the landlord, in obedience to law, enters such premises and makes permanent use of a portion thereof for the purpose of erecting fire escapes, an eviction does not result.</p>

Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Statement by the Court. The appellant insured against injuries to the person, fatal or otherwise, caused by “external, violent and accidental means.” March 15, 1898, appellant issued a policy to John 0.

<p>1. Malicious prosecution—when action for, not prematurely brought. Where an action for malicious prosecution is brought, ¡on the same day as the discharge from the prosecution, it will not be held, even in the absence of evidence, that the action was prematurely brought.</p> <p>2. Malicious prosecution—what proof of actual damage in action for. Proof of false imprisonment and malicious prosecution for alleged larceny is proof of actual damage in an action for malicious prosecution.</p> <p>3. Premature suit—when objection of, comes too late. An objection that an action was prematurely brought cannot be raised on appeal where not interposed at the trial nor relied upon in the motion for a new trial.</p> <p>4. Motion in arrest—what questions reached by. Such motion only goes to such substantial defects in the declaration as can he reached by general demurrer.</p> <p>5. Declaration—effect of averment of damage at conclusion of. An averment at the conclusion of the declaration as to the damage of the plaintiff, applies to each particular count thereof.</p> <p>6. Abstract—effect of failure to abstract matter relied upon as error. The court may refuse to rule upon an error where the matter upon which it is predicated is not contained in the abstract.</p> <p>7. Transcript op justice—when competent in action for malicious prosecution. A certified copy of the docket of the justice is competent in an action for malicious prosecution, to show the termination of the prosecution which is made the basis of the action.</p> <p>8. Instructions—when alleged errors in, will not he reviewed. Where counsel do not undertake to point out the alleged defects, the court will not critically examine the instructions for the purpose of ascertaining if there is error contained therein.</p> <p>9. Verdict—when not held the result of passion or prejudice. A verdict will not be held the result of passion or prejudice where no error is assigned that it was the result of such improper influences.</p>

Divorce proceeding. Error to the Circuit Court of Cook County; the Hon. Edmund Burke, Judge, presiding. Statement by the Court. Plaintiff in error and defendant in error were, respectively, complainant and defendant in the lower court, and will be so referred to here.

<p>Forcible entry and detainer proceeding. Appeal from the County Court of Cook County; the Hon. Dwight C. Haven, Judge, presiding.</p>

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

<p>1. Injunction—when, lies to restrain enforcement of ordinance. For the purpose of preventing a multiplicity of suits, an injunction lies to restrain the enforcement of an ordinance not previously declared invalid.</p> <p>2. City council—what within power of. Where a city council has power to pass an ordinance plainly intended to restrict and discourage, as well as to regulate, the sale of a given article—an ordinance forbidding its sale altogether in certain places and to certain persons—it, likewise, has power to add by amendment to that ordinance a simple provision preventing its evasion and practical abrogation.</p> <p>3. Judicial notice—of what taken. The court will take judicial notice that cigarettes are generally made of tobaeco rolled within “small pieces of tissue paper of the size of about 1% inches by 3% inches.”</p>

Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Statement toy the Court. This is an appeal from a judgment for costs in favor of the appellee as executrix of the last will and testament of Phineas I. Mulvaine, deceased. Phineas I. Mulvaine was sued by the appellants in the Circuit Court of Cook county in November, 1900. The declaration contained the common counts.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p> <p>Statement by the Court. This is an appeal from a judgment of the Circuit Court of Cook County in favor of the appellee against appellant for costs. The judgment was on the verdict of a jury, but this verdict was one directed by the court. The action was for the alleged negligence of the appellee, by which the appellant lost his arm. The injury sued for occurred in 1891, when the appellant was a child eleven years old, and the suit was brought when he became of age.</p> <p>The amended declaration on which the cause was tried consisted of three counts. The first count, after reciting that the plaintiff, a child of eleven years, was in the exercise of reasonable and ordinary care and diligence for his own safety for one of his years and experience, on January 31, 1891, a passenger on one of the defendant’s trains from 60th street to 53rd street, avers that the defendant was negligent in that the platform on the end of the car was not protected by a railing or gate, and that “when said train was approaching its usual stopping place at 53rd street station, and after the servant of the defendant had announced 53rd street,” the plaintiff passed out to the front platform of the car “for the purpose of alighting therefrom at 53rd street when the train should stop at the 53rd street station,” and that the defendant “carelessly and negligently caused the brakes to be applied suddenly and with such force and violence that it stopped said train and car with a sudden jerk that threw the plaintiff from said platform to and upon a pile of rocks or stones that was piled at or near the tracks of the defendant, from which plaintiff rolled down against the track,” and received the injuries described and complained of.</p> <p>The second count avers a duty on the part of defendant “to have the tracks and approaches to the platform or stopping place at 53rd street in a safe condition for the plaintiff to alight from said car,” and alleges that the defendant had “negligently permitted a pile of stones or rocks to be-piled up at or near the track of the defendant and close to the platform where it was usual and customary for passengers to alight when desiring to stop at 53rd street,” and that after the announcement of the 53rd street station, the plaintiff went out on the front platform of the car for the purpose of alighting, and that the defendant’s employees so- carelessly and negligently stopped the train and with such a sudden and violent jerk that it threw She plaintiff from said platform to- and upon said pile of stones and rocks,, from which he rolled down against the defendant’s track,” and suffered the injuries complained of.</p> <p>The third count avers a duty on the part of the defendant to have a careful employee in charge o-f the car on which plaintiff was a passenger, and avers that there was no employee of the defendant in the car when the plaintiff left the ear and went on the front platform; that there was no caution or advice given to the plaintiff to caution „ • him from going out upon the platform of the car, after the announcement of the 53rd street station, nor had he knowledge of the stones or rocks piled near the tracks of the-defendant near the point where he proposed to alight at the 53rd street station, nor was he warned as to the danger arising from the rocks or stones piled on defendant’s right of way and alongside of defendant’s track near the-53rd street station, and that when the train approached said 53rd street station it was stopped with a sudden jerk in such a negligent and wrongful manner that the plaintiff' was thrown from the platform and upon a pile of rocks or stones near the defendant’s track and injured.</p> <p>The defendant pleaded the general issue.</p> <p>'At the conclusion of the plaintiff’s evidence the defendant moved the court to instruct the jury to find the issues for the defendant, and the court allowed the motion and so instructed the jury. To this and to overruling the motion for a-new trial, exceptions were preserved.</p> <p>In this court the assignments of error are directed to the action of the court in taking the case from the jury.</p>

<p>Action on the case for personal injuries. Error to the Circuit. Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

Action of trespass. Error to the Superior Court of Cook County; the Hon. Theodore Brentaho, Judge, presiding. Statement by the Court. June 2, 1899, Davis Paint & Wall Paper Company brought an action of trespass in the Superior Court against Henry Stern and John P. Beseler. To a declaration in trespass defendants filed pleas.

Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Statement by the Court.

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p> <p>Statement by the Court. .P. F. Kaehler between February 1 and August 1, 1902, sold and delivered coal to George A. Keiser. On that day the following instrument was executed by the seller and the purchaser:</p> <p>“I, the undersigned, George Keiser, hereby acknowledge myself indebted to Peter F. Kaehler in the sum of $268.19 for merchandise heretofore sold and delivered by the said Kaehler to me, which said sum of $268.19, with interest thereon from the date hereof at the rate of 7$, I agree to pay to Peter F. Kaehler in the following manner, to-wit: Fifty dollars ($50) ¡November 8th, 1902, and ten dollars ($10) every week thereafter until the aforesaid sum with interest thereon is fully paid.</p> <p>I further agree that in case I fail to make the payments in the manner and at the time as hereinbefore stated, that in that case the aforesaid sum of money, or balance due thereon, shall immediately become due and payable.</p> <p>In witness whereof I hereunto set my hand and seal this 31st day'of October, A. D. 1902.</p> <p>Geo. A. Keiser. (Seal.)</p> <p>I, the undersigned, Peter F. Kaehler, hereby consent to the above and foregoing.</p> <p>Witness my hand and seal this 31st day of October, 1902.</p> <p>P. F. Kaehler. (Seal.)”</p> <p>December 13, 1902, Kaehler died. His administrator brought an action before a justice of the peace on "the instrument above set forth and the case was taken by appeal to the Circuit Court. At the trial of the cause- in that court, the plaintiff put in evidence his letters of administration and the foregoing instrument and rested. The defendant called as a witness one Whitehead, who testified that he worked for Kaehler in 1901, that he left his service “a little late in 1901” and that while in such service he delivered to defendant for Kaehler, on several occasions 7,500 pounds of coal for 8,000 pounds. The defendant also put in evidence a bill for coal delivered to him by Kaehler in October and another for coal delivered in ¡November, 1901, both receipted by Kaehler, and an ordinance of the city of Chicago by which it was made an offense for a person engaged in the business of selling coal to deliver to the purchaser less than two thousand pounds of coal for each ton of coal purchased. The judgment "was for the plaintiff and the defendant appealed.</p>

Action on the case. Error to the Circuit Court of Cook County; the Hon. Edwabd F. Dunne, Judge, presiding.' Statement by the Court. In the lifetime of Frank H. Barmm, the plaintiff in error brought against him in the Circuit Court an action on the case. The first count of his declaration charged the defendant with slander, the second with maliciously interfering with the business of the plaintiff. Barmm died after service of the summons and before the return day.

<p>Foreclosure proceeding. Error to the Superior Court of Cook County; the Hon. Theodore Brentabto, Judge, presiding.</p>

Action on the case for personal injuries. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Statement by the Court. Plaintiff prosecutes this writ of error seeking to reverse a judgment upon a verdict in favor óf the defendant in an action to recover for personal injuries.

<p>Action of trover. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p> <p>Statement by the Court. This is an action in trover brought as the amended declaration stated by “Alfred F. Boss for himself and as trustee for Jessie M. Sidway and Cynthia A. Mead and B. W. Ostrander, the plaintiffs in this suit,” by their attorney, etc. The name of Ostrander was not in the original declaration, but was inserted as part of the amendment. The declaration proceeds to say that “Whereas the plaintiff on to wit,” etc.; and ,it continues its averments in the name of the “plaintiff,” until in conclusion it avers that “the plaintiffs afterwards to wit, on the day aforesaid, casually lost said goods,” etc., to the damage “of the plaintiffs.” To this declaration a general demurrer was filed, which appears from the record to have been subsequently overruled, although plaintiffs in error claim that the record has been fraudulently made to show an order which in fact was expunged by direction of the judge who had made it, because made it is claimed under a misapprehension as to notice. Subsequently a default was taken for want of plea, a jury empanelled and a verdict and judgment entered at the June term, 1903. A motion was filed during that term by attorneys for plaintiffs in error to set aside the judgment, but according to the statement in their brief the motion was not entered of record. It was not called up for disposition until the October term following, and was then overruled after a hearing at which affidavits on both sides were read. These are preserved in the record by bill of exceptions.</p> <p>The judgment order recites that the defendants failed to-plead to the amended declaration as required by rule entered June 6, 1903, that “on motion of plaintiff’s attorney, it is ordered that the default of .the defendants be taken and the same is entered of record herein for want of a plea, wherefore plaintiff ought to have and recover,” etc.; that a jury was sworn to assess damages, who “say, We the jury assess the plaintiff’s damages at the sum,” etc.; and that “therefore it is considered by the Court that the plaintiff do have and recover of and from the defendants,” etc.</p>

Action on the case for personal injuries. Error to the Circuit Court of Cook County; the Hon. Alonzo K. Vickers, Judge, presiding. Statement by the Court. This is an action for personal injuries in which defendant in error recovered a judgment which it is now sought to reverse. He was injured in a hashing machine, used for cutting or grinding up lard.

Elbridge Hahecy, Judge, presiding. Statement by the Court. This is an appeal from an interlocutory order granting an injunction against the city of Chicago.

<p>Habeas corpus proceeding. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honore, Judge, presiding.</p>

Bill for accounting. Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Statement by the Court. Defendant in error filed its bill in the Circuit Court of Cook county against plaintiffs' in error for an accounting. For several years prior to the beginning of the suit plaintiffs in error had acted as the agents of defendant in error, in loaning money, collecting interest and in managing and renting property.

<p>Garnishment proceeding. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p> <p>Statement by the Court. This writ of error is prosecuted to reverse a judgment in garnishment rendered against plaintiff in error, Chicago Title & Trust Company, as executor of the will of Sarah J. Wheeler, deceased, and in favor of Charles Gr. Wheeler for use of Kate Elkins Daniels, executrix, etc.</p> <p>On or about January 10, 1902, Sarah J. "Wheeler died, testate, leaving a will wherein she nominated the Chicago Title & Trust Company as executor of her estate. The will bequeathed to Charles Gr. Wheeler, one of defendants in error, a legacy of $6,000. On January 17, 1902, he assigned the legacy to the Chicago Title & Trust Company to secure a loan of $1,500. Five days later, on January 22, 1902, Charles Gr. Wheeler for use of Hettie M. Elkins and Kate Elkins Daniels, executors of the estate of Henry K. Elkins, deceased, instituted a garnishment suit against the “Chicago Title & Trust Company, a corporation, and the Chicago Title & Trust Company, executor of the last will and testament of Sarah J. Wheeler, deceased.” The writ was served on the same day. On January 23, the day after the service of the writ, the Chicago Title & Trust Company filed in the Probate Court of Cook county its petition for letters testamentary on Mrs. Wheeler’s estate. The will was admitted to probate on February 25, 1902, and letters were issued to Chicago Title & Trust Company as executor, on February 26, 1902.</p> <p>On February 25, 1902, Charles Gr. Wheeler assigned his legacy to Augustus W. Wheeler, one of the plaintiffs in error, subject, however,, to the previous assignment to the Chicago Title & Trust Company for the loan above mentioned. ISTeither of said assignments was filed for record in the Probate Court of Cook county until the 26th of February, 1902, after the service of the writ of garnishment in this case, but on the day letters were issued.</p> <p>Pending the suit, Hetty M. Elkins died, and the cause was continued for the use of Kate Elkins "Daniels, surviving executor.</p> <p>The Chicago Title & Trust Company filed an answer in its corporate capacity (not as executor), and upon hearing was discharged. It also filed an answer, sued by the name Chicago Title & Trust Company, executor of the last will and testament of Sarah J. Wheeler, deceased, garnishee, setting up the facts as to the death of Mrs. Wheeler, the naming of the company as executor, the petition for letters, the date of the probate of the will and of the issuance of letters, that the company was not executor of the will when' the writ was served, and prayed the same advantage of its answer as if the facts had been pleaded in abatement of the writ and affidavit, and that the writ and affidavit be quashed.</p> <p>A conditional judgment was entered against the trust company as executor, and the cause was continued until an order of distribution should be entered in the Probate Court. Subsequently the Probate Court entered an order directing the distribution of $2,000 of the legacy and reciting the conditional judgment, and providing that if final ¡judgment should be entered in this garnishment proceeding against the garnishee and the same be not reversed upon appeal, the executor should pay and satisfy the judgment and costs and pay the balance of the $2,000, if any, to August W. Wheeler or his assigns. Thereupon, on proof of the facts above stated, a final judgment was entered in ¡the Circuit Court for the whole of the $2,000 in favor of the nominal plaintiff, Charles G. Wheeler.</p>

Bill for injunction. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Statement by the Court.

Bill in chancery. Appeal from the Circuit Court of Cook County; the Hon. Edwabd F. Dunne, Judge, presiding. Statement by the Court. May 2, 1902, about 400 employees of the Chicago City Railway Company held a meeting for the purpose of forming a division of the Amalgamated Association of Street Railway Employees. Necessarily this first meeting was temporary in its character.

Action on the case for personal injuries. Error to the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding. Statement by the Court. The plaintiff brought an action for personal injuries caused, as he alleges, by the negligence of the defendant. Upon the trial the jury returned a verdict in favor of the defendant. To reverse the judgment entered upon that verdict the plaintiff perfected this appeal.

<p>Action on the case for personal injuries. Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p> <p>Statement by the Court. This is an action on the case by plaintiff in error against defendant in error for injuries sustained by her through the negligence of the defendant. The cause was tried on a single count, called the additional count, and a plea of not guilty. The additional count alleged in substance that on September 1, 1899, the defendant in error was, and for a long time theretofore had been, operating and conducting in the city of Chicago in. said Cook county, a certain place of amusement which the public was invited to attend, and, upon the payment of a money consideration, to enjoy pleasures there afforded, among which amusements was one commonly known as “Shooting the Chutes;” that persons participating in said last-mentioned amusement were conducted to the upper end of a large inclined plane and seated in a boat or car which was conducted and managed by an agent of the defendant in error known as a boatman; that after the persons were seated in the boat or car the same was released and started down said incline plane at a rapid rate and plunged into a large pond of water at the bottom of said incline whence the boat or car was conducted to the bank and the passengers landed; that on said first day of September, 1899, plaintiff* in error, with a party of friends, went to said place of amusement and paid the amount demanded for the purpose of participating in the said amusement of “Shooting the -Chutes;” that she was conducted to the top of the inclined plane by the defendant in error, and that the party, including herself, were conducted to seats in the boat or-ear ; that suddenly, and without any warning or notice, and while in plain sight of the defendant in error or its agent, and before plaintiff in error was seated, the defendant in error negligently and carelessly released said boat or car and started same on its rapid descent of the inclined plane; that it was the duty of defendant in error to see that she was seated and in position before starting said boat or car; that the plaintiff in error was then and there exercising due care and diligence for her own safety; that said boat or car descended said plane and struck the water with such great force and violence as to throw said plaintiff in error into the air and that she fell back in said boat or car with such violence as to permanently injure her; that said sport was represented by defendant in error to the public and to plaintiff- in error as a safe amusement and was generally indulged in as such by the public, though said amusement was known to the defendant in error at the time, though not to the plaintiff in error, to be dangerous and hazardous; that it was the duty of the defendant in error to give notice and not to start said boat until all the passengers therein, including the plaintiff, were properly and safely seated therein, but that defendant in error negligently and carelessly failed to give any such notice and negligently and carelessly released said boat or car before plaintiff in error was safely seated, wherefore she brings suit, etc.</p> <p>Upon the trial the jury returned a general verdict.of not guilty; and two special findings: first, that the plaintiff just before and at the time of the happening of the accident complained of was in the exercise of ordinary care for her own safety; and, second, that the defendant was not guilty of the negligence charged against it in such additional count. From the judgment entered upon the general ver'dict and these special findings the plaintiff sued out this writ of error.</p> <p>The errors assigned are that said verdicts (general and special) are contrary to the law and to the evidence; that the court improperly requested upon its own motion ■ said special findings without having submitted same to the plaintiff in error and without having notified her of its intention so to do; that the court improperly instructed the jury as to the burden of proof as to the negligence of defendant" in error; that the court gave improper instructions to.the jury in' behalf of the defendant in error and refused proper instructions requested by plaintiff in error and improperly ■modified proper instructions asked by plaintiff in error; that the court admitted improper evidence on the part of the defendant in error, and refused to admit proper .evidence on the part of the plaintiff in error; that the court erred in denying motion of the plaintiff in error to set aside said verdicts and to grant a new trial; that the court erred in rendering judgment- in favor of the defendant in-error, and that the record and proceedings are otherwise uncertain, unjust and illegal.</p> <p>The inclined plane or chute mentioned in the pleadings is-about 30.0 feet long, the upper end of which is 60 feet above the pond into which the boat plunges. There are three employees in charge of this amusement—a boatman who stands in the rear of the boat and guides it to the landing after it reaches the water, a boat loader, whose duty it is to see that the passengers are properly and safely seated, and then to signal that fact to the lever man, who .stands near by the boat and controls the lever which detaches the boat from its fastenings, thus suffering it to -descend the chute impelled by the force of gravity. The boat and the people in it are in full view of these three -employees. Under the custom the lever man does not loose the boat until he personally sees that the passengers are ■seated and he has received a second signal of “All right” from the boat loader. The time occupied in the descent is from seven to ten seconds.</p>

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

<p>1. Ultra vibes—when endorsement of note by corporation not. It is not ultra vires a corporation to endorse a note given by its debtor for the purpose of paying a debt due it through the medium of having the same discounted by a bank.e</p> <p>2. President—when authority of, presumed. When the president of a corporation performs therefor an act which it had power to perform, it will, in the absence of evidence, be presumed that such president acted within his authority.</p> <p>3. Election—what does not constitute. Where suit is brought upon the endorsement of a promissory note, and one count of the declaration charges the defendant as an endorser and the other as a guarantor, no election can be said to have taken place by the plaintiff to hold the defendant in either one or the other of such capacities.</p> <p>4. Instruction—must not ignore any theory of recovery. An instruction in an action of assumpsit which ignores any theory of recovery is improper.</p> <p>5. Instruction—must not ignore evidence relevant to the right of recovery. An instruction in an action of assumpsit is erroneous which ignores evidence relevant to any theory upon which a recovery might be predicated.</p>

<p>Action on the case for death caused by alleged wrongful act. Error to the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>1. New cause of action—when additional counts set up. Where the original declaration consisted merely' of the common counts which were judicially held insufficient, an amended declaration containing special counts set up a new cause of action.</p> <p>2. New cause of action—what will not aid, in determination of question as to whether additional counts set up. Neither the affidavit of counsel nor the hill of exceptions filed as the basis of a previous appeal, will be considered in connection with determining whether additional counts set up a new cause of action.</p> <p>3. Appellate Court—bound by decisions of Supreme Court„ The Appellate Court will not consider questions of law as of first impression where such questions have been passed upon and judicially determined by the Supreme Court of the state.</p>

<p>1. Shakes of stock—when re-issuance of, cannot he questioned. Where an association had ample authority to re-issue shares of stock, the party to whom the same were issued cannot raise the question of an abuse of power.</p> <p>2. Shakes of stock—when re-issuance of, valid. Where shares of stock in an association are not purchased at the time they were first offered for sale, and were not paid for in installments, but were purchased at a later date and paid for in full, the transaction is valid.</p> <p>3. Assumpsit—when lies to recover for money had and received. The action to recover money paid by the plaintiff to the defendant, is an equitable action, and only lies when, in equity and good conscience, the defendant should repay the money.</p> <p>4. Estoppel—when operates to preclude action for money had and received. Where a shareholder in an association has voted his shares in favor of the liquidation of such association and has accepted dividends on account thereof, after liquidation, he is estopped to maintain an action for the recovery of the money paid for. such shares.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding. Statement by the Court. This is an appeal from a judgment of the Circuit Court of Cook county in favor of the defendants below (the appellees here) against the plaintiff (the appellant here) for costs. The judgment was on the verdict of a jury in favor of defendants.

<p>1. Abatement—right of defendant to prevent. The defendant or the personal representative of a deceased defendant in a replevin suit may compel the substitution of the executor of the deceased sole plaintiff in such replevin suit.</p> <p>2. Abatement—order decreeing, of action of replevin, improper. Upon the death of the plaintiff in an action of replevin, it is improper to order that the same abate.</p> <p>3. Cause of 'action—when survives. An action of replevin survives the death of the plaintiff.</p> <p>4. Appellate Court—how far former decision of, binding upon. The decision of the Appellate Court is not binding upon it except in the case in which it was rendered.</p> <p>5. Final order—what is. An order which directs that an action abate on account of the death of the plaintiff therein and denying the application of the defendant to substitute the executor of the deceased plaintiff, finally disposes of the cause and may be reviewed by writ of error.</p> <p>6. Scire facias—when issuance of, proper. Scire facias is proper to bring into court the executor of a deceased plaintiff who does not voluntarily seek substitution in an action which survives.</p>

<p>1. Assault and battery—rule of evidence pertaining in civil action for. In a civil action for damages for personal injuries received as the result of an assault and battery where the act or acts which constituted such assault and battery'were not of such a criminal character as might be attended with infamy and were not in any respect felonious, it is only essential that the plaintiff establish his case by a preponderance of the evidence.</p> <p>2. Verdict—when not excessive. A verdict for $5,000 is not excessive in an action for assault and battery where it appears that the plaintiff, a boy of twelve years, sustained a fracture of the skull resulting in partial and more or less temporary paralysis and a permanent, injury.</p>

<p>Criminal prosecution. Error to the Criminal Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p>

Contest in court of probate. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Statement by the Court. E. B. Preston died April 27, 1895, leaving a will, in which he appointed appellees John L. Peterman, Alfred B. Edwards and Ellen M. Preston, his wife, as his executors. Peterman had been in the employ of the deceased as a department manager for some years prior to the death of Preston.

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwen, Judge, presiding.</p>

Action of assumpit. Appeal from the Circuit Court of Cook County; the Hon. Geobge W. Beown, Judge, presiding. Statement by the Court. This is an appeal from a judgment of the Circuit Court in favor of appellees against appellant for $1,368. The cause was tried by the court below without a jury by agreement of the parties. The issues were found for the plaintiffs and their damages assessed at $1,368.

<p>1. Bra. of complaint—when properly dismissed. A bill of complaint is properly dismissed where several pleas are filed thereto to which the complainant elects not to reply, if any of such pleas are good in law.</p> <p>2. Res judicata—when appears. Where it appears that the right and title to an accounting sought has been adjudicated against the complainant in a like proceeding finally disposed of, decided at a time when such right and title were identical with that existing at the time of the filing of the second suit, a plea of res judicata is good.</p> <p>3. Former adjudication—what does not affect bar of. The fact that the claim adjudicated in the first suit could not have been successfully pressed without the filing of a supplemental bill, does not affect the decree therein as a former adjudication.</p> <p>4. Bankrupt—when, may not prosecute claim after discharge. A bankrupt who during the pendency of the bankruptcy' proceeding failed to disclose an existing right of accounting to the detriment of his creditors, cannot after his discharge urge that the title to such concealed asset has revested in him and maintain a proceeding; to collect the same.</p> <p>5. Abandonment of assets—what essential to establish. An abandonment of assets hy an assignee cannot he established in the absence of a «showing of an election hy such assignee so to abandon.</p>

<p>1. Interlocutory order—from what, appeal does not lie. An appeal does not lie from an interlocutory order denying a motion to dissolve an injunction and matters arising upon such a motion cannot he considered upon an appeal from the order granting the injunction.</p> <p>2. Injunction—what essential to granting of. In order to grant •a valid injunction it is essential that the bill of complaint contain a prayer for an injunction in the prayer for process.</p> <p>3. Injunction—against whom, cannot issue. An injunction order -directing the issuance of a writ against a justice of the peace in .his official capacity, is erroneous.</p> <p>4. Collection of judgment—what essential to injunction restraining. It is essential to the entry of an order granting an injunction to restrain the collection of a judgment, that the bill show either ignorance of the plaintiff’s claim or a defense thereto, on the merits, and this regardless of the fact that the defendant in the action in which the judgment was rendered, was, not served with .process.</p> <p>5. Collection of judgment—when injunction restraining, does not Me. An injunction does not lie to restrain the collection of a .judgment entered by a justice of the peace where at the time of ,the obtaining thereof there existed in favor of the complainant a .remedy either by appeal or certiorari.</p>