Volume 124 — Illinois Appellate Court Reports

<p>1. Statute of Limitations—what deemed written ■ contract within meaning of. A contract which consists of two parts, a written proposition and a written acceptance, is a written contract within the meaning of the Statute of Limitations.</p> <p>2. New cause of action—when dismissal of one defendant does not create. A dismissal from an action of an unnecessary and improper party defendant does not result in creating a new cause of action.</p> <p>3. Recoupment—when does not lie for failure to complete contract. Recoupment cannot he had for the failure of the plaintiff to complete the contract sued upon where such contract was properly abandoned because of the defendant’s default.</p>

<p>1. Certiorari—lies to review proceedings of Civil Service Commission. Certiorari lies to review the proceedings of the Civil Service Commission.</p> <p>2. Patrolman—when discharge of, hy Civil Service Commission proper. Where a patrolman is charged in writing with conduct unbecoming an officer and after trial is found guilty “as charged,” the mere fact that the charge against such officer included the violation of a rule the existence of which does not appear, does not vitiate the proceedings.</p> <p>3. Patrolman—when laches in presenting charges against, does not appear. The defense of laches in presenting a charge against a patrolman is not established where it does not appear when knowledge of the patrolman’s misconduct came to the official preferring the charge.</p> <p>4. Civil Service Commission—how far rule of, binding upon. A valid rule adopted by the Civil Service Commission is as binding upon it as a positive statutory regulation.</p> <p>5. Civil Service Commission—when without jurisdiction to try patrolman. Where it does not appear that notice of the trial was given as provided by a valid rule adopted by the commission, the commission is without jurisdiction to try the accused.</p>

<p>1. Declaration—when part of files. A declaration not filed ten days before the second term of court is a part of the files in the cause and the defendant pleading thereto waives any objection to the failure to file the same within the time fixed by statute.</p> <p>2. Involuntary non-suit—when plaintiff has suffered- An involuntary non-suit is suffered where the suit is dismissed by the court for the plaintiff’s failure to file his declaration within ten days before the second term. -</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1905.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1904.

<p>Contempt proceeding. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. Sulphuric acid—extent of liability of shipper of, for injury suffered by third party in unloading. A shipper of sulphuric acid is not an insurer of the safety of any person seeking to unload such acid; if such shipper has provided a well-known and reasonably- safe way of unloading a car containing such acid, it has performed its duty.</p> <p>2. Negligence—when not ground for recovery. Where the negligence charged has become remote by the introduction of an intervening efficient cause, no recovery can be predicated thereon.</p>

Action on the case for death caused by alleged wrongful act. Error to the Superior Court of Cook County; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the March term, 1905.

<p>1. Decree—how must he supported. In the absence of a certificate of evidence a decree granting affirmative relief must contain sufficient findings of fact to sustain it. A general statement that the equities of the cause are with the complainant is not sufficient.</p> <p>2. Decree fob divorce—when fatally defective. A decree for divorce is not sufficiently sustained by its own findings of fact where it does not find that the desertion upon which it is predicated was without reasonable cause and continued without reasonable cause for the statutory period.</p>

Bill to compel conveyance of life membership in club. Appeal from the Circuit Court of Cook County; the Hon. Edwabd F. Dunne, Judge, presiding. Heard in this court at the March term, 1905.

<p>Bill to redeem. Error to the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Action of assumpsit. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. Cebtiobabi—lies to review proceedings of Civil Service Commission. Certiorari lies to review the proceedings of the Civil Service Commission. Citing, Chicago v. Bullis, ante p. 7.</p> <p>2. Cebtiobabi—how judgment of Civil Service Commission reviewed upon. A judgment of the Civil Service Commission upon certiorari is reviewed from the record of that body as returned pursuant to the writ; if the record as returned is incomplete, the court issuing the writ has the power to compel such record to be made complete.</p> <p>3. Certiorari—how failure to give notice of application for, should be raised. A failure to give notice of an application for a writ of certiorari should he raised by motion to quash the writ.</p> <p>4. Certiorari—issuance of writ of, discretionary. The issuance of a writ of certiorari rests within the sound discretion of the court and the court may require that its issuance be shown to be necessary to prevent substantial injury to the applicant and that its object would not, if accomplished, be productive of great inconvenience or injustice, and’ often the issuance of the writ is properly denied where the power to issue is unquestionable and where it is apparent error has intervened in the proceedings sought to be reviewed.</p> <p>5. Certiorari—when defense of laches should be raised. In a proceeding by certiorari the defense of laches should be interposed before answer, unless the period of delay is equivalent to the time limited for the suing out of a writ of error.</p> <p>6. Civil Service Commission—is judicial body. The Civil Service Commission is not simply an executive branch of the municipal administration but is a judicial or q«<m-judicial body.</p> <p>7. Civil Service Commission—“cause" for dismissal by, subject to review in the courts. The “cause” upon which the Civil Service Commission predicates a dismissal will be considered and reviewed by the courts, and if such cause be found not a legal ground for dismissal the order of dismissal may be annulled.</p> <p>8. Civil Service Commission—how jurisdiction to discharge must appear. The jurisdiction of the Civil Service Commission to discharge must affirmatively appear from the record of its proceedings.</p> <p>9. Civil Service Commission—when jurisdiction to discharge does not appear. Jurisdiction to discharge does not appear where no notice of trial or waiver of such notice are shown in the record of the proceedings of the Civil Service Commission and it does not appear from such record that the accused was present at the trial.</p> <p>10. Patrolman—what not ground for dismissal of. Failure of a patrolman, within a reasonable time, to pay a mere civil debt, notwithstanding it has been reduced to judgment, is not a legal ground for his dismissal by the Civil Service Commission; dishonesty, fraud, or the like, must appear.</p> <p>11. Judicial, proceedings—presumptions indulged in favor of. All intendments and presumptions will be indulged in aid of the record and proceedings of a court of record.</p>

<p>1. Master’s fees—when allowance of, proper. Held, that an allowance to a master in chancery for considering questions submitted to him was properly made.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Elbbidge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.

<p>1. Bills and notes—duty of party about to receive. A party about to receive a bill or note, if there are any suspicious circumstances, should make inquiry.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunneb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.

<p>1. Bank—when guilty of negligence in making collection. A bank is guilty of negligence in making a collection where it sends-the evidence of indebtedness to be collected to the payor therein named or authorizes the same to be sent to such payor. Held, from the documentary evidence in this case, that the bank authorized the-sending of the evidence of indebtedness to the payor.</p>

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the.Superior Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the- Hon. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p>

<p>Certiorari proceeding. Error to the Superior Court of Cook County; the Hon. George A. Dupur, Judge, presiding. Heard in this court at the March term, 1905.</p>

Action in case for damages, etc. Appeal from the Circuit Court. ■of Cook County; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1905.

<p>1. Promissory note—“dollars” supplied in, ~by construction. By construction, the word “dollars” is supplied after the words “one thousand” in the promissory note involved in this suit.</p> <p>2. Promissory note—effect of introduction of, in evidence. The introduction of a promissory note is prima facie evidence that the payor is indebted to the payee in the amount specified therein.</p>

<p>1. Replevin bond—what not defense to, where replevin action-was dismissed for want of prosecution. The plaintiff by permitting an action of replevin to be dismissed for want of prosecution, thereby loses all right in a suit upon the bond given in such suit, to contest title to the property, except insofar as such right is reserved by statute in mitigation of damages.</p> <p>2. Words and phrases—“now kept or hereafter to he kept," construed. This phrase, as used in a chattel mortgage, construed.</p> <p>3. Chattel mortgage—how far valid upon merchandise. A chattel mortgage upon merchandise which is subject to sale in the course-of business, is valid where possession is taken thereunder prior to the intervention of the rights of third parties.</p> <p>4. Reopening case—power of court with respect to. The trial court is vested with discretionary power to permit a case to be reopened for the purpose of introducing additional testimony.</p>

<p>1. Negligence—when alighting from moving street car is, when is not. While it is not negligence per se as a general proposition for a passenger to alight from a moving street car, yet the circumstances under which it is done may make it so.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County, the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.

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

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Richard S. Farrand, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Henry B. Willis, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. February 9, 1906, on motion of appellee, order and judgment of reversal and remandment vacated and judgment reversed; demurrer to plea of Statute of Limitations overruled; appellee stands by demurrer and judgment here on plea.

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. Wages—when probationary patrolman cannot recover alleged arrearages of. A probationary patrolman who has received and receipted for a specified sum as full payment for his services without protest to the proper official, cannot recover an additional sum claiming that the same had been appropriated and provided to be paid to himself and others similarly situated.</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard ip this court at the March term, 1905.</p>

Criminal prosecution for resisting an officer. Appeal from the Criminal Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the March term, 1905.

<p>1. Homestead loan association—by whom by-laws cannot be ■made. The board of directors of a homestead loan association have no power to enact by-laws:</p> <p>2. Homestead loan association—when manner of fixing premium by, invalid. The adoption of a resolution by the board of directors of a homestead loan association fixing the rate of premium to be paid for loans made from such association is not valid and does not constitute a compliance with the amendatory act of 1891 authorizing the rate of premium to be fixed by by-law.</p>

<p>Action of covenant. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Separate maintenance proceeding. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dustne, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Certiorari proceeding. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Criminal prosecution for conspiracy. Error to the Criminal Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1904.</p>

<p>1. Interpleader—when decree in action of, final for purposes of appeal. Where the decree entered pursuant to a bill of interpleader adjudges that such bill was properly filed, dismisses the complainant out of court with its costs as having no further interest in the controversy and adjudges that the bill be taken as confessed as to certain defendants, it is as to the complainant and such defendants final and appealable.</p> <p>2. Interpleader—when hill of, lies. A bank holding money upon which it makes no claim, but which is claimed by several parties, any of whom may litigate with respect thereto, may properly file and maintain a bill of interpleader.</p> <p>3. Interpleader—effect of allowing hill of, to he taken as confessed. Where a defendant to a bill of interpleader permits the same to be taken as confessed against him, he thereby admits that he has no interest in the fund in controversy.</p> <p>4. Error—what party cannot complain of. A party cannot complain of errors which do not affect him, but which solely concern the interests of another party.</p>

<p>1. Guarantor—what does not terminate liability of. A settlement by the guarantor of one delinquency does not discharge him from liability for another existing at the time of such settlement where not known at such time, either to the guarantor or guarantee, no receipt in full having been given.</p> <p>2. Guarantor—what does not operate as release of. The release of the guarantor is not effected where money in the hands of the guarantee is paid to the principal debtor with the consent of the guarantor.</p> <p>3. Guaranty—what sufficient consideration to support. Where the instrument guaranteed does not become operative until the execution of the guaranty thereof, the consideration for such instrument is the consideration for the guaranty.</p>

Action on the case to recover damages for overflow of water. Appeal from the County Court of Cook County; the Hon. A. J. Clarity, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.

<p>1. Statute of Limitations—effect of voluntary non-suit. The section of the Statute of Limitations which gives to the plaintiff who has suffered an involuntary non-suit the right to re-commenCe his action within one year, does not apply where a voluntary non-suit has been taken.</p>

<p>1. Power of attorney to confess judgment—effect of joint. A joint power of attorney does not authorize or warrant a judgment against one only.</p> <p>2. Power to confess judgment—when joint. A power of attorney to confess judgment contained in a lease made to a man and his wife which appointed an attorney for “ him ” to enter “ his ” appearance, etc., is nevertheless to he construed as a joint power and the word “ him ” read as “ them ” and the word “ his ” as " their.”</p>

<p>1. Assumption of bisk—when instruction not erroneous in ignoring. An instruction which tells the jury that if they find from the evidence that the defendant was guilty of the negligence charged in the declaration, or any count thereof, that the plaintiff was injured in consequence thereof, and that the plaintiff was himself in the exercise of reasonable care for his own safety, they should find the defendant guilty, is not erroneous in ignoring the question of assumed risk, where such question is one of the issues in the cause.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

<p>1. Bill of exceptions—when court without jurisdiction to sign, etc. Where the time limited for the presentation of a bill of exceptions has expired, the court is without power to settle or sign the same; nor can such court extend the time for such presentation by a nunc pro tunc order.</p>

<p>1. Certiorari—when lies. The writ of certiorari only lies to inferior tribunals or bodies exercising judicial functions, and the act to be reviewed must be judicial in its nature and not ministerial and must have pertained to the property rights of the petitioner.</p> <p>2. Public office—not private property. A public office or employment is not private property in this State.</p> <p>3. Civil Service Commission—certiorari does not lie to review proceedings of. A writ of certiorari does not lie to review the proceedings of the Civil Service Commission of the city of Chicago.</p> <p>See City of Chicago v. Bullis, ante, p. 7; City of Chicago v. Condell, ante, p. 64; City of Chicago v. Gillen, ante, p. 210.</p>

<p>Action on the case for personal injuries. Error to the Superior Court of Cook County;' the Hon. Robert W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

<p>Injunction proceeding. Appeal from the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>Bill of interpleader. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p>

<p>Action commenced before justice of the peace.. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Chables M. Walker, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. Garnishment—when claim of interpleader superior. The payee of a check receiving the same in good faith prior to the service of the garnishment process Upon the bank upon which such check is drawn, has a superior claim to the garnishing creditor notwithstanding presentment was not made until after service.</p> <p>2. Garnishment—right to interplead in. The granting of leave to plead in a garnishment proceeding is not wholly a matter of discretion.</p> <p>3. Garnishment—what deemed notice to garnishee of claim against fund in possession. The presentment to a bank of a check is notice to the bank of the claim upon the fund in its hands and if such fund be made the subject of garnishment the claim of the holder of such check should be set up.</p> <p>4. Bill of exceptions—prevails over record proper where in conflict. Where the record is made by the clerk and the bill of exceptions is in conflict as to the terms of the final order, the bill of exceptions prevails.</p>

<p>Certiorari proceeding. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. Building contract—when recovery cannot he had under. No recovery can be had under a building contract where the contractor, -without the consent of the owner, and to his detriment, substantially varied from the terms of the contract in performing the same, nor, under such facts, can recovery be had for work done and material furnished under a quantum meruit.</p>

<p>Mechanic’s lien proceedings. Appeal from the Superior Court of Cook County; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Quo warranto proceeding. Appeal from the Superior Court of Cook County; the Hon. Axel Chyteaus, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. New cause of action—when additional count sets up. Where the original count alleges the duty of the defendant to instruct the plaintiff in the operation of a sausage machine, and its dangers, and the neglect of such duty, an additional count sets up a new cause of action which alleges the duty of the defendant to furnish matting, burlap or other material to make the place where the plaintiff was ordered to work safe for him to do so, and the breach of that duty. Also, an additional count sets up a new cause of action which alleges the duty of the defendant to allow the lever which controlled the belt on the machinery in question to remain free and unattached, and the breach of that duty by causing the lever to be tied.</p> <p>2. Statute of Limitations—when does not lie against minor. A plea of the Statute of Limitations does not lie to an additional count filed in an action instituted on behalf of a minor by his next friend where such additional counts were filed before the expiration of the period allowed by statute for the bringing by such minor of an independent action.</p> <p>3. Errors—when deemed waived. Erfors which are assigned, when not argued, are deemed to have been waived..</p> <p>4. Peremptory instruction—when should not be given. A peremptory instruction should not be given if there be any evidence whatever which with all reasonable inferences and intendments to be drawn therefrom fairly tends to support the allegations of the plaintiff’s declaration.</p> <p>5. Negligence—what essential to cause of action. Negligence which is not the proximate cause of the injury will not sustain a •cause of action for personal injuries.</p> <p>6. Assumed risk—when question of, becomes one of law. The question whether a plaintiff suing his employer for a personal injury had assumed the risk of the danger through which he was injured, becomes one of law for the court only when, conceding as true all that any evidence in the record tends to prove in favor of the plaintiff, it would be apparent to all reasonable minds that such danger was incidental to and connected with, his employment; that it was not concealed or latent, but patent and obvious; that it was not extraordinary and unusual, but usual and incident to the business engaged in as conducted by the defendant • and existed continuously during plaintiff’s employment; and when evidence is wanting tending to show that plaintiff ever complained of it, or that the defendant had promised to remedy it, or that plaintiff had been directed specifically to incur it by some particular order at the time of the accident; and when it it is on the contrary proven that plaintiff was then engaged in the regular line of his duties and usual employment; that he was of mature age and of ordinary strength and intelligence.</p> <p>7. Borden of proof—approved instruction upon. The following instruction upon this subject approved:</p> <p>“ The court instructs the jury that while as a matter of law the burden of proof is upon the plaintiff and it is for him to prove his case by a preponderance of the evidence, still if the jury find that the evidence bearing upon the plaintiff’s case preponderates in his favor, although but slightly, it would be sufficient for the jury to find the issues in his favor.”</p> <p>8. Right of recovery—approved instruction upon. The following instruction upon this subject, when part of a series, approved:</p> <p>“ If the jury find from the evidence that the plaintiff has made out his case as laid in the declaration by a preponderance of the evidence, then the jury can find for the plaintiff.”</p>

<p>1. Injunction—when hill for, to restrain intimidation hy pickets, etc., sufficient. The bill in this case held sufficient to sustain the granting of an interlocutory injunction restraining acts of intimidation and violence by pickets.</p> <p>2. Injunction—who proper parties to. A labor union, together with its officers, who advised, counseled and supported the other defendants, and who participated in their acts, is a proper party to a strike in junctional order.</p> <p>3. Injunction—what sufficient ground for inclusion of particular party in. A court need not wait until an overt act has been committed before including a particular party in a strike injunction order; if there is a reasonable fear that a particular party will participate in the unlawful action or actions enjoined against, a suffieient ground exists for the inclusion of such party in the injunction.</p> <p>4. Strike injunction—right of court to make permanent after termination of strike. An interlocutory strike injunctional order may within the discretion of the court he made permanent notwithstanding the difficulties out of which it grew have ceased.</p> <p>5. Strike—when lawful, when not. To strike for any cause or for no cause is not unlawful, hut to issue a strike order for the purpose of establishing a boycott upon some person’s goods, with the intent thereby to injure the business of such person, is unlawful.</p>

<p>1. Personal injuries—landlord’s liability for. The general rule is that the occupant and not the owner as such is responsible for the injuries received in consequence of a failure to keep the premises occupied in repair. To this general rule there are these exceptions: (1) where the landlord has by an express agreement between the tenant and himself agreed to keep the premises in repair, and (.2) where the premises are let with a nuisance upon them, by means of which the injury complained of is received.</p> <p>2. Special interrogatories—what bill of exceptions should show with respect to. A bill of exceptions should show that special interrogatories refused hy the court were submitted to opposing counsel prior to argument; otherwise the presumption will he indulged that it was for failure so to submit the special interrogatories that the same were refused.</p> <p>3. Special interrogatories—when properly refused. Special interrogatories are properly refused which are misleading in form, or double, or which relate to evidentiary as distinguished from ultimate facts, or which assume facts not warranted by the evidence.</p>

<p>1. Cebtiobabi—when common law writ of, lies. The common law writ of certiorari will lie from a superior court to an inferior tribunal exercising judicial or gitcsi-judicial powers, notwithstanding property rights are not involved. It does not lie, however, to inferior tribunals or bodies not exercising judicial or gwasi-judicial functions.</p> <p>2. Cebtiobabi—when action of court in exercising discretion in refusing, will not 8e reversed. Where the power to grant the common law writ of certiorari is discretionary, the action of the court in refusing to grant the same will not be reversed unless a clear case of capricious, arbitrary or wilfully perverse exercise of discretion is made to appear.</p> <p>3. City council—when common law writ of certiorari does not lie to review proceeding of. The common law writ of certiorari does not lie to review the action of the city council in disciplining one of its members for words spoken in debate.</p>

<p>Action of trespass on the case. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Christian County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Fulton County; the Hon. R. J. Grier, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>Application for appointment of drainage commissioner. Appeal from the County Court of Edgar County; the Hon. Walter S. Lamon, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Hancock County; the Hon. J. A. Gray, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>1. Excavations—extent of liability for. The owner of the surface of land can only recover damages up to the time of suit arising from the failure of one mining beneath such surface sufficiently to support the same.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Moultrie County; the Hon. James W. Craig, Judge, presiding. Heard in this court at the November term, 1905.

<p>Judgment by confession. Appeal from the Circuit Court of Shelby County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>1. Sale oe intoxicants—what not defense to action for Joss of support occasioned J>y. Neither the giving of an order by the wife authorizing the sale of intoxicants by the defendants to her husband, nor the fact that she. may have drank with him in the saloon of the defendants, nor the fact that at the time of the sales in question such husband was already an habitual drunkard, consti- . tute defenses to the action by such wife for loss of her means of support.</p> <p>2. Punitive damages—when allowance of, proper. The allowance of punitive damages in an action under section 9 of the Dram-Shop Act is proper where it appear that intoxicants were sold to the husband of the plaintiff with full knowledge that previously he had been confined to an asylum as insane, that such condition was caused by the excessive use of liquor, and that he had been discharged from such asylum as cured.</p>

Bill for injunction, etc. Appeal from the Circuit Court of Ver’milion County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1905.

<p>1. Specific performance—when will not he awarded. Specific performance of a contract to erect a building will not be awarded.</p> <p>2. Reformation—what not prerequisite to. In order to obtain reformation it is not essential that prior to institution of suit for that purpose application for correction of mistake be made to the opposite party.</p> <p>3. Reformation—what does not exclude equitable jurisdiction. The mere fact that a remedy at law exists does not exclude the jurisdiction of equity to reform.</p> <p>4. Assessment of damages—when court upon denying specific performance should not retain hill for. Where specific performance of a contract to erect a building is denied, the court does not err in refusing to retain the bill for the.purpose of assessing the damages for the non-performance of the contract where the entire bill is framed upon the theory of the existence of the contract in question.</p>

<p>1. Safe deposit company—care required of. A safe deposit company, in the absence of contract, is held to the exercise of ordinary care.</p> <p>2. Contributory negligence—when instruction as to, proper. It is proper to instruct the jury as to the contributory negligence of a depositor in a safe deposit vault where it appeared that such depositor had at certain times the exclusive care and control of his box.</p> <p>3. Contributory negligence—robere complaint cannot he made as to submission of question to jury. A party cannot complain of the submission of the question of contributory negligénce where he has caused such question to be submitted by instructions asked upon his own behalf.</p> <p>4. Special interrogatories—when submission of, cannot be objected to. The submission of special interrogatories cannot be complained of where they are not answered by the jury.</p> <p>5. .Special interrogatories—when failure to answer, cannot be complained of. Where no complaint was made in the trial court of the jury’s failure to answer special interrogatories, none can be made on appeal.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Cart, Judge, presiding. Heard in this court at the March term, 1905.

<p>1. Chattel mortgage—when invalid as against third parties. A chattel mortgage is invalid as to third parties which permits the possession of the property pledged to remain with the mortgagor, if such mortgage is not recorded in the county in which such mortgagor resided at the time of its execution.</p> <p>2. Instruction—must not ignore material issue. An instruction which concludes with a direction to the jury to find in a particular way if certain facts are found, must necessarily contain all the facts which will authorize a verdict.</p>

Action commenced before justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Elbbidge Hanecy, Judge, presiding. Heard in this court at the March term, 1905.

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Albert Akers, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Garnishment proceeding. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1905.</p>

Action on the. case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding. Heard in this court at the March term, 1905.

<p>1. Vebdict—court has power to authorize sealing of. The court has power notwithstanding the absence oí counsel to authorize the jury to return a sealed verdict and to separate.</p> <p>2. Jury—court has power to order second retirement of. The court, after the jury have returned a sealed verdict and separate, may direct them again to retire and severally sign answers to special interrogatories which as returned were signed only by the foreman.</p> <p>3. Peremptory instruction—when motion for, appropriate method of reaching defective declaration. A motion for a peremptory instruction is a proper way to reach a defect in a declaration where such defect is of a character to require an arrest of judgment.</p> <p>4. Declabation—what primary test in determining whether, sufficient to support verdict. The primary test as to whether a declaration is sufficient to support a verdict is whether it by reasonably intelligible allegations apprises the opposing party of the case to be made against him.</p> <p>5. Declaration—when sets up cause of action. A declaration sets up a cause of action which alleges' that the defendant was constructing a building, that it employed the defendant as a laborer to do work for it on said building and near to a derrick that was used to unload iron columns from a car near said building, that while the plaintiff was discharging his necessary duties in the employment of the defendant, the derrick, by reason of the carelessness and negligence of the defendant, fell down on the plaintiff and injured him.</p> <p>6. Assumed bisk—when question is one of la'w. If, conceding to be true all that the evidence tends to prove in favor of the plaintiff, it would be apparent to all reasonable minds that such dangers as the evidence thus, tends to prove, were incidental to and connected with his employment, that they were not concealed or latent, but patent and obvious, that they were not extraordinary and unusual, but usual and incident to the business engaged in as conducted by the defendant, and existed continuously during the plaintiff’s employment, and if there is no evidence tending to show that plaintiff ever complained of them or that the defendant had promised to remedy them, or that the plaintiff had been ordered to incur them by some particular and especial order at the time of the accident, but on the contrary it is proven that he was then engaged in the regular line of his duties and usual employment and that he was of mature age and of ordinary strength and intelligence, then the question of whether he understood and appreciated the danger is answered by a conclusive presumption, and the assumption of risk by the plaintiff bécomes a matter of law for the court to assert.</p> <p>7. Special interrogatory—when properly refused. A special interrogatory which does not concern an ultimate fact and which is not decisive of the case, is properly refused.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Action of replevin. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Petition for writ of ne exeat. Appeal from the Superior Court of Cook County'; the Hon. Theodore Brentano, Judge,* presiding. Heard in this court at the March term, 1905.</p>

<p>1. Pleadings—when irregularity of, on issues, will he disregarded. Where the issues on,the pleadings are not made up in accordance with the common law or the statute, they will be treated as regular where the parties have so treated them.</p> <p>2. Licenses—mayor's power to revoke. The city council is empowered by statute to license and regulate the selling of intoxicating liquors; it has power to authorize the mayor to issue and revoke licenses and when the mayor issues or revokes a license he exercises a discretionary power, and is acting as the agent or arm of the council.</p> <p>3. Saloon license—when revocation of, proper. The revocation of a saloon license is proper because of the conviction of the holder thereof under an ordinance which provides as an additional penalty that the license of the defendant shall be revoked, and this notwithstanding an appeal has been taken from such conviction which remains undetermined.</p> <p>4. Mandamus—does not lie to review exercise of discretionary power. Mandamus does not lie to review the exercise of the discretionary power exercised by the mayor in revoking a saloon license.</p> <p>5. Mandamus—when does not lie. Mandamus does not lie unless the petitioner shows a clear legal right to the relief prayed for.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Julian W- Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

<p>Appeals from interlocutory orders of injunctions. Appeals from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.

<p>1. Personal property—when title to, passes. The title to personal property sold subject to trial does not pass to the vendee.</p> <p>2. Personal property—when vendee not liable for purchase price. Where personal property has been sold and delivered subject to trial by the vendee and the same is destroyed prior to final acceptance by the vendee, the vendee is not liable for the purchase price.</p>

<p>1. Pledge—when wife not estopped to deny validity of, made by her husband. Held, from the evidence in this case, that the owner of stock, being the wife of the pledgor thereof, was not estopped to deny the authority of such pledgor to make the pledge in question.</p>

<p>Mechanic’s lien proceeding. Appeal from the Circuit Court of ■Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

Action commenced before justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Elbridse Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.

<p>1. Final decree—when entry of, proper upon overruling demurrer. When certain defendants to a cause have demurred to a bill and such demurrer has been sustained and the cause with respect to the other defendants subsequently goes to proof upon the allegations of such bill, a final decree against such demurring defendants is proper where the Supreme Court sustains the findings of fact and reverses the action of the court in sustaining such demurrer and remands the cause with direction to proceed in accordance with the views expressed.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.

<p>1. Foemee decision—when binding in subsequent appeal. The decision, upon one appeal is res judicata upon a second appeal in the same case notwithstanding additional assignments of error may be made raising upon the second appeal questions which were not raised upon the first.</p>

<p>Action commenced before justice of the peace. Error to the Circuit Court of Cook County; the Hon. Thomas C. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

<p>1. Corporate stock—when agreement limiting issue of, valid. An agreement is valid by which the original subscribers to capital stock constitute themselves trustees and undertake that neither themselves nor any subsequent subscriber to the stock of such corporation shall be entitled to and shall receive more than a stipulated number of shares.</p>

<p>1. Restraint of trade—when contract not in. A contract by which one party agrees to manufacture and sell a particular product exclusively to another party, who agrees to take such product, is not in restraint of trade.</p> <p>2. Injunction—lies to enforce negative covenants. Equity will take jurisdiction to enforce by injunction the negative covenants of a contract.</p>

<p>1. Collision—what establishes prima facie case where injury occasioned by.. On proof of the facts that the plaintiff was a passenger on the defendant’s car and that he was injured by reason of a collision between two of the defendant’s cars, a prima facie case is established.</p> <p>2. Credibility of witness—when instruction as to, erroneous. An instruction upon this subject is erroneous which informs the jury that they are at liberty to disregard the testimony of any witness who has wilfully sworn falsely to any matter or thing material to the issues except insofar as such witness has been corroborated by other credible evidence which they do believe.</p> <p>3. Credibility of witness—particular phrase used in instruction as to, condemned. An instruction upon this subject is condemned, but is not held reversible error, which contains the phrase “or has been guilty of wilful or gross exaggeration in his or her testimony about any material matter or thing.”</p>

<p>Divorce proceeding. Appeals from the Superior Court of Cook County; the Hon. Marcus Kavanaoh, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. Commitment fob contempt—what order for, need not provide. An order committing for contempt for failure to comply with a decree of court need not fix a definite period of imprisonment but may provide that such imprisonment shall continue until compliance be made.</p>

<p>Action commenced before justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Axel Chytbaus, Judge, presiding. Heard in this court at the March term, 1905.</p>

Action on the case for personal injuries. Appeals from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1905.

<p>Action of assumpsit. Appeal from the County Court of Cook County; the Hon. Dwight C. Haven, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. Trust deeds—when become liens. Trust deeds not being made to secure actual loans at the time they are severally executed, become liens upon the premises described therein at the time they are severally sold for value.</p> <p>2. Master in chancery—effect of finding of. The finding of a master in chancery is not given the same weight as that accorded to the verdict of a jury; the master’s finding upon the facts is prima facie only, is advisory, and nothing more.</p> <p>3. Master in chancery—when findings of, upon facts, will not be disturbed. The findings of a master upon the facts, where such findings have been approved by the chancellor, will not be disturbed on appeal unless they are clearly and manifestly against the weight of the evidence.</p>

<p>1. Lease—when forfeiture for non-payment of rent cannot he enforced. A tender by the defendant to the landlord, or his agent, of the amount due as claimed within the five days provided by the five days’ notice to quit, if refused will defeat a forfeiture of the lease.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1905.

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Abthub H. Fbost, Judge, presiding. Heard in this court at the March term, 1905.</p>