Volume 125 — Illinois Appellate Court Reports

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1905. Statement i$y the Court. This is an appeal from a judgment of the Superior Court of Cook County in favor of appellee against appellant for $4,000. It was entered on the verdict of a jury in an action for negligence causing personal injuries. The declaration (as amended) contained five counts.

<p>1. NEw CAUSE OF ACTION-When am~endecZ c~ec1aration sets ~p. Wher~ the original declaration sets up a breach of duty in failing to maintain a sidewalk at a place named in a reasonably safe condition, an amended count which sets up a breach of a like duty at a different place, constitutes a new cause of action.</p>

<p>Mandamus proceeding. Appeal from the Circuit Court of Cook County; the Hon, Lockwood Honors, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Bill to set aside will. Appeal from the Superior Court of Cook County; the Hon. Mabcus' Kavaxagbe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

Mandamus proceeding. Error to the Circuit Court of Cook County; the Hon. Edward O. Brown, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement Tby the Court. This writ of error brings before the court a judgment entered in the Circuit Court sustaining a demurrer to a petition for mandamus against the Board of Education of the city of Chicago, and dismissing the petition. The relator, Julius TT.

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 October term, 1904. Statement by the Court. This suit is based upon two fidelity bonds executed by the appellant Knapp as principal and the appellant The American Bonding & Trust Company as surety.

<p>Foreclosure proceeding. Appeals from the Superior Court of Cook County; the Hon. Marcus Kavana'gh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p> <p>Statement by the Court. Ira M. Cobe filed his hill of complaint in the Superior Court against John W. and Lu- ' . cinda Airey to foreclose a mortgage given by them to the Forth American Savings, Loan & Building Company, a Minnesota corporation, on real estate in Cook county, Illinois, which had been sold and assigned by. the receiver of the company to Cobe.</p> <p>The bill represents that on Jannry 11, 1898, Edward B.. Graves was duly appointed receiver of the Eorth American Savings, Loan & Building Company, a corporation organized under the laws of the State of Minnesota, relating to homestead and loan associations, by an order of the District Court of the Second Judicial District of Minnesota, and that he-qualified as such receiver; that on January 11, 1898, said company on the relation of the Attorney General of said State of Minnesota, was duly and legally declared insolvent and was unable to carry out the purposes for which it was organized; that under the laws of Minnesota and the by-laws of the company all borrowers of its funds were required to-be shareholders in an amount equal to the sum loaned, and payments for the shares were to be made in installments of sixty cents per month on each share held by the borrower, and by the maturity of additional shares equal at par value-to the premium bid by the borrowing member for the privilege of loan, etc., and by the payment of monthly installments of interest on the principal sum at the rate of seven per cent., per annum.</p> <p>That on February 4, 1891, John W. Airey being the owner of 24 shares in said company, and being then indebted to-it in the sum of $1,200 for money then advanced to him,, made and delivered to it his note of that date, whereby lie-promised to pay to the company at its office in St Paul, Minnesota, $1,200 after three years and before nine years from date or at the time when 24 shares qf stock should become of the par value of $100 with interest at six per cent, per annum in equal monthly installments, and also agreed to pay the sum of $20.40 each month, of which amount $7.20 was to-be applied on 12 additional shares as premium stock and the-sum of $6 as interest on said $1,200, said payments of dues- and interest to be continued until the series to which said shares of stock belonged should become of the par value of $100; that to secure said loan, etc., he assigned to said company said shares of stock; that under the plan of business of said company Airey bid for the purpose of obtaining priority a premium equal to 50 per cent, of the value of said 24 shares, and to further, secure the payment of said principal sum, interest, premium and dues he mortgaged to said company the premises described therein.</p> <p>On December 22, 1903, by order of said District Court said receiver was directed to sell the assets of said company, and on January 11, 1904, said receiver assigned said securities to complainant.</p> <p>There was due at the time of the appointment of said receiver, from Airey to the company, $849.56, and that there was due at the filing of the bill said sum with interest there•on at 1 per cent, per annum and $100 attorneys’ fees, mak-' ing a total of $1,306.69; that default existed and foreclosure was prayed.</p> <p>The company’s articles of incorporation, the note and mort•gage, were attached to the bill as exhibits and were after-wards offered in evidence.</p> <p>Airey and his wife filed their joint and several answer in which they set up the defense of usury and set up sections of the statutes of Minnesota under which the company was organized, as follows:</p> <p>“Sec. 1. Whenever any number of persons not less than ten desiring to be incorporated as a building and loan association for the purpose of accumulating the savings and funds of its members and loaning them only the funds so .accumulated, they shall make and execute a written declaration to that effect, etc.</p> <p>“Sec. 3. Each association shall adopt by-laws for its government and therein prescribe the manner in which its business shall be transacted, which by-laws shall be in conformity with the provisions of this act * * *.</p> <p>“Sec. 4. For every loan made a non-negotiable bond or note ■on real estate shall be given, which security shall be in double the value of the loan and satisfactory to the directors and shall be accompanied by transfer and pledge of the shares of the borrower to the association. The shares so pledged shall she held by the corporation as collateral security - *.</p> <p>“Sec. 15. All building and loan associations hereafter incorporate! in this State shall have an authorized capital of two million dollars * *• *.</p> <p>“Sec. 18. On or before the first day of September in each year every building and loan association * * * shall deposit with the Public Examiner a report of its affairs and operations for the year ending on the 30th day of June, immediately preceding; Such reports to be verified * * * and containing the following *. * *:</p> <p>“A detailed statement of assets and liabilities * * *.</p> <p>“Sec. 22. The name ‘Building and Loan’ association * * * shall include corporations * * * doing a savings and loan or investment business, on the building society plan, whether mutual or otherwise, and whether issuing certificates of stock, which mature at a time fixed in advance •or not.</p> <p>“Sec. 25. Any premiums taken for loans * * * shall not be considered or treated as interest, nor render such association amenable to the laws relating to usury.</p> <p>“Sec. 26. Every such association * * * are hereby prohibited from' hereafter creating or issuing preferred or non-contributing stock * * *.</p> <p>“Sec. 30. Every such association shall provide in its bylaws in what manner applications and bids shall be received and who shall be entitled to loans thereunder; such bids' shall be open at said times, and all the money in the loan fund shall be loaned upon such bids provided that the securities shall be in the amount and of the character stated in this act, and the amount bid shall not be less than the rate for any legal indebtedness under the laws of this State; the object of this section being to prevent such association from retaining in its loan fund any moneys actually bid for, for the purpose of securing better bids, or inducing bidders to raise their bids and to compel said associations to loan their funds to the highest and best bidders therefor.</p> <p>“Sec. 31. That no association * * * shall set apart as an expense fund, exclusive of admission fees, to exceed $1.00 per year upon each share of its stock or assess any fines *. * * in excess of 10c per share for the first month that the same shall be in arrears, and 15c per share per month for every month thereafter.”</p> <p>The answer also set out the by-laws of the company which were in force at the time of the transaction in question, which were as follows:</p> <p>“Section 1. Any person may become a member * * * by signing an application * * * and paying the admission fee. Such application, however, must be approved by the president or managing director before the certificate shall be issued thereon.</p> <p>“Sec. 2. Every person becoming a member * * * shall pay an admission fee as follows: * ” On one share of stock $3, on 2 shares $5, on 3 shares $6, etc., on 10 shares $10; each additional share $1.00.</p> <p>“Article 2, Section 1. Shares * * * shall be payable-in monthly installments of 60c per share * * *.</p> <p>“Sec. 3. When any share has matured by payments and profits credited to the full amount of $100 the same may be-withdrawn * * *.</p> <p>“Sec. 2. On all advance payments for not less than six months the members shall be entitled to receive interest at the rate of 7 per cent, per annum.</p> <p>“Sec. 8. This company may issue special certificates for stock fully paid up. Paid up stock shall be sold at $50 per share in advance * * *. To members 'investing in this way a dividend of 6 per cent, per annum, payable semiannually, shall be paid on the price of stock. The dividend will therefore be $15 every six months on 10 shares costing $500.</p> <p>“The amount of the dividend shall be deducted from the profits earned, the balance being credited to the stock. When the amount standing to the credit of the stock equals $100 the stock shall be deemed to have matured and the holder may * * receive $100 per share therefor. Members withdrawing this stock may receive the full amount paid therefor at any time after two years, together with % of the accrued earnings of said stock, less the 6 per cent, interest paid on such shares.</p> <p>“Article 3, Section 1. The funds of this company can be loaned only to members on real estate security or on shares * * * “</p> <p>“Sec. 5. Members applying for loans, who have not paid. "installments to the amount of $10, must advance that amount to secure the expenses of appraisal and examination of title ■ 4r vír "Jr</p> <p>“Ho loan shall be made until the abstract of title * * * has been examined and favorably reported upon by the attorney.</p> <p>“Sec. 10'. All applications * * * shall be made in writing on blanks to be furnished by the company * * *.</p> <p>“Sec. 11. All members filing applications shall have the privilege of bidding for loans. Bids shall be opened on the second Tuesday of each month and on such other days as the • directors may appoint.</p> <p>“Whenever the board is prepared to make a loan "a notice ■stating the time when bids shall be open shall be sent by mail to every applicant at least 15 days before the day for ■ opening the bids.</p> <p>“Sec. 12. Ho loan shall be granted to any members unless three months’ installments on stock shall have been paid ■unless the directors shall decide to the contrary.</p> <p>“Sec. 16.- Ho application for loan will be entertained in which the bonus bid is less than the amount fixed by resolution by the board of directors for the year in which the loan is made.</p> <p>“Article 5, Section 1. If any monthly installment is not paid when due• * * * such shares shall be forfeited but they will be -reinstated at any time within 12 months by the payment of all arrears and by the payment of a fine of 10c per share for the first month and a fine each subsequent month of 15c per month upon each share.</p> <p>LOCAL BOABDS.</p> <p>“Article T, Section 1. In localities where not less than 100 shares have been subscribed and first payment made, a local board, consisting of not less than five members, each holding not less than 10 shares, may be nominated by the agent of the company and appointed by the board of direc"tors. The duties of members of local boards shall be to promote the increase of membership, the prompt payment of in.stalhnents and advising the board of directors in relation -.to loans in their localities.”</p> <p>It is denied that there is due to complainant the sum of $1,306.39 or any sum of money whatever. It is also denied that Airey hid and promised to pay the company in consideration of obtaining said loan a premium equal to 50 per cent, of the par value of said stock.</p> <p>The answer avers that the note, and mortgage were executed in Illinois, and that at the time defendants were residents and citizens of Illinois; that notwithstanding the provisions of the note and mortgage that the same are to be governed by the laws of Minnesota, they are as to their execution, construction and enforcement governed by the laws of Illinois; that at the time of making the loan the company had a general agency in Illinois, was doing business in this State and that its agents in control of said agency had authority to and did pass upon the application for the loan and that all transactions in relation thereto were conducted with such agency in Illinois and the securities were delivered to and the money was paid through said agency in Illinois and was received by defendants in this State to be used here and that it was further agreed that the loan would be repaid here by monthly installments at the Illinois agency and was so paid for a long period of time after the consummation of the transaction; that the said provisions were not inserted in the securities in good faith, but as a fraudulent device to enable the company to evade the usury laws of Illinois.</p> <p>By an amendment to the answer it is claimed that said company was not a building and loan association within the meaning of the laws of Illinois, and that the'statute of Minnesota is not sufficiently similar to the statute of Illinois governing building and loan associations to entitle the company to invoke the rule of comity or justify the courts of this State in applying to it the same rules and according it the same privileges as are applicable to Illinois associations.</p> <p>It is further asserted that said company was in its character by virtue of its charter and by-laws a fraudulent device to enable it to secure extortionate and usurious compensation for the use of its money; that said company issued and sold, in accordance with its by-laws,; upon the payment of $50 per share, certificates of stock fully paid up, and agreed to and did pay thereon semi-annual dividends of seven per.cent, per annum which were deducted from the profits earned on such paid up stock, the balance being credited to the stock which was matured when the amount standing to its credit should equal $100, and was subject to withdrawal at any time after two years, the member holding such stock in case of withdrawal to receive the full amount paid therefor, together with three-fourths of the accrued earnings of said stock less said dividends; that the company prior to and at the time of the transaction in question had established agencies in various States other than Minnesota, and loaned its money on real estate situated in other States beyond the inspection and control of its officers and it transacted the business through the medium of local boards of non-residents of Minnesota; that its money was not offered for loan in open meeting of its board of directors to the stockholder who might bid the highest premium for the priority of loan as contemplated by the statute of Illinois, and that the company was in other particulars essentially different in character from an Illinois building and loan association; that in making the loan in question it did not offer its money at a regular stated open meeting of its board of directors to the stockholders who bid the highest premium for the preference, but that the whole transaction was a matter of private negotiations between defendants and the agents of said company in this State contrary to the provisions of the Illinois statute.</p> <p>Complainant’s replication to the original answer was ordered to stand to the answer as amended.</p> <p>The cause was referred to a master in chancery to take proofs and report the evidence with his conclusions on the law and the evidence.</p> <p>The master’s report find's that the company was dissolved and the complainant purchased the assets of the company at the receiver’s sale and among them the note and the mortgage in question; that on January 15, 1891, the defendant Airey made and delivered to one of the local agents of the company at Morgan Park, Cook county, Illinois, his bid for a loan of $1,200, in -which he agreed to hold 24 shares of stock in the company and to continue payments of installments 'on the stock until it matured or until the loan was paid otherwise, and he agreed to pay the company 50 percent. of the stock as a bonus for the loan; that the stock was assigned to the company and the note and mortgage given as security for the loan; that in his opinion the question presented was not one of usury but one of power on the part of the company to exact from Airey the stipulation contained in the bid for the loan, and that the company had exceeded its power, and that the complainant was only entitled to recover the amount actually loaned with interest at six per cent, per annum, less the amounts paid to the company by Airey, and states the account as follows:</p> <p>“Amount of loan...........................$ 1,200.00</p> <p>Deduct membership fee.....'...............■ 24.00</p> <p>Balance 1....................... 1,176.00</p> <p>Interest on $1,176 from Feb. 4, 1891, to June 14, A. D. 1896, at 6 per cent., computed on the basis of monthly rests and application of payments ........................... 210.23</p> <p>Total ........................ 1,386.23'</p> <p>PAYMENTS.</p> <p>64 1-3, $14.40, stock..............$926.40</p> <p>64, $6.00 .....:................. 384.00 1,310.40</p> <p>Balance due June 4, 1896....... 75.83</p> <p>Interest at 6 per cent, from June 4, 1896, to Dec. 14, 1904........................ . 39.05</p> <p>114.88</p> <p>Solicitor’s fees........................... 100.00</p> <p>Due complainant Dec. 14, 1904. ....... 214.88”</p> <p>Objections and exceptions to the master’s report were filed by complainant and defendants.</p> <p>The court hy its decree sustained the master’s report except in certain particulars not necessary to state here, and entered a decree of foreclosure for the amount found by the master.</p> <p>Both the complainant and the defendants prosecute separate appeals which are here consolidated for hearing.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court, For some years prior to 1904 appellant and Ms brother Sigmund carried on business in Chicago as partners under the firm name of Kirchheimer Brothers, and during the years 1900, 1901, 1902 and 1903 appellee was in their employ as city salesman.

Action on the case for personal injuries. Appeal from the Cir•cuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.

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

Injunctional proceeding. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. This is an appeal from an order of the Circuit Court dismissing for want of equity a bill filed in behalf of appellant seeking to restrain collection of a judgment rendered by a justice of the peace.

Prosecution for violation of dram-shop ordinance. Appeal from the Criminal Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement fey the Court.

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

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

<p>Action of debt. 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>

Bill to cancel promissory note, and trust deed. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1904.

<p>1. Insurance policy—who proper plaintiff to recover cash surplus of premiums. The assured, not the insured, is the proper plaintiff to recover a surplus arising from premium payments which are agreed to be returned in cash, where the promise to pay contained in the policy is made to the assured and not to the insured.</p> <p>2. Insurance policy—how construed. An insurance policy will be construed most strongly against the insurer.</p> <p>3. Insurance policy—what does not give right to apply surplus in diminution of mortuary premiums. Held, from the particular language of the policy in question in this case, that the insurance company had no right, without the consent of the insured or the assured, to apply the surplus of premiums in diminution of the mortuary premiums.</p>

Action of assumpsit. Appeal from the Superior Court of Cook-County; the Hon. Julian W. Mack, Judge, presiding. Heard in. this court at the October term, 1904. Statement foy the Court. Appellant orought suit in assumpsit against appellee to recover an alleged balance of $465.30 due for tire steel sold and' delivered by the former to the latter in the year 1899. Appellee filed a plea of the general issue.

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court1 at the October term, 1904.</p>

<p>1. Foreign corporation—when failure to comply with act of May 26, 1897, cannot be relied upon. In an action upon an appeal bond, the non-compliance of a foreign corporation (plaintiff) prior to having obtained the judgment upon which the bond was given, is not a defense.</p> <p>2. Foreign corporation—what not, to “transact business” within meaning of act of May 26, 1897. To take an appeal bond from a judgment obtained by it, is not to “transact business” within the meaning of the act of May 26, 1897.</p> <p>3. Foreign corporation—when may maintain action in this State. If a foreign corporation has complied with the act of May 26, 1897, at the time of bringing suit, its status is established and it is entitled to maintain the same.</p> <p>4. Appeal bond—obligors on, estopped to deny judgment recited therein. The obligors on an appeal bond are estopped to deny the validity of the judgment recited therein.</p>

<p>Action of debt upon replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honoré, Judge, presiding. Heard in this court at the October term, 1904.</p> <p>Statement by the Court. This is an appeal from a judgment of the Circuit Court of Cook county for damages of $2,000 on a replevin bond.. The judgment was rendered in July, 1904, against the appellant, Orson Smith, who was surety on the bond and was alone served with process, the principal, one Francis Lettellier, although sued with appellant, not having been found in the jurisdiction. The bond of Lettellier as principal and Smith as surety was given to the appellee as coroner in October, 1897, on the institution of a suit in replevin by said Lettellier in the Circuit Court of Cook county against the sheriff of Cook county for certain property in said bond described and was for the penal sum of $2,000. The coroner executed the replevin writ and delivered the property to Lettellier. The replevin suit was dismissed without a trial on the merits in December, 1899, for -failure of Lettellier to prosecute and a retorno habendo ordered. The property not having been returned, suit was brought on the replevin bond by the coroner for the use of the sheriff, who held the goods when replevied.</p> <p>To the declaration in ordinary form for replevin the defendant Smith first pleaded non est factum and secondly that the plaintiff should recover but nominal damages because the goods taken vrere the property of Lettellier, the replevinor, and that the replevin suit was dismissed without a hearing on the merits.</p> <p>The plaintiff joined issue on the first plea and to the second replied double, in the first replication traversing and in the second alleging that on October 4, 1897, the Gilliam Manufacturing Company, a West Virginia corporation, sued out an attachment writ for $1,605.24 against the Hamilton Kenwood Oyele Go. in the Circuit Court of Cook county, directing the sheriff of Cook county to attach the property of the.Hamilton Kenwood Cycle Co. to satisfy the writ, and that it was in pursuance thereof that the property in question was taken, and averring that the property so taken was-the property of the Hamilton Kenwood Cycle- Co. and was subject to said writ of attachment. A rejoinder traversing-all the allegations of the second replication was filed by the plaintiff.</p> <p>Later, two additional pleas were filed by the defendant.. The first of these additional pleas sets out a resolution of the Hamilton Kenwood Cycle Company on June 17, 1897,, authorizing the execution of a certain chattel mortgage to one J. Frederick Baars, trustee, under certain specified trusts, the net purport of which was that he should, out of the-proceeds of the property covered by the mortgage, pay the creditors of the Cycle Company in an arrangement of priority according to several classes: first, the National Bank of Grand Bapids and four other creditors; second, twenty-three enumerated creditors; third, nine other creditors, among-them the Gilliam Manufacturing Co. Said mortgage purported to cover all the personal property of the Cycle Company, and specified with other things “all goods, bicycles and materials for the same in transit, and all goods and bicycles sent out on commission or otherwise wheresoever the same-may be; also all additions to the personal property mentioned which may be made from time to time by the said first party during the life of the mortgage and all articles procured to replace any of said property and said goods.” The plea sets out the chattel mortgage in full and avers that it was-duly executed on June 17, 1897, by the Cycle Company through its treasurer and general manager; that said Baárs accepted the trust and that the mortgage and acceptance-were in accordance with the statutes of Michigan filed with the city clerk of the city of Grand Bapids, Michigan, where the company had its principal offiee_ and its residence. It also avers that on or about June 21, 1897, the trustee took actual possession of all property of the Cycle Company •covered by said chattel mortgage in the State of Michigan and employed Jones &' Jennings, agents of the Cycle Company in Chicago, Illinois, to hold possession of the property in Chicago for the trustee and to account to.him therefor; that soon after the trustee had shipped from Chicago to himself at Grand Rapids nearly all the property then in Chicago and that none of the property levied on by the sheriff under the attachment issued October 4, 1897, at the 'suit of the Gilliam Manufacturing Company against the ■Cycle Company was in Chicago on June 19, 1897, but was either then in Grand Rapids or was manufactured after that date out of material then in hand at Grand Rapids; that the attachment was levied upon goods subject to the mortgage and taken possession of by the trustee at Grand Rapids and sent by him afterwards from Grand Rapids to Chicago to be sold in that market; that the safe levied on was purchased by the trustee after the mortgage was given; that on August 18, 1897, the trustee filed a bill in chancery in the Circuit Court of Kent county at Grand Rapids, Michigan, to foreclose the chattel mortgage and for the appointment of a receiver to take charge of the property; that thereupon Thomas J. O’Brien was by the court appointed receiver, and authorized to sell the property at public or private sale; that the said receiver then took immediate possession of said property and shipped from time to time a considerable part of it to Chicago for sale, and that some of this property so shipped was levied on by the attachment writ of the Gilliam Manufacturing Co.; that on September 8, 1897, a final decree in the foreclosure suit was entered directing the receiver to sell the property remaining unsold at public sale; that on September' 10, 1897, the receiver published in the daily newspapers of ■ Grand Rapids notice of a public sale to take place on September 18, 1897, and posted notices thereof and sent by mail, postage prepaid, notice to all creditors of the Cycle Co., including the Gilliam Manufacturing Company; that on September 18, 1897, the property was sold by the receiver pursuant to the notice and was bid off by Letellier for $15,000; that on September 20, 1897, the sale was confirmed by the court; that on September 21, 1897, the agents in Chicago were notified of the sale to Lettellier and were employed by Lettellier as his agents, and thereafter accounted and reported to Lettellier as owner for all sales made; that afterwards all sales and transactions had in relation to .the property were by Lettellier as purchaser, owner, and possessor of said property. _ .</p> <p>As a conclusion, the plea avers that the title of Lettellier was paramount to that of the Gilliam Manufacturing Company, a West Virginia corporation, and that the said Gilliam Company had no title to said property nor any right of possession thereto nor acquired any by the levy of its writ of attachment on October d, 1897.</p> <p>The second of the additional pleas sets up the same matter as the first, and stated as its conclusion that by virtue of the purchase at the receiver’s sale, Lettellier became invested with and succeeded to all the right, title and interest of the trustee, under the laws of Michigan, and that his lien was paramount to the one obtained by the Gilliam Manufacturing Company by its levy.</p> <p>To these additional pleas the • plaintiff filed replications traversing each statement of the pleas and concluding to the country, and also replications alleging that even if the safe was as alleged purchased by the trustee, the possession of it was, when taken by the attachment, in-the Cycle Company and that it was subject to said attachment, that- even if the allegations of said pleas "were true, yet nevertheless when the said attachment writ was levied the said goods and chattels were in the apparent and ostensible possession of the Cycle Company, and that said company was then to all appearances and ostensibly conducting and carrying on the sale of said goods and chattels in Chicago in its own name, that the plaintiff had no notice to the contrary before taking said goods and chattels and that said property was subject to said attachment.</p> <p>Further replications averred that even if the allegations of the pleas were true, yet the authorization, execution and recording of the chattel mortgage, together with the foreclosure and the sale of the property thereunder, were executed and carried out without consideration between the parties thereto and with the fraudulent intent of hindering the plaintiff in the collection of Its debt against the Cycle Company and were fraudulent and void against the plaintiff, and that Lettellier had notice thereof, wherefore the goods levied on were as against the plaintiff at the time when so taken the property of the Cycle Company and subject to attachment against it.</p> <p>The defendant in the action filed rejoinders to these replications, denying that the safe involved was in the possession of the Cycle Company at the time alleged in the replication, denying that when taken by the attachment writ, the property was in the apparent possession of the Cycle Company, or that the Cycle Company was apparently carrying on its sale in its own name, and denying that the transactions involving the mortgage proceedings were wdth a fraudulent intention of hindering and delaying the plaintiff.</p> <p>On the issues raised by these pleadings a trial was had before a jury, in April 1904, and the jury first returned a verdict for the plaintiff, finding the debt $2,000 and assessing the damages at the sum of $1,650 with interest at 5% per annum from October 11, 1897, to April 26, 1904, and also returned special findings on certain questions submitted to them as follows:</p> <p>The question: “What was the value of the property replevied ?”, ‘they answered “$1,760.”</p> <p>The question: “Did the receiver ship the property in question or any part thereof to Jones and Jennings in Chicago?”, they answered “Fo.”</p> <p>The trial judge refused to receive the general verdict (the ad damnum in the writ and declaration being only $2,000), and instructed the jury that the verdict should not exceed $2,000. Whereupon the jury retired and returned a verdict for the plaintiff finding the debt to be $2,000, and assessing damages at $2,000.</p> <p>The court then denied a motion for a new trial made by the defendant and a motion to arrest judgment. Judgment being entered on the verdict the .present appeal is prosecuted. Errors have been assigned and argued involving the admission and exclusion of evidence and the giving .and refusal of certain instructions and asserting the verdict to be against the weight of the evidence. Complaint is also made of the refusal to submit at the instance of the defendant certain special questions of fact to the jury. These matters will be discussed in the opinion so far as seems necessary.</p> <p>Cross errors have been assigned by the plaintiff, who asks, however, for an affirmance of the judgment.</p>

<p>1. Execution—what not subject to. Money on deposit in a bank is not subject to levy upon execution, and a payment by the bank upon demand of the sheriff, pursuant to execution against a depositor having funds on deposit, is, in law, a voluntary payment, unless made by the previous consent or subsequent ratification of such depositor.</p>

<p>1. Peremptory instruction—when motion for, properly denied. A motion for a peremptory instruction is properly denied where there is evidence fairly tending to support the plaintiff’s case.</p> <p>2. Evidence—when admission of, cannot he complained of. The admission of evidence cannot be complained of on appeal where its admission was not objected or excepted to.</p> <p>3. Injury—hoto question of cause of, to he determined. The question as to what was the cause of a particular physical condition or ailment, where the evidence is conflicting, is to he determined by the jury.</p> <p>4. Earning power—what evidence competent in connection with alleged loss of. Evidence as to what the plaintiff actually did earn during the period of disability alleged in the declaration is competent in an action on the case for personal injuries.</p> <p>5. Verdict—when not excessive. A verdict Mr $15,000 held not excessive where the plaintiff at the time of the accident was married and of the age of about 29 years, and the evidence shows that before the accident she was healthy and had had no serious illness and no female complaints, and that prior to the accident she did her own housework, including washing, ironing, baking, etc., that she - was active and frequently walked from the business part of the city to her home, a distance of four or five miles, and that, in addition to doing all her housework, she was able to earn about $300 per year doing millinery work, and that since the accident she has been and is a confirmed invalid, a mere wreck of her former self, and is not only unable to do the work which she formerly did, but cannot even walk a short distance without suffering pain as a consequence of the effort, and where there is no evidence of unfairness on the trial or of passion, prejudice or partiality.</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 October term, 1904.

<p>1. Cokporatiiox—what sufficient sealing by. A scroll may be adopted and used by a corporation as its seal in the execution of a legal instrument upon which a seal is designed to be used.</p> <p>2. Execution—what sufficient proof of, by corporation. Where the execution by the corporation of an instrument in suit is denied by verified plea, all other proof having been made, it is not essential that proof of the authority of the executing officer be shown, if the corporation, being the party denying such execution, has acted under the instrument in question and has thus recognized its existence.</p> <p>3. Aeebehticeshie—what breach of contract of. The removal by a master of his entire plant from the State in which the contract of apprenticeship was made and contemplated to be performed to another State, is a breach of such contract for which damages may be recovered rendered in an action of covenant.</p>

<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>

<p>Mandamus proceeding. Appeal from the Superior Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1904.</p> <p>Statement Tby the Court. The relator filed a bill against appellants praying for a writ of mandamus compelling them to issue to him a license to keep a dram-shop at Ho. 345 East Division street in the city of Chicago. He alleged that he was a resident of said city, a person of good character and ' repute, and the lessee of said premises; that he had complied with all the ordinances of the city of Chicago and with all the laws of the State of Illinois relating to dram-shops, had fitted up said premises with saloon fixtures, and had paid to said city the first period license fee, but that appellants refused and do still refuse to grant to him the necessary saloon license to carry on the business of a dram-shop on said premises.</p> <p>Appellants in their answer to said petition, among other things, say: “That the ordinances of the city of Chicago give to the mayor of said city the power to issue licenses to keep dram-shops in said city, but they aver that the said ordinances do not make it the duty of the said mayor to grant such license to every applicant therefor, and they aver the fact to be that it is within the power of the said mayor to deny an application for a license to keep a dram-shop when the place selected for such dram-shop is not a proper place for such a business to be conducted, and they aver the fact to be that the premises described in said petition are adjacent to a public school, attended by a very large number of children, and that it is not a proper place in which to conduct a dram-shop, and they further aver that persons engaged in mercantile pursuits in that vicinity have protested against the establishment of a dram-shop in said premises, and the said mayor, believing that in so doing he was conserving the best interests of the people, has refused, and still does refuse, to grant a license to keep a dram-shop on said premises.”</p> <p>The cause was submitted to the court for trial upon the following agreed statement of facts:</p> <p>“It was admitted by the parties that the only ordinance of the city of Chicago regulating the matter of granting licenses to keep dram-shops is as follows:</p> <p>‘1175. The mayor of the city of Chicago shall, from time to time, grant licenses for the keeping of dram-shops within the city of Chicago to persons who shall apply to him in writing therefor, and shall furnish evidence satisfying him of their good character. Each applicant shall execute to the city of Chicago a bond, with at least two sureties, to be approved by the city clerk or city collector, in the sum of. five hundred dollars, conditioned that the applicant shall faithfully observe and keep all ordinances in force at the time of the application or thereafter to be passed during the period of the license applied for, and will keep closed on Sundays all doors opening out upon any street from the bar room where such dram-shop is to be kept, and that all windows opening upon any street from such bar or room shall, on Sundays, except between the hours of one o’clock A. M. and five o’clock A. M., be provided with blinds, shutters or curtains, so as to obstruct the view from such street into such room. Eor shall any windows be painted or covered in any manner so as to obstruct the view from such street into such room. Eo application for a license shall be considered until such bond shall have been filed.’</p> <p>It is admitted that the petitioner made his application for a license to keep a dram-shop at the place in question, and that in so doing he did everything required of him by the laws or ordinances; that no question was or is made of the sufficiency of the bonds tendered by petitioner, or of his good character, and that his application was refused solely because the place where he proposed to keep his dram-shop . is immediately next to the grounds of the Lyman Trumbull School, one of the public schools of the city, the mayor being of opinion that he has a right to refuse a license when, in his judgment, the place in which it is proposed to keep a dram-shop is one where a dram-shop will be a detriment and an injury to the neighborhood and offensive to the best interests of society.</p> <p>It is further admitted that the south school building has not been used regularly in the past two years, that it has not been used but two or three times, though it is ready for use; some of the rooms of the north school building are not used, as there are not enough scholars to require the use of the whole building; that the property is held for school purposes 'and intended for use as a school, and that the location of the proposed saloon with reference to the school, and the surroundings, are truthfully set out in a plat shown in the abstract.”</p> <p>The plat shows that the school grounds are situate on the northeast corner of Division and Sedgwick streets, having a frontage of 184 feet upon the former and of 225 on the latter street. Hear the center of these grounds are two school buildings. The lot known as 345 Division street adjoins the school grounds upon the east. The rear of this lot is 55 7-12 feet from the east wall of the south school building, and the rear of the saloon building is 200 feet from the southeast corner of the north school building. From the front of the saloon to the gate leading into the school grounds on Division street the distance is 38 7-12 feet. There are six other saloons and a theatre in the immediate vicinity of these school grounds.</p> <p>The judgment of the court awarded a writ of mandamus requiring appellants to issue to the relator a license to keep a dram-shop on said premises.</p>

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

<p>1. Passenger—ivhat does not show non-status as. The fact that a plaintiff claiming that he was a passenger made statements upon cross-examination which tended to show that he was not a passenger, does not establish his non-status as a passenger where there was ample evidence in the case without such statement to establish that he was in fact a passenger.</p> <p>2. Recovery'—upon what, must he predicated. The plaintiff must recover, if at all, upon his declaration; he cannot charge one species of negligence and recover upon proof of negligence of a different character.</p> <p>3. Res gesta:—what not part of. A statement made by a companion-of one claiming to have been a passenger upon a traction car after such car had traveled about a block, is not a part of the res gestw but is only competent as tending to discredit the testirnony of such companion.</p> <p>4. Technical errors—when will not reverse. Technical errors are not ground for the reversal of a judgment which in the opinion of the Appellate Court does substantial justice between the parties.</p> <p>5. Verdict—ivhen not excessive. A verdict for $5,000 is not excessive . where the evidence shows that the plaintiff was thrown from the car in question to the ground with such violence that he was rendered unconscious; that blood flowed from his eyes and mouth; that he was, transformed thereby from a strong, well man in the prime of life, of good hearing and unruptured, to a sick man, prematurely old, incapacitated for pleasure, wholly deaf in one ear and partially deaf in the other, with an inguinal hernia so large that it necessarily interferes with his movements and cannot be reduced by manipulation.</p>

<p>Bill for injunction, etc. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Action of trespass for unlawful ejection. Appeal from the Superior Court of Cook County; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the October term, 1904.</p> <p>Statement by the Court. The appellee secured a judgment of $10,000 against the appellant in June, 1904, in the Superior Court of Cook county, on the verdict of a jury. From this the appellant has prosecuted this appeal, and has assigned as error and argued that the judgment and verdict were against the law and the weight of the evidence; that the case should have been withdrawn from the jury by a peremptory instruction to find for the defendant; that there are variances between the proof and the declaration, calling for a reversal of the judgment; that an instruction especially framed with reference to such alleged variance, that should have been given, was refused; that evidence was improperly admitted and evidence improperly excluded, and, finally, that the damages allowed are not only excessive, but so grossly excessive as to be indicative of passion and prejudice on the part of the jury, and to taint the whole verdict beyond the possibility of a cure by remittitur.</p> <p>The suit was brought by appellee for damages for being wrongfully ejected from the cars of appellant company, and by the means used in such ejection physically injured. The ■declaration originally contained seventeen counts, but the plaiiftiff (the appellee here) abandoned seven of them, and they were stricken out. Those retained were originally numbered 1, 3, 4, 6, 7, 8, 9, 10, 14 and 17. The first charges that the plaintiff became a passenger on one of the defendant’s Lincoln avenue cars going northwesterly January 12, 1902-, that he paid to the conductor of the Lincoln avenue car the fare of five cents and asked for a transfer ticket to enable him to be carried in a northerly direction on a Halsted street car of the defendant; that the conductor gave plaintiff a transfer ticket; that plaintiff left the Lincoln avenue car at Halsted street and entered the next Halsted street car going north; that while the Halsted street car was running at a high rate of speed, its conductor demanded of the plaintiff a fare; that plaintiff gave the conductor the transfer tickets he had received in the Lincoln avenue car; that the conductor received them but refused to accept them in payment of the fare, and demanded that plaintiff should pay a fare in monéy; that the plaintiff explained to the conductor the circumstances under which he received the transfer tickets', and remonstrated with him against .the demand for cash fares; that thereupon the said conductor assaulted the plaintiff and “with great, unnecessary and unreasonable force and violence” dragged the plaintiff through and out of the car, and ejected him while the same was moving at a high rate of spiced, and thereby threw the plaintiff on the ground, to his great pihysical injury, etc., and also with the result that he was hindered and prevented from transacting and attending to his affairs, “and lost and was deprived of divers great gains, profits and advantages, etc., and from carrying on his business as a jeweler, from which employment and business the plaintiff derived an income and profit of five thousand dollars a year,” and was piermanently disabled, etc.</p> <p>The allegations of the 3rd, 4th, 9th and 17th counts are not substantially different from those of the first. The 6th and 10th counts set out the same matter, except that they omit the averment that the ejection took pfiace while the car was moving.</p> <p>The 7th and 8th counts contain in addition to the allegations found in the 6th and lOtli, an averment that in December, 1885, the city council of Chicago passed an ordinance, afterward accepted by the Forth Chicago City Railway Company, of which the defendant is the successor, giving permission to said railway company to construct and maintain a railway from its' tracks in Clybourne avenue on and along Ilalsted street north to Fullerton avenue, so as to connect with its tracks on Lincoln avenue, and providing that “the rates of fare for any distance on the tracks of said Company, whether on the lines herein authorized or heretofore constructed, shall not exceed five cents for each passenger for any continuous travel at one rideand also an averment of another ordinance of the city council of Chicago, providing the rate of fare on any street railway within the limits of the city of Chicago, shall not exceed five cents, and that “at any point where any line of any street railway owned, leased or operated by any person, firm or corporation, does now or shall hereafter, Avitliin the limits of the city of Chicago, join, connect until, cross, intersect or come Avithin the distance of tAAro hundred feet of any other line of street railway OAvned, leased or operated by the same person, firm, company or corporation, any passenger Avho shall have paid his fare on any street car run or operated on such first mentioned line, shall, on his request, bo entitled to demand and receive from the person or persons, in charge of such street car on Avliich he has so paid his fare, a transfer ticket Avhicli shall entitle him, Avithout further charge, to be carried on any other one line adjoining, connecting, crossing and intersecting and owned, leased or operated by such person, firm or corporation, for a continuous trip of any distance within the limits of the city of Chicago, 'if used within one hour after the same is issued at the point or place for which such transfer ticket Ayas issued.”</p> <p>This last ordinance so set up is the so-called “Transfer Ordinance,” passed first by the council in 1870, re-enacted in 1897, and against the contention of the Chicago Union Traction Company, and at the suit of the city of Chicago, found valid on appeal from a justice’s judgment rendered in December, 1901, by the Criminal Court of Cook County in April, 1902, and by the Supreme Court in December, 1902.</p> <p>The 14th count merely charges an assault and battery of the plaintiff while conducting himself peaceably as a passenger, by one of the servants of the defendant, "acting within the sc-ope of his authority as such servant.</p> <p>The defendant pleaded the general issue and two special pleas to this declaration, the special pleas being variations of the plea moll iter manus imposuit, alleging that plaintiff had refused to pay the usual and customary fare, and was staying in the defendant’s car without the defendant’s consent, and refused to leave when requested, and that defendant’s servant, after gently laying hands on him to remove him, used no more force than ivas necessary to so do and to defend himself against the resistance and assault of the plaintiff. These pleas were traversed by replications in the-nature of replications de injuria (although inartificially drawn) and the issues thus made up.</p> <p>On the trial, over the objection of appellant, the appellee’s daughter, one Mrs. Paus, was asked to give a conversation she said she had heard between her father and the conductor on the Lincoln avenue ear, and answered that her father, on receiving the transfers, asked the conductor if they were good on a Halsted street car; that the conductor answered affirmatively, and that her father asked him a second time, and the conductor said, “Yes, how many do you want ?”</p> <p>The plaintiff himself, also over objection, was permitted to testify to the same conversation.</p> <p>The plaintiff was asked and over the defendant’s objection was allowed to answer questions as to what he made on the average in his business per month during the year preceding the accident, and how much he had made per month since he ■went back to it.</p> <p>A physician who had attended the plaintiff immediately following the accident, and had seen him several times since, was allowed, over objection, to say that he did not consider plaintiff’s mental condition as good after the accident as it was before.</p> <p>Morris Roach, the conductor on the Halsted street car, ivas a witness for defendant and was asked by defendant’s counsel whether “at the time of the occurrence, January 12, 1902, the corner of Lincoln avenue and Halsted street was a transfer point from the Lincoln avenue car, going north on Halsted street.” He answered, “Ho,” but on objection and motion by the plaintiff the answer was stricken out by the court.</p> <p>Both the ordinances hereinbefore described, as set forth in the 7th and 8th counts of the plaintiff’s declaration, were offered in evidence by the plaintiff on the trial, and over the objection of the defendant, received.</p> <p>One instruction offered on behalf of the defendant was refused, seventeen others so offered by the defendant were given. Hone was asked on behalf of the plaintiff. A motion for a new trial was denied by the court, and also a motion in arrest of judgment. Proper exceptions were taken to all the actions of the court complained of.</p>

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

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

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1905.

Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Wxndes, Judge, presiding. Heard in this court at the March term, 1905, Statement hy the Court. Appellant sued a street car company to recover damages for alleged injuries. In the trial he called appellee as a witness. After the trial appellee demanded thát appellant pay him $200- for his. loss of time occasioned by said suit and trial.

<p>1. Amendment—effect of vacating order permitting. The effect of vacating an order granting leave to file an amendment is to ~ve the pleadings sought to be amended precisely as though no leave to file such amendment been given, and this notwithstanding the amendment was actijPt placed on file before the order of vacation was entered.</p> <p>2. Amendment—what ground for refusal to permit. An unreasonable delay in offering an amendment is good ground for a chancellor to refuse to exercise the discretionary power to permit amendment.</p> <p>3. New cause of action—when amended petition for mechanic’s lien sets up. Where the original petition for a mechanic’s lien alleged in substance, that the contractor had completed the building and that the owner had accepted it without either such contractor or owner having paid the petitioner, a sub-contractor, for the materials which he had sold to the contractor for and which had been used by him in the building, an amended petition for such a lien which alleges in substance that the contractor before the building was completed abandoned the same and surrendered it to the owner and that the building was then worth more than enough to pay the claim of the petitioner, a sub-contractor, over and above the then cost of the buildings' and any damages sustained by the owner by reason of the non-fulfillment of the original contract for its construction, states a new cause of action.</p> <p>5. Equity—when will follow the law. Where a complainant in equity had a concurrent remedy at law which is barred by limitation, equity will apply the same rule of limitation and bar him in equity.</p>

<p>Action of assumpsit. 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> <p>Statement by the Court. December 2, 1901, appellant brought an action in assumpsit against Henry O. Ross, Alexander H. Seelye and D. Flanner, but obtained service upon Ross only. The declaration counted upon two promissory notes executed December 27, 1890, at Wausau, Wisconsin, by the three defendants by the name of Flanner, Seelye & Ross, payable at Wausau to the order of P. B. Champagne; one for the sum of $4,332.33, due in one year from date, and the other for the sum of $4,332.32, in two-years from date, each bearing interest at the rate of 8 per cent, per annum. After various pleas, including the general issue, were filed, the declaration was amended. Thereafter and on October 13, 1902, Ross filed an additional plea alleging that the notes declared on in the declaration were given for a partnership indebtedness of the then firm of Flanner, Seelye & Ross, and that- said partnership was composed of the defendants herein, D. Flanner, Alexander H. Seelye and Henry O. Ross, ánd that each of the notes was signed in thé firm name of Flanner, Seelye ■& Ross, and not in the individual names of the members of the firm, and that after the giving of said notes, the plaintiff, under the name and style of Alice G. Fleming, trustee, impleaded the said defendant, Alexander H. Seelye, in the Circuit Court of Cook county, Illinois, in the October, 1895, term of said court, in the year 1895, in a certain plea of trespass on the case on promises, to the damage of the plaintiff of $10,000, for not performing the very same promises in said declaration mentioned, and that such proceedings were thereupon had, that thereafter, at the November, 1895, term of said court, by the consideration and judgment of said court, the plaintiff, recovered against the defendant Seelye, the sum of $8,061.31 damages as well as costs of the plaintiff in that behalf, whereof the said Seelye was convicted, as hy the record thereof still remaining in said court will more fully appear, and that said judgment remains in full force and effect, as the defendant was ready to verify by the record.</p> <p>To this plea appellant replied: That the said defendant, Henry O. Ross, and the defendant, D. Flanner, at the time of the commencement of said action in said additional plea mentioned, and at all times thereafter to and including the time of the rendition of the judgment in said plea mentioned, were not residents or inhabitants of or domiciled in the State of Illinois, or in the county of Cook within said State, but during all of said time the said defendant, Ross, was a resident and inhabitant and domiciled in the State of California, and was not during said time, or any part thereof, within the jurisdiction of the Circuit Court of Cook ■county, Illinois, being the court in which the judgment in said plea mentioned was rendered, or subject to service of process issuing therefrom, and that said defendant, Ross, became a resident and inhabitant of said county of Cook in said State, and domiciled therein, after the date of the rendition of said judgment in said plea mentioned, and not before, and that the judgment in said plea mentioned is wholly unpaid and unsatisfied.</p> <p>To this replication Ross filed a general demurrer.</p> <p>January 7, 1905, a judgment order, reading as follows, was entered:</p> <p>“This cause being called for trial, come the parties to this suit, by their attorneys respectively, and said cause having heretofore, on the stipulation of the parties herein, been submitted to the court for trial without a jury, the ■court now hears all the evidence, oral and documentary, adduced by the respective parties upon the issues joined by the pleadings, and it appearing to the court that the court heretofore, to-wit, on the 25th day of ¡November, 1904, sustained the general demurrer filed by the defendant, Henry 'C. ¡Ross, to the first replication of the plaintiff to the first additional plea of the defendant, Henry C. Ross, filed October 13, 1902, to the declaration as amended herein; and that the plaintiff on said date elected to stand by said first replication;</p> <p>“And the court now having heard the arguments of counsel, and being fully advised in the premises, finds that said first additional plea of the defendant, Henry O. Ross, filed October 13, 1902, to the declaration as amended herein, and the judgment therein set forth, constitutes a bar to the cause of action of the plaintiff set out in said declaration as amended.</p> <p>“Therefore, it is considered by the court that the plaintiff take nothing by her said action, and that the defendant, Henry O. Ross, go hence without day and do have recovery of and from the plaintiff, his costs and charges in this behalf expended, and have execution therefor.”</p> <p>This appeal was then perfected.</p>

<p>Bill in nature of bill of interpleader. . Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. Admission of evidence—when cannot he complained of. Where an entire line of testimony is stricken out but subsequently such ruling is changed, the court, stating that in his opinion certain portions of such testimony were competent, the party so having moved to strike out has nothing of which he can complain if any of such testimony is competent where he does not make specific motions to strike out the incompetent portions of such testimony.</p> <p>2. Memobandum—when witness may testify from. A witness may testify from a memorandum made by him at the time of the occurrence to which he is testifying where he states that at the time he made such memorandum he knew it to be correct, notwithstanding he does not testify as to the occurrence in question from an independent recollection.</p> <p>3. Res ipsa loquitub—when servant can recover. Without reference to the technical doctrine of res ispa loquitur, a servant injured while operating an elevator of his" master can recover where it appears that such servant was a stranger to the operation of such elevator and it was under the management of the master and the accident was such that in the ordinary course of things it would not have happened if such master had used proper care.</p> <p>4. Declabation—when sufficient after verdict. A declaration is sufficient after verdict which by intelligible allegations has apprised the opposing party of the cause to be made against him.</p> <p>5. Pain—what evidence competent to show. The testimony of a medical expert that a particular injury would cause pain in the future is competent.</p> <p>6. Medical examination—when Appellate Court will not consider. The Appellate Court in passing upon the question of the excessiveness of the verdict will not consider a medical examination which has been made after verdict and pending the decision upon the motion for a new trial.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Carroll County; the Hon. James S. Baume, Judge, presiding. Heard in this court at the October term, 1905.

<p>1. Verdict—when not set aside after three juries have passed on case. A verdict will not fie set aside as against the preponderance of the evidence unless it is most clearly and manifestly so where three juries have passed upon the case and each has found the same way.</p> <p>2. Cause of action—effect of failure to notify defendant before suit. A cause of action is not affected by the failure of the plaintiff to notify the defendant of its existence prior to the institution of suit.</p> <p>3. Ordinance—against permitting steam to escape, construed. An ordinance which forbids the allowing of steam to escape “when the engine Is in immediate proximity of any street or railroad crossing,” does not mean simply that steam shall not fie allowed to escape in immediate proximity to where a street and a railroad cross each other.</p> <p>4. Ordinance—when not unreasonable. An ordinance which forbids the allowing of steam to escape when the engine is in immediate proximity to any street or railroad crossing is not unreasonable, and is valid.</p> <p>5. Damages—what evidence incompetent upon, in action for personal injuries. A plaintiff in an action on the case for personal injuries should not fie permitted to testify as to the number of his children but the action of the court in permitting such testimony held, in this case, not ground for reversal.</p> <p>6. Errors—what cannot be alleged upon second appeal. Alleged errors which existed upon a first appeal cannot be urged upon a second appeal of the same cause where upon such first appeal such errors 'were not urged.</p>

<p>1. Railroad company—when liable to landowner for damage resulting from construction of road. It is the duty of a railroad company in constructing its road across watercourses so to construct it as not to impair their usefulness in carrying off water flowing . through them, and although it may be constructed according to approved principles of engineering, yet if injury necessarily results to adjoining landowners, the company will be liable.</p>

Action for fraud, and deceit. Appeal from the Circuit Court, of Winnebago County; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1905.

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will County; the Hon. Dorraxce Dibell, Judge, presiding. Heard in this court at the October term, 1905.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the .October term, 1905.

<p>Action of replevin. Appeal from the Circuit Court of DeKalb .County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Forcible detainer—what school authorities may maintain. In an action of forcible detainer the school directors are the proper plaintiffs; where, however, the title to land is involved, the school trustees are the proper plaintiffs.</p> <p>2. Forcible detainer—when one without right of possession may successfully maintain. Where one is In peaceable possession of a house he may recover possession of such house where his possession has been invaded, notwithstanding he is without any claim of right.</p> <p>3. School directors—when status as, cannot he questioned. In. an action of forcible detainer the defendant cannot question the manner and legality of the election of the school directors who are plaintiffs.</p>

<p>Action on the ease for death caused by alleged wrongful act. Appeal from the Circuit Court of LaSalle County; the Hon. Richard S. Fasrand, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Cross-examination—what proper upon. Upon cross-examination it is proper to inquire of a witness if she had any feeling against the party against whom she is testifying.</p> <p>2. Imputation—right of party to rebut. Where a witness upon cross-examination has testified that she has feeling toward the party against whom she is testifying and that she could not well be without feeling because of the way she had been treated by him, it is competent to rebut such imputation by parol testimony.</p> <p>3. New trial—when should not be granted for surprise. A new trial should not be granted on the. ground of surprise at the trial where the party claiming such surprise had opportunity to forestall it.</p>

<p>Action of trover. Appeal from the Circuit Court of Livingston County; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Libel—when words are actionable without proof of special ■damage. A charge against a physician of unprofessional conduct in the treatment of a case is actionable without proof of special damage.</p> <p>2. Libel—effect of general statements of damage at conclusion of declaration. A general statement of damage jnade at the conclusion of a declaration applies to each of the several counts thereof.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of LaSalle County; the Hon. Richard S. Farband, Judge, . presiding. Heard in this court at the October term, 1905.

<p>Contest in court of probate. Appeal from the Circuit Court of Peoria County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Passenger—when carrying beyond station does not render carrier liable for death of. Held, from the facts of this case, that the death of a passenger did not proximat'ely result from her being wrongfully carried beyond her station and that the carrier was not liable as such death was produced by other causes.</p> <p>2. Negligence—when carrier not liable for. A carrier of passengers is only liable for the direct and proximate results of the negligence complained of or for those results which can reasonably be anticipated to flow therefrom.</p> <p>3. Presumption—when will not sustain liability for negligence. A liability for negligence will not be sustained where predicated upon one presumption based upon another.</p>

<p>Bill to reform, etc. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Rock Island County; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of McHenry County; the Hon. Charles H. Donnelly, Judge, presiding. Heard' in this court at the October term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of LaSalle County; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Action of assumpsit. Error to the Circuit' Court of Kendall County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Action of replevin. Appeal from the Circuit Court of Livingston County; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Action of assumpsit. Error to the Circuit Court of Rock Island County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Appeal—to what court taken from, order appointing conservator. An appeal from an order entered by a county court appointing a conservator should be taken to the circuit and not to the appellate court.</p> <p>2. Writ op error—when does not lie from, appellate to county court. A writ of error does not lie from the appellate to the county court for the purpose of reviewing an order of the latter court appointing a conservator, notwithstanding the jurisdiction of such county court to appoint such' conservator is sought to be questioned and an appeal taken therefrom would admit such jurisdiction.</p>

<p>1. Peremptory instruction—effect of motion for. A motion for a peremptory instruction admits the truth of all opposing evidence and of all inferences which may fairly and rationally be drawn therefrom. If there is evidence which fairly tends to establish the plaintiff’s case, the court is not at liberty to weigh the evidence under such a motion and to determine where the preponderance lies, but that question must be submitted to the jury.</p> <p>2. Benefit certificate—what essential to enforcement of forfeiture of. Unless the circumstances show a clear intention to declare a forfeiture it will not be enforced.</p> <p>3. Benefit certificate—when forfeiture of, will not he enforced. Where a course <?f dealing of the company with the insured has been such as to induce a belief that the provision for a forfeiture will not be insisted upon, the company will not be allowed to set up such forfeiture against one in whom its conduct has induced such belief. Conduct on the part of an insurance company or a beneficiary society which amounts to a recognition of the member’s continuing membership after he has made default authorizing his suspension, will waive the default.</p>

<p>1. Demurrer—what not reached 6y. The question as to whether a municipal corporation can recover under each of a number of different counts for violations of an ordinance or can only recover for one violation, upon the theory that there was hut one, namely, a continuing violation, cannot be raised by demurrer but should be raised by motion to require an election under which of the several counts such municipality would proceed.</p> <p>2. Change of grade—power of municipality to fix recurring penalties for continuing violation of ordinance providing for. A municipality has power to provide a penalty for each day that a railroad company shall fail to comply with an ordinance changing the grade of a street.</p>

<p>Action on the case. Appeal from the County Court of Sangamon County; the Hon. George B. Watkins, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>1. Statute or Frauds—when promise to pay debt of another not within. A promise to pay the debt of another in consideration of that other’s discharge from the debt is not within the Statute of Frauds.</p> <p>2. Consideration—what is. A detriment to the promisee is as valid a consideration as a benefit to the promisor.</p>

<p>Action to recover damages for injury to personal property. 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>Contest in court of probate. Appeal from the Circuit Court of Cass County'; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>1. Dedication—how may he made. The intention to make a dedication may be manifested by express consent or by acquiescence of the user; no particular form is necessary; it may be made with or without a writing.</p> <p>2. Dedication—how acceptance of, may appear. The acceptance of a dedication may appear by acts showing an intent to receive the same.</p>

<p>1. Assumpsit—when lies. Assumpsit lies whenever a defendant has money of the plaintiff which in equity and good conscience he has no right to retain.</p>

<p>1. Statute of Frauds—when contract does not concern sale of interest in land. A contract by which several owners of land agree jointly to erect a pumping station, etc., in order to reclaim lands subject to overflow, does not concern the sale of an interest in land, and, therefore, need not be in writing.</p> <p>2. Contract—when memorandum of, incompetent. A memorandum made by a witness as to the terms of a contract which represents his conclusions from what was said, is incompetent.</p>

<p>1. Solicitor’s ebbs—when allowance for, in divorce proceeding, improper. Solicitor’s, fees for past services rendered in a divorce proceeding which has been abandoned cannot he allowed.</p>

<p>1. Propositions of law—when need not he presented. Propositions of law need, only be presented where a right of trial by jury exists and the same, in the particular case, has been waived.</p> <p>2. Administrator—may pass title to personal property. An administrator may pass title to personal property notwithstanding the sale thereof is made without authorization of an order of court, providing he acts in good faith.</p> <p>3. Administrator—when not liable for selling personal property without order of court. Where an administrator has used such a degree of intelligence as a man of ordinary prudence would have exercised, he is not personally liable for selling personal property without the authorization of an order of court.</p>

Paul McWilliams, Judge, presiding. Heard in this court at the November term, 1905. Statement hy the Court. Held: possessed or enjoyed by any person, company, or corporation under any privileges or franchises heretofore granted by said city, to which rights all the rights hereby conferred shall be subject.” It also provides that “it is expressly stipulated, however, that the work of constructing said track and appliances therewith connected…

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

Criminal prosecution for unlawful sale of intoxicants, etc. Error to the Circuit Court of Ford County; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the November term, 1905.

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion County; the Hon. James W. Craig, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>Proceeding in court of probate. Appeals from the Circuit Court of Moultrie County; the Hon. William C. Johns, 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>

Action on the case for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1905.

<p>1. Freehold—when involved. Where a perpetual easement is in issue, a freehold is involved and the Appellate Court is without jurisdiction.</p>

<p>1. Sheriff—when may demand indemnifying bond. Where there is a reasonable doubt as to the ownership of the property sought to be levied upon, the sheriff may require an indemnifying bond.</p> <p>2. Execution—effect of failure to furnish indemnifying bond upon lien of. The failure or refusal of the plaintiff in an execution to furnish to the sheriff upon demand an indemnifying bond, will operate to postpone the lien of such execution to one junior thereto in point of time upon which a levy has been made and upon which indemnity has been given.</p>

<p>1. Vebdict—when set aside as against the evidence. A verdict . which is manifestly against the preponderance of the evidence will be set aside on appeal.</p>

<p>1. Insurance policy—what proof not essential to recovery upon. Proof of the truth of the statements of the applicant is not essential to recovery upon an insurance policy.</p> <p>2. Warranties—rule of insurance law with respect to. Warranties are not favored since they'must be literally fulfilled and where it is doubtful whether the statements made in the application for insurance are to be regarded as warranties or representations, they will be deemed representations.</p> <p>3. Warranty—what does not render statement a. The use of the word “warranty” does not necessarily render a statement made in an application a warranty.</p>

<p>1. Bill of exceptions—what must show. Where the action of the court in refusing to stay proceedings is sought to he reviewed, the bill of exceptions must show the motion to stay and the exception to the ruling of the court thereon.</p>

<p>Forcible detainer proceeding. Error to the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>1. Former suit pending—how objection of, may be removed. The objection of former suit pending may be removed, even after a plea relying thereon filed in the second suit, by dismissal of such former suit.</p> <p>2. Assessment of damages—what evidence defaulted party cannot introduce. A party in default cannot introduce upon the assessment of damages evidence which tends to establish a substantial defense to the plaintiff’s action.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Logan County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the May term, 1905.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1905.

<p>1. Set-off—when defense of, cannot he interposed. A defense of set-off cannot be interposed in an action to recover a penalty provided for by statute.</p> <p>2. Recoupment—when defense of, may he interposed. Recoupment is in law a mitigation of damages and the defense is of such a nature as will permit a claim originating in contract to be interposed as against one suing in tort; likewise damages for a tort may be recouped against a claim predicated upon a contract.</p>

<p>Proceeding under Dram-Shop Act. 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>

Petition under statute to compel property to be turned over to executor. Appeal from the Circuit Court of McDonough County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the November term, 1905.

Action on the case for personal injuries. Appeal from the City Court of Litchfield; the Hon.. Paul McWilliams, Judge, presiding. Heard in this court at the May term, 1905.

<p>1. Release—what question proper where validity of, is questioned. Where the validity of the release of a claim for personal injuries is sought to be questioned, it is proper to inquire of the releasor if when he put his mark upon the paper in question he did or did not know that he was signing away his claim for damages.</p> <p>2. Verdict—when set aside as against the evidence. A verdict will be set aside where it is manifestly against the weight of the evidence.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1905.

Action commenced before justice of the peace. Appeal from the Circuit Court of Vermilion County; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1905.

Petition for removal of trustee, etc. Appeal from the Circuit Court of Logan County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the May term, 1905.

Action on the case for death caused by alleged wrongful act. Error to the Circuit Court of Macon County; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1905.

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>Action of trover. Appeal from the Circuit Court of McDonough County; the Hon. John A. Cray, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the November term, 1905.</p>

Action commenced before justice of the peace. Appeal from the County Court of DeWitt County; the Hon. Feed C. Hill, Judge, presiding. Heard in this court at the November term, 1905.

Action commenced before justice of the peace. 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>1. Dominant land—what not within right of owner of. The owner of the dominant land has no right to remove a natural barrier or watershed and thereby cause to flow upon the servient land water which would not otherwise naturally flow thereon.</p>

<p>1. Statute of Frauds—when lease within. A verbal lease which id to run for a longer period than a year is within the Statute of Frauds.</p> <p>2. Election—conduct may constitute. A tenant who remains in possession after he has been told by his landlord that he must rent the premises covered by his old lease if he would, rent at all, elects to remain under such old lease.</p>

<p>1. Dbam-shop—how city’s power to license, must he exercised. A city’s power to license or to refuse to license dram-shops can only be exercised through general ordinances operating uniformly upon, all persons of the class to which the ordinances relate.</p> <p>2. Dbam-shop—refusal to license, cannot he predicated upon-mere whim. A city cannot reserve by ordinance or exercise an. arbitrary power with respect to the issuing or the refusing of a dram-shop license.</p> <p>3. Mandamos—when writ of, to compel issuance of dram-shop license, will not he issued. Unless it is made clearly to appear that the- petitioner has complied with all the requirements of the ordidance relating to the granting of dram-shop licenses, he is not entitled to the writ of mandamus in the event of a refusal to grant such license.</p>

<p>Mechanic’s lien proceeding. Appeal from the Circuit Court of' Vermilion County; the Hon. E. R E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>Bill to construe will. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>Forcible detainer' proceeding. Appeal from the Circuit Court of Fulton County; the Hon. Robebt J. Gbieb, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>1. Contract—what constitutes, as between member and fraternal benefit society. The regulations of such society, together with the application for membership and. the certificate of membership, constitute the contract and must he read and construed together.</p> <p>2. Fraternal benefit society—when regulations of, invalid. A regulation of such an organization which precludes the personal representative of a deceased member from benefits unless releases of claim for damages against a railroad company are obtained from parties other than such personal representative, who receive no consideration therefor, is unreasonable and invalid.</p> <p>3. Fraternal benefit society—when amendments of regulations invalid. Notwithstanding the power to amend the regulations is retained, amendments which are oppressive, vexatious, contrary- to public policy or which manifestly are calculated to defeat or destroy the fundamental plan of benefits, are invalid.</p> <p>4. Fraternal benefit society—when regulation providing for submission of disputes for decision, invalid. A regulation of a fraternal benefit society by which the beneficiary is compelled to submit the question of liability to such society for decision, is invalid, especially where the tribunal which would decide the dispute is composed of individuals having collateral and adverse interests.</p>

<p>1. Special assessment rebates—action ties to recover. An action lies to recover of a municipality special assessment rebates unlawfully withheld. Citing City of Chicago v. Singer, 116 Ill. App. 559; City of Chicago v. Fisk, 123 Ill. App. 404.</p> <p>2. Special assessment rebates—what remedy need not he re--55; sorted to, to recover. A taxpayer entitled to the return of rebates upon special assessments paid by him is not bound to seek his remedy against the officers of the municipality who have diverted the funds from which primarily he should have been reimbursed.</p>

Action on the case for^personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.

<p>Action of assumpsit. Appeal from the Superior Court of Coolr County; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

<p>Forcible entry and detainer proceeding. 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>Statement by the Court. Appellee brought an action of forcible detainer against appellant before Justice Everett. Justice Everett being unable to attend at the trial, requested Justice Martin to hear the case for him, and Justice Martin heard the case, rendered a judgment for the plaintiff, and the defendant appealed to the Superior Court. The transcript of the judgment filed in the Superior-Court was certified by Justice Everett. The parties went to trial in the Superior Court without objection, and there was a verdict for the plaintiff and judgment thereon, from which the defendant prosecutes this appeal.</p>

Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. Edward M. Sanders filed his petition in bankruptcy April 28, 1902, in the District Court of the United States for the Uorthern District of Illinois, was adjudged bankrupt, and appellee was appointed trustee of the bankrupt estate.

<p>Action on the case for personal injuries. Appeal from the City Court of Chicago Heights; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p> <p>Statement by the Court. This is an appeal by the defendant from a judgment for $1000 recovered against it in the City Court of Chicago Heights by the plaintiff, in an action on the case for personal injuries sustained by the plaintiff while operating a stamping or shaping machine for the defendant. The ground of recovery alleged in the declaration was, that the plaintiff was inexperienced in the use of machinery, was employed by the defendant as a laborer, and had no knowledge of the danger attending the operation of said stamping machine, and was negligently, etc., ordered by the defendant to operate said machine without the defendant informing him of the danger attendant upon its operation or instructing him how to operate it, and that while so operating said machine, with due care, etc., two fingers of his left hand were caught in said machine and so injured- that it was necessary to amputate them.</p>

<p>Action of debt. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p> <p>Statement Tby the Court. This is an appeal by the defendants from a judgment for $10,000 debt and $800 damages recovered upon a constable’s bond.</p> <p>The husband of Augusta Balaban had a retail grocery store in Chicago and his wife assisted' him in the store. A judgment was recovered against him before a justice of •the peace and an execution issued thereon and placed in the hands of Constable Greenberg. Greenberg went to the store to make a levy under the execution. He produced and laid upon the counter a paper which he said was a copy of the execution upon which was endorsed the amount of the judgment, $3.90, and certain items of costs making the amount of judgment and costs $10.70, He took certain goods from the shelves and placed them in barrels and boxes. The judgment debtor then attempted to make a schedule and his wife went to a box in which Greenberg had placed a part of the goods taken by him from the shelves. She •leaned over the box to see what was in it and Greenberg pushed her away. She stooped down again and he picked Up the box, and in doing so the box struck her on the abdomen. She was then far advanced in pregnancy and three days later gave birth to a still born child. The sum of $9.40 was then paid to Greenberg and he endorsed upon the copy of the execution the following receipt: “Received the sum of $9.40 in full settlement of the within judgment and costs. Levy released.</p> <p>“Louis Greenberg, Constable.”</p> <p>The declaration is in the usual form of a declaration in debt upon an official bond. In the assignment of a breach of the condition of the bond, the facts above-stated are set out in much detail and it is then averred that while Augusta Balaban “was in the act of assisting said Balaban, her husband, or his agent in that behalf, to prepare said schedule to be given to said Louis Greenberg, as aforesaid, he, the said Greenberg, as a constable, then and there, acting under said writ of execution and by color of his office of constable .as aforesaid, attempted to prevent the said Balaban or his agent in that behalf from making up said schedule, and in so attempting to prevent and while interfering with and preventing said Augusta Balaban from counting the articles and items of property levied upon, as aforesaid, by said Greenberg, he, the said Greenberg, wilfully and maliciously assaulted said Augusta Balaban and wilfully and maliciously committed a battery upon her, and then and there wilfully and maliciously struck her violently in the abdomen with a large hox containing merchandise, and otherwise brutally beat and maltreated her.”</p> <p>The plea of all the defendants inter alia, denies that said Greenberg, while acting under the writ of execution and by color of his office as constable, committed the assault and battery upon said Augusta Balaban as charged in the plaintiff’s declaration.</p> <p>he defendants offered no evidence at the trial.</p>

Injunctional proceeding. 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. Statement by the Court. This is an appeal from an order of the Superior Court finding appellants and each of them guilty of contempt in wilfully violating an injunction. Appellant Wood was sentenced to be confined in the Cook County jail for ten days and to pay a fine of $100.

<p>Quo warranto proceeding. 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>

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. Statement by the Court. Appellant. purchased a second-hand automobile of appellee, who it is said was acting for a third party. Subsequently he“ sued upon two special counts for an alleged breach of warranty of the machine, adding the common counts to the declaration.

Action commenced before justice of the peace. Appeal from the County Court of Cook County; the Hon. Dwight C. Haven, Judge, presiding. Heard in the Branch Appellate 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 the Branch Appellate Court at the March term, 1905.</p>