Volume 132 — Illinois Appellate Court Reports

<p>1. Guardian’s bond—how far act of March 13, 1814, pertaining to official bonds, applies to. This act as originally enacted did not apply to the bonds of guardians, and as amended only applies to such bonds with regard to their acknowledgment and the evidentiary effect of acknowledgment.</p> <p>2. Guardian’s bond'—what does not release. The original bond of a guardian is not released or discharged by the giving and the acceptance of an additional or a new bond as required by order of court.</p> <p>3. Guardian and ward—power of court to require additional security. By virtue of section 35 of the Guardian and Ward Act, the court of probate has authority to require, accept and approve an entirely new bond.</p> <p>4. Joint and several obligors—how recovery may be had against. By virtue of statute in this state, either or both of several joint obligors may be sued or both may be sued and a judgment obtained as against one with a dismissal as to the other.</p>

<p>1. Pbodttctiox of books—when order requiring, proper. An order permitting a casualty company to examine books and make memorandum therefrom is proper, where such company had guaranteed indemnity to the party whose books were in question upon the basis of a premium proportionate to the amount of the wages paid by the party so indemnified, the contract of indemnity giving the right to such an examination.</p> <p>2. Contempt—when party guilty of, in disobeying order. A party disobeying an order of court is guilty of contempt, even though the order be erroneous, if the court entering the same had jurisdiction of the parties and the subject-matter, and had power to make the order.</p>

<p>Action in assumpsit. Appeal from the Superior Court of Cook</p> <p>county; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>Certiorari proceeding. Error to the Circuit Court of Cook comity; the Hon. Richard W. Clutord, Judge, presiding.</p>

<p>Forcible entry and detainer. Appeal from the County Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding.</p>

<p>1. Divorce—effect of death of complainant upon right to review decree of. A writ of error to review a divorce proceeding may be prosecuted after the death of the complainant in the bill who secured the decree.</p> <p>2. Divorce—what desertion essential as ground for. The desertion essential to the granting of a decree of divorce is a desertion which is wilful and without reasonable cause; a mere absence unaccompanied with a design or intent not to return is insufficient.</p> <p>3. Appearance—function of, where entered in lieu of service of summons. The entry of appearance performs no other function than would service of process.</p> <p>4. Default—when prematurely entered. A default should not be entered against a defendant who has filed his appearance in lieu of service except at a term commencing at least ten days after the entry of such appearance.</p> <p>5. Default—how judgment predicated upon premature, reviewed. Where a default is prematurely entered and a judgment rests upon such default after the lapse of the term at which the judgment is rendered, a writ of error is the only method by which a review of the judgment may be obtained.</p> <p>6. Certificate of evidence—when presumed to contain ail the evidence heard. Where the decree entered recites that the certificate of the evidence heard has been filed, it will be presumed, in the absence of any finding in the decree that other evidence was heard, that the certificate in question contained all the evidence actually heard.</p>

<p>1. Affidavit of mebits—who need not file. The requirement that the defendant file an affidavit of merits is only imposed upon a defendant resident of the county in which the suit is brought. The fact of non-residency in such a county is established in a case where attachment was obtained because of the non-residency of the defendant in the state.</p>

<p>1. Safe place to work—duty of master to furnish. Where a servant by virtue of his employment is constantly brought into close contact with a dangerous agency, such as electricity, it is the duty of his master, to so confine and control such electricity that it will not escape and injure a servant while in the discharge of his duties.</p> <p>2. Declaration—when sufficiently alleges duty of master. It is not the function of a declaration to state the evidence but to state the act or omission relied upon as constituting the breach of duty. A statement that the plaintiff was a conductor on a motor car, the motive, power of which was electricity, is a sufficient statement, which in law raises a duty upon the master to so control the electricity in the operation of its cars that it will not injure the servant while discharging the duties of his employment, in the exercise of due care.</p>

<p>1. Marriage—what fraud not sufficient to annul. Fraudulent rep-" resentations of the fact that one of the parties to the marriage had been cured of epileptic attacks, to which she had to the knowledge of the other party been previously subject, is not ground for annulment.</p> <p>2. Marriage—when not induced 6y false representations. Held, from the evidence, that the marriage in question was not induced by false representations and that even if it had been the marriage contract was ratified.</p>

<p>Foreclosure and mechanic’s lien proceedings, consolidated. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Bill to construe trust. Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge; presiding.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>1. Grand jury—when appears to have been properly sworn. A contention that it does not appear from the record that the foreman of the grand jury which voted the indictment was properly and separately sworn, as required by statute, is fully answered by the recital of the record that “the grand jurors were duly sworn.”</p> <p>2. Production oe> documents—when demand for, made in criminal prosecution in presence of jury, not improper. A demand by the state’s 'attorney made of a defendant that he produce a voucher, is not improper, where such demand is made for the purpose of removing the objection that had been interposed by such defendant to the effect that such voucher was the best evidence of the matter under investigation by such state’s attorney.</p> <p>3. Cross-examination—when not unduly restricted. It is within the discretion of the trial judge to allow or disallow questions upon the cross-examination of a witness which affect his family relations and his habits in connection with disreputable women, where such witness was an accomplice of the defendant convicted, and was turning state’s evidence.</p> <p>4. Assault—what evidence competent in prosecution for conspiracy to commit. In a prosecution for conspiracy to commit an assault, it is competent, in addition to showing what took place at the time of the assault in question, to introduce evidence as to the ensuing condition of the party assaulted, his death following, the results of an autopsy, etc.</p> <p>5. Assault—when punishment for conspiracy to commit, not excessive. A sentence is not excessive in a prosecution for conspiracy to commit an assault merely because the sentence imposed was greater than could have been imposed had the prosecution been merely for the making of an assault.</p> <p>6. Stenographic transcript—how preliminary proof of. made. In seeking to prove a stenographic transcript it is proper to have the stenographer swear to the correctness of the transcript as a whole, and it is not essential to require that the stenographer who made such transcript testify separately with respect to the correctness of each question and answer contained in such transcript.</p> <p>7. Incompetent evidence—when admission of, will not reverse. The admission of incompetent evidence will not always work a reversal of the judgment of conviction where the competent evidence clearly justified the verdict.</p> <p>8. Variance—what does not constitute, in criminal case. In a prosecution for conspiracy to commit an assault, proof of the commission of an assault upon one person is not a variance from the indictment which charged that the conspiracy contemplated the commission of assaults upon a number of persons, including the person shown to have been assaulted.</p> <p>9. Sentence—what need not specify in crirAinal case. A judgment of conviction need not specify that the defendants convicted be put at hard labor.</p> <p>10. Parol Act—repeal affected by. Section 6 of Division 14 of the Criminal Code is superseded in the case of all crimes mentioned in section 1 of the Parol Act.</p> <p>. 11. Confessions—discretion of judge with respect to admitting, made to police officers. It is within the discretion of the trial judge to admit or reject answers to question of officers to prisoners, and such answers should be rejected if there be reason to believe that a trap was being laid for a prisoner, and such confession should be received with caution.</p> <p>12. Confession—when incompetent. A confession is incompetent where obtained from the defendant by the promise of a police officer of some collateral benefit or boon, even though no threat or promise was made in reference to the criminal charge in which such confession was made, unless it shall appear that there was no reason to suppose' that the inducement held out was calculated to produce an untrue confession.</p> <p>15. Fine—when imposition of, erroneous.' The imposition of a fine in a judgment of- conviction is erroneous where no punishment by fine was provided for in the verdict. '</p> <p>14. Fine—when erroneous imposition of, not ground for reversal. Where the verdict in a criminal case imposed punishment by imprisonment in the penitentiary and the judgment of conviction in that respect followed the verdict but also imposed a fine, the Appellate Court may correct the judgment of conviction and need not reverse the cause.</p> <p>• 15. Change oe venue—when application based upon alleged prejudice of inhabitants of county not improperly denied. Even though there be no- counter-affidavits it is within the discretion of the trial judge to grant or refuse an application for the change of venue, made because of the alleged prejudice of the inhabitants of the county in which the trial is to take place and in considering such application it is proper for the judge to weigh, and consider what he himself judicially knows of the development of the trial, of the situation of the case, and of the facts alluded to in the application.</p> <p>16. Motion to strike—when allowance of, cures error in admission of evidence. The striking out of evidence improperly admitted cures the error in admission if the party claiming to have been prejudiced could have obtained a hearing upon the preliminary proof out of the presence of the jury and did not avail himself of the opportunity.</p> <p>17. Accomplice—evidence of, sufficient to sustain conviction. A conviction may be had and sustained in a criminal case upon the uncorroborated testimony of an accomplice.</p>

<p>1. Costs—when motion for apportionment of, should he made. A motion for the apportionment of costs should .be made in the trial court.</p> <p>2. Amendment—what does not preclude addition of neto party. The fact that the person sought to. be added had been a party to the cause in the justice court but was dismissed therefrom, does not preclude the right to amend by again adding such person as -a party.</p> <p>3. Amendment—right to add new party after appeal ■from justice. After an appeal from a justice of the peace, a new party may be added by amendment.</p>

<p>Quo warranto proceeding. Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.</p>

<p>1. Master and servant—when relation of, must exist to sustain liability for negligence in driving of team. Negligence in the driving of a team and liability for the effect of such negligence can only be cast upon the servant actually guilty of the negligence or upon his master.</p> <p>2. Master—who is, in lato. In law the master is he who has the supreme choice, control and direction of the servant and whose will the servant represents, not merely in the ultimate result of his work but in all its details.</p> <p>3. Master—when not liable for negligence in driving wagon. Where the- servant in charge of a team, for his own convenience turns it over to another, and such other is guilty of negligence, the master is not liable.</p> <p>4. Peremptory instruction—what does not waive motion for. A motion for a peremptory instruction is not waived by going to the jury on the merits.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford,</p> <p>Judge, presiding.</p>

<p>Criminal prosecution for conspiracy. Error to the Criminal Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.</p>

<p>1. Order—how verity of, cannot be attached. An order of a court of record, in due form, imports verity and that verity cannot be overcome by pleadings or affidavits in a chancery cause.</p> <p>2. Jurisdiction—when objection to, waived. An objection to the jurisdiction of the court which goes to the person and not to the subject-matter, is waived by going to trial.</p> <p>3. Partnership—what does not establish relation of. The fact that a joint association may be styled a partnership or may be referred to as such, does not establish the fact, and the character of the joint enterprise is to be determined largely from an inspection of the documents which bind the parties together.</p> <p>4. Partnership—when courts of law have jurisdiction for accounting. Where the partnership has ended and the accounts are not complex, or where they have been settled and the amount due the suing party agreed upon, a court of law has jurisdiction.</p> <p>5. Assignee—when may sue in his own name. An assignee of a chose in action may sue thereon in his own name" where the defendant has recognized the assignment.</p>

<p>1. Lease—effect of offer to renew. A voluntary offer to renew a lease, not acted upon before withdrawal, confers no right upon the tenant to continue his possession.</p> <p>2. Lease—how offer to renew, construed. A written otter to renew a lease is to be construed by the court.</p> <p>3. Revocation—right of, with respect to offer to renew lease. A party making a voluntary offer to renew a loan may revoke the offer at any time before it is acted upon.</p>

<p>1. Jurisdiction—when stipulation operates to defeat objection to. The entry into a stipulation invoking the jurisdiction of the court as a chancery tribunal to determine a controversy, precludes the subsequent urging of an objection to the jurisdiction of the court to hear the cause as one in chancery.</p>

<p>Bill to foreclose landlord’s lien. Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Statutes—canon of construction. One of the rules for determining the legislative intention in construing statutes is to' consider the evil sought to be remedied and the object sought to be attained.</p> <p>2. Contributory negligence—when no defense. Contributory negligence is no defense to „an action instituted under the Mines and Miners Act predicated upon a wilful violation thereof.</p> <p>3. Mines and Miners Act—when mine examination not compliance with. "Where a mine examiner does not make a report specifying the dangers of the mine examined, it is not a compliance with the statute.</p> <p>4. Abstract—when insufficient. An abstract which is a mere index and which does not show which party moved for a new trial and excepted to the denial thereof, is insufficient.</p>

<p>Bill in equity. Appeal from the Circuit Court of LaSalle county; the Hon. Richard S. Farrakd, Judge, presiding.</p>

<p>Action for damages for overflowing lands. Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of Rock Island county; the Hon. Fjjank D. Ramsay, Judge, presiding.</p>

<p>1. Lease—right to withdraw option. A person who has given, without consideration, an option to make a lease, may withdraw such option at any time before it is acted upon.</p> <p>2. Lease—effect of accepted option. Where an option for a lease is given, even though there be no consideration for the option, if it is acted upon by the party receiving the option, a contract is created.</p> <p>3. Specieio performance—when awarded of option for lease. Where an - option for a leasé is given, even without consideration, and is accepted, specific performance will be awarded where it appears 'that the party accepting the option has acted upon the good faith of the contract so created, and would he irreparably injured if specific performance were not awarded.</p> <p>4. Contracts-—canon of construction. Courts will adopt such a construction of a contract as the parties by their conduct have placed upon it, when such construction is reasonable.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur.H. Frost,• Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Woethkstgtoh, Judge, presiding.</p>

Action in case for death catised by alleged wrongful act. Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding.

<p>• 1. Instruction—when erroneous as to right of recovery for failure to ring hell. An instruction given in an action to recover for injuries arising from the alleged failure of the defendant company to ring a bell or sound a whistle, as required by law, is erroneous which directs a verdict in favor of the plaintiff without proof that the plaintiff was in the exercise of due care.</p> <p>2. Instruction—what does not cure erroneous. An instruction which directs a verdict and which is erroneous is not cured by another correct instruction, as the jury would be unable to fletermine which of the two instructions they should follow.</p>

<p>1. Divorce—power of court to retain jurisdiction over question of alimony. It is within the power of the court to enter a decree of divorce and to retain jurisdiction over the question of alimony, and to act with respect to the question of alimony after the lapse of the term at which the decree of divorce is entered.</p> <p>2. Divobce—out of what property alimony may he allowed. Alimony may be allowed and required to be paid from property acquired by the defendant after the entry of the decree of divorce.</p> <p>3. IsvrmroTioi?—when propriety of, cannot he reviewed. The propriety of the issuance of an injunction cannot be reviewed upon an appeal from an order pertaining solely to the allowance of alimony.</p>

<p>1. Cancellation—provision concerning notice of, construed. A provision which concerns the privilege upon the part of the company to cancel upon five days’ notice, means actual and not constructive notice.</p> <p>2. Cancellation—what not notice of. Notice of. cancellation given to one whom the insured has authorized to procure the insurance sought to be canceled, is not notice to the insured.</p> <p>3. Cancellation—when notice of, begins to run. Where the policy gives the company the privilege of cancellation upon five days’ notice to the insured, the five days begin to run from the receipt of the notice by the insured.</p> <p>4. Cancellation—when return of premium essential to. The return of the unearned premium is essential to a cancellation by the company where the policy, among other things, provides “when this policy is canceled by this company by giving notice, it shall retain only the pro rata premium.”</p> <p>5. Cancellation—effect of silence following notice of, to insured. The silence of the insured upon receipt of notice of cancellation, which silence was for but a short period, does not operate as a recognition of the cancellation where the same is not made pursuant to the terms of the policy.</p> <p>6. Cancellation—what does not establish acquiescence in. Acquiescence in cancellation sought to be made by the company pursuant to the policy, is not established against the insured, if not in conformity with the terms of the policy, by virtue of his commencing action upon other policies, obtained for him by one acting initially without authority as substitutes for the policy so sought to be cancelled.</p> <p>7. Insurance—how policy construed.' If a policy of insurance is susceptible of two constructions, that one is adopted which is most favorable to the insured.</p>

<p>Action in case. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>Petition for habeas corpus. Error to the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Judgment by confession. Appeal from the Circuit Court of Iroquois county; the Hon. F. L. Hooper, Judge, presiding.</p>

<p>Forcible entry and detainer. Appeal from the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>1. Master—when liable for injury to servant. A master is liable to an inexperienced servant who performs work at the direction of a superintendent representing the master after having received assurances of safety from such superintendent.</p> <p>2. Instruction—particular phrase held improper. Held, that the phrase, “if the defendant was otherwise without fault,” as used in an instruction tendered but refused, was improper.' '</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. F. L. Hooper, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>1. Statutes—canon of construction. In the construction of statutes, special provisions do not give way to general clauses, but the contrary is the rule.</p> <p>2. Villages—power of appointment when organized under general act for incorporation of cities and villages. The power of appointment to appointive offices in villages organized under the general act for the incorporation of cities and villages rests in the president and board of trustees jointly.</p> <p>3. Office—what does not affect appointment to. An appointment to office in a village, if made by the properly constituted authority, is not affected by a mere irregularity in procedure.</p> <p>4. Mandamus—when question as to right to office does not arise in. A proceeding by mandamus does not seek to try the title to an office where the petition is filed by a person in office who had entered upon - the duties thereof, and was acting therein when he filed his petition, where he seeks merely by such proceeding' to compel the doing of the acts necessary to the collection by him of salary earned in office.’</p> <p>5. Abbreviations'—when objection to absence of explanation of, comes too late. An objection that an abbreviation has no legal meaning comes too late when first raised on appeal.</p>

<p>Bill in equity. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>Bill in equity. Error to the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>' Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Kankakee county; the Hon. F. L. Hooper, Judge, presiding.</p>

<p>1. Municipal corporation—when question of liability of, for injuries resulting from alleged defective sidewalk, should be submitted to jury. Held, that the evidence in this case justified the court in submitting to the jury the question as to whether the plaintiff was entitled to recover from the defendant, a municipal corporation, because of injury sustained by reason of the condition of a sidewalk controlled by such defendant.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>1. Relief—what pleading essential to obtain. Relief will not be granted in chancery upon facts not alleged.</p> <p>2. Insane person—when necessary party. Where the title to real estate is affected by a decree in equity, an insane person holding the title to such land, for whom a conservator has been appointed, is a necessary party.</p>

<p>Action for damages for loss of support. Appeal from the Circuit Court of Kane county; the Hon. Charles A. Bishop, Judge,, presiding.</p>

<p>1. Motion fob new trial—effect of failure to file grounds for, in writing. No points are waived by a failure to file a written motion, and when the unsuccessful party is not required by the opposing counsel to make his motion in writing, all grounds which might have been specified can be relied upon and argued as grounds for a new trial.</p> <p>2. Verdict—when not excessive. A verdict of $3,000 is not excessive where it appears that the plaintiff was severely injured and scarred in and about his face, and in consequence of the injury suffered much pain and lost both the sense of taste and smell.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>Action for damages for overflow of land. Error to the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>1. Trespasser—who is not. A person Is not a trespasser who uses as a public way an apparently public alley, kept so by .the defendant,' simply because he steps over the technical legal boundary.</p> <p>2. Personal injuries—when trustees appointed by will personally- liable for. Trustees are personally liable for injuries resulting from the negligent maintenance of property where all the duties devolving upon them are those which ordinarily devolve upon the absolute owners of property.</p> <p>3. Personal injuries—when landlord liable for. A landlord is liable for personal injuries which result from a dangerous condition of the premises where such dangerous condition existed at the time of the letting.</p> <p>4. Res ipsa loquitur—doctrine of explained. When the doctrine of res ipsa loquitur is applicable, the burden of explaining the negligence is on the defendant; nevertheless the burden of proof is not upon the defendant but he is only required to rebut the presumption arising from the proven facts.</p>

<p>1. Obdinaby cabe—when carrier only required to exercise. A carrier is only required 'to exercise ordinary care with respect to persons upon or passing over its tracks.</p> <p>2. Negligence—when instruction as to, erroneous. An instruction is erroneous which directs a verdict for the plaintiff in an action on the case if the jury find certain facts, without leaving the question to such jury as to whether such facts constitute negligence.</p> <p>3. Instettctions—must not he argumentative. Instructions argumentative in form should be refused.</p> <p>4. Vabiance—rule with respect to correspondence between allegations and proofs defined. The rule that the proof must correspond with the allegations applies only to such allegations as are in themselves material to the action, or to those immaterial allegations which are so interwoven with those that are material as to make the latter depend upon them and thus expose both to a traverse.</p> <p>5. Expebt witness—how inquiry with respect to cause of injury should he put to. Where the cause of an injury is sought to be proven by an expert witness the question properly should describe a hypothetical case corresponding to the facts claimed to exist and the witness may tell in the abstract what might have caused the condition.</p>

<p>Action commenced before justice of the peace. Error to the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding.</p>

<p>1. Abstract—effect of failure to file, conforming to rule. An appellant who fails to file an abstract w,hich complies with the rule of court with respect to abstracts, entitles the court, in its discretion, to dismiss the appeal.</p> <p>2. Revenue Act—section 814 construed. Under section 214 of the Revenue Act, the owner of a tax certificate of purchase may recover of the owner of the property upon which the certificate was issued, or intended to be issued, notwithstanding the sale, which preceded the certificate, was made under a description void for uncertainty.</p>

<p>I. Reformation—what proof essential upon ground of mutual mistahe. Where it is sought to reform a written instrument upon the ground of a mere mistake, the fact of the mistake must he proven hy clear and satisfactory evidence.</p>

<p>1. Option—what constitutes irrevocable offer. A lease which gives to the lessee an option of purchasing the premises demised is not an offer to sell which may be retracted, but is a continuing and irrevocable offer, binding the lessor to convey to the lessee upon his compliance with the terms of the option.</p> <p>2. Option—what sufficient consideration to support. The agreement to pay rent is a sufficient consideration to support an option to purchase contained in a lease.</p> <p>3. Forcible detainer—when does not Me against one who enters as lessee. Forcible detainer does not lie against a person who has entered into the possession of premises under a lease where such lease contained an option to purchase which option has been exercised and the terms of purchase complied with or sought by tender to be complied with.</p>

<p>1. Specialty—how cannot he varied. A contract under seal cannot be modified or'have a new element inserted in it by parol.</p> <p>2. Specialty—how may he released. A contract under seal may be released, abrogated or surrendered by parol.</p>

<p>1. Motorman—when instruction does not sufficiently define duties of. An instruction is improper which tells the jury that if the “motorman sounded the whistle sufficiently loud and near that it could he heard by one in the exercise of ordinary care and caution looking and listening, * * * then the motorman performed his whole duty under plaintiff’s allegation of negligence in that regard, and under the law.”</p>

<p>Action in case for personal injuries. Appeal from the City Court of Aurora; the Hon. John L. Healy, Judge, presiding.</p>

<p>1. Partnership—when burden of proving, is upon the defendant. Where the defense interposed is that a transaction upon which a recovery is sought was a partnership transaction, the burden of proving such partnership is upon the defendant.</p> <p>2. Partnership—what essential to establish. To create a partnership independent of express agreement, there must be an interest in profits as profits and not as a mere means of payment for labor performed.</p> <p>3. Partnership—how question of existence of, determined. Whether an agreement creates a partnership or not depends upon the real intention of the parties; if the agreement is not in writing, the intention of the parties must be ascertained from their words and conduct.</p> <p>4. Partnership—when instruction upon question of existence of, erroneous. An instruction is erroneous which tells the jury that “the best evidence of a partnership is sharing between the alleged partners of all the profits and losses.”</p> <p>5. Degree of proof—when instruction as to, erroneous. An instruction is erroneous which tells the jury that a party must prove a matter asserted by him to the satisfaction of the jury.</p>

<p>1. Municipality—extent of application of doctrine of respondeat superior. The doctrine' of respondeat superior does not apply to municipalities except in their corporate capacity.</p> <p>' 2. Municipality-—when not liable for infection suffered through negligence of servants. A person cannot recover of a municipality because of injuries suffered through the contracting of a loathsome disease by reason of the negligence of the servants of such municipality.</p>

<p>1. Witness—when not disqualified under Evidence Act. A party in interest is competent where the adverse party defends as administrator, as to any facts occurring after the death of the administrator’s intestate.</p> <p>2. Witness—when not disqualified under. Evidence Act. A party in interest is competent where the adverse party defends as administrator, with respect to any conversations as to which such administrator has testified.</p> <p>3. Conduct of counsel—when repetition of questions will not reverse. Held, improper, but not ground for reversal, to repeat questions as to which objections have been sustained.</p> <p>4. Taxation of costs—when concession as to evidence which witness would give does not preclude. A party is entitled to have witnesses’ fees taxed in his favor, notwithstanding after the appearance of such witnesses the adverse party makes admission as to the testimony which they would give.</p>

<p>1. Market value—what cross-examination proper of expert who has testified to. It is within the discretion of the court to permit an expert who .has testified to the market value of land in question to be asked as to his knowledge of sales made in the vicinity of such land. ■</p> <p>2. Election of remedies—when does not hind. A party who has brought suit in one form of action may change and pursue another form if under the first form of action he could have obtained no relief.</p> <p>3. Drainage district—what essential to recovery from, for land taken. In order to recover of a drainage district for land taken for a right- of way, all the statutory requirements must be alleged and proved, among which are, that a tax has been levied or a fund obtained for the purpose of paying for such right of way.</p>

<p>1. Verdict—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence where there was a conflict and the trial court saw the witnesses and approved the verdict as rendered.</p>

<p>1. Conteact—when suit for breach may be instituted. When a contracting party gives notice of his intention not to comply with the obligations of the contract, the other contracting party may accept such notice as to anticipatory breach, and if he accepts it as such and considers the contract at an end, he may sue for damages without waiting for the completion and fulfillment of such contract by its terms.</p> <p>2. Judicial notice—taken of abbreviations used in describing land. 'Courts take judicial notice, without proof, of the meaning of the initials and abbreviations usually used in the description of land, and if evidence is necessary to explain abbreviations, extrinsic evidence may be heard for that purpose.</p>

<p>Action on the case for deceit. Appeal from the Circuit Court of Whiteside county; the Hon. William H. Gest, Judge, presiding.</p>

<p>1. Mtjltieaeiousness—how question of, determined. The question as to whether a pleading is multifarious must be determined largely by the circumstances of each particular case, and its determination is to a certain extent discretionary. The reason of the rule against multifariousness is to protect a defendant from un- . necessary expense. If the allegations of the bill fairly construed show a single object and seek to enforce a single right, the bill is not multifarious.</p> <p>2. Ultba vibes—when question of, cannot he raised hy general demurrer. A general demurrer does not raise the question of ultra vires upon the part of a corporation, to impose a restriction upon the defendant against the use of premises conveyed for the sale of intoxicating liquors, where the bill seeks to enjoin such use and alleges, among other things, that the land in question is held under a contract or conveyance containing such restriction.</p> <p>3. Ultra vibes—when party cannot claim that provision of contract is. A party cannot claim rights by virtue of a contract and at the same time repudiate the restrictions contained in such contract which are not inconsistent with statutory law.</p> <p>4. Intoxicating liquors—when restriction against use of land for sale of, will he enforced. A restriction contained in the conveyance of the fee of land which precludes the sale thereon of intoxicating liquors, if clearly imposed by the terms of the conveyance, will be enforced by injunction.</p>

<p>1. Canada thistles&emdash;instruction in prosecution under section of the Criminal Code, approved. An instruction in a prosecution under section 41 of the Criminal Code, as follows, is approved:</p> <p>“The jury is instructed as a matter of law, that the fact that a stray Canada thistle, growing here and there on the right of way or other lands of a railroad company, owning, controlling or operating a railroad in the State of Illinois, has been overlooked and permitted to mature its seed, is not itself a .violation of the provisions of the statute of the State of Illinois which reads: ‘If any company, association or person, owning, controlling or operating a railroad, shall refuse or neglect to dig up and destroy, or take other certain means of exterminating Canada thistles and other noxious weeds that may at any time be growing upon the right of way or other lands of such roads, or appertaining thereto, they shall be fined for each offense not less than fifty nor more than two hundred dollars, the fine to be paid as in the preceding section,’ when the said railroad company has done all that could be reasonably expected of it for the destruction of the thistles. And if you believe from the evidence in this case that the defendant has in good faith made a 6ona fide attempt to comply with said law, and has in good faith done all that could reasonably be expected of it for the destruction of said Canada thistles, even though you may believe that a few stray thistles were found growing on the right of way of the defendant, still in that case your verdict should be for the defendant.”</p> <p>2. Canada thistles—when conviction under section Jfl of Criminal Code will not he sustained. Where there is evidence that the defendant has made an honest effort to destroy the Canada thistles in Question a conviction under section 41 of the Criminal Code will not be sustained.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Guaiíantor.—right of, -to erase indorsement of payment. A guarantor, or his representative after death who has paid a note, may erase an indorsement of payment and maintain an action upon the note.</p> <p>2. Pbomissoby note—plea of payment, held sufficient. Held, that the plea of payment interposed to an action upon a promissory note, the substance of which is set forth in the opinion, was good and, if proven, constituted a defense to the action.</p> <p>3. Duplicity—how advantage must he taken of. Duplicity is ground for special demurrer only and the demurrer must not only assign it as a cause but must point out wherein the duplicity consists.</p> <p>4. Special demurrer—what cannot he reached 6y. Surplusage in a plea cannot be reached by a special demurrer.</p>

<p>1. Plea—what admitted hy failing to traverse. Allegations of a plea not traversed by replication are admitted. This is true notwithstanding the allegations of the plea not so traversed were unnecessary and .were allegations of matters which might have been proven under the general issue.</p> <p>2. Instruction—upon interest of plaintiff approved. An instruction directing the jury that they may consider the interest of the plaintiff in the result of the suit as bearing upon his credibility, in form as follows, is approved:</p> <p>“The plaintiff is permitted by law to testify in his own behalf, but the law also provides that his interest in the event of the suit may be considered by the jury in determining the credit to be given to his testimony.”</p>

<p>Action in case for personal injuries. Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Fbost, Judge, presiding.</p>

<p>1. Information-—■power of court to permit amendment of. In-formations are not like indictments, and the court may in its discretion permit them to be amended.</p> <p>2. Information—when need not be verified. An information presented - by and in the name of the state’s attorney need not be verified.</p> <p>3. Dram-shop act—what sufficient to establish violation of section 6. Section 6 of this act does not say “fixed habit;” it says “a person who is in the habit of getting intoxicated,” and proof of a fixed habit is not essential to a conviction under this section.</p>

<p>1. Exception—essential to review ruling upon evidence. In order to save for review a ruling of the court upon the admission and exclusion of evidence, an exception should be taken to such ruling.</p> <p>2. Pebemptoby insteuction—what question raised 6y motion for. A motion to direct a verdict for the defendant raises the question as to whether there is any evidence which with all.proper inferences to be drawn therefrom fairly and reasonably tends to support the cause of action alleged in the declaration.</p> <p>3. Assumed bisk—doctrine of, defined. Ordinarily, one engaging in any employment assumes the ordinary risks and hazards of the business in the manner in which it is conducted, and there is no duty of the master to warn and instruct him as to dangers which are patent to persons of ordinary- intelligence.</p>

<p>Objections to administrator’s report. Appeal from the Circuit Court of Ogle county; the Hon. James S. Baume, Judge, presiding.</p>

<p>Action for false imprisonment. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>1. Verdict—when not disturbed. Where the question at issue is one of identification and the evidence is in conflict, a verdict will not be disturbed unless some material error of law has intervened.</p> <p>2. Instruction—upon preponderance of evidence, approved. An instruction is proper which tells the jury that the burden of proof was upon' the plaintiff and for him to recover he must prove his case by a preponderance of the evidence, and if the jury find that the evidence is evenly balanced or that it preponderates in favor of the defendant, then the plaintiff could not recover and the jury should find for the defendant.</p> <p>3. Instruction—in replevin, as to what plaintiff must prove to recover, approved. An instruction is proper which tells the jury in substance that the plaintiff to recover in replevin must do so upon the strength of his own title, where it appears that the property in question was indisputably in possession of the defendant.</p>

<p>Forcible entry and detainer. Appeal from the Circuit Court of DeKalb county; the Hon. Chables A. Bishop, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>1. Fellow-servants—when question of relation of, one of law. Where there is no evidence fairly tending to prove that the co-servants were not fellow-servants and the' undisputed facts show that the relation of fellow-servants existed, the question is one of law to' he determined by the court.</p> <p>2. Fellow-servants—who not, as matter of law. An inspector of boilers or a foreman of a boiler-testing department is not, as a matter of law, a fellow-servant of a workman operating a traveling crane.</p> <p>3. Assumed risk—rule defined. A servant assumes all the ordinary risks of his employment when he enters upon it, whether he knows of them or not; he likewise assumes all the extraordinary dangers of which he has knowledge or of which by the exercise of ordinary care he would have knowledge.</p>

<p>Action on the case. Appeal from the Circuit Court of Knox County; the Hon. Geobqe W.’ Thompson, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Putnam county; the Hon. Leslie D. Puterbaugh, Judge, presiding.

<p>Replevin. Appeal from the Circuit Court of McHenry county; the Hón. Charles H. Donnelly, Judge, presiding.</p>

<p>1. Expert witness—what facts may be established by opinions of. It is competent to show by expert witnesses that the effect of constant wear on a hardwood surface is to render it smooth.</p> <p>2. Assumed bisk—when question of, one of fact for jury. Whether the execution of an order of a foreman was attended with such danger that a man of ordinary prudence having knowledge of the situation would not have incurred it is a question of fact for the jury to determine.</p> <p>3. Assignment of ebbob—when deemed waived. An assignment of error not argued is deemed to have keen waived and will not he considered upon appeal.</p>

<p>Action in assumpsit. Error to the Circuit Court of Livingston county; the Hon. Thomas M. Harris, Judge, presiding.</p>

<p>1. Abgument oe counsel—how cannot he preserved for review. Remarks made by counsel in his argument to the jury cannot be preserved for review by affidavit. They must be set forth in the bill of exceptions.</p> <p>2. Vebdict—when set aside. Where the evidence apparently preponderates for the appellant and there is some error appearing in the record, together with an affidavit showing newly discovered evidence, the verdict will be set aside and a new trial awarded in the interests of justice.</p>

<p>1. Rule—Question of power of conductor to waive, for jury. Whether a,' conductor has authority to overcome a notice posted in a car and to waive a rule of the company expressed in such notice, is a question for the jury.</p> <p>2. Arguments of counsel—what improper. Arguments of counsel which are outside of the evidence and which have a tendency to inflame the jury are improper and are ground for a new trial.</p> <p>3. Instruction—error to refuse, which is correct in law and presents proper theory of defense. An instruction which states a correct principle of law and which is applicable to the evidence and which presents a theory of defense supported by evidence should be given.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of LaSalle county; the Hon. Richabd M. Skinneb, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Juror—what proof of misconduct of, essential to set aside verdict. A verdict will not be set aside upon a mere suspicion that a juror has been guilty of misconduct; the evidence of his misconduct must be clear and convincing.</p> <p>2. Verdict—when not disturbed as excessive. A verdict will not be disturbed as excessive where the evidence is conflicting and where the amount awarded is not clearly too large.</p>

<p>Action in assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. Theodobb N. Gbeen, Judge, presiding.</p>

<p>Action in case for damages to real property. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.</p>