Volume 136 — Illinois Appellate Court Reports

<p>Assumpsit. Appeal from the Circuit Court of Crawford County; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Action in debt. Appeal from the City Court of Alton; the Hon. James E. Dunnegan, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Wayne County; the Hon. Jacob R. Creighton, Judge, presiding.</p>

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

<p>1. Verdict—when not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence unless it is clearly and manifestly against the weight of the evidence.</p> <p>2. Highway commissioners—when not liable for damages to adjoining landowners. The highway commissioners of a township have a right to grade and improve the highway or road by grading the same; and if they do so in a reasonably careful and safe manner they are not liable to the owners of adjoining lands for damages for such grading, within the highway.</p>

<p>Joint liability—when plaintiff need not make proof of. In the absence of a plea in bar verified by affidavit, the plaintiff is not required, in the first instance, to make proof of joint liability.</p>

<p>Book entries—when preliminary proof of, insufficient. Book entries are not competent where proof of their correctness is not made either by the maker thereof or by one who is able of his own knowledge to testify to their correctness.</p>

<p>Petition for sale of real estate to pay debts. Appeal from the County Court of Massac County; the Hon. Lannes P. Oakes, Judge, presiding.</p>

<p>Statute of Frauds—when does not apply. The statute of frauds does not apply to a resulting trust.</p>

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

<p>Common counts—when recovery cannot he had under. While the remedy under the common' counts is a broad and liberal one, yet there must always be something to connect the party sought to be charged with the transaction upon which the suit is based before a recovery may be had thereunder.</p>

<p>Fraudulent conveyance—what not. The conveyance of a homestead of $1,000 or less in value cannot he made in fraud of a creditor, although the householder may have had the debt of the creditor in view when making the conveyance.</p>

<p>1. Instructions—when does not contain prejudicial omission. An instruction which does not purport to sum up the entire case is not erroneous in failing to state a particular proposition of law applicable to the case, if the same, standing alone, is a correct statement of the law.</p> <p>2. Arguments or counsel—what proper; what not. It is proper for counsel to refer to the fact that a party has introduced no evidence, but it is not proper for counsel to refer to the fact that witnesses for such party were present in court, without any evidence of that fact appearing in the record.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of flardin County; the Hon. Jacob R. Creighton, Judge, presiding.

<p>1. Verdict—when not disturbed as against the evidence. A verdict will not be disturbed on review as against the weight of the evidence unless the Appellate Court is impelled by the record to the conclusion that the finding of the jury is clearly contrary to the weight of the testimony or the result of prejudice, passion or improper conduct on their part.</p> <p>2. Verdict—when not disturbed as excessive. The admeasurement of damages is primarily the burden of the jury, and unless it is apparent from the record touching that question that the damages assessed are out of due proportion to the injury and the loss resulting proximately therefrom, such assessment will not be disturbed on review.</p> <p>3. Hypothetical question—when properly framed. Held, under the authority of City of Chicago v. Didier, 131 Ill. App., 406, that the hypothetical question and answer thereto complained of in this case were proper.</p> <p>4. Instructions—must not give undue prominence to particular issue. An instruction is properly refused which gives undue prominence to a particular issue in the cause.</p> <p>5. Instructions—ultimate test of soundness of. The ultimate test of the soundness of instructions is not what the ingenuity of counsel can, at leisure, work out the instructions to mean, but how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary men and jurors understand the instructions.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Verdict—when not disturbed as excessive. A verdict will not be disturbed as excessive unless the result reached is palpably and clearly the result of passion, prejudice or undue influence.</p> <p>2. Witness—power of court to permit correction of testimony by. It is within the sound discretion of the trial judge to permit or refuse to permit a witness to retake the stand and make a correction in testimony already given.</p>

<p>1. Res ipsa loquitur—when doctrine of, applies. A presump- ■ tion of negligence arises where a passenger is injured as the result of a collision between the car upon which she is riding and another of the cars of the same carrier.</p> <p>2. Medical expert—what may testify to. A medical expert, not an attending physician of the plaintiff, may testify to tests made, not for purposes of treatment, but in order to qualify and give his evidence as an expert.</p> <p>3. Hypothetical question—when properly framed. A hypothetical question is properly framed which concludes as follows: “Assuming all these matters to be true, can you, as a physician and surgeon, form an opinion as to what caused her condition?”</p> <p>4. Verdict—when not disturbed as against the evidence. A verdict will not be disturbed on review as against the evidence unless manifestly against the weight thereof.</p>

<p>, 1. Set-off—when objection to sufficiency of notice of, comes too late. An objection to the sufficiency of a notice of set-off comes too late when first made on appeal.</p> <p>2. Set-off—what considered in connection with notice of, to determine question of sufficiency. A bill of particulars filed with a notice of set-off will be considered in connection with such notice in order to determine the sufficiency of such notice.</p> <p>3. Vendor and vendee—what justifies delay in rejection of merchandise. Where merchandise is furnished pursuant to contract, delay in rejection is justified where attempts to remove defects were being constantly but unsuccessfully made by the vendor up to the time of the rejection.</p>

<p>Action in ease for personal injuries. Appeal from the Superior Court of Cook County; the Hon. A. H. Frost, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>Bill for injunction, etc. Error to the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>1. Library tax—to whom payable. A library tax is payable not the library board but to the city.</p> <p>2. Library tax—how should be extended. A library tax is properly extended as a part of the general tax levied upon behalf of the city with respect to which it is assessed.</p> <p>3. Equity—when has no jurisdiction of matter of accounting. Equity has no jurisdiction to determine a question as to what amount collected in taxes, if any, a county has illegally withheld from a city; assumpsit is the remedy. The county is not a trustee for the city for which it collects taxes.</p>

<p>1. Finding or court—when not disturbed as against the evidence. The findings of the court as to the facts in a cause where it is tried without a jury are entitled to the same presumptions as the verdict of a jury, and such findings will not be set aside on the ground that they are contrary to the weight of the evidence unless manifestly so.</p> <p>2. Assumpsit—what form of promise will support. A promise to pay in words as follows: “I will pay you as soon as possible,” is sufficient to sustain assumpsit without proof that it was possible for the defendant to pay.</p>

<p>1. Remittitur—when does not cure excessiveness of verdict. A remittitur does not cure a verdict which is apparently the result of prejudice, passion or misconception.</p> <p>2. Alienation of affections—what evidence tends to establish. In an action for damages by a husband against a third party alleging alienation of affections, a decree of divorce granted at the instance of the wife tends to show that the affections of the wife were alienated by the plaintiff’s own conduct.</p> <p>3. Argument of counsel—when impropriety of, not subject to review. The impropriety of the remarks of counsel in argument are not subject to review where such remarks were not objected to in the trial court.</p>

<p>1. Verdict—when not disturbed as against the evidence. A verdict will not he disturbed on the ground that it is against the weight of the evidence unless it is manifestly so.</p> <p>2. Express company—when refusal of consignee to sign receipt proper. A consignee may properly refuse to sign a receipt when less than the whole number of articles called for by the receipt are delivered or tendered for delivery.</p> <p>3. Assault and battery—when corporation liable for. A corporation is liable for an assault and battery committed by one of its servants where the servant at the time of committing such assault and battery was acting in an effort to carry out the orders of the corporation.</p>

<p>1. Conversion—when bailee guilty of. An unauthorized sale by a bailee is a wrongful conversion.</p> <p>2. Pawn broker—when acquires no title in pledge. If the pledge is obtained from a party who has embezzled the same, the pawn broker acquires no title thereto. The true owner may recover the same or the value thereof in an appropriate action instituted for that purpose.</p>

<p>1. Peremptory instruction—character of motion for. A motion to take a case from the jury is in the nature of a demurrer to the evidence, and, except as to technical methods of procedure, is governed by the same rules. The maker of the motion so to instruct admits the truth of all opposing evidence, and all inferences which may be fairly and rationally drawn from it.</p> <p>2. Peremptory instruction—when should he refused. A peremptory instruction should be refused if the evidence, with all the legitimate inferences which may be deduced from it, tends to support the plaintiff’s case, and if the jury could without acting unreasonably in the eye of the law, decide in favor of the plaintiff.</p> <p>3. Contributory negligence—when use of defective sidewalk not. It is not contributory negligence as a matter of law for a pedestrian to forget that there is a hole in a particular sidewalk, nor is it negligence per se to walk rapidly upon such a sidewalk, nor to fail to look at the sidewalk while walking thereon.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tut-hill, Judge, presiding.

<p>1. Insurance—when equity has jurisdiction to enforce contract of. An. association, not incorporated, composed of a numerous and constantly shifting membership, with a manager having authority under the organization agreement to appear and defend suits for the association and an executive committee in control of funds, is subject to equitable jurisdiction in an action to enforce a contract of insurance.</p> <p>2. Insurance—when cancellation ipso facto does not result. Withdrawal from an association of underwriters like the one involved in this case does not ipso facto cancel a policy of insurance issued to the party withdrawing.</p> <p>3. Insurance—how cancellation provisions construed. Cancellation provisions contained in a policy of insurance are strictly construed.</p> <p>4. Insurance—when cancellation not effected. A policy of insurance is not canceled where there has been no return or tender of return of unearned premiums.</p> <p>5. Equity—when will take jurisdiction. That no exact precedent can be found for the interference of equity, affords no reason for denying relief if equitable principles demand it. In the case at bar to avoid multiplicity of suits, and because the members of the association are numerous and widely scattered, because an accounting is necessary and because the administration of a trust fund is involved, equity will take jurisdiction.</p> <p>6. Equity—extent of relief granted under. Where there is jurisdiction in equity to grant relief at all, and where it is desirable so to do and can be done without perversion or straining of the law, jurisdiction will be retained to do final and complete justice between the parties.</p> <p>7. Specific performance—what prayer sufficient to authorise relief of. The prayer for general relief is sufficient to authorize the award of specific performance.</p> <p>8. Contract—what competent to aid in interpretation of ambiguous. Circumstances surrounding the execution of the agreement and those tending to show the construction which the parties to it themselves put on it, are properly received in evidence to show the meaning and effect of an ambiguous undertaking.</p> <p>9. Decree—when should not be disturbed. An allowance made by a master which is carried forward in the decree cannot be successfully complained of on review where no objection or exception was taken to such allowance.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Negligence—when declaration sufficiently charges, against traction company. Held, that the declaration in this case sufficiently set up a cause of action in favor of a pedestrian injured at a street crossing.</p> <p>2. Evidence—when opinion as to rate of speed competent. A witness who has had experience in judging rates of speed is competent to testify as to the rate of speed at which a car was going at a particular time.</p> <p>3. Personal injuries—lohat competent upon question of. A family physician and a lay witness acquainted with the facts are both competent to testify as to whether in their opinions a child who had received an injury has grown in intelligence with her years.</p> <p>4. Verdict—when not excessive. A verdict of $3,600 rendered in an action for personal injuries is not excessive where it appears that the plaintiff, a child, had been severely and permanently injured, especially with respect to arrested mental development, change of character, etc.</p> <p>5. Instructions—need not repeat. The court may properly refuse an instruction the substance of which is embodied in another given.</p> <p>6. Instructions—upon what should he predicated. Instructions upon the question of due care are properly refused where not predicated on the finding by the jury that the hypothetical acts complained of were negligent upon the part of the plaintiff considering her age, knowledge and experience.</p>

<p>1. Verdict—when excessive. A verdict for $3,000 rendered in an action on the case for personal injuries is excessive where it appears that the injuries complained of consisted mainly .of a broken leg with some problematical permanent effects, not definitely or fully established by the evidence.</p> <p>2. Instructions—when should he accurate. Where a case upon its facts is close, instructions should be particularly accurate.</p> <p>3. Instruction—danger of abstract propositions of law. The giving of abstract propositions of law in a closely contested case is dangerous, for even when they cannot in themselves be said to embody false statements of law, they may be misleading, as applied to the facts of the case in which they are given.</p> <p>i. Instructions—care with which, should he drawn. In a close case instructions which are vague, indefinite and unduly general in defining the issues, are misleading, and should not be given.</p> <p>5. Instructions—when too general in form. In a close case involving a personal injury, an instruction which speaks of “wrongful acts, negligence and defaults,” even limiting them to such as were charged in the declaration, is too general and liable to mislead.</p> <p>6. Sidewalk—when instruction as to liahility of city for safe condition of, erroneous. An instruction upon this subject as follows, in a close case, is erroneous:</p> <p>“The jury are instructed, as a matter of law, that any person traveling upon a sidewalk of a city which is in constant use by the public, has a right when using the same with due diligence and care to presume, in the absence of knowledge to the contrary, and to act upon the presumption, that it is reasonably safe for ordinary travel throughout its entire width, and free from all dangerous holes, obstructions, or other defects.”</p> <p>7. Sidewalk—what not duty of city with respect to. A city is not bound to keep its sidewalks free from all defects of every kind and character.</p> <p>8. Evidence—when upon value of services improper. Where the question is “What is the value of your services in that case?” and the answer given is, “I have sent a bill for $500,” the answer is irresponsive and should be stricken out.</p> <p>9. Leading questions—when proper. In the re-direct examination of a witness leading questions may properly be allowed if the purpose is to explain, develop or modify new matter brought out on cross-examination.</p>

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

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. R. W. Weight, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Passenger and carrier—when latter liadle to former for injuries resulting from collision. Held, under the evidence, that the carrier was liable to the passenger for injuries resulting by reason of the car of the carrier being run so close to a wagon alongside the track of the car as to result in an injury by reason of the resulting collision.</p> <p>2. Verdict—when not excessive. - A verdict for $6,000 rendered in an action for personal injuries is not excessive where it appears that the injury was a permanent one, which gave continual pain, which lessened the efficiency of the plaintiff for work and led to his losing employment after he secured it, and was such as would grow worse rather than better as he increased in age.</p> <p>3. Evidence—when X-ray photograph competent. An X-ray photograph, properly verified, showing the injury complained of, is competent.</p>

<p>1. Agent—form of action where guilty of breach of duty. For the breach of a duty an agent owes to his principal, the action may be in assumpsit for the breach of the implied promise, or in case for the breach of the implied duty.</p> <p>2. Principal and agent—extent of authority under power of sale. An agent authorized to sell cannot, without the knowledge or consent of the principal, become the purchaser of the property he is authorized to sell.</p> <p>3. Principal and agent—right of former to repudiate unauthorized sale. If a trust company authorized to sell make a sale to itself, or to one of its officers, the principal, upon learning the facts, is entitled to repudiate the transaction.</p> <p>4. Trust company—when sale by, constitutes breach of trust. A trust company authorized to settle or compromise a money demand is guilty of a breach of trust if it sells such demand to one of its own officers who is acting upon the opinion, uncommunicated to the client of such trust company, that a greater sum can be realized upon such demand than that which was being paid therefor.</p>

<p>1. Negligence—what constitutes, in operation of elevator. It is negligence to send up an elevator cab or platform, while the doors leading to the elevator shaft are open and the shaft unguarded.</p> <p>2. Negligence—who not liable for. Held, under the evidence in this case, that the defendants were not liable for the negligence charged, upon the theory that they were agents acting for undisclosed principals.</p> <p>3. Negligence—who not liable for acts of servant. One who hires for another a servant is not liable for the negligent acts of such servant committed in his employment where such servant owed duty to and was subject to the control only of the person for whom he was hired.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Master in chancery—when authority of, cannot he questioned. A decree predicated upon a master’s report will not be reversed because of the master’s having taken proofs under a cross-bill and making report with respect thereto without the subject-matter of the cross-bill having been included in the order of reference, where no objection in the lower court was made to such action of the master.</p>

<p>Action of debt. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Frost, Judge, presiding.</p>

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

<p>1. Alimony—when allowance of, erroneous. Allowance of alimony is erroneous if predicated upon a hill of complaint which shows no ground for relief.</p> <p>2. Divorce—when Mil for, does not sufficiently charge desertion. A bill for divorce which upon its face shows that the desertion has not continued for the statutory period of two years, does not sufficiently charge desertion as a ground for relief.</p> <p>3. Divorce—when MU for, does not sufficiently charge adultery. A bill for divorce which alleges that “the defendant has for a'considerable time past given himself over to adulterous practices and is now living an adulterous life” does not show ground for relief.</p> <p>4. Divorce—when Mil for, does not sufficiently charge adultery. A hill for divorce on the ground of adultery is insufficient if it fails to state the time, place, circumstances or the name of the person with whom such act of adultery was committed, or an excuse for the omission to state such particulars.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Insteuctions—rule requiring presentation of, at conclusion of evidence, construed. The rule of the Circuit Court which requires all instructions to he presented at the conclusion of the evidence does not in its terms or scope prevent the court from giving an instruction not so presented if in the court’s opinion it is proper so to do.</p> <p>2. Malicious ebosecution—what constitutes probable cause. Reasonable grounds for suspicion supported by circumstances sufficiently strong to warrant in a cautious man belief of guilt, constitute probable cause.</p>

<p>Negotiable instrument—when composition agreement cannot affect drawer's liability upon check, A composition agreement entered into between the drawer and a payee of a check cannot affect the liability of such drawer upon the check where before the making of such composition agreement it has passed by indorsement into the hands of an innocent holder for value.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>1. Fellow-servants—when rule with respect to, precludes recovery. No recovery can be had where it appears that the plaintiff’s injuries resulted from the negligence of a fellow-servant directly co-operating with him in the particular business in hand at the time of the accident, and that their respective duties were such as brought them into habitual association such that they might exercise an influence upon each other promotive of proper caution.</p> <p>2. Fellow-servants—definition of, construed. One may be a fellow-servant if his co-operation be in the particular work in which the injured servant was employed; he need not be engaged with such servant in doing the identical thing at the same time.</p> <p>3. Safe place to work—extent of duty of master to provide. The duty of the master to provide a safe place for a servant to perform his duties and to use reasonable care to maintain its safety does not involve the duty “to have a representative present at every moment to keep the place * * * safe as against all possible negligence of a co-employe.”</p>

<p>Bill in chancery. Appeal from the Superior Court of Cook County; the Hon. Willabd M. McEwen, Judge, presiding.</p>

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

<p>Conduct of counsel—when ground for reversal. A baseless insinuation brought by counsel to the attention of the jury, if prejudicial, is ground for reversal.</p>

<p>1. Architect’s certificate—when waived as condition precedent to recovery. The presentation of an architect’s certificate as a condition precedent to payment is waived where it appears that during the progress of the work the architect left the State, Severed his connection with the owner, and the owner paid without regard to the presentation of such certificates.</p> <p>2. Common counts—when recovery can he had under. Recovery may be had under the common counts where it appears that the contract made the basis of the action was fully performed and nothing remained to be done but to pay the money due thereunder.</p> <p>3. Instruction'—when does not proceed upon theory of account stated. The following instruction does not proceed upon the theory of an account stated, but is upon the hypothesis of an express promise to pay:</p> <p>“If you believe from the-evidence in this case that shortly after the first of January, 1903, W. W. Ramsey, the president of the plaintiff, presented to William D. Boyce, the defendant, an account of the extra material which said Ramsey claimed that the plaintiff had furnished for said defendant’s mill building and that the defendant, William D. Boyce, made no objection thereto and promised to pay the same, then you are instructed that the plaintiff is entitled to recover the amount stated in said bill for extras.”</p> <p>4. Instruction—when upon performance of contract not erroneous. An instruction as follows, is not erroneous in leaving to the caprice of the jury to say what are technical, inadvertent and unimportant omissions:</p> <p>“You are instructed that if you believe from the evidence that the plaintiff and defendant entered into a contract offered in evidence in this case, and that there has been no material departure from the terms of the contract and plans, or omissions in essential points, and that the plaintiff has honestly and faithfully performed the contract in all its material and substantial particulars, then the plaintiff will not be held to have forfeited its right to remuneration by reason of mere technical, inadvertent and unimportant omissions or defects.”</p>

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

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

<p>1. Common cabbies—who within legal definition of. A parcel delivery company is a common carrier.</p> <p>2. Ordinance—who not in position to question validity of. A party is not entitled to question the validity of an ordinance with respect to a portion thereof which has not been enforced against it.</p> <p>3. Ordinance—when not invalid as illegally discriminative. An ordinance requiring the licensing of public carts, etc., held not invalid as illegally discriminating between different classes of vehicles.</p>

<p>1. Scire facias to revive judgment—when plea in, insufficient. A plea interposed in an action to revive a judgment is bad on demurrer if it is predicated upon an averment against the record made the basis of the action.</p> <p>2. Scire facias to revive judgment—when presumption of regularity of judgment prevails. Where the judgment upon which the proceeding is predicated is not contained in the bill of exceptions, it will be presumed that the record was regular and that it showed service upon the defendant.</p> <p>3. Scire facias to revive judgment—how issue in, tried. The defendant in a proceeding by scire facias to revive a judgment is not entitled to a trial by jury where the only issue presented is to be determined by the record alone.</p> <p>4. Scire facias to revive judgment—when form of judgment in, sufficient. In a proceeding by scire facias to revive a judgment, the judgment to be entered should be simply “that the plaintiff have execution for the judgment mentioned in the said scire facias and costs,” and a judgment which is in effect this, is sufficient.</p>

<p>Trespass. Appeal from the Circuit Court of Cook County; the! Hon. Richard S. Ttjthill, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Trespass quare clausum fregit-—gist of action of. The gist of the action of trespass quare clausum fregit is the breaking and entering, by force and arms, the plaintiff’s close, and the term “close” so used, being technical, signifies an interest in the soil, and not merely a close or enclosure in the common acceptation of the term.</p> <p>2. Trespass quare clausum fregit—when declaration in, sufficiently describes real estate alleged to have been invaded. A declaration in an action of trespass quare clausum fregit sufficiently described the locus in quo where it alleges the same as a certain close of plaintiff in a particular county.</p> <p>3. Trespass quare clausum fregit—effect of plea of general issue in action of. In an action of trespass quare clausum fregit, the plea of the general issue does not put the plaintiff under proof of title; it only calls for proof of possession.</p> <p>4. Evidence—when plat of real estate competent. Maps, plats and diagrams, explanatory of locations, may be introduced in evidence in connection with the testimony of a witness, in verification thereof.</p> <p>5. Declaration—what equivalent to averment of malice. It is not necessary in order to aver malice that the word “malice” be used or that the words “wantonly and wilfully” be employed. It is enough if the allegations of fact be such as will enable the court to draw therefrom the conclusion that malice did exist.</p> <p>6. Exemplary damages—what not essential to award of. It is not necessary to warrant a finding of exemplary damages that express malice should be specifically averred or proved.</p> <p>7. Instructions'—when writing upon margin of, “guilty," instead of “given," not ground for reversal. The action of the court in inadvertently writing the word “guilty” instead of the word “given” on the margin of one of the instructions given to the jury, is not ground for reversal where it appears from affidavits filed upon the motion for a new trial that the instructions were not handled or read in the jury room by any of the jurors except the foreman, that he read the instructions aloud to the jury and did not read nor notice the marginal indorsement so inadvertently made.</p>

<p>Judgment by confession. Appeal from the Circuit Court of Me-Henry County; the Hon. Chables H. Donnelly, Judge, presiding.</p>

<p>Injunction—when does not lie to enjoin holding of election. An injunction will not be granted to restrain the holding of an election under clauses 11 and 12 of section 147 of the school laws of Illinois to vote upon a proposition to- build a new school house; if the election sought to be held would be void if held, tne remedy is to wait until the election has been held and then to apply for an injunction to restrain the carrying out of the proposition, if it is determined by such election to carry out the same.</p>

<p>1. Contract—how character of, determined. In determining the real character of a contract, courts will look to its purpose rather than to the name given to it by the parties.</p> <p>2. Vendor and vendee—when contract creates relation of. Held, that the contract in question in this case, created the relation of vendor and vendee and not that of principal and agent.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibble, Judge, presiding.</p>

<p>1. Evidence—how proof of handwriting may he made. Proof of the genuineness of handwriting may he made by witnesses, not experts, who if they have more or less experience with respect to matters of handwriting may properly be permitted to state their conclusions for believing that a signature in question is genuine.</p> <p>2. Cross-examination—when undue restriction of, will not reverse. The undue restriction of cross-examination will not reverse where the questions excluded were collateral to the main issue and would only have a bearing as tending to show some feeling or bias upon the part of the witness.</p> <p>3. Arguments of counsel—right to open and close. The right to open and close is a substantial right and not one which may be granted or refused in the discretion of tne trial judge.</p> <p>4. Arguments of counsel—when complaint cannot he made of denial of right to open and close. A party cannot complain of the court’s denial of his right to open and close an argument, where he has insisted in the lower court that the Durden of proof was upon the other party (the defendant) and where the court adopted that theory of the case.</p>

<p>Action on the case. Appeal from the Circuit Court of Carroll County; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Master and servant—for what defects in machinery master not liable. A master is not responsible to his servant for latent defects in machinery or appliances used in his business of which he has no knowledge or means of knowledge. No defect is latent which an inspection will disclose. But it will not be presumed, in the absence of proof, that an inspection will disclose an apparently latent defect.</p>

<p>Assumpsit. Appeal from the County Court of DuPage County; the Hon. M. O. Southwobth, Judge, presiding.</p>

<p>Criminal prosecution for violation of Dram-Shop Act. Error to the County Court of Warren County; the Hon. J. W. Clendennin, Judge, presiding.</p>

<p>1. Change of grade—when city liable for. A city is liable for a change of grade and an inadvertent invasion of private property, notwithstanding the work done may not appear technically to have been authorized by the proper authorities. The presumption is that work upon the streets of a city performed under the direction and supervision of officials thereof, is done with the authority of the city, and such authority will be presumed in the absence of proof to the contrary.</p> <p>2. Estoppel—when does not preclude liability of city for invar sion of private property. Where a city in performing work upon its streets invades private property through a mistake of its engineer with respect to the street line, an owner is not estopped from making claim for damages because he sees the invasion take place and is silent with respect to the location of such line.</p> <p>3. Abstract—when reviewing court will look to record. Where an abstract is defective a reviewing court will not look to the record for reasons for reversal, but may examine the same for the purpose of assigning reasons for affirmance.</p>

<p>Bill in equity. Appeal from the City Court of Elgin; the Hon. John L. Healt, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Bureau County; the Hon. R. M. Skinner, Judge, presiding.</p>

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

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Lee County; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Stephenson County; the Hon. Richard S. Farhand, Judge, presiding.</p>

<p>' 1. Repeal—when effected by implication. Repeals by implication are not favored but where there is an irreconcilable inconsistency between an earlier and a later act which indicates an intention upon the part of the legislature to repeal the earlier act, then a repeal by implication will follow.</p> <p>2. Tax sales—remedy of purchaser where, made in error. The sole remedy now provided by statute to a purchaser where a sale has been made in error, is to obtain a refund of his money. The former act which provided not only for a refund but for an additional one hundred per cent has been repealed by implication.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding.</p>

<p>Supreme court—when Appellate Court should transfer appeal to. Notwithstanding the judgment in the lower court rendered in a cause was entered prior to the amendment of 1907, yet it is the duty of the Appellate Court, where it finds that an appeal should have been taken to the Supreme Court, to transfer the case to that court, where the case is considered in the Appellate Court after that act went into effect.</p>

<p>Action in covenant. Error to the Circuit Court of Mercer County; the Hon. Emery C. Graves, Judge, presiding.</p>

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

Contributory negligence—when person injured at railroad crossing guilty of. Held: from the evidence in this case, that the plaintiff who was approaching a railroad crossing in a wagon, studying a book, was guilty of such contributory negligence, as a matter of law, which barred a recovery, Action in case for death caused by alleged wrongful act.

<p>Bill for specific performance. Appeal from the Circuit Court of Mercer County; the Hon. Emery C. Craves, Judge, presiding.</p>

<p>Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>1. Employer and employee—duty of latter upon wrongful discharge. It is the duty of an employee wrongfully discharged to seek and accept other employment of the same kind if'he can reasonably obtain it, and the measure of damages is merely nominal if he obtains employment at as large or at a larger remuneration than that from which he was discharged, but if at a less rate, then the difference between what he received and the agreed salary would be the measure of damages.</p> <p>2. Instruction—when not predicated upon evidence not ground for reversal. Where the transcript does not purport to contain all the evidence, an instruction predicated upon no evidence contained in the transcript is not ground for reversal. It will be presumed that the omitted portions of evidence sufficiently support the instruction complained of.</p>

<p>1. Boundary lines—location of, with respect to city lots. The true boundary lines of a city lot are where they are actually marked by the monuments fixed by the surveyor to indicate where they are to be found, and the most satisfactory evidence of the place where the lines were located is afforded by the original stakes.</p> <p>2. Instruction—upon credibility of witness; when erroneous. An instruction is of doubtful propriety which permits the jury to pass upon the credibility of witnesses by means of a consideration, among other things, of all “the other circumstances appearing on the trial.”</p> <p>3. Instruction—upon preponderance of evidence; when erroneous. An instruction which requires that the evidence shall preponderate in favor of the plaintiff as to all the allegations of the declaration is erroneous. It is enough if the plaintiff shall prove by a preponderance of the evidence all the material allegations of his declaration.</p>

Action in case for death caused by alléged wrongful act. Appeal from the Circuit Court of Will County; the Hon. P. L. Hooper, Judge, presiding.

<p>1. Instruction—upon question of negligence as basis of recovery; when erroneous. An instruction is erroneous which standing alone permits recovery upon proof of any negligence, but such instruction is cured where the instructions as a series authorize a verdict only where the negligence charged has been established.</p> <p>2. Declaration—when sufficiently alleges constructive notice. A declaration sufficiently charges constructive notice which alleges that the dangerous condition “was well known to the defendant or would have been known to it by the exercise of ordinary care in the discharge of its duty.”</p> <p>3. Husband and wife—when former competent as witness for latter. In an action for personal injuries by the wife, the husband is a competent witness.</p> <p>4. Trial—when objection as to time of, comes too late. A party who goes to trial without objection cannot after an adverse verdict object to the time and order at or in which the case was tried.</p> <p>5. Verdict—when not excessive. A verdict reduced by remittitur to $900, rendered in an action for personal injuries, is not excessive where it appears that the injury complained of was of five years’ duration, was to the elbow joint, was permanent and caused the suffering of much pain.</p> <p>6. City—when liable for injury resulting from obstruction. It is for the jury to determine whether a valve box placed in a street in violation of ordinance, was such an obstruction, which resulting in a personal injury, as rendered the city liable.</p>

<p>Partnership—what implied with respect to agreement as to terms of dissolution. If one partner is given the right, at certain specified periods, to retire from a firm and obtain back his capital invested therein, an implied undertaking exists that in the event of such partner so retiring, he will accept for his interest in said partnership the amount his co-partners agreed in such case to pay to him. Such retiring partner is not entitled to participation in any portion of undivided profits.</p>

<p>1. Negligence—when running upon street vjith defective brake constitutes; when not. Whether to run a car on a public street at eight or nine miles per hour with the brake chain entirely unwound constitutes or does not constitute negligence, depends upon conditions and circumstances. Such operation may amount to and constitute negligence at a street crossing or in a crowded street of a great city, but not be negligence upon an ordinary street.</p> <p>2. Negligence—duty of motorman with respect to operation. A motorman is required to operate his car with reference to perils which reasonably might be expected to occur, and if from and because of the presence of so many young children on the sidewalk who have just been dismissed from school, the jury might, as reasonable men, find that the motorman should reasonably have anticipated the danger that any of such groups of children might run into the street and upon the track in front of the car, then a duty on his part with respect to the operation of the car existed, and he was required in the discharge of that duty to act before the children disclosed any intention of crossing the street.</p> <p>3. Instructions—when rule requiring presentation of, at close of evidence, has no application. A rule of court which requires instructions to be presented at the close of the taking of the evidence has no application, where an instruction has been presented in apt time, is examined by the court and then handed back to counsel, with the suggestion by the court that in its then form it was erroneous, who amends it and returns it to the court with the request that it be given as amended.</p> <p>4. Ordinary case—must not submit to jury the question of duty to exercise. The law casts the duty upon a person to use ordinary care not to injure another, and such question should not be submitted to the jury. Whether such duty has been performed, however, is a question to be determined by that tribunal.</p>

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

<p>1. Corporation—when organized primarily for the purpose of holding real estate. A corporation organized for the purpose of leasing certain specified real estate for a term not to exceed ninety-nine years, upon which to erect a building for tenants, is organized to hold real estate within the prohibitory provision of the statute.</p> <p>2. Corporation—what constitutes charter of. The charter of a corporation consists of its articles of incorporation, taken in connection with the law under which the corporation is organized.</p> <p>3. Corporation—what essential to existence of, de facto. In order that there he a de facto corporation, two things are essential: First, there must be a law under which the corporation might lawfully be created; and second, user.</p> <p>4. Corporation—when question of existence of, may he collaterally attached. The existence of a corporation may he collaterally attacked if such corporation appears to be neither a corporation de jure nor one de facto.</p> <p>5. Corporation—what does not estop attach upon existence of. By contract with an organization as a corporation, estoppel does not arise to attack its corporate existence if such organization possesses neither the legal entity of a corporation de facto nor one de jure.</p>

<p>Fbaternal benefit society—who within definition of statutory beneficiaries, styled “persons dependent upon the member." One who has lived with the member as his wife, believing herself to be such, who was dependent upon such member for her support, comes within the statutory definition of “persons dependent upon the member,” notwithstanding she was not a lawful wife of such member, although designated as such in the certificate.</p>

<p>Forcible entry and detainer. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Landlord and tenant—covenant of lease to furnish heat construed. Where by the terms of a lease the landlord undertakes to supply steam heat, it is his business to see to it that his radiators and other means of supply are adequate, and that sufficient heat is supplied, and this notwithstanding the tenant’s acknowledgment in the written lease that he has received the premises in good order and his covenant to keep the same in good repair.</p> <p>2. Landlord and tenant—damages recoverable for failure of former to furnish- heat as agreed. Loss of time of employees and resulting extra wages required to be paid, arising through the landlord’s failure to supply heat as agreed, are proper to be considered in estimating the tenant’s damages.</p> <p>3. Judgment by confession—what evidence 'sufficient to entitle allowance of motion for leave to plead. In support of a motion to open up a judgment entered by confession, it is not essential to set forth all the evidence in detail; it is enough to show facts material to the issue, sufficient to make it clear that the issues are such as should be submitted to a jury. The rule is the same regardless of whether the evidence is shown by affidavits or by testimony ore tenus.</p>

<p>Assumed risk—what within doctrine of. While it is true that a servant does not assume all risks which may be incident to his employment, yet he does assume such usual and ordinary risks incident to his employment as the master must rely on him and has a right to expect him to detect and guard against which cannot be obviated by reasonable precautions by the master and where the means of protection are within the servant’s own control.</p>

<p>1. Declaration—when states cause of action for personal injuries arising from being struck by a falling drill. A declaration, alleging that the defendant was by its servants performing certain work and labor on a building specified, at a time specified; that the plaintiff was employed by a third party, on the date named, as a laborer, and that in the performance of his duties he was required to be upon a certain fire-escape and directly underneath a fire-escape upon which the servants of the defendant were working; that the servants of the defendant carelessly and negligently and unlawfully caused and permitted a large iron drill to fall from where they were working, and that the same struck the plaintiff on the head and thereby fractured his skull, states a cause of action.</p> <p>2. Verdict—when not excessive. A verdict reduced by remittitur to $3,000, rendered in an action for personal injuries, is not excessive where it appears that as a result of the accident there was a fracture of the outer table of the skull, and possibly of the inner table as well.</p>