Volume 138 — Illinois Appellate Court Reports

<p>Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Witnesses—when not disqualified by virtue of interest. A financial interest in the result of a suit does not disqualify a witness unless the adverse party sues or defends in a representative capacity.</p>

<p>These cases are controlled by the decision in Benting v. Bell, 137 Ill. App. 600.</p>

<p>Assumpsit. Appeal from the County Court of Cass county; the Hon. Darius Walker, Judge, presiding.</p>

<p>Freehold—when involved for purposes of appeal. A freehold is involved where it appears that the appeal requires the determination by the Appellate Court of the question as to whether a perpetual easement was acquired by the transaction in question.</p>

<p>Assumpsit. Appeal from the Circuit Court of Greene county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>1. Wills—what legacies are specific. The general rule is that a specific legacy is a gift of a specific part of the testator’s estate, identified and distinguished from all things of the same kind, and can only he satisfied hy the delivery of that particular thing.</p> <p>2. Administeatiom" Act—section 70 construed. Where renunciation is made under a will, no abatement of the specific and general legacies should be made if there is enough estate to satisfy the distributive share of the party renouncing and the claims of such specific and general legacies. The abatement contemplated by the statute is in the first instance to be borne by the residuary legatees.</p>

<p>Bill in chancery. Appeal from the Circuit Court of McLean county; the Hon. Colostm D. Myers, Judge, presiding.</p>

<p>Bill in chancery. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding.</p>

<p>1. Master and servant—upon what latter may rely. A servant has a right to rely upon the presumption that his master has exercised reasonable care in furnishing appliances and in providing a proper and reasonably safe place for him to work.</p> <p>2. Master and servant—what will preclude recovery by latter. A servant is not to be permitted to recover if he knows of two ways of performing his work and ignores the safe and adopts the dangerous method.</p> <p>3. Negligence—when charge of, not answered by contention that particular construction complained of was an engineering problem. Held, that there was no merit in the contention that the switch stand complained of in this case fell within the rule that the manner of constructing a railroad is an engineering question and that a railroad company is not required to adopt any particular method of construction nor any particular contrivance or device in order to be in the exercise of ordinary care for the safety of its employes. .</p> <p>4. Evidence—when incompetent as introducing collateral issue. In an action for personal injuries, it is proper to refuse to admit evidence that no previous accident had occurred at the switch, the construction of which was complained of in the cause at issue.</p>

<p>Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Habéis, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Vermilion county; the Hon. Isaac A. Love, Judge, presiding.</p>

<p>1. Res gestae—what part of. All statements or declarations made either by the defendant or by those standing by, referring to the commission of a crime, made contemporaneously with or immediately before the commission of such crime and in any way connected with or explanatory of such crime, are admissible as a part of the res gestae.</p> <p>2. Assault and battery—what evidence not competent in defense against charge of. Where the defense to a prosecution for assault and battery is self-defense, it is not proper to permit the defendant to answer the question as to whether he did any more than was necessary in defense of his person.</p>

<p>This case is controlled by the decision in Drake v. Lux, 125 Ill. App. 469.</p>

<p>Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding.</p>

<p>1. Justice oe the peace—jurisdiction of. to award damages. A justice of the peace has jurisdiction to award consequential -damages for injuries to personal property occasioned by negligence.</p> <p>2. Common cabbiebs—what essential to limitation of liability. To render a contract of shipment limiting the liability of the carrier, binding upon the shipper, the carrier must establish by the greater weight of the evidence that the shipper assented to the terms and conditions of the contract.</p> <p>3. Pbincipal and agent—what does not bar suit by undisclosed principal. An undisclosed principal is not debarred from prosecuting his action against one who contracts with his agent.</p> <p>4. Evidence—when opinion incompetent. It is improper to permit a witness to testify as to what in his opinion was a reasonable running time for a railroad between certain designated points.</p>

<p>1. Instruction—upon degree of proof; what proper. In a QMasi-criminal prosecution, it is not error to instruct the jury that before a verdict can be rendered against the defendant the plaintiff must make out its case by a "clear preponderance of the evidence.”</p> <p>2. Instbuction—when, upon presumption of innocence, properly given. It is proper to instruct the jury upon the presumption of innocence in a gwsi-criminal prosecution.</p>

<p>1. Master and servant—duty of former to regulate time and manner of running trains. It is a duty which the master owes to his servants to use reasonable care so to regulate the time and manner of running its cars that those of its servants who were engaged in operating them would be informed as to times and places and manner where and in which the same should meet and pass in order that collisions might be avoided.</p> <p>2. Assumed risk—when doctrine of, inapplicable. The doctrine of assumed risk has no application where the servant acts pursuant to an express order of his master. If, however, such servant, in obeying such order, is reckless, the doctrine of contributory negligence applies.</p> <p>3. Verdict—when not excessive. A verdict for $5,000 rendered in an action for personal injuries is not excessive where it appears that at the time of the injury the plaintiff was thirty-three years oí age, sound in health and limb, six feet tall and weighed 298 pounds; that he received a wound in his forehead extending from the hair to the eye which left a scar; that his entire left side was bruised and skinned, his leg and ankle twisted and his foot jammed; that he suffered and continued to sufier up to the time of the trial much pain and became unable to walk without the aid of crutches, and that a chronic tuberculosis condition, which may ultimately cause his death, exists in his foot.</p>

<p>1. Employer and employe—what does not affect right to salary. An employe is entitled to leave the service of his employer if his salary is not paid when due and he may recover for the unexpired portion of his term of service the same as though he had been wrongfully discharged.</p> <p>2. Employer and employe—contract for “annual” salary construed. A contract for an “annual” salary of $1,800 per year is a contract for an annual salary of such amount, payable in monthly instalments, where the parties by their conduct have so construed the same.</p>

<p>Action in case for personal injuries. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Definition—“wilfulness.” “Wilfulness” is “An entire absence of care for the life, the person or the property of others, such as exhibits a conscious indifference to consequences.”</p>

<p>1. Mechanic’s lien—wliat does not release surety upon contractor's bond. A surety upon a contractor’s bond is not released by the act of the owner in failing to withhold payments due by virtue of the work performed and materials furnished by the contractor.</p> <p>2. Mechanic’s lien—when subcontractor cannot enforce. A subcontractor cannot enforce a lien against an owner if he is a surety upon a contractor’s bond and his obligation upon such bond is such as to render him liable to the owner for the payment of any lien claims not specified by the contract.</p>

<p>1. Continuance—when action of court in denying motion for, not open to review. The action of the court in denying a motion for a continuance is not open to review where the motion for continuance and the affidavit filed in support thereof and the ruling of the court thereon are not incorporated in the bill of exceptions.</p> <p>2. Evidence—when admission of erroneous, will not reverse. The admission of erroneous evidence will not reverse where the verdict is amply sustained by competent evidence in the record.</p> <p>3. Instructions—when inaccuracies will not reverse. Erroneous instructions will not reverse where the verdict is amply sustained by competent evidence contained in the record.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Champaign county; the Hon. Solon Phil-brick, Judge, presiding.

<p>1. Railroads—statute requiring construction and maintenance of crossings and, approaches construed. The words of the statute in question, “crossing and approaches thereto,” include the surface occupied by such portion of the railroad track as is within the boundaries of the street, together with such additional surface as is occupied by embankments, bridges, grades or structures of any sort on each side of the railroad track which serve as the passage or way for approaching the crossing.</p> <p>2. Crossings—how may be used by pedestrian. When once within the boundaries of a railroad crossing a person has the right to travel thereon in any direction, lengthwise, crosswise or otherwise, and without regard to the place or direction from or in which he may have approached and entered upon such street, or whether or not he was a trespasser immediately prior to going upon the street.</p> <p>3. Crossing—when use of, not contributory negligence as a matter of law. It is not contributory negligence as a matter of law for one familiar with the conditions and dangers of a railroad crossing to undertake to use the same. The question of contributory negligence in such case is one for the jury.</p> <p>4. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review on the ground that it is against the weight of the evidence, unless clearly and manifestly so.</p> <p>5. Verdict—uohen not excessive. A verdict, reduced by remittitur to $3,500, in an action for death caused by wrongful act, is not excessive where it appears that the plaintiff’s intestate was at the time of his death sixty-five years of age, earned as a teamster from $3.50 to $4 per day, and left him surviving a widow.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>1. Evidence&emdash;when error in admitting, not cured By exclusion. Where prejudice is likely to have resulted, the action of the court in excluding evidence erroneously admitted will not prevent a reversal.</p> <p>2. Evidence&emdash;what not competent upon value of services rendered. Where the question is as to the value of services rendered, evidence of what has been paid or is being paid for the rendition of the same or similar services is not material.</p> <p>3. Administbation of estates-&emdash;scrutiny of claims presented. A claim presented against an estate of a deceased person is subject to no more scrutiny than such claim would be subjected to if it had been made the basis of a suit during the lifetime of the alleged debtor.</p>

<p>Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.</p>

<p>Instruction—when, upon question of negligence, erroneous. Held, that • an instruction is erroneous which qualified the terms “care” and “negligence” by the use of the adjectives “slight” and “ordinary.”</p>

<p>1. Contract—when, for conveyance of land, in contravention of statute. A contract to sell and convey a homestead, if not joined in by the wife of the householder, is in contravention of statute.</p> <p>2. Damages—when liquidated, cannot he recovered. Liquidated damages cannot be recovered for the breach of a contract in contravention of statutory law.</p>

<p>1. Insurance—effect of verified plea denying execution of policy. The interposition of a verified plea of the general issue casts upon the plaintiff the burden of proving the execution, delivery and acceptance of the policy sued on and that the same was in force at the time of the loss in question.</p> <p>2. Insurance—effect of effort to cancel. An effort to cancel a policy of insurance is an implied recognition of the existence and enforeibility of the policy.</p> <p>3. Evidence—effect of legal presumptions. Legal presumptions do not, strictly speaking, shift the burden of proof. The only effect of legal presumptions is to create the necessity of evidence to meet the prima facie case thereby created, and which would otherwise prevail.</p>

<p>Action in case. Error to the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>1. Master and servant—what proof essential to recovery by latter. The rule is that before a servant can recover for injuries caused by defective appliances, he must prove that the appliance was defective, and in what the defect consisted; that the master had, or might have had, in the exercise of ordinary care, notice of such defect, and that the servant neither knew of the defect nor had equal means of knowledge with the master.</p> <p>2. Master and servant—when duty of former to furnish reasonably safe place to worlc fulfilled. The duty of the master to furnish a reasonably safe place for a servant to work is fulfilled when he has used ordinary care in furnishing appropriate appliances which are ordinarily safe when properly used. The fact that machinery may be dangerous when improperly used, or that an accident happens to the servant in its use, is not a test of liability.</p> <p>3. Res ipsa loquitur—when doctrine of, does not apply. The doctrine res ipsa loquitur does not apply as between master and servant.</p>

<p>1. Verdict—when not disturbed as against the evidence. The probative force of the evidence is primarily for the determination of the jury and where the Appellate Court is unable to say, from the evidence in the record, that the verdict is contrary to its weight, it is not authorized to disturb the same.</p> <p>2. Instructions—must not pertain to immaterial issues. Instructions are erroneous and ground for reversal where they call upon the jury to determine matters immaterial to the issues and are calculated to mislead.</p> <p>3. Instructions—must be confined to questions of fact. Instructions are erroneous which submit to the jury the determination of questions of law.</p>

<p>1. Husband and wife—section 8 of Husband and Wife Act; how construed. This statute, being in derogation of the common law, must receive a reasonable construction and cannot be extended by implication to matters not fairly inferable from the words used.</p> <p>2. Husband and wife—what not family expense within meaning of section 8 of Husband and Wife Act. A stanhope purchased by a husband primarily for use by him in the discharge of his professional duties as a doctor, notwithstanding the same may occasionally be the subject of use by members of his family, is not a family expense within the meaning of section 8 of the Husband and Wife Act.</p> <p>3. Statute of Limitations—what does not toll, in an action under section 8 of the Husband and Wife Act, the running of the Statute of Limitations is not tolled as against the wife by the fact that a judgment had been obtained against her husband.</p>

<p>1. Attorney and client—when contract presumptively fraudulent. A contract made by an attorney with his client in relation to an' interest to be acquired by him in the subject-matter of pending litigation is presumptively fraudulent, and the burden is upon the attorney to prove the fairness of the contract, the adequacy of the consideration, and that it was in all its essential and material parts equitable and that no undue advantage growing out of the relationship of attorney and client has been practiced in its procurement.</p>

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

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

<p>Master and servant—what essential to recovery 8y latter of former. In order that a servant may recover for personal injuries alleged to have been sustained by him, it is incumbent that he establish, first, a neglect of duty by the master, and, second, the exercise of reasonable care by himself.</p>

<p>Replevin. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.</p>

<p>1. Demurrer—what waives action of court in overruling. Pleading to a declaration waives any error in the action of the court in overruling a demurrer to such declaration.</p> <p>2. Common counts—what essential to admissibility of promissory note under. A promissory note is not admissible under the common counts without proof of the signature of the maker. Such a note likewise is not admissible under a special count declaring thereon without proof of the averments of such special count.</p> <p>3. Promissory note—what establishes prima facie case in action upon. In the absence of a verified denial of execution, the production of a promissory note, without more, makes a prima facie case.</p> <p>4. Promissory note—when defenses of want of failure of consideration do not lie. A promissory note, the consideration for which is the plaintiff’s promise to do a particular thing, is not defensible either upon the want of or a failure of consideration where such plaintiff fails to keep such promise.</p>

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

<p>Secret society—when seceders from, not entitled to fund of. Members of a lodge who secede therefrom and form another organization have no right to the funds of such lodge if the same represents a branch of a larger organization to which it owes allegiance, where such lodge continues in existence, recognized by the larger organization, with enough members to constitute a lodge—its proceedings being regular.</p>

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

<p>1. Licensee—who is not mere. A person upon premises for the purpose of tending his live stock, temporarily stored thereon, is not a mere licensee where such premises have been specially provided by a company organized for its own profit as a place for temporary storage of live stock and as a place further where buyers and sellers of such live stock may meet and transact their business, but such a person is deemed to be upon the premises in question at the invitation of the owner thereof.</p> <p>2. Contbibtjtory negligence—what not, as a matter of law. It is not contributory negligence for the owner of live stock temporarily stored at a place provided for such purpose, to enter upon such premises in the dark for the purpose of feeding his stock.</p>

<p>1. Rescission-—what not ground for, of contract, of license. A contract licensing the use of a particular patent and providing a royalty cannot be rescinded unless it appears that the terms of such contract have been violated by the licensee.</p> <p>2. License—what constitutes waiver of provision of contract of. A provision in a contract providing for the payment of royalties, which requires the submission of sworn statements, is waived by the long-continued acceptance of unsworn statements without objection.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>1. Civil service commission—how rules of, must he proved. The only competent evidence of the rules of the civil service commission are the original rules adopted, or a copy, proved to he such by a witness who has compared such copy with the original rules and knows that such copy is correct.</p> <p>2. Civil Service Act—what proof sufficient to entitle recovery of compensation. Compensation may he recovered where it appears that the plaintiff duly took the civil service examination for a particular position, that he passed such examination and was certified to the commission, was appointed to and served in such position, that on charges preferred he was discharged, but that upon certiorari proceedings resulting from the discharge, the discharge was quashed.</p> <p>3. Res judicata—effect of certiorari proceeding as. In an action by a civil service employe to recover compensation the judgment in a certiorari proceeding instituted by him is res judicata with respect to the existence of the office fillefi by him and also with respect to his appointment.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Cook county; the Hon. Lewis Rinakeb, Judge, presiding.</p>

<p>Bill for accounting, etc. Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.</p>

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

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.

<p>1. Judgment—what obviates error in rendering, in excess of the ad damnum. Any error in rendering judgment in excess of the amount fixed by the ad damnum is obviated by a stipulation under which the ease was tried to the effect that the plaintiff might have the same benefit of all claims and causes of action, appearing from the statement- of facts, that he might have, if said causes of action were specially pleaded in appropriate special counts.</p> <p>2. Local impbovements—to what extent municipality liable to contractor. A municipality as a trustee and bailee of a special assessment fund is directly liable to a contractor who has constructed the improvement for which the fund was collected to the amount of the obligations held by him against the municipality, if the fund in the hands of such municipality, out of which said obligations are by their terms to be paid, is actually in its hands or is constructively, in the purview of the law, so in its hands.</p> <p>3. Local improvements—what not collection by municipality of amount assessed. The amount assessed against property for a local improvement is not deemed to have been collected where such property becomes delinquent and, in default of other bidders, is bought In by the municipality—-the contract between the municipality and the contractor containing a clause as follows:</p> <p>“In case the city of Chicago should become the purchaser of any special assessment certificate at any sale for the delinquent special assessments in default of other bidders, such purchase shall not be deemed a collection of such special assessment, and no act of the city done or suffered shall be construed as a collection of any special assessment or part thereof, until the money due -thereon shall be actually paid into the city treasury.”</p> <p>4. Local improvements—when illegal abatements upon, chargeable against municipality in favor of contractor. Abatements by the municipality, although made in good faith, if upon an erroneous view of the law, are illegal, and the amount thus paid out is chargeable against the municipality, and in favor of the contractor, notwithstanding a clause in the contract between such municipality and contractor in words as follows:</p> <p>“No act of the city done or suffered shall be construed as a collection of any special assessment or part thereof until money due thereon shall be actually paid into the city treasury.”</p> <p>5. Local improvements—when municipality chargeable with interest upon fund subject to claim of contractor. The municipality is chargeable with interest in favor of a contractor where (1) there is an express agreement, (2) money has been wrongfully obtained, and (3) money is illegally withheld.</p>

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

<p>1. Verdict—when in action 8y death caused 8y alleged wrongful act cannot he held excessive. There is no criterion, except the limit of -recovery authorized by the statute, by which the courts can judge of the excessiveness of a verdict for the death of a boy, mentally and physically healthy, with his life before him.</p> <p>2. Peremptory instruction—what does not justify giving of. A peremptory instruction should not be given even if the greater weight of the evidence does not sustain the allegations of the plaintiff’s declaration.</p> <p>3. Instruction—upon measure of damages in action for death caused hy alleged wrongful act, approved. An instruction upon this subject as follows is approved:</p> <p>“If you find a verdict in favor of the plaintiff, you are not confined in assessing the damages to the pecuniary value, if any, of the services of the deceased child to his next of kin until he would have arrived at the age of twenty-one, but the jury may consider the pecuniary benefit, if any, which the next of kin might have derived from said deceased at any age of his life, had he not been killed.”</p> <p>4. Instruction—when upon preponderance of evidence not erroneous. An instruction upon this subject is not erroneous which tells the jury that if they believe the evidence bearing upon the plaintiff’s case preponderated in his favor although but slightly, it would be sufficient to warrant a verdict in his favor.</p> <p>5. Instruction—when upon contributory negligence, not erroneous. An instruction upon the subject of contributory negligence given in an action brought for death of a minor caused by alleged wrongful act is not erroneous which omits the word “experience.”</p>

<p>1. Delivery—when acceptance of, will be presumed. Held, under the facts of this case, that acceptance of delivery of a lease will be inferred.</p> <p>2. Landlord and tenant—what instrument constitutes lease. The words “agree to let” mean exactly the same as the word “let,” and unless there is something in the instrument in which they are employed to show that a present demise is not in contemplation, such instrument will be construed as a lease.</p> <p>3. Landlord and tenant—power of executor with respect to lease. The executor of a lessee has no authority to surrender a term and take another lease in his own name; where after the death of the lessee the executor takes possession of the demised premises and pays the rent, he is deemed to have held such possession under the lease as executor de son tort. Payments of rent made by him imply no new letting.</p>

<p>Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

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

<p>Divorce—when right to temporary alimony sufficiently appears. In. an action for divorce, where the marriage is denied, temporary alimony should be awarded where the proof shows probable cause or .a fair probability that the allegation of marriage will be sustained.</p>

<p>Bill for accounting, etc. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Wikdes, Judge, presiding.</p>

<p>1. Fellow-servants—how question of existence of relation of, determined. Whether the plaintiff at the time of his injury was so co-operating or consociating with other servants of the defendant, his master, is a question of fact and not of law.</p> <p>2. Fellow-servants—when relation of, does not exist. Held, under the evidence of this case, that the jury were warranted in finding that the plaintiff while engaged in preparing cores, moulds, etc., was not a fellow-servant of other employes of the defendant.</p>

<p>Bill for injunction, etc. Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbentano, Judge, presiding.</p>

<p>1. Personal injuries—what essential to recover for. In order to recover in an action for personal injuries, it is essential not only that proof be made of actionable negligence, but also the plaintiff must establish that he was at the time of the accident in the exercise of ordinary care for his own safety.</p> <p>2. Contributory negligence—when established. Held, that it was contributory negligence for the plaintiff, knowing of the existence upon the deck of a ship of a hatchway, to walk (vision being obscured) over such deck without knowing whether the hatchway was open or closed.</p>

<p>Bill for injunction, etc. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal frofn the Circuit Court of Cook county; the Hon. Charles M. Walked, Judge, presiding.

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

<p>Assumpsit. Appeal from the County Court of Cook county; the Hon. William C. De Wolf, Judge, presiding.</p>

<p>Dismissal—what essential to allowance of motion to set aside. In order to entitle a party to an order setting aside a dismissal of his appeal from a justice of the peace, it must not only appear that he possessed a meritorious defense to the action, but also that such dismissal was not the result of his own negligence.</p>

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

<p>Trial of right of property. Appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding.</p>

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

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy, Judge, presiding.</p>

<p>•1. Trial—when action of court in advancing time of, will not he reversed. It is within the discretionary power of the trial court to advance or refuse to advance the hearing of a cause, and the action of the court with respect to such matter will not be reversed, unless an abuse of the discretionary power is shown. Likewise, the action of the court in advancing the hearing of a cause will not be reviewed where the hill of exceptions does not affirmatively show that the cause was actually tried out of its regular calendar order.</p> <p>2. Judicial notice—of what not taken. The Appellate Court will not take judicial notice of the rules of the Circuit Court.</p> <p>3. ' Notice—what sufficient service of. A notice to a non-resident attorney, who appears of record as the attorney in charge of the cause, unassociated with local counsel, is sufficient if made by means of the employment of the registered mail service of the United States.</p>

<p>1. Contracts—when recovery upon implied contract cannot be had. No recovery can be predicated upon an implied contract if an express contract appears to have existed between the parties with respect to the subject-matter of the litigation.</p> <p>2. Contracts'—when employment contract terminable at will. A contract of employment made for an indefinite period is terminable at the will of either party.</p> <p>3. Contracts—when discharge not illegal. No recovery can be had upon the ground of a breach of a contract of service by a discharge from service where the contract is indefinite with respect to the period of its duration, inasmuch as such a contract is terminable at the will of either party thereto.</p> <p>4. Instructions—must not assume facts in dispute. An instruction is erroneous which assumes the existence of facts in dispute between the parties to the litigation.</p> <p>5. Verdict—when not sustained by a preponderance of the evidence. A preponderance of the evidence does not exist in favor of the plaintiff, where it appears that the verdict rests upon his own sworn statement denied in every respect by the sworn statement of the defendant, both parties being uncorroborated, and both being of equal credibility.</p>

<p>1. Fellow-servants—when doctrine of, does not apply,. The fellow-servant doctrine has no application where the charges of negligence are with respect to the non-delegable duties of the master.</p> <p>2. Pleading—when declaration sufficiently charges that the incompetency of the defendant's servants caused the plaintiff’s injury. Held, that the declaration set forth in this opinion sufficiently charged that the incompeteney of the defendant’s servants caused the plaintiff’s injury.</p> <p>3. Pleading'—when declaration sufficiently charges that the failure of the defendant to furnish a safe place to work was the cause of the plaintiff’s injury. Held, that the declaration set forth in this opinion sufficiently charged that the'failure of the master to furnish a safe place to work was the cause of the plaintiff’s injuries.</p> <p>4. Master and servant—duty of former to latter. It is the duty of the master to exercise reasonable care to provide for his servants a reasonably safe place in which to work, and this duty is a com tinuing one.</p> <p>5. Master and servant—duty of former to latter. It is the duty of the master to exercise reasonable care to employ competent servants, and such as are fit for the work they are intended to be employed in, and to discharge an incompetent or negligent servant, if he learns or has reason to believe that he is incompetent or negligent.</p> <p>6. Verdict—how may not he impeached. A verdict of a jury may not be impeached by the affidavits of the individual jurors who •rendered the same, nor by the affidavits of others setting forth the hearsay statements of any of such jurors.</p>

<p>1. Statute of Limitations—when amended declaration sets up new cause of action. An amended declaration sets up a new cause of action where it pleads specially a policy of insurance, the original declaration consisting merely of the consolidated common counts.</p> <p>2. Supreme Court—effect of decisions of, with respect to Appellate Courts. The Appellate Courts are conclusively hound hy the decisions of the Supreme Court of the state.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George A. Dbpuy, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Axel Ciiytratjs, Judge, presiding.</p>

<p>1. Bankruptcy—appropriate judgment upon sustaining plea of discharge. A plea of discharge in bankruptcy is a plea in bar, and generally, if sustained by the proof, entitles the defendant to a judgment nil capiat.</p> <p>2. Bankruptcy—Hill v. Harding, 116 III. 93, distinguished from the present case. It is only in exceptional cases that a judgment against the defendant, after a discharge in bankruptcy, should be entered with a perpetual stay of execution. The present case, which was a trial de novo before the Circuit Court, on. an appeal from a justice of the peace rendered less than four months before the defendant filed his petition in bankruptcy, is not such a case.</p> <p>3. Suretyship—when surety upon bond released by principal’s discharge in bankruptcy. Semble: That a surety upon a bond given upon an appeal from the judgment of a justice of the peace is not liable on the bond where the petition in bankruptcy has been filed within four months after the judgment by the justice and the trial de novo resulted in a judgment for the defendant on the ground of a discharge on said petition. The question, however, is not involved in this appeal.</p>

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

<p>1. Garnishment&emdash;what cannot be reached by. Stock in a corporation, where the certificate has issued, cannot he reached hy garnishment.</p> <p>2. Corporations&emdash;what cannot affect stock purchase. The purchase of corporate stock in good faith consummated through an agent of the supposed and record owner is not affected by the fact that such agent upon learning of an adverse claim of ownership retained the proceeds of the check given in payment for such stock.</p>

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

<p>Action in case for death caused by alleged wrongful act. Appeal from'the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding.'</p>

<p>Bill for specific performance, etc. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.</p>

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Theodore BRentano, Judge, presiding.</p>

<p>1. Jurisdiction—what waives right to object to. Jurisdiction to reinstate a cause after dismissal is waived where it appears that the defendant, after the reinstatement, entered into a stipulation providing for the passing of the cause, went to trial, examined and cross-examined witnesses, introduced testimony, argued the case, etc.</p> <p>2. Evidence—when admission of, erroneous, in action for personal injuries. Testimony descriptive of a plug is not competent, and its admission is ground for reversal where it does not appear that the plug described was the one claimed as the cause of the injury in suit.</p>

<p>1. Contracts—what not legal rescission. Part of a shipment of merchandise cannot he accepted and the balance rejected, nor is a legal rescission effected by the acceptance and use of a part of such shipment, followed by a purchase upon the market of like merchandise, as that used, and a return thereof, together with the unused balance of the shipment sought to be rejected.</p> <p>2. Burden of proof—where merchandise is claimed as under contract grade. Where there is evidence tending to show the sale and delivery of merchandise and its acceptance by the vendee, the burden of showing that such merchandise was not such as was called for by the contract rests upon such vendee.</p>

<p>1. Declaration—when charges negligence generally. A declaration charges negligence generally where it avers that the “defendant then and there, by its servants, agents and employes, so carelessly, recklessly, wilfully, negligently,” drove and managed its car that “by and. through the negligence * * * of the defendant, through its said servants,” the plaintiff was injured.</p> <p>2. Negligence—when doctrine res ipsa loquitur applies. The doctrine of res ipsa loquitur applies as between a passenger and carrier where there is evidence tending to show that the cause of the injury complained of was the negligent operation of the carrier’s car.</p> <p>3. Verdict—when not excessive. A verdict for $1,500 is not excessive where there is evidence tending to show that as a result of the accident in question, the plaintiff suffered from a fracture of some of his ribs, that some of the bones of his feet were broken, and that his ankle and the calf of his leg were bruised and swollen, etc.</p>

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

<p>1. Negligence—when condition of sidewalk is question for jury. Held, that it was a question for the jury to determine, whether the city was guilty of negligence where it appeared that from the top of the cement sidewalk in question to the dirt and stone helow, at the south end of it and directly in line with the sidewalk, and in the public street, there was a perpendicular descent or drop of approximately two feet.</p> <p>2. Evidence—what incompetent upon examination of medical expert. It is not competent upon the examination of a medical expert to inquire of him with respect to the meaning of terms applicable to an injury of a kind not shown to have been sustained.</p> <p>3. Instbuction—upon preponderance of evidence approved. An instruction upon this subject as follows is approved: “If the jury find from the evidence that the plaintiff has made out her case by a preponderance of the evidence, as alleged in the declaration, then the jury should find the defendant guilty.”</p>

<p>1. Pleading—when informality of plea waived. The conclusion of a plea, though informal, is not material, on review, where the demurrer sustained thereto was general and did not go to the form.</p> <p>2. Insubance—effect of incontestable clause. An incontestable clause in a policy of insurance does not preclude the defense of suicide where the suicide clause in the policy is a part of the contract to pay, providing how much shall be due and payable, in the event of death by self-destruction.</p>

<p>1. Husband and wife—when latter not competent as witness for former. Unless a wife has acted as the agent of her husband, she is not a competent witness in litigation to which he is a party.</p> <p>2. Rescission—when must be made. If a machine purchased and delivered under a contract does not conform to contract requirements, rescission by the vendee must be made within a reasonable time after receipt of the machine.</p> <p>3. Remedies—where machine delivered is not in accordance with contract. Where a machine is delivered under a contract the remedies of the vendee are (1) rescission within a reasonable time, (2) an action for damages for breach of contract, and (3) recoupment of damages for breach of contract in an action for the purchase price.</p> <p>4. Contract—what not competent to vary terms of. It is not competent to vary the terms of a written contract by a showing of contemporaneous agreements and representations.</p> <p>5. Verdict—when trial court without power to amend. The trial court has no power after the lapse of the term at which a verdict is returned to amend the same by adding thereto material words.</p> <p>6. Instructions—what must not submit to jury. An instruction should not submit to the jury the determination of questions of mixed law and fact.</p>

<p>1. Abstract—when not in compliance with rule. An abstract does not comply with the rules of court which merely mentions the fact that objections and exceptions were interposed to a master’s report, but fails to set forth what such objections or exceptions were or what disposition was made thereof.</p> <p>2. Book account—when not competent. Entries contained in a memorandum book are not competent where it does not appear that the book was kept or used in any regular course of business or that the entries were made in chronological order or that such entries were contemporaneous with the items entered.</p>

<p>Exceptions—what not sufficient by way of. Recitals of the clerk contained in the common law record of the fact that exceptions were taken are not sufficient. The bill of exceptions containing such exceptions is essential.</p>

<p>1. Jurisdiction—when court of law without. A court of law is without jurisdiction to reform or correct a written instrument.</p> <p>2. Contbacts—how enforced in courts of la/w. In a court of law the parties will be held bound by their written contract, the words of which will be taken in their ordinary acceptation, and what the words mean will be held to be conclusive of the intention of the parties.</p>

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

<p>1. Master and servant—what does not establish due care of former. The due care of a master is not necessarily established by a showing that the methods employed by him were the “usual, «ordinary and customary means employed” in performing the kind of work in question.</p> <p>2. Instructions—need not repeat. It is not error to refuse a correct instruction if the contents thereof are substantially contained in another instruction given.</p>

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

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

<p>1. Amendments and jeofails—effect of dismissal of all defendants. The dismissal of all of the original defendants joined in an action of tort, leaving therein only those defendants who had been joined after the commencement of the action, does not entitle the remaining defendant to the dismissal of the action.</p> <p>2. Vebdict—when not disturbed as against the evidence. In this case there is not such a clear preponderance of evidence on either side as makes it our duty to set aside the decision of the jury on it.</p> <p>3. Vebdict—when not excessive. A verdict for $5,000 rendered in an action for personal injuries is not excessive where it appears that the plaintiff was permanently and seriously injured.</p> <p>4. Argument of counsel—how far law may be stated. It is proper for counsel to state to the jury what he believes the law to be. It is not proper for counsel to state absolutely what the law is.</p>