Volume 139 — Illinois Appellate Court Reports

<p>Vendor and vendee—when latter liable for full purchase price. Held, that the vendee in this case, having accepted the merchandise in question from the vendor, was liable for the full purchase price thereof to such vendor, notwithstanding the vendee may actually have paid something upon account of the same merchandise to another party from whom he had supposed the delivery to have proceeded.</p>

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

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Coolt County; the Hon. Ben. M. Smith, Judge, presiding.</p>

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

<p>1. Chancery practice—where “unknown owners” are made parties. Where “unknown owners” are made parties defendant, and they are non-resident or their addresses are unknown, two affidavits are imperatively required—the first affidavit for the purpose of procuring issue of process, and the second affidavit to authorize the clerk of the court to cause notice by publication to such defendants to be made, as directed by other statutory provisions. Substantial compliance with these provisions of the statutes is essential to clothe the court with jurisdiction to proceed to adjudicate the rights of such persons and cannot be dispensed with.</p> <p>2. Decrees—when recitals do not aid defects in service. Recitals in a decree of due service do not aid defects of service appearing from the manner of service specifically shown by the record—the attack being direct, not collateral.</p> <p>3. Decree—how far binding upon party. A decree will bind a party with respect to all his interests, personal or representative, regardless of the manner in which he was named or served as a party.</p> <p>4. Foreclosure—who necessary parties to. All persons interested in the subject-matter of the trust deed as note owners or claiming title or interest in the land conveyed, are not only necessary but are indispensable parties to a foreclosure proceeding, and they will not he bound by the decree, or cut off from the right of redemption, if such they possess, unless brought within the jurisdiction of the court, so that the decree may operate upon and determine any rights which they may possess.</p> <p>5. Fobeclosube—who not necessary parties to. Beneficiaries who have no rights or claims separate or distinct from those which are represented by a trustee, and who have no independent rights of redemption, are neither necessary nor proper parties to a foreclosure proceeding in which such trustee is a party.</p> <p>6. Fobeclosube—duty of trustee as party to. It is the duty of the trustee named in a trust deed sought to be foreclosed to see to it that every reasonable and available means are exerted to protect the rights of the note owners in accordance with the conditions of the instrument under which he acts.</p> <p>7. Usury—when note representing compounded interest, .not tainted with. Where there are no countervailing equities or conduct smacking of fraud, a note which represents a voluntary settlement, arrived at through a computation of interest upon the compound method, will not be held tainted with usury.</p> <p>8. Variance—rule with respect to, in chancery. In chancery, as well as at law, the proofs and allegations must correspond, and a material variance between the averments of the bill and the essential findings of the decree will result in reversal.</p>

<p>1. Decebe—how far subject to review in the absence of objections and exceptions to the master’s report upon which it is predicated. Where no exceptions or objections have been interposed to a master’s report upon which a decree is predicated, all questions of law raised which do not find warrant or support in the facts found are, nevertheless, subject to review.</p> <p>2. Extension of time of payment—what does not establish valid agreement for. While payment of interest in advance is a sufficient consideration to support an agreement of extension, yet, in the absence of any evidence to support the agreement, it is neither prima facie proof nor presumptive evidence of such agreement where the anticipated period consisted of one-half holiday and two days which were dies non juridicus.</p> <p>3. Extension of time of payment—when agreement authorizing not revoked by death. An agreement contemporaneous with the contract of suretyship, by which a surety authorizes renewals from time to time, is a power coupled with an interest which the death of the surety does not terminate.</p> <p>4. Principal and surety—burden of proving release. The burden of proving the release of the surety primarily rests upon such surety.</p> <p>5. Foreclosure—when rents accruing during the period of redemption properly applied in extinguishment of deficiency decree. Where the trustee pledges as well the rents as the land, it is proper for a court of chancery to appoint a receiver to collect the rents accrued from the property foreclosed and to order their application in ex-tinguishment or in reduction of the deficiency decree ancillary to the sale.</p> <p>6. Res ad judicata—when Hen of trust deed is. Where the rights and interests of all the parties in the land were made the subject of a partition proceeding, and in that proceeding the status of a trust deed was determined, the validity of such trust deed and the efficacy of its lien cannot subsequently be questioned by those who were parties to such partition proceeding in a proceeding to foreclose such trust deed.</p>

<p>Petition for a writ of prohibition.</p>

<p>1. Personal injuries—who not mere licensee. A person using a highway which the owner, tor a great number of years, has permitted the public to use as a public highway, is not a mere licensee to which the owner of such highway owes no other duty than to refrain from purposely or wilfully injuring him.</p> <p>2. Railroads—when owner of tracks liable for negligence of lessee company. The owner of tracks is liable for the negligence of a railroad company whom it has permitted to use such tracks.</p> <p>3. Ordinance—validity of, requiring ringing of bell. An ordinance is valid which requires the ringing of a bell within the limits of a city.</p> <p>4. Contributory negligence—when person driving upon railroad tracks guilty of. Held, that the plaintiff in driving upon the railroad tracks in question in this case, under the circumstances shown by the evidence, and with his knowledge of the tracks and of the fact that a train was liable to come on one of such tracks from either direction at any time, was guilty of such contributory negliligence as barred his right to recover for the injury sustained.</p>

<p>1. Dower—when gross sum may he awarded in lieu of. Held, doubtful whether a gross sum may be allowed in lieu of dower without the consent of all parties in interest.</p> <p>2. Dower—how right to assignment of, will he enforced. The right to have dower assigned can only be enforced in a court of equity in a proceeding to which all parties in interest are parties.</p>

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

<p>Appeals and errors—what essential to jurisdiction of appeal taken from justice of peace. The transcript of the justice is essential to the jurisdiction of the Circuit Court to hear and determine an appeal taken from such justice.</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. Writ of error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Negligence—when question of, for jury. Whether it is negligence for a traction car to turn a curve at a rapid rate of speed is a question of fact for the jury.</p> <p>2. Contributory negligence—when question of fact for jury. Whether it is contributory negligence for one, pursuant to custom, to ride upon the platform of a traction car, is a question of fact to be determined by the jury.</p>

<p>Action in case. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.</p>

<p>1. Record—what part of, without incorporation in hill of exceptions. An appearance becomes a part of the record proper by the mere act of filing it.</p> <p>2. Default—appropriate form of, where defendant fails to plead. Where the defendant has entered an appearance, but has failed to plead,, the proper form of judgment is by nil dicit and not by default.</p> <p>3. Assessment of damages—when defendant entitled to notice of. A defendant, having entered his appearance, is entitled to notice of the proceeding to assess damages, and it is reversible error to proceed to assess damages without notice to him.</p>

<p>Prosecution for obtaining money under false pretenses. Writ of error to the Municipal Court of Chicago; the Hon. Fred L. Fake, Jr., Judge, presiding.</p>

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

<p>1. Lease—of mine construed. A lease upon, mining property held to require the payment of royalties upon “screenings” upon the ground that the same was coal of a merchantable quality within the designation of the descriptive words “pea, nut, lump and egg coal” contained in the lease.</p> <p>2. Contract—what proper to aid construction of ambiguous. In order to aid in the interpretation of an ambiguous contract, it is proper for the court to consider the interpretation which the parties have by their conduct placed thereon.</p>

<p>Consignor and consignee—what prima facie proof of delivery. Prima facie proof of delivery by a consignor to a consignee is established by proof of delivery to a carrier for transportation, the property being marked for delivery to the consignee.</p>

<p>1. Conspiracy—when indictment sufficiently charges. An indictment sufficiently charges a conspiracy which in substance avers that the defendants, intending and designing to cheat and defraud a specified company of a large amount of money, funds and property, conspired together falsely to pretend that a large number of copies of a specified paper then before sold and delivered by said company to one of said defendants for distribution and sale had been accounted and paid for by said defendant, and to make false entries on the books of said company to the effect that certain amounts of money had been paid by said defendant in the regular course of business of said company, by which false pretenses and false entries said conspirators intended to cheat and defraud said company “of a large number of its said publication, to-wit, 340,000 copies of the value of one-half cent each.”</p> <p>2. Conspiracy—what instruction in prosecution for, improper. An instruction in a prosecution for conspiracy is improper which tells the jurors that if the. evidence leaves a reasonable doubt in. their minds as to the guilt of either of the defendants, they should find such defendant not guilty, the law being that if one defendant is not guilty of the conspiracy charged, neither can be held guilty. Reid, however, in this case that the giving of this instruction was not harmful error.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.</p>

<p>1. Local improvements—when special assessment vouchers may he paid from general funds. Special assessment vouchers may be sued upon and recovery had thereon out of the general funds of a city where it appears that deficiency in the special assessment funds applicable to the payment of such- vouchers was caused by reason of an unlawful diversion and misapplication by the city of such funds from the purpose for which they were collected. Held, that a premature payment of rebates is such an unlawful diversion which entitled recovery from such general funds.</p> <p>2. Local improvements—when payment of special assessment vouchers may not he made from instalments of assessment other than that against which it is issued. If the assessment was confirmed prior to the enactment of section 86 of the Local Improvement Act, payment of a special assessment voucher out of any instalment other than that against which it was issued is improper.</p> <p>3. Local improvements—when city deemed to have collected amount of assessment. Where a city pursuant to statute has become the purchaser of land assessed and returned as delinquent, it is deemed, for the purpose of payment of special assessment vouchers, to have collected the amount recited in the certificate of purchase issued to it.</p> <p>4. Local improvements—when city liable for interest upon spedal assessment vouchers. A city is liable for interest upon special assessment vouchers where payment thereof has been illegally withheld.</p>

<p>Practice—when dismissal proper for want of prosecution. Notwithstanding the defendant has not been served and the time for filing the declaration under the statute has not elapsed, a dismissal for want of prosecution may be justified. Held, under the facts of this case, that the dismissal ordered was justified.</p>

<p>1. Assumed bisk—when doctrine of, applies. The doctrine of assumed risk is applicable and precludes a recovery where it appears that the servant was injured through an agency which was one of the obvious dangers of his employment, the risk of which he knew and appreciated from practical experience.</p> <p>2. Assumed bisk—what does not preclude operation of doctrine of. The operation of the doctrine of assumed risk to preclude a recovery is not affected by the fact that- the servant is ordered to do a particular work, where the order does not include a direction to do such work in a particular manner, the servant being left to his discretion as to the manner of doing the work; - if he adopts one of several methods, one of which is safe and the other dangerous, and by pursuing the unsafe method adopted by him he is injured, he cannot recover.</p> <p>3. Contributoby negligence—when appears as matter of law. A servant is guilty of contributory negligence which will preclude a recovery from an injury resulting to him where without direction from his master he undertakes to perform work in a manner known by him to be perilous.</p>

<p>Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.</p>

<p>Assault and battery. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blaiie, Judge, presiding.</p>

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

<p>Foreclosure. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>1. Negligence—considerations which enter into determination of question of, as one of fact, where child of tender years is injured while attempting to cross street car tracks. Where a child of tender years is injured by a motor car while attempting to cross street car tracks, very strong elements essential to the solution of the question of negligence are, the position and the distance of the car from the child when he first started to cross the track, the attention or lack of attention of the motorman in control of the car at that time, whether or not the motorman saw the child as soon as he might in the exercise of due care or applied as he should the mechanism of the car in an attempt to arrest its progress and bring it to a stop before striking the Child, whether, in fact, he used sand on the rails, and if he did use sand, did he do so in apt time, in the exercise of due diligence.</p> <p>2. Negligence—what does not relieve from charge of, where a child of tender years is injured while attempting to cross a street car track. Whether or not a gong on a motor car is sounded at the time of an accident is immaterial in a case of a child of tender years injured or killed while attempting to cross a street car track.</p> <p>3. Damages—how amount of, determined in death case, where the plaintiffs intestate was a child of tender years. The determination of the amount of damages to be awarded in an action for death caused by wrongful act is left to the determination of the jury, and where the plaintiff’s intestate is a child of tender years with the infinite possibilities of life and opportunity before him, the discretion exercised by the jury is liberally considered on review.</p> <p>4. Arguments oe counsel—what ground for reversal. Arguments of counsel which seek to inflame the passions and prejudices of a jury by references to matters of common knowledge which are outside of the issue, are ground for reversal where harm may fairly be inferred to have resulted.</p> <p>5. Arguments oe counsel—what ground for reversal. Remarks of counsel, upon the question of damages, as follows, held improper, and to constitute ground for reversal.</p> <p>“When it ccmes to a question of damages, Mr. Duncan touches upon those and says that if you should find for the plaintiff in the case, you should limit the damages. * * * The law fixes a limit. It allows the recovery of ten thousand dollars in a case where death of one is wrongfully and negligently caused by another.”</p> <p>6. Pbactce—when impropriety in permitting jury to talce eliminated counts upon retirement not subject to review. It is not error per se to allow the jury to take with them upon their retirement the declaration in the cause, although the better practice is not to permit them so to do. It is error, however, to permit the jury so to take with them eliminated counts, but such error is not subject to review in the absence of the question being raised in the trial court at the time of the delivery of such eliminated counts to the jury.</p> <p>7. Instructions—when refusal to eliminate count error. It is error to refuse by instruction to eliminate a count of a declaration from the consideration of the jury where there is no evidence tending to support the averments of such count.</p> <p>8. Instructions—must not tender false issues. An instruction is erroneous which submits a false issue to the consideration of the jury.</p> <p>9. Instructions—effect of refusing abstract proposition of law. It is not error to refuse an instruction which contains only an abstract proposition of law, even though such abstract proposition of law is correctly stated.</p> <p>10. Instructions—measure of damages improperly stated. An instruction given in this case, as follows, held erroneous:</p> <p>“The court instructs the jury that the law provides that whenever the death of a person shall be caused by the wrongful act, neglect or default of any person, company or corporation who or which would have been liable if death had not ensued, to the party injured, the administrator or executor of such deceased person may bring a suit against the person, company or corporation whose negligence was the cause of death for the benefit of the next of kin of such deceased person. And the law also provides that in such suit or action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injury resulting from such death to the next of kin of such deceased person, not exceeding the sum of $10,000.”</p> <p>11. Pleading—when averment in declaration that plaintiffs intestate left next of Join sufficient. While in actions for death caused by alleged wrongful act it is usual to aver in all the counts of the declaration that the plaintiff’s intestate left next of kin, yet it is not necessary so to do. It is sufficient if such averment appears in one count of the declaration.</p> <p>12. Evidence—when rules of traction company competent. Held, that it was not error to admit in evidence the rules of the traction company defendant governing motormen.</p> <p>13. Evidence—what competent with respect to arrest of motorman at the time of accident. Held, that it was not error to admit proof of the arrest of the motorman at the time of the accident, but that it was error to refuse to permit evidence to be given as to the cause and reason of such arrest, where such evidence tended to remove the impression which might have been left in the minds of the jury that there was something culpable in the conduct of the motorman at the time of the accident which brought it about.</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>Separate maintenance. Appeal from the Superior Court of Cook County; the Hon. Willard M. McBwen, 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>Action in case for personal injuries. Appeal from the Superior Court of Cook County; the lion. Robert W. Wright, Judge, presiding.</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>1. Practice—effect of omission in jurat. The omission to insert in the jurat the date on which the affidavit attached to a bill for injunction was sworn to, is not material; the presumption will be indulged that the oath was administered upon the day the bill was filed.</p> <p>2. Injunction—what essential to issuance of, without notice. In order to justify the issuance of an injunction without notice, either the bill or an accompanying affidavit must set forth facts which would tend to show that undue prejudice would result to the complainant if the injunction were not issued without notice; conclusions upon undisclosed facts will not satisfy the statutory requirements in this respect.</p> <p>3. Injunction—when lies to restrain collection of judgment. Held, that the bill of complaint in this case set forth sufficient facts showing that the judgment in question was obtained by fraud to entitle a court of equity to restrain its collection by injunction issued without notice.</p> <p>4. Injunction—when bond given upon issxiance of, insufficient. A bond given upon the issuance of an injunction restraining the collection of a judgment is insufficient which does not comply with the statute which provides that such a bond shall he “in double the amount of such judgment,” etc.</p>

<p>1. Contracts—how to he construed. A contract must, if possible, be so construed as to effectuate the intention of the parties and to sustain the contract; also, if one possible construction would-render the contract illegal and another possible construction would make it legal, the latter construction will be adopted.</p> <p>2. Contracts—when party not deemed to have contracted with himself. A party to a contract will not be deemed to have undertaken to perform the impossible feat of contracting with himself, but a construction will be given, if consistent with the contract as an entirety, which will make the undertaking or clause in question an agreement by such party with the other signers of the contract.</p> <p>3. Contracts—when want of mutuality does not appear. Held, that the contract in question in this case was not void for want of mutuality.</p> <p>4. Contracts—when party cannot question validity. A party cannot at one and the same time assert rights under a contract and urge that the same is void.</p> <p>5. Contracts—effect of clause limiting time for bringing suit. A clause of a contract which provides that an action with respect to a portion of the subject-matter thereof shall be commenced within a time specified, and that the commencement of such action within such specified time is a condition precedent to its maintenance, is valid and enforceable.</p> <p>6. Amendments and jeofails—when error to deny leave to amend Mil of complaint. Held, that under the showing made in this case it was error to deny leave to amend the .bill of complaint filed therein.</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>1. Evidence—competency of coroner’s verdict. A coroner’s verdict is competent as a whole if it contains statements beyond the province of such a jury. The party objecting thereto should ask instructions of the court safeguarding his rights to the extent of any portions which were outside of the province of such verdict.</p> <p>2. Contbibutoby negligence—what does not constitute, in use of sidewalk. It is not contributory negligence, as a matter of law, to run upon a sidewalk.</p> <p>3. Instructions—what error will not reverse. An instruction in a sidewalk injury suit which is improper in containing a clause as follows: "And if such condition existed that the city of Chicago, by its officers, knew of such condition,” is not ground for reversal, where the question of constructive notice is sufficiently and properly covered by other instructions given.</p>

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

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

<p>1. Principal and agent—hoio far latter may hind former. The principal is bound by the acts of his agent within the apparent authority which the principal knowingly permits the agent to assume or which he holds the agent out to the public as possessing.</p> <p>2. "Vendor and vendee—construction of contract as to election of rights. A contract for the purchase and sale of real estate which contained as well a forfeiture clause as a clause giving to the vendor in case of default in payment by the vendee an option by election to treat the covenants and liability of the. vendee as living, obligatory and enforceable and to collect all the consideration money from the vendee by proper proceedings at law or equity, is considered, but the court does not finally pass upon the question as to whether or not under the contract involved the right to a forfeiture is lost by an apparent election to keep the contract alive.</p> <p>3. Forfeiture—when notice of intention to enforce, essential. A forfeiture cannot be enforced under a contract providing therefor in event of default without notice of intention to enforce a forfeiture where the party seeking to forfeit the same has by his conduct induced the other party thereto to believe that the provision that time whs of the essence of the contract would not be insisted upon.</p> <p>4. Contract—when right to rescission arises. A vendee may rescind where the vendor without warrant and right has sought to enforce a forfeiture and has placed himself in a position where he cannot perform.</p> <p>5. Contract—when purchase money may he recovered tipon rescission. A vendee of real estate may recover payments made under a contract to purchase where the vendor has illegally sought to enforce a forfeiture by making to a third party a conveyance of the property covered by the contract of purchase.</p> <p>6. Measure of damages—in action to recover money paid under rescinded contract. Where a vendee is entitled to rescind, and has rescinded, he may recover as his measure of damages any money paid under the contract in question plus interest from the time of the commission of the act which entitled rescission.</p>

<p>Contract—release construed. A release passing between attorney and client set forth in this opinion is made the subject of construction and is held, among other things, to contain no express or implied agreement for future employment.</p>

<p>1. Injunction—what essential to valid form of. An injunction should be as definite, clear and precise in terms as is possible, in order that there may be no excuse or reason for misunderstanding or disobeying it.</p> <p>2. Injunction—when lies to restrain nuisance. Equity will interfere to restrain the continuance of a nuisance before a jury has found that a nuisance exists where the evidence clearly discloses both the nuisance and the injury and the continuity thereof.</p> <p>3. Injunction—when does not lie to restrain maintenance of obstruction in public street. Held, under the evidence in this case, that an injunction should not be granted at the suit of an individual property owner showing no special damage in excess of that sustained by the public at large and showing no physical disturbance of his property rights, to restrain the obstruction of a public street.</p> <p>4. Nuisance—what constitutes. A stable may become a legal nuisance which should be enjoined, where so conducted that the odors are likely to result in injury to the health of persons occupying adjoining property and where the noise accompanying its conduct is such as to disturb the peace, comfort and sleep of those living in the neighborhood, even when the stable may have been the first building in time of construction and operation. Priority in location is not always controlling.</p>

<p>1. Life insurance—when “due diligence" clause not violated. Held, under the evidence in this case, that it was for the jury to determine whether the insured at the time of his death was “in the exercise of due diligence” for his self-protection, and that there appeared no reason for interfering with the jury’s verdict on that question.</p> <p>2. Life insurance—effect of “due diligence” clause. The following excerpt applied by a Massachusetts court to a clause similar to that involved in this case, is quoted with approval:</p> <p>“The phrase is very general and certainly it does not mean that the assured must guarantee himself against accidents; nor do we think it means that he shall not recover for any accident to which some want of care on his part may have contributed. He is not required to use all possible diligence, but only all due diligence. The due diligence or care is sometimes said to be the ordinary care of prudent persons. It is not a precise term, but a relative one. In an accident policy it would not be reasonable to hold that this clause requires of the assured a higher degree of diligence than prudent persons are accustomed habitually to use. Under such a construction few persons would care to have an accident policy. The due diligence required is not inconsistent with inadvertence nor with running such risks as prudent and cautious persons habitually run, and upon the evidence the act of the deceased was not necessarily to be deemed a violation of this provision.”</p> <p>3. Life insurance—test as to whether “due diligence” clause has been observed. Whether the insured has observed the “due diligence” clause of an accident life insurance policy is to be determined from a consideration of all the circumstances, surroundings and obvious conditions which go to show that he must in the exercise of ordinary prudence have appreciated or on the other hand might reasonably not have appreciated the danger which confronted him at the time of the accident which resulted in his death.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. George A. Carpenter, Judge,' presiding.</p>

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

<p>X. Appeals and errors—when master in chancery becomes party. If after a cause has been dismissed a master in chancery, upon his own petition, obtains an order requiring the payment to him of certain fees earned in the proceeding, he becomes a party to the cause to the extent of such order, and an appeal lies therefrom and is properly entitled with the master named as appellee.</p> <p>2. Master in chancery—when order of dismissal does not affect fees of. An order of dismissal “without costs” does not affect the master’s rights to his fees, even though such order is consented to by the defendants.</p> <p>3. Jurisdiction—when order of dismissal cannot be set aside. An order of dismissal cannot be set aside after the lapse of the term where no misrepresentations were made or deception practiced which resulted in the entry of the order.</p>

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

<p>1. Verdict—when not disturbed as against the evidence. To justify the Appellate Court in reversing on the ground that the evidence is insufficient, it must appear that the finding of the jury is not sustained by the evidence or that it is palpably contrary to the decided weight of the evidence.</p> <p>2. Evidence—when improper exclusion of, will not reverse. The improper exclusion of evidence upon the question of damages will not reverse where the merits of the controversy have been decided adversely to the party making the complaint.</p> <p>3. Assault and battery—when instruction in action for, improper. An instruction upon the subject of self-defense, in an action for assault and battery, is improper which tells the jury that the defendant “had a right to repel force by force and in so doing to use such force as the defendant then believed was reasonably necessary under the existing circumstances.” Such instruction should have told the jury that the defendant’s belief must have been such as a reasonable person would have entertained under the circumstances.</p> <p>4. Instructions—when cannot he complained of. A party cannot complain of an instruction given at the instance of his adversary where the vice in question is one common to the instructions given at his own instance.</p>

<p>1. Contempt—when witness not guilty of, for failure to obey subpmna. No witness can lawfully be punished for failure to obey a subpoena requiring his attendance upon court unless his witness fees have been paid or tendered to him or unless he has waived the same.</p> <p>2. Fees—what not waiver by witness. After a witness has failed to appear in response to a subpoena he does not waive his right to fees by failing to assign as his reason for not appearing a failure to pay or tender him his fees, where his failure to state such a reason is with respect to a person to whom he is under no obligation to state the facts.</p>

<p>Assumpsit. Error to the Circuit Court of Henderson County; the Hon. Robert J. Grier, Judge, presiding.</p>

<p>Bill to contest will. Error to the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. False imprisonment—when burden of proving illegality of, upon plaintiff. As a general proposition of law, it is only necessary for the plaintiff in actions for false imprisonment to show that he has been restrained of his liberty. The presumption then arises that his restraint was unlawful and the burden of proving a justification, if any exists, is upon the defendant. But when the plaintiff goes further than this and shows that such imprisonment was caused by a complaint before a magistrate, the issuing of a warrant upon such complaint, and a trial and examination under it, the burden of proof is upon the plaintiff to show that the proceedings were invalid or irregular, the presumption of law being in favor of the regularity of judicial proceedings even in courts of limited jurisdiction.</p> <p>2. False imprisonment—when justice of peace not liable in civil action for. A justice of the peace is not liable in a civil action for false imprisonment where it appears that he had jurisdiction as well over the offense charged as of the person of the plaintiff.</p>

<p>Assumpsit. Appeal from the Circuit Court of McHenry County; the Hon. Chables H. Donnelly, Judge, presiding.</p>

<p>Forcible detainer. Appeal from the City Court of Aurora; the Hon. E. M. Mangan, Judge, presiding.</p>

<p>1. Propositions of law—what not presentation of. It is not a presentation of propositions of law, within the meaning of the statute, to offer in evidence the hill of exceptions showing the propositions of law which were passed upon at a previous hearing of the cause.</p> <p>2. Propositions of Law—when statute with regard to, has no application. The statute providing for the presentation of propositions of law applies only to those cases where the parties are entitled to a trial by jury and waive such right.</p> <p>3. Res judicata—when former judgment is. The judgment of the Appellate Court in one appeal of a cause is res judicata in a subsequent appeal of all questions decided upon the first appeal.</p>

<p>Action commenced before justice of the ‘ peace. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

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

<p>1. Vendor and vendee—when latter cannot recover purchase price. A vendee cannot recover any sum paid upon the purchase of land upon the ground that the agreement was to convey a clear title when as a matter of fact the land in question was encumbered, unless it appears that such vendee was entitled to a conveyance prior to the full payment of the purchase price.</p> <p>2. Evidence—when witness not permitted to testify after refreshing recollection. It is true that a witness may refresh his recollection from any memorandum made toy him or made under his direction, tout before he can toe heard to testify he must toe able to say that after examining the memorandum he does remember that he had a personal knowledge of the subject.</p> <p>3. Evidence—when printed statutes not competent. Held, that printed statutes purporting to show the laws of a sister State are not competent where they do not purport to have been published by authority, notwithstanding the same are accompanied by a certificate signed by the attorney-general and secretary of state of the State in question, in which such officers certify that they had examined and compared the book in question and were satisfied that it contained all the laws of a general nature in force at the time of the certificate.</p>

<p>1. Administration act—section 6S construed. Section S of the Probate Court Act adopts section 68 of the Administration Act except where there is language in the Probate Court Act distinctly contrary thereto; and appeals thereunder may he taken in the same manner as appeals are taken from a justice of the peace to the Circuit Court, except that the bond must he approved by the Probate Court and cannot he filed in the Circuit Court, but must be filed in the Probate Court.</p> <p>2. Appeals and errors—when appeal from Probate Court properly perfected. An appeal perfected by filing and having approved a bond within twenty days after the date of the judgment entered by the Probate Court is properly perfected notwithstanding the order for the appeal was not taken at the term at which the judgment was entered.</p>

<p>Petition for probate of will. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas B. Worthington, Judge, presiding.</p>

<p>1. Assumpsit—when does not He. Assumpsit does not lie in the absence of an express or implied promise.</p> <p>2. Assumpsit—what does not toaive question of impropriety of action. No estoppel to urge that the action of assumpsit was the inappropriate remedy arises by virtue of procuring the court to give instructions submitting questions of fact to the jury, after the court has ruled upon the propriety of the action.</p> <p>3. Landlord and tenant—when former cannot recover of purchaser of crop. In the absence of a promise upon the part of a purchaser to pay the rent out of the proceeds of the crop purchased, a landlord has no cause of action against such purchaser unless the landlord has perfected a lien by distress or unless some act of fraud has been perpetrated by such purchaser which impaired or destroyed the landlord’s security for the rent.</p> <p>4. Evidence—what does not cure error in admitting erroneous. The exclusion of erroneous evidence after it has been admitted and heard by the jury does not necessarily cure the error in the admission; especially is this true where the excluded evidence was improperly commented upon in argument to the jury.</p> <p>5. Arguments op counsel—what improper. It is improper for an attorney to comment upon evidence which has been excluded by the court.</p> <p>6. Attorney and client—propriety of former becoming witness. It is professionally improper for counsel in a cause to testify therein. If counsel becomes a witness the proper course is for him to withdraw from the cause as attorney.</p>

<p>1. Statute of limitations—when 20-year provision begins to run against landlord. The 20-year provision of the statute commences to run in favor of a tenant and against the landlord where the former refuses to attorn or to pay for the premises in question.</p> <p>2. Statute of limitations—what evidence competent to establish bar of 20-year provision. Held, that certain deeds, a mortgage, a release and certain oral testimony were competent to show the running of the 20-year provision of the statute in favor of a tenant against a landlord.</p>

<p>1. -Justices and constables act—section B construed. The praying of an appeal on the day of judgment within the meaning of this statute is not made by entering into an arrangement with the justice that in the event of an adverse verdict and judgment an appeal shall be entered.</p> <p>2. Appeals and errors—what not equivalent to prayer for appeal. An arrangement with a justice of the peace by which a prayer for an appeal is to be entered in the event of an adverse judgment, does not satisfy the statute and is not a legal praying of an appeal where no entry of appeal is made.</p> <p>3. Justice of the peace—when loses jurisdiction. After a justice of the peace has written up his judgment and signed it his jurisdiction over the case is ended and he has no power or authority to open and amend it, neither has the Circuit Court authority to compel a justice to amend his docket nor any right to permit him so to do.</p>

<p>Master and servant—limitations of rule requiring former to furnish safe place to work. It is a general rule that a master must exercise reasonable care to furnish, a reasonably safe place for his servant to work, but that rule is subject to limitations and exceptions. One exception universally recognized is that the general rule does not apply where the conditions are changing from time to time in the prosecution of the work.</p>

<p>Foreclosure. Error to the Circuit Court of Lake County; the Hon. Charles H. Doxnelly, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Iroquois County; the Hon. Frank L. Hooper, 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 weight of the evidence where such evidence is conflicting and there was no decisive preponderance either way.</p> <p>2. Instructions—presumption as to consideration by jury. The court will presume that the jury gave equal consideration to each instruction given and even though one instruction standing alone would be misleading, a reversal will not follow if all the instructions considered together are correct in law and free from conflict.</p>

<p>1. Judicial notice—of what not taken. Judicial notice will not be taken of matters not of common knowledge.</p> <p>2. Negotiable instrument—tohen defense of failure of consideration not established. Held, that the evidence in this case was incomplete and insufficient to establish the defense of a failure of consideration.</p> <p>3. Decree—what not personal against administrator. A decree providing that an administrator, defendant in a foreclosure proceeding, pay a specified amount within a designated time and that in default the mortgaged premises he sold, is not personal hut merely directory as to the manner in which a sale may he avoided.</p> <p>4. Deficiency decree—proceeding essential to render, against estate. Held, in this case, that if there was a deficiency after sale upon foreclosure the court upon application for a deficiency decree should hear proofs and determine whether the state of the case was such as to entitle the complainant to a deficiency decree against the general estate of the deceased.</p>

<p>1. Evidence—when competency of boohs cannot bo questioned. Held, that by virtue of a stipulation entered into in this case upon a previous hearing thereof the competency of books of account was not open to question.</p> <p>2. Appeals and erbors—when action of court not subject to complaint. Error advantageous to the party complaining cannot be made the subject of complaint on review.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of De Kalb County; the Hon. Linus C. Ruth, Judge, presiding.</p>

<p>Administration of estates—who not entitled to grant of letters. A creditor of a deceased widow is not entitled to obtain administration upon the estate of the deceased husband of such widow.</p>

<p>Bill to contest will. Appeal from the Circuit Court of Jo Daviess County; the Hon. Oscae E. Heabd, Judge, presiding.</p>

<p>1. Equity practice—when dismissal of hill of complaint improper. A bill in equity may be dismissed upon the call of the docket for want of prosecution, but there is no authority for a dismissal thereof for want of equity after answer filed without a hearing upon the merits.</p> <p>2. Injunction—when damages upon dissolution should not he awarded. Damages upon dissolution of an injunction should not be awarded in favor of those who have been convicted of fraud or were adjudged to have been in privity therewith in a former proceeding for injunction involving the same subject-matter.</p>

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

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

<p>Bill of interpleader. Appeal from the Circuit Court of Lake County; the Hon. R W. Wright, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of La Salle County; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding.</p>

<p>Mandamus. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>Assumpsit. Error to the Circuit Court of Livingston County; the Hon. Thomas M. Harris, Judge, presiding.</p>

<p>Judgment by confession. Appeal from the Circuit Court of Wood-■ford County; the Hon. George W. Patton, Judge, presiding.</p>

<p>Criminal prosecution under section 16 of Dram-shop Act. Error to the County Court of Mercer County; the Hon. R. C. Rice, Judge, presiding.</p>

<p>Foreclosure. Error to the Circuit Court of Will County; the Hon. Dorrance Dibbell, Judge, presiding.</p>

<p>Foreclosure. Error to the Circuit Court of Marshall County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>Jurisdiction—when question of territorial, cannot he raised. The question of territorial jurisdiction cannot he collaterally raised in a prosecution for the illegal sale of malt liquors within the de facto limits of a city contrary to the ordinances thereof. So held, in this case, in which it was admitted that the city in question had assumed to exercise territorial jurisdiction with respect to the place where the sale was made.</p>

<p>Contributory negligence—when established. Held, that the plaintiff in this case, who was injured by being struck by an automobile while riding in a buggy, was- guilty of contributory negligence in driving upon the wrong side of the road in violation of the statute, knowng at the time that she was about to meet the automobile in question which was coming in the opposite direction.</p>

<p>1. Municipal corporations—right of officials to compensation. If a person is appointed or elected to a public office for which no salary or compensation is fixed by law, any services rendered are gratuitous and no recovery can he had therefor.</p> <p>2. Municipal corporations—what essential to recovery of compensation hy official. In order that an official of a city or village may recover compensation for his services, he must first allege and prove a valid appointment.</p> <p>3. Constitutional law—when ordinance in violation of section 21 of article 6. Held, that the ordinance in question in this case providing for the appointment of a village constable, was void as in violation of section 21 of article 6 of the constitution of 1870.</p> <p>4. Pleading—when action of court in carrying hack demurrer proper. The rule that when a demurrer to a pleading has been interposed and overruled-and the party interposing the demurrer does not elect to abide hy his demurrer to such pleading, hut confesses that the pleading is a good pleading, then he cannot afterward if a demurrer is filed to a subsequent pleading have it carried back and sustained to the pleading to which a demurrer has been previously overruled, is subject to the exception that the court may in its discretion permit the pleading filed to be withdrawn and then may carry hack the demurrer.</p> <p>5. Pleading—when plea of res judicata insufficient. A plea of former adjudication is insufficient where it only answers a portion of a count.</p> <p>6. Pleading—when plea of estoppel informal. A plea of estoppel is informal when it does not conclude that the defendant will rely upon the adjudication set up as an estoppel.</p> <p>7. Practice—effect where issues are incomplete. Notwithstanding the issues are incomplete in that no plea was filed to the common counts, the issue will he treated as complete where the parties to the cause have so treated it.</p>

<p>Assumpsit. Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>Bill in chancery. Appéal from the Circuit Court of Peoria County; the Hon. L. D. Puterbaugh, Judge, presiding.</p>

<p>Action in case for personal. injuries. Appeal from the Circuit Court of Kane County; the Hon. Linus C. Ruth, Judge, presiding.</p>

<p>1. Verdict—when not disturbed. A verdict will not be set aside on review if it compensates the plaintiff for the actual damages shown by the evidence merely in order that he may have another opportunity to seek the allowance of exemplary damages.</p> <p>2. Practice—when motion to suppress depositions comes too late. A motion to suppress depositions comes too late when first made during the trial if the objections were such as could be cured by the retaking of the depositions.</p> <p>3. Evidence—when self-serving statements become competent. Where one party introduces evidence as to a particular conversation, the entire conversation becomes competent even though it may contain self-serving declarations otherwise incompetent.</p> <p>4. Appeals and errors—what question waived on review. Questions not pointed out in the written motion for a new trial specifying grounds therefor, are deemed to have been waived and will not be considered on review.</p>

<p>Objections to administrator’s report. Appeal from the Circuit Court of Livingston County; the Hon. Thomas M. Harris, Judge, presiding.</p>

<p>1. Statute of Limitations—when declaration does not state new cause of action. In an action for death caused by alleged wrongful act, an amended declaration does not state a new cause of action where it adds the name of a next of kin not contained in the original declaration, which, however, averred that the deceased left next of kin.</p> <p>2. Franchise—when does not require equipment of cars with fenders. A franchise ordinance in part set forth in this opinion is construed and held not to require a traction company to equip its cars with fenders.</p> <p>3. Instructions—upon negligence in failing to use fenders approved. An instruction is approved which told the jury in substance, that if they believed from the evidence that it was negligence for the defendant to run its cars without fenders or lifeguards and that a child was killed because of such negligence and that the parents and custodians of such child were not guilty of negligence in permitting it to be in the street at the time it was killed and that the child left surviving next of kin, as alleged, then the jury should find the defendant guilty.</p> <p>4. Instructions—when upon exercise of care by parents misleading. An instruction is misleading which gives the jury to understand that the parents of the child which has been killed could ignore the street car company in permitting such child, which was less than two years of age, to play upon the streets.</p> <p>5. Arguments of counsel—when ground for reversal. An argument which is an appeal to sympathy, passion and prejudice is ground for reversal.</p> <p>6. Arguments of counsel—power of court to control. It is not only within the power of the court to control the arguments of counsel and keep them within due bounds, but it is the duty of the court so to do.</p>

<p>Foreclosure. Appeal from the Circuit Court of Rock Island County; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of Rock Island County; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Jo Daviess County; the Hon. Oscar E. Heard, Judge, presiding.</p>

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

<p>1. Appeals and errors—when propriety of appeal not considered. In this case the action was in assumpsit, against several defendants, one of whom was in default; that no judgment was taken against such defendant in default and the jury passed only on the issues between the plaintiff and the defendant appearing. This irregularity in proceeding was not called to the attention of the Appellate Court, and it is held that the parties having tried the cause as if it had been severed by first entering judgment against the defendant in default, the propriety of the appeal will be ignored on review.</p> <p>2. Practice—right of cross-examination upon assessment of damages. A defendant in default has the right to cross-examine witnesses on the question of the amount of the damages but has no right to cross-examine with respect to matters which go to the merits of the action.</p> <p>3. Practice—effect of failure to complete issue. Where the parties go to trial without formally joining issue, the irregularity is cured by verdict.</p> <p>4. Negotiable instruments—when not error to exclude proof as to protest fees. Protest fees can only be recovered where the suit on the note is sustained and it is not error to have excluded evidence thereof where the note in question was held void.</p> <p>5. Contracts—what not competent to establish invalidity as in violation of gambling statutes. It is not competent to show transactions in grain are in violation of the gambling acts by showing the intention of one of the parties thereto. In order to establish the invalidity of a transaction with respect to grain, it must appear that there is a mutual intention on the part of the buyer and seller that the grain is not to be received or delivered.</p> <p>6. Contracts—when void as against gambling statutes. Held, that the evidence in this case clearly showed that transactions in grain in question were in violation of the gambling acts and that the note in suit given in connection with such transaction was void.</p> <p>7. Evidence—what competent to show validity of note. A letter written by the maker of a note in suit claimed to be void as in violation of the gambling acts, which states that such notes are “all right,” is competent. Held, in this case, that the exclusion of such letter was harmless error.</p>

<p>Wills—when debts payable from particular fund. If from the whole will, either by express language or from necessary implication, it appears that a particular portion of the estate is to be the primary fund for the payment of debts, the remainder of the estate will be exonerated from that burden.</p>

<p>1. Mandamus—what petition for, must show. A petition for mandamus must show upon its face a clear right to the relief demanded and that it is the legal duty of the party sought to be coerced to do the thing he is called upon to do. It must set forth all the material facts relied upon so that the same may be traversed or admitted. It must negative any facts which might defeat the right to the writ.</p> <p>2. Mandamus—when demurrer should he carried hack to petition. If there is a defect in a petition for mandamus, such that the judgment should be arrested, a demurrer to a subsequent pleading should be carried back to the petition.</p> <p>3. Mandamus—when petition for, defective. A petition for mandamus to compel the borrowing of money to build a school house by issuing bonds and to erect a school house upon a new school site, is defective in failing to allege that the district is not indebted to the full extent of the constitutional limit or that it has no money on hand available for building such school house; also in failing to allege that the voters of the district have voted upon the amount of the bonds, etc.</p> <p>4. Schools—what preliminary to issuance of bonds to erect school house. Since the statute of 1889 it is necessary as a preliminary to the right to borrow money and issue bonds to erect a school house that the voters of the district vote upon the proposition as to the amount of the bonds to be issued, the time of payment thereof, etc.</p>

<p>Insurance—act of June 22, 1893, entitled “an act to incorporate companies to do business of life or accident insurance on the assessment plan,” construed. A policy issued by a company organized under the act of June 22, 1893, entitled “An act to incorporate companies to do the business of life or accident insurance on the assessment plan,” may be made payable to the estate of the insured and may be transferred by the insured by a will to a beneficiary having an insurable interest in the life of the insured.</p>

<p>1. Master and servant—when doctrine of assumed risfo applies. A servant cannot recover for injuries occurring to him from risks known to him or of which knowledge is imputable to him.</p> <p>2. Master and servant—when former owes no duty to latter. A master owes no duty to a servant to protect him from hazards encountered in the usual and ordinary method of doing the work at which he is employed, where such hazards are as well known and are as apparent to the servant as to the master.</p>

<p>1. Municipal Court—when finding of, not disturbed. The finding of the Municipal Court will not he set aside on review unless it is against the greater weight of the evidence.</p> <p>2. Family expense—what is within meaning of statute. The wages of a domestic servant is a family expense for which both husband and wife are liable.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.</p>

<p>Official bonds—when surety of constable not liable. A surety upon the official bond of a constable is not liable for the failure of such constable to turn over money unless it appears that such constable received the money in question in his official capacity. Held, that the evidence in this case did not show that the constable had so received such money.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.</p>

<p>This case is controlled by the decision in West Side Hospital of Chicago v. Eiger, ante, p. 645.</p>

<p>Action for damages to personal property. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantby, Judge, presiding.</p>

<p>1. Negligence—when collision result of. Held, that the collision, in question in this case which occurred at a railroad crossing between a traction car and a steam engine, was the result of the negligence of the traction company, that such company was bound to so run its cars at such crossings as to avoid collisions, and to take notice of the conditions of its tracks and exercise care accordingly.</p> <p>2. Evidence—what testimony of medical expert competent. A physician who is a nerve specialist may properly be permitted to testify that his patient showed great “nervousness—tremors and quivering of her body,” or apparently involuntary wincings and cries.</p>

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

<p>This case is controlled by the decisions in Patterson v. Northern Trust Co., 132 Ill. App., 63 and 208; affirmed by the Supreme Court in 230 Ill., 334, and 231 Ill., 22.</p>