Volume 141 — Illinois Appellate Court Reports

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>1. Negligence—when motorman approaching street intersection guilty of. It is negligence for a motorman to drive his car'at a rapid rate of speed when within twenty-five feet of a busy street intersection.</p> <p>2. Negligence—when motorman approaching street intersection guilty of. It is negligence for a motorman to drive his car when approaching a busy street intersection without ringing his bell.</p> <p>3. Verdict—when not disturbed as against the evidence. A verdict will not be set aside as against the weight of the evidence unless manifestly so.</p> <p>4. Instructions—effect of refusal of proper, in Municipal Court. The refusal of a correct instruction in a trial had in the Municipal Court is not ground for reversal if the jury were orally instructed fairly and fully with respect to the case.</p> <p>5. Instructions—phrase need not he defined. The phrase “preponderance of the evidence” is significant and self-explanatory and need not be specially defined by instructions.</p> <p>6. Degree of cabe—required at street intersections. It is incumbent upon those in control of a street car to exercise a greater degree of care and watchfulness at street intersections than at other places along its route.</p>

<p>1. Landlord and tenant—construction of lease providing for furnishing of power. A lease by which a landlord agrees to furnish certain horse power for the running of a number of specified machines, includes only such machines as are specified, and the provision with respect thereto has no application to other machines subsequently installed, even though some of the original machines may have been at all times inactive.</p> <p>2. Verdict—when alight evidence will sustain. Evidence with respect to a fact peculiarly within the knowledge of the defendant, if slight, may sustain a verdict where such defendant has interposed no evidence with respect to such fact.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Mancha Bbuqgembyer, Judge, presiding.</p>

<p>Bill in chancery. Error to the Superior Court of Cook county; the Hon. Geokqe A. Duput, Judge, presiding.</p>

<p>Trover. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.</p>

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

<p>Contracts—what performance of obligation to furnish merchantable title. A contract to convey “a good and merchantable title” to real estate is performed by the conveyance of a title free from legal objection other than an objection with respect to the chain of title failing to show that certain grantors were the heirs of a deceased owner, such objection however being met by satisfactory proof by affidavit and an incidental judicial finding of the fact of heirship.</p>

<p>Action in case. Appeal from the Circuit Court of Cook county; • the Hon. Charles M. Walkeb, Judge, presiding.</p>

<p>1. Conspiracy—when indictment for, insufficient. An indictment for conspiracy, charging that the defendants “unlawfully and feloniously did conspire, combine, confederate and agree together with each other and divers other persons, whose names are to the jurors unknown, to do a certain illegal act, to-wit: to then and there unlawfully obtain the signature of one Louis Perlman to a written instrument, with the intent to cheat and defraud the said Louis Perlman by means of false pretenses, such obtaining of a signature by false pretenses then and there being an act by law prohibited. Contrary to the form of the statute and against the peace and dignity of the same People of the State of Illinois,” is insufficient either at common law or under the statute.</p> <p>2. Conspiracy—what not punishable. The charge of a combination to secure the signature of a person to a written instrument, although the further allegation is made that the securing of the signature is to be with the intent of cheating and defrauding that person by means of false pretenses, is not the charge of a punishable conspiracy either under the Illinois statute or at common law.</p> <p>3. Conspiracy—what not evidence of participation in. Failure to speak in denial of accusations when the right of silence exists is not evidence which tends to establish participation in a conspiracy charged.</p>

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

<p>1. Fbanchises—ordinances as to stopping of trains construed. Held, that the several ordinances in question in this case, construed together, did not impose upon the respondent company any obligation to make regular stops at the points named in the petition for mandamus.</p> <p>2. Mandamus—who cannot maintain, to obtain construction of franchise ordinance. A private citizen without legal, property or personal interest cannot maintain mandamus to settle some doubtful question arising upon the face of a franchise ordinance. People v. Suburban R. R. Co., 178 Ill. 508, explained.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.</p>

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

<p>1. Instructions—what question of law presented hy motion for peremptory instruction. The motion of a defendant to direct a verdict of not guilty presents to the trial court the question of whether, taking as true the testimony most favorable to the plaintiff and drawing therefrom the inferences most favorable to him that could properly be drawn, the jury could properly find a verdict in favor of the plaintiff.</p> <p>2. Instructions—when question of propriety of giving peremptory, saved for review. By taking an exception to the giving of a peremptory instruction and taking a bill of exceptions containing all of the evidence, saves for review the question of the propriety of such instruction under the evidence in the case.</p> <p>3. Trespassers—duty of railroad company towards. A railroad company owes to a trespasser on its tracks and right of way no duty except to refrain from wantonly or wilfully injuring him. The fact that many other persons have been in the habit of traveling on the right of way of such company and no measures had been taken to prevent it, does not operate to change the relative rights of such a trespasser and the company.</p>

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

<p>1. Parties—who may maintain bill to enforce stock, liability. The assignee of a judgment against a corporation may maintain in his own name a bill to enforce stock liability.</p> <p>2. Corporations—what not payment for corporate stock. Held, under the evidence in this case, that a stock subscription was not fully paid by the transfer of patent rights.</p> <p>3. Corporations-—who liable for unpaid stock subscription. An assignee of corporate stock, the subscription for which has not been paid in full, is liable for the unpaid subscription where he takes the stock with notice of the facts.</p> <p>4. Corporations—power of directors to release liability for stock subscriptions. It is beyond the power of the directors of a corporation to release a stockholder from his liability for an unpaid stock subscription, at least so far as existing creditors are concerned.</p> <p>5. Corporations—when directors disqualified. Directors are disqualified from voting with respect to matters in which they have a personal interest or with respect to a matter concerning the personal interest of another director who controls their votes.</p>

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

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.

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

<p>Separate maintenance. Appeal from the Circuit Court of Cook county; the Hon. Lookwood Honobe, Judge, presiding.</p>

<p>1. Appeals and erbobs—right of complainant to complain of decree entered in his favor. Notwithstanding a decree may in some respects he satisfactory to a complaining party, if final and otherwise appealable, it may be made the subject of review at his instance if objection was made to it at the time of entry.</p> <p>2. Appeals and erbobs—when decree not final. A decree which sets aside an appraisement and enjoins the defendant from attempting to enforce it “until the further order or decree of this court” and which expressly reserves for future consideration “the matter of determining the fair and reasonable rental value of lot thirty-one for said ten years,” is not final and appealable.</p>

<p>1. Employer and employe—test of determining existence of relation of. The real tests of determining the existence of the relation of employer and employe are, to whose orders was the employe subject and where did the power to discharge repose.</p> <p>2. Respondeat superior—when doctrine of applies; when not. The responsibility of a master for the tortious act of his servant arises, grows out of, is measured by and begins and ends with his control over them. The negligent or wilful misconduct of the servant must not only be shown, but equally so that the act was within the scope of employment, before liability of the master is established.</p> <p>3. Agency—who not authorized to malee arrest upon behalf of principal. Doing general detective work does not impart authority to arrest persons charged or suspected of committing criminal acts or to assault them.</p>

<p>Assumpsit. Error to the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>Delivery—when presumptions wilt aid. Where a voluntary settlement of property rights is made between husband and wife upon the eve of a contemplated desertion, the delivery of a deed of property included in such settlement will be deemed absolute.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.

<p>Action of debt. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>Partnership—what does not establish relation of. A joint interest in a special project, limited in character as well as time, does not constitute a partnership.</p>

<p>1. Animals—what essential to recover for injuries inflicted by alleged vicious. Before a plaintiff can recover for injuries inflicted by an alleged vicious animal, it is incumbent upon him to establish by his proofs that the owner of such animal knew that the animal in question wh^Wfcioiis and had^a tendency to bite mankind.</p> <p>2. Animals—what precludes recovery for injuries inflicted 6y alleged vicious. Injuries inflicted by an alleged vicious animal cannot Re made the basis of a recovery where it appears that the plaintiff had wantonly irritated and aggravated such animal and that such irritation and aggravation was calculated to have brought about the act which resulted in the injuries.</p> <p>3. Verdict—when set aside as_ against the evidence. A verdict which rests upon the testimony of a single witness will not be sustained on review where the testimony of such witness is flatly contradicted by several other equally credible witnesses and by the facts and circumstances appearing at the trial.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Max Ebebhardt, Judge, presiding.</p>

<p>1. Landlord and tenant—when new tenancy does not arise. Where leasing is made from month to month, a re-letting is not deemed to take place at the recurring of each month.</p> <p>2. Landlord and tenant—upon whom, obligation to make repairs rests. The obligation to keep premises in repair rests upon the tenant rather than upon the landlord.</p> <p>3. Personal injuries—when landlord not liable for. A landlord is not liable for personal injuries suffered by the child of a tenant where he (the landlord) is under no obligation to keep the premises in repair, nor would such liability exist if, after the letting, the landlord makes and breaks a promise to repair, as such a promise would be a mere nudum pactum.</p>

<p>1. Verdict—when presumption arises that evidence sustains. The presumption is that a verdict is sustained by the evidence where all the evidence which was heard and considered by the jury is not presented to the Appellate Court, as in this case, a model which was before the jury and used by the attorneys for both parties and which is essential to the full understanding of questions and answers.</p> <p>2. Instructions—when errors in, will not reverse on appeal from judgment in Municipal Court. Errors in instructions will not reverse a judgment rendered by the Municipal Court unless the Appellate Court is “satisfied” that such judgment “is contrary to the law and the evidence.”</p>

<p>Tboveb—measure for damages in action of. The proper measure of damages in an action of trover is the current market value of the property alleged to have been converted, at the time of the conversion, with interest from that time until the time of the trial.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.</p>

<p>1. Decree—when rule that, must he supported hy specific findings or evidence does not apply. A consent decree need not be supported by specific findings of fact or by evidence preserved by a certificate of evidence.</p> <p>2. Children—consideration determining custody of. When the question involved is the custody of an infant, the prime consideration, and that which takes precedence of all other considerations, is the welfare of the infant. When a guardian has been appointed and circumstances have so changed since the appointment as to make it to the infant’s interest that a different guardian be appointed, a court of chancery has ample power to make the change and will not hesitate to remove the former guardian and appoint another.</p> <p>3. Children—who natural guardian. The father is the natural guardian of his infant child and his right to its custody is prima facie before that of all others.</p> <p>4. Appeals and errors—effect of appeal upon decree appointing guardian and awarding custody of child. The sole effect of an appeal appointing a guardian and awarding the custody of a child is to suspend its operation pending the determination of the appeal.</p> <p>5. Jurisdiction—when court without power with respect to appointment of guardian and awarding of custody of child. Where a decree has been entered appointing a guardian and awarding the custody of the child and has been appealed from and the appeal perfected, the court which rendered such decree is without jurisdiction to enforce the provisions of a former decree which is changed by the provisions of the decree appealed from.</p> <p>6. Contempt—when punishment for, erroneous. Where a writ is issued ordering that a party be brought into court to show cause, if any he has, why he should not be committed for contempt, it is error to refuse to permit him to answer and show cause, if any he has.</p>

<p>This case is controlled by the decision in Steele v. Hohenadel, ante, p. 201.</p>

<p>1. Mandamus—when peremptory writ not awarded against mayor. A peremptory writ of manfiamus will not be awarded, at the instance of a private citizen, to compel the mayor of a city to enforce Sunday closing saloon laws..</p> <p>2. Mandamus—what admitted by pleadings. Jn mandamus the rule is exactly the reverse of that which prevails in equity, and everything not explicitly denied is admitted.</p> <p>3. Mandamus—propriety of motion to strike immaterial matter. A motion to strike irrelevant matter from a petition for mandamus is the appropriate method of testing the materiality and pertinency of allegations, but such a motion is not a substitute for a demurrer and is not intended or adapted to test the substantial rights of the parties.</p> <p>4. Mandamus—when lies against executive municipal officer. Mandamus lies to compel an executive municipal officer to perform his ministerial duties, but a peremptory writ will not be awarded where it would interfere with the exercise by him of his discretionary powers, nor will it be awarded “to control and regulate the general course of official conduct.”</p>

<p>1. Brokers and factors—right of property in stock purchase. Upon the purchase of stock through a broker, the full purchase price not being advanced by the purchaser, the stock becomes the property of the purchaser subject to a pledge thereof to the broker for the balance of such purchase price.</p> <p>2. Sai.es—within what time repudiation of unauthorized, must he made. As a rule, a reasonable time for consideration is allowed before the obligation to repudiate an unauthorized sale arises; but, under some circumstances, such as those which existed in this case, an immediate repudiation is required.</p> <p>3. Measure of damages—in action for unauthorized sale. The measure of damages for the unauthorized sale of stock by a broker is the difference between the amount obtained and the amount which the owner could have gone into the market' and replaced his converted stock for, within a reasonable time after obtaining knowledge of the sale.</p>

<p>Attachment. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.</p>

<p>Contkacts—when amount paid for tuition, etc., of dismissed student cannot be recovered. The amount paid for the tuition, etc., of a student in a military academy, cannot be recovered by the party paying the same in the event of a dismissal for alleged insubordination, unless it appear that the dismissal was the result of an action so unreasonable and oppressive as to warrant the conclusion that the same was malicious, unfair or prompted by some improper motive or by some motive other than a due enforcement of the regulations of the institution.</p>

<p>Master and servant—what risks are assumed. Dangers which are, obvious and apparent are assumed by the servant.</p>

<p>Certiorari. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.</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>Bill to remove cloud, etc. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.</p>

<p>Instructions—when erroneous in ignoring defense of assumed risTc. An instruction as follows, with respect to the preponderance of the evidence, is erroneous in ignoring the defense of assumed risk.</p> <p>“While the burden is on the plaintiff to prove his case by a preponderance of the evidence, still if the jury find that the evidence bearing upon the plaintiff’s case preponderates in his favor, although but slightly, that would be sufficient to warrant the jury in finding in his favor. If you find from the evidence that the plaintiff has proved his case as laid in the first count of his declaration by a preponderance of the evidence, then you should find the issues for the plaintiff.”</p>

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

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

<p>1. Fbatebnal benefit societies—what interest in certificate enforceable in equity. A benefit certificate issued to one who may be lawfully named as beneficiary will be enforced in equity in favor of such beneficiary notwithstanding an attempted change by the members, if it appears that such beneficiary has made a loan to such member upon the faith of such certificate.</p> <p>2. Fbatebnal benefit societies—when change of beneficiary effected. Held, under the evidence in this case, that a change of beneficiaries had been duly effected, notwithstanding the old certificate was not surrendered as provided by the by-laws, it appearing that such old certificate had been lost or misplaced and a written request for a new certificate made.</p> <p>3. Evidence—what testimony of wife incompetent. A wife is not permitted to testify to conversations between herself and her husband where the interests of a third party are involved.</p>

<p>1. Fraternal benefit societies—effect of assignment of certificate. A fraternal benefit certificate is not assignable at law, but all beneficial interests therein may be enforced in equity, except insofar as the statute operates to prevent assignment.</p> <p>2. Fraternal benefit societies—when assignment of certificate will not he enforced in equity. The assignment of a benefit certificate to one not a lawful beneficiary under the statute, will not be enforced in equity where the question of the unlawfulness of the beneficiary is set up by the society, and this notwithstanding the acceptance of dues and assessments from such unlawful beneficiary.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of La Salle county; the Hon. Edsar Eldredse, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding.</p>

<p>Parent and child—rule with respect to right to custody. The mere fact that other relatives or persons might give better care, and spend more time and money upon the child, is no reason for depriving the father of its custody. It is not a question of relative ability, but the sole question is, is the father able and will he give the child good care and treatment, and the court is only warranted in depriving a father of the custody of his child when the evidence discloses that the child, on his account, is destitute, abandoned or dependent, or that he is living an immoral life or in vicious or disreputable surroundings, or that he neglects or treats the child unkindly or cruelly, or may do this, or is wanting in good principles, or is illy adapted to the care of the child on account of defects in his mental or physical qualities, which prevent him from being a kind and affectionate father.</p>

<p>Bill in equity. Appeal from the Circuit Court of De Kalb county; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Bldredge, Judge, presiding.</p>

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

<p>Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Henby B. Willis, 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. Definitions—“penalty.” While “penalty” may sometimes be used to mean punishment by personal confinement or suffering, yet it usually means the exaction by law of the payment of a sum of money as punishment.</p> <p>2. Ordinances—power of city council to enact ordinance fixing penalty for member of council absenting himself from meeting. Held, that a city council has power to pass an ordinance providing for a fine to be imposed upon a member who absents himself from any meeting of the council, and such a fine may be imposed pursuant to such an ordinance notwithstanding the member may not have been notified to attend the particular meeting in question; such an ordinance is valid and enforceable even though the attendance of the particular member was not required to make a quorum, as either a majority or a minority has power to compel the attendance of absentees.</p> <p>3. Ordinances—when proof of existence sufficient. A book published by authority of the city council which contains a particular ordinance is prima facie proof of the existence of such ordinance, and such ordinance is presumed to have continued in existence until the contrary is shown.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Bureau county; the Hon. Richard M. Skinner, Judge, presiding.</p>

<p>Garnishment. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>1. Slander and libel—how words to be taken. Words brought into question in an action for slander or libel are to be taken in the sense which persons of common and reasonable understanding would ascribe to them; that is, in their ordinary or common acceptation.</p> <p>2. Slander and libel—what words actionable per se. The word “filch” is actionable per se.</p> <p>3. Slander and libel—sufficiency of indictment charging criminal libel. Held, that the indictment in this case, which charged a criminal libel in the use, among other things, of the word “filch,” was sufficient to sustain the conviction.</p> <p>4. Criminal libel—what not defense to prosecution for. Held, that the defendant in this case did not show that the publication made was the truth; also that he did not show that the publication in question was made with good motives, and that, therefore, he was not entitled to the benefit of section 179 of the Criminal Code, which is as follows»:</p> <p>“In all prosecutions for libel, the truth, when published with good motives, and for justifiable ends, shall be a sufficient defense.”</p> <p>5. Counties—power of county board to change allowances during term of county officer. Where the compensation to a county officer is fixed at one sum and the clerk hire and other expenses are fixed separately therefrom, in such case, while the compensation cannot be changed during the term, the county board has power to change the allowance for clerk hire and other expenses during the term.</p> <p>6. Counties—when expenditure by county officer becomes lawful. An expenditure made by a county officer, though unauthorized at the time it is made, becomes lawful if it is subsequently approved by the county board, and such county hoard has power to make such approval.</p>

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

<p>1. Innkeepers—care required of, for personal safety of guests. A proprietor of a hotel, in which a passenger elevator is operated for the convenience of his guests, is held to the same care and diligence for the safety of his guests in the elevator, as a railway is required to use for the safety of its passengers.</p> <p>2. Contributory negligenoe—when elevator passenger not guilty of. A guest of a hotel, riding in an elevator therein, cannot he held guilty of negligence when he assumes an attitude while so riding which the construction of the elevator invites.</p> <p>3. Instructions—when not erroneous in permitting jury to consider “loss of time, if any." An instruction in an action for personal injuries which permits the jury to consider as an element of damage “loss of time, if any,” is not erroneous if based even upon slight evidence tending to show that the plaintiff suffered loss of time as a result of the injury complained of.</p> <p>4. Verdicts—when not disturbed as excessive. The Appellate Court will not set aside a verdict as excessive if the same opportunities enjoyed by the trial court in determining the propriety of such verdict are not afforded to it, as, for instance, the exhibition of the injured member, in an action for personal injuries.</p>

<p>1. Corporations—what law governs stockholders’ liability. The liability of a stockholder is governed by the law of the domicile of the corporation.</p> <p>2. Corporations—when stockholders’ liability discharged. Under the law of Kansas, a stockholder, with respect to his statutory liability, stands in the relation of a surety, and is discharged with respect to such liability as to a demand from which the corporation is relieved by virtue of the Statute of Limitations.</p> <p>3. Comity—how statutes of sister state construed. Where the statutes of a sister state are a part of the contract involved in the litigation, the construction which will be given by the courts of this state to such statutes is the construction which has been given thereto by the Supreme Court of such sister state.</p> <p>4. Evidence—how laws of sister state established. The law of a sister state is a question of fact, to be proved the same as any other fact by the introduction of evidence, and the construction of such law may be proved by the printed reports of adjudged cases.</p>

<p>1. Corporations—when liable for vindictive damages for wrongful act of agent. A corporation may be liable for vindictive damages for the wrongful act of its agent, perpetrated while ostensibly discharging duties within the scope of its corporate purposes.</p> <p>2. Practice—effect of written motion for new trial. Points not specified in a written motion for new trial, which sets out the specific grounds therefor, are waived and will not be considered on review.</p> <p>3. Instructions—must not give undue prominence to particular fact. An instruction is properly refused which is calculated to direct the attention of the jury to a particular circumstance and thereby give undue prominence to an inconclusive fact.</p> <p>4. Appeals and ebbors—when propriety of refusal of instruction will not he considered. Unless all the instructions given for the appellant are contained in the abstract, it will be presumed that the refused instructions were embodied in those given.</p>

<p>Action of debt. Appeal from the Circuit Court of Henderson county; the Hon. John A. Gbat, Judge, presiding.</p>

<p>Appeals and errors—when freehold involved. A freehold is involved where the issue is as to the existence or non-existence of the right perpetually to maintain a dam of a certain height upon the land of another.</p>

<p>Action on the case. Appeal from the Circuit Court of Cook county; the Hon. Richabd W. Clietobd, Judge, presiding.</p>

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

<p>1. Employee and employe—what not equivalent to a discharge. A request by the employer for the resignation of his employe is not equivalent to a discharge when not so treated by the parties.</p> <p>2. Employee and employe—what sickness of latter does not justify withholding of salary. Temporary sickness of an employe does not justify the withholding of his compensation where the contract of service provides that such employe shall “give his best services for the promotion and welfare of the business" of such employer.</p> <p>3. Employee and employe—when employe entitled to salary. An employe is entitled to his compensation during a period in which he does not report for duty where he has been told not to so report until notified—no notification to report having been given and his discharge not made.</p>

<p>Appeals and errors—when appeal from Municipal Court will he dismissed. An appeal from a judgment of the Municipal Court will be dismissed where a complete transcript of the record is not filed within forty days after the order of judgment or decree appealed from is entered, no extension of the time having been granted and the incompleteness of the record not consisting merely of inadvertent or clerical omissions.</p>

<p>Personal injuries—distinction between licensee and one who is upon premises by invitation. One on premises “not with a view of transacting any business with the owner is a mere licensee and the owner owes him no higher duty to protect him from injury than he would if he were a trespasser;” but, on the other hand, “the duty of the owner to one who comes there by the owner’s invitation to transact business in which the parties are mutually interested is to exercise reasonable care for his safety while upon that portion of the premises required for the purpose of his visit;” and “under such circumstances the party is said to be on the premises by implied invitation of the owner.” Pauckner ■ v. Wakem, 231 Ill. 276, followed.</p>

<p>Contributory negligence—when teamster seeking to cross street car tracks guilty of. One in charge of a heavy team who seeks to cross street car tracks is guilty of contributory negligence if he fails to look in both directions for approaching cars or if he has looked and seen an approaching car, attempts to cross in front thereof, driving slowly and under circumstances calculated to result in a collision.</p>

<p>Appeals and ebbobs—what orders not subject to review. An order which is entered by the Circuit or Superior Court in strict conformity to the mandate of the Supreme Court rendered in a cause, is not subject to review and an appeal therefrom will be dismissed.</p>

<p>1. Dram-shop Act—who may maintain action under section 9. A pauper sister, who under the Pauper Act has a legal right to the support of her brother, who is her only relative, is entitled to maintain an action under section 9 of the Dram-shop Act for loss of support through the habitual intoxication of such brother caused or contributed to by the defendant.</p> <p>2. Dram-shop Act—what evidence competent in action under section 9. The financial condition of the plaintiff and of the relative who was her means of support at the time of the commission of the wrongful act complained of, is competent to be shown in an action under section 9 of the Dram-shop Act.</p> <p>3. Dram-shop Act—against whom exemplary damages may he awarded. In an action under section 9 of the Dram-shop Act, exemplary damages may be awarded against the landlord who leases premises to the occupant with permission to sell intoxicating liquors thereon.</p> <p>4. Instructions—when cannot he complained of. Instructions containing a vice common to instructions asked and given on behalf of the complaining party are not subject to review.</p>

<p>Attachment. Error' to the Municipal Court of Chicago; the Hon. M. F. Girten, Judge, presiding.</p>

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

<p>Assumpsit. Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>1. Release—when set aside in equity. A release from liability for the wrongful conversion of bonds will be set aside in equity if without consideration.</p> <p>2. Release—what considered in equity in connection with hill to set aside. If the consideration for a release is inadequate, a court of equity, in determining whether it should be set aside, will consider threats made to induce the execution of such release, as well as the necessities of the party executing the same, the condition of the health of such party, and all other circumstances which tend to show a countervailing of the will of such party.</p>

<p>Action in debt. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.</p>

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

<p>Proceeding by information. Error to the Municipal Court of Chicago; the Hon. E. K. Walker, Judge, presiding.</p>

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

<p>Negotiable instruments—when verbal acceptance of bill of exchange not within Statute of Frauds. A verbal acceptance of a bill of exchange is valid and not within the Statute of Frauds even though the acceptor had no funds in his possession belonging to the drawer.</p>

<p>Action of debt. Error to the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>Evidence—when cross-examination unduly restricted. In a prosecution for the illegal sale of cocaine, it is error for the trial judge to restrict the defendants’ counsel in his cross-examination of a chemist who has testified to an analysis of the proprietary medicine alleged td have been sold and by so doing prevent him from showing the processes by which such chemist reached his conclusion.</p>

<p>1. Injunctions—when do not lie to restrain trespass. A court of equity has no jurisdiction to enjoin a trespass, even where repeated trespasses have been committed and their continuance is threatened, against a single complainant by a single defendant, unless the defendant is shown to be insolvent. (Various prior decisions being discussed and considered at length.)</p> <p>2. Appellate pbactice—effect given to dictum. A judicial dictum of the Supreme Court will not he disregarded hy the Appellate Court but will be treated with respect as a deliberate expression of opinion.</p>

<p>1. Insueance—when notice of cancellation insufficient. A notice by the company of a desire to cancel a fire insurance policy is insufficient to effect the object if not given to the insured or to some one authorized by the insured to receive such notice. An insurance broker authorized by the insured to obtain the insurance is not an agent for the purpose of receiving such notice.</p> <p>2. Insurance—extent of authority of agent to procure. An agent to procure insurance has no authority to surrender or cancel the policy obtained or to receive the return of the premium upon cancellation.</p> <p>3. Insurance—what essential to effectuate cancellation hy company. In order to effectuate a cancellation by the company, it must tender to the insured the unearned premium.</p> <p>4. Insurance—what not misrepresentation which will avoid fire policy. Held, that the evidence in this case did not show a misrepresentation or concealment as to the nature of the risk which rendered the policy void.</p>

<p>1. Municipal Court—when without jurisdiction of criminal cases. The Municipal Court of Chicago has no jurisdiction of an offense the punishment for which must he fine and imprisonment.</p> <p>2. Municipal Court—how act creating, construed. The Municipal Court Act is penal in so far as it provides a new method and a new tribunal for prosecuting and trying criminal cases, and therefore, to such extent, it must he strictly construed.</p>

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

<p>1. Amendments and jeofails—when allowance after verdict not atuse of discretion. Held, that after verdict it was not an abuse of discretion to permit an amendment which consisted in the adding of an additional plaintiff.</p> <p>2. Statute of Limitations—when amendment does not introduce new cause of action. The addition of a-co-plaintiff does not change the cause of action.</p>

<p>Municipal court—when without jurisdiction. The Municipal Court of Chicago has no jurisdiction of an action instituted by a sub-contractor against the owner of a building and the general contractor therefor, jointly, under the mechanic’s lien act—no contract relation existing between such sub-contractor and owner.</p>

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

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

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.

<p>1. Notices—statute requiring notice to city of personal injury construed.. This statute is mandatory and the giving of the notice required is a condition precedent to the right to the maintenance of the action.</p> <p>2. Pleading-—when declaration against city in action for personal injuries fatally defective. A declaration in an action for personal injuries against an incorporated city, village or town is fatally defective if it does not allege the giving of the notice to such city as required by statute; such a declaration is not cured by verdict.</p> <p>3. Pbactice—what may he reached hy motion in arrest. Where one totally omits to allege matter expressly or impliedly essential to his action or defense, such omission is not cured by verdict but may be taken advantage of by motion in arrest.</p>

<p>Practice—when entry of judgment non obstante veredicto improper. A judgment non obstante veredicto can only be entered where it is justified by the state of the pleadings; it is error to refer to the evidence and to predicate such a judgment thereon.</p>

<p>1. Master and servant—when relation of fellow-servants exists, as a matter of law. Held, under the evidence in this case, that the particular servants in question, engaged in the work of greasing an elevator, were fellow-servants as a matter of l'aw.</p> <p>2. Master and servant—when risk assumed. Where it appears that a servant had full and complete knowledge of the defect which caused his injury and appreciated the danger arising therefrom, he is deemed to have assumed the risk.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. William H. McSubbly, Judge, presiding.</p>

<p>Municipal corporations—liability for negligence. The city of Chicago is liable to the owner of a vessel for damages caused thereto by the negligent act of an employe of such city in control of a bridge in swinging such bridge against such vessel.</p>

<p>1. Appeals and erbobs—upon what assignment of errors cannot be predicated. A party cannot assign error with respect to matters which concern other parties not complaining thereof.</p> <p>2. Creditors’ bills—when decree subjecting property to judgment proper. Held, that under the evidence, it was proper to decree that the property in question in this proceeding was the property of the judgment debtor and not of his wife.</p> <p>3. Husband and wife—scrutiny of transactions between, when rights of creditors involved. As against creditors, transactions between husband and wife are viewed with suspicion, where there is evidence tending to show that the husband was merely using his wife’s name to cover up his own transactions. In such case the burden is upon the wife in claiming title to real estate to establish her ownership by a preponderance of the evidence.</p>