Volume 143 — Illinois Appellate Court Reports

<p>Partnership—when dissolution not established. Held, from the evidence in this case, that the dissolution of the partnership in question had not been established.</p>

<p>Bill for accounting. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>Master and servant—care required in selection of employes. A master is not a warrantor or insurer of the competency of his servants. A servant upon entering the employ of his master is held to assume the natural and ordinary risks incident to the business in which he engages and impliedly contracts that the master shall not be liable for injuries consequent upon the negligence of a fellow-servant in the employment of whom the master has exercised ordinary care and prudence, that is, a degree of care and prudence proportionate to the exigencies of the particular service.</p>

<p>Action of debt. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

<p>Bill to construe will. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Bill of interpleader—when should he dismissed. A bill of inter-pleader collusively interposed should be dismissed, it appearing in this case that the stakeholder complainant was not indifferent, that he had never in fact been harassed by contending claimants and. that the bill was in reality filed in the interests .of one of the parties defendant;</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochean, Judge, presiding.</p>

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

<p>1. Replevin—when owner may take possession. The lawful owner of personal property has the right in person or by agent to take possession of property owned whenever and wherever it may be found, if such possession may he taken in a lawful and'' peaceable manner.</p> <p>2. Replevin—what essential to recovery in action for. The plaintiff in an action of replevin must recover upon the strength of his own title.</p> <p>3: Replevin—effect given to return of officer. In an action of replevin the return of the officer upon the writ is conclusive as between the parties and cannot be contradicted or avoided in the suit for the purpose of defeating any rights which may have been acquired on the strength of it.</p>

<p>1. Statute op Limitations—when indorsement upon note does not toll. Indorsement of a payment by the payee does not toll the running of the statute in the absence of corroborative evidence of such payment.</p> <p>2. Statute op Limitations—what tolls running of 10-year period. While a new promise must be in writing to toll the running of the 10-year statute, a payment made upon a note is sufficient to toll the statute, if established by parol evidence.</p> <p>3. Statute op Limitations—when payment by executor tolls. A payment by an executor of a deceased maker of a note will toll the statute, if such executor had power to pay the just debts of the deceased.</p> <p>4. Tenants in common—when co-tenant cannot enforce face value of claim. A tenant in common who purchases a lien claim against the common estate can only enforce the same as against his co-tenants to the extent of the amount paid for such claim with legal interest.</p>

<p>Action in ease. Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.

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

<p>Trespass on the case. Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.</p>

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

<p>Instructions—when peremptory should not he given. A peremptory instruction should not be given for the defendant where there is evidence tending to support any count of the plaintiff’s declaration.</p>

<p>Assumpsit. Error to the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>Assumpsit. Error to the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>1. Municipal corporations—when dram-shop ordinance not invalid. An ordinance which gives to a city council “the exclusive right to be the sole judge to whom licenses shall issue” is not for that reason invalid.</p> <p>2. Dram-shops—when refusal to license, arbitrary and illegal. While a city council may have power in the exercise of a reasonable discretion of which it is possessed to limit the number of licenses that shall be granted on a particular street and within a certain block, such limitation should be definitely established by prescribing through legal enactment the number of such licenses to be issued, for the guidance of applicants, providing a method by which, in the event that applications were presented in excess of the number, it would be determined which of them should be granted; but where no such limitation has been so imposed, it is arbitrary, unreasonable and an abuse of discretion to deny a license to a particular applicant merely because the city council at the time of considering such application is of opinion that no more licenses for dram-shops should be granted with respect to the particular locality involved in the application.</p> <p>3. Mandamus—when answer to petition for, insufficient. An answer to a petition for mandamus charging arbitrary refusal to issue a dram-shop license, should do more ’ than deny in general terms that the application of the petitioner' was refused without reasonable cause; such answer should set up facts from which .the legal sufficiency of the denial can be determined.</p>

<p>Evidence—what incompetent upon damages' in action for death caused by alleged wrongful act. In an action for death caused by alleged wrongful act, it is incompetent to permit a widow, a child of the plaintiff's intestate, to testify as to the number, ages and sex of her children and that such intestate had supported them for a number of years during which time they had attended school; and the error in the admission of such evidence cannot be cured by remittitur.</p>

<p>Mandamus. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>1. Municipal corporations—duty of city comptroller. Held, that it was the duty of the city comptroller of the city of Bloomington to turn over moneys when collected to the lawful custodian thereof, namely, the city treasurer, but that in the performance of such duty he possessed a reasonable discretion.</p> <p>2. Mandamus—character of duty enforceable by. The duty, the performance of which it is sought to coerce by mandamus, must be actually due and incumbent upon an officer at the time of seeking relief, and the writ will not lie to compel the doing of any act which he is not yet under obligation to perform.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>Partition. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>1. General issue—what admitted 6y plea of. The plea of the general issue admits the ownership and control of the building in which the plaintiff was injured; also, that the defendants were partners, doing business under the partnership name charged; also, that such partnership owned and controlled such building.</p> <p>2. Practice Act—section & construed. It is not error for the court to deny, leave to file a plea to the jurisdiction where several defendants are joined, some residents of one county and some of another, if it appears that the resident of the county in which the suit is brought was apparently joined in good faith.</p> <p>3. Instructions—when do not ignore doctrine of assumed risie. An instruction in an action for personal injuries does not ignore the doctrine of assumed risk even though it concludes with a direction as to a verdict if the declaration negatives the question of assumed risk and the instruction' is predicated upon proof of the allegations of the declaration.</p> <p>4. Evidence—when opinions competent. The opinion of an expert may properly be given as to the proper method of doing work and as to the tools and appliances necessary where such matters are not of common knowledge and could not readily have been made intelligible to the jury.</p>

<p>Administration of estates—when executor liable to account. Held, under the evidence in this case, that a particular estate fund was held in the capacity of executor and not in that of agent of the person entitled to the same as her distributive share of such estate.</p>

<p>Gambling—when money loaned to he used in, cannot he recovered. Money loaned to enable the borrower illegally to speculate in grain cannot be recovered even though the lender did not expressly advise, abet or encourage the borrower in the commission of the illegal act; it is sufficient if the lender knew at the time he furnished the money that it was to be used for the purchase of illegal options.</p>

<p>Master and servant—when risks are assumed. A servant of sufficient age and experience is chargeable with knowledge of the ordinary conditions under which the business in which he is engaged is conducted and its ordinary risks and hazards, and he will be presumed to have assumed all such risks and hazards which to a person of his experience and understanding are, or ought to be, apparent and obvious.</p>

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

Action on the case for death caused by alleged 'wrongful act. Appeal from the Circuit Court of Montgomery county; the Hon. Albert M. Rose, Judge, presiding.

<p>1. Contracts—when in restraint of trade valid. A contract in partial restraint of trade, if reasonable as to time, place and terms, is not in violation of public policy and is valid and binding.</p> <p>2. Contracts—when void for uncertainty. A contract in partial restraint of trade is void for uncertainty if its terms are so indefinite as to make it impossible to determine with certainty whether the restriction provided by the contract is reasonable as to place or. whether or not the same has been violated.</p>

<p>1. Evidence—how common law of sister state may be established. Common law of a sister state may be shown by testimony of witnesses learfied in the law or by the books of reports of adjudged cases accredited in that state.</p> <p>2. Presumptions—as to law of sister state. The presumption is that the common law prevails in a sister state but this presumption is not overcome by testimony of lawyers practicing in such state which is in part uncertain and which is unsupported by the citation of corroborative decisions.</p> <p>3. Contracts—what not essential to valid rescission of agreement for purchase of real estate. The rescission of a contract for the purchase of real estate is valid, notwithstanding a fatal defect of title, upon which such rescission is predicated, is not pointed out by the vendee to the vendor, inasmuch as such vendor is presumed to know the law, and'is therefore bound to be apprised of such fatal defect of title.</p> <p>4. Appeals and errors—effect of incomplete abstract. Matters relied upon on review and not contained in the abstract filed pursuant to rule, will not be considered by the court.</p>

<p>Vebdici—when set aside as against the evidence. A verdict unwarranted by the evidence will be set aside on appeal.</p>

<p>Action commenced before justice of the peace. Error to the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding.</p>

<p>1. Evidence—what may he shown upon cross-examination. The interest- of a witness in the result of a pending action, consisting in the maintenance by him against the same defendant of kindred actions, may be shown upon cross-examination..</p> <p>2. Instructions—when should he peculiarly accurate. Where the case is close upon the facts, the instructions should be of special and.particular accuracy.</p>

<p>1. Attobney and client—rule of constructive knowledge. Knowledge by tbe client of facts. affecting litigation, is equivalent to knowledge upon the part of his attorney.</p> <p>2. Partition—when allowance of solicitor’s fees properly denied. If no decree could have been properly rendered by the court based upon the allegations of the original bill alone, then an allowance of solicitor’s fees should not be made. ■ 1</p> <p>3. Partition—when statute authorizing, allowance of solicitors fees does not. apply. The statutory provision authorizing the allowance of solicitor’s fees in partition proceedings upon certain conditions prevailing, has no application in favor of parties who joined in the original bill by supplemental bill.</p>

<p>Accord and satisfaction—when supported by sufficient consideration. Where a creditor receives anything of benefit to himself that he would not otherwise have had, together with a payment of a lesser sum than that which is apparently due, an accord and satisfaction is established.</p>

<p>. Bastardy proceeding. Appeal from the County Court of Fulton county; the Hon. J. D. Breckenridge, Judge, presiding.</p>

<p>Judgment by confession. Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>Contracts—when not in restraint of trade. A contract is not in' restraint of trade by which one agrees to buy out a particular coal merchant and then to buy coal at wholesale from the other party to the contract, in consideration of which such second party obligates himself not to sell coal at wholesale to any other dealer at the place in’question, it not appearing that the output of any other wholesale dealer or purchaser of coal was in anywise involved, limited or affected or that there was anything in the contract to establish the price of coal to be sold at the place in question.</p>

<p>Mechanic’s lien. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Assumpsit. Appeal from the City Court of Pana; the Hon. Josiah P. Hodge, Judge, presiding.</p>

<p>1. Pleading—effect of failure to deny averments of replication. Material averments contained in pleas not denied by replication are admitted.</p> <p>2. Tbial—when refusal to permit witness to he called not ground for reversal. After both parties have rested, it is a matter resting wholly in the exercise of a sound legal discretion by the court as to whether or not he will permit a witness to be called and a court of review will only disturb the exercise of such discretion when the same has been abused.</p> <p>3. Instbuctions—when not error to refuse correct. It is not error for the court to refuse to give an instruction containing an abstract proposition of law, even though such proposition be cor- . rectly stated.</p>

<p>Decree—when set aside as against the evidence. A decree which is manifestly against the weight of the evidence will he set aside on review.</p>

<p>Mandamus. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Verdict&emdash;when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p>

<p>Counties—power of toará of supervisors to fill vacancy in office of overseer of the poor. A hoard of supervisors of a county has no power to fill a vacancy existing in the office of overseer of the poor for a longer period than its own term of office.</p>

<p>1. Roads and bbidges—when town may demand aid of county. Sections 13, 14 and 19 of the Road and Bridge Act construed together, provide that whenever a town has levied 40 cents of the 60 cents which section 13 authorizes upon the $100, it is then in position to demand county aid, if it in other respects has met the requirements of the statute,</p> <p>2. Roads and bbidges—when county cannot raise question of absence of determination by highway commissioners of necessity for construction of bridge. After a county has entered into a contract which it had power to make for the construction of a bridge, it is no longer in position to set up a technical irregularity in the exercise of that power as against one with whom it has thus dealt.</p> <p>3. County—what not defense to action upon contract for construction of bridge. A county cannot defend as against a contract for the construction of a bridge into which it has entered upon the ground that the three supervisors appointed had not filed an itemized statement of the cost of the bridge and had never certified to the county that such bridge had been accepted by them.</p> <p>4. County—what contract of, rather than of individual supervisors. Seld, that the contract in suit in this case was one of the county, who was defendant, and not that of the individual supervisors.</p> <p>5. County—what not defense to action upon contract for construction of bridge. A county cannot defend as against a contract which it has made for the construction of a bridge upon the ground that the contract price of such bridge was less than the estimated price as fixed by the highway commissioners in their petition to the county board and because the cost of the bridge was not an amount more than 20 cents on each $100 of taxable property as shown by the latest assessment roll.</p>

<p>Principal and surety—what not defense to action upon official dond. In an action upon the bond of a township treasurer, the sureties cannot interpose by way of defense that reports made by such treasurer from time to time, of moneys in his hands, were false.</p>

<p>Judgment by confession. Appeal from the Circuit Court of Moultrie county; the Hon. William C. Johns, Judge, presiding.</p>

<p>Trespass on the case. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>Foreclosure. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.</p>

<p>1. Alteration of instruments—when bill of complaint does not state case for equitable interposition. A bill which seeks relief against the enforcement of an alleged altered instrument, does not state a case of equitable cognizance if it fails to set up the facts relating to the alleged alteration so that the court can determine whether or not the alteration was innocently or mistakenly made, or was .a wilful one, or was one that amounted to a spoliation merely.</p> <p>2. Injunctions—what solicitor’s fees should not be awarded upon dissolution. Upon dissolution of an injunction, it is only proper to award solicitor’s fees by way of damages for those services rendered by the defendant’s solicitor in securing a dissolution of the injunction upon the motion to dissolve.</p>

<p>1. Personal injuries—when doctrine res ipsa loquitur applies. Where an injury occurs to a person who is a passenger in the exercise of ordinary care upon the car of a common carrier by some defect in the machinery wholly under the control of the carrier, a prima facie case of negligence on the part of the carrier is established and the burden of proof is upon it to show that the accident was without its fault.</p> <p>2. Passenger and carrier—what not lack of ordinary care by former. The action of a passenger in not assisting to move a car, held, under the facts of this case, not to show an absence of ordinary care.</p> <p>3. Passenger and carrier—what not essential to establish relation of. It is not necessary to prove that one claiming to be a passenger has in fact paid his car fare in order tb constitute the relation of passenger and carrier; such a contract may be implied from slight circumstances and it need not actually be consummated by the payment of fare.</p> <p>4. Pleading—what admitted by plea of general issue. The plea of the general issue by a defendant traction company sued for personal injuries, admits the operation of the line in question.</p> <p>5. Damages—what competent to show value of services. In an action for personal injuries where damages resulting from loss of earnings is claimed, a question as follows, held proper: “What were your services just prior to this time fairly and reasonably worth?”</p>

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

<p>1. Appeals and errors—one good count sufficient to sustain judgment. The action of the court in refusing to withdraw particular counts from the jury is not error, even though such counts are insufficient to sustain a judgment. A judgment will he sustained if there is one good count to support it.</p> <p>2. Mines and Miners Act—section 19 construed. The words “all conditions” contained in section 18 of the Mines and Miners Act do not refer merely to such dangerous conditions as the report of the mine examiner may show to be such.</p>

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

<p>Divorce—what sufficient to establish right to temporary alimony. A wife, a party to a divorce proceeding, in order to establish her right to temporary alimony, need only show probable grounds.</p>

<p>Assumpsit. Appeal from the Circuit Court of Adams county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Action in case. Appeal from the Circuit Court of Shelby county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Amendments and jeofails&emdash;when action in permitting verification of plea proper. It is not an abuse of discretion for the court, even after the evidence upon both sides has been closed, to permit a defendant to verify a plea denying signatures to the instruments in suit.</p>

<p>1. Practice&emdash;when special findings not inconsistent with general verdict. A judgment should not be rendered upon special findings as contrary to the general verdict unless, considered as a whole, they are inconsistent with the general verdict.</p> <p>2. Verdict&emdash;when set aside as against the evidence. A verdict will be set aside on review when it is apparent that the same was not the result of an impartial judgment of the jury, but that it must have resulted from mistake, misconception or confusion in regard to the evidence, or that the jurors were influenced by some condition not proper to be considered by them.</p>

<p>1. Mechanic’s liens—when performance of contract sufficient. Substantial performance of a building contract is sufficient to entitle the award of a mechanic’s lien.</p> <p>2. Findings of court—when not disturbed on review. Where the chancellor has seen and heard witnesses, his findings of fact will not be disturbed on review unless' clearly and palpably erroneous.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Marion county; the Hon. John S. Stonecipher, Judge, presiding.</p>

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

<p>Evidence&emdash;when boohs of account incompetent. The ledger of a telephone company purporting to show toll charges is incompetent where it is not a book of original entries and is not made up from original charge memoranda slips.</p>

<p>Torts&emdash;effect of excessive levy by constable. A constable who makes an excessive levy without regard to law is liable in damages to the person injured.</p>

<p>Verdict—when disturbed as against the evidence. A verdict will be set aside on review as against the weight of the evidence, where clearly and manifestly so.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.

<p>Mechanics’ lien. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.</p>

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

<p>1. Mandamus—when evidence not competent in proceeding to compel furnishing of adequate train service. In an action to compel a railroad company to furnish adequate train service, it is not competent to show that the relators and others feared that if a mine were opened at the place in question, sufficient train service would not be afforded and that damage would result.</p> <p>2. Railroads—who cannot question manner of exercise of fram chise. The propriety of the manner in which a railroad company is exercising its franchise is a question which can only be raised by the state. Any question of illegal combination or arrangement that might affect the franchise of such a company can only be raised by The People in a proceeding instituted for that purpose.</p>

<p>Bill in chancery. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>1. Mines and Miners Act—who not competent to make mine examinations. No person however well qualified may he lawfully employed to make miné examinations until he shall have procured "a statutory certificate of qualification.</p> <p>2. Mines and Miners Act—when criminal prosecution under, will not. he sustained. A criminal prosecution under the Mines and Miners Act must have been conducted strictly in accordance with the law to be sustained against a defendant who is admitted to have had no criminal intent, where wilfulness is not proved dr claimed and where the evidence fails to show any actual knowledge on his part, either of the intention of any one connected with the mine to violate the statute, or of the fact that it has been violated.</p> <p>3. Mines and Miners' Act—when instruction in criminal prosecution not erroneous. In a criminal prosecution under the Mines and Miners Act in which wilfulness is charged, it is error to instruct a jury that they may disregard the question of wilfulness.</p>

<p>Information for carrying concealed weapons. Error to the County Court of Crawford county; the Hon. John C. Maxwell, Judge, presiding.</p>

<p>Bill in chancery. Error to the Circuit Court of St. Clair county;, the Hon. R. D. W. Holder, Judge, presiding.</p>

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

<p>Dram-shop Act—when action under section 9 abates. Immediately upon the death of any plaintiff in an action instituted under section 9 of the Dram-shop Act, the same abates, and it is error for the court without abating the action as to the deceased plaintiff to permit the jury to proceed and assess ■ the damages as to all of the parties, including such deceased plaintiff.</p>

<p>Scire facias. Appeal from the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.

<p>1. Mines and Minees Act—what “landing” within meaning of Act. The bottom of the shaft where the cage stops to let men off who are being lowered into the mine for the purpose of going to their respective places of work is a “landing,” within the meaning of the Mines and Miners Act.</p> <p>2. Mines and Miners Act—who entitled to protection hy provision requiring sufficient lighting of landings. Paragraph B of section 28 of the Mines and Miners Act providing for the sufficient lighting of landings was designed not only to protect those coming to the bottom from their working places for the purpose of leaving the mine, hut also those coming to the bottom for the purpose of going from there to their working places in the mine.</p> <p>3. Mines and Minees Act—what evidence competent upon question of wilfulness.. The charge being that the landing was insufficiently lighted, evidence is competent upon the question of wilfulness to show conditions upon previous occasions with respect to the matter of lighting.</p> <p>4. Statutory law—general rule of construction. In the interpretation of a statute the purpose of the statute must be borne in mind. Where the language used .will at all admit of it, it should be given meaning in harmony with the purpose.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Perry county; the Hon. Charles T. Moore, Judge, presiding.

<p>Action in case. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

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

<p>Employer and employe—when relation established. The relation of employer and employe is established as between one who in good faith enters into a contract with another whom he supposes is acting as the agent of a corporation, which corporation has so conducted its business as to justify such supposition.</p>

<p>Appeals and errors—when pro forma reversal will he awarded. Failure of an appellee to file a brief pursuant to rule of court justifies a pro forma reversal.</p>

<p>1. Evidence—-when general objection insufficient. A general objection is not sufficient where the nature of the question is such that it does not clearly appear “at first blush” to be improper.</p> <p>2. Instbuctions—when invade province of jury. An instruction invades the province of the jury by declaring a mere evidentiary fact to be conclusive of the issue.</p>

<p>Contract—when does not establish novation. In order that a third party may he hound to pay a debt of another who has given an order upon him for the payment thereof, it must appear that such third party has accepted such order or promised to pay such debt; the making of a payment upon account of such debt is not of itself sufficient to establish a novation.</p>

<p>Practice—when error to dismiss hill of complaint upon sustaining demurrer. It is error to dismiss a bill of complaint upon sustaining a demurrer which successfully challenges only an incidental portion of the relief prayed.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

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

<p>Criminal prosecution for seduction. Error to the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding.</p>

<p>Criminal prosecution for keeping gaming devices. Error to the Circuit Court of Lawrence county; the Hon. John C. Maxwell, Judge, presiding.</p>

<p>1. Trial—validity of agreement to try two causes by same jury. Held, that the agreement in this case to try a prosecution for seduction and another for bastardy by the same jury, was valid and binding upon the defendant, and that, upon the record, even though such agreement was not binding, no assignment of error could be necessarily interposed to the manner of proceeding.</p> <p>2. Trial—how remarles of counsel must 6e preserved for review. In order to save for review the propriety of remarks of counsel the same must be shown by the bill of exceptions.</p>

<p>Proceeding by citation. Appeal from the Circuit Court of Wayne county; the Hon. Jacob R. Creighton, Judge, presiding.</p>

<p>1. Dram-shop Act—when declaration states cause of action under section 9. Held, that the declaration in this case, substantially set forth in the opinion, stated a cause of action pursuant to section 9 of the Dram-shop Act.</p> <p>2. Damages—when exemplary, may he awarded without declaration charging wilfulness. Exemplary damages may be awarded where the proof justifies, without a declaration charging wilfulness, if wilfulness is not the substantive cause of action; likewise, may such damages be awarded in an action under section 9 of the Dram-shop Act without a declaration charging wilfulness.</p> <p>3. Damages—when objection to award of exemplary, cannot he made. If the damages awarded are no greater than the actual damages proven, no assignment of error with respect to the award of exemplary damages can be successfully urged.</p> <p>4. Trial—what remarles of counsel improper. In an action under section 9 of the Dram-shop Act it is improper for the plaintiff’s counsel to say to the jury that “the defendant makes a part of his money by selling liquors to boys and causing .them to become drunk,” but held in this case that the making of such remark, objection thereto having been sustained and a rebuke administered, did not require a reversal of the cause.</p>

<p>1. Negligence—when as to manner of employment of set-screw does not establish. The use of a projecting set-screw in machinery 'is not negligence per se, nor is the slight unusual projection of such a screw negligence per se.</p> <p>2. Contributory negligence—when servant guilty of. A servant-is guilty of contributory negligence who undertakes to do work known by him to be dangerous when he has the power and the opportunity to remove such danger.</p> <p>3. Master and servant—when doctrine of assumed risk applies. Held, that the servant injured in this case -assumed the risk of injury from the set-screw, knowledge of which he had and the danger of which he appreciated.</p>

<p>Trespass on the case. Appeal from the Circuit Court of Massac county; the Hon. W. W. Duncan, Judge, presiding.</p>

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

<p>Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Effingham county; the Hon. Michael O’Donnel, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of Crawford. county; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Actions in case. Appeals from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.</p>

<p>Evidence—what competent to show existence of liability to pay for services rendered. Expressions of intention to pay are competent as tending to show liability.</p>

<p>Action of debt. Appeal from the Circuit Court of Union county; the Hon. William N. Butler, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Effingham county; the Hon. Albert M. Rose, Judge, presiding.</p>

<p>Action in case. Appeal from the Circuit Court of Franklin county; the Hon. Jacob R. Creighton, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Bill in chancery. Error to the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>1. Insurance—what does not repeal act of 1891 prohibiting unjust discrimination. 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,” does not repeal by implication or otherwise the act of June 19, 1891, entitled “An act to prevent abuses and unjust discriminations,” etc.</p> <p>2. Insurance—what companies subject to provisions of act of 1891 prohibiting unjust discrimination. All insurance companies doing business in this state, including those organized upon the assessment plan pursuant to the act of June 22, 1893, are subject to the provisions of the act of June 19, 1891, prohibiting unjust discrimination.</p> <p>3. Insurance—act of 1891 prohibiting unjust discrimination construed. This act does not authorize the imposition of a penalty for each violation.</p>

<p>1. Injunction—when does not lie at instance of taxpayer. An injunction does not lie against school directors at the instance of a mere taxpayer where it does not appear that he has been injured in his property rights or that such rights are in anywise threatened or in danger.</p> <p>2. Schools—power of directors to lease school property. Held, that the lease of school property made the subject of attack in this case was within the authority of the school directors to make.</p>

<p>1. Recoupment—limit of rights under 'defense, of. Where á recoupment is interposed, the amount of the plaintiff’s claim may be reduced or totally defeated but no recovery over may properly be allowed.</p> <p>2. Appeals .and errors—when reversal will not he ordered. Where the error determined by the Appellate Court is merely that a judgment was rendered for an amount in excess of what the law would, under the state of the pleadings, in any event, permit, the error is one which may be corrected in the Appellate Court without remanding the cause for a new trial.</p>

<p>Bill in chancery. Appeals from and error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

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

<p>1. Vabiances—when deemed waived. An objection of variance if not specifically made at the time of the introduction of the evidence nor preserved by appropriate instructions is deemed to have been waived.</p> <p>2. Instructions—effect of failure to except to. An instruction which defines the obligations of one of the parties to the cause, if not excepted to, is deemed and taken as the law of the case in that regard.</p> <p>3. Negligence—when question of, to he determined hy jury. Whether the defendant in an action for personal injuries ought to have foreseen that such .an accident as did happen might happen and whether the danger of such an accident could have reasonably been anticipated by the defendant, is ordinarily a question to be determined by the jury.</p> <p>4. Tbial—when argument of counsel not ground for reversal. A judgment will not be reversed merely -because the plaintiff’s counsel argued that from facts proven by the evidence, a conclusion followed that was not a proper conclusion from such facts.</p>

<p>1. Tender—when need not he made. A tender is not - required where it is apparent that the making thereof would have been a useless act.</p> <p>2. Costs—when should he aioarded against successful complainant. Costs should be awarded against the complainant where' he has failed to recover more than that which the defendant had admitted and offered by answer to pay; this notwithstanding ■ no actual tender of the money was made, it appearing that actual tender would have been useless.</p>

<p>1. Assignments—who not tona fide holders for value without notice. A bank who takes by assignment certificates representing a fund in the hands of a municipal corporation is not a tona fide holder without notice, even though it 'has ■ paid value, where the assignment to the bank is made by the parties designated in such certificates who are therein designated as “trustees.”</p> <p>2. Trusts—when action lies to recover trust funds. Held, that the action in this case was properly prosecuted by the trustees in question and that such trustees were not guilty of laches.</p>

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

<p>Creditor’s bill. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.</p>

<p>Trover. Appeal from the Circuit Court of Cook county; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Verdict—lohen not set aside as against the evidence. A verdict will not be set aside as against the evidence unless there is a manifest preponderance of evidence against it.</p> <p>2. Imputable negligence—how far doctrine of, applicable. The negligence of one of the next of kin of the plaintiff’s intestate contributing to the death of such intestate is not a defense to the merits of the action; at most, such negligence will but bar the right of such next of kin to damages.</p> <p>3. Imputable negligence—when doctrine of, does not apply. The negligence of the parents of an- infant child in entrusting it to the care of another child cannot be urged in the absence of evidence tending to show that such - parents did so entrust such child.</p> <p>4. Imputable negligence—when doctrine of, does not apply. It is not negligence as a matter of law for a parent not to forbid or prevent an eleven year old child “in the habit of doing errands for her mother” taking in full daylight her three year old sister with her to the dairy “for company.”</p> <p>5. Instructions—when modification proper, where death resulted from plaintiff’s intestate being struclc by a street car. An instruction given iñ form as follows:</p> <p>“If the motorman in charge of the defendant’s cars exercised ordinary vigilance and care to do what he could do to avoid injuring the plaintiff, after it was possible for him, by the exercise of ordinary care, under all the circumstances in evidence, to know of her danger, then the defendant is not liable, and your verdict should he not guilty,”</p> <p>was not improperly modified by striking therefrom the following:</p> <p>“The defendant company was not required to assume, when the deceased was on the street on which the defendant- was running its train, that she was going to run in front of its -car, nor did the law require the defendant to stop its car lest she might do so.”</p>

<p>1. Passenger and carrier—duty to 'protect from assault. The obligation on a carrier to use due diligence through its servants to protect its passengers from injury and abuse is equivalent to a guaranty that such injury and abuse shall not come from its servants themselves.</p> <p>2. Evidence—what part of res gestee. If an injury to a passenger results from a scuffle between her husband and the conductor of the car, the language of the dispute which immediately preceded the scuffle is competent as part of the res gestee.</p> <p>3. Instructions—effect of repetitions in. It is not reversible error to give more than one instruction containing or involving the same doctrine.</p> <p>• 4. Instructions—when ces to exercise of ordinary care properly refused. An instruction as follows:</p> <p>“If you believe from the evidence under the instructions, the plaintiff could and would on the occasion in question have avoided the alleged injury by the exercise of ordinary and reasonable care and prudence on her own part, and that she did not exercise such ordinary and reasonable care and prudence, and as an approximate result thereof received the alleged injury, she cannot recover in this case,”—</p> <p>held properly refused in a casé where the injury resulted to the plaintiff by being inadvertently struck by the conductor in charge of the car in which she was riding while such conductor was In a scuffle with the plaintiff’s husband, the court holding that under the facts of the case such an instruction could only have been interpreted to mean that the jury must hold it entirely the plaintiff’s own fault that she was hurt, if they believe that she would not have been hurt if she had remained impassively in her seat when the assault on her husband was made or threatened.</p>

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

<p>1. Instructions—when presentation too late. An instruction presented in contravention of a rule of the Superior Court after the argument to the jury has begun, may properly be refused for that reason.</p> <p>2. Negotiable instruments—when bank liable to holder of check. Prior to the act of June 5, 1907, a bank was only liable to the holder of a check if it had sufficient bankable funds to pay the same on deposit subject to the order of the drawer.</p> <p>3. Negotiable instruments—effect of payment on forged indorsement. The payment of a-check by the drawee bank on a forged indorsement, does not constitute nor prove the acceptance of the check by the bank so as to make it thereafter as an acceptor of the check, liable to the true owner.</p>

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

<p>Tbial—when refusal to permit re-opening of case not ground for reversal. After the evidence upon both sides has been closed and the court has indicated his intention of directing a verdict, it is not an abuse of discretion to refuse to re-open the case to permit the introduction of additional testimony, where the offer of proof is indefinite and its probative value unshown.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson P. Going, Judge, presiding.</p>