Volume 146 — Illinois Appellate Court Reports

<p>1. Evidence—what competent upon question of handwriting. If a witness has stated that a certain signature in issue is not his, pointing out the points of difference existing therein from his regular signature, it is competent upon cross-examination to show him a signature claimed not to contain such points of difference and ask him if such signature is not his.</p> <p>2. Evidence—collateral matters incompetent. It is improper to permit a witness to testify to a controversial conversation had between the plaintiff to a suit and a third party, such conversation in nowise pertaining to the issues of the cause.</p>

<p>Trespass on the case. ' Appeal from the Circuit Court of Macon</p> <p>county; the Hon. William: C. Johns, Judge presiding.</p>

<p>1. Negotiable instruments—rights of bona fide purchaser for value before maturity. A bona fide purchaser oí a negotiable instrument with a warrant to confess judgment attached is entitled to recover the principal called for by the note together with his attorney’s fees where judgment has been confessed, in the absence of any competent evidence tending to show that such purchaser had notice or knowledge of the alleged equities sought to be interposed by way of defense.</p> <p>2. Negotiable instruments—when assignment passes legal title to. An indorsement upon the back of a promissory note as follows: “For value received I hereby assign all right, interest or title in the within note to I. N. Porter or bearer, March 14, 1905,” passes the legal title.</p> <p>3. Negotiable instruments—effect of naming fictitious person as payee. There is no statute in this state forbidding or restricting the use of the name of a fictitious person as payee or transferee of a negotiable instrument, and in the absence of any such statute a negotiable instrument payable to the order of a fictitious person is to be treated as if made payable to bearer and is transferable by delivery.</p> <p>4. Witnesses—when incompetent by virtue of interest. In an action upon a promissory note the makers are incompetent to testify upon their own behalf where it is conceded that the adverse parties acquired their title as legatees of the owner of the note.</p>

<p>1. Certiorari—when writ premature; when not. Where a tribunal usurps jurisdiction, or acts in the absence of or in excess of authority, the common law writ of certiorari is issuable before the proceedings instituted before such tribunal shall have culminated in a final order or judgment; but where a tribunal possesses jurisdiction to hear and determine the cause the writ will not issue until the proceeding has terminated, and then only if it shall appear that such tribunal has entered an illegal judgment or order.</p> <p>2. Certiorari—when issuance of writ premature to determine propriety of vacation of road. A writ of certiorari should not issue to review the proceedings of a board of highway commissioners in vacating a road until a final order of vacation has been entered.</p>

<p>1. Appeals and errors—when action of court in sustaining demurrer to pleas not ground for reversal. Even if a demurrer to a plea is improperly sustained, such action of the court will not reverse if upon the trial of the cause the court has accorded to the defendant- all the benefits of the defense sought to be set up by such plea.</p> <p>2. Schools—liability of sureties upon bond of treasurer of township school fund. The liability of sureties upon the bond of a treasurer of a township school fund is not limited merely to the term of office of such treasurer and a reasonable time thereafter within which his successor shall qualify, but extends up to and includes the period to the time of the actual qualification of the successor of such treasurer.</p>

<p>Appeals atto ebbors—of lúhat complaint cannot be made. A party cannot complain of a theory of recovery adopted by the trial court where he himself by his instructions has adopted such theory.</p>

<p>1. Common carriers—burden to show assent of shipper to restrictive conditions of bill of lading. The rule that where a contract limiting the liability of the carrier is contained in a bill of lading constituting both a receipt and a contract, the burden is upon the carrier to show that the shipper assented to the terms and conditions of the contract, is as applicable in an action of assumpsit to recover damages for the breach of an alleged special contract as in an action of tort to recover damages for negligence.</p> <p>2. Common carriers—when contract predicated upon published tariff schedules does not arise by implication. Held, under the facts of this case, that a contract between the shipper and the carrier based upon the rate made by the carrier to the shipper according to the published tariff schedules, did not arise by implication.</p> <p>3. Interstate commerce—what does not render contract discriminatory. A contract of shipment made by a railroad company which contains a provision providing for carriage by a particular train or within a particular time, is not discriminatory and void within the meaning of the Interstate Commerce Act; and this rule applies as well to actions arising in contract as to those sounding in tort.</p>

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

<p>1. Notices—when notice under act entitled “An Act concerning suits at law for personal injuries against cities, villages and towns,” sufficient. A notice given pursuant to the act above is sufficient as to the description of the place where the accident in question occurred if such description is such as will enable the municipal authorities to ascertain the place in question by the exercise of reasonable diligence and such description may be by reference to particular buildings or to another street or to natural objects.</p> <p>2. Personal injuries—when municipality liable for, happening upon public street. If a municipality has assumed the duty of constructing and keeping in repair the sidewalk upon which a party is injured, for a considerable length of time prior to the accident in question, and has treated the same as a public sidewalk, it is liable for damages for an injury resulting from its failure to exercise reasonable care to keep said sidewalk in a reasonably safe condition for travel, irrespective of whether title to the street has been legally acquired by condemnation, grant, prescription or dedication.</p>

<p>Assumpsit. Appeal from the Circuit Court of Mason county; the Hon. Gut R. Williams, Judge presiding.</p>

<p>Nuisances—wiiat does not lar action for damages arising from. It is no bar to an action for the recovery of damages that the plaintiff has made no objection or protest against the creation or continuance of a nuisance from which the injury and resulting damages arose.</p>

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

<p>Dubess—when payment made under. The payment of a license fee is involuntary where made in order to enable the parties making the same to do a lawful act and to prevent police interference, and the amount so paid, if illegally exacted, may be recovered where the payment has been made under protest.</p>

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

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

<p>1. Landlord and tenant—what does not release from, obligar tions of lease. Held, that the arrangement in evidence in this case did not operate to release one of the lessees of the obligation of payment provided by the lease.</p> <p>2. Landlord and tenant—what does not release from obligar tions of lease. Held, that the evidence in this case did not show a release of one of the lessees from the obligation to pay rent provided by the lease.</p>

<p>1. Appeals and errors—of what complaint cannot "be made. A party cannot upon appeal complain of the action of the court taken at his own instance and request.</p> <p>2. Administration of estates—section 81 of act construed. Section 81 of the Administration Act was designed by the legislature to give to the administrator a more speedy and less expensive mode for the recovery of assets belonging to the estate which he represents, and is cumulative to the ordinary remedies of detinue, trover and replevin.</p>

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

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding.

<p>Bill in chancery. Appeal from the Circuit Court of Ford county; the Hon. George W: Patton, Judge, presiding.</p>

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

<p>1. Instructions—when error in refusing, which preclude recovery upon particular counts, waived. Any error committed by the trial court in refusing instructions directing the jury to find against the plaintiff on particular counts is waived by tendering at the same time with such instructions, instructions which present the issues of the cause upon the declaration as filed.</p> <p>2. Instructions—length of, criticised. In this case an instruction of three full printed pages is criticised as too long, as tending more to mislead than to instruct.</p> <p>3. Variance—how objection for, should be made. If there is a material variance between the averments and proof, the party urging such variance should state the same specifically to the court at the time the objection is made.</p> <p>4. Trial—when conduct of counsel will not reverse. Notwithstanding the conduct of counsel may he open to criticism, it will not constitute ground for reversal in the absence of a showing of prejudice.</p> <p>5. Verdicts—effect of several concurring. Where three juries have passed upon a cause and each found the same way, the Appellate Court will be slow to disturb the third verdict in the absence of prejudicial error.</p>

<p>1. Corporations—section 16 of act construed. While this section imposes personal liability upon a director who assents. to the creation of a corporate debt in excess of the amount of the capital stock of the corporation in question, yet imposition of the personal liability thereby provided for is not dependent upon the solvency or insolvency of the corporation at the time the director assents to allowing its indebtedness to exceed its capital stock.</p> <p>2. Corporations—extent of liability of director under section 16 of act. When once the suretyship provided for by section 16 of the Corporation Act has been established or created, a liability is established continuing until the indebtedness of the corporation shall be reduced to the amount of the capital stock; this liability arises for the benefit of all creditors of the corporation (if it becomes insolvent) although the corporation may have had other assets at the time of the creation of the directors’ liability.</p> <p>3. Corporations—what does not preclude creditor from enforcing personal directors’ liability under section 16 of act. The mere fact that the creditor is willing to accept the notes of the corporation without their indorsement by the directors thereof, does not preclude such “creditor from enforcing the distinct and separate personal liability of such directors imposed by section 16 of the Corporation Act.</p> <p>4. Corporations—what does not preclude creditor from, enforcing personal directors’ liability imposed by section 16 of act. Held. that the relations of one of the officers of the bank creditor with the corporation in this case were not of such a character as to preclude such creditor from enforcing the personal liability of the directors of the corporation as fixed and provided for by section 16 of the Corporation Act.</p>

<p>1. Sales—what essential to recover upon warranty. In order to recover upon an express warranty, it is essential that the vendee show that the merchandise sold and delivered was not at the time of such sale and delivery in conformity with the warranty.</p> <p>2. Sales—when recovery cannot he predicated upon implied warranty. The acceptance hy the vendee of an express and written warranty is a waiver of any right to rely or recover upon an implied warranty.</p> <p>3. Measube of damages—in action for breach of warranty. In an action for the breach of an express warranty of merchandise, the true measure of damages is the difference between the actual cash value of such merchandise on the day of sale and the cash market value thereof on that date if such merchandise had fulfilled the terms of the warranty.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Christian county; the Hon. James H. Morgan, Judge, presiding.</p>

<p>1. Chancery—what sufficient adoption of verdict of jury. A chancellor adopts the verdict of a jury, and the findings of that jury as effectively as though he enters an order explicitly to that effect where he overrules of record a motion to set aside such verdict and to grant a new trial and dismisses the bill at the costs of the complainant who was defeated by such verdict.</p> <p>2. Appeals and errors—when findings of fact in chancery will not be disturbed. Where the evidence in a suit in chancery is conflicting, the witnesses having been examined orally in open court, an error in a finding of fact must be clear and palpable to authorize a reversal</p> <p>3. Sepabate maintenance—when form of issue submitted to jury cannot be complained of. Where the court has submitted to the jury the issue presented by the bill in the form in which it is so presented, no complaint can thereafter be made by the complainant in such bill of the form of issue submitted.</p>

<p>Cities, villages and towns—when anticipation warrants authorized; when not. Since July 1, 1901, orders cannot be issued in anticipation of a tax to meet or pay miscellaneous items of indebtedness owing by a county, but when the board of a county shall have determined that it has insufficient money" on hand to defray necessary expenses of the county, it then becomes the duty of the county board to provide a fund for that purpose by issuing orders which draw interest after thirty days from their issuance in anticipation of taxes levied.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding.</p>

<p>Partition—when solicitor's fees not taxable as costs. If the complainant’s solicitor has neglected to make one having an interest in the premises partitioned a party to his bill and such interest is brought to the attention of the court for the first time by answer to the original bill and by cross-bill, an award of solicitor’s fees taxable as costs is unauthorized.</p>

<p>1. Tbial—when remarles of counsel ground for reversal. In an action under the Mines and Miners Act for wilful violation of the statute, remarks of counsel as follows: “They take them down there and cripple them and then throw them hack on you citizens of this county,” is prejudicial and ground for reversal even though objection to such remarks is sustained by the trial court.</p> <p>2. Mines and Minees Act—when instruction submits improper issue. In an action to recover for the wilful violation of the Mines and Miners Act, it is error to submit the cause to the jury as one of negligence.</p>

<p>Replevin. Appeal from the County Court of Moultrie county; the Hon. E. D. Hutchinson, Judge, presiding.</p>

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

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

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

<p>1. Mechanic’s liens—when sufficiency of petition as to contract set forth not subject to review. A defendant is not entitled to raise on appeal the question of the sufficiency of the allegations of the petition as to the contract sought to be made the basis of the relief, where such defendant has answered the petition and made no objection to the competency of the contract under the petition.</p> <p>2. Mechanic's mens—when subcontract sufficient under law of 1905. If the time fixed for the completion of the original contract is within the provisions of the Mechanic’s Lien Act of 1895, the subcontract will support a decree as against the owner who is a party to the original contract notwithstanding the subcontract may not fix the time for completion and payment.</p>

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

<p>1. Miners and Miners Act—extent of duty to mark dangerous places. The provisions of the Mines and Miners Act which provide that no one shall be allowed to enter a mine to work therein except under the direction of the mine manager “until all conditions have been made safe” and that when any dangerous condition is discovered to exist the examiner shall place a notice to all men to keep out, while it is made the duty of the mine manager to “see that all dangerous places above and below are properly marked and that danger signals shall be displayed wherever they are required,” apply to all dangerous places in a mine whether such places are dangerous by virtue of their original construction or by reason of conditions subsequently arising.</p> <p>2. Pleading—what allegations of declaration may he rejected as surplusage. In an action of tort all allegations not essential to the cause of action may be rejected as surplusage and a recovery sustained if proof is made of the essential allegations.</p>

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

<p>1. Evidence—when admission .of, which invades province of jury, not ground for reversal. In an action for damages for failure of a carrier to transport within a reasonable time, it is error to permit a witness to state what was a reasonable time for such transportation, but such error will not reverse in the absence of prejudice appearing.</p> <p>2. Common carriers—-what not error to exclude, in an action for failure to transport within a reasonable time. Held, not error in this case for the court to refuse to allow the defendant carrier to prove that the delay of the train upon which the merchandise was being carried was unavoidable by the exercise of reasonable care and diligence, it appearing that such train was the second section of the train upon which such merchandise was to be carried and that no evidence was introduced tending to show a good excuse why such merchandise was not placed upon the first section of such train.</p> <p>3. Common cabbiebs—when not error to exclude evidence tending to show shipper’s assent to restrictive conditions. Held, that while it was error to sustain an objection to a question of the carrier put to the shipper asking him if he knew what the contract (known as a shipper’s contract) was at the time he signed it, yet that such error was harmless in view of the fact that such shipper afterwards testified that he simply signed the contract, took it without reading it and did not know its terms.</p> <p>4. Common cabbiebs—effect of presentment of claim for damages. A shipper who has made a claim for damages against a carrier for failure to transport within a reasonable time, is limited in his recovery to the amount claimed of such carrier in his first presentment of claim thereto.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from City Court of Pana; the Hon. Jqsiah P. Hodge, Judge, presiding.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge presiding.</p>

<p>Damages—what may not he recovered, in an action for failure promptly to transmit telegraphic message. If the telegram not promptly delivered does not show upon its face that it related to a commercial transaction, damages suffered in connection with such a transaction as a result of the non-delivery of such telegram cannot he recovered.</p>

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

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

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

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

<p>Instructions—effect of refusing upon particular issue. It is error to refuse to give to the jury a proper instruction upon a material issue in the cause, the effect of such refusal being to exclude such issue from the consideration of the jury.</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>Tort. Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>1. Judgments—when discontinuance proper; when not. Judgment that a suit be discontinued is proper where the plaintiff voluntarily withdraws his suit or where he is regarded as out of court by some technical omission, mispleading or the like; but such a judgment in an action ex contractu is informal if entered as to two defendants, one of whom has appeared and is in default and the other of whom has not been served. The judgment as an entirety, however, taken in this case as equivalent to a judgment in favor of two of the three defendants and as against the third of them.</p> <p>2. Judgments—against whom must he rendered in actions ex contractu. In an action ex contractu judgment must be rendered against all defendants who have been served or against none.</p> <p>3. Warehouseman—burden of proof in action against. In an action against a warehouseman for not delivering goods, the burden of proving the delivery to the warehouseman and a failure to redeliver by him, is on the plaintiff, but those facts being proved, it devolves on the warehouseman to show that the goods were lost without his fault.</p> <p>4. Common carriers—when action of tort lies to recover for lost merchandise. Merchandise taken from cars of a carrier may be recovered in an action of tort.</p>

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

<p>Personal injuries—When doctrine res ipsa loquitur applies. The doctrine res ipsa loquitur applies in favor of one who is employed on the main floor of a building in course of erection who is injured by being struck by a falling beam which was under the control of the defendant who was not the master of the person so injured.</p>

<p>Personal injuries—when recovery cannot he sustained. Where an injury results either through the carelessness of the plaintiff or because of some danger inherent in the work which he was doing at the time, a recovery therefor will not be sustained.</p>

<p>1. Master and servant—who may he vice-principal. A superior servant or vice-principal may be a fellow-servant; one of two servants in equal station or authority may be vice-principal, and, furthermore, though it may rarely occur, no principle of law prohibits a subordinate employe being made a vice-principal for a particular purpose or a particular occasion. The question is one to be resolved by a consideration of the facts and circumstances in evidence.</p> <p>2. Master and servant—how question of fellow-servants determined. The question of fellow-servantship when raised cannot always be disposed of by ascertaining what was generally the position of the person in a given case contended to be a fellow-servant. In a case of contradictory and conflicting testimony, in respect to the facts upon which the question must be determined then the question is always one of fact to be determined, when there is a trial by a jury, upon proper instructions as to what constitutes the relation of fellow-servants or the position of vice-principal. But in case of no conflict of evidence in respect to the facts upon which the question is to be determined, then the question is always one of law to be settled by the court, whether the trial is one by jury or not.</p> <p>3. Master and servant—how question of liability determined, where servant whose negligence is in question, occupied dual position. When a particular employe occupies a dual position of fellow-servant and vice-principal, then it is to be ascertained whether the negligent act complained of arose out of or was the direct result of the exercise of the authority conferred upon him by the master over his co-laborer, and if it occurred in the exercise of such authority, then the master is liable for the negligence; otherwise not. The master is liable also where the injury results from the negligence of the vice-principal as such in combination with the negligence of such vice-principal in his capacity of fellow-servant, provided, however, that his negligence in the capacity of vice-principal is then such that the injury would not have happened but for that negligence.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Michael J. Girten, Judge, presiding.</p>

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

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

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

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

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

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

<p>1. Appeals and ebbobs—effect of failure to assign cross-errors. A motion to strike a portion of a bill of exceptions, which motion has been presented to and been denied by the trial judge, is not preserved for review in the absence of an assignment of cross-error.</p> <p>2. Bum op exceptions—when motion sought to he preserved for review not shown to have been overruled prior to term of presentment of bill of exceptions. Upon a motion to strike that matter contained in a bill of exceptions which refers to the action of the court in overruling a motion to dismiss made prior to the trial upon the ground that such motion was determined at a term prior to the term at which the bill of exceptions was presented and that no extension of time beyond such term had been provided for, it must clearly appear that such motion was in fact finally disposed of during the term preceding the presentment of the bill of exceptions, otherwise the motion to strike will be denied.</p> <p>3. Corporations—act regulating admission of foreign corporations to do business in Illinois, construed. A foreign corporation which has not complied with the act of May 18, 1905, entitled “An act to regulate the admission of foreign corporations for profit to do business in the State of Illinois,” while incapable of maintaining actions in this state may none the less be lawfully sued in this state.</p> <p>4. Corporations—right of domestic to sue foreign corporation in this state notwithstanding such domestic corporation has not complied with the laws of the state of the organisation of such foreign corporation. The principle of comity in Illinois does not go so far as to preclude domestic corporations from maintaining in this state a suit against a foreign corporation of another state in which other state such domestic corporation has done business without complying with the laws relating to foreign corporations. Inability of such domestic corporation to sue in such foreign state, does not affect the status thereof so to maintain actions in this state.</p> <p>5. Corporations—when contract not void for failure of foreign corporation to comply with state regulations. A contract made in good faith and partly executed which is not in its nature immoral is not void because of the failure of one of the parties (an Illinois corporation) to comply with the statutes of the state where such contract was made and to be performed which pertain to foreign corporations doing business in such state of performance. (So held with respect to the statutes of Minnesota.)</p> <p>6. Contracts—what not ultra vires. A corporation organized for the purposes of “mining smelting, reducing, refining and working of iron ores and other minerals and the manufacture of iron, steel, copper and other metals,” has necessarily implied power to purchase coal for such purposes and likewise has the power to contract to sell and deliver coal acquired by it.</p> <p>7. Contracts—rule of construction with respect to validity. Where two constructions may be given to a contract one of which will give it validity and the other of which will render it invalid, the former will be adopted.</p> <p>8. Contracts—when pro rata delivery of merchandise not justified. If one agrees to sell and (subject to intervening causes beyond his control) to deliver a commodity, it is not the law that upon a showing of such intervening causes preventing full delivery, a pro rata delivery may be made to the vendee, and others with whom contracts have been contemporaneously and subsequently made for like deliveries of such commodity. Neither is it competent to prove a custom entitling such vendor so to do.</p> <p>9. Sales—what contract of. Held, that the contract set forth in this opinion although ambiguous in form, was one of purchase and sale.</p> <p>10. Definitions—“estimated.” “Estimated” held the equivalent of “more or less.”</p> <p>11. Measure of damages—in action for failure to deliver commodity as per contract. In an action by a vendee against a vendor for failure to make deliveries of coal pursuant to contract, the following instruction is held correctly to state the measure of damages:</p> <p>“The court instructs the jury that the measure of damages in this case, if you shall find that the plaintiff is entitled to recover damages, is the difference, if any, between the market price of the coal mentioned in the contract offered in evidence herein and the contract price at the time or times the same should have been delivered.”</p> <p>Actual resales not being essential to recovery for coal not delivered.</p>

<p>Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>1. Appeals and ebbobs—what questions cannot he urged in Appellate Court. The unconstitutionality of a law is not subject to review in the Appellate Court.</p> <p>2. Mastebs in chancery—when findings of fact not disturbed. The findings of fact by a master will not be disturbed on review unless clearly and manifestly against the weight of the evidence.</p> <p>3. Abchitects—when final certificate not void. Held, under the facts of this case, that the final architect’s certificate, given in this case was not void.</p> <p>4. Mechanic’s hen—when contractor’s statement of payment to subcontractor waived. The provisions of the Mechanic’s Lien Act requiring the contractor’s statement of payment to subcontractors or a waiver of lien from them as a prerequisite to a demand for payment, are for the benefit of the owner as well as for the subcontractors, but the fact that such statements or waivers are not made will not forbid a lien where no demand is made by the owner for them; the failure to make such a demand operates as a waiver.</p>

<p>1. Bra 03? EX033PTI0NS—should show that it contains all the evidence. A bill of exceptions should certify that it contains all the evidence received in the trial court; the absence of such a showing raises a presumption of the existence of other evidence tending to sustain the judgment; to avail of the absence of such a showing the appellee should assert in his brief that there was other evidence than that shown in such bill of exceptions.</p> <p>2. Negotiable Instruments—what not competent to affect endorsement. While parol evidence may be competent to show that an endorsement was not intended as a contract of guaranty, yet such evidence is not competent to show that the contract in question was not absolute but conditional.</p>

<p>Action in debt. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

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

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

<p>1. Teiai—when jury must he called. Upon the hearing of a cause appealed from a justice, it is error for the court to proceed without the intervention of a jury, the defendant to the action who has taken such appeal not appearing and. not having waived trial by jury.</p> <p>2. Costs—form of judgment with respect to. Costs which follow as an incident to a judgment should not be included therein.</p>

<p>Assumpsit. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

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

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

<p>1. Municipal Court—what waives question of jurisdiction. A defendant by filing a general appearance, demanding a trial by jury and by participating in the trial, waives the question of the jurisdiction of the court over his person.</p> <p>2. Municipal Court—when has jurisdiction over person of defendant. The Municipal Court has jurisdiction over the person of the defendant in suits where the defendant “resides or is found within the city of Chicago.”</p>

<p>Assumpsit. Error to the Superior Court of Cook county; the Hon. Alonzo K. Viokebs, Judge, presiding.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. Wtt.t.tatw N. Cottbeií, Judge, presiding.</p>

<p>1. Common carbiebs—when forwarding companies are. Forwarding companies which undertake for hire to transport baggage from its starting point to its final destination, such transaction being within the ordinary course of their business, are common carriers within the meaning of the law.</p> <p>2. Common cabbiers—extent of obligation of forwarder. Where a forwarder or wharfinger only delivers goods to a carrier for transportation to a particular point, there to be delivered by the carrier to the consignee named by the shipper, with the delivery to the carrier the duty of the forwarder or wharfinger is ended.</p>

<p>1. Dbam-shop Act—what allegations sufficient to permit evidence of sales by defendant’s servants. In an action under the Dram-shop Act for loss of support, an allegation that the defendant sold liquor, etc., is sufficient to enable proof of sales of liquor, etc., by the servants of such defendant.</p> <p>2. Evidence—when statements made by party’s own witness cannot be shown. When a witness has not given adverse testimony the party calling him is not permitted to prove that he had made statements which, if sworn to at the trial, would tend to make out the case of the party calling such witness.</p>

<p>1. Contracts—effect of seal. A seal is presumptive evidence of a sufficient consideration to support a covenant to pay, and the burden is upon the other party to show that there was no consideration therefor.</p> <p>2. Contracts—what consideration will support. The execution of an instrument by a party not obligated to execute the same, the execution of which instrument enables the collection of money without suit, is a valid consideration to support an obligation to pay money.</p> <p>3. Assumpsit—when lies, at instance of third party, upon sealed instrument. A person for whose benefit a promise to pay has been made by a sealed instrument may maintain assumpsit thereon in her own name.</p>

<p>Verdict—when set aside. A verdict rendered against a party who does not appear by the evidence to have assumed in anywise the obligation of payment sought to be enforced, will be reversed.</p>

<p>1. Assumpsit—what essential to maintenance of. The classifications of liability sustainable in assumpsit are, (a) liability upon express promises or contracts and (b) liability upon implied promises or contracts. Implied promises are divided into promises implied in fact and promises implied in law. Contracts based upon promises implied in fact arise upon circumstances being proven which, according to the ordinary course of dealing and the common understanding of men, show what is in law regarded as sufficient for a mutual intent to contract, that is, circumstances from which the intent to contract can be inferred. Contracts based upon promises implied in law are a legal fiction adopted for the purpose of enforcing legal duties by actions ex contractu when no contract, either express or implied, in fact exists.</p> <p>2. Assumpsit—when lies hy municipality against railroad to recover amount expended for repairs upon approaches to viaduct; when not. If a city is in possession and control of streets which form approaches to a railroad viaduct and repairs the same, it may recover the amount expended in assumpsit of the railroad company which is under obligation to keep such approaches in repair. If, however, such city has parted with its possession and control of such streets, in making such expenditures it is a mere volunteer and cannot recover of such railroad.</p> <p>3. Railroads—what duties of, cannot he waived hy municipality. A city cannot bind itself by a contract that it will not require a railroad company to maintain a viaduct in a street and approaches to such viaduct across the company’s tracks.</p> <p>4. Railroads—how duty of, to construct and maintain viaducts determined. Where the duty of a railroad company to construct viaducts and keep the same in repair is imposed by statute the statute must be looked to, to determine just what that duty is. If the statute only imposes the obligation of construction, then there is no duty to repair.</p> <p>5. Railroads1—duty of, to construct and maintain viaducts. Under the. common law as in force in this state there is a duty and obligation imposed upon railroads to construct and maintain crossings over highways, including viaducts and approaches, when the highway existed before the railroad at the place of crossing.</p> <p>6. Railroads—section 20, paragraph 5, chapter 114 construed. Held, that the above provision does not apply to railroad corporations not formed under the Railroad and Warehouse Act.</p> <p>7. Railroads—what determines necessity for construction and maintenance of viaducts. The passage of an ordinance requiring the construction and maintenance of a viaduct determines the existence of a necessity for the kind and character of viaduct and approaches according to the resolution or ordinance in the particular case. The burden to establish the reasonableness of such an ordinance is not upon the city, but it is incumbent upon a railroad, if it would avoid obedience to such an ordinance, to show that it is unreasonable and invalid.</p> <p>8. Streets—limit of power of municipality with respect to. The authorities of cities and villages have no power even by their affirmative acts, much .less by waiver or passive conduct, to surrender or grant away to railroads the public’s rights in streets or highways.</p> <p>9. Streets—when city ceases to have legal possession and control. After park commissioners have assumed jurisdiction with respect to a particular street, the city no longer, in contemplation of law, has legal possession and control thereof.</p> <p>10. Public policy—how may he ascertained. The public policy of the State may be determined by reference to its legislative enactments existing and in force, notwithstanding the same do not apply to the particular party involved in litigation before the court.</p> <p>11. Statutory law—effect given to legislative enactments. Statutory enactments cannot be enlarged by the court in their application beyond what is expressed and what must be included by necessary implication.</p> <p>12. Cities, villages and towns—provisions of act with reference to power of city council, etc., construed. The provisions of article 5 of the City and Village Act constitute grants of power to the city and in nowise impose duties upon railroad companies with reference to street crossings, viaducts or approaches.</p> <p>13. Cities, villages and towns—effect of adoption of act upon special charter of city of Chicago. The charter powers with respect to streets conferred upon the city of Chicago by its special charter became abrogated upon the adoption by such city of the general provisions of the City and Village Act.</p> <p>14. Definitions—“highway.” Except in special instances where the context indicates otherwise, “a street” is included in the term “highway” and a sidewalk is as much a part of the highway as is the roadway for driving or the street itself.</p> <p>15. Viaducts—police power of municipality with respect to. The city in the exercise of its police power may require a railroad company to repair a viaduct and the approaches thereto when the railroad was upon the ground which became the crossing before the highway existed.</p> <p>16. Ordinances—effect of. An ordinance passed by a city within its legislative power has the same force and effect within its corporate limits as a law passed by the legislature.</p>

<p>This case is controlled by the decision in Chicago v. P., C., C. & St. L. R. R. Co., ante, p. 403.</p>

<p>Tendee—what essential to effectiveness. A withdrawal of a tender destroys its effectiveness; to avail a tender must be kept good.</p>

<p>Verdict—when not disturbed. Where the evidence is conflicting a verdict will not be set aside as against the evidence unless clearly and manifestly so.</p>

<p>Master and servant—when instructions need not he given inexperienced servant. A master is not obliged to instruct an inexperienced servant as to dangers which are obvious or known to him.</p>

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

<p>1. Assignments—remedies of assignee of lease. The assignee of a lessor is entitled to the same remedies for the recovery of his rent as existed in favor of such lessor.</p> <p>2. AssiGNMENTS^-roftero sufficiently established. Held, that upon a motion to vacate a judgment entered by confession the assignment of the lease which contained the power was sufficiently established from the fact that such lease was attached to the declaration, showed the assignment on the back thereof and was read in evidence upon the hearing of such motion.</p> <p>3. Pbesumptions—what, aid judgments of courts of record. All presumptions aid and come to the support of judgments entered in open court by courts of record.</p> <p>4. Conveyances—character of lease. -A lease is not a deed poll but an indenture signed by both parties.</p> <p>5. Landlobd and tenant—estoppel to dispute title. A tenant cannot dispute his landlord’s title.</p> <p>6. Landlobd and tenant—what not eviction. The fact that after a lease of an apartment in a flat building is executed and possession taken thereunder by the lessee, persons in another portion of such building become stricken with small-pox, is no defense to an action by the lessor to recover rent, in the absence of a covenant in the lease against infectious diseases.</p> <p>7. Judgments—character of motion to set aside, entered by confession. A motion to set aside a judgment by confession rendered in open court in term time, appeals to the equitable jurisdiction of the court and will not be granted except for equitable reasons.</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>Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

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

<p>1. Verdict—when not excessive. Held, that a verdict for $10,000 rendered in ah action for personal injuries is not excessive where the injuries consisted in the loss of a leg and a resulting reduction by two-thirds in earning power.</p> <p>2. Statute of Limitations—lohat not new cause of action. A new cause of action is not set up by an amendment which consists in changing the description of a defendant from “Charles Henrotin, receiver,” to “Charles Henrotin, as receiver of” etc.</p> <p>3. Amendments and jeofails—when discretion properly exercised. An amendment which permits a discontinuance as to a corporate defendant joined with its receiver in an action of tort is prqper and in furtherance of justice where it is apparent that such corporate defendant could not be charged in the action.</p> <p>4. Tokts—liability of tort-feasors. A cause of action against two or more tort-feasors may be prosecuted against them jointly, or either joint tort-feasor may he sued separately. Each one is liable to the aggrieved party for all damage resulting from the tort chargeable to all.</p> <p>5. Instructions—accuracy required where case is close upon the facts. 'Where the case upon the facts is close and a verdict either way would be permitted to stand on reviw, the instructions given must satisfy a rule of special accuracy.</p> <p>6. Instructions—when upon ordinary care appropriate, notwithstanding issue of intoxication. Held, that instructions upon this subject containing the following language have no reference to a condition of intoxication, and are proper:</p> <p>“By ordinary care.on the part of plaintiff the law means such a degree, of care under the circumstances and in the situation in which the plaintiff was placed, so far as it may be shown from the evidence, as an ordinarily prudent man would exercise under like circumstances and in the same situation;” and “that the degree of care that the plaintiff was required to exercise for his own safety at and before the time of the accident in question, was ordinary care, and if the jury believes from a preponderance of the evidence in this case that the plaintiff, at the time of and before the accident in question, exercised that degree of care for his own safety that an ordinarily prudent person would have exercised under the same circumstances and conditions which the evidence in this case shows surrounded the plaintiS at and before the time of the accident in question, then you should find that the plaintiff at and before the time of the accident in question was in the exercise of ordinary care for his own safety.”</p> <p>7. Instructions—estoppel to complain of absence of. A party is estopped to complain of the failure of the trial judge to instruct the jury upon a particular issue if such party has not asked instructions upon such subject.</p> <p>8. Contributory nesliqence—effect of intoxication. A person may be in the exercise of ordinary care for his own safety notwithstanding he is intoxicated.</p>

<p>1. Suretyships—how contracts of construed. Contracts of guaranty must be construed as favorably to the creditor seeking their enforcement as other contracts in writing.</p> <p>2. Contracts—what words may be rejected as surplusage. Seld, that the words “to the extent of .................. dollars” in the contract of guaranty in question in this case, should be rejected as surplus-age.</p> <p>3. Statute oe Frauds—what contract to pay debt of another satisfies statute. A written guaranty of loans to be made in the future without specified limit as to amount, is unlimited as to amount, and satisfies the requirements of the Statute of Frauds.</p>

<p>Appeals and ebbobs—when finding of judge will he set aside and. final judgment entered. If a case has been tried before the court without a jury and the finding of the court upon the facts is manifestly contrary to the probative force of the evidence, such finding will be set aside on appeal and final judgment entered according to the effect of the evidence. **</p>

<p>Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding.</p>

<p>1. Verdict—when not disturbed as to findings of fact and as to amount of damages. The determination of the jury upon the question of negligence and upon the amount of the damages to be awarded will not be lightly disturbed on review, and never unless the court must say from a consideration of all the evidence that the finding of the jury is palpably the offspring of passion and prejudice or manifestly contrary to the preponderating force of the evidence.</p> <p>2. Vebdiot—effect of large remittitur. The entry of a large remittitur does not necessarily create a presumption of prejudice or passion entering into the verdict of the jury.</p> <p>3. Verdict—when not disturbed for excessiveness. A judgment rendered in an action for personal injuries will not in any event be reversed because of the excessiveness of the verdict unless it is apparent that the whole of the evidence of the plaintiff considered standing alone without reference to the countervailing proofs of the defendant, is insufficient to support the judgment for the amount for which it was ultimately entered.</p> <p>4. Evidence—when testimony of expert does not include subjective symptoms. Held, that the testimony of an expert with respect to a test made by reflexing the knees of the plaintiff, did not refer to subjective symptoms, and was therefore competent.</p> <p>5. Evidence—who may give opinion as to permanency of injury. A medical expert who has duly qualified and given the basis of his opinion is competent to testify as to whether or not in his opinion the injury in question is permanent.</p> <p>6. Appeals and ebbobs—when statutory damages not assessed upon affirmance. No statutory damages will be awarded on affirmance upon the ground that the appeal was ve-.atious and solely for delay, if there was in the case a question which the appellant was reasonably entitled to test.</p>

<p>Petition in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Richaed S. Tuthill, Judge, presiding.</p>

<p>1. Fraternal benefit societies—scope of charter need not be co-extensive with statute. It is entirely competent for a fraternal benefit society to restrict the object of its benevolence to fewer than the classes authorized by the enabling statute.</p> <p>2. Fraternal benefit societies—scope of powers of. A fraternal benefit society is limited to the purposes or object expressed in its charter, and this regardless of whether the incorporation is by special act of the legislature or under and in pursuance to the general law.</p> <p>3. Fraternal benefit societies—when by-laws void. A by-law which is contrary to the charter of a fraternal benefit society is unauthorized and void.</p> <p>4. Fraternal benefit societies—when heirs of member not entitled to proceeds of certificate. If the object or purpose of a fraternal benefit society in respect to deceased members is stated in the charter to be "to aid the families of deceased members,” a provision in a by-law of such society to the effect that in a certain contingency the mortuary benefit might be paid to the heirs of the deceased, even though not members of the family of the deceased, is void, and such heirs are in no event entitled to the proceeds of the certificate.</p>

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

<p>Appeals and errors—how misprisions of transcript maw Be corrected. Misprisions in the original transcript filed on appeal may be corrected by the filing of an additional transcript showing accurately the record as it stands in the trial court.</p>

<p>1. Ordinances—when providing for fine, etc., become effective. Ordinances which provide for the imposition of “any fine, penalty, imprisonment or forfeiture” do not take effect until ten days after publication.</p> <p>2. Judicial notice—of what not taken. The Appellate Court will not take judicial notice of municipal ordinances and will not guess at what an ordinance contained before it was amended or otherwise indulge in conjecture as to the state of the municipal code upon the subject in question at the time of the alleged violation of a penal provision.</p>

<p>1. Judicial notice—of what taken. The signature of a public officer to a document required to be signed by him in his official character will be judicially noticed. .</p> <p>2. Judicial notice—of what taken. The court will take judicial notice of the official capacity of the signer of an official document even though such official capacity is not indicated by the writing.</p> <p>3. Suretyship—right of surety to arrest principal. A surety who has entered into a recognizance for the appearance of one accused of crime is entitled to arrest such person at any place in the state; such surety may likewise, in manner as provided by statute, authorize the sheriff as his agent to arrest such principal.</p> <p>4. Recognisance—When forfeiture improper. Held,, that the forfeiture of the recognizance entered into in this case was improper in view of the fact that the sureties appeared to have caused the arrest of their principal and that such principal had been legally discharged under a writ of hateas corpus.</p>

<p>1. Jury triax—act of June 17, 190S, construed. This act which provides in substance that no person shall be imprisoned for nonpayment of a fine, etc., except upon a conviction by jury (unless the jury is waived in writing), strips the trial judge of the power, where a jury has not been waived, to give a peremptory instruction to find the defendant guilty in an action coming within the scope of the act.</p> <p>2. Evidence—when transcript not competent to establish prior conviction. Prior conviction for violating the statute prohibiting the practice of medicine without a license, cannot be shown by a transcript which fails to show jurisdiction of the person alleged to have been so convicted.</p> <p>3. Evidence—what competent as tending to show license to practice medicine. Held, that the particular evidence in this case was competent upon behalf of the defendant to show that previous to the alleged commission of the offense he was possessed of a license to practice. (The full court not concurring.)</p> <p>4. Statutory law—how penal statutes construed. A penal statute is to be strictly construed, but is not to be construed with such technicality as to defeat its object.</p>

<p>1. Trial—when remarks of counsel not improper. To refer to a particular failure to exercise ordinary care as “almost criminal” is not improper.</p> <p>2. Negligence—effect of concurring causes. If the defendant is guilty of negligence without which an accident would not have happened, the fact that it would not have happened except for another intervening cause which was an act of God, or which was a pure accident for which no negligence could he imputed to any one, does not relieve the negligent party from liability.</p> <p>3. Negligence—when question to he determined hy jury. Held, that it was for the jury to determine whether it was negligence for the defendant to allow a traveler used in connection with bridge construction to remain unfastened and unsecured on tracks and rails in a locality subject to storms.</p> <p>4. Negligence—what (toes not excuse. A custom does not excuse negligence.</p> <p>5. Instructions—approved form of, as to liability of master for acts of vice principal. The following instruction upon this subject approved:</p> <p>“The court instructs the jury that where a master confers authority upon one of his employes to take charge and control of a certain class of workmen in carrying on some particular ' branch of his business, such employe, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and is not a mere fellow-servant, and all the commands, if any, given by him, within the scope of his authority, are in law the commands of the master, and if he is guilty of a negligent and unskillful exercise of his power and authority over the men under his charge, it is in law the same as though the master itself was guilty of such conduct.”</p> <p>6. Verdict—when not excessive. Held, that a verdict for $6,000 rendered in an action for death caused by wrongful act is not excessive where it appeared that the plaintiff’s intestate was at the time of his death a young man who had fulfilled the promises of his boyhood, who had been temperate and industrious, was evidently ambitious and rising in his calling, and who had been the principal support of his mother and younger brothers.</p>

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

<p>Fixtures—what not. Held, that the evidence in the record did not justify the Appellate Court in reversing the judgment of the Municipal Court holding that pews, etc., were not fixtures.</p>

<p>Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding.</p>

<p>Ordinances—who not required to take out “junk shop” license. A wholesale dealer in old and new metals, rubber and rags, etc., is not required, under the ordinances of the city of Chicago, to take out a junk shop license.</p>

<p>1. Informations—when charging the obtaining of money by false pretenses insufficient. A conviction for obtaining money by false pretenses will not be sustained where the information contains no averment that the accused made any pretenses, representations or statements to the party from whom the money was so obtained or anyone else, which were either false or true.</p> <p>2. Amendments and jeofails—right to authorize amendment of information. It is within the discretion of the court to permit an information filed in the Criminal Court to be amended.</p>

<p>1. Fraterna!, benefit societies—what does not excuse non-payment of dues. The insanity of a member does not excuse non-payment of dues so as to keep alive a certificate issued by virtue of his membership.</p> <p>2. Fraternal benefit societies-—when suspension without notice for non-payment of dues valid. A suspension-without notice for nonpayment of dues is valid if authorized by the constitution and bylaws of the society; and provisions providing therefor, forming a part of the contract between the society and the member, are binding upon all parties and no officers of the society have power to waive the same.</p> <p>3. Fbatebnai. benefit societies—when reinstatement of suspended, member not effective. A suspension lawfully made for nonpayment of dues is not lifted by the mere payment of the delinquent dues where the constitution and by-laws of the order, forming a part of the contract, provide for a formal application for reinstatement, the payment of a re-instatement fee, and the action of the society upon such application, it appearing that the society proceeded strictly in accordance with its constitution and by-laws, made no promises and was guilty of no deceptive practices.</p> <p>4. Fbatebnai, benefit societies—what reasonable time for mailing monthly paper to members. If a fraternal benefit society publishes a monthly paper containing information to members, in the absence of a designated time when such paper should be sent to its members the law requires that the same shall be mailed within a reasonable time. Seld, that the fourth day of the month of the paper’s publication fulfilled such requirement of the law.</p>

<p>1. Vebdict—when not disturbed for excessiveness. The assessment of damages is primarily the burden and duty of the jury and unless a court of review can say from all the evidence in the record that the assessment of damages is so clearly in excess of the injuries proven as resulting from the negligence charged, the judgment entered thereon will not be disturbed.</p> <p>2. Vebdict—when remittitur will cure excessive verdict. Where a verdict is apparently excessive, still if a remittitur of a sufficient amount be made, satisfying the mind of the trial judge, and seemingly to the reviewing court a complete curative of the excessive finding, a judgment on the excessive verdict, less the sum remitted, will not be disturbed.</p> <p>3. Vebdict—presumption arising from large remittitur. While it is undoubtedly true that a remittitur of a large sum from a verdict may tend to raise a suspicion that passion or prejudice was present in the minds of the jury and controlled their finding, yet such suspicion is not conclusive that the element of prejudice or passion did in fact exist in the minds of the jury or influenced them in making their award of damages.</p> <p>4. Verdict—when not excessive. Held, that a verdict of $12,500, reduced from $20,000 by remittitur of $7,500, rendered in an action on the case for personal injuries, is not excessive where it appeared that the injuries of the plaintiff consisted in part of a tearing of the external lateral ligament of the knee which resulted in synovitis of the knee joint and a stiffness and limitation of motion in that joint; the developing within eight days of the accident of an inguinal hernia in both groins which twice became strangulated with danger of recurring strangulation.</p> <p>5. Evidence—when, as to extent of injury, not mere speculation. Held, that where a hernia has been shown with a resulting strangulation upon several occasions, it is not incompetent as mere speculation to introduce evidence tending to show the likelihood of future strangulation.</p> <p>6. Instructions—when modification of, as to credibility of plaintiff, not improper. Held, that it was not error for the trial judge to insert in an instruction upon the subject of the credit to be given to the testimony of the plaintiff, the following language: “The jury have no right to discredit his testimony from caprice or merely because he is the plaintiff.”</p>

<p>This case is controlled by the decision in Cerny v. Jednota Cesky Dam, ante, p. 518.</p>

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

<p>Prosecution for assault and battery. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.</p>

<p>Action of debt. Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>1. Inns and inn-keepers—what does not establish status as guest. Held, that the evidence in this case failed to show the relation of guest and inn-keeper but, upon the other hand, established the status of the plaintiff as a lodger.</p> <p>2. Bailments—obligation of lodging house Keeper. A lodging house keeper is only held to the use of ordinary care in relation to property of a lodger left in her room during her absence from the lodging house.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.</p>

<p>1. IsrsTJEANCE—incontestable clause construed. A contract of Insurance which contains an incontestable clause as follows:</p> <p>“This contract shall be incontestable after two years from the date hereof, except for non-payment of dues, assessments, fines, or premiums, engaging in prohibited occupations, or becoming habitually addicted to the excessive use of intoxicating liquors, opium or other injurious drugs, or substances, contrary to the laws, rules and regulations of the association, and the agreements of the memcannot be defendant against, after the lapse of two years from its date, by evidence which tends to show that the insured met his death while in the act of committing a breach of the peace.</p> <p>2. • Insurance—when addiction to excessive use of intoxicants not defense under particular state of pleadings. A defense that the insured became addicted to the excessive use of intoxicating liquors in violation of a condition subsequent contained in the contract of insurance, is not available in the absence of a special plea.</p> <p>3. Insurance—when compliance with conditions subsequent need not be shown. It is not incumbent upon the plaintiff in order to recover upon an insurance contract to show, in the first instance, that the deceased complied with a condition subsequent contained in the contract, having reference to the excessive use of intoxicating liquors.</p> <p>4. Pleading—object of special plea. The object of a special plea is to give the plaintiff notice of the special defenses relied upon by the defendant which relieves it from the obligation to pay.</p>

<p>1. Mandamus—what essential to award of writ. In order to entitle a party to a writ of mandamus, he must show a clear right to the relief sought; if the right be doubtful the writ will not be awarded.</p> <p>2. Mandamus—when not awarded against city to supply village with water. Mandamus should not be awarded to compel a city to supply water to a village within its territorial limits notwithstanding the abstract obligation to supply such water exists, if it appears that such village did not possess a system of waterworks and is not in a position to receive such water and the same if supplied could not be utilized.</p> <p>3. Mandamus—effect of resisting judgment upon petition and answer. A respondent by resisting a motion of the petitioner for a judgment upon a petition and answer does not thereby submit the cause for final determination upon such petition and answer.</p> <p>4. Mandamus—proper form of judgment. A judgment in mandamus is like a judgment in any other proceeding at law; it should be clear and complete in itself. “The respondent should not be required to look beyond the writ to ascertain the precise acts which he is required to perform.”</p> <p>5. Mandamus—when judgment in informal. A judgment in mandamus which directs a city to supply water to a village within its territorial limits when such village shall notify such city in writing that it is ready to receive the same, is fatally bad.</p> <p>6. Mandamus—when judgment in informal. A judgment in mandamus is erroneous which is provided to become operative only when the clerk of the court shall have passed upon the sufficiency of a notice and the service thereof.</p>