Volume 147 — Illinois Appellate Court Reports

<p>Assumpsit. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.</p>

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

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

<p>Landlord and tenant—when latter cannot avoid forfeiture. Wliere, by the terms of a lease, notice and demand of rent due are waived, the lessor may without notice or demand declare the term ended and by such declaration, notice thereof and notice to quit to the lessee, the term of the lease is ended and the lessee cannot thereafter by tendering the rent avoid the forfeiture.</p>

<p>Toets—when private corporation not liable for acts of special policeman. Illegal acts by a special police officer consisting of an assault, etc., will not be legally attributed to. a private corporation paying the salary of such officer where it does not appear that such officer was employed in any other capacity than as a policeman, or that such corporation had or exercised any control oyer him as a policeman or otherwise, or that such officer was charged with or had ever performed while in the service of such corporation duties other than those pertaining to the office of a policeman, or that in doing what he did he. was enforcing any regulation or by-law of such corporation or any order, of any of its officers or agents; it appearing that the illegal acts complained of were committed without the knowledge or direction of any officer or agent of such corporation.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.</p>

<p>Objections to report of administratrix. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, 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>1. Contract—by what law governed. Held, that the contract in question in this case was an Illinois and not a Wisconsin contract.</p> <p>2. Contract—effect of' change by mutual consent. An agreement when changed hy the mutual consent of the parties becomes a new contract.</p> <p>3. Common carriers—extent of obligation of. A common carrier hy the law of Illinois is an insurer of goods entrusted to it and accountable for the loss thereof, or any damage thereto, unless shown to have happened hy the act of God or the public enemy or to have been occasioned hy an act of the shipper or someone in his employ; the burden of proving exoneration is upon the carrier. 'This rule of liability, however, may he subject to the exception of non-applicability to live stock and perishable goods; the existence of this exception, however, is not determined by the court in this cáse.</p> <p>4. Common carriers—liability of initial carrier for acts of connecting carriers. The initial carrier is liable for the acts of all succeeding carriers for the entire route.</p> <p>5. Appeals and errors—effect given to statement of facts by Municipal Court. The Appellate Court in considering a statement of facts made by the Municipal Court for purposes of review presumes that the facts stated are material and will give effect to such facts accordingly.</p>

<p>1. Judgments—5y what law authentication governed. The question of the proper and sufficient certification of an official record is not a question controlled by the common law so that an authority thereupon can be found and cited from any state, but the question is controlled by the law of the state “from whence the record comes.”</p> <p>2. Judgments—what essential to defeat foreign judgment sued upon in this state. In or’der to show that the judgment of a sister state sued upon in this state is void under the decisions of the state of origin, all the facts essential to bring such foreign judgment within such decisions must be shown by the transcript or transcripts of the record of such judgment.</p>

<p>Appeals and errors—When freehold involved. If a freehold estate is directly in issue and the result of the cause must be that one party will gain and the other lose a freehold estate, a freehold is involved for purposes of appeal and the Appellate Court is without jurisdiction.</p>

<p>Trespass. Appeal from the Circuit Court of Hardin county; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Medicine—when practicing without license not established. Held, that the defendant, a licensed midwife, was not shown to have practiced medicine without a license in violation of the statute. Evidence that a tablet of some kind was given—-the exact kind not being shown—is not sufficient to establish that the defendant had “used any drugs or medicine.”</p>

<p>Vebdict—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.</p>

<p>Bill in chancery. Error to the Circuit Court of Union county; the Hon. W. W. Duncan, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of St. Clair county; the Hon. B. R. Bubboughs, Judge, presiding.</p>

<p>Appeals and errors—when no questions preserved for review. In an action for personal injuries where a peremptory instruction has been given for the defendant, held, that under the assignment of errors in this case, nothing is preserved for review where it did not appear from the record that a motion for a new trial was made or that an exception was preserved to the court’s ruling in allowing the motion for the peremptory instruction or to the rendering of judgment.</p>

<p>1. Master and servant—who are fellow-servants. Two servants of the same master habitually associated, who each had his understood part in a joint operation, are fellow-servants, and an injury to one of them resulting from the carelessness of the other in performing such joint work cannot be made the basis of a recovery against the master.</p> <p>2. Master and servant—when doctrine of assumed rislc applies. A servant cannot be heard to say that he did not know and appreciate the danger of a simple device the danger of which was obvious.</p>

<p>1. Appeals and ebrobs—when objection not considered. An objection made in the trial court will not be considered on review if not shown by the abstract.</p> <p>2. Verdict—when not disturbed. A verdict not manifestly. against the weight of the evidence will not be set aside on review in the absence of errors of.law.</p> <p>3. Measure op damages—for injury to real property. In an action for a permanent injury to real property by a permanent improvement legally erected, the measure of damages is the difference in the market value affected by such improvement.</p>

<p>Assumpsit. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Assault—when conviction illegal. One charged with “assault with a deadly weapon with intent to inflict bodily injury” cannot legally be convicted of an assault and battery, as the two offenses are separate and distinct.</p>

<p>Action in case for personal injuries. "Appeal from the Circuit Court of Madison county; the Hon. Charles T. Moobe, Judge, presiding.</p>

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

<p>Attachment. Appeal from the City Court of Bast St. Louis; the Hon. W. J. N. Moyebs, Judge, presiding.</p>

<p>Action in case. Appeal from the Circuit Court of Marion county; the Hon. Aebbrt M. Rose, Judge, presiding.</p>

<p>Action on the case for libel. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>1. Instructions—approved form as to proximate cause. An instruction upon this subject as follows, approved:</p> <p>“It is not sufficient to entitle the plaintiff to recover in this case, to show a negligent breach of duty on the part of the defendant, but it devolves upon the plaintiff to show further, that such breach of duty was the proximate or immediate or real cause of the injury to the plaintiff’s property; that in no case can a recovery be had for a negligent breach of duty, unless the evidence shows that such negligent breach of duty was the proximate or immediate cause of the injury occurring.”</p> <p>2. Instructions—when estoppel to complain arises. A party cannot complain of an instruction identical in language with one which has been given at his own instance.</p>

<p>Objections to administrator’s report. Appeal from the Circuit Court of Monroe county; the Hon. Chables T. Moose, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Union county; the Hon. William N. Butlek, Judge, presiding.</p>

<p>1. Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.</p> <p>2. Railroads—duty to construct culverts. The statutory duty of a railroad company in constructing its road-bed to provide culverts and sluices necessary for natural drainage is a continuing duty imposed by law upon the grantees or the lessees of the original builder, and prior notice and complaint of defective construction is not required as foundation for an action.</p> <p>3. Evidence—when use of memorandum will not reverse. Even though the court may have improperly permitted a witness to use a memorandum in testifying to questions of damage, a reversal will not be ordered where no prejudice appears to have resulted.</p>

<p>1. Master and servant—when relation not established. Held, that the evidence in this case did not establish a contract of employment and that the relation of master and servant was not shown to have existed at the time of the injury complained of.</p> <p>2. Master and servant—when unlawful employment of minor does not authorize recovery. In order that an injury sustained by a minor claimed to have been unlawfully employed at extra-hazardous work may be the basis of a recovery it must appear that such Injury was occasioned by such unlawful employment.</p>

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

<p>1. Drainage—what does not disqualify appointment as commissioner. A person who is a landowner of the district is not thereby disqualified from appointment as a commissioner.</p> <p>2. Drainage—what does not create vacancy in position of commissioner. The failure of persons appointed as commissioners to give bond as required by statute before collecting and receiving money for the purposes of the district, does not ipso facto create vacancies.</p>

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

<p>Action commenced before justice of the peace. 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 Madison county; the Hon. B. R. Btjreoughs, Judge, presiding.</p>

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

<p>1. Verdict—when set aside. A verdict manifestly against the weight of the evidence will be set aside on review.</p> <p>2. Triad—when remarles of counsel ground for reversal. If the remarks of counsel in argument are improper and result in prejudice to the other party, a new trial should be awarded.</p>

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

<p>1. Railboads—obligation to construct farm crossings. Unless the land upon the two sides of the track is used for agricultural purposes, .the railroad company is not required to build a crossing; if, however, such land is so used the duty of such company is performed when it provides a crossing at such place as will best serve the purpose, the interest of all parties being duly considered.</p> <p>2. Mandamus—what essential to maintenance. In order to entitle the petitioner to the issuance of the writ, a clear right must he established.</p>

<p>1. Conspiracy—when indictment sufficient. An allegation that the defendant and one Samuels “did conspire and agree together” is' sufficiently technical and certain to charge the crime of conspiracy.</p> <p>2. Conspiracy—what evidence competent. Evidence tending to show the relation of the parties, the purpose of the combination, the preliminary steps taken to effect that purpose, even before the object to he effected is certainly ascertained, is within the scope of Investigation to establish a conspiracy.</p> <p>3. Conspiracy—what evidence competent. Once there have been shown facts evidencing the existence of a conspiracy, all the acts and conversations of any one co-conspirator are admissible against all.</p> <p>4. Criminal law—when election as to indictments properly not required. It is not error to refuse to compel the state’s attorney to elect under which of two pending indictments he will proceed where a sufficiently specific bill of particulars has been supplied to the defense.</p> <p>5. Continuance—when properly denied in criminal case. A continuance asked by the defendant because of the absence of a material witness is not improperly denied where the expected evidence of such witness is admitted.</p> <p>6. Tbiae—when arguments of counsel improper. It is improper for the state’s attorney urging a conviction to disclose the property situation of the parties, but held, in this case, that the impropriety was not ground for reversal.</p>

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

<p>Action commenced before justice of the peace. Error to the Circuit Court of Randolph county; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Vebdict—when set aside. A verdict manifestly against the weight of the evidence will he set aside on review.</p>

<p>Negotiable Instruments—what evidence incompetent respecting manner of payment. In an action upon a promissory note any verbal agreements between the parties made prior to the giving of the note are inadmissible in evidence to contradict or vary the terms of the note.</p>

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

<p>Contested claim in court of probate. Appeal from the Circuit Court of Washington county; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Circuit Court of Madison county; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>Statute of feauds—when agreement not within one-year provision. Held, that the contract in this case was one of that class where the time begins to run from the date the agreement is made and not from the date when performance begins, and that it was not within the statute.</p>

<p>Assumpsit. Appeal from the County Court of Williamson county; the Hon. W. F. Slater, Judge, presiding.</p>

<p>Dbam-shop Act—what not essential to recover for loss of support. In order to recover under the Dram-shop Act for loss of support, the intoxication need not be shown to be the immediate, direct or proximate cause; it is sufficient if it be the cause, and it is “no matter whether the jury would consider it a proximate or a remote cause.”</p>

<p>Action in case. Appeal from the Circuit Court of Randolph county; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>Appeals atto ebbobs—when erroneous assignment will not he considered. Unless the brief and argument conform to the rules and practice the Appellate Court will not consider assignments of error.</p>

<p>Appeals and eeeobs—when reversal may he pro forma. If the appellee does not file a brief the Appellate Court of the Fourth District may order a reversal pro forma.</p>

<p>1. Dbam-shop Act—what evidence competent in prosecution for selling liquor without license. Evidence which tends to establish proprietorship at the time of the sales proved is competent.</p> <p>2. New trial—when newly discovered evidence does not justify. Newly discovered evidence, hearsay or cumulative in character, will not warrant the granting of a new trial.</p>

<p>1. Appeals and errors—when objection to evidence not sufficient. Objections to evidence to be available must be specific.</p> <p>2. Instructions—when error to ignore or insufficiently to refer to defense of assumed risk. An instruction which undertakes to sum up the whole case and state all the requisites to a recovery is erroneous which ignores the defense of assumed risk which exists in the case or which refers to such defense in a meaningless way.</p> <p>3. Instructions—when erroneous modification cannot be complained of. If an instruction as asked was improper, an erroneous modification cannot be complained of by the party asking the instruction.</p> <p>4. Master and servant—when instruction stating duty of railroad company to employes erroneous. Held, that it was error to give an instruction upon this, subject which substantially rendered the railroad company an insurer, and likewise that it was error to modify certain instructions which correctly stated the duty of such company, by inserting the following clauses: “and was reasonably safe for employes;” and “unless it was necessary for the safety of its employes.”</p> <p>5. Master and servant—when instruction upon assumed risk defective. An instruction upon this subject is defective if it ignores the element of negligence upon the part of the master and does not state any of the requisites necessary to bring the case under the rule which requires that in order that a servant may be held to have assumed the risk resulting from his master’s negligence it must appear that the risk was obvious or known to the servant.</p> <p>6. Trial—what improper in argument. It is improper for an attorney in argument to tell the jury that the instructions are prepared by the attorneys.</p>

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

<p>Master and servant—when latter cannot recover There can be no recovery for personal injuries sustained by a servant as the result of the servant’s failure to obey the proper orders and directions of the master with respect to the servant’s safety.</p>

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

<p>Pleading—when replication in chancery deemed waived. Where the case has been heard “upon pleadings, evidence and proofs taken by the master in chancery, and upon depositions of witnesses and oral testimony,” the filing of a replication will be deemed to have been waived.</p>

<p>1. Evidence—what competent to prove that certain territory was anti-saloon. Held, that the certificate of the county clerk showing the result of the submission of the question as to whether the particular territory should become anti-saloon was competent to prove the fact that such territory was anti-saloon.</p> <p>2. Evidence—how clerk’s certificate of result of election questioned. It is only in a direct contest that the correctness of an election result can be questioned and the certificate of the county clerk showing the result of such election cannot be impeached in a collateral proceeding.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Bueeoughs, Judge, presiding. Heard in this court at the August term, 1908.

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Jasper county; the Hon. Albert M. Rose, Judge, presiding.</p>

<p>Trover. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>1. Appeals and errors—effect of absence of propositions of law. In an action upon a contract if no propositions of law have been presented no questions of law are involved on appeal except those that pertain to the construction of the contract upon which the plaintiff’s claim was based and to rulings of the court with respect to evidence.</p> <p>2. Judgment—effect of uncertainty. If there is uncertainty as to the finding of the court and a variance between the finding and the judgment, a reversal will be ordered.</p>

<p>Bill ip chancery. Appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. Charles T. Moobe, 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>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. Negligence—substitution of gasolene for coal oil. It is negligence for an agent of a dealer to deliver gasolene upon an order for coal oil.</p> <p>2. Appeals and errors-—what not subject to review. Admission in evidence of a list of articles lost in a fire is not ground for reversal if not copied into the bill of exceptions nor shown thereby to have actually gone to the jury.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. J. E. Dunnegan, Judge, presiding.</p>

<p>1. Statutory law—rule of construction. A provision or exception in a law relates only to the paragraph or distinct portion of the enactment which immediately preceded it unless a different construction be necessary to carry into effect the evident intention of the legislature in passing it, as such intention appears from the whole act.</p> <p>2. ' Counties—paragraph 5 of section 26 of act construed. Paragraph 5 of section 26 of chapter 34, which refers to the making out, posting and publication of an annual report, construed to require the making out and posting regardless of expense but to authorize the non-publication of such report if the expense of so doing would be unreasonable.</p>

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

<p>Assumpsit. Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding.</p>

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

<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>

<p>Distress for rent. Appeal from the Circuit Court of Fayette county; the Hon. Tkuman E. Ames, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Burroughs, 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. Instructions—when upon preponderance of evidence erroneous. It is not correct to state as an inflexible rule having no exceptions that the preponderance of evidence in a cause is not alone determined by the number of witnesses testifying to a particular fact or state of facts, as conditions might exist under which the number of witnesses testifying on one side or the other might properly be the controlling influence in determining where the preponderance or greater weight of the evidence lies.</p> <p>2. Instructions—when upon preponderance of evidence erroneous. An instruction upon this subject is erroneous which undertakes to tell the jury what they shall take into consideration in determining upon which side the preponderance of the evidence lies, excluding altogether the question of the number of witnesses testifying on the respective sides.</p> <p>3. Instructions—when upon credibility of witnesses erroneous. An instruction which authorizes the jury to disregard the testimony of witnesses who have knowingly testified untruthfully is erroneous if it does not limit the untruthfulness of • such witnesses to facts or questions material to the issue.</p> <p>4. Instructions—when upon contributory negligence erroneous. An instruction is erroneous which authorizes a recovery if plaintiff’s negligence did not “materially” contribute to the injury.</p>

<p>Quo warranto. Appeal from the Circuit Court of Richland county; the Hon. J. R. Creighton, Judge, presiding.</p>

<p>Forcible entry and detainer. Appeal from the Circuit Court of ■Hardin county; the Hon. Exoch E. Newlih, Judge, presiding.</p>

<p>1. Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review.</p> <p>2. Appeals and ebbobs—when overruling demurrer not subject to review. The action of the court in overruling a demurrer to a declaration is not subject to review where the demurrant does not abide by his demurrer but pleads over.</p> <p>3. Dram-shops—what does not affect amount of widow’s recovery. In an action to recover damages for death brought under the Dram-shop Act, the right of the widow to recover and the amount of her recovery cannot he affected by the fact that her husband at the time of his death had a policy of insurance in force upon his life payable to her in the event of his death.</p>

<p>1. Assignments—when wages do not pass. Held, that the evidence in this case did not show a valid assignment of a minor’s wages who had been employed in a coal mine.</p> <p>2. Pabent and child—what does not show manumission. Held, that the evidence in this case did not show the manumission of the minor so as to authorize full control by him of wages earned.</p>

<p>Appeals akd erbors—what not final judgment. An order sustaining a demurrer to an information not accompanied by a dismissal of the action is not final and therefore not subject to appeal or review.</p>

<p>Action in case for death caused' by alleged wrongful act. Appeal from the City Court of Bast 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>1. Appeals and errors—requirements of transcript. The transcript presented and filed on review must be sufficiently full so as to show the action or actions of the court with respect to which assignments of error have been made.</p> <p>2. Publication—when service insufficient. If there is a variance between the .petition and the affidavit for publication, the former proceeding upon the theory of residence and the latter upon that of non-residence in the state, service by publication is insufficient.</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>1. Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review.</p> <p>2. Instructions—when complaint of, given in Municipal Court, cannot be urged on review. An instruction given in a trial in the Municipal Court of Chicago, assigned on appeal as erroneous, will not he reviewed in the absence of a specific objection having been made thereto, prior to the retirement of the jury to which it was given.</p>

<p>Appeals and errors—when finding of court reversed. A finding by the court manifestly and palpably against the preponderance of the evidence will be reversed on review.</p>

<p>1. Damages—duty of injured party to minimize. It is the duty of a party injured by breach of contract or tort to make reasonable efforts to avoid damages therefrom.</p> <p>2. Measure of damages—what not, in action for failure to repaint automobile. In an action for breach of contract for a failure to repaint an automobile as ordered, the rental value of another car during the period that the owner of such automobile would be deprived of its use is not a proper part of the measure of damages.</p>

<p>1. Verdicts—when not disturbed. A verdict not manifestly against the preponderance of the evidence will not he set aside on review.</p> <p>2. Evidence—when proof of custom, incompetent. Held, in this case, that it was not competent to prove a custom that when the owner of machinery to he moved sends along a machinist or helping engineer, the men furnished by the movers of the machinery are subject to his orders, etc.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.</p>

<p>1. Practice—what question raised by motion for peremptory instruction. Upon a motion for a peremptory instruction the .real question is not whether a new trial will have to be granted or not but whether there is any evidence on the part of the plaintiff tending to support each and every material allegation of the declaration.</p> <p>2. Master and servant—obligation with respect to machinery. The law does not say that a master is required to furnish reasonably safe machinery and appliances but limits his obligation to the exercise of reasonable care to provide reasonably safe appliances.</p> <p>3. Master and servant—who fellow-servants. Held, under the evidence that a general helper and a servant who cut, spliced and replaced a belt on a pulley were fellow-servants.</p> <p>4. Negligence—arrangement of pulleys. Held, in this case, that in the absence of any evidence that the arrangement of pulleys on a shaft was unusual or out of the ordinary structure and adjustment of such. appliances, the jury would not have been at liberty to infer that the master was guilty of negligence or could have reasonably anticipated and been held obliged to guard against the accident in question.</p>

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

<p>1. Contracts—effect of provision of forfeiture. A contract of investment which provides in certain contingencies for a forfeiture of money paid in is not tor that reason void.</p> <p>2. Contracts—what not gambling. Held, that the particular contracts in question in this case involving the purchase of real estate pursuant to a certain co-operative certificate plan which made the chances of those investing unequal, did not constitute gambling contracts and were not therefore void.</p> <p>3. Lotteries—what not. Held, that a particular plan having in view the acquisition of real estate by certificate holders, did not constitute a lottery within the meaning of the statute of this state.</p>

<p>Damages—when unsatisfactory evidence will reverse. If the evidence in the'cause which tends to support the verdict upon the question of damages is unsatisfactory, a reversal will be ordered.</p>

<p>1. Replevin—what presumed in suit upon bond. In an action upon a replevin bond the jurisdiction of the court to make disposition of the replevin suit will be presumed in the absence of a showing to the contrary.</p> <p>2. Replevin—character of action upon bond. An action upon a replevin bond for failure to return pursuant to the writ retorno, is one sounding in tort.</p> <p>3. Replevin—what defense to action upon bond. In an action upon a replevin bond (the replevin action having been dismissed for want of prosecution), the merits of the replevin action may be shown to defeat the recovery of more than nominal damages.</p>

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

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

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Oscab M. Tobbison, Judge, presiding.</p>

<p>1. False pretenses'—when information in prosecution for, insufficient. An information in a prosecution for obtaining property by false pretenses is fatally defective if it does not charge that the false pretenses were made “with intent to cheat and defraud.”</p> <p>2. Pleading—when intent essential to he alleged. An indictment or information is sufficient under the laws of this state where it states the offense in the language of the statute, but where the intent is mentioned in the statute as an element of the offense it ought to be alleged.</p>

<p>This case is controlled by the decision in the case of People v. Cohen, ante, p. 393.</p>

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

<p>1. Contbibutoby negligence—when person using public street guilty of. Held, under the evidence in this case, that the plaintiff in choosing to adopt the course of travel which he did, knowing its dangers, was guilty of contributory negligence which barred a recovery.</p> <p>2. Negligence—obligation of municipality to erect barriers. A city is not obligated in every case to erect suitable railings where there are dangerous places upon its streets; the question whether such an obligation should be performed is in each case to be determined by an ascertainment as to whether such barriers are necessary to make the street reasonably safe and convenient for travelers who are themselves in the exercise of due care.</p>

<p>1. Evidence—burden of proof to show payment. A party who by way of defense to an action seeks to obtain a credit for a particular item is bound to assume and prove by a preponderance of the evidence that he is entitled to such credit.</p> <p>2. Contracts—when contractor not bound by specifications. If an architect having charge of the construction of a building permits sets of specifications to go out of his office to be used for the purpose of making estimates which differ from other specifications claimed as the originals, the contractor may rely upon and recover upon the basis of the specifications employed by him in making his estimates.</p>

<p>Cobpobatioiís—what not doing business in this state. Meld, that a corporation of another state which did not maintain an office in this state and which sold only upon written orders sent to its place of business in such other state, was not doing business in this state within the meaning of the statute regulating foreign corporations.</p>

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

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

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

<p>1. Mechanic's liens—when wife bound by husband. If with knowledge of the contract and the delivery of materials thereunder, a wife makes no protest against the acts of her husband, a lien may be enforced against her property with respect to which such contract has been made and such materials delivered.</p> <p>2. Mechanic’s liens—right of subcontractor to recover in action at law of owner notwithstanding breach by contractor. Under the act of 1903, a subcontractor in an action at law brought against the owner and contractor may recover against such owner, notwithstanding abandonment and non-performance by the contractor, to such an extent that his claim when added to that of others in like situation will not exceed the sum stipulated in the original contract between the owner and contractor.</p> <p>3. Constitutional law—when questions waived. The right to raise the question of the constitutionality of an act is waived by taking an appeal to the Appellate instead of to the Supreme Court.</p>

<p>1. Contracts—when lack mutuality. A contract between two parties, executed by an agent on behalf of one of the parties, which stipulates that it shall not become effective without the approval of the principal, lacks mutuality until so approved, and if not approved by such principal before rescission by the other party, is void.</p> <p>2. Statute of frauds—-when contract for sale of real estate within. A contract providing for the sale of real estate, executed upon behalf of the owner thereof by an agent not authorized in writing so to do, which contract contains a provision that it shall not become effective until approved by such owner, is within the Statute of Frauds and before it can become a binding obligation upon the purchaser, it must be approved in writing by the owner.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.</p>

<p>1. Attorney and client—limit of former’s power to settle. An attorney may not compromise his client’s claim or receive anything but money in payment without his client’s assent.</p> <p>2. Attorney and client—what not conversion by former. An attorney who is given a note for collection and undertakes to settle the same without his client’s consent by the taking of some cash and a series of notes, and who offers the proceeds of the settlement to his client, is not guilty of a conversion of the original obligation. But the client in such case has the right to repudiate the transaction and seek to enforce the original obligation, even though the signature thereto may have been mutilated.</p>

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

<p>Action commenced before justice of the peace. Error to the Superior Court of Cook county; the Hon. G. W. Patton, Judge, presiding.</p>

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

<p>1. Pbincipax and agent—what not breach of duty by latter. An employe of a corporation wbo purchases the business and materials of a rival concern just prior to the expiration of his term of service for the purpose of entering into business for himself at the end of such term of service, is not guilty of a breach of duty.</p> <p>2. Sales—when recovery for, made by agent to principal sustained. If an agent just prior to the expiration of his term of service purchases material, etc, of a rival concern for the purpose of going into business himself at the end of his term, an agreement to continue his service after the expiration of his contract, in consideration of which the principal is to take over, use and pay for, as its business required, the material so' purchased by the agent, is valid, and the market value of such of the materials in question as are used by the principal may be recovered by the agent in an appropriate action.</p>

<p>1. Landlord and tenant—what competent to rebut defense of eviction. A resolution by a corporate tenant which tends to show its desire to relinquish the demised premises, is competent upon the question of the good faith of the defense of eviction.</p> <p>2. Landlord and tenant—how question of eviction determined. Whether there has been an eviction, in any ease, depends on the intention of the landlord, as shown by the evidence; held, in this case, that the levying of a distress warrant and the locking of the door of the demised premises did not, under the- evidence, constitute an eviction which would défeat the recovery of rent.</p>

<p>1. Contributory negligence—when minors may be guilty of. Children between the age of 13 and 14 years are charged with the duty of exercising ordinary care and if they fail to do so and their negligence contributes to the injuries complained of, recoveries will be barred.</p> <p>2. Contributory negligence—when minor guilty of. Held, that the plaintiff in this case, a minor between the age of 13 and 14 years, was guilty of such contributory negligence as barred a recovery, it appearing that she was injured while using a “maze,” located in a public amusement park, as a playground.</p> <p>3. Negligence—when doctrine res ipsa loquitur does not apply. Held, that the doctrine of res ipsa loquitur did not apply in this case in which a child, between the ages of 13 and 14 years, while in an amusement park was injured by falling glass in what was called a “maze.”</p> <p>4. Negligence—when owner not liable for acts of concessioner. The owner of an amusement park who rents concessions therein is not liable for any acts of negligence by the concessioner where it appears that such concessioner was in the exclusive possession and control of the particular portion of the park in question.</p>

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

<p>Petition for sale of real estate. Appeal from the Probate Court of Cook County; the Hon. Charles S. Cutting, Judge, presiding.</p>

<p>Criminal law—effect given to evidence of good character. In a prosecution for a criminal offense, where a serious douht arises under the evidence as to the guilt of the accused, evidence of good, character will prevail.</p>

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

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

<p>Accord and satisfaction—when evidence tends to establish. A check which does not contain a notation that it is in full may, upon being cashed, constitute an accord and satisfaction if it appears from the evidence that the conduct of the parties shows that it was tendered and received in full.</p>

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

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

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

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

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

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

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

<p>1. Mandamus—what essential to award of writ. To entitle a relator to the award of the writ of mandamus, it is incumbent upon him to state in his petition every necessary and essential fact which prima facie at least shows that he is entitled to the writ.</p> <p>2. Mandamus—what essential averment in petition to compel restoration to police force. A petition filed for a writ of mandamus to compel civil service commissioners to restore the relator to the office of a patrolman must allege the existence of the office of patrolman and that the same was created either by statute or by an ordinance legally enacted by the municipality.</p> <p>3. Mandamus—when laches bars issuance of writ. A delay of ten months unexplained between a discharge as patrolman and an application by mandamus for restoration, will bar the issuance of the writ.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.</p>

<p>1. Evidence—when of medical expert incompetent. A medical expert who was called not for purposes of treatment but for qualification, when asked to testify should not he permitted to answer a question as follows: “Can he (plaintiff) flex his fingers to his palm?”</p> <p>2. Instructions—when as to preponderance of evidence erroneous. An instruction is erroneous which directs the jury to find “that the preponderance of the evidence is on the side sustained by a certain class of witnesses, namely, a class which in their judgment is the more intelligent and better informed.”</p>

<p>Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Hokobb, Judge, presiding.</p>

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

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

<p>1. Capias ad satisfaciendum—when discharge from arrest will not he ordered. A defendant arrested under a capias ad satisfar ciendum will not be discharged if it appears that the judgment upon which such writ was issued was rendered in an action of which malice was the gist. Malice is the gist of an action to recover for the wrongful, wilful and fraudulent conversion of the money of the plaintiff by the defendant.</p> <p>2. Capias ad satisfaciendum—appropriate order upon denial of application for discharge. Where the petitioner seeking a discharge from an arrest made under a writ of capias ad satisfaciendum was released upon bail pending the hearing of his petition, the appropriate order upon the dismissal of his petition is to remand such petitioner to the custody of the sheriff.</p>

<p>1. Reversal—when not awarded upon confession of errors assigned. If an appellee assigns cross-errors with respect to rulings which he has not saved for review, a confession of such cross-errors by the appellant will not result in reversal.</p> <p>2. Pleading—what counts may he joined. Counts in case and counts in trespass may, under the Illinois Practice Act, be joined, though they could not at common law.</p> <p>3. Verdict—when excessive. A verdict for $2,500 rendered in an action for assault is excessive where it appeared that the defendant struck the plaintiff on the head with a bottle inflicting a wound which left a scar but which was attended with no serious consequences.</p>

<p>Slander and libel—when “thief” not actionable. The words, “You are a thief,” are not actionable unless the defendant in speaking them intended to impute crime to the defendant. This intention will be presumed from the use of the words, if not explained; all of the conversation, the facts and circumstances attending it, are to be weighed and considered in determining whether in speaking those words the defendant intended to charge the plaintiff with a crime; and such words are not actionable where the only just conclusion that can be drawn from all the evidence is that the defendant did not intend to impute to, or charge the plaintiff with larceny, embezzlement or any other crime.</p>

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

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