Volume 149 — Illinois Appellate Court Reports

<p>1. Executions—against whom writs should run. An execution should follow the judgment and must on its face appear to be against all the defendants against whom the judgment is entered, notwithstanding from the death or some other cause no levy can be made on the property of some.</p> <p>2. Jurisdiction—power of court to set aside order after term of entry. It is not competent to hear evidence or affidavits made subsequent to a ruling in order to modify a ruling made at a previous term, except in the matter of setting aside a default, and that is in the discretion of the court.</p> <p>3. Jurisdiction—power of court to set aside order after term of entry. The court may change a ruling upon a pleading at any time before the final judgment, but not upon any order the determination of which depends upon a hearing of independent facts.</p> <p>4. Judgment—when form of, allowing leave to plead, proper. An order as to one defendant to a judgment entered by default which gives him leave to plead but which does not set aside the judgment, is proper.</p>

<p>Statute of Limitations—when amendment states new cause of action. In an action against a municipality to recover for personal injuries a declaration which fails to allege the serving of the statutory notice, does not state a cause of action and an amendment which alleges such material fact sets up a new cause of action.</p>

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

<p>1. Trial—when remarks of counsel not improper. _ It is not improper for counsel to state in opening: “We are at a sad disadvantage in this case, our client being in California,” the fact being that such client was not present at the trial.</p> <p>2. Depositions—when objections come too late. An objection to either question or answer in a deposition which can be obviated by re-taking the deposition, cannot first be made at the trial, but must be made on a motion to suppress that part of the deposition in apt time before the trial to permit the party to re-take the deposition if desired.</p> <p>3. Appeals and errors—when abstract insufficient to save question. If error is assigned upon the giving of an instruction the abstract must show that the giving of such instruction was excepted to.</p> <p>4. Appeals and errors—what essential to save question of sufficiency of evidence. In order to save for review the question of the sufficiency of the evidence to sustain a verdict and judgment, the abstract should show that the party seeking to raise such question moved for a new trial and excepted to the action of the court in denying the same.</p>

<p>Assumpsit. Appeal from the County Court of Kendall county; the Hon. William Hill, Judge, presiding.</p>

<p>1. Judgment—form, of, when rendered upon pleadings. A final judgment for a defendant on the pleadings should he that defendant go hence without day.</p> <p>2. Service of process—when defect in copy of summons does not affect. Service by copy of summons confers jurisdiction where the copy delivered to the defendant omitted from . its face, but showed upon the back the name of the plaintiff in the action.</p>

<p>1. Passenger and carrier—who subject to liability of latter. A company owning an amusement park and operating a scenic railway is subject, when it has accepted passengers upon such railway for hire, to the liabilities of carriers of passengers generally.</p> <p>2. Pleading—what averment of declaration may be treated as surplusage. If a declaration sets up facts from which the law implies the duty of the defendant to exercise the highest degree of care, a statement in such declaration that it was the duty of such defendant to exercise ordinary care may he treated as surplusage.</p> <p>3. Pleading—what proof sufficient to sustain declaration, in action on the case. The plaintiff in a declaration filed in an action of case need not prove each and every allegation but fulfills his legal burden if he proves enough of such allegations to establish a cause of action.</p> <p>4. Verdict—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $1,200 was not excessive where it appeared that the plaintiff at the time of the accident was 25 years of age, was earning $2.65 per day, that his face and mouth were seriously injured, that he was unable to work for 13 weeks and hears permanent scars upon his face, etc.</p>

<p>1. Appeals and ebrobs—when questions waived. If the declaration and the instructions are not contained in the abstract, if no exception is shown in the abstract and no ruling of the court upon the evidence, if the only exception set out in the abstract is to the denial of the motion for a new trial, and if the only point argued is that the verdict is excessive, notwithstanding there may be other assignments of error, all questions are deemed waived except such question which pertains to the excessiveness of the verdict.</p> <p>2. Verdicts—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $2,500 was not excessive where it appeared that by virtue of the accident the plaintiff was unable to work for a period of five months, that after resuming his work he was not able to earn the same amount as he had earned before the accident, towit, $4 per day, even though he had sustained no permanent injury.</p>

<p>1. Sep abate maintenance—when proceedings to determine issues irregular. A case should not he tried piecemeal. It is improper to first refer to a master one of the defenses interposed and after the determination of such issue to then refer the balance of the case to such master for determination.</p> <p>2. Sepabate maintenance—what does not affect right to allowance of temporary alimony. The alleged existence of an ante-nuptial contract precluding the right of the wife to alimony etc. in the event that she should live separate and apart from her husband, does not bar such wife of the right to temporary alimony pending the determination of the issues in such proceeding, one of which brings into question the validity of such ante-nuptial contract.</p> <p>3. Sepabate maintenance—when method of making allowance for solicitor’s fees improper. It is improper for the court to award solicitor’s fees to a wife in advance of the rendition of the services at a specified rate per day.</p> <p>4. Pleading—how new matter to meet allegations of answer in chancery must he set up. Where an answer in equity sets up new matter which requires to he met by the complainant by pleading other facts, it must he done by amendment to the bill of complaint.</p> <p>5. Pleading—how issues cannot he made in chancery. Issues in chancery cannot he formed by affidavit.</p>

<p>Appeals and ebbobs—when maxim de minimis non curat lex does not apply. Notwithstanding the 'amount involved in an appeal is small, a reversal will be ordered if the right to the appeal has been conferred by statute and injustice appears to have been done by the judgment appealed from.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Bureau county; the Hon. Richard M. Skinner, Judge, presiding.</p>

<p>Assumpsit. Error to the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.</p>

<p>Prosecution for malicious mischief. Error to the Circuit Court of Henry county; the Hon. Emebt C. Gbaves, Judge, presiding.</p>

<p>Bill to construe will. Appeal from the Circuit Court of ■ Rock Island county; the Hon. W. H. Gest, Judge, presiding.</p>

<p>Action in case. Appeal from the Circuit Court of Rock Island county; the Hon. E. C. Graves, Judge, presiding.</p>

<p>1. Mines and Miners Act—what evidence competent in action to recover for wilful violation. In an action charging the existence and maintenance of a dangerous condition in the entry way, it is competent to show the extent, with respect to distance, of such conditions and the time that they have been permitted to continue prior to the accident in question.</p> <p>2. Mines and Miners Act—what question not material in action for wilful violation. The question of the good faith of a mine operator is not material in an action under the Mines and Miners Act charging wilful violation.</p> <p>3. Mines and Miners Act—when instruction in action for wilful violation properly refused. It is proper for the court to refuse to give an instruction which separates the several items of proof tending to show dangerous conditions and tells the jury that none of these facts taken separately prove the case.</p> <p>4. Evidence—when admission of immaterial, will not reverse. The admission of evidence in support of a count which does not state a cause of action will not reverse, if issue has been joined upon such count.</p> <p>5. Evidence—repetitions properly excluded. It is proper to refuse to permit a question to be repeated which has once been asked and answered by the same witness.</p> <p>6. Instructions—effect of, referring to the declaration as a whole, where the jury have teen told to disregard a particular count. Where an instruction directs the jury to disregard a particular count of the declaration, a reference in general terms to the declaration in other instructions is to be construed as intending a reference only to that part of the declaration which the jury has not been instructed to disregard.</p>

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

<p>1. Contracts—what performance of "building contract sufficient. Literal compliance is not essential to recover upon a building contract; substantial compliance in good faith is sufficient.</p> <p>2. Interest—allowance upon master’s award. Interest upon the award of a master is properly allowed from the time of the filing of his report to the time of the entry of the decree thereon.</p> <p>3. Costs—propriety of taxation of stenographer’s fees. It is proper to tax as costs the fees of an official stenographer at the rate fixed by statute; if the transcript on appeal does not show what amount was so taxed it will be presumed that no more than the statutory authorization was included in the costs taxed.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>Damages—when new trial will not he awarded. A new trial will not be awarded to permit the recovery of merely nominal damages.</p>

<p>1. Cities, villages and towns—power of city council to compromise litigation. It is peculiarly within the province and power of the city council of a city to compromise litigation which affects the business affairs of the city.</p> <p>2. Cities, villages and towns—power and duties of city attorney. It is the duty of a city attorney to obey the orders of the city council with respect to litigation which affects the business affairs of the city and he has no power with respect to such litigation superior to such city council.</p> <p>3. Cities, villages and towns—when resolution deemed carried. The declaration of the mayor that a resolution presented to a city council is lost, is not conclusive; such a resolution will be deemed to have carried if the records of the meeting of such council show facts from which such legal conclusion, namely, that the resolution carried, may be drawn.</p> <p>4. Cities, villages and towns—what resolutions pertaining to water meters adopted and valid. Held, that the resolutions in question in this case were not designed to repeal an ordinance, that the same were lawfully adopted and were valid. Such resolutions provided in substance, first, that certain kinds of meters could be installed by consumers of water; second, that such meters need not be purchased from the city but could be purchased direct by such consumers, and, third, that until such time as said meters were installed (a time limit being fixed by the resolution) the previous prevailing flat rate for the use of water would be charged.</p> <p>5. Injunctions—when damages upon dissolution should not he allowed. If an injunction is obtained against a city and subsequently dissolved and the bill dismissed at the instance of the complainant, damages should not be awarded if such dissolution and dismissal were the result of a settlement made pursuant to negotiations regularly initiated by the city council with such complainant and finally concluded by a settlement made in writing with a majority of such city council, competent to pass the resolution of settlement provided for, which said resolution of settlement was subsequently duly passed.</p> <p>6. Injunctions—when city officials not entitled to damages upon dissolution. City officials made defendants in their official capacities are not entitled to an allowance of damages upon dissolution if such city is not entitled to damages.</p>

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

<p>Petition to vacate approval of executor’s report. Appeal from . the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>1. Assumpsit—when lies. Assumpsit lies to recover under a contract of service which provides for a specified salary and one-fourth of the profits of the business of the employer.</p> <p>2. Pleading—aider hy verdict. Where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been fatal objection upon demurrer, yet, if the issue found be such as necessarily required, on the trial, proof of the fact so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission, is cured by the verdict.</p>

<p>1. Evidence—when general objection does not avail. A general objection to evidence relative to expenses in searching for employment does not avail to raise on review the question of the failure to specify items.</p> <p>2. Variance—when not fatal. A slight variance is not fatal to a verdict apparently just.</p> <p>3. Instructions—when may assume facts. An instruction may properly assume the existence of facts which are undisputed.</p> <p>4. Instructions—when upon quantum of evidence properly refused. An instruction which requires that the jury must be “satisfied” is properly refused in that it requires too great a quantum of proof.</p> <p>5. Assumpsit—when recovery may be had under common counts. Recovery may be had under the common counts if nothing remains to be done but the payment of money.</p>

<p>Prosecution for unlawful sale of liquor. Appeal from the County Court of Du Page county'; the Hon. Mazzini Slusser, Judge, presiding.</p>

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

<p>1. Pleading—when action of court in sustaining demurrer to pleas immaterial. The action of the court in sustaining demurrers to special pleas is immaterial, if under the general issue the defendant has been permitted to introduce all the evidence which he could have introduced under such pleas had no demurrer been sustained thereto.</p> <p>2. Suretyship—what does not discharge surety. The fact that the principal maker of a note payable to a bank has funds deposited in such bank after the maturity of the note and before suit thereon, exceeding the sum due, and that such bank does not appropriate the same to its payment, does not discharge the surety.</p> <p>3. Suretyship—when extension discharges surety. If a creditor by a valid agreement, without the assent of the surety, gives further time to the principal debtor, the surety will be discharged, but to discharge the surety such an agreement must put it out of the power of the holder of the note to enforce the same during the period of forbearance agreed upon. To discharge the surety such an extension must be based upon a new and valid consideration.</p> <p>4. Suretyship—what consideration sufficient to support extension which will discharge surety. The payment of legal interest on a debt in advance is a sufficient consideration to support an agreement for an extension of the time of payment and such payment of interest by the principal is, by itself, sufficient prima facie evidence to extend the time of payment, and works a discharge of the surety. However, the mere payment of a part of the principal actually due, or all the interest actually due, will not constitute such new contract with a sufficient consideration; there must be an acual intention of both parties to extend the time of payment and an intention to pay and receive the consideration therefor.</p>

<p>1. Divorce—when decree may properly deprive wife of property interests. If a decree of divorce is awarded because of the adultery of the wife, it is not improper for the court to enter a decree extinguishing her interest in property which had been purchased with the money of the husband.</p> <p>2. Divorce—how proof of adultery may be made. The offense of adultery may be sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy; it is not necessary to prove the direct fact of adultery; the fact is inferred from circumstances that lead to it by fair inferences as a necessary conclusion.</p> <p>3. Evidence—effect of failure to call witness. When neither party to a civil suit calls an available witness, whatever presumptions will be indulged from the failure to call such witness, will be against the party to whose interests such witness would most likely incline.</p> <p>4. Appeals and errors—when findings of chancellor not disturbed. The findings of fact by a chancellor will not be disturbed on review unless it is apparent that error has been committed.</p>

<p>Mandamus. Appeal from the Circuit Court of Bureau county; the Hon. Richard M. Skinner, Judge, presiding.</p>

<p>1. Suretyship—extent of liability of guarantor. Where one guarantees the act of another his liability is commensurate with that of his principal and he is no more entitled to notice of default than is such principal; both must take notice at their peril.</p> <p>2. Suretyship—when extension does not discharge guarantor. In order that the guarantor may be discharged by an extension of time there must be a binding agreement between the creditor and principal debtor, entered into without the knowledge and consent of the guarantor, founded upon a valuable consideration, for an extension of time for a definite period, whereby the creditor’s hands are tied so that he cannot proceed to collect from the principal until the expiration of the time granted to him.</p> <p>3. Evidence—when cross-examination improper. It is proper to sustain an objection to a question upon cross-examination which has no béaring upon a question asked upon direct.</p>

<p>Replevin. Appeal from the County Court of Peoria county; the Hon. W. I. Slemmons, Judge, presiding.</p>

<p>1. Verdicts—when not disturbed. If the evidence upon an issue of fact is conflicting, the verdict of the jury approved by the trial judge will not be disturbed in the absence of material error of law.</p> <p>2. Instructions—effect of repetitions. While it may be unnecessary for the court to give to the jury many instructions defining a particular duty, yet if such instructions so given correctly state the law, the repetition of such correct principle does not amount to reversible error.</p> <p>3. Instructions—what justifies refusal. If an instruction is long and involved and contains an improper statement, even though otherwise correct, the court is justified in its refusal.-</p> <p>4. Passenger and carrier—when doctrine res ipsa loquitur does not apply. The doctrine res ipsa loquitur has no general application to injuries resulting to a passenger. If, however, an injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, or ny some defect in machinery, cars or track, and the accident is of such a character as does not ordinarily occur if due care is used, the law comes to the aid of the passenger and raises a presumption of negligence.</p>

<p>Assumpsit. Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>1. Mines and Miners Act—who cannot maintain action. Where a wilful violation of the provisions of the Mines and Miners Act results in injury to a party the statute gives such party an action for the direct damage sustained thereby; in case of loss of life by reason of such wilful act of violation, the right of action is given by the statute to the widow of the person so killed, his lineal heirs and adopted children, or to any person who was dependent for support upon the person so killed, for the recovery of damages for injuries caused by such loss of' life; hut the statute does not give a right of action to the administrator of the person so killed.</p> <p>2. Evidence—when hearsay competent. Hearsay evidence which has been received without objection will he treated as competent.</p> <p>3. Evidence—what does not support substantive fact. A statement made by a person killed in an accident which is not a part of the res gestae is not evidence, even though it may have been received in evidence without objection, which tends to establish the manner in which such person came to his death.</p> <p>4. Master and servant—when doctrine of assumed risTc applies. If an injury results to a servant from the balky habits of a mule known to such servant and not complained of by him, he cannot recover of his master.</p> <p>5. Master and servant—when declaration insufficient. Held, that the declaration in this case was insufficient in that it did not aver that the servants whose negligence was alleged to have been the cause of the injury in question were not fellow-servants of the plaintiff’s intestate.</p> <p>6. Master and servant—when declaration insufficient. Meld, that the declaration in this case was insufficient in that it admitted that the plaintiff’s intestate was fully aware of the unsafe and dangerous character of the conditions and appliances in question and made no complaint thereof but consented to use the same.</p> <p>7. Damages—in action for death caused "by alleged wrongful act. Meld, that the evidence in this case, which showed that the plaintiff’s intestate was not a regular contributor to the support of his next of kin, was of such a character as to render it doubtful whether or not more than nominal damages could be recovered.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Horran ce Dibell, Judge, presiding.

<p>1. Master and servant—what risks assumed. It is only such injuries as arise after the master has used reasonable care to make the place reasonably safe in which he directs a servant to work, of which the servant impliedly agrees to assume the risk, and for which the master is not liable.</p> <p>2. Master Arm servant—what risk not assumed. Held, that the servant in this case did not assume the risk arising from a dangerous condition of the roof of a mine, the falling of which caused the injury in question.</p> <p>3. Contributory negligence—when remaining in place of danger does not constitute. Held, that a servant who was injured by the falling of the roof of a mine was not guilty of contributory negligence in remaining in a place of danger, it not appearing that he knew or was presumed to know the conditions which resulted in the accident in question.</p> <p>4. Instructions—when upon question of allowance for medical expenses in personal injury action-not erroneous. Where the evidence shows that medical services were performed and the value thereof, the presumption is that the plaintiff to whom such services were rendered is liable therefor and an instruction which authorized the jury to consider them is therefore not erroneous.</p> <p>5. Verdicts—how cannot he impeached. Affidavits of the jurors themselves as to things that took place in their retirement while considering their verdict, will not he received to impeach such verdict as returned into court.</p>

<p>Petition for removal of guardian. Appeal from the Circuit Court of De Kalb county; the Hon. Mazzini Slusseb, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.

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

<p>Instruction—when peremptory should not he given. A peremptory instruction for the defendant in an action on the case for personal injuries should not he given where the evidence introduced on hehalf of the plaintiff when taken to be true, together with all legitimate inferences which may he drawn therefrom in favor of the plaintiff, tends to support the cause of action set out in the declaration.</p>

<p>Forcible detainer. Appeal from the County Court of La Salle county; the Hon. W. H. Hinebauoh, Judge, presiding.</p>

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

<p>1. Damages—what evidence competent in action for injury to real property. In an action for injury to real property caused by the increased flow of water due to the act of the defendant, evidence tending to show the resulting damage up to the time of the trial is competent.</p> <p>2. Damages—what evidence competent in action for injury to real property. In an action for injury to real property caused by the increased flow of water due to the act of the defendant, proof is best made by showing the manner in which the market value was in fact depreciated by actual results rather than by offering the opinions of witnesses based upon their conclusions as to what the effect would be.</p> <p>3. Damages—when instruction in action for injury to real property not erroneous. In an action for injury to real property caused by the increased flow of water due to the act of the defendant, an instruction which does not make an express reference to the date or time at which the depreciation shall be estimated, held not ground for reversal.</p> <p>4. Instructions—when failure to refer to the evidence will not reverse. Held, that an instruction upon the question of damages which was deficient in not instructing the jury to base their award upon what they might find from the evidence, was not ground for reversal.</p>

<p>Damages—when absence of evidence as to medical expenses etc. ground for reversal. Held, that in the absence of evidence as to medical expenditures, etc., or as to liability therefor, it was error, which constituted ground for reversal, to authorize the jury to make allowances in their verdict for medical attendance, etc.</p>

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

<p>Practice—section S6 of Practice Act of 1901 construed. Section 36 of the amended Practice Act of 1907 does not so change the common law remedy as now to require a plaintiff wnen suing in trespass for injury to real property, to establish paramount title to the land, as in ejectment; such amendment, in effect, enlarges rather than restricts such common law remedy of trespass.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Lawrence county; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Appeals and ebbobs—effect of filing insufficient abstract. The failure to file an abstract on' review conforming to the rules of court, authorizes a pro forma affirmance.</p>

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

<p>Master and servant—when former not held, to liability of carrier. Where a person in the employ o£ a railroad company travels upon the cars of the company back and forth from his home to the place where his services are rendered, or from one place to another in the performance of his duties, and is transported free of charge as part of the contract of service, and where the train is engaged in the construction or maintenance of way and the like and the employe’s duties at the time of the injuries connect him with the train in the performance of that work, then he is, while so traveling, an employe and not a passenger of the company, and is per se a fellow-servant with the train men, and, on that ground, the company will not be liable for an injury to him resulting from the negligence of the train men in operating the train.</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. Statutory law—rules of construction. In construing an act of the legislature the courts will take into consideration the purpose of the legislature in enacting it and the limitations, if any, upon the power of the legislature with respect to the subject-matter, as well as the language employed in its structure.</p> <p>2. Statutory law—how acts regulating foreign corporations construed. Statutes regulating foreign corporations doing business in Illinois must be so construed and enforced as not to interfere with interstate commerce.</p> <p>3. Judicial notice—of what talcen. The court will take judicial notice that prior to the act of 1897 hundreds of corporations were organized under the laws of foreign states with the i^sntion of carrying on their business in this state, and that many '¡others transferred their business locations, in whole or in part, into this state, or located branches of their business here, thus depriving the state of its fees for incorporating and of its power to exercise over such corporation the surveillance which our laws require to be exercised over domestic corporations.</p> <p>4. Interstate commerce—defined. The sale and delivery of goods or manufactured commodities by a citizen or corporation of one state, in the usual course of business by the usual instrumentalities and means, is interstate commerce.</p> <p>5. Corporations—what not transacting business in this state. Where a foreign corporation has no business establishment or established place of business of any kind in this state and carries on no local business of any kind in this state and where it does no more than to sell and deliver its merchandise through the usual instrumentalities of drummer and common carrier, it is not “transacting business or exercising its corporate powers or franchise” in this state within the meaning of the statute regulating foreign corporations doing business in this state.</p>

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

<p>Contempt—what requires discharge of contemnor. If the contemner charged with a criminal contempt can clear himself upon his own oath, he must be discharged; if he commits perjury by his answer the remedy is to prosecute him for that offense.</p>

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

<p>1. Evidence—how defense of engineering problem made to charge of wilful violation must be established. The defense interposed to the charge of wilful violation that the conditions complained of represented an engineering problem for which the operator was not liable, in order to he considered by the court must be supported by evidence.</p> <p>2. Instructions—must be pertinent to issues. An instruction which is misleading as applied to the particular facts of a case is improper and should not he given to the jury.</p>

<p>Brokers and factors—when commissions earned. A broker who is the procuring cause' of a sale consummated by his concern is entitled to his commissions.</p>

<p>Proceeding by information. Error to the County Court of Wabash county; the Hon. J. A. Lapp, Judge, presiding.</p>

<p>Instructions—must not ignore material issue. An instruction which, concludes with a direction to the jury should not omit reference to any material issue in the cause.</p>

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

<p>Contbacts—remedies available for breach providing for purchase of land. Upon refusal to comply with the provisions of a contract to purchase real estate, two remedies are available to the vendor, namely, an action at law to recover damages for the breach, the measure of such damages being the difference between the market Value of the property on the day of the breach and the contract price, and a suit in equity for specific performance of the contract. In an action at law the vendor cannot recover the contract price for the land and still retain possession and title.</p>

<p>1. County courts—jurisdiction to determine contested election. The County Court has by statute final jurisdiction to hear and determine a contested election held upon the proposition as to whether or not particular territory shall be saloon or anti-saloon.</p> <p>2. Elections—when city hound hy judgment rendered upon contest. A city if privy to the contest of an election, is bound by the judgment rendered therein, notwithstanding it was not a party by name.</p> <p>3. Constitutional law—when waived. By appealing to the Appellate Court all questions involving the constitutionality of a statute are waived.</p>

<p>Inns and inn-keepers—when responsibility attaches with respect to baggage. Where baggage is delivered to the inn-keeper as the baggage of an intended guest who within a reasonable time thereafter actually becomes a guest, the responsibility of the innkeeper for the safe-keeping of the baggage relates back to the time when the baggage was delivered.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.</p>

<p>1. Mines and Minees Act—who cannot recover for wilful violation. A person injured through the wilful violation of the Mines and Miners Act cannot recover if he does not bring himself within the class of those for whose benefit the particular provision which is alleged was violated, was enacted.</p> <p>2. Mines and Miners Act—when declaration charging wilful violation does not state cause of action. Held, that the declaration in this case, which was filed by one who had been employed as an attendant, did not state a cause of action in that the injury complained of did not appear to have proximately resulted from the wilful violation complained of.</p> <p>3. Negligence—when proximate cause question of law. What is the proximate cause of an injury is ordinarily a question of fact to be determined by the jury, but it can arise as a question of law when the undisputed facts are such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn therefrom.</p>

<p>1. Pleading—rule of construction. A pleading is to be taken most strongly against the pleader.</p> <p>2. Statute of frauds—when forbearance as a consideration insufficiently alleged. Forbearance to bring an attachment action against the original debtor is insufficient to support a promise to pay the debt oí another if it is not alleged that the one forbearing to sue in good faith believed himself entitled to maintain such action and actually intended to bring it.</p> <p>3. Statute of fbauds—when original undertaking sufficiently alleged. Meld, that the declaration in this case set up a good cause of action by the plaintiff against the defendant as upon an original undertaking.</p>

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

<p>1. Infants—effect of commencement of suit in name of. The commencement of a suit by an infant in his own name is a mere irregularity which may he cured hy amendment and after his death his administrator may he substituted and the suit then proceed.</p> <p>2. Master and servant—what essential to application of doctrine of assumed rish. The doctrine of assumed risk will not preclude a recovery by a young inexperienced servant unless it appears not only that he knew of the defect in the appliances which resulted in the injury, hut likewise that he appreciated the danger arising from the use of such appliances in the particular manner which caused such injury.</p>

<p>1. Common carriers—what competent upon question of reasonable time for transportation. Opinion evidence is not competent; the usual and customary time required for transportation between the points in question is the proper way of making the proof.</p> <p>2. Common oabbibbs—what does not excuse delay in transportation. A common carrier cannot avoid its responsibility for damages resulting from unreasonable delay in transportation of goods received by it for shipment, upon the ground that its employes refused to perform their usual duties. In such case the delay is held to result from the fault of the employes of the common carrier, for which fault the common carrier is responsible.</p>

<p>1. Mines and- Minees Act—what evidence not competent in action for wilful violation. The conditions existing in a mine long after the accident are not competent without proof that they had remained unchanged in the interim.</p> <p>2. Mines and Miners Act—when instruction in action charging wilful violation erroneous. An instruction is erroneous which departs from the provisions of the statute with reference to the purpose for which props, caps and timbers are to he provided.</p> <p>3. Mines and Miners Act—what not defense to action charging wilful violation. The contributory negligence of the plaintiff, if any, is not available as a defense in an action brought under the Mines and Miners Act charging a wilful violation thereof.</p>

<p>Action in debt. Error to the Circuit Court of Champaign county; the Hon. Solon Philbbick, Judge, presiding.</p>

<p>1. Physicians and surgeons—degree of care required of. Persons practicing as physicians and surgeons are required to possess ordinary skill in their profession, and to practice their profession with ordinary skill. Ordinary skill, as applied to physicians and surgeons, is that degree of skill which is ordinarily possessed by physicians and surgeons in practice.</p> <p>2. Physicians and surgeons—when not liable for negligence. A physician who gives his patient the benefit of his best judgment is not liable for negligence, even if his judgment is erroneous, unless the error is such- as to be inconsistent with ordinary skill.</p>

<p>Petition for writ of prohibition. Appeal from the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>1. Service of process—when upon town sufficient. Held, that the service of summons upon a town, in form as follows, complies with the statute: “I have served the within writ by delivering a true copy to B. W. Patterson, Supervisor of the Town of Sullivan.”</p> <p>2. Appeals and errors—when hill of exceptions essential. Copies of instruments sued on filed with the declaration in an action at law, are not a part of the record unless made so by being embodied in the bill of exceptions.</p> <p>3. Appeals and errors—presumptions in support of judgment. In the absence of a bill of exceptions, unless it clearly appears from the common law record that the court was without jurisdiction, every intendment will be indulged in to sustain the judgment of the trial court and it will be presumed that the court heard sufficient competent evidence to sustain the finding and judgment.</p>

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

<p>1. Evidence—what not competent upon question of payment. In order to render checks relating to other transactions than that in issue competent upon the question of payment, all the checks which have passed between the parties in all their business transactions must be produced.</p> <p>2. Witnesses—who not incompetent by virtue of interest. An administrator plaintiff is competent, the adverse party not defending in a representative capacity.</p> <p>3. Appeals and ebbobs—effect of former opinion. The opinion of the Appellate Court becomes the law of the case and this notwithstanding upon a subsequent appeal the Appellate Court becomes convinced of an erroneous conclusion therein.</p> <p>4. Instbuctions—when upon credibility of witnesses not erroneous. Held, that the following language taken in connection with the entire instruction was not erroneous: "You are to believe as jurors what you believe as men and there is no rule of law which requires you to believe as jurors what you would not believe as men.”</p> <p>5. Instbuctions—when errors cannot be urged. Errors contained in instructions cannot be urged as grounds for reversal if the same errors are contained in instructions which have been given to the jury at the instance of the complaining party.</p> <p>6. Vebdicts—when not disturbed. Notwithstanding the Appellate Court is inclined to the opinion that the evidence in the record would better support a verdict for the other party, the verdict as rendered will not be disturbed unless the Appellate Court is prepared to say that the verdict as returned by the jury is clearly and manifestly against the weight of the evidence.</p>

<p>Contracts—when question of construction not subject to review. If a party cause the court to submit to the jury the question of the construction of a contract in question, he cannot thereafter complain on review of the construction which has been given by the jury.</p>

<p>1. Certiorari—how petition for construed. The averments of a petition for certiorari are to he construed most strongly against the pleader.</p> <p>2. Certiorari—when petition does not sufficiently allege failure to file bond. Held, that the petition for certiorari in question in this case did not sufficiently allege the failure to file the bond required by statute as a preliminary to the consideration of the proceeding sought to be reviewed.</p> <p>3. Appeals and errors—what not appealable order. An order granting an alternative writ of certiorari is merely interlocutory and an appeal cannot be taken from an order either granting or denying such alternative writ.</p> <p>4. Appeals and errors—what does not operate by way of supersedeas. On the final hearing upon a petition for a writ of certiorari the only final order and judgment from which the petitioners are entitled to pray an appeal, is the order and judgment dismissing their petition, and an appeal from such order and judgment does not operate as a supersedeas to continue the alternative writ of certiorari in force.</p>

<p>1. Evidence—what competent upon issue of death presumed from seven years’ absence. Investigations made after suit upon a benefit certificate has been instituted are competent where the death is sought to be established under the presumption arising from seven years continued and unexplained absence.</p> <p>2. Evidence—what competent upon issue of death presumed from seven years’ absence. If information has been given to relatives of the presence of the party who has disappeared, to the effect that he had been seen at a certain time and place, failure to investigate such clue may be justified by showing the bad reputation for truth and veracity of the person who has given such information.</p> <p>3. Evidence—what sufficient to establish death arising from disappearance. It is sufficient if the facts necessary to raise the presumption of death are established by a preponderance of the evidence.</p>

<p>1. Evidence—when in civil case must establish defense beyond reasonable doubt. In actions of tort when a criminal offense is charged in the pleadings and must be established to sustain the cause of action or to maintain the defense, the presumption of innocense arises and the crime charged must be proven by evidence which removes every reasonable doubt of guilt.</p> <p>2. Special interrogatories—must pertain to issues. A special interrogatory should not be given to the jury which constitutes a departure from the true issues involved.</p>

<p>Petition to sell real estate to pay debts. Appeal from the County Court of Coles county; the Hon. T. N. Coeeb, Judge, presiding.</p>

<p>Instructions—must not assume facts in dispute. An instruction is prejudicial and ground for reversal .which assumes the existence of material facts not proven.</p>

<p>Petition for removal of conservator, etc. Appeal from the Circuit Court of McLean county; the Hon. Corostin D. Myers, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.</p>

<p>Corporations—what “doing business in this state” within meaning of statute regulating foreign corporations. Meld, under the evidence, that a corporation organized for the purpose, among other things, of conducting schools hy correspondence, was 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 Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Verdicts—when not disturbed. A verdict will not be set aside as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Insurance—when condition requiring payment of premium waived. If the agent of the company agree that the premium might be paid in weekly installments, the condition of the policy requiring actual payment and acceptance of the full semi-annual premium before the same should become effective, is thereby waived,</p> <p>3. Insurance—when policy effective before delivery. If the actual payment of the premium in advance as provided by the policy is waived by an agreement, receipt of such policy by the agent of such company who has made such agreement, for the purpose of delivery to the assured, is tantamount to a delivery to such insured and the policy is effective.</p> <p>4. Vabiaitces—when must he pointed out. A variance between the declaration and proof must be pointed out during the trial; otherwise it is waived.</p>

<p>Forcible entry and detainer. Appeal from the Circuit Court of Schuyler county; the Hon. Guy R. Williams, Judge, presiding.</p>

<p>1. Passengee and cabbies—when doctrine res ipsa loquitur applies. When' a passenger is injured by a collision, proof of the relation of passenger and carrier, of the collision and injury, if no contributory negligence upon the part of the passenger appear, makes a prima facie case for the resulting damages and costs upon the carrier; the onus of proving that the injury resulted from inevitable accident or some cause against which human prudence and foresight could not have provided, is on the carrier.</p> <p>2. Passenger and cabbies—status of United States postal employe. A United States postal employe while engaged in the performance of his duties upon a railway train is a passenger entitled to all rights as such as against the carrier.</p> <p>3. Verdicts—when not excessive. Held, that a verdict for $6,000 reduced by remittitur to $3,000 rendered in an action on the case for personal. injuries was not so excessive as to warrant a reversal of the judgment, it appearing that the plaintiff at the time of the injury was about 44 years of age, that he had previously been in good health and had been in the government employ for about 16 years; that he received cuts and bruises about the face, head, leg and back; that five of his ribs were fractured, two of them being so sunk as to create a deep depression which yet existed; that he remained in bed at the hospital ten days, and at his home 50 days; that he suffered great pain, lost much sleep and that he had not at the time of the trial recovered from the shock to his nervous system; that his hearing was seriously and permanently impaired, his capacity for breathing weakened and a pressure caused on his heart and lungs so as to render him more susceptible to lung trouble.</p>

<p>1. Injunctions—what service will not support. Service by publication will not sustain an injunction against a party so served.</p> <p>2. Bills to bemove clouds—what not. A cloud is a semblance of a title, either legal or equitable, or a claim to an interest in land appearing in some legal form, but which is in fact unfounded, or. which it would be inequitable to enforce; held, that the contract in question in this case did not come within such definition, and service by publication was not sufficient to confer jurisdiction of the subject-matter thereof.</p> <p>3. Bills to bemove clouds—what essential to maintain. A bill to remove a cloud on title can only be maintained where at the time of the filing of the bill the complainant is in possession of the premises or where the same are vacant and unoccupied and the bill must allege such possession and the complainant must prove it.</p>

<p>■1. Masters in chancery—effect of failure to object and except to report. If neither party objects or excepts to the report of a master, they are concluded thereby so far as his findings of fact are concerned.</p> <p>2. Chancery—when relief upon ground of mutual mistalce not granted. If an agreement is what it was intended to be, equity will not interfere with it, because the parties have mistaken its legal effect and import.</p>

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

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

<p>1. Brokers and factors—when entitled to commissions. If a broker substantially complies with his contract he is entitled to his commissions.</p> <p>2. Instructions—must not he argumentative. An instruction is properly refused which is argumentative and misleading.</p>

<p>Bill in chancery. Error to the Circuit Court of Calhoun county; the Hon. Albert Akebs, Judge, presiding,</p>

<p>Distress for rent. Appeal from the County Court of Morgan county; the Hon. Francis E. Baldwin, Judge, presiding.</p>

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

<p>1. Contracts—liability .upon subscriptions to induce location of industrial enterprise. A subscription contract entered into with trustees for the purpose of inducing the location of an industrial enterprise in a particular city when acted upon is valid and enforceable by such trustees.</p> <p>2. Contracts—when performance not essential to recovery. If a contract provide for payment in installments at definite times before performance, the performance of the contract need not be shown in order to recover such installments.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Christian county; the Hon. Treman E. Ames, Judge, presiding.</p>

<p>Replevin. Appeal from the County Court of Vermilion county; the Hon. Isaac A. Love, Judge, presiding.</p>

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

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

<p>1. Variances—when objection comes too late. An objection of variance which is not raised until the close of the plaintiff’s evidence, comes too late and is thereby waived.</p> <p>2. Master and servant—when Knowledge of defective appliances need not be established. If the defect was one of construction rather than ensuing disrepair, the knowledge thereof in the master need not be affirmatively proved.</p> <p>3. Master and servant—when doctrine of assumed risK does not apply. A servant is not chargeable with knowledge of latent defects not discernible by. tests applied by him; the servant is not required to search for latent defects and dangers arising from the original condition of the place to which he is sent to work and he does not assume the risk of defects of -which he has no knowledge or which he could not discover by the use of ordinary care and of which the master has or ought to have had knowledge.</p>

<p>Action ini case for personal injuries. Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of De Witt county; the Hon. Solon Philbbick, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge, presiding.

<p>Appeals and errors—when writ dismissed. If the bill of exceptions as abstracted fails to show either a finding or judgment in the cause, the writ will be 'dismissed.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Divoboe—how adultery may be established. Adultery may be inferred from circumstances that lead to it by fair inferences as a necessary conclusion, or from such circumstances as would lead the guarded discretion of a reasonable man to the conclusion.</p> <p>2. Divoboe—what evidence competent upon issue of drunlcenness. Evidence of intoxication since the filing of the suit is competent not to show the substantive cause but to show a continuing habit.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Evidence—what essential to render declarations of agent competent. To make the declarations of an agent admissible so as to bind the principal, it is essential that at the very time of the making of such declarations such agent be transacting or doing the business of the principal so that the statements of the agent become a part of the res gestae.</p>

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

<p>Action in case for personal injuries. Appeal from the Circuit Court of Coles county; the Hon. Mokton W. Thompson, 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>Assumpsit. Appeal from the Circuit Court of Hancock county; the Hon. John A, Gray, Judge, presiding.</p>

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

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

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbbouqh, Judge, presiding.</p>

<p>Judgments—when, of justice, not void. If the hearing of a case before a justice is set for a specific hour and his docket shows that judgment was rendered at such hour, the defendant not appearing, a reviewing court will not conclude that such justice had failed to observe the established practice of waiting an hour before proceeding with the hearing.</p>

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

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

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.</p>

<p>1. Common cabbierS'—when burden of exculpation upon. When the evidence is that cattle were in good condition when delivered to the carrier for shipment and that when they arrived at their destination they were to some extent bruised and damaged, the burden is upon the carrier to show that they were not injured through its negligence.</p> <p>2. Common cabbiebs—what evidence tends to rebut presumption of negligence. If the burden has been cast upon the carrier to show lack of negligence in transporting mules, it is competent as tending to rebut the presumption of negligence to show that other mules carried on the same train in another car reached their destination without injury.</p> <p>3. Evidence—what record entries incompetent. A book kept by an agent of a railroad company in which the condition of property upon reaching destination is recorded, even though provided for by a regulation of the company, is not competent in itself but may be.used by such agent for the purpose of refreshing his recollection.</p>

<p>Assumpsit. Appeal from the Circuit Court of Christian county; the Hon. Albebt M. Rose, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Morgan county; the Hon. Fbancis E. Baldwin, Judge, presiding.</p>

<p>Counties—power of Circuit Court to authorize expenditures. The Circuit Court has no power to authorize its cleric to incur an expenditure for the printing of its dockets so that the same may be distributed one copy to the judge and one copy to each member of the bar, etc.; neither section 19 of chapter 110 nor section 34 of chapter 37 confers such authority.</p>

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

<p>Appeals and ebrobs—when finding of court not disturbed. A finding of fact by the court will not be set aside on review as against the evidence unless clearly and manifestly so.</p>

<p>Mines and Minees Act—what evidence of demands for props not prejudicially erroneous. Held, that evidence of ineffectual demands for props made on the day of the injury not being disputed, it was not prejudicial error to receive in evidence other demands for props which had not been complied with.</p>