Volume 150 — Illinois Appellate Court Reports

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

<p>Proceeding in court of probate. Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding.</p>

<p>Foreclosure. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Appeals and ebrobs—when finding of court not disturbed. If the record does not show upon what ground the judge decided a cause his finding will not be disturbed if there is any ground upon which it may be sustained.</p> <p>2. Appeals and errors—when finding of court not disturbed. A finding of fact by the trial court will not be disturbed on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>3. Brokers and factors—when not entitled to commissions. If a broker is a mere volunteer or the agent of the purchaser, he cannot recover a commission from the owner for a sale effected; his employment by the owner must be established as a condition to recovery.</p>

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Farlist Q. Ball, Judge, presiding.</p>

<p>Master and servant—when former not liable for injury to child of latter. If a master provide a dwelling for a servant and Ms family, lie is not liable for an injury to a young child of such servant occasioned by its falling through a trap door which had been left open by its mother, and the fact that it was Inconvenient to keep such trap door continually closed is not material, nor is the fact that the master had promised to change the construction of any effect upon the question of liability.</p>

<p>1. Bills of particulars—when refusal to grant additional, in criminal case, not ground for reversal. A motion for an additional hill of particulars in a criminal case is addressed to the sound discretion of the presiding judge and unless the Appellate Court is able to say that the denial of the motion was an abuse of judicial discretion and that such denial operated to the injury of the defendants, the ruling of the trial judge will not be disturbed.</p> <p>2. Bills of particulars—when proof not limited by. If a bill of particulars is only asked and given as to one count of an indictment the permitting of evidence under the other counts of such indictment is proper.</p> <p>3. False pretenses—-what evidence not essential to conviction for obtaining money by. Held, in this case, that it was not necessary to the conviction had for obtaining money by false pretenses that the. worthlessness of the stock foisted upon the complaining witness be established; also that the admission of the ineffectual efforts of the complaining witness to sell such stock was not error.</p> <p>4. Indictment—when sufficiently charges conspiracy. An indictment is sufficient which charges a conspiracy to perpetrate a confidence game, the confidence game being a felony.</p> <p>5. Instructions—when upon conspiracy not erroneous. Held, that an instruction upon the subject of the joint criminality of conspirators was not erroneous which contained the following language: “All who with knowledge of the facts concur in the plans originally formed and aid in executing them.”</p> <p>6. Instructions—when failure to refer to limitation period not erroneous. In a criminal case, if the statute has not run against the offense, the failure of an instruction to refer to the period of limitation is not error which will reverse.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon.-Thomas G. Windes, Judge, presiding.</p>

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

<p>1. Evidence—when impeachment improper. A party cannot impeach a witness whom he has called.</p> <p>2. Witnesses—when incompetent 6y virtue of marital relation. The testimony of divorced wives of a party as to matters occurring during the marital relation, is incompetent.</p> <p>3. Appeals and errors—presumptions in favor of decree. It will be assumed that the chancellor’s decision was founded on evidence lawfully admissible and the Appellate Court in weighing such evidence will take into consideration, in arriving at its judgment, only such evidence as it regards as admissible.</p> <p>4. Amendments and jeoeails—when denial of leave after announcement of decision not error. The right to permit amendments at any time rests within the sound discretion of the court; it is only when it is made clearly to appear that such discretion has been abused that the court of review will interpose its judgment contrary to that of the trial judge.</p>

<p>1. Contracts—what not wagering. A contract providing for the rendition of professional services of a medical nature for life and the payment of compensation therefor after death of the party to whom such services are rendered, is not a wagering contract within the legal definition thereof.</p> <p>2. Contracts—scrutiny of, where fiduciary relation exists. The rule applicable to those between whom exist such relationships as lawyer and client, guardian and ward, trustee and cestui que trust, pastor and church member and doctor and patient, requires circumspection in searching into the hona fides of transactions sought to be enforced by one occupying such fiduciary relationship, against another, who was subjected to the influence arising therefrom.</p> <p>3. Contracts—when set aside for undue influence and inadequacy of consideration. If a contract is entered into between a medical adviser and his patient whose confidence he has, it will be held void if the consideration given by such adviser is inadequate and undue influence is shown.</p> <p>4. Contracts—when consideration not illegal. A valid contract made and sought to be enforced in this State calling for the rendition of medical services, is not affected by the fact that part of such services were rendered in another state contrary to law.</p> <p>5. Contracts—what against public policy. A contract calling for medical services to be rendered for life with compensation payable after the death of the patient, is void as against public policy.</p> <p>6. Depositions—statute authorising taking, construed. While there is no provision in the Administration Act lor the taking of depositions, still by fair and logical interpretation the act which authorizes the taking of depositions “in suits at law” and “in any suit in chancery,” is sufficiently broad and comprehensive to extend to the proving of a claim against a deceased person in the Probate Court.</p>

<p>Separate maintenance—when jurisdiction of proceeding exists. Where a husband deserts his wife while they are residents of Illinois and takes up his residence in another state, the wife may, if she continues to reside in this state, maintain a bill for separate maintenance in any county of the state.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>1. 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>2. Municipal Court—propriety of oral instructions. The judges of the Municipal Court may in their discretion instruct jurors either orally or in writing; the right so to do covers all classes of cases cognizable in that court where trial by jury is had.</p>

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

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

<p>Action in case for personal injuries. Appeal from the City Court of Chicago Heights; the Hon. Homeb Abbott, Judge, presiding.</p>

<p>1. Injunctions—what subject to review upon appeal from interlocutory. Upon an appeal from an order granting a preliminary injunction, the Appellate Court is restricted to a review of one question, namely, did the bill state a cause entitling the complainant to the injunction prayed and granted.</p> <p>2. Injunctions—when lie to restrain trespass. A court of equity will not enjoin a trespass unless facts and circumstances are alleged in the bill from which it can be seen that irreparable injury will result from the act complained of, and that there is no adequate remedy at law, or that a multiplicity of suits will result unless equity intervenes and restrains the threatened trespass, or that the trespassers are financially irresponsible and unable to respond in damages to the injured party for the result of the unlawful action threatened.</p> <p>3. Injunctions—when temporary, should not be granted. If the complainant can have no ultimate relief on a hearing upon his bill filed, it is error to grant an interlocutory injunction upon said bill.</p> <p>4. Appeals and ebrobs—when freehold not involved. In an appeal from an order granting a preliminary injunction, it is not the province of the Appellate Court to determine the rights of the parties in the subject-matter of the litigation but simply to decide whether from the averments of the bill the complainant is entitled to the injunction obtained from the chancellor; in such a case, therefore, even though the merits of the controversy may involve a freehold, a freehold is not involved for the purpose of determining the appeal from the interlocutory order.</p> <p>5. Wills—what does not excuse failure to renounce. Renunciation by the widow must be made pursuant to statute within the period of limitation prescribed and a failure so to renounce is not excused by ignorance of the law.</p>

No. 15,705: Bill for injunction. Appeal irom the Superior Court of Cook County; the Hon. A. H. Chetlain, Judge, presiding. Nos. 15,714 and 15,733: Bills in chancery. Appeals from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.

<p>Injunctions—when temporary erroneous. It is improper to grant a temporary injunction if it does not appear from the bill filed that any inference can be drawn of impending danger necessitating a temporary injunction to avert.</p>

<p>1. Negligence—when doctrine res ipsa loquitur applies. Held, that an occurrence which consisted in the sudden blazing out of flame from the controller of a trolley car was of an unusual and unexpected character and such as to bring into application the doctrine res ipsa loquitur.</p> <p>2. Negligence—effect of doctrine res ipsa loquitur. Whenever the doctrine res ipsa loquitur is in play it must be kept continuously in mind that such doctrine merely raises a presumption which presumption yields readily to evidence.</p> <p>3. Negligence—rule as to rebuttal of presumptive, where doctrine res ipsa loquitur applies. The burden upon the defendants when plaintiff has made a case which entitles him to the application of the res ipsa loquitur doctrine, is not satisfactorily to account for the occurrence, but merely to rebut the inference that he has failed to use due care.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding;</p>

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

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

<p>Assumpsit. Appeal from the County Court of Cook county; the Hon. William L. Pond, Judge, presiding.</p>

<p>1. Municipal Court Act—when transcript insufficient for review. An instrument which does not comply with the Municipal Court Act so that it may be regarded either as an actual report of the proceedings in the trial court or as a correct statement of the matters and things essential to enable a review and which is not attested or verified to be either such a report or statement, will be stricken from the transcript.</p> <p>2. Municipal Court—function and construction of statement or report required for purposes of review. A bill of exceptions filed pursuant to the provisions of the Municipal Court Act, like other bills of exceptions is to be treated as the pleading of the party presenting it and to be construed most strongly against such party. In fourth class cases no exceptions are required to be taken to preserve a question for review, and, therefore, no bill of exceptions is essential to obtain such review, but the statement or report provided by statute as a substitute for the bill of exceptions performs the functions of a bill of exceptions and the rules of construction which apply to bills of exceptions are to be applied to such statements or reports.</p> <p>3. Municipal Court—procedure to review judgments of. The manner of reviewing judgments of the Municipal Court being prescribed by statute, to avail of such proceedings the provisions of the statute must be strictly followed.</p> <p>4. Statutory law—construction of, hy implication. Courts may perfect statutory enactments by necessary implications, that is, such implications as may be found to be required in order to carry out the express provisions; but courts may not by implication, intendment or inference, add to or deduct from, or change or vary, the express provisions.</p>

<p>1. Decrees—ivhen hind state notwithstanding not a party. The People of the State are bound by a decree rendered against the city of Chicago with respect to easement rights in real property claimed by such city.</p> <p>2. Degrees—when clerical error disregarded. A clerical error in the decretal part of a decree in describing the real property affected will be disregarded if the true description intended is apparent.</p> <p>3. Decrees—when absence of pleadings does not affect competency. If the absence of the pleadings upon which a domestic decree is founded may be availed of as against its admissibility, a specific objecti'on to their non-production is essential to raise the question.</p> <p>4. Dedication—how question of, determined. The absence of street designations upon a recorded plat of the property in question is not alone sufficient to justify the court in finding against a common law dedication; the entire plat must be considered in determining the intention of the owner.</p>

<p>Appeals and eebobs—when suggestion of diminution may he made after second day of term of Appellate Court. A suggestion, of diminution made after the second day of the term to which the appeal is filed will be considered and acted upon, by the court if the clerk in making up his transcript pursuant to praecipe has not obeyed such praecipe.</p>

<p>Streets—what not, so as to charge municipality for injury occurring upon. The permissive use of a strip of land as a street does not legally constitute it such so as to render a municipality liable to an action for an injury resulting because of the disrepair thereof; in order to charge a city with liability for failure to care for an alleged public street, both dedication and acceptance must be proven.</p>

<p>1. Streets—hoio notice of disrepair of, must be shown. In order to show actual notice to a municipality of the disrepair of a public street, it must appear from the evidence that notice of the defective condition of the sidewalk was brought to an officer or agent of the municipality charged with a duty respecting it. The admission of evidence of notice to an officer or agent not charged with such a duty is error which will reverse even though there was like proof of constructive notice.</p> <p>2. Instructions—when erroneous cannot be cured by other instructions given. An instruction which directs a verdict cannot be aided or corrected by other instructions in the same series.</p> <p>3. Instructions—when upon liability of city for negligence erroneous. An instruction which imposes upon a municipality the duty to use reasonable care and diligence “to keep such sidewalk in good repair and condition” is erroneous as imposing upon such municipality a higher degree of care than the law requires.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.</p>

<p>1. Contracts—what gambling within meaning of statute. A contract of sale and purchase of grain will he held void if it appears that at the time the sale was made it was the intention of both parties that no delivery of the commodity should take place but that the transaction should be settled by adjusting the difference between the contract and market prices.</p> <p>2. Contracts—what not gambling, within meaning of statute. The statute does not prohibit a bona fide contract of sale and purchase of grain for delivery within a future month where the date of the delivery is made at the option of the vendor by the terms of the contract.</p> <p>3. Contracts—what not gambling, within meaning of statute. If either party to a contract of sale and purchase of grain acts in good faith intending at the time of the making of the contract that there would be delivered thereunder a commodity specified, should be received and paid for, the contract will be valid and binding under the law.</p> <p>4. Contracts—burden to establish gambling nature. The burden of proof to show contracts of sale and purchase of grain were in fact gambling transactions is upon the party who asserts the fact, and proof thereof should be required by a clear preponderance of evidence.</p> <p>5. Pledges—what evidence of ownership. A party to whom corporate stock has been endorsed and delivered is thereby vested with the indicia of ownership and a party relying on such apparent ownership and receiving the stock in good faith and for value by way of pledge, will be protected in a court of equity.</p> <p>6. Pledges—what not conversion by pledgee. Held, under the evidence in this case, that there was no unlawful conversion by the pledgee of the corporate stock in question.</p> <p>7. Interest—when properly allowed. Held, that an allowance of interest upon a stock broker’s account was proper, it appearing that prior to the litigation interest had been regularly charged by such broker to the customer and acceded to by him without objection.</p>

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

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

<p>1. Judgments—how joint, revived. If one joint defendant dies, the writ to revive the judgment should run against the survivors and the heirs or personal representatives of the deceased defendant.</p> <p>2. Judgments—who cannot complain of revival. If heirs of the deceased party because of whose death it became necessary to revive a judgment, do not complain of the procedure followed, the surviving party to such judgment cannot complain.</p>

<p>1. Accord and satisfaction—burden of proof. The burden to prove an accord and satisfaction or a release is upon the party-alleging it.</p> <p>2. Torts—when joint tort-feasor not discharged. While a release of one tort-feasor operates to the benefit of all, yet, held, under the evidence in this case, that no release of one joint tortfeasor was established.</p>

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

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

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

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

<p>1. Pleadings—to what time relate. The pleadings in an action at law relate to the commencement, of the action, the same as if all were filed at that time, and the rights of the parties are to he determined by the state of facts as they existed at the time the action was commenced.</p> <p>2. Oedinances—providing for talcing of land for street purposes and for payment therefor construed. An ordinance which provides for the taking of land for the purpose of opening a street and for payment therefor excludes any other method of payment, and if such payment is provided to he in part by property owners benefited, recovery cannot be had of the municipality in an action of assumpsit for the entire cost of such land.</p>

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

<p>This case is controlled by the decision in Mecartney v. Chicago, ante, p. 275.</p>

<p>Wills—rule against perpetuities defined. A perpetuity Is defined to be a limitation taking the property out of commerce for a longer period of time than a life or lives in being and twenty-one years beyond, and in case of a posthumous child, a few months more, allowing for the time of gestation.</p>

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

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

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

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

<p>Damages—what not proof of. An estimate of profits by an interested witness does not constitute such evidence as will support a judgment for damages.</p>

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

<p>1. Passenger and gabbier—when relation established. If a person enters a car at a place where the carrier is accustomed to receive passengers with the purpose of becoming a passenger and has the means with which to pay his fare and intends to pay it, the relation of passenger and carrier is established even without actual payment of the fare.</p> <p>2. Passenger and carrier—obligations of latter. A carrier of passengers is required to exercise the highest degree of care consistent with the practical operation of its road. It is bound to do all that human care, vigilance and foresight can reasonably do consistent with the mode of conveyance, the practical operation of its road and the exercise of its business as a carrier.</p> <p>3. Passenger and carrier—what negligence. If a carrier in entering a switch runs its car with unusual force and speed and with a speed and force highly calculated to overturn or destroy the equilibrium of passengers standing upon the platform and aisle of the car, negligence as a question of fact is established.</p> <p>4. Passenger and carrier—what not contributory negligence. It is not contributory negligence as a matter of law for a passenger compelled to stand in a street car to have a package in each hand.</p> <p>5. Passenger and carrier—when declaration states cause of action. Held, that the first count of the declaration in this case stated a good cause of action predicated upon the negligence of a carrier. Chicago City Ry. Co. v. Jennings, 157 111. 274, and other cases followed.</p> <p>6. Pleading—how legal duty should be shown. A count of a declaration is not bad merely because it incorrectly states the duty of the defendant; the statement of the duty is but the statement of a legal conclusion and is unnecessary. The declaration can state the facts from which the law implies the duty, and if it does so state the facts and the duty appears, it is sufficient.</p> <p>7. Instructions—effect of reference to tad count. An instruction will not reverse merely because it refers to a count of a declaration which does not state a cause of action if there is another count contained in such declaration which does state a cause of action and will support a recovery.</p> <p>8. Measure of damages—when instruction properly limited. Held, that the instruction in this case upon the measure of damages in an action for personal injuries was so limited as not to authorize the jury to fix the amount of the award regardless of legal rules.</p>

<p>1. Corporations—when ultra vires defens'e; when not. The plea of ultra vires may be successfully interposed in a collateral proceeding where the corporation is alleged to have performed an act which it was not under the circumstances authorized to perform. But where the act is a mere abuse or an excessive or improper exercise of the general power which the corporation has, such a plea cannot be successfully interposed.</p> <p>2. Corporations—estoppel as affecting defense of ultra vires. In equity the defense of ultra vires will not be permitted if the effect would he to enable those interposing it who have received a benefit, to escape from the payment of their equitable obligations.</p> <p>3. Corporations—powers. It may be that a corporation has power, irrespective of express authorization, temporarily to invest in good interest-bearing commercial paper funds temporarily idle but which later will be required for corporate purposes.</p>

<p>Petition for widow’s award. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>1. Wills—when deduction of distributee’s share properly made. If a will directs that the amount of a particular note mentioned therein shall be deducted from the share of one of the distributees named in the will, such deduction is properly made regardless of whether such note or a part thereof has at the time of the making of the will been paid. Such being the intention of the testator as shown by the terms of the will.</p> <p>2. Appeals and erbors—what not part of chancery record. The original report of a master in chancery with the original documents attached therto should not be incorporated in the transcript made up for appeal, nor can such report be properly imported into the record by the employment of the vehicle of a certificate-of evidence.</p>

<p>1. Intoxicating liquobs—what indictment charging unlawful sale need not allege. An indictment charging the unlawful sale of intoxicating liquors in anti-saloon territory need not set up the proceedings by which such territory became anti-saloon.</p> <p>2. Intoxicating liquobs—what indictment charging unlawful sale need not allege. An indictment charging the unlawful sale of liquor in anti-saloon territory need not aver that the defendant was not a druggist.</p> <p>3. Intoxicating liquobs—what unlawful sale. If a person receives orders for intoxicating liquors in anti-saloon territory, transmits them to a company dealing in such liquors resident in another county of the state, receives and delivers the liquor in such anti-saloon territory, and in such territory collects the pay therefor, a violation of the statute is established.</p> <p>4. Cbiminal law—when denial of hill of particulars not ground for reversal. In a prosecution charging the unlawful sale of intoxicating liquors in anti-saloon territory, it is not prejudicial error to deny a motion for s. bill of particulars if it appears that the names of the witnesses were on the hack of the indictment and the record furnishes no reason to suppose that the defendant was not fully advised of the acts relied upon for a conviction.</p> <p>5. Pleading—when language of indictment sufficiently technical. Where the language of an indictment is sufficient to inform the defendant with what crime he is charged and to enable the court to ascertain from an inspection thereof that the offense created by statute is committed, it is sufficient.</p> <p>6. Juries—when challenge to array not sustained. An irregularity in the making up of a jury list will not support a challenge to the array so as to bring about a reversal of a conviction if it does not appear that the defendant was prejudiced or that he had exhausted his peremptory challenges or that he was not tried by a fair and impartial jury.</p>

<p>Appeals and errors—when assignments waived. Assignments of error not argued are deemed waived.</p>

<p>Prosecution for unlawful sale of liquor. Error to the County Court of De Kalb county; the Hon. William L. Pond, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Will county; the Hon. Albebt O. Mabshall, Judge, presiding.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Jo Daviess county; the Hon. R. S. Farrand, Judge, presiding.</p>

<p>1. Constitutional law—effect of appeal to Appellate Court. An appeal to the Appellate Court waives the question of the validity of a statute in question.</p> <p>2. Roads and bbidges—when proceedings before supervisors void. After a proceeding in court by which an appeal to supervisors has been adjudged erroneous, such proceedings before such supervisors become a nullity.</p>

<p>1. Juey tbial—when jury in County Court properly formed. Held, that the issuance of a special venire and the summoning of a jury by the County Court was in conformity with section 110 of the County Court Act.</p> <p>2. Jtjby tbiaIj—when prejudice arising from failure to summon jury from body of county does not appear. Held, that it did not appear from the affidavit made the basis of the contention that the jurors who had served were not summoned from the body of the county; also that it did not appear that they were prejudiced and that in view of the absence of such a showing and the failure to exercise peremptory challenges, that no reversal should be ordered.</p>

<p>Forcible detainer. Appeal from the Circuit of Knox county; the Hon. R. J. Grier, Judge, presiding.</p>

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

<p>1. Evidence—when leading questions will not reverse. It is not every leading question which constitutes reversible error. Leading questions may be permitted by the court in the exercise of a sound discretion. Held, in this case, that the exercise of such discretion was not abused.</p> <p>2. Appeals and errors—when assignments of error waived. A point urged by assignment of error on appeal which was not specified in the written motion for a new trial, will not be considered on review.</p>

<p>Mandamus. Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>Contributory negligence—when person in vehicle injured by railroad train guilty of. One who carelessly and recklessly drives his horse against the side of a railroad train regardless of the danger of colliding with a moving train already occupying the street upon which he was driving, is guilty of contributory negligence which will bar a recovery, notwithstanding there may have been negligence on the part of the railroad company.</p>

<p>Action in case. Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.</p>

<p>Prosecution for unlawful sale of liquor. Error to the Circuit Court of Winnebago county; the Hon. Robert W. Weight, Judge, presiding.</p>

<p>1. Mines and Miners Act—limitation as to commencement of action under. Prior to the act of July 1, 1907, the right of action given to the widow of a person killed could be commenced at any time within five years from the accrual of the cause of action.</p> <p>2. Mines and Miners Act—limitation amendment of July 1, 1907, construed. The act of July 1, 1907, providing that actions by the widow of a person killed should be commenced within one year after the death of such person is not retroactive in effect.</p> <p>3. Statutes—when not given retroactive effect. A statute will only be given a retroactive effect when it was clearly the intention of the legislature that it should so operate.</p>

<p>1. Contracts—by whom construed. Whenever on a trial before a jury the meaning of a written contract is brought into question, it is the duty of the court to construe and interpret the contract and to inform the jury what its lawful effect and meaning is.</p> <p>2. Contracts—what considered in construction of. In seeking to ascertain the intention of the parties to a written contract regard will be had to the practical construction, if any, which the parties by their conduct have given to the contract.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Bureau county; the Hon. B. F. Thompson, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Jo Daviess county; the Hon. R. S. Fab-band, Judge, presiding.

<p>Assumpsit. Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.</p>

<p>Action of debt. Appeal from the Circuit Court of Ogle county; the Hon. Richard S. Farband, Judge, presiding.</p>

<p>Judgments, decbees and executions—when property not subject to levy and sale. Held, under the evidence, that there was no such delivery of merchandise to the defendant in the execution as would authorize a levy upon and a sale of such merchandise.</p>

<p>Bill for separate maintenance. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding.</p>

<p>Separate maintenance. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Gbeen, Judge, presiding.</p>

<p>1. Divorce—what sufficient to sustain aTloioance of alimony pendente lite. The merits of the case should not be tried upon the hearing of the preliminary motion for temporary alimony and expense money; all that is required is that it shall appear that the wife has shown by her pleadings a meritorious cause of action and that the suit is prosecuted in good faith.</p> <p>2. Divorce—how allowance of alimony pendente lite determined. There is no fixed rule for the allowance of temporary alimony but it is a matter resting in the exercise of the sound discretion of the court on the facts as presented; it is jus^ that a wife who is prosecuting her suit in good faith should he able to live comfortably and be placed upon an equality with her husband to carry on the litigation; she should be maintained in a condition suitable to the station in life occupied by the parties.</p>

<p>1. Contributory negligence—what not, as a matter of law. It is not negligence per se in Illinois for a passenger to get on or off a slowly moving street car.</p> <p>2. Negligence—tohen sudden starting of car constitutes. If the employes of a traction company in charge of a car knows that a passenger is in the act of alighting or preparing to alight when the car shall reach a proper place for a passenger to alight, then it is negligence suddenly to start the car forward before the passenger has alighted.</p>

<p>Action in case. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding.</p>

<p>1. 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>2. Evidence—competency of contradictory statements. A statement of a witness made out of court, orally or in writing, if contradictory on a material point to his sworn statement as a witness, may be introduced in evidence not as substantive proof of the truth of such statement, but as tending to discredit the witness.</p> <p>3. Evidence—tohen exclusion of contradictory written statement not ground for reversal. The exclusion of a written statement made by a witness out of court though contradictory to his sworn testimony, will not reverse if the witness upon the stand has admitted the making of such statement and the contents of the-same were read to him in the hearing of the jury.</p> <p>4. Damages—when expenditures in endeavoring to effect a cure should not be allowed. In the absence of proof that the expenditures claimed to have been made in seeking to effect a cure were the usual customary and reasonable charges for the services rendered, no allowance will be permitted.</p> <p>5. Instructions—considered as a series. Instructions should be regarded as a series, should be read together and the omissions of one may be supplied by the contents of another.</p>

<p>1. Evidence—when expert testimony competent. Held, that expert testimony -is competent upon the question as to the possible effects upon the health of the plaintiff and his family resulting from the breathing of noxious odors proceeding from a drain.</p> <p>2. Torts—when municipality liable for converting running stream into public sewer. If a running stream is converted by a city into a public sewer by enclosing it and assuming control of it and by appointing officers to keep it in repair, the city will he liable for damages the same as if the sewer were originally an artificial one.</p> <p>3. Torts—extent of liability of joint tort-feasor. A tort-feasor who contributes to an injury is liable for the entire damage resulting from the joint act of all tort-feasors.</p> <p>4. Damages—when instructions limit recovery to evidence. Held, that the instructions complained of in this case properly limited the recovery of the plaintiff to such damages as were shown by the evidence.</p>

<p>1. Jury trial—what appropriate examination of talesmen. In an action on the case for personal injuries, it is permissible for the plaintiffs counsel to inquire of the talesmen as to whether or not they are interested in any casualty company which insures employers of labor against damages for injuries to employes.</p> <p>2. Mines and Miners Act—when report of superintendent not incompetent. The report of the accident in question made by the general superintendent of the mine owner to the state mine inspector pursuant to the statute, is not rendered incompetent by virtue of the fact that it contains statements not required by law to be made.</p> <p>3. Mines and Miners Act—what reports competent. Reports and records of an accident made pursuant to the requirements of the statute are competent evidence against the party making them; if, however, such reports and records contain improper statements likely to be prejudicial to the mine owner, specific objection should be made to such statements in order that the trial court may properly protect such mine owner from resulting prejudice.</p> <p>4. Mines and Miners Act—what not defense to action charging wilful violation. In an action under the Mines and Miners Act charging a wilful violation of the statute, it is not material as to whether or not the defendant in good faith believed that no dangerous condition existed.</p> <p>5. Mines and Miners Act—what not required of mine examiner. Under ordinary circumstances an instruction is erroneous which requires a mine examiner in order to make an examination in good faith, to know what work was still required to he done there—ordinarily a mine examiner is not expected to know what work is to be done in the future, but held, únder the facts of this case, the giving of such an instruction was not reversible error.</p> <p>6. Evidence—when question calls for conclusion. Held, that it was proper to sustain an objection to the following question: “Did you make a sufficient examination at the time to determine if it was in a safe condition?” as such question calls for a conclusion.</p> <p>7. Appeals and errors—what abstract should show. The abstract filed on appeal should show objections and exceptions to rulings complained of; otherwise such rulings will not be considered.</p> <p>8. Conduct of counsel—when alleged improper remarles not ground for reversal. A complaint of the remarks of counsel to be properly urged should show not disconnected sentences objected to, but the entire context should be preserved in order that a fair consideration of the propriety of such remarks may be made.</p> <p>• 9. Instructions—to what reference to declaration applies. A reference in an instruction to a declaration construed to mean a reference to so much of the declaration as was not excluded by the court.</p>

<p>Contracts—when party entitled to abandon and recover profits. If a party has entered into a contract with a board of education to erect a school building, he is entitled to abandon such contract and recover the profits that would have accrued to him from its fulfillment, in the event of the voters of the particular territory in question lawfully determining subsequently to the making of such contract that they will not erect such a school building.</p>

<p>Mandamus. Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibble, Judge, presiding.</p>

<p>Action in case. Appeal from the Circuit Court of Marshall county; the Hon. Leslie D. Puterbaugh, Judge, presiding.</p>

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

<p>1. Appeals and errors—when no questions of law preserved for review. If no propositions of law are submitted to the trial judge to be passed upon and there are no rulings in excluding or admitting evidence to which exceptions were taken, no questions of law are preserved for review in a case tried by a judge without a jury.</p> <p>2. Contracts—what essential to authorize presumption that hoard was given and services rendered without expectation of compensation. Where near relations, by blood or marriage, reside together as one common family, and one of them renders services to another, and such other furnishes him board and lodging or other necessaries or comforts, a presumption arises that neither party intended to receive or pay compensation for the services, on the one hand, or for the board and lodging or other necessaries or comforts, on the other; but such presumption may be overthrown and the reverse established by proof of an express or implied contract, and the implied contract may be proved by facts and circumstances which show that both parties at the time the services were performed, contemplated and intended pecuniary compensation.</p>

<p>Assumpsit. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</p>

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

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

<p>1. Interest—when recoverable upon loan made for indefinite period. Upon a loan made for an indefinite period interest commences to run from the time of the commencement of the suit to recover the principal.</p> <p>2. Corporations—when directors must fix salaries. As to one having knowledge of the by-laws which require that all salaries shall be passed upon by the directors, a salary fixed otherwise than by the directors cannot be recovered of the corporation.</p>

<p>1. Appeals and ebboes—when sufficiency of evidence not saved for review. If the hill of exceptions shown in the transcript contains no certificate by the trial judge that it contains all the evidence, nor any exception to the overruling of a motion for a new trial, nor any exception to the entry of the judgment by the court, the sufficiency of the evidence to support the verdict is not presented for review.</p> <p>2. Appeals and ebboes—what abstract should contain. In the second district by rule of court, the abstract should among other things set out every instruction given, modified or refused, and a failure to observe such rule justifies the Appellate Court in refusing to consider assignments of error predicated upon instructions.</p>

<p>1. Fraternal benefit societies—status of officers of subordinate lodges. The relation of subordinate lodges to the grand lodge of a fraternal benefit society is one of agency and the officers of such a subordinate lodge are the agents of the supreme lodge.</p> <p>2. Fraternal benefit societies—who may waive forfeitures. An officer of a subordinate lodge is empowered, in the absence of by-law, to waive a forfeiture resulting from the failure of the member to pay a premium when due.</p> <p>3. Fraternal benefit societies—when forfeiture waived. If an officer of a subordinate lodge by pre-arrangement with a member credits payment of a premium as made when due, though it was not actually paid, and afterwards accepts payment of such premium and retains the money with knowledge of the fact of the member’s prior death, a waiver of the forfeiture is effectuated.</p>

<p>Separate maintenance. Error to the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding.</p>

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

<p>Pabks—what not within jurisdiction of city. A city which reserves the right to locate in park territory a boulder of” a particular size, cannot, over objection of the park commissioners, erect in such park a boulder of any other size, and with respect to the erection of such a boulder, cannot delegate its authority.</p>

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

<p>Evidence—when confession insufficient to establish corpus delicti. Confessions, unsupported by evidence or by circumstances tending to corroborate the facts contained in such confessions (but on the contrary denied in toto by each defendant), do not constitute prima facie proof of the corpus delicti without which no conviction can be sustained.</p>

<p>1. Bonds—when sureties liable for acts of hold-over. If a treasurer is elected for a period of two years and until his successor is elected and his bond correctly recites the terms of his election, if he holds over after such period of two years and no successor is elected and during such hold-over period makes default, the sureties are liable.</p> <p>2. Bonds—statute concerning suits upon, of public officers, construed. A treasurer of an institution whose trustees are appointed by the governor by and with the advice and consent of the senate and whose property is held in trust for the state, is a public officer within the meaning of section 13 of chapter 103.</p>

<p>Master and servant—when former not liable for injury to latter occurring in freight elevator. If the proximate cause of the injury to a servant was the position which he unnecessarily assumed in the elevator in which he was injured, the master is not liable.</p>

<p>1. Municipal Court—when sufficiency of evidence not subject to review. If the substitute for a bill of exceptions contained in the transcript contains no finding of fact and does not purport to show all the evidence, the Appellate Court will not consider an assignment of error challenging the sufficiency of the evidence to sustain the judgment.</p> <p>2. Evidence—when copy of letter inadmissible. A copy of a letter by one party to an action addressed to the other party thereto, the original of which was not shown to have been mailed or received, is only an ex parte declaration and not admissible in evidence.</p>

<p>Assumpsit. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

<p>Prosecution for criminal libel. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.</p>

<p>Action in- case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Solon Philbbick, Judge, presiding.</p>

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

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

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

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