Volume 152 — Illinois Appellate Court Reports

<p>Action on the case. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>1 Assumpsit. Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>This case is controlled hy the decision in Lassers v. North German Lloyd Steamship Co., 150 Ill. App. 263, and Hasselgren & Co. v. Esser, ante, p. 7.</p>

<p>1. Malicious prosecution—what part of res gestae. In actions for malicious prosecution, as part of the res gestae, the defendant should he allowed to prove all the circumstances out of which the prosecution arose and the various steps taken before the warrant of arrest was issued. Such defendant might prove his own good character as an element to ward off any suspicion that he might have acted without probable cause, and, on the other hand, he might prove the bad character of the accused as some justification for his action and for entertaining the honest belief that such accused was guilty of the offense charged.</p> <p>2. Malicious prosecution—what not competent. Irregular proceedings by the justice before whom the criminal prosecution was initiated are not competent to affect the defendant In an action for malicious prosecution.</p> <p>3. Evidence-—what competent upon direct impeachment. Witnesses who know the party sought to be impeached in the community in which he resides are competent though they do not live in the immediate neighborhood of such party.</p>

<p>1. Chattel mortgages—effect of possession. If a mortgagee take possession under a chattel mortgage, a provision thereof covering stock in -trade becomes effective against third parties whose rights have not attached prior to the taking of such possession.</p> <p>2. Chattel mortgages—when cover after-acquired property. Held, that the language of the chattel mortgage in this cause was sufficiently broad and comprehensive to cover after-acquired property.</p>

<p>Municipal Coxjbt—when hill of particulars in fourth class case sufficient. The bill of particulars in a fourth class ease need only-state the nature of the plaintiff’s demand; it is not essential that it set up the facts showing a cause of action.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. EDWARD DICNER, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Municipal Court—when “statement of facts” not sufficient for purposes of review. A “statement of facts” certified as substantially correct, is not sufficient for purposes of review. The statement of facts should be certified to contain “the facts appearing upon the trial.”</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>Municipal Court—when demand for jury ineffectual. A demand by the defendant for a trial by jury not made in the Municipal Court at the time of entering appearance, is ineffectual as not a compliance with the statute.</p>

<p>1. Pleading—what competent upon rebuttal. A plaintiff may prove his case regardless of the defendant’s theory of defense and is entitled, after the defendant has developed his theory by evidence, to rebut such evidence of the defendant.</p> <p>2. Evidence—how question in rebuttal should be framed. Questions in rebuttal should either be limited to the specific matter sought to be admitted or denied, or else should be so framed as to call for a categorical admission or denial of the specific statement sought to be rebutted.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Vebdicts—when set aside and final judgment rendered. Upon review of a judgment rendered in an action sounding in contract rendered in the Municipal Court in a trial before the court without a jury, the Appellate Court, upon reversing such judgment, will render such final judgment as is called for by the evidence.</p>

<p>Divorce. Error to the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>1. Continuances—how affidavit for, construed. An affidavit for a continuance, like a pleading, is to be construed most strongly against the party presenting it.</p> <p>2. Continuances-—when affidavit predicated upon absence of witness insufficient. An affidavit wherein the affiant merely asserts his expectation or opinion in respect to procuring the presence of an absent witness at the next term of court is not sufficient; the law requires the affidavit to set forth the facts upon which the expectation is based that the witness will be present or that his attendance will be procured.</p> <p>3. Continuances—what affidavit predicated upon absent witness should show. In such an affidavit the affiant should state that what he asserts the absent witness will testify to is the truth or that he believes it to be the truth.</p> <p>4. Continuances—what affidavit predicated upon absent witness should show. Such an affidavit is insufficient if diligence does not appear from the facts sworn to.</p> <p>5. Bastardy—when verdict sustained. Notwithstanding the evidence might justify a determination that another than the defendant was the father of the bastard child, yet the jury having found the other way, the verdict if supported by the evidence will not be disturbed, as the jury, in such cases, are, by statute, made the judges of the credibility of the witnesses.</p>

<p>Bill for accounting. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>1. Insurance—when making of material false statement in application will defeat recovery. If the application, the statements of which are expressly warranted to be true, contain a false statement as to a material fact, a recovery will not be sustained.</p> <p>2. Insurance—effect of receiving policy with copy of application containing false statement attached. If an examining physician has filled in the blanks in the application and such application contains false statements as to material facts, the receiving and retention by the insured of the policy or certificate with a copy of such application attached as a part thereof, is a ratification by the insured of the insertion by the physician of those answers which were in fact given.</p>

<p>Action in case for personal injuries. Error to Municipal Court of Chicago; the Hon William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908..</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwabd A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Bastardy proceeding. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding, Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Action of debt. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. WimiAM N. Gemmile, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

<p>Prosecution for obtaining money by false pretenses. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the- Branch Appellate Court at the October term, 1908.</p>

<p>Wife abandonment. Appeal from the Municipal Court of Chicago; the Hon. Jouu H. N~wcoMER, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cass county; the Hon. Habby Higbee, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. J. A. Cray, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Mandamus. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Evidence—effect where witness is likewise counsel. The court is justified in giving less credence to the testimony of a witness who has likewise actively participated in the trial of the cause.</p>

<p>Appeals awd .erbobs—when questions not preserves. In the absence of a bill of exceptions, errors urged as to the rulings upon the admission and exclusion of evidence and the giving and refusing of instructions will not be considered.</p>

<p>Trespass. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Mandamus. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>1. Appeals and errors—what not essential to save questions for review in proceeding for probate of will. Propositions of law need not be presented nor a motion for a new trial interposed to save for review questions arising upon an application to probate a will.</p> <p>2. Wills—when valid. An instrument which purports to dispose of a portion of the estate of the testator after his death, regardless of its form, is valid and entitled to probate if in accordance with the statute governing the execution of wills.</p> <p>3. Wills—tohen several instruments constitute entire testamentary disposition. Where a testator leaves two or more wills, each of which may be given some effect without denying effect to all the provisions of some of the others, all are entitled to admission to probate, as together constituting the last will of the decedent.</p>

<p>Evidence—when witness not disqualified 6y virtue of interest.' If the pecuniary interest of a witness with respect to the subject-matter of the litigation has teen finally fixed and determined and cannot he affected by the result of the pending action, he is not disqualified to testify.</p>

<p>Quo warranto. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbroxjgh, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Appeals and errors—when absence of evidence upon particular question not saved for review. In order to save for review the question of whether there was any evidence tending to establish a particular issue, a peremptory instruction should be asked with respect to such issue.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the November term. 1908.

<p>Replevin. Appeal from the County Court of Pike county; the Hon. Paul F. Gbote, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>, Assumpsit. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action in case for personal injuries. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1908.

<p>1. Administration of estates—when petition to compel administrator to inventory assets, lies. A petition lies to compel an administrator to inventory property in his hands which he obtained during the lifetime of the deceased.</p> <p>2. Administration of estates—what not essential in proceeding to compel administrator to inventory assets. In such a proceeding the administrator, being a party in interest, is not competent in his own behalf, by virtue of statute, and the court is not required to call and examine him.</p> <p>3. Trial—when party not entitled to jury. In a proceeding to compel an administrator to inventory assets a jury is not required, nor is a party to such a proceeding entitled to a trial by jury.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Action in case for personal injuries. Error to Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>1. Mtoíioipai. Court—how service of summons must he made. Substituted service in forcible entry and detainer cases instituted in the Municipal Court cannot be employed; summons must be served in that court in all actions in manner as required by the Municipal Court Act.</p> <p>2. Jurisdiction—what essential to entry of nunc pro tunc order. A nunc pro tunc order is valid only when made to supply an omission to enter of record an order really made, but omitted from the record by the clerk. When, by expiration of the term or lapse of time, the court has lost jurisdiction, such order should show, and thus preserve in the record, the basis or ground of the jurisdiction for making the particular nunc pro tunc order.</p>

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

<p>Verdicts—when reversed on final judgment. Where the evidence is such as would not sustain a judgment hy the plaintiff, final judgment with finding of facts will he entered in the Appellate Court.</p>

<p>Evidence—effect of general objection. Only questions of materiality are raised by a general objection.</p>

<p>1. Insurance—what not false statement as to occupation. To state in an application for insurance that the applicant has no interest in or connection with the sale or manufacture of beer, is not false, though the applicant is connected with the real estate department of a brewing corporation.</p> <p>2. Insurance—phrase “this year” construed. “This year,” in the question “Has your weight changed this year?” contained in an application for insurance, means one year past and not the preceding months of the then calendar year.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Albert E. Bergland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>1. Accobd and satisfaction—when compromise sufficiently supported. The compromise of a claim for a less sum than its face will he sustained if there was a Iona fide dispute as to the validity of such claim.</p> <p>2. Releases—what sufficient as to sealed instrument. The surrender and cancellation of a sealed instrument is equivalent to a release thereof under seal.</p>

<p>LANDLORD AIqD xsm&ici-'when~ former can',iot hold latter as tenamn,t from year to year by virtue of hold-over. It the landlord has exerci sed his election to hold his tenant for damages on account of his hold-over, he cannot subsequently seek to recover rent upon the theory that he became his tenant for another year under the terms of the old lease. In this case the exercise of the election was set up by certain pleas, to which the replications filed were held improper.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Fabluí Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>1. Contracts—what waives time of performance. Where time of performance is of the essence of a contract, the party who does any act inconsistent with the supposition that he continues to hold the other party to his part of the agreement will be taken to have waived it altogether.</p> <p>2. Contracts—when time of the essence. Time is generally of the essence of mercantile contracts. Time may be of the essence of 8, contract if such is the general effect of the terms as a whole.</p> <p>3. Contracts'—how waiver of provisions may 6e shown. An extension or waiver need not be shown by an express agreement between the parties; it may be established by their acts and conduct with respect thereto. It may be inferred from facts and circumstances sufficiently indicating an intention to waive, and a new consideration is not essential.</p> <p>4. Contracts—when notice of cancellation essential. If a contract for the purchase and sale of merchandise provided for the purchase of a total amount by a specified time, the seller may, after the lapse of such time, waive the purchase of such amount and elect to terminate the contract; if, however, he continue to recognize and fill orders after such time, he cannot thereafter cancel without giving reasonable notice. o</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. A. E. Bergland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>CONTRACTS-how covenants construed as to being conditions precedent or independent. The general rule is that covenants, like any other agreements, should be construed in accordance with the intention of the parties; and where it is doubtful whether the covenant or agreement was intended by the parties to be a condition precedent or an independent covenant or agreement, courts will construe it as an independent covenant or agreement, especially where the defendant has derived some benefit from the contract.</p>

<p>1. Contracts—when for purchase of real estate properly rescinded. A party agreeing to purchase real estate is justified, in refusing to proceed if the abstract furnished does not show a merchantable title in the vendor.</p> <p>2. Real property-—tohen unpaid taxes constitute liens. Held, that the unpaid taxes in question in this case constituted valid existing liens against the real property involved.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

<p>Tort. Error to the Municipal Court of Chicago; the Hon. Akttold Heap, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Action in debt. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Corporations—when foreign cannot maintain action in this state. A foreign corporation not having complied with the provisions of this state regarding foreign corporations doing business in this state cannot maintain an action in this state against another foreign corporation with respect to a transaction which arose outside of this state, although such action is transitory in character—the act of commencing such an action in this state is “doing business in this state” within the meaning of the statute.</p>

<p>1. Measure of damages—in action upon contract for publication of advertisement. Where an advertisement is published in a magazine in accordance with the contract, and the magazine is duly issued and nothing more remains to be done on the part of the publisher, the measure of damages is the contract price.</p> <p>2. Municipal Court—-when final judgment rendered for plaintiff. A judgment for the defendant will be reversed and final judgment rendered in favor of the plaintiff if the action is one sounding in contract, which has been tried by the court without a jury and the evidence shows the plaintiff’s right of recovery.</p>

<p>1. Insurance—when false answers in application constitute defense. Where the benefits to he derived are conditioned upon truthful answers made in the application, proof of the falsity of such answers constitutes a full defense.</p> <p>2. Insurance—what competent upon question of untruthfulness of answers as to condition of sanity. JSeld, competent to show the judgment of a court finding the ‘ applicant insane, contrary to his answers in his application; likewise, held, competent to establish such insanity by the opinions of physicians who saw such applicant during his confinement as an insane patient.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Contracts—when earnest money may he recovered. If a person agrees to purchase real estate, and deposits money to bind the bargain, he may recover such earnest money in the event of the seller being unable to convey to him such a title as he had agreed to convey.</p>

<p>1. Pleading—how decree relied upon should he set up. If a decree is relied upon, the same, or the portion thereof in question, should be set out either in haeo verb a in the pleading or else its substance should be averred.</p> <p>2. Injunctions-—effect to release errors in proceedings at law enjoined. It is not the institution of the suit to enjoin the collection of a judgment at law, but the granting of such an injunction, that operates to release errors in the proceedings at law resulting in the judgment enjoined.</p>

<p>Action of debt. Error to the Municipal Court of Chicago; the Hon. Fbebman K. Blake, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>1. Administration oe estates—effect of appeal from, settlement of guardian’s account. Upon an appeal from a settlement of a guardian’s account the whole matter is up for hearing de novo in the Circuit Court. Such court may approve the guardian’s account as filed or can require the statement of a new account.</p> <p>2. Trial—when error to call jury. Upon an appeal from an order of the court of probate settling a guardian’s account, it is error to proceed by the intervention of a jury.</p> <p>3. Practice—when motion to dismiss comes too late. After a trial and verdict a motion to dismiss based upon acquiescence in the judgment appealed from comes too late, but after reversal and remandment such a motion may be made.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Statute of Limitations—what promise to pay sufficient to remove bar. An unqualified promise to pay a debt, accompanied by a statement of inability then to pay, is sufficient to arrest the running of the statute.</p>

<p>1. Corporations—when foreign cannot maintain action in this state. A contract made in this state by a corporation, without having complied with the laws of this state as to foreign corporations doing business in this state, cannot be sued on in this state, even though after the making of such contract and before the institution of suit thereon or with respect thereto such corporation has complied with such laws.</p> <p>2. Corporations—when foreign cannot maintain action in this state. A foreign corporation authorized to transact business in this state at the time it institutes its action cannot maintain an action for an injunction to prevent the prosecution of a suit at law upon the ground that it is predicated upon a contract obtained by fraud, if such contract was made by such corporation in this state at a time when it had no power to make such a contract or to sue in this state.</p>

<p>1. Liens—when subcontractor barred as against railway company. The lien of a subcontractor being dependent upon service of notice, as required by statute, absence of such notice bars the right to the lien.</p> <p>2. Liens—when subcontractor barred as against railway company. The law does not give a lien to the subcontractor against a railway company until notice is served; all payments to the original contractor up to the service of such notice are rightful; if at the time the notice is served nothing is due the original contractor, and nothing thereafter accrues to him, no recovery can be had by the subcontractor of the railway company.</p> <p>3. Liens—what essential to subcontractor’s right to. Liens of subcontractors can exist only upon the basis of the contract between the owner and the original contractor, and hence, can have no existence, and cannot be decreed when inconsistent with that contract.</p> <p>4. Deoeees—when service by publication does not justify. A personal decree cannot be rendered predicated upon substituted service.</p> <p>5. Pleading—when petition multifarious. Subcontractors having separate and distinct claims cannot join in a single petition to enforce their liens, but answering such a petition waives the point. The proper practice is for a single subcontractor to file a petition and the remainder intervene in the proceeding so instituted.</p>

<p>Action of debt. Appeal from the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Homeb Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. JoHN W. Housron, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Action for malicious prosecution. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Evidence—when offer of proof upon cross-examination improper. An offer to prove a matter upon the cross-examination of a witness is improper if the subject-matter of such offer was not competent upon cross-examination.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>1. Nuisances—what constitute. Held, that a wooden stand erected upon the roof of a building within the fire limits of the city for the use of spectators was a nuisance which it was the duty of the municipality to abate.</p> <p>2. Estoppel—application of doctrine, in pais, against municipality. The doctrine of estoppel in pais applies to municipal corporations only to the extent that it leaves the courts to decide the question by all the circumstances of the case and to hold the public estopped or not as right and justice may require; and it does not apply where a city official has exceeded his authority in issuing a permit in violation of a city ordinance.</p> <p>3. Ordinances—prohibiting erection of wooden stands valid. Held, that the wooden stand erected in this case upon the roof of a building within the fire limits of the city was within the ordinance invoked against it and that such ordinance was not unreasonable and void.</p> <p>4. Commissioner of Public Works—when building permit void. A building permit issued by the Commissioner of Public Works confers no right if such commissioner was without authority to issue it.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>1. Amendments and jeofails—when nunc pro tunc order improper. A court cannot, under guise of amending its record, correct judicial errors or" remedy the effect of judicial non-action.</p> <p>2. Verdicts—when against one defendant will not sustain judgment in action against two. If a verdict is rendered, in an action against two defendants, against one defendant only, without naming such defendant, a judgment predicated upon such a verdict will he set aside and a nunc pro tunc order of discontinuance as to the other defendant will not cure the irregularity.</p> <p>3. Master and servant—burden to show injury not caused by fellow-servant. The burden is upon the plaintiff to show that the injury in suit was not caused by the act or omission of a fellow-servant.</p>

<p>Replevin. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Proceeding by information. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Pasties—when objection to non-joinder of proper plaintiff comes too late. An objection to the non-joinder of a proper plaintiff comes too late when first made on appeal.</p> <p>2. Evidence—right of witness to refresh recollection. A witness has the right to use memoranda made by himself for the purpose of refreshing his recollection.</p> <p>3. Evidence-—when restriction of cross-examination will not reverse. ■ The extent of cross-examination and the latitude to be allowed rest in the sound discretion of the trial judge, and unless such discretion has been abused, a restriction imposed upon the cross-examination will not work a reversal.</p> <p>4. Accobd and satisfaction—what not dispute which will support. An offer to compound a claim by the payment of a lesser sum resulting from the financial stress of the debtor, does not inject the element of dispute, where none before existed.</p>

<p>Mandamus. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Agent—burden of proof to establish authority. The burden is upon the party relying upon an agent’s authority as a basis for recovery, to establish such authority by competent evidence of a certain and specific character.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in this court at the October term, 1908.

<p>1. Municipal Court—power to adopt rules. Section 19 of the Municipal Court Act gave sufficient authority to the Municipal Court to adopt by rules such sections of the Practice Act as to such court seemed advisable, and in so far as such sections may be applicable to the jurisdiction conferred on that court by statute.</p> <p>2. Municipal Court—power to compel filing of affidavit of merits. It is within the power of the Municipal Court pursuant to rules duly adopted to compel the defendant in a fourth class case to file an affidavit of merits, and in default of failure so to do, to render judgment against him.</p>

<p>Creditor’s bill. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1908.</p>

Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Ben. M. Smith, Judge, presiding. Heard in this court at the October term, 1908.

<p>Contracts—when acceptance of proposition completes. A written, proposition may be verbally accepted and the contract constitute a complete contract.</p>

<p>Action on the case. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the October term, 1908.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. M. W. Tuo~IPsoN, Judge, presiding. Heard in this court at the October term, 1908.

<p>1. Verdicts—when upon exercise of ordinary care not disturbed,. Whether the plaintiff at the time of the accident was in the exercise of ordinary care is a question of fact and in the absence of substantial errors of procedure or of erroneous instructions to the jury, the verdict of the jury in this respect if warranted by the evidence will not be disturbed.</p> <p>2. Verdicts—when upon amount of damages not disturbed. It is for the jury to determine the amount of damages which should be awarded for an injury suffered and unless the verdict rendered is not sustained by the evidence, it will not be disturbed.</p> <p>3. Instructions—when erroneous will not reverse. An erroneous instruction will not reverse in the absence of prejudice resulting.</p> <p>4. Evidence—token objection comes too late. An objection to evidence first made on appeal will not avail.</p> <p>5. New trial—effect of granting, as to one joint, tort-feasor. A joint tort-feasor cannot complain of the action of the court in granting to his co-defendant a new trial and denying a new trial as to him.</p>

<p>1. Corporations—who liable under section 18 of act. One who may not have participated in the making of the original contract but who has participated in the transaction involved in such contract out of which the liability accrued, is liable under section 18 of the Corporation Act.</p> <p>2. Corporations'—who liable under section 18 of act. A partnership existing between those pretending to be officers or agents of a pretended stock company, is not essential to the fastening of liability.</p>

<p>Replevin. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Cbeditob’s bills—%oio fraud in conveyance must be established. Fraud must be proven by a preponderance of the evidence and the burden of proof is on the party alleging it; it is not to be inferred from mere suspicion, and mere inadequacy of consideration will not raise a presumption of fraud.</p>

<p>1. Pasties—effect of action by one party for the use of another. The defendant in an action upon an appeal bond cannot complain of the fact that it is brought in the name of The People for the use of the beneficial plaintiff.</p> <p>2. Pasties—when action properly brought for the use of an administrator. An action upon an appeal bond is properly brought in the name of an administrator for the deceased party for whose benefit such bond was given.</p> <p>3. Bonds—what establishes prima facie case upon bond, given on appeal from order refusing to discharge from arrest upon capias. The affirmance of a judgment together with proof of the judgment remanding into custody, with evidence tending to show non-surrender, makes out a prima facie case in an action upon such an appeal bond.</p> <p>4. Bonds—when statute pertaining to bail bonds does not apply. The statute as to suits on bail bonds in civil actions is not applicable to an action upon an appeal bond given for the purpose of reviewing a judgment remanding into custody for arrest upon a capias.</p>

<p>Action of debt. Error to the Municipal Court of Chicago; the Hon. Fbeeman K. Blake, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Forcible detainer. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>1. Master and servant—when doctrine of assumed rislc applies. If the danger which resulted in the injury was incident to the business and employment of the servant and if such danger was equally open to the observation of both master and servant, the master is not liable.</p> <p>2, Master and servant—when not duty to warn inexperienced servant. It is not negligence on the part of a' master to fail to warn an inexperienced employe of increased dangers which are obvious and incident to the service.</p> <p>3. Master and servant—who fetlow-servants as a matter of law. Two laborers, even though one might be regarded as a foreman, held, under the evidence, to be fellow-servants, as a matter of law, where they were constantly working together in the same character of work and where their association in such work was habitual.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Bonds—what essential to liability upon constable’s. Before a recovery can be had upon a constable’s bond for an alleged wrongful seizure, it must be established that such seizure took place subsequently to the execution of the bond and was made by the principal in such bond as a constable under legal process which he had authority as such constable to execute.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. William H. McS onely, Judge, presiding. Heard in this court at the October term, 1908.

Action, in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSurelt, Judge, presiding. Heard in this court at the October term, 1908.

<p>Divorce. Error to the Superior Court of Cook county; the Hon. Albert C. Bashes, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Stjevival of actions—malicious prosecution. By, death of the defendant in an action for malicious prosecution, the action abates and it cannot be revived against the personal representative of such deceased defendant.</p>

Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the October term, 1908.

<p>Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. W. N. Cottrell, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>1. Contracts—when parol evidence incompetent. Evidence of an oral agreement contemporaneous with a written contract in evidence, is incompetent.</p> <p>2. Contracts—when parol evidence competent. A new agreement, though verbal, made subsequent to a written contract, is competent.</p> <p>3. Assumpsit—when voluntary payments cannot he recovered. Money voluntarily paid under a claim of right, and with a knowledge of the facts on the part of the person making the payment or affected by it, cannot be recovered back on the ground that the asserted claim was invalid or unenforceable.</p> <p>4. Trtat.—when plaintiff entitled to open and close. The plaintiff is entitled to open and close the arguments in an action sounding in contract where the. defendant has not withdrawn the plea of the general issue.</p> <p>5. Appeals and errors—when errors will not reverse. If substantial justice has been done by the verdict and judgment in a case, a reversal will not be ordered even if errors have been committed by the court below upon the trial in the admission or exclusion of evidence or in the giving or refusal of instructions.</p>

<p>1. Master and servant—when doctrine of assumed risk does not apply. A servant will not he held to have assumed a risk of which he knew nothing and had no reason to anticipate.</p> <p>2. Master and servant—when question as to whether foreman was acting within scope of his employment should he determined hy the jury. Held, in this case, that it was for the jury to determine whether the foreman in using a hoop for the purpose of drawing the plaintiff (who was a child under fifteen years) away from proximity to dangerous machinery, was acting within the scope of his employment.</p> <p>3. Employment Act—what dangerous to lives of children under sixteen years. Held, that the finding hy the jury should not he disturbed which was to the effect that it was dangerous to' the life of the plaintiif, who was under the age of sixteen years, upon the floor of a bakery in proximity to a machine which might cause injury.</p> <p>4. Instructions—should not ignore counts of declaration. An instruction is properly refused which directs a verdict of not guilty, in ignorement of one of the counts of the declaration of the plaintiff.</p>

<p>Chattel mobtgages—effect of failure of justice to make docket entry. If a justice of the peace makes no docket entry of a mortgage acknowledged before him, it is void as against a third person subsequently purchasing the mortgaged property.</p>

Action commenced before justice of the peace. Appeal from the County Court of Effingham county; the Hon. M. O’Donnell, Judge, presiding. Heard in this court at the October term, 1909.

<p>Roads and bridges—when instruction as to obligation of adjoining towns not erroneous. An instruction as follows, is not erroneous in not specifying the exception which would arise in case a joint agreement had been made to repair or erect a bridge, for the reason that the facts in this case failed to show that there was an express contract between the commissioners of the two townships to keep the bridge in repair and also failed to show conditions from which an implied contract would arise.</p> <p>“The court instructs the jury that the statute of this state does not confer authority upon the commissioners of highways of one town to compel the commissioners of an adjoining town to repair or erect a bridge upon the town line or pay one-half of the cost of such bridge, after it has been constructed or repaired.”</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Hardin county; the Hon. J. R. Cbeighton, Judge, presiding. Heard in this court at the October term, 1909.

Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the October term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the October term, 1909.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the October term, 1909.

<p>1. Common carriers—burden to show assent to terms of shipping contract. In an action to recover for loss or damage to merchandise the burden is upon the carrier to establish the assent of the shipper to the terms of a special shipping contract.</p> <p>2. Evidence—what competent upon market value. In an action to recover for hogs lost in transit, it is competent, as bearing upon the market value of the hogs so lost, to show what was received from the sale of the remaining hogs of the same shipment at the place of destination of the entire consignment.</p>

Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Perry county; the Hon. B. R. Burroughs, Judge, presiding. Heard in this court at the October term, 1909.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Ferry county; the Hon. B. B. Burroughs, Judge, presiding. Heard in this court at the October term, 1909.

<p>Assumpsit. Appeal form the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding. Heard in this court at the October term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1909.

<p>1. Contracts—when certificate of architect not condition precedent to recovery. Any act of the owner under a building contract, which makes the architect’s certificate a condition precedent to payment, which prevents the contractor from obtaining such a certificate, or any act of the owner showing that he has waived such a provision, will release the contractor from the duty of procuring such certificate.</p> <p>2. Contracts—what not essential to recovery under building. A literal compliance with the specifications for a dwelling house is not necessary to a recovery by the contractor, if he has in good faith made a substantial performance thereof.</p> <p>3. Liens—burden to show damage under Mechanic’s Lien Act. Under the Mechanic’s Lien Act the burden of proof is upon the owner to establish what damages, if any, should he allowed in mitigation of the amount claimed hy way of lien.</p> <p>4. Liens—effect of omission of necessary parties to proceeding under the Mechanic’s Lien Act. Only one suit can be maintained under the Mechanic’s Lien Act; all parties having a lien or interest in the premises must be brought together in one suit; if any party is omitted, the suit will be dismissed for want of necessary parties.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1909.

Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Motees, Judge, presiding. Heard in this court at the February term, 1909.

<p>1. Wills—when distribution will be per capita. When the division is among a named class, such as heirs, heirs-at-law, legatees, or children and grandchildren, étc., the distribution is to be made per capita when the words, “equally,” “equal among,” or “share and share alike,” or other similar words are used to indicate an equal division, unless a contrary intention is discoverable from the will.</p> <p>2. Wills—when presumption in favor of per capita distribution rebutted. The presumption in favor of a per capita distribution yields readily in favor of a faint indication of the testator that the distribution shall be per stirpes.</p> <p>3. Wills—how to be construed. The cardinal principle in construing a will is to ascertain the intention of the testator. In no case is a court bound to confine itself to a single clause of the will and the language therein found to ascertain the testator’s intention as expressed in that particular clause; but the intention of the testator will be derived from a view of the whole will and of all its parts.</p> <p>4. Wins—when distribution will be per stirpes. Held, from the language of the particular will in construction as an entirety, that the distribution of the residue of the testator’s estate in question should be per stirpes.</p> <p>5. Wills—how words indicating equality of division are applied. Words indicating equality of division, such as “to be divided equally,” etc., do not necessarily mean a per capita equality, but they apply just as readily and appropriately to a per stirpes equality.</p> <p>6. Wills—how words of doubtful meaning construed. Words of doubtful meaning should be construed so as to harmonize with the plan or scheme of the testator, and where they are susceptible of two constructions that construction should be adopted which is most favorable to the heir nearest in relationship to the testator, and so as not to result in discrimination.</p> <p>7. Wills—how words occurring more than once construed. Words occurring more than once in a will are presumed to be used always in the same sense when the context does not show a contrary intention.</p>

Petition for writ of assistance. Appeal from the Circuit Court of Massac county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the October term, 1909.

<p>Bills of review—when newly discovered evidence will not sustain. Alleged newly discovered evidence cumulative in character and not of an important and decisive character will not support a hill for review predicated upon newly discovered evidence.</p>

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Moetimeb Mjxlaed, Judge,- presiding. Heard in this court at the October term, 1909.

<p>Action for slander. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Assumpsit. Appeal from the Circuit Court of Richland county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Proceeding by information. Error to the Circuit Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding. Heard in this court at the. October term, 1909.</p>