Volume 155 — Illinois Appellate Court Reports

Action in case for personal injuries. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1909.

Action commenced before justice of the peace. Appeal from the County Court of Pulton county; the Hon. John D. Bbeckenbidqe, Judge, presiding. Heard in this court at the May term, 1909.

<p>Custody of childben—how question determined. Where the parents of a child have been divorced and an application is made for a change in the decree awarding the custody of the issue of the marriage, the best interests of the child are the main consideration in determining the question involved.</p>

<p>1. Accord and satisfaction—what does not constitute. The retention of a voucher check containing a receipt in full does not constitute an accord and satisfaction if the check is not endorsed.</p> <p>2. Variances—when objection comes too late. An objection of variance first made in the Appellate Court comes too late.</p>

<p>1. Pleading—when replication confesses averments of plea. A replication which does not traverse matters of fact alleged in a plea is taken to have confessed the same.</p> <p>2. Fraternal- benefit societies—how incontestable clause construed. An incontestable clause which is.made a part of a benefit certificate should be liberally construed in favor of the beneficiaries of the insured.</p> <p>3. Fraternal benefit societies—when incontestable clause precludes defense of suicide. The language of the incontestable clause in the certificate in issue in this case as follows: “When certificates of membership shall be in force for two years they shall be incontestable for any cause except for violation of the constitution and laws of this order, or a failure to pay the assessments for the benefit and general fund as provided by the law,”—excludes the suicide of the insured as a defense to an action on such certificate.</p> <p>4. Fraternal benefit societies—when incontestable clause operative. If a certificate is issued which after two years is incontestable, a change of beneficiaries, followed by the issuance of a new certificate, does not start afresh the running of the limitation period.</p>

<p>Appeal from the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the May term, 1909.

<p>1. Evidence—what competent upon question of adultery. Letters written by an alleged paramour are not competent against a person charged with adultery but letters written by the person so charged to such paramour, showing an affectionate disposition toward him, are competent.</p> <p>2. Divobce—what essential to establish adultery. It is not necessary to prove the direct fact of adultery and in almost every case the fact is to be inferred from circumstances but the circumstances must be such as naturally to lead the mind to a belief of the fact by fair inference, as a necessary conclusion.</p>

<p>Action in case. Appeal from the Circuit Court of Edgar county; the Hon. J. W. Cbaig, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Assumpsit. Appeal from the Circuit Court of Macon county; the Hon. William; C. Johns, Judge, presiding. Heard in this court at "the May term, 1909.</p>

<p>Action in case. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action commenced before justice of the peace. Appeal from the County Court of Douglas county; the Hon. Waiter J. Dodson, Judge, presiding. Heard in this court at the May term, 1909.

<p>1. Practice—section H of Act construed. Section 14 of the Practice Act giving the plaintiff the right to proceed to trial and judgment against one or more defendants served with summons and •subsequent proceeding by sci fa, applies to resident as well as to non-resident defendants.</p> <p>2. Alteration op instruments—when judgment competent. Held, that the judgment offered in this case, notwithstanding a certain interlineation and erasure, was competent.</p> <p>3. Costs—how proof of, may he made. Held, in this case, that the admission of the fee book of the clerk wherein certain items of fees and costs were taxed, was competent; likewise, that parol testimony as to the payment of certain costs by one of the plaintiffs was properly admitted.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Coles county; the Hon. James W. Cbaig, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Christian county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the May term, 1909.

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

<p>Eminent domain—when city liable for changing grade of street; when not. A city or village may, in its discretion, make any reasonable change in the grade of a street, and its act is not wrongful even though private property is thereby damaged; but any change which obstructs access to such property is a damage for which the owner is entitled to compensation under the constitution.</p>

Prosecution for unlawful sale of intoxicating liquor. Error to the Circuit Court of Edgar county; the Hon. O. P. Thompson, Judge, presiding. Heard in this court at the November term,' 1909.

<p>Chancery—jurisdiction to authorise renunciation. A court- of chancery has jurisdiction, upon petition by a conservator of an insane widow, to authorize and direct such conservator to renounce on behalf of such widow the provisions of a will made by her husband.</p>

<p>Assumpsit. Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding. Heard in this court at the November term, 1909.</p>

Action in case for personal injuries. Appeal from the City Court of Pana; the Hon. Josiah P. Hodge, Judge, presiding. Heard in this court at the May term, 1909.

Prosecutions for unlawful sale of intoxicating liquor, etc. Error to the Circuit Court of Coles county; the Hon. James W. Cbaig, Judge, presiding. Heard in this court at the November term, 1909.

Action commenced before justice of the peace. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the November term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1909.

<p>1. Negotiable instruments—what essential to establish liability of endorser. In order to hold an endorser a promissory note must be presented to,the maker before maturity, demand made for payment, and if dishonored, notice thereof given to the endorser.</p> <p>2. Judgments—when affidavit presented upon motion for leave to plead to judgment entered by confession, sufficient. Even though the facts set out in such an affidavit are not averred with the same detail and certainty requisite in formal pleading, yet such an affidavit is sufficient if it sets out enough facts to establish á prima facie defense.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Edgar county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1909.

<p>Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Schoebteed, Judge, presiding. Heard in this court at the November term, 1909.</p>

<p>1. Instructions—must not give undue prominence to particular evidence. An instruction should not point out portions of the evidence or particular facts and circumstances and thereby give them undue prominence; by so doing an instruction is liable to mislead the jury.</p> <p>2. Instructions—when erroneous will not reverse. An erroneous instruction will not require a reversal if the court can see from the facts that the judgment is just and proper and that no other verdict can be returned or rendered upon another trial of the cause.</p>

<p>Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1908.</p>

<p>Negotiable instruments—extent of liability of endorser. An assignor of a negotiable instrument is liable for the face of the note with interest and all damages that may be occasioned by the assignee in prosecuting the makers to insolvency; and the amount of the assignee’s recovery, as against the assignor, is the judgment, with accrued interest, and the cost of reducing that note to judgment.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Macon county; the Hon. Orpheus W. Smith, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. Myers, Judge, presiding. Heard in this court at the May term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Mtebs, Judge, presiding. Heard in this court at the May term, 1909.

Contested claim in court of probate. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.

Appeals and bbrobs—what not final order. An order of the court overruling a demurrer is not a final judgment and no appeal can he taken therefrom. Assumpsit. Appeal from the Circuit Court of Cass county; the Hon. Guy W. Williams, Judge, presiding. Heard in this court at the May term, 1909.

<p>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>

Action commenced before justice of the peace. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the November term, 1908.

<p>Scire facias. Appeal from the County Court of De Witt county; the Hon. Feed C. Hill, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1909.

Action in case for personal injuries. Appeal from the City Court of Pana; the Hon. Josiah P. Hodge, Judge, presiding. Heard in this court at the November term, 1909.

<p>Practice—section IS of Act construed. The word “non-residents” in section 13 of the Practice Act governing service of summons upon co-partnerships, applies to non-residents of the county in which the suit is brought and is not restricted to non-residents of the State.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Vermilion county; the Hon. E. R E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.

Action commenced before justice of the peace. ■ Appeal from the ■Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1909.

<p>Bill in chancery. Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>1. Cities, villages and towns—estoppel to deny records. To permit the record made by a township treasurer of his acts or doings as such treasurer to be varied or contradicted by him by parol testimony, would be a positive and direct violation of the rules laid down by the Supreme Court of this State.</p> <p>2. Cities, villages and towns—when township treasurer liable upon bond. If a loan of township funds is made contrary to the statute the township treasurer is liable upon his bond and this notwithstanding he was advised or directed by the trustees to enter into the transaction in question.</p>

<p>Prosecution for wife abandonment. Error to the County Court of Ford county; the Hon. H. H. Kerr, Judge, presiding. Heard in this court at the May term, 1909.</p>

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

<p>Assumpsit. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochean, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Assumpsit. Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1908.</p>

<p>1. Common carriers—obligation to deliver merchandise. If a carrier delivers to any other than the true owner it does so at its peril.</p> <p>2. Common cabbiebs—what cannot be set-off against claim arising for wrongful delivery. If a carrier is liable for the wrongful delivery of merchandise transported by it, it cannot set-off against its liability a claim against the plaintiff assigned to it after suit brought</p>

<p>1. Separate maintenance—when lies. Unjust accusations by a husband of undue intimacy on the part of his wife with other men and a continued repetition of such accusations is sufficient and adequate grounds to support a bill for separate maintenance.</p> <p>2. Separate maintenance—what does not bar right. The signing of a contract by a wife by which certain property interests are adjusted between her and her husband, does not bar a right to separate maintenance.</p> <p>3. Separate maintenance—when award of alimony not excessive. An allowance of $20 per month, held, not excessive where it appeared that the husband was possessed of a farm of the value of eight or nine thousand dollars, encumbered for $3,500, and was also possessed ■of personal property of the value of two or three thousand dollars, was able-bodied and capable of earning a good living.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the May term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Fayette county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the February term, 1909.

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

<p>Evidence—Tioio preponderance determined. While a jury should not wilfully disregard the testimony of witnesses and should take the number of witnesses into consideration, with all the other facts and circumstances in evidence, in determining where the preponderance lies, yet it is for them, who see the witnesses upon the stand and hear their testimony, to determine in ease of conflict, where the truth lies.</p>

<p>1. Appeals ahd ebbobs—effect of absence of certificate of evidence. If there is no certificate of evidence in the record of a chancery cause, the Appellate Court can only consider those matters which appear from the pleadings and the orders and the decree.</p> <p>2. Wills—when real estate treated as personal property. Where a will directs real estate to be sold and the proceeds divided, chancery will apply the doctrine of equitable conversion and treat the gift as one of personal property.</p> <p>3. Wills—how question of vesting of title determined. In deter- . mining the question when an interest in property devised by will vested, the intention of the testator must be ascertained from the whole will.</p> <p>4. Wills—when remainder vests. Where a will devising real estate creates a life estate therein with remainder over to devisees-in the will, the remainder vests in the devisees at once upon the death of the testator. Meld, in this case, that this rule applied notwithstanding the premises in which the life estate was created were directed to be sold after the death of the life tenant and the proceeds divided.</p> <p>5. Wills—how trusts to be executed. Where a testator orders his real estate sold without saying who shall sell, a trust is created, and in such a case a court of equity will declare who is the proper party to execute such trust, or if no one is designated it will proceed to execute the trust by its own authority and direct a sale of the laud.</p> <p>6. Administration of estates—what not within power of administrator with will annexed. Even where a testator by his will appoints an executor and provides that he shall sell real estate and distribute the proceeds, the duties imposed are in the nature of a personal trust or confidence and do not devolve upon an administrator with the will annexed.</p>

<p>1. Instructions—when cannot he complained of. A party cannot be heard to complain that the opposite party has given instructions upon the same theory of the law that it itself has adopted in its .instructions to the jury as controlling the case.</p> <p>2. Insurance—when proofs of loss waived. Proofs of loss are waived where it appeared that the company’s agent was notified of the loss, the company’s adjuster came, inventories were made, offers of compromise submitted and rejected and formal arbitration entered into followed by an award.</p> <p>3. Evidence—when transcript of testimony of deceased witness incompetent. In an action to recover for an insurance loss the testimony of a deceased witness which was given in a criminal prosecution for arson is not competent in support of a defense predicated upon a charge of arson because of the lack of identity of parties.</p>

<p>Mechanic’s lien. 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>Action in debt. Appeal from the Circuit Court of Marion county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action of debt. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>Trover. 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.</p>

Action for damages under section 9 of Dram-shop Act. Appeal from the Circuit Court of Randolph county; the Hon. Charles T. Moore, 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. Charles T. Moobe, Judge, presiding. Heard in this court at the October term, 1909.

<p>1. Evidence—when view of premises properly allowed. Meld, in this case, which was an action to recover damages for the alleged wrongful flooding of the premises of the plaintiff, that it was proper for the court, at the request of all parties, to permit a view of the premises in question.</p> <p>2. Appeals and ebbobs—when assignment deemed waived. Questions not raised in the original brief are deemed waived and will not be considered when raised for the first time in the reply brief.</p> <p>3. Torts—when joint action against several tort-feasors cannot he-maintained for wrongfully flooding. A joint action cannot be maintained against several tort-feasors for the flooding of the property of the plaintiff where each of such tort-feasors has acted in doing the work in question independently of each other.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. C. T. Moore, Judge, presiding. 'Heard in this court at the October term, 1909.

Action commenced before justice of the peace. Appeal from the City Court of Bast St. Louis; the Hon. Mortimer Mxlpabd, Judge, presiding. Heard in this court at the October term, 1909.

Charles T. Moore, Judge, presiding. Heard in this court at the October term, 1909. Statement by the Court. This appeal was taken, from a judgment of the Circuit Court of Randolph county in favor of Sparta Gas & Electric Company against The Illinois Southern Railway Company, for $1,248.51.

<p>Error to the County Court of White county; the Hon. John A. Lopp, Judge, presiding. Heard in this court at the October term, 1909.</p>

Prosecution for unlawful sale of intoxicating liquors. Error to the County Court of Franklin county; the Hon. Thomas J. Myebs, Judge, presiding. Heard in this court at the October term, 1909.

Foreclosure. Error to the Circuit Court of Wayne county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the Octoher term, 1909. Statement by the Court.

Action commenced before justice of the peace. 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 City Court, of East St. Louis; the Hon. W. J. N. Movers, 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 Marion county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the October term, 1909. Statement by the Court.

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. Statement by the Court.

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

Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the October term, 1909. Statement by the Court.

Action in case for personal injuries. 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. R. D. W. Holder, Judge, presiding. Heard in this court at the October term, 1909.

<p>Bastardy. Appeal from the County Court of Madison county; the Hon. J. E. Hellskotter, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Perry county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the October term, 1909.

Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the October term, 1909. Statement by the Court. This appeal is by The American Insurance Company from a judgment taken by default by W. D. Fry, Martha E. Branson, Robert Branson and Matthew Branson against appellant in the Circuit Court of Marion county for the sum of $2,107.92.

<p>1. Instructions—when upon burden of proof erroneous. If the burden is upon the plaintiff upon the whole case to show such a state of facts as will authorize him to recover, it is error for the court to instruct the jury in substance that it is incumbent upon the defendants to establish by a preponderance of the testimony the truth of the defense which they have pleaded.</p> <p>2. Alteration of instruments—burden of proof to establish. After proof by defendants tending to show alteration, the burden of proof on the whole case is then upon the plaintiff to show that no such alteration was made or that it was made with the consent of the defendants or that they ratified the same.</p> <p>3. Evidence—when improper should be excluded. It is error for the court to refuse to exclude improper and irrelevant evidence at any time on motion to exclude, before argument, although not objected to when offered.</p> <p>4. Evidence—what not competent to impeach. It is not competent to impeach a witness by showing that the reputation of such witness “for honesty and prompt payment of debts in the community in which he lived” was bad.</p>

Assumpsit. Error to the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908. Statement by the Court. Plaintiff’s deceased husband was, in his lifetime, a member of the defendant fraternal benefit association.

<p>1. Evidence—when question incompetent as catling for a conclusion. A question as follows is incompetent as calling for a conclusion: “Mr. Willard, what services were you to perform for the salary paid to you by the Pan Handle Railroad—the defendant company?”</p> <p>2. Contracts—when compensation in excess of salary cannot he recovered. If a contract upon a salary basis for legal services to be rendered in certain territory is shown, the burden is upon the claimant to show that it was the intention of the party that certain services rendered within such territory were not rendered under the salary arrangement before extra compensation can be obtained therefor.</p>

Petition for citation. Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Statement by the Court. Defendant in error, plaintiff below, now moves the court to strike from the record the “Statement of Facts and Questions of Law” and that these proceedings in error be dismissed. The record in this cause is a praecipe record.

<p>Appeal from the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding. Heard.in the Branch Appellate Court at the March term, 1910.</p>

Action of deceit. Appeal from the Superior Court of Cook county; the Hon. R. W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Statement by the Court. Jesse S. Young, the only defendant served in this cause, entered into a copartnership with his co-defendants Black and Coy under the firm name of Henry M. Black & Co., for the purchase and sale of stocks, promoting companies and a general brokerage business.

<p>Redemption—when HU graying sufficient. Held, that the bill in this case, which was to redeem from a deed absolute, was sufficient notwithstanding certain allegations which it was urged tended to show that such deed was made for the purpose of hindering creditors.</p>

Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pickney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908. - Statement by the Court. Oak Park avenue in Oak Park, Cook county, Illinois, a street running north and south, is crossed at or near grade by two tracks of the elevated railroad and 30 feet north thereof by two tracks of the defendant railroad.

<p>Forcible detainer. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Action of debt. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John A. Gbay, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908. Statement by the Court. Katy Truty,- appellee,, brought this action against Spaulding & Merrick, appellant, to recover damages for injuries sustained by her on February 26, 1904, while working for the defendant in its tobacco factory in Chicago.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>1. Judgments—what does not affect lien upon leasehold interest. Held, that the judgment in this case constituted a lien upon a leasehold interest of the defendant and that hy the sale and ensuing conveyance hy the sheriff the judgment plaintiff became vested with the legal title to such leasehold estate and, that the surrender of his leasehold interest by the defendant in such judgment did not affect the rights of the judgment plaintiff.</p> <p>2. Appeals and errors—what may he availed of on rehearing. If the appellee has misled the court by a statement in his brief he cannot thereafter question the right of the appellant upon petition for rehearing to call attention for the first time to the misstatements by which the court has been misled.</p>

<p>1. Pensions—who entitled to benefits under Police and Firemen’s Relief Fund Act of 1877. Nothing in the act above as amended in 1879 prevented a fireman or policeman who had been discharged from obtaining a pension under such Act if he had theretofore served ten years.</p> <p>2. Pensions—what not default in payment of assessments. The act of 1879 amending the Police and Firemen’s Relief Fund Act of 1877 providing for the payment of assessments by policemen and firemen after retirement provided that such assessments should be fixed and notice thereof given and until such assessments had been so. fixed and such notice given there could be no default with respect to the payment of assessments.</p> <p>3. Pensions—when right not barred by limitation or laches. None of the laws respecting pensions for retired policemen and firemen fix a time within which applications for pensions must be made and even a delay of twenty years does not bar the right nor does the doctrine of laches apply against the right, as any who may have failed to make application have themselves been the largest sufferers.</p> <p>4. Pensions—section 9 of act of 1887 construed. The words “now entitled” in the saving paragraph of the .act of 1887 known as section 9, include not only those who were at such time actually in re ceipt of pensions but those who were entitled upon application te obtain them.</p> <p>5. Pensions—act of 1907 construed. The act of 1907 did not re peal or in any way affect section 9 of the act of 1887.</p> <p>6. Pensions—appropriate remedy to prevent dissipation of funds. Where the controversy does not arise directly with those in control of the funds but is between future beneficiaries thereof and those claiming the right of participation therein, an injunction may be granted to prevent the payment of pension funds to such claimants if they are not legally entitled thereto,</p> <p>7. Pensions—powers of trustees of funds. When acting within the power and authority conferred upon it by the statute the board of trustees has full discretion and its acts are final and binding. But it is not vested with unlimited power and discretion in deciding who is entitled to a pension for the reason that the qualifications therefor are fixed by the statute itself. The power of the board must be exercised within the authority conferred by the statute and in accordance with its provisions.</p> <p>8. Pleading—when bill not multifarious. A bill to restrain unlawful participation in a pension fund is not multifarious in joining as co-defendants all parties who are attempting to obtain possession of any part of the trust fund through the illegal action of the trustees of the fund. The fact that the defendants to the bill claim under distinct titles does not alter the situation.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodohe Bbentano, Judge presiding. Heard in the Branch Appellate Court at the October term, 1908. On consideration of a motion of appellant, the court of its own motion vacated the order of affirmance of May 3, 1910, and ordered that the judgment of the Superior Court be affirmed with a findng of facts, May 13, 1910. Statement by the Court.

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Geobge W. Patton, Judge, presiding. Heard in the Branch Appellate Court at the 'October term, 1908.</p>

<p>Assumpsit. Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Forcible detainer. Error to»the Municipal Court of Chicago; the Eon. Michael F. Gibtkst, Judge, presiding. . Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Contracts—effect of trade custom. When a trade, business or professional custom is involved, such custom is not considered to have entered into the contracts of others than those in the particu- ■ lar trade, business or profession, those shown to have had actual knowledge of the custom and those shown to have had previous transactions or a course of dealings of such nature that knowledge, -on their part, of the custom may be presumed.</p> <p>2. Contracts—effect of local custom, When a territorial or local custom is involved it is regarded to have entered into the contracts of those domiciled in the locality and perhaps of those who are permanently engaged in business in the locality where the custom exists.</p> <p>3. Contracts—how Knowledge of custom established. Facts and circumstances may be shown which raise a presumption of knowledge of the existence of a custom alleged to have been a part of the contract.</p> <p>4. Contracts—what customs affect. A usage or practice, in order .to have a standing in law as a custom, must be uniform within some sphere; it must also be long established and generally acquiesced in.</p> <p>5. Contracts—what rules do not amount to customs. The rules and enactments of voluntary organizations in a business, trade or eccupation, such, for instance, as the American Institute of Architects, are neither law nor custom and cannot be permitted to have the force and effect of such upon the community. They are valid and binding upon their members but cannot, as such rules and enactments, be made use of in courts to affect the rights of others than the members.</p> <p>6. Architects—appropriate method of proving value of services of. In order to show the value of architect’s services evidence should be adduced of the usual and customary charge for the particular services described and detailed.</p>

<p>Pledges—rights of purchaser. Where a borrower to secure the redemption of his debt pledges his own note and mortgage of a greater face value than the amount of the particular obligation and by the pledge agreement authorizes the pledgee to sell the note and mortgage upon default in payment of the principal note and the pledgee does so sell in good faith to a purchaser having full knowledge of all the facts, such purchaser takes the note and mortgage with the right to enforce the mortgage either at law or in equity only for the amount for which such note and mortgage were originally pledged with interest, costs and attorney’s fees.</p>

<p>Quo warranto. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

Assumpsit. Appeal from the Circuit Court of Cook county; the-Hon. Lockwood Honobb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908. Statement by the Court. The plaintiff brought this-action to recover as beneficiary $1,000 on a certificate-issued February 23, 1904, to her son, George O. Boening, by a society known as the American Fraternal League.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908. Statement by the Court. This appeal is from a judgment of the Superior Court in favor of Antoni Nowakowski, plaintiff, and against the appellant, Gr.

Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908. Statement by the Court. This appeal is taken to reverse a judgment entered on a verdict returned for the plaintiff in an action to recover damages resulting from the alleged negligence of the defendant causing the death of Michael J. 0 ’Donnell.

Bill to dissolve partnership, etc. Appeal from the Superior Court of Cook county; the Hon. Faklin Q. Ball, Judge, presiding. Heard in this court at the October term, 1908.

<p>1. Slander—what proof of words spoken sufficient. In an action for slander the plaintiff “must prove enough of the words to amount, to the substance of the charge;” otherwise expressed, the words alleged to constitute a slander must be substantially proven which does-not necessarily mean that equivalent words will suffice but substantially the very words charged as constituting the slander for which the action is brought to recover damages must be proven.</p> <p>2. Instructions—when refusal of correct unll not reverse. If the substance of a correct instruction is embodied in another instruction given, its refusal will not reverse.</p> <p>3. Variances—when objection for comes too late. An objection of variance not brought to -the attention of the trial court at any time comes too late.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Ttjthill, Judge,, presiding. Heard in this court at the March term, 1909.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Eton. Oscab E. Heabd, Judge, presiding. Heard in this 'court :at the March term, 1909.</p>

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

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the October term, 1908.</p> <p>Statement by the Court. Plaintiff brought in the Circuit Court an action on the case against the City of Chicago and the receivers of a certain street railway company to recover for personal injuries alleged to have been sustained by him through the negligence of the defendants.</p> <p>The first count of the declaration alleged that the City of Chicago was possessed and had control of Orleans street, a public street, etc.; that said receivers were in possession of a double track street railway in said street; that the defendants negligently, etc., suffered and permitted a large, deep and dangerous hole to be and remain in said street and in the paving of said street along and adjacent to said railway tracks and on the right of way of said railway at or near the north intersection of said Orleans street and Indiana street; that the defendants knew of the existence of said hole for a sufficient time to enable them to repair the same by the exercise of reasonable care, etc.; that by reason of such negligence while plaintiff was driving a team and wagon on Orleans street at the place, etc., in the exercise of due care, etc., one of the wheels of his wagon dropped into said hole and thereby he was thrown from the wagon to the ground, run over by the wagon and injured, etc.</p> <p>The second count repeats in substance the allegations of the first and further avers that said receivers were in possession of said railway under and by virtue of an ordinance of the city of Chicago granting to them a franchise to maintain said tracks in said street and providing that said receivers should maintain paving on said street and “should keep sixteen feet in width where a double track should be laid in good condition and repair,” etc., and averring that the hole was within the said sixteen feet. The defendants pleaded not guilty.</p> <p>The defendants offered no evidence. After plaintiff rested he, by leave of the court, filed an amendment to his declaration dismissing the first count as to the sole surviving receiver, and amending said count by striking out the allegation that the hole mentioned in said count was “within and upon the right" of way of said railway.” The common law record states that “thereupon the defendant city of Chicago enters herein its plea of the statute of limitations,” and that plaintiff’s demurrer to said plea was sustained; but there is no such plea in the record. The jury by direction returned a verdict finding the defendant receiver not guilty. The cause was submitted to the jury on the issues joined between plaintiff and the city of Chicago and a verdict returned finding the defendant city guilty and assessing plaintiff’s damages at $8,500. The court denied the motion of the city for a new trial, and from a judgment on the verdict the city prosecutes this appeal.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwett, Judge, presiding. Heard in this court at the October term, 1908. Reversed and remanded.

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. John A. Ghat, Judge, presiding. Heard in this court at the October term, 1908.

<p>Attachment. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Action of deceit. Appeal from the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding. Heard in this court at the October term, 1908.</p>

Verdicts—when not disturbed. A verdict will net he set aside on review as against the weight of the evidence unless clearly and manifestly so. Action on the case. Appeal from the Superior Court of Cook county; the Hon. (Marcus Kavanagh, Judge, presiding. Heard in this court at the. October term, 1908.

<p>. Interest—when allowance appropriate in action ufion surety bond. If -an administrator has been found indebted to an estate and has been ordered to turn over the amount of his indebtedness and fails so to do, in an action against the surety upon the bond of such administrator interest should be allowed from the time of his default.</p>

<p>Action in case for personal injuries. Appeal from the 'Superior Court of Cook county; the.Hon. Marcus Kavanaqh, Judge, presiding. Heard in this court at the October term, 1908.</p> <p>Statement by the Court. This is an appeal from a judgment for $1,500 against the defendant in an action for personal injuries.</p> <p>The declaration, which contains six counts, avers in substance, first, that the defendant in violation of duty neglected and failed to stop its cars a reasonable length of time at the station to enable plaintiff to board the same with safety, but when plaintiff was in the act of boarding the car and using due care for his own safety defendant caused said car to be suddenly started, throwing defendant against the station platform; and second, that while plaintiff was boarding the defendant’s car the defendant by one of its servants pushed plaintiff with great force arid violence, causing him to be thrown off the car with great violence to and against the platform of the station.</p> <p>The accident in question occurred about March 15, 1903, at the defendant’s elevated station at 12th street, Chicago. The first of plaintiff’s witnesses testifies that he was riding in the smoker of the train, consisting of two cars, in connection with which the accident occurred; that he saw a man get on the back platform ■ of the smoker at the 12th street station and another man right behind him getting on, and that just as the last of the two men was getting on the conductor “pushed the gate in front of him and pulled the bell and the car started, and Mr. Man was hanging on the car;” that the conductor “stood right still and didn’t do a thing;” that when the train reached the rail “at the north end of the platform the man was pushed off and fell to the area way below; that the train was stopped and backed up and the man picked up. ” On • cross-examination he says “the man was on, he had one foot on the platform of the ear and then the gate was closed in front of him. It was the right foot. I saw the conductor close the gate against Mr. Plutschow. I did not see it touch him anywhere. The gate was closed. As far as being absolutely closed I cannot say. It was closed for all purposes. * * * The man had his foot over onto the car platform—the right foot. Just had his foot on there, that is all. It might be he had only his toe on. ’ ’ The plaintiff testified in his own behalf that on the evening of March 14, 1903, he had been attending a birthday party, which he left about ten minutes before twelve o ’clock and went to the 12th street station; that a Mr. Hedwick was with him; that Hedwick was in Mexico at the time of the trial; that the two after paying fare went upon the platform of the station and “sat on the bench,” waiting there about fifteen minutes. Plaintiff says: “I saw the car come in. Then I got up off the bench and the car pulled past me and we went to where the car stopped, then Mr. Hedwick gets on and I was right after him- •and just before I stepped on the platform of the car the conductor he runs out one hand and pulls the bell and with the other hand he shuts the gate in my chest. It caught my feet; my right foot I had on the platform of.the car and my left foot about half. My right foot I had right in the car and my left foot was about half and the gate was open about eight inches and I passed inside and Mr. Hedwick he also talked to the conductor to open the gate, and the conductor put his hand in my breast and pushed me back and then the car run fast away and I feel a jab like that (indicating) and then I was all black in my eyes and I fell down below to the ground.” On cross-examination he testifies that he had supper at the party at nine o’clock and “drank three glasses of beer what we call a snip. I drank two at supper and after that I drank two more, and that is all I had. I had not drank anything that afternoon. ’’ ' He further says; “I seen the car coming and we got up to make the train. My friend was about two or three feet ahead of me. He run and I run, too. The train pulls fast in, as fast as it comes to stops. We both ran for the train. Mr. Hedwick gets on the .train and I went to jump on too, and this moment the conductor rings the bell and shut the gate. I got my left feet on the platform of the car and this minute he rings the bell and shuts the gate. My left feet I have half on to it. My left foot and my hand on the gate and I want to push the gate in. The gate was within eight inches of being shut when I got on. The gate was open. When I get on, the gate was open when I had my right foot on and then this minute the conductor he shuts the gate.” He says further: “I got my right foot on. I had got the half of my left foot on. I was in that position when the conductor shoved the gate against me. The gate came against me right here (indicating about the waist line). The train had started up. I can’t tell how far the train had moved at the time the conductor pushed the gate against me. The car was not moving when I started to put my foot on the platform. It was standing still. At this moment he shut the gate, rung the bell and the car is moving on. "When he shut the gate against me I tried to push the gate inside that I get in. The conductor got his hand on my chest and he said ‘Get off’ and pushed me off. Pushed me outside just as the train was starting up. * * * I kept pushing in all the while. My friend was on the platform of the car and he hollered for the conductor and he tried from the inside to open the gate and he couldn’t. I pulled on the outside and the conductor pushed. ‘Go off-’ he said.” This is in substance all the testimony in behalf of the plaintiff so-far as it relates to his attempt to get on the train.</p> <p>There is evidence introduced in behalf of" the defendant which tends to show that plaintiff attempted to get on the car after the gates had been closed and the signal for starting given. The conductor of the-train testifies that when the train ’ stopped at 12th street station several persons got off and two or three-got on the cars, that there was no one on the platform when he closed the gates and rang the bell and called out the next station in one coach; that as he turned tecali it in the other coach-he saw the plaintiff having-his hand on the gate and ran and called to him to “let go.” He states that at the time they were about five-feet from the railing on the end of the station platform by which the plaintiff was struck and thrown down entire surface of the ground beneath. The next witness-for the defense was a passenger who testified that “as-the train started a gentleman came up the steps and grabbed hold of the gates and just as the conductor turned around he saw it was too late and he hit the railing, going over; ’ ’ that he saw this man running up the stairway making a run for the train; that the first thing that attracted his attention was when the man was grabbing for the gate; that he “saw the conductor close the gates. When he closed the gate this man was not up to the steps.”</p> <p>Another passenger who was in the employ of the American Express Co. and was with the witness last referred to, testified that after the train had stopped and the passengers had got on and after the conductor had closed the gates and “given the bell” and had gone to the smoker and called the next station, the witness and his companion noticed the plaintiff “coming running up alongside the train and grabbed the gates, and by that time the conductor turned around and noticed him, and by being too late the car got to the end of the platform and it forced him over and he dropped below.” He says “there was nobody on the platform at the time except this man;” that the plaintiff “just run from the stairs to get the car as the car was passing along there. He hung to the car, to the gate.” A third passenger testifies that he saw a man behind two other men “running up trying to get aboard the train;” that the last man tried but did not get aboard.</p> <p>The plaintiff suffered a broken leg, which although healed has been somewhat shortened and it is alleged he was otherwise injured.</p>

<p>1. Landlord and tenant—what included in demise. The lease of a building for a store and dwelling carries with it the right to the lessee to possess it “in the same manner and with the same beneficial rights” as were then connected with its use and enjoyment. Held, in this case, those rights included the use of a passageway in controversy and an easement therein for all purposes for which it was used by the owner or previous tenant at the time the lease was made.</p> <p>2. Injunctions—when lie to protect easement. If a lease of premises includes an easement for light and ingress and egress over a passageway, an injunction will be granted to restrain the owner from improperly closing or obstructing such passageway.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Paul McWilliams, 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. Robert W. Weight, Judge, presiding. Heard in this court .at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).

. Mandamus. Appeal from the Circuit Court of Cook county; the Hon Georoe A. Carpenter, Judge, presiding. Heard in court at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).

<p>1. Divorce—when cross-hiTl germane. A cross-bill is germane to an original bill charging desertion which does not pray for divorce but which does seek the custody of the children of the marriage upon the ground of the desertion of the complainant charged in such cross-bill.</p> <p>2. Divorce—jurisdiction as to awarding custody of children. A court of chancery by assuming jurisdiction of a proceeding for divorce becomes vested with power to make such distribution of the children of the marriage as may be for their best interests. The custody of such children may be awarded to either or neither of the parents.</p> <p>3. Divorce—jurisdiction over children irrespective of entry of decree of annulment. Notwithstanding the complainant in a divorce proceeding abandons her bill and the defendant though entitled to a decree refuses to accept one, the court has jurisdiction to award the custody of the children of the marriage to such defendant.</p>

Action in case for personal injuries. Appeal from the Superior court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in court at the October term, 1908.

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

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

Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthilt., 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. Theodore Bkentano, Judge, presiding. Heard in this court at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).

Foreclosure. Appeal from the Superior Court of Cook county;, the Hon. Fablin ,Q. Ball, Judge, presiding. Heard in this court at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).

Action in case for death caused by alleged wrongful act. Appeal from the Superior Co.urt of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1908.

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

Assumpsit. Appeal from Superior Court of Cook county; the Hon. George A. Duput, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908. Statement by the Court. This is an action of assumpsit, for coal sold and delivered by plaintiff to the defendant. The amount claimed was $907.96. Plaintiff, under the statute, filed an affidavit of its claim for that amount, with its declaration.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

Intervening petition. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908. Statement by the Court. At a sale of real estate by a master in chancery, under a decree in a partition suit, appellant bid in certain real estate, on April 17, 1906. He was not a party to the suit.

<p>Municipal Court—when till of exceptions stricken. A bill of exceptions not presented and filed within sixty days after judgment or within such further time as may have been provided for within such sixty days, will be stricken from the record.</p>