Volume 159 — Illinois Appellate Court Reports

Bill to construe will. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Statement by the Court. This is an appeal from a decree of the Circuit Court construing the. will and two ¡codicils of John R Newman, deceased. The will was 'made January 12,1886; the first codicil, April 20,1886; and the second codicil, March 27, 1895.

<p>1. Mines and miners—when negligence not established. Held, that the use of the latch and switch complained of in this case did not show negligence, the evidence showing that such latch and switch were the same in construction as all other latches and switches used in the mine and were operated in the sajne way as in other mines and railroads, the evidence not showing that the latch and switch in question were out of repair.</p> <p>2. Appeals and errors—duty of court to submit case to jury. If there is any evidence tending to prove the plaintiff’s case, the court should submit it to the jury. After verdict, if it is manifestly against the weight of the evidence, it is the duty of the court to set the same aside.</p> <p>3. Trial—when remarles of counsel ground for reversal. In an action for personal injuries remarks of counsel are improper and constitute ground for reversal where their purpose is to have the jury treat the defendant corporation other than as an individual would be treated.</p> <p>4. Teial—when remarles of counsel ground for reversal. In a close case unfair remarks of counsel calculated unduly to arouse the prejudice of jurors constitute ground for reversal.</p>

Ben M. Smith, Judge, presiding. Statement by the Court. July 15, 1910, the motion of the defendant in the Superior Court for a new trial was denied and a judgment entered against him for $15,000, from which he prayed and was allowed an appeal to this court on filing an appeal bond. July 16 defendant filed his appeal bond, which was approved.

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.</p> <p>Statement by the Court. Appellant brought an action on the case in the Superior Court for personal injuries against four defendants, discontinued as to two, and the case was submitted to the jury on the issues joined between plaintiff and the remaining two defendants, the appellees here. The court, at the close of plaintiff’s case, directed a verdict of not guilty as to both defendants, denied plaintiff’s motion for a new trial, and from the judgment on the verdict the plaintiff appealed.</p> <p>A plant to consist of a number of large buildings was under construction for Sears and Roebuck. In one of such buildings was a boiler room 200 feet long from east to west, 58 feet wide, with brick walls 30 feet high and 17 inches thick. The frame of the building was of steel and was erected before the work on the walls began. It consisted of columns 16x12, 30 feet high, roof beams which rested on the columns and rafters. The columns were flush with the outside of the wall. In the boiler room was an electric crane. To support the rails on which the crane ran, beams were placed inside the north and south walls about twenty-five feet above the floor. One end of the beams was bolted to a column and the other supported by a bracket attached to the column. On the cross beams I beams were placed and on the I beams rails were laid. The bridge of the crane consisted of two steel girders three feet apart and extending across the room. At the ends of the girders were wheels which ran on the rails and were connected with a motor by which the bridge was moved north and south. Another motor, the cross traveler, ran on top of the girders of the bridge and connected with it was a hoist. The crane was a part of the permanent structure of the building, and by it an article could be hoisted in any part of the room, moved east or west by the cross traveler, and north or south by moving the bridge of the crane. Before the accident the south and east walls and the north wall to within about 50 feet of its west end had been completed. Plaintiff was in charge of fifteen brick layers who were working on the west wall and the unfinished portion of the north wall. For the brick layers working on the north wall a putlock scaffold about 15 feet high had been erected, which extended east about 50 feet from the west wall. In the completed portion of the wall was a terra cotta course about 18 inches high, the base of which was 45 inches below the level of the crane rail, and it was intended to extend this course to the west end of the wall. The upper 5 feet of the west end of the completed portion of the wall was perpendicular and toothed. From its foot the wall descended by steps until the level of the wall where brick layers were at work was reached at the third column from the west. The distance between the end of the completed wall and the column was 5 feet and the descent in that distance about 4 feet. The west end of the wall was up nearly to a level with the bottom of the terra cotta course, and to ascertain the precise distance between the crane rail and the bottom of that course, so that he might direct his men where to set that course, plaintiff went on the wall to the west end of the completed portion to measure that distance. He made his measurements and started to go west down the steps of the unfinished wall. As he came near to the column he had hold of the rail with his left hand and the crane came from the west and a wheel ran over his hand and inflicted the injuries complained of. Plaintiff was employed by the Thompson Starrétt Company, who were putting up the brick wall under a contract with the owner of the building. The Thomas Elevator Company operated a number of hoists in different buildings of the plant for hoisting materials, but such hoists were not connected in any way with the crane. The crane was used to move and set in place machinery for the Otis Company, which was installing machinery in the boiler room, and for other contractors for the same purpose. It was operated by Otto Bressert, whose wages were paid by the Thomas Company. When one of the contractors desired to have an article moved by the crane, a man representing the contractor gave signals with his hand to hoist, lower, move east or west, north or south, and Bressert obeyed such signals. In operating the crane Bressert walked on the floor of the building and operated the crane by ropes. At the time of the accident a pump was being moved by the crane for the Otis Company. The man who gave the signals for that company to Bressert stood on the floor near the southwest corner of the building. The crane had moved west to a point near the west wall of the building, picked up the pump, and was moving east when the accident occurred. From the evidence the jury might properly find that prior to the day of the accident the crane had not been moved west beyond the west end of the completed wall. The afternoon before the accident Bressert extended the trolley further west, and after that and before the accident, the crane ran twice to a point near the west wall of the building. At the time of the accident that part of the building where plaintiff was when injured was so filled with exhaust steam from an engine outside of the building as to prevent either the man who gave the signals or Bressert from seeing the plaintiff, and there is no evidence tending to show that either of them saw him or knew that he was on the wall.</p>

Action in case. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Statement by the Court.

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

<p>1. Executions—what not subject to levy. Personal property in the possession of the judgment debtor is not subject to levy if such property was acquired and is held as a bailment with power to sell.</p> <p>2. Bailments—what not absolute sale. The fact that personal property is in the exclusive possession of the bailee, is invoiced to him at a certain price and is offered for sale by him with the knowledge and consent of the bailor, does not establish a sale so as to render such property subject to levy upon execution.</p>

<p>Error to Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p> <p>Statement by the Court. This writ of error brings before us for review a judgment for $865 recovered against plaintiffs in error by defendant in error in an action of the fourth class in the Municipal Court. The statement of claim in the praecipe is as follows: “Plaintiff’s claim is for goods, wares and merchandise sold and delivered to defendants by Insurance Field Company. ” With the praecipe was filed the affidavit of an officer of the plaintiff stating that the Insurance Field had sold and transferred its right to the account sued on to the plaintiff. Plaintiffs in error entered their appearance and afterwards moved to dismiss the suit. With the motion was filed an affidavit of one of the defendants, which stated that the cause of action sued on grew out of a contract between the Inland Fire Insurance Company, a corporation, and The Insurance Field, assignor of the plaintiff; that said Insurance Field was a foreign corporation .for profit, organized under the laws of Kentucky, and at the time when said contract was made maintained an office in Illinois and transacted business and exercised its corporate powers and franchises there, without having complied with the provisions of the Act entitled an “Act to regulate the admission of foreign corporations for profit to do business in the State of Illinois,” and that it had no certificate from the Secretary of State of Illinois authorizing it to do business in Illinois, etc. The motion to dismiss was denied and the cause submitted to the court.</p> <p>The goods for the price of which plaintiff recovered were sold by the Insurance Field between September, 1907, and February, 1908. Said Insurance Field was a corporation for profit organized under the laws of Kentucky, and during the time above mentioned and for a long time theretofore had maintained an office in Illinois and done business there. It had not complied with the Act relating to foreign corporations for profit doing business in Illinois, and had no certificate from the Secretary of State authorizing it to do business here.</p>

<p>Action in debt. Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook- county; the Hon. Beet M. Smith, Judge, presiding.</p>

Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Statement by the Court. This is an appeal by-Walter W. Wilcox from an order appointing a receiver of the rents, etc., of certain improved real estate in a mortgage foreclosure proceeding in which appellee filed an intervening petition to enforce a mechanic’s lien upon the mortgaged premises, and also asking for the appointment of a receiver.

<p>1. Wills—canon of construction. The cardinal canon of construction in the interpretation of a will is from the whole context to gather the intent of the testator, and when so gathered, to declare it.</p> <p>2. Wills—powers of trustees. Hela, under the construction of the provisions of the will in question in this case, that the trustees were authorized and empowered to invest the trust funds of the estate represented by them' in real estate located as well in other states as in the State of Illinois.</p> <p>3. Trusts—powers of trustees to invest funis of estate. If trustees appointed by a will are domiciled in this state and subject to the jurisdiction of its courts, there is no prevailing public policy which forbids their exercise of a power conferred by will to invest the funds of the estate in real estate located in states other than in Illinois.</p>

Bill of interpleader. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiel, Judge, presiding. Statement by the Court.

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.</p> <p>Statement by the Court. This is an appeal from an interlocutory order granting an injunction and also from an order refusing to dissolve.</p> <p>The injunction restrains the defendants, who are directors and constitute the General Executive Board of The Brotherhood of Painters, Decorators and Paperhangers of America—a trade union incorporated under the laws of the State of Indiana, December 7, 1894—</p> <p>(a) “from revoking or attempting to revoke the charters of Local Unions Numbers 194, 275, 180, 54, 637 and 584 of the Brotherhood of Painters, Decorators & Paperhangers of America;</p> <p>(b) “from representing themselves or holding themselves forth as Scandinavian Painters, Decorators & Paperhangers Union No. 194 of the Brotherhood of Painters, Decorators & Paperhangers of America, or holding themselves forth or representing themselves as Local Unions Numbers 194, 275,180, 54, 273, 637 and 584;</p> <p>(c) ’ “from revoking or attempting to revoke or cancel the working cards of the members of said Local Unions,</p> <p>(d) “or interfering with or attempting to take possession of any of the moneys, funds or other property of said locals,</p> <p>(e) “or aid or abet, or attempt to aid or abettor combine to prevent the said members from obtaining work and employment,</p> <p>(f) “from threatening, harassing or annoying said members of said locals,</p> <p>(g) “from all acts interfering with the objects and purposes of said locals and their members.”</p> <p>It appears from the bill that prior to February 5, 1910, there were in Chicago seventeen local unions of the Brotherhood, all of them organized under the powers conferred upon the corporation by its charter, under the provisions of which the members of these subordinate local unions became “full members of this Association upon the terms and conditions prescribed by the constitution and by-laws. ’ ’ These local unions in accordance with the constitution of the Brotherhood were required to be connected with a District Council composed of delegates from all these local unions, known as the Painters District Council No. 3 of the Brotherhood. In 1909 a controversy arose between certain of these local unions over offices and control in said District Council. As a result several of the local unions withdrew their delegates and seceded from the District Council. This action subjected such locals to a revocation of their charters by the District Council under a provision of the Brotherhood constitution. Appeals from such action were taken to the General Executive Board, of the Brotherhood by the seceding locals and also by the District Council. This executive board heard both appeals and in some respects sustained the local unions, but refused to dissolve the Council as urged by the aggrieved locals. It sustained the Council in its objection to the secession of these locals and ordered the latter to return their delegates who had been withdrawn therefrom to the Council. A further appeal was taken by the locals to the General Assembly of the Brotherhood and the action of the General Executive Board was sustained. Thereupon, the said Executive Board officially ordered the seceding locals to return their delegates to the Council by February 3, 1910, upon pain of having their charters revoked in case of disobedience of the order. Six of the locals refused obedience to the order and thereupon the General Executive Board revoked their charters, and directed the respective Treasurers of these six locals to forward the books, papers and moneys in their possession to the General Secretary-Treasurer of the parent body, in accordance it is claimed with the provisions of the constitution of the order. Thereafter on the 10th of February, 1910, the bill in this case was filed.</p> <p>The bill is exhibited by seven complainants who allege they are members in good standing of the Brotherhood, but do not specifically allege that they are members of any of the seceding local unions. They state that defendants have threatened to revoke the membership cards of members of said locals as well as the charters of said unions. The defendants are respectively the President, Vice President, Secretary, Treasurer, members of the Executive Board of the Brotherhood and persons described as “agents and servants of said defendants herein named.” It is alleged that the Brotherhood is affiliated with the American Federation of Labor, an organization composed of various international labor organizations of America, which has an affiliated membership of about two million members; that in accordance with a resolution . of said American Federation of Labor adopted in a convention held in 1907 at Denver, and a provision made for that purpose, the Chicago Federation of Labor has organized a sub-department known as the Building Trades Department of the Federation of Labor, and that at a convention of the local unions composing the Brotherhood, there was adopted a resolution providing for and directing the local unions of the Brotherhood “to affiliate with the building trades department of the American Federation of Labor.” It is further averred that prior to said convention there existed in Chicago said Painters District Council, which was the central body to which the various local unions in Cook county sent their delegates and that there were seventeen locals of the Brotherhood so affiliated with said Council; but that after said action by the American Federation of Labor and the national convention of the Brotherhood, certain local unions of the Brotherhood withdrew their delegates from said Painters District Council and were directed by their membership to affiliate with the Building Trades Department of the American Federation of Labor, which they did. The local unions so withdrawing from the Painters District Council were Local Union No. 194, having a membership of about 2,000; Local Union No. 275, with a membership of about 1,300; No. 180, with -about 600; No. 54, with about 200; No. 273, with about 200; No. 637, with about 205; No. 584, with about 75; making a total membership of 4,580. It is stated that certain local unions dominated by one Martin B. Madden, with a membership of about 2,000 members, have not complied with the laws of the American Federation of Labor or are still affiliated with said alleged Painters District Council.</p> <p>The bill further alleges that the officers of said Council have received large sums of money from fees and other sources, paid in by members of the Brotherhood, for which they have failed to account, and complainants pray that an accounting of and for such moneys may be taken.</p> <p>It is set forth in detail that members in good standing of the Brotherhood under the constitution of the Brotherhood are entitled to certain death benefits, to participate in the fund created for death and disability benefits, and have paid their dues into the Brotherhood upon that assurance. It is alleged the hill is exhibited in behalf of the great majority of the painters, decorators and paperhangers of Chicago and vicinity affiliated with said Brotherhood, and that these cannot secure employment without a working card certifying to their standing in said Brotherhood; that said local unions above mentioned have established sick benefit funds, separate and apart from the gemeral dues and other charges payable to the general organization, and that said sick benefit fund in said locals amounts to about $1,500, in which fund petitioners and other members in whose behalf the bill is exhibited have an undivided interest under the by-laws of said respective local unions in case of sickness, disability or distress, and that said locals are obligated by their by-laws to pay such sick benefits from the sick fund or general fund of said local unions.</p> <p>It is further averred that said local unions have-established a general fund from dues, assessments and other sources of income, which fund does not belong to and is not under the control of the Brotherhood, but is subject to the disposal of said local unions, who use it to assist disabled, distressed, sick and delinquent members, and that said general fund amounts to about $20,000, in which complainants and their associate members have an undivided interest.</p> <p>Complainants aver that the defendants herein have wrongfully and illegally conspired to wreck and destroy the local unions above mentioned and that they claim the right to revoke the charters of the latter and take possession of their property and funds in violation of the constitution and laws of the Brotherhood to revoke the membership cards of members of said local unions and compel them to join other organizations and surrender all their right, title and interest, in and to the said general and sick benefit funds.</p> <p>It is charged that the defendants have wrongfully combined and confederated together to oppose the resolutions of the American Federation of Labor and of the general convention of the Brotherhood and the Building Trades Department of the American Federation of Labor and to compel said local unions to refrain from conforming to said resolutions, that said conduct is illegal and unlawful and will result in irreparable injury and loss to the members of said local unions; that said defendants have demanded and attempted to revoke the membership cards of the members and the charters of said local unions, which purpose is unlawful and if carried out will result in irreparable loss and injury to petitioners and other members of said locals. It is averred that the Brotherhood has no right, claim or interest in and to said sick benefit and other funds.</p> <p>It is further averred that local Union 194 is known under the name of Scandinavian Painters & Decorators Union No. 194 of said Brotherhood, and is located in Chicago; that it has been in existence over fourteen years and has a membership of about two thousand members, and that certain of the defendants are attempting to organize and create a new organization with the same name and number, 'which if done will cause irreparable injury, create great confusion in the delivery of mail and prevent the said regular Scandinavian Painters and Decorators Union from receiving mail and communications intended for it.</p> <p>Complainants represent that there is no power or authority in the constitution of the said Brotherhood authorizing or permitting the general Executive Board to revoke the charter of any subordinate local; but that nevertheless the defendants purporting to act as the general Executive Board of said Brotherhood in opposition to and in conflict with the laws of the American Federation of Labor and the resolution of the National Convention of the Brotherhood of the Building Trades Department of the American Federation of Labor in Chicago, propose and are attempting and threaten to revoke the charters of the said locals before mentioned, and to organize other local unions with the same names and numbers. There are other averments which it is we think unnecessary to set forth in detail.</p> <p>■ The answer denies that defendants ever attempted to revoke membership cards, but admits that the general Executive Board did revoke on February 5th the charters of said locals and directed that members thereof if they desired to preserve their beneficial standing could do so by transferring to any of the local unions affiliated with the District Council of Chicago. This action it is claimed by defendants while it revoked the authority under which the aggrieved locals acted, did not destroy nor interfere with the rights of their members as members of the Brotherhood. It is admitted that the Brotherhood is a corporation and a Trade Union with, it is said, seventy thousand members; that at its general convention in Cincinnati in December, 1909, a resolution was adopted providing for an amendment to the constitution of the Brotherhood whereby local unions shall affiliate with the Building Trades Department of the Federation of Labor, but it is averred that this amendment is not yet in force and will not be until adopted by a vote of the Brotherhood, which will not be acted upon until later in the present year; that the said aggrieved local unions in whose behalf the bill of complaint is filed withdrew their delegates from the Painters District Council and affiliated with the Building Trades Department of the American Federation of Labor prior to the meeting of the general convention of the Brotherhood at Cincinnati and prior to the adoption of the resolution providing for submission to the Brotherhood of the amendment; and that they had no power to do this before the confirmation by referendum of the proposed amendment. The answer admits that the local unions in question have established sick benefit funds separate from their general dues to the probable amount of $1,500, but deny that petitioners and other members of said local unions have an undivided right in said fund, and show that by the constitution of the Brotherhood, while complainants have a beneficial interest in said fund, the fund is required to be forwarded to the general Secretary-Treasurer of the Brotherhood because on February 5th the general Executive Board by virtue of the power vested in it by the constitution and charter of the Brotherhood revoked the charters of said local unions, for the reason these latter had seceded from the Painters District Council of Chicago. Defendants state that upon such secession the general Executive Board had no discretion in the matter but were compelled by the ' constitution and by-laws to revoke the charters of such local unions so seceding from said District Council. A copy of the constitution of the Brotherhood is submitted and seems to justify in substance the defendants’ contention. Section 173 provides as follows: “All local unions within the jurisdiction of a ’ District Council must be represented in and shall be governed by the rules of said Council. Refusal to be represented in and remain in the same except for a grievance sustained by the General Executive Board shall be penalized by revocation of charter.”</p>

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

<p>Action in debt. Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Geobge A. Dupuy, Judge, presiding.

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

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.

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

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

<p>1. Mines and miners—what an assumed risk for lohich operator not liable. An injury resulting to a miner from a fall of coal from the face of the vein not occasioned by the act of the operator or resulting from the non-performance by him of any of his statutory or common law obligations, will not impose liability upon him, the risk of injury from such a cause being an assumed risk.</p> <p>2. Verdicts—when set aside as against the evidence. A verdict clearly and manifestly against the weight of the evidence will be set aside on review.</p>

<p>1. Appeals and errors—when absence of evidence to support count cannot be availed of. If no motion to direct a verdict upon a particular count not sustained by any evidence is made, a general verdict will not be disturbed if the evidence sustains any count in the declaration.</p> <p>2. Appeals and errors—when motion in arrest does not lie. A motion in arrest does not reach the question of the sufficiency of the evidence to sustain a particular count of the declaration.</p> <p>3. Pleading—how propriety of joinder of counts determined. Whether or not causes of action are properly joined depends not upon proof of the allegations contained therein but on the allegations themselves.</p>

<p>1. Trial—power of court to reopen case. It is within the discretion of the trial court to permit a party to introduce additional evidence after he has rested his case and no abuse of discretion is shown where the court permitted an oversight to be corrected.</p> <p>2. Instructions—when province of jury not invaded. A statement by the court to the jury of the amount calculated by a witness as due upon a note in suit is not error where the court would have been justified in primarily directing a verdict.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.</p>

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

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Harry Higbee, Judge, presiding. Statement by the Court.

Action in case for personal .injuries Appeal from the Superior Court of Cook county; the Hon Willard M. McEwen, Judge, presiding. Statement by the Court. The defendant below, Riverview Sharpshooters Park Company, appellant, maintained and operated Riverview Park, a public amusement park, which contained within its enclosure various kinds of amusements and attractions. It charged and collected at the gates of the park a general admission fee of ten cents for .each person.

<p>1. Verdicts—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will tie set aside on review.</p> <p>2. Agency—when conductor not authorized to bind traction company. A conductor has no express or implied authority to bind his company for medical attention given to a person injured by the car of such company.</p>

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

<p>1. Statute oe Frauds—how question whether promise is original or collateral determined. Whether a promise is original or collateral, where a dispute exists as to the terms of the promise, is a question to be determined by the jury from all the circumstances in the case and the evidence under the instructions of the court.</p> <p>2. Statute oe Frauds—when promise original. If a person claimed to have made the promise to pay the debt of another is interested in the business of such other and primarily to protect his own interests made such promise, it is an original undertaking, and it is not necessary to its validity that the party to whom the promise was made and who sold and delivered the merchandise should have intended to hold the promisor alone responsible.</p>

<p>1. Criminal law—when information charging visiting code pit sufficient. An information which charges a violation of the statute prohibiting etc. the visiting of a place used for the purpose of fighting and baiting cocks, is sufficient which avers substantially in the language of the statute that a certain room in a certain city and county was a place kept and used for the purpose of fighting and baiting cocks and that the defendant visited the described place and was found therein.</p> <p>2. Criminal 'law—statute against cock fighting construed. Under the statute enacted against cock fighting several distinct acts are connected with the same general offense and are made subject to the same penalties, and though they might be and doubtless are distinct crimes if committed by different persons, or by the same person at different times, when they are committed by the same person, at the same time, they may be considered as representing stages of the same offense, and may be joined in the same count of an indictment or information as constituting a single violation of the act.</p> <p>3. Criminal law—when judgment responsive. A judgment in a prosecution for visiting a place used for cock fighting is responsive which finds the defendant guilty of a violation of section 52 of chapter 38 of the Revised Statutes in manner and form as charged in the information. A finding that the defendant was guilty of an offense for which he was not charged, namely, of “cock fighting” may be rejected as surplusage.</p> <p>4. Pleading—lohen information not subject to vice of duplicity. No matters however multifarious, will constitute duplicity in an indictment or information, provided that all such matters taken together constitute but one connected charge.</p> <p>5. Pleading—what allegations in information may be stricken as surplusage. If any allegation is not descriptive of the offense, under the maxim utile per inutile non vitiatur, it may be wholly stricken out and rejected as surplusage, where it leaves the count a perfect one.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding.</p>

<p>Appeals and erbobs—when finding not disturbed. Where the witnesses testified before the court the finding by the court will not be disturbed as against the evidence unless clearly and manifestly so.</p>

Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Statement I>y the Court. Complainant, Homer K. GJ-alpin, instituted this cause by a bill in equity in the nature of a bill of interpleader which he filed on December 26, 1907.

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

<p>Appeals and errors—failure to file proper abstract. A mere index of the record is not an abstract within the requirements of the rules of the third district, and for failure to comply with such rules by the filing of a sufficient abstract an affirmance will be ordered.</p>

<p>Contracts—“estimated” construed. Held, that the word “estimated” in the connection used, was the equivalent of “about” or “approximately,” which words when applied to number or quantity mean the specific number or quantity named less slight or immaterial deviation.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

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

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

<p>1. Common carriers—burden to explain delay in transportation. If it be shown by the plaintiff that the delay of the carrier in transporting horses was unusual, the burden shifts and is cast upon the defendant to explain such delay and to show that it did not result from its negligence.</p> <p>2. Evidence—refreshing recollection. A witness may properly be permitted to refresh his recollection by reference to records contemporaneous with the fact.</p> <p>3. Evidence—when telegrams incompetent. Telegrams merely hearsay and self-serving in character are incompetent.</p> <p>4. Propositions of law—must not ignore essential elements. In an action against a carrier for damages occasioned by delay in transporting horses, held, that a proposition of law was properly refused because it ignored the duty of such carrier to inspect its locomotive.</p> <p>5. Propositions of law—when refusal of correct mil not reverse. A correct proposition of law may properly be refused if its contents are substantially contained in other propositions given.</p> <p>6. Propositions of law—province of court. A proposition of law which infringes upon the province of the court as a trier of the facts is properly refused.</p>

<p>1. Fraternal benefit societies—when re-instatement obtained by fraud sustained. Notwithstanding a re-instatement may have been obtained by fraudulent representations, if such representations at the time of the re-instatement were known to the society to be false and the re-instatement none the less made, a waiver is established and the re-instatement will be sustained.</p> <p>2. Fraternal benefit societies—presumption as to amount of assessment. In an action to recover for death benefits, the amount which the beneficiary is entitled to recover is presumed to be the full amount of the certificate in the absence of evidence that an assessment would not realize such amount.</p> <p>3. Instructions—predicated upon evidence. Instructions are properly refused which are not supported by any evidence in the record.</p> <p>4. Evidence—propriety of leading questions. If a witness when called by counsel gives unexpected testimony it is proper to permit counsel to interrogate such witness by leading questions for the purpose of refreshing his recollection, if he appears forgetful, or for the purpose of probing or pricking his conscience and moving him to relent and speak the truth if he has wilfully erred.</p> <p>5. Trial—what not objection to remarles of court. An objection to a ruling made by the court is not an objection to the remarks made in making such ruling; in order to save for review the propriety of the language employed by the court an objection thereto must be specifically made.</p>

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

<p>Bill in equity. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Pike county; the Hon. Habry Higbee, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. Wilham C. Johns, Judge, presiding.</p>

<p>1. Insurance—presumption as to mortgage clause. It will be presumed that a mortgage clause attached to a policy was issued at the time of the execution of the mortgage and that it wag issued for the purpose of protecting the rights of the usee named therein in the mortgaged property in case of fire.</p> <p>2. Insurance—iohen change in title does not affect policy. If a policy provides that any change in title or ownership by mortgage or otherwise will invalidate the policy, such policy is not invalidated by a mortgage if attached to the policy is a mortgage clause making the loss, if any, payable to the mortgagee.</p> <p>3. Insurance—when authority to agents presumed to continue. If a policy of insurance is issued by agents of the company such agency is presumed to continue until notice to the contrary has been given to the insured or other parties in interest.</p>

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

<p>Contested claim in court of probate. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>1. Fraternal benefit societies—when false answers in appliear tion will not vitiate certificate. If the agent who obtained the application was the agent of the society and was given by the applicant true answers but filled out the application blank with false answers, the certificate will be enforced against the society.</p> <p>2. Appeals and errors—when assignments of error waived. Assignments of error not specifically argued are deemed waived.</p>

<p>Judgment by confession. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cass county; the Hon. Gut R. Williams, Judge, presiding.</p>

<p>Insurance—when insured not liable for failure to obtain consent to assignment of policies. If the insured upon selling the property-covered by insurance likewise contracts to assign the policies covering the same he is not liable for the loss occasioned by fire before the consent to the assignment has been obtained from the company.</p>

<p>1. Pleading—when failure to carry bach demurrer not error. The failure of the court to carry hack a demurrer sustained to the first defective pleading is not error in the absence of a motion requesting that such demurrer be so carried back.</p> <p>2. Pleading—when erroneous sustaining of demurrer to particular counts of information harmless. Notwithstanding it may have been error for the court to sustain a demurrer to certain counts of an indictment such error is harmless if all of the questions arising upon the record were properly presentable under another count of the information as to which no demurrer was sustained.</p> <p>3. Pleading—function of replication. The office of a replication is to reply to the issues of fact presented by the plea either by matter of estoppel, denial or by confession and avoidance.</p> <p>4. Pleading—when demurrer to replication to pleas filed to information to try title to office properly sustained. A demurrer to a replication filed in such an action is properly sustained where such replication admits the facts set forth in the pleas and does not attempt to traverse these facts but only avers that the facts set forth in the pleas do not justify the conclusions of the defendant that they present a legal title to the office in question.</p> <p>5. Costs—when judgment improper. No judgment for costs can be rendered against the plaintiff in an action brought in the name of the People and upon authority of the People.</p>

<p>1. Statutory law—section 3 of chapter 132 in relation to sureties construed. Section 3 of chapter 132 which fixes the time within which a claim shall be filed against an estate in order to prevent a release of the surety is not amended by the amendment made to section 70 of chapter 3 of the Administration Act.</p> <p>2. Suretyship—when surety not discharged. Failure to file & claim against the estate of a deceased person within one year after the issuance of letters does not discharge a surety upon the obligation of such deceased person as the statute in relation to sureties does not require that such a claim should be filed except within two years from the date of the issuance of such letters.</p>

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

<p>Bill for injunction. Error to the Circuit Court of Hancock county; the Hon. John A. Gbay, Judge, presiding.</p>

<p>This case Is controlled by the decisions in Walters v. Stacey, 122 Ill. App. 658.</p>

<p>Action in case. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Appeal from, the Circuit Court of McDonough county; the Hon. George W. Thompson, Judge, presiding.</p>

<p>Action in case. Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding.</p>

<p>Prosecution for unlawful sale of intoxicating liquors. Error to the Circuit Court of Macon county; the Hon. William G. Cochran, Judge, presiding.</p>

Harry Olson, Judge, presiding. Statement by the Court. In the Municipal Court the plaintiff recovered,,in an action of the fourth class, a judgment against the ¿Etna Indemnity Company for $18,900 debt and $721.25 damages and costs, and in another action of the same class, a judgment against the United Surety Company for $18,100 debt and $825 damages and costs. In both cases a jury was waived, and most of the facts stipulated.

Judgment by confession. Appeal from the Circuit Court of Cook county; the Hon. Solon Philbrick, Judge, presiding. Statement by the Court.

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

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

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Statement by the Court. This is an appeal by the defendant from a judgment for $750 recovered by the plaintiff in an action on the case for personal injuries. Center avenue in the city of Harvey is a residence street, runs north and south, and is eighty feet wide.

<p>1. Tobts—right of action by wife to recover for alienation of husband’s affections. In Illinois a wife may, on the same grounds and with the same rights as a husband, recover for the loss of her husband’s affections against one who has alienated them.</p> <p>2. Evidence—what not competent in action for alienation of affections. The general reputation of the defendant for chastity is not competent in an action for alienation of affections.</p> <p>3. Evidence—what essential to competency of evidence of good character. In civil cases where character is in issue, the weight of authority is that evidence of good character should not be received unless the reputation has been attacked by general evidence of bad character.</p>

<p>1. Landlord and tenant—when implication of holdover under expired lease arises. The implication that a tenant is holding over under the terms of an old lease arises only when proof of an election on the part of the landlord to take the contrary view of the tenant’s position and liability is wanting.</p> <p>2. Landlord and tenant—when tenancy at will arise.s. A tenant holding over not under the terms of an expired lease hut under an arrangement for a new one, void and unenforceable under the Statute of .Frauds, is a tenant at will.</p>

<p>Brokers and factors—when entitled to commissions. An agent for the sale of real estate whose authority was not exclusive is entitled to commissions if he is instrumental in the bringing together of the buyer and the seller and thus becomes the procuring cause of the sale although the actual conclusion of the sale may have been effected without his presence and knowledge.</p>

<p>1. Pleading—effect of filing plea without leave. If a plea Is filed after tbe defendant’s time to plead, as fixed by order of court, has expired, without leave of court, and without notice to the plaintiff either before or after filing it, it forms no part of the record.</p> <p>2. Contbacts—lohen fraudulent representations no defense to action upon. If after knowledge of the fraud inducing the execution of the contract the party defrauded for a consideration ratifies the contract, an estoppel arises to preclude a reliance upon such fraud as a defense to an action upon such contract.</p> <p>3. Lottery—what not. Held, that the so-called “word contest” method of advertising was not a lottery within the meaning of the national or state laws.</p>

<p>1. Pabent and child—liability of step-father. If a man takes the children of his wife by a former marriage into his family he stands in loco parentis as to them and becomes bound by his wife’s contract made for their maintenance and education.</p> <p>2. Husband and wife—effect of section 15 of act of March SO, 1874, upon liability of step-fathers. Section 15 of the act of March 30, 1874, “To revise the law in relation to husband and wife,” providing that the expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and that in relation thereto they may be sued jointly or separately, does not change the liability of the step-father from that laid down by the common law.</p>

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

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.</p>

<p>Brokers and factors—when not entitled to commissions. A real estate agent who ceases his activities in the renting of property and who abandons his negotiations with a particular party who afterwards makes a lease, is not the procuring cause thereof and is entitled to no commissions.</p>

<p>Mechanic’s lien. Appeal from the Superior Court of Cook county;1' the Hon. Farlan Q. Ball, Judge, presiding.</p>

<p>Administration of estates—nature of appeal affecting widow’s award. An appeal from an order confirming the report of appraisers as to a widow’s award is not a suit at law to be tried on the short cause calendar.</p>

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

<p>Appeals and errors—effect of setting aside judgment appealed from. If a judgment appealed from has been set aside by the lower court and a new judgment entered in lieu thereof, such new judgment will not be reviewed in the absence of an appeal prayed and perfected therefrom.</p>

<p>1. Appeals and errors—when assignments of error deemed •waived. Assignments of error not argued are deemed waived.</p> <p>2. Appeals and errors—when finding of chancellor not disturbed. The findings of a chancellor upon the facts will not be disturbed if they are justified by the evidence. ■</p>

Trespass on the case. Error to the Circuit Court of Cook county; ^ the Hon. Charles M. Walker, Judge, presiding. Statement by the Court. This is a suit brought by plaintiff, a married woman, living with her husband, against appellee, a surgeon upon the medical staff of the Michael Reese Hospital, who performed an operation upon her at the hospital early in September, 1901.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Statement by the Court. Appellee brought this action to recover for an injury to one of his eyes caused by the alleged negligence of the appellant. It appears that appellant, a building contractor, had a contract for erecting a large building in Chicago for Handel Brothers.

Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Statement by the Court. Appellant filed her bill in equity to redeem certain premises from the lien of two trust deeds, and from a warranty deed and a quit-claim deed, absolute on their face, and claimed by appellant to have been given for certain trust purposes.

<p>Error to the Criminal Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Statement by the Court.

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

<p>Municipal Court—when judgment reversed. If from a consideration of the transcript the Appellate Court is not satisfied that substantial justice has been done by the judgment rendered a reversal will he awarded.</p>

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

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

<p>Recoupment—to whom, defense available. The defense of recoupment is available as well to the guarantor as to the principal debtor.</p>

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

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding.</p> <p>Statement by the Court. This appeal is prosecuted by the defendant to reverse a judgment for $3,000 entered in an action brought by the administrator of Millard M. MeKeehan, deceased, for alleged negligence which caused the death of MeKeehan.</p> <p>The declaration consists of two 'counts, in each of which the negligence averred is that the defendant carelessly and negligently permitted the air brakes on the car which struck plaintiff’s intestate to become and to remain out of order and in bad condition and repair, so that when the air was applied by the motorman of the defendant the brakes would not work and would not stop defendant’s car; and that the defendant had notice, or in the exercise of reasonable care would have known and discovered the defective condition of the brakes.</p> <p>The only controverted question of fact in the case on the trial was the condition of the air brakes on the car which struck and killed MeKeehan.</p> <p>MeKeehan, plaintiff’s intestate, was the conductor of defendant’s car No. 2300, which left Washington street, Chicago, on its south-bound journey along Clark street at about 7:30 on the evening of February 15, 1904. The intersection of Clark and Twelfth streets is elevated twenty-five or thirty feet in order to permit the trains of the Bock Island and Lake Shore railroads to pass under the Twelfth street viaduct. The grade of Clark street begins to rise at about Taylor street and reaches its highest point at Twelfth street, and after crossing Twelfth street, it gradually descends to the level of the street, which is reached between 13th and 14th streets.</p> <p>On the evening in question, after McKeehan’s car had passed 12th street and was about at the foot of the southern decline therefrom, the trolley left the wire and in consequence thereof the lights in the car were extinguished, leaving it in darkness. McKeehan attempted to adjust the trolley to the wire from the rear platform of his car, but without success. He then stepped to the ground, and while trying to adjust the trolley he observed the following car, No. 2732, coming down the decline. He thereupon endeavored to attract the attention of the motorman so as to prevent a collision by standing between the rails of the track on which it was approaching several feet to the rear of his own car and swinging his arms as a signal to stop. He not only failed to attract the attention of Bucher, the motorman, but he remained so long on the track that he was struck by the approaching car and fatally injured.</p> <p>It appears that car 2732 was one of the large double truck type of cars. It reached 12th street on its southern run, and after starting down the incline was brought to a stop and held in place at the top of the incline by the application of the air brakes. It was started again without turning on the current, by simply releasing the brakes, and no stop was made thereafter until the collision occurred, when it had attained a speed, according to the witnesses, of from six to twelve miles an hour.</p> <p>At the close of the plaintiff’s evidence, and again at the completion of all the evidence, the defendant tendered a peremptory instruction to find the defendant not guilty. The court in each instance refused the instruction.</p>

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

<p>Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding.</p>

Bill for separate maintenance. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Statement by the Court. In this case appellant filed a hill in January, 1908, against appellee in the Circuit Court of Cook county, praying for a separate maintenance.

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.</p> <p>Statement by the Court. This is an appeal from a judgment of the Circuit Court of Cook county in favor of appellee for $1,800 for personal injuries sustained by him. The declaration consists of two counts, and charges, in substance, that on the 19th of June, 1902, defendant was engaged in constructing tunnels under the city of Chicago, and employed the plaintiff as a common laborer, in that section of the tunnel or shaft located at Market and Congress streets, Chicago; that it was the defendant’s duty to furnish a reasonably safe place in which plaintiff could perform his duties; that plaintiff was set to work by the foreman or agent of the defendant, who was a superior, and not a fellow servant, of the plaintiff, at escorting loaded cars from the tunnel to the mouth of the shaft, and in so doing was directed by the foreman to ride upon the forward or head end of the dump car; which, with others, was used for carrying dirt and debris out of the tunnel, and ran along upon an incline; that the dump cars were propelled from along the bottom of the tunnel up the incline by a chain device, to which were attached spikes or projections, so arranged that when said cars were loaded they were placed upon the track at the lower end of the incline, and, when the chain device revolved the spikes or projections caught on the axle or rear end of the dump car, by means of which the dump cars were propelled forward and up the incline to where they were to be dumped; that the chain to which these spikes were attached was not kept tight, but was allowed to sag, by reason of which the spikes slipped and dropped down from the axle or slots; that the spikes were not firmly fastened or attached to the dump cars, or any of them, but were allowed to become covered with grease, making them slippery; that said mode of propelling said cars out of the tunnel was necessarily dangerous, and was well known by defendant to be so; but plaintiff had no knowledge of the danger; that it was the custom and habit to have several loaded cars propelled up said incline by said chain device at the same time, thus making the method more dangerous, as the defendant well knew, but as plaintiff did not know; that while carrying out the instructions of the foreman, who was not a fellow servant, plaintiff seated himself upon the forward end of one of the dump cars, going up the incline; that immediately preceding him was another loaded car; and that, through and by the negligence of the defendant in failing to furnish a reasonably safe mode and manner of propelling said dump cars up the incline, and reasonably safe machinery to so propel them, and in failing to furnish the plaintiff a reasonably safe place in which to perform the work, the preceding dump car broke loose, and running downward and backward bumped violently against the plaintiff, breaking his leg and otherwise injuring him.</p> <p>It appears that appellee began working for appellant in January, 1902, and continued in its employ until June 19th of that year, the date of the injury. He was employed as a laborer, and his principal duty was to push cars lo’aded with mud or muck from the top of the incline, up which the cars were brought out to the Chicago river, where the contents of the cars were dumped into mud scows.</p> <p>When the cars were filled with mud by the miners or excavators they were shoved out through a lock or air-chamber, to the bottom of the incline, which was about one hundred feet long, and ascended at an angle of about forty-five degrees. Upon this incline there were two tracks. The cars were about four feet high, three feet long and two feet wide, with a carrying capacity of about one thousand pounds of mud. These cars were lifted or conveyed to the top by means of an endless chain, working on sprocket wheels at the top and bottom of the incline. Upon this chain were projections called dogs, which stuck up about five or six inches, so that when a car was pushed forward the dog would engage, with its flat surface, the round surface of the axle of the car, and thus convey the cars up the incline to the top. At that point the cars were met by laborers, of which appellee was one, and pushed by hand to the river, where they were dumped on scows, and the cars were then returned down into the tunnel and distributed. These cars were reversible, so that, at times, the back axle was the front, and vice versa, and the axles were about three inches from the ground, and the cars would go up the incline hooked either on the front or rear axle. These cars were loaded by miners, and were some times made much heavier in the rear than in the front by carelessly filling the earth or muck more in the rear than in the front end of the car, so that, when they were being taken up the steep incline of the shaft, they were occasionally tipped over backward, or sideways, and this fact was known to the superintendent, who gave orders to the sub-foreman to send men down from the top of the incline to ride the cars, whenever they were improperly loaded, instead of waiting to have the cars trimmed or “mucked,” as the operation of leveling the load in them was sometimes called.</p> <p>Byan, the plaintiff, was an elderly man and therefore was not so often directed to ride the cars up the incline as were the other and younger employes.</p> <p>On the night of the accident, some cars having come through the lock, or air-chamber, improperly loaded, appellee was directed to go down and ride them up the incline. He got upon the front end of an ascending car, hanging his feet and legs over the end, to counterbalance, by his weight, the load. His car was preceded by another similarly loaded, which, when it reached the top of the incline, became loose and ran back against him, resulting in serious injuries.</p> <p>From the evidence it appears that the accident occurred because the car which ran back upon the plaintiff, while he was riding up one of the cars, was being propelled upward by the dog or spike on the endless chain being placed against its front axle, instead of its rear axle, and that, therefore," the car was not sufficiently carried over the top of the incline, as it would have been had the rear axle instead of the front axle been attached. The evidence further shows that the car was thus attached to the dog or spike at the front instead of the rear axle hy a laborer named Withers.</p>

<p>Action in case for personal injuries. Appeal from the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.</p>

<p>New teial—when newly discovered evidence constitutes ground for. If the newly discovered evidence is material and not cumulative nor impeaching in character and no lack of diligence in obtaining it is shown, a new trial should be awarded.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

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

<p>1. Measure op damages—in action for breach of warranty as to' quality. Where no contract arrangement was made as to the place of delivery of merchandise, the measure of damages in case of a breach of the warranty for quality is the difference between the value of the merchandise as warranted and the actual value thereof at the time and place of delivery.</p> <p>2. Measure op damages—in action for breach of warranty as to quality. If merchandise was bought to he shipped abroad, and this was known to the vendor when he sold the merchandise, then the vendee’s measure of damages is the difference between the value of the merchandise as warranted and its actual value at the place and for the purpose contemplated.</p>

<p>1. Cebtiokabi—what essential to justify writ. To justify issuing a writ of certiorari good cause must be shown by the petition, since the writ is not a writ of right; and if it appears to the court, after issuing the writ, that it has been improvidently issued, it should be quashed and the petition dismissed.</p> <p>2. Cektiobabi—when quashing of writ justified. The quashing of a writ of certiorari is justified in the discretion of the court if it appears from the petition for the writ that no damage or injury resulted or might have resulted to the petitioner from the decision Which it was sought to review.</p>

<p>1. Instructions—approved form in action for false imprisonment. The following instruction upon this subject is approved:</p> <p>"The court instructs the jury that in order to sustain a charge of false imprisonment it is not necessary for the plaintiff to show that the defendant used violence or laid hands upon her or shut her up in jail or prison; but it is sufficient to show that the defendant at any time or place in any manner restrained the plaintiff of her liberty or detained her in any manner from going where she wished or doing what she wished, provided this was done without legal authority, as explained in these instructions."</p> <p>2. Instructions—how to he construed. Instructions are to be regarded as a series and the omissions of one may be supplied by the contents of another.</p> <p>3. Instbxjctions—when in action for false imprisonment not erroneous. Held, that the Instruction complained of in this ease did not justify the jury in fastening liability upon the defendant for unauthorized acts.</p>

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

Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Statement by the Court. This is an appeal from certain portions of a decree in equity of the Circuit Court, entered December 14, 1898.

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

<p>Action for assault. Appeal from the Superior Court of Cook county; the Hon. Oscab B. Heabd, Judge, presiding.</p>

<p>1. Negiugence—duty of general contractor. A general contractor erecting a building is obligated to exercise ordinary care not to injure persons lawfully working upon such building in connection with their employment by subcontractors.</p> <p>2. IrrsTEtrcTioNS—when failure to limit fury will not reverse. Held, that it was not error to fail to limit the jury, by an instruction given, to such testimony as was pertinent to the count remaining in the case, the jury having been instructed to disregard all other counts.</p> <p>3. Instructions—when cannot be complained of. A party cannot complain of an error in an instruction if such error is likewise contained in an instruction given at his instance.</p> <p>4. Removal of CAUSES:--io7te«, refusal of court to order removal not subject to review. If the petition for removal is not abstracted or if the abstract does not show the order of the court upon such petition, it will be presumed that the order entered was correct.</p>

<p>1. Express companies—when liable to consignee. If merchandise has been actually bought and the purchaser become liable to pay therefor, such purchaser, when the seller consigns such merchandise through the medium of an express company, may recover of the express company for the loss thereof, notwithstanding the seller has not pressed the purchaser for payment.</p> <p>2. Express companies—when consignee not bound by limitations of liability. A consignee is not bound by limitations of liability contained in a shipping receipt issued to the consignor, such consignor neither having express nor implied authority to waive obligations of the carrier.</p> <p>3. Measure of damages—for loss of merchandise. In an action by the consignee of merchandise to recover its value, the measure of damages is the value thereof at the time and place of delivery, but a sufficient basis to support a finding by the court is given by evidence, unobjected to, of the cost at retail in the regular course of business at the place of shipment just prior to the shipment.</p> <p>4. Appeals and errors—when exceptions unavailing. An exception to an answer is unavailing to question the propriety of such answer, no objection having been made to the question.</p> <p>5. Interstate Commerce Act—effect as to relations of consignor and consignee. The Interstate Commerce Act in no way attempts to regulate or change the law of Illinois as to the relation of a consignor and consignee in interstate shipments; until Congress shall exercise its power in this respect, the law of the state, whether common or statutory, will govern. It is only a direct regulation of interstate commerce by the states, not a regulation incidentally affecting hut not directly burdening it, that is prohibited even in the absence of congressional legislation.</p>

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

<p>Municipal Coubt—when judgment affirmed. A finding of the trial court where supported by the preponderance of the evidence, will he affirmed on appeal.</p>

<p>Pledges—when conversion established. Held, under the evidence in this case, that there was an actual, absolute and unconditional tender by the pledgor and a refusal by the pledgee to accept such tender, and a consequent conversion of the pledge by the pledgee.</p>

<p>Assumpsit. Error to the County Court of.Cook county; the Hon. William C. DeWolf, Judge, presiding.</p>

<p>Evidence-—when proof of rental value incompetent. A definite contract having been established as to the amount to be paid for the use of real property, proof of its fair rental value is properly rejected.</p>

McKenzie Cleland, Judge, presiding. Statement by the Court. Defendant in error, Minerva Blair, brought suit in the Municipal Court against the plaintiff in error, the American Forwarding Company. A jury trial was had, resulting in a verdict and judgment against the defendant for $278.75, to reverse which the cause is before us on a writ of error.

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

<p>Action in debt. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.</p>

<p>Evidence—when as to general custom competent. Evidence of a general custom is competent to the effect that after a real estate agent authorized to collect rents has made a lease on behalf of the owner if his authority to collect rents is terminated he is entitled to a commission of two and one-half per cent, on the amount of rent for the unexpired term of such lease.</p>

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

<p>1. Negotiable instruments—what not promissory note. A contract providing for the payment of an indefinite sum of money is not a promissory note, negotiable or non-negotiable.</p> <p>2. Suretyship—what does not authorize writing of contract of guaranty over signature. If an instrument, not a promissory note negotiable or non-negotiable, has a signature on the back thereof, the holder of such instrument has no right to write a contract of guaranty above such signature.</p> <p>3: Statute oe Frauds—loftat not toriting sufficient to satisfy. A signature upon the back of an instrument not a promissory note negotiable or non-negotiable, is not such a writing as will support a parol contract of guaranty.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.</p>

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

<p>1. Insurance—casualty policy construed. Held, under the terms of the policy in question in this case, that it only covered such loss as an owner might sustain despite his having let the contract for erection to an independent contractor, either because, though not liable, he may nevertheless be made a party to an action, or because the circumstances of the accident might be such as to create a liability of an owner as well as of the independent contractor.</p> <p>2. Estoppel—what essential to establish. In order to establish an estoppel at law, a showing of damage must be made.</p> <p>3. Evidence—when testimony of deceased witness competent. The testimony of a deceased witness is competent in a subsequent action although the parties to the two actions are not the same if the issues are the same and the party against whom the evidence is offered had by representation the opportunity for cross-examination.</p>

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

Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Statement by the Court. This is an appeal from a decree of the Superior Court of Cook county, dissolving an injunction and dismissing appellant’s bill for want of equity.

<p>Contracts—cannot be varied. The terms of a written instrument cannot be varied by parol evidence.</p>

McKenzie Cleland, Judge, presiding. Statement by the Court. Plaintiff in error, a piano manufacturer in Chicago, brought suit in the Municipal Court to recover upon a contract for the sale of a piano, upon which $30 had been paid toward the purchase price of $350.

<p>Error to the Municipal Court of Chicago; the Hon. Adblor J. Petit, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.</p>

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

<p>Evidence—when as to value of professional services improper. If the question put to an expert as to the value of professional services did not recite all of the services rendered, the answer is improperly admitted over objection if such expert did not hear such testimony as to what services were rendered.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Certiorari denied by Supreme Court (making opinion final). Statement by the Court. Appellant, Chicago City-Railway Company, prosecutes this appeal to reverse a judgment recovered against it in the Superior Court of Cook county in favor of appellee for allegéd negligence, causing the death of Horace Tessier.

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. W. F. Cooper, Judge, presiding.</p> <p>Statement by the Court. August 10, 1910, complainant Bour filed a bill in the Superior Court for an injunction against the defendant, the Illinois Central Bailroad Co. The injunction prayed for was the only relief sought by the bill, and a temporary injunction was ordered and issued in accordance with the prayer of the bill. The defendant moved to dissolve the injunction for want of equity appearing on the face of the bill. The motion to dissolve was argued before Judge Chetlain of the Superior Court and taken under advisement. Judge Chetlain’s term of office expired December 3, 1910. January 16, 1911, Judge Cooper of the Superior Court entered, on notice to complainant, this order:</p> <p>“On motion of solicitor for defendant the clerk of this court is hereby ordered, upon the hearing of the evidence and the inspection of the minutes of Judge Chetlain in said cause, to enter of record of the date of December 3rd, A. D. 1910, the following order: ‘The injunction heretofore entered in this case is dissolved.’ ”</p> <p>January 25, 1911, he entered this order:</p> <p>“This day again come the parties by their respective solicitors and it appearing to the court that this cause has heretofore been considered upon the bill of complaint and a motion of the defendant to dissolve the temporary injunction heretofore issued herein for want of equity appearing upon the face of the bill and the motion to dissolve said injunction having heretofore been allowed and no relief having been prayed for in and by said bill, other than an injunction as therein prayed, now on motion of complainant’s solicitors it is ordered, adjudged and decreed that the said bill be and the same hereby is dismissed and thereupon complainant prays an appeal from the order dissolving said injunction and-from the order of January 16th, 1911, directing the clerk to spread of record nunc pro tuno as of December 3rd, 1910, an order dissolving said injunction and from the order dismissing his said bill and an appeal is allowed to the Appellate Court in and for the First District of Illinois upon a filing a bond in the sum of two hundred fifty dollars within thirty days.”</p> <p>The same day complainant filed his appeal bond and the next day filed in this court a transcript of the record, moved for an order to continue in force the injunction, and an order was entered extending the time for procuring such order.</p>

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

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

Lewis Riistakeb, Judge, presiding. Statement by the Court. The Johnson Express Company made and delivered to the appellant bank its promissory note for $20,000, payable to the bank, dated September 13, 1905, and executed a trust deed of that date conveying to Nicholas, trustee, certain real estate to secure the payment of said note which was recorded October 4, 1905.

<p>Contracts—what incompetent to show, as not in force. A contract between two parties capable of contracting, which was duly executed and delivered, cannot be affected by evidence of a verbal agreement made at the time of its execution that it should not go into effect until approved by a third party.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Coolt county; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>1. Corporations—right of stockholder to examine hooks. The right of a stockholder to examine the records and books of account of the corporation at all reasonable times, by himself or his attorney, is expressly guaranteed to him by the statutes of Illinois, and such right if denied will be enforced by mandamus.</p> <p>2. Mandamus—who not improper party. In a proceeding for a writ of mandamus to enforce the right of a stockholder to examine corporate hooks, held, that the treasurer of the corporation was not improperly joined and that under the pleadings in the cause the judgment for costs against such treasurer was not erroneous.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Oscab E. Heard, Judge, presiding. Statement by the Court. This is an appeal from a judgment of the Superior Court of Cook county for $4,500 rendered against the defendant Phelps in favor of the plaintiff Mueller for personal injuries alleged to be the result of the defendant’s negligence. The suit was originally brought in July, 1907, against Erskine M. Phelps and one Henry Jacobs.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

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

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>Appeals and errors—when findings of chancellor set aside. If findings of fact by the chancellor are not supported by the evidence they will be set aside and a decree predicated thereon reversed.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.</p>

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

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

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

Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Certiorari denied by Supreme Court (making opinion final). Statement by the Court. Appellant, Eliza Sowersby, brought an action in the Superior Court of Cook county upon a benefit certificate issued by appellee, Eoyal League, to her late husband, and payable upon his death to her his widow.

Charles N. Goodnow, Judge, presiding. Statement by the Court. The writ of error in this case brings before us. for review the action of the Municipal Court of Chicago in entering a judgment against plaintiff in error for want of an affidavit of merits.

Forcible detainer. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Statement by the Court. Plaintiff in error brought an action in forcible detainer in the Municipal Court of Chicago against defendants in error, to recover possession of certain premises. A trial was had before a jury, which found in favor of defendants. Defendants were in possession of the property under a contract of purchase from the grantor of plaintiff.

<p>Appeals and ebbqbs—what not subject to review. Orders entered after the issuance of a writ of error are not subject to review.</p>