Volume 160 — Illinois Appellate Court Reports

<p>Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>1. Evidence—what competent in action for deceit. A pamphlet containing representations published by the defendant is competent in an action for deceit where such pamphlet in part induced the plaintiff’s action.</p> <p>2. Evidence—as to what expert testimony competent. Malpractice in dentistry being charged, expert testimony as to the practicability of doing work in the manner in which it was done, is competent.</p> <p>3. Evidence—what competent as tending to show qualification of experts. In order to show that witnesses called as experts are qualified as such, it is competent to interrogate them as to treatises written by them pertaining to the subjects under inquiry.</p> <p>4. Evidence—aw to what expert testimony competent. Malpractice in dentistry being charged, expert testimony is competent as to the general prevailing practice of members of that profession; where a question put to a witness is localized a general objection is not sufficient to raise the question of competency.</p> <p>5. Evidence—what competent in action for deceit. Malpractice in dentistry by a corporation being charged against it, also deceit, it is not reversible error to show that no such person was engaged in the defendant’s business as the doctor supposed to have invented the process used.</p> <p>6. Trial—when improper remarles of counsel will not reverse. Notwithstanding remarks of counsel are improper and calculated unduly to influence the jury, yet a reversal will not be awarded if the reviewing court is unable to discover from the record that the jury were in any manner or to any extent influenced thereby to the material injury of the complaining party.</p> <p>7. Trial—effect of permitting jury to take withdrawn count. Reversible error is not committed in permitting the jury to take an entire declaration a part of which has been publicly dismissed or withdrawn in the presence and hearing of the jury.</p> <p>8. Practice—when refusal to submit special interrogatories will not reverse. Special interrogatories not submitted to the trial court prior to the commencement of argument may properly be refused.</p> <p>9. Verdicts—when not excessive. Held, in an action charging deceit and malpractice in dentistry, that a verdict of $3,000 was not excessive where the injury suffered consisted in loosening and injuring the natural teeth of the plaintiff and in causing other damage to the mouth of the plaintiff.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Homes Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Action of debt. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Mebbitt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.

<p>1. Fraternal benefit societies—what “good health” sufficient to sustain reinstatement. If a person enjoys such health and strength as to justify a reasonable belief, on the part of himself and others, that he is free from serious organic trouble, or from symptoms calculated to cause a reasonable apprehension of such derangement, and if to ordinary observers and outward appearance his health is reasonably such that he might, with ordinary safety, be insured, and upon ordinary terms, the requirement of “good health” is satisfied.</p> <p>2. Fraternal benefit societies—when forfeiture mil not he enforced. If the reinstatement was allowed by the society without fraud or concealment practiced upon it, without medical examination made by it, such society will not, after continuing to receive assessments and not moving in the lifetime of the insured to set aside the reinstatement, be allowed to enforce a forfeiture after death as against the beneficiary.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>1. Ordinances—validity of sanitary. An ordinance which requires one class of toilet equipment for certain buildings and permits a different equipment for another class of buildings, is valid.</p> <p>2. Ordinance <—when does not illegally delegate power. An ordinance pertaining to toilet equipment which designates the class of equipment which is to be used but which leaves the type to be such as will meet with the approval of the commissioner of health is not illegal.</p>

<p>Brokers and factors—when not entitled to real estate commissions. In order to sustain a recovery by a broker of real estate commissions it must appear that such broker was tbe procuring cause of tbe sale effected.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Verdicts—when not disturbed. If substantial justice bas been done and no error of law or fact appears, a reversal will not be awarded.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Appeals and errors'—failure to perfect joint appeal. An appeal perfected by one defendant only, pursuant to the granting of a joint appeal, will be dismissed on motion.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Robebt W. Weight, Judge, presiding. Heard in this court at the March term, 1909. Certiorari denied by Supreme Court (making opinion final).</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding. Heard in this court at the March term, 1909.

<p>1. Remittiturs—when not confession of excessiveness of verdict. A remittitur essential to bring the amount of recovery within the ad damnum is not to be construed as a confession of the excessiveness of the verdict rendered.</p> <p>2. Verdicts—when excessiveness not apparently the result of prejudice, etc. Held, under the evidence, which showed a fracture of the skull, a concussion of the brain and a serious scalp wound with resulting infection and a disturbed mental condition, that a verdict for $5,000 could not be said to be so plainly the result of passion and prejudice as to require that it be set aside.</p> <p>3. Contributory negligence—failure to loote and listen. “It is not the law of this State that the omission of a person to look and listen as he approaches a railroad crossing will bar a right of recovery in case of a collision resulting in injury, if the circumstances surrounding the accident are such as will excuse the person injured from a failure to look and listen.”</p> <p>4. Trial—when conduct of counsel will not reverse. Questions asked and answered indignantly in the negative will not be assumed to have been asked solely for the purpose of prejudicing the jury. Much must be left to the ethics of counsel subject to the supervisory power of the trial judge who has the opportunity of observation to prevent abuses.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, pre- siding. Heard in this court at the March term, 1909.

<p>Replevin. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>1. Agency—when principal liable for violation of exclusive grant. Where there is an exclusive agency and the principal violates the contract by making sales directly and knowingly within the exclusive territory, he is clearly liable.</p> <p>2. Measure oe damages-—in action for selling by principal within exclusive territory. If a principal sells merchandise within territory which it has exclusively granted to an agent upon commission it is liable to such agent for the commissions which would have accrued to him if he had made the sale in person.</p>

<p>1. Master and servant—effect of order of master. “When the servant is directed hy the master, or one who stands to the servant in the place of the master, to encounter a danger, and the servant, hy reason of such directions, does encounter the danger and is injured, the master cannot escape liability unless the danger which the servant is directed to encounter is so apparent that an ordinarily prudent person would not have encountered it, in which event the master escapes liability on the ground of contributory negligence on the part of the servant, rather than that of assumed risk.”</p> <p>2. Contributory negligence—when servant not guilty of. The verdict of the jury upon the question of contributory negligence will not be disturbed where it appears that they were justified in finding from the facts and circumstances that the deceased as an ordinarily prudent man, under the circumstances, did not know or appreciate or in the exercise of ordinary care would not know or appreciate that the instrumentality which resulted in his death was of such a character as might result in his injury.</p> <p>3. Evidence—when expert testimony competent. Evidence as to a proposition in physics, held, competent in determining questions of negligence involved where the accident resulted from an excessive strain applied to a plank.</p>

<p>Action in case. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Contracts—when purchase price of merchandise cannot he re-. covered. The purchase price of merchandise not delivered cannot be recovered for, where the contract provides that if such merchandise be not delivered at a specified time it shall become the property of the vendor, and where such vendor did not at the time when delivery was provided to he made have on hand sufficient merchandise to comply with the contract.</p>

<p>Brokers and factors—when real estate agent not entitled to commissions. If the owner provide that he shall receive a certain sum before the broker is entitled to any commissions, the broker must complete the sale and the owner must realize such specified sum before the broker can recover anything by way of commissions.</p>

<p>Landlord and tenant—when latter cannot deny title of former. So long as the relation of landlord and tenant exists and is fixed by an outstanding lease under seal the tenant cannot deny the title of his landlord.</p>

<p>Practice—when application for nonsuit properly allowed. After a demurrer sustained and leave given to amend it is not error to apply for and be entitled to a nonsuit, no submission for trial upon the merits having been made.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>No. 15289. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p> <p>No. 15366. Error to the Municipal Court of Chicago; the Hon. Sheridan E. Frye, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Reversed and remanded. Opinion filed March 21, 1911.</p>

<p>1. Evidence—what not proper upon cross-examination. Cross-examination is properly restricted to interrogation as to those matters elicited upon direct examination.</p> <p>2. Interest—when allowable as upon money due under a written instrument. If a document is signed in blank -which blank is subsequently filled in by another acting as the agent for the signer, money due thereunder is due as upon a written instrument and interest may he allowed pursuant to statute.</p> <p>3. Witnesses—who not competent Toy virtue of interest. A party defendant is incompetent to testify as to a conversation had with a deceased agent of the plaintiff.</p>

<p>Attachment. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Vebdicts—when not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence unless clearly and manifestly against its weight. (See Steidtmann v. Joseph Lay Co., 234 Ill. 84.)</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Solon Philbrick, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Dram-shops—what petition requesting submission of proposition to voters in compliance with law. Held, that the following petition requesting the submission of the proposition as to whether the town in question should continue to be anti-saloon, was a compliance with the law.</p> <p>“The undersigned, resident and legal voters of the town of St. Charles in the county and state aforesaid, respectfully petition that you cause to be submitted in the manner provided by law to the voters thereof at the next election, the proposition ‘Shall this town continue to be anti-saloon territory?’ ”</p>

<p>Distress for rent. Error to the County Court of Lake county; the Hon. De Witt L. Jones, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Action in case. Appeal from the Circuit Court of Marshall county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>1. Insurance—when township company waives provisions of policy as to location of property covered. Held, under the evidence, that notwithstanding the original policy contemplated that the property covered was located in a particular township, yet there was a waiver of the terms of the policy in that respect and that the company was liable upon destruction of such property in another township.</p> <p>2. Insurance—how policy to he construed. An insurance policy should be liberally construed in favor of the insured as the language of the policy is that of the company and is intended to give indemnity if possible.</p>

<p>Error to the Circuit Court of Bureau county; the Hon. R. M. Skinner, Judge, presiding. Heard in this court at the October term, 1910.</p>

Action commenced before justice of the peace. Error to the Circuit Court of Bureau county; the Hon. R. M. Skinnee, Judge, presiding. Heard in this court at the October term, 1910.

<p>Assumpsit. Error to the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>1. Administration of estates—power of prolate courts with respect to persons presumptively dead. Probate courts have power to administer the estates of persons proven by eye witnesses to be dead and of persons presumptively dead.</p> <p>2. Jurisdiction—when court of chancery not ousted. If a suit he instituted in chancery to determine the ownership of a trust fund, the question to he ascertained being as to when a cestui que trust died, the grant of letters of administration by the Probate Court and the making of a finding as to the date of the death of such cestui que trust does not affect the jurisdiction of chancery in such suit.</p> <p>3. Presumptions—as to death from, absence. Death from absence is presumed to have occurred seven years after disappearance unless the facts and circumstances establish an earlier death.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Lake county; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the October term, 1910.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding. Heard in this court at the October term, 1910.

<p>Appeal from the Circuit Court of Lee county; the Hon. R. S. Fabband, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>1. Fixtures—what are trade. Held, under the evidence, that certain improvements being of a temporary character and made for the purpose of determining whether ore might be properly mined, were trade fixtures and subject to removal by the lessee or his assigns.</p> <p>2. Fixtures—when cannot he removed. If the lessee has failed to comply with his lease and abandoned the premises he cannot remove trade fixtures, and a custom of the locality cannot he invoked to change the rights of the parties as fixed by the terms of the lease.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1910.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1910.

<p>Partition—section 34 of act construed. When a dower, life or homestead interest in land is sold with the assent of the owner thereof the value thereof is to he determined by using the proceeds of the sale as the basis of the computation to he made.</p>

<p>Assumpsit. Appeal from the Circuit Court of Whiteside county; the Hon. F. D. Ramsay, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>1. Agency—effect of representation of adverse interest. If a person acts as agent of both, principals whose interests are conflicting without the knowledge of either that he is acting for the other, his acts may be avoided by either principal.</p> <p>2. Sales—when title to personal property passes. The rule established by the courts of this state is that in the sale of personal property when anything remains to be done to complete the contract, such as ascertaining the quantity or delivering possession, the title does not pass until these things are done.</p>

<p>Brokers and factors—when real estate agent entitled to commissions. If an agent is instrumental in bringing the parties together he is entitled to his commissions regardless of the fact that the owner himself concluded the sale upon a price less than and upon terms different from those at which the agent was authorized to sell.</p>

<p>Quo warranto. Appeal from the Circuit Court of Late county; the Hon. Robert W. Wriqht, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Damages—when instruction in action for death caused T>y wrongful act erroneous. It is error to authorize the jury to render damages with respect to pecuniary loss for the benefit of those as to whom pecuniary loss is not presumed in the absence of proof that pecuniary loss was sustained.</p>

Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the October term, 1910.

<p>Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Putekbaugh, Judge, presiding. Heard in this court at the October term, 1910.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugec, Judge, presiding. Heard in this court at the April term, 1910.

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1910.</p>

Action commenced before justice of the peace. Error to the Circuit Court of Putnam county; the Hon. T. N. Gbeen, Judge, presiding. Heard in this court at the October term, 1910.

<p>Bastardy proceeding. Appeal from the County Court of Carroll county; the Hon. J. D. Turnbaugh, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Spendthrifts—section IS of act construed. The statute which provides that the contracts of a spendthrift etc. made 1 during the pendency of an application for the appointment of a conservator may he avoided, gives to the conservator when appointed the right of avoidance irrespective of the contract in question having been induced by fraud. ,</p>

<p>Liens—when fund impressed with. If a certificate gives to the holder the right to a certain amount of the fund when collected providing that such holder be Chargeable with a proportion of the share of the expense of collection, the fund when collected becomes charged with a lien; and if the fund can be traced as having gone into the hands of a receiver of the party who collected the same it may be recovered. If, however, the fund cannot be so traced the holder of such certificate is a mere general creditor. If, however, the receiver made the collection the fact of his having mixed the fund collected with other moneys does not prevent the enforement of a lien against him.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Knox county; the Hon. R. J. Grier, Judge, presiding. Heard in this court at the October term, 1910.

Action commenced before justice of the peace. Appeal from the Circuit Court of Lake county; the Hon. Chaeles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1910.

<p>Assumpsit. Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Fabrand, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Contributory negligence—when chauffeur injured in collision guilty of. Held, under the evidence, that a chauffeur injured in a collision with a street car was guilty of such contributory negligence as barred his recovery. ___</p>

<p>1. Negligence—what does not affect actionable character of. The fact that a railroad company may have been guilty of negligence which contributed to the injury complained of does not excuse a traction company from liability for its negligence likewise contributing to such injury.</p> <p>2. Negligence—when traction company guilty of. It is negligence for the servants of a traction company to go upon railroad tracks at a time when they know a passenger train is due with a car the propelling appliances of which are known to them to be out of order, and if the car remained stationary upon the track for some time before being struck it was likewise negligence for such servants not to warn the passengers to leave the same.</p> <p>3. Variance—when objection for, comes too late. An objection for variance not made in the trial court where an amendment might be made cannot afterwards be successfully interposed.</p> <p>4. Evidence—as to what opinion of physician competent. A physician who has attended an injured person from the time of the accident to the trial and who has testified to the injury suffered, may properly be permitted to give his opinion as to the permanency of such injuries.</p> <p>5. Instructions—when reference to declaration not erroneous. It is not error to refer to the declaration in an instruction notwithstanding there is no evidence to support some one or more of the counts thereof.</p> <p>6. Instructions—when refusal of correct will not reverse. The refusal of an abstract proposition of law although correct in form will not reverse.</p> <p>7. Verdicts—when not excessive. Held, in an action on the case for personal injuries that a verdict for $6,000 is not excessive where there was evidence tending to show injury to the thigh, abdomen, and womb, with resulting hemorrhages and morbidity, and where the evidence tended to show in addition to pain and suffering that a permanent injury had been inflicted.</p> <p>8. New trial—when newly discovered evidence not ground for. Newly discovered evidence which merely goes to the amount of the damages does not require the awarding of a new trial.</p>

<p>Divorce—when denied to both husband and wife. The divorce law is for the relief of an oppressed party and the courts will not interfere in quarrels where both parties are guilty of reciprocal excesses and outrages; where each party has given a cause for divorce of the same statutory character neither can complain of the other.</p>

<p>Assumpsit. Appeal from the County Court of Rock Island county; the Hon. Robebt W. Olmstead, Judge, presiding. Heard in this court at the October term, 1910.</p>

Bill for accounting. Appeal from the Circuit Court of Knox county; the Hon. R. J. Grier, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Bill in equity. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1910.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).

Action in case for personal injuries. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1910.

Action in case for personal injuries. Appeal, from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, pre- siding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Mechanic’s lien. Appeal from the Circuit Court of Rock Island county; the Hon. Prank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farband, Judge, presiding. Heard in this court at the October term, 1910.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farband, Judge, presiding. Heard in this court at the October term, 1910.

<p>Muntcipaí corporations—when not liable for legal services. A city cannot lawfully contract to pay for legal services rendered in a suit to winch the city is not a party brought for the purpose of establishing the title to city offices.</p>

<p>Error to the Circuit Court of Grundy county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Mandamus. Appeal from the Circuit Court of Kankakee county; the Hon. Chaeles B. Campbell, Judge presiding. Heard in this court at the October term, 1910.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1910.

<p>Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. Richaed S. Faeeand, Judge, presiding. Heard in this court at the April term, 1910.</p>

Action commenced before justice of tbe peace. Error to the County Court of Lake county; tbe Hon. De Witt L. Jones, Judge, presiding. Heard in this court at tbe October term, 1910.

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Lee county; the Hon. R. H. Scott, Judge, presiding. Heard in this court at the October term, 1910.

Certiorari. Error to the Circuit Court of Bureau county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Foreclosure. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>1. Sepaeate maintenance—when complainant entitled to decree. If the complainant continues to live in the home supplied by the defendant, using the credit of defendant for her necessaries and receiving in addition a cash allowance, she is notwithstanding living separate and apart without her fault if the defendant is living elsewhere in an adulterous state, inasmuch as said complainant would have the right to leave such home upon the defendant returning there.</p> <p>2. Sepaeate maintenance—how amount of allowance determined. The amount of the allowance in separate maintenance is to be based upon a consideration by the court of the property and income of the parties, their ages, health, habits, social condition and circumstances in life and the misconduct of the defendant.</p> <p>3. Sepaeate maintenance—when allowance for solicitor's fee excessive. An allowance predicated upon the solicitor for the complainant going to California to take depositions of witnesses who have already made statements as to their knowledge, is improper inasmuch as evidence could be taken by depositions at a much less expense than that imposed upon the defendant. Held, likewise, that an allowance of $25 per day for ten days to prepare for trial was under the evidence in this case excessive, but that under such evidence a trial fee of $300 was not excessive.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Drainage—when and to what extent district liable for land tafeen and, damaged,. A drainage district which widens a ditch maintained by it beyond the right of way which has been lawfully acquired, is liable to the owner of the land taken for the market value thereof. If such district in doing such work renders worthless other land of the plaintiff for any purpose other than that of the drainage district, it is likewise liable for the market value of such land. If, however, the land not taken but damaged is rendered worthless to the owner the district is liable for the depreciation caused by it.</p>

Bill to contrue will. Appeal from the Circuit Court of Kane county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Assumpsit. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Verdicts—when set aside as against the evidence. A verdict contrary to the clear preponderance of the evidence will be set aside on review, and in this case the judgment rendered upon such verdict was reversed with a finding of fact.</p>

<p>1. Executors and administrators—powers of administrator with will annexed. An administrator with the will annexed succeeds to the duties and powers of the executor which result from the nature of his office as executor but not to those in the nature of a personal trust or confidence.</p> <p>2. Executors and administrators—liability for expenses incurred in defending against gttack upon will. It is the duty of an executor to defend the will which appoints him in the first court in which it is assailed and until it has been adjudged invalid by some court. If he acts in good faith and not from motives of personal interest, or in the interest of part of the devisees, and is not charged with fraud or undue influence in procuring the will, then the costs and reasonable expenses incurred in making such defense should be borne by the estate and not by the executor personally.</p> <p>3. Practice—when propositions of law not required. In a proceeding to contest an administrator’s report the parties are not entitled to a trial by a jury and the presentation of propositions of law in such a case is not proper.</p>

<p>1. Corporations—when restriction upon transfer invalid. A clause in a certificate of stock to the effect that it is transferable only to some person first approved by the board of directors of the corporation issuing it, is an illegal restriction upon the right of a stockholder to transfer his stock and one which a corporation has no right to make.</p> <p>2. Corporations—when option to re-purchase stock valid. An option expressed upon the face of a certificate giving to the corporation the right of re-purchase upon certain terms, is valid where no right of creditors is affected, and a person acquiring such a certificate obtains no greater rights than the party had to whom it was originally issued.</p> <p>3. Pleading-—when demurrer not carried hack. A demurrer will not be carried back to a pleading to which a demurrer has already been filed and overruled.</p>

<p>Vebdicts—when not disturbed. The mere fact that upon the second trial of a case there has been a suspicious change in the testimony on a material fact, will not require a reversal.</p>

<p>Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Gkaves, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>1. Malpractice—when verdict excessive. Held, under the evidence, in such case that a verdict for $6,000 although it was reduced by remittitur to $4,000, for which amount judgment was rendered, was so excessive as to call for a reversal of the judgment.</p> <p>2. Appeals and errors—when exception must be preserved. Rulings upon evidence are not subject to review in the absence of exceptions having been preserved thereto.</p> <p>3. Instructions—when erroneous in assuming liability. If there are two defendants to an action, one of whom may under the evidence be found guilty and the other not guilty, it is error to give intructions which assume that if one defendant is liable, both are liable.</p>

<p>1. Appeals and errors—effect of former decision. The decision of the Appellate Court upon one appeal becomes the law of the case in all subsequent appeals.</p> <p>2. Instructions—when need not sum up all issues. If an instruction does not conclude with a direction that the jury shall find one way or the other, it need not sum up all the issues in the cause. '</p>

<p>1. Dbam-shops—right to dismiss as to defendants. In an action of tort brought under the Dram-shop Act a plaintiff may before a trial or during the trial dismiss defendants from the action without impairing the right to proceed against the defendant or defendants remaining.</p> <p>2. Dbam-shops—what evidence incompetent in action brought under section 9 of act. Held, in this case, that evidence was incompetent which was to the effect that the husband of the plaintiff swore at the plaintiff and her children, would fall over them and pull their hair and would put his hands on the plaintiff’s lady boarders, swear at them and soil their clothes; such evidence while calculated to produce prejudice and enhance the damages awarded, did not tend to establish either a cause of action or the fact of damage.</p> <p>3. Dbam-shops-—what not essential to sustain recovery under section 9 of Act. Showing that the defendants were licensed to sell liquor is not essential; if the proof is ample to show that the defendants were engaged in running dram-shops where intoxicating liquors were sold by the drink for money, a recovery will be sustained in an action under section 9.</p> <p>4. Dbam-shops—when instruction in action under section 9 proper. In such an action instructions in the language of the statute are proper.</p> <p>5. Insteitotions—when error will not reverse. Error in an instruction complained of will not reverse if the particular error existing is not pointed out.</p> <p>6. Instructions—when as to form of verdict erroneous. An instruction upon this subject as follows is erroneous, the case being a close one and the evidence being such that some of the defendants might have been found guilty and others not guilty.</p> <p>“If you find the issues for the plaintiff you will for your verdict say: ‘We the jury find the defendants guilty and assess plaintiff’s damages at’ (here insert the amount). If you find the issues for the defendants, you will for your verdict say: ‘We the jury find the defendants not guilty.’ ”</p>

<p>1. Recognizances—what not defense tomaetion upon. A person under a recognizance to appear and answer a charge against him cannot disregard his obligation to appear, and afterwards, in a scire facias proceeding upon the forfeited recognizance, attempt to justify his default on the ground that the statute upon which the charge was based is unconstitutional.</p> <p>2. Recognizances—when refusal to set aside default not error. A motion'to set aside a default entered upon a recognizance is addressed to the sound legal discretion of the trial court and the exercise of such discretion will not be interfered with in the absence of a showing of abuse.</p> <p>3. Pish—jurisdiction of charge of hilling, Toy use of dynamite. Of such a charge both justices of the peace and the county courts have jurisdiction.</p> <p>4. Judgments—what does not aid. A bill of exceptions cannot aid the record as to the judgment for the reason that the record must contain the judgment of the court while the bill of exceptions is only the statement of the parties.</p> <p>5. Judgments—when void. An entry as follows: “Judgment on verdict for $200 and costs,” is void as it does not purport to be for or against any party; held, that such entry was likewise void as a judgment because it did not correspond with the verdict rendered.</p>

<p>1. Nuisances—when public. It is a public nuisance to obstruct or impede without legal authority the passage of any navigable river or waters.</p> <p>2. Nuisances—when individual may maintain action on account of. The general rule is, that a public nuisance can only be proceeded against by public prosecution. There is, however, the exception to the general rule, that when a person sustains from a common nuisance a special damage different from that common to all the public he may have an action for damages therefor, but the injury must be special and peculiar to him, and different in kind and not merely in degree.</p> <p>3. Nuisances—when obstruction of navigation does not confer right of action. A steamship company cannot successfully maintain an action against a railroad company which has obstructed the navigation of a river by the building of a bridge prior to the time that such company embarked in business. The deprivation of the use of the most economical route for the carrying of freight while establishing a damage is only a -damage of a kind common to the public as a whole and will not support an action.</p>

<p>Error to tbe Municipal Court of Chicago;'tbe Hon. Sheridan E. Pry, Judge, presiding. Heard in tbe Branch Appellate Court at tbe March term, 1909.</p>

<p>1. Contracts—when do not hind municipal corporation. Held, that the document in question in this case was for various reasons specified in the opinion not a contract so entered into and executed as to he binding upon the municipality sought to be charged thereby.</p> <p>2. Contracts—hy whom question of validity determined. It is for the court to pass upon and determine the validity and binding effect of a contract.</p> <p>3. Instructions—when giving of erroneous, will not reverse. If it appears that substantial justice has been done the giving of erroneous instructions will not reverse.</p> <p>4. Evidence—self-serving declarations incompetent. A letter written by plaintiff to the mayor of a city setting up the claim of plaintiff against said city if self-serving in character is incompetent even though incorporated in the declaration filed on behalf of said plaintiff.</p> <p>5. Trial—when conduct of juror will not reverse. A personal test by a juror of a sample of material submitted to the jury for their inspection and examination, held, not ground for reversal.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>1. Common carriers-—by what law contract of shipment governed. A contract of shipment made in another state is to be governed by the laws of that state both as to interpretation and effect.</p> <p>2. Common carriers—effect of acceptance of express receipt. Under the laws of New York in the absence of fraud, misrepresentation or concealment, the acceptance of such a receipt containing limitations upon the amount of the recovery unless the true value of the merchandise shipped is stated in the receipt, is valid and enforceable as a contract.</p> <p>3. Contracts—when laws of another state enforced. The law of the place of the contract will be enforced in our courts although opposed to the law of this state, unless to enforce it would contravene our criminal laws, or would sanction vice or immorality, or be opposed to natural justice, or transgress a positive prohibition of law, or be opposed to the general interests of our citizens.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Certiorari denied by Supreme Court' (making opinion final).

<p>Divorce. 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, 1910.</p>

<p>Injunctions—what essential to granting without notice. To avoid the necessity of notice under the statute the complainant must show such facts by sworn statements, either in the bill or by affidavit, as will lead the court to the conclusion that the rights of the complainant will be unduly prejudiced if notice be given before the writ issues.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Abthub H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richaed S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanaqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodobe Beentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>1. Corporation's—what not defense to action to enforce stock liability. “In an action by a creditor of a corporation against a stockholder to enforce his individual liability to creditors for an amount equal to his stock in the corporation the stockholder will not be allowed to set off against his liability an indebtedness of the corporation to him.”</p> <p>2. Corporations—when action lies to recover stock liability under section 25 of act. If a creditor has obtained a judgment against a corporation and has obtained a return of execution no property found he may maintain an action agaist a stockholder to collect his unpaid subscription without showing that the assets of the corporation defendant had been exhausted.</p>

<p>Receiverships—when claim sounding in tort rejected. There is no rule of law which permits one claiming a right of action for a tort against a corporation in the hands of a receiver to sue for and recover against the receivers, either at law or in equity, the damage so suffered by him.</p>

<p>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, 1909. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Receiverships—-when right of receiver to maintain action cannot he questioned. Appellees who have filed no cross errors and who are asking the Appellate Court to affirm a decree granted in their favor, cannot urge that a receiver who instituted the action is not entitled to maintain the same.</p> <p>2. Corporations—status of pledged stock fraudulently issued. Stock in a bank fraudulently issued without having been paid for is void and an innocent pledgee thereof for value acquires no greater rights than the owner of such stock had.</p> <p>3. Corporations—liahility for fraudulent issuance of stock. A' bank is not liable to the purchaser or pledgee of stock from an officer of such bank who has conspired with other officers of such bank to have such stock issued to him without having been paid for.</p>

<p>Separate maintenance—when wife entitled to. Even though the separation may have been induced by the fault of the wife, her right to support from her husband is not lost unless such fault was sufficient to entitle the husband to a decree of divorce.</p>

<p>1. Criminal law—spiritualism defined. Spiritualism may be defined as a belief in the power of some departed spirits to communicate with the living by means of mediums.</p> <p>2. Ordinances—prohibiting fraudulent practices in the name of spiritualism construed. The ordinance in question in this case, held, not intended to declare a belief in, or tbe practice of, spiritualism as unfounded, but to be aimed at fraudulent and deceptive practices in tbe name of spiritualism.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Fbeeman K. Blake, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Abthub H. Chetlain, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>Foreclosure. Appeal from the Superior Court of Cook county; the Hon. Abthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook</p> <p>county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>1. Appeals and errors—when hill of exceptions may he considered. A bill of exceptions in the Municipal Court if tendered within the statutory time may be considered on review although not approved until after such time.</p> <p>2. Assault and battery-—when indictment sufficient. An indictment charging assault and battery may be sufficient without the use of the word “unlawful.”</p>

<p>1. Contracts—when evidence of custom competent. Evidence as to the meaning in a business or trade of the words or terms employed, or, indeed, of usages or customs in a trade explaining a contract, held, in this case, not only competent hut necessary to a proper trial.</p> <p>2. Contracts—what competent to determine true meaning. It is error to permit a witness to place his meaning upon terms employed by him without showing that the other party to the contract recognized such meaning or that such meaning was the usually accepted meaning in the trade or calling in question.</p> <p>3. Depositions-—when motion to suppress not essential. If questions and answers are wholly incompetent, based upon a wrong theory of the law of evidence and the rights of the parties, a motion to suppress is not essential but objections at the trial are proper and in apt time.</p> <p>4. Copyrights.—when question of existence pertinent. In a suit for royalties, held, under the evidence, that the question whether the play in question was copyrighted, was pertinent upon the question of liability.</p> <p>5. Copyrights—when question of existence may he determined hy state courts. Contracts which have for their subject-matter patents and copyrights are within the jurisdiction of the state courts although the direct question of the validity of the apparent grants may not be.</p>