Volume 161 — Illinois Appellate Court Reports

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.</p>

<p>1. Administration of estates—how section 70 construed. Section 70 of the Administration Act which bars claims against an estate if not presented within the prescribed time, is to be strictly construed and its operation is not to be extended beyond the letter of the statute as at present construed by the courts of this state.</p> <p>2. Administration of estates—what claims not tarred ty section 70. Failure to present against a decedent’s estate within the time fixed by section 70 of the Administration Act, does not bar equity from granting relief as against a claim or claims which consist in an obligation imposed by a decree of divorce to pay taxes, assessments and the cost of repairs on premises conveyed to the wife of such decedent pursuant to such decree under a covenant of such decedent made binding upon his executors and administrators to pay such obligations as they arise during the lifetime of such wife.</p>

<p>Criminal law—what not breach of peace. Held, under the evidence in this case, that the defendant’s conduct, which was induced by the serving of a replevin writ upon her, was not of such a character as to amount to a breach of the peace, and a conviction therefor is reversed.</p>

<p>1. Appeals and errors—when denial of continuance not considered on review. An error predicated upon a refusal to grant a continuance will not be considered on review where the record does not show the ground upon which the continuance was asked.</p> <p>2. Criminal law—when conviction of selling cocaine sustained. Held, under -the evidence in this case, that the conviction of selling cocaine contrary to ordinance was sufficiently sustained by the evidence adduced.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Municipal Coubt—when nothing presented for review. If the bill of exceptions does not set out the evidence and does not contain any findings of fact there is nothing which is presented which will enable the Appellate Court to determine whether the trial court correctly applied the law, and an affirmance will be entered, no other rulings being complained of.</p>

<p>1. Pleading—when recovery may he had under common counts. If nothing remains to be done but the payment of money pursuant to a contract for the delivery of merchandise, a recovery may be had under the common counts.</p> <p>2. Contracts—what acceptance of merchandise. Held, where merchandise was delivered under a written contract which contained certain provisions with respect to acceptance or rejection, that use and operation of a part of such merchandise implied an acceptance of that part, and that no right to accept a part being preserved by the contract, the acceptance was to he deemed as an acceptance of the whole. Held, further, that if a part of the merchandise so accepted was defective, a right to recoup damages for the defective part existed.</p>

<p>Bastardy—when -finding set aside. A finding upon which a judgment of conviction of bastardy is predicated will he set aside where clearly and manifestly against the weight of the evidence.</p>

<p>1. Pleading—form of indictment where ordinance or statute forbids an alternative. In this case the court quotes with approval the holding in Blemer v. People, 76 Ill. 265: “Where a statute forbids several things in the alternative, it is usually construed as creating but a single offense, and the indictment may charge the defendant with committing all the acts, using the conjunction and where the statute uses the disjunction or.”</p> <p>2. Ordinances—when conviction of producing memorandum not result of actual weighing sustained. Held, that the conviction in this case which was for the violation of an ordinance prohibiting, among other things, the producing of “a false and fraudulent memorandum which was not the result of an actual weighing of the produce” delivered, was proper, and that the instructions given were not prejudicial.</p>

<p>Error to the Circuit Court of Wabash county; the Hon. William H. Green, Judge, presiding.</p>

<p>1. Statutory law—how act of revision construed. Different parts of a revisory act which relate to the same subject-matter, being passed at the same time, are to be construed together as though they were parts of the same enactment.</p> <p>2. Mines and miners—sections 28 and 28 of act construed. Held, that the top and bottom man provided for in section 23 are the same as those referred to in section 28 and the times fixed for them to be at their respective posts of duty is governed by said section 28, and that such times are at least thirty minutes before the hoisting of coal commenced in the morning and at least thirty minutes after the hoisting of coal.has ceased at night.</p>

<p>Action in ease. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.</p>

<p>Verdicts—when not disturbed where issue is as to whether bell was rung. Where the evidence upon the question of the ringing of a bell or the sounding of a whistle, and upon the question of the exercise of reasonable care in driving upon a crossing, is conflicting, it is the peculiar province of the jury who saw and heard the witnesses testify, to determine the facts, and in such state of the evidence it is not the rule to disturb the verdict in the absence of erroneous rulings, but the verdict is to be accepted as decisive of such questions.</p>

<p>Error to the County Court of Effingham county; the Hon. Michael O’Donnell, Jjidge, presiding.</p>

<p>Error to the Circuit Court of Williamson county; the Hon. Thomas M. Harris, Judge, presiding.</p>

<p>1. Pleading—when several counts constitute single information. Held, that the several counts of the Information in question in this case constituted one information and not several, notwithstanding a repetition of the recital in several counts, “Now comes into court” the state’s attorney, etc.</p> <p>2. Pleading—what not essential conclusion of counts of informar ■ tion. It is not necessary that the counts of an information should conclude against the form of the statute or against the statute.</p> <p>3. Continuance—when denial for absence of witness not erroneous. Unless due diligence by issuing of a subpoena or otherwise is shown, the denial of a continuance because of the absence of a material witness is not erroneous.</p> <p>4. Judgments—when presence of defendant in criminal case sufficiently established. “Where the prisoner’s presence in court can by fair intendment be collected from the record, that is sufficient.”</p> <p>5. Dbam-shops—when conviction for selling of intoxicating liquor in anti-saloon territory established. Held, that the evidence in this case was sufficient to sustain the conviction appealed from.</p> <p>6. Dbam-shops—what evidence competent in prosecution for selling intoxicating liquor in anti-saloon territory. In a prosecution for the selling of intoxicating liquor in anti-saloon territory an exemplified copy of the issuing of an internal revenue tax stamp by the United States revenue collector, is competent as tending to show the liquor sold was of the kind for which the government required the payment of a tax and also as tending to show that such liquor was intoxicating in character.</p> <p>7. Instructions—whew upon circumstantial evidence inaccurate in criminal case. An instruction is inaccurate which tells the jury that circumstantial evidence is sufficient if it satisfies their minds beyond a reasonable doubt of the defendant’s guilt and if from all the evidence in the case, both circumstantial and direct, the jury believed the defendant guilty they should so find,—in that such instruction leaves out the element that the jury should believe the defendant guilty beyond a reasonable doubt. Held, however, in this case, that this instruction did not constitute a ground for reversal because the omitted element was supplied in other instructions given.</p>

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

<p>Action in case for personal injuries. Appeal from the Circuit Court of Perry county; the Hon. Louis Bernreuter, Judge, presiding.</p>

<p>1. Evidence—effect given to verbal admissions. Verbal admissions should be received with great caution. They are frequently unreliable and entitled to little weight and are subject to imperfection and mistake.</p> <p>2. Verdicts—when set aside. A verdict manifestly excessive and against the weight of the evidence will be set aside on review.</p>

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

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jasper county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>Instructions—when peremptory instruction for plaintiff proper. A peremptory instruction for the plaintiff is proper if the evidence establishing the plaintiff’s right to recover was clear, uncontradicted and free from conflict.</p>

<p>1. Measure oe damages—for injuries arising from the building of structures which result in injuriously affecting other property. In this case the authorities are reviewed by the court and the various measures of damages as decided in such authorities are pointed out.</p> <p>2. Nuisances—what may be regarded as permanent. A dam constructed by a railroad company of earth and riprapped for the purpose of holding water in a stream, which results in flooding the lands of another, may, in the absence of any testimony that it was not to be permanent, properly be regarded as a permanent structure and negligently constructed, and the injured party may elect to treat it as permanent and sue for all damages past, present and future.</p>

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

<p>Exceptions to administrator’s report. Appeal from the Circuit Court of Jasper county; the Hon. Thomas M. Jett, Judge, presiding.</p>

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

<p>Evidence—what incompetent in action for alienation of affections. Efforts at reconciliation predicated upon conversations between husband and wife, are incompetent in an action for alienation of affections.</p>

<p>1. Accord and satisfaction—effect of covenant not to sue. A covenant not to sue one tort feasor or an agreement to dismiss one tort feasor out of the suit and thereafter not to sue him, is not the equivalent of a release which will discharge another tort feasor, hut the amount paid for such covenant may be shown by such other tort feasor in reduction of damages.</p> <p>2. Chancery—when remedy at law precludes resort to. If one tort feasor buys his peace by paying a sum of money in consideration of the giving to him of a covenant not to sue, the other tort feasor knowing of such transaction prior to the overruling of a motion for a new trial and failing to avail of such knowledge to obtain reduction of the damages awarded, by way of remittitur or otherwise, is precluded from resorting to a court of equity.</p>

<p>Assumpsit. Appeal from the Circuit Court of Bond county; the Hon. W. E. Hadley, Judge, presiding.</p>

<p>1. Injunctions—when granted to prevent trespass. The granting of injunctions against the commission of a trespass is sparingly exercised and is confined to cases where from the peculiar nature of the property affected by the trespass, or from its frequent repetition, the injury cannot be remedied by an action for damages, and where it may therefore be properly termed irreparable.</p> <p>2. Injunctions—when suggestion of damages properly stricken. If suggestion of damages is not filed until after the suit is finally disposed of, it is properly stricken from the files.</p>

<p>Action of debt. Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. John B. Vaughn, Judge, presiding.</p>

<p>1. Suretyship—when proof of damnification essential to recovery. If A assumes the obligation of B, as between A and B, B is the principal debtor; and before A can recover of B, he must show that he has been damnified by the failure of B to perform his obligation.</p> <p>2. Instructions—when, as to whether instrument became binding as a promissory note, proper. Held, that an instruction was proper which was to the effect that although the defendant signed the note in question yet such signature alone would not make such note valid and that before such note would be valid it must further appear that the same was delivered to the payee with the intention that it should become a valid and binding instrument, and that if the jury found from the evidence that it was understood between the plaintiff and the defendant that such note should be signed by the defendant’s wife before the same should become valid, then the said note never became a valid and binding instrument.</p>

<p>1. Replevin—when judgment though informal sufficiently orders return of property. Held, that the following judgment though not technically formal, sufficiently ordered a return of the property replevied:</p> <p>“It is therefore considered and adjudged hy the court that the defendant have and recover of the plaintiff the costs by him in this behalf expended and that he have execution therefor, and it is further ordered and adjudged by the court that a writ of retorno habendo issue as the law directs for the return of the property mentioned and described in the writ of replevin.”</p> <p>2. Amendments and jeofails—power of court to amend judgment after lapse of term. Where in a court of record a mistake has been made in the entry of a judgment, and there is a minute, entry, pleading or files in the cause, by which the court is able to see that the record, as made, does not correctly represent his actions, he has the power, at a subsequent term, to amend and correct such record in accordance with the facts so as to sustain the rights of the parties. Held, in this case, that the fact that the court in its minutes awarded a writ of retorno was sufficient evidence to warrant the court in finding that the court in fact gave judgment that the property be returned.</p>

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

<p>1. Pabties—when joint action does not lie. Two laborers separately employed who show no joint interest in the compensation to be paid to them respectively, are not entitled to maintain a joint action.</p> <p>2. Pasties—how action should proceed upon death of co-partner. If an action be instituted by co-partners, upon the death of one co-partner the action should proceed by the remaining partner as “surviving partner.”</p> <p>3. Wages—when attorney’s fees improper in action for. If no written demand has been made on the defendant at least three days before suit is brought for a sum not exceeding the amount found due, an allowance for attorney’s fees is improper. The statute must be complied with in every particular to entitle the plaintiff to recover attorney’s fees.</p> <p>4. Appeals and ebbobs—effect of appellee’s failure to file brief. In the Fourth District the failure of the appellee to file a brief is ground for a pro forma reversal.</p>

<p>1. Master and servant—when doctrine of assumed risk applies. If the device which caused the injury was simple and easily understood by any person of ordinary intelligence; if, likewise, the alleged defects were open and obvious and the dangers thereof equally plain and obvious; and if, further, the evidence shows that the plaintiff thoroughly understood and appreciated them, the doctrine of assumed risk applies and a recovery in favor of the servant will not be sustained.</p> <p>2. Master and servant—what does not prevent application of doctrine of assumed risk. As to defects and dangers which are open and obvious, which are presumed to be known and appreciated by the servant, the law will not permit a recovery even though such servant testified that he did not see such defects and did not comprehend the dangers thereof.</p> <p>3. Master and servant—what essential to recovery for failure of former to furnish safe place. In order for a servant to recover for the failure to furnish a reasonably safe place in which to work or a reasonably safe appliance with which to work, he must allege and prove want of knowledge on his part of the defects of the alleged device. This rule does not arise upon the ground of contributory negligence upon the part of the servant but upon the doctrine of assumed risk.</p>

<p>1. Negligence—when question of construction of sidewalk not one of law. It is not the law of this state that the jury is entitled to pass on the case only where the court can say as a matter of law that the plan of construction with respect to a sidewalk was negligent; such question in this state is one of fact for the jury unless the evidence shows as a matter of law that there was no negligence in the plan of construction employed.</p> <p>2. Contributory negligence—when pedestrian injured upon sidewalk guilty of. It appearing that the sidewalk in question was not inherently dangerous, that it had no concealed defect or imperfection in its construction or make-up, that the condition complained of was the existence of an incline and a difference in levels, held, that the plaintiff was guilty of contributory negligence, she having testified that though her eyesight was not so good as when younger yet that she could see all right, that it was a fine sun-shiny day when she was injured, that if she had looked down at the rise in the sidewalk she would have seen it, that she was looking ahead, that she didn’t look only when she fell, that there was nothing to prevent her from seeing if she had looked, and that if she had looked and known it was there she would not have fallen.</p> <p>3. Sidewalks—care required of municipalities. When a city or village has exercised reasonable care and prudence to construct its sidewalks in a reasonably safe condition for travelers using reasonable care for their safety, it has done all the law required of it in that regard. It is not required to foresee and provide against every possible danger or accident that may occur.</p>

<p>Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. John C. Maxwell, Judge, presiding.</p>

<p>1. Pleading—what essential to affirm action of court in sustaining demurrer to declaration. If a demurrer is sustained to an entire declaration the action of the court in that regard in order to he affirmed must he approved as to each and every count composing the declaration.</p> <p>2. Pees and salaries—common law doctrine as to liability of county for witness fees. In the absence of a statutory provision to the contrary, the rule in this state is that no county is liable for witness fees in a criminal case, no matter whether the state or the defendant wins the suit.</p> <p>3. Pees and salaries—section J/7 of act construed. A foreign witness is entitled under this statute to his fees, whether sworn or not, if his evidence would have been material, and if his fees are proper and reasonable, when he has complied with the statute in the matter of making and tendering his affidavit as to such claim. Such a witness is not bound by the arbitrary and wrongful refusal of the judge to make the certificate provided for by the statute, nor is he bound by the erroneous decision of the judge with respect to such matter. If the judge refuses to rule and rules erroneously, his remedy is by action against the county and not by mandamus or appeal. If, however, the judge and the clerk make the certificates provided for by statute in favor of the allowance, the county treasurer is authorized to recognize the claim; but the certificate of the judge is not absolutely binding and conclusive as against the county.</p> <p>4. Statutory law—construction of provisos. The rule of construction as to provisos in statutes is that where they follow and restrict an enacting clause general in its scope and language, they are to be strictly construed and limited to the objects fairly within their terms. They should not be so construed as entirely to defeat the provisions of the enacting clause.</p>

<p>1. Measure of damages—in action for improperly overflowing lands. The true measure of damages in such an action is the fair cash rental value of the land.</p> <p>2. Measure of damages—when loss of probable profits may be shown. , Loss of the probable profits of a business is not usually the subject of recovery in an action for damages; yet, where the business is of long standing and such profits are capable of definite proof and are within the contemplation of the parties, past profits for a considerable period may be taken into consideration in some cases by the jury in fixing the damages, and in such cases it is up to the defendant to show that there are other reasons why the profits or damages should be less.</p> <p>3. Evidence—what competent to ascertain fair cash value of land. In an action for improperly overflowing lands, where it is proven on the trial that land in the vicinity in question is not customarily rented for cash but for one-third of the matured crop delivered, it is proper to prove the character of the crops previously raised and how much per acre or how much and what crops it would have produced in ordinary seasons under ordinary circumstances, as tending to show the productiveness of the soil and as tending to prove the value of the land. The supposed value of what might have been raised on the land in the year in question had it been cultivated, less the cost of cultivation and marketing, however, is too remote and speculative.</p> <p>4. Appeals and errors—when admission of improper evidence will not reverse. Where a case is tried before the court without a jury the admission of improper evidence will not reverse if there appears sufficient proper evidence in the record to sustain the judgment, as the law presumes the trial judge only considered proper evidence.</p> <p>5. Watercourses—liability for overflowing lands. The doctrine that the owner of land has a right to drain the same by ditches on such land, discharging the waters thereof into a natural watercourse, is limited by the further doctrine that the natural flow of waters, whether surface or other waters, cannot be diverted from their natural course so as to do injury to another by causing more waters to flow on his land than otherwise would in a state of nature.</p>

<p>Action in case. Appeal from the Circuit Court of White county; the Hon. E. E. Newlist, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Johnson county; the Hon. William N. Butler, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Massac county; the Hon. Warren W. Duncan, Judge, presiding.</p>

<p>Mines and minees—when wilful violation established as proximate cause. If the wilful violation charged and proved be the failure to maintain currents of fresh air as required by statute, and if the evidence shows that the plaintiff suffered in a manner such as would naturally result from such wilful violation, such wilful violation as the proximate cause of the injury is sufficiently established even though it appears from the evidence that the illness of the plaintiff might have resulted from other causes, there being, however, no evidence of the existence of such other causes.</p>

<p>1. Instructions—when do not leave questions of law to jury. Although it is a practice not to he commended for the court to refer the jury to the declaration for the issues, it has not been considered error to make such reference where the instruction requires proof of the averments of the declaration. To tell the jury that the plaintiff is entitled to recover if he has proven his case “as charged in the declaration” is not the equivalent of telling the jury that the plaintiff is entitled to recover if he has proved the material allegations of his declaration.</p> <p>2. Instructions—what proper in action for trespass. An instruction which tells the jury that in order to maintain an action for trespass it is only necessary for the plaintiff to prove by the greater weight of the evidence that he was in the actual and peaceable possession of the property upon which the trespass is alleged to have been committed and that the defendant unlawfully interfered with such possession, is proper, where it is limited by a direction as follows: “unless the defendant has proven that he was the owner of the same premises” at the time or times of such trespass or trespasses.</p> <p>3. Pleading—effect of plea liberum tenementum. A trespass is not admitted by a plea of liberum tenementum where a plea of not guilty is also filed.</p>

<p>1. Master and servant—duty of former to warn. The master cannot be held liable for failure to warn a servant against a danger with which the servant is acquainted or that is open and obvious; also, that the obligation of a master to warn an inexperienced servant does not arise unless the master has reason to believe he is inexperienced and is not aware of the danger.</p> <p>2. Master and servant—recklessness of servant. A servant cannot recklessly or negligently go into a place of danger and in case he receives injury, recover damages, because it appears that he was at the exact time the injury occurred in the exercise of ordinary care for his safety.</p> <p>3. Master and servant—liability to inexperienced servant. Held, under the evidence, that it was for the jury to determine whether the master was liable for an injury which resulted to an inexperienced servant to whom the accident happened by reason of his clothing being caught in a set-screw in consequence of which he was carried around a shaft.</p> <p>4. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in other instructions given.</p>

<p>1. Landlord and tenant—when abandonment not justified. If a leasing has taken place the tenant has no right without cause to abandon the premises and refuse to pay the rent stipulated.</p> <p>2. Landlord and tenant—obligation of former to re-rent. If demised premises are improperly abandoned by the defendant it is the duty of the landlord to use due diligence to re-rent the premises and thus reduce the amount of the tenant’s liability. The burden of establishing lack of due diligence by the landlord rests upon the tenant.</p> <p>3. Measure of damages—in action against tenant for rent where tenant has wrongfully abandoned. The measure of damages for the abandonment of a lease by a tenant is the rent agreed to be paid less whatever the landlord could have made out of the premises by the use of due diligence after they came into his possession.</p>

<p>Landlord and tenant—how tenancy from year to year terminated. A tenancy from year to year cannot be terminated by a notice which does not specify termination at the end of a year. A notice which undertakes to terminate such a tenancy at an improper time is insufficient and does not form a basis for a demand for immediate possession at the end of the year.</p>

<p>1. Appeals and ebboks—when purported certificate of evidence not considered. A purported certificate of evidence filed before presentation to the judge and subsequently signed after making various changes, is not such a certificate of evidence as will be considered on review.</p> <p>2. Appeals and ebbobs—how questions of evidence saved for review. In order to save for review the rulings of the trial court upon questions of evidence a proper certificate of evidence should be presented to and signed by the trial judge within the time fixed by such judge.</p> <p>3. Intebest—when allowance proper in mechanic’s lien proceeding. Interest is properly allowed upon the amount found due in a mechanic’s lien proceeding if such amount corresponds with the amount claimed in the claim for lien filed with the circuit clerk,— the filing of a correct claim for lien being treated as a statement of the account.</p>

<p>Mechanic’s lien. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.</p>

<p>1. Insurance—effect of making fraudulent proofs of loss. Where a policy contains a stipulation to the effect that it shall he void in case of any fraud or false swearing by the insured touching any matter relating to the insurance whether before or after loss, a false statement under oath knowingly and purposely made by the assured for the purpose of procuring falsely excessive valuation of the property lost, causes a forfeiture of all claims under the policy and prevents a recovery thereunder by the assured.</p> <p>2. Verdicts—when not disturbed. The Appellate Court is slow to set aside a verdict where two juries have found the same way in the cause.</p> <p>3. Instructions—what phrase need not be defined. The phrase “greater weight of the evidence” is not so technical as to require explanation or elaboration. If a party desire that it be defined he may ask such definition by instructions tendered to the court.</p> <p>4. Interest—propriety of allowance in action upon insurance policy. When the. amount of money named in an insurance policy becomes due it bears interest at the legal rate, and it is proper for the jury in fixing the amount of the verdict to allow such interest at five per cent per annum; and if the jury does this no complaint can be predicated upon the fact that the instructions given limited the jury to the allowance of five per cent interest on the amount found due.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>1. Appeals and errors—effect of decision of Supreme Court. Upon an appeal from a decree settled pursuant to the mandate of the Supreme Court, questions adjudicated by that court cannot be considered by the Appellate Court.</p> <p>2. Interest—when allowance improper. Held, under the facts of this case that the allowance of interest made by the decree appealed from was not justified either upon the ground (1) that there had been an unreasonable and vexatious delay of payment, or upon the ground (2) that the money found due had been retained by a tortious act.</p> <p>3. Interest—what not judgment hearing. Interest cannot be allowed upon a decree or upon a sum of money found due by a decree if such decree is subsequently set aside or modified by virtue of an appeal therefrom.</p>

<p>Assumpsit. Appeal from the Circuit Court of Jackson county; the Hon. W. F. Ellis, Judge, presiding.</p>

<p>1. Replevin—effect of pleas of property in defendant and others. Under such pleas the question to be determined is the right of the plaintiff to possession of th& property, and upon this issue the plaintiff holds the affirmative of the case and must sustain his right by a preponderance of the evidence or fail in the action.</p> <p>2. Chattel mortgages—when failure of mortgagee to foreclose does not affect lien. If the first mortgagee fails to take possession under his mortgage until several months after the maturity of the indebtedness suffered thereby, his rights are not affected as against the lien of a subsequent mortgagee who makes no attempt to take possession under his mortgage until after the first mortgagee had taken possession.</p> <p>3. Chattel mortgages—effect of replacing mortgagor in possession after condition "broken. Where the mortgagee of chattel property takes possession of the same after condition broken and retains the same a reasonable time he has a right thereafter to loan or hire the same property either to the mortgagor or to anyone else, and such transaction does not indicate either fraud or an abandonment of possession.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>1. Railroad»—section 84 of act providing for supplying of freight cars, etc., construed. The jurisdiction of the interstate commerce commission is applicable peculiarly to unjust discrimination and excessive demands in the matter of freight rates. Its jurisdiction does not extend to a case where there has been a failure upon the part of a carrier to furnish cars for the shipment of freight. In such case section 84 of the Railroad Act applies and the jurisdiction of the courts of this state exists to enforce a demand for damages arising by reason of the carrier’s failure to supply freight cars as required by • law, even though the freight cars in question were desired for use in connection with interstate commerce.</p> <p>2. Railroads—section 84 of act providing for supplying of freight cars, etc., construed. A mine which has become a part of and appurtenant to a regular station, of a railroad company by reason of being connected therewith by means of a switch track and course of dealing, is a station or stopping place within the meaning of section 84 of the Railroad Act.</p> <p>3. Railroads—section 84 of act providing for supplying of freight cars, etc., construed. If the merchandise to be shipped is substantially ready for shipment at the time the order for cars is placed the statute is complied with and a failure to furnish the cars in question, as provided by the statute, confers a right of action upon the shipper.</p> <p>4. Railroads—section 84 of act providing for supplying of freight cars, etc., construed. This section of the Railroad Act must be reasonably construed. It does not require that railroad companies should at all times and under all conditions have sufficient cars to take care of all demands, and it is error in an action to recover damages for the failure to furnish cars, to refuse to admit evidence which tends to show unusual demands at certain times, an equitable distribution of cars at such times, and to refuse to admit evidence which tends to show that the failure to supply was justified under all the facts and conditions existing at the time.</p>

<p>1. Schools—burden to establish incompetency of teacher. A certificate of qualification issued to a teacher by the county superintendent of schools is prima facie evidence of the fact of competency, and if such teacher is discharged for alleged incompetency the burden is upon the board of education to establish the truth of the charge.</p> <p>2. Schools—what grounds for discharge of teacher may be shown. Causes for dismissal contained in an order removing a school teacher are binding upon the directors and they are estopped from showing other or different causes.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

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

<p>Appeals and eeboes—who cannot appeal from, order granting writ of assistance. One not a party to the record, though bound by the decree therein, is not entitled to maintain an appeal from an order granting a writ of assistance.</p>

<p>Decebes—when not set aside on review. If no error of law appears and the proofs sustain the averments of the bill and the decree is just and equitable, the same will not be set aside.</p>

<p>1. Agency—what not promise other than that contained in a printed form of contract. If an agent fixes the selling price of merchandise at a less sum than that specified in a contract and gives a receipt for the amount of the reduction, the transaction is valid and binding on the principal and is not affected by printed notice contained on such contract which would suggest a lack of authority upon the part of the agent to change the form of the contract.</p> <p>2. Municipal Coubt—how objections to instructions must be made. Objections to instructions given in the Municipal Court must be specific and made immediately after the giving thereof and before the jury retires; failure so to make objections precludes the urging thereof on review.</p>

<p>1. Ordinances—validity of, 'prohibiting smoke nuisance. Held, that the power to enact smoke ordinances is expressly conferred by the legislature and that the so-called smoke ordinances of the city of Chicago are valid.</p> <p>2. Trial—what remarles of court will not reverse. Held, that the following remark of the court was not ground for reversal:</p> <p>“Mr. Reporter, let the record show that the defendant, at the close of the plaintiffs evidence, asks the court to instruct the jury to find the defendant not guilty, which the court refuses to do.”</p> <p>3. Evidence—when proof of ownership not essential. Where the question of ownership is one of inducement, proof thereof is not necessary unless ownership is expressly denied.</p> <p>4. Evidence—what competent in action for prosecution for smoke nuisance. Held, that it was competent to permit a deputy inspector to testify that he saw dense smoke issuing from the stack of the tug of the defendant.</p> <p>5. Evidence—burden of proof to establish negative. In a prosecution for the violation of a smoke ordinance proof of a negative allegation of a fact peculiarly within the knowledge of the defendant need not be made by the municipality.</p>

<p>Vendor and vendee—when acceptance not established. Held, under the evidence in this case, that it was not established that the lumber retained had been unconditionally accepted by the vendee and that a recovery could not be sustained for the purchase price, it not appearing that such lumber was up to the contract grade.</p>

<p>1. Injunctions—what essential to justify the interposition of equity to protect interests of minority stockholders seeking to enforce liability of director for neglect of duty. It is not necessary to justify the action of the court in granting a temporary injunction that it should be clearly established that the failure of the director defendant to attend the meetings of the board of directors and his consequent lack of knowledge of and participation in the affairs of the corporation created an absolute liability against him for losses which the corporation suffered; nor is it important whether such director’s liability, if any exists, is the large amount claimed or a much smaller amount. It is sufficient in the interlocutory proceeding if the record establishes a prima facie liability of some amount on the part of the director to the corporation.</p> <p>2. Injunctions—when issuance without notice improper. The issuance of a temporary injunction without notice to the defendants who were readily accessible to notice is improper in the absence of the setting up of verified facts from which the court might conclude that irreparable injury might result from giving notice of the application.</p> <p>3. Injunctions—when issuance against national hank improper. By virtue of section 5242 of the Revised Statutes of the United States, it is improper to grant a preliminary injunction against a national bank, or against its officers or directors, or against its property (where the injunction against such officers, directors or property is the equivalent of an injunction against the bank), even after it has ceased to be a going concern and the sole controversy in the case is one between the shareholders.</p> <p>4. Corporations—when equity will interfere with the ordinary powers of directors. . While it is ordinarily true that courts of equity will not interfere with the internal affairs of a corporation where the acts complained of are intra vires, yet where the corporation has ceased to be a going concern and all that remains to be done with respect to its affairs is to make distribution of its assets among the stockholders, the discretion of the directors may be interfered with in a proper case to prevent the compromise of a claim which compromise might result prejudicially to the interests of minority stockholders.</p> <p>5. Receiverships—when appointment proper with respect to affairs of national hank. If a national bank has ceased to be a going concern, its creditors having been paid in full and nothing remaining but the collection of its assets and their distribution among the stockholders, the appointment of a receiver of- a claim by such bank against a director for a neglect of duty, is proper, in order that there may properly be determined the propriety of accepting an offer of compromise of such claim and in order further that such claim may be enforced if not compromised and a distribution of the proceeds thereof, whether compromised or enforced, may be made among those entitled thereto, the rights of those entitled thereto not being altogether clear, and no other remedy appearing than that of a receivership by which all the questions involved could be properly and satisfactorily settled.</p>

<p>This case is controlled by the decision in Wallach v. Billings et al., ante, p. 317.</p>

<p>1. Negligence—when owner of amusement park liable for acts of concessionaire. If a patron of an amusement park is injured as the result of a negligent construction or maintenance of a portion of such park conducted and in the possession of a concessionaire, the owner .of the park is not exempted from liability unless it appear that the possession and control of the concessionaire is/ exclusive.</p> <p>2. Amendments and jeofails—when allowance of amendment mil not reverse. Unless it appear that the court abused its discretion, its action in allowing an amendment will not justify a reversal.</p>

<p>1. Pleading—when motion in arrest properly denied. If a declaration in an action for personal injuries alleges an unavoidable injury hut does not allege the exercise of ordinary care, the said declaration not having heen demurred to, a motion in arrest is properly denied.</p> <p>2. Contributory negligence—when question to he determined hy jury. Where the injury complained of resulted from a fall upon a sidewalk, held, that it was for the jury to determine whether the plaintiff was at the time in the exercise of ordinary care, where the evidence tended to show that the walk had been out of repair for several months prior to the accident, that the plaintiff had occasion to go over it at different times, that there was some snow upon the walk, and that the plaintiff was using the walk in the same way as many other people who had occasion to go over it.</p> <p>3. Evidence—what testimony of physician competent. Seld, that the testimony of a physician as to a condition found by him two years after the accident complained of, was competent, where such physician gave it as his opinion that the condition so found was due more or less directly to such accident.</p> <p>4. Instructions—what improper as to effect of use of sidewalk known to he. in disrepair. In an action on the case for personal injuries resulting from a fall upon a defective sidewalk, it is proper to refuse an instruction which in effect would have advised the ■ jury that it was negligence per se in the plaintiff to use the walk if she knew at the time it was in bad repair. An instruction, likewise, in such a case, ought not be given if the effect of it would merely be to tell the jury that there was a presumption that the plaintiff was guilty of contributory negligence if the plaintiff knowing the condition of such walk persisted in using it.</p>

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

<p>This case is controlled by the decision in Woman’s Temperance Building Association v. Devore, 160 Ill. App. 153.</p>

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

<p>Sales—how rescission must 6e made. A contract of sale cannot be rescinded in part. Partial rescission, however, becomes effective as a modification of the original contract if such partial rescission is accepted by the vendor.</p>

<p>Replevin. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.</p>

<p>1. Pleading—particular declaration in personal injury action construed. The particular count of the declaration referred to in this case construed to mean that the defendant without signal or notice to the plaintiff so changed- the position of and so moved the boom which struck him that it inflicted the injury, and that this, under the circumstances, was negligence.</p> <p>2. Verdicts—when not disturbed. A verdict should not be set aside as against the clear and manifest weight of the evidence unless all the material and competent evidence that under any reasonable view the jury and the trial judge could and did legally consider on the questions involved, is also before the Appellate Court.</p>

<p>1. Decebes—when in divorce sufficiently supported. A finding that the defendant “had been guilty of extreme and repeated cruelty toward the complainant since the marriage, as charged in the complainant’s bill of complaint,” together with a general finding that the equities were with the complainant, is sufficient to support a decree of divorce.</p> <p>2. Divobce—power to settle property interests. If by answer the ownership of real estate is brought into question the fact that the bill did not pray relief with respect thereto, does not preclude the court from settling such question by decree in favor of the complainant.</p>

<p>Liens—section 49 of act relating to stable keepers construed. A lien exists in favor of a stable keeper for the board etc. of a horse etc. as against a mortgagee taking possession from the owner, where the mortgagee has notice of facts sufficient to put him upon inquiry and where though the possession of the horse, etc. temporarily passed out. of the stable keeper it became restored through no act of such stable keeper.</p>

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

<p>Attachment. Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.</p>

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

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

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

<p>Contracts—effect of rescission. After a contract has been duly rescinded It cannot be revived except with the consent of the party who made the rescission.</p>

<p>Enromas of cotjbt—when not disturbed. The finding by the court in a trial at law will not necessarily be disturbed even though the testimony is not as clear and satisfactory as might be desired.</p>

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

<p>Action on the case. Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding.</p>

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

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeals and errors—effect of failure to file brief and abstract. A motion by defendant in error to dismiss will be sustained if it appears that the plaintiff in error has failed to file his brief and abstract in accordance with the rules of the court.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. A. H. Fbost, Judge, presiding.</p>

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

<p>Municipal Court—when stenographic report stricken. If the statement of facts or stenographic report is not signed and filed within the time provided in section 23 of the Municipal Court Act or within an extension of time allowed by the court within thirty days of the entry of judgment, the same will be stricken.</p>

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

<p>1. Insurance—when recovery will not he sustained where death results to insured while breaking the law. Held, that under a provision of the policy which exempted the society from liability where death resulted to the insured while breaking the law, that an assault, vicious in character, with a large bottle, was a criminal assault with intent to commit murder, and the insured being killed by a police officer assaulted, that the insured therefore lost his life while breaking the law and no recovery in favor of the beneficiary could be sustained.</p> <p>2. Criminal law—what is deadly weapon. A large bottle is a deadly weapon within the meaning of the statute making an assault with a deadly weapon a criminal offense.</p>

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

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

<p>1. Negligence—failure to protect stairway opening upon street. Held, that it was negligence to maintain a stairway which opened upon and extended into a public street which was unprotected upon one side thereof. Held, further, that the plaintiff, a pedestrian, who was injured by falling into the opening, was not, under the evidence, guilty of contributory negligence which barred a recovery.</p> <p>2. Negligence—must not take question from jury. Whether it is negligence to fail to place guards or railings about a stairway opening into a public street, is a question of fact to be determined by the jury, and the court should not by its instructions take such question away from the jury.</p> <p>3. Negligence—when owner of abutting property jointly liable with municipality. If a stairway extending into and opening upon a public street is a nuisance and an injury results to a pedestrian by reason thereof, the owner of the property to which such stairway is appurtenant is jointly liable with the municipality having control of the street.</p> <p>4. Instructions—must not assume facts not in evidence. An instruction is properly refused which assumes the existence of facts not established by the evidence.</p> <p>5. Instructions—when should define ordinary care. An instruction which concludes with a direction to the jury to find for the defendant if certain facts are believed, should he full and complete, and the issue of ordinary care being in the case a definition of what would be ordinary care under the circumstances shown, should he contained in the instruction.</p> <p>6. Instructions—when contains intimation that exercise of more than ordinary care was required. An instruction asked by the defendant in a personal injury suit which gives undue prominence to physical disabilities and infirmities of the plaintiff, is properly refused in that it intimates that the exercise of more than ordinary care is required.</p>

<p>Consolidated for Hearing.</p> <p>1. Chancery—when has jurisdiction to entertain appeal to determine right to surplus arising from foreclosure sales. If a mortgagee is secured with respect to its indebtedness by several mortgages, one of which is collateral in character, and conducts foreclosure proceedings and sales under such mortgages, receiving more than sufficient to satisfy all claims, chancery has jurisdiction to entertain a proceeding to ascertain the surplus and to distribute the same among the parties entitled thereto.</p> <p>2. Res judicata—when decree of foreclosure does not bar bill to determine right to surplus arising from foreclosure sales. If several mortgages are foreclosed by a mortgagee to obtain satisfaction of his indebtedness the decrees entered therein are not res judicata of the right of the mortgagor, who had transferred his equity prior to the institution of such proceedings and who was made a party thereto, subsequently to file a bill to determine his right to a surplus arising from the sales made upon the ground that one of the mortgages foreclosed was merely collateral security, inasmuch as in the foreclosure proceedings no issue was made as to such mortgage being collateral in character.</p> <p>3. Laches—when does not bar bill to determine right to surplus arising from foreclosure sales. A delay of a year will not bar such a proceeding where there is no evidence justifying the conclusion that it would be inequitable to allow the complainant'to proceed.</p> <p>4. Mortgages—obligations of grantee taking subjqct to mortgage. Whenever the mortgage debt forms a part of the consideration of the purchase price, although the purchaser has not entered into covenant or agreement to pay it, he is bound to the extent of the property to indemnify the grantor. The law implies a promise to that effect from the nature of the transaction, but this obligation to indemnify does not, in the absence of contract, extend to attorney’s fees and expenses incurred in prosecuting and defending litigation.</p>

<p>This case is controlled by the decision in Sheppard v. Berkshire Life Insurance Company, ante, p. 467.</p>

<p>Negligence—when ordinances incompetent. ■ Ordinances providing for the construction and maintenance of an elevator and shaft in a particular manner are not competent unless it he shown that the violation thereof proximately resulted in the injury complained of.</p>

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

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

<p>1. Pleading—when declaration will not support recovery. If the declaration does not contain averments of negligence to support the proof of negligence made, no recovery can he sustained.</p> <p>2. Master and servant—when latter cannot recover for injury occurring from obedience to order of foreman. An experienced driver who had worked about horses for many years and was as fully cognizant of the danger attendant upon an attempt to stop a runaway team as his foreman, cannot recover for an injury resulting from this attempt, pursuant to an order of such foreman, to stop a runaway team.</p> <p>3. Master and servant—when doctrine of assumed rislc applies. No recovery may be had for a risk assumed by the servant in attempting to perform what he regards as his duty upon the master’s order, where he has not been misled by such order of the master.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy; Judge, presiding. Certiorari denied hy Supreme Court (making opinion final).

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

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

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding.

<p>1. Blind—act of 1903 providing for relief of, construed. The' power to relieve the blind in the manner prescribed by the act in question is purely statutory; the provisions of such act are not ministerial and it is within the discretion of the board of supervisors to grant or deny the relief prescribed.</p> <p>2. Mandamus—when writ does not issue. A writ of mandamus does not issue to compel the exercise of a discretion; a clear right to relief must be shown.</p>

<p>Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>1. Mines and minees—when wilful violation established. The operator is liable to a miner injured as the result of an explosion resulting from a failure to observe the provisions of the Mines and Miners Act. The fact that precautionary marks or signals were placed at the entrance to the room in which the explosion occurred does not relieve such operator from liability if such marks or signals were not intended as a notice to the miner to keep out.</p> <p>2. Mines and minees—what not defense to action charging wilful violation. Contributory negligence consisting in a failure to observe signals of precaution is not a defense to an action under the 'Mines and Miners Act where a wilful violation thereof has been established.</p> <p>3. Evidence—impropriety of questions calling for conclusions. It is proper to sustain objections to questions the answers to which would have usurped the functions of the jury.</p> <p>4. Evidence—when opinions as to mental capacity incompetent. It is improper to permit lay witnesses to testify to the mental capacity of a party the validity of whose execution of a release is in question without proper foundation for their opinions being laid.</p> <p>5. Appeals and ebbobs—when erroneous admission of evidence will not reverse. Erroneous admission of evidence will not reverse where the court after the admission of the improper evidence has emphatically directed and instructed the jury to disregard such evidence.</p> <p>6. Appeals and ebbobs—when special interrogatory cannot he complained of. A special interrogatory submitted by the court of its own motion cannot be urged as ground for reversal because of the omission of an alleged essential element if the complaining party in one of its instructions to the jury on the same issue has likewise omitted such element.</p> <p>7. Instbuctions—effect of me of “negligently” instead of “wilfully." In an action under the Mines and Miners Act, held, that the use of the word “negligently” instead of the word “wilfully” did not constitute ground for reversal.</p> <p>8. Instbuctions—when inaccurate upon question of exercise of ordinary care, will not reverse. In an action under the Mines and Miners Act where wilful violation of such act was established, held, that an instruction on the subject of ordinary care which improperly limited the exercise of such care to the precise time when the plaintiff was injured, did not constitute ground for reversal.</p>

<p>1. Pleading—when demurrer to plea properly sustained. A plea relying upon the provisions of an insurance policy is bad where it merely avers conclusions as to the tenor and effect of the provisions in question.</p> <p>2. Tbial—when overruling of challenge for cause not prejudicial. In the absence of a showing by the complaining party that it was required to take an objectionable juror after exhausting its peremptory challenges, the action of the court in overruling prior challenges for cause will not be considered.</p> <p>3. Appeals and erbobs—when estoppel to complain of instruction arises. An instruction cannot be complained of if the subject-matter thereof has been recognized as correct by an instruction given at the instance of the complaining party.</p> <p>4. Instbuctions—effect of inconsistency. A party cannot complain of the refusal of the court to give an instruction which is inconsistent with another instruction given at its instance.</p>

<p>1. Instructions—when improper omission cured by special finding. If an instruction improperly eliminates an issue from the cause the error is harmless if such issue has by special finding been found by the jury against the complaining party.</p> <p>2. Damages—what proper in action for personal injuries. In an action for personal injuries under the Mines and Miners Act, held, that it was not error to authorize the jury in estimating damages to consider the suffering of the plaintiff in body and mind if any resulted from such injury.</p> <p>3. Verdicts—effect as to size where several juries have con-\ curved. The Appellate Court will he slow to interfere with a verdiet after several verdicts have been rendered and approved by the trial judge of substantially the same size.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>Assumpsit. Appeal from the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding.</p>

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

Action in case for death caused by alleged wrongful aot. Appeal from the Circuit Court of Sangamon county; the Hon. X$mes A. Creighton, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>Assumpsit. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>1. Drainage—section J¡3 of Farm Drainage Act construed. The Farm Drainage Act is independent of and should be construed without reference to the Levee Act, and section 43 of the Farm Drainage Act expressly authorizes the formation of one drainage district within the boundaries of another existing drainage district.</p> <p>2. Drainage—jurisdiction of corporation exclusive. There cannot be, at the same time, within the same territory, two distinct municipal corporations exercising the same power, jurisdiction and privileges.</p> <p>3. Drainage—when contract void. A contract for work made by a drainage district is void which provides for the doing of work upon a system of drainage over which it has no jurisdiction and those doing work under a contract with a drainage district are bound at their peril to take notice of the invalidity of such contract.</p>

<p>Dram-shops—effect of joint action for loss of support upon measure of damages. The fact that several minor children of the deceased join together in an action for loss of support does not limit the extent of the recovery to such losses as accrue from the time of the death of the deceased until the oldest of the children reaches majority. It is for the jury to determine from the evidence the full amount to which each and all of such children are damaged by reason of tbe death of their father and to return a verdict for the gross amount. -■</p>

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

<p>1. Trial—when improper remarks ground for reversal. Improper remarks in the presence of the jury which if heeded were calculated to arouse passion and prejudice even though rebuked, are ground for reversal.</p> <p>2. Instructions—when upon question of negligence erroneous. An instruction .in a personal injury case which assumes the negligence of the defendant, is erroneous.</p> <p>3. Instructions—when as to duty of keeping tracks in repair erroneous. It is error to tell.the jury that insofar as the keeping of the track in question in repair was left to the servants of the defendant it was the duty of the defendant to exercise reasonable supervision to see that the work entrusted to them was properly done; the duty of the defendant is to use reasonable care to see that its tracks are kept in a reasonably safe condition.</p> <p>4. Instructions—when as to exercise of ordinary care erroneous. It is error to instruct the jury in effect that unless an accident occurred solely through the plaintiff’s negligence he is entitled to recover.</p>

<p>• Insurance—when continued vacancy constitutes defense. If premises insured remain vacant and unoccupied contrary to the terms of the policy sued on and no waiver of the provision in question is shown, a recovery will not he sustained.</p>

<p>1. Executions—what not subject to. A promissory note cannot be levied upon and sold under execution.</p> <p>2. Attachment and garnishment—amendment to section 5 of act relative to attachments before justices, construed. The amendment to section 5 of the act relative to attachments before justices of the peace does not permit evidences of indebtedness, such as promissory notes, to be subject to seizure upon writs of execution.</p>

<p>Divorce. Error to the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge presiding.</p>

<p>Action in debt. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>1. Roads and bridges—-what essential to personal liability of highway commissioners. Highway commissioners can only be held personally liable for damages to persons or property with respect to the performance of their official duties when under the guise or pretense of performing a duty they perform some ministerial duty in a wrongful and negligent manner, or where they corruptly, wilfully or negligently fail to perform some mandatory duty.</p> <p>2. Personae injuries—when declaration states good cause of action against highway commissioners. Meld, that the declaration in this case set forth a good cause of action against the defendant highway commissioners, it averring among other things that the defendants, with full knowledge of the dangerous and unsafe condition of the bridge in question for a sufficient length of time to have enabled them to have repaired and made the same reasonably safe for use prior to the injury to the plaintiff, with sufficient funds at all times at their disposal and available for such purpose, and with knowledge that their failure to repair said bridge would in all probability result in injury to some person using the same, permitted said bridge to be and remain out of repair and unsafe for use by the traveling public.</p> <p>3. Pleading—when averment of due care sufficient. An averment of the exercise of ordinary care upon the part of the plaintiff is sufficient to authorize a submission of that issue to the jury.</p>

<p>1. Trial—order of introduction of proof. Unless an abuse of discretion is shown the action of the trial court in permitting the plaintiff to introduce further testimony after he had closed his case, will not reverse.</p> <p>2. Appeals and errors—when assignment of error not considered. An objection urged on review will not be considered in the absence of the abstract showing .that an exception was preserved.</p>

<p>Forcible entry and detainer—when lies to recover possession wrongfully taken. No one, not even the owner, has the right forcibly to take possession of premises from one in the occupation thereof, no matter how justly he may be entitled to it, and the person so dispossessed against his will may recover possession even though his original possession may have been wrongful.</p>

<p>Mortgages—what credited against indebtedness. A fund designed to be applied towards the reduction of a mortgage debt will not in equity be allowed to be diverted to the injury of a party in interest.</p>

<p>1. Instructions—when upon preponderance of evidence erroneous. It is error to instruct the jury that the preponderance of evidence is not alone determined hy the number of witnesses testifying to particular facts or state of facts.</p> <p>2. Instructions—when upon contributory negligence erroneous. It is error to tell the jury that if they believe from the evidence that the plaintiff might in the exercise of ordinary care and caution have seen the danger and avoided it and that his omission to do so directly contributed to the injury he was guilty of such negligence as to prevent a recovery, in that the word “would” should have been used instead of “might.”</p> <p>3. Instructions—when upon contributory negligence improper. An instruction is properly refused which invades the province of the jury by stating in effect that certain facts constitute contributory negligence and preclude a recovery.</p> <p>4. Instructions—upon liability in action for personal injuries, properly refused. An instruction in an action for personal injuries is properly refused which assumes contributory negligence of the plaintiff and ignores in some respects the obligations of the defendant.</p> <p>5. Instructions—when as to credibility of witness erroneous. An instruction upon this subject is improper which omits the element of materiality of the facts as to which the witness has knowingly testified untruthfully.</p> <p>6. Negligence—doctrine of comparative. The doctrine of comparative negligence no longer exists in Illinois.</p>

<p>Action in debt. Error to the Circuit Court of Montgomery county; the Hon. J. C. McBride, Judge, presiding.</p>

<p>Trespass. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.</p>

<p>1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence where not clearly and manifestly against its weight.</p> <p>2. Verdicts—when not excessive. A verdict for $1,300 reduced by remittitur to $800 will not be set aside as excessive notwithstanding it appears that the plaintiff’s injury was slight, that his recovery was speedy and complete and that his loss of earnings was small.</p>

<p>1. Service of process—when motion to quash properly denied. If an inspection of the record discloses no defect in the writ, its service or return, a motion to quash is properly denied. The proper method of attacking a return founded upon extrinsic matter, is by plea to the jurisdiction.</p> <p>2. Defaults—when denial of motion to set aside, not error. In the absence of abuse of discretion the action of the chancellor in refusing to set aside a default will not be disturbed. Such a- motion should be supported by an affidavit of merits which affidavit should set up facts showing a good defense.</p>

Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding.!

<p>Bill in chancery. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Soholtteld, Judge, presiding.</p>

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

<p>1. Evidence—what testimony of medical expert incompetent. It is improper to permit medical experts (not attending physicans) to express opinions to the jury based upon subjective conditions and then to fortify such opinions by stating to the jury acts of the injured party which could apparently have been voluntary and under the control of the injured party, and which might have rested upon another basis than the truthfulness of the injured party. It is likewise improper to permit such witnesses to express their speculative opinions as to what might possibly have been the cause of the injury, and that such injuries- would probably shorten life, etc. .</p> <p>2. Evidence—as to what medical expert competent. A physician who has not treated an injured person but has made an examination to enable him to testify on the trial as to his condition, must base his opinion on objective and not subjective conditions. He cannot relate nor take into consideration the self-serving statements of the injured person made to him not with reference to treatment but with reference to his trial.</p> <p>3. Damages—what does not justify in action for personal injuries. A mere disability or even a reasonable probability that future pain or suffering may be caused by an injury and that some disability may result therefrom, is not sufficient to warrant an assessment of damages. To justify recovery of future damages the law requires proof of a reasonable certainty that they will be endured in the future.</p>

<p>Assumpsit. Appeal from the Circuit Court of Christian county;" the Hon. J. C. McBride, Judge, presiding.</p>

<p>Petition for conservator-. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Schuyler county; the Hon. Harry Hiqbee, Judge, presiding.</p>

<p>Assumpsit—when lies. If a note be sold with the representation that it is a valid, subsisting obligation when in fact it is not such, the purchaser thereof may recover the amount paid from the seller in an action of assumpsit.</p>