Volume 162 — Illinois Appellate Court Reports

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

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1910.

<p>Appeal from the Circuit Court of De Witt county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>Appeals and errors—what order final and appealable. An order improperly striking from the flies the report and account of an executor denying to such executor any right to report or account, is final and appealable.</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>Tort. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>Quo warranto. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>1. Fraternal benefit societies—status of subordinate lodge. A subordinate lodge or council of a fraternal benefit society is the agent of the supreme lodge or council and such subordinate lodge or council may waive a forfeiture of benefit certificates or the suspension of members thereof for a failure to pay assessments promptly.</p> <p>2. Fraternal benefit societies—when forfeiture waived. The uniform conduct of a subordinate lodge in accepting payment of assessments after the same became due without requiring the insured to present certificates of good health, operates as a general waiver by the society of a compliance by the insured with the provisions of the by-laws with reference to reinstatement.</p> <p>3. Fraternal benefit societies—when employment by insured in prohibited occupation no defense. If the society at the time it issued its certificate knew that the insured was engaged in an extrahazardous and prohibited occupation, it cannot at his death allege such fact as a defense to an action by the beneficiary under the certificate.</p>

<p>Action in case. Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>Action in case for personal injuries, etc. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. Granville W. Cochran, Judge, presiding. Heard in this court at the May term, 1910.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the November term, 1910.

<p>Trover. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Coohran, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>Slander and libel-—what words not actionable per se. Held, that to say of the cashier of a hank that he was “an Irish' bull head” etc., was not to utter words slanderous per se, and that in the absence of an allegation of special damage the action of slander could not be maintained.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Montgomery county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the November term, 1910.

<p>1. Descent—section 11 of act construed. This section was enacted to prevent lapses where a devisee or legatee, being a child or grandchild of the testator, dies before the testator, leaving issue, and no provision is made in the will for such contingency. The purpose of the enactment of said section is that the child or grandchild taking the legacy or devise of his or her parent or grandparent takes the same under and by virtue of the will of the testator or testratrix and not by descent from his or her parent or grandparent, and, therefore, the status of the child or grandchild taking under and by virtue of the provisions of said section is as though such child or grandchild had been specifically designated in the will as a legatee or devisee.</p> <p>2. Statute of frauds—section 12 construed. This section is one available to the creditor of the ancestor or devisor leaving lands, tenements or hereditaments or rents or profits out of the same, devised or descending to any devisee or heir and out of which such creditor is entitled to recover the debt due from such ancestor or devisor as against the rights of such heir or devisee.</p>

<p>Interpleader. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the November term, 1910.</p>

Action in case for personal injuries. Error to the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the November term, 1910.

<p>Bill for injunction. Appeal from the Circuit Court of Edgar county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.</p> <p>2. Evidence—what not part of res gestee. Declarations of an employee not made while in the performance of duty, though in the presence of the principal, are not part of the res gestae and are not binding as admissions against such principal.</p> <p>3. Appeals and errors—when ineompeteney of evidence cannot be urged. Notwithstanding evidence may be incompetent its incompetency cannot be relied upon as ground for reversal if objection thereto was not made predicated upon the proper ground of incompetency and if the same was so far as the real ground of incompetency was concerned treated as properly received.</p> <p>4. Instructions—when failure to refer to proximate cause of injury not erroneous. An instruction given at the instance of the plaintiff in an action for personal injuries which does not purport to direct a verdict is not erroneous in not containing reference to the doctrine of proximate cause.</p> <p>5. Instructions—when refusal of court will not reverse. It is not error to refuse a correct instruction if its substance is substantially contained in other instructions given.</p>

<p>Judicial notice—of what not taken. Judicial notice is not taken of the municipal location of streets.</p>

<p>1. Contempt—when objection to manner of proceeding cannot be complained of. Complaint cannot be made of the manner of determining the issues in a proceeding to commit for contempt for failure to pay alimony where the respondent made no objection to the course of procedure adopted and permitted the proceeding to be determined upon the affidavits of the respective parties.</p> <p>2. Contempt—burden to purge for failure to pay alimony. Failure to pay alimony as ordered is prima facie evidence of contempt and the burden is upon the respondent to show a valid reason for such failure.</p> <p>3. Contempt—when finding in proceeding for, not disturbed as against the evidence. The finding of the chancellor that the respondent was guilty of contempt in failing to pay alimony as ordered will not be set aside as against the evidence unless clearly and palpably against its weight.</p> <p>4. Contempt—when order of commitment proper. An order committing for contempt for failure to pay alimony properly fixes no definite time limit for imprisonment. The order of commitment is not designed as punishment but as a means of enforcing the decree of the court.</p> <p>5. Contempt—when refusal to allow solicitor’s fees and expense money in proceeding for, for failure to pay alimony, proper. In order properly to support a claim for solicitor’s fees and suit money in a contempt proceeding to compel the payment of alimony, evidence should be adduced.</p>

<p>1. Instructions—must not give undue prominence to particular evidence. Instructions are properly refused which single out and give prominence to particular items of evidence.</p> <p>2. Instructions—when refusal of correct will not reverse. It is not error to refuse a correct instruction the substance of which is substantially contained in other instructions given.</p> <p>3. Instructions—when erroneous will not reverse. An erroneous instruction will not reverse where the Appellate Court is satisfied upon a consideration of the entire record that the jury were not misled'thereby-</p>

<p>Appeal from the City Court of Mattoon; the Hon. George D. Wilson, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>Evidence—when writing competent as admission against interest. In an action to compel an administrator to account for certain moneys alleged to have been collected for his intestate, a written declaration of such intestate as to his assets is competent as against privies in blood. The fact that the statement in question was made according to the best recollection of the intestate did not affect its competency but only the weight to be given it.</p>

<p>1. Evidence—when testimony incompetent after use of memorandum. If a witness’ memory is not refreshed by the use of a memorandum so that he then has a present recollection and if a witness has no recollection independent of the memorandum, it is improper over objection to permit him to testify with reference to the contents of such memorandum.</p> <p>2. Bonds—when lack of identity in sureties does not preclude joinder of several bonds in single action. Suit may be brought upon several separate and distinct bonds in the same action notwithstanding tha sureties thereon are not identical if the suit is instituted against the principal in all such bonds alone.</p> <p>3. Drainage—liability of treasurer for failure to aeeownt. Where a county treasurer is ex officio treasurer of a drainage district his liability to account is to the county and upon his collector’s bond or bonds. If, however, the moneys in question are received by him as treasurer by appointment his liability is to the district rather than to the county.</p> <p>4. Fees and salaries—section 51 construed. The duty imposed upon a county treasurer by section 51 of the Fees and Salaries Act to make semi-annual reports of all the fees and emoluments of his office of every name and character is not dependent upon the adoption by the county board of a resolution fixing the compensation of such treasurer but his duty to make such reports is imperative notwithstanding a failure to fix his compensation.</p>

<p>Divorce. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding. Heard in this court at the May term, 1910.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the May term, 1910.

<p>1. Res judicata—effect of opinion of Appellate Court. The opinion of the Appellate Court rendered upon one hearing of a cause is binding upon a subsequent hearing and likewise upon tlio trial court.</p> <p>2. Appellate courts—section 87 of Practice Aet construed. The question presented to the trial court upon a motion to direct a verdict is one of law and not of fact; in deciding that question the trial court is not empowered to weigh the evidence and thereby assume to find any fact, but its function is limited to determining whether or not there is any competent evidence in the record fairly tending to prove the fact in issue. The power vested in the Appellate Court by virtue of section 87 of the Practice Act is, however, much broader, and includes the power upon appeal from a judgment of the trial court, to reverse such judgment without remanding the cause upon the ground that the weight of the evidence does not authorize the verdict. Alfred v. C. C. C. & St. L. Ry. Co., 123 Ill. App. 477, followed.</p>

<p>Error to the Circuit Court of Montgomery county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the November term, 1910.</p>

Action in case for personal injuries, etc. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1910.

<p>Insolvent debtors act—who cannot avail of. If a general verdict be rendered under several counts of a declaration, of some of which malice is the gist and of others of which malice is not the gist, and if the prima facie ease as made by the creditor that the general verdict rendered by the jury was predicated upon the count or counts of which malice was the gist, the burden is upon the debtor to show that such verdict was rendered upon the count or counts of which malice was not the gist, and in the absence of any evidence being adduced by the debtor that such was the case he cannot avail of the provisions of the Insolvent Debtors Act.</p>

<p>Verdicts—when not excessive. Held, in an action for death caused by wrongful act, that a verdict of $3800 was not excessive and was not induced by improper consideration of services which had been rendered by the intestate to her next of lcin.</p>

Assumpsit. Appeal from the Circuit Court of Pike county; the Hon Harry Higbee, Judge, presiding. Heard in this court at the May term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Foreclosure. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>Contempt—when evidence does not sustain judgment in. If defendants are restrained from selling liquor in a particular building, the absence of proof showing that sales of liquor were made in such building is fatal to a judgment holding such defendants in contempt.</p>

<p>Appeals from the City Court of Mattoon; the Hon. George D. Wilson, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>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>Bill for injunction. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1910.</p>

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

<p>Fences—act of 1874 construed. The act of 1889 in regard to division fences was an amendment of the act of 1874 and became a part of the act of 1874 the same as though originally incorporated therein, and the notice provision of the act of 1874 became applicable to the mandatory portion engrafted by the 1889 act.</p>

<p>1. Conveyances—presumption of error in description. Where a party conveys land which he does not own but does own land in the same section, the presumption is that he intended to convey the land he did own.</p> <p>2. Mortgages—when deed not construed as constructive. Held, that the evidence in this case was not sufficient to establish that a deed absolute on its face was designed as a mortgage.</p>

<p>1. Brokers and factors—when real estate agent entitled to commissions. The fact that the broker is engaged to carry on negotiations for exchange with a particular party designated by the principal, precludes such principal in an action for commissions from asserting that the party negotiated with was not able to carry out the trade.</p> <p>2. Evidence—when admission of secondary, will not reverse. The admission of secondary evidence will not reverse where it is apparent that no harm was done.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Coles county; the Hon E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1910.</p>

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

<p>Error to the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>1. Common carriers—what evidence essential to recover for failure to deliver perishable merchandise in as good condition as when received. In such an action predicated upon delay in transporting, there must be proof of condition at the time both of receipt and of delivery.</p> <p>2. Common carriers—presumption as to condition of merchandise at the time of delivery. In the absence of proof of condition of merchandise at the time of delivery to the carrier the presumption is that when it was delivered at destination such merchandise was in the same condition as when received by the carrier.</p> <p>3. Common carriers—how proof of delay in transporting must be established. Delay in transporting merchandise must be established by testimony showing that the time consumed in carriage was in excess of that which should have been taken under the conditions which prevailed upon the road of the carrier to whom the merchandise was entrusted. Evidence as to the time required to transport merchandise between the same points-upon a different road is incompetent. .</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. A. H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.

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

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.

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

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

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

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

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

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

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

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

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

Action in case for death caused by alleged wrongful act. 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>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. James W. Craig, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>1. Appeals and errors—when rulings upon evidence not subject to review. In the absence of objection made in the trial court rulings upon evidence are not subject to review.</p> <p>2. Evidence—when letters incompetent. Letters written by the party offering them, not replied to, which are mere self-serving declarations, are not competent.</p> <p>3. Evidence—when reliance upon false representations constitutes defense. The owner of property dealing with a real estate agent in the matter of exchange of properties may rely upon representations of such agent as to the title of the property to be acquired and may urge reliance upon such representations, if shown to be false, as a defense to an action for commissions without showing that he exercised ordinary prudence.</p>

Action in case for personal injuries. 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. Certiorari denied by Supremo Court (mailing opinion final).

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. T. G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Affirmed. Certiorari denied by Supreme Court (making opinion final).

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. A. M. Rose, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>Replevin—when peremptory instruction should he given for defendant. In an action for replevin in which counts in trover and detinue arc filed a peremptory instruction should be given for the defendant who (1) did not illegally take the property in question, (2) who never liad possession thereof and (3) who never detained the same.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate 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 count; the Hon. Marcus Kavanagh, Judge, presid-Court of Cook county; the Hon. Marcus Kavnagh, Judge, presid-</p>

<p>1. Fraud—jurisdiction of chancery. Chancery will take jurisdiction to set aside a trust agreement the execution of which was induced by fraudulent representations.</p> <p>2. Negotiable instruments—when extension of time of payment ineffective. The extension of the time of payment of a promissory note not based upon a valid consideration and induced by fraudulent representations, is invalid and will be disregarded in a court of equity.</p>

<p>1. Writ of error—who cannot maintain. A writ of error cannot be maintained by persons who were not parties to the judgment and who are not directly affected thereby.</p> <p>2. Dimissals—rights of plaintiffs. Where no counter relief has been asked by defendants a plaintiff may dismiss his suit either in toto or as to certain defendants when he sees fit regardless of any undisposed of pleas or demurrers that may have been filed. .</p> <p>3. Mandamus—section 7 of Act construed. By virtue of this section of the Mandamus Act the court is not bound to join any party who may appear and claim to have an interest; the right conferred by statute is discretionary.</p> <p>4. Res judicata—when judgment in mandamus not. A judgment in mandamus rendered in a proceeding which related to the civil service, is not res judicata as to the rights of persons not parties to the proceeding.</p>

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

<p>Set-off—how must he established. Before a party can be allowed a claim of set-off, he must show with some reasonable degree of certainty what the claim amounts to and the items thereof.</p>

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

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Albert M. Rose, 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. Marcus Kavanagh, Judge presiding, Heard in the Branch Appellate Court at the March term, 1909.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon Willard M. McEwen, Judge, presiding. Heard in this court at the March term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>Appeal from the City Court of Chicago Heights; the Hon. Homer Abbott, 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 G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Accord and satisfaction—when not established. Even if a check be tendered in full its acceptance will not constitute an accord and satisfaction in the absence of an existing dispute as to the amount due.</p> <p>2. Accord and satisfaction—effect of waiver. Even though an accord and satisfaction has taken place the same may be waived by subsequent conduct.</p> <p>3. Sales—remedies of vendor upon refusal of vendee to accept. Where the vendee of goods sold at a specified price refuses to take and pay for them, the vendor has three courses open to him. He may store the goods, notify the vendee that he has done so and then recover the full contract price; second, he may keep the goods and recover the excess of the contract price over and above the market price of the goods at the time and place of the delivery, provided the market price is lower than the contract price; or third, he may, upon notice to the vendee, proceed to sell the goods to the best advantage, and recover the loss provided they fail to bring the contract price.</p> <p>4. Sales—what not essential to recovery by vendor upon refusal of vendee to accept. In order to recover in such an action it is not necessary that the vendor -actually have on hand the merchandise ready for delivery.</p> <p>5. Instructions—upon what complaint cannot be predicated. An instruction will not reverse though erroneous if more favorable to the complaining party than the law required.</p>

<p>1. Partition—when taxation of complainant’s solicitors fees property denied. If a petition filed in partition did not correctly set forth the interests of the parties the solicitor’s fees of the complainant should not be taxed as costs.</p> <p>2. Appeals and error—when record does not present alleged error. Meld, that the record in this case did not show any order of court refusing to tax solicitor’s fees as costs in the partition proceeding and that therefore the action of the court in that regard was not reviewable.</p> <p>3. Appeals and errors—when assignment of error insufficient. Assignments of error which are too general in averment will not avail.</p>

<p>1. Husband and WIFE—when latter incompetent as witness. After marriage a wife is incompetent to testify for her husband even as to a transaction which occurred before marriage.</p> <p>2. Municipal court—when judgment not reversed. If substantial justice has been done a judgment of the Municipal Court will not be reversed even though an incompetent witness has been permitted to testify.</p>

<p>1. Eminent domain—-extent of municipal liability. If an abutting property owner is injured by reason of changes made in a street by a railroad company under authority of the city, the city is liable.</p> <p>2. Eminent Domain—when assessment of damages mil not be reversed. If a judgment rendered in an action for injury to real property appears to do substantial justice and if it seems obvious that no decision more favorable would result from another trial, a reversal because of errors in procedure will .not be awarded.</p> <p>3. Pleading—what not variance. Held, that there was no material variance between the allegations and the proof as to an ordinance authorizing track elevation.</p> <p>4. Evidence—when testimony of expert on values properly not stricken. Even though it appear from cross-examination that an expert on values has included in his estimates an improper element, it is proper not to strike out his entire testimony.</p>

<p>Appeal from 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>

Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Appeal dismissed. Certiorari denied by Supreme Court (making opinion final),

<p>1. Municipal court—what not essential to review. Exceptions to rulings made against the objections of a party are not essential to a review of such rulings.</p> <p>2. Municipal court—section 33 of act construed. The fact that an officer of the adverse party corporation has been cross-examined does not preclude the right again to call and examine him under section 33 of the Municipal Court Act.</p> <p>3. Foreign corporations—what materal to determine issue of “doing business.” Whether a corporation has bought materials and employed labor in Illinois in connection with its business, are facts material to the determination of the issue as to whether its business is intrastate or interstate.</p>

<p>Municipal Court—when judgment set aside with final judgment. If the evidence clearly establishes no liability upon the part of the defendant the Appellate Court will reverse the judgment rendered and enter a final judgment of nil capiat.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>1. Husband and wipe—when former competent as witness. A husband is competent as a witness for his wife if the controversy concerns her separate property.</p> <p>2. Evidence—when incompetency of witness cannot he relied upon. In order to preserve for review the question of the competency of a witness an objection to such competency must have been made in the trial court.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Contracts—how to he construed. Ho strained construction should be placed upon a contract; its natural construction will prevail.</p>

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

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Prank Crowe, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John H. Gillan, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>1. Assumpsit—when implied does not arise. Held, under the evidence in this ease, that an attorney employed by a railroad company upon a regular salary is not entitled to extra compensation for extraordinary services performed if they come within the line of his prescribed duties.</p> <p>2. Evidence—when reference in letter cannot he explained. A reference in a letter which has been written by a witness cannot be explained by him where there is no ambiguity as to what was referred to.</p>

<p>Res judicata—what judgment is. In an action by a father to recover for medical expenses, etc., incurred by him in seeking to effect a cure of his infant child -who has sustained personal injuries, a judgment rendered in an action by such child against the same defendant is res judicata so far as there is identity of issue.</p>

<p>Insurance—effect of false representations. Representations made in obtaining a policy, if false and known to be false when made, constitute a good defense to an action upon the policy where such representations are material to the risk.</p>

<p>Municipal Court—when judgment not disturbed. The Appellate Court will not reverse a judgment of the Municipal Court if it is satisfied that substantial justice is done thereby.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Bill in chancery. Error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. A. J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Constitutional law—statute as to wife abandonment. Eeld, that this statute is not unconstitutional.</p> <p>2. Municipal Court—jurisdiction of prosecution for wife abandonment. Eeld, under the authority of Glowacki v. People, 236 Ill. 612, that the Municipal Court of Chicago has jurisdiction of prosecutions for wife abandonment.</p> <p>3. Wipe abandonment—what essential to conviction. In order to sustain a conviction of wife abandonment under the statute, proof must he made that the wife or minor child or children would be in destitute or necessitous circumstances.</p>

<p>1. Dram-shops—what intoxicating liquor. Beer is an intoxicating liquor and a conviction under an ordinance prohibiting the sale of intoxicating liquors is sustained by proof of a sale of beer.</p> <p>2. Municipal Court—when judgment not reversed. If no substantial error appears a judgment of the Municipal Court will not be reversed.</p>

<p>Contracts—what not enforced. An alleged contract which is indefinite and lacking in mutuality, will not be enforced.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

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

<p>Evidence—effect of written confession. A written confession signed by the accused if discredited in part loses much of its probative force.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Common carriers—who liable as. An alleged forwarding agent who receives goods for transit, issues bills of lading, makes contracts in its own name with a railroad company for carriage, is, as to a person with whom it contracts for the deliveiy of goods, g¡ common carrier g,nd liable as such,</p>

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

<p>Master and servant—what not assumed risk. If an inexperienced servant is injured in obeying an order given him by one in authority over him the doctrine of assumed risk will not bar a recovery unless such servant was contributorily negligent.</p>

<p>Error to the Municipal Court of Chicago; the Hon Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arthur W. Beseem:, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Municipal Court—when insufficiency of statement of claim will not reverse. In the absence of a motion for a more specific statement of claim having been made and in the absence likewise of any objection to testimony based upon the insufficiency of such statement, a reversal will not be awarded.</p> <p>2. Common carriers—liability for freight marked to particular destination. A carrier by accepting freight marked to a particular destination impliedly agrees to deliver it at that place whether on its own line or beyond, and is prima facie bound to do so.</p> <p>3. Common carriers—when restriction upon liability not enforced. Where a contract limiting the liability of a carrier is contained in a bill of lading constituting both a receipt and the contract, the burden is upon the carrier to show that the shipper assented to the terms and conditions of the contract.</p>

<p>1. Service of process—when upon corporation sufficient. A return as to the president of a corporation “not found” justifies service upon an agent.</p> <p>2. Abatement—when appearance not special. Held, that even though a special appearance may be entered, such appearance becomes general by the interposition of a motion predicated upon the merits to set aside a default.</p> <p>3. Municipal Court—what essential to reverse judgment. Before a judgment of the Municipal Court will be reversed the Appellate Court must be “satisfied that the judgment is contrary to the law and the evidence.”</p>

<p>Assumpsit—when absence of Ueense mil not preclude recovery of commissions. If there is an ordinance regulating an occupation and requiring those engaged therein to be licensed, a recovery of commissions may be had by one not regularly engaged in such occupation who merely made an isolated sale.</p>

<p>1. Insurance—how policy to be construed. If a policy is not ambiguous it is to be construed most favorably to the beneficiary.</p> <p>2. Insurance—provision as to deduction of indebtedness construed. Held, that a provision in a life insurance policy having loan values authorizing the company to deduct “any indebtedness to the company” was not applicable to 'an indebtedness which arose with respect to matters outside of the policy.</p> <p>3. Accord and satisfaction—what constitutes. When a party entertaining an honest belief that he is indebted in a smaller sum than is claimed by his creditors, offers to pay such smaller sum on condition that it must be taken if at all in full satisfaction of the claim, in dispute, and the creditor receives and receipts for the money, he takes it subject to the condition attached to it, and it will operate as an accord and satisfaction.</p> <p>4. Accord and satisfaction—when not established. Held, under the evidence in this case, that an accord and satisfaction was not established.</p>

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

<p>Attachment. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>1. Constitutional law—when assessment of damages after default proper. After default damages may be assessed by virtue of statute by the court without the interposition of a jury and the assessment of damages in this way is not a taking of property without due process of law.</p> <p>2. Municipal Coukt—when statement of claim sufficient after default. A statement of claim as follows, held, sufficient after default: “Plaintiff claim is for money loaned $100. To Attorney fees $20. By cash $20.”</p>

<p>Action in debt. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Landlord and tenant—what damages cannot he recovered in action for failure to furnish, heat, etc. Damages not proximately resulting and not definitely established as to amount cannot be recovered in an action for the breach of a verbal agreement to furnish heat, etc.</p>

<p>1. Appeals and errors—how record cannot be impeached. Affidavits will not be considered which tend to impeach the transcript of the record filed on review.</p> <p>2. Bailments—what essential to recover of bailee. To recover damages from a bailee for the negligently keeping of a bailment, its condition at the time of delivery should be shown.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the October term, 1909.</p>

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

<p>Brokers and factors—legal effect of exclusive agency. An exclusive agency to sell property subject to revocation by ninety days’ notice, may be revoked at any time unless a consideration for the granting of the agency is established. Services, however, definitely proven to have been rendered, may under certain circumstances be recovered for upon a quantum meruit, but a recovery of the specific compensation provided for if the purchaser is obtained after revocation will not be sustained.</p>

<p>1. Partnership—what does not establish. An interest in profits accruing through use of office space, etc., does not establish a partnership so as to require a joinder of a party having such interest as a plaintiff in an action in assumpsit.</p> <p>2. Brokers and factors—ordinance requiring license construed. A general ordinance of the city of Chicago requiring brokers to be licensed according to its term's, does not include a stock broker.</p> <p>3. Gambling—when transaction in stock does not violate statute. In this ease while no affirmative defense that the transaction in question was gambling in nature was made the plaintiff was put upon his proof to establish a legitimate transaction; held, under the evidence, that the legitimacy of the transaction prima facie appeared and that a recovery should be sustained.</p>

<p>1. Municipal Court—when stenographic report not stricken. Complete formality is not required of the document signed by a judge; if such document is either “a correct stenographic report” or “a correct statement of the proceedings” it will not be stricken.</p> <p>2. Judgments—when affidavit of merits will not prevent default. Unless the affidavit of merits interposed shows a meritorious defense, a default may properly be entered.</p> <p>3. Practice—when striking affidavit of merits will not reverse. Even though an affidavit of merits which has been stricken so closely approaches to fulfilling the requirements of the law as to indicate that a failure of justice may have taken place, the Appellate Court will not reverse where -.the defendant has failed to avail himself of an opportunity given to file an amended affidavit.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Foreign corporations—when defense of doing business contrary to statute not sustained. Held, that the trial court erred in refusing to hear this cause upon the merits, that there was no evidence showing that the plaintiff corporation had not complied with the statute and that it was doing business in this state in violation of the statute.</p>

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

<p>1. Appeals and errors—when reversal ordered; when not. If the appeal is from the Superior Court and error appears reversal will be awarded unless absence of prejudice also appears. If the appeal is from the Municipal Court reversal will not be awarded unless the Appellate Court is satisfied that the error was prejudicial.</p> <p>2. Instructions—when as to effect of representations contained in application for insurance erroneous. In an action by a beneficiary under a life insurance policy where the defense is fraudulent representations contained in the application, it is error to instruct the jury that notwithstanding the admitted signature of the insured to the application (the answers to which were written by the agent of the company) the insured could not be regarded as giving the answers or making the representations contained in the application unless such insured had read the same or knew what they were.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Bill in chancery. Appeal from Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Injunctions—when verification will not support. An injunction will not be sustained where the pleading upon which its granting is predicated is not properly verified.</p> <p>2. Chancery—to what extent will exercise jurisdiction. If a court of chancery acquires jurisdiction of the parties and of the subject-matter of a controversy for one purpose it will retain it for all purposes arid will adjudicate the entire controversy and may by injunction prevent the determination thereof part at law and part in equity.</p>

<p>Municipal, Court—when judgment not disturbed. A judgment of the Municipal Court will not be reversed unless the Appellate Court “shall be satisfied that the judgment is contrary to the law and the evidence, or that the judgment resulted from substantial errors directly affecting the matters at issue between the parties.”</p>

<p>Forcible entry and detainer—who may maintain. A vendee who has become the equitable owner of the premises may maintain forcible entry and detainer even though the legal title has not been conveyed to him.</p>

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

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Judgment—when default should he set aside. A judgment entered by default, even though the service may have been technically in compliance with the statute (in this case it was not), should be set aside if the service did not in fact effect notice of the pendency of the action and a meritorious defense is set up by affidavit.</p> <p>2. Municipal Court—when has jurisdiction to set aside judgment. At ¿ny time within thirty days after a judgment in forcible detainer has been entered the Municipal Court has jurisdiction to set it aside even though proceedings have been had upon a writ of restitution and the time for appeal has passed.</p> <p>3. Forcible detainer—how summons must he served. In actions of forcible detainer commenced in the Municipal Court the summons must be served, “If the defendant be an individual, by delivering to him a copy thereof and informing him of its contents.”</p>

<p>1. Appeals and errors—what order not final. An order arresting a judgment is not final and appealable.</p> <p>2. Costs—when imposition erroneous. It is error to impose costs upon the plaintiff upon entering an order arresting a judgment. In such a case each party bears his own costs.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Fraternal benefit societies—effect of failure to comply with reasonable by-laws. If a member in his contract agrees to be bound by all the laws of the society then or thereafter to be in force, his beneficiary cannot fasten liability upon the _ society if she admits that the reasonable by-laws of the society have not been complied with.</p>

<p>Municipal Court—when without jurisdiction, of criminal cause. The Municipal Court of the city of Chicago has no jurisdiction to entertain a prosecution for an infamous crime.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

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

<p>Action in debt, Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Bill for injunction. Interlocutory appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>