Volume 167 — Illinois Appellate Court Reports

<p>1. Judgments—when action of court in opening, not preserved for review. In the absence of an exception preserved by bill of exceptions an order of court opening a judgment and granting leave to plead is not preserved for review.</p> <p>2. Suretyship—when surety discharged. If a conveyance of real estate is made and the grantee assumes and agrees to pay the indebtedness mentioned in a note and mortgage on said real estate, the grantors become sureties upon the obligation and a release of the lien of the mortgage without the consent of such surety, operates to discharge his personal liability.</p>

<p>Statute op limitations—when defense not established. Seld, under the evidence, that the defense of the Statute of Limitations was not established.</p>

Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the HoN. G-eobge A. Dupuy, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>Bills for accounting, etc. Appeals from the Circuit Court of Cook count j; the Hon. Lockwood Honoke, Judge, presiding.</p>

<p>Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.</p>

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

<p>1. Mandamus—when demand to inspect corporate records sufficient. Held, in this ease, that both the written and verbal demands made to inspect corporate records were sufficient, and that such demands having been refused mandamus was properly awarded.</p> <p>2. Mandamus—when objections cannot be urged on review. It is too late to urge on review for the first time that a writ of mandamus requiring an inspection of corporate records to be accorded to a stockholder, runs only against the corporation.</p> <p>3. Mandamus—bwrden to establish improper purposes in seelcvng inspection of corporate records. If a corporation has reason to believe that the motives actuating an application to inspect corporate records are illegal and refuses inspection on that ground, it assumes the burden to prove such improper or illegitimate purpose.</p>

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

<p>Verdicts—when set aside. A verdict will be set aside on review as against the evidence where the Appellate Court is of the opinion that it is clearly and manifestly against the weight thereof.</p>

<p>1. Bedemption—who entitled to rents and profits during running of period of. The owner of the equity of redemption is entitled to the rents and profits of premises foreclosed until the expiration of the time of redemption.</p> <p>2. Bes judicata—when right to rents and profits not determined. In a foreclosure proceeding where the contest was as to the right to a decree of foreclosure the question of the right to rents and profits arising after sale is not necessarily determined.</p> <p>3. Bes judicata—limitation of general rule. While the principle of res judicata embraces not only what has actually been determined in a former case but also extends to any other matter properly involved and which might have been raised and determined in it, yet this rule is not applied where the question urged as impliedly adjudicated was made the basis of an order in the principal ease and not in a separate and independent proceeding.</p> <p>4. Costs—taxation of, in chancery. The taxation of costs in chancery cases is ordinarily in the discretion of the chancellor and the exercise of such discretion will not be' set aside on appeal in the absence of a showing that it has been abused.</p>

<p>1. Contracts—advertising, construed. Held, that the particular contract in question in this case did not require the particular advertising matter in question to be printed alongside of unpaid reading matter etc., that there was a blank space in the contract in which to designate the position of the advertisement and that in the absence of designation there was no obligation on the part of the publisher to print such advertising matter in any particular place.</p> <p>2. Contracts—defense available against assignee. Contracts which are not negotiable instruments are subject to the same defense in the hands of assignees as they would be in the hands of the original holders.</p> <p>3. Contracts—when not laeldng in mutuality. Held, under the facts of this case, that the particular contractual obligation was not subject to the contention that it was unilateral in character.</p> <p>4. . Contracts—effect of acceptance of written proposition. Where a party accepts and -adopts a written contract, even though not signed by him, he shall be deemed to have assented to its terms and conditions and to be bound by them.</p> <p>5. Contracts—when letter in pari fixing relations of parties need not be supported by consideration. If a letter is to be construed as part of a written contract and not as representing a separate transaction it is germane to the original contract and the same consideration which supports the written contract likewise supports the letter.</p> <p>6. Instructions—when upon preponderance of evidence not erroneous. An instruction upon this subject which enumerates a number of matters that the jury may consider in determining upon which side lies the preponderance of evidence, is not erroneous if it likewise contains a conclusion as follows: “and from all these facts as shown by the evidence and from all the facts and circumstances so shown, the jury must decide on which side is the preponderance.”</p> <p>7. Pleading—what competent under general issue. Recoupment is proper under the general issue, or under the general issue with notice.</p> <p>8. Parties—who appropriate defendant in action upon contract. A person signing a contract in his own name without limitation and Who pays the consideration therefor is a proper defendant in an action brought on such contract.</p> <p>9. Assignments—who cannot question. In an action upon a contract which has been assigned to the plaintiff the defendant is not entitled to question the matter of the assignment if such defendant has been allowed to interpose its defense precisely as though the action had been instituted by the original holder of the contract.</p>

<p>1. Passenger and carrier—what establishes prima facie case of negligence. In an action by a passenger against a carrier for hire to recover for personal injuries sustained, a prima facie case is established by proof of the relation, a collision while the relation existed and resulting injury and damages.</p> <p>2. Passenger and carrier—care required of latter. Carriers of passengers are held to the exercise of the highest degree of care for the safety of their passengers reasonably consistent with the practical operation of the road.</p> <p>3. Passenger and carrier—contract between. The contract between a carrier and passenger for hire is that the carrier will transport the passenger to his destination in safe and sound cars, equipped with all necessary and proper appliances, operated in a safe and proper manner and without injury.</p> <p>4. Passenger and carrier—when presumption of negligence not overcome. Held, under the evidence, that the presumption of negligence arising from the collision which resulted in the injury of a passenger was not overcome by the evidence adduced by the carrier to rebut such presumption.</p> <p>5. Verdicts—when remittitur does not cure excessiveness. If a verdict is so excessive as to force the court to the conclusion that it was the result of passion, prejudice or sympathy, a remittitur will not cure its vice.</p> <p>6. Verdicts—when excessive, Held, in an action on the ease for personal injuries that a verdict for $6000, reduced by remittitur to $4000, was still excessive where the evidence showed as the only serious injury a wrench to the knee joint, resulting in confinement in bed for a few weeks, leaving synovitis of the knee which may or may not be permanent, but not resulting in any impairment of capacity to pursue usual employment, and where it further appeared that there was no proof of any loss of income or of any moneys expended for medical aid,</p>

<p>Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>1. Negligence—what essential to recovery. In order to recover in an action for negligence the negligence charged in the declaration must be established by the proof. The proof of other negligence which if it had been alleged would have warranted a recovery, is not sufficient.</p> <p>2. Negligence—effect of minute description. If in an action to recover for negligence the plaintiff needlessly describes the manner in which the injury was inflicted with minuteness and particularity and the proof substantially varies from the statements in the declaration, he cannot recover.</p>

<p>1. Trover—what essential to recovery. Trover is a possessory action, and before the plaintiff can recover he must show a tortious conversion of the chattel, a right of property in it, and a right to the immediate possession of it. He must show a right to possession that is absolute and unconditional and not dependent on some act to be performed. He must recover on the strength of his own title and not on the weakness of the title of his adversary.</p> <p>2. Trover—when demand insufficient. If at the time a demand was made the plaintiff did not have the right to the present possession, such demand is unavailing.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.</p>

<p>Trespass on the ease. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the evidence where it is not clearly and manifestly against its weight.</p> <p>2. Evidence—when as to ringing of bell competent. The question being, "Did it ring before that?” an answer as follows, "No, if it had I would have heard it, but I did not hear it,” is competent though not responsive, and in the absence of a specific motion to strike for irresponsiveness the answer is properly allowed to stand.</p> <p>3. Damages-—what may be considered in personal injury case. In fixing the amount of damages plaintiff is entitled to receive, the jury has a right to take into consideration not only the injuries to the plaintiff and the resultant conditions but also has a right to consider physical pain and suffering undergone.</p>

<p>1. P aether ship—construction of contract of, upon dissolution. Held, that where a contract provides for a credit in favor of one party to the partnership, a corresponding charge must be made against the other co-partner.</p> <p>2. Appeals and errors—when petition for rehearing may he properly stricken. A petition for rehearing may properly be stricken if its statements are inaccurate and disrespectful to the court.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Frank Crowe,</p> <p>Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Negligence—when invitation to enter premises established. 'Held, that under the particular custom in question in this case and the knowledge thereof by the defendant established by the evidence, there was an implied invitation to the plaintiff to be upon the premises at the time of his injury and that in consequence the defendant owed to such plaintiff the duty to exercise ordinary care.</p> <p>2. Negligence—leaving machinery unsecured. Held, under the evidence, that it was negligence to leave, in a high wind, a block and boom, attached to a derrick, so unsecured, that they were likely to swing out over a considerable arc and do injury to a servant while in the performance of his duty.</p> <p>3. Master and servant—when declaration need not negative injury by fellow-servants. If a declaration is predicated upon the failure of a master to perform a non-delegable duty, it is not essential that such declaration allege that the injury was not the result of the negligence of a fellow-servant.</p> <p>4. Master and servant—when latter not obliged to inspect. It is not required that a servant inspect a place at which he is assigned to work. The duty qf the master is inspection; that of the servant is merely observátion.</p> <p>5. Child labob law—what “a manufacturing establishment, factory or workshop” within the meaning of the Act of 1897. Held, that the yard in question in this case, was "a manufacturing establishment, factory or workshop” within the meaning pf the Child. Labor Law of 1897.</p> <p>6. Child labor law—what in force. Held, that the 8th section of the Child Labor Law of 1897 is still in force notwithstanding the Revisory Act of 1903, and that said section still applies as furnishing a definition for what is "a manufacturing establishment, factory or workshop” within the meaning of such Revisory Act of 1903.</p> <p>7. Child labor law—effect of Act of 1903. The evident purposes of the Act of 1903 are better to define the extra-hazardous occupations from which by the Act of 1897 the legal employment of youths between 14 and 16 were withdrawn, to provide further conditions in the nature of prior school attendance and teaching in ease of the employment at all of such persons, to shorten the hours allowed for children’s work, and to provide more efficient machinery for. the enforcement of the act. The Act of 1903 was in nowise intended otherwise to repeal or conflict with the law of 1897, and while expressly repealing a Child Labor Act of 1891, it does not mention the Act of 1897.</p> <p>8. Child labor law—what not essential to enforcement in personal injury case. In order to bring a ease within the provisions of the Child Labor Law it is not essential that the relation of master and servant existed between the child injured and the defendant, at the time of the injury. It is sufficient if the child was permitted or suffered to be in a "manufacturing establishment, factory or workshop” of the defendant.</p> <p>9. Child labor law—duty to ascertain age. Once the knowledge, permission and approval of the owner of premises as to the presence of a child on its premises and his labor thereon in a gainful occupation are established, the age of the child becomes a matter which such owner must ascertain at its peril.</p> <p>10. Statutory law—rule of construction. "Words in a subsequent Act are to be given the recognized meaning they had in a former Act in pari materia in the absence of anything to show a contrary intent. ’ ’</p> <p>11. Trial—when denial of continuance will not reverse. The denial of a motion for a continuance predicated upon surprise resulting from the permitting of an amendment will not reverse in the absence of an abuse of discretion being established.</p>

<p>1. Negligence—how question whether violation of ordinance constitutes, determined. Whether an infraction of an ordinance requiring lights is a contributing cause of an accident, is a question for the jury to determine.</p> <p>2. Negligence—when ordinance requiring lights inapplicable. Such an ordinance does not apply after day-break.</p> <p>3. Evidence—how time of day-break established. The only competent evidence in this ease as to the time of day-break on a particular day is that adduced from the weather bureau officials.</p> <p>4. Evidence—what records incompetent. Held, that the records kept by an electrical engineer in the employ of the city of Chicago which purport to show when electric lights controlled from a power house were shut off, were incompetent.</p> <p>5. Words and phrases'—“day-break” defined. Day-break is the dawn or first appearance of light in the morning.</p> <p>6. Appeals and errors—when admission of erroneous evidence will not reverse. The admission of erroneous evidence will not reverse unless prejudice results.</p> <p>7. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its substance was substantially given in other instructions.</p> <p>8. Instructions—approved form as to damages in personal injury ease. An instruction upon this subject as follows, approved:</p> <p>"If under the evidence and instructions of the court the jury find the defendant guilty, then in estimating the plaintiff’s damages, if any, it will be proper for the jury to consider the effect, if any, of the injury in the past and in the future upon the plaintiff, the use of his arm and his ability to attend to his affairs generally, in pursuing any ordinary calling, insofar, if at all, as the evidence shows that these have been affected in the past and will be affected in the future, and also the bodily pain and suffering if any, he sustained or will sustain as a direct result of said injury, and any and all damages insofar, if at all, as they are alleged in the declaration and shore n by the proof to be the necessary and direct result of the injury complained of.”</p> <p>9. Instructions—when not erroneous in failing to identify issues. Held, that an instruction complained of in this case was not erroneous in that it failed to identify issues referred to, when construed in connection with other instructions given.</p>

<p>Contracts—when deemed executed. A contract executed by the parties to be bound, and delivered, without any condition annexed, is binding, notwithstanding a third party is named in such contract who has not signed the same.</p>

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

<p>Master and servant—when doctrine of assumed rislc applies. If the appliances employed by the servant are of simple and ordinary construction and the dangers incident to the employment are such as must have been known and appreciated by all reasonable men, the doctrine of assumed risk will apply.</p>

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

Action in ease for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding.

<p>Municipal court—when without jurisdiction of criminal offense. If an offense is an infamous crime and can only be prosecuted upon indictment by a grand jury, the Municipal Court is without jurisdiction.</p>

<p>Insurance—lohat fraud essential to be shown in order to establish that change of beneficiary was effected thereby. Such fraud or undue influence must be shown as to' have practically deprived the deceased of her free agency, and be particularly directed toward securing the desired and accomplished result. Such proof should be reasonably clear and convincing. It is not enough that it justify a suspicion, conjecture or possibility.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>1. Bankruptcy—who should not represent receiver as counsel. An attorney for creditors petitioning that a corporation be declared bankrupt should not act as attorney for a receiver appointed upon the filing of such petition.</p> <p>2. Receiverships—when services of attorney not rendered to individuals. Held, under the evidence, that the legal services sought in this ease to be made the basis of a set-off, were rendered to the receiver as such and not to the receiver in his individual capacity.</p>

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

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

<p>Insurance—when false swearing vitiates policy. Fraud committed by the insured and false swearing by him in making proofs of loss and in testifying in the action to recover for alleged loss, will vitiate and render absolutely void the policy sued upon if such policy provides that such effect shall result from such conduct.</p>

<p>Insurance—what does not waive forfeiture. Demanding a sworn examination of the insured does not waive a forfeiture effected by the conduct of the assured in swearing falsely to proofs of loss.</p>

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

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

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

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

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy, Judge, presiding.</p>

<p>Master and servant—when doctrine of assumed rislc applies. A servant assumes not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent and if he voluntarily enters or continues in the service knowing or having means of knowing its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury resulting from such dangers.</p>

<p>Municipal court—when final judgment rendered on review. If a ease is tried in the Municipal Court without a jury and the finding is for the defendant, the Appellate Court will upon finding that the judgment should have been for the plaintiff, enter judgment for the plaintiff for the amount shown by the evidence to be due him.</p>

Appeals and errors—when finding by court not disturbed. The finding of the court in eases tried without a jury has the same effect on appeal as the verdict of a jury and such finding will not be disturbed as against the evidence unless clearly and manifestly so. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.

<p>1. Landlord and tenant—when former liable for personal injuries. For defects of which the landlord had notice contained in the portion of an apartment building used in common by the tenants of such building the landlord is responsible.</p> <p>2. New trial—what essential to require, for newly discovered evidence. In order to justify a new trial for newly discovered evidence it must appear that the evidence is of a conclusive character and is not merely cumulative and it must further appear that the evidence could not have been discovered at the time of the trial by the exercise of due diligence.</p>

Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Cci-tiorari denied by Supreme Court (making opinion final).

<p>Corporations—what does not constitute doing "business in this state. The mere signing of a contract in Illinois does not constitute doing business in this state in violation of the statute.</p>

<p>1. Pleadings—when recovery cannot he had upon declaration charging failure to furnish safe place. If the declaration is predicated upon the alleged negligence of the defendant in failing to fasten the slabs of a platform upon which the plaintiff was working, there must be evidence that it was physically possible or practicable to fasten such slabs.</p> <p>2. Master and servant—when doctrine of assumed rislc applies. When an employe has the power to adopt his own method of doing work and he voluntarily selects, of two ways, the more dangerous, he does it at his peril and cannot recover for an injury resulting from such selection.</p>

<p>1. Instructions—when peremptory should not he given. A peremptory instruction should not he given where the evidence tends to establish the allegations of the plaintiff’s declaration.</p> <p>2. Instructions—must not single out evidence. It is improper for an instruction to single out and lay special emphasis upon a partieular item of evidence.</p> <p>3. Instructions—predicated upon evidence. An instruction should not contain an hypothesis not supported by any evidence in the cause.</p> <p>4. Instructions—definite in form. An instruction is properly refused which is vague, indefinite and misleading.</p> <p>5. Evidence—as to what expert testimony competent. Held, that it was proper to inform the jury that the friction of one metal with another would cause heat and that a wooden hub coming in binding contact with a nut would also cause heat and that the expansion of the nut by the heat thus produced would cause it to drop off or break off.</p> <p>6. Evidence—when as to reputation of manufacturer incompetent. Where a charge is made that a wagon was defective, evidence that the manufacturer of such wagon was a reputable manufacturer of wagons, is not competent.</p> <p>7. Evidence—when question calls for conclusion. A question as to who had authority to make promises or assurances calls for a conclusion and an objection to such a question is properly sustained.</p> <p>8. Evidence—when question as to duty competent. Held, that a question which inquires as to whether it was a servant's duty to do a particular thing, was not reversible error.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.</p>

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

<p>Assumpsit—when lies to recover money paid out without authority. If the pastor of a church disburses its funds without authority the amount so disbursed may be recovered by the church, as parties receiving such money are bound to ascertain.at their peril whether such pastor was authorized to disburse the same.</p>

<p>3. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.</p> <p>2. Contracts—when parol evidence does not vary. If the contract originally made was abrogated parol evidence is competent to show the relations of the parties.</p> <p>3. Appeals and errors-—when admission of erroneous evidence will not reverse. The admission of erroneous evidence will not reverse unless prejudice resulted therefrom.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. George A. Dupijy, Judge, presiding.</p>

<p>1. Passenger and carrier—when relation established. If a person, when a car is standing still, places one foot upon the step of the platform thereof with the intention of boarding such ear, the relation of passenger and carrier is established.</p> <p>2. Instructions—what phrases having reference to starting a oar not synonymous. Held, that a car might be “suddenly and violently started forward” without being put in “rapid motion.”</p> <p>3. Verdict—when not excessive. Held, in an action for personal injuries, that a verdict for $3000 was not excessive, where the plaintiff as a result of his injuries was confined to his bed for about four months and for a year was seriously hampered in doing his customary- work.</p>

<p>Action in case. Appeal from the Superior Court of Cook county; the Hon'. Ben M. Smith, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Negligence—when ordinance competent. Held, that the averment in the declaration that the plaintiff’s intestate “was undertaking to enter a vacant seat upon the east side of said grip ear,” taken in connection with the other averments of said declaration, was sufficient to warrant the introduction thereunder of an ordinance requiring a street railway corporation to place a wire guard or other suitable device to prevent passengers from “entering” ears from the side of such car which is nearest to any adjoining street railway track.</p> <p>2. Negligence—how effect of -violation of ordinance determined. Whether or not the failure of a defendant to comply with the requirements of an ordinance was the proximate cause of an injury, is a question of fact for the jury.</p> <p>3. Instructions—when improperly ■ withdraws question of negligence from jury. An instruction which withdraws from the jury the question of the negligence of the defendant as distinguished from the negligence of its employes is erroneous.</p>

<p>Injunctions—when assessment of damages upon dissolution proper. Held, that the evidence in this case justified the assessement of the damages awarded upon the dissolution of the injunction which had been previously granted.</p>

<p>1. Negligence—when evidence does not establish constructive notice of defective condition of sidewalk. Held, under the evidence, that notice of the defective condition of the sidewalk in question had not been established.</p> <p>2. Instructions—when upon preponderance of evidence erroneous. Where in determining the question of where the preponderance lies it is apparent that the number of witnesses is a material element it is error by instructions to ignore the question of the number of witnesses as bearing upon the question of preponderance.</p>

<p>Verdicts—when set aside with finding of facts. Where the evidence establishes that the plaintiff who was a servant of the defendant had assumed the risk which resulted in ,.his injury a judgment in Ms favor will be reversed with finding of facts.</p>

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

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

<p>Appeal from the County Court of Cook county; the Hon. William C. De Wolf, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>Appeal .from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Thomas "G. Windes, Judge, presiding.</p>

<p>1. Estoppel—when arises to deny ownership. A railroad compan) cannot deny ownership of land where it is asserting the existence of its rights by virtue of the very instruments which establish such ownership.</p> <p>2. Dedication—what tends to establish. Entering upon a street and improving the same shows an acknowledgment of a grant and" an intention to avail thereof.</p> <p>3. Trespassers—when person upon right of way not. A person is not a trespasser upon the right of way of a railroad company if the evidence fails to establish that the railroad company had superior rights to the general public upon the place where its right of way was located.</p> <p>4. Negligence—when method of switching constitutes. Held, that whether under the circumstances of this case it was negligence to turn loose without means of control, a train or ear on a public street, and with no one in front of this moving train to give warning, was a subject to be decided by the jury.</p>

<p>Malicious prosecution—what essential to recover in action for. In actions of this character to be successful the plaintiff must establish by a preponderance of the evidence that the defendant acted without reasonable cause and was actuated by malice.</p>

<p>Error to the Superior Court of Cook county; the Hon. Axel F. Chytraus, Judge, presiding.</p>

<p>1. Municipal court—effect of dismissal of co-defendant in action upon contract. In a ease where there are no written pleadings, upon the failure of the evidence to establish joint liability upon the part ol the defendants, a dismissal of one of such defendants does not affect the right to proceed to judgment against the other defendant if the facts show a cause of action against him.</p> <p>2. Municipal court—when judgment not reversed. A judgment of the Municipal Court will not be reversed if it appears that substantial justice between the parties has been done.</p>

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

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

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

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

<p>1. Municipal court—when form of action adopted immaterial. So far as the question of the jurisdiction of the Municipal Court and the procedure therein are concerned, it makes no difference what the form of action is, because in that court in suits of the 4th class no written pleadings are required, and if the court has jurisdiction of the parties and the subject-matter it may render such judgment as is necessary to do justice between the parties.</p> <p>2. Negligence—ivhen receiver Katie. The test of liability lies in the determination of the fact as to whether the receiver was actually in control.</p>

<p>1. Replevin—right of defendant to maintain action against plaintiff for wrongfully suing out. A defendant successful in a replevin action need not sue the surety upon the replevin bond given; but may institute action against the plaintiff in the replevin suit for the wrongful obtaining of the writ.</p> <p>2. Municipal court—effect of adoption of particular form of action. In 4th class eases in the Municipal Court no written pleadings are required, and the same rule obtains as in cases before justices of the peace. It makes no difference whether the form of action is apparently in tort or in assumpsit. All that is necessary is that the court have jurisdiction of the parties and the subject-matter. It may then enter such judgment as the successful party is entitled to on the evidence.</p>

<p>Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.'</p>

<p>Contracts—what nudum pactum. The promise to, carry out an executory contract already in existence, will not support an agreement for additional compensation.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Inns and innkeepers—when common law liability does not exist. An innkeeper is not an insurer of the safety of baggage if the relation of innkeeper and guest is not established.</p> <p>2. Bailments—care required of gratuitous. A mere gratuitous bailee of property is bound to take reasonable care to protect it from loss or damage, that is, such ‘/care as men of common prudence usually bestow for the protection of their own property of a similar character. ’ ’</p> <p>3. Bailments—when prima facie established. In any contract of bailment upon proof by the bailor that he placed property in the hands of the bailee and that the same was not returned upon demand the law presumes negligence on the part of the bailee and imposes on him the burden of showing that he exercised such care with respect to the property as was required.</p> <p>4. Bailments—what competent to rebut presumption of negligence. Held, that it was competent for the bailee to show that the several employees who were entrusted with the property alleged to have been lost were competent and were so considered by the bailee when he employed them.</p>

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

<p>1. Verdicts—when set aside as against the evidence. A verdict will' be set aside as against the evidence where clearly and manifestly so.</p> <p>2. Instructions—when cannot he complained of. If an instruction is improper in departing from the averments of the declaration it cannot be complained of where instructions given at the instance of the-complaining party contained a like impropriety.</p>

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

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

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

<p>1. Master -and servant—when doctrine of assumed risk applies; when not. A servant assumes the risks arising from defective tools and machinery and from defects in his working place if after the employment he knows of the defects and appreciates the dangers thereof and voluntarily continues in the service without objection. The law makes an exception to that rule, where the servant gives notice of the defects and dangers and the master promises him to remedy the defects the servant may then continue in the same service for such a time as would be reasonable for the master to fulfil such promise.</p> <p>2. Master and servant—when “simple tool rule,” applies. The “simple tool rule” is only applicable where the servant performs ordinary labor with ordinary tools at any place' where no intricate or dangerous machinery is involved. The doctrine is not applicable to any given case upon the grounds solely that the defect is simple and that the servant has full knowledge of the defect and danger of which complaint is made.</p> <p>3. Master and servant—when doctrine of assumed risk does not apply. The doctrine of assumed risk does not apply in any case where the servant is working with defective and dangerous machinery unless the servant knows the defects and the dangers thereof. If he simply knows of the defects but does not know and appreciate the dangers incident thereto the doctrine does not apply. If he knows the defects and the dangers and makes complaint that it is dangerous to him to work with the machinery and of his intent to quit the work unless the defects are remedied and receives a promise by the master to remedy the defects or to remove the danger, the servant may then continue to work with the dangerous machinery until the master has had a reasonable time to fulfil his promise, and during that time the risk is not at all assumed by the servant.</p> <p>4. Master and servant—when doctrine of assumed risk applies. If a servant is working at common labor with simple tools, such as an axe, or a hammer or a hoe, and is as familiar with them .and the dangers, thereof as the master, and is not exposed to any danger except those that are incident to the 'use of such tools in a defective condition, the doctrine of assumed risk applies at all times and is not suspended by a promise to remedy or repair the defects.</p> <p>5. Instructions—ivhen containing abstract proposition of law ground for reversal. An instruction which contains an abstract proposition of law calculated to mislead is ground for reversal.</p> <p>6. Verdicts—when excessiveness cannot he cured hy remittitur. If the appellate court is unable to account for the size of a verdict by any reasonable view of the evidence except upon the theory that such verdict was the result of prejudice, passion or a misconception by the jury of the evidence bearing upon the question of damages, it cannot be cured by the allowance of a remittitur.</p>

<p>1. Bes adjudicata-—when former opinion not. An opinion by the appellate court upon a former appeal in the same case is not binding if after its rendition the supreme court has determined the law to be otherwise than as therein stated.</p> <p>2. Pleading—effect of failure to demur. If a defendant desires to question the sufficiency of a declaration he should demur to it or move in arrest of jugdment, and if he fails to do either he should be held to have admitted the sufficiency thereof.</p> <p>3. Pleading—when absence of specific cuverment of due care cured. If a declaration in a personal injury ease does not specifically aver the exercise of due care by the plaintiff such defect will be cured if the defendant did not demur to the declaration, did not move in arrest of judgment, and by intendment it could be said from the allegations of fact contained in the declaration that due care was exercised and the proof offered was sufficient to establish the exercise of due care.</p> <p>4. Passenger and carrier—duty of latter where former rides upon footboard. Where no seats are furnished and the carrier permits a passenger to ride on the footboard the carrier assumes the duty of exercising the care demanded by the circumstances, that is to say, the highest degree of care, vigilance and foresight for the safety of the passenger which it could reasonably do in view of the character and mode of conveyance adopted consistent with the practical operation of its cars at the place where the collision occurred.</p> <p>5. Passenger and carrier—duty of latter in approaching gateway. Where the habitual use of a gateway by the public in driving there-through is known to the carrier and the danger of collision is probable, it is the duty of those in charge of a traction car to approach such place with the car under full Control and particularly so when the footboard next to the gateway is crowded with passengers.</p>

<p>1. Pleading—effect of general issue in action of tort. In an action of tort the plea of not guilty controverts the truth of such allegations in the declaration as the plaintiff is bound to prove and no more.</p> <p>2. Pleading—when plea of son assault demesne unavailing. If the defendant by his testimony expressly disproves a plea of son assault demesne the defense interposed by such plea is to be totally disregarded and the claim of justification is to be considered no longer in the case.</p> <p>3. Instructions—when erroneous will not reverse. An erroneous instruction will not reverse if the theory of defense therein set forth has been expressly repudiated by the defendant’s own testimony.</p> <p>4. Instructions-—predicated upon evidence. An instruction is properly refused which is not predicated upon any evidence in record.</p> <p>5. Instructions—upon what theory party entitled to. A party is only entitled to instructions on his theory of the case if such theory is disclosed by the pleadings and is supported by evidence.</p> <p>6. Instructions—when motion for peremptory properly denied. A motion for a peremptory instruction is properly denied if there is any evidence in the record fairly tending to support the material allegations in the declaration.</p> <p>7. Evidence—when upon quantum of proof properly refused. It is proper for the court to refuse an instruction which requires the plaintiff to prove his ease beyond a reasonable doubt if the pleadings do not specifically charge a criminal offense.</p> <p>8. Trial—what essential to render remarles of court ground for reversal. It is only where an unguarded remark of the court in the presence of the jury upon a matter of fact that is for the determination of the jury, is calculated to prejudice the rights of the defeated party, that it is ground for reversal.</p> <p>9. Verdicts—when not excessive. Seld, in a personal injury action, that a verdict for $2,000 was not excessive, where it appeared that a shot from a revolver of the defendant penetrated the right arm of the plaintiff below the shoulder joint, passed through the arm, shattered the bones, passed into the right lung, where it continued to remain, and where it further appeared that the plaintiff suffered pain and was permanently injured.</p>

<p>1. Evidence—when right to recover upon written instrument prima facie established. Where there is no issue made by the pleadings as to the validity or bona fides of the instrument sued on or the consideration on which it is based or the right of the party to sue, the introduction in evidence of such instrument, regular on it face, shows prima facie the right of the party suing thereon to recover.</p> <p>2. Evidence—what proof of title to written instrument. The mere possession of a promissory note or bond is prima facie evidence of the legal title to the instrument and the right of the one in possession to sue thereon, and in the case of an instrument of that character made payable to some person other than the one in possession the presumption arising from possession is that the one in possession may sue thereon in the name of the person to whom it is made payable.</p> <p>3. Principal and agent—presumption of authority of attorney. An attorney of record who has possession of a promissory note and who brings suit thereon is presumed to have authority from the payee of the note to conduct such suit. ,</p> <p>4. Presumptions—as to existence of plaintiff or complainant. The presumption of the authority of an attorney to act for a party in bringing a suit in the name of such party necessarily carries with it the presumption of the existence of such party.</p> <p>5. Presumptions—as to performance of official duties. In the absence of proof to the contrary it is presumed that a public officer has done his duty.</p> <p>6. Chattel mortgages—when prima facie valid. If a chattel mortgage provides for the retention of the mortgaged property by the mortgagor and it is made, acknowledged and recorded as provided by statute, it is prima facie valid as to the creditors of the mortgagor, and proof of the bona fides of the transaction is not necessary in the first instance.</p> <p>7. Chattel mortgages—vdien acknowledgment sufficient. The acknowledgment of a chattel mortgage before a duly qualified deputy clerk of the municipal court who signs the name of the clerk of such court and attaches the seal of such court to a proper certificate is a sufficient compliance with the statute, even though he does not affix his own name as deputy to the certificate after the name of his principal.</p> <p>■ 8. Chattel mortgages—what does not affect sufficiency of acknowledgment. In the absence of proof that no memorandum by the deputy taking an acknowledgment of a chattel mortgage was made as required by statute the presumption will prevail that a proper memorandum was made.</p> <p>9. Chattel mortgages—effect of failure of cleric to make memorandum. Even if the clerk of the municipal court fails in his duty to make a memorandum required by statute the rights of the mortgagor who had no control over the clerk cannot be prejudiced by such failure if the mortgage is in proper form and is recorded.</p> <p>10. Chattel mortgages—when lien superior to that of distress warrant. If a chattel mortgagee has not exercised his election to foreclose upon default in payment of one of several instalments his lien is not lost if the last instalment has not matured when a distress warrant is levied upon the property remaining in the possession of the mortgagor pursuant to the terms of the mortgage.</p> <p>11. Chattel mortgages—when finding that property mortgaged was not household property, not disturbed. If the finding of the master confirmed by the court to the effect that the property covered by the mortgage was not household property is not manifestly against the weight of the evidence it will not be disturbed on appeal.</p> <p>12. Municipal Court—how acts of deputy cleric to be performed. When any act is performed by a deputy the authority to do which he has solely by reason of the fact that he is such deputy, the act may always be done and usually must be done in the name of his principal, and where the act done is the signing of some instrument and the deputy signs the name of his principal the act is the act of the principal and binds him and all the parties concerned as fully as if it had been signed by the principal, even though the name of the deputy actually signing it is not added. ■</p> <p>13. Degrees—when newly discovered evidence not ground for setting aside. If the alleged newly discovered evidence is cumulative in character and not of a controlling effect, it will not justify the setting aside of the decree rendered.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John' Gibbons, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.</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.

<p>1. Forcible entry and detainer—what not proper subject of in■quiry in an action of forcible entry and detainer. The question as to "the title of the premises involved cannot be inquired into.</p> <p>2. Forcible entry and detainer—what not defense in an action of forcible detainer. To recover possession of premises wrongfully detained no cross demand in the nature of a recoupment can be interposed by way of defense.</p> <p>3. Landlord and tenant—estoppel to deny title. A tenant in possession under a lease is estopped to deny title in the lessor or in the grantee of the lessor.</p> <p>4. Landlord and tenant—what does not waive time of payment of ■rent. The fact that payment of instalments was not always insisted upon when due by, the terms of a lease, does not operate to relieve the tenant from the obligation to pay the rent due upon demand therefor.</p>

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

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

<p>Insurance—when suicide established. Held, notwithstanding a coroner’s verdict finding that the insured came to his death accidentally, a verdict not otherwise supported will be set aside and a finding of the fact of suicide will be entered where the evidence clearly demonstrates -that such was the cause of the death of the insured.</p>

<p>Contempt—failure to obey subpoena duces tecum. In the absence of a showing of the materiality of the books, documents and papers designated, a party failing to obey a subpoena duces tecum cannot be adjudged in contempt and punished therefor.</p>

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

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

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

<p>Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.</p>

<p>Action for libel. Appeal from the Superior Court of Cook county; the; Hon. Willard M. MgEwen, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gem-mill, Judge, presiding.</p>

<p>Municipal Coubt—when authorised to enter default. Under the statute and adopted rules of the municipal court, .which authorizes the requiring of an affidavit of merits, the municipal court may, in advance ■of the trial, notwithstanding the defendant has entered his appearance, require him to file an affidavit of merits, and may in the absence of such an affidavit enter default and judgment without having the cause set for trial.</p>

<p>1. Suretyship—when instrument continuing guarantee. Held, that the instrument set forth in the opinion in this ease fixing no limit as to the amount of credit that should be given the debtor by reason of the limitation as to the amount guaranteed, and which further fixed no limit of time, although the amount of the guarantee was limited, was continuing in character.</p> <p>2. Suretyship—effect of failure to notify guarantor of debtor’s default. The failure of the creditor to notify a guarantor promptly as to the debtor’s default is only a defense in so far as such guarantor suffers loss in consequence.</p>

<p>1. Negotiable instruments—when want of consideration cannot he ■shown. In an action upon promissory notes, the defense of a want of consideration cannot be shown, if, in order to do so, it is necessary to open up partnership accounts which have been settled by agreement of the parties.</p> <p>2. Partnership—jurisdiction in matters of account. A court of ■equity has exclusive jurisdiction to settle and determine disputed items involved in a partnership accounting.</p> <p>3. Assumpsit—what does not preclude maintenance of action. The fact that promissory notes sued on, represent a settlement between the partners of their accounts as such, does not preclude an action thereon in a court of law.</p>

<p>1. Municipal Court—within what time hills of exception must he •filed. The municipal court act as amended in 1907 limits the time within which the municipal court has jurisdiction in the first class cases to act with reference to bills of exceptions, to 60 days, and such time in addition as within 60 days may be on application granted.</p> <p>2. Verdict—when separate documents constitute single. Held, that the several documents referred to in this case were in reality, as they were treated, instruments which constituted one single verdict.</p>

<p>Appeals and errors—when findings 6y master presumed supported hy evidence. If it appears from the record presented on review that numerous material documents were offered in evidence and considered by the master, his findings of fact confirmed by the chancellor will be presumed to have been supported by the evidence which was before him.</p>

<p>1. Statute of limitations—when new cause of action set up. Where a declaration filed within the limitation period fails to state a cause of action, and an amended declaration or additional count stating a good cause of action is filed subsequent to the running of the statue, a plea of the statute of limitations should be sustained.</p> <p>2. Statute of limitations—when new cause of action not set up. If the amended or additional count be predicated upon a prior count which effectively stated a good cause of action á new cause of action is not set up.</p> <p>3. Pleading—what essential to statement of cause of action. In an action for personal injuries a declaration does not state a cause of action unless it avers facts showing legal liability.</p> <p>4. Pleading—when declaration does not state cause of action against landlord for personal injuries sustained. Unless the declaration show that at the time of the injury complained of the. landlord was either in possession of the premises in question, or was under some obligation to repair or keep the same in repair, no cause of action is set up.</p>

<p>■ Action in ease for personal injuries. Error to the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Merbitt W. Pinckney, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.</p>

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

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

<p>1. Municipal court—how form of action determined. The form of the action in cases of the 4th class is to be determined from what the evidence shows and it is the duty of the municipal court irrespective of the name given to the action to render judgment according to what the evidence established.</p> <p>2. Trover—ivhat essential to maintenance. To constitute conversion the refusal to return upon demand must be absolute and amount to a denial of the plaintiff’s title to the possession.</p> <p>3. Common carriers—what essential to contract to carry and deliver. Delivery to the carrier at the point of shipment is essential to create a contract by the carrier to carry and deliver.</p> <p>4. Interstate commerce act—when inhibition against limiting liability does not apply. The interstate commerce law applies only to shipments which are in the custody of carriers as carriers and before their duty as such has terminated.</p>

<p>1. Instructions—effect of motion for peremptory. A motion for a peremptory instruction is, in effect, a demurrer to the evidence, and admits not only the facts proved, but all the inferences reasonably to be drawn therefrom.</p> <p>2. Passenger and carrier—obligation of latter to light right of way. While a carrier is ordinarily under no obligation to light its entire right of way, yet if it habitually stops its trains at some point upon its right of way where there is no station house, and which was unprovided with the ordinary facilities for safely landing its passengers, an injury resulting to a passenger in consequence of a failure adequately to light the place at which such passengers were authorized by its invitation, express or implied, to alight, presents a question for the jury to determine whether such failure adequately to light even a portion of its right of way when taken in connection with the other circumstances constitutes negligence.</p>

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