Volume 169 — Illinois Appellate Court Reports

<p>Mechanic’s liens—what not within contemplation of Federal statute providing bond of contractor to protect sub-contractors. Feed furnished for the teams of a contractor is not included within such statute.</p>

<p>Partnership—when equity will not entertain proceeding for accounting. If the partnership has been fully dissolved and a written contract entered into representing the dissolution effected, the remedy is at law for a breach of such contract of dissolution and equity will not take jurisdiction of a bill for an accounting.</p>

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

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

<p>1. Verdicts—how excessiveness may he cured. A verdict for an excessive amount may be cured by the entry of a remittitur.</p> <p>2. Instructions—•when modification proper. If an instruction as presented would be calculated to mislead, a modification which cures that vice is proper.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.

<p>1. Instructions—when motion for peremptory properly denied. Whero the evidence tends to establish the allegations of the declaration a motion for a peremptory instruction is properly denied.</p> <p>2. Instructions—lohen as to conjoint use of street not erroneous. Held, in this case, that it was not error to give an instruction as follows:</p> <p>“The court instructs the jury that both plaintiff and defendant were equally in the position of right to use the public thoroughfare upon which the plaintiff ivas driving and the defendant was operating its cars, which right they held and enjoyed independently of each other, and that each should exercise ordinary care in the use of the street. ’ ’</p> <p>3. Instructions—when refusal of correct will not reverse. It is not error to refuse a correct instruction if its contents are substantially contained in another instruction given.</p> <p>4. Verdicts—when not excessive. Held, in a personal injury action, that a verdict for $750 was not excessive where it appeared that the plaintiff’s injury was painful, resulted in the gathering of pus in his shoulder which necessitated an operation serious enough to require the administration of an anaasthetie, it further appearing that the plaintiff was attended by a physician for about 3 weeks and incurred a liability for $60 and at the time of the trial, more than 2 months after his injury, was still suffering from the bruises sustained.</p>

Action in case for personal injuries. Appeal from the City Court of Harrisburg; the HoN. A. E. Someks, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

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

<p>Appeals and errors—when finding of chancellor not disturbed. The finding of a chancellor will not he set aside as against the weight of the evidence unless clearly and manifestly so.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.

<p>Action in debt. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.</p>

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

<p>Action in case for death caused by alleged wrongful act. Appeal from the City Court of DuQuoin; the Hon. B. W. Pope, Judge, presiding.</p>

<p>Instructions—when error to give peremptory. It is error peremptorily to instruct for the defendant where the proofs fairly tend to show a cause of action.</p>

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

<p>Bill in chancery. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>Assumpsit. Appeal from the City Court of Marion; the Hon. W. W. Clemens, Judge, presiding.</p>

<p>1. Insurance—when partial exclusion of applications proper. If the policy sued upon recite that the same contained "the 'entire contract between the parties,” the applications upon which they are predicated are not necessarily competent in the entirety. Held, in this case, that the ruling of the trial judge in admitting only such portions of the application in question as distinctly pertained to the special pleas was proper.</p> <p>2. Insurance—what evidence incompetent to defeat recovery. Held, that where the application upon which the policy was predicated was not made part of such policy that it was proper for the court to refuse to permit a witness offered by the defendant to answer questions seeking to ascertain whether or not defendant insured the lives of persons having tuberculosis or the lives of persons .whose parents, brothers or sisters were known to have had consumption; also as to whether the answers of the applicant as to the condition of his health were material to the risk insured and whether the policy would have been issued had the answer to one of the questions disclosed that the applicant had a sister who died of consumption.</p> <p>3. Insurance—when unsoundness of applicant's health constitutes defense. A provision in a policy which provides that the company shall not be liable except to return the premiums paid if the insured on the date of the policy is not in sound health is a valid provision and if and where sustained by the evidence constitutes a good defense unless it appear that the defendant at the time it issued such policy had knowledge that the health of the insured was not sound. Knowledge of unsoundness is sufficient to constitute a waiver irrespective of knowledge of the exact condition which caused the unsoundness of the insured's health. , o</p> <p>4. Insurance—when instruction as to false answers in application erroneous. Held, in this case, that the instructions of the court as to what was essential to constitute the defense upon the ground of false answers made by the insured were proper so far as one policy sued upon was concerned but were erroneous as to the other policy in suit.</p> <p>5. Evidence—when leading questions improper. If a witness state that he does not recollect a part of a material conversation the party interrogating him is entitled to refresh his recollection but not by putting in the mouth of the witness the exact words which he desires him to employ.</p> <p>6. Instructions—when upon right to disregard testimony of witness erroneous. It is only where a witness has knowingly and wilfully sworn falsely to some fact material to the issue that the jury is entitled to disregard his entire testimony and an instruction which violates this rule is erroneous and ground for reversal.</p>

<p>1. Verdicts—when set aside as against the evidence. A verdict dearly and manifestly against the weight of the evidence will be set aside on review.</p> <p>2. Instruction's—when as to effect of introduction of promissory note erroneous. An instruction which tells the jury that the introduction of a promissory note is only prima facie evidence of execution and indebtedness and that unless they find after a full consideration of all the evidence that plaintiff at the time she is alleged to have signed said note knew and understood the nature of the paper she was signing and knowingly signed it and that she was then indebted to the defendant for the account named therein, the said note should not be allowed as a set-off against the demand of the plaintiff on the policy sued on, held, erroneous, first, because such instruction stated the law to be that the note introduced in evidence was only prima facia evidence of the execution and indebtedness and to give it effect in this ease required additional proof that the plaintiff knew the nature of the paper when she signed it and knowingly signed it and second because the instruction as a whole might readily lead the jury to believe that notwithstanding it appeared the plaintiff signed the note in question yet the burden was on the defendant to show that she at the time of signing understood its nature and knowingly signed it.</p>

<p>Master and servant—test of liability. The real test of the master’s liability is whether the act which caused the injury was committed by the master’s authority expressly averred or fairly implied from the nature of the employment, and the duties incident to it. Por all acts done under express authority as well as for all acts clone by the servant in the execution of the master’s business within the scope of his employment the master is responsible.</p>

<p>1. Verdicts—ivhen 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. Instructions—effect of repetitions. Mere repetitions in instructions of the same principle of law are not ground for reversal.</p> <p>3. Instructions—when reversal proper. An instruction which is calculated to mislead is properly refused.</p> <p>4. Variance—how objection for should be made. An objection for variance should be specific otherwise it will not avail.</p> <p>5. Evidence—what incompetent. Hearsay evidence is not competent and does not tend to establish the fact sought to be shown.</p> <p>6. Appeals and errors—when refusal of special interrogatories not subject to review. The record should affirmatively show that special interrogatories were presented to counsel before the commencement of argument, otherwise the action of the court in refusing to submit the same to the jury will not be reviewed.</p>

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

<p>1. Negligence—when motorman guilty of. Held, that the jury were warranted in finding that the child killed was on the track of the defendant traction company or so close to it and between the track and a pile of brick by the side of the track that it imperiled the life of the child and that the motorman ought by reasonable diligence to have observed the child and its peril and avoided the injury.</p> <p>2. Negligence—how may he established. The fact of negligence may be established by circumstantial evidence.</p> <p>3. Presumptions—tvhen not indulged. A presumption emnot be based upon a presumption of negligence, and the existence of a certain fact cannot be reasonably inferred from the evidence if the existence of another fact, entirely inconsistent with the first, may be inferred as certainty from the evidence.</p> <p>4. Instructions—when upon question of negligence proper. Held, that an instruction upon this subject as follows was proper:</p> <p>"If you believe from the greater weight of the evidence that no witness or witnesses saw or observed the immediate cause of the injury to the deceased, then in determining the evidence the immediate cause of the injury to deceased, you have a right to consider all of the facts and the circumstances detailed in evidence by the witnesses in the case and you may find the immediate cause of the injury to be proven by, or from any facts or circumstances, if any, from which you may believe the immediate cause of the injury to the deceased may be rightfully and reasonably inferred. ’ ’</p> <p>5. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in another instruction given.</p>

<p>Action in case for personal injuries. Appeal from the Oity Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding.</p>

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

<p>Appeals and errors—when questions not saved for review. In the absence of the record purporting by the certificate of the judge to contain all the evidence heard, questions involving rulings upon the evidence, upon the instructions and upon the sufficiency of the evidence to sustain the verdict are not saved for review.</p>

<p>Action in ease for personal injuries. Appeal from the Circuit Court of White county; the Hon. Enoch E. Newlin, Judge presiding.</p>

Action in care for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. J. M. Bandy, Judge, presiding.

<p>Divorce. Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding.</p>

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

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.</p>

<p>1. Pleading—when answer in chancery considered as evidence. If the answer under oath be not waived and a sworn answer is interposed it is to be considered as evidence and to overcome such answer the testimony of two witnesses or the equivalent is required, but this rule does not apply with respect to conclusions and indirect answers contained in such a pleading. The answer to have the weight above must be squarely responsive to the allegations of the bill.</p> <p>2. Mortgages—when absolute deed constructive. -Held, under the evidence that the deed in question in this ease was given as and should be held to be a mortgage.</p>

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

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

<p>Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Bill for injunction.' Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding.</p>

<p>Bill in chancery. Error to the Circuit Court of Jefferson county; the Hon. J. It. Creighton, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Pulaski county; the Hon. William N. Butler, Judge, presiding.</p>

<p>Error to the County Court of White county; the Hon. K. C. Ronalds, Judge, presiding.</p>

<p>1. Evidence—what not part of res gestae. Statements made to and by a conductor after an accident are not part of the res gestae, and should not be admitted.</p> <p>2. Evidence—when as to pecuniary condition improper. In an a?tion for personal injuries it is not proper to show the impecuniosity of the plaintiff.</p>

<p>Appeal from the Circuit Court of Wabash county; the Hon. Jacob R. Creighton, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of Wabash county; the Hon. E. E. Newlin, Judge, presiding.</p>

Action in ease for personal injuries. Appeal from the Circuit Court of Randolph county; the Hon. W. E. Hadley, Judge, presiding.' Certiorari denied by Supreme Court (making opinion final).

<p>1. Execution—when levy establishes lien. If a levy is made it is not necessary that the officer shall remove the property levied upon but it is sufficient if he assumes dominion over it with the express purpose of holding it under the writ.</p> <p>2. Sales—what void as against third persons. A sale of chattels where possession remains with the vendor is fraudulent per se and void as to creditors and subsequent purchasers. There is however an exception to the rule requiring actual delivery in a case where the property when sold is in the possession of the bailee or custodian of the vendor.</p>

<p>Assumpsit. Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.</p>

<p>Assumpsit. Appeal from the City Court of Granite City; the Hon. James E. Dunnegan, Judge, presiding.</p>

<p>Instructions—when as to right to reject testimony erroneous. An instruction on this subject is erroneous which tells the jury that they have the right to believe all the testimony oí a witness or to believe it in part or they may reject it altogether if they find from a consideration of all the evidence that such evidence is untrue or unreliable.</p>

<p>1. Verdicts—when not disturbed as against the evidence. A verdict willl not be set aside as against the evidence unless clearly and manifestly so.</p> <p>2. Appeals and errors—what essential to preserve propriety of arguments of counsel. A party can only complain of such conduct when he has objected and obtained a ruling and excepted to it or excepted to a refusal of the court to rule.</p> <p>3. Appeals and errors—how arguments of counselt preserved. Objectionable arguments must be shown by a bill of exceptions and -not by ex parte affidavits on a motion for new trial.</p> <p>4. Evidence—when permitting additional cross-examination not improper. It is within the discretion of the court to permit a witness to be called for further cross-examination and the action of the court in that regard will not constitute error unless an abuse of discretion appears.</p> <p>5. Instructions—when failure to limit'cross-examination not error. The court may in its discretion give extended latitude to a cross-examination and in the absence of an abuse of discretion error will not result.</p> <p>6. -Instructions—when erroneous will not reverse. Erroneous instructions will not reverse unless harm has resulted therefrom.</p>

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

<p>Receiver ship—right of receiver to appeal. A receiver is not entitled to appeal from an order which merely discharges him. If, however, the order in question fails to protect him with respect to disbursements made by him which are properly chargeable upon the property he has the right to obtain a review of such order.</p>

<p>1. Nuisances—what not. Theatres conducted, properly and so located as not seriously to annoy the neighborhood are not nuisances ' per se at common law, and only become nuisances when they are used for the exhibition of immoral and vicious plays or when they call together disorderly and vicious people.</p> <p>2. Injunctions—when restraining theatrical performance on Sunday erroneous. Held, under the evidence, that it did not appear that the proposed play was improper or immoral and that the restraining of its production upon the Sabbath day was not justified either upon the ground that it was a nuisance or that it would disturb the public peace.</p>

<p>Action of debt. Appeal from the Circuit Court of Wayne county; the Hon. William H. Green, Judge, presiding.</p>

<p>Trespass. Error to the Circuit Court of Randolph county; the Hon. L. Bernreuter, Judge, presiding.</p>

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

<p>Partnership—when does not exist as to third persons. Persons are not liable as partners to third persons unless they are in fact partners inter se or have held themselves out as partners under such circumstances as to estop them from denying that they were partners.</p>

<p>1. Municipal corporations—what does not affect eligibility of alderman. A conviction of the crime of using the mails for lottery schemes does not render an incumbent ineligible to hold the office of alderman.</p> <p>2. Municipal corporations—what essential that conviction shall affect eligibility of aldermen.. Held, that a statute which renders an alderman ineligible if convicted ‘ ‘ of malfeasance, bribery or other corrupt practice or crime” etc., should be restricted to those enumerated offenses committed within the territorial and political jurisdiction of the state and cannot be extended to embrace such offenses committed in violation of the laws of other states or of the United States.</p> <p>3. Statutes—how affecting rights of citizenship construed. A statute which excludes a citizen from exercising rights of citizenship is to be strictly construed.</p>

<p>Foreclosure. Error to the Circuit Court of Fayette county; the Hon. Thomas M. Jett, Judge, presiding.</p>

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

<p>1. Sales—when custom competent. Held, that a local custom by which a local broker habitually settled disputes arising as to the grade and quality of lumber was competent.</p> <p>2. Sales—when previous course of dealmg competent. Held, that a previous course of dealing as to settlement of disputes was competent.</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>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.</p>

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

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

<p>Sales—when contract several as to various articles. If a number of different articles are sold, and delivered, but a part returned and credit given therefor and payment made upon the balance of the account, the contract is to be regarded as several as to each article and it is immaterial if the articles returned are defective so far as the right to recover for the balance retained is concerned.</p>

<p>1. Replevin—what not conclusive evidence of title. Held, that the fact that the name of the claimant was blown in bottles and that a particular manufacturer made and delivered such bottles to the claimant, did not conclusively show that the same were the property of such claimant or were ever in its possession.</p> <p>2. Personal property—what evidence of ownership. Marks and brands and letters on stock and other property are evidence tending to establish identity and ownership.</p> <p>3. Vendor and vendee—when possession of former will not prevail against true owner. A mere naked possession in a vendor will not hold against the true owner, and the latter may pursue his property and recover it from a purchaser without notice, when he has done nothing to estop him fom asserting his title.</p> <p>4. Bailments—effect where identical property is delivered to he restored in altered form. When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the title to the property is not changed; but when there is no obligation to restore the specific thing, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return and the title to the property is changed,-—it is a sale.</p> <p>5. Evidence—when as to custom incompetent. Seld, that evidence of a custom not observed by the party sought to be charged was not competent upon the question of title to personal property.</p>

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

<p>1. Evidence—effect given to scientific computations of physical forces. Accidents happen so instantaneously and unexpectedly, and slight changes in position and circumstances of the machinery and the unfortunate sufferer, so completely alter any given situation and introduce new factors into the problem, that the Court must consider scientific computations at the best as but weak substitutes for actual experience and the testimony of eyesight.</p> <p>2. 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>3. Master and servant—duty to warn upon change in appliances. If the master make a change of appliances and by so doing increase the hazard of the employe pursuing his work in his customary manner it is the duty of the master to notify such servant of the increased danger to which he is exposed, and such servant even though experienced in working about the class of machinery in question does not assume the risk of injury if the change and the result thereof was not so open and visible that he might by the exercise of ordinary care see it, know it, and appreciate the resulting danger.</p> <p>4. Master and servant—who not fellow-servants. An ordinary employe and a vice principal are not fellow-servants.</p> <p>5. Master and servant—when doctrine of fellow-servants does not apply. By invoking this doctrine the master cannot escape liability for a neglect to warn of increased danger resulting from a change by him of appliances or working conditions.</p> <p>6. Contributory negligence—where conditions changed by master. If a servant is injured while attempting to start machinery and such machinery might have been safely started, where the conditions in and about the machinery have been changed by the master without notifying the servant so as to increase his hazard if he employed his customary methods, it is a question of fact to be determined by the jury whether the increased danger was discoverable by the servant by the exercise of ordinary care.</p> <p>7. Appeals and errors—when sustaining objection to general question will not reverse. The action of the court in sustaining an objection to a general question will not reverse where it was plain that there was no intention during the trial to prevent proof specifically as to the matters sought to be elicited by such general question.</p> <p>8. Appeals and errors—when strilcing out irresponsive answer will not reverse. Seld, that striking out of a portion of an, answer given by a witness as irresponsive was at most harmless error which will not reverse.</p> <p>9. Instructions—when as to preponderance of evidence will not reverse. Seld, that an instruction was not error where it implied that the number of witnesses on each side of any proposition involved in the case was one element to be considered by the jury, and other things being equal, a controlling element.</p> <p>10. Instructions—when useless, will not reverse. An instruction not inaccurate and not misleading, but useless and unenlightening will not reverse.</p> <p>11. Instructions—when withdrawing and manner of withdrawal will not reverse. To give an instruction and then to withdraw it will not reverse if the withdrawal was the.proper course to pursue, and to withdraw an instruction by re-reading it and telling the jury not to follow it is not calculated to produce harm, but on the other hand is likely to impress on the minds of the jury that the statement of law contained in the instruction at first given was erroneous.</p> <p>12. Trial—when refusal to submit special findings not error. Seld, that there was no abuse of discretion by the trial judge in refusing to submit certain specific questions on the evidence to the jury for special findings and substituting other special findings on his own motion.</p>

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

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

<p>1. Instructions—when containing abstract proposition of law will not reverse. If an instruction correctly states an abstract proposition of law applicable to the case it will not reverse unless it appears that it was calculated to mislead.</p> <p>2. Master and servant—how question as to safe place determined. Held, that under the evidence it was for the jury to determine whether the master had fulfilled his duty, which duty the master could not delegate, to use ordinary care to furnish a reasonably safe place for the plaintiff's intestate to work.</p> <p>3. Master and servant—respective duties of. With respect to the place where a servant is required to work the duty of the master is that of inspection, the duty of the servant is that of observation.</p>

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

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

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding.</p>

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

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Anthony J. Clarity, Judge, presiding.</p>

<p>Measure op damages—in action for injury to real property. In such a ease the measure of damages is the difference in value of the property before the proposed construction and what it was afterwards.</p>

<p>1. Bonds—effect given to statutory. A statutory bond is given the effect which, in reason, must have been intended by the statute.</p> <p>2. Bonds—liability of sureties upon, given on appeal from refusal of discharge under insolvent debtors act. Held, under the statutory bond in this, case, that upon the dismissal of the appeal in question or upon the affirmance of the judgment, the debtor should either pay the amount of the original judgment rendered against her or surrender her body and if she does neither and if after notice the sureties are unable to produce the body of such debtor, such sureties are liable to pay to the obligees the amount of said original judgment within the limit of the penalty of the bon'd.</p>

<p>Error to the Municipal Court of CMcago; the Hon. Hosea W. Wells. Judge, presiding.</p>

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

<p>Forcible entry and detainer—when right to possession established as against vendee failing to perform. A conveyance by the vendor to the plaintiff coupled with an assignment of the contract of purchase which was breached sufficiently establishes the right to possession.</p>

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

<p>Appeals and errors—when conduct of counsel not preserved for review. If tke conduct complained of as prejudicial does not appear in the abstract it will not be considered on review.</p>

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

<p>1. Appeals and errors—what notice of redocketing essential. Notice of redocketing after remandment should be personal.</p> <p>2. Appeals and errors—what part of record without incorporation in hill of exceptions. A notice to redocket after remandment is a necessary process to confer jurisdiction of the parties and it is therefore a part of the record without incorporation in a bill of exceptions.</p>

<p>1. Trial'—effect of opening statement. “A party is not confined in the introduction of evidence to the statement made in the opening.”</p> <p>C Contracts—when past services constitute sufficient consideration. If such services were rendered at the request of the party sought to he charged they constitute a sufficient consideration.</p>

<p>Principal and agent—when latter not personally hound. Where an agent discloses the fact of his agency or where the other party knows at the time that he is acting as such agent the latter will not be liable unless he binds himself to become responsible.</p>

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

<p>Action in ease for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.</p>

<p>1. Notices—how sufficiency of, to city, of personal injury, determined. The sufficiency of a notice required by a city is a question of law for the court and its sufficiency must be determined from the notice itself.</p> <p>2. Notices—what exactitude required of, to city, of personal injury. Notice required by the statute need not be so full and exact as is required of a declaration, yet in determining the sufficiency of a notice the • court must take into account all its essentials.</p> <p>3. Notices—when, to city, of personal injury, not sufficient. Held, that a notice which designated the place of an accident as having occurred "at or near” a certain specified street intersection is not sufficiently specific and does not comply with the statute.</p>

<p>Evidence—when pleading not admissible as an admission. An original declaration not sworn to and prepared by an attorney under a misapprehension of the facts is not competent against a plaintiff to overthrow an amended declaration and the evidence introduced in support thereof.</p>

<p>1. Res judicata—when status of stockholder fixed. If upon a proceeding to wind up an insolvent corporation an assessment is made and the party against whom such assessment is made is determined to have been a stockholder, such a question, after the exhaustion of the rights of review, is res judicata in a subsequent proceeding predicated upon a further assessment.</p> <p>'2. Appeals and errors—when findings of master not disturbed. Findings of fact by a master approved by the court will not be set aside on review unless clearly and manifestly against the weight of the facts.</p> <p>3. Corporations-—effect of stock subscriptions. The subscriptions to the capital stock of a corporation are a trust fund for the benefit of creditors and no valid arrangement can be made by which a subscriber can be released therefrom, and the stock liability continues until discharged by payment as against each subsequent assignee.</p> <p>4. Corporations-—what does not discharge stock liability. Merely returning a stock certificate does not discharge stock liability.</p> <p>5. Corporations—how insolvency of stockholders may be established. In an action to dissolve an insolvent corporation, the insolvency of those owing a stock liability may be established prima facie by a return nulla bona for the purpose of determining the propriety of additional assessments against solvent subscribers.</p>

<p>Negligence—when servant injured tvhile attempting act of rescue cannot recover. If a servant be in a position of peril another servant of the same master acting upon no order of his master, cannot recover if injured, nor can his personal representatives if he lose his life, in the absence of any showing of negligence upon the part of the master after he entered upon the work of rescue.</p>

<p>Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Deceit—what not essential to recover where loan made through fraudulent representations of agent. If a party make a loan relying upon representations made by his agent, he may recover of such agent, if such representations were false and fraudulent, without first enforcing the security given upon the making of the loan.</p> <p>2. Statute op Limitations—effect of concealment. If the cause of action be fraudulently concealed from the plaintiff the statute does not begin to run until the existence of the cause of action is discovered by the plaintiff.</p>

<p>Judgment by confession. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.</p>

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

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

<p>1. Appeals and errors—what does not estop right of review. By complying with an order entered in a mandamus proceeding a city is not estopped to assert its right to appeal or sue out a writ of error.</p> <p>2. Appeals" and errors—effect of plea of release of errors. A plea of release of errors admits that there are errors in the record and proceedings, but such a plea, if adjudged insufficient, does not deprive the pleader of the right to join in error.</p> <p>3. Appeals and errors—when plea to replication filed on appeal carried hack. If a plea of release of errors filed on appeal is defective a demurrer filed to a replication interposed to such a plea will be carried back to such plea.</p> <p>4. Municipal corporations—authority of officers exercising powers conferred hy ordinance. An officer exercising powers conferred by ordinance can have no other or greater powers than those prescribed in the ordinance creating the office and prescribing the duties of the incumbent.</p> <p>5. Municipal corporations—what not within powers of corporation counsel. Held, that the corporation counsel of the city of Chicago has only such powers as are conferred upon him by ordinance and that he has no power to waive and release errors in litigation which has previously passed into judgment.</p>

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

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

<p>1. Trover—what essential to maintain action. In order to maintain an action of trover the plaintiff has the burden to prove three things: first, its title to the property in question; second, its right to the immediate possession thereof, and, third, the wrongful withholding of such possession.</p> <p>2. Trover—what essential to maintenance against warehousemen. In order successfully to maintain trover against a warehouseman a tender to such warehouseman of his proper and legitimate charges or else a payment thereof must be shown.</p> <p>3. Warehousemen—what defense to action of trover against. If the property stored has been taken from the possession of the warehouseman pursuant to a writ duly issued in an attachment suit in which the warehouseman was joined as garnishee such warehouseman cannot be held liable for a conversion at the instance of the owner or of one who has loaned money upon the faith of the warehouse receipts, if such warehouseman as garnishee has set up by answer all the facts in its possession.</p> <p>4. Warehousemen-—nature of warehouse receipts. Warehouse receipts are not negotiable in a legal sense so as to enable the person holding them to transfer a greater right or title to the property mentioned in them than he himself had.</p> <p>5. Warehousemen—what essential to protect assignee of receipts. If the assignee of warehouse receipts would protect himself as against the world he must give prompt notice of the assignment thereof to him and failure to do so, though it does not destroy his right, exposes him to the danger of assignment to another or to the rights of an attaching creditor of the assignor.</p>

<p>1. Passenger and carrier—what does not preclude right of recovery for personal injuries. A carrier may not negligently place a passenger in a situation where the passenger is bound to choose between two courses at her peril and then interpose the defense that the act of the passenger was the intervening cause of the injury.</p> <p>2. Instructions—when summing up the facts constituting negligence not erroneous. Held, that the instruction in question in this cause was not erroneous where reference to certain facts was made—the jury, however, being required before rendering a verdict in favor of the plaintiff to find that the plaintiff "was injured in manner and form as charged in her statement of claim.”</p> <p>3. Instructions—when upon damages in personal injury case erroneous. An instruction is erroneous which authorizes a recovery of damages for pain in the future upon the belief by the' jury in a mere possibility that future pain and suffering may be caused by the injury. Held, however, that the instruction in this case was not likely to have been so understood by the jury and that no prejudice could reasonably be said to have resulted therefrom.</p> <p>4. Municipal Court—what essential to justify reversal of judgment of. No order or judgment of the Municipal Court will be reversed on review unless the reviewing court shall be satisfied from the record that such order or judgment is contrary to the law and the evidence, or that such order pr judgment resulted from substantial errors of the Municipal Court directly affecting the matters at issue between the parties.</p> <p>5. Evidence—when system of receiving reports of accidents not competent. If the defendant had notice of an accident the day after its occurrence it is not error to refuse to permit it to show its system of receiving reports from its employes and the fact that it had received no report of the accident in question.</p>

<p>Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Akthub H. Chetlain, Judge,, presiding.</p>

<p>Accord and satisfaction-—when settlement made with joint creditor binding. If an honest dispute exists a settlement made by the debtor with one partner is binding upon all partners regardless of lack of knowledge and of participation in the settlement by the other partner or partners.</p>

<p>1. Contracts—when arehiteet’s certificate not essential to recovery. Where the refusal of the owner to pay was based on other ground than the failure to produce a written certificate the certificate is deemed to have been waived.</p> <p>2. Contracts—when architect’s certificate waived. If issuance of the certificate was refused because the owner directed its non-issuance it will be deemed to have been waived as a prerequisite to recovery against such owner.</p> <p>3. Appeals and errors—when findings by master not disturbed. The findings of fact by a master approved by the court will not be disturbed on appeal unless clear mistake or fraud is shown.</p>

<p>1. Instructions—when upon damages in personal injury action slightly inaccurate. An instruction upon this subject instead of allowing the jury to predicate their estimate upon the “facts and circumstances in proof” may better limit the jury “to the consideration of the facts and circumstances attending the injury.”</p> <p>2. Verdicts—when not excessive. A verdict reduced by remittitur from $2,000 to $1,250 is not excessive where it appears that as a result of the accident there was a stiffening of the right hip joint which had not passed away even at the time of the trial, and that the plaintiff suffered and continued to suffer considerable pain.</p>

<p>1. Appeals and errors—effect of imperfect abstract. The Appellate Court may affirm if the abstract filed on review is incomplete, imperfect and inadequate.</p> <p>2. Fraternal benefit societies-—when membership exists. If the arrearages of dues have been made good prior to the death of a member and it appears that the local lodge of which the deceased was a member considered him to be a member in good standing at and before his decease and so treated him, recovery by his beneficiary upon the certificate issued to him may be had.</p> <p>3. Fraternal benefit societies—-how forfeiture or suspension may be waived. A local lodge has power to waive the by-laws of the order and a forfeiture or suspension resulting from failure promptly to pay dues and assessments.</p>

<p>1. Wills—when aei giving jurisdiction to Probate Court to construe does not apply. This act has no application to a case where the jurisdiction of the circuit court has attached prior to its going into effect.</p> <p>2. Wills—what intention of testator governs. The rule is inflexible that the object of the construction of wills is to ascertain the intention expressed by the testator and the intention sought is not that which by inference may be presumed to have existed in the mind of the testator but that which by the words used in the will he has expressed.</p> <p>3. Wills—the word “children” construed. A grandchild of a person named in a will to whose children and issue bequest is made does not take where the parent of such grandchild was dead at the time of the making of the will, especially where such grandchild was specially provided for by the terms of the will.</p>

<p>Evidence—when boolcs of account competent to refresh recollection. Books of account regularly kept by the plaintiff in his own handwriting in the ordinary course of business if testified to as true and correct and as containing entries contemporaneous with the facts sought to be established and known to be correct when made may be employed for the purpose of refreshing recollection.</p>

<p>Common carriers—effect of failure to produce contract. If a written contract is shown to have been entered into between the shipper and the carrier the shipper cannot maintain an action against the carrier with respect to any matter touching the transaction if he fails to introduce the contract in evidence.</p>

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

<p>Partnership—when not established. Held, under the evidence, that the partnership alleged in this ease was not established.</p>

<p>1. Municipal court—when bill of exceptions not stricken. If the bill of exceptions and stenographic transcript is tendered in apt time and is subsequently signed by the Court and ordered filed nunc pro tunc as of the date when it was tendered the act is substantially complied with.</p> <p>2. Contracts—when conversations prior to execution incompetent. Where the parties have deliberately put their engagements in writing in such terms as to import a legal obligation without uncertainty it is conclusively presumed that the whole engagement was reduced to writing.</p> <p>3. Contracts—what not representation authorising rescission. A mere promise to do something in the future is not a representation of fact such as will permit the cancellation of a contract.</p>

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

<p>Common carriers—when liability ceases. If a carrier delivers the property at the point of destination to another carrier at the direction of the consignee its liability is terminated.</p>

<p>1. Contracts—when established. Held, that the telegrams set forth in this opinion constituted a contract between the parties for the sale and delivery of eggs, and that the direction of the vendee to the vendor to hold such eggs at the point of delivery for purposes of inspection did not operate to affect the binding character of the contract.</p> <p>2. Contracts—when customs enter into. Customs and usages of the trade enter into a contract and form a part thereof and the contract should be construed with relation to such customs and usages.</p> <p>3. Sales—right of inspection. A purchaser of goods having no opportunity for inspection at the time of purchase must be given a reasonable opportunity for inspection before acceptance.</p>

<p>1. Landlord and tenant—lease providing for payment of increased insurance rates construed. Held, that by the terms of the covenant that the parties contemplated insurance only of the building and not insurance upon rents.</p> <p>2. Contracts—how to he construed. The words and phrases of an instrument are to be given their plain and ordinary meaning and sense with respect to the particular subject-matter contemplated by the contract unless the context shows that the parties used the words in question in some peculiar and unusual sense.</p>

<p>Bill of interpleader. Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.</p>

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

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