Volume 175 — Illinois Appellate Court Reports

<p>Error to the Circuit Court of La Salle county; the Hon. Edsab Eldkedge, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. G. W. Patton, Judge, presiding.</p> <p>Oertiorari denied by Supreme Court (making opinion final).</p>

<p>Action on the case. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Prosecution for assault with intent to kill. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscab E. Heard, Judge, presiding.</p>

<p>1. Appeals and errors—when freehold involved. A freehold is involved on a bill to restrain a city from building a sidewalk on a strip of certain premises alleged to belong to complainant.</p> <p>2. Appeals and errors-—jurisdiction, though freehold involved. Though a freehold is involved, the appellate court must take jurisdiction to the extent of determining whether the bill justifies a preliminary injunction on an appeal from an interlocutory order granting an injunction restraining a city from building a sidewalk on a strip of land alleged to belong to the complainant, since by statute, jurisdiction of an appeal from such an order is granted to such court only.</p> <p>3. Chancery—when hill does not exclusively rely on estoppel. A bill does not rely exclusively on equitable estoppel, where in addition to alleging exclusive ownership for twenty-eight years,' it alleges that according to the measurements in the recorded plat of the premises, on a strip of which a city is attempting to place a sidewalk, and the deed thereof, the complainant is entitled to the strip in question.</p> <p>4. Injunction—when preliminary properly continued. Equity has jurisdiction, and a preliminary injunction is properly retained until the hearing, where the bill avers that complainant is the owner of a strip of land on which defendant is constructing a sidewalk, that he has exclusively possessed it for over twenty-eight years and with his predecessors for over forty years, and that the defendant never possessed it or acquired any right therein, but undertook to seize it without.</p>

<p>Prosecution for violation of Anti-Saloon Territory Act. Appeal from the County Court of Warren county; the Hon. L. E. Murphy, Judge, presiding.</p>

<p>Mandamus. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Cabnes, Judge, presiding.</p>

<p>1. Pleading—withdrawal of plea. A motion for leave to withdraw the general issue, and to demur to the declaration, is tardily made four years after issues are joined.</p> <p>2. Animals—duty to restrain. Where the owner of a domestic animal knows that it is ferocious and liable to attack and bite mankind, it is his duty to restrain the animal, without waiting till it had actually attacked some one.</p> <p>3. Animals—knowledge of ferocious character. A finding that the owner of a dog knew he was ferocious and liable to bite mankind, is supported by evidence which tends to show that the owner had made remarks admitting the dog to be ferocious, that the dog was kept chained, and that he would bark and jump at people who passed the shop where he was chained at night.</p> <p>4. Appeals and errors—when exclusion of evidence harmless. In an action for damages from being bitten by a dog, the exclusion of testimony offered by the owner as to what the dog’s disposition had been in a different locality, if wrongful, is harmless error, where the owner’s uncontradicted testimony covered all points offered to be proven by said witnesses.</p> <p>5. Witnesses—withdrawal of attorney after testifying. Where counsel testifies, his failure to withdraw from the case does not affect his competency to testify, but only his credibility.</p>

<p>1. Compbomise and settlement—evidence. A decree enforcing a supposed agreement between a creditor and a creditors’ committee of a corporation, to accept stock to par value of the claim, or fifty per cent, in cash, is not supported by the proof where such creditor did not accept the terms offered to the corporation’s creditors by the creditors’ committee, to turn over his claim and to accept cash or stock therefor, but proposed a reservation therein which was not accepted.</p> <p>2. Infants—creditor’s suit. On a creditor’s suit to pursue assets of a debtor corporation into the hands of a transferee corporation, complainant is not entitled to any greater rights on the theory that he was a minor at the time of the creation of the debt, and that his guardians made the loan and were not authorized to consent to any settlement thereof, where the bill does not set up such facts or claim any relief on that ground, and the facts tend to show that the guardians are the real parties complainant, though the suit is in the ward’s name.</p> <p>3. Cbeditob’s suits—when charges of fraud in transfer of corporation’s assets not supported. Charges in a creditor’s bill that the assets of one corporation were transferred to another, to hinder, delay and defraud creditors, are not supported where it appears that the creditors, and not the officers, planned the transfer to pay debts, the transfer was solely for the equal benefit of all creditors, nothing was reserved for the stockholders or officers, the corporation was to receive nothing but the liquidation of its debts, and the creditors were to receive for their claims either stock of the new corporation to their full amount or fifty per cent, in cash at their election.</p> <p>4. Corporations—what transaction not reorganization of. Where the officers and stockholders of a corporation turn over its assets to a creditors’ committee, in liquidation of its debts, and the committee with the consent of all the creditors, except one, turn over the assets to a new corporation, under an agreement whereby the creditors are to receive capital stock equal to the amount of their claims, or fifty per cent, in cash at their election, the transaction' is not the reorganization of the old corporation, but is the organization of an independent corporation which is not liable for the debts of the old, except as expressly provided for.</p> <p>5. Corporations—when transfer of assets not constructively fraudulent. A transaction whereby the officers and stockholders of a corporation transferred all of its assets to a creditor’s committee, and such committee with the consent of all except one of the creditors transferred such assets to a new corporation, in return for capital stock or a certain per cent, of each creditor’s claim in cash, is not constructively fraudulent, because the book value of the corporation’s assets exceeded its liabilities, where it is evident that the real value thereof was much less.</p> <p>6. Corporations—creditor's suit. Where a creditors’ agreement, to transfer the assets of a debtor corporation to a new corporation and take the stock thereof in settlement of their claims, has been carried out except as to one creditor who refuses to agree, and the stock to which he is entitled under the agreement has been issued in his name and delivered to a trustee to be transferred to the creditor when it is received in full payment, the stock so held is the property of the debtor corporation, and a creditor’s suit is properly brought by the assignee of a judgment obtained by the nonconsenting creditor to subject it to execution thereon.</p> <p>7. Costs—who liable therefor. On creditors’ bill against a corporation, against which judgment was recovered, and a corporation to which its assets were transferred, and against officers and stockholders, only the corporation against which the judgment was recovered should be held liable for costs, where the transaction was not fraudulent, and the new corporation has no assets belonging to the old corporation, but where stock of the new corporation in the hands of a trustee belongs to the old corporation and is subjected.</p> <p>8. Appeals and errors—Appellate Court Rule 16 construed. Appellate Court Rule 16 requiring the index to an abstract to describe each document by its character, parties, date, etc., is violated where the index gives only the number of each exhibit and its page in the abstract.</p>

<p>1. Dkamshops—evidence. Findings of violations of the Dramshop Act and the Anti-Saloon Act by a club, its officers, agents and servants, are warranted where the evidence tends to show direct sales of liquor in anti-saloon territory, and that though the club purported to be organized for social purposes, it possessed none of the attributes thereof, but that any one, by paying a small fee for locker keys, and a preliminary order of liquor, could become a member, and that the steward would exchange bottles which the members took from their lockers for bottles kept on ice, and that the members drank the liquor on the premises.</p> <p>2. Instructions—when correctly refused. Refusal of an instruction which seeks to discredit testimony of detectives is correct.</p> <p>3. Dramshops—statute construed. The act relating to anti-saloon territory, condemns the taking of orders in anti-saloon territory for the delivery of liquor, whether the one taking the order is. acting for the buyer or for the wholesale house.</p> <p>4. Dramshops—instructions. On prosecution for sales of liquor in anti-saloon territory, instructions are correctly refused which seek to make the defendant’s guilt or innocence turn, on whether in taking a certain order, he was the agent of the buyer or of a brewery, where there was sufficient evidence of sales to other persons to authorize a conviction which the instruction ignored.</p> <p>5. Criminal law—instructions. Refusal of a general instruction not applied to the evidence is not error.</p> <p>6. Criminal law—instructions. Refusal of an argumentative instruction which ignores partly the evidence tending to show guilt, is proper.</p>

<p>Bill to construe will. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Wobthington, Judge, presiding.</p>

<p>Bill in equity. Error to the Circuit Court of Henry county; the Hon. Frank: D. Ramsay, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.</p>

<p>1. Appeals and errors—presumptions on omission of fact from hill of exceptions. Where it is uncertain whether a conversation regarding alleged unpaid rent was before or after a payment of subsequently accrued rent, and the date of the check paying the subsequent rent was known to the landlord and the trial court, and omitted from the bill of exceptions, it will be assumed on appeal, in support of an instruction to the effect that accepting payment of rent without comment raises a presumption that prior rent has been paid, that the conversation was after the payment of the subsequent rent.</p> <p>2. Landlord and tenant—presumption as to payment of rent. Where a husband leased premises, payments by his widow of rent for three half-year terms without any claim being made that there was any unpaid rent, will raise a presumption that rent for six preceding half-year terms, when the husband was alive, was paid by him.</p> <p>3. Landlord and tenant—evidence of payment of rent. A landlord accepted rent for three half-year terms from the widow of a lessor, without any claim that prior rent for six half-year terms had not been paid by her husband, but testified that the prior rent was not paid and no one testified it was paid. It was shown that deceased paid the rent to the landlord or to his brother by check, and that the check was charged to the account of the deceased on the books of a bank and credited to the landlord. Those books were in control of the landlord and were not produced, the brother was not called as a witness, and a claim for the rent was not filed against the husband’s estate. Held, a verdict for the widow should be sustained.</p>

<p>1. Cabbiers—pleading. An allegation in a declaration that the defendant caused the car to be started without notice to the plaintiff, implies the averment that the car had stopped before she alighted.</p> <p>2. Carriers—evidence. In a suit to recover for personal injuries sustained by a fall while getting off a street car, a verdict for the plaintiff will not be disturbed, where her testimony shows that the car started just as she was getting off, and where she was contradicted by only one witness who stated that she did not wait for the car to stop.</p> <p>3. Evidence—admissions. In a personal injury suit, admissions as to how the injury occurred, made at the time of the injury and at the hospital, should not he excluded from the evidence.</p> <p>4. Appeals and erboks—harmless error. Where certain admis-, sions are wrongfully excluded from the evidence, it is not reversible error unless it be shown what such admissions were, and that they were material.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>1. Fbatid—evidence. Defendant is not shown to have been a party to a conspiracy to defraud, concerning the value and location of land, where he took no part in the making of the contract involved, and made no statements concerning the location and quality of the land, and was not present when anything was said or done after the fraudulent contract was signed and the price paid, though he was informed that the plaintiff had “signed up” and took the money from his partner, and sent a draft therefor to the person who held the title, and later urged the plaintiff not to repudiate the' contract because of alleged insufficiency of title “or we will make you trouble.”</p> <p>2. Partnership—liability for copartner's fraud. An innocent partner is liable for fraud of his copartner, committed in the course of partnership business, though he has no knowledge thereof.</p> <p>3. Partnership—when liable for partner's fraud. Where partners are real estate brokers, fraud practiced on a purchaser by .one partner, as to the location and quality of land, is practiced in the transaction of partnership business, and the copartner is liable though innocent of fraud and deceit.</p> <p>4. Witnesses—who not competent as to conversations of deceased partner. Under R. S. c. 51, § 4, on an action against a surviving partner for fraud and deceit of his copartner, the plaintiffs are not competent witnesses as to conversations of the deceased, when the surviving partner was absent.</p>

<p>1. Appeals and errors—record. The record of a former case, between the same parties, can only be embodied in the record by being pleaded or offered in evidence.</p> <p>2. Statute oe limitations—pendency of aotion. Where action was brought against a city for personal injuries caused by alleged defects iú a sidewalk, but the declaration did not state a cause of action, and an amended declaration was filed after the expiration of the time allowed by the statute of limitations, the time did not expire during the pending of such suit, within the meaning of the Limitation Act, § 25, allowing suit within one year in certain cases where the statute runs during pending of suit.</p> <p>3. Statute oe limitations—limitation act § 25, construed. The Limitation Act, § 25, providing that in certain eases where suit is brought within the required time, and the time expires during pendency thereof, the plaintiff on reversal, nonsuit, etc., may commence a new action within one year thereafter, does not mean that a new action may be commenced within one year of judgment, etc., if the original declaration did not state a cause of action, but it applies to defects by which a party is defeated as stated therein.</p>

<p>1. Injunctions—act punishable as crime. Equity has jurisdiction to enjoin a public nuisance, though the act constituting the nuisance is also a crime.</p> <p>2. Dramshops—public nuisance. Conducting a saloon without a license is a public nuisance under section 7 of the Dramshop Act.</p> <p>3. Injunction—to abate unlicensed saloon. An action will lie in the name of the public, to enjoin a person from keeping an unlicensed saloon opposite a public park, where drunken men and dissolute women are accustomed to go from the saloon into the park and interfere with the enjoyment thereof.</p>

<p>1. Mines and miners—pleading. Common law counts in a declaration in an action for personal injuries sustained in a mine, negative the assumption of risk where they aver that plaintiff did not know of the danger, and had not the same means of knowing as the owner, defendant, who did know thereof, or by the exercise of ordinary care should have known.</p> <p>2. Mines and miners—evidence. Where the evidence tends to show that the roof of a certain room in a mine was in a dangerous condition, and that a mule driver, while unfastening the harness of the rear mule, which had been caught on a projecting rock in such room which had become very narrow at that point, was kicked by the lead mule, the finding of the jury that the dangerous condition of the roof was the proximate cause of the injury and that there was no assumption of risk, will not be disturbed.</p> <p>3. Mines and miners—variance. Where it is averred in the declaration that plaintiff, an employee, did not know the dangerous condition of the mine, but that the owner did, or should have known, etc., and the proof shows that plaintiff had spoken to the owner in regard to such condition and resumed work on the promise that the same would remedied, ^uch lack of entire harmony between averment and proof, will not be sufficient to reverse a meritorious judgment.</p> <p>4. Instructions—abstract. It is not error to give an instruction, which is merely a general statement of law, where the same is not misleading.</p> <p>5. Instruction—must be limited to the counts to which it applies. An instruction which is general and not limited to the counts to which it applies is properly refused.</p> <p>6. Damages—when not excessive. A verdict of $6,000 for personal injuries sustained by a mule driver in a mine, is not excessive where it appears that plaintiff was in a hospital for a long time,, that he had lost the use of one eye, that he had suffered and still suffers constant pain in his head, and that he was seriously injured and under medical treatment for some time.</p>

<p>1. Railboads—duty to repair fence. Where a fence along a railroad’s right of way has been found with the wires down at the place where skaters habitually leave the right of way to proceed to a frozen pond, and has been repaired by employees on numerous occasions, the company must know the damage is caused by the skaters, and to relieve itself from liability, as to animals straying on the track, it must either put the fence in repair each evening after the skating is over, or else prevent the damage to the fence by prosecutions, or by some other effective methods.</p> <p>2. Railboads'—evidence as to cause of injury to animals. Where there is a hole in a railroad’s right of way fence, and there are tracks of three horses on the snow on the railroad track, and one horse is found dead on the track, another uninjured near the track, and a third horse is found in the owner’s pasture with a broken leg, and is killed by order of a section foreman, a jury is warranted in finding that the horse with the broken leg was injured by the company, and was not injured by falling on a frozen pond in the pasture.</p> <p>3. Railboads—when liable for fire on right of way. Evidence was conflicting as to where a fire started and as to its cause, but the fire when first seen was burning on a railroad’s right of way, spreading to an adjoining pasture. There was dry grass and weeds on the right of way that had not been burned over that fall. A train of another company had passed over other tracks a short time before, but the wind was not blowing from that direction, and no person but a section hand of the defendant had passed along the track. Held, a verdict for the owner of the pasture should be sustained.</p> <p>4. Railboads—when liable for fire on right of way. Evidence was conflicting as to the origin of a fire that when first seen was burning on a railroad’s right of way, spreading to an adjoining pasture. The engine supposed to be responsible was equipped with the most approved spark arrestors. A heavy freight train passed a few minutes before the fire was seen and the engine was working hard. The right of way was grown up with grass and weeds and was burning that afternoon, and there was other evidence that the right of way had been burned over a few days before. Held, a verdict for the owner of the pasture should he sustained.</p> <p>5. Damages—excessive. Six dollars damages is not excessive where grass on two acres of pasture land is destroyed by a fire spreading from a railroad’s right of way.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Fbank D. Ramsay, Judge, presiding.</p>

<p>Action in case for death by wrongful act. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbatjgh, Judge, presiding.</p>

<p>1. Costs—effect of tender. Where defendant tenders costs and a certain amount as damages which is refused and the jury finds such tender sufficient, subsequent court costs will be assessed against the defendant.</p> <p>2. Set-off—in action before justice. In an action before a justice to recover the price of grain sold and delivered, an unliquidated claim for hauling building materials may be set off under R. S. ch. 79, Sec. 53.</p> <p>3. Landlord and tenant—construction of lease. The construction of clauses in a lease is for the court.</p> <p>4. Landlord and tenant—construction of lease. Clauses in a lease, made six months before the beginning of the term, to the effect that the lessee was to haul all material needed for repairs, improvements, or new fences, to build all fences and keep the same in repairs and to haul all building material, free of charge for the lessor, will be construed as not requiring the lessee to haul material for new buildings to be erected after the beginning of the term.</p> <p>5. Alteration of instruments—for jury to determine when made. Where the evidence is conflicting as to whether an interlineation in a lease was made before or after it was signed by the lessee, the question is for the jury.</p> <p>6. Set-off—matter arising after suit. An indebtedness arising subsequent to the bringing of a suit cannot be offered to reduce a set-off claim.</p>

<p>1. Administration of estates—claims. A verdict oí $1,000 for services rendered in taking care of intestate for a period of about six years is warranted by the evidence which shows that deceased was. afflicted with bowel and kidney trouble which resulted in frequent involuntary passages, that he had an injured leg which required daily dressing and that he had promised and told others that he would will claimant his property valued at about $1,000, as compensation for taking care of him.</p> <p>2. Directing verdict—when motion waived. A motion to direct a verdict is waived by the subsequent introduction of evidence.</p> <p>3. Directing verdict—when improper. It is not error to refuse to direct a verdict for defendant where a certain amount is admitted to be due.</p> <p>4. Instructions—reference to statute of limitations. A party cannot complain of an instruction given in behalf of his adversary, because it ignores the statute of limitations, where instructions offered by him, also make no reference thereto.</p> <p>5. Instructions—when no complaint can he made of. A party cannot complain of an instruction given for his adversary which is like one given at his own request.</p> <p>6. Statute of limitations—cannot he raised for first time in appellate court. A question as to the statute of limitations cannot be raised for the first time in the appellate court.</p>

<p>1. Assault and batteet—gestures no justification for. Malignant and taunting gestures are not a justification for assault or battery.</p> <p>2. Assault—abusive words do not justify. Abusive words do not justify an assault.</p> <p>3. Assault and batteet—when defendant justified in striking first bloio. Where plaintiff’s language and demonstrations would have lead a reasonably prudent person, situated as defendant was, to believe that plaintiff' was about to strike him, defendant was justified in striking the first blow. '</p> <p>4. Assault and batteet-—burden to show assault in self-defense. In an action for assault and battery, on an issue taken on replication de injuria to a plea of son assault demesne, the burden is upon defendant to prove that the assault was made in necessary self-defense, and that he used no more force than necessary.</p> <p>5. Assault and batteet—when plea son assault demesne not established. In an action for assault and battery, where the undisputed evidence shows that defendant deliberately turned around after the first encounter and assaulted and beat plaintiff, the plea of son assault demesne is not established and defendant is liable.</p> <p>6. Assault and batteet—appeal and error. On reversal and remand of a finding for defendant in an action for assault and battery, the question as whether the damages should be nominal or compensatory will not be passed upon, though the evidence shows that plaintiff was injured.</p> <p>7. Assault and battery—evidence as to general reputation of parties. Where the characters of the parties to an action for assault and battery are not involved, evidence as to their general reputation as peaceable citizens is not admissible.</p> <p>8. Assault and battery—instructions. An instruction that if defendant assaulted plaintiff in the reasonable, necessary defense of his own person, after having been first assaulted by plaintiff, and that he used no more force than necessary, etc., the jury should find for defendant, is improperly submitted, where there is no evidence, that defendant was first assaulted, that defendant struck the plaintiff in self-defense or that he used no more force than necessary for such defense.</p>

<p>1. Injunctions—effect of amendment to hill. An interlocutory injunction may be rendered ineffective by an amendment to the bill unless the amendment is filed after leave of court and without prejudice to the injunction.</p> <p>2. Injunctions—effect of amendment to hill. An interlocutory injunction is not affected by amendments to the bill though no order was obtained that they should be without prejudice to the injunction, where they do not change the allegations of the bill except to enlarge and strengthen them.</p> <p>3. Injunctions—issuance without notice. An affidavit accompanying a bill praying for an interlocutory injunction without notice must, where it alone is relied on, state facts showing that the complainant’s rights will be unduly prejudiced unless such injunction is issued.</p> <p>4. Injunctions—issuance without notice. Objection to the issuance of an interlocutory injunction without notice is waived when a motion to dissolve is made,. since such motion operates as a demurrer to the bill.</p> <p>5. Injunctions—issuance without notice. The averments of a hill sufficiently show that complainant’s rights will he unduly prejudiced if an injunction is not issued without notice, where its positive allegations, properly verified, state that an easement of way exists over defendant’s land, specify how the title came into the present owners and aver that the way is a way of necessity, that it was obstructed by the defendant and that defendant made threats of bodily injury and legal proceedings in case complainant should pass over the way again.</p> <p>6. Injunctions—when interlocutory should, not he dissolved. An interlocutory injunction restraining the obstruction of an easement of way granted without notice should not be dissolved because the bill in some instances states conclusions rather than facts, where it does charge that an easement of way had been used as a road adversely and continuously under claim of right by the complainant and predecessors in title for more than 20 years and that such use was recognized by the former successive owners.</p> <p>7. Injunctions—interference with way. Where the complainant asks for an injunction restraining the obstruction of an easement of way, there is a sufficient recognition of a change in the way by agreement with complainant’s predecessor in title where the bill charges that she and defendant placed and maintained gates along the changed way.</p> <p>8. Injunctions—interference with way. Where a bill for an injunction restraining the obstruction of an easement of way contains as an exhibit a will through which the complainant claims title from her father, there is a sufficient showing of title, though there is no allegation that the will has been admitted to probate, since if it is not, she is an heir and a tenant in common.</p> <p>9. Injunctions—pleading. Where the will, under which complainant who is praying for an injunction restraining the obstruction of an easement of way claims title charges the dominant estate with the support of the complainant’s mother, the bill shows that the condition has been complied with where it states that she and her mother have no other place of abode and will be confined as in a prison if the obstructions are maintained.</p>

<p>1. Judgments—form of final. A judgment dismissing plaintiff’s. suit on his election to stand by counts to which a demurrer was sustained, should, to make it a final judgment, contain a statement to the effect that the court considers “that the plaintiff take nothing by his writ and that the defendants go hence without day.”</p> <p>2. Appeals and ebbobs—when judgment may Be treated as final on appeal. Where a judgment is entered dismissing plaintiff’s suit on his election to stand by counts to which a demurrer was sustained but not in terms disposing of the counts or of the rights of the parties, it may be treated as final on appeal where the dismissal is assigned as error, but is not argued and is not harmful to the plaintiff.</p> <p>3. Contbacts—what void for lacle of mutuality. A written contract contemplated by an oral agreement is void for want of mutuality, where it fixes certain prices at which defendants shall sell certain articles to plaintiff and provides that he can order them if he wishes, but does not bind him to take any.</p>

<p>1. Husband and wife—hill for separate maintenance. A bill which in stating the ground for separate maintenance charges that defendant deserted complainant without cause and declared that he “would never live with her again,” and which is found by the decree to be true, sufficiently alleges that the wife was living • separate and apart from her husband and is sufficient to warrant a decree of separation if supported by evidence.</p> <p>2. Husband and wife—when articles of separation will not har suit for separate maintenance. On an issue in separate maintenance as to whether articles of separation were fairly obtained and fully performed, the agreement set forth the separation and provided for the payment of $100 and a note for $400, as a settlement and satisfaction for the wife and child’s separate maintenance until the maturity of the note. There was evidence that the agreement was drawn by a lawyer in the wife’s presence, who read and approved it. The wife testified that she did not understand that it was a separation, agreement, and the lawyer was not called as a witness. Evidence was conflicting whether the $100 had been paid until the separate maintenance suit was brought and there was evidence that the wife repudiated the agreement and sought to resume marital relations. Held, a decree awarding separate maintenance should be sustained.</p> <p>3. Husband and wife—alimony. A decree in separate maintenance may order that alimony be paid to the wife or to her solicitor for her.</p> <p>4. Husband and wife—custody of child. It is proper in separate maintenance, to award the custody of a young child to the mother, where the child had been living with its mother since the separation and was cared for by her and the father had refused to assist in its care and the mother had a home and the father did not have a home.</p>

<p>1. Pleading—proceeding to trial waives joinder of issues. The rule that it is error to proceed to the trial of a cause until an issue of fact is formed on each of several pleas filed does not apply where the parties voluntarily go to trial without formal issues being joined.</p> <p>2. Sales—when condition of warranty that machine must he used a certain time need not he complied with. Where a corn husking and shelling machine is bought under a contract of warranty requiring the buyer to use the machine for ten days, he, if the machine will not work at all, wastes the corn and inflicts serious injury on him, need not continue to run it for ten full days in order to have the benefit of the warranty.</p> <p>3. Sales—unavailing effort of seller to make machine meet a warranty waives the giving of notice of defects. Whether a notice to the seller of defects in a warranted machine is all that the contract of sale requires is immaterial when the seller had made an unavailing effort to make the machine work properly.</p> <p>4. Sales—when provision of contract that seller give notice of return of defective warranted machine is waived. A contract of sale of a warranted machine provided that if the machine was defective, the buyer should give notice that he had returned it to the place where he had received it. A notice was written by the agent of the seller who sold the machine at the place where the machine was originally delivered that it had been returned and also making a certain counter proposition which was rejected, but not by reason of the insufficient notice of return. The agent’s control of the agency had expired but he was still in the employ of the seller. Held, the seller was bound to know that the machine had been returned to the place where it was received, and the insufficient notice of return did not prevent the buyer abandoning the contract.</p> <p>5. Sales—when buyer of warranted machine may abandon contract of sale. Where a contract of sale of a warranted machine provides that the seller shall give it a trial and then shall give notice that it is returned as defective to the place where it was received, if the machine does not perform the duty for which it was sold and bought and the seller, after being notified, tries to make it work and fails and the machine has been placed where the buyer received it and he offers to put it on board cars one mile away from the seller, which offer is refused, the buyer has a right to abandon the contract and to have notes given for the purchase price returned.</p> <p>6. Sales—when use of defective machine does not render buyer liable. Where the seller of a warranted corn husking and shredding machine tries to make it work and fails, and subsequently sends men and a box of fixtures to repair it at a time when corn was not ready for husking and shredding, an unavailing trial for a short time by the buyer of the machine when that time arrives and the sheltering the machine from the weather will not prevent the buyer abandoning the contract of sale.</p> <p>7. Sales—when offering evidence of value of defective machine is repudiation by seller of right to have it back. Where the seller of a warranted machine sues on notes given for the purchase price and the evidence shows the machine is defective, the seller by offering proof as to what it was worth as junk repudiates any right to have the machine back, and a verdict for the value of the machine, not permitting the seller to have it back, may be proper.</p>

<p>Action in case for death by alleged wrongful act. Error to the Circuit Court of Will county; the Hon. Chables B. Campbell, Judge, presiding.</p>

<p>1. Statute of frauds—part performance. To remove an oral contract for the sale of land from the operation of the Statute of Frauds it must appear that the vendee took possession under it and made permanent and valuable improvements with his own funds.</p> <p>2. Vendor and vendee—when vendee may repudiate. To permit the vendee to repudiate an oral contract would not be a fraud on the vendor where the vendee merely took possession and paid $500 of the $3,700 purchase price and made no valuable or permanent improvements and permitted no waste except natural wear.</p> <p>3. Vendor and vendee—when vendor cannot take advantage of vendee’s failure to properly rescind. The vendor cannot take advantage of the vendee’s neglect to promptly rescind the contract and thereby retain the earnest money when the delay is caused by the vendor’s promise to cure the defect in title.</p> <p>4. Vendor and vendee—delay preventing enforcement of contract. Where the vendee gives the vendor notice that he does not hold himself bound and will not perform and the vendor makes no prompt assertion of his right to enforce the contract, equity considers that the vendor acquiesces in the notice and abandons his equitable right, and a comparatively brief delay is a bar.</p> <p>5. Yendor and vendee—delay by vendor in giving notice that he will enforce the contract after notice of abandonment. Where the vendee, who has paid part of the purchase price, gives the vendor notice that he will not perform because merchantable title was not furnished, even if the vendee could have been compelled to perform in the first place, he has a right to repudiate where the vendor does not advise him that performance will be insisted on until more than three months after such notice.</p> <p>6. Appeals and errors—when freehold involved. The appellate court may take jurisdiction on the assumption that a determination of whether a freehold is involved is not required, where neither party raises the question and complainant seeks to compel performance of an oral contract to purchase land but the defendant alleges that no merchantable title was tendered until more than a year after time for performance, that notice to rescind was given, and that complainant did not act thereon for more than three months.</p> <p>7. Specific performance—affirmative relief. Where specific performance of a contract to purchase land is denied, defendant cannot complain that complainant was not required to refund the difference between the amount paid under the contract and the amount collected in rents, where no cross-bill is filed or affirmative relief asked in the answer.</p>

<p>Divorce. Appeal from the Circuit Court of Lake county; the Hon. Chables Whitney, Judge, presiding.</p>

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

<p>Action in case for personal injuries. Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Slusser, Judge, presiding.</p>

<p>1. Evidence—when photograph admissible. A photograph stands on the same footing as a diagram or map and is a legitimate mode of proving conditions which can be thus represented.</p> <p>2. Evidence—preliminary proof as to correctness of picture. Preliminary proof of the correctness of a picture is addressed to the court, and as a rule its discretion is not subject to exception.</p> <p>3. Evidence—when photograph may be misleading. A photograph of a machine taken soon after an injury thereon may he misleading where a machinist and another appear in the same relative positions which such machinist and the person injured occupied at the time of the injury.</p> <p>4. Evidence—when photographs competent. Photographs of a machine and its surroundings made by an experienced photographer, about three hours after an accident before any changes were made are competent and valuable where the negligence charged involves the machine and scrap iron on the floor about it.</p> <p>5. Evidence—harmless error. Error in excluding photographs need not reverse where they were only supplemental to the oral testimony.</p> <p>tí. Evidence—when exclusion of testimony as to wages after accident reversible. In an action for injuries to a minor’s hand, exclusion of statements by him as to what he has earned since the accident is reversible error when' offered by defendant since such evidence tends to show the extent his earning power may be impaired after his majority.</p> <p>7. Instructions—referring to facts and circumstances appearing on the trial. In an action for personal injuries, an instruction to the effect that if the jury believe from the evidence and the facts and circumstances appearing on the trial that the plaintiff knew, or by reasonable care might have known, of the hazard at and immediately prior to the time of accident he cannot recover, though they believe from the evidence and facts and circumstances appearing on the trial that there was a safer way of conducting the business plaintiff was engaged in that might have prevented the injury, is properly refused, though if the misleading element, which refers the jury to the facts and circumstances appearing on the trial, is omitted the instruction is correct.</p>

<p>1. Administration of estates—court order construed. A circuit court order concerning a county court judgment allowing an executor’s claim against the estate, which provides that the claim be held in abeyance until the final report is made by the executor and heard on notice to all interested, seems to mean that the claim shall be reheard in the county court, and if so it should have set aside the allowance of the claim.</p> <p>2. Administration of estates—order of circuit court 'fixing time of hearing of executor’s claim error. It is error for the circuit court in ordering a rehearing of an executor’s claim against the estate to fix the time when the county court should hear the claim.</p> <p>3. Executors and administrators—duties. An executor occupies a fiduciary relation to the heirs and legatees of the estate and it is his duty to protect their interests against claimants, especially when he is a claimant.</p> <p>4. Executors and administrators—when under county court’s jurisdiction. Notice to creditors by an executor as to the time for the presentation of claims brings a legatee within the county court’s jurisdiction for that time only.</p> <p>5. Executors and administrators—when allowance of claim against estate fraudulent. A holding that the allowance of an executor’s claim against the estate was fraudulent is justified where it seems that it was such executor’s intention to secure its allowance without the knowledge of the residuary legatee, since he filed it after the time fixed for the presentation of claims and without notice to the residuary legatee, though he was aware of its existence at that time and the claim as filed affords no light to any one who might dispute it.</p> <p>6. Executors and administrators—allowance of executor’s claim against estate. Presentation and allowance of an executor’s claim against the estate, after the time fixed for such presentation and without notice to the residuary legatee, is a violation of the executor’s duty to the legatee.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.</p>

<p>1. Statutory law—construction. A statute will be given prospective force only, unless a purpose to give it retrospective force is expressed in the act itself, or is to be inferred therefrom by necessary implication.</p> <p>2. Attorney and client—Hen law construed. The provision in the attorney’s lien law “that attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection,” creates a lien upon all such claims during the preliminary stages and before suit or action is brought.</p> <p>3. Attorney and client—Hen law. The provision in the attorney’s lien law with reference to claims, etc., “or upon which suit or action has been instituted,” continues the lien after the bringing of suit and also gives a lien to a lawyer who comes into a case after suit is begun.</p> <p>4. Attorney and client—lien laio. The provision of the attorney’s lien law giving liens for services “rendered or to be rendered” does not express an intention to give the law a retrospective effect, but refers to the time when the lawyer is using the law to enforce his lien.</p> <p>5. Attorney and client—liens. The attorney’s lien law providing that attorneys “shall have a lien upon claims which may be placed in their hands” indicates that the subject-matter to be covered by the lien is not past but future.</p> <p>6. Attorney and client—liens. The attorney’s lien law was not intended to have retrospective force, although it was intended to cover almost all classes of work done by the attorney from the time the matter is placed in his hands until its termination.</p> <p>7. Statutory law—lien act creates new right. An act giving a lien does not give a remedy, but creates a new right in the property of another.</p> <p>8. Statutory law—power to enact retrospective laws. Where a contract is. made for legal services at a time when there is no law giving the attorney a lien on any property therefor and no lien is contemplated, the legislature has no power to create a lien under such contract.</p> <p>9. Contracts—abridgment by statute. The principle that the legislature cannot abridge contractual relations is subject to no modifications.</p> <p>10. Attorney and client—lien. Where a contract is made for legal services prior to the attorney’s lien law and notice is given to the defendants after the enactment thereof as to the terms of the contract, the attorney’s rights rest entirely on the contract, and if he cannot bind his clients under the lien act he cannot bind defendants who are entitled to every defense the clients could interpose.</p> <p>11. Attorney and client—lien. Under the attorney’s lien law a lien cannot be enforced for services performed before its enactment, since its enforcement would charge am additional incumbrance upon the property and change contractual relations and not merely extend the attorney’s remedy.</p>

<p>1. Roads and bridges—turning to right. Under R. S. c. 121 § 77, providing that carriages shall turn to the right on meeting, except when the nature of the ground makes it impracticable, one driving a wagon is not required to turn to the right where a pile of bricks is so located in the street that it is impossible to pass on the right side thereof, but under the common law he may turn to the left.</p> <p>2. Negligence—when evidence justifies finding as to care exercised By drivers. A verdict that plaintiff was exercising due care and that defendant was guilty of the negligence charged is warranted where, when plaintiff turned his team to the left to pass around a street obstruction, the defendant driving rapidly collided with him and the shaft of his wagon was driven into the body of one of plaintiff’s horses, killing him, and it appears that defendant’s horse could easily have passed between plaintiff’s team and the curb, that defendant saw plaintiff’s team some time before the accident, that because of his low seat plaintiff could not see, that defendant was going rapidly but plaintiff’s team was walking, that plaintiff could not have avoided the accident, and that plaintiff had had fifteen years’ experience but defendant had had only eight months’ experience.</p> <p>3. Instructions—repetition. Only one instruction is required on any particular subject.</p>

<p>Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeboy, Judge, presiding.</p>

<p>1. Damages—physician’s services. In an action by a physician for services, the reasonable value thereof is for the jury to determine, and a verdict for $150 should not be disturbed where the physician charged $575 on his books and sued for $1,050; several physicians gave widely varying estimates concerning the value of the services; the physician who assisted had had thirty years’ experience and testified that in his opinion defendant’s back was dislocated and not broken and that he would not have used the cast placed thereon by the plaintiff; plaintiff forced himself into the case knowing that an older physician was desired, and there is evidence that his treatment was violent and unskilful and caused great pain.</p> <p>2. Physicians—instruction as to shill required. An instruction that a "physician must bring to the case and exercise that degree of knowledge, skill and care which a good physician and surgeon would use under the circumstances is proper.</p> <p>3. Physicians—instruction concerning allowance for unshilful treatment in action for services. A physician suing for services performed is not injured by an instruction which authorizes an allowance to defendant for pain caused by plaintiff’s failure to use the skill of a good physician but which leaves the question of skill and of whether defendant suffered pain because of any lack thereof to the jury.</p> <p>4. Physicians—harmless error. An instruction providing that before a physician could recover for certain services performed he must prove by a preponderance of the evidence that he was a regularly licensed physician and surgeon at the time cannot be held to have affected the verdict where, after oral proof of such license, the jury found for the physician.</p> <p>5. Instbuctions—statements of counsel as to. A ruling that counsel cannot state to the jury the instructions he is going to ask and further that each party has offered instructions is correct, since so far as the jury is concerned "the instructions are given as the court’s view of the law and they should not be informed at whose request they are given.</p>

<p>Mechanic’s lien. Appeal from the Circuit Court of Winnebago county; thé Hon. Abthtjb H. Fbost, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. Robebt J. Gbier, Judge, presiding.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Criminal law—cross-examination of witnesses. On prosecution for assault with a deadly weapon, on cross-examination of one of defendant’s character witnesses, questions by the state’s attorney as to whether witness had heard anybody say that the defendant had trouble with his hired man, which usually arose because of intimacy with the hired man’s wife, are highly improper and if persistently repeated might reverse if the defendant’s guilt is not clear, but the mere asking thereof should not reverse where the defendant’s guilt is clear.</p> <p>2. Assault with deadly weapoh—when jury fully instructed as to law of self-defense. The jury is fairly instructed on the law of self-defense where the basis of defendant’s contention as to why such instructions should be given is brought to the jury’s attention, and where several other instructions are given which fully set forth the law applicable thereto.</p> <p>3. Criminal law—instructions. It is not prejudicial error to refuse instructions, the principles of which are covered by those given.</p> <p>4. Assault with deadly weapon—when finding of guilty warranted. On prosecution for assault • with a deadly weapon, a verdict of guilty is warranted where the testimony for the people clearly shows that defendant broke a sugar bowl over the head of the prosecuting witness, when he stooped over to pick up some wood, and then fired two shots at him, and no evidence in opposition thereto is offered except that the defendant has a good general reputation as a peaceable citizen.</p> <p>5. Assault with deadly weapon—intent. The intent of an assault with a deadly weapon is for the jury to determine from the circumstances shown by the evidence.</p>

<p>1. Estoppel—6y evidence in court. On assumpsit for medical services, where a surgeon procured by plaintiff testified that he looked alone to plaintiff for his pay, he is estopped at all times thereafter from asserting any claim against defendant for the services.</p> <p>2. Physicians and suboeons—when finding of original promise to pay for medical service warranted. A finding that defendant made an original promise to pay for an operation on his daughter and for medical services, and that credit was extended therefor, is warranted, whether she was a member of his family or not, where there was evidence that the plaintiff consulted him about the operation and about its cost and defendant said he could not pay for it then, but could later.</p> <p>3. Physicians and surgeons—assisting physician’s compensation. One liable for medical services is shown to have understood the custom for the attending physician to settle with a physician called in to assist, or to have understood that such was the arrangement in the particular case, where the one so liable presented a bill to the assistant for coal sold to him, and on request to allow the amount on the bill for services stated that there was no obligation to him but that the attending physician was the one to collect the money.</p>

<p>1. Corpobations—liability of corporation for agent's acts. On assumpsit for goods sold, where the evidence indicates that plaintiff corporation held a certain person out as its agent so far as the transactions involved are concerned and the acts of the agents testified to are concerning such agency, an instruction on the power of corporations to act through agents and as to their liability for the acts of agents may be given.</p> <p>2. Account stated—when not established. On assumpsit for an alleged balance due for goods sold, when defendant testified that he made payments, which were not credited, the jury were justified in finding that there was no account stated which barred defendant.</p>

<p>1. Negligence—dog frightening team. In an action for injuries sustained when a team alleged to have been frightened by defendant’s dog crashed into plaintiff’s buggy, plaintiff must establish by the preponderance of the evidence that defendant’s negligence in keeping the dog as charged was the proximate cause of the injury, and it must be proved that defendant was the owner and possessor of the dog with knowledge of its vicious propensities of frightening teams or circumstances which reasonably show that defendant must have had knowledge of such viciousness established.</p> <p>2. Witnesses—effect of making defendant a witness for plaintiff. When plaintiff makes defendant his witness he is in ,a bad position to argue that defendant’s testimony cannot be relied on.</p> <p>3. Animals—liability for vicious dog. A verdict for personal injuries caused by alleged negligence of defendant in owning and keeping a vicious dog, with knowledge of his propensity to frighten teams along the highway, which dog frightened a team driven with due care and such team ran into plaintiff’s buggy and injured her, cannot be sustained when the evidence is insufficient to show that defendant had knowledge of such propensity and it must be concluded from the evidence that the driver of the team which ran into plaintiff’s buggy was negligent in the manner in which he drove.</p> <p>4. Evidence—statements of plaintiff in pleadings filed in previous cases admissible. On action for personal injuries sustained when a team, alleged to have been driven with due care, crashed into plaintiff’s buggy when frightened by an alleged vicious dog kept and owned by defendant, with knowledge of such vicious propensity to frighten teams along the highway, it is error to exclude a declaration filed in an action against defendant and the driver of such team and the original declaration in the action at bar in which • it was alleged that such driver negligently drove a team of colts with his left hand and led another team with his right hand.</p>

<p>1. Damages—when verdict not excessive. A verdict for seven hundred and fifty dollars is not so excessive as to justify a reversal, where the physicians’ bill is eighty or ninety dollars, plaintiff lost three months’ time because of the injuries, is still suffering therefrom, and is yet incapacitated for labor.</p> <p>2. Carriers—personal injuries. A verdict for plaintiff should not be reversed where the evidence is conflicting whether she was thrown down by the sudden starting of the street car when she was alighting, or whether she walked off the car before it stopped.</p>

<p>1. Evidence—existence of partnership. In an action to charge defendants, as copartners, with certain goods delivered, it is not error to admit a pamphlet caused to be published by one of the defendants before the account sued on commenced, in which he referred to his codefendant as the managing partner in the business for which the goods were delivered.</p> <p>2. Evidence—contract as to joint enterprise admissible to prove partnership. In an action to charge defendants, as copartners, for goods delivered, it is not error to admit a contract which provides for a joint enterprise between defendants as to the business for which the goods were furnished and which is prima facie proof of a partnership.</p> <p>3. Evidence—when sufficient prima facie proof of partnership to make declaration of members admissible. A contract between codefendants which shows a community of property, of interest, of profits, and of management in a certain business makes a sufficient , prima facie showing of a partnership between defendants to authorize the admission of declarations of either in relation to the business, whether made in or out of the presence of the other and with or without the other’s consent.</p> <p>4. Evidence-—when order of. proof not insisted on. If during trial sufficient proof is introduced, courts do not stand on the order of the proof.</p> <p>5. Partnership—when person liable as partner. One is liable as the partner of the person who ordered certain goods, on the ground that he held himself out to the world, as a partner of such person where in a pamphlet published by him he allows such person to be referred to as the managing partner of the business for which the goods were sold.</p> <p>6. Partnership—when estopped to deny. One is estopped to deny the existence of a partnership with a person who ordered certain goods if a pamphlet, which he published, referring to such person as managing partner, came into the hands of the seller of the goods and the seller was informed of the alleged partnership and gave credit on the strength of it.</p> <p>7. Partnership—liability as partner for goods delivered. One is liable for goods furnished if a person, alleged to be his partner, asked that they be charged to the partnership, he held himself out to the seller as a partner, and the goods were used in the alleged partnership business for the alleged partner’s benefit.</p>

<p>Action in case for death by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Woodford county; the Hon. Ge'obge W. Patton, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.</p>

<p>1. Landlord and tenant—what may not be offset against claim for rent. It would seem, that as long as a tenant remains in the use and occupation of premises, he cannot offset any damages because of inconvenience to him in such use as against rent, hence no contract of the landlord tending merely to diminish the enjoyment of the premises can be offset.</p> <p>2. Landlord and tenant—when complaints by tenant waived. Past complaints are waived by a tenant who pays all the rent for the months in which occasion for complaint existed.</p> <p>3. Landlord and tenant—measure of damages when tenant seeks to recoup against claim for rent. Where a tenant seeks to recoup against a claim for rent, the measure of damages is the difference between the contract price agreed on as rent and the rental value of the premises in the condition they were placed by the landlord’s action.</p> <p>4. Landlord and tenant—what evidence properly excluded, where tendant seeks to recoup in action for rent.. In an action for rent, where defendant seeks to recoup for failure to properly heat the premises, it is not error to exclude testimony as to failure to heat for a period during which the rent was paid.</p>

<p>1. Death—when evidence of careful habits of deceased admissible. It is proper to admit evidence of the careful habits of deceased in an action for his death, where he was repairing certain telephone wires which passed above high potential wires of defendant and a witness looking up, on hearing a crackling sound, saw him on a cross-arm of defendant’s pole, waving back and .forth, and saw him fall and catch on a feed wire, from which he was taken dead, the evidence being conflicting whether it was reasonably necessary under the circumstances to come in contact with the wire or to go on the cross-arm.</p> <p>2. Witnesses—who not qualified as expert. A witness who has never seen the insulation on wires, the imperfection of which it is alleged caused the death for which action is brought, is not qualified to testify as an expert concerning said insulation.</p> <p>3. Electricity—care required of users. One using electricity must use care commensurate with the danger.</p> <p>4. Electricity—duty of light company towards workman on wires above. An instruction ignores the element as to whether defendant owed deceased a duty to insulate its wires at the point where he was killed, and does not accurately state the law where it states that defendant, whose wires were below those of the telephone company which employed deceased, owed deceased a duty to insulate its wires where he might be called upon to work, whether he was rightfully or wrongfully, reasonably or unreasonably, on the pole of defendant at the place of the accident, or whether defendant knew, or by ordinary care might have known, that deceased, in the line of his duty, might or would get on such pole or come in contact with its wires and whether contact at such point might result injuriously.</p>

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

<p>1. Animals—when vicious disposition need not he shown. Where a driver delivering coal unfastens the trace of a horse, whereby a boy is kicked, and the action is founded on negligence in placing the wagon and horses upon the sidewalk and in violating an ordinance, it is not necessary to allege and prove that the horse was a vicious horse, of which the owner had knowledge.</p> <p>2. Animals—when coal driver unhitching horse is negligent. Where a driver delivering coal backed the wagon up to the sidewalk and unhitched the trace of a horse, whereby the horse swung around with its hind feet upon the sidewalk and kicked a boy passing 'by while the driver was in a coal hole leveling off the coal, and there is evidence that the boy had not disturbed the horse, a verdict for the boy will be sustained.</p> <p>3. Animals—when negligence of boy passing by horse is for the jury. Where a coal driver unhitched a horse, whereby it swung around with its hind feet upon a pavement and kicked a boy passing by, whether it was contributory negligence for the boy to walk near the horse is for the jury.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Chakles N. Goodnow, Judge, presiding.</p>

<p>1. Negligence—ditty to boy jumping on wagon. Where a six-year-old hoy jumps on a wagon and slips and falls in front of a wheel in attempting to get off, the driver owes no duty other than not to injure him wantonly or wilfully.</p> <p>2. Negligence—when no evidence of wrongful act by wagon driver. Where a six-year-old hoy jumped on a wagon unknown to the driver and slipped and fell in front of a wheel in attempting to get off, there is no evidence of wilful or wanton conduct on the part of the driver, and peremptory instruction should be granted.</p>

<p>1. Municipal court—proceedings at trial to be reviewed, must be preserved in the form required by statute. 'When what purports to be a stenographic report of proceedings had at the trial, is certified to as a “statement of facts,” it cannot be treated as a part of the record, and errors assigned upon it cannot be considered.</p> <p>2. Municipal court—affidavit of merits which merely denies generally is not sufficient. Under rule 20 of the Municipal Court an affidavit of merits which merely denies generally the facts alleged in the statement of claim is not sufficient.</p> <p>3. Municipal court—where amended affidavit of merits filed. Where an affidavit of' merits is stricken from the files and leave is taken to file an amended one, the defendant is considered to have abided by the action of the court and is bound in the same way as a party who fails to stand by his demurrer at common law.</p> <p>4. Pleading—counterclaim properly stricken from the files. Where the counterclaim does not relate to the subject-matter of the cause of action, it is properly stricken from the files.</p> <p>5. Municipal court—pleading. Under the simplified procedure of the Municipal Court only the substantial or chief facts necessary to show either a legal cause of action or a legal defense, and the nature of it, need be stated, and evidentiary facts should be omitted.</p>

<p>Municipal court—conformity of pleadings and proof. Under rule 17 of the Municipal Court defendant is confined to defenses specifically set out in affidavit of merits, and in an action for veterinary services evidence of malpractice is not admissible where the defense set forth is breach of warranty.</p>

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

<p>1. Divorce—what finding sufficient to sustain. A finding in a divorce decree “that subsequently to their inter-marriage the said defendant has committed adultery as charged” is sufficient to sustain it, since the word “adultery” expresses the ultimate fact that was charged and necessary to find.</p> <p>2. Divorce—burden of proof. In a suit for divorce the burden of proving condonation rests on defendant unless it appears from complainant’s evidence.</p> <p>3. Decrees—findings. It is unnecessary in order to sustain a decree that it contain a. finding on a question not put in issue.</p>

<p>Parent and child—liability of parent for goods obtained by child. Where a son obtains rings from a dealer, a postal card message sent to the dealer by the father that he had sold the rings and would make it good, establishes the father’s liability, irrespective of a question of the agency of the son in procuring them.</p>

<p>Execution—when court not issuing capias ad satisfaciendum cannot discharge from arrest. Where a defendant is arrested on a capias ad satisfaciendum issued by the Municipal Court of Chicago on a judgment recovered in such court in an action for which malice is the gist, the County Court of Cook County has no power to discharge defendant from arrest or imprisonment, or jurisdiction to determine, whether the capias was properly issued.</p>

<p>1. Appeals and errors—when objection sufficiently complies with rules of court. Where a rule of the Municipal Court of Chicago requires that objections to oral instructions shall be specific, an exception “to the third part of said instructions and to that portion of said instructions concerning attorney’s fees and the set-off,” will bring such questions up for review although the court is unable to determine what is meant by the “third part of said instructions.”</p> <p>2. Municipal courts—rules liberally construed. A rule of the Municipal Court of Chicago requiring that objections to oral instructions shall be specific and be made immediately upon the conclusion of the charge and before the jury retires should be given a liberal construction.</p> <p>3. Landlord and tenant-j-when instruction on right to recover attorneys’ fees is proper. Where a lease provides that a lessee shall be liable for the lessor’s attorneys’ fees and expense in enforcing the covenants and agreements of the lease, in a suit to recover such fees and for other liabilities, an instruction that if the jury believe that covenants had been broken and that in order to enforce them the plaintiff was obliged to and did employ an attorney and incur expense, then such reasonable costs and attorneys’ fees as the jury believed had been incurred prior to the commencement of the suit might be recovered, is proper where there was evidence that such services were rendered and expense incurred and that a certain amount would be reasonable for attorneys’ fees.</p> <p>4. Landlord and tenant—when landlord not liable for flooding. Where a lease provides that the lessor shall not be liable for damage occasioned by leakage, in an action for rent and other liabilities, the defendant cannot recoup for a loss sustained by a flooding of a building where there is no evidence that it was occasioned by the negligence of the lessor.</p> <p>5. Landlord and tenant—evidence inadmissible where a lessee seehs to recoup for flooding. Where a lease provides that the lessor shall not be liable for damage occasioned by leakage and the lessee seeks, in an action for rent, to recoup for a loss sustained by flooding, in the absence of proof of negligence by the lessor, it is proper to refuse to permit a witness to answer whether he had “made a list of or was there any” of his goods injured.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Arthur DeSelm, Judge, presiding.</p>

<p>1. Limitations—statement of a new cause of action. Where the original declaration in one count charged that while plaintiff had his hand under a screw of a sausage machine defendant’s foreman negligently started the machinery, thus causing the injury, and in a second count, filed after the period of limitations, the negligence charged was in starting the machine while plaintiff was in the position as stated in the first count, alleging as the cause of starting that defendant had permitted machine to be operated while the forks of the belt shifter were out of repair, a new cause of action is not stated and the statute of limitations is no defense.</p> <p>2. Limitations—statement of new cause of action. Where the original declaration in one count charged that while plaintiff had his hand under a screw of a sausage machine defendant’s foreman negligently started the machinery, thus causing the injury, and in the second count, filed after the period of limitations, the negligence charged was that a negligent order was given by the foreman of the defendant to the plaintiff, a new cause of action is stated to which the statute of limitations is a good defense.</p>

<p>Corporations—authority to execute mortgage. In an action upon a replevin bond, where defendant in mitigation of damages as permitted under the statute introduces in evidence a chattel mortgage by which he claims ownership to the property, having received from the mortgagor, a corporation, at the time the mortgage was executed, a certificate that the president was duly authorized to execute it, there being no disaffirmance, it cannot be contended that the mortgage is void.</p>

<p>1. Municipal courts—sufficiency of statement. Neither the Municipal Court Act nor the rules of court require more than that a simple statement of plaintiff’s right of action be made, and it is not required that evidentiary facts be pleaded.</p> <p>2. Municipal courts—statement of claim of fraud. A statement of claim in the Municipal Court of Chicago, setting out in detail that plaintiff by contract was given exclusive sale rights in a certain territory of a device to be attached to cash registers, that he advanced a certain sum on the purchase of a number of the machines upon the false and fraudulent representation that the device would fit all cash registers, when in fact it would fit but a few, whereby plaintiff was unable to sell machines which were delivered to him, that the defendant agreed to a rescission of the contract, but would not return the money although the return of the machines was offered, is sufficient, and if the suit had been brought in another court of record, the amount would be recoverable under the money counts of a common-law declaration.</p> <p>3. Actions—what facts constitute a cause of action. Facts constituting a cause of action are those facts which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of such facts.</p>

<p>Master and servant—when wrongfully discharged employee not estopped from proving employment. An employee was summoned without previous notice or warning into the private office of her employer and in the presence of four or five men asked whether she worked by the week and what was due her. She replied that she was paid by the week and that a certain sum was due her, and was paid the amount due, signing a receipt in full payment of all claims to date. As she was passing out of the door she was discharged without warning and without cause. Held, in an action for wrongful discharge, that a failure to assert the contract of employment at the time of discharge did not estop plaintiff from proving her employment.</p>

<p>1. Libel and slander—ordinary construction, should be given article. In interpreting the language of an article to determine whether or not it is libelous, no different construction should be placed upon it than men of ordinary affairs would give it.</p> <p>2. Libel and slander—article need not technically charge crime. It is not necessary that an article or publication shall technically charge a crime if the language used induces readers reasonably to believe that a crime or wrong has been committed.</p> <p>3. Libel and slander—when publication charges adultery. Where a newspaper publishes an article regarding the divorces in an “auto set” in a city, and falsely states that plaintiff was divorced by his wife, who named women in her bill, the publication charges adultery and is libelous per se.</p> <p>4. Libel and slander—effect of publication charging adultery. When a publication charges adultery it is libelous per se, and no colloquium, inducement, or innuendo is necessary.</p>

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

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

<p>1. Innkeepers—when person is guest. Plaintiff was a guest at a hotel though he arranged for his room at a price per week and did not take all of his meals there, when the room was not taken for a certain time and he informed the clerk that his stay was indefinite.</p> <p>2. Innkeepers—when assumption justified that person represents proprietor of hotel. A guest at a hotel who deposits money with the sole person in charge of the office has a right to assume that such person represents the proprietor and is authorized to accept money as his agent, when such person is acting in all respects as clerk and has been previously seen by the guest acting in' the same capacity and the proprietor allowed said person to act with the apparent authority of a clerk and with apparent authority to receive money for safe-keeping.</p> <p>3. Innkeepers—when liable for money handed to person in charge of desk. A hotel proprietor is liable for money handed by a guest, to a person in charge as clerk for safe-keeping where such guest had a right to assume that such person represented the proprietor and was authorized to accept money for safe-keeping.</p> <p>4. Innkeepers—when guest not negligent in depositing money at office. A guest at a hotel is not negligent in depositing money at the office for safe-keeping where he had a right to assume that the person then in charge as clerk had authority to act and to receive. money for safe-keeping, though it seems that such person was a porter and a stranger wrote the receipt which was signed by said person.</p>

<p>Mandamus—delay precluding granting writ. A delay of eighteen, years by a police patrolman claiming to have been illegally and wrongfully discharged before filing a petition for mandamus against a city to compel his reinstatement is such laches as will preclude granting the writ, no justification for the delay nor any waiver of rights by any authorized officer on behalf of the city being set forth.</p>

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

<p>Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Mabcus A. Kavahagh, Judge, presiding.</p>

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

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

<p>1. Appeals and errors—conclusiveness of verdict. A court of review is legally bound by the verdict where it is not manifestly against the weight of evidence.</p> <p>2. Sales—when in default vendor must return purchase money. Where the seller has received part of the purchase money for a stock of goods, fixtures and a horse and wagon, and is unable to deliver the horse and wagon, the law implies a promise on his part to repay the purchase money paid, and the buyer, when not in default, has an action for money had and received.</p>

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

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

<p>1. Corporations—time when foreign corporation may qualify to do business. A foreign corporation by contract appointed a sales agent and upon the termination of the contract obtained a temporary injunction restraining the agent from using complainant’s name in advertising and from selling or disposing of goods on hand. After the termination of the contract and prior to filing the bill complainant obtained a license to do business in the state. Held, that the fact that complainant was not authorized to do business in the state while the contract was in force was no ground for dissolving the injunction.</p> <p>2. Injunctions—when officer of corporation is proper party defendant. Where, upon the termination of a contract appointing a corporation a sales agent, a hill is filed to restrain the corporation from using complainant’s name in advertising and from selling or disposing of goods on hand, a secretary of the corporation who is interested in and actively engaged in the business is properly named in the bill as a defendant.</p>

<p>Error to the Criminal Court of Cook county; the Hon. Kiokham Scanlan, Judge, presiding.</p>

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

<p>1. Negligence—degree of care. A person slightly more than sixteen years of age is chargeable with the same degree of care for his safety from injury by being struck by street cars as might reasonably be expected of an adult, where such person was born in Chicago, resided on a street on which cars were operated, was graduated from grammar school and attended a night high school.</p> <p>2. Negligence—unexpected peril. One compelled for his own safety to act suddenly in the presence of unexpected peril resulting from the negligence of another is not chargeable with contributory negligence if he fails to exercise such prudence as men usually exercise under ordinary circumstances.</p> <p>3. Street railroads—when no unexpected peril shown. A ease is not presented wherein a person is compelled to act suddenly in the presence of unexpected peril caused by another’s negligence where such person saw a street car about a block and a half away approaching a crossing and waited till a car about one hundred feet away going in the opposite direction had passed about twenty feet beyond him and then attempted to cross the tracks without looking again, but was struck by the car which he had seen approaching.</p> <p>4. Street railroads—failure to look for cars. In the absence of evidence of circumstances which excuse looking for approaching street cars, where looking would disclose the danger, a finding is not warranted that such failure to look is not negligence.</p> <p>5. Stbeet baileoads—contributory negligence. Plaintiff was guilty of negligence which proximately contributed to his injuries where on account of his age and experience he should be held to the same degree of care as an adult and where it seems that he saw a southbound street car about a block and a half away and waited near the tracks till a northbound car which was about one hundred feet away had passed twenty feet beyond him and then attempted to cross the tracks without looking but was struck by the southbound car.</p>

<p>Dramshops—sales without license. A finding against one charged with keeping a hotel without a license wherein intoxicating liquor was sold in quantities less than one gallon without a license in violation of the Revised Municipal Code of Chicago, § 1348, cannot he sustained in the absence of evidence that four bottles of beer sold on the premises and to be drunk there was “lager heer,” malt liquor, or intoxicating, or that it produced intoxication in any degree.</p>

<p>1. Insurance—burden of proof. In an action on a certificate of insurance against accidental death, if the only question is whether death was accidental, the burden of proof is on plaintiff to show that the injury was not self-inflicted.</p> <p>2. Evidence—presumption that men are sane and, avoid death rebuttable. In an action on a certificate of insurance against accidental death the presumption that all men are sane and avoid injury and death may establish, prima facie, in the absence of proof to the contrary, that the injury which caused death was not self-inflicted, but such presumption is rebuttable.</p> <p>3. Insurance—when suicide shown. Verdict is properly directed for defendant in an action on a certificate of insurance against accidental death where the only reasonable conclusion from the position of the body on a bed in a locked room of a bath parlor after an attendant had thought he had heard a shot from such room, the manner in which a revolver, one chamber of which was discharged, was held, the location and character of the wound and an indentation in the wall, is that death was self-inflicted.</p>

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

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

<p>Vebdict—when passion and prejudice negatived. That a verdict in favor of an attorney for services rendered was influenced by passion and prejudice is negatived by the subject-matter of the litigation.</p>

<p>1. Mobtgages—when tarred. The mortgage is a mere incident to the debt and is barred only when the debt is barred.</p> <p>2. Statute of limitations—construction. Sections 11 and 16 of the statute of limitations are to be construed together.</p> <p>3. Mobtgages—when payment of note not assumed. By accepting a conveyance of property subject to a trust deed one does not assume the payment of the note secured by such deed.</p> <p>4. Mortgages—when payment of principal not assumed. Where a person who accepts a conveyance of property subject to a trust deed to secure a note enters into extension agreements with the holder of such note and agrees to pay interest and does so pay, no personal liability on the part of such person to pay the principal of the note is created.</p> <p>5. Mortgages—statute of limitations. ^Where conveyance of property is made subject to a trust deed to secure a note, the running of the statute of limitations in favor of the grantor against the holder of the note is prevented by payments of interest by the grantee.</p> <p>6. Mortgages—when statute of limitations cannot te interposed. If the grantor of property subject to a trust deed to secure a note pays the interest thereon the grantee cannot interpose the statute of limitations to defeat foreclosure.</p> <p>7. Mortgages—when foreclosure decree is in rem. A foreclosure decree involved is in rem where the suit is brought against the maker of the note • secured by a trust deed after such maker conveyed the property subject to such deed and reconveyance has been decreed.</p>

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

<p>Damages—breach of building contract. Where defendant repudiates a building contract by the terms of which he was to pay plaintiff upon presentation of an architect’s certificate, plaintiff may treat the contract as rescinded and recover reasonable value of work and material without such certificate.</p>

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

<p>1. Municipal corporations—nature of action on ordinance. An action by a city to recover a penalty for the violation of an ordinance is a civil suit.</p> <p>2. Municipal corporations'—complaints in action on ordinance may be amended. An action by a city to recover a penalty for resisting a police officer, in violation of Municipal Code of Chicago, § 1772, being a civil action, the complaint may be amen'ded while a motion for a new trial is pending and being heard.</p> <p>3. Municipal corporations—sufficiency of complaint for violating ordinance. A complaint for resisting a police officer in violation of Municipal Code of Chicago, § 1772, is sufficient if the offense is set forth substantially in the language of the ordinance; it is neither necessary nor proper to plead the evidence.</p>

<p>1. Municipal cobpobations—action to recover penalty. An action by a city to recover penalty for the violation of a smoke ordinance is a civil and not a criminal proceeding.</p> <p>2. Municipal cobpobations—smoke ordinance exercise of police power. Section 17 of an ordinance entitled “An ordinance providing for smoke inspection and abatement in the City of Chicago,” is a valid exercise by the city of its police powers.</p>

<p>1. Municipal cobpobations—use of defective sidewalk. The fact that plaintiff knows of the defective condition of a sidewalk does not constitute his walking thereon negligence as a matter of law.</p> <p>2. Municipal cobpobations—notice to city of injury may he read to jury. In an action for injuries from defective sidewalk, it is not error to permit a statutory notice given to the city to he read to the jury.</p> <p>3. Evidence—expert testimony as to cause of injury. In an action for injuries from á defective sidewalk, it is not error to ask a physician if the injury could have resulted from turning an ankle on a bad sidewalk, where the manifest purpose of the question is to ascertain from the witness, as an expert, whether or not the injury complained of might or could have so resulted.</p>

<p>Fraternal insurance—"burden of proof. In an action on a benefit certificate, where the defense is that the insured in his application untruthfully stated that he had never had inflammation of the lungs, the burden of proof is on defendant to establish its defense by a preponderance of the evidence.</p>

<p>1. Forcible entry and detainer—must be reasonable demand for specific amount. Where premises were leased under a written agreement acknowledging receipt of rent for the full term and providing that if plaintiff should convey the premises to defendant before the expiration of the lease under a contract of sale then existing, defendant should receive credit on the purchase price for the amount paid for rent, taxes, repairs, etc., plaintiff, having made demand between 9 and 10 o’clock p. m. for immediate possession, defendant having refused to accept a warranty deed and complete the purchase, plaintiff cannot maintain forcible entry and detainer, since such demand was unfair and not for a specific amount then ascertained.</p> <p>2. Forcible entry and detainer—where time is not of the essence of the contract, vendor must place purchaser in statu quo. Where a purchaser refuses to complete the terms of a contract of sale on demand, time not being of the essence of the contract and there being no provision that the money paid should be forfeited, the vendor cannot rescind and maintain an action in forcible entry and retainer without first placing defendant in statu quo.</p> <p>3. Forcible entry and detainer—when defendant refuses to complete contract of purchase. An action in forcible entry and detainer cannot be maintained upon defendant’s refusal to complete a contract of purchase where he is in possession of the premises under an unexpired lease from plaintiff with rent fully paid.</p>

<p>Habeas corpus. Error to the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.</p>

<p>Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. Mjchael F. Girten, Judge, presiding.</p>

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

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

<p>Landlord and tenant—waiver of breach of covenant not to sublet without written consent. Where a lessee sublets in violation of a covenant in the lease not do so without the written consent of the lessor, and the lessor accepts payment of rent from the sub-lessees and serves them with a five days’ notice, there is a waiver of the breach of covenant, and in an action in forcible entry and detainer it is error to refuse an instruction to that effect.</p>

<p>1. Appeals and errors—admission of immaterial evidence not reversible error. In an action by a real estate broker for commissions, the admission of evidence not strictly material to the issues is not reversible error where it could have no influence on the decision of the jury.</p> <p>2. New tbial—motion should be supported by affidavit of witness. A motion for a new trial on the ground of newly-discovered evidence is properly denied where there is no showing why the affidavit of the witness is not produced.</p> <p>3. New trial—newly-discovered evidence. Where the evidence relied on as basis of a motion for a new trial tends only to impeach and discredit a witness, although newly-discovered, it is not sufficient to sustain the motion.</p>

<p>Peinoipal and agent—agent must inform principal of contract with competitor. Where an agent agrees, in a contract appointing him an exclusive sales agent, to secure the hest price obtainable for the products of the principal, and does not' make known that he has made agency contracts with competitors, agreeing with one to give his products a preference in selling and with another that he will not give preference of advantageous price offers to other like products, the principal may abrogate and repudiate the contract.</p>

<p>1. Insurance—method of cancelling policy. A fire insurance policy providing that it may he canceled at any time at the request of the insured or by the company by giving five days’ notice, may be canceled by the insured or by the company as provided by the policy, or by agreement of the parties.</p> <p>2. Insurance—insufficient evidence of cancellation of policy. Where a broker notifies an insured that his fire insurance policies are to be canceled and the insured declines to surrender them, stating that he will take advantage of a clause requiring five days’ notice, and testifies that after a fire he informed a fire patrolman only that he had received notice the policies would be canceled, evidence by the patrolman that the insured had informed him that the policies had been canceled is not sufficient to establish such fact.</p> <p>3. Insurance—when failure to pay premium will not defeat recovery. If credit for a premium on a fire insurance policy is given by an agent of the insured, the mere failure to pay the premium does not defeat a right to recover on the policy.</p>

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

<p>1. Municipal corporations—failure to guard bridge. In an action for the loss of a team of horses and load of produce caused through negligence of defendants in' not guarding the approach to a bridge when it was open, the questions as to whether defendant was guilty of negligence or plaintiff guilty of contributory negligence were properly submitted to the jury.</p> <p>2. Appeals and errors—duty of court to reverse. It is the duty of a court of review to reverse a judgment where it appears that the verdict of the jury is against the manifest weight of the evidence.</p>

<p>Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding.</p>

<p>Statute of frauds—original contract. Where a contractor promises to pay the bill of a subcontractor, a mason, in consideration that he guaranty a wall for five years, there is an original contract supported by sufficient consideration and not within the statute of frauds.</p>

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

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

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

<p>1. Landlord and tenant—evidence in trespass against lessor. In an action by a tenant against her landlord for trespass where there is no evidence that she had the exclusive right to a lot between her building and that of the landlord, evidence that defendant allowed scavengers to use the lot in pumping filth from a closet on adjoining premises should not go to the jury, especially where the assessing of punitive damages is permitted.</p> <p>2. Damages—when proof of damage to household goods is improper. It is improper to permit damage to furniture to be shown by what the owner paid for it and what she thought it was worth, or without proof of what it cost to repair the damage to it.</p> <p>3. Damages—excessive. A verdict of eight hundred dollars in an action by a tenant against her landlord for carelessly and wilfully damaging her chattels will not be sustained where there is legal evidence of less than one hundred dollars damages.</p>

<p>1. Automobiles—law of the road. The law of the road does not require that wagons should he stopped merely because they are slower vehicles to let automobiles pass with undiminished speed.</p> <p>2. Highways—law of the road at crossings. The first vehicle to reach a crossing in the exercise of ordinary care should have the right of way, and others should approach with sufficient care to avoid danger of collision.</p> <p>3. Automobiles—when driver negligent in entering upon a crossing. The driver of a wagon struck by an automobile was not guilty of contributory negligence where he continued over a crossing he had fairly entered upon before the automobile driver in plain view of him reached it, but the collision under such circumstances was properly attributed to the negligence of the automobile driver.</p> <p>4. Damages—when testimony speculative. Testimony of a physician that pain from injuries may last for years is speculative and inadmissible.</p> <p>5. Damages—when not excessive. A verdict for two hundred dollars is not excessive where plaintiff was unable to work for eight days and suffered pain in his bruised back, hip and ankles for a considerable time.</p>

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

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

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

<p>Damages—liquidated. A sum stipulated in a written contract in which defendant agreed to purchase of plaintiff all the beer used in his business should be treated as liquidated damages and not as a penalty where actual damage to plaintiff is shown and it is apparent that it could not be definitely ascertained and the circumstances which might affect the dainage must have been known and considered by the parties in fixing such sum.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. William B. Scholeield, Judge, presiding.</p>

<p>Landlord and tenant—eviction. Where the evidence shows that the lessee, before the expiration of the lease, vacated the premises, turned the keys over to the janitor and asked the agent to re-rent, and that the lessor entered a few days later to decorate and after-wards re-rented, it does not show an eviction.</p>

<p>1. Limitations of actions—part payment. The theory upon which part payment of a debt takes a case out of the statute of limitations is that the party making the payment intended by it to acknowledge and admit the greater debt to be due, and if it was not in the mind of the debtor to do this, the operation of the statute will not be affected by the payment.</p> <p>2. Limitations of actions—part payment. Payment of a part of a debt is not enough to remove the bar of the statute of limitations unless it is made under such circumstances that a promise to pay the remainder may be reasonably inferred from it.</p> <p>3. Limitations of actions—burden of proof. In an action by the payee of a note against the maker, on a plea of limitations and replication of a part payment within ten years next before the commencement of suit, plaintiff has the affirmative of the issue and must prove the averment of his replication by a preponderance of evidence.</p> <p>4. Limitations of actions—evidence of part payment. On an issue whether part payments of a note removed the bar of the statute of limitations, the payee testified that four payments were made within ten years before commencing suit, but the testimony was given without entering into details as to the several payments and in such a way as to invoke statements of conclusions rather than a narrative of facts. The maker testified that before making the payment he expressly stated to the payee that the note was outlawed, that he would never recognize it as binding, but that he would pay such sum as he felt morally bound to pay. Held, a verdict for the maker would be sustained.</p>

<p>1. Carriers—demurrage. A demurrage regulation is for the prompt release of ears and is not intended to he so liberal as to defeat the end sought to be attained, but to stimulate the shipper to release cars and thus enable the carrier to serve all shippers.</p> <p>2. Carriers—relation between carriers and owner of shipment. Where a person buys a car load of grain dust and after a lapse of time, knowing that demurrage charges were accumulating, authorizes the railroad company to dispose of it, the company becomes the agent of the owner and is bound to use only that degree of skill, care and diligence which the nature of the undertaking and the time, place and circumstances of the performance reasonably demand.</p> <p>3. Carriers—due diligence in selling shipment. Where an owner of a car load of grain dust keeps the car out of service an unwarrantedly long time and, demurrage accumulating, authorizes the railroad company to sell it, if it appears that there were practically no purchasers nor any market for the dust at any time after the authorization because of adverse litigation as to the use of it, it cannot be contended that the company did not use due diligence.</p> <p>4. Carriers—private sale of shipment. Where demurrage charges accumulate on a car load of grain dust and the owner authorizes the railroad company to sell it by an order not limited as to means, method or price, the company may dispose of the dust at a private sale, and a statute regarding the disposition of unclaimed property has no application.</p> <p>5. Carriers—recovery of demurrage charges. Where the owner of a car load of grain dust who knows that demurrage charges were accumulating upon the car, and at what rate, retains the car for an unreasonably long time and finally gives the railroad company a general order to sell the dust, which is sold at private sale but, owing to adverse litigation as to its use, brings but a small price, a demurrage charge of a dollar a day, excluding Sundays and holidays, for the days the car was held after “free time” had expired, less the amount of the sale, may be recovered.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. Francis E. Baldwin, Judge, presiding.</p>