Volume 209 — Illinois Appellate Court Reports

<p>Appeal from the Circuit Court of Winnebago county; the Hon. James S. Batjmb, Judge, presiding.</p>

<p>1. Statutes, § 156*—necessity of Legislature inserting saving clauses. Where saving clauses to statutes are omitted by the Legislature, the courts are 'powerless to supply them.</p> <p>2. .Municipal corporations, § 1224*—who required to file notice of injuries with city attorney and cleric. Section 2 of the Injuries Act'(J. & A. If 6190), providing that any person who is about to bring an action or suit in any court against a city, village or town for damages on account of any personal injury shall, either by himself, agent or attorney, within 6 months from the date of injury, or when the cause of action accrued, file a written statement of his accident and injuries with the city attorney and city clerk, is applicable to all persons regardless of age.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehatjs, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the County Court of Rock Island county; the Hon. Nels A. Larson, Judge, presiding.</p>

<p>Error to the County Court of Lake county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Abthtjb W. Deselm, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Pleading, § 123*—when special replication required. A special plea concluding with a verification requires a special replication.</p> <p>2. Pleading, § 379*—when case treated as if oral issues joined. Where parties go to trial on a special plea concluding with a verification without a written issue joined thereon, it will be treated on review as if issue had been orally joined thereon.</p> <p>3. Commerce, § 4*—what constitutes interstate. The removal of old rails spread along the track from which they had been taken and replaced by new rails in repair of a railroad engaged in interstate commerce is a part of interstate commerce whether removed at once on being replaced by the new rails or later.</p> <p>4. Master and servant, § 302*—when employee does not assume risk of negligence of fellow-servants. Under the Federal Employers’ Liability Act an employee does not assume the risk of the negligence of his fellow-servants, but if they were negligent and their negligence caused his injury, the employer is liable.</p> <p>5. Master and servant, § 697*—when evidence shows negligence of fellow-servants in loading rails on flat car. Evidence held, sufficient to warrant the finding that defendant’s servants employed with plaintiff in loading rails on a flat car were negligent in throwing one end of the rail, which he was assisting at the other end in loading on the car, too quickly, whereby he was injured.</p> <p>6. Release, § 18*—when constitutes har to prosecution of action for personal injuries. A release of damages executed by plaintiff and a draft or check cashed by him in consideration thereof constitutes a har to an action hy him to recover damages for injuries sustained by him if such instruments were executed by him with knowledge of their meaning.</p> <p>7. Release, § 27*—when not a bar to prosecution of action under Federal Employers’ Liability Act. Evidence held sufficient to warrant the finding that plaintiff’s action to recover damages under the Federal Employers’ Liability Act was not barred by a release of damages executed by him and a draft or check cashed by him in consideration thereof, where same were in the English language, with which plaintiff was unacquainted, and the release was executed by him through an interpreter speaking the Austrian language, to which plaintiff’s language, Croatian, was similar, with the understanding by plaintiff that he was offered half pay under the State Workmen’s Compensation Act for the time since his injury.</p> <p>8. Witnesses, § 218*-—what is improper cross-examination of plaintiff in action for personal injuries. An objection to a question on cross-examination of plaintiff, in an action to recover damages for personal injuries, if he was willing to remove his clothing and have the jury look at his injured part and to have a certain physician in the presence of his own physician examine the part, was properly sustained.</p> <p>9. Appeal and ebbob, § 1523*—when giving of improper instruction is harmless error. The giving of an instruction stating the substance of the entire Federal Employers’ Liability Act, including provisions therein not involved in the case, was not reversible error where the jury could not have been 'misled.</p> <p>10. Instbuctions, § 53*—when instruction does not assume facts. An instruction did not assume a certain fact where it stated the instruction should not he operative until the jury should first find as to such fact.</p> <p>11. Instbuctions, § 63*—when instruction is not erroneous as assuming injury to plaintiff. An instruction held not erroneous as assuming plaintiff was injured where the evidence certainly showed he was injured.</p> <p>12. Masteb and sebvant, § 833*—when omission of clause on effect of contributory negligence in instruction in action under Federal Employers’ Liability Act is harmless error. The omission in an instruction, in an action under the Federal Employers’ Liability Act, indicating for what injuries plaintiff could recover if he was found entitled to a verdict, of a statement that if plaintiff was guilty of contributory negligence he could not recover the full amount he had suffered but the loss should be apportioned between himself and his employer, held not reversible error where the instruction was limited to that which the jury might find for him under the evidence, and the instructions of the court and another instruction fully advised the jury as to defendant’s rights in case the injury was partly attributable to plaintiff’s negligence, and where the evidence was insufficient to sustain a special verdict finding plaintiff guilty of contributory negligence.</p> <p>13. Master and servant, § 699*—when evidence does not show contributory negligence in failing to get out of road of rail being loaded on car. Evidence held insufficient to show that plaintiff was guilty of contributory negligence in not getting out of the way of the rail which he with other employees of defendant was loading on a car in time to avoid being struck by it as it rolled back off the car.</p> <p>14. Master and servant, § 833*—when instruction on contributory negligence is not ground for reversal. In an action by a railroad employee to recover for personal injuries received while assisting in loading a steel rail on a flat car, an instruction that if the jury believed from the evidence and from the instructions of the court that plaintiff was suddenly placed in a position of peril by the fault of defendant and he could not reasonably have anticipated such danger, then the mere failure of plaintiff to exercise thp care a prudent person would exercise, or the mere failure of plaintiff to exercise the same degree of care as if he had time for deliberation and the full exercise of his judgment and reasoning faculties, would not be contributory negligence on the part of plaintiff, held not misleading and not ground for reversal where the jury could not have found plaintiff was guilty of contributory negligence.</p> <p>15. Master and servant, § 435*—what degree of care for Ms safety required of employee placed suddenly in position of peril. An employee when placed in a position of peril is required to exercise such care for his safety as a person of ordinary prudence would exercise under the same circumstances.</p> <p>16. Damages, § 128*—when judgment not excessive. A judgment for $2,500 on remittitur, held not excessive, where plaintiff was 36 years old when injured, was a laboring man with no qualifications for employment other than that of common labor, and was so injured by breaking of the arch of his foot that the arch was not restored to normal state and he would be unable for life to do ordinary work requiring much walking or standing, barring him from most kinds of manual labor.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 894*—ivhat is duty of appellee to make additional abstract complete. An appellee has a right to file an additional abstract to present more fully any part of the record desired to have known to the court, but is under no duty to make it complete.</p> <p>2. Appeal and ebbob, § 864*—what is duty of appellant as to filing abstract. Rule 16 of the Appellate Court rules requires an appellant to file an abstract sufficient to present the case.</p> <p>3. Appeal and ebbob, § 864*—what is duty of court of review as to searching record. Á'court of review may search the record to find reasons for affirming but is not required to do so in order to find reasons for reversing, where an abstract is insufficient.</p> <p>4. Appeal and ebbob, § 1752*—when judgment will be affirmed. Abstract and additional abstract held to be insufficient to show the judgment stated in brief appealed from was erroneous, so as to warrant reversal of the judgment.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence—when expert knowledge is unnecessary. The witnesses were qualified to testify to benefits received by plaintiff from defendant’s work without being shown to have expert knowledge, in an action by one drainage district against another under sections 8 and 9 of the Act of 1913 [Callaghan’s 1916 St. Supp. If 4461(8), (9)] to recover the proportional amount of the cost of the construction of an outlet.</p> <p>2. Appeal and eerob, § 1498*—when improper exclusion of evidence is harmless error. In an action by one drainage district against another to recover the proportional amount of the cost of construction of an outlet for both districts, the exclusion of certain maps and profile held not reversible error where, other evidence established the facts to be shown by such maps and profile.</p> <p>3. Deainage, § 51*—when benefits to drainage district before its organization are properly shown in action against adjoining district. Benefits accruing to the lands of a drainage district before it was organized were properly shown under section 9 of the Act of 1913 [Callaghan’s 1916 St. Supp. If 4461(8), (9)], in an action under that section by such district against an adjoining organized district, to recover the proportional amount of the cost of construction of an outlet for both districts.</p> <p>4. Deainage, § 51*—what damages may be recouped by defendant in action by one drainage district against another to recover proportion of cost of construction of outlet. Evidence of damage to the upper drainage district by work done by the lower district, in an action by one drainage district against another, under sections 8 and 9 of the Act of 1913 [Callaghan’s 1916 St. Supp. If 4461(8), (9)], to recover the proportional amount of the cost of construction of an outlet, held properly admitted as set-off or recoupment.</p> <p>5. Deainage, § 51*—when evidence shows benefit to defendant drainage district from improvements by plaintiff district. Evidence held sufficient to warrant the finding that the drainage improvements made by plaintiff had benefited and not damaged defendant, in an action by one drainage district against another, under sections 8 and 9 of the Act of 1913 [Callaghan’s 1916 St. Supp. If 4461(8), (9)], to recover the proportion of the cost of construction of an outlet for the use of both districts.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations, § 97*—what is right of city as to revolting ordinance. A city council has no power to bind the city by an ordinance providing that any street railway franchise thereafter granted should be subject to the grantee paying to the city, for the use of contiguous property owners who had paid a special assessment for the paving of the street occupied by such grantee, a ratable proportion of the cost of the paving for the part of the street so occupied by the grantee, so as to deprive succeeding city councils of the power to repeal such ordinance, either expressly or by implication, or to depart from its terms.</p> <p>2. Stbeet bailboads, § 35*—what construction given ordinance relating to payment by street railway of cost of paving street to city for benefit of property owners. Where a declaration alleged that a city council had passed a certain ordinance providing that the grantee of any street railway franchise thereafter granted should pay to the city for the use of the property owners who had paid assessments for the paving of' the street occupied by the grantee the cost of the paving for the part of the street so occupied, and that 18 years after plaintiff had paid such assessment as such property owner a franchise was granted by the defendant city without such payment by the grantee to the city of the full cost, but only 25 per cent, thereof of that part of the paving occupied by the grantee, held, on demurrer, that to so construe such ordinance as to apply after such lapse of time from the laying of the pavement would be so unreasonable as to make the ordinance void, as the court judicially knows such pavements,' brick, do not last forever but wear out.</p>

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

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>Evidence, § 265*—when sale slip memorandum of seller of parol contract of sale is inadmissible. A sale slip memorandum, made by the seller of a motor truck, of a parol contract of sale, from which the seller made up his account books, was not competent evidence of the facts purported to be recited therein as to the terms of the sale, where it was not made in the presence of the buyer or acquiesced in by him, in an action to recover the purchase price, wherein the question was whether the sale was conditional or unconditional.</p>

<p>Abstract of the Decision.</p> <p>Theatebs and shows, § 4*'—when death of spectator at motor-dome is shown not to be due to negligence. In an action to recover for the death of a spectator of motorcycling in defendant fair association’s motordome, due to a motorcycle rider being precipitated over the guardrail while deceased was standing on a walk at the top of the motordome at a place not reserved for spectators, evidence held insufficient to show that the motordome or motorcycle were defective or that the driver was incompetent, and that the death of deceased was not due to any negligence of defendant, there being evidence that some cigar ashes fell into the pit and got into the driver’s eyes, causing him to lose control over the machine and to be hurled from it, causing the injuries.</p>

<p>1. Conflict of laws, § 36*—when law of forum governs as to statute of limitations in action on note. The limitation law as to an action on a promissory note made in one State and payable in another was that of the forum, although neither party at the time of the making of the note was a resident of the State of the forum.</p> <p>2. Limitation of actions, § 79*—when letter written after running of statute is insufficient to remove tar. A letter written by the maker of a promissory note after the statute of limitations had run thereon, referring to the writer’s hard circumstances and that he had debts which must be paid and expressing the hope that things might change for the better at no. distant day and the wish to help the payee of the note, was not such an express and unconditional promise to pay the note and did not show a present or future intention to pay it as to remove the case from the operation of the statute, and was not a recognition of the debt.</p> <p>3. Limitation of actions, § 86*—how promise to pay harreó, note may riot he raised. A promise to pay a note after the running of the statute of limitations thereon cannot be raised by implication of law, a new promise in writing being necessary.</p>

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

<p>Abstract of the Decision.</p> <p>1. Malicious prosecution, § 13*—when advice of counsel affords protection. The advice of competent counsel made upon a full and fair disclosure of all the facts and circumstances involved in the case in which the advice of such counsel is sought is a justification for prosecution by the party advised and protection to him against being answerable in damages for malicious prosecution.</p> <p>2. Malicious prosecution, § 75*—when evidence shows probable cause to believe that plaintiff was guilty of crime. Evidence held sufficient to show that there was probable cause to believe that plaintiff was guilty of conspiracy and embezzlement with which he was charged on the complaint of defendant and that defendant might prudently have been so advised by his counsel for prosecution of plaintiff, in an action for malicious prosecution.</p> <p>3. Malicious pjbosecution, § 65*—what is not evidence of malice in prosecuting criminal case. The fact that defendant, in an action for malicious prosecution, exhibited some temper in discussing the supposed delinquencies of plaintiff was not' evidence of malice, where defendant had instituted the prosecution of a criminal case upon advice of competent counsel on a full and fair statement of all facts within defendant’s knowledge or which he could obtain on reasonable inquiry. ^</p> <p>4. Malicious prosecution, § 65*—what is effect of termination of criminal prosecution as proof of malice or want of probable cause. The termination of a criminal prosecution in plaintiff’s favor, on account of which an action for malicious prosecution is brought, did not tend to prove either the element of malice or want of probable cause.</p>

<p>1. Execution, § 113*—when may not be recalled or quashed. The County Court had no power, right or jurisdiction to recall or quash an execution issued on its judgment in favor of defendant on a set-off, notwithstanding a subsequent judgment in the Municipal Court for the same amount on garnishee process against the plaintiff and in favor of the defendant for the use of another.</p> <p>2. Evidence, § 112*—what is best evidence of judgment. A judgment cannot be proven by the affidavit of one who has examined the record, the best evidence being a certified copy thereof, and, when same is available, secondary evidence is excluded.</p> <p>3. Execution, § 114*—when notice to adverse party of motion after is essential. A court has no jurisdiction to enter an order after judgment quashing an execution, upon motion, without notice to the adverse party.</p> <p>4. Appeabance, § 10*—what does not constitute for client. The filing of a petition claiming an attorney’s lien upon a judgment in favor of a client and notice thereof’ to the judgment debtor cannot be construed as an appearance for the client but for the attorney’s individual interest, on motion by the debtor to quash execution issued on the judgment.</p>

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

<p>Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations—what is building from, which owner must remove ashes at own expense under ordinance. Under section 1000 of the Municipal Code of Chicago, providing that it shall be the duty of every person occupying, operating or controlling any building which is heated by steam or hot water, or in or about which combustibles are used or ashes produced, to remove collected ashes from the premises at his personal expense at such times and in such manner as shall be directed by the commissioner of public works, and excepting cases where vessels for ashes are required by section 995, dealing with buildings used for residential purposes and buildings containing less than 5 flats; an apartment building heated by steam containing 27 flats is a building from which the owner thereof is required to remove the ashes at his own expense.</p> <p>2. Municipal corporations-—what is duty of city as to removal of ashes from place of property owner. A city, in the absence of legislation assuming the responsibility, cannot be compelled to remove ashes from the place of a property owner, since the duty to make such removal rests primarily upon the owner or occupant.</p> <p>3. Municipal corporations, § 83*—how ordinance should he construed. An ordinance should be construed so as to give all parts thereof effect, if possible.</p> <p>4. Mandamus, § 6*—when will not lie to compel the removal of ashes from premises of property owner. Mandamus will not lie to compel the removal of ashes from the apartment premises of a property owner by a city where there is no ordinance assuming the liability, since such owner is not entitled of right to such service, and it is immaterial that an ordinance is discriminating and invalid in providing for the removal of ashes from a certain class of residences free of charge.</p>

<p>1. Appeal and bbbob, § 178*—when freehold is involved. In a partition suit a freehold is involved, and an appeal from .the trial court must he taken directly to the Supreme Court and not to the Appellate Court.</p> <p>2. Appeal and bbbob, § .1140*—when leave granted to withdraw record, abstract and briefs in suit improperly brought to Appellate Gomrt. Where an appeal in a partition suit, involving a freehold, is taken to the Supreme Court and an appeal bond given conditioned upon the affirmance of the judgment in the Supreme Court, but for some reason unknown the record, abstract and briefs are filed in the Appellate Court, which has no jurisdiction of a freehold, the cause will be stricken from the docket with leave to withdraw the record, abstract and briefs for the purpose of filing the same in the Supreme Court.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Mastín M. Gkidley, Judge, presiding.</p>

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

<p>1. Bills and notes, § 431*—what is not evidence of delivery off note on condition explainable by parol testimony. "Where defendant, an insurance agent, and a depositor in plaintiff’s bank, gave his note to the bank, which discounted same and passed the amount to his credit, whereby his check thereon in payment of the insurance premium due his company on insurance taken out through him by a vice president of the bank was paid, evidence that such vice president had, under an agreement between him and another vice president of the bank and defendant at the time of thé execution of the note, orally agreed to pay same, would not constitute evidence of delivery of the note on such a condition as may be explained by parol testimony, and had no other import than to vary the provisions of defendant’s written promise to pay .it.</p> <p>2. Bills and notes, § 431*—when provision of Negotiable Instruments Act that delivery of note may be shown to be conditional is inapplicable. Section 16 of the Negotiable Instruments Act (J. & A. IT 7655), providing that the delivery of a note may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring property in the instrument, is. not applicable to a case where defendant gave his note to plaintiff’s bank, which discounted same and passed the amount to his credit.</p> <p>3. Novation, § 1*—what does not constitute. There was no novation where defendant, an insurance agent, in order to secure a sufficient deposit account in plaintiff’s bank whereby his check in payment of an insurance premium on insurance taken out through him by a vice president of the bank might be paid, gave his promissory note to the bank, which discounted same and passed the proceeds to his account accordingly whereby such check was paid, under an agreement made at the time of the execution of the note between defendant and such vice president and another vice president of the bank that the former vice president taking out the insurance should pay the note.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Peter C. Walters, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 69*—when immaterial whether plaintiff is creditor of insured. Whether plaintiff was a creditor of the insured, in life policies made payable to plaintiff as a creditor, was irrelevant in a suit on such policies, where the insured took out the policies and paid the premiums thereon, as under such circumstances he could make them payable to a stranger.</p> <p>2. Appeal and ebbob, § 367*—When question not made an issue is not revievoable. The question of breach of warranty as to statements in an insured’s application for insurance not made an issue by the pleadings, was not reviewable, even though instructions were given thereon at defendant’s request and even though plaintiff urged that the alleged warranties must be taken as representations, in an action to recover on the policy.</p> <p>3. Evidence, § 165*—What constitute self-serving statements by an insured. The admission to rebut defendant’s evidence as to plaintiff’s state of health at the time of delivery to him of an insurance policy sued on, of copies of his applications for insurance in other companies prior to his application for the policy sued on, and of the medical examiner’s reports accompanying same, was prejudicial error, as such were self-serving statements and inadmissible, in an action to recover on the policy under an issue as to the applicant’s prior state of health.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. John R, Newcomeb, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Attorney and client, § 135*—when evidence sustains finding as to value of legal services. Evidence held to support a special finding of $224 as the value of defendant’s legal services, where the testimony was a mere approximation of the value of the services and. the estimates varied from $26 to $500.</p> <p>2. Bills and notes, § 420*—when evidence properly excluded as irrelevant in action on note. Parts of defendant’s letter to plaintiff replying, to plaintiff’s letter demanding payment of defendant’s note which consisted of defendant’s self-serving statements and charges reflecting upon plaintiff’s character, which had no bearing upon the issues in the case, held, properly excluded, in an action on the note.</p> <p>3. Appeal and erbob, § 1491*—when exclusion of evidence is harmless error. In an action on a note, in which defendant claimed a set-off for legal services performed in proceedings before a justice of the peace, the exclusion of the record of the proceedings offered to corroborate defendant’s testimony as to the number of continuances taken in the case before the justice of the peace, while improper, was not reversible error, defendant’s testimony on the point not being positively denied by any of plaintiff’s witnesses.</p>

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

<p>Garnishment, § 35*—what wages are not subject of. A seaman employed- on a steamship operated upon the Great Lakes is within section 12 of the Seaman’s Law, approved-March 4, 1915, providing that no wages due or accruing to any seaman or apprentice shall be subject to attachment or. arrestment from any court, and such, wages are not garnishable.</p>

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

<p>1. Husband and wife, § 264*—when evidence sustains bill for separate maintenance. Evidence held sufficient to sustain a bill for separate maintenance, where there was no evidence showing complainant ever voluntarily consented to a separation or deserted defendant or was guilty of conduct justifying divorce or of any fault legally sufficient to defeat her right to separate maintenance, and defendant had absolutely refused to live with her.</p> <p>2. Husband and wife, § 219*—when husband has no right to cast off wife. The law does not permit a husband to cast off a wife because she has disagreed with him as to the manner in which the children shall be educated, or because- with his acquiescence and consent she has lived with them in Europe, or because she has written to him letters which, although harsh and unwise, show no desire to destroy, or legitimate tendency to disrupt, the marital relation.</p> <p>3. Husband and wife, § 217*—when wife is guilty of such fault as prevents suit for separate maintenance. A wife may be guilty of such fault as would prevent her from maintaining a suit for separate maintenance, first by conduct on her part which would give the husband just reason for divorce, second, by voluntarily consenting to a separation, or third, by desertion, although the time has not elapsed which would give the husband cause for divorce' on that ground.</p>

<p>1. Master and. servant, § 98*—how section of Factory Act relating to removal of dangerous fumes arising from any process or injurious dust construed. The phrase “of a character injurious to the health of the persons employed, which is created in the course of a manufacturing process,” used in section 12 of the Factory Act (J. & A. If 5397), providing that “all poisonous or noxious fumes or gases arising from any process, and all dust of a character injurious to the health of the persons employed, which is created in the course of a manufacturing process * * * shall be removed,” etc., refer to and modify the preceding word “dust” and not the preceding words “fumes or gases,” making the true intent and meaning of the sentence to be that all poisonous or noxious fumes or gases arising from any process and also all dust of such described character shall be removed.</p> <p>2. Master and servant, § 98*—mandatory effect of section of Factory Act relating to removal of dangerous fumes or injurious dust. Section 12 of the Factory Act (J. & A. If 5397), providing thát poisonous or noxious fumes or gases arising from any process and all dust of a certain' character which is created in the course of- a manufacturing process within a factory, mill or workshop “shall be removed, as far as practicable, by either ventilating or exhaust devices,” defines what constitutes negligence and is mandatory.</p> <p>3. Master and servant, § 685*—when evidence shows negligence per se in violation of Factory Act as to removal of dangerous fumes or dust. Evidence held to show negligence per se under section 12 of the Factory Act (J. & A. 1f 5397), requiring the removal, as far as practicable, by either ventilating or exhaust devices, of poisonous or noxious fumes or gases arising from any process, where deceased was killed by hydro-cyanic gas in endeavoring to rescue fellow employees from a tank which contained no ventilating or exhaust devices.</p> <p>4. Master and servant, § 190*—what does not constitute violation of order of superior officer as to change in appliances or materials. The adding of an additional outlet to a tank similar to others already existing, for the purpose of draining the contents of the tank, by defendant’s foreman, held not to violate an order given him by his superior officer that no changes were to be made in the materials used in the manufacture of anything in that department or the appliances without consulting defendant’s superintendent.</p> <p>5. Master and servant, § 190*—when foreman is not volunteer in interpreting order of superior as to change in appliances or materials. The ordering by defendant’s foreman that a certain tank under his supervision should be cleaned out did not make him a volunteer as to an order given him by his superior officer that no changes were to be made in the materials used in the manufacture of anything in that department or the appliances without consulting defendant’s superintendent, as the question whether the proposed work was within the rule of the order was one it was necessary for him to decide, and he could misunderstand, misapprehend, misinterpret or disobey it without becoming a mere volunteer.</p> <p>6. Master and servant—when duty lies upon foreman to endeavor to save employees placed in dangerous position. Where defendant’s employees were placed in a perilous position while working within the scope of their employment, held that defendant and plaintiff’s decedent, as defendant’s foreman, had the duty to do everything that gave promise of saving the employees’ lives, regardless of difficulty or expense, in an action to recover damages for the death of decedent while attempting to save the employees.</p> <p>7. Workmen’s Compensation Act, § 2*—what is effect of electing not to pay compensation under. If defendant’s negligence caused the peril of its employees from which plaintiff’s intestate as defendant’s foreman tried to rescue them, defendant would be liable notwithstanding the intestate may have gone outside of the scope of his authority in doing so, in an action for damages against an employer who had elected not to pay compensation under the Workmen’s Compensation Act.</p> <p>8. Master and servant, § 760*—when question for jury whether negligence of master proximately contributes to death of servant. Whether defendant’s negligence in violation of section 12 of the Factory Act (J. & A. 5397), requiring removal as far as practicable of certain poisonous or noxious fumes or gases and certain dust in a factory, mill or workshop, proximately contributed to the death of plaintiff’s intestate, held to be a question for the jury, even though defendant could not foresee its negligen.ee would result in the particular accident.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Cook county in Gen. No. 22,770. Error to Circuit Court of Cook county in Gen. No. 22,921; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Evidence, § 167*—what is not evidence of acquiescence in facts stated in letter. The mere fact that a letter received is not answered is not evidence of acquiescence by the party receiving it in the fact stated in it.</p> <p>2. Evidence, § 164*—when letter is not admissible in evidence. A letter is not admissible in evidence on behalf of the writer merely because it was in reply to a letter from another party.</p> <p>3. Evidence, ' § 165*—what does not make self-serving letter, admissible. A self-serving letter written by one party is not made admissible in evidence on his behalf by his first offering in evidence a self-serving letter written by another party to which the former letter was a reply. ' . , 3'-,. ,</p> <p>4. Evidencie, § 164*—when reply to letter operating as admission against interest is inadmissible. Although defendant’s letter was admissible in evidence when offered by plaintiff as an admission against interest, such admission would not make competent or relevant plaintiff’s reply thereto when offered by him.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Peter C. Walters, Judge, presiding.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding.</p>

<p>1. Master and servant, § 690*—when evidence shows machine to be defective. Evidence held to warrant the finding that the machine upon which plaintiff was employed in defendant’s machine shop at the time she was injured was defective, and to establish almost a case of res ipsa loquitur, where her testimony that she had complained of it to the foreman the same morning was undenied, notwithstanding other witnesses who saw the machine immediately after the accident testified it was in good condition.</p> <p>2. Master and servant,, § 361*—when servant does not assume risk of injury from machinery. Where plaintiff, an employee in defendant’s machine shop, was between 15 and 16 years of age, young and inexperienced, and not sufficiently familiar with the complicated and swiftly-moving apparatus upon which she was working when she received her injury complained of to appreciate and realize the danger to which she was exposed in so working, held that she did not assume the risk in continuing work after discovering the machine did not do its work properly and reporting it to the foreman of the shop, her complaint not appearing to arise from the thought that she was in personal danger.</p> <p>3. Witnesses, § 239*—what evidence is admissible on redirect examination. Where defendant’s adjuster testified on cross-examination, in an action by a servant for personal injuries, that nothing was said about an adjustment of plaintiff’s case at the time plaintiff signed a certain statement purporting to set forth a history of her accident, held that other parts of the conversation were admissible on redirect examination with a view to showing plaintiff’s reason for signing the statement.</p>

<p>1. Municipal Court oe Chicago, § 19*—when no abuse of discretion in refusing to vacate judgment. Where, on the return day of a summons, to which defendant had prior thereto filed his appearance and demand for a jury trial, the case was transferred by another judge of the Municipal Court than the one then holding court in the branch' room to which the summons was made returnable, and was again the next day transferred to a third judge, who on the same day transferred it to a fourth judge, who thereupon tried the case before a jury, and judgment was entered against the defendant and execution issued, and three days later defendant served plaintiff with notice of motion to vacate and set aside the judgment, supported by affidavit, claiming to have been misled into not appearing at the trial by a publication in the Daily Municipal Court Record on the evening of the return day of the summons of a purported order, which was not in fact made, of the judge then holding court' in the branch room to which the summons was made returnable that the case was on the next jury calendar, held that there was no abuse of discretion in overruling the motion.</p> <p>2. Trial—necessity of diligence in conduct of legal proceedings. Great diligence by one party to litigation can never he said to he a justification for or a condonation of negligence on the part of another party thereto, since in the prosecutidn and conduct of all legal proceedings the law requires reasonable diligence.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.</p>

<p>1. Evidence, § 67*—when evidence that parties other than defendant rented premises is admissible. Where defendant was sued upon an alleged oral agreement with plaintiff to rent a certain building from plaintiff and conduct therein a saloon and to purchase beer from plaintiff for the business, evidence offered by defendant that other parties, and not he, rented the building and conducted the business was competent, and defendant was not limited to a denial of the alleged agreement.</p> <p>2. Evidence, § 67*—when of collateral facts is admissible. Whenever there is a conflict in the evidence relevant to the issue, evidence of collateral facts which have a direct tendency to show that the evidence of the one side is more reasonable and therefore more credible than that of the opposite side is admissible.</p> <p>3. Frauds, Statute of, § 41*—when oral lease is void. An oral lease for two and one-half years is void, even though possession of the premises is taken for a part of the time.</p> <p>4. Assumpsit, Action op, § 59*—when tenant liable for use and occupation. A tenant occupying premises under a void oral lease for two and one-half years is liable for use and occupation and not for rent under the lease.</p> <p>5. Municipal Court op Chicago, § 13*—when statement of claim amendable. A statement of claim based upon a void oral lease for two and one-half years, held subject to amendment for recovery for use and occupation.</p>

<p>1. Equity, § 218*—what objections to bill may be urged under general demurrer. Where a general and a special demurrer are filed, no question as to the form of the hill demurred to can he raised other than the special grounds mentioned, but any objection that goes to the substance may be urged , under the general demurrer.</p> <p>2. Mechanics’ liens, § 184*—when bill is sufficient. Where a bill was filed under the Mechanics’ Lien Law against the owner in fee of certain lands and his lessee and sublessee, seeking to enforce a lien for materials furnished by complainant to the sub-lessee for the erection of a building'and improvements on the lands, to which was attached and made a part thereof, the lien filed by complainant in the office of the clerk of court setting up that the sublessee was then erecting the buildings and improvements on the lands with the knowledge of the owner, held that this was sufficient to show "that the materials were furnished with the knowledge of the owner, notwithstanding the bill itself may have been insufficient to ‘show the fact.</p> <p>3. Mechanics’ liens, § 184*—when Mil to enforce is sufficient. Bill to enforce a mechanic’s lien, with statement of lien attached thereto filed with the clerk of the court, giving the several dates at which it was agreed the materials claimed for should be furnished, when they were furnished, and stating that the work was to be finished within'a reasonable time and the amount agreed to be paid, held to comply with "section 11 of the law (J. & A. V 7149), providing that a hill or petition should contain a brief statement of the contract on which it was founded, the date, when made, and when completed, if not completed why, the amount due and unpaid, a description of the premises subject to the lien, and such other facts "as may be necessary to a full understanding of the rights of the parties.</p> <p>4. Mechanics’ .liens, § 102*—when affidavit to statement of claim is indefinite. Affidavit- to a statement of claim for a mechanic’s lien setting up that the statement is true, that all material and labor mentioned were furnished to the defendant at the times and for the prices stated, and that the above and foregoing is a just and true statement of the material, labor and services furnished and performed as set forth, held to be ambiguous and indefinite in itself but sufficient as part of a bill seeking to enforce the lien, to which no special demurrer setting up deficiency of the affidavit was filed.</p> <p>5. Mechanics’ liens, § 103*—when special demurrer to Mil necessary. Any deficiency in an affidavit to a statement of claim for a mechanic’s lien as part of the bill must be reached by a special demurrer setting up such fact.</p> <p>6. Equity, § 345*—when error to dismiss Mil for want of equity. Even where the court may not be able to fully comprehend the case as set forth in a bill and pronounce upon it with confidence, still if the court can see from what is stated that- there is equity in the hill, it is error to sustain a demurrer to the whole of the bill and dismiss it for want of equity.</p>

<p>1. Indemnity, § 24*—when evidence as to malpractice is immaterial in action on indemnity policy. Evidence that if there was any malpractice in plaintiff’s treatment of a certain patient for a certain injury it would occur within two or three days after the first treatment, held to be immaterial in view of defendant’s admission that it did not claim there was any malpractice in such treatment, in an action to recover under a policy of indemnity insurance of plaintiff against loss from liability for damages on account of bodily injuries or death suffered by any person or persons in consequence of any malpractice, error or mistake of plaintiff as a physician, or from any suit against plaintiff to enforce any such claim, whether it was groundless or not.</p> <p>2. Indemnity, § 11*—when insurer liable for amount paid to settle claim for malpractice. Where plaintiff’s treatment as a physician of a certain patient was commenced some time before and continued for several weeks after defendant issued to him a policy of indemnity insurance against loss from liability for damages on account of bodily injuries or death suffered by any person or persons in consequence of any malpractice, error or mistake of plaintiff and from any suit against him to enforce any such claim, whether groundless or not, defendant agreeing in such policy to defend any such suit, and as a consequence of defendant’s refusal to defend a suit brought by such patient charging plaintiff with malpractice in such treatment both prior to and after the issuance of the policy, plaintiff defended and settled the claim sued on, held that defendant should be required to reimburse plaintiff for the amount paid by him on account of the suit, in an action on the policy.</p> <p>3. Indemnity, § 11*—when instruction on continued liability under indemnity policy is erroneous. An instruction that where a physician has an undischarged case at the time of the issuance of a policy of indemnity insurance against loss from liability for damages due to his malpractice, error or mistake, and the patient continues under the physician’s care after the policy is issued, this will constitute continued liability, held to be erroneous, as there would be no liability under the policy except for malpractice, error or mistake committed after the date it was issued, and it would make no difference how long the patient continued under the physician’s care unless it was claimed the malpractice, error or mistake occurred after the policy issued.</p> <p>4. Appeal and ebbob, § 1779*—when judgment not reversed because of erroneous instructions. Where a policy of indemnity insurance was issued to plaintiff agreeing to indemnify him against loss from liability for damages due to his malpractice, error or mistake as a practicing physician and to defend any suit brought against him on any such claim, whether it was groundless or not, and defendant refused to defend a certain suit brought' against plaintiff on the ground that plaintiff’s alleged malpractice involved in the suit was prior to the issuance of the policy, although it was alleged in the suit that the malpractice continued subsequently thereto, held, in an action on the policy, wherein defendant admitted plaintiff was guilty of no malpractice and that the amount paid by him in settlement of the suit was reasonable, that judgment should not be reversed because of erroneous instructions, as it appeared there was no defense.</p>

<p>. Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>1. Appeal and error, § 578*—when exception to judgment is unnecessary. NTo exception is necessary to a judgment as to an error appearing on its face, in a case tried by the court without a jury, to secure a review of such error, especially since the amendment of section 81 of the.Practice Act (J. & A. f 8618).</p> <p>2. Judgment, § 200*—when against one of defendants sued jointly is erroneous. Where a declaration or statement of claim charges a joint liability, and one of the defendants shows that he was never liable, a recovery cannot be had against the other without dismissing the defendant not liable and amending the declaration or statement of claim by omitting the charge of joint liability, unless one of the defendants makes a personal defense, therefore a judgment, in such a case, in favor of the nonliable defendant and against the other is erroneous, nor does the fact that the former was improperly joined constitute an exception to the rule.</p>

<p>Abstract of the Decision.</p> <p>1. Indictment and infobmation, § 32*—what does not invalidate indictment. Charging in an indictment an act which is by statute a misdemeanor to have been “feloniously” done, does not invalidate the indictment if it is in other respects without fault.</p> <p>2. Banks and banking, § 64*—when indictment is against individual bankers. Where an indictment recited in the inducement part that the defendants were partners in the banking business but in the charging part averred the act of receiving deposits while knowingly insolvent as that of the defendants as individuals, the indictment was against them as individuals and not as a firm.</p> <p>3. Banks and banking, § 64*—admissibility of partnership’s books in criminal prosecution. The books of a banking partnership are admissible, against the partners in a prosecution against them as individuals for receiving deposits while knowingly insolvent.</p> <p>4. Banks and -banking, § 64*—when evidence of depositors as to loss of deposits admissible. Evidence of numerous depositors in a private bank conducted as a partnership that.they had made deposits in the bank and had lost them, held admissible in a prosecution against the individual partners for receiving deposits while insolvent, where the defendants did not concede the facts testified to.</p> <p>5. Banks and banking, § 64*—what admissible as part of res gestx in criminal prosecution. Transactions prior to receipt of a deposit, charged in an indictment to have been while defendants were knowingly insolvent, in which defendants failed to pay over to the parties entitled to same or misappropriated certain collections or knowingly made false statements to induce deposits, held admissible as parts of the res gestx and tending to prove the issue under the indictment.</p> <p>6. Banks and banking, § 64*—when witness is competent to testify as to insolvency of bank. Evidence of one who was in charge for a receiver of a bankrupt bank as to the insolvency of the bank, gathered from his possession and knowledge of all of the bank’s assets and books, held admissible and competent and not to invade the province of the jury, where the witness was shown to have had experience in such matters and gave detailed information regarding the assets and books and a correct definition of insolvency.</p> <p>7. Banks and banking, § 64*—when finding of insolvency warranted. Certain books, papers and documents of a bank charged in an indictment to have been insolvent at a time a certain deposit was received, held to warrant a finding of insolvency independent of the competency of the witness testifying to same.</p> <p>8. Banks and banking, § 64*—when evidence as to value of leasehold of insolvents properly excluded. Evidence as to the value of a certain 99-year leasehold interest owned by the insolvent defendants, charged in an indictment' with receiving a certain deposit while knowingly insolvent, based upon a contemplated building upon the land which was not yet constructed or contracted for and upon the estimated rentals of the building when it should be constructed, held properly excluded.</p> <p>9. Banks and banking, § 64*—when value of hank stock as assets cannot he calculated. In a criminal prosecution for receiving deposits while knowingly insolvent, the value of certain bank stock as assets of insolvent defendants held too uncertain to be capable of calculation, where certain banks of ample means had refused to retain same by paying assessments thereon and other banks of small means had retained same and assumed payment of such assessments.</p> <p>10. Banks and banking, § 64*—when evidence in criminal prosecution shows payment of draft. In a criminal prosecution of private bankers for receiving deposits while insolvent, evidence held sufficient to show payment of a draft deposited with defendants, where it was shown the bank on which the draft was drawn paid same and defendants thereafter sent the depositor a note promising to pay the amount in full, and entry of the amount was made by defendants on their bank books and on the depositor’s pass book, and defendants received credit for the draft through their clearing-house representative, and the draft itself in evidence was marked “paid.”</p> <p>11. Banks and banking, § 64*—when knowledge of insolvency shown. Evidence held to sustain the finding that defendants were insolvent and knew they were so at and for a long time prior to the time they received the deposit charged in the indictment against them.</p> <p>12. Banks and banking, § 64*—duty of hanker to know whether insolvent. A private banker holds himself out to the public and to his customers as being possessed of money and of capital, and, therefore, to be safely trusted, and it is his duty to know, and he is under all ordinary circumstances bound to know, whether he is solvent, and it is criminal negligence of him not to know of his insolvency.</p> <p>13. Banks and banking, § 64*—propriety of instruction as to form of verdict in criminal prosecution. In a criminal prosecution of private hankers for receiving deposits while knowingly insolvent, an instruction as to the form of the verdict in the language of the statute held sufficient</p> <p>14. Banks and banking, § 64*—what is proper fine for receiving deposit while Tcnowingly insolvent. The fixing in the verdict, on conviction under an indictment against persons conducting a banking institution for receiving a deposit while knowingly insolvent, of a fine at an amount which was twice that of the deposit, held sufficient to comply with the statute.</p> <p>15. Banks and banking, § 64*—what is proper punishment for receiving deposits while Tcnowingly insolvent. The provision of the statute that the punishment on conviction for receiving deposits in a hanking institution while knowingly insolvent shall he a fine of double the amount of the deposit is mandatory and cannot he dispensed with hy imposing no fine, but a jury may dispense with the additional part of the punishment of imprisonment authorized hy the statute.</p> <p>16. Banks and banking, § 64*—extent of punishment for receiving deposits while insolvent where several defendants. The punishment on conviction under an indictment against several defendants as hankers for receiving a deposit while knowingly insolvent is as to each defendant, and the fine is the amount fixed by the statute.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Automobiles and gabaqes, § 6*—what Constitutes fatal variance in action for injury to automobile. Where plaintiff alleged ownership of a certain automobile, in an action to recover damages for injuries to same by a collision with defendant’s automobile, and offered proof showing ownership in another, held that the variance was fatal to a recovery, notwithstanding there was no plea denying ownership in plaintiff.</p> <p>2. Automobiles and garages, § 6*—what is effect of owners of cars being in pari delicto. Where the parties, in an action to recover damages for injuries to plaintiff’s automobile from a collision with defendant’s automobile, are in pari delicto, the law will not afford either of them relief.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1078*—what is effect of failure to assign cross errors. Complainant, not having assigned cross errors, was estopped from questioning the trial court’s jurisdiction to adjudicate the claim of one appellant as owner of an equity of redemption in the premises purchased by complainant under a first trust deed foreclosure as to certain rents and profits collected and held by a receiver in the foreclosure suit, on the ground that such appellant had not been made a party to the suit but had appeared therein by his own petition after sale to complainant, claiming an equity of redemption as purchaser under a prior foreclosure sale of a second trust deed upon the same premises.</p> <p>2. Mortgages, § 738*—when owner of equity of redemption is entitled to rents and profits. Where it appears that the rents and profits issuing out of' mortgaged premises have not been pledged by the mortgage or trust deed to secure the agreements and promises of the mortgagor! and where it further appears that the owner of the equity of redemption is not the person who executed such mortgage or trust deed, and who is not personally liable for the indebtedness, such owner of the equity of redemption is entitled of right to such rents and profits..</p> <p>3. Mortgages, § 738*—when rents and profits after sale should not Ve applied in payment of deficiency decree. Where a first trust deed, containing the usual provisions for sale of the premises and for the application of the amount received therefor to the secured indebtedness, also provided that “any rents that may be collected after such sale and before the time of redemption expires” should be paid “to the purchaser or purchasers of said premises at such sale,” held that the language quoted was too uncertain and vague to authorize a holding that the rents and profits accruing after sale in the hands of a receiver should be applied in payment of a deficiency decree, where the equity of redemption was held by the assignee of a purchaser of the premises under a prior foreclosure of a second trust deed on the same premises.</p> <p>4. Mortgages, § 709*—what interest redeeming owner of equity of redemption liable for. A decree holding that the redeeming owner of the equity of redemption in premises sold under foreclosure should be charged interest on the sum for which the premises were sold from the date of sale to the date of redemption, held proper.</p> <p>5. Mortgages, § 709*—what should be included in tender by redeeming owner of equity of redemption. The tender by the redeeming owner of the equity of redemption in premises sold under foreclosure properly includes taxes theretofore paid, with interest thereon, by the purchaser from whom redemption is made.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1752*—when judgment affirmed for deficiency in abstract. Where appellant fails to comply with rule 18, requiring that abstracts of record must contain abstracts of the pleadings which are sought to be reviewed, and also fails to properly preserve by bill of exceptions the ruling of the trial court complained of, the judgment will be affirmed.</p> <p>2. Judgment, § 104*—when duty of court to default defendant. Where special pleas only were filed to a declaration containing the common and special counts, and none of such pleas went to the common counts, it was the duty of the court to default the defendant.</p> <p>3. Pleading—number of affidavits of merits. It is not allowable under section 55 of the Practice Act (J. & A. f 8592), to file more than one affidavit of merits to a plea to a declaration, notwithstanding different defenses are set up to a part of plaintiff’s claim.</p> <p>4. Pleading, § 153*-—when affidavit of merits is insufficient. An affidavit of merits that plaintiff had accepted one of two notes sued on in satisfaction and payment of the other note, with knowledge of the fact that both notes were given to the payee therein mentioned without consideration, was insufficient, even if plaintiff had received the notes with knowledge that they were given as accommodation papers, as knowledge of this fact alone would not defeat the action.</p> <p>5. Pleading, § 366*—when pleas properly stricken. In an action against the maker of two promissory notes to recover thereon, where an affidavit of merits was properly stricken from the files, held that the pleas, being unsupported, were also properly stricken.</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 88*—when evidence shows insertion of provision for commission at date of contract. Evidence held to sustain the finding that a certain provision, inserted in the contract entered into by defendant for the sale and exchange of certain real estate, for the payment to plaintiff of a certain brokerage commission was inserted therein on the date of the execution of the contract, in an action to recover- the commission.</p> <p>2. Brokers, § 4*—when person not having license may recover under special contract. Evidence held to sustain the finding that plaintiff was not engaged in the real estate brokerage business but to be entitled to receive compensation from defendant under a special contract, notwithstanding his failure to qualify as a licensed broker, In an action to recover a commission on the sale and exchange of certain real estate.</p> <p>3. Brokers, § 90*—when evidence shows procurance of person willing to exchange property. Evidence held to sustain the finding that plaintiff, in an action to recover a commission on the sale and exchange of certain real estate, had procured a person ready, willing and able to exchange properties with defendant.</p> <p>4. Brokers, § 90*—when shorn that plaintiff was ready to procure loan. . Evidence held to sustain the finding that plaintiff was ready, able and willing to procure a certain loan for defendant, required of plaintiff under a certain contract with defendant as precedent to plaintiff’s right to a commission, in an action to recover a commission on the sale and exchange of certain real estate.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 12*—when contract does not lack, mutuality. A contract does not necessarily lack mutuality because it may be one-sided and unfair to one of the parties, where the other party gave a monetary consideration and undertook to give also his services.</p> <p>2. Evidence, § 351*—when parol evidence is admissible to explain contract. Where a certain contract contained contrary provisions as to payment of certain expenses of an undertaking, held that parol testimony was admissible to clear up the question, in an action to recover such expenses.</p> <p>3. Contracts, § 390*—when question of performance is for fury. The question of how far plaintiff performed his contract to give his best efforts in an undertaking whereby he was to recover on an assigned claim of defendant under a grubstake agreement of defendant with her husband, whereby she was to have one-half of the husband’s riches on his return, held to be for the jury.</p> <p>4. Contracts, § 393*—when instruction as to performance is err roneous. In an action on a contract whereby plaintiff was, for a certain consideration, to assist defendant in recovering on a grubstake agreement between her and her husband, under which she was to have one-half of the husband’s riches on his return from the mining regions, an instruction that “best efforts and endeavors in good faith” mean that a man would do in his own case, held to be erroneous, as not necessarily true.</p>

<p>1. Divorce, § 172*—year in which parly may remarry as calendar year. The word “year” used in the statute on “Divorce” (J. & A. If 4126), providing that neither party to a divorce shall marry again within one year from the time the decree was granted, means “calendar year.”</p> <p>2. Time, § 1*—how calendar year computed. In computing time by the calendar year days are not counted, but the calendar is examined and the • day numerically corresponding to that day in the following year is ascertained, and the calendar year .expires on that day less one.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and errob, § 309*—when appeal lies from order dissolving temporary injunction. An appeal lies from an order dissolving a temporary injunction, where the only relief prayed for in the bill is to enjoin proceedings under an execution and the order dissolving the injunction is for want of equity appearing on the face of the bill.</p> <p>2. Injunction—when hill to stay proceedings at law dismissed as without equity. A bill setting forth that complainant, after praying appeal to the Appellate Court and filing appeal bond and bill of exceptions in a certain action at law in which judgment had been entered against complainant, had made settlement in full for the judgment with the judgment creditor and had so notified the latter’s attorney in the action; that the latter had refused to accept a certain tender as his fees in the action, and demanded a larger sum based on a notice of attorney’s lien which had been served upon complainant prior to • complainant’s settlement with the judgment creditor; that the attorney, knowing of the settlement, filed a short record in the Appellate Court, and, after notice to complainant, procured from the Appellate Court a dismissal of complainant’s appeal and assessment of damages against compláinant on which judgment of the Appellate Court execution issued and was served on complainant, and that the Appellate Court had refused to grant complainant relief; that the judgment creditor was insolvent, and that irreparable injury would be done complainant if the execution should be levied and complainant’s property sold thereunder, held to have been properly dismissed for want of equity on dissolution of a temporary injunction granted thereon. _I__</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 153*—what constitutes acceptance of machine sent on trial. .Where a written contract for the purchase of an excavator machine provided that the machine was “to work in clay excavating satisfactory to the” purchaser, and that he should pay a certain amount when the machine was accepted and the balance in 30 days, the payment by the purchaser of the amount named after he had used the machine for 10 days constituted an acceptance of it according to the terms of the contract.</p> <p>2. Sales, § 146*—when machine deemed to work to satisfaction of purchaser. Where a machine is furnished to work to the satisfaction of the purchaser of it, and such work is a matter of common experience, such as ordinary mechanical work, what, in reason ought to satisfy the contracting party in law will he held to satisfy him.</p> <p>'3. Sales, § 148*—necessity of early notice of dissatisfaction with machine. Where a machine is to he satisfactory to the purchaser of it, notice of dissatisfaction or of failure of the machine must he given to the seller at the earliest practicable moment.</p>

<p>Error to the Superior Court of Cook county; the Hon. William Fenimobe Cooper, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Benjamin Bell, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Victor P. Arnold, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. Cavekly, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 25*—when motion to strike case from short-cause calendar made too late. A motion to strike a cause from the short-cause calendar on the ground that it was not placed there on an affidavit hut on a certificate of plaintiff’s counsel comes too late when not made until the case is reached for trial.</p> <p>2. Trial, § 22*—when motion to strike case from short-cause calendar properly denied. The mere fact that a jury is impaneled in a case on the short-cause calendar on one day, and a verdict was not returned until the following day, does not show that a motion to strike the case from the short-cause calendar was improperly denied.</p>

<p>1. Mechanics’ liens, § 33*—when lessor not relieved from liability for mechanic’s lien for alterations and repairs by lessee. The provision in a .lease that the lessee might, upon 10 days’ notice to the lessor, make such changes or alterations in the building as he deemed suitable, provided they did not diminish the value of the building and were paid for by the lessee, does not relieve the lessor from liability to a mechanic’s lien for alterations and repairs by the lessee, even though the notice called for by the provision of the lease was not given the lessor and without regard to whether or not the contractor had knowledge of such provision, where the lessor visited the premises during the course of the alterations and repairs and saw that they were being made and failed to make any objection.</p> <p>2. Landlobd and tenant, § 209*—when alterations in front of building are joint enterprise of lessor and lessee. Under the provisions of a lease that the lessee is to pay for all repairs and alterations, that all alterations and additions to the premises shall remain for the benefit of the lessor unless otherwise provided in the lessor’s consent to their being made and requiring the written consent of the lessor to all material alterations except changing the front of the building, alterations to the front of the building are the joint enterprise of the lessor and lessee.</p> <p>3. Mechanics’ liens, § 33*-—when contractor not estopped to claim lien against leased property. The provision of a lease that, as to alterations of the building which are the joint enterprise of the lessor and lessee, no mechanic’s lien therefor shall attach to the lessor’s interest is void, and knowledge thereof does not estop a contractor for such alterations from claiming a lien against the leased property.</p> <p>4. Mechanics’ liens, § 193*—when no variance between bill and proof. In a suit to establish a mechanic’s lien, held that material variance between the allegations of the bill and the proof was not shown.</p> <p>5. Mechanics’ mens, § 32*—when lessor knowingly permits alterations. Where a lease expressly authorizes certain alterations on condition that the lessor is given 10 days’ notice thereof and the lessee pays therefor, and the evidence shows that she was on the premises while a certain part of the alterations were being made, it sufficiently appears that she “knowingly permitted” such part, even though the required notice was not given her.</p> <p>6. Mechanics’ liens, § 195*-—how value of work may be shown. In a suit to establish a mechanic’s lien, the fair and reasonable value of the work done may be shown by the uncontradicted evidence of complainant as to its fair and reasonable value.</p> <p>7. Mechanics’ liens, § 196*—when balance due complainant shown. In a suit to establish a mechanic’s lien, evidence held sufficient to show what balance was due complainant.</p> <p>8. Mechanics’ liens, § 202*—when lien allowed as to part of items. In a suit to establish a mechanic’s lien, where every item in the contract under which the lien is claimed and which is divisible into separate items is such as is covered by the Mechanics’ Liens Law (J. & A. If 7139 et seq.), and the proof shows that complainant is entitled to a lien as to some of the items, the lien is properly allowed as to such items, • even though, as to others, no right to a lien is established.</p> <p>9. Mechanics’ liens—when payments applied to nonlienable items. In a suit to establish a mechanic’s lien under a contract made up of divisible items, payments will be applied to nonlienable items, so as to leave unimpaired the security of the lien as to such of the items as are lienable.</p> <p>On Petition fob Rehearing.</p> <p>1. Mechanics’ liens, § 32*—when contractor may assume that provision as to notice of alterations by tenant has been complied with. A contractor who has notice of the provision in a lease that the lessor be given notice of alterations by the lessee is warranted in assuming that the provision has been complied with where he sees the owner about the premises in the course of such alterations and the latter raises no objections to them.</p> <p>2. Mechanics’ liens, § 33*—what is effect of knowledge by contractor as to duty of lessee to pay for alterations. A contractor’s knowledge of a provision in a lease that alterations are to be paid for by the lessee does not operate to deprive him of a mechanic’s lien against the property for alterations, especially where the lease provides that alterations shall be the property of the lessor.</p>

<p>1. Appeal and error, § 855*—when certificate of evidence unnecessary. No certificate of evidence is necessary where there is no oral testimony heard by the court, and its decree is based on the master’s report and the evidence submitted therewith.</p> <p>2. Appeal and error, § 735*—what is part of record of trial court. Where no oral testimony is heard by the court and the decree is based on the master’s report and the evidence submitted therewith, such report, including the evidence submitted therewith, is a part of the record of that court which should remain there.</p> <p>3. Appeal and error, § 735*—what should not be included in transcript of record. The original report of the master and the evidence submitted therewith, being a part of the record in the court below, should not be included in the transcript filed in the Appellate Court.</p> <p>4. Appeal and error, § 733*—what papers should remain in lower court. In the absence of a statutory provision or rule of the court of review to the contrary, original papers filed in a cause should remain in the lower court.</p> <p>5. Appeal and error, § 735*—original report of master and evidence may not be inserted in transcript. Rule 13 of the Appellate Court, providing for the inspection of original papers, does not authorize the insertion in the transcript of the original report of the master and the evidence submitted therewith, notwithstanding an order of the trial court permitting such insertion, pursuant to a stipulation of the parties.</p> <p>6. Appeal and error, § 759*—inspection of exhibits. Rule 13 of the Appellate Court, which provides for the inspection of original papers in an action, is intended to apply to exhibits.</p> <p>7. Appeal and error, § 759*—how exhibits brought to Appellate Court. Exhibits brought to the Appellate Court under rule 13 do not come as a part of the record or as a part of transcript, but in connection with the transcript.</p> <p>8. Appeal and error, § 735*—what may not be incorporated into transcript of record. There is no statute or rule of court by which either the original master’s report, the evidence taken and certified to by him or the exhibits introduced in connection with that testimony can be incorporated into the transcript of the record on appeal.</p> <p>9. Appeal and error, § 1749*—when judgment affirmed for incompleteness of record. Where, on appeal, the transcript of the record is incomplete, the decree will be affirmed unless there is manifest error in such part of the record as is properly before the court of review.</p> <p>10. Equity, § 548*—when, evidence need not he preserved hy certificate of. evidence. The rule that, in order to sustain a decree granting affirmative relief, the successful party must, when the facts are not found or recited in the decree, preserve the evidence by a certificate of evidence, does not apply to a decree dismissing a bill for want of equity.</p> <p>11. Appeal and error, § 1199*—when decree dismissing hill on merits not disturbed. A decree dismissing a bill on its merits needs, on appeal, no evidence to support it and must stand unless it affirmatively appears that there was evidence introduced hy complainant or heard at the trial which entitled him to the relief prayed.</p> <p>12. Appeal and error—when original paper inserted in transcript ordered returned to lower court. Where an original paper from the files of the lower court has been improperly inserted in the transcript on appeal, the Appellate Court will direct that its clerk, on the request of either party, detach such paper and return it to the clerk of the court below.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 122*—when copy of contract admissible as secondary evidence. In an action to recover for services alleged to have been rendered under a contract, where, on the hearing, on a motion by plaintiff to order defendant to produce the original contract at the trial defendant’s counsel states in open court that the original document is not in defendant’s possession and that he denies that it ever existed, plaintiff may, on the trial, introduce a copy of the alleged agreement as secondary evidence thereof.</p> <p>2. Municipal Court of Chicago, § 13*—non-necessity of formal pleadings. In cases of the fourth class in the Municipal Court of Chicago, while the statement of claim filed must set forth a cause of action, formal pleadings are not necessary.</p> <p>3. " Municipal Court of Chicago, § 13a*—what is rule as to variance in actions of fourth class. Cases of the fourth class in the Municipal Court of Chicago are governed, as to variance, by the rule, which controls in actions before justices of the peace, that the action is what the proof makes it.</p> <p>4. Municipal Court of Chicago, § 13a*—when variance in action of fourth class does not prevent recovery. Even though the statement of claim in a fourth class case in the Municipal Court of Chicago declares on a written contract while the proof discloses an oral contract or one partly oral and partly written, plaintiff may recover if the statement sets forth a good cause of action.</p> <p>5. Attachment, § 246*—what is sufficient proof to sustain. Where an affidavit for attachment alleges two statutory grounds and defendant denies only one of them in its traverse, the ground not alleged is admitted and is sufficient to sustain a judgment for attachment.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.</p>

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

<p>1. Appeal and ebbob, § 801*—when pleading must be preserved in bill of exceptions. After a pleading is stricken from the files it no longer remains a part of the record, and, to preserve for review the question of the correctness of the court’s ruling in striking it from the files, the pleading itself must be preserved in the bill of exceptions, else it cannot be considered, even though it appears in the transcript as a part of the record.</p> <p>2. Municipal Coubt op' Chicago, § 29*—what subject of review when no affidavit of merits on file. Where a case has been heard without an affidavit of merits on file, the only question presented is whether or not the statement of claim states a good cause of action and whether or not such statement and the testimony submitted to sustain it will support the verdict and judgment entered by the trial court.</p> <p>3. Guaranty, § 1*—when obligation to answer for debt of another is collateral. The obligation of one to answer for the debt of another may be collateral, whether the debt of the other is existing, contemporaneous or subsequent with regard to the time the obligation is assumed.</p> <p>4. Guaranty, § 1*—what is nature of contract of. A contract of guaranty is a collateral undertaking by one person to be answerable for the payment of some debt or the performance of some duty or contract for another person who stands first bound to pay or perform.</p> <p>5. Indemnity, § 1*—what is nature of contract of. A contract of indemnity involves an obligation or duty on the part of the person making it to make good any loss or damage another has incurred or may incur by acting at his request or for his benefit.</p> <p>6. Indemnity, § 1*—how contract of distinguished from contract of guaranty. A contract of indemnity is distinguished from one of guaranty in that in indemnity contracts the engagement is to make good and save another from loss upon some obligation which he has incurred or is about to incur to a third person, and is not, as in a contract of guaranty, a promise to one to whom another is answerable; the promise in an indemnity contract is an original and not a collateral undertaking.</p> <p>7. Guaranty, § 1*—what is rule as to necessity of existing debt to which promise can be collateral. The rule that before a promise can be held collateral it must be shown that there is an existing debt of some other to which it can be collateral is not to be understood as requiring that such debt must be existing at the time the collateral promise is entered into, but as meaning that ‘there must be an actual binding promise of some other person to the creditor, the time when the debt comes into existence being-unimportant, provided it does come into existence.</p> <p>8. Guaranty, § 11*—what is test on issue of original or collateral promise. "Where the issue involved is whether a promise is original or collateral, the question as to when the promise was made with reference to the incurring of the debt is not the test, but the test is whether the person sought to be charged was to be liable at all events or only in case the other failed to pay.</p> <p>9. Guaranty, § 11*—when surety company deemed to have given credit to litigant. A surety company which executes and files a bond for costs for a litigant from whom it demands and receives an •obligation to reimburse it for all costs and expenses to which it may be put by reason of giving such bond, also requiring the litigant to give reasonable assurance, by giving references of his ability to perform such obligation, and which receives payment of the premium on the bond from the litigant, will be held to have given credit to the litigant and not to one who promised it to stand back of any obligation which the litigant might incur .in such behalf.</p> <p>10. Guaranty, § 9*—what controls in determining whether promise is contract of. In determining whether a promise constitutes a contract of guaranty or a contract of indemnity, the intention of the parties controls.</p> <p>11. Guaranty, § 9*—how language construed in determining whether promise intended is contract of. In ascertaining whether a promise was intended as a contract of guaranty or as a contract of indemnity, great weight will be given to the language used in making the promise, and such language will be construed in accordance with the well-known and usual meaning of the words, unless there are facts and circumstances showing that such words were used in a different sense.</p> <p>12. Guaranty, § 1*—when promise is collateral to original obligation. A promise by one to a surety company that if the latter executes and files for a certain litigant its bond for costs in an action, such one “will stand back of any obligation” which the litigant “may incur in this behalf” is collateral to the original obligation.</p>

<p>Abstract of the Decision.</p> <p>1. Injunction, § 304*—when interest allowed defendant for period which foreclosure sale delayed. Where damages are awarded defendant on the dissolution of a temporary injunction against a foreclosure sale, it is proper to allow interest to defendant, for the period the sale was delayed by the injunction, on money borrowed by him to use in buying an interest in the decree, even though the decree carried interest.</p> <p>2. Injunction, § 296*—what damages awarded on dissolution of against foreclosure sale. Where the sale of property on foreclosure is enjoined, damages on the dissolution of the injunction should be computed according to the injury actually sustained, and consideration may be given to the proper amount .which might have been realized if the sale had not been enjoined, the value of money at the time and such other circumstances as tend to show the actual injury sustained.</p> <p>3. Injunction, § 381*-—what need not he shown hy record on appeal from decree awarding damages on dissolution of. On appeal from a decree awarding damages on the dissolution of an injunction, it is not necessary that it appear from the record that the defendant paid or became liable to pay the amount allowed as solicitor’s fees or that the amount allowed was the usual and customary charge for the services rendered. It is sufficient if it appear that the amount allowed was reasonable and fair, in view of the services rendered.</p> <p>4. Attorney and client, § 52*—what constitutes prima facie showing of employment of attorney. Where the record on appeal from a decree awarding damages on the dissolution of a temporary injunction discloses that a certain attorney appeared for defendant, argued the motion to dissolve in his behalf and that the motion was granted, there is a prima facie showing that the attorney was employed by defendant.</p> <p>5. Attorney and client, § 52*—when presumed attorney properly employed. Where there is prima facie proof that an attorney was employed by a party, defendant in proceedings for dissolution of temporary injunction, it will be presumed that he was properly employed until the contrary is shown.</p> <p>6. Injunction, § 321*—solicitor’s fees for procuring dissolution of temporary. An award of a solicitor’s fee of $250 for services in procuring the dissolution of a temporary injunction, held reasonable and fair.</p> <p>7. Injunction, § 296*—cost of advertising foreclosure sale as damages upon dissolution of. On awarding damages on the dissolution of a temporary injunction against a foreclosure sale, it is proper to include the cost of advertising the original sale.</p>

<p>1. Negligence, § 19*—what constitutes an attractive nuisance. A material hoist and the wheel over which the cable used to operate it passes, which are being used in the construction of a building and are visible from the street the building fronts upon, and accessible to children who go in to use it through unprotected openings in the building for windows and doors, constitute an “attractive nuisance.”</p> <p>2. Negligence, § 19*—what„ is part of attractive nuisance. A wheel inseparably connected with a mechanism which constitutes an “attractive nuisance” must be regarded as a part thereof.</p> <p>3. Negligence, § 19*—what does not relieve owner of attractive nuisance from. liaMlity for injury to ohild. One maintaining an “attractive nuisance” is not relieved from liability for injury to a child caused by it by the fact that the child was first attracted to the street, from which the “attractive nuisance” was visible, by the noise of other children and thereafter went upon the premises containing the mechanism.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 322*—when sale to corporation through officer shown. In an action to recover the purchase price of goods sold and delivered, evidence held to support a finding that the goods were purchased by one of defendant’s officers for defendant and not for himself individually, though he gave his personal check in payment.</p> <p>2. Interest, § 18*—when account deemed liquidated. In an action to recover for the purchase price of goods where it is found that a check for the exact amount of the price was given by defendant immediately after the delivery, it is to be inferred that thé purchase price was due at the time of the sale and 'was, therefore, a liquidated account bearing interest from the date of the sale.</p> <p>3. Appeal and error, § 1165*—when contention not reviewed. The Appellate Court will not review a contention which is not made an issue by the pleadings and upon which it is not disclosed by the abstract that the court was called to rule by instructions or otherwise.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 248*—what does not constitute payment of mortgage notes. After the execution by defendant of a trust deed to secure notes, the property was sold to one who agreed to assume the incumbrance and gave notes secured by a mortgage as part of the purchase price which were transferred to plaintiff by defendant; with knowledge of these circumstances the holder at maturity of the notes secured by the trust deed agreed with defendant to relieve him of liability thereon and so notified plaintiff, but such holder subsequently threatening foreclosure, plaintiff purchased the notes from him, such notes bearing an indorsement that they were subject and subordinate to the lien of any note maturing after their maturity, and thereafter foreclosed and procured a sale under the second mortgage. Held, that the purchase by plaintiff of said notes did not constitute a payment and cancellation of the same.</p> <p>2. Mortgages, § 227*—right of mortgagee to treat mortgagor and grantee assuming mortgage as principal debtors. A mortgagee may treat both the mortgagor and a grantee of the latter assuming the mortgage as principal debtors and have a personal decree against both, unless he has consented to accept the grantee as surety, and his rights cannot he affected by any agreement between the mortgagor and the grantee.</p> <p>3. Mortgages, § 119*—when notes may be postponed to lien of another mortgage. The holder of mortgage notes may postpone them to the lien of another mortgage.</p> <p>4. Tendee, § 18*—what is effect of conditional tender of payment. A plea of conditional tender of payment in an action on a promissory note admits that some money was due.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court op Chicago, § 26*—what is not statement of facts. A mere recitation of testimony is not a statement of facts though certified as such.</p> <p>2. Contracts, § 384*—when shown that agreement completed before reduced to writing. In an action to recover for services claimed to have been rendered under a contract, evidence held to support a finding that the agreement was completed before it was put into writing.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.</p>

<p>1. Workmen’s Compensation Act—attorney’s lien upon lump sum payment under Indiana act. Under the Indiana Workmen’s Compensation Act, an attorney’s lien cannot attach to a lump sum payment made under the act by an employer operating thereunder and accepted thereunder by the employee, even though such payment was not approved by the Industrial Board of Indiana.</p> <p>2. Workmen’s Compensation Act—right of attorney claiming lien on lump sum payment to object that payment not approved by board. An attorney claiming a lien on a lump sum payment made and accepted under the Indiana Workmen’s Compensation Act cannot object that the payment was not approved by the Industrial Board of Indiana.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Certiorari denied hy Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13*—when statement of claim in action of fourth class for personal injuries is sufficient. Under section 40 of the Municipal Court Act (J. & A. f 3352), a cause of action is sufficiently set forth by a statement of claim in a fourth-class action, which recites that plaintiff sustained injuries, on or about a certain date, in an alley in the City of Chicago, by reason of defendant’s negligence in using a skid which was defective and of insufficient strength to support a certain cask of great weight, and which broke while the said cask was being lowered thereon, injuring plaintiff while walking in said alley and while exercising due care and caution for his own safety. (</p> <p>2. Appeal and error, § 365*—necessity of raising question in' trial court. A question not raised in the trial court cannot be raised on appeal.</p> <p>3. Damages, § 122*—when verdict for personal injuries not excessive. A verdict for $1,000 for personal injuries cannot be said to be excessive where the evidence tends to show that plaintiff sustained a severe strain of the leg, resulting in chronic arthritis, that his leg was badly swollen for 2 or 3 months after the injury; that he was obliged to use a crutch for some 6 months thereafter; that he limped and had pains in his knee, and up to the time of the trial continued to have chronic arthritis of the knee joint.</p> <p>4. Damages, § 192*—discretion of jury in assessment of. In an action to recover for personal injuries, the assessment of the damages rests in the sound discretion of the jury, under the guidance of proper instructions.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Certiorari, § 47*—what considered, on return to common-taw writ of. On a return to the common-law writ of certiorari, the court does not consider or weigh the evidence but examines the record solely for the purpose of inquiring, first, whether the inferior tribunal has exceeded its jurisdiction, and, second, whether it has proceeded illegally.</p> <p>2. Architects and engineers, § la*—when citation in proceeding to revolee architect’s certificate is insufficient. A citation issued in a proceeding to revoke an architect’s license on the grounds of gross incompetency in the construction of buildings and of dishonest practices as a licensed architect is insufficient where it sets forth that the incompetency was ill connection with the sale of four sets of plans of two buildings, but affirmatively alleges that he did not draw the plans and did not supervise the drawing, and fails to allege that he approved them, while it does allege that he knew that the plans were improperly and insufficiently drawn for the purposes for which they were intended.</p> <p>3. Architects and engineers, § la*—what does not constitute dishonest practice 6y architect. A single transaction, although consisting of the sale of four sets of plans of two buildings, does not constitute “dishonest practices’’ within the meaning of the Architects’ Licensing Act (J. & A. K 484).</p> <p>4. Architects and engineers, § la*—when citation in proceeding to revolee architect’s license is insufficient. A citation issued in a proceeding to revoke an architect’s license for “dishonest practices” is insufficient where it fails either to allege a fraudulent intent on his part or to set up facts from which such fraudulent intent may be inferred.</p>

<p>1. Master and servant, § 844*—when chauffeur not engaged in operation of car for employer. A chauffeur in the paymaster's department of a gas company who volunteers to take the superintendent of another department home in his closed car because of danger to the health of the superintendent in riding, in an open car, and gets the paymaster’s consent to the temporary exchange of cars by the respective departments, and injures a person upon his way back to the garage on the return trip, is not engaged in the operation of the car for his employer so as to render the latter liable for the chauffeur’s negligence.</p> <p>2. Master and servant, § 844*—when master not liable for negligent act of employee. A master is not liable for the negligent act of an employee unless done in furtherance of the master’s business.</p> <p>3. Appeal and error, § 1802*—when judgment reversed without remanding. The Appellate Court may reverse without remanding where it finds the facts in controversy different from those found by the trial court and also where it reverses for errors of law which cannot be obviated or cured on another trial.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 84*—what does not constitute parol evidence varying terms or substance of lease. In an action by-lessees against the landlord for breach of a covenant in a lease as to the use of the premises, evidence of conversation between defendant’s agent and the plaintiffs at the time of making the lease, as to the location of a new entrance to the premises in case one should be made by the lessor, was admissible to aid the court in the construction of the covenant in the light of the situation of the parties at the time the writing was executed, and did not constitute parol evidence which varied the terms or substance of the lease.</p> <p>2. Evidence, § 372*—who may testify as to value of goodwill of, business. The owners and operators of a business are competent witnesses as to the value of its good-will.</p> <p>3. Appeal and error, § 1245*—when insufficiency of evidence may not be complained of. Appellant cannot complain of the insufficiency of evidence as to the value of the good-will of a business due to his own objection to the admission of evidence relating thereto,i</p> <p>4. Words and phrases—“good-mil” defined. The good-will of a trade, consists merely in the probability that the old customers will continue their patronage of the old place.</p>

<p>1. Master and servant, § 94*—when master liable for injury to servant. The master is not an insurer of the safety of his servant and he can only be held liable for consequences which he may reasonably be expected to anticipate as a result of his conduct.</p> <p>2. Master and servant, § 191*'—when master not under duty to warn servant. A master is not bound to warn a servant who is engaged in handling an air pressure whitewashing machine with another laborer, who is" working the pump, of the danger of his getting his eye full of whitewash, resulting in the loss of the sight thereof, due to the sudden expulsion of the air upon disconnection of the hose from the machine for the purpose of finding out what is stopping the flow of the liquid, without shutting off the stopcock which keeps back the air and liquid, where an injury of such a nature had never before been known.</p>

<p>Appeal from, the Municipal Court of Chicago; the Hon. Harby P. Dolan, Judge, presiding.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Witnesses, § 194*—when memoranda, may he used to refresh memory. A witness may refresh his memory from memoranda made by him at the time of the occurrences about which he testifies, or from reading therefrom when his memory fails.</p> <p>2. Appeal and error, § 1469*—when admission in evidence of memoranda used to refresh memory is harmless error. After memoranda from which a witness refreshes his memory have been proven and used by the witness in testifying, it is not reversible error to admit them in evidence, since the jury can determine by comparing the memoranda with the testimony whether there is any variance.</p> <p>3. Evidence—who may testify as to reasonable running time of stock train. An experienced grazier may testify as to the reasonable running time of train of stock from the point of loading to the destination.</p> <p>4. Evidence, § 407*—who may testify as to loss in weight of sheep in transit. An experienced grazier who knew all about a shipment of sheep from their birth was competent to testify as to the weight of the sheep when they left the pasture and the average loss in weight in transit.</p> <p>5. Cabbiebs, § 248*—when unreasonable delay in transit causing injury to sheep shown. In an action against an initial interstate carrier for injury to and partial loss of a shipment of sheep, alleged to be due to the negligence of defendant, evidence held sufficient to sustain a finding that there was an unreasonable delay in transit causing damage to the amount of the verdict.</p> <p>6. Appeal and ebbob, § 1401*—when verdict not disturbed on appeal as contrary to evidence. A verdict will not be disturbed on appeal as contrary to the evidence where the record discloses proof of a probative force which, if given credence by the jury, is sufficient to sustain the verdict.</p> <p>7. Cabbiebs, § 241*—when notice of claim of injury to stock timely. A notice of claim of injury served on the initial carrier within three days after the arrival of a shipment of sheep at the destination and sale, held to be timely irrespective of whether it was given before or after the intermingling of the sheep with other stock.</p> <p>8. Cabbiebs, § 188*—when initial carrier liable for injury to shipment while in charge of connecting carrier. Under the Carmack Amendment to the Interstate Commerce Act, the initial carrier, despite a change in the destination with its consent, is liable for damage occurring to the shipment whilé in charge of the connecting carrier en route.</p> <p>9. Instbuctions, § 151*—when properly refused. It is not error to refuse instructions covered in the main charge.</p>

<p>Abstract of the Decision.</p> <p>1. Payment, §34*—when receipt does not operate as complete, settlement. The acceptance hy a building contractor without question of a subcontractor’s receipt in settlement of a certain account, stating that the receipt did not cover certain items for extra material, constituted an acquiescence hy the contractor in such statement that those items remained unsettled.</p> <p>2. Building and construction contracts, § 103*—when material shown to be subcontractor’s property. Evidence held to show that certain steel rods which were worked into a building by, plaintiff as subcontractor were plaintiff’s property, notwithstanding some of them were on the premises at the time defendant ordered them, in an action to recover their value.</p> <p>3. Interest, § 24*—what is vexatious withholding of payment. The withholding by a contractor of payment of a subcontractor’s claim was vexatious where no reason appeared for disputing the claim.</p> <p>4. Interest, § 8*—when recoverable. Interest is recoverable upon a claim sued for, for money due under a contract in writing, under section 2, ch. 74, Rev. St. (J. & A. 6691).</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 18*—when denial of motion for nonsuit is improper. On trial by the court without a jury of an action in the Municipal Court of Chicago, the denial of a motion for a nonsuit made upon indication by the court in remarks, upon a motion by defendant for a finding, in defendant’s favor, that the court was inclined to grant the latter motion, was erroneous, as the decision of the latter motion was not the finding contemplated by section 70, ch. 110, title “Practice” (J. & A. If 8607), providing that a plaintiff may suffer a nonsuit before submission of the case to the court for final decision, and section 30 of the Municipal Court Act (J. & A. U 3342), providing that a plaintiff may suffer a nonsuit before the court states its finding.</p> <p>2. Automobiles and garages, § 6*—when violation of ordinance is proximate cause of accident. The failure of defendant in driving his automobile to observe a city ordinance inhibiting any vehicle from driving onto a boulevard without first bringing such vehicle to a full and complete stop was negligence attributable to defendant which was the proximate cause of the accident to plaintiff’s automobile.</p> <p>3. Automobiles and garages, § 6*—when driver of automobile colliding with another automobile not guilty of contributory negligence. The driver of an automobile has the right to assume that the driver of another automobile, with which it collides, will obey an ordinance prohibiting any vehicle from being driven onto any boulevard without 'first bringing such vehicle to a full stop, and he is not guilty of contributory negligence in acting upon such assumption.</p>

<p>Error to the Superior Court of Cook county; the Hon. Denis E. Siilkivan, Judge, presiding.</p>

<p>1. Pleading, § 295*—what is not plea puis darrein continuance. Where defendant, after original declaration was held bad on demurrer, was discharged as a bankrupt, and amended declaration was thereafter filed, a plea of such discharge was not a plea of puis darrein continuance but a proper original first plea.</p> <p>2. Pleading, § 292*—what is proper office of plea puis darrein continuance. The proper office of a plea puis darrein continuance is to set up some matter of defense arising after issue joined in a case.</p> <p>3. Bankruptcy, § 62*—when plea of discharge is good. A plea of discharge in bankruptcy was good, in an action to recover damages for negligent treatment by defendant as a dentist of plaintiff’s teeth under a contract of employment between plaintiff and defendant for such services, since the debt was provable, plaintiff having had the right to waive the tort and bring action on the contract.</p>

<p>Abstract of the Decision.</p> <p>1. Vendor and purchaser, § 167*—when consideration for arrangement concerning rent shown. Evidence held to show that plaintiff and defendant had such interest in certain premises at and after a contract for the sale of same was entered into between plaintiff’s assignor as purchaser and a certain stenographer in defendant’s office as would furnish a sufficient legal consideration for defendant’s promise to plaintiff to furnish plaintiff certain orders upon the tenants in possession of the premises to pay rent to the plaintiff, notwithstanding defendant was not the holder of the legal title, and notwithstanding plaintiff directed execution- of the deed under the contract to another person, where plaintiff and defendant had dealt with each other as having an actual interest in the premises.</p> <p>2. Vendor and purchaser, § 167*—when rent recoverable by assignee of contract of purchase from real original owner. Plaintiff was entitled to recover from defendant as the real original owner of property certain rent due, less a certain deduction conceded, where he was entitled to such rent as assignee of a certain contract of purchase but was unable to enforce collection of same by reason of defendant’s refusal to perform his agreement to deliver to plaintiff orders upon the tenants to pay rent to plaintiff.</p>

<p>1. Executors and administrators, § 92*—power of Probate Court to resort to chancei'y process .to compel delivery of. property to administrator. A Probate Court has the power to compel compliance, by resort to chancery practice, with its orders entered under the authority of sections 81 and 82 of the Administration Act (J. & A. n 130, 131), directing the delivery of property of an estate to the administrator.</p> <p>2. Courts, § 105*—power of Probate Court to enforce decrees and orders by chancery process. While County and Probate Courts are courts of limited jurisdiction, they have, under the statutes and decisions of Illinois, the power, within the limits of that jurisdiction, to enforce certain of their decrees and orders by chancery process.</p> <p>3. Executors and administrators, § 92*—poxoer of Probate Court to enforce delivery of property to administrator by summary process. Sections 81 and 82 of the Administration Act (J. & A. Iff 130, 131), as reasonably interpreted, are intended to confer upon County and Probate Courts the power, similar to that exercised by courts of equity, to enforce by summary process orders entered thereunder for the delivery to the administrator of an estate of property of the estate which is wrongfully withheld.</p> <p>¡ 4. Executors and administrators, § 92*—u>hat are proceedings in chancery. Proceedings under sections 81 and 82 of the Administration Act (J. & A. .mri30, 131), for the delivery of personal property of an estate wrongfully withheld from the administrator, are proceedings in chancery.</p> <p>5. Equity, § 547*—how evidence upon which order for delivery of property to administrator is hosed should he preserved. In a proceeding under sections 81 and 82 of the Administration Act (J. & A. 1Í1Í130, 131), to compel the delivery of personal property of an estate alleged to be wrongfully withheld from the administrator, it is the duty of the petitioner in whose favor the order is entered to preserve, either by a certificate of evidence or by a. finding of facts in the order, the evidence upon which the order is based.</p> <p>6. Equity, § 547*—preservation of evidence. It is incumbent upon the party in whose favor a decree in chancery is entered to preserve in some manner the evidence upon which it is based.</p> <p>7. Appeal and error, § 1786*—when decree reversed for insufficiency of record. On an appeal from a decree entered in a proceeding under sections 81 and 82 of the Administration Act (J. & A. K1[130, 131), to compel the delivery to the administrator of personal property of the estate, alleged to be wrongfully withheld, where there is no certificate of evidence in the record and the decree merely finds that property in question is possessed and unlawfully detained by the respondent and there is nothing by which the Appellate Court can determine upon what this conclusion is based, the decree will be reversed.</p> <p>8. Executors and administrators, § 92*—what practice impliedly to he followed in compelling delivery of effects of estate. Though sections 81 and 82 of the Administration Act (J. & A. HIT 130, 131), relating to the compelling of discovery of concealed effects of an estate and delivery to the administrator, do not expressly provide that the remedies therein provided for are to be as in cases in chancery, it is implied that chancery practice is to be followed.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jakecki, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1, Brokers, § 88*^to7z-e?i shown that broker accepted payment for services from agent of purchaser. In an action to recover from the vendor a commission on the sale of real estate, evidence held to show that plaintiff had accepted from the purchaser’s agent a sum of money in payment of his services in connection with the sale.</p> <p>2. Brokers—what constitutes release of vendor from, liability for commissions. Where one who has been negotiating the sale of property for the vendor executes an instrument, after a contract for the sale of the property has been entered into and he has received a sum of money from the purchaser’s agent, which recites that he thereby releases his “right from commission on” the property in question, such instrument constitutes a release of his claim against the vendor for commissions.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>Carriers, § 476*—when evidence supports verdict for plaintiff in action for injuries received in alighting from, car. In an action against a street railway company to recover for injuries received by a passenger in alighting from the car, evidence examined and, though conflicting, held to be sufficient to support a verdict for plaintiff.</p>

<p>1. Executors and administrators, § 204*—what allowable as expenses of administration. All expenses of an administrator which are proper to the conservation of the property of the estate should be allowed as expenses of administration.</p> <p>2. Executors and administrators—when claim for rent of premises used in conducting business of estate allowable as administration expense. Under Rev. St. ch. 3, secs. 78, 133 (J. & A. 1fí[ 127, 182), a claim for the rent of premises used by the executrix to conduct the business of the estate is properly allowable as an expense of administration, where it appears that the testator had conducted business on the premises and that by reason of the peculiar character of the premises, with regard to their location and physical surroundings, a removal of the business would have resulted in a decided loss to it.</p> <p>3. Executors and administrators, § 286*—when trial de novo had on allowance of claim in Circuit Court. On an appeal to the Circuit Court from an order of the Probate Court allowing the rent of premises as an expense of administration and awarding the petitioner priority, the questions of the allowance of the claim and its priority are before the Circuit Court as matters de novo, and the Circuit Court may, regardless of the reasons given by the Probate Court for allowing or disallowing the claim, make such order as it deems proper.</p> <p>4. Executors and administrators—when claim need not be filed in one year. Expenses of administration are not debts of the decedent, for which claims are to be filed in a year, but are debts of the estate.</p> <p>5. Executors and administrators—when liability of estate for rent of premises used by executrix in conducting business not affected by assignment of lease. The liability of an estate for rent of premises, which had been leased to the testator, during the period that they were occupied by the executrix while conducting the business of the estate is not affected by the fact that the executrix assigned the lease to a paper corporation, where it appears that she held all of the stock, that the consideration intended to be given for the stock was a transfer of goods belonging to the estate, that the assignment was signed by the executrix as such and the acceptance was signed by her as president of the corpora^ tion, that the purpose of the organization of the corporation was to prevent the use of the testator’s name in the line of business which he had pursued, and that no order transferring any of the assets to the corporation was made and no actual transfer of them was made.</p> <p>6. Executors and administrators-—when estate not relieved from liability for rent of premises. The liability of an estate for the rent of premises occupied by the executrix in conducting the business of the estate is not affected by the fact that a company from which her testator had originally subleased the premises paid the landlord a certain amount in satisfaction of its guaranty of the sublease.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. David P. Hatchett, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 228*—when intoxication of minor shown to he proximate cause of death. In an action by a parent to recover, under section 9 of the Dramshop Act (J. & A. If 4609), for the death of plaintiff’s minor son, evidence examined and held, sufficient to support a finding that deceased was intoxicated and that the intoxication was the proximate cause of his death.</p> <p>2. Intoxicating liquors, § 187*—who may have right of action under section 9 of Dramshop Act. The right of action given by section 9 of the Dramshop Act (J. & A. f 4609) is not limited to those persons only who have a legal right to support.</p> <p>3. Intoxicating liquors, § 247*—when amount of damages in action under. Dramshop Act is for jury. In an action under section 9 of the Dramshop Act (J. & A. V 4609) to recover damages for a death caused by intoxication, the question of the amount of damages is for the jury.</p> <p>4. Intoxicating liquors, § 233*—when substantial damages shown to result to mother from death of son. In an action to recover damages brought by a mother, under section 9 of the Dram-shop Act (J. & A. If 4609), for the death of her son, evidence that deceased was 18 years of age, that for more than a year before his death he had been paid $50 a month as a machinist apprentice, which he gave his mother, who used it in the support of herself and her family, that for several months before his death he assisted his father in running a pool room, receiving no wages, but the profits of the pool room being used for the family support, and that after his death she was obliged to take in washing to support the family, is sufficient to show that the death of the son resulted in substantial damages to plaintiff.</p>

<p>1. Evidence, § 107*—when evidence of one hearing telephone conversation inadmissible. Evidence of one who claims to have heard a telephone conversation between a bank officer and a third person by listening, after hearing the latter call up the bank, at the receiver held by the latter is insufficient to establish statements alleged to have been made by the officer where the witness does not identify the officer’s voice with certainty.</p> <p>2. Bills and notes, § 308*—when joint maker of note not relieved from liability. A statement made to a third person by the cashier of a bank which holds a joint note, that the bank will not hold one of the joint makers, does not relieve the other from liability.</p> <p>3. Statute of Frauds, § 10*—when verbal agreement to pay debt of another unenforceable. A verbal agreement to pay the debt of the makers of a note is not enforceable under the Statute of Frauds.</p> <p>4. Bills and notes, § 328*—when agreement that one of joint makers will not be held liable on note is no defense. Am understanding that one of the joint makers of a note will not be held liable thereon is no defense to an action on the note, where the agreement does not antedate the taking of the note by plaintiff for a good consideration.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. David F. MAtcbett, Judge, presiding.</p>

<p>1. Insurance, § 115*—right to bring suit on contract for, to enforce liability of fire insurance company. A suit to enforce the liability of a fire insurance company may be brought on the contract for insurance as well as on the policy itself, the real cause of action being the same in both the contract and the policy.</p> <p>2. Insurance, § 115*—what is nature and effect of contracts for. Contracts for insurance are considered as temporary contracts pending the issuance of the policy and, if the minds of the parties have agreed upon the essential elements, they are sufficient to hold the insurer.</p> <p>3. Insurance, § 115*—when contract for is completed. Where, by correspondence, an insurer offers to insure upon certain terms and the offer is accepted by mail, the contract is complete from the date the acceptance is mailed.</p> <p>4. Insurance, § 115*—what is valid contract for. It is not necessary to a valid contract of insurance, that the details be agreed upon, the essential terms expressed or the premium paid, unless such payment is demanded as a condition, but it is sufficient if the terms can be gathered from the circumstances and if the property, the period and the rate are understood or can be ascertained.</p> <p>• 5. Insurance, § 115*—when failure of minds to meet on contract for is not shown. In an action to recover on a contract for insurance on two buildings, where the offer of the insurer has been accepted, a failure of the minds of the parties to meet is not shown by evidence that the exact amount to be placed on each building and the exact amount of the premiums had not been determined, where it appears that the total amount on the two buildings had been agreed upon and the amount to be placed on each was ascertainable by computation, as was also the amount of the premium.</p> <p>6. Insurance, § 115*—what does not defeat agreement for insurance. Where the parties to an agreement for insurance fix the premium, basis at a certain per cent, of the premium charged by old line companies without stating what the rate of such old line companies is, the agreement is not defeated by the fact that after the offer to insure has been accepted the insurer questions the statement of the insured as to the amount charged by old line companies.</p> <p>7. Insurance, § 141*—when term of insurance begins. Where one to whom an offer of insurance has been sent by an insurer mails a letter accepting the contract offered by the insurer, the term of the insurance begins when the letter of acceptance is mailed.</p> <p>8. Insurance—when insurer precluded from claiming nonexistence of contract for, before issuance of formal policy. Where, at the outset of negotiations for a contract of insurance, the insurer invites the other party to enter into a temporary contract, suggesting that this can be done by mail or wire, and pursuant to this invitation the parties proceed by correspondence to an agreement upon the essential terms of the contract, the insurer cannot be heard to claim the nonexistence of a contract of insurance before the issuance of a formal policy.</p> <p>9. Insurance—when provision in application that insurer not liable until policy approved is waived. The effect of a clause in an application for insurance that the insurer will not be liable until the policy is "approved by the home office is waived where the correspondence in regard to the contract is held directly with the secretary and manager of the insurer at the home office.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 86*—when railroad company not liable for collision with wagon. In an action to recover for personal injuries sustained by reason of the collision of a street car with plaintiff’s wagon which he was driving, where the evidence shows that he attempted to drive across the track in front of the approaching car without regard to its nearness or rate of speed, and that as soon as he attempted to do so the motorman sounded the gong, turned off the power, put on brakes and stopped as quickly as possible, plaintiff cannot recover.</p> <p>2. Street railroads, § 86*—what care required of motorman towards person he thinks mil not attempt to drive across track. Where there is nothing to cause the motorman of a moving car to apprehend that a person driving in the street will attempt to cross the track in front of the car, he is obliged, as to such person, to exercise only reasonable care, to be measured by the apparent situation and the dangers naturally to be expected under the circumstances.</p>

<p>1. Municipal corporations, § 82*—how ordinance regulating building of garages may not be repealed, amended or suspended. An ordinance declaring it unlawful for any person to locate, build or maintain a garage within 200 feet of any building or the grounds thereof used for a hospital or public school cannot be repealed, amended or suspended by an order of the city council directing the commissioner of buildings to issue a permit in contravention thereof and one on whose behalf such an order is issued receives no legal right by such order.</p> <p>2. Estoppel, § 94*—when doctrine of estoppel in pais applies to municipal corporations. While the doctrine of estoppel in pais is applicable to municipal corporations as justice and right may require, the application of the doctrine to them depends largely on the special facts and circumstances in each case.</p> <p>3. Estoppel, § 94*—when doctrine of estoppel in pais applied to prevent city from refusing to issue license for garage. Where a garage is built at great cost by one in reliance upon an order of the city council directing the building commissioner to issue a permit therefor, without which he would not have erected the building, and after he had obtained the consent of everyone interested to the erection and operation of the garage, the doctrine of estoppel in pais will he applied to prevent the city from refusing to issue him a license to conduct the garage, and mandamus will • be granted to compel its issuance, even though the garage was constructed in violation of an ordinance regulating the distance of such buildings from schools and hospitals, of which ordinance the builder had knowledge.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 82*—what evidence admissible to show probable earnings for balance .of term of employment of employee working on commission. In an action to recover damages for breach of a contract under which plaintiff was to be compensated by commissions on sales, evidence as to his earnings during the period he was retained in the employment and as to his average earnings during the busy months for the business may be used as a basis for determining his probable earnings during the remainder of the term of employment, and the probable earnings in the busy months of the fall, prior to which time he was discharged, may be computed from his earnings in the corresponding busy months of the spring, during which time he had worked.</p> <p>2. Master and servant, § 85*—when refusal of instruction in action for breach, of contract of employment not erroneous. In an action to recover damages for breach of a contract of employment, it is proper to refuse an instruction proffered by defendant that it is for the jury to determine what, under the evidence, was the reasonable value of plaintiff’s services to himself while in his own employ after the breach, where the only evidence is that plaintiff’s own venture was unprofitable.</p> <p>3. Master and servant, § 81*-—when burden on defendant in action by servant. for breach of contract of employment. In an action to recover damages for breach of a contract of employment, the burden is on defendant to show the value of plaintiff’s services to himself in a business undertaken by him after the breach as well as to show any other fact which might reduce plaintiff’s damages.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.</p>

<p>Appeal- from the Superior Court of Cook county; the Hon. Joseph B. David, Judge," presiding.</p>

<p>1. Theaters and shows, § 4*—what damages not recoverable for interference with exhibition of moving picture film. As no bond can be required of a city or its officers on an appeal from a judgment granting a writ of mandamus to compel the issuance of a permit to exhibit a moving picture film, the damages resulting from interference with the exhibition until the final adjudication of the appeal are irrecoverable.</p> <p>2. Appeai. and error, § 707*—when appeal operates as supersedeas. An appeal by a city from a judgment granting a writ of mandamus to compel the issue of a permit to .exhibit a moving picture film operates as a supersedeas.</p> <p>3. Theaters and shows, § 3*—when refusal of permit not denial of property right. The refusal of a city to issue a permit to exhibit a moving picture film does not constitute a deprival of a* personal or property right, as the business is one subject to police regulation.</p> <p>4. Theaters and shows, § 4*—when interference with exhibition of moving picture film mil not be enjoined. Injunction will not be granted to restrain a city and its officers from interfering with the exhibition of a moving picture film pending the final adjudication of an appeal which has been taken by the city from a judgment granting a writ of mandamus to compel its officers to issue a permit for the exhibition, as complainant’s rights may be adequately ascertained in the mandamus proceeding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.</p>

<p>. Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding.</p>

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

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

<p>1. Fraudulent conveyances, § 264*—when assignment of property to prevent collection of alimony not shown. On a creditor’s hill, the allegation of complainant that an assignment of property had been fraudulently made to prevent her from recovering alimony due her by the assignor, held not sustained by the evidence.</p> <p>2. Wills, § 482*—what is nature of legacy made charge upon realty. A legacy which is made a charge upon realty merely becomes a lien thereon, enforceable by a proceeding analogous to the foreclosure of a mortgage, and does not constitute an interest in realty.</p> <p>3. Divorce, § 127*—when decree for payment of alimony does not become lien upon realty. A decree for the payment of alimony to become due does not become a lien upon the real estate of the person against whom it is entered, unless it is made so by statute or the decree itself recites that it shall become a lien.</p> <p>4. Equity, § 507*—necessity that decree be for money due in order to be lien on land. Section 44 of the Chancery Act (J. & A. IT 924), making a decree for money a lien on lands, contemplates a decree for money due at the time of its entry!</p> <p>5. Divorce—order for payment of alimony as not lien upon realty. Section 44 of the Chancery Act (J. & A. ’)[ 924) does not warrant the inference that an order for the payment of alimony to become due shall be a lien on realty.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbextaxo, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Insubance, § 434*—what proof necessary to permit recovery for loss of hand. In an action to recover under an accident insurance policy for the loss of a hand through sustaining a fracture in falling, plaintiff, to recover, must show that the injury resulted* in a total loss of the usual functions of the hand.</p> <p>2. Evidence, § 410*—when expert evidence admissible to show nature and extent of fracture of hand. In an action to recover under an accident insurance policy for the loss of a hand through sustaining a “Colle’s fracture” thereof, defendant may introduce expert evidence to*show the nature of such a fracture and the effect of it.</p> <p>3. Tbial, § 45*—when remarks of court prejudicial. In an action to recover under an accident policy, remarks of the court in ruling upon the testimony held prejudicial to defendant.</p>

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