Volume 98 — Illinois Appellate Court Reports

<p>1. Practice — Motions to Direct a Verdict for the Defendant. — In passing upon a motion made in a trial to direct a verdict for the defendant, if the evidence is such that reasonable men of fair intelligence might draw from it different conclusions as to whether the facts necessary to create a liability had been established, then the motion should be overruled and the evidence submitted to the jury.</p> <p>2. Street Car Companies — Rights of Pedestrians in Streets Occupied by. — Pedestrians have the same right to the use of a street occupied by a street railway company as the railway company itself has, the only distinction being that as its cars run upon a fixed track, the pedestrian must reasonably give way while passing along its track.</p> <p>3. Same — Duty to Give Warning, When. — It is the duty of street railway companies to give warning, by sounding a bell or otherwise, on their approach to a public street crossing.</p> <p>4. Same — Negligence in Failing to Display a Headlight or Sound a Bell — A Question of Fact for the Jury — Where a pedestrian is struck and injured by a street car, it is a question for a jury as to whether there was a headlight upon the car at the time of his injury and whether its failure to display such headlight was the cause of the injury, and if no warning was given, whether the failure to give such warning was negligence, and if so, whether the plaintiff’s injury was the result of such negligence.</p> <p>5. Negligence — Alighting from a Moving Car — A Question of Fact for the Jury. — Whether a person is guilty of negligence in alighting from a car while it is in motion is a question of fact to be submitted to the jury.</p> <p>6. Evidence — In Actions for Personal Injuries Against Street Car Companies. — In actions against street car companies for personal injuries the plaintiff has a right not only to show what was required of the company by the ordinances of the city, but what was its usual practice in running its cars in the street where he was injured, and thus to show by its conduct what he had reason to expect would be its practice in regard to headlights and warnings.</p> <p>7. Same — Propelling Cars Without Headlights. — It is negligence in a street car company to propel its cars through the public streets after dark, unless they are provided with lights sufficient to warm pedestrians of their coming and put them upon their guard against collisions.</p> <p>8. Contributory Negligence — When a Question of Fact. — In an action against a street railway company, the question as to whether the plaintiff was guilty of contributory negligence in attempting to cross the street at the place where he was injured is a question of fact for the jury. ■</p> <p>9. Personal Injuries — The Proximate Cause, a Question for the Jury. — In an action for personal injuries, the question as to what was the proximate cause of the injury is a question of fact to be determined by the jury under proper instructions from the court.</p>

<p>1. Contracts — 0/ Traveling Agents — Salary and Expenses. — Where a merchant employs a traveling agent for a year at a fixed salary, payable monthly, and agrees to pay in addition to it, all his expenses not to exceed a certain sum per annum, he has a right to know that the expenses charged are legitimate business charges and he is not bound to pay anything without knowing what it is for, and that it is a legitimate expense of his business.</p> <p>2. Same — Duty of an Agent Who is to Receive a Salary and His Expenses. — The duty of an agent who is employed at an annual salary and his expenses is not fulfilled by reporting that he has spent a round sum of money in prosecuting his employment. His duty to keep and preserve true and correct statements of account is a necessary consequence of his duty to account.</p> <p>3. Same — What is anAccount — Definition.—An. account is a detailed statement, something which will furnish to the person having a right to it, information of a character which will enable him to make some reasonable test of its accuracy and honesty.</p>

<p>Bill for an Injunction. — Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

Motion to Vacate a Judgment by Default. — Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — The plaintiff in error having been sued in the Circuit Court, summons was served upon it April 4th, in time for the April term of said court.

Assumpsit, on a contract for board and tuition. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

<p>1. Costs — Where a Cause is Stricken from the Short Cause Calendar. —Where a cause is stricken from the short cause calendar under the statute (Laws 1889, p. 223) the discretion of the court in the matter of costs does not cease until the trial has proceeded for one hour and then taken from the jury and continued.</p>

Assumpsit, on an order for goods. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — This suit was brought by appellant against appellee to recover for certain chocolate wrappers which it manufactured and shipped to appellee.

<p>Assumpsit, on a policy of life insurance. Appeal from the Superior Court of Cook County; the Hoh. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Replevin. — Error to the Circuit Court of Cook County; the Hon. John C. Garveb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — This was an action in assumpsit brought by appellant and his copartner, George P. Harris, doing business under the firm name of George P. Harris & Brother, against the Coleman & Ames White Lead Company and George J. Williams.

<p>Indictment for an Assault, etc. — Appeal from the Criminal Court of Cook County: the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Affirmed.</p>

Trespass on the Case. — Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — This was an action brought by Caroline Sandberg, administratrix of the estate of John Sandberg, deceased, for the death of her husband, the said John Sandberg.

Proceedings Under the Act Relating to Voluntary Assignments.— Appeal from the County Court of Cook County; the Hon. Oerin N. Carter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

<p>1. Sales — Of a Periodical on Condition. — Where one party sells to another the effects, property and good will of a periodical, the publication of which he agrees to continue, and to pay therefor fifteen per cent of the gross receipts quarterly until such payments aggregate the sum of three thousand dollars, the title of the property sold to remain in the vendor until full payment is made, the vendee, however, having the right to pay the three thousand dollars at any time and to receive a bill of sale, held, that the vendee had an absolute right to pay the sum mentioned at any time, or to pay the fifteen per cent of the gross receipts until such payments amounted to the three thousand dollars, and to claim for himself an absolute title.</p> <p>3. Same — Executory Contracts — Right of Recovery Under. — Where a party buys the effects and good will of a periodical for the sum of three thousand dollars, agreeing to continue its publication and to pay fifteen per cent of the gross receipts quarterly until the payments amount to the sum of three thousand dollars, by refusing to continue its publication according to his agreement, before the receipts amount to the sum mentioned, he gives the vendor a right of action to recover the amount of the purchase price remaining at the time unpaid.</p> <p>3. Contracts — To Be Performed in the Future where the Party Refuses to go on with His Undertaking. — Where a party to a contract to be performed in the future refuses to go on with his undertaking, the question as to whether the other party may bring suit before the period for performance has arrived has elicited much discussion and divergence of opinion. (See cases cited in the opinion.)</p>

<p>Bill to Wind Up the Affairs of a Corporation. — Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Bill of Foreclosure. — Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Assumpsit, on an account. Error to the County Court of Cook County; the Hon. Russell P. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

' Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — This was an action for personal injuries brought by the plaintiff, John McNicholas, against the Illinois Central Railroad Company, which resulted, upon a trial, in a verdict and judgment for $1,000.

Assumpsit, on a policy of life insurance. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1901. This suit was brought on an insurance policy for $5,000, issued by the appellant, the Merchants’ Life Association, a Missouri corporation, upon the life of Eobert I. Helliwell, in' favor of appellees, Harry W. Treat and Ferdinand W. Peek, Jr., copartners of said Helliwell.

Debt, on an appeal bond. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1901. Statement by the Court. — Defendant in error, Peterson, brought debt against plaintiff in error, Pfirshing, on an appeal bond to this court.

Assumpsit, for services. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanect, Judge, presiding. Heard in this court at the March term, 1901.

Claim in Probate. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the March term, 1901. Statement. — This is an appeal from a judgment of the Circuit Court, rendered by that court on appeal from the Probate Court.

Bill for ail Accounting. — Error to the Circuit Court of Cook County; the Hon. Elbridue Hanecy, Judge, presiding. Heard in this court at the March term, 1901. Statement by the Court. — Plaintiff in error, Wilson, filed a bill against the defendant in error, the Trust Coulpany, and others, seeking an accounting of certain moneys held by the company and obtained by the means herein-below stated.

<p>Debt, on an official bond. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901.</p>

<p>1. ’Bids — Contracts for Public Works — Forfeitures.—Where a person makes a bid for the performance of a public work for a board and accompanies his bid with the deposit of a certain sum of money under an agreement to forfeit the sum deposited in case of his neglect or refusal to enter into a contract to do the work, and without any default on the part of the board,.he fails to execute the contract agreed to be made, he can not recover back the money so deposited, and the board may rightfully declare the same forfeited to its own use.</p> <p>2. Forfeitures — Application of the Rule that Courts Incline Against. — The rule that courts incline against forfeitures is never carried to the extent of relieving a party against the gxpress terms of his own contract.</p>

Mandamus, to compel the mayor and superintendent of police to place the name of the petitioner upon the pay-roll. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1901.

Trespass on the Case. — Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1901.

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1901.</p>

Petition in Probate. — Error to the Circuit Court of Cook County; the Hon. Charles G-. Neely, Judge, presiding. Heard in this court at the October term, 1901. Statement. — Laura Jane Laurence died testate in Cook County on May 18,1895, leaving William J. Laurence, the plaintiff in error, as her surviving husband, and no child or children or descendants of a child or children.

Assumpsit, on a contract for services. Appeal from the Circuit Court of Cook County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the March term, 1901. Statement. — The appellant is an actor and is a specialist in what is known as monologue. Appellee is a theatrical manager.

<p>1. Claims Against Estates — Express Contracts, When Necessary.— Where a mother-in-law lives in the family of a son-in-law as a member of his family, and after her death he files a claim against her estate for her board, there can be no recovery without the showing of an express contract.</p>

Replevin. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge.Haneoy, Judge, presiding. Heard in this court at the March term, 1901. Statement by the Court. — Appellant brought replevin, adding a count in trover to his declaration, to recover the possession from appellee of a certain warrant of the city of Chicago, or, on failure to get the warrant, to recover its value. Issues were formed but no question arises upon the pleadings.

Petition to Enforce a Decree for Alimony. — Appeal from the Circuit Court of Cook County; the Hon. Charles (J. Neely, Judge, presiding. Heard in this court at the March term, 1901. Statement. — December 19, 1899, the appellant, formerly the wife of appellee, obtained a decree of divorce from appellee on the ground of extreme and repeated cruelty.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1901. Statement. — This suit was brought by appellee to recover for injuries sustained by him while in the employ of appellants and which, it is charged, resulted from negligence of appellants. Appellee was conductor of a freight elevator and had been so engaged for two years.

Appeal, from an interlocutory order granting an injunction. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1901.

Claim in Probate, for rent. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1901. Statement. — Appellant Starkweather filed his claim in the Probate Court against estate of Patrick J. Maginnis, deceased. From order allowing such claim, appeal was taken to the .Circuit Court by decedent’s executrix.

Foreclosure. — Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

<p>Assumpsit, on a policy of fire insurance. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1901.</p>

Construction of a Decree Relating to Alimony. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1901. Statement. — This is an appeal from a decree in regard to alimony of the appellee. February 19, 1895, appellee, formerly the wife of appellant, obtained a decree of divorce from him.

Indictment for obtaining a signature by false pretenses. Error to the Criminal Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this court at the October term, 1900.

<p>Bill for an Injunction. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1901.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1901. Statement. — This suit is brought by appellee to recover for personal injuries sustained, as is claimed, through the negligence of appellant. Appellee had occasion to visit, upon business, the office building owned and managed by appellant.

<p>1. Payment — Of a Mortgage Debt After Assignment by the Mortgagee of the Mortgage Without Notice to the Mortgagor. — A payment of a mortgage indebtedness by the mortgagor to the mortgagee after an assignment of the notes evidencing the indebtedness and the mortgage securing them to a third party, is good in equity as against the assignee, when such, assignee has given to the mortgagor no notice, actual or constructive, of such assignment.</p>

Trespass on the Case. — Death from negligence. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1901. Statement. — This suit was brought by appellant, as administrator of the estate of Anton E. Anderberg, deceased, to recover damages for the death of his intestate, caused, as is alleged, through negligence of appellee.

<p>1. Bucket-Shops— Object of the Act Prohibiting. — The act to suppress bucket-shops and gambling in stocks, bonds, petroleum, cotton, grain, provisions and other produce (laws. 1887, p. 66) is directed against the keeping of any office or place wherein is conducted or permitted the pretended buying or selling of grain or other produce, on margins or otherwise, without any intention of receiving the property bought, or of delivering it, if sold.</p> <p>2. Same — Keepers Of, as Witnesses.— The keeper of a bucket-shop can not shield himself from criminal responsibility behind the fact that he made no inquiry of .his customers as to their intentions. He must know that the transaction is not gambling or, in good faith, have just reason to believe that the buying and selling is not within the intended prohibition of the statute.</p> <p>8. Same — Sufficiency of the Proof. — Where the proof establishes beyond question that purchases ai e made without any intention of receiving the commodity purchased and that the only object is to make money on the fluctuations of the market by the pretended purchase of grain on margins, such proof is sufficient to establish the existence of a bucket-shop within the meaning of the statute.</p> <p>4. Gambling — Speculation in Futures, Unlawful in this State. — I't is no longer lawful in this State, under any shift or device, however specious, to keep an office or other place where parties may under the pretense of buying or selling grain or other produce, engage in speculation in futures and gamble upon the rise and fall of the market.</p> <p>5. Presumptions — Where a Party Refuses to Testify — When a party refuses to answer relevant questions or to produce evidence in his possession, or subject to his control, the presumption is that the testimony, if given, or the evidence, if produced, will be unfavorable to him.</p> <p>6.. Injunctions — Restraining the Board of Trade from Prohibiting" Persons from Becoming Members.- — It is error to enjoin the enforcement of a rule of the Board of Trade which does not infringe public policy or any rule of law and is not in itself unreasonable.</p>

<p>1. Burden of Proof — Under the General Issue in Assumpsit. — The plea of the general issue puts upon the plaintiff the burden of not only-proving the contract but also the breach of it as assigned in his declaration.</p> <p>2. Evidence — What Is Admissible Under the General Issue. — Under the plea of the general issue in assumpsit, the defendant may give evidence that the contract sued upon was void or voidable in law; or if good in point of law, that it was performed by payment or otherwise; or if unperformed, that there was some legal excuse for the non-performance — as, a release or discharge before breach, or non-performance by the plaintiff of a condition precedent.</p> <p>3. Same — In Assumpsit Under the General Issue. — The question in assumpsit under the general issue, is whether there was a subsisting debt or cause of action at the time of commencing the suit; anything which goes in discharge of the promise upon which the action is founded, is admissible under the general issue, and any matter which shows that the plaintiff never had a cause of action may also be given in evidence under this plea.</p> <p>4. Same — Of Rescission of Contracts Under the General Issue in Assumpsit. — Evidence of the rescission of the contract sued upon, is properly admissible in evidence, under the general issue in actions of assumpsit.</p>

<p>Claim in Probate. — Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1900.</p>

Bill for an Injunction. — Error to the Circuit Court'óf Kankakee County; the Hon. John Small, Judge, presiding. Heard in this court at the April term, 1901. Assumpsit, on a policy of accident insurance. Appeal from the Circuit Court of Kane County; the Hon. George W. Brown, Judge,

<p>1. Accident Insurance — Where the Death of the Insured Does Not Occur Through Any of the Contingencies Insured Against. — Where a person is insured in an accident association, in a by-law of which it is provided that “no benefit shall accrue or be paid for any death or disability happening directly or indirectly, wholly or in part, because of, or resulting from, entering, leaving or attempting to enter or leave a moving conveyance using steam or electricity as a motive power,” and the evidence shows that in attempting to enter a train on the Chicago & Northwestern Railroad, he took hold of the hand-rails to raise himself into the car at about the time the train started, and after holding on for about two blocks be relaxed his hold, fell to the track and was killed, it was held he could not recover.</p>

<p>1. Administration of Estates — Power of the Court to Examine Persons Charged with Having Assets of an Estate in Their Possession. —When an executor, administrator or other person interested in an estate, states upon oath to the County Court that he believes a person has in his possession any goods, chattels, moneys or effects, books of account, papers, or any evidence of debt whatever, or titles to lands belonging to adeceased person, it is the duty of the court to require such person to appear before it by citation, and the court may examine him on oath and hear the testimony of such executor or administrator or other person interested in the estate and other evidence offered by either party and make such order in the premises as the case may require.</p> <p>2. Same — Jury Trials in Proceedings by Citation. — In a proceeding under section 81, chaptér 3, R. S., to compel a person to answer touching assets of an estate in his possession, suóh person is not entitled to a trial by jury in such proceeding as a matter of right.</p> <p>3. Same — Discretion of the Court to Examina Persons Cited. — In proceedings under section 81, chapter 3, R. S., “ Administration of Estates,” to compel a person to answer touching his possession of assets belonging to an estate, the statute leaves it discretionary with the court to examine or not to examine the person against whom such proceedings are had.</p> <p>4. Trial by Jury — Constitutional Provisions. — Section 5, article 2, of the constitution of 1870, was not intended to introduce jury trials in special summary jurisdictions, which were unknown to the common law and which do not expressly provide for that mode of trial.</p> <p>5. Constitutional Provisions — As to Jury Trials. — The constitutional provision of 1870 giving a right to a trial by jury was designed simply to secure that right in tribunals exercising common-law jurisdiction as it had been previously enjoyed, and was not intended to confer that right in any class of cases where it had not previously existed, nor was it intended to introduce it into special summary proceedings unknown to the common law, and which make no provision for that mode of trial.</p> <p>6. Appellate Court Practice — Errors Must Be Assigned. — An objection to the action of the trial court in striking out testimony can not be raised in the Appellate Court where no error has been assigned in that regard.</p> <p>7. Judgments — Requisites of — Administration of Estates. — In a proceeding under section 81, chapter 3, R. S., against a person charged with having assets of an estate in his possession, when the finding is against such person, the judgment should specify the property to be turned over, with certainty.</p>

<p>Assumpsit, for wages. Appeal from the County Court of Lake County; the Hon. William C. De Wolf, Jr., Judge, presiding. Heard in this court at the Octoberterm, 1901.</p>

<p>1. Witnesses — Competency of Heirs Under the Statute. — The heirs of a deceased person when called upon to testify by a party in opposition to and against their own interests are competént witnesses under the statute.</p> <p>2. Presumptions— Where a Child Remains with Its Parents After Its Majority. — The presumption that the law implies no obligation to make compensation for the services of a person who remains with his parents, or with one standing in the relation of a parent, after arriving at his majority, may be overthrown and the reverse established by proof of an express or implied contract, and the implied contract may be proven by facts and circumstances which show that compensation other than such as naturally arises out of the relation of parent and child was intended.</p> <p>3. Limitations — Promise to Pay Takes the Case from the Statute.— Where the undisputed testimony shows that a deceased person made payments in his lifetime to a claimant upon an account, and at the same time promised to pay the balance at a subsequent date, these facts relieve the claim from the operation of the statute.</p> <p>4. Instructions — Not Error to Refuse, When Others Containing the Same Principles Are Given. — It is not error to refuse instructions, where others containing the same principles are given.</p>

Trespass on the Case. — Personal injuries resulting from the bite of a dog. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher. Judge, presiding. Heard in this court at the April term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the April term, 1901.

Assumpsit, upon a running account, etc. Appeal from the County Court of La Salle County; the Hon. H. W. Johnson, Judge, presiding. Heai'd in this court at the April term, 1901.

<p>Distress for Rent. — Appeal from the County Court of La Salle County; the Hon. H. W. Johnson, Judge, presiding. Heard in this court at the April term, 1901.</p>

Trespass, to real estate. Appeal from the Circuit Court of Kane County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the April term, 1901. Statement. — This was an action of trespass begun before a justice of the peace, removed by appeal to the.Circuit Court, where a trial was had before the court, a jury being waived, with the result of a finding and judgment for the defendant.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Carroll County; the Hon. John S. Bauhe, Judge, presiding. Heard in this court at the October term, 1901,

<p>Mandamus, to disconnect territory, etc. Appeal from the Circuit Court of Kane County; the Hon. Henky B. Willis, Judge, presiding. Heard in this court at the April term, 1901.</p>

Trespass on the Case. — Death from negligence, etc. Appeal from the Circuit Court of Winnebago County; the Hon. John C. Garver, Judge, presiding. Heard in this court at the April term, 1900.

Assumpsit, for services in burying an indigent veteran of the civil war. Appeal from the Circuit Court of Jo Daviess County: the Hon. James Shaw, Judge, presiding. Heard in this court at the April term, 1901.

Trespass oil the Case. — Death from negligence. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. John Small, Judge, presiding. Heard in this court at the October term, 1901.

Trespass on the Case. — Damages by the construction of a switch. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1901.

<p>1. Trespasses — Innocent Intentions Not a Defense. — Persons committing a trespass are liable for actual damages, no matter how good, proper or innocent their intentions may have been.</p> <p>3. Instructions — In Trespass Against Joint Defendants. — In an action of trespass to real estate against several defendants jointly, an instruction which states that the plaintiff can not recover against them, or either of them, for any act or damage done by any one or two of them separately, unconnected with and independent of the other defendant or defendants and with which all the defendants jointly were in no way or manner connected or concerned, does not state the law correctly.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the October term, 1901.</p>

Action to recover the value of freight ruined in transportation. Appeal from the Circuit Court of Will County; the Hon. John Small, Judge, presiding. Heard in this court at the October term, 1901.

<p>1. Mandamus — When an Order for the Writ is Not Defective. — An order for a writ of mandamus is not defective in not specifically stating the act to be performed by a city council, where the prayer of the petition is clear and specific and asks only for a writ of mandamus directed to the city council commanding them to pass an ordinance disconnecting the territory therein described.</p> <p>2. Same — Construction of tlie Statute. — The provision of the statute (Laws of 1879, p. 77), requiring a city council to disconnect territory when the matter is properly presented to it, is mandatory. Under that act the council had no discretion in the matter, its only function being to see that the territory was located as the statute prescribed and the petition signed as the statute directed.</p> <p>3. Same — The Fact that the Petitioner May Have Received Benefits from the City is Not a Defense. — A city council is not excused from acting favorably upon a petition to disconnect territory by the fact that the petitioner may have received benefits from the city while such lands were within the corporate limits.</p> <p>4. Disconnection of Territory — Effect of Amending the Statute After the Entry of the Order Granting a Writ of Mandamus. —Where a judgment directing a writ of mandamus to issue commanding a city council to pass an ordinance disconnecting certain lands is entered, and subsequently the statute authorizing such judgment is amended so as to vest discretion in the council, if the court at the time the judgment was entered proceeded in conformity with the law as it existed at the time, its judgment must be sustained.</p> <p>5. Execution — Gan Not Legally Issue Against a City. — A judgment awarding an execution against a city, so far as the award of the execution is concerned, is improper.</p>

Trespass on the Case, for personal injuries. Error to the Circuit Court of Rock Island County; the Hon. William H. G-est, Judge, presiding. Heard in this court at the October term, 1901.

<p>Petition for a Citalion. — Appeal from the Circuit Court of Marshall County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1901.</p>

<p>1. Ordinances — Essentials of Their Validity. — It is essential to the validity of a village ordinance that the vote upon its passage be taken and recorded.</p> <p>2. Same— What is Compliance with the Statute. — A record of the proceedings of a village board reciting that all the members were present and that the ordinance in question was passed unanimously, is sufficient to show that the ordinance was legally passed.</p> <p>3. Same — What is Sufficient Proof that it was Deposited with the Clerk. — Upon the trial of a suit for the violation of an ordinance, the production by the village clerk of the original ordinance is sufficient proof, when uncontradicted, to show that it was deposited with such clerk upon its passage.</p> <p>4. Same— Passage of, at Special Meetings. — An ordinance is not invalid because passed at a special meeting, where it appears that the president and all the trustees were present and participated in the proceedings.</p> <p>5. Same — When Too Comprehensive in Its Provisions. — The fact that an ordinance is too comprehensive in its provisions and covers cases which the village has no power to control, is no re.ason why courts should refuse to enforce it in cases over which the power of the village is unquestionable.</p>

<p>Bill for an Injunction. — Appeal from the Circuit Court of La Salle County; the Hon. Harvey M. Trimble, Judge, presiding. Heard in this court at the October term, 1901.</p>

Assumpsit, on an account between a landlord and his tenant. Appeal from the Circuit Court of Ogle County; the Hon. James Shaw, Judge, presiding. Heard in this court at the October term, 1901.

Trespass on the Case, for damages by water. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the October term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Knox County; the Hon. GE0BG® W. Thompson, Judge, presiding. Heard in this court at the April term, 1901.

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1901.</p>

<p>1. Payments — Burden of Proving. — The burden of proving a payment is upon the party claiming it, and he is required to do so by the preponderance of the evidence.</p> <p>2. Instructions — Allowing the Jury to Speculate upon Probabilities. — In the trial of a claim against the estate of a deceased person for services rendered, where the defense of payment is urged, an instruction stating that “while it is true that the burden of proving payment is upon the defense to establish the fact, still that does not mean that the defence is required to specifically prove the items or amounts of any or all such payments — it is sufficient, if from all the evidence the jury believe it is more probable that such payments were made than that they were not made,” is erroneous and should not be given.</p> <p>3. Same — Inferences Outside of the Evidence. — On the trial of a claim against the estate of a deceased person for services rendered by the claimant, an instruction telling the jury that they must be governed by the evidence of witnesses and facts and circumstances proven on the trial, and that on the one hand they might infer from the evidence that more work was done by the claimant than was specifically proven by witnesses who saw him do it, so on the other hand they might infer from the evidence that more payments were made by the deceased than the testimony of witnesses specifically proves to have been made, is manifestly improper, as from it the jury might easily have been led to believe that they were not limited by the proof as to the work done or payments made.</p>

Assumpsit, for commissions upon the sale of real estate. Appeal from the Circuit Court of La Salle County; the Hon. Harvey M. Trimble, Judge, presiding. Heard in this court at the April term, 1901.

<p>Bill for an Injunction. — Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1900.</p>

Assumpsit, on appeal from a justice of t he peace. Appeal from the Circuit Court of Carroll County; the Hon. James Shaw, Judge, presiding. Heard in this court at the October term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Leslie I). Puterbaugh, Judge, presiding. Heard in this court at the October term, 1901.

Trespass on the Case, for personal injuries. Appeal from the City Court of Elgin; the Hon. Russell P. Goodwin, Judge, presiding. Heard in this court at the April term, 1901.

<p>1. Appellate Court Practice — Dismissal of an Appeal on a Short Record Not a Bar to a Writ of Error. — The dismissal of an appeal upon a short record in the Appellate Court for want of prosecution does not bar a writ of error for the purpose of reviewing the same case.</p> <p>2. Married Woman — Separate Property Not Liable for the Debts of Her Husband. — The fact that a married woman sends a pacing horse purchased by her and paid for with her own money, to various races, in charge of her husband, to whom she also gives a power of attorney to control and sell him, so that he could sell the horse for her if a favorable offer was made for it at any of the races, does not render the horse liable to be seized on an execution issued upon a judgment against the husband.</p> <p>3. Same — When Not Estopped by Declaration of Her Husband. —The fact that the husband of a married woman, intrusted with the custody and care of her property, sometimes, in her absence, speaks of the property as his own, does not estop her from claiming the property when seized upon exepution for the debts of her husband.</p> <p>4. Power of Attorney — To Sell, Does Not Authorize a Mortgage. — A power of attorney to control and sell a horse does not authorize the attorney to mortgage him.</p> <p>5. Instructions — Requiring a Clear Preponderance of the Evidence. —In a civil action, an instruction for the defendant which announces that the plaintiff is required to prove his case by a clear preponderance of the evidence, and if he has not done so the jury should find for the defendant, is improper, as a clear preponderance of the evidence is not required in civil actions.</p>

<p>1. Malicious Prosecution — Liability of Bailroad Companies. — A passenger car standing in the yards of the Chicago, Rock Island and Pacific Railway Company at Rock Island was broken into and property stolen from it. The company sent an agent to investigate the matter and to start prosecutions against the guilty parties; a few days later the agent notified the police and they, while passing through such yards looking for tramps and offenders, found a young man in a freight car lying upon a cushion. They asked for his name and he gave them one, but after considerable questioning confessed that the name was fictitious and also that he had beaten his way from Geneseo. The policemen took him to the station, locked him up and informed the agent, who identified the cushion as the one stolen from the passenger car. Upon a statement to him by the policemen he swore out a warrant for burglary of the car; after his arrest upon it the young man procured a continuance until the afternoon of the next day and later got bail. Subsequently, upon the advice of an attorney, the prosecution for burglary was abandoned and one for vagrancy commenced, under which the young man 'was examined and discharged. Held, that under the circumstances there was nothing tending to charge the agent of the company with any improper or unworthy motive or with either legal or actual malice.</p> <p>2. Same — Suits for, Not Favored in Law. — A citizen who in good faith and without malice, under circumstances strongly tending to show guilt, institutes a criminal prosecution, should not be mulcted in damages because afterward upon a full investigation the suspicious cireumstances are explained and the innocence of the party accused made apparent. Our courts incline to the encouragement of criminal prosecutions, when instituted in good faith, without malice, and for the purpose of punishing violators of the law, and for that reason suits for malicious prosecution are not favored.</p> <p>3. Same — Aduice of an Attorney as a Defense. — Where a person, in the act of preferring a charge against a party for burglary, is advised, by an attorney sent by the public prosecutor to assist in the matter, after stating the facts to him, that the charge of burglary could not be sustained but that a charge of vagrancy could be, abandoned the charge of burglary and signed and swore to a complaint for vagrancy as prepared by the attorney upon which such party was arrested, examined and discharged, held, that the advice of the attorney given after a statement of the material facts was a protection in swearing out the warrant for vagrancy, and that in so doing the person making the complaint was not actuated by malice.</p>

<p>1. Cities and Villages — Dufy as to Streets on the Outskirts. — The fact that a street is in the outskirts of a village does not relieve the municipality of its duty to exercise reasonable care to keep such street in a reasonably safe condition for public travel.</p> <p>2. Evidence — Acis of Village Authorities After an Accident. — Proof that after an accident on a street a bridge was built by the village at the place, is incompetent, for the reason that the jury might be inclined to interpret such act as a confession that the bridge was needed and that the authorities had been negligent in not building it sooner, and its admission is error; but where it appears that before the accident the village had caused material for the bridge to be delivered at the place, and after the accident completed the bridge as planned before, the admission of such evidence is harmless error.</p> <p>3. Same — Statements of Municipal Officers as Admissions. — The statements, after an accident, of a trustee of the village, who was chairman of the street committee at the time and as such had the condition of the street especially in charge, is competent as tending to show that he and the village authorities, generally, knew before the injury occurred that the street was defective.</p> <p>4. Notice — Of Defects in Streets — Sufficiency of Proof. — In an action against a village for personal injuries resulting from a defect in a street, the testimony of an alderman of the village that he knew before the accident that the street was more or less defective and that the village had done work upon it at the place a few days before, taken with the fact that he described its condition as being such that persons could get along there by careful driving, but admitted that careful driving was necessary at night, is sufficient to show that the village had notice of such defects.</p>

Assumpsit, on a policy of life insurance. Appeal from the Circuit Court of Grundy County; the Hon. Harvey M. Trimble, Judge, presiding. Heard in this court at the April term, 1901. Statement. — Edward Sanford, an attorney residing at Morris, Illinois, held several policies of insurance upon his life in the JEtna Life Insurance Company, two of which are involved in this case.

Indictment, for living in an open state of adultery. Error to the Circuit Court of Henry County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1901. Mr. Justice Higbee dissenting.

<p>1. Promissory Notes — Indorsements May be Shown to be Incorrect. —In an action by an administratrix of a deceased person on a promissory note against the parties making and delivering the same to such deceased person in his lifetime, such parties may show that the indorsements on such note are incorrect.</p> <p>2. Verdicts — To Be Set Aside When Against the Weight of the Evidence. — Where a verdict is clearly contrary to the evidence it is the duty of the court to set it aside.</p>

<p>1. Freehold — When Involved in a Decree. — A life estate is a freehold, and the question whether a defendant, in a proceeding in chancery to establish and define a right • of way over his lands, has a life estate in the same, subject to the right of way, or has no interest whatever therein, involves the determination of the existence of a freehold, and this court has no jurisdiction to decide the question.</p>

Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Edwakd F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — On March 4, 1897, Ealph Metcalf, as receiver of the Dime Savings Bank, obtained in the Circuit Court of Cook County against Arthur W. Draper a judgment by confession for $5,850.93, being on one principal note of $4,000 and eight interest coupon notes of $140 each.

Creditor’s Bill. — Appeal from the Circuit Court of Cook County; the. Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900: Statement. — Appellant Charles S. French, having obtained a judgment against appellant Charles J. Walter, for over $9,000, had execution issued thereon, and after demand, the same was returned, no property found and no part satisfied.

<p>1. Personal Injuries — Proximate Causes and Questions of Fact.— On the trial of a suit for personal injuries resulting from the fall of a brick from a building in the process of construction, the whole subject of where the brick came from and whether its falling was the result of the carelessness of the defendant's servants, is one which, under the circumstances of this case, was properly submitted to the jury.</p> <p>3, Remittitur — Powers of the Court When the Verdict is Excessive.— Where, on an appeal from a judgment for personal injuries, the Appellate Court is of the opinion that such judgment is excessive, it may order that it be affirmed, provided a sum certain is remitted; otherwise that it be reversed and remanded.</p>

<p>Bill to Set Aside an Assignment of a Judgment. — Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p> <p>Statement. — This is a bill to set aside certain alleged assignments of a judgment for $5,000, recovered by appellant against the city of Chicago, in the Superior Court.</p> <p>At the time the judgment was obtained appellant was a minor, and one George M. Shaver was appointed and acting as her guardian. Her claim against the city had been prosecuted by a corporation known as the “ People’s Casualty Claim and Adjustment Company,” employed for the purpose by appellant’s parents. The president of this company was one Charles W. Beck. It was at the suggestion of said Beck, acting for- 'the adjustment company apparently, that Shaver was appointed appellant’s guardian. • Complainant attained legal age in 1897. About a month thereafter, August 11,1897, her said guardian filed a report in the Probate Court, stating that the judgment was still unpaid and asking to be discharged upon assigning it to appellant. An assignment of the judgment was accordingly executed and turned over to her through said Beck, president of the investment company, who, it subsequently appeared, had already disposed of the same judgment, and received the money therefor more than two years before, meanwhile concealing the fact and apparently appropriating the money to his own use. When delivering the assignment to appellant he is said to have represented to her that the judgment would be paid in about two years. In February, 1899, he wrote that he would look up the matter and see when the judgment would be paid; and again that he had not been able to find out its exact status, but was “ quite surprised ” to find there had been several transfers, and "would “ take steps to enforce payment to you.” Appellant, becoming suspicious, caused an investigation, and learned that a paper purporting to be an assignment of the judgment to one Ames H, Perkins, executed by Shaver, her guardian, dated March, 1895, two years before his discharge as such guardian, had been filed with the clerk of the court, and that subsequent assignments had been made by Perkins to one Duncan S. McBean, by McBean to the Commercial National Bank, by the bank to McBean again, and by the latter to one J. II. Pearson. Further investigation developed that the assignment by Shaver, the guardian, to Perkins, was made under an order of the Probate Court entered in March, 1895, authorizing such sale for $4,375, which sum Perkins had offered through Beck, the president of the adjustment company. It appears that the guardian had deposited the assignment with the Northern Trust Company Bank for delivery to Perkins upon payment of the sum agreed upon as above. Finding some days after, that Perkins had not paid the money as expected, the guardian took the assignment from the bank, and subsequently, as he testifies, handed it to a stenographer "employed by the adjustment company, asking her to put it away in the company’s vault, which she did, placing'it in a large envelope, it is said, writh other papers belonging to Shaver, said to have been there for safe keeping. At a period considerably later, Beck, who had then sold the judgment to Perkins and received the money, is said to have told the guardian that there was no immediate prospect of the consummation of the sale;- and Shaver paid no further attention to the matter until the question of ownership arose, in December, 1898,- having meanwhile, in August,-1S97, closed his accounts as guardian, and executed a new assignment of the judgment to appellant. There is evidence tending to show that Beck, the president of the adjustment company, took the original Perkins assignment from the vault and delivered it to Perkins, and received therefor the sum of $4,375, by a check payable to Beck’s own order, dated March 23,1895. Apparently, therefore, Beck had received the money nearly four years before appellant discovered the facts.</p> <p>Appellant filed her bill of complaint seeking to set aside the assignments to Perkins- and hiif assignees, and recover the interest which had meanwhile been paid by the city upon the judgment. Appellees answered denying the allegations of the bill, and claiming good title to the judgment. The Superior Court upon the hearing dismissed the bill for want of equity, and from that decree this appeal comes.</p>

<p>1. Trials — By the Judge Without a Jury. — In trials by the court without a jury, where the evidence is conflicting, the finding of the judge, who sees and hears the witnesses and stands in the place of a jury, will not be, ordinarily, interfered with.</p> <p>2. Contracts — When Binding upon Both Parties Alike. — An arrangement entered into between two parties, by the terms of which one of them agrees to furnish to the other, at agreed prices, the coal for the season to be used in a flat building owned by such other party, to be accepted by his janitor, constitutes a contract between the parties binding alike upon each, and under it the party is bound to buy the coal needed for the building during the season, and for a failure to do so will be liable to the other for any damages sustained by reason of such failure.</p> <p>3. Measure of Damages — Breach of Contract for the Delivery of Coal. — On the trial of an action for the breach of a contract for the delivery of. coal, the allowance of the difference between the prices at which the seller agrees to furnish it and the market prices at the time of purchasing of coal to take the place of that which he refused or failed to furnish, is the proper measure of damages for the breach of the contract.</p> <p>4. Damages — Accruing after the Commencement of the Suit. — For a breach of a contract to deliver coal for the season, where suit is brought before the expiration of the season, damages are properly assessed for the remainder of the time after the suit is brought, down to the expiration of the contract (season) when such expiration is before the day of trial.</p>

<p>Assumpsit, on a "written contract. Appeal from the Circuit Court of Cook County: the Hon. Charles Q-. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900,</p>

<p>Assumpsit, for arrears of rent. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>1. Appellate Court Practice — Assignments of Error Necessary.— In a case on appeal in the Appellate Court, where there are no errors assigned, as required by the rules, there is nothing before the court for consideration.</p> <p>S. Waiver — Of a Demurrer in Chancery Suits. — -In a chancery proceeding, where there is a demurrer on file and the attention of the trial court is not called to it during the pendency of the case in the court below, the demurrer must be considered as waived.</p> <p>3. Assignments of Error — Are Essential. — The assignment of error is not a form, but is essential.</p>

Assumpsit, on an appeal from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles Q. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p> <p>Statement. — Appellee brought suit in the Circuit Court of Cook County to recover damages from appellant for personal injuries sustained by him on the 2d day of July, A. D. 1898, by reason of the alleged negligence of appellant.</p> <p>Appellee was, on the day mentioned, about six o’clock in the evening, on the north side of Twenty-sixth street east of Emerald avenue.</p> <p>Emerald avenue makes a jog near the crossing of Twenty-sixth street so that the east line of the north part of Emerald avenue is nearly opposite the west line of the south part of Emerald evenue.</p> <p>Appellee’s contention was that he was crossing Twenty-sixth street, south, toward his home, and when he reached that part of the street lying between the east and westbound street-car tracks on Twenty-sixth street, he noticed appellant’s team attached to a beer wagon coming rapidly east on the east-bound track; that he hesitated for a moment and took two steps backward between the tracks, and while in that position, and as the wagon was passing him, one of the beer barrels which had been piled upon the wagon fell off, striking him in the breast, felling him .to the ground and crushing his leg, causing the injuries for which he sued.</p> <p>The defendant contended that the plaintiff was attempting to climb upon, the wagon and pulled this keg off upon himself; that this was an ordinary brewery wagon with a skeleton frame or bed for holding the kegs, the center being eight inches lower than the rails forming the sides.</p> <p>Defendant contended that plaintiff in his attempt to climb upon the wagon got upon a keg which was hanging in the hooks and with his hand caught hold of the rim of one of the kegs tying on the side rail and in endeavoring to raise himself up, overbalanced the keg and fell, causing the keg to fall with him.</p> <p>The case was tried in the Circuit Court and on May 16, 1900, the jury brought in a verdict against this defendant in the sum of $10,000. Judgment was entered on the verdict. Upon the trial each side introduced evidence to sustain its contention.</p>

Assumpsit, upon a special assessment voucher. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in the Branch Appellate Court at the -October term, 1900. Statement. — This is an action in assumpsit by appellees to recover upon a special assessment voucher, which is as follows: Warrant Ho. 18,441. Estimate Ho. 1. Installment Ho. 5. Special Assessment Vouchee. Bureau of Sewers. Chicago, May 21, 1894.

Foreclosure. — Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1901. Statement.- — This suit in error attacks the propriety of a decree entered in favor of the defendants in error, Huber and Mann, as holders and owners of certain notes made by Thomas Brown and secured by trust deeds executed by himself and wife to Theodore H. Schintz.

<p>1. Decrees — Recitals in, When Conclusive.— Where, in a proceeding to foreclose two trust deeds, it is recited in the decree that it is agreed in open court between the solicitors for the different parties that certain sums of money, exclusive of costs and solicitor’s fees, are the correct amounts secured by such trust deeds, such recital is'conclusive and can not be contradicted in this court by affidavits filed and not brought to the attention of the court below.</p>

Assumpsit, on a contract of guaranty. Error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — This is a suit against plaintiff in error to recover a balance for goods sold by defendant in error to a • corporation known as the Berner-Mayer Company.

Mechanic’s Lien. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — Peter Miller, on May 10,1898, entered into a written contract with Henry Achenbach for the erection of a brick and stone building on premises owned by him (Miller), for the sum of $2,140, to be paid within twenty days after the completion of such building.

<p>Debt, on a replevin bond. Appeal from the Circuit Court of Cook County; the Hon; Richard W. Clifford. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>1. Negligence — When a Question of Fact. — The question as to whether “ a hoist” in a perpendicular shaft was negligently and improperly caused to be started with a sudden and violent jerk is a question of fact for the jury.</p> <p>2. Same — When a Question of Law. — Where the evidence or the undisputed facts establish beyond question that the relation of fellow-servants exists between the person injured and his co-employe by whom, the injury is caused, the question of negligence becomes one of law.</p> <p>3. Pleading — Negative Allegations as to Fellow-servants Not Necessary. — In an action for personal injuries caused by the act of a co-employe, it is not necessary to allege in the declaration that the co-employe whose negligent act caused the injury was not a fellows rvant of the plaintiff.</p>

Claim in Probate, on four promissory notes. Appeal from the Circuit Court of Cook County; the Hon. Chables G-. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

Assumpsit, for services. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanaqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — This was an action in assumpsit brought by appellee against appellants. The pleadings in brief were as follows: Appellee, on December 2, 1896, filed a special count for services as physician, together with the common counts.

<p>1. Lease — Definition—Rights of the Parties — Liability of the Land-\ lord for Representations. — A lease is a sale of the right to use and occupy premises for a certain time, and to which the rule of caveat emptor applies. The landlord is not liable for representations as to the condition of the premises concerning which the lessee has the same opportunity for observation and examination that he has, unless by some artifice the lessor prevents him from making an examination as to latent defects known to the lessor and unknown to the lessee, and of which knowledge could not be ascertained'by an ordinary and reasonable examination.</p> <p>2. Landlord and Tenant — Liability to Keep the Premises in Repair. —A landlord is not bound to repair or to keep the demised premises in a habitable or tenantable condition unless he has expressly agreed to do so, in which case, if he fails to keep his promise, the tenant may cause the repairs to be made and charge them to the landlord, or he may abandon the premises.</p> <p>3. Same — Liability of the Tenant for Nuisances. — A tenant is not liable for a nuisance existing on the premises at the time the lease is made, nor for a defect in the premises, unless the defect is latent and the landlord has been guilty of fraud or deceit in the letting.</p> <p>4. Same — Right of Control During the Term. — When a tenant enters into possession of premises under a lease, the landlord, during the term, parts with all his right of control over the same, except as to injuries affecting his reversionary interests.</p> <p>5. Pleading — Allegations of Duty in Actions for Neglect of a Duty. —In an action for a neglect of a duty by the defendant it is not sufficient to allege in the declaration that it was the duty of the defendant to do certain things. Facts from which his duty arises must be stated.</p>

Trespass on the Case, for the conversion of the effects of a deceased person. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Mr. Presiding Justice Freeman dissenting. Statement. — This was an action of trespass on the case, brought by Ida Rohn as administratrix of the estate of her husband, William Rohn, Jr., deceased, who died October 10, 1893.

<p>1. Mandamus — Notice to Interested Persons. —When, after the filing of a petition for a writ of mandamus, it appears that any person other than the original defendant has or claims to have any right or interest in the subject-matter of the action, such person may be made a defendant and summoned to appear, plead, answer or demur in the same manner as if he had been made a defendant to the original petition.</p> <p>8. Assignment — Of Salaries by Municipal Officers. — The doctrine is well settled that a municipal officer can not assign his unearned salary, and his undertaking to do so is but an undertaking, unenforcible and of no validity. The law prohibits an assignment of a salary by indirection or to be effected by having the official appoint an attorney authorized to receive the salary and turn it over to an assignee.</p> <p>3. Municipal Corporations — Purpose of Their Existence. — A municipal corporation exists for the public welfare only, and it can not be forced into a position by which its duty to its officials in respect to their salaries shall be, not to pay them in accordance with their lawful right, but to pay debts which they may be owing to creditors, or their stipend to those to whom such officers may have assigned it.</p> <p>4. Sam® — Effects of Judgments Against. — A judgment against a municipal corporation is in effect a mere adjudication of a claim. It does not bring the claimant any money; he can not have an execution issued upon it and levy it upon the property of the corporation. His only right is to sue out a writ of mandamus to compel its payment.</p>

Assumpsit. — Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Statement. — This was a suit in assumpsit brought in the Saperiqr Court of Cook County by Lu J. Smith, plaintiff, against Joseph H. Strong, defendant. The usual common counts were filed as a declaration, including one special count.

<p>Debt, on appeal bonds. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

<p>Bill of Interpleader. — Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

<p>1. Statutes— Construction of Sec. 19, Chap. £2, R. S.— Section 19, Chapter 33, R. S., entitled Chancery, and providing, in substance, that when a defendant not summoned or served with a copy of the bill, shall within a year after notice in writing given him of a decree against him, or within three years, if no such notice has been given him, appear in open court and petition to be heard touching such decree, was intended to give an additional remedy and not to limit or take away those already in existence.</p> <p>3. Same. — Applicability of the Statute. — Where the allegation of a bill is that the return indorsed upon a writ as served upon the defendant is false, and that such writ never was in fact served upon him by any one in any manner, it may well be doubted if the statute (Sec. 19, Chap. 23, ti. S.) is applicable to a decree obtained upon such a return.</p> <p>3. Returns— Of Service — Remedy When False. — If a sheriff or other officer, by fraud and collusion with a party, or by mistake, makes a false return, a court of equity has full power and jurisdiction to interpose and give the appropriate relief, and to permit the party injured to aver against the truth of the return and to show it to be false, although it is a matter of record.</p>

<p>Action for Fraud and Deceit. — Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Donne, Judge, presiding. Heard in this court at the March term, 1901. Statement. — Appellee brought this action to recover damages for personal injury sustained by him while in the employ of appellant, and caused, it is alleged, through the negligence of appellant.

Trespass on the Case, for death by negligent acts. Appeal from the Circuit Court of Cook County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1901.

Bill for a Mechanic’s Lien. — Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1601.

<p>Debt, on a replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901.</p>

<p>1. Interest — Defined.—Interest is defined to be the compensation which is paid by the borrower of money to the lender, for its use, and generally, by the debtor to his creditor, in recompense for the detention of the debt.</p> <p>2. Same — Unlawful Rates Prohibited. — By the statute (Hurd’s R. S. 1899, Chap. 74, Secs. 4, 5 and 6), it is lawful to contract for interest at the rate of seven per cent per annum, or for any less sum, and the acceptance or receipt by any one, directly .or indirectly, in money, goods, discount or thing in action, or in any other way, of any sum or greater value than seven per cent per annum for the loan or forbearance of money, is expressly prohibited.</p> <p>3. Same — Penalty for Contracting for a Rate in Excess of that Allowed by Law. — It any person, directly or indirectly, contracts to receive a greater rate of interest than that allowed by law, such person forfeits the whole of the interest so contracted to be received.</p> <p>4. Remittitur — Of Usury in a Judgment. — When it appears from the record that usury is an element of a judgment appealed from, and a jury has been waived in the court below, the Appellate Court may order the judgment affirmed on condition that the element of usury be eliminated by a remittitur.</p>

Creditor’s Bill. — Appeal from the Circuit Court of Cook County: the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the March term, 1901.

Bill for an Accounting and Relief. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1901.

<p>1. Practice — When a Case is to be Submitted to the Jury. — It is not the province of the trial judge to weigh conflicting evidence in the first instance, but to submit it to the jury; and if its verdict is not supported by a preponderance of the testimony, his duty is to award a new trial.</p> <p>2. Instructions — When They May be Oral. — The mere direction as to the manner in which the jury should proceed, though oral, is not erroneous. Under the statute (R. S., Chap. 110, Sec. 53), it is necessary only that instructions upon the law o£ the case should be in writing.</p>

<p>1. Limitations — Sufficiency of a Promise to Bar the Statute. — A promise to pay when the promisor is able, or on a named contingency, is a conditional promise and there can be no recovery without proof that the condition has been fulfilled or that the contingency has happened.</p> <p>3. Practice — On Appeals from Justices of the Peace — Waiver.—On an appeal from a justice of the peace, where both parties on the call of the case on the regular call of the docket announce themselves ready for trial and proceed to try the case on its merits, all irregularities in perfecting the appeal and entry of appearance are waived.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901. Statement. — This suit was brought by appellant to recover damages sustained, it is alleged, through negligence of appellee. There ivas evidence presented upon the trial tending to establish the following facts : Appellee owned and was operating an 'iron foundry in Chicago.

<p>Action on Appeal from a Justice of the Peace. — Appeal from the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in this court at the March term, 1901.</p>

<p>1. Judgments — On Gambling Debts Can Not Be Revived by Scire Faeias. — A judgment at law obtained on a promissory note given in settlement and payment of money due or claimed upon a gambling contract contrary to the statute, can not be revived by a writ of scire facias.</p> <p>2. Same — Rendered on Gambling Debts, Void. — A judgment rendered in an action upon anote given in settlement of differences resulting from a gambling transaction within section 181 of the criminal code (Hurd’s R. S. 1899, p 590) is void and no execution can be lawfully issued thereon.</p>

Attachment Proceedings. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanbcy, Judge, presiding. Heard in this court at the March term, 1901. Statement toy the Court. — Appellee brought an attachment September 12, 1900, against “the estate of Thomas Hester, and George Hester, as executor of the estate of Thomas Hester, defendants,” the affidavit stating that the defendants were not residents of Illinois.

<p>Assumpsit, for goods sold. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1901.</p>

Action on Appeal from a Justice of the Peace. — Appeal from the Circuit Court of Cook County; the Hon, Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1901.

Trespass on the Case, for the mutilation of a dead body. Appeal from the Circuit Court of Cook County; the Hon. Jesse Holdom. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

Garnishment Proceedings. — Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the March term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1901.

<p>Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the March term, 1901.</p>