(144 N.E.) (312 III. 520) I. Weights and measures 1-Chicago may Under Cities and Villages Act, art. 5, § 65, subd. 54, authorizing cities to regulate the weighing and measuring of any article of merchandise, Chicago has power to enact an ordinance requiring merchandise sold in load lots by weight, and delivered by vehicle, to be weighed by a public weighmaster, and providing a penalty of from $25 to $200 for a violation thereof, in view of Cr. Code, div. 1, § 101, as the power to regulate necessarily includes the power to make the regulation effective. 2. Weights and measures-Ordinance requiring merchandise sold in load lots to be weighed by public weighmaster held not unreasonable. load issued by such weighmaster should be delivered to the purchaser or consignee or agent at the time of delivery, or if the purchaser, consignee, or agent could not be located, the certificate should be posted conspiciously at the place of delivery. On that day the appellee, a corporation, operating a number of yards in the city from which it sold coal, lumber, sand, gravel, cement, and other building material in loads, sold and delivered from one of its yards a load of coal sold by weight, delivered by wagon, which had not been weighed by a public weighmaster. The city brought its action in debt in the municipal court against the appellee to recover the penalty prescribed by the ordinance, which was not less than $25 nor more than $200. The sale in violation of the terms of the ordinance was admitted, and the defense was that the ordinance was void for want of power to enact it and because it was unreasonable. There was a trial before the court resulting in a finding that the ordiA city ordinance, requiring articles of merchandise sold in load lots by weight for deliv-nance was void, and judgment was rendered ery by vehicle to be weighed by a public weigh-for the appellee. The court certified that master, is not unreasonable as affecting only the validity of the ordinance was involved persons selling merchandise in load lots by and allowed an appeal to this court. weight for delivery in Chicago by vehicle, and not including wholesale dealers selling carload lots. 3. Weights and measures 8-Coal dealer selling coal in partially filled truck held within ordinance requiring vehicle to be weighed by public weigh master; "load lots." A coal dealer selling coal in a partially filled wagon or truck by weight is within Chicago ordinance requiring articles of merchandise sold in "load lots" by weight and delivered by vehicle to be weighed by a public weighmaster. The ordinance was designed to protect the purchasing public against what has been universally regarded as a widespread evil in the selling of commodities in load lots by weight, and it contained effective means for the prevention of the evil. It was proved at the trial that the conditions in Chicago in regard to short weighting, the use of padded weight tickets, the substitution of a different kind of coal from the coal billed, and the mixing of an inferior grade with coal of a superior grade and quality, had become so bad that many reputable dealers had asked Appeal from Municipal Court of Chicago; protection from such unfair competition. Hosea W. Wells, Judge. Action by the City of Chicago against the Wisconsin Lime & Cement Company. Judgment for defendant, and plaintiff appeals. Reversed, and judgment entered for plaintiff. By section 101 of division 1 of the Criminal Code (Smith-Hurd Rev. St. 1923, c. 38, § 259), if any person shall knowingly sell by false weights or measures he is subject to a fine of not less than $200 and imprisonment not exceeding three months. Purchasers of a com Francis X. Busch, Corp. Counsel, and Sam-modity by weight already had that protecuel E. Pincus, City Atty., both of Chicago, and Leonard J. Grossman, of Belleville (Joseph B. Fleming, Louis G. Caldwell, and Ehlers English, all of Chicago, of counsel), for appellant. Delbert A. Clithero and Dwight S. Bobb, both of Chicago (F. M. Hartman, of Chicago, of counsel), for appellee. tion but no way to enforce it. In buying ordinary articles the buyer generally may see the article weighed or have the means at hand to ascertain whether it is short weight, but when applied to load lots it was and is impossible for the purchaser to determine the weight of the load. The purpose of the ordinance was most commendable and essential to secure to the purchaser the weight CARTWRIGHT, J. [1] On May 2, 1923, of the commodity purchased and paid for, there was in force in the city of Chicago an but a defense was interposed at the trial on ordinance providing that every load of any the ground that the city had no power, either commodity purchased, or every article or expressed, necessarily implied, or essential articles of merchandise sold in load lots by to the purposes of the corporation, to pass weight, delivered by wagon, truck, or other the ordinance. vehicle, should be weighed by a public weigh. master, and a certificate of weight for each The powers of the city council are enumerated in article 5, § 65, of the Cities and Vil For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lages Act (Smith-Hurd Rev. St. 1923, c. 24), [It is the opinion of counsel for the appellee and among them are the following: "Fifty-Fourth. To regulate the inspection, weighing and measuring of brick, lumber, firewood, coal, hay, and any article of merchandise. that these decisions do not sustain the ordinance because in these cases ordinances were passed under statutes granting power to provide for weighing or measuring such merchandise or giving the right to appoint "Fifty-Fifth. To provide for the inspection weighers or weighmasters. There is no disand sealing of weights and measures. *tinction, since the power to regulate in"Ninety-First. To tax, license and regulate cludes the power to make the regulation efpublic scales," etc. [2, 3] The second objection to the ordinance is that it is unreasonable in affecting only persons, firms, and corporations selling merchandise in load lots by weight, for delivery in Chicago in wagon, truck, or other vehicle, and does not include wholesale dealers or a coal dealer selling a part of a load of coal, who, it is said, may use his own private scales. A wholesale dealer selling in carload lots is not in the same class as the dealers included in the ordinance, but deals with those who have the means of determining the weight of carload lots; and it is not true that a coal dealer selling coal in a wagon or truck by weight, where the wagon or truck is not full and only partly filled, may use his own private scales. Coal delivered in load lots does not mean that a wagon or truck must be full of. coal. If two lots of coal are loaded in the same wagon or truck, separated by a partition, there is no difficulty whatever in fixing the weight of each-first of the coal or commodity on one side of the partition and then the added weight on the other. The ordinance is liberal in permitting dealers themselves to be appointed weighmasters or have their own employees appointed deputies, for their own convenience. No one is required to become a weighmaster unless he chooses to do so, and if he thinks it to his own advantage to give the bond and pay the fee he may do so. There is no legal objection to the ordinance. fective, which is secured in the only feasible way by requiring the weighing to be done by The appellee would limit the meaning of weighmasters who give a bond and are subthese sections by confining the word "regu-ject to a penalty. The ordinance is not inlate" to governing by rule and directing or valid for want of power to enact it. managing according to certain standards or laws, and contends that the word does not include authority to provide that commodities sold in loads by weight shall be weighed by a public weighmaster appointed by the city, The power conferred, as applied to commodities sold in load lots by weight, cannot be so restricted. The commodity sold and paid for by weight is necessarily weighed, and the authority is not merely to create a mental state in the seller or rule or regulation that he shall give honest weights, but it includes supervision, oversight, control, and prescribing methods to secure the intended result. It is admitted that the city could legislate by making rules and prescribing methods for weighing commodities sold by weight; but, if there were no power to provide for the weighing of the commodity, making rules without superintendence or control would be ineffective and worthless. The ordinance is limited to purchases of load lots-not as loads, but by weight. The power to regulate necessarily includes the power to make the regulation effective and to provide for methods of weighing which will secure truthful weights. The method provided for such regulation is the appointment of a weighmaster required to give a bond and pay a small fee, instead of the weighing being done by the seller, without the knowledge or supervision of anyone or any method of ascertaining whether the scales are correct or the weighing honest. The power to pass such an ordinance is sustained by many decisions. Petty v. State, 102 Ark, 170, 143 S. W. 1067; Davis v. Anita, 73 Iowa, 325, 35 N. W. 244; Sylvester Coal Co. v. City of St. Louis, 130 Mo. 323, 32 S. W. 649, 51 Am. St. Rep. 566; Stone v. Eck, 121 Minn. 202, 141 N. W. 106, Ann. Cas. 1914C, 678; Stokes v. City of New York, 14 Wend. (N. Y.) 87; Brittingham Lumber Co. v. City of Sparta, 157 Wis. 345, 147 N. W. 635. The violation of the ordinance was admitted at the trial and is now admitted, and there is no reason for further delay by a new trial or delaying the enforcement of the ordinance. The judgment of the municipal court is reversed, and judgment will be entered in this court in favor of the city for $25-the minimum penalty prescribed by the ordinance and for all costs. Reversed, and judgment in this court. (312 III. 371) SHEDD et al. v. PATTERSON. (144 N.E.) [administratrix of John C. Patterson, being (No. 15805) substituted defendant pending the appeal, and the executors appeal on certificate of importance. Judgment of Appellate Court affirmed: (Supreme Court of Illinois. April 14, 1924. Rehearing Denied June 12, 1924.) 1. Common law 7-English statute modifying previous common law held to become part of common law of state. Statute of 4 Edward III, c. 7, modifying the English common-law rule as to abatement of actions ex delicto on the death of either party so as to give an action in favor of a personal representative for injury to personal property of deceased, became a part of the common law of Illinois. 2. Landlord and tenant 70 leasehold is chattel real. olds, both of Chicago, for appellants. F. J. Karasek and W. D. Elmer, both of CARTWRIGHT, J. On August 1, 1919, Edward A. Shedd brought an action of trespass on the case in the circuit court of Cook county against John C. Patterson to recover Long-time damages for malicious prosecution of a series of suits, five in equity and four at law, dis A leasehold estate for a long term of years puting the title of Shedd to a leasehold esis chattel real. 3. Property -“Property" defined. tate in valuable property in Chicago on various grounds and claiming that the leasehold Property in a legal sense consists in the estate had been forfeited, all of which suits domination which is rightfully and lawfully terminated in favor of Shedd. A judgment obtained over a material thing with the right in favor of Patterson in the action for maliof use, enjoyment, and disposition, and in the cious prosecution, affirmed by the Appellate full sense it denotes a right in point of user, Court for the First District, was reversed, unrestricted in point of disposition and un- and the cause was remanded to the circuit limited in point of duration over a determi-court for a new trial. Shedd v. Patterson, nate thing, and it may apply to a right indefinite in point of user, but limited in duration, as a life interest in realty. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Property.] 4. Statutes 188-Words given ordinary and accepted meaning in popular use. In construing statutes, words are given their ordinary and accepted meaning in popu lar use. 5. Abatement and revival 55(1)-Injury to property need not be direct and physical for cause of action to survive. Under Administration Act, § 123, relating to the survival of rights of action, it is not necessary that an injury to property be a direct physical injury for the right of action for resulting damages to survive. 6. Abatement and revival 55(1)-Action for malicious prosecution of suits disputing title to leaseholds held not to survive as action for injury to real property. 302 II. 355, 134 N. E. 705. Before the cause was redocketed in the circuit court Shedd died. A motion of Charles Cossitt Shedd and Christiana M. Shedd, executors of the last will and testament of Edward A. Shedd, detinued, was denied, and the motion of the deceased, that the action be revived and confendant, Patterson, that the action abate on account of the death of the plaintiff, was sustained. The action was abated by order of the court, and an appeal to the Appellate Court for the First District was allowed. Pending the appeal Patterson died, and Alvina F. Patterson, the administratrix of his estate, was substituted. The appeal was perfected, and the Appellate Court decided that the action abated on the death of the plaintiff, affirmed the judgment, and allowed a certificate of importance and an appeal to this court. [1] An action for malicious prosecution is in tort to recover damages for the insti An action for damages for malicious pros-tution, maliciously and without probable ecution of a series of nine suits disputing the title of plaintiff to a long-time leasehold held not an action to recover damages for injury to real property which survived plaintiff's de cease. Appeal from Second Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Donald L. Morrill, Judge. cause, of a suit which has terminated in favor of the defendant therein. At common law such action, like that for all other torts, as a general rule abated by the death of the sole plaintiff or defendant before trial or verdict, and, if the cause of action was one that would survive, the plaintiff or his personal representative was required to bring a new action against the defendant or his personal representative. Causes of action for tresAction by Edward A. Shedd against John pass to person or property did not survive in C. Patterson. Denial of motion of Charles favor of or against personal representatives Cossitt Shedd and Christiana M. Shedd, ex- or heirs. The general rule of the common ecutors of Edward A. Shedd, that the action law that actions ex delicto abated on the be revived and continued was affirmed by death of either party was modified by the the Appellate Court, Alvina F. Patterson, | Statute of 4 Edward III, c. 7, so as to give For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes an action in favor of a personal representa- | 505, and personal property was held in the tive for injury to personal property. That popular meaning to include only articles or statute became a part of the common law of this state, which changed the common law only so far as related to injuries to personal property. Reed v. Peoria & Oquawka Railroad Co., 18 Ill. 403. The classes of action which survive have been further enlarged by section 123 of the Administration Act (SmithHurd Rev. St. 1923, c. 3, § 125) as follows: [2, 3] The action for malicious prosecution of the civil suits was not to recover damages for an injury to the person of the plaintiff nor for the detention or conversion of personal property. The actions brought by Patterson related to a leasehold estate for a long term of years, which was a chattel real and under our law classed as real estate. Knapp v. Jones, 143 Ill. 375, 32 N. E. 382. The question to be determined is whether the action for malicious prosecution was an action to recover damages for injury to real property. While the word "property," in common use, is applied to the tangible physical thing commonly called property, in the law it is not the material object, but the right and interest which one has in it, to the exclusion of others, which constitutes property. Property, in a legal sense, consists in the domination which is rightfully and lawfully obtained over a material thing, with the right to its use, enjoyment, and disposition. In the full sense it denotes a right in point of user, unrestricted in point of disposition and unlimited in point of duration over a determinate thing, and it may be applied to a right indefinite in point of user, but limited in duration, as a life interest in real estate. 2 Austin on Jurisprudence, 817; Penn Mutual Life Ins. Co. v. Heiss, 141 Ill. 35, 31 N. E. 138, 33 Am. St. Rep. 273. things movable. The same rule applies to real property, and the statute includes only such property in the common understanding. An injury to property in that sense need not be a direct physical injury to the subject of property. An action may be maintained for an injury to property by erecting and maintaining anything amounting to a nuisance, injures it as a habitation or for other uses. by which real estate is damaged or which That was the doctrine of Penn Mutual Life Ins. Co. v. Heiss, supra, where it was considered that the right of action of a lot owner for damages caused by the location and operation of a railroad in the street in front of his lot survived to his personal representative as an injury to his property. In all such cases, however, the damages, although indirect and consequential, are damages to the real estate. [6] The statutes providing for the survival of actions vary considerably, and some may be broad enough to embrace an injury to a right or interest growing out of real estate; but our statute is limited, in terms, to actions to recover damages for an injury to real property. The statute does not expressly or by implication provide for the survival of an action for malicious prosecution, which is not an injury to real estate or to the use or enjoyment of it. Undoubtedly Edward A. Shedd suffered pecuniary losses by the prosecution of the suits against him, but they were not the direct result of injuries to his leasehold estate and do not come within the terms of the statute. The judgment of the Appellate Court is affirmed. Judgment affirmed. (312 Ill. 359) PRESSED STEEL EQUIPMENT CO. V. THORNBURGH PRESSTEEL CO. et al. (No. 15450.) (Supreme Court of Illinois. April 14, 1924. Rehearing Denied with Modification June 5, 1924.) Appeal and error 1083 (1)-Rule as to conclusiveness of judgment of Appellate Court, on appeal from judgment rendered in action tried by court, stated. A judgment of the Appellate Court was conclusive in an action tried by the court, where no propositions of law were submitted, no demurrer to the evidence was interposed, no motion to find for appellant was made, and no question was raised as to the admission and exclusion of evidence, since in such case there is no question of law presented to the Supreme Court for review. [4, 5] In construing statutes, however, the court takes words in their ordinary and accepted meaning in popular use. Stuart v. Hamilton, 66 Ill. 253; Wheeler v. Wheeler, 134 Ill. 522, 25 N. E. 588, 10 L. R. A. 613; Culver v. Waters, 248 Ill. 163, 93 N. E. 747. The rule was applied to the survival statute Appeal from Second Branch of Appelin Jones v. Barmm, 217 Ill. 381, 75 N. E. late Court, First District, on Appeal from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (144 N.E.) Municipal Court of Chicago; Robert E. Gent- | overpayments by the debtors, and less total zel, Judge. charges as shown in lines 38 to 42 hereof, to be paid immediately upon payment of any such accounts to second party, provided that no payments of any such remainder need be made so long as any accounts purchased hereunder are affected by any breach or violation of warranty hereunder; but such remainder, and any moneys, accounts, or property of the first parparty, may be held and later applied to the ty which may come into possession of second payment of any accounts or any indebtedness." Attachment suit by the Pressed Steel Equipment Company against the Thornburgh Pressteel Company, as principal debtor, and the Commercial Acceptance Trust, as garnishee. From a judgment for plaintiff against the garnishee, giving insufficient relief, plaintiff appealed to the Appellate Court, where the judgment was affirmed (228 Ill. App. 1), and it appeals. Affirmed. Walter H. Eckert, Warren B. Buckley, and Loucks, Eckert & Peterson, all of Chicago, for appellant. Winston, Strawn & Shaw, of Chicago (John C. Slade and Harold Beacon, both of Chicago, of counsel), for appellee. PER CURIAM. The appellant brought an attachment suit in the municipal court of Chicago against the Thornburgh Pressteel Company, as principal debtor, and served the appellee, the Commercial Acceptance Trust, as garnishee. In the hearing on the attachment, a judgment was entered against the Thornburgh Pressteel Company (hereinafter referred to as judgment debtor) in the sum of $5,588; and in the issue made up on the garnishment proceeding, the court, on trial without a jury, entered a judgment against the Commercial Acceptance Trust (hereinafter referred to as garnishee) in the sum of $708.72. The judgment in garnishment was appealed to the Appellate Court for the First District. That court affirmed the judgment, issued a certificate of importance, and granted an appeal to this court. The second clause of the contract provided for remittances to be paid at the office of the Thornburgh Pressteel Company, and that representatives of the Commercial Acceptance Trust might have the privilege of inspecting and auditing the books at the expense of the former. The third clause provided that the Commercial Acceptance Trust would place its collection department at the disposal of the Thornburgh Pressteel Company and upon request endeavor to collect direct. This clause also makes other provisions relative to the working relation between the parties. The fourth clause provides for the total compensation to be paid for such services rendered, as follows: "Fourth-The total compensation to be paid by first party for all services and other considerations specified in lines 18 to 37 hereof, and for the charge as mentioned in line 11 hereof, it is hereby agreed shall be one-thirtieth of one per cent. (1/30 of 1%) of the net face value of accounts for each day from date of purchase by and until paid to second party, plus $5 per $1,000 only on the first $100,000 of accounts purchased within any twelve successive months' period." The fifth clause sets forth the warranties referred to in the first clause and provides that the Thornburgh Pressteel Company warrants that: Appellant contends that the judgment against the garnishee should have been for the sum of $4,622.55. On the 15th day of March, 1919, the judgment debtor entered into a certain agreement with the garnishee, in and by which it is expressed, in substance, that the Thornburgh Pressteel Company is desirous of selling to the Commercial Acceptance Trust its accounts receivable, notes, acceptances, leases, mortgages, contracts, and choses in action, therein designated as accounts, evidencing sales and deliveries of personal property usually dealt in by the Thornburgh Pressteel Company; that in consideration of the premises the parties agreed that the Commercial Acceptance Trust would from time to time during the continuance of the agreement purchase such of said accounts belonging to the Thornburgh Pressteel Company as should be acceptable to the Com-first party, and shall be for a certain, undismercial Acceptance Trust and pay therefor 100 per cent. of the net face value of the accounts purchased, "less a charge equal to the legal rate of interest on the money outstanding thereon, of which 77 per cent. of the net face value thereof shall be paid in cash upon acceptance thereof by the second party, and the remaining 23 per cent., less any deductions and plus any "(a) First party, and each debtor named in an account, is solvent and will remain so until maturity thereof; (b) there will be no suspension of business, request for general extension, bankruptcy petition, or any act amounting to a business failure by or against first party or any debtor; (c) every account purchased hereunder and any settlement received thereon will be paid in full at maturity in cash or Chicago par funds; (d) prompt payment will be made to second party of any allowance or credit offered for sale to second party; (e) each amount offered for sale to second party shall represent a bona fide sale and delivery of property usually dealt in by puted, liquidated claim or demand which is due or to become due on the dates set forth; (f) first party will not sell or assign any of its own accounts elsewhere without first giving ten days' written notice to second party of such intention." The sixth clause provides for an assignment in writing of all accounts thus sold and purchased, and that the Commercial Accept |