Volume 108 — Illinois Appellate Court Reports

<p>1. Insurance—What is Meant by the Words “Absolute Fee-Simple Title.”—The words “absolute fee-simple title in a fire insurance policy only mean that the insured does not have a limited interest in the property, but that he claims and holds under a deed of Conveyance, or other evidence of title, purporting to invest him with an estate in fee simple. Parties applying for insurance are not called on to settle questions of title with very great precision.</p> <p>2. Same—Executrix Has the Right to Insure to the Extent of the Property.—An executrix with the legal title to property has full right to insure to the extent of the value of the property. It is not necessary that she should be described as executrix or trustee in the policy. She has a right to insure in her own name.</p> <p>3. Same—Phrase “ Unconditional and Sole Ownership” Construed.—A policy of fire insurance contained the following provision:</p> <p>“This entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee-simple.”</p> <p>Held, that an executrix under a will giving her full power to sell and convey the property at her discretion, and who was also a beneficiary of the trust created by the will, and as such had, during her natural life, if she remain a widow, the exclusive use and enjoyment of all the property devised, is the unconditional and sole owner of it within the meaning of the clause in the policy.</p> <p>4. Words and Phrases—1“Property ” Defined.—Property, in its appropriate sense, means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge presiding. Heard in this court at the October term, 1902.</p>

Trespass on the Case, for damage through the falling of a wall. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in this court at the October term, 1902.

<p>1. Equity—Where the Court Has Jurisdiction to Entertain a Bill for an Accounting.—A court of equity has jurisdiction to entertain a bill for an accounting where there are mutual accounts between the plaintiff and defendant, and also where the accounts are all on one side, but there are circumstances of great complication or difficulty in the way of adequate relief at law, and where, also, fiduciary relations exist between the parties, and a duty rests upon the defendant to render an account.</p> <p>2. Same—In Matters of Account Jurisdiction is Concurrent with Courts of Law.—In respect to the consideration of matters of account the equitable jurisdiction of courts of equity is concurrent with that of courts of law, and no precise rule can be laid down as to the cases in which a court of equity will exercise its jurisdiction.</p>

Assumpsit, upon a benefit certificate. Two cases consolidated. 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, 1902.

<p>Assumpsit, on the common counts. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. Equity—All Persons Should be Made Parties Whose Being Such Necessary to Enable the Court to do Complete Justice.—All persons should be made parties, whose being such is necessary to enable the court to do complete justice. A defendant has a right to require that all interested persons shall be, by being parties to the proceeding, bound by the decree of the court, so that when he is called to perform the decree he may be perfectly safe in so doing.</p> <p>3. Same— What Persons Should be Made Parties.—In every equity suit all persons who have legal rights in the subject in dispute as well as all persons having the equitable right, should be made parties to the litigation.</p> <p>3. Same—Bill for Discovery Not to be Dismissed Because Not Brought in the Name of the Parties Who Are Owners of Judgments.—A bill of discovery under Sec. 49, Ch. 24, R. S., is not to be dismissed because not brought in the name of parties who are the owners of the judgment sought to be satisfied.</p>

<p>1. Verdict—When to be Directed for Defendant.—Where the facts in a case are undisputed and of such a character that reasonable minds would agree without dissent that the injury was caused by the plaintiff’s contributory negligence, and there is no evidence upon which the jury could, in the eye of the law, reasonably find otherwise, a verdict should be directed for the defendant.</p> <p>2. Carriers of Passengers—Party After Leaving the Carrier's Premises is No Longer in Its Charge as a Passenger.—After a party has left the station platform of a railroad and has proceeded along the sidewalk of a public street, he is no longer in the carrier’s charge as a passenger.</p> <p>3. Negligence—Where a Question of Law.—Where a party is so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent, the court may so pronounce it as a matter of law by instructions to the jury.</p> <p>4. Same—Failure to Look is Not, in Law, Negligence Per Se.—While a failure to look as a train is approaching is not in law negligence per se, it is negligence in fact if there are no conditions or circumstances which excuse looking.</p> <p>5. Damages—Marring of Personal ‘Appearance and Humiliation Resulting Therefrom, Are Not Elements for Computation Of.—The marring of personal appearance and humiliation resulting from contemplation of bodily disfigurement are not elements entering into the computation of pecuniary damages for personal injuries sustained by reason of alleged negligence.</p>

<p>Bill to Set Aside a Judgment.—Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Evidence—Of Waiver of Time of Performance Fixed by a Contract.—Where an employer allows a contractor to continue work after the time provided in the contract for the completion of the same, gives him further orders thereunder, and compels him to furnish additional material with no intimation of an intention to forfeit the contract, such conduct is evidence tending to show a waiver of the clause in the contract providing for the time of completion.</p> <p>2. Building Contracts—Provision for Extra Work Performed.— Where a contract, as required by law, is advertised, and let to the lowest responsible bidder, and such contract contains a provision that if extra work, or work not provided for in the contract, is performed by the contractor before prices have been fixed for such work, then the engineer shall estimate the same at such prices as he shall deem just and reasonable, and his decision shall be final; a subsequent agreement for the doing of such extra work, or for the doing of any work that may be considered necessary by reason of the making of the contemplated or permissible changes, need not be let upon advertisement.</p> <p>3. Same—Changes in Work Must Not Be a Material Departure from the Specifications.—Where a contract for the construction of a canal reserved to a sanitary district the right to make alterations in the line, grade, plan, form, dimensions or materials of the work therein provided for, either before or after the beginning of construction, provided that if alterations were made, the general character of the work as a whole be not thereby changed, such provision does not contemplate the substitution of a cement retaining wall in place of a dry rubble wall as provided for in the contract.</p>

<p>1. Insurance—Unless a Warranty is Performed There is No Contract.—A warranty in a policy of insurance is a condition or a contingency, and unless it be performed there is no contract.</p> <p>3. Same—Nature of a Warranty.—A warranty by its very terms precludes inquiry into the materiality of the stipulated fact. In the absence of qualifying clauses, the only question to be decided is as to its truth or falsity. Where it clearly appears by the express terms of the policy, or from the entire contract, that a warranty was intended, the materiality of the fact, matter or circumstance warranted is not a subject of inquiry in aid of the insured, for the latter in such cases will be held strictly to his contract, however immaterial the matter warranted may be.</p> <p>8. Same—Nature of a Representation.—A representation is not, strictly speaking, a part of the contract of insurance, or of the essence of it, but rather something collateral or preliminary, and in the nature of an inducement to it. It need not be literally true. It is sufficient if it be substantially true. A misrepresentation renders the policy void on the ground of fraud, while non-compliance with a warranty operates as an express breach of the contract.</p> <p>4. Same—Contracts to be Broadly and Liberally Interpreted.— Contracts of life insurance are broadly and liberally interpreted in favor of the beneficiaries.</p>

<p>1. Evidence—That Lamps Were Defective Inadmissible Where Contract Was to Make Them in Accordance with a Sample.—Evidence that lamps manufactured under a contract were defective is inadmissible where the question in issue is whether they conform to a sample furnished the manufacturer to be followed.</p> <p>2. Pleading—What Defensive Matter May be Introduced Under the General Issue.—The defendant is entitled under the general issue to introduce every matter of defense which tends to show that he does not owe the plaintiff what the latter claims, and this right is not affected by the fact that he has pleaded the general issue with notice of set-off.</p>

<p>Assumpsit.—Error to the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. Sales—When the Title Passes, Where There is Something to be Done by the Buyer on Which the Passing of the Property Depends.—Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition is fulfilled, even though the goods may have been actually delivered into the possession of the buyer.</p> <p>2. Same—Rules as to Passing of Title Subject to Intentions of the Parties.—The rules as to the passing of title to goods sold are always subject to the intention of the parties.</p> <p>3. Same—To Constitute a Conditional Delivery, it is Not Necessary that the Vendor Should Declare the Condition in Express Terms.—To constitute a conditional delivery, it is not necessary that the vendor should declare the condition in express terms at the time of the delivery. It is sufficient if the intent of the parties that the delivery be conditional can be inferred from their acts and the circumstances of the case.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>Trespass on the Case, on promises. Appeal from the Circuit Court of Cook County; the Hon. Robert B. Shirley, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>Bill to Foreclose a Mortgage.—Error to the Superior Court of Cook County; the Hon. William G. Ewing, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Master and Servant—Servant Choosing an Extra Hazardous Method of Doing His Work, Assumes the Extra Risk.—An engineer of an elevated train who, to save time, chooses an unusual and extra hazardous method of descending from the engine to the street, assumes the extra risk of such action.</p>

<p>1. Practice—Court May at Any Time Amend Entry of Judgment to Make it Conform to that Actually Rendered.—The court may at any time, even after expiration of the term when judgment was entered, amend the entry thereof so as to make it conform to the judgment which the court actually rendered.</p> <p>2. Master in Chancery—Fees Given to Master by Statute Allowable Although Itemized Under Anot er Name.—The fact that fees allowed by statute to a master in chancery are itemized as stenographer’s fees for taking and transcribing testimony taken before the masters in chancery, instead of being referred to as the master’s fee for such service, is immaterial, so long as the amount is correct under the statute.</p> <p>3. Chancery Practice—Defendant May, by Agreement, Waive the Necessity of a Default and Order Pro Confesso.—The parties to a bill in equity may, by agreement, waive the necessity of a default and order pro confesso, and a decree, if warranted by the evidence, would be binding.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this court at the October term, 1902.

<p>Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Robert B. Shirley, Judge presiding. Heard in this court at the October term, 1903.</p>

<p>Bill to Declare a Marriage Void.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Debt, upon a bond. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Attachment.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Administration of Estates—Liability of Heir for the Debts of the Estate at Common Law.—At common law the heir, as such, was not liable for the debts of the estate of the ancestor, but took the real estate free of any claims of general creditors.</p> <p>2. Same—What Must be Shown to Render Heirs Liable for the Debts of the Ancestors Under Sec. in, Ch. 59, R. S.—To render the heirs liable for the debts of their ancestor, under section 12, two things must be shown; first, that the ancestor died seized of personal property insufficient to pay his debts; and, second, that real estate or rents and profits out of the same, descended to the heirs.</p> <p>3. Same—Extent of Liability of the Heirs for the Debts of the Ancestor.—The liability of the heirs for the debts of their ancestor, either at law or in equity, is limited to the amount which comes to them by descent.</p>

<p>Attachment.—Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Jurors—Where Error in Overruling Challenges for Cause is Not .Cause for Reversal.—Errors committed in the trial court in overruling challenges for cause to jurors will not work a reversal, even though the defendants had exhausted their peremptory challenges, unless it is further shown that an objectionable juror was forced upon them and -sat upon the case after they had exhausted their peremptory challenges.</p> <p>3. Husband and Wipe—Where the Rule that Husband and Wife Are Incompetent Witnesses for or Against Each Other Has No Application.—Where the husband has pleaded guilty to a criminal charge, the rule of law that in criminal cases husband and wife are, in general, incompetent witnesses either for or against each other, has no application.</p> <p>3. Corporations—The Statutory Provision that Prima Facie Proof of the Existence of a Corporation May be Made by User, Not Confined to Illinois Corporations.—Section 486 of the criminal code, which provides that prima facie proof of the existence of a corporation may be made by user, is not confined to proof of the existence of an Illinois corporation.</p> <p>4. Criminal Law—No Merger of a Conspiracy with a Felony Where They Are Distinct Offenses.—There is no merger of a conspiracy to burn insured property and obtain by false pretenses the insurance money, with the felony of burning the insured property with intent to injure the insurer. The crime of conspiracy was complete before the property was burned, and the burning was not a necessary part of that crime.</p> <p>5. Instructions—Singling Out and Calling Attention to the Testimony of Certain Witnesses.—An instruction which singles out and calls special attention to the testimony of certain witnesses is erroneous.</p>

Trespass on the case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this court at the October term, 1902.

<p>1. Mutual Benefit Societies—Member Not Bound by Future Amendments or By-laws in the Absence of an Express Agreement.—A member of a mutual benefit society is not bound by constitutional amendments or by-laws enacted after he becomes a member, in the absence of mi express agreement to be so bound.</p>

<p>1. Negligence—Of Defendant Sufficient to Prevent Taking Case from Jury.—Where a gas company knowingly allows gas to percolate from a leaky main into an adjoining house, where it causes an explosion, such action constitutes negligence sufficient to prevent the case being taken from the jury on that point.</p> <p>2. Trespassers—Owner of Premises Not Compelled to Keep Watch to Avoid Injury from.—A person upon his own property is under no obligation to watch lest he be injured by the unlawful act of a person who floods his premises with an explosive gas.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Practice—Final Judgment Can Not be Set Aside at a Subsequent Term.—A court can not set aside or vacate a final judgment at a term subsequent to that at which it was rendered.</p> <p>2. Same—Counter Affidavits on a Motion to Vacate an Order Dismissing an Appeal.—Counter affidavits may be filed on a motion to vacate an order dismissing an appeal.</p>

<p>1. Contracts—Two Instruments Construed Together.—A contract and a letter constituting one transaction may be construed together as one instrument in determining the intention of the parties.</p> <p>2. Same—Parol Evidence Admissible to Explain the Meaning of a Letter Which is Part of a Contract.—Parol evidence of a conversation referred to in a letter which is part of a contract, is admissible to explain the meaning of the letter.</p> <p>3. Instructions—Party Can Not Complain of Errors Where Similar Ones Occur in His Own Instructions.—A party pan not complain of an erroneous instruction where his own instructions contain the same fault.</p>

<p>1. Pleading—Nature of the General Issue.—Where the general issue is pleaded it is a denial of all the plaintiff’s case, and requires the plaintiff to prove his case by a preponderance of the evidence.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Promissory Notes—Where a Subsequent Note is Given for the Same Consideration as a Former One.—Where a subsequent promissory note is given for the same consideration as a former one it is a question of fact for the determination of the jury, whether the former note is thereby satisfied.</p> <p>2. Same—Agreement for Extension Must Be Signed by Both Parties.—An agreement for the extending the time of payment of a note made before maturity and signed only by the maker, is of no effect.</p> <p>3. Same—Mortgagor to Release Himself from Liability on His Note Must See that He Pays the Money to the Holder of the Note.—A mortgagor, to release himself from liability on his note, must see that he pays the money to the holder of the note, who has received it by assignment before maturity.</p> <p>4. Mortgages—Rights of Mortgagor Without Notice of Assignment upon Foreclosure.—It is the rule in this state that the maker of a trust deed of mortgage in the absence of any notice of an assignment, may interpose to a foreclosure proceeding brought by the assignee, any defense arising out of the transaction with the mortgagee, which could be set up in case the bill were filed by the latter.</p> <p>5. Same—Not Assignable at Law.—A mortgage or trust deed is not assignable so as to vest the legal interest, and it is the duty of the purchaser of a mortgage to inquire of tho mortgagor if there is any reason why it should not be paid. Failing to do this the purchaser takes it subject to all the infirmities to which it would have been liable in the hands of the assignor.</p> <p>6. Same—Equity Will Not Enforce an Assignment When the Mortgage Ought Not to Be Enforced in Hands of the Assignor.—A court of equity will not enforce an assignment of a mortgage in the assignee's favor if it ought not to be enforced in the hands of the assignor.</p>

<p>1. Evidence—Secondary Evidence of the Contents of Destroyed Checks.—Where original checks have been destroyed while in the hands of a party who had paid no attention to an order to produce them, slight evidence of the contents of the destroyed checks will suffice. Copies of such checks are admissible in evidence.</p>

<p>1. Contracts—Between a Railroad and Contractor, Relieving the Railroad from Liability for Injuries to Contractor’s Employes, Legal.— A railroad company may lawfully stipulate with a contractor doing work on the railroad right of way, that the latter shall be responsible for all damages which may be claimed on account of injuries occurring to any of the employes o£ such contractor during the prosecution of the work, and shall defend at its sole expense all damages 'which may arise in consequence of such injuries, and such contract absolves the railroad company from liability for damages, whether happening from some cause connected .with work done under the contract or otherwise.</p>

<p>1. Evidence—Inadmissible to Show that an Officer's Return on His Process is Incorrect.—The rights of the parties under a process are fixed by the officer’s return as it appears of record, and if it is false he can ordinarily correct it, and testimony is inadmissible to show that such return is incorrect.</p> <p>2. Checks—Are Assignable Instruments.—In this state a check is an assignable instrument and suit may be brought thereon by any holder to whom it has been assigned in due course of business.</p>

<p>Libel.—Error to the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>Bill to Enjoin. Waste.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Contracts—A Modified’Acceptance is a Rejection.—A modified acceptance of a proposition is in effect the rejection of it, and does not create a contract.</p> <p>2. Same—Furnishing Goods upon a Modified Acceptance.—Where a company upon receiving a modified acceptance of a proposition, acts upon it and furnishes goods thereunder, a contract in accordance with the modified acceptance of the original offer will be inferred.</p>

<p>Trespass on the Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Foreclosure—Rights of Purchaser.—A purchaser at a mortgage sale is entitled to have a master’s deed of the premises made to him at the expiration of the period for redemption and possession of the premises given to him, or to have given to him during the period of redemption, the purchase money by him paid at the sale, together with statutory interest thereon up to the time of such redemption, and also any taxes on the premises, with interest thereon up to the time of redemption, which subsequent to his purchase and before redemption he had paid to protect his rights as a foreclosure sale purchaser.</p> <p>2. Same—Payments Made upon Unredeemed Property After Foreclosure Are for the Benefit of the Purchaser.—Where premises sold at a foreclosure sale have not been redeemed, all payment of ground rent, taxes and insurance made subsequent to the foreclosure sale are payments made upon the property and for the benefit of the purchaser at the mortgage sale.</p> <p>3. Receivers—Nature of the Office.—A receiver is but the hand of the court, and so long as he obeys its orders his action is that of the court. If the receiver is improperly appointed or a receivership improperly continued, the party by whom such appointment was procured or at whose instance such receivership was continued is liable for costs and expenses thus created.</p>

<p>1. Equity—When it Will Not Interfere to Quell Religious Disturbances.—Where no property rights are involved, a court of equity will not interfere to quell religious disturbances.</p> <p>2. Religious Corporations— Trustees Have No Power to Remove a Priest Against the Will of the Members.—Under Sec. 43, Ch. 32, R. S., the trustees of a religious corporation have no absolute power to remove a priest against the will of the members of the church.'</p>

<p>1. Practice—Insufficient Notice to Reinstate a Cause.—A notice to an adverse party of an intention to reinstate a cause, served by leaving a copy of the same at the defendant’s last known offices, when he had left Chicago, Illinois, and that on due inquiry affiant could not ascertain his place of residence, is not in compliance with the statute and is not sufficient to authorize the reinstatement of the cause in the trial court.</p> <p>3. Same—Court May Set Aside a Void Judgment.—A court may, at a subsequent term, set aside a void judgment, or one which the com t had no jurisdiction to render.</p>

<p>Bill to Reform a Policy of Insurance.—Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Statutes—Relating to Production of Papers and Books.—To procure the production of books and papers in court under Secs. 12 and 14, R. S., the petitioner must show that the books and papers which he seeks to compel the production of, contain matter relevant to the investigation then being or about to be conducted by the petitioner.</p> <p>2. Contempt—Order of Court, Although Too Broad. Must be Complied with.—The too great scope or indefiniteness of the order is .no excuse for not complying with the portion which is certain and definite.</p> <p>3. Same—Proceedings Should be in the Name of the People.—Contempt proceedings should be in the name of the people.</p> <p>4. Same—When Judgment Sufficiently Sets Forth, Cause for Which Final Order Was Entered.—A judgment in proceedings- for contempt sufficiently sets forth the cause for which the final order was entered, if there appear upon the face of the order the general object and purpose of the proceeding together with the finding of the court connected by apt reference to the moving papers.</p> <p>5. Same—Proceedings Strictly Regarded.—Proceedings for contempt as well as those resulting in a deprivation of the personal liberty of a subject are strictly regarded.</p> <p>6. Constitutional Law—Extent of Constitutional Right Not to Furnish Evidence Which Might Tend to Criminate One.—The constitutional right of an accused not to furnish evidence which might tend to criminate him extends to all proceedings sanctioned by law. Neither civil nor criminal courts, quasi-judicial tribunals, grand juries, commissioners, courts martial or inquisitors of any kind can compel a person to give evidence which may tend to convict him of a criminal offense.</p> <p>7. Same—Right of Exemption from Furnishing Incriminating Evidence is Personal.—The right of a witness to refuse to answer incrimmating questions or to produce incriminating documents is personal; it can not be claimed for Mm by a mere party to the proceeding, and he can not avail himself of such right by mere silence or mere refusal to obey a subpoena duces tecum. His refusal must be by him placed upon the ground that to do so would be to furnish evidence tending to incriminate himself.</p> <p>8. Fines and Penalties—Commitment is but an Incident Where a Fine is Imposed.—Where a fine is imposed, it is the punishment ordered, and the commitment is but an incident.</p> <p>9. Same—Improper Order of Commitment.—Where the fines of several parties are separate, it is error to commit each of them t¿o jail until Ms fine is paid “ or until he and they and each of them be otherwise released pursuant to law.”</p>

<p>Bill for an Injunction.—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, 1902.</p>

<p>1. Equity Pleading—What a Demurrer Admits.—A demurrer admits all facts well pleaded, but does not admit arguments or legal conclusions contained in the bill.</p> <p>2. Equity—No Power to Enjoin the Exercise of Power Given to Municipal Corporations.—A court of equity has no power to enjoin the exercise of the power given by law to the officers of a municipal corporation.</p>

<p>1. Statutes—Courts Disfavor Giving Them a Retroactive Effect.— Courts lean strongly against giving to statutes a retroactive effect.</p> <p>2. Same—A Construction Giving a Prospective Operation to be Preferred.—A construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal and unavoidable implication from the words of the statute taken by themselves, in connection with the subject-matter and the occasion of the enactment.</p> <p>3. Same—Repeals by Implication.—Repeals of statutes by implication are not favored.</p> <p>4. Same—Legislative Construction. —The act of June 19, 1893, in regard to building associations, is a legislative construction of the act of June 16, 1891.</p>

<p>Bill for an Injunction.—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.</p>

<p>Indictment for Conspiracy.—Error to the Criminal Court of Cook County; the Hon. Abner Smith, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the October term, 1902.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the October term, 1903.

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Husband and Wife—What Does Not Amount to a Present Contract of Marriage.—The following conversation was relied upon as constituting a present contract of marriage : “Mr. Marks said that I could come to him and be his wife.” “I told him I would go with him.” Held, not to constitute such contract.</p> <p>2. Same—Conduct Amounting to Marriage Under a Contract De Futuro.—Where parties competent to contract have a,greed to marry at some future time, and have copula, which is lawful only in the married state, in the absence of any evidence to the contrary they will be presumed to have become actually married by taking each other for husband and wife, and to have changed their future promise to marry, to one of present marriage. In such a case the copula will be presumed to have been allowed on the faith of the marriage promise, and that the parties, at the time of the copula, accepted each other as man and wife.</p> <p>3. Same—Marriage Not to Be Presumed from the Continuance of a Relation Illicit in Its Commencement.—When the relation between a man and a woman, living together, is illicit in its commencement, it is presumed to so continue until a changed.relation is proved. Without proof of subsequent actual marriage, it will not be presumed from continued cohabitation and reputation of a relation between them which was of illicit origin.</p> <p>4. Same—Proof of Cohabitation Does Not, Constitute Marriage.—Proof of cohabitation as husband and wife does not constitute marriage, but it may be evidence of marriage in some cases.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Equity—Where There is a Complete Remedy at Law.—Where there is a complete and adequate remedy at law, it is error for a chancery court to assume jurisdiction.</p> <p>2. Presumptions—As to Evidence Before Chancellor in Absence of a Complete Record.—In the absence of a complete record, this court must assume that the evidence before the chancellor was sufficient to justify the decree. Especially is tills true where the findings of fact recited in the decree are sufficient to sustain it.</p>

<p>1. Receivers—Compensation Within the Discretion of the Court.—In the absence of any legislation regulating a receiver’s salary or compensation, the matter is left entirely to the discretion of the court from which he derives his appointment.</p>

<p>1. Appellate Court Practice—Where the Chancellor's Finding Will Not Be Reversed.—Where the chancellor has seen and heard the witnesses testify, this court will not reverse except where it clearly appears that the evidence does not preponderate in favor of the decree.</p> <p>2. Trusts—Evidence Necessary to Create by Parol.—To establish a trust upon parol evidence, the evidence must be very clear and satisfactory, and it ought to find support in the subsequent conduct of the parties.</p> <p>3. Same—Upon. Personal Property—By Parol—Evidence Must Be Clear.—If it is intended to fasten a trust upon personal property, created verbally, and dependent upon merely oral testimony, the testimony ought to be clear and explicit.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Assumpsit, on a policy of fire insurance. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge presiding. Heard in this court at the October term, 1903.</p>

<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 October term, 1902.</p>

Trespass on the Case, for killing horses. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this court at the October term, 1902.

<p>Bill to Foreclose a Trust Deed.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Garnishment.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Bill to Cancel and Annul an Agreement.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge piresiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Instructions—Stating a Proposition of Law Contrary to Provisions of the Undertaking upon Which Suit Was Brought.—An instruction which states a proposition of law contrary to the express provisions of the undertaking upon which the suit is brought, is erroneous.</p> <p>2. Bill of Exceptions—Must Contain All Happenings and Proceedings at the Trial.—All happenings and proceedings. at the trial should be certified to by the judge in the bill of exceptions, and, can not be brought before a court of review by incorporating them into affidavits.</p>

<p>1. Practice—Courts May Not Enter Satisfaction of Judgment upon a Matter Happening Before the Judgment.—Courts of law may, upon an audita querela, or on motion, enter satisfaction of a judgment upon any good matter which has happened since the judgment, but may not, for any matter which happens before the judgment, and therefore might have been pleaded either at the beginning of the suit or puis darrein continuance.</p>

<p>Bill for a Mechanic's lien.—Error to the Circuit Court of Cook County: the Hon. Richard S. Tuthill, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County: the Hon. Charles G. Neely, Judge presiding. Heard in this court at the March term, 1900.</p>

<p>Bill for a Mechanic’s Lien.—Appeal from the Circuit Court of Peoria County; the Hon. Theodore N. Green, Judge presiding. Heard in this court at the April term, 1902.</p>

<p>1. Real Estate Broker—When Entitled to Commissions.—A real estate broker is entitled to bis commissions when he has procured a purchaser who is ready, willing and able to execute the contract of purchase.</p> <p>2. Propositions op Law—Should Not Be Submitted to Jury.—Questions of law should never be submitted to a jury.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge presiding. Heard in this court at the October term, 1902.

<p>1. City Council—Mayor Must Preside When He is Present.—The law of this state provides that the mayor,when present, shall preside at all meetings of the city council.</p> <p>2. Same—Party Not a Member Can Not Preside.—The functions of the presiding officer are as official as any part of the meeting of the board and can not be exercised by one who is not a member.</p> <p>3. Same—Council and Mayor Must Act in Conjunction.—Where the charter vests the affairs of a city in the hands of the mayor and councilmen, the city council has no power except to act in conjunction with the mayor.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. Hiram Bigelow, Judge presiding. Heard in this court at the October term, 1902.

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Mechanics’ Liens—Right of Owner to Complete Work Abandoned by Contractor.—Under section 33 of the mechanics’ lien law, the sub-contractors and material men, or any of them, upon the abandonment of the work by the contractor, shall have the right to complete the same. In case they do not choose to do so the owners have the right to complete the work.</p> <p>2. Same—What Are Not Payments to Contractor in Violation of the Rights and Interest of the Sub-Contractors, Under Section 23.—Payments made to the contractor in the form of checks to particular persons named therein for labor and material are not wrongful payments under section 23 of the mechanics’ lien law.</p>

<p>1. Evidence—What Account Bootes Are Admissible.—Entries in a book made by a bookkeeper who had no personal knowledge of the correctness of any of the items, but who copies them from time-books kept by numerous laborers and from other like sources, some of the entries not being made until long after the transaction to which they relate, are not admissible as an account book.</p> <p>2. Instructions—Ignoring Matter Relied upon as a Defense, Erroneous.—An instruction which entirely ignores the question of a special contract relied upon as a defense, and tells the jury that the plaintiff was entitled to recover upon a quantum meruit, which was one of the controverted questions in the case, is erroneous.</p> <p>3. Same—As to Weight to be Given to Matter Offered in Evidence.—An instruction to the jury that in determining what weight, if any, is to be given to any book of account or memoranda of account offered in evidence, the jury should consider every fact and circumstance in evidence showing the fairness or unfairness of the account or memoranda, etc., is erroneous. Only such books of account should have been considered by the jury as were admitted in evidence, not those which were merely offered.</p> <p>4. Same—Having No Application to the Facts in the Case, Erroneous.—An instruction which, though it correctly states an abstract proposition of law, has no application to the facts in the case, should be refused.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Bureau County; the Hon. Harvey M. Trimble, Judge presiding. Heard in this court at the April term, 1903.

<p>1. Statutes—Sea. 2, Ch. 110, R. S., Construed.—The requirements of Sec. 2, Ch. 110, R. S., as to the residence of the defendant, are satisfied by proof of actual residence.</p> <p>2. Process—Office of.—The service of process is for the purpose of giving the court jurisdiction of the person of the defendant, and such jurisdiction when obtained by his voluntary act in entering his appearance, is equally effective.</p> <p>3. Practice—Defendant Having Appeared, is Not Dismissed by Withdrawing His Plea—After a defendant has entered his appearance the subsequent withdrawal of his plea does not withdraw his appearance or deprive the court of jurisdiction of his person, or the plaintiff of its rights required by the entry of such appearance.</p> <p>4. Same—What is Required to Give Court Jurisdiction to Render Judgment Against a Non-Resident Defendant.—All that is required to give the court jurisdiction to render judgment against a non-resident defendant, not served with process in the county where the case is pending, and who is sued with others, is jurisdiction of a resident defendant against whom a judgment is also rendered.</p> <p>5. Same—Non-Resident Joint Defendant Has No Voice in the Conduct of the Suit.—Where a resident and non-resident are made defendants to a suit the resident defendant has a right to determine for himself the course he will pursue as to the litigation, as the outcome of the suit determines nothing as to the relative rights of the defendants.</p> <p>6. Bills and Notes—Statute of 1896, Relating to Negotiable Instruments, Liberally Construed.—The statute relating to negotiable instruments is remedial in character, and should be given a liberal construction.</p> <p>7. Same—Diligence Required by Law of Indorsee May be Waived by Indorser.—While the law requires the indorsee of a promissory note to exercise certain diligence to collect the note from the maker before he could make the indorser or assignor pay it, yet this requirement is imposed for the benefit and protection of the indorser or assignor, and as between him and the indorsee he can waive the condition.</p>

<p>Debt, for a penalty. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>Trespass on the Case.—Appeal from the County Court of Knox County; the Hon. P. S. Post, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Knox County; the Hon. John A. Gray, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Kankakee County; the Hon. John Small, Judge presiding. Heard in this court at the April term, 1908.</p>

<p>Mandamus.—Error to the Circuit Court of Knox County; the Hon. John A. Gray, Judge presiding. Heard in this court at the April term, 1903.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge presiding. Heard in this court at the April term, 1903.

<p>Replevin.—Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>1. Principal and Agent—Principal Liable for Acts of Agent Within the Scope of His Authority.—The principal is liable for the acts of the agent when within the scope of the authority conferred upon him.</p>

<p>1. Contracts—May be Rescinded Before They Are Complete,— Where a contract provides for the furnishing of a bond to secure the performance of the contract, it is not complete until this bond is furnished, and until that time, may be rescinded.</p>

Trespass on the Case, for damages to land by flooding. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge presiding. Heard in this court at the April term, 1903.

<p>1. Practice—Insufficient Objection to Question.—The simple objection to a lengthy hypothetical question that “The elements are not in the evidence on which the hypothetical question is based,” is insufficient where counsel does not point out what elements of the question are unfounded.</p> <p>2. Instructions—That a City is Bound to Use Reasonable Care to Keep Its Sidewalks “ in Good and Reasonably Safe Condition.”—An instruction that the city is bound to use reasonable care to keep its sidewalks in good and reasonably safe condition for foot passengers using due care for their own safety is not misleading when, by other instructions, the jury are informed that all the law requires of a city is that it exercise reasonable care to keep its sidewalks in a reasonably safe condition for travel.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Jo Daviess County; the Hon. Richard S. Farrand, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>Debt, for a statutory penalty. Appeal from the Circuit Court of Mercer County; the Hon. Frank D. Ramsay, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>1. Contracts—Whether Written or Verbal.—A. written proposition made by one party to another, when accepted and acted upon by the latter, becomes a written contract, binding as such upon both parties.</p> <p>2. Evidence—Errors Waived by Objecting Party Examining Witnesses on Same Subject.—Error in the admission of evidence is waived by the objecting party subsequently examining other witnesses on the same subject.</p>

<p>1. Real Estate Brokers—When Entitled to Commissions.—Where real estate is listed with a broker for sale and he procures a purchaser ready, willing and able to take the same upon the terms by which the broker is authorized to make the sale, he is entitled to his commission.</p> <p>2. Appellate Court Practice—When Case Will Not Be Reversed for Slight Errors.—A. case will not be reversed for slight errors where the proof shows appellee's demand to be meritorious, and the defense without merit.</p>

<p>1. New Trials—Proper Diligence.—A party who is taken by surprise on the trial of a case by the shifting of his adversary’s ground, and is unable then to meet it without discontinuing the trial, but can obtain evidence to do so upon another trial, can not be charged with want of diligence on a motion for a new trial on the ground of newly-discovered evidence.</p>

<p>1. Pleading—Variance Between Declaration and Proof.—Proof that a party injured in a mine proceeded to the shaft to give an order, not by reason of any direction from the superintendent, will not sustain a recovery on a declaration alleging that the superintendent gave him the order to do what he did.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of McHenry County; the Hon. Charles H. Donnelly, Judge presiding. Heard in this court at the October term, 1902.

<p>Assumpsit.—Error to the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge presiding. Heard in this court at the October term, 1902.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Marshall County; the Hon. Theodore N. Green, Judge presiding. Heard in this court at the April term, 1903.

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>1. Statutes—Act of 1898 in Regard to Assessments, Construed.—In the enactment of “An act for the assessment of property and providing the means therefor, and to repeal a certain act therein named,” in force July 1, 1898, it was not the intention of the General Assembly to require the county clerk to procure and provide duplicate assessment books for the listing and assessment of personal property, to be delivered to the supervisor of assessments for the use of the assessors.</p>

<p>1. Practice—Result of a Defective Bill of Exceptions.—Where the bill of exceptions does not purport to contain all the evidence, and does not contain any exception to any ruling of the trial court, nor any exception to the finding of the court or to the judgment, and there is nothing in the record showing that it was ever filed in the office of the clerk of the court below, the record presents nothing for the consideration of this court.</p>

<p>1. Fraternal Insurance—Policy Will be Construed to Avoid Allowing One of the Parties to be Judge in Its Own Case.—The trend of judicial authority is so decidedly against the propriety of allowing one of the parties, or its special representative, to be judge or arbitrator in its own case, that even a strained interpretation will be resorted to, if necessary, to avoid such a result.</p> <p>2. Same—Compliance with a Mode of Auditing Claims Not a Condition Precedent to Right of Recovery.—Plaintiff held a certificate in a fraternal insurance company, the by-laws of which provided for a certain mode of auditing claims before payment. Held, that the compliance with the by-laws as to such mode is not a condition precedent to the right of recovery, and that the certificate is an absolute agreement to pay the insurance.</p> <p>3. Same—In Matters of Discipline or Policy Member Should Resort to Method of Procedure Prescribed by Association.—Where a controversy is concerning the discipline or policy of the order or fraternity, the member must resort to the method of procedure prescribed by the association, including the remedy by appeal; but where the member claims money due on a contract of insurance, the right to resort to the law courts to coerce payment will not be abridged by the right of appeal from a lower to a higher tribunal of the society, as conferred by its laws and rules.</p>

<p>1. Foreclosure—Insufficient Affidavit for Publication of Notice.—An affidavit for publication of notice which does not state that any inquiry has been made to.ascertain the place of residence of the defendant, is insufficient to warrant a publication of notice.</p> <p>2. Same—Insufficient Certificate of Publication.—A certificate of publication which recites that the newspaper in which the notice was published was “ a weekly newspaper published at Waukegan, Illinois,” but fails- to state that the newspaper was of general circulation in that county, is insufficient in law to give the court jurisdiction of the defendant.</p>

<p>Assumpsit, on a promissory note. Error to the Circuit Court of Kankakee County; the Hon. John Small, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>1. Actions—In Whose Name Suit for Conversion Should Be Brought.—A suit for the conversion of property must be brought in the names of the persons entitled thereto at the time of the conversion.</p> <p>2. Partnership—Partners Have a Joint Interest, in All the Partnership Property.—Each member of a partnership has a joint interest in all the partnership property.</p>

<p>Appeal from the County Court of Fulton County; the Hon. Meredith Walker, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>1. Officers—Duty of State’s Attorney to Pay County Superintendent of Schools, Balance Over His Fees and Commissions.—It is the duty o: the state’s attorney to pay to the county superintendent of schools any balance in his hands, over his fees and commissions, on the first day of March in each year, and it is immaterial whether the County Court has approved the report and ordered the balance paid to the county superintendent or not.</p>

<p>1. Malicious Prosecution—Evidence of Attorney's Advice May be Owen in Defense.—Where one is sued for maliciously commencing a criminal prosecution against another, he may show that he made a full disclosure of all the facts to a reputable attorney and acted upon his advice, notwithstanding it may appear that the party accused is not guilty.</p>

<p>1. Actions—Writ of Error a New Suit upon the Record.—A writ of error in a suit on an insurance policy sued out more than two years after the fire occurred is a new suit upon the record, but not upon the policy, within the meaning of a provision in the policy that the suit shall not be maintained upon it unless commenced within one year after the loss occurs.</p> <p>2. Bill of Exceptions—Rulings of Trial Court Not Contained in, Can Not he Considered on Review.—Where rulings of the trial court urged for error are not preserved in the bill of exceptions, this court can not consider them.</p> <p>3. Practice—Cross-Examining Witness on Matter Not Touched on in the Direct Examination.—It is improper to cross-examine a witness upon matters not touched upon in his direct examination.</p> <p>4. Evidence—Privileged Communications — Statements Made to Attorney Hired to Make Out Proofs of Loss for Fire Insurance.—A communication between lawyer and client while the former was employed in preparing proofs of loss preparatory to collecting fire insurance, is a privileged communication.</p> <p>5. Same—Of a Conversation with a Party Not a Witness.—It is error to admit evidence of a conversation between a witness and a party not a witness and not subject to cross-examination.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Fulton County; the Hon. John J. Glenn, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Breach of Promise, of marriage. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge presiding. Heard in this court at the November term, 1902,</p>

<p>1. Quo Warranto—Practice in.—Where an information is filed in a quo warranto proceeding, no proof or evidence is necessary to support it, but the duty is thrown upon the party whose right to exercise certain functions is questioned, to show perfect lawful authority for holding and exercising them.</p> <p>2. Same—Bight Belongs to People.—The right to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise belongs to the people, as a part of their sovereignty.</p> <p>3. City Council—Has Exclusive Jurisdiction in Contests Between Candidates for Membership.—A city council has exclusive jurisdiction in a contest between two persons for the office of alderman; and its decision is conclusive upon the contestants themselves, but is ineffective to conclude the people in their sovereign capacity to call in question, by proceedings in the nature of quo warranto, the right of the successful contestant to hold such office.</p> <p>4. Elections—Ballots Best Evidence of Result, When.—Ballots are the best evidence of the result of an election if they have been preserved in the manner and by the officers prescribed by the statute, and have not been so exposed to the reach of unauthorized persons as to raise a probability of their having been tampered with.</p> <p>5. Practice—Where Parties Waive a Jury.—Where the parties waive a jury, and the cause is tried by the court, sitting as a jury, the court stands in the place of the jury, and the decision will be reversed or affirmed by the same rules which govern when the facts are tried by a jury, and the same force and effect will be given to the finding of a judge as to the verdict of a jury.</p>

<p>1. Continuance—Insufficient Affidavit.—An affidavit in support of a motion for a continuance grounded upon the unavoidable absence of the superintendent who had charge of the witnesses and preparation of the case, and possessed peculiar knowledge concerning it, necessary for a fair trial, is insufficient where it is not shown that some other agent or officer of the party could not do as well.</p> <p>2. Instructions—As to What Is Not Necessarily Negligence, Erroneous.—An instruction to the jury that it is not necessarily a matter of negligence to alight from a moving train, is erroneous. What is or is not negligence is not a question of law for the court, but always a question of fact for the jury.</p> <p>3. Same—Calling Attention to Particular Facts, Misleading.—An instruction which calls attention to particular facts pointed out, giving-them undue prominence, is misleading.</p>

<p>Trespass on the Case.—Death by negligent act. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Madison County; the Hon. Martin W. Schaffer, Judge presiding. Heard in this court at the August term, 1902.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in this court at the August term, 1902.

<p>1. Fellow-Servants—Burden of Proving the Relation is upon the Defendant.—The burden of proving the relation of fellow-servants is upon the defendant.</p> <p>2. Instructions—Where the Same Errors Appear in the Instructions of Both Parties.—A party can not complain of erroneous instructions given in behalf of his adversary where similar errors appear in his own instructions.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge presiding. Heard in this court at the August term, 1902.

<p>Trespass on the Case, for damage to crops from overflow. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>1. Practice—judge of Trial Court to Certify What Was Done in His Court.—It is for the judge of the court where the case was tried to say what has been done in that court. Affidavits can not be considered to show that a part of the record is untrue.</p> <p>2. Appellate Court Practice—Where No Proper Briefs Are Filed.—Where the appellant has failed to file any proper briefs in the case, the judgment of the court below will be affirmed.</p>