Volume 109 — Illinois Appellate Court Reports

<p>1. Instructions—Giving Undue Prominence to Particular Pacts, Misleading.—An instruction which gives undue prominence to particular facts is misleading.</p>

<p>1. Instructions—Party Can Not Complain of an Infirmity Where His Own Instructions Show the Same Fault.—Where the party complaining of an instruction of his adversary, has induced the court to give an instruction containing the same vice of which he complains, such instruction will not be ground for a reversal of the judgment.</p>

<p>Assumpsit, on a benefit certificate. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge presiding. Heard in this court at the November term, 1903.</p>

<p>Debt, on an official bond. Appeal from the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge presiding. Heard in this court at the November term, 1903.</p>

<p>Bill for an Accounting.—Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Assumpsit, on a certificate of insurance. Appeal from the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Debt, upon replevin bonds. 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. Statute of Frauds—Promise to Answer for the Debt of Another Must be in Writing.—No action shall be brought whereby to charge the defendant upon any special promise to answer for the debt of another person unless the promise upon which such action shall be brought shall be in writing and signed by the person to be charged therewith.</p>

<p>Assumpsit.—Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge presiding. Heard in this, court at the November term, 1903.</p>

<p>Trespass on the Case.—Death by negligent act. Appeal from the Circuit Court of Adams County; the Hon. Thomas N. Mehan, Judge presiding. Heard in this court at the November term, 1903.</p>

<p>Bill for an Injunction.—Appeal from the City Court of Mattoon; the Hon. Lapsley C. Henly, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Trespass on the Case.—Appeal from the Circuit Court of Cass County; the Hon. Thomas N. Mehan, Judge presiding. Heard in this court at the May term, 1903.</p>

Assumpsit, upon a certificate of life insurance. Appeal from the Circuit Court of McDonough County; the Hon. George W. Thompson, Judge presiding. Heard in this court at the November term, 1902.

<p>Trover.—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>Debt, to recover rent. Appeal from the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge presiding. Heard in this court at the November term, 1903.</p>

<p>1. Equity—Will Not Interfere Where There is an Adequate Remedy at Law.—Where there is a full and adequate remedy at law, equity will not take jurisdiction.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge presiding. Heard in this court at the November term, 1902.

<p>Assumpsit.—Error to the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Assumpsit.—Common counts. Appeal from the County Court of McLean County; the Hon. Holland A. Russell, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>1. Chancery Practice—Damages for Wrongfully Suing Out an Injunction.—A defendant is entitled to damages for the wrongful suing out of an injunction, and attorney fees necessarily incurred in securing a dissolution of it are a proper element of damages, regardless of whether the fees were paid to an attorney for arguing a motion to dissolve preliminary to a hearing, or whether they were paid to him for securing a dissolution upon a hearing.</p> <p>2. Injunctions—Measure of Damages for Injury to Business.—The measure of damages for tying up a merchant's goods which he had contracted for and partially paid for, through the wrongful suing out of an injunction, is the probable fruits of the business.</p>

<p>Bill to Foreclose Mortgages.—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>1. Homestead—Can be Extinguished Only in the Mode Provided by Statute.—The right of homestead can be extinguished only in the mode provided by statute. The law exempts it from debts, and the homesteader is required to perform no act, to discharge no duty, nor manifest any intention to avail himself of its benefits.</p>

<p>Assumpsit.—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>1. Highways—What Facts Do Not Constitute a Dedication.—Where a strip of land was never attempted to be dedicated to the public by the owners thereof, and the public had not acquired a road thereover by user, for the reason that one of the owners was a minor when the strip was fenced out, and when he became of age refused to recognize any right of the public therein, and the road authorities expressly refused to recognize it as a public road until 1891, there has been no dedication of the strip as a highway.</p>

<p>1. Insurance—Appraisement Clause—Condition Precedent.—A policy of insurance contained a provision that in the event of disagreement as to the amount of loss, it should be ascertained by two competent and disinterested appraisers, the insured and the company each selecting one, and the two so chosen should first select a competent and disinterested umpire to whom they should submit their differences, if they failed to agree. Held, that in a case coming within the provision, the insured was bound to have the amount of loss ascertained by appraisement, or at least to offer to have it so ascertained, and that the appraisement became a condition precedent to bis right of action.</p> <p>2. Same—No Duty Rests upon Company to Take Initiative in Selection of Appraisers.—In case of a disagreement no duty rests upon the insurance company, under an appraisement clause, to take the initiative in the selection of appraisers. It may sit by and await the demand of the insured for an appraisement.</p>

<p>1. Practice—Section 31 of the Practice Act Does Not Apply to Appeals.—Section 31 of the practice act has no application to the dismissal of an appeal. Either or both parties to a suit before a justice of the peace may take an appeal. And the party perfecting such an appeal by entering into the bond prescribed by law has the right to control the appeal so taken by him, and if for any reason he does not desire to further prosecute such appeal, or to carry the costs and burdens of it, he may dismiss the same as a matter of right, without consent of the opposite party or leave of the court.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge presiding. Heard in this court at the November term, 1902.

Trespass on the Case, for injury to horses during transportation. Appeal from the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge presiding. Heard in this court at the November term, 1902.

Assumpsit, for real estate broker’s commissions. 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>Bill to Construe a Will.—Appeal from the Circuit Court of Logan County; the Hon. John H. Moffett, Judge presiding. Heard in this court at the November term, 1903.</p>

<p>1. Sidewalks—Where Municipality is Responsible for Injuries Caused by Defects in.—Where a sidewalk is old and rotten and this condition has existed so long that it should be inferred that the city authorities knew of it, the city is liable for injuries resulting from such condition to a person in the exercise of proper care.</p>

Assumpsit, for necessaries furnished to wife. Appeal from the County Court of Champaign County; the Hon. Calvin C. Staley, Judge presiding. Heard in this court at the November term, 1902.

<p>Assumpsit, on promissory notes. 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. Contracts—Measure of Damages for Breach of Contract to Deliver Grain.—The measure of damages for the breach of a contract to deliver grain is the difference between the contract price and the market price when the grain was deliverable and the breach of contract occurred.</p> <p>3. Verdicts— Where This Court Will Not Disturb.—Where the evidence of either party would support, a verdict in his favor this court will not disturb the verdict for the sole reason that it is not supported by the evidence.</p>

<p>Attachment.—Appeal from the County Court of Vermilion County; the Hon. F. M. Shonkwiler, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Bill to Settle Partnership, and for an accounting. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>1. Instructions—That a Preponderance of Evidence is More and Better Evidence, Inaccurate.—An instruction to the effect that a preponderance of evidence is more and better evidence is inaccurate.</p> <p>2. Evidence—What is the Best Evidence is a Question for the Court.—What is the best or secondary evidence is generally a question of law for the court, and it is misleading to submit it to the jury.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Adams County; the Hon. John C. Broady, Judge presiding. Heard in this court at the November term, 1902.

<p>1. Contracts—Written Contracts Can Not Be Delivered in Escrow to Take Effect on a Condition.—A contract in writing can not be delivered in escrow to the other party to take effect on a condition resting in parol and not appearing on the face of the instrument.</p> <p>3. Practice—Recoupment May Be Shown Under the General Issue.—Matter of recoupment may be shown under the general issue.</p> <p>3. Principal and Agent—Principal Bound Only by Acts of Agent Within the Scope of Sis Agency.—The principal is bound only by the promises of his agent which come within the scope of the agency.</p>

<p>1. Practice—Court May Dispose of Motion at Term Subsequent to That at Which it Was Made.—Where a motion to vacate an order appointing a receiver is made at the same term that the order was made, it is competent for the court to entertain and dispose of the motion at a subsequent term, and it makes no difference that the two terms are held by different judges.</p> <p>2. Receivers—Where the Mortgage Provides for Appointment to Collect Bents and Profits. —A provision in a mortgage for the appointment of a receiver in case of foreclosure to collect the rents and profits until the expiration of the redemption period, authorizes such appointment regardless of the mortgagor’s insolvency.</p> <p>3. Same—Where One May be Appointed by the Court in the Absence of Provision for Same in the Mortgage.—The court may appoint a receiver to collect the rents during the redemption period and apply them on the indebtedness, though the mortgage contains no provision to that effect, where it appears that the property is insufficient security and that the party personally liable is insolvent.</p> <p>4. Debtor and Creditor—Judgment Creditor Has No IA-en on Bents and Profits of Debtor's Land.—A judgment creditor, after a sale of his debtor’s land on execution, is not entitled to have a receiver appointed to take possession of the land and collect the rents and profits therefrom during the statutory period of redemption, and apply them to the unpaid part of his judgment.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge presiding. Heard in this court at the November term, 1902.

<p>Assumpsit.—Error to the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Assumpsit, on a promissory note. Error to the Circuit Court of Coles County; the Hon. Lapsley C. Henly, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>I. School Law—Formation of New District.—In the formation of a new school district, it is not necessary to acquire the signatures of two-thirds of the legal voters in each of the old districts to be affected, to the petition. The signatures of two-thirds of the legal voters in the territory proposed for the new district are sufficient.</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, 1903.</p>

<p>1. Wills—Lapsed Legacies—A testator made a will bequeathing all his property to a brother, Hugo Thornley, his heirs and assigns. At the time of the testator’s death, his brother, Hugo Thornley, had died, and the only heirs at law were sixteen nephews and nieces, children of the deceased brother, Hugo Thornley, and of three deceased sisters. Held,</p> <p>The bequest to Hugo Thornley lapsed by reason of his death before that of the testator.</p> <p>The estate passed to the descendants of the deceased brother and deceased sisters per stirpes and not per capita.</p> <p>2. Administration of Estates—Power of Court to Set Aside Order of Distribution.—Where, after an order of distribution has been made, and afterward a party files objections to the report of the administrators on the ground that they obtained a conveyance of his interest through fraud and deception, the court has power to set aside its order of distribution without a previous decree of a court of chancery canceling the conveyance.</p> <p>3. Compromise—Of Disputed Claims—Courts Favor Them.—Courts look with favor upon the amicable settlement of disputed claims between litigants.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>This case is controlled by decision in The City of Sullivan v. W. K. Whitfield, ante.</p>

Trespass on the Case.—Subsidences caused by undermining land. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge presiding. Heard in this court at the May term, 1902.

<p>Appeal from Probate.—Appeal from the Circuit Court of Logan County; the Hon. John H. Moffett, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Mandamus.—Appeal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, Judge presiding. Heard in this court at the November term, 1902.</p>

<p>Action for Damages to Crops, by live stock. Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Sellar, Judge presiding. Heard in this court at the November term, 1902.</p>

Trespass on the Case.—Damage by fire set by locomotive. Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Sellar, Judge presiding. Heard in this court at the November term, 1902.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge presiding. Heard in this court at the November term, 1902.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Adams County; the Hon. John C. Broady, Judge presiding. Heard in this court at the November term, 1902.

<p>1. Mortgages—Lien of Mortgagee in Possession is Superior to Attachment Writ.—The lien of a mortgagee who has taken possession of a mortgaged mare upon his mortgage before an attachment writ was levied upon her is superior to that of the attachment writ.</p> <p>2. Replevin— When Demand is Not Necessary.—Where mortgaged chattels-in the possession of the mortgagee are levied upon for a debt of the mortgagor a demand by the mortgagee is not necessary before bringing replevin.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge presiding. Heard in this court at the May term, 1903.</p>

Trespass on the Case, for personal injuries. 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>Bill for Separate Maintenance.—Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge presiding. Heard in this court at the November term, 1903.</p>

<p>Replevin.—Appeal from the Circuit Court of Vermilion County; the Hon. Henry Van Sellar, Judge presiding. Heard in this court at the May term, 1903.</p>

<p>1. Husband and Wife—Conduct Justifying a Wife in Living Apart from Her Husband.—A wife who is not herself in fault is not bound to live and cohabit with her husband if his conduct is such as to directly endanger her life, person or health, nor where the husband pursues a persistent, unjustifiable and wrongful course of conduct toward her which will necessarily and inevitably render her life miserable, and living with him as a wife unendurable.</p> <p>2. Same—Law Does Not Encourage Their Living Apart.—Ho encouragement can be given to the living apart of husband and wife. The law and the good of society alike forbid it.</p> <p>3. Same—Trivial Difficulties Will Not Justify Separation.—Incompatibility of disposition, occasional ebullitions of passion, trivial difficulties. or slight moral obliquities, will not justify separation.</p> <p>4. Appellate Court Practice—Where Trial Court’s Findings of Facts Will be Reversed.—Where the evidence is clearly against the party in whose favor the decree of the trial court was rendered, the decree will be reversed.</p>

<p>t. Landlord and Tenant—Crops Damaged When Left on Land Contrary to Terms, of Lease.—Where a landlord leases land with the provision that the tenant should remove his crops from the fields prior to December 25th, so that the other tenants on the farm might turn out their stock, and that if his crops were not removed before that time they should remain on the premises at the tenant’s risk and peril, and that the tenant should not hold the landlord or other tenants liable for their stock trespassing upon the crops and damaging them, and the tenant’s crops were damaged by reason of his ignoring such provision, he can not recover.</p>

<p>Assumpsit.—Appeal from the City Court of Canton; the Hon. P. W. Gallagher, Judge presiding. Heard in this court at the May term, 1903.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Douglas County; the Hon. Solon Philbrick, Judge presiding. Heard in this court at the May term, 1903.

<p>1. Instructions—Calling for a Stronger Degree of Proof than a Preponderance, Erroneous.—.An instruction in a civil action that calls for a stronger degree of proof than a preponderance, such as that the jury should be V convinced ” or “ satisfied,” imposes a greater burden on the plaintiff than the law demands.</p> <p>3. Same—Where an Imperfect Instruction is Cured by Others.— Where the correct rule of law is repeated several times in instructions, the giving of one instruction stating the same rule incorrectly will not necessarily be prejudicial error.</p>

<p>1. Instructions—Should be Accurate Where the Evidence is Conflicting.—Where the evidence is conflicting, it is of the highest importance that the jury should be fully, properly and accurately instructed.</p> <p>2. Same—As to Preferring Creditors.—An instruction that a person who is indebted and unable to pay all his debts in full, may prefer any one or more of his bona fide creditors to the exclusion of all others, and in the payment of a bona fide indebtedness to one of his creditors, a debtor may exhaust the whole of his property, so as to leave nothing for his other creditors, is erroneous.</p> <p>3. Sale—Pos session Remaining in Vendor, is Fraudulent Per Se. —Upon a sale of personal property in the possession of the vendor, a change of possession is essential to protect the title of the vendee against attaching or execution creditors of the vendor. If possession remains with the vendor, it is fraudulent per se against creditors.</p> <p>4. Same—Change of Character of Possession Should be Indicated.—The change in the character of possession should be indicated by such outward, open, actual and visible signs as can be seen and known to the public, or persons dealing with the property.</p>

<p>Appeal from the Circuit Court of Pike County; the Hon. Thomas N. Mehan, Judge presiding. Heard in this court at the May term, 1903.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court, of Montgomery County; the Hon. William M. Farmer, Judge presiding. Heard in this court at the May term, 1903.

<p>Attachment.—Error to the County Court of Schuyler County; the Hon. H. V. Teel, Judge presiding. Heard in this court at the May term, 1903.</p>

<p>Indictment, for conspiracy. Error to the Circuit Court of Edgar County; the Hon. Henry Van Sellar, Judge presiding. Heard in this court at the May term, 1903.</p>

<p>1 Evidence—Declaration of a Party in His Own Favor, Not Admissible in His Behalf.—The declarations of a party in his own favor are not admissible in his own behalf.</p> <p>2. Same—What is Not a Part of the Res Gestes.—Statements made long after the transaction, are .not a part of the res gestes.</p> <p>3. Same—Where the Case is Close on the Facts.—Where the case is close on the facts, incompetent evidence is necessarily prejudicial.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge presiding. Heard in this court at the May term, 1903.

Trespass, for assault and false imprisonment. Appeal from the Circuit Court of Hancock County; the Hon. John A. Gray, Judge presiding. Heard in this court at the May term, 1903.

<p>Replevin.—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. Libel—Evidence of Repetition of Defamatory Matter Admissible to Prove Malice.—In the trial of an action for libel, evidence of a repetition by the defendant of the defamatory matter complained of, is admissible to prove malice, and the plaintiff may give in evidence other publications, being of like import to those declared upon, or explanatory of any ambiguity contained therein.</p> <p>2. Same—Verbal Repetition of Libelous Matter Admissible to Prove Malice.—A verbal repetition of libelous matter is admissible to prove malice.</p> <p>3. Same—Evidence Admissible to Explain Terms Used in Libelous Matter.—Evidence is admissible to explain the expression “ fauls swearing ” as used in alleged libelous matter.</p> <p>4. Same—Malice Implied by Use of Words Actionable Per Se.—When slanderous words, actionable per se, are uttered, the law implies malice and consequent, injury.</p> <p>5. Idem Sonans—“False" and “ Fauls."—The word “false” is idem sonans with the word “ fauls,” and a letter containing the phrase “ I will not do as much 'fauls’ swearing as Billie did in that case,” is admissible in evidence under a declaration in a libel suit charging the use of the words “ I will not do as much false swearing as Billie did in that case. ”</p> <p>6. Words and Phrases—What the Word “ Family ” Includes.—The word “ family ” includes parents, children and servants.</p> <p>7. Instructions—Mentioning Amount of Ad Damnum. —An instruction offered by plaintiff mentioning the amount of the ad damnum is pernicious, but is not reversible error in this case.</p> <p>8. Same—Not Error to Give Two Practically Alike.—While an instruction may be refused because practically like another already given, it is not error to give them both.</p> <p>9. Punitive Damages—Where They Should Be Given.—In a libel suit, where the libelous charge was communicated only to the father of the plaintiff and he testified that he did not believe it, punitive damages are the only kind to be considered.</p> <p>10. Damages—In. Libel—When $500 Not Excessive.— Defendant, by a letter to the father of the plaintiff, deliberately charged plaintiff with the crime of perjury. He afterward repeated verbally, substantially the same charge, once to the brother of the plaintiff, and several times to his father. The evidence shows that defendant is worth at least $100,000. No attempt was made to justify the libel. Held, $500 damages not excessive.</p>

<p>1. Intoxicating Liquors—Evidence Sufficient to Sustain a Recovery of Damages for Sale of.—Evidence in the case showed that a large quantity of whisky and beer was shipped into the plaintiff’s home town and delivered to her husband, but failed to directly show any specific shipments to him by the defendants. It was shown, however, that boxes or bottles containing beer and whisky were delivered to him by the drayman, and that he drank from the same and became intoxicated; that on two occasions lie visited the place of business of defendants and drank four different drinks of intoxicating liquor. It was also shown that collections in favor of defendants and against plaintiff's husband were made through the local bank; that a number of the bottles containing liquor which were delivered to plaintiff’s husband by the drayman, had the name of the defendants’ company blown upon them. Plaintiff also testified that her husband on one occasion, at least, brought home a bottle upon which the name of the defendants’ company was blown; that it contained whisky, and that he had many others of the same kind; and a statement purporting on its face to be rendered by the defendants’ company to plaintiff’s husband was introduced in evidence, in which appeared the item, “Box No. 581, $1.60.” Held, that such facts and circumstances, and the inferences which may be reasonably drawn therefrom, are sufficient, prima facie, to establish the fact that the defendants sold and delivered liquor to the plaintiff’s husband, from the use of which he became intoxicated, and habitually so, to the injury of plaintiff.</p> <p>2. Evidence—Incompetent Evidence Affecting Amount of Verdict.—Where improper evidence could over-affect or influence the jury upon the question of the amount of damages to be assessed, such error is not prejudicial where the competent evidence upon that question fully justifies the amount of the verdict.</p> <p>3. Same—Facts Admissible When Tending to Prove Averments of Declaration.—Facts and circumstances which, when standing alone, might have little probative force, are admissible if, when taken together with all the other facts and circumstances appearing in evidence, they tend to fairly prove the averments of the declaration.</p> <p>4. Instructions—In Language of the Statute, Proper.—An instruction which gives but the language of the statute under which the suit was brought and prosecuted, is proper. If the other party desires a construction of the language used, he is at liberty to prepare and offer an instruction for that purpose.</p> <p>5. Same—Imperfect One Cured by Others Given.—An instruction which does not require the jury to find their verdict from the evidence is not misleading where the others of the series given repeatedly give the jury the true rule.</p>

<p>Assumpsit.—Error to the Circuit Court of Schuyler County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1903.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Adams County; the Hon. Harry Higbee, Judge presiding. Heard in this court at the May term, 1903.

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge presiding. Heard in this court at the May term, 1903.</p>

<p>Assumpsit, on a beneficiary certificate. Appeal from the Circuit Court of Vermilion County; the Hon. Morton W. Thompson, Judge presiding. Heard in this court at the May term, 1903.</p>

<p>1. Evidence—Conclusions of Witnesses from Unsworn Statements of Others as to Value of and Title to Land., Not Admissible.—Testimony of mere conclusions of a witness, based in part on unsworn statements of others, is inadmissible to prove the duration of adverse possession of land, or its value, where it does not appear that he ever saw the land before making a survey, or that he had any knowledge whatever to qualify him to testify to its value.</p> <p>2. Same—Evidence of Plaintiff that Be Relied upon Misrepresentations of Defendant, Admissible.—It is not error to permit the plaintiff to testify that he believed and relied upon the alleged misrepresentations of the defendant.</p> <p>3. Actions—Plaintiff May Recover for Misrepresentations in Purchase of Land Although Title is Taken in Wife's Name.—The right of a party to recovery of damages sustained through misrepresentations made by the person from whom he has purchased land is not affected by the fact that he took the title to such land in his wife’s name, where the whole consideration which entitled him to the conveyance moved from him and not from his wife.</p> <p>4. Statute of Limitations— Test Whether Plea Should be Allowed to an Amended Declaration.—In determining whether the plea of the statute of limitations should be sustained to an amended declaration the test is, does the amendment state a new and different cause of action or does it restate the cause set out in the former pleadings.</p> <p>5. Same—Change of Plaintiff is Not a Change of Cause of Action.—A mere change of plaintiff is not such a change of a cause of action as will enable a defendant to successfully plead the statute of limitations.</p> <p>6. Deceit—Measure of Damages in.—The measure of damages in an action for deceit arising from the exchange or purchase of real property is the difference between the actual value of the land contracted for by the plaintiff and what it would have been worth if it were as represented, together with lawful interest on such difference.</p>

<p>1. Evidence—What is Improper in Proceeding of Distress for Rent.—Evidence in relation to the giving and recording of a chattel mortgage by defendant to plaintiff, covering broom corn raised on the leased premises, is incompetent and immaterial, where the only issues properly before the jury, were the amount due or to become due plaintiff from defendant for rent and the right of the plaintiff to distrain therefor.</p> <p>2. Landlord and Tenant—Statute Giving Lien for Rent Before Maturity is to be Strictly Construed,.—The right of a landlord to dis-train for rent before maturity is one conferred by statute only, and is to be strictly construed.</p> <p>3. Statutes—Section 34. Chapter 80, R. S., Construed.—The sale contemplated by Section 34, Chapter 80, R. S., is an absolute sale, one that carries with it the immediate right of possession and removal from the demised premises, and one in which such right of removal is, or is about to be, effectuated.</p>

<p>Action for a Penalty.—Appeal from the Circuit Court of DeWitt County; the Hon. William G. Cochran, Judge presiding. Heard in this court at the May term, 1903.</p>

Trespass on the Case, for alienation of wife’s affections. Appeal from the Circuit Court of DeKalb County; the Hon. Henry B. Willis, Judge presiding. Heard in this court at the April term, 1903.

<p>Bill for an Injunction.—Error to the City Court of Aurora; the Hon. Russell P. Goodwin, Judge presiding. Heard in this court at the April term, 1903.</p>

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

<p>1. Practice—What Must he Shown Where Lack of Jurisdiction is Asserted.—One who asserts lack of jurisdiction for failure to file a particular paper must show that such paper was not filed.</p> <p>2. Bill of Exceptions—Where it Does Not Contain a Plat Offered in Evidence.—Where a plat offered in evidence is not preserved in the bill of exceptions the Appellate Court may not consider it.</p> <p>3. Evidence—Province of the Jury Where it is Conflicting.—Where the evidence is conflicting it is the special-province of the jury to decide where the truth lies.</p> <p>4. Same—Diagram of Road Made from, Actual Measurements, Admissible.—In an action for obstructing a highway, a diagram made from actual measurements by a surveyor, indicating post holes of the original fence, is admissible.</p>

<p>1. Instructions—Assuming a Certain Line of Conduct to he Necessary in the Exercise of Ordinary Care.—An instruction which assumes that the plaintiff in the exercise of ordinary care should act in a certain manner, is erroneous. It is for the jury to say whether, under all the circumstances, the party was in the exercise of ordinary care.</p>

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

<p>Assumpsit.—Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge presiding. Heard in this court at the April term, 1903.</p>

Trespass, for assault and battery. Appeal from the Circuit Court of Marshall County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the April term, 1903.

<p>1. Revenue Law—Compensation of Supervisor of Assessments Must be Fixed by County Board.—If the act of 1898 created a new office of supervisor of assessments, entitling the person discharging the duties thereof to compensation for his services, the fixing of the amount of compensation by the county board is a condition precedent to the right to bring a suit to recover therefor.</p> <p>2. County Officers— Salaries Not to be Increased or Diminished During Term of Office.—Article 10 of section 10 of the constitution provides that the salaries of county officers shall not be increased or diminished during the term of the incumbent.</p>

<p>1. Roads and Bridges—Act of 1879 Repealed by Sections 79 and 124 of Act of 1883.—The act of 1879 in regard to roads and bridges was repealed by sections 79 and 124 of the act of 1883.</p> <p>2. Sane—Sections 13 and 14 of the Act of 1.883 Apply Solely to Towns Under the Cash System.—Sections 13 and 14 of the act of 1883 apply solely to towns which are under the cash system and not to towns which are under the labor system.</p> <p>3. Same—Section 119 of the Act of 1883 Applies Only to Towns Under the Labor System.—Section 119 of the act of 1883 governs and applies only to towns under the labor system, and has no application to towns under the cash system.</p> <p>4. Same—Section 16, Chap. 121, R. S., Applies Only to Towns Under the Cash System.—Section 16 of the road and bridge act applies only to towns under the cash system and nothing expressed therein gives a village within the district one-half of the tax collected in the town, where such town is acting under the labor system.</p> <p>5. Same—Sections 83 and 117, Ch. 121, R. S., Give a Village No Title to a Road and Bridge Tax.—The provisions of sections 83 and 117 of the road and bridge act are confined to the. tax “for road purposes only ” and give a village within such town no title to a tax for roads and bridges.</p> <p>6. Same—Act of 1883 Established Two Distinct Systems.—The act of 1883 established two distinct systems, and gave each town an option under which plan it would act.</p> <p>7. Same—Provision Limited to One System May Not be Extended to the Other by Implication.—A provision expressly limited to one system of levying and enforcing a tax under the road and bridge act of 1883 may not by implication be extended to the other system.</p> <p>8. Same—Procedure for Levying and Enforcing Tax Under the Two Systems—The procedure for levying and enforcing the tax .under the road and bridge act in a town under the cash system is precise and must be strictly followed; while the procedure established by sections 117 and 119 for levying and enforcing such a tax in labor towns must be followed, yet it is different from that fixed for cash towns, being less definite and precise in several respects.</p>

<p>Appeal from the Circuit Court of Stephenson County; the Hon. James S. Baume, Judge presiding. Heard in this court at the October term, 1903.</p>

<p>1. Roads and Bridges.—Town Under Labor System Has No Power to Proceed to Levy Tax Under Section 16 of the Road and Bridge Act. —In a town under the labor system, the highway commissioners and other officers can only proceed under section 119. of the road and bridge act to levy a tax. They have no authority to proceed under section 16 and a tax so levied is illegal.</p> <p>2. Taxes—Although Illegally Collected, Must be Paid to Officers Authorized to Receive Legal Tax.—Where a tax has been illegally collected, the moneys so collected must be paid to the authorities who would have been entitled to receive them if the officers attempting to authorize and levy the tax had followed the directions of the statute.</p>

<p>1. Malicious Prosecution—Insufficient Allegations in Declaration.—In an action for malicious prosecution, a declaration which does not aver that the defendants solicited the warrant from the magistrate, nor set out any complaint, either written or oral, made by them, or either of them, and does not even charge that any warrant was issued by the magistrate, except inferentially, nor allege neither malice nor want of probable cause, is insufficient to sustain a charge of malicious prosecution.</p> <p>2. False Imprisonment—Declaration Insufficient to State a Good Cause of Action.—A count in a declaration can not be held good as stating a case of false imprisonment, where it does not charge that the warrant was not a valid one, or that the defendant was illegally arrested or restrained of his liberty.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge presiding. Heard in this court at the April term, 1903.

<p>1. Pleading—Where Formal Issues Are Waived.— Where no replications are filed to special pleas, a jury is waived, and the cause is submitted upon the pleadings and proofs, formal issues are thereby waived.</p> <p>2. Appellate Court Practice—Points Not Argued Are Waived.—Where the rulings of the trial court upon a matter are not argued, and no reasons or authorities are presented against those rulings of the court, the questions presented by those rulings will be considered as waived.</p> <p>3. By-Laws—Ordinarily Operate Prospectively Only.—Ordinarily by-laws operate prospectively only, and it will be presumed that they are not intended to affect contracts already entered into.</p> <p>4. Same—Shall Operate Retrospectively Only When Such Intention is Clear.— By-laws shall be so construed as to give them a prospective operation only, and they shall be permitted to operate retrospectively only where the intention to have them so operate is clear and undoubted.</p> <p>5. Same—Presumed that Amendments to, Were Not Intended to Affect Prior Contracts.— It will be presumed that an amendment to the by-laws of a mutual benefit society was not intended to affect a contract of insurance previously issued by the society.</p> <p>! •> 6. Same—Members of Mutual Benefit Societies May Contract to be Bound by Future By-laws. —Members of mutual benefit societies may agree to be bound by any future by-laws or amendments which may be passed by the society, as if they were existing at the date of the contract. They may consent that new by-laws or amendments shall enter into and form parts of their contracts, modifying or varying them. But the fact that such a member has consented to be bound by future by-laws or amendments does not alter the rule that they will be given a prospective operation, in the absence of a clear intent that they shall act retrospectively.</p> <p>7. Same—Must be Reasonable to be Binding.—The rule that if the laws of an order make its benefit certificates subject to such laws as may thereafter be enacted its certificates are then governed by subsequent laws and amendments, is subject-to the qualification that the later amendment or by-laws be reasonable, and in harmony with the general policy of the order.</p> <p>8. Same—Must Give a Reasonable Time in Which to Abandon a Prohibited Occupation.—If it be conceded that mutual benefit societies have a right to purge themselves of members engaged in the liquor business, such members who entered the business when the by-laws permitted them to do so, must be given a reasonable time in which to abandon the prohibited occupation and withdraw their investments therefrom.</p> <p>9. Statute—Retrospective Laws to be’Rigidly Construed.—Retrospective laws are regarded as impolitic and unwise, and they may often be said to be unjust and oppressive. Although they may in a given case be valid, they will always be subject to such a construction as will circumscribe their operation within the narrowest possible limits, consistent with the manifest intention of the society as indicated by the language used. When it can be avoided they will not be permitted to destroy the validity of a certificate and to deprive a person of all rights under it.</p> <p>10. Waiver—Knowledge of Facts Necessary to Establish.—Where a mutual benefit society receives dues and assessments from a member engaged in a prohibited occupation without notice that he is so occupied, such act does not establish a waiver by the society of the effect of the by-law prohibiting such occupation.</p>

<p>Bill for a Divorce.—Appeal from the Circuit Court of LaSalle County; the Hon. Charles Blanchard, Judge presiding. Heard in this court at the October term, 1902.</p>

Trespass on the Case, for injuries caused by the bite of a dog. Appeal from the Circuit Court of Peoria County; the Hon. Theodore N. Green, Judge presiding. Heard in this court at the October term, 1902.

<p>1. Evidence—Of Financial Circumstances, When Competent.—On a suit brought to recover an alleged loan, where the testimony of the parties is conflicting, evidence that the financial circumstances of the defendant were such that he did not need the money at the time is competent.</p> <p>3. Instructions—That Plaintiff’s Proof Must Excel Defendant’s is Misleading.—An instruction that plaintiff’s proof must “ excel ” that of his adversary is misleading, as the jury might understand from it that plaintiff’s proof must surpass defendant’s in other qualities besides that of mere weight or preponderance.</p>

<p>1. Principal and Agent—Position of Broker Placing a Loan.—Ortmeier applied to Rowley for a loan. Rowley prepared the note and mortgage, which were executed by Ortmeier and his wife and the sum of $1,200 paid over, Ortmeier paying Rowley for his services. Rowley then took the note and mortgage to Ivory, who had previously asked him to place $1,200, and Ivory paid Rowley $1,200 and received the note and mortgage, which were never afterward in Rowley’s hands. Ortmeier, by Rowley’s directions, paid his interest and principal to Rowley. Afterward at different times Ortmeier remitted to Rowley funds sufficient to pay off the entire principal and interest, but Rowley failed to pay any of the principal to Ivory. Ortmeier never called for the note or mortgage when he made payments, nor did he ever inquire for Ivory, his creditor. Held, that Rowley was not Ivory’s agent to collect any part of the money, and that there was nothing to justify Ortmeier in believing that Ivory had authorized Rowley to receive payments.</p> <p>2. Same—Authority to Make Loan Does Not Establish Authority to Collect It.—Authority to make a loan does not establish authority to collect it.</p> <p>3. .Same—When Authority to Receive Payment May be Inferred.— Where the agent has possession of the note after it is due, authority to receive payment may be inferred, but in such case the debtor who makes payment to the agent in reliance upon an inference that he has authority to receive it must show that the note was in the agent's possession when the payment was made.</p> <p>4. Maxims—De Minimis Non Curat Lex.—The court generally will not reverse a decree when the value of the amount in dispute is too small to merit a second examination.</p>

Action for Damages, caused by overflow of land. 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. Replevin—Sufficient Possession to Sustain.—Plaintiff bought live stock and other personal property of a tenant on his farm who was about to vacate his tenancy, left them on the farm, going there frequently to attend them, and later hired a person for that purpose. Held, that there was a change of possession sufficient to sustain an action of replevin on the part of the purchaser, for the stock, when execution upon a judgment against the vendor was levied upon it.</p> <p>2. Evidence—Note, Mortgage and Cheek in Payment, Admissible to Show a Parchase Not Colorable.—Where a party assumes and pays a chattel mortgage in payment of a purchase, but takes an assignment of the note to himself instead of having the mortgage released, the note, mortgage, and the check with which he paid the holder thereof, are admissible in evidence to show that the purchase was not colorable, where such assignment and giving of check were a payment of the debt and operated to discharge the mortgage.</p> <p>3. Fraud—Must Be Proved.—Fraud can not be presumed, but must be proved by a preponderance of the evidence.</p>

<p>1. Bills and Notes—When Indorsee May Proceed Against Indorser Before Suing Mahers—Under section 7, Ch. 98, R. S., an indorsee may recover against an indorser without demanding payment of the makers or protesting the note, by showing by a preponderance of the evidence that the institution of a suit against the makers would have been unavailing.</p> <p>2. Same—Indorsee Need Not Go into Court of Equity in Order to Hold Indorser.—An indorsee may not be required to go into a court of equity to remove a cloud out of the way of an execution against the maker in order to entitle him to hold the indorsers.</p> <p>3. Same—Whether Indorsee Might Have Satisfied Debt by Execution Against the Maker a Question of Fact.—It is a question of fact whether an indorsee of a note might have obtained satisfaction of the debt by execution against the maker before proceeding against the indorsers.</p> <p>4. Lien—Judgment of a Court of Record is, -upon Real Estate Within County Belonging to the Person.—A judgment of a court of record is a lien upon the lands, tenements, hereditaments, and all legal and equitable rights and interests therein and thereto belonging to the person against whom it is obtained, situated within the county for which the court is held.</p> <p>5. Same—Of Judgment upon Equitable Estate—Instrument Under Which it Arises Need Not be Recorded.—The lien of a judgment upon an equitable interest in land is not affected by the fact that the instrument under which it arises is not recorded.</p> <p>6. Presumptions— Where Indorsee Waits Over Seven Years Before Suing Indorser.—Where an indorsee waits over seven years before suing the indorser, there are no presumptions that because the times were hard and the property more or less old, nothing could have been collected from a maker all the time actively engaged in a business requiring considerable usable and salable personal property.</p> <p>7. Mortgages—When a Deed Amounts to.—A deed absolute in form given by one party to others, together with a contract between the same parties providing that upon the payment of a sum of money the premises shall be re-conveyed, amounts to a mortgage of the premises.</p> <p>a. Same—Right to Enforce Security Presumably Passes to Assignee of Debt.—Presumably, the right to enforce the mortgage security passes to the assignee of a mortgage debt.</p> <p>9. Same—Provision for Forfeiture in Defeasance Does Not Cutoff Right of Redemption.—A provision for a forfeiture in a contract to reconvey, which is in fact a defeasance in a transaction amounting only to a mortgage, does not deprive the instruments of their mortgage character, nor cut off the right of redemption.</p> <p>10. Title—Possession of Real Property is Notice of Possessor's Title.—Open and exclusive possession of real property by a person is notice of his title.</p> <p>11. Same—Possession of Tenant Who Has Agreed to Purchase is Notice of His Title.—Where a tenant changes his character by agreeing to purchase, his possession is notice of his equitable title.</p> <p>12. Due Diligence—Defined.—Due diligence means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.</p>

<p>1. Infants—Position of Child Less than Three Tears of Age.—Before the law a child of less than three years of age can not of its own volition acquire the status of being either a trespasser, a visitor, or a licensee, nor has the mother, or father, or any other custodian of the child, power to fix its status before the law, when the rights of the child itself are concerned.</p> <p>2. Imputed Negligence—Doctrine Repudiated in This State.—The doctrine of imputed negligence has been repudiated in this State.</p> <p>3. Actions—For Death from Negligent Act Grounded upon Deceased Person's Own Rights.—The action given by Chapter 70, Section 1, R. S., is grounded upon the deceased's own rights.</p> <p>4. Same—Brought for Benefit of Father and Mother—Negligence of Mother Alone Does Not Preclude Bather's Recovery.—Where the statute gives the benefit of an action to the father and mother of a deceased child, the right of the father to recover is not affected by the negligence of his wife, to which he is not a party. The wife’s negligence in the case can only be considered in determining the amount of the damages.</p> <p>5. Same—Where an Injury Proceeds from Two Causes Operating Together.—Where an injury proceeds from two causes operating together the party putting in motion one of them is liable the same as though ,it were the sole cause.</p> <p>O. Attractive Nuisances—Recognized by the Law of This State.—The law of this state recognizes the “ attractive nuisance ” doctrine, so far as children are concerned, whether they are of sufficient age to have some degree of discretion or not, and the consequent duty of a party to guard such structures or agencies that no harm shall come to those who are physically and mentally incapable of taking care of themselves.</p> <p>7, Same—Whether Premises Are, is a Question of Fact.—Whether or not the premises are sufficiently attractive to entice children into danger and to suggest to the defendant the probability of the accident are matters to be determined by the jury.</p> <p>8. Instructions—Party May Not Complain of His Own.—A party may not complain of an instruction given at his instance.</p> <p>9. Landlord and Tenant—Where New Letting Commences at Beginning of Each Month.—Where a tenant in possession of premises is a tenant from month to month, there is in contemplation of law a new letting at the beginning of every month, even though the origin of the tenancy commenced months back.</p> <p>10. Same—Landlord Letting premises with a Dangerous Place in Them is Liable.—When the landlord lets the premises to a tenant with a dangerous place in them, he remains liable.</p> <p>11. Parent and Child—Father Natural Guardian of Child.—The father is the natural guardian of his child: the mother, as such, is entitled to no disposing power over the person of the child.</p> <p>12. Husband and Wife—Marital Relation Itself No Proof of Agency.—The marital relation in and of itself is no proof of agency or legal identity between husband and wife.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>1. Master and Servant—When an Order to Continue Work with a Defective Machine is Not a Waiver of Servant’s Assumption of Risk.—Where an order to continue work, with a promise to sharpen a punch, is made by the master without notice or knowledge that the work had become extra hazardous on account of the punch being dull, and its being dull does not reasonably suggest to a reasonably competent master that on this account the work has become extra hazardous, an order to go back to work is not a waiver of an assumption by plaintiff of any risk on account of the punch being dull.</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 February term, 1903.

<p>Trespass on the Case.—Death from negligent act. Appeal from the City Court of East St. Louis; the Hon. Paul McWilliams, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>1. Statutes—Section 1, Chapter 59, R. S., Construed.—Section 1, Chapter 59, R. S., does not make a verbal contract, which is nob to be performed within one year from its date, absolutely void, nor does it prohibit the making of such contracts: but it simply provides what character of evidence shall be sufficient to establish such a contract when a suit is brought to enforce it.</p> <p>2. Contracts—Not Enforceable Under the Statute of Frauds, Admissible in Evidence, When.—A contract which is not enforceable under the statute of frauds may be admitted in evidence where the suit is not on such contract.</p> <p>3. Pleadings—Practice Where There Are No Written Pleadings.— Where there are no written pleadings in the case, the rules of law governing the substantial oral pleadings are the same as if the pleadings had been in writing.</p> <p>4. Same—Burden of Proof Under a Plea of Confession and Avoidance.—Where issue is taken on a plea of confession and avoidance, the burden of proving the defense set up in the plea rests with the pleader.</p> <p>5. Instructions —Should Be Accurate Where the Case is a Close One.—Where the case is a close one it is important that the jury should be accurately instructed on the law applicable to it.</p>

<p>Assumpsit, on a benefit certificate. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge presiding. Heard in this court at the February term, 1903.</p>

Trespass on the Case, for damages caused by the explosion of dynamite. Appeal from the Circuit Court of St. Clair County: the Hon. Silas Cook, Judge presiding. Heard in this court at the February term, 1903.

<p>1. Public Officers—Can Not be Held Liable for Error of Judgment When Acting in Good Faith.—A public officer, when acting in good faith, can not be held liable for an erroneous judgment in a matter submitted to his determination.</p> <p>S. Highways— Whether a Load is a Public Highway to be Determined by the Commissioners.—Whether a road is oris not a public highway is a question to be determined by the commissioners according to their best judgment, under the cirumstances of this case.</p>

<p>Debt, on two judgments. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>Trial of the Right of Properly.—Appeal from the Circuit Court of St. Clair County; the Hon. Silas Cook, Judge presiding. Heard in this court at the February term, 1903.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Marion County; the Hon. William M. Farmer, Judge presiding. Heard in this court at the February term, 1903.

<p>1. Specific Performance—Of an Agreement to Transfer Stock, When Not to be Decreed.—A specific performance of an agreement to transfer stock in a corporation will not be decreed where the complainant’s only claim is that he should be reimbursed for money expended for such stock.</p>

<p>Debt, on a bond. Appeal from the Circuit Court of Effingham County; the Hon. William M. Farmer, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>Trespass on the Case.—Death from negligent act. Error to the Circuit Court of Wabash County; the Hon. Prince A. Pearce, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>1. Appeals—Nature of Order to Receiver to Borrow Money to Prosecute Legal Proceedings.—While an order of court allowing a receiver to borrow money and issue receiver’s certificates therefor, for the purpose of raising a fund with which to employ counsel and defray the expenses of commencing and prosecuting suits authorized by an order of court, is in a sense an interlocutory order, still it is something more in its scope than a mere interlocutory order, and an appeal from it will lie, though not perfected in the Appellate Court within sixty days, as is provided by statute in case of appeal from an interlocutory order.</p> <p>2. Same—From Deorees Against a Party Working a Deprivation of His Property.—An appeal will lie, independent of the act of 1887, from any decree against a person that will work a deprivation of his property.</p>

<p>1. Bill of Exceptions—Must be Signed and Sealed to be a Part of the Record.—A bill of exceptions in order to be a part of the record must be signed and sealed by the trial judge.</p> <p>2. Appellate Court Practice—Assignments of Error Not Argued Are Waived.—Assignments of error not discussed in argument are held to be waived and abandoned.</p> <p>3. Verdict— Where Trial Court is Warranted in Setting it Aside.—Only in cases where the verdict is so manifestly against the weight and preponderance of the evidence as to justify the inference that it is the result of passion, prejudice or mistake, will the trial court be warranted in setting it aside.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaffer, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>1. Instructions—Not Based upon Evidence in Case, Erroneous.— An instruction permitting plaintiff to recover on a quantum meruit under the common counts, where there is no proof whatever of the value of the services rendered by plaintiff, if any, to defendant, is not based upon any evidence in the case and is erroneous.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the February term, 1903.

Trespass on the Case, for being ejected from a train. Error to the Circuit Court of Effingham County; the Hon. William M. Farmer, Judge presiding. Heard in this court at the February term, 1903.

Trespass on the Case.—Death from negligent act. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge presiding. Heard in this court at the February term, 1903.

Trespass on the Case.—Damages from overflow of water. Appeal from the Circuit Court of White County; the Hon. Prince A. Pearce, Judge presiding. Heard in this court at the February term, 1903.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Hamilton County; the Hon. Edmund D. Youngblood, Judge presiding. Heard in this court at the February term, 1903.

<p>1. Written Instruments—Evidence Admissible to Show that One Never Took Effect.—While parol evidence is not admissible to vary the terms of a written instrument, yet such evidence is always admissible to show that by reason of the circumstances under which the instrument was executed, it did not take effect.</p> <p>2. Same—When Obtained by Fraud, Can Not be Availed of by Perpetrator.—If the execution of an instrument is procured by fraud, the instrument has no legal effect, when sought to be availed of by the perpetrator of the fraud.</p> <p>3. Actions—For Money Had and Received—Jurisdiction of Justice of the Peace.—Justices of the peace have jurisdiction in suits for money had and received where the sum involved does not exceed two hundred dollars.</p>

Trespass on the Case.—Death from negligent act. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge presiding. Heard in this court at the February term, 1903.

Action for Damages, resulting from a runaway team. Appeal from the Circuit Court of Crawford County; the Hon. Edmund D. Youngblood, Judge presiding. Heard in this court at the February term, 1903.

<p>1. Equity—Has a Natural and Primary Jurisdiction Over Trusts.—The rule which limits the jurisdiction of courts of equity to oases where there is no adequate remedy at law, does not, speaking generally, apply to the case oí a trust, as there equity has a natural and primary jurisdiction, superadded to any legal rights that the suitor may have, and concurrent with them.</p> <p>2. Trustees—Cestui Que Trust May Proceed Against, Either at Laxo or in Equity.—Where money is sought to be recovered from one as trustee, the fact that the cestui que trust has a remedy at law by action for money had and received, will not deprive a court of chanceiy of jurisdiction.</p>

<p>1. Appellate Court Practice— Where Record Does Not Show a Judgment on Findings of Court Below. —Where the record shows a finding of the issues in favor of the defendant and against the plaintiff below, but nowhere shows that any judgment was entered upon the finding, there is nothing for this court to act upon and the appeal must be dismissed.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Randolph County; the Hon. William Hartzell, Judge presiding. Heard in this court at the February term, 1903.</p>

Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the February term, 1903.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the February term, 1903.

<p>Assumpsit.—Appeal from the Circuit Court of Hamilton County; the Hon. Edmund D. Youngblood, Judge presiding. Heard in this court at the February term, 1903.</p>

Trespass on the Case, for personal injuries. Appeal from the City Court of Alton; the Hon. Alexander W. Hope, Judge presiding. Heard in this court at the February term, 1903.

Debt, to recover a penalty for practicing medicine without a license. Appeal from the County Court of Marion County; the Hon. Charles H. Holt, Judge presiding. Heard in this court at the February term, 1903.

Trespass on the Case, for assault and battery. Appeal from the City Court of Alton; the Hon. Alexander W. Hope, Judge presiding. Heard in this court at the February term, 1903.

<p>1. Evidence—Prima Faeie Evidence of Passage and Publication of Ordinances.—An ordinance is admissible as evidence under section 82, chapter 24, R. S., when it is recorded in a book kept for such purpose, and where, at the close of the record of such ordinance, there is a memorandum of the date of the passage and publication or posting of such ordinance.</p> <p>2. Cities and Villages—Power of City to Light Streets Includes Power to Acquire a Plant for that Purpose.—Section 62, chapter 24, R. S., provides that cities and villages shall have power to provide for the lighting of streets, alleys, avenues, sidewalks, wharfs, parks and public grounds, and the power of a city to light its streets includes the power to acquire by purchase or building, a plant for such purpose.</p> <p>3. Same—Fact that City Puts Lighting Plant to Unlawful Use Does Not Invalidate Bonds Issued for its Erection.—The fact that a city, after its municipal lighting plant is in operation, puts it in whole or in part to an unlawful use, can not relieve the city from paying the bonds issued for its erection.</p> <p>4. Ordinances—Courts Will Give Them an Interpretation Which Will Validate Rather than Overthrow Them.—Where an ordinance is clearly suspectible of an interpretation in full accord with the law, though it might be suspectible of another or broader interpretation, courts will give it that which will validate rather than that which will overthrow it, and all innocent parties acting- under or with reference to such ordinance are warranted in so interpreting it.</p> <p>5. Municipal Indebtedness—Outstanding Warrants Do Not Constitute, Within Meaning of the Constitution.—Outstanding warrants or orders issued or drawn by a municipality against cash in the treasury, or specifically payable out of a fund to arise from a tax which has been actually levied, do not constitute an indebtedness within the meaning of the constitutional inhibition.</p> <p>6. Same—Accruing Interest Not a Part of Indebtedness Within Meaning of Constitutional Provision for Limit of Indebtedness.— Accruing interest upon municipal indebtedness is a mere incident of the principal, and not to be reckoned as part of the indebtedness within the meaning of the constitutional inhibition.</p>

<p>1. Corporations—Knowledge Amounting to a Ratification of an Unauthorized Contract.—A corporation shall be held to have ratified its attorney’s contract where such corporation had knowledge of it through its attorney, architect, directors and officers, and where it has enjoyed the benefits thereof.</p> <p>2. Damages—Not Error to Allow Witness to Testify to a Lump Sum As.—It is not error to allow a witness to testify to a lump sum as damages. If the opposite party desires to go into the details of the damages, he may do so on cross-examination of the witness.</p>

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

<p>1. Debtor and Creditor—Remedies of Creditor by Note and Mortgage.—A creditor by note and mortgage has several remedies, either or all of which he may pursue until his debt is satisfied. He may proceed personally against the debtor upon the note, or, after condition broken, he may obtain possession by ejectment, or he may file a bill for foreclosure and sale, or, the mortgage being recorded, he may proceed by scire facias upon the record. These remedies are successive or concurrent at the election of the creditor.</p> <p>3. Practice—Effect of an Appeal upon Decree Appealed from.— An appeal does not vacate or set aside a decree. A supersedeas has no further or other effect upon the decree than to suspend its execution, and -where the decree is self-executing it requires no execution to enforce its terms, but fixes and determines the rights of the parties thereto, without process of any kind thereon, until it shall be annulled, reversed or set aside.</p> <p>8. Same—Court Acquiring Jurisdiction is Not Divested by Any Errors.—When a court has acquired jurisdiction it is not divested by any errors, however grave, and its decree is conclusive and binding in all collateral proceedings. This is true on a trial in equity as well as at law.</p> <p>4. Res Adjudicata— Operates as an Estoppel Against Subsequent Litigation.—A proper adjudication of the same subject-matter between the same parties operates as an estoppel upon them against subsequent litigation as to all matters thafwere actually in controversy and decided.</p> <p>5. Ejectment—A Court of Equity Will Enjoin Until Amount Due is Ascertained.—When the amount due on trust deeds is unliquidated, an accounting is necessary to determine such amount, and as a court of equity offers the better and more adequate forum in which to try that issue, upon proper application, a court of equity will enjoin an ejectment until the amount due is ascertained.</p>

<p>Bill for the Dissolution of a Corporation .—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>Assumpsit, on an accident policy of insurance. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Negligence—A Question for the Jury.—The question of the negligence of a street car conductor in ordering a boy to get off a moving car is a matter peculiarly for the consideration of the jury.</p> <p>3. Same—Enough to Justify a Verdict if Negligence of Person Charged is an Efficient Cause Without Which Injury Would Not Have Occurred.—Where an injury is the result of the concurrent negligence of two parties, it is enough to justify a verdict for the plaintiff that the negligence of the party charged was an efficient cause, without which the injury would not have occurred.</p> <p>3. Same—Ordinary Negligence May he Shown under an Allegation of Willful Negligence.—The charge of willful, wanton and reckless negligence includes ordinary negligence, which can be properly shown under the pleading.</p> <p>4. Proximate Cause.—A Question for the Jury.—Where the negligence of two parties has contributed to an injury it is a question for the jury to say whether it was the negligence of one or of the other that was the proximate cause of the injury.</p> <p>5. Practice—When Plaintiff May Prove a Part of His Charge in Torts.—In torts, the plaintiff may prove a part of his charge if the averment is divisible and there be enough proved to support his case.</p>

<p>Transcript from a Justice of the Peace.—Appeal from the County Court of Cook County; the Hon. Richard S. Farrand, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Interpleader—Requisites of a Bill of.—In order that a bill maybe good as a bill of interpleader, first, the same thing, debt or duty-must be claimed by both or all the parties against whom the relief is demanded; second, all their adverse titles or claims must be dependent on or be derived from a common source; third, the person seeking the relief—the plaintiff—must not have or claim any interest in the subject-matter; fourth, he must have incurred no independent liability to either of the claimants—that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder.</p> <p>2. Same—Hoto a Bill in the Nature of a Bill of Interpleader Differs from a Bill of Interpleader.—A bill in the nature of a bill of interpleader differs from a bill of interpleader in that the complainant by it seeks not only to have the conflicting claims of the defendants against himself which he desires to discharge to the proper parties, adjudicated, but also some affirmative relief.</p> <p>3. Same—Reasons for the Remedy.—The reason for the remedy afforded by a bill of interpleader is the risk of vexation and expense from two or more suits by different parties for the recovery of the same thing.</p>

Assumpsit, for goods stored with warehousemen. Appeal from the Circuit Court of Cook County; the Hon. Russell P. Goodwin, Judge presiding. Heard in this court at the October term, 1902.

<p>1. Verdicts—When Not to be Disturbed.—A verdict upon conflicting evidence will not be disturbed unless it is clear that the jury were moved by passion or by prejudice.</p> <p>2. Damages—When an Appellate Court Will Not Disturb the Amount of Damages Rendered.—An appellate court will not substitute their judgment as to the amount of damages in case of tort for that of the jury and of the trial judge, unless, the whole record being considered, the amount allowed is so excessive as to show prejudice or partiality.</p> <p>3. Witnesses—Non-experts May Testify as to Speed of Car.—It is not error to allow non-expert witnesses to testify as to the speed of a car.</p> <p>4. Hypothetical Questions—Scope Allowed to Counsel in Framing.—It is the right of counsel to assume within the limits of the evidence any state of facts which he claims the evidence justifies, and have the opinions of experts upon the facts thus assumed. The facts are assumed for the purpose of the question, and for no other purpose. If the facts stated in the hypothetical case are not proved the opinion goes for nothing. Counsel may embrace in hypothetical questions such facts as he may deem established by the evidence, and if the other side does not think all the relevant facts are included in such question, it may include them in questions propounded in cross-examination.</p> <p>5. Instructions—Not Error to Refuse When Ground is Covered by Others Given.—When the propositions contained in an instruction requested are embraced in other instructions given, it is not error to refuse it.</p> <p>6. Same—Erroneous Where They Have no Application to the Facts of the Case.—An instruction which has no application to the facts of the case is properly refused.</p> <p>7. Appellate Court Practice—Case Should Not be Reversed for Harmless Errors.—When the court can see from the record that an error committed by the trial court in the progress of the case was a harmless one, or that its injurious effect or harmful character was obviated so as not to affect injuriously, in the final judgment, the rights of the parties against whom the error was committed, it should not be allowed to work a reversal,</p>

<p>Trespass on tie Case, for personal injuries.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Bill to Set Aside a Conveyance.—Error to 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>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Robert B. Shirley, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Fixtures—When Planking of a Dock Are Not.—Plaintiff leased a dock for one year. It was not planked and he immediately planked the entire dock by laying stringers upon the ground and nailing planks to these stringers. When necessary, earth was filled under and alongside of these stringers and in course of time many of the stringers became imbedded in the earth, but (he stringers were not in any other way attached to the dock. The cost was nearly $2,000. The plank could at any time be removed without injury to the realty. Held, that the planking did not become a part of the realty nor even a trade fixture, but remained personal property.</p>

<p>Transcript from Justice of the Peace.—Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Transcript from Justice of the Peace.—Appeal from the Circuit Court of Cook County; the Hon. Russell P. Goodwin, Judge presiding. Heard in this court at the October term, 1902.</p>