Volume 112 — Illinois Appellate Court Reports

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Action for personal injuries. 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>Action for personal injuries. Appeal from the Superior Court of ' Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Mechanic’s lien—contract essential to support a. A mechanic’s lien cannot be predicated upon a contract which does not fix the time for'the performance of the work or for the payment thereof.</p> <p>2. Blanks—hozo authority to fill, must be availed of. Where there is no authority to fill blanks in a written contract after it has been executed and delivered it must not be done surreptitiously and when done, it should be done in the original and such original produced.</p> <p>3. Blanks—presumption as to what intended to be placed in. Where the time for the completion of the work provided for in a written contract is left blank, the court cannot say that the parties intended to fill the blanks, or if they did intend to fill thém, what insertion was intended to be made.</p> <p>4. Alterations in transcript—power of chancellor to investigate. The chancellor, after the master has reported, and at the hearing, has power to investigate whether unauthorized alterations have been made in the transcript filed by the master.</p>

<p>1. Performance—when parties to a contract are excused from. Where a contract containing mutual covenants is sought to be entered into by several parties, one of whom has not authorized the execution of such contract in her behalf, and who, after its execution in her behalf, refuses to ratify or perform it, all parties thereto are excused from performance.</p>

<p>1. Attorney’s fees—how value of, determined. Where the only-question is, as to the amount due for attorney’s fees, the proper question to be put to an expert witness is, what is the usual and customary charge for such services as were rendered; but if there is no usual and customary charge for such services, it is proper to ask what such services are reasonably worth.</p> <p>3. Attorney’s fees—hozo objection to proof of value of, should be made. A general objection to a question inquiring as to the fair and reasonable value of attorney’s services is not sufficient to raise the question that the inquiry should be directed to what is the usual and customary charge for such services.</p>

Bill to enjoin infringement of corporate name. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom. Judge, presiding. Heard in this court at the March term, 1903.

Action 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 March term, 1903.

<p>1. Application fob insurance—effect of false statements in. The statements and representations contained in an application for insurance are warranties, and if untrue, will defeat recovery upon a contract of insurance based thereon.</p> <p>2. Rulings of court—scrutiny subjected to. Where the conflict in the evidence is serious, the trial court should exercise exceeding care in the admission or exclusion of evidence, and his rulings thereon will on appeal be subjected to a close scrutiny.</p> <p>3. Certificate of death—when, competent. A death certificate which purports to show of what disease a particular person died, is competent as tending to prove the death of such person from such cause, where it is produced from among public records kept pursuant to statute.</p> <p>4. Certified copy—when competent. Public records may be proven by duly certified copies thereof.</p> <p>5. Instruction—when, improperly appeals to sympathy. An instruction which tells the jury that they should decide the case “ in the same manner as if the widow was plaintiff in this case, and not the brother,” is improper as making an appeal t'or sympathy.</p>

Action for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1903.

Action of assumpsit upon benefit certificate. Appeal from the Circuit. Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1903.

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1903.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1903.

<p>Proceeding for contempt. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the March term, 1903.</p>

<p>1. Contributory negligence—when, cannot be imputed to cvminor. A child of the age of six years and ten months cannot be charged with contributory negligence.</p> <p>2. Reopen case—fight to review refusal of court to. The refusal of the court to reopen a case after the evidence upon both sides has been closed and to permit the introduction of further testimony, is not subject to review upon appeal.</p> <p>3. Instruction—when, improper. An instruction which tells the jury that if they believe certain facts then the law raises a presumption of negligence (standing alone), is misleading in not stating that such presumption was not absolute but might be rebutted.</p> <p>4. Instructions— how to be read. Instructions are to be read as one entire charge, and the omissions of one instruction may be supplied by the contents of another.</p> <p>5. Instruction—particular modifications of, held not improper. The modifications of several instructions set forth and referred to in the case consisted of the insertion in one of the word “ sole” and in the other of the words “of itself alone”; held, not improper.</p> <p>6. Excessive speed —presumption of negligence which arises from. The presumption of negligence which arises from the fact that at the time of an accident the defendant’s train was running at an unlawful and excessive rate of speed, is merely prima facie and subject to be rebutted.</p>

Action on the case for deceit. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1908.

<p>1. Scire facias—procedure ivhere defendant is sought to be added to a judgment by. Where a party to a cause is brought into court by means of a scire facias under Section 9 of the Practice Act, the trial as to him should be conducted as if no judgment had been rendered against his co-defendant, and such defendant has a right to make every defense which he might have made had he been served with summons and a hearing had as to him at the same time that the cause was heard as to his co-defendant.</p> <p>2. Scire facias—pleadings where defendant is sought to be added to a judgment by. The pleadings in such a case should be directed to the declaration and not to the writ.</p> <p>3. ■ Joint liability—where burden of proof rests. The burden of proving joint liability rests upon the plaintiff, where the defendant has pleaded by verified plea non-joint liability.</p>

<p>1. Parol evidence-—incompetency of, to affect written instrument. It is a familiar rule of the common law that a written instrument contains the final agreement of the parties and that all prior propositions, discussions and differences are merged therein, and therefore parol evidence will not be received to falsify, vary or add to it.</p> <p>3. Fraud, accident or mistake—power of equity to relieve against. It is universally conceded that a court of equity has power to afford relief where a written instrument is impaired by fraud, accident or mistake, and this power is of equal importance with the rule of the common law which prevents the affecting of a written instrument by parol evidence, and which rule should yield and which be enforced, is to be determined:by the facts of each particular case.</p> <p>8. Fraud, accident or mistake—what essential to grant relief against. Relief will not be granted against a written instrument and a new and different contract imposed upon the parties unless the fraud, accident or mistake is established by evidence strong and convincing; a mere preponderance is not sufficient.</p> <p>4. Fraud, accident or mistake—what does not constitute. Where one, knowing the terms thereof, enters into a sealed obligation, trusting to the verbal promise of the other party thereto that he should not be held responsible to the full extent of the obligation thus assumed, he cannot thereafter urge such verbal promise in a court of law as a defense to any portion of such obligation, nor can he successfully interpose the same in a court of equity as constituting fraud, accident or mistake.</p>

<p>Proceeding to enjoin municipality from enforcing automobile license ordinance. Appeal from the Circuit Court of Cook County; the Hon. John L. Healy, Judge, presiding. Heard in this court at the March term, 1903.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clippord, Judge, presiding. Heard in this court at the March term, 1903.

<p>1. Action for damages--what essential to maintain. To maintain an action for damages it must appear that the defendant owed to the plaintiff some duty which he has violated or disregarded.</p> <p>3. Public official—when breach of trust by, does not confer right of action upon individual citizen. Where a contractor fraudulently neglects to construct the improvement provided for by an assessment which has been levied against the plaintiff, but fraudulently constructs another and different improvement, and where the public officials whose duty it is to direct and supervise the work of constructing such improvement fraudulently fail to perform their duty, and fraudulently accept the other and different improvement so constructed by such contractor, the plaintiff in such case has no individual remedy in an action on the case against such contractor and officials.</p>

Action on the case to recover damages for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1903.

<p>1. Trade fixtures—when riglit to, is lost. “ A tenant waives his right to remove trade fixtures where, at the expiration of the lease under which they were erected,' he takes a new lease which neither reserves his right to the fixtures nor recognizes his right to remove them under the former lease, but contains covenants that he will keep the premises in good repair and deliver them up in as good condition as when received.” (Portion of syllabus from Sanitary District v. Cook, 169 Ill. 184; quoted with approval in this case.)</p> <p>3. Trade fixtures—who may restrain removal of. One who has entered into a contract to purchase real property may restrain the occupant of such premises from the removal of trade fixtures which form a part of the freehold, and to which such occupant has no legal title.</p> <p>3. Waste —power of equity to restrain. “ The remedy by injunction is fully established, and has not only virtually superseded the old common law action of waste, but has to a great extent taken the place of an action on the case for damages. An injunction will be granted in all cases where a legal action would lie to recover possession of the land wasted or to recover damages.” (Quotation from Pomeroy’s Equity Jurisprudence, approved in this case.)</p>

<p>1. Resulting trust—what essential to establish. To overcome the presumption which arises from a written contract and to establish byparol an interest in the nature of a resulting trust, the evidence must be clear and satisfactory to the mind of the court, showing that at the moment the writing was executed the trust arose.</p> <p>2. Cestui que trust—interest of, defined. The interest of a cestui que trust is an equitable estate in the land or other thing of which the legal title is vested in the trustee.</p> <p>Beporters’ Note. In the preceding case the question was involved as to whether a certain contract was void as against public policy in that an official of a corporation was secretly given an interest in a transaction in which he was at the time representing the corporation in his official capacity. The court did not deem it necessary to decide the question, but in the opinion will be found valuable authorities upon the point.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>1. Proximity of tracks—when instruction concerning liability of company by reason of, is improperly modified. An instruction which tells the jury that if they believe from the evidence that the tracks and trains were so far apart “that the plaintiff could by using reasonable care and caution avoid being injured by said freight train, whilst said two trains were approaching and passing each other, then as a matter of law the plaintiff cannot recover in this action,” is improperly modified by inserting after the word “other” the words “and that he did not use reasonable care and caution to avoid injury.”</p> <p>2. Ownership of tracks—when instruction upon, is improperly refused. Where the question of the ownership of railroad tracks is á controverted and Vital issue in a case, it is error to refuse to instruct the jury that if they believe from the evidence “that the passenger train upon which plaintiff was riding at the time in question was upon a track which was not owned or controlled at said time by the defendant,- then, as a matter of law, the plaintiff cannot recover,” and it is, likewise, improper to-refuse to submit to the jury a special interrogatory upon the same subject.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>1. Common law record—what not part of. The affidavit and notice pursuant to which a case has been placed on the short cause calendar are not parts of the common law record, and to be the subject of review on appeal, must be preserved by bill of exceptions.</p> <p>2. Rulings op court—presumption in favor of correctness of. Nothing to the contrary appearing in the record presented on appeal, it will be presumed that the trial court ruled correctly in overruling an unsupported objection.</p> <p>3. Short cause calendar—when objection to manner in which case has been placed upon, should be raised. Where objection is raised to the affidavit or notice upon which a case has been placed upon the short cause calendar, such objection should be called to the attention of the court at an earlier date than when the cause is reached for trial.</p> <p>4. Abstract—presumption which arises from a defective. When an abstract is defective in omitting some matter which if it appeared therein might correct an error complained of, the presumption will be indulged by the court.that such matter does, in fact, correct such error.</p>

<p>Mechanics’ lien proceeding. 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. Motion for new trial—when points in support of, are waived. Where a written motion specifying the grounds for a new trial has been filed which omits to specify a particular ground, such omitted ground is waived and cannot be assigned as error upon appeal, notwithstanding a general specification contained in such motion.</p> <p>2. Commissions for procuring loan—when, deemed earned. Commissions for procuring a loan upon Teal estate are earned when the broker finds a person ready to make the same,</p>

<p>1., Appraisement—when party has not wrongfully sought ^to prevent. Held, under the particular facts of this case, that the defendant did not prevent the appraisement provided for by the lease in question by any wrongful act or conduct on his part.</p> <p>2. Rents and income—when, not competent to be shown to determine the value of the lot Where a lease provides that the lot, exclusive of the buildings, is to be appraised. Evidence of the rent or net income derived from the buildings located thereon is not competent to show the value of the lot exclusive of the buildings.</p> <p>3. Lease—when effect of a, should not be considered in determining the value of a lot. The effect of a lease in determining the 11 cash value of the demised premises, exclusive of the buildings and improvements thereon,” is properly not taken into consideration inasmuch as the lot only is to be appraised.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>1. Finding of court—effect of, upon appeal. The finding of the trial court upon a controverted question of fact is conclusive upon the Appellate Court, unless manifestly against the weight of the evidence.</p> <p>2. Special and consequential damages—when, may be recovered in an action for breach of contract. Such damages in such a case can only be recovered where the defendant, prior to and at the time of the making of the contract in question, has been informed of the purposes for which the property ordered was desired.</p>

Action commenced before justice of the peace. Appeal from the Circuifc Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court'at the October term, 1903.

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neeley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

Information in the nature of a quo warranto to test the validity of dram-shop license. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>Bill for an accounting. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term. 1903.</p>

<p>Action of assumpsit. 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>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County: the Hon. Russell P. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Ghetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

Action on the case for personal injuries. Appeal from the Superior Court of Cook County: the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1903.

<p>1. Jury trial—right to, in separate maintenance proceeding. The right to a jury trial in a proceeding for separate maintenance is fixed by the Chancery and not by the Divorce Act, and-such right, therefore, is not absolute but may be granted or denied within the sound discretion of the court.</p> <p>2. Estoppel—iphen an, to object- arises. Where counsel upon a trial of a case agrees with opposing counsel and the trial court as to the correctness of a particular method of procedure, the party represented by such counsel cannot, upon appeal, contend that sutih procedure was erroneous. -</p> <p>3. Common-law marriage—when presumption is against a. Where it appears that the relations between a man and a woman commenced meretriciously, the presumption is, in the absence of proof of actual marriage, that the character of such relations did not change.</p>

Action on the case for damages arising from the maintenance of alleged nuisance. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1903.

<p>1. Stoppage in transit—right of. The right of stoppage, in transit between the seller and buyer of personal property arises upon the insolvency of the latter and continues until the carrier actually delivers the goods to the buyer, or upon his order, or to a bona fide purchaser holding a bill of lading indorsed by the buyer. A mere resale by the buyer without an actual delivery of the goods or an assignment of the hill of lading therefor, does not defeat such right.</p> <p>■ 2. Invoice—effect of, to pass title. An invoice or bill of lading does not in itself operate to pass title.</p> <p>3. Personal property—ro/ie?i title to, does not pass. Where goods are shipped by one to another, but are, before they reach their destination, stopped in transit because of the insolvency of the consignee, and where such consignee has attempted to make a resale of such goods, such resale is not effected where the purchaser did not receive an order upon the railroad company for such goods and did not have a bill of lading therefor; and the subsequent possession of such goods by such purchaser, acquired by means of a replevin suit, does not alter the case, notwithstanding such purchaser may in perfect good faith have paid his money in expectation of getting the goods in question.</p> <p>4. 'Election of remedies—when, does not operate as an estoppel. Where a particular remedy is resorted to without full knowledge of all the facts, an estoppel is not created, and a right to adopt a different remedy exists upon acquisition of complete knowledge of all the facts.</p> <p>5. Instruction—must be based upon evidence. An instruction is improper which is not predicated upon the evidence.</p> <p>6. Letter—when, incompetent. In a case where the consignor of goods which, before .delivery, were by him sought to be stopped in transit, is seeking to recover the same from one who has purchased the same from the consignee, it is not competent to receive in evidence a letter from the attorneys of such consignee, demanding payment from such purchaser for such goods.</p>

<p>1. Equity—ibhen jurisdiction may not be taken by, where its jurisdiction is concurrent with that of law. In such a case it is within the sound discretion of the chancellor whether or not he will assume jurisdiction.</p> <p>2. Insurance policy—when equity will not take jurisdiction to cancel. Where an insurance policy is claimed to have been obtained by fraud upon the part of the insured, who subsequently died, equity will not take jurisdiction of a bill to cancel such policy, where suit thereon must be brought within a year, inasmuch as the remedy at law is complete, unless there are some special circumstances; possible delays of trial and unfriendly witnesses are not such as will impose jurisdiction.</p>

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

<p>1. Noxious odors—how proof of effects of, made. For the purpose of proving that odors were capable of producing discomfort and sickness, it is competent to permit persons, other than the plaintiff to testify th.at they were severally nauseated and made sick by such odors, the court instructing the jury the plaintiff was not entitled to recover for any discomfort or sickness caused to others by such odors.</p> <p>2. Verdict—how amount of, must be determined. The amount of money necessary and proper to compensate a person for damages suffered is not to be stated by witnesses nor by the judge who tried the case, nor can it be ascertained by any rule of arithmetic ; it must be left to the sound judgment of the jury, under proper instructions, to fix the amount in view of all the circumstances of the case, and the mere f acj that the jury’s finding is larger than an appellate tribunal would, in the first instance, have awarded, is not ground for setting it aside and granting a new trial.</p>

<p>1. Contract—when void provision in, destroys its entire validity. Where several parties join in an entire contract and the promises of each party are dependent upon the promises of every other party thereto, so that all the promises of each party form an entire consideration for the promises of the other, then if any substantial provision of the contract is illegal, the entire contract is void.</p> <p>3. Option contract—when particular provision constitutes an. Where a contract contains a provision by which certain parties thereto agree, for a valuable consideration, that at the expiration of a specified period they will or will not sell certain corporate stock as they may see fit, such contract is void because of such provision, inasmuch as the same constitutes an option contract contrary to the statute.</p> <p>3. Public policy—when contract is contrary to. A provision in a contract by which the holders of the controlling interest in a corporation agree that they will elect certain stockholders, officers thereof, for and during a certain period at a specified salary, is contrary to public policy and void.</p>

<p>1. Verdict—to/urf considered in determining whether a, shoidd he set aside as contrary to the evidence. In determining whether a verdict should be set aside as contrary to the evidence, it must'be taken into consideration, where such is the fact, that the jury were instructed more favorably for the unsuccessful party than he had a right to expect.</p> <p>2. Cross-examination—when party cannot complain as to lacle of opportunities for. Where one party to a cause when called as a wbtness is examined in such way as to leave the other party in doubt as to his right then to cross-examine as to particular matters, or to lead him to suppose that such party would testify in#rebuttal to matters not touched upon then,.offering at that time the proper opportunity for cross-examination, and where such party is not again called to the stand, the complaining party is entitled to no consideration on appeal, especially where he did not ask the trial court to reopen the case and permit further cross-examination.</p> <p>3. Examination of books—what waiver of insurance company's right to. The positive refusal of an insurance company to pay the loss is an absolute waiver of its right under the policy to examine the books of the insured.</p> <p>4. Verdict—when, not disturbed. Where the jury have determined the facts in issue and the trial judge has approved the verdict by entering judgment thereon, a court of review will not disturb the verdict and judgment, even though their correctness be doubtful, unless they are clearly and palpably against the weight of the evidence.</p> <p>5. Commencement of suit —what is. The filing of the praecipe and the issuance of the summons is the commencement of a suit within the meaning of the clause in an insurance policy which requires that suit shall be commenced within a certain period named therein.</p> <p>6. Computation of time—how, made in Illinois. In Illinois the proper method of computing time when a certain act is to be performed within a particular period from or after a specified time, is to exclude the day named and include the day on which the act is to be done.</p> <p>7. Declaration—proper form of, in assumpsit, ivhere the instrument sued upon is set out in haee verba. It is sufficient where a declaration in assumpsit is based upon an insurance policy set. out in haee verba, to allege generally the performance of all conditions precedent and that the loss did not happen by reason of any of the conditions provided against in such policy.</p> <p>8. Incendiarism—idhat not competent to prove. Where one sues upon an insurance policy and the defense is incendiarism, proof of fires other than the one forming the basis-of the suit is not competent.</p>

Action commenced before justice of the peace. Appeal from the County Court of Cook County; the Hon. John H. Batten, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Russell P. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

Action on the icase for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Alonzo K, Vickers, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1802.

<p>1. Default—when defendant cannot be regarded as in. So long as the answer of a defendant is on file, he cannot be regarded as being in default, nor can a judgment be rendered against him except upon a trial.</p> <p>2. Salary voucher—ivhen mandamus does not lie to compel issuance of. Mandamus does not lie to compel the issuance of a salary voucher which has not been authorized or ordered issued by the county board, as provided by statute.</p> <p>3. Mandamus—when, does not lie. Mandamus does not lie where the right is doubtful.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902. Appellee recovered a judgment in an action for personal injuries from which this appeal is prosecuted. The accident occurred at a railroad crossing where Twenty-fourth place running east and west crosses a system of eight railroad tracks.

Proceeding under the Divorce Act to obtain support money for child. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Action of debt with attachment in aid. Appeal from the Circuit Court of Cook County; the Hon. Richard W.Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Interested witness—when, incompetent. A party to a cause is not competent as a witness therein where the adverse party sues or defends in a representative capacity, and even where in the trial of such cause some other person testifies on behalf of such adverse party, such interested witness can only testify with respect to the same conversation or transaction testified to by such person.</p>

Proceeding to enjoin municipality from removing street stand. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904.

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judgp, presiding. Heard in the Branch Appellate Court at the October term, 1902.

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles Gr. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.

Action commenced before justice of the peace. 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 on the case for personal injuries. 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 on the case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook; Judge, presiding. Heard in this court at the February term, 1903.

<p>Action of assumpsit. Appeal from the Circuit Court of Effingham County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1903.</p>

<p>1. Pool-room—injunction to restrain maintenance of. Equity will restrain by injunction the maintenance of a pool-room where it appeal's that law-abiding citizens in the vicinity thereof are annoyed and disturbed thereby, and where it appears that by reason of the maintenance thereof property interests in the vicinity are injuriously affected.</p>

<p>The questions involved in this case are disposed of in the opinion rendered in the case of Schumacher v. Chicago & Northwestern Railway Company, 207 Ill. 199.</p>

Action on the case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Benjamin R. Burroughs. Judge, presiding. Heard in this court at the August term, 1903.

<p>Action of assumpsit. Appeal from the Circuit Court of Clay County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the August term, 190S.</p>

Action commenced before justice of the peace. Appeal from the City Court of Alton; the Hon. Alexander W. Hope, Judge, presiding. Heard in this court at the August term, 1908.

<p>1. Verdict—when, set aside. Notwithstanding there may be evidence tending to prove all that is required to warrant a recovery, still where the verdict is so manifestly against the weight of the evidence as to make it apparent to the court that it was not the result of the impartial and honest judgment of the jury, but must have resulted from mistake, partiality, prejudice, passion or some improper motive or conduct, it is the duty of the court to set aside the verdict and award a new trial.</p>

Action commenced before justice of the peace. Appeal from the County Court of Crawford County; the Hon. Ausby L. Lowe, Judge, presiding. Heard in this court at the August term, 1903.

Proceeding to redeem from alleged constructive mortgage. Error to the Circuit Court of Madison County; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the August term, 1903.

Action on the case for personal injuries. Appeal from the Circuit Court of Jackson County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the August term, 1903.

Action on the case to recover damages caused by alleged backing up and standing of water against plaintiff's premises. Appeal from the Circuit Court of Jackson County: the Hon. Oliver A. Barker, Judge, presiding. Heard in this court at the August term, 1903.

Action on the case for personal injuries. Error to the Circuit Court of Massac County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the August term, 1903.

<p>1. Decree by consent—when, not disturbed upon bill of review. Where a decree of foreclosure has been entered pursuant to an agreement by which it was intended by all parties to settle and adjust all matters of difference and account and to determine and settle the status of the indebtedness between the complainant and the defendants, it will not be set aside upon a bill of review.</p> <p>2. Bill of review—when, lies upon ground of fraud. To maintain a bill of review and open a decree upon the ground of fraud, the allegation must be specific in fact and circumstance that"the court may determine on demurrer whether there is sufficient ground for the relief prayed, and whatever the complaint, if it appears that the complainant was heard as to matters complained of, or had opportunity to be heard in the original proceedings, the decree will not be disturbed. The charge must be coupled with a tender of proof sufficient to sustain it, and this must be alleged under specification that the court may determine its value. Particular facts relied upon must be supported by the affidavit of witnesses by whom such proof can be made.</p> <p>3. Bill of review—«Aero, does not lie. A bill of review does not lie to vacate on review a decree entered by consent, unless such consent was obtained by fraud or mistake.</p> <p>4. Bill of review—when leave .to file, is essential. Leave so to do should be obtained before filing a bill to review a decree upon grounds of fraud and newly-discovered evidence.'</p>

Action 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, 1903.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1903.</p>

Action of forcible entry and detainer. Appeal from the Circuit Court of Lawrence County; the Hon. Enoch E. Nbwlin, Judge, presiding. Heard in this court at the August term, 1903.

<p>Action 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, 1903.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the August term, 1903.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the August term, 1903.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1903.

<p>Action on the case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1903.</p>

<p>1. Election of remedies—ivhen creditor not bound to make. A creditor having collateral security for his claim is not held to an election of remedies, but may prosecute simultaneously whatever actions in law or in equity are warranted by the principal and collateral obligations.</p> <p>2. Breach of contract—remedies for. Upon a breach of a contract pertaining to the sale or exchange of "property, one cannot at the same time or successively maintain an action for damages in a court of law and a bill for specific performance in a court of equity. (So held by way of dicta.)</p> <p>3. Injunction—when, does not lie to restrain collection of judgment. Where it is contended that a judgment at law has been paid, the remedy to prevent the enforcement of such judgment is mot by bill in equity to restrain the collection thereof but by the ancient writ audita querela, or by motion in the nature of such writ made in the court in which such judgment has been rendered.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1903.

<p>Action on the case to recover damages for injuries alleged to have arisen to a school building by the construction and operation of a railroad. Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the August term, 1908.</p>

<p>Proceeding to redeem from alleged constructive mortgage. Error to the Circuit Court of Effingham County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the August term, 1903.</p>

<p>Action of assumpsit upon insurance policy. Appeal from -the City Court of East St. Louis; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the August term, 1903.</p>

<p>1. Petition foe change of VBNUE^irZien. not part of record. A petition for a change of venue and an affidavit in support thereof are not parts of the record unless preserved by the bill of exceptions or certificate of evidence.</p> <p>2. Executors—when, liable for loss sustained by estate. Where personal property of an estate is sold at private sale pursuant to order of court and is purchased by a person with a 'fund in which one of the executors has a half interest, the entire loss sustained by the estate by reason of the sale of such property at the price at which it was sold, should be charged to the executors.</p> <p>3. Executors’ sale—effect of approval of. Where an executors’ sale of personal property, through a breach of trust 6y one of the executors, results in a loss to the estate, the liability of such executors for such loss is not discharged by the merefact that such sale was reported to the court and tiy it approved.</p> <p>4. Account—executors' liability to. Where evidence has been introduced tending to show that certain moneys have come into the possession of executors, it is their duty satisfactorily to account for such moneys.</p>

<p>1. Fellow-servants—when question of, cannot be raised. The question of fellow-servants cannot be raised by the defendant in an action on the case for personal injuries for the first time upon appeal.</p> <p>2. Release—burden of proof to overcome effect of. The burden or proof is upon the plaintiff to establish that a release set up by the defendant as a defense to an action for personal injuries, was, as set up in his replication, without valuable consideration and procured by fraud.</p> <p>3. Instruction—must not ignore theories of recovery. An instruction asked by the defendant is properly refused where, if followed, it would cause the jury to ignore theories of recovery contained in other counts of the declaration upon which the trial was had.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Randolph County; the Hon. William Hartzell, Judge, presiding. Heard in this court ait the August term, 1903.</p>

<p>1. Fellow-servants—when guestion as to who are, is one of law. The question whether the relation of fellow-servants exists only becomes a question of law when there is no dispute with reference to the facts and when the evidence and the legitimate conclusions to be drawn therefrom are such that all reasonable men will agree to the existence of the relation of fellow-servants.</p> <p>2. Fellow-servants—when ordinary laborer and his foreman are not. Where the vice-principal appointed by the master, abdicates Iris position as vice-principal, and acts as a co-laborer with a servant, it is held in some instances that he becomes a fellow-servant with the latter and that in such case the master is not responsible for his negligence; but where the negligent act happened or resulted directly from the exercise by the vice-principal of the authority conferred upon him by the master over his co-laborer, the master will be liable.</p>

Proceeding to enjoin defendant from engaging in particular business. Appeal from the Circuit Court of Richland County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the August term, 1903.

<p>Action on the case under Dram-Shop Act. Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the October- term, 1903.</p>

<p>1, Witness—right of court to disqualify, from testifying. Where witnesses have, by order of court, been excluded from the court room while other witnesses in the cause are testifjüng, and one of them disobeys such order and listens to the testimony of other witnesses, the court has a discretion to refuse to permit such witness to testify; but such discretion is a reasonable and not an arbitrary one and its .abuse is subject to review.</p> <p>3. Witness—when court abuses discretion in disqualifying a. It is not a reasonable exercise of the discretion referred to in the preceding paragraph of this syllabus for the trial judge to deprive a party of .a witness who has heard testimony in violation of such an excluding order, unless such party, or his attorney, is in some way responsible for such violation or has connived at it or has knowingly permitted it'without objection; but even in the latter case a sound judicial discretion should in all cases of doubt lean toward the admission of the testimony of such a witness. But where objection is made to a witness upon the ground of the violation of such an order, such objection should be supported by proof, and the party urging the same loses the right so to object' if he, knowing that such an order was being violated, permits the same to continue without calling the attention of the court thereto.</p> <p>8. Witness—when materiality of the testimony of a, who has improperly been excluded, need not be shown. Where the court has impivperly disqualified a witness, it is not necessary in order to sustain an assignment of error based upon such disqualification, to show the materiality of the evidence which such witness would have given, where such materiality appears from the record as a whole.</p>

<p>1. Ordinance—right to presume obedience of. Every person who would be benefited by compliance by a railroad company with a valid ordinance, is entitled to the protection that obedience to such ordinance would furnish, and every such person has the right to assume that it will not be violated.</p> <p>3. Instruction—when, pertaining to cheeking speed of train, is properly refused. ■ An instruction which tells the jury that it is not the duty of a railroad company to check the speed of its trains at street crossings for travellers, is calculated to mislead the jury, and is, therefore, properly refused where such instruction is ofíered in a case in which it appeared that the train of the railroad company was gunning within the limits of a municipality at a speed prohibited by ordinance.</p> <p>3. Instructions—propriety of referring to deelaration in. It is proper in the instructions to refer the jury to the declaration.</p> <p>4. Instructions—need not repeat. An instruction is properly refused where its substance is contained in another instruction given.</p> <p>5. Instructions—ivhen alleged errors in refusing, are waived. Where the appellant does not in his opening brief discuss the instructions claimed to lisve been erroneously refused by the court, but merely by a generalization insists upon their pertinency and propriety, the court will deem the alleged errors in refusing such instructions to have been waived.</p> <p>6. Instructions—must not be argumentative. Instructions are properly refused where argumentative in form.</p> <p>7. Instructions—must not leave Questions of laio to jury. Instructions are erroneous which require proof of the “ material ” allegations of the plaintiff’s declaration, without explaining to the jury what are such material allegations,</p> <p>8. Ordinary care—when jury may consider instinct of self-preservation in determining whether, has been exercised. The jury have the right to take into consideration the natural instincts which prompt men to the preservation of life and the avoidance of injury, where an accident has resulted in death, where there was no eye-witness to the accident other than one who, while he saw deceased just prior to the accident, did not look at him all the time and did not observe whether he took any precautions to ascertain the approach of the train which caused his injury.</p> <p>9. Dismissal—what not ground for ordering a. The failure of’ a plaintiff to pay the costs of a former suit brought upon the same cause, of action is not ground for ordering the dismissal of one subsequently brought.</p> <p>10. Costs—effect of failure to pay, awarded in former suit upon same cause of action which has been abandoned. In this case the court intimates that there might be a case of vexatious procedure in bringing successive suits for the same cause of action and then abandoning them which would render it an abuse of discretion for the trial court not to stay the pending action until the former costs awarded against the plaintiff have been paid.</p>

<p>1. Questions of law—when, do not arise upon appeal. Where a case has been tried by the court without a jury and no objections or exceptions preserved to the testimony, no propositions of law presented, and no exception of any kind preserved except that interposed to the judgment, the only question presented upon review is whether, under all the evidence, treating it all as competent or as heard without objection, the judgment is sustained by the facts.</p> <p>2. Execution—when error in awarding, against municipality, is waived,. An error in awarding an execution against a municipality is waived by failure to assign such action as error.</p> <p>3. Title of case—when irregularity in, is waived. Where the cleric has kept the title of a case so that the judgment therein appears to be in favor of a person not a party to the record, such defect is waived by failure to assign the same as error.</p> <p>4. Forfeiture—when particular provision in ah ordinance does not provide for. A provision in an ordinance creating a water works company to the effect that if such company shall fail to furnish to the inhabitants of the enacting municipality water fit for drinking and domestic purposes, such municipality may give to such company notice of such failure, and if such company does not, within the period prescribed by such ordinance, maintain such filtering processes as will make the water suitable for such purposes, that then, from and after the expiration of such time and until such time as such company does maintain such filtering processes and supply such water, such municipality shall be relieved from paying hydrant rentals provided for in such ordinance, is valid, as a provision for stipulated or liquidated damages, does not provide for a forfeiture, and exempts such municipality from liability to pay for water used by it from such hydrants for the period ensuing after the expiration of the time fixed in such notice, during which such company so fails to furnish such water.</p> <p>5. Waiver—when acceptance of water works is not a, of provisions of franchise ordinance. The acceptance by a municipality of water works which do not contain certain filtering processes required by the franchise ordinance, if essential to keep the water to a certain purity, is not a waiver of such ordinance provision where the portion of such ordinance providing for such acceptance did not require a preliminary test of the water and it does not appear that at the time of such accept-, anee the municipal authorities knew of the impurities of the water.</p> <p>6. Notice—when service of notice upon water ivorks company is sufficient. The service upon the superintendent of a water works company of a notice provided for in the ordinance granting the franchise under which such company works, is good service upon such company.</p> <p>7. Notice—when alleged defective service of, is frivolous. A claim to the effect that the notice provided for by the franchise ordinance, has not been duly served, is frivolous where it appears that such notice was received and acted upon.</p> <p>8. Innocent purchasers—when bondholders of water works company are not. Persons purchasing bonds of a water works company are bound at their peril to ascertain the terms of the ordinance creating such company.</p>

<p>1. Opinion of witness—when particular question does not call for the. Where a witness has stated that he knew the working condition of a semaphore at a particular time, a question asking him what such condition was at such time, calls for the statement of a fact and not for a mere opinion.</p> <p>2. Conditions after accident—ivhen evidence of, competent. Held, in this case, where the condition of a semaphore at the time of the accident was a material question, that in view of all the evidence it was competent to prove what such condition was soon after the accident occurred. , ■»</p> <p>3. Motion to exclude—when, essential to urge incompetency of particular evidence. Where the court has admitted a photograph with the statement that if it turned out that a semaphore shown therein was not the one in question in the case a motion to exclude would be entertained, it is essential that such motion should be made in order thereafter to urge the incompetency of such photograph.</p> <p>4. Photograph'—when admission of, if improper, is harmless error. Where it is claimed that a photograph has been improperly received in evidence because of showing a semaphore not the one involved in the case, such claim,is without merit, even though, technically, the photograph may have been improperly received in evidence, where the construction of such semaphore and the manner of operating it had been orally described, and such description not disputed in the proof,</p> <p>5. Ordinance—whey, regulating speed of passenger trains in municipality is incompetent. An ordinance restricting the speed of passenger trains within the limits of a particular municipality, is incompetent in an action for personal injuries arising from a collision of the trains of two different roads, where such ordinance is offered by the defendant for the purpose of showing the contributory negligence of the plaintiff who was a fireman employed upon one of the trains, but who did not have the control of the operation thereof.</p> <p>6. Tort-feasor—what ivill not excuse. A wrong-doer cannot be heard to say in defense that another tort-feasor contributed to the wrong.</p> <p>7. Fellow-servants—when doctrine of. does not apply. The doctrine of fellow-servants is only applicable as between master and servant.</p> <p>8. Instruction—when a correct, need not he given. An instruction which contains a correct abstract proposition of law not applied concretely to the case, if refused, does not constitute error.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Stephenson County; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1903.

<p>Proceeding in attachment. Error to the Circuit Court of Carroll County; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>1. Means of support—when liability for loss of, does not attach under Dram-Shop Act. In an action brought under the Dram-Shop Act, seeking to impose liability upon the defendants for loss of means of support, a recovery cannot be sustained where it appears that the death of the person who was the means of support of the plaintiff was the result of bis own wilful and unlawful conduct.</p> <p>2. Means of support—token Dram-Shop Act does not impose liability for loss of. Liquor dealers are by virtue of this act only held to responsibility for the natural results of their traffic; they are not responsible for conduct which is in no way caused by it, and the statute does not impose liability where the intoxication complained of did not cause or contribute to the injury in question.</p> <p>3. Reversal without remandment—when, will not' be ordered. Where the Appellate Court reverses because of the failure of proof, it will not refuse to remand where it concludes that mure light may be cast upon the case upon another trial.</p> <p>4. Statutes—how. construed. Statutes should, if reasonably possible, be so construed as to render them valid.</p> <p>5. Cross-examination— what proper. Where a witness upon direct examination has testified that he was drunk, it is proper upon cross-examination in order to ascertain the truth of such statement to inquire as to what he said immediately after the time when it was claimed he was so drunk.</p> <p>6. Witness—when testimony of, does not conclude the party calling him. Where a witness testifies in such manner as to surprise the party calling him, such party is not concluded thereby but may show a different state of facts by another witness.</p> <p>7. Verdicts—power of Appellate Court .over. The final duty of determining whether a verdict is clearty. against the weight of the evidence is confided to the Appellate Court, and where that court is convinced that a verdict is so against the weight of the evidence, it will set it aside.</p>

<p>Contest upon objection to executor’s report. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1903.</p>

Action commenced before justice of the peace. Appeal from, the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the October term, 1903.

<p>Contest upon objections to administrator’s amended inventory and to administrator’s final report. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1903.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of De Ealb County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the October term, 1903.

<p>Proceeding for accounting. Error to the Circuit Court of Kendall County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>Action of replevin. Appeal from the County Court of Peoria County; the Hon. Wilbert I. Slehmons, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>1. Measure of damages—io7iere instructions up>on, in personal injury case, are erroneous. Instructions are erroneous which leave the measure of damages in an action on the case for personal injuries to the unlimited discretion of the jury.</p> <p>2. Attempted dismissal—when railroad company cannot complain of an, of a co-defendant. Where, during the progress of a trial, the plaintiff by leave of court strikes the name of one defendant from the summons and in the last amended declaration changes the word “ defendants ” occurring therein to the word “ defendant,” the remaining defendant cannot complain because the plaintiff did not formally dismiss his action as to such co-defendant.</p>

Proceedings to enjoin issuance of municipality warrants, etc. Appeals from Circuit Court of Iroquois County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the October term, 1903.

Contest upon claim against deceased’s estate. Appeal from the Circuit Court of LaSalle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the October term, 1903.

<p>1: Possession—when evidence does not establish, in forcible detainer case. Held, from the evidence in this case, that it did not appear that the defendant was in possession of the land claimed at the time demand was made upon and suit commenced against him.</p> <p>2. Forcible detainer—zvhat essential to maintain action of. It is indispensable to the plaintiff’s right to maintain forcible detainer that the possession of the defendant and his refusal to surrender his possession on demand, be established.</p> <p>3 Forcible detainer—when complaint and judgment in, da not sufficiently describe the land in question. The complaint and judgment in forcible detainer insufficiently describe the land in question where such description is as follows : “ Lots numbered thirty-three and thirty-four in section twenty-six in township twenty-nine north, of range one west of the third principal meridian, situated in the county of Marshall, in the State of Illinois.”</p> <p>4. Forcible detainer—how complaint and judgment in, should describe the land in question. The complaint and judgment in forcible detainer should describe the land by some recognized government survey, or else in some way which would enable an officer with a writ to find the premises without resort to extraneous aid to the description.</p> <p>5. Admissions of counsel—effect of. Admissions of counsel upon the trial of a civil suit may obviate the necessity of proof of the subject-matter of such admissions.</p> <p>6. Opening statement of counsel—when, not part of record. An opening statement made by counsel is no part of the record and is, therefore, not before the Appellate Court, where it is not preserved by bill of exceptions.</p> <p>7. Deed—when general objection to the introduction of, is insufficient. A general objection to the introduction of a deed is not sufficient to raise questions as to the uncertainties and imperfections in the description of the land thereby conveyed.</p>

Action of assumpsit upon drainage district bond. Appeal from the Circuit Court of Kankakee Coun,t)r; the Hon. John Small, Judge, presiding. Heard in this court at the October term, 1903.

<p>1. Party—who is a necessary, to a bill to remove a cloud and reform a deed. A party who has or claims such an interest in land as lo render it necessary or desirable that such interest be adjudicated, is a necessary party to a bill to remove a cloud and reform a deed. *</p> <p>2. Party—when claimant should be admitted as. A claimant should upon his or her motion be admitted as a party to a bill to remove a cloud and to reform a deed where it appears that he or she is a necessary party thereto. «</p> <p>3. Answer—when exceptions to. are improperly sustained. It is improper to sustain exceptions to an answer and cross-bill and to adjudicate the issues thereby raised without permitting the defendant and cross-complainant to be heard touching such issues, where such issues are necessary and proper to be determined in orce: to adjudicate the rights and interests of the parties to the litigation including the rights and interests of such defendant and cross-complainant.</p> <p>4. Freehold —when, not involved. Upon the authority of Prouty v. Moss, 188 Ill. 84, it is held in this case that a freehold was not involved.</p>

<p>1. Preponderance of evidence—7iow, determined. It is not always true that the weight of the evidence is upon the side producing the larger number of witnesses; there may be that in the appearance of a witness, the story which he tells and the manner in which he tells it, which detracts from the value and weight of his testimony.</p> <p>3. Verdict—when, not disturbed. A verdict will not be disturbed upon appeal unless it is manifestly and palpably against the weight of the evidence.</p>

<p>Action on the case under Dram-Shop Act. Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>Action of assumpsit upon promissory note. Error to the County Court of La Salle County; the Hon. Henry W. Johnson, Judge, presiding. Heard in this court at the October term, 1903.</p>