Volume 113 — Illinois Appellate Court Reports

Action on the case for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Dorbance Dibell, Judge, presiding. Heard in this court at the October term, 1903.

<p>This case is controlled by the opinions rendered in Wilson v. Village of Cedarville, 109 Ill. App. 316, and Kuntz v. Village of Cedarville, 109 Ill. App. 330.</p>

<p>1. Indorsement—token parol evidence is incompetent to vary contract of. Ordinarily, it is incompetent to show by parol an agreement between indorsers and an indorsee, who in turn lias indorsed the note to another, to the effect that such indorsers were not to be held liable as such.</p> <p>3, Evidence—when incompetent utider the pleadings. Evidence is incompetent which merely tends to establish an issue which is not relied upon in the pleadings.</p>

Contest upon claim against deceased’s estate. Appeal from the Circuit Court of Putnam County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1903.

Action on the case to recover for injury to real property. Error to the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the October term, 1908.

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

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

Action on the case for personal injuries. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the October term, 1903.

<p>1. Bill of exceptions— how, may not be impeached. A bilbof exceptions upon appeal is absolutely presumed to speak the truth and its certifications cannot be impeached by statements of counsel contained in their briefs.</p> <p>2. Instruction—when, properly refused. Where counsel in a cause state in open court that there is but one issue to be determined, it is proper for the court to refuse an instruction offered by such counsel upon some other issue than that referred to in his statement.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1903.

<p>Action of trover. Error to the Circuit Court of McHenry County; the Hon. Charles E. Fuller, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>Action of assumpsit. Error to the County Court of Peoria County; the Hon. Wilbert I. Slemiioks, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>Action of assumpsit upon insurance policy. 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>

Action on the case for personal injuries. Appeal from the Circuit Court of Will County; the Hon. John Small, Judge, presiding. Heard in this court at the October term, 1903.

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

<p>1. Brief—waiver of errors by. Errors assigned but not argued are deemed waived.</p> <p>2. Separate maintenance—what entitles to. A wife in order to obtain separate maintenance need not show a statutory ground for divorce, but it is sufficient if a persistent, unjustifiable course of conduct on the part of the husband be shown which necessarily renders the life of the wife miserable.</p>

<p>Action commenced before justice of the peace. 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>

<p>1. Verdict—whan, will not be disturbed. A verdict will not be disturbed when no errors of law appear, unless against the clear preponderance of the evidence.</p> <p>2. Application for insurance—when false statements in, will not defeat recovery upon policy. False statements contained in an application for insurance will not defeat a recovery upon the policy issued pursuant thereto where the facts claimed to have been suppressed were known to the agent who solicited the insurance; and notice to such agent is notice to the company.</p> <p>3. Premium—when, deemed paid. The acceptance by the agent of an insurance company of notes for the premium and the delivery of the policy completes the contract and puts the policy in full force precisely as though the premium had been paid in cash; and this notwithstanding the policy may have specifically provided that the same should not be in force until the premium has been paid.</p> <p>4. Insurance policy—when right to cancel, does not exist. When no right of cancellation is reserved in a policy of insurance, neither X>arty has the right to withdraw himself from the obligations imposed thereby without the consent of the other, and where such a policy is made for the benefit of another, the consent of such beneficiary must also be obtained.</p> <p>5. Insurance policy—when insured may not surrender. Where a husband obtains a policy on his life for the benefit of his wife and children, he cannot surrender the same without the consent of his beneficiary.</p> <p>6. Insurance policy—right to assign. An insurance policy is not negotiable in this state either by virtue of the common law or by statute, and the same cannot be assigned so as to vest the legal title in the assignee.</p> <p>7. Insurance policy—how, sued upon, where assigned. Where an insurance policy has been assigned, the suit must be broughtin the name of the assignor for the use of the assignee.</p> <p>8. Usee— effect of suing for benefit of. The use in the declaration of the words “for the use,” etc., are mere surplusage and are only inserted to protect the assignee from the claims of the plaintiff and serve to give notice to the defendants of whatever interest the usee may have; all defenses can be interposed to the action in this form of pleading that could have been interposed had tbe usee’s name been eliminated.</p> <p>9. Trover—who may maintain, for conversion of insurance policy. The beneficiary of an insurance policy which during the life of the insured has been wrongfully converted by the agent of the company, may, after the death of such insured, maintain trover on account thereof and recover from the company the amount due thereunder, notwithstanding such policy may have contained a provision reserving to the insured the right at will to change the beneficiary named in the policy.</p> <p>10. Trover—joinder of counts in. Counts in case and counts in trover may b.e joined in the same declaration.</p> <p>11. Joinder or counts—test of determining propriety of. The test as to whether different causes of action can be properly joined, depends upon whether the same judgment can be rendered on both.</p> <p>13. Juror—when, not disqualified to serve. "Where a juror has upon his voir dire answered questions truthfully and it does not appear that he was absolutely disqualified to serve in the capacity of juror, a fact subsequently discovered which might have justified a peremptory challenge, will not affect the validity of the verdict in which he participated.</p>

<p>1, Assignment of errors—how, to he made. The assignment of errors must be made upon the record in order to obtain a review, and' the mere assignment of errors in the abstract does not cure this omission.</p>

<p>Proceeding to enjoin collection of execution. Appeal from the Circuit Court of Grundy County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>1. Ordinary garb—when instruction upon, is improper. An instruction upon the degree of care which is required of a child, which is correct so far as it goes but which omits certain elements, is improper, but may be supplemented and cured by other instructions which supply the omitted elements; the giving of such an instruction is harmless error in a case where there is no pretense that contributory negligence is imputable under the facts.</p> <p>2. Verdict—how directions as to form of, may be given. Directions as to the form of a verdict are not deemed instructions in the strict sense and may be given orally or in writing.</p> <p>3. Verdict—when directions as to form of, do not constitute error. "Where the court upon its own motion gives to the jury a written instruction as to the form of the verdict but omits specifically to inform the jury therein that they may find one of the defendants guilty and the other not guilty, reversible error is not committed, it being the duty of the defendants, if they desire such an instruction, to have prepared and submitted an instruction upon the point.</p>

<p>1. Freehold—when, involved. A freehold is involved within the meaning of the constitution and the statutes where the necessary result of a judgment will be that one party will gain and the other lose a freehold estate, or where the title is so put in issue by the pleadings that the determination of the case necessarily requires a decision of such issue.</p> <p>3. Freehold—when, involved. A freehold is involved where the question at issue is whether particular land was dedicated as a street, and this is true regardless of whether the claim that the dedication was by a statutory or through a common law source.</p>

<p>1. Drainage district—how amount for which a, is liable, where it connects with the ditch of another district, is determined. The amount to be paid by a drainage district in such a case is determinable alone by the benefits accruing to the lands in such connecting district by reason of such connection. •</p> <p>2. Drainage Act—construction of section 42 of. The mere fact that a>t the time of the connection by one drainage district with the outlet ditch of another, such outlet ditch had not been “ already made,” does not affect the liability of such connecting- district to pay for the benefits accruing to the lands within the same by reason of such connection, where the plans for the two drainage districts appeared to have been adopted about the same time and in contemplation of each other.</p> <p>3. Benefits—what does not relieve drainage district from liability to pay. Where an outlet ditch has in its inception, enlargement and. extension been constructed for the benefit of the undertaking district alone and another district subsequently connects therewith, recovery cannot be obtained from such connecting district for the cost of such enlargement and extension, but such connecting district is liable for the amount of benefits accruing to the lands exclusively in its district.</p> <p>4. Benefits—token estoppel to deny, arises. Where one drainage district connects with another it becomes estopped to deny that some benefit accrued to the land within its limits.</p> <p>5. Benefits—what evidence competent in proof of. In an action to recover benefits accruing to land within a drainage district which has connected with the outlet ditch of another district, it is competent to show the relative volume of water carried by the ditches of the two districts and the relative acreage included in the two districts.</p> <p>6. Benefits—what does not bar recovery for. Where a drainage district has constructed a system of drainage and received payment of an assessment levied for that purpose upon the lands located therein, such payment does not bar a recovery of benefits from the drainage district subsequently connecting with the outlet ditch of such system, notwithstanding some of the land upon which such assessment was levied was, likewise, located in such connecting district; in such ease the recovery is from, and the benefits are to be paid by, the connecting district in its corporate capacity.</p> <p>7. Error—when estoppel to urge, arises. Where a party has attempted to make proof in a particular way and objection to such proof has been interposed and sustained, the party making such objection cannot thereafter contend that it was error not to have required the proof to have been made in the manner it was so attempted to be made,</p> <p>8. Recovery—when, cannot be complained of. Where a recoverylias been obtained upon a theory of liability which imposed a lesser burden upon the defendant than the correct theory would have imposed, there is no cause for complaint on appeal.</p> <p>9. Measure or damages—when erroneous instruction upon, constitutes harmless error. Where an instruction is subject to criticism in not properly stating the correct measure of damages, yet if the jury has been repeatedly instructed upon the correct measure of damages, the error is deemed to have been cured.</p> <p>10. Declaration—when, sufficient to sustain judgment. A judgment will be sustained by a declaration which contains one good count to which the evidence is applicable and the judgment responsive.</p> <p>'Reporters’ Note. In this case the court calls attention to the fact that witnesses, in giving their testimony, referred to various maps and plats, and the record, while it contains such maps and plats, is not made to show the portions of such maps and plats to which the witnesses from time to time referred. The court in this connection says : “ It is the duty of court and counsel during the conduct of a trial to preserve an intelligible record of the proceedings so that a court of review may, from such record, be able to understand and apply the evidence of the witnesses.” This statement in the opinion appears by way of criticism rather than as an adjudication, but it is suggestive of a point which we believe novel in this state, namely, where the record is in such condition and the references to maps and plats, not shown in the record, are material to the testimony of the witnesses, can a judgment be reviewed with reference to the sufficiency of the evidence to support the verdict and judgment ? Is not the principle the same as where the bill of exceptions does not purport to contain all the evidence, and should not the court presume absolutely that the verdict and judgment of the trial court was correct upon the facts ?</p>

<p>1. Payment—burden of proof to establish. The burden to prove payment is upon the party pleading it, and the mere fact that such a party has shown a payment to the other party, does not conclusively establish that such payment was made and received upon the particular obligations in suit, but such question is to be determined, as a matter of fact, from all the facts and circumstances in evidence.</p> <p>2. Remittitur—when, cures action of jury in disregarding instruction. Where the jury has disregarded an instruction and rendered a verdict inclusive of a particular amount excluded by such instruction, a remittitur of such amount effectually cures such improper action of the jury.</p> <p>8. Instructions—when, may ignore defenses. Instructions are not erroneous where they ignore a particular defense not supported by any evidence in the record.</p> <p>4. Conduct op counsel—when, ground for reversal. Held, in this case, that frequent, voluntary statements by a party, of incompetent matters, coupled with the action of his counsel in repeatedly attempting in the face of sustained objections to elicit information in regard to such matters, is ground for reversal. (See reporters’ note.)</p>

<p>Action of assumpsit. Appeal from the County Court of Sangamon County; the Hon. George W. Murray, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>1. Non-joinder—how, should be pleaded. Where it is not patent upon the record, as by the declaration of the plaintiff, that there is a non-joinder of a party defendant as partner, it should be pleaded in abatement, and the question cannot be raised for the first time upon appeal.</p> <p>S. Declaration—when copy of instrument need not be filed with. It is only essential that the plaintiff shall file with his declaration a copy of the instrument upon which the action is predicated; a document purely evidentiary is not such an instrument.</p> <p>3. Judgment—how, may be entered against party doing business under partnership name. In such a case a judgment is not erroneous which is rendered against a defendant in the partnership name under which he transacts his business.</p> <p>4. Remarks oe counsel—when, will not be reviewed. An assignment of error based upon alleged prejudicial remarks made by counsel in his argument to the jury, will not be considered where the language complained of is not preserved in the bill of exceptions.</p>

Proceeding in County Court by non-resident conservator to obtain removal of lunatic’s estate. Appeal from the Circuit Court of Tazewell County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the May term, 1903.

<p>1. County board—power of, to contract. The county board has power to contract with a physician to render, by the year, medical service to such persons as the county is liable to supply with such aid.</p> <p>3. WORDS and phrases—function of “ such.” The word “ such,” where it appears to perform no function in the sense in which employed, may sometimes be construed to refer to some omitted antecedent or consequent and such antecedent or consequent supplied by construction.</p> <p>3. Construction—general rule of. It is a general rule of construction that where a contract is made in performance of a statutory obligation and is susceptible of two interpretations, that construction will he given which is in accord with, and in furtherance of the statutory obligation in question.</p> <p>4. Construction—general rule of. The cardinal principle in the law of construing contracts is to arrive at the intention of the. parties, and in order to accomplish this end a word, if necessary, may be excluded or altogether disregarded.</p> <p>5. Medical aid—construction of resolution of county board providing for the ■rendition of'. A resolution set out in the opinion in haec verba is construed and held to impose upon the official county physician an obligation to render medical and surgical aid to residents of a particular township not having money or property to pay therefor, and also to render such aid to the inmates of various designated institutions.</p>

Action commenced before justice of the peace. Appeal from the , Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1903.

Action 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, 1903.

Action on the case for personal injuries. Error to the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 19J3.

<p>Action of debt upon recognizance. Appeal from the County Court of Edgar County; the Hon. Waltee S. Lamon, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>1. Plea in abatement— when, does not lie. A plea in abatement is not a proper plea in a proceeding for partition.</p> <p>3. Lis pendens—when, does not appear. A proceeding for partition does not become Ms pendens so as to constitute another suit pending until all parties named as defendants therein have been served with summons (or voluntarily appear).</p>

Action on the case for malicious prosecution. Appeal from the Circuit Court of Clark County; the Hon. James W. Craig, Judge, presiding. Heard in this court at the November term, 1903.

Action on the case for personal injuries. Appeal from the Circuit Court of Montgomery County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the November term, 1903.

<p>Contest’upon account of ■ administrator in Probate Court. 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>

<p>Action of assumpsit. Error to the Circuit Court of Ford County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the November term, 1903.</p>

Action on the case to recover value of horses killed. Appeal from the County Court of Sangamon County; the Hon. George VV. Murray, Judge, presiding. Heard in this court at the November term, 1903.

Contested claim against deceased’s estate. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1903.

Action commenced before justice of the peace. 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>Action on the case under Dram-Shop A'ct. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>1. Contempts—classification of. Contempts are either direct, such as are offered to the court while sitting as such, and in its presence; or constructive, but tending by their operation to obstruct, embarrass or prevent the due administration of justice.</p> <p>2. Contempts—power of court to punish. The power of court to punish for contempt is inherent, but is subject to the limitations imposed by constitution and statute.</p> <p>3. Contempts—power of court to punish. A court has power to punish an act which is a contempt, notwithstanding such act may, likewise, constitute a statutory crime, and notwithstanding, further, the respondent may be indicted for the same offense.</p> <p>4. Contempt—when proceedings in, are not in violation of state constitution. It is not in violation of section 10 of article 2 of the state constitution to enter a rule upon a respondent to answer to a criminal contempt, nor is a conviction for such a contempt, based upon affidavits, a deprivation of the constitutional privilege of respondent to meet his witnesses face to face.</p> <p>5. Jury trial—right to, in prosecution for criminal contempt. A respondent who is under prosecution for a criminal contempt in soliciting a bribe, while serving as a juror, is not entitled to a trial by jury.</p> <p>6. Jurisdiction—when question of, cannot be raised in contempt proceeding. Where the respondent voluntarily appears in open court in response to a rule to show cause, he thereby gives the court full jurisdiction over his person, and cannot for the first time upon .appeal question a judgment against him.</p> <p>7. Information—when objection to, for duplicity, cannot be raised. An objection charging an information with duplicity cannot be raised for the first time upon appeal.</p> <p>Reporters’ Note. A full collection of note? upon the law of con-tempts, both civil and criminal, is contained in our several supplements to Starr & Curtis’s Annotated Illinois Statutes. (See ¶ 55, pp. 398, 399, Supplement of 1902, and ¶ 18, p. 164, Supplement of 1903.)</p>

<p>1. Debtor and creditor—how status of, created. A person cannot make himself the creditor of another without that other’s consent.</p> <p>2. Finding of court—when, not disturbed. The finding of a judge to whom a cause has been submitted for trial without a jury, is entitled to as much weight in controverted matters of fact as the verdict of a jury, and it will not be set aside by an appellate tribunal unless manifestly against the weight of the evidence.</p>

<p>1. Interlocutory order—vihat is an. An order entered by the Circuit Court upon appeal from the County Court refusing to pass upon the merits of objections to a final account and finding that such account was not a proper account and ordering that other accounts be filed, is not a final and appealable order.</p> <p>2. Administration act—section 1% construed. This section of the Administration Act, relating to appeals from county courts in probate matters, applies only to'final orders, or orders final in their character, and which finally determine the matter in controversy.</p>

<p>1. Foreclosure—when chattel mortgagor cannot maintain trover for alleged wrongful. A chattel mortgagor cannot maintain trover against his mortgagee for an alleged illegal foreclosure where, with full knowledge of all the facts and without objection or protest, he has accepted the surplus arising from the alleged wrongful sale.</p>

<p>1. Verdict—when, not disturbed. The jury are the sole judges of the credibility of the witnesses, and where there is nothing in the record showing that they were influenced in their verdict by passion or prejudice, the Appellate Court is slow to disturb the judgment upon the ground that such verdict is not responsive to the evidence.</p> <p>3. Fraud—when evidence of collateral, is incompetent. Where fraud is the basis of a defense to a written instrument, it is not competent, in support thereof, to show alike fraud committed upon another not connected with the suit, where it does not appear that the facts and circumstances are admitted and an intent to defraud denied, and where there is no offer to show a general scheme or plan to defraud the public by the means alleged to have been practiced in the particular instance.</p> <p>3. Negligence—when, will not preclude defense of fraud. While the law requires of all parties the exercise of reasonable prudence in the business of life, and it does not permit one to rest indifferent in reliance upon the. interested representation of an adverse party, still there is a certain limitation to this rule, and as between the original parties to the transaction, where it appears that one party has been guilty of an intentional and deliberate fraud, by which, to his knowledge, the other party has been misled or influenced in his action, he cannot escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable diligence and care.</p>

<p>1. Motion—what is a sufficient. A mere motion to set aside a judgment made within the judgment term and entered of record is sufficient to preserve the jurisdiction of the court over such judgment, notwithstanding the motion was oral and unaccompanied by a statement of grounds therefor. •</p> <p>2. Motion—when, deemed pending. A motion made at one term is continued by virtue of a general order entered at the term within which it was made, continuing all pending causes; such 'a motion, likewise, would stand continued by virtue of statute and without such general order.</p> <p>8. Motion to set aside default—when, subject to review. A motion to set aside a default is addressed to the sound legal discretion of the court and unless it appears that such discretion has been wrongfully and oppressively exercised, a court of review will not interfere.</p> <p>4. Trial—when, premature. A trial of the merits of a cause is improper and premature where the plaintiff refuses to participate therein and the case stands upon plaintiff’s declaration and defendant’s pleas; under such conditions the court should order the cause dismissed for want of prosecution.</p>

Action of trespass for assault and battery. Error to the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the November term, 1903.

<p>Action of assumpsit. Appeal from the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>1. Sidewalk—duty of municipality with respect to. While it is true that a municipality has a discretion in determining how much of a street shall be devoted to the use of, horses and vehicles, and is not bound to prepare and maintain in a reasonably safe condition for travel the full located width of the street, yet, if a hole is so near to the travelled path, although outside thereof, that combined with the ordinary accidents of travel it is liable to result in injury to passers-by while driving, riding bicycle, or walking, such municipality would be liable for injuries resulting.</p> <p>2. Sidewalk—right of passer-by to assume safe condition of. Where a person travelling along a street does not know, and has no reason to believe, that it is out of repair, he has a right to assume that the municipality has performed its duty to keep at least the portion thereof devoted to travel in a reasonably safe condition of repair, and where a municipality has exercised its discretion and determined to devote less than the full located width of the street to travel, the portion lying between such part and the remainder should in some way be so indicated as to be prominent to a person using the street.</p> <p>3. Cause of action—when, joint. Where an injury is the result of the neglect to perform a common duty resting upon two or more persons, although there may be no concert of action between them, the party injured may have his election to sue all parties owing the common duty, jointly.</p> <p>4. Notice—when municipality deemed to have, of condition of sidewalk. Where a defect in a sidewalk has existed for a long time, the municipality or other person whose duty it is to remedy such defect, is presumed, in the exercise of ordinary care, to have had notice thereof.</p> <p>. 5. Motion to instruct—when, should not be granted. A motion to instruct peremptorily should not be allowed, unless the evidence with all the inferences which the jury might reasonably draw therefrom is insufficient to sustain the verdict.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the City Court of Mattoon; the Hon. Lapsley C. Henly, Judge, presiding. Heard in this court at the November term, 1903.

<p>1. Husband—when, incompetent as witness. It is an established rule of evidence that facts obtained by one spouse in confidence from the other cannot be testified to in a court of law.</p> <p>2. Marital relation—when, loill not operate to exclude testimony. Neither by statute nor by the common law is the husband or wife precluded from testifying in a suit between strangers, to facts coming to knowledge by means equally accessible to any person not standing in the relation of husband and wife.</p> <p>3. Condition of health— m;7io may testify to. Persons, not experts, who have had opportunities for knowing the facts to which they testify, are competent- to give evidence as to condition or state of health.</p> <p>4. Arguments of counsel— when, proper. It is the privilege of any advocate in his argument to the jury to make such deductions as he thinks the facts justify, and a wide latitude is permitted in this re-' spect.</p> <p>5. Arguments of counsel—when, improper. Where an advocate states as facts matter pertinent to the issue and not in .evidence, he violates his duty and exceptions may be taken on the other side which may be good ground for new trial or for reversal.</p>

<p>1. Verdict—when, not disturbed. Where there is contrariety in the evidence and the plaintiff’s claim is supported by evidence, it is for the jury to decide as to the credibility of the plaintiff’s witnesses, and the verdict will not be disturbed upon, appeal as being against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Cross-examination—when document may be read upon, for purposes of impeachment. A paper which has been shown to a witness, read by him, and which he admits to have signed, may, within the discretion of the court, be permitted to be read upon his cross-examination where it contains statements contradictory of the testimony given by him upon the stand.</p> <p>8. Impeachment—how objection that foundation for, has not been laid, should be made. An objection of this kind must b'e specific. In this case the foundation was laid for impeachment by certain persons who were not called, but another person was called, and the court treated the matter as a variance between the foundation laid and the actual impeachment, and applied the general rule that all variances must be specifically pointed out in the objection,</p> <p>4. Impeachment—when, proper, notwithstanding the witness practically admits the malting of eontradietory statements. It is competent to show the contradictory statements of a witness, where, upon laying the foundation therefor, his answer was indefinite, uncertain and evasive and not more than a partial admission.</p> <p>6. Witness—when, cannot be corroborated by his own previous statements. Where a witness has been sought to be impeached by proof of statements contradictory of his testimony, it is not competent to prove another statement by him made prior to the contrary statements and consistent with his testimony upon the trial, where such evidence is not offered for the purpose of showing that such witness when he made such contradictory statement was influenced by a motive prompting him to make a false statement or by any motive non-existent at the time of the trial, or that his contradictory statement was a falsification of recent date; nor is the rule different where the statements so sought to be proved were given in evidence under oath at a coroner’s inquest.</p> <p>6. Instruction—when, though correct, may be properly refused. Where the substance of an instruction is contained in others given, it may be refused, though correct in itself, without the commission of error.</p> <p>7. Assignment of error—function of. An assignment of error on the record is essential to support a contention that any particular action of the trial court was erroneous.</p>

<p>Action on the case for death caused by alleged wrongful act. 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>

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>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>

Action commenced before justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, 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. Philip Stein, 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. Philip Stein, Judge, presiding. Heard in this court at the March term. 1903.

<p>1. Questions of law—when, deemed waived. Questions as to whether the plaintiff in an action on the case for personal injuries was guilty of contributory negligence, and as to whether his injury was the result of the negligence of a fellow-servant, are deemed to have been waived as questions of law, where the defendant caused the trial court to submit such questions to the jury as questions of fact.</p> <p>2. Remarks of trial court—when, ground for reversal. Where counsel upon cross-examination is directing his questions to matters pertinent and material, a remark as follows: “It is just as important as it is to ask him what he had for breakfast,” is, in a close case, ground for reversal.</p> <p>S. Conduct of counsel—when, cannot he complained of. An appellant will not be heard to complain of improper language and conduct on the part of opposing counsel, where his own counsel has been guilty of like improprieties.</p> <p>4. Assumed risk—what, within the doctrine of. Where a servant knows, or by the exercise of ordinary care should have known of the master’s negligence, subjecting him to risks or dangers in the course of his employment, he assumes such risk and cannot recover for injury caused thereby unless there is some special circumstance-shown, as that he acted in obedience to an order of the master or that there was a promise on the part of the master to remedy the defect complained of, or perhaps in some other cases. In view of this law, therefore, the ensuing instruction, which the court holds states a correct proposition of law, should not have been given in this case: “The court instructs the j ury that it is a rule of law that the servant assumes the ordinary risks or dangers incident to'his employment, but you are further instructed that risks or dangers, if any, which are caused or occasioned by the blaster's negligence are not ordinary risks or dangers of the servant’s employment which he assumes within the meaning of the above rule.”</p> <p>5. Preponderance of evidence—when instruction upon, is not erroneous. An instruction upon this subject which tells the jury that the preponderance of the evidence is “not alone determined by the number of witnesses,” is not erroneous as telling the jury absolutely that such preponderance is to be determined by the number of witnesses testifying, but clearly implies that the number of witnesses is to be considered in determining upon which side such preponderance lies.</p> <p>6. Fellow-servant—when negligence of, does not preclude recovery. Where there is evidence in the record which tends to show negligence on the part of the master, independent of any act of a fellow-servant, a recovery for the plaintiff may be sustained if such negligence of the master was an efficient cause of the injury, notwithstanding the negligence of a fellow-servant may have contributed thereto.</p> <p>7. Instruction—right of court to refuse, which contains a correct abstract proposition of law. Such an instruction, though correct in its statement of the law, may be refused by the court without the commission of error. .</p> <p>8. Instruction—right of court to refuse, which substantially repeats another instruction given. Such an instruction, though correct in its statement of the law, may be refused by the court without the commission of error. ■</p> <p>9. Instructions—practice of asking great number of. Where appellant’s counsel has asked, and the trial court, at his instance, has given a great number of instructions, the Appellate Court will consider such fact in connection with any error which may have been committed by the trial court in ruling upon such instructions, and will, in some instances, where a slight error has been committed, overlook the same in view .of such fact.</p> <p>10. Verdict—when, set aside on appeal. Where a verdict in an action on the case for personal injuries is clearly and manifestly against the weight of the evidence, the Appellate Court will, upon appeal, reverse and remand the cause.</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>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>1. Secondary evidence—what competent as, where original instrument is incompetent because of unauthorized alterations therein. Where the court has held that a recovery cannot be predicated upon the original instrument because of unauthorized alterations therein, but may be based upon proof of the .contract in question by the unchanged duplicate of such original instrument held by the other party, and where such unchanged duplicate is not produced by such party upon due notice, then it is competent to introduce an office copy made from such original instrument prior to its unauthorized alteration.</p> <p>3. Building contract—construction of a particular. Where, by the terms of a building contract, a contractor agreed •“ to furnish and erect all structural iron, cast and ornamental iron, including all field riveting, drilling * * * according to plans and specifications prepared by the supervising architect,” such plans and specifications do not become a part of the contract to such an extent as to require the contractor to do brick work and put in concrete and the like.</p> <p>3. Bill of exceptions-when motion to strike, from transcript, ivill be denied. A bill of exceptions presented to and signed and sealed by the trial judge within the time prescribed, becomes a part of the record, and will not be stricken from the transcript thereof filed upon appeal.</p>

<p>1. Instructions—when limiting number of, is not reversible error. Where the court during the trial of a cause limited the number of instructions which might be presented and more than such number were presented by the losing party and such additional instructions refused by the court, such action is not reversible error where the substance of the insLmc lions so refused was contained in other instructions given.</p> <p>3. Instructions—effect of failure to mark. The mere failure to mark instructions given or refused, as required by statute, is not ground for reversal.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of CookCounty; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>1. Sheriff’s sale—when court issuing execution has power to set aside, notwithstanding purchaser was not a party to the suit. Where a judgment by confession has been obtained, an execution issued and a sale of real estate made pursuant thereto, the court entering such judgment may, upon proper showing, cancel the certificate of sale, quash the writ of execution, set aside the sale itself, and open up the judgment, notwithstanding the purchaser was not a party to the suit, where it appeared that such purchaser made the affidavit attached to the cognovit and deposed that he was the duly authorized agent of the plaintiff in such suit.</p> <p>2. Agent—presumption as to the continuance of the authority of. Where it appears that at the inception of a transaction, an agent is authorized with respect' thereto, a prima facie presumption arises that such authority continued throughout the subsequent stages of the transaction.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Russell P. Goodwin, Judge, presiding. Heard in this court at the October term, 1902.

<p>1. Religious corporation—power of, to appoint and dismiss priest. In the absence of any law of the particular sect providing for the appointment and dismissal of its priests, the board of trustees of a religious corporation organized under the statutes of this state concerning reiigious corporations is the proper body to appoint and dismiss priests of the church owned and maintained by such corporation.</p>

<p>1. Final decree—when, proper upon dissolution of temporary injunction. Where the court upon inspection of the bill dissolves a temporary injunction, it is proper, where it appears that the bill is without equity, to, likewise, dismiss the same for want of equity.</p> <p>2. Public streets—right of public to exclusive use of. The public streets of a city are dedicated to the public for public use and li private individual cannot, by the permission of the owner of the abutting property. or by continued occupancy, acquire the right to use any portion of such street to the exclusion of the public.</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 the Branch Appellate Court at the October term, 1902.

<p>1. Consolidation of corporations—when, unauthorized. Where a consolidation of banks is made pursuant to an invalid statute, such consolidation is inoperative and void.</p> <p>2. Stockholder’s liability—when, will not he enforced. Where the defendant was a stockholder in a banking corporation organized under a special act of the legislature which imposed a stock liability equal to the amount of his stock, and such corporation subsequently is sought to be consolidated with another banking corporation, such special stock liability will not be enforced in an action against such supposed consolidated corporation where it appears that such attempted consolidation was void.</p> <p>3. Stockholder’s liability—when, will not be enforced. Where a person was the owner of stock in a banking corporation organized under special charter, which subsequently changed its name, pursuant to. the act of June 16, 1887, such person becomes relieved of any special stock liability imposed by the special charter of the corporation in which his stock was originally held, inasmuch as the provisions of such law of 1887 becomes substituted for such special charter.</p> <p>4. Stockholder’s liability—when, arises. A special stockholder’s liability accrues at the time the cause of action arises against the corporation and not at the time judgment is rendered against it.</p>

<p>1. Depositions— when failure of witnesses to sign, will not reverse. Where depositions have been taken before a master in chancery and have been filed with the court, the mere fact that they were not signed by the witnesses will not avail upon appeal, where no objections to the report were taken before the. master and no exceptions thereto were filed in the trial court. (Dorn v. Ross, 177 Ill. 225, followed.)</p>

<p>1. Promissory note—what does not establish want of consideration for. Held, from particular evidence, that want of consideration for the note in suit was not established.</p> <p>2. Want of consideration—what essential to establish. A promissory note constitutes a deliberate acknowledgment of a valid indebtedness for an adequate consideration, and the defendant in order to show a want of 'consideration therefor, must establish such defense by a preponderance of the evidence.</p> <p>3. Want of consideration— burden of proof to establish. Where a claim is made against a deceased’s estate upon a promissory note duly executed by the deceased, the burden of proof is upon his administrator to show that no debt exists.</p> <p>4. Agent—duty of, to keep books. It is the duty of an agent to keep and preserve true and correct accounts between himself and his principal and to furnish such principal with detailed and itemized statements of receipts and expenditures.</p> <p>5. Instruction—must not be argumentative. The ensuing instruction is argumentative, and, therefore, properly refused : “ The jury are further instructed that in passing upon the question whether or not James Dunn, at the time of his death, was indebted to William Ward, they have a right to consider the financial condition of the two named persons at or about the time such supposed indebtedness was incurred, if the same has been shown by the evidence, and also whether or not said James Dunn was a person prompt to pay his debts, prudent, careful and not desirous of being in debt, if the same has been shown by the evidence.”</p>

<p>Foreclosure proceeding with intervening petition upon which relief was granted. Error to the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>Proceeding to foreclose. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Proceeding to foreclose. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Proceeding to remove tax deed as cloud. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>1. Chattel mortgage—what invalidates. If by any arrangement, express or implied, a mortgagee permits a mortgagor to continue in the sale of the mortgaged goods, for his benefit, the mortgage will be invalid as against attaching or execution creditors.</p> <p>2. Chattel mortgage—what establishes fraud in. A chattel mort•gage to be in fraud of creditors must appear to have been given by the mortgagor and received by the mortgagee with a fraudulent intent; if, however, such mortgage secured debts to others than such mortgagee, yet if such mortgagee was acting as the agent of such other creditors, his fraud will be deemed their fraud.</p> <p>3. Chattel mortgage—what sufficient fraud to invalidate. A chattel mortgage is wholly void if the consideration therefor is exaggerated with fraudulent intent.</p> <p>4. Instruction—when error in giving, is harmless. Where an instruction is given to the jury which is not predicated upon any evidence in the case, the giving of such instruction is not error which will reverse where it appears from a special finding of the jury that such instruction was in fact disregarded by them.</p> <p>5. “ The evidence”—defined. The phrase “the evidence,” as used in an instruction, means all the evidence.</p> <p>6. Fraudulent conveyance—where, so deemed under Attachment Act. A conveyance made to hinder and delay creditors is a conveyance “ to hinder, delay and defraud ” such creditors within the meaning of the Attachment Act.</p> <p>7. Borden of proof—where, rests. The question as to where the burden of proof lies is determined from the pleadings and where the defendant merely filed the general issue, it is proper to instruct the jury “ that the burden.of proof is upon the plaintiff and it is for him to prove his case by a preponderance of the evidence,” notwithstanding the defense actually introduced under such plea was one of fraud—in other words, an affirmative defense.</p>

<p>Criminal prosecution for violation of election law. Error to the Criminal Court of Cook County; the. Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904.</p>

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

<p>1. Receiver—tohat pleading essential to appointment of. The appointment of a receiver must be predicated upon some pleading praying affirmative relief; a mere petition is not such a pleading, nor is an answer not made a cross-bill.</p> <p>3. Receiver—what shotoing essential to appointment of. A receiver should not be appointed unless the showing made establishes a reasonable probability that the party asking such receiver will ultimately prevail in the cause.</p> <p>3. Receiver—when appointment of, in foreclosure suit, is umoarranted. A receiver should not be appointed in a foreclosure proceeding where it does not appear that the trust deed provides for the appointment of a receiver and that the mortgaged premises are insufficient security for the debt.</p> <p>4, Receiver—who may question appointment of. One who is interested in lands sought to be foreclosed and who is a party to the suit in which such foreclosure is sought, may properly question by appeal an order appointing a receiver in such suit.</p>

<p>1. Judicial notice—what, not taken of. Judicial notice will not be taken of the laws of a sister state, and when it is con tended that the laws of such, state differ from the laws of this state, such difference must be proven as a matter of fact.</p> <p>2. Sister state—presumption as to laio of. In the absence of proof it will be presumed that the law of a sister state is the same as the law of this state.</p> <p>8. Sister state—how law of, must be shown in bill of exceptions. Where it has been sought in the trial court to prove the law of a sister state by the introduction of portions of the reports of the decisions of the courts of that state, the opinions relied upon, or excerpts therefrom, must be set forth in haec verba in the bill of exceptions, in order that such proof may be before an appellate tribunal for review.</p> <p>4. Servant—when, may rely upon promise to repair. It is not essential that the servant injured should have personally complained of his place of work; a complaint by whomsoever made .is sufficient, and a promise made in the presence and hearing of such servant will inure to his benefit and he may rely thereon.</p> <p>5. Assumed risk—when question of, is waived, as one of law. Where this question has by motion for a peremptory instruction been raised as one of law, it cannot be argued as one of law where subsequently to the overruling of such motion the party who made the same has caused such question of assumed risk to be submitted to the jury as one of fact.</p> <p>6. Corporations—when, liable for act of agent. Where two corporations are in law partners for the erection and maintenance of billboards, the act of the agent of one of such corporations is in law the act of each of such corporations.</p>

<p>Attachment proceeding. Appeal from the Circuit Court of Cook County; the Hon. Bichard S. Tothill, Judge, presiding. Heard in this court at the March term, 1908.</p>

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

<p>Appeal from order overruling motion to dissolve injunction. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1903.</p>

Proceeding by stockholder against banking corporation for discovery, receiver and other relief. Appeal from the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in this court at the October term, 1003.

<p>1. Verdict—when, not set aside. A verdict must not necessarily be set aside because the testimony of the plaintiff is contradicted by two unimpeached and respectable witnesses.</p> <p>2. Verdict—what essential to set aside. The Appellate Court will not set aside a verdict upon a question of fact unless it is clearly and palpably against the weight of the evidence.</p> <p>3. Custom—when, irrelevant. A custom is not relevant where it tends to vary the express terms of a contract.</p> <p>4. Former opinion—how far, hinds Appellate Court. The opinion filed by the Appellate Court in one hearing of a cause is binding upon it in a subsequent hearing of the same cause as to everything which was determined in such earlier hearing.</p> <p>5. Measure of damages—where coal is not delivered pursuant to contract. In such a case a party having the right to call for delivery from time to time need not go into the- market and purchase all the coal required at one time but may go into such market and purchase the same from time to time as the demands of his business may require, and so fix the measure of his damages.</p>

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

<p>1. Subrogation—who not entitled to. If a third person, having no interest in mortgaged premises, voluntarily pays the indebtedness secured by the trust deed, he is not entitled merely by such payment to be subrogated to the rights secured by such trust deed.</p> <p>2. Foreclosure decree—when, should he entered, notwithstanding release of trust deed. Where a person makes a loan to a party at the time insane, but not knowing such fact of insanity, and at the request of the borrower pays a previous encumbrance secured by trust deed and causes such trust deed to be released, he may, notwithstanding such second trust deed is void, have a foreclosure of the first trust deed upon the theory that the release of the sapae was a mistake of fact—no rights of bona fide purchasers or encumbrancers having intervened.</p>

<p>1. Slander—when word “thief” is ac.tionable. The word “ thief,” in its ordinary acceptation, imputes the crime of larceny, and is actionable per se; but if the word be spoken of the plaintiff in relation to a past act or transaction known to the hearers and which was not larceny or indictable as a crime, the use of such word is not actionable.</p> <p>2. Slander—when words used may not constitute. When the words spoken are susceptible, in connection with other facts in evidence, of a meaning other than the imputation of a felony, it is a question for the jury whether such words were intended to impute felony.</p> <p>3. Slander—what evidence competent to show that words used were not. Evidence is competent to show how the hearers of the words used understood them, and where the innuendo is that the word “ thief” was intended by the defendant to impute larceny, and the evidence is to the contrary, the word is not actionable and the plaintiff is bound by his innuendo.</p> <p>4. Slander—when charge of conspiracy is not actionable. A statement made to the effect that husband and wife were engaged in a conspiracy to cheat and defraud, is not slanderous in so far as it charges conspiracy.</p> <p>5. .Conspiracy—who cannot be guilty of. Husband and wife are in law one person and cannot, between themselves only, be guilty of or indicted for conspiracy.</p>

Bill to construe will and for other relief. Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1902.

<p>1. Ownership op vessel—what competent to prove. A copy of the last enrollment of a vessel, duly certified by the collector of customs, is competent evidence to establish prima facie the ownership of such vessel. (Merchants Navigation Co. v. Amsden, 35 Ill. App. 307, followed.)</p> <p>2. Admissions—who may bind eoiporation by. "When an officer of a corporation, while acting within the scope of his authority makes an admission, the corporation is bound thereby.</p> <p>3. Admissions— who may bind corporation by. - Generally, a corporation is not bound by the declarations of its vice-president, but, in the absence of the president and while acting in bis stead in the business of the corporation, such officer may and can bind the corporation.</p> <p>4. Admissions—what does not destroy competency of, to bind corporation. The mere fact that an officer does not make the admissions sought to be proved in the presence of the plaintiff, or in the presence of one speaking for the plaintiff, is immaterial so far as their competency as against the corporation is concerned.</p> <p>5. Ownership —effect of proof of, as tending to shoio control. Where a prima facie case of ownership of a vessel is established, it at least shifts the burden of proof to show that such vessel was not under the control of the persons so established prima facie as owners.</p>

Action commenced before justice of the peace. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1903.

<p>Prosecution for failure to pay award in bastardy. Error to the Criminal Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the March term, 1903.</p>

<p>1. Reversing and remanding order—effect of failure to file, within two years. When neither party flies a certified copy of the order of reversal and remandment within two years from the time of the making of the final order in the appeal, the cause is deemed to have been abandoned, and an injunction which previous to such order of reversal existed therein, necessarily becomes void and. of no effect after the lapse of such period.</p>

<p>1. Mechanic’s urn—contract essential to. A contract which fixes the time of completion anil the time of making final payment within the period fixed by statute, is essential to support a claim for mechanic’s lien.</p> <p>2. Mechanic’s lien—what- bill for, should allege. A bill seeking a mechanic’s lien is insufficient to sustain a decree therefor which does not set up a contract of the character essential as shown in the first paragraph of this syllabus, and both allegations and proof must appear to sustain such a lien.</p>

<p>1. Release—when fraud in obtaining, cannot be relied upon in court of laio. Fraud in the execution of an instrument may be shown in á court of law; but where the fraud consists in fraudulent representations as to collateral facts or as to the nature or value of the consideration for the instrument, equity must be resorted to to reform or set aside the instrument.</p> <p>2. Release—when replication to plea of, is not sufficient, A replication to a plea setting up a release is not sufficient where its material averment is that such release was signed in reliance upon alleged false and fraudulent representations that such instrument was nothing more than a receipt for a specific sum, inasmuch as such averment is not the equivalent of an allegation that the plaintiff would not have signed such instrument had he known that it was something more than a simple receipt. Such a replication, likewise, to be good should aver facts from which it can be inferred that the plaintiff's signature was obtained by means of a trick or device by which he was led to sign a paper which he did not intend at the time to execute. Such a replication, likewise should show that such signature was obtained by fraud without negligence upon the part of the signer.</p> <p>3. Accord and satisfaction—when, will be sustained. An accord and satisfaction of a disputed claim for a sum less than that demanded by the claimant will be sustained.</p>

<p>Attachment proceeding. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>Action commenced before justice of the peace. Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>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 March term, 1903.</p>

<p>Action of assumpsit for breach of contract. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>Error to the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>Action of assumpsit upon promissory note. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>Mechanic’s lien proceeding. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

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

<p>Criminal prosecution for malicious mischief. Error to the Criminal Court of Cook County; the Hon. Willard M. MoEwbn, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

Action on the case for injury to real property. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding Heard in the Branch Appellate Court at the March term, 1903.

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>1. Forcible detainer—who may maintain. Where the relation of landlord and tenant exists, the landlord may, in a proper case, maintain forcible detainer to recover possession of the demised premises.</p> <p>3. Forcible detainer—not barred by pendency of ejectment suit. The pendency of an action of ejectment is not a bar to the maintenance of an action of forcible detainer with respect to the same premises, as the former involves the question of title and the latter the right to possession.</p> <p>3. Landlord and tenant—how relation of, created. To establish the relation of landlord and tenant it is not necessary that the words “ lease ” or “ let ” or “ rent ” should be used; any language plainly meaning or implying that the one was holding from or under the other is sufficient.</p> <p>4. Landlord’s title—tenant estopped to deny. A tenant is estopped to deny his landlord’s title, until there has been a surrender of possession.</p> <p>5. Homestead—yfhen widow estopped to set up. Where a widow claims an estate of homestead in lands occupied by her husband at the time of his death as a tenant, such widow cannot, as against the landlord of her husband, set up an estate of homestead in the demised premises without first delivering up possession.</p> <p>6. Delivery of deed—when circumstantial evidence concerning, is incompetent. It is only where the question of the delivery of a deed is doubtful or debatable that it is competent to show surrounding circumstances, such as the grantor’s treatment of the lot as his own.</p>

<p>Mechanic’s Hen proceeding. Error to the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

Proceeding by stockholder against corporation for accounting and other relief. Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of La Salle County; the Hon. Harvey M. Trimble, Judge, presiding. Heard in this court at the April term, 1903.

Proceeding to reform insurance policy, and for other relief. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the October term, 1903.

<p>Action on the case for injury to personal property. Appeal from the Circuit Court of Iroquois County; the Hon. Robert W, Hilscher, Judge, presiding. Heard in this court at the April.term, 1903.</p>

<p>Action of assumpsit. " Appeal from the Circuit Court of Kankakee County; the Hon. John Small, Judge, presiding. Heard in this court at the April term, 1903.</p>

<p>Mechanic’s lien proceeding. 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>

<p>Proceeding to enjoin, among other things, the dispossession of complainant from certain mine property. Appeal from the Circuit Court of Jo Daviess County; the Hon, James S. Baume, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>1. Property rights—jurisdiction of court to settle, in divorce proceeding. In a divorce proceeding the court has jurisdiction to adjudicate upon the property rights between husband and wife.</p> <p>2. Return nulla bona—when, npt essential to maintenance of bill in aid of execution. Where a bill is filed to set aside alleged fraudulent conveyances of land in order that a levy may be made thereon, a return nulla bona is not essential, notwithstanding the conveyances in question may not have been made by the judgment debtor.</p> <p>3. Entitlement of case—when, cannot be objected to. If, in a suit to revive a judgment or to recover upon a former judgment, the title is irregular, such objection must be raised in that suit and cannot subsequently be interposed in a proceeding in aid of an execution, and the estoppel so to object is binding as well upon his voluntary grantees as upon the judgment debtor himself.</p> <p>4. Sheriff’s sale— when, does not constitute satisfaction of judgment. Where a party bids in land at a sheriff’s sale but does not pay any money and the sheriff does not indorse the executions satisfied, the same are not deemed to have been satisfied and further proceedings thereon are not precluded.</p> <p>5. Express trusts—when, need not be in writing. Notwithstanding the Statute of Frauds requires express-trusts to be evidenced by a writing, it is not so as against creditors seeking to set aside conveyances as in fraud of their rights.</p> <p>6. Attorney—when, may testify to conversations with client. An attorney may testify to conversations between himself and client occurring, likewise, with and in the presence of the attorney for the adverse party.</p> <p>7. Decree—when, not reversed for admission of incompetent evidence. Where, disregarding incompetent evidence admitted, there is enough competent evidence to sustain the decree, the same will not be disturbed on appeal.</p> <p>8. Bill in aid of execution—what property may be reached by. Real estate owned by a judgment debtor may be reached in such a proceeding notwithstanding it may have been acquired by improper methods.</p> <p>9. Parties—who not necessary, to bill in aid of execution. Persons who have parted with their title to the land involved in such a proceeding are not necessary parties thereto.</p> <p>10. Costs—taxation of. The taxation of costs in a chancery proceeding is'a matter of discretion with the trial court, and such discretion, in the absence of abuse, will not be interfered with on appeal.</p>

<p>The decision of the court in this case will be found in 101 Ill. App. 610. The judgment entered at the time of the rendition of such decision was subsequently reversed by the Supreme Court solely because of an insufficient finding of facts. The ensuing merely corrects the former judgment entered in the cause.</p>

<p>1. Demurrer—what admitted by. While a demurrer admits the truth of each of the specific allegations of fact contained in the bill, yet it does not admit the general legal conclusions drawn therefrom by the pleader.</p> <p>2. Mining corporation—when, not doing business in Illinois within the meaning of section 26 of General Incorporation Act. A mining corporation having no properties and doing no mining or smelting business in this state is not doing business within this state within the meaning of the statute referred to, merely by opening an office within the state and placing a safe and other furniture therein for the convenience and use of the secretary and treasurer of the company, notwithstanding stock certificates may have been issued from such office, the books kept, and directors meetings, etc., held there.</p> <p>3. Foreign corporations—comity with respect to. When a corporation chartered under the laws of a foreign state enters this state for the purpose of transacting business, it comes by virtue of the comity existing among the states, and our courts recognize it as a legal entity, capable of contracting and being contracted with, of suing and being sued, and to exercise generally such powers as are granted it by its charter, subject to such liabilities, restrictions and control as may be prescribed by our own public policy and statutory regulations. If, in the exercise of these functions, crimes are committed, penalties incurred, or contractual liability ignored, redress may be had in the courts of this state, and in such cases jurisdiction does not depend upon whether the corporation is doing business generally in this state, but attaches in the one case to enforce a public law and in the other to compel the observance of a contract.</p> <p>4. Foreign corporation—when courts of this state will not appoint receiver for. Courts of equity in this state will not take jurisdiction of a controversy relating to the internal management of a foreign corporation at the suit of a stockholder when no question of public concern is involved, and especially is this true where all of the property of such a corporation with which it carries on the business for which it was created is located in the state granting its charter.</p> <p>5. Ultra vires acts—defined. An. ultra vires act is one beyond the express or implied powers of the corporation.</p> <p>6. Ultra vires acts—what are not. It cannot be said that matters which pertain to the manner in which stock is issued, the price paid or to be paid therefor, the manner in which such stock is voted, and the use which is made of the money arising from the sale of stock, are acts ultra vires.</p> <p>1. Jurisdiction—what does not confer. Where the question of jurisdiction is one pertaining to the subject-matter of the controversy, the entry of an appearance or the filing of a demurrer or an answer will not confer jurisdiction; but where the question of jurisdiction pertains to the subject-matter, rather than to the parties, the court may at any time, upon its own motion, interpose the objection of want of jurisdiction.</p>

Proceeding commenced before justice of the peace. Appeal from the Circuit Court of Peoria County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1903.

<p>1. Contributory negligence—when presumption of, arises as against one driving upon street in bad, condition. Where such a person was familiar with all the conditions of such a street and knew the danger of attempting to drive upon it and had driven thereon before, it is incumbent upon him, in the event of injury, to overcome the presumption of contributory negligence arising from his conduct in exposing himself to such known danger.</p> <p>2. Contributory negligence—what does not establish, as a matter of law. Mere knowledge of the defects of a street or sidewalk will not, as a matter of law, defeat a recovery by an injured person who is himself free from negligence; but where such a person exposes himself to a known danger and is injured thereby, his injury is presumptive evidence of negligence upon his part.</p> <p>3. Street—when duty to provide barricades for, does not exist. Where a public street is in a dangerous condition, a failure to provide barricades therefor does not confer a right of action in favor of an injured party who knew the exact character and location of the dangerous condition and voluntarily goes into such danger.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Kane County; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>1. Nuisance— what essential to constitute. To constitute the condition or use of premises a nuisance, some legal right, public or private, must be violated and it must work some material annoyance, inconvenience or injury, either actual or implied, from the invasion of the right.</p> <p>2. Nuisance—what is private. A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.</p> <p>3. Landlord—ivhen, not liable to tenant for injury resulting from nuisance. A landlord is not liable to his tenant for injury resulting to his personal property from a nuisance existing on the demised premises at the time of the letting, nor for injury to such property by defects existing therein at such time, unless the same are latent and the landlord has been guilty of fraud, actual concealment or deceit in such letting.</p> <p>4. Caveat '¡melon—application of rule of, as between landlord and tenant. This rule applies to a contract of letting, and the landlord, in the absence of an express agreement with the tenant, is not bound to make repairs and is not liable for damages resulting from the premises being out of repair. If, however, there are hidden defects causing danger to persons or property, which a careful examination would no.t disclose but which are known to the landlord, and the latter fails to reveal them to the tenant, the landlord will become liable to the tenant for dainages actually resulting from such concealed defects.</p> <p>5. Demised premises—no implied contract as to fitness. There is no implied contract upon the part of the landlord that demised premises are fit for the purpose for which the lessee requires them.</p>

<p>Information in nature of quo warranto to test validity of dram-shop license. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

Action on the case for personal injuries. Appeal from, the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>1. Mechanic’s lien—when payments will not operate to defeat. Payments made in violation of sections 5 and 23 of the Mechanic’s Lien Act are not regarded as rightfully made, and so will not operate to defeat a claim for lien.</p> <p>2. Mechanic’s lien—contract essential to. A verbal contract to be sufficient to entitle the claimant to a mechanic’s lien must provide fol final payment within a year from its date.</p> <p>3. Exceptions—power of court to hear, not previously filed as objections before the rnaster. The court should not hear exceptions to the master’s report which have not previously been filed before the master as objections to such report and at the same time refuse to re-refer the case to the master to take additional proof which might be curative of such additional exceptions.</p>

Action for penalty commenced before justice of the peace. Appeal from the County Court of Cook County; the Hon. Orrin N, Carter, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>1. Bill of exceptions—when, properly signed and sealed. A bill of exceptions is properly signed and sealed, by the judge who presided at the trial thereof, in the county for which he was regularly judge, notwithstanding the case was presided over by him while acting as judge of another county.</p>

Intervening petition in proceeding for partnership accounting, etc. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>Action on the case for injuries to real property. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>