Volume 114 — Illinois Appellate Court Reports

Judgment by confession, in which leave to plead was granted. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>1. Joinder of counts—what, proper in case. In an action on the case it is proper to join counts based upon the statutory liability imposed by the Dram-Shop. Act and a common law count charging the defendant with an unlawful conversion of property.</p> <p>2. Exemplary damages—when instruction upon, in action under Dram-Shop Act is improper. An instruction which permits the jury to award exemplary damages in an action instituted under the Dram-Shop Act, is improper where it does not furnish the jury with any rule or guide for so doing.</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 March term, 1903.

<p>Action on the case for deceit. 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>Action of debt upon replevin bond. Appeal from the Circuit Court of Cook County; the Hon. James S. Baume, 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 LaSalle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the October term, 1903.

<p>Distress for rent. Appeal from the County Court of La Salle County; the Hon. William H. Hinebaugh, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>1. Judgment—when, not reviewed up on the facts. Where an action at law is tried by the court without a jury and no exception to the finding or to the judgment is preserved by the bill of exceptions, and a motion for a new trial being interposed, no exception to its overruling is preserved, the question as to whether the issues of fact have been correctly decided or whether the proof supports suchfinding and judgment is not presented to the Appellate Court for its decision, and the insertion of such exceptions in the abstract does not cure the omission in the bill of exceptions.</p> <p>3. Judgment—when, not reviewed upon appeal. Where a cause has been tried by the court without a jury and no propositions of law presented, the question as to whether the law has been'properly applied to the facts is not presented for review.</p> <p>3. Rulings upon evidence—when, not open to review. In a case tried by the court without a jury, if the defeated party does not except to the finding or the judgment, he acquiesces therein and is held to have waived every error occurring during the trial which he could have asserted against the finding and judgment if he had duly excepted thereto, including the rulings upon the admission and rejection of evidence.</p> <p>4. Motion fob new trial—when overruling, not subject to review. Where the court overrules a motion for a new trial and the defendant does not except thereto, he acquiesces in the ruling and cannot review the action of the court in so overruling such motion.</p> <p>5. Record proper—when, prevails over bill of exceptions. Where the question in dispute is as to the amount of the ad damnum named in the declaration, the record proper will control over the recitals of the bill of exceptions.</p>

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

<p>Contempt proceedings. Appeals from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>Criminal prosecution for conspiracy in violation of Anti-Trust Act. Error to the Criminal Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.. Heard in this court at the October term, 1903.</p>

<p>Divorce proceeding. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1903.</p>

Action on the case for personal injuries. Error to the Superior Court-of Cook County; the I-Ion. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1803.

<p>Motion to set aside execution, levy and sale. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1903.</p>

Proceeding for injunction, discovery and accounting. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the October term, 1903.

<p>Proceeding for injunction, discovery and accounting. Appeal from the Superior Court of Cook County; the Horn Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1903.</p>

Proceeding in chancery to set aside sheriff’s sale, etc. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903-

<p>1. Answer—when allegations of, taken as true. Where in a mandamus proceeding the allegations of the answer are not denied by the replication, such allegations are taken as true.</p> <p>2. Civil Service Act—power of city to abolish offices. While the Civil Service Act does not purport to confer upon the municipality the power to abolish or create offices, yet such powers are derived from other statutes not abrogated by such act.</p> <p>3. Civil Service Act—right to discharge employees under, without hearing. Where the office filled by a civil service employee is, in good faith, abolished, such employee may be discharged without a hearing and cannot complain of any arrangement made by the city for the performance by others, already in the classified service, of the duties of such abolished office.</p> <p>4. Public official—when performance of duty by, will not be reviewed by the courts. Where the performance of a duty by a public officer is discretionary and depends upon the exercise of his judgment, as to its necessity or propriety, the court will not interpose to determine ■ how or when he shall exercise the power.</p>

<p>1. Pecuniary loss—w7ioi evidence competent to show. It is competent in an action on the case for death caused by the alleged wrongful act of the defendant to prove that the deceased, notwithstanding he was forty-eight years of age, contributed to his father’s support, and how much he was in the habit of so contributing.</p> <p>2. Pecuniary loss—when instruction upon, is erroneous. An instruction upon this subject as follows: “The court instructs you that in an action such as this if the plaintiff recovers at all, the actual pecuniary loss to the next of kin is the sole measure of recovery. Every item and element of damages claimed must be shown by a preponderance of the evidence in the case and every item and element of damages which in the judgment of the jury is not sustained by a preponderance of the evidence should be disallovyed. The law does not permit the jury to base a- verdict upon any mere speculative or unproved view of what might or might not happen in the future. No amount or dollar can be given by the jury that is not based upon the evidence admitted by the court; that must be based upon the evidence actually in the case and not upon statements of counsel not supported by the evidence, if any such statements have been made. The law does not allow a recovery for anything whatever for court costs, attorney’s fees nor witness fees, nor any expenses of the suit or funeral, nor any loss sustained by the deceased himself, or anything for doctor’s bills, medicines, nursing, or attendance, nor anything whatever for any mental pain or suffering of the next of kin,—” is erroneous, and its giving, coupled with the exclusion of proof which tended to show pecuniary loss, virtually amounted to a declaration by the court to the jury that they should exonerate the defendant from liability.</p>

<p>Bill of review. 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>1. Civil service employee—when, may be discharged. A civil service employee of the city of Chicago may be discharged by it when such discharge is made in good faith and in the interest and from motives of economy.</p>

<p>1. Chattel property—relative rights of claimants to. A person purchasing chattel property from an administrator, who sold the same by virtue of authority of court, acquires a superior title to another who purchases such property at an unauthorized chattel mortgage sale made under a void chattel mortgage, notwithstanding the person so purchasing from the administrator leaves such chattel property with the person of such administrator as bailee.</p> <p>3. Chattel mortgage—when, should be foreclosed. Possession of mortgaged chattels must be taken by the mortgagee within a reasonable time after default, and a failure to do so destroys the lien of the mortgagee as against subsequent purchasers and attachment or judgment creditors. What is such a reasonable time is to be determined by the situation of the parties and the special circumstances of each case; but where both parties reside in the same county, within a few miles of each other, and three days are suffered to pass after default without any effort to take possession, the delay is unreasonable and the burden of proof is upon one claiming under such mortgage to establish a reduction to possession within the time required by law.</p>

<p>Garnishment proceeding, etc. Appeals from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, and the Hon. Abner Smith, Judge, respectively, presiding. Heard in the Branch Appellate 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. Joseph E. Gary, Juc!.,e presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>Action on the case for slander. 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.</p>

<p>1, Assignments oe error—when, deemed waived. Assignments of error not argued are deemed waived.</p> <p>3. Replevin bond—duty of constable in taking. A constable in taking a replevin bond is required, among other things, to use the best means of forming a correct estimate of the value of the property sought to be replevied, and the law in requiring him to ascertain such value clothes him with ail reasonably necessary power, and if he neglects his duty .in the premises he and his sureties upon his official bond are liable.</p> <p>3. Replevin bond—when constable does not perform his duty in taking, A constable in taking a replevin bond must not rely upon the statement contained in the affidavit for replevin; nor should he take and approve such a bond without attempting to ascertain the value of the property sought to be replevied.</p> <p>4. Action of debt—form of verdict and judgment in. In an action of debt upon a penal bond the verdict should find the amount of the debt and damages separately, and the judgment in such case should be for the debt, to be discharged on the payment of the damages sustained, but an error with respect to the form of such a verdict is technical and will not reverse.</p>

Action of assumpsit upon benefit certificate. Appeal from the Superior Court of Cook County; the H011. Philip Stein, Judge, presiding. Heard in this court at the October term, 1903.

<p>Appeal from interlocutory order granting injunction. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1904.</p>

Action on the case for personal injuries. Error to the Circuit Court of Cook County; the Hon. F. A. Smith, Judge, presiding. Heard in this court at the October term, 1903.

<p>Proceeding to restrain maintenance of nuisance, etc. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1903.</p>

Action on the case for death caused by alleged wrongful act. Error . to the Circuit Court of Cook County; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1903,

<p>1. Judicial notice—what taken of. The Appellate Court will not close its eyes to the common knowledge of all men who have in late years watched the character of the improvements made in the business center of Chicago and to the fact that many of such buildings are erected under long term leases.</p> <p>2. Trustees—power to make 99-year lease. Where a will gives to trustees power to lease the premises of the testator upon condition that any lease made be reasonable, held, in view of the particular facts shown with respect to the desirability of making a 99-year lease and the consents of the adults interested in the premises in question, that sucli trustees have the power to execute such a lease, and this notwithstanding persons not in esse may, upon the happening of certain contingencies, become interested in such premises.</p> <p>8. ’Equity—jurisdiction of, to enlarge terms of trust created by will. Equity, in this state, has jurisdiction upon a proper showing to enlarge the powers conferred upon trustees appointed by will, but such enlargement will not be made except from necessity and then no further than the circumstances of the particular case urgently require.</p>

Action on the case for conspiracy, Appeal from the Circuit Court of Cook County; the Hon. John L, Healy, Judge, presiding. Heard in this court at the October term, 1903,

<p>Action on the case for death caused by alleged wrongful act. Error to the Superior Court of Cook County; the Hon. Jonas Hutchinson, 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 Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1903.

<p>1. Joint liability—what evidence competent under plea of. In a plea denying joint liability filed by the partner of one who has signed the firm name to a promissory note by which money was raised for the individual use of the partner so signing the same, it is competent, in order to show notice that the proceeds of such note were not to be used for firm purposes, to introduce in evidence a contract made as a part of the note transaction to which the plaintiff in the action was a party, which tended to show the use to which the proceeds of such note were to be applied.</p> <p>2. Cross-examination—when, improperly restricted. Where, upon the direct examination of a witness a material conversation is elicited, it is error to refuse to permit the cross-examiner to bring out all of such conversation so far as it pertained to the subject-matter testified to upon direct.</p> <p>3. Partnership note—when one partner not liable upon, to the endorsee. Where the endorsee of a note executed in the name of a firm knew that the proceeds of such note were to be used by one member of such firm individually and not for firm purposes, he cannot recover excex>t as against the partner so deriving the benefit from such note (the other partner of such firm not having assented thereto).</p> <p>4. Trading partnership—what constitutes. A firm engaged in the real estate, loan and insurance business which, likewise, buys and sells real estate on its own account, is prima facie a trading corporation.</p> <p>5. Cross-errors—when, essential. An appellee cannot complain of the rulings of the trial court in the absence of cross-errors.</p>

Proceeding to enjoin municipality from entering into contract, etc. Appeal from Circuit Court of Cook County; the Hon. Edward O. Brown, Judge, presiding. Heard in this court at the March term, 1004.

<p>Mandamus proceeding. Appeal from the Circuit Court of Cook County; the Hon. Frahk Baker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>Mandamus proceeding. Appeal from the Circuit Court of Cook County; the Hon. Charles H. Bishop, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>1. Executor-—when duty of court to grant letters to. It is the duty of a court of probate to grant letters testamentary to the executor named in the will if he or she is “ legally competent” and accepts the trust.</p> <p>3. “ Legally competent ”—definition of, ivith respect to duty of court to issue letters testamentary. These words mean that the person named as executor must be of legal age, of sound mind and memory, and untainted by conviction for a crime which renders the convicted person infamous, „</p>

<p>Action on the case. Appeal from 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>Contempt proceeding. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903,</p>

<p>1. Blacksmith shop— when, cannot be. maintained. Held, under a particular ordinance, that no blacksmith shop can be maintained on any street in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, unless a majority of the property owners according to frontage on both sides of the street for the length of the block in which the blacksmith shop is to be located, consent thereto. (Harrison v. The People, 195 Ill. 466, distinguished.)</p> <p>3. Irreparable injury—when, established. Special damage and irreparable injury are established where the removal of a building would injuriously affect the property of the complainant and expose the buildings of such complainant to a greater danger fi;om fire, would increase the rate of insurance charged upon such buildings and would depreciate their market and rental value.</p> <p>3. Opinion evidence—when, competent. Opinion evidence is competent to show the probable consequences of threatened acts, where, under the existing circumstances, no better evidence could be offered.</p> <p>4. Issues—wlven, waived. While it is irregular to take a reference to and proceed before a master in chancery without a formal joinder of issues, yet the irregularity is waived where the complaining party neither objected to the reference nor to the proceedings before the master and where all parties to the cause treated the issues as properly formed, and it does not appear that any injury resulted.</p> <p>5. Amendments—power to permit, in chancery. By virtue of section 37 of the Chancery Act the court has discretion to permit a complainant to amend his bill, even to the extent of filing an amended bill based upon new grounds, repugnant to and inconsistent with the grounds for relief relied upon in the original bill.</p> <p>6. Sworn bill —necessity of verifying amendments to. Ordinarily, amendments to a sworn bill should be verified; but the rule is not rigid and unbending, and it is only in cases where an injunction issues upon a bill and it becomes necessary to amend the same, that the injunction will not be continued in force unless the chancellor can see from the sworn amendment that such an amendment should be allowed without prejudice to the injunction.</p> <p>7. Threatened violation—when bill alleges. A bill of complaint charges a threatened violation of the blacksmith shop ordinance of the city of Chicago where it alleges that the defendants intended and were about to move a certain blacksmith shop to and upon a particular block and there “ will continue to use such building as a blacksmith shop,”</p>

<p>1. Trespasser—when person is not. Held, under the particular facts of this case, that the plaintiff was not a trespasser.</p> <p>3. Passenger—who is not. A laborer employed by a railroad company to work in connection with a train of oars under an arrangement by which he was to be taken to his work in the morning and conveyed home every night in such cars free of charge, is not a passenger nor entitled to protection as such, but is to be regarded as the servant of the company during the entire interval and bound in that capacity to render aid if necessary in promoting the passage of the train in either direction. But to such a person the railroad company owes the duty to exercise ordinary care and to notify him of the lowness of the viaduct and the danger liable to arise therefrom to a man riding on the top of one of its box cars, unless such danger was so obvious and apparent as to dispense with the necessity of notice.</p> <p>3. Opinion—when question calls for. An objection tó a question as to whether or not there was any room in a car for other men besidts those who got in, is properly sustained in that the question calls for a matter of opinion; the proper form would have been, was there any vacant or unoccupied space in the car.</p> <p>4. Riding upon top of cab.—when, not contributory negligence. It will not be presumed as a matter of law that the train employees are unauthorized to permit a person to ride upon the top of a railroad car.</p> <p>5. Burden of proof—to establish hnoioledgeof danger. The burden of proof is not upon the plaintiff to establish that his intestate did not have knowledge of the want of space between a viaduct and the top of the car upon which he was riding to permit him to stand upon the running board of such car and safely pass beneath such viaduct.</p> <p>6. Death caused by wrongful act—io7io entitled to recover for. The administrator of the deceased is the only person entitled to recover damages for the death of such deceased caused by the wrongful act of the defendant.</p> <p>7. Verdict—when, not excessive. In an action for death caused by alleged wrongful act, a verdict of $5,000 is not excessive where it appears that the deceased at the time of bis death was about eighteen years of age, was proficient in the English language, had attended night schools and was “ a very good boy,” and left him surviving a brother, eight years of age, and a sister, aged twenty-two, who lived with his mother, to whom he gave all his earnings.</p>

Action on the case for death caused by alleged wrongful act. 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. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate 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. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>1. Resulting trust—what does not create. A voluntary conveyance cannot be held to create a resulting trust for the grantor.</p> <p>3, Express trust—what essential to establish. An express trust between the grantor and grantee of land, when the grantee is to hold the land in trust, or is to reconvey to the grantor on a certain contingency, is invalid under the Statute of Frauds unless evidenced by some writing signed by the grantee.</p> <p>3. Declaration of trust—when, valid,. A written declaration of trust made after a conveyance of real estate, upon a parol trust agreement, is valid and enforceable.</p> <p>4. Fraudulent conveyance—idhat is not a. Where the title to land is received in trust but such trust is not evidenced by a writing as required by the Statute of Frauds, nevertheless an execution of such trust by a reconveyance is valid and not fraudulent as against creidtors of the grantee.</p> <p>5. Conveyance—when, will be set aside at the instance of a creditor of the grantor. Where the owner of real estate has permitted the title thereto to remain in another, and such other has, by reason of the holding of such title, been permitted to create a legal obligation, such real estate will be subjected to the payment of such legal obligation notwithstanding its reconveyance to the true owner thereof.</p>

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

Proceeding to restrain interference with business of painting signs, etc. Appeal from the Superior Court of Cook County; the Hon. Axel Chytkatjs, Judge, presiding. Heard in this court at the March term, 1904.

<p>1. Usury—when homestead loan association guilty of. Where at the time of a loan there was a by-law of the association providing for the payment of premiums in monthly installments, but none dispensing with the requirement of offering its money for sale in open meeting or providing for the loan of its money at a fixed rate of interest or premium, and the money in the particular case was not offered for sale in open meeting and the premium was arbitrarily fixed, and the same, together with interest, was in excess of the regular interest rates fixed by law, the defense of usury is established. The offering of such money in open meeting cannot be dispensed with otherwise than by law.</p>

Action of assumpsit upon insurance policy. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the October t.erm, 1903.

■ Motion to vacate judgment entered by confession. Appeal from the Superior Court of Cook County; the'Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October term, 1903.

<p>Proceeding to enforce stockholder’s liability. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1903.</p>

Action of assumpsit upon benefit certificate. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1903.

<p>Proceeding to restrain interference with steam supply, etc. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1903,</p>

Action of assumpsit upon simple contract. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1903.

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1903.</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 the Branch Appellate Court at the March term, 1903,

<p>1. Res adjudicata—rule of. The rule is that where the parties and the subject-matter of the litigation are the same, all matters that could have been, as well as all matters that actually were, put in issue and determined in a former suit, are presumed to have been so put in issue and as to them the rule of res adjudicata applies.</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 March term, 1903.

<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 March term, 1903.</p>

<p>Debt upon bond. Appeal from the Circuit Court of Cook County; the Hon. Owen P. Thompson, Judge, presiding. Heard in the Branch Ap'pellate Court at the March term, 1903.</p>

<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 the Branch Appellate Court at the March term, 1903,</p>

Actión on the case for death caused by alleged wrongful act. 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, 1908.

<p>■Action of replevin. Appeal from the Superior Court of Cook County; the Hon, Jonas HuTchinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903,</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, pr-esi ling. 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. Owen P. Thompson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.</p>

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Axel ChytraTJS, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903,</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 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 the Branch Appellate Court at the March term, 1903.

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

<p>1. Partner’s liability—extent of, after death. The estate of a deceased partner is liable for merchandise sold to the firm of which he was a member, during his life, but not delivered until after his death.</p> <p>2. Judgment order—proper form of, upon allowance of claim in court of probate. Where there is no contest between individual and partnership creditors, the doctrine of marshalling assets does not apply, and a judgment in favor of a partnership creditor, that the claim be paid in due course of administration, is proper.</p>

<p>1. Specific performance—when, will not he awarded. A contract within the Statute of Frauds will not be specifically enforced where the defense of such statute is relied upon.</p>

<p>1. - New promise—when admission of evidence of, cannot be assigned as error. The admission of evidence of a new promise made after a discharge in bankruptcy cannot be complained of as incompetent under the pleadings, where the defendant by the introduction of contradictory evidence treated the question as to whether or not a new promise was made as properly in issue.</p> <p>2. Discharge in bankruptcy—when claim is releasedby. The words “fiduciary capacity,” as used in section 17 of the Bankruptcy Act, are to be given a restricted interpretation so that only such claims as arise from a defalcation while acting in a fiduciary relation giving rise to a technical trust, are released by a discharge in bankruptcy.</p> <p>3. Embezzlement—what essential to constitute. To constitute embezzlement, the misappropriation must have been intentional and fraudulent.</p>

<p>1. Mineral—effect of conveyance of. The conveyance of coal in place, beneath the surface, operates to create a distinct and separate estate in the grantee, entirely independent of the rights of the owner of the surface; and where the conveyance of such coal is made, by necessary implication there is reserved to the grantor the right and title to all and every other estate in such land, including the estate and rights in such land with respect to other minerals.</p> <p>2. TROVER—token, lies. Trover will lie for the wrongful conversion of mineral separated from the earth by artificial causes.</p> <p>8, Trover—when, does not lie. Trover is not an appropriate action to recover the value of mineral upon deposit in the earth.</p> <p>4, Measure of damages—in action for wrongful conversion of mineral. Where a defendant under a grant from the plaintiff has removed certain coal, and in removing such coal has necessarily, likewise, removed what is known as “ iron pyrites,” the measure of damages in an action for the conversion of such iron pyrites is the value of the coal at the mouth of the pit, less the cost of the digging of such iron pyrites and of separating it from merchantable coal.</p>

<p>Action of trespass. Appeal from the Circuit Court of Macon County; the Hon. William G-, Cochran, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>Proceeding to restrain collection of judgment. Appeal from the City Court sf Mattoon; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>Proceeding for accounting. Appeal from the Circuit Court of Macon County; the Hon. Edward P, "Vail, Judge, presiding. Heard in this court at the November term, 1903.</p>

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

<p>1. Electricity—duty of persons using. Electricity is universally recognized as a most dangerous and subtle agency, and the law requires that persons and corporations engaged in the business of supplying it, shall exercise a degree of care and caution commensurate with the danger involved.</p> <p>2. Electric wires—duty to insulate. A company maintaining wires for the purpose of supplying light and power must exercise the utmost care at places where persons may reasonably be anticipated to go for work, pleasure or business, to prevent injury, and that at such places the company is bound perfectly to insulate and protect its wires from contact, and to maintain them in that condition.</p> <p>3. Ordinary care—ivhen question of exercise of, becomes one of law. This question becomes one of law when the evidence in a case, together with all reasonable inferences to be deduced therefrom, is insufficient to support a verdict.</p>

<p>Action of assumpsit. 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>

<p>I, Continuance—when overruling motion for, cannot he assigned as error. Where neither the motion nor the affidavit filed in support of a motion for continuance are contained in the bill of exceptions, and where it does not appear from such bill of exceptions that any exception to the ruling of the court was taken, error cannot be assigned upon the overruling of the motion for continuance.</p>

Action on the case for injury to personal property. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers. Judge, presiding. Heard in this court at the November term,1903.

<p>1. Contract—law determinative of validity and construction of. The validity and construction of a contract is determined by the law of the place where it is made, while the law of the forum governs as to the time, the mode and the extent of the remedy.</p> <p>2. Contract—tohen separate instruments are construed together as one. A deed and agreement made at or about the same time, between the same parties, and in relation to the same subject-matter, must be held to constitute but one instrument, and will be read and construed together,</p> <p>3. Chahpertous—when contract is not, A contract is not champertous notwithstanding it contains an agreement to defray the expenses of the suit in question, where the consideration for the payment of such expenses is other than out of the claim in suit.</p>

<p>1. Lien—what does not create right to. Where a village notifies the owners of certain premises located therein that such premises constitute a nuisance, and are, in fact, a nuisance, and directs such owners to abate the same, and where such owners fail so to abate such nuisance and the authorities of such village in consequence proceed to abate the same and in so doing expend a sum of money to the benefit of such premises, a lien against such premises does not arise in favor of such village.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this c. urt at the November term, 1903.</p>

<p>Action on the case. 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>

<p>Claim against deceased’s estate. 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>

<p>Action of assumpsit. Error to the County Court of Sangamon County; the Hon. Georg-e W. Murray, Judge, presiding. Heard in this court at the November ferm, 1903.</p>

<p>Separate maintenance proceeding. Appeal from the Circuit Court of Schuyler County; the Hon. Thomas N. Mehan, Judge presiding. Heard in this court at the November term, 1903.</p>

<p>1. Will—what does not constitute. A paper not attested by two witnesses in the presence of the testatrix is not a will.</p> <p>3. Will—who competent as witness to. A person is a competent witness to testify to the execution of a will where he was a “credible” witness within the meaning of the statute at the time he attested such will.</p> <p>3. Will—who competent as witness to. A witness to a will is not disqualified merely by reason of the fact that such will appoints him as executor thereof.</p> <p>4. Will—xohen, will not be set aside for incompetency of attesting icitness. Where a bill filed to contest a will does not aver that the attesting witnesses were incompetent and does not set up facts which amount in substance to such an averment, the will will not be set aside upon such ground.</p> <p>5. Witness— burden to establish incompetency of. The burden is upon the party objecting to the competency of a witness to show his incompetency.</p> <p>6. Witness—when objection to competency of, should be made. Objection to the competency of a witness should be made at the time heps called as a witness and before he is examined in chief, and when not made at such time objection to his competency is waived.</p>

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

<p>Proceeding to enforce contribution. Appeal from the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the November_term, 1903.</p>

<p>Action of forcible entry and detainer. Appeal from the Circuit Court of Vermilion County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>1. Abstract—right to affirm for insufficient. Held, that the court in this case would have been justified in affirming the judgment because of the insufficiency and inaccuracy of the abstract filed by the appellant.</p> <p>2. ¡Peremptory instruction—when, properly refused. A peremptory instruction is properly refused where there is competent evidence in the record which tends to support the cause ^f action relied upon.</p> <p>3. Assignment of error—when, does not lie. Error cannot be assigned for the failure of the plaintiff to make proof which he attempted to make, but which he was prevented from making because of the objection made by the complaining party and sustained by the court.</p> <p>4. Fraud and deceit—when action for, may he instituted. Case may be brought for fraud and deceit in falsely representing and selling land as unencumbered without first discharging such encumbrance.</p>

<p>1. Contract—how nature of, determined. The question as to whether a particular instrument is a lease or a conditional sale is a question of law to be decided by the court.</p> <p>3. Conditional sale—ivhat is a. A particular instrument set out in the opinion held to constitute a conditional sale rather than a lease, inasmuch as it appeared that its real object was to cover a sale in the guise of a lease and thus preserve a secret lien.</p> <p>3. Demand—when, essential to maintenance of replevin. Where possession of the thing sought to be replevied was lawfully obtained, a demand is essential to the maintenance of the action.</p>

<p>Proceeding to impeach decree for fraud. Appeal from the Circuit Court of Shelby County; the Hon Truman E. Ames, Judge, presiding. Heard in this court at the November term, 1903.</p>

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.

Proceeding commenced before justice'of the peace. Appeal from the Circuit Court of Adams County; the Hon. J. C. Broady, Judge, presiding. Heard in this court at the November term, 1903.

<p>Action of trover. Appeal from the Circuit Court of Edgar County; the Hon. H. Van Sellar, Judge, presiding. Heard in this court at the May term, 1903.</p>