Volume 115 — Illinois Appellate Court Reports

<p>Forcible entry and detainer. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>1. Motion for peremptory instruction—how, should be made. A motion to exclude the plaintiff’s evidence, and to instruct for the defendant, must be made in writing, and where not so made, its refusal cannot be urged as error upon appeal.</p> <p>3. Special findings—when, properly refused. Where special findings refer to mere evidentiary matters, they are properly refused.</p> <p>3. Special finding—when refusal of, improper. The refusal in an action on the case for personal injuries of a special finding as follows : “ Were the usual duties of the engine crew and the plaintiff such as to bring them into habitual association, so as to promote proper caution in respect to their mutual safety,”— held, reversible error.</p> <p>4. Fellow-servants—rule of, defined. Under the rule relating to fellow-servants as established in this state, two tests of the master's liability exist: first, where they are directly cooperating with each other in a particular business in the same line of employment; and, second, where their duties are such as to bring them into habitual association so that they may exercise a mutual influence upon each other, promotive of proper caution.</p>

<p>1. Instructions—when error in, will not reverse. Notwithstanding error may have intervened in the rulings of the court upon instructions, yet a reversal will not follow where it is clear from a considera" tion of the entire case that no harm resulted to the complaining party.</p>

<p>Action of assumpsit. Appeal from, the Circuit Court of Piatt County; the Hon. William GK Cochran, Judge, presiding.</p>

<p>1. Public streets—power of municipality over. A municipality may properly make use of its streets for some other purposes than for travel, but it cannot vacate the same except as provided by law; neither can it abandon them, nor convey nor turn them over, in whole or in part, in any manner, to private persons for private use.</p> <p>2. Statute of Limitations—when, does not apply as against municipality. The Statute of Limitations cannot be successfully pleaded as against the right of a municipality to exercise governmental function or as against, one properly seeking to compel such municipality so to exercise such function.</p>

<p>1. Alibi—when evidence insufficient to establish. Held, that the evidence in this case fell short of establishing an alibi.</p> <p>2. Credibility of witnesses—when erroneous instruction upon, will not reverse. Held, that an instruction which tells the jury when they may disregard the testimony of witnesses, hut which omits the usual word “ wilful ” qualifying the word “ sworn,” though erroneous, will not reverse.</p>

<p>I. Dram-Shop Aw—what not defense to action of case brought under. It is not a defense to an action on the case brought under the Dram-Shop Act for damages resulting from the death of the plaintiff’s husband while intoxicated, for the defendants to show that such intoxication was principally caused by the sale to the deceased of liquor by one not a defendant to the action.</p> <p>3. Damages—evidence competent up>on question of, in action of case under Dram-Shop Act. In such an action the habits of the deceased as to the drinking of liquor and the effect upon him of such liquor, aro both proper subjects of inquiry by the defendants as bearing upon the question of actual damages and the loss sustained.</p> <p>3. Degree of proof—when instruction as to, is erroneous. An instruction which requires that the plaintiff should prove his case to the satisfaction of the jury, is erroneous.</p>

<p>1. Marriage—what not sufficient to annul. Held, in this case, that there was not such deception upon the part of the defendant nor such conduct upon her part as would justify a court of equity in annulling the marriage contract.</p>

<p>1. Prairie fires—scope of statute pertaining to. Section 18 of chapter 38, which prohibits the starting of prairie fires, was enacted with respect to the conditions which existed in Illinois in 1819, and does not apply to a small fire kindled back of one’s building for the purpose of destroying rubbish.</p> <p>2. Agency—what does not establish, as between husband and wife. Proof of such agency does not arise (even prima facie) from the fact of the matrimonial tie, nor from the declarations of the alleged agent.</p> <p>3. Master and servant—when, cannot be jointly sued. A master and his servant cannot be jointly sued because of the tortious act of the servant, for which the master, by reason of the doctrine of respondeat superior, is liable.</p> <p>4. Statutes—how, construed. Statutes which are in derogation of the common law should be strictly construed.</p> <p>5. Husband—when, liable for torts of his ivife. Where the wife acts aswthe agent of her husband and is negligent while in the performance of her duties, to the injury of a third person, her husband, notwithstanding section 4 of the Husband and Wife Act, is liable therefor.</p>

<p>Action of trover. Error to the Circuit Court of Champaign Count)-; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>1. Benefit certificate—wliat matter of defense to aetion upon. Where a benefit certificate is made payable “ under the provisions of the constitution and by-laws of this association,” it is not "necessary that the beneficiary suing thereon should, in order to make a prima faaie case, show in the first instance that the insured did not violate any of the provisions of such constitution and by-laws or that his death was not occasioned by any of the causes in respect to which such association was exempted from liability by the conditions or exceptions printed on the back of the certificate; these are all matters of defense, which to be availed of must be specially pleaded.</p> <p>3. General demurrer—what cannot be reached by. The fact that a particular averment in a declaration, though a material one, is argumentative, cannot be reached by general demurrer.</p> <p>j 3. Averments—when equivalents of each other. In an action upon a benefit certificate, an averment as follows: “ That the deceased after the making and delivery of the certificate and while he was an active member of the association in good standing, to wit, on the 38th day of May, 1893, came to his death,” etc., is equivalent to an averment that the deceased “ has in all things observed, performed and fulfilled all and singular the matters and things which were on his part to be observed, performed and fulfilled,” etc.</p>

<p>1. Probable cause—ivhatnot conclusive evidence of, in an action on the case for malicious prosecution. A conviction by a court of record having jurisdiction of a cause, which is subsequently reversed, is not conclusive proof of probable cause for the prosecution, where it appears that such conviction was procured by undue means, as by fraud, conspiracy, or false testimony or subornation.</p> <p>2. Malicious prosecution—ivhat gist of action for. The gist of an action for malicious prosecution is the tort charged and not the conspiracy, which is alleged as a part of the means employed in connection with the commission of the tort.</p>

<p>1. Negligence—ivhat is actionable, where several concurring causes result in injury. Negligence to be actionable need not be the sole or immediate cause of the injury, nor the nearest in point of time, if it clearly appears that (without the fault of the plaintiffj but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events.</p> <p>2. Negligence—what is actionable, where the acts of several parties concur to the injury of another. Where one is injured by the concurring negligence of two different parties, each is, and both are, liable, and they may be sued separately or jointly.</p> <p>3. Assumed risk—ivhat is not. Where a servant at the time he entered the employ of his master did not know of a particular defect from which his injury subsequently resulted, he cannot be said .to have assumed the risk unless he subsequently and prior to his injury learned of such defect, appreciated its dangerous character, and, notwithstanding, remained in the employ of his master without complaint: but where it appears that be gained knowledge of the defect, it is a question for the jury to determine whether he appreciated the danger arising therefrom.</p> <p>4. Assumed bisk—what may he considered in determining question of. In determining whether the plaintiff appreciated the danger arising from a faulty construction, his age, capacity and experience must be considered, and employees of tender years are entitled to instruction from their employers as to the particular perils which may confront them in the course of their employment.</p>

<p>1. General demurrer—when, properly overniled. A general demurrer to a bill to foreclose is properly overruled where such bill sets up an equitable cause of action.</p> <p>• 2. Demurrer—what admitted by. Where defendants demur to a bill and upon its being overruled elect to stand by their demurrer, every fact properly pleaded is admitted;, and if a cause of action is set forth the complainant is entitled to a decree.</p> <p>3. Constructive notice—when holder of trust deed not charged with. The holder of a trust deed is not charged with constructive notice of facts which did not appear of record at the time of its filing for record, notwithstanding they may have appeared of record at the time oE the granting of an extension of the time of payment of such trust deed, as, for instance, of a tax sale and tax deed which occurred and was issued in the interim between the execution of the trust deed and the extension of its time of payment.</p> <p>4. Waiver—what essential to a. No person is bound by a waiver of his rights unless it is made distinctly and with full knowledge of the rights which he intends to waive.</p> <p>5. Receiver—when appointment of, in foreclosure suit may be set aside on appeal. The act of appointing receiver in such a case is discretionary and will not be reviewed when no abuse of discretion appears.</p>

<p>1. Chattel property—when defendant has not title to. A defendant in an action of attachment has no title to chattel property where he never paid anything upon account of the purchase thereof, never had it in his possession, and where, in so far as he could, he had conveyed to another whatever title he had in said property, who, in turn, paid for such property out of his own personal funds before the levy in such attachment suit.</p> <p>2. Attachment—what title acquired by virtue of. Plaintiffs in attachment by virtue of their levy acquire.no other or greater title than the defendant had.</p> <p>3. Bill of exceptions—when estoppel to question signing and sealing of, arises. Where the appellee has stipulated that the original bill of exceptions in lieu of a copy thereof may be used by the clerk in preparing the transcript for appeal, he is estopped to say that the bill of exceptions was not signed and sealed in due time.</p>

<p>1. Verdict—when, not disturbed. The Appellate Court will not disturb a verdict where no error of law has intervened and only a question of fact is involved, as to which the evidence is contradictory.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding.</p>

<p>Proceeding to restrain collection of judgment. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Contempt proceedings. Appeals from the Superior Court of Cook County; the Hon. Jesse Holdoji, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Charles M. Walker, Judge, presiding.</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.

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.

<p>Action on the. case for illegal use of process. Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Proceeding for construction of will. Appeal from the Circuit Court of Cook County; the Hon. Richard 8. Tuthill, Judge, presiding.</p>

<p>1. Receiver—when appointment of, after foreclosure sale, not improper. The appointment of a receiver after a foreclosure sale is not improper merely because the trust deed provides that in case of default the trustee may take possession of the mortgaged premises, file a bill, and after the sale “ pay all rents that may be collected before the time of redemption expires to the purchaser at such sale,” where the terms of sale were fixed by the decree and provided that possession should be surrendered to the purchaser only at the expiration of fifteen months after the sale.</p> <p>3. Receiver—when appointment of, after foreclosure sale, proper. The fact that a foreclosure sale resulted in a deficiency is, in the absence of special circumstances, ground for the appointment of a receiver, notwithstanding there were no express words in the mortgage giving a lien on the rents and profits.</p> <p>3. Bond—adverse party entitled to, upon appointment of receiver. Where a receiver is appointed, the complainant should, in the absence of a special showing, be required to give a bond to the adverse party; a failure to require such bond is not reversible error where the appointment of the receiver was proper.</p>

<p>1. Next of kin—averment of, essential to recovery, in action on the case for death caused by alleged, wrongful act. It is essential in such an action that the declaration aver that the deceased left next of kin him surviving.</p> <p>3. Next OF kin—when averment of declaration as to, sufficient for purposes of recovery. Notwithstanding all those counts which contain the averment that the deceased left next of kin are taken from the jury by instruction, they are not so taken for purposes of reference, and even if they were, the irregularity would be cured by verdict, and likewise could not be availed of by the defendant where he has gone to the jury-treating the declaration in his instructions as though it contained such averment.</p> <p>3. Custom—when proof of , incompetent: In an action on the case, if the death of the plaintiff’s intestate was found by the jury to have resulted from a defect of a railroad track of the defendant, it is improper to show that it was the practice of other railroad companies to do as was shown the defendant had done, and that worn rails from their main tracks had been put in use in their side tracks according to the practice of other companies.</p>

<p>1. Stipulation—when client bound by stipulation of his attorney. Where the client acts upon and takes advantage of a stipulation entered into by his attorney with the attorney of the adverse party, he recognizes such stipulation and is bound thereby, notwithstanding its execution may have been unauthorized.</p> <p>2. Appeal—power of attorney to waive. An attorney in a case has an implied authority to enter into a stipulation in advance of the trial that the judgment which may be entered therein shall be final, and that no appeal or writ of error shall be prosecuted therefrom.</p>

<p>Action on the case for personal injuries. Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Collision—what Justifies fumy's finding that a, might have been avoided by the exercise of clue care upon the part of the defendant. Held, from the facts in this case, that the jury were justified in finding that the collision between a street car and a wagon which resulted in the plaintiffs injury might have been avoided by the exercise of due care upon the part of the defendant.</p>

<p>1. Judicial notice—of what, not taken. Judicial notice will not be taken of the laws of a foreign country or state, but such laws must be averred and proved like any other facts.</p> <p>2. Foreign laws—when, may he deemed part of the record. Notwithstanding the fact that the party relying upon the foreign laws did not prove the same, yet they will be considered as before the court where the master who heard the cause sets forth such laws in his report, and such report was not excepted to by the prevailing party.</p> <p>3. Franchise—when, not involved for purposes of appeal. The fact that the defense involved the question as to whether or not the plaintiff had exceeded its charter powers, does not so involve a franchise as to deprive the Appellate Court of jurisdiction to review the case.</p> <p>4. Discount of note—what not, within meaning of Hew Jersey corporation law. The purchase by a New Jersey corporation of the assets of a defunct building and loan association, with its own money, is not “ discounting bills, notes or other evidences of debt,” within the meaning of the New Jersey Corporation Act.</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Marcus ICavanagh, Judge, presiding.</p>

<p>Criminal prosecution for seduction. Error to the Criminal Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>Assumpsit upon promissory note. Error to the Circuit Court of Cook County; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Writ of error to review allowance of master’s fees. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Statute of Limitations—how question of, raised at law. At law, the Statute of Limitations cannot be interposed as a bar by demurrer to a declaration or by motion in arrest of judgment; such defense must be made by way of plea setting up the statute.</p> <p>2. Commencement of suit—what is. The issuance of a summons, at law, is deemed the commencement of the action, and is sufficient to prevent the running of the Statute of Limitations, notwithstanding it was never delivered to the sheriff for service.</p> <p>3. Slander—when declaration in, svjflcient after verdict. A declaration which charges the speaking of slanderous words in the Italian language, but which does not aver that the hearers understood the meaning of such words, is defective, but after verdict is sufficient.</p>

<p>Proceeding for injunction. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Compensation—when traction company not entitled to, xipon being compelled to lower or rebuild its tunnel. Where a traction company has constructed and maintains by virtue of an ordinance a tunnel which passes beneath a navigable stream, such right of construction and maintenance is necessarily acquired subject to the easement of navigation upon the stream, and it is not entitled to compensation where it is compelled either to lower or rebuild such tunnel to meet the changed requirements of navigation.</p> <p>2. Municipality—power of, to impede navigation. A municipality through whose territorial limits a navigable stream passes has no authority to impede the free navigation of such stream.</p> <p>3. Secretary of War—what not meddling with river within meaning of act requiring permission from. The object which Congress had in view in passing the act which prohibits any one from meddling xvith a navigable stream without first obtaining permission from the Secretary of War, was to prevent the doing of anything without such secretary’s permission which might result in obstructing navigation, and does not refer to a course of action which has for its object the removal of an obstruction to such navigation.</p>

<p>1. Highway—when municipality not liable for injuries resulting from defective. Where a road is not a city street or highway and there rested upon the city no obligation to repair it, such city is not liable for injuries resuiting from its defective condition, nobwithstanding a public official of such city may have exercised some authority with respect thereto, unless it appeared that such authority was exercised by authority of the city.</p> <p>2. Municipal officer—power of. A municipal officer can exercise only such power as is conferred upon him by law or by ordinance passed in pursuance of law, and his acts in the absence of power so conferred, do not bind the municipality. • •</p>

<p>1. Jurisdiction—when residence of defendant confers. Where nothing but the title to land is concerned and the court is called upon to act upon the person of the defendant only, a court of chancery may administer relief in any county where the defendant is found; but where the court is called upon to act directly upon real estate, it is essential to the jurisdiction of the court that the real estate be located within the territorial jurisdiction of the court.</p> <p>2. Real estate—when, “affected,’’ within meaning of statute fixing chancery jurisdiction. Where the ultimate object of a bill in chancery is to restrain a county from tearing down a public building in order that it may erect a new one in its stead, real estate is so “affected” that such proceeding can only be maintained in the county in which such real estate is located.</p>

<p>1. Circuit judge—power to hold court in county other than thaipf his election. A circuit court judge is not confined to his own circuit but has power, upon request of a resident judge, to hold court in any county in the state.</p> <p>2. Change of tenue—when judge granting, may subsequently act in a case. A judge who has granted a change of venue upon an application not formally made pursuant to statute, may, within the same term, set aside the order granting such change of venue and proceed to hear the case.</p> <p>3. Change of venue—when error in vacating order granting, is waived. Any error in vacating an order granting change of venue is waived where the party complaining of such vacation subsequently caused a re-reference to a master.</p> <p>4. Objection—e^eci in chancery of failure to interpose. Where an order is entered, a party, subsequently, to complain thereof, must have objected thereto.</p>

<p>1. • Negligence—when, cannot be imputed to employee. Negligence cannot be imputed to an injured employee who took the only way he could to go to his work—the way provided for him by his employer— arid who was not in charge of the cage used for such purpose, knew nothing of its defects, could not see the engineer nor the engine, and entered such cage in the usual and customary manner and was injured by being dropped to the bottom of a mine shaft with such rapidity that he was thrown out of the cage.</p> <p>8. Assumed eisk—ichat not. A danger not incident to the employment of an injured employee is not an assumed risk within the meaning of the law.</p> <p>3. Fellow-servants—who are not. An engineer and a coal miner are not fellow-servants where they were not at the time of the injury directly cooperating with each other, and where their usual duties did not bring them into habitual association so that they might exercise a mutual influence upon each other promotive of proper caution.</p> <p>4. Fellow-servants—burden of proof to establish relation of. The burden of proof to establish such relation is upon the master.</p> <p>5. Elevator—degree of care required in operating. While in this state it is doubtful whether a presumption of negligence arises where an employee is injured by the fall of an elevator, yet it is true that one having in charge an elevator must use great care and diligence to avoid injury to its occupants.</p> <p>6. Release—when, does not bar recovery. When an issue was made that the reiease pleaded was obtained by fraud, and there was evidence fairly tending to support such issue and the jury found against the validity of such release, the same will not bar a recovery.</p>

<p>Bill to impeach decree for fraud. Appeal from the Circxiit Court of Cook County; the Hon. Edward O. Brown, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>1. Real estate commissions—when, may he recovered. Where one person appoints another as his agent to sell real estate for a certain sum and agrees to pay him a specific sum for making a sale, and having given him a definite period in which to accomplish such sale, but before the time so given has elapsed, rescinds his contract and revokes the agency and thus prevents a sale, he is liable for the amount agreed to be paid by way of commission.</p>

<p>Action of debt upon bond. Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding.</p>

<p>1. Malicious prosecution—ivhat essential to recovery in action for. In order to recover in an action on the case for malicious prosecution, it is essential that the plaintiff prove that there was no probable cause for instituting the criminal proceeding; and the burden of making such proof is upon him.</p> <p>2. ■ Malicious prosecution—what establishes defense to action for. Where the defendant in an action for malicious prosecution before instituting the criminal proceeding in question, consulted a lawyer whose ability, fairness and integrity are not questioned, explained to him fully all the facts and- circumstances of the case and was advised to proceed, a defense is established.</p> <p>3. Probable cause—how question of, determined. While it is for the jury to determine the facts in evidence in any given case, what constitutes probable cause is a question of law.</p> <p>4. Privileged communications—how classified. Privileged communications are of two kinds: absolute and qualified. An absolute privilege is confined to cases where the public service or the due administration of justice requires that a party speak his mind freely, and no action can be maintained therefor even though the words be false and maliciously spoken. Occasions where the privilege is qualified extend to a variety of communications made in" good faith and from honest motives, upon any subject in which the party communicating has an interest or in reference to which he has a duty to some one having a like interest or duty. On such occasions a speaker is exempt from liability only so far as he speaks honestly and for some common good. (See reporters’ note.)</p> <p>5. Privileged communications—how question of, determined. Whether a communication is or is not privileged is a question of law for the court. If it is held that a privilege is a qualified one, then it is for the jury to determine whether the defendant in uttering the words was actuated by honest motives for some good or proper purpose or by a malicious desire to injure and defame the plaintiff.</p> <p>Reporters’ Note. McDavitt v. Boyer, 169 Ill. 475, will be found an interesting case upon the subject as to what are and what are not privileged communications.</p>

<p>1. Verdict—when, not excessive. A verdict of i£900 is not excessive where it appears that the plaintiff’s lip was cut through to the teeth and two of his teeth loosened; that a cut about an inch long had to be stitched; that the injury to the lip did not fully heal, and that he was otherwise injured.</p> <p>2. Verdict—when, not disturbed. A verdict based upon conflicting evidence will not be disturbed unless it is manifestly against .the Weight of the evidence.</p> <p>3. Remarks of counsel—when, will not reverse. Remarks of counsel as follows : “ The defendant railway company spares no money, no means, nothing, to defend their cases,” will not reverse where it appears that such remarks were objected to and the objection thereto sustained.</p>

<p>1. Injunction—when erroneous granting of, without notice will not reverse. Where the bill and the verification were not sufficient to authorize the granting of an injunction without notice to the defendant, yet a reversal will not follow where it appears frdm such bill as verified that had notice been given the complainant would have been entitled to the injunction granted, and where it likewise appears that no prejudice resulted from the granting of such injunction without j otice.</p> <p>3. Injunction—when, lies to restrain collection of void judgment. While, ordinarily, an injunction does nob lie to restrain the collection of a void judgment, such rule does not apply as against a garnishee, where he is threatened with several suits and files a bill of interpleader.</p> <p>3. Parol evidence—incompetent to aid record. Parol testimony is incompetent to contradict the entries in a justice’s docket ancl thus render a judgment valid which otherwise would be void.</p>

<p>1, Death— when, deemed result of intoxication. Death, within the meaning of the law, so as to render the owner of saloon premises and the keeper thereof liable to the next of kin, is deemed to have resulted from intoxication caused by such defendants, where it appears that such death was the result of the deceased’s inability to make a volun-tary effort to save himself, as, for instance, in this case, from suffocation by reason of the position in which his body had fallen,</p> <p>2. Form of verdict—when failure to give particular, not reversible error. In an action on the case it is not error for the court to fail to give to the jury a form of verdict that they may find one defendant guilty and the other not guilty; if the defendants, or either of them, desire such an instruction, they or the one so desiring it should request the giving of the same.</p> <p>3. Exclusion of evidence—when, will not reverse. The exclusion of competent evidence will not reverse unless it appears that some harm has resulted to the complaining party.</p>

<p>Action on the case for death caused by alleged wrongful act. Error to the Circuit Court of La Salle County; the Hon. Morton W. Thompson, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>1. Credibility of witness—when instruction pertaining to, is erroneous. An instruction which tells the jury to disregard the entire testimony of a witness if they believe from the evidence that such witness has knowingly testified falsely, is erroneous in two respects: first, in not permitting the jury to believe a portion of the testimony of such witness, and second, in not telling the jury that such false testimony must be with regard to some material fact or issue.</p>

<p>Criminal prosecution for libel. Error to the Circuit Court of Kankakee County; the Hon. Robert W. Hilscher, Judge, presiding.</p>

<p>1. Mortgage—when trustee has power to. A trustee has power to mortgage real estate where he is given the power to “ take charge of, manage and control the same, for the use and benefit of” a person designated.</p> <p>2. Application of money—when party dealing with trustee not lound to see to. Where one acting as trustee has been confided with the application of the money received by him in any particular transaction, the party paying such money is not bound to see to its due application.</p>

<p>Action, of assumpsit. Appeal from the County Court of Lake County; the Hon. DhWitt L. Jones, Judge; presiding.</p>

<p>Action on the case for injury to real property. Appeal from the Circuit Court of Kankakee County; the Hon. Robert W. Hilsoher, Judge, presiding.</p>

<p>1. Forfeitures—construction of contracts pertaining to. The disposition of the courts has been to construe such contracts as far as possible so as to prevent injustice and oppression, and to do this they have been, frequently compelled to 'put a construction upon such contracts which is not in harmony with the language used by the parties themselves.</p> <p>2. Forfeitures—construction of contracts pertaining to. Courts have never hesitated to hold that where the amount to be. paid was called in the contract liquidated damages, it meant penalty, where it appeared that the stipulated sum was greatly in excess of the amount that would constitute just, compensation; but where the amount to be paid is called a penalty, the weight of authority seems to be that it must be so treated and recovery limited to actual damages.</p>

<p>1. Tender—when, not essential to recovery. Where suit is brought upon an insurance policy and the defense interposed was that a settlement had been made, which settlement was, according to the plaintiff’s claim, obtained by fraud, it is not essential to the plaintiff’s right to maintain an action that a tender of the sum paid in such settlement be made; it may, upon the other hand, be retained and applied upon the total amount claimed in the suit.</p> <p>2. Settlement—what not affected by way of. Where the amount due upon an insurance policy is admitted, a settlement for a sum less than the entire claim will not be sustained.</p>

<p>1. Benefits—'when member entitled to. Under a by-law as follows : “If a member lose both feet, both hands or both eyes, thereby becoming totally disabled,” a member need not have actually had both feet or both legs severed from his body in order to recover; it is enough if they be so badly injured that they cannot perform the functions intended for them.</p> <p>2. By-laws—when member bound by. Where a member of a fraternal benefit society expressly agrees to be bound by by-laws subsequently enacted by the society, he is concluded thereby unless they are unreasonable.</p> <p>8. New trial—when, essential. Where in an action upon a benefit certificate the action of the court in directing a verdict is held erroneous, yet an affirmance will not be awarded even though it appears that the trial court improperly sustained a. demurrer to a special plea of the appellee, inasmuch as the plaintiff is entitled to traverse such special plea and put the defendant upon proof of its truth.</p>

<p>1. Bill of exceptions—token, does not present case for review. Where it appears by the bill of exceptions that a written motion for a new trial, specifying reasons therefor, was filed, but there is nothing in the bill of exceptions showing what such reasons were, a review cannot be had inasmuch as all points not mentioned in such written motion are deemed to have been waived, and without knowledge of its contents the court cannot say what reasons were relied upon, and what reasons were waived.</p> <p>2. Bill of exceptions— how, construed. A bill of exceptions is the pleading of the party alleging the exception, and like any other pleading, is to be construed most strongly against him.</p> <p>3. Verdict—when, not disturbed. A verdict will not be disturbed unless it is so manifestly against the evidence that the trial court should have set it aside.</p>

<p>Proceeding for separate maintenance. Appeal from the Circuit Court of Peoria County; the Hon. Theodore N. Green, Judge, presiding.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilsqher, Judge, presiding.

<p>Distress for rent. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>1. Agency coupled with interest-ivlien, exists. Where a had an interest in certain crops and authorized his tenant to sell the entire crop, to collect the proceeds and apply his portion thereof in satisfaction of an obligation due from him to such tenant, an agency coupled with an interest is created.</p> <p>3. Agency coupled with interest—right to revoke. An agency coupled with an interest cannot be revoked at the will of the principal.</p>

<p>1. Propositions of law—when, not required. Propositions of law are not essential where a cause is disposed of without a trial.</p> <p>3. Garnishment—what will not defeat. Where a debtor had an interest in the estate of a relative and before administration received property in lieu thereof, a payment such as will defeat a garnishment has not been made.</p> <p>3. Garnishment—what will not defeat. An attempted payment of an interest of a debtor in a deceased’s estate will not operate to defeat a garnishment where no receipt or other evidence of such paj-ment is tiled in the office of the clerk of thé court of probate before the service of the garnishment process.</p> <p>4. Execution—when error to award. In the garnishment of an executor, it is error to award execution against land which it appears was, prior to the service of the process, sold to third parties.</p>

<p>1. Judgment by confession—when, should he opened. Where it is made to appear that a note upon which such judgment has been taken by confession was executed in the belief that some other document, not a note, was actually being signed, leave to plead should be allowed upon due application.</p>

<p>1. Living separate and apart—when wife justified in. A wife is justified in leaving her husband and living separate and apart from him where it appears that he called her vile names, accused her of unchastity, by his conduct aggravated her physical affliction, and in other ways abused, her and rendered her life miserable.</p> <p>2. Findings op fact—when, will not be reversed. Findings of a chancellor as to matters of fact will not be reversed by an appellate tribunal, unless they are clearly and manifestly against the evidence.</p> <p>3. Custody op children—to whom awarded. Where the children of a marriage are extremely young, it is, ordinarily, proper upon awarding separate maintenance, to give them into the custody of their mother.</p>

<p>1. Slander—when instructions in action for, erroneous. Instructions as follows :</p> <p>“ Even though the evidence might establish that the defendant said to certain persons each of the words charged as having been uttered and that such words are ordinarily construed to mean that the persons they refer to have been guilty of fornication, she would not be guilty under this declaration if from a preponderance of the evidence you find that her hearers did not give her words the construction contended for and did not understand her to charge that the plaintiff had sexual relations with some man;</p> <p>“If ypu find from the evidence that the defendant spoke the words charged in the declaration of and concerning the plaintiff and that they were spoken about and in relation to a known act which was known to the hearers at the time and such words did not then and there give the hearers to understand that the defendant was thereby charging the plaintiff with unlawful, sexual intercourse with a man, your verdict should be for the defendant,”—</p> <p>are erroneous in an action for slander where a number of occasions were testified to during which the slanderous words were used as to some of which there was an absolute denial by the defendant and as to others of which the defense was merely that explanatory words were employed which gave to the language actually used a different meaning.</p> <p>2. Slander—when instructions in action for, are erroneous. Instructions which would lead the jury to understand that the plaintiff in order to recover must prove all the slanderous words charged precisely as alleged, are erroneous; it is sufficient if enough of the words charged are shown to have been used as charged to establish a right of action.</p>

<p>I. Freehold—when, involved. Where the action is trespass quare clausum fregit and issue is taken upon a special plea of liberum tenementum, a freehold is involved and the appeal should be to the Supreme Court.</p>

<p>1. Bill of sale—when, not essential to pass title. A bill of sale ia not necessary to transfer the title to personal property, where possession is taken immediately after the consummation of the purchase, and such possession is retained by the purchaser.</p> <p>2. Statute of Frauds—section 1 construed. This section, which provides that “ Where any loan of goods and chattels shall be pretended to have been made to any person, with whom, or those claiming under him, possession shall have.remained for the space of five years, without demand made and pursued by due process of law, on the part of the pretended lender * * * the same shall be taken as to creditors and purchasers of the person aforesaid so remaining in possession, to be fraudulent, and that the absolute property is with the possession, unless such loan, reservation or limitation of use or property were declared by will or deed in writing, proved and recorded,”— is not limited to purchasers who have completed the payments for the property so claimed to have been loaned by the party seeking to recover the same.</p>

<p>I. Highway commissioners—when, not liable in action of tort. Highway commissioners are not liable in an action for injuries resulting to an individual from the manner in which they have discharged their official duties to the public, even if there is proof from which the jury might find that such duties were not discharged with reasonable prudence and skill.</p>

<p>1. Dominant heritage—rights of owner of. The owner of the higher land or dominant heritage is not only entitled to the natural flow of water therefrom upon the lower land or servient heritage, but he may tile-drain his higher land and thereby carry off the water in the natural channel, although the flow of water upon the lower land in that natural channel is thereby increased.</p> <p>" 2. Instructions—how meaning of, to be determined. The test of an instruction is not what meaning ingenious counsel can afterwards at their leis'ure reason into it, but in what sense, under the evidence before them and the circumstances of the trial, would ordinai-y men and jurors understand the instruction.</p>

<p>Action on the case. Appeal from the Circuit Court of Lee County: the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of La Salle County; the Hon. Morton W. TIiompson, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>1, Verdict—duty of Appellate Court to review, as to questions of fact It is the duty of the Appellate Court under the law as it exists iri this state to reverse the judgments of trial courts and the verdicts of juries where upon consideration of the testimony they find that such judgments or verdicts are clearly against the weight of the evidence.</p>

<p>1, Interest—when, properly allowed. Interest is properly allowed where it appears that the judgment is for money received by the defendant for the use of another and retained by him without the owner’s knowledge.</p> <p>3. Computation—when error in, will not reverse. An error in computation amounting to S3.94 is not sufficient to reverse, upon the principle of the maxim de minimis non curat lex.</p>

<p>Petition for writ of certiorari. Error to the Circuit Court of DeKalb County; the Hon. George W. Brown, Judge, presiding.</p>

<p>1. Demurrer—when order of election to stand by. essential. It is essential that an order of election to stand by a demurrer be entered, if the overruling of such demurrer is to be relied upon as error, where to complete the issue as tendered only a similiter would have been necessary and where the parties seeking to urge such alleged error offered evidence and made objections which were irrelevant except upon the theory that the issue was deemed to have been formed.</p> <p>2. Videlicet—effect of averment under. Where a date is averred under a videlicet, it is not essential that proof of the particular date so alleged be made.</p> <p>3. Foreign corporation—what pleas setting up illegality of maintenance of suits in this state should aver. Such a plea, to raise the question that such a corporation had not complied with the state regulations at the time it entered into the contract in suit, should set up such fact specifically, and affirmatively aver that the corporation in question did do business in this state.</p> <p>4. Replication—when defendant cannot complain of defective. A defendant cannot complain of the overruling of a demurrer to a defective replication where the plea to which it was interposed was itself defective.</p>

<p>1. Bill of exceptions—when, not essential to review. Where the' face of the record shows the ground upon which the court entered a particular judgment, no bill of exceptions is necessary to authorize a review. (So held by inference.)</p> <p>2. Inferior tribunal—how far action of, reviewed. Where the record of an inferior tribunal is brought before the Circuit Court by a common-law writ of certiorari, the only question before the court is the validity and sufficiency of the record certified to by that tribunal; but where such a record is sent up by virtue of an appeal allowed by statute, full review should be made.</p> <p>3. “Appeal”—what embraced within. While the word “ appeal” has a strict, technical definition, yet it is frequently used as embracing all kinds of proceedings for the review of causes.</p> <p>4. Trial de novo—when, proper upon appeal to Circuit Court, notwithstanding the statute does not specifically so provide. An appeal from the action of a board of police and fire commissioners removing a patrolman, should be determined, not upon a transcript of the proceedings transmitted by such board, but upon a hearing de.novo.</p> <p>5. Removals—power of police and fire commissioners to malee. Removals can only be made by such board for cause and then only when written charges have been filed, a hearing granted, investigation had and evidence heard.</p> <p>6. Civil service employee—what deemed sufficient cause for removal of. A charge either to put a civil service officer upon trial or to justify his removal must specify some dereliction or neglect of duty or incapacity to perform the same, or some delinquency affecting his general character and fitness for the office.</p> <p>7. Civil service employee—how charges against, must be averred. Charges against a civil service employee to authorize his trial or removal should be specifically stated with sufficient certainty, though the technical nicety required in indictments is not necessary.</p> <p>8. .Appellate Court—when jurisdiction to review not ousted. An appellant does not oust the Appell&te Court of jurisdiction to review a judgment by assigning an error which raises a constitutional question where no such question was raised in the trial court or preserved for review.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>1. Warranty—when breach of, precludes recovery uppn insurance policy. Where an applicant for insurance replies “ No” to a question as follows: “ Have you ever been declined or postponed by any company,”— and it appears that he had been rejected by a fraternal benefit society, a recovery cannot be had upon a policy so issued, and with respect to such recovery it is immaterial whether such answer be taken as a warranty or as a representation.</p> <p>2. Incompetent testimony—when admission of, will not reverse. Where a case is tried by a court without a jury, the admission of incompetent evidence will not require a reversal where there is sufficient competent evidence to sustain the judgment.</p>

<p>1. Abstract—what, should contain. An abstract should be sufficiently full to show all errors upon which a party relies for reversal.</p> <p>2. Newly discovered evidence—when new trial will not he granted for. A new trial will not be granted upon the ground of newly discovered evidence where the affidavits which set up the same are indefinite and seek merely an opportunity to contradict a witness upon a matter but remotely important and brought out upon cross-examination and which fail to show diligence in seeking for such proof prior to the trial, which has resulted adversely.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>1. Set-off-right of surety to plead. A surety may interpose by way of defense to an action against him a demand due from the plaintiff to the principal defendant in the action.</p> <p>3. Abatement-when, follows death of defendant. Where one of several defendants to an action at law dies, his death works a severance of the parties defendant and (unless the plaintiff dismisses as to all but the administrator) the action should thereafter proceed against the living defendants only.</p> <p>3. Commission-when real estate dealer not entitled to. Before a real estate broker is entitled to his commission he must produce a buyer who shall be ready, willing and financially able to make the purchase absolutely on the terms fixed by his principal.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>Petition for common-law writ of certiorari. Appeal from the Circuit Court of Knox County; the Hon. John A. Gray, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Bureau County; the Hon. R. M. Skinner, Judge, presiding.</p>

<p>Action of replevin. Appeal from the Circuit Court of Kendall County; the Hon. George W. Brown, Judge, presiding.</p>

<p>1. Photographs-roTisra, properly taken by jury upon retirement. It is proper to permit the jury to take with them upon their retirement a photograph which has been duly received in evidence without question as to its competency, notwithstanding if objected to it might have been held incompetent.</p> <p>3. Earning capacity-competency of proof of, in personal injury case. It is competent in such a case to introduce evidence which tends to show the particular ability of the plaintiff in the line or lines of work which he was accustomed to perform and his consequent earning capacity.</p> <p>3. Conduct op plaintiff-when, will not reverse. The mere fact that the plaintiff in a personal injury case trembled during the trial will not reverse, in the absence of evidence that such trembling was simulated, notwithstanding it may appear that upon other occasions he did not tremble and that such trembling was capable of simulation.</p> <p>4. Argument op counsel-when., cannot be objected to. In the absence of an objection, an adverse ruling and an exception thereto, an argument of counsel cannot be complained of upon appeal.</p> <p>5. Instructions-must relate to facts. Instructions should relate solely to the facts of the case and the jury should be instructed to find against the plaintiff upon a particular fact only where it appears that there is no evidence in the cause tending to establish such fact.</p> <p>6. Verdict-wizen, not excessive. A verdict of $14,000 is not excessive where it appears that the plaintiff up to the time of his injury was a strong, robust and capable man, had the capacity to superintend work upon large industrial enterprises, was then about fifty-three years of age and earning $1,500 per year, and where further there was evh dence tending to show serious permanent injuries, internal and external, of such a nature as entirely to disable him from all participation in the active affairs of life, and which, likewise, demand that he should act with great care to avoid unusual exertion which might at once end his life, and where it further appeared that his physical condition was such as to render his remaining existence miserable and that he suffered severe pain.</p>

<p>I. Assumed bisk—what considered in determining whether danger is appreciated. The ability of a servant to understand the dangers connected with his work is not to be determined by a consideration of his age alone, but his intelligence, capacity and experience must be considered.</p> <p>3. Master—when, does not owe duty of instruction. A master is under no obligation to instruct or warn a servant of a danger which is as well known to him as to such master, and which does not arise from a defective appliance, but is an incident of the method of performing the work in which such servant is engaged.</p>

<p>1. Annexed territory—jurisdiction of chancery to determine status of. Upon proper allegations, a court of chancery has jurisdiction to determine whether certain territory has been properly annexed. (School Directors of Union School District v. School Directors of New Union School District, et al., 135 111. 464. followed.)</p> <p>2. Annexed territory—status of, with respect to piiblic school system. Where territory is duly annexed pursuant to law, it immediately upon such annexation comes under the power, control and jurisdiction of the municipality to which it is annexed, for public school as well as for other purposes.</p> <p>3. Entire controversy—;jurisdiction of chancery to determine. Where a court of chancery has properly acquired jurisdiction for one purpose, it will retain it until it has done complete equity between the parties, although to do so purely legal matters must he determined.</p> <p>4. General Incorporation Act—effect of municipality adopting. The adoption of the General Incorporation Act by a city or village which had previously been incorporated by a special charter, does not thereby necessarily forfeit all its rights or relinquish all its powers theretofore enjoyed under such special charter; it is only such provisions of the charter as are inconsistent with the general act that are abrogated.</p> <p>5. Taxes—what, will not be diverted from channels for which they' were levied. Where taxes have been paid for school purposes without objection or protest, their use for the purposes for which they were levied and designed will not be prevented by any mere technical objections as to the manner in which the levy was made.</p>

<p>1. Corporation—peace?' to borrow money. The power of a coqioration to borrow money in furtherance of its corporate powers and issue its notes therefor, is a necessary incident to the power conferred by its charter.</p> <p>2. Corporate acts—distinction between those tvhich are mala in se or mala prohibita and those which are merely ultra vires. There is a well-defined distinction to be noted between acts which are mala in se or malaprohibita and those which are merely ultra vires: as respects the former, the peace and good order of the state is involved, and the law pronounces every contract to perform such an act, or in consideration of, or in furtherance of such performance as absolutely void, while that which is merely ultra vires does not necessarily involve any moral turpitude or illegality.</p> <p>3. Estoppel—ichen, arises against corporation. Where a corporation gives its notes for a legal and valid consideration which it appropriates and receives the benefit of, it is estopped (the contract as to it being fully executed) from asserting its want of power to execute the same.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Lee County; the Hon. Richard S. Fa brand, Judge, presiding.</p>

<p>Action of assumpsit. Error to the Circuit Court of Knox County; the Hon. John A. Gray, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Henry County; the Hon. William H. Gest, Judge, presiding.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Grundy County; the Hon. Samuel C. Stough, Judge, presiding.

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Kankakee County; the Hon Charles B. Garnsey, Judge, presiding

<p>1. Real estate broker-when, entitled to commission. Where the owner negotiates a sale in person, with a party whom the broker has found and with whom his negotiations are still pending, the broker is entitled to a commission.</p>

<p>Action of assumpsit. Appeal from the County Court of La Salie County; the Hon. William H. Hinebaugh, Judge, presiding.</p>

<p>1. Set-screw—effect of use of, upon question of negligence. The-use of a set-screw by a master is not negligence per se.</p> <p>2. Fellow-servants—who are. Servants of a common master who are engaged at the same time in doing the same work, whose duties have brought them in such close association that they could exercise an influence over each other promotive of proper caution, are deemed fellow-servants.</p>

<p>1. Book accounts—when, competent. A book account contained in a so-called ledger is competent where it appears that such book was kept by an agent of the party introducing the same, that the entries therein were made by such party at the time the transactions were had, that such entries were just and true and were made in the regular course of business, and that the book was one of original entry.</p> <p>8. Written motion for new trial—waiver by. Where a written motion for a new trial, specifying the grounds relied upon, is filed, all grounds not therein specified are deemed waived.</p> <p>3. Newly discovered evidence—when application for new trial by reason of, deemed abandoned. An application for a new trial upon the ground of newly discovered evidence is deemed to have been abandoned where there has been no showing made, by affid a vit or otherwise, concerning such alleged newly discovered evidence, and the point is not raised in the appellant’s brief.</p>

<p>Action of assumpsit. Appeal from the City Court of Aurora; the Hon. John L. Healy, Judge, presiding.</p>

<p>1. Master— duty to furnish appliances. It is the duty of the master to furnish to his servant reasonably safe and sound tools and appliances with which to do his work, and the servant has a right to assume that this duty has been performed, and, in the absence of actual knowledge to the contrary, to act upon this assumption.</p> <p>2. Assumed risk—how far doctrine of, restricted. The doctrine of assumed risk does not apply to a danger arising from unsafe surroundings or instrumentalities unless the employee has or may be presumed to have knowledge or notice thereof.</p> <p>3. Physician’s opinion—when, incompetent. An opinion of a physician based in whole or in part on the self-serving statement of aparty, made with a view of enabling such physician to become a witness on his behalf in a suit where recovery is sought for the injuries, is not admissible in evidence:</p> <p>4. Foreman—when conversation had with, competent. A conversation between an employee and the master’s foreman is competent where its effect is to show notice to the foreman of the conditions which subsequently caused the injury.</p>

<p>1. Bill of exceptions—when, not in apt time. A bill of exceptions showing proceedings upon a motion for a change of venue is not in ape time unless presented at the term at which such motion was heard and. determined or unless an order has been entered during such term fixing the time within which the bill of exceptions might be presented and the same is presented within such time, and no matter contained therein, if it be not presented in apt time, is to be regarded on appeal, notwithstanding such bill of exceptions is presented within the time allowed for presentation of the general bill of exceptions in the cause.</p> <p>2. Poor persons—primary duty to provide for. The primary duty to furnish aid to poor persons, not coming within the definition of paupers, who may fall sick and who have not the money or property to relieve themselves, is on the county and not the city.</p> <p>3. Poor persons—power of county to enaet rules respecting aid to be furnished to. The county board undoubtedly has power to make reasonable rules and regulations in furtherance of the statutory objects, but it cannot, under the pretense of making such rules and regulations, limit its duty to a particular class of persons other than those embraced in the statute or make its relief dependent upon certain lines of conduct.</p> <p>4. Poor persons—rule respecting relief to be furnished to, held invalid. A rule adopted by a county board as follows: “That county aid shall be withheld from any person or persons who engage in riot or lawlessness or any violation of the statutes; also to those who go out on strikes or refuse or neglect to accept work when it is available,"—is invalid as in contravention of statute.</p>

<p>1. Intention—when direct evidence of, competent. Both in civil and criminal suits, where the intent of the party becomes a material issue in the case, that party may be asked the direct question, what was his intention at the particular time or with respect to the particular act in question. In civil cases, however, where there is no evidence that such intention was communicated to the opposite party, and no circumstances from which it might be fairly submitted to the jury .as a question of fact that the other party had notice of the particular intent, then the evidence should be excluded; not, however, on the ground of incompetency, but upon that of immateriality.</p> <p>2. Gambling contracts—?i>7mí deemed. All contracts made between parties who have no intention of delivering or receiving the property but intend to settle on differences that may exist in the market price of the article at the time of settlement and the time of contracting, are gambling contracts and therefore void.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Bureau County; the Hon. Richard M. Skinner, Judge, presiding.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>Proceeding to remove conveyance out of the way of execution. Error to the Circuit Court of Will County; the Hon. John Small, Judge, presiding.</p>

<p>1. Statute oe Limitations—when payment of interest tolls running of. The payment of interest by a life tenant, who likewise holds the conditional fee in reversion, will toll the running of the statute with respect to the right of foreclosure as against those not in esse at the time of such payment who had a contingent interest in the premises in question.</p> <p>2. Parties—toho necessary, to chancery proceeding. All parties who are legally or equitably interested in the subject-matter of the suit are necessary parties to a chancery proceeding, but the interest must be a present, substantial interest as distinguished from a mere expectancy or future contingent interest.</p> <p>3. Decree—who bound by, in chancery. A decree in chancery to which all parties in interest who were in esse at the time the proceedings became lis pendens, is binding upon parties in interest subsequently coming into being.</p> <p>4. Pollateral attaok—when, cannot be made upon chancery decree. Where the tribunal rendering such a decree has full and complete jurisdiction of the subject-matter and of the persons of the parties in interest, the same is not open to collateral attack for mere errors.</p>

<p>1. Impeaching witness—what proper cross-examination of. It is proper upon cross-examination of an impeaching witness to show for whom he acted in seeking information from the plaintiff as to how the injury occurred, in order that the fact and manner of his interest may appear.</p> <p>2. Impeaching statement—lohat evidence competent in rebuttal of. Where a written statement offered by way of impeachment has been introduced, it is competent, where it was claimed that such statement was false and was obtained by fraud and deception, to show all that was said and done at the time it was so obtained.</p> <p>3. Assumed risks—what come within doctrine of. It is those risks alone which cannot be obviated by the master’s exercise of reasonable care, prudence and diligence that the servant assumes.</p>

<p>Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding.</p>

<p>1. Verdict—when not disturbed. The Appellate Court will not disturb a verdict upon a mere question of fact where the evidence is conflicting and there is no clear preponderance one way or the other.</p>

<p>Action of trespass. Error to the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>Action on the case for.personal injuries. Appeal from the Circuit Court of Madison County; the Hon. William P. Early, Judge, presiding.</p>

<p>1. Statute of Limitations—when, does not bar lien claim. In a suit by a contractor against an owner to enforce a mechanic’s lien-claim, section 7 of the act of 1895 has no application.</p> <p>2. Lien claim—what not defense to. Delay in the completion of a contract is not a defense to a claim for lien based upon such contract where such delay was directly attributable to the owner’s acts, and this notwithstanding the contract between the owner and contractor provided that no additional allowance of time for completion should be • accorded the contractor unless a claim therefor was presented within a specified time.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Crawford County; the Hon. Edmund D. Youngblood, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Monroe County: the Hon. Robert D. W. Holder, Judge, presiding.</p>

<p>Action commenced before justice of the peace. • Appeal from the County Court of Fayette County; the Hon. Beverly W. Henry, Judge, presiding.</p>