Volume 116 — Illinois Appellate Court Reports

Action on the case for injuries to growing crop. Appeal from the Circuit Court of Jackson County; the Hon. Warren W. Duncan, Judge, presiding. Heard in this court at the February term, 1904.

Action commenced before justice of the peace. Appeal from the County Court of Johnson County; the Hon. W. Y. Smith, Judge, presiding, Heard in this court at the February term, 1904.

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1904.

<p>1. Freehold—when, not involved. A freehold is not involved in an action of trespass quare clausum fregit to recover for an alleged encroachment upon the premises of the plaintiff in putting down a sidewalk upon a public street.</p> <p>2. Reversal—when errors loill not worlc. Notwithstanding many errors may have occurred during the trial of a cause, yet where it appears that substantial justice has been done and that no other verdict than that rendered would have been justified, a reversal will not be ordered.</p>

<p>Foreclosure proceeding. Error to the Circuit Court of Jefferson County; the Hon. Edmund D. Youngblood. Judge, presiding. Heard in this court at the February term, 1904.</p>

<p>1. Contract—when, void. Any contract made in furtherance of a business carried on in violation of the common-law and public policy of this state is void.</p> <p>2. Certificate of deposit—tvhat defense to. It is a good defense to an action brought by the endorsee of a certificate of deposit to show that such endorsement was made and such certificate received in furtherance of an illegal contract.</p>

<p>Action of replevin. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1904.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Madison County; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1904.

<p>1. Contract—when, deemed several. Where there is a purchase at the same time of different articles, at different prices, the contract is several as to each article unless the accepting of the whole is rendered essential either by the peculiar nature of the subject-matter or by the terms of the contract, and if any of such articles do not correspond with the sample by which it or they was or were sold, such article or articles not so corresponding to sample may be returned and the remainder retained.</p> <p>2. Preponderance of evidence—how, determined. Evidence should be measured by “ weight and not (alone) by count.”</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Richland County; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the February term, 1904.

<p>Proceeding to remove cloud. Appeal from the Circuit Court of Edwards County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the February term, 1904.</p>

Contest upon claim against deceased’s estate. Appeal from the Circuit Court of Edwards County; the Hon. Isaac W. Ibbotson, Judge, presiding. Heard in this court at the February term, 1904,

<p>1. Peremptory instruction—when error to give. Where there is a conflict of evidence, the cause should be submitted to the jury, and a peremptory instruction is improper.</p>

<p>Proceeding for specific performance. Appeal from the Circuit Court of White County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1904.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of White County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1904.

Action on the case for personal injuries. Appeal from the Circuit Court of Wabash County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the February term, 1904.

Action on the case to recover for killing of live stock. Appeal from the Circuit Court of Lawrence County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the February term, 1904.

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

<p>1. Sunday closing ordinance—when violation of, does not appear. In the absence of proof of a sale or attempted sale of liquor, no violation of an ordinance requiring Sunday closing is established.</p>

Action commenced before justice of the peace. Appeal from the County Court of Franklin County; the Hon. James P. Mooneyham, Judge, presiding. Heard in this court at the February term, 1904,

Action commenced before justice of the peace. Appeal from the County Court of Hamilton County; the Hon. Charles B. Thomas, Judge, presiding. Heard in this court at the February term, 1904.

Action on the case for death caused by alleged wrongful act. Error to the Circuit Court of Madison County; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1904.

Action on the case for personal injuries. Appeal from the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1904.

<p>1. Champbrtous contract—effect of making, upon Tight cf compensation. An attorney at law is not entitled to recover any fees for services rendered in connection with the prosecution of a matter after he has made a champertous contract with respect thereto, but he is entitled to recover upon a quantum meruit for all services rendered in such matter up to the time of the making of such contract.</p>

<p>1. Assault—when principal liable for, committed by his servant. Where a servant in committing an assault was attempting in good faith,' in his own way, to carry out the purpose for which he was employed, his principal is liable.</p> <p>2. “ Defendant ”—when, construed “ defendants.” Where the defendants in an action of trespass, compose a copartnership, have interposed like defenses, and in their own joint instructions refer to themselves as “ defendant,” a verdict against the “ defendant” will be construed to mean “ defendants.”</p>

<p>1. Statute of Limitations—who may plead. The owner o.f land sought to be foreclosed may plead such statute notwithstanding he was not the maker of the mortgage and may not be personally liable thereon.</p> <p>2. Statute of Limitations—what does not start running of. A provision in a note secured by a trust deed to the effect that upon default in the payment of interest for sixty days after the same,becomes due and payable, the principal shall at once become absolutely due, is permissive only and does not start the running of the Statute of Limitations.</p> <p>3. Statute of Limitations—effect of absence from state upon running of. Section 18 of this act, which provides that absence from the state shall be deducted in computing whether the statute has run against a claim or demand, applies to foreclosure suits.</p> <p>4. Mortgage debt—when grantee becomes personally liable for. Where a grantee of land accepts a deed of conveyance which contains a provision that he shall assume and pay the mortgage debt, he becomes personally liable therefor and assumpsit may be maintained against him.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1904.

Action on the case for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Robert D. W. Holder, Judge, presiding. Heard in this court at the February term, 1904.

Action commenced before justice of the peace. Appeal from the Circuit Court of Johnson County; the Hon. Warren W. Duncan, presiding. Heard in this court at the February term, 1904.

<p>1. Extra-hazardous employment—construction of statute prohibiting employment of children under sixteen at. In this case the court excluded testimony tending to prove the danger and exposure incident to the use of machinery throughout the entire mill in which the plaintiff was employed. The court in ruling limited the evidence to the machinery and conditions in that part of the mill where plaintiff worked. This is held to have been clearly right in that only the hazard of the plaintiff’s employment, work to which he was appointed, is contemplated by such statute.</p>

<p>1. Lease—particular, held binding. In this case a lease conferring the right to' mine minerals considered and held binding and incapable of removal as a cloud upon the owner’s title.</p> <p>2. False representations—what do not constitute. Mere promises and like expressions do not constitute false representations within the meaning of the law.</p> <p>3. Parol evidence—when, incompetent as varying terms of written instrument. Where a contract purports to contain the entire agreement of the parties, parol evidence of other obligations cannot be introduced in that it tends to vary the terms of a written instrument.</p> <p>4. Laches—effect of, upon claim of fraud. Where there has been long acquiescence in the binding effect of a particular instrument, the doctrine of laches applies to defeat a claim that the execution thereof was obtained by fraud.</p> <p>5. Fraud—-who may interpose defense of. The party defrauded, his legal representatives or lawful creditors, are the only persons entitled to interpose the claim of fraud; such right of action is not assignable.</p>

<p>Action on the case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1904.</p>

Action commenced before justice of the peace. Appeal from the County Court of Fayette County; the Hon. Beverly W. Henry, Judge, presiding. Heard in this court at the February term, 1904.

<p>1. Verdict—when, not disturbed. Where a verdict is based upon conflict and contrariety of evidence upon the issues of fact made by the pleadings, it will be deemed conclusive of the rights of the parties unless, upon a review of the record, the court may say that the same was the result of passion, prejudice or mistake upon the part of the jury, or that by reason of errors assigned the appellant was deprived of a fair trial in the court below.</p>

<p>1. Ordinance—presumption as to knowledge of. One dealing with a city and living therein is presumed to have knowledge of the ordi-' nances enacted by and in force in such city.</p> <p>2. Ordinance—how. cannot be amended, modified or repealed. A city ordinance cannot be repealed, amended or modified by a resolution of the city council; in order to produce such result the act which repeals, amends or modifies must be of equal dignity with such ordinance.</p> <p>8. Estoppel—when, does not operate against municipality. A city is not estopped to set up an ordinance prohibiting it from incurring an alleged obligation, when suit is brought against it upon account thereof, merely because it has accepted the benefit of the services made the basis of such alleged obligation.</p>

<p>1. Employment of child under fourteen—claim of negligence based upon. Where the injury of a child under fourteen years of age proximately results from his employment in violation of a prohibitory statute, a recovery may be had.</p> <p>2. Employment of child under fourteen—-what will not excuse. The statements of such a child as to his age are immaterial and will not excuse the results flowing from the violation of the statute prohibiting the employment of such a child.</p> <p>3. Contributory negligence—when, no defense. The contributory negligence of a child under fourteen years of age is no defense to an action brought by such child for an injury resulting by reason of his employment in violation of the statute.</p>

Action on the case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1904

<p>1. Donation—when undertaking for, cannot be enforced. A mere mutual compact to make a donation, which recites no consideration and fixes no time for performance, cannot be enforced in an action of assumpsit in which the declaration does not aver a demand upon the defendant to perform or a refusal upon his part to perform.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Lawrence County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the February térm, 1904.

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Washington County; the Hon. R. D. W. Holder. Judge, presiding. Heard in this court at the February term, 1904.</p>

<p>1. County treasurer,—power of county board with respect to compensation of. Where the county board by resolution fixes the salary, compensation and expenses of the county treasurer for the entire term of his office, such board has exhausted its power to increase or diminish his salary or compensation for any portion of such period.</p>

<p>This case is controlled by the decision in People, etc., for use of Richland County, v. Parker, ante, p. 138.</p>

<p>1. Construction of contract—pertaining' to growing timber. Where one owning standing and growing timber, with the right to cut and remove the same within a specified period, sells to another a certain portion of such timber, with the right, likewise, to cut and remove the same within a period specified, the purchaser acquires more than a mere license, but, upon the other hand, becomes the owner of such growing timber, coupled with a right to cut and remove the same, the time limit in question being regarded as a covenant and not as a condition upon which to base a forfeiture.</p> <p>3. Warranty—when, not implied. Where a contract between parties is in writing and contains no warranty with respect to the property sold and conveyed thereby, none will be implied in law.</p> <p>8. Consideration—competency of parol evidence to establish. It is competent, even in variance of the terms of a written instrument, to show by parol the actual consideration passing by virtue of the contract in question.</p> <p>4. Parol evidence—when, competent to aid in construction of contract. Parol evidence is competent to show the condition of the property which is the subject-matter of a contract, in order that the court may properly arrive at the intent of the parties in the terms used by them.</p> <p>5. Measure of damages—what not, in action for breach of contract. Prospective profits cannot be recovered in"an action for breach of contract to make delivery where there is no evidence tending to show that the plaintiff bought the property in question to fill a particular contract already made by him, and that the defendants knew of the existence of such a contract or of the intended use of such property.</p>

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

<p>1. Freehold—when Appellate Court has jurisdiction of appeal notwithstanding, is involved. The Appellate Courts of this state have jurisdiction of an appeal from an interlocutory order granting an injunction notwithstanding a freehold may have been involved.</p> <p>2. Injunctional order— how far, reviewed upon interlocutory appeal. Upon an appeal from an interlocutory order granting an injunction, the question for determination is whether the court below improperly exercised its discretionary powers in respect to issuing an injunction pendente life, and unless it clearly appears that it lias done so, the order should be affirmed.</p>

<p>This case is controlled by the decision in New Ohio Washed Coal Company v. Coal Belt Railway Company, ante, p. 153.</p>

<p>1. Common counts—when recovery may be had under. Where final payment for work done by a contractor is made by contract dependent upon the issuance to him of a certificate by the supervising architect, and such certificate is withheld through collusion with the owner liable to pay under such contract and the evidence shows that such contractor has substantially complied with his contract and that his work has been accepted by such owner, recovery may be had under the common counts.</p> <p>2. Delay in completion—when, deemed waived. Delay in completing a building contract is deemed to have been waived by the owner where discussion arose during the progress of the work as to the advisability, pursuant to the contract, of taking the work from the contractor because of such alleged delay, which discussion terminated in the subletting by the contractor, with the consent of the owner, of certain portions of the work.</p> <p>3. Building contract—when owner liable to pay under. Where the evidence shows that buildings have been completed and have been accepted and appropriated by the owner, he is liable to the contractor for the contract price, less any damage which he may have suffered by reason of the failure of such contractor strictly to comply with the terms of the contract.</p> <p>4. Architect’s certificate—when, not essential to recovery. In an action upon a building contract which makes final payment conditional upon an architect’s certificate, such certificate is not an essential to recovery if it appears from the evidence that the architect in withholding the certificate did not exercise his honest judgment.</p> <p>5. Extra work and material—when, may be recovered for, notwithstanding it toas furnished without written order. Extra work and material supplied by the contractor without a written order from the architect, as provided by the contract, may be recovered for in an action against the owner, where it appears that the same was accepted by him and no question made as to the character or quality of such extra work and material and the prices charged therefor.</p> <p>6. Competency of evidence —when, cannot be questioned. The competency of a particular class of evidence cannot be questioned where the complaining party offered and had received like evidence upon his own part.</p> <p>7. Intent—when proof of, by direct testimony, competent. Where the question is as to whether an architect exercised his honest judgment in refusing to issue a final certificate, it is competent to ask him directly, and for him to answer directly, as to what his intent'was in refusing such certificate.</p> <p>8. Recoupment—when, deemed in issue. Where, the plea of the general issue is on file and the evidence introduced would fairly have tended to support a claim of recoupment, and no contrary intention appears, it will be presumed that .the defense of recoupment was interposed and determined by the jury.</p> <p>9. Instructions—must not give undue prominence to ‘particular evidence. Instructions should not give undue prominence to particular facts and circumstances in evidence, and where they contain such vice they are properly refused.</p>

Action on the case for libel. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1903.

<p>Injunction proceeding. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, 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 this court at the October term, 1903.

<p>Mandamus proceeding. 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>

<p>1. Insurance Superintendent—power to enforce insurance laws. The insurance superintendent succeeded the.auditor of public accounts and the attorney general in the matter of the enforcement of the insurance laws of this state, and he may now “ institute and prosecute in his name all suits and do all things heretofore required to be done, by the laws of the state, by the auditor of public accounts and the attorney general,” so far as the same relate to the insurance laws of the state.</p> <p>2. Equity—jurisdiction to- enjoin violation of insurance laws. Equity has jurisdiction, at the suit of the insurance superintendent, to enjoin a foreign insurance company from violating the insurance laws of this state where the violations in question are injurious to the public at large, and this, notwithstanding such acts may be punishable as crimes, and further, notwithstanding there may be an adequate remedy at law, and that the complainant has suffered no special injury.</p> <p>3. Multiplicity op suits—when equity ivill take jurisdiction to prevent. Where an action is brought by the insurance superintendent against a great number of defendants, to prevent their several violation of state laws, and the" facts as to each and all are similar and one decree will include and conclude the entire issue, and there is identity of interest upon the part of each and all of the defendants in the question involved and the relief, sought, equity will take jurisdiction in order to avoid a multiplicity of suits.</p> <p>4. Transaction of business—ivhat constitutes, within meaning of insurance laws. Where it appears that foreign insurance companies have collected premiums, paid losses, made contracts of insurance, issued policies of insurance, and have conducted and are conducting and maintaining fire insurance agencies in this state, it appears that they are transacting business in this state within the meaning of its insurance laws.</p>

<p>1. Order—when, not entered by consent. A final order entered in a deceased’s estate, settling the same, is not deemed to have been by consent where it was entered in the usual way, notwithstanding it appears from the order that the parties in interest consented to the approval of the report of the executors and to their discharge.</p> <p>2. Order—when, may be set aside. An order settling an estate and discharging the executors thereof may, at the discretion of the court, be set aside at any time prior to the expiration of the term of entry, and the denial of a motion so to set aside the same is subject to review.</p> <p>8. Order—when notice of motion to set aside, is not essential. It is not essential that executors 'seeking to set aside a final order in an estate, should give the heirs and beneficiaries notice of. such motion.</p> <p>4. Order—when, not personal against heirs. Held, that the particular order in this case, allowing fees to an executor, was not personal against the heirs of the deceased, but was in due form.</p> <p>5. Executor—when, does not waive claim to fees. The distribution of an estate and the approval of the final account does not debar the executor from his right to fees if he asserts the same during the term at which the final order in the estate is entered.</p> <p>6. Executor—right of, to appeal. An executor has the right to appeal from an order refusing to set aside 'the final settlement of an estate and to make him an allowance for fees.</p> <p>7. Appeal bond— when and how objected to. The insufficiency of an appeal bond and its failure to conform to the order granting the appeal should be specifically pointed out in the court to which the appeal is taken.</p> <p>8. Joint executors or administrators—how fees of, should be allowed. Where fees are allowed to joint executors or administrators, a gross sum should be fixed; and it is error for the court to undertake to distinguish between the services of such joint executors or administrators, or to determine how much each, or any of them, may have earned.</p>

<p>Bill to cancel release and foreclose. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Action on the case for death caused by alleged wrongful act. Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Action on the case for death caused by alleged wrongful act. Error to the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>This case is controlled by the decision in McGann v. Harris, 114 Ill. App. 308.</p>

Action on the case by husband for loss of services of his wife. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

<p>1. Credibility or witnesses— when instruction pertaining to, is subject to criticism. An instruction which tells the jury, in substance, that i£ they believe that any witness or witnesses have knowingly and wilfully testified falsely as to “ any matter in controversy in this case” then they have a right to disregard the entire testimony of such witness or witnesses, etc., is subject to criticism in not limiting such right to a case where the false testimony referred to a matter material to the issue.</p> <p>2. Verdict—what essential to raise question of sufficiency of evidence to sustain, as a matter of law. In order to preserve for review the question of the sufficiency of the evidence, as a matter of law, to sustain the verdict, it is essential that a motion to instruct be made at the close of all the evidence.</p>

<p>1. Record—what not part of. An order denying a motion for injunction is not appealable; therefore, affidavits filed in support thereof are not a proper part of the record in such cause.</p> <p>2. Injunction—when, does not lie. An injunction does not lie to restrain either a party or a stranger to a contract from interfering with the completion thereof, as an adequate remedy exists at law.</p> <p>3. Injunction—what hill for, should allege. It is not sufficient in a bill for injunction to allege in general terms that the acts or conduct sought to be enjoined are wrongful and that they interfere with and injure the trade and business of the complainant; the bill must state facts from which the court can see that the acts alleged were wrongful and done with intent to injure the complainant and do, in fact, in a specified and particular manner pointed out in the bill, injure the particular and specified business of the complainant.</p>

<p>Action of assumpsit. Error to the Circuit Court of Cook County; the Hon. Owen P. Thompson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>1. Continuance—when denial of, deemed waived. Where a motion for a continuance forms a substantial part of the trial, its denial cannot be urged as error upon appeal where such denial is not urged as a ground for new trial in a written motion filed in support thereof.</p> <p>3. Continuance—when affidavit for, is defective. An affidavit for a continuance is defective in failing to state that what the applicant expects to prove by the absent witness is true or that he believes it to be true.</p> <p>3. Hospital records—how far, competent. Hospital records are only evidence of facts necessarily within the knowledge of the person making the entry.</p> <p>4. Condition op health—how far warranty of, extends. A warranty or representation as to the condition of health goes only to the extent of an honest and true statement of the applicant’s belief.</p> <p>5. Warranty—what will not he tahen as, so as to defeat recovery upon insurance policy. In the absence of evidence, the court will not bold that unanswered statements in any wise constitute a warranty such as will defeat recovery upon a policy.</p>

<p>1. Release—when, bars recovery for personal injuries. The effect of a release of a claim for personal injuries cannot be overcome in the absence of fraud in the execution thereof, where it appears that the plaintiff having ability to read, did not read the same.</p>

<p>Action on the case for personal injuries. Error to the Circuit Court of Cook County; the Hon. Edward P. Vail. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

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

<p>Action of assumpsit. Error to the Circuit Court of Warren County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the April term, 1904.</p>

<p>1. Attorney’s fees—when, properly allowed in action against railroad company for failing to keep its right of way clear of dead grass, etc. Notwithstanding the declaration in such a case charged failure to keep such right of way clear of “ dry grass,” etc., and in other respects failed to follow the exact language of the statute, yet the allowance of attorney’s fees is proper where the case was tried upon the theory of, and the proof brought the case within, the language of the statute.</p>

<p>Action on the case for personal injuries. Error to the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1904.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the April term, 1904.

<p>Petition for allowance of interest. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1904.</p>

<p>Foreclosure proceeding. Error to the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the April term, 1904.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1903.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1903.</p>

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

<p>Creditor’s bill proceeding. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavaxagh, 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. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1903.

<p>1. Deposition—when suppression of, cannot be complained of %ipon appeal. Where a deposition has lor any reason been suppressed, its suppression cannot be complained of on appeal where its contents were in no wise pertinent to the issues in the cause.</p> <p>2. Promise to pay debt of another—what essential to binding character of. If a creditor influenced by the voluntary promise of a third person to guarantee a debt, forbear to press the debtor, the forbearance will not constitute a consideration for the promise. To suffice as such, it must be given at the instance of the promisor, and so in every case the act which constitutes the consideration must be brought about by him.</p> <p>3. Allegations and proof— both essential to recovery. Proof without corresponding pleadings is as ineffectual as pleadings without corresponding proof.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>1. Res ipsa loquitur—when doctrine of, applies. Where the injury to the plaintiff resulted by reason of a passenger train of the defendant crashing into the rear of a.moving work train upon which the plaintiff was riding, the doctrine of res ipsa loquitur applies and negligence upon the part of such defendant will, in the first instance, be presumed.</p> <p>2. Verdict—when, not disturbed. Where'the verdict is based upon conflicting evidence, it will not be disturbed because the Appellate Court might, upon submission of the case to it for trial, find the preponderance of the evidence in favor of the appellant.</p> <p>3. Statement of counsel—what improper. A statement of counsel in argument that the defendant would appeal from a small verdict as quickly as from a large one, is improper.</p> <p>4. Conduct of counsel—when, cannot be complained of. In the absence of an exception taken in apt time in the trial court, conduct of counsel cannot be complained of on appeal.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1908.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1003.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October 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.</p>

<p>1. Interest—particular construction placed upon. The word “interest ” in this case is held to be the equivalent of “ part” or “ share,” and is construed as not designating the extent of the vendor’s title.</p> <p>2. Contract—construction of, pertaining to sale of land. Where a contract provides for the sale by a party of only his right, title and interest in certain real estate, a covenant in such contract to furnish an abstract showing perfect title to the premises, free and clear of any and all encumbrances, does not operate to enlarge the estate agreed to be granted.</p> <p>3. Contract—how to be construed. Every part of a contract is to be given effect, and, if consistent, a construction adopted that will attain that end.</p> <p>4. Contract—when, void for uncertainty. A contract which provides for the conveyance of a particular number of acres of land which form a portion of a larger tract, without specifying from what part of such larger tract such number of acres are to be taken, is void for uncertainty.</p> <p>5. “ More or Less function of, as applied to instrument pertaining to land. The words “ more or less ” after the designation of a number of acres in a tract of land described by metes and bounds with respect to fixed monuments, are words of safety and precaution and are intended to cover some slight inaccuracy in the computation of the number of acres contained within the designated boundary lines. A description by metes and bounds and fixed monuments controls a statement as to quantity.</p> <p>6. “ More or less”—effect of tese of. In this case the contract did not describe the land to be conveyed by metes and bounds or by any fixed ascertainable monuments, and in the absence of any such guides, the words “more or less” do not weaken or destroy the statement of quantity.</p>

<p>1. Feb bill—wlven, may be issued for recovery of costs. A fee bill to recover costs incurred by a plaintiff and not paid by him may be issued at any time within seven years after the rendition of judgment or accruing of the right to issue the same.</p> <p>3. Statute of Limitations—when, bars action by county for recovery of court costs. An action of assumpsit instituted by a county for the recovery of court costs must be brought within five years after the cause of action accrues.</p>

<p>1. Mandamus—when writ of, will not issue. The writ of mandamus will not be issued unless the petitioner shows a clear right thereto.</p> <p>• 2. Mandamus—what party seeking, must allege. A party seeking to compel the performance of any act by mandamus must set forth every material fact necessary to show that it is the plain duty of the party sought to be coerced to act in the premises.</p> <p>3. Mandamus—what petition to compel township treasurer to credit school district with amount of taxes collected,, should allege. Such a petition should allege, among other things, that such school district has not received the full amount of such taxes to which it is entitled and that at the time of his refusal so to make such credit, there was in the hands of such township treasurer sufficient funds from the particular source from which such credit was to be made to enable.him to make the same.</p>

<p>Action on the case for slander. Appeal from the Circuit Court of Vermilion County; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>Contested claim in court of probate. Error to the Circuit Court of Greene County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>1. Mandamus—what essential in order that discharged patrolman may gain reinstatement by. In order that a discharged patrolman may be entitled to reinstatement by mandamus, be must establish that at the time of his discharge he was an officer de jure.</p> <p>2. Office de jure—when that of patrolman is not. Held, that an ordinance which merely defined what should constitute the police department of a city and provided, among other things, that such department should consist of “as many policemen as the city council may from time to time provide for,” does not thereby render the office of a patrolman taken into the city’s service as one de jure, from which he cannot be discharged without formal charges and trial.</p>

<p>Bastardy proceeding. Appeal from the County Court of Macon County; the Hon. Orpheus W. Smith, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>1. Consideration—what not binding by way of. The agreement of a party to perform an obligation already binding upon him will not form a consideration for an undertaking by the other party to perform another act.</p> <p>2. Custom—what essential to competency of. To render evidence of a custom admissible, it must be established that it was uniform, long established, generally acquiesced in, and so well known as to induce the belief that the parties contracted with reference to it.</p>

Action on the case for libel. Appeal from the Circuit Court of McDonough County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the May term, 1904.

Action commenced before justice of the peace. Appeal from the Circuit Court of Vermilion County; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1904.

<p>Action of assumpsit. Appeal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1904.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Hancock County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1904.

Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1904.

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 May term, 1904.

Action on the case for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1904.

<p>Action of assumpsit. Appeal from the County Court of Macoupin County; the Hon. John B. Vaughn, Judge, presiding. Heard in this court at the May term, 1904.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1904.

Action of assumpsit upon benefit certificate. Appeal from the Circuit Court of Cass County; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1904.

<p>1. Statute of Limitations—hoiv, availed of. In order to avail of the defense of the Statute of Limitations it must be specially pleaded and unless so pleaded the bar thereof is waived.</p> <p>3. Statute of Limitations—hoiv defense of, may be avoided. In-some cases the defense of the Statute of Limitations may be avoided by a new promise; in others, by the recognition of the right conferred and an attempt to perform the duty imposed.</p> <p>3. Statute of Limitations—tohen, waived by drainage commissioners. Drainage commissioners cannot successfully defeat mandamus proceedings to compel the altering, repairing and modification of a drainage system by a reliance upon che Statute of Limitations, where it appears that within the time set up as a bar to the action they have recognized by their conduct their obligations in the premises.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1904.

<p>1. Freehold—when, not involved. A freehold is not involved in a creditor’s bill proceeding brought to collect a judgment, and, to that end, to compel the execution of a trust, and by which a freehold could not be lost by one party nor gained by the other.</p> <p>2. Judgment—how, revived, where partners were plaintiffs. A proceeding to revive a judgment entered in favor of a copartnership should after the death of one partner be revived in the name of the surviving partner alone.</p> <p>3. Judgment—when revival of, cannot be collaterally attached. An irregularity in the revival of a judgment cannot be availed of in a proceeding by creditor’s bill filed to enforce the collection of such, judgment.</p> <p>4. Trust—to what extent equity will construe, for benefit of creditors of a beneficiary thereof. A court of equity will not construe a will chiefly with reference to the relation existing- between creditors and one of the beneficiaries thereof, who is likewise the trustee, in order to assist such creditors; but the first concern of the court will be to carry out the intention of the testatrix as to the beneficiaries other than such debtor trustee and beneficiary, and give its aid to such creditors as a secondary consideration and onlj- when it can be seen that such aid can be given without injury to such other beneficiaries.</p>

Bill in equity based upon allegations of fraud. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1904.

<p>1. Demurrer—when overruling of, cannot be complained of. Where a defendant, at law, after his demurrer has been overruled, pleads the general issue, he cannot thereafter be heard to complain of the .overruling of such demurrer.</p> <p>2. Deceit—what essential to recovery in action for. To recover in an action for deceit the statements relied upon must have been in relation to a matter material to the transaction, must have been untrue, the party making them must have known them to be false, and the person seeking to recover must have relied thereon.</p> <p>3. Deceit—what not proper basis of action for. In an action for deceit recovery cannot be predicated upon a matter ex contractu.</p>

<p>1. Breach of warranty—when action for,properly brought. Where the plaintiff purchased of the defendant a bull with the understanding that if as a breeder he was not up to warranty the plaintiff has the right, where such bull is not up to warranty, either to return the bull or, as in this case, to bring suit for breach of warranty.</p> <p>2. Offers of compromise — when admission of evidence of, will not reverse. Where the complaining party has introduced such evidence he cannot complain of the introduction of like evidence by the other party to the controversy.</p>

<p>1. Agent—by whom scope of authority of, to be determined. Whether an. agent for an insurance company was apparently clothed with a particular authority is a question of fact to be determined by the jury upon a consideration of all the facts and circumstances proved.</p> <p>2. Evidence—when incompetency under state of pleadings cannot be urged. Incompetency of evidence under the state of the pleadings cannot be urged where such evidence was received without specification of such ground of objection.</p> <p>3. Release—what evidence with respect to execution of, competent, under plea of non estfaetum. Under such a plea evidence of fraud in the execution of a release may be offered.</p> <p>4. Verdict—when.amount of, cannot be complained of. Where the defendant in an action of assumpsit has predicated its entire defense upon a plea of non-liability and has tried the case upon a like theory, it cannot, upon appeal, be heard to claim that the verdict did not take into consideration a matter of set-off to which ic was entitled.</p>

<p>Proceeding by information. Error to the County Court of Macoupin County; the Hon. John-B. Vaughn, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>I. County Court—-no, jurisdiction to entertain foreclosure proceedings. The act which gives to the judge of the County Court authority to issue an order directing the sheriff to seize household goods covered by a chattel mortgage, does not confer jurisdiction upon the County Court to entertain a proceeding to foreclose the same.</p>

<p>1. Declaration—when, sufficiently alleges that land was free of encumbrance. An allegation in a declaration to the effect that the deed which the plaintiff executed and tendered to the defendant and after-wards deposited in a bank for the defendant, conveyed the land in question in fee simple free of all encumbrance, argumentatively avers that the plaintiff was then seized in fee simple of the premises, that the same were free of encumbrance, and that the deed was a warranty deed.</p> <p>2. Argumentative pleading—how reached. Argumentativeness in pleading can only be reached by special demurrer.</p> <p>8. Liquidated damages—when provision for, does not absolutely fix defendant's liability for breach of contract. Where a party does not execute his option to terminate a contract and seek to recover the amount specified therein by way of liquidated damages, he may keep the contract alive and claim damages irrespective of the amount fixed by the contract in an action for a breach thereof.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Tazewell County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>1. Appeal prom justice—when, should he dismissed. An appeal from a justice of the peace should be dismissed where it appears that it was not taken and perfected within the twenty days prescribed by statute.</p>

<p>1. Demurrer—when overruling of, waived. Where a defendant does not abide by his demurrer, but after it has been overruled pleads to the declaration, the error, if any, in overruling such demurrer is deemed to have been waived.</p> <p>2. Plea of justification—what must allege. A plea of justification in an action for libel must be of the very matter alleged in the declaration, the very matter which was published, and it must be complete. It must allege the facts which show the truth.</p> <p>3. Plea of justification—what essential to, where the alleged libel charged a protection of gamblers. Where the alleged libelous article charged that the plaintiff, as mayor of a city, protected gamblers, a plea of justification to be sufficient should set up facts showing how, when, where and what the plaintiff did or said in so protecting gamblers.</p> <p>4. General issue—what not competent under, by way of mitigating damages. The defendant in an action for libel cannot be permitted to show under the general issue and upon a claim of mitigating the damages, facts which tend to cast suspicion of the plaintiff’s guilt of the very charges which the defendant has declined to undertake to prove.</p>

<p>1. Real estate agent—when, entitled to commissions. Where the agent has found a purchaser ready, willing and able to purchase the property of the owner, upon the terms fixed by him, but the sale is not consummated because of the owner’s inability to perform, the agent is entitled to his commission.</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 May term, 1904.

<p>Separate maintenance proceeding. Error to the Circuit Court of Sangamon County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Vermilion County; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Vermilion County; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term. 1904.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1904.

<p>1. Fee title—ivhat does not pass by conveyance of. A demand against a traction company for the proportionate cost of paving a street, which by its franchise ordinance was required to be paid by it to abutting property owners, does not pass by a conveyance of the fee but is a mere chose in action which may be sued for and collected by the owner of the land at the time the obligation accrued..</p> <p>2. “ Cost oe paving”—construction of, as used in franchise ordinance. The words, “ cost of paving,” as used in a particular franchise ordinance, held to contemplate reimbursement to the property owners and not merely the actual cost of paving the strip in question exclusive of the expense of excavating, grading and graveling preparatory to laying the pavement.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1904.

<p>1. Insurance policy—what will not avoid. The mere fact that, contrary to the terms of the policy, other insurance has been obtained by the insured, will not render such policy absolutely void.</p> <p>2. Waiver—construction of clause of insurance policy pertaining to. A provision in an insurance policy to the effect that any waiver of any of the terms thereof shall be written upon or attached to the policy, may itself be waived.</p> <p>3. Forfeiture—when insurance company estopped to insist upon. If additional insurance is by the insured placed, contrary, to the terms of his policy, and notice thereof given to such company, or to its agent, or if actual knowledge of such fact is brought home to the company and no objection is made, the company will be estopped from insisting upon a forfeiture because its consent was not endorsed upon the policy.</p>

<p>1. Incompetent evidence—when, will not reverse. Where a case has been tried, by the court without a jury, the admission of'incompetent evidence will not reverse where there is in the record sufficient competent and proper evidence to warrant and sustain the finding.</p>

<p>Action of replevin. Appeal from the County Court of Sangamon County; the Hon. George W. Murray, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>Mandamus proceeding. Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term. 1904.</p>

<p>1. Verdict—when, not disturbed. Where the evidence is conflicting, it is the peculiar province of the jury, who are the sole judges of the credibility of the witnesses and the weight to be given to their testimony, to determine where the truth lies, and where no error intervenes in the trial calculated to prejudice the rights of the defeated party and there is nothing in the record tending to show that the jury was actuated by passion, prejudice or partiality, or that their verdict was the result of mistake, a judgment in accordance with their verdict should not be disturbed by a court of review.</p>

<p>1. Equitable lien—what essential to. It is indispensable to an equitable lien that the property intended to be charged therewith should be identified or described with a reasonable degree of certainty.</p>

Action on the case for injury caused to real property. Appeal from the Circuit Court of Cumberland County; the Hon. James W. Craig, Sr., Judge, presiding. Heard in this court at the May term, 1904.

Action commenced before justice of the peace. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1904.

Action on the case for personal injuries. Appeal from the Circuit Court of Douglas County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1903.

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

<p>Action on the case for personal injuries. Error to the Circuit Court of Cook County; the Hon. Edmund Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

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

<p>Mandamus proceeding. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

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

<p>1. Foreign judgment—right to attach jurisdiction of court entering. In an action of debt upon a judgment rendered in a sister state it is competent to show by parol that such court never acquired jurisdiction of the person of the defendant.</p>

<p>Action of trover. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>1. Propositions of law—when assignment of error based upon refusal of, deemed waived. Where propositions of law refused by the court are not discussed nor mentioned in the printed brief of the complaining party, the error assigned upon such refusal is regarded as abandoned.</p> <p>2'. Finding and judgment—when sufficiency of evidence to support, will not be considered on appeal. Where the bill of exceptions fails to show an exception to the finding and judgment of the court, but merely a motion to set aside such finding and for a new trial, the Appellate Court will not review the question as to whether such finding and judgment is contrary to the law and the evidence.</p>

<p>1. Receiver—when appointment of, in foreclosure proceedings, proper. The appointment of a receiver to collect rents to apply on a decree which is all deficiency and unsatisfied in every part is proper, notwithstanding the first mortgagee who filed the original bill in the cause has been paid in full by the sale of the mortgaged premises.</p> <p>3. Insufficient security—what evidence of. The fact that a sale of land foreclosed did not realize enough to pay the cross-complainant applying for a receiver, shows that the security, aside from the rents and profits sought to be sequestered, is insufficient.</p>

<p>1. Assessment—burden of proof to establish default in payment of. The burden of proof is upon the society to establish an alleged default in the payment of an assessment, and such burden, likewise, extends to the showing that such assessment was regularly levied in accordance with its own laws providing therefor.</p> <p>2. Assessment—how proof of validity of, made. Such proof can in the first-instance be made by the society by the introduction of its own records or else it can be established by direct and affirmative testimony.</p> <p>3. Assessment—construction of by-laws regulating malting of. Bylaws of a fraternal benefit society providing for the levying of an assessment against members thereof, are to be strictly construed so as, if possible, to prevent forfeitures.</p> <p>4. Assessment—when, illegally made. An assessment made by a fraternal benefit society is illegal where its by-laws provide that such assessments may be made by its executive committee if necessity requires, and it does not affirmatively appear from the proof offered that such necessity was shown prior to the levying of such assessment.</p> <p>5. Assessment—what notice essential to validity of. In the absence of a provision in the by-laws of a fraternal benefit society providing for the kind of notice to be given to members of an extra assessment, it is essential that actual -notice 'thereof should be given to each member in order that non-payment of such assessment may become a legal ground of forfeiture. ,</p>

<p>Bill for accounting. Appeal from the Circuit Court of Cook County, the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>i. Res judicata—when judgment in former case is. Where upon appeal in a former case brought for a prior installment of rent than that sued for in the second suit, the sufficiency of the assignment of the lease, which forms the basis of both suits, is determined upon substantially the same evidence, the decision and judgment in the first suit is as to such question res judicata in the second.</p> <p>3. Res judicata—when judgment in former suit is not. When the cause of action in a second case is different from that of a former one between the same parties, the judgment in the first case is not res judicata as to the second unless it appears that the identical question raised in the latter suit was in fact adjudicated in the former.</p> <p>3. Rents—right of mortgagor to recover. A mortgage as to strangers conveys merely an equitable title to the mortgagee and the mortgagor has the right, in the absence of sequestration by receivership, to sue for and recover rent of the mortgaged premises.</p> <p>4. Rents—when, do not pass to trustee in bankruptcy. Rents do not pass to a trustee in bankruptcy where it appears that at the time of bankruptcy the same had not been collected, were not property which could have been transferred by the bankrupt, and which could not have been levied upon and sold under judicial process against him.</p> <p>5. Ultra vires—when lease is not. Where a corporation organized, among other things, for the purpose of “buying and selling lager beer.” leases premises and uses them in part, at least, for a saloon, the lease is not ultra vires and void, and may be made the basis of a recovery against it.</p> <p>6. Supplemental abstract—when cost of, not taxed against appellant. Notwithstanding a supplemental abstract may supply some matters not fully abstracted, yet where it was not necessary to a decision of the case, the cost thereof will not be taxed against the appellant.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the 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 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. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1903.

<p>Mandamus proceeding. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, 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>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1903.</p>

<p>1. Special interrogatories—when giving by court without submission to counsel, not prejudicial error. Where it appears that the giving by the court of special interrogatories without submitting them to counsel, resulted in no prejudice to the complaining party, reversible error is not committed. (P., C., C. & St. L. Ry. Co. v. Smith, 207 Ill. 490, distinguished.)</p> <p>2. Coroner’s inquest—competency of evidence taken at. The evidence of a witness taken at a coroner’s inquest is competent by way of impeachment where he signed the same and admits such signing.</p> <p>3. Remarks of trial court—effect of instruction telling jury to disregard. Such an instruction will be considered upon appeal as tending to remove any error which may have been committed by ill-considered remarks.</p> <p>4. Negligence per se—when claim of, ivaived. An appellant cannot urge that particular conduct constituted negligence per se where upon the trial it caused the question as to whether such conduct constituted negligence to be submitted to the jury as one of fact.</p> <p>5. Negligence per se—what does not constitute, It is not negligence per se for one to pass behind a car and to step upon an adjoining track without first looking to see if a car is approaching upon such second track.</p> <p>6. Instructions—how to he considered. Instructions are to be read as a series. They supplement each other) and the omissions of one may be cured by the contents of another.</p> <p>7. Wantonness—when evidence sufficiently sustains charge of. Evidence which tends to show that a street car was being run at a dangerous rate of speed in a populous part of a city, without ringing the gong, up to and over a cross-walk, at a street intersection, at a time when a car going in the opposite direction stood upon or had just left that cross-walk, will sustain a charge of wantonness. (So held by the judge delivering the opinion of the court.)</p> <p>8. Wantonness—when evidence of, not essential to recovery. It is not essential that the jury should find wilful and wanton negligence upon the part of the servants of a traction coriipany where they find negligence merely upon the part of such servants and an exercise by the plaintiff’s intestate, who was a child, of ordinary care, judged by the standard applying to adults.</p>