Volume 120 — Illinois Appellate Court Reports

<p>Distress for rent. Appeal from the County Court of Piatt County; the Hon. F. M. Shonkwiler, Judge, presiding.</p>

<p>1. Judgment by confession—power and duty of court with respect to opening. Courts of law exercise an equitable jurisdiction over-judgments entered by confession under a-power of attorney or cognovit, and such equitable jurisdiction should be exercised liberally.</p> <p>2. Judgment by confession—when, should he opened. Where it appears that the note upon which the judgment was entered was old and had payments indorsed thereon made after ..the statute had run against it, coupled with a delay of ten years after the death of the , payee in entering judgment, the court should open up the judgment.</p>

<p>Action of debt to recover penalties. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Injunction proceeding. Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Adams County; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Contest in court of probate. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Commission—when administrator not entitled to. An administrator is not entitled to charge commissions upon an item which was not actually received by him but which as a matter of bookkeeping might properly be included in his report.</p> <p>2. Administrator’s report—what not res judicata, of item of. The fact that upon the filing by an administrator of his first report no objection is made upon a particular item, although other items are objected to, does not waive the right of the party who has so objected, subsequently to object to such item upon the filing by the administrator of a supplemental report.</p>

<p>1. Assumed risk—when instruction, upon, properly refused. An instruction upon the subject of assumed risk is properly refused where no such defense was interposed in the trial of the cause.</p> <p>2. Instruction—when refusal of “cautionary,” not error. Where an instruction belonging to the class termed “cautionary” is asked, which embodies a number of propositions, it is not error for the court to refuse the same where he has properly determined to refuse such instruction upon any one of the propositions enumerated.</p>

<p>1. Warranty—extent of defendants right upon suit for purchase price. Where the defendant is sued for the purchase price of merchandise, he can only set up a breach of warranty in mitigation of damages.</p> <p>2. Warranty—measure of damages for breach of. Where a breach of warranty is interposed as a defense, the measure of the defendant’s right to mitigate damages is the difference between the value of the machine at the time of the breach and what it would have been worth had the warranty been true.</p>

<p>1, Guaranty—when separate instrument construed as a part of. Where the guaranty executed by the defendant makes special reference to a proposition made by the parties to the original transaction, such proposition will be construed as a part of the contract of guaranty.</p> <p>2. Declaration—how performance of contract should be alleged. The performance of a contract should be alleged in a declaration not by way of stating the legal conclusions, but by settingup the facts from which the legal conclusions may be drawn by the court.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of McLean County; the Hon. Colostin D, Myers, Judge, presiding.</p>

<p>Distress for rent. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Action of assumpsit. Error to the Circuit Court of McLean County; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Passenger—right of conductor to eject. When a conductor in good faith demands of a passenger that he pay his faie or leave the train, and the passenger refuses to do either, the conductor may eject him.</p> <p>2. Instruction—must not submit to jury question of law. An in struction which permits the jury to determine what are the material averments of the declaration, is erroneous as leaving to them the determination of legal questions.</p> <p>8. Instruction—when must not authorise recovery for future suffering. An instruction which authorizes the allowance of damages for future suffering, is erroneous, where there was no evidence of suffering likely to occur beyond the date of the trial. '</p> <p>4. Remarks of court—when cannot be urged as error. Remarks of the trial court cannot be urged as error in the absence of objection thereto having been interposed.</p>

<p>Bill to foreclose. Appeal from the Circuit Court of McDonough County; the Hon. John A. Gray, Judge, presiding.</p>

<p>1. Joinder of complainants—when proper. Parties owning different pieces of real estate in severalty may properly join together as complainants to obtain an injunction against a municipality on account of the same injury and for the same ground.</p> <p>2. Special injury—when property owner suffers. A property owner having property abutting upon a public street and whose right of ingress to and egress from such property is obstructed in such street, sustains a special injury different from that suffered by the public at large.</p> <p>3. Injunction—when lies against municipality. An injunction lies against a municipality to enjoin the removal by it of a brick sidewalk where it appears that to permit the performance of such act would be to allow a breach of trust and an abuse of a power sought to be exercised in bad faith to the wanton injury of the rights and property of individuals.</p>

<p>Action of debt. Appeal from the Circuit Court of Jersey County; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>1. Widow’s award—what does not release. An ante-nuptial contract by which the widow has not specifically waived her award, -will not operate to defeat her right thereto in the absence of a special consideration which would indicate an intention not to claim such provision.</p>

<p>Petition for statutory writ of certiorari. Appeal from .the Circuit Court of Fulton -County; the Hon. George W. Thompson, Judge, presiding.</p>

<p>1. Verdict—weight given to, where third, found by jury. Where three juries have passed upon the issues of fact in a case, and each have found the same way, the Appellate Court will be slow to disturb the verdict.</p> <p>2. Verdict—when not set aside as excessive. Notwithstanding a verdict may appear to the Appellate Court to be excessive, yet where it was rendered upon a third trial upon substantially the same evidence as upon former trials, and it does not appear that another trial would be likely to result more favorably to the appellant, a new trial will not be awarded.</p> <p>3. Variance—when immaterial, A variance is immaterial which consists of an allegation that there was a balance due upon two notes and the proof showed an indebtedness upon but One.</p> <p>4. Variance—when cannot be availed of. Where a variance, if it appeared at all, existed during three trials, it cannot after the third trial be availed of as ground for reversal.</p>

<p>Action commenced before justice of the peace. Error to the Circuit Court of Coles County; the Hon. J. W. Craig, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cass County; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Contest in court of probate. Appeal from the Circuit Court of Pike County; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon County ; the Hon. James A. Creighton, Judge, presiding,</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Coles County; the Hon. B, R. E. Kimbrough, Judge, presiding.</p>

<p>The decision in this case is controlled by the opinion rendered in the former hearing thereof and reported in volume 109 111. App. 73.</p>

<p>Bill in chancery. Error to the Circuit Court of Fulton County; the Hon. J. A. Gray, Judge, presiding.</p>

<p>1. Trespasser—when person upon right of way is. The right of way of a railroad company is its exclusive property upon which no unauthorized person has a right to be, for any purpose, and any person who travels upon such right of way, not for any purpose of business connected with the railroad, but for his own mere convenience as a foot-way, is a wrong-doer and a trespasser.</p> <p>2. Trespasser—when person not. A person traveling along, upon or across a right of way of a railroad company at the intersection of a public highway or street is not a trespasser.</p> <p>3. Trespasser-—when person not. A person in using a crossing as a part of the highway is not bound, in order to avoid being deemed in law or in fact, á trespasser, to pursue any angle or direction when passing over the same; he may not only pass directly over the right of way, but he may also pass from one side of the highway to the other using, the right of way of the railroad company for that purpose for the entire or any part of the distance.</p> <p>4. Trespasser—when person is. Where one uses the right of way of a railroad company where it is crossed by a public highway, not as a part of the public highway for travel or passage, but for his own private purposes, he thereby becomes a trespasser.</p> <p>5. Trespasser—duty of railroad company with respect to. A railroad company owes no duty to a person walking along its tracks without its invitation, either express or implied, except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril. It makes no difference in that respect, whether he is a trespasser, a mere licensee, or one who is on the tracks by mere sufferance, without objection of the company.</p> <p>6. Excessive speed—when presumption of negligence arising from, is rebutted. The presumption of negligence which arises from the running of a train in an incorporated city or village at a greater rate of speed than that authorized by statute, is rebutted where it appears that the plaintiff seeking to recover upon the basis of such negligence was at the time of the injury sustained a trespasser, to whom the defendant company owe no duty.</p>

<p>1. Measure of damages—in action for breach of warranty. In an action for a breach of warranty, the measure of damages is the difference between the market value of the original warranty and the market value of the same in the condition it actually was at the time of the sale.</p> <p>2. Verdict—when not disturbed. A verdict will not be set aside on appeal as contrary to the evidence where such evidence is conflicting and the verdict does not appear to have been the result of prejudice or passion.</p>

<p>Action of assumpsit. Error to the Circuit Court of Coles County; the Hon. J. W. Craig, Judge, presiding.</p>

<p>Action on the case under Dram-Shop Act. Appeal from the Circuit Court of Moultrie County; the Hon. W. C. Johns, Judge, presiding.</p>

<p>1. Instruction—must not assume facts in dispute. An instruction is improper which assumes a fact in dispute.</p> <p>2. Instruction—must not give undue prominence to particular facts. An instruction is improper which gives undue prominence to particular facts in controversy in a cause.</p> <p>3. Instruction—when not cured by presumption. Where the evidence heard in a cause is not preserved, no presumption arises to cure an error in an instruction which consists in assuming the existence of a fact in controversy.</p>

<p>Action on the case. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Action in assumpsit. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Federal statute—how construed. A federal statute which has received a construction by the Supreme Court of the United States will be construed according to the official arbitrament of such court.</p> <p>3. Car-coupler—when does not comply with federal statute. A car-coupler which does not couple automatically by impact without the necessity of men going between the ends of the oars, does not comply with the federal statute with respect to the character of car-couplers to be used in interstate traffic.</p> <p>3. Car-couplers—what will not defeat liability for failure to furnish, in compliance with federal statute. A railroad company cannot by promulgating a rule requiring its employees to perform then-work in a particular manner, defeat a recovery in an action for an injury caused by its failure to meet the requirements of the federal statute with respect to oar-couplers employed in interstate traffic.</p> <p>4. Assumed risk—'ivhen does not apply. Where the actionable negligence alleged is the violation of an express statute, the doctrine of assumed risk does not apply as against the party injured.</p> <p>5. Evidence—when exelusion of proper, will not reverse. The exclusion of proper evidence will not reverse where the evidence sought to be adduced would merely have been cumulative and its exclusion did not prejudice the complaining party.</p>

<p>Bill in chancery. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Foreclosure proceeding. Error to the City Court of Canton; the Hon. John A. Gray, Judge, presiding.</p>

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

<p>1. Instructions—must not assume facts in dispute. Instructions must-not assume the existence of facts in controversy.</p> <p>2. Instructions—must be predicated upon the evidence. Instructions should be based upon the evidence before the jury.</p> <p>3. Instructions—should not, as a general rule, contain mere abstract propositions of law. As a general rule, instructions should not contain mere abstract propositions of law not concretely applied to the cause.</p> <p>4. Warranty—what sufficient to constitute. No particular form of expression is necessary to constitute a warranty; it is a question of intention from the words used, the circumstances and the subject-matter.</p>

<p>Action of trover. Error to the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge, presiding.</p>

<p>1. Instructions—must not submit questions of law to jury. An instruction is erroneous which submits to the jury the question as to what constitutes “ ownership.” Whether the particular facts relied upon establish ownership is a question of fact, but whether the same constitute ownership is one of law.</p> <p>2. Instruction—when failure to define “ actual noticeerroneous. An instruction is erroneous which contains the phrase “actual notice,” and does not define the same, where the jury are likely to be mislead thereby.</p> <p>3. Personal property—what does not establish ownership of. Possession does not, as a matter of law,"establish conclusively the actual ownership of personal property.</p>

<p>Action on the case. Appeal from the Circuit Court of Christian</p> <p>County; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Bill to foreclose. Appeal from the Circuit Court of Macon County; the 1-Ion. W. G. Cochean, Judge, presiding.</p>

<p>1. Flagman—right to assume presence ofetc. A person knowing that a flagman is usually stationed at 'a railroad crossing has a right to rely upon' his presence there and the performance by him of his duty.</p> <p>2. Flagman—duty of. It is the duty of a crossing flagman to know of the approach of trains and to give timely warning thereof to all persons who attempt to cross the tracks and persons who have occasion to cross such tracks can rely that such warning will be given in case of danger.</p> <p>3. Flagman—what does not affect liability of railroad company for failure of, to perform duty. It is immaterial whether or not the duty to maintain a flagman has been imposed by law upon a railroad; if it assumes that duty, it is bound to perform it with due care.</p> <p>4. Instruction—when, containing abstract proposition of law, will not reverse. The fact that an instruction might have been misleading in that it merely contained an abstract proposition of law, will not reverse where the Appellate Court is satisfied that the appellant was not prejudiced.</p>

<p>1. Instruction—when, upon barden of proof, erroneous. An instruction which relieves the plaintiff of the burden of establishing his case by a preponderance of the evidence, in the first instance, is erroneous.,</p> <p>2. Measure of damages—ivhen instruction as to, erroneous. An instruction which tells the jury that if they find the issues for the plaintiff they should assess the plaintiff’s damages at the difference between the contract price of the article purchased and the market price thereof on a particular day, is erroneous, where the question as to such date (being the date of delivery) is in dispute.</p>

<p>1. Findings op master—when not disturbed. The Appellate Court will not disturb the findings of fact made by the master who has heard the evidence, where such findings are not unwarranted by the evidence and have been approved by the trial judge.</p> <p>2 Res judicata—what is, in proceeding in nature of creditor's bill. The denial of a motion to open up a judgment by confession and for leave to plead to the merits is res judicata in a proceeding in aid of execution based upon such judgment, as to the questions of breach of warranty and failure of consideration made the basis of such motion.</p>

<p>1. Collusive suit—what does not establish. The fact that the state’s attorney institutes a proceeding for injunction in the name of the people at the instigation of property owners, and accepts from them the aid of special counsel, does not establish that the proceeding is collusive, where it appears that such state’s attorney received no compensation or promise of compensation for his services.</p> <p>3. Frontage consents—right to withdraw. Property owners signing frontage consents, authorizing the construction of a railroad in front of and along their property, may withdraw the same at any time before finally acted upon by the mayor.</p> <p>3. Frontage consents—effect of absence of, upon ordinance. Where the obtaining of frontage consents from private property owners is essential to the passage of an ordinance, the absence of such consents will render the ordinance void.</p> <p>4. Streets—when state’s attorney may maintain injunction proceedings to restrain unlawful use of. The state’s attorney of a county is empowered to institute and maintain proceedings to enjoin the unlawful and unauthorized use of a public street by a traction company.</p> <p>5. Laches—when doctrine of, does not apply. The doctrine of laches has no application to and will not apply against a cause brought in behalf of and in the interests of the people.</p>

<p>1. Insurance policy—when void. A fire insurance policy issued by a company prior to its being authorized to do business in this State, is void ah initio, at least to the extent of enforcement by itself or its successors, and the subsequent compliance by such company with the statutes of this State does not operate to render such policy valid and enforceable; and this principle applies even though such policy was not made in this State, if.it was made upon property situated therein and with a citizen thereof.</p> <p>2. Comity—when doctrine of, does not apply. Comity between States does not extend to the enforcement of an obligation which, though valid in the State where it was executed, is contrary to the public policy of the State where it is sought to be enforced, or is there forbidden by law.</p>

<p>1. Lis pendens—when doctrine of, applies. The doctrine of Us pen-dens applies, and an insurance assessment company entering into a contract of reinsurance is. charged with notice of the rights of a member of the company whose contracts are being assumed, where at the time "such member is proceeding in chancery for a decree of reinstatement to good standing, and in the event of a successful termination of such proceeding, the reinsuring company is estopped to deny that at the time of entering into said contract, such member was not in good standing.</p> <p>2. Reinsurance—when contract of, authorized. An insurance company doing business in this State has the right to reinsure a part of its business and of transferring a portion of its membership to another company.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Partnership—relief granted upon bill to dissolve. Upon a bill to dissolve a partnership, the court should not merely divide between the partners the assets of the firm but should settle its affairs, including the payment from its assets of its obligations.</p>

<p>1. Instructions—must be predicated upon the evidence. Instructions must be based upon some evidence in the cause.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Coles County; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

<p>Injunction proceeding. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbriok, Judge, presiding.</p>

<p>Action of assumpsit. Error to the City Court of Mattoon; the Hon. Lapsley C. Henly, Judge, presiding.</p>

<p>1. Penal action—when may not be dismissed. The city council cannot by an order necessarily obtain the dismissal of a penal action brought in its name for the violation of its ordinance.</p> <p>2. City attorney—duty of. In suits concerning the city regarded as an individual, the city attorney is required to follow the direction of the city council, but in all matters that merely concern the public, which are for the preservation of morals, the maintenance of good order, the abatement of public nuisances, the destruction of dens of vice and infamy, he is wholly independent of the city council, is a servant of the people, and as to such matters, vested with powers and burdened with duties over which the council have no jurisdiction.</p> <p>8. Ordinance—how question of reasonableness of, determined. The question as to whether an ordinance is reasonable is one of law for the court.</p> <p>4. Gambling ordinance—when not unreasonable. Such an ordinance which provides that one “ found” in a gambling resort is guilty of a violation thereof, is not unreasonable.</p>

<p>Action on the, case for personal injuries, Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Propositions op law—when improperly refused. Where propositions of law are pertinent to the evidence, it is error to refuse the same.</p> <p>2. Estoppel—when doctrine of, does not apply. Mere acceptance by a party of work done for him without complaint, does not operate as an estoppel to institute an action for damages for breach of contract.</p>

<p>1. Surrejoinder—when overruling demurrer to, not reversible error. The overruling of a demurrer to a surrejoinder is not reversible error where there is one good plea to the declaration.</p>

<p>Action on the case. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Motion to dissolve—appeal lies from interlocutmy order denying. An appeal lies from an interlocutory order denying a motion to dissolve an injunction.</p> <p>2. Injunction—upon what relief by, must be predicated. Relief by injunction can only be predicated upon the allegations of the bill; matters which might have been relied upon cannot be considered unless alleged.</p> <p>3. Injunction—when properly sustained. Where, upon a motion to dissolve, a prima facie right to the injunction is shown, it is properly continued in force where hardship would result from a dissolution, and this notwithstanding such prima facie showing is contradicted by the affidavits of the defendant.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Ford County; the Hon. Robert Hilscher, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Adams County; the Hon-. Albert Akers, Judge, presiding.</p>

<p>1. Plea—must be certain. A plea which is self-contradictory is properly overruled on demurrer.</p> <p>2. Insurance policy—when plea does not show lapse of. A plea which undertakes to set up that the policy has lapsed because of default in the payment of premium notes, is bad, where it avers that payment of such notes was to be made “ at such time and in such sums as the board of directors may require,” and does not aver that the board of directors, as such, have ever made requisition, upon the plaintiff for the payment of the whole or any part thereof.</p>

<p>Injunctional proceeding. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>Action of replevin. Appeal from the Circuit Court of Kankakee County; the Hon. Robert W. Hilscher, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Rock Island County; the Hon. Emery O. Graves, Judge, presiding.</p>

<p>1. Parol evidence—when competent to aid return upon venire. In an action by a special bailiff to recover fees for serving a venire, it is competent for Mm to aid his return, where uncertain, by parol evidence.</p> <p>2. Return upon venire—when insufficiency of, cannot be urged. The insufficiency of the return upon a venire cannot be questioned in an action brought to recover fees for the service of such venire, where the defendant has improperly caused parol evidence to aid such return to be excluded.</p> <p>3. Constable —power of Circuit Court to require service of. There is now no law in force in this State which empowers the Circuit Court to compel a constable to serve its writs and to attend upon its juries; nor is there any law which imposes upon a constable any such duty.</p> <p>4. Special venire— compensation to which constable serving, entitled. A constable appointed a special bailiff to serve a venire is entitled to recover by way of compensation therefor the fees prescribed by statute to be paid to a sheriff serving such a writ. A constable likewise performing the services of a special bailiff in attending upon a court, is entitled to the same compensation as that provided for sheriffs when performing such functions. Nor is the payment of such compensation in any wise contingent, as in the case of sheriffs.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Rock Island Count}'-: the Hon. William H. Gest, Judge, presiding.</p>

<p>Injunctional proceeding. Appeal from the Circuit Court of Henry County; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>1. Notice—when party to cause chargeable with. In the absence of a rule of court, a party to the record in a cause is required to take notice of every step taken in the progress of the cause.</p> <p>2. Rule of court—what does not establish. A recital in an ex parte motion as to a prevailing practice, does not establish the existence of a rule of court with respect to such practice.</p>

<p>1. Rules—power of courts of-record to make and enforce. Courts of record have inherent power to make and enforce all reasonable and necessary rules for the transaction and regulation of their business; such rules, however, must not be contrary to the constitution and laws of the State.</p> <p>2. Dismissal—when improper. The dismissal of an appeal from a justice of the peace because of the failure of the appellant to pay a fee required by rule of court, but not authorized by law, is improper and may be set aside on appeal.</p> <p>3. Docket fee—when not chargeable by cleric of County Court. There is no statute in this State which authorizes the charge by the clerk of the County Court of a fee of $4 for docketing an appeal from a justice of the peace, and a rule of court which requires the payment of such a fee is contrary to law and void.</p>

<p>1. Consideration—parol evidence competent to establish, of a written instrument. It is competent to show by parol the true consideration of a promissory note.</p> <p>2. Consideration—burden, of proof to impeach. The burden of proof to impeach the consideration of an instrument in suit, is upon the defendant.</p> <p>3. Privileged communications—what constitutes. Information obtained by an attorney from his client is privileged and it is error to permit him to testify thereto over the objection of the client.</p> <p>4. Preponderance oe evidence—when instruction upon, erroneous. An instruction is erroneous which lays down the rule that if two witnesses of equal credibility testify directly opposite to each other on a question of fact, that the party holding the affirmative of the proposition would not have a preponderance of the evidence.</p> <p>5. Promissory note—what establishes prima facie case in suit on. The introduction in evidence of a promissory note establishes aprima facie case.</p>

<p>1. Fraudulent conveyance—burden of proof to establish. The burden of proof is upon the party alleging it to establish the fraudulent character of a conveyance; all presumptions are in favor of the honesty and good faith of the transaction.</p> <p>2. Fraudulent conveyance—what proof essential to establish. In order to justify a decree declaring a conveyance fraudulent and void, the proof must show that both parties participated in the fraudulent intent.</p> <p>3. Fraudulent conveyance—mere preference does not constitute. A debtor has a right to prefer a creditor and the mere fact that he does so in making a conveyance of his property, does not render such conveyance fraudulent.</p>

<p>1. Continuance—when denial of motion for, is not improper. It is not improper to deny an application for a continuance where the opposing party admits that the absent witness would swear as set forth in the affidavit therefor, where there is no showing that the personal attendance of such witness is essential to the due trial of the cause and it appears that there was no reasonable probability that such personal attendance could be procured if the continuance were granted.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding,</p>

<p>1. Adopted child—heirs of. The adopted parents and their heirs are not the heirs of their adopted child.</p> <p>3. Adopted child—who not entitled to inherit from illegitimate child of. Where an adopted child has received property from its adopted parents and dies, leaving an illegitimate child as the heir of such property, and such illegitimate child dies, leaving no child nor descendant of a child, nor any parent, nor brother, nor sister, nor any descendant of such, nor any surviving husband, the natural heirs of such adopted child take nothing.</p>

<p>Appeal from interlocutory order of injunction. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Certiorari proceeding. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding.</p>

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

<p>In junctional proceeding. Appeal from the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding.</p>

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

<p>1. Husband—when competent as witness in suit by wife. A husband is competent as a witness in an action instituted by his wife where the knowledge of the facts to which he testifies came to him directly from his acts of agency in and about his wife’s business and relate to a contract in dispute which was entered into by him as her agent.</p> <p>2. Abstbact— effect of furnishing incomplete. The Appellate Court will not go into the record in search of information which appellant should have furnished in the abstract, for the purpose of ascertaining if the case should not be reversed.</p>

<p>1. Remedies—when cumulative and concurrent. The remedy in equity to foreclose a trust deed and that at law to sue in assumpsit on the note secured by such trust deed, are cumulative and concurrent,</p> <p>2. Foreclosure proceeding—who necessary and proper parties to. The maker of a note and trust deed sought to be foreclosed is a necessary party to such proceeding; the administrator of a deceased maker likewise is a proper party to such a proceeding.</p> <p>3. Joinder in action—when party estopped to deny propriety of. A party joined in an action is estopped in a subsequent proceeding to deny t le propriety of such joinder where he appeared, answered and did not in any way raise the question as to the propriety of liis having been so joined.</p> <p>4. Res judicata—what is. The findings of a decree in a foreclosure proceeding are res judicata in an action at law instituted upon the notes foreclosed where the parties are identical and no question of jurisdiction is raised.</p> <p>5. Res judicata—what does not affect. The fact that an appeal from a decree containing certain adjudication is still pending and undisposed of, does not affect its conclusive character in another action between the same parties involving the same subject-matter, where no question of jurisdiction is raised; nor does the order in which the respective suits were instituted in anywise affect the question as to the effect of the decree.</p>

<p>1. Accord and satisfaction—what constitutes. Where the parties to a controversy, each having full knowledge of the -facts and without legal compulsion, meet and settle a disputed account, an accord and satisfaction result and the transactions involved in such settlement are deemed merged therein and not subject to be reopened by either party.</p> <p>2. Cross-examination—when improper. Objections to questions calling for answers as to material facts, are properly sustained upon cross-examination where such questions were not based upon anything asked upon direct examination.</p>

<p>1, Statute of Limitations—how construed. Statutes of limitation are statutes of repose and should be construed liberally so that the object for which they are enacted may be attained.</p> <p>3. Statute of Limitations—when bars action upon promissory note. The 10-year statute in this State bars an action upon a promissory note where more than ten years have elapsed between its maturity and the institution of suit thereon, notwithstanding the defendant lived from time to time in different jurisdictions and had not remained in any one jurisdiction a sufficient length of time to bar such note.</p>

<p>1. Declaration—when count on check does not state cause of action. A declaration'by which it is sought to recover from a bank the amount of a check drawn thereon, is fatally defective in not alleging that such bank had on hand sufficient funds at the time of its presentation with which to pay the same.</p> <p>2. Conspiracy—-when does not constitute cause of action. In civil cases a conspiracy does not constitute a cause of action; it is the resulting wrong and not the conspiracy which gives the right of action, if any there be.</p>

<p>1. Practice Act—section 57 construed. That portion of section 57 of the Practice Act which provides that “ no more than two new trials upon the same grounds shall be granted to the same party in the same cause,” has no application to oases in which material errors of law have intervened.</p> <p>.2. Master—when not liable for failure to furnish reasonably safe machinery. The master is not liable for the failure to furnish reasonably safe machinery where it appears that he used the utmost diligence to procure the same and that there was no defect therein discoverable by the exercise of ordinary diligence.</p> <p>3. Instruction—when erroneous, cannot be cured. When an instruction purports to state facts, on proof of which the jury may find for a party, and the instruction is erroneous, it is not susceptible of cure by any other instruction in the series, because the jury may have based their verdict on the erroneous instruction, regardless of all others given, and it cannot be known that they did not.</p>

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

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Elbridge Haneov, Judge, presiding.

<p>1. Assumpsit—when does not lie. Assumpsit does not lie to recover the value of personal property in the hands of the defendant as the property of another.</p> <p>2. Preponderance of evidence—token instruction upon subject of, not erroneous. The following instruction while held to some extent inaccurate, is yet adjudicated as not constituting reversible error:</p> <p>“ The court instructs the jury that the plaintiff in this case sues in the place and stead, and for the benefit of the American Engineering Works, and in order to recover, he must prove by a preponderance of the evidence an agreement on the part of the defendant to purchase certain shares of stock in the Overs trom Concentrating Co. from the American Engineering Works, or to pay that company for certain stock purchased by it for him. And if you believe from all the evidence in the case that the defendant did not so agree with the American Engineering Works, then your verdict should be for the defendant.</p> <p>“ The court instructs the jury that if you believe from all the evidence that the evidence is evenly balanced, or preponderates in favor of the defendant, then you should find for the defendant. ”</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>Petition in receivership proceeding for allowance of fees, etc. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Scaffold—duty of master to furnish reasonably safe, defined. It is not the duty of a master to furnish a scaffold to his servant which is reasonably safe for all uses and purposes; it is the duty of such master to furnish a scaffold that is reasonably safe for the uses and purposes for which it is required and intended.</p> <p>2. Scaffold—how question of safety of, determined. In determining whether a scaffold, platform or other structure is reasonably safe for the uses and purposes for which it is furnished and intended, the court will consider the structure itself, the uses and purposes for which it is required and intended, the length of time its use will be required, by whom it is to be used or occupied and the kind and amount of work to be done thereon.</p> <p>3. Scaffold—what does not necessarily render, unsafe. A scaffold may be reasonably safe notwithstanding it may not have been provided with a railing.</p> <p>4. Assumed risk—when doctrine of, applies. Where a defect is so plain and obvious to the senses that in the exercise of ordinary care an employee would discover it, and he continues in the employment without complaint and without any assurance by the master that the defect will be repaired or the danger removed, he assumes the risk arising from it.</p>

<p>1. "Voluntary—when payment is not. The payment oí an unjust water rate under threat of shutting off the future supply, is not voluntary.</p> <p>3. Assumpsit—when lies to recover money paid under protest. Assumpsit lies to recover unjust water rates paid under protest where payment was exacted under threat of shutting off the future water supply of the premises against which the rate was charged.</p> <p>3. Interest—idhen may he recovered. Interest may be recovered upon money wrongfully obtained by the defendant and illegally withheld from the plaintiff.</p>

<p>Action of forcible entry and detainer. Appeal from the County Court of Cook County; the Hon. Dwight C. Haven, Judge, presiding.</p>

<p>1. Deficiency decree—when averment insufficient to support. An averment that the mortgaged premises were conveyed to the defendant, “who assumed and agreed to pay"’ the indebtedness secured by the trust deed, is but an averment of a conclusion and not sufficient to sustain a deficiency decree.</p> <p>2. Deficiency decree—when evidence not sufficient to sustain. A deficiency decree is not sustained by the introduction of a certified copy of a recorded deed to the defendant which contained the usual assumption clause; such proof should be supplemented by evidence that such deed was delivered and accepted by the grantee or that he in some way fully assented to such assumption clause.</p>

<p>1. Appeal from justice—when error to dismiss. It would be error to dismiss an appeal for want of prosecution where such appeal was taken in the Circuit Court unless summons had been served upon the non-appealing party, or an original and an alias summons has been returned '‘not found,” or the appearance of such non-appealing party had been entered in writing ten days before the term at which such order was entered.</p> <p>2. Appeal from justice—when court has jurisdiction of. Where the defendant before the justice takes the appeal and perfects it in the Circuit Court and the plaintiff before such justice voluntarily enters his appearance in the cause, the Circuit Court acquires jurisdiction both of the parties and of the subject-matter.</p> <p>3. Appeal from justice—when Circuit Court has jurisdiction to enter rule to justify. The Circuit Court has jurisdiction to enter a rule upon the sureties upon the appeal bond to justify as soon as it acquires jurisdiction of the parties and of the subject-matter, notwithstanding such rule may have been entered at a term at which no dismissal could be had for want of prosecution and no trial could be entered upon.</p> <p>4. Appeal from justice—when properly dismissed. Where a rule is properly entered requiring that the sureties upon the appeal bond justify within a time fixed, and in default thereof the appeal be dismissed, a dismissal is properly entered where no effort is made to so justify and no extension of time is asked for or obtained and no new bond is tendered.</p> <p>5. Dismissal—what does not set aside order of. An order providing that a dismissal be vacated upon compliance with a condition named therein, does not operate to vacate such dismissal in the absence of a compliance with such condition.</p>

<p>1. Malice—as used in Insolvent Debtor's Act, defined. Malice, as used in the Insolvent Debtor’s Act, applies to that class of wrongs which are inflicted with an evil intent, design or purpose; it implies that the guilty party was actuated by improper or dishonest motives and requires the intentional perpetration of an injury or wrong upon another.</p> <p>2. Malice—when, not gist of action. Where the character of the •action is determined -by the verdict and such verdict is to the effect that the defendant was “ guilty of wrongfully converting to his own use the goods of the plaintiff,” the action is one of trover and malice does not appear as the gist thereof.</p> <p>8. Gist of action—defined. The gist of an action is the essential ground or principal subject-matter without which the action could not be maintained.</p>

<p>1. Replication—notice of special matter of reply cannot be substituted for. The section of the Practice Act which provides for notice of special matters of defense has no application to special matters of reply to special pleas, and such a notice cannot be substituted for a formal replication.</p> <p>2. Statute op Frauds—how availed of. The Statute of Frauds, where sought to be availed of as a reply to special pleas, should be set up by replication.</p> <p>3. Parol evidence—when, competent to vary terms of written instrument. Where a written instrument has been fully performed, parol evidence is competent to vary its terms.</p> <p>4. Accord and satisfaction— when arises. Where a less sum than that actually claimed as due is tendered in full and is so accepted, an accord and satisfaction is effected.</p>

<p>Action in assumpsit. Appeal from the Superior Court of Cook County; the Hon. H. B. Willis, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding.</p>

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

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>1. Redemption—who entitled to. A judgment creditor of a mortgagor has a right of redemption, notwithstanding such mortgagor had voluntarily conveyed all his interest in the property in question prior to the commencement of the foreclosure proceeding.</p> <p>2. Estoppel—when does not arise. The doctrine of estoppel cannot be invoked as against one who has not practiced upon another a positive fraud and who has not occupied toward such other a fiduciary relation or possessed greater means of knowledge than any other.</p> <p>3. Promissory note—when not merged in decree. The finding in a decree of foreclosure of the amount due on a promissory note other than that secured by the mortgage foreclosed, does not merge the same in such decree.</p>

<p>1. Injury to real property—when cause of aetion for, exists. A cause of action has accrued to real property where the cutting off of access to and egress from such property alleged in the declaration was accomplished before the aption was commenced, and where from the averments of the declaration it appears that the acts which constituted the destruction of the right of access to and egress from such property were but part of the necessary work for the construction of a bridge about to be built, although preliminary thereto, and where it likewise appeared that when the construction of the bridge, according to the plans and specifications adopted therefor, was completed, there would be no new act of prevention of ingress to and egress from such property, but that egress from and access to such property thus destroyed would be continuously maintained from the time prior to the beginning of the suit, forever and without interruption of any kind.</p>

<p>Action on the case. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>1. Common counts—when recovery cannot be had under. A recovery cannot be had under the common counts where it is not claimed and it does not appear that either party thereto had fully performed the express contract, which is the basis of the suit.</p> <p>2. Performance—when proof of , essential to recovery. In order to recover a sum of money claimed to be due from the defendant to the plaintiff,, performance by the plaintiff of his obligations is essential to be established where such a performance is a condition precedent to the obligation of the defendant to pay, and no excuse for his non-performance will avail, where the declaration relies upon performance and does not count upon an excuse therefor.</p> <p>3. Contract for conveyance of land—what does not excuse performance of, by vendee. Lack of good title by the vendor is no excuse for the failure of the vendee to make his payments as required by the contract, where the vendor is under no obligation to make any conveyance until full payment shall have been made by the vendee.</p> <p>4. Remarks of counsel—when ground for reversal, notwithstanding objections thereto were sustained. Notwithstanding improper remarks of counsel were objected to and the objections thereto sustained, they are, where of a seriously prejudicial character, ground for reversal.</p>

<p>1. Dividends—when by-law providing for payment of, ultra vires. A by-law of a corporation organized either for pecuniary profit or not for pecuniary profit, which guarantees to stockholders an annual dividend, is ultra vires and void.</p> <p>2. Dividends—by-law providing for payment of, construed. A bylaw providing for the payment of an annual dividend will not be so construed as to render its performance of such a character as would practically defeat the purposes of the corporate organization, and in such connection will not be so construed as to constitute an obligation to be discharged in advance of running expenses.</p> <p>3. Dividends—;jurisdiction of equity to order. Equity has jurisdiction in a proper case to compel directors to declare and pay a dividend.</p> <p>4. Secretary of state—what corporations not obligated to report to. Corporations organized not for pecuniary profit are not required to make to the secretary of state the annual report provided by the act of May 10, 1901.</p> <p>5. Estoppel—when, arises by pleading. A pleader is estopped to urge that a corporation was organized not for pecuniary profit where by his bill he substantially alleges that it was organized for pecuniary profit.</p> <p>6. Directors—extent of liability of. Officers of a corporation are not held to a strict accountability that every disbursement of corporate funds made by them for legal purposes, is at their pei-il or personal responsibility in case a court, sitting to review the internal management of such corporation, shall reach a conclusion that the funds ought to have been employed for a different purpose. Such an officer only engages for good faith, fidelity and honest service.</p>

<p>1. Sidewalks—extent of municipal liability for safe condition of. A municipality is not an insurer against possible accidents upon a public highway, nor is it bound so to construct its streets that no accidents can happen thereon; if it uses reasonable care to make and to keep its streets in a reasonably safe condition for the use of those who are exercising reasonable care for their safety in passing over them, it has done its whole duty in .that regard.</p> <p>2. Contributory negligence—«Aero pedestrian guilty of. A pedestrian who knows that a certain part of a street is in a dangerous condition, and notwithstanding this knowledge, persists in passing over it, when another and safe way is convenient, does so at his peril; he cannot knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the usé of reasonable precaution.</p> <p>3. Contributory negligence—when person injured while attempting to sgve life of another, guilty of. While the general rule is that one who exposes himself to danger in an attempt to save the life of another is not guilty of contributory negligence, yet where the danger of such other was induced by the voluntary act of such person, the doctrine of contributory negligence applies.</p>

<p>1. Appellate court—when without jurisdiction. The Appellate Court has no jurisdiction of an appeal which brings up for review the question of the constitutionality of an ordinance.</p>

<p>Action on the case for slander. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>In junctional proceeding. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding.</p>

<p>Mandamus proceeding. Appeal from the Circuit Court of Cook County ; the Hon. Edward O. Brown, Judge, presiding.</p>

<p>1. Finding of chancellor—when not conclusive. The finding of a chancellor based solely upon an affidavit is not conclusive, and the Appellate Court will refer to such affidavit to determine for itself whether such finding is correct.</p> <p>2. Decree—ivithin what time, may he set aside. A court entering a decree has control thereof during the term at which it is entered and may, on good cause shown, amend or set it aside during such term.</p> <p>3. Decree—how cannot he impeached for fraud. A consent decree cannot be impeached for fraud by a mere motion. An original bill in the nature of a bill of review is essential for that purpose.</p> <p>4. Decree—when eannot be impeached for fraud. A decree cannot be impeached for fraud where it was entered by consent and' such consent was induced by promises which were not kept and which may not at the time have been intended to be kept. There must appear to have been a false representation of a material fact.</p> <p>5. Notice—when party deemed to have. Notice to the solicitor of a party over whom the court has acquired jurisdiction, is notice to him, and this is true notwithstanding a final decree has been entered in the cause. The right so to serve a party continues until the court has lost control over such decree.</p>