Volume 122 — Illinois Appellate Court Reports

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Stark County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1905.</p>

<p>1. Executrix—when purchase by, though constructively fraudulent, will not be relieved against. Where an executrix purchased (through a circuitous route) at her own sale, no relief will be awarded where such sale was, with full knowledge, ratified by the only person having a right to object; the heirs of such ratifying person have no greater rights tlian she would have had if living.</p>

<p>Action on the case. Appeal from the Circuit Court of Ogle County; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April -term, 1905.</p>

<p>Bill for accounting. Appeal from the Circuit Court of LaSalle County; the Hon, Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1905.</p>

<p>1. Last will and testament—when latent ambiguity exists in, A latent ambiguity exists when that which seems certain and without ambiguity on the face of the deed or instrument, is rendered uncertain and ambiguous by something outside thereof</p> <p>2. Last will and testament—parol evidence competent to remove latent ambiguity. When by a resort to extrinsic evidence a latent ambiguity is raised in the instrument, parol evidence is generally admissible to dissolve the same.</p> <p>3. Last will, and- testament—latent ambiguity in, dissolved. Where a testator makes his “legal heirs in Germany” his residuary legatees and it appears that all h'is heirs, except one, reside in Switzerland, and that such one resided in Germany without his knowledge, and that he did not entertain towards such one any special affection, the will should be construed as making his legal heirs wherever they reside his residuary legatees.</p>

Action commenced before justice of the peace. Appeal from the County Court of Lake County; the Hon. DeWitt L, Jones, Judge, presiding. Heard in this court at the April term, 1905.

<p>1. Broker—when not entitled to commissions. A broker who does not himself produce the purchaser, but who has introduced to the seller a person, as a prospective buyer, who, however, subsequently acting under an independent brokerage arrangement, makes a sale, is not entitled to a commission.</p>

<p>1. Pauper—when town liable for keep of. A town is liable for the keep of a pauper who is temporarily removed from its territorial limits by the supervisor thereof; such removal is within the power of the supervisor and the pauper’s actual legal domicile thereby is not changed.</p> <p>2. Pauper—when town liable for keep of. One who-furnishes food and clothing to a pauper who is a legal charge upon a particular town, may recover from such town the reasonable value of the food and clothing so supplied.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Jo Daviess County; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term. 1905.</p>

<p>Bill for accounting. Error to the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the April term, 1905.</p>

Action for damages to personal property. Appeal from the Circuit Court of Kankakee County; the Hon. Linus C. Ruth, Judge, presiding. Heard in this court at the April term, 1905.

<p>Action of debt. Appeal from the]Circuit Court of Kankakee County; the Hon. Linus C. Ruth, Judge, presiding. Heard in this court at the April term, 1905.</p>

<p>1. Navigable waters—definition of. Navigable waters of the United States are those which, whether fresh or salt, form in their ordinary conditions, by themselves, or by uniting with other waters a continued highway over which commerce is, or may be carried on with other States or foreign countries in the customary modésin which such commerce is conducted by water.</p> <p>2. Judicial notice—of ivhat not taken. Judicial notice will not necessarily be taken of whether a stream is navigable or not. This, ordinarily, is a question of fact to be determined by the jury.</p> <p>3. Contract—when void. A contract made in violation of a statute of Illinois is void and unenforceable regardless of whether the statute so declared on merely prohibits the thing contracted to be done.</p> <p>4. Contract—when party other than the United States government cannot raise question of, violating federal statute. Only the United States government can raise the question that a contract providing for the construction of a bridge across a navigable stream, is in violation of the federal statute requiring the consent of the secretary of war to the erection of such a bridge.</p> <p>5. Federal statute—what construction given to. The State courts follow the construction given to federal statutes by the courts of the United States,</p>

<p>1. Accounting—what should he allowed administratrix upon. A disbursement made by the administratrix pursuant to authority granted her by the court of probate should, upon final accounting, be allowed to her notwithstanding the reviewing tribunal might not have authorized the disbursement had its judgment been invoked in the first instance.</p> <p>2. Accounting—what should he allowed administratrix uj/on. Witness fees paid by the administratrix in connection with a hearing had before the court of probate, to determine a matter of heirship, should be allowed to her in her final accounting, especially where the payment ante-dated the application for allowance by about four years and no effort had been made by the objecting parties to fix its status.</p>

<p>1. Books of account—when competent as to weights and measurements. Where one witness testifies that he knew the correctness of the details of weights or measurements or quantities, that he correctly furnished that information to another,, and that other , testifies that he received such information and correctly placed it upon original books of entry, such books themselves become competent evidence.</p> <p>2. Motion to exclude—when preserves nothing for review. A general motion to exclude portions of the testimony of a witness upon the ground of her incompetency to testify thereto, preserves nothing for review where it does not specify the particular part or parts of the testimony sought to be- reached.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of DuPage County; the Hon. Charles A. Bishop,Judge, presiding. Heard, in this court at the April term, 1905.

<p>1. Principal and bail—ichen relation of, ceases. When the right of the bail to arrest the principal ceases before the-liability of the bail has become fixed, the relation of principal and bail is terminated, for the right of the bail to the custody of the principal, and to arrest the principal at will, is an inseparable incident to that relation,</p> <p>2. Bail bond—when discharged. The discharge in bankruptcy of the principal in a bail bond given by him in a civil action before the liability of the bail became fixed, is a discharge of the bond.</p>

<p>1. Bastardy—when instruction in prosecution for. erroneous, Held, under the proof in this case, that an instruction which told the jury that the precise date of conception was not material, was erroneous.</p> <p>2. Bastardy—when conviction in prosecution for, set aside. A conviction of bastardy will be set aside where the question of paternity was contested and the case of the prosecution -rested solely upon the testimony of' the complaining witness, which was rebutted by the defendant’s denial, corroborated to an extent by -medical testimony, where the reputation of the complaining witness for truth and veracity was impeached, and such impeachment in nowise contradicted.</p>

<p>1. Writ of error—when, does not lie. A writ of error does not lie to review a judgment which upon appeal therefrom has been affirmed, notwithstanding the affirmance was for some reason other than a determination of the merits.</p>

<p>1. Writ of error—when, of right. A writ of error is only a writ of right in cases which are prosecuted according to the course of the common law.</p> <p>2. Writ of error—when does not lie. A writ of error does not lie fi;om a judgment of the County Court entered in a contest with respect to the location of a county seat; the judgment of the County Court is final.</p>

<p>1. Appeal—when improperly perfected. Where two parties to a cause pray a joint appeal, and but one of such parties perfects the same, a motion tp dismiss will be allowed.</p> <p>2. Appeal—when irregularity in perfecting, waived. Where the appellee does not move to dismiss an appeal for irregularity in perfecting the same, but, on the other hand, files briefs, the irregularity is waived.</p> <p>3. Information—when properly amended. An information is properly amended where the amendment redounds to the benefit of the defendant.</p> <p>4. Amendment—when making, without leave of court, cannot be objected to. Where an amendment has been made, so far as the record shows, without leave of court, the objection if first made on appeal comes too late.</p> <p>5. Recognizance—when does not discharge. The fact that the information in the prosecution with respect to which the recognizance was given was amended,. does not discharge the recognizance nor release the sureties from their obligation thereon.</p> <p>6. Jurisdiction—when presence of defendant not essential to, in criminal prosecution. The presence of the defendant at the trial is not essential to the jurisdiction of the court in a criminal prosecution where the charge is not a felony, and he appears by attorney and defends.</p>

<p>Certiorari proceeding. Appeal from the Circuit Court of Kankakee County; the Hon. Linus C. Ruth, Judge, presiding. Heard in this court at the April term, 1905.</p>

<p>1. Cross-examination—when, properly restricted. A cross-examiner is properly restricted where he seeks by cross-examination to elicit facts not inquired into upon direct and which go to make up his affirmative defense.</p> <p>2. Application of payments—when creditor cannot malee. Where a creditor wrongfully obtains a sum of money from his debtor, he cannot, without the consent of such debtor, apply such sum in liquidation of any prior claims he may have against him.</p> <p>3. Set-off—when should be pleaded. When the defendant relies upon counter-claims against the plaintiff to liquidate the obligation in suit, a plea of set-off is essential to avail thereof.</p> <p>4. Interest—when may be recovered. Interest may be recovered upon a sum of money obtained by the defendant from the plaintiff by deception.</p> <p>5. Bill of particulars—when need not claim interest. Where interest is recoverable upon a claim by virtue of statute, it is not essential to an allowance of interest that a claim therefor should be made in the bill of particulars filed by order of court.</p> <p>6. Verdict—interest alloivable upon. It is proper for the court, upon entry of judgment, to compute the interest upon the verdict from the time of its rendition and to enter judgment for the amount of the verdict plus the interest, where the jury by their verdict indicate that they intend to allow interest but do not compute the same.</p>

<p>Action of trespass on the case. Error to the Circuit Court of Du Page County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the April term, 1905.</p>

<p>1. Decree of divorce—when cannot be set aside. A decree of divorce cannot be set aside on a mere petition after the lapse of thirteen years and after a bill of review tiled by the petitioner to impeach the same has been decided against him.</p> <p>2. Decree of divorce—when provisions of, for the benefit of the wife, should not be disturbed. The provisions of a decree granting meager aid to the wife who obtained the divorce for the fault of her husband, should not be disturbed after the lapse of many years upon slim evidence as to alleged misconduct of such wife, alleged to have taken place many years prior thereto.</p>

<p>I. Widow’s award—what does not bar right to. The right to a widow’s award is not barred by an ante-nuptial contract by which the wife has agreed to accept whatever provision may be made for her by the will of her husband, followed by the acceptance by her of the provisions of such a will, where neither the contract nor the will provides for the relinquishment of the award.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Lee County; the Hon. Richard S. Farr and, Judge, presiding. Heard in this court at the October term, 1904.</p>

<p>Action of assumpsit. Error to the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the April term, 1905.</p>

<p>1. Garnishment—aot of 1S97, as to executors, construed. The purpose of this aot was to remedy the evil existing prior thereto and should be construed to accomplish that purpose, if compatible with its terms.</p> <p>3. Garnishment—what will not defeat creditor's rights as against heir. The conveyance by an heir of his interest in the real estate left by his ancestor will not defeat a garnishment subsequently instituted in which the executor is served, where the will of the deceased conferred upon the executor a power of sale and the conveyance by the heir, or a cop3r thereof, was not filed in the office of the clerk of the court of probate.</p>

Action on the case for death caused by alleged wrongful' act. Error to the Circuit Court of Boone County; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the April term, 1905.

<p>1. Solicitor’s fees—when should be apportioned in partition proceeding. Solicitor’s fees of the complainant are properly apportioned among parties to a partition proceeding where there was no substantial defense interposed; and thfe examination and approval by defendant’s counsel of the various steps taken in the cause, together with the interrogatories of the widow concerning her dower right, none of which were in hostility to the relief sought, does not constitute such a defense.</p>

<p>Bill for injunction, etc. Appeal from the Circuit Court of Stark County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1905. ’</p>

<p>1. Insurance policy—when action should be instituted by virtue of limitation clause. Where a policy provides that action thereon must be brought within a specified period “ next after the fire,” the time begins to run from the day the fire broke out and not from the date of its extinguish m ent.</p> <p>2. Insurance policy—what does not arrest running of limitation clause in. The commencement of an action and the filing therein of the common counts does not arrest the running of the limitation fixed by the policy for the commencement of action thereon.</p> <p>8. Insurance policy—icihat does not arrest running of limitation clause in. The fact that the policy provides for the appraisement of the loss and gives to the company a specified time for submission of proofs of loss in which to pay the claim, does not arrest the running of the limitation clause as to the time within which action upon the policy must be instituted.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Kane County ; the Hon. Linus C..Ruth. Judge, presiding. Heard in this court at the April term, 1905.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Lake County; the- Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1905.</p>

Action commenced before justice of the peace. Appeal from ti e Circuit Court of Ogle County; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1905.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Winnebago County; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the April term, 1905.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1905.

<p>Action of trover. Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the April term, 1905.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1905.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1905.</p>

Action commenced before justice of the peace. Appeal from the County Court of Peoria County; the Hon. Wilbert I. Slemmons, Judge, presiding. Heard in this court at the April term, 1905.

<p>1. Verdict—when not disturbed. A verdict will not be set aside ?s against the weight of the evidence unless it is clearly and palpably so.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Peoria County; the Hon. Theodore' N. Green, Judge, presiding. Heard in this court at the April term, 1905,

<p>Action on the case for deceit. Appeal from the Circuit Court of Lee County; the Hon. Bichard S. Farrand, Judge, presiding. Heard in this court at the April term, 1905.</p>

<p>1. Indorsee—when delay in presenting discharges. Held, that a delay of five days in presenting a check for payment was, under the facts of this case, sufficient to discharge the indorser of liability.</p> <p>3. Indorsee—what not essential to discharge of. It is not essential that an indorser should have suffered actual damage by the delay of the indorsee in presenting a check for payment in order that such indorser be discharged from liability.</p>

<p>1. Custody of child—what not sufficient ground to deny, to father. The mere fact that the father of a child is a man of small means is not sufficient grounds for denying him its custody.</p> <p>2. Custody of child—roñen parol contract for, invalid. A parol contract by which the father of a child confers the right of custody of such child upon another, is not binding.</p>

<p>1. Exemption—when judgment debtor does not waive. While the defendant in an attachment has the right to obtain the return of the property levied upon by presenting a schedule within ten days after levy, yet his failure to do so does not preclude him after judgment in the suit from presenting his schedule within such statutory period and thereby regaining its return.</p> <p>3. Exemption —how statute providing for, construed. Statutes exempting property from levy.and sale for the payment of debts are not to be strictly construed but should receive such construction as will carry out the obvious purpose of the legislature in enacting them to protect the debtors.</p> <p>3. Exemption—when failure to present schedule does not bar. The failure of a debtor to present his schedule within ten days after levy, as limited by statute, does not bar his right of exemption where the officer making the levy does not comply with the statute providing, among other things, that he shall deliver to such debtor a copy of the writ, with a notice endorsed thereon, signed by himself, notifying the debtor that he must file a schedule of his property within ten days.</p> <p>A Fair cash value—what not evidence of. There Is no presumption of law that the price which property brought at a forced sale is the fair cash market value thereof.</p>

<p>Prosecution for wife abandonment. Error to the Circuit Court of Henry County; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1905.</p>

<p>Contest in court of probate. Appeal from the County Court of Lee County; the Hon. Robert H, Scott, Judge, presiding. Heard in this court at the April term, 1905.</p>

<p>1. Drainage—right of owner of land to construct. The owner of land has the right to improve the fertility of his land by constructing thereon a ditch which does not change the course of the natural flow of the water over the land of others but brings it to their lands by a shorter route and thereby in increased quantities, and this notwithstanding the result is to increase the expense of maintaining their lands for the uses to which they have been put.</p>

<p>Action of trespass. Appeal from the Circuit Court of Marion County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the February term, 1905.</p>

<p>1. Statute of Limitations—section 25 construed. This section of the Statute of Limitations which provides that “ if judgment shall be given for the plaintiff, and the same be reversed by writ of error, or upon appeal; * * * then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after,” has no application to a judgment of reversal with a finding of facts entered by the Appellate Court pursuant to section 87 of the Practice Act,</p> <p>2. Res judicata—when judgment of Appellate Court is. A judgment of reversal with a finding of facts entered by the Appellate Court is conclusive of the cause of action and bars a subsequent suit instituted thereon.</p>

Action on the case for personal injuries. Error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1903.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Marion County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the February term, 1905.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Williamson County; the Hon. Warren W. Duncan, Judge, presiding. Heard in this court at the February term, 1905,

<p>Action of assumpsit. Appeal from the Circuit Court of Alexander County; the Hon. William N. Butler, Judge, presiding. Heard in this court at the February term, 1905.</p>

<p>Action on the case for death -caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Movers, Judge, presiding. Heard in this court at the August term, 1904.</p>

<p>1. Assumed risk—when doctrine of, applies. Where a servant abandons the usual and safe way of doing his work and experiments with a different mode and one which might at any moment become dangerous, he is held to have assumed the risk incident to the method adopted by him.</p>

<p>Action on the case for personal injuries. Appeal from the City Court of Alton; the Hon.' Alexander W. Hope, Judge, presiding. Heard in this court at the February term, 1905.</p>

<p>Action on the case for alienation of affection. Appeal from the Circuit Court of Pope County; the Hon. Warren W. Duncan, Judge, presiding. Heard in this court at the February term, 1905.</p>

<p>1. Assignment of wages—how power to fill blanks in, construed. The power of attorney authorizing the assignee to fill in blanks obtained upon an assignment of wages is strictly construed and the filling of such blanks by the assignee is without authority unless plainly granted by the power.</p>

<p><1. Instructions—when errors in, will not reverse. Notwithstanding instructions given may be subject to criticism a verdict will not be disturbed on appeal where it appears that substantial justice has been done and that the instructions upon the whole fairly presented the law of the case to the jury.</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 August term, 1904.

<p>1. Mortgage—when lien of, subordinated to mechanic’s lien. The lien of a mortgage is subordinated to that of mechanics’ lien claimants where the lien of the mortgage, though prior in time, covered property other than that subject to the lien claims and was released as to such other property after the lien claims attached, notwithstanding the property released was in itself sufficient to satisfy the mortgage debt.</p>

<p>1. Boundary lines—when original survey prevails. The true boundary lines of a subdivision are those established by the original survey with respect to which purchases and sales have been made, notwithstanding the surveyor who laid out the subdivision made a mistake in some of his measurements and in locating some of the lines.</p>

<p>1. Wilful violation of statute—instruction upon negligence en'oneous where recovery can only he upon. It is error to give to the jury an instruction upon the subject of negligence where a recovery is sought and can only be had by virtue of a wilful violation of the statute in question in the case.</p> <p>2. Measure of damages—instruction upon, in action for loss of support., erroneous. An instruction in such an action as follows :</p> <p>“ In estimating the plaintiff’s damages you have a right to take into consideration whatever you may believe from the evidence the plaintiff might have expected in a pecuniary way from the probable earnings of the said Emil Stein at his business or trade, during the residue of his probable life,”—</p> <p>is erroneous, as the damages must be calculated by the jury with reference to the reasonable expectation of benefit from the continuance of life.</p>

<p>1. Waiver— when authority to waive condition of policy appears. Where it-appears that an employee of an insurance company harl power to and did solicit insurance, take applications, deliver policies and collect premiums, his relation to the company is such that his action in waiving a condition of the policy as to the payment of further premium than that expressed in the policy by a written agreement attached thereto prior to the delivery of the policy and the payment of the premium, is binding upon the company.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of St. Chdr County: the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1905.

<p>1. Exception—when not necessary to preserve question for review. It is not necessary for a party to except in order to preserve his right to call in question in the Appellate Court the act of the trial court in sustaining or overruling a demurrer and entering judgment. '</p> <p>2. Declaration—effect of filing additional counts to. The effect of filing additional counts to a declaration is not to abandon the original declaration.</p> <p>3. Judgment—when should not be rendered upon sustaining demurrer to declaration. It is error to render judgment in bar of an action upon sustaining a demurrer to a declaration where there remain on file and at issue other counts of the declaration.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Williamson County; the Hon. Warren W. Duncan, Judge, presiding. Heard in this court at the 'August term, 1904.

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Pulaski County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1905.

<p>I. Vendor—what essential to establish liability for delay in shipment. In order to establish liability against a vendor for delay in shipment, it must be shown that such delay was unreasonable and-resulted from some want of diligence.</p>

Action commenced before justice of the peace.' Appeal from the Circuit Court of St. Clair County; the Hon, R. D. W. Holder, Judge, presiding. Heard in this court at the August term, 1904.

<p>1. Verdict—when not disturbed. A verdict will not be disturbed on appeal where every material requirement of the declaration is supported by'evidence and the state of the whole evidence is such as to warrant the verdict.</p>

<p>1. Instruction—when cannot be cured by others given. Where an. instruction directs the jury, if it shall find certain facts, to render a particular verdict, and does not fully sum up the facts which entitle such verdict, it is incapable of being cured by other instructions given.</p> <p>2. Instruction—must be predicated upon the evidence. Instructions given in a case must be predicated upon the evidence therein.</p> <p>3. Declaration—what element of damages must be alleged in. A declaration in an action for personal injuries must allege the expenditure of money for medical expenses, and the like, if a recovery therefor is sought.</p> <p>4. Instruction—“ at the time of the alleged injury,” held insufficient. This phrase, as applied to the time when the plaintiff must have been in the exercise of due care, held, insufficient under the facts of this case.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Pulaski County; the Hon. William N. Butler, Judge, presiding. Heard in this court at the February term, 1905.

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, 1905.

Action commenced before justice Of the peace. Appeal from the Circuit Court of Marion County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the February term, 1905.

<p>1. Contract—when money cannot be recovered under. Money agreed to be paid for services rendered cannot be recovered unless the performance of such service is established.</p>

<p>1. Mechanic’s urn—when attaches. A mechanic’s lien attaches from the time the contract is made.</p> <p>2. Mechanic’s lien—upon what attaches. A mechanic’s lien attaches to the interests of those who make the contract and to the interests of all those who authorized or knowingly permitted such contract to be made.</p> <p>S. Mechanic’s lien—when estoppel to assert, arises. A mechanic’s lien claimant is estopped to assert priority as against the holder of a mortgage debt who permitted the debt to be created only afterreceiving a statement from such lien claimant which statement did not disclose the lien sought to be enforced.</p>

<p>1. Finding of court—when not disturbed. The finding of the court in an action at law will not be disturbed on appeal as against the weight of the evidence unless it is manifestly so.</p>

<p>Petition in court of probate for leave to sell real estate to pay debts. Appeal from the Circuit Court of Effingham County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1905.</p>

<p>1. Fraternal benefit society—what constitutes contract of insurance by. The constitution, by-laws, application and certificate, all considered and construed together, constitute the contract of insurance of a fraternal benefit society.</p> <p>2. Fraternal benefit society—7iow contract of insurance by, construed. A contract of insurance entered into by a fraternal benefit society is, like all other contracts of insurance, to be construed. most strongly in favor of the insured.</p> <p>3. Fraternal benefit society—effect of incontestable clause contained in insurance contract of. From a consideration of the contract of insurance in this case it is held, that the clause which rendered the same incontestable after the lapse of two years, precluded the interposition of the defense of suicide.</p>

<p>1. Beneficiary—who not eligible as. A woman designated as beneficiary under the description of “wife" is not entitled to the proceeds of a benefit certificate where her alleged marriage to the assured was, at the time of her being named as beneficiary, to her knowledge void, and where she did not at the time of being so named come within the eligible class.</p> <p>2. Beneficiary—who not “dependent” within meaning of by-laws of fraternal benefit society. One who lived with the assured as his concubine is not a dependent person within the meaning of the by-laws of a fraternal benefit society.</p> <p>S. Beneficiary— when change of, not effected. An attempted change of beneficiaries is not effected where the beneficiary sought to be substituted is not eligible as such; in such case the rights of the original beneficiary remain unimpaired.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. R D. W. Holder, Judge, presiding. Heard in this court at the February term, 1905.

<p>1. Election act—section 79 construed. This section, prohibiting the sale of intoxicating liquors on election days, states three distinct offenses, and therefore an information thereunder need not allege the selling of liquor at retail.</p> <p>2, Election act—“ day ” as used in, defined. The wordday ” as used in section 79 of the Election Law, includes as well the hours before the opening and after the closing of the polls as those during which the same are open.</p>

Action on the case for death caused by alleged wrongful act. 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. Finding of court—effect given to, upon appeal. The finding of the court upon the evidence, no less than the verdict of a jury, is conclusive of the facts unless there is error of law* in the proceedings, or unless the finding is so manifestly against the weight and preponderance of the evidence that the reviewing court may say that it is the result of passion, prejudice or mistake. .</p>

<p>1. Jurisdiction—when question of, as to person, waived. The jurisdiction of the court as to the person of the defendant cannot be questioned on appeal where such defendant has demurred to and answered the bill of complaint in the cause.</p> <p>2. Separate maintenance—when proceeding for, cannot be maintained. A proceeding for separate maintenance cannot be successfully maintained where ■ it does not appear that the wife is living separate and apart from her husband without her fault.</p> <p>3. Cross-bill—essential to granting of affirmative relief. A cross-bill is, ordinarily, essential to the granting of affirmative relief.</p> <p>4. - Decree—upon what, must be predicated. A decree must be predicated upon the allegations made and the relief sought.</p>

<p>1. Release— when bill to set aside, cannot be maintained. A bill to set aside a release for fraud in order that an action at law may be instituted, will not be entertained where it appears, as a matter of law, that the plaintiff could not successfully maintain an action at law.</p>

Action commenced before justice of the peace. Appeal from the County Court of Wayne County; the Hon. Isaac W. Ibbotson, Judge, p esiding. Heard in this court at the February term, 1905.

<p>Mandamus proceeding. Error to the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1905.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1905.

<p>Mandamus proceeding. Error to the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1905.</p>

Petition for leave to sell real estate to pay debts. Error to the County Court of Pope County; the Hon. William A. Whiteside, Judge, presiding. Heard in this court at the February term, 1905.

<p>Action commenced before justice of the peace. Appeal from the Circuit- Court of Pulaski County; the Hon. William N. Butler, Judge, presiding. Heard in this court at the February term, 1905.</p>

Action on the case for personal injuries. Appeal from the Circuí; Court of Fayette County; the Hon. Truman E. Ames, Judge, presiding, Heard in this court at the February term, 1905.

<p>1. Guardian’s bond—when recovery cannot be had upon. Recovery cannot be obtained against the sureties upon a guardian’s bond upon the ground that the guardian had never settled where it appears that the plaintiff upon arriving at full age, with full knowledge of her rights, without fraud or misrepresentation, and contrary to the advice of the judge of the court of probate, receipted in full to her guardian without having received the money due her, where, by réason of such action, the sureties upon such bond were induced to surrender security of the guardian then in their hands.</p>

<p>Mandamus proceeding. Appeal from the Circuit Court of Pulaski County; the Hon. Alonzo IC. Vickers, Judge; presiding. Heard in this court at the February term, 1905.</p>

<p>1. Master—when negligence of foreman will not charge. The mere fact that one of a number of servants who are in the habit of working together in the same line of employment for a common master has the power to control and. direct the actions of the others with respect to such employment, will not of itself render the master liable for the negligence of the governing servant resulting in an injury to one of the others without regard to other circumstances; if the negligence complained of consists of some act done or omitted by one having such authority which relates to his duty as a co-laborer with those under his control and which might just as readily have happened with one of them having no such authority, the common master will not be liable.</p>

<p>1. Instructions—must not take from jury question of fact in issue. An instruction is erroneous which tabes from the jury the determination of a question of fact in issue and material to the decision of the case.</p> <p>2. Instruction— when erroneous, will not reverse. An erroneous instruction will not reverse where it is apparent from the verdict itself that the jury disregarded the same.</p>

<p>f. Instruction—upon preponderance of evidence, held erroneous. An instruction in this case is held erroneous with particular reference to the clauses thereof which pertain to the determination of where the preponderance lies as affected by the number of witnesses testifying upon the respective sides, and by the appearance and manner of witnesses while testifying.</p> <p>2. Instruction—what phrases are not equivalents. The phrase, “from, all the other circumstances appearing in the trial,” and the phrase, “all.the evidence in the case,” are not equivalents, and the use of the former instead of the latter is erroneous.</p>

<p>1. Finding of court—when not disturbed. The finding of the court in a trial at law without a jury will not be disturbed as against the weight of the evidence unless clearly and palpably so.</p>

<p>Action of assumpsit. Error to the Circuit Court of Sangamon County; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the May=term, 1905.</p>

<p>Action of assumpsit. Error to the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Edgar County; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>1. Rescission—what not ground for. Where the contract in question provides that a party thereto shall furnish a bond, the furnishing of an objectionable bond is not ground for rescission, if, promptly upon notice, a sufficient bond is supplied pursuant to contract.</p> <p>2. Instructions—must not submit questions of law to jury. Instructions must not submit questions of law for the determination of the jury.</p>

Proceeding in court of probate to sell real estate to pay debts. Appeal from the County Court of Coles County; the Hon. T. N. Coper, Judge, presiding. Heard in this court at the May term, 1905.

<p>Action of assumpsit. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>1. Statute of Frauds—when contract for conveyance of land within. A written instrument for the conveyance of land, signed by the vendor but not by the vendee, is within the Statute of Frauds where the contract is sought to be enforced against the vendee.</p> <p>2. Contract—when insufficient as bar gain -and sale of land. A contract which merely provides that the vendor shall furnish " a warranty deed and clear title,” is insufficient as a contract for the sale and conveyance of land.</p> <p>3. Contract—when not specifically enforced. A contract which is not clear, certain, definite and unequivocal will not be specifically enforced in equity.</p>

<p>1. Instructions—must not submit questions of law to jury. It is error to leave to the jury the determination of the question as to what constitutes a contract.</p> <p>2. Contracts—express and implied, defined. Express contracts axe those in which the terms of the contract or agreement are openly and fully uttered and avowed at the time of making, while an implied contract, in fact, arises where there is not an express contract but there is circumstantial evidence showing that the parties did intend to make a contract.</p> <p>3. Assumpsit—when instruction as to right of recovery in, erroneous. An instruction which tells the jury that in order to recover for board and services it is necessary that an express contract be established, is erroneous inasmuch as recovery may be predicated upon an implied one.</p> <p>4. Instructions—must not be contradictory. Instructions are erroneous which contradict each other upon material questions.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Sangamon County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1905.

<p>1. Insurance policy—when coming in contact with poisonous substance will not defeat recovery upon. The fact that a physician after receiving an injury comes in contact with a poisonous substance, will not defeat recovery notwithstanding the policy excludes injuries or death resulting from coming in contact with such substances.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Sangamon County; the Hon. George W. Murray, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>1. Common counts—when recovery maybe had under. Becovery may be had under the common counts where the plaintifí has fully performed and nothing remains to be done by the defendant but the payment of money.</p> <p>2. Warranty—when allegation of fulfillment of, not essential to recovery of purchase price. The allegation that a heating apparatus furnished pursuant to contract fulfilled the warranties of such contract is not essential to recovery of purchase price; the failure of the apparatus so to fulfill the contract provisions is matter of affirmative defense.</p>

<p>Action of trespass. Appeal from the Circuit Court of Ford County; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the May term, 1905.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1905.

<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, 1905.</p>

<p>1. Default—when motion to set aside, properly denied. A motion to set aside a default is properly denied where it appears that the failure of the defendant to plead was due to his gross neglect.</p> <p>2. Default—when counter-affidavits competent on motion to set aside. On a motion to set aside a default, counter-affidavits as to the negligence of the defendant in failing to plead, are competent.</p>

<p>1. Newlv discovered evidence—when, ground for neiv trial. Newly-discovered evidence is ground for a new trial where such evidence is directly in conflict with that of the plaintiff, who was successful, and, if true, would have tended to show that he was not in the exercise of due care for his own safety at the time of the injury complained of, and is of so material and conclusive a character that it would probably lead to a different result upon a new trial.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Thomas M. Harris, Judge, presiding, Heard in this court at the May term, 1905.

<p>1. Replevin—when demandnot essential to maintenance of. Where the possession of the property sought to be replevied has been wrongfully obtained, no demand is necessary to the maintenance of the action.</p> <p>2. Fraudulent conveyance — what essential to constitute, as against third party. To constitute a fraudulent conveyance, which may be set aside at the instance of a third party, it must appear that both vendor and vendee participated in the fraud.</p>

<p>Bill for specific performance. Error to the Circuit Court of Macon County: the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1905.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Greene County; the Hon. Owen P. ThompSON, Judge, presiding. Heard in this court at the May term, 1905.

<p>Mechanic’s lien proceeding. Appeal from the Circuit Court of Sangamon County; the'Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>1. Creditor’s bill—what essential to maintenance of bill in nature of. It is essential to the maintenance of a bill in the nature of a creditor’s bill, that it appear that the complainant has exhausted his remedy at law.</p>

<p>1. Public policy—when contract for exemption from liability void as against. Public policy will not permit a common carrier to contract for exemption from liability for loss or damage resulting from the failure on its part, or that of its servants, to exercise ordinary care in the transaction of its business.</p>

<p>1. Lease—of mining property, construed. In this case a lease of mining property providing, among other things, that at the end of the term the lessor should purchase permanent improvements, etc., made pursuant to .the lease, various questions arising under the lease and the particular facts of the case as to what the lessor was liable to pay for, and what not, are considered and determined.</p> <p>2. Lessor—extent of obligation of, to maintain demised premises in condition received. A tenant for years is only bound to treat the premises in such manner that no substantial injury shall be done them through his negligent or wilful misconduct, and must make fair and tenantable repairs, but is not bound to rebuild premises which have become ruinous or accidentally destroyed by fire; neither is he liable for mere wear and tear of the premises, nor bound to replace any portion thereof worn out by time.</p> <p>3. Master’s finding—when conclusive upon court. The finding of a master in chancery approved by the chancellor, where not against the manifest weight of the evidence, is conclusive upon the Appellate Court upon review.</p>

<p>1. Proofs of loss—when presentation of.ivitlvin time specified in policy, waived. Where it appears by the negotiations between the parties after the loss that no dispute existed between them with respect to the liability, except as to the amount, the presentation of proofs of loss within the time provided by the policy is waived,</p> <p>2. Arbitration—when insured not responsible for failure to obtain. Where pursuant to the provisions of the policy the insured appointed an appraiser and made repeated efforts to agree with the appraiser designated by the company upon an umpire, he cannot be held to have been responsible for the failure to secure an appraisement where an umpire agreed upon has refused to act, stating his incompetency, and then upon the personal solicitation of the appointee of the company agreed to act. Under such circumstances the insured is justified in refusing to proceed with the appraisement with such person acting as umpire.</p> <p>3. Verdict—when not disturbed as excessive. Notwithstanding a verdict may appear large, yet the Appellate Court will not set aside the same as excessive where it does not appear to have been the result of passion, prejudice or mistake.</p>

<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, 1904.</p>

<p>1. Cross-examination—what proper upon. Questions should bopermitted which pertain to the subject-matter of the direct and relate to evidence material to the issue.</p> <p>% Cross-examination—impeaching questions competent upon. Upon cross-examination a party should be allowed to lay the-foundation for the impeachment of a witness.</p> <p>3. Ownership—what evidence competent upon question of. It is competent to show in connection with the question of ownership the statements in disparagement of title made by the vendor prior to the time when it is claimed he parted with bis title.</p>

<p>Action in trespass. Error to the Circuit Court of Champaign County; the Hon. Solon Philbriok, Judge, presiding. Heard in this court at the November term, 1904.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Vermilion County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>Injunctional proceeding. 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>

<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, 1905.</p>

<p>I. Trespasser—extent of right of owner of land to eject. The owner of land has a right to eject a trespasser thereon; where in so doing he employs more force than is reasonably necessary to that end, he is guilty of trespass.</p>

<p>1. Insurance policy—when defense of death resulting from use of intoxicating liquors not waived. The fact that an insurance company may by conduct have waived the right to cancel a policy because of the intemperate use by the insured of intoxicating liquors, does not affect its right to defend against an action upon such policy on the ground that the death of the insured resulted from the effects of intoxication.</p> <p>2. Judgment—when entry of, proper, notivithstanding plea of general issue remains undisposed of. The entry of judgment for the defendant is proper notwithstanding a plea of general issue remains on file and undisposed of, where the plaintiff abided, after demurrer sustained, by his replication to a special plea which presented a complete defense.</p>

<p>1. Repair—when lessor liable under obligation to. The lessor is under an obligation to keep in repair all those portions of premises not demised and which are essential parts of the entire building, as, for instance, the roof and chimneys.</p>

<p>1. Creditor’s bill—ichen barred by laches. Where no execution upon a judgment at law, made the basis of the bill, was issued to the county in which the judgment debtor continuously resided until nearly seven years after the rendition of such judgment, the defense of laches applies, at least so far as the transfer of personal property is concerned.</p>

<p>Action of .assumpsit. Error to the Circuit Court of Pike County; the Hon. Harry Hiqbee, Judge, presiding. Heard in this court at the May term, 1905.</p>

<p>Bill for redemption. Appeal from the Circuit Court of Edgar County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1904.</p>

<p>1. Injunction—what essential to maintenance of. In order to maintain a bill for injunction it is essential that the complainants aver either an interest in the subject-matter or a damage resulting or likely to result from the alleged misconduct or threatened misconduct of the defendants.</p> <p>2. Injunction—verification of, held insufficient. A verification of a bill for injunction as follows : “ F. E. Leeds being first duly sworn on his oath states that he hás read the foregoing bill and that the facts there stated are true except in so far as the same are stated .upon information and belief and of those he believes to be true,”—is insufficient.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. James W. Craig,. Judge, presiding. Heard in this court at May term, 1905.

<p>1. Trespass—duty of owner of stock to prevent. The common law rule that the owner o£ stock is bound to keep the same from trespassing upon the close of another at his peril, is in force in this State, except as between adjoining land owners required by statute to .construct partition fences.</p> <p>2. Trespass—when oumer of stock not liable for. Where the fence claimed as defective was to have been jointly maintained by the plaintiff and the defendant, one part thereof by each, it is essential, in order for the plaintiff to recover of the defendant for the trespass of the latter’s stock, that it be shown that the trespass complained of was the result of the defect in the part of the fence which was to be maintained by the defendant.</p> <p>3. Demurrer—when action of court in overruling, cannot be urged as error. The action of the court in overruling a demurrer cannot be urged as error where the complaining party has not abided by such demurrer.</p> <p>4. Expert testimony—when competent, when not. In an action to recover for the death of a boar, it is competent to show by witnesses having special knowledge on the subject the natural disposition of boars in the same enclosure to fight each other, and whether the wounds and cuts appearing on the boar in question might or could have been inflicted by the tusks oí a boar; but it is not competent to show by so-called expert witnesses that such cuts and wounds were in fact inflicted by a boar, or to show the purpose of nature in providing boars with tusks.</p>