Volume 123 — Illinois Appellate Court Reports

<p>Bill in equity under section 132 of Criminal Code. Appeal from the Circuit Court of Macon County; the Hon. William C. Johns, Judge, presiding.</p>

<p>1. Town meetings—where to be held. A town meeting, either annual or special, should be held at the place appointed in the notice for the holding thereof and should not be held at several different places in the town upon the same day.</p> <p>2. Town meeting—how to be conducted tohere purpose of, is authorization to borrow money. Where the purpose of convening a special town meeting is to obtain authority to borrow money, it is essential that the proposition submitted to such meeting should be voted for and determined under the general election laws of the State.</p> <p>3. Bill of complaint—how construed. A bill of complaint is to be construed most strongly against the pleader, and where the bill does not contain any allegation with respect to a material fact, such material fact will be presumed to be such as will sustain the action of the court in sustaining a demurrer to the bill.</p>

<p>1. Telegram—what essential to fasten liability for wrongful transmission of. While it is true that the alteration of a telegraphic dispatch in transmitting it is prima faeie evidence of the negligence of the telegraph company, yet it is essential, before liability can be fastened upon the company, that it appear affirmatively, in addition to the error, that damages resulted therefrom as a direct, natural and proximate, consequence of the act of the company.</p>

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

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

<p>1. Promissory note—what does not ratify execution of.' Evidence of the willingness to pay notes does not warrant the inference of a ratification of signatures thereto which are admittedly forged.</p>

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

<p>Action on the case for personal injuries. Error to the Circuit Court of Edgar County; the Hon. James W. Craig, Judge, presiding.</p>

<p>Action on the case for injuries to personal property. Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding.</p>

<p>1. Finding of court—a different finding cannot be substituted for. A court after entering its finding cannot set the same aside and enter a new and different finding without a second trial intervening.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Hancock County; the Hon. John A. Gray, Judge, presiding.</p>

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

<p>1. Highway commissioners—when notice given by, valid. A notice given by highway commissioners pursuant to statute is valid, notwithstanding an authorizing resolution was not made a matter of record; except -where the statute specifically so provides, highway commissioners may act without an antecedent record being made.</p> <p>2. Obstruction op highway—when telephone company guilty of. A telephone company is guilty of obstructing a public highway where it places its poles along such highway and upon the same at different places than those directed by the highway commissioners by notice given pursuant to section four of the act entitled “An act relating to the powers, duties and property of telephone companies, in force July 1, 1903.”</p>

<p>Distress for rent. Appeal from the Circuit Court of Logan County; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Instructions — should not submit questions of law to jury. Instructions arc erroneous which submit to the jury the determination of questions of law,</p> <p>3. Admission of evidence—when ground for reversal notwithstanding subsequently stricken out. The erroneous admission of evidence, subsequently stricken out, is sometimes, in connection with other error, ground for reversal.</p>

<p>1. Cross-examination—what proper upon. Questions which tend to elicit the interest of a witness and his relations to the parties, are competent and should be permitted upon cross-examination.</p> <p>2. Cross-examination—when improper restriction of, will not reverse. Where a cross-examination has been improperly restricted, a reversal will not be ordered where it appears that such action did not affect the result.</p>

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

<p>1. Personal property—when title to, vests in consignee. When goods sold are delivered by the seller to a common carrier, properly consigned to the purchaser, the title thereto vests in the purchaser; the carrier becomes the agent of the consignee and if loss of the goods occurs before actual delivery of the same to the consignee, it is the consignee’s loss and not the consignor’s.</p> <p>3. Common carrier—what does not discharge liability of, for nondelivery. A mistake in the address of the consignee which does not mislead the carrier, does not absolve it from liability for non-delivery.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of McLean County; the Hon. Thomas M. Harris, Judge, presiding.</p>

<p>1. Verdict—when set aside. A verdict which is manifestly against the weight of the evidence will be set aside on appeal.</p>

<p>Mandamus proceeding. Appeal from the Circuit Court of Greene County; the Hon. Bob.írt B. Shirley, Judge, presiding.</p>

<p>1. Sheriff—when not entitled to commissions. A sheriff is not entitled to commissions on a sale not conducted by him, which sale was made pursuant to the chattel mortgage given to secure the debt represented by the judgment, notwithstanding the amount of such sale was credited upon the execution.</p>

<p>Action upon recognizance. Appeal from the Circuit Court of Grundy County; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>1. Attorney’s fees—when sum agreed upon cannot he recovered. An attorney cannot recover the amount agreed to be paid him for the conduct of a cause where the client settles the same before the attorney has fully performed; in such a case the attorney is only entitled to the reasonable value of the services actually rendered. .</p> <p>2. Attorney and client—when contract for fees will not be enforced. A contract for attorney’s fees will not be enforced where it appears that the attorney did not advise his client in good faith and thereby obtained an agreement for compensation which was excessive.</p>

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

<p>Action of assumpsit, Appeal from the County Court of Livingston County; the Hon, Arthur W, Deselm, Judge, presiding.</p>

<p>Contest in court of probate. Appeal from the Circuit Court of Livingston Count)'; the Hon. Colostin D. Myers, Judge, presiding.</p>

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

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

<p>1. Alienation of affections—married woman may maintain action for. A cause of action exists in favor of a married woman where the affections of her husband have been wrongfully alienated.</p> <p>2. Alienation of affections—to/tai essential to recovery in action for. In order to recover in an action for alienation of affections it is essential that it be established that such alienation arose, at least in part, through the fault or by reason of the efforts, to that end, of the defendant.</p>

<p>Í. Leave to amend—is not ipso facto an amendment. Where no amendment is actually made pursuant to a leave granted to amend, the document sought to be amended remains unaffected.</p> <p>3. Agent—who not, for purposes of service upon corporation. A person not hired or paid by a corporation and who is not subject to the orders of such corporation and who cannot be discharged by it and who performs no function in its behalf, is not such an agent as represents it for purposes of service of summons.</p> <p>3. Agent—ivho not, for purposes of service upon corporation. Tho agent of a lessee railroad corporation is not the agent of the lessor corporation for the purpose of summons upon the latter corporation.</p> <p>4. Agent—who not, for purpose of service upon foreign corporation. An agency relation may in some cases arise or be established as a legal result from the facts, although contrary to the avowed intention of the parties; but no such rule can have any application to cases where it is sought to reach foreign corporations by service on a local agent. Such agent must be one actually appointed by and representing the corporation as a matter of fact, not one created by construction or implication, contrary to the intention of the parties.</p> <p>5. Assessment of damages— second jury not required. Where an issue upon a plea of abatement is submitted to a jury for determination, such jury may, likewise, by the same verdict, assess the plaintiff’s damages if it find the issues on the plea for the plaintiff.</p>

<p>Bill to charge a legacy upon real estate. Appeal from the Circuit Court of Rock Island County; the Hon. Emery C. Grates, Judge, presiding.</p>

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

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of DuPage County; the H011. Linus C. Ruth, Judge, presiding.

<p>1. Partition proceeding—appeal in, lies to Supreme Court. In a proceeding to partition real estate a freehold, ordinarily, is involved and an appeal from a decree entered therein should be taken to the Supreme and not to the Appellate Court; where, however, a freehold is not involved in the subject-matter of the appeal, the Appellate Court has jurisdiction.</p>

<p>1. Miners’ Act—what wilful violation of, sufficient to authorize recovery for personal injuries. The conduct of a mine owner in failing to examine his mine upon Sunday and in permitting his men to enter and work therein without such prior examination, is a wilful violation of the Miners’ Act upon which a recovery for personal injuries may be predicated.</p> <p>2. Admission—when competent against master. A statement material to the issue or an admission with respect to the subject-matter in dispute made by an employee whose position is such as to make him the representative of his master, is competent against such master.</p> <p>3. Master—when proof of knowledge of danger competent against. While it may not be an essential to recovery, it is nevertheless competent to show that the master, through his representative, had knowl,edge, prior to the accident; of the danger which resulted therein.</p> <p>4. “ Proximately contributed to "—held, not erroneous. The use of the phrase “ proximately contributed to ” in lieu of that of “ proximately caused,” held, not erroneous under the facts of this case.</p>

<p>Action on the case for slander. Appeal from the Circuit Court of Stephenson County; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>Bill in equity to set aside judgment at law. Appeal from the Circuit Court of Bureau County; the Hon. Richard M. Skinner, Judge, presiding.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Kendall County; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>1. Warranty deed—construed. A warranty deed containing the following reservation: “ except an undivided half of all coal that may be thereon,” held not necessarily to constitute an assertion of the ownership of the interest excepted, but to be equally susceptible of the construction that the grantor did not own and, therefore, did not seek to convey such excepted interest.</p> <p>3. Assumpsit—when does not lie. Assumpsit does not lie by one co-tenant to recover of another co-tenant rents accruing from the estate in common.</p> <p>3. Assumpsit— when does not lie. Assumpsit does not lie where the ’ real question to be litigated is one of title to real estate.</p>

<p>1. Warranty—what does not constitute, in insurance law. A representation made in an application for insurance which does not appear to have been material to the risk or to have been fraudulently made, does not constitute a warranty.</p> <p>2. Warranty—what dues not constitute, in insurance law. The mere use of the word “warranty” in an application for insurance does not necessarily make a representation, not otherwise a warranty, such in law.</p> <p>3. Insurance policy—what not cancellation of. Held, from the facts in this case, that the retention of a premium payment for a period of thirteen days, constituted an election by the company to keep a policy previously canceled upon settlement of a loss, as still in force.</p>

<p>Action in trover. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>1. Trial de novo—when should not be awarded. A trial de novo should not be awarded where the Appellate Court reverses and remands a cause solely for the error of the trial judge in sustaining a motion in arrest of judgment.</p> <p>3. Negligence—prima facie evidence of. Proof of the happening of an accident unexplained makes a prima facie case of negligence where the apparatus involved is wholly under the control of the defendant carrier.</p> <p>3. Instructions—must be predicated upon' the evidence. Instructions which have no evidence to support their theories are erroneous.</p> <p>4. Instructions—must not take from jury the determination of issues of fact. Instructions should not invade .the province of the jury and direct them how they should find a particular fact in issue.</p> <p>5. Verdict—when not exeessive. A verdict for §10,000 is not excessive where the plaintiff, a woman of the age of about twenty-two years, sustained a permanent injury to her ankle which rendered her a cripple.</p>

<p>1. Bill of exceptions—when “plaintiff” will be read “defendant.” "Where it is apparent from the context that the word, ‘‘defendant” was inadvertently used in the bill of exceptions instead of the word “plaintiff” the intended meaning will be adopted on appeal.</p> <p>2. Libel—what constitutes. It is a question for the jury to determine whether it is libelous to publish an article reciting the immoral and suicidal acts of a person whose name is given and whose supposed likeness is printed in connection with the article, where such likeness is not that of the person named, but is that of an altogether different person who was in no wise intended to be referred to in the article.</p> <p>3. Variance—when not established. Held, that a variance between the declaration, which was in libel, and the proof did not appear.</p> <p>4. Motions to exclude—effect of. Motions to exclude are in the nature of demurrers to the'evidence, and hence they admit not only all the testimony proves, but all it tends to prove.</p>

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

<p>,1. Insurance policy—what component pari of. An application for insurance, a copy of which is attached to the policy issued pursuant thereto, is a part of the policy where such application contains statements of fact which constitute warranties.</p> <p>2. Explosives—ivhat construed as agreement not to tise. The following question and answer contained in an application for an insurance policy is construed as constituting an agreement not to use explosives : “ Q. Any explosives or chemicals used except as herein stated ? A. No.”</p>

<p>Bill to redeem. Error to the Circuit Court of Cook County; the Hon. Richard S. Tdthill, Judge, presiding.</p>

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

<p>1. Bill fob discovery—te7iere may waive answer under oath. A bill which seeks other relief in addition to a discovery may properly waive answer under oath.</p> <p>2. Bill fob discovery—when equity has jurisdiction to entertain. Equity has jurisdiction to entertain a bill for a discovery and for an accounting notwithstanding the- complainant might have sued at law to recover the value of the property involved, admitted by the defendant to have been in his possession and disposed of by him, where by virtue of snob proceeding other property than that so admitted to have been disposed of might be discovered; and the jurisdiction is not lost where no such additional property is discovered.</p> <p>' 3. Answer—defendant not permitted to deny averment of. It is not competent for a defendant to deny facts admitted by his answer.</p> <p>4.1 Admissions—what competent in explanation of. It is competent in order to explain an admission proven to show the entire conversation in which such alleged admission took place.</p> <p>5. Gifts inter vivos-^ivhat essential to establish. In order to establish a gift of personal property inter vivos the delivery must appear to have been absolute, that is to say, the donor must appear not only to have parted with the possession of the property, but he must likewise appear to have relinquished to the donee all dominion and control over it.</p>

<p>Mechanic’s lien proceeding. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh. Judge, presiding.</p>

<p>1. Fellow-servants—who not. One who at the time of the accident was engaged in the particular business of converting iron into steel, is not the fellow-servant of a co-employee who at such time was engaged in cleaning and caring for certain tools used in such occupation (if such co-employees were not brought into habitual consociation, as they were not in this case), inasmuch as such relationship did not constitute a direct co-operation in a particular business in the same line of employment.</p> <p>2. Instructions—how to he construed. Instructions are to be construed as a series, making one entire charge, and the omissions or inaccuracies of one may be cured by the contents of the others, or some of them.</p> <p>3. Contributory negligence—what does not constitute, as a matter of lau>. Where one without his own fault is, through the negligence of another, put in such apparent danger as to cause him terror, loss of self-possession and bewilderment, and as a natural result thereof he, in attempting to escape, puts himself in a more dangerous position, he is not, as a matter of law, chargeable with contributory negligence that will prevent him from recovering damages for the injury.</p>

<p>1. Alighting—duty of carrier to passengers in act of. Where passengers are alighting from a train at a point where it is necessary that they cross other tracks of the carrier, it is the duty of the operatives of a train approaching upon another track from the opposite direction, to exercise a degree of care commensurate with the situation and the, danger, and it is negligence to operate such a train at a rate of • speed from twelve to fifteen miles per hour at the point where such alighting passengers are required to cross, and are actually crossing.</p> <p>2. Contributory negligence—idhat not, as a matter of law.- It is not contributory negligence as a matter of law for one crossing a railroad track not to look to ascertain whether a train is approaching; but whether it is contributory negligence is a question for the jury, to be determined from all the facts and circumstances in evidence.</p> <p>3. Contributory negligence—when passenger not guilty of, in alighting from railroad train. A passenger is not guilty of contributory negligence in alighting from a train upon which he has been carried as a passenger at a point where he was expressly directed by the carrier to alight.</p> <p>4. Minor—degree of care to be exercised by. A minor is only bound to use such care as children of his age, capacity and intelligence are capable of exercising.</p> <p>5. Verdict—when not excessive. A verdict for 15,000 rendered in an action instituted for death caused by the alleged wrongful act of the defendant, is not excessive where it appears that the plaintiff's intestate at the time of the accident was fourteen years of age, had been attending school since the age of six, was in the eighth grade at the time of his death, healthy, bright and intelligent, and left him surviving a father, mother and a sister aged twenty-one years.</p>

<p>Bill in nature of creditor’s bill to set aside conveyance. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>1. Divorce—token jurisdiction to grant, exists. Jurisdiction to grant a decree of divorce exists where the offense complained of was committed in this state and the bill is filed in the county in which the complainant resides, notwithstanding such complainant may not have resided in the state for one whole year next preceding the filing of the bill.</p> <p>2. Incompetent evidence — presumption that chancellor disregarded,. Where there is sufficient legal admissible evidence appearing in the record to sustain the findings of the chancellor, it will be presumed that he disregarded all incompetent evidence, notwithstanding he may, in summing up his reasons for entering the decree, have commented upon a portion of such incompetent evidence.</p> <p>3. Finding of chancellor—token not disturbed. It is a well-established rule that the chancellor who saw and heard the witnesses is better qualified than is an appellate tribunal to judge of the weight to be given to their testimony, and where the evidence of the witnesses is conflicting the decree will not be disturbed on appeal on a question of fact, unless it appears that the findings of fact are clearly and palpably wrong.</p> <p>4. Adultery—held established. Held, from the particular evidence in this case, that the adultery charged in the bill was established by the evidence.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding.</p>

<p>1. Finding of judge—idhen not disturbed. The finding of the trial judge will not be set aside on appeal where the evidence is conflicting, unless the same is palpably against the weight of the evidence.</p> <p>3. Judgment—when not excessive. A judgment for §640 rendered in favor of the father of a minor child who had received personal injuries, held not excessive where predicated upon the doctor’s bill for which the father was liable and upon the wages which prior to the injury had been given by the boy to his father which were lost by reason of the injury.</p> <p>3. Judgment—when estoppel to complain of particular item entering into, arises. Where a particular-judgment is made up of several items, one of which upon the trial was conceded, the party making such concession cannot, upon appeal, question such item when allowed.</p>

<p>1. Voluntary association—when defense of immunity from suit incompetent. Held, that the defendant in this case was estopped from asserting that it was a voluntary association and not subject to suit as if it were a corporation, and likewise that it could not interpose the defense that it was not subject to suit, conjointly with the defense on the merits.</p> <p>2. Insurance benefits—ivhen recovery may be had under common counts. Where the obligation of a fraternal organization to pay death benefits has been established by the evidence and nothing remains of the contract which existed between the deceased member and the society but the payment of money, recovery may be had under the common counts.</p> <p>3. Fraternal benefit society—when constitution and by-laws of, may be amended. Where provision for the payment of death benefits is made by constitution and by-la'ws adopted after a member has joined an organization, which rules provide for the right of amendment, the right of amendment exists irrespective of the consent of the member or his previous agreement with respect thereto.</p> <p>4. Beneficiaries—when amendment of constitution as to, not retroactive. An amendment of the constitution of a fraternal benefit society with respect to who shall be named as beneficiaries, held not retroactive in its operation.</p> <p>5. Amendment—when, sufficiently appears. An amendment striking out all plaintiffs but one sufficiently appears where there is an order of record as follows: “All papers and proceedings in the cause” were “amended by discontinuance as to all plaintiffs except Louise Huecker."</p> <p>6. Default—when member of fraternal benefit society not in. Held, from the particular evidence adduced in this case, that the member whose death gave rise to the suit, was not in default, and that the society was not entitled to urge a forfeiture.</p>

<p>1. Short cause calendar—when refusal to strike came from, ground for reversal. It is reversible error improperly to deny a motion made in apt time to strike a case from the short cause calendar and to proceed with it's trial over the protest of the objecting party.</p> <p>2. Short cause calendar—when motion to strike case from, not in apt time. A motion made several weeks after a case has been placed on the short cause calendar and on the day the case is called for trial, is not in apt time and is properly overruled.</p> <p>. 3. Short cause calendar—when case properly placed upon. Held, that this case was properly placed upon the short cause calendar, and that the affidavit filed upon which the placing of the same on such calendar was predicated was an original and not a copy.</p> <p>4. Short cause calendar—when cause at issue within meaning of rule requiring is ,es to be formed prior to placing same upon such calendar. Where the only pleas under which the defendant could have introduced evidence were at issue or in such condition that an issue would be presumed by going to trial, the cause is at issue within the meaning of the rule, notwithstanding a demurrer to an obviously and inherently bad plea and a motion to strike a plea equally ineffectual, remain of record undisposed of.</p> <p>5. Judicial notice—of what taken. Courts of this state will take judicial notice of the signature and notarial seal of a notary public.</p> <p>6. Administrator’s bond—xvhat not essential to suit upon. A de-* mand and the lapse of thirty days are not essentials to a suit upon an administrator’s bond. Section 113 of the Administration Act which provides for demand, et cetera, is limited in its operations by section 13 of chapter 103 and only applies where the administrator is to be proceeded against by attachment of his person.</p> <p>7. Administrator’s bond—what fixes extent of liability upon. An order of the court of probate which determines and settles the sums due to the various beneficiaries, likewise determines and fixes the amounts for which the administrator’s bondsmen are liable in the event of non-payment.</p> <p>8. Administrator—when liable for interest. It is by virtue of section 114 of the Administration Act and not by virtue of an affirmative order that an administrator becomes liable for interest upon assets remaining in his hands undisposed of after the lapse of two years and six months from the date of his letters. An order of -court is essential to discharge him from the liability to pay such interest.</p> <p>9. Administration Act—section 114 construed. This section which provides for the payment of interest by the administrator upon assets remaining in his hands undisposed of after the lapse of two years and six months from the date of his letters, is not penal, and such interest is not a penalty, and consequently the bondsmen of the administrator are liable for its payment.</p> <p>10. Newly discovered evidence—essentials of affidavit setting up, as ground for new trial. Affidavits in support of a motion for a new trial upon the ground of newly discovered evidence must be full, precise, detailed and circumstantial, and it must appear therefrom that the witness or witnesses relied upon is or are ready to testify, and that his or their personal affidavits are produced or good cause shown for n on-produ ction.</p> <p>11. Newly discovered evidence—what essential to application for new trial on ground of. An application for a new trial upon the ground of newdy discovered evidence will fail, unless it appear that there has been no negligence and no lack of diligence in not seeming the testimony on the trial.</p> <p>12. Newly discovered evidence—when character of, prechides granting new trial. A new trial should not be granted in any case on the ground of newly discovered evidence, if the evidence, when admitted, would be untrustworthy and suspicious.</p>

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Mandamus proceeding. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p>

<p>1. Assumed risk—when doctrine of, applies to servant remaining in dangerous place of employment. A promise by the master to remove a servant to a safer place of employment, if he will continue at the place of employment complained of for a short period of time, does not relieve the servant of the application of the doctrine of assumed risk.</p>

<p>Proceeding to enjoin enforcement of judgments. Appeal from the Superior Court of Cook County; the Hon. Theodore Bkentano, Judge, presiding.</p>

<p>1. Fellow-servants—who are. An engine crew and common laborers held, in this case, fellow-servants upon the principle that they were actually employed by the same master and that the work of each had for its object the accomplishment of a common end sought to be performed by the united efforts of all.</p> <p>2. Declaration—when charge of negligence sufficient. Held, upon the particular averments of the declaration involved in this case, that it was sufficient to sustain a recovery predicated upon negligence in failing to notify a servant that the car upon which he was working was about to be moved.</p>

<p>Mandamus proceeding. Appeal from the Superior Court of Cook County; the Hon. Elbridgke Hanecy, Judge, presiding.</p>

<p>1. Application for insurance—how ambiguities in, construed. Ambiguities in an application for insurance are to be resolved against the insurer.</p> <p>2. Application for insurance—particular question contained in, construed._ A question in an application for insurance as follows: “How long since you consulted a physician?” construed as susceptible of the interpretation, “How long since you first consulted a physician.”</p> <p>3. Application for insurance—ivhen ansivers to questions do not constitute loarranties. Unresponsive answers to questions contained in an application for insurance do not constitute warranties.</p> <p>4. Application for insurance—what sufficient answer to question contained in. The giving of the name and address of one physician to a question as follows: “Name and residence of such physician?” held sufficient, notwithstanding the applicant may have consulted other physicians than the one named.</p>

<p>1. Execution—money in hands of sheriff subject to levy of. Money-in the hands of a sheriff belonging to the ¿xecution debtor which has come into the hands of such sheriff as the result of a sale under an execution in favor of such execution debtor, is subject to an execution against him.</p>

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

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

<p>Action of assumpsit. Appeal from the Circuit Court of Lee County; the Hon. Richard 8. Farrand, Judge, presiding.</p>

<p>1. Release—when may be impeached at law for fraud. A release from liability under a benefit certificate may be impeached at law for fraud in procurement.</p> <p>2. Decree in equity—when will not bar action at law. A decree in equity dismissing a bill upon the ground that the remedy of the complainant is at law, will not bar a subsequent action at law predicated upon the same cause of action.</p> <p>3. Res judicata—tohen plea of, insufficient. A plea setting up that the same cause oí action has been determined against the plaintiff in an action in equity, is fatally defective which does not show that the ground upon which the case was determined was such as to conclude the plaintiff at law.</p> <p>4. Premium—when fraternal "benefit society éstopped to deny validity of extension of time of payment of. A fraternal benefit society is estopped to deny the validity of an extension of the time of payment of a premium upon the ground that such extension was in violation of the original contract of insurance.</p>

<p>1. Motorman—duty of, to stop car. It is the duty of a motorman to stop or to reduce the speed of his car when it is apparent that teams in front thereof are frightened or have become unmanageable.</p> <p>2. Jury—when case should be submitted to. Where the facts proven, together with all inferences to be drawn therefrom, tend to support the plaintiff’s declaration, the case should go to the jury.</p>

<p>1. Cross-examination ^-latitude of, in examination of impeaching witness. In cross-examining a court reporter who has been called for the purposes of showing statements given by a witness in a former trial, it is proper upon cross-examination to permit him to testify to other questions put and answers given than those elicited for the purposes of impeachment, and this regardless of the counsel who asked such questions.</p> <p>3. Instructions—lehen errors in, cannot be complained of. Errors in instructions cannot be complained of where like errors existed in the instructions given by the court at the instance of the complaining party.</p>

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

<p>I. Will—“uponfinal distribution,” as used in, construed. Held, from the entire provisions of the will in controversy, that the phrase “ upon final distribution ” did not mean upon final distribution of the personal estate of the testator, made pursuant to order of the court of probate, but referred to a final distribution following the making of certain conveyances of real estate provided for in the will.</p>

<p>1. Remarks of counsel—how objections to, cannot be preserved. Objections and exceptions to the remarks of counsel cannot be preserved for review by their mere incorporation in a motion for a new trial.</p>

<p>Prosecution under Dram-Shop Act. Error to the Circuit Court of Ford County; the Hon. F. M. Harris, Judge, presiding.</p>

<p>1. Promissory note—when merged in decree. A promissory note secured by mortgage becomes merged in a decree of foreclosure which contains a conditional judgment made final and specific in amount by the subsequent approval of the master’s report of sale.</p>

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

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Adams County; the Hon. Albert Akers, Judge, presiding.</p>

<p>i. Measure of damages—in action for breach of warranty. The measure of damages in an action for breach of warranty is the difference between the actual value of the property at the time and place of sale and what the value would have been had such property been as represented.</p>

<p>1. Review—what essential to. In order to review questions pertaining to the admission or rejection of evidence, the giving or refusal of instructions, or as to the weight of the evidence or the amount of the verdict and judgment, it is essential that a motion for a new trial shall have been made and a ruling had thereon followed by an exception.</p>

<p>Forcible entry and detainer. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>Statutory trial of right of property. Appeal from the County Court of Moultrie County; the Hon. E. D. Hutchinson, Judge, presiding.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Adams County; the Hon. Albert Akers, Judge, presiding.</p>

<p>1. Res judicata—when judgment of Appellate Court is. The judgment of the Appellate Court in a cause is res judicata of the questions decided and is binding both upon the lower court and upon the Appellate Court in a subsequent appeal.</p> <p>2. Verdict—when set aside. A verdict will be set aside on appeal where it is clearly against the weight of the evidence.</p>

<p>1. Garnishee—what, liable to answer for. A garnishee is liable to answer (1) as to any debt due and owing at the date of service, (2) as to any debt owing at the date of service and becoming due thereafter, and (3) as to any debt owing and due at any time after service and up to answer.</p> <p>2. Garnishment—ichat proof essential to recovery in. In order to recover in garnishment it is essential that the plaintiff prove the judgment upon which the proceeding is predicated, as well as the issuance of execution and return nulla bona.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Macon County; the Hon. William O. Johns, Judge, presiding.</p>

<p>Action in assumpsit. Appeal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>1. Grain—upon whom damage to, should fall. Where by contract grain of a particular grade and weight is to be delivered at a certain place, the loss arising from deterioration and shrinkage should be borne by the consignee where such deterioration and shrinkage takes place after arrival at the place of delivery, it appearing that such consignee did not cause such grain to be inspected within a reasonable time after its arrival.</p>

<p>1. Motorman&emdash;duty of, in operating car. It is the duty of a motorman to operate his car only with such care as to enable him to cope with perils which may reasonably be expected to occur. He is not required to run his car with such caution as to guard against the unusual or extraordinary.</p> <p>2. Ordinary care&emdash;when instruction upon, proper. An instruction upon this subject is proper which tells the jury that if they believe from the evidence that ordinary care by the plaintiff required him before driving upon a street car track to look and ascertain whether a car was approaching, and that if he had so looked he could, by the exercise of ordinary care, have ascertained whether a car was approaching, and that if he did not look and ascertain and was injured in consequence,, then they must find the defendant not guilty.</p>

<p>1. Assumed risk—when question of, does notarise. The question of assumed risk is not presented in a case where it appears that complaint of danger had been made by the servant and a specific command and an assurance of safety had been given by the master. In such a case the question is one of contributory negligence, depending upon whether the danger was so great that a person of ordinary prudence would not have encountered it.</p> <p>2. Argument of counsel—when improper, not ground for reversal. An improper argument by counsel is not ordinarily ground for reversal where objections thereto were made and sustained.</p>

<p>1. Levee—when injunction does not lie to restrain construction and repair of. Injunction does not lie to restrain the owner of the dominant heritage from constructing and repairing a levee, the result of which levee will be to drain the lands of the parties so constructing the same into a channel provided by nature, nor is the fact material that by virtue of such levee the quantity of water turned upon the lands of the party seeking the injunction will be increased.</p> <p>2. Co-complainant—discretionary with chancellor to deny leave to become. Where a case has been submitted to a chancellor and has been by him taken under advisement, it is within his discretion to grant or deny leave to an intervenor to become a co-complainant.</p>

<p>1. Mandamus—when does not lie against commissioners of highways. Mandamus does not lie to compel commissioners of highways to reimburse a township road fund to the extent of money expended in improving a road where it appeared that such money arose by virtue of an illegal tax levied pursuant to the petition of taxpayers and voluntarily paid by such taxpayers.</p>

<p>Petition in court of probate to sell real estate to pay debts. Appeal from the County Court of Adams County; the Hon. Charles B. Mc-Crory, Judge, presiding.</p>

<p>Bill to remove cloud, etc. Appeal from the Circuit Court of Morgan County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Rent—what constitutes- payment of. Held, from the particular evidence in this case that a payment of rent in securities was made.</p> <p>2. Lease—when forfeiture of, loill not be sustained. A forfeiture of a lease will not be sustained in equity where the rent for the nonpayment of which the attempted forfeiture was made had been paid in securities which had been accepted by an officer of the lessor corporation who had been vested with discretionary power.</p> <p>3. Estoppel—when operates against corporation. Where the stockholders of a corporation are estopped from asserting a particular claim, the corporation is likewise estopped.</p>

<p>1. Judgment—lohen may be entered as to part defendants only. Judgment is properly entered against those defendants only who have been served in an action of assumpsit.</p> <p>2. Non-joinder—when question of, cannot be raised. The question of non-joinder of defendants cannot be raised after a plea in bar has been filed.</p> <p>3. Agency—instruction upon subject of, approved. An instruction upon this subject as follows, is approved :</p> <p>“ You are instructed that if a person knowingly and voluntarily permits another to hold himself out to the world as his agent he will be held to adopt his acts and be bound as principal to the person who gives credit to the one acting as such agent.”</p> <p>4. Agency—instruction upon subject of, approved. An instruction upon this subject as follows, is approved:</p> <p>“ The jury are instructed that if you believe from the evidence that in the winter of 1899-1900 the defendants knew that O. H. Briggs was acting as their agent, and was buying stocks of goods in their name and operating the Beatrice Mine in their name and for their benefit, and that they voluntarily permitted him to do so; and if you further believe from the evidence that the said O. H. Briggs was so acting and made the contract alleged in plaintiff’s declaration, then the defendants would be bound thereby, whether the said Briggs was in fact their agent at the time or not.”</p> <p>5. Partnership—instruction upon subject of, approved. An instruction upon this subject as follows, is approved:</p> <p>“The court instructs the jury that to constitute a partnership as to the partners themselves it is only necessary that each of them contribute either capital, labor, credit or skill and care or two or more of these, and that all the contributions are put together into a common stock or common enterprise to be used for the purpose of carrying on business for the common benefit.”</p>

<p>Action on the case. Appeal from the Superior Court of Cook County; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>1. Solicitor’s fees—liability of divorced husband for, where services were rendered after decree. Where legal services are rendered necessary after a decree of divorcement in the interests of the child of the marriage dissolved thereby, and for the purpose of effectuating such decree, the husband divorced thereby is liable and the court rendering such decree may fix such allowance and enforce the payment thereof.</p> <p>2. Solicitor’s use—form of order allowing, not. erroneous. An order grunting- solicitor’s fees to the wife and ordering payment thereof to her solicitor, is not erroneous.</p>

<p>1. Account stated—what essential to constitute. In order that an account may be deemed as stated, there must be proof of the debtor’s assent to the account rendered or sum demanded either express, or else implied from the failure to object within a reasonable time after presentation of statement.</p>

<p>Will contest. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>1. Corporate stock—when equity will order conveyance of. Where it appears that corporate stock has been held by one in trust for another or others until certain undertakings have been performed, upon the performance of such undertakings equity will enforce the conveyance of such stock by the trustee to the rightful owner.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County: the Hon. Charles M. Walker, Judge, presiding.</p>

<p>1. Affidavit of claim—when additional, need not be filed. Except in a special case, anew affidavit of claim need not be filed by the plaintiff where he amends his declaration.</p> <p>S. Affidavit of merits—when right to file, properly denied. No abuse of discretion appears where the court has refused the defendant the right to file an affidavit of merits which upon its face is insufficient.</p> <p>3. Foreign corporation—aet prohibiting suit by, which has not complied with statutory requirements, construed. This act does not vitiate contracts made by such corporations; it merely prevents their enforcement by suit. '</p> <p>4. Foreign corporation—when action may be maintained upon promissory note issued to a, which has not complied luilh the laws of this State. The real beneficiary receiving such a note by endorsement maj’’ maintain action thereon in this State.</p>

<p>1. Master—what not essential to liability for defective machinery. Actual knowledge of the extent and character of the defect is not necessary to create liability. It is sufficient if-the master might have known of such defect by the use of reasonable diligence. No defect is latent which an inspection will disclose; hence the master is chargeable with knowledge of what an inspection will inform him of.</p> <p>2. Remarks of counsel—when improper. A remark made to a witness during cross-examination, “ Have you anything to conceal here, sir,” where not justified by the record, is improper.</p> <p>3. Assumption of risk—what essential to. Not only the defects but the dangers must be known to the servant to create an assumption of risk.</p>

<p>Action of replevin. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>1. Carnal assault—what does not justify. Conduct upon the part of the person claiming to have been carnally assaulted, short of a consent, is not justification therefor.</p> <p>2. Loss of services—father may recover for. A father may recover for loss of services of an adult daughter who though married was separated from her husband and a member of such father’s family, where such loss of services was the result of an illegal carnal assault.</p> <p>3. Declaration—legal name not necessary to be alleged. The legal name of a person need not be alleged in a declaration; it is sufficient if that name by which the person is known and which has been adopted by such person is employed.</p> <p>4. Measure of damages—what not element of, in action for loss of services. Money expended in the support of the child resulting from an illegal carnal assault is not a proper element of damage which could be recovered by the father of the victim of such assault.</p> <p>5. Measure of damages—what element of, in action for loss of services resulting to the father from an illegal carnal assault upon his daughter. In such an action damages for disgrace and humiliation • suffered by such father and his family may be recovered.</p> <p>6. Punitive damages—when improper in action for carnal assault. In such an action punitive damages should not be allowed where it appeared that there was no excessive viciousness, deliberate malice, brutality or other special element tending to aggravate the offense committed and where such offense appears from the evidence to have been almost a matter of invitation.</p>

<p>1. Gambling purposes—what essential to conviction for leasing premises for. Before a conviction can be had for leasing premises for use for gambling purposes, it is necessary to prove beyond a reasonable doubt that at the time of the execution of such lease by the landlord, such landlord had actual knowledge that the premises leased were to be used for gambling purposes.</p>

<p>1. Deceit—when declaration in action for, defective. A declaration in an action for deceit which does not allege that the defendant did not perform the undertaking upon which the plaintiff relied, is fatally defective,</p> <p>2. Deceit—when action for, does not lie. An action for deceit does not lie where the representations relied upon by the plaintiff were mere promises, and this, notwithstanding the defendant at the time he made such promises did not intend to keep the same.</p>

<p>1. ■ Judgment—when exception to, essential to review. Exception to the judgment entered is- essential to the review of a cause which has been tried by the court without a jury, except in so far as there are errors appearing on the face of the record as properly made up by the clerk.</p>

<p>1. Notice—when insufficient as to hearing upon petition to lay out road. Notice fixing the hearing upon a petition to lay out a road at “ the site of the road,” is insufficient.</p>

<p>Quo warranto proceeding. Error to the Circuit Court of Douglas County; the Hon. Solon Philbrick, Judge, presiding.</p>

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

<p>1. Payment—what tends to rehut. The giving of a new note to the payee of a certain other note claimed to have been paid before such other note has been canceled or surrendered, tends to show that such other note has not been paid.</p> <p>Action of assumpsit. Appeal from the Circuit Court of Tazewell County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>Action of replevin. Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding.</p>

<p>1. Partner—when liability of retiring, continues. Upon dissolution, the liability of the retiring partner continues, unless actual notice of his retirement is given to persons with whom the firm has previously dealt and as to others published notice be given.</p>

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

<p>1. Drainage district—power of commissioners in forming. Commissioners in forming a drainage district have power to add land benefited but not described in the petition and to exclude land not benefited but described in the petition. The power of the commissioners in this respect is large, judicial in character, and is rarely subject to review.</p> <p>3. Drainage district—when notice of proceedings for formation of, sufficient. Where the notice for the formation of a drainage district is otherwise sufficient, the fact that the clerk signing the same did not actually mail it in person, but caused the same to be mailed by another, does not vitiate the same.</p>

<p>Action of assumpsit. Error to the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>1. Alteration of instrument—lata with respect to explanation. In this state there is no presumption of law as to whether an instrument has been altered from its condition when executed, but it is a question of fact, and the party producing an instrument which apparently has been altered is required to explain the same.</p> <p>2. Alteration of instrument—power of court to permit jury to use magnifying glass. Where witnesses testifying with respect to an altered instrument used upon the stand a riiagnifying glass, the court is empowered to permit the jury to take such magnifying glass to the jury room for use in examining such instrument.</p> <p>3. Witnesses—when incompetent. A party in interest is incompetent to testify to conversations had with a deceased agent of the opposite party. .</p> <p>4. Incompetent evidence—when party cannot object to. A party cannot object to a party in interest testifying to conversations with a deceased agent of such objecting party where such conversations were first elicited upon the cross-examination of the objecting party.</p> <p>5. Certified copies—when incompetent. A certified copy of a corporate record is incompetent where the certificate appended thereto does not state that the document certified to is a cópv of the record, and that the party certifying to the same is the keeper of such records.</p>

<p>Petition for appointment of conservator. Appeal from the Circuit Court of Macoupin County; the Hon. R. B. Shirley, Judge, presiding.</p>

<p>1. Amendment—power of court to permit, during trial. It is within the discretionary power of the trial judge to permit the plaintiff to amend its declaration during the trial of a cause.</p> <p>2. Ordinance—requiring payment of street car license fee, valid. A municipality has power to adopt an ordinance requiring the payment by a street car company of a license fee for each and every car regularly operated within the corporate limits of such municipality.</p> <p>3. Ordinance—when traction company not exempt from regulation by. In the absence of an express exemption a grant to a traction company is subject to the right of legislative and municipal regulation.</p> <p>4. Ordinance—how cannot be amended. An ordinance cannot be amended, suspended or repealed by mere resolution.</p> <p>5. Assumpsit—when lies to recover license fee. Assumpsit lies to recover license fees imposed by ordinance upon each and every car regularly operated by a traction company.</p>

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

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

<p>Action of assumpsit. Appeal from the County Court of Tazewell County; the Hon. Jesse Black, Judge, presiding.</p>

<p>1. Additional plea—zohen refusal of leave to file, not improper. It is not improper to deny an application made at the trial lor leave to file an additional plea where no showing is made why such application was not sooner made and the character of the plea sought to be filed.</p>

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

<p>Action on the case under Dram-Shop Act. Appeal from the Circuit Court of Hancock County; the Hon. John A. Gray, Judge, presiding.</p>

<p>Mandamus proceeding. Appeal from the Circuit Court of Moultrie County; the Hon. William C. Johns, Judge, presiding.</p>