Volume 126 — Illinois Appellate Court Reports

<p>Action of assumpsit. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1904.</p>

Bill for accounting. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1905. Statement by the Court. This is an appeal by H. H. Kohlsaat, John B. Waldo and Montgomery B. Gibbs, from a decree rendered against them at the suit of appellee.

<p>1. Forfeiture—when acceptance of assessment waives. Where a member of a fraternal benefit society is in default by reason of nonpayment of dues and thereby stands suspended subject to the payment of such dues within a specified time, the acceptance of such dues by the local council of the society after the expiration of such time is a waiver of the forfeiture.</p> <p>2. Suspension—when by-law relating to, self-executory. In this case a by-law providing for suspension in the event of non-payment of dues, held, self-executory.</p> <p>3. Suspension—when cannot be waived■. A suspension for non-payment of dues cannot be waived by an agent of a fraternal benefit society by the acceptance of dues after the death of the member under suspension.</p>

<p>1. Passenger—carrier liable for unlawful ejection of, by conductor. A conductor in charge of. a street car is the agent of the company. The power inherent in the company to expel from its cars persons who refuse to pay the customary fare is vested in him. If by an error in judgment lie expels one who is entitled to the rights of a passenger, the company is responsible for such error, for in legal contemplation the company is present and is acting in the person of its conductor.</p> <p>2. Passenger-1-when carrier not justified in refusing tender of fare by. Where a passenger in a street car tenders to the conductor a genuine silver coin of the United States, not so worn but that its mint marks are plainly discernible, in payment of car fare, and it is refused, and upon refusal to make the payment in other money the passenger is ejected, he may have an action for damages against the railroad company. This is the law, even though the conductor declined to receive the coin, because, in good faith, he believed it to be counterfeit. Nor is the passenger compelled to tender other moneys, if the coin first tendered is genuine.</p> <p>3. Statement of counsel—when not subject to review. A statement of counsel is not subject to review where it was not objected to at the time it was made.</p> <p>4. Res gestae—what competent as part of'. Where a passenger has been unlawfully ejected from a street car, all that was said and done by the conductor guilty of making such ejection is competent as part of the res gestae.</p>

Petition filed in foreclosure proceeding to set aside foreclosure sale. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the March term, 1905. Statement by the Court. October 12, 1898, a bill was filed by Alfred D. Solberg against John D. Thorell and his wife in the Circuit Court to foreclose a trust deed upon certain premises therein described. Three days later Charles H. Giroux was appointed receiver.

<p>1. Accident insurance—burden of proof to establish death. In an action upon an accident insurance policy, the burden of proof is upon the plaintiff to establish the death of the assured by accident.</p> <p>2. Accident insurance—statement as to age a warranty. Held, under the application for accident insurance in this case, that the statement of the age of the applicant was a warranty and that the beneficiary could not assert that the misstatement of such age by such appellant was immaterial to the risk.</p> <p>3. Accident insurance—misstatement of age, where a warranty, voids poliey. Where the insured in his application for accident insurance misrepresented his age and the statement of age is made as a warranty, such misstatement voids the policy.</p> <p>4. Accident insurance—statement of age material to rists. The assured’s statement of his age, even though not a warranty, is, as a matter of law, a material representation in an application for an accident insurance policy.</p> <p>5. Warranties—when statements in application for, insurance constitute. When an application for accident insurance is made a part of the policy and the statements therein contained are warranted to be true, they are warranties, and it is of no consequence whether they are or are not material to the risk.</p>

Will contest. Appeal from the Circuit Court of Cook County; tire Hon. Richard S. Tuthill, Judge, presiding. Held: and that said documents be and the same are hereby declared to be null and void.” And “ That the costs of this case be taxed against the defendants and that complainants have execution therefor.” The bill in this cause was filed February 26, 1903, by John Benniworth Sutton, George Sutton and Charles Sutton, brothers of Frederick…

.-Bill of interpleader. Appeal from the Circuit Court of Cook County; the Hon, Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. On January 12, 1903, Walter I. Moody was the owner of one-half of the capital stock of the Moody-King Company, a corporation doing business in Chicago as commission merchants.

Action of assumpsit. Appeal from the County Court of Cook County; the Hon. A. J. Clarity, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. This is an appeal from a judgment of the County Court upon a verdict of $600 rendered in an action of assumpsit in favor of Margaret Walsh, plaintiff, and against the Abraham Lincoln Building, Loan & Homestead Association, an Illinois corporation, defendant.

Action commenced before justice of the peace. Appeal from the ■Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905,

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p> <p>Statement by the Court. This is an appeal by the plaintiff from a judgment of the Superior Court in an action on the case brought by him against appellee for alleged negligence of appellee causing the loss of appellant’s right hand and a portion of his arm.</p> <p>Appellant was in the employment of appellee as a helper to the operator in charge of a large punching machine, owned and operated by appellee, and run by steam power. It was used for punching rivet holes in heavy steel plates. In some manner the plaintiff, appellant, got his hand caught and crushed between two cog-wheels of the machine, on December 5, 1900.</p> <p>The machine consisted of a large casting, about four feet high, ten to twenty-eight inches thick and something over three feet in length, east and west, with the punch proper at the west end, and the gearing at the east end. This gearing consisted of a small closed pinion at the east end of the machine and about thirty inches from the ground, and a large cog-wheel meshing into it. The pinion was on a shaft which extended about three and one-half feet east of the east end of the machine. The cog-wheel ivas forty inches in diameter and directly above the pinion. East of the pinion and on the same shaft were two small belt pulleys by which the power was transmitted to the shaft, and still east of these was a large balance or fly wheel.</p> <p>West of the punch was a table of steel construction two or three feet wide and thirty or forty feet long, running north and south at right angles with the main body of the punch. The top of the table was about on a level with the jaws of the punch. The steel plates were placed on the table and fastened in the proper position, and by the rolling or movable top of the table were passed through the jaws of the punch. This was done by the operator of the punch while standing on the west side of the table, the helper at the same time standing on the east side of the table immediately south of the punch.</p> <p>The plaintiff was twenty-eight years of age at the time of the accident. There is some controversy in the evidence as to the length of time he had worked in defendant’s shop. There is evidence tending to show that he had worked there a year ending in 1896, during which time he worked for several weeks on a punching machine. He began work again in the shop in the fall of 1900. According to the plaintiff’s testimony he had worked on this machine about five days immediately preceding the accident, and had been working in the shop about ten days. All the other witnesses state that he had been working in the shop seven Aveeks prior to the accident, and on this particular punch not less than three or four weeks. The time book of the shop supports the testimony of the witnesses to this effect.</p> <p>During the five days that the plaintiff admits he worked as a helper on this punch, they had been punching a double row of holes in the end of each plate. They punched about ten plates per day. A lubricant. was used when punching the holes to keep the punch from heating. ■ It Avas the plaintiff’s duty to apply the lubricant. When punching the second row of holes on the same end, it Avas necessary to wipe off this lubricant in order that the second row of holes might be marked on the iron or steel with a slate pencil, using the pattern. It was the plaintiff’s duty to wipe off the lubricant. It was his duty also to oil the bearings of the machine.</p> <p>The testimony tends to show that the plaintiff often put sand on the plate in order to clean it more quickly, and that after wiping off the plate just prior to the accident, the plaintiff turned and struck the waste which he had used against a ten-inch board running north and south which shielded the workmen from the pinion, presumably to knock out the sand, and the waste was caught in the mesh between the cog-wheel and the pinion and his hand was drawn in. The plaintiff denies that he knocked the waste against the board.</p> <p>At the close of the trial the jury rendered a verdict for the defendant, and judgment was entered on the verdict.</p>

<p>1. Bill of exceptions—when will he stricken from transeript. A bill of exceptions not presented or signed within the term at which the judgment was rendered or within the time fixed therefor or within the time fixed by extension granted prior to the expiration of the time limited, will be stricken from the files on motion.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

Forcible detainer proceeding. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. ■ Statement by tlie Court. On May 1, 1904, appellants entered into the possession of the premises described as the second and third floors of the building at Mo. 218 Wabash avenue, Chicago, under a written lease, and occupied the' premises until the tenth day of December, 1904.

<p>Action of assumpsit. Appeal from the County Court of Cook County; the Hon. DwightC. Haven, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

Mechanic’s lien proceeding. Error to the Superior Court of Cook County; the Hon. Theodore Bremtano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court.

<p>Action on the case. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1005.</p> <p>Statement by the Court. This is an appeal by the defendant from a judgment for $306.01 recovered against it by appellee in the Circuit Court, in an action on the case. The declaration alleged that the plaintiff, a corporation, delivered to the defendant, a common carrier of freight, at Chicago, on June 8, 1901, three boxes, containing a large number of letters, to be by it carried from Chicago to New York and there delivered to one E. R. Hibbard; that said letters were the property of the plaintiff and were through the negligence of the defendant wrongfully delivered to a person doing business in New York under the name “Men of Letters,” etc.</p> <p>A short time before June 8, 1901, appellee received from one Smith, a dealer in letters, who carried on business at 595 Broadway, New York, under the name of “ Men of Letters,” an offer of „$30 per thousand for a large number of letters which appellee had received in answer to its advertisements from sick and ailing persons in different parts of the country. Upon the receipt of this offer appellee by its treasurer put the letters in three boxes marked, “ Men of Letters, 595 Broadway, New York,” and sent the boxes, June 8, 1901, by a drayman from its office in Chicago to the receiving room of appellant in Chicago, where they were delivered to appellant for carriage to New York and delivery there to “Men of Letters.” Appellant gave to the drayman for appellee the following receipt for said boxes:</p> <p>“ Boston Medical Institute.</p> <p>By the----following articles in good order, to be delivered in like order, as addressed, without unnecessary- delay. All packages subject to charge for cooperage if necessary.</p> <p>Ho.-, E. B. Hibbard, Chicago, Jun 8, 1901.</p> <p>Marks and Description</p> <p>Consignee. Ho. Pkgs. of Articles. Weight.</p> <p>Men of Letters. 3 Boxes Paper. 350.</p> <p>595 Broadway,</p> <p>New York City, 108-8 28-11928.</p> <p>H. Y.</p> <p>Original. Pr. H. Y.</p> <p>Beceived at Van Burén St., Freight Station, Jun 8, 1901, subject to the rules of the Star Union Line’s (Penna. Co.) Bill of Lading, to be issued by Wm. Borner, Agent, S. W. corner Jackson & Sherman streets.</p> <p>Fred W. Belz, Agent.”</p> <p>This receipt was on the day it was issued, which was Saturday, taken by the drayman to the office of appellee.</p> <p>The treasurer of appellee testified in part as follows: “ Upon an offer by the ‘Men of Letters ’ in New York of §30 a thousand, I ordered three boxes of letters shipped to New York. * * * After thinking the matter over on Sunday I concluded I had not done the right thing by my company in permitting them to go for that price.” * * * The treasurer of appellee on Monday took said receipt to the office of appellant and told the clerk of appellant that he did not want said boxes delivered to “ Men of Letters in New York,” and at his request said clerk then caused to be issued and delivered to appellee the following bill of lading:</p> <p>“Bill of Lading, Ho. 11,321.</p> <p>Chicago, Ill., 6-8, 1901.</p> <p>Beceived from B. M. I. the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned and destined as indicated below, which the Star Union Line agrees to carry to the said destination, if on the Pennsylvania R. R. system, otherwise to deliver to another carrier on the route to said destination.</p> <p>Upon all the condititions, whether printed or written, herein contained, it is mutually agreed that the rate of freight from Chicago, Ill., to New York, is to be in cents per 100 lbs.</p> <p>Marks, consignee Description of Weight,</p> <p>and destination. Articles. (Subject to correction.)</p> <p>E. B. Hibbard,</p> <p>395 Broadway, H. Y. 3 bxs. paper. 350 lbs.</p> <p>New York.”</p> <p>(Here follow certain conditions, numbered from 1 to 11 inclusive.)</p> <p>Bill of lading is signed,</p> <p>Wm. Bornee, Agent.</p> <p>per Eden.</p> <p>Across the face of the bill of lading is the following indorsement, to wit:</p> <p>“ This bill of lading is issued in lieu of a duly stamped memorandum receipt for same shipment of goods now on file in the company’s office.”</p> <p>The boxes were carried by appellant to New York and delivered to Smith, who, as has been said, did business under the name “ Men of Letters.” The letters were counted by him and the number of letters in the boxes found to be 12,995. Smith paid to appellee July 12,1901, and appellee accepted from him $339.85 in payment for the 12,995 letters, so received by him from appellee at the agreed' price of $30 per thousand, and afterwards, on August 18th, appellee brought this suit.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

Action on the case for damages to personal property. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.

<p>1. Peremptory instruction—when should he given. Where it is clear to the trial judge that the evidence upon a given question is so insufficient as to justify a finding thereon in favor of the plaintiff, it is proper, at the instance of the defendant, peremptorily to instruct the jury upon such question in favor of the defendant, and if such question is the sole issue before the court, peremptorily to instruct the jury to find for the defendant.</p>

Bill to enforce lien, etc. Appeal from the Superior Court of Cook County; the Hon. Marcus Kayanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. Appellants are residents of Memphis, Shelby county, Tennessee.

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.</p>

Separate maintenance proceeding, Appeal from the Circuit Court of Cook County; the Hon. Edward O. Brown, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. This is a bill for separate maintenance.

<p>1. Bill of review—when facts can only be set up by, as newly discovered evidence. Where the evidence relied upon to set aside the decree sought te be questioned is such as would have been competent in the original proceeding, the same can only be availed of by bill of review setting up that such evidence is newly discovered and showing that the same could not have been discovered for introduction in the original proceeding by the exercise of due diligence.</p> <p>2. Bill of review—when will be stricken from files. A bill of review predicated upon newly discovered evidence, filed without leave of court, will be stricken from the files on motion.</p> <p>3. Deoree—character of fraud essential to impeach. The acts for which a court of equity will, on account of fraud, set aside or annul a judgment or decree, between the same parties, rendered by a court of competent jurisdiction, have relation to frauds extrinsic or collateral to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered,</p> <p>4. Leave of court—when essential to filebill to set aside decree. A bill of review upon the ground of newly discovered evidence cannot be filed without first obtaining leave of court for that purpose, and such leave is equally necessary in eases where the averment of newly discovered evidence is united with or accompanied by a charge of fraud in obtaining the decree.</p>

Action on the case for personal injuries. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1905.

<p>Appeal from interlocutory order of injunction. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1905.</p>

Action on the case for personal injuries. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1905. Statement by the Court. February 5, 1896, Kingsley, while working for plaintiff in error, was injured. He brought an action for damages and on July 14, 1900, recovered a judgment in the sum of $7,000. December 17, 1904, plaintiff in error brought the record to this court.

<p>Petition for writ of certiorari. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1905.</p> <p>Statement by the Court. Plaintiff in error filed a petition for a writ of certiorari to remove a cause entitled J. Edward Stubbert v. Nicholas Allegretti from'before Joseph G. Sheldon, a justice of the peace, into the Circuit Court.</p> <p>In his petition he alleged that Stubbert November 23, 1904, commenced an action before said justice against petitioner to recover the sum of $199 for alleged medical services rendered; and that December 8, 1904, said justice rendered judgment against petitioner in the sum of $199 damages and costs. That November 24, 1904, Thomas Boddy, an alleged constable, came to the home of petitioner and told his wife that he had a warrant for the arrest of petitioner; that his wife, being in a delicate condition, swooned; that when petitioner came into the presence of the alleged officer the latter “ made a pretense of reading from what purported to be a writ, by mumbling and muttering in an indistinct and unintelligible tone the alleged contents thereof; that the alleged officer did not inform petitioner of the name of the plaintiff or the time and place of the trial, or the name of the justice; and he avers that such alleged service was a fraud upon petitioner.</p> <p>He further alleges that the first information he had respecting said cause was January 14,1905, more than twenty days after the entry of said alleged judgment, through a copy of an alleged execution left at his home by said Boddy, and he was thereby prevented from taking an appeal in said cause; that said alleged judgment is erroneous and unjust; that petitioner was not and is not indebted to said Stubbert in any sum whatever; that said Stubbert did not appear at said trial, but the alleged claim was sworn to by the attorney of said plaintiff, who had no personal knowledge thereof, so that said judgment is erroneous, and should be set aside, etc.</p> <p>The writ was issued January 20, 1905. ' Five days later the justice filed a transcript'in the case before him, and accompanied the same by the summons issued therein, dated November 23, 1904. Upon the back of this paper is the following: “ Personally served the within writ by reading the same to the within named defendant Nicholas Allegretti in my county this twenty-fourth day of November, 1904. Service-mileage $2. Thomas Boddy, constable.”</p> <p>January 26, 1905, Stubbert entered his appearance in said cause in the Circuit Court, and moved the court to quash the writ of certiorari, which motion was granted, the appeal was dismissed and judgment for costs was entered against plaintiff in error. This appeal followed.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1905. Statement by the Court. The Chicago Union Traction Company operates a double track cable street railway in West Madison street in the city of Chicago. These tracks lie upon each side of the center of the roadway.

<p>1. Option contract—instrument with respect to purchase and sale of grain so held. The following instrument held an option contract within the meaning of section 113 of the Criminal Code:</p> <p>“I, Harry Woods, hereby offer to contract for the sale to Mark Bates of 60,000 bushels of regular contract wheat on the Board of Trade of the city of Chicago, at 82£ cents per bushel, same to delivered in the month of December, 1905.</p> <p>Harry Woods.</p> <p>“In consideration of $60.00 I promise to leave the above offer open for acceptance until the hour of one o’clock and fifteen minutes p. m." September 14,1905.</p> <p>Harry Woods.”</p> <p>2. Declaration—what averment of, improper. Where a contract declared upon is void by statute, it is not competent by averment contained in the declaration to undertake to change its legal effect.</p>

<p>Certiorari proceeding. Error to the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>1. Negligence—effect of specific allegation of. Where the declaration alleges negligence in the doing or in the not doing of a specific thing, it is upon those allegations and upon those alone that a recovery can be had.</p> <p>2. Negligence—when burden of proof to controvert charge of, is not upon carrier. Proof of the relation of carrier and passenger and proof of the injury do not, in every case, make a prima facie showing for the passenger and cast the burden of proof upon the carrier to show that the injury resulted without its carelessness; it depends on the nature of the declaration.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon, Lockwood Honors, Judge, presiding. Heard in this court at the March term, 1905.</p>

<p>Quo warranto proceedings. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding. Heard in this court at the October term, 1905.</p> <p>Statement by the Court. This is a contest over an elective office. The attorney-general of Illinois, at the relation of certain electors of the township of Lemont in Cook county, brought in the name of the People an information in the nature of a quo warranto against Peter Markiewicz, challenging his right to the office of commissioner of highways in said township. Markiewicz answered by plea to the information that he had been duly elected commissioner of highways in the town of Lemont April 4, 1905, to fill a vacancy in the office of commissioner of highways, from Road Commissioners’ District Mo. 3 in said town of Lemont; that he duly qualified and has ever since said April 4, 1905, been a member of the board of highway commissioners in and for said town of Lemont. In his plea he further qualifies himself as properly holding the office by asserting that for more than one year prior to March 18, 1905, and ever since said time he has been a resident and legal voter of said town of Lemont, and that on and prior to March 18, 1905, he was a resident of that portion of the town of Lemont known as Road Commissioners’ District Mo. 3, and that he was such a resident of said Road Commissioners’ District Mo. 3 on April 4, 1905.</p> <p>A replication to this plea was filed alleging that there was no vacancy in the office of commissioner of highways for Road Commissioners’ District Mo. 3, in the township of Lemont, April 4,1905, requiring or authorizing an election, and denying that Peter Markiewicz was on March 18, 1905, or at any time following said date up to and including April 5, 1905, a legal voter of the town of Lemont, and asserting that said Markiewicz was not qualified to vote and did not in fact vote at the said election April 4, 1905; also that Markiewicz did not possess the necessary residence qualifications for holding the office of highway commissioner of Road Commissioners’ District Ro. 3 at the time of his election, and had not resided in that portion of the town of Lemont known as Road Commissioners’ District.Ro. 3 for one year next before said election for town officers on April 4, 1905, but had .only resided in Road Commissioners’ District Ro. 3 for the period of twenty days, and that his residence in said district was for the purpose of holding office if elected and removing if not elected, and that Markiewicz was not in fact a resident of said District Ro. 3 at the time of his election.</p> <p>When the case came to trial a jury was waived and it was submitted to the court on a stipulation of facts, which sets forth that Lemont is organized under the general township laws; that it is divided into three road commissioners’ districts, which do not conform to the election districts of said town; that the place occupied as a residence by Markiewicz before March 15, 1905, is located in election district number 3, while the place to which he moved and in which he claims residence since that date is in election district number 4; that the highway commissioners are voted for by all the voters in the township, and are not elected respectively by the vote of the voters of the respective highway commissioners’ districts; that the full term of office of a highway commissioner is three years and until his successor is elected and qualified; that on April 4, 1904, the highway commissioners regularly holding office for the respective districts were, district Ro. 1, James Ash, term expiring annual election 1905; district Ro. 2, John H. O’Brien, term expiring annual election 1906; district Ro. 3, Fred Krueger, term expiring annual election 1904; that on April 5, 1904, the annual town election was held for the purpose of electing, among other officers, the highway commissioner for Road Commissioners’ District Ro. 3; that'at said election another person than Krueger was elected a highway commissioner for said Road Commissioners’ District Ho. 3, and received from the proper officer his certificate of election; that April 15, 1904, a quo warranto proceeding was instituted against said person so elected, which proceeding resulted in a final judgment ousting him from office; that Krueger continued to exercise the office of highway commissioner of Road Commissioners’ District Ho. 3 as a hold-over officer; that notice was legally given March' 18, 1905, for the election of highway commissioner for Road Commissioners’ District Ho. 1 for the full term of three years, and for the election of highway commissioner for Road Commissioners’ District Ho. 3, to fill said office for the unexpired term; that the election held pursuant to said election notice was on April 4, 1904, and was the regular annual town election; that at said election Markiewicz received the majority of the votes cast for highway commissioner for said Road Commissioners’ District Ho. 3; that Markiewicz wTas declared to be duly elected to that office; that a certificate of election was issued to him, and that he took and filed the proper oath of office, entered upon its duties and has continued to perform them up to the present time; that prior to March 15, 1905, Markiewicz had resided in Road Commissioners’ District Ho. 2; that on March 14, 1905, Markiewicz rented a house in Road Commissioners’ District Ho. 3, and paid one month’s rent “ within several days of March 14th ” for said house; that on March 15, 1905, Markiewicz moved into said house with his family and personal belongings, and since said March 15, 1905, has continuously lived there with his family.</p> <p>During the progress of the trial it was admitted of record that Markiewicz did not in fact vote at the election of April 4, 1905, and was not qualified to vote for the election of county or state officers voted for at said election, or upon a bond proposition submitted to the voters of said election; also that the town of Lemont is divided into four election districts under sections 30 and 31 of chapter 46 of the Revised Statutes of Illinois.</p> <p>Also, in view of certain statements and admissions of the counsel for relators and for respondent in open court, the court made findings of fact in the case, that the respondent Markiewicz was a resident of Road Commissioners’ District Mo. 3 at the time of the election, and that he is a citizen of the United States, and for more than one year prior to April 5, 1905, had been a resident of the town of Lemont, but that he did not reside in the election district in which he would be required to vote for thirty days before the election.</p> <p>Upon these pleadings and stipulations and findings of fact, the court held as propositions of law:</p> <p>First. That a person who has not been a resident of an election district thirty days next preceding the town election is not a legal voter, and is therefore ineligible to hold any town office as the result of such town election.</p> <p>Second. That a person not a legal voter is not eligible to the office of commissioner of highways, and is not legally qualified to hold the office of commissioner of highways under the provisions of the Township Organization Act of this State.</p> <p>Third. That it is a necessary qualification for a commissioner of highways of a town in a county under township organization, that he should have resided in the election district in which he lives at the time of his election for a period of thirty days next preceding said election.</p> <p>Fourth. That when a person is disqualified by change of residence within thirty days before „ the election from voting in any election district of a town, such person is not a “legal voter,” within the meaning of the term as used in section 84 of chapter 139 of the Revised Statutes of Illinois.</p> <p>A fifth proposition of law presented by counsel for relators the court refused to hold. It was: That it is a necessary qualification before a person can hold the office of commissioner of highways for a road commissioners’ district, that he should have resided in the district for which he is elected commissioner, as aforesaid, for one year immediately preceding his election.</p> <p>To the holding of the four propositions of law, before set forth, the respondent excepted; to the refusal of the fifth the relators excepted.</p> <p>The court then made “the ultimate-finding of fact” “that the evidence in the case, with all its reasonable inferences and influences, had wholly failed to establish the legal right or qualification of the respondent to the office of commissioner of highways in and for Road Commissioners’ District No. 3 in the town of Lemont,” and entered a judgment of ouster and for costs against the respondent. From this judgment he appealed to this court, where he has assigned as error the rendering the judgment of ouster, the refusal to dismiss the petition, and the holding of the propositions of Idw above set forth as held.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, Í905.

<p>1. Leave to amend—when becomes effective. Leave to amend is not effective until the amendment is actually made.</p> <p>2. Parties—w/io not necessary, to a ptroceeding in chancery. Persons having no substantial interest in the subject-matter of the litigation are not necessary parties to a bill in chancery.</p> <p>3. Writ of error—when question of parties to, deemed waived. A defect with respect to parties to a writ of error", where not early-called to the attention of the Appellate Court, may be deemed waived.</p> <p>4. Execution sale—when prop>erly set aside. Held, under the evidence in this case, that a decree setting aside an execution sale at the instance of creditors whose interests were impaired by the inflation of a claim used for purposes of redemption, was proper.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Henry County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1905.

<p>1. Reference to master—when proper to set aside. Where by action of one of the parties to a cause in chancery all the facts are left confessed, it is proper for the court to set aside a reference to a master and a report returned by him.</p> <p>2. Foreclosure—what defenses owner of equity may interpose. In a chancery proceeding the owner of the equity of redemption may interpose any defense against an innocent purchaser for value which he might have interp.osed against the original holder of the notes in question.</p> <p>3. Real property—what sale of interest in. ■ A sale of standing timber and the right to enter and cut the same is the sale of an interest in real property.</p> <p>4. Assignment—when warranty not implied from terms of. An assignment in the words following does not warrant and a warranty is not implied: “do hereby sell, assign, transfer and set over unto said party of the second part all his right, title and interest in and to a certain contract.”</p> <p>5. Covenant of warranty—what not included in. A warranty of title and of quiet possession and peaceable enjoyment is against one lawfully claiming or seizing the property, and not against one who unlawfully claims or seizes it.</p>

<p>1. Contract—for delivery of merchandise construed. Held, that the particular contract in question in this case required delivery to the vendee at his hometown and that he was not required to look to the carrier for delay in delivery.</p> <p>2. Contract—printed words upon letter not competent to affect. The following printed words upon a letter are not competent to vary the explicit terms contained in the letter itself:</p> <p>“ Quotations not binding until orders are accepted and are then subject to all contingencies beyond our control, advances in mining or rates of transportation. Invoice weights at point of shipment to govern settlements.”</p> <p>3. Accord and satisfaction—when does not appear. In an action to recover the purchase price of merchandise in part rejected, a check given by the vendee and accepted by the vendor containing these words: “ To balance account coal received from you to date,” does not show an accord and satisfaction, inasmuch as the check only purported to pay in full for “ coal received.”</p> <p>4. Vendor and vendee—remedies of former when latter wrongfully refuses to accept merchandise. Where the vendee is bound to accept at the place of delivery, but wrongfully refuses so to do, the vendor has a choice of three courses: (1) he may store the merchandise for the vendee and notify him of having done so and may then sue for and recover the full purchase price; or (2) he may keep the merchandise and recover the excess, if any, of the contract price over the market price at the time and place of delivery; or (8) he may sell the merchandise to the best advantage and recover the loss from the vendee if the merchandise fails to bring the contract price.</p>

<p>1. Accord and satisfaction—what not good replication to plea of. A plea which avers an accord and satisfaction by the giving and acceptance of a note is not answered by a replication which sets up that the money sued for was not paid.</p> <p>2. Replication—when defendant waives immaterial issue presented by. A defendant who accepts an immaterial issue tendered by replication and goes to trial without either demurring to such replication or asking judgment, thereby waives such immaterial issue.</p>

Action commenced before justice of the peace. Appeal from the County-Court of DeKalb County; the Hon. W. L. Pond, Judge, presiding. Heard in this court at the October term, 1905.

<p>1. Amendment—how record of, may not be preserved. It is not the office of the clerk of a court to recite in his record that a party has amended a pleading, nor to preserve in his record the language of such amendment.</p> <p>2. Amendment—when takes effect. An order granting leave to amend a plea does not of itself constitute an amendment, and the amendment does not take effect until the pleading is actually amended.</p> <p>3. Dilatory plea— when need not be verified. A plea to the jurisdiction of the court, in the nature of a plea in abatement, need not be verified.</p> <p>4. Plea to jurisdiction—how shoidd conclude. A plea to the jurisdiction of the court properly concludes with the prayer, “if the court here will take cognizance of the action aforesaid.”</p> <p>5. Plea to jurisdiction—when proper. A plea which attacks an effort to sue a party outside of the county where he resides is meritorious, and is founded upon a statutory right.</p> <p>6. Plea to jurisdiction—right to amend. By virtue of the statute of amendments and jeofails, the right to amend a plea to the jurisdiction exists.</p> <p>7. Appearance— when motion for leave to amend does not confer jurisdiction. A motion for leave to amend a plea to the jurisdiction does not constitute a general appearance.</p> <p>8. Misnomer—trlicd is not pleading a. To state after the beginning of a plea to the jurisdiction that the defendant’s name is other than that by which he is sued in the matter of the middle initial, is not pleading a misnomer and does not render double a plea to the jurisdiction.</p>

<p>1. Freehold—when not involved in a proceeding to sell real estate to pay debts of an intestate. A freehold is not involved where the only-question is whether or not the widow’s award should be paid out of the proceeds of the sale of the real estate.</p> <p>3. Laches—to/iera does not bar proceeding to sell real estate to pay debts. Where a homestead does not exceed in value the sum of §1,000 and it is occupied by the widow or by the widow and children as a homestead, it cannot be sold to pay debts by the administrator until after the termination of the exemption, and, therefore, it is not laches to delay selling such a homestead for the payment of debts until the premises cease to be occupied as such homestead.</p> <p>3. Widow—rights of, in homestead estate. A widow is entitled to both her award and her homestead, and she is not required to sacrifice either the one or the other; she may occupy the homestead and upon ab andoning the same may enforce the sale thereof to pay her award or any balance due thereon.</p>

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

<p>Action of debt. Error to the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the October term, 1905.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Rock Island County; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term,, 1905.

<p>' Forcible entry and detainer. Error to the Circuit Court of Grundy County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1906.</p>

<p>1. Service oe summons —when, upon minors, insufficient. Where there are several minor defendants the leaving of one copy for all, and not one for each, at their usual place of abode, etc,, is not sufficient.</p> <p>2. Service of summons—who may question' One who has a direct interest in land sought to be foreclosed may attack the service had upon her minor co-defendants.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. William H. G-est, Judge, presiding. Heard in this court at the October term, 1905.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Kane County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the October term, 1905.</p>

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

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Livingston County; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Joint and several obligations—section S of act pertaining to, construed. This section does not apply to judgments.</p> <p>2. Judgment of revivor—when cannot be entered. A several revivor cannot be entered upon a joint judgment.</p>

Action of covenant. • Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement Tby the Court. This is an action of covenant brought in the name of the United States-for the use of Thomas J. McNulty and Patrick H. McNulty against Levi L. Leach and Thomas A. Leach, principals, and Dillwyn V. Purington and Jeremiah Gr.

Bill to redeem. Appeal from the Circuit Court of Cook County; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. There is no controversy as to the following facts shown by the record in this case.

Action of trespass. Appeal from the City Court of Chicago Heights: the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by theCourt. The First Presbyterian Church of Chicago Heights, appellant, is incorporated as a religious society under the Act of 1872. William G-. Caldwell, F. M. Eichardson, George S. Angus, David Wallace, M. E. Hotchkiss, E. E. Beach and H. K. Helfrick composed its board of trustees for 1904.

Mechanic’s lien proceeding. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard, in thu Branch Appellate Court at the March term, 1905. Statement by the Court. . This appeal is by the owners from a final decree declaring mechanic’s liens on their premises in favor of three subcontractors, the appellees. The Crane Company filed the original bill to enforce its claims as a subcontractor for a mechanic’s lien.

<p>1. Warehouseman—when guilty of breach of contract. A warehouseman who agrees to store the effects of the owner in a particular room and stores such effects in such room, but subsequently, without the consent of such owner,-moves such effects to another room, is guilty of a breach of contract.</p> <p>2. Warehouseman—when not liable for breach of contract. Where a warehouseman is guilty of a breach of contract in removing property stored from one room to another, he is not liable for injury resulting to such property, unless such breach was the proximate cause of the injury.</p> <p>3. Breach of contract—when damages may be recovered for. The rule as to damages for the breach of a contract, or for negligence, is that the party guilty of such breach, or of such negligence, is responsible only for the proximate, and not for the remote consequences of his act or conduct.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Host. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. This is a suit to recover for personal injuries suffered by appellee while in appellant’s employ. The declaration contains three counts.

<p>1. Negligence—particular instructions upon, held properly refused. Instructions upon this subject as follows:</p> <p>“That even if the jury should find that appellant was negligent in moving its train backward without warning, this fact should not be taken into consideration in fixing the liability of the appellant;</p> <p>“That even if the jury should find that appellant was negligent in moving the train while the gates were open, this fact should not be taken into consideration in fixing the liability of the appellant;</p> <p>“ That if the jury believed that appellee stepped from the car after it began to move back, they should find for the appellant ”,— held, properly refused.</p> <p>2. Alighting—when act of, not negligence. If a passenger was proceeding to get off a car when the train suddenly started backward and the impetus of the motion of such passenger, together with the sudden starting of the car, carried such passenger forward without volition upon the part of such passenger, it is immaterial whether the act of stepping off occurred an instant before or an instant after the car began to move.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Frost, Judge, presiding! Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. This was an action by appellee to recover for personal injuries.

Contest in court of probate. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. Appellant presented to the Probate Court of Cook County a claim against the estate of Bridget McGuirl, deceased, for the sum of $180, which was allowed.

Bill to enforce compliance by legatees with directions contained in will, Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court.

Bill in nature of creditor’s bill. Error to the Circuit Court of Cook County; the Hon. Thomas G-. Windes, Judge, presiding. Heard in this court at the October term, 1903. Statement by the Court. The following in quotation marks is taken from the argument of counsel for plaintiffs in error, and is substantially correct: “ May 23, 1901, a bill was filed by F. A. Smith et al., creditors of one John Dreucker, to have a certain warranty deed declared a mortgage.

Habeas corpus proceeding. Appeal from the Circuit Court of Cook County; the Hon. John L. Healy, Judge, presiding. Heard in this court at the October term, 1905. Statement by the Court. This is an appeal from a judgment in habeas corpus.

<p>1. Cemetery lot—right of way acquired by owner of. The owner of a cemetery lot aquires the right to pass back and forth through the cemetery grounds over the constructed walks or avenues, if there be such, leading from the gate of the cemetery to his lot.</p> <p>2, Cemetery association—when not guilty of negligence. The owner of a lot in a cemetery has no implied license to roam at will through all of the cemetery grounds, nor is a cemetery association charged in law with the duty of maintaining all of its grounds in a reasonably safe condition for persons thus roaming through them, and such an association is not guilty of actionable negligence where one, through the owner, enters upon the cemetery grounds and is injured while walking upon a portion of such grounds other than the roads and pathways expressly provided by the association as the means of reaching the lot to which such person had a right of way.</p>

Assessment of damages upon dissolution of injunction. Appeal from the Circuit Court of Cook County; the Hon. John L. Healt, Judge, presiding, Heard in this court at the October term, 1905. Statement by the Court. This is an appeal from a decree for damages in the sum of $500, in favor of the appellees, rendered on the dissolution of an injunction sued out by appellants.

Claim in chancery against receiver. Appeal from the Circuit Court of Cook County; the Hon, Julian XV, Mack, Judge, presiding. Heard in this court at the March term, 1905, Statement by the Court. In January, 1891, the Pacific Bail way Company, an Illinois corporation, became insolvent.

<p>1. Forcible detainer—ibhen objection, to complaint in, comes too late. An objection to the sufficiency of the complaint in forcible detainer should be presented in the form of a motion to quash, and an objection raised after the trial has actually commenced comes too late.</p> <p>2. Forcible detainer—description in complaint need not conform to lease. In an action by the owner of premises to recover property held under a lease, it is not essential that the description in the lease 9.ndin the complaint should be identical; the complaint should describe the premises properly and then it may be shown upon the trial that the tenant entered into and kept possession of the premises under the lease.</p> <p>3. Forcible detainer—when complaint sufficiently describes. A description in a complaint in forcible detainer need not be technically correct; a general description will do, if from it the property can be located.</p> <p>4. Forcible detainer—who proper parties to. Persons in possession under the actual lessees are proper parties defendant to an action of forcible detainer.</p> <p>5. Lease—when tenant estopped to deny description contained in. Where a tenant has enjoyed premises under a lease for its full term, he will not be heard to say that such premises are not well described in the lease.</p> <p>6. Lease— when execution of, cannot be denied. The execution of a lease cannot be denied in an action of forcible detainer where no verified plea denying such execution has been interposed.</p> <p>7. Errors—when will not be considered. Errors not assigned will not be considered on appeal.</p>

Bill of review. Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1905. Statement hy the Court.

Action of assumpsit. Error to the County Court of Cook County; the Hon. Dwight C. Haven, Judge, presiding. Heard in this court at the October term, 1905. Statement by the Court. April 19, 1905, Walker brought an action in assumpsit against Christie in the County Court. The declaration was filed the same day, accompanied by an affidavit stating the amount claimed to be due at $1,000. May 10, 1905, Christie filed a plea of the general issue.

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1905. Statement hy the Court. October 15, 1901, appellee, then eighteen years of age, entered the employ of appellant as a workman in its supply house in the city of Chicago. This building is four stories in height.

Foreclosure proceeding with cross-bill seeking mechanic’s lien. Error to the Circuit Court of Cook County; the Hon. John L. Healt, Judge, presiding. Heard in this court at the October term, 1905. Statement Tby the Court. November 8,1900, the Northern Trust Company, trustee, filed three separate bills to foreclose certain trust deeds upon lots six, seven and eight, respectively, in Sidney A. Kent’s subdivision, etc., in Cook county, Illinois.

Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1905. Statement by tbe Court. This is an appeal by the appellant, a fraternal beneficiary society organized under the laws of the State of Illinois, from a judgment rendered against it by the Superior Court of Cook County in favor of appellee January 7, 1905, for $2,000.

Bill to enforce vendor’s lien. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1905. Statement by the Court.

Bill in equity to enforce benefit certificate. Appeal from .the Superior Court of Cook County; the Hon. Theodore Brbntano, Judge, presiding. Heard in this court at the October term, 1905. Statement by the Court. This is an appeal from a decree of the Superior Court ordering the appellant to pay to the appellee out of a certain fund in its possession the sum of $1,500 with interest and costs.

Bill in equity to determine ownership of funds arising from benefit certificate. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in tiie Branch Appellate Court at the October term, 1905. Statement by the Court.

<p>1. Parent and child—;jurisdiction of court of chancery independent of statute. Chancery has jurisdiction, whenever it appears that the parents are grossly unfit to care for their child and fail in that respect, to interfere and deprive them of the custody of their child and appoint a suitable person or persons to act as guardian and care for the same.</p> <p>2. Habeas corpus—when criminal court without jurisdiction to entertain petition for. Where the Circuit Court has jurisdiction over a child and has by its order exercised such jurisdiction with respect to its custody, retaining the power to modify such order, the Criminal Court is without jurisdiction to entertain a petition for the writ of habeas corpus which would in effect review the action of such court.</p>

<p>1. Bill op interpleader—what essential to valid. The essential elements necessary to be shown in a valid and sufficient bill of inter-pleader are (1) the same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded; (2) all their adverse titles or claims must be dependent or be derived from a common source; (3) the person asking the relief, the complainant, must not have or claim any interest in the subject-matter; and (4) he must have incurred no independent liability to either of the claimants, that is, he must stand perfectly indifferent between them, in the position of a stakeholder.</p> <p>2. Bill op interpleader—lies to determine right to real estate commissions. The necessary essentials appearing, a bill of interpleader lies to determine to which of several claimants real estate commissions, admitted to be due to some one, should be paid.</p>

<p>Proceeding under Burnt Records Act. Error to the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honobe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. This is an appeal by the plaintiff from a judgment upon a directed verdict of not guilty in an action on the case for personal inj'uries. At the close of the evidence for the plaintiff, defendant moved that the jury be instructed to find the defendant not guilty.

<p>Action on the case for personal injuries. Error to the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at .the October term, 1905.</p>

In junctional proceeding. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court.

<p>Bill to contest will. Appeal from the Circuit Court of Cook,County; ■the Hon. Harry Higbee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p> <p>Statement by the Court. This is a proceeding in chancery, appellants seeking to set aside an alleged nuncupative will as follows:</p> <p>“ Will.</p> <p>Be it remembered that upon the twenty-second (22nd) day of April, A. D. 1901, Sarah J. Leonard, a citizen of the State of Illinois and domiciled in said state, but temporarily sojourning at Thomasville, in the State of Georgia, being at the point of death, disposed of her earthly goods by the following declaration addressed to Charles L. Bingham, in the presence of Bessie Blackshear, T. M. McIntosh and Harriet Davis, namely :</p> <p>Testatrix said to said Bingham, ‘ I have never made a will. I want to give you everything I own, to do with it as you please.’</p> <p>Said Bingham then asked the testatrix, 1 How much do you wish me to give to Jennie and Carrie ? ’ To which testatrix replied, ‘ Use your own judgment.’</p> <p>Said Bingham then asked the testatrix, ‘ Shall I give the grandchildren and your nephew and niece in Minnesota equal amounts ? ’ To which the testatrix replied, 1 Do as , you please. Use your own judgment.’</p> <p>Said Bingham then asked the testatrix, ‘Would you like to have me remember your brother?’ To which the testatrix replied, ‘Yes.’</p> <p>Said Bingham, then said to the testatrix, ‘Now, Mother, is there anyone else in the world you would like to have me remember?’ To which the testatrix replied ‘No.’</p> <p>Said Bingham then said to the testatrix, ‘You give me all your property to do with it as I please. You wish to have me specially remember Jennie, Carrie, your niece and your nephew in Minnesota and the grandchildren, and your brother, and there is no one else you wish me to remember. Now, is this exactly right, and your final wishes for the disposition of your property which you desire Miss Black-shear, Dr. McIntosh and Auntie Davis to witness?’ To which the testatrix replied, ‘Yes.’</p> <p>Bessie Blackshear, T. M. McIntosh and Harriet Davis, being duly sworn, depose and say that they were present together at the deathbed of Sarah J. Leonard at Thomas-ville, Georgia, upon the 22nd day of April, A. D. 1901; that they heard the words spoken by Charles L. Bingham and the words spoken by Sarah J. Leonard above set forth; that they believe said Sarah J. Leonard was at that time of sound mind and memory; that said Sarah J. Leonard declared as above set forth that she wished these deponents to witness •what she said as her final disposition of her earthly goods; that said words were spoken by Sarah J. Leonard in the afternoon of the 22nd day of April aforesaid, and she died upon the same day and within a few hours thereafter.</p> <p>Bessie Blackshear, her</p> <p>Harriet X Davis, mark.</p> <p>Subscribed and sworn to before me at Thomasville, Georgia, this 29th day of April, A. D. 1901.</p> <p>W. H. Bibb, Notary Public.</p> <p>We, the undersigned, hereby certify that the foregoing instrument was written this 27th day of April, A. D. 1901.</p> <p>Wm. H. Swiet,</p> <p>Harriet G. Templeton.”</p> <p>The alleged will is contested by Giles L. Isham, brother of the testatrix, Howard Isham, her nephew, and Edyth Isham, her niece, her only heirs at law. The proponents are Charles L. Bingham, claiming under the will as sole legatee, his wife, Jennie Bingham, and her sister, Carrie L. Woodford, who are mentioned in the instrument. The testatrix was the second wife of Daniel Leonard, father of Mrs. Bingham and Mrs. Woodford. She had no children of her own.- The two step-daughters were about eleven and thirteen years of age when their father married Sarah J. Isham, the testatrix. Her relations with these stepchildren were apparently affectionate and cordial. The children of Mrs. Bingham and Mrs. Woodford are spoken of in the will as “the grandchildren.” Charles L. Bingham, husband of Jennie Bingham, had attended to Mrs. Leonard’s business affairs for a number of years before her death. She had been accustomed to make frequent and lengthy visits to his family. At the time of her death her money, amounting to over $20,000, was deposited in his name.</p> <p>Mrs. Leonard’s death occurred in Thomasville, Georgia, where she had gone for the benefit of the milder climate. April 19, 1901, Bingham received a telegram from a Miss Blackshear, with whom Mrs. Leonard was stopping and at whose house she died, informing him that Mrs. Leonard was very ill and that “doctors advise please come at once.” The next day he received a second message: “Dysentery; some better this morning. Think you had better come.” He accordingly went to Thomasville, arriving there April 22, 1901. In the afternoon of that day at about 2:30 p. m. Mrs. Leonard is said to have made the nuncupative will in controversy. It was reduced to writing April 27th following, after Mr. Bingham had returned to Chicago. It was then sent to Thomasville, where it was signed and sworn to April 29, 1901, by the subscribing witnesses. Mrs. Leonard’s illness began with an attack of dysentery and culminated, according to the testimony of her attending physician, Dr. T. M. McIntosh, in an acute attack of Bright’s disease.</p> <p>Dr. McIntosh was not present when at 2:30 p. m. of April 22nd, the nuncupation in question is said to have been made. Later in the afternoon about 3 p. m. when he called there an effort was made by proponent Bingham to have Mrs. Leonard repeat it in substance in the doctor’s presence. This effort seems to have failed. Mrs. Leonard died about 7 p. m. of that day, .April 22, 1901.</p> <p>By stipulation a jury was waived and the issues submitted to the court. Upon hearing the Circuit Court dismissed the bill for want of equity, holding the instrument in controversy to be the will of Sarah J. Leonard, deceased.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1905.</p>

<p>1. Amendment—when allowance of, after argument of motion for new trial, not improper. It is not an abuse of discretion to permit the plaintiff to amend his declaration after the motion for a new trial has been argued by the defendant where the allowance of such amendment does not operate to the prejudice of such defendant.</p> <p>2. Peremptory instruction—what question presented by motion for. A motion to take a case from the jury presents the naked legal question whether there is any evidence in tlie record tending to support the plaintiff’s case.</p> <p>3. Fellow-servant—master not liable for breach of duty by. A master is not liable for the neglect of a fellow-servant to acquaint the plaintiff of a danger which resulted in his injury.</p> <p>4. Master—cannot delegate personal obligation. A master cannot delegate the duty of furnishing safe instrumentalities and so escape the liability for failure to furnish such safe instrumentalities.</p>

<p>Action of debt. Appeal from the Circuit Court of Madison County; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the August term, 1905.</p>

<p>I. Release—when personal representative barred by, given by his intestate. A release from liability for personal injuries given by the person injured bars the personal representative of such person from t maintaining an action against the party claimed to have negligently caused the same where such injuries ultimately have resulted in death.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Marion County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the August term, 1905.

<p>Action oh tiie case for injury to real property. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyer, Judge, presiding. Heard in this court at the August term, 1905.</p>

Action .on the case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyer, Judge, presiding. Heard in this court at the August term, 1905.

<p>1. Verdict—when not set aside as excessive. Unless the sum fixed by the jury is so grossly excessive as to indicate prejudice, passion or sympathy, courts are not disposed to interfere.</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 August term, 1905.

<p>1. Fraternal benefit society—when engagement in prohibited occupation will defeat recovery under benefit certificate. The engagement by a member in an occupation prohibited by his contract of insurance will defeat a recovery by his beneficiaries under the certificate issued upon his life.</p>

<p>1. Continuance—when denial of, proper. The denial of an application for a continuance based upon the sickness of the defendant is proper where the affidavit therefor did not show by facts set up that his presence at the trial, to aid his counsel, was necessary or that his testimony was material.</p>

<p>1. Change of venue—when effected by operation of law. Where it appears that the county judge was interested as a material witness in an application to sell real estate to pay the debts of a decedent, the statute is imperative that the case be transferred to the Circuit Court and there determined, and such transfer is deemed to have been made by operation of law.</p> <p>2. Change of venue—when statute relating to costs and limitation of one change, does not apply. This statute does not apply where the change of venue has been effected by operation of law, as appears in the first paragraph of syllabus.</p>

Action on the case for malicious prosecution. Appeal from the Circuit Court of Jackson County; the Hon. Warren W. Duncan, Judge, presiding. Heard in this court at the August term, 1905.

Action commenced before justice of the peace. Error to the Girev it Court of Wabash County; the Hon. E. D. Youngblood, Judge, presiding. Heard in this court at the August term, 1905.

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, 1905.

<p>Forcible entry and detainer. Appeal from the Circuit Court of Union County; the Hon. William N. Butler, Judge, presiding. Heard in this court at the August term, 1905.</p>

<p>Action of replevin. Appeal from the Circuit Court of Marion County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the August term, 1905.</p>

Action on the case for death caused by alleged wrongful act. 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, 1905.

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair Count)-; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the August term, 1905.

<p>Action commenced before justice of the peace. 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, 1905.</p>

<p>Attachment proceeding. Appeal from the Circuit Court of Effingham County; the Hon. WilliamM. Farmer, Judge, presiding. Heard in this court at the August term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Johnson ' County; the Hon. Warren W, Duncan, Judge, presiding. Heard in-this court at the August term, 1905.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Marion County; the Hon. Samuel M. Dwight, Judge, presiding. Heard in this court at the August term, 1905.

Action of trespass for wrongful ejection. Appeal from the Circuit Court of St. Clair County; the Hon. B. D. W. Holder, Judge, presiding. Heard in this court at the August term, 1905.

Action on the case for personal injuries. Appeal from the Circuit Court of Clinton County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the August term, 1905.

Action commenced before justice of the peace. Error to the County Court of Wayne County; the Hon, John R. Holt, Judge, presiding. Heard in this court at the August term, 1905.

<p>1. Conveyance—how construed. A deed conveying land situated in another state must be construed according to the laws of that state,-notwithstanding both grantor and grantee therein named resided in Illinois.</p> <p>2. Judicial notice—of what not taken. Judicial notice is not taken of the statutes of another state; where relied upon they must be averred and proved.</p> <p>3. Sister state—presumption as to law of. In the absence of anything to show the contrary, the presumption is that the common law rules prevail.</p>

Information by attorney-general praying for injunction. 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.

Action on the case for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the August term, 1905.

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