Volume 127 — Illinois Appellate Court Reports

<p>1. Contract—what courts may looh to in construing ambiguous. Where a contract is ambiguoys, the court may look to the construction which the parties have placed upon it in order to ascertain its true meaning.</p> <p>2. Sale—contract held not one of. Held, that the particular contracts involved in this case were commission contracts rather than of bargain and sale.</p>

<p>1. Res judicata—when decree is not. A decree in a case which did not involve or determine the property rights in issue in a subsequent proceeding, is not res judicata in such subsequent proceedings.</p>

<p>Creditor’s bill. Appeal from the City Court of East St. Louis; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the August term, 1905.</p>

<p>Arbitration under statute. 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>1. Fraternal benefit society—sick benefits may be recovered by administrator after death of member. In addition to the death claim, which can only be recovered by the beneficiary, the administrator of a deceased member may recover sick benefits which became due such beneficiary in his lifetime.</p> <p>2. Variance—when objection of, comes too late. An objection of variance cannot be first raised on appeal.</p> <p>3. Witness—when interest does not disqualify. A party in interest is competent to testify in favor of the estate represented by the adverse party litigant.</p> <p>4. Plaintiff’s title—defendant cannot attack. It is no concern of the defendant in an assumpsit suit whether he has or has not assigned his interest in the claim in controversy.</p> <p>5. Bill of exceptions—when, does not purport to contain all the evidence. The absence of the certificate of the judge that the bill of exceptions contains all the evidence is not supplied by the certificate to that effect signed by the official reporter who furnished the transcript.</p>

<p>Action on the cáse for personal injuries. Error to the Circuit Court of Madison County; the Hon. Benjamin B. Burroughs, Judge, presiding. Heard in this court at the August term, 1905.</p>

<p>1. Peremptory instruction—token should be refused. A peremptory instruction should be refused where there is evidence tending to show the plaintiff’s right to recover.</p> <p>3. Safe place to work—when duty of one not master to furnish reasonably. One who authorizes work to be done, controls the place where it is done, directs what and how much shall be done, and when it shall be done, sustains such a relation to one whose duty ibis to assist in the doing of such work as obligates him to exercise reasonable care to furnish a reasonably safe place to work, even though the person whose duty it is so-to assist is not directly in his employ.</p> <p>3. Safe place to work— extent of master's obligation to furnish. It is not the absolute duty of the master to furnish a reasonably safe place to work; it is only his duty to exercise reasonable care to furnish such a place.</p> <p>4. Res ipsa loquitur—when doctrine of, does not apply. The placing of a coal house in close proximity to railroad tracks does not raise a presumption of negligence.</p> <p>5. Negligence—extent of proof of, required. It is not incumbent upon the plaintiff to prove all the averments of negligence made in the declaration; it is enough if any negligence charged in the declaration is established.</p> <p>6. Ordinary care—what sufficiently establishes exercise of. Where the circumstances attending the accident are in evidence and show no fault on the part of the party injured, this will justify an inference and be accepted as proof of the exercise of due care.</p> <p>7. Evidence—may be competent notwithstanding it tends to prove affirmative negligence not counted upon. Evidence may be competent for the purpose of establishing the environment of and conditions surrounding the injury in question, notwithstanding it may likewise tend to establish affirmative evidence not relied upon in the declaration.</p> <p>8. Instructions—must not ignore material issue. An instruction which directs a verdict for the plaintiff if the facts specified therein are found, is erroneous, if it omits a material issue which must be adjudged in favor of the plaintiff before he is entitled to recover.</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>1. Instructions—when errors in, will not reverse. Slight errors will not reverse where substantial justice between the parties appears to have been done.</p>

Action on the case for fire alleged to have been communicated by locomotive. Appeal from the.Circuit Court of Jackson County; the Hon. Warren W. Duncan, Judge, presiding. Heard in .this court at the August term, 1905.

<p>Action on the case for slander. 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>

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.

<p>Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Motees, 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 St. Clair County; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the August term, 1905.

<p>1. Service of summons—sufficient notwithstanding copy of summons lacks seal. A purported copy of a summons is sufficient for all purposes of service if its only defect is the absence of the representation of a seal or any indication that a seal was contained upon the original.</p>

<p>1. Statute of Limitations—law of forum governs. As the Statute of Limitations applies only to the remedy and not to the right, the statute in force in the state in which the action is brought applies.</p> <p>2. Comity—how statutes of foreign state construed. Statutes of a foreign state must receive the same interpretation in the courts of this state as is given them in the courts of their own state.</p> <p>3. Penal—when liability is, rather than contractual. The liability imposed by statute upon bank officials to pay the deposits that their bank received after insolvency, is penal rather than contractual.</p>

<p>Bill for partition. 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>

<p>Motion to re-tax costs. Appeal from the City Court of East St. Louis; re-docketed by leave of court February term, 1906.</p>

<p>1. Funeral expenses—who may lawfully contract for. The wife of the deceased, another acting by her authority, and a stranger, under certain circumstances, may contract for .the funeral of a deceased person, and pay for the same, and the expenses, if reasonable, will be allowed to such person out of the estate of such deceased.</p> <p>2. Order for payment of money—presentment may be waived. The formal presentment of an order for the payment of money may be waived and an acceptance implied from conduct.</p>

Action on the case for death caused by alleged wrongful act. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1905,

<p>Action commenced before justice of the peace. Appeal from the Criminal Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Finding of fact—when will hot be disturbed. When the finding of the master upon questions of fact has been approved by the chancellor, unless it can be said from an examination of the record that the weight of the evidence is clearly and manifestly against the finding, it will not be disturbed on review.</p> <p>2. Collateral—when power to collect, appears. Where collateral is loaned in order that it may be. used for the purpose of borrowing money, the person receiving such collateral has like power to collect the same as though the borrowing had been done by the owner of such collateral.</p> <p>3. Accommodation paper—consideration not essential to support. A consideration passing from the original payee to the maker of accommodation paper is not necessary to its validity, it being considered that the maker of such paper by his signature holds himself out to the public to be bound to every person who shall take the paper for value the same as if it was paid to himself. The fact that the holder of accommodation paper knew when he took it that it was accommodation paper, will not affect his right to a recovery thereon, and if there be restrictions as to its use, notice of such restriction must be brought home to the person who receives the same for value in order that he may be bound by the sate.</p> <p>4. Accommodation paper—inquiry as to restrictions of use not required. One who receives the pledge of collateral security is not bound to inquire as to any restrictions which may have been placed upon its use.</p>

<p>1. Lease—when party estopped to deny validity of. A party who has signed a lease which runs for a longer period than a year is estopped to urge that it is within the Statute of Frauds by reason of its having been signed by an agent of the other party whose authority in writing has not been shown.</p> <p>2. Lease—effect of assignment of, by lessee. The assignment of a lease by the lessee does not operate to discharge him from any of its covenants.</p> <p>3. Confess judgment—when power to, contained in lease, validly exercised. Such a power which provides for the confession of amounts due for gas bills, as well as for rent due and unpaid, is validly exercised where the basis of the exercise was only the installments of rent due and unpaid, which were liquidated amounts.</p> <p>4. Judgment by confession—presumptions which aid. All presumptions are in favor of the regularity of a judgment entered by confession in term time by a court of general jurisdiction.</p> <p>5. Judgment by confession—what specific presumption indulged in support of. Where a judgment was entered in term time by a court of general jurisdiction, the presumption is that the attorney who confessed the same was an attorney of record, authorized to practice in the courts of this state.</p> <p>6. Judgment by confession—what essential to set aside. In order to entitle a party to have a judgment entered by confession set aside, it must appear by affidavit that there is a meritorious defense to the whole or to a part of the judgment in question.</p>

<p>Mandamus proceeding. Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Bill of interpleader. Error to 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 Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October term, 1905.

<p>■ 1. Measure of damages—in action for injury to real property. In an action for injury to real property by physical invasion the measure of damages is the cost of restoration or the difference in market value, before and after the invasion, according to which is the lesser amount.</p>

Action on the case for personal injuries. Error to the Circuit Court of Cook County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the October term, 1905.

<p>1. Decree—when not sufficiently supported. A decree which is not supported by specific findings of fact, nor by the preservation of the evidence heard, will be reversed on writ of error in divorce, as in other chancery proceedings.</p> <p>2. Decree—when amendment of, without jurisdiction. An amendment of a decree made after the lapse of the decree term without memorial upon which to predicate the amendment, is void.</p> <p>3. Divorce—token decree of, erroneous. A decree of divorce which provides for the payment of solicitor’s fees to the solicitor and not to the wife, is erroneous.</p>

<p>t. Gift—when complete. Delivery of stock certificates, accompanied by appropriate words indicating the intention to transfer title by gift, accompanied by subsequent possession in the donee, shows prima facie title.</p> <p>2. Administrator— character of title received by. An administrator acquires no better title than his intestate had; what his intestate could not do, if living, he cannot do, in so far as the matter of setting aside a gift is concerned.</p> <p>3. Personal property—remedy for wrongful conversion of. The proper forum for the determination of the question of the ownership of personal property is at law and notin equity.</p> <p>4. Intervene—how right to, governed in Illinois. The right of intervenfcion in equity in Illinois is governed by the general rules of equity.</p> <p>5. Intervene—what interest will entitle party to. The interest which will entitle a party to intervene in equity must be an interest in the matter about which the litigation is to be, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>1. Statute of Limitations—Act of April 4,1872, construed. This act does not apply to cases in which a reversal accompanied by a ventre facias de novo is awarded, but only applies where there is a reversal without remandment.</p>

<p>Mandamus proceeding. Error to the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>1. - Placita—tti/iera not required for each term. One placita, that for the term of judgment, is sufficient to show the legal organization of the court which has heard and determined a case sought to be reviewed.</p> <p>2. Separate maintenance—Superior Court of Cook County has jurisdiction of proceeding for. Concurrently with the .Circuit Court, the Superior Court of Cook County has jurisdiction to hear and determine a separate maintenance proceeding.</p> <p>3. Separate maintenance— custody of children may he disposed of in proceeding for. In a proceeding for separate maintenance it is within the power and jurisdiction of the court to dispose of the custody of the children of the parties litigant.</p> <p>4. Alimony— decree for, may he made a lien on real estate. Not by virtue of the provisions of the Divorce Act, but by reason of the Chancery Code, the chancellor is empowered to make the payment of alimony a lien upon the real estate of the husband.</p> <p>5. Findings of fact—when will not be disturbed. Where the testimony is conflicting a court of review will not disturb the finding of the chancellor upon a question of fact, unless it is clearly apparent that the chancellor has committed error.</p> <p>6. Solicitor’s fees—allowance for, should be made to wife. A decree allowing solicitor’s fees should be made in favor of the wife and not in favor of her solicitor.</p>

<p>Partition proceeding. ' Appeal from 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 for fraud and deceit. Appeal from the Circuit Court of Moultrie County; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1905.

<p>Action of assumpsit. Appeal from the Circuit Court of Logan County; the Hon. Thomas A. Harris, Judge, presiding. Heard in this court at the November term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Moultrie County; the Horn, James W. Craig, Judge, presiding. Heard in this court at the November term, 1905.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Coles County; the Hon. James W. Craig, Judge, presiding. Heard in this court at the November term, 1905.

<p>1. Plea to jurisdiction—uihen error with respeet to ruling upon, ivaived. By pleading to the merits, an error of the court in adjudging a plea to the jurisdiction of the court insufficient, is waived.</p> <p>2. Contract—what sufficient performance. In some classes of contracts strict performance is not required, substantial performance being sufficient.</p>

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

<p>1. Municipal corporation—when may recover money paid under executed illegal contract. A municipal corporation may recover money paid by it under a contract completely performed and of which it has received the full benefits, if such contract was prohibited by law.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1905.

Petition to sell real estate to pay debts. Appeal from the Circuit Court of Pike County; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the November term, 1905.'

<p>1. Chancellor—weight given to findings of fact by. Findings of fact made by a chancellor who has seen and heard the witnesses will not be. set aside, unless clear and palpable error has been committed;</p>

<p>1. Cross-examination—what does not raise question of propriety of. A general objection made upon cross-examination raises only questions of relevancy and materiality, and does not preserve for review the question as to whether the cross-examination was without the scope of the direct.</p> <p>2. Fraudulent conveyance—when grantee participates ■ in. A grantee is deemed to have participated in and become a party to a fraudulent conveyance where he has notice of the grantor’s fraudulent intent to defeat the claims of creditors by making such conveyance; and this notwithstanding he may have paid some consideration for the conveyance.</p>

<p>Bill in chancery. Error to the Circuit Court of Moultrie County; the Hon. W. C. Johns, Judge, presiding. Heard in this court at the November term, 1905</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1905.

<p>1. Cross-examination—what improper upon. It is error to permit a cross-examiner to interrogate with respect to matters entirely foreign to those elicited upon the examination in chief.</p> <p>2. Jury—what not entitled to .take upon retirement. Upon retirement to consider of their verdict, the jury are not entitled to take with them a bill of particulars filed in the cause.</p> <p>3. Instruction—when modification improper. Held, that the insertion of the words “particular items in question”, in an instruction given, was an improper and erroneous modification.</p> <p>4. Instruction—must not ignore ground of defense. An instruction is improper which ignores one of the substantive grounds of defense, and is therefore properly modified when the modification cures such vice.</p> <p>5. Bond—extent of sureties’ liability upon. Sureties upon a bond are only liable for defalcations made with respect to funds in -the hands of the principal at the time of the execution of the bond and with respect to funds which subsequently came into the hands of such principal.</p>

Action on the case for personal injuries. Error to the Circuit Court of Champaign County; the Hon. Solon Philbriok, Judge, presiding. Heard in this court at the November term, 1905.

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

Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1905.

Action on the case for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1905.

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit'Court of Adams County; the Hon. Albert Akers, Judge, presiding. Heard in this court at the November term, 1904.

Action on the case for injury to crops, etc. Appeal from the Circuit Court of Ford County; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the May term, 1905.

Action commenced before justice of the peace. Appeal from the Circuit Court of Adams County; the Hon! Albert Akers, Judge, presiding. Heard in this court at the November term, 1905,

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

<p>Prosecution under Dram-Shop Act. Appeal from the Circuit Court of Fulton County; the Hon. G. W. Thompson, Judge, presiding. Heard in this court at the November term, 1905.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Moultrie County; the Hon. James W. Ceaig, Judge, presiding. Heard in' this court at the November term, 1905.

<p>I. Innocent holder for value—when not protected against defense of maker of promissory note. One who has received before raaturity the transfer of a promissory note for value and without notice, is not protected as to any defense which grows out of the same transaction as that which gave rise to the making of such note, unless the same was actually indorsed before maturity.</p>

Action on the case for personal injuries. Error to.the Circuit Court of Vermilion County; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1905.

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

<p>Bill to enforce vendors lien. Appeal from the Circuit Court of Logan County; the Hon. J. H. Moffatt, Judge, presiding. Heal’d in this court at the November term, 1904.</p>

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

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1905.

<p>1. Freehold—when involved. A freehold is involved in a proceeding to remove a cloud where the necessary result of such proceeding is that one party gains and the other loses a freehold estate.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1905.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Shelby County: the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the November terzn, 1905.

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

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1905.

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

<p>1. Res jxjdioata—decision upon one appeal is, upon second appeal of same case. The decision upon one appeal of a case is, with respect to a question decided upon such appeal, res judicata as to the same question upon a second appeal of the same case.</p> <p>3. Redemption—ioIio entitled, to rents during running of period of. A mortgagee whose security pledges the rents during the period of redemption is entitled to the same until his debt shall have been fully satisfied.</p> <p>3. Receiver—to what allowance, is entitled. A receiver is entitled to an allowance for his disbursements, when properly made, and likewise to a reasonable compensation for his services.</p> <p>4. Jurisdiction—ejfect of reservation of question for future decision. A reservation of jurisdiction to decide a particular question has the effect of continuing the jurisdiction of the court with respect to such matter until the same has been adjudicated.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Wages—act providing for preference to, due from insolvent estate, construed, A judgment against the debtor, finding that the claim in question is for wages, is, even as to third parties, a sufficient and conclusive adjudication of the character and amount of such claim so as to entitle it to the lien and preference provided for by the act in question.</p> <p>2. Wages—aef providing for preference to, due from insolvent debtor, construed. The judgment required by statute to be obtained where the claim for wages filed against the estate of the insolvent debtor has been excepted to, is a simple judgment at law; a proceeding in equity, making the creditors and others in interest parties, is not necessary.</p> <p>3. Wages—act providing for preference to, due from insolvent debtor, construed. The lien provided for under this act, in some circumstances, continues after the possession of the property has passed from the officer or court seizing or having possession of the same, and in such case continues until discharged, and equity may be resorted to to enforce tire same.</p> <p>4. Judgment -when proof of, established. The absence of the placita and recitals as to the court in which a purported judgment was rendered, does not affect the sufficiency of the proof made by such other offered document, where no such specific objection was interposed.</p> <p>5. Judgment— how may be proved. A judgment may be proven by a sworn copy of the judgment docket.</p> <p>6. Judicial notice—of what taken. Judicial notice will be taken by courts of its own records.</p> <p>7. Answer—ejfeet of admission contained in. A party cannot upon review assert a theory which is contradicted by the admissions contained in the answer filed by him.</p>

<p>Mechanic’s lien proceeding. Error to the Circuit Court of Cook County; the Hon. Edwabd F. Dunne, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Instructions—how must be construed. Instructions urged as erroneous must be considered in connection with the other instructions given in the cause and in the light of evidence upon which they are predicated.</p> <p>2. Instructions—need °not repeat. The court may properly refuse an instruction which if given would be a mere repetition of another instruction read to the jury.</p> <p>3. Instructions—when reference to wrong municipal body in, will not reverse. The inadvertent use by the court of the words “ civil service commission” instead of “ board of county commissioners ” will not reverse where the inadvertence is cleared by reference to the entire body of instructions.</p>

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

<p>1. Special deposit—when does not exist. Where money is placed in the keeping of a third party without a special understanding that the same shall-be kept separate and apart from the personal funds of the custodian, a special deposit is not created.</p> <p>"8, Check—when bank may refiise to pay. A bank may properly refuse payment of a check where the drawer has not sufficient funds to meet the same, unless it appears that the bank is apprised of and is a party to a trust arrangement between the drawer and the payee of such check.</p> <p>3. Errors—what, appellant cannot assign. A party appellant cannot assign errors which do not relate to his interest in the controversy.</p>

<p>1. Malice—when appears within meaning of Insolvent Debtors’ Act. Where the arrest sought to be relieved against was made upon a capias issued in an action of trespass for assault and battery, a release cannot be obtained under the Insolvent Debtors’ Act, if the counts of the declaration are in appropriate form, as malice is the gist of such an action.</p> <p>2. Insolvent Debtors’ Act—when petitioner for discharge from arrest is not entitled to have question of malice retried. Where the declaration, and each count thereof, is in such form as to show malice to be the gist of the action, the petitioner for discharge is not entitled to have such question retried upon such application.</p>

<p>Bill in equity to set aside decree of adoption. Appeal from the Circuit Court of Cook County: the Hon. John L. Healy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>1. Exception—what necessary to review a judgment on the facts. To bring for review, on the facts, the record of a judgment when the case was tried by a jury, there must be an exception to the order denying the motion for a new trial; when the case was tried by the court, there must be an exception to the judgment.</p> <p>2. Safe place to work—what servant may assume. A servant is entitled to assume that the place where he has been ordered to work is reasonably safe; he is not bound to make a careful inspection of the place and its surroundings before entering upon such work, but he is bound to use reasonable care to discover danger and protect himself against it.</p>

Action on the case for death caused by alleged wrongful act. Error to the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdoh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

<p>1. Service of summons—who not agent of corporation for purpose of. A person who sells goods for a corporation upon commission, who pays his own expenses, is master of his own time and movements, and who is without authority to fix prices, collect accounts, or transact any other business for such corporation, is not an agent upon whom service can be had.</p> <p>2. Depositions—w7iera technical objections to, come too late. Technical objections to depositions come too late when made upon a motion to suppress entered just prior to the hearing where such depositions have been on file for more than three months previously.</p> <p>3. Depositions—when certificate of official character not essential to. A certificate of official character is not essential to the validity of depositions where they were taken by a commissioner duly appointed under a dedimus issued out of the clerk’s office.</p> <p>4. Contract— construed to give right to reject orders. The contract in this case held to reserve the right of the principal to reject, at his discretion, orders submitted by an agent.</p>

<p>1. Contributory negligence—when question one of law for the court. The question of contributory negligence is one of law for the court where the evidence, with all the inferences which can justifiably be drawn from it, shows with clearness, such that reasonable minds must agree without hesitation or dissent, that the injury in question was caused by the contributory negligence of the plaintiff,</p> <p>3. Foreman—when orders of, not within scope of duties; A command jokingly given by a foreman, and so understood by a servant, is not such a command as will justify such servant in taking a risk and unnecessarily encountering a danger to his life and limb.</p>

<p>1. Surety—when extension given by creditor to debtor will not discharge. While it is true that a valid and binding agreement between the principal debtor and the creditor, whereby the time of payment is extended without the consent of the surety, may release such surety, such an agreement, in order to have that effect, must be based upon sufficient legal consideration and the time of extension must-be definitely fixed.</p>

<p>Petition for allowance of solicitors’ fees. Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>Garnishment proceeding. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Made, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>Quo warranto proceeding. Error to the Circuit Court of Cook County; the Hon. Lockwood Honoke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>Action of debt. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

<p>1. Corporation—what powers can be exercised by, A corporation can only exercise those powers expressly granted by the legislature and those further powers which are incidental to the exercise of the powers so expressly conferred.</p> <p>2. Fraternal benefit society—cannot create life members of governing body. A fraternal benefit society has no power to fix the term of the office of a manager beyond that prescribed by statute.</p> <p>3. Fraternal benefit society—rights of charter members under. Charter members of a fraternal benefit society have no rights not common to other members.</p>

<p>1. Rebuttal—not ground for reversal to permit evidence of sanity to be offered in. While irregular, it is not ground for reversal to permit the proponents of a will to offer evidence in rebuttal as to the sanity of the testatrix.</p> <p>2. Sanity—when exclusion of evidence pertaining to question of, not ground for reversal. Where the evidence excluded was as to the mental condition of the testatrix at a time remote from the date of the execution of the will, a reversal will not follow.</p> <p>3. Instructions—when errors in, will not reverse. Errors in instructions which do not relate to the only controverted question in the case, will not reverse.</p>

<p>1. Conviction op crime—what affects credibility. It is only the conviction of an infamous offense that disqualified a witness at common law, and it is only evidence of the conviction of an infamous offense that can, under the statute, be shown for the purpose of affecting the credibility of a witness.</p> <p>2. Conviction op crime—what affects credibility. A conviction of petty larceny disqualified a witness at common law, and may therefore, under the statute, be shown to affect the credibility of such witness, by the witness himself.</p> <p>8. Witness—when child of nine years competent. A child of nine years is competent where it appears to have sufficient knowledge of the nature, obligation and effect of an oath.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Frost, Judge, presiding.. Heard in the Branch Appellate Court at the October term, 1905.

<p>1. Res judicata—when there is no question of, upon subsequent appeal. There is no question of res judicata arising upon a third appeal of a cause where the first decree was reversed because the master refused to consider the testimony taken before him by the defendant, and the second decree, namely, one dismissing the bill for want of equity, was reversed because the court permitted an exception to be taken which had not been interposed as an objection before the master and refused to re-refer the cause to the master upon sustaining such exception.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph B. Gaby, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

<p>Foreclosure proceeding. Appeal from the Circuit Court of Cook County, the Hon. John L. Healy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

<p>1. Gambling— how question as to whether transaction in grain constitutes, to be determined. Whether transactions in grain are legitimate or constitute gambling depends upon the intention of the parties. This intention may be ascertained from the transaction itself, the facts and circumstances attending it, and the defendant’s general manner of doing business, including other transaction's of a similar nature.</p> <p>2. Intention—when competent to permit party to testify to. It is competent to permit a party to testify as to whether he intended to deliver the grain sold by him, where there are other facts and circumstances in evidence which tend to support the answer given to such question.</p> <p>8. Arguments—how order of, determined. The right to open and close the arguments rests with the party upon whom the burden of proof has been cast.</p>

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

<p>1. Appeal bonds—given upon successive appeals cumulative. Bonds given upon successive appeals are cumulative in effect and the giving of the second does not discharge the first. The obligee may proceed upon either or both until he has obtained satisfaction of his judgment. They are separate contracts given to secure the payment of the same debt, and until that debt is liquidated the obligors in either are not advantaged by the fact that the creditor has brought an action upon the other.</p> <p>2. " Execution—ic/ien motion to stay, because of pendency of another suit, properly denied. Such a motion, for such a reason, is properly denied where no evidence is offered in support of the motion which tends to show the pendency of such other suit.</p>

<p>Contempt proceedings. Writs of error to the Superior Coúrt of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1905.</p>

Bill in equity to construe and enforce contract. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1905.

<p>1. Final order—effect of, made by Supreme Court. A final order entered on reversal in the Supreme Court operates as a mandate to the Circuit Court and it is bound to obey the same.</p> <p>2. Res judicata—effect of failure to assign cross-errors upon question of. A decree which has been before the Supreme Court and passed upon by it is conclusive with respect to all questions raised and passed upon, and also with respect to all questions which might have been raised by cross-errors, but which were not.</p>

<p>Mechanic’s lien proceeding. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Bill for accounting. 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 commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding. Heard in this court at the October term, 1905.

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Theodore Beextano, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Bill for specific performance. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1905.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1905.

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

<p>Action of slander. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Action of slander. Appeal from the Superior Court of Coot County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Preponderance of evidence—when jury warranted in finding that plaintiff has failed to make case by a. In an action of assumpsit where the testimony is given solely by the party plaintiff and the party defendant, and is irreconcilable, the jury is justified in determining that the plaintiff has failed to make out his case by a preponderance of the evidence.</p> <p>2. Evidence—admission of immaterial, not ground for reversal. Where a fact is uncontroverted, the admission of evidence tending to establish the same is not ground for reversal, even though such fact be immaterial. ' i</p> <p>8. Cross-examination—when too late to complain of refusal of witness to answer questions upon. If a witness fails upon cross-examination to answer questions put to him, it is the duty of counsel to call upon the trial judge to enforce such- answers, and failing so to do, complaint cannot be urged upon appeal because of such failure to answer.</p> <p>i. Exception—essential to preserve for review conduct of witness and juror. An exception should be entered in order to preserve for review the question of the impropriety, as ground for reversal, of a remark made by a witness and an answer given thereto by a juror during the progress of the trial.</p>

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

<p>Bill for injunction. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1906.</p>

<p>1. Publio official—what compensation, entitled to. A public official can only demand such compensation as the law has fixed and authorized for the performance of his official duties.</p> <p>2. Public official—when not entitled to extra compensation. An official who becomes a notary public is not entitled to collect from the city which employs him, extra compensation for taking acknowledgments as a notary public for parties other than such city.</p> <p>3. Corporation counsel—to what extent cannot bind city. The corporation counsel of a city, by approving a voucher calling for extra compensation to a public official, does not thereby bind the city.</p> <p>4. Commissioner of public works—to what extent cannot bind eity. The commissioner of public works cannot admit a liability upon the "part of the city and so bind the same if such obligation is not valid in law.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>1. Promise to pat—what not equivalent tó, A proposition to give a new note is not the equivalent of a promise to pay an indebtedness.</p> <p>3, Moral consideration—-what not sufficient to support new promise. A debt discharged by bankruptcy is not a debt paid, and the moral obligation to pay such debt is sufficient consideration to support a new promise to pay.</p> <p>3. Instruction—should not pertain to immaterial issue. An instruction which directs the attention of the jury to an issue immaterial in the case, is properly refused.</p>

<p>Action of debt. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding, Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>1. Verdict—effect of, upon questions of fact. Questions of fact fairly presented are deemed to have been settled by the verdict.</p> <p>2. Surety—reason upon which extension of time of payment to principal discharges surety. The general rule is that a binding agreement between a creditor and a debtor for an extension of time discharges the surety either on the legal ground that the obligation is thereby discharged or more generally upon the equitable ground that the surety’s right of immediate payment and subrogation is interfered with.</p>

<p>1. Reinsurance—when liability under contract of, cannot be revived. Where one party to. a contract of reinsurance" directs that the reinsurance policy be cancelled and such direction is concurred in, a revival of liability cannot be had without the concurrence of both parties to the contract of reinsurance. '</p> <p>2. Insurance policy—may be cancelled by agreement, notwithstanding statutory provision for extended insurance. Notwithstanding a statute, which by construction is a part of the contract itself, provides in the event of lapse the right to extended insurance shall exist, the parties may by agreement cancel such policy in toto.</p>