Volume 128 — Illinois Appellate Court Reports

<p>Action of assumpsit. Appeal from the Circuit Court of Will county; the Hon. Borrance Dibell, Judge, presiding. Heard in this court at the October term, 1905.</p>

Bill to construe deed as mortgage. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1905.

Action on the case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding. Heard in this court at the April term, 1906.

<p>1. Judgment—when rendition of, error. It is error to render final judgment without an issue and without a default.</p> <p>2. Judgment—for purposes of reversal is a unit. A judgment in an action at law against two defendants is an entirety and cannot he affirmed as to one defendant and reversed as to the other.</p> <p>3. Assessment of damages—when making of, error. It is error to assess damages without an issue or without a default.</p> <p>4. Bile of exceptions—when cost of incorporating and printing will he taxed against successful appellant. Where a hill of exceptions is unnecessary to the presentation of the questions involved, the cost of the incorporation of the bill of exceptions in the transcript, as well as the cost of printing the abstract thereof, will be taxed against the successful appellant.</p>

<p>Action in trespass. Appeal from the Circuit Court of Will county; the Hon. Dobrance Dibell, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. School trustees—power to transfer negotiable instrument. A negotiable instrument in the hands of school trustees is invested with all its usual attributes and such trustees have power to transfer by indorsement the same title as an individual- holder would have.</p> <p>2. Negotiable ihstbumentWiow title to, cannot be transferred by school trustees. Title to a negotiable instrument cannot be transferred from school trustees except by such trustees in their corporate capacity; an indorsement by their agents is a nullity.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. Theodobe N. Greene, Judge, presiding. Heard in this court at the April term, 1906.</p>

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

Action under sections 22 and 23 of the Railroad Act. Appeal from the Circuit Court of LaSalle county; the Hon. Richard S. Farr and, Judge, presiding. Heard in this court at the October term, 1905.

<p>1. Attorney and client—what does not justify retention of fund collected by former for latter. An attorney is not justified in refusing to turn over to his client money collected for him by reason of claims thereto being made by third parties, which such claims have not by such third parties been sought io be enforced by litigation.</p>

Contested claim in court of probate. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the October term, 1905.

<p>1. Real estate bbokeb—when not entitled to commissions. A real estate broker is entitled to no commission where he is not faithful to his trust, as in this case, where it appeared that he not only did not procure the purchaser seeking to buy the property, but did, in fact, prevent the consummation of the sale to such proposed purchaser.</p>

Action on the case for personal injuries. Appeal from the City Court of Aurora; the Hon. John L. Healy, Judge, presiding. Heard in this court at the October term, 1905.

<p>1. Judicial sale—what Mil seeking to set aside, should contain. A bill to relieve against a judicial sale should contain an offer to put the defendants in statu quo.</p> <p>2. Judicial sale—what does not justify setting aside. The courts will not relieve against a judicial sale because of a mistake of law, as, in this case, following the advice of counsel which was afterwards found to be predicated upon a mistaken view of the law; some fraud, undue influence or imposition must be shown.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Kane county; the Hon. Linus C. Ruth, 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 Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1905.

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Kane county; the Hon. Henby B. Willis, Judge, presiding. Heard in this court at the April term; 1806.

Contested claim in court of probate. Appeal from the Circuit Court of Carroll county; the Hon. RioHAUd S. Fabuand, Judge, presiding. Heard in this court at the April term, 1906.

Action in tort to recover damages to real property. Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the February term, 1906.

<p>Action in assumpsit. Appeal from the Circuit Court of Jefferson county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>Bill in chancery. Error to the Circuit Court of Union county; the Hon. Alonzo K. Vickf.rs, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>Action on the case. Appeal from the Circuit Court of Wabash county; the Hon. Jacob R. Cbeightost, Judge, presiding. Heard in this court at the February term, 1906.</p>

Action on the case for personal injuries. Error to the Circuit Court of Jackson county; the Hon. William N. Butlee, Judge, presiding. Heard in this court at the February term, 1906.

<p>Action on the case. Appeal from the Circuit Court of Williamson county; the Hon. Wabben W. Duncan, Judge, presiding. Heard in this court at the February term, 1906.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Wabash county; the Hon. Pbikce A. Peaece, Judge, presiding. Heard in this court at the February term, 1906.

<p>1. Embankment—right of action for improper construction, of, lies at common law. Independent of the statute, a right of action exists in favor of a landowner injured by reason of the improper and negligent construction of a railroad embankment.</p> <p>2. Embankment—what essential to liability of grantee for improper construction of, By grantor. In order to fasten liability upon a grantee for injury resulting from the improper and negligent construction of an embankment, it must appear that notice had been given to such grantee prior to suit and thereby an opportunity afforded to such grantee to correct the nuisance.</p>

<p>Action in assumpsit. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>1. Obdinaby cabe—how question of exercise of, hy passenger upon wagon, injured at railroad crossing, to he determined. This question is to be determined by the jury, and it is for the jury to say whether, under the circumstances, such passenger is to be held to the kind and measure of care and caution exacted of the driver of such wagon.</p> <p>2. Negligence—when not imputed. Negligence of the driver of a wagon is not to be imputed to a passenger upon such wagon injured at a railroad crossing.</p> <p>3. Measube oe damages—instructions upon, shoyld confine jury to evidence. Instructions with respect to the' damages, if any, to be allowed, should plainly confine and limit the jury to the evidence in the cause.</p> <p>4. Evidence—weight to he given to positive and negative. Positive evidence is to be accorded greater weight than that given to evidence of a negative kind.</p>

<p>Action in assumpsit. Appeal from the County Court of Randolph county; the Hon. S. L. Taylor, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>Action in assumpsit. Appeal from the County Court of Williamson county; the Hon. Rufus Neely, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>Action in assumpsit. Appeal from the County Court of Union county; the Hon. Monroe C. Craweord, Judge, presiding. Heard in this court at the February term, 1906.</p>

Proceedings to sell real estate to pay debts. Appeal from the County Court of Jackson county; the Hon. W. F. Ellis, Judge, presiding. Heard in this court at the February term, 1906.

Action on the case for death caused by alleged wrongful act. Appeal from the City Court of Alton; the Hon. James E. Dunnegan, Judge,' presiding. Heard in this court at the February term, 1906.

Action on the case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. James E. Dunnegan, 'Judge, presiding. Heard in this court at the February term, 1906.

<p>1. Unlawful employment—what does not bar minor's right to recover for personal injuries sustained while assigned to. The fact that the minor in question may have concealed his age, does not necessarily bar him of the right to recover for personal injuries suffered while assigned to an unlawful employment, but such fact is a circumstance which may be considered by the jury in weighing the testimony of such minor.</p> <p>2. Steam machinery—what not, within meaning of section 11 of Child Labor Act. A meat hasher held not “steam machinery” within section 11 of Child Labor Act.</p> <p>. 3. Instructions—must be predicated upon evidence. Instructions given to the jury must be predicated upon evidence in the cause.</p> <p>4. Instructions—when should define phrases. A phrase, such as “proximate cause,” though having a well understood meaning to the profession, should, when contained in an instruction to a jury, be defined so that it may be understood by them.</p> <p>5. Abqument of counsel—what improper. Argument of counsel containing the following language, held prejudicial: “The difference between the plaintiff and the defendant was that the plaintiff had a soul and was responsible before Heaven for the truth of what he said, while the defendant was a corporation without a soul to answer hereafter,” etc.</p> <p>6. Argument of counsel—what does not mire improper. A mild rebuke does not remove the effect of improper argument of counsel.</p>

<p>Action on the case. Appeal from the Circuit Court of St. Clair ^county; the Hon. R. D. W. Holdeb, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>Bill in chancery. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding. Heal'd in this court at the February term, 1906.</p>

<p>1. Certificate of acknowledgment—proof essential to overcome. To overcome the certificate of an officer authorized to take acknowledgements, the evidence must be clear, convincing and satisfactory, and such certificate is to be regarded as having great and controlling weight until it is so overcome. The testimony of the grantor alone is not sufficient to overcome the certificate. A mere preponderance of the evidence against the integrity of the certificate is not sufficient.</p> <p>2. Production of documents—when not error to refuse to order. Whether documents should be produced is a matter to be determined by the trial judge in the exercise of a sound discretion; unless it appear that in refusing so to order he has abused such discretion, reversal will not follow. In this case it was held not error for the court to refuse-te- require the production of a mortgage made the basis of a foreclosure proceeding.</p> <p>3. Surprise—when new hearing in chancery will not he awarded, because of. A new hearing will not be awarded by a court of chancery because of surprise where it does not appear that diligence to avoid surprise was exercised.</p> <p>4. Newly discovered evidence—What essential to right to new hearing in chancery. Unless it appear that diligence was exercised to obtain the alleged newly discovered evidence at the hearing, a new hearing -in chancery will not be awarded.</p> <p>5. Newly discovered evidence—when not sufficient to entitle new hearing in chancery. A new hearing in chancery will not be granted in order to permit the production of alleged newly discovered evidence purely of a cumulative or impeaching character.</p> <p>6. Homestead estate—when not released: The homestead estate is not released as to either the husband or the wife where one of them does not join in such release in the manner provided by statute.</p>

<p>Election contest. Appeal from the City Court of Alton; the Hon. J. B. Vaughn, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>1. Assignment of errors—function of. The assignment of errors upon the record in the Appellate Court performs the same office as a declaration in a court of original jurisdiction.</p>

Contested claim in court of probate. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1906.

Action in case for personal injuries. Appeal from the Circuit Court of Washington county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1906.

<p>Action in case. Error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1906.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Wabash county; the Hon. Jacob R. Cbeighton, Judge, presiding. Heard in this court at the February term, 1906.

<p>Action in case. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Randolph county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>1. Contempt—when attachment for failure to obey subpoena, proper. An attachment for contempt for failure to obey a subpoena is proper, without information, affidavit or interrogatories filed preliminary thereto, where the contempt in question was direct.</p> <p>•2. Judicial notice—of what taken. The court takes judicial notice of its own orders and actions in the matter out of which the alleged contempt arises, and of the facts constituting the contempt where the contempt was committed in its presence.</p> <p>3. „ Contempt—what is a direct. A direct contempt of court is the doing of any improper act in the presence of the court while in session, tending directly to disturb the proceedings or to defeat, disturb or impair the administration of justice, or the refusal to do any improper act required to be done in open court in the presence of the court, where such refusal directly tends to disturb the proceedings, or to defeat, disturb or impair the administration of justice.</p> <p>4. Oband juby—court may compel obedience of subpoena to appear before. It is within the power of a court presiding over the sessions of a grand jury to compel witnesses to appear before such body, and, upon their failing so to do, to punish them for contempt</p> <p>5. Sheriff—question of right to serve subpoena. A sheriff may serve a subpoena in any county of the state.</p> <p>6. Subpoenas—how service is shown. The return of the sheriff indorsed upon a subpoena may 'prima facie establish the fact of service.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. William N. Butleb; Judge, presiding. Heard in this court at the February term, 1906.

Action commenced before justice of the peace. Appeal from the Circuit Court of Massac county; the Hon. Wabben W. Duncan, Judge, presiding. Heard in this court at the February term, 1906.

Action in case for personal injuries. Appeal from the City Court of East SR Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1906.

Action in 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 February term, 1906.

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

<p>Action in assumpsit. Appeal from the City Court of Bast St. Louis; the Hon. W. J. N. Moyebs, Judge, presiding. Heard in this court at the February term, 1906.</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 February term, 1906.

<p>1. Negligence—how much of charge of, must he proven. It is not incumbent upon a plaintiff to prove more than one of the averments in his declaration; it is sufficient if he proves that the defendant did any one of the wrongful acts or was negligent in any one of the ways charged in the declaration, and that such negligence contributed to the injury complained of.</p> <p>2. Measube of damages—in action for injury to crop. Where the crop is not up, the damage should be estimated upon the basis of the rental value and the cost of seed and labor in preparing the ground and planting the crop; where the crop is up, but not so far matured that the product can be fairly determined, the injured party can recover in addition to the above, the cost of any labor bestowed after the planting; where the crop is more or less matured so that the product can be fairly determined, the value of the crop at the time of the loss is the measure of damages, and it is only where the crop is fully matured and ready to be harvested, that the damage can be determined by the market value of the crop, less the cost of harvesting and marketing, which must include all care and preparation for marketing, such as packing, crating, baling, threshing and the like, according to the nature of the crop.</p>

Action on the case for death caused by alleged wrongful act. 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 in case. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>1. Live stock—duty, of owner of, using land near railroad track. It is the duty of a person, who is using land near a railroad track for his stock and accustomed to pass over a farm crossing near at hand, where his stock may, if the gates are left open, pass upon the track, to keep the gates closed in passing back and forth over the track; and if, by reason of his failure to do so, his stock goes upon the track and is injured, he cannot recover damages therefor from the railroad company in the absence of wilfulness on the part of the employes of the company.</p>

Contested claim in court of probate. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1906.

<p>1. Vendos and vendee—duty of tatter with respect to rejection of merchandise. It is the duty of a vendee to examine merchandise delivered by a vendor and to accept or reject the same within a reasonable time after receipt.</p> <p>2. Custom—when proof of, competent. A local custom as to the time within which goods purchased are ordinarily examined and accepted or rejected, is competent in an action to recover the purchase price of such goods.</p>

<p>Action in assumpsit. Error to the Circuit Court of Jefferson county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the February term, 1906.</p>

Action commenced before justice of the peace. Error to the Circuit Court of Saline county; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1906,

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Btjbbotjqhs, Judge, presiding. Heard in this court at the February term, 1906.

<p>1". Question of law—when not presented for review. In a case tried before the court without a jury, no questions of law are presented for review where no propositions of law were submitted to the court and no exceptions to rulings on the evidence were reserved.</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 February term, 1906.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Crawford county; the Hon. Jacob R. CKEieiiTON, Judge, presiding. Heard in this court at the February term, 1906.

Action in case for personal injuries. Appeal from the Circuit Court of Randolph county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1906.

Contested claim in court of probate. Appeal from the Circuit Court of Randolph county; the Hon. Chables T. Moobe, Judge, presiding. Heard in this court at the February term, 1906.

<p>Mandamus proceeding. Appeal from the Circuit- Court of St. Clair county; the Hon. R. D. W. Holdeb, Judge, presiding. Heard in this court at the February term, 1906.</p>

Action commenced before justice of the peace. Appeal from the County Court of Jefferson county; the Hon. Coxbad Schul, Judge, presiding. Heard in this court at the February term, 1906.

Action on the case for personal injuries. Appeal from the Circuit Court of Wabash county; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1906,

<p>Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. Chables T. Moobe, Judge, presiding. Heard in this court at the February term, 1906.</p>

<p>Bill in chancery. 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 injunction. Appeal from the Circuit Court of Cook county; the Hon. John L. Healy, Judge, presiding. Heard in this court at the October term, 1905.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the October term, 1905.

<p>1. Withdrawal of juror—when motion for, properly denied. A motion for leave to withdraw a juror for the purpose of enabling rthe moving party to obtain additional evidence is properly denied, where such moving party does not appear to have exercised diligence in seeking, prior to the trial, to obtain such evidence.</p> <p>2. Verdict—when not excessive. A verdict for $6,000 is not excessive, where it appears that the plaintiff at the time of the accident was about forty-nine years of age, was a carpenter, worked ten hours per day and earned twenty-five cents per hour, was prior to the injury, healthy and capable of following his trade, and became after the accident largely incapable of following his usual 4 vocation in consequence of injuries to his back, nerves and internal organs.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1905.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Abthub H. Fbost, Judge, presiding. Heard in this court at the October term, 1905.

Bill for injunction, etc. Appeal from the Circuit Court of Cook county; the Hon. Edwakd F. Dunne, Judge, presiding. Heard in • this court at the March term, 1905.

<p>Action in case for personal injuries. Appeal from the City Court of Chicago Heights; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>Action of debt. 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>

<p>Action of assumpsit. 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>

<p>I. Solicitor’s fees—marriage relation not essential to allowance of. A divorced wife' is entitled to an allowance of solicitor’s fees incurred in seeking to compel the payment of alimony decreed to her by the order of divorcement.</p>

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

<p>Attachment proceeding. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Hoitobe, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>. Intervening petition. Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbentaito, Judge, presiding. Heard in this court at the October term, 1905.</p>

Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1905.

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. John L. Healy, 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. Mobton W. Thompson, Judge, presiding. Heard in this court at the October term, 1905.

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. John L. Healy, Judge, presiding. Heard in this court at the October term, 1905.

Action of trespass on the case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Abthue H. Chetlain, Judge, presiding. Heard in this court at the Octoher term, 1905.

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

Prosecution under municipal ordinance. 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>1. Bill of exceptions—when recitals of, control record proper. Where there is a conflict between the recitals of the bill of exceptions and the record proper, the recitals in the bill of exceptions must prevail over those in the record because the solemn act of signing and sealing the bill of exceptions by the judge, being final, is, in legal intendment, the more deliberate action of the court. An exception to this rule, however, is where the matter in question does not come within the function of the bill of exceptions, in which case the record proper controls over the bill of exceptions.</p> <p>2. Bill of exceptions—what not function of. It is not the function of a bill of exceptions to show the priority of the hearing of motions, the entry of the record orders therein, or in fact that an appeal was prayed or granted.</p> <p>3. Appeal bond—effect of recitals in. Recitals in an appeal bond do not cure defects with respect to matters of record.</p> <p>4. Review—what ruling not subject to. The ruling of the court on a motion to satisfy an execution pro tanto not being embraced in the order allowing the appeal, is not before the Appellate Court for review.</p> <p>5. Abandonment—what tends to establish, within terms of lease. An abandonment of the demised premises is tended to be shown by evidence that the premises, which were used for business purposes, were left vacant and unoccupied with respect to persons in possession, and likewise with respect to merchandise.</p>

<p>Action of debt. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Promissory note—in whose name suit may be brought. Where a note is indorsed in blank, suit may be brought in the name of any person who does not object.</p> <p>2. Variance—power to confess, when exercised, waives question of. The power under which a judgment has been entered by confession operates to waive all questions of variance between allegations and proof.</p> <p>3. Leave to plead—effect of granting, where judgment has been entered by confession. A waiver of technical objections to judgments entered by confession results from seeking and 'Obtaining leave to plead.</p> <p>4. Instructions—rule requiring presentation of, prior to argument, construed. This rule may be waived in the exercise of a sound judicial discretion.</p> <p>5. Judgment—mere excessiveness of, not ground for reversal The mere fact that a judgment is excessive is not ground for reversal; if the error may be corrected by computation and reduction of the judgment'to the proper amount, it will be ordered done by the Appellate Court and an affirmance entered for the correct amount.</p>

<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>1. Instruction—modification of, as to what jury may consider as la%o, improper. While not held prejudicial error, an instruction as follows: “You should consider that only as law which has been given you by the court in the instructions,” is improperly modified by being made to read: “You should consider that only as law which is not inconsistent with that given you by the court in the instructions.”</p> <p>2. Impeachment—when written document competent 6y way of. Contradictory statements" in writing may be employed to impeach a witness where the written document containing such statements has been identified by him upon his cross-examination.</p> <p>3. Declarations—when competent,- when not. Declarations with respect to physical ailments, pain, etc., are competent where they form part of the res gestae; where, however, declarations are made with reference to an action pending or contemplated or under circumstances which charge them with suspicion, they should not be received as evidence.</p> <p>4. Medical expert—to what extent expert testimony of, should he limited. A medical expert should be confined in his testimony to statements with respect to symptoms objective as distinguished from those of a subjective character.</p>

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

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. John L. Heaey, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904.

<p>1. Statute of Limitations—what fraudulent concealment within meaning of section 22. Fraudulent concealment of a cause of action from the knowledge of the person entitled thereto to prevent the running of the Statute of Limitations under the section referred to, must be something of an affirmative character; something said or done with the fraudulent purpose to conceal such cause of action from the person entitled thereto and which was calculated to conceal and has the effect to conceal such cause of action. Mere silence by the person liable to the action, is not a concealment within the meaning of the statute.</p>

<p>Action on the case. Appéal from the Superior Court of Cook county; the Hon. John L. Heavy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>Action of assumpsit. 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>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Thomas Q. Wihdes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

<p>Action of assumpsit. 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>

<p>1. Savings society—when trustees of, not liable for negligence. Trustees of a savings society are not liable for negligence where the by-laws agreed to by the complaining party exempted them from liability except in cases of wilful misconduct.</p>

<p>Foreclosure 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>

<p>Judgment by confession. Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, ■1905.

<p>Action of assumpsit. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farband, Judge, presiding. Heard in this court at the April term, 1908.</p>

<p>1. Motion fob new tbial—when need not he written. A motion for a new trial need not be in writing where no rule was asked or entered requiring that points in writing be filed.</p> <p>2. Motion fob new tbial—what does not waive. A motion for a new trial is not waived by a statement made in court that the motion is merely formal, where the overruling of the motion was followed by an exception and where the motion was preceded by another motion upon which the same argument was made which would necessarily have been made upon the argument of the motion for a new trial.</p> <p>3. Death—what essential to indulgence of presumption of, arising from absence. In order to establish a presumption that a person is dead from his absence for seven years, there must be diligent inquiry at his last place of residence and among his relatives and among others who probably would have heard from him if living. But in this connection hearsay or evidence of repute is competent.</p> <p>4. Pboofs of death—admission of, proper. It is proper, in an action upon an insurance policy to receive upon behalf of the plaintiff proofs of death submitted to the insurance company, as these proofs are an essential element of the plaintiff’s case unless waived by the defendant.</p>

Action commenced -before justice of the peace. Appeal from the City Court of Aurora; the Hon. John L. Healy, Judge, presiding. Heard in this court at the April term, 1906.

, Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1906.

<p>1. Verdict—jury should not he required to render more than one. It is improper to require a jury to render more than one verdict in a single cause, as, in this case, to direct a verdict and have the jury return a verdict as to one defendant before the conclusion of the case as to the other.</p> <p>2. Jurisdiction—when not lost notwithstanding judgment in favor of resident defendant. Where two defendants, one a resident of the county in which such action is brought and the other a non-resident of such county, are joined, judgment is properly rendered against the non-resident defendant, where such defendant appears and defends the action, regardless of the disposition of the case as to the other defendant.</p> <p>3. Bill oe lading—how to he construed,. A bill of lading having been prepared by the carrier, is to' be construed most strongly against it.</p> <p>4. Freight—carrier may demand prepayment of. A carrier is within its rights in demanding that freight charges be paid by the shipper in advance.</p> <p>5. Declaration—how far allegations of, must he proven in action of tort. In an action of tort, the plaintiff need only prove enough of the averments of its declarations to establish a cause of action.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Kankakee county; the Hon. F. L. Hooper, Judge, presiding. Heard in this court at the April term, 1906.</p>

Contested claim in court of probatp. Appeal from the Circuit Court of Bureau county; the Hon. Riohabd M. Skinneb, Judge, presiding. Heard in this court at the April term, 1906.

Action in case for personal injuries. Appeal from the Circuit Court of Boone county; the Hon. Robert W. Wright, Judge, pre- • siding. Heard in this court at the April term, 1906.

<p>Action of assumpsit. Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1906.</p>

<p>1. Performance—when party cannot complain of failure to make. A party cannot complain of the failure of the other party to the contract to make performance thereof where the party seeking to complain has prevented the other party from making per formance.</p> <p>2. Parol evidence—when competent to explain written instrument. Where a written instrument contains a reference to a subject-matter which can only be identified by extraneous evidence, parol evidence is competent to make such identification certain.</p> <p>3. Interest—right to, where contract contains no stipulation. Where a contract provides for the payment of money in the future but does not provide for the payment of interest, no interest can be charged until' demand, but 'after demand the right of interest accrues at the legal rate.</p> <p>4. Statute oe limitations—when five-year provision has no application. Where a contract providing for- the payment of money is signed by the party obligated to pay the same, but not by the other. party, the five-year limitation has no application, but the ten-year provision governs such contract, where it appears that the party to whom such money is due has fully performed so far as it was within his power to perform.</p>

Action on the case for injury caused by alleged wrongful act. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Earrahd, Judge, presiding. Heard in this court at the April term, 1906.

Action in case for personal injuries.' Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1906.

Action in ease for personal injuries. Appeal from the City Court of Aurora; the Hon. John L. Healy, Judge, presiding. Heard in this court at the April term, 1906.

<p>Bill in chancery. Appeal from the Circuit Court of Peoria county; the Hon.' Nicholas E. Worthington, Judge, presiding. Heard in this court at the April term, 1908.</p>

<p>Foreclosure proceeding. Appeal from the Circuit Court of DuPage county; the Hon. Chables A. Bishop, Judge, presiding. Heard in this court at the April term, 1905.</p>