Volume 130 — Illinois Appellate Court Reports

<p>Action of assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Coxostin D. Myebs, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action for damages to real property. Appeal from the Circuit Court of Coles county; the Hon. L. C. Henley, Judge, presiding. Heard in this court at the May term, 1906.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbbough, Judge, presiding. Heard in this court at the May term, 1906.

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Coles county; the Hon. Lapsley C. Henley, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Trial of right of property. Appeal from the County Court of Moultrie county; the Hon. E. D. Hutchinson, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action for damages. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>1. Abstract propositions of law—when giving of correct, ground for reversal. The giving of an instruction containing a correct proposition of law is ground for reversal where such proposition of law has no applicability to the issues involved in the cause.</p>

<p>Bill in equity. Appeal from the Circuit Court of Douglas county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1906.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1906.

<p>li Divorce—who cannot attack decree of, entered nunc pro tunc. Where both parties to a divorce proceeding remarry under the apparent supposition that they were divorced, the subsequent entry of a decree nunc pro tunc cannot be attacked by one of such parties.</p>

<p>1. Negligence—what essential to recovery because of. Where the negligence complained of is in the doing or the not doing of a thing not in itself wrong, in order to recover it must he shown that the consequences complained of resulted from the doing or the not doing of such act according to the ordinary course of events.</p>

<p>1. Props—when demand for, need not he made upon mine manager. A demand for props need not tie made of a mine manager where it appears that the demand was made in conformity with a custom adopted and in general use in such mine which custom was known to the mine manager.</p> <p>2., Props—what evidence not competent when negligence charged was failure to furnish. Evidence that the plaintiff borrowed props from another miner just before the time of the injury or at any other time, is not competent where the negligence charged is failure to furnish props on demand.</p> <p>3. Props—what does not justify recovery for failure to furnish. A recovery cannot be made for a failure to furnish props upon demand if such failure merely contributed to but did not occasion the injury complained of.</p> <p>4. Place óe accident—competency of evidence pertaining to. It is error to exclude evidence tending to show the condition of the place of the accident immediately before and after the injury complained of.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Greene county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the -May term, 1906.

<p>Contested account of administrator. Appeal from the Circuit Court of DeWitt county; the Hon. Solon Philbeick, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Bill in,chancery. Appeal from the Circuit Court of Morgan county; the-Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1906.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1906.

<p>Bill for accounting. Appeal from the Circuit Court of Douglas county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Creditor’s hill. Appeal from the Circuit Court of Vermilion1 county; the Hon. James W. Crais, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1906.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of McLean county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the May term, 1906.

<p>Action of assumpsit. Appeal from the County Court of Moultrie county; the Hon. E. D. Hutchtxson, Judge, presiding. Heard in this court at the May term, 1906.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier. Judge, presiding. Heard in this court at the May term, 1906.

Contested claim in court of probate. Appeal from the Circuit Court of Greene county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1905.

<p>Action of assumpsit. Appeal from the Circuit Court t»f Logan county; the Hon. Thomas M. Habbis, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Macon county; the Hon. W. C. Johns, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action of assumpsit. Error to the Circuit Court of Shelby county; the Hon. William M. Parmer, Judge, presiding. Heard in this court at the May term, 1906.</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 May term, 1906.

<p>Bill in equity. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the May term, 1906.</p>

Contested claim in court of probate. Appeal from the Circuit Court of Shelby county; the Hon. William M. Farmer, • Judge, presiding. Heard in this court at the May term, 1906.

<p>Action in assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May* term, 1906.</p>

<p>Action in assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>1. Municipal corporation—when lease hy, ultra vires. A municipal corporation has no power to lease property held by it in trust for all the citizens for a grossly inadequate sum and thereby increase the burden of taxation falling upon the citizens generally, and a court of equity will, where fraud in making such a lease is shown, grant relief at the instance of a taxpayer.</p> <p>2. Taxpayer—when remedy conferred upon, for recovery of money due municipality, is not exclusive. The statute which confers upon a taxpayer the right to sue at law and recover for and in the name of a municipality any money due it, does not preclude such taxpayer from making application to a court of equity where he seeks, with respect to such municipality, other and further relief than the mere recovery of money or property due it.</p>

<p>Action for damages. Appeal from the Circuit Court of Coles county; the Hon. 'James W. Craig, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the May term, 1906.</p>

Action on the case for death caused by alleged wrongful act. Error to the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the May term, 1906.

<p>1. Pboximate cause—how question as to whether intoxication was, of injury complained of, determined. Whether or not the intoxication of the plaintiff’s intestate was the proximate cause of his death, is a question of fact to be determined by the jury.</p> <p>2. Instructions—effect of omission of word “case.” Held, that the omission of the word “case,” in referring to the facts and circumstances proven upon the trial, was not prejudicially erroneous.</p> <p>3. Loss of support—what essential to confer right of action for, arising from intoxication. The statute conferring a cause of action where loss of support has been entaijed by an intoxication caused by the' defendants, does not recognize degrees of intoxication, and if it appears that the loss of support in question was proximately caused by the intoxication shown to have been the result of liquor sold by the defendants, a right of action is established.</p> <p>4. Verdict—when excessive in action for loss of support. A verdict of $3,000 is excessive where it appears that the deceased was, prior to the intoxication in question, a man given to the excessive use of intoxicating liquors, spent a considerable .portion of his earnings in dissipation, contributed but little to the support of the plaintiff, and that his entire annual earnings did not exceed three hundred dollars.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Christian county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1906.

Action in trespass for assault and battery. Error to the Circuit Court of DeWitt county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1905.

<p>Action in debt. Appeal from the Circuit Court of Shelby county; the- Hon. William M. Farmer, Judge, presiding. Heard in this court at the May term, 1905.</p>

Criminal proceeding to recover penalty. Appeal fom the Circuit Court of Fulton county; the Hon. G-eorse W. Thompson, Judge, presiding. Heard in this court at the November term, 1905.

<p>1. Contract—when acceptance of proposition does' not complete. Where the parties make the reduction of their agreement to writing, and its signature by them, a condition precedent to its completion, the making and acceptance of a proposition does not constitute a binding contract, and this notwithstanding all of the terms of the agreement have been arrived at.</p>

<p>1. Corporation—when estopped to deny liability upon note. A corporation is estopped to deny liability upon a note which for years has been carried on its books as one of its liabilities and upon which, during all of such time, it has paid interest, with the knowledge of its stockholders and directors.</p> <p>2. Corporation—burden upon officer to show disposition of funds. The burden of proof is upon'an officer of a corporation, to whom corporate funds have been entrusted, to show the due and proper disposition of such funds.</p> <p>3. By-law—concerning salary of employe construed. Where the salary of an employe of a corporation is made dependent upon its annual earnings being of a specified ambunt, the right to such salary is dependent each year upon the earnings of such corporation equaling such amount, and the earnings of such corporation for a period of years cannot be averaged and if the average equals the specified amount, the salary be paid.</p> <p>4. Amendment—power of chancellor to permit. It is within the sound judicial discretion of the chancellor to permit a defendant to amend his answer and the action of the chancellor in such regard will not, in the absence of abuse, be the subject of review.</p>

<p>' Action for personal injuries. Error to the Circuit Court of Fulton county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action in trespass. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1906.</p>

Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the May term, 1906.

Action in case for personal injuries. Appeal from the Circuit Court of Ford County; the Hon. Thomas M. Harris, Judge, pre- siding. Heard in this court at the May term, 1906.

<p>Action of assumpsit. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1906.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Ford county; the Hon. Ti-iomas M. Harbis, Judge, presiding. Heard in this court at the May term, 1906.

<p>1. Judges of election—character of office of. Judges of election when acting as a board of election canvassers are ministerial and not judicial officers. They can only compute the votes cast for the several candidates and declare the result, as shown by the face of the returns. They have no power, in case of a tie vote, to determine by lot,who is the successful candidate.</p> <p>2. Election—-effect of electing ineligible candidate. The general rule is that an election at which an ineligible candidate receives a majority or plurality of the votes cast, while it confers no right to the office upon such an ineligible candidate, an eligible candidate who has received a less number of votes cannot be declared elected, but it must be held that there was a failure to elect.</p> <p>3. Election—effect of tie. In the case of a tie, neither candidate is elected and the judges of election, in the absence of statutory authority, are not authorized to determine by lot which candidate shall be declared elected.</p> <p>4. Election—effect of certificate of. A certificate of election ordinarily gives to the holder a grima facie right to office, hue where the certificate contains statements which show that the holder was not so in fact elected, the certificate ceases to be grima facie evidence of such right to office.</p>

Action for damages to crops. Appeal from the County Court of McLean county; the Hon. R. A. Russell, Judge, presiding. Heard in this court at the May term, 1906.

<p>Action in case. Appeal from the Circuit Court of Cass county; the Hon. Habby Higbee, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding. Heard, in this court at the May term, 1906.</p>

<p>1. Ebrobs—when will not reverse. Erroneous rulings upon questions of evidence will not reverse where it is apparent that no prejudice has resulted.</p>

<p>Bill in aid of execution. Error to the Circuit Court of Piatt county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Intervening petition. Appeal from the Circuit Court oí Piatt county; the Hon. Solon Philbbick. Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action in debt. Error to the Circuit Court of Sangamon county; the Hon. Jambs A. Cbeiohtoh, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action in case. Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>Action in assumpsit. Appeal from the Circuit Court of Clark county; the Hon. Mobton W. Thompson, Judge, presiding. Heard in this court at the May term, 1906.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Habbis, Judge, presiding. Heard in this court at the May term, 1905.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1906.

Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the May term, 1906.

Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1906.

<p>Bill in chancery. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight. Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>1. Mandamus—when does not lie to compel corporations to issue new stock certificate. Not until the transfer of the old certificate has been made pursuant to a valid and reasonable by-law of a corporation is such corporation obligated to issue a new certificate.</p>

<p>1. Corporation—power of directors to sell property of. In the absence of express restrictions, the directors of a corporation, as managers thereof, have the power to sell and convey all of its property, without the consent of its stockholders, when it becomes necessary to do so to pay its debts.</p> <p>2. Corporation—right of, to prefer creditors. Corporations, like individuals, in the absence of statutory prohibition, may lawfully prefer one creditor to another.</p> <p>3. ' Corporation—what essential to consolidation of. Corporations cannot be consolidated without the sanction of the state and no consolidation will be deemed to have been effected by a transaction between two corporations where none of the steps required by statute has been taken.</p>

<p>Contested account of administrator. Appeal from the Circuit Court of Greene county; the Hon. Robebt B. Shibizey, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>1. Assignment—effect of verified plea of non est factum denying. A verified plea of non est factum denying the execution of an assignment by a corporation destroys every presumption of authority in the officer purporting to make the same and requires proof of the assignment and of the authority to make the same; and, at common law, delivery in addition to execution must likewise be established where such a plea has been interposed.</p> <p>2. Consideration—when proof of, necessary. Notwithstanding an allegation of consideration made in an assumpsit suit may not have been necessary, the same having been made must be proven.</p>

<p>1. Judgment bt confession—when should he opened up to admit defense. A judgment entered by confession should be opened up to admit a defense where the affidavit of merits, if true, shows a complete legal defense.</p> <p>2. Consideration—when will mot support note. A gambling consideration will not support a note.</p>

<p>1. Judgment by concession—when should he set aside. A "judgment by confession should be set aside where the affidavit of merits discloses a defense that the attorney’s fees provided for in the note and the action in taking judgment thereon constituted a mere shift to avoid the usury laws.</p>

<p>Action in case. Appeal from the Circuit Court of Christian county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>1. Contempt—what sufficient to entitle respondent to discharge. Where the contempt is criminal or quasi-criminal and is alleged to have been committed out of the presence of the court, an answer by the respondent denying under oath the facts and circumstances alleged to have constituted the contempt, is, of itself, sufficient to acquit such respondent of the contempt charged, and oral evidence cannot thereafter be heard in contradiction of such answer.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the May term, 1906.

<p>Action of assumpsit. Appeal from the County Court of Macoupin county; the Hon. C. S. White, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>1. Errors—when will not reverse. Errors though clearly prejudicial will not reverse if no other verdict than that rendered would have been warranted by the evidence.</p>

<p>1. Lease—what breach of covenant against- assignment. A covenant against assignment of a lease to two persons is broken by an assignment of the undivided moiety of one lessee to the other.</p> <p>2. Lease—covenant not to sublet construed. A covenant not to underlet does not apply to a mere change in the' business of the lessees’ firm incident to the admission of a new partner or the withdrawal of an old one.</p> <p>3. Forfeiture—when receipt of rent does not waive right to declare. Where rent is received by the lessor without knowledge that a cause of forfeiture existed, the right subsequently to declare a forfeiture is not affected.</p> <p>4. Forfeiture—assignment contrary to lease gives right to. Where a lease is assigned contrary to the inhibition contained therein, a right to declare a forfeiture arises in favor of the lessor.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. R. B. Shirley, Judge, presiding. Heard in this court at the May term, 1906.

<p>• Action in debt. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>1. Demubeee—when action of court in overruling, waived. The action of the court in overruling demurrers to pleas is waived by joining issue thereon.</p> <p>2. Additional pleas—power of court to permit filing of. It is within the sound discretion of the court to permit or to refuse to permit the filing of additional pleas.</p> <p>3. Continuance—power of court to rule with respect to. It is within the sound judicial discretion of the court to grant or to refuse to grant a continuance applied for.</p> <p>4. Judgment—how far conclusive, notwithstanding defective in form. In á collateral proceeding, when the transcript shows that a judgment is an adjudication of .the court or judge having jurisdiction over the parties and the subject-matter, the same, however defective in form, is conclusive upon the parties.</p> <p>* 5. Unlawful seizure—what establishes, as against sheriff. An .unlawful seizure is conclusively established where it appears that after the taking by the sheriff a trial of the right of property was had pursuant to the method prescribed by statute and a judgment rendered against the sheriff. ' '</p> <p>6. Measure of damages—ire action for illegal seizure by sheriff. In such an action the measure of damages where the property has not been returned is the fair cash market value thereof when taken, but where subsequent to the taking the property has been returned, the measure of damages is the difference between the fair cash market value of the property when taken and such value when returned plus such damages as may have accrued by reason of the loss of the use of the same, if any.</p> <p>7. Abstract—when cost of additional, taxed against appellant. Where the abstract filed by a successful appellant was incomplete and not in compliance with the rules, the cost of an additional abstract filed by the appellee will be taxed agáinst such appellant.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Christian county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1906.

<p>1. Receiver—when party obtaining, not liable for losses incurren by, while operating plant. Where the appointment is legal and appears to .have been warranted in equity and there' comes to the hands of the receiver sufficient funds or property to pay the ordinary costs or expenses, including 'the compensation of the receiver, the liability of the complainant, who has acted in good faith, is at an end and he cannot be held liable for any deficiency created in the operation of the property as a business, where he has been guilty of no fraud or collusion, and it does not appear that he has been responsible for the incompetency, dishonesty or reckless management of such receiver.</p>

<p>Judgment by confession. Appeal from the County Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>The decision in this case is controlled by Vennum v. Carr, ante, p. 309.</p>

<p>1. Common cabbies—what constitutes contract for through transportation of merchandise. The -acceptance by a common carrier of a car billed to a point beyond the terminus of its own line is held, prima facie, to constitute a contract for through transportation.</p> <p>2. Consignob and cabbies—burden to establish knowledge of restrictive conditions. The burden is upon the carrier to show that the shipper had knowledge of and assented to the restrictive provisions .of the contract of shipment signed by the shipper. •</p> <p>3. Consignob and cakbieb—what evidence competent as tending to show knowledge of restrictive conditions. The fact that the consignor had on previous occasions signed similar contracts of shipment, is competent as tending to show knowledge of the restrictive conditions contained in the particular contract in question in the cause.</p> <p>4. Measure of damages—in action for negligence and delay in transportation. In such a case the true measure of damages is the difference in value between what the merchandise was worth upon its arrival at the point of destination in the condition in which it then was and when such merchandise was received by the carrier.</p>

Action in case for death caused by alleged wrongful act Appeal from the Circuit Court of Shelby county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1905.

<p>1. Witness—when incompetent by virtue of interest. A party in interest is incompetent where the adverse party sues or defends in a representative capacity.</p> <p>2. Incompetent evidence—when admission of, by chancellor will not reverse. A chancellor will be presumed -to have considered only competent evidence and the admission of incompetent evidence will not work a reversal if there is sufficient competent evidence in the record to sustain the decree.</p> <p>3. Mortgage—-when foreclosure not barred by Statute of Limitations. Notwithstanding a joint note is, as to one of the joint debtors, barred by the Statute of Limitations, a mortgage given to secure the same may be foreclosed as against both of the joint debtors. . Payments made by one joint debtor upon a note so secured, while not binding the joint debtor so that he may be proceeded against personally, have the effect of keeping alive the security with respect to such note.</p>

<p>1. Witness—when widow incompetent as. A widow is incompetent to testify as a witness to any conversations' had with her deceased husband.</p> <p>2. Settlement—what sufficient consideration moving from wife to support. A settlement of property by a husband upon his wife in consideration of the release by the wife of her inchoate rights of dower and homestead in other property owned by the husband, if the value of such rights bears a reasonable proportion to the value of the property settled upon the wife, is valid and will prevail against existing creditors and subsequent purchasers.</p>

<p>1. Religious society—when trustees of, competent to receive bequest. The trustees of a religious society are competent to receive a bequest notwithstanding such society has never been legally incorporated:</p> <p>2. Last will and testament—what bequest of money as distinguished from devise of land. Where by the terms of a will the testatrix directed the sale of real estate and the delivery of the proceeds to the beneficiary named, a bequest of money, as distinguished from a devise of land, will be held to have been intended.</p> <p>3. Trust—when not held to have lapsed. Where a bequest is made for the purpose of the maintenance of religious service at a place designated in the will, such bequest will not be held to have lapsed merely by reason of the fact that the church designated had become decayed and that for the time being no such services were being held.</p>

<p>Action of account. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>1. Former adjudication—-when judgment in action against wife does not bar action by husband. A judgment in an action for personal injuries instituted by a wife does not bar an action by her husband for damages independently suffered by him by reason of the injury to her and the consequent loss of her services. 1</p> <p>2. Husband and wife—what does not preclude recovery of damages suffered by former through injury of latter. The fact that the wife may have an independent calling does not preclude the husband from a recovery of damages sustained by him as the result of an injury to her and the consequent loss of her services.</p>

<p>Action in assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1906.</p>

<p>1. Contract—when ultra vires county. A contract by which a county agrees to pay an attorney for services in searching out property which had not been made the subject of taxation is ultra vires and void.</p> <p>2. Contract—when is wholly void, though in part justified in law. A contract which provides a single, unapportioned and unapportionable consideration for the performance of several undertakings, oije of which is valid and the other "of which is invalid, is wholly void.</p>

<p>1. Contract—what essential to recover for "breach of. A party seeking to recover damages for the non-periormance of a contract by the other party thereto must allege and prove that he himself has performed all the conditions of the contract by him to he performed or that such performance has been waived and that such other party is in default.</p> <p>2. Contract—jury should not be left to construe. It is improper to leave to the jury the determination of the question as to what the parties to the contract meant by certain language used.</p> <p>3. Measure of oamases—in action for breach of contract, consisting of a failure to locate a station at a particular point. In such an action profits which might arise from the subdivision of the plaintiff's land is not a part of the measure of damages.</p>

<p>1. Mechanic’s lien—section 7 of act of 1895 construed. The words, “according to the terms of the original contract,” as used in section 7 of the Mechanic’s Lien Act of 1895, were manifestly employed by the legislature for the purpose of fixing a definitely known time within four months after which a contractor must file his claim for lien or bring suit to enforce the same as against creditors, encumbrancers and purchasers. The time when the last payment shall become due and payable is required by the statute to be stated in the contract and the time so stated must control, regardless of any extension which may be granted. This four-months’ provision, however, has no application as to a mechanic’s lien proceeding brought against the party making the contract.</p> <p>2. Mechanic’s lien—what does not justify withholding of payment 5y owner. An owner is not justified in withholding payment to a contractor because of non-payment by the contractor of sums due subcontractors where such subcontractors have not taken the statutory steps to perfect their claims as liens against thfe owner.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

<p>1. Promissory note—when burden to show good faith in acquisition of, upon. holder. The general rule is that the holder of a note is presumed to be prima facie a holder for value, but where the maker shows that it was obtained from him or her by fraud, the burden of proof is shifted to the holder and the latter must show that he acquired it in good' faith for value, in the usual course of business, in such a way as not to create a presumption of knowledge of its invalidity.</p>

<p>Mandamus proceeding. Appeal from 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>Action in 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>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

<p>1. Dbam-shop license—power of mayor to, grant or refuse. The mayor of a city is vested with a discretionary, power to exercise a reasonable discretion in the granting or refusing of a dram-shop license.</p> <p>2. Dbam-shop license—when action of mayor in refusing to issue, not abuse of discretion. Held, that the refusal of a dram-shop license for the conduct of a dram-shop in close proximity to a religious institution did not constitute an abuse of discretionary power.</p>

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

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, 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. George A. Dupuy, 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. Charles A. Bishop, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

<p>Action in cáse 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>1. Abministbatok be bonis non—right of, to maintain action upon bond of predecessor. An administrator de honis non appointed after the revocation of the letters of the administrator originally-appointed, may sue, as upon a devastavit, on the bond of his predecessor, for assets of the estate converted by the predecessor to his own use.</p>

<p>1. Trust—what does not work uncertainty of subject-matter of. The fact that the person creating the trust might during lifetime consume or dissipate the entire fund made the subject-matter of the trust, does not render the same void for uncertainty.</p> <p>2. Trust—when uncertainty as to object will not defeat. A trust will not be defeated as uncertain merely because a contingency unprovided for may arise which would render the subject of the bounty uncertain.</p> <p>3. , Perpetuities—when trust does not violate rule against. A trust does not violate the rule against perpetuities where the same must come to an end not later than the twenty-first birthday of a person in being.</p>

<p>Action of debt. Error to the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding. Heard in this court at the March term, 1906.</p>

<p>1. Damnum absque injuria—when injury to real property is. Where there is no physical taking and no charge of negligent construction or maintenance, damages cannot be recovered for injury to real property arising by reason of noise from the construction and maintenance by a traction company, upon its own land, of a station and loop.</p>

<p>1. Motion #o betax—effect of overruling. Held, that the court in denying a motion to retax, approved the master’s fee subsequently sought to be questioned by a replevy of the fee bill.</p> <p>2. Motion to betax—when precludes remedy by replevy of fee bill. The motion to retax and the replevy of the fee bill are concurrent remedies and the selection and the pursuit of one precludes the adoption of the other.</p>

<p>1. Abstract—what not'sufficient. An abstract which is a mere index is not in compliance with the rules and is insufficient to entitle a review.</p> <p>2. Abstract—what must show. An' abstract should show all those 'matters which it is essential for the court to consider in passing upon the errors assigned.</p>

Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Lookwood Honobe, Judge, presiding. Heard in this court at the March term, 1906.

<p>Bill for injunction. Error to the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Heard in this court at the October term, 1905.</p>

<p>1. Boabd of trade—when has jurisdiction to discipline. A holder of a certificate of membership in the board of trade does not cease to be a member after assignment of his certificate until all the rules of the board respecting a change of ownership in such certificate have been complied with, and until such time the board retains jurisdiction to discipline.</p> <p>2. Board of trade—when estoppel to question reasonableness of rules exists. A member of the board of trade who has been ad- • mitted to such membership in subordination to existing rules, is estopped to deny their reasonableness.</p> <p>3. Board of trade—what does not preclude, from disciplining member violating rule prohibiting conducting of buclcet shops. The fact that the member sought to be disciplined handled only corporate stocks not dealt with on the board in nowise affects the power of such board.</p> <p>4. Board of trade—when injunction does not lie against. The courts will not interfere to prevent the board of trade proceeding to try a member under a charge of violating any of its by-laws or rules laid down for the government of its members.</p>

<p>1. Declaration—what essentials of, after verdict in action on the case for deceit. A declaration in an action on the case for deceit must show the false representations, or knowledge by the defendant that they were false, their falsity in fact, the materiality of the representations, the reliance upon them by the plaintiff, and the consequent damage.</p>

Action commenced before' justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the March term, 1906.

Action on the case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, 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 Hón. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

Action on the case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Thomas O. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windbs, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1905.

<p>1. Partition—when decree in, final; when not. A decree in,a partition proceeding which declares the titles and interests of the respective parties in the property described therein and for an accounting between the parties and proving that a reasonable solicitor’s fee be apportioned among them, is final as to the titles of such parties and as to the right of the complainant to a partition, but is not final as to the accounting or the solicitor’s fee.</p> <p>2. Partition—when allowance of solicitor's fees improper. It is improper to allow solicitor’s fees’ to the complainant’s solicitor where the interests of the parties to the proceeding were only correctly set up after several amendments and after the defendants had employed solicitors and where it appears that the parties could not agree upon a partition and an accounting and that the employment of counsel by the defendants was necessary to the proper protection of their rights.</p>

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