Volume 133 — Illinois Appellate Court Reports

<p>Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Movers, Judge, presiding.</p>

<p>1. Proximate cause—test of determining what is. The question as to what is the proximate cause of an accident is one of fact, and the test is as to whether or not there was an unbroken connection between the wrongful act and the injury.</p> <p>2. Proximate cause—when injury resulting deemed to have been capable of anticipation. It is not essential to a recovery that the injury resulting from the wrongful act complained of could have been anticipated to occur in the particular manner in which it did occur.</p> <p>3. Contributory negligence—when attempt to save property from destruction does not constitute. An attempt to save one’s home from destruction by fire occasioned by the negligence of the defendant, does not constitute contributory negligence which will preclude recovery for death.</p> <p>4. Fire—when action lies for death resulting from,. An action lies for death resulting from fire spreading from a railroad right of way where such fire, and the spreading thereof, was occasioned hy the negligence of the defendant.</p>

<p>1. Fellow-servants—burden of proof to establish relation of. The burden of proof to establish the relation of fellow-servants is upon the defendant.</p> <p>2. Fellow-servants—who are not. A foreman and the members of a crew working under him are not fellow-servants, as a matter of law.</p> <p>3. Fellow-servant—when foreman not. A foreman is the representative of his master, and not a fellow-servant, where instead of ordering the performance of a negligent act he performs it -himself.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. James E. Dunnegan, Judge, presiding.</p>

<p>Assumed risk—when doctrine of, applies. Where a servant knowing the danger which confronts him in the doing of a particular act, voluntarily exposes himself to such danger and does such act, he cannot recover.</p>

<p>1. Peremptory instruction—when giving of, erroneous. The giving of a peremptory instruction is erroneous where the evidence with all the reasonable inferences deducible therefrom tend to prove each and all of the material allegations of the declaration.</p> <p>2. Instruction—must not single out facts. An instruction is improper which singles out particular facts from the other facts in evidence and specially directs the attention of the jury to them.</p> <p>3. Instructions—should not submit question of law to jury.. Instructions should not leave to the jury the question of determining as to what are the material allegations of the declaration.</p>

<p>Fraud in procurement—what essential to, as defense to promissory note. Fraud in the procurement of the execution of a promissory note is not a good defense as against an innocent holder for value in the absence of a showing of reasonable care and diligence upon the part of the maker to avoid the perpetration of a fraud.</p>

<p>Bill or complaint—when deemed abandoned. Where an original bill is not amended but an entirely new bill filed, the original bill is deemed to have been abandoned.</p>

<p>Verdict—when not disturbed. A verdict based upon conflicting evidence will not be disturbed as against the weight of the evidence unless clearly and manifestly so.</p>

<p>Attachment. Appeal from the Circuit Court of St. Clair County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>Forcible entry and detainer. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>1. Trespasser—duty of railroad company to. A railroad company owes no duty to a trespasser upon its right of way or tracks, except that it may not wantonly or wilfully injure him.</p> <p>2. Trespasser—what not wanton injury to. The running of a train in violation of city ordinances cannot alone be regarded as sufficient reason for holding that the injury was wanton or wilful.</p>

<p>Affirmance—when ordered, as matter of course. Where a case has been once affirmed by the Appellate Court and subsequently reversed by the Supreme Court for error of law only, the same judgment afterward rendered in a subsequent trial will be affirmed as a matter of course where the record presented is substantially the same as that previously filed, with the errors then existing purged from such record.</p>

<p>Assumpsit. Appeal from the Circuit Court of Clinton County; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Injunctional proceeding. Appeal from the Circuit Court of Crawford County; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>1. Pleas m abatement—when judgment quod recuperet should he rendered -upon. Where pleas in abatement raise issues of fact which could only be determined by evidence dehors the record, a judgment quod recuperet should be rendered where such pleas are not sustained.</p> <p>2. General appearance—what amounts to. Any action on the part of a defendant, except to object to- the jurisdiction, will amount to a general appearance.</p> <p>3. Attachment—of what defendant in, cannot complain. A defendant in attachment cannot complain of the irregular action of the court in only entering judgment against the garnishee for the amount due from the defendant to the plaintiff, where such garnishee was not made a party to the appeal.</p>

<p>Proximate cause—how question of, determined. What is the proximate cause of an injury is ordinarily a question of fact to be determined by the jury from the evidence.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Fayette County; the Hon. Truman E. Ames, Judge, presiding.</p>

<p>Instructions—when do not ignore element of exercise of ordinary care. Held, that the instructions complained of in this case did not ignore the element of ordinary care essential to the plaintiff’s recovery.</p>

<p>Declaration—how to he construed. A declaration attacked by-demurrer must be construed most strongly against the pleader.</p>

Action to recover damages for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison County; the Hon. James E. Dunnegan, Judge, presiding.

<p>Trover. Error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Assumpsit. Error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Action to recover damages for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Dbam-Shop Act—liability of landlord for exemplary damages. One who demises premises for saloon purposes may, in an action instituted under section 9 of this act, he held for exemplary damages.</p>

<p>1. Notice—when objection to form, and manner of service of, cannot be availed of. One who has appeared without limiting his appearance and who has made motions in a cause, cannot avail of the alleged insufficiency of a notice or the manner of the service thereof.</p> <p>2. Town meeting—when electors present at, cannot authorize satisfaction of judgment. Electors present at a town meeting cannot authorize the satisfaction of a judgment for taxes upon the payment of a sum less than the entire amount of the judgment.</p>

<p>Assumpsit. Appeal from the Circuit Court of St. Clair County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>Action in case for - personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

Action for damages for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison County; ' the Hon. Benjamin R. Burroughs, Judge, presiding.

<p>Action of debt upon bond. Error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Mandamus. Appeal from the Circuit Court of Hamilton County; the Hon. Prince A. Pearce, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the City Court of Bast St. Louis; the Hon. W. J. N. Movers, Judge, presiding.</p>

<p>1. Motive—what evidence competent upon, in criminal prosecution. ■ Letters which tend to show the relations between the accused and the party assaulted, are competent upon the question of motive.</p> <p>2. Instruction—should not he argumentative. An instruction is improper which is argumentative in form.</p>

<p>Trespass. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Replevin and assumpsit, consolidated. Appeal from the Circuit Court of Clinton County; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>1. Attachment wbit—when malice presumed in wrongfully suing out. Malice in suing out a writ of attachment may he presumed from the absence of reasonable.or probable cause.</p> <p>2. Damages—what evidence of, justifies verdict in action for maliciously suing out writ of attachment. Evidence of expenses incurred in defending against the attachment and the loss of the use of the property attached, is sufficient to justify a verdict in an action for maliciously suing out a writ of attachment.</p>

<p>1. Notice to terminate—what not. Held, that a letter referred to in the opinion, did not possess the requisites necessary to constitute a formal notice to terminate the contract in question in the case.</p> <p>. 2. Contract—with regard to use of railroad tracks construed. The contract in question in this case, pertaining to the joint use of railroad tracks is construed and the rights of the parties with respect thereto defined.</p>

<p>Trespass. Appeal from the City Court of Bast St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>1. Peremptory instruction—when refusal of, proper. It is proper to refuse a peremptory instruction where there are disputed questions of fact to be determined in the cause.</p> <p>2. Verdict—when not disturbed as against the evidence. A verdict based upon conflicting evidence will not be disturbed as against the weight of the evidence unless clearly and manifestly so.</p>

<p>1. Verdict—when formal objections to, come too late. Formal objections to a verdict cannot be first made on appeal.</p> <p>2. Verdict—when form of, upon assessment of damages after default, not fatally defective. A verdict in form as follows: “We, the jury, find that the plaintiff has sustained damages and we fix the amount of the plaintiff’s damages at,” etc., is not fatally defective where ■ rendered upon an assessment of damages after default.</p> <p>3. Corporation—when court need not investigate return of service of summons upon. It is not incumbent upon the court, where the return of the sheriff is prima facie sufficient, to investigate the truth of the return and determine the relation to the corporation of the officer alleged to have been served.</p>

<p>1. Value of land—when evidence as to, competent. In an action to recover for services in procuring options upon coal lands, it is competent, as bearing upon the question of the value of such services, to show the value of the land upon which options were obtained.</p> <p>2. Instructions—should he predicated upon the evidence. Instructions given in a cause should be predicated upon some evidence therein.</p> <p>3. Instructions—when cannot he complained of. Instructions cannot be complained of which, embody a theory contained in instructions given at the instance of the complaining party.</p> <p>4. Variance—when cannot he complained of. A variance not pointed out in the trial court cannot be complained of upon appeal.</p>

<p>Forcible entry and detainer. Appeal from the Circuit-Court of Washington County; the Hon. James E. Duñnegan, Judge, presiding.</p>

<p>1. Highway—when penalty for obstruction of, will not be enforced. In a proceeding under section 71 of the Road and Bridge Act, a penalty for the alleged obstruction of a highway will not be enforced where it appears that there was no intention upon the part of the defendant to violate the law and that he was at most guilty only of a technical violation of the law.</p> <p>2. Commissioners of highways—power of individual commissioner. In an emergency an individual commissioner has power to make a temporary crossing without special authority given to him at a regular or special meeting of the board of commissioners, where no expense would thereby have been cast upon the body politic.</p> <p>3. Costs—who not liable for. A town is not liable for costs and it is error to render judgment against it for costs.</p>

<p>1. Fraud—when MU of complaint does not justify setting aside decree for. A bill of complaint does not justify the setting aside of a decree for fraud where it does not appear that the complainant in such bill exercised diligence in protecting himself against the rendition of such decree.</p> <p>2. Bill of review—what fraud will not sustain. A bill of review seeking to set aside a decree predicated upon false evidence in relation to matters "affecting the court’s jurisdiction, will be sustained; but such a bill will not be sustained where it is predicated simply upon false evidence alleged to have been given with respect to the subject-matters at issue.</p> <p>3. Decree—what does not justify setting aside. Allegations which show an extension of the period of redemption, will not justify the setting aside of a decree of foreclosure.</p>

<p>Assumpsit. Appeal from the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Instructions—when errors in, will not reverse. Slight errors in instructions will not reverse where the instructions as a whole are substantially correct.</p>

<p>Action in case for. personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Action on the case to recover damages for overflow of land. Appeal from the Circuit Court of St. Clair County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Jackson County; the Hon. Wárben W. Duncan, Judge, presiding.</p>

<p>Mines and Miners Act—provision with respect to furnishing of props construed.. The purpose of the Mines and Miners Act in requiring the supplying of props, was to aid the miners in protecting themselves against the dangers of a hazardous occupation, and not a measure for the greater security of other employees, and for a failure to comply with this duty, only those having use for the props and the right to demand them may complain of a wilful violation on the part of the mine manager to comply with such demand.</p>

<p>1. Fraudulent conveyance—what is not. A conveyance to a creditor made by a debtor and received by the creditor in good faith to pay a tona fide debt, is not a fraudulent conveyance.</p> <p>2. Chattel mortgage—when upon stocJc in trade good as to third parties. A chattel mortgage upon a stock of goods being sold out in regular course of trade is good as against judgment creditors of the mortgagor where possession has been taken under such mortgage by the mortgagee.</p>

<p>Bill in chancery. Error to the Circuit Court of Madison County; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>1. Jurisdiction—what certificate sufficient to confer jurisdiction upon justice in proceeding to lay out road. A certificate in such a proceeding which is in substantial compliance with the requirements of the statute, is sufficient to confer jurisdiction.</p> <p>2. Jurisdiction—how may he questioned in proceeding to lay out road. The jurisdiction of a justice in such a proceeding cannot be questioned either before him or before the county court upon appeal. The manner of placing in issue the question of the justice’s jurisdiction is by certiorari.</p>

<p>Bill in equity. Appeal from the City Court of Bast St. Louis; the Hon. James B. Dunnegan, J.udge, presiding.</p>

<p>1. Verdict—when not disturbed as against the evidence. A verdict based upon conflicting evidence will not be disturbed as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Assignments of error—when will not be considered. Assignments of error not argued will not be considered on review.</p> <p>3. Evidence—degree of, required in civil case when criminal offense is charged. In a civil case, where a criminal" offense is set up; to establish such defense a clear or fair preponderance of the evidence is required, not evidence that will satisfy the jury beyond a reasonable doubt, as in a criminal case.</p> <p>4. Presumption of innocence—application of rule of, in civil case. Where a person in a civil case is charged with a criminal offense he is entitled to the presumption of innocence accorded him under criminal prosecution, and it is proper the jury should allow him the benefit of such presumption to the extent of requiring a clear preponderance of the evidence in support of the charge.</p>

<p>1. Slander—what does not raise presumption of malice. A presumption of malice does not arise from merely telling to another what some one else has stated.</p> <p>2. Slander—proof of words charged. It is not sufficient that the slanderous words set up in the declaration should be substantially proven; they must be proven literally and enough of them to establish the slander charged; other equivalent words will not do.</p>

<p>Contract—what does not destroy mutuality of. A provision of a contract by which a party retains the option for a stipulated period to withdraw therefrom does not destroy its mutuality, and the contract becomes effective and binding upon the expiration of such stipulated option.</p>

<p>Criminal prosecution under Dram-Shop Act. Appeal from the Circuit Court of Bond County; the Hon. Joseph E. Story, Judge, presiding.</p>

<p>Damages—when minor may recover for loss of time. A minor who has been emancipated by his parents and permitted to work for himself, may recover, as an element of damage, loss of time resulting from personal injuries.</p>

<p>1. Pebemptoby nsrsTBucTiow—when properly refused. A peremptory instruction is properly refused where there is evidence tending to prove all the material allegations of the declaration.</p> <p>2. Measube of damages—in action for damages to real property for injury to support. In such case the measure of damages is the cost which would be required to repair or restore the premises to the condition in which they were prior to the injury complained of.</p>

<p>Verdict—when not disturbed as against the evidence. A verdict will not be disturbed as against the evidence where the evidence is conflicting and it does not appear that passion, sympathy or prejudice actuated the verdict.</p>

<p>1. Peremptory instruction—when properly refused. A peremptory instruction is properly refused where there is evidence tending to prove all the material allegations brought in issue by the pleadings.</p> <p>2. Continuance—when refusal to grant, ground for new trial. Where it appears on the trial and subsequent to the refusal of a motion for a continuance that it was essential that the applicant for a continuance have further time for preparation, it is error to deny the same. 1</p> <p>3. Damages—what not element of, in action by wife for personal injuries. Expenses paid by the husband of the plaintiff in connection with an effort to bring about a cure, are not a proper element of damage to be awarded.</p> <p>4. Expert witness—what evidence cannot be given by. An expert witness testifying as to the physical and mental condition of the injured party should not be allowed to express an opinion as to whether or not the conditions found were the result or consequence of the act of which complaint is made.</p> <p>5. Remarks op counsel—when ground for new trial. Where counsel in argument have been guilty of improper remarks intended to excite the passions or prejudice of the jury, a new trial will be awarded if upon the whole record of proceedings it appears that a fair and deliberate verdict was not arrived at.</p>

<p>Criminal prosecution for assault. Error to the Circuit Court of St. Clair County; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of Union County; the Hon. Warren W. Duncan, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Williamson County; the Hon. W. T. Slater, Judge, presiding.</p>

<p>1. Notice—statute requiring service of, upon city, of injury sustained, construed. The fact that a suit is brought without the giving of the notice required by statute, does not preclude the dismissal of such suit, the giving of the notice as required, and the institution of a new action.</p> <p>2. Instructions—when assumption of facts in dispute by, not ground for reversal. . Where it appears from the record that the jury were not misled by the supposed assumption of facts in dispute, a reversal will not follow.</p>

<p>Trespass on the case. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>1. Stairway—duty of owner of building with respect to construction of. The law does not require that the owner or occupant of a building must provide a certain kind of stairway for the use of persons desiring to go up or down, or be held guilty of negligence.</p> <p>2. Master—limit of obligation in furnishing appliances. The law does not require a master to furnish for employees such applianees as are of the best character or are absolutely safe, but to use reasonable and ordinary care and diligence in that respect.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Linus C. Ruth, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Creditor’s bill. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>Bill of beview—propriety of counter-affidavits upon hearing of petition for leave to file. Counter-affidavits upon the hearing of a motion and petition for leave to file a bill of review, upon the ground of newly discovered evidence, are admissible to show whether the evidence claimed to be new was in fact new, or to state circumstances or explain the nature of the evidence claimed to he new, to enable the court the better to judge of its relevancy and materiality. But the statements of the petition and affidavit filed in support thereof as to such newly discovered evidence must, upon such hearing, he taken as true. The truth of such statements is not to be decided upon affidavits, but upon the new hearing if leave to file a hill of review he granted.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Merritt W. Pinckney, Judge, presiding.</p>

<p>1. Final judgment—what not. A judgment is not final, in the technical sense, until a motion for a new trial' which has been interposed thereto, has been overruled.</p> <p>2. Appeal—what brings up for review. Where a judgment is entered and a motion for a new trial and to set aside the judgment is interposed at one term, which motion is disposed of at a subsequent term, an appeal taken in the cause brings up for review not only the order denying the motion to set aside the judgment and for a new trial, but the judgment as well.</p> <p>3. Motion fob new trial—when preserves for review the question whether upon the evidence a new trial should have been awarded. Notwithstanding there was no written'motion for a new trial, the question as to whether, upon the evidence,. a new trial should have been granted, is preserved for review where it appears that a motion for a new trial was made, denied and exception taken.</p> <p>4. Peremptory instruction—when action of court in giving, not preserved for review. Where the defendant did not except to the peremptory instruction given by the court to find a verdict for the plaintiff, the propriety of the giving of such instruction under the evidence is not preserved for review.</p> <p>5. Bailment—what establishes. Where it appears from the evidence that the plaintiff entered the restaurant of the defendant to dine and that as he entered the place one of the head waiters of the defendant took his hat and overcoat and that the plaintiff did not know what such waiter did with them, a bailment is established. •</p> <p>6. Bailment—what establishes prima facie case where article bailed is lost. When the bailor shows a failure to deliver the property on demand, or a loss of or injury to the property while in the hands of the bailee, he makes out a prima facie case of negligence on the part of the bailee, and the burden is then on the latter to show that the loss or injury was not due to any want of ordinary care on his part.</p> <p>7. Continuance—when refusal of court to grant, not subject to review. The question whether the trial court erred in refusing to continue a case because of the engagement of counsel, is not before the Appellate Court for review where the bill of exceptions shows no motion for continuance, no order denying such motion and no exception to the denial of such motion.</p> <p>8. Assignment of ebbor—when deemed argued. An assignment of error which is not referred to in the appellant’s brief either under the head of “Points and Authorities ” or under that of “Argument” but is referred to in that portion of the brief styled “Statement,” is deemed to have been argued and subject to consideration.</p> <p>9. Default—what affidavits seeking to set aside judgment by, should set up. Affidavits filed in support of a motion to set aside a judgment by default, should set up facts which if true constituted a meritorious defense to the action.</p>

<p>Action for damages for breach of contract. Appeal from the County Court of Cook County; the Hon. Dwight C. Haven, Judge, presiding.</p>

<p>1. Contributory negligence—wKat essential to application of doctrine of imputable. Before the contributory negligence of a person other than the plaintiff himself can serve as a defense to an action for negligent injury of the plaintiff, it must appear, first, that such person was guilty of negligence; second, that such negligence was a proximate cause of the injury; and third, that the plaintiff ought to be charged with such negligence as though it had been his own.</p> <p>2. Contributory negligence—what essential to application of doctrine of imputable. Before the plaintiff can be precluded from recovery by a showing of contributory negligence upon the part of a person in privity with him, it must appear that such person at the time of being so guilty of contributory negligence was under the control or subject to the direction of the plaintiff.</p> <p>3. Verdict—when not disturbed as against the evidence. A verdict will not be disturbed as against the weight of the evidence unless it appears to be manifestly wrong or was the result of passion or prejudice.</p> <p>4. Traction company—duty of, to regulate speed of car. It is the duty of a street car company, in approaching a street crossing, so to regulate the speed of its car that a collision which might result from improper regulation would be avoided.</p>

<p>Assumpsit. Error to the Superior" Court of Cook County; the Hon. James A. Cbeighton, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Superior Court' of Cook County; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Constable—power of, with respect to acceptance of delivery bond. A constable is not bound by statute to accept a delivery bond where he has levied upon property upon a justice’s execution. It is within his discretion to accept or refuse such a bond.</p> <p>2. Appeal on certiorari—effect of, upon levy. An appeal or certiorari does not operate to vacate the proceedings already had and a levy already made.</p> <p>3. Contempt—when constable not guilty of. A constable is not guilty of contempt in refusing to obey an order of the Circuit Court requiring him to accept a delivery bond to release a levy made upon an execution issued upon a justice’s judgment, where such levy preceded the certiorari proceedings instituted to review the judgment under which the levy was made. The order being without the Court’s jurisdiction was void.</p>

<p>1. Beneficiary—when change of effected. If a member has done all that he is required by law, by the by-laws of the order and by the certificate issued to him, to effect a change of beneficiaries, a change sought to be effected by him, if legal, will be deemed to have been accomplished, notwithstanding the by-laws and certificate have not been fully complied with through the fault of the order issuing the certificate.</p> <p>2. Beneficiary—when change of, not effective. But where a member seeks to make a change of 'beneficiaries, undertaking to designate a number of beneficiaries to participate in the fund, some of whom are not legally entitled to be named as beneficiaries under the by-laws of the order issuing the certificate, a change will not be deemed to have been effected in favor of any of the persons sought to be substituted as beneficiaries, and the original beneficiary will be awarded the fund.</p> <p>3. Beneficiaries—when by-law with respect to qualifications of, valid. A by-law which limits the blood relations entitled to be named as beneficiaries under a fraternal benefit certificate to first cousins, excluding second cousins, is valid.</p>

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

<p>Decree—when set aside as against the evidence. A decree manifestly against the weight of the evidence will be set aside on review.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Cook County; the Hon. Mebritt W. Pinckney, Judge, presiding.</p>

<p>. 1. Promissory notes—indorsed in blank; what sufficient to pass title to. Notes indorsed in blank pass from hand to hand by actual delivery, and their delivery transfers the title.</p> <p>2. Promissory notes—secured by trust deed; when purchaser of, protected. The purchaser of notes secured by a deed of trust, who acquires the same before maturity in good faith, for value, in the usual course of business and without notice of the rights of the real owner thereof, is protected.</p> <p>3. Decree—who not affected by. A person not a party to a case in which a decree has been rendered and who is in no wise in privity to such decree, is not affected thereby.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court, of Cook County; the Hon. Linus C. Ruth, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook County; tne Hon. Richabd S. Ttjthill, Judge, presiding.</p>

<p>1. Default—what essential to right to set aside. Before granting a motion to vacate a judgment and for leave to plead, two things must concur: first, diligence, or the intervention of occurrences not readily to be avoided, which will operate to excuse diligence; and, second, a meritorious defense.</p> <p>2. Default—what court may consider in determining question of setting aside. Where a motion is made to set aside a judgment in attachment, the court may properly consider the fact that the garnishee served in the attachment has paid the judgment which has been rendered against him.</p> <p>3. Default—what counter-affidavits competent upon motion to set aside. While counter-affidavits upon the merits are not admissible, they are admissible upon the question of diligence.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Vebdiot—when not disturbed as against the evidence. The opportunities of seeing the witnesses and hearing their testimony are denied to the Appellate Court and unless that court is able to say from the testimony in the record that the conclusions reached by the jury are not warranted by the proof, or that the verdict is clearly contrary to the weight of the evidence or the result of passion and prejudice, a verdict will not be disturbed.</p> <p>2. Instruction—what proper in action for injury sustained upon alleged defective street. An instruction is proper which leaves it to the jury to say whether the defect in question was of such a nature that the city, in the exercise of ordinary care, could have discovered the defect in time to repair it before the injury to the plaintiff.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Execution—who proper party to deny, of instrument relied upon as defense. A person alleged to have executed an instrument relied upon as a defense to an action of assumpsit, is the proper person to deny its execution hy affidavit.</p> <p>2. Judgment non obstante veredicto—when entry of, not appropriate. A judgment non obstante veredicto for the plaintiff is not appropriate where all the issues tendered, with a single exception, were material, and where even though the plaintiff prevailed the question of damages would still be open to the consideration of the jury.</p> <p>3. Contract—what does not excuse performance of. One engaged in the mining of coal who contracts with another for the hauling thereof, agreeing that he will keep a certain number of teams employed, is not excused from the performance of such obligation by the loss of customers, without his fault, by virtue of a clause authorizing a failure to perform in the event of strikes or the happening of things beyond his control.</p> <p>4. Contract—when not void for want of mutuality. A contract by which one agrees for a certain period to haul all the merchandise which the other might require, regardless of the amount, in consideration that the other will furnish a minimum specified amount, is not void for want of mutuality.</p>

<p>1. Judgment—effect of words “to stand as security." Where a judgment by confession is opened up to permit the interposition of á defense, the function of the words in the order reciting that the judgment shall “stand as security” is merely to stay execution pending the determination of the merits of the defense to be interposed.</p> <p>2. Judgment—effect of error in form of. An error in the form of the judgment rendered will not justify a remandment for a new trial, but one merely for purposes of correction.</p> <p>3. Promissory notes—what sufficient proof of delivery. The production of a promissory note by the plaintiff is sufficient evidence prima facie of his title and of the fact that the same was duly delivered to him.</p> <p>4. Promissory note—when prima facie corporate obligation. A promissory note, in form as follows, is prima facie a corporate obligation only: “We promise to pay to the order of,” signed: “Northeastern Coal Company, Commodore P. Frye, Secretary. Goodman Wallem, President Northeastern Coal Company.”</p> <p>5. Amendment—what not abuse of discretion in denying leave to file additional pleas. Where a judgment is entered by- confession and then opened up to admit a defense, it is not an abuse of discretion to deny leave to file additional pleas tendered after the case has been placed upon the short cause calendar for trial.</p> <p>6. Plea in abatement—right to plead over after defeat upon. Dilatory pleas in abatement are not to be encouraged by allowing defendants to plead over, as a matter of course, when defeated on them.</p>

<p>Forcible detainer. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Assumpsit. Appeal from the County Court of Cook County; thé Hon. William C. DeWole, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Replevin. Appeal from the Superior Court of Cook County; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the' Superior Court of Cook County; the Hon. George W. Patton, Judge, presiding.</p>

<p>Freehold—when involved. A freehold, within the meaning of the statute, is involved in a case where the necessary result of the judgment or decree is that one party gains and the other party loses an estate in land, or where the title to the estate is so put in issue by the pleadings that the determination of the case necessarily involves a decision of that issue, and by the terms of the statute in all such cases an appeal should go directly from the trial to the Supreme Court.</p>

<p>Action in case for personal injuries. Appeal from the Circuit . Court of Cook County; the Hon. Paul McWilliams, Judge, presiding.</p>

<p>Action for fraud and deceit. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>X. Corporation—when question of existence of, cannot he determined. The charter of a corporation can neither he challenged nor adjudicated in a collateral proceeding. The power to forfeit a charter or question its validity rests in the State at the suit of the attorney-general in a direct proceeding instituted for that purpose.</p> <p>2. Corporation—how question of forfeiture of, must he determined. Quo warranto is the efficient action which can he maintained by the State alone against the corporation whose right to exist is questioned.</p> <p>3. Corporation—effect of cancellation of charter under section á of act of 'May 10, 1901, upon right to sue. The cancellation or attempted cancellation by the secretary of state of the charter of a corporation, does not affect the capacity of the corporation to sue, and a plea relying upon such a cancellation presents no defense to an action.</p> <p>4. Nun tiel corporation—what plea of, technically correct. The plea of nul tiel corporation not averring an affirmative fact is artificially exact in concluding to the country.</p>

<p>Bill of exceptions—effect of absence of seal. The absence of a seal following the signature of the judge to a bill of exceptions precludes the Appellate Court from considering the contents of the bill of exceptions.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Merritt W. Pinckney, Judge, presiding.</p>

<p>Action for fraud and deceit. Appeal from the Superior Court of Cook County; the Hon. George A. Dupuy, Judge, presiding.</p>

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

<p>Mandamus. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Bargain and sale—what constitutes. An offer to sell cement “good for 10,000 barrels” is an offer to sell 10,000 barrels and the acceptance of such offer concludes a valid contract to purchase and sell that quantity of cement.</p> <p>2. Principal—effect of proceeding against agent upon liability of. The mere fact that a party makes a contract with agents and looks to or endeavors to hold them liable thereon, does not constitute such an election as will relieve the principal from liability.</p>

<p>Action of debt. Appeal from the Superior Court of Cook County; the Hon. Jesse Hoedom, Judge, presiding.</p>

<p>1. Handwriting—how proof of, may be made by expert. A handwriting expert should he allowed to state not only his' conclusions but his reasons therefor.</p> <p>2. Handwriting—when proof of, by means of comparison, competent. A handwriting expert may testify as to the authorship of handwriting where he bases his opinion upon a comparison thereof with other writings properly in evidence in the cause.</p> <p>3. Marriage—what justifies breach of promise of. The carrying on by one suing for breach of promise of marriage of a lewd and immoral correspondence intimating an improper relation with a married man, justifies a breach of such promise and is a defense to the action.</p>

<p>1. Error&emdash;what does not constitute. It is not error for the court to give a poor reason for a correct ruling.</p> <p>2. Special plea&emdash;when obnoxious to demurrer. A special plea which sets up facts admissible under the general issue is obnoxious to demurrer.</p> <p>3. Recoupment&emdash;what plea sufficient to admit defense of. A defense of recoupment is admissible under the general issue.</p> <p>4. Attachment&emdash;of what judgment in, not res judicata. A judgment in attachment is not res judicata as to the amount due from the garnishee to the defendant.</p> <p>5. Interest&emdash;when allowance of, proper. Interest is properly allowed where one receives and holds property to, and for the use of another.</p> <p>6. Judgment&emdash;who cannot complain of omission of words “for the use of.” These words if included in the judgment are of no benefit to the judgment debtor, and their omission cannot be complained of by him.</p>

<p>Foreclosure. Error to the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>Bill for separate maintenance. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>1. Discharge in bankruptcy—what does not remove tar of. A part payment of the principal after a discharge in bankruptcy does not, in itself, operate to revive the obligation to pay.</p> <p>2. Jurisdiction—what waives question of. Appearing and contesting a trial upon the merits and otherwise participating in a cause after the same has been reinstated ensuing a dismissal, waives any question of jurisdiction as to the court’s power so to have reinstated the cause,—jurisdiction of the subject-matter being conceded.</p>

<p>1. New cause of action—when amended declaration does not set up. A new cause of action is not set up where the original declaration charged that the defendant so carelessly “propelled” its car that a collision occurred and the amended declaration alleged that said defendant so carelessly “conducted and managed” its car that there was a collision.</p> <p>2. Negligence—what allegation of, sufficient. A general allegation of negligence in the management of a car is sufficient.</p> <p>3. Passenger and carrier—when abstract instruction with respect to duty of latter to former, not prejudicially misleading. An instruction which contains an abstract proposition of law as to the duty of a carrier to exercise the highest degree of care consistent with the practical operation of the road, is not ground for reversal in omitting the elements of reasonableness and practicability of the care that must be exercised, where such elements are referred to in other instructions given.</p> <p>4. Arguments of counsel—what essential to reversal because of improper language. It is only in flagrant cases of impropriety in argument that a reversal will be awarded.</p> <p>5. Remarks of trial judge—when not ground for reversal. Remarks of the trial judge in necessarily ruling upon a motion, if not apparently prejudicial, do not afford ground for reversal.</p>

<p>Assumpsit. Appeal from the County Court of Cook County; the Hon. William H. Hinebaugh, Judge, presiding.</p>

<p>1. Assumpsit—when promise to pay will he enforced. A promise to pay upon receiving a conveyance of real estate from A is enforceable notwithstanding the conveyance in question was made by B, who held the nominal title to such real estate for A who was the legal and equitable owner thereof.</p> <p>2. Motion in akkest—what reached hy. A motion in arrest of judgment, like a general demurrer, reaches only matters of substance.</p> <p>3. Common counts—when recovery may he had under. Where nothing remains to be done but the payment of money, recovery may be had under the common counts.</p> <p>4. Affidavit of amount due—what not essential to entry of judgment upon. In an action of assumpsit where the declaration is accompanied by an affidavit of amount due, a judgment may be entered in favor of the plaintiff where the plea filed is not supported by an affidavit of merits, without the formality of striking such plea from the files.</p> <p>5. Amendment—when court justified in refusing leave to verify plea. The court is justified in refusing leave to verify a plea where no affidavit or showing accompanies the motion.</p> <p>6. Assessment of damages—when action of court in making, without a jury, cannot he complained of. An assessment of damages by the court without a jury cannot be complained of where no request was made for a jury and no exception taken to the failure to call a jury.</p>

<p>1. Injunction—when does not lie against municipality. An injunction will not be awarded against a municipality to enjoin by it the prosecution of suits for the violation of its ordinances.</p> <p>2. Injunction—when does not lie to restrain trespasses. An injunction will not be awarded to restrain the commission of trespasses or of threatened trespasses, except to prevent irreparable injury and where the party defendant is insolvent, and to prevent multiplicity of suits.</p> <p>3. Injunction—when preliminary, should not he granted without notice. A preliminary injunction should not be awarded against a municipality where no notice has been given of the application and no facts set up in the bill showing irreparable injury in the event of the same not being awarded.</p>

<p>Set-off—character of evidence essential to establish. Evidence offered in support of the defense of set-off, if uncertain, indefinite and conjectural as to the amount, is insufficient.</p>

<p>1. Adultery—what not defense to charge of. A charge of extreme and repeated cruelty does not constitute a sufficient recriminatory defense to a charge of adultery.</p> <p>2. Adultery—what evidence sufficient to establish. Where it appears that the party charged with adultery maintained an attitude hostile to her husband, frequently telling him that she did not care for him, and maintained, against his protest, relations of intimacy with one for whom, by word and conduct, she appeared to entertain an affectionate regard, and was found in places where the opportunity to commit adultery was present, establishes, where accompanied by other facts and circumstances, the charge of adultery made against her.</p> <p>3. Verdict—in chancery, when disturbed as against the evidence. Where the verdict of a jury rendered in a chancery cause appears to have been clearly against the weight of the evidence, the same will be set aside.</p> <p>4. Instruction—should not single out particular witness. An instruction is erroneous which singles out and calls undue attention to a particular witness.</p> <p>5. Instruction—when, upon credibility of witness, erroneous. An instruction is erroneous which permits the jury to disregard the testimony of a witness where he has been guilty of exaggeration.</p> <p>6. Instruction—must not assume existence of fact upon which there is no evidence. An instruction is erroneous which assumes the existence of a fact upon which there is no evidence.</p> <p>7. Witness—what fees may properly be paid nonresident. A nonresident witness who attends court may properly be paid his reasonable expenses in coming and going and for the time which he necessarily sojourned at the place where the case was tried.</p> <p>8. Divorce—when instruction as to animus of husband in bringing action for, erroneous. An instruction is erroneous which directs the jury’s attention to an immaterial matter, namely, the animus of the husband in bringing the suit as seeking a property advantage or the possession of his children.</p>

<p>Divorce proceeding. Appeal from the Superior Court ' of Cook County; the Hón. Joseph E. Gary, Judge, presiding.</p>