Volume 134 — Illinois Appellate Court Reports

<p>1. Verdict—when disturbed as against the evidence. A verdict which clearly preponderates in favor of the losing party will be set aside on review.</p> <p>2. Receivers, etc.—what essential to render, personally liable. Wherever assignees, trustees, receivers, or the like, have been held to a personal responsibility, such responsibility is predicated upon contracts made by them either in their official capacity or contracts which, by legal construction, are. held to have the quality of personal responsibility.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook-county; the Hon. Oscab E. Heard, Judge, presiding. Heard in this court at the October term, 1906.</p>

<p>Injunctional proceeding. Appeal from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1906.</p> <p>Statement by the Court. This is an appeal from a decree imposing upon appellant a fine of $1,000 for contempt of court in violating an injunction by which appellant, its officers and persons acting in combination with them were restrained from obstructing and interfering with appellees in the conduct of their business. The bill of complaint upon which the injunction issued, and the injunction order which the defendants are charged with violating, are set forth at length in the statement preceding the opinion of this court in Chicago Typographical Union et al. v. A. R. Barnes & Co., post, p. 20, which was an appeal from the final order making the injunction in controversy permanent. That cause and this were consolidated for hearing and argued together. After the appeal from that final order was perfected complainants in that cause filed a petition charging violations of the injunction. The petition alleges that since the injunction issued appellant and others have maintained a picket system around the plants of the said complainants, in violation of the injunction, have intimidated their employes, threatened them with bodily injury, kept up an organized system of enticing such employes away, and that the president and officials of the appellant union havé been in active charge of these violations. A rule to show cause was entered, to which the defendant union and its president filed their answer. Upon the hearing the Superior Court found that the respondents, the Chicago Typographical Union No. 16, Edwin B. Wright and Edward R. Bessette, had, at the time of its entry, knowledge of the order of this court of October 11, 1905, granting a temporary injunction, and also had, at the time of its entry, knowledge of the final decree entered on October 24, 1905, making such injunction permanent, and that said respondents have and each of them has since the entry of said order and decree and prior to December 9, 1905, violated said injunction and decree as charged in said petition. It was found that all of the acts so committed were a direct and wilful violation of said orders and a contempt of the court. Thereupon said Wright was fined $100 and sentenced to imprisonment for thirty days in the county jail; Bessette was fined $50 and sentenced to imprisonment for a like period and the union was fined $1,000. There is a provision in the final order that in default of immediate payment of the fine imposed upon the union, execution “issue in the name of the People for the use of complainants. ’ ’</p> <p>Bespondents by their answer to the petition deny that they or either of them have directly or indirectly authorized or instigated any acts in violation of the injunction, and they set up the pendency of the appeal. taken to this court from the final order of injunction, claiming that pending said appeal all “right, power, jurisdiction and control of said Superior Court of. Cook county” to enforce the provisions of the final injunction were superseded and suspended. The answer also sets up other matters apparently intended to show that the injunction was improperly issued in the first place.</p>

<p>Stbike injunction—when proper. An attempt to coerce parties to sign an agreement constitutes duress, is illegal, and where sought to be accomplished by conspiracy and combination, violence, threats of violence, etc., may be enjoined in equity.</p>

<p>Criminal prosecution for conspiracy. Error to the Criminal Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at th§ October term, 1906.</p> <p>Statement by the Court. This is an appeal from the Criminal Court of Cook county. Plaintiff in error, hereinafter referred to as the defendant, was indicted at the April term, 1906, of the Criminal Court charged with conspiring “with one Charles H. Bradley and with divers other persons whose names are to the said grand jurors unknown” to obtain money from Cook county by false pretenses, contrary to the statute and contrary to the common law. Motions made in his behalf to quash each count of the indictment were overruled, and having pleaded not guilty he was tried at the July term, 1906, of that court. A jury found him guilty as charged in the indictment, and fixed his punishment at imprisonment in the penitentiary and a .fine of $2,000. Motions for a new trial and in arrest of judgment were overruled and August 15,1906, he was duly sentenced to the penitentiary until discharged as authorized by law and to pay the fine imposed by the verdict. From that judgment of the Criminal Court he prosecutes this writ of error, which was sued out October 3,1906.</p> <p>There is evidence substantially undisputed tending to show that the defendant in error, John A. Cooke, was elected clerk of the Circuit Court of Cook county, Illinois, November 3, 1896, and on December 7th of that year he duly qualified as such clerk and entered upon his duties and continued to act as clerk of that court until December 5, 1904—a period of eight years, having been re-elected in the year 1900.</p> <p>Charles H. Bradley, who was one of the co-conspirators named in the indictment and one of the principal witnesses for the state, had been appointed chief clerk of the Circuit Court of Cook county in the year 1884 and he continued to occupy that position up to the year 1896, when Cooke re-appointed him chief clerk, and Bradley continued as such chief clerk until June 30, 1904, after which time he held the position of deputy clerk throughout the remainder of Cooke’s term. John E. Seinwerth,, also a witness for the state, had been for many years prior to July 1, 1904, a deputy clerk in the office of the clerk of the Circuit Court, and on that date he succeeded Bradley as chief clerk, a position he continued to hold until the expiration of Cooke’s term—December 5, 1904.</p> <p>Charles H. Bradley testified that shortly after defendant assumed the duties of clerk of the Circuit Court, some time in the early part of the year 1897, he had a "conversation with him, in which Cooke said: “I understand that this office is worth from $10,000 to $15,000 a year, and I do not think I am getting as much out of the office as I think I ought to have.” Bradley replied: “Whoever gave you that information did not know what they were talking about. I will try to get what I can for you out of the office, but you cannot expect me to do anything that will be liable to get us into trouble.” The annual salary of the clerk of the Circuit Court during both of Cooke’s terms was $5,000. In the latter part of the year 1898, Bradley had another conversation with Cooke in which they talked over the question of putting extra clerks on the pay roll, and Bradley asked Cooke to furnish him with a list of names. Cooke answered, ‘ ‘ Oh! use any names, ’ ’ and Bradley then asked Cooke if these persons would do any work in the office and Cooke said “No.” Bradley then said that he thought the men ought , to be put to work, so that if any question came up they could produce the men, but Cooke said that he was willing to takes his chances. A list was then made up containing fourteen names which Bradley got out of the city directory. This list, containing the names of fourteen fictitious persons, or at least persons Avho were not employed in the office of the clerk of the Circuit Court, and who performed no services there, and were entitled to no compensation from Cook county, was copied by Bradley onto the November, 1898, pay roll of the clerk of the Circuit Court, and appears on a salary receipt book of the year 1898, introduced in evidence, as follows:</p> <p>“Beceipt Book.</p> <p>Beceived the amount set opposite our names</p> <p>Date of Beceipt.</p> <p>Amount. Salary For.</p> <p>$104.00 Gr. Anderson.</p> <p>104.00 Phillip Sorber.</p> <p>104.00 Albert Windheim.</p> <p>104.00 E. M. Felcher.</p> <p>104.00 L. D. Bauman.</p> <p>104.00. J. J. Smitel.</p> <p>104.00 Jacob Bamlow.</p> <p>104.00 Jos. Marchette.</p> <p>104.00 Frank Sasinski.</p> <p>104.00 Carl Doesburg.</p> <p>104.00 P. E. Jensen.</p> <p>104.00 Harvey E. Hegg.</p> <p>104.00 August Ecklund.</p> <p>88.00 S. W. Frazier.</p> <p>By Charles B. Bradley. M</p> <p>The pay roll was taken by Bradley to the Cook county comptroller’s office, where he received fourteen warrants made out for and payable to the order of those fourteen pretended employes, Bradley signing the different names to the pay roll and then writing transversely across the page, “By Charles H. Bradley.” Bradley indorsed the names of the payees on the backs of - these warrants,- making some attempt to disguise the handwriting, and deposited them on December 15, 1898, in the Chicago National Bank to the personal account of John A. Cooke. The warrants were collected by the Chicago National Bank from Cook county on that daté and the amount of them, $1,440, placed to the'credit of John A. Cooke’s personal account in that bank, thirteen of them being for $104 each and the other for $88. These warrants were introduced in evidence by the state. The first one is in words and figures as follows:</p> <p>“No. 36,407.. State op Illinois. $104.00.</p> <p>Treasurer of Cook County.</p> <p>Payable out of Salary Fund.</p> <p>Circuit Court Appropriation.</p> <p>Series 1898.</p> <p>Court House, First Floor, South End. Countersigned by</p> <p>James C. Irwin, President.</p> <p>Chicago, Ill., Dec. 12, 1898.</p> <p>Will pay Gustav Anderson or order $104.00, for clerk, November salary.</p> <p>Countersigned and registered.</p> <p>S. B. Raymond, Phillip Knopp,</p> <p>Treasurer. Comptroller.</p> <p>Stamped across the face: S. B. Raymond, County Treasurer.</p> <p>Paid Dec. 16, 1898.</p> <p>Endorsed on the back: Gustav Anderson; pay to the Chicago National Bank or order John A. Cooke, Chicago National Bank, Paid!’</p> <p>The other thirteen salary vouchers are identical except that the name of the payee is different in each one, and except that the last one is for $88 instead of $104. The endorsement for deposit on each of these warrants was made by a rubber stamp, “Pay to the Chicago National Bank or order John A. Cooke,” the word “clerk” being stricken out. This sum of $1,440, being the amount of the fourteen salary vouchers for the November salary, 1898, is the first amount as disclosed by the record which the plaintiff in error appears to have obtained from Cook county by means of false pretenses. From that time until November, 1904, the record shows that plaintiff in error obtained in this way $22,590.51 by means of so called “stuffed pay rolls.” One of these pretended employes was a West Side park policeman, and another a letter carrier in the employ of the United States government.</p> <p>From November, 1898, until July, 1904, Charles H. Bradley acted as the principal instrument in perpetrating these frauds. From that time until December, 1904, when plaintiff in error went out of office, John E. Seinwerth acted as the principal conspirator associated with him in obtaining this money. Every month during that whole period the names of fictitious persons or persons who had no connection with the office of the circuit clerk, and who performed no services there and who were entitled to no compensation whatever from Cook county, were placed upon the pay roll by Bradley while he was acting as chief clerk and afterward by Seinwerth while he acted as chief clerk, and under the direction of plaintiff in error. Sometimes the names of old clerks who had at one time been employed in the office of clerk of the Circuit Court were used, sometimes the names of real persons who were never in that office, but usually the names were taken by Bradley from the city directory. In one instance plaintiff in error himself wrote out a list of ten names and gave it to Bradley with instructions to place those names on the pay roll for December, 1899, each for $100. The ten vouchers, aggregating $1,000, were all collected and the money deposited to John A. Cooke’s personal account in the Chicago National Bank February 2, 1900, and the original deposit slip showing that deposit was identified by Bradley and introduced in evidence by the state. The pay rolls for the circuit clerk’s office, containing names of real as well as pretended employes, were taken by the chief clerk to the office of the county comptroller, and there the salary vouchers were made out. The actual employes would call and get their salary vouchers and receipt for them. The chief clerk, either Bradley or Seinwerth, would get the vouchers for the fictitious or pretended employes and sign for them. Bradley or Seinwerth then were accustomed to take the vouchers to the county treasurer’s office, collect the amounts and give the currency to plaintiff in error who, after counting it would hand it back to Bradley or Seinwerth, with instructions to deposit it to his (Cooke’s) personal account in the Chicago National Bank. This was done in every instance while Bradley acted as chief clerk except the first. That was in November, 1898, while Bradley, instead of taking the fourteen vouchers aggregating $1,440 to the county treasurer’s office and getting the currency for them, endorsed on them the names of the payees and deposited them to defendant’s personal account in the Chicago National Bank. The evidence shows that in many instances the exact amount of the vouchers was the amount deposited in the Chicago National Bank to the personal account of John A. Cooke on the particular date.</p> <p>The state introduced in evidence the original deposit slips made out by either Bradley, or Seinwerth and given to the Chicago National Bank at the time the deposits- were made. Bradley identified these slips as being in his handwriting or in the handwriting of Seinwerth, and the money was traced to defendant’s personal account in the Chicago National Bank.</p> <p>The indictment was returned April 28, 1906, and to escape the statute of limitations it must appear that the conspiracy existed after October 28, 1904. According to the-uncontradicted evidence, the pay roll for October, 1904, was made out by Bradley under direction of defendant and delivered to the county comptroller after that date. It contained the names of two persons not employed in the office of the circuit clerk. Vouchers were made out payable to the order of these persons. The money for one of these vouchers is shown to have been taken out of the office drawer and paid to the defendant, and the voucher itself was deposited to the credit of the defendant as clerk November 5, 1904. The pay roll for the month of November is dated November 29, 1904, and contained the names of the same two persons who were not employed in the defendant’s office. Vouchers were issued in their names and receipted for by Seinwerth,who had then become chief deputy. The money on one of these was likewise paid to the defendant out of the drawer, and the voucher deposited in the bank to defendant’s official account. The other voucher was handed to the defendant.</p> <p>So far as appears, .neither Bradley nor Seinwerth profited by the conspiracy, receiving only their regular salaries and the defendant being the sole beneficiary.</p>

<p>1. Wbit of ebbor—in what name should he sued out. Where one of several defendants to a decree in equity seeks to review the same by writ of error, that defendant should sue out the writ in' the names of all of the defendants to the decree, and then summon and sever those plaintiffs in error who refuse to assign errors.</p> <p>2. Writ of error—what effects severance of parties. A failure of one defendant in a decree, who is made a defendant in error by another defendant in such decree and served with scire facias ad audiendum errores, to appear and assign cross error or join with the plaintiff in error in the prosecution of the writ of error, operates to create a severance and justifies such plaintiff in error in prosecuting the writ of error alone.</p> <p>3. Transcript of record—what not proper part of. A petition for a writ of assistance and an order entered pursuant thereto, are not proper parts of a transcript of record filed" upon a writ of error sued out prior to the filing of such petition and the entry of the order thereon.</p> <p>4. Solicitor’s fees—when allowance of, in foreclosure proceeding, improper. An allowance of a solicitor’s fee in a foreclosure proceeding to a law partner of the trustee named in the trust deed sought to- he foreclosed, is improper where such trustee would participate in such fee.</p>

<p>1. Verdict—when set aside as against the evidence. A verdict clearly against the evidence will he set aside by the Appellate Court on review.</p> <p>2. “Burden of proof”—when phrase erroneously used in instruction. Where the phrase “burden of proof” is used to mean other than the obligation on the party who asserts the affirmative of the issue to prove the same by a preponderance of the evidence, the sense in which such words is used should be clearly indicated.</p>

<p>Separate maintenance proceeding. Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.</p> <p>Statement by the Court. This writ of error is prosecuted from a decree entered in the Superior Court granting the defendant in error separate maintenance in the sum of $65 per month, and the control of her son.</p> <p>The bill filed by complainant below avers the marriage of herself and defendant occurred on March 20, 1890, and that they lived together as husband and wife until about November 25, 1904, since which date the defendant has refused to live and cohabit with the complainant, and that they are living-separate and apart at the time of the filing of the bill and that a child, then four years and eight months old, was -bom to them; that a friendship sprang up between defendant and Emily S. Wallace, a nurse who attended upon complainant in error in her sickness; that they became in love with each other and that defendant committed adultery with Miss Wallace in Omaha, Nebraska, in the early part of the year 1903 and in Chicago in 1904; that since defendant became infatuated with said Wallace he has treated complainant with very little consideration; that said Wallace lived in their home for several years except when she was temporarily absent at intervals, until January 11, 1905; that defendant ceased his marital relations with complainant in November, 1904, and has persisted in such cessation until the present time; that in January, 1905, complainant sent said Wallace away from their home, and that she thereupon made her home with the parents of plaintiff in error in an apartment in the same building where defendant spends all his time except when at business; that defendant now only furnishes complainant with a place to live, but with no money or clothing for herself or son; that she is without means to support herself and son or to prosecute this suit.</p> <p>The bill then alleges that defendant receives a salary of $150 per month; that she fears that as soon as he learns of the institution of this suit he will do her great bodily harm unless restrained by injunction; that defendant has lately threatened to leave this state and go where complainant will be unable to obtain any relief against him, and prays for separate maintenance for herself and son and for an allowance of money with which to prosecute this suit and for a ne exeat república and an injunction.</p> <p>The Superior Court ordered the injunction and the ne exeat to issue.</p> <p>The answer of defendant was filed March 30, 1905. It admits the-marriage and alleges that complainant .and defendant lived together as husband and wife from their marriage until January 10, 1905, and that he at all times treated complainant as a loving and affectionate husband; denies that he refused to live and cohabit with her, and alleges that complainant deserted him without cause; denies that she performed the duties and demeaned herself as a loving and affectionate wife; admits that they are now living apart and asserts that it is wholly the fault of- complainant; admits that one child was born to them and alleges the name of the child is Howard "Wallace Will, the middle name, Wallace, having been given to the child at the request of complainant in evidence of her regard for Miss Wallace; denies he ever committed adultery with Miss Wallace; alleges that she was a trained nurse and entered his family in 1898 in that capacity, and nursed and cared for complainant during a long illness and at the same time managed the household affairs for complainant, and so endeared herself to complainant that upon recovering from her illness complainant besought said Wallace to make her home with her as a member of her family except as she might be engaged in her professional duties, and that defendant consented thereto, and said Wallace resided in their family until January 10, 1905, and was treated as a member of the family; denies all acts of familiarity with Wallace averred in the bill; alleges that at the time the bill was filed complainant and defendant occupied a comfortable flat for which defendant paid the rent; that the flat was luxuriously furnished and defendant provided a horse and carriage for the family use and provided liberally for complainant’s clothing and for every wish and desire to the best of his ability, and in so doing became indebted to the extent of $3,000; that defendant took out policies of insurance on Ms life in two companies, payable to complainant in the event of Ms death, thereby seeking to provide for complainant in'the event of his death; that at the time of filing Ms answer he is without property or estate; that prior to the institution of this suit he Was in receipt of a salary of $150 per month, but that he has been discharged on account of these proceedings, and that complainant has broken up the home provided for her and has removed and secreted all the furniture and compelled defendant to surrender his,said life insurance, and the cancellation value thereof has been sequestered under order of tMs court for the benefit of complamant.</p> <p>Upon the hearing the court entered a decree finding that the allegations of the bill charging that defendant committed adultery with Emily S. Wallace are not sustained by the proofs; that complamant and defendant are living separate and apart without fault of the complainant, but on account of the fault of the defendant, and decrees that the complamant is entitled to separate mamtenance from the defendant, and orders defendant to pay complainant $65 per month, and that the money impounded with the clerk of the court in this cause be used for the payments of said monthly allowance until said moneys are exhausted, and that defendant thereafter make such payments, and gives the custody and care of the child to the complainant;</p>

<p>1. Fraternal benefit society—when certificate may be sued on in state other than Illinois. An action may be maintained upon a benefit certificate in a state other than Illinois, where it does not appear that the contract was necessarily to be performed in Illinois, and where it does appear that the society issuing the certificate was doing business in the state in which the suit is brought.</p> <p>2. Injunction—when does not lie to restrain suit upon benefit certificate. An injunction should not be awarded to restrain an action upon a benefit certificate brought. in a state other than Illinois, notwithstanding the certificate was issued in Illinois to, and in favor of, citizens thereof, merely because the courts of another state in which the society issuing the certificate was doing business, have placed upon such contract a construction different from that which had been placed thereon by the courts of Illinois.</p>

<p>1. Corporation—when 6ill to dissolve, does -not lie. A bill does not lie under section 25 of the Corporation Act to dissolve a corporation for non-user, where it appears that the non-user resulted from the fact that possession of the corporate property had Been taken under a pending involuntary Bankruptcy proceeding.</p> <p>2. Assignments—jurisdiction of County Court with respect to. The jurisdiction of the County Court with respect to assignments, is exclusive, and where a debtor makes an assignment for the benefit of his creditors, or for the benefit of a creditor, the right and power of the County Court to administer the same at once arises.</p>

Injunctional proceeding. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobb, Judge, presiding. Heard in this court at the March term, 1907. Statement by the Court. This appeal is by one M. J. Hawley from an injunction pendente lite issued by a chancellor in the Circuit Court in the case of Buckingham and others against The Traders Insurance Company, on the motion of The State Bank of Chicago, a receiver appointed in said cause.

Action of debt upon bond. Error to the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906. Statement toy the Court. This is a suit upon a bond, the condition of which is thus stated: “The condition of the above obligation is such that whereas, said Sig.

Attachment. Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906. Statement by the Court. Defendants in error began an action of debt against one Moses A. Thayer October 3, 1898, in the Superior Court and filed their declaration the 11th of the same month. December ISth the plaintiffs sued out an attachment in aid upon filing bond and affidavit pursuant to the statute.

Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Arthur H. CHETEAm, Judge, presiding. Heard in the Branch Appellate' Court at the October term, 1906. Statement by the Court. Plaintiff in error brought an action on the case against defendant in error to recover damages for personal injuries alleged to have been sustained by her while a passenger, on one of its cars.

Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Thomas G. Wihdes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906. Statement by the Court. October 50, 1899, plaintiff in error filed an affidavit before a justice of the peace of Cook county for a writ of replevin and procured a writ, which he delivered to a constable and gave to the constable a bond.

<p>Separate maintenance. Error to the Circuit Court of Cook county; the Hon. John L. Heart, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.</p>

Action commenced before justice of the peace. Appeal from the County Court of Cook county; the Hon. William C. DeWolf, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.

Creditor’s bill. Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906. Statement by the Court.

Action in case for personal injuries. 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, 1906. Statement by the Court. This appeal is prosecuted from a judgment of the Circuit Court against appellant and in favor of Frank Soszynski for $5,000.

Bill of interpleader. 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, 1906. Statement by the Court. Josef Pisa became a member of the appellee, Supreme Lodge Bohemian-Slavonian Knights and Ladies, a fraternal benefit society organized under the laws of Illinois, and took out a benefit certificate payable at his death to his wife, appellee, Josefina Pisa.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. . Heard in this court at the October term, 1906. Statement by the Court. This is an appeal from a judgment for $10,000 against the appellant in favor of the appellee in the Superior Court of Cook county. There have been two trials of the cause below, the first resulting in a verdict for $12,500.

Mechanic’s lien' proceeding. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding. Heard in this court at the October term, 1906. Statement by the Court.

<p>Forcible detainer. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1906.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1906.

Divorce. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1906. Statement by the Court. Appellee and appellant, prior to February 10, 1902, were husband and wife. At that date the Circuit Court rendered a decree, at the suit of appellee, divorcing her from appellant. They had one child, the sole issue of their marriage, Lake Y. Scott, who was six years of age February 27, 1906.

Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in this court at. the October term, 1906.

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the October term, 1906.</p>

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

<p>Action on the case. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1906.</p>

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

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

<p>This case is controlled by the decision in C., B. & Q. Ry. Co. et al. v. DeFreitas, ante, p. 228.</p>

<p>1. Amendments—how statute authorizing, construed. The statute authorizing amendments in any process or pleading is to be liberally construed and an amendment is permissible that tends to the furtherance of justice.</p> <p>2. Injuries act—action under, not identical with action under Mines and Miners Act. The cause of action accruing to an administrator by virtue of the Injuries Act to recover damages for the benefit of the widow and next of Mn of his intestate, is separate, distinct and different from the cause of action accruing by virtue of the Mines and Miners Act to the widow, lineal heirs, adopted children, or other person or persons dependent for support upon the deceased, for the recovery of damages.</p> <p>3. Statute of limitations—when amendment barred by. Where a cause of action predicated upon the Mines and Miners Act is amended by the substitution of a cause of action predicated upon the Injuries Act after such latter cause of action, if made the basis of an independent action, would be barred by the Statute of Limitations, such an amendment is barred.</p>

<p>Mandamus. Appeal from the Circuit Court of Piatt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>Argument of counsel—when improper, will not reverse. Notwithstanding the argument complained of was improper, a reversal will not be awarded unless there is probability that another trial would result in a different verdict.</p>

<p>Judgment by confession—duty of court to set aside. A motion to open a judgment and for leave to plead to ’the merits is addressed to the sound judicial discretion of the court, and involves the exercise by the court of equitable power with respect to its own judgment; and where' the defense sought to be pleaded appears from the showing made to be complete, the judge to whom the motion is addressed should open up the judgment and, allow the defense to he interposed.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbbouoh, Judge, presiding. Heard in this court at the November term, 1906.

Action for fraud and deceit. Appeal from the Circuit Court of Champlain county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1906.

<p>Decree—when not disturbed as against the evidence. A decree will not be disturbed on review, in the absence of errors of law, as against the evidence, unless the findings of the chancellor are manifestly against the preponderance of the evidence.</p>

<p>1. Continuance—diligence essential to, as matter of right. The denial of a motion for a continuance because of the absence of a material witness, is not error, where a showing of diligence in seeking to obtain the attendance of such witness does not appear.</p> <p>2. Nul tiel coepobation—what proof sufficient to meet plea of. Held, that in this case that it was not necessary under a plea of nul tiel corporation for the plaintiff to show that it was a corporation de jure and that parol evidence that the plaintiff was known and transacted business as a corporation was proper and sufficient to meet the plea.</p> <p>3. Common counts—when objection to right to recover under, comes too late. It is too late first to object upon appeal that no recovery can be had under the proof because the common counts only had been filed.</p>

Action under Dram-shop Act for loss of support. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1906.

Action in case for personal injuries. Appeal from the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the November term, 1906.

<p>Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>Verdict—when not disturbed as against the evidence. A verdict based upon conflicting evidence will not be set aside on review, in the absence of errors of law, unless the same is clearly and palpably against the weight of the evidence.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>1. Premium—what constitutes waiver of payment upon specific date named in policy. A waiver of the requirement of a' policy as to payment upon a day named in the policy is established where it appears that the general agent of the insurer had expressly notified the insured that the provision of the policy requiring the payment of premium on the first day of each month would not be insisted upon and where it further appeared that such agent had uniformly accepted payment of such premiums at any time before the tenth day of the month as a compliance with the terms of the policy.</p> <p>2. Waiver—how question of, determined. What facts constitute a waiver is a matter of law for the court, but whether the facts existed in any given case is a question of fact to be determined by the jury.</p>

<p>This case is controlled by the decision in North American Accident Insurance Co. v. Whitesides, ante, p. 290.</p>

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

<p>Bill in equity. Appeal from the Circuit Court of Clark county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1906.</p>

Action for damages to real property. 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>Mechanic’s lien proceeding. Appeal from the Circuit Court of Coles county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1906.</p>

Action on the case. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court att the November term, 1906.

<p>Fence—when liability for injuries resulting from failure to maintain partition, does not exist. Where the owners of adjoining land have agreed that the stock of each might pasture on the land of the other, no action will lie hy one against the other for a failure to maintain a partition fence.</p>

<p>1. Husband and wife—when conveyance from former to latter will not he set aside, at instance of- creditors. It the equity of the wife is first in time, first in right, and is first consummated by a conveyance vesting her with the legal title, the conveyance will not be set aside at the instance of creditors who have not extended credit upon the faith of the husband’s ownership of the land.</p> <p>2. Decree—rwhen not set aside as against the evidence. Where the evidence in the record is so contradictory as to leave the minds of the judges of the Appellate Court in doubt as to the merits of the controversy, a reversal of the decree, as against the weight of the evidence, will not be ordered.</p>

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

<p>Assumpsit. Error to the City Court of Litchfield; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the November term, 1908.</p>

<p>Cabbies—when liability of, for negligence, is to consignor and not to consignee. Where a shipment is made to the consignee who has not agreed to accept the same unless the merchandise is up to a certain grade, the right of action for negligence in transporting is in the consignor where the consignee rejects1' the shipment.</p>

<p>1. Husband and wife—how conveyance between, viewed where attacked by creditors. Where a conveyance from hushand to wife is sought to be set aside by the creditors of the former, courts of equity will closely scrutinize the transaction.</p> <p>2. Preference—right of husband to make, in favor of wife. Where the contractual relation of debtor and creditor actually exists between husband and wife, the husband may for a valuable consideration and in good faith prefer his wife to his other creditors.</p>

<p>Trespass. Error to the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>Divorce. Error to the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1906.</p>

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

<p>1. Instruction—when estoppel to complain arises. A party cannot complain of the submission to the jury of a particular issue where by his own instructions tendered he has requested the court to submit such issue to the jury.</p> <p>2. Instruction—when giving of, containing abstract proposition of Taw, will not reverse. The giving of an instruction containing an abstract proposition of law, not concretely applied to the case, will not reverse in the absence of a showing of prejudice resulting.</p> <p>3. Sidewalk—duty of municipality with respect to. " A municipality is bound to know that a particular walk within its territorial limits is constructed of lumber and that the material of which it is constructed is likely to become decayed, and, having such knowledge, it is burdened with the duty of exercising reasonable care by inspection to see that the sidewalk is in a reasonably safe condition for travel.</p>

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

<p>Assumpsit. Error to the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1906.</p>

Bill for injunction, etc. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the November term, 1906.

<p>1. Appeal—what not final order in mandamus. A judgment for costs entered against the petitioner in a mandamus proceeding is not a final and appealable order. It must appear by the order that the petition was dismissed in order to constitute the order final and appealable.</p> <p>2. Jurisdiction—when Appellate Court will raise question of. The Appellate Court, of its own motion, will refuse to determine a cause where it appears from the transcript that it is without jurisdiction.</p>

<p>This case is controlled by the decision in Meyer v. City of Decatur, ante, p. 385.</p>

<p>Secondary evidence—when competent to prove contents of documents out of jurisdiction of court. Secondary evidence may be offered to prove the substance of papers out of the jurisdiction of the court, where due efforts have been made to obtain the originals, and not otherwise.</p>

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

<p>Appeal—when judgment not final. A judgment for costs is interlocutory only, and no jurisdiction to review such, a judgment exists in the Appellate Court.</p>

<p>This case is controlled by the decision in C., C., C. & St. L. Ry. Co. v. Dukeman, 130 Ill. App. 105.</p>

<p>1. Dram-shop Act—right of mother to recover for loss of son’s support. Notwithstanding the son’s father is living, the mother of a minor son may recover for loss of support resulting from the habitual intoxication of such son caused by the defendants.</p> <p>2. Exemplary damages—when may he recovered in action for loss of son’s support. If circumstances justify, a mother may recover for the loss of her minor son’s support resulting from the habitual intoxication of such son caused by the defendants.</p> <p>3. Argument of counsel—when impropriety of, will not reverse. Improper language used in an argument to the jury will not reverse where such language was provoked by the remarks of the complaining counsel.</p>

<p>Verdict—when set aside as against the evidence. A verdict unwarranted by the evidence will be set aside on review.</p>

<p>1. Consideration—what essential to forbearance as. In order to constitute forbearance as a valid consideration, there must be an agreement to forbear or an extension of credit to the debtor.</p> <p>2. Instruction—must not leave issue of law to jury. An instruction which permits the jury to determine what is or is not a pledge in law, is erroneous.</p>

<p>1. Common cabbies—when contract of shipment entire. A contract of shipment is considered to be one entire contract of carriage from the point of shipment to that of destination, notwithstanding it provides that the “responsibility of each carrier” is “to extend hereunder only” to the line of the receiving carrier, where no provision is made by which any other person than the receiving carrier is to choose the connecting carrier and the receiving carrier does, in fact, choose such connecting carrier.</p> <p>2. Common cabbieb—what essential to bind shipper to restrictions in contract of shipment. In order that restrictions contained in ■ a bill of lading shall bind the shipper, it is essential that such shipper either by himself, or his agent, at the time of making the contract of shipment knew the terms and conditions of the bill of lading and assented thereto.</p> <p>3. Common cabbieb—when common law liability of, will be enforced. The common law liability Of a carrier can only be defeated by showing that the shipner, who delivers his goods to the carrier for transportation and pays therefor and who accepts a written contract of such shipment imposing restrictions, knows the contents of the contract and assents to its terms-</p> <p>4. Fbeight bates—what prima facie evidence of reduction In. A declaration contained in a bill of lading to the effect that a part of the consideration entering into the agreement of carriage is the reduction of rates, is prima facie evidence of such reduction.</p> <p>5. Bill of lading—authority of agent to assent to restrictions contained in. If an agent has authority to make a consignment, he also, in law, has authority to consign upon such terms as the carrier would make upon that kind of a shipment, and his act in that regard will bind his principal.</p>

<p>Replevin. Appeal from the City Court of Mattoon; the Hon. Lapsley C. Henley, Judge, presiding. Heard in this court at the Novenr her term, 1905.</p>

<p>Assumpsit. Appeal from the Circuit Court of Logan county; the .Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the November term, 1906.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1906.

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1906.

<p>1. Verdict—how may he rendered. A verdict may be rendered either orally or in writing.</p> <p>2. Instructions—when assignment of error with respect to, will not he considered. Instructions claimed to have been improperly refused will not be reviewed on appeal where the abstract does not show the instructions given.</p>

<p>Criminal prosecution for contempt. Error to the Circuit Court of Montgomery county; the Hon. Tbuman E. Ames, Judge, presiding. Heard in this court at the November term, 1906.</p>

Petition to annex lands to drainage district. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the November term, 1906.

<p>Foreclosure. Appeal from the Circuit Court of DeWitt county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the November term. 1906.</p>

<p>Action on the case. Appeal from the Circuit Court of Logan county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>"1. Common cabbies—propriety of excluding shipper’s contract from fury. Upon this question the decision of the court is controlled by the ruling in C., C., C. & St. L. Ry. Co. v. Pinnell, post, p. 571, to which reference is made.</p> <p>2. Common cabbies—what does not relieve, from, liability. Where the contract for shipment is one for through carriage, relief from liability cannot be obtained by showing that the negligence charged was that of a connecting carrier.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Champaign county; the Hon. Solon Phil-brick, Judge, presiding. Heard in this court at the November term, 1906.

<p>Trespass. Appeal from the Circuit Court of Edgar county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>Statute of frauds—when defense to hill for specific performance. A bill specifically to enforce a verbal option for a three-years’ extension of a lease will be defeated by the defense of the Statute of Frauds, notwithstanding possession in the complainant, where the bill does not aver election to exercise the option and does not show payment of rent under the option as exercised or the making of valuable improvements predicated thereon.</p>

<p>1. Guarantor—when estopped to urge deviation in original undertaking. Where the guarantor has participated in a course of dealing contrary to the original undertaking, he thereby waives his right to insist upon a strict performance of the original undertaking.</p> <p>2. Guarantor—what not substantial departure in original undertaking. A guarantor is not released by deviation in the original undertaking which consists in a change of the place of payment from one state to another where no prejudice could result.</p> <p>3. Declaration—what rejected as surplusage. Where a declaration states a cause of action, an immaterial averment will be rejected as surplusage. I</p>

<p>Assumpsit. Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>Action on the case. Appeal from the Circuit Court of Coles county; the Hon. J. W. Craig, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>Assumpsit. Appeal from the Circuit Court of Vermilion county; the .Hon. Mobton W. Thompson, Judge, presiding. Heard in tbir; court at the November term, 1906.</p>

<p>Indorsee—when protected against defenses. An indorsee or assignee of commercial paper who takes the same before maturity, for a valuable consideration, without knowledge of any defect, and in good faith, will be protected against the defenses of the maker,, and mere suspicion of defect of title, or the knowledge of circumstances calculated to excite suspicion in the mind of a prudent man, or even gross negligence on his part, at the time of the transfer, will not defeat his title. In other words, the only thing which will defeat his title is bad faith on his part, and the burden of proof is upon the party assailing his right to establish that fact by a preponderance of the evidence.</p>

<p>1. Commissions—when "broker entitled to. A broker is entitled to commissions upon a sale concluded by his principals if he is the procuring cause in the consummation thereof.</p> <p>2. Witness—right to .refresh recollection. If a witness called by a party unexpectedly gives testimony which is at variance with a previous written statement made to such party, such written statement may be brought to the attention of the witness for the purpose of refreshing his memory or awakening his conscience.</p>

Proceeding under. Draihage Act for recovery of benefits. Error to the County Court of Vermilion county; the Hon. Chables S. White, Judge, presiding. Heard in this court at the May term, 1906.

Action in case for fraud and deceit. Appeal from the Circuit Court of Logan county; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the November term, 1905.

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

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

^Action in case for personal injuries. Appeal from the Circuit Court of Mason county; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the November term, 1906.

Contested claim in court of probate. Appeal,from the Circuit Court of McDonough county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the November term, 1906.

<p>1. Ordinance—'-tohen not to be held unreasonable. When municipal authorities have adopted an ordinance, before a court is justified in holding the same to be invalid, the unreasonableness or want of necessity of such a measure for the public safety and for the protection of life and property must be made clearly to appear.</p> <p>2. Ordinance—limiting speed of vehicles; to whom applies. An ordinance which limits the speed of vehicles to six miles per hour, applies to a fire marshal driving to a fire.</p> <p>3. Contributory negligence—when violation of ordinance constitutes. A person injured by colliding with a railroad train is guilty of contributory negligence where at the time of such collision he was driving a vehicle in excess of the speed permitted by ordinance.</p>

<p>Decbee—when cannot he-complained of. A decree entered by consent is not properly the subject either of appeal or complaint by assignment of errors.</p>

<p>1. Chancellor—effect given to findings of fact. Findings of fact by a chancellor are entitled to as much weight upon controverted questions of fact as is the -verdict of a jury.</p> <p>2. Highway commissioners—rights and obligations of, to undertake to drain public highway. Where highway commissioners undertake to drain a public highway, they possess the same rights and are governed by the same rules as are adjoining landowners, who may undertake to drain their own lands, except where they proceed under the eminent domain laws of the state.</p> <p>3. Highway commissioners—when injunction lies against. Where highway commissioners attempt to divert water from its natural course and drain it upon the land of another, they will he enjoined at the instance of the owner of the land upon which the water is proposed to be turned.</p>

<p>Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1906.</p>

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

<p>1. Paupers—when county liable to city for expenditures in-furnishing medical aid, etc. Where a comity after notice of the necessity therefor fails to. care for poor persons, as provided by section 24 of the Pauper Act, and a city does so, such city may recover from the county the amount expended by it for that purpose, if reasonable, and notice to any one of the members of the county board is sufficient.</p> <p>2. Instruction—when giving of, containing abstract proposition of law, erroneous. An instruction containing an abstract propo- • sition of law is ground for reversal where its tendency would be to mislead the jury.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1906.

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

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

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

Criminal prosecution for sale of intoxicating liquors. Error to the County Court of Ford county; the Hon. H. H. Kerr, Judge, presiding. Heard in this court at the November term, 1906.

Criminal prosecution for sale of intoxicating liquor. Error to the County Court of DeWitt county; the Hon. F. C. Hall, Judge, presiding. Heard in this court at the November term, 1906.

Action commenced before justice of the peace. Appeal from the Circuit Court of Fulton county; the Hon. R. J. Grier, Judge, presiding. Heard in this court at the November term, 1906.

Action in case for personal injuries. Appeal from the Circuit Court of Edgar county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1906.

<p>Gabbier—when error to exclude contract of shipment from jury. It is error to exclude a contract of shipment from the jury where there is evidence tending to show that the shipper knew of the contents of such contract and assented to the restrictions contained therein.</p>

<p>1. Wages—when contract of service does not prohibit assignment of. A contract of service does not prohibit an assignment of wages so as to render the same null and void where the provision with respect thereto is that assignments when made are ground for immediate dismissal, and this especially in view of the fact that the employer had in some instances recognized assignments.</p> <p>2. Wages—when assignment of, effective. An assignment oi wages earned during a particular period is effective to pass title thereto regardless of whether the rate of payment is increased or lessened during the period referred to in the assignment.</p> <p>3. Wages—effect of authority to collect, contained in assignment. An assignment of wages which contains an authority to the assignor to collect on behalf of the assignee, does not preclude such assignor from asserting his right to collect upon his own behalf.</p>

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

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

Action commenced before justice of the peace. Error to the Circuit Court of Menard county; the Hon. Thomas N.- Mehan, Judge, presiding. Heard in this court at the November term, 1906.

Action commenced before justice of the peace. Appeal from the Circuit Court of Piatt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the November term, 1906.

<p>Drainage district—who may not connect with. An owner of land lying outside of a drainage district is not entitled to connect with the drain of a district.</p>

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

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1906.

<p>Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>This case is controlled by the decision in American Home Circle v. Schneider, ante, p. 600.</p>

<p>Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1906.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Coles county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the November term, 1906.

Criminal prosecution for keeping slot machine. Error to the County Court of Adams county; the Hon. C. B. McCrory, Judge, presiding. Heard in this court at the November term, 1906.

<p>Bill in equity. Appeal from the Circuit Court of Macon county; the Hon. J. W. Craig, Judge, presiding. Heard in this court at the November term, 1906.</p>

<p>Assumpsit. Error to the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1906.</p>

Action in case for death caused by alleged wrongful act. Appeal from the City Court of Litchfield; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the November term, 1906.

<p>Bill for injunction. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1906.</p> <p>Statement by tlie Court. Joe H. Fussell, T. A. Havron, John W. Parker and others filed their hill for injunction in the Circuit Court of Macon county to restrain J. B. Hail and others, as commissioners to the general assembly of the Cumberland Presbyterian Church, from taking steps toward perfecting a union of the Cumberland Presbyterian Church with the Presbyterian Church of the United States of America. A demurrer was interposed to the bill and sustained by the trial court. Fussell et al. elected to stand by their bill, whereupon the prayer thereof was denied and the bill dismissed for want of equity at the costs of the complainants. Fussell et al. appealed.</p> <p>It was alleged in the bill, in substance, that said Fussell, Havron, Parker et al. were members in good standing in, and communicants of the Cumberland Presbyterian Church; that they presented the bill for injunction for themselves and on behalf of all other members in good standing in said Cumberland Presbyterian Church, who were opposed to the reunion and union of the Cumberland Presbyterian Church with the Presbyterian Church of the United States of America, who numbered more than 100,000 persons; that the said Cumberland Presbyterian Church was organized as a separate church, independent of all other, on the fourth day of February, 1810, in Dixon county, Tennessee, and had always since that time continued its separate church organization; that the cause which, in 1810, led to the separation from the Presbyterian Church of .the United States of America, was the doctrines of “election” and “reprobation” as taught in the Westminster Confession of Faith of the Presbyterian Church of the United 'States of America, to which confession of faith the Cumberland Presbyterian Church had never subscribed, but upon the contrary held to such a modification of such confession of faith as to eliminate therefrom the doctrine of unconditional election and reprobation and limited atonement, further holding that there were and are no eternal reprobates, and that all infants dying in infancy are saved; that said Cumberland Presbyterian Church had congregations disseminated through Illinois, Iowa, Missouri, Kentucky, Tennessee and many other western states; that said religious society so composed was not incorporated under the laws of any state, but was governed by a constitution adopted in 1883, which had been followed and recognized throughout the entire denomination ever since it was so adopted; that the governmental affairs of the church were administered by and through church courts known as the church “session,” “presbytery,” “synod” and “general assembly”; that,the session consisted of a minister and two, or more, ruling elders ; a presbytery consisted of all the ordained ministers and one ruling elder from each church within a given district; a synod consisted of all the ministers and one ruling elder from each church in a district comprising at least three presbyteries; while the general assembly was the highest court of the church and represented in one body all the particular churches and exercised jurisdiction over such matters as concerned the whole church, and was made up of commissioners chosen from the presbyteries; that the defendants in the bill were also members of the said Cumberland -Presbyterian Church and as such had been chosen as commissioners to the general assembly to meet at Decatur, Illinois, in May, 1906; that the said assembly so to meet at Decatur was the assembly and Decatur the place of meeting determined upon at the preceding meeting of the said general assembly held at Fresno, California, in 1905; that said assembly consisted of commissioners elected from their respective presbyteries ; that the powers of said general assembly were fixed by said constitution in sec. 43, which reads as follows:</p> <p>“43. The General Assembly shall have power to receive and decide all appeals, references, and complaints regularly brought before it from the inferior courts; to hear testimony against error in doctrine and immorality in practice, injuriously affecting the Church; to decide in all controversies respecting doctrine and discipline; to give its advice and instruction, in conformity with the government of the Church, in all cases submitted to it; to review the records of the Synods; to take care that the inferior courts observe the government of the Church; to redress whatever they may have done contrary to order; to concert measures for promoting the prosperity and enlargement of the Church; to create, divide, or dissolve Synods; to institute and superintend the agencies necessary in the general work of the Church; to appoint ministers to such labors as fall under its jurisdiction; to suppress schismatical contentions and disputations, according to the rules provided therefor; to receive under its jurisdiction other ecclesiastical bodies whose organization is conformed to the doctrine and order of this Church; to authorize Synods and Presbyteries to exercise similar power in receiving bodies suited to become constituents of those courts, and lying within their geographical bounds respectively; to superintend the affairs of the whole Church; to correspond with other Churches; and, in general, to recommend measures for the promotion of charity, truth, and holiness throughout all the Churches under its care.”</p> <p>It was further alleged in said bill that at the meeting of the general assembly held at Nashville, Tennessee, in 1903, a resolution was introduced and referred unanimously to the committee on overtures which provided that whereas there were before that body memorials praying the appointment of a committee to consider the advisability of a union of the Cumberland Presbyterian Church with the Presbyterian Church of the United States of America, which provided that there be appointed (and accordingly there was so appointed) a committee on Presbyterian Comity, Federation and Union, to consist of nine persons who shall do all in their power to promote closer organization and union of all branches of the Presbyterian family and report to the next general assembly; that said general assembly at Nashville, Tennessee, at its meeting in 1903, adopted a resolution that its committee of nine confer with such like committees as might be appointed by other Presbyterian bodies in regard to organization and union among members of the Presbyterian family.</p> <p>It was further alleged in the bill that at the general assembly held at Dallas, Texas, in 1904, such committee so appointed reported that without any previous agreement, there was a feeling in both the Cumberland Presbyterian Church and the Presbyterian Church of the United States of America, among individuals, presbyteries and synods, in favor of such movement after the publication of the action of the Presbyterian Church of the United States of America of its act of revision or declaratory statement of 1903; that expressions of a desire for union with the Presbyterian Church of the United States of America had been made by those in authority in the Cumberland Presbyterian Church in 1810, 1811, 1812, 1813, 1860, 1867,1873,1885 and 1888; that the revision or declaratory statement of 1903, made by the Presbyterian Church of the United States of America, had modified the declarations contained in the confession of faith as originally expressed and held by that Church, so the objections that had been before made to it by the Cumberland Presbyterian Church could no longer be successfully made; that in essentials the original confession of faith of the Presbyterian Church of the United States of America had been so far revised that it was the duty of the two churches to enter into a union; that this resolution was by unanimous vote made a special order of business, and a resolution adopted by a vote of 162 to 74 to submit the basis contained in the report of said committee, to the Presbyteries of the Cumberland Presbyterian Church in the usual constitutional manner, upon receiving official notification of the adoption of the said joint report by the general assembly of the Presbyterian Church of the United States of America; that said committee also further submitted a report upon such proposed union recommending that reunion or union of the two churches be accomplished' as soon as the necessary steps could be taken upon the basis that the United Church be known as. the Presbyterian Church of the United States of America, possessing all the legal and corporate rights and powers which the separate churches then possessed; that the union be effected on the doctrinal basis of the confession of faith of the Presbyterian Church of the United States of America as revised in 1903; that each of these assemblies should submit such basis of union to its presbyteries which should express their approval or disapproval thereof before April 30, 1905, in answer to the question, “Do you approve of the reunion and union of the Presbyterian Church of the United States of America and the Cumberland Presbyterian Church on the doctrinal basis of the confession of faith of the Presbyterian Church of the United States of America as revised in 1903, and of its other doctrinal and ecclesiastical standards?” that each presbytery should, by May 10, 1905, forward to the stated clerk of the assembly a statement of its vote on the said basis of union which should be submitted by such clerks to the general assemblies, and if the general assemblies should then find that the basis of union had been approved by the constitutional majority óf the presbyteries connected with each branch of the church, then the same would be of binding force and both assemblies should take action accordingly; that all the ministers and churches in the two denominations should be admitted to the same standing in the united church which they may have held in their respective connections up to the consummation of the reunion; that the official records of the two churches during their period of separation should be preserved and held as making up the history of one church; that the permanent committees and boards should be so reconstructed as to represent with impartiality the views and wishes of the two bodies constituting the reunited church; that the institutions of learning, together with their endowments and other property, both real and personal, under the control of the Cumberland Presbyterian Church, should remain in charge of and be controlled by the board of trustees or other managers respectively in charge thereof, or by their successors similarly appointed or elected, so as to preserve, the integrity of the institutions and maintain their then present policy.</p> <p>In said bill it was further alleged that at Fresno, California, at the general assembly in, 1905 of the Cumberland Presbyterian Church, there were submitted both a majority and minority report by the said committee on organic union; that the majority report stated that the special committee appointed to canvass the vote of the presbyteries upon the subject of union returned that sixty presbyteries had voted for approval of union of the two churches while fifty-one presbyteries had disapproved thereof, with two presbyteries not voting, in favor of the reunion and such majority report recommended that (whereas, the general assembly of each church had appointed a committee on reunion which said committees, after conferring together, had agreed upon a plan or basis of reunion and by joint report presented the same to their respective general assemblies in 1904, and had recommended adoption thereof, which had been adopted by the necessary vote, etc., in the Cumberland Presbyterian Church, and approved by the presbyteries in said church by a vote of sixty to fifty-one), a resolution be adopted to the effect that said reunion and union had been constitutionally agreed to by a majority of the presbyteries of the Cumberland Presbyterian Church and that the said basis of union had, for the purposes of the union, been constitutionally adopted; that at said meeting those in protest to said union offered a minority report in lieu of the majority report which minority report was defeated by a vote of 137 to 111; that upon the defeat of such minority report such general assembly at Fresno adopted a resolution adding nine new members to said committee on fraternity and union and instructed said committee so constituted (with its added members) to confer with the committee on co-operation and union of the Presbyterian Church of the United States of America with reference to adjusting details of union with the latter church.</p> <p>In said bill it was charged that all reports of such committees so adopted were all and each of them without authority, ultra vires and void; that the general assembly, synods and presbyteries had exceeded their authority under the constitution; that the basis of union between said two churches as suggested was upon a doctrinal basis of the confession of faith of the Presbyterian Church of the United States of America, as revised in 1903, whereas the general assembly of the Presbyterian Church of the United States of America at its session in 1904, declared that “the assembly in connection with this whole subject of union with the Cumberland Presbyterian Church places on record its judgment that the revision of the confession of faith, effected in 1903, has not impaired the integrity of the system of doctrine contained in the confession taught in the Scriptures; but was designed to remove misapprehension as ' to the interpretation thereof. ’ ’</p> <p>In said bill it was further alleged that the value of the property of the congregations of the Cumberland Presbyterian Church was over five million dollars, besides school arid publishing house property, worth about two million more; that there were nearly three thousand churches and congregations in the Cumberland Presbyterian Church; that said general assembly, acting by and through said committee on fraternity and union, was attempting and threatening to consummate the alleged illegal and unconstitutional merger and absorption of the said Cumberland Presbyterian Church with the Presbyterian Church of the United States of America and report their action in that regard to the general assembly of the Cumberland Presbyterian Church at Decatur, Illinois, and perfect such reunion unless restrained, etc.</p> <p>In said bill it was further alleged that the said property of the Cumberland Presbyterian Church, so valued at more than, seven millions of dollars, was during a period of ninety-five years given to said Cumberland JPresbyterian Church because of its particular teachings and doctrines, and was held in trust for the preaching and extending of the principles of faith and doctrines of the Cumberland Presbyterian Church and for no other purpose, and that to perfect such reunion would be a breach of the trust aforesaid.</p> <p>The bill prayed that the said action of the general assembly might be declared unconstitutional, ultra vires and void, and an injunction be awarded to prevent the consummation of such union with the Presbyterian Church of the United States of America.</p>

<p>Municipai. Court—when Appellate Court without jurisdiction of writ of error sued out to review. To review cases known under the Municipal Court Act as cases of the fourth class, writs of error must be sued out within thirty days after the entry of the final order or judgment complained of.</p>

Bill for injunction, etc. 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, 1906. Statement by the Court.

<p>Quo warranto. Appeal from the Superior Court of Cook county; the Hon. Axel Chttbatts, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.</p>

Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Abthub H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906. Statement by the Court. This is a suit brought by appellees to recover commissions for alleged services rendered as real estate brokers in securing a tenant for certain portions of a building owned by appellant.

Action commenced before justice of the peace. Appeal from the County Court of Cook county; the Hon. J. D. Welsh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Ghytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.</p>

<p>Judgment by confession. Appeal from the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.</p>