Volume 137 — Illinois Appellate Court Reports

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Washington county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1907.

Action in oase for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1907.

Exceptions td administrator’s report, etc. Appeal from the Circuit Court of Effingham county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1907.

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1907.

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holdek, Judge, presiding. Heard in this court at the February term, 1907.

<p>Action in case. Error to the Circuit Court of Effingham county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1907.</p>

<p>Action in case. Appeal from the Circuit Court of Washington county; the Hon. James E. Dunnegan, Judge, presiding. Heard in this court at the February term, 1907.</p>

<p>Bill of interpleader. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1907.</p>

<p>Action in case. Appeal from the City Court of Alton; the Hon. James E. Dunnegan, Judge, presiding. Heard in this court at the February term, 1907.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Randolph county; the Hon. Benjamix R. Burroughs, Judge, presiding. Heard in this court at the February term, 1907.

<p>Objection—when cannot he availed of. To be in position to avail of an objection or motion, one must insist upon a ruling and obtain it and except to the ruling; or he must insist upon a ruling, and if the court refuses to rule, then except to the action of the court in refusing to rule ®n his objection or his motion.</p>

Action in case for personal injuries. Appeal from tbe Circuit Court of Williamson county; the Hon. Warren W. Duncan, Judge, presiding. Heard in this court at the February term, 1907.

<p>Administration of estate—what' not presentation of claim so as to arrest running of statute. The making out of an account, swearing to it and presenting it to an administratrix out of court, does not arrest the running of the Statute of Limitations with respect to the rights of the heirs in the real estate.</p>

<p>Tenant in common—right of, to remedy by injunction. One owning no more than a one-tenth interest in land may maintain an action for injunction to prevent total dispossession from the estate.</p>

Action in case Sor death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. James A. Ckeighton, Judge, presiding. Heard in this court at the October term, 1906.

<p>Mechanics’ liens—section 11 of act construed. Under section 11 of the Mechanic’s Lien Act, a party instituting a mechanic’s lien proceeding has no vested right to dismiss his hill without prejudice.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in this court at the March term, 1907.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1907.

<p>Forcible entry and detainer. Appeal from the Circuit Court of Cook county; the Hon. Mnrritt W. Pinckney, Judge, presiding. Heard in this court at the October term, 1906.</p>

Criminal prosecution for obtaining money under false pretenses. Error to the Municipal Court of Chicago; the Hon. F. L. Fake, Jr., Judge, presiding. Heard in this court at the March term, 1907.

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in this court at the March- term, 1907.</p>

Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1907.

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hón. Theodore Beentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1906.</p>

Action in case for fraud and deceit. Appeal from the Superior Court of Cook county; the Hon. Abthtjb H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.

<p>1. Expert—when qualification of, sufficient. An expert witness upon the question as to within what time a motorman may reasonably be expected to stop an electric car with the proper application of sand, may qualify through an experience kindred to the handling of motor cars.</p> <p>2. Evidence—when admission of erroneous, upon question of damages will not reverse. The erroneous admission of evidence bearing upon the question of the amount of the damages to be awarded will not reverse if the verdict in amount is supported by other competent evidence.</p> <p>3. Conduct oe counsel—when will not reverse. Notwithstanding the conduct of counsel may be subject to the charge of gross impropriety, it will not reverse if prejudice does not appear to have resulted.</p>

<p>Action in case for personal Injuries. Appeal from the Superior Court of Cook county; the Hon. Albeet C. Baeiuss, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.</p>

<p>1. Receiver—when order requiring payment of money to, erroneous. It is error to require money to be paid to a receiver whose right thereto is not established, notwithstanding the party ordered to pay the same may not himself have any right thereto.</p> <p>2. Appeal—when lies from order requiring payment of money to receiver. An order which requires a party to pay money to a receiver is final and appealable.</p> <p>3. Contempt—what failure to pay money to receiver pursuant to order of court, does not constitute. It is not contempt of court to refuse to pay money to a receiver pursuant to order, unless the disobedience is wilful.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Linus C. Ruth, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1906.

<p>Bill for accounting. 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.</p>

Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in this court at the March term, 1907.

<p>Action of debt. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in this court at the March term, 1907.</p>

Action in case for personal injuries. Errbr to the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the March term, 1907.

<p>1. DEMrmWit—what ivaives error of court, in sustaining. Asking leave to amend a declaration waives any error in. tlie ruling of the court in sustaining a demurrer thereto.</p> <p>2. Oyer—of what instruments may be craved. Under the statute in this state, oyer may be craved as- well of those instruments not under, seal as of those instruments which are under seal.</p> <p>3. ' Oyer—effect of granting of. Oyer being granted and the instrument being read in obedience to that order, the legal effect is to make the instrument a part of the preceding pleading-, with like force and effect as if profert had been made of it by the plaintiff in the first instance.</p> <p>4. Negotiable instruments—when not assignable so as to enable maintenance of suit in name of assignee. The rule governing negotiable instruments, to make them negotiable under our statute or at common law, is that the instrument, draft, bill of exchange or promissory note must he payable unconditionally, and that any condition attached to payment destroys negotiability, and an assignment of an instrument so burdened does riot vest title in the assignee so as to enable such assignee to maintain an action In his own name.</p> <p>5. Negotiable instruments—what not strictly, so-called. A so-called draft, payable “on presentation of Certificate No. 32,004, issued by Knights and Ladies of Security to James Kane, properly released,” is not a negotiable instrument assignable under the statute, which will authorize suit in the name of the assignee.</p> <p>6. Forgery—duty to guard against. The duty to guard against forgery rests in the first instance upon the drawee of a draft.</p> <p>7. Forgery—upon whom loss resultant from, should fall. In cases involving a forgery, the loss must he borne by the party through whose means or negligence the fraud was made successful.</p> <p>8. Forgery—when bank not liable for loss resulting from. A bank receiving a draft for collection is not liable, where it turns over the proceeds of such draft to its customer, even though the indorsement which made the collection possible was a forgery.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in this court at the March term, 1907.</p>

Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the March term, 1907.

<p>Bill for cancellation of lease. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1907.</p>

<p>Bill for accounting, etc. Error to the Circuit, Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in this court at the March term, 1907.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richabd W. Clihtoed, Judge, presiding. Heard in this court at the March term, 1907.

<p>Licensee—duty of owner of premises to. The owner of land and buildings assumes. no duty as to one who is on his premises by permission only and as a mere licensee, except that he will refrain from wilful or affirmative acts which are injurious.</p>

<p>Assumpsit. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the March term, 1907.</p>

<p>1. Leave to amend—what not order granting. An order that “all papers and proceedings in said cause he amended by,” etc., is not an order granting leave to amend but is in itself an amendment.</p> <p>2. Notice—of what party hound to tahe. A party who has been served with process and who is in default is hound to take notice of all orders entered in the cause until the end of the term at which final judgment is entered against him.</p> <p>3. Amendment—when notice of, not essential. Notice of an amendment need not be given to a party who has been served and who is in default.</p>

<p>Action on the case. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, 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. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Homer Abbott, Judge, presiding. HeaTd in the Branch Appellate Court at the March term, 1907.</p>

<p>.Divorce. Error to the Superior Court of Cook county; the Hon. Axel Chytkatjs, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.</p>

<p>Action of debt upon bond. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.</p>

<p>Action of covenant. Appeal from the Superior Court of Cook county; the Hon. Axel Chyteatjs, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.</p>

<p>1. Homestead loan association—upon whom burden rests to prove usury. The burden of proving usury in a foreclosure proceeding instituted by a homestead loan association rests on the party interposing such a defense. Such proof must be confined to the loan in controversy, without regard to the conduct of the association in the making of any other loan not involved in the cause before the court.</p> <p>2. Homestead loan association—what member estopped to deny. In the absence of fraud, a member is estopped to deny the verity of the recitals in an application for loan, nor can a member escape the liability arising therefrom under a plea of failure to read the document or ascertain its contents before signing.</p> <p>3. Homestead loan association—what member estopped to deny. A member is estopped to deny the fact of being a stockholder at the time of obtaining a loan, where such member became a stockholder in order to effect a loan transaction and assigned to the association the stock then obtained.</p> <p>4. Homestead loan association—When law with regard to loaning money complied with. If an association offers money for loan in an open meeting, the statute is complied with, even though no bid other than the one accepted was made.</p> <p>5. Homestead loan association—what decree with respect to, binding upon members. A decree declaring an association insolvent and ordering the collection of all its outstanding loans, whether matured or not, whether in default or not, is binding upon member's, even though not parties to the proceeding in which it is' rendered.</p> <p>6. Homestead loan association—how accounting upon foreclosure of mortgage by insolvent should be made. A member should be first required to pay the principal sum borrowed, regardless of any payments made towards the maturing of the stock; then he becomes entitled, after the debts of the corporation are paid, to a pro rata dividend with the non-borrower for what he has paid upon his stock.</p>

<p>Insukahce—right of insured to change beneficiary. In fraternal benefit associations, tbe member whose life is insured bas the right to change the beneficiary named in the certificate, but in the ease of an ordinary life insurance policy such right does not exist, except as may be permitted by the terms of the policy, and then only upon substantial compliance with such terms. 11eld, in this case, which arose under an ordinary life policy, that a change of beneficiaries had not been effected.</p>

<p>Injunction—what essential to valid, issuance of, without notice. In order to grant an injunction without notice, either the bill or an affidavit must state facts from which the court can see that irreparable injury will ensue unless the injunctional order prayed is issued without notice.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1907.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Chytkaus, Judge, presiding. Heard in this court at the March term, 1907.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Aethtjb H. Feost, Judge, presiding. Heard in this court at the March term, 1907.

<p>Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the March term, 1907.</p>

Bill for injunction, etc. ^ Appeal from the Circuit Court of Cook county; the Hon. Juliají W. Maok, Judge, presiding. Heard in this court at the March term, 1907.

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the March term, 1907.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding. Heard in this court at the March term, 1907.</p>

<p>: 1. Former decision—limitation of rule as to, being law of a ease. The rule that a previous decision of the Appellate Court on legal propositions is the law of that case if it again reaches that court, cannot be extended to a case in which a different complainant is asserting for parties whom he makes defendants substantially the same rights that those parties were in a former case asserting against other parties made their co-defendants in the later one.</p> <p>2. Davis v. construction co., 126 Ill. app. 121—distinguished. In the present case however, conclusions of the Appellate Court are not contrary to the propositions laid down by the Branch Appellate Court in Davis v. Abstract Construction Company, 121 Ill. App. 121. Those propositions are only that no person has a legal right to compel the recorder of Cook county to permit him to make substantial copies of entire books in the recorder’s custody nor to expose books to his examination which show only judicial proceedings and tax-sales. They ■do not include the doctrine that a taxpayer has the right to prevent ’the recorder by injunction from allowing these copies to be taken or information obtained, or that such information is property of this county which a taxpayer can interfere to protect.</p> <p>3. County—what not property of, which recorder may be enjoined, from giving away. Abstract books and records of judicial sales, etc., are not property of the county which a taxpayer may by injunction restrain the recorder, having their custody, from permitting being copied for use in the business of abstract making, even though by permitting such copying the recorder is creating competition in a line of business performed by himself, from which the county may derive a profit.</p> <p>4. Equity—jurisdiction of, with respect to public officers. Courts of equity will not take jurisdiction, at the instance of a mere taxpayer, to govern the administration of public officers and offices in their routine detail.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.</p>

<p>1. Injunction—when bill for, sufficiently verified; when not. “Where the facts are positively affirmed, it is not necessary for affiant to state the source of his knowledge, and the affidavit will be-presumed to have been made on his personal knowledge, if the facts. are of such a character that he may have known them, and it does-not appear that he did not; but where it appears that affiant could have had no personal knowledge as to material allegations, the affidavit is defective.”</p> <p>2. Warehouse receipt—when negotiable. A warehouse receipt is negotiable where it recites that the merchandise therein referred to is held “subject to the order” of the bailee. Such a receipt is none the less negotiable if it provides for surrender of the merchandise upon “the payment of the purchase price,” etc.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Bbentaiío, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.

<p>1. Insurance—what contract of, as distinguished from undertaking of suretyship. Held, tkat the bond of the guaranty company given in this case was a contract of insurance as distinguished from one of suretyship.</p> <p>2. Insurance—definition of misrepresentation as applied to law of. A misrepresentation in insurance is defined to be “the statement of something as a fact which is untrue in fact and which the insured states, knowing it to be untrue, with the intent to deceive the insurers; or which he states positively as true without knowing it to be true and which has a tendency to mislead—such fact in either ease being material to the risk and adverse to the insurers.”</p> <p>3. Insurance—effect of misrepresentation. A misrepresentation, whether intentional or made through mistake and in good faith, avoids the policy.</p> <p>4. Insurance—by whom question of what material to risk determined. The parties to a contract of Insurance are entitled to determine for themselves what is or is not material to the risk.</p> <p>5. Insurance—what evidence does not conclusively show failure to examine cashier’s books. The fact that a false entry existed in a cashier’s book, and was not discovered, does not conclusively show a failure by the employer to have examined such books.</p> <p>6. Insurance—difference of construction between contract of, and contract of guaranty. A surety or guarantor is a favorite of the law and its contract is to be construed most liberally in its favor, but the converse is the case with respect to contracts of insurance.</p> <p>7. Insurance—what does not relieve casualty company from liability under contract of, made with respect to honesty of employes. It is no defense to a contract insuring an employer against the dishonesty of an employe to show that the dishonesty of such employe could have been avoided by the exercise of extraordinary and constant vigilance.</p> <p>8. Insurance—ivhat not new contract of. Held, that a new contract of insurance was not made by a renewal agreement which provides, among other things, that the company “hereby continues in force,” etc.</p>

<p>1. Writ of error—who may prosecute. A party in whose favor a decree has been rendered may prosecute a writ of error to reverse the same where it was rendered without jurisdiction.</p> <p>2. Notary public—what evidence of authority to administer oaths. It is only where the notary certifies under his official seal that he has authority to administer oaths under the statute of the state under which he holds his commission, that such certificate is prima facie evidence that he has such statutory authority.</p> <p>3. Service of process—when, by copy of bill, insufficient. Service by copy of bill is insufficient and does not establish jurisdiction where it appears that the affidavit of service was made before an officer who it does not appear was authorized to administer oaths in the place where the affidavit was made.</p> <p>4. Service of process—what essential to valid, by copy of bill. In serving process by copy, the return of the officer must show a strict compliance with the statute in order to confer upon the court jurisdiction of the person upon whom the service purports to have been made.</p> <p>5. Service of process—what does not aid insufficiency of. A recital of due service contained in a decree does not cure a defect of service appearing from the process papers contained in the record.</p> <p>6. Divorce—when desertion not established. Desertion, as a ground for divorce, cannot be established by the uncorroborated testimony of the plaintiff alone.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook comity; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in tile Branch Appellate Court at the March term, 1907.

<p>Action in case for death, caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Theodobe Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.</p>

Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.

<p>1. ' Mobtgage—what defenses available against assignee of. An assignee of a mortgage takes it subject to all the infirmities to which it is liable in the hands of the assignor.</p> <p>2. Mobtgage—when payments upon, made to assignor after assignment, may be shown as against assignee. Where the assignee of a mortgage has failed to notify the mortgagor of the acquisition of the mortgage, such mortgagor is entitled, in the absence of knowledge •of the transfer of the security, to show, as against the assignee,’ all payments made upon the mortgage, after the assignment, to the mortgagee.</p> <p>3. Fobe-closube—when improperly brought. A foreclosure proceeding cannot be maintained where nothing more was due under the mortgage sought to be foreclosed than an amount of interest thereon, which amount of interest had been duly tendered and refused.</p>

Action in ease for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Cbaig, Judge, presiding. Heard in this court at the May term, 1907.

Action commenced before justice of the peace. Appeal from the Circuit Court of Shelby county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1907.

<p>Replevin. Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding. Heard in this court at the May term, 1907.</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 May term, 1907.

Action in case for personal injuries. Appeal from the Circuit Court of DeWitt county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1907.

<p>Assumpsit. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1907.</p>

<p>1. Malice—when exclusion of evidence as to non-existence of, error. Where the declaration charged a malicious destruction and cutting of wires, it is error to exclude evidence offered for the purpose of showing that the defendant was impelled by no feeling of hatred, ill will or malice, and that in removing the wires in question he had no other object or purpose other than to carry out instructions which had been received by him from his superior.</p> <p>2. Evidence—when intention may he testified to. Where intent is of the essence of an offense, or is an important element constituting the defense, the defendant, in a case charging him with a crime or misdemeanor, has the right to testify to what his intention was in the commission of the act with which he is charged, leaving the credit which should be given to such testimony for the consideration of the jury.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1907.

Action in case for personal injuries. Appeal from the City Court of Canton; the Hon. P. W. Gallagheb, Judge, presiding. Heard in this court at the May term, 1907.

Action in case for personal injuries. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the May term, 1907.

<p>1. Husband and wife—right of latter to compensation for labor performed for former. There is no implied contract upon the part of a husband to compensate his wife for labor performed by her for him.</p> <p>2. Husband and wife—lohen conveyance between, valid as against creditor. A bill of sale made by a husband to his wife, supported by a sufficient consideration, delivered in good faith, is valid as against a creditor of the husband whose claim did not exist at the time of the transfer.</p> <p>3. Husband and wife—what not competent in attack upon conveyance between. In an attack upon a hill of sale made by a husband to his wife, it is not competent to show that the wife after the conveyance, established to have been made in good faith and upon sufficient consideration, had permitted her husband to mortgage the property so transferred, unless her act was such as to work an estoppel against her.</p> <p>4. Bru. of sale—how cannot be impeached. A bill of sale cannot be impeached by showing statements of the vendor made out of the presence of the vendee after the transfer had been completed.</p>

<p>Peremptory instruction—when should he given; when not. If there is but a scintilla of evidence tending to prove the material allegations of the declaration, the jury should be directed to return a verdict for the defendant. If there is in the record any evidence from which, if it stood alone, the jury might, without acting unreasonably, in the eye of the law, find that all the material allegations of the pleading have been proven, then the issue should be submitted to the jury.</p>

<p>Crops—when pass to executor. Crops growing upon land of a life tenant baying power to dispose of the fee by will, pass, upon tbe death of such tenant, to bis executor, and not to those upon whom the fee is cast.</p>

Action for malicious prosecution. Appeal from the Circuit Court of Macon county; the Hon. Willtam C. Johns, Judge, presiding. Heard in this court at the May term, 1907.

Prosecution for violation of ordinance. Appeal from the County Court of McLean county; the Hon. Rolland A. Russell, Judge, presiding. Heard in this court at the May term, 1907.

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

<p>Commissioners oe highways—when may ash aid of county for cost of construction of bridges. The commissioners of highways cannot ask aid from a county where the combined cost of two or more bridges in a township will exceed twenty cents on one hundred dollars of taxable property. It is only where one bridge of itself exceeds such sum that the commissioners may ask aid of the county.</p>

<p>Objections to appraisers’ estimate. Appeal from the Circuit Court of Fulton county; the Hon. John A. Gbay, Judge, presiding. Heard in this court at the May term, 1907.</p>

<p>Fiduciary relation—when exists as between priest and parishioner. Held, under the facts in this e.ase, that a fiduciary relation existed between a priest and a parishioner which raised a presumption of undue influence against a gift from the parishioner.</p>

<p>1. Parent and child—when implied contract does not arise' between. The relation existing between parent and child is of so intimate a character that the law never implies a contract to pay money either for support or services, and in the absence of an express promise to pay for the same no recovery can be bad by one against the other. This rule applies as between an adopted child and an adoptive parent.</p> <p>2. Parent and ciiild—when natural parent cannot recover from, adoptive parent for support of child. A natural parent cannot recover from an adoptive parent for the care and support of a child while in his own home and custody.</p>

<p>Assump'sit, Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1907.</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 May term, 1907.</p>

Action in ease for personal injuries. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1907.

<p>Assumpsit. Appeal from the Circuit Court of Coles county; the Hon. Mcotton W. Thompson, Judge, presiding. Heard in this court at the May term, 1907.</p>

<p>Fraudulent conveyance—when creditor may attach. A creditor whose claim has matured since °the conveyance alleged as fraudulent was made may, attack such conveyance if the contract upon which his debt and judgment are predicated was in existence at the time of such conveyance.</p>

<p>1. Homestead loan association—what transactions not usurious. Loans made by a homestead loan association, if made conformably to statute, are not usurious.</p> <p>2. Master in chancery—lohen findings of, will not he disturbed. Where there is nothing in the abstract to overcome a finding made by a master, such finding will be adopted by the court.</p> <p>3. Acknowledgmekts—legislative power to legalize. It is within the power of the legislature to legalize acknowledgments which but for such legalization would be void.</p>

<p>Action on the case. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1907.</p>

<p>1. Freehold—when involved for purpose of appeal. A freehold is involved, within the meaning of the constitution and statute, where the necessary result of the judgment is that one party gains and the other loses a freehold estate, or when the title is so put in issue by the pleadings that the determination of the case necessarily requires a decision of such issue.</p> <p>2. Freehold—when involved. A freehold is involved in a bill to construe a will where the question to be determined is as to whether one of the parties to the bill has or has not an estate for life in premises described.</p>

<p>Lien—what not agreement to waive. A provision as follows: "The completed worfc when offered to the company for acceptance shall be delivered free from any and all liens, claims or encumbrances of any description,” is not sufficiently precise and definite in its terms to constitute either an express or implied waiver, in any event, of the statutory right to assert and enforce a lien.</p>

<p>1. Conspiracy—what evidence establishes fraudulent. Held, that the evidence in this case did not establish duress but did establish the consummation of a fraudulent conspiracy.</p> <p>2. Principal and agent—when latter not authorized to cancel contract. Án agent authorized to negotiate a contract has no authority after its negotiation to consent to its cancellation.</p>

<p>Mechanic’s lien proceeding. Appeal from tbe Circuit Court of Vermilion county; tbe Hon. James W. Cbaig, Judge, presiding. Heard in this court at tbe May term, 1807.</p>

<p>Assumpsit. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in. this court at the May term, 1907.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1907.

<p>Ceoss-examination—when not unduly restricted. Where it appears that a party was upon cross-examination permitted to elicit all that was material to his side of the controversy, no objection of undue restriction can be successfully made.</p>

<p>1. Railroad—when not liable for injuries to real estate resulting from construction and operation. A railroad company is not liable for injuries resulting from construction and operation ■where it appears that the damages sustained by the plaintiff were no different in character or in kind than that which. were suffered by the public generally.</p> <p>2. Measure oe damages—in action for injury to real property by construction and operation of railroad. The true measure of damages in eases of this character is the difference in the market value of the property before the- construction of the railroad and its value after the construction thereof.</p> <p>3. Cross-examination—iohat, proper of expert testifying upon question of damages. It is entirely within the province of counsel to ascertain upon a cross-examination of witnesses who have testified to the damage inflicted upon real estate the elements which were considered by such witness in estimating the amount of damage testified to.</p> <p>4. Damages—what proper elements to be considered and What not proper to be considered in action for injury to real property resulting from construction and operation of railroad. Unsightliness arising from the construction of an embankment is not a proper element, but obstruction to view and of light and of air from such embankment are proper elements. Likewise damages resulting from smoke, cinders, vibration, etc.,, are proper elements to be taken into consideration.</p> <p>5. Jury—when may properly be permitted to view premises. In an action for damages arising from the construction and operation of a railroad, it is within the sound judicial discretion of the trial court to permit the jury to view the premises involved.</p>

<p>Assumpsit. Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the May term, 1907.</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 May term, 1907.

<p>Railroabs—duty of, to maintain sufficient division fences. The duty imposed by statute upon a railroad company to maintain sufficient fences on both sides of its track is an ever-present, continuing duty, and when it becomes necessary to rebuild or repair such fences the railroad company must see to it that the fences are rebuilt or repaired in such manner as not to interfere with their efficiency during the progress of the work.</p>

<p>1. Decree—when not disturbed as against the evidence. A decree will not be set aside as against the weight of the evidence unless the findings of the chancellor are palpably erroneous.</p> <p>2. Tender—effect of, by way of admission. A debtor by tendering a certain amount to his creditor must be held to admit every fact which the creditor would be required to prove to entitle him to a decree for the amount tendered.</p> <p>3. Solicitor’s fees—when amount of allowance will not be disturbed on review. An allowance of solicitor’s fees made by the trial court will not be disturbed on review unless clearly against the evidence.</p>

<p>Proceeding under Ejectment Act. Appeal' from, the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1907.</p>

Action to recover penalty for violation of ordinance. Appeal from the Circuit Court of Pulton county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the May term, 1907.

<p>1. Fraterna! benefit society—what not ultra vires. It is not ultra vires a fraternal benefit society to provide that its certificate after a period specified shall become incontestable.</p> <p>2. Fraternal benefit society—certificate containing incontestable clause construed. Held, that the contract of insurance involved in this case construed as a whole did not cover the death of a member by the use of intoxicating liquors or by the practice of any pernicious habit that obviously tends to shorten life, occurring within three years after the date of the certificate, but that after three years it was incontestable except for fraud.</p>

<p>Merchandise—when demand for delivery of, not unreasonable. Held, from the evidence in this case, that a city was not unreasonable in anticipating its necessities for coal covered by a contract of purchase and in demanding delivery. Held, further, that upon refusal to make such delivery, such city had the right to go into the open market and purchase the coal in question and charge against the vendor the difference between the price paid and the contract figure.</p>

<p>Assumpsit. Appeal from the Circuit Court of Edgar county; the Hon. Morton TV. Thompson, Judge, presiding. Heard in this court at the May term, 1907.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the May term, 1907.

<p>1. Demurrer—when error in sustaining, cannot be complained of. The sustaining of a demurrer to special pleas cannot be successfully complained of where the defense sought to be set up by such pleas was permitted to be' received under the general issue.</p> <p>2. Fbatebnai, benefit society—when action upon certificate not premature. The commencement of an action upon a fraternal benefit certificate less than ninety days after the filing of the proofs of loss contrary to the provisions of the certificate, is not premature where the society had disclaimed all liability.</p> <p>3. Fbatebnai benefit society—what benefits cannot be recovered under certificate. Where by the terms of a contract of insurance the filing with the society of a claim for disability is made a condition precedent to any benefits, no benefits for a disability continuing after the filing of such claim can "be recovered without proof of the finding of an additional claim therefor.</p> <p>4. Instructions—must not submit questions of law to jury. Instructions are erroneous which submit questions of law to the jury for their determination. Such errors, however, will not reverse where the questions of law so submitted were not in controversy upon the trial.</p>

<p>1. Witness—what interest does not disqualify. The fact of agency, uncoupled with financial interest in the result of the suit, will not disqualify a witness where the adverse party sues or defends in a representative capacity.</p> <p>2. Witness—when disqualified by virtue of interest. A party having a direct financial interest in the result of a suit is imcompetent where the adverse party sues or defends in a representative capacity.</p>

<p>1. Fraud, accident ok mistake—what essential to relief on ground of mistake. Mistake of fact is a recognized ground of equity jurisdiction, but in order that relief may be afforded on that ground it must appear that the mistake was not due to the negligence of the party asking relief,—that is, that it was not such a mistake as the exercise of reasonable diligence would not have prevented.</p> <p>2. Pleading—what allegations not considered. The allegations of a bill in chancery which are mere legal conclusions will not be considered by the courts.</p>