Volume 142 — Illinois Appellate Court Reports

<p>1. Negligence—what not, as a matter of law. There is no negligence, as a matter of law, in ordering a laborer to pass or throw timbers down by hand from a gallery to the floor below.</p> <p>2. Master and servant—what methods of work may he adopted. A master is not required to adopt the least hazardous method of performing his work; he may pursue any method which is reasonably safe.</p> <p>3. Statute of Limitations—when declaration states new cause of action. A new cause of action is stated in an amended declaration which charges negligence in directing work to be done in a hazardous place, while the original declaration merely charged negligence in ordering the work to be done in an unsafe way.</p>

<p>1. Contracts—when transactions contrary to public policy not absolutely void. Transactions which are absolutely void for some purposes may he binding and effectual for ail other purposes.</p> <p>2. Decrees—upon what must be predicated. A decree which undertakes to adjust equities between the parties to litigation is erroneous if no pleading exists upon which such equities may he adjusted.</p> <p>- 3. . Corporations—when vote cannot be predicated upon stodc. The transferee of stock who has received the same in violation of the public policy of the state cannot after the illegal transfer has been adjudicated vote such stock, nor can such stock be voted by the assignor of the same until such time as the sale by him has been set aside. (Dunbar v. American Telephone Co., 224 Ill. 9, interpreted.)</p> <p>4. Corporations—how vote of stoolc must Be made. It being provided by resolution that voting at a corporate election shall be by written ballot, one who seeks to question the legality of the result declared because of the failure to count his vote, must show that he voted by written ballot.</p>

<p>1. Partnership—presumption as to correctness of boolcs of account. While the presumption obtains as between partners that firm books are correct, such presumption is one which may he rebutted by proof.</p> <p>2. Partnership—what error in stating account. In stating an account between partners it is error for a master to fix an arbitrary date as a starting point in the absence of evidence that there had been, at that time, a settlement between the partners.</p> <p>3. Pabtkebship—when accounting will not be awarded. If the hooks of account are admittedly inaccurate and in a state of contusion which precludes the reaching of a reasonably correct conclusion, the bill in such case will he dismissed.</p> <p>4. Pabtkebship—when boolcs not admissible upon accounting. To entitle firm hooks to be admitted upon the statement of an account between the partners, it must appear that the entries contained therein are contemporaneous with the transactions recorded.</p>

<p>Action in case. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Executions-who disqualified from executing. An officer having a vested interest in an execution is thereby disqualified from executing it.</p> <p>2. Official bonds-what no defense to action upon constable’s bond. An agreement by which a constable is to receive a commission in excess of the amount allowed by statute does not constitute a defense which may be urged by his sureties to an action upon the bond, of such constable for failure to turn over the proceeds of the amount collected under such execution.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Albert H. Frost, Judge, presiding.

<p>Assumpsit. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>1. Appeals and ebrobs-when rulings upon evidence should be substantially accurate. Where the case is close, the rulings upon evidence should he substantially accurate or a reversal will follow.</p> <p>2. Evidence-when objection must be specific to justify exclusion of question. It is error to exclude a proper and important question upon re-cross examination merely upon a general objection.</p> <p>3. Evidence-what competent upon question of injury. Held, ■error to strike out an answer as follows: “He appeared all right” made to a question as follows, “And what was his appearance then," “then” referring to a time about a half hour after the accident complained of.</p> <p>4. Evidence-effect of talhing through interpreter. If a party has talked to another through an interpreter, he thereby constitutes such interpreter his agent, and what he has said through such interpreter may be given in evidence by the person to whom the interpreter has at the time made communication.</p> <p>5. Evidence-what essential to render exclusion of, prejudicial. In order to make the exclusion of evidence prejudicial, an offer of proof should be made, showing the pertinency and importance of the evidence excluded.</p> <p>6. Evidence-right to ash injured party for examination. It is error to deny to a defendant sued for a personal injury the right to ask the plaintiff upon the stand for an opportunity to make examination of his injuries.</p>

<p>1. Evidence—when proof as to usual and customary real estate commission proper. If a specific sum is claimed to have been agreed upon as a commission to be paid a broker for his services, proof of the usual and customary charge, which is more than the specific amount so claimed, is competent.</p> <p>2. Trustees—when entitled to compensation. A trustee is entitled to compensation where he renders his services in the expectation of payment, such expectation being known to and coincided in by the principals; no absolute agreement to pay a specific amount is essential to his right of recovery.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.

<p>Common cabbiebs—obligation with respect to reconsigning orders. A carrier accepting a shipment to a point on its own line, in the absence of a special promise or a universally recognized custom, is not bound to obey a reconsigning order directing the delivery of the merchandise in carriage to another road with which it makes physical connection at the consigned point, such a reconsigning order involving either the sending of its own cars beyond its line or the unloading and reloading of such merchandise.</p>

<p>Contract—particular instrument construed as one of employment. Held, that the contract set forth in the opinion in this case was one of employment providing a fixed salary and expenses during a specified period rather than one merely of bargain and sale of merchandise.</p>

<p>Mandamus. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tothill, Judge, presiding.</p>

<p>1. Real property-what justification for refusal to perform contract to purchase. Inability of the vendor to convey a good title justifies a refusal by the vendee to carry out his contract to purchase. A good title cannot be conveyed if a doubt exists so as to make it probable that the purchaser’s rights may be a matter of legal investigation, or if the title depends upon facts which can only be established by parol evidence should the title be attacked, and the purchaser will not in general be compelled to complete the purchase.</p> <p>2. Instructions-when errors will not reverse. Errors in instructions which do not result in harm are not ground for reversal.</p>

<p>Evidence-what not part of res gestae. A statement by the plaintiff that the conductor “said that he caught my foot with his handle raising the lever and pulled me off; that is just what he said,” is not competent as part of the res gestae, even though made within a minute after the accident complained of.</p> <p>Reporters’ Note. The Doctbine of Res Gestae.</p> <p>The test applied as to whether a declaration, is part of the res gestae is: Does it illustrate, explain, or interpret other parts of the transaction of which it is itself a part, or is it merely the history of a completed, past transaction? O. & M. Ry. Co. v. Cullison, 40 Ill. App. 67; Lamb v. Kerrens-Donnewald Coal Co., 140 Ill. App. 195; C. & E. I. R. R. Co. v. Chancellor, 165 Ill. 438; City of Chicago v. McKechney, 205 Ill. 372; Chicago City Ry. Co. v. Uhter, 212 Ill. 174. But concurrence in time alone, nor separation in time alone, is not the test. Lamb v. Kerrens-Donnewald Coal Co., supra; Chi. Union Traction Co. v. Brethauer, 125 Ill. App. 204 (aff. 223 Ill. 521). In fact, there is no inflexible rule fixing the time within which a statement must be made to make it part of the res gestae; if the exclamations of pain and the statements of the injured party explaining and characterizing the manner in which the accident occurred, are substantially concurrent with the shock occasioned by the collision, and there is no time for deliberate fabrication, they are part of the res gestae. East St. Louis, etc. Ry. Co. v. Allen, 54 Ill. App. 27; Muren, etc. Co. v. Howell, 107 Ill. App. 1 (affl. 217 Ill. 190). In Pennsylvania Co. v. McCaffrey, 173 Ill. 169, cited in the opinion, it was said that a declaration made before or after the accident is not part of the res gestae, although the interval of separation is very brief. Elguth v. Grueszka, 57 Ill. App. 193; Chi. Union Traction Co. v. Lowenrosen, 125 Ill. App. 194 (affl. 222 Ill. 506). Indeed, a declaration made a minute or more after the transaction in question is inadmissible. Boyd v. W. Chi. St. Ry. Co., 112 Ill. App. 50. So declarations of the injured person made hours after his injury, as to its cause, are not part of the res gestae. Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625. A conversation had with the foreman under whom deceased worked, about a week after the death of deceased, and a conversation with the foreman before the injury which caused the death occurred, are not a part of the res gestae. Swift & Co. v. Griffin, 109 Ill. App. 414. A declaration of a fellow-servant of the plaintiff, subsequent to the injury, that he was responsible therefor, is not admissible as part of the res gestae. Hellmuth v. Katschke, 35 Ill. App. 21. A statement by the plaintiff in the presence of a conductor, just after the injury, in answer to the question how the accident happened, that “he (meaning the conductor) let me fall,” is not admissible as part of the res gestae. C., B. & Q. R. R. Co. v. Johnson, 36 Ill. App. 564. In an action for causing the death of a person, statements of the deceased as to the manner in which he received his injury and the cause of it, made after the injury was received, with consciousness of impending death, are not admissible on such ground. C. & N. W. Ry. Co. v. Howard, 6 Ill. App. 569. Declarations of an agent are admissible only when part of the res gestae, or when they accompany and are a part of the act performed on behalf of the principal, within the scope of his agency. W. St. L. & P. Ry. Co. v. Fenton, 12 Ill. App. 417; McCarthy v. Muir, 50 Ill. App. 510; East St. Louis, etc. Ry. Co. v. Allen, 54 Ill. App. 27; D. & H. Canal Co. v. Mitchell, 92 Ill. App. 577; C. & E. I. R. R. Co. v. Keegan, 112 Ill. App. 338. Admissions by a conductor of a train made after the accident occurred, are inadmissible. H. & St. J. R. R. Co. v. Martin, 11 Ill. App. 386; C. & A. Ry. Co. v. Fietsam, 19 Ill. App. 551; Gould v. Aurora, Elgin & Chicago Ry. Co., 141 Ill. App. 344. However, declarations made at the time of the accident are admissible. East St. Louis Ry. Co. v. Allen, supra; Muren Coal & Ice Co. v. Howell, 217 Ill. 190; Springfield Consolidated Ry. Co. v. Hoeffner, 175 Ill. 634. On this principle, in an action of unlawful ejectment from a street car, all that was said and done by the conductor in making such ejection is competent as part of the res gestae. Chi. Union Traction Co. v. McClevey, 126 Ill. App. 21; Chi. Union Traction Co. v. Brethauer, 223 Ill. 521; and generally whatever took place at the car where the accident occurred is part of the res gestae and properly admitted in evidence (E. St. L. Ry. Co. v. Burns, 77 Ill. App. 529), although it may appear that other persons than the plaintiff were injured. West Chicago St. Ry. Co. v. Kennelly, 170 Ill. 508; Galena & Chicago R. R. .Co. v. Fay, 16 Ill. 558. A motorman’s treatment of a sign of danger and his remark in connection therewith made almost contemporaneous with the accident, are parts of the res gestae. Chi. City Ry. Co. v. McDonough, 221 Ill. 69. In an action by a party injured in a collision, declarations of the conductor, in charge of the train as to the precautions he had taken to guard against the danger of collision, and made on the eve thereof, are admissible as part of the res gestae. C. & E. R. R. Co. v. Holland, 122 Ill. 461. The action of the court in admitting statements of the driver of a street car just after the car was stopped and while the plaintiff was under it, is supportable under the doctrine of res gestae. Quincy Horse Ry. Co. v. Gnuse, 137 Ill. 264. But it seems the statement in the last cited case was one showing the driver was then drunk and not a statement of anything which had before happened, for see Elguth v. Grueszka, supra. Declarations of pain and suffering are competent only when part of the res gestae or when made to the physician during treatment or an examination prior, thereto and without reference to the bringing of an action for the recovery of damages for the injury, unless the examination should be made at the instance of the defendant with a view to a trial. I. C. R. R. Co. v. Sutton, 42 Ill. 438; Chicago City Ry. Co. v. Mauger, 128 App. 512; West Chicago St. Ry. Co. v. Kennelly, supra; Lake St. El. Ry. Co. v. Shaw, 203 Ill. 39; Chicago City Ry. Co. v. Bundy, 210 Ill. 39; Greinke v. C. C. Ry. Co., 234 Ill. 564. A statement made to a physician with a view to enabling him. to become a witness, is inadmissible. Thus, a statement made shortly before the trial: “She tells me she suffers pain,” is inadmissible. Bates Machine Co. v. Crowley, 115 Ill. App. 540; West Chi. St. R. R. Co. v. Carr, 170 Ill. 478; City of Chicago v. McNally, 227 Ill. 14; Chi. Union Traction Co. v. Giese, 229 Ill. 260; Shaughnessy v. Holt, 236 Ill. 485. On the other hand statements of the plaintiff made to a physician, describing her condition during actual treatment, and in direct connection therewith, are admissible. Chi. City Ry. Co. v. Bundy, 210 Ill. 39. But declarations by the plaintiff to a physician made three years after the injury, and while not under such physician’s care, are inadmissible. City of Aurora v. Plummer, 122 App. 143; C. & E. I. R. R. Co. v. Donworth, 203 Ill. 192. Groans and exclamations of the injured party are not part of the res gestae and are incompetent. Donnelly v. Chi. City Ry. Co., 131 Ill. App. 302. Declarations made by the injured person to his attending physician are admissible when they relate to the injured part of his body, his sufferings, symptoms and the like, but not if they relate to the cause of his injury. Globe Accident Ins. Co. v. Gerisch, supra.</p>

<p>Action in case for personal injuries. Appeals from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Judian W. Mack, Judge, presiding.</p>

<p>Civn, Service Act-to what does not apply. The head of a principal department of the government of a city which has adopted the Civil Service Act is exempt from the provisions thereof, even though such principal department and the office designated as its head were created after the adoption of such act. People v. Kipley, 171 Ill. 44, distinguished.</p>

<p>Action commenced before justice of the peace. Error to the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.</p>

<p>1. Appeals and ebbors-when motion to dismiss not essential to raising of jurisdictional question. If a freehold is involved, the Appellate Court will dismiss an appeal notwithstanding no motion to dismiss has been interposed.</p> <p>2. Appeals and ebrobs—definition of freehold as used in statute defining jurisdiction of the appellate tribunals. The word “freehold” in the statute relating to appeals and writs of error is used in the sense as defined by the common law. It does not include a mere right to that which in equity will entitle a party to a freehold.</p> <p>3. Appeals and errors—when freehold not involved. Held, that a freehold was not involved in a proceeding in equity by one telephone company against another, to prevent interference with wires strung upon poles, the relation of the parties being that of licensees mutually to use the poles of each other for stringing wires, which wires were to remain the property of the party installing the same.</p> <p>4. Injunctions—when relief against breach of contract will not be granted. If the relief sought by injunction amounts to a negative specific performance of a contract, it will be denied where the terms of such contract are indefinite and uncertain; likewise, it will be denied if such contract is not proven with that degree of satisfaction which the law requires.</p> <p>5. Statute of frauds—when agreement within provisions. Held, that the agreement involved in this case, namely, one to utilize telephone poles, etc., was indefinite, uncertain, and being oral in character was within the Statute of Frauds.</p> <p>6. Contracts—when parol license revocable at will. Held, that a (parol license to use telephone poles, etc., which did not include a grant for a specific period was revocable at the will of the licensor.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding.

<p>Assumpsit. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grieb, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding.</p>

<p>1. Passenger and carrier—when presumption of negligence not rebutted. In an action by a passenger against a carrier where it appeared that the car of the carrier ran off the track at a curve in the road, held, that the evidence did not rebut the presumption of negligence which arose from the proof of the manner of the accident.</p> <p>2. Evidence—as to what expert testimony may be given. A witness having duly qualified may properly testify to pertinent questions concerning the effect of the application of brakes to cars, the effect of the reversal of the power and the proper manner of operating a car approaching a curve.</p> <p>3. Practice—when newly discovered evidence not ground for new trial. It is negligence to rely upon the supposed truthfulness of the adverse party and to proceed to trial expecting to establish certain facts by his testimony, and newly discovered evidence pertaining to facts which tend to contradict the testimony of such adverse party in the respect in question, is not ground for a new trial.</p> <p>4. Instructions—when refusal of correct, not ground for reversal. The refusal of a correct instruction is not ground for reversal where its substance is contained in another instruction given.</p> <p>5. Verdict—when excessive. A verdict of $4750 rendered in an action on the .case for personal injuries is excessive where the injury was mainly to the eyesight of the plaintiff, it appearing that such eyesight, previous to the injury, was to an extent, impaired.</p>

<p>1. Appellate courts—when without jurisdiction. The appellate courts of this state are without jurisdiction of appeals wherein the constitutionality of a statute is raised.</p> <p>2. Appeals and ekbobs—what not final judgment. An order setting aside a decree for a divorce made within the term of entry is not a final order from which an appeal lies.</p> <p>3. Evidence—when party cannot complain of admission of incompetent testimony. A party cannot complain of the admission of incompetent testimony which he has himself offered. '</p> <p>4. Decree—when may he set aside. A court entering a decree of divorce has jurisdiction during the term of entry to set aside such decree.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibble, Judge, presiding.

<p>1. Landlord and tenant-when clause of lease mere nudum pactum. A provision in a lease as follows: “No other repairs except as hereafter mutually agreed upon” is a mere nudum pactum.</p> <p>2. Tendee-when insufficient. Held, that the tender made in this case in a justice court was insufficient and was not kept good.</p>

<p>Objections to executors’ report. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>1. Chancery-when reference to master necessary. In the absence of an agreement, reference to a master to state an account is essential to regular procedure in a foreclosure proceeding.</p> <p>2. Interest-at what rate should he. allowed. The court must allow interest at the rate provided for in a contract unless such rate is usurious.</p> <p>3. Statute oe Limitations-what tolls running of. Payments made and indorsed upon a note operate to toll the running of the statute and to start the same afresh from the date of the last payment.</p> <p>4. Evidence-effect of failing to produce. A party who takes a paper pertaining to a transaction in issue from the files of a court without leaving a copy thereof and who fails to produce the same on notice, thereby furnishes strong presumptions that such paper, if produced; would he prejudicial to his defense.</p>

Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.

<p>Separate maintenance. Error to the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Lake county; the Hon. Chables H. Dokweixy, Judge, presiding.</p>

<p>Assumpsit. Appeal from the County Court of Rock Island county; the Hon. R. W. Olmstead, Judge, presiding.</p>

<p>1. Contracts—when contract price not agreed upon. The price to be paid for services rendered pursuant to a parol contract is not agreed upon or fixed where the same had been stated in an advertisement, which advertisement it does not appear was seen by the party sought to be charged.</p> <p>2. Appeals and errors'—when rulings upon the evidence not subject to review. ' The ruling of the trial court with respect to evidence is not subject to review in the absence of a bill of exceptions showing a motion for a new trial, the overruling thereof by the court and an exception to such action of the court by the complaining party.</p>

<p>Distress for rent. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>Attachment. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Livingston county;' the Hon. Geobge W. Patton, Judge, presiding.</p>

<p>1. Evidence—when testimony of wife incompetent. A wife is incompetent as to statements and confessions made to her by her husband, and such incompetency continues after his death.</p> <p>2. Evidence—when testimony of wife competent. In an action upon an insurance policy, the wife of the deceased insured is competent to testify to a conversation with a beneficiary named in the certificate; also, such wife is competent as to facts learned during the existence of the marital relation in ways other than by conversations with or admissions by her husband—the suit being one to which neither she nor the estate of her husband is a party.</p> <p>3. Insubance—phrase “sound body, mind and health,” defined. Held, that the following instruction correctly defined the phrase “sound body, mind and health.”</p> <p>“The court instructs the jury that the words ‘sound body, mind and health, and free from disease or injury,’ as used in the application which forms part of said policy, does not import that the insured at the time of making said application is absolutely free from all infirmities, or from all tendency to disease, but that the person said to be of sound body, mind, and health and free from disease or injury, is in á reasonably good or sound state of physical and mental health, and that he is free from any disease or illness that tends seriously or permanently to weaken or impair his constitution.</p> <p>4. Amendments and jeofails—what essential to amendment of record after lapse of term. In order to amend a record after the lapse of the term, it is essential that there be some official or quasi-official note, .memorandum or memorial paper remaining in the files of the case or upon the records of the court upon which such amendment may be predicated; such an amendment cannot be based upon the recollection of the judge or other person, or be based upon ex parte affidavits or testimony.</p>

<p>1. Practice-when propositions of law need not he presented. In a certiorari proceeding, which is tried before the court and with respect to which a jury trial cannot he had, propositions of law need not he presented in order to preserve for review questions of law.</p> <p>2. Conveyances-presumption as to date of delivery of deed. In the absence of evidence to the contrary, the presumption is that a deed was delivered on the day of its date, and this presumption prevails notwithstanding the instrument was acknowledged at a later date; nor does the fact that final acceptance of such deed by-commissioners of highways took place at a time later than such date rehut the presumption.</p> <p>3. Commissioners oe highways-when do not lose jurisdiction of petition. Where a settlement is in fact made within ten days of the date of the order laying out a new road, and condemnation of such lands so to be taken is thereby obviated, the commissioners are not ousted of jurisdiction of the subject-matter because their records fail to show a record of such settlement made within ten days of the date of the order to lay out the road.</p>

<p>Contested claim in court of prohate. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Judgment by confession. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stouqh, Judge, presiding.</p>

<p>Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly so.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>Trespass on the case. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooter, Judge, presiding.</p>

<p>1. Instructions-must not ignore material evidence. An instruction is erroneous which ignores material evidence in the cause.</p> <p>2. Parent and child-what does not establish liability of former for merchandise delivered to latter. The payment of one account without protest does not render a parent making the same liable for subsequent purchases made by his minor child, in the absence of proof that such purchases were for necessaries.</p>

<p>1. Practice—section 18 of Practice Act of 1907 construed. This provision has no application to cases wherein the pleadings were settled prior to July 1, 1907.</p> <p>2. Negotiable instruments—what not promissory notes. Held, that the instruments, copies of which are set forth in the opinion, are not negotiable promissory notes, but that the same are mutual contracts.</p>

<p>Action in case for personal injuries. ' Appeal from the Circuit Court of Mercer county; the Hon. William H. Gest, Judge, presiding.</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>1. Verdicts—what does not fail to show preponderance of evidence. Where there are only two witnesses and they contradict each other directly as to vital facts, it does not 'necessarily follow that there is no preponderance of the evidence for the plaintiff.</p> <p>2. Instructions—how ambiguity may be cured. An ambiguous instruction may be cured by another instruction which makes the ambiguous element clear.</p> <p>3. Instructions'—when upon weighing of evidence properly refused. Held, that the following instruction, upon the subject of the weighing of the evidence by the jury, was properly refused:</p> <p>“The court instructs the jury that you are to look at the evidence in this case in a common sense light, and to judge it by that experience and observation of human affairs of which you are possessed as individual members of society, and will endeavor to arrive at the truth as the evidence shows it to be. If the claim made by either party is unusual, unreasonable and unnatural, out of the ordinary course of affairs, you are not required to take the same for granted upon slight evidence; nor should you so find, except upon proof of a reasonable character and which satisfies the mind.”</p> <p>4. Contracts—effect of clause “the receipt whereof is hereby acknowledged,” in sealed instrument. The words, “the receipt whereof is hereby acknowledged,” appearing in an instrument, though under seal and acknowledged, are, in effect, nothing more than a receipt and have no greater effect than a receipt not under seal.</p>

<p>Estoppel—when arises to prevent assertion of title. Where the owner of property allows another to appear as the owner thereof, and innocent persons are thus led into dealing with such apparent owner, they will he protected. By such act a real owner is precluded from disputing, as against them, the existence of the title which he suffered to he vested in the party dealing with them.</p>

<p>Action in case for. personal injuries. Appeal from the Circuit Court of Will county; the Hon Frank L. Hooper, Judge, presiding.</p>

<p>1. Verdicts-when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Evidence-when unresponsive answer not ground for reversal. An answer not responsive to a question, however improper such answer may in fact be, cannot be successfully urged as error where no motion was made to strike it out.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Aíbebt O. Mabshaxl, Judge, presiding.</p>

<p>1. Contracts-when parol evidence competent to show true meaning of. If before a contract is made and while the parties are in’the act of arranging its terms, particular words are agreed upon as having a particular meaning, then parol evidence is competent to show the true intent and undertaking of the parties.</p> <p>2. Evidence-burden of proof to show payment. The burden of proof to establish payment in full or upon account, is upon the defendant.</p>

<p>Bill in equity. Appeal from the Circuit Court of DeKalb county; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>1. Statute of Limitations—when loss clause of insurance policy not sufficient to prevent running of. The fact that an insurance policy issued to a mortgagor contains a loss clause in favor of his mortgagee, against whom the Statute of Limitations has been invoked in foreclosure proceedings, does not prevent the operation of such statute, in the absence of proof of knowledge on the part of such mortgagor that the policy in question had been so made payable.</p> <p>2. Statute of Limitations—when does not bar foreclosure, notwithstanding debt secured is barred. The mortgage of several parties may be foreclosed as to all .of such parties, notwithstanding the note secured bjj the same is barred as to one of the makers, if the same has been kept alive as to the other by payments made by him.</p> <p>3. Evidence—when question of competency of witnesses cannot be raised. Parties cannot permit witnesses to testify in the apparent hope of gaining an advantage, and then, for the first time upon appeal, question their competency.</p> <p>4. Evidence—when objection not sufficient to raise question of competency. A general objection as to the competency of a witness participated in by all defendants to a cause, is not sufficient to raise the question of the competency of such witness as against one of such defendants if the evidence of such witness be competent as to any of such objecting defendants.</p> <p>5. Findings oe fact—when, by chancellor will not be disturbed. The findings of fact by a chancellor will not be disturbed even though findings of fact by a chancellor will not be disturbed even though he has admitted the evidence of an incompetent witness if there is sufficient competent evidence in the record, to sustain the findings made.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.</p>

<p>Action for malicious prosecution. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Wobtiiington, Judge, presiding.

<p>1. Custody of child—test of determining. The paramount consideration in determining the question as to whom shall receive the custody of a child, is the best interest of that child.</p> <p>2. Appeals and ebbobs—what not considered on review. Statements of changed conditions since the making up of the record, being without the record, cannot be considered on review.</p>

<p>1. Contracts—what violation of obligation to foeep boolcs of account. Held, under the evidence of this case, that the provision of a royalty mining contract requiring the lessees to keep correct books of account, was not fulfilled.</p> <p>2. Contracts-—effect of absence of specification in notice of cancelation. It is not material that a notice to cancel fails to specify the particular ground for cancelation, if such ground exists and there has been no waiver thereof.</p> <p>3. Forcible entry and detainee—when entry without process lawful. Under a contract permitting re-entry upon land in the event of default without process of law, a re-entry, pursuant to such a default, is proper and restoration of the premises entered upon cannot be obtained by action of forcible entry and detainer, no force being used in making the re-entry.</p> <p>4. Notice—effect of giving, upon right of re-entry. The giving of a ten-days’ notice to quit does not affect the right immediately to re-enter, pursuant to a contract provision authorizing re-entry without notice.</p>

<p>1. Verdict—when disturbed as excessive. A verdict which is excessive according to the clear preponderance of the evidence will be set aside on review.</p> <p>2. Mechanic's liens—when attorney’s fees should not be awarded. Held, under the facts of this case, that attorney’s fees should not be allowed pursuant to the Mechanic’s Lien Act.</p>

<p>Trespass on the case. Error to the Circuit Court of La Salle county; the Hon. Edgab Eldkedge, Judge, presiding.</p>

<p>Appeals and ebrobs-when franchise involved. A franchise is involved in an appeal to determine the propriety of a judgment in an action of quo warranto ousting a drainage district and drainage commissioners from the exercise of corporate powers, etc.</p>

<p>1. Landlord and tenant—when execution of lease 6y corporation sufficient. In an action for the recovery of arrears of rent accruing during occupancy, a lease signed by two of the three directors of a corporation plaintiff is competent where it is apparent that such directors signed for the purpose of binding the corporation.</p> <p>2. Pleading—what plea in lar. While a plea that there is no such corporation as the defendant named is in abatement and cannot be tried at the same time with a plea in bar, yet a plea denying that the plaintiff is a corporation is a plea in bar.</p> <p>3. Corporations—when question of forfeiture of charter will not le collaterally considered. In an action for rent by a corporation the question as to whether its charter has been forfeited will not be considered.</p> <p>4. Corporations—when estoppel to deny corporate existence arises. A party who has dealt with a corporation as an existing corporation and has received and used its property under an agreement with it, cannot, in a suit to collect the stipulated sum, be permitted to deny the corporate existence of such corporation.</p> <p>5. Corporations—effect of cancelation of charter ly secretary of state. The cancelation which -the statute authorizes the secretary of state to enter upon his records in case the corporation fails to make its annual report, is not an absolute forfeiture of the charter but is merely prima facie evidence of non-user of which the public, can avail in a direct proceeding to oust the corporation of its franchise.</p> <p>6. Instructions—when peremptory should not le given. If the evidence introduced in behalf of the party against whom a peremptory instruction is asked, with the legitimate inferences to be drawn therefrom, fairly tends to support the cause of action or the defense of such party, the weight and sufficiency of such evidence and the question where the preponderance lies, must be submitted to the jury, even though the court should be of the opinion that the weight was on the side of the party asking the instruction.</p>

<p>Action on the case. Appeal from the Circuit Court of Livingston county; the Hon. Geokgb W. Patton, Judge, presiding.</p>

<p>1. Administbation of estates—what does not bar sale of homestead to pay debts. A great lapse of time between the allowance of a claim and the application to sell does not of itself bar the right to have a homestead sold to pay such claim after allowance.</p> <p>2. Admiotstbatioit of estates—when filing of just and true account not essential to sale of real estate to pay debts. If it has been shown by the administrator that the personal estate has been exhausted, a just and true account need not be filed.</p> <p>3. Administbation of estates—when widow’s award does not bear interest. At least, until the widow has elected to take her award or the balance due thereon in cash, such award or such balance does not bear interest.</p>

<p>1. Appeals and ebbobs-when assignment of error deemed waived. An assignment of error not argued is deemed waived.</p> <p>2. Pebsonal injtjeies-liability for, by reason of employment of child under age of 11¡. at prohibited employment. One who contrary to the statute employes a child under 14 years at a prohibited employment is liable for resulting injury even though such child was working at a machine either in disobedience to orders or without any direction to work there.</p> <p>3. Contbibutoby negligence-when no defense. Contributory negligence is no defense to an action instituted by a child under 14 years to recover for injuries sustained while being employed at a prohibited occupation.</p>

<p>Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. Geobge W. Patton, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Transcript of record-what not competent to support or contradict. Affidavits will not be received in the Appellate Court either to contradict or to support a record certified from the court below.</p> <p>2. Appears and errors-what injunctional order supportive of appeal. An order for an injunction indorsed by the judge upon the bill, made in term time, is appealable, notwithstanding the failure or delay of the clerk to make entry thereof into the regular book for the entry of such orders.</p> <p>3. Injunctions-what not essential to right of appeal from temporary injunctional order. A motion to dissolve made in the lower court is not essential to the right to appeal from an order granting an injunction.</p> <p>4. Injunctions-when remedy at law exists. An injunction should not be awarded when an adequate remedy at law exists, as, for instance, when the relief sought is in effect the trial of the right to personal property.</p>

<p>Bill in equity. Appeal from the City Court of Canton; the Hon. P. W. Gallagher, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.</p>

<p>Judgment by confession—when should he opened up. On motions to set aside judgments by confession, the court exercises an equitable jurisdiction, and if an equitable reason appears for the opening up of the judgment, the motion should be allowed.</p>

<p>Mandamus. Appeal from the Circuit Court of Piatt' county; the Hon. W. G. Cochean, Judge, presiding.</p>

<p>Criminal prosecution for obstructing highway. Error to the Circuit Court of Christian county; the Hon. Feed C. Hill, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Error to the Circuit Court of Vermilion county; the Hon. E. R E. Kimbrough, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of McDonough county; the Hon. John A. Gray, Judge, presiding.</p>

Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.

<p>Objections to executor’s report. Appeal from the Circuit Court of Christian county; the Hon. Tbusian E. Ames, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.

<p>Appeals and ebboks—when nothing preserved for review. If it does not appear from the hill of exceptions that the appellant excepted to the finding and judgment of the court and if it does not appear that any propositions of law were submitted to the court to be held as the law of case, there is nothing preserved for review (except such questions as arise from the common law record).</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cass county; the Hon. Harrt Higbee, Judge, presiding.

<p>Assumpsit. Appeal from the Circuit Court of Pulton county; the Hon. Geokge W. Thompson, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of 'McLean county; the Hon. Colostin D. Myebs, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of De Witt county; the Hon. William C. Johns, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding.</p>

<p>1. Tbiai—when conduct of counsel ground for reversal. Held, that the following conduct of counsel is ground for reversal: In the preliminary cross-examination of a witness the following occurred: “Q. Are you now perfectly cool?” to which question the witness answered, “I am, yes, sir.” Thereupon the following assertion was made: “I see your hands and feet jerking all the time, I thought perhaps you were a little nervous,” it appearing that no such conduct on the part of the witness was apparent to the court and that the effort upon the part of examining counsel was to produce the impression that the witness had shown indications of fear, and the effect of such conduct was not remedied by the sustaining of an objection and a reprimand.</p> <p>2. Tbial—when arguments of counsel ground for reversal. In a close case, an effort to read from a decision of the Supreme Court and a criticism of the Supreme Court’s rulings, constitute ground for a new trial.</p> <p>3. Ihstbuctions—when as to instinct of self-preservation erroneous. In an action for death caused by wrongful act, it is erroneous to permit the jury to consider the instinct of self-preservation where there was an eye-witness of the accident which resulted in the death.</p> <p>4. Instbuctions—when, as to exercise of ordinary care, erroneous. Held, that the following instruction was erroneous in that it limited too closely the time within which the deceased must have been in the exercise of ordinary care for his own safety:</p> <p>“The court further instructs the jury that in order for the plaintiff to recover in this case, it is necessary for him to prove by a preponderance of the evidence that the following allegations in the declaration are true, to-wit:. 1st. That the plaintiff’s intestate, Frederick Weber, was killed at the time and place alleged in the declaration, and that he left him surviving a widow and next of kin as charged. 2nd. That the defendants were guilty of the negligence mentioned in the declaration or some one or more counts thereof in the manner charged in the declaration and that in consequence and by reason thereof the said Frederick Weber was killed. 3rd. That at the -time of his death the said Frederick Weber was in the exercise of ordinary care for his own personal safety; and the other instructions of the court must be considered and construed by the jury in connection with this instruction; and if the jury believe from the evidence that the statements herein recited are true, a verdict should be rendered in favor of the plaintiff.”</p> <p>5. Instbuotions—approved form as to rule to look and listen. The following instruction as to the rule to look and listen is approved:</p> <p>“If the jury believe from the evidence that under all the facts and circumstances surrounding said Frederick Weber, shown by the evidence when he was driving along the said highway, mentioned by the witnesses approaching and in near proximity to the crossing of said highway and said railroad, ordinary care and caution required that he should stop and look and listen to ascertain whether any locomotive engine or train was approaching said crossing on said railroad within such distance as to make it dangerous or unsafe to drive upon the said railroad at such crossing, then it was the duty of the said Frederick Weber to stop, look and listen before driving upon the said railroad at said crossing; and if the jury believe from the evidence that the said Frederick Weber neglected or failed to do so, and that if he had so stopped, looked and listened, he would have discovered or ascertained the approach of said locomotive engine and train in time sufficient to have avoided the injury, then the plaintiff cannot recover in this case.”</p>

<p>Assumpsit. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>1. Evidence-when absence of, cannot be urged on appeal. The absence of evidence to support a particular allegation cannot be urged by an appellant who, by objection upon the trial, has prevented the introduction of such evidence.</p> <p>2. Master and servant-duty of former to furnish reasonably safe track. It is the duty of a traction company to exercise reasonable care to provide a reasonably safe track upon which its cars are to be operated by its servants, and whether or not the company has failed in the performance of such a duty is a question of fact to be determined by the jury under the particular facts and circumstances in evidence.</p> <p>3. Master and servant-what risk not assumed. Held, that the risk arising from the presence upon the tracks of weeds was not such a risk as a motorman, employed by the defendant company, assumed as a matter of law.</p> <p>4. Master and servant-what risks are assumed. A servant assumes the risks ordinarily incident to his employment and the risk of such dangers as are obvious or which by the exercise of ordinary care he would have discovered. A servant may however have actual or constructive knowledge of a defect in an appliance with which, or in a place where is required to work, yet have no knowledge of a danger which may be incident to such defect.</p> <p>5. Master and servant-when doctrine of assumed risk available as defense to master. A master can only be relieved from liability upon the ground that his servant assumed the risk, where the servant is chargeable with knowledge both of the defect and of the danger incident thereto.</p>

<p>Assumpsit. Appeal fgom the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.</p>

<p>Prosecution for obtaining property by false pretenses. Error to the County Court of DeWitt county; the Hon. Fred C. Hill, Judge, presiding.</p>

<p>Masteb and servant-what risks are assumed. An experienced adult employe is chargeable with knowledge of the ordinary conditions under which the business in which he is employed is conducted and assumes its ordinary risks and hazards, and will be presumed to have notice of, and to have assumed, all such risks and hazards which to a person of his experience and knowledge are or ought to be patent and obvious.</p>

<p>Appeals and erbobs—when former decision of Appellate Court not conclusive. The facts of a subsequent appeal being different, the former decision of the Appellate Court in the same case is not conclusive.</p>

<p>1. Mines and Minebs Act—when reliance cannot he placed upon wilful violation of statute hy oioner as basis for lack of knowledge of unsafe condition of mine. If a servant has acquired actual knowledge of the unsafe condition of the roof of a mine hy sounding it with a pick and has taken the necessary steps to avoid a danger incident to such unsafe condition, he cannot he heard to say that he was prevented from having such knowledge by reason of the obscuration of his vision by standing powder smoke due to alleged defective ventilation, and the resulting injury is deemed not approximately to have resulted from the violation of the act complained of.</p> <p>2. Mines and Minebs Act—when failure to inspect not ground for recovery. If an unsafe condition arises after the regular and proper inspection has taken place, no charge of liability can be predicated with respect thereto, upon the ground of non-discovery by the mine examiner.</p>

<p>Bastardy—what essential to right to maintain proceedings for. Under the statute in this state, the woman must be unmarried when the child is both conceived and born in order to be competent to prosecute a bastardy proceeding.</p>

<p>Tender—effect of, in an action for damages occasioned ty fires communicated Toy locomotive engines. A tender of a specific amount by way of damages admits damages to such amount, and the only question to be determined on review is whether or not the damages awarded in excess of that amount are excessive.</p>

<p>1. Instructions—when upon assumed risTc proper. Held, in this case, that the phrase “ordinary peril or danger of the service,” was properly used.</p> <p>2. Evidence—when form of question improper. A question leading in form is improper.</p> <p>3. Verdict—when inadequacy of, not ground for reversal. Notwithstanding it is apparent that the verdict in an action for personal injuries is small, it will not be disturbed on review in the absence of any indication that the jury in rendering such verdict were influenced by passion, by prejudice or by errors of law.</p> <p>4. New trial—when newly discovered evidence not ground for. Newly discovered evidence is not ground for a new trial where merely cumulative in character; likewise, newly discovered evidence is not ground for new trial where it is apparent that there was a lack of diligence in seeking to procure the same.</p>

<p>Bill in chancery. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Decebe—when cannot he attached. A decree of divorce cannot be collaterally attacked.</p> <p>2. Contracts—when cancellation of ante-nuptial contract effective. A decree of divorce fixing alimony in gross and providing that the same be in lieu of all dower rights, etc., operates to cancel an ante-nuptial contract providing for the payment of a gross sum in lieu of dower.</p>

<p>Criminal prosecution for keeping gaming house. Error to the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.</p>

<p>Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p>

<p>1. Evidence-what answers of witness properly striclcen out. The conclusions of a witness are incompetent and are properly stricken out.</p> <p>2. Evidence-when admission of, in rebuttal, not strictly so, not ground for reversal. It is within the sound judicial discretion of the court to admit or to refuse to admit evidence in rebuttal which is not strictly so in character, and no reversal will follow from the action of the court in the absence of an abuse of such discretion.</p> <p>3. Evidence-when explanation of statements contained in letters competent. A witness may he permitted to explain a statement contained in a letter written by him, where such letter does not form the basis of the action or the defense thereto.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Coles county; the Hon E. R. E. Kimbrough, Judge, presiding.

<p>1. Insurance—who not necessary parties to bill to enforce specific performance. The insured is not a necessary party to a hill by a beneficiary to enforce the delivery of policies agreed by the insurer to be delivered.</p> <p>2. Insurance—when statements of general agent binding upon company. The statements of a general agent of an insurer are binding upon it where no limitation of his authority is brought to the notice of the beneficiary who has acted upon the faith of such statements.</p>

<p>1. Malicious prosecution—what competent in mitigation of damages to show good faith. Other thefts than that made the basis of the prosecution are competent in mitigation of damages and to show good faith.</p> <p>2. Malicious prosecution—what competent in mitigation of damages and to show good faith. Information as to alleged thefts obtained from others may be shown in mitigation of damages -and to establish good faith.</p> <p>3. Malicious prosecution—when instruction in action for, erroneous. In an action for malicious prosecution, an instruction is erroneous which authorizes the jury to render its verdict against the defendant because of his having employed private counsel to assist the state’s attorney in the prosecution of the indictments, irrespective of the fact, which there was evidence tending to show, that such private counsel was employed by the defendant at the instance and request of the state’s attorney.</p> <p>4. Malicious prosecution—character of disclosure required to counsel. In order to sustain a defense to an action for malicious prosecution predicated upon the advice of counsel, it need not appear that the defendant in the action, in making his disclosure to counsel, acted in a judicial or entirely impartial manner; it is enough if he acted' as a reasonable and prudent person would ordinarily act under like circumstances.</p> <p>5. Attorney and client—when knowledge of former not imputable to latter. Generally, the knowledge of the attorney is imputable to his client, and the client is not permitted to reap an advantage secured to him by the fraudulent act of his attorney, but this principle is not applicable in a case where the client acting honestly and in good faith upon information obtained from his attorney, institutes and prosecutes criminal proceedings against another.</p> <p>6. Instructions—must not give undue prominence to particular facts. An instruction is objectionable which singles out and gives undue prominence to certain,facts and ignores others.</p> <p>7. Instructions—must not assume facts in dispute. An instruction is improper which assumes the existence of facts in dispute.</p> <p>8. Instructions—what issues should not be submitted. An instruction should not submit to the jury an immaterial issue.</p> <p>9. Instructions—effect of refusing cautionary. It is within the sound discretion of the court to give or refuse instructions which belong to the class known as cautionary; the refusal of such an instruction is not ground for reversal.</p> <p>10. Instructions—must not invade province of jury. An instruction is properly refused which invades the province of the jury, is argumentative and misleading.</p>

<p>Mines and Minees Act—what not defense to action under. Contributory negligence is not a defense to an action instituted under the Mines and Miners Act.</p>

<p>1. Contbacts—when, for distribution of estate, valid. Held, that the agreement involved in this case, which provided for the distribution of an estate, was deliberately entered into, was valid and binding.</p> <p>2. Admiuistbation of estates—when widow’s award relinquished. Held, that the contract in question in this case was intended to and did operate as a relinquishment of the right to a widow’s award.</p>