Volume 145 — Illinois Appellate Court Reports

Mechanic’s lien. Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge presiding; Heard in the Branch Appellate Court at the March term, 1908. Petition for rehearing dismissed for want of notice.

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

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.

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

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

<p>1. Contributory negligence—when passenger not guilty of. A passenger in seeking to alight from a railroad train has a right to assume that ample time will be afforded for such purpose; held, under the evidence in this case, that a passenger injured while alighting was in the exercise of ordinary care.</p> <p>2. Passenger and carrier—duty of latter to permit former to alight. Held, that the following instruction as to when a carrier is not liable for injuries to a passenger suffered while in the act of alighting, was properly refused, in that it left out of consideration the important element that the carrier owed to the passenger the utmost and highest degree of care, skill and diligence for her safety consistent with the mode of conveyance employed, and that the carrier’s servants in charge of the train were required to know, if by the exercise of due care, caution and diligence they could know, that the passenger was attempting to alight from the train before they started it.</p> <p>“The court instructs the jury that while railroad companies are required to announce stations approached or reached, and to give passengers a reasonable time in which to leave the train, they are not required to see that passengers do in fact depart from the train upon arriving at their destination. If, therefore, you believe from the evidence in this case that the defendant gave the plaintiff a reasonable time and opportunity to alight from the train in question; and if you further believe from the evidence that when the employes of defendant started said train they did not know that any passengers were alighting therefrom, in such case it is your duty to find the defendant not guilty.”</p>

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

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.

<p>1. Contracts—what sufficient consideration to support novation. The making of a concession and the incurring of a new obligation is a sufficient consideration to support a novation.</p> <p>2. Sales—when transaction within legal definition of. A transfer by one company of its business and assets to another, the same to be paid for in quarterly instalments, is a legal sale even though a provision is made that in the event of the happening of a particular contingency the obligation to make further payments becomes extinguished.</p> <p>3. Attorney and client—what not threat to disclose confidential communications. Held, that the letter in evidence in this case was not a threat to disclose confidential communications.</p> <p>4. Statute oe Frauds—what tolees case out of. Part performance of a contract not to be performed within a year, takes the same without the Statute of Frauds.</p>

<p>1. Amendments and jeofails—what authorizes nunc pro tunc order. If a party upon a trial has been permitted to make an amendment, there is sufficient justification for the entry subsequently of a nunc pro tunc order formally authorizing such amendment.</p> <p>2. Verdict—when not disturbed as against the evidence. A verdict not manifestly against the weight of. the evidence will not be set aside on appeal.</p>

<p>1. Eminent domain—effect of judgment in condemnation upon lien of trust deed. A judgment in condemnation transfers the lien of the trust deed from the land to the fund awarded; a release by the trustee in the trust deed is not necessary; likewise, the owner of the debt secured can only be charged with the amount actually paid under the condemnation judgment.</p> <p>2. Foreclosure—what allowance of solicitor’s fees proper. Held, in a foreclosure proceeding that an allowance of $1,000 by way of solicitor’s fees was proper.</p> <p>3. Foreclosure—when decree directing particular order of sale proper. Held, that the decree or order of foreclosure entered in this case providing for the sale of the property foreclosed in a particular order as to lots, was proper.</p>

<p>Bill for accounting. Appeal from the Circuit Court of Cook county; the Hon. Thomas 6. Windbs, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.</p>

<p>1. Practice—proof required in assumpsit against joint debtors in absence of plea denying joint liability. Notwithstanding no plea denying joint liability is interposed in an action of assumpsit, yet there can be no recovery by the plaintiff unless the evidence shows the joint liability of all the defendants to the action.</p> <p>2. Assumpsit—when joint liability does not appear. Held, that the evidence in this case did not show joint liability by the several defendants joined in the action.</p>

<p>1. Bucket shops—what evidence competent in prosecution for keeping. It is competent to permit a witness to state that the place in question in the prosecution was a “bucket shop.”</p> <p>2. Bucket shops—when refusal of instruction not erroneous. Held, in this case, that it was not error to refuse an instruction to the effect that proof that the defendant had conducted a bucket shop elsewhere than at the building named in the indictment would not “authorize or justify a conviction.”</p> <p>3. Bucket shops—what not essential to conviction for keeping. In order to sustain a conviction for the keeping of a bucket shop wherein is conducted or permitted “the pretended buying or selling of the shares of stock or bonds of any corporation” etc., it is not necessary to show that the transactions of “pretended” buying and selling be of the shares of an existing corporation.</p> <p>4. Instructions—when not error to refuse. When a jury has been -instructed in respect to a particular proposition either in affirmative or negative form that is sufficient and it is not error to refuse another instruction upon the same proposition in the converse form.</p> <p>5. Instructions—when not error to refuse, upon credibility of witnesses. An instruction upon this subject though stereotyped in form and correct in principle may be refused without the commission of error if it had not been so drafted as to fit the facts of the particular case and as presented has hut slight applicability to the cause.</p>

<p>Action on the case. Appeal from the Superior Court of Cook county; the Hon. Albert H. Frost, Judge, presiding. Heard in this court at the October term, 1907.</p>

<p>1. Appeals and errors—what exception essential to review. An exception to the finding and judgment of the court in a cause tried without a jury must be preserved by bill of exceptions to entitle an appellant to a review of the cause on the evidence.</p> <p>2. Appeals and errors—when denial of non-suit not subject to review. The denial of a motion for a voluntary non-suit is not subject to review unless an exception was preserved to the ruling, and the motion, ruling and exception preserved by bill of exceptions.</p>

<p>Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the October term, 1907.</p>

<p>1. Appeals and errors—what not subject to review upon hearing of interlocutory order. Upon an appeal from an interlocutory order the merits of the controversy not involved in the interlocutory order are not before the Appellate Court for review.</p> <p>2. Receiverships—when appointment not erroneous. The appointment of a receiver made in the exercise of a legal discretion will not be set aside on review where no abuse of discretion appears.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1907.</p>

<p>1. Appeals and errors—what questions not subject to review. Questions directly concerning only a party not joined in the appeal, will not be considered on review.</p> <p>2. Publication—when service by, confers jurisdiction. Service by publication undertaken two years after the return of the attachment writ, will confer jurisdiction if such service is otherwise regular.</p> <p>3. Attachments—when error to quash. An attachment in aid should not be quashed and the garnishees discharged on the ground that the publication undertaken did not confer jurisdiction where the defendant has appeared in person and submitted himself to the jurisdiction of the court.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in this court at the October term, 1907.

<p>Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the October term, 1907.</p>

Bill for receiver, etc. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the October term, 1907.

Bill for receiver, etc. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the October term, 1907.

<p>1. Lis pendens-operation of doctrine of. One who acquires rights in corporate stock during the pendency of litigation involving the determination of the ownership of such stock, takes subject to all of the infirmities of title existing in his assignor.</p> <p>2. Amendments and jeofails-what not abuse of discretion. It is not an abuse of discretion to refuse to allow an amendment of a bill of complaint at the time of the entry of a final decree thereon upon demurrer sustained thereto; the application to amend being two months after the hearing upon the demurrer, being the second which had been made, the first having been granted.</p> <p>3. Pleading-what not legal averment of status as stockholder. Held, that the following allegation in that it did not set up facts, failed legally to allege the ownership of stock: "That in or about the year 1857 he became, ever since has been and now is, a stockholder of the People's Gas Light & Coke Company, and the owner of 1,500 shares, of the par value of fifty dollars each, of the original capital stock of the said defendant corporation."</p> <p>4. Pleading-when indefIniteness of demand raises preswmption of laches. The allegation of a demand upon the defendant that a right of the plaintiff be accorded him being made without date, may be presumed to have been made but shortly before the institution of the suit, and if having been so made would have then in fact have been made at a time when the right would have been lost by virtue of laches, the pleading is insufficient, and its insufficiency may be availed of by general demurrer.</p> <p>5. Statute or Limitations-availability of, as between corporation and stockholder. The Statute of Limitations as well as the doctrine of laches may be availed of by a corporation against a stockholder.</p> <p>6. Laches-what constitutes as against stockholder. Fifty years of unexplained delay in asserting rights of accounting and participation in stock increases constitutes laches and bars the action.</p>

<p>1. Amendments and jeofails—when verification of amendment of sworn pleading not essential. Verification of an amendment to a sworn pleading is not essential where there is no fact alleged in the amendment calling for verification.</p> <p>2. Alimony—what questions cannot he determined upon application for. The merits of the main relief sought cannot be determined upon the application for the allowance of alimony pendente lite.</p> <p>3. Solicitor’s fees—when allowance to wife properly subject to revision. If an allowance of solicitor’s fees has been made to a wife to enable her to defend against an appeal by her husband questioning an allowance of alimony pendente lite, and if such allowance is not employed for such purpose, it is proper for the chancellor to modify his order with respect thereto.</p>

<p>Trespass. Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1907.</p>

<p>1. Public streets—what use of, unlawful. The maintenance by a private corporation of an obstructing nuisance upon a public street is unlawful and may properly be removed by the municipality.</p> <p>2. Nuisance—what is, as matter of law. Barrier platforms and skids constructed upon a public street impeding the movements of pedestrians are by statute a public nuisance.</p> <p>3. Nuisance—rights of municipality with respect to. A municipality may proceed to abate a public nuisance and prosecute for fines for their maintenance, the one or the other, or both, in its discretion but it is not required to proceed to penalize as a condition precedent to the right to abate.</p> <p>4. Nuisance—what does not preclude municipality from right to abate. Acquiescence in the maintenance of a public nuisance or purpresture does not estop a municipality to abate the same.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.</p>

<p>1. Bailments—when relation of inn-keeper and guest does not arise. One who engages a room for a limited period, as for a week, with the owner who runs separately a restaurant, does not become a guest within the meaning of the law.</p> <p>2. Bailments—obligations of lodging-house keeper. A lodging-house keeper is under no duty in any way to care for the safety of the goods and property of his lodger.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.</p>

<p>Action in ease 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, 1908.</p>

<p>Verdict—when set aside as against the evidence. A verdict will be set aside on review as against the weight of the evidence where clearly and manifestly so.</p>

<p>Criminal prosecution for subornation of perjury. Error to the Criminal Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.</p>

<p>This case is controlled by the decision in Clifford v. Stafford, ante, p. 247.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.</p>

<p>Criminal prosecution for obtaining money under false pretenses. Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Mandamus. Error to the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.</p>

<p>1. Sales—presumption as to time of consummation. The presumption is that every sale is to he consummated at once.</p> <p>2. Contracts—when undertakings of parties fixed without formal instrument. A written proposition and acceptance fixes the rights of the parties without the execution of a formal contract where at the time of the making of such proposition and acceptance thereof there was no apparent intention of entering into a formal contract.</p> <p>3. Contracts—how question of existence of, determined. Where the existence or non-existence of a contract depends upon writings alone, it is error to submit the determination of such question to the jury. Reid, however, in this case that the error of so submitting such question to the jury was harmless in that the jury properly found the existence of the contract.</p>

<p>Master and servant—duty to furnish safe place. It is the duty of a master to exercise reasonable care to furnish his servant a reasonably safe place in which to perform his duties to the master; when the nature of the business in and about which the servant is employed is such that the exercise of reasonable care requires it, then there is on the part of the master an active and continuous duty of inspection to discover hidden or latent defects. The servant may rely upon the discharge by the master of his duty in this respect.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the October term, 1907.</p>

<p>1. Licensees—who not mere. A person who enters upon premises upon which an auction is to be conducted, for the purpose of purchasing at such auction, is not a mere licensee but is upon such premises by implied invitation.</p> <p>2. Contributory negligence—when person standing in horse auction ring not guilty of, as a matter of law. Held, under the evidence in this case, that it was for the jury to determine whether a person injured while standing in an auction ring where horses were being exhibited prior to sale, was in the exercise of ordinary care.</p> <p>3. Practice—when general objection will not avail. A general objection will not reach the irresponsiveness of an answer.</p> <p>4. Instructions—when modification requiring knowledge in plaintiff of loaning sign, proper. Held, that the modification of the following instruction by the insertion of the italicized words, was proper:</p> <p>“You are instructed that if you believe from the evidence that at the time of the injury to the plaintiff there was displayed conspicuously in the ring in question a sign reading as follows: ‘Do not stand in the ring. Persons standing in this ring do so at their own risk’; and that the plaintiff knew of said sign, and that the plaintiff received his injuries while standing in the ring in question, then you are instructed that the plaintiff cannot recover and your verdict must be for the defendants.”</p> <p>5. Verdict—when not excessive. A verdict for $3,500 rendered in an action for personal injuries is not excessive where it appears that plaintiff suffered as a result of the accident three fractured ribs, contusions to the back, stomach trouble, pleurisy, pain, etc.</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. Heard in this court at the October term, 1907.

<p>Fees and salaries—what not within power of village. A village appointing an attorney must definitely fix his salary; such village has no power to authorize the rendition of services upon the basis of the usual and customary charges.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in this court at the October term, 1907.

<p>1. Landlord and tenant—what not defense to action for rent. A bad condition of sewerage etc. in demised premises does not constitute an eviction and is not a defense to an action for the recovery of rent where the lease recites that the lessee has “received the demised premises in good repair and condition and will keep them in good repair.”</p> <p>2. Landlord and tenant—what not acceptance of surrender. Merely retaking possession of demised premises after abandonment by the tenant and re-renting the same without notice to or consent by the tenant, is not by itself an acceptance of surrender even though the terms of the demise did not specifically authorize such action by the landlord.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1907.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1907.</p>

<p>Verdict—when not disturbed. A verdict not clearly against the preponderance of the' evidence and which appears to have been rendered without the intervention of substantial error, will not be reversed upon review.</p>

<p>Trial—what arguments of counsel improper. In an action for personal injuries remarks of counsel in argument referring to medical experts as follows, are inflammatory and improper: “Do you think there is enough evidence bought up at $50 a day, the same as this has been, to divert you attention from the facts of this case and to defeat this claim?" and, referring to a particular doctor, “He gave me the impression of a Judas, who would not come here until he got the $50.” A verdict induced by such language will not be given the same consideration as is accorded to one obtained by appropriate arguments.</p>

<p>1. Practice—when not error to strike special plea. A special plea filed after the regular pleadings have been interposed is properly stricken when it has been so filed without leave of court.</p> <p>2. Practice—when not error to strike special plea. It is not error to strike from the files a special plea which is double and obnoxious to demurrer.</p> <p>3. Pleading—what defenses not admissible under general issue. In an action upon a fraternal benefit certificate the defense that a member was addicted to the excessive use of intoxicating liquor is not admissible under the general issue.</p> <p>4. Evidence—what does not tend to prove drunkenness. The sole fact of residence in the Washingtonian home is inadmissible as evidence to prove drunkenness.</p> <p>5. Fraternal benefit societies—construction of insurance contract. If ambiguity exists in an insurance contract the construction given to such contract will be most favorable to the insured.</p> <p>6. Fraternal benefit societies—-what does not affect misrepresentation by applicant. The fact that one in becoming a member of a fraternal benefit society falsely represented that he was not addicted to the excessive use of intoxicating liquors, will preclude recovery by the beneficiaries if his death resulted from the use of such liquors, notwithstanding under the rules of the order such member could not have been expelled therefrom without proof of “habitual” excessive use of such liquors.</p> <p>7. Verdict—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will be set aside on appeal.</p>

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

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the October term, 1907.</p>

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

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1907.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1908.

<p>Action in case for death caused by alleged wrongful act. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Sales—what not competent to affect bill of sale. In the absence of ambiguity or uncertainty, parol evidence is inadmissible for the purpose of showing that other property not answering the description in the bill of sale was included or intended to be included therein.</p>

<p>Negotiable instruments—when equitable defenses may be interposed. The release of a guarantor may he interposed by him as a defense against one who acquires the note upon which the guaranty appears, after the maturity thereof.</p>

<p>1. Statute of Limitations—what does not toll running of. A voluntary assignment for the benefit of creditors and the appointment of an assignee does not toll the running of the Statute of Limitations against an open account.</p> <p>2. Voluntary assignments—when objections to report of assignee properly stricken. Objections to the report of an assignee interposed by a creditor whose claim is outlawed are properly stricken from the files.</p>

<p>Replevin—when defendant estopped to deny possession. One who pretends to have levied a distress warrant upon a field of corn is thereby estopped, in an action of replevin to recover such corn, from denying having taken possession thereof, and this notwithstanding the levy may not have been made in strict conformity with law,—no rights of third parties being involved.</p>

<p>Assumpsit. Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Appeals and errors—when finding of chancellor not disturbed. Where the evidence is close and conflicting, and the Appellate Court cannot say that the finding of a chancellor was manifestly contrary to the evidence, such finding will not he disturbed.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1908.

Action in case for personal injuries. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1908.

<p>Assumpsit. Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Partition—when apportionment of solicitor’s fees not warranted. Even though the original petition properly set out the rights and interest of the parties, yet if by the death of one of such parties an amendment became necessary, which amendment did not set out every interest so fully and clearly that the parties defendant were relieved from the necessity of employing other counsel, an apportionment of complainant’s solicitor’s fees is properly denied.</p>

<p>Instructions—must not ignore material issue. An instruction which authorizes a verdict in disregard of how a particular issue may he determined, is erroneous and cannot be cured by other instructions given.</p>

<p>Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1908.

<p>Action in case for personal injuries. Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in the court at the May term, 1908.</p>

<p>1. Statute of frauds—who may avail of. A lessee entitled to possession of demised premises may urge as against a former tenant in possession that such possession was under an agreement void by virtue of the statute of frauds.</p> <p>2. Landlord and tenant—when demand for possession not essential. Demand for possession is not essential where the tenant is in possession without right.</p>

<p>1. Corporations—when principles of partnership applied to. If a corporation closely partakes of the nature of a partnership it will be governed by the rules and principles applied to partnerships.</p> <p>2. Corporation—when dissolution of will he decreed. A corporation will be dissolved if it so closely partakes of the nature of a partnership as to be governed by the rules and principles of partnerships and it is shown that ill-will and dissension has arisen between the members forming the joint enterprise.</p> <p>3. Equity—when remedy at law does not oust jurisdiction. Under the law of partnerships, the existence of a remedy at; law will not preclude the interposition of equity to grant the relief of dissolution.</p> <p>4. Decree—when cannot he attached for insufficiency of prayer for relief. A decree entered pro confesso cannot be questioned on review upon the ground that it was not authorized by the relief prayed.</p>

<p>Action in case. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Appeals and ebbobs—when judgment will he affirmed. If no prejudicial error appears and the verdict is sustained by the evidence, a judgment will be affirmed.</p>

<p>1. Pleading—effect of verified plea of non est factum. The interposition of a verified plea of non est factum imposes upon the plaintiff the burden of proving the execution of the notes and the endorsement, assignments and respective deliveries of the notes, as averred in the declaration.</p> <p>2. Negotiable instruments—presumption as to time of assignment. In the absence of proof as to the time of assignment of a note, it would be presumed that it was made before maturity.</p> <p>3. Negotiable instruments—when fraud in inducing execution competent as against assignee. If an assignee, at the time of the assignment to it of the notes in suit, was manifestly not a bona fide purchaser and holder thereof, fraud which induced the execution of such notes may be shown by way of defense to an action brought by such an assignee.</p>

<p>Petition for appointment of guardian. Error to the County Court of Vermilion county; the Hon. Isaac A. Love, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Instructions—must be confined to issues. Instructions which are . not confined to the issues of a cause should not be given.</p>

<p>Damages—when allegation of special, essential. The rule is that whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then in order to prevent surprise of the defendant which might otherwise ensue on the trial, the plaintiff must in general state the particular damage which he has sustained, or he will not he permitted to give evidence of it.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.

<p>Injunctions—when should he denied. If a remedy at law exists, as in this case for replevin, an injunction should not be awarded.</p>

Petition for letters of administration. Appeal from the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the May term, 1908.

Bill for specific performance. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1908.

<p>Landlord and tenant—how written lease may he surrendered. A written lease, even though it be under seal, may be surrendered by a parol agreement or by an agreement inferable from the conduct of the parties.</p>

<p>1. Evidence—when party incompetent by virtue of interest. Where the adverse party sues or defends in a representative capacity, the other party in interest is incompetent.</p> <p>2. Evidence—when admissions of one party hind another. The admission of one joint lessee is general evidence against both lessees.</p>

<p>Principal and surety—when alteration of original undertaking does not release latter. Where the alterations in the terms of a contract did not operate to the prejudice of the surety, or put him in worse position, or increase his risk, or impair the ultimate liability over to him, such alteration does not operate by way of discharge.</p>

<p>1. Contracts—what aids construction of. The construction of a contract placed thereon by the parties will be considered by the court in determining the true meaning and effect thereof.</p> <p>2. Verdict—when not disturbed as against the evidence. A verdict not clearly against the weight of the evidence will not be set aside on review.</p> <p>3. Vendor and vendee—remedy for refusal to accept. If a vendee refuses to accept and pay for merchandise at the contract price, the vendor has the right to resell such merchandise and charge the vendee with the difference between the contract price and that realized by sale.</p>

<p>Mechanic’s lien. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Injunctions—when should not he awarded without notice. An injunction should not be granted without notice where it does not appear from the bill or affidavit supporting the same that the rights of the complainant would have been unduly prejudiced if notice had been given to the defendants of the application. This rule is not affected by the fact that some of the defendants named in the bill reside in another county from that in which the application was made.</p>

<p>Foreclosure. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1908.</p>

Bill for specific performance. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1908.

<p>Assumpsit. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>1. Pleading—when question of existence of declaration to support recovery waived. By participating without objection in the trial upon the merits upon the issues formed, the non-existence of a declaration, because of demurrer sustained, cannot be urged on review.</p> <p>2. Trial—when conduct of counsel ground for reversal. The conduct of counsel in bringing by indirection to the attention of the jury the fact that the defendant had been indemnified with respect to the pending action by an insurance company, is prejudicial and ground for new trial, notwithstanding the trial court by its rulings sought to prevent such fact being shown.</p> <p>3. Evidence—when conclusions of experts invade province of jury. After expert witnesses have given the basis for the foundation of the conclusion as to whether a particular room in a mine .was safe or otherwise, it is not competent to permit such witnesses to state their opinion as to whether such room was safe or unsafe.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1908.

<p>1. Replevin—upon what recovery must he predicated. A plaintiff in replevin can only recover upon the strength of his own title and the burden is upon him to establish his right.</p> <p>2. Instructions—must not ignore material issue. An instruction which concludes with a direction to find a verdict one way or another, must not exclude from consideration any material issue of the case.</p> <p>3. Instructions—must he predicated upon the evidence. Instructions are improper where their hypotheses are unsupported by evidence in the cause.</p>

<p>Action on the case. Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Greer, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>1. Evidence—effect of sheriff’s recitals upon return as independent evidence. The recitals of service upon a summons are not substantive evidence in the cause. Held, in this case, that it was error to permit the.summons and the return to be admitted in order to show operation of the mine in question by the defendant.</p> <p>2. Evidence—when failure to report accident should not he shown. Where not involved in the issues of the cause, it is error to permit the plaintiff to show that the defendant mine owner failed to report the accident in question to the state inspector having supervision of such mine.</p> <p>3. Evidence—competency of X-ray photographs. Upon a proper foundation being made, X-ray photographs are competent to show the extent of the injury.</p> <p>4. Evidence—what pari of res gestee. Exclamations and declarations of pain made while under debris are competent as part of the res gestee.</p> <p>5. Instructions—when in language of statute should not he given. An instruction is properly refused which incorporates only such parts of the statute as are favorable to the party asking it if it leaves out other portions of the same statute which may be favorable to the contention, of the opposite party.</p> <p>6. Instructions—must not give undue prominence to particular evidence. An instruction is improper which gives special and undue' prominence to particular evidence.</p> <p>7. Verdict—when excessive. A verdict of $2,500 rendered in an action for personal injuries is excessive, it appearing that the plaintiff as a result of the accident in question suffered intense pain in his back, legs and feet at the time of and for some time subsequent to his injury; that at the time of his injury he was earning $4 a day; that he remained in bed six weeks and was only able to move his hand; that for about three weeks he was in a chair and after that was able to get around on crutches; that he used the crutches until warm weather; that on a certain day, some time after the accident, he was employed at the mine as a check weighman; that at the end of such day his back was very painful and his ankle was also painful and swollen; that he could not move as he did before the injury because of the pain, and that by reason of his injury the amount of his wages became less.</p>

<p>1. Pleading—what determines whether plea is in abatement or in bar. Whether a plea is in abatement or in bar is to be determined not from the subject-matter of the plea but from its conclusion. The advantage of relief sought by- the plea determines its character.</p> <p>2. Pleading—when plea sets up matter in abatement. A plea which does not dispute the justness of the plaintiff’s claim but which sets up matter which necessarily operates as an objection to the mode of asserting such claim, and the judgment entered is one which leaves the plaintiff to renew his action in another form, is a plea not in bar but in abatement.</p> <p>3. Pleading—conclusion of plea in abatement. The proper conclusion of a plea in abatement is that the writ and the declaration be quashed.</p>

<p>1. Landlord and tenant—when partnership accepts lease. The conduct of a partnership under and by virtue of the provisions of a lease constitutes an acceptance by such partnership of the lease and such partnership becomes bound by the provisions thereof notwithstanding it has not signed the same.</p> <p>2. Landlord and tenant—character of provision of assignment without former’s consent. A provision in a lease that the same shall not be assigned without the written consent of the lessor is a provision for the benefit of the lessor only and the failure of the parties to obtain such consent does not render the assignment void.</p> <p>3. Landlord and tenant—when latter obligated to pay special assessments. A lease providing that the tenant shall pay all taxes and “assessments” obligates such tenant to pay special assessments.</p> <p>4. Local improvements—when proceeding not subject to collateral attack. A proceeding to levy a special assessment cannot be attacked in an action by the owner of the property assessed against his tenant to compel such tenant to pay an assessment which he has assumed by the lease to pay.</p>

<p>1. Mandamus—when lies. The remedy by mandamus can only be invoked where the relator sets forth and establishes the right to coerce the respondent to do the thing sought to be done.</p> <p>2. Mandamus-—when not awarded to compel municipality to pay salary. Unless the right to the salary sought to be collected by mandamus is clear, the right to the remedy will be denied.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.

<p>1. Common carriers—when liable for delays in transportation. In the absence of a special contract on the part of the carrier to deliver within a specified time, mere delay in transportation does not create a liability, but when the delay is beyond the time usually required to transport the shipment, the burden is cast upon the carrier to explain such delay and that it did not result from negligence.</p> <p>2. Common carriers—burden to show knowledge by shipper of restrictive conditions of contract signed by him. The burden is upon the carrier to show knowledge of and assent by the shipper to restrictive provisions contained in the contract signed by him and the fact that the shipper in making and presenting his claim for damages to the carrier complied with the provisions of such contract in that respect, is not conclusive evidence of his knowledge of and assent to the terms of such contract when he signed the same.</p>

<p>Specific performance—relief accorded where property sought to be obtained pursuant to contract has been destroyed pendente lite. In a proceeding to enforce specific performance of a contract for the sale and conveyance of improved property if the improvements upon such property have been destroyed pendente lite, the difference between the market value of the land immediately before the destruction of such improvements and the like value immediately thereafter should be ascertained and a corresponding abatement made in the purchase price provided for in the contract.</p>

<p>1. Drainage—when obligation to repair arises. Having voluntarily assumed to construct a drain, a district, by virtue thereof, impliedly assumes the obligation to keep such drain in repair.</p> <p>2. Verdict—when not disturbed as against the evidence. A verdict not clearly against the weight of the evidence will not be set aside on review.</p>

<p>1. Evidence—when not competent to corroborate witness. A witness who has made contradictory statements may rarely he supported by the introduction oí evidence that at other times and places he has made consistent statements.</p> <p>2. Evidence—when objection to lack of foundation for telephone conversations comes too late. The laying of the foundation for the introduction of telephone conversations is waived by a failure to object thereto in the trial court and by the complaining party having introduced like conversations without laying a foundation therefor.</p> <p>3. Witnesses—when may he permittéd to testify notwithstanding they have remained in the court room during the-trial contrary to order of court. It is within the discretion of the court to permit such a witness to testify.</p> <p>4. Witnesses-—when attorney justified in testifying. An attorney is justified in taking the stand in an emergency to prevent a possible miscarriage of justice and to meet a false aspersion cast upon his professional character.</p> <p>5. Instructions—-when action of court in refusing waived. The action of the court in refusing a peremptory instruction is waived by the defendant thereafter introducing evidence upon his own behalf.</p> <p>6. Pleading—when declaration in action for alienation of affections sufficiently avers marriage. Held, that the allegations of the declaration in this case sufficiently averred the existence of the marriage relation between the plaintiff and her husband whose affections it was alleged had been alienated; likewise that such declaration sufficiently averred that prior to the acts of the defendant complained of plaintiff had the affections of her husband.</p> <p>7. Pleading—when declaration charging alienation of affections sufficient. In an action for alienation of affections the pleader is not required specifically to aver the means used by the defendant to effect the wrongful alienation but an averment of the ultimate fact is sufficient.</p>

<p>1. Mechanic’s liens—when subcontractor entitled to recover in excess of amount due to contractor. Held, under the particular facts of this case, that the decree in favor of the subcontractor for a greater sum than that which was shown to he due from the owner to the original contractor was justified.</p> <p>2. Mechanic’s liens—when notice of claim filed in time. Held, under the evidence in this case, that the notice of claim for lien was filed within twenty days after the completion of the subcontract relied upon as the basis of the relief sought.</p> <p>3. Master in chancery—when report of, conclusive as to findings of fact. In the absence of objections and exceptions to the report of the master, the same is conclusive as to all findings of fact.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1908.

<p>1. County courts—character of jurisdiction of. County courts are not courts of general jurisdiction within the meaning of section 31 of the Counties Act.</p> <p>2. County courts—when without jurisdiction. County courts have no jurisdiction with respect to counties sued in actions of assumpsit.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1908.

<p>Appeals and errors—when freehold involved. In a proceeding to construe a will a freehold is involved if the determination of the cause will result in the loss of a freehold by one of the parties in interest.</p>

<p>Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.</p>

Action commenced before justice of the peace. Appeal from the County Court of Shelby county; the Hon. Calvin Green, Judge, presiding. Heard in this court at the May term, 1908.

<p>Action in case for personal injuries. Appeal from the Circuit Court of Montgomery county; the Hon, Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Replevin. Appeal from the Circuit Court of Hancock county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1907.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1908.

<p>Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Measure of damages—in action for wrongful detention of property. The rule as to the measure of damages in an action to recover for the wrongful taking and detention of personal property is that the plaintiff is entitled to recover as damages the value of the use of the property while it was detained and any depreciation in such value during its detention, produced by abuse or want of reasonable care on the part of the defendant.</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Bill in equity. Appeal from the City Court of Mattoon; the Hon. T. N. Cofer, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>Action on the case. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the May term, 1908.</p>

<p>1. Contracts—when default in performance providing for sale of real estate does not appear. A default in the performance of a contract providing for the sale and conveyance of real estate which will justify an action at law is not established where it appears that the contract contains mutual obligations and the plaintiff does not show that those obligations which it was incumbent upon him to perform have been carried out.</p> <p>2. Contracts—right to reasonable time to correct defects of title. A party to a contract for the sale and conveyance of land is entitled to a reasonable time after being notified of defects in his title to cure such defects, and until such time has elapsed with a failure to cure such defects no default can be successfully urged."</p>

<p>1. Mechanic’s liens—when owner liable for repairs made by lessee. A lien will be enforced against the owner of land for repairs made by his lessee where the lease provided that the lessee shall make such improvements and that the same shall become the property of the lessor at the expiration of the lease.</p> <p>2. Mechanic’s liens—what not subject of. Labor performed in mining coal in the regular course of operating a mine is not performed in the making of any improvement within the meaning of the statute providing for mechanic’s liens and therefore cannot be made the basis of mechanic’s lien relief.</p> <p>3. Mechanic’s liens—allowance of solicitor's fees improper. The mechanic’s lien statute which provides for the allowance of solicitor’s fees to the plaintiff’s solicitor, is unconstitutional and such an allowance is improper.</p>

Action in case for personal injuries. Appeal from the Circuit, Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1908.

<p>Action in case for personal injuries. Appeal from the Circuit Court of Shelby county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1908.</p>

Action in case 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, 1908.

<p>Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.</p>