Volume 151 — Illinois Appellate Court Reports

<p>1. Dramshop Act—when joint and several judgment appropriate. The evidence establishing liability, there is no reason which precludes a joint and several judgment against a partnership and an individual.</p> <p>2. Evidence—what not proper cross-examination. The subject not being inquired upon on direct examination, it is improper upon cross to permit a witness to testify as to the habits of intoxication of the plaintiff prior to the injury.</p> <p>3. Evidence—what essential to save question of competency. In order to save for review the question of the competency of the evidence admitted, an objection must have been made thereto and an exception saved to the adverse ruling of the court.</p> <p>4. Instructions—when upon law of proximate cause properly refused. An instruction is properly refused, which tells the jury that in order to hold a defendant charged with negligence resulting in an injury he must have foreseen the particular injury and the particular manner of its occurrence.</p>

<p>Contempt proceeding. Error to the City Court of Mattoon; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Proceeding by information. Error to the County Court of Macon county; the Hon.' O. W. Smith, Judge, presiding. Heard in this court at the May term, 1909.</p>

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

<p>1. Instructions—when refusal to exclude particular counts not subject to review. In order to save for review the propriety of the action of the trial court in refusing to exclude from the jury the particular counts of a declaration, it is essential that a peremptory instruction limited to such counts shall have been presented and refused.</p> <p>2. Variance—when objection to, comes too late. An objection of variance not raised in the trial court cannot be first urged on review.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the November term, 1908.

<p>Assumpsit. Appeal from the Circuit Court of Moultrie county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.

Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. W. G. Cochean, Judge, presiding. Heard in this court at the May term, 1909.

<p>Assumpsit. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Bill in equity. Appeal from the Circuit Court of Adams county; the Hon. Habby Higbee, Judge, presiding. Heard in this court at the May term, 1909.</p>

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

<p>Action of debt. Appeal from the Circuit Court of Cass county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Bill in chancery. Appeal from the Circuit Court of DeWitt county; the Hon. W. C. Cochran, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>1. Roads and bridges—warrants as evidence of debt. Inasmuch as commissioners of highways have general legal authority to draw warrants upon the treasurer, a warrant drawn by them is prima facie evidence of a pre-existing liability according to its terms; and a valid and sufficient consideration therefor may properly be presumed.</p> <p>2. Roads and bridges—what not defense to warrant. In an action upon a warrant issued by highway commissioners upon its treasurer various defenses set up by special plea are considered and held insufficient to defeat payment of such warrant, and held, further, that one of the defenses set up that the work was done and the indebtedness contracted for at a time when there was no fund in the hands of the commissioners and no levy made with which to pay for the same.</p>

<p>Petition for removal of guardian. Error to the County Court of Douglas county; the Hon. E. D. Hutchinson, presiding. Heard in this court at the May term, 1909.</p>

<p>Judgment by confession. Error to the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Instructions—when error will not reverse. If the verdict and judgment are clearly right an instruction though subject to criticism will be regarded as harmless error and a reversal will not be awarded.</p>

Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.

<p>Action in case. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>1. Appeals and errors—when sufficiency of plea saved for review. Proceeding to trial upon other pleas presenting distinct grounds of defense does not waive the question as to the propriety of the court in .sustaining a demurrer to another plea.</p> <p>2. Fraternal benefit societies—what constitutes contract of insurance. Where the application is not only referred to in the certificate but the statements and stipulations imposed therein are expressly and specifically made a part of the certificate, the contract of insurance is represented by the application, by the certificate, the examination of the physician and the constitution and by-laws of the society.</p> <p>3. Fraternal benefit societies—what constitute warranties. Statements made in an application which enter into and become a part of the certificate of insurance are warranties and not representations and whether material or otherwise must have been literally true in order that recovery may be had upon such certificate.</p> <p>4. Fraternal benefit societies—when defenses not waived. If a letter is written by a fraternal benefit society refusing to pay a claim for insurance upon specified grounds, other grounds justifying such refusal to pay may be urged if such letter did not tend to mislead or prejudicially influence the claimant under the certificate in suit.</p> <p>5. Evidence—effect of verdict of coroner’s jury. A verdict by a jury impaneled by a coroner is not conclusive of the facts found, nor does such verdict establish prima facie the fact found, but the same is" merely evidence which tends to show the existence of the fact in question.</p>

<p>Assumpsit. Appeal from the Circuit Court of Clark county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1908.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1908,

Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Macoupin, county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1908.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the November term, 1908.

<p>1. Evidence—what not part of res gestae. Self-serving declarations not part of the res gestae are properly excluded.</p> <p>2. Instructions—when errors presumed cured. If all given instructions do not appear in the abstract, it will be presumed that' any errors appearing in those complained of were cured by the other instructions given.</p>

<p>Insurance—when fire policy void by reason of change of ownership. Held, that the policy in suit became void by reason of the change in the ownership of the property insured without the consent of the company, and held further, under the evidence, that a soliciting agent of such company had and assumed no authority to make an assignment of the policy or to consent thereto or to waive any of the conditions of such policy after it was issued.</p>

<p>Trespass on the case. Appeal from the City Court of Canton; the Hon. P. W. Gallagher, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Asrsumpsi't. Appeal frbm the Circuit Court of McLean county; the Hon. "CoEOSTirr D. Myebs, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Assumpsit. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Injunctions—when damages not allowed upon dissolution. If the original issuance of the injunction was rightful, the fact of dissolution resulting as a consequence of some ensuing act of those enjoined, does not authorize the assessment of damages.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Moultrie county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the November term, 1908.

<p>Assumpsit. Appeal from the Circuit Court oftSangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1909.

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, 1909.

<p>Action in case. Appeal from the County Court of Champaign county; the Hon. T. J. Roth, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Intervening petition. Error to the Circuit Court of Sangamon county; the Hon. James A. Creiqhton, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>Replevin—when defendant should he named in representative capacity. If the taking was by a person in his capacity as a conservator, the action should be brought against such person as conservator.</p>

<p>Assumpsit. Appeal from the County Court of McDonough county; the Hon. William J. Franklin, Judge, presiding. Heard in this court at the May term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1909.

<p>Prosecution for conspiracy to libel, etc. Error to the Circuit Court of McLean county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1909.</p>

<p>1. Contempt—when allegations of hill taken as true. A party before the chancellor for disregard and violation of an injunction cannot exonerate himself by raising an issue upon the truth of some of the averments of the bill whereupon the injunction was issued and then predicate a lack of jurisdiction, by the court, of the subject-matter upon the theory that the truth lies upon his side of the controverted fact.</p> <p>2. Injunctions—when hill of complaint sufficient. A bill of complaint which is informal, recites evidential facts and is unnecessarily verbose is nevertheless, sufficient to support an injunction granted thereon if the evidence in effect and substantial requirements authorize the issuance of such injunction.</p>

<p>Action in debt. Appeal from the Superior Court of Cook county; the Hon. Geobge A. Dtjpuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.</p>

<p>Negligence—when doctrine res ipsa loquitur does not apply. The doctrine res ipsa loquitur does not apply in favor of a servant injured by a gasoline explosion which occurred upon a sleeping car in which, with the aid of a fellow-servant, he was engaged in cleaning the carpets.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Henby C. Beitleb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

Action in case for death caused by alleged wrongful act. Error to Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.

Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook County; the Hon. Julian .W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

<p>Divorce. Error to the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.</p>

<p>1. Bonds—quantum of proof in action upon fidelity bond. In a civil action upon a fidelity bond, recovery may be had upon proof establishing the plaintiff’s ease by a preponderance of the evidence.</p> <p>2. Bonds—when proof sufficient to sustain action upon fidelity. Held, that the evidence in this case, which showed the unexplained departure of an employe without making an account of the funds in his possession was sufficient to sustain the judgment in favor of the employer upon a fidelity bond.</p>

<p>Attachment. Error to the Circuit Court of Cook county; the Hon. Mubbay F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>1. Appeals and errors—effect of absence of certificate of evidence. If there is no certificate of evidence contained in the transcript, a decree in chancery must be sustained, if at all, upon the findings appearing on the face of the decree. A general finding that the material allegations of the bill of complaint are true must be ignored as valueless.</p> <p>2. Fees and salaries—how statutes relating to public offices construed. All statutes relating to public offices must be read in pari materia with the other statutes providing for compensation and fees for the incumbents of such public offices, and in so considering the various statutes relating to public offices and the compensation of the incumbents, the courts will not close their eyes to the effect of provisions intended to give public officers reasonable compensation for their services.</p> <p>3. Fees and salaries—status of special state’s attorney. A special state’s attorney duly appointed, so long as he may continue in office is to be placed upon the same footing with regard to fees and salaries as is the state’s attorney regularly elected.</p>

<p>1. Injunctions—when consideration of uncontroverted facts not erroneous. Weld, that it was not error for the court to consider uncontroverted evidence of facts not set up in the bill of complaint upon a motion to grant a temporary injunction and a cross motion to dismiss.</p> <p>2. Injunctions—when dismissal of bill proper. When it appears upon a motion for a temporary injunction and a cross motion to dismiss the bill for want of equity that the bill cannot be maintained on final hearing, a dismissal of such bill .may properly be ordered.</p> <p>3. Res judicata—when proceeding by one taxpayer concludes another. An adjudication upon a bill filed by one taxpayer in behalf of all taxpayers is conclusive against a later bill filed by another taxpayer on behalf of all taxpayers.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. William N. Cottbell, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>1. Appeals and errors—when wit of error does not lie. A writ of error does not lie by one party to a judgment which is joint as against himself and another.</p> <p>2. Garnishment—when garnishee subject to jurisdiction. If garnishees appear in person and by counsel and urge their defense upon the trial of the cause they are thereby subject to the jurisdiction of the court and a personal judgment may he rendered against them.</p> <p>3. Municipal Court—propriety of judgment in garnishment. The Municipal Court has power in rendering a judgment in" a garnishment proceeding to make a just and equitable disposition of the rights of the parties before the court.</p>

<p>1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Contracts—what sufficient consideration to support guaranty. The acceptance of an order for the payment of money and the payment of money which was not obligatory, are sufficient consideration to support a contract of guaranty.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Oscab M. Tobeison, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Negligence—what essential to establish. Held, in this case, that in order to entitle the plaintiff to recover, the burden was upon him to show that the turning over of a rail by hand was not reasonably safe, and that he was, when injured, in the exercise of reasonable care for his own safety, and that such burden was not successfully carried.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge,- presiding. Heard in this court at the October term, 1908.</p>

<p>Verdicts—when set aside. A verdict will be set aside on review where clearly and manifestly against the evidence.</p>

<p>1. Appeals and errors—upon what finding must he predicated. It is the duty of the trial judge to decide a case on the evidence uninfluenced by his recollection of the testimony given by any witness on the trial of another cause.</p> <p>2. Appeals and errors—what not considered in determining propriety of finding. The appellate court will not look into the remarks of the trial judge set forth in the bill of exceptions to ascertain what led him to the conclusion that judgment should be given for the party in whose favor it was rendered.</p> <p>3. Appeals and errors-—what cannot he urged as error. A party cannot complain of the act of the trial judge as error which act was brought about by some action of his own.</p> <p>4. Appeals and errors—when finding of court not disturbed. The finding of fact by a trial judge will not be set aside as against the evidence unless clearly and manifestly so.</p>

<p>Action,in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. ■ Heard in this court at the October term, 1908.</p>

<p>Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Objections to administrator’s report. Appeal from the Cricuit Court of Wabash county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the August term, 1908.</p>

Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Movers, judge, presiding. Heard in this court at the August term, 1908.

<p>1. Pleading—when non est factum inappropriate. A plea of non est factum is not a proper plea to interpose to an action upon a bond ■which was returned to and filed in a court of record so as to become a part of the records of such court.</p> <p>2. Bastardy-—effect of judgment in, upon right of action upon forfeited bond for appearance. There can be only one recovery under the Bastardy Act for the cause set out in the complaint and when the defendant appears in court and a recovery is had against him and he submits to the judgment of the court, either by paying the money or giving the bond provided for by the statute and the order of the court, or in default of the same is committed to jail, the object of the statute so far as the charge of bastardy is concerned has been accomplished and another judgment should not be rendered against the party accused and his bondsmen for an amount which includes in effect a judgment for the same cause for which the former recovery was had; but damages may have accrued by reason of the failure of the accused person to appear as provided for by his bond for appearance in court, for which, in case of forfeiture, judgment may properly be rendered against him.</p> <p>'3. Recognizances—what sufficient to sustain judgment. The introduction of the bond which has been filed in court and become a part of its records, together with a judgment of forfeiture entered thereon, is sufficient to sustaiñ a judgment.</p> <p>4. Recognizances—construction of condition. If the condition of the bond is that the defendant is to appear at the next county court to answer to the charge and not to depart the court without leave, the obligation of the principal is that he remain in attendance on court during the whole term unless excused from so doing by the court.</p>

Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1909.

Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the February term, 1909.

Action commenced before justice of the peace. Appeal from the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the February term, 1909.

<p>Landeokd and tenant—when relation not established. Held, that the trial court was justified in holding that the proof failed to show the relation of landlord and tenant existed between the parties to this suit at the time the action was commenced and that therefore no recovery could be had.</p>

<p>Contracts—what riot varying hy parol. The rule which precludes the varying of a written contract by parol is not violated if a separate independent oral contract is established.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1909.

<p>1. Wills—how construed. While it is true that a testator is presumed to use the words in which he expresses himself in their strict and primary acceptation and ordinary sense, yet it is also true that in ascertaining the intention of the testator effect must be given to all the language used, if it can be done, and likewise the court will look at the state of the property devised in endeavoring to ascertain from the language used the testator’s intention.</p> <p>2. Wills—“money” and “cash money” construed. The word “money” as used in a will in reference to the residue of the personal property after the payment of legacies and debts, has often been held to include promissory notes. Held, in this case, that the words “cash money” included money loaned and evidenced by notes and mortgages.</p>

<p>Rjjxkoads—when obligation to fence, etc., to be determined as a question of fact. Held, under the evidence, that it was a question of fact to be determined by the jury as to whether or not the railroad company, defendant, was under an obligation to erect and maintain fences or cattle-guards at the place where the accident in question occurred; it bein'g contended by such company that the part of the track where the accident occurred was within the limits of its depot grounds and needed for station and depot purposes, etc., and that, therefore, under the law which does not require tracks so situated to be protected, it was not necessary that fences or cattle-guards be maintained.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. Chabi.es T. Moobe, Judge, presiding. Heard in this court at the February term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Fayette county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1909.

•Action in case for personal injuries. Appeal from the Circuit Court of Randolph county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1909.

<p>Instructions—particular phrase held not erroneous. Held, that the use of the phrase “and you should so find” in the instruction complained of, did not constitute such error as required a reversal.</p>

<p>Insueance—what not material to risk as a matter of law. While it is true that no recovery can be had upon a life policy of insurance which is obtained by fraud and misrepresentation on the part of the insured as to the material representations affecting the risk, yet the authorities dg not go to the extent of holding that in g, cgse where statements and answers were made by an applicant for insurance to the representative of the company or association concerning matters of family history, in good faith, believing them to be true, that such answers or statements must in all cases be taken and considered material, as a matter of law.</p>

Action in case for malicious prosecution. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1909.

<p>1. Common carriers—when obligations become those of warehouseman. .When a common carrier places freight cars on its team tracks and notifies the consignees of their arrival and then holds them for inspection and sale by the consignees while waiting the further orders of the consignor, the obligations of the common carrier have been reduced to and become those of a warehouseman.</p> <p>2. Railroads—when not liable for extortion as to freight charges. Held, under the evidence .in this case, that the defendant company was not liable for a penalty of treble the amount of freight charged as provided in sections 124, 125 and 129 of the Railroad Act.</p>

Action in case for personal injuries. Error to the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1909.

<p>Assumpsit. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February' term, 1909.</p>

<p>Action in case. Appeal from the Circuit Court of Randolph county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1909.</p>

<p>1. Chancery—when will not supersede jurisdiction of court of law. Where a court of law has first acquired jurisdiction, a court of equity, even though its jurisdiction, is concurrent, will not oust the court of law of its jurisdiction, unless there are defenses unavailable at law, or unless there is some equitable circumstance in the case of which one of the parties cannot avail himself.</p> <p>2. Chancery—when hill for discovery does not lie. Equity will not take jurisdiction of a bill for a discovery and to enjoin the prosecution of suits at law where all the evidence sought to be obtained and all the defenses relied upon are available in such actions at law.</p> <p>3. Chancery—when hill for discovery does not lie. A bill for a discovery does not lie where the documents sought to be discovered may be required to be produced under the provisions of the Evidence Act.</p> <p>4. Chancery-—when does not take jurisdiction to avoid multiplicity of suits. It is only where a party prosecutes or defends against a great number of suits, or defends against a great number of persons, or where a great number of persons prosecute or defend a right against a single individual, that a bill will lie to prevent a multiplicity of suits, and even then the party must establish his right at law, if it is a legal one, before he can resort to chancery.</p>

<p>1. Landlord and tenant—effect of leasing for indefinite time. A contract of leasing made for an indefinite time, as “until the demised premises shall be leased to another,” creates a • tenancy at will.</p> <p>2. Landlord and tenant—notice essential to terminate tenancy at will. In order to terminate a tenancy at will where the rent is payable by the month, a thirty days’ notice is required, which must be given not later than the last day of the month preceding the month at the end of which the tenancy is sought to be terminated; such a notice should specify the day on which the premises are required to be vacated.</p>

<p>1. Pleading—when common counts sufficient. When a contract sued upon has been fully performed on the plaintiff’s part and nothing remains to be done under it except for the defendant to pay whatever money is due from him, the plaintiff has the election to declare specially on the contract, or generally in indebitatus assumpsit under the comment counts.</p> <p>2. Corporations—what not ultra vires. Reid, that a contract by a coal company for the services of a physician to treat one of its employes injured while working in its mines, was not ultra vires.</p> <p>3. Corporations—who cannot urge defense of ultra vires. A private corporation cannot avail itself of the doctrine of ultra vires when the contract has been in good faith fully performed by the other party, and the contract has had the benefit of the contract and the performance.</p>

<p>1. Railroads—degree of care required at public crossings. The degree of care required of railroads at public crossings depends upon the facts and circumstances of each particular case, and is peculiarly a question for the jury.</p> <p>2. Contributory negligence—what not, as a matter of law. Failure to look and listen before crossing a railroad track cannot be said in every case to be negligence as a matter of law.</p> <p>3. Instructions—must not invade province of jury. An instruction is properly refused which invades the province of the jury.</p> <p>4. Instructions—when sufficiently specific upon question of negligence. An instruction which tells the jury that if they believe from the evidence that the plaintiff has proved his case as laid in the declaration they will find the issues for the plaintiff, is not subject to objection.</p> <p>5. Trial—what papers should not be talcen by jury upon retirement. The pleadings should not be sent out with the jury with their instructions.</p>

<p>Action in case. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the February term, 1909.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the February term, 1909.

<p>Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1909.</p>

<p>Evidence—how proof of whereabouts of party made. It Is not competent to prove the whereabouts of a party at a particular time by testimony as to the fact that a letter had been received from him from a particular place at such time. The letter itself, with the envelope and postmark, should be introduced.</p>

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

Action commenced before justice of the peace. Appeal from the County Court of Effingham county; the Hon. Michael O’Donnell, Judge, presiding. Heard in this court at the February term, 1909.

<p>Assumpsit. Error to the Circuit Court of Marion county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the February term, 1909.</p>

<p>Assumpsit. Appeal from the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding. Heard in this court at the February term, 1909.</p>

Petition for revocation of letters of administration. Appeal from the Circuit Court of Richland county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the February term, 1909.

<p>Proceeding by information. Appeal from the County Court of St. Clair county; the Hon. John B. Hat, Judge, presiding. Heard in this court at the February term, 1909.</p>

Action in case for death caused by alleged wrongful act. Appeal from, the Circuit Court of Crawford county; the Hon. E. E. Newliií, Judge, presiding. Heard in this court at the February term, 1909.

<p>1. Nuisances—what permanent structure. Held, that the railroad embankment in question in this case was to be regarded as a permanent structure.</p> <p>2. Nuisances—what damages may he recovered in action for injury to real property arising from construction of permanent nuisances. Even though no physical disturbance of the plaintiff’s soil has resulted from the erection of a railroad embankment, yet if such embankment is so constructed as to constitute a nuisance and to be permanent in character, the plaintiff is entitled to maintain an action in which he may recover past, present and future damages.</p>

<p>Bill for injunction. 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, 1908.</p>

<p>Insurance—when failure promptly to pay premium causes policy to lapse. If a contract of accident insurance is for a limited or indefinite period and expires from time to time, subject to renewal at the option of both parties, by the failure to pay an additional premium, essential to the renewal of the insurance, causes a lapse of the policy.</p>

<p>1. Insurance—when defense arising as result of violation of law not established. If the defense is predicated upon a provision in the certificate to the effect that if the death of the member “shall occur in consequence of any violation or attempted violation of the laws of any state, territory, province or country,” the same must be established by a preponderance of the evidence, and each and every element which constituted the crime charged must likewise be established by a preponderance of the evidence.</p> <p>2. Insurance—when declarations of insured competent. A member holding a benefit certificate continues a party to the contract until death ensues, and a material statement by such a member as to acts which tend to show the cause of resulting death are competent as admissions against interest.</p>

<p>Appeals and errobs—when final judgment rendered an review. If the cause has been tried by a court without a jury, and the Appellate Court finds the judgment rendered against the evidence, a final judgment may be rendered by it and the cause not remanded.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Municipai Court—when hill of exceptions not stricken. Held, that while the certificate to the bill of exceptions in question was subject to criticism, it was, however, sufficient, and, therefore, the motion to strike should be denied.</p>

<p>Bill for injunction. Error to the Circuit Court of Cook county; the Hon. Lockwood Honoee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Error to Municipal Court of Chicago; the Hon. Charles N. Goodhow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Replevin—when lies "by vendor in conditional sale contract. If merchandise is sold under a conditional sale contract, title being retained by the vendor until payment in full shall be made, failure to make such payment entitles such vendor .to maintain replevin to recover such merchandise.</p>

<p>Replevin. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; "the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

<p>Verdicts—when set aside as against the evidence. A verdict clearly against the preponderance of the evidence will be set aside on review, unless the impropriety of the verdict is merely as to the amount thereof, in which case a remittitur will be required as a condition of affirmance.</p>

<p>Landlord and tenant—provision of lease as to supplying of light construed. Held, under the terms of the lease in question in this connection, that the landlord was not obligated to purchase current from an outside source and furnish it to the tenant, hut that in the event of the landlord’s temporary inability to furnish current by reason of accident, etc., he was given a reasonable time in which to make repairs, and that if he made such repairs and resumed the supply of current within a reasonable time, no obligation attached against him.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

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

<p>1. Mechanics’ lien—what essential to joint judgment against owner and contractor. Under section 28 of the mechanics’ lien law, the subcontractor must prove that he is entitled to a lien on the premises in question in order to entitle him to a joint judgment against the owner and contractor.</p> <p>2. Mechanics’ lien—erroneous to render judgment for attorney's fee. Eeld, that the rendition of a judgment for attorney’s fee in an action brought under the mechanics’ lien act is erroneous.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Personal injuries—who liable for violation of ordinance. In an action for an injury resulting from the violation of an ordinance regulating protection to be afforded where buildings are Being erected, repaired, altered or removed, it is the owner or the general contractor having supervision or control of the building in question who is liable.</p>

<p>1. Landlord and tenant—when estoppel to question validity of lease arises. If a lease is defectively executed on the part of the lessor, the lessee, by accepting it and in virtue of its condition taking possession of the premises demised and paying rent therefor in accord with its terms, is estopped to challenge the method of its execution by the lessor.</p> <p>2. Landlord and tenant—effect of assignment to validate execution. A defective execution by the lessor is validated by the assignment under seal of the lease by the lessee.</p> <p>3. Corporations—what does not invalidate execution by. The execution of a lease by a corporation is not invalidated because the corporate seal does not exactly correspond with the corporate name.</p> <p>4. Municipal Court—when plea of set-off inappropriate. A plea of set-off is inappropriate if not conformable to the practice regarding the particular class of cases in which it is filed.</p> <p>5. Municipal Court—when judgments not subject to review. In the manner of review the Appellate Court has yielded its judgment to the observance of the distinctions as to the classes of actions under the Municipal Court Act, and denied the right to such review where the plaintiff in error has failed to invoke the court’s jurisdiction within the time provided for in cases of the fourth class.</p>

Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the October term, 1908.

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon.' John W. Houston, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Appeals and erbors—when finding set aside. The finding of the court when against the evidence should be set aside upon review.</p>

<p>Appeals and errors—when questions cannot he raised in Appellate Court. The question of the validity of an act of the Legislature cannot be urged on review in the Appellate Court.</p>

<p>1. Contracts—when custom, controls. It is proper for the jury to find that an architect is entitled to recover for his services at the usual and customary rate of charge, if the evidence tends to establish that his services were reasonably worth such an amount.</p> <p>2. Trial—when contention of counsel not ground for reversal. Held, that the asking of the following question: “You had some difficulty, did you not, with non-union labor concerning the filling under that floor?” though not pertinent to any issue in the case, did not constitute such conduct as would justify a reversal where the question was objected to and the objection immediately acquiesced in by counsel asking the objectionable question.</p>

<p>Suretyship—when past consideration "binds guarantor. As a general rule, the consideration which hinds a guarantor or surety must he executory, but when the thing was done at the request of the surety or guarantor, a past consideration hinds him.</p>

<p>1. Municipal Court—when additional report unauthorised. Meld, that the additional report filed in this case designed as supplementary to the statement of facts previously signed by the judge, both instruments having been filed, was unauthorized. The manner and occasions when such an additional report may properly be signed and filed are fully set forth in the opinion.</p> <p>2. Municipal Court—what essential to review of fourth class case. To authorize such review, the trial judge must sign and place on file in the case “either a correct statement of facts appearing on the trial” or a “correct stenographic report of the proceedings at the trial.” When neither of these alternative provisions is observed, and the document filed is not such as will enable the Appellate Court to ascertain whether the judgment is contrary to the law and the evidence or resulted from substantial errors of the court, judgment Will be affirmed.</p>

<p>Forcible detainer. Error to Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Actions and defenses—when proof of joint liability need not be made. In the absence of pleas or affidavit by the defendants denying joint liability, no obligation arises upon the plaintiff in the first instance to prove such joint liability.</p>

<p>Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1908.</p>

Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in this court at the October term, 1908.

<p>Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. Heard in this court at the October term, 1908.</p>