Volume 154 — Illinois Appellate Court Reports

<p>Bill for injunction. Appeal from the Circuit Court Woodford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term, 1909.</p>

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Winnebago county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in this court at the October term, 1909.

Criminal prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Boone county; the Hon. William C. DeWolf, Judge, presiding. Heard in this court at the October term, 1909.

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Boone county; the Hon. William C. DbWolf, Judge, presiding. Heard in this court at the October term, 1909.

Prosecution for unlawful salé of intoxicating liquor. Error to the County Court of Winnebago county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in this court at the October term, 1909.

<p>Action in case. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>1. Fraternal benefit societies—effect given to insurance contract. If the contract between the society and the member is free from ambiguity, whether reasonable or unreasonable it will be enforced by the courts.</p> <p>2. Fraternal benefit societies—burden of proof to show deductions to be made from face of policy. If the contract between the member and the society provided for certain deductions to be made in the event of such member’s not living out her expectancy of life and if the amount of such deduction can be arrived at by mere computation and the proof is equally in the possession of each of the parties to the litigation, the obligation is upon the plaintiff to supply such proof in order to show how much he is entitled to recover under the certificate in suit.</p> <p>3. Fraternal benefit societies—what does not render statements in application warranties. The mere fact that the words “warranties” and “warrant” occur in the printed portion of a benefit certificate and of the application, does not necessarily render the statements made by the insured in the application warranties. Eeld, in this case, that in view of all the language used in the certificate and the application, that the statements made by the insured were merely representations and not warranties.</p> <p>4. Evidence—who may testify as to state of health. Opinions may be given by non-expert witnesses as to the state of health, hearing or eye sight of another, etc.</p>

<p>Divorce. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Bill in equity. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1909.</p>

Bill for injunction. Appeal from the Circuit Court of Lake county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>Assumpsit. Appeal from the City Court of Aurora; the Hon. E. M. Mangan, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1909.

<p>Appeals and ebrobs—when nothing presented for review. In a case tried before the court without a jury there is nothing presented for review if no rulings were made by the court and excepted to by appellant, if no propositions were presented by the appellant which were refused by the court, and if the bill of exceptions does not show an exception to the finding and judgment of the court.</p>

<p>Appeals and errors—when finding of court not subject to review. In the absence of a submission of special findings of fact and propositions of law there is nothing left for the Appellate Court to determine other than the sufficiency of the evidence as a whole to sustain the finding and judgment appealed from.</p>

<p>Distress for rent. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Whiteside county; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1909.

<p>1. Gambling—section 182 of Criminal Code construed. If a depositor in a bank loses money in bucket shop gambling and pays his losses by checks on such bank, even though such bank knows of the purpose for which such checks are drawn it may pay the same without incurring liability to such depositor under section 132 of the Criminal Code, as such' bank is not a “winner” within the meaning of such section.</p> <p>2. Gambling—within what time action must he brought by loser under section 132 of the Criminal Code. By virtue of this statute a loser must bring his action within six months from the loss and failing within such time to commence the same, he. is thereafter forever barred.</p> <p>3. Injunctions—what essential to sustain assessment of damages upon dissolution. A certificate of evidence showing the evidence upon which the assessment of damages upon dissolution was predicated or else a finding of facts is essential in order to sustain such an assessment.</p>

<p>Action in case. Appeal from the Circuit Court of Kankakee county; the Hon. Albert O. Marshall, Judge, presiding. Heard in this court at the April term, 1909.</p>

Motion to set aside appraisement, etc. Appeal from the Circuit ' Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1909.

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

Petition for letters of administration. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1909. Statement by the Court. Joseph Hutchings died-on the 28th day of June, 1907, at his residence in Grundy county, seized of 320 acres of land and possessed of personal estate amounting to about $7,000, leaving what purported to be a last will in which John J. Hutchings, his son, was named as executor.

<p>Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the April term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooker, Judge, presiding. Heard in this court at the April term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>Schools—power of directors to make contracts to haul children to school. School directors have no power to hire wagons and make contracts for the hauling of children to school.</p>

<p>Bill of review. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1908.</p> <p>Statement fey the Court. This is a bill of review brought on April 4,1908, by Eosalie B. Griswold, personally, and as executrix under the will of Sylvia E. Burnham, deceased, Henrietta Yanderpoel, George E. Dawson, as trustee, James H. Van Ylissingen and the Winthrop Harbor & Dock Company against William C. Heinroth and numerous other defendants, seeking to review a decree entered April 6, 1903, on a bill to foreclose a mortgage and trust deed in the Circuit Court of Lake county. The bill of review was removed from the files of the court by unknown parties and cannot be found, but a copy was supplied by leave of court. The complainants were unable to set forth in the bill of review, the bill in the original foreclosure proceedings, for the reason it also had been removed from the files by unknown parties, but in lieu of the bill what is alleged to be an abstract of it, from the records of the Lake County Title & Trust Company, is set forth in the bill. The defendants in an affidavit filed by. them on a motion to dismiss the bill of review produce what is sworn to be an exact copy of the original bill of foreclosure. .</p> <p>The facts material to the bill of review out of which this litigation arose are: On December 28, 1902, William J. Knight executed a note payable to Wm. M. Hoyt for the sum of $20,000, the payment of which was secured by a mortgage of the same date, recorded December 29, 1892, conveying to Hoyt as mortgagee, lot two, the east fraction of lot one, and the west half of lot one of fractional section two, being all of fractional section two; also all of fractional section eleven, all in township forty-six, range twelve, in Lake county, which will hereinafter be designated as the “Knight lands.” Subsequent to 1892, Knight conveyed his equity to the Winthrop Harbor & Dock Company, , which assumed the payment of the $20,000 note. Prior to the year 1900, the Winthrop Harbor & Dock Com- . pany which will hereinafter be designated as the “Dock Company” had acquired title to other real estate, contiguous to the Knight lands, which will be hereinafter designated as the “subdivided lands.”</p> <p>On March 13, 1900, the Dock Company executed sixteen principal promissory notes, payable to the order of itself five years after date, for amounts varying from $500 to $4,500 each. Each of these notes was secured by a trust deed of the same date on parcels of the subdivided lands, a separate trust deed securing each note; these trust deeds were recorded May 5, 1900. Sylvia E. Burnham was the indorsee and owner of six of these notes, and Rosalie B. Griswold was the indorsee and owner of the remaining ten, notes, all of which were unpaid at the time of foreclosure.</p> <p>On June 11, 1900, the Dock Company executed three principal notes, one for $7,500, one for $10,000 and one for $12,000 each payable to the order of itself, indorsed by the Dock Company and due five years after date. It is alleged in the bill of review that these notes, at the time of the beginning of the foreclosure suit, were the property of Henrietta Yanderpoel, and that she was the unknown owner of them at that time. The $7,500 note was secured by a trust deed to the Security Title & Trust Company, as trustee, on all of fractional section two of the Knight lands. The $10,-000 note was secured by a trust deed to the same trustee on the north half of fractional section eleven of the Knight lands. The $12,000 note was secured by a trust deed to the same trustee on the south half of fractional section two of the Knight lands. These trust deeds were all recorded July 18,1900.</p> <p>On October 1, 1900, the Dock Company executed a note for $15,000 payable to the order of itself ninety days after date and twelve notes for amounts varying from $600 to $900 each payable to the order of itself ninety days after date. On November 26, 1900, the Dock Company executed twenty-eight notes, twenty-seven being for $600 each and one for $700, all payable to the order of itself March 1, 1901. These notes were all indorsed by the Dock Company. At the time of the beginning of the foreclosure suit Rosalie B. G-riswold and Sylvia Burnham were the unknown owners of the twelve notes, each owning part of them, and Caroline Both was the unknown owner of the twenty-eight notes. On January 31, 1901, the Dock Company, to secure the $15,000 note dated October 1, 1900, on which $2,875.55 had' been paid, the twelve notes dated October 1, 1900, the twenty-eight notes dated November 26, 1900, the Knight note for $20,000 dated December 29, 1892, on which $5,000 had been paid, and some other notes which it is not necessary to describe here, executed a trust deed to William T. Underwood conveying to him as trustee certain subdivided lands. This trust deed was recorded February 12, 1901. The Underwood trust deed does not mention the $7,500 note, the $10,000 note or the $12,000 note, which together with the $15,000 note are in the bill of review alleged to be held by Henrietta Yanderpoel.</p> <p>The Knight note was assigned by Hoyt to William C. Heinroth as trustee, who assigned it to Leon Nubling, who assigned it to Louisa W. Foley as security for a debt of $5,000. The Dock Company appears to have sold lots both in the Knight lands and in the subdivided lands, and releases were made from time to time of lots that were covered by the Knight mortgage and lots included in the Underwood trust deed, but no question is raised concerning such releases or sales on this appeal.</p> <p>The foreclosure bill was filed by Louisa W. Foley to foreclose the Knight mortgage and the Underwood trust deed. While the .original foreclosure suit was pending Louisa W. Foley died and Elizabeth H. Heinroth and David T. Foley, her executors, were substituted as complainants. Among the parties made defendants to the foreclosure bill are Rosalie B. Gris-wold, Sylvia E. Burnham, Henrietta Yanderpoel, James H. Yan Ylissingen (who was the president of the Dock Company and appears to have executed all the various instruments executed by that company), the Winthrop Harbor & Dock Company, the Security Title & Trust Company, the unknown owner or holder or owners or holders of one principal note for $7,500 payable five years after date, dated June 11, 1900, made by the Winthrop Harbor & Dock Company payable to itself and indorsed by it, the unknown owner, etc., of the $10,000 note, the unknown owner, etc., of the $12,000 note, the unknown owner, etc., of the twelve notes dated October 1, 1900, the unknown owner, etc., of the twenty-eight notes dated November 26,1901, the unknown owner, etc., of the $15,000 note dated Octoher 1, 1900, and the unknown owner, etc., of the several notes mentioned. Each and all the notes were particularly described with the instrument securing it in that part of the original bill naming the parties defendant in the prayer for process. The original bill contains the following allegation concerning the notes secured by the Underwood trust deed: “and your oratrix avers on information and belief that all the notes secured by said trust deed have matured, and except the said note of William J. Knight have been paid.” The only allegation in the bill concerning the $7,500, the $10,000 and the $12,000 notes is what may be inferred from the following allegation, with the naming of the defendants in the prayer for process: “Tour oratrix further alleges on information and belief that subsequently to the execution, acknowledgment and recording of said mortgage deed and trust deed certain rights and interests in and to the lands or a part of them described in said mortgage deed and said trust deed were created and transferred as follows : * # * On or about June 11, 1900, said Winthrop Harbor & Dock Company executed three deeds each purporting to convey certain premises unto Security Title & Trust Company in trust to secure the payment of certain notes.” After describing the parties the bill proceeds “but your oratrix alleges that the interest of said parties, if any they have, or of any of them, is subsequent and subject to the liens of your oratrix and the defendants entitled to the proceeds of the notes described in said mortgage deed and said trust deed under and by virtue of said mortgage deed and said trust deed.” The bill waives the oath to the answer except that the defendants may be required to state under oath, (1) “The names and addresses of each and every the legal holders or owners of or parties interested in the notes described in said trust deed to William T. Underwood, trustee, set out above;” (2) seriatim and in detail the amount and dates of each and every payment on each of said notes, * * *; (3) “the amounts of principal and interest on each and every of said notes due and unpaid and not due and unpaid.”</p> <p>The bill of review alleges that an answer was filed by Henrietta Vanderpoel jointly with other defendants but does not set forth her answer, and that a default of the defendant Vanderpoel was improperly taken after her answer was filed. The absence of the an°swer from the bill of review is accounted for by an . affidavit embodied in the bill, made by John L. Bolen, an attorney, who swears he represented her in the original suit; that he was directed to file an answer for her and that he, as a member of the firm of Bolen & Stewart, did file an answer for her jointly with defendants, the Dock Company, Van Vlissingen and others, but that it had been removed from the files. A replication was filed to a joint and several answer of several defendants naming among such defendants, the Dock Company, Van Vlissingen and Henrietta Vanderpoel. It is however admitted by counsel for Henrietta Vanderpoel in their printed argument that she did not join in the joint answer, but that her name was inadvertently omitted from the answer. She, together with the Security Title & Trust Company, the unknown owners of the $7,500, the $10,000, the $12,000 and the $15,000 notes, was defaulted and the cause was referred to the master, who reported the evidence with his conclusions. The report of the master shows that Bolen & Stewart appeared before the master for the Dock Company and others, but the name of Vanderpoel is not mentioned among the defendants they appeared for. A decree was entered on the report of the master ordering a foreclosure and the payment to the executors of Louisa W. Foley of $5,170.57 and the balance of the proceeds up to $19,912.80 paid to William C. Heinroth as trustee for Nubling, and the surplus if any paid to Caroline Both up to the sum of $18,951.16; and finding that Sylvia E. Burnham had a prior lien for the amount of six notes dated March 13, 1900, on certain portions of real estate described in the Underwood deed by virtue of six prior conveyances to the Security Title & Trust Company and that Eosalie B. Q-riswold had a lien prior to complainant by virtue of ten conveyances to the Security Title & Trust Company severally securing ten notes of date March 13, 1900.</p> <p>The bill of review is not verified and was filed with-0 out leave of court. The defendants made a motion to dismiss the bill on the ground that a bill of review cannot be maintained by a party to a decree against whom it was entered pro confesso and that the fact disclosed by the bill of review upon which she bases her right to review is that she was at the time of the entering of the decree sought to be reviewed, and now is, the owner of the four notes for $7,500, $10,000, $12,000 and $15,000, a fact not disclosed in the original suit, and therefore not disclosed by the record in the suit sought to be reviewed, and that therefore the bill was erroneously filed in violation of the well-established practice in cases of this character.</p> <p>The defendants filed an affidavit of John L. Bolen stating that, since making the affidavit which is attached to the bill of review, he has seen the original answer filed by him in the original foreclosure suit of Foley v. the.Winthrop Harbor & Dock Company and attaches to the affidavit a copy of that answer, from which it appears that he neglected to answer for Henrietta Vanderpoel; also an affidavit of one of counsel for the defendants, with a copy of the original bill of foreclosure, of which the original was lost, and of which complainants in the bill of review only claim to have set forth an abstract obtained from a private abstract company without any showing as to its authenticity.</p> <p>The complainants in the bill of review moved to strike the affidavits filed by the defendants from the files. This motion the court overruled. The court then dismissed the hill of review as to complainants Vanderpoel, Van Vlissingen, the Winthrop Harbor & Dock Company and George E. Dawson and overruled the motion to dismiss as to Bosalie B. Griswold personally and as executrix of Sylvia E. Burnham, Henrietta Vanderpoel appeals from that order.</p>

<p>1. Administration of estates—what personal property. Moneys due upon • contracts for the sale of real estate made by a deceased party are to be considered a part of his personal estate even though no deed has been executed.</p> <p>2. Principal and agent—when death does not revolee power. Beld, under the facts of this case, the right to make delivery of a deed of real estate was more than a naked power and was not revoked by the heath of the principal.</p> <p>3. Principal and agent—how payments must he made hy one dealing with an agent. A person dealing with an agent and knowing the extent of that agent’s authority with respect to receiving payment, in order to protect himself must make payment to such agent in such manner as conforms to the authority of such agent, but in equity, under the doctrine of subrogation, any payments made in a manner not conformable to the agent’s authority, will be applied to the credit of the person making the same in so far as it appears that such payments have reached the proper source.</p> <p>4. Wills—what testamentary disposition void. A direction to make distribution after death is void under the statute of wills if such statute is not complied with in ■ making such direction.</p> <p>5. Accounting—when case should he referred to master. If it appears during the course of a chancery proceeding that a complicated account is to be stated, the court should refer the cause to a master to state such account.</p> <p>6. Jurisdiction—when, of court of chancery, cannot he questioned. A party who has invoked the jurisdiction of chancery with respect to a particular subject-matter, cannot attack the jurisdiction of such court in exercising jurisdiction with' respect to such subject-matter.</p>

<p>Assumpsit. Error to the Circuit Court of Lake county; the Hon. Robert W. Weight, Judge, presiding. Heard in this court at the April term, 1909.</p>

Bill in chancery. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldrbdge, Judge, presiding. Heard in this court at the April term, 1909. Statement by the Court. This is a bill in chancery filed by Caroline Moore, Frank. Brandenburg, George Brandenburg and Mary Jones, against Catherine Brandenburg, Christian Brandenburg, Ruby Brandenburg and Raymond Brandenburg.

Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibell, Judge, presiding. Heard in this court at the April term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibeix, Judge, presiding. Heard in this court at the April term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1909. Certiorari denied by Supreme Court (making opinion final).

BUI in equity. Appeal from the Circuit Court of Lake county; the Hon. Chakles H. Dokreley, Judge, presiding. Heard in this court at the April term, 1909. Statement by the Court. The city of Lake Forest is a municipal corporation.

Action in debt. Appeal from the Circuit Court of Stephenson county; the Hon.1, R. S. Fabbakt, Judge, presiding. Heard in this court at the April term, 1909. Statement by the Court.

Action of debt. Appeal from the Circuit Court of Stephenson county; the Hon. R. S. Fakrahd, Judge, presiding. Heard in this court at the April term, 1909. Statement by the Court.

Action in case for personal injuries. Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1909.

<p>Bill in chancery. Error to the Circuit Court of Lake county; the Hon. Chaei.es H. Donnelly, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Bill in chancery. Error to the Circuit Court of Lake county; the Hon. Chables H. Donnelly, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action in case for personal injuries. Error to the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding. Heard in this court at the October term, 1909.

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Boone county; the Hon. Anthony Clarity, Judge, presiding. Heard in this court at the October term, 1909.

Mandamus. Error to the Circuit Court of Iroquois county; the Hon. Albebt O. Marshall, Judge, presiding. Heard in this court at the October term, 1909. Statement by the Court.

<p>Injunctions—When hill does not state case justifying the restraining of the obstruction of a street by hacks, etc. Held, that the hill of complaint in this case did not state such a case as showed that the use of a portion of a street as a hack stand, etc., was unlawful or constituted a nuisance, and that the dismissal of the hill was proper.</p>

<p>Divorce—when condonation of adultery not established. To establish condonation by the husband of adulterous conduct by the wife a reconciliation followed by cohabitation must be shown.</p>

<p>Assumpsit. Appeal from the Circuit Court of Whiteside county; the Hon. Fbank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1909.</p> <p>Statement by the Court. This is an action of assumpsit brought in the Circuit Court of Whiteside county by William H. Harrison on a promissory note for $5,423.06 dated May 22, 1896, payable on or before five years after date with interest at the rate of six per cent per annum executed by Milton L. Thackaberry and Marcus B. Thackaberry. A praecipe for a summons to the sheriff of Whiteside county for Milton L. Thackaberry and Marcus B. Thackaberry was filed September 30, 1909, returnable to the January term, 1910. The summons was issued on September 30, against the two Thackaberrys, and was served on Marcus B. Thackaberry October 6, 1908, and a return of “not found” as to Milton L. Thackaberry was made October 12, 1908, but the summons was not filed until January 4, 1909. On October 13, a praecipe was filed for a summons for Milton L. Thackaberry to the sheriff of Cook county. This summons was served on October 14, 1908. The declaration consisted of a special count on the note declaring against the defendants- jointly and the common counts declaring against them jointly and severally. At the term to which the summonses were returnable, Marcus B. Thackaberry filed a plea in abatement averring that he was at the time the suit was brought and still is a resident of Bureau county, Illinois, and that service was had upon him while temporarily in Whiteside county, and that Milton L. Thackaberry was when the suit was brought and still is a resident of Cook county, and praying judgment if the court will take cognizance of the action. The plaintiff demurred to the plea in abatement and filed a motion to quash the summons to Cook county and the return thereon, for the reason that at the time the summons was served on Marcus R. Thackaberry in Cook county he was not residing in Whiteside county. The summons to Cook county and the return were quashed, and the demurrer to the plea in abatement was sustained. Marcus R. Thackaberry thereupon filed a plea of the general issue and two special pleas, averring that the note sued on was executed by Marcus R. Thackaberry as surety for Milton L. Thackaberry of which the plaintiff had notice, and that the plaintiff after the note became due had extended the time of payment, whereby the surety was released. Issue was joined on the general issue, and a demurrer was filed to the special pleas, stating, as special causes, that the special pleas amounted to the general issue and that the pleas do not aver any consideration or an extension to a definite time. The demurrer was sustained. Afterwards the -defendant made a motion for leave to file three special pleas of the same character as the former special pleas; this motion was overruled. The defendant then moved for leave to file four other special pleas, which motion was overruled for the reason “that all matters set up in the special pleas can be proven under the general issue.” By agreement the case was tried by the court without a jury. The court found for the plaintiff and rendered judgment for $8,187. Marcus R. Thackaberry appeals from that judgment.</p>

Petition to revoke letters of administration. Appeal from the Circuit Court of Henry county; the Hon. Emeky C. Gbaves, Judge, presiding. Heard in this court at the October term; 1909.

<p>Assumpsit. Appeal from the Circuit Court of Livingston county; ■ the Hon. Geobge W. Patton, Judge, presiding. Heard in this court at the October term, 1909.</p>

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

Forcible entry and detainer. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Gbeen, Judge, presiding. Heard in this court at the October term, 1909.

<p>Assumpsit. Appeal from the Circuit Court of Rock Island county; the Hon. F. D. Ramsay, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Appeals and ebrobs—effect of absence of assignments of error. If no assignments of error have been made on the record there is nothing presented for review. An assignment of error on the record, even though an assignment appears in the abstract, is not a mere matter of form to be considered waived, if not objected to, but one of substance.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1909.

<p>Action in ease for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1909.</p>

Motion to vacate levy. Appeal from the Circuit Court of White-side county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1909.

<p>Assumpsit. Appeal from the Circuit Court of Stark county; the Hon. L. D. Putebbaugh, Judge, presidifig. Heard in this court at the October term, 1909.</p>

<p>Action in case. Appeal from the Circuit Court of Henry county; the Hon. Embry C. Graves, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Lake county; the Hon. D. L. Jones, Judge, presiding. Heard in this court at the October term, 1909.

Bill to set aside deed, etc. Appeal from the Circuit Court Of Stark county; the Hon. L. D. Puterbaush, Judge, presiding. Heard in this court at the October term, 1909. Statement hy the Court.

<p>Bill in chancery. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1909.

<p>1. Pleading—when general issue properly strichen. A party cannot plead a tender of a part of the sum declared for and at the same time maintain a plea of the general issue to the whole declaration.</p> <p>2. Evidence—letters written with a view to compromise incompetent. Held, that a letter written by the attorneys of a party with a view of obtaining a compromise, is not competent against such party.</p> <p>3. Evidence—letters containing self-serving statements. Held, that a letter written by a party containing self-serving statement was for that reason properly excluded.</p> <p>4. Tender—when insufficient. A tender made after suit is insufficient if it does not include the costs incurred up to such time.</p> <p>5. Interest—when not recoverable. Unless the action is predicated upon a written instrument providing for the payment of money or unless the account sued for has become stated, unreasonable and vexatious delay of payment must be established in order to entitle the recovery of interest in an action of assumpsit to recover for the money demand.</p> <p>6. Appeals and errors—when remittitur appropriate. If a verdict and judgment improperly include the allowance of interest, the error may be cured by requiring the filing of a remittitur.</p>

Mechanic’s lien. Appeal from the Circuit Court of Lake county; the Hon. Robert W. Weight, Judge, presiding. Heard in this court at the April term, 1909. Statement Tby the Court. In a suit brought by appellants to establish and enforce a mechanic’s lien, a second amended bill was filed and answered by the various parties in interest after general demurrers had been overruled, and the cause was referred to a master who filed his report.

<p>Assumpsit. Error to the Circuit Court of Peoria county; the Hon. L. D. Putebbatjgh, Judge, presiding. Heard in this court at the October term, 1909.</p>

Bill in equity. Error to the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the October term, 1909. Statement by the Court. This was a bill in equity filed by Bragio Bartoletti, in behalf of himself and the other plaintiffs in error, to have a deed of certain lots therein described made to defendant in error, Henry Hoerner, declared to he a mortgage, and for the right to redeem therefrom.

<p>Stkeets—when declaration charging injury does not state cause of action. Held, that the declaration in this case did not set up a cause of action in that it did not sufficiently allege that the place where the accident occurred was a public street in the possession and control of the city.</p>

<p>1. Appeals and ebbobs—when assignments of error waived. An assignment of error not argued is deemed waived.</p> <p>2. Verdicts—when not disturbed. If two juries have found the same way the Appellate Court will be slow to disturb the second verdict as against the weight of the evidence.</p>

Assumpsit. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>1. Administration of estates—enforcement of set-off against distributee. The Probate Court has authority to determine the amount due from a distributee of an estate in course of administration and to authorize the executors to deduct, the amount of such indebtedness from the share of such distributee.</p> <p>2. Administration of estates—what constitutes advancement. Held, that a certain writing in evidence in this case was an acknowledgment that certain notes constituted advances to the signer of such writing who was a distributee of the estate in course of administration.</p> <p>3. Statute of Limitations—when no defense. The Statute of Limitations is no defense by a distributee to the setting off against his share of an advance received by him from the testator whose estate is in process of administration.</p> <p>4. Jury—when party not entitled to as a matter of right. It is not every issue arising in the probate court that entitles a party to a trial by jury.</p> <p>5. Juey-—when right waived. If a party is entitled to a jury trial his failure to demand the same operates as a waiver.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Bureau county; the Hon. R. M. Skinneb, Judge, presiding. Heard in this court at the April term, 1909. Statement by the Court. The Mineral Point Zinc Company had in the ore crushing building in its zinc plant at Depue, Bureau county, a number of elevators. They were wide belts with ore cups attached, passing over two pulleys fastened on shafting.

Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1909. Statement by the Court. William Lawton, appellee, was a coal miner employed by the Oglesby Coal Company, appellant. For some time prior to May 26, 1906, the mine had been shut down and he had been doing various jobs for appellant about the works and elsewhere above ground.

<p>Injunctions—when lie to enforce negative covenants in deeds. A valid covenant contained in a deed of real estate restricting the obstruction of a sewer will he enforced in equity by injunction against the grantee in such deed and those claiming under him.</p>

<p>Assumpsit. Appeal from the County Court of Knox county; the Hon. R. C. Rice, Judge, presiding. Heard in this court at the April term, 1909.</p>

<p>1. Negligence—violation of ordinance. The violation of a municipal ordinance is prima facie proof of negligence.</p> <p>2. Contributory negligence—failure to keep watch of children. The law does not require persons in humble station in life to keep a constant watch over their children.</p> <p>3.. Instructions—particular phrases in, where death resulted from wrongful act, approved. In such an instruction the phrases “pecuniary injuries” and “pecuniary benefit,” held, not erroneous as wider in their scope than the phrase “injuries to maintenance and support,” charged in the declaration.</p> <p>4. Verdicts—when not excessive. Held, in an action for death caused by wrongful act that a verdict for $3,000 was not excessive where it appeared that the deceased (a girl) was at the time of . her death under five years.</p> <p>5. Verdicts—when not disturbed as excessive. Verdicts in actions brought for the death of a child through wrongful act of the defendant will not be set aside as excessive unless it is clear that the same are the result of passion, sympathy or prejudice. No positive rule can be laid down by which the damages to be awarded can be estimated. In such a case the amount must largely be left to the judgment of the jury and such is the evident intent of the statute.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1909,</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Bureau county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1909. Statement Tby the Court. The Illinois Third Vein Coal Company, appellant, operated a coal mine on the long wall system, by which all the coal was removed except a block left at the shaft to support the buildings on the surface.

<p>1. Appeals and ebbobs—when bill of exceptions as at law required in chancery. "Where a party in chancery is entitled to a trial by jury as a matter of right a bill of exceptions is essential to preserve the proceedings incident to such jury trial.</p> <p>2. Appeals and ebbobs—when exceptions required in chancery. While it is the general rule that exceptions need not be taken and preserved in the trial of a chancery cause, yet exceptions should be taken to adverse rulings in a chancery cause tried by a jury where the trial by jury is a matter of right by statute.</p> <p>3. Dismissal—when complainant not entitled to, without prejudice. Where a trial by jury is a statutory right -conferred in a chancery cause, after verdict the complainant is not entitled to dismiss his bill without prejudice. ■</p>

Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1909.

<p>Bill in equity. Error to the Circuit Court of Grundy county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Contested claim in court of probate. Error to the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1909.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

Quo warranto. Appeal from the Circuit Court of Rock Island county; the Hon. William H. G-est, Judge, presiding. Heard in this court at the October term, 1909. Statement by the Court.

<p>1. Landlord and tenant—when issuance of distress warrant unauthorized. The remedy by distress is statutory and the landlord has no right to issue a warrant unless predicated upon a claim for rent and nothing else.</p> <p>2. Trial—power of court to hear cause out of order, “for good and sufficient cause.” It is within the power of the trial court to hear a cause out of its order on the docket.</p> <p>3. Practice—when failure to observe section 26 of Practice Act will not reverse. The fact that the agreement to submit a case to the circuit judge was not in writing in accordance with the requirements of section 26 of the Practice Act of 1907 will not reverse if it appears that substantial justice has been done.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscab E. Heard, Judge, presiding. Heard in this court at the October term, 1909. Reversed and remanded.

<p>1. Fraternal benefit societies—when but one liability. If there was but one membership in the society and but one set of premiums paid, there can be but one liability by the society.</p> <p>2. Interpleader—when bill lies. The equitable remedy of inter-pleader depends upon and requires the existence of the following four elements: “First, the same thing, debt or duty must be claimed by both or all parties against whom the relief is demanded; second, all their adverse titles or claims must be dependent upon or be derived from a common source; third, the person asking the relief—the plaintiff—must not have or claim any interest in the subject-matter; fourth, he must have incurred no independent liability to either of the claimants—that is, he must stand perfectly indifferent between them, in the position, merely, of a stakeholder.”</p>

Action in case. Appeal from the Circuit Court of La Salle county; the Hon. Richard M. Skinner, Judge, presiding. Heard in this court at the October term, 1909. Stricken from rehearing docket April 13, 1910.

Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1909.

<p>1. Foreclosure—who necessary parties. In a bill to foreclose a mortgage all persons interested should be made parties. A tenant in possession paying rent is a necessary party.</p> <p>2. Fobeclosube—against whom writ of assistance may issue. A writ of assistance ancillary to a decree of foreclosure can only issue against the defendants in the bill and those claiming under them after the suit was commenced.</p> <p>3. Fobeclosube—what does not cure decree erroneous because of insufficient parties having been made to the bill. If a decree in foreclosure is erroneous because a tenant in possession paying rent was not made a party defendant thereto, a disclaimer of interest by such tenant filed in the Appellate Court will not cure such decree and prevent a reversal.</p> <p>4. Fobeclosube—when allowance of solicitor’s fees erroneous. If the solicitors appearing for a complainant corporation are likewise officers and directors thereof and no provision has been made by resolution of such corporation for the payment for the services of such solicitors, an allowance of fees made to such complainant on account of the services rendered by such solicitors is erroneous.</p> <p>5. Foreclosure—when appointment of receiver not erroneous. The appointment of a receiver in a foreclosure proceeding is not erroneous where it appears that the mortgagor was out of the jurisdiction of the court; that the principal with interest thereon had matured; that the buildings covered by the mortgage had not been kept insured, nor the taxes paid, and the security was scant.</p>

<p>1. Paetnebship—when dissolution does not affect joint liability. The dissolution of a partnership does not affect the joint liability of the partners to those who have dealt with the partnership and have had no knowledge of its dissolution.</p> <p>2. Paetnebship—when admission competent; when not. Where an action is pending against two or more partners and one or more of the defendants puts the fact of partnership in issue by a proper plea, the admissions, statements or declarations of his co-defendant made in his absence in reference to the existence of the partnership are not, in the absence of other evidence tending to establish the partnership, admissible upon the issue; but where sufficient evidence has been given to raise a fair presumption that two or more persons are partners then the acts and declarations of each are admissible as evidence against the other for the purpose of strengthening the prima facie case already established.</p> <p>3. Evidence—when admission of erroneous will not reverse. The admission of incompetent evidence will not reverse if no harm has. resulted.</p>

<p>Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. R. S. Fabrand, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Putebbaugh, Judge, presiding. Heard in this court at the October term, 1909.

<p>Damages—what cannot he recovered for failure to deliver telegram. Damages which are remote, contingent, problematical, conjectural or speculative cannot be awarded for failure to deliver a telegram.</p>

<p>Replevin—when does not lie for animal taken while running at large. If an animal is taken while trespassing upon the land of another, replevin does not lie against the owner of such land so taking such animal unless a tender of at least nominal damages has been made by the owner of such animal.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibell, Judge, presiding. Heard in this court at the April term, 1909.

Action in case for personal injuries. Error to the Circuit Court of La Salle county; the Hon. R. M. Skinner, Judge, presiding. Heard in this court at the October term, 1909.

Mandamus. Appeal from the Circuit Court of Stephenson county; the Hon. James S. Batjme, Judge, presiding. Heard in this court at the October term, 1909. Statement hy the Court.

Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Cabnes, Judge, presiding. Heard in this court at the October term, 1909. Certiorari denied by Supreme Court making opinion final. Statement by the Court. The city of St. Charles advertised for bids for the construction of a concrete reservoir in connection with a system of water-works which it was building.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbentano, Judge, presiding. Heard in this court at the October term, 1908.

Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding. Heard in this court at the October term, 1908. Statement by the Court. Appellee is a lawyer practicing Ms profession in Chicago.

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

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the March term, 1910.

Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. R. W. Clieeobd, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1908.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Durov, Judge, presiding. Heard in this court at the October term, 1908.

Bill in chancery. Error to the Circuit Court of Cook county; the Hon. Chables M. Walker, Judge, presiding. Heard in this court at the October term, 1908. Statement Tby the Court.

Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Meeritt W. Pinckney, Judge, presiding. Heard in this court at the October term, 1908. Statement by the Court.

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1908.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1908.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSueely, Júdge, presiding. Heard in this court at the October term, 1908.

<p>Mandamus. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the October term, 1908.</p>

<p>Negotiable instruments—how defense of gambling consideration must be established.' A defense to cut off the financial rights of a party, unconnected with the immorality alleged to be inherent in the transaction, must be sustained by tangible proof, and not rest in surmise or conjecture.</p>

Action in case for death'caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 3908.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1908.

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the March term, 1910.

<p>Replevin—effect of special traverse of right of property. The issue made on such a plea of property in defendants does not involve the absolute ownership of the goods. It is sufficient if the plaintiff has a special interest in the property entitling him to the present possession. Under such a plea the plaintiff must recover on the strength of his own title and the burden of proof is on him to establish his right.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. ARIcOLD HuAP, Judge, presiding. Heard in this court at the October term, 1908.</p>

Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1908.

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the October term, 1908. Reversed and remanded.</p>

Action in case for death cause by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in this court at the October term, 1908.

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the October term, 1908.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagec, Judge, presiding. Heard in this court at the October term, 1908.