Volume 157 — Illinois Appellate Court Reports

<p>1. Insurance—what will not defeat recovery under burglary policy. While the manner of keeping accounts may be crude and informal, yet if the statements therein contained are accurate and will show the amount of money actually kept in a safe and from them a loss occasioned by burglary ascertained, a provision of the policy insuring against a loss by burglary is complied with which is to the effect that the company shall not be liable if the accounts of the assured are not so kept that the actual loss might be determined therefrom.</p> <p>2. Insurance—what not covered by burglary policy. A policy insuring against loss by burglary which covers money in current use in the business of the insured, does not by reasonable construction include or refer to money derived by the insured from gambling transactions.</p>

<p>Verdicts—when set aside and finding of facts entered. If the evidence shows that no cause of action exists in favor of the plaintiff, the verdict will be set aside and finding of facts entered against the plaintiff.</p>

<p>1. Debtor and creditor—application of payments. “It is not necessary that the appropriation of the payment should be made by an express declaration of the debtor; for if his intention and purpose can be clearly gathered from the circumstances of the case, the creditor is bound by it.”</p> <p>2. Debtor and creditor—application of payments. If there aré circumstances which would render it unreasonable or unjust to the debtor to permit the creditor to apply the payment to whatever debt he pleases, the court will not permit it to be done.</p>

<p>Verdicts—ichen set aside as against the evidence. A verdict will be set aside on review where the same is clearly and manifestly against the weight of the evidence.</p>

Bill in equity. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).

Action in ease for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1910.

<p>Action in case. Appeal from the Circuit Court of Williamson county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>Instructions—must be predicated upon the evidence. An instruction which assumes an interest in the controversy which does not in fact exist or which is not established by the evidence, is erroneously given.</p>

<p>1. Evidence—when offer of compromise competent. An offer of compromise while it may be incompetent for the purpose of showing an admission of liability, may none the less be admissible as tending to establish a waiver by an insurance company of a provision of a policy requiring immediate notice in writing of loss sustained.</p> <p>2. Pleading—when waiver need not he specially pleaded. Waiver of a condition in a policy of insurance in regard to furnishing proofs of loss need not be specially pleaded.</p> <p>3. Instructions—must not ignore issues. An instruction is properly refused which ignores one of the principal issues in the cause.</p> <p>4. Insurance—when defense of non-ownership does not lie. The company cannot interpose as a defense the fact that the insured was not an owner in fee as stated in the policy if it appears that through its agent it had full knowledge of the actual state of the title of the insured.</p> <p>5. Insurance—what insurable interest. A party in possession under a bond for a deed has an insurable interest in the premises.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Effingham county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1910.

Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1910.

<p>Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the March term, 1910.</p>

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Eranklin county; the Hon. Thomas J. Myers, Judge, presiding. Heard in this court at the March term, 1910.

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding. Heard in this court -'at the March term, 1910.

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Eayette county; the Hon. John H. Webb, Judge, presiding. Heard in this court at the March term, 1910.

<p>1. Reformation—how must he obtained. Reformation of documents can only be had in a court of equity and cannot be accomplished by evidence adduced at law.</p> <p>2. Insurance—effect of cancelation. If policies of insurance have been canceled and cancelation receipts executed and delivered, a recovery will not be sustained.</p>

Action in case for personal injuries. Appeal from the Circuit Court of6,Madison county; the lion W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1910.

<p>1. Evidence—effect of admissions. Evidence of admissions and declarations is not as a rule the most satisfactory; verbal statements are liable to be misstated or distorted and in cases of the statements of deceased persons they are liable to abuse.</p> <p>2. Instructions—must not single out particular evidence. An instruction should not single out any evidentiary facts which with other facts go to prove the main and controlling fact; such instructions are in the nature of arguments from the court and should not be given.</p> <p>3. Appeals and errors-—when remarles of counsel not subject to review. In order to review remarks of counsel alleged as improper an objection should be made thereto and a ruling obtained upon such an objection and an exception preserved to such ruling if adverse.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Williamson county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1910.

<p>Assumpsit. Error to the County Court of St. Clair county; the Hon. John B. Hat, Judge, presiding.. Heard in this court at the March term, 1910.</p>

Divorce. Appeal from the Circuit Court of Effingham county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).

Action in case for personal injuries. Appeal from the Circuit Court of Perry county; the Hon. Lotos Berureuter, Judge, presiding. Heard in this court at the March term, 1910.

<p>Justice of the peace—when justified in not appearing to preside at trial. Sold, under the evidence, that the justice of the peace in question in this case was justified in failing to appear to preside at a trial and that he was not liable in a civil action for failure so to appear.</p>

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1910.

<p>Error to the County Court of Eayette county; the Hon. 'John H. Webb, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>1. Evidence—what part of res gestee. Reid, in this case, that certain evidence of acts and declarations tending to show a contemplated marriage was competent as part of the res gesta;.</p> <p>2. Specific pebfobmance—what essential to enforcement of ante-nuptial contract. A proceeding for specific performance to enforce an ante-nuptial contract being an equitable remedy, the granting of the relief rests in sound judicial discretion, exercised upon a consideration of all the circumstances in the case, and to enforce performance of such a contract it must be fair and just, and not affected by any inequitable feature, and it must have a consideration to support it.</p>

<p>1. Contracts—when parol evidence incompetent as tending to affect a written agreement. If a written order for merchandise is a contract as well and purports on its face to include all conditions agreed upon, parol evidence is incompetent to vary or add to its terms.</p> <p>2. Sales—when warranty does not exist. If an order for merchandise is made in writing and it purports to express all of the conditions connected with the transaction, where no warranty is expressed or referred to therein, no warranty exists as a matter of law.</p> <p>3. Instructions—must he predicated upon the evidence. An instruction not predicated upon any evidence in the case should not be given.</p>

<p>Debtor and creditor—how relation established. One party cannot voluntarily make himself the creditor of another. A payment made for the benefit of another is voluntary unless made upon the request of such other or unless there has been a subsequent express promise to repay it.</p>

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

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

<p>Action in case for personal injuries. Error to Municipal Court of Chicago; the Hon. Adelor Petit, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>1. Evidence—of what judicial notice tahen. The courts of Illinois will take judicial cognizance of the fact that the Revised Statutes of the United States authorize the appointment of a deputy clerk for the Circuit Court of the United States.</p> <p>2. Judgments—when exemplification proper. A certificate signed in the name of the clerk of the court by his deputy is a compliance with the act of Congress regarding the authentication of records.</p> <p>3. Judgments—what essential to sustain, for costs. If a judgment in suit contains an item of costs referred to in the mandate of an appellate tribunal such mandate is an essential part of the judgment record relied upon for recovery.</p>

<p>Action of debt. Error to Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>1. Municipal court—of what judicial notice taken. The Municipal Court by statute is authorized to take judicial notice of the ordinances of the city of Chicago.</p> <p>2. Ordinances—when conviction for lounging sustained. Held, that the evidence in this ease justified a conviction for lounging under the ordinances of the city of Chicago.</p>

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

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in this court at the March term, 190"9.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1909.</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 March term, 1909.

<p>Judgments—when may he entered against one joint defendant in action ex contractu. At common law, if several defendants were joined in an action ex contractu, and all were brought before the court by service or appearance, it was absolutely essential to the plaintiff’s recovery that he should establish a joint liability; in other words, he must recover against all or none; it was not competent to enter judgment in favor of one defendant and against another. This rule, however, is subject to the exception that where in an action ex contractu against two or more defendants one defendant pleads or gives in evidence matter which does not go to the action of the writ, and is a bar to the action as against himself, only, and of which the other could not take advantage, judgment may be rendered for such defendant and against the rest. In this action the evidence did not bring the case within the exception and no joint liability being established judgment was not allowed against either defendant.</p>

<p>1. Common carriers'—right of connecting carrier. A connecting carrier is entitled to every advantage from the contract of carriage which the contracting carrier could himself derive from it.</p> <p>2. Common carriers—by tohat laws obligations of governed. The laws of the state where the bill of lading was delivered will control as to the nature, interpretation and effect of the contract for carriage.</p> <p>3. Evidence—what tends to establish law of sister state. The opinion of the highest court of a foreign state interpreting and declaring the law of such state, is proper evidence of the law of that state.</p> <p>4. Evidence—what does not tend to establish law of sister slate. The opinion of the Supreme Court of one state on a question controlled by the law of another state is inadmissible as evidence of the law of such other state.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hoñ. E. L. Eake, Jr., Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Brokers and factors—when not entitled to commissions. If there was no direct communication between the broker and the purchaser, such broker is not entitled to commissions unless he shows affirmatively that the purchaser was induced to enter into the negotiations which resulted in the purchase through the means employed by him for that purpose.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. ' Fred L. Fake, Jb., Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Municipal Court—when unauthorized to extend time for filing hill of exceptions. The Municipal Court is without power after the expiration of thirty days from the entry of judgment to grant an extension of time for -filing a bill of exceptions, statement or stenographic report.</p>

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

<p>1. Contracts—release of executory contract under seal. An executory contract under seal can be released and canceled by an executed verbal agreement.</p> <p>2. Contracts—modification of executory contract under seal. An executory contract under seal cannot be modified, varied, discharged or released by an executory verbal contract.</p> <p>3. Landlord and tenant—what does not affect cancelation of lease. A verbal agreement to cancel an executory demise not followed by surrender, is ineffectual to accomplish a termination.</p>

<p>Attachment. Error to the Municipal Court of Chicago; the Hon. McKenzie Gleland, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Trover. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantby, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. J. C. Scovel, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Contracts—when person ordering work clone liable. One who represents himself as the owner of property and orders work done thereon is liable for the debt thus created.</p>

<p>• Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Cotibell, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Sales—when contraet not established. Held, under the evidence in this case,- that a contract of bargain and sale v/as not entered into between the parties.</p>

<p>Action of contract. Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoke, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>1. Judgments—effect of entry in absence of counsel. The court has power to enter judgment in the absence of counsel for one of the parties; if his absence was not shown to have been justified a refusal to vacate the judgment entered is not an abuse of discretion.</p> <p>2. Municipal Court—when bill of exceptions not stricken. Held, that the bill of exceptions in this case while informal was a sufficient compliance with the statute authorizing the filing of a stenographic report inasmuch as such bill of exceptions contained the certificate of the judge that it contained “all the evidence presented at the hearing of the cause.”</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Instjkance—when false representations vitiate policy. An answer by an applicant for insurance to the effect that he was at the time in good health is vital and whether intentionally false or simply erroneous is of no importance; the answer if untrue will vitiate the policy.</p>

Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1909. October 31, 1910, order of dismissal vacated and cause taken.

<p>Insurance—when policy lapses for failure to pay second annual premium. A policy of life insurance dated June 3, 1907, contained the following provisions, among others: That the contract is made in consideration of the payment of premiums therein provided for “being the premium for term insurance for the period terminating on the 3d day of June, 1908, and in further consideration of the payment on said last named date to this company at its home office in the city of Chicago as the premium for whole life insurance, of the sum of $122.50 and a like sum annually thereafter on or before the third day of June in every year during the continuance of this contract.” Said policy contained the additional provision: “This policy shall not take effect until the first payment shall have been actually paid during the lifetime and sound health of the insured.” It appeared that the policy was not delivered until the 6th day of June, 1907. Held, that failure to pay the second annual premium on the 3rd day of June, 1908, caused the lapse of said policy.</p>

Action in case for personal injuries. Error to the Supérior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1909.

<p>Error to the Municipal Court of Chicago; the Hon. Hush E. Stewaet, Judge, presiding. Heard in this court at' the March term, 1909.</p>

<p>1. Municipal Court—practice on review. The practice and procedure in the Appellate Court in reviewing judgments of the Municipal Court is the same as that which prevails in reviewing judgments brought to the Appellate Court from other courts and any provisions of the Municipal Court Act to the contrary are unconstitutional and void as in contravention of the constitution which requires uniformity in practice and procedure.</p> <p>2. Insurance—when delivery of policy established. If a policy is delivered it becomes effective notwithstanding the first premium has not been actually paid if it is given into the possession of the insured pursuant to a plan sanctioned by the company by which the insured gave his note for the first premium to the soliciting agent whose property such note became.</p> <p>3. Insurance—when company estopped to deny payment of premium. Held, under the evidence in this case, that the company was estopped to deny the payment of the initial premium by the insured, because of the recital in the policy as follows: “In consideration * * * and of 30 and sj.ioo dollars in advance, hereby insures” etc.</p>

<p>Action in debt. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>1. Master and servant—obligations of former. It is the duty of a master to exercise reasonable care to furnish to the servant a reasonably safe place to work and the same rule obtains with respect to furnishing the servant with implements and appliances wherewith he is to do his work.</p> <p>2. Master and servant—what does not excuse former from performance of obligations. The obligations of the master with reference to the furnishing of a safe place to work and safe appliances are not relieved by the fact that the servant injured as well as other servants had themselves undertaken to add to the safety of such place and appliances.</p> <p>3. Master and servant—when doctrine of assumed risk does not apply. The doctrine of assumed risk does not operate to defeat a recovery unless it is established that the servant understood and realized the danger which resulted in his injury.</p>

<p>1. Landlord and tenant—when former not liable for injuries sustained from sewer gas. The rule of caveat emptor applies when a contract of letting is entered into. In order that a tenant may recover for injuries sustained .by reason of the presence of sewer gas in demised premises that fact must be known to the lessor and unknown to the lessee, at the time of the letting, and the defect be latent so as not to be discoverable upon examination of the premises by the lessee before entering into the contract.</p> <p>2. Landlord and tenant—representations as to condition of premises when letting. Representations by the landlord as to conditions of premises in respect of which conditions the lessee has the same opportunity for observation and examination as the lessor, afford no ground for action, unless by some artifice the lessor prevents examination as to the conditions concerning which the representations are made.</p> <p>3. Action, cause oe—false representations as to hidden defeat. False representations made .wittingly of a hidden or concealed defect, undiseoverable by any reasonable inspection or examination by him to whom the representation is made, is the wrong upon which an action may be predicated.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908. Certiorari denied by Supreme Court (mailing opinion final).

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

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

<p>1. Master and servant—when doctrine res ipsa loquitur does not apply. Where the declaration charges an injury resulting from the failure of the master to furnish a safe place to work or because of a negligent order given to the servant, the doctrine res ipsa loquitur does' not apply.</p> <p>2. Master and servant—when failure to inspect does not confer cause of action. If an injury results from a defective condition of the place to which the servant is assigned to work a recovery cannot be had for an injury resulting unless the defect is one which a proper inspection would have disclosed.</p> <p>3. Master and servant—when former not obligated to furnish safe place. The obligation of the master to provide reasonably safe places and structures for his servants to work upon, does not extend to buildings in process of construction while undergoing constant changes and passing successive temporary conditions, many of which must from the very nature of construction be dangerous.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Kichard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

<p>Action in case for personal injuries. Appeal from, the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.</p> <p>Certiorari denied by Supreme' Court (making opinion final).</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

<p>1. Master and servant—who not fellow-servants. Held, under the evidence, that the plaintiff, who was a switchman, was not, as a matter of law, a fellow-servant of members of the crews of switch engines.</p> <p>2. 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>3. Contributory negligence—employe alighting from switch engine. Held, that it was for the jury to determine whether or not an employe of a railroad company in stepping from a switch engine and on to an adjoining track was guilty of such negligence as barred his recovery.</p> <p>4. Evidence—when admission of immaterial will not reversq. The admission of immaterial evidence will not reverse unless harm appears to have resulted.</p> <p>5. Instructions—when upon quantum of proof not erroneous. An instruction upon this subject as follows, held, not erroneous.</p> <p>“The jury are instructed that the plaintiff is not bound to prove his case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence.”</p>

<p>Forcible detainer. Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Contributory negligence—crossing railroad trades. Seld, under the evidence in this ease, that the plaintiff in seeking to cross the railroad tracks in question was guilty of such contributory negligence as barred his right to recover.</p>

<p>1. Partition—what does not render allowance of complainant’s solicitor’s fees erroneous. Failure of the complainant to make parties defendants who appear to have a cloud upon the real estate sought to be partitioned will not defeat the complainant’s right to an allowance of a solicitor’s fee where upon such parties being made defendants by cross-bill it appeared that their claims were not valid.</p> <p>2. Partition—removal of clouds. The removal of clouds in a partition proceeding is incidental to the main relief sought and parties claiming interest adverse to the fee may be joined or not as at the time may seem expedient.</p> <p>3. Partition—propriety of allowance of cost of abstract of title. The cost of abstracts used by the complainant’s solicitor in preparing his bill and offered without objection in connection with the sale of the real estate involved may properly be allowed as costs to the complainant.</p> <p>4. Streets and alleys— what dedication not effective. A dedication by plat not in compliance with the statute is ineffective and an offer to dedicate not followed by acceptance is insufficient to give rise to a common law dedication.</p> <p>5. Dower—ivhen widow not entitled to. A widow is not entitled to dower in real estate which in the lifetime of her husband was held by him in trust for others.</p> <p>6/ Appeals and errors—-relief accorded where appellee unnecessarily encumbers record. If an appellee has unnecessarily encumbered the record which is filed on appeal, the additional cost occasioned by such course will be taxed against such appellee.</p>

<p>1. Injunctions—what not involved in appeal from order dismissing hill. An appeal from an order dismissing a bill for an injunction does not bring up for review the propriety of the previous action of the court in denying an application for a preliminary injunction upon such bill.</p> <p>2. Injunctions—when hill properly dismissed upon denial of motion for temporary injunction. If the bill is for an injunction only, the court may properly dismiss it upon denying the injunction sought.</p>

<p>Assumpsit. 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>

<p>1. Evidence—when interest does not disqualify; when disqualifies. If children of a deceased ancestor claim land in litigation as heirs at law of such ancestor, the testimony of the adverse party in his own behalf is not competent against them even though taken by the master before the death of such ancestor; but where such children claim not as heir’s but as grantees in a deed from such ancestor, such adverse party is competent.</p> <p>2. Conveyance—"burden of proof to establish nondelivery. A claim that a deed was never delivered, but, upon the other hand, was placed in escrow and wrongfully recorded must be established by a preponderance of evidence by the party making it.</p> <p>3. Liens—when reservation contained in deed enforced. If land sold upon execution has been redeemed for the benefit of the owner of the equity of redemption and upon a settlement a reconveyance is made to such owner subject to a right of user for a specified period, the valuó of such right of user will be recognized and enforced as a lien against the premises in question.</p>

Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Henry county; the Hon. Emeby C. Gbaves, Judge, presiding. Heard in this court at the April term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Proceeding by information. Appeal from the Circuit Court of Henderson county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>1. Pleading—what essential to constitute paper hill in chancery. A mere written motion is not the equivalent of a bill in chancery to set its machinery in motion. A bill in chancery must set up the facts upon which the relief is sought; it must pray for relief; it must have a party complainant and name parties defendant.</p> <p>2. Parties—who necessary to proceeding to appoint trustee. Those having an interest in a trust, whether present or contingent, are necessary to a proceeding in a court of chancery to appoint a trustee as the successor of a testamentary trustee who has resigned.</p> <p>3. Writs of error—when cannot he maintained. A writ of error does not lie except to review the action of the trial court with respect to litigation which has been conducted before it. Such a writ likewise must be sued out by a person who was a party to such litigation in the trial court.</p>

<p>Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. E. S. Babrand, Judge, • presiding. Heard in this court at the April term, 1910.</p>

<p>Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. R. S, Fabband, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>1. Amendments and jeofails—when amendments to bill of exceptions not stricken. In the absence of a bill of exceptions to support the contention that the amendments of a bill of exceptions were not predicated upon a memorial, the presumption of regularity will be indulged in favor of the amendments made.</p> <p>2. Evidence—when custom not competent. A custom is not competent unless shown to have been known to the party sought to be charged thereby.</p> <p>3. Negotiable instruments—sections SO and 11 construed. It is not the meaning of such sections of the Negotiable Instrument Act that a cheek may be sent for collection in a roundabout way through many banks, and that the reasonable time for its presentment begins after the last time it is sent on for collection.</p> <p>4. Negotiable instruments—when endorser discharged for failure of presentment within reasonable time. Irrespective of actual damage, an endorser is discharged by the omission to present a check for payment within a reasonable time.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Wobthington, Judge, presiding. Heard in this court at the April term, 1910.

<p>1. Costs—how statute pertaining to imposition of, construed. Statutes which impose costs are to be strictly construed.</p> <p>2. Costs—fees of guardian ad litem in proceedings to condemn. The reasonable compensation of a guardian in protecting the interests of a minor made defendant in an eminent domain proceeding is properly taxed against the petitioner.</p> <p>3. Eminent domain—character of proceeding. A proceeding to condemn is not an action at law, nor yet a proceeding in chancery, but belongs to the class of actions known as special statutory proceedings.</p>

<p>Mandamus. Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1910.</p>

<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, 1910.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the April term, 1910.

<p>1. Statutes of limitation—against whom do not run. Statutes of limitation do not run against the state in respect to public rights, unless the state is expressly included within the terms of the statute, and this rule extends to minor municipalities created by the state as local governmental agencies, such as counties, cities, towns and the like, in respect to governmental affairs affecting the general public; and in all matters affecting strictly public rights, such minor municipalities are exempt from the statutes of limitation. But as to matters involving private rights, counties, cities, towns and other like municipalities are subject to statutes of limitation to the same extent as individuals.</p> <p>2. Statute of limitations—when runs against hond. In an action upon the official bond of a sheriff to recover fees alleged to have been unlawfully retained the statute of limitations constitutes a defense.</p>

<p>This case is controlled by the decision in People for use, etc. v. Davis, ante, p. 438.</p>

<p>Judgment by confession. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Oabnes, Judge, presiding. Heard in this court at the April term, 1910.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. H. E. Worthington, Judge, presiding. Heard in this court at the April term, 1910.

<p>Bill in chancery. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>Action in case. Appeal from the Circuit Court of Kane county; the Hon. Mazzini Sltjsser, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>Objections to executors’ report. Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1910.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1910.

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 April term, 1910.

<p>Bill in chancery. Appeal from the Circuit Court of Kankakee county; the Hon. Beane L. Hoopeb, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>Bill in equity. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>1. Pleading—when absence of similiter immaterial. Where a pleading concludes to the country and no further pleading is filed by the opposite party, but the parties go to trial, the case is treated as though a written similiter were filed and an issue of fact thereby formed.</p> <p>2. Pleading—effect of joining issue upon replication. If issue has been joined upon replications and such issue decided against the defendant, such defendant so having joined issue will not be heard to say that such replications were demurrable and did not constitute a legal answer to the pleas.</p> <p>3. Appeals and errors—when stipulation not part of record. A stipulation which pertains to the pleadings in a case upon which no order of court has heen predicated is not a part of the common law record.</p> <p>4. Appeals and errors—what complaint cannot he made. A party cannot complain of the submission to the jury of a question as one of fact where he has induced the court so to do, even though such question may in fact have been one of law.</p> <p>5. Insurance—when statements constitute representations and not warranties. Held, that because statements were made by the applicant as true “to the best of his knowledge and belief,” and because of other kindred reasons, the statements in question in this case were representations, and not warranties.</p> <p>6. Insurance—what essential to void, policy because of false representations in application. In order to defeat a recovery upon a policy upon the ground that false representations as to health, medical history, etc., were made in the application, it must be shown that at the time of making them the applicant knew or believed his representations to be untrue.</p> <p>7. Insurance—what not false representation affecting policy. To a question as follows: “Where and by what physician were you last attended, and for what complaint?” the answer given was, “None.” Held, that evidence to the effect that the applicant had prior to the making of such answer called upon doctors at their offices for advice did not establish the falsity and lack of good faith in making such answer.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1909. Certiorari denied by Supreme Court (making opinion final).

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', 1910.

<p>Mandamus. Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>Lab cent—character of offense and manner of prosecution. Larceny, without regard to the value” of the property stolen, is an infamous crime, subjecting one convicted of the offense to the deprivation of his civil rights, and can be prosecuted only upon an indictment by a grand jury.</p>

<p>1. Contracts—when for merchandise cannot he canceled. A contract for the sale and delivery of merchandise being completed, a vendee has no right of cancellation.</p> <p>2. Instructions—upon what theory cause may he submitted. A party has a right not only to tender his own theory of the cause, but likewise, without waiving his own theory, to tender instructions to meet the theory of the opposite party.</p> <p>3. Appeals and errors—when cross errors essential. In order to • obtain a review of rulings adverse to the prevailing party, cross errors must be assigned.</p>

<p>1. Pleading—what m action upon official land not defective. In an action upon a sheriff’s bond it is not necessary that the declaration should aver for whose use the suit is brought.</p> <p>2. Pleading—what question cannot be raised by demurrer. The propriety of the prosecution of an action upon a sheriff’s bond by a state’s attorney is a question which cannot be raised by demurrer.</p> <p>3. Pleading—how assignments of breaches of official bond should be alleged. Assignments of breaches of an official bond should be specific and definite and the allegations of breaches are to be construed most strongly against the pleader.</p> <p>4. State’s attorney—propriety of institution by, of action upon official bond. The state’s attorney is a proper official to institute an action upon a sheriff’s bond to recover taxes alleged to be the property of various municipal corporations.</p> <p>5. Judgments—when void for uncertainty. A judgment which decrees that certain defendants (less than all) “go hence without day” is void for uncertainty, if it does not specifically set forth what defendants are intended. Such a judgment record cannot be aided by reference to other parts of the record in the cause.</p> <p>6. Amendments and jeofails—dismissal of party defendant. The court having control of a cause should permit the plaintiff on his own motion to dismiss one of the defendants out of the cause.</p>

<p>Action in covenant. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>Action in case. Appeal from the Circuit Court of Will county; the Hon. Dorbance Dibell, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>Divorce. Appeal from the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at April term, 1910.</p>

Contested claim in court of probate. Appeal from the Circuit Court of Knox county; the Hon. Habby M. Waqqoneb, Judge, presiding. Heard in this court at the April term, 1910.

Action in case for personal injuries. Appeal from the Circuit Court of Dee county; the Hon. Oscab E. Heaed, Judge, presiding. Heard in this court at the April term, 1910.

<p>1. Evidence—when telephone conversations not incompetent. Telephone conversations are not necessarily incompetent because of the failure of the party testifying thereto to state that he recognized the voice of the person with whom he was talking.</p> <p>2. InstbuctionS'—when erroneous will not reverse. Even though an instruction may be subject to criticism, it will not reverse unless harm appears to have resulted from its giving.</p> <p>3. InstbuctionS'—when upon interest of one party erroneous. Where both of the parties to an action are natural persons an instruction should not be given which is directed to the testimony of only one of them. Held, however, in this ease, in view of the clear preponderance of the evidénce in favor of the prevailing party, that the error in giving such instruction would not reverse.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1910.

Action in case for personal injuries. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding. Heard in this court at the April term, 1910.

<p>Bill in equity. Appeal from the Circuit Court of DuPage county; the Hon. Mazzini Slussee, Judge, presiding. Heard in this court at the April term, 1910.</p>

Action commenced before justice of the peace. Appeal from the County Court of Lake county; the Hon. DeWitt L. Jones, Judge, presiding. Heard in this court at the April term, 1910.

<p>1. Motions fob new tbiae—when predicated upon absence of counsel will not be granted. If a cause is tried in its regular order the mere absence of counsel does not require the granting of a new trial; if the failure of counsel to attend is due to his own negligence then likewise a motion for a new trial need not be allowed because of such absence.</p> <p>2. Instjbance—when proofs of loss waived. Submitting the question of the amount of the loss to arbitration waives the requirements of the policy regarding proofs of loss, and this is true where an award is set up as a defense although the policy stipulates that no provision shall be waived except by written endorsement.</p> <p>3. Instjbance—what defense not available under general issue. A defense that in an action upon an insurance policy the amount of the recovery should not exceed the amount of the award fixed by arbitration is not available under the general issue.</p> <p>4. Instjbance—when defense that loss was payable to mortgagee not available. If the declaration upon an insurance policy avers that the plaintiff owned the property damaged the fact that the policy sued on shows that the loss was payable to a mortgagee named in a loss clause is not available to the company if the declaration was not challenged as defective and no special plea filed.</p>

Bill in chancery. Appeal from the Circuit Court of Boone county; the Hon. Robert W. Wright, Judge, presiding. Heard in this court at the April term, 1910. Oertorari denied by Supreme Court (making opinion final).

<p>Verdicts—when set aside on review. A verdict not sustained by the evidence will be set aside on review.</p>

<p>Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. E. S. Fabrand, Judge, presiding. Heard in this court at the April term, 1910.</p>

<p>Appeal from the Circuit court of Livingston county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1910.</p>

Action commenced before a justice of the peace. Appeal from the Circuit Court of Livingston county; the Hon. T. M. Habéis, Judge, presiding. Heard in this court at the April term, 1910.