Volume 164 — Illinois Appellate Court Reports

<p>1. Appeals and errors—when decree not set aside. A decree in a court of chancery sustained by the evidence will not be disturbed on review.</p> <p>2. Appeals and errors—when cost of additional abstract taxed. The cost of an additional abstract if rendered necessary by the insufficient abstract filed by the appellant will be taxed in favor of the appellee.</p>

<p>1. Slander and libel—what not defense. It is no defense to an action of libel to show that the publication was predicated upon information obtained from the chief of police and others at the police station and that at the time of the publication and afterwards nothing was known with respect to the truth or falsity of the publication except as indicated from the information thus obtained.</p> <p>2. Slander and libel—what evidence incompetent. " In an action of libel conversations had with third parties out of the presence of the plaintiff which bear upon the truth or falsity of the publication made, are incompetent.</p> <p>3. Slander and libel—when malice presumed. Where a publication is shown to have been made and charges a felony malice is presumed.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>1. Evidence—what incompetent in action to recover payment made in connection with proposed exchange of properties. Conversations with respect to negotiations which preceded the actual trade agreed upon, are incompetent in such an action, and likewise evidence as to the achual value of the land involved in the trade.</p> <p>2. Contracts—ivhat does not justify refusal to perform. A contract duly entered into without fraud or undue influence must be performed if valid even though its terms may not have been understood.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Logan county; the HoN. T. M. Harris, Judge, presiding. Heard in this court at the November term, 3911.

Action in ease for personal injuries. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>Appeal from the Circuit Court of Hogan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1911.</p>

Action, in case for personal injuries. Appeal from the Circuit Court of De Witt county; the Hon. W. G-. Cochran, Judge, presiding. Heard in this court at the May term, 1911.

Action in case for death caused by alleged wrongful act. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholeield, Judge, presiding. Heard in this court at the May term, 1911.

<p>Appeals and errors—when assignments of error not considered. A party who appears to have no interest in the subject-matter of a controversy and who by his pleadings has disclaimed any interest will not be heard upon appeal with respect to an action of the court which did not affect him.</p>

<p>Appeal from tbe Circuit Court of Vermilion county; tbe Hon. E. E, E. Kimbrough, Judge, presiding. Heard in tbis court at tbe May term, 1911.</p>

<p>1. Insurance—when application part of contract. Where an intent to make the application a part of the policy appears, the court, no matter what the phraseology may be, will read the application into the policy of insurance.</p> <p>2. Insurance—how contract construed. If language of an insurance policy is ambiguous it will be most strongly construed against the company in favor of the insured.</p> <p>3. Insurance—how period of incontestability determined. If the original application was to one insurance company and the suit brought is upon the policy issued by another company pursuant to a re-insurance agreement, an incontestable clause commences to run from the date of the first application unless the intention of the parties to the contract is clearly to the contrary.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1911.

<p>Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>1. Attractive nuisance—what not. A cellar left open, and unguarded is not an attractive nuisance within the rules which define such a nuisance ^vhere there is no evidence that the defendant knew that children were in the habit of playing about such cellar and no invitation is shown to have been extended to such children to play about the same.</p> <p>2. Negligence—when fencing not required. Excavations upon property not so near the street as to be dangerous to passengers upon the walk, do not have to be fenced to protect children from injury, who are in the habit of going upon the premises to play.</p>

Bill in equity. Appeal from the Circuit Court of Cass county; the Hon. Guy Williams, Judge, presiding. Heard in this court at the May term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>Appeals and beeoes—when findings of chancellor not disturbed. Findings of fact by a chancellor will not be disturbed on review as against the weight of the evidence unless clearly and manifestly so.</p>

<p>Common caebibes—how question of assent to limitations of liability determined. Whether the terms of a special contract limiting the liability of the carrier are known by the consignor and assented to by him, is a question of fact for the jury.</p>

<p>■ Action in case for personal injuries. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirlet, Judge, presiding. Heard in this court at the May term, 1911.

<p>Bill to review, etc. Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>1. Practice—section 34 of act construed. Section 34 of the Practice Act merely shifts the burden of proof upon the defendant to show that too many or too few persons are joined as plaintiffs, and this he may do under the general issue.</p> <p>2. Husband and wipe—effect of appointment of conservator upon marital relation. The appointment of á conservator for the husband because of his enfeebled condition, etc., does not absolve the wife from her marital obligations and permit her to live separate and apart from him.</p> <p>3. Husband and wipe—what essential to recover for necessaries. In order to sustain a recovery for necessaries furnished to the wife it must appear that the wife is living separate and apart from her husband either without her fault or by mutual consent.</p>

<p>Damages—when reversal not ordered to permit recovery of nominal damages. After two verdicts have been rendered in favor of a defendant the second verdict will not be set aside if the evidence will support the same in order to enable the plaintiff to recover merely nominal damages.</p>

<p>1. Trial—when refusal to re-open ease will not reverse. It is within the sound discretion of the court to refuse to re-open a case to permit the introduction of additional testimony and the exercise of such discretion by the court will not result in reversal unless an abuse is shown.</p> <p>2. Trial—when giving defendant opening and closing will not reverse. Even though the court may improperly give to the defendant the opening and closing arguments, such action will not result in a reversal, as the error is not sufficiently prejudicial.</p> <p>3. Instructions—when errors will not reverse. If a case is not close on the facts and the evidence sustains the verdict rendered, errors in instructions will not necessarily work a reversal.</p>

<p>Partition. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1911.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1911.

<p>1. Appeals and errors—when cross-errors not considered. Cross-errors not assigned but merely argued will not be considered.</p> <p>2. Administration op estates—statement of claim not equivalent to declaration. A party presenting a claim against an estate is not limited in his right to recover to the particular grounds stated in such claim.</p> <p>3. Negotiable instruments—when aet applies. If the instrument negotiated is negotiable in character and its negotiation was effective as a commercial transaction the Negotiable Instrument Act applies to recover the rights and liabilities to such instrument. ^</p> <p>4. Negotiable instruments—when presentment, etc., essential to charge endorser, (jf a note be given for the accommodation of a firm of which the endorser is a partner it is not deemed to have been' given for the accommodation of such endorser within the meaning of section 132 of the Negotiable Instrument Act so far as to preclude the necessity for presentment and notice of dishonor^</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>1. Evidence—-when declarations of grantor incompetent. Declarations of a grantor in a mortgage made after its execution unless part of the res gestae are incompetent as against one claiming under such mortgage.</p> <p>2. Judgments—when not subject to collateral attack. A judgment, the satisfaction of which constituted a part of the consideration of a mortgage, is not subject to attack in a proceeding which seeks the cancellation of such mortgage.</p> <p>3. Masters in chancery—effect given to findings of fact. While findings of fact by the master are merely advisory to the chancellor they are entitled to due weight in consequence of the superior opportunities afforded the master to determine the credibility of the witnesses by having seen them and having observed their demeanor while testifying.</p> <p>4. Fraud—how must be established. Fraud is not presumed but must be proven.</p> <p>5. Fraud—effect of acknowledgment as affecting fraud in execution. An acknowledgment to an instrument attacked as having been obtained by fraud is not to be lightly regarded.</p>

Petition to sell real estate to pay debts. Appeal from the County Court of Jersey county; the Hon. H. W. Pogue, Judge, presiding. Heard in this court at the May term, 1911.

Quo warranto. Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1910. Certiorari denied by Supreme Court (making opinion final).

Quo warranto. Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Evidence-—when stockholder not incompetent by virtue of interest. The test as to whether such a witness is in fact incompetent, the adverse party suing in a representative capacity, is, was he a stockholder at the time of testifying; if he was not then he is competent. It is immaterial whether he was a stockholder at the time of the transaction involved unless it can be shown that he parted with his stock for the purpose of qualifying as a witness.</p>

<p>1. Municipal corporations—when liable for acts of officers. While a municipal corporation is not liable for the wrongful acts of its officers, even when committed by an officer in the performance of his duty, this-rule does not go to the extent that where the city undertakes to perform an act which it is authorized by law to do and for the performance of which it is necessary to destroy or damage property, that the city is not liable therefor.</p> <p>2. Municipal corporations—when liable for removal of trees. If trees are so located that the branches overhang a portion of the street and damage the street or are an inconvenience to the public in the use of the street, or if the body of the tree extend into the street so as to obstruct its use by the public, the city has the right to remove such •branches of the tree as extend into the public street without any compensation to the property owner; but where it becomes necessary to remove the tree situated jointly upon property of the city and that of the property owner for the purpose of removing an obstruction to the public use of the street, the rule does not extend so far as-to permit the city to do so without making just compensation to the property owner.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1910.

<p>1. Railroads—when not liable for failure to erect gate closing opening to right of way. If the party suing for death of cattle alleged to have been caused by the neglect charged, is shown to himself have undertaken to close such opening, he cannot recover in the absence of evidence of notice to the railroad company that the method employed to close such opening was insufficient.</p> <p>2. Judgments—when form immaterial. If a judgment is in form irregular the irregularity becomes immaterial upon an order of reversal being entered.</p>

<p>Mandamus. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1910.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.

<p>Appeal from the Circuit Court of McLean county; the Hon. Oolostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Exemptions'—how statutes construed. Statutes giving exemptions to a debtor are to be liberally construed in his favor.</p> <p>2. Exemptions—when employer entitled to malee deductions from wages. An agreement by a debtor with his employer that such employer might deduct from his wages whatever sum might be due for supplies furnished, is valid and may be enforced by the employer as against a garnishing creditor.</p> <p>3. Exemptions—what cannot he deducted from, as allowed hy statute. Amounts which the employer has authority to deduct from the wages due to the debtor should not in turn be deducted from the amount of the exemptions allowed by statute.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. ColostiN D. Myers, Judge, presiding. Heard in this court at the May term, 1911.

Action in ease for personal injuries. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1911.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1911.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. O. P. Thompson, Judge, presiding. Heard in this court at the May term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the May term, 1911.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the November term, 1910.

<p>Creditor’s bill. Appeal from the Circuit Court of Greene county; the Hon. O. P. Thompson, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>1. Appeals and errors—what errors not considered. Errors assigned but not argued are deemed waived.</p> <p>2. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence where not clearly and manifestly so.</p>

Action in case for personal injuries. Appeal-from the Circuit Court of Christian county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the May term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>1. Insurance—when acceptance established. Held, under the evidence, that acceptance by the insured of the policy in suit was established.</p> <p>2. Evidence—when declarations of agent incompetent. Declarations by an agent after his authority as such has ceased are incompetent as against his principal.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>Action in debt. Appeal from the Circuit Court of Vermilion county; the Hon. W. R. Scholeield, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>1. Public policy—when guilty party aided as against another guilty party. If inequality of guilt exists, as, for instance, where one party is by moral duress coerced into participation in illegal transactions, equity will grant relief at the instance of the party so coerced.</p> <p>2. -Duress—what constitutes. Notwithstanding a party may not have been actuated by any apprehension of imminent danger to Ms life, limb or liberty, duress may be established by a showing of oppression, imposition, undue influence or the taking of undue advantage of financial stress.</p>

<p>Separate maintenance—when contract as to alimony abrogated. Held, under the evidence, that a contract fixing alimony in gross though approved by the court was by the mutual consent of the parties abrogated and rescinded.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1911.

Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 3911.

<p>Action in trespass. Appeal from the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>Action in debt. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>Appeals and errors—when findings of chancellor not disturbed, bindings of fact by a chancellor where snch chancellor has had the opportunity of seeing witnesses upon the stand and hearing them testify, will not be disturbed unless the Appellate Court can say that the same are clearly and palpably erroneous.</p>

<p>1. Common carriers—when responsibility attaches. The responsibility of a common carrier for goods received by it begins as soon as the same are delivered and ready for immediate transportation. If the shipper captiously withholds shipping directions the company into whose possession the goods have come is only liable as a warehouseman during the period of the withholding of such directions.</p> <p>2. Railroads—discretion as to location and maintenance of stations. Railroad companies are vested with considerable discretion as to the location and maintenance of their stations and whether or not they are bound to maintain a' station depends upon a variety of facts and eireumstances. There is no presumption of law that a railroad company is required to maintain a station at a particular point merely because it had formerly kept one thereat.</p> <p>3. Railroads—when deed does not impose obligation to maintain station. A deed in order to impose the obligation upon the grantee railroad company to maintain a station on the land conveyed, must contain a stipulation to that effect which constitutes a personal covenant or a condition subsequent.</p>

<p>Mandamus. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1911.</p>

Assumpsit.' Appeal from the Circuit Court of Montgomery county; the Hon. J. 0. McBride, Judge, presiding. Heard in this court at the May term, 1911. Certiorari denied by Supreme Court (making opinion final).

Assumpsit. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbbiok, Judge, presiding. Heard in this court at the May term, 1911. Certiorari denied by Supreme Court (making opinion final).

Action commenced before justice of the peace. Appeal from the Circuit Court of Champaign-county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1911.

<p>Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholeield, Judge, presiding. Heard in this court at the May term, .1911.</p>

Action commenced before justice of the peace. Appeal from, the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at' the May term, 1911.

<p>Action commenced before justice of the peace. Error to the Circuit Court of Scott county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1911.</p>

Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the May term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>1. Accokd and satisfaction—when established. “The principle that a liability cannot be discharged by payment and acceptance of a less sum, applies only to a payment -in money. A valid accord and satisfaction takes place where some specific article of personal property or a conveyance- of real property is accepted in satisfaction of the demand. This is true irrespective of the intrinsic value of the property. The fact that the property was of less value than the demand, or that it is of very small value as compared with the claim for which it was accepted, is immaterial.”</p> <p>2. Public policy—parties to illegal transaction. Where two or more parties engage in a fraudulent transaction to injure another, neither law nor equity will interfere to relieve either of the parties as against the others, from the consequences of their own misconduct.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>Bill in equity. Appeal from the Circuit Court of Pike county; the Hon. Gut R. Williams, Judge, presiding. Heard in this court at the May term, 1911.</p>

Action in case of personal injuries. Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the May term, 1910.

<p>1. Practice—section 13 of act pertaining to service upon non-resident partnerships construed. Held, that the word ‘ ‘ non-residents ’ ’ as used in this section of the Practice Act applied as well to non-residents of the county as to non-residents of the State. Watson v. Coon, 247 Ill. 414, followed.</p> <p>2. Pleading—nature of plea to jurisdiction. A plea to the jurisdiction of the court is a meritorious plea and is not, strictly speaking, a plea in abatement although it is in the nature of such a plea.</p> <p>3. Pleading—when requiring plea to merits error. A party who files a plea to the jurisdiction of the court over his person is entitled to have the issue presented by such plea determined by a jury and before such issue has been determined it is error for the court to require a plea on the merits, and the fact that a plea to the merits is filed pursuant to such an order, does not estop the party injured from assigning error.</p> <p>4. Waiver—what does not waive plea to jurisdiction. Held, that a plea to the jurisdiction duly filed was not waived (a) by agreement that the case should be passed at the defendants’ costs, or (b) by the filing of an aifidavit of the non-residence of a material witness, or (c) by a motion for leave to amend such plea to the jurisdiction; each of said steps having been taken with reference to the pending plea but without a limitation as to the purpose of appearance.</p>

<p>Appeal from the Circuit Court of De "Witt county; the Hon. W. Gr. Cochran, Judge, presiding. Heard in this court at the May tei’m, 1910.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. W. G-. Cochean, Judge, presiding. Heard in this court at the May term, 1910.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>1. Slander and libel—what not competent upon question of malice. An independent slander, that is to say, slanderous words not in substance or effect the repetition of the slander for which the action is brought, is not competent upon the question of malice.</p> <p>2. Verdicts—when not cured by remittitur. A verdict which appears to have resulted from passion and prejudice cannot be cured by remittitur.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1910.

<p>Partition. Error to the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Action in ease. Error to the Circuit Court of Whiteside county; the Hon. Emery G. Craves, Judge, presiding. Heard in this court at the April term, 1911.</p>

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

<p>Assumpsit. Appeal from tbe Circuit Court of Winnebago county; tbe Hon. Arthur H. Erost, Judge, presiding. Heard in this court at tbe April term, 1911.</p>

<p>1. Railroads—functions of flagmen and gates. The functions of a flagman and of gates and of lights are to warn travelers of approaching trains. It is not the duty of a flagman to hold the heads of horses while a train is passing by or to wave his flag while the train is passing. It is not required that gates shall be so strong that a team cannot be driven through them, nor that they shall form an impassible barrier while a train is passing. After a passing train has reached a crossing and the parties riding in a vehicle approaching the crossing know that the train is upon the crossing, flagman and gates and lights have performed their functions.</p> <p>2. Evidence—of what judicial notice talcen. Courts take judicial notice of the course of the heavenly bodies.</p> <p>3. Negligence—when absence of flagman or gates or lights does not confer cause of action. Absence of a flagman and gates at a railroad crossing, likewise insufficiency of lights, will not confer a cause of action if the injury sued for did not proximately result therefrom.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1911.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Injunctions—when lie to restrain award of contract by board of local improvements. An injunction ma.y properly be awarded at the instance of taxpayers directly affected to restrain a board of local improvements from arbitrarily and fraudulently letting a contract to one other than the lowest responsible bidder. 3eld, in this case, that the allegations of the bill of complaint were sufficient to authorize the granting of the relief prayed.</p> <p>2. Local improvements—when fraud in letting contract established. 3eld, that the evidence in this case tended to show that the action of the board of local improvements in awarding the contract in question was arbitrary and fraudulent.</p> <p>3. Parties—effect of want of interest of one complainant. The want of interest of one of the complainants in a bill of equity may be fatal to the entire suit but such lack of interest should be raised by demurrer.</p>

<p>Bastardy. Appeal from the County Court of Lake county; the Hon. De Witt L. Jones, Judge, presiding. Heard in this court at the April term, 1911.</p>

Bill for injunction. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Bill in equity. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1911.</p>

Action in case for personal injuries. Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomerot, Judge, presiding. Heard in this court at the April term, 1911.

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 April term, 1911.

<p>1. Pleading'—when plea of tender insufficient. A plea setting up a tender made after suit "brought is insufficient where it does not tender costs up to the time of the making of the tender.</p> <p>2. Banks—obligations as to special deposit. If a bank receives a special deposit for the purpose of providing for certain payments and agrees that such special deposit shall be subject only to’ checks drawn on account of such payments, such bank will not be permitted to divert such special deposit.</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, 1911.

Action in ease for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Prank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1911.

<p>Assumpsit. Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Measure op damages—in action for failure to deliver merchandise. “If delivery is postponed by agreement between the parties, the measure of damages is the difference between the contract price and the market price at the time the article is deliverable by the subsquent agreement, and where the time of delivery is postponed indefinitely, the measure of damages is the difference between the contract price and the market value at a reasonable time after demanding performance.” (Summers v. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102.)</p>

<p>Assumpsit. Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>■ Assumpsit. . Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Appeals and errors—when finding of court not disturbed. A finding by the court will not be set aside on review unless clearly and manifestly against the weight of the evidence.</p>

<p>1. Pleading—what essentials of special replication. A special replication to a special plea must either deny the facts set up in the plea or must confess them and state other matter which will avoid the result claimed therefrom.</p> <p>2. Judgments—when involuntary non-suit need not he entered. If a case is regularly called for trial and the plaintiff is present but offers no evidence and does not ask for a non-suit, the court may properly find the issues for the defendant and enter judgment on the finding.</p>

<p>Action in case for personal injuries. Error to the Circuit Court- of Putnam county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Contract—when lacking in mutuality. A contract by which delivery of beer is agreed to be made to meet the requirements of the vendee, quality of the beer to be satisfactory to the vendee, but otherwise silent as to quality, quantity and duration, is lacking in mutuality and is terminable at will.</p>

<p>1. Mines and minees—paragraph (i) of section 4 construed. In the term “boilers” as used in paragraph (i) of section 4 are included all pipes and connections between a boiler and a steam chest or engine.</p> <p>2. Mines and minees—section 4 of act construed. Under section 4 of the Mines and Miners Act it is the duty of the operator to have the machinery in the mine inspected daily by the mine examiner and a record made of the conditions.</p> <p>3. Mines and miners—what wilful violation. Held, that a failure to have boilers and connections examined and a report made of conditions as required by statute, was wilful and rendered the operator liable irrespective of whether the deceased miner was in the exercise of due care.</p> <p>4. Mines and minees—what not proximate cause. Held, in this case, that the absence of the engineer from the hoisting engine was not the proximate cause of the death upon which the action was predicated.</p> <p>5. Ordinary oaee—presumption arising from habits of care. Seld, that it was a reasonable presumption from the character and habits of the deceased that he did what ordinary care for his own safety would require and that he had been accustomed to do.</p>

<p>Mechanic’s lien. Appeal from the Circuit Court of Lake county; the HoN. Robert W. Wright, Judge, presiding. Heard in this- court at the April term, 1911.</p>

<p>1. Dram-shops—who jointly liable in action for injury to means of support. If the husband of plaintiff was injured and died because of intoxication produced by intoxicating liquors sold to him, then all persons who sold him liquor materially contributing to that intoxication and all owners of the. premises wherein the liquor was sold, if they knowingly consented to such use of such premises, are jointly liable with the parties who sold such liquor to plaintiff’s husband.</p> <p>2. Dram-shops—against whom action lies for injury to means of support. The remedy provided by statute is not confined to. suits against licensed saloon-keepers but is given against all persons engaged in the sale of intoxicating liquors.</p> <p>3. Dkam-shops—what not defense to action for injury to means of support. A party causing intoxication in whole or in part cannot escape liability for damages to the means of support caused by such intoxication because he may not reasonably have foreseen the consequence of intoxication produced by such sales.</p> <p>4. Pleading—when alternative allegation immaterial. Alternative pleading is a defect in form only when the facts so alternatively stated are material.</p>

<p>Bill in equity. Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Divorce. Appeal from the ’Circuit Court of De Kalb county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court .at the April term, 1911.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Marshall county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the April term, 1911.

<p>Mechanic’s liens—when owner of fee not liable. Where a contract between the owner of the fee and the lessee provides for certain improvements, the interest of the lessor cannot be subjected to a mechanic’s lien for other improvements in the absence of any showing that he authorized or consented to the additional work.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1911.

<p>1. Divorce—when extreme and repeated cruelty established. Held, that the evidence in this case established the charge made of extreme and repeated cruelty.</p> <p>2. Divorce—when decree in violation of statute. A decree of divorce which restores the parties to the rights and privileges of unmarried persons is in contravention of the statute which prohibits remarriage within certain pei’iods.</p>

<p>1. Appeals and errors—when terns of appeal not renewable. If the court imposed improper conditions upon the right to appeal such action is immaterial if the review of the decree complained of is obtained by writ of error without complying with such conditions.</p> <p>2. Foreclosure-—when allowance of fees proper. An allowance of fees is proper where an officer of the complainant bank has acted as solicitor if it appears from the resolutions of such bank that such officer was entitled to charge and collect from it for services rendered in such foreclosure.</p> <p>3. Foreclosure—when allowance of fees excessive. Held, in this case, that $200 w-as an excessive allowance.</p>

<p>•1. Appeals and ■errors—upon what right of appeal predicated. There is no inherent right to an appeal in any party to a suit at law; whei'ever a right to an appeal exists it is derived from some statute, and to perfect an appeal the statute must be complied with.</p> <p>2. Appeals and eebobs-—who not entitled to appeal. A beneficial plaintiff has no right to appeal in his own name from a judgment of a justice of the peace where no judgment for costs has been rendered against him.</p>

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, 1911.

<p>Assumpsit. Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>1. Measure op damages—in action for injury to personal property. When personal property has been injured by the negligence of another and can be repaired, the proper, measure of damages is the cost of the repairs and the value of the loss of the use of it while it is being repaired. If the property cannot be repaired then the measure of damages is the difference between the market value of the property before the injury and the value of the wreckage.</p> <p>2. Instructions—what not essential to authorize directing verdict for plaintiff on-proof of allegations of declaration. An instruction directing a verdict for the plaintiff on proof of the allegations of the declaration can only be justified when the declaration contains a complete statement of a cause of action.</p> <p>3. Instructions—when submits question of law. An instruction which leaves to the jury the determination of the question as to what is a proper and sufficient warning or signal is erroneous in submitting a question of law.</p> <p>4. Instructions—practice of submitting abstract propositions. Abstract propositions of law should not be given to a jury as the jury are liable to be misled thereby.</p> <p>5. Negligence—what does not preclude recovery for injury to auto-</p> <p>mobile. The fact that the badge of the chauffeur was not in sight as required by statute will not defeat a recovery for an injury to an automobile resulting from the negligence of the defendant.</p>

Action in case for personal injuries. Error to the Circuit Court of Kane county; the I-Ion. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1911.

<p>1. Landlord and tenant—when hold-over wilful. If a lease has been duly terminated a hold-over justified only by inability to obtain other premises is wilful.</p> <p>2. Landlord and tenant—who may recover double rental for holdover. If the hold-over be wilful the grantee of the landlord may recover double rent as provided by section 2 of the Landlord and Tenant Act.</p>

<p>Administration of estates—when administrator may recover sum received in settlement of action for causing death of intestate. Attorneys who have prosecuted an action to recover for the death of an administrator’s intestate, upon compromising such action should not undertake to distribute the proceeds recovered but should turn the same over to the administrator for distribution by him. If such attorneys do make a distribution and it appears not to have been such a distribution as should have been made, the administrator may recover the full amount obtained in compromise, and such attorneys must seek their relief by appropriate order in the probate court.</p>

<p>Action in case. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Divorce. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1911.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Drank L. Hooter, Judge, presiding. Heard in this court at the April term, 1911.

<p>Bill in chancery. Appeal from the Circuit Court of Livingston county; the HoN. G-. W. Patton, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1911.</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, 1911.

<p>Administration of estates—who not entitled to award. A married daughter of the deceased who was living with such deceased at the time of his death is not entitled to an award where she was intending to resume her marital relations and was at least in part supported by her husband at the home of such deceased.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Lake county; the Hon. E. W. Wright, Judge, presiding. Heard in this court at the April term, 1911.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Bill in chancery. Error to the Circuit Court of Whiteside county; the Hon. Emery C. Braves, Judge, presiding. Heard in this court at the April term,-1911.</p>

<p>1. Animals—effect of trespassing. By the common law and under the law of this state, every owner of cattle or horses is bound to keep them from trespassing upon the close of another at his peril and is answerable for trespasses as for his own.</p> <p>2. Animals—what essential to establish liability for injury. If horses are unlawfully and wrongfully at large no redress can be had for injury to them unless caused by the malice or negligence of another.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. C. B. Campbell, Judge, presiding. Heard in this court at the April term, 1911.

<p>1. Common carriers—when evidence need not establish joint liability. If action is in tort charging negligence in the handling of merchandise, the evidence need not establish joint liability but a verdict and judgment against one carrier will be sustained if justified by the evidence.</p> <p>2. Common carriers—presumption as to condition of merchandise upon delivery to connecting carrier. When property is delivered to a carrier in good condition to be transported over its own line, and the line or lines of one or more other carrier, and the property is damaged en route, for the purpose of giving an effective remedy to the'owner, who can rarely prove what carrier was to blame for the damage, it is held proof that the goods were delivered to the owner at destination by the final carrier in bad order establishes a prima facie case against said carrier.</p> <p>3. Common carriers—what essential to bind shipper to limitations of liability. In order to bind the shipper to limitations of liability it must appear from a preponderance of the evidence that he knew and assented to such limitations.</p> <p>4. Common carriers—what does not establish assent to limitations of liability. The fact that the shipper filled up the bill of lading upon a blank furnished him by the initial carrier, is only evidence tending to show assent by the shipper.</p>

<p>Trover. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1911.</p>