Volume 165 — Illinois Appellate Court Reports

<p>Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1910.</p>

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Lake county; the Hon. DeWitt L. Jones, Judge, presiding. Heard in this court at the April term, 1911.

Action in case for personal injuries. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the April term, 1911.

Action in case for personal injuries. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1911.

Action commenced before justice of the peace. 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>Appeal from the County Court of Grundy county; the Hon. Geobge Bedford, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>Attachment and garnishment—how fraud must he established. If a conveyance urged as fraudulent does not so appear by the evidence the burden is upon the plaintiff to show that the defendant by such conveyance did actually render himself insolvent.</p>

Mechanic’s lien. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1911. Certiorari denied by Supreme Court (making opinion final).

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

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

<p>1. Feateenal benefit societies—when provision for suspension self-executing. A provision in the constitution of a fraternal benefit society is self-executing which provides that if a member be indebted for dues for a certain period he shall stand suspended without vote being taken to that effect.</p> <p>2. Fbatebnal benefit societies—what does not waive suspension. The acceptance of premiums after a suspension has automatically been effected, does not waive the suspension in the absence of evidence showing intention of waiver.</p>

<p>Assumpsit. Appeal from the Circuit Court of LaSalle county; the Hon. Edgab Eldeedge, Judge, presiding. Heard in this court at the April term, 1911.</p>

<p>1. Set-off—what not proper subject of. A matter originating after the institution of suit is not the proper subject-matter of set-off.</p> <p>2. Appeals and errors—when erroneous evidence afterwards stricken will reverse. If the harm resulting from the admission of erroneous evidence is not removed by the subsequent striking thereof, a reversal will he awarded.</p>

<p>Landlord and tenant—effect of hold-over. Where a tenant holds over after the expiration of his term, without any new contract in respect thereto, the landlord has the option to treat him as a trespasser, or waive the wrong of holding over and treat him as a tenant for another year, upon the same terms' as in the original lease; and if there is no conflict in the evidence as to the facts, the question whether such hold-over tenant became a trespasser is one of law to be determined by the court.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Lake county; the Hon. Chaims H. Donneely, Judge, presiding. Heard in this court at the April term, 1911.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the April term, 1911. Certiorari denied by Supreme Court (making opinion final).

Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>1. Executions—statute governing pro rating of proceeds conr strued. This statute which provides for pro rating proceeds of sale under executions on judgments rendered at the same term of court, has no application to special executions issued upon a claim allowed by the Probate Court, such special execution having for its sole function the redemption of real estate.</p> <p>2. Redemption—right of, defined. Held, that the statutory right of redemption is not real estate nor is it an interest legal or equitable upon which a judgment can become a lien.</p>

<p>Trover. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Judgments—effect of excessive rendition. If a judgment is for a larger amount than is claimed in the ad damnum,, it is erroneous.</p> <p>2. Fraternal benefit societies—construction of word “will” as employed in particular certificate. Held, in this case, that the word “will”, as applied to the manner of disposing of the benefit fund, should not be construed in its technical sense, but should be held as the equivalent of “wish”, “desire” or “direction”.</p>

<p>Action in case. Appeal from the Superior Court of Cook county; the Hon. Marcus Kayanaqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Mechanic’s liens—when contract sufficient. A contract for improvements to be made upon several separate though contiguous and adjacent lots made by the agent of the several owners of such lots is sufficient to support a lien for improvements made upon any of such lots which have not been paid for.</p> <p>2. Variances—when and how objection should be made. Objections charging variance must be specific, and in" chancery, if the testimony is taken before a master, should be made before him.</p> <p>3. Interest—when properly allowed. Lien claims by statute expressly bear interest.</p> <p>4. Interest—when unreasonable and vexatious delay established. If indebtedness is clearly established and it does not appear to have been denied, an unreasonable and vexatious delay of payment is established where the defense to' the action to recover such indebtedness is predicated solely upon technical grounds.</p> <p>6. Decrees—when sufficiency of evidence to support cannot be questioned. A defendant cannot, after a decree pro confesso against him, question the decree or the sufficiency of the evidence to support it.</p>

<p>This case is controlled by the decision in Chicago Brick Co. v. McLester, ante, p. 114.</p>

<p>1. Assignments—when, of chose in action, void. An assignment of an action for personal injuries is contrary to public policy and void.</p> <p>2. Fraud—when compromise of assigned claim not actionable. Held, that under the evidence, no fraud was shown which rendered actionable the compromise by the defendant of an action for personal injuries and that no action could be maintained against such defendant by an attorney to whom the claim in suit had been assigned.</p>

Bill in chancery. Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Certiorari denied by Supreme Court (making opinion final).

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, 1909.

<p>Fraternal benefit societies—effect of false answers in application. False answers as to health conditions and history if material, regardless of whether they constitute warranties, are a good defense to an action upon a certificate.</p>

<p>1. Slandeb and libel—how question of actionable character determined. Whether or not words and writings are actionable per se, is a question for the court and not for the jury.</p> <p>2. Slandeb and libel—how question of privilege determined. The question whether words and writings are privileged is a question for the court and not for the jury.</p> <p>3. Slandeb and libel—what communications are privileged. All communications, either verbal or written, passing between public officials pertaining to their duties, and in the conduct of the public business, are of necessity absolutely privileged.</p> <p>4. Slander and libel—what not publication. The repetition of privileged communications at the reguest of the attorney and representative of the party charging libel, is not a publication which will confer a right of action.</p>

Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Certiorari denied by Supreme Court (making opinion final).

Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

Bill for specific performance. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Certiorari denied by Supreme Court (making opinion final).

<p>Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Evidence—what not essential to competency of proof of custom. If a custom be general, knowledge thereof is not essential, as a person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business.</p> <p>2. Appeals and ebrobs—when absence of evidence cannot be urged. If waiver of particular proof has been made the party so waiving cannot urge the absence of proof so waived.</p> <p>3. Sales—what establishes ability to pay. Ability upon the part of the purchaser to pay for merchandise ordered is established by the purchaser subsequently going into the market and making a like purchase at an advance in price.</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, 1909.

<p>1. Fraternal benefit societies—statute pertaining to payment of benefits construed. The statute of this state as follows: “The payment of such benefits in all cases being subject to compliance by the member with the contract, rules and laws of the society,” only relates to fraternal benefit societies organized under the laws of this state, and, further, it does not inhibit the application of the doctrine of waiver and' estoppel in an action to recover the amount of a benefit certificate issued by such a society.</p> <p>2. Fraternal benefit societies—what waives provision providing for suspension. A course of dealing by which a local branch of a fraternal benefit society regularly accepted premiums after the specific due dates thereof, operates to waive a provision providing for suspension in event of failure promptly to pay.</p>

Action in case for personal injuries. Appeal from, the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judgé, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Judgment by confession. Error to the Municipal Court of Chicago; the Hon. John H. T. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Assumpsit. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Appeals from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>. 1. Assumpsit—when peremptory instruction proper. If the evidence for the plaintiff does not establish joint liability upon the part of the defendants a peremptory instruction in favor of both defendants is proper notwithstanding no plea denying joint liability has been interposed.</p> <p>2. Assumpsit—when joint liability not established. Where, after collection, a judgment at law is reversed, no joint liability to return the proceeds of the collection exists against the party who received the same and his attorney who was not an assignee to whom a part thereof was disbursed*</p> <p>3. Assumpsit—when money not tortiously obtained. Held, that money was not wrongfully or tortiously obtained by a lawyer who in the absence of any stay order or supersedeas enforces a judgment of a court of competent jurisdiction in favor of a client against the judgment debtor, even though there may be then pending a writ of error which afterwards eventuates in a reversal.</p>

<p>1. Statute of Limitations—when new promise revives debt. “An unqualified admission that the debt was due and unpaid, accompanied by nothing said or done to rehut the presumption of a promise to pay it,” revives such debt.</p> <p>2. Evidence—when secondary, as to contents of letter should be received. If the non-production of an original letter is fully accounted for by competent evidence, the best evidence of its contents which is available should be admitted.</p>

Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in this court at the October term, 1909.

<p>1. Pleading—what recoverable under common counts. If the amounts paid as premiums upon indemnity policies are predicated upon estimates of wages paid, if the wages exceed the estimates an additional sum provided for in such event in the policy may he recovered under the common counts.</p> <p>2. Evidence—when competency under common counts waived. To admit a document without objecting to its competency under the common counts is to waive the right to interpose such an objection to other like documents.</p> <p>3. Insurance—burden to establish claim of additional premiums under indemnity policies. When once policies are issued and delivered at an estimated and agreed premium the burden of establishing a right to additional compensation is upon the company,</p>

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

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

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

<p>Fraud—when representation material. To represent that stock being sold is from the treasury of a corporation and that the proceeds thereof will pass to the corporation is a false representation of a material fact, if, in fact, such stock is the individual property of the party selling the same and the proceeds thereof are to be, and are, in fact, retained by such party.</p>

<p>Action for malicious prosecution. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>1. Larceny—what does not establish absolute ownership. Held, in an action for malicious prosecution that absolute ownership of property for the alleged felonious taking of which the arrest was made, was not established in the defendant in the malicious prosecution suit, by proof of a bill of sale coupled with an admission of prior lien.</p> <p>2. Instructions—when requires excessive degree of care. Held, that an instruction employing the word “satisfy” required a higher degree of proof than the law demands.</p> <p>3. Instructions—when definition of larceny erroneous. Held, that an instruction defining larceny which omitted the word “steal” and which contained the words “alleged to have been stolen”, was erroneous.</p> <p>4. Instructions—when refusal of correct will not reverse. In the absence of prejudice resulting, the refusal of correct instructions will not reverse.</p>

<p>Action in case. Appeal from the Circuit Court of Jasper county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1910.</p>

Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.

<p>Assumpsit. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadlet, Judge, presiding. Heard in this court at the October, term, 1910.</p>

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1910.

<p>Action in case. Appeal from the Circuit Court of St. Clair county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Mandamus—when does not He to compel laying of gas mains. Mandamus will not be awarded to compel the laying of gas mains if the right to lay gas mains as conferred by an ordinance is permissive and enabling and not imperative and obligatory. Beld, further, that the awarding of the writ will be denied in the absence of a showing that such mains are desired or needed by residents of the streets in Question and that there exists on such streets a sufficient demand for gas to insure to the company a sufficient return for its necessary outlay in laying such mains.</p>

<p>1. Deceit—what not defense to action of. Negligence is not available as a defense by a party who has been guilty of fraudulent conduct, as against his own deliberate fraud.</p> <p>2. Deceit—what not defense to action of. Where a defendant knowingly colludes with plaintiff’s agents to defraud the plaintiff, he is in no position to reap the advantages of his wrong by saying that plaintiff did not use reasonable prudence to detect the fraud of his agents whom he had a right to believe were looking out for his best interests.</p>

<p>1. Master and servant—when doctrine of assumed rish applies. “If a defect is so plain and obvious to the senses that, on the exercise of ordinary care, an employe would discover it, and he continues in the employment without complaint and without any assurances by the master that the defect will be repaired or the danger removed, he assumes the risks arising from it.”</p> <p>2. Master and servant—upon what doctrine of assumed rish based. Assumption of risk is not a term of the contract of employment or the agreement of ■ the parties, but is an incident of the relation of master and servant, based upon public policy and upon the maxim volenti non fit injuria.</p> <p>3. Master and servant—statutory construction; effect of pern alty. A statute does not change a rule of common law unless an intent appears. When a penalty is imposed for a breach of statutory duty, one entering into employment may in the absence of knowledge assume that the statute has been complied with; but the relation between the parties is not changed.</p> <p>4. Instructions—when peremptory proper. Where the evidence does not fairly tend to prove all the averments necessary to make out a case the court should direct a verdict for the defendant.</p> <p>5. Factoby Act of 1909—construed. The Factory Act of 1909 so-called does not abolish either the defense of assumed risk or that of contributory negligence.</p>

<p>1. Passenger and carrier—when declaration states cause of action. A declaration, states a cause of action where it in apt language charges that the plaintiff was a passenger for hire, that he was in the exercise of reasonable care for his own safety while attempting to alight from the car on which he was riding and that while he was attempting to alight therefrom he was injured by the negligence of the defendant in suddenly starting such car.</p> <p>2. Passenger and carrier—when negligence established. If it appear that the conductor in charge of the car upon which plaintiff was riding as a passenger did not afford to the plaintiff a sufficient opportunity to alight, negligence is established.</p> <p>3. Passenger and carrier—care required of latter, A carrier is required to exercise the highest degree of care for the safety of its passengers consistent with the practical operation of its roads.</p> <p>4. Passenger and carrier—what raises presumption of neglipence. An injury to a passenger during the course of his transportation upon a railroad, caused by apparatus furnished by and under the control of the company, raises a presumption of negligence, the burden of rebutting which rests upon such company.</p> <p>5. Pleading—when defective declaration cured. After verdict a declaration which defectively states a good cause of action is sufficient.</p> <p>6. Contributory negligence—person confronted with danger. A person suddenly confronted with danger without his fault, is not required by law to do any particular thing; and although in cooler ■ moments he might have acted differently, that does not necessarily establish a charge of negligence on his part.</p> <p>7. Appeals and errors-—when propriety of argument not saved for review. In order to save for review a ruling of the court upon remarks of counsel, such remarks, together with an exception to the ruling of the court thereon, must be preserved in the bill of exceptions.</p> <p>8. Instructions—when upon question of damages in prima facie case not erroneous. While it is usual to prove the wages earned and opportunities to earn same when the party injured is working for wages, it has never been held that a farmer or merchant must show what money or profits he is making when working for himself in such trades in order that he may recover for loss of time or inability to work.</p>

<p>Quo warranto. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Action in case. Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1911.</p>

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Clinton county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1911.

<p>Scibe facias—when upon recognisance held sufficient. Held, that the scire facias in this case stated a cause of action and sufficiently averred the essential elements to a recovery.</p>

Action in case 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, 1911.

<p>1. Injunctions—when do not lie to restrain right to prospect mine. If the lessee in a mining lease is given the right to terminate the same at any time equity will not enjoin the execution by the lessor of a new lease etc., notwithstanding such lessee endeavors to waive such right of termination.</p> <p>2. Landlord and tenant—when waiver ineffectual. A waiver by the lessee of a right to terminate his lease, is ineffectual as against the lessor unless concurred in by him.</p>

Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Franklin county; the Hon. Thomas J. Layman, Judge, presiding. Heard in this court at the March term, 1911.

<p>Forcible detainer. Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1911.</p>

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

<p>Action in case. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Verdicts—when not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence where not clearly and manifestly against its weight.</p> <p>2. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in other instructions given.</p>

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

<p>Assumpsit. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Appeals and errors—how motion to dismiss must be made. The rules of the 4th District require that motions to dismiss appeals must he in writing and a motion to dismiss an appeal not in writing which does not go to the merits of the case cannot be considered.</p> <p>2. Negotiable instruments—when subject to defenses. An assignee of a negotiable instrument is not an innocent purchaser if attached to the note when purchased was a contract and the note recited that it was “given to comply with the contract attached and is a part of said contract.”</p>

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

<p>Easements—when equitable, exist. Where the proprietors of lots establish a plan or scheme to create a desirable residence district and to that end adopt certain building restrictions, such restrictions will be enforced as against a purchaser with notice in favor of a purchaser who was induced to acquire his property by reason of such restrictions.</p>

<p>Criminal law—when insufficiency of complaint not material. It is the duty of the court to which an appeal is taken from the judgment of a justice of the peace to hear and determine the ordinance violation charged according to the justice of the qase without regard to the proceedings before the justice or the manner of the arrest, etc. It is sufficient if the justice had jurisdiction of the subject-matter.</p>

<p>Comtracts—What does not create implied promise to pay in excess of contract price. If deliveries of brick are made pursuant to a written contract, no implied promise is created requiring the payment of a price in excess of that fixed in the contract by the vendor giving notice that the price of future deliveries of brick would be advanced.</p>

<p>1. Appeals and errors—when finding of court not subject to review. Where a case is tried before the court without a jury and no exception is taken to the finding and judgment, error cannot he assigned thereon in the Appellate Court; such exception must appear in the bill of exceptions.</p> <p>2. Appeals and errors—when question of law not preserved. If it is desired to preserve in the record the rulings of the court as to the law applicable to the case where the trial is by the court without a jury, the trial court should be required by propositions submitted to give its holdings as to the law.</p> <p>3. Appeals and errors—when evidence presumed to support finding. If the bill of exceptions does not purport to contain all the evidence it will be presumed that the court heard other evidence and that such other evidence so presumed to have been heard was sufficient to support the finding and judgment.</p> <p>4. Appeals and errors—when ruling upon motion to withdraw pleas not subject to review. In order to review the ruling of the court upon a motion to withdraw pleas, such motion, the ruling thereof and the exception to such ruling must be preserved by the bill of exceptions.</p>

Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the March term, 1911.

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Vbbdicts—when set aside as against the evidence. A verdict will be set aside on review where it appears to the Appellate Court that it is against the overwhelming weight of the evidence.</p> <p>2. Evidence—what incompetent as self-serving declarations. A letter, the contents of which are self-serving declarations by the party offering it, is incompetent especially where the effect would be to give such party the benefit of what it was claimed other parties would testify to who were not witnesses in the suit.</p>

<p>Assumpsit. Appeal from the Circuit Court of St. Clair county; the Hon. L. Bernreutes, Judge, presiding. Heard in this court at the March term, 1911.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Lotos Bernbeutee, Judge, presiding. Heard in this court at the March term, 1911.

<p>1. Dbam-shofs—proximate cause in action under section 9 of Act defined. “The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It- is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster. The proximate cause is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss."</p> <p>2. Dbam-shofs—sections 8 and 9 distinguished. Under section 8 there could only be a recovery for the care of the intoxicated person, while under section 9 there can be a recovery for injury or death although the person injured or killed was not intoxicated.</p>

Action in case for personal injuries. Appeal from the City Court of Alton; the Hon. James E. Dunnesan, Judge, presiding. Heard in this court at the March term, 1911.

<p>Bill in chancery. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1911.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Jefferson county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1911.

<p>1. Instructions—when, to disregard count, should be given. An instruction to disregard a count in a declaration should be given if there is no evidence which tends to support its averments.</p> <p>2. Pleading—when declaration insufflcient to support verdict. A declaration which charges no negligence on the part of the de fendant is insufficient to support a verdict rendered in an action on the case for personal injuries.</p> <p>3. Pleading—what declaration in personal injury action must aver. In such an action the declaration should allege the duty of the defendant, the breach of that duty and the resulting injury.</p> <p>4. Negligence—when doctrine res ipsa loquitur does not apply. Held, under the circumstances in evidence that the breaking of a cable was not such an occurrence as brought into operation the doctrine res ipsa loquitur.</p>

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

<p>Action in case. Appeal from the Circuit Court of Effingham county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the March term, 1911.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1911.

<p>1. Landlord and tenant—when obligation of former to repair not established. Held, under the facts and circumstances of this case it did not appear that the landlord was under any obligation to make repairs.</p> <p>2. Landlord and tenant—duty of former upon abandonment. “Upon the abandonment of the leased premises by the tenant, it was the right and duty of the landlord to take charge of the premises, preserve them from injury, and if it could, re-rent them, thus reducing the damages for which the lessee was liable.”</p>

Action in case for personal injuries. Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1911.

<p>Separate maintenance. Appeal from the Circuit Court of Johnson county; the Hon. William W. Butlek, Judge, presiding. Heard in this court at the March term, 1911.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Bun-can, Judge, presiding. Heard in this court at the March term, 1911.

<p>1. Partnerships—particular contracts construed as showing a joint adventure. Held, under the terms of the contracts in question in this case, that they did not, strictly speaking, show a partnership but did establish a joint adventure and a community of interest having something of the elements of a partnership, and that the rights and interests of all parties concerned were so complex as to require the intervention of a court of equity.</p> <p>2. Pleading—when cross-hill may he maintained. Where the subject-matter of the litigation is within the jurisdiction of the court and all of the parties in interest in a fund are before the court it is proper that a cross-bill be filed and it is the duty of the court to take cognizance of such cross-bill and determine the respective rights and interests of the parties therein and thereto.</p>

<p>1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence where it is not clearly and manifestly against its weight.</p> <p>2. Instructions—when improper will not reverse. The giving of an instruction not applicable to the facts of the case will not reverse unless prejudice resulted.</p> <p>3. Instructions—when cannot be complained of. A party cannot complain of the vice of an instruction where instructions tendered by him and given contain a like vice.</p>

<p>Error to the County Court of Massac county; the Hon. Lannis P. Oakes, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Appeal from the Circuit Court of Wayne county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Bill in equity. Appeal from the Circuit Court of Monroe county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Verdicts—when set aside as against the evidence. A verdict will be set aside on review as against the evidence where the Appellate Court is of opinion that it is clearly and manifestly against the weight thereof.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).

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

<p>Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1911.</p>

Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. Mobtimeb Miliabd, Judge, presiding. Heard in this court at the March term, 1911.

<p>1. Wills—cardinal rule of construction. “The paramount rule in the exposition of wills, to which all others must bend, is, that the intention of the testator as expressed in the will must be ascertained and given effect if not prohibited by law.”</p> <p>2. Wills—when estates vest. "It has long been the settled rule of construction in the courts that estates, legal or equitable, given by will should be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent on a future event.”</p> <p>3. Wills—when estates vest. If the postponement of time of payment is for the benefit of the estate, a gift will vest immediately upon the death of the testator.</p>

Action in case for death caused by alleged wrongful - act. Error to the Circuit Court of Perry county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March t^rm, 1911. Certiorari denied by Supreme Court (making opinion final).

Action commenced before justice of the peace. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1911.

Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1911.

<p>1. Master and servant—what not obligation of former. The law does not require that the master should use all of the most approved attachments to his machinery.</p> <p>2. Master and servant—what essential to recovery by latter. “The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: First, that the appliance was defective; second, that the master had notice thereof, or knowledge, or ought to have had, and third, that the servant did not know of the defect and had not equal means of knowing with the master.”</p>

Action in case for personal injuries. Appeal from thd Circuit Court of Madison county; the Hon. Louis Bebnbeúteb, Judge, presiding. Heard in this court at the March term, 1911.'

<p>Trespass on the ease. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.</p>

Action in case for death caused by alleged wrongful act. Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1911.

<p>Consolidated for Hearing.</p> <p>1. Vendor and vendee—when lien of latter arises. "The legal title remains in the vendor, who has simply agreed to convey, while the vendee, although having as yet acquired no legal interest in the land by virtue of the contract, does obtain a lien upon it as security for the purchase money he has paid, and for the performance of the vendor’s obligation to convey.”</p> <p>2. Vendor and vendee—when lien of latter does not exist. If the vendor refuses to convey or the vendee properly declines to complete the sale, the right of a vendee’s lien attaches; but if the conveyance is made, whether in accordance with the terms of a contract or otherwise and the title of the vendor passes to the vendee, then no lien can exist.</p>

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.

Action in case for personal injuries. Appeal from the City Court of Bast St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the March term, 1911.