Volume 209 — Illinois Reports

James S. Baume, Judge, presiding. This is an appeal from the Appellate Court for the Second District, which affirmed a judgment of the circuit court of Stephenson county for $2000 in favor of appellee, 'against appellant. The suit was an action of trespass on the case, to recover for a personal injury alleged to have been received on account of negligence of appellant.

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from, the Circuit Court of Cook county; the Hon. E. W. Burke, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Greene county; the Hon. O. P. Thompson, Judge, presiding.</p>

<p>1. Benefit societies—“suicide" means voluntary, intentional self-destruction. The word “suicide” means voluntary, intentional self-destruction, and not self-destruction by one who at the time is incapable, by reason of unsoundness of mind, of resisting an insane impulse to take his own life or to understand the general nature or consequences and effect of his act.</p> <p>2. Same—suicide clause construed. A suicide clause in a by-law-exonerating the society from liability in case of suicide by the member unless the beneficiary shall prove affirmatively that the member had been judicially declared insane, or was under treatment for insanity or was in the delirium of other illness, merely relieves the beneficiary from proving the degree of insanity in case he proves any of the facts specified, but does not necessarily require proof of any of such facts to warrant a recovery.</p>

<p>1. Homestead—homestead estáte is an estate in land. Under section 4 of the Exemptions act the homestead estate is an estate in land and not merely an exemption, and when the interest of the householder does not exceed $1000 in value the homestead estate comprises his entire title, leaving no interest to which liens can attach or which he can convey separately.</p> <p>2. Same—homestead estate is based upon title of the householder. The estate of homestead can have no separate existence independent' of the title of the householder, which title constitutes one of its essential elements and from which it is inseparable.</p> <p>3. Same—descent of homestead estate. Upon the death of the householder the homestead estate devolves upon the surviving wife or husband for life and upon the children of the householder during the minority of the youngest child, and the heirs-at-law take a reversionary interest only, expectant upon the termination of the estate of homestead.</p> <p>4. Same—act requiring a release of homestead applies to deeds between husband and wife. Section 4 of the Exemptions act, requiring a conveyance of homestead to be in writing, signed by the householder and his wife, applies to deeds made between husband and wife.</p> <p>5. Same—deed of homestead by husband to wife is a nullity unless she joins therein. A conveyance of homestead property not worth over $1000, from husband to wife, she not joining therein and acknowledging the same as required by statute, is a nullity and passes no title whatever.</p> <p>6. Same—when the consideration paid is not a lien on homestead estate. The amount paid by the wife as consideration for a conveyance of the homestead property to her by her husband, in-which she did not join, is not a lien, in law or in equity, upon the land, if property was not worth over $1000.</p>

Writ op Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Johnson county; the Hon. A. K. Vickers, Judge, presiding.

<p>1. Appeals and errors—motion for new trial is essential to question sufficiency of evidence. A motion for new trial is essential to preserve for review the question whether or not the verdict is contrary to the evidence.</p> <p>2. Criminal law—verdict for robbery need not find age of accused. A verdict finding the accused guilty of the crime of robbery need not find the age of the accused.</p> <p>3. Same—verdict need not fix time of imprisonment. A verdict need not fix the time of imprisonment of a person found guilty of a crime which, under the statute, is punishable by imprisonment in the penitentiary for an indeterminate period.</p>

<p>Appeal from the County Court of Peoria county; the Hon. W. I. Slemmons, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. R. S. Tuthill, Judge, presiding.</p>

<p>Deeds—when deed is void for uncertainty. A deed conveying a certain described quarter section of land, “except the south-east corner,” is void for uncertainty of description, where the excepted portion is not otherwise described and cannot be ascertained from the description in the deed.</p>

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Bond county; the Hon. B. R. Burroughs, Judge, presiding.

<p>Appeal from the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.</p>

<p>1. Instructions—instructions should not be argumentative. Instructions are properly refused which do not state propositions of law but are in the nature of arguments.</p> <p>2. Same—repetitions of instructions need not be given. It is sufficient if the jury has been instructed once upon any proposition involved in the case, and mere repetitions are properly refused.</p> <p>3. Same—general objection to instruction waives the error. One complaining of an instruction should point out to the court of review wherein it is erroneous or he will be deemed to have waived error.</p> <p>4. Same—party cannot object to proposition embodied in his own instruction. One cannot assign error on his opponent’s instruction where one of his own embodies the same proposition complained of.</p>

L. Honors, Judge, presiding. This is a bill, filed in the circuit court of Cook county on June 19,1899, by the appellees against the appellants, and other parties herein named, for partition, and for the removal of certain deeds and trust deeds as clouds upon the title of the appellees. Answers were filed to the bill, and a reference was taken to a master in chancery, who took testimony, and reported the same, and his conclusions.

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

Elbridge Hanecy, Judge, presiding. This was an action of assumpsit, commenced in the circuit court of Cook county by Andrew Peterson, for the use of the Masonic Building, Loan and Savings Association, against the Hartford Fire Insurance Company, to recover the amount of a policy for the sum of $1700 issued by said insurance company to Peterson on March 24,1893, upon a dwelling house belonging to Peterson, located upon premises situated in Hegewisch, Cook county, Illinois,…

Jesse Holdom, Judge, presiding. On July 30, 1902, Norman P. Cummings, one of the appellees, and Henry H. Gage, one of the appellants, entered into a written contract with each other for the exchange of certain land therein specifically described, Cummings to make convejmnce to Mary B. Gage, and Gage to convey to either Cora C. Willett or said Cumming's. Gage was also to pay the sum of $1000 cash and give a note for $5000, to be secured by trust deed on the property to be…

Appeal, from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Russell P. Goodwin, Judge, presiding.

<p>Appeal from the Circuit Court of Logan county; the Hon. John H. Moffett, Judge, presiding.</p>

Writ of Error to the Circuit Court of Coles county; the Hon. H. Van Sellar, Judge, presiding.

<p>Damages—damages for wrongful issue of an injunction must not be remote or speculatwe. Damages recoverable for the wrongful suing out of an injunction must be such as naturally and approximately result therefrom, and remote or speculative damages cannot be taken into consideration.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Kane county; the Hon. Charles A. Bishop, Judge, presiding. This is a bill, filed on January 4, 1902, in the circuit court of Kane county by the plaintiff in error against the defendants in error for the redemption of a farm of two hundred and twenty acres in that county.

Harry Higbee, Judge, presiding. This is an appeal from a decree of the circuit court of Pike county, rendered at the June, term, 1903, setting aside an instrument dated January 18, 1902, which had been admitted to probate in that county as the will of Levi Killebrew, deceased, who departed this life on the 26th day of January, 1902, leaving as bis heirs-at-law his children Finis Killebrew, William Killebrew, Zerilda Burbridge, and his grandchildren, Albert Smith, Burton…

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding.</p>

<p>1. Indictment—when an indictment for larceny as bailee is sufficient. An indictment for larceny as bailee is sufficient which charges the crime substantially in the words of the statute defining the offense, and it is not necessary to allege the particular facts constituting the crime, as in case of larceny at common law.</p> <p>2. Verdict—verdict in criminal case will stand unless there is a well founded doubt of guilt. The verdict of the jury in a criminal case will not be set aside by a court of review on the facts, unless there appears, from all the evidence, a reasonable and well founded doubt of the guilt of the accused.</p> <p>3. Criminal law—one assisting bailee to commit larceny is a principal. That one of the two persons jointly indicted for larceny as bailees received his share of the money from his co-defendant, and not from the owner, as his agent, does not prevent his conviction as a principal, where he aided and abetted the other defendant in obtaining the money from the owner and in the conversion thereof.</p>

<p>Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal irom the Superior Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding.</p>

<p>1. Practice—an assignment of errors must be signed by party or his attorney. The assignment of errors is the pleading of the appellant or plaintiff in error and must be signed by him or his attorney, and absence of such signature is ground for motion to dismiss.</p> <p>2. Evidence'—when failure of a judgment to recite service does not render it inadmissible. Failure of a judgment to recite service of process does not render it inadmissible in evidence in ejectment, where the process itself is in evidence and shows service.</p> <p>3. Notice—what sufficient notice to administrator before issuing execution. The statute requiring service of notice upon an administrator before the issue of an execution upon a judgment against the intestate contemplates personal service, but is sufficiently complied with if the notice is mailed to the administrator, who received it.</p> <p>4. Judgments and decrees—execution must conform to the judgment. An execution is not admissible in ejectment as tending to sustain title acquired under a sale to satisfy a judgment, where it does not follow the judgment, but appears to have been issued upon a different" judgment from the one on which the sale was based.</p> <p>6. Same —purpose and form of judgment of revivor. The purpose of a revivor is to give a dormant judgment its original force as a lien upon the judgment debtor’s property, and the proper form of the judgment is to award execution for the amount of the original judgment, with interest from the rendition, and costs.</p> <p>6. Same—death of judgment debtor does not extinguish the judgment. Death of a judgment debtor more than a year after the judgment was rendered does not affect the force of the judgment, notwithstanding it has ceased to be a lien upon his land because no execution was issued within the year.</p> <p>7. Same—-when execution may issue against land after the judgment debtor’s death. While title to the land remains in the heirs, an execution may issue at any time within seven years from the date of the judgment against the deceased ancestor, excepting that it cannot issue for a year after the latter’s death and after three months’ notice to the heirs or legal representatives, which time is not included within the seven years.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.</p> <p>In this case a bill is filed by appellant, Mallín, against appellee and Armour & Co. ■ Mallín, for several years prior to the commencement of this suit, was employed continuously by Armour & Co. on a salary of $100 per month. He had no definite contract of employment, but was employed from month to month. Between October, 1897, and June, 1898, he from time to time borrowed money from appellee at usurious rates of interest. He obtained $342 more from Wenham than he ever paid back. On June 3, 1898, to secure his indebtedness to Wenham, he executed and delivered an assignment of wages, as follows:</p> <p>“For a valuable consideration to me in hand paid by O. F. Wenham, the receipt whereof is hereby acknowledged, I do hereby transfer, assign and set over to said C. F. Wenham, his heirs, executors, administrators or assigns, all salary or wages, and claims for salary or wages, due or to become due me from Armour & Co., or from any other person or persons, firm, co-partnership, company, corporation, organization or official by whom I am now or may hereafter become employed, at any time before the expiration of ten years from the date hereof.</p> <p>“I do hereby constitute, irrevocably, the said O. F. Wenham, his heirs, executors, administrators or assigns, my attorney, in my name to take all legal measures which may be proper or necessary for the complete recovery and employment of the claim hereby assigned, and I hereby authorize, empower and direct the said Armour & Oo., or any one by whom I may be employed as above, to pay the said demand and claim for wages or salary to the said 0. F. Wenham, his executors, administrators or assigns, and hereby authorize and empower him or them to receipt for the same in my name.</p> <p>“Chicago, Ill., third day of June, 1898.</p> <p>j y- jyjALLIN »</p> <p>On May 3, 1899, Mallín filed his petition in - bankruptcy, and his indebtedness to 0. F. Wenham was scheduled in his bankruptcy proceedings, and Wenham had notice thereof. On October 23,1899, he obtained his discharge in bankruptcy. Subsequently Wenham brought suit in the name of Mallín, for the use of Wenham, against Armour & Oo., claiming the wages of Mallín by virtue of the above assignment. Mallín thereupon filed his bill without offering to re-pay the $342, or any part thereof, and prayed that said assignment be declared null and void, and that Wenham be restrained from prosecuting any suit against Armour & Co. or in any manner interfering with Mallin’s salary. It was so decreed by the trial court, which decree, on appeal to the Appellate Court, was reversed and judgment entered in behalf of appellee. The Appellate Court having granted a certificate of importance, the case is now before this court.</p> <p>The appellant urges as error the action of the Appellate Court in refusing to affirm the decree of the circuit court, in reversing said decree, and in directing the circuit court to dismiss the bill of complaint.</p> <p>The assignments of error and the argument of appellant raise the following questions: (1) Whether an assignment transferring wages to be earned in the future, under an» existing employment, is valid; (2) is such an assignment against public policy; (3) the effect of a discharge in bankruptcy of a debtor, upon security or liens created by assignment.</p>

<p>1. Appeals and errors—the question of possession is one of fact. "Whether the lessee or his mortgagee was in possession of the mortgaged stock at the time of the levy of a distress warrant by the lessor is a question of fact conclusively settled by the verdict of the jury and the judgment of the Appellate Court.</p> <p>2. Mortgages—possession by the mortgagee cures irregularities in the mortgage. Possession of mortgaged property by the mortgagee before other rights attach is good as against everybody, even though the mortgage did not create a lien as against third persons.</p> <p>3. Same—note is good between parties though it does not state that it is secured. As between the parties it is not necessary the note state on its face that it is secured by chattel mortgage, if possession is taken by the mortgagee before the lien of a third party attaches.</p> <p>4. Evidence—admissibility of irregular mortgage in evidence. In an action of trover by a mortgagee of chattels against the mortgagor’s landlord, who took the property from the mortgagee’s possession by a distress warrant, the mortgage, if good between the parties, is admissible to show the indebtedness and the contract between the parties, though it did not create a lien as against others.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.</p>

<p>1. Res judicata-—when judgment of Appellate Courtis not res judicata. A judgment of the Appellate Court reversing a decree of the circuit court in a divorce case upon the sole ground that the court was without jurisdiction, after the term at which the decree was rendered, to amend the same by adding a provision terminating complainant’s homestead and dower rights, is not res judicata as to such rights in a subsequent suit involving them.</p> <p>2. Divorce-—disposition of homestead must be according to statute, if decree is silent. In decreeing a divorce the court may dispose of the homestead estate according to the equities of the case, but if the decree is silent upon that question the homestead must be disposed of as directed by the statute.</p> <p>3. Same—when homestead estate remains in the husband after decree of divorce. Where a decree of divorce for extreme and repeated cruelty of the husband makes no specific disposition of the homestead estate the latter remains in the husband, if he holds the record title, discharged of all claims of the wife. (Stahl v. Stahl, 114 Ill. 375, followed.)</p> <p>4. Same—desertion of husband may be considered in disposing of homestead estate. In exercising its discretion to dispose of the homestead estate “according to the equities of the case,” the court, in granting a decree of divorce, may consider the desertion of the husband.</p>

<p>Appeal from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. M. W. Schaefer, Judge, presiding.</p> <p>This was an action of assumpsit in the circuit court •of St. Clair county by appellees against the Supreme Lodge Knights and Ladies of Honor. The declaration was filed to the January term, 1902, of that court, and consisted of one special count for the amount of a certain benefit certificate. It sets out the facts that on March 22, 1893, the defendant issued its policy of insurance on the life of Elizabeth Menkhausen in the sum of $1000, payable, at her death, to her husband, Gustav Menkhausen; that on November 9,1893, Elizabeth Menkhausen departed this life, and that due proof was then and there furnished the defendant of her death, according to the rules, laws and regulations of the defendant; that said Gustav Menkhausen, on August 6, 1895, instituted a suit upon said policy and the defendant appeared and filed a plea. This plea is then set out in full, the substance of which was, that Gustav Menkhausen willfully murdered his wife and was sentenced to be hung, but that the sentence was commuted by the Governor to imprisonment for life, and that said Gustav was, at the time of filing the plea, in .the penitentiary under such sentence. The declaration further avers that the only issue in said suit was whether the fact that Gustav Menkhausen murdered his wife was a bar to his suit; that upon a trial a verdict was returned for the defendant, judgment was entered on the verdict, and that judgment is still in force.</p> <p>It is averred by the declaration that the defendant is organized under the laws of Kentucky, Missouri and Indiana, for the purpose of promoting benevolence and charity by establishing a relief fund, from which, on satisfactory evidence of the death of a member, a sum not exceeding $5000 shall be paid to such member of his or her family, or person dependent upon or related to him or her, as he or she may have directed; that the defendant is doing business in this State and has complied with the laws thereof governing fraternal beneficiary societies; that the by-laws of the defendant provide that a benefit may be made payable to the wife or husband, children and grandchildren, parents, brothers and sisters, grandparents, nieces and nephews, cousins, aunts and uncles, or to the next of kin who would be distributees of the personal estate of the member upon his death intestate, in the order above named. It is then averred that by reason of the death of Elizabeth Menkhausen, and proof of that fact, and by reason of the fact that because of her death at the hands of Gustav Menkhausen it became impossible for him to recover upon said policy or benefit certificate or to receive the proceeds thereof, the said amount named in said certificate became due and payable to the plaintiffs herein, and that the defendant has not paid the said sum of $1000 to the plaintiffs or to any other person, but refuses so to do.</p> <p>The declaration then avers that Elizabeth Menkhausen died intestate, leaving plaintiffs as her only children and heirs-at-law; that plaintiffs were members of her family, were her heirs and blood relations, and were dependent upon her for their support.</p> <p>A demurrer interposed by the defendant to this declaration was overruled by the court, and the defendant electing to stand by its demurrer, judgment was entered in favor of the plaintiffs for $1000. An appeal was taken by the lodge to the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed. The Appellate Court granted a certificate of importance, and appellant appealed to this court.</p> <p>Appellant urges as reasons why the demurrer should have been sustained, the following:</p> <p>First—-Because appellees have no right, title or interest in said benefit certificate, or any part thereof, and cannot maintain any action thereon.</p> <p>Second—The act of the legislature of June 22, 1893, for the organizing and management of fraterrial beneficiary societies, has no application to this case, as it was passed after the benefit certificate was issued; and the act of the legislature approved June 16,1887, under which this benefit certificate was issued, confers no authority on appellees to maintain this suit.</p> <p>Third—The murder of the assured by the beneficiary named in the benefit certificate was not one of the risks insured against and covered by the benefit certificate, and therefore no action can be maintained on said benefit certificate, or for the amount therein specified, by appellees ag'ainst appellant.</p>

<p>Writ op Error to the Circuit Court of Saline county; the Hon. A. K. Vickers, Judge, presiding.</p>

<p>Appeal, from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.</p> <p>On May 27, 1903," appellant commenced this suit in equity in the circuit court of Pike county. The bill alleges that Luther Stebbins, the complainant, on October 21, 1868, became seized in fee of certain real estate situated in that county; that he occupied the land as a home until about July 10, 1902, when he conveyed the same, being all of his property, to his adopted daughter, Emily Petty, reserving a life estate to himself therein; that Emily Petty died on October 31,1902, leaving her surviving Joseph Petty, her husband, and Estill Miller Petty and Marion Luther Petty, her minor children, and that she left no assets or personal property whatever. The bill then alleges that the deed of July 10, 1902, a copy of which is attached to the bill and made a part thereof, contains the following condition: “Reserving, however, a life estate in said land, and in further consideration of this deed the said grantee, Emily Petty, agrees and binds herself, her heirs and assigns, to properly maintain the said grantor, in sickness and in health, during his natural life, which undertaking of support and maintenance is hereby made a lien on the land hereby conveyed, situated in said Pittsfield township, county of Pike and State of Illinois.”</p> <p>The bill then alleges that Emily Petty accepted the conditions of said deed; that since the death of Emily Petty her husband and said children have failed to support and maintain the complainant; that they have been often requested to do so, but have refused; that the complainant has made repeated requests of said Joseph Petty to pay for the complainant’s board and support, and sets out that said Joseph Petty, in his own right and as the natural guardian of said minors, has refused, and still refuses, to carry out the agreement of Emily Petty contained in said deed. It is alleged that the consideration of the deed has utterly failed; that said children are minors, and asks the court to appoint a guardian ad litem for them. The prayer of the bill is, that the deed be canceled and set aside and complainant re-invested with the title in fee to the land, and for general relief. Joseph Petty and the two children above mentioned are made defendants. The consideration expressed in the deed from Luther Stebbins to Emily Petty is “$100 and love and affection, in hand paid.”</p> <p>The circuit court appointed Jefferson Orr and W. E. Williams as guardians ad litem for the infant defendants. The defendants demurred to the bill. The demurrer was sustained and a decree was entered dismissing the bill at complainant’s costs. This is an appeal from that decree.</p>

<p>1. Propositions op law-proposition calling for holding on question of fact is properly refused. The purpose of section 41 of the Practice act, relating to propositions of law, is to enable the parties to obtain the opinion of the court on controlling questions of law, and a proposition calling for a holding upon a question of fact is properly refused.</p> <p>2. Same—when propositions call for holdings of fact. In an action by the lessee of a dock to recover from the succeeding lessee the value of planking put down by the plaintiff, which the defendant refused to allow plaintiff to remove, propositions asking the court to hold such planking to be a fixture, trade fixture, of no market value, etc., call for findings of fact where the evidence is conflicting, and are properly refused.</p>

Frank Baker, Judge, presiding. On August 24, 1887, Emily A. King, being the owner of the east half of lot eight (8), in block seventy (70), in the original town (now city) of Chicago, and Jacob Beidler, being- the owner of the west] half of said lot 8, entered into an agreement, which, after reciting the desire of the parties that a party wall of sufficient thickness for a six-story brick building should be erected, the center line of which should be located on the west line…

<p>1. Specific performance—specific performance is not a matter of right. Even though a contract is in itself reasonable, fair, mutual and certain, yet the question whether.it shall be specifically enforced rests in the sound discretion of the chancellor, governed by legal rules and principles.</p> <p>2. Same—unreasonable delay may defeat specific performance. Unreasonable and unexplained delay by a party in seeking specific performance of a contract is ground for refusing the relief prayed.</p> <p>3. Same—ordinarily a contract must be mutual to be capable of specific enforcement. A contract which is lacking in mutuality of obligation and remedy will not ordinarily be specifically enforced by equity.</p>

<p>1. Negligence—questions of negligence and of credibility of witness are for the jury. Whether the failure to look before crossing a railroad is negligence, and whether plaintiff’s testimony is true that he looked back before driving upon the track but saw no car approaching, are questions to be determined by the jury.</p> <p>2. Same—negligence not presumed, but circumstances may shift burden. While negligence is not, as a general rule, to be presumed, yet the circumstances of the injury may themselves afford prima facie evidence of negligence, and in such case the defendant has the burden of rebutting the prima facie case by showing reasonable care.</p> <p>3. Same—when doctrine of res ipsa loquitur applies. The doctrine of res ipsa loquitur applies to a case where the plaintiff was injured by a collision between his wagon and an electric sprinkling car belonging to and under management of the defendant company, which car was at the time running wild, with no one in charge.</p> <p>4. Same—whether rebuttal evidence overcomes prima facie case is for the jury. Whether defendant’s evidence in explanation of the manner in which its electric car escaped from the man in charge is sufficient to overcome the prima facie case of negligence arising from its running wild and colliding with plaintiff’s wagon is a question for the jury.</p> <p>5. Pleading—when allegation of negligence is sufficiently general to meet the proof. An allegation that the defendant street railroad company “carelessly, negligently and wrongfully ran and managed its car,” is sufficiently broad to meet proof that the employee in charge of the car fell off, allowing the car to run wild.</p>

<p>1. Appeals and errors—when alleged improper evidence will not be considered. Alleged improper evidence will not be considered on appeal, where it is not pointed out or reference made to the pages of the abstract where it appears and the abstract is not indexed.</p> <p>2. Same—when improper remarks of counsel will riot reverse. Improper remarks of counsel, which he withdrew, telling the jury they were not to consider them, will not be ground for reversal unless it is apparent from the record that injury probably resulted therefrom.</p> <p>3. Same—when an error in limiting number iff instructions will not be considered. Error in limiting the number of instructions to be given will not be considered, where no objection or exception was taken to the action of the court and where appellant did not offer any instructions in excess of the number limited.</p>

<p>Appeal from the Circuit Court of Franklin county; the Hon. P. A. Pearce, Judge, presiding.</p>

<p>1. Evidence—what constitutes the “record” of a local weather bureau. The letter-press book in which the custodian of the records of a local weather bureau takes copies of the blanks on which weather conditions are made up each month constitutes the' record of the local bureau, where the original blanks are sent to the general department after copying.</p> <p>2. Instructions—when irregularity in presenting instructions is not prejudicial. The action of the trial court, after reading an instruction marked “given” to the jury, in stating orally that he wished to modify the instruction and would not give it, is not prejudicial, where the instruction is afterwards withdrawn by the court and marked “refused,” thus saving the right of review.</p> <p>3. Same—when an instruction is properly modified. An instruction directing a verdict for the defendant in an action for negligence is properly modified so as to make it effective only in case the jury •finds the plaintiff did not exercise ordinary care for her safety.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Gr. W. Patton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District;—heard in that court- on appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. 1</p>

Charles Blancharii, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Second District affirming a judgment of the circuit court of LaSalle county sustaining a demurrer to the declaration in an action on the case and dismissing the suit.

A. K. Vickers, Judge, presiding. This is a bill, filed on October 4, 1900, in the superior court of Cook county, which, as finally amended, is substantially a bill to secure an equitable redemption from a foreclosure sale. Some of the defendants demurred to the bill, and some of the defendants answered the bill.

Charles G. Neely, Judge, presiding. ' Appellee, on September 21, 1899, filed his claim for $125,000 in the probate court of Cook county against the -estate of Andrew E. Smythe, deceased. That court, after hearing the evidence, entered an order disallowing the claim. Evans appealed to the circuit court of Cook •county, where- the case was tried before a jury and a verdict was rendered in favor of appellee for $82,760.97.

<p>Appeals and errors—;judgment will be affirmed in absence of abstract of record. In case of failure to file an abstract of record as required by the rules, the Supreme Court will decline to consider the case on its merits and will affirm the judgment or decree.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of LaSalle county; the Hon. Charles Blanchard, Judge, presiding.

<p>Appeal from the Circuit Court of Warren county; the Hon. John A. Gray, Judge, presiding.</p>

<p>1. Eminent domain—when condemnation verdict will stand, on appeal. A condemnation verdict within the range of conflicting testimony and rendered after the jury viewed the premises will not be set aside on appeal as excessive or inadequate, unless it is manifestly against the weight of all the evidence.</p> <p>2. Same—when admitting incompetent evidence mil not reverse. Admitting incompetent evidence as to the amount which it will cost the petitioner to fill in the land condemned to make it suitable for the purpose of petitioner is not reversible error, unless it is apparent the jury were misled to defendant’s prejudice.</p> <p>3. Same—when admitting master’s certificate of sale of adjoining property is not error. If defendant’s witness testifies, as a basis for his opinion of the value of the property condemned, that he understood adjoining property was sold on foreclosure for between $300 and $400 per acre, the master’s certificate of sale showing the price to be but $63 per acre is properly admitted in rebuttal.</p>

E. P. Vail, Judge, presiding. The question presented by this suit is the determination of the priority of two certain mortgages or trust deeds.

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Jonas Hutchinson, Judge, presiding.</p>

<p>1. Damages—when instruction as to future damages may be given. An instruction authorizing the jury in a personal injury case to consider future pain and suffering or inability to labor may be given if there is evidence tending to show some permanent injury from which the future damages mentioned are reasonably certain to result, even though, at the time of the trial, plaintiff is doing the same work and earning the same wages as before the accident.</p> <p>2. Negligence—when instruction fixing standard of ordinary care is not objectionable. An instruction fixing the standard of ordinary care as that care and foresight which a person of ordinary prudence, caution and intelligence would “usually” exercise under the same or like circumstances is not objectionable on account of the use of the word “usually.” -</p>

<p>1. Pleading—entering a decree pro confesso without disposing of demurrer is error. Entering a decree pro confesso against a defendant without disposing of his demurrer to the bill is error.</p> <p>2. Same—defendant not obliged to see that court disposes of demurrer. A defendant who demurs to a bill has a right to assume that the court will not enter a default against him without disposing of the demurrer, and it is the duty of counsel for complainant to see that the demurrer is disposed of before taking a decree pro confesso.</p> <p>3. Bills op review—decree in review must not disregard the decree reviewed. A decree upon a bill to review a former decree should first grant leave to open the former decree, and then, by proper orders, indicate to what extent, if any, the rights of the parties are affected by the review, and it is error to enter a decree entirely disregarding the former one.</p> <p>4. Partition—failure to require commissioners to set off a homestead and dower is error. Failure of a partition decree to require the commissioners to set off homestead and dower to the defendant found by the decree to be entitled thereto, is error.</p> <p>5. Same—a decree cannot order sale of a homestead and dower without written consent. A partition decree requiring the premises to be sold clear of defendant’s homestead and dower, without his consent in writing having been given to such sale, is erroneous.</p> <p>6. Same—effect of former release by defendant of homestead and dower in mortgage. That the defendant has released homestead and dower in a mortgage upon the property involved in a proceeding to partition the land and review a former decree assigning the defendant homestead and dower does not justify a decree ordering sale of the property free from homestead and dower without defendant’s written consent thereto.</p> <p>*1 7. Same—when solicitor’s fees should not be apportioned. Defendant in partition should not be required to contribute to complainant’s solicitor’s fees where he urges, in good faith, a substantial defense.</p>

Charles M. Walker, Judge, presiding. This was an action of ejectment, brought in the circuit court of Cook county by John S. Coonley, appellee, against John Hutchinson and his wife, Annie Hutchinson, appellants, to recover two certain lots in the city of Chicago. Both parties claim title from Imogene L. Hanchett Cobb, formerly Imogene L. Hanchett.

<p>Appeal from the County Court of Cook county; the Hon. L. C. Ruth, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. P. A. Smith, Judge, presiding.</p>

<p>1. Negligence—contributory negligence clearly shown bars recovery. While contributory negligence is ordinarily a question of fact for the jury, yet if the undisputed evidence shows the accident occurred by reason of the negligence of the plaintiff, and hot of the defendant, there can be no recovery.</p> <p>2. Same—what does not excuse negligence of plaintiff. Notice to the conductor of a train, switching at a station, of plaintiff’s intention to repair a car, does not excuse the latter’s negligence in crawling in on top of the trucks to make the repair, without further notice, half an hour after the conversation, during which time the conductor received orders to do additional switching, which plaintifl knew might be the case, and where the conductor did not know the plaintiff intended to go under the car.</p>

<p>Appeal from the County Court of St. .Clair county; the Hon. J. B. Hay, Judge, presiding.</p>

<p>Original petition for mandamus; issues tried in the Circuit Court of Madison county; the Hon. Charles F. Moore, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook couuty; the Hon. Charles G-. Neely, Judge, presiding.</p>

Jesse Holdom, Judge, presiding. This is a bill, originally filed on March 20, 1902, and subsequently amended on October 14, 1902, in the superior court of Cook county by the appellant against the appellees, William Dohm, Augusta J. Dohm, Thekla Schwartz, William Schwertfeger, and Peter VanVlissingen to enforce the specific performance of a contract for the sale of the premises, hereinafter described as 1111 Lincoln avenue in Chicago, by William Dohm and Augusta J. Dohm, his…

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.</p>

Charles E. Fuller, Judge, presiding. This suit has been submitted to this court before for review. Its history can be obtained from an examination of 163 Ill. 511, affirming the judgment of the Appellate Court reported in 56 Ill. App. 545, and the further opinion of this court reported in 188 Ill. 234, reversing the judgment of the Appellate Court reported in 87 Ill. App. 250.

Edward P. Vail, Judge, presiding. This was a bill in chancery filed in the circuit court of Cook county by Elizabeth Keogh, against Mary A. McMullen, John H. McMullen, Agnes E. Ducey and William T. McMullen, for the partition of certain real estate located in said county.

Abner Smith, Judge, presiding. On January 20, 1902, appellee filed a bill in the circuit court of Cook county against appellant Jacob Glos to set aside a tax deed to certain lots in the city of Chicago as being a cloud upon appellee’s title to the lots, said deed having been issued by the county clerk of Cook county to Glos.

Writ op Error to the Appellate Court for the Second District;-—heard in that court on appeal from the circuit court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding.

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Bureau county; the Hon. George W. Brown, Judge, presiding.

<p>Appeal from the Circuit Court of Cook county; the Hon. R S. Tuthill, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;-—heard in that court on appeal from the Circuit Court of Marshall county; the Hon. L. D. Puterbaugh, Judge presiding.</p>

W. M. Farmer, Judge, presiding. This is an appeal by Orlando Piper, Charles Piper, Ella Bridge and Caroline Messenger from a decree of the circuit court of Christian county setting aside the probate of the last will and testament of Z. R. Piper, deceased. The testator died possessed of personal and real estate of the value of about $20,000.

<p>Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

Philip Stein, Judge, presiding. “This writ of error is sued out to reverse an order approving the final report of the receiver of certain premises in the city of Chicago, such receiver having been appointed in a foreclosure proceeding. “The premises consisted of a ninety-nine year leasehold, improved with a brick building containing twenty-nine stores and flats.

George W. Thompson, Judge, presiding. This is an appeal from a decree of the circuit court of Knox county setting aside an instrument dated September 20, 1900, and which purported to be the last will and testament of Elizabeth Housh, deceased, and which had been admitted to probate on September 23, 1901.

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

George W. Thompson, Judge, presiding. This is a bill filed in the circuit court of McDonough county by appellants, and, as amended, sets up the following facts: That the complainant Sarah Markham is the widow, and the complainants Levi M., William and Dwight Markham are the sons, of Dr. Levi Markham; that on July 1,1878, Dr. Levi Markham died testate; that prior to his death he, together with his wife, mortgaged the premises in controversy, being one hundred and sixty acres…

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. B. W. Clifford, Judge, presiding.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.</p>

<p>1. Neglígence—negligence and contributory negligence are ordinarily questions of fact. Negligence and contributory negligence, if thebe is any evidence in the record fairly tending to prove the allegations of the declaration, are questions of fact, upon which the determination of the Appellate Court is final.</p> <p>2. Instructions—when instruction on question of damages will not reverse. Giving an instruction in a personal injury case authorizing the jury, in estimating plaintiff’s damages, to consider all the facts and circumstances in evidence, is not reversible error, although the consideration should have been limited to the evidence of facts and circumstances attending the injury.</p> <p>3. Appeals and errors—exception, must be taken to improper remarks. While it is the duty of the trial court to control the argument of counsel, yet if opposite counsel desires a review of alleged improper remarks he must make objection and obtain a ruling, and if the ruling is adverse, take exception thereto.</p> <p>4. Same—right of trial or Appellate Court to require a remittitur. In an action ex delicto, the trial or the Appellate Court, if it deems the verdict excessive, may require the entry of a remittitwr to reduce the verdict to an amount deemed not excessive, and the Appellate Court’s determination in that regard is conclusive on the Supreme Court as a question of fact.</p>