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ary beneficiaries from the land to the fund which will be created by their sale. In all this the grandchildren not in esse have been fully represented, and their rights hare been fully defended and protected by those in being. The decree, therefore, must be held to be valid as a conclusive disposition of the rights of all the beneficiaries, -as well those not in esse as those who were made defendants to the bill by name.” The decree is affirmed.

Decree affirmed.

INDEX.

ABATEMENT.

PAGE.
the common law rule that the death of the parties operates

to abate the suit has been changed in Illinois by statute. 383
death of sole parties does not abate the suit if the action

is one which survives to personal representatives...... 383

ACCOUNTING.

owner of equity of redemption consenting to an exchange

of properties is not entitled to an accounting from legal
owner on basis of value of original property.....

552

ACTIONS AND DEFENSES.

right of action for personal injury is not assignable....... 100
defendant may compromise or settle with plaintiff without

regard to the latter's contract with his attorney prohib-
iting him from so doing.....

100
statement of general rule as to assignability of causes of
action arising from torts.....

100
the fact that a cause of action survives is not conclusive
that it is assignable......

100
a retail dealer in meats and provisions is liable in damages

if they prove unwholesome, when sold for domestic use,
whether he knew their condition or not......

93
no demand or refusal to perform need be shown to author-

ize mandamus to compel the performance of a public duty. 46
mandamus lies to compel compliance with the provisions of
the Civil Service act..

.130, 46
the taking of property by a sheriff from a constable, in vio-

lation of his agreement, based on sufficient consideration,
is trespass

122
condonation is a stricter bar against the husband than
against the wife....

133
a husband seeking a divorce for cruelty must make out a
clear case.

133
divorce is a remedy rovided for innocent parties only..... 133
extreme and repeated cruelty is a sufficient recriminatory
defense to a like charge....

133
where both parties are equally guilty of cruelty neither is
entitled to a divorce .

133

ACTIONS AND DEFENSES.—Continued.

PAGE.
garnishee may question jurisdiction of court to enter judg.

ment against an attachment defendant, but cannot com-

plain of irregularities affecting only the latter.......... 207
attachment suit need not be begun nor process be served

ten days before return term to entitle plaintiff to judg.

ment by default at return term.....
service by publication in attachment may be completed

after the beginning of the return term and default be
entered ten days after last notice......

207
actions for damages to real and personal property survive. 353
the common law rule that the death of the parties abates

the suit has been changed in Illinois by statute...... 383
death of sole parties does not abate the suit if the action is

one which survives to personal representatives...... 383
all parties to a trespass are principals, and are liable there-
for, jointly or severally.......

383
a landlord is liable for damages to tenant from repairing
building without the tenant's consent..

383
a tenant is not bound to object to the landlord's entry to

make repairs before he can hold him liable for damage
thereby done.....

381
ore relying on a license as a defense to an action of tres-
pass has the burden of proof...

381
a bank having sufficient funds of depositor on hand is liable

to a bona fide holder on refusing payment of check by de-
positor's direction.....

531
a private arrangement between a bank and a depositor not

to apply a new deposit to previously drawn checks does
not protect bank on refusing payment.....

.... 531
Statute of Frauds cannot be invoked to perpetrate fraud.. 536

ADVERSE POSSESSION.-See LIMITATIONS, STATUTE OF.

a permissive use cannot be made the basis of a claim of
adverse interest....

612

AGENCY.-See PRINCIPAL AND AGENT.

ALIMONY.-See DIVORCE.

AMENDMENT.

a copy of a special tax ordinance may be filed before the

hearing as an amendment to the collector's delinquent
tax report......

182
a declaration may be amended at trial by striking out one
of the grounds of damage alleged......

378
a certificate of school tax levy may be amended to show

the facts, on application for judgment of sale...

AMENDMENT.-Continued.

PAGE.
amendment of certificate of school tax levy does not vital-

ize tax, if, after amendment, it fails to show the certifi-
cate was authorized by the board...

544

APPEALS AND ERRORS.

whether agent:had authority to bind principal in particular
case is a question of fact.......

.... 40
court may refuse to set aside submission of case to court,

though further pleadings were had after trial, if the is-
sues were not changed thereby......

122
harmless modification of correct proposition of law is not
ground for reversal ......

170
one cannot complain of error in his own favor......

171
award of damages in condemnation will not be disturbed

on appeal, unless clearly against the evidence..... ... 171
when record presents no question for consideration of Su-
preme Court...

203
rule that a party obtaining decree must preserve the evi-

dence to avoid a reversal applies only when the decree
grants affirmative relief.......

205
complainant must preserve all the evidence on appealing

from decree dismissing bill for want of equity...... ... 205
a decree dismissing bill for want of equity will be sustained

where complainant preserves only part of the evidence. 205
chancellor's findings of fact on conflicting oral testimony

not disturbed unless clearly against the evidence...... 219
Supreme Court will not award new trial because judgment

of sale for taxes is informal, but will direct the entry of
a judgment in proper form.....

268
erroneous instruction is harmless if not misleading....572, 314
instruction to find for defendant must be refused if evi-
dence tends to prove plaintiff's case.

314
findings of fact in decree are conclusive, in the absence of
a certificate of evidence....

329
court's action on rebuttal evidence will not be reviewed on

appeal, in the absence of abuse of discretion....... 378
an objection to offered letter that it is “incompetent and

immaterial” does not raise the question of its genuine-
ness for review, on appeal......

378
objections which appear only by looking into the evidence

cannot be considered in absence of a bill of exceptions .. 344
a freehold is involved in an appeal from a decree holding a
devise of real estate void.......

462
trustees of an unincorporated religious society made a bene-

ficiary are proper parties to bill to construe will, and may
appeal from a decree holding devise void....

462

ܕ

PAGE.

APPEALS AND ERRORS.-Continued.

appeal from decree involving a freehold lies to Appellate

Court, where the only question raised relates to matters
of accounting..

433
allegations of an assessment petition presumed to have

been proven in the absence of a bill of exceptions....... 425
order dismissing bill as to part of defendants is not appeal-

able unless great hardship or denial of justice will result
from not allowing appeal ....

434
objections are ineffectual unless ruled upon..

439
an instruction attempting to define “material facts," with

reference to the effect of their misrepresentation by a
witness, should be refused. ...

138
a verdict by a jury as to the amount of special benefits in

a taxation case will not be disturbed on appeal, unless
clearly against the evidence.....

... 155
trial court's action in excluding evidence presumed correct,
in the absence of a bill of exceptions....

139
an instruction in a murder trial requiring the defendant to

"satisfactorily” establish matters of justification or ex-
cuse is erroneous

473
error in instruction concerning law of self-defense is not

cured by instruction requiring the People to prove ac-
cused guilty beyond a reasonable doubt......

473
not error to give instruction repeating section 149 of Crimi-

nal Code, if another instruction is given stating law of
self-defense where danger is only apparent......

473
when appeal does not involve a constitutional question.
to authorize reversal record must show prejudicial error.. 495
partition decree will not be reversed at instance of tenant,

where the record fails to show duration of his tenancy.. 495
party trying case on one theory cannot abandon it and sub-
stitute another on appeal.....

602
appeal must be dismissed if record fails to show that ap-
pellant has an appealable interest.....

... 608
administrator cannot appeal from order of court directing

him to inventory lands as part of decedent's estate...... 605
order directing administrator to inventory lands as part of

decedent's estate is not a final, appealable order........ 609

APPEARANCE.

a lot owner, by appearing and defending an application for

judgment of sale for taxes, does not subject himself to a
personal judgment...

.. 182

ARBITRATION.

award of arbitrators may be filed in any court of competent
jurisdiction for entry of judgment thereon....

410

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