Volume 100 — Illinois Appellate Court Reports

<p>Assumpsit, on a beneficiary certificate. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding.</p>

<p>Assumpsit, on a promissory note. Appeal from the City Court of Aurora; the Hon. Russell P. Goodwin, Judge, presiding.</p>

<p>1. Ordinaby Cabe—Duty of Persons Approaching Railroad Tracks. —It is the duty of a person approaching a railroad track to use ordinary care for his own safety, and whether it is negligence for him to omit to look and listen is nota question of law, under the circumstances of this case, but is a question of fact for the determination of the jury.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of McHenry County; the Hon. Charles E. Fuller, Judge, presiding.</p>

<p>1. Practice—Suits for the Use of Another—Bight of the Nominal Plaintiff to Demand Indemnity.—Where a person prosecutes a suit in the name of another, he is bound to indemnify and protect him against the payment of costs, but, in order to obtain such protection, it is the duty of such other person to make an application to the court in which the suit is pending for an order on the beneficial plaintiff to indemnify him.</p> <p>2. Same—Waiver of theBight to Demand Indemnity.—A party brought an action upon a promissory note, payable nominally to a third person, but upon a demurrer to his declaration he was permitted to amend, by making such third person the nominal plaintiff. On the trial, judgment was rendered in favor of the defendants and against the plaintiff for costs. On a proceeding to enjoin the collection from the nominal plaintiff of a fee bill for the costs of the suit, it appeared that he was notified of the amendment making him the nominal plaintiff, and at the trial sent two of his employes to attend as witnesses. It was held, that he had full knowledge of the proceedings, and had he desired to protect himself from the judgments for costs he should have taken steps to procure indemnity before the trial of the suit.</p>

<p>Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge, presiding.</p>

<p>Trial of the Right of Property.—Appeal from the Circuit Court of Winnebago County; the Hon. John C. Carver, Judge, presiding.</p>

<p>1. Affirmance—By Operation of Law.—Where one of the judges of the Appellate Court is disqualified to sit in an appealed case by reason of his having presided at the trial of the cause in the court below, and the remaining justices are divided in opinion as to whether the judgment of the trial court should be affirmed or reversed, such judgment will stand affirmed by operation of law.</p>

<p>1. Chanceen Pleading—Exhibits, When to Be Considered as a Part of the Bill.—When a document is referred to in a bill as an exhibit, and attached thereto, and the whole bill shows that the complainant treats it as a part thereof, it should also be treated by the court as a part of the bill.</p> <p>3. Life Insurance—Acceptance of Policies with Conditions Relating to Suicide.—Where an assured pays the first premium and receives his policy, in the absence of fraud or mistake it must be considered that the provision in reference to suicide was knowingly accepted by him.</p> <p>3. Same—Reasonable Provisions Relating to Suicide.—A provision in a policy of life insurance that “ self-destruction, sane or insane, within one year from the issuance of the policy is a risk not assumed by the society in this policy ” is a reasonable provision and will constitute a defense in such cases.</p>

<p>Bill for Relief.—Error to the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding.</p>

<p>1. Replevin—Requisites of the Plaintiff’s Case.— In order to sustain his suit the party bringing an action of replevin must either be the owner, or the person entitled to the possession of the property sought to be replevied.</p>

<p>Debt, on a replevin bond. Appeal from the Circuit Court of Will County; the Hon. John Small, Judge, presiding.</p>

<p>Action of Debt.—Appeal from the Circuit Court of ICnox County; the Hon. George W. Thompson, Judge, presiding.</p>

<p>1. Attorney and Client—Confidential Communications Inadmissible.—Where the relation of attorney and client exists between parties, communications between them relating to matters in litigation and connected with it are inadmissible and incompetent.</p> <p>3. Admissions—Of an Assignor, When Competent.—Declarations of an assignor against his interest in support of his assignment are competent evidence against those claiming under him; but declarations by him tending to overthrow the assignment or to give it a different meaning from that which appears on its face are not competent as against the assignee.</p> <p>3. Chancery Practice—Po'esumptions in Favor of a Decree. —When the question arises as to whether the competent evidence in the record is sufficient to sustain the decree, it will be presumed that the chancellor considered only such evidence as was proper under the issues.</p> <p>4. Evidence—To Overcome a Conveyance Must Be Convincing.— Where a conveyance is absolute on its face the proof to overcome it must be clear and convincing. Loose, indefinite and unsatisfactory evidence is not sufficient.</p>

<p>1. Malicious Prosecution—Requisites of the Plaintiff's Case.— In order to maintain an action for malicious prosecution, it is incumbent upon the plaintiff to show (1) want of probable cause on the part of the defendant in commencing the prosecution; (2) malice on his part and (3) termination of the prosecution in the plaintiff’s favor.</p> <p>2. Same—Where Malice May he Infei'red.—The criminal code can not be resorted to for the purpose of collecting debts, where there is no probable cause for supposing that an offense against the law has been committed, and in the absence of such probable cause malice may be inferred.</p> <p>3. Same—Advice of Counsel as a Defense.—Before a party can shield himself by the fact that he took advice of counsel before instituting the prosecution, it must appear that he made, in good faith, a full, fair and honest statement of all the material circumstances bearing upon the supposed guilt of the party charged, which were within his knowledge or which he could by the exercise of ordinary care have obtained.</p>

<p>1. Presumptions—Ms to the Regularity of the Passage of Ordinances.—When neither statute nor ordinance requires that the journal of the proceedings of a city council show affirmatively that an ordinance was read at the time of its presentation for passage, when it appears regular in other respects it will be presumed that it was read when presented.</p> <p>2. Ordinances—When Considered as Licenses and Binding Contracts.—An ordinance granting to an incorporated company the right to construct and operate a telephone system in the city, is a license, and becomes a binding contract between the city and such company when it accepts the privilege conferred by the ordinance and enters upon the use of the streets for the purposes specified in such ordinance.</p> <p>3. Same—Granting Franchises, When Not Void.—An ordinance granting the right to construct and operate a system of telephones in the city is not void for the reason that at the time the ordinance granting such privilege was presented for passage only the application for the company’s incorporation had been filed with the secretary of state but the certificate of its complete organization had been issued and filed with the recorder, before the ordinance was passed and its terms accepted by the company.</p> <p>4. Same—Requiring Permits from Certain Committees—Who May Object.—When an ordinance granting the right to construct a system of telephones in the streets of a city requires the company to obtain a permit in writing from the committee on streets and alleys before proceeding to construct its system, the fact that such company omits to obtain such permit is a matter which concerns only the city, and it alone can take advantage of its failure.</p> <p>5. Franchises—Grants of, by Ordinances, Not to be Exclusive.— A city has no power to grant the exclusive use of the streets to persons or corporations for private purposes but must hold and control possession of the same exclusively for the public use.</p> <p>6. Municipal Corporations—Wo Right to Grant the Exclusive Right to Use the Streets to Corporations.—Municipalities have no power to grant to one company or person the exclusive right to erect and maintain a system of telephones in the public streets, but such a grant must be subject to such limitations as will enable other companies or persons to obtain and enjoy like franchises so that there is no unreasonable or unnecessary invasion of the rights of a former occupant.</p>

<p>1. Administration of Estates—Power of the Court to Reclassify Claims.—The fact that claims against an estate have been allowed and classified without objection by the executor, does not prevent the court from re-examining and reclassifying such claims upon a petition for that purpose, filed at a subsequent term of the court, and within the time allowed for the final settlement of the estate.</p> <p>2. Same—Power of the Court over the Reports of Administrators.— Upon the presentation of the final report of an administrator, the court may hear testimony for the purpose of correcting any errors or discrepancies in former reports and may make such corrections as the testimony justifies.</p> <p>3. Same—Reclassifying Claims Within the Time Allowed for Settling the Estate.—When a claim against an estate has been allowed and classified as of a certain class without objection by the executor, upon petition filed and brought to the notice of the executor, within the two years allowed for the filing of claims and before an order for the final distribution of the estate could be legally made, the former classification will not prevent the court, in case of fraud or mistake, from re-examining the claims and placing them in their proper class.</p> <p>4. Same—Claims for Moneys Held in Trust—Construction of the Statute.—The expression “in trust for any purpose” as used in section 70 of the administration act (Hurd’s R. S. 1899, p. 116) was not intended to embrace all kinds of trusts in the broadest meaning of the term as including factors, agents, etc., but the term is used in the more restricted sense as referring to special or technical trusts and not to those which the law implies from contracts.</p>

<p>Claim in Prohate.—Appeal from the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Trespass, to real estate. Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>1. Practice—What Papers May be Taken by the Jury.—Papers read in evidence, other than depositions, may be carried from the bar by the jury when they retire to consider of their verdict.</p> <p>2. ' Evidence—Books Read in Evidence and Attached to Depositions. —Books containing memoranda, attached to the deposition of a witness, are competent and independent evidence and may be taken from the bar by the jury, when they are detached from the deposition before being so taken.</p> <p>3. Instructions—When a Party is Estopped to Object.—A party litigant is not in a position to object to an instruction given on behalf of his adversary when the same instruction is fully covered by other instructions given in the case for him.</p> <p>4. Same—Not Error to Refuse an Instruction Containing Only an Abstract Proposition of Law.—It is not error to refuse an instruction containing only an abstract proposition of law.</p>

<p>Intervening Petition, for a mechanic’s lien. Appeal from the Circuit Court of Woodford County; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Instructions—Abstract Principles of Law Not Warranted by the Facts.—An instruction containing an abstract principle of law not warranted by the facts in the case and calculated to mislead the jury, is erroneous.</p> <p>2. Same—Assuming Questions of Fact.—An instruction which tells the jury, if they believe from the evidence that the defendant received full information from an employe of his acts in the premises, on or before January 1st, and remained silent and inactive until some time in March, it was not a reasonable time in which to dissent from the acts of such employe, is erroneous, as the question whether the delay for the length of time mentioned was reasonable under all the circumstances of the case was a question of fact for the jury and not a question of law.</p>

<p>Information, in the nature of a quo warranto. Appeal from the Circuit Court of Grundy County; the Hon. Charles Blanchard, Judge presiding.</p>

<p>1. Ordinary Care—Persons in Imminent Peril.—Persons in imminent peril are not required by law to exercise all the presence of mind and care which a prudent and careful man would exercise under ordinary circumstances.</p> <p>2. Damages—Where $10,000 Is Not Excessive.—Where a young man of nineteen years of age, in good health and of excellent physique, who by way of obtaining an education had passed through two years of a high school course—of some ability, as he had advanced in the line of his employment and become a foreman for his employer—was injured in-the line of his employment, suffered extreme pain and lost one of his legs, the court can not say that a verdict for $10,000 was the result of passion and prejudice on the part of the jury, and consequently will not disturb it.</p>

<p>Assumpsit, on a promissory note. Error to the Circuit Court of Warren County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Chancery Practice—When a Cross-Bill is Unnecessary—Deficiency Decrees.—When a junior incumbrancer is made a party to a foreclosure proceeding, a cross-bill is unnecessary to entitle him to a participation in the surplus.</p> <p>2. Same—When a Party is Entitled to Affirmative Relief.—The general rule is that a party can not have affirmative relief without pleadings asking for it; and a junior incumbrancer, when made a party to a foreclosure proceeding, can not have affirmative relief, beyond a participation in the distribution of the proceeds of the mortgaged property, without a cross-bill asking for such relief.</p>

<p>1. Appeals—Can Be Prosecuted Only When the Statute Has Conferred the Right.—An appeal can be taken only where the statute has conferred the right.</p> <p>2. Same—From Interlocutory Orders Granting Injunctions.—The only statute authorizing an appeal from an interlocutory order granting an injunction is the act of June 14, 1887. (Laws of 1887, 250.) And such appeal can be taken only while the order granting it remains in force.</p> <p>8. Same—From Orders of a Circuit Judge in Vacation.—The statute does not authorize an appeal from the order of a circuit judge in vacation.</p> <p>4. Chancery Practice—A Demurrer Admits the Truth of the Bill and Dispenses with a Verification.—A demurrer admits the allegations of the bill and while it is pending it is immaterial whether or not the verification of the bill is sufficient.</p>

<p>1. Promissory Notes—Defenses, When Assigned After Maturity.— A promissory note indorsed after its maturity is subject to all the defenses in the hands of the indorsee which the maker could have made to it in the hands of the payee.</p>

<p>Action to Enforce Mechanic’s Lien.—Appeal from the Circuit Court of Henry County; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>1. Names—As Indicating Sex—The name “ Joseph ” imports aperson of the male sex.</p> <p>3. Intoxicating Liquors—Permits for the Sale of, to Minors.—A. permit from a mother for the sale of intoxicating liquors to her minor son for her use does not authorize a subsequent sale to him for his own use to be drank by him on the premises of the seller.</p> <p>3. Same—Construction of the Statute Prohibiting the Sale to Minors Without Permits.—The evident intent of the statute prohibiting the sale of intoxicating liquors to minors was to place the child’s need for such liquors upon parental discretion as to time and quantity, and such discretion is not to be delegated to the minor. The principle at the foundation of the law is that the minor’s discretion is not to be trusted, and so a permit in writing is required.</p>

<p>1. Appellate Court Practice—Bills of Exception Necessary— Striking Pleas from the Files.—In order to assign error on the ruling of the trial court in striking pleas from the files an exception should be taken to such action and preserved in a bill of exceptions.</p> <p>3. Practice—Form of Judgments in Actions of Debt on Appeal Bonds.—In an action of debt upon an appeal bond, the judgment should be in debt for the penalty of the bond, to be discharged upon payment of the damages occasioned by the breach.</p>

<p>1. Instructions—As to the Reasonable Doubt.—It is not error to 'refuse an instruction as to a reasonable doubt, invoking its application with respect to particular facts in a case, instead of to the question of /guilt upon the whole case, or some entire matter of defense or element pf the crime.</p> <p>3. Criminal Law —Application of the Reasonable Doubt.— In a criminal prosecution, the reasonable doubt the jury is permitted to entertain, must be as to the guilt of the accused upon the whole of the evidence.</p>

<p>Forcible Entry and Detainer.—Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Suit for Wages.—Error to the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding.</p>

<p>1. Courts of Chancery—Jurisdiction to Restrain the Enforcement of a Judgment.—When a judgment has been obtained by fraud, accident or mistake, courts of equity have jurisdiction to grant a new trial at law, or otherwise relieve the defendant from it, unless he has been guilty of negligence himself.</p> <p>2. Same—Limitation of the Power.—The ground upon which such relief is granted is limited to cases in which the judgment has been obtained through fraud, accident or mistake.</p> <p>3. Chancery Practice—Effect of an Unverified Answer.—The only-effect of an unverified, answer is to reach an issue, like any other pleading, whether it is verified or not.</p> <p>4. Negligence—Of an Attorney to he Imputed to His Client.—The negligence of an attorney in failing to attend the call of the docket, and avoid a dismissal of his client’s suit, is to be imputed to such client as his own negligence.</p>

<p>Trespass on the Case, for personal injuries. Error in the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Insolvent Building and Loan Associations—Status of Stockholders and Creditors.—When a holder of matured shares of stock in a building and loan association surrenders his stock, procures the cancellation of his certificate, and allows the amount due him upon his shares to remain with the association, taking therefor an acknowledgment of the indebtedness, he becomes a creditor of the association upon the same basis as outside persons, and is entitled to be preferred as to such claim above stockholders whose stock had not matured at the time the association was declared insolvent.</p>

<p>1. Cities and Villages— Sufficiency of an Appropriation at the Time of Contracting.—Where, at the time of ordering certain photographs for the city attorney’s office for the use of the law department of the city of Chicago, there was more than enough of the proper appropriation unexpended to pay for them, the city will be liable, notwithstanding such appropriation is subsequently exhausted.</p> <p>2. Same—Transferring Money from One Fund, to Another, Not an Appropriation.—The legal transfer of money from one fund to another by the authorities of a municipal corporation is not an appropriation.</p> <p>3. Corporation Counsel—His Office and Dufies.—The corporation counsel is a member of the legal department of the city of Chicago.' It devolves upon him to prepare defences to actions against the city for damages growing out of the elevation of railroad tracks, and by virtue of his office, in the performance of his duties in preparing defenses, he has ample power to order photographs, which, in the exercise of reasonable discretion and judgment, he may deem necessary or useful in the defense of the city against such actions.</p>

<p>1. Criminal Procedure—Sufficiency of Averments in an ment for Selling Mortgaged Property.—In an indictment for selling mortgaged property, to aver that the mortgage was valid is to aver legal conclusion. An averment that the seller well knew that the property in question was not then and there free and clear from all liens and incumbrances, but that a certain corporation, naming it, organized and existing under and by virtue of the laws of the State of Illinois, then and there held a certain chattel mortgage on said property to secure the sum of two hundred dollars in money, is an averment, sufficient as a basis for proof of a valid chattel mortgage held by such corporation.</p> <p>3. Criminal Law—Care and Caution—False Pretenses.—Whether a person who purchases personal property, relying upon false pretenses of the vendor, exercised reasonable caution, is a question of fact for the jury to decide.</p>

<p>Bill to Foreclose a Mortgage.—Error to the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County: the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>Trespass on the Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p>

<p>1. Injunctions—May be Issued Without Bond— Injunctions other than those to restrain the collection, of a judgment may, where sufficient cause is shown, be issued without requiring the applicant to give a bond.</p> <p>2. Equity Pleading—Requisites of a Bill for an Injunction.—As a general rule, an allegation of facts upon which an injunction may he ordered, must be stated positively, although where the facts essential to the rights of the complainant are charged to rest in the knowledge of the defendant, or must of necessity be within his knowledge and not within the knowledge of the complainant, they may be alleged upon information and belief, followed by the statement that the complainant charges such facts to be true.</p> <p>8. Equity—Has No Jurisdiction Where the Complainant Has an Adequate Remedy at Law.—A court of equity will not assume jurisdiction in a case where the complainant has an ample and adequate remedy at law.</p>

<p>Assumpsit, on a policy of life insurance. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanaqh, Judge, presiding.</p>

<p>Bill to Enforce a Vendor’s Lien.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>1. Mortgages—Not Negotiable Instruments.—A mortgage is not a negotiable instrument, and an assignee takes it subject to whatever defenses the mortgagor may have to it.</p>

Assumpsit, for goods, wares and merchandise sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.

<p>Assumpsit, on a city voucher. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Recoveries—For Injuries Received While Disobeying Orders.— The representatives of an employe, who, contrary to the orders of his employer, attempted to fix an electric lamp, and in consequence was killed, are not entitled to recover damages under the statute.</p>

<p>Trespass on the Case.—Death from alleged negligence. Appeal from the Circuit Court of Cook County; the Hon. Elbridqe Haneoy, Judge, presiding.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>1. Pledges—When Stock Pledged as Collateral Ceases to be Available.—Where shares in an incorporated company are pledged as collateral security, and are subsequently canceled by agreement, such stock ceases afterward to be available as. such collateral.</p>

<p>Bill to Foreclose a Trust Deed.—Appeal from the Superior Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Fraud—General Maxim in Equity, Where One of Two Innocent Parties Must Suffer.—Where one of two innocent persons must suffer a loss by the fraud of a third person, the loss must fall upon him who, by his conduct, has put it in the power of such third person to cause it.</p>

<p>Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>Foreclosure.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Bill of Foreclosure. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Ohetlain, Judge, presiding.</p>

<p>Contempt of Court.—Appeal from the Superior Court of Cook County; the Hon. Author H. Chetlain, Judge, presiding.</p>

<p>Trespass oil the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding.</p>

<p>1. Malice—When the Gist of the Action.—In an action against a banker to recover the value of certain checks deposited with him, a special finding of the jury that he had a fraudulent intent to receive such checks and convert them to his own use, applies to a count charging that he accepted them for deposit, maliciously intending to cheat and defraud the plaintiff, and is sufficient upon which to enable the court to find that malice was the gist of the action.</p> <p>3. Banks and Banking—What is a Prima Facie Case of Fraud.— Proof in a civil case of the reception of deposits by a banker when insolvent, and one day before suspension, makes a prima facie case of fraud.</p>

<p>1. Employer and Employe—Liability of the Employer for Illegal Arrests by His Employes.—The fact that the employes of a mercantile esoablishment acting in behalf of their employer, and in the line of their employment, arrest a party in front of the establishment, charge her with theft and take her inside, where a search is directed and carried on by persons employed therein, makes a prima facie case of false imprisonment against the proprietor, sufficient to be submitted to a jury.</p> <p>2. Agency—Scope of an Agent's Authority May be Shown by Circumstances.—The scope of an agent’s authority may be shown by circumstances as well as by express proof. Whatever is fairly implied from such circumstances is within its scope.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Rill for an Injunction.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County, the Hon. Edward P. Vail, Judge, presiding.</p>

<p>Bill to Cancel a Policy of Life Insurance.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Interlocutory Order Appointing a Receiver.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Appeals—Interlocutory and Final Orders.— Except for the statute and in accordance therewith, no appeal lies from interlocutory orders. They lie only from final judgments, orders and decrees.</p> <p>2. Interlocutory Orders—Subject to Change before the Final Disposition of the Case.—An order appointing a receiver is not final, but only interlocutory, which the court may vacáte or change before the disposition of the case.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding,</p>

<p>Foreclosure.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Ordinary Care—Want of the Exercise of, Precludes a Recovery. —Where a lady is walking upon a plank sidewalk with her arms full of goods, and with knowledge of a defect in the walk, and, while not in the exercise of ordinary care for her personal safety, is injured in consequence of such defect, she can not recover.</p> <p>2. Instructions—If the Evidence is Equally Balanced.—It is not error to instruct the jury that if the evidence is equally balanced they must find for the defendant.</p>

<p>Foreclosure.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Customs—Requisites—Admissibility in Evidence.—A custom, to be admissible in evidence as such, must be shown to be certain, uniform, reasonable, and not contrary to law.</p>

<p>Action on the Case.—Private property damaged for public use. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Partners—Members of Communistic Societies—Promissory Notes. —A party who withdraws from a communistic society and takes the note of such society for the amount agreed upon as due her, and has no claim upon the society except under the note, is entitled to bring an action against the society upon the note, treating its members as copartners.</p>

<p>1. Limited Partnerships—Statute Authorizing Must Be Complied With.—The provisions authorizing limited partnerships must be substantially complied with, or those who are associated under it will be liable as general partners.</p> <p>2. Same— Construction of the Statute,—Such portions of the statute authorizing limited partnerships as appertain to the protection of persons dealing with them, are to be liberally construed and must be strictly observed by the members of the firm.</p> <p>3. Same—Portions of the Istatute to be Strictly Construed.—Those portions of the statute authorizing the formation of limited partnerships, viz., the statements of capital contributed by the special partners, the duration of the partnership, the names of the parties and their assent thereto, are designed for the protection of persons dealing with such partnership, and are to be strictly construed as against the members of the firm.</p> <p>4. Same—Requirements of the Act.—Persons desirous of forming a limited partnership must severally make and sign a certificate to that effect to be acknowledged by the several persons signing the same.</p> <p>5. Same—Acknowledgments by Attorneys in Fact.—If it be permissible for a person desirous of forming a limited partnership to sign and acknowledge the necessary certificate by an attorney in fact, such acknowledgment must be accompanied by evidence showing the authority of the attorney to act.</p>

<p>1. Railroads—Failure to Lower Oates at Street Crossings.—A traveler on the highway who sees a train about to pass in front of him, has all the warning which the gates at the crossing could give if properly closed.</p>

<p>1. Sidewalks—Pedestrians May Presume Them to Be in ¡Safe Condition.—Where a pedestrian has no knowledge of a defect in a sidewalk, he has a right to presume that it is in reasonably good repair and safe condition, and to act upon such presumption.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>1. Appellate Court Practice—Matters to Which Counsel Desire to Call Attention, Must be Abstracted.—The Appellate Court will not, in the first instance, look through the record to ascertain whether the errors assigned are well taken. The rules of this court require that matters to which counsel desire to call attention, must be abstracted.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John C. Garver, Judge, presiding.</p>

<p>Assumpsit, on a contract of guaranty. Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>1. Malicious Prosecution— When an Arrest is Justifiable.—P. let T. have a horse, buggy and harness to apply upon an indebtedness; T. took them and placed them in his own barn. P. subsequently borrowed them several times to take his family out riding, and afterward broke open the barn and surreptitiously took them away in the night time. It was held that his arrest for larceny upon the complaint of T. was justifiable.</p> <p>2. Liens—Of Stable Keepers—Larceny.—The keeper of a stable has a lien upon horses, carriages and harness for keeping, and if the owner breaks open the stable and surreptitiously takes away such horse, buggy and harness, the keeper will be justified in prosecuting him for larceny.</p> <p>3. End of the Prosecution—How to be Shown—Admissibility of the Record.—A discontinuance of the prosecution is to be shown by the record, but such record is admissible only for the purpose of showing that the prosecution complained of has come to an end, and nothing else.</p> <p>4. Practice—Excluding Evidence Improperly Admitted.—When improper evidence has been admitted over the objection of the opposing party, the mischief caused by its admission is not cured by subsequently excluding it. In actions for malicious prosecution, the rules as to the admission of evidence should be fully observed.</p> <p>5. Burden of Proof—In Actions for Malicious Prosecution.—In an action for malicious prosecution the burden is upon the plaintiff to show by a preponderance of the evidence, not only that the defendant was actuated by malice in causing his arrest, but that he did not have probable cause for doing so.</p> <p>6. Malice—Not to be Necessarily Inferred from a Want of Probable Cause.—The existence of malice does not raise a presumption of want of probable cause, while from proof of want of probable cause, malice ma3r, but is not necessarily to be inferred.</p> <p>7. Probable Cause—In Actions for Malicious Prosecution. —If there is probable cause for a prosecution, it is immaterial that such prosecution was actuated by malice and also immaterial that the accused was not only found not guilty, but was actually innocent.-</p> <p>8. Same—What is Sufficient as Probable Cause.—Where the circumstances presented to a prosecutor are such as would induce in the mind of a cautious man a belief of the guilt of the party accused, no recovery can be had in an action for malicious prosecution, brought by the accused against the prosecutor.</p>

<p>Foreclosure of a Trust Deed.—Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>Mechanic’s Lien.—Error to the Superior Court of Cook County; the Hon. Arthub H. Chetlain, Judge, presiding.</p>

<p>Trespass on tlie Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Practice—When a Demurrer is to be Considered as Not Pending, —Where a party litigant moves .and is granted leave to withdraw his demurrer and file an answer, he waives such demurrer and thereafter ic is not to be considered as pending,</p> <p>3. Chancery Practice—Dismissing a Bill for Want of Equity.—A bill in chancery may be dismissed for want of equity appearing on the face of the bill at the hearing.</p>

<p>Action on the Case, for deceit. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Assumpsit.—Common counts. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>1. Writ of Error—Will Not Lie to Reverse a Decree Unless Final.— Under section 68 of the practice act, an appeal can not be taken from a judgment or decree, nor will a writ of error lie to reverse a judgment or decree, unless the same is final.</p> <p>2. Decrees— When Interlocutory.—A decree giving a party possession of certain property, requiring him to give bond and security, is held, under the facts and circumstances of this case, to be interlocutory.</p> <p>8. Same—When Final.—A judgment or decree is said to be final when it terminates the litigation between the parties on the merits of the case, so that, when affirmed by the reviewing court, the court below has nothing to do but to execute the judgment or decree it has already entered,</p>

<p>Assumpsit.—Common counts. Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>1. Instructions—Duty of the Court in Considering the Propriety of an Instruction to Find for the Defendant,—A motion to instruct the jury to find the defendant not guilty, is in the nature.of a demurrer to the evidence, and the court, in passing on that motion, is limited to determining whether there was or not evidence, which, if true, reasonably tended to support the plaintiff’s case. It is not within the province of the trial court, nor of the Appellate Court on appeal, to weigh the evidence or pass on the credibility of the witnesses.</p>

<p>Assumpsit, on a contract of guaranty. Appeal from the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Bill for a Mechanic’s Lien.—Appeal from the Circuit Court of Cook County; the Hon. Edwabd P. Vail, Judge, presiding.</p>

<p>1. Chancery Practice—When Master's Fin&ingsjxre Conclusive.— The findings of the master, as approved by the court, will be sustained, unless manifestly against the weight of the evidence.</p> <p>2. Settlements—A Party Accepting Benefits óf a Settlement Can Not Open it after a Lapse of Time.—Where parties have received from a settlement, and retained, all the benefits they contracted for, and acted on the settlement, it should not be opened, after a lapse of three years’ time, for fraud.</p>

<p>Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Arra N. Waterman, Judge, presiding.</p>

<p>1. Insurance—Loss, if Any, Payable to Mortgagees as Their Interest May Appear.—A policy of fire insurance containing a clause that the loss, if any, shall be payable to J. H. and A. C. as their interest may appear, is in effect an independent agreement with the mortgagees which may be enforced in their own names.</p> <p>2. Same—Insurable Interest of Stockholders—Corporations.—A stockholder in a. corporation who owns shares of stock worth more than $20,000, has an insurable interest in the corporate property.</p> <p>3. Same—What Does Not Amount to Cancellation of Policy by Mortgagee.—Where H., a mortgagee, has canceled an insurance policy as to his interest and attempted to cancel it as to the interest of C., another mortgagee, the acceptance by O. of unearned premiums on the policy, the property having been already destroyed by fire, is no waiver of his claims for a loss against the insurance company, nor is it a ratification of the cancellation of the policy.</p>

<p>1. Corporations—Right of Stockholders to Intervene in Suits Against the Corporation.—Where stockholders have a right upon a well defined ground to defend their own interests in a suit against the corporation, they may, as stockholders, be permitted, in the discretion of the trial court, to intervene; but upon the mere ground that they are stockholders, and therefore per se necessary parties, no right to intervene exists.</p> <p>2. Same—Right to Intervene When Directors Fraudulently Refuse to Protect Interests of Corporation.—While it is true that the corporation is supposed to represent the shareholders in all litigation to which the corporation is a party and the shareholders are not necessary parties, it is also true that in cases where directors have fraudulently refused to protect the interests of the corporation and hence the interests of the shareholders in litigation, the shareholders may be allowed, in the discretion of the trial court, to appear and act in such litigation for their own protection.</p> <p>3. Same—Fraud in the Incorporation of, Not a Valid Defense Against Foreclosure Proceedings.— Facts which would establish that the capital stock of a corporation was not in good faith fully subscribed for when the report of the commissioner was made, upon which the charter of the corporation was issued, does not afford any valid defense against the right of bondholders to foreclose a trust deed upon the corporate property.</p> <p>4. Laches—Rule Where Defense is Want of Knowledge on the Part of One Charged with Laches.—The tendency of the courts, where the defense is want of knowledge on the part of one charged with laches, is to hold the party to a rigid compliance with the law which demands not only that he should have been ignorant of the fraud, but that ho should have used reasonable diligence to have informed himself of all the facts. If a person be ignorant of his interests in a certain transaction, no negligence is imputable to him for failing to inform himself of his rights, but if he is aware of his interest, and knows that proceedings are pending, the result of which may be prejudicial to such interests, he is bound to look into such proceedings so far as to see that no action is taken to his detriment.</p> <p>5. Foreclosure—Luches May be Considered by the Court Without Being Raised by the Pleading.—In a petition to intervene in a suit to foreclose a mortgage the court may give laches consideration as a ground for refusing leave to intervene without waiting for it to be raised as an objection by the pleadings.</p> <p>6. Appellate Court Practice—In Granting Leave to File Petition to Intervene.—Granting an application for leave to file an intervening petition after a cause has proceeded for a long period of time is a matter resting in the sound discretion of the chancellor of the trial court and his decision will not be reviewed by this court unless there has been an abuse of that discretion.</p>

<p>Bill for an Injunction.—Error to the Circuit Court of Cook County; the Hon. Ohas. G. Neely, Judge, presiding.</p>

<p>Action oil the Case.—Death from negligent act. Appeal from the Circuit Court of Perry County; the Hon. Silas Cook, Judge, presiding.</p>

<p>1. Criminal Law—Necessity for an Arraignment.—It is familiar law that a person indicted for a criminal offense can not be put on trial without a plea of not guilty, for without such a plea there is nothing to try.</p> <p>2. Same—Necessity for Entering Plea of Not Guilty Where Prisoner Refuses to Plead.—The provisions of section 425 of the Criminal Code, providing for entering a plea of “not guilty,” where the prisoner stands mute or refuses to plead, should be pursued to protect the rights of the accused, where he is often too ignorant to know and fully comprehend what his rights are under the circumstances which surround him.</p>

<p>1. Raileoads— Duty to Licensees Traveling Alongside of Track.— Toward the public, traveling on a roadway alongside of their tracks as licensees, rather than by virtue of any legal right, the railroad company is not required to exercise any greater care than toward those traveling on a public highway parallel to its tracks.</p> <p>2. Same—Statute Requiring Bells to Be Rung and Whistles Sounded. —The statute requiring bells to be rung or whistles sounded applies only to trains approaching crossings.</p> <p>3. Same—Recovery for Injury, When Violation of Statutory Requirement is Cause.—It is only when the violation of statutory requirements is the cause of the injury that damages can be recovered on that account.</p> <p>4. Master and Servant—Not Responsible for Act of Servant Done Through Mistake in Judgment.—An act done through a mistake in judgment is not a negligent act, and for an act so done by the servant, the master is not responsible unless he has failed to exercise reasonable care in selecting the servant.</p>

<p>1. Negligence—Failure of Railroad Company to Obey Statide, When to Be Shown to Authorize a Recovery.—A railroad company’s failure to obey a statute or ordinance relating to the management of a train must be shown to have been the proximate cause of the injury before there can be a recovery.</p> <p>2. Same—No Defense that Party Injured Violated a Law, Unless the Proximate Cause of the Injury.—It is no defense for an action for negligence that the plaintiff was engaged in the violation of the law in a given particular at the time of the happening of the accident, unless the violation of the law was the proximate and efficient cause of the injury.</p> <p>3. New Trial—Affidavits as to Newly-Discovered Evidence.—It is not error to refuse a motion for a new trial, where the affidavit as to newly-discovered evidence fails to show any diligence to get the testimony claimed to have a controlling influence on the issues.</p>

<p>L Negligence—What is Not, in a Servant Ordered to Remove “Quick” a Dangerous Obstruction.—It is not negligence in a servant obeying a peremptory order to remove “quick” a dangerous obstruction from in front of a rapidly moving train, to attempt to cross the track on a dark foggy morning, to obey such order. Where there is but a fraction of a minute in which to resolve and act, or action will come too late, it would be unreasonable to require a deliberate judgment from one in a position to afford relief.</p>

<p>Action on the Case.—Personal injury. Appeal from the Circuit Court of Saline County; the Hon. Joseph P. Robarts, Judge, presiding.</p>

<p>Assumpsit.—Common counts. Appeal from the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding.</p>

<p>Trespass on the Case.—Damage by fire. Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>1. Jurisdiction—Conferred on Equity Where an Injury is Irreparabie.—Where a threatened injury to a party is very great, in its nature irreparable, and the one who threatens the injury is wholly insolvent, there can be no adequate remedy at law, and the facts are sufficient to confer jurisdiction upon a court of equity.</p> <p>2. Chancery Practice—Bill Taken for Confessed, Introduction of Evidence in the Discretion of the Court.—Where a bill has been taken for confessed, the introduction of evidence is wholly within the diseretion of the court and the court is not bound to require the production of any evidence. It is sufficient if the facts alleged in the bill and confessed by the default are sufficient to support a decree.'</p>

<p>Contempt.—Violation of an injunction. Appeal from the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge, presiding.</p>

<p>Trover.—Appeal from the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge, presiding.</p>

<p>1. Mines and Mining—Contributory Negligence Not a Defense for Willful Failure to Comply with Law.—Contributory negligence is not a defense to an injury caused by willful failure to comply with the mining law relative to furnishing props.</p>

<p>Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding.</p>

<p>1. Change of Venue—Reasonable Notice Required in Application for.—Under the provisions of Sec. 5, Chap. 126, Starr & C., reasonable notice to the adverse party or his attorney is a condition precedent to a legal right to a change of venue, and an application for a change must be tested by its terms.</p> <p>2. Same—When Not Error to Refuse Application for.—An application for a change of venue is properly refused where the notice as to the time when.it was served on the plaintiff's attorney is indefinite, and does not show that it could not have been served at an earlier time, and is not signed by a party to the record.</p> <p>3. Notices—Must be in Writing Unless Otherwise Provided.—The weight of authority seems to be that all notices required by statute, unless otherwise provided, must be in writing.</p> <p>4. Insurance—Construction of Clause in a Policy Requiring Insured to Keep a Fire-proof Safe.—Insured has complied with the condition in his policy which requires him to keep a fire-proof safe, where he in good faith buys a safe represented and sold on the market as a fire-proof safe, believing it to be such. To hold otherwise would be to hold that every one insured under such a condition becomes on his part an insurer and guarantor of the quality of his safe as to it being fire-proof.</p> <p>5. SAME'—Policies to be Most Favorably Construed to the Insured.— A condition that would defeat an insurance policy must be expressed, or so clearly implied that it can not be misconstrued. Insurance companies write and sign their policies, and where there are doubtful constructions they will be held against the insurer. Policies must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim for indemnity.</p>

<p>1. Leases—Covenant to Pay Rent in Lease Under Seal.—A covenant to pay rent in a lease under seal, when there are no covenants to repair, can not be defeated by reason of the building becoming out of repair.</p> <p>2. Landlord and Tenant—Lessee Has No Relief Against Covenant Unless by Stipulation.—It is a general rule of law that a lessee has no relief against an express covenant to pay rent unless he has protected himself by a stipulation in the lease.</p> <p>3. Same—A7o Implied Contract by Landlord that the Premises Are Tenantdble.—There is no implied contract on the part of the landlord that the premises are tenantable, or that they will continue so during the term, nor is he bound to repair unless he has expressly agreed so to do in the lease or contract of hiring, and a promise to repair, made after the lease is entered into, is a mere nudum pactum, and no liability exists on his part to make such repairs.</p> <p>4. Same—Defects in Premises.—The landlord is not liable for defects existing in the premises when the lease was made, unless they were latent, and the landlord has been guilty of fraud or actual deceit in the letting.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Saline County; the Hon. Joseph P. Robarts, Judge, presiding.</p>

<p>1. Negligence—Must Be Proven Substantially as Charged in the Declaration.—While it is ordinarily true that actions against joint tortfeasors may be either joint or several, that a suit may be maintained against one, any or all, and that there may be a recovery against one or more defendants and a failure to recover as to others in the same suit, still this does not relieve a plaintiff from the burden of proving the negligence set up in his declaration substantially as .charged, as to all against whom he asks judgment.</p> <p>2. Same—Concurrent Negligence, Both Defendants Must be Found Guilty.—Where a declaration charges that an injury is the result of the concurrent negligence of two defendants it must be proven as charged, and there can be no recovery unless the jury finds both of the defendants guilty.</p> <p>3. Instruction—Where it is for the Jury to Determine What Constitutes Want of Ordinary Care.—Where it is for the jury to determine what acts and conduct constitute want of ordinary care, an instruction is erroneous which is susceptible of meaning that acts and conduct recited in the instruction can not be held by them to constitute want of ordinary care.</p>

<p>1. Statutes—Construction of Words Having More Than One Meaning.—Where .words having more than one meaning are used in a statute, they should be given that meaning which will best serve the purpose of the statute, if the same can be done without repugnance to the context.</p> <p>2. Same—See. 33, Chap. 24, and 125, Chap. 46, JR. S., Construed.—The language of Sec. 33, Chap. 24, providing that an alderman shall reside in the ward from which he is elected, and Sec. 125, Chap. 46, providing that the office shall be vacant on the incumbent ceasing to be an inhabitant thereof, are susceptible of a meaning which requires that the aider-man shall be and remain an actual resident of the ward for which he is elected.</p> <p>3. Municipal Corporations—Law Requires Aldermen to he Residents of Ward from Which Elected.—Sound public policy requires that those who represent the local units of government shall themselves be component parts of such units, and this purpose can only be truly served by requiring such representatives to be and remain actual residents of the units which they represent, in contradistinction from constructive residents.</p>

<p>1. Chattel Mortgages—Failure of Justice to Extend Time on, Immaterial as to Parties.—As between the parties to a valid mortgage the failure of a justice to enter the affidavit of extension of time on his docket is immaterial.</p> <p>3. Same—Requirements of Act Apply to Interested Parties.—The requirements of sections 1, 3, 3, and 4 of the chattel mortgage act, apply only to interested third parties, and do not in any manner affect the status of the parties to the instrument.</p> <p>3. Same—Who Are Interested Parties Under the Act.—Third parties who may avail themselves of the statute must have an interest in the property such as that of subsequent purchaser, lienor, judgment creditor, or an officer, bailiff or custodian in possession by virtue of a valid writ, execution or warrant.</p>

<p>1. Mines and Mining—What Is Not Compliance with Statute in Regard to Props.—That there may have been props somewhere in the mine, is not a substantial compliance with the statute that they were at the “usual place,”'particularly when the miner knows nothing about them.</p> <p>2. Same—When Contributory Negligence Does Not Bar Recovery Tinder Statute.—A miner who is' guilty of contributory negligence can recover under the act for the protection of miners, if the proximate cause of the injury is the Willful failure of the mine manager to obey the provisions of the statute, in reference to the furnishing of props.</p> <p>8. Same—“ Miners ” Act Is a Police Regulation.—The “ miners " act is a police regulation, passed in obedience to a constitutional provision of this State, and by the statutes and the decisions of the courts, a willful failure to obey the provisions of the statute has all the force of wanton and intentional injury in contemplation of law.</p>

<p>1. Appellate Court Practice—The Court Should Not be Compelled to Read a Long Record to See if There Are Possible Errors.—The Appellate Court should not be compelled to read a long record to ascertain if possible errors exist, but is entitled to the assistance of counsel in the review of all errors assigned.</p> <p>3. Freehold—May be Put in Issue by the Pleadings.—A freehold is involved within the meaning of the statute and constitution when the title to real estate is so put in issue by the pleadings, that the decision of the case necessarily involves a decision of such issue.</p>

<p>Trespass on the Case,—Death from negligent act. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding.</p>

<p>1. Railroads—Duty to Persons upon the Platform.—To a mere licensee, on a platform, without business or invitation, a railroad company owes no duty; but to one who is there by invitation, express or implied, or who has business with the company, it owes the duty of keeping its platform free from dangerous obstructions.</p> <p>2. Negligence—Liability of Property Owners to Persons upon Their Premises. —The liability of property owners to persons upon their premises may be classed : 1. To bare licensees or volunteers. 2. Those who are expressly invited or induced by active conduct of the owner to go upon the premises. 3. Customers and others who go there on business with the occupier. In the first of these cases a party injured has no right of recovery against the owner, and the contrary in cases falling under the second and third heads.</p> <p>3. Damages—May Be Recovered for Injury Received by a Defect or Obstruction in a Way or Passage.—The general principle is well settled, that a person injured, without negligence on his part, by a defect or obstruction in a way or passage over which he has been induced to pass, for a lawful purpose, by an invitation express or implied, can recover damages for the injuries sustained, against the individual so inviting and being in fault for the defect.</p>

<p>Trespass on the Case,—Death from negligence. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding.</p>

<p>1. Instructions—When They Should he Given at Close of Plaintiff's Testimony in Chief to Find for Defendant.—The practice in this State of moving the court to instruct the jury at the close of plaintiff’s testimony in chief to find for the defendant is now well settled to be confined to those cases where the plaintiff’s evidence utterly fails to establish a cause of action against the defendant, thus presenting to the court a question of law to be determined by it, and which, if determined in favor of the defendant, ends the case; for, when there is no evidence to sustain a verdict against a defendant if one is found, the law is that no such verdict will be allowed to stand.</p> <p>2. Same—When Covered by Other Instructions, Not Error to Refuse.— One can not complain of an instruction being refused which is covered by other instructions given at his request.</p> <p>3. Trial—When the Court Should Not Tahe the Case from Jury.— Where there is evidence tending to establish the plaintiff’s cause of action an instruction to find for the defendant is properly refused.</p>

<p>Appeal from the Circuit Court of Pope County; the Hon. Alonzo K. Vickers, Judge, presiding.</p>

<p>1. Corporations—Stockholder Can Not Surrender Stock and Get Value Thereof Without Consent of Corporation.—It is true that stock is the individual property of the stockholder, and he may do as he chooses with it in certain respects, but he can not surrender it to the corporation and withdraw from the corporation its value, without consent of the corporation, until the “winding up” stages of the corporation’s existence has been reached.</p> <p>2. Same—Consolidation of, Stockholder’s Contract Governed by Statute in Force at Time of Subscription.—The general rule is that a stockholder can not be forced into a new corporation without his consent, yet the statutes in force at the time of his subscription, which authorize consolidation, enter into and become part of the subscription contract, and under such statutes a subscriber for stock buys it in as full contemplation of the probable exercise of this power as of the exercise of any other corporate power granted.</p> <p>8. Same—Where Right of Consolidation Granted by Statute, Stockholder Must be Governed by Action of Corporation When Lawfully Consummated.—Where the right to consolidate is granted by statute to corporations, like all other rights granted by statute, it is granted that it may be exercised, and a stockholder has consented in advance in his subscription contract to such consolidation, if the same shall be lawfully consummated; he has no more right to rescind such consent than he has to rescind his promise to pay for his stock, and he has no more right to refuse to follow his corporation into such lawful consummated consolidation, than he has to refuse to remain with it in the proper exercise of any other power granted.</p> <p>4. Same—Winding-up Stage of Constituent Corporations Not Accelerated by Consolidation.—The winding-up stage of constituent corporations, within the meaning of these words as applied to the time for distribution of the corporate assets, is not accelerated by the consolidation, and therefore the mere fact of consolidation will not give the stockholder the right to have the corporate assets converted into money.</p> <p>5. Same—When Right to Recover Value of Shares of Stock upon Consolidation Exists.—The right to recover the value of shares of stock upon the consummation of a consolidation, may exist when the consolidation is effected without authority or wrongfully, and without the consent of the suing stockholder, or where the right to consolidate is granted after such stockholder has subscribed for his stock.</p> <p>6. Same—Duty of Constituent Corporation After Consolidation as to Accepting Surrender of Stock and Paying Value Thereof.—Upon consolidation, all the duties and obligations of constituent corporations, whether to the public or to private persons, are cast upon and must be performed and discharged by the consolidated corporation; but it is not the duty of a constituent corporation in which one holds stock to accept a surrender of that stock and pay the value thereof in money from the corporation assets until such time as that corporation should reach the “ winding-up” stage within the proper meaning.</p>

<p>1. Verdicts—Of Two Juries, When Conclusive.—Where there is nothing in a case but questions of fact, and the evidence in regard to the controlling questions is conflicting, the jury are the better judges of the credibility and reasonableness of the testimony of the witnesses, and after the verdict of two juries the same way, the Appellate Court does not feel justified in saying the plaintiff had no case.</p>

<p>Replevin.—Appeal from the Circuit Court of Richland County; the Hon. Prince A. Pearce, Judge, presiding.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of St. Clair County; the Hon. Benjamin R Bubboughs, Judge, presiding.</p>

<p>1. Disconnection of Territory—Judgment Requiring Disconnection of, Should he Reversed When Statute Giving the Right is Repealed. —Where the statute under which it is sought to coerce a village to disconnect territory described in the petition, has been repealed since the trial of the case, and there being no statute in force requiring such disconnection, a judgment commanding the municipal authority to do so should be reversed.</p>

<p>Voluntary Assignment.—Claim. Appeal from the County Court of Union County; the Hon. Monroe C. Crawford, Judge, presiding.</p>