Volume 101 — Illinois Appellate Court Reports

<p>Action on the Case.—Personal injury. Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the August term, 1901.</p>

<p>1. Railroads—What Principles are Applicable to Liens upon— The specific requirements for a mechanic’s lien do not apply to the statute providing for liens upon railroads, but the general principles applicable to liens, when not modified by statute, do apply.</p> <p>2. Liens—Remedies for Enforcement.—Liens are enforceable in equity unless the law has provided for another mode, and this is true of all statutory liens, except in all cases where the lien is in the nature of a pledge and possession accompanies the lien.</p> <p>3. Same—Statute in Reference to Liens on Railroad Must be Strictly Followed.—The right to liens upon railroads is statutory, and like mechanic’s liens, the provisions of the statute must be strictly followed.</p> <p>4. Chancery Practice—Parties Brought in by Amendment in Suits for Liens.— Suits as to parties brought in by amendment is begun only from the time of amendment, so far as the rights of parties are involved having liens on the property sought to be held by such suit.</p>

<p>1. Novation—Definition and Requisites.—Novation is the substitution of a new obligation for an existing one and must be made by contract. The original agreement of which novation is sought must be absolutely extinguished and the new agreement substituted for it. All the parties, not only to the new contract but also to the one for which the new contract is substituted, must consent to the novation; the parties to the original contract must consent in order to have that extinguished, and the parties to the new contract in order to have a valid obligation substituted for the old.</p> <p>2. Partnership—New Partner Not Responsible for Previously Contracted Firm Debts.—A new partner coming into an existing firm, will not be liable in respect to debts contracted by the firm previous to his entering it unless he assumes them, and the same rule applies where one becomes a partner with another in a business already established.</p> <p>3. Same—Presumption as to Incoming Partner Assuming Debts Previously Contracted.—The presumption always is that an incoming partner into an existing firm does not assume the payment of previously contracted debts, hut such presumption may be rebutted by satisfactory proof of a contrary intention and agreement.</p> <p>4. Same—Evidence Necessary to Hold Incoming Partner for Firm’s Previously Contracted Debts.—To hold an incoming partner for previously contracted debts of an existing firm there must have been on his part a promise, agreement, or intention to assume the debt; but such promise may be proved by circumstantial evidence, i. e., may be inferred from proof of such fact and circumstances as clearly warrant such inference.</p>

<p>Action on the Case,—Personal injury. Appeal from the Circuit Court of Washington County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the August term, 1901,</p>

<p>1- Instructions—To Find for the, Defendant.—Where there is an instruction to find for the defendant the rule is, where there is evidence tending to prove all that is required to warrant a recovery, the court should submit the case to the jury, without regard to what the presiding judge may, at the time, think the court would hold as to the weight evidence in case of a motion for a new trial.</p> <p>2. New Trial—When Granted on Ground that Verdict is Contrary to Evidence.—Although there may be evidence tending to prove all that is required to warrant a recovery, still, where the verdict is so manifestlv against the weight of evidence as to make it apparent to the court that the verdict was not the result of the impartial and honest judgment of the jury, but that it must have resulted from mistake, partiality, prejudice,or some improper motive or condition, it is the duty of the court to set aside the verdict and award a new trial.</p> <p>3. Same—When Not to be Granted on Ground that the Verdict is Contrary to Evidence.—The verdict will not be set aside and a new trial granted when there is contrariety of evidence, and the facts and circumstances, by a fair and reasonable, intendment, will authorize a verdict, notwithstanding it may appear to be against the strength and weight of the testimony.</p> <p>4. Negligence—Liability of a Party for Concurring Negligence of Himself and Third Party.—One is liable for an injury caused by the concurring negligence of himself and a third party, to the same extent as for one caused entirely by his own negligence.</p> <p>5. Instructions—When Sufficiently Comprehensive as to Time of Injury.—In a suit for a personal injury the phrase “ while in the exercise of ordinary care and caution for his own safety,” as used in an instruction, is sufficiently comprehensive as to time, the word “ while” meaning during that time, and necessarily implies some degree of continuance, and refers to the whole series of circumstances involved in the transaction.</p>

<p>Assumpsit, on an oral contract of insurance. Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1901.</p>

Information in the nature of a quo warranto. Appeal from the Circuit Court of Pike County; the Hon, Henry Van Sellers, Judge, presiding. Heard in this court at .the November term, 1901.

<p>Suit for the Violation of an Ordinance.—Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwaltbr, Judge,</p> <p>presiding. Heard in this court at the November term, 1901,</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Greene County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1901.

<p>1. Appellate Court Practice—Complete Abstract of Record to be Prepared and Filed.—It is the duty of attorneys bringing cases to this court for review, under the rule, to prepare and file complete abstracts of record that truly show the action of the trial court which they allege constitute reversible errors against; them, and that they objected to such and preserved exceptions.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Hancock County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>Assumpsit, on a certificate of deposit. Appeal from the Circuit Court of Cass County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>Assumpsit, on a contract of insurance. Appeal from the Circuit Court of Douglas County; the Hon. William G. Cochran, Judge, pre-</p> <p>siding. Heard in this court at the November term, 1901.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the November term, 1901.

<p>Assumpsit.—Common counts. Error to the County Court of Coles County; the Hon. John P. Harrah, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>Indictment, for wife abandonment. Error to the County Court of Clark County; the Hon. Ausby L. Lowe, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the October term, 1901.</p>

<p>Appeal from the County Court of Sangamon County; the Hon. George W. Murray, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>Trespass on the Case.—Appeal from the Circuit Court of Ford County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>1. Master and Servant—Duty of the Master to Furnish Reasonably Safe Machinery.—It is the duty of the master to provide suitable and safe, or ordinary, machinery or appliances, which, with reasonable care, can be used with reasonable safety.</p> <p>2. Same—Master Not Required to Furnish the Safest or Best Machinery.—The master’s duty is not to furnish the safest or best machinery, but his obligation is met by the maintenance of such as is reasonably safe for the purpose maintained.</p> <p>3. Instructions — Effect to be Given Evidence on a Peremptory Instruction to Find for Defendant.—A motion fora peremptory instruction to find for the defendant brings before the trial court for its determination the right of the plaintiff to a verdict upon the evidence, and the effect to be given the evidence is the same as if a motion for a new trial should be made by defendant after verdict returned against him, on ground verdict would not be supported by the evidence.</p>

<p>Trespass on the Case.—Personal injury. Appeal from the Circuit Court of Sangamon County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>1. Appellate Court Practice—The Record Must Show the Errors Assigned.—Where an appellant assigns only, as error, the refusal of the trial court to admit certain evidence, but the record fails to show that the trial court did refuse to admit such evidence, the judgment will be affirmed.</p> <p>2. Verdicts—On Conflicting Evidence, Conclusive.—"When, a question is properly submitted toa jury and them finding is abundantly supported by the evidence, the judgment based upon it will be affirmed.</p>

<p>I. Verdicts—Upon Conflicting Evidence.—A verdict upon conflicting evidence, with testimony sufficient, when standing alone, to support it, will not be set aside.</p>

<p>I. Commercial Paper—Assignee of, Before Maturity and for a Valuable Consideration.—A party who takes commercial paper before maturity, for a valuable consideration, without knowledge of any defects of title, and in good faith, holds it by a valid title against the world. Suspicion of defect of title, or the knowledge of circumstances which would excite suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transfer, will not defeat his title. That result can only be produced by bad faith on his part. The burden of proof lies on the person who assails his rights.</p>

<p>Trespass on the Case.—Personal injury. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1901.</p>

Trespass on the Case.—Death from negligent acts. Appeal from the Circuit Court of Sangamon County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, pi'esiding. Heard in this court at the November term, 1901.

<p>1. Pleading—Evidence Admissible in Actions oil the Case Under the General Issue.—Under a plea of not guilty, in an action on the case, the defendant may not only put the plaintiff upon the proof of the whole charge contained in the declaration, but may also give in evidence any justification or excuse.</p> <p>2. Evidence—Admissible Under the General Issue that a Railroad in Question Was Not Operated by Defendant.—In an action against a railroad company for injuries to stock, where it is alleged in the declaration that a certain road was owned and operated by the defendant, to which the general issue was pleaded, the defendant should be allowed to show that it was not operating the road in question.</p>

<p>Assumpsit.—Common counts. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>Debt.—Appeal from the Circuit Court of Sangamon County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1901.</p>

Assumpsit, for merchandise sold and delivered. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1901.

Trespass on the Case.—Death from alleged negligence. Appeal from the Circuit Court of Sangamon County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1901.

<p>Assumpsit, for wages. Appeal from the Circuit Court of Adams County; the Hon. John C. Broady, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>1. Appellate Court Practice—Bill of Exceptions Necessary.— The Appellate Court can not review errors assigned and argued in this case for the reason that they are not preserved in a bill of exceptions.</p> <p>2. Record—What is Not—Jttecitals of the Clerk.—The recitals of a motion and action of the court entered upon the journal by the clerk does not make them a part of the record.</p>

<p>Appeal from the County Court of Douglas County; the Hon. William H. Bassett, Judge, presiding. Heard in this court at the November term, 1901.</p>

Bill for an Injunction.—Appeal from the Circuit Court of Douglas County; the Hon. William G-. Cochran, Judge, presiding.

<p>1. Disconnection of Territory—iVbi Consummated by Filing the Petition—Municipal Corporations.—The disconnection of territory from a village under the act of 1879 is not consummated by the filing of a petition containing the statutory requirements, and the repeal by the legislature of the enabling act of 1879 prior to the passage of an ordinance, by the village, disconnecting such territory, defeats the proceeding.</p>

M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1901. Appellee brought this suit before a justice of the peace, where a trial was had by a jury which resulted in a verdict against him. No judgment was entered by the justice on the verdict of the jury, the only entry made by him being as follows: “On March 19, 1901, case called for trial. Defendant aslced for a jury, which was granted. Venire issued and jury summoned.

Assumpsit, for work, labor and services. Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge, pre- siding. Heard in this court at the November term, 1901.

<p>Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>1, Verdicts— Unsupported by the Evidence.—A verdict wholly unsupported by the evidence will be set aside, and a decree based upon it will be reversed.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Adams County; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the November term, 1901.

Mortgage Foreclosure.—Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the November term, 1901. On the 20th of December, 1895, L. D. Slocum and wife conveyed 110 acres of land, situated near the city of Canton, in Fulton county, Illinois, to W. A. Howat. There was a mortgage on the land to secure an indebtedness of §7,000 to Levi M. Donnelly.

Bill to Restrain Waste.—Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1901.

<p>Bill to Construe a Contract of Insurance.—Appeal from the Circuit Court of DeWitt County; the Hon. William Gr. Cochran, Judge, presiding. Heard in this court at the November term, 1901.</p>

Trespass on the Case.—Death from negligence. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookw alter, Judge, presiding. Heard in this court at the November term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1901.

<p>1. Parent and Child—Right of Recovery for Loss of Services— Where $400 is Reasonable.—A judgment of $400 for loss of the services of a son sixteen years of age, occasioned .by injuries received while employed in a coal mine, in the light of the evidence in this case is very reasonable.</p>

Trespass on tile Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1901.

Assumpsit.—Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the November term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1901.

Trespass on the Case, for personal injury. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1901.

<p>1. Divorce—Binding Effect of the Decree—Estoppel of the Defendant.—A decree of divorce granted on a bearing in open court upon, evidence then adjudged, sufficient to establish the allegations of the bill of complainant, is binding upon party against whom such decree is entered, and he can not afterward be permitted to avoid its effects in any respect by averring matters which, if true, and interposed as a defense in apt time, would have prevented such decree.</p> <p>3. Same—Custody of Children in Divorce Proceedings.—So far as a decree giving the custody of a child of the parties is of a temporary-nature it is in fieri, and to that extent the final disposition of the child remains with the court, and the parties are entitled to have it kept within the jurisdiction and reach of its process in order that its mandates may be immediately effective.</p>

<p>1. Insurance—Construction of Policies.—Policies of insurance are to be construed most strongly against the insurer.</p> <p>2. Same—Meaning of the Phrase “ An Eye Witness.”—An eye witness to a shooting does not mean one who saw the load leave the discharged gun. Nor does its meaning exclude any one whom the statute permits to testify to a matter in issue.</p>

<p>Appeal from the County Court of Clark County; the Hon. J. C. Purdue, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>Appeal from the County Court of Clark County; the Hon. J. C. Purdue, Judge, presiding. Heard in this court at the November term, 1901.</p>

<p>1. Consideration—What is Sufficient for a Promissory Note.—It is a sufficient consideration for a promissory note, that the maker in giving it recognized the right of the payee to certain rents claimed, and agreed to pay the same according to the terms of his note.</p>

<p>1. Railroads—Not Required to Exercise the Highest Degree of Care Toward Persons Not Passengers.—Where there is no relation of carrier or passenger and no contractual relation exists between a railroad company and a person injured, the company is not held to the highest degree of care toward such person.</p> <p>2. Same—Prima Fade Case of Negligence. —Where a passenger without fault on his part is injured by an accident, proof of the fact makes out a prima fade case of negligence against the carrier and the burden is on the latter- to prove itself not guilty.</p> <p>S. Verdicts—When the Jury Are Properly Instructed to Find for the Defendant.—In an action for personal injuries resulting from the negligence charged in the plaintiff’s declaration, where there is no evidence tending to show negligence on the part of the defendant, the jury are properly instructed to find him not guilty.</p>

Mortgage Foreclosure.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. John E. Houston, appellant, the owner and holder of the principal and coupon notes and the trust deed securing the same, which are in question in this litigation, made demand of the maker for payment of that one of the notes which became due the twenty-fourth day of February, 1899.

Attachment and Garnishee Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. July 13, 1900, an action of assumpsit was brought in the Circuit Court by Kellogg-McICay-Cameron Company against William C. Hill. A writ of attachment in aid was issued, and July 14, 1900, was served on William Schmidt Baking Company as garnishee.

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. This was an action of assumpsit for the price of a monument. The plaintiff offered in evidence a letter written by one of the defendants to the plaintiff concerning payment of the indebtedness. This letter the court refused to admit. There Was a verdict and judgment for the defendants.

<p>Assumpsit, on a certificate of a beneficiary association. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. October 2,1900, in the Circuit Court, Mary A. Isle made her written motion to be appointed next friend of her mother, Henrietta Sackman, to file and prosecute the bill of complaint in this cause.

Foreclosure, of a chattel mortgage in chancery. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. June 16, 1896, appellees executed seven promissory notes, for the total sum of $265, to E. Smith; the same date appellees executed a chattel mortgage upon all their household effects to secure these notes.

Man (1 am ns.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Fred Jaeger, the 4th day of October, 1900, filed his petition in the Circuit Court for a mandamus commanding the mayor of the city of Chicago to issue to him a license to conduct a bowling alley on the corner of Webster avenue and Sheffield avenue, in the city of Chicago.

Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1901. Statement.—December 21, 1897, the appellee executed a promissory note for the sum of $1,500, payable to the order of William A. Bowles, ninety days after date, with interest at the rate of six per cent per annum.

Bill to Set Aside an Assignment.—Appeal from the Circuit Court of Cook County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the October term, 1901.

Bill to Foreclose a Trust Deed.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

Assumpsit.—Error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. January 30, 1899, plaintiff in error began an action in the Superior Court against the defendant in error and others, to recover damages alleged to have been caused by unskillful and negligent medical treatment.

<p>Bill to Set Aside Deeds of Real Estate.—Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1901.</p>

<p>1. Partition—Reasonable Solicitor's Fees, When to be Allowed.—In suits for partition, when the rights and interests of all the parties are properly set out in the bill or petition, the court is authorized to apportion the costs, including the reasonable solicitor’s fees, among the parties to the suit, so that each shall pay his equitable portion of the same, unless the defendants or some one of them shall interpose a good and substantial defense to the suit.</p> <p>2. Appellate Court Practice—Where the Record is Sufficient to Enable the Court to Pass upon the Questions Presented.—Where the record is sufficient to enable the court to intelligently pass upon the questions presénted, it is the duty of the court to do so; the failure to file a complete record, however, is cause for affirming the decree, but not for dismissing the appeal.</p>

Malicious Prosecution.—Error to the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. This was an action to recover damages for an alleged malicious prosecution. The plaintiff had been arrested, held to bail, indicted and tried at the instance and by the procurement of the defendant.

Debt, on a- replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Elbridc® Haneoy, Judge, presiding. Heard in the Branch Appellate Court at the March [term, 1901. June 23, 1893, a judgment by confession was entered in the Circuit Court in favor of A. S. Wehrheim against Leroy Payne and Cordelia B. Payne for the sum of $5,775. An execution was placed in the hands of the sheriff at 5:10 p. m. on the same day.

Assumpsit.—Common counts. Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Statement.—This is a suit originally brought by or in the name of one Charles E. Payne, as assignee of Farson & Libbey Company, insolvent. The declaration sets forth the assignment by said insolvent to said Payne by general deed of assignment for the benefit of creditors.

Trespass on the Case.—Personal injury. Error to the Superior Court of Cook County; the Hon. Marcus Kavanaugh, Judge, -presiding. Heard in the Branch Appellate Court at the March term, 1901.

Bill of Interpleader.—Consolidated causes. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

Garnishee Proceedings. —Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Statement.—This is an appeal from a judgment rendered in favor of appellees in a garnishment proceeding brought in the name of John and William Oliver as garnishors against the appellees respectively, as garnishees.

Trespass on the Case.—Personal injury. Appeal from the Circuit Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this October term, 1901. This suit was brought by appellee, by his next friend, to recover damages sustained by appellee through alleged negligence of appellant.

John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. October 28, 1898, before a justice of the peace, there was rendered a judgment in favor of defendant in error and against plaintiff in error and one Harry B. Clifford jointly, for $200 and costs. November 15, 1898, plaintiff in error filed his appeal bond with the clerk of the Circuit Court, which was approved, and a supersedeas issued to the justice.

<p>' 1. Alimony—Modification of a Decree for, Addressed to the Judicial Discretion of the Court.—The application for the alteration of an original decree for alimony is addressed to the judicial discretion of the court, and ordinarily, in the absence of fraud in procuring such decree, the inquiry is directed to ascertain whether any sufficient cause has intervened since the entry of original decree, such as should, in the application of equitable principles, authorize a change in the allowance.</p> <p>2. Same—Power of Succeeding Chancellors to Modify a Decree for, upon Facts Existing at the Time of Its Entry.—It is not contemplated that the same or succeeding chancellors will, after the lapse of an indefinite time, have power to reverse, alter or modify a decree for alimony upon the facts existing at the time of its entry.</p>

Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. This was a suit by 'Maria Sherman, plaintiff in error, to recover damages from the city of Chicago for personal injuries sustained by reason of a fall upon a defective sidewalk in the city on May 12, 1899.

Assumpsit, on a policy of life insurance. Error to the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Hear d in this court at the October term, 1901. Statement,—Defendant in error, an insurance company, issued a policy insuring the life of David Roberts, and plaintiff in error was named therein as beneficiary. The policy of insurance was issued March 14, 1399.

Trespass on the Case.—Personal injury. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1901. Rehearing denied. Appellee brought this suit to recover damages claimed to have been sustained by him through negligence of appellant, his employer. The declaration consists of two counts.

Debt, on municipal bonds. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the October term, 1901.

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Charles W. Bishop, Judge, presiding. Heard in this court at the October term, 1901.</p>

Bill for Belief.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1901. Appellee had recovered its judgment against one Polzin, had caused execution to be issued thereon, and threatened to levy upon certain real property to which appellant claims ownership. Appellant exhibited her bill in chancery, seeking to enjoin the levy and to have the lien of the judgment set aside as to her property.

<p>Assumpsit.—Common counts. Appeal from the Circuit Court of Cook County; the Hon.-Elbridge Hanect, Judge, presiding. Heard in this court at the October term, 1901.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the October term, 1901.</p>

Debt, on the bond of a secretary of a building and loan association. Appeal from the Circuit Court of Cook County; the Hon. Charles W. Bishop, Judge, presiding. Heard in this court at the October term, 1901.

Trespass oil the Case.—Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanaugh, Judge, presiding. Heard in this court at the October term, 1901. Statement by the Court.—Appellee, who was a foreman in the employ of Arnold, Schwinn & Go., a corporation engaged in the manufacture of bicycles and parts thereof, was injured on January 7, 1899, while engaged at his work.

Trespass on the Case.—Personal injuries. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1901. Appellee brought this suit to recover damages sustained, as it is claimed, through negligence of appellants, his employers. The narr. consisted of two counts.

<p>1. Practice—Stiputationsin Court, When to be Enforced.—A stipulation by which it is agreed by and between the parties to a cause, as a matter of compromise and settlement pro tanto, of the controversy, that a jury be waived, cause submitted to the court as to all issues therein, that the findings be entered in favor of the plaintiff for six hundred and seventy-five dollars and forty-seven cents, without any costs to either party and without any findings as to when the amount became due and payable, that the attachment be released and all gar-' nishees discharged upon payment of said sum, will be enforced as made.</p> <p>2. Same—Issues on the Merits of a Case and on Attachment Separate and Distinct.—The issues on the merits of a case and on an attachment in aid, are entirely separate and distinct; although they may properly be tried together, such a proceeding is not necessary.</p> <p>3. Foreign Corporations—Are Amenable to Process of Attachment.—A foreign corporation is liable to attachment, notwithstanding the fact that it owns property, has an office and does business in this State.</p>

<p>Foreclosure.—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard "in this court at the October term, 1901.</p>

<p>1. Beneficiary Associations—Eligibility of Beneficiaries to be Determined by Reference to the Laws in the State Where the Association is Organized.—When a controversy arises between the beneficiaries of a beneficiary association, in which the eligibility of one or more of them is questioned, their eligibility is to be determined by reference to the laws of the State where such association is organized.</p>

Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Edwarp F. Dunne, Judge, presiding. Heard in this court at the October term, 1901. Appellee is lessee of certain chattels, being theatre scenery, properties, etc., which were leased to him. by one P. Harry Liebler. One Newell was appellee’s manager in his theatrical business. Appellant undertook, as a common carrier, to transport the goods in question from Chicago to Detroit for appellee.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1901. Statement.—This is an appeal from a judgment rendered in favor of appellee and against appellant, in an action for injuries caused, as is alleged, by appellant’s negligence.

Bill for Divorce.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1901. Appellant and appellee were married in 1878. In 1900 appellant exhibited his bill of complaint alleging, inter alia, that appellee had been guilty of extreme and repeated cruelty, and praying for a decree of absolute divorce. Appellee filed answer and cross-bill.

Foreclosure of Trust Deeds.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Henry B. Willis, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

Assumpsit, to recover the price of a gambling device. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, Í901. This was an action of assumpsit to recover the price of a slot machine music box with a gambling attachment. The general issue only was pleaded by the defendant. Under this the defendant introduced evidence showing that the machine was a gambling device.

<p>1. Judgment—Against One of a Number of Joint and Several Contractors Does Not Release the Others. —The rule in this State and generally, is, that a judgment against one of joint and several contractors does not release the others, neither is it a bar to a suit against them until a satisfaction is had.</p> <p>3. Rents—Guaranty of Monthly Installments—Suits for Separate Installments.—Where a person guarantees the payment of the'monthly installments of rents under a lease for a term of years, the lessor may have an action for each monthly installment of such rent as it becomes due, or wait until the expiration of the term and bring one action for the entire amount then due.</p>

<p>1. Mechanic’s Lien—Form of a Waiver of.—The opinion in this case contains the form of an instrument waiving a mechanic’s lien, and the court holds it sufficient for such purpose.</p> <p>2. Waiver—Of a Mechanic’s Lien, a Question of Intention.—What constitutes a waiver of a mechanic’s lien is essentially a question of hiten tion.</p> <p>3. Estoppel—Does Not Operate to Aid in the Consummation of a Fraud.—The doctrine of estoppel will never operate to aid in the consummation of a fraud.</p> <p>4. Same—By Conduct or Willful False Statements.—Where a man by his words or conduct willfully endeavors to cause another to believe in a certain state of facts, which the first knows to be false, and if the second believes in such state of things and acts upon his belief, he who knowingly made the false statements is estopped from averring afterward that such a state of things did not in fact exist.</p>

Trespass on tlie Case.—Death from alleged wrongful act. Appeal from the Circuit Court of Cook County; heard in the Branch Appellate Court at the March term, 1901. This suit was brought by appellant to recover damages arising from the death of Edward Wall, occasioned, it is alleged, by the negligence of appellee. January 5, 1900, a declaration containing twelve counts was filed, to which a general demurrer was interposed, ■which was, January 12, 1901, sustained.

<p>Bill to Set Aside a Judgment.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. John C. Carver, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

Action l'or Rent.—Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.' This was an action by appellee to recover rent under a written lease. The lease was dated May 1, 1893, and ran from William J. Watson to appellants, and was to expire April 30, 1898.

Foreclosure.—Deficiency decree. Appeal from the Circuit Court of Cook County. Heard in this court at the March term, 1901. Held: as modified.

Trespass on the Case.—Death from alleged negligence. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1901. This suit was brought by appellee to recover damages for the death of appellee’s intestate, which, it is alleged, was caused by negligence of appellant, his employer.

<p>I. Practice— Where No Exceptions Are Taken to the Admission of Evidence.—Where no exceptions to the method of computing the amount due by the plaintiff’s bookkeeper, and no proof to the contrary is made, and the amount shown by his computation is the same as that found due by the jury, and no exception is taken to its admission, however erroneous, it is not open to review on appeal or error.</p>

<p>1. Practice—Instruction to Find for the Defendant, When Proper. —When all the evidence considered in its most favorable aspects toward the plaintiff, conceding it to be absolutely true, does not tend to prove the cause of action declared upon, an instruction to find for the defendant is proper.</p> <p>2. Same—When an Instruction to Find for the Defendant Should Be Given.—An instruction taking the case from the jury and directing a verdict for the defendant should be given where the evidence, with all the legitimate and natural inferences to be drawn therefrom, is wholly insufficient, if credited, to sustain a verdict for the plaintiff.</p> <p>3. Payment—Receiving a Cheek, When Not Payment of a Note.—The receiving of a check for the amount of the note is not a payment of the note, but is only a means to procure the money due upon it.</p> <p>4. Agents—Can Not Exceed Their Authority.—An agent to collect money can not bind his principal by any arrangement short of an actual collection of the money; he can accept nothing in payment except money, nor can he commute it in payment of a debt due from himself.</p>

<p>Trespass on the Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, pn-siding. Heard in the Branch Appellate Court at the March term, 1901.</p>

<p>Mortgage Foreclosure.—Error to the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

<p>Assumpsit, on a certificate of a beneficiary society. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

Trespass on the Case.—Death from alleged negligence. . Appeal from the Circuit Court of Cook County: the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

Assumpsit, on a certificate in a mutual beneficiary society. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Ida Weber, appellee, sued appellant, a mutual benefit society, in assumpsit, to recover $500 on a certificate issued by appellant to her husband, Louis Weber, July 24, 1895, conditioned that he should comply with all the laws, rules and requirements of the order.

<p>1. Verdicts—Bemittitur in the Appellate Court When Excessive.— Where the evidence in the record shows the verdict to be excessive the excess may be remitted in the Appellate Court and the judgment affirmed for the balance.</p>

Trespass on the Case.—Death from alleged negligence. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1901,

Trespass on the Case.—Death from alleged negligence. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1901.

<p>Bill for an Injunction.—Appeal from the Superior Court of Cook County: the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1901.</p>

<p>Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1901.</p>

Assumpsit, for board and lodging of a minor child. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the October term, 1901.

Bill for an Injunction.—Appeal from the Superior Court of Cook bounty; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. This was a bill in equity, brought by the appellant against H. JVI. Scott and six other defendants for the purpose of preventing a multiplicity of suits, for an injunction and an accounting. A preliminary injunction was granted without notice. A motion was made to dissolve the injunction.

<p>1. Verdict—When the Judgment Based upon It Will Be Affirmed.— When the court can not say from the evidence and the circumstances shown, that the conclusion of the jury is so manifestly against the weight of the evidence as to justify this court in setting it aside, the judgment based upon it will be affirmed.</p> <p>3. Same—When Founded upon Circumstantial Evidence Alone.— A verdict may be well founded upon circumstantial evidence alone, and circumstances often lead to conclusions more satisfactory than direct evidence can produce.</p> <p>3. Evidence—No Distinction Between Direct and Circumstantial Evidence.—The law makes no distinction between the direct evidence of a fact and evidence of circumstances from which the existence of such fact may be inferred.</p> <p>4. Same— Of the Condition of Machinery Immediately After an Accident, Admissible.—Evidence of the condition of a passenger elevator immediately after an accident to it, where there is nothing in the proofs already adduced to show that a change in its condition had occurred or might have occurred between the "accident and the time when the witness examined it, is properly admitted.</p> <p>5. Instructions—To be Bead in Connection with the Others Given in the Case.—An instruction is to be read in connection with all the other instructions given in the case, and must be understood in reference to the state of the case before the court.</p>

Motion to open a default, set aside a judgment and allow the defendant to plead. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. This is an appeal from an order and judgment of the Superior Court of Cook County, overruling the motion of the defendant asking that a default be opened, judgment set aside, and the defendant allowed to plead.

<p>1. Trespassers—Right to Use Sufficient Force in Ejecting.—A person employed by a corporation to guard its premises from trespasses by drunken and disorderly persons has the right to use such force as is reasonably necessary to prevent such persons from trespassing upon such premises, but no more.</p>

<p>Debt, on a replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

Action for Deceit.—Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. This was an action on the case brought by appellant to recover damages by reason of misrepresentations made by appellee as to the number of acres contained in a farm in the State of Mew Jersey.

Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. This was an action to recover damages sustained by a boy from the alleged negligence of plaintiff in error. The accident happened on the afternoon of Sunday, June 6, 1897, at the point where 111th place comes into Michigan avenue from the west.

Trespass on the Case.—Death from alleged negligence. • Error to the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. At about a quarter before nine o’clock on the evening of December 25, 1897, Andrew Muszynski was killed at the corner .of Exchange avenue and Ninety-first street, Chicago, by contact with a trolley car of the Calumet Electric Street Railway.

Voluntary Assignment.—Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Appellant, the International Trust Company, is a banking and trust company, with offices in the city of Boston. John M. Graham, of Boston, is its president.

Assumpsit, on a policy of life insurance. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

Contempt of Court.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. This is an appeal from an order imposing on appellant a fine of $500 for contempt of court and committing him to jail until he should comply with a certain decree of court theretofore entered.

<p>1. Contempt op Court—Disobedience of a Decree Must be Willful.— Where disobedience of a decree is not willful, and does not clearly appear to have arisen from an intent to set at naught or bid defiance thereto, the power to punish for contempt can not be properly exercised.</p> <p>2. Same—Order for the Commitment Should Name a Definite Term of Imprisonment.—The better opinion seems to be that the order of commitment should name a definite term of imprisonment in all cases when the imprisonment is inflicted as a punishment for the contempt and not as a means to compel the party to do some act required of him by the court.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Appellee was injured while assisting in unloading stone from a car.

<p>1. Solicitors’ Fees—Do Not Depend Entirely upon the Amount Involved.—Where a mortgagor contracts to pay a reasonable sum, that is, to pay a usual and customary charge, for the services rendered, the proportion such sum may bear to the amount involved furnishes no just basis in itself, for determining what is a reasonable fee. It is rather, what is reasonable considering the services rendered in the case of the foreclosure.</p> <p>2. Foreclosure—Sufficiency of the Decree as to the Terms of Sale.— A decree of foreclosure providing that the premises be sold at public auction, for cash, to the highest and best bidder “ at the judicial salesroom of the Chicago Real Estate Board, No. 57 Dearborn street, in the City of Chicago, in the County of Cook and State of Illinois,” and that the master in chancery execute the decree, that he give public notice of the time, place and terms of such sale by previously publishing the same weekly for three successive weeks, in a secular newspaper of genera! circulation, published in said city, the first publication to be at least twenty days prior to the day of sale, is sufficient.</p>

<p>Action Under the Dram-Shop Act.—Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the October term, 1901.</p>

Debt, to recover a penalty for the violation of an ordinance. Appeal from the County Court of Peoria County; the Hon. R. H. Lovett, Judge, presiding. Heard in this court at the October term, 1901. Rehearing denied.

<p>1. Conveyances—Effect of the Words “ Convey and WarranV— The words “ convey and warrant ” in a deed for the conveyance of lands are to be deemed and held as a covenant by the grantor that the premises conveyed were at the execution of such conveyance free from all incumbrances.</p> <p>2. Same—Affecting the Title of Lands Situated in Other States.—The validity and construction, as well as the force and effect of all conveyances affecting the title of land, depend upon the law of the State where the land is situated.</p> <p>3. Same—Effect of Covenants Which Run with the Land.—Covenants which run with the land are to be governed and construed by the same laws as the granting part of the deed. They can not be separated from the land and transferred without it, but go with it, as annexed to the estate, and bind the parties in respect to the privity of estate.</p> <p>4. Jurisdiction—Local, and Appertains to the State Where the Property is Situated.—The jurisdiction over real property is local, and appertains to the State where the property is situated, and the title thereto by conveyance passes only in conformity to the law of such State.</p> <p>5. Covenants—Against Incumbrances in Illinois upon Lands in Another State.—In Illinois, covenants against incumbrances which consist of money charges even with the land; and therefore the question whether there is such a covenant in a deed executed and delivered in Illinois of lands in another state, depends upon the law of the state where the land lies, and not upon the law of Illinois.</p>

<p>1. Records— Written Motions Can Not be Made a Part of. by the Act of the Cleric.—A clerk of a court of record can not make a written motion a part of the record by copying it into the transcript on error or appeal. Such a motion can only be made a part of such record for the purposes of error or appeal by a bill of exceptions.-</p> <p>2. Garnishment—Administrators Amenable to Swell Process.—An administrator is amenable to process of garnishment for the amount of a widow’s award in his hands at the instance of a party having a judgment against her.</p>

Assumpsit, on a breach of warranty of personal property. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchabd, Judee, presiding. Heard in this court at the October term, 1001.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of La Salle County; the Hon. Harvey M. Trimble, Judge, presiding. Heard in this court at the October term, 1901. Mr. Justice Brown dissenting.

<p>1. Jurisdiction—Of the Appellate Court, Where a Freehold' is Involved.—Where a party seeks, in his suit, to take a freehold from others and vest it in himself, the Appellate Court is without jurisdiction to determine the matter.</p> <p>2. Freehold-1 When Involved in a Proceeding to Abate Devises of Real Estate.—In a proceeding, by a child adopted under the provisions of section 5, chapter 4, R. S., to abate devises of real estate under the provisions of a will executed prior to such adoption, the relief sought would take a freehold from the devisees and vest it in the petitioner and this court is without jurisdiction to determine the matter.</p>

<p>1. Credibility of Witnesses— Opportunity of the Appellate and Trial Courts to Determine.—Where it is obvious that much of the testimony on one side or the other of a controversy is untrue, the jury and the trial judge, who saw and heard the witnesses, have a better opportunity than the Appellate Court to determine where the truth lies.</p> <p>2. Remedies—Of Persons Engaged in an Unlawful Business.—Where persons are engaged in an unlawful business, as arranging to bet on a foot race, the law will not aid either one to recover from the other, money invested in such enterprise, but will leave each party in the position in which he has placed himself.</p> <p>3. Appellate Court Practice—Defenses Not Interposed in the Trial Court, Not to Be Raised.—A defense not interposed in the court below can not be raised in the Appellate Court.</p> <p>4. Same— Refused Instructions Not Assigned for Error Are Waived. —The refusal of instructions requested by a party and not assigned by him as one of the reasons for a new trial is waived and can not be availed of by the assignment of error upon the record in the Appellate Court.</p>

<p>1. Appellate Court Practice—Where Cross-errors Are Necessary. —On an appeal by an unsuccessful plaintiff, where no cross errors are assigned by the successful defendant, the question of the action of the trial court.in permitting the common counts to be filed as an amendment to the declaration or of its refusal to strike them from the files can not be raised.</p> <p>2. Practice—Where a Court of Law Opens a Judgment and Allows a Defendant to Plead.—When a court of law opens a judgment by confession previously rendered by it, and permits a defendant to plead, the jurisdiction it thus exercises is of an equitable nature and it will not relieve the defendant in such judgment if he owes the amount and has no defense, either legal or equitable, to the debt for which the judgment was rendered.</p> <p>8. Same—Where a Court of Equity Will Not Open a Judgment to Allow a Defendant to Plead.—A court of equity will not open a judgment by confession for the purpose of allowing a defendant to plead, where he owes the amount of the judgment or is liable to pay the debt upon which such judgment is rendered and has no defense to such indebtedness.</p>

Action to recover the unpaid portion of the price due on a contract for the sale of real estate. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the October term, 1901.

<p>1. Res Adjudicata—As to Gifts—Administration of Estates.— When, a question has been finally decided in favor of a litigant it is afterward to be held as res adjudicata and not open to further discussion. (See 89 Ill. App. 147.)</p> <p>2. Presumptions—That Services Rendered by Relatives Are Gratuitous.—Where services are rendered either by or to one admitted into a family as a relative, the presumption of law is that such services are gratuitous and that the parties do not contemplate payment therefor, but this presumption may be overcome by proof of an express contract between the parties that payment is to be made therefor, or of facts and circumstances which show that both parties, at the time the services were rendered, intended pecuniary recompense other than that which arises out of the family relation.</p> <p>3. Gifts—Revocable Until Executed.—A gift is revocable until executed and a check intended as such from the drawer to the drawee is in reality merely a promise to make a gift and such gift is not executed until the check is paid.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1901.</p>

<p>1. Practice—Improper Remarks of Counsel in Impaneling a Jury. —In an action for personal injuries, counsel has no right to tell the jury that he understands that an insurance company is defending the case.</p>

Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Biohard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1901, Behearing denied.