Volume 103 — Illinois Appellate Court Reports

<p>1. Instructions—Injury to Personal Appearance and Physical and Mental Suffering as Elements of Damages.—An instruction which tells the jury that in estimating plaintiff’s damages, they should consider, among other things, to what extent she had been injured or marred in her personal appearance, and to what extent, if any, she may have endured physical and mental suffering as a natural and inevitable result of such injuries, also any necessary expenses she may have been to, or may hereafter become liable to pay in or about caring for and curing herself, is proper,</p> <p>2. Same—Effect of Injuries upon Ability to Perform Ordinary Labor.—An instruction authorizing the jury to consider what effect such injuries might have upon plaintiff in the future in respect to ability to perform ordinary work, is proper. The loss of her ability to do work is a personal injury to her which may affect her in many ways peculiar to herself.</p>

Action on the Case, for damages done by diverting a watercourse. Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge presiding. Heard in this court at the April term, 1902.

Action on the Case, for personal injury. Appeal from the Circuit Court of Kane County: the Hon. Charles A. Bishop, Judge presiding. Heard in this court at the April term, 1902.

Action on the Case, for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the April term, 1902.

Action on the Case, for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the April term, 1902.

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Knox County; the Hon. John A. Gray, Judge presiding. Heard in this court at the April term, 1902..

<p>1. Contracts—Private Oral Statements Merged in Written Contract.—Where a contract is in writing and there is nothing ambiguous or uncertain in its terms, evidence of prior conversations limiting meaning of the written contract is inadmissible.</p> <p>3. Bill of Particulars— Restrictive of the Right of Recovery Stated in Declaration.—A bill of particulars is restrictive of the right of recovery stated in a declaration, and it is error to admit proof of a cause of action or damages not therein specified.</p> <p>3. Instructions—Ignoring Plea of Set-off,—It is error to instruct the jury to find their verdict for the plaintiff provided they find certain facts stated in the instruction to exist, thus ignoring a plea of set-off under which the jury might have found for the defendant a larger sum than plaintiff was entitled to under the declaration.</p>

Action on the Case, for personal injuries. Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge presiding. Heard in this court at the April term, 1902.

<p>1. Practice—Recitals in Orders Entered by Cleric Are Extra Judicial.—It is immaterial that the recitals in orders entered by the clerk may show exception to the judgment, and the submission and rulings thereon of propositions of law under the 43d section of the practice act. These are matters that'.can only become a part of the record by-being incorporated in the bill of exceptions and the clerk’s recitals in that respect are, therefore, extra official and of no legal effect.</p>

<p>1. Evidence—Entries in Boohs of Account.—The entries made by a party in books of account kept by him or under his supervision, are competent as admissions.</p> <p>3. Same.—Admissions Against Interest.—It is always competent to prove admissions of a party in interest to his prejudice, where they relate to a matter material to an issue being tried, and that without previously examining him in relation to such admissions.</p> <p>3. Same—Entries in Official’s Boohs.—The entries made by an official in the books of account kept by him as a part of his official duties are competent evidence against him of the receipt of the funds there stated.</p> <p>4. Insolvency—Position of Assignee.—The assignee simply stands in the shoes of the insolvent; he possesses no superior rights. An assignee succeeds to all the rights and obligations of the assignor; what the assignor was obliged to pay can not be denied by him; he acquires no exemption from the obligation of the assignor which the latter did not possess at the time of the assignment. The mere act of assignment does not relieve the assignor from the duty of paying his debts and liabilities, and no more is the assignee relieved thereby.</p>

<p>Bill for an Injunction.—Appeal from the Crcuit Court of Stephenson County; the Hon. James Shaw, Judge presiding. Heard in this court at the April term, 1903.</p>

Assumpsit, for the use and occupation of lands. Appeal from the Circuit Court of Mercer County; the Hon. William H. G-est, Judge presiding. Heard in this court at the April term, 1902.

Assumpsit, for goods sold and delivered. Error to the County Court of Woodford County; the Hon. Thomas Kennedy, Judge presiding. Heard in this court at the April term, 1902.

Action on the Case, for damages caused by raising the grade of a street. Appeal from the Circuit Court of Winnebago County; the Hun. John C. Carver, Judge presiding. Heard in this court at the April term, 1902.

<p>Assumpsit.—Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>1. Injunctions—When Bill Will Lie for Trespass.—Where a trespass has already been committed, and the court can see that it is the purpose of the defendant to commit other deliberate trespasses, which can not be adequately compensated by a judgment at law, or where the damage of such trespass is merely nominal, then a bill for injunction lies; and where the defendant is insolvent, an additional ground of equitable jurisdiction is added by that fact.</p> <p>2. Dedication—Of Public Streets—What is.—The acts of one who lays out lots fronting upon streets which connect with public highways, and rents them to inhabitants of the village, are a dedication of the streets to public use during the time the lots are so rented and occupied.</p>

<p>Trespass, to real property. Appeal from the Circuit Court of Mercer County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1902.</p>

Assumpsit, for money paid by mistake. Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge presiding. Heard in this court at the April term, 1902.

Assumpsit, upon the common counts. Appeal from the Circuit; Court of Peoria County; the Hon. Leslie D. Puterbaugh,, Judge presiding. Heard in this court at the April term, 1902.

<p>1. Equity Jurisdiction—To Restrain Removal of Party from Office. —In this State a court of equity has no jurisdiction to restrain the removal of a party from office, even though such removal may be unjustly or improperly made, or to contest the right of a party to remain in office.</p> <p>2. Same—Subject-matter of.—The subject-matter of the jurisdiction of the court of chancery is civil property. The court is conversant only with questions of property and the maintenance of civil rights, and its jurisdiction is founded upon injury to property, whether actual or prospective. It has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property, nor do matters of a political character come within its jurisdiction.</p> <p>3. Quo Warranto—Proper Remedy Where Officer Has Been Improperly Removed.—Where an officer has not been properly removed, and a successor can not, therefore, be legally appointed, the question can be settled by quo warranto against the person claiming to be his successor in office.</p> <p>4. Mandamus—When the Proper Remedy.—Where the title to the office is not in dispute, mandamus will lie to restore the person entitled to it.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge presiding. Heard in this court at the April term, 1902.

<p>Debt.—Appeal from the Circuit Court of Carroll County; the Hon. James 8. Baume, Judge presiding. Heard in this court at the April term, 1902Í</p>

Assumpsit, to recover price of defective boiler. Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge presiding. Heard in this court at the April term, 1902.

<p>Scire Facias.—Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge presiding. Heard in this court at the April term, 1902.</p>

Action on the Case, for personal injuries. Appeal from the Circuit Court of LaSalle County; the Hon. Harvey M. Trimble, Judge presiding. Heard in this court at the April term, 1902.

<p>Bill for Foreclosure.— Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge presiding. Heard in this court at the April term, 1902.</p>

<p>1." Guaranty—An Original Undertaking.—A written instrument contained the following provision : “I further agree to pay said Marshall Field & Co. all costs, expenses and reasonable attorney’s fees paid or incurred by them, in endeavoring to obtain payment for such goods and merchandise from said W. E. Hart or myself.” Held, that any claim under this guaranty was not due at the commencement of the suit to obtain payment for goods sold and could not be included in such suit, but is collectible in a second suit on the guaranty.</p>

<p>1. Mandamus—Clear Legal Right.—A mandamus should never be awarded except the relator has a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced. It will never be granted in a doubtful case.</p> <p>2. Same—Requisites of Petition.—The petition must set forth every fact necessary to show the duty of the person sought to be coerced to perform the act.</p> <p>3. Same—Defective Petition.—A petition which fails to state that there was no money in the treasury to pay a city warrant at the time it was issued is inadequate to entitle the petitioner to a writ of mandamus compelling the mayor to sign an interest-bearing warrant.</p> <p>4. Municipal Warrants—Rate of Interest Allowed by Statute.—An act of the General Assembly in force July 1,1901, limits the rate of interest on warrants issued by any city or village to five per cent per annum and further provides that such warrants shall not bear interest if there is money in the treasury to pay them when issued, and that in no event shall the warrants bear interest until thirty days after the date of their issue.</p>

Action on the Case, for personal injuries. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge presiding. Heard in this court at the April term, 1902.

Action on the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge presiding. Heard in this court at the April term, 1902.

Action on the Case, for personal injuries. Appeal from the .Circuit Court of Will County; the Hon. John Shall, Judge presiding. Heard in this court at the April term, 1903.

<p>1. Contracts—Matter Omitted from Written Contraéis.—A contract can not be part in writing and part in parol. If there has been some agreement omitted by mistake from the written contract, the only remedy is to secure a reformation of the instrument, and such reformation can not be secured in an action at law.</p>

<p>1. Depositions—In Support of Claims Against Estates.—In taking a deposition in support of a claim filed against an estate, it is not necessary to notify every person who has an ultimate interest in the distribution of the property. It is sufficient to notify the executor and any other person who may have appeared to resist the claim. The executor as to the personal estate represents all parties in interest, unless such other parties in interest have personally appeared.</p> <p>2. Same—Subsequent Parties Bound by Pi'ior Depositions.—One who on his own application is allowed to appear after depositions have been taken, is bound by the depositions already taken, although he is entitled to further cross-examine witnesses whose depositions have been taken, if he apx>lies for that permission.</p> <p>3. Admissions—Of Deceased Persons.—The admissions of a deceased testatrix that she had money belonging to others, and the fact that she enjoined upon her friends to see that they received this money from her estate, are competent to bind her, and to bind those who took under her will, or who would otherwise be entitled to inherit from her.</p>

<p>Appeal from an Order of the Probate Court.—Appeal from the Circuit Court of La Salle County; the Hon Charles Blanchard, Judge presiding. Heard in this court at the April term, 1902.</p>

<p>Trover.—Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge presiding. Heard in this court at the April term, 1903.</p>

Trespass oil the Case, for damages caused by changing the grade of a street. Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge presiding. Heard in this court at the April term, 1903.

<p>Trespass oil the Case.—Personal injuries. Appeal from the Circuit Court of Bock Island County; the Hon. William H. Gest, Judge presiding. Heard in this court at the April term, 1902.</p>

<p>1. Mandamus—Judicial Discretion Not Controlled by.—The exercise of judicial judgment and discretion will not be controlled by mandamus.</p> <p>2. Samb—Change of Venue.—Mandamus will not lie to compel a judge to grant a change of venue.</p> <p>3. Appellate Court Jurisdiction—Constitutionality of Statutes.— The Appellate Court has no jurisdiction to determine the validity or constitutionality of a statute.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of LaSalle County; the Hon. Charles Blanchard, Judge presiding. Heard in this court at the April term, 1903.

<p>Replevin.—Appeal from the Circuit Court of Bureau County; the Hon. Harvey M. Trimble, Judge presiding. Heard in this court at the April term, 1902.</p>

<p>1. Damages—Ira Personal Injury Cases.—The question of damages in personal injury cases is largely a matter for the reasonable discretion of a jury.</p>

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 April term, 1902.

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of LaSalle County; the Hon. Harvey M. Trimble, Judge presiding. Heard in this court at the April term, 1902.</p>

<p>1. Statutes—Repeal of Statute Giving Special Remedy.—Where a statute giving a special remedy is repealed without a saving clause in favor of pending suits, all suits must terminate wherever the repeal finds them.</p> <p>2. Practice—Court Must Decide According to Law in Force When Decision is Made.-—It is the duty of the court to determine the case upon the law in force at the time of the rendition of its decision.</p>

<p>I. Practice—Adjusting Equities Where Both Parties Are Not Parties to the Suit.—In an action at law on a written instrument, the equities between one party to the suit and one who is not a party can not be adjusted, as no accounting can be had between them.</p>

Trespass, for assault and battery. Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge presiding. Heard in this court at the April term, 1902.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the April term, 1902.

<p>1. Trustees—Foreclosure of Mortgage.—One who acts as agent of the mortgagor and receives an assignment of the outstanding certificate of purchase, under a written agreement with him to buy up the same, can not afterward set up that the mortgagor’s title in the land was cut off by foreclosure, and hold the property as his own.</p>

<p>Bill to Foreclose Mortgage.—Appeal from the Circuit Court of Putnam County; the Hon. Leslie D. Putebbaugh, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>Bill for Partition.—Appeal from the CivcuifcCourt of Peoria County: the Hon. Leslie D. Puterbaugh," Judge presiding. Heard in this court at the April term, 1903.</p>

Assumpsit, for a breach of a written contract. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the April term, 1903.

<p>1. Instructions—Where Case Ts Close.—Where the case is a very-close one upon the facts, the instructions given the jury should be clear and explicit.</p> <p>2. Same—Speed of Trains.—An instruction to the effect that the ordinance introduced in evidence is a valid law of the village, and if the jury believe from the evidence in this case that the defendant was, at the time of the injury complained of, running the train that killed deceased within the corporate limits of said village at a rate of speed in excess of that allowed by said ordinance, then the law presumes that the defendant by so doing was guilty of negligence and liable in damages for causing the death of said deceased, is erroneous, as it ignores the question whether the excessive rate of speed contributed to bring about the death of deceased, and also the vital question whether deceased was, at the time, in the exercise of ordinary care for his own safety.</p> <p>3. Same—Burden of Proof.-—An instruction which states to the jury that the burden is upon the plaintiff to prove, by the greater weight of the evidence, not only the negligence of the defendant as charged in the declaration, but also to prove by the greater weight of the evidence that the deceased was free from negligence which contributed to the collision which caused his death, and that if they find from all the evidence in the case that the plaintiff has not so proven both of said facts, then they should find the defendant not guilty, is proper.</p>

<p>1. Mandamus—Duty of Judge as to Bill of Exceptions.—The trial judge is not compelled to sign the bill of exceptions prepared by counsel. It is for him to determine the accuracy of the bill and the matters and things to be incorporated in it; he must sign such a one as he believes to be correct and none other'. If he is unable to remember the testimony, it is his duty to recall the witnesses or income other mode determine the evidence to be incorporated in the bill.</p>

<p>I. Variance—Between,Allegations and Proof.—A declaration which confines plaintiff’s cause of action to injuries received from falling into an excavation is not supported by evidence that the improvement had been completed and that plaintiff had fallen down a flight of steps in the sidewalk.</p>

<p>1. Attachment—Trial of Right of Property.—The statute provides that when personal property is taken on execution or attachment issued by a justice of the peace, and such property is claimed by a person other than the defendant therein, and such claimant shall give notice in writing to the constable, of his claim to such property, the constable shall notify the plaintiff in such writ, or his agent or attorney, of such claim, and shall also notify such plaintiff and the claimant before what justice and at what time and place a trial of the right of such property will be had.</p> <p>2. Same—Where Trial of Right of Property Shall, Be Had.—The trial of the right of property in such cases shall be before the justice of the peace who issued such writ, if he reside in the county, or if he shall be unable to attend such trial, before some other justice of the peace in such county, or before some justice of the peace in the county where the levy was made, in case the writ was issued from another county.</p> <p>3. Same—Mortgagee a Claimant.—The mortgagee is a claimant of the property within the terms of the statute and has an undoubted right to institute this form of proceeding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Kendall County; the Hon. Henry B. Willis, Judge presiding. Heard in this court at the April term, 1903.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. William H. G-est, Judge presiding. Heard in this court at the April term, 1902. Mr. Justice Higbee, dissenting.

Trespass on the Case, for damages caused by constructing and operating a railroad in the street. Appeal from the Circuit Court of White-side County; the Hon. Frank D. Ramsay, Judge presiding. Heard in this court at the April term, 1902.

<p>1. Specific Performance—Relief Rests Within Discretion of Court. —Relief upon an application for a specific performance of a contract rests within the sound legal discretion of a court of equity and will be decreed only in case the contract is certain in all its parts, fair in its provisions, based upon an adequate consideration, and is capable of being performed by mutual enforcement.</p>

<p>Petition for Sale of Real Estate.—Appeal from the Circuit Court of Boone County; the Hon. Charles E. Fuller, Judge presiding. Heard in this court at the April term, 1902.</p>

<p>1. Mortgage—Defendant May Show that it Was Executed to Defraud Creditors.—Upon a bill to foreclose a mortgage the defendants may show that it was executed without consideration for the purpose of defrauding creditors.</p> <p>2. Master—Action Must he Reviewahle hy Court.—It is improper to refer a cause to a master with directions to determine a matter and take final action thereon without further review by the court.</p> <p>3. Same—Course to he Pursued.—It is ordinarily advisable that the master should receive the evidence subject to objections, till the conclusion of the testimony, so that the testimony objected to may be in the record where it can be examined by the court on the hearing of the exceptions, if the court shall be of the opinion that it is competent.</p> <p>4. Same—Authority upon a Reference to Take and Report Proofs with Conclusions of Law and Fact.—Upon a reference, to take and report proofs with conclusions of law and fact, the master has authority to rule upon objections to the testimony offered, though unless it is entirely clear that the evidence is incompetent, the master should permit the testimony to be taken down subject to objection, so that it may be afterward considered without a re-reference if the master’s rulings should be held incorrect.</p> <p>5. Evidence—Of Reputation for Honesty and Integrity.—Where the pleadings did not put one’s reputation or character in issue and no witness had attacked his general reputation in those respects, it is proper to reject evidence of his general reputation.</p>

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

Trespass on the Case, to recover damages to plaintiS’s means of support by reason of the sale of intoxicating liquors to her husband. Appeal from the Circuit Court of DeWitt County; the Hon. William G. Cochran, Judge presiding. Heard in this court at the November term, 1901.

<p>1. Practice—Where Reviewing Court Will Not Disturb Finding of the Chancellor.—Where the evidence is heard by the chancellor a reviewing court will not disturb his finding, except where the record discloses that the finding is clearly and palpably against the evidence.</p> <p>2. Attorney and Client—Burden of Proof as to Equity of Transaction.—In matters of contract between attorney and client the greatest fairness is exacted, and the burden of proof as to the fairness, adequacy and equity of the transaction is upon the attorney; and upon his failure to make such proof, courts of equity will always, at the instance of the client, treat the transaction as one of constructive fraud and set aside the contract.</p>

<p>1. Brokerage Contracts—When Broker is Entitled to Commissions.-—Defendant entered into the following agreement with plaintiffs :</p> <p>“I, E. Gilmore, owner in fee of above property, authorize Bailey & Richmond to bargain and sell the above land at §75 per acre, and agree that I will convey as above, said lands on sale of same. I agree the land shall be left with Bailey & Richmond for sale as above for six months from date hereof, and thereafter until five days of notice of withdrawal in writing. If Bailey & Richmond sell or are instrumental in selling the land, I will pay them a commission of §1 per acre of sell-’ ing price. I will furnish warranty deed and abstract showing good title in case of sale.</p> <p>Dated May 15, 1899.”</p> <p>Held, that under this agreement, when plaintiffs had found a purchaser who was able and willing to take the land at the specified price, they might contract to sell it to him, allow a reasonable time for defendant to furnish the abstract, make the deed, and for the purchaser to examine them in order to ascertain whether he was getting a good title to the land before the sale should be completed, and were not obliged to require a cash payment.</p>

<p>Prosecution Under City Ordinance.—Appeal from the Circuit Court of Macoupin County; the Hon. Bobert B. Shirley, Judge presiding. Heard in this court at the November term, 1901.</p>

<p>1. Statutes—Animals Running at Large.—The statute prohibiting the running at large of animals does not apply to cows in the highway when they are under the care and control of an attendant who actually prevents them from trespassing upon the property of others and from interfering with public travel.</p> <p>2. Same—Meaning of Phrase “Running at Large.”—The phrase “ running at large’’ as used in the statutes means “strolling about without constraint or confinement; as. wandering, roving or rambling at will, unrestrained." (Anderson’s Dictionary of Law.)</p>

<p>1. Contracts—Rule of Construction. —In a controversy as to the meaning of a contract the court will adopt the interpretation which the parties in their dealings together have seen fit to place, upon it.</p> <p>2. Appellate Court Practice—Errors Raised for the First Time in the Appellate Court.—A court of review will not reverse a judgment for an error that could have been corrected by the trial court and which is raised for the first time in the court of review.</p>

<p>1. Principal and Agent—Principal Bound by Agent's Arrangement.—T. rented a refrigerator room for the purpose of storing meat at his own risk. Afterward at plaintiff’s request he stored some of plaintiff’s meat therein without notice to the company of its ownership. Held, that plaintiff was bound by the agreement entered into between T. and the company and deposited his meat at his own risk.</p>

<p>1. Promissory Notes—Burden of Proof Where Defense is Payment. —Where a note is produced from the possession of plaintiff with a credit of twenty dollars indorsed upon it, a prima facie 2‘igbt to recover the balance apparently due upon it is established, and the burden of proving payment by the weight of the evidence is shifted to the defendants.</p>

<p>1. Practice—Where Judgment of Trial Court Will Be Affirmed.— Where, the court instructs the jury liberally, fairly and fully in behalf of the defendant, and the testimony of plaintiff and her witnesses, if believed, is amply sufficient to sustain the conclusion arrived at by the jury, and this court is unable to discover sufficient evidence in that of defendant and his witnesses to justify this court in holding that the verdict is not in accordance with the weight of the evidence, the judgment will be affirmed.</p>

<p>1. Evidence—Firm Account Books—Accounts for Money Lent.—The usual probative force of accounts kept in books in the usual course of dealings between parties as regards transactions of merchandise and the like does not apply to an account for money lent, as that is not usually the subject-matter of an account, notes being usually taken.</p> <p>2. Statute oe Limitations—How Bar is Removed,.—In order to remove the bar of the statute, it is necessary for the jury to find from the evidence that not only had payments been made, but that they had been made upon the identical account sued upon with the intention thereby of recognizing the entire account.</p>

<p>Assumpsit, upon a promissory note. Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge presiding. Heard in this court at the November term, 1901.</p>

<p>1. Appellate Court Practice—Where Court Will Not Hold Finding Against Evidence.—Where the evidence is conflicting-, an appellate court will not hold that the finding is against the evidence and reverse the judgment, for the reason that the trial judge, who saw the parties, and observed their appearance and manner of testifying, could better determine which should be believed.</p> <p>3. Practice—Admission of Further Evidence by the Court After the Talcing of Evidence Has Been Closed.—The admission of further evidence by the. court after the taking of evidence has been closed, the arguments heard and the case submitted, is within the sound- discretion of the trial judge, and in the absence of anything appearing which indicates that defendant was in any manner prejudiced thereby, such admission will not call for a reversal of the judgment.</p>

<p>Prosecution Under City Ordinance.—Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge presiding. Heard in this court at the November term, 1901.</p>

<p>Petition to Sell Land to Pay Debts.—Error to the County Court of McLean. County; the Hon. R. A. Russell, Judge presiding. Heard in this court at the November term, 1901.</p>

<p>1. Statute of Limitations—When it Begins to Run.—The statute of limitations affects only the remedy and does not commence to run until the party to be barred has a right to invoke the aid of the court to enforce his remedy.</p> <p>3. Statutes—Section 13%, Criminal Code— What Purchases of Grain for Future Delivery Come Within Meaning of.— In order to bring- purchases and sales for the future delivery of grain within the meaning of the statute, there must be a mutual intention upon the part of the seller and the buyer that the grain shall not be delivered or received. Such intention may be established, not merely by the assertions of the parties in that particular transaction, but by all the attending circumstances which may include similar transactions made with other persons at the same time and place.</p> <p>3. Statutory Penalties—Right of Defendant to Attack Good Faith of Prosecution to Recover Money Lost at Gambling.—In a suit brought to recover treble the amount of the losses, the defendant should be allowed to prove, if he can, that while the suit is being prosecuted in the name of a third party, it is really and truly the suit of the loser and that he and the plaintiff have conspired together for the purpose of mulcting the defendant into the heavy penalty provided by the stature.</p> <p>4. Same—Proof of Bad Faith of Prosecution Admissible Under the General Issue. —Proof of bad faith of the prosecution under section 133 of the Criminal Code, such action being an action in case, is admissible under the general issue.</p> <p>5. Instructions—Belief of Jury Should be Based upon Evidence.— Instructions to the jury should direct them that their belief upon disputed questions 'of fact should be based upon the evidence, and any instruction which does not contain the element of a finding “ from the evidence ” is vicious.</p> <p>6. Venue— Where Action for Penalties Must be Brought.—A suit to recover treble the amount of money lost by gambling is an action for a penalty and must be brought in the county where the gambling was done and the money lost. It is a real action and not transitory.</p> <p>7. Assignment—Of Funds in Bank by Check.—Where one delivers a check for the payment of money out of funds which he has on deposit subject to check, it is an assignment pro tanto.</p>

<p>1. Practice—Insufficient Affidavit for Continuance.—An affidavit for continuance which fails to state that there were no other witnesses by whom affiant could prove, or so fully prove, the facts which he expected to show by the absent witnesses, is not sufficient to warrant a continuance on account of the absence of such witnesses.</p> <p>2. Same—Incapacity of Lawyer, When No Ground for Continuance. —Where the issues involved are simple, both as to the facts and the law involved, and affiant knows, eighteen days before the date of trial, that the attorney whom he first employed to attend to the case, could not be present to try it, the want of time on his part to obtain other counsel to try the case properly after he discovered that the counsel he first engaged would not be able to be present at the trial, is not a sufficient ground for granting a continuance.</p>

<p>Indictment for Selling1 Intoxicating Liquors Without a License. —Error to the County Court of Schuyler Comity; the Hon. H. V. Teel, Judge presiding. Heard in this court at the November term, 1901.</p>

Bill to Set Aside a Conveyance.—Appeal from the Circuit Court of Douglas County; the Hon. William G. Cochran, Judge presiding. Heard in this court at the November term, 1901.

Trespass on the Case, for excessive levies. 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. Appeals—Lie from Interlocutory Orders Appointing a Receiver. —Whenever an interlocutory order or decree is entered in a suit pending in any court of this state appointing a receiver or granting other or further powers to a receiver already appointed, an appeal may be taken from such order to the Appellate Court of the district wherein the court granting the order is situate.</p> <p>2. Receivers—Appointment of, Ancillary.—The appointment of a receiver is not the ultimate end and object of the suit, but is merely ancillary thereto, and z-ests in the sound discretion of the court; and the Appellate Court will not interfere with the course being pursued by the trial court except where it is clear the justice of the case requires it.</p> <p>3. Same—Not to be Allowed to Commence Important Suits Without Specific Authority.—A receiver ought not to be allowed to commence any important suit without direct and specific authority from the court.</p>

Action on the Case, for damages caused by collision with locomotive. Appeal from the Circuit Court of Monroe County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the February term, 1902.

<p>1. Pleadings—How Oonstmed.—It is the duty of the court to construe the pleadings most strongly against the pleader.</p>

<p>1. Partnership—Defined.—A partnership has been defined to be “The contract relation subsisting between persons who have combined then- property, labor or skill, in an enterprise or business as principals for joint profit." 1 Bates on Partnership, Sec. 1.</p> <p>2. Same—Goods Sold in Name of One Party.—The fact that one party sold the goods in his own name, together with the inference that the proceeds were transmitted to him in his own name, does not necessarily rebut the idea of a partnership, because if a partnership exists, the fact that one partner by contract with his copartner is to have the control of the product for sale, will not prevent it being such.</p>

<p>Assumpsit, on a paving contract. Appeal from the Circuit Court of Madison County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the February term, 1902.</p>

Bill to Foreclose a Trust Deed.—Appeal from the Circuit Court of Jefferson County; the Hon. Edmund D. Youngblood, Judge presiding. Heard in this court at the February term, 1902. On the 14th clay of .November, 1893, appellee John P. Jones and Gomer D. Jones, his son, executed their promissory note to appellant, Jonathan B. LeValley, for $1,600, payable one year after its date, with interest at six per cent.

<p>1. Statute of Limitations—Payments by Joint Maher Without Co-Maker's Knowledge.—Payment by one joint maker of a note does not bar the running of the statute as to his co-maker, when made without the knowledge, consent or subsequent ratification of the other.</p> <p>2. Same—When Payment by Joint Maker Bars Running of the Statute as Against His Co-Maher.—When payments are made from time to time by one joint debtor, with the knowledge, consent or subsequent ratification of the other, the running of the statute is arrested as to both joint debtors.</p>

<p>1. Evidence—Must Not Be Too Remote or Conjectural.—The law requires an open and visible connection between the principal and evidentiary facts, and the deductions from them, and does not permit a decision to be made on remote inferences.</p>

<p>Information in the Nature of Quo Warranto. —Appeal from the Circuit Court of Jefferson County; the Hon. Edmund D. Youngblood, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>Assumpsit, upon a promissory note. Appeal from the County Court of Madison County; the Hon. W. P. Early, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>1. Practice— Where the Evidence is Conflicting.—Where the evidence is conflicting a verdict returned by a jury, if responsive to the issues involved, ought not to be set aside by a trial court and will not be disturbed by an appellate or supreme court, unless some error or improper condition or conduct calculated to mislead the jury appears in connection with the trial.</p>

<p>1. Mandamus—Petition Must Show Clear Right.—A petition for mandamus must show on its face a clear right to the relief asked. It must distinctly set forth all the material-facts relied upon, so that the same may be admitted or traversed.</p> <p>3. Same—What Petitioner Must Show.—Two rules in regard to the issuance of a writ of mandamus are well settled: First, the party applying for it must show a clear legal right to have the thing done which is asked for; second, it must be the clear legal duty of the party sought to be coerced, to do the thing he is called upon to do.</p>

<p>1. Contracts—Prior or Contemporaneous Agreements. —Any promise or agreement concerning the terms and conditions of a contract made prior to or contemporaneously with the reducing of such contract to writing is merged in the writing.</p>

<p>Assumpsit, for broker’s commissions. Appeal from the Circuit Court of Jefferson County; the Hon. Edmund D. Youngblood, Judge presiding. Heard in this court at the February term, 1903.</p>

Trespass on tine Case, for personal injuries. Appeal from the Circuit Court of Williamson County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in this court at the February term, 1902.

<p>1. Statute of Frauds— Verbal Contract for Sale of Land.—Where a verbal contract for tlie sale of land has been executed on one side, by the purchaser receiving a deed for the premises, the statute of frauds has no application, and the vendor may recover for the unpaid purchase money.</p>

<p>Bill to Enjoin Application for and Issuance of a Tax Deed.— Appeal from the Circuit Court of Madison County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the February term, 1902.</p>

<p>1. Instructions—Stating Weight to he Given to Testimony of Witnesses.—An instruction in a bastardy proceeding which states that the mother of the bastard child is most likely to know who its father is, and when it was begotten, and that whether her testimony is entitled to greater weight depends upon the degree of fidelity with which she adheres to the truth, and that this may be determined from all the evidence in the case, is vicious and misleading. The jury should be left free to determine what is the proper weight to be given to the testimony of each witness in each particular case.</p>

<p>1. Master and Servant—When Knowledge of Defects in Machinery Will Not Preclude Servant from Bringing Action.—A servant can recover for an injury suffered from defects due to the master’s fault, of which he had notice, if under all the circumstances, a servant of ordinary prudence, acting with such prudence, would, under similar conditions, have continued the same work under the same risk, but not otherwise. All the circumstances must be taken into account, and not merely the isolated fact of risk.</p> <p>3. Same—Neglect of Servant a Question of Fact.—Negligence on the part of the servant, in such cases, does not necessarily arise from his knowledge of the defect, but is a question of fact to be determined from such knowledge and other circumstances in evidence.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge presiding. Heard in this court at the February term, 1903.</p> <p>Statement.—Appellee brought this action on the case against appellant, to recover of it, damages, for negligently causing the death of appellee’s intestate. The case was tried by a jury, who returned a verdict for the plaintiff below for the sum of §5,000, on which the court rendered judgment, after overruling a motion by appellant for a new trial, and also a motion by it to arrest the judgment, to each of which rulings defendant excepted and has brought this appeal.</p> <p>The substantive facts of the case are : William A. Wing, the deceased,was a freight conductor on appellant’s railroad, and resided at Sparta, in Randolph county, about forty miles southeasterly from East St. Louis. The end of his run,where he took his train and to which he brought it, was East St. Louis.</p> <p>In the early evening of Saturday, January 11, 1901, after he had brought his train into E^SSt St. Louis, at the end of his run for that day, he desired to be relieved and go to his home, and it being the custom the railroad company to furnish its employes free transportation in such cases, he applied to the telegraph operator at East St. Louis, to get him a telegraphic pass to Coulterviile, a short distance from Sparta. The dispatch for a pass had to go to the trainmaster’s office at Carbondale, and on account of a change of operators at East St. Louis in the evening, the pass did not get into the hands of deceased until 8:58 p. m. It directed the conductor of train Ho. 203, to “ carry conductor Wing, East St. Louis to Carbondale, and get regular transportation at my office,” and was properly signed. Train Ho. 203 was a regular passenger train which left the relay station at 9:04 p. m., but for some unexplained reason, Wing did not take it, but instead he went to the conductor of freight train Ho. 255, which was scheduled to leave East St. Louis for Carbondale at 10 o’clock p. m., and which was not allowed by the rules of the road to carry him, except by special permission of the division superintendent. He told the conductor that he had transportation to ride on his train to Coulterville. The conductor told him to go to the caboose and “ make himself comfortable,” and he would wake him up at Coulterville.</p> <p>After the train was ready to start, the conductor went to the caboose and found the deceased asleep. He continued to sleep until the train reached Belleville at 3:20 a. m., January 12th. The conductor did not ask him for his transportation, as he did not desire to disturb him. The train was a long, heavy one, and the conductor and engineer knew before leaving East St. Louis, that an extra freight train was to leave that city and follow Ho. 255, at 2:30 of the morning of the 12th. Train Ho. 255 was compelled to double the hill between East St. Louis and Belle-ville, and on account of the delay, the water in the engine was exhausted and the engineer was compelled to leave his train before arriving at Belleville and go there for water. Two or three minutes before the train stopped at Belle-ville depot, the conductor, who was riding in the caboose with one W. E. Ring, his rear brakeman, and deceased, informed the brakeman of the 2:30 train that was to follow them and directed him to keep his “ eyes open,” and the conductor then went forward, on the top of the train. As soon as the train stopped the conductor and engineer went into the office to get orders and sign the register. After they received their orders and were in the act of starting, at 3:40 a. m., their train was run into by the extra train, and brakeman Ring and conductor Wing were instantly killed. The extra train was long and heavy, and drawn by two engines.</p> <p>When the extra train reached the crown of the bill, about three hundred feet from the city limits, it was running at the rate of about thirty miles per hour. As soon as it started down grade the engineer in charge of the front engine, and who had control of the train, applied the air brakes and continued to make such applications until the engine reached Centre ville avenue, about fifteen or sixteen hundred feet from train 255, when the engineer discovered that there was a train standing on the track. The train was then running at the rate of about twenty miles per hour; he immediate^ reversed his engine, continued to apply the air brakes and whistled for the hand brakes to be applied. The conductor in charge of the train at once applied the hand brakes. They were, however, unable to prevent a collision. The train was running at the ■ rate of fifteen miles an hour when the collision occurred. The grade from Centre ville avenue to the depot was about one per cent. On account of a curve in the track a train coming from the northwest can not see a train standing at the depot until it reaches Centre ville avenue. The rules of the company provide that when a train is detained at a station for more than ten minutes, where the rear of the train can not be plainly seen from a train moving in the same direction for a distance of one-half mile, a flagman must go back a distance of 3,600 feet and protect the train.</p> <p>Rule B 8 provides, “ Second and inferior class trains must run carefully through the yard limits at Belleville, expecting to find main track occupied. In case of accident, the responsibility rests with the approaching train.” Extra trains are of inferior class.</p> <p>The ordinances of the city of Belleville provide that freight trains shall not be run through the city at a greater rate of speed than six miles per hour.</p> <p>Train Ho. 255 did not flag the extra train. The usual running time of freight trains from East St. Louis to Belle-ville is one hour. The city of Belleville contains 20,000 inhabitants. It is 4,157 feet from the Belleville & Southern depot, where the collision occurred, to the western limits of the city, in the direction of East St. Louis. From these limits to this depot, there is a fall in grade of over thirty-nine feet. At 1,523 feet west of the depot, there is a sharp curve in the road and on account of this curve and the houses adjacent thereto, it is impossible to see a train at the Belleville & Southern depot, until the curve is reached. There is a fall of one foot in each 100 feet, from the curve to the depot. The Belleville & Southern Bail-road is operated by appellant, as a part of its system.</p>

<p>1. Res Ipsa Loquitur—Requisites of Proof Where Buie Applies.— Before the plaintiff can recover in a case where the rule res ipsa lotjuitur applies, he is required to prove some affirmative act or acts of negligence, by defendant, that was the proximate cause of the injury, or to prove that defendant had omitted to perform some duty that the law required of him, which omission was the proximate cause of the injury; until he has done that, defendant is under no obligation to prove anything.</p> <p>3. Railroads—Not Insurers of Employes— Railroad companies are not insurers of the lives and limbs of their employes while in their service any more than private individuals are, A brakeman of a railroad company assumes the risks and dangers incident to the business in which he is engaged, and while the company is bound to furnish suitable and safe machinery and appliances for his use, when this is done it is not responsible for an injury resulting from the breaking or failure of the machinery, unless it is shown that it has in some way or manner been guilty of negligence in regard thereto.</p> <p>3. Master and Servant—Knowledge of Defects in Machinery Must be Brought Home to Master.—If' injury arises from a defect or insufficiency in the machinery or implements furnished to the servant by the master, knowledge of the defect or insufficiency must be brought home to the master or proof given that he was ignorant of the same through his own negligence or want of care, or, in other words, it must be shown that he either knew or ought to have known of the defects which caused the injury.</p>

<p>1. Instructions—Real Estate Brokers' Commissions.—An instruction which states that if the defendants employed the plaintiffs as their agents to negotiate the sale of the defendants’ lands, and the plaintiffs undertook such employment, and were instrumental in bringing together the buyer and the defendants, then and in that case the plaintiffs are entitled, as a matter of law, to recover from defendants compensation for their services regardless of the fact that the defendants concluded the sale, is correct.</p>

Trespass on the base, for personal injuries, Appeal from the Circuit Court of Marion County; the Hon. Truman E. Ames, Judge presiding. Heard in this court at the February term,' 1902. Suit by appellee to recover for personal injuries received while superintending the operation of the electric light plant of appellant, the injuries caused by the breaking of a belt running from the drive wheel of the engine to the pulley on the dynamo.

<p>Bill for an Injunction.—Error to the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge presiding. Heard in this court at the February term, 1902.</p> <p>George A. Boyne, John J. Ard, Thomas Feet and Moritz Ochler, as complainants, presented their bill of complaint, praying that a temporary injunction be granted against the defendants, restraining them from maintaining an office or in any manner exercising jurisdiction as justices of the peace within the town and city of East St. Louis, St. Clair county.</p> <p>A temporary injunction was issued, which, upon hearing of the case, was made perpetual, as shown by'the following extract from the decree:</p> <p>“ It is therefore ordered, adjudged and decreed by the court that the temporary injunction heretofore granted by this court on the 15th day of May, A. D. 1899, against the defendants H. H. Deemar, Philip Traband, James H. Wyatt and Andrew Touchette, restraining and enjoining each of the above named defendants from exercising any jurisdiction within or maintaining an office of a justice of the Íeace or police magistrate within the city of East St. Louis, llinois, be and the same is hereby made perpetual. And the said defendants, H. H. Deemar, Philip Traband, James H. Wyatt and Andrew Touchette are each and all perpetually restrained and enjoined from exercising any jurisdiction within or maintaining an office within the town and city of East St. Louis, Illinois, and the said defendants are each and all perpetually enjoined from in any manner exercising the jurisdiction and duties of the justice of the peace or police magistrate within the said town and city of East St. Louis, Illinois.”</p> <p>To reverse this judgment and dissolve the injunction, defendants.Deemar and Wyatt prosecute this writ of error. Traband and Touchette failed to answer, and the bill was taken as confessed against them, no evidence being heard in support of the allegations against them. Wyatt and Deemar demurred to the bill as follows:</p> <p>“ These defendants demur to said bill, and for cause of demurrer show that the complainants have not, in and by their said bill, made or stated such a case as entitles them in a court of equity to any discovery or relief from or against these defendants touching the matters contained in the said bill or any pf such matters.</p> <p>And for a further cause of demurrer these defendants show that the complainants have not, as appears by their said bill, made out any title to the relief thereby prayed, or any relief whatever, from these defendants.</p> <p>That there is no joint cause for relief stated in the said bill of complaint in favor of the complainants.”</p> <p>The demurrer was overruled and separate answers tiled, deriving, in substance, the allegations of the bill. The answers also “assert and insist that the complainants have not shown a cause of action, or any right to ask or have an injunction against defendants.”</p> <p>The bill alleges that complainants and John Driscoll and Patrick Kane are the only resident and elected justices of the peace in the town and city of East St. Louis; that although defendants are not residents and were not elected justices of the peace in and for said town and city of East St. Louis, yet they maintain offices, try cases, and assume to act as justices of the peace in said town and city; that this tends to confusion in appeals and to corruption in the administration of the law, and that complainants are entitled to the fees and emoluments of the offices of justices of the peace in said city and town.</p>

<p>Bill of Interpleader.—Appeal from, the Circuit Court of Madison County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the February term, 1902.</p>

<p>1. Master and Servant— What Risks Servant Assumes—The rule that the servant assumes the ordinary risks incident to the business, presupposes that the master has performed the duties of caution, care and vigilance which the law casts upon him. It is those risks alone that can not be obviated by the adoption of reasonable measures of precaution that the servant assumes.</p> <p>2. Same—What Risks the Servant Does Not Assume.—The law is that the servant does not assume risks that are unreasonable, or extraordinary, nor risks that are extrinsic to the employment, nor risks of the master’s own negligence. The master’s own duty to the servant is always to be performed. The neglect of that duty is not a peril which the servant assumes.</p> <p>3. Same— Whether Risks Are Assumed by Servant is a Question of Fact.—Whether the risks, in any particular case, are the ordinary risks which the servant assumes, is a question of fact to be determined by the jury from the evidence in the case, under the instructions of the court. •</p> <p>4. Same—Duty to Furnish Reasonably Safe Place to Work is a Continuing Duty.—It is the duty of the master, in the first instance, to furnish the servant a reasonably safe place to work; and it is a continuing duty, which is not discharged if the master, by subsequent negligence, makes such place unsafe.</p> <p>5. Same—Independent Contractors.— The master is not liable for injuries caused to a servant through the negligence of an independent contractor.</p> <p>6. Common Carrier—Defined.—A common carrier is one who plies between certain termini, and openly professes to carry goods for all such persons as choose to employ him.</p>

<p>1. Instructions—Duty of Broker in Selling Commodities. —The court gave the following instruction asked for by plaintiff, modifying it by adding the words in italics: “The court instructs the jury that if you believe from the evidence that plaintiffs refused to accept the flour shipped to them by defendant, or any part thereof, and that defendant consented to such refusal and ordered plaintiffs to sell the same or any part thereof for its account, and that plaintiffs did so sell said flour after reasonable and diligent effort, at the highest price for said flour at the time of said sales, then you will find for the plaintiffs in an amount equal to the difference between the amount advanced by plaintiffs on account of the draft against rejected flour and the net amount you find was realized by plaintiffs from the sale of such flour for the account of the defendant.” Held, that the court erred in modifying the instruction. The contract was that plaintiffs should sell the flour “for the highest obtainable price. ” This contract imposed no greater duty or burden than the law imposes in the ordinary case between a commission broker and his customer. The broker must exercise reasonable and diligent effort, and when he has done that, he has done all the law requires, and if plaintiffs did that in this case, they have done all that their contract requires. It means, the highest price obtainable by reasonable and diligent effort; that and no more.</p>

<p>Forcible Entry and Detainer.—Error to the County Court of St. Clair County; the Hon. William Hartzbll, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>Debt, for recovery of penalties. Appeal from the Circuit Court of Madison County: the Hon. William Hartzell, Judge presiding. Heard in this court at the February term, 1902.</p>

<p>Action on the Case.—Damages caused by the overflow of water upon land. Error to the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>Mechanic’s Lien Proceedings.—Appeal from the Circuit Court of Madison County; the Hon. William Hartzell, Judge presiding. Heard in this court at the February term, 1903.</p>

Action on tiie Case.—Error to the Circuit Court of St. Clair County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1902.

<p>Assumpsit.—Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge presiding. Heard in this court at the February term, 1902.</p>

<p>Assumpsit, on a written contract. Appeal from the Circuit Court of Williamson County; the Hon. Joseph P. Robarts, Judge presiding. Heard in this court at the February term, 1902.</p>

Bill in Chancery, in the nature of a bill to contest the validity of a will. Error to the Circuit Court of Randolph County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the February term, 1902.

<p>Assumpsit, on a life insurance policy. Appeal from the Circuit Court of Crawford County; the Hon. Enoch E. Newlin, Judge presiding. Heard in this court at the February term, 1902.</p>

<p>1. Construction of Statutes—Chapter 73, Paragraph 37, See. 1, Hurd’s'R. S.—Chapter 73, paragraph 37, section 1, Hurd’s R. S., prolnuits any life insurance company, or association organized under the laws of this state, or doing business within the limits of the same, from permitting any distinction, or discrimination between insurants of the same class and equal expectation of life, in its established rates, nor in the charging, collecting, demanding or receiving of the amount of premium for insurance of the same class and equal expectation of life; nor in the return ratably of the premium, dividends or other benefits accruing, or that accrue, to such insurants as aforesaid; nor in the terms and condition of the contract between any such company and the insurants; and provides that if any such insurance company or association, its agent or agents, as aforesaid, shall make any unjust discrimination, the same shall be deemed guilty of having violated the provisions of this act, and upon conviction thereof, shall, together with the agent or agents so unlawfully transacting its business, jointly and severally, be subject to a penalty of not less than $500, or not more than $1,000. Held, that the statute not only makes both corporation and agent liable, but expressly declares that the insurance company shall, together with the agent so unlawfully transacting said business, jointly and severally, be liable.</p> <p>3. Master and Servant—Master Liable for Acts of Servant Within Scope of His Duty.—While the servant is acting within the scope of his authority the master is liable for his acts, not only those which are merely careless or negligent, but also his willful and malicious acts.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Jasper County; the Hon. Samuel L. Dwight, Judge presiding. Heard in this court at the August term, 1902.

<p>Assumpsit.—Error to the Circuit Court of White County; the .Hon. Enoch E. Newlin, Judge presiding. Heard in this court at the August term, 1903.</p>

<p>Assumpsit.—Appeal from the City Court of East St. Louis; the Hon. Paul McWilliams, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>L Insurance—Application a Part of the Contract.— Where an applicant for insurance signs two papers for the purpose of procuring a policy of insurance, and thereupon the policy is executed and delivered to him, the three papers, all considered and construed together, constitute the contract.</p> <p>2. Words and Phrases—Mining Defined.—Mining is defined to be, “The act or business of making mines or of working them.” Webster’s International Dicionary.</p>

<p>1. Practice—Demurrer to Declaration Containing One Good Count. —A general demurrer can not be sustained to a declaration which contains one good count.</p> <p>2. Same—Where the Record Will Not Support a Judgment on the Merits of the Case.—Where the trial court has sustained a demurrer to the whole declaration, containing one good count, the court can not pass on the merits of the case. The errors assigned constitute the pleading in this court, and limit the scope of the appeal, and a judgment upon the merits would bind neither the parties to the suit nor the trial court.</p>

<p>1. Appellate Court Practice—Rule 2,9.—Where the defendant in error fails to file his bjrief in compliance with the. rules of this court, the decree of the Circuit Court will be reversed and the bill of defendant in error dismissed proforma, under rule 39.</p>

<p>Garnishment.—Error to the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

Claim in Probate.—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901. Eleanor 0. Hall having filed her claim in the Probate Court of Cook County against the estate of Elizabeth C. Hale, the same being disputed, was, December 14, 1899, allowed to the extent of $550. From such order of all ow anee she appealed to the Circuit Court.

<p>Assumpsit, upon a benefit certificate. Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>1. Words and Phrases—Abuse Defined.—Abuse implies irregular and improper use, not merely regular and proper use with a bad motive.</p> <p>2. Malicious Prosecution—Requisites of Declaration.—In an action for the malicious prosecution of civil suits, the declaration must show that the suit complained of has been brought to an end the same as in case of the malicious prosecution of a criminal proceeding, and for the same reason, viz., that the party might recover in his action for malicious prosecution and yet be guilty of, and afterward be convicted of, the original charge.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p> <p>Appellant sued to recover for personal injuries received from a fall on a sidewalk. The cause was submitted upon the plaintiff’s evidence. The jury returned a verdict finding appellee not guilty, and from the judgment entered in accordance with the finding this appeal is prosecuted.</p> <p>The accident occurred in the forenoon of December 12, 1898, upon the sidewalk extending along the south front of the city hall and county building on Washington street, Chicago. There was a drinking fountain used to water horses at the edge of the sidewalk not far from the south entrance to the city hall. Evidence was introduced tending to show that at the time of the accident the weather was severely cold, and that there was a thin coating of ice on that part of the sidewalk, and extending from three to five feet from the edge of the walk, caused, it is said, bv the overflow of water. The fountain was not running at the time of the accident. Appellant states that she did not see the ice upon which she says she slipped and fell, there being, it is said, a light “ flurry” of snow, which served to conceal it. The snow was not, however, thick enough in some places to cover the sidewalk. The entire fall of snow that day, according to testimony from the weather bureau, amounted to only eight-tenths of an inch. One of the flagstones of' which that part of the sidewalk was composed, was broken longitudinally in the center, forming a slight depression extending east and west along the walk three or four feet from the fountain. In this depression there was ice two or three inches deep, forming a level surface. The sidewalk at that point was at least sixteen feet wide.</p>

<p>1. Assignment of Wages—When Valid.—An assignment of wages to be earned under an existing- employment by a private person is valid and enforcihle if made in good faith and for a valuable consideration.</p> <p>2. Bankruptcy—Effect of Discharge upon Debt.—A discharge in bankruptcy is analogous in its effect to the statute, of limitations;.it neither pays nor discharges the debt, but suspends the right of action thereon. Valid liens are not by it removed.</p> <p>3. Interest—By Contract in Illinois.—la this state it is lawful to contract for interest at the rate of seven per cent per annum; a contract for more is not only usurious but deprives the lender of all interest.</p> <p>4. Same—When a Court of Equity Will Relieve Against Usurious Interest.—.Although the statute may ha ve made usurious loans and obligations absolutely void, yet if a borrower brings a suit in equity for the purpose of having a usurious bond or other security surrendered and canceled, the relief Will be granted by a court of equity only upon condition that the complainant does equity by repaying to his creditor that which is justly and in good faith due, that is, the amount actually advanced, with lawful interest, unless the statute expressly prohibits the court from imposing such terms as a condition of relief.</p> <p>5. Equity—Party Seelcing Equity Must Do Equity.—A court. of equity will not confer its equitable relief upon a party seeking its aid, unless he will acknowledge and concede all the equitable rights and dividends justly belonging to the adversary party growing out of or necessarily involved in the subject-matter of the controversy.</p>

Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901. This is an appeal from a decree perpetually enjoining appellant from advertising, announcing, producing or performing a play entitled “ Sherlock Holmes, the Detective,” under the trade-mark “ Sherlock Holmes ” or from in any manner using the same.

<p>JTandainns.—Error to the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>Assumpsit.—Appeal from tho Circuit Court of Cook County; the Hon. Ebbridge Hanecy, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p> <p>Appellee, December 31, 1898, filed his petition in bankruptcy and was duly adjudged a bankrupt; he was not discharged until June 12, 1899. While thus a bankrupt, he, March 9, 1899, commenced suit before a justice of the peace in Cook county, against appellant. Having, April 13,1899, before such justice, obtained therein a judgment for $200 against appellant, the latter took an appeal to the Circuit Court. November 8,1899, by order of Judge Hanecy, this cause was placed at the foot of the docket to be called upon Judge Hanecy’s next special calendar.</p> <p>Appellant’s attorneys, thereafter, kept watch as to such special calendar, but it was not called. May 24, 1901, Judge Haneov was calling another calendar upon which this case, unknown to appellant’s attorneys, was, and this cause was on said day, in the absence, and without notice or knowledge by them, called by Judge Hanecy and the appeal taken by appellant was dismissed.</p> <p>Appellant’s attorneys first learned of such dismissal June 1, 1901, and at once gave notice and moved to set aside the order of dismissal. Upon the hearing of this motion the foregoing was made to appear and also that in said bankruptcy proceedings of appellee no permission to him to prosecute this suit against appellant was given nor was the claim of appellee upon which this suit is based scheduled.</p> <p>The court, the term at which said dismissal was had having passed, refused to set aside the said judgment dismissing appellant’s appeal.</p>

Attachment.—Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901. Appellee brought this action to recover the price of coal furnished for the steamer “ Puritan.” It is claimed by appellants that the steamer was owned and operated by a corporation known as the “ Seymour Transportation Company,” claiming to be organized and existing under the laws of Illinois.

Trespass on the Case, upon promises. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson. Judge presiding. Heard in the Branch Appellate Court at the October term, 1901. Statement.—This is an action by the Illinois Car & Equipment Company, dealers in iron, for merchandise sold and delivered to appellant, to the amount of $2,636.79. A plea of the general issue,withdrawn before the trial, and pleas of set-off, were filed.

Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901. August 31,1896, the Telluride Power Transmission Company made a contract with one T. B. Rhodes for the erection of a pipe line and flume. Rhodes applied to the Crane Company for pipe therefor, and after various negotiations gave to it the following order: “ Salt Lake City, September 14, 1896. Crane Company, Chicago.

<p>1. Injunctions—TVhat the Bill Should Contain.—A bill for an injunction should contain a prayer therefor in the prayer for process as well as in the prayer for relief.</p> <p>2. Same—To Enjoin Judgment—Sec. 8. Chap. 69, R. S.—Section 8 of chapter 69 of the Revised Statutes, provides that before an injunction shall issue to enjoin a judgment, the complainant shall give bond to the plaintiff therein, in double the amount of such judgment, with sufficient surety approved by the court, judge or master, conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved.</p>

<p>Trespass on the Case, for personal injuries. 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>Mr. Justice Ball dissenting.</p> <p>Action for personal injuries.</p> <p>The declaration, consisting of but one count, alleges that the defendant was operating the Lake Street Elevated Railroad; that September 27,1898, plaintiff became a passenger upon one of its trains to be carried from Wabash avenue to Sacramento avenue; that she took a seat in the rear car of that train; that “ it became and was the duty of the defendant upon the arrival of said train at the Sacramento avenue station aforesaid, a station on the line of defendant’s road, to give the plaintiff an opportunity of safely alighting therefrom, and then and there to stop said train a reasonable time to enable the plaintiff so to alight therefrom safely as aforesaid, yet the defendant did not regard its duty or use due care in that behalf, but on the contrary thereof, upon the arrival of said train at Sacramento avenue station aforesaid, and while the plaintiff with all due care and diligence was then and there about to alight therefrom, the defendant carelessly and negligently caused'the said train of cars to be suddenly and violently started and moved, and thereby the plaintiff was thrown with great force from and off said train to and upon the wooden platform of said station,” etc.</p> <p>When the train stopped at Sacramento avenue appellee passed out upon the front platform of the rear car for the purpose of leaving the train. Just in front of her were two men, Mr. Walker and Mr. Sylvester, also passengers, in the act of alighting. They left the car and she immediately followed. Before she stepped off, the train had started up. She says that as she raised her foot to step off, the cars gave a sudden lurch, and the next thing she knew she was flat on the platform. Mr. Walker says that the conductor rang the bell to start and the car started just as he was about to step off the car, and that when appellee got off the car was moving. Mr. Sylvester, who followed Mr. Walker, says as he stepped off he felt the train moving, and looking back he saw appellee as she was stepping off the car onto the platform, and that when he turned around the train was moving faster than it was when he alighted. Mr. Dierkes, who was on the station platform for the purpose of boarding the train, says that he jumped on the rear platform of the second car; that the car liad started before he jumped, and that as he jumped appellee stepped off the front platform of the third car when the car was in motion; that she was not thrown off,, but stepped off. The rear guard says that he noticed that the train was moving when a gentleman stepped off the car; that appellee was following him, and that she stepped off and fell to the station platform.</p> <p>This train of three cars was run by a motorman and two guards. The motorman was in the front part of the front car. Kettlestrings, the front guard, stood on the platform between the first and second cars from the front. Ball, the rear guard, occupied a similar position between the second and third cars. The movement of the train was controlled by the sound of bells, one of which was in the cab of the motorman, and the other was at the rear of the first car where the front guard was stationed. When the train was to be started from a station it was the duty of the rear guard, when his platforms were cleared and he had closed his gates, to ring the bell at the rear of the first car, and then, and not until then, did the front guard ring the bell in the cab of the motorman. It was the duty of the latter upon receiving this signal, and not before, to start the train. In this instance this salutary rule was violated. Before the platforms between the second and third cars were cleared, and before the rear guard had closed his gates or had given the proper signal by ringing his bell, the front guard rang the motorman’s bell and the train started.</p>

Assumpsit, on a lease. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding. Heard in this court at the October term, 1901.