Volume 104 — Illinois Appellate Court Reports

<p>1. Principal and Agent—W7io is Not an Agent.—One who obtains stock lists from several lumber companies, and sends in orders for acceptance or rejection, receiving no salary, expenses or compensation except a commission upon such of his orders as are accepted, is not an agent of such companies, either to sell lumber or to guarantee its quality.</p>

<p>1. Mechanics’ Liens—Sec. 9 of the Act of 1895.—Section 9 of the act of 1895, in regard to mechanics’ liens, provides that such suits shall be commenced or intervening petition filed within two years after final payment is due, according to the terms of the original contract.</p> <p>2. Same—See. 7 of the Act of 1895.—Section 7 of the act of 1895, requiring an itemized account of extras, when such are claimed, goes only to a recovery for the extras, and can not defeat the entire claim. The claim may be amended at any time before trial or on the hearing.</p> <p>3. Same—Hurd’s Rev. Stat. 1885, Chap. S3, Sec. 8.—The third section of the lien law (Hurd’s Rev. Stat. 1885, Chap. 82) provides that when the contract is expressed, no lien shall be created under this act if the time stipulated for the completion of the work or furnishing materials is beyond three years from the commencement thereof, or the time of payment beyond one year from the time stipulated for the completion thereof.</p> <p>4. Same—Time of Payment Expressed in Contract Governs.—The contract itself must, by its terms, provide for a time of payment, which shall not be beyond one year from the completion of the work. The question is not whether the parties do or do not agree, after the execution of the contract, to an extension of the time for the performance. The question is as to the terms of the contract. The lien depends upon the provision which the contract makes as to the time of payment.</p> <p>5. Pleading—General Rule as to the Statute of Limitations.—The general rule is that the statute of limitations must be pleaded, or if the ^pleading is an answer, relied on in the answer. It is at least a doubtful question, whether, under the decisions in this state, the statute of limitations can be availed of on demurrer, especially when the statute is not set up especially as ground of demurrer.</p>

<p>1. Ordinances—Violation is Prima Facie Evidence of Negligence. —The violation of a city ordinance makes aprima facie case of negligence on the part of the person violating it.</p> <p>2. Proximate Cause—Question for the Jury—Whether an act of negligence is the proximate cause of an injury is a question for the jury.</p> <p>3. Contributory Negligence—Of Parents.— The parents of an injured child were working people, the father at his work and the mother engaged in her household duties. The child, with the mother’s consent, went out to play on the public sidewalk with his sister, nine years of age, and was injured by the falling of a pile of lumber. Held, that, considering the position in life of the parents and the consequent demand upon them to provide for their family, the ages of the children, the necessity of their playing somewhere on the summer afternoon, and that they went to play upon the public sidewalk so near to their home, they can not be said to have failed to exercise ordinary care in permitting the younger child to go out to play, as he did, accompanied by his eldest sister.</p> <p>4. Damages—For Death of Young Child—A Question for the Jury. —The fixing of damages for the death of a young child is a matter peculiarly for a jury, and is so declared by the statute.</p>

<p>Bill to Declare Told a "Contract of a Corporation with Promoters. —Appeal from the Superior Court of Cook County; the Hon. Axel Ohytra.tjs, Judge presiding. Heard in this court at the October term, 1901.</p>

<p>1. Practice—Filing Additional Pleas.—The granting of leave to file an additional plea rests in the discretion of the court, and where it is not abused, there is no error.</p> <p>2. Short Cause Galendar-^J/o£íoíi to Strike Cause From. — A motion to strike a case from the short cause calendar comes too late upon the day when the case is called for trial.</p> <p>3. Bills and Notes—Title to Note Deposited for the Purpose of Obtaining a Loan.—Where the party depositing a note has no intention of passing the title to the bailor except upon the condition that the bailor should secure a loan thereon and pay him the proceeds, the title to the note, as to all parties concerned, fails to pass until the loan is secured.</p> <p>4. Revenue Stamps—Unstamped Note as Evidence.—The Superior Court did not err in receiving in evidence a note sued on because there was not affixed thereto sufficient internal revenue stamps.</p>

Trespass on the Case, for personal injuries. 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, for 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.

<p>1. Evidence—Reading from Medical Works.—It is not competent for counsel to produce and read from medical works, much less is it competent to attempt to prove the contents of such books by witnesses testifying solely ¡¡from memory; such evidence is mere hearsay, and incompetent.</p>

<p>1. Corporation—Who Are Promoters.—Those who represent the prospective members of a corporation in the purchase of real estate, secure most of the subscriptions to the capital stock of the corporation, get up the prospectus, and hire others to assist in procuring subscriptions, and participate in the doing of everything that is done in the creation and building up of the business enterprise, are promoters of the corporation.</p> <p>3. Same—Relation Between Promoters and Investors.—The relation created between 'the promoters and investors is one of trust and confidence. The promoters are bound to act in the interest of all investors, to exercise good faith toward those they ask to invest in the enterprise, ■ and not to conceal from .them any fact-materially affecting the value of the property they have for sale.</p> <p>3. Damages—In Case of Fraud by Promoter.—In case of fraud caused by a false subscription list the general measure of damages (excluding cases in which punitive damages are allowed) is compensation. The plaintiff should recover the loss which naturally results from the fraud.</p> <p>4. Evidence— Of Value of Stock, Where There is No Market Value.— If, in ascertaining the value of the stock, no market value, for want of sales, can be established, it is proper for the trial court to admit evidence showing the assets and liabilities of the corporation, as tending to show the real value of the stock.</p>

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

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this court at the October term, 1901.

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

<p>1. Fraud—One Affirming Fraudulent Sale Can Not Afterward Rescind it.—Where a plaintiff knew when he filed his original bill, that a fraud had been practiced upon him, and with that knowledge, he then obtained an injunction against the defendants from selling the stock he had purchased, it is too late afterward for him to rescind such purchase.</p>

<p>1. Insurance—Evidence Insufficient for Recovery.—A policy of insurance contained the following provisions : After three full annual premiums have been paid upon this policy the company will, upon the legal surrender thereof, before default in payment of any premium, or within six months thereafter, issue a non-participating policy for paid-up insurance, payable as herein provided, for the proportion of the amount of this policy which the number of full premiums paid bears to the total number required. Held, that in order to entitle plaintiff to recover damages for a breach of contract, it must appear that there has been a breach by the company, and performance or readiness to perform on the part of plaintiff; and this is not shown by evidence that the plaintiff told the representative of the company that he thought he was, entitled to something for the premiums he had paid, and what he was entitled to he would like to have, and immediately afterward left the office without waiting for a reply.</p>

<p>1. Practice—Where Motion to Instruct Jury to Return Verdict for Defendant is Made at Close of the Evidence.—Where the motion to instruct the jury to return a verdict for the defendant is made at the close of all the evidence, the question to be determined is whether there is evidence tending to sustain plaintiff’s declaration sufficient to support a verdict for the plaintiff.</p> <p>2. Same—Where Motion to Instruct Jury to Return a Verdict for the Defendant Should be Allowed.—A motion to instruct the jury to return a verdict for the defendant having been made at the close of all the evidence, it should be allowed, where the evidence, both for plaintiff and defendant, with all the inferences which the jury might justifiably draw therefrom, is not sufficient to support a verdict for the plaintiff.</p> <p>3. Proximate Cause— Where Breach of Duty is Not.—Where the breach of duty alleged is not the proximate cause of the injury received, there can be no recovery.</p> <p>4. Master and Servant—Assumed Risks of Employment.—As between employer and employe, the latter assumes all the usual known dangers incident to the employment, and he also takes upon himself the hazard of the use of defective tools and machinery, if after his employment, he knows of the defect, but voluntarily continues in the employment without objection.</p>

<p>1. Negligence—Burden upon Plaintiff.—In actions for negligence the burden is upon the plaintiff to allege and to prove such negligent acts of the defendant as will entitle him to recover.</p> <p>2. Fellow-servants—Question of Fact and of Law.—The general rule is that the question as to whether the relation of fellow-servants exists, is one of fact; yet, where the facts are conceded, and where there is no dispute whatever as to the facts, and they show beyond question that the relation of fellow-servants exists, then the question becomes one of law, and it is the duty of the trial judge to instruct the jury to find for the defendant.</p> <p>3. Same—Elevator-man and Janitor.—An elevator-man. running an elevator up and down the shaft to enable a janitor to clean the shaft from the top of the cage, is a fellow-servant of the janitor, who has undertaken the performance of this labor without objection, and has so brought it within the scope of his employment.</p>

<p>1. Res Ad judicata—Extent of Principle.—The principle of res adjudicada embraces not only what actually was determined in the former case, but also extends to any other matter properly involved and which might have been raised and determined in it.</p> <p>2. Estoppel—Former Case upon Different Claim or Demand.— Where there has been a former case between the same parties upon a different claim or demand the judgment in the former action is an “ estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.</p>

<p>Assumpsit, for commissions earned, etc. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in this court at the October term, 1901.</p>

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

<p>1. Contracts—Agreement to Remove Machine Sold, if Not Satisfactory.—An agreement by the seller that in case a machine should prove unsatisfactory for any other cause than those stated in the contract, plaintiff would remove the same from the defendant’s premises, is by itself an undertaking to remove in case, for any reasonable cause, the machine is unsatisfactory.</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>1. Highways—Right of Abutting Owner to Drain Into.—An abutting owner has a right to do what is necessary for the drainage of his land into the road, provided he does not interfere with the use of the highway, rendering it less safe, useful, convenient or excellent as a public thoroughfare.</p> <p>2. Same—Ditches Constituting Obstructions.—If a ditch dug by an abutting owner is an obstruction of the road, then his acts are unlawful.</p> <p>3. Nuisances—Obstruction of Highway by Private Person.—An obstruction by a private person of a public highway is, at common law, not only unlawful, but a nuisance.</p> <p>4. Evidence—Questions as to Merely Evidential Facts.—Questions as to merely evidential facts should not be submitted to a jury.</p> <p>5. Same—As to Degree of Preponderance.—'The court is not required to instruct the jury that certain facts must be clearly shown by a preponderance of the evidence.</p>

<p>Trover.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>Petition for Mechanic’s lien.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</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 the Branch Appellate Court at the October term, 1901.</p>

<p>1. Pleading—Where Proof of Execution of Note Is Not Necessary.— Where defendant neither denied under oath upon the witness stand nor in any answer or pleading by her filed, the execution of an extension agreement or of the notes made in pursuance thereof, it is not necessary to prove their execution on a foreclosure.</p> <p>3. Same—Estoppel by.~ Where a defendant by the filing of a cross-bill sees fit to recognize a party as the proper person for her to proceed against, she can not say, after a decree has been entered upon such cross-bill, that she proceeded against the wrong person.</p> <p>8. Equity—Having Acquired Jurisdiction for One Purpose May Exercise it for All.—Equity having obtained jurisdiction of the parties and the subject-matter for one purpose, it may exercise it to establish all matters at issue, even though in so doing it may grant purely legal remedies.</p>

<p>1. Contracts—To Pay Money on Condition.—By the terms of an instrument under seal executed by plaintiff, defendant and others, defendant entered into a contract with one Olvera for the purchase of about 30,000 acres of land, and afterward they entered into another contract whereby defendant agreed, as trustee, to organize a corporation for the purchase aforesaid and to raise the sum of $15,000 for the purpose of forming such corporation and paying for the land and promoting the business of the corporation. After these provisions, the instrument proceeds as follows: Now, therefore, in consideration of the premises, and of the mutual agreements of the parties hereto, it is mutually understood and agreed that said Oliver, as trustee, shall pay to said Morse, in current money of the United States, out of said money so to be raised by him, the sum of $400, within sixty days from the date of this contract; or in case the title to said land become vested in said corporation, or said Oliver, as trustee, in the manner aforesaid, and for the purposes aforesaid, within less than sixty days, then, in that event, the said Oliver, as trustee, shall thereupon immediately pay to said Morse the said sum of $400. Held, that the payment to plaintiff of $400 was conditional upon the raising by the defendant of the $15,000 and procuring as trustee the title to the 30,000 acres of land.</p>

<p>1. Practice— Ordering Plaintiff to Submit to Physical Examination.—The court has no power to require the injured party to submit to a personal examination against'his will.</p> <p>2. Evidence—Reading Testimony of Witness in Former Case from Bill of Exceptions Compared until Stenographer's Notes Taken at Trial.—Plaintiff’s counsel produced the stenographer who reported the testimony given at a former trial of a witness now said to be insane. He stated that he had compared his notes of the testimony of such witness with the original bill of exceptions filed in that case on appeal, and pointed out minutely wherein the bill of exceptions differed from his notes of her testimony. Plaintiff’s counsel then read from such bill of exceptions the testimony of said witness now alleged to be insane. Held, that no actual error was committed, although its use for such purpose was of doubtful propriety, especially when referred to as a court document, and the practice is not to be commended.</p> <p>3. Same—Witness' Means of Knowledge.—Certain of defendant’s witnesses who were present at or after the accident, and while the passengers on the train at the time of the collision were still there, were asked in one instance whether, if any of the passengers on that eastbound train had been injured the witness would “probably have known' it,” and in another instance whether the witness thought he “would have noticed any person if there had been any one there in distress.” Held, that the court erred in sustaining objections to these questions.</p> <p>4. Same—Efforts of Defendant's Surgeon to Ascertain Who Were Injured.■—A surgeon in the employ of the defendant company who was sent to the scene of the accident, arriving within less than an hour after the collision, was asked if he did or did not make any inquiry among the people there at that time as to whether or not there were any others injured than those he had mentioned, to Which question an objection was sustained. Held, error. It was clearly competent to show what efforts defendant’s surgeon made to ascertain who were injured.</p> <p>5. Same— Part of Conversation Put In Evidence.—When part of a conversation or a statement is put in evidence by one party, the other is entitled to put in the whole so far as it is relevant. ■</p> <p>6. Depositions—When Exceptions Must Be Taken.—An objection that upon a notice to take depositions of witnesses named “and other witnesses,” the testimony of such other witnesses should not have been read to the jury, comes too late when the case has come to trial. It should have been taken by direct application to the court before the case was called for trial and submitted to a jury.</p> <p>7. Remittitur—From Verdict Which is the Result of Passion or Prejudice.—Where a verdict is so flagrantly excessive as to be only accounted for on the grounds of prejudice, passion or misconception, tlie remittitur does not remove the prejudice, passion or misconception. These elements may have entered and probably did enter into the finding of other facts important to the issue, if not to the issue itself.</p>

<p>1. Building and Loan Associations—Act of 1879— The act of 1879, relating to building associations, provided that the money in the treas-ury, if §100 or more, should be offered for loan in open meeting, and the stockholders who should bid the highest premium for the preference or priority of loan should be entitled to receive a loan of §100, less the premium bid for each share of stock held by said stockholders.</p> <p>2. Same—Act of 1879 Amended by Act of 1891.—By the act of the General Assembly, in force July 1, 1891, the act of 1879 was amended in some respects, among others, as follows: Provided, that any such association may, by its by-laws, dispense with the offering of its money for bids in open, and, in lieu thereof, loan its money at a rate of interest and premium fixed by its by-laws, and either with or' without premium, deciding the preference or priority of loans by the priority of the applications for loans of its stockholders.</p> <p>3. Same—Member Who Has Recognized the Validity of Its By-Laws Can Not Be Allowed to Question Collaterally the Method of Their Adoption.—A member of a building association who has for years recognized the validity of its by-laws can not be allowed to question collaterally the method of their adoption, and such member can not resist the payment of his obligations to such association on the ground that the by-laws have not been regularly adopted, where they have, in fact, been entered upon the records of the association, acted on, and enforced.</p> <p>4. Contracts—Estoppel of One Who Has Had the Benefit of.—One who has had the benefit of a contract can not set up as a defense that legal formalities were not complied with.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this cpurt at the October term, 1901.

<p>Garnishment.—Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>1. Practice—Propositions of Law Where a Cause is Tried Without a Jury.—Propositions of law submitted to be held, where a cause is tried without a jury, should state the law only.</p>

<p>1. Trover—Against Warehouseman Who, by Mistake, Delivers Goods to a Wrong Person.—An action of trover lies against a warehouseman who, by mistake; delivers goods to a wrong person.</p>

<p>1. Decrees—Of Sale of Mortgaged Premises Are Final. —A decree of sale of mortgaged premises is final, from which an appeal or writ of error can be prosecuted by the defendant in his lifetime, or by his heirs at law after his death.</p> <p>2. Same—Of Foreclosure—Not Decree for Payment of Money.—The ordinary decree of foreclosure is, as a general rule, declaratory of the mortgage lien, and directs that the amount found due be paid within a given time, or in default thereof, that a sale be made of the mortgaged premises, and it is not a decree for the payment of money within the meaning of the statute.</p> <p>3. Equity—Death of Party to Suit.—The effect in equity of the death of a party to a suit is not to abate the suit, as in the case of an action at law, but merely to suspend further proceedings</p> <p>4. Same—Remedy of Heirs of Deceased Party to Suit.—The proper remedy of the heirs of a deceased party to a suit is by an original bill in the nature of a bill of revivor, and not by petition.</p> <p>5. Construction or Statutes— Chapter 77, Section 39, R. S., Applies Only to Decrees for the Payment of Money.—Chapter 77, Sec. 39, R. S., providing that when a person shall die after the rendition of a decree for the payment of money is obtained in a court of record, sale may be made under such decree without reviving the decree against his heirs or legal representatives, provided that no sale shall be made until after the expiration of twelve months from the death of such deceased person, nor shall any sale be had on any such decree until the person in whose favor the decree is sought to be enforced shall give to the executor or administrator, or if there is neither, to the heirs of the deceased, at least three months’ notice of the existence of such decree before proceeding to sell, only applies to decrees for the payment of money—that is, to personal decrees against defendants for the payment of money.</p>

<p>Bill in Chancery,—Appeal from the Superior Court óf Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>1. Trover—Where It Will Lie.—A, having agreed to build a house for B, contracted with O for materials which were by C delivered on the lot of B, but in no way affixed to the premises; thereafter A and C, by mutual agreement, canceled such contract and A told O to remove- , such materials from said premises. O attempted to do this, but was prevented by B, who took possession of such materials and made them a part of his house. Held, that trover will lie against B for the value of the iftaterials.</p>

<p>Attachment.—Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>1. Practice—Recovery under Special Contract Where Nothing Remains to Be Done but to Pay That Due under the Agreement.— Where, under a special contract, nothing remains to be done but to pay that due under the agreement, a recovery may be had under the common count for work and labor.</p> <p>2. Same— Where Special Contract is at an End.—When a special contract is at an end, either by its terms or by the subsequent consent of the parties, or by the unjustifiable conduct of the defendants, indebitatus assumpsit will lie.</p> <p>3. Instructions—Singling Out the Witnesses of One Party, Are Improper.—An instruction which tells the jury that in passing upon the testimony of the witnesses for the defendant, they have a right to take into consideration any interest which such witness, or any of them, have or feel in the result of this suit, if any is proven, growing out of their relation to the defendant, or otherwise, and to give to the testimony of such witness only such weight as they think it entitled to, under all the circumstances proven on the trial, is improper, as singling out the witnesses of one party.</p>

<p>Bill for a Mechanic’s Lien.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the October term, 1901.</p>

<p>1. Public Improvements—Method of Ascertaining Damages When No Property is Taken.—In the ascertainment of damages to property caused by a public improvement, where none of the property has been taken, the entire improvement made by the city must be considered and not merely a part of it.</p> <p>2. Same—Trite Ride for Ascertaining Effect upon Property.—The true rule for ascertaining the effect, if any, of a public improvement upon private property is by an ascertainment of the difference between the fair cash market value of the property before the construction of the improvement and thereafter. If, by the improvement, it has decreased in value, then it is damaged; but if not so decreased, then it is not damaged.</p>

<p>1. Instructions— Where Evidence is Conflicting.—Where the evidence is conflicting, it is important that the jury should be correctly instructed. °</p> <p>3. Same—Occurrence a Mere Accident.-—An instruction that if the jury believe from the evidence that the whole occurrence was a mere accident, without fault or negligence on the part of the defendant, the verdict should be not guilty, is proper. For a purely accidental occurrence, causing damage without the fault of the person to whom it is attributable, no action will lie; for though there is damage, the thing amiss—the injuria—is wanting.</p> <p>3. Master and Servant—Care of Master in Selecting Servants.— The master will be held in the selection of the servant to the exercise of care reasonably commensurate with the perils and" hazards likely to be encountered in the performance of the duty.</p> <p>4. Same—Servant Knowingly Working with Incompetent Fellow-Servant.—It is negligence for a servant to work six or seven years with a fellow-servant in the habit of becoming intoxicated under circumstances such that he knew or ought to have known his habits, unless he intended to assume the risk.</p>

<p>Assumpsit, upon a promissory note. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge presiding. Heard in the Branch Appellate Court at the October. term, 1901.</p>

<p>1. New Trials—Allowed for Insufficient Damages in Actions for Torts.—At the common law, new trials were not allowed on the sole ground of insufficient damages in actions for torts. As a general rule it will not be done to-day, although it is conceded that where actual damages are shown with such definiteness as to furnish a reasonably certain measure, the court may grant a new trial upon the ground of a manifestly inadequate amount.</p> <p>2. Evidence—Tending to Mitigate Damages.—It is competent in a personal injury suit to introduce in mitigation of damages, evidence tending to show that the injury need not prevent the plaintiff from pursuing many ordinary occupations, and doing fairly well with an artificial limb, most of the ordinary things that are done by men with two sound legs.</p>

<p>1. Ordinances—Courts Do Not Take Judicial Notice of.—Courts do not take judicial notice of city ordinances as they do of the statutes of the state.</p>

<p>1 1. Witnesses—Party Can Not Call One of His Witnesses to Impeach Another.—A party having called a witness and had him testify, can not thereafter introduce what is known as directly impeaching testimony; that is to say, he can not call witnesses to testify that a witness whom he has put upon the stand, and thereby vouched for his general credibility, is unworthy of belief; but he may by other witnesses or other means contradict statements by a witness whom he has put upon the stand. In other words, he is not concluded by the statements of a witness whom he has called.</p>

<p>1. Administration of Estates— Claims Allowed Under See. 67, Ch. 3, S. S.—A contract to pay rent for the whole term is not made conditional by a clause providing that upon certain contingencies the term may be shortened, and it may be presented as a claim for allowance and settlement against an estate under section 67, chapter 3, R. S., entitled “ Administration of Estates.”</p> <p>2. Contracts—Payment of Rent for Whole Term, upon Abandonment of Premises.—A lease provided that if the lessee should abandon or vacate the premises, the same might be relet by the lessor, for such rent and upon such terms as said lessor might see fit, and if a sufficient sum should not be thus realized after paying the expenses of such reletting and collecting to satisfy the rent thereby reserved, the lessee agreed to satisfy and pay all deficiencies. The lessee was placed in the hands of a receiver, who served upon the lessor a written notice, electing not to be bound by the terms of the lease, and renouncing it as an asset of the lessee. Held, that such act constitutes an abandonment of the premises by the lessee as contemplated by the lease, and that such a contract violated no principle of law, and was one which the parties were clearly competent to make.</p>

<p>1. Contracts—Prior Understandings or Agreements Merged in the Written Instrument.—Intention of the parties is not to be determined from previous understandings or agreements, but must be ascertained from the instrument itself, which they execute as their final agreement.</p> <p>2. Partnership—Participation in Profits a Presumption of Law.— There is no absolute rule of law that a participation in the profits renders the participant a partner. It is only a presumption of law which prevails in the absence of controlling circumstances, but is controlled by them.</p> <p>3. Same—Share of Profits as a Measure of Compensation for Services Does Not Create.—Where the sharing in the profits is merely the measure of compensation for services, or for the use of property or money in the business, or by one acting merely as an employe, partnership liability is not thereby created. There must be such a relation between the parties as that each of them is a principal and each an agent for the other.</p>

<p>1. Mortgages—Assignee Takes Subject to All Equities in Favor of the Mortgagor.—The assignee of a mortgage takes it subject to all the equities existing in favor of the mortgagor, and upon a proceeding to foreclose said mortgage, the grantee of the mortgagor may avail himself of all equities existing at the time of the conveyance in favor of the mortgagor.</p> <p>2. Same—Recital in Conveyance that It is Subject to an Incumbrance.—The mere recital in a conveyance that it is subject to a certain incumbrance is not an assumption by the grantee of the payment of such incumbrance.</p>

<p>Distress.—Appeal from the Superior Court of Cook County; the Hon. FaRLIN Q. Ball, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

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

<p>1. Civil Service Act—Has No Application to Holdovers.—The provisions of the civil service act have no application to holdovers, but only to such persons as have been appointed after an examination held in. accordance with the provisions of the act and with the rules of the commission.</p>

<p>Divorce.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytbaus, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

Assumpsit, for goods sold and delivered. Appeal from the Superior Court of Cook County; the Hon. Joseph E, Gary, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.

<p>1. Practice—Nature of Action for Money Sad and Received.—The action for money had and received has been likened to a bill in equity. It may in general be maintained by any legal evidence showing that the defendant has received or obtained possession of money of the plaintiff, which, in equity and good conscience, he ought to pay over to the plaintiff. It is a liberal action, in which the plaintiff waives all tort, trespass and damages, and claims only the money which the defendant has actually received.</p> <p>3. Same—When Action for Money Sad and Received is Maintainable.—An action for money had and received is maintainable whenever the money of one man has, without consideration, got into the pocket of another.</p> <p>3. Landlord and Tenant— Construction of Provision in a Lease Against a Forfeiture of the Rents to be Paid During the Full Term.— The provision in a lease against a forfeiture of the rents to be paid during the full term should not be construed as authorizing the lessor to collect the subsequent rent, both from the lessee named in the lease, and also from the tenant, to whom the lessor may re-let the premises. The provision does not contemplate the collection of double rent; but the rent due from the original lessee is to be credited with such rent as is realized from the re-letting. The lessor is entitled to such sum as shall be" equal to the rents required by the terms of the lease, to be paid during the full term, and not to any greater sum.</p>

<p>1. Debtor and Creditor— Offer to Settle Unliquidated Claim Must be Accepted or Rejected in Toto.—Where a check is sent on condition that if accepted it shall be in full satisfaction of an unliquidated disputed claim, its acceptance involves the acceptance of the condition upon which it was offered, and bars further recovery.</p>

<p>Trespass on the Case, for personal injuries. 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, 1903.</p>

<p>1. Statutes—Sec. 11, Ch. 22, B. S.—Sec. 11, Ch. 33, R. S., providing that “ service of summons shall be made by * * * leaving such copy at defendant’s usual place of abode with some person of the family, of the age of ten years or upwards, and informing such person of the contents thereof,” is not satisfied by leaving it at the defendant’s former X>lace of residence, notwithstanding it is immediately forwarded to her.</p> <p>2. Same—Sec. 8, Ch. 40, B. S.—Sec. 8, Ch. 40, R. S., providing that if the bill is taken as confessed, the court shall proceed to hear the cause by examination of witnesses in open court, and in no case of default shall the court grant a divorce unless the judge is satisfied that the cause of divorce has been fully proved by reliable witnesses, changes the chaneery practice as to the effect of taking a bill as confessed in a case for divorce. It also requires the cause of divorce shall be proved by more than one witness.</p>

<p>1. Practice—Petition for a Change of Venue Must he Preserved hy a Bill of Exceptions.—A petition for a change of venue must, to entitle a party to review of the ruling on it, be preserved by bill of exceptions.</p> <p>2. Same—Sow Affidavits Become a Part of the Record. — Affidavits can only become a part of the record by means of a bill of exceptions.</p> <p>3. Probate Court—Not an Inferior Court.—The Probate Court, although not a court of general, but of limited jurisdiction, is not an inferior court. It has original and complete jurisdiction in probate matters, and while acting within the sphere of its jurisdiction, as liberal intendments will be indulged in its favor as would be extended to the proceedings of a Circuit Court.</p>

<p>1. Equity Jurisdiction—Court May Establish Legal Rights and Grant Legal Remedies.—A court of chancery having obtained jurisdiction by reason of matters of general equity jurisdiction, may retain the case for final determination of all matters at issue arising therefrom, and in its discretion may proceed to establish purely legal rights and grant legal remedies.</p> <p>3. Equity Practice—Where Defendant Submits to Jurisdiction of Court.—A defendant in a chancery suit, who submits to the jurisdiction of the court when the bill shows any ground of equitable jurisdiction, can not for the first time in a court of review, contend that there was an adequate remedy at law.</p> <p>3. Same—Remedy to Enforce Decree for Money.—The same remedies to enforce the collection of a chancery decree for money may be resorted to as in the case of a judgment at law.</p> <p>4. Same—Personal Deerees in Chancery.—A personal decree in chancery has been declared the same in effect and placed upon the same basis as a judgment at law.</p> <p>5. Same—Writ of Capias ad Satisfaciendum for Enforcement of a Money Decree.—A writ of capias ad satisfaciendum for the enforcement of a money decree is clearly authorized by Hurd, Ch. 33, Secs. 43 and 47.</p> <p>6. Statutes—Giving Court of Equity Authority to Lssue Writs Appropriate for the Enforcement of Money Decree.—Where a statute gives the authority to issue writs appropriate for the enforcement of a money decree, satisfaction of such a decree may be sought by capias ad satisfaciendum. in any case where such writ would be proper, had the recovery been in law instead of equity.</p> <p>7. Same—Surd, Ch. 22, Sec. 42. Construed.—Sec. 43, Ch. 33, Hurd’s statutes, by the words “ by attachment against the person, by fine or imprisonment, or both,” gives a chancery court power to enforce its decrees by the writ of capias ad satisfaciendum. Such a writ provides for the attachment of the person and imprisonment, and is within the meaning of the statute.</p> <p>8. Same—Hurd, Ch. 22, See. 41, Construed.—By the use in Sec. 47, Ch. 33, Hurd’s statutes, of the words, “ the same may be carried into effect by execution or other final process, according to the nature of the case, a chancery court is given the power to issue a capias ad satisfaciendum under a decree like the one here in question.</p> <p>9. Practice—A Court of Law Exercises an Equitable Jurisdiction in an Application to Set Aside a Judgment by Confession.—In an application to set aside a judgment by confession a court of law exercises an equitable jurisdiction, and if the debtor fails to show that he had a defense to the whole or some part of the judgment, relief will be denied.</p>

<p>Assumpsit.—The common counts. Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>1. Statutes—Hurd’s Stat. 1901, p. 1487—Taxes a First Lien on Seal Property.—Section 258 of the revenue law makes the taxes upon real property, together with all penalties, interests and costs that may accrue thereon, a prior and first lien on such real property, superior to all other liens and incumbrances, from and including the first day of May in the year in which the taxes are levied, until the same are paid.</p> <p>2. Same—How Lien May be Foreclosed.—Section 253 of the revenue law provides tliat the lien may be foreclosed in equity in any court of competent jurisdiction in the name of the people of the State of Illinois, whenever the taxes for two or more years, upon the same description of property, shall have been forfeited to the state, and may be sold under the order of the court by the person having authority to receive state and county taxes, with the same notice to interested parties and right of redemption from said sale, as is now provided by law.</p> <p>3. Evidence—Taxes Due on the Collector's Boohs.—In proceedings to foreclose the tax lien on any real property, the amount due on the collector’s books shall be prima facie evidence of the amount of taxes against the said real property.</p> <p>4. Receivers—To Collect Taxes.—Waiving the question whether the court can, in any case, on bill filed as contemplated in section 253 of the revenue law, appoint a receiver, such appointment is unwarranted where the land is sufficient security for the indebtedness.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Elbridgb Hanecy, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Indictment for Wife Abandonment.—Error to the Criminal Court of Cook County; the Hon. Abner Smith, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Bill for an Acconnlilig.—Error to the Superior Court of Cook County: the Hon. Arthur H. Chetlain, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>1. Statutes—Sec. 6, Chap. 101, B. 8., Construed.—Under See. 6, Chap. 101, R. S., providing that when any oath authorized or required by law to be made, is made out of the state, it may be administered by any officer authorized by the laws of the state in which it is so administered, and if such officer have a seal, his certificate, under his official seal, shall be received as prima facie evidence, without further proof of his authority to administer oaths, it is necessary to the sufficiency of a notary’s certificate, that it shall be stated in the certificate that the notary has, by the law of the foreign state, authority to administer oaths.</p>

<p>1. Chancery Practice—Certificate of Chancellor Unnecessary to Make Proceedings a Matter of Record.—Proceedings in a chancery suit become part of the record by the certificate of the clerk independent of the judge’s certificate.</p> <p>2. Practice—Courts May Make Rules for the Transaction of Business.—Courts may make reasonable rules or orders for the transaction of their business, provided they are not in violation of the law of the land, and when made a matter of record they are to be governed thereby.</p> <p>3. Same—Rules of Court Are Law of Procedure.—When such rules are entered of record in such courts, the same become the law of procedure therein, in matters to which they relate, until rescinded, or modified, and entered of record in such court, and the court can have no discretion to apply them or not, according to its convenience, unless such discretion is reserved in the rules themselves.</p> <p>4. Presumptions— Where Testimony Taken Does Not Appear on the Record.—Where the testimony taken does not appear from the record, the finding of facts being sufficient to justify the order, it must be presumed that the court had jurisdiction to, and was justified by the evidence heard, in deciding the case as it did.</p>

<p>1. Pleading—Averment of Negligent Non-Action Not Sustained by Proof of Negligent Action.—Proof of negligent or wrongful action does not sustain an averment of negligent non-action.</p> <p>2. Evidence—Of Physical Conditions and Surroundings of the Place Where the Accident Occurred.—It is proper to allow proof that there were no gates at the crossing, for the purpose of showing the physical conditions and surroundings of the place where the accident occurred, that the jury might be the better enabled to judge of the due care of the plaintiff, on the one hand, and the alleged negligence of the defendant on the other. •</p> <p>3. Same—Of an Independent Cause of Action, Not Counted on in the Declaration.—The fact that evidence tends to support a charge of negligence not made in the declaration, does not render it improper, so long as it has a material bearing upon the charge of negligence made in the declaration.</p> <p>4. Practice—Motion to Exclude the Evidence, and to Instruct the Jury to Find for the Defendant.—A motion to exclude the evidence, and to instruct the jury to find for the defendant, is in the nature of a demurrer to the evidence, and admits not only all the evidence proves, but all it tends to prove; and in passing on such motion the judge is strictly limited to determining whether there is or is not evidence legally tending to prove the fact affirmed, i. e., evidence from which, if credited, it may be reasonably inferred, in legal contemplation, that the fact affirmed exists, laying out of view the effect of all modifying or countervailing evidence.</p>

<p>Assignment of Wages.—Appeal from the Superior Court of Cook County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Frank Baker, Judge-presiding. Heard in this court at the March term, 1902.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the March term, 1902.

<p>Divorce.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus. Judge presiding. Heard in this court at the March term, 1903.</p>

Assumpsit, upon the common counts. Appeal from the Circuit Court of Cook County; the Hon. George W. Brown, Judge presiding, Heard in this court at the March term, 1902.

<p>1. Witnesses—Swearing to One 'Thing Under One Oath and to Another Thing Under Another Oath.—A witness who under one oath knowingly affirms a proposition, and under another oath knowingly negates the same proposition, is not to be credited in either instance. The one statement neutralizes the other; and in a court of justice his evidence is entitled to no weight unless corroborated.</p> <p>2. Verdicts—Palpably and Manifestly Against the Weight of the Evidence.—Where the verdict is palpably and manifestly against the weight of the evidence, it is the duty of the trial judge to set it aside and to grant a new trial.</p>

<p>1. Practice—When Court May Require Parties to Produce Books or Writings in Their Possession.—The twelfth section of the practice act declares that the several circuit courts shall have power upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings, in their possession or power, which contain evidence pertinent to the issue, and requires notice to be given to produce the books and affidavit to be filed proving that the books contain any evidence material to the issue.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbkidge Hanecy, Judge presiding. Heard in this court at the October term, 1901.</p>

<p>1. Debtor and Creditor—Position of Creditor Who Takes Land by Execution with Notice of Equitable Claim of a Third Person.—The position of a party as judgment creditor, who takes land on execution from a debtor with notice of the equitable ownership of another, is no better than it would have been had she with such notice taken title by a conveyance made by such debtor.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Trespass on the Case.—Damages by flooding. Appeal from the Superior Court of Cook County; the Hon. Axel Chyteatjs, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>1. Practice—Written Propositions of Law Should Be Submitted Before Argument.—Written propositions of law should be submitted to the court before argument, in order that they may be discussed by the attorneys and considered by the court in rendering its decision. The practice of allowing written propositions of law to be submitted for the first time after the court has decided the case, is not to be commended.</p>

<p>1. Equity—Bill to Restrain a Justice of the Peace.—A bill in equity-will not lie to restrain a justice of the peace concerning a matter over which he has jurisdiction.</p> <p>2. Same—Where There is a Complete Remedy at Law.—The doctrine is well settled in equity, that when a party has a complete and adequate remedy at law, and fails from any cause to rely upon it in that forum, he will not be permitted to assert it in equity unless he was prevented by accident, or such circumstances as he was unable to control. Any laches on his part in failing to assert his rights in a court of law when called upon to do so, will prevent him from obtaining relief in equity.</p> <p>3. Same—Enjoining the Collection of a Judgment.—The collection of a judgment will not be enjoined for any defense or right which could have been asserted in a court of law, unless the complainant can show that he was prevented by fraud or accident from maintaining his legal right and that the obstacle which prevented him could not have been overcome or avoided by reasonable diligence or care on his part.</p> <p>4. Same— Will Not Set Aside a Judgment Because of Error of Trial Court.—A court of equity will not set aside a judgment because of errors committed by the trial court.</p> <p>5. Courts—Bound by Their Rules.—Courts are bound to observe their own rules; they constitute a law regulating their procedure.</p>

<p>1. Insurance—Violation of Contract by Tenant of Insured.—Where a landlord enters into a contract of insurance providing that no gasoline, except that contained in the reservoir of a gasoline stove, shall be kept within the building, it is his duty to see to it that the provisions of the policy were not violated even by the tenant; and in case the tenant violates such provision, the insurer is not liable.</p> <p>2. Same—Not Necessary to Show that Fire Occurred by Reason of Violation of Contract.—It is not necessary to show, in order to maintain a defense upon a policy of fire insurance prohibiting the storage of gasoline on the premises, except in the reservoir of a gasoline stove, that the fire occurred by reason of the violation in such respect, of the terms of the policy; the question is whether the condition of the policy has been violated.</p> <p>3. Same—Meaning of Clause “ Or if the Hazardbe Increased by Any Means Within the Control or Knowledge of the Insured.”—The clause “ or if the hazard be increased by any means within the control of the insured,” refers to means not specifically referred to in the policy itself, and does not modify the force of the other clauses under consideration.</p>

<p>Trespass on the Case, for personal injuries. Appeal "from the Circuit Court of Cook County; the Hon. Elbuidgul Hanect, Judge presiding. Heard in the Branch Appellate Court at the October term, 1601.</p>

<p>1. Insurance—Self-Executing Forfeiture Provision.—A provision of a policy that the failure to pay premiums by the insured, if living, shall avoid and nullify the policy without action on thepart of the company or notice to the insured or beneficiary, is self-executing. It is not like those cases where the association must do something or refrain from doing something to make the forfeiture complete.</p> <p>2. Same—Forfeiture Provision May Be Waived by the Company.— A forfeiture provision in a policy may be waived by the company, if it elects so to do. Such provision is made for the insurer, and' if it does not wish to take advantage of it, it need not do so.</p> <p>3. Evidence — Under Abandoned Replication, Not Admissible.— Where a demurrer to a replication has been sustained arid the plaintiff does not stand by the replication, but pleads over, and goes to trial on a general replication, evidence is not admissible under the abandoned replication.</p>

<p>I. Depositions—Commissioner Appointed to Take, May Adjourn the Time of Taking Within Reasonable Limits.—A commissioner appointed to take depositions has, within reasonable limits and for reasonable cause, power to adjourn the taking of depositions, as was done in this case from ten o’clock in the -morning until four o’clock in the afternoon.</p>

<p>• 1. Corporations—Body Having Been Dealt With as a De Facto Corporation Can Recover upon the Undertaking.—Where a party deals with a body as a corporation defacto, the corporation can recover upon the undertaking with it entered into by him.</p> <p>3. Pleading—Misnomer Must be Taken Advantage of by Plea in Abatement.—If a corporation sues by a wrong name, advantage must be taken of it by a plea in abatement. A misnomer is waived by pleading to the merits.</p> <p>3. Same—Declaration of Corpoi’ation Need Not Be Identical with the Name by Which it Made the Contract.—Itis not necessary that in an action brought by a corporation upon an instrument executed to it, the declaration should be identical with the name by which it made the contract.</p> <p>4. Same— Question Where There isa Variance Between the Name of the Corporation in the Declaration and in the Contract.—In this regard, if a question as to variance is made upon the trial, the issue is whether the suit is by the corporation with which the contract was made.</p>

<p>Appeal from an Order Granting a Writ of Assistance.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>1. Practice— When Objections to Special Findings Come-Too Late. —The assignment that the verdict is against the evidence applies to the general verdict of not guilty; it does not include the special findings; they must be objected to in the trial court.</p> <p>2. Same— Waiver of Objection to Action of Trial Court.—Where there is neither objection nor exception taken to the alleged error of the trial judge in admitting evidence, and such action is not complained of in the motion for a new trial, it will be considered as waived.</p>

<p>Bill to Foreclose a Mortgage.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Bill to Foreclose a Trust Deed, and for the appointment of a receiver. ■ Appeal from an interlocutory order of- the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding. Heard in this court at the October term, 1901.</p>

<p>Bill for an Injunction.—Appeal from an interlocutory order of the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in this court at the October term, 1901.</p>

<p>Bill to Foreclose a Trust Deed.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Assumpsit.—Error to the City Court of Aurora; the Hon. E. P. Goodwin, Judge presiding. Heard in this court at the April term, 1902.</p>

<p>1. Settlement of Accounts—Monthly Settlement.— The following form was sent out at the end of the month by the defendant: “ For February, 1900, milk, paid March 15, 1900, by check, $338.97; by butter $1.30; making a total of $330.37.” Similar statements were issued for six successive months; payments were made and accepted each month for milk delivered the preceding month. Held, that the course pursued tended to show- a settlement for the milk each month.</p> <p>3. Practice—Where Cross-examination Shows the Estimate of a Witness in Chief to he upon an Erroneous Basis.—Where cross-examination shows the estimate of the witness in chief to be upon an erroneous basis, it is not error to exclude such statement.</p>

<p>Trespass on. the Case, for personal injuries. Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge presiding. Heal'd in this court at the April term, 1902.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Henry County; the Hon. Hiram Bigelow, Judge presiding. Heard in this court at April term, 1902.</p>

<p>1. Practice—Appellee Has No Right to Bring Matters Before the Court Which Are Not Raised by Appellant's Appeal.—Where the appellant appeals from only a portion of a decree, the other matters contained in the decree are not before the court, and if the appellee desires the action of the trial court reviewed with reference to them, it will be necessary for him to sue out a writ of error for that purpose.</p> <p>2. Contracts—Estimating the Cost of Manufacttire of Machinery for Purpose of Computing Royalties.—The court reviews the evidence and holds that it warrants the findings of the chancellor.</p>

<p>1. Practice—Sufficiency of Evidence Before the Court on Exception to Overruling of Motion for a Neiv Trial.—Where a party does not object to evidence when offered, it may be brought before this court by moving for a new trial on the ground that the finding was against the evidence in the case, and preserving an exception to the overruling of such motion.</p>

<p>Trespass on the Case.—Seduction of wife. 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>

<p>1. Equity Jurisdiction—0/ Bill Filed by Abutting Property Owners to Enjoin Obstruction of Street.—Where the fee of the street where poles are being erected is in the city, and subject to the proper control of the city authorities, before a private citizen can enjoin the obstruction or occupation of the street, he must show that he is about to suffer an injury to his private rights or property that is irreparable in its nature and can not be fully compensated in a suit at law. Averment or proof that the construction sought to be enjoined is illegal or unauthorized, does not give a court of equity jurisdiction of a bill filed by the abutting property owners.</p> <p>2. Streets—Proper Parties to Proceedings for Removal of Obstruction Where it Does Not Result in any Special Damage to the Individual— Where the obstruction to a street does not result in any special damage to the individual he has no right to complain, but the proceeding for the removal of the obstruction must be in behalf of the public. In such case the public alone can complain.</p>

<p>1. Nuisances—When Equity Will Take Jurisdiction.—The ordinary rule is that if it is not clear that the thing complained of is a nuisance, equity will not take jurisdiction until the fact that it is a nuisance has been established at law. Where, however, the fact that it is a nuisance, is clear, and it is manifest that the injury resulting from the nuisance is irreparable, the modern rule is that equity will give relief at once.</p> <p>2. Same—Municipality May Be Held Responsible Where a Hospital is Wrongfully Located or Conducted by it.—Even a municipality, possessing the right of eminent domain and the police power, may be held responsible, where a hospital is wrongfully located or conducted by it, or is operated in an unwarranted manner or without due care and skill.</p> <p>3. Same—Charitable Institution Subject to an Injunction Against the Continuance of a Nuisance.—A charitable institution, even when not suable at law, is subject to an injunction against the continuance of a nuisance.</p> <p>4. Same—Hospital Not a Nuisance Per Se.—A hospital is not a nuisance per se, but it may be so located and conducted as to be a nuisance to people living close to it.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge presiding. Heard in this court at the' April term, 1902.

Trespass on the Case.—Damages from fire set by a locomotive. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton. Judge presiding. Heard in this court at the April term, 1902.

Trespass on the Case, for fraud-and deceit. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge presiding. Heard in this court at the April term, 1903.

Assumpsit, upon a contract for the sale of land. Appeal from the Circuit Court of Lake County; the Hon. Charles E. Fuller, Judge presiding. Heard in this court at the April term, 1902.

<p>1. Highways—The Construction and Maintenance of a Telegraph Line upon the Highway is a New and Additional Burden.■—The construction and maintenance of a telegraph line upon the highway is a new and additional burden upon the fee to which it was not contemplated it should be subjected and for which the owner is entitled to additional compensation.</p>

<p>Bill for Injunction.—Appeal from the Circuit Court of Knox County; the Hon. John A. Gray, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>1. Statutes—Act of March 7, 1899, in Regard to Street Railways, is Confined to Companies Incorporated Under the General Laws of This State.—The act of March 7,1899, in regard to street railways, is confined to companies incorporated under the general laws of this state for the purpose of constructing, maintaining or operating horse, dummy, or street railroads.</p> <p>2. Same—Construction of Word “ Person ” or “ Persons."—Section 1 of chapter 131 of the revised statutes provides that in the construction of all statutes now in force, or which may hereafter be enacted, the word person or persons, as well as all words referring to or importing persons, may extend to and be applied to bodies politic and corporate as well as individuals.</p> <p>3. Same—Conferring Power of Eminent Domain.—Statutes conferring power to exercise the right of eminent domain are to be construed strictly.</p> <p>4. Equity Practice—Where Case is Heard on Bill and Answer.— Where a case is heard on bill and answer, or upon bill, answer and exhibits, the answer is taken as true. The complainants thereby admit that all that is stated in the answer is true, whether it be responsive to the bill or not, and that they have no ground of relief except the facts which are substantially admitted in the answer to be true.</p> <p>5. Servitudes—Transmission of Electric Heat, light and Power on the Poles of a Street Railway.—The transmission of electric heat, light and power on the poles of a street railway or the addition of another system of poles and wires to also transmit electric heat, light and power, is an added servitude.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Stephenson County; the Hon. James S. Baume, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Words and Phrases—Franchise Defined.—A franchise is a royal privilege or branch of the king’s prerogative, subsisting in the hands of a subject. Being therefore derived from the crown, it must arise from the king’s grant; or, in some cases, may be held by prescription, which presupposes a grant.—Blackstone.</p> <p>2. Same—“ Indebted,” as Used in State Constitutions.—The word “indebted,” as used in state constitutions, does not include contracts for the annual supply of municipalities with such necessaries as light and water and of a similar character, and contracts for the payment thereof do not create a debt for the aggregate amount which may become due upon a compliance with the terms of the contract.</p> <p>3 Franchise—City Ordinance Granting Right to Use Streets for Waterworks System is Not.—A city ordinance granting the privilege of constructing and operating a system of waterworks is a mere license. A franchise must be granted by the legislature, and a municipal body can not confer it.</p> <p>4. Practice—Power of Judge to Hear and Determine Motions in Vacation Time.—He judge has authority to hear and determine a motion to dismiss a bill for want of equity upon its face, but he has no authority to dismiss the bill except in term time.</p> <p>5. Municipal Indebtedness—Ordinance Enacted for the Purpose of Regulating the Maximum Sums to be Paid Annually for a Supply of Water.—The power delegated to municipal corporations to regulate rates for water supplied by a corporation is not exhausted by the first or any subsequent exercise thereof, but is a continuing one, which may be exercised when needed to prevent extortion. Such ordinances do not, within themselves, create any indebtedness, but merely establish, subject to review by the courts, that a greater sum can not be lawfully exacted for that commodity.</p> <p>6. Same—Contract of City for Rental of Hydrants.—Where a city enters into a contract for the rental of water hydrants for a term of twenty years, the agreed price therefor to be paid annually, which sum for any one year is not in excess of the limitation in Sec. 12 of Art. 9 of the constitution, but, taken for. the whole term, is in excess of the debt it is authorized to incur, the contract is not prohibited by the constitutional provision, but is legal and binding, there being created no present indebtedness for the whole sum, but only as the rent falls due from year to year.</p> <p>7. Ordinances—Appropriation Ordinance Prior to One Providing for the Rental of Hydrants from Waterworks Company.—It is not necessary to pass an appropriation ordinance prior to passing one to provide for the rental of hydrants from the waterworks company.</p> <p>8. Cities and Villages—No Power to Donate Lot for Site of Waterworks Plant Not Owned by City.—A city proceeding under the provisions of the statute authorizing it to grant a license to a water company to supply water to the city and its inhabitants, has no power to either acquire a lot for the location of such private company, or to give it or its use to such company.</p>

Action of Case.—Damage by reason of a change of grade of a street. Appeal from the Circuit Court of Tazewell County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the May term, 1902.

Trespass on the Case, for injuries to live stock. Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge presiding. Heard in this court at the May term, 1902.

Indictment, for selling intoxicating liquors to minors. Error to the Circuit Court of Ford County; the Hon. John H. Moffett,. Judge presiding. Heard in this court at the May term, 1902.

<p>Trespass on the Case.—Damages from flooding. Error to the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>1. Statutes—Section 1 of Chapter 77, JR. 8., Applies Only to Judgments of Courts of Record.—Section 1 of chapter 77, entitled “Judgments, Decrees and Executions,” applies only to judgments of courts of record.</p> <p>2. Judgment Debtor—Both Equitable and Legal Interest May Be Taken and Sold.—Under the present statute both the equitable and legal interest of a judgment debtor in lands and tenements may be taken and sold under execution or other legal process.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cass County; the Hon. Thomas N. Mehan, Judge presiding. Heard in this court at the May term, 1903.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>Assumpsit, upon a contract of guaranty. Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>Construction of a Will.—Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>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 May term, 1903.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Adams County; the Hon. John C. Broady, Judge presiding. Heard in this court at the May term, 1903.

<p>1. Negligence—■Abutting Owner Has a Right to Presume that a Railroad Will Not be Guilty of.—An owner of property has a right to presume that a railroad company will not be guilty of negligence, and has the right to use his property in the ordinary and usual way, and so long as he does so, will not be deemed guilty of contributory negligence.</p> <p>3. Same—Owner of Property Abutting on a Railroad May Use it the Same as if the Railroad Were Not There.—It shall not in any case be considered as negligence on the part of the owner or occupant of property injured, that he has used the same in the manner or permitted the same to be used or remain in the condition it would have been used or remained, had no railroad passed near the property injured.</p> <p>3. Burden of Proof—Fact that Railroad Caused Fire, Proves a Prima Facie Case Against it.—The fact that a locomotive engine caused the fire, proves a, prima facie case of negligence against the. railroad, and the burden of proof by the terms of the statute was upon it to show that the fire was not occasioned by its negligence.</p>

Trespass oil the Case.—Death from negligent act. Appeal from the Circuit Court of Foi'd County; the Hon. John H. Moffett, Judge presiding. Heard in this court at the May term, 1902.

<p>1. Debtor and Creditor—Claim of Exemption Where the Pretended Purchase was a Device to Defraud Creditors.— Where goods are attached in the hands of one who claims to hold them for another who has purchased them with a view to defraud creditors, the party holding the goods can not claim a right of exemption for the fraudulent vendee.</p>

Trespass on the Case, for fraud and deceit. Appeal from the Circuit Court of DeWitt County; the Hon. William G. Cochran, Judge presiding. Heard in this court at the May term, 1902.

<p>Bill to Compel a Conveyance of land.-—Error to the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge presiding. Heard in this court at the - May term, 1903.</p>

<p>1. Promissory Notes—Relation of Various Makers May be Shown. The relations of the various makers of a promissory note may be shown* as among themselves, and this may be proved by parol.</p> <p>2. Practice—Court Will Not Consider Objections Affecting Only Parties Not Before the Court.—This court will not consider objections affecting parties who have been dismissed out of the case when made by those who have no right to raise them.</p>

<p>Replevin.—Error to the Circuit Court of Fulton County; the Hon. John J. Glenn, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>1. Actions— Quasi ex Delicto in Nature, Properly Brought in the Name of the Party Entitled to Possession.—An action merely for the possession of property, and quasi ex delicto in its nature, is properly brought in the name of the party entitled to possession.</p> <p>2. Landlord and Tenant—Bights of Assignee of Lease.—The same right to terminate the tenancy, and upon its termination to proceed for the unlawful detention of the premises, exists in the grantee as the original landlord might have exercised, and there, is no difference in the application of this principle where the plaintiff is but the assignee instead of the grantee of the landlord.</p> <p>3. Same—See. 9, Oh. 80, B. S.—Sec. 9, Ch. 80, R. S., provides that when default is made in any of the terms of a lease, it shall not be necessary to give more than ten days' notice to quit, or of the termination of such tenancy; and the same shall be terminated on giving such notice to quit at any time after such default in any of the terms of such lease, and no other notice or demand of possession or termination of such tenancy shall be necessary; and gives the remedy of re-entry for the failure of the tenant to perform any of the stipulations contained in the lease, whether such remedy, is contained in the lease or not.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookw alter, Judge presiding. Heard in this court at the May term, 1902.

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Menard County; the Hon. Harry Higbee, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>1. Appeals—Prom Probate—Seo. 14, Oh. 148, B. S.— Section 14, Chapter 148, R. S., provides that appeals from the County Court, from the order allowing or disallowing any will to probate, may be taken to the Circuit Court by any person interested in such will, in the same time and manner as appeals may be taken from justices of the peace, except that the appeal bond and security may be approved by the clerk of the County Court. Under such provision the relators must, by their petition or otherwise, show themselves to be interested in the will in question.</p>

<p>1. Equity—When It Will Furnish a Remedy.—When a right is given to a person, then wrongfully taken away by another, and the law by reason of its universality can not afford a remedy in the peculiar circumstances of the case, equity will correct the law and furnish the remedy.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Tazewell County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Montgomery County; the Hon. Truman E. Ames, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>1. Waiver—0/ Life Estate by Silence.—A bill to reform and correct two deeds averred that the deeds were delivered November 1, 1896, and that Moses Larrance died November 3, 1896, and Nancy, his wife, in 1901, and that it was intended by the grantors to reserve a life estate to Nancy, but by mistake this reservation was omitted from the deeds; that this mistake was known to the grantees, and unknown to the grantors; that soon after the death of Moses Larrance the defendants filed the deeds for record and entered into the possession of the premises to them respectively conveyed, and thereafter claimed to be the absolute owners in fee, free from all claim, right or title of their mother, Nancy, equitable or legal, and continued in such possession and claim, and received the rents, issues and profits thereof, until the death of the mother, rendering to her no account of the same, and payingnothingof the rents to her. Held, that in the absence of any averment in the bill that the mother claimed any interest in the premises, or in the rents and profits thereof during her lifetime, or made some request or demand concerning the same, it will be presumed that she waived her life estate in favor of defendants, and acquiesced in the deeds as they were made and appeared of record.</p> <p>2. Administrator—Has No Concern in Perfecting the Title to Real Estate.—An administrator has no concern in perfecting the title to real estate. None but the heirs or creditors, if they should be interested, can file a bill to correct the title.</p>

<p>Assumpsit, upon a promissory note. Appeal from the County Court of McDonough County; the Hon. William J. Franklin, Judge presiding. Heard in this court at the May term, 1902.</p>

Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail. Judge presiding. Heard in this court at the May term, 1902.