Volume 105 — Illinois Appellate Court Reports

Trespass on the Case, for personal injuries. Appeal from the City Court of Mattoon, the Hon. Lapsley C. Henly, Judge presiding. Heard in this court at the May term, 1903.

<p>1. Instructions—Signaling Out One Prominent Fact and Ignoring Others.—An instruction which calls repeated attention to a prominent fact upon which fraud is predicated—the relationship of the parties, and ignores another important point incident to such relation, is misleading.</p> <p>3. Same—That No Presumption Arises from Relationship of Parties to Alleged Fraudulent Sales.—An instruction which tells the jury that there is no presumption of law from the relationship of the parties toan alleged fraudulent sale, is misleading, when, if considered together with other facts proven in the case, not alluded to in the instructions, the circumstances of the relationship of the parties might have been of controlling importance.</p> <p>3. Same—That the Father and Son, in Their Dealings with Each Other, Are upon Precisely the Same Footing as Persons Who Are Stranger's.—An instruction that the father and son, in their dealings with each other, are precisely upon the same footing as persons who are strangers, and that the same presumptions of honesty and fair dealing applies to them as to other persons, is erroneous. This is a question of fact for the jury.</p>

<p>1. Slander—What is, Under the Statute.—The statute makes it an actionable slander for a person to falsely use, utter or publish words which in their common acceptance shall amount to charge any person with having been guilty of fornication or adultery.</p> <p>2. Same—When Several Statements Taken Together Amount to Charging Plaintiff with Adultery.—While it is true that it is not slander to say falsely of a person that he or she would commit an offense. which would constitute slander if it had been said that such person had committed that offense, yet where several such statements, in view of the whole connection, surroundings, occasion and evident intent with which they were spoken and understood by the persons to whom they were said, amount to charging the plaintiff with having been guilty of adultery, such statements constitute slander.</p>

<p>1. Practice—Where Case Has Been Tried Twice by a Jury.—Where a case has been tried twice by a jury, and their conclusion twice approved by the trial judge, it will not be disturbed, in the absence of anything appearing in the record which tended to improperly influence ' them in the consideration and determination of the issues presented to them. •</p>

Trespass on the Case, for personal!injuries. Appeal from the Circuit Court of Macoupin County; the Hon. Egbert B. Shirley, Judge presiding. Heard in this court at the May term, 1902.

<p>Assumpsit.—Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>Trespass on the Case.—Damage to orchard by fire. Appeal from the Circuit Court of Cumberland County; the Hon. Henry Van Sellar, Judge presiding. Heard in this court at the May term, 1902.</p>

Statutory Action, for killing of stock by railroad. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge presiding. Heard in this court at the May term, 1902.

<p>Petition to Set Aside Order of Approval of Report of Commissioners of Drainage District. — Appeal from the County Court of Morgan County; the Hon. Charles A. Barnes, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>1. Evidence—Where it is Conflicting it is the Jury’s Province to Find the Truth.—Where the evidence is conflicting it is the peculiar province of the jury to find the truth, and this court will not feel justified in disturbing a judgment that is clearly supported by the evidence produced by the plaintiff, although the evidence for the defendant may, on the face of the transcript, appear to preponderate in his favor.</p>

<p>1. Mortgages—-When Contemporaneous Parol Agreements Not Included in Mortgage May Be Shown.—A contemporaneous parol agreement not included in the mortgage may be shown when such an agreement would render the mortgage void as against third parties under our statute.</p> <p>2. Same—Third Party May Prove Fraudulent Intention of Parties. —A third party may prove the fraudulent intention of the parties to the mortgage, although such proof does contradict the express terms thereof. " '</p> <p>3. Instructions— That Mortgage Is Not Invalidated by an Agreement Between the Parties that Mortgaged, Property May Be Sold.—An instruction to the effect that the mortgage was not invalidated by reason of the mortgagee ratifying sales made by the mortgagor of the mortgaged property, or by reason of the mortgagee authorizing the mortgagor to sell the same provided the proceeds of such sale were accounted for to the mortgagee by him, is erroneous for the reason that the mortgage would be void as against defendant, if he was a bona fide purchaser óf the property for value without notice.</p>

Trespass on. the Case, for personal injuries. Appeal from the Circuit Court of McDonough County; the Hon. John A. Gray, Judge presiding. Heard in this court at the May term, 1902.

<p>1. Wills—Statutory Requirements. — Our statute requires that “ wills, testaments and codicils, by which any lands * * * and chattels are devised, shall be reduced to writing, and signed by the testator or testatrix * * * and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before .the County Court of the proper county, that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, and such evidence shall be sufficient proof of the execution of said will, testament or codicil, to admit same to record; * * and every will, testament or codicil, when thus proven to the satisfaction of the court, shall be * * * good and available in law for the granting, conveying and assuring the lands, tenements and hereditaments. annuities, rents, goods and chattels therein devised, granted and bequeathed.”</p> <p>2. Same—Sufficient Document.—The following writing was offered for probate:</p> <p>“ This is to certify that Mark Boatman is holding in trust, the land willed to Emory M. Boatman by his father, and his building and loan stock, being in Edgar County Building and Loan Co.’; also his share of part of his brother’s estate. C. E. Boatman, all of which is to be returned to the said Emory M. Boatman, if anything might happen to Mark Boatman, or at Emory Boatman’s option or will; and also be it understood that if anything might happen Emory M. Boatman that all of his private belongings, whatever they may be, are to go to Mark Boatman. This to be signed in duplicate.</p> <p>All of State of Illinois, and Edgar Co., Mch. 16, 1900.</p> <p>W. P. Houston, (Signed) Mark Boatman,</p> <p>Michael Hoover. Emory M. Boatman.”</p> <p>Held, that as the writing was written by the deceased, and the words “ be it understood that if anything might happen Emory M. Boatman that all his private belongings, whatever they may be, are to go to Mark Boatman,” indicate clearly that the deceased intended by it to give his property to his brother Mark, to take effect at the death of the deceased, it is sufficient in form to constitute his will.</p>

Assumpsit, on a contract of purchase and sale of grain. 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>1. City Charters—Provisions Repealed by State Constitution.— Section 21, article 6, of the constitution of 1870, providing that justices of the peace, police magistrates and constables shall be elected in apd for such districts as are or may be provided by law, and the jurisdiction of such justices of the peace and police magistrates shall be uniform, repeals that part of a city charter granting to the president of the city council exclusive jurisdiction in all cases arising under the Ordinances of the corporation, and concurrent power and jurisdiction with justices of the peace in all civil and criminal cases within the county, arising’ under the laws of this state.</p> <p>2. Appeals—From Judgment Rendered by a Person Possessing No Judieial Powers.—The taking of an appeal from a pretended judgment rendered by a person possessing no judicial powers, will not give the Circuit Court jurisdiction.</p> <p>3. Practice—Questions of Jurisdiction Raised bey Motion to Dismiss Suit.—The question of jurisdiction may be raised by motion to dismiss the. suit.</p>

<p>1.' County Court—Has Not Conferred upon It Any General Chancery Jurisdiction.—The County Court has not conferred upon it any general chancery jurisdiction, but within the powers conferred upon it by the constitution and the statutes in pursuance thereof, it has the powers and authority to administer equity principles incidentally necessary to the exercise of the jurisdiction it actually possesses.</p> <p>2. Same—Power to Settle and Distribute the Personal Estate of Deceased Persons.—The County Court has plenary power to settle and distribute the personal estate of deceased persons, and the necessary incidental power to clothe the administrator appointed by it, with the possession and control of the personal assets of deceased persons, without reference to any distinction between law and equity. Where any person has personal property, choses in action, or other assets in possession, to which the administrator lays claim, the County Court has full power to issue its citation against such person, and may thereupon determine the question of ownership of such property, when both the law and equity jurisdiction may be involved.</p> <p>3. Courts—Mere Form of Application Is Not Material.—The mere form of application to call into action the power of the court is not material, where the court in fact has jurisdiction of the subject-matter.</p>

<p>1. Verdicts—Where Reviewing Courts Will Not Disturb.—Where the evidence of either side, standing alone, would support a verdict for the side to which it might be returned, a reviewing court will not disturb the verdict that was returned, on the sole ground that it is not supported by the evidence.</p> <p>2. Banks and Banking—Banker Must Use Ordinary Care in Making Loans.—A banker must use ordinary care in making loans and collections.</p>

Trespass on the Case, for damages to stock. Appeal from the Circuit Court of Ca.ss County; the Hon. Thomas N. Mehan, Judge presiding. Heard in this court at the May term, 1903.

<p>Bill to Foreclose a Mortgage,—Appeal from the Circuit Court of Douglas County; the Hon. William G. Cochran, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>Trespass, to real estate. Appeal from the Circuit Court of Montgomery County; the Hon. Truman E. Ames, Judge presiding. Heard in this court at the May term, 1903.</p>

Trespass on the Case, for damages from fire set by locomotive. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge presiding. Heard in this court at the May term, 1902.

Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Sellar, Judge presiding. Heard in this court at the May term, 1903.

<p>Prosecution Under the Dram-Shop Act.—Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge presiding. Heard in this court at the May term, 1903.</p>

<p>Trespass on the Case.-^Damages by fire. 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>1. Vendor and Vendee—Where Vendee Relies upon Superior Knowledge of Vendor.—Where the vendee is wholly ignorant of the value of the property, and the vendor knows this, and also knows that the vendee is relying upon his (the vendor's) representation as to value, and such representation is not a mere expression of opinion but is made as a statement of fact, which statement the vendor knows to be. untrue, such a statement is a representation by which the vendor is bound.</p> <p>2. Judgment by Confession—May be Opened upon Applieamm"of any Defendant Having a Meritorious Defense.—An application to open a judgment by confession is always addressed to the equitable as well as to the law powers of the court, and in the exercise of its equitable powers, the court may open it upon the application of any defendant having a meritorious defense to the cause of action upon which it was rendered, whether his co-defendants do or do not join him in such application.</p>

<p>Replevin.—Appeal from the City Court of Canton; the Hon. P. W. Gallagher, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>Trover.—Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge presiding. Heard in this court at the May term, 1902.</p>

Trespass- on the Case, for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge presiding. Heard in this court at the May term, 1902.

<p>1. Evidence—Province of Jury Where it is Conflicting.—Where the . evidence is conflicting upon the vital question of fact tried, it is the province of the jury to determine where the truth lies.</p>

Trespass on the Case.—Damages caused by raising the grade of streets. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge presiding. Heard in this court at the May term, 1902.

<p>1. Debtor and Creditor—Conveyance to Defraud Creditors.— Where one party is the debtor of another when he makes a conveyance, the effect of which is to hinder and delay his creditor in the collection of the debt, it matters not that there was no design on the part of the grantor and the grantee to defraud him. The vital question is, does the conveyance deprive the creditor of a right which would be legally effective had the conveyance never been made. Every conveyance of property made by the parties to it, with a design to hinder, delay or defraud creditors in the collection of their debts, is void as to any existing creditor, whether made with or without a valuable consideration.</p>

<p>Trespass on the Case.—Damages caused by damming up an open drain. ■ Appeal from the Circuit Court of Ford County; the Hon. John H. Moffett. Judge presiding. Heard in this court at the May term, 1902.</p>

<p>1. Evidence—To Prove that Other Animals Sold at the Same Sale Were Sound, Inadmissible.—In an action for damages caused by the sale of a diseased mule at an auction sale, evidence tending to prove that none of the other mules sold on the same occasion were afflicted, is inadmissible.</p> <p>3. Instructions—Circumstantial Evidence.—An instruction which states that in determining what facts are proven in the case the jury should carefully consider all the facts before them, with all the circumstances of the transaction in question as detailed by the witnesses, and that they may find any fact proven which they .may believe from the evidence may be rightfully and reasonably inferred from the evidence given in the case, although there may not be any direct testimony as to such facts, is proper. By its refusal the value of the circumstantial evidence would be destroyed and no fact could be established save by positive and direct evidence.</p> <p>3. Same—Invading Province.of the Jury.—An instruction by which the jury are told that although they may believe from the evidence that the mule took stole and died a few days after plaintiff obtained possession of it from the defendants, yet this of itself is not sufficient to justify them in finding a verdict for the plaintiff, is erroneous, as invading the province of the jury to determine questions of fact.</p>

Trespass on the Case, for fraudulent sale of diseased cattle. Appeal from Edgar County; the Hon. Henry Van Sellar, Judge presiding. Heard in this court at the May term, 1902.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge presiding. Heard in this court at the May term, 1902.

<p>Trespass on the Case, for slander. Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge presiding.1 Heard in this court at the May term, 1902.</p>

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

<p>1. Practice—Extension of Tim,e in Which to Present an Amended Affidavit of Merits.—The application for an extension of time in which to present an amended affidavit of merits is addressed to the sound discretion of the court and unless that discretion has been abused, it will not be disturbed.</p> <p>2. Same— Where Party May Have the Damages Assessed, by a Jury. —Section 41 of the practice act provides that in all suits in the courts of record in this state, upon default, either party may have the damages assessed by a jury. The words are imperative and not open to construction. A defaulted defendant, at any time before the damages are assessed by the court, is entitled, on asking it, to have his damages assessed by a jury, and the refusal of the court to grant his request is reversible error.</p> <p>3. Same—Plea to Declaration Supported by Affidavit of Merits.— Where, under Ch. 110, Sec. 37, R. S., the plaintiff supports his declaration with an affidavit of claim, defendant’s plea must be supported by an affidavit of a meritorious defense.</p>

<p>Debt, for violation of an ordinance. Appeal from the Circuit Court of Hancock County; the Hon. John J. Glenn, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>1. Instructions—Where the Evidence is Conflicting.—Where the evidence on a pivotal point is in conflict it is important that the instructions should be correct.</p> <p>2. Same—Leaving Out Element of Authority of Officer to Act.— An instruction which tells the jury that a contract of insurance was entered into, if they believe from the evidence that the secretary of the company accepted plaintiff’s application and membership fee and told plaintiff that a policy of insurance would be executed and delivered to him in some way, is vicious, because it omitted the element of his authority to pass on an application and issue a policy.</p>

<p>Debt, for violation of an ordinance. Appeal from the Circuit Court of Hancock County; the Hon. John A. Gray, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>1. Contracts—Defaulting Party Liable for Increased Cost of Obtaining the Material Elsewhere.—Where a company contracts to furnish iron by a certain time, and defaults, it is liable to the other contracting party for any increased cost of obtaining material elsewhere on short notice to take the place of that ordered from the defaulting company.</p>

<p>Replevin.—Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge presiding. Heard in this court at the May term, 1903.</p>

Trespass on the Case.—Damages by laying of second track on railroad right of way. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge presiding. Heard in this court at the May term, 1902. Appellee brought this suit to recover damages against appellant for laying down a railroad track along its right of way across Fourth street in the city of Springfield, in front of appellee’s property, whereby the ingress to and egress from it was impaired.

<p>1. Insurance—Knowledge of Agent is Knowledge of the Company.— The pastor in charge of a church, wrote to an insurance company without authority from the trustees of the church, requesting to be informed of the terms upon which insurance upon the church parsonage might be obtained. In response to this letter, the company wrote to the pastor that "in order that you may be fully prepared to lay the matter before your board. * * * I take pleasure in handing you policies herewith, subject, of course, to acceptance.” The company entered a record of their insurance in a book kept by it for such purpose. The letter with two policies, one fire and the other tornado, inclosed, was received by the pastor at the post-office, and on his way from the post-office to his residence he met one of the trustees who was also a member of the parsonage committee, and there read the fire policy to him, whereupon the trustee informed him that he guessed he would take it, and then put it in his pocket. The trustee then went home, and while engaged in writing a letter to the company in which to send a remittance for the fire policy, the fire occurred and the parsonage was destroyed. After this the trustee sent the remittance and returned the tornado policy. Held, that the response of the manager of the insurance company inclosing the policy accomplished the end of creating the pastor the agent of the company to lay the matter before the board of trustees for their action, as is clearly implied, if not expressed, when he said, ‘ ‘ in order that you (the pastor) may be fully prepared to lay the matter before your board * * * I take pleasure in handing you policies herewith, subject, of course, to acceptance.” The pastor as agent of the company knew at the time he gave the policy to the trustee that it had been accepted, and his knowledge was the knowledge of the company for every sufficient purpose, and whether this knowledge was in fact communicated to the company’s manager before the fire is not essential.</p>

Bill for an Injunction.—Appeal from the Circuit Court of Fulton County; the Hon. George W. Thompson, Judge presiding. Heard in this court at the May term, 1902. This is a suit in chancery brought by appellee to restrain appellants from interfering with appellee’s telephone business and property.

<p>1. Real Estate Brokers—Interference of Owner with BroTeer in Negotiating Sale.—Where the owner of land engages the services of a broker to sell his land, so as to net seventy dollars per acre, and agrees to protect the broker in pricing the land at from seventy-one to seventy-two dollars and fifty cents, and afterward connives with a prospective purchaser with a view of depriving the broker of his commissions, he is liable to the broker for his services, the latter being instrumental in bringing about the sale of the land.</p>

Covenant.—To recover cost of redemption from tax sale. 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>Assumpsit, on a promissory note. Appeal from the Circuit Court of Ford County; the Hon. John H. Moffett. Judge presiding. Heard in this court at the May term, 1902.</p>

<p>1. Insurance—Death by Suicide, Sane or Insane.— A provision in a contract of insurance that in case the insured shall commit suicide, whether sane or insane, the policy shall be null and void, is not against public policy, but is valid, and is a sufficient defense to an action on the policy, where the insured has committed suicide, sane or insane.</p>

<p>Debt, to recover a statutory penalty. Appeal from the Circuit Court of DeWitt County; the Hon. William G. Cochean, Judge presiding. Heard in this court at the May term, 1902.</p>

<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 the Branch Appellate Court at the October term 1901.</p>

<p>Trespass oil the Case, for libel. 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. Instructions—That Because Plaintiff Mentioned Purpose for Which He Bought Materials Defendant Warranted Them for Such Purpose.—An instruction to the jury that even though they found that the goods purchased were the identical goods selected, and were in every respect equal to the samples from which they had been purchased, still if they were not fit for the purpose for which defendant said at the time he ordered them he intended to use them, that in such case the plaintiff had a right to refuse to accept them, is not proper, for the reason that it assumes to tell the jury that because plaintiff may have mentioned that the material he was purchasing was for a house, the jury must understand that the defendant warranted the material for such purpose.</p>

<p>1. Equity Practice—Chancellor May Submit Questions of Fact to a Jury.—Ic is within the discretion of the chancellor to submit to a jury questions of fact, but such submission does not deprive the parties of the judgment of the chancellor; he may accept or reject the advice of the jury.</p>

<p>1. Words and Phrases—Alimony, Defined.—Alimony is an allowance to a wife by order of court on account of her, without her' fault, living separate and apart from her husband.</p> <p>3. Alimony—Order to Pay for Support of Child is Not.— An order to pay for the support of children is not an award of alimony.</p> <p>3. Bankruptcy—Order upon a Father to Support His Child of Tender Years.-—An order upon a father to support his female child of tender years can not be discharged under bankruptcy proceedings.</p> <p>4. Same—Order to Reimburse a Stranger for Past Support of Child is Discharged by.—The obligation of aman to recompense his former wife for expenditures made after she had remarried, for the benefit of their child, is like that of his obligation to recompense any other person, who had contributed to the support of his minor child. It is but a civil debt and is discharged by the father’s discharge in bankruptcy proceedings.</p>

<p>Assumpsit, upon a contract of subscription. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</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. Appellee obtained a verdict and judgment for $6,000 in an action against the City of Chicago for injuries received by him while walking south on the east side of Stony Island avenue in the evening of February 2, 1897.

<p>Attachment, Assumpsit, and Bill of Interpleader.—Three cases consolidated. 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>

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. Reversed and remanded.

Trespass oil the Case.—Damage to growing crops caused by filling up a ditch. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.

<p>Replevin.—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>

Trespass on the Case.—Damages caused by the elevation of railroad tracks. 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>1. Master and Servant—Servant Assumes the Ordinary Hazards of the Employment.—A servant assumes the ordinary hazards, of the employment in which he is engaged.</p> <p>2. Negligence—By Reason of Which Damage Can Be Recovered.— The only negligence for which an injured party can recover damage is that which was the proximate cause of the hurt.</p>

Trespass on tile Case.—Damages for negligence of bank in collecting a draft. Appeal from the Circuit Court of book County; the Hoii. Richard W. Clifford, Judge presiding. Held: and refused to pay further checks, and at noon on Monday, Timberlake & Company failed, and have since remained insolvent.

<p>1. Practice—Objections Waived When Not Made in the Trial Court. —It is too late to raise in this court an objection to an informality which, had attention been called to it at the time, would doubtless have been at once remedied. By not making the objection in the trial court, it is deemed to have been waived.</p> <p>2. Same—Court is Presumed to Nave Complied with Its Own Rules. —In the absence of any showing to the contrary the presumption is that the court, at the time of the trial, complied with its rules in respect to calling the short cause calendar.</p>

Assumpsit, for a salary. 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. Appellant, the Alston Manufacturing Company, a corporation, was engaged in the manufacture and sale of paints, etc., in the city of Chicago. In 1893, appellee was secretary and treasurer of the corporation at a salary of $4,000 per annum and was also a director of the corporation.

<p>Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>Assumpsit, upon a promissory note. 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.</p>

<p>1. Evidence—Of Seduction Admissible in Action for Breach of Promise of Marriage.—Evidence of seduction in an action for breach of promise of marriage is admissible, though the seduction is not charged in the declaration. It is not necessary to plead that which is merely evidence.</p> <p>3. Damages—In Actions for Breach of Promise of Marriage.—The jury in cases of breach of promise of marriage are entitled, when they find the contract of marriage made and broken, to take into consideration all the facts and circumstances of the ’case, and particularly the conduct of the defendant in his whole intercourse with, and treatment of, the plaintiff.</p>

<p>1. Rewards—Rule as to Payment Based upon the Principle Applicable to Contracts.— The rule as to the payment of an offered reward is based upon the principles applicable to contracts; it being universally held that if one having knowledge of an offered reward does that for which the offer is made, by such performance there is a meeting of minds and a contract made.</p> <p>2. Same—One Claiming a Reward for Doing a Certain Thing Must Have Known of Reward.—In the case of an offered reward for the doing of a certain thing, the act of one who, knowing of this, performs the condition, creates a contract; the performance constitutes both acceptance and fulfillment.</p> <p>3. Contracts—A Mere Offer Does Not Constitute.—A mere offer not assented to, does not constitute a contract.</p> <p>4. Commissions—Person■ Procuring Customer in Response to an Offer of a Broker to Divide His Commission Must Show Acceptance by Both upon Conditions of Offer.— Defendant issued a circular setting forth that he had money to loan and would divide commissions, evenly with parties bringing borrowers. Plaintiff brought a customer to him who negotiated a loan. Held, in order to recover the share of commissions offered in the circular, plaintiff must show knowledge by defendant of his expectation to receive a portion of the commission, or notice that he had brought the borrower to defendant because of the circular, and that from the circumstances, defendant, as a reasonable man, should have understood that plaintiff expected commissions to'be equally divided.</p>

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 March term, 1902.

Assumpsit, on a benefit certificate. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in this court at the March term, 1902. March 20, 1895, appellant issued a benefit certificate to Peter A. Stensland. . At that time the by-laws provided that if the assured committed suicide, sane or insane, within one year after the date of the certificate, no benefit should be paid.

<p>1. Statute of Limitations—Equity Follows the Law.—Where a bill in equity states a case within the statute of limitations at law, the objection may be raised by demurrer to the bill. In such cases equity follows the law by analogy.</p> <p>3. Same—A Statute of Repose.—The statute of limitation is a statute of repose. It is intended for the protection of the alleged debtor,’ against demands brought forward after so long a time from the transaction involved, that evidence formerly within the power of the defendant to produce may have been lost, destroyed, or otherwise placed beyond his power or control.</p> <p>3. Same— Where a Person Liable to an Action Fraudulently Conceals the Cause of Such Action from the Knowledge of the Person Entitled Thereto.—If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the nelson entitled to bring the same discovers that he has such cause of action, and not afterward.</p> <p>4. Statutes—Who May File Bill under Section 25 of the Corporation Act.— Section 25 of tlie corporation act provides a remedy in the nature of a creditor’s bill, and is designed to aid creditors in the collection of their debts. It is not restricted to judgment creditors.</p> <p>5. Same—Liability of Stockholders under Section 25 of the Corporation Act,—Section 25 of the corporation act clearly authorizes the bringing of a suit in equity against a corporation and its stockholders jointly, upon the corporation ceasing to do business, leaving debts unpaid. It clearly contemplates liability of the stockholders, for the purpose of bringing suit against them, immediately on the company ceasing to do business, leaving debts unpaid.</p> <p>6. Same—Application of Term, “ After Exhausting the Assets of the Corporation" in Section 25 of the Corporation Act.—The exhaustion of the assets of the corporation is not a condition precedent to the bringing of a suit against the corporation and its stockholders jointly, because section 25 expressly authorizes such suit, and the exhaustion of the assets of the corporation is not made a condition precedent thereto. A stockholder is entitled to have the corporate assets, in possession of the corporation, applied to the payment of the corporation debts, before, in a suit against him and the corporation jointly, he can be decreed to pay anything. The meaning of the language is that in such a suit it must be ascertained, in the first instance, how far the corporate assets, if any, will go toward paying the claims of the complainant or complainants, which may be done by ordering a sale of such assets, when, if the proceeds of the sale are not sufficient to pay the claims, the defendant stockholders may be decreed to pay the deficit.</p> <p>7. Practice— When the Statute of Limitation Begins to Run, Where Two Remedies for theSame Relief Accrue at Different Times.—When there are two remedies, pursuing either of which a party may have the same relief, and the rights to the two remedies accrue at different times, the statute begins to run from the time when the right to pursue the earlier remedy accrues.</p>

Bill to Foreclose a Trust Deed.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in this court at the March term, 1902. Action to foreclose a trust deed. As to the rights of the original complainants, the holder of the indebtedness and the trustee in the trust deed, there is no contention. It is admitted that they are entitled to the relief prayed for, and that the rights of all other parties herein are subordinate.

<p>1. Injunctions—Issued Without Notice—Right of Objection.—It can not be objected that an injunction order was entered without notice, where the defendant had a hearing on the motion to dissolve the injunction.</p> <p>3. Same—Will Not Issue to Interfere with the Board of Trade While Regularly Engaged in an Investigation in Pursuance of Valid By-laws.—The courts will not interfere by injunction, where the Board of Directors of the Board of Trade are engaged in investigating charges made in a complaint of a member in pursuance of valid by-laws, and it is not averred that the board is proceeding irregularly.</p> <p>• 3. By-laws—Courts Will Not Interfere to Control Enforcement. —The courts will never interfere to control the enforcement of by-laws of associations, the members of which join voluntarily and bind them- • selves to abide by the rules and regulations of the association, where such by-laws infringe no public policy or rule of law, and are not unreasonable.</p> <p>4. Pleading—What a Motion to Dissolve an Injunction on the Ground of Insufficiency of the Bill Admits.—A motion to dissolve an injunction on the ground of the insufficiency of the bill admits no more than would a demurrer to the bill, and a demurrer admits only such facts as are well pleaded, and necessarily such as existed prior to or at the time of filing the bill.</p> <p>5. Same—Taken Most Strongly Against the Pleader.—A pleading must be taken most strongly against the pleader.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Joseph P. Robarts, Judge presiding. Heal'd in this court at the March term, 1902.

<p>Habeas Corpus.—Appeal from the Criminal Court of Cook County; the Hon. Edward F. Dunne, Judge presiding. Heard in this court at the March term, 1902.</p>

Bill to Foreclose a Trust Deed,—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in this court at the March term, 1902. In April, 1895, John J. -Leary owned certain real estate, subject to a deed of trust held by Knott & Lewis for $10,000, then maturing. For the purpose of paying off the $10,000 mortgage and other charges upon the property.

Assumpsit.—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. This is a suit in assumpsit, brought by appellee against Jesse C. Wheaton, appellant, also I. B. Jones and Harry Griffith, as copartners as Griffith & Company, upon a promissory note reading as follows : “ $900.00. Chicago, Nov. 1,1899.

Assumpsit, on a policy of life insurance. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge presiding. Heard in this court at the October term, 1901. November 2, 1888, Charles A. Vail received from appellant a life insurance policy in part as follows: Exhibit A. $5,000 policy of membership. No. 6261.

Bill to Enforce a Stock Liability of StockholdersAppeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Held: or the price they were to pay for the same; that all of said stock certificates contained the provision that they were full paid and not assessable; that except as to the said ten defendants there is no evidence showing whether they did or did not pay for their stock; that Eutan, April 7, 1894, assigned his interest in Johnson…

<p>Divorce.—Order for solicitors’ fees. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Mechanic’s Lien.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytkatjs, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Petition for Solicitors’ Fees.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>Assumpsit.—Appeal from, the Superior Court of Cook County; the Hon. Jesse Holdoh, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>1. Probate Courts — Appeals from, Are Tried De Novo.—Section" 11 of the act in regard to probate courts authorizes appeal from final orders, judgments and decrees of the Probate Court to the Circuit Court, and provides that upon such appeal thecase shall be tried de novo.</p> <p>2. Statutes—Section 117, GK. 3, R. 8., Construed.—Section 117, Ch. 3, R. S., in requiring a refunding bond, applies solely to cases where debts properly payable from the assets of the estate, inventoried or otherwise accounted for by the executor or administrator, may be exhibited within two years from the issuance of letters testamentary or of administration, and properly chargeable to the heirs, devisees or legatees to whom partial distribution may have been made.</p> <p>3. Administration of Estates—Refunding Bond After Expiration of Two Years Allowed by Statute for Exhibit of Claims.—After the two years allowed by the statute for exhibiting claims against the estate has expired, claims are barred, by the express language of the statute, as to all assets inventoried or otherwise accounted for by the executor. Consequently the requiring a refunding bond would be practically useless and of no effect, and the law does not. in such cases, authorize the court to require such bond.</p> <p>4. Same—Refunding Bonds.—The Circuit Court, on appeal from a judgment of the Probate Court has no more power in the premises than the Probate Court had, but it may not require a refunding bond when the two years provided by the statute has elapsed before the rendition of its judgment.</p>

Bill for an Injunction.—Appeal from an interlocutory order of the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in this court at the October term, 1902.

<p>Bill for an Injunction.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Bill for Partition.—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.</p>

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

<p>Mandamus.—Appeal from the Circuit Court of Cook County; the Hon. Marcus Kavanagh, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p> <p>This is a writ for mandamus to compel the town of Cicero to pay a judgment of $3,410.95, with interest and costs thereon recovered against it by the relators, Sackley and Peterson, on the 27th day of April, A. D. 1896.</p> <p>The petition alleges that relators made a written demand for the payment of said judgment; that appellant (the town) responded that there was no money in the fund to pay this judgment; that a new supplemental assessment had been spread to meet this demand; and that when said supplemental assessment was confirmed by the court and collected, the judgment and interest would be paid. Petition further alleges that said' judgment is a general judgment against said town, and payable out of the general fund of said town; or by means of a general tax, to be levied by said town; that said town has refused to pay said judgment or to make an appropriation therefor, and include the same in the tax levied by said town for the year A. D. 1901, as requested by petitioners, in January, 1901, although on said last named date said town had, and ever since that time has had, money on hand more than sufficient to pay said judgment, and legally applicable thereto.</p> <p>Petitioners then pray for a writ of mandamus to compel said town to pay said judgment and costs of this proceeding, and if it shall appear that said town has not funds legally applicable to the payment of said judgment, then that said town shall le\'y a tax for the payment of said judgment, etc.</p> <p>To this petition the town filed a plea, which plea denied that said judgmént was a general judgment against it; but averred that said judgment was obtained upon a contract made and entered into on the 11th day of June, A. D. 1890, by and between the town and petitioners, whereby the petitioners covenanted to do certain work therein specified for the improvement of Washington Boulevard, and the parties thereto agreed that said improvement should be paid for from special assessment, and also from the general fund of said town, so far as the same has been or may be assessed for its equitable proportion of the estimated cost of said improvement, and the petitioners agree to make no claim against said town under said contract, unless the assessment shall be declared illegal or be unreasonably delayed.</p> <p>The plea further avers that the equitable proportion of the cost of said improvement assessed against the town has been paid; that a special' assessment was levied upon the property benefited, but was not sufficient to pay in full for said improvement; that the town has begun proceedings for the levying of a supplemental assessment.</p> <p>To this plea petitioners filed a demurrer. Thereupon an order was entered sustaining the demurrer, and the said defendant electing to stand by his plea, the court found that said petition was true; that the said town then had in its treasury a cash surplus arising from the taxes for the fiscal year ending February 28, 1900, legally applicable to the payment of said judgment, and it thereupon ordered that a peremptory writ of mandamus issue against the said town and certain of its officers, commanding them immediately to pay to the petitioners their said judgment, and interest thereon from the date of its rendition, and costs of court.</p>

<p>Debt.—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>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

Assumpsit.—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. This was an action to recover damages for an alleged breach of the following contract by Mrs. McGregor Adams, now deceased, by reason of her having refused to take and pay for certain books in accordance with a written contract obtained from her by appellant’s agent, here set forth: “ Messrs.

<p>Attachment and Garnishment.—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>The facts of these two cases are presented in the following statement:</p> <p>James A. Edwards instituted a garnishment proceeding in the Superior Court for the purpose of collecting an alleged judgment against George B. Johnson, a member of the board of trade, for the sum of $916.22 and costs. He summoned as garnishee, Albert B. Booth, a broker and member of the board of trade. The writ was served on Booth March 20, 1900. March 26, 1900, appellee, Allan C. Story, brought a suit in attachment in the Circuit Court against DuBuyter and summoned as garnishee said Booth. The writ in the attachment proceeding was served March 26, 1900. The funds sought to be reached by the attachment suit and the garnishment proceedings are the same, and consist of the proceeds arising from the sale of Johnson’s membership in the board of trade to said DuBuyter. In November, 1900, Edwards was served with summons issued in the attachment suit directed against himself and Johnson, impleaded with DuRuyter. On November 19, 1900, Edwards, in the attachment suit, filed an intervening petition setting up the recovery of the judgment against Johnson, the issuance and return of execution thereon, and the record of the garnishment proceedings, and asserting a prior lien and right to the money in controversy. To this petition Story filed a general traverse.</p> <p>The two proceedings were heard and tried as one cause; a jury was waived and issues submitted to the court. A finding and judgment were entered in favor of Story, plaintiff in the attachment, and against the defendant DuRuyter, and garnishee, Booth, for $1,448, and against Edwards for costs, and an order entered dismissing the intervening petition, from which judgment appellants have prosecuted a separate appeal.</p>

<p>Mandamus.—Error to the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>1. Receivers—Appointment Pendente Inte a Matter of Discretion. —While it is true that the appointment of a receiver pendente lite is a matter of discretion, it is not a matter of arbitrary discretion. Facts must exist and be made to appear to the court warranting the exercise of the power and justifying the taking into its possession of the property in controversy. It is essential that the complainant should show, first, either a clear legal right in himself to the property in controversy, or that he has some lien upon it, or that it constitutes a special fund out of which he is entitled to the satisfaction of his demand, and secondly, it must appear that possession of the property was obtained by the defendant through fraud, or that the property itself or the income from it is in danger of loss from the neglect, waste, misconduct or insolvency of the defendant.</p> <p>2. Same—What Plaintiff Must Show.—The plaintiff must show a case of adverse and conflicting claims to the property and must also show some emergency or danger of loss demanding immediate action, and that his own right is reasonably clear and free from doubt. If the dispute is as to title only, the court very reluctantly disturbs possession by the appointment of a receiver. Insolvency of the defendant will not alone warrant a court in appointing a receiver. It must also appear that the plaintiff has a probable cause of action against the defendant and that the benefit to result from his recovery will either be wholly lost or substantially impaired by reason of such insolvency, unless a receiver is appointed.</p> <p>3. Same—Court of Equity Proceeds with Caution Against a Defendant in Possession.—As against a defendant in the possession and enjoyment of real property, which is the subject-matter of litigation, a court of equity always proceeds with extreme caution in appointing a receiver.</p> <p>4. Same—Appointment Must be Necessary to Preserve Some Particular Property for Such Parties as Shall be Entitled to the Benefit Thereof.—A receiver should be appointed in no case unless it is made to appear that there is an imperative necessity for the step to preserve some particular property for such parties as shall be entitled to the benefit thereof.</p> <p>5. Same—Where Party in Possession is Insolvent and Plaintiff’s Claim is Not Clear.—When a plaintiff’s claim to real estate is not clearly made out, a receiver will be refused when the only reason urged for the appointment 'is the insolvency of the party in possession.</p> <p>6. Same—Power of Appointment Should be Cautiously Exercised.— The power of appointing receivers over real property for its better protection and to secure the rents and profits pendente lite is regarded as an extremely delicate branch of equity jurisdiction and one whose exercise should be guarded with the utmost caution. Courts are extremely averse to any interference in limine with the possession of real estate by a defendant claiming under legal title; and equity will interpose a receiver as against such possession only in cases of great emergency, the general rule being that conflicting questions of title should be determined in courts of law.</p> <p>7. Same—As Against One in Possession—When One Will be Appointed.—In actions affecting the title to real property a receiver, as against one in possession, will be appointed only in behalf of one having an acknowledged interest or when there is a strong probability of his ultimate recovery.</p>

Trespass, quare clausum fregit.— Three cases consolidated. Appeals 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>1. Appellate Court Practice—May Always Consider the Sufficiency of the Evidence to Support the Verdict.—The sufficiency oí the evidence to support the verdict is always a proper subject for the consideration of this court, and if it finds the evidence is not sufficient to authorize the judgment, it is the duty of the court to reverse on that ground, and a performance of this duty is absolutely essential for the preservation of rights, where the judgments of this court are final and conclusive upon all questions of fact.</p> <p>2. Instructions—Where Evidence upon Which a Recovery is Ashed is Slight.—Where the evidence upon which a recovery is asked is slight or doubtful, the jury should be fully and correctly instructed on all questions of law.</p> <p>3. Same—Where Evidence is Evenly Balanced.—An instruction that if the evidence in the case is evenly balanced as between the contention of the plaintiff and that of the defendant on the material issues the jury should find the defendant not guilty, is properly given where, under the pleadings, evidence, and instructions as given, the jury could not have been mistaken as to what the material issues were.</p>

<p>Assumpsit, on a policy of life insurance. Appeal from the Circuit Court of Cook County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p> <p>This was an action of assumpsit brought to recover the amount of an insurance policy issued upon the life of Nicholas Meister.</p> <p>Nicholas Meister came to his death June 14, 1894, by suicide. The cause of his death is not urged as a defense to the action; that insisted upon as a reason why appellee is not entitled to recover upon the policy is that Meister was not in good standing at the time of his death, because he had failed to pay certain assessments made upon him, and because of such failure had been, in accordance wTith the policy and by-laws of the lodge, ipso facto suspended.</p> <p>It is conceded that if payment of assessments had not been made, by the fact of non-payment a suspension took place, and no recovery can be had in this action. It is insisted by the defendant that there was a failure to make formal proofs of death, to which the plaintiff replies that such formal proof was waived by the denial of liability by the lodge. The case has been twice tried; from the judgment first obtained by the plaintiff an appeal was taken to this court, the judgment being reversed because of the insufficiency of the declaration. Thereafter an amended declaration was filed, another trial had, from the judgment obtained by the plaintiff in which, the appeal now under consideration was taken.</p>

Assumpsit.—Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Jr Ige presiding. Heard in the Branch Appellate Court at the October term, 1901.

Trespass on the Case.—Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding. Heard in this court at the March term, 1902. Plaintiff in error filed a praecipe in an action on the case against the defendant in error November 20, 1900. • A summons was issued the same day, but was never served.

<p>Assumpsit, for attorney fees. Appeal from the Superior Court of Cook County; the Hon. Robert B. Shirley, Judge presiding. Heard in this court at the March term, 1902.</p>

<p>1. Statutes—Par. 53, p. 1116, Hurd's Stat. 1901, Applies Only to Money Demands.—Par. 53, Hurd’s Stat. 1901, p. 1116, applies only to money demands of a plaintiff against which money demands may be set off, and to cases in which the jurisdiction of the justices may be measured by the statutory limitation of $200.</p> <p>2. Forcible Detainer—Defendant Can Not Set TJp Any Gross-Demand.—A defendant in forcible detainer can not set up any cross-demand of any kind to the action, nor does the statutory limit of jurisdiction apply to actions of forcible detainer before justices. It is immaterial to the jurisdiction-how valuable the land may be, possession to whicli is claimed, or how high the rent. The justice has jurisdiction by virtue of the statute, without regard to the value of the fee or the rental value.</p> <p>3. Election—Inconsistent Remedies Must be Co-existent.—It is essential to the application of the doctrine of election, that the inconsiatent remedies must have been co-existent. Both remedies must have existed at the time of resort to one of them.</p>

<p>1. Specific Performance—Relief is Within the Discretion of the Court.—Relief, by way of specific performance, is a matter within the discretion of the court, and will not be granted unless the party seeking it acts as promptly as the nature of the case will permit.</p> <p>2. Same—Of an Agreement to Organize a Corporation.—Equity will not decree the specific performance of an agreement to organize a corporation when three of the four proposed incorporators are insolvent.</p> <p>3. Same—Equity Will Enforce Contract in All Its Parts.—Equity, when it takes jurisdiction to enforce the specific performance of a contract, will enforce it in all its parts, and will not undertake such enforcement where the contract calls for a succession of acts whose performance can not be consummated by one transaction, and which requires protracted supervision.</p> <p>4. General Incorporation Act—Intention is that Subscribers to Capital Stock Should Be Persons of Financial Responsibility.—The clear intention of the incorporation act of this state is that subscribers to the capital stock of a corporation should be persons of financial responsibility, and a court of equity should be slow to exercise its discretion in enforcing specifically an agreement to incorporate which provides that three-fourths of its capital stock should be subscribed by persons who are insolvent.</p>

<p>1. • Written Instruments—Construction, Where There is an' Obvious Mistalce 3Iade on the Face of the. Instrument.—A court of law may, when there is an obvious mistake made on the face of the instrument, which is corrected by other expressions therein, construe it according to the evident intent of the parties, as manifested by all the language used.</p>

<p>1. Fixtures—Pass by Deed of Land to Party Without Notice of Agreement Between Grantor and Lessee.—The tenant of land entered into an agreement with the landlord whereby the tenant should either receive a fair consideration for a certain covering and stalling which he had erected upon the land, or should have a reasonable time within which to remove it. The landlord afterward deeded the land to a party who had no notice of the agreement. Held, that the covering and stalling passed with the land.</p> <p>2. Practice—Where the Master's Finding Has Been Approved by the Chancellor.—Where the finding of the master who saw the witnesses and heard their testimony has received the sanction of the chancellor, it should not be disturbed unless clearly and palpably wrong.</p> <p>3. Interest—When Recoverable.—Where defendants’ action is a virtual appropriation of plaintiff’s property, they are liable for the value thereof from the date of its appropriation, with interest, the latter being in the nature of damages.</p> <p>4. Landlord and Tenant— Trade Fixtures Must Be Removed on or Before the Expiration of the Lease.—Unless trade fixtures are removed by the tenant on or before the expiration of his lease, they become a part of the realty.</p>

<p>1. Appellate Court Practice— Verdict Manifestly Againsf the Weight of the Evidence.—A verdict manifestly against the weight of the evidence will be reversed.</p>

Bill for ail Injunction.—Appeal from the Circuit Court of Cook County: the Hon. Oliver H. Horton, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. This is an appeal from an interlocutory order granting an injunction.

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Elbeidoe Hanecy, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.</p> <p>This is an appeal from an interloctury order of the Circuit Court of Cook County, granting a temporary injunction without notice.</p> <p>The bill of complaint, filed by the appellee, alleges that the Monarch Book Company for several years has been and is now engaged in the business of manufacturing, publishing and selling at wholesale, popular subscription books, and that it was incorporated under the laws of the State of Illinois, May 25th, A. D. 1894; that its present place of business is in Chicago, with a branch office in Philadelphia; that its business is carried on by means of agencies established in every state and territory of the United States; that during .the year it employs thousands of local canvassers; that it was the first to use the word Monarch in connection with any firm or company engaged in selling books; that the word Monarch in the book business has an arbitrary meaning, and is not descriptive, but has become exclusively identified with the books and publications of appellee; that it now has a reputation with the people of the United States as a book publishing concern for honesty and fair dealing; that it has expended a very large amount of money in advertising its name as a house publishing and selling books; that it has a paid-up capital and assets of $100,000 and a surplus of $75,000, while the alleged capital of appellant is $10,000, and will consist, as appellee is informed, of the assets of J. H. Moore & Company, an unsuccessful concern; that the name Monarch Book Company appears upon each one of its own publications; that appellant with other persons has conspired to deprive the appellee of the profits that had accrued to it and which would fairly be earned by it by reason of such a large expenditure of money, and with intention of taking advantage of the reputation earned by the Monarch Book Company and of deceiving and misleading the public into believing that the Monarch Book Company had established a wholesale branch of its own business under the title of “ Monarch Wholesale Company,’? and meaning and intending to engage in an unfair and unlawful competition in trade with the Monarch Book Company. Appellants, on or about March 13, 1902, made an application to the Secretary of State of Illinois for incorporation under the laws of the State of Illinois, under the name of “ Monarch Wholesale Company;” that the purpose and object of said Monarch Wholesale Company, as stated in their application for incorporation, is to print, bind, publish, buy, sell and advertise books, periodicals, pamphlets and papers, and carry on a general publishing business; that the name of the said proposed corporation has been adopted to mislead the public; that appellee believes that great confusion will arise at the postoffices in the delivery of letters or other mail addressed to the two companies; that if appellant and his associates are permitted to effect the incorporation of their company, great and irreparable loss and damage will accrue to the Monarch Book Company, which can not be adequately compensated by money damages.</p> <p>Prayer is for perpetual injunction restraining “ defendants ”• and each of them from completing said proposed incorporation or from using the name “Monarch Wholesale Company ” as a firm or copartnership, or from using the name “ Monarch ” in connection with the publication or sale of books, or holding themselves out as in any way connected with the Monarch Book Company; and that the said “ defendants ” be likewise restrained in like effect while this cause is proceeding to final decree. Motion for an injunction was heard on the bill and the order for a writ of injunction thereupon was issued.</p>

Bill to Cancel a Lease.— Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901. Held: and which opinion unquestionably was an important factor in the mind of Fitzgerald and tended largely to influence him in the making of the lease.

<p>1. Passenger Elevators—Liability of Person Operating is the Same as That of a Common Carrier.— It is the settled law in this state that the liability of a person operating a passenger elevator is the same as that of a common carrier. Persons operating elevators for raising and lowering persons in buildings are carriers of passengers and subject to the same rules applicable to other carriers of passengers. It is the duty of such carrier of passengers, upon the ground of public policy, to use extraordinary care in and about the operation of such elevators so as Co prevent injury to persons therein.</p> <p>2. Same—Happening of Accident Raises a Presumption of Negligence.-—The happening of an accident to a passenger during the course of his transportation raises a presumption that the carrier has been negligent. The burden of rebutting this presumption rests with the carrier.</p> <p>3. Pleading—Not Necessary that the Declaration Should Describe Injuries as Permanent.—It is enough that the declaration shows the injury received, without describing it in all its seriousness, and the recovery may be to the whole extent of the injury. The permanency of plaintiff’s injury is merely evidence to be considered by the jury in determining its severity.</p> <p>4. New Trials—Character of Newly Discovered Evidence.—To warrant a court in setting aside a verdict, the newly discovered evidence must be such as ought on another trial to produce an opposite result on the merits.</p> <p>o. Same—Where Newly Discovered Evidence- is Merely Cumulative. —Where newly discovered evidence is not conclusive in its character, but is merely cumulative and contradictory of other evidence, or in its nature impeaching, it affords no ground for a new trial.</p>

Bill for an Injunction,—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901. The bill was filed in this case by appellant and others to enjoin Consumers Company from completing a building. on Sixty-second street near Madison avenue in Chicago.

<p>Trespass on the Case.—Death from negligent act. 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>This is an appeal from a judgment in a suit brought by the administrator of Thomas Mann, deceased, to recover loss sustained by his widow and next of kin on account of his death, which is said to have been caused by appellant.</p> <p>The declaration states that the deceased, being a switch-man in the employ of the Chicago Terminal Transfer Railroad Company, on the 6th -of April, 1900, while engaged in his work for such company, was standing in such proximity to appellant’s track that an engine belonging to it could not be run by him without striking him; that appellant, knowing the perilous condition of said Thomas Mann, then and there recklessly, willfully and wantonly backed its engine along its track without giving any warning of its approach by ringing a bell, contrary to an ordinance of the city of Chicago, and by reason of said negligent and willful act of the defendant, the said engine ran against the deceased and thereby injured him so that he died.</p> <p>The second count of the declaration charges that appellant, knowing the danger of the deceased, recklessly, wantonly and willfully started up and backed its engine along its track upon and against the deceased, whereby he was run over and so injured that he died.</p> <p>The third count is much like the first, except it charges that the engineer of appellant saw the deceased in a perilous position, and by ordinary care could have avoided injuring him, but negligently failed to do so. As a result of the trial there was a verdict and judgment for the plaintiff for $5,000.</p> <p>Upon the trial it appeared that in the yard where the deceased was working were tracks of several railroad companies, among them that of the Chicago Terminal Company and that of appellant; that a short time before the deceased was struck he had thrown a switch on the tracks of the terminal company, that switch being between the terminal track and the track of appellant; that after he threw the switch he stepped back, that is, stepped westward toward the east rail of appellant’s track and Looked toward the northeast. He seems then to have taken a book out of his pocket and to have been struck while making some memoranda therein, probably the number of an engine which had passed. In so stepping back he came so near to appellant’s track that its engine proceeding northward struck him, inflicting injuries from which he died. The space between the tracks of the terminal company and those of appellant at the place where the deceased was when injured, was between ten and eleven feet, and there was no mark or line showing the division between appellant’s grounds and those of the terminal company.</p> <p>Appellant contends that the deceased stepped back so close to its track that he was struck by its engine proceeding northward, and that such stepping back was just before the engine reached him, and when its engineer, running its engine, it proceeding backward, could not see him from the cab in which he stood operating his engine. The fireman attached to appellant’s engine was not on it at the time of or immediately before the injury.</p> <p>Appellant introduced evidence tending to show that the construction of its engine was such that when its engineer stood in his proper place therein, it proceeding backward, he could not see a person upon its track in front of the direction in which it was going, if he were nearer than seventy feet from such engine; that when its engineer saw deceased he was from 150 to 200 feet from the engine, going northward, as was the locomotive, and that at that time he was between its track and that of the terminal company, and thus in a place where, had he remained, appellant’s engine proceeding northward would have passed without injury to him.</p> <p>There was a sharp conflict in the testimony as to whether the bell upon appellant’s engine was ringing as it proceeded northward and when it struck the deceased. An ordinance of the city requires that the bell of each locomotive engine shall be rung continually while running within the city.</p>

Bill for Specific Performance.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.

<p>1. Instructions—Declaring Liability or Freedom from Diability.— Any instruction by which the court assumes as a matter of law to direct a verdict for either party or to declare the liability, or freedom from liability, of either party in the action, must embrace all the evidence which, under the pleadings and the evidence, are essential to a verdict.</p> <p>2. Same—Referring to Case as Alleged in the Declaration.—It is the duty of the trial court to point out what are the issues of fact which the jury are to try. A mere reference to the declaration as containing a statement of the plaintiff’s case, is not a pointing out of either the issues to be tried or the plaintiff’s case. The giving of such an instruction is error.</p> <p>3. Street Railroads—Superior Right to Portion of Street Occupied by Tracks.—The interests of the public require that the cars of a street railroad shall not be unreasonably delayed by the conduct of others using the street. For this purpose and to this extent the general right of the company over that portion of the street where the tracks lie is superior to that of other persons using the streets.</p> <p>4. Damages—Plaintiff Not Entitled to Damages for Mere Humiliation or Mental Annoyance.—In an action predicated upon negligence to recover for personal injuries thereby sustained, a plaintiff is not entitled to damages for meré humiliation or mental annoyance which he may suffer on account of bodily injuries. Instructions stating the elements of suffering or loss on account of which a plaintiff is entitled to recover should not be so drawn as to include mental humiliation.</p>

<p>Debt, on a lease, for breach of covenant. Appeal from the Circuit Court of Cook County; the Hon. Marcus Kavanagh, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>Bill to Foreclose.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p> <p>This is an appeal from a decree of foreclosure upon three mortgages, given by appellant herein and one Thore Tollakson. now deceased. Each separate mortgage secured a promissory note for $6,000, each note bearing interest respectively at five per cent per annum, executed by the same parties. Before default had occurred upon the notes, or any of them, the mortgagors sold and conveyed the land covered by the said mortgages to one Carson, who assumed and agreed to pay the notes secured thereon. Afterward, one of the makers of the notes, the said Thore Tollakson, died. A third portion of the indebtedness has been paid, and a corresponding portion of the land was released from the lien of the mortgagees. Default having been made in payment of the remaining debt and interest, appellee filed her bill to foreclose and obtained a decree from which this appeal is prosecuted.</p>

<p>1. Witnesses—Should be Permitted to Testify to the Facts Only.— Witnesses should be permitted to testify to the facts only, and not to any conclusion that they may deduce from these facts, except in the case of experts, where tiie jury can not be presumed to have the same opportunity to form a correct conclusion as the expert witness.</p> <p>2. Negligence—Servant Assuming Obvious Dangers.—Where a servant places himself in an obviously dangerous position, or in a position which in the exercise of reasonable care for his own safety would have been obviously and .plainly dangerous to him, then it is negligence on his part to have placed himself there.</p> <p>3. Instructions—Plaintiff Adopting an Extra Hazardous Method. —An instruction that if the plaintiff took hold of a rail, the place of danger, instead of taking hold of some other object, if he could have done so with safety to himself, then voluntarily selecting a way known by him tp be dangerous is negligence on his part, is proper. A party has no right knowingly to put himself in a place of danger which he could have avoided, and in such case, although he exercised every conceivable care in so doing, his injury would result from his voluntary act.</p> <p>4. Master and Servant—Servant Wantonly Selecting the More Hazardous of Two Methods.—Where an employe has the power to adopt his own' methods of doing work, and he, wantonly, knowing and appreciating the dangers of both, selects of the two ways the more dangerous, he does so at his. peril and can not recover for any injury resulting from such relation.</p> <p>5. Pleading—It is Not Necessary to Charge in Specific Terms a Duty.—Under the rules of pleading it is not necessary to charge in specific terms a duty, but if facts are averred out of which the duty springs, the declaration is sufficient. An averment that certain conduct is the duty of defendant is of no avail where facts are not stated from which the law will create the duty.</p>

<p>1. Corporations—Can Not Be Deprived of Property Without a Hearing.—A court has no jurisdiction to deprive a company of its property and dissolve it when the company is not present to defend itself. All bodies should be allowed the privilege of being present at their own dissolution.</p> <p>2. Same—What Must Be Shown to Establish a Corporation De Facto.—Two things are necessary to be shown to establish a corporation de facto, viz: 1. The existence of a charter or some law under which a corporation with the powers assumed might be lawfully created. 2. A user by the party to the suit of the rights claimed to be conferred by such charter or law. If the law exists and the record exhibits a bona fide attempt to organize under it, very slight evidence of user beyond this is all that can be required.</p> <p>3. Same—For What Purpose They May Be Formed.— Corporations may be formed for pecuniary profit under our general act, “for any lawful purpose except banking, insurance, real estate brokerage, the operation of railroads and the business of loaning money.”</p> <p>4. Same—How the Question of Legal Organization May Be Determined.—Whether a company which claims to be incorporated has been legally organized, may be ascertained by scire facias or an information in the nature of a quo warranto at law. The legal existence of a corporation can not usually be inquired into collaterally, where there has been a bona fide attempt to create a corporation and an exercise of corporate powers, especially by parties who have dealt with the corporation as such.</p>

<p>1. Garnishment—Chap. 62, Sec. 4 R. S.—The statute provides chat the person for whose use a garnishee summons is issued shall advance through the constable to the person summoned as garnishee, $1, and in addition five cents per mile for each and every mile of necessary-travel to and from the office of the justice of the peace, and the constable making such service shall show by his return the fact of the payment of such fee and mileage.</p> <p>2. Same—When Person Summoned as a Garnishee Fails to Appear. —Chap. 62, R. S., provides that “ when any person shall have been summoned as a garnishee by any justice of the peace and shall fail to appear, the justice of the peace may enter a conditional judgment against such garnishee for the amount of the plaintiff’s demand, and thereupon a scire facias shall issue against such garnishee returnable within the same time as other summonses from justices of the peace, commanding such garnishee to show cause why such judgment should not be made final. If such garnishee, being served with process or notified as required by law, shall fail to appear, the justice of the peace shall confirm such judgment, to the amount of the judgment against the original defendant, and award execution for the same and costs.</p> <p>3. Certiorari—Officer's Return as to Service is Conclusive.—Where the return of the officer as to service is regular, it is conclusive in certiorari, and the defendant can not excuse a failure to appeal on the ground that the summons was not in fact regularly served.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heard in this court at the March term, 1902.</p>

Bill for Foreclosure.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the March term; 1902. March 17, 1890, appellee Wrightman made a loan from the Mechanics & Traders’ Savings, Loan and Building Association for $2,100 on twenty-one shares of its stock at a premium of twenty per cent, with interest at eight per cent per annum. The premium was deducted from the loan.

<p>1. Appeals—Only Persons Who Were Parties to the Judgment Appealed from Need be Summoned.—In perfecting an appeal it is necessary to bring before the Circuit Court only those persons who were parties to the judgment appealed from.</p> <p>2. Practice—Where But One Partner Has Been Served in a Suit Brought upon a Joint Obligation.—Where but one of the partners has been served in a suit brought upon a joint obligation, the others not appearing, judgment may be taken against the partner who is served, and the others may be afterward brought in by seire facias.</p> <p>3. Promissory Notes—Duty of Maker to Take up Sis Paper.—It is the duty of the maker of a promissory note, not payable at a particular place, to find his paper and take it up.</p> <p>4. Same—When Demand of Payment is Necessary.—A demand of payment of a promissory note is necessary only to fix the liability of an indorser or of a surety.</p> <p>5. Same—Made Payable at a Particular Place—Demand.—If a promissory note is made payable at a particular time and place, it is not necessary to aver or prove a demand at the place in order to recover.</p> <p>6. Instructions—razing the Jui'y They Should Consider the Evidence '‘In the Light of the Knowledge Which You Save Obtained as Men of Affairs.”—An instruction which tells the jury that they should consider the evidence “ in the light of the knowledge which you have obtained as men of affairs ” is abstract. It does nothing more than to tell the jury to do what they could not honestly refrain from doing— that is, to use their common sense and experience.</p> <p>7. Witnesses—The Question Put to the Witness Called to Impeach Another Should be Substantially Identical with the Original Question. —In common fairness to a witness whom it is attempted to impeach by showing that at another time and place he stated what on his examination he declares he does not remember, the question put to the witness called to show such statement should be identical, or at least substantially identical, with the original question.</p>

<p>1. Instructions—Party May Have the Jury Instructed as to the Issues and the Law Bearing upon His Theory of the Case.—A party has a right to have the jury instructed as to what the issues are and the law bearing upon his theory of the case, if there is evidence tending to sustain such theory.</p>

<p>Bill to Foreclose a Chattel Mortgage.—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>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Elbridqe Haneoy, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>Bill for an Accounting.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p> <p>Appellant filed in the Circuit Court his bill for an ascertainment of the state of and right to the assets of the partnership once existing between him and appellee, Albert Zacharias.</p> <p>The bill having been answered the cause was heard upon the following stipulation of facts:</p> <p>“ It is stipulated by the parties to this suit that this cause be tried upon the facts hereinafter stated, and upon none others, and that not only upon hearing of this cause in the Circuit Court, but also in the Appellate and Supreme Courts the following, and the following only, shall be taken as and for the facts of the case:</p> <p>I. On November 5, 1891, Franz J. Weber and Albert Zacharias entered into a partnership in the saloon business, without any written articles of copartnership, but Weber paid Zacharias $1,000 as a purchase price of a half interest in said saloon business and all assets thereof, and received from Zacharias a bill of sale for said half interest, dated November 5, 1891, and in the usual form.</p> <p>II. After his entry into partnership, Weber ascertained that Zacharias was indebted to a number of persons, including Metzger, Crocker and itindskopf, and that the creditors were clamoring for the amounts due them, and made demands upon Zacharias and Weber for the payment thereof.</p> <p>III. The stock, fixtures, etc., of the business were subject to a chattel mortgage of $850 to the Northwestern Brewing Co., mortgagee, executed and acknowledged by Zacharias, and recorded, of which mortgage Weber was informed prior to his purchase of his half interest.</p> <p>IV". On November 16, 1891, Zacharias executed and delivered to Weber a second bill of sale of his remaining half interest in the business, for the expressed consideration of $2,000; but that in the proceedings hereinafter mentioned it has been judicially determined that there was no consideration for said transfer, but that the same was made by Zacharias for the purpose of hindering and delaying Zacharias’ creditors, and that the transfer was fraudulent and void at law.</p> <p>V. On November 21, 1891, judgments were rendered against Zacharias, in favor of Samuel Rindskopf in Circuit Court, $694.50 and costs; in favor of Wilford D. Crocker in Superior Court, $250 and costs; in favor of Charles H. Metzger in Superior Court, $138.02 and costs; and executions issued thereon and were delivered to the then sheriff of Cook county, who, by his deputy, levied the same upon the partnership interest of Zacharias in fixtures, stock, etc., of said copartnership, on the same day.</p> <p>VI. On November 24, 1891, Weber sued a writ of replevin out of Circuit Court,'against sheriff, and thereby secured possession of all the property of the partnership; the replevin suit was non-suited by Weber.</p> <p>VII. On November 27, 1891, Weber sold all assets of said business, including fixtures and stock, to one Eack, for $2,800, and that by request of the purchaser Zacharias joined in the bill of sale; out of the proceeds of sale Weber paid the mortgage, rent and other partnership debts,leaving in his hands, as the net proceeds of said sale, $1,383, which sum was deposited with August Lenzen as security to indemnify him from liability as surety on the replevin bond given in said replevin suit.</p> <p>VIII. A writ of retorno habendo was ordered issued in the replevin suit when the non-suit was entered; afterward the coroner brought suit upon the replevin bond given to him in the replevin suit, against Weber, the principal thereon, and August Lenzen and Martin Bock, securities thereon; that said suit was prosecuted and defended on both sides as diligently as the state of the calendars of the court would permit and was tried December 9, 1896, and resulted in a verdict of debt, $3,000, and damages one cent. The verdict was set aside and a new trial granted. On November 30, 1898, the case was tried again, but by the court, without a jury, and judgment was rendered for$3,000 debt, and $1,383 damages, debt to be discharged on payment of damages and costs; from this judgment Weber and his sureties appealed to the Appellate and Supreme Courts, in each of which the judgment was affirmed.</p> <p>IX. On December 2, 1898, at the term at which judgment was rendered in the Circuit Court, the order recited in the bill of complaint and found on Abst., p. 4, Rec., p. 26, ante, was entered by the Circuit Court in said suit on said replevin bond.</p> <p>X. On January 2, 1901, a'certified copy of the order of affirmance of the Supreme Court was filéd in the Appellate Court, and a certified copy of the latter court’s order of affirmation was filed in the Circuit Court in said action of debt and thereupon an execution issued out of said Circuit Court to E. J. Magerstadt, sheriff of Cook county, against Weber and his sureties for $3,000 debt and $1,383 damages, and costs; that the interest due thereon is $Í51.35, and that the Supreme, Appellate and Circuit Court costs in said cause amount to $30.90; and that the amount, therefore, due upon the said judgment, including interest and costs to date, is $1,565.25; that said execution is now in the hands of Henry Spears, a deputy of Sheriff Magerstadt, and is about to be enforced by levy upon the real and personal estate of Weber and his sureties. But complainant does not admit that the defendants are entitled to interest.</p> <p>XI. A reference of this cause to a master to state an account is waived by all parties, and it is agreed that this suit be determined as though upon a reference and accounting it had been determined; that at the date of the levy of the execution aforesaid, and at the date of sale of the partnership assets, the interests of Weber and Zacharias in the partnership were equal, and that each of them, except for the sale and levy, would have been entitled to one-half of the property or one-half of the proceeds thereof.</p> <p>XII. It is intended hereby to state an account between the said former copartners, in order to avoid the expense and delay necessitated by having an account stated by a master.</p> <p>XIII. After November 27, 1891, the date of the sale to Back, the partnership did no further business, nor did Weber and Zacharias transact any further business together; no suit for a dissolution of the partnership was brought by either party, after its formation, nor after the sale, until this bill was filed January 2, 1899; nor was any suit in equity or action of any sort brought against the sheriff or coroner or the judgment creditors aforesaid, for any relief, either legal or equitable, after the levy of the execution on November 16, 1891, except the replevin suit, until the filing of this bill.”</p> <p>At the hearing appellees insisted that the bill could not be maintained, urging that more than five years had elapsed since the termination of said partnership and the winding up of all its business by a sale, and conversion into money, of all its assets, which sale and conversion was had more than five years prior to the filing of the bill in this case.</p>

<p>Trespass on the (Jase.—Death from negligent act. 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>1. Instructions—Apparent Intelligence or Lade of Intelligence of Witnesses.—An instruction that the credibility of the witnesses is a question exclusively for the jury; and the law is that where a number of witnesses testify directly opposite, to each other, the jury are not bound to regard the weight of the evidence as evenly balanced, merely because of numbers; the jury have a right to determine from* the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or lack of intelligence, and from all the surrounding circumstances appearing on the trial, which witnesses are the. more worthy of credit, an'd to "give them credit accordingly, is proper.</p> <p>2. Same—Testimony of Husband in Behalf of Wife.—Am instruction that, under the law of this state, a husband is a competent witness to testify in behalf of his wife in a suit brought by the latter for personal injuries alleged to have been sustained by the wife, that if the testimony of the husband appears to be fair, is not unreasonable, and is consistent with itself, and the witness has not been in any manner impeached, then you have no right to disregard the testimony of such a witness, merely from the fact that he is related by marriage to the plaintiff in the case, is proper.</p> <p>3. New Trials—Will Not be Granted for Purpose of Impeachment. —A new trial will not be granted for the purpose of introducing evidence by way of impeachment, merely.</p>

<p>1. Mandamus—There Must be a Clear Case.—In a mandamus proceeding, where the right of the relator to the writ is doubtful or where there is a substantial doubt as to its being the legal duty of the respondent to perform the act, the writ will not issue. The remedy by man - damns rests upon the legal rights of the relator and upon the legal obligations and duties of the respondent. It can not be predicated solely upon equities existing between the parties.</p> <p>3. Same—Equitable Defense Can Not be Set Up as Against a Plain Legal Right.—In a proceeding for mandamus a purely equitable defense can not be set up as against a plain legal right.</p> <p>3. Lis Pendens—Three Things Essential to the Doctrine.— Three things are essential to the doctrine of lis pendens: First, the property must be of a character to be subject to the rule of lis pendens; second, the court must have jurisdiction, both of the person and the res; third, the res must be sufficiently described in the pleadings.</p> <p>4. Same—Defined.—As a general rule lis pendens is, in law, notice of any fact averred in the pleadings pertinent to the matter in issue or the relief sought, and of the contents of exhibits filed and made a part of the pleadings; but in order that the notice may attach, the property involved must be so pointed out in the proceedings as to warn the public that they intermeddle therewith at their peril.</p> <p>5. Same—Does Not Apply to Sales of Stock.—Although the doctrine of lispendens does extend sometimes to personal property under certain actions concerning the samé, it does not apply to sales of shares of stock had during the pendency of a suit concerning the same.</p>

<p>Bill for Dissolution of a Corporation.—Error to the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. Voluntary Assignments—Ab Other Court Can Interpose When the Jurisdiction of the County Court Has Once Attached.—In the matter of voluntary assignments, when the jurisdiction of the County Court has once attached, no other court has the right to interpose, for the purpose of adjusting any claims with respect to the property assigned or of administering the insolvent’s estate, except, perhaps, under special circumstances a court of equity may intervene to prevent a failure of justice. In cases of concurrent jurisdiction the court which first obtains it will have precedence.</p> <p>2. Same—Assignee is a Trustee for Creditors.—Under a voluntary general assignment for the benefit of creditors the assignee becomes a trustee for the creditors and the assignment creates a trust relation.</p> <p>3. Same—Degree of Care to he Exercised hy Assignee.—All that the law requires of the assignee is that he use ordinary and reasonable diligence in the execution of his trust. If any portion of a stock in his cave is stolen he will not be responsible for the loss, unless it can be shown that it was through his culpable negligence.</p>

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