Volume 106 — Illinois Appellate Court Reports

<p>1. Presumptions—As to Knowledge of the Law.—A party is conclusively presumed to have knowledge of the law.</p> <p>2. Foreign Statutes—Will Not be Enforced When Demands of the State Have Been Satisfied.—The courts of this state will not enforce the revenue laws of another state, where the demands of that state have been satisfied.</p>

<p>Assumpsit.—Error to the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>1. Chancery Practice—Taxation of Costs a Matter of Discretion with the Court.—The taxation of costs in a chancery proceeding is usually a matter of discretion with the court.</p>

<p>1. Practice—Where, Because of Incomplete Records, the Court is Unable to Determine Whether the Trial Court Erred.—Where, because of the incompleteness of the records, this court is unable to determine whether the trial court erred in making the order it did, the order may be affirmed or the appeal dismissed.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this court at the March term, 1902.

Bill for the Foreclosure of a Mortgage.—-Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the March term, 1902. This is a bill for the foreclosure of a mortgage.

<p>Assumpsit.—Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Russell P. Goodwin, Judge presiding. Heard in this court at the March term, 1902.

<p>1. Mechanics’ Liens—Requirements of Act of 1895.—The actof 1895 requires that the times for completion and for final payment shall be fixed by the contract, and such requirement applies equally to written and unwritten contracts.</p> <p>2. Same—Construction of Sec. 3 of the Act of 1874.—The phrase “ within one year from the commencement of the work or delivery of the materials ” in Sec. 3 of the act of 1874 means the same as if the reading were, or from, the commencement of the delivery of the materials.</p>

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

<p>Bill for ail Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge presiding. Heard in this court at the March term, 1902.</p>

Mandamus.—Error to the Circuit Court of Cook County; the Hon. CHAitLES G-. Neely, Juclge presiding. Heard in the Branch Appellate Court at the March term, 1903. This is an appeal from a judgment of the Circuit Court refusing to issue a peremptory writ of mandamus. At a regular meeting of the city council of the city of Chicago held on the seventh day of January, A. D. 1901, an ordinance was passed redistricting the city of Chicago into thirty-five wards.

<p>1. Practice— Where Plea'is Filed Default of Defendant Can Not be Entered,.-—Where a plea has been filed, unless it has been stricken from the files or otherwise disposed of, the court is powerless to enter the default of the defendant.</p> <p>2. Same—Entering Judgment upon a Default for an Amount Greater than the Damages Claimed by Plaintiff.—It is clear error to enter judgment upon a default for an amount greater than the damages claimed by the plaintiff in his declaration.</p>

<p>1. Divorce—Compulsory Separation Caused by Husband's Persistent Indolence is Ground for.—While it is true that the statute does not make non-support, as that expression is usually defined, a ground for divorce, yet if a husband allows an officer of the law to put his wife onto the street and provides her no home, when he has the ability to do so, and persists in such failure for two or more years, he has willfully deserted her without any reasonable cause for the space of two years, and she is entitled to a divorce for desertion.</p> <p>2. Same—Desertion Charged Must be Such as the Statute Makes a Ground for Divorce.—When desertion is charged as the ground for divorce, it must be such as the statute makes a ground for divorce.</p> <p>3. Equity 'Practice—Decrees Pro Confesso.—A decree pro confesso concludes the defendant only as to matters alleged in the bill.</p> <p>4. Same—The Allegations of the Bill, the Proof and the Decree, Must Correspond.—It is a fundamental rule of equity pleading that the allegations of the bill, the proof and the decree, must correspond.</p>

<p>1. Bills of Exceptions— Can Not be Amended from Memory.—The court can not amend the original bill of exceptions from memory, but only from some official or quasi-official note or memorandum or memorial paper reserved in the files of the case, or upon the records of the court. It can not make the stenographer’s sworn transcript a basis of such an amendment. ,</p> <p>2. Insurance—Breaches of Warranties, Representations or Mate-</p> <p>merits in the Application or Policy Must be Pleaded Specially. —Breaches of warranties, representations or statements in the application or policy must be pleaded specially. It is not necessary for the plaintiff in an action on the policy, to either allege or prove such matters as appear in the application only. To be availed of as a defense, without regard to whether they are warranties, or representations merely, thejr falsity or breach by the assured must be set up and proved by the defendant as a matter of defense.</p> <p>3. Pleading—How the Ground that the Plea Amounts to the General Issue Can be Taken Advantage of.—The ground that the plea amounts to the general issue can be taken advantage of only by a special demurrer.</p>

<p>1. Presumptions—That the Court Acted Correctly—Evidence Insufficient to Rebut.—Where it appears that both a demurrer and plea were presented for filing at the same instant, and were totally inconsistent with each other, and that the demurrer only was acted upon, it will be presumed, in the absence of anything tending to the contrary, that the plea was marked “ filed” by mistake or fraud, and was not in fact filed at that time, nor before default and final judgment.</p> <p>2. Estoppel—Party Failing to Object to Action of Trial Court.— A party who stands by in the trial court and suffers the court to enter judgment by default, supposing no answer to have been filed, can not take, advantage of such error on appeal.</p>

Motion to Quash an Execution, etc.—Error to the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge presiding. Heard in the Branch Appellate Conrt at the- March term, 190S. May 31,1898, a judgment in favor of James Kennedy was rendered by a justice of the peace of Cook county against Louis Reinhardt and Katharina Reinhardt for $200 and costs.

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. This is an action on the case by the administrator of Gustave Bucks, deceased, to recover damages for the death of the latter, who was killed while passing through the LaSalle street tunnel on one of the defendant’s street cars. The declaration is in five counts.

<p>Assumpsit.—Error to 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>Trespass on the Case.—Death from negligent act. 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.</p>

<p>Bill to Foreclose a Mortgage.—Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.</p> <p>Amanda M. West filed her bill September 6, 1896, to foreclose a second mortgage on certain property, dated May 1, 1893, made by Welcome Hyde to secure the payment of $21,657.37.' A receiver was appointed therein and collected certain rents from said premises. , This petition was filed by her in her said foreclosure proceeding to compel the receiver to pay over to her the said rents, and set forth the following representations: that said Hyde had, previous to giving petitioner said mortgage, acquired the title to said property from Fannie C. Fetter, and George C. Fetter, her husband, and when thus acquired it was subject to a first mortgage given by said Fetters to secure the payment of their certain note of $18,QUO, dated July 20, 1892, which was a prior and superior lien to the mortgage given by said Hyde, and that in said foreclosure proceedings, on September 26, 1896, a receiver was appointed to collect the rents for said real estate; that on the 21st day of December, 1896, a decree was entered finding that there was due said Amanda M. West on account of said indebtedness secured by said second mortgage, $26,287.86; and the receiver was thereupon ordered to turn over to her the money then in his hands to apply on the said indebtedness, and to pay over from time to time thereafter to her such sums of money as might come into his hands to be applied on said indebtedness; that March 7, 1898, Mary F. Blair, Chauncey J. Blair and Cyrus H. Adams, as trustees under the will of Lyman Blair, deceased, filed their bill for the foreclosure of said first mortgage; that thereafter a decree of foreclosure was entered and the said property ordered to be sold thereunder and a sale was made; and a sufficient amount not being realized to satisfy the indebtedness secured by the first mortgage, a deficiency decree of $398.55 was entered against the said Fetters, makers of the note secured by said first mortgage, and that the receiver appointed in said foreclosure proceedings of the second mortgage was appointed receiver to collect rents to pay said deficiency decree, but it was provided that all questions of the rights of parties to the surplus in the hands of the receiver upon the filing of his final account should be reserved by the court until the finál order of distribution.</p> <p>The petition further represents that the said Fetters at the time of the entry of said deficiency decree owned property in Cook county not exempt from execution, from which the entire amount of the deficiency decree could have been paid; that no effort was made to collect the same from the said Fetters; that said property was bid in by the owners of the first mortgage at less than its real value; that the petitioner is informed that the Fetters, in order to make title to a certain piece of their real estate free from the lien of said deficiency judgment, in some way, either by secret agreement or by depositing the amount of said judgment with a trustee to indemnify any party interested from any loss resulting from the enforcement of said decree, procured a release of said piece of property from the lien of said deficiency decree; that on the seventh day of April, 1900, the receiver filed his final account in this cause, from which it appears that all in his hands and due him was $377.77; and petitioner prays that the receiver may be ordered do pay over to her said funds.</p> <p>A general demurrer of Mary J. Blair et ah, as trustees, was filed April 19, 1900, and on June 21, 1900, a decree sustaining said demurrer and awarding distribution, was . entered as appears from the abstract. It was ordered that the receiver apply the balance in his hands as shown by his final report in payment of said deficiency decree and pay said petitioner the remainder of said sum; and it was further ordered that upon filing receipts for said payments said receiver should stand discharged from further duties as receiver in this cause and in the said, cause qf Blair v. Fetter.</p>

Trespass on the Case.—Death from negligent act. 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. This is an action on the case by Neil J. Shannon, administrator of the estate of Albert O. Massat, deceased, against the West Chicago Street Railroad Company to recover damages for the death of said deceased.

<p>1. Foreclosure—Indebtedness Represented by Notes Other Than the One Secured by Trust Deed.—The fact that the indebtedness represented by a note to secure which a trust deed is given, was at the time of the making of such note represented by other notes of the maker, is no reason for refusing to enter a decree of foreclosure upon the actual indebtedness represented by a note for which the trust deed was given as security.</p> <p>2. Interest—Not Allowed on Money Deposited with Surety as Security for His Liability Under the Appeal Bond He Has Signed.— Interest should not be required of a surety upon money deposited with him as "security for his liability under an appeal bond he has signed where the money so received from him was deposited from time to time and he, at no period, had any assurance that he .might not be called upon by a termination of the litigation, either by settlement or judgment, to pay over the money .in his hands at any day.</p> <p>3. Solicitor’s Fees— When Objection to, Comes Too Late.—Where no objection was made in the court below to the allowance of solicitor’s fees, such objection comes too late in the assignment of error made in this court.</p>

Trespass on the Case.—Death from negligent act. Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. This was an action on the case brought by the Chicago 'fitle and Trust Company, as administrator of the estate of Giovanni Pavese, against the Standard Fashion Company, a corporation. The defendant pleaded the general issue.

<p>Bill of Interpleader,—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, 1903.</p> <p>This was a bill of interpleader filed by the Gross Loge des Deutschen Orden der'Harugari, an Illinois corporation The bill sets forth, in substance, that the complainant had issued to August Senge, who died on May 8, 1901, while a member of said order in good standing, a beneficiary certificate which named as beneficiary his wife, Frederick a Senge, who resides in Chicago, and is made a defendant, and that the other defendant, Emma Maria Paulina Senge, who resides in Germany, claimed to have been "the lawful wife of the said August Senge since 1875, and to be entitled to the full amount called for, on the ground that the designation of Fredericka Senge as' beneficiary was null and void. The complainant signifies its willingness to ■ pay over the money, and asks the court to determine which defendant is entitled to the same. Both defendants answered, and subsequently the Orden der Harugari paid the money ($700) into court, and by interlocutory decree was discharged out of the case, which was then heard on the answers of the two claimants. •</p>

<p>1. Depositions—Errors in, Cured Where Witness is Afterioard Orally Examined.—-Any error in a deposition is cured where the party objecting subsequently puts that witness on the stand and orally examines him on the whole case.</p> <p>2. .Practice—Where Original Papers Are Not Certified by an Order of Court.—Where there is no order of court certifying the original papers to this court for any purpose, they can not be treated as a part of the record.</p>

<p>Debt, upon a promissory note. Error to the City Court of Aurora; the Hon. Russell P. Goodwin, Judge presiding. Heard in this court at the October .term, 1902.</p>

<p>Assumpsit., upon a promissory note. Error to the County Court of Kankakee County; the Hon. E. B. Gower, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Assumpsit, for professional services. Appeal from the Circuit Court of Peoria County; the Hon. Theodore N. Green, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Instructions—That the Burden is upon the Purchaser of a Note to Show that he Purchased in Good Faith.—An instruction that the burden of proof is upon the purchaser of a note to show that he purchased the note in good faith, and that if the jury find from the evidence that the.purchase of the note was not made,in good faith, that is, that the plaintiff was not honest in the purchase of the note, they should • find the issues for the defendant, is erroneous. The party who takes commercial paper before due, for a valuable consideration, without knowledge of any defect of title and in good faith, holds it by a title valid against the world, and the burden of proof lies on the person who assails the right claimed by the party in possession.</p> <p>3. Bills' and Notes—Burden of Proving Alterations.—An alteration apparent upon the face of a note must be presumed prima facie to have been made after the instrument was executed, and the burden is upon the holder of the note to show the contrary. But where the alteration is not apparent upon the face of the instrument, the burden of proof is upon the defendant who sets up the alteration as a defense.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Kankakee County; the Hon. John Small, Judge presiding. Heard in this court at the October term, 1903.

Trespass on tlie Case, for death by negligent,act. Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge presiding. Heard in this court at the October term, 1902.

<p>1. Divorce—-Evidence Admissible under Bill.—Where a bill for a divorce alleges that for the last six years prior to the separation defendant had been guilty of acts of extreme and repeated cruelty toward complainant, and specifies the nature of such cruelty, and further alleges that “ for years they have tried to drive him from said farm by a systematical course of insult and injury, and on, to wit, the 1st day of June actually drove him by force from said farm,"’ charges of cruelty in which a divorce is sought are limited to the last six years before the separation.</p> <p>2. Same—Where Husband mid Wife Have Committed Reciprocal Excesses and Outrages.—Courts will not interfere by divorce when the husband and wife have committed reciprocal excesses and outrages.</p>

<p>1. Principal and Agent—Payment of Note to Agent Before Maturity.—In the case of a general financial agent, or where the course or habit of dealing between the parties is such as to extend the ordinary authority of the agent, a valid payment may be made to the latter even before the maturity of a note.</p> <p>2. Same—Authority of Agent to Receive Payment of Debt Before Maturity.—Although authority to an agent to receive payment of a debt is not of itself authority to receive it before maturity, yet such authority may be implied from a known usage of trade or course of dealing in the particular employment, or from a prior course of dealing between the principal and agent.</p>

<p>1. Railroads— Open Gate is Notice of a Clear Trade.—An open gate is notice of a clear track and that it is safe to cross without taking the precautions usually required to discover approaching trains, and negligence is not imputed to one who acts upon that assurance.</p> <p>2. Master and Servant—Injury the Result of Negligence of Master and Felloiv-Servant—Contributory Negligence.—Where the negligence of the master is combined with the negligence of a fellow-servant in producing the injury and the negligence of neither is alone the efficient cause, both the master and the fellow-servant are liable and the injured servant may maintain his action against either or both together.</p>

Bill In Chancery, to recover possession of personal property. Appeal from the Circuit Court of Marshall County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the October term, 1903.

Assumpsit, to recover money lost at gambling. Appeal from the Circuit Court of La Salle County; the Hon. Henry M. Trimble, Judge presiding. Heard in this court at the October term, 1902.

<p>Replevin.—Error to the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the October term, 1902.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Theodore N. Green, Judge presiding. Heard in this court at the October term, 1902.

<p>Creditor’s Bill.— Appeal from the Circuit Court of Winnebago County; the Hon. Charles E. Fuller, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Forcible Detainer.—Appeal from the Circuit Court of DeKalb County; the Hon, George W. Brown, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Attachment for Contempt.—Error to the City Court of Elgin; the Hon. Russell P. Goodwin, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Henry County; the Hon. Frank D. Ramsay, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Tax Sales—Insufficient Affidavit.—An affidavit for a tax deed is defective which states that the premises were taxed in the name of a certain estate, and that such estate upon diligent inquiry can not be found in the county. It should show service of notice upon the representatives of the estate, or that upon diligent inquiry they can not be found in the county.</p> <p>2. Same — Service upon Occupants Must be upon Occupants in Actual .Possession.—It is not sufficient in an affidavit for a tax deed to aver service of A and B, “the occupants of said real estate.” The affidavit must show that they were in actual possession of the land at the time the notice was served upon them.</p> <p>8. Same—Notice of Affidavit for Deed Must be Given to Party Litigating Title to Same Land in Court.—Where a party has a suit in the Circuit Court of the county to assert and enforce his title to real estate, an affidavit for a tax title of such real estate must show notice to him, or that upon diligent inquiry he can not be found in the county.</p> <p>4. Same—-Insufficient Proof of Publication.—An affidavit of publication of notice for a tax deed which does not show when nor how .many times the notice was published, nor that the certificate of publication attached is true, is not sufficient proof of publication.</p> <p>5. Same—What Decree Enjoining Issuance of Deed Should Gonlain. —A decree enjoining a county clerk from issuing a tax deed to land alleged to have escheated to the county, should determine the amount due, and which should be paid by the county for the land, on the certificate of purchase, and subsequent taxes and costs and interest, and should make such payment a condition precedent to making the injunction perpetual.</p>

<p>Assumpsit.—Appeal from the County Court of Rock Island County; the Hon. Lucian Adams, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Instructions—Where the Evidence is Conflicting.—Where the evidence is conflicting, the jury should be accurately instructed.</p> <p>2. Same—Burden of Proof in Assault and Battery WTtere the Plea is Moderate Castigavit and Replication de Injuria.—An instruction in an assault and battery case against a school teacher to the effect that the burden of proof is upon the plaintiff, not only to show that the defendant punished the plaintiff, but that such punishment was clearly excessive or unreasonable, is erroneous. The rule in this state is that where the defendant has pleaded moderate castigavit and the plaintiff replied de injuria, the burden of proof is upon the defendant.</p> <p>3. Same—Erroneous Ones Not Cured by Others.— An erroneous instruction is not cured by a proper instruction on the same side, when from the evidence it is impossible to say that the jury did not follow the erroneous one.</p>

<p>I. Mechanics’ Liens—Law Must be Strictly Construed. — The mechanics’ lien law must be strictly construed and applied.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Peoria County; the Hon. Theodore N. Green, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Witnesses— Their Credibility a Question for the Jury.—The question of the credibility of witnesses is for the jury.</p> <p>2. Principal and Agent—Power of Agent to Collect a Debt and Release a Mortgage Before Maturity.—Where an agent has been for years in the habit of loaning his principal’s money, and receiving money on loans before due and generally transacting his principal’s business as he saw fit, and the parties borrowing have had no dealings with or knowledge of the principal, the agent must be held to have authority to receive payment of a note and discharge a mortgage lien before maturity.</p>

<p>Bill for a Mechanic's Lien.—Error to the Circuit Court of McHenry County; the Hon. Charles H. Donnelly, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Forfeitures—Waived by Inconsistent Acts.—Forfeitures are not favored in law, and after a forfeiture has been declared, any subsequent act inconsistent with the forfeiture by the person declaring it, is a waiver thereof.</p> <p>2. Landlord and Tenant—Waiver of a Notice to Quit.—As a general rule if, after a notice to quit, the parties recognize the tenancy as continuing, their conduct will constitute a waiver of the effect of the notice, and permitting the tenant to remain in undisputed possession of the premises for a considerable time after he should have given up possession might warrant a finding of a waiver of the notice by the landlord.</p> <p>3. Same—Notice to the Landlord Necessary to Place Him in Default for Not Repairing.—Where there is an agreement to keep the premises in repair or to make all necessary repairs during the term, a notice by the tenant to the landlord of the need of repairs is as a general rule necessary to place the landlord in default for not repairing.</p> <p>4. Judgments—Where a Judgment is Not the Sentence Which the Law Ought to Have Pronounced,—Where a judgment as entered is not the sentence which the law ought to have pronounced, the record may be amended nunc pro tunc, by striking out of the judgment the erroneous part.</p>

<p>Garnishment.—Error to the Circuit Court of Knox County; the Hon. Georqe W. Thompson, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Forcible Detainer.—Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Practice—Amending Bill of Exceptions at a Subsequent Term.— An amendment of the bill of exceptions at a later term can not be made merely upon the recollection of the judge or oral proof, but must be based'upon some record, memoranda, memorial paper or minute. The notes of an official stenographic reporter constitute data upon which the court may act in making an amendment, if the amendment relates to matter which it was the duty of the reporter to take down.</p> <p>2. Same—Errors of the Trial Court Not Assigned for Error Are Waived.—Where defendant does not assign errors in his motion for a new trial, they are waived.</p> <p>3. Chattel Mortgages — Where Note Secured Has Not Been Assigned.—Where a note secured by a chattel mortgage has not been assigned, it is not essential to the validity of the chattel mortgage securing it that the note should state upon its face that it was secured by a chattel mortgage.</p>

<p>1. Practice—Questions Where a Motion is Made at the Conclusion of the Proof Offered by Both Parties to Instruct Jury to Find for the Defendant.—Where, at the conclusion of the proof offered by both parties, a motion is made to instruct the jury to find the issues for the defendant, the question is whether all the evidence, both for the plaintiff and the defendant, with all the inferences the jury might draw therefrom, would be sufficient to support a verdict for the plaintiff if one should be returned.</p> <p>2. Parent and Child—Recovery of Wages Where One Dives with Anothet' as a Member of His Family.—-Where the circumstances under which a person went to live with another show that she lived there as a member of his family, she can only recover by showing an express contract for wages, or proving such circumstances as reasonably imply such a contract.</p> <p>3. Same—Express Contract Necessary in Order to Recover for Suppo't and Care.—A person standing in loco parentis can not recover for the support and care of a child nor can the child recover for services rendered to the parent, unless there was an express contract between them for such compensation, or unless the contract for such compensation be established by proof of such facts and circumstances as show that both parties at the time the services were rendered contemplated or intended pecuniary recompense other than that which arises entirely out of the family relation.</p> <p>4. Same—Mere Declaration of Gratitude is Not Proof of an Agreement to Pay.'—Mere declarations of gratitude are not proof of an agreement to pay for services of this character. Loose expressions of an infirm parent, expressions of gratitude for the, personal services of a child and of a desire that compensation should be rendered after his death, but not indicative of the terms of a contract, are an insufficient basis for the submission to the jury from which to find whether such a contract in fact existed.</p>

<p>1. Judgment—Mere Irregularities in Selecting Jurors Where No Prejudice Results, Will Not Reverse.—Mere irregularity in the mode of selecting jurors does not require the reversal of a judgment" unless prejudice results therefrom to the xiarty complaining.</p> <p>3. Practice—Parties Have a Right to Have Twelve Jurymen in the Box During All the Time the Jury Is Being Impaneled.—When either party requires it there must be twelve jurymen in the box during all the time the jury is being impaneled.</p>

<p>Assumpsit, for commissions. Appeal from the Circuit Court of Boone County; the Hon. Arthur H. Frost, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Appeals—From Embate Court—Controlled by Statute.—The procedure upon an appeal from the Probate to the Circuit Court is controlled by the statute regulating appeals from judgments of justices of the peace to the Circuit Court. The statute provides that a transcript of the judgment and proceedings, together with the appearance of the appellee, must be filed ten days before the first day of the term at which the case is to be tried. Unless there is such a transcript as the statute contemplates and defines on file ten days before the beginning of the term, the court has neither power to try the case nor dismiss the appeal. All the court can do under such circumstances is to permit' the appellee to file such a transcript as the law requires, enter a rule upon the appellant to refund the cost thereof, and upon failure to comply with the rule to dismiss the appeal.</p> <p>2. Practice — Error to Deny an Appellee a Continuance When Appellant Does Not File Transcript in Time.—It is reversible error to deny an appellee a continuance when the appellant has failed to file a statutory transcript within ten days before the beginning of the term.</p>

<p>1. Contracts— Construction of.— Under the provisions of a contract plaintiff had the option of furnishing three pumps, each of a capacity of 3,000,000 gallons a day, or two pumps, each of a capacity of 6,000,000 gallons a day, and in case he furnished the two 6,000,000 gallon pumps he was also to provide two engines, each arranged for and capable of operating one of said pumps. Not knowing how the pumps and engines he was purchasing would stand the test to which they were afterward to be subjected, under the contract, plaintiff purchased and installed three pumps and three engines, and when the tests were made, it was found that each of said pumps would pump over 6,000,000 gal-Ions per day of twenty-four hours, and that each engine would operate one of said pumps. Plaintiff attempted to remove that part of the equipment not specified in the contract, but was prevented by defendant. Held, that the fact that plaintiff installed more pumps and engines of the capacity named than were called for by his contract, for the purpose of making the required tests, did not bind him to leave them all at the plant and give them to defendant. All that he was required in law to do was to furnish to the defendant city the number of pumps and engines of the required capacity, specified by the contract.</p>

<p>1. Promissory Notes—4 Memorandum Made after Execution, is No Part of the Note.—A memorandum, made after the execution of a note is no part of it.</p> <p>2. Evidence—Court is to Decide upon Meaning to be Attached to Instrument Offered in Evidence.—It is for the court to decide as a matter of law what are the letters and figures of an instrument offered in evidence, and the meaning to be attached to them.</p>

<p>1. Verdicts—When One May Be Directed for the Defendant.— Where, from the evidence in an qction for personal injuries the jury could not reasonably reach any other conclusion than that the deceased met his death by his own negligence, a verdict for the defendant is properly directed.</p> <p>2. Carriers of' Passengers—Relation of Carrier and Passenger is a Contract Relation.—The relation of carrier and passenger is a contract relation. Both parties must enter into and be bound by the contract. The passenger may do this by putting himself into the care of the railroad company to be transported, and the company does it by expressly or impliedly receiving and accenting him as a passenger.</p> <p>3. Same—Mere Fact that a Party Mas a Ticket Does Not Create the Relation.—The mere fact that a party has a ticket and intends to take a train does not create the relation of carrier and passenger. Where there is no formal delivery of the passenger’s person to the carrier, the circumstances must be such as to warrant an implication that he has offered himself to be carried, and that the offer has been accepted by the carrier. If he has not been expressly or impliedly received as a passenger by the carrier, the relation does not exist.</p> <p>4. Same—Whether Relation Fxists is a Question of Law.—Whether the uncontroverted facts show the relation of carrier and passenger is a question of law.</p>

<p>Action for Deceit.—Error to the Circuit Court of Kankakee County; the Hon. Robert W. Hilscher, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Assumpsit, on promissory notes. Appeal from the Circuit Court of DuPage County; the Hon. Charles A. Bishop, Judge presiding. Heard in this court at the October term, 1903.</p>

<p>1. Trespass—Selling Property of Wrong Person to Satisfy Chattel Mortgage.—The husband of plaintiff, who was accustomed to act as her agent in the management of her farm, made a chattel mortgage on grain belonging to plaintiff, to secure notes given by him and another party. Before the mortgage was due and before any default defendants entered upon plaintiff’s land, seized the grain and sold it under the mortgage. Held, that the acts of defendants were a willful trespass.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. Hiram Bigelow, Judge, presiding. Heard in this court at the October term, 1902.

<p>1.' Negligence— Where the Negligence of Two in Combination Causes the Injury, Either is Liable.—When the negligenc? of two is, in combination, the proximate cause of an injury, either or both may be held responsible for the consequences resulting from their combined negligence.</p> <p>3. Practice—Where Two Defendants Are Suedfor a Tort.—Where two defendants are sued for a tort it is not necessary that both must be found guilty or neither, but one may be convicted and the other acquitted.</p>

Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge presiding. Heard in this court at the October term, 1902.

<p>Bill to Foreclose a Mortgage.—Appeal from the Circuit Court of Kane County; the Hon. Charles A. Bishop, Judge presiding. Heard in this court at the October term, 1903.</p>

<p>1. Practice—Where One of Two Innocent Parties Must Suffer.— Where one of two innocent parties must suffer through the act of a third, the loss must fall on him who puts it in the power of the third person to commit the act causing the loss.</p> <p>2. Principal and Agent —Principal Liable for Agent’s Acts When Acting Within the Scope of His Authority.—Plaintiff’s agent prepared a duplicate form of contract between his principal and the defendant regulating the sale of the plaintiff’s machinery by the defendant. It was signed by defendant, after which the agent detached therefrom a slip of paper or rider which provided that the minimum commission of defendant for that year should be $500, and sent both copies to the plaintiff for its approval and signature. They were executed without the rider and returned to the agent, who replaced the rider upon defendant’s copy of the contract and delivered it to defendant in that condition, which was the same condition in which defendant had signed it. The twelfth clause of the contract provided that the agent might make any subsequent agreement after the execution of the original contract. Held, that as the agent had not only apparent, but actual authority to make the contract, including the provisions contained in the rider, the rider was a part of the contract and binding upon plaintiff.</p>

<p>Debt on a Replevin Bond. —Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Railroads—Owe No Duty to Trespassers on Right of Way until They Are Seen.—A railroad owes no duty to a person on the right of way outside of the highway, until he is seen, and there is no duty to be looking for persons on the right of way beyond the highway.</p> <p>3. Pleadings—Recovery Must Be Had on the Ground of Negligence Alleged.—The object of written pleadings by plaintiff is to apprise defendant of the ground of action on which plaintiff relies, in order to afford defendant an opportunity to meet that specific ground, and it is not admissible that one ground of negligence be alleged, and recovery be had upon another and different ground.</p> <p>3. Negligence—A Question of Fact for the Jury.—It is for the jury to say whether, under all the circumstances then existing, plaintiff was guilty of negligence in going upon the tracks within the highway when the gate was down.</p> <p>4. Practice—Objections to Rulings of the Trial Court Not Contained-in Motion for a Neio Trial.—Objections to rulings of the trial court not contained in the motion_j:or a new trial are waived.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge presiding. Heard in this court at the October term, 1903.</p>

<p>1. Freehold—Cross-bill Having as its Object the Talcing of a Title from- One and Vesting it in Another.—Where the.object of a cross-bill is to take the title of land from one party and vest it in another, a freehold is involved and the Appellate Court has no jurisdiction.</p> <p>2. Mortgages—Made Before Conveyance of Property and Recorded Afterward.—The plaintiff conveyed premises to her daughter, who, with the plaintiff’s consent and knowledge, gave a mortgage to the defendant to secure notes given to him by her and her mother for loans from time to time. The mortgage was not recorded until after the daughter reconveyed the premises to her mother, but before the recording of the deed of reconveyance. Held, that as the mortgage was given with her approval to secure her debt, and was recorded before the record of the deed back to her, it is entitled to precedence, and,is a valid lien upon the property.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Stephenson County; the Hon. James S, Baumb, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Appeal from Probate.—Appeal from the Circuit Court of DeKalb County; the Hon. George W. Brown, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>1. Foreclosure—Fraud.—The court reviews the evidence in the case and holds that it does not successfully assail the settlement made by the defendants with full knowledge of all the facts.</p>

<p>Bill to Enforce a Lien.—Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge presiding.. Heard in this court at the October term, 1902.</p>

<p>‘ 1. Contracts—Providing Sum as Compensation for Breach— Whether Liquidated Damages or a Penalty.—Where the parties to an agreement have expressly declared the sum agreed upon as compensation for a breach of the contract to be intended as a forfeit or penalty, and no other intention is to be collected from the instrument, it will be generally so treated, and a recovery will be limited to the damages actually sustained by the breach of the covenant it was to secure. On the other hand it will be inferred that the parties intended the sum named as liquidated damages, when the damages arising from the breach are uncertain, and are not capable of being ascertained by any satisfactory or known rule, or where, from the nature of the case, and the tenor of the agreement, it is apparent that the damages have already been the subject of actual and fair calculation and adjustment.</p> <p>2. Same— Courts Prefer to Construe Contract as Providing for a Penalty.—While it is competent for parties to agree upon a sum as compensation for a breach of a contract, which does not manifestly exceed the amount of the injury sustained, the courts have nevertheless generally refused to give a construction oppressive in its effect. Where such a state of facts has arisen, the courts have generally construed the contract to be one providing a penalty for the damage actually sustained.</p> <p>3. Same—Where the Court Will Construe the Contract as One Affording a Penalty, Not Liquidated Damages.—Where a contract provides for the payment of a gross sum as damages for a failure to fulfill any one of several covenants, and the damages arising from some of the breaches are uncertain and'difficult to ascertain, while the damages arising from others are susceptible of easy ascertainment, the courts will construe the contract as one affording a penalty, not liquidated damages.</p> <p>4. Same—Can Not be. Construed as Creating a Penalty for One Party and Liquidated Damages for the Other.—A contract can riot be construed as creating a penalty for one party and liquidated damages for the other. Neither can it be held for some-purposes to create a penalty, ■ and for other purposes liquidated damages; it must be held to be one or the other.</p> <p>5. Words and Phrases—Penalty and Forfeiture.— The words “penalty” and ‘ ‘ forfeiture ” are generally used as synonymous terms. Prima facie, the word penalty excludes the idea of stipulated or liquidated damages, and it has been held that the words “ liquidated damages ” are not conclusive between the parties.</p>

<p>Debt, upon an appeal bond. Appeal from the Circuit Court of Montgomery County; the Hon. Truman E. Ames, Judge presiding. Heard in this court at the May term, 1902.</p>

Trespass on the Case.—Damages caused by operating a coal mine. Appeal from the Circuit Court of Christian County; the Hon. Samuel L. Dwight, Judge presiding. Heard in this court at the May term, 1902.

<p>Assumpsit, with attachment in aid. Appeal from the Circuit Court of Macon Csunty; the Hon. Edward P. Vail, Judge presiding. Heard in this court at the May term, 1902. '</p>

Assumpsit, for goods sold and delivered, Appeal from the Circuit Court of Cass County; the Hon. John C. Broady, Judge presiding. Heard in this court at the May term, 1902.

<p>1. Practice—Where Objections to Action of Trial Court Are Waived. —Where an alleged error in the giving of an instruction is not objected to in the motion for a new trial, nor in the assignment of errors, such error, if any, is waived.</p>

<p>Assumpsit.—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. Evidence—Tending to Show a Willingness to Comply with the Terms of a Contract.—Evidence of facts tending to show a willingness to comply with the terms of a contract, is admissible.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge presiding. Heard in this court at the May term, 1902.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Sangamon County; the Hon. Jakes A. Creighton, Judge'presiding. Heard in this court at the May term, 1903.</p> <p>In 1900, appellant was organized as a fraternal beneficiary society under the act of June 22,1893. Soon after its organization, Mary Zimmerman, an unmarried woman twenty-one years of age, became a member and took out a beneficiary certificate on her life for $1,000, payable to her minor brother, Charles Zimmerman, on her death. About two and one-half months after receiving the certificate, she died from inflammation of the womb and blood poisoning. Her disease resulted from giving birth to a child i,n Chicago, where she had secretly gone for confinement. Immediately upon her death, Caroline Zimmerman procured letters of guardianship for her minor son, Charles Zimmerman, submitted proofs of death to appellant and, by order of its board of directors, was paid the $1,000 insurance. Within a few weeks thereafter, appellant’s board of directors instructed its supreme secretary to demand of Caroline Zimmerman a return of the money so paid, less $200, which the secretary did. Eight hundred dollars was accordingly returned and was paid into the treasury of appellant. Three weeks afterward, Caroline Zimmerman resigned as guardian and Joseph H. Edwards, appellee, was appointed in her 'stead. On the 22d of February, 1901, he began this suit to recover back the $800 so returned, and afterward obtained a judgment against appellant for $844.77 and costs.</p>

<p>Assumpsit.—App'eal from the Circuit Court of Shelby County; the Hon. Samuel L. Dwight, Judge presiding. Heard in this court at the May term, 1902,</p>

<p>Assumpsit.—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>

Assumpsit.—Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge presiding. Heard in this court at the May term, 1902. The appellant filed his demurrer to a declaration in assumpsit, presented by appellee against appellant and one O. F. Kellogg.

<p>1. Practice—Erroneous Instruction Where There is No Defense to the Amount of the Verdict.—Where it is clear that there is no real or meritorious defense to the amount of the verdict that was returned, erroneous instructions are harmless and the judgment ought not to be reversed for such reason.</p> <p>2. Presumptions—That the Court Acted Regularly.—To. the absence of evidence to the contrary it will be presumed that the court acted regularly in issuing an injunction bond.</p>

<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>1. Equity—Where the Vendor of Real Estate Has Executed Rond to Make Title When the Purchase Money Shall be Paid.—Where the vendor of real estate has executed bond to make title when the purchase money shall be paid, a court of equity will consider the 'transaction in the nature of a conveyance to the purchaser and a reconveyance back by way of mortgage.</p> <p>2. Liens—Position of Assignee on Notes Given for Purchase Money of Land Which the Vendor Has Given Bond to Convey.—Where the vendor of rbal estate has executed bond to make title when the purchase money shall be paid, the assignee of notes given for the purchase monej', like the assignee of a note secured by a mortgage, is entitled to the benefit of the security, and may enforce it as he would enforce the lien of an ordinary mortgage.</p>

<p>1. Forfeitures—What an Insurance Company Must Show Before Defense of Forfeiture Can Prevail.—As a general rule forfeitures are not favored by courts, especially a forfeiture of a member’s rights under a contract of insurance in a fraternal association. Before the defense o.f a forfeiture, because of non-payment of an assessment, can prevail, it must not only appear that every step necessary to constitute a legal assessment has been taken, but also that the member alleged to be in default has been notified in the precise manner specified by the rules and regulations of the order.</p> <p>2. Fraternal Insurance—Company Must Shoio that it Has Given Notice of Assessment Which Contract Requires.—When the contract between a benefit insurance society and its members provides that assessments shall be due a certain time after a particular notice has been given, the society, before it can claim that a member has been suspended for failure to pay such an assessment, must show affirmatively that it has given the notice of that assessment which the contract requires.</p>

Trespass on the Case, for an injury to a horse. Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer. Judge presiding. Heard in this court a.t the May term, 1902.

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

<p>Assumpsit, on a benefit certificate. 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>Forcible Entry and Detainer.—Appeal from the Circuit Court of Perry County; the Hon. William Hartzell, Judge presiding. Heard in this court at the February term, 1903.</p>

<p>1. Insurance—Certificate to be Void if Insured Dies by His Own Hand, Whether Sajie or Insane.—A certificate of insurance containing a stipulation that it shall be void and of no effect if the insured dies by his own hand, whether sane or insane, is valid, and there can be no recovery, even if the insured was utterly bereft of reason at the time of committing the act. In such case it "is wholly immaterial what the insured’s mental condition was.</p> <p>2. Same—Rules of Construction.—The purpose of an insurance contract is indemnity, and the law will lean to that construction which will effect the purpose of the contract. Where the language of the contract as a whole is susceptible of more than one meaning, the court will give to it that meaning more favorable to the insured.</p> <p>3. Contracts—Courts Must Interpret the Contract Made by the Parties Themselves.—In insurance contracts as well as in other contracts, it is for the courts-to interpret the contract made by the parties themselves, and not to make a contract for them. Where the subject-matter is proper to be dealt with by contract, the contract itself is neither contrary to law nor public policy, the parties are competent to contract, and, in the absence of fraud or other vitiating condition do actually contract, and evidence the same as the law requires, the courts must respect such contracts.</p> <p>_ 4. Words and Phrases—Suicide Defined.—Suicide is the act of ■ designedly destroying one’s own life.</p>

<p>1. Divorce—Insufficient Evidence to Support Allegation of Desertion.—The court reviews the evidence and is of the opinion that it entirely fails to support the charge in the bill that defendant deserted the bed and board of complainant.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the August term, 1903.

<p>1. Railroads—Duty Toward Gratuitous Licensees.—As to active or unstable surroundings or conditions, put in motion or caused by a railroad company, it owes to a licensee, upon its right of way, a degree of care reasonably commensurate to the known danger; but as to mere accommodations for travel and danger incident to fixed and long established conditions or surroundings, it owes such person no duty.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Washington County; the Hon. William Hartzbll, Judge presiding. Heard in this court at the August term, 1902.

<p>Trespass, guare clausum fregit. Appeal from the Circuit Court of Lawrence County; the Hon. Enoch E. Newlxn, Judge presiding. Heard in this court at the August term, 1903.</p>

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

<p>1. Appeals—Duty of Revieioing Court Where Diereis Evidence Sufficient to Sustain the Verdict and the Case is a Close One.—Where there is evidence sufficient of itself to sustain the verdict of the jury, although the whole case is a very close one on the facts, it is the duty of the Appellate Court to see only that the jury have been accurately instructed as to the law, and that no material error in the introduction or rejection of evidence has been allowed to get into the record injurious to appellant.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Wabash County; the Hon. Enoch E. Newlin, Judge presiding. Heard in this court at the August term, 1902.

<p>I. Master and Servant—Servant Assumes the Ordinary Risks of the Emoloyment.—The servant takes upon himself the ordinary hazards and risks of the work he is employed to do.</p>

Trespass on the Case.—Death from negligent-act. Appeal from the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in this court at the August term, 1903. Suit tó recover damages for killing Edmund Baker, December 17, 1899, by running a locomotive attached to freight cars against a wagon which he was driving over a crossing of appellant’s tracks. Verdict and judgment for $700. Defendant appealed. Two counts in the declaration.

<p>1. Verdict—Where There is Substantial Evidence to Support Each Party.—Where there is substantial evidence introduced by each party in support of his side of the case, the verdict of the jury will not be disturbed.</p>

<p>1. Words and Phrases—Cause of Action.—The cause of action in a suit is the act or thing done or omitted to be done.</p> <p>2. Pleading—Test Whether an Amended Declaration States a New and Different Cause of Action.—Where it is contended that the amended declaration states a new and different cause of action, the test is whether the added count or the amended declaration sets out a new act or thing as the cause of action, or whether it states in a different form the original act pr thing as the causo.</p> <p>3. Same—Amended Declaration Stating Same Cause of Action in a Different Form—Statute of Limitations.—Where an amended declaration merely states in a different form the cause of action set out in the original declaration, it relates back to the commencement of the suit, and is not subject to the plea of the statute of limitations.</p> <p>4. Practice-—Right to Amend After Evidence Ileard, by Discontinuing as to One Defendant.—Under our statute, the right to amend after evidence, by discontinuing as to one defendant and adding a new defendant, is clear.</p> <p>5. ' Insurance—Companies Jointly and Severally Liable with Agent Under Sec. 29, Ch. 73, R. S.— Sec. 29, Ch. 73, R. S., makes an insurance company severally as well as jointly liable with its agent. The company and its agent may be sued separately, and judgment obtained against each, but there can be but one recovery; nor can there be more than one recovery against the company for the same rebate, whether made by the act of one or a dozen of its agents.</p>

<p>Replevin.—Appeal from the Circuit Court of Johnson County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>1. Solicitor’s Fees—Co-tenant Hiring His Law Partner to Conduct Partition Proceedings.—An attorney at law, who owns an interest in land, with other.parties, and desires to have it partitioned, may employ competent attorneys to commence and conduct proceedings to secure a partition of it, even if the attorneys are copartners with him in the practice of law, so long as he does not share in the fees received by them, either directly or indirectly. • f</p> <p>2. Same—What Must be Set Forth in the Bill under Sec. Jfi of the Law Concerning “ Partition.”—It is absolutely necessary, under Sec. 40 of the law concerning “ partition,” that the complainant or complainants in the bill or petition shall accurately set forth the interest of each complainant and defendant in the “real estate" sought to be partitioned, as a condition, precedent to the payment of complainant’s attorney’s fees by all of the co-tenants of the property.</p> <p>3. Rents—Not Real, Estate.—Rents are not “ real estate,” but when they have accrued they are personal property.</p> <p>4. Same—Where One Co-tmant Receives More than His'Share in Partition.—In a partition of real estate, if one co-tenant has received</p> <p>more than his share of the rents that have accrued, he may in the same proceeding be required to account for them, if the bill is so framed as to allow it to be done, but the complainant in the bill is not bound to claim an accounting, and if he does claim it, he may dismiss his bill as to the matter of rents without prejudicing his right to attorney’s fees for conducting an amicable suit or proceeding for partitioning the real estate out of which the rents grow.</p>

Trespass on tile Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge presiding. Heard in this court at the August term, 1902.

Assumpsit, for goods sold and delivered. Appeal' from the Circuit Court of Clay County; the Hon. Samuel L. Dwight, Judge presiding. Heard in this court at the August term, 1902.

<p>1. Instructions—That Plaintiff Need Prove Only One Averment in the Declaration.—An instruction which tells the jury that it is not incumbent upon the plaintiff to prove more than one of the averments in the declaration, relative to negligence of the defendant, and that if they believe from a preponderance of the evidence that the defendant was negligent in any one of the ways averred in the declaration, then in such case as to that averment they should find for the plaintiff, is proper.</p> <p>2. Same— Where Two Witnesses Testify Directly Opposite to Each Other on a Material Point.—An instruction that where two witnesses testify directly opposite to each other on a material point the jury is not bound to consider the evidence evenly balanced so far as those two witnesses are concerned, but that they may regard all the surrounding facts and circumstances and other evidence, if any, and give credence to one witness over the other, if they think such facts, circumstances and evidence^ warrant it, correctly states the law.</p> <p>3. Practice—Dufy of Court upon Motion for a New Trial.—After verdict, upon motion for a new trial, it is the duty of the court to pass upon the sufficiency of the evidence to determine whether it justifies the verdict.</p>

<p>1. Nuisances—Action to Recover Damages for, is a Personal Action.—An action to recover damage* to land by reason of a nuisance is a personal action, and can not be assigned by deeding the land to another.</p> <p>2. Same—A Railroad Bridge and Embankment is Not a Continuing Nuisance.—A railroad bridge and embankment built and constructed more than thirty years before the injury to the land for which the suit was brought occurred, and never changed, is not a continuing nuisance.</p>

Trespass on the Case.—Death from negligent act. Error to the City Court of East St. Louis; the Hon. Silas Cook, Judge presiding. Heard in this court at the August term, 1902. This was an action brought against plaintiff in error for causing the death of Edward. Bawley in a collision on a road crossing in St. Clair county, about 10 o’clock p. m., July 16, 1898. The declaration has three counts.

Mandamus.—Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the August term, 1902. This proceeding is mandamus to compel appellant, as county treasurer of St. Clair county, to pay the relator, John A. Holder, $235 for forty-seven days’ attendance and service as the duly appointed and sworn shorthand reporter of the City Court of East St. Louis, at its August term, A. D. 1901, at $5 per day.

Trespass an the Case, for injury to animals during transportation. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge presiding. Held: without question, by the authorities in charge of the exhibition. After the exhibition was over appellee sold most of the horses, but he claims he lost heavily on a number of them, and was obliged to reship others as being unsalable. Appellee employed four men who had charge of the horses in transit.

Trespass on the Case, on promises. Appeal from the Circuit Court of Madison County; the Hon. William Hartzell, Judge presiding. Heard in this court at the August term, 1902. Orí September 18, 1898, appellees contracted with appellant to build a sidewalk twelve feet wide on Dry street, in the city of Alton, in pursuance qf which they commended excavating and grading for said walk.

Certiorari.—Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaerer, Judge presiding. Heard in this court at the August term, 1902. Appellant obtained a judgment against David B. Case-beer before a justice, for 875 and costs'. An execution was issued and levied upon certain articles of personal property which were claimed by appellee.

<p>Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Jackson County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>1. Conditional Sales—Doctrine Recognized in' This State.—The doctrine of condicional sales is recognized by the law of this state in favor of the original vendor, except as against bona fide purchasers and execution creditors.</p> <p>2. Same—Contract May Provide that in Case of Breach of Contract Property May be Presold and Vendee Receive Residue After Payment of Debt.—There is nothing inconsistent in a provision of a contract which declares that the title to the property shall remain in the vendor, until payment has been made, and that in case the vendor shall retake the property, he shall sell it and pay himself the balance of the debt and pay over the balance of the proceeds to the vendee.</p> <p>- 3. Same—In Case of Breach of Condition of Payment, Partial Payments Are Forfeited.—In the matter of conditional sale the law seems to be that if the condition of payment is not fully complied with or waived, the original vendor's rights become perfect and absolute, and he may follow the property or recover its full value, and without any deduction for any partial payments made by the original vendee; they are all forfeited.</p>

<p>1. Fraudulent Conveyances—TitU óf Purchaser from Fraudulent Grantee icitk Notice.—A purchaser from a fraudulent grantee, with notice of the fraud, will take the title subject to all the infirmities with which it is affected in the hands of such fraudulent grantee.</p> <p>2. Same—Title of Creditors with Notice, Who Take to Secure a Debt. —Creditors who, to secure a debt, take title by purchase, from a fraudulent vendee, with knowledge of his title, take only such title as their vendee had, and other creditors 'may assail the whole transaction for fraud.</p> <p>3. Debtor and Creditor—Sole by Grantor to Defeat Claims of Creditors.—If a grantor sells for the purpose of defeating the claims of his creditors, and the grantee knowingly assists in effectuating such fraudulent intent, he will be regarded as a participator in the fraud.</p>

<p>Assumpsit, on a promissory note. Appeal from the County Court of Franklin County; the Hon. W. H. Hart, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>Trespass on the Case.—Death by negligent act. Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge presiding. Heard in this court at the August term, 1902.</p> <p>This is an action by the administrator of John F. Jones, to recover damages for his death alleged to have been caused by the negligence of appellee.</p> <p>The declaration contains two counts.</p> <p>The first count charges negligence by the defendant in running its engine and train of cars within the corporate limits of the city of Carbondale at a high and dangerous rate of speed.</p> <p>The second count alleges an ordinance of the city of Carbondale limiting the rate of speed of freight trains to not more than six miles an hour, and charges negligence by reason of the violation of the same by the defendant, and the consequent injury and death of the decedent.</p> <p>The general issue was pleaded by the defendant, trial was had before a jury, and verdict rendered in favor of the defendant and against the plaintiff for costs. Motion fora new trial was made by plaintiff and overruled by the court, and judgment entered on the verdict, to which several rulings the plaintiff duly excepted and brings the record to this court for review by appeal.</p> <p>This is the third trial of this cause. The first trial was at the September term, 1899, of the Marion County Circuit Court, resulting in a verdict for plaintiff for $3,000. The defendant appealed to this court and the judgment was reversed and the cause remanded to the Circuit Court. Illinois Central E. E. Co. v. Jones, Adm’r, 97 Ill. App. 131.</p> <p>At the January term, 1902, of the said court, another trial was had resulting in a verdict in favor of the plaintiff for $2,500, which verdict, on motion of defendant, was set aside and a new trial granted. At the April term, 1902, of the said court, another trial was had, resulting in a verdict for defendant.</p> <p>The errors urged and assigned in this record are confined to alleged erroneous instructions given on the part of the defendant, and to the form of the judgment and execution.</p> <p>Eo other questions are sought to be raised.</p>

<p>Assumpsit, on a certificate of life insurance. Appeal from the Circuit Court of Massac County; the Hon. Oliver A. Harker, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>Assumpsit, upon promissory notes. • Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge presiding. Heard in this court at the August term, 1903.</p>

<p>Assumpsit., on promissory notes. Appeal from the Circuit Court of Williamson County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Marion County; the Hon. William M. Farmer, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>Mandamus.—Appeal from the Circuit Court of Perry County; the the Hon. William Hartzell, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>1. Negligence—Where a°Question of Law.—Where, after conceding as true all that the evidence tends to prove in favor of the party charging negligence, it is apparent to the court that all reasonable minds will agree in the conclusion that such facts and-conduct do not, in fact, constitute negligence, then the court may assume the absence of negligence, and direct a verdict and render judgment accordingly.</p> <p>2. Vbrdict—When to be Directed in Favor of Defendant.—Where the evidence does not tend to prove the negligence charged, it is the duty of the trial court to direct a verdict in favor of the defendant.</p>

<p>1. Statutes—No Recovery upon Instruments in Writing Entered into Without a Good and Valuable Consideration.— Sec. 13, Ch. 98, R. S., provides that in any action upon a note, bond or other instrument in writing, for the payment of money, if such instrument was made and entered into without a good and valuable consideration, the verdict shall be for the defendant.</p> <p>2. Mortgages—Error to Decree Foreclosure of Mortgage Executed in Fraud of Creditors.— It is error to decree foreclosure of a mortgage which was executed in fraud of creditors, where no consideration passed from the mortgagee. Such transaction is tainted with fraud, and as between the parties to it, a court of equity will leave them in the position in which they have placed themselves.</p>

<p>Forcible Entry and Detainer.—Appeal from the County Court of Effingham County; the Hon. David L. Wright, Judge presiding. Heard in this court at the August term, 1902.</p>

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

Trespass on the Case, for the death of a colt. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge presiding. Heard in this court at the August term, 1902.

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

Trespass on the Case.—Death by negligent act. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the August term, 1902. This suit is by Karolina Dombroski, alleged widow of James Dombroski, deceased, to recover for his death, which occurred July 3, 1901, in the coal mine of appellant, in St. Clair county.

Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge presiding. Heard in this court at the August term, 1902.

<p>Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge presiding. Heard in this court at the August term, 19Q3.</p>

Debt, to recover a penalty for violating a city ordinance. Appeal from the Circuit Court of Jackson County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in this court at the August term, 1902. Suit commenced before a justice by the city of Carbon-dale, to recover a fine from appellee for violating an ordinance prohibiting the sale of intoxicating liquors in said city. The city made default before the justice, but appealed the case to the Circuit Court.

<p>Assumpsit, on a benefit certificate. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge presiding. Heard in this court at the August term, 1902.</p>

<p>1. Injunctions—Liens.—Upon consideration of the peculiar facts and circumstances of the case the court are of the opinion that the evidence warranted the action of the trial court.</p>