Volume 11 — Illinois Appellate Court Reports

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.</p>

<p>1. Deceit — Action fob. — In actions for deceit itis incumbent upon the plaintiff to show, by a preponderance of testimony, that the representation was false; that it was known to he so by the defendant when he made it; that it was relied on by the plaintiff as true; that it related to something that was material and operated to induce the plaintiff’s action in making the contract.</p> <p>• 2. Diligence on part op plaintiff. — If by any ordinary degree of precaution the plaintiff could have ascertained the falsity of the statement or representation made to him, he is not entitled to recover in this action.</p> <p>3. Measure of damages. — In an action for deceit in the sale of land the measure of damages would be the difference between the actual value of the land, and what it would have been worth, if as represented by the vendor, with interest on such difference. ___ . _______</p>

<p>Appeal from the Circuit Court of Jo Daviess county; tlie & Hon. John Y. Eustace, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. A. A. Smith, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Iiane county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>1. Pleading — Office of replication. — It was not competent, except in a plea of confession and avoidance, to do more in the-replication than to take issue on the allegations of the pleas as to the date.</p> <p>2. Facts, not conclusions, must be averred. — An averment that there was no rent due or to become due which was a lien upon the crops in question, was not a sufficient averment. It was a question of law, and in order to raise it, facts, not conclusions, must be averred.</p> <p>3. Landlord — Eight to distrain — Not waived by taking other security. — The taking of other security is not a waiver of the landlord’s right to distrain for rent. And a landlord may pursue both remedies at the same time.</p> <p>4. Action for illegal distress — Recoupment of unpaid rent.— It seems, that in an action of trespass by the tenant against his landlord for an illegal distress, the latter may recoup to the extent of rent unpaid, although the rent may not be due.</p>

<p>Error to the County Court of Will county; the Hon. Benjamin Clin, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will, county; the Hon. Josiau McRobeets, Judge, presiding.</p>

<p>1. Chancery — Evidence in a decree. — Where the decree recites that certain facts were found from the evidence, and such facts are sufficient to sustain the decree, no other preservation of the evidence is necessary, and a party not satisfied with such decree can insist upon a certificate of evidence.</p> <p>2. Finding of trial judge conclusive. — The finding of the court below, that certain facts are established by the evidence, must be taken as conclusive by this court, in the absence of a certificate of evidence or proper bill of exceptions. ,</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.'</p>

<p>1. Paid capital stock — Liability op stockholder — Payment in lauds. — Where a subscriber to capital stock of a corporation has paid for the same; he is not liable under the statute for debts of the corporation, and it is immat ;rial whether such stock is paid for in money or by the transfer in good faith to the corporation of lands for the benefit of the latter.</p> <p>2. Directors cau not make stockholder liable. — The stock being paid for and issued as paid stock, the directors of the corporation can not, by a subsequent resolution without the assent of the stockholder, change the character of the stock, and by declaring it unpaid, create a liability against the stockholder.</p> <p>8. Creditor of the corporation. — Where the party seeking to enforce the liability of a stockholder was not a creditor of the corporation at the time the stock was paid for, he will be considered as having given credit to it in the condition it then was, and an examination of the books of the corporation would have shown him that the stock was fully paid.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. ■ C. W. Upton, Judge, presiding.</p>

<p>1. Master and servant. — An employe when he enters upon any service, assumes all the ordinary hazards of' such service, and if he has knowledge of (he unsafe condition of machinery or appliances used by him, and continues in such service after having such knowledge, he can not recover for injuries received by reason thereof, unless the master coerced him into danger or in some way contributed to the injury.</p> <p>2. Negligence a question for the jury —Negligence in regard to the proper construction of the platform and its position with reference to the track was a question for the jury.</p>

<p>1. Employer and servant — Inventions by'servant. — An invention is the product of the mind, and as between employer and employe, it belongs to the one who conceives the idea and follows it out to practical invention.</p> <p>2. Contract — Employe to make improvements. — A contract between employer and employe that the latter shall give his time to the inier-. ests of the former in the manufacture and improvement of shelters and powers, does not give the employer the title to an invention in check rowers made by the emplojTe while at work manufacturing the latter machine for his employer.</p> <p>3. Models made by employer. — The fact that the invention was perfected while the inventor was receiving pay as an employe, and the models were made by his employer, only gives the latter a claim for labor and material against the employe; it gives his employer no property in the invention.</p>

<p>Appeals — Eeeehold.—Where a freehold is involved, the appeal should be taken direct to the Supreme Court. A bill in the nature of a creditor’s hill seeking to divest a; title and declare a defendant as holding real estate in trust for another, involves the question of a freehold, and this court has no jurisdiction.</p>

<p>Forcible entry and detainer. — The wife of appellant was entitled to possession and held the same as heir and tenant in common with other heirs of the former owner of the premises. There was no forcible entry and her possession was lawful. The possession of appellant, if any, was as the agent of his wife, and the action should have been against both. The result of a judgment against appellant would be the separation of husband and wife, or an ousting of one who had a right of possession, which in either case could not be done.</p>

<p>1. Mortgage — Right op possession by mortgagee — Homestead. —The . decree found that as to a large portion of the amount the mortgage was superior to the wife’s claim for homestead and dower. Held, that in default of payment of that portion to which dower and homestead was subject, the mortgagee’s right of possession was as absolute as if it had constituted the whole. To avoid liability to dispossession, the wife was bound to pay, or tender, or otherwise discharge the superior claim, whether it was the whole or only a part of the mortgage indebtedness.</p> <p>2. Injunction against threatened trespass. — Where the injury threatened is a mere trespass, to be consummated by a single act, and susceptible, in legal contemplation, of complete reparation by pecuniary damages, a court of equity will not interfere by injunction to restrain the act threatened.</p> <p>S. Dissolution op injunction — Restoration op parties to former state. — Upon the dissolution of an injunction, it is proper to undo whatever has been wrongfully done by means of it. So, where a party being legally in possession under a writ of restitution, has been forcibly dispossessed, and afterward restrained by injunction from again taking possession, it is proper, upon dissolution of the injunction, to restore to him his former possession.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Charles Kellum, Judge, presiding.</p>

<p>1. Pleading — Answer.—An answer setting up in general terms that defendants made their arrangement with the complainant, etc., is sufficient to let in proof that the arrangement was made with complainant’s agent.</p> <p>2. Usury — Loans by an agent — Where one deposited money to the account of another with privilege of loaning it, stipulating that it should net the owner ten per cent., such person becomes the general agent of the owner; and if the agent exacts usury upon his loans, the principal is presumed to have known and authorized it. jUnless such presumption of knowledge is rebutted, the transaction will be usurious.</p> <p>3. Cross-bill — Tender.—To an action to foreclose a mortgage, the defendants filed a cross-bill for relief on the ground of usury. Held, that it was properly dismissed for a failure of defendants to offer to pay the amount due with legal interest thereon.</p>

<p>Appeal from' the Circuit Court of Grundy county; the Hon. George W. Stipp, Judge, presiding.</p>

<p>1. Master and servant. — A person who voluntarily exposes himself to a danger that he knows or by reasonable attention might know, assumes all the risks incident thereto, and can not recover for an injury resulting therefrom, even against one whose negligence caused it.</p> <p>2. Fellow servant. — The foreman of a company of men employed by a railway company is a fellow servant with those under him, and for an injury to one of them caused by his negligence the company is not liable.</p>

<p>1. Allegations and proof. — In actions for damages occasioned by negligence, the evidence must conform to the allegations as to the cause of the injury.</p> <p>2. Damages — Expense of physician. — In such actions it is error to instruct the jury that the plaintiff may recover the exnenses of a physician in being cured of the injury, unless there is some evidence that plaintiff has paid or become liable to pay some amount as such expenses.</p>

<p>Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.</p>

<p>. 1. Taxes — When refunding may be compelled. — In order to create a liability on the part of a municipality to refund a tax alleged to have been paid upon an illegal assessment, it is necessary that the tax should be illegal and void; it must have been paid under compulsion or its legal equivalent, and it must have been paid over by the collecting officer and have been received to the use of the municipality.</p> <p>2. Collector — Not an agent of municipality. — A town collector when collecting taxes does not act under any authority derived from the city, and is in no way subject to the supervision or control of the municipal authorities, nor can he by any act of his bind the city. As to taxes collected by him for the city, he is a mere trustee and in no proper sense the agent of the city.</p> <p>3. Lien of warrant will not constitute duress. — The mere fact that under the statute a collector’s warrant is a lien upon the property taxed from the time it comes into the hands of the collector, does not constitute duress or its equivalent.</p>

<p>1. Custom. — A custom, to be binding, must be uniform, long established, reasonable, generally acquiesced in, and so well known as to induce the belief that the parties contracted with reference to it, when nothing is said to the contrary.</p> <p>2. Instruction as to custom. — An instruction as to the rights of parties being affected by a custom, is erroneous if it fails to direct the jury in respect to the qualifications which the law regards as indispensable to a valid and binding custom, such as may properly be resorted to in ascertaining the intention of the parties.</p> <p>3. Sale by sample. — If the sale was by sample, so that an implied undertaking arose that the bulk should correspond with the sample, and if it did not, the contract could be rescinded by the purchaser offering within a reasonable time to return the goods purchased.</p> <p>4. Entirety of sale. — The sale being entire of six cases of goods, the purchaser, in order to rescind the contract, must offer to return all the goods ■ purchased; an offer to return a portion only does not amount to a rescission.</p>

<p>1. Contributory negligence — Instruction.—Where there is evidence tending to show negligence on the part ofthe plaintiff, an instruction as to the liability of the defendant, which ignores the question of contributory. negligence, is erroneous.</p> <p>2. Slight and gross negligence. — As applied to the question of contributory negligence, the words “slight,” and “gross,” are to a great extent relative terms. The doctrine of comparative negligence is founded upon a comparison of the negligence of the plaintiff with that of the defendant, and this element of comparison is of the very essence of the rule, and should be referred to in instructions upon that question.</p>

<p>Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.</p>

<p>1. Malicious prosecution — Joint liability. — Where the evidence shows that one of the suits complained of was commenced by the husband without the knowledge or concurrence of his wife, and the others were commenced by her without his knowledge or concurrence, there can be no joint liability in an action for malicious prosecution. No such liability can arise because the parties stand in the relation of husband and wife.</p> <p>2. Conspiracy. — A conspiracy can not be proved by showing acts of the alleged conspirators done separately, but the conspiracy must be shown as an independent fact before the acts of one conspirator are admissible against the other for any purpose.</p>

<p>1. Obstruction causing overflow of land. — In an action for damages caused by erecting a dam or embankment whereby plaintiff's land was overflowed, it is not necessary to a cause of action that the obstruction complained of .caused the water to both overflow and remain on the land to a greater extent than it otherwise would, and an instruction to that effect is erroneous.</p> <p>2. Overflow from other causes. — In such an action, an instruction that if a part of plaintiff’s land was overflowed by means other than the building of the dam in question, the defendants were not liable for such overflow is clearly erroneous.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p>

<p>Buildinq- contract — Certificate of architect. — Where a building contract provides for payment upon the architect making a certificate of performance, the obtaining of such certificate from the architect is a condition precedent to the builder's right to payment, unless such certificate has been fraudulently or unreasonably refused or withheld, or has become impossible by reason of the death of the architect' or has been otherwise legally dispensed with.</p>

<p>1. Appeal prom justice court — Appearance—Filing trial notice. — The circuit court has no power to proceed to trial or dismiss an appeal from a justice of the peace, without the consent of the appellant, unless the appellee has been brought into court ten days before the term, either by service of summons, the return of two nihils or voluntary, appearance. The filing of a trial notice by appellee is not such an entry of appearance as is contemplated by the statute.</p> <p>2. Payment op costs op appearance. — The payment of the statutory costs of entering an appearance is a condition precedent to the right of appellee to enter his appearance.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, of the Superior Court sitting as Circuit Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.</p>

<p>1. Pleading — Torts.—If the plaintiff, though needlessly, describe the tort and the means adopted in effecting it, with minuteness and particu-" larity, and the proof substantially varies from the statement, there will be a fatal variance.1</p> <p>2. Instructions. — An instruction which professes to comprehend a statement, hypothetically, of all the facts necessary to a recovery, and ignores facts testified to by one party, is erroneous.</p>

<p>1. Finding unsupported by evidence. — The court is of opinion that _ the finding below is not supported by the evidence, and reverses the judgment for that reason.</p> <p>2. Evidence — Impressions of witness — An impression of a witness, although it may convey the idea of a certain degree of recollection, is an equivocal term, and unless it is made to appear that it is derived from recollection, it can not be admitted in evidence.</p>

<p>1. Practice — Imperfect record. — This court is bound by the record as filed. If it is inaccurate it is in the power of the party injured thereby to suggest a diminution of the record and have the correction made at any time before a final hearing of the cause.</p> <p>2. Contributory negligence. — An instruction attempting to state the rule as to contributory negligence must refer to a standard of comparison of the negligence of both parties.</p> <p>i 3. Permanent injury. — It was error to submit to the jury the question of permanent injury to the plaintiff, there being no evidence to show a permanent injury.</p>

<p>1. Sale — Authority of agent. — In all cases, whether the agency be of a general or special nature, it includes, unless the inference is expressly-excluded by other circumstances, all the usual modes and means of accomplishing the objects and ends of the agency. So, an agent employed to sell, has authority to give the purchaser a reasonable time within which to accept or reject the proposition of sale.</p> <p>2. Agency — Ratification.—Slight circumstances will sometimes suffice to raise the presumption of a ratification, and where a principal, on being informed of the act of his agent, merely replied that he was sorry, and did not dissent at once, he will he considered as having ratified such act.</p>

<p>Appeal from the Superior Court of Cook county ; the Hon. Joseph E. Gtary, Judge, presiding.</p>

<p>Evidence — Declarations of agent. — It is the general rule that where the acts of the agent will bind his principal, there his representations and declarations respecting the subject-matter will also bind him, if made at the same time and constituting a part of the res gestae. But .a declaration in a letter by an agent, who was also guarantor -upon notes of the principal, respecting the payment of the notes, even if the language can be construed into a threat to fraudulently conceal property so as to hinder creditors, can not be regarded as within the scope of the agent's authority, and do not bind the principal.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, of the Superior Court, sitting as Circuit Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John G-. Rogers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the BLon. William II. Snyder, Judge, presiding.</p>

<p>Error to the City Court of East St. Louis; the Hon. Charles T. Ware, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>1. Sheriff’s fees in criminal cases. — The law providing for payment by the county to the sheriff of fees in criminal cases, where no conviction is had, applies only in cases where the whole amount of fees collected by the sheriff is less than his salary, as fixed by the proper board of county officers.</p> <p>2. Approval of account by county board. — The fact that the county board approved the reports of the sheriff showing amounts due him for salary and expenses after deducting fees collected by him, imposed no obligation upon the county to pay him.</p> <p>3. Allowances for deputy, clerk, etc. — Where the county hoard fixed the salary of sheriff for the full term at $2,400, and his expenses for deputy, clerk, etc., amounted to nearly $1,000, while the fees actually collected amounted to only $2,440, held, that he was not entitled to pa,y from the county for fees earned in criminal cases where no costs were collected.</p>

<p>1. Removal oe cause — Amendment changing amount claimed.— After a petition, and bond for removal of a cause to the federal court has been filed, as required by statute, the right to a removal becomes fixed, and can not be evaded by an amendment reducing the amount claimed to less than five hundred dollars.</p> <p>2. Test oe jurisdiction — Ad damnum. — In actions of tort the amount stated in the ad damnum of plaintiff’s declaration is the test of jurisdiction upon the question of removal of the case, and if this be so stated at moro than $500, the cause is removable, notwithstanding a less sum may bo claimed in the body of the declaration.</p>

<p>1. Proposition and acceptance. — In determining the question of acceptance of a proposition, regard must be had to the surrounding circumstances and whether they indicate that the proponent intended or expected an acceptance in terms. So, where, in reply to a proposition by letter to rent certain lands, the owner gave consent qualified as to some of its terms, and saying that if they did not receive a call from him within a certain time they might have the land upon the terms then given.in his reply, held, that under the circumstances an acceptance in terms was not necessary, and the act of appellants in taking possession of the lands and doing work thereon constituted an acceptance.</p> <p>2. Forcible detainer — Separate occupation. — Testimony tending to show that appellants occupied the tract in severalty, was admissible in an action of forcible detainer against them jointly.</p>

<p>1. Rent as between mortgagor and mortgagee after title passes. — As between mortgagor and mortgagee or kis assignee, rent that accrues after the time for redemption expires, and master’s deed, passes to the mortgagee or his assignee. The fact that the rent was to be paid in a portion of the crop raised, and at the expiration of the time of redemption was severed from the soil (but not due and payable) can make no diflerence.</p> <p>2. Judgment in excess of ad damnum. — It is error to render judgment for a greater amount than is claimed by the plaintiff, but such error may be cured by entering a remittitur in the appellate court.</p>

<p>1. Usury — National banking act. — Under the act relating to national banks the penalty for charging usurious interest is a forfeiture of the entire interest, and in cases where usurious interest has been actually paid, the party may recover double the amount of interest paid.</p> <p>2. Set-off or counter-claim:. — In cases where usurious interest has been paid, the remedy of the party seeking to recover the statutory penalty of double the amount, is by an action of debt; such penalty can not be set up by way of set-off or counter-claim to a suit brought to recover the principal sum.</p> <p>3. Statute of limitations. — The provision of the statute requiring actions for the recovery of usurious interest to be brought within two years, applies only to cases where the usurious interest has actually been paid.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>1. Telegraph companies — Liability—Failure to send message promptly. — A telegraph company is in some respects like a common carrier, and is under a duty to perform the service it undertakes in a prompt and skillful manner, and for any breach of this duty it is liable to the party injured, whether he he the sender or receiver of the message.</p> <p>2. Objection to evidence. — An objection to the admission of evidence should be made upon the trial and in such manner that the objection may he obviated by producing other witnesses or otherwise. It is error to allow objectionable evidence to be heard without objection and afterward exclude it from the jury by instruction.</p> <p>3. Technical terms in instruction. — The defense being that the failure to transmit was caused by a break in the wires, occasioned by a storm, an instruction using the term “atmospheric causes,” as applied to the cause of failure, may have been misleading.</p>

<p>Appeal from the County, Court of Johnson county; the Hon. C. M.’ Dambón, Judge, presiding.</p>

<p>1. Enforcing reservation in grant of right of way. — Where a person by deed poll granted the right of way to a raihoad company over his lands, expressly stipulating that the company “shall erect and maintain such crossings as may be necessary to the accommodation of persons whose lands are divided by said track, and shall erect suitable fences,” etc., and the company accept such deed and enter upon the -land, the grantee of such grantor may have an action in his own name against the company for a failure to maintain crossings. ,</p> <p>2. Assumpsit will lib. — In such cases the acceptance by the company of the grant and occupation of the land, raises an implied contract or promise to perform on its part, and assumpsit wdl lie. 15</p>

<p>1. Pabol evidence to vaby wbiting..- — The" rule that parol contemporaneous evidence is not admissible to vary the terms of a written instrument applies as well to a receipt as to any other writing so far as it is evidence of a contract, though so far as it is evidence of payment it is only prima facie evidence and may be contradicted.</p> <p>2. Rule applies only between parties. — The rule excluding such evidence applies only in suits between the parties to the instrument, and when the suit is between one of the parties and a third person the rule is not applicable.</p> <p>3. Estoppel. — Estoppels are founded on intention and can not be extended to objects and purposes which the parties can not reasonably be supposed to have had in view. The same principle which will create an estoppel for the prevention of fraud will suppress one when fraud will be produced by its existence.</p> <p>4. Application op principle.-^-Where an executor or trustee in his lifetime sold trust lands in connection with lands owned by him in his own right, for a specified sum per acre for the whole tract, the trust lands being of less value per acre than the other, and- gave a receipt or memorandum of the sale stating the price per acre for which the whole sold; held, in a suit to recover the money received for the trust lands, that it was competent to show the actual value of the lands held in trust, and that in fact the purchase of the other land was the inducenient for the whole contract. Held, further, that the receipt or memorandum of sale could be contradicted in respect to the value of the land per acre as therein stated.</p>

<p>1. Exemption — Schedule.—If a judgment debtor would avail himself of the law exempting personal property, he must make the schedule required by the statute.</p> <p>2. Sale by debtor of exempt property. — After an execution has become a lien upon personal property, a purchaser of such property from the debtor, though it may be exempt, can not hold the same as exempt, unless the debtor has made a schedule, as required by law.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. F. IT. Piepeh, Judge, presiding.</p>

<p>1. Nuisance. — If a tenant uses the premises in such a manner as to create a nuisance, the landlord has a right to abate it.</p> <p>2. Punitive damages. — Such damages are awarded when the act complained of is characterized by fraud, malice, gross negligence, or oppression; and unless some of these elements mingle in the controversy, only actual • damages may he allowed.</p> <p>3. Entry of landlord on demised premises — Damages.—For a more unlawful entry upon demised premises after the expiration of the tenancy, unaccompanied by a trespass, only nominal damages can he recovered.</p>

<p>Appeal from the Circuit Court of Effingham county; the Hon. Aojias S. Casey, Judge, presiding..</p>

<p>Negligence — Safety of machinery. — An employer is not an absolute insurer to the servant that the appliances furnished are safe and sufficient. He is only required to use reasonable diligence in this respect.</p> <p>2. Servant’s knowledge of danger. — If a servant knows that what is provided is not safe and fit he should quit the employment, and if he does not, but continues it, he is deemed to have assumed the risk of all such known defects, unless he has been induced by the master to believe that the defect will be remedied.</p>

<p>1. Criminal law — Information.—An information takes the place of an indictment, and like it should show that the act was unlawful, and should state specifically the manner and character of the act.</p> <p>2. Trial without plea. — It is error, in a criminal case, to proceed to trial wi hout plea or issue joined, unless the defendant stands mute.</p> <p>y. Mutilation of animals. — A party has an undoubted right to use such means as are necessary to drive trespassing animals out of his fields, and if it result in mutilation of the animals he can not be said to have violated any law.</p>

<p>Appeal from the Circuit Court of Pulaski county; the Hon. Jesse J. Phillips, Judge, presiding.</p>

<p>1. Evidence — Certified copy of deed. — Where the certificate of the official character of a justice of the peace, attached to a certified copy of a deed, fails to state that the person taking the acknowledgment was at the time of so doing a justice of the peace, such certified copy is not admissible in evidence.</p> <p>2. Foreign deed. — In order to admit a deed executed in another State in evidence, it must appear that the deed was executed and acknowledged in conformity with the laws of such State.</p> <p>3. Cutting timber — Prosecution for — Color of title. — In a prosecution under the statute for cutting timber on the lands of another,'the defendant may put in evidence a tax deed to a third party, and authority from such party to cut the timber in question. The tax deed is color of title.</p> <p>4. Instruction. — It is for the jury to find the facts and not for the court "to instruct them as to what the evidence shows the- facts to be.</p> <p>5. Record should show plea. — In all criminal proceedings and in misdemeanors it is necessary that the plea of defendant should be entered of record.</p>

<p>Instruction misleading. — In an action against the estate of a deceased person to recover for expenses of keeping his children, an instruction on the part of the defense that before the plaintiff can recover he must show by a preponderance of proof that at the time of rendering the service he expected pay from and actually did charge the same to the defendant, is erroneous, because having a tendency to mislead. It is not necessary that the plaintiff should keep an account with deceased, and charge him with each item.</p>

<p>Error to the County Court of Union county; the lion. Thomas Heilman, Judge, presiding.</p>

<p>Appeal from the City Court of Alton; the Hon. A. H. Gamjbrill, Judge, presiding.</p>

<p>Aldermen — Qualification for office — Residence.—The charter of the town of Flora, section two, provides that the board of aldermen shall consist of two members from each ward, and by section three it was provided that no person should be elected alderman unless he shall have previously resided in the town for cne year, etc. Held, that a residence in the ward for which he was elected was not a necessary qualification of one elected to the board of aldermen.</p>

<p>Appeal from the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Error to the .Circuit Court of Crawford county; the Hon. James 0. Allen, Judge, presiding.</p>

<p>Error to the Circuit Court of Franklin county; the Hon. D. M. Browning, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jasper county; the Ron. Thomas S. Caset, Judge, presiding.</p>

<p>1. Growing Crops — Eight of purchaser at foreclosure sale— Failure to waive homestead. — A purchaser at a sale under a mortgage or trust deed, is entitled to the crops growing on the mortgaged premises. But where, by a defect in acknowledgment, the mortgage deed does not convey the homestead right, a purchaser at such sale is not entitled to-that portion of the growing crop sown upon the homestead.</p> <p>2. Purchaser at tax sale. — A purchaser at a tax sale, or his grantee, acquires only the land and the right to obtain possession thereof by action of ejectment, and damages for the rents and profits, under the statute.</p> <p>3. Homestead — Extent.—A householder is entitled to a homestead to the extent in value of $1,000, in the farm or lot and buildings thereon, owned by him. Courts will take notice of the subdivisions of own and city property into lots and blocks, and the legal subdivisions by government surveys of land in the country; and where a debtor has a dwelling on any given forty acre tract which, with the buildings thereon, is of the value of more than $1,000, his exemption of a homestead is confined to that tract of land.</p>

<p>Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Appeal prom a justice — Irregular bohd. — It is error to dismiss an appeal from a justice of the peace for a mere informality in the appeal bond. It is the duty of the court to allow an amendment of the appeal bond.</p>

<p>Error to the Circuit Court of Vermillion county; the Hon. J. W. Wilkin, Judge, presiding.</p>

<p>1. Railroads — Killing stock. — The evidence does not show that the train of appellant was being driven at an unusual rate of speed when the killing complained of occurred. It was running at the usual rate of speed. A rate of speed that would be highly dangerous or even reckless in a populous city with numerous street-crossings, might not be regarded as dangerous in leaving a town, after reaching its sparsely settled suburbs.</p> <p>2. Negligence, slight and gross. — An instruction upon the question of comparative negligence is erroneous if it violates the rule requiring that plaintiff’s negligence must be slight, and the defendant’s gross, in comparison.</p>

<p>1. Contract in restraint oe trade. — A contract not to engage in business in a certain place may be enforced by an action at law for the recovery _of damages for its breach, and it will also be upheld in equity.</p> <p>2. Measure oe damages eor breach. — In case of a breach of a contract in restraint of trade, the plaintiff is entitled to recover the actual damages sustained from the breach, and not the consideration paid.</p>

<p>Error to the Circuit Court of Greene county; the Hon. A. G. Burr, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. J. II. Williams, Judge, presiding.</p>

<p>Contract — Regulations respecting teachers in schools. — Appellee was first appointed a teacher in the colored school of appellant, which she declined. Afterward she was appointed a teacher in the white school, which appointment she accepted, as per notice, “subject to the requirements, etc., of the board of education.” Being afterward assigned to the colored school, she refused to teach. Held, that the “ requirements ” referred to in the notice of the appointment were a part of the contract, and as these gave the board coeducation power to assign teachers to any school, her refusal amounted to a rescission of the contract.</p>

<p>1. Jurisdiction — Franchise.—An action brought to enjoin the nnauthorized use of a street by a railroad company and others, is within the appellate jurisdiction of this court; the question of a franchise is not involved.</p> <p>2. Railway in streets — Power of city council. — Where a railroad track is laid down in a street, by authority of the city council, to connect a private manufacturing establishment with other railroad tracks, it becomes a public highway, and the city council have a right to devote a portion of the street to that use.</p> <p>3. Remedy at law. — The remedy of a person sustaining injury by the construction of a railway in the street of a city, under license granted by the city council, is at law, and a court of chancery has no jurisdiction.</p>

<p>Note — Surety.—Where the principal maker of a note, acting as the agent of another party, with money received from his principal, purchases such note from the holder, and the note is indorsed in blank and delivered to the principal, it is not a payment of the note, and the surety is not discharged.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. G. B. Smith, Judge, presiding.</p>

<p>1. Re-docketing cause — Notice to take depositions. — Where a party failed to take the proper steps to have a'cause re-docketed, and for this reason the motion to re-docket is overruled, and afterward, upon proper notice the cause is re-docketed, a notice to take depositions served in the interim and before the cause is properly on tho docket, is of no avail, and it is not error to suppress depositions taken in pursuance of such notice.</p> <p>, 2. Judgment not reversed for error in instructions. — Where it is apparent from the whole record that substantial justice has been done, the judgment will not be reversed for a technical error in an instruction.</p>

<p>i 1. Practice in chancery — Reference to master. — Where an accounting is to be had, and the accounts are of longstanding and complicated, it is the duty of the court below to refer the cause to a master in chancery, for the purpose of stating the account.</p> <p>2. Written agreement — Subsequent parol contra ct. — Although parties may have entered into a written contract respecting certain transactions, they may make a subsequent independent agreement by parol, touching the same matters.</p> <p>3. Trial of chancery case on appeal. — The appellate court in reviewing the proceedings in a chancery case, tries the cause on the record as the court below should have tried it, and as a general rule there are no presumptions in favor of a decree as in the case of a judgment at law.</p>

<p>1. Exceptions — Must be taken. — Objections to the action of the court below in ruling upon motions must be preserved by exceptions properly taken, or they can not be considered on appeal.</p> <p>2. Motion in arrest oe judgment. — The question of the sufficiency of a declaration can not be raised on a motion in arrest of judgment after a demurrer to the declaration has been interposed and overruled, and the defendant has pleaded over.</p>

<p>1. Correcting written lease — Mistake.—In order to maintain an action for the correction of a written contract on the ground of mistake, the mistake must be mutual. Rectification can only be had when both parties have executed an instrument under a common mistake, and have done what neither of them intended.</p> <p>2. Evidence must be clear and satisfactory. — A deed will not he reformed by decree of a court, so as to make it express something entirely • different from what is written on its face, except upon evidence of the clearest and most satisfactory character; such as to leave no fair and reasonable doubt upon the mind as to the intention of the parties.</p>

<p>1. Foreclosure — Parties.—It is the duty of a complainant in foreclosure to make all persons parties who have an interest in the mortgaged lands; such as subsequent purchasers of portions of the premises mortgaged.</p> <p>2. Deed to secure covenants — Right of grantee to perform covenants of grantor. — Where the owner of lands gave a deed of trust thereon conditioned to pay to a third person a sum of money in case he did not, upon the coming of age of a minor child, secure her release of her interest in land sold to such third person by such grantor, the purchaser from the grantor of the lauds covered by such trust deed may, upon'the happening of the contingency, perform the covenant of his grantor and save his land; but he is not entitled to notice from the holder of the trust deed before the latter brings suit to foreclose. The holder of the trust deed may purchase the interest of the minor heir and reimburse himself in an action upon the deed of trust.</p>

<p>1. Master and servant — Injuries to servant. — A master is liable to a servant for injuries received by him while in his employ, only when he fails to employ reasonably skillful workmen or suitable machinery and implements, properly constructed for the use intended and of proper material.</p> <p>2. Master not an insurer. — A master is not an insurer that the workmen he employs are skillful and prudent, or that the workmanship and materials used in the'construction of machinery are absolutely proper and suitable.</p> <p>3. Servant assumes risks of the service. — A servant when he enters an employment assumes the risk of the ordiniry hazards of such employment, whether from the carelessness of fellow-servants, latent defects in, or the ordinary dangers of the use of the machinery employed in the business.</p> <p>4. _ Negligence of servant. — A master can not be made liable for an injury caused by the servant’s own negligence, or that of his fellow-servants _ in the same line of business.</p>

<p>Error to the Circuit Court of Sangamon county; the Ron. O. S. Zane, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.</p>

<p>Appeal from the Oircuit Court of Greene county; the Hon. A. G, Burr, Judge, presiding.</p>

<p>1. Vendor’s men — Growing crops. — A vendor’s lien created by express contract in the deed is in effect a mortgage, and as in a mortgage, the crops growing on the demised premises are covered by the lien, until severed from the soil; and if the land be sold for condition broken before severance, the purchaser is entitled to the growing crops, as against the mortgagor and all persons claiming by or under Mm.</p> <p>2. Lis pendens. — Where, at the time a party becomes a tenant, there is a suit pending in reference to the lands rented, whatever rights the tenant has he takes in subservience to the rights of the parties, as finally determined in the pending litigation.</p> <p>3. Purchaser under foreclosure. — Appellees foreclosed their lien as vendors, and purchased the property at the sale under the decree. Their deed entitled them to immediate possession not only of the land, but of the crops standing thereon.</p> <p>4. Tortious taking — Demand.—The taking of the wheat' in question being tortious, no demand for its return was necessary before bringing replevin.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. J. J. Phillips, Judge, presiding.</p>

<p>1. Special pleas. — Where the matters setup in a special plea amount to the general issue, the plea is obnoxious to a special demurrer.</p> <p>2. Written contract — Ignorance of contents. — Where a party who signs a written contract can read,.it is his own negligence if he fails to understand the contents of the writing which he signs, and he can not relieve himself from liability on the ground that he was ignorant of its contents, except upon proof of fraud or coercion in obtaining his signature.</p> <p>3. Carrier — Limiting liability. — A carrier can not by contract relieve himself from responsibility for his own negligence, or that of his servants. Neither can he limit his common law liability to safely deliver property received for transportation.</p> <p>4. Contract as to notice of claim for damages. — A carrier is not restricted from providing in a shipping contract that in case any claim for damages is made, notice of the same shall be given within a prescribed time. Such a provision is reasonable and is not a limitation upon the common law duty of a carrier to safely deliver property received for shipment.</p> <p>5. Neglect to comply with such provision. — In an action against a carrier for delay in the transportation of property, where there is a contract providing that notice of loss or claim for damages must be given within five days, the question whether plaintiff has complied with the provision should be considered with other questions inthi case.</p>

<p>1. Railuoads — Killing stock. — A railway company, in running its trains, is liable for stock killed upon its track, which results from want of ordinary care and diligence, and it is not necessary that such killing should be wantonly or willfully done.</p> <p>2. Duty to avoid injury. — When animals are standing on the track of a railroad, and can be seen by the persons running a train by the use of-ordinary care, it is their duty to slacken speed or stop the train, if necessary, to avoid injuring them.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.</p>

<p>1. Insufficient evidence. — The judgmentis reversed for want of sufficient evidence to support the finding of the court as to the amount of damages.</p> <p>2. Consignor and consignee — Parties—Right of action. — A carrier can not dispute the title of the consignor, where the party delivering the property to the carrier is bound to make the shipment, or has become responsible to the carrier for his charges.</p> <p>3. Queers. — Whether, when the seller delivers the goods on board the cars in pursuance of his contract, and all shipping arrangements are made by the purchaser, and the bills of lading specify that the goods are shipped to the consignee on account of the purchaser, the latter is not to be regarded as the consignor, and the seller as his agent.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.</p>

<p>1. Common carrier — Delay in transportation. — When a common carrier receives cattle for transportation it is his duty to carry them to their destination within a reasonable time, and for a failure through gross negligence to do so an action will lie, whether the shipment was made under a special contract or not.</p> <p>2. Action independent oe contract. — In such a case the owner of the property has a right of action independent of any contract he may ha.ve, and he is not bound to sue upon his contract or to set it out in his declaration.</p> <p>3. Pleas — Evidence under general issue. — Where matters of defense set up by special pleas might be given under the general issue, such pleas are obnoxious to special demurrer.</p> <p>4. Excuse eor delay.' — While nothing but the act of God or the public enemy will excuse a carrier from the ultimate delivery of property intrusted to his care, he is not to the same ext mt liable for every delay in reaching the point of destination.</p> <p>5. Injury to stock in transportation. — A carrier of live stock is not responsible for injuries resulting from what is termed their own “proper vices,” and especially is this so when by the shipping contract the owner or his agent is obliged to accompany them and take the care and oversight of them while in transit.</p> <p>6. Delay a question eor the jury. — Whether there was delay in transportation is a question for the jury, and it was error to instruct the jury that if the carrier received the cattle with knowledge of the obstruction which caused the delay, then the carrier could not relieve itself from liability on account of the obstruction, and in that case they should find for the plaintiff.</p> <p>7. Hypothetical questions. — Hypothetical questions in the nature of expert testimony have no place in a suit of this character; and questions allowing the witnesses to base their estimate of damages upon facts and circumstances for which the defendant was not responsible should have been excluded.</p>

<p>1. Master and servant. — An employer is not bound to insure bis employe against accidents resulting from defective machinery, but his duty in that respect is discharged when he has exercised a high degree of care and diligence to guard against accidents from that cause.</p> <p>2. Defects — Notice.—If a railroad car is in good order when it leaves the shop or when placed upon the track, the company is not responsible for defects arising from use while running until notified of defects, or until in the exercise of such vigilance as the law requires, it could and would have learned of such defect.</p> <p>3. Defects caused by fellow servant. — If through the neglect of a fellow servant in the same line of employment the defect arose, the plaintiff can not recover.</p> <p>4. Contributory negligence. — An employe has a right to presume that the machinery used is safe, and if, as in this case, a person whose duty it was to set the brakes on a railroad car, is injured by reason of the nut on the brake being gone, of which he had no knowledge, he is not guilty of contributory negligence.</p>

<p>1. Notice sufficient to put upon inquiry. — A party having notice of such facts as would put a prudent person on inquiry, is chargeable with a knowledge of other facts, to which by diligent inquiry he would have been led.</p> <p>2. Notice — As to judgment creditor. — A judgment creditor has no greater equities than a bona fide purchaser, and notice which would affect the latter, would in like manner affect the former.</p> <p>3. Mistake in description of land. — A judgment creditor is chargeabb with the fact of a wrong descripti .n of land in a mortgage given by the judgment debtor, and of the true description of the land intended to be conveyed by the mortgage.</p>

<p>Error to the Circuit Court of Morgan county; The Hon. Cyrus Epler, Judge, presiding.</p>

<p>■1. Deposits m bank — Interest.—As a general rule, deposits of money in bank, subject to the checks of the depositor, draw no interest. It seems that if there should be unreasonable and vexatious delay in payment the depositor might demand interest.</p> <p>L 2. Demand before suit. — Upon a general deposit in a bank the banker is entitled to demand of payment before a suit can be sustained against him by the depositor.</p> <p>3. Statute oe limitations. — A certificate of deposit in a bank is a Sufficient evidence in writing of the existence of a debt to save the cause of action until barred by the statute of limitations relating to written instruments.</p>

<p>1. Exceptions. — Where no exceptions are taken to the action of the court below, the error assigned will not be considered in this court.</p> <p>2. Costs. — Il> was error to render a judgment for costs against the People, upon dismissing the cause.</p>

<p>Highway by prescription. — The public can acquire no right to a road over vacant and uninclosed land by use alone for twenty years.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. W. R. Welch, Judge, presiding.</p>

<p>Exceptions — Exceptions to the ruling of the court below must be taken.</p>

<p>1. Bailroads — Foreign oars — Liability for defect. — If k railroad company permits a defective and dangerous car to come into its yards or upon its tracks, and remain for so many days that it might "by the exercise of a high degree of diligence discover its condition, and if from the want of such diligence an.injury happen to an employe, who was exercising due care, the company will be liable, although it does not own the car.</p> <p>2. Doty of railroads in respect of oars. — Railroad companies are held to a high degree of care in providing safe "and suitable cars and machinery for the use of their employes, but they are not insurers of the absolute safety of such cars or machinery.</p> <p>3. Injury to employe — Negligence of fellow servant. — Every employe in entering upon his employment assumes all the ordinary risks of his employment, including the unskillfulness and negligence of his fellow servants, and to justify a recovery it must appear that the act of negligence complained of was the act of some one for whose conduct' the common principal was responsible.</p> <p>4. Duty of brakemen. — The injury was caused by a defective brake, and the car had passed several inspection stations without the defect being discovered. It was the duty of the brakemen using the car, as well as of the car inspector-to notice and report the defect, if it existed, and if they were negligent in this respect, and by reason thereof the deceased was killed, the question arises whether or not the brakemen were fellow servants with him, and if they were no recovery can be had.</p> <p>5. Care required of employe, — The deceased was a brakeman, and came to his death while coupling cars. The degree of care required to be exercised by him is the same degree of care for his .personal safety with which the same work would have been done by an ordinarily prpdent brakeman.</p> <p>6. Proper care. — An instruction that the railroad company is bound to exercise “proper ’’ care, etc., is erroneous, because it does not define what constitutes “proper'’ care. The law prescribes the degree of care required in every class of cases, and leaves to the jury to say whether such care has in fact been exercised.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.</p>

<p>1. Trust fund — Agency.—Where a person holding money in trust as guardian, placed such money in the business of another for whom he was acting as a.gent, and almost immediately thereafter drew it out of such business, his principal can not be made liable for the sum in an action by a succeeding guardian.</p> <p>2. Misappropriation op trust funds — Notice to party receiving them. — A party receiving money that has been misappropriated by a trustee, must have received the same with notice of its trust character, or he will not be liable therefor.</p> <p>3. Action at law — Remedy in equity. — Where a guardian took the funds of his wards, and used them in the business of another, for whom he was acting as agent, and afterward withdrew them from such business, a succeeding guardian can not recover such funds from the principal, in whose business they were invested, in an action at law for money had and received, but relief should be sought by a proceeding in chancery.</p>

<p>Appeal from the Superior Court of Cook county; the lion. Joseph E. Gary, Judge, presiding.</p>

<p>X. 'Gambling contract. — Time contracts for the sale and actual delivery of a commodity are valid, but if such contracts are made merely as a cover for gambling, without any intention to deliver and receive the commodity, hut merely to pay the difference between the price agreed upon and the market price, they are within the statute against gaming, and void. Ifc.is a question of the intention of the parties, and not of the form of the contract.</p> <p>2. Intention, how shown. — In such cases it is competent, in ascertaining the intention of the parties, to show how they were in the habit of dealing together in respect to like transactions prior to the one in controversy.</p>

<p>1. Discharge in bankruptcy — Debt procured by fraud. — The fraud that will prevent the discharge of a debt in bankruptcy must be fraud in fact, or positive fraud, and not implied fraud, which may exist without the imputation of bad faith.</p> <p>2. Semble. — That an objection not arsigned for error, will not be considered.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Thomas Moran, Judge, presiding.</p>

<p>1. Slander. — Whenever a specific meaning is given to the terms of a libel or oral slander, by connecting it with previous matter, the whole must be proved as being essential to the nature and identity of the charge.</p> <p>2. Extrinsic matter. — If extrinsic matter is imperatively required to be proved, with its connection with the words spoken, in order to support the cause of action, then such extrinsic matter should be submitted to and found by the jury to exist as alleged.</p> <p>3. Publication op slander. — It is necessary that the words should be spoken in the presence and hearing of a third person, in order to constitute a publication of the slander.</p> <p>4. Repetition in presence of a witness. — The repetition of the words first spoken in the presence of a third person, does not prove that they were originally spoken in the presence of' anor.her; and the repetition being made at the special request of the plaintiff, does not of itself constitute such a legal injury as will give rise to an action.</p> <p>5. Evidence — Admissions by a stranger. — -An admission by a stranger can not be received as evidence against any party.</p>

<p>1. Judgment m excess op ad damnum. — It is error to render judgment for a greater sum than that for which damages are claimed in the writ.</p> <p>2. Remittitue.-- Such an error can not he cured hy entering a remittitur in the appellate court, where execution h as issued on such judgment and been satisfied by payment before suing out a writ of error.</p>

<p>Assessment eor street improvements — Abutting property. — The right of way of a railroad company across a street can not be classed as property abutting on the street, in the sense of the statute providing for the assessment of property abutting on a street for street improvement. „</p>

<p>1. Second assessment eoe delinquent taxes. — Under the statute providing for a second assessment for the purpose of realizing from delinquent property the amount of a deficiency in the collection, it is necessary to show in the petition the amount of the deficiency, the amount realized from the first assessment, and a statement of the delinquency of the lands sought to be charged. These are all jurisdictional facts.</p> <p>2. No presumption of jurisdiction. — The doctrine of presumptions has no application to jurisdictional facts in cases of proceedings under a. statute.</p>

<p>1. Rf/plevtu— Plea of property ih defesbaht — Btmraur of proof. — Where a plea of property in defendant or in a stranger is filed’ to a declaration in replevin, it casts the burden upon the plaintiff of proving, by a preponderance of evidence, property in himself.</p> <p>2. Property in hands of an assignee. — Tf the goods in question passed to the purchaser by the sale and delivery, then the title to such property became vested in the assignee of such purchaser by his assignment for the benefit of his creditors, and plaintiffs must overcome this prima facie ownership by showing that the sale was for cash on delivery, or that they were induced to part with the property by the fraud of the purchaser.</p> <p>8. Salé for cash. — Mere evidence that it was understood by seller and purchaser that the sale was to be for cash, without evidence that the seller, at the timi of delivering the goods, exacted payment or attached any other condition to the delivery, is insufficient to overcome the prima facie case of an unconditional delivery.</p> <p>4. Unconditional delivery. — Where there is an a1 solute and unconditional delivery of goods sold, without exacting the performance of any condition precedent, the vendor will be presumed to have abandoned the security he bad provided, and to have elected to trust to the personal 'security of the vendee.</p>

<p>Dismissal of appeal. — A court to which an appeal is taken from a justice of the peace, has no jurisdiction to dismiss the appeal without the consent of the appellant where no transcript has been filed.</p>

<p>1. Contract — Proposition and acceptance. — Where the holder of certain mortgage notes wrote the owner of the land, proposing to take a deed of the premises, pay the taxes, and hold the property for three years for the benefit of the debtor, or owner, if the latter would execute a deed, deliver up title papers and surrender possession, and such proposiiion was accepted and fully executed by the debtor, the proposition became a written contract, supported by a good consideration.</p> <p>2. Parol evidence to vary writing. — The written proposition having been accepted and acted upon, it created a contract in writing which could not be varied by parol, neither could parol evidence of what the writer intended by his proposition be admitted.</p> <p>3. Declaration of trust. — A written proposition from a creditor to a debtor, requesting the execution and delivery to him of a deed of the mortgaged property and title papers, and surrender of possession, and also stating, “ I shall consider myself honorably bound, if anything can be made out of the property during the next three years, more than the interest, taxes, insurance and repairs, to give Mrs. Lake the benefit of it, ’’ when such proposition is accepted by the debtor, constitutes a valid and binding declaration of trust, and such trust may be declared and enforced in equity.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Kirk Hawse, Judge, presiding.</p>

<p>1. Pleading — Practice.—Where there were several counts in the declaration, including counts upon the contract and one alleging an accounting between the plaintiff and the defendant, it was error to instruct the jury that the plaintiff mast prove every material allegation in all the counts of his declaration, as this was tantamount to a direction to find for the defendant, there being no evidence in support of the count alleging an accounting.</p> <p>2. Matters op law submitted to juby. — By such an instruction it was left to the jury to decide what allegations in the declaration were material and necessary to be proved, and the instruction was therefore erroneous.</p> <p>3. Instructions that are not error. — The rule that erroneous instructions will not vitiate where it appears that substantial justice has been done, does not apply in cases where the evidence is strongly conflicting and the merits of the case doubtful.</p>

<p>1. Insurance — Keeping hazardous substances — Gasoline.—Where a policy of insurance prohibited the assured from keeping upon the premises without written permission, “ petroleum,” etc., the prohibition will include gasoline, a product of petroleum, although gasoline is not in terms named as one of the prohibited substances.</p> <p>2. Kerosene and refined coal or earth oils. — Gasoline, like kerosene, being a refined coal or earth oil, and “ refined coal and earth oils ” being included in the class prohibited as “ extra hazardous,” gasoline would also be included within the prohibition.</p> <p>3. Knowledge bz insurer or agent of the keeping of prohibited articles. — If the insurer or its agent, at the time of making the insurance, had knowledge of the keeping of such prohibited articles upon the premises, then the insurer would be precluded from setting up in avoidance of the policy a fact of which its agent had knowledge at the time the policy was issued.</p> <p>4. Broker not agent of insurer. — One who solicits insurance of the assured, and afterward procures a policy to be issued by the insurer, is not an agent of the latter. Nor does the fact that the insurer places its policy in the hands of the broker for delivery, make him an agent or give rise to a presumption of agency, except when there have been no previous dealings between the broker and the assured. If in fact, before the policy is issued, the assured has had dealings with the broker, or the latter is in any way clothed by the assured with the credentials of an agency, the insurer may treat him as the agent of the assured.</p>

<p>1. Purchase of lahd — Failure of title — Recovery of deposit.— In an action to recover the amount deposited as final payment upon an agreement to convey land, held, that the- purchaser was entitled, under the contract, to a marketable title.</p> <p>2. Title to be shows by abstract. — Where it was agreed by vendor and vendee that the former was to give a good title to the land sold, such title to be shown by an abstract of title to be furnished, the abstract becomes the evidence of title, and testimony outside the abstract is not admissible to prove title.</p> <p>B. Title — Re-subdivision.—The purchase was of a lot numbered “fifteen,” in a certain subdivision. The abstract of title showed a re-subdivision wherein the original lot fifteen was subdivided into lots eight an 1 nine, and another portion of the block was numbered fifteen; held, that there was a failure to show a mark-table title on account of the confusion liable to arise as to which lot “ fifteen ” was intended.</p>

<p>Appeal from the Circuit Court of Coo'k county; the Hon. M. F. Tdley, Judge, presiding.</p>

<p>Appeal from the Superior Court of Coolc county; the Hon. R. S. Williamson, Judge, presiding.</p>

<p>1. Discharge in bankruptcy — New promise. — It is the general rule that a discharge in bankruptcy will not avifil the debtor as a defense, if, after the adjudication in bankruptcy he makes an unconditional promise to pay his former creditor the debt. But where the new promise is in fraud of other creditors, it is void and can not be enforced.</p> <p>2. Composition with creditors — Secret preference. — Whsre upon a composition with his creditors by a debtor, a particular creditor by means of a secret, bargain secures to himself an undue advantage over the rest of the creditors, it is a fraud upon the other creditors, and he can not enforce such agreement.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. B. S. Williamson, Judge, presiding.</p>

<p>Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.</p>

<p>TTegtjgence — Ordinary care. — To maintain an action for damages caused by the negligence of the defendant, when there is no willful tort, it is incumbent upon the plaintiff to show that the deceased was in the exercise of ordinary care to avoid the injury at the time of its occurrence.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Sidney Smiti-i, Judge, presiding.</p>

<p>I. Set-off. — The general rule is that demands to be set off must be such • as constitute a mutual credit between the parties; but by the term “ parties ” is meant not merely the nominal plaintiff and defendant in the suit, but the j real parties in interest.</p> <p>2. Suit on replevin bond — Set-off.—In an action upon a replev'n bond, though nominally br mght in the name of the officer to whom it wa-s given, the real parties in interest being the debtors in the original suit, the creditors in the original suit, who are defendants in the suit on the replevin bond, may set off their demand against the debtor in the original suit.</p> <p>3. Parties in set-off. — In a suit against a party and his sureties a debt or demand due from the plaintiff to the principal defendant, who is the real party in interest, may be set off.</p> <p>4. Right not limited to recoupment. — The right of set-off against the real party in interest, who is not a party to the record, is not limited to a mere recoupment of danngjs arising out of the same transaction as the demand or contract sued on.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

<p>1. Pruia facie case. — A general statement by the plaintiff as a witness that the defendant is indebted to him in a certain sum is a mere conclusion of the witness, and is not such a statement of facts as will warrant the jury in finding a verdict in his favor. The circumstances of the transaction should be given in evidence, leaving to the jury to decide from them whether or not there is an indebtedness.</p> <p>2. Agencv — Ratification—Silence.—When the relation of principal and agent exists, but in the particular transaction the agent has exceeded his authority, an intention to ratify will be presumed from the silence of the principal beyond a reasonable time after having knowledge of the transaction, if he has an opportunity to express his dissent.</p> <p>3. Application op above bulb. — Plaintiff had employed defendants to buy commodities on the Board of Trade. Tne market declining, defendants sold the commodities purchased, and directly afterward presented plaintiff with a full statement of account between them, showing a balance in their favor. Plaintiff remained silent until a change in the market advanced the price of the commodities purchased, when he brought suit to recover for the advanced price. Held, that by remaining silent an unreasonable time after receiving the statement of account he would be presumed to have ratified it.</p>

<p>Appeal from the County Court of Cook county, the Hon. Mason B. Loomis, Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

<p>1. Record of deed as notice — Inquiry.—The record of a deed or mortgage is constructive notice to subsequent bona-fide purchasers or incumbrancers of only what appears on the face of the instrument as recorded. The rule that what is sufficient to put a purchaser upon inquiry is notice of whatever the inquiry would have disclosed, has no application; that rule applies to actual, not constructive notice.</p> <p>‘2. Mortgage — Should s fate amount of debt. — A mortgage describing a note of a certain date, without specifying any amount, is not a valid security as against subsequent purchasers and incumbrancers. Nor is the record of such mortgage constructive notice of any rights of the mortgagee as against a subsequent bona fide purchaser.</p>