Volume 110 — Illinois Appellate Court Reports

Assumpsit,—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902. In April, 1889, appellant being the owner of a one-thii’d interest, in the steamer “ P. D. Armour,” took out policies of insurance in different companies, covering his said interest, to the amount of $30,000. One of said policies was issued by appellee and was for the sum of $5,000.

<p>Appeal from Judgment by Default.—Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, 'Judge presiding. Heard in the Branch Appellate Court at the October term, 1902. This is an appeal from a judgment in favor of the plaintiff in a suit for the alleged wrongful killing of plaintiff’s intestate, Michael Corbett, by a falling brick striking him on the head.

<p>Bill to Foreclose a Trust Deed.—Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judgp presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

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

<p>1. Contracts— What Must be Shown to Recover Where Contract Provides for the Performance of Concurrent Acts.—Where, by the terms of a written instrument, defendant promised plaintiff to pay him $135 on condition that plaintiff then turn over to him by “proper assignment” the warehouse receipt mentioned in said instrument, the turning over of the warehouse receipt by proper assignment and the payment of the $125 were by the terms of the instrument to be concurrent acts. In order for plaintiff to recover against defendant he was bound to show an offer or at least a present ability to turn over to defendant by proper assignment the warehouse receipt upon payment of the $125.</p>

<p>1. Pleading — Declaration Stating No Cause of Action Against Defendant.—Where a pleader undertakes to show how and in what way the defendants “ did not exercise reasonable care for plaintiff’s safety,” and to this end avers a negligent act committed by one of the defendants, such declaration states no cause of action against the other defendant.</p> <p>2. Saws,—Declaration Omitting to Allege a Right of Action Not Curedby Verdict.—If a declaration omits to allege any substantial fact which is essential to a right of action and which is not implied in or inferable from the findings of those which are alleged, it is defective, and will not be cured by verdict.</p>

<p>I. Damages—Not Allowable for Demurrage Where No Evidence of Market Value or Earnings of Vessel is Introduced.—In a suit for damages caused by injuries to a vessel there can be no recovery for demur-rage in the absence of any evidence as to the market value of the vessel, or as to her net earnings.</p>

<p>1. Chancery Practice—When Court of Chancery Has No Jurisdiction to Try the Title to Office.—A court of chancery has no jurisdiction to try title to office upon a bill filed for that purpose, the proper remedy being by quo warranto.</p> <p>2. Same—Oourt of Chancery May Determine Who Are Proper Officers Incidentally to Giving of Other Relief.—A court of chancery may determine who are the proper officers by way of affording incidental relief where it has jurisdiction upon other grounds.</p> <p>3. Corporations—Personal Interest of Stockholder Not to Preclude His Voting on Any Measure.-—Each stockholder represents himself and his own interests only, and his right to vote upon any measure is not in any way affected by the fact that he has a personal interest therein different or separate from that of the other stockholders.</p> <p>4. Same—Right to Vote Stock is Prima Facie in Owner, According to the Books of the Corporation.—The right to vote corporate stock is prima facie in the person who has the legal title as shown by the records of the corporation.</p> <p>5. Same—Insurance Company May Open Office and Do All Business Except Issuing Policies, Without Making Deposits Required by Section 180 and 181, Ch. 78, R. S.—The organization of an insurance company under the act of 1869 is complete for all purposes except issuing policies, when its charter has been filed as required by statute and approved by the attorney-general, and its capital stock subscribed and directors elected.</p>

Bill for an Injunction.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903.

<p>Bill tor an Injunction—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in this court at the March term, 1903.</p>

Bill for ail Injunction.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in the Branch Appellate Court at the March term, 1903. Appellee filed its bill of complaint against Brass Workers Union 127 and others, including appellants.

<p>Bill to Contest a 'Will.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in this court at the October term, 1902.</p>

<p>Bill for a Divorce.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in this court at the October term, 1902.</p> <p>This is a bill for divorce filed by appellée, charging appellant with adultery and extreme and repeated cruelty. It is also alleged that prior to 1890 she was the owner of a valuable business, the management of which she intrusted to appellant, from the profits of which the family was supported; that in 1890 he induced her to execute and deliver to him a power of attorney to manage and transact such business; and that thereafter he substituted his name in place of her name, and is now in full possession of said business and all its assets and is carrying on the same at Ho. 106 Clark street, Chicago; that said business, worth about $100,000, consists in loaning money upon pledges, in buying and selling jewelry and like goods, and in the purchase of city and county script; that he has expelled her from said business and threatens to sell the same and to depart the United States.</p> <p>Among other things, she prays for an injunction; that the court by its decree may settle and determine her property rights; that a receiver may be appointed to take possession of, manage and control said business and property during the pendency of the suit; the prayer for general relief is added. The co-respondent and the First National Bank of Chicago were also made defendants. An injunction was issued without notice and without bond.</p> <p>The answer filed denies the allegations of cruelty, and of adultery. It denies that appellee owned said business, as charged in the bill. It asserts that he is in full possession of the business and its assets, and is conducting the same in his own name as his own business, except so far as he is restrained by said injunction. It denies that said business is worth $100,000 or upward, or that he expelled appellee therefrom, or threatened to sell the same and to depart with the proceeds; and if denies that she was the owner of any business prior to 1890, or at any time since, or that she ever turned any business over to his management; and asserts that he is carrying on the same business he started in 1879. It alleges that when he married appellee she had no money or means, and never had any except as he provided for her; that in 1890 he became involved, and asked her to let the business be conducted in her name, which was done for about two months, when he resumed his own name, and is now conducting the business in his own name; that appellee never at any time had any interest in said money or business.</p> <p>Further allegations are made relating to the manner of conducting said business; and he sets iip his history from 1862 to the date of the filing of the answer; his treatment of his family and their conduct toward him; and says that the value of the jewelry now owned by him amounts to about $15,000.</p> <p>The answer of the bank shows a deposit of $9,963.36, and a special deposit of $20,000 in United States bonds.</p> <p>The answer of the co-respondent denies the allegations of misconduct, and sets up in detail the history of her acquaintance with appellant.</p> <p>The cause was heard in open court. July 16, 1902, the chancellor entered a decree herein finding (among other things) appellant guilty of the charge of adultery, dissolving the marriage bond, and giving the custody of the minor children to appellee. It also found that said business ivas “ a copartnership business and was carried on” by appellee and appellant “ as copartners, and owned by them jointly as equal copartners, and that the said copartnership business was dissolved by the filing ” of the bill herein. That appellee at the inception of such business put into it $600 in goods and $5,000 in cash, and is equitably entitled to have first repaid to her the said sum of $5,600, without interest, out of said partnership property, and then to have one-half of the remaining assets of said partnership as of the date of the filing of the bill.</p> <p>The' cause was referred to a master to take an account and a receiver was appointed of all such partnership property</p> <p>From this decree an appeal was perfected.</p>

<p>1. Interpleader— When a Bill of Interpleader Will IAe.—A bank held a fund arising from the business of an insurance company as conducted by its agents and in which the bank claimed no interest, but was a mere stockholder. Both the insurance company and the agents claimed to own the fund, the company demanding payment of the amount by the bank to it, and the agents threatening to hold the bank liable to them in case of such payment. Held, that the bank was entitled to maintain a bill of interpleader against the two parties, and it is not controlling that the claim of the agents was for damages for an alleged breach of contract.</p> <p>2. Contracts— Where a Contract in Writing Can Not Be Modified by Parol,—Where the parties have deliberately put their contract in writing, and the language is so plain that there is no room for construction, such contract can not be modified by parol evidence.</p>

Trespass outlie Case,for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the October term, 1903. Halsted street in the city of Chicago runs north and south. It is eighty feet wide. There are walks for foot passengers upon each side. It is carried over the south branch of the Chicago river by means of a bridge.

<p>Trover.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heard in this court at the October term, 1902.</p> <p>In March, 1898, appellee brought an action of trover against appellant and one McDonald. The declaration charged that in October, 1897, appellee was legally possessed of the goods in question, being of the value of $5,000, and on that day lost them, and they came into the possession of the defendants, who converted them to their own use.</p> <p>McDonald filed a plea of the general issue. Appellant filed a plea setting up the levy of a distress warrant upon and a sale of the goods under that writ. Upon trial the jury found appellant guilty and assessed appellee’s damages at $1,035. From the judgment entered upon that verdict this appeal was perfected.</p> <p>It is shown by the record that appellant owned the building known as Nos. 214-216 South Clinton street in the city of Chicago. In May, 1896, he rented a part- of his building, from June 15, 1896, to November 30, 1897, to one Louis Hammerslough, to be used in the manufacture of printer’s ink. Hammerslough, with, the consent of appellant, assigned the lease to the Midland Printing Ink Co., which thereafter occupied said premises and used the same, together with the goods in question-, in the manufacture of ink. December 21, 1896, the Midland Co. made and delivered a chattel mortgage of said goods to appellee to secure the payment of its note to his order for the sum of $2,000, dated June 10, 1896, and due three months after date! October, 1897, appellee gave Morris R. Rosenwald power of attorney to act for him in the premises. Under that authority, on the same day, Rosenwald took possession of the plant of the company under the power contained in the mortgage, for default in the payment of the money evidenced by said note, posted a notice of sale of said goods upon the door of the premises, and placed Hammerslough in possession, with instructions to carry on the business. On this date there was $200 due to appellant under said lease. October 11, 1897, appellant, by Gallup, “ who was business manager for Mr. Springer,” by letter, notified Rosenwald,11 attorney in fact for Samuel R. Lipsis,” that 111 will hold you responsible for the rent of the premises 214-216 S. Clinton street, under lease from me by the Midland Printing Ink Co., during the time you are in possession.”</p> <p>October 14, 1897, appellant placed the distress warrant in the hands of his agent. Under that writ the goods were distrained upon and afterward sold. When the agent came to seize the goods one Patrick J. Findlay, an employe of Hammerslough, was in possession of the premises. Appellant, through his agent, turned him out, took possession of the goods and premises, and locked the outside door. Appellee made immediate demand for the return of the goods, without avail.</p>

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

Bill for ail Accounting, and other relief. Appeal from the Superior Court of Cook County; the Hon. Alonzo K. Vickers, Judge presiding. Heard in this court at the October term, 1903.

<p>1. Special Assessments— County Court Has No Power to Order Sale of Property After Judgment of Confirmation Has Been Reversed. —The County Court has no power to order a sale of property for a failure to pay an installment of a special assessment, after the judgment of confirmation has been reversed. Such act is without the jurisdiction of the court.</p> <p>2. Ordinances—S'teps Taken Under an Invalid, Ordinance Are Void.—All steps taken under an invalid ordinance are void.</p> <p>3. Taxation—Judgment for Taxes Not Conclusive Evidence of Validity of Sale, When.—Where the County Court had no jurisdiction to order a sale of property for a failure to pay a special assessment, the property comes within the exception contained in Sec. 224, Chap. 120, R. S., that the real estate was not liable to the tax or assessment, and in such case the judgment for taxes is not conclusive evidence of the validity of the tax sale.</p> <p>4. Same—Purchaser at Tax Sale Takes Chance that the Owner is Not Delinquent.—A purchaser at a tax sale tajres the chance that the owner was not delinquent and that the property was not legally assessed.</p> <p>5. Same— Owner Need Not Repay Illegal Assessments in Order to Get Relief.—The owner of property sold at an invalid tax sale is under no obligation to repay the purchaser the amount of the assessments which he never owed and for which his property was never liable, before the court will grant him relief.</p> <p>6. Costs—When Decree for Costs Against One Holding a Tax Certificate or Deed Can Not be Entered.—A. decree for costs against one holding a tax certificate or a tax deed can not be entered until after he has been placed in the position of refusing to do equity.</p> <p>7. Judgments— Void Judgments May Be Attacked Collaterally.—A void judgment can be attacked collaterally.</p> <p>8. Same—Setting Aside Tax Sales—Claimant Must Pay All Subsequent Legal Taxes.— Where a purchaser of lots at an invalid tax sale afterward pays other and valid taxes on the property, the owner of the lots, before he can have the benefit of a judgment or decree setting aside the sale, must repay such legal taxes under Sec. 224, Ch. 120, R. S.</p>

Distress for Kent.—Three cases consolidated. Appeals from the Circuit Court of Cook County; the Hon. George W. Patton presiding in one case, and the Hon. Edward P. Vail in the other two. Heard in this court at the October term, 1902.

<p>1. Domestic Animals—Owner's Knowledge of Vicious Nature of Dog Gaitsing Injury Must be Shown in Order to Recover.—In an action for damages from an injury caused by the bite of a dog, the plaintiff, in order to recover, must prove that the owner of the dog had notice of its tendency to bite mankind.</p> <p>2. Same—No Recovery Where Injury is the Result of Wantonly Irritating a Dog.—Where a person, as_a_result of ^wantonly irritating and aggravating a dog while_Jt is eating, .is bitten by the dog in repelling the aggression, and not from a mischievous propensity, he can not recover.</p> <p>3. Practice—Insufficient Count to Sustain a Recovery for the Bite of a Dog.—There can be no recovery for injuries sustained from the bite of a dog upon a count alleging that the dog was accustomed to bite.</p> <p>4. Same— Where Not Error to Refuse to Exclude Faulty Counts.— Wheie there is one good count in a declaration, it is harmless error to refuse to exclude other counts from the jury.</p> <p>5. Same —What Faults in a Count Can he Reached hy an Instruction to Disregard it.—Only such faults in a count as would render it insufficient to support the judgment can be reached by instructions to disregard it; all others are waived by taking issue on it.</p>

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

<p>Assumpsit, on a benefit certificate of insurance. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge presiding. Heard in this courr at the October term, 1902.</p>

<p>Bill for a Receiver.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge presiding. Heard in this court at the March term, 1903.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the October term, 1903. This is an action on the case brought by appellee against appellant and the Chicago Terminal Transfer Railroad Company to recover damages for injuries received by her December 8,1899, at the intersection of the tracks of appellant and Thirty-fifth street in the city of Chicago.

<p>1. Instructions—Must be Considered Together and as One Charge.— The instructions must be considered together and as one charge. If the instructions taken as a whole present the law to the jury with substantial correctness, it is sufficient.</p> <p>2. Same—Party Can Not Complain of an Error Similar to One in His Own Instruction.—A party has no right to complain of an error in an instruction when a like error appears in another instruction given at his own request.</p> <p>3. Insurance—Meaning of Word “ Disease ” as Used in Application. —The word “ disease” as used in an application for life insurance, means more than a temporary disorder; it means serious illness which has impaired the constitution or has left behind it some organic or chronic effect,</p> <p>4. Appellate Court Practice—Errors Not Assigned Are Waived. —Errors assigned but not argued in this court will be considered as waived,</p> <p>5. Same—Where the Evidence is Conflicting.—Where the evidence is conflicting, the verdict will not be disturbed unless there is substantial error in the action of the trial court in the giving or in the refusing of instructions, or in the admitting or in the rejecting of evidence.</p>

<p>Bill for am Injunction.—Appeal from the Superior Court of Cook County: the Hon. Jesse Holdom, Judge presiding. Heard in this court at the October term, 1902.</p>

Trespass on the Case, for injuries to a horse. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding. Heard in this court at the October term, 1903.

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

<p>Petition to Foreclose a Mechanic’s Lien.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

Bill for am Injunction.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902. Appellee filed its bill of complaint and obtained an injunction restraining appellant and two of its employes from doing business as electricians, etc., under the name of the “ McFell Electric and Telephone Company,” or under any other name so similar as to be misleading to the public.

Bill for a Becelver.—Appeal from an interlocutory order of the Circuit Court of Cook County; the Hon. Elbridgb Haneoy, Judge presiding. Heard in the Branch Appellate Court at the October term, 1903. Appellee had a life estate in a certain building and lot of which her son Henry was the owner, subject to said life estate and to a mortgage for §5,500.

<p>Assumpsit, on a policy of fire insurance. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding. Heard in the Branch Appellate Court at the October term, 1903.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

Assumpsit.—For money paid to a building and loan association. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>1. Evidence—Proper Foundation to be Laid Before Memorandum May Be Used to Refresh Witness’ Memory.—Where a witness offers to read a report or memorandum and it does not appear that he could not or did not remember the facts except by referring to the notes, or that he had written the notes, or that the matters therein set forth were true, or that he had no recollection of them or what particular person had written them, or under what circumstances they had been written, except that the witness said “ they were taken at that time,” it is error to permit the witness to read such report.</p> <p>2. Chancery Practice—Not Proper to Take'Exceptions to Rulings of the Court.-—Chancery practice does not require that exceptions be taken to the rulings of the court.</p>

<p>1. Negligence—Of the Driver of a Wagon Not to be Attributed to a person piling With Sim.—The negligence of a driver of a wagon is not imputable to a person who is riding with him as his guest and has nothing to do with the driving.</p> <p>3. Same—When Court Can Declare Negligence as a Conclusion of Law.—It is only where reasonable men can not differ on the question as to whether an act constitutes negligence, that the court can declare negligence as a conclusion of law.</p> <p>3. Instructions—As to Measure of Damages in Personal Injury Oases.—In a personal injury case the jury were instructed as follows: “ The court instructs the jury that if you find for the plaintiff you will be required to determine the amount of his damage. In determining the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have a right to, and they should take into consideration all the facts and circumstances as proven by the evidence before them; the nature and extent of plaintiff’s physical injuries, if any, so far as the same are shown by the evidence to be the direct result of the injury; his suffering in mind and body, if any, resulting from such physical injuries, and such future suffering and loss of health, if any, as the jury may believe from the evidence before them in this case, he has sustained or will sustain by reason of such injuries; his loss of time and inability to work, if any, on account" of such injuries; and may find for him such sum as in the judgment of the jury, under the evidence and instructions of the court in this case, will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damage and injuries, if any, are claimed and alleged in the declaration and proven; and it is not necessary for any witness to express an opinion as to the amount of such damages.” It was objected to on the ground that the court, by telling the jury to “ consider all the facts and circumstances in proof,” directed them in assessing damages to wander at large through the entire proof instead of confining them to that part of it bearing upon the subject of damages, jHeld, that the instruction was proper.</p>

Assumpsit, on a building contract. Appeal from the Circuit Court of Cook County; the Hon. Charles G Neely Judge presiding. Hegrd in the Branch Appellate Court at the October term, 1902. This is an action to recover for damages for delay, damages to the work while in progress, and for extra work, upon the Manufactures and Liberal Arts Building, the Horticultural Building and the Transportation Building of the World’s Fair.

<p>1. Evidence—Error to Exclude Testimony of Witness as to Temperature,, Although Not Shown by a Thermometer.—It is error to exclude testimony of a witness that the temperature of a house was cold. The objection that the word “ cold ” is a relative term goes to the weight of the testimony and not to the competency of it.</p> <p>2. Appellate Court Practice— Where Court Refuses to Accept Instructions on the Ground that They Are Tendered Contrary to a Rule of Court.—Where the court refuses to take or accept instructions on the ground that a rule of the court provides that the instructions shall be handed to the court before any argument is commenced, and there is no such rule shown by the bill of exceptions or elsewhere in the record, this court can not regard the language of the court as a substitute therefor, and the refusal to take the instructions on such ground will be held improper.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at che October term, 1903. Appellee, by lease in writing, leased to Harry C. Mordue an apartment on the second floor of a building in Chicago to be occupied as a private dwelling.

<p>1. Mortgages—Criterion of Personal Liability for an Tncunibrance upon Property Purchased.—The criterion of personal liability for an incumbrance upon property purchased is to be found in contract or consent of the purchaser to become bound for the debt where it forms a part of the price he is to pay for the incumbered property. But where the property is cast upon a person by act of law, or by the agency of others, who are the beneficiaries, there is no reason for assuming that he intended to bind himself, and thereby add a new security for the payment.</p> <p>2. Same—What is Neeessary to Create a Personal Liability on Part of Purchaser of Mortgaged Property to Pay Mortgagee in Absence of Express Promise or Provision in Deed.—To create a personal liability on the part of the purchaser and grantee of mortgaged premises to pay the mortgage, in the absence of a provision in the deed assuming it or an express promise by the purchaser to pay the mortgage, it must be shown that the purchaser and seller agreed upon the purchase price of the premises, and that by agreement between them the amount of the mortgage was deducted from such agreed price.</p>

<p>1. Practice—No Necessity for a Formal Ruling upon an Objection. —There is no necessity for trial courts to formally rulé upon an objection. It is sufficient if they dispose of it in some way, whether formally or informally.</p> <p>2. Appellate Court Practice —Liberal Rules of Construction to be Applied in Ascertaining the Meaning of the Record in Matters of Court Rulings.—Courts of review should not apply narrow but liberal rules of construction in ascertaining the meaning of the record in regard to the rulings of the trial court.</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 the Branch Appellate Court at the October term, 1902. This is an action to recover for personal injuries. Appellee, a boy fourteen years of age, received the injuries complained of from contact with an electrified lead cable containing an insulating preparation covering a live copper wire.

<p>1. Conspiracy—Gist of the Crime.— The gist of the crime of a conspiracy to confederate or agree to accomplish an unlawful purpose is the agreement to do the illegal act. and not the means agreed to be used to carry out the unlawful agreement. The latter of itself is a separate and distinct offense from the former.</p> <p>2. Same—Indictable at Common Laic.—A conspiracy to do anything opposed to the principles of right and justice, or which has for its object the perversion or obstruction of public justice, is a criminal offense and indictable under the common law.</p> <p>3. Same—To Commit a Statutory Offense is Indictable.—A conspiracy to commit a statutory offense is indictable.</p> <p>4. Same—No Defense to Prosecution for Jury Bribing that the Court Had No Jurisdiction of the Case.—It is no defense to a prosecution for conspiracy to bribe a jury that the court hearing the case in which the jury attempted to be bribed were sitting, did not have jurisdiction of such case.</p> <p>5. Same—Offense Complete When the Corrupt Agreement is Made.— When the conspiracy charged is to commit an unlawful act, the offense is complete when the corrupt agreement is made, and in no way depends upon any overt act done or means used or agreed to be used to consummate the unlawful agreement.</p> <p>8. Same— Where a Neto Trial May be Granted to One Defendant and Judgment Affirmed as to Others.—Where in a conspiracy trial there is a separate verdict and judgment as to each of the defendants, there may be an affirmance or reversal as to one, or any number, or all.</p> <p>7. Trials—Expression of Opinion by the Cow#.—Remarks of the court amounting to an expression of opinion from which the jury might infer that the testimony of a witness is unworthy of credit, are improper.</p> <p>•8. Same—Improper Expression of Opinion by Counsel.— An expression by counsel that the state had more evidence of conspiracy and of bribery in the case at bar than had been produced in any other case of that character in his recollection and experience, that the evidence overwhelmed everything else in public knowledge and that he would modify what he had said by saying in the experience of mankind, is improper, as being the expression of his personal opinion as to the weight of the evidence in the case as compared with all other cases.</p> <p>9. Same—Improper Conduct of Counsel in Examining Witnesses. — It is improper for counsel, when merely surprised by the evidence of a witness, to remark that he is an unwilling witness, and follow up such remark by an examination calculated to impress the jury strongly that he is an unwilling witness, and to cause the jury to give undue weight to his evidence bearing upon the conspiracy charge.</p> <p>10. Same—'Improper Remarles of Counsel in Addressing the Jury.— Counsel in addressing the jury spoke of two defendants as the “ prime arch conspirators in this case,” of another as “the notorious ‘Bill’ Gallagher” as an “ infamous man, an ex-convict, who had worn the striped livery of the state,” and of another said, among other things, “You thought you might take the short cut to fame and success, and grasping on the ladder of fame the rotten rung of corruption, you have fallen to the ground in disgrace and dishonor. * * * Yen have been unfaithful to your mother. * * * You have been untrue to the religion that nurtured you to better ideas, and you have di.- - graced your profession and American citizenship,” etc. Held, improper as being in no sense argument, and only calculated to bias and prejudice the jury against the defendants.</p> <p>11. Same—Improper Course of Examination by Counsel.—It is improper for counsel in his examination of a witness to propound questions in regard to damaging facts in such a manner and with such persistency and show of proof, as to impress the jury that there must be something wrong even though the prisoner fully denies it, and there is no other evidence, and the witness is not refractory or unwilling.</p> <p>12. Same—Duty of State's Attorney in Conducting Prosecutions.— The position of the state’s attorney being semi-judicial, and it being his duty to be fair and just in his conduct of trials, both to the state and the accused, he has no right to bring before the jury, under the guise of argument, anything not shown by the evidence in the case, nor to indulge in personal abuse of a defendant or witness, nor to characterize him as a criminal, a perjurer or convict, though there may be basis for it in the evidence.</p> <p>13. Evidence—Of Conviction of a Felony as Affecting Credibility— Pardon Should Also be Shown.—The statute permits evidence of a conviction of a felony as bearing upon the credibility of a witness, but it is both material and important, when such fact has been shown, that the jury should also know, as affecting his credibility, that he has been pardoned, if such be a fact.</p> <p>14. Same—Admissible When Part of the Res Gestee.—Evidence of defendants in a prosecution for conspiracy to corrupt a jury is admissible when it tends to contradict the state’s case in connection with certain alleged acts done pursuant to the conspiracy and part of the rea gestee.</p> <p>15. Instructions—That the Evidence of a Conspiracy Will in General he Circumstantial, Erroneous.—An instruction stating that as matter of law, the evidence in proof of conspiracy will in general be circumstantial, is erroneous.</p> <p>16. Same—That Mere Knowledge of a Conspiracy, with Passivity, Will Convict of Conspiracy,'Erroneous.—An instruction in effect that a mere knowledge, with passivity on the part of the defendants, will be sufficient to convict them of conspiracy, is erroneous. The mere knowledge, acquiescence or approval of an act, without co-operation or agreement to co-operate, is not enough to constitute the crime of conspiracy. There must he something showing active participation of some kind by the parties charged.</p> <p>17. Same—Certain Conduct of Judge in Giving, Not Error.— While the court was reading the instructions to the jury a part of one sentence of an instruction having been read by the judge, he torp it from the other instructions, laid it aside, erased the word “ Given,” which had been written upon it. and marked it “ Refused,” and stated orally tithe jury, ‘‘that instruction should be out.” It is not urged that it was error to refuse the instruction, and the part of it which was read to the jury was not sufficient to convey to them any idea of the import of the instruction— was meaningless. Held, that the fact that the court stated orally to the jury that the “ instruction should be out,” was not an instruction to them upon the law, and was not error.</p> <p>18. Criminal Law—Test to Determine Whether an Offense is the Same Under Two Indictments—The. test to determine whether an offense is the same under two indictments is whether, if what is set out in the second indictment had been proved at the trial under the first, there could have legally been a conviction. When there could have been, the second may not be maintained; when there could not, it may be.</p> <p>19. Statutes—Sec. 408, Div. 11 of the Criminal Code, Construed.— Under Sec. 408, Div. 11 of the Criminal Code, which provides in effect that an indictment sjiall be sufficient which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury, it is not sufficient to follow the language of the statute creating an offense if its words do not describe the act or acts constituting such offense, but the indictment in such case must be sufficiently certain and particular in its allegations as to the act or acts with which the defendant is charged, that he may have reasonable notice thereby of the precise offense charged against him.</p> <p>20. Practice—Absence of Counsel from Court Must Be Made to Ajypcar by Bill of Exceptions to he Availed of—When it appears from the record that the defendants, as well in their own proper person as by their counsel, came into court on the day in question, and does not state that they were at any time absent therefrom, their presence in court can not be denied by affidavit, but can only be made to appear by a recital in the bill of exceptions.</p> <p>21. Appellate Court Practice—What is Necessary to Justify This Court in Reversing on the Ground that the Evidence is Insufficient.—To justify this court in reversing on the ground that the evidence is insufficient, it must appear that the finding of the jury is not sustained by the evidence or that it is palpably contrary to the decided weight of the evidence.</p> <p>22. Words and Phrases—“ Illegalas Used in the Statute, is Synonymous ivith “ Unlawful.”—The word “ illegal” as used in the statute is synonymous with “ unlawful,” and means contrary to any law, whether criminal or civil.</p>

Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Bichard W. Clifford, Judge presiding. Heard in this court at the October term, 1902. August 3, 1899, appellee brought an assumpsit against Augusta Lehmann, conservatrix of thé estate of Ernst J. Lehmann, distracted, and filed therein a declaration consisting of the common counts'only. To this declaration the defendant pleaded non-assumpsit.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the October term, 1902.

<p>1. Practice—Proper Basis of an Amendment 'of the Record Nune Pro Tune.-—An amendment of the record nunc pro tune must be based upon some official or quasi-official note or memorandum or memorial paper remaining in the files of the case or upon the records of the court, and a fact:proposed to be incorporated into a record to supply an omission can not rest in the recollection of the judge or other person, or be based upon esc parte affidavits or testimony after the event has transpired.</p> <p>2. Same—Stenographic Notes of Reporter Not Such a Note or Memorandum as the Law Contemplates.—The stenographic notes of a shorthand reporter are not such a memorial paper, note or memorandum as the law contemplates shall be used as a basis from which to make an order amending a record nunc pro t unc.</p> <p>8. Pleading—Allegations Not Traversed Are Admitted.—A party by not traversing an allegation in a pleading thereby admits it.</p> <p>4. Same—Dilatory Pleas Must be Urged at First Opportunity.— Pleas which are merely dilatory and do not go to the merits of the case must be urged at the first opportunity.</p> <p>5. Contract—Dismissal of a Suit is a Sufficient Consideration.— The dismissal of a suit is a sufficient consideration for a promise even where the result of the suit is doubtful.</p> <p>6. Attorney and Client—Power of Attorney in Management of Suit.—An attorney has power to promise an opposite party to pay her the amount of her claim in consideration of her dismissal of her suit and such promise is binding upon his client.</p> <p>7. Appellate Court Practice— Where -it Does Not Appear from the Bill of Excep>iions that it Contains All the Evidence.—Where it does not appear from the bill of exceptions that it contains all the evidence, the court will not consider the evidence for the purpose of determining whether it supports the verdict, but will presume that there was sufficient evidence to support it.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p> <p>Appellee, in the Superior Court, in an action on the case for personal injuries against appellant, had a verdict for $7,000. The trial court overruled a motion for a new trial and rendered judgment on the verdict, to reverse which this appeal is prosecuted.</p> <p>Appellant owns and operates a large packing house. Appellee was in its service as a sweeper and cleaner. In the proper discharge of her duty appellee went under a platform in the packing house to sweep, and while there it fell upon her and inflicted the injuries complained of.</p> <p>In appellant’s brief this platform is described as follows :</p> <p>“The loft consisted of a platform eight feet from the floor. It was about sixteen feet long and approximately sixteen feet wide. It was supported at the four corners and braced by supports coining down from the ceiling to the sides. The platform in its length ran north and south. Attached to the south supports and also to the north supports were planks running parallel with the floor and eight feet above the floor, which acted as joists at either end for the support of some 4x4 beams, which ran north and south and supported the weight of the material in the loft; some boards were scattered loosely on these 4 x 4’s, forming a sort of temporary flooring! There is some testimony indicating that there were also some little iron braces, consisting of rods attached to the wall and also to the side of the platform,' to prevent the vibration of the platform. The platform was not to exceed two years old at the time the accident happened, it having been built in 1899.”</p> <p>This description we adopt, but will call the perpendicular supports posts, the horizontal planks which were attached to the posts beams, and the 4x4 pieces of scantling which were "Laid upon the beams, joists. The joists were not let into or in any way fastened to the beams and vve may therefore consider the beams and posts as the frame of the platform.</p> <p>There is a conflict in the testimony as to the size of the beams and posts.</p> <p>The witnesses called by appellant testified that each beam consisted of two 2x6 Norway pine planks placed on edge one on top of the other; that the posts were Norway pine 8 x 10, extending to and supporting the roof, and were in place before the platform was built; that the beams at each end were spiked and securely fastened to a post. Four witnesses called by appellee testified that the posts were 2x4 and extended from the floor only to the platform, and some of them testified that the beams were 2x4.</p> <p>When the platform was built it ivas intended to support pieces of beef while drying, to make dried beef. There were about fourteen joists, and to them hooks were attached and to these hooks the pieces of beef were hung. The platform had for some time before the injury been used for the storage of articles used in making mincemeat. On the day of the injury and for two days before, four men had been engaged in taking from the platform articles stored thereon. On the platform at the time of the injury were packages of cartons, tables, presses, a water tank, half and quarter barrels. The weight of these articles, of the men on the platform and of the joists, was at least 4,000 pounds. The weight of the joists and the articles oh the platform before any were removed was 5,000 pounds or more. It does not clearly appear what part of the structure first broke or gave way. Two witnesses called by appellant, neither of.whom saw the platform fall, testified that they found that the beam on the north side of the platform broke about two and a half feet from the post at the northeast corner; that it was a clean diagonal break and that the timber at the place of fracture appeared sound. They do not testify that no other timbers w.ere broken and for aught that appears in their testimony the breaking of the beam may have been the result, not the cause, of the fall of the platform. For appellee a witness testified that he saw the platform fall; that the two posts on the north side of the platform 'broke at the same time, and the platform fell. Another ■witness testified that he saw in the wreck broken 2 x 4's.</p>

<p>1. Master and Servant—Servant Charged with Knowledge of Obvious Dangers.—Where the danger arising from coming into contact with a swiftly revolving fan is obvious to a person of ordinary intelligence, the law charges the servant with knowledge of such danger.</p>

<p>1. Pleading!—When Work under a Contract is Done and Payment Alone Remains to be Made, It May be Recovered on the Common Counts.—When the work contracted to be done under a contract is done and nothing remains except to pay for it, a recovery may be had on the common counts.</p> <p>2. Same—Performance of Work Contracted to be Done May be Proved under the Common Counts. —Performance of the work contracted to be done under a contract may be proved under the common counts.</p>

Trespass on the Case, for slander and malicious prosecution. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in this court at the October term, 1902.

<p>1. Practice—Question of Jurisdiction of the Subject-Matter of an Appeal May Be Brought to the Attention of the Court at Any Time.— A want of jurisdiction of the subject-matter of an appeal may be brought to the attention of the court at any time. The court may raise the question of its own motion.</p> <p>2. Freeholds— When Involved.—A. freehold is only involved when the result of the litigation must be that one party will gain and another lose a freehold estate, or where the title is so put in issue by the pleadings that a decision of the case necessarily involves a decision as to the! title.</p>

<p>1. Res Ad judicata—Where Courts of Law and Equity Have Concurrent Jurisdiction Over a Question,—Where courts of law and equity have concurrent jurisdiction over a question, and such question is decided at law, equity will not re-examine it.</p> <p>2. Same—How Far a Motion for a New Trial is Conclusive.—If a motion for a new trial has been made in and denied by a court of law, the judgment of that court denying the motion is conclusive, not only ’ as to all grounds presented in support of the motion, but as to all grounds which might have been presented in support of it: and a court of equity will not grant relief in such case on grounds available in the law court.</p> <p>3. Appellate Court Practice—-What is Necessary to Warrant Disturbing the Master's Report Confirmed by the Court.—In order to warrant a reviewing court in disturbing the finding of the master confirmed by the court, the weight of the evidence must be clearly against it.</p>

<p>Assumpsit.—Appeal from fche Circuit Court of Cook County; the Hon. Edmund W. Bubice, Judge presiding. Heard" in this court at the October term, 1903.</p>

<p>1. Appeals—Jm Forcible Entry and Detainer—Power of Court to Require a New Bond.—By virtue of chapter 57, section 19, the court in which an appeal in a forcible entry and detainer case is pending may require a new bond in a larger amount, if necessary, to secure the rights of the parties.</p> <p>2. Same—By Taking Appeal from Justice of the Peace to the Circuit Court, Appellant Gives Jurisdiction to the Court.—By taking an appeal from a justice of the peace to the Circuit Court the appellant gives such court jurisdiction of his person and the subject-matter of the suit.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the October term, 1902. Appellee brought suit against appellant to recover damages for injuries she sustained October 28,1900, from a fall caused by a defective sidewalk. Appellee, a married woman about forty-five years of age, passed along the sidewalk Sunday morning on her way to church.

Trespass on the Case.—Death from negligent act occurring on the high seas. Error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.

Bill to Set Aside the Probate of a Will.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. This was a bill- in equity by appellants against appellees to contest the validity and set aside the probate of the will, and a codicil thereto, of Cynthia J\£. Cameron, who was and until her death continued to be a resident of Warrensburg, Warren county, New York.

Bill to Set Aside a Deed, and other relief. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding. Heal'd in the Branch Appellate Court at the October- term, 1902.

Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlajn, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>. 1. Appeals—Not to be Dismissed for Insufficiency of Bond.—Where the recital of the judgment' in the appeal bond is not sufficiently full and precise, the remedy is to apply to this court for an order that appellant give a proper bond, and the appeal can only be dismissed when such an order has been made and is not complied with.</p> <p>’ 2. Judgments—Under a Joint Warrant of Attorney.—Under a joint warrant of attorney a judgment can only be confessed against all of the makers, and in case of the death of one of them no judgment can be confessed against the survivors.</p> <p>3. Same—During the Term a. Court of Law Has Full Control Over Its Record.—During the term a court of law has full control over its record and may for sufficient cause vacate any judgment entered at the term.</p> <p>4. Same—Courts Exercise Equitable Control Over Judgments by Confession After the Term.—Courts of law exercise, after the term, equitable control over judgments by confession.</p>

Bill for an Injunction.—Appeal from the Superior Court of Cook County; thé Hon. Jesse Holdom, Judge presiding. Heard in the Branch Appellate Court at the October term, 1903. This is an appeal from an assessment of damages upon the dissolution of an injunction.

Trespass on the Case, for personal injufies. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902. Appellee recovered judgment against appellant for injuries sustained by her while alighting from one of its cars on which she had been riding as a passenger.

<p>Assumpsit, upon a promissory note. 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, 1902.</p>

<p>1. Trespassers—Who Are Not—A person who enters the office of another for the purpose of lodging a complaint against one of its employes is not a trespasser, although he has inadvertently entered the wrong place.</p>

<p>Assumpsit, for professional services. Appeal from the Superior Court of Cook County; the Hon. Russell P. Goodwin, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

<p>Assumpsit, upon a benefit certificate. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

Assumpsit, for the price of a trade and good-will. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in the Branch Appellate Court at the March term, 1902. Appellee recovered judgment in the Superior Court for the purchase price of certain trade and good-will alleged to have been transferred by him to appellant, from which judgment this appeal is prosecuted.

<p>1. Municipal Corporations—When Notice of Defective Sidewalk Will Be Presumed,.—Where a hole in a sidewalk has been in existence or several months, the city will be presumed to have had notice of its existence.</p> <p>2. Damages—Instruction to Jury to Consider all the Facts and Circumstances Proved by the Evidence in Assessing, Proper.—An instruction to the jury to consider all the facts and circumstances proved by the evidence in determining the amount of damages, is proper.</p> <p>3. Same—Properly Allowed for Plaintiff’s Suffering in Mind and Body, and Future Suffering and Loss of Health.—Damages in a personal injury case for injuries resulting from a defective sidewalk may properly be assessed for plaintiff’s suffering in mind and body, if any, resulting from her physical injuries, and for future suffering and loss of health resulting from such injuries.</p>

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

<p>1. Fraud—Preponderance of Proof Sufficient to Establish.—A preponderance of the proof is all that is necessary to establish fraud.</p>

<p>1. Insurance—Transmission to Insured of Fact of Cancellation by Special Agent is Final.— The transmission to the insured of the fact of cancellation, by a special agent of the insurer who was authorized to cancel on notice, is final; and a subsequent arrangement between him and the insured to let the policy stand is immaterial, as it would be a new discretionary act beyond the power of a special agent.</p> <p>2. Same—Authority of Special Agent to Revive a Policy Canceled by the Company', Not to be Presumed.—Authority of a special agent to revive a canceled policy already rejected by the company can not be presumed.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902. Appellant, for three years before he received the injury for which this suit was brought, had operated for appellee a planer and joiner, and was paid therefor one dollar and sixty cents per day.

<p>1. Negligence—When Action of Teamster in Driving Across a Tracis in Front of a Street Car is.—The action of a teamster in driving slowly across a track in front of a rapidly approaching street car, relying for liis safety upon a supposition that the car will stop at the crossing before it reaches him, is contributory negligence.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in this court at the October term, 1902. This is an action on the case brought by appellee against appellant to recover damages for injuries received by her while in their employ. Appellants own and run a large retail dry goods store in the city of Chicago.

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

<p>Assumpsit, for professional services. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.</p>

Trespass oil the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge presiding. Heard in this court at the October term, 1902. November 16, 1900, appellee, a seller of sewing machines, was driving northwest along Lincoln avenue in the city of Chicago, seated in a one-horse buggy. The buggy top was up and a sewing machine was fastened in the rear of the buggy box. He sat in the driver’s place.

<p>1. Practice—When Refusal of Court to Instruct Jury to Disregard Certain Counts is Harmless Error.—If there be one good count to which the evidence is applicable, the error of the court, if any, in refusing to instruct the jury to disregard other counts, is harmless.</p> <p>2. Instructions— Whole Law in the Case Need Not he Stated in One Instruction.—It is never necessary to state the whole law of a case in one instruction. It is sufficient if the instructions taken as a whole present the law applicable to the facts in issue.</p> <p>3. Same—Not Error to Refuse Instructions When Same Principles Are Stated in Others.—It is not error to refuse an instruction when the same principles contained in it are embraced in others given.</p> <p>4. Appellate Court Practice— When Verdict Should Not be Disturbed.—An appellate court must give great weight to the finding of the jury, and must not disturb it unless it is not sustained by the evidence or unless it is clearly against the weight of the evidence.</p>

Assumpsit, on a contract for excavating a canal. Appeal from the Circuit Court of Cook County; the Hon. Elbridoe Hanecy, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.

<p>1. Equity— When Court Has Jurisdiction it May Decide all Issues and Grant Full Relief.—Whenever a court of equity has jurisdiction to grant the remedy of injunction for some special purpose, even though the injunction covers only a portion of the controversy, it may go on and decide all the issues and make a final decree granting full relief.</p> <p>2. Sales—Reasonable Restrictive Covenant in Contract of Sale.— A covenant by one who sells the good will of a business, not to engage in the same or a similar business in Chicago for .three years, is not unreasonable, and is therefore not void as against public policy, but is a reasonable and valid restriction.</p> <p>3. Damages— Compensation is Not Confined to Cases Capable of Accurate Estimate.—Compensation by way of damages is not confined to oases capable of accurate estimate. Courts and juries may act upon probable and inferential, as well as direct and positive proof.</p>

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

<p>1. Mortgages—When Abstract of Title is a Part of Security for Loan.—An abstract of title delivered by the owner of land to the mortgagee’s attorney, maybe regarded a? part of the security for the loan, and the mortgagor is not entitled to possession till the mortgage is paid.</p> <p>2. Replevin—V\hat Interest in Property is Necessary to Recover Against a Mere Wrongdoer.—Where the plaintiff is in the rightful possession of the property he is entitled to recover against a mere wrongdoer notwithstanding a plea of property in a third person.</p>

<p>1. Mortgages—Application of Rents of Mortgaged Property.— Where a mortgage has been foreclosed and a receiver appointed who collects accumulated rents paid for the use of the mortgaged premises, such rents constitute a part of the security, and should be applied toward paying off the secured debt.</p> <p>2. Same—Mode of Applying Fund in Absence of Agreement of Parties.—In the absence of an agreement between the parties the mode of applying the fund in foreclosure proceedings is determined by the rules of law and not by the wishes of either party.</p>

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

<p>1. Trials—Erroneous Remarks of the Court.—Twice during the trial the court stated to counsel for defendant, in the presence and hearing of the jury, that there was only one point in the case, namely, as to whether or not the foreman of the defendant ordered the plaintiff to go into a dangerous place. Held, reversible error.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chktlain, Judge presiding. Heard in this court at the October term, 1902.

<p>Appeal from Probate.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge presiding. Heard in the Branch Appellate Court at the October term, 1903.</p> <p>The Probate Court entered an order disallowing a claim against the estate of Christoph Yunk, deceased, from which an appeal was taken to the Circuit Court, where appellant’s claim was again disallowed, and from that order this appeal is prosecuted.</p> <p>The claim is based upon a forthcoming bond given by the deceased in connection with other parties. The bond was given to the sheriff to obtain the release of property seized under attachment. Five attachment suits had been commenced in the Circuit Court of Cook Count)', and two in the Superior Court. The property was held by the sheriff under attachment writs in said suits. The value of the property was placed at $10,000, and all the property 'seized under the different writs was released by the sheriff upon receiving the forthcoming bond upon which appellant bases the present claim.</p> <p>The bond runs to the sheriff, as provided by the statute, and its condition recites “that whereas, on June 7, 1893, a certain writ of attachment issued out of the Circuit Court of Cook County at the suit of Emil Gasch and Charles Deubler, doing business as Deubler & Gasch, plaintiffs, against the estate of C. L. Hiehoff and Company, defendant, directed to the sheriff of Cook county to execute, by virtue of which said writ the said sheriff, James H. Gilbert, has attached the following described property, to wit: (Here follows a list of the property attached, and it is then recited) “ that the value of the above described property does not exceed $40,000, and that the above property is subject to attachment writs Ho. * "x" 14,839 Superior Court, Stuckart v. Hiehoff ” (giving also the numbers and titles of the five cases in the Circuit Court and the other case in the Superior Court). The bond concludes:</p> <p>“How, if the said estate and property shall be forthcoming to answer the judgment of the court in said suit, then this obligation to be void,” etc.</p> <p>It is said that the two attachments issued out of the Superior Court were, upon the trial of the attachment issue, sustained; but in the Circuit Court cases the juries found that issue for the defendants, although the finding was in favor of the plaintiffs upon the assumpsit issues.</p> <p>The suit of Henry Stuckart et ah, claimants herein, was one of those prosecuted in the Superior Court in which the attachment was sustained, and it is sought in this proceeding to recover against the estate of the deceased, under said forthcoming bond, the amount of the claimant’s final judgment in the Superior Court.</p>

Assumpsit, upon a contract of indorsement upon a promissory note. Appeal from the Circuit Court of Lee County; the Hon. Bichard S. Earrand, Judge presiding. Heard in this court at the April term, 1903. Certificate of importance and appeal denied.

<p>1. Practice—A Defective Statement of a Cause of Action is Cured by Verdict.—Where there is any defect, imperfection or omission in any ¡heading, whether in substance or in form, which would have been a fatal objection upon demurrer, yet if the issue joined be. such as necessarily required, on the trial, proof of the facts so defectively stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or that the jury would have given their verdict, such defect, imperfection or omission is cured by verdict.</p> <p>2. Appellate Court Practice— Where the Evidence is Conflicting. —Where the evidence is conflicting, the Appellate Court will not disturb the verdict unless manifestly against the weight of the evidence.</p> <p>3. Same—Assignments of Error Not Argued Are Waived. — Assignments of error not argued in this court will be considered as waived.</p> <p>4. Same—Where Defendant in Error Can Not Raise Question Whether Case Should Have Been Tried upon a Different Theory.— Where the defendant in error has assigned no cross-errors, he can not raise the question whether the case should have been tried upon a theory different than the one upon which it was tried.</p>

<p>1. Verdicts— Upon Conflicting Evidence—When They Should Not be Disturbed.—Where the evidence is conflicting, unless the court can say the verdict is manifestly contrary to it, the verdict should not be disturbed.</p> <p>2. Appellate Court Practice—Questions Not Raised in the Trial Court Can Not be Urged in This Court.—Questions which have not been raised in the trial court can not be urged in the Appellate Court.</p> <p>3. Instructions— Where Imperfect Instruction Will Not be Ground for Reversal.—Instructions, though not perfectly accurate, and subject to criticism, will not be ground for reversal, if it appears on the whole that the jury was not misled by them.</p>

<p>Trespass on the Case, for assault and battery. Appeal from the Circuit Court of Knox County: the Hon. John Á. Gray, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>Trespass oil tlie Case, for damages to land by overflowing water. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge presiding. Heard in this court at the April term, 1903.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge presiding. Heard in this court at the April term, 1903.

<p>Transcript from Justice of the Peace.—Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge presiding. Heard in this court at the April term, 1908.</p>

<p>Appeal from Probate.—Appeal from the Circuit Court of Kankakee Comity; the Hon. John Small, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>Trespass.—Appeal from the County Court of Livingston County; the Hon. C. F. H. Carrithers, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>Bill to Rescind a Foreclosure Sale.—Error to the Circuit Court of ICane County; the Hon. Henry B. Willis, Judge presiding. Heard in this court at the April term, 1903.</p>

<p>1. Sales—Right of Vendor in a Conditional Sale to Repossess Himself of Property for Failure to Comply with Condition.—When property is sold upon condition, the title d'oes not pass until the condition is complied with, and the vendor has the right to repossess himself of the property, provided he does so before the rights of innocent third parties intervene.</p> <p>2. Same—Position of a Person W7io Has Purchased Property of One Who Has Only an Imperfect Title.—When a person, without notice of any imperfection of title, has purchased property of one who has only title to it by virtue of a conditional sale, and who has not complied with the condition, such purchaser, as long as the possession of the property remained with his vendor, is liable to have his title defeated by any third party who should purchase without notice, or any creditor who might obtain a lien and levy an execution or an attachment upon the property as the property of such vendor. In such case the vendor at the conditional sale, and the purchaser of the former’s vendee, each has a title as against the purchaser at the conditional sale, and each has the right to immediately reduce the property to his possession; this being true, the party who first reduces the property to his actual possession has the better right.</p> <p>3. Same—Vendor May Take Property Back After Notice of Its Sale to a Third Party. —A vendor at a conditional sale may repossess himself of the property upon condition broken after he has notice that such property has been sold to a third party, as his rights are not acquired after he received notice of the subsequent sale, but his right to take possession, as against his vendor, was reserved to himself by the terms of the conditional sale.</p> <p>4. Appellate Court Practice—Assignments of Error Not Argued Are Waived.—Assignments of error which are not argued in this court will be considered as waived.</p>

Trespass on the Case, for damages to land by flooding. Appeal from the Circuit Court of Marshall County; the Hon. Leslie D. Puteebaugh, Judge presiding. Heard in this court at the April term, 1903.

<p>1. Practice—Trial Judge Alone Can Certify What Took Place on Trial.— The trial judge alone can certify what proofs he heard, what rulings he made, and what exceptions, if any, were taken thereto.</p> <p>2. Same—No Error to Refuse Leave to File a Demurrable Plea.—It is not error to refuse leave to file a demurrable plea.</p> <p>3. Same—Defendant Can Not File Additional Pleas as a Matter of Right.—A defendant can not file additional pleas as a matter of right. An application to do so is addressed to the sound discretion of the court.</p> <p>4. Same—- Waiver of Error in Refusing to Direct Verdict for Defendant at Close of Plaintiff's Case by Offering Proofs. —Defendant waives the error of the court in refusing to direct a verdict for defendant, at close of plaintiff’s case in chief, by thereafter offering proofs.</p> <p>5. Appellate Court Practice— What Question is Raised When an Instruction is Requested to Find for Defendant at the Close of All the Proofs and Denied.—When, at the close of all the proofs, the defendant requests an instruction to find for the defendant, and such instruction is denied, the question is presented whether upon all the evidence the verdict for plaintiff is unwarranted.</p> <p>6. Same—Assignments of Error Not Argued Are Waived.—Assignments of error not argued in this court are waived.</p> <p>7. SUICIDE'—Presumption of Law is Against.—There is a presumption against death by suicide, where the circumstances are such that it might have resulted from negligence, accident or suicide.</p> <p>8. Evidence—Verdict of Coroner's Jury is Competent.—The verdict or inquisition of a coroner’s jury is competent evidence.</p> <p>9. Same—Depositions Taken at Coroner’s Inquest Not Competent Original Evidence.—Depositions taken at a coroner’s inquest are not competent original evidence.</p> <p>10. Same—Extent to Which Proofs of Death Are Competen t Evidence. —Proofs of death are competent evidence for plaintiff to show compliance with the requirement of proofs of death or for defendant to show that they were not such proofs of death as the policy required, but they are not competent for either party upon the question whether the cause of death was such as to charge defendants with liability or to relieve it therefrom.</p> <p>11. Same—As to Cause of Cun-shot Wound Resulting in Death.—A physician in testifying as to the cause of death of a person should confine himself to facts and not draw any conclusions or offer his opinions upon a matter not requiring medical skill or knowledge.</p> <p>12. Guardian and Ward—Guardian Can Not Bind Wards by Admissions Made by Her in Proof of Death—A guardian has no authority to make even qualified admissions against the interests of her wards in proofs of death and they are not bound by them when, after arriving at their majority, they seek to enforce the policy.</p> <p>13. Same—Guardian Can Not Release Demand Due Ward Without Authority of Court.—A guardian can not compound and release a demand due her wards without obtaining authority from the court which appointed her.</p> <p>14. Instructions—Properly Refused When Principles Are Embodied in Others Given. —Instructions are properly refused when the principles contained in them are embodied in others given.</p> <p>15. Insurance—Clause in Policy Construed.—The clause in a policy with reference to self-destruction, “ whether voluntary or involuntary, sane or insane,” has no application where the insured meets death through the accidental discharge of a gun while he is cleaning it, if he had no intention of discharging it or no intention of hitting himself.</p> <p>16. Interest—Allowable on Written Contract After Money is Due. —Interest is allowable on all moneys after they become due on any instrument in writing.</p> <p>17. Release—Payment of an Undisputed Debt Not a Consideration For.—The payment of an undisputed debt does not form a consideration for a release, and a release so obtained is void.</p>

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

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge presiding. Heard in this court at the April term, 1903.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Bureau County; the Hon. George W. Brown, Judge presiding. Heard in this court at the April term, 1903.