Volume 131 — Illinois Reports

Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Appeal—whether a freehold involved—bill for dower. A bill for dower in real estate involves a freehold. When the right of dower is admitted to all of certain lots except one, and as to that the widow’s right to the estate is put directly in issue, and when the trial court denies her right to dower in such lot, but gives her dower in the other lots, subject to the lien of a judgment, etc., an appeal from the decree by the widow involves a freehold, and lies directly to this and not to the Appellate Court.</p> <p>2. Deed op trust—to secure a cause of action■—construed—as to the extent of it. After the recovery of a judgment against certain parties, and pending an appeal to this court, A, one of the judgment debtors, together with his wife, for the purpose of releasing certain of his lands from the lien of the judgment, gave their deed of trust upon certain other lands to secure the payment of the judgment in case of its affirmance, or of any other judgment that might be rendered in such suit, or in any other suit brought upon the same cause of action. The judgment already obtained was reversed, and the suit was abandoned by a neglect to have the cause reinstated in the trial court in proper time, and A having died, a new suit was brought against his surviving part? ners, in which the plaintiffs recovered judgment: Held, that the deed of trust was intended to secure the payment of the cause of action in case of a judgment thereon, and that the lots embraced in the deed were liable for the payment of the latter judgment against A’s surviving partners.</p> <p>3. Parties—in suit upon the covenants in a lease, in case of the death of some of the parties. In an action upon the covenants in a lease, the covenantees are the proper plaintiffs and the covenantors the proper defendants; and in case of the death of some of the parties thereto, the action must be brought and judgment recovered by or against the survivors.</p> <p>4. Judgment on demurrer—whether conclusive of the facts. The trial court sustained a demurrer to certain pleas, and this court, on appeal, reversed the judgment of that court, holding that the pleas presented a valid defense : Held, that the judgment of this court was not that the facts stated in the pleas were true, and that it left the parties the right to contest the truth of the pleas.</p> <p>5. Dower—before assignment—character of the right—duty of purchaser. Until dower has been assigned, the dowress has no tenancy, but a mere right to have one-third" of the land assigned to her in severalty. Her rights have no analogy to those of a joint tenant, and the rules applicable to that relation do not apply to her and a purchaser of the land. Such purchaser owes no other duty to the dowress than that imposed by the common rules of honesty and fair dealing. He is not required to sacrifice his own legal or equitable rights to protect those of the widow-</p> <p>•6. Same—prior incumbrance—rights of widow, and of third persons. The owner of certain real property executed and acknowledged a deed of trust thereon. Subsequently, the grantor having in the meantime married, his wife signed the same, and it was re-acknowledged by them both: Held, that the delivery of the trust deed, in the absence of other proof, would be presumed to have been on the day of its date, and therefore that the wife had no dower in the premises as against the parties secured by the trust deed.</p> <p>7. A, before his marriage, gave a mortgage on certain real estate to secure the payment of a judgment against him and his four partners, in case of its affirmance, and in case of a reversal, to secure whatever other judgment might be recovered on the same causo of action. He and two of the partners bought the interest of the other two, and gave them a bond of indemnity against liability. The judgment was reversed, and after the death of A another judgment was recovered on the same cause of action against the surviving members of the firm, and the widow of A claimed that such last named judgment should not be enforced against her dower rights, because it was entered by consent, and was obtained by fraud and collusion: Held, that unless the judgment was shown to be inequitable, the fact of its entry by consent was not material.</p> <p>8. In such case, the fact that the parties to the suit before judgment agreed that no execution should be levied on the individual property of the mortgagor, and the plaintiff should look to the mortgaged premises, and other provisions made by A in his lifetime, for satisfaction, is not evidence that the judgment was entered by consent and collusion or fraud.</p> <p>9. Where suit is brought against the surviving partners of a firm to establish a cause of action secured by the mortgage of a deceased partner, before his marriage, and thus render his widow’s right of dower subject to the judgment, the widow will have the right to intervene in the suit at law for the purpose of having a proper defense interposed, and if she fails to do so it is doubtful whether she can afterward allege the invalidity of the judgment on the ground of negligent or even intentional omission on the part of the surviving partners sued.</p> <p>10. Where a trust fund of a firm is set apart and deposited with a "third person, to be used for the specific purpose of discharging a debt of the firm, the widow of a member of the firm will have no equitable right to have such fund appropriated for her use in relieving her dower ■of a mortgage given by her husband, before marriage, for the same ■debt, any further than in so far as it reduces the incumbrance. The ■other partners of the firm will have the right to have the fund applied as originally intended, in exoneration of their liability.</p> <p>11. A purchaser of land at administrator’s sale, and from the heirs of the intestate, subject to the widow’s dower, by contract with a prior incumbrancer obtained a reduction of the amount of the lien : He Id, that such purchaser could not charge the widow’s dower with the full amount ■of such incumbrance, but only the amount paid by him.</p>

<p>1. Pebjuby—materiality. In replevin for a lot of books, the plaintiff read in evidence a bill of sale from the defendant to him of the books, after which the defendant proved by a witness that the signature to the-bill of sale was not in the handwriting of the defendant, and thereupon the plaintiff had the defendant sworn, and called him as a witness, and asked him whether the signature to the bill of sale was his, and he-answered, “No:” Held, that the defendant was liable to an indictmehtfor perjury if his testimony was false, it being material in the case.</p> <p>2. Same—upon what issues the false testimony may be given. A party-may waive any pleading upon which he might insist as a condition precedent to the introduction of evidence by the other party; and when the other party shall give such evidence of a fact not made an issue by the pleadings, the former can not afterward deny its materiality.</p> <p>3. Pleading and evidence—non est factum in replevin. Where the-plaintiff in an action of replevin introduces in evidence a bill of sale purporting to be made to him by the defendant, an affidavit denying its execution is not required before the defendant may introduce evidence that he did not execute the same. The plea of non est factum is-unknown in replevin.</p> <p>4. New tbial—verdict against the evidence—in criminal cases. As-the jury in a criminal casé are regarded by the law as peculiarly qualified to pass upon the question of guilt or innocence, it is violative of both the letter and the spirit of the Criminal Code to set aside a verdict finding the defendant guilty merely because this court may, on the written evidence in the record, entertain doubts of the correctness, of the finding. Unless the court is clearly satisfied that the verdict,, under the evidence, was wrong, it must stand.</p>

<p>Appeal from the Appellate Court for the First District;—¡ heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

Egbert Jamieson, Judge, presiding. This was a bill in chancery, by appellee, against appellant, to set aside a tax sale. The appellant answered, putting in issue the material allegations of the bill.

<p>1. Lien—created by contract—after-acquired property—a lease construed, etc. Where a landlord seeks to establish a lien on the goods and chattels of his deceased tenant for rent, under a provision in the lease not sufficient to give such lien on after-acquired property, the burden of proving the facts necessary to establish the lien will be upon ¿tie landlord, and in the absence of proof that the tenant was the owner of the property claimed to be affected” by the lien, at the time he accepted the lease, it will be assumed, as against the landlord, that the goods left by the tenant at his death were all after-acquired property, and not subject to the lien given.</p> <p>2. A clause in a lease of a store building, that the lessor shall have a right of distress, “and also a valid and first lien for said rent accruing or to accrue, upon the property of the person or persons liable therefor,” is void for uncertainty as to the property intended to be incumbered, even as to the property owned by the tenant at the date of the lease, and, a fortiori, void, as applied to after-acquired property. Under such lease no lien can be enforced as against after-acquired property of the tenant.</p> <p>3. The language of the clause given had no application to after-acquired property of the lessee, and it is to be considered that he, speaking, at the date of the lease, of his “property,” referred to the property he then had, and nothing more.</p> <p>4. In giving a lien upon property to secure the payment of money, if the parties intend that the security shall extend to subsequently acquired property, that intention should be clearly expressed.</p> <p>5. A contract for the sale or mortgaging of subsequently-acquired chattels will not be enforced, in equity, where no chattels are specifically described, as, where the only description is that contained in the general -word “property.” The equitable title to goods, as well as to land, is confined to specific property, and does not extend to goods which are undetermined.</p> <p>6. Chattel mortgage—after-acquired property—the rule at law, and in equity. At the common law, a mortgage can operate only on property actually in existence at the time of giving the same, and then actually belonging to the mortgagor, or potentially belonging to him as an incident of other property then in existence and belonging to him.</p> <p>7. A different rule prevails in equity. There, while the mortgage itself does not pass the title to such property, it creates in the mortgagee an equitable interest in it, which will prevail even against judgment creditors and others, although the mortgagee has not taken possession of the property, and the mortagor has done no new act to confirm the mortgage. The ground of this doctrine is, that the mortgage, though inoperative as a conveyance, is operative as an executory agreement, which attaches to the property when acquired, and in equity transfers the beneficial interest to the mortgagee, the mortgagor being regarded as a trustee for him, in accordance with the maxim that equity considers that as done which ought to be done.</p>

Lorin C. Collins, Judge, presiding. On the 20th day of June, 1864, Edward Mott Robinson, of New York, and Robert W. Hyman, entered into the following agreement: “Whereas, Robert W. Hyman has purchased the undivided half of section twenty-one (21), township thirty-nine (T. 39) north, range thirteen (13), east of the third principal meridian, in Cook county, Illinois, for the joint account of himself and Edward Mott Bobinson, of the city of New York, for the sum of fifteen…

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.</p>

, Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p>

John C. Bagby, Judge, presiding. This was a bill in equity, in the circuit court of Cook county, seeking construction of the last will and testament of Francis C. Sherman, deceased. Held: as aforesaid, by said Francis T. Sherman, and that as such she is now entitled to have and receive from the trustee, under the will of said Francis 0.

<p>Writ of Error to the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.</p>

John P. Altgeld, Judge, presiding. This was an action of assumpsit, in the Superior Court of Cook county, by Edgar M. Snow and Theodore G-. Dickinson, partners, against Stephen Monroe, to recover commissions on the sale of certain real estate.

<p>Appeal from the Circuit Court of Livingston county; the Hon. Nathaniel J. Pillsbury, Judge, presiding.</p>

Writ of Error to the Circuit Court of Peoria county; the Hon. T. M. Shaw, Judge, presiding. This was a bill brought by Margaret C. Dickison, against Samuel Gordon, for the assignment of dower in the south-west quarter of section 21, town 10 north, range 7 east, in Peoria county.

<p>Appeal from the Circuit Court of Cook county; the Hon. Bichard S. Tuthill, Judge, presiding.</p>

<p>1. Judicial sale—reversal of judgment or decree — effect upon the rights of the purchaser. Where a stranger to the record becomes the purchaser of land at a foreclosure sale, or under a judgment or decree, and has no notice of any error in the proceedings, the subsequent reversal of the judgment or decree will not affect such purchaser’s title or rights, provided the court had jurisdiction to render the decree or judgment.</p> <p>2. A decree for the foreclosure of a deed of trust recited that the trustee was dead, and that the person named in the trust deed as his successor in trust was a party, and served. After sale under this decree to a stranger to the record, the decree was reversed, on the ground no service appeared on the original trustee, and the bill and proofs failed to show the death of such trustee. The final decree showed that the recital in the first decree was true: Held, that there was no such want of jurisdiction over the subject matter or the parties as that the reversal of the decree should operate to destroy the rights of a bona fide purchaser, not a party to the proceeding.</p> <p>3. Same—notice to purchaser—lis pendens. By applying to the court in which the cause is pending on error, for the modification of an order for a supersedeas, so that it may not interfere with the service of a writ of possession, the purchaser, if not a party to the record, and having no actual notice of errors in the proceeding, does not make himself such a party to a writ of error to reverse the decree under which he claims, as to thereby affect him with notice of error in the decree.</p> <p>4. The rights of a purchaser at a master’s sale, when he is no party to the record, become fixed upon payment of the price and the confirmation of the sale; and notice of error, to affect him or his assignee, must have been brought home to him before they became interested in the property.</p> <p>5. Same—confirmation of sale—what to be so considered. On the filing of a report of sale in a suit to foreclose, the court ordered that the report stand confirmed, unless objections thereto were filed in three days. Within that time exceptions were filed seeking only to reach a surplus in the hands of the officer, and they were decided by the court: Held, that the order overruling the objections and exceptions amounted substantially to a confirmation of the sale.</p> <p>6. Same—validity of sale—waiver of objections. Where a party to a bill to foreclose a deed of trust sets up a claim to a surplus left after satisfying the complainant’s demand, he will thereby impliedly waive any objection he may have to the sale, and be estopped from afterward averring there was no valid sale.</p> <p>7. Same—writ of assistance—right of purchaser. Where a stranger to the record, without notice of any errors or irregularities in the proceedings, becomes the purchaser of land at a foreclosure sale, the pendency of a writ of error to reverse the decree of sale, or even a reversal thereof, will not prevent the purchaser from suing out a writ of possession. He is not bound to await the final decision on error.</p>

T. M. Shaw, Judge, presiding. This was a bill brought by Matthew Kingman to foreclose two mortgages executed by Patrick Harmon, as guardian of William and o Mary Boylan, under two orders or decrees of the county court of Peoria county. The first mortgage was executed February 26, 1880, given to secure $2000, payable in three years, with eight per cent interest, payable annually.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.</p>

<p>1. Guardian and ward—protecting the ward’s estate—paying debts— incurring costs and expenses, etc.—reimbursing the guardian. If a guardian promises, on a sufficient consideration, to pay a debt of Ms ward, he will become personally liable on his promise, though made expressly as guardian, and it is a sufficient consideration if such promise discharge the debt of the ward; and a guardian who thus discharges the debt of his ward may lawfully indemnify himself out of the ward’s estate, or, if he be discharged from his guardianship, he may have an action against the ward for money paid to his use.</p> <p>2. A guardian, under authority from the county court to contract for the building of business houses on his ward’s ground, made a contract with one for the furnishing of cut stone, to the amount of $19,504. Before the completion of the buildings the guardian resigned, and the ward’s mother was appointed as his successor, who refused to pay a balance of nearly $6000 claimed by the contractor for the stone and some extra work, on the ground of damages caused by delay in completing the contract. The latter sued the prior guardian on his contract, and the second guardian employed attorneys to defend the suit, which was finally compromised for $4000. Before such compromise the second guardian resigned, and her successor paid the judgment of $4000 against the first guardian: Held, that as the suit was defended in good faith and resulted in benefit to the ward’s estate, the guardian last appointed was, in the settlement of his account, entitled to a credit for the amount of the judgment and costs paid by him, including reasonable attorney’s fees.</p> <p>3. A guardian may not willfully or recklessly incur costs and expenses in litigation, where he knows, or where by the exercise of ordinary prudence and caution he might have known, there was no necessity for litigation. But if he has reason to believe, and does believe, that a claim made against the estate is unjust and illegal, or for too large an amount, it is his duty to refuse its payment, and resist litigation brought to coerce payment, unless it shall appear that he knew, or by the exercise of ordinary prudence and caution could have known, the expense of resistance would greatly exceed any probable benefits resulting therefrom.</p> <p>4. A guardian, under a special agreement, paid a party $56 for procuring a rebate of $560 on a special assessment of the ward’s property for paving a street, collected many years before his appointment. It appeared that two prior guardians had failed to discover the right to such rebate, and that there was nothing to give him notice of such claim before the attorney proposed to investigate the matter: Held, that the guardian was entitled to be credited on his account for the sum so paid for obtaining the rebate.</p> <p>5. Same—costs—in litigation between guardian and ward. On appeal by both parties from the order of the probate court settling the final account of a guardian, involving over $184,000 of credits and several thousand items, most of which were contested by the ward, the balance found to be due from the ward to the guardian was increased: Held, that a judgment, against the ward for all the costs and expenses, including reasonable attorney’s fees incurred by the guardian on the appeal, was proper.</p> <p>6. The general rule is, that a cestui que trust has a right to demand a full investigation and explanation of the accounts, but the trustee is entitled to be reimbursed for all his costs and expenses in accounting, when it appears he has acted honestly. If both parties are materially in fault, the expenses should be borne equally.</p> <p>7. Where the trustee has acted in good faith, and his accounts are contested, and it becomes necessary that he should have the assistance of legal counsel, and when the various steps in the litigation over his accounts result in successive diminutions of the balance against him, he will be entitled to his costs and expenses, even though some items of his account are not allowed.</p> <p>8. Same—approval of guardian’s account—how far conclusive. A guardian, in an account which he filed in the probate court on making a partial settlement, was allowed credit for a payment made to a party on a claim, and such account was approved, and no appeal was taken from the order of approval, but an appeal was taken by the ward from a consolidated account filed, which included the item mentioned: Held, that the propriety of the credit thus allowed was not open to review, and that the order allowing the same was conclusive on the ward’s estate.</p> <p>9. Same—presentation and allowance of claims against the ward. There being no statute for the presentation and allowance of claims against the estate of a ward, an order of the county court allowing such a claim, and directing the guardian to pay the same, will not have the force and effect of a judgment establishing the validity of such claim. Such allowance is a nullity.</p> <p>10. Same—borrowing money—and mortgaging the ward's lands. Under certain circumstances the county or probate court, exercising a chancery power in that respect, is empowered to authorize a guardian to borrow money for the prevention of irreparable injury to the estate, and in such case the statute authorizes the court to empower the guardian to mortgage the real estate of the ward.</p> <p>11. Where the statutory steps are taken by a guardian to procure the decree for leave to mortgage the real estate of his ward, so as to confer jurisdiction on that court, such decree, however erroneous, is not void. Until it is reversed on appeal, or otherwise set aside, a mortgage given thereunder will be binding, and the duty will rest upon the guardian to pay the interest accruing upon the mortgage indebtedness.</p> <p>12. Same—application of the fund—how far restricted. When a guardian is authorized to borrow money upon mortgage of his ward’s land, for the purpose of paying certain claims held by others against the ward’s estate, the guardian may properly pay such claims, and he may charge such payment to the ward’s estate in his settlement of his accounts. Money thus borrowed, however, can not be lawfully applied by the guardian to any other purpose than that for which the loan was authorized to be made.</p> <p>13. Same—questioning the transaction—of the loan and mortgage—at what time. • On bill to foreclose a mortgage given by a guardian on his ward’s'real estate, the ward may have the entire proceedings reviewed, and may interpose every objection that may be found thereto. If improper items are included in the amount, they may be deducted from the mortgage debt.</p> <p>14. Landlord and tenant—water rents—liability of the tenant^-a lease construed. A clause in a lease that the tenant shall pay all water rents taxed, levied or charged on the demised premises during the term, and save such premises and the landlord harmless therefrom, which also provides that the landlord shall pay for any water rent, or for repairs of hydrants, supply or waste pipes or sewers on the premises, which may be ordered by the board of public works, contemplates a rate levied against the leased property as a public charge, such as is contemplated by section 171 of chapter 24 of the Revised Statutes of 1874, and which would be a lien upon the particular property leased. It does not apply to one of several tenants of a building or block where the water tax assessment is in bulk against the entire block.</p> <p>15. Cross eeboes—what matters to he considered. Where the ward alone appeals from certain items of account allowed as credits in favor of his guardian, and cross-errors are assigned, both in the Appellate Court and in this court, only such cross-errors will be considered as may relate to that portion of the record brought up by the ward’s appeal.</p> <p>• 16. Appeal—from order approving guardian’s accounts—lohat matters involved. There is no distinction between appeals from' orders of the county court approving the accounts of administrators, and appeals from orders approving accounts of guardians. Each item in such an account rendered, depends upon its own merits, having no connection with the other items. Therefore, an appeal by an administrator or guardian from an order rejecting one or more of his claims against the estate, only brings up for review the propriety of the ruling in respect of rejected claims. The same rule applies in case of an appeal by the heir or ward.</p>

<p>1. Right of trial by juey—taking depositions—refusal to obey subpoena— amendatory act of 1879—constitutionality. So much of the act of May, 1879, amending section 36, of chapter 51, of the Revised Statutes, entitled “Evidence,” as authorizes the circuit court, or circuit judge, in vacation, to punish in a summary manner, by fine and imprisonment, or fine or imprisonment, a person who shall refuse to obey a subpoena of a notary public to appear and have his deposition taken, or to subscribe his name to his deposition, is unconstitutional and void, as depriving the party of-a right to a trial by jury.</p> <p>2. Same—exceptions to constitutional right. It is conceded, however, that the enforcement of the authority of the court during the progress of a trial, for the speedy, orderly and impartial administration of justice between litigants, and the enforcement of final judgments and orders after trial, according to the principles and precedents of the common law, are not within the contemplation of section 9, article 2, of the constitution, guaranteeing a trial by jury.</p>

<p>1. Witness ■—competency — a party — as to transaction with agent of adverse party—the agent having died. A party seeking .to recover on a contract made by him.' with an agent of the adverse party, after the death of such agent, is not a competent witness to prove such contract, or the conversation or transaction between himself and the agent, even though the adverse party may have it in his power to read a deposition of the agent in evidence, but does not do so.</p> <p>2. In an action on a contract for the purchase and sale of coal, one of the plaintiffs, claiming to have contracted with the defendant’s agent, testified as to the terms of the contract, and so did such agent. After the trial, it was stipulated that on any subsequent trial the testimony of the agent, as taken down by a stenographer, might be read, the same as a deposition. There was a second trial, the agent having in the meantime died. The court refused to allow the plaintiff to testify as-to the alleged contract, or to read his former testimony in evidence: Held, no error in the ruling.</p> <p>3. SaIiE—price—to he implied. The rule that in a contract of bargain and sale of personal property, if nothing is said by the parties as to the-price, the law will imply an understanding that it is to be paid for at-what it is reasonably worth, can not be applied in an action by the purchaser for damages for a failure to deliver, for the reason there can be no damages. Such rule may be applied in a case where the vendor-sues the vendee for refusing to take and pay for the goods.</p> <p>4. Same—vendee refusing to perform—remedy of seller. If the vendeeof goods refuses to take and pay for the same, the vendor may store them for the vendee, giving notice of that fact, and then recover the full contract price; or he may keep the goods, and recover the excess of the contract price above the market price; or he may give notice to the vendee, sell the goods, and recover the loss, if they fail to bring the amount of the contract price.</p> <p>5. Measure oe damages—in suit hy vendee for a refusal to deliver goods. In an action by the purchaser of personal property, against the vendor, for a refusal to deliver, the measure of damages is the difference between the contract price and the market value of the property at the time and place where it should have been delivered.</p> <p>6. Pleading and evidence—recovery upon cause of action as alleged. A plaintiff can not allege one cause of action and recover on proof of another. So where the plaintiff, in an action lor a breach of a contract for the sale and delivery of coal, alleges in his declaration, an agreement as to the price of the coal, either of a definite sum, reasonable price, or the market price, proof of a sale without any mention as to price will not authorize a recovery.</p>

Writ of Error to the Superior Court of Cook county; the Hon. Egbert Jamieson, Judge, presiding. This was a bill for partition, filed by Maria Stunz, in the Superior Court of Cook county, against Catharine, Louisa and Mina Stunz, September 23, 1887.

<p>Writ of Error to the Circuit Court of G-allatin county; the Hon. Chauncey S. Conger, Judge, presiding.</p>

<p>Appeal from the County Court of Macon county; the Hon. William E. Nelson, Judge, presiding.</p>

Writ of Error to the Appellate Court- for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.

E. W. Clifford, Judge, presiding. This was an action of debt, in the circuit court of Cook county. The declaration, omitting the caption, is as follows: “Canute E. Matson, plaintiff in this suit, who sues for the use of John Carlson, by Allan C. Story, his attorney, complains of Henry Bodelsen, John L. Swanson and Charles A. Florence, summoned, etc., of a plea of debt.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.</p>

Egbebt Jamieson,Judge, presiding. This was a -bill in equity, brought by Alexander J. McDonald ' and the Circulating Boiler Company, to set aside certain confessions of judgment entered in favor of Samuel S. Chisholm, and to enjoin the sale of certain letters patent which McDonaid possessed, relating to an improvement in sectional steam, boilers.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Grundy county; the Hon. Charles Blanchard, Judge, presiding.

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Grundy county; the Hon. Charles Blanchard, Judge, presiding.</p>

Gwynn Garnett, Judge, presiding. This was a bill brought in the name of appellants, Catharine, Louisa and Mina Stunz, by their next friend, against appellees, to set aside, for fraud, a decree obtained by appellees in a certain partition proceeding. The facts in respect of that decree thus sought to be impeached and set aside are stated in Stunz et al. v. Stunz, ante, p. 210.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

heard in that court on appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding. Prior to October 18,1887, Allen & Co. had borrowed various sums of money of appellant, giving as security their judgment notes, the last one of which fell due on that day. When these notes were given, Allen & Co. had no thought of making an assignment. On October 19 the cashier wrote to the firm, notifying them that their notes were due, and asking payment.

M.'F. Tuley, Judge, presiding. Phebe L. Smith died December 24,1885. She left surviving as her only heirs, James Ogden, an uncle on her mother’s side, and Benjamin Franklin Smith, an uncle on her father’s side. Subsequently James Ogden died, leaving a will, by which George 0. Mead was made executor and sole residuary legatee. At the time of filing the bill in this cause, George 0.

<p>Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p> <p>Maria L. Taylor was the owner in fee of lot 4, in block 16, in Burrell’s addition to Chicago, and on the 13th of June, 1871, she and her husband, Frank C. Taylor, -conveyed it, in trust, to Ira Scott, trustee, and to his successors in trust, and the deed was duly recorded a day or so afterwards. Frank C. Taylor, husband of Maria L., made contracts for improving the property, and borrowed money therefor of the Franklin Savings Bank, and secured the same by mortgage, executed by himself and wife, upon this lot, but that mortgage was subsequently released. On the 13th of January, 1873, Maria Xi. Taylor, and Frank C. Taylor, her husband, filed their petition in the Superior Court of Cook county, under the statute popularly known as the “Burnt Records act, ” alleging the destruction of the original trust deed, and the record of it, by fire, and praying that it be restored. The children of the petitioners, the Franklin Savings Bank, Ira Scott, and Francis B. Peabody, who had been appointed successor in trust to Scott, were made defendants. Decree was rendered, restoring the -trust dee°d, as prayed, on the 19th of March following.</p> <p>On the 11th of April, 1873, Julia S. Taylor, wife of George 'Taylor, took possession of that part of lot 4 which, upon a ■subdivision subsequently made, became sub-lot 3, and she and her husband and children thereafter resided upon it as their homestead. Maria L. Taylor and Frank C. Taylor made a subdivision of lot 4, and divided it into sub-lots, numbered 1, 2, 3,4 and 5, and filed a plat thereof in the proper office, on the 13th of June, 1873. Thereafter, both Scott, and Peabody, his ■successor in trust, having-refused to act as trustees, a decree ■of the Superior Court was obtained on the 19th of August, 1873, appointing Mulliken as successor in trust, under the Taylor deed, and on the 23d of August, 1873, Maria L. Taylor, Frank C. Taylor, and Mulliken, as trustee, executed four mortgages, one on each of the sub-lots 1, 2, 4 and 5, to secure a promissory note of $9000, with interest, to the Franklin Savings Bank, and these mortgages were duly recorded two days after the date of then: execution.</p> <p>On the 13th of September, 1873, Henry Gilsdorff filed, in the circuit court of Cook county, his petition for a mechanic’s lien against lot 4, taking no notice of the subdivision, for ■amount due for carpenter work in erecting five buildings on that lot. Subsequently, F. and E. Bauman filed intervening qietitions for mechanic’s liens against the same property, for amount due for services as" architects and superintendents in ■constructing these buildings. Frank C. and Maria L. Taylor, and their children, and also the trustee, Mulliken, the Franklin Savings Bank, and Howe, trustee in the mortgages to that bank, and George Taylor, were made defendants. Julia S. Taylor was not made a defendant. No summons was ever served upon either of the defendants. On the 10th of November, 1873, Maria L. Taylor and Frank C. Taylor, and Mulliken, as trustee, made deeds of sub-lot 3 of lot 4 to Julia S. Taylor, and they were duly recorded on the 15th of that month.</p> <p>Answers were filed to the petitions for mechanic’s liens, by Maria L. Taylor and Frank C. Taylor, and the guardian ad litem for their children, on the 21st of February, 1874; but there is nothing in the record to show j urisdietion in the case over their persons, before that time. On the 13th of July, 1874, the other defendants in the case filed a joint and several answer. Decree was rendered in the cause, establishing the liens as prayed, on the 20th of July, 1874, and that decree was subsequently affirmed by this court. (Taylor et al. v. Gilsdorff et al. 74 Ill. 354.) After this, on the 19th of March, 1875, the Franklin Savings Bank paid the amount due upon the decree in that case, and took an assignment of the decree to-itself.</p> <p>On the 26th of June, 1876, the Franklin Savings Bank filed its bill, in the Circuit Court of the United States for the Northern District of Illinois, to foreclose the mortgages executed to-it by the Taylors, and Mulliken, trustee. Before any decree of foreclosure was entered in that case, and' on the 26th of April, 1878, a bill for review of the decree restoring the trust deed was filed in the Superior Court of Cook county, alleging, that the original trust deed had been found, and that it was. materially different from the deed as restored. All persons-who were parties to the bill restoring the trust deed were made parties to that bill, and it was thereupon decreed that the decree restoring the trust deed be reviewed, reversed and set-aside, and the.bill therefor dismissed, but it was provided that nothing therein should deprive the Franklin Savings Bank, or the trustee acting under the restored deed, of any rights they might have in the property conveyed in trust, their rights therein not having been adjudicated in that proceeding. Subsequently, a decree of foreclosure was entered by the Circuit Court of the United States, foreclosing the mortgages of the Franklin Savings Bank. The property mortgaged was bought by Thomas, president of the bank, for the bank, and certificates of purchase were issued to him. Before any deeds were executed, on the 20th of July, 1880, the certificate of purchase for sub-lot 2 was assigned to the children of Maria L. and Frank C. Taylor, and the bank then also released to them -all claim under the mechanic’s lien decree, against that lot. Afterwards the bank obtained deeds for sub-lots 1, 4 and 5, and on the 21st of June, 1881, it caused sales to be made under the mechanic’s lien decree, at which it was the only bidder. It caused the lots to be offered in the following order: First, sub-lot 5, for which it bid $150; second, sub-lot 4, for which it bid $150; third, sub-lot 1, for which it bid $150; fourth, sub-lot 3, for which it bid the balance due on the decree— $12,537.92. The lots were struck off to the bank on these bids, and deeds were made to it in accordance therewith.</p> <p>George Taylor died on the 18th of August, 1881, and the present bill was filed to set aside the sale of sub-lot 3, and the deed pursuant thereto, as a cloud upon complainant’s title, ■on the 18th "of February, 1884. The circuit court decreed that the sale, and deed pursuant thereto, were void and of no effect •as against the title of the complainant, and that they be set aside. The case comes here by the appeal of the Franklin Savings Bank, and errors are assigned which bring in review 4he correctness of the decree.</p>

<p>Appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

John J. Glenn, Judge, presiding. E. F. Thomas, of Galesburg, Illinois, died in 1872, and the appellant, John B. Colton, became the executor of his estate. The.indebtedness of the estate was over $50,000, and its assets consisted almost entirely of a stock of goods, the fair cash value of which, as the evidence tends to show, would not have paid in excess of twenty-five cents on the dollar of such indebtedness.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. This was a suit brought by appellee, in the Superior Court of Cook county, to recover from appellants the contract price of certain refrigerating machines and attachments, furnished and set up in appellant’s packing house under the following contract: “This agreement, made and entered into at Chicago this 8th day of February, 1886, by and between Fred.

<p>Wbit of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, pre- - siding.</p> <p>This was an action brought in the circuit court of St. Clair county, in the name of the city of East St. Louis, for the use of William D. Griswold, on the official bond of Alexander Flanigen, as treasurer of said city, against him and his sureties, for failure to pay five certain warrants issued by said city for street lighting, to said Griswold, against its tax levy for the year 1886. The annual appropriation and the tax levy were made by the city in the month of September, 1886. One of the warrants was issued for street lighting done by Griswold in July, 1886; another for street lighting done in August, 1886; another for street lighting done in’ September, 1886; another for street lighting done in October, 1886; another for street lighting done in November, 1886. There were five breaches assigned in the declaration, one on account of each of the warrants. A general demurrer was interposed by the defendants to the declaration. The court sustained the demurrer. The plaintiff elected to stand by the declaration, and final judgment was given against it and in favor of the defendants. The case was taken by writ of error to the Appellate Court for the Fourth District, and there the judgment of the circuit court was reversed, and the cause remanded.</p>

<p>1. Drainage daw—necessity of proposed drainage■—may be questioned-On the hearing of a petition for the formation of a drainage district under the Levee act of 1879, as amended by the act of May 19,1881, all parties through or upon whose lands any of the proposed work is to be constructed, or whose lands may be damaged or benefited thereby, are-permitted to appear and contest the necessity or utility of the proposed, work, or any part thereof.</p> <p>2. Same—assessments—limited to property benefited. Under section 31, article 4, of the constitution, assessments by drainage districts are-limited to the property benefited thereby.</p> <p>3. Same—what lands will be benefited■—who to determine—and herein,, of the province of the jury. The statute commits to the judgment and determination of the drainage commissioners, subject to review and. correction by the county court, the question as to what lands in a drainage district will in fact be benefited by the proposed drains and ditches. When that is once settled by the confirmation of the commissioners’ report, the decision, until reversed or set aside, is final and conclusive.</p> <p>4. The jury appointed to assess damages and benefits have nothing-to do with the question whether particular tracts of land included in the district will or will not be benefited by the proposed drainage system. They have no authority of law to find that only a part of a tract-in the district is benefited.</p> <p>5. A jury appointed to assess the damages and benefits to lands iru a drainage- district, reported the balance of the benefits against a tract of 160 acres, at a given sum, and stated in their report that the number of acres benefited was 118|: Held, that the attempt to determine that-only a portion of the tract was in fact benefited was extra-judicial and nugatory, and that the assessment was to be taken as having been made-on the entire tract.</p> <p>6. Same—■what lands to be benefited—subject to contest—when and' where. Every person interested in lands in a proposed drainage district ■ has the right to appear in the county court and contest the application to confirm the report of the commissioners, and show that his land included in the district, or any part thereof, will not be benefited, and on such a showing it is the duty of the court to so amend the boundary of the district as to exclude such lands.</p> <p>7. Same—change of boundaries of district—so as to include only lands to be benefited or damaged. If the commissioners appointed to lay out the work find that, the proposed district does not embrace all the lands to be benefited, or includes lands that will not be benefited, they may change such boundary so as to include the one and exclude the other, and the court may, at any time before declaring the district established, on the application of the commissioners or of any person interested, alter the same in such manner as may seem just.</p> <p>8. Same—two systems—the “Levee act,” and the “Farm Drainage act.” The legislature has enacted two entirely separate and independent codes of law applicable to the subject of drainage, and the organization and government of drainage districts. The one is known as the “Levee act,” and the other as the “Farm Drainage act.” A district organized under the one is subject only to the provisions of that act, and those of the other act have no application to such district.</p> <p>9. Same—collecting assessments—of the right of foreclosure in chancery. A drainage district organized under the Levee act can not foreclose its lien for delinquent assessments under section 72 of the “Act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named,” approved June 27, 1885.</p> <p>10. A drainage district formed under the Levee act, may, in the name of the People, foreclose its lien on lands for delinquent special assessments, under section 253 of the Revenue act.</p> <p>11. Sections 26 and 27 of the Levee act, as amended in 1881, and the same provisions carried into the revision of 1885, and section 253 of the Revenue law, are in pari materia, in such sense as to entitle the two acts to be construed together, so far as the collection of the revenue and assessments is concerned. The word “taxes,” in section 253 of the Revenue act, by a proper construction, includes special assessments, so far as to authorize a foreclosure in equity of the lien given by law for such assessments.</p> <p>12. Fobeclosube for taxes and assessments—in chancery—generally. In this State, in the absence of a statute expressly conferring it, a court of chancery has no jurisdiction to entertain a bill for the foreclosure of the lien upon real estate, given by the statute, for taxes and assessments levied thereon.</p> <p>13. Construction OF statutes—when in pari materia. Ordinarily, acts passed by the General Assembly at the same session and relating' to the same subject will be construed together, as forming one body of law. But this is so only by virtue of a rule of construction, which must-give way to the legislative will when properly expressed.</p>

<p>Writ of Error to the Circuit Court of LaSalle county; the Hon. George W. Stipp, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.</p>

<p>1. Evidence—denying execution of promissory note—evidence under that issue—generally, as to the circumstances surrounding the parties, and the dealings between them. On an issue as to the execution of a promissory n'ote, when the proof as to the genuineness of the signature is so equally balanced as to render it difficult to determine on which side the preponderance of the evidence is, evidence tending to show a reason for the execution of the note, and a reasonable probability or improbability that the defendant made and delivered the same, is not only competent, but highly important for the consideration of the jury.</p> <p>2. And the defendant will have the right to make proof of such facts and circumstances as may tend to show the note is not his, and render it improbable that he executed the same. To do this, the various transactions between the parties at or about the date of the note, and before, out of which a liability could have arisen, what was done and said by them at the time the parties were together seeking to- settle their old transactions, and the fact, if true, that there was nothing between them out of which the note could have grown, become material.</p> <p>3. Same—time and place of execution of note—as bearing on the issue. The validity of a note actually made and delivered does not depend upon the correctness of its date, or that it was executed at the time and place therein named. It may be good without any date, taking effect from its delivery. But the time of its execution and delivery may become a material and important question, and evidence relating thereto be competent, as, when the execution of the note is put in issue, and the testimony as to the genuineness of the signature is conflicting.</p> <p>4. Same—the affidavit of the party denying the execution—whether admissible. On such issue, the affidavit of the defendant denying the execution of the note sued on, is not admissible, and can not be considered in determining whether he executed and delivered the note.</p> <p>5. Same—of an instruction—as limiting the scope of the evidence. Upon the same issue, the court instructed the jury, on behalf of the plaintiff, that it was not material w-hether the note was executed at the time and place it bore date or at another time and place, if they believed, from the evidence, that it was in fact signed by the defendant: Held, that while the instruction contained a correct proposition of law in the abstract, it was calculated to mislead the jury, and give them to understand that the only material evidence was the testimony as to the signature of the note, alone,</p> <p>6. Promissory note—whether delivered—presumption. "Where the signature to a promissory note is shown tobe in the handwriting of the alleged maker, the possession of the payee will raise a presumption of its delivery. But if the note is a forgery, no such presumption will arise.</p>

T. M. Shaw, Judge, presiding. On the 16th of May, 1855, the Illinois Central Bailroad Company caused to be laid out the town of Wenona, on land of which it was then owner, in Marshall county, and, at the same time, it also caused a plat of the town to be made, and to be recorded in the proper office, but the only acknowledgment of the plat was before a notary public.

Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

<p>Appeal from the Circuit Court of Cook county; the Hon. A. N. Waterman, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court .on appeal from the Circuit Court of Saline county; the Hon. Robert W. McCartney, Judge, presiding.</p>

<p>1. Special assessment—abandonment of a part of the proposed improvement—new assessment as to the residue. In a proceeding by special assessment to make compensation for land taken for a street, after the roll had been filed showing the compensation to be made for opening the street as proposed, the village authorities repealed the ordinance upon which the proceeding was based, except as to the land embraced in a certain part of the street as originally contemplated, and abandoned the improvement as to the residue. On proof that the village had possession of that portion of the street which had not been abandoned, the court dismissed the case as to the other part, and ordered a new assessment accordingly: Held, that the court properly set aside the original assessment and directed a new one, and that there was no necessity for the passage of a new ordinance limited to the part of the street not abandoned.</p> <p>2. Same—new assessment—on failure to collect a former one. Section 48, of article 9, of the act relating to cities and villages, which provides that the board of trustees, on failure to collect a special assessment, may direct a new one to be made “within five years after the confirmation of the original assessment,” has no application when such original assessment has never been confirmed.</p> <p>3. Limitation—collection of special assessment. Where a petition for an order directing a special assessment to be made to pay the compensation for land condemned for a street, is dismissed only as to a part of the proceeding, and is still pending as to the part not abandoned when a new assessment is ordered, the Statute of Limitations will not run against the part so continued.</p> <p>4. Tax deed—judgment and precept. A tax deed, to be admitted in evidence as title, must be accompanied by proof of a judgment, and a precept, as a foundation for the tax sale.</p> <p>5. Same—against whom the deed is prima facie evidence. A tax deed is only prima facie evidence, under section 224 of the Revenue act, of the facts therein mentioned, when the controversy or suit in which it is introduced has relation to the right of the purchaser, his heirs or assigns, to the real estate conveyed by the deed.</p>

Elliott Anthony, Judge, presiding. Appellee having condemned the right of way to extend one of its streets, filed a supplemental petition, under section 53, article 9, chapter 24, of the Revised Statutes, to raise, by special assessment, the amount of money necessary to pay the compensation and damages awarded property owners for land condemned.

<p>Appeal from-the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the County Court of Effingham county; the Hon. S. F. Gilman, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p>

<p>"Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Rollin 8. Williamson, Judge, presiding.</p>

county; the Hon. Frank Baker, Judge, presiding. This is an action on the ease, begun in the circuit court of Cook county on the 7th day of October, 1887, by appellees, against appellant.

<p>1. Chattel mortgage—stock of goods—mortgagor retaining possession and making sales in usual way. Where, by an -understanding be-, tween the parties at the time of the execution and ddlivery of a chattel mortgage on a stock of merchandise, the goods are left in the hands of the mortgagor, to be sold by him in the usual course of his business as a retail merchant, the mortgage will be fraudulent and void as to creditors of the mortgagor. If any arrangement is made, express or implied, by which the mortgagor is allowed to continue the sale of the goods for his benefit, the mortgage will be invalid as against an attachment or execution creditor.</p> <p>2. Sale oe personal property—delivery of possession—whether essential. In case of an unconditional sale of specific chattels, delivery is not essential to complete the sale and pass the title, as between the-parties, where, by the agreement, nothing remains to be done but for the purchaser to take possession. But as to creditors and bona fide purchasers the rule is different, as a delivery is indispensable to complete the sale, so as to render it valid as against them.</p> <p>3. Practice—directing what the verdict shall be. Where the plaintiff' fails to introduce any evidence to prove a fact essential to his recovery, it is proper to instruct the jury to find for the defendant.</p>

<p>1. Criminal law—felonies—misdemeanors—distinguished. Offenses-made punishable, under our statute, by imprisonment in the penitentiary, or fine, or both, are misdemeanors only, and not felonies.</p> <p>2. The offenses made punishable by section 46 of the Criminal Code, as amended by the act of 1887, are misdemeanors, while the offenses embraced in section 1 of the Criminal Code, and section 2 of “An act to prevent the prostitution of females,” approved June 17, 1887, are felonies.</p> <p>3. Same—conviction for a lesser offense. Where a defendant is put upon his trial for a crime which includes an offense of an inferior degree, he may be acquitted of the higher offense and convicted of the lesser.</p> <p>4. Same—joinder of counts—for felonies and misdemeanors. In this State counts for felonies and counts for misdemeanors may be joined in the same indictment, as, where all the counts relate to the same transaction. If the counts cover the same transaction, though involving offenses of a different grade, the court has the power to preserve-all rights of the defense intact.</p> <p>5. Same-—election by prosecution—as to several offenses charged. If two or more offenses charged form parts of one transaction, and are of such a nature that a defendant may be guilty of both or all, the prosecution will not, as a general rule, be put to an election. The right of demanding an election, and the limitation of the prosecution to one offense, is confined to charges which are actually distinct from each other, and do not form parts of one and the same transaction.</p> <p>6. Same—general verdict—some of the counts abandoned—presumption. On the trial of parties under an indictment of ten counts, a nolleproseguí was entered as to four of the counts. The jury returned a verdict finding the defendants “guilty in manner and form as charged in the indictment.” No instructions were preserved in the record; Held, that it must be presumed that the court instructed the jury to disregard the abandoned counts, and that the finding was upon the-remaining six counts.</p> <p>7. Same—evidence in support of verdict—presumption—in absence of bill of exceptions. Where parties are tried under several counts of an indictment which are not inconsistent with each other, and it is possible that the evidence may have been such as to establish guilt under' each and all the counts, and the evidence is not preserved in the record, it will be presumed that the conviction was upon all the counts-</p>

<p>1. ElioibiiiIty to office—jurisdiction of the county court to determine. The county courts have no authority, under the statute, to hear and determine the question of the eligibility of a person to any particular office.</p> <p>2. The statute provides that the county courts may hear and determine contests of election of certain specified officers,—that is, to ascertain and declare which of the contestants has been duly elected. But the question whether or not a person already elected possesses the necessary legal qualifications for the office, must be determined in another way and by a different proceeding,—as, by information in the nature of a quo warranto in the name of the People.</p> <p>3. Service of process—in ca'se of contested election—of the mode. Summons must be served on the defendant in a proceeding to contest his election, in the same manner as in chancery cases. A return showing service by reading, only, fails to give the court jurisdiction of the person.</p> <p>i. The statutory requirements for service of process must be strictly complied with, and the return of the officer should show such compliance, otherwise the court will not obtain jurisdiction.</p>

<p>1. Trusts—lien upon trust estate—for expenses of administration. As a general rule, the expenses of administering a trust are a lien, in favor of the trustee, on the estate in his hands, and he will not be compelled to part with his control of such estate until such expenses are paid. But this, unless it may be in exceptional cases, does not extend to persons employed by the trustee.</p> <p>2. So a person employed by a trustee to render services useful to the trust estate, without the order of the court, when the trustee does not profess or undertake to create any lien on the estate, and he is not insolvent, and does not stipulate against his personal liability, can not proceed against the trust estate in equity, to recover compensation for his services. In such case, he must look to the trustee, or to his estate in case of his death, and not to the successor of the trustee employing him, or to the trust estate.</p>

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

<p>Writ of Error to the Appellate Court for the Eirst District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook, county; the Hon. John P. Altgeld, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of DuPage county; the Hon. C. W. Upton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Coot. county; the Hon. John P. Altgeld, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon.. S. S. Page, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. This was an action on. the case, to recover damages for injuries growing out of alleged negligence. On the trial the defendant asked this, among other instructions: “9.