Volume 135 — Illinois Appellate Court Reports

<p>1. Plea—effect of reply to, in chancery. By taking issue upon a pure plea in chancery to the entire bill, the complainant admits the sufficiency of the plea, and if the plea is proved the bill must be dismissed.</p> <p>2. Replication—what, in chancery, puts in issue. A replication to a plea in chancery puts in issue the facts alleged in the plea, but not the mere legal conclusions therein stated.</p> <p>3. Créditos’s bill—sufficiency of defense of illegal foundation for basic judgment. The only question presented for review in this case is: did the chancellor err in finding that the pleas were proved? Held, that on the evidence the finding was correct and the bill was therefore properly dismissed.</p>

Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Theodobe Beentano, Judge, presiding. Statement toy the Court.

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge; presiding^</p> <p>Statement by the Court. This is an action upon a policy of insurance. Appellee issued to appellant a policy in the sum of $3,000 for one year, containing the following condition:</p> <p>“In consideration of the stipulation herein named and of $75 premium, does insure Joseph Jacobson for the term of one year from the 3d day of August, 1903, at noon, to the 3d day of August, 1904, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding $3,000, to the following described property, while located and contained as described herein and not elsewhere, to wit:</p> <p>Drummer Floater.</p> <p>$3,000 on merchandise, and the trunks or packages containing the same, in the custody of Joseph Jacobson, while traveling in any part of the United States.”</p> <p>Appellant was a commercial traveler, residing at Chicago. He purchased his goods in the main at Chicago and sold them at various places between Chicago and Portland, Oregon. From time to time he returned to Chicago to replenish his stock of goods, remaining here from three days to a week, and while in Chicago he stored his goods at his residence, 502 South Marsh-field avenue.</p> <p>While in Chicago for that purpose, on November 25, 1903, a fire occurred at his residence which destroyed totally his stock of goods there stored. Proofs of loss were duly submitted, but appellee refused to pay the insurance, upon the ground that the loss did not occur while appellant was traveling.</p> <p>The cause was submitted to the court for trial without a jury, and the court found the issues for the defendant, and entered judgment upon the finding.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Statement ky the Court. Appellants prosecute this .appeal from a judgment against them entered in the Circuit Court in favor of appellee for personal injuries. The injuries for which the action was brought were received May 24, 1902.

<p>Bill for injunction, etc. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.</p> <p>Statement by the Court. This is an appeal from a decree of the Superior Court dismissing the bill of appellant for want of equity.</p> <p>The bill of complaint as amended sets forth that in 1903 the Union Metal Manufacturing Company was engaged in the business of casting metal (hard and soft); that it was financially embarrassed; that John West was its president and Edwin McNeal its secretary; that these two officers, by themselves, and one William A. Winterburn—their agent and promoter employed for the purpose—by means of false and fraudulent representations, induced John H. Winterburn and Nicholas E. Murray to enter with them upon the organization of the complainant company for the easting of hard metal and to invest $4,000 in the stock of said complainant. That John H. Winterburn is a brother of William A. Winterburn—the promoter—and the father-in-law of Nicholas E. Murray, and that West and Murray were warm friends and members of the same social circle.</p> <p>That it was the avowed purpose of the defendants to organize the complainant company and to sell to it certain patents for the casting of metal, theretofore invented by said West; and the false representations consisted in the statement made by them that the Union Metal Manufacturing Company was then the owner of the patents, whereas neither it nor West had any ownership or interest in said patents, and neither the patents nor any rights tlmrein were, in fact, ever conveyed to complainant.</p> <p>That the said Murray and John H. Winterburn agreed, on behalf of the prospective company—the complainant—to pay for said patents $60,000 in stock of complainant.</p> <p>That thereafter said Murray and John H. Winter-burn made another contract in behalf of the new company, by which they agreed to pay $2,000 in cash for the other property, good will, etc., etc., of the Union Metal Mfg. Co.</p> <p>That complainant corporation was then organized, the money on the second contract—reduced by agreement from $2,500 to $2,000—was paid, and the $60,000 in stock was duly transferred to the defendants, including the principal persons already named as defendants, their wives, mothers, mothers-in-law and other nominees of the defendant company.</p> <p>That some time after the making of the two agreements above described, the defendants caused one of West’s alleged confederates, an attorney at law named G-. G-. Barry, to draw up a written contract. This is the contract of May 7, 1903, complainants ’ exhibit B.</p> <p>The contract as drawn by Barry sets forth that the first party has sold to second party all the machinery, furnaces, etc., etc., office furniture, books, etc., and “the exclusive right to all of the letters patent, inventions, formulas, recipes, good will, brands, trade rights and manufacturing processes owned or in any way controlled by the first party and used in the hard white metal business, ’ ’ first party reserves the right to use the patents, etc., in soft metal business.</p> <p>“The second party hereby accepts the property and rights by the first party sold * * * and in consideration thereof hereby agrees to pay to the first party Twenty-five hundred dollars in cash and further to issue to it ‘or its nominees’ certificates of stock of the second party to the aggregate amount of six hundred shares.”</p> <p>That said contract does not correctly represent the agreement of the parties, in that it fails to treat the two agreements as separate and distinct transactions, made at different times, and attempts to combine the two as one entire contract. That Murray raised the question when the contract was read, but was reassured by the statement of the lawyer, Barry, that that was in accordance with the usual form.</p> <p>That thereafter the board of directors of complainant passed the following resolution:</p> <p>Resolved, that this company accept the offer of the Union Metal Manufacturing Company to sell to this company the property described in the resolution of the stockholders passed May 7, 1903, authorizing the purchase thereof; and the board of directors do hereby adjudge and declare that said property is of the fair value of $60,000 and that the same is necessary for the business of this company; and it is further resolved, that the proposed agreement for the sale of said property presented at this meeting be and the same is hereby approved as to form and the president and secretary of the company are authorized and directed to execute said agreement in the name and on behalf of this company and to affix the corporate-seal. Further resolved, that the president and treasurer be and they are hereby authorized and directed to issue the full paid capital stock of the company to the aggregate amount of $60,000, as provided in said agreement.</p> <p>That said resolution was passed by three of its five directors, and one of these three was West himself, who was at that time the president and a director of the defendant company, and that the resolution was, therefore, ultra vires and void.</p> <p>That some time after the organization of complainant, and the transfer of the 600 shares, to wit, in the summer of 1904, the complainant, by its officers, Murray and J. H. Winterburn,- discovered that neither West nor the Union Metal Mfg. Co. at the time said representation or said contract was made had any right in or title to said patents, and that these had been sold years before to Barnhart Bros. & Spindler for a consideration of $600.</p> <p>That the complainant never, in fact, received a cent of consideration in money or in any form for its 600 shares of stock. That the defendants are financially irresponsible and a judgment would be of no value or avail. That the complainant, J. H. Winterburn and Murray, relied upon said false representations in making the agreement, and that in making it they had in view the acquisition of the patents which were represented by the defendants and believed by Murray and J. H. Winterburn to be of very great value.</p> <p>The bill prays for a cancellation of the agreement relating to the 600 shares of stock, and for a cancellation of said stock unless the holders are willing to pay for it, and for an injunction against its further sale or transfer, and for general relief.</p> <p>The answers of the defendants deny in the main the allegations of the bill, say that the representation was that the Union Metal Mfg. Co. controlled the patents, in so far as they applied to its business, but the right of making type by means of said patents had been sold; that the property and rights turned over were well worth the sum of $62,500, and that large profits have been made with said processes; that the contract of May 7 was read at the meeting of the stockholders and directors of complainant company, paragraph by paragraph, and sentence by sentence, and correctly represented the agreement of the parties thereto; that the property other than the patents transferred by the defendant company to complainant was of great value; that no one ever questioned the right of the complainant to use said patents and that complainant did make use of them for a time.</p> <p>That one Frederick DeCardy, while in the employ of the defendant company, perfected an invention which was highly useful and beneficial in the casting of metal, and that some time thereafter he secured or caused to be secured a patent on this invention in the name of the White Brass Castings Company.</p> <p>That, by means of the use of the West patents and property transferred by the defendant company and the DeCardy invention and the efforts of the defendants, the complainant had been enabled to make great profits, about $17,000. That all their representations were true.</p> <p>The master to whom the cause was referred found the issues of fact in favor of the defendants and found against the charges of fraud and conspiracy.</p> <p>On the argument of the exceptions to the master’s report, the Superior Court rejected the findings of fact by the master, found the charges of the bill as to fraud and conspiracy to be clearly established by the evidence, but held that the contract of May 7 was one entire contract and could not be legally separated, and upon this ground entered a decree for the defendants.</p> <p>The contract, a portion of which the bill seeks to set aside and rescind, is as follows:</p> <p>“This Agreement, made at Chicago, Illinois, this 7th day of May, 1903, by and between the Union Metal Manufacturing Company, first party, and the White Brass Castings Company, the second party hereto, (both of said parties being corporations organized under the laws of the State of Illinois).</p> <p>Whereas, the first party is the owner of the business, , good will, patents, inventions, secret processes, property and rights hereinafter described; and</p> <p>Whereas, the second party desires by a cash payment and the issue of its capital stock, as hereinafter provided, to purchase and acquire said business, good will, patents, inventions, secret processes, property and rights; and</p> <p>Whereas, the Board of Directors of the second party have ascertained, adjudged and declared that the said business, good will, inventions, processes, property and rights are of the full fair value of Sixty-two thousand Five Hundred dollars, and that the acquisition of same is necessary for the business of the second party and to carry out its contemplated objects,</p> <p>Now, Therefore, This Agreement Witnesseth:</p> <p>(1) That the first party has sold, assigned, transferred and set over, and does hereby sell, assign, transfer and set over unto the second party, its successors and assigns, all its right, title and interest in and to the following, to wit:</p> <p>(a) All the machinery, furnaces, pumps, heaters, boxes, stands, eastings, pipes, tanks, shafting, belting, pulleys, hangers, tools, implements, utensils, jokers, nipples, patterns, molds, dies, metal supplies, and property of every nature whatsoever belonging to the first party which relates to or is used in connection with that branch of the business of the first party known as the Hard WTiite Metal Department.</p> <p>(b) The office furniture, books, stationery, supplies, correspondence, customers, trade lists, and all data pertaining to that branch of the business of the first party now herein sold to the second party.</p> <p>(e) The exclusive right to all of the letters patent, inventions, formulas, recipes, good will, brands, trade rights and manufacturing processes owned or in any .way controlled by the first party and used in the Hard White Metal business, but subject to the limitations in clause .‘d’ hereof.</p> <p>_ (d) It is mutually understood and agreed that the right to patents, etc., referred to in the foregoing clause ‘c’, covers the same only in so far as the hard white metal business is concerned, i. e., where, for example, an invention or process is used in both the soft metal and the hard metal departments of the first party, the first party does not preclude itself from continuing the same in the soft metal business which it is conducting, but the ‘exclusive rights’ to the second party apply only to the hard metal business herein acquired by the second party, and the first party, its successors, assigns, or licensees are excluded from using same in competition with the second party in the conduct of its hard metal business.</p> <p>(2) The second party hereby accepts the property and rights by the first party sold, assigned, transferred and set over unto it as aforesaid, and in consideration thereof hereby agrees to pay to the first party Twenty-five hundred dollars in cash and further to issue to it or to such nominees as the said first party shall in writing hereafter direct, at such times and in such amounts as shall by the first party be directed, certificates of stock of the second party to the aggregate amount of six hundred shares, and said shares shall be deemed to be and are hereby declared to be, full paid shares and not liable to any further call, and the holders of such stock shall not be liable to any further demands thereon.</p> <p>(3) Certificates of such stock shall be issued in part as follows:</p> <p>John West....................200 shares.</p> <p>Wm. DeCardy..................100 “</p> <p>John J. McElroy................100 "</p> <p>E. McNeal .....................100 “</p> <p>Fred DeCardy . ............ .100 “</p> <p>(4) It is understood and agreed that the shares of stock to be issued -under the terms of this contract may be issued (at the nomination of the first party) to any of the subscribers to the capital stock of the second party as set forth in the subscription agreement; and the delivery of the certificates to the first party or the parties designated by the first party, and their respective receipts for the same, shall be a full discharge of each of the parties to the extent thereof.</p> <p>(5) It is further agreed by the first party that it will not engage or be or become interested, directly or indirectly, in the business of manufacturing, selling and dealing in hard white metal goods herein sold to the second party.</p> <p>(6) It is mutually agreed by the parties hereto that they will each give and grant to the other the benefit and advantage of all improvements, information or knowledge acquired by one and of use in the business of the other; that all processes, inventions or patents developed or acquired by the one will be made known to the other, if of use in its business, with the privilege of using same in its business; the intent being that the said parties shall work in harmony in their respective businesses, and do all that can consistently be done to promote the interests of each other without interfering with their own business.</p> <p>(7) The first party hereby further covenants and agrees with the second party, upon the request and at the cost of the second party, to execute and do all such further assurance and things as shall reasonably be required by the second party for vesting in it the property and rights herein to it sold, transferred, assigned and set over, to give to the second party the full benefit of this agreement; and also to cause the original inventors of such of the patentable improvements, etc., herein sold, and upon which applications for letters patent have not yet been filed, to properly execute applications for letters patent, in this and any other country, and, as well, the proper assignments thereof to better vest in the second party their rights under this agreement, whenever it may be deemed advisable to have such application or instruments executed.</p> <p>In Witness Whereof, the parties hereto have caused this agreement to be signed in their respective names by their proper officers and attested by their corporate seals, the date and place first above written.</p> <p>Union Metal Meg. Co.</p> <p>By John West, President.</p> <p>E. McNeal, Secy.</p> <p>White Brass Castings Co.</p> <p>By N. E. Murray, Pres.</p> <p>W. A. Winterburn, Secy.”</p>

Attachment. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Statement Tby the Court. October 6,1905, appellant, Reid, Murdoch & Co., commenced a suit in attachment in the Circuit Court against the Richmond Canning Company, of Richmond, Indiana, for $1,440. A writ of attachment was issued and served upon the First National Bank of Chicago, as garnishee.

Action of debt upon bond. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Statement by the Court. This is a suit on an appeal bond filed in this court upon allowance of an appeal to the Supreme Court from a judgment of this court, which judgment was affirmed by the Supreme Court. U. S. Wringer Co. v. Cooney, 214 Ill. 520, The present suit was beg-un by praecipe filed May 5, 1905, and summons issued and declaration filed the same day.

Mechanic’s lien proceedings. Appeals from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Statement by the Court. These are appeals from decrees of the Circuit Court in two causes wherein the pleadings, orders and decrees were, it is said, practically identical except as to the amounts and property involved. Appellee seeks to enforce a mechanic’s lien for material furnished in the erection of buildings on the premises described.

Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Statement by the Court. Appellee filed in the Probate Court of Cook county her claim for $7,000 against the estate of Gustav A. Bode, deceased, which that court disallowed. She appealed to the Circuit Court, where the claim was allowed. From the order of the Circuit Court the administratrix prosecutes this appeal.

Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Statement by the Court. Appellant brought an action in assumpsit to recover from appellee a balance of $7,500 alleged to be due upon an insurance policy for $10,000 issued by appellee upon the life of William S. Jackson, her husband.

Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentatto, Judge, presiding. Statement Tby the Court. This is an action in assumpsit brought by appellees to recover damages .for an alleged failure of appellants to comply with a contract. The cause was submitted to a jury which returned a verdict in favor of appellees, assessing damages against appellants at $971. Judgment was rendered accordingly, from which defendants appeal.

Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Chytratts, Judge, presiding. Statement by the Court. ' This is a suit for alleged breach of a contract expressed in letters which are as follows: “Brauer Line. Philadelphia. Hamburg. Chicago, Ill., Nov. 23rd, 1901. J. B. K. No. 107. The Plano Mfg. Co., 1110 Chamber of Commerce Bldg., Chicago, Ill.

<p>Assumpsit. Error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</p>

Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Chaeles A. Bishop, Judge, presiding. Statement by the Court.

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</p> <p>Statement hy the Court. This is an appeal by the plaintiffs from a judgment for the defendants in an action of assumpsit which was tried by the court without a jury.</p> <p>Plaintiffs were, in 1904, bankers at Blandinsville, Illinois, and defendants then were engaged in selling horses on commission at the Union Stock Yards, Chicago. In March of that year, Isaac Grindell went to Blandinsville and engaged in the business of buying-horses in that vicinity and shipping them to the Union Stock Yards to be sold. He opened an account in his own name with plaintiffs. April 1, he applied to plaintiffs to discount his draft for $2,500 on defendants. In answer to a telegram from plaintiffs, defendants telegraphed them as follows: “We will pay draft Isaac Grindell $2,500 for horses shipped to ns.” Grindell drew a draft for that sum April 5, 1904, to the order of plaintiffs, which was discounted by them and paid by defendants. About this time John Dainty became a partner of Grindell. Grindell soon after April 5 informed plaintiffs that Dainty had gone into business with him, and plaintiffs wrote in Grindell’s pass book, over Ms name, the words, “Grindell & Dainty.” A few days before April 15, plaintiffs wrote defendants that they wished a letter stating absolutely that they would honor all drafts drawn by Grindell and Dainty, and in answer, under date of April 15, defendants wrote plaintiffs as follows: “We will honor drafts drawn by Dainty and Grindell, drawn on us for horses until further notice.” Grindell for Ms firm bought several carloads of horses in April, May and June, in the vicinity of Blandinsville, and shipped them to defendants to be sold. Before paying for each lot of horses so bought he drew, in the name of the firm, a draft on defendants to plaintiff s ’ order, which plaintiffs discounted, placed the proceeds to the credit of said firm, and paid the same out on checks drawn by Grindell in his own name. . The course of business between Grindell and Dainty and the plaintiffs was for Grindell to go into the country, buy horses, pay a small amount down on each horse, fix a day for the delivery of the horses at Blandinsville and payment of the remainder of the purchase price. Before going out he would sign a draft in the name of his firm on defendants, payable to the order of plaintiffs, with the date and amount left blank. When he had bought a carload of horses he would direct plaintiffs to fill out the draft for a certain amount and they would then fill out the draft and send it forward for collection. All the drafts so drawn previous to July were paid by the defendants. In the latter part of June, 1904, the co-partnership between Grindell and Dainty was dissolved and was not afterwards renewed'. In July, Grindell went out to buy horses, leaving with plaintiffs a blank draft on defendants to plaintiffs’ order, signed Grindell and Dainty. July 21, he attempted by telephone to direct the plaintiffs to make the draft for $2,300, but plaint-jiffs understood him, to say $3,300, filled out the draft for that amount and sent it forward for collection. Grindell shipped in his own name fourteen horses to defendants, which reached defendants and were sold before the draft was presented for payment. The net proceeds of the sale of the horses was $1,609.25. At the time they discounted said draft, plaintiffs did not know of the dissolution of the firm of Grindell and Dainty. Defendants learned of the dissolution of said firm before the horses were sold. The defendants refused to honor said draft on presentation, and plaintiffs protested the draft for non-payment and brought this suit.</p> <p>The first count of the amended declaration sets out the facts in detail and avers that defendants agreed to accept said draft for $3,300, but failed and refused to do so. The second count avers that defendants accepted said draft, but refused to pay it after such acceptance. The remaining counts are the consolidated common counts.</p>

Assumpsit. Appeal from the County Court of Cook county; the Hon. J. D. Welsh, Judge, presiding. Statement by the Court. The United States Tent & Awning Company, a corporation, brought assumpsit against M. A. Baccash and S. A. Saigh to recover damages on a contract of guarantee executed by them.

<p>1. Street—what not negligent maintenance of. Held, that scantling lying on the surface of a street did not render the same dangerous for horsemen or vehicles and that permitting it to lie there in the roadway was not actionable negligence.</p> <p>2. Pedestrian—care required of, using roadway. If a pedestrian elects to use that portion of the street designated for vehicles instead of the portion thereof designed for pedestrians, it is his duty to exercise sufficient care to avoid any obstacle, such as scantling, left in the roadway.</p> <p>3. Peremptory instruction—when properly given. A peremptory instruction for the defendant is properly given where the evidence taken as true, in its most favorable bearing, in support of plaintiff’s cause of action with all proper inferences which might be drawn therefrom, is insufficient to support a verdict and judgment for the plaintiff.</p>

<p>1. Interest—when cannot he recovered. Interest cannot be recovered of a trustee whose sole duty was to hold the money in question in trust and be ready to pay the same at any time upon demand of the party entitled thereto.</p> <p>2. Conversion—what does not constitute. A sheriff, who, as sheriff, receives redemption money and who after the expiration of his office as sheriff continues to hold such money as trustee, is not guilty of the conversion of the fund by making a deposit thereof in a bank if it appears that the person entitled to the fund in question had no property in the specific money in question, especially where it appears that the person finally claiming such fund for a long period of years did not claim or assert any title to or interest therein.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richabd W. Cliffoed, Judge, presiding. Statement by the Court. Appellee recovered a judgment in the Circuit Court for $8,000 against appellant for personal injury sustained by appellee April 21, 1903. This appeal is prosecuted to reverse the judgment.

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Linus C. Ruth, Judge, presiding. Statement by the Court. This is an appeal from a judgment of the Circuit Court of Cook county for $2,800 in favor of the appellee, who was plaintiff in that court, against appellant, who was defendant there. The declaration in the cause was in two counts.

<p>Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Scire facias. Appeal from the Circuit Court of Cook county; the Hon. Richabd W. Chfeobd, Judge, presiding.</p>

<p>Action of debt. Appeal from the Superior Court of Cook county; the Hon. Axel Chyteaus, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Statement by the Court. This is an appeal from a judgment for the sum of $7,500 in favor of appellee and against appellant. The suit was tried on an amended declaration, consisting of two counts, filed June 20, 1905.

Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Geoege A. Cabpenteb, Judge, presiding. Statement by the Court.

<p>Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Josfj?h E. Gary, Judge, presiding.</p>

<p>1. Res ipsa loquitur—doctrine of, defined. Proof of an injury occurring as the proximate result of an act which, under ordinary-circumstances, would not, if done with due care, have injured any one, is enough to make out a presumption of negligence. And this is held to be the rule even where no special relation, like that of passenger and carrier, exists between the parties.</p> <p>2. Res ipsa loquitur—how question whether presumption of negligence has been rebutted determined. Whether or not the defendant offered such explanation of the accident as to relieve itself from the charge of negligence, and whether or not the plaintiff exercised due care for his own safety, are questions of fact for the jury.</p> <p>3. Res ipsa loquitur—what does not preclude reliance upon. Neither the request by the plaintiff of an instruction which is in effect that if the jury believe from the evidence that the plaintiff has proved his case as alleged in the declaration by a preponderance of the evidence the verdict should be for him, nor the averring of negligence in each of the several counts of his declaration, nor the introduction of evidence in support of such allegations of negligence, precludes the plaintiff from relying in the trial and in the Appellate Court upon the doctrine of res ipsa loquitur.</p> <p>4. Verdict—what essential to preserve for review question as to whether, is contrary to the evidence. In order to preserve for review the question as to whether the verdict is contrary to the evidence, it is essential that a motion for a new trial be interposed and that after such motion has been overruled an exception be preserved and an assignment of error made, questioning the action of the court in overruling such motion for a new trial.</p>

<p>Assumpsit. Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

Bill in equity. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding. A motion made by appellees to dismiss the appeal for want of jurisdiction was reserved to the hearing. That motion is denied for reasons which will he found in the opinion of the court. Statement by the Court.

Bill for injunction, etc. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Cart, Judge, presiding. Statement by the Court.

<p>1. Ordinance—validity of, requiring licensing of public carts. A city council has power to require public carts to obtain a license.</p> <p>2. Ordinance—effect where void in part. An ordinance void in part and valid in part may be sustained as to the part which is valid.</p> <p>3. Common carrier—what is, within meaning of ordinance requiring licensing of public carts. An express or teaming company which owns horses and wagons and hires teamsters, by means of which merchandise is carried throughout a city for the public generally, is a common carrier within the meaning of an ordinance requiring the licensing of public carts, notwithstanding such express or teaming company exercises a discretion as to the person or persons whom it will serve.</p> <p>4. Common cabbies—defined. ' A common carrier is one who undertakes for hire or reward to transport from place to place the goods of those who choose to employ it.</p>

<p>1. Cross-bill—when not essential in proceeding for partnership dissolution. An answer is sufficient to obtain the affirmative relief of dissolution where the bill prays for a partnership accounting and dissolution.</p> <p>2. Accounting—when jurisdiction to make, cannot be questioned. An accounting had upon motion of one party without the objection of the other, in which both parties participated, cannot subsequently be questioned as made without jurisdiction.</p> <p>3. Jurisdiction—when question of, raised too late. A question of jurisdiction; which does not involve the subject-matter, cannot be first raised on appeal.</p> <p>4. Master in chancery—when finding by, cannot be complained of. Objections cannot be made in the Appellate Court to the findings of a master which were not objected to and where no exceptions to the report were urged before the court.</p>

Bill for injunction, etc. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding. Statement by the Court. This appeal seeks a review and a reversal of the decree of the Superior Court dismissing the bill of appellant for want of equity.

<p>1. Employer and employe—power of former to discharge. An employer has a lawful right to discharge an employe with or without vause, for any reason, however capricious and unfounded it might be.</p> <p>2. Discharge—right of action for maliciously obtaining. An employe whose discharge has been brought about through the malicious connivance of a third party has a right of action against such third party, and in this action both compensatory and exemplary damages may be awarded.</p> <p>3. Exemplary damages—when may be awarded. Exemplary damages may be recovered in all actions when malice is an ingredient.</p> <p>4. Exemplary damages—when court will not disturb. A reviewing court will not disturb an award of exemplary damages unless convinced that the award is so excessive as to be the offspring of prejudice, passion or undue influence.</p> <p>5. Verdict—when not excessive. A verdict of $1,200 in an action for maliciously obtaining the discharge of the plaintiff is held not excessive notwithstanding it was conceded that the sum awarded was in excess of the actual damages sustained, the exemplary damages awarded being held, in the opinion of the court, not so excessive as to indicate that they were the offspring of passion, prejudice or other undue influence.</p>

Bill for specific performance. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwjsn, Judge, presiding. Statement toy the Court. The bill in this case is in the nature of one for specific performance and comes before us upon an appeal from an interlocutory order of injunction entered by the Superior Court, without notice. The parties will be here referred to by their titles in the court below.

Attachment. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Ttjthill, Judge, presiding. Statement by the Court. This is an appeal, in attachment originally begun by appellee February 9, 1898, and in which he obtained judgment March 24, 1898, for $3,340.

<p>Action on the case. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Chytratts, Judge, presiding.</p>

Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Statement by the Court. This is an appeal by the defendant from a judgment for $2,795 recovered against him by the plaintiff in an action of assumpsit brought to recover the contract price of two mechanical stokers furnished by plaintiff to defendant under a written contract between the parties made September 11, 1902.

Mechanic’s lien. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Statement by the Court.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Statement by the Court. This is an appeal by the defendant from a judgment for $5,000 recovered against it by the plaintiff in an action on the case for personal injuries.

Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge presiding. Statement by the Court. This is an appeal from a decree of the Circuit Court dismissing appellant’s amended bill for want of equity, upon the close of complainant’s evidence.

<p>1. Traverse—effect of absence of. In an action upon a replevin bond the failure of the plea to traverse the allegations of the declaration of the failure to return the property in question has the effect of admitting such allegation.</p> <p>2. Replevin bond—what may be recovered in action upon. In an action upon a replevin bond the value of the attorney’s services in defending the action of replevin may properly be included.</p> <p>3. Replevin bond—what prima facie evidence in action upon, of value of property replevied. The affidavit of replevin is prima facie evidence as against the plaintiff in a replevin suit of the value of the goods replevied.</p>

Assumpsit. Appeal from the Circuit Court of Cook county; the I-Ion. John Gibbons, Judge, presiding. Statement by the Court. Fred W. Wolf, appellee, brought this action in the Circuit Court against the ( hic-ago Sign Printing Company, appellant. The declaration consists of the common counts. The defendant filed its plea of the general issue.

<p>Contested claim in court of probate. Appeal from the Circuit Court of DuPage county; the Hon. Linus C. Ruth, Judge, presiding.</p>

<p>Assumpsit. Appeal from the County Court of Lake county; the Hon. D. L. Jones, Judge, presiding.</p>

<p>1. Contributory negligence—when failure to look and listen constitutes. It is the duty of one approaching a railroad crossing upon a highway to look and listen for approaching trains, if a reasonably prudent person so situated would look and listen, and a failure to look and listen precludes a recovery for personal injuries where to have looked and listened would have prevented the injury, and wheré there were no circumstances or conditions justifying such failure to look and listen and no obstruction to the view. »</p> <p>2. Evidence—relative value of positive and negative. Positive evidence as to the fact that a bell was rung or a whistle sounded, is entitled to more weight than negative evidence in relation thereto.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>1. Attachment—what judgment in, should contain. A judgment in attachment should not only quash the writ but should provide that the. defendant go hence without day and recover his costs of the plaintiff and have execution therefor.</p> <p>- 2. Statute of Frauds—what contract not within, as failing sufficiently to describe land agreed to be conveyed. A contract by which it is agreed to transfer “158 acres, Lee county, Illinois,” when accompanied by a written description of the property, sufficiently describes the land and is not within the Statute of Frauds.</p> <p>3. Statute of Frauds—what contract within, as failing sufficiently to describe land agreed to be conveyed. A written contract by which “a frame residence in Walnut, Illinois,” etc., is agreed to be conveyed, insufficiently described the property and the contract is within the Statute of Frauds.</p> <p>4. Statute of Frauds—when may be availed of at law by demurrer. The benefit of the Statute of Frauds as a defense to a suit at law can be taken by demurrer only when it affirmatively appears from the pleadings that the agreement relied upon is not evidenced by a writing duly signed.</p> <p>5. Attachment—when action of court in denying motion to continue, pending appeal, will not be reviewed. The action of the court in denying a motion to continue an attachment lien pending an appeal will not be reviewed where it appears that after the denial of such motion the defendant in the attachment had sold the property in question.</p>

<p>Mandamus. Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>1. Dubess—defined. Duress exists when one, by the unlawful act of another, is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will.</p> <p>2. Dubess—what does not constitute. It is not unlawful for one person who has or thinks he has a demand against another, to tell that person that unless he complies with the demand he will institute suit against him and circulate reports of that fact, and this even though the person so threatened was at the time seeking election to public office and feared the effect of the resulting notoriéty.</p>

<p>Assumpsit. Appeal from the County Court of Peoria county; the Hon. Wilbert I. Slemmoks, Judge, presiding.</p>

<p>Verdict—when not excessive. A verdict for $4,500 in an action for personal injuries which has been reduced by remittitur to $3,500 is not excessive where it appears that the plaintiff’s nose was broken and permanently twisted to one side, causing a lasting disfigurement, and where it also appeared that certain bones of the head were broken from which he suffered much pain.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugb, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthihgtoit, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugii, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Vebdict—when set aside as against the evidence. Notwithstanding the amount involved in a cause is small, a verdict will be set aside on review if manifestly contrary to the law and the evidence.</p>

<p>Plea—when court may properly exclude proof of, upon which issue has teen joined. The action of the court in excluding evidence offered after proof of a plea is proper notwithstanding such plea and the evidence in support thereof would constitute no legal defense to the action.</p>

<p>Action commenced before 'justice of the peace. Appeal from the City Court of Elgin; the Hon. John L. Healy, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Peoria .county; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>Action on the case. .Appeal from the Circuit Court of Will county; the Hon. Albebt O. Mabshaxe, Judge, presiding.</p>

<p>1. Attorney’s eees^—when properly chargeable to estate. It is not only proper but it is the duty of the judge of probate to alloys fees for services of attorneys in obtaining the construction of an ambiguous will and to order their payment from the funds of the estate.</p> <p>2. Executors—when allowance of fees excessive. Six per cent, upon the total estate handled is an excessive allowance where it appears that the greater portion of the work was performed by executor’s attorneys, who were liberally paid, and that otherwise there was no special labor expended in the administration of the estate.</p>

<p>Action on the case. Appeal from the Circuit Court of Bureau county; the Hon. Samuel C. Stough, Judge, presiding.</p>

Criminal prosecution under Dram-shop Act. Error to the County Court of DeKalb county; the Hon. W. L. Pond, Judge, presiding. Statement Tby tlie Court. The state’s attorney of DeKalb county filed an information in the County Court against Andrew Grom, containing thirty-four counts. The first twenty-six counts were drawn under section 2 of the Dram-Shop Act and charged so many separate sales of liquor by defendant without a license.

<p>Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding.</p>

<p>Assumpsit. Appeal from the County Court of Lake county; the Hon. D. L. Jones, Judge, presiding.</p>

<p>Action of debt upon bond. Appeal from the Circuit Court of Marshall county; the Hon. Theodobe N. Gkeen, Judge presiding.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. F. L. Hooper, Judge, presiding. Statement ¡by the Court. This is a suit by Emil Jacobson against Joseph J. Duffy and Mortimer J. Scanlan to recover damages for injuries received by him while working upon an excavation for the drainage channel of the Sanitary District of Chicago upon a certain portion of that work described as section two.

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Kankakee county; the Hon. F. L. Hooper, Judge, presiding. Statement by the Court. Harry M. Pittman was the conductor of a local freight train on the Chicago & Eastern Illinois Railroad running between Momence- and Dalton. He lived at Momence, and made a found! trip each week day. He had a crew of three brakemen under him, and an engineer and fireman.

<p>Trespass. Appeal from the Circuit Court of Kankakee county; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>1. Master in chancery—when findings erf fact not subject to review. Findings oí fact made "by a master are not "subject to review where the evidence upon which such findings are predicated is not preserved in the transcript</p> <p>2. Writ oe error—what cannot be considered upon review by. A transcript filed upon a former appeal or writ of error proceedings cannot be considered by the Appellate Court in' a subsequent review proceeding.</p>

<p>This case is controlled by the decision in Morganstein v. Commercial National Bank, 125 Ill. App. 397.</p>

<p>1. School trustees—power of, to borrow money. School trustees organized under special act of the legislature who have power to determine the amount of taxes required and have the same levied by the city council, have authority by virtue of section 2 of the act of May 11, 1901, to borrow money in anticipation of the collection of such taxes.</p> <p>2. School trustees—form of orders of, for money borrowed under section 2 of act of May 11, 1901. Where money is borrowed pursuant to section 2 of the act of May 11, 1901, the orders issued should not be made payable outside of the state, and they should state directly upon their face that they are payable solely from current taxes to be collected. Such orders are not negotiable so as to entitle the holder thereof to protection under the laws relating to bills and notes.</p> <p>3. Injunction—when does not lie to restrain payment of school orders. Injunction will not be awarded to restrain the payment of school orders, although irregular and contrary to statute in form, if the money thereon was obtained, the taxes out of which they Y'ere payable have been collected, and the orders themselves have matured.</p>

Judgment by confession. Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eedredge, Judge, presiding. Statement by the Court. On October 12, 1906, Dennis V. Connolly, as administrator of the estate of Catherine Connolly, deceased, obtained a judgment by confession against Heinrich Dammann and Dora Dammann for $1,686 and costs.

<p>1. Merchandise—when sale of, void as against creditors. A sale of merchandise is void as against creditors unless the act of May 13, 1905, is complied with.</p> <p>2. Chattel mortgage—when void as against creditors. A chattel mortgage not acknowledged and recorded in accordance with the Chattel Mortgage Act is void as against creditors.</p> <p>3. Chattel mortgage—when void as against creditors. A chattel mortgage upon merchandise is void as against creditors if the mortgagor is permitted by the mortgagee to sell at retail from such merchandise.</p> <p>4. Chattel mortgage—when possession under, does not cure defect in acTcnoioledgment and recording. Possession under a chattel mortgage covering a-stock of merchandise does not cure a failure to acknowledge and record the same as required by statute if it does not cover after,-acquired property and it does not appear by a showing that the stock of merchandise of which possession was taken was the same stock of merchandise which existed at the time the mortgage was given.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding. Statement by the Court. Frank, Fred, Rachel and Flora Ives, Hattie Ives Prouty and Roy Ballard, partners doing business under the firm name of G. Ives & Sons, brought this suit against John and Minerva Muhlenburg before a justice of the peace. Plaintiffs were defeated and appealed to the Circuit Court.

<p>This case is controlled by the decision in Ives v. Muhlenburg, ante, p. 517.</p>

<p>1. Instruction—when erroneous with respect to degree of proof required. An instruction in a civil action is erroneous which requires proof on the part of the plaintiff to such extent as to remove all doubt from the minds of the jury.</p> <p>2. Warranty—when instruction in action upon, misleading. In an action upon a breach of warranty in which no claim is made of a failure to exercise due care, an instruction authorizing recovery upon proof of a showing of the failure to exercise due care, is prejudicially misleading.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Kankakee county; the Hon. A. 0. Marshall, Judge, presiding.</p>

<p>1. Contracts—power of municipal officers to make. The executive officers of a city can make no contracts except such as are authorized by ordinance. They are but the agents of the city for which they act and parties contracting with them are bound to take notice of the extent of their authority.</p> <p>2. Local improvement—what essential to recovery for making of. Where a local improvement is provided for by ordinance which expressly refers to the Local Improvement Act of 1897, the contractor (having agreed to take his pay in orders, three-fourths of which are payable out of the proceeds of the special assessment levied for such improvement) cannot recover for any portion of such improvement payable out of the special assessment until it is first shown to have been collected by the city.</p>

<p>Assumpsit. Appeal from the County Court of Peoria county; the Hon. Wilbert I. Slemmons, Judge, presiding.</p>

<p>Assumpsit. Appeal from the County Court of Peoria county; the Hon. Wilbert I. Slbmmons, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of DeKalb county; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>1. Promissory note—what defense to, as against innocent holder for value. If the indorsement of a promissory note essential to give it validity is a forgery or was obtained by fraud and circumvention without negligence on the part, of the party defrauded, a perfect defense exists to the note even as against an innocent holder for value.</p> <p>2. Counter-affidavits—when should not he considered upon motion to set aside judgment hy confession. Counter-affidavits upon the merits should not be heard upon a motion to set aside a judgment entered by confession.</p> <p>3. Judsment by confession—how affidavits presented upon motion to set aside, considered. Affidavits presented- upon a motion to set aside a judgment entered by confession should be closely scrutinized and the intendments thereof taken most strongly against the applicant.</p>

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

<p>1. Crossing—what essential to recovery of expenditures for repairs upon. In order that a town may recover of a railroad expenditures by it made in repairing a crossing, it must appear as a jurisdictional foundation for the admission of the notice served upon the railroad to repair that the commissioners of highways had officially passed upon the crossing and directed the service of such notice.</p> <p>2. Commissioners of highways—how official acts of, must he shown. The official acts and proceedings of commissioners of highways must be shown by the record only, and such record cannot he contradicted, aided or supplemented by parol.</p>

<p>1. Probable cause—defined. Probable cause is a reasonable ground for belief in the existence of such a state of facts as would warrant a suit or proceeding complained of. A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense, constitutes probable cause.</p> <p>2. Malicious tbosecutiost—what defense to action of. Where a party consults with competent legal counsel, in good faith, .to ascertain what course to pursue in reference to acts done by another, and such counsel after proper deliberation and examination of the facts advises an arrest for a criminal offense, the party causing the arrest should not be held to respond in damages for want of probable cause for his action in the premis.es.</p>

<p>Reformation—when, of bond, will be awarded. A bond given as township treasurer will be reformed where it appears that it was the intention of all parties that such bond should be a bond as treasurer of a board of school inspectors, to which office, and to which office only, the principal had been appointed.</p>

<p>Bill in equity. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Kankakee county; the Hon. Albert 0. Marshall, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Fbank L. Hoopeb, Judge, presiding.</p>

<p>Forcible entry and detainer. Appeal from the County Court of Winnebago county; the Hon. Louis M. Reckhow, Judge, presiding.</p>

<p>Judgment by confession—when not subject to attack in equity. A judgment entered by confession is not subject to attack in equity where the grounds of the attack are such as may be made the basis of a motion to set aside the judgment complained of.</p>

Assumpsit. Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding. Statement by the Court. This suit was begun in assumpsit on the 31st day of May, 1906, in the Circuit Court of LaSalle county, by Marie B. Sinon against the Boyal Neighbors of America, a fraternal life insurance company.

<p>1. Husband and wife—how far incompetent as witnesses. A husband and wife are net competent to testify for or against each other as to any conversation between themselves, nor as to any conversations by themselves with third parties, in suits by them against third parties, except in cases where the litigation shall be concerning the separate property of the wife.</p> <p>2. Books of account—what not competent. The general rule is that entries in the books of a third person of transactions between such third person and others not parties to the litigation or one of the parties litigant, are res inter alios acta as to the other party litigant and inadmissible.</p> <p>3. Instruction—when invades province of jury. An instruction which undertakes to tell the jury the strength of a presumption, invades the province of the jury, as it is for the jury to determine whether a presumption of fact exists, and if a presumption of fact does exist, the strength of such presumption.</p>

<p>Petition for removal of administrator, etc. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holdeb, Judge, presiding.</p>

<p>Enromas of coubt—when not disturbed as against the evidence. The- findings of a court will not be set aside on review as against the evidence unless it is clearly and manifestly against the weight of the evidence.</p>

<p>1. Contributory negligence—when person-injured upon railroad crossing guilty of. Held, from the evidence in this case, that the plaintiff, injured upon a railroad crossing, was guilty of contributory negligence which barred his recovery.</p> <p>2. Instruction—when, upon duty of railroad company at crossing, misleading. An instruction which tells the jury that the defendant would he liable if it omitted either to ring a bell or sound the whistle on its engine when approaching a railroad crossing and which impliedly requires that such defendant should do both, is misleading and erroneous.-</p>

<p>1. Judgment—when final for purposes of appeal. Held, that a judgment in an action of debt in form set forth in the opinion disposes of the entire subject-matter of the litigation, and was therefore ' final and appealable.</p> <p>2. Attachment—when sheriff hound to levy without indemnifying bond. Possession of property by the attachment defendant is prima facie evidence of ownership and without knowledge of other claim the sheriff is bound to levy without an indemnifying bond.</p> <p>3. Debaetuke—how must he availed of. A departure in pleading to be availed of must be made the subject of special demurrer.</p>

<p>Action on the case. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Bubboughs, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of Gallatin county; the Hon. Prince A. Pearoe, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Replevin. Appeal from the City Court of East St. Louis; the' Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>1. Finding of court—when not subject to review. Where it nowhere appears in the hill oí exceptions filed in a cause that any objection was made or any exception taken to the finding and judgment oí the trial court and where it does not appear that any objections were made and exceptions preserved to the court’s rulings upon propositions of law, there is nothing preserved for review,</p> <p>2. Exception—what not sufficient. A recital of an exception contained in the clerk’s transcript of the daily record of couit proceedings, is not such an exception as will preserve a ruling' for review.</p>

<p>Action in case. Appeal from the Circuit Court of Madison county; the Hon. ~W. J. N. Moyebs, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. NeWlin, Judge, presiding.</p>