Volume 175 — Illinois Reports

<p>1. Schools—poioer of boards of education in districts of over 1000 inhabitants to change text boohs. Clause 9 of section 26, article 5, of the School law of 1889, (Laws of 1889, p. 297,) providing that school directors shall not permit text books to be changed oftener than once in four years, applies to boards of education in school districts having not less than 1000 nor more than 100,000 inhabitants.</p> <p>2. Same—writing-boohs are text boohs for penmanship instruction. Graded writing or copy-books, with printed forms and texts scientifically arranged, with printed instructions to each pupil in each book and with a manual of instruction for the teachers, are text books for penmanship instruction, within the meaning of the act prohibiting change of text books oftener than once in four years.</p>

<p>Practice—correct practice on reversal of joint judgment for want of jurisdiction of one defendant. A judgment against two joint defendants is a unit, and where one defendant was not served and did not appear the Appellate Court should reverse the judgment as to both defendants and remand generally, and cannot direct the trial court to enter a several judgment against the defendant served.</p>

<p>1. Cloud on title—allegations and proof must show complainant’s possession or that premises were vacant. A bill to set aside a tax deed as a cloud on title must, except in case of fraud, allege that complainant is in possession or that the property is unoccupied, and the allegation must be sustained by the proof to warrant recovery.</p> <p>2. Same—one having no title cannot maintain bill. One who has sold property and delivered possession thereof to the grantee cannot maintain a bill to remove a tax deed as a cloud on the title thereto, upon the refusal by the grantee to pay until the title is clear.</p> <p>3. Evidence—allegation of possession not sustained by proof of possession by a squatter. An allegation that complainant is in possession of the premises is not sustained by proof that the land was being plowed by a squatter, who was not a tenant of complainant nor in privity with her title.</p> <p>4. Tender—actual tender not essential to equitable relief. A bill to set aside a tax deed, which offers to pay into court any amount which may be found due, makes a sufficient averment of tender to entitle complainant to relief, and the court is not hound to find that the particular sum tendered is due, hut may find according to the facts.</p> <p>5. Same—tender must be absolute to fasten a liability for costs. The refusal by the holder of a tax deed of a tender of the amount due, accompanied by a demand upon him to perform an act not required by law nor by any contract or trust relation between the parties, does not authorize a decree against him for costs upon the subsequent setting aside of his deed as a cloud.</p>

<p>. 1. Corporations—chctrter best indicates purpose for which corporation is organized. The purpose for which a corporation is organized must be ascertained by reference to the terms of its charter.</p> <p>2. Taxation—when capital stock is properly assessed by State Board of Equalization. The capital stock and franchise of a corporation organized “to furnish light, heat and power for public and private uses” is properly assessed by the State Board of Equalization, and does not come within the proviso of section 3 of the Revenue act, as amended in 1893, (Laws of 1893, p. 172,) which permits corporations organized for purely manufacturing purposes to be assessed by the local assessor, even though the corporation generates its own electricity used for such heat, light and power.</p>

Writ op Error to the Circuit Court of Cumberland county; the Hon. Frank K. Dunn, Judge, presiding. At the Aug'ust term, 1897, of the circuit court of Cumberland county, the grand jury returned an indictment of two counts against the plaintiff in error, charging him with the crime of producing an abortion. At the following February term, 1898, he appeared before the court and entered a motion to quash the indictment and- each count thereof, which was overruled.

<p>1. Homestead—homestead right was merely an exemption prior to the act of 1873. Prior to the act creating a homestead estate, in force July 1, 1873, the homestead right was merely an exemption, and . upon the owner’s conveyance without relinquishing the homestead right the operation of the deed as to such exemption was stayed until the same was relinquished.or lost, when it became operative and transferred the homestead right to the grantee.</p> <p>2. Same—act of1873 creates an estate of homestead to the value of $1000. The act in force July 1,1873, creates an estate of homestead to the value of $1000, and where the property does not exceed $1000 in value the homestead estate embraces the entire title and interest of the householder, leaving no separate interest.</p> <p>3. Same—a deed not joined in by wife does not convey homestead. A deed to property embracing the homestead, which is not joined in by the wife, leaves the homestead estate in the grantor precisely as though the deed had not been executed, and such estate may be transferred by sufficient conveyance or it may descend to the heirs.</p> <p>4. Same—abandonment of homestead not pursuant to deed does not pass homestead estate to grantee. The title to a homestead estate remaining in the grantor because of the insufficiency of the deed will pass to the grantee if possession thereof is abandoned by the grantor pursuant to the deed, but the mere abandonment thereof by the grantor not pursuant to the deed, although it extinguishes the grantor’s homestead estate, does not pass title to the grantee.</p> <p>5. Same—lien of judgment attaches upon abandonment of homestead,. The abandonment of a homestead estate remaining in the grantor owing to the insufficiency of his deed, which abandonment is not in pursuance of the deed, leaves the premises subject to the lien of a previous judgment against the grantor upon which an execution has been returned nulla bona, and such lien is not affected by the grantor’s mortgage of the premises made after abandonment.</p>

<p>1. Variance—an objection of variance not made below is waived. To insure the consideration by the Supreme Court of an objection of variance between the allegation and proof, the record must show the objection was made at trial and the variance pointed out.</p> <p>2. Insurance—whether oral contract of insv/rumce exists is a question of fact. The question whether an oral contract of insurance was made is properly presented to the jury under an instruction requiring them to find that the parties agreed upon the company in which the insurance was to be placed, that the amount of the insurance was definitely fixed, the duration of the risk agreed upon, and that the. contract was definite and certain; and the jury’s finding in favor of its existence, and the Appellate Court’s judgment of affirmance, are conclusive of that question in the Supreme Court.</p>

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

<p>Appeal from the Circuit Court of Fulton county; the Hon. John A. Gray, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. W. T. Hodson, Judge, presiding.</p>

<p>1. Instructions—terms “due care” and “ordinary care” may be used interchangeably. The expressions “due care” and “ordinary care” are convertible terms, and it is not error to use the former in part of the instructions and the latter in the others.</p> <p>2. Same—evidence need not preponderate to entitle party to instruction based thereon. If there is evidence fairly tending to prove a fact, the party in whose favor that fact would operate is entitled to an instruction based thereon, as the question whether the evidence preponderates in favor of the truth of such fact is for the jury.</p> <p>3. Evidence—what prima facie sufficient to establish fact of existence of highway. In an action against a railroad company for negligence in allowing a car to stand partly on the highway, evidence that a traveled public way, upon which public funds and road labor had been expended, crossed the railroad track at the point in question, and that cattle-guards had been constructed on either side of the traveled way, is prima facie sufficient to establish a public highway.</p>

Frank Baker, Judge, presiding. On the 8th of May, 1892, the appellant, Max Mickel, and his sister, Annie Pitzele, were the owners of a lot in the city of Chicago adjacent to the one owned by the appellee John York, and on that day the respective parties, York being the party of the first part, entered into a party wall agreement, containing, among others, the following provisions: “It is hereby mutually agreed by the several parties, in consideration of the premises, that…

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

<p>1. Evidence—a copy of a copy of an unproved document is not admissible. A copy of an alleged agreement dissolving a partnership, made from a copy contained in the record of another case, is not admissible as secondary evidence, in the absence of proof that the original document was ever in existence, or, if in existence, that any reasonable effort was made to produce it.</p> <p>2. Instructions—instructions repeating the substance of others may be refused. Instructions may be refused which contain substantial repetitions of the principles announced in other given instructions.</p> <p>3. Same—abstract instructions may be refused. An instruction announcing an abstract rule of law may be refused, as it is the duty of counsel to draw it in such form as to apply it to the conditions of fact which the evidence tends to prove.</p> <p>4. Partnership—third parties not charged with'secret limitations on partner’s authority. Third parties dealing with a partner professing to act for the firm in the business actually carried on by it, are not bound by limitations contained in the partnership articles of which they have no notice.</p> <p>5. Same —firm is bound by acts of partner within apparent scope of his authority. One who sells goods to a partner, ostensibly for the firm and of a character within the scope of the partnership business, without notice that the purchase is made by such partner upon his own- account for a third person, may hold the firm liable, as there is nothing in such a transaction to put him upon inquiry.</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. Edmund W. Burke, Judge, presiding.</p>

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

<p>Appeal from the County Court of Madison county; the Hon. William P. Early, Judge, presiding.</p>

<p>1. Constitutional law—special legislation—essentials of law applicable to particular class. A law may be general though it applies only to a particular class of persons, but it-is essential that the classification be made so general as to bring within its limits all persons who are substantially in the same situation.</p> <p>2. Same—general words folloioing specific ones are limited in application. The words “other beverages,” used in the Trade-mark act of 1873, (Rev. Stat. 1874, p. 1084,) following the words “ale, porter, lager beer, soda” and “mineral water,” include only beverages of the same kind or class described by those particular-antecedent terms.</p> <p>3. Same—Trade-mark act of 1873 is a special law. The Trade-mark act of 1873, for the protection of “manufacturers, bottlers and dealers in ale, porter, lager beer, soda, mineral water and other beverages, from the loss of their casks, barrels, kegs, bottles and boxes,” is a special law, granting exclusive privileges in violation of the last two clauses of section 22 of article 4 of the constitution.</p> <p>4. Same—constitutional provision concerning search warrants construed. Section 6 of article 4 of the constitution, providing that no search warrant shall issue without probable cause, supported by affidavit, requires the affiant to state facts sufficient to satisfy the magistrate that probable cause exists for issuing the warrant.</p> <p>5. Same—search warrants—mere belief of affiant cannot be substituted for discretion of magistrate. An act which attempts to substitute the mere belief of the owner of property or of his agent that probable cause exists for issuing a search warrant, for the judicial discretion of the magistrate, and which authorizes a warrant to issue without a showing of facts, but upon mere belief or suspicion of the affiant, is unconstitutional.</p> <p>6. Same—what an unreasonable search, within meaning of constitution. A search is unreasonable, within the meaning of the constitution, the object of which is to enable an individual, who has scattered his property abroad, to search the premises of parties suspected of using such property without written consent, in order to regain the same, and thus collect evidence leading to prosecutions.</p> <p>7. Same—Trade-mark act of 1873 is unconstitutional. The Trademark act of 1873 (Rev. Stat. 1874, p. 1084,) is violative of section 22 of article 4 of the constitution, concerning special legislation, and of section 6 of article 2 of the constitution, concerning unreasonable searches and seizures.</p>

E. F. Dunne, Judge, presiding. A fire insurance policy was issued by the appellant to Ellie L. Graham, to which was attached a mortgagee slip making the loss payable to the appellee as its interest might appear. This slip was printed and contained a number of conditions, and seems to have been what is known as the “New York standard mortgagee clause.” A loss occurred, and appellee brought suit in its own name.

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. Theodore Brentan o, Judge, presiding.

<p>Appeal from the Circuit Court of Cook county; the Hqn. Frank Baker, Judge, presiding.</p>

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

Murray F. Tuley, Judge, presiding. This is a bill of interpleader, brought by the High Court Independent Order of Foresters, against Mary Delaney and Daniel Delaney.

E. F. Dunne, Judge, presiding. This was an action on the case, brought by appellants, against James H. Gilbert, sheriff of Cook county, for a false return upon an execution. The facts are practically undisputed. W. A. Cave and F. G. Mathison were co-partners doing business at different places in the city of Chicago.

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

<p>Writ op Error to the Criminal Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Practice— court may, at same term, approve appeal bond after expiration of time allowed. After the expiration of the time fixed by previous orders for filing an appeal bond, it is within the discretion of the court, during the same term at which such orders were entered, to approve the bond and order it filed, its action in so doing being, in effect, a further extension of time.</p>

Dorrance Dibell, Judge, presiding. This was an action on the case by appellees, against appellant, for damages occasioned by fire caused by a passing locomotive on defendant’s railroad, destroying certain buildings and personal property belonging to the plaintiffs. There was a trial by jury resulting in a verdict for plaintiffs for $7849.18.

Writ op Error, to the Circuit Court of Champaign county; the Hon. Francis M. Wright, Judge, presiding. This was a bill in equity, filed by plaintiffs in error, praying for the partition of certain lands lying in Champaign county, Illinois.

<p>1. Constitutional law—act relating to fires by locomotives is constitutional. The act relating to fires caused by locomotives, (Eev. Stat. 1874, p. 814,) making the fact of the communication of such fire full prima facie evidence to charge the railroad company with negligence, is not unconstitutional, as singling out railroad companies and unreasonably applying to them a harsher rule of evidence than is applicable where fires are caused by other agencies.</p> <p>2. Pleading—what is a sufficient allegation of defendant's duty as to running its locomotives. A declaration against a railroad company to recover damages for fire caused by a locomotive, which alleges that it was defendant’s duty “to so operate its road and its locomotive engines thereon that fire should not escape and be communicated therefrom,” sufficiently charges the defendant’s duty.</p> <p>3. Trial—when proper to overrule motion to direct verdict for defendant. A motion to direct a verdict for the defendant, in an action against a railroad company for damages caused by fire from a locomotive, is properly overruled where there is evidence sustaining the charge of the declaration, as it is for the jury to say whether defendant has overcome the presumption of negligence.</p> <p>4. Evidence—admissibility of evidence that same engine had emitted sparks at other times. In an action for damages for fire caused by an identified locomotive, evidence that the same engine, less than ten days after the fire in question, was seen going up the same grade near the location of the fire “throwing cinders from its smokestack,” is admissible, but the defendant has the right to disprove that fact or show that the engine had since gotten out of repair.</p> <p>5. Appeals and errors—whether fire was communicated as charged is for the jury. Whether the fire in question was communicated from the defendant’s engine, and if so, whether the defendant had taken proper precautions to prevent the escape of fire or had been negligent, are questions which the Supreme Court cannot review.</p>

<p>1. Evidence—evidence must be admitted if competent for any purpose. Evidence, if competent for any purpose, must be admitted, and its application restricted by instruction, if necessary.</p> <p>2. Pleading—when declaration charges seduction. A declaration alleging that the defendant “debauched and carnally knew” the plaintiff’s daughter properly charges seduction.</p> <p>3. Damages—disgrace is a material element of damage in seduction. In an action by a father for the seduction of his daughter the disgrace brought upon the plaintiff and Ms family is a material element of damage.</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. O. H. Horton, Judge, presiding.</p>

<p>Appeal from the County Court of Livingston county; the Hon. C. M. Barrickman, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Peoria .county; the Hon. T. M. Shaw, Judge, presiding'.</p>

Robert B. Si-iirley, Judge, presiding. This is an action on the case, brought by the appellee against the appellant company to recover damages for a personal injury. The declaration consisted originally of six counts; but the first, second, fourth and fifth counts were stricken out or withdrawn, and the third and sixth counts only were left standing. The defendant pleaded the general issue.

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. W. G. Ewing, Judge, presiding.

Jonas Hutchinson, Judge, presiding. David Saalfeldt, a youth nineteen years old, was employed by appellants in their bottling works in the city of Chicago, to wash bottles. While thus employed, together with two other servants of appellants, in the basement of appellants’ establishment, Cavanaugh, the foreman there, received an order from Casey, the foreman on the third floor, to send him (Casey) some bottles.

H. V. Freeman, Judge, presiding. This is an action to recover damages for a personal injury, brought by appellee against the appellant company.

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Charles Blanchard, 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. Edmund W. Burke, Judg'e, presiding.</p>

Hiram Bigelow, Judge, presiding. This is a bill for specific performance, filed on June 5, 1896, by the appellant against the appellees, Edwin E. Warren and Rilla Warren. The contract, whose performance the bill seeks to enforce, was dated February 14, 1895, and signed by the appellees under their respective seals, and was by them acknowledged before a notary public on the day of its date.

<p>1. Special assessments—effect where Supreme Court holds ordinance to be void. A holding by'the Supreme Court that a special assessment ordinance is void is in effect a setting aside of the assessment, and renders the judgment of confirmation void.</p> <p>2. Same—when eity is not barred by limitation from levying new assessment. Section 48 of article 9 of the City and Village act, (Rev. Stat. 1874, p. 239,) providing that where a city has failed to collect the whole of an assessment it may, “within five years after the confirmation of the original assessment, direct a new assessment,” etc., does not apply, as respects the five year limitation, where the assessment ordinance has been held void by the Supreme Court, as there is, in such case, no “confirmation.”</p>

John Barton Payne, Judge, presiding. This was a suit brought by Louise E. Hawkes, against Joel V. Taylor, on the following contract: “This agreement, made this 26th day of May, A. D. 1885, between Joel V. Taylor, party of the first part, of Cook county, Illinois, and Louise R. Hawkes, of the same place, witnesseth: “Whereas, the said party of the second part has this day sold and conveyed to the party of the first part all her right, title and interest in and to the…

<p>Writ op Error to the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Costs—chancellor’s apportionment of costs not disturbed in absence of abuse of discretion. The apportionment ■ of costs in a chancery proceeding is a matter within the discretion of the chancellor, and the Supreme Court will not interfere, in the absence of a clear showing of unfairness and injustice.</p>

<p>Eminent domain—the dismissal of condemnation proceeding does not arnml the assessment. The dismissal of a condemnation proceeding at the Distance of one property owner, after the confirmation of a special assessment fixing the benefits accruing to the property assessed, does not annul the confirmation judgment as to property owners not parties to such dismissal, and such judgment is binding upon the city, as to such owners, in a new proceeding for the same improvement.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>1 TxTT^/~nvTT7fNTmc a VTTi TVT7'/'nD'fi'"i7ici^_/yi/w3<ii//wi/n^-iVwi o /v/vz> <»m V/fn/w rrf X'ii.rIrtW\tonn+ iLiuuigcu. ill Actvui ua ct ju.ugAu.ciiL uy WALAcoaiuAL cm-ci cu m lcaau. liallc upon a cognovit as are indulged in the case of original judgments of courts of general jurisdiction.</p> <p>2. Bills of exception—;judgment by confession—what must be saved by bill of exceptions. The warrant of attorney, affidavit of execution and the note upon which judgment by confession is rendered in term time, must be preserved by a bill of exceptions to authorize the consideration, on appeal, of alleged error which requires their inspection by the reviewing tribunal.</p> <p>3. Same—findings presumed sustained by evidence, in absence of bill of exceptions. In the absence of a bill of exceptions preserving the warrant of attorney, affidavit of execution and the note upon which judgment by confession was rendered in term time, it will be presumed the court heard evidence on the questions as to whether the note was properly endorsed, and whether the warrant of attorney was so drawn as to bind the defendants.</p> <p>4. Appeals and errors—error will not lie to review judgment where errors are waived of record. A writ of error will lie to review the overruling of a motion to vacate a judgment by confession rendered upon a cognovit in term time, but will not lie to review the judgment itself, where, by the warrant of attorney and the cognovit, the defendants expressly waive and release all intervening errors and agree that no writ of error shall be prosecuted.</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. John G. Gar ver, Judge, presiding.</p>

<p>1. Taxes—statutory provisions concerning assessment are intended to afford tax-payers adequate protection. The statutory provisions concerning the tax-payer’s right to have the assessor’s valuation of his property for taxation reviewed by the board of review or the county board, are intended to provide adequate protection against fraudulent or oppressive assessments.</p> <p>2. Same—assessment can be questioned only for fraud or want of jurisdiction. The assessor and boards of review are invested by statute with the power to fix the valuation of taxable property, and their decisions in that regard can be questioned in the courts only for fraud or want of jurisdiction.</p> <p>3. Same—equity has power to grant relief against a fraudulent assessment. While it is not within the power of equity to supervise the honest judgment of an assessor as to the valuation of property, equity will interfere if such valuation is fixed from an improper motive and in disregard of duty, unless the complaining tax-payer has waived his right to relief.</p> <p>4. Same—when equity will not grant relief against a fraudulent assessment. Equity will not grant relief against a fraudulent assessment of taxable property by the assessor where the owner has failed to insist upon a legal remedy which would probably have afforded him complete relief.</p> <p>5. Same—refusal of county board to review assessment is not ground for enjoining tax. Upon the neglect or refusal of the county board to review an alleged fraudulent assessment of taxable property, the owner’s remedy is mandamus to compel the board to act, and he must pursue that remedy before seeking relief by injunction.</p> <p>6. Same—lack of time is not an excuse for not pursuing legal remedy. The fact that a property owner believes he will be unable to procure a writ of mandamus to compel the county board to review his alleged fraudulent assessment before he will be compelled -to pay the tax, is not an excuse for failing to apply for the writ and seeking to enjoin the tax in the first instance.</p> <p>7. Injunction—acts done after court acquires .jurisdiction are subject to court’s power. The forced payment of a tax after the court has acquired jurisdiction of a bill to enjoin the same is subject to the power of the court to compel restoration, even though no preliminary injunction is granted; and such payment cannot be availed of as a defense to the bill upon the ground that, the tax having been paid, there was nothing to enjoin.</p>

Theodore Brent ano, Judge, presiding. This was an action on the case, originally begun by Michael Connell, against appellant, for injuries alleged to have been received by him June 29, 1894, through the negligence of defendant, as charged, in running one of its cars against his wagon and throwing him out.

<p>•1. Damages—proximate damages defined. Proximate damages are such as are the ordinary and natural results of the defendant’s negligent acts of commission or omission, and such as might reasonably be anticipated would flow therefrom.</p> <p>2. Negligence—law regards only proximate results of negligent acts. The law regards only the direct and proximate results of the negligent acts of a party as creating a liability against him.</p> <p>3. Same—no liability exists for negligent acts resulting in mere fright or terror. No liability exists for negligent acts which occasion fright or terror, unaccompanied by physical injury, even though a nervous shock and subsequent illness result, where the acts of negligence are not of such a character as might reasonably be expected to have the effect produced.</p>

<p>Writ of Error to the County Court of Cook county; the Hon. Frank Scales, Judge, presiding.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, 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. Richard S. Tuthill, 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.- H. V. Freeman, Judge, presiding.</p> <p>This is a bill, filed by appellant against the appellees, alleging the sale of certain lots in the city of Chicago by the appellant to the appellees, Joseph Dux and John Thorsen, and praying for an account as to the amount due the appellant for purchase money, and that the appellant may have a vendor’s lien for such purchase money. An answer was filed by appellees, the defendants in the court below, denying that the appellant was entitled to a vendor’s lien. Replication was filed to the answer. A hearing was had upon testimony taken in open court before the chancellor, and a decree was rendered finding the allegations of the bill to be true, and that appellant was entitled to have a vendor’s lien for $2083.00; and ordering the appellees, Dux and Thorsen, to pay that amount to the appellant, with interest and costs, within thirty days, and that in default thereof the premises should be sold. The present appellees, who were defendants in the Superior Court of Cook, county, and against whom a decree was rendered, as above stated, took an appeal from such decree to the Appellate Court. The Appellate Court reversed the decree „ of the Superior Court, and dismissed the bill for want of equity. The present appeal is prosecuted from such judgement of the Appellate Court.</p>

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

Murray F. Tuley, Judge, presiding. The appellees, three hundred and seventy-three in number, residents and tax-payers of the city of Chicago, suing in behalf of themselves and all others similarly situated, filed a bill to enjoin the city from enforcing an ordinance providing that all vehicles used upon the streets of the city, including those for private use, for pleasure, etc., should pay an annual license fee, and that any person using any vehicle without first having…

<p>1. Limitations—neither mortgagor nor mortgagee can interpose statute against the other while relation exists. The truth of a statement made by a mortgagee to an absent mortgagor to induce the latter to quit-claim, that the former had held title to the property for many years, cannot be sustained by an attempt to prove title in the mortgagee, as against the mortgagor, under the Statute of Limitations.</p> <p>2. Mortgages—mortgagee may purchase equity of redemption from mortgagor. A mortgagee has the right to purchase the equity of redemption from the mortgagor, but courts will closely scrutinize the transaction to see that the mortgagor was not overreached.</p> <p>3. Fraud—the complaining party must use due diligence to investigate alleged false statements. A grantor seeking to set aside his deed on the ground of false representations by the grantee is not entitled to relief if he has failed to investigate the alleged statements, the falsity of which he could have ascertained by an inspection of documents in his own possession.</p> <p>4. Same—to constitute fraud, false statements must be made with knowledge of their untruth. To constitute such fraudulent representations as will induce equity to set aside a deed, it must appear not only that the representations were false, but also that the party making them knew at the time that they were untrue.</p> <p>5. Same—fraud and damage must concur tofwmish ground for judicial action. A deed will not be set aside, in equity, for false representations, where it does not appear affirmatively that the complainant has been injured thereby.</p> <p>6. Same—;fact that grantor had abandoned' property indicates that he did not rely solely on grantee’s statements. The abandonment of incumbered property by the owner for seventeen years, during which time he resided in another State, paying no taxes on the property, nor anything on the mortgage debt, as interest or otherwise, is a circumstance indicating that in quit-claiming to the mortgagee’s assignee he did not so much rely upon the latter’s statements as to title as upon his own pre-existing belief that he had lost his rights.</p> <p>7. Same—when equity will not set aside deed for false representations. A quit-claim deed made by a mortgagor who had abandoned the property for seventeen years, to the mortgagee’s assignee, upon .the latter’s representation that the mortgage covering the lots in question and others had been foreclosed, will not be set aside in equity, though it appears that the lots were intentionally omitted from the foreclosure proceedings, where that fact was not known to the assignee, who supposed the omission was a mistake, and where the amount due on the property, for which the mortgagor was liable, equals or exceeds the value of the lots.</p>

<p>Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Cass county; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>1. Taxes—persona? tax is a lien on personal property of person assessed. Under section 254 of the Revenue act, (Rev. Stat. 1874, p. 899,) taxes assessed upon personal property constitute a lien upon the personal property of the party assessed from and after the tax books and warrants are received by the collector.</p> <p>2. Same—words “personalproperty" and “goods and chattels” have the same meaning. The words “personal property,” used in section 254 of the Revenue act, and the words “goods and chattels,” used in section 137, have the same meaning, and include all species of personalty which may be subject to levy and sale under execution.</p> <p>3. Same—making assignment for creditors does not defeat personal tax lien. The Men of a personal property tax is in the nature of that of an execution, and, if existing at the time of the tax debtor’s assignment for creditors, may be enforced against all personal assets in the assignee’s hands which are subject to levy under an execution, or, if disposed of, against the funds realized in his hands.</p> <p>4. Same—lien of personal tax not confined to property owned at time of assessment. The lien of a personal property tax, while extending only to personal property subject to levy and sale under an ordinary execution, is not confined to property owned at the time of the assessment, but extends to that afterwards acquired.</p> <p>5. Same—a tax is not a debt, in the ordinary sense of that term. A tax is not a debt, in the ordinary sense of that term, but is an exaction or forced contribution from property, demanded by the taxing power to enable the government to discharge its functions.</p> <p>6. Same—collector has no power to colled tax by taking judgment. The collector’s power to collect a personal property tax is to demand and receive payment or enforce the lien of his warrant, and he cannot'bring an action against the tax debtor, that power being lodged, by section 230 of the Revenue act, in the county board.</p> <p>7. Voluntary assignments—when personal tax cannot be allowed as a claim against assignee for creditors. The collector has no right to a judgment against an assignee for the insolvent’s personal tax, or to an order requiring the assignee to pay the same as a claim against the estate, in the absence of evidence that the assignee has personal property subject to levy and sale under execution, upon which, or upon the proceeds arising from the sale thereof, the tax warrant was a lien at the time of the assignment.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding.</p>

<p>1. Pleading—equity—party defaulted for want of answer cannot file cross-bill. A party who has been defaulted for want of an answer cannot, of right, file a cross-bill.</p> <p>2. Same—cross-bill must be consistent with matters alleged in the answer. A cross-bill inconsistent with or antagonistic to the answer to the original bill is properly stricken from the files, and the subsequent amendment of the answer is of no avail if no attempt is made to re-file the cross-bill.</p> <p>3. Equity—when bill need not be treated as one purely for partition. A bill filed by two of the heirs, asking that a certain deed of their ancestors be declared a mortgage and their right to redeem established, and which asks for a partition or division of the realty between complainants and such of the defendants as establish a valid title to the remaining interests, need not be treated as a bill for partition, requiring, as essential to relief, an ascertainment of the rights of the other heirs, made defendants, who failed to present their rights by appropriate pleadings.</p> <p>4. Conveyances—one purchasing with notice of vendor's infirmity of title takes only his interest. One purchasing an undivided half interest' in land by a conveyance containing no covenant of warranty, and with notice that the deed by which the vendor acquired a one-third interest in the land was intended as a mortgage, takes only the vendor’s interest, and, upon such deed being judicially declared to be a mortgage after the land has been re-sold, must account to the parties entitled to redeem for one-half the value of their interest in excess of the amount necessary to redeem.</p> <p>5. Appeals and errors—chancellor's findings of fact not disturbed unless palpably erroneous. The chancellor’s finding, on conflicting evidence, that the vendor of a half interest in land was “in full possession of his mental faculties and capable of giving a legally binding assent to matters affecting his real estate,” will not be disturbed on appeal, unless palpably erroneous.</p>

<p>1. Ejectment—estoppel in pais not available in ejectment. An estoppel in pais affecting a permanent interest in land can be availed of only in a court of equity, and cannot be invoked, in an action of ejectment, to prevent the assertion of legal title.</p> <p>2. Same—when case should be submitted to jury. A plaintiff in ejectment who shows title to the premises by mesne conveyances from the defendant, and who offers evidence tending to show the latter’s possession, is entitled to have the case go to the jury, and the court cannot direct a verdict for the defendant under evidence relied upon to establish an estoppel in pais against the plaintiff.</p> <p>3. Same—to constitute an estoppel as to boundary lines an actual agreement must be shown. The acceptance and possession by a grantee and his grantees of a tract of land less than that described in the original deed, do not, in the absence of any agreement, estop a subsequent grantee from asserting title to the land not so included, in an action of ejectment against the original grantor.</p>

<p>1. Waiver—putting in evidence after denial of motion to instruct for defendant is a waiver. A defendant who puts in his evidence after the denial of his motion to direct a verdict, and who fails to renew the motion or .ask for a peremptory instruction at the close of all the evidence, waives his right to assign the denial as error.</p> <p>2. Landlord and tenant—what necessary to constitute an eviction. In order to constitute an eviction the tenant must abandon the premises on account of some act of the landlord, and the latter’s entry after abandonment by the tenant is not an eviction.</p> <p>3. Same—landlord’s entry after abandonment does not relieve tenant from paying rent. ■ Upon abandonment of leased premises by the tenant without the landlord’s fault, the latter may re-enter and re-rent the premises, crediting the former tenant with the proceeds, and his so taking possession does not relieve the tenant from liability for the stipulated rent.</p> <p>4. Same—destruction of leased premises by fire—liability of lessee for rent. A lessee of the land and building is not excused from his covenant to pay rent by the loss of the premises by fire, if anything remains to which the lease may attach.</p> <p>5. Same—there is no implied warranty that leased premises will remain tenantable. There is no implied warranty by the lessor that the premises will remain tenantable until the end of the'term, and if they are rendered untenantable, but not destroyed, the tenant is not relieved from his covenant to pay rent, but may repair the premises and enjoy them until the end of the term.</p> <p>6. Leases—when lease of building will carry the land. A lease of a building described as being certain numbers on a certain street carries the land as well as the building, although certain portions of the building are reserved to the use of the lessor,</p> <p>7. Same—wh at not a total destruction of building. The burning of the roof and portions of the upper floors of a five-story building, leaving the walls, first floor and basement intact, is not such a total destruction as relieves the lessee of the building from his covenant to pay rent.</p> <p>8. Evidence—evidence that tenant leased other jpremises after fire is admissible to show abandonment. In an action by a lessor to recover rent for premises rendered untenantable by Are, evidence that the lessee,, after the fire, leased other premises is admissible, as showing that the lessee did not intend to return to his former quarters, which the lessor repaired and re-rented.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Dorrance Dibell, Judge, presiding.</p> <p>This is an appeal from a decree of the Iroquois circuit court declaring the true construction of the second clause of the will of George W. Gaffield, deceased. The clause is as follows:</p> <p>“Second—I give and bequeath to my cousin and friend, Elizabeth Plumber, $2700, $800 to be invested in a home, and the balance of the $2700 to be kept on interest and the interest to be paid annually to her, and I appoint my friends Asbury Clark and Prank Coughenonr trustees to carry out this part of my will, and at her death to revert to John Gaffield’s heirs, if any funds unused at her death remain.”</p> <p>Clause 18 of the will, which it is insisted is to be considered in connection with clause 2, is as follows:</p> <p>“Eighteenth—I give and devise all my household goods to Elizabeth Plumber.”</p> <p>The said second clause of the "will was construed by the chancellor in the court below to mean that $800 of the said sum of $2700 in the said second clause mentioned should be devoted to the purpose of purchasing a home for said Elizabeth Pltimber, and that when purchased said home should be her absolute property; that the remainder of said sum of $2700, to-wit, the sum of $1900, should be kept at interest and the annual interest income thereof should be paid to the said Elizabeth Plumber, but that it was the intention of the testator that if the necessities of the said Elizabeth so,demanded, the necessary portion of the principal sum should be applied to her relief. In accordance with this construction the court decreed that a lot which William Brown and John H. Karr, the then acting trustees under the second clause of the will, had previously purchased out of the said fund, and on which lot said trustees had, also out of the same fund, erected a dwelling house, at a total cost of $800 for said lot and said dwelling, the title to which said trustees had caused to be conveyed to themselves, as trustees for the said Elizabeth Plumber, was the sole and absolute property of the said Elizabeth and should be conveyed to her by the master in chancery. The court further decreed that should said Elizabeth deem it necessary to expend all or any portion of the said sum of $1900 she should apply to a court in chancery by petition, setting forth the reasons for breaking in upon the principal sum of the said fund. It was, further decreed that certain defendants to the proceeding, being the heirs of the said John Gaffield, deceased, were entitled to the said principal sum of $1900, or such part thereof as remained unexpended at the time of the death of said Elizabeth Plumber. The other defendants to the proceeding were the trustees, the administrator de bonis non with the will annexed of the said deceased, and John Gaffield. This is an appeal perfected by the heirs of the said John Gaffield.</p>

<p>Appeal from the Count)?- Court of LaSalle county; the Hon. H. W. Johnson, Judge, presiding.</p> <p>This is an application by the county collector of LaSalle county for a judgment against the property of the appellant for taxes, certified to the county clerk, and by him extended upon the tax books of township 33, north, range 1, east of the third principal meridian, as a special tax for the purpose of purchasing a site and building a school house in said township for a high school. Objections were made by the appellant to the entry of judgment against his land. The objections were overruled. Exceptions were taken to the ruling and decision of the county court in overruling the objections. The appellant moved for a new trial, which motion was overruled, and exception was taken to the ruling. Thereupon judgment was entered by the court against the property of the appellant. The present appeal is prosecuted from such judgment.</p> <p>In March, 1896, at least fifteen days before the regular election of trustees of schools in and for said township 33, a petition of not less than fifty legal voters of said township was filed with the township treasurer thereof, asking the said treasurer to submit to the voters, at the regular election of the trustees then next following, the proposition of voting for or against establishing a township high school for the benefit of said township. On April 11, 1896, being the day for the regular election of school trustees of said township, there was submitted, in due form of law, to a vote of the voters of said township the proposition of establishing a township high school for the benefit of said township. At said election the proposition of establishing a high school was carried, and the result thereof declared according to law. On May 16, 1896, in pursuance of an election called by the trustees of schools in and for said township five members were duly elected as a township board of education; the returns of said last election were canvassed in accordance with law; the members met within the time prescribed by law and elected one of their number president, and elected a secretary; on July 18, 1896, the said township board of education made its certain certificate of levy, as follows: “We hereby certify that we require the amount of twenty-five thousand dollars (§25,000.00) as a special tax for the purpose of purchasing a school site, and for building purposes on the taxable property of our district, viz.: township 33, north, range No. 1, for the year 1896,” which certificate was signed by the five members of the township board of education of said township who were elected on May 16, 1896, as above stated.</p> <p>Said certificate of levy was filed in the office of the county clerk of LaSalle county, and in pursuance thereof the county .clerk extended on the books of the collector of the taxes in and for said township a tax on the real estate of the appellant.</p>

<p>1. Public improvements—requirements of section 4 of Local Improvement act of 1897 are imperative. Under section 4 of the Local Improvement act of 1897 (Laws of 1897, p. 103,) it is imperative that the owners of a majority of the abutting property shall petition the board for the improvement.</p> <p>2. Same—Local Improvement act contemplates a written petition. Section 4 of the Local Improvement act of 1897, providing that the owners of a majority of the abutting property “shall petition” for the improvement, contemplates a written petition signed by them.</p> <p>3. Same—term “owners” of property means owners of the fee. The term “owners,” used in the Local Improvement act of 1897, with reference to parties who are required to sign the petition for an improvement, means owners of the fee of the abutting property.</p> <p>4. Same—signature of a tenant in common represents only his individual part of lot. The signature to a street improvement petition of one tenant in common of a lot abutting on such street represents only his individual part of such lot, in the absence of any authority from his co-tenants to sign for them.</p> <p>5. S^jme—signature of husband as owner of wife’s lot cannot be included in estimate. The signature to a street improvement petition which represents the signer as the owner of abutting property in fact owned by his wife cannot be included in estimating the amount of property representation; nor can the wife, after the ordinance has been passed, ratify such signature so as to cure the defect.</p> <p>6. Same—ordinance based on insufficient petition is void. An ordinance based on a petition by abutting owners, as required by the Local Improvement act of 1897, is void if the unauthorized signatures of parties as owners of abutting property must necessarily be included to obtain a majority of property representation.</p> <p>7. Same—unauthorized signing as owner is a “substantial” variance. The act of one who signs a street improvement petition as owner of a lot in fact owned by another, is such a substantial variance between the requirements of the law and the actual mode of signing the petition as is contemplated by section 9 of the Local Improvement act of 1897, as may be shown to overcome the prima facie case made by the petition, recommendation of the board of improvement and the ordinance based thereon.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Carriers—carrier may assume liability as carrier to points beyond its terminus. A common carrier may contract to deliver goods to a point beyond its terminus, and thereby become liable as carrier for the whole distance, the connecting carriers being regarded as its agents, for whose negligence it is liable.</p> <p>2. Same—contract not superseded by bills of lading from connecting lines. An oral contract between a shipper and a duly authorized agent of an intermediate carrier, to receive perishable goods in refrigerator cars furnished by it to the forwarding line and transport them in the same cars to a point beyond its line, is not superseded by a bill of lading issued to the shipper by the forwarding line, which seeks to limit the latter’s liability.</p> <p>3. Appeals and errors—not every unguarded remark by the court is ground for reversal. It is only when an unguarded remark by the court, in the presence of the jury, upon a matter, of fact for the latter’s determination, is calculated to prejudice the rights of the defeated party that it is ground for reversal.</p> <p>4. Same—Supreme Court cannot review the facts in suits at law. All questions of fact in suits at law are conclusively settled by the Appellate Court’s judgment of affirmance.</p>

<p>Appeal from the County Court of McLean county; the Hon. E. A. Eussell, Judge, presiding.</p>

<p>This case is governed hy the decision in Greenwood v. Gmelich, (ante, p. 526).</p>

H. V. Freeman, Judge, presiding. On the 20th day of July, 1897, the president and board of trustees of the village of Morgan Park passed an ordinance for the construction of sidewalks in certain streets of the village. The ordinance was passed under and in pursuance of the Sidewalk act of April 15, 1875, (Hurd’s Stat. 1897, p. 309,) and in strict conformity to that statute.

<p>1. Drainage—granting petition at first meeting does not effect organization. An order entered by drainage commissioners granting the prayer of a petition for combined drainage at the first meeting called as required by section 13 of the Farm Drainage act, (Laws of 1885, p. 81,) does not legally organize the district, as the power of the commissioners at such meeting is confined to determining the sufficiency of the petition as a preliminary to organization in the manner prescribed in sections 14 and 15 of the same act.</p> <p>2. Same—statute makes no provision for reviewing action of commissioners in organizing district. Section 24 of the Farm Drainage act, which provides for an appeal to three supervisors of the county from the decision of drainage commissioners respecting the classification of lands, has no relation to the action of the commissioners in organizing the district or in finding in favor of the petition at the first meeting; nor does the statute provide any method for having such action reviewed.</p> <p>3. Same—land owners have a right to be heard on matters pertaining to organization. Land owners should be heard upon the questions whether the petition has been presented, whether their lands are involved in the drainage system, and upon all matters pertaining to organization, and may object to a consideration of the petition upon the ground that no notice has been given to them or to others, and may insist tb at the annexation of land shall be valid as a whole.</p> <p>4. Same—commissioners cannot include lands of persons not indicated in the petition as. owners. Drainage commissioners have no power to include in a combined system of drainage the lands of persons not signers of the petition nor named in' the petition as owners of any of the land therein described, and an objection based on such an inclusion may be made by the parties themselves or any other land owner affected by the proceeding.</p> <p>5. Certiorari—when certiorari will lie to test legality of commissioners action. The common law writ of certiorari lies to test the legality of the action of drainage commissioners in determining a controversy arising during the proceedings for the organization of a district, where such action appears from the record of its proceedings, and no method for reviewing the same is provided by statute, and the writ is applied for before the proposed district becomes a legal entity carrying out the purposes of its existence. (Lees v. Drainage Comrs. 125 Ill. 47, distinguished.)</p>

Original petition for mandamus. This is an original petition for mandamus, filed in this court by the People on the relation of the Attorney General against William Loeffler, city clerk of the city of Chicago, alleging that the city clerk has neglected to notify the civil service commissioners of vacancies in the positions or places of certain clerks and other employes and subordinates in his office, and to make requisitions on said commissioners for the names of persons to…

<p>1. Appeals and errors—when question of trial court’s abuse of discretion cannot be raised. The question of the abuse of the trial court’s discretion in permitting a special plea to be filed at the close of the evidence cannot be raised on appeal, where no exception was taken to the court’s action at trial.</p> <p>2. Demurrer—demurrer to plea admits that latter was properly filed. One who, without excepting to the court’s action in allowing a plea to be filed, promptly raises an issue of law by demurrer, thereby admits that the plea was properly filed.</p> <p>3. Pleading—when plea sufiiciently presents an estoppel by verdict. A plea sufficiently raises the question of estoppel by verdict which shows upon its face that a controlling fact iri the suit had been raised and determined in a former suit between the parties, the judgment wherein remains in full force and effect.</p>

<p>Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Richard S. Tut-hill, Judge, presiding.</p> <p>This is an action of trespass on the case, begun by the plaintiff in error against the defendant in error in the circuit court of Cook county on March 3, 1893. The action is brought for the purpose of recovering damages for the alleged malicious prosecution of an ordinary civil action without probable cause by the defendant in error against the plaintiff in error. The defendant below, the defendant in error here, filed a general demurrer to the declaration. This demurrer was overruled, and a plea of not guilty was filed to the plaintiff’s declaration. A trial was had before the court and a jury. After the introduction by the plaintiff in error, wtio was the plaintiff below, of all his testimony, the defendant in error moved the court to take the case from the jury without introducing any evidence whatever on its behalf. This motion was based upon two grounds: First, that such cases as the present are not maintainable in the State of Illinois; second, upon the ground that the evidence did not show a want of probable cause, or, in other words, did show that there was probable cause.</p> <p>After hearing the arguments of counsel, the court instructed the jury, that the evidence did not establish a case, on which the plaintiff was entitled to recover, and that their verdict should be in favor of the defendant. The action of the court in giving this instruction was duly excepted to by the plaintiff. Thereupon'the jury returned a verdict of not guilty, and, after overruling a motion for new trial made by the plaintiff, judgement was rendered in favor of the defendant and against the plaintiff for costs.</p> <p>The plaintiff below, the present plaintiff in error, took an appeal to the Appellate Court. The Appellate Court has affirmed the judgment of the circuit court; and the present writ of error is prosecute'd from such judgment of affirmance.</p> <p>The original action, for the alleged prosecution of which without probable cause the present action is brought," was begun by the defendant in error against the plaintiff in error on February 1, 1892, in the county of Kalamazoo in the State of Michigan. The Michigan suit, so begun by defendant in error against plaintiff-in error, was an action of trespass on the case, in which a declaration was filed by the Michigan Buggy Company, and a plea of not guilty -by Smith. That action was tried in Michigan before the court and a jury, and the jury returned a verdict in favor of the defendant therein, the plaintiff in error here.</p> <p>The Michigan Buggy Company, the present defendant in error, was a corporation organized under the laws of Michigan, having its place of business and principal office at Kalamazoo in that State. From July, 1891, up to February 1, 1892, the plaintiff in error, Smith, had been in the service of the defendant in error, the Michigan Buggy Company, as a traveling salesman. By his contract of employment, the territory, over which he was required to travel in order to sell the buggies and carriages manufactured by the defendant in error, was the State of Illinois. The suit, brought against the plaintiff in error by the defendant in error in Michigan, was for the purpose of recovering damages for fraudulent representations, alleged to have been made by the plaintiff in error to the defendant in error in order to obtain employment with it. The declaration in the Michigan action charged, that the plaintiff in error had represented, that, during two years prior to his employment by defendant in error, he had sold, while employed by another company, engaged in manufacturing carriages, by the name of the Abbott Buggy Company, from $60,000.00 to $65,-000.00 worth of buggies and carriages per year in each of said two years among his friends and acquaintances in Illinois. The declaration in that suit also alleged, that the plaintiff in error had represented to the defendant in error, that the persons, among whom he had made such sales, were his friends and acquaintances, and that he could control their trade and turn it over to the defendant in error if the defendant in error would employ him as requested; and that he furthermore represented, that he was a first-class salesman in the line of the business, in which the defendant in error was. engaged; and that he could sell for the defendant in error as many buggies and carriages per year, as he had sold for the Abbott Buggy Company during the two years in which he had been engaged in making sales for the last named company. The declaration then charged, that these statements and representations were false; that the plaintiff in error had not sold as many goods within the time stated as he represented; that he was not able to control such a trade as he represented that he could control; and that he was not such a first-class salesman as he represented himself to be. It was also alleged in such declaration, that, through these representations, the defendant in error had been induced to make a contract with the plaintiff in error, and to pay him large sums of money; and that the defendant in error had thereby suffered and sustained a great amount of loss, etc.</p>

<p>1. Appeals and errors—whether goods furnished, were those contracted for is a question of fact. In a suit at law to recover the price of coal furnished under a contract, the question whether the coal delivered was the kind called for in the contract is a question of fact conclusively settled by the judgment of the Appellate Court.</p> <p>2. Warranty—when warranty of quality cannot be implied. A contract calling for the delivery of a certain kind of coal designated by its trade name carries no implied warranty of its fitness for any purpose, or of its quality, other than that it be the kind specified.</p>

<p>Appeal from the Appellate Court for the Third District;—heard in .that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p> <p>This is an action on the case for a personal injury, brought by the appellee against the appellant company. Plea of the general issue was filed; and the trial in the circuit court before the judge and a jury resulted in a verdict in favor of the appellee. Judgment was rendered upon the verdict. An appeal was taken to the Appellate Court, and the judgment of the circuit court has been affirmed. The present appeal is taken from such judgment of affirmance.</p> <p>The facts are substantially as follows: On the evening of September 27, 1895, the appellee, and her brother-in-law, one John H. Hoeffner, together attended a show on exhibition at the Springfield fair grounds. About half-past niue o’clock, they there took an open trailer, following and attached to a closed car of the defendant company, used as a motor, to return. When the conductor came to the appellee to collect her fare, she notified him, that she wished to get off at the crossing of Ninth and Reynolds streets in Springfield, and requested him to stop the car there to enable her to do so; and again, when about four blocks from that crossing, she told the conductor, in reply to a question from him, that she desired to get off at the corner of Ninth and Reynolds streets. On reaching the crossing, the speed of the train was slackened so that it was traveling very slowly. Her brother-in-law alighted on the north side of the street, the cars g'oing south. As the cars continued to slacken their gait and go more slowly, she arose, and prepared to alight when the car should stop dn the other side of the crossing. „ She stood with one foot on the car and the other on the foot-boárd, and was holding on to the brass arm of the seat. While she was in this position, and while it seemed that the car was about to stop and she was about to alight, the car, without stopping, started forward with a sudden and violent jerk, breaking her bold and throwing her upon her back so as to cause the injuries complained of, the most serious of which was to her spine. Her brother-in-law came up to her at once and asked if she was hurt, to which she answered “yes.” It was with difficulty that she reached her home about four blocks distant, where she immediately went to bed, and sent for her family physician, who came at about eleven o’clock, and upon examination ascertained, and on the trial testified, that she was seriously hurt.</p>