Volume 27 — Illinois Appellate Court Reports

<p>Fire Insurance — Amount of Loss — Notary's Certificate — Evidence— Opinion of Witnesses — Cross-Examination—Discretion—Remarles of Trial Judge —Instructions.</p> <p>1. In an action on a policy of Are insurance the amount of loss is a question for the jury, and the recovery is not limited to the amount stated as the loss in the notary’s certificate,</p> <p>2. The opinion of a witness as to the quantity of the goods burned, formed from an inspection of the debris, is inadmissible.</p> <p>3. The court may, in its discretion, confine counsel within reasonable limits in the cross-examination of witnesses.</p> <p>4. In the case presented, certain inadvertent remarks of the trial judge in ruling upon objections, did not operate to the injury of the appellant and do not constitute such error as to require a reversal.</p> <p>5. It is a matter of discretion with the court to give instructions cautioning the jury against prejudice toward one party, or favor to the other.</p> <p>6. Appellant can not complain of the refusal of the court to give instructions asked, when every material issue in the case was fully and properly submitted to the jury by instructions prepared by the court,</p>

<p>Appeal from the Superior Court of Cook County; the Hon. John P. Altoeld-, Judge, presiding.</p>

<p>Bailroads — Injury at Highway Crossing — Evidence—Instructions.</p> <p>In an action against a railroad company to recover damages for injuries to himself and to his horse and wagon at a highway crossing, this court affirms the judgment of the court below, the verdict being fairly supported by the evidence and there being no substantial error committed by the court.</p>

<p>Personal Injuries — Street Railway — Death of Child —A etion for Damages — Questions for Jury — Negligence—When not Imputed to Parent.</p> <p>1. In an action against a street railway company to recover damages for' causing the death of a child, it is held: That the court properly overruled a motion to instruct the jury to find for the defendant; and that the questions whether the deceased was in the exercise of reasonable care and whether the defendant was guilty of negligence, were for the jury.</p> <p>2 It is ordinarily a question for the jury whether, under the circumstances of the particular case, a failure to stop until the view is clear and look for an approaching train is such negligence as should defeat a recovery.</p> <p>8. Where the child injured is in the exercise of ordinary care the question whether the parent was negligent does not arise.</p> <p>4. Where the evidence is sharply conflicting this court will not interfere with the verdict of the jury.</p>

<p>Administration — Personal Property — Rights of Widow — Mutual Benefit Certificates.</p> <p>Upon the death of a husband leaving no child or children or descendants of a child or children, the widow is entitled to the entire proceeds of mutual benefit certificates payable “ to the heirs at law” of the deceased.</p>

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

Henry M. Shepard, Judge, presiding. This was a bill in chancery brought February 25, 1886, by appellees, composing the firm of Handy & Company, who were engaged in the business of keeping an abstract office and furnishing to customers and patrons, for hire or reward, abstracts of title to real estate situate in the county of Cook, against the appellant Scribner and the other appellants comprising the individual members of the board of county commissioners in and for said…

Hollín S. Williamson, Judge, presiding. This was an action by the appellee against the village corporation, appellant, to recover for a personal injury to the former, while traveling on the sidewalk along St. Charles Avenue after dark December 2, 1885, occasioned by the sudden tipping of a loose plank of a defectively constructed crossing over a ditch at the intersection of said street with Center Street in said village.

John P. Altgeld, Judge, presiding. This action was brought to recover against appellants for levying on a certain stock of goods which was in the possession of appellee at Peshtigo, in Wisconsin. The levy was made and the goods seized by McGillis as sheriff of Marinette Comity, under attachment writs from the Circuit Court of said county against Ferdinand Armstrong, one of the writs being in favor of King and his partners. The declaration contained two counts.

Henry M. Shepard, Judge, presiding. Appellee recovered a judgment against the appellant, and, after the return of an execution no property found, a creditor’s bill was filed against appellant, and such proceedings were had that a receiver was appointed and appellant ordered to execute an assignment to said receiver of his property.

<p>Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding,</p>

<p>Insurance — Mistake of Law — •Estoppel—Practice.</p> <p>In an action involving the right of the plaintiff to recover on a policy of fire insurance, the Supreme Court having reversed the judgment on the ground that this court had failed to certify whether a subsequent policy was issued in lieu of the policy in question, it is held: That said subsequent policy was not so issued; that the defendant issued said policy and paid the loss thereunder to a third person claiming under a fraudulent sale under a mistake of law; and that a decree settling the rights of the plaintiff and such third person, furnishes no element of estoppel that can be invoked by the defendant in this action.</p>

Elliott Anthony, Judge, presiding. A judgment in forcible entry and detainer against appellant and in favor of appellee was entered in the Superior Court by confession and without the issuing or serving of process.

<p>Appeal from the Superior Court of Oook County; the lion. Kirk Hawes, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook County; the Eton. Lorin C. Collins, Judge, presiding.</p>

Borin C. Collins, Judge, presiding. Prior to August 29,1883, the Board of Trade of the City of Chicago, permitted the agents of the Western Union Telegraph Company and other telegraph companies to have access to the floor of its exchange room for the purpose of collecting the market quotations of grain, provisions, etc. Wires were connected with the exchange room and the quotations thus secured were sent therefrom by the operators of the telegraph companies to all their…

Lobih C. Colliks, Judge, presiding. Appellees filed their bill of complaint on which a preliminary injunction was granted.

Kirk Hawes, Judge, presiding. This is an action on the case brought by plaintiff in error against defendant in error, to recover damages for the publication of an alleged libel by defendants. A general demurrer to the declaration was sustained and judgment for costs entered against plaintiff, to reverse which he sued out this writ of error.

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

<p>Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. Action of assumpsit on guaranty brought by defendants in error against plaintiff in error. The note and guaranty thereon were as follows t $650. Chicago, February 26, 1880. a Six months after date I promise to pay to the order of D. H. Tolman & Co., six hundred and fifty dollars, payable at their office, value received, with interest at 8 per cent, per annum.

Ebbob to the Superior Court of Cook County; the Hon. Gwxnn Gabnett, Judge, presiding.

Gwtnn Garnett, Judge, presiding. Plaintiffs in error filed their petition for a mechanic’s lien substantially as follows: Petitioners, Patrick J. Doyle and E. J. Goodwillie, are partners, doing business under the firm name of P. J. Doyle & Co., and dealers in lumber and other building material in the city of Chicago.

John J?. Altgeld, Judge, presiding. This was an action by appellee, Thomas, against the milling company, appellant, to recover for a personal injury to the former, sustained October 4,1884, while employed as shipping clerk at appellant’s mill, and being precipitated from the second to the basement floor of said mill while in the act of descending from an upper floor thereof by means of an elevator which ran away with him, by reason, as it is alleged; of the machinery and…

<p>Appeal from the Circuit Court of Cook County; the lion. Richard S. Tuthill, Judge, presiding.</p>

<p>Sealed Instruments — Parol Authority to Fill Blanhs — Agency—Landlord and Tenant.</p> <p>1. Parol authority to fill blanks in a sealed instrument is adequate for that purpose.</p> <p>2. The insertion in a lease of the number of the house intended to be demised is proper, although by parol authority.</p>

Thomas A. Moran, Judge, presiding. This is a bill in equity filed August 12, 1882, by plaintiff in error against William W. Strong, Philo Carpenter and Amos J. Snell, alleging that on February 15, 1878, complainant was the owner of the west 80 feet of lot 29 in McNeill’s re-subdivision of lots 16, 17, etc., of McNeill’s subdivision of lots 6, 7 and 8 in Wright’s addition to Chicago; that William W. Strong represented to complainant that he was the owner of the remaining part…

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

<p>Assignment — Distribution—Right of Secured Creditors to Dividends — • Sale of Collaterals without Prejudice.</p> <p>1. Upon the distribution of an estate under an assignment creditors who held collateral security are entitled to share equally with unsecured creditors in any and all dividends paid.</p> <p>2. Where a holder of collaterals has converted them into cash on the faith of an order of court that he might do so without prejudice, his rights are not thereby affected, the court having no power to require him to make the change.</p>

Ik eeeoe to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding. This was an action on a replevin bond executed by defendants in error in behalf of Simon Auerbach & Company. The breach of the bond alleged in the declaration was that the suit was dismissed and retorno hdbendo ordered, and that the tobacco, which had been taken, had not been returned.

<p>Appeal from the Circuit Court of Cook County; the Hon. C. C. Boggs, Judge, presiding.</p>

John P. Altgeld, Judge, presiding. This was an action of trover by appellees against appellants to recover for an alleged wrongful conversion by the latter of a quantity of jewelry, the goods, etc., of the former. Upon a trial, under the general issue, the appellees had judgment upon a verdict for §891.50 damages, besides costs, from which the defendants took this appeal.

<p>Assignment — Confession of Judgment — Validity of — Jurisdiction—Appeals from County Court.</p> <p>1. .Upon appeal from a decretal order of the County Court in the matter of an assignment, this court holds that the evidence sustains the finding of the court below that the insolvent had formed the determination and was preparing to make the assignment when he gave the notes and warrants of attorney on which judgments were confessed.</p> <p>2. An appeal lies to this court from the County Court.</p>

Joseph E. Gaby, Judge, presiding. This suit was brought by Young against Kendall to recover 81,000 paid the latter on a contract in writing, dated November 15, 1885, by the terms of which appellant was to sell to appellee a stock of goods and fixtures then in a store at Topeka, Kansas, and in the rvords of the contract the same “to be invoiced at cost and as agreed upon (see estimate on show cases, stools, safe, stove, mirrors, viz., 8747.09),” for which appellee was to pay…

<p>Trust Deed — Equitable Assignment — Foreclosure—Defect of Parties— Practice — Estoppel.</p> <p>1. The delivery, without a written assignment, of an agreement and trust deed to a third person who has paid the sum secured thereby, at the request of the grantor in the deed, constitutes such third person the equitable assignee thereof and entitles him to maintain a bill for foreclosure.</p> <p>2. A bill should not be dismissed for want of equity, where there is merely a defect of parties.</p> <p>3. In the case presented, it is held: That the court below should have directed an amendment to the bill so as to make others, who made advances, parties complainant, and the assignor of the agreement and trust deed a party defendant; that the bill should have contained an allegation that the complainant had elected to declare the whole amount secured by the trust deed due; and that the court below improperly dismissed the bill for want of equity.</p>

<p>Carriers — Failure to Deliver Goods — Action for Damages — Liability—■ Termination of — Seizure by Customs Officers — Damages—Whether Excessive.</p> <p>In an action against a steamship company to recover damages for the fiiilure of the defendant to carry a certain box of goods from Hamburg to New York and deliver the same to the plaintiff, it is held,: That it was the duty of the defendant to deliver the goods at New York to the plaintiff; that its liability as a common carrier continued for a reasonable time to enable the plaintiff to claim and take possession of her goods; that there was no want of diligence on her part; that npon the defendant’s theory of the facts the seizure by the customs officers resulted from the wrongful act of a mere intruder before the termination of the defendant’s liability as a common carrier; (hat this court can not set aside the verdict as excessive, the evidence being conflicting and two juries having reached substantially the same result.</p>

Johu P. Altgeld, Judge, presiding. This was am action upon the common counts for money had and received, brought by appellees, Mathewson and Haidle, who were engaged in farming and stock business at Stanton, Nebraska, against appellant Hunter, who was engaged as a live stock commission merchant at the Union Stock Yards, Chicago, to recover the sum of §1,311.69, as part of the proceeds of certain live stock shipped May 2, 1885, by one C. Abrams, by rail, from.

Loiíin C. Collins, Judge, presiding. This case was formerly before this court, and the judgment of the court below reversed and remanded, because there was error in sustaining a demurrer to the 10th count of the plaintiffs’ declaration. The decision in that case is reported in 7 Ill. App. 438. On the reducketing of the case in the court below the demurrer to that count was overruled.

<p>Appeal from the Circuit Court of Cook County; the Hon. Abba FT. Wateeman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. This is an appeal from the judgment of the court below sustaining a demurrer to and dismissing the petition of appellants against the appellee, the City of Chicago, for a mandamus to compel the latter to lower or cause to* be lowered a portion of the sidewalk on the west side of Rush Street, between Illinois and Michigan Streets, in said city, down to an alleged established grade.

Joseph E. Gary, Judge, presiding. ' This was an action of assumpsit brought by appellants against appellee to recover damages for the non-performance by the latter of an alleged contract for the sale of certain shares of the stock of the North Chicago City Bail way Company. The declaration originally contained eight counts; but the plaintiffs having dismissed as to' all but the fifth, seventh and eighth counts, those three alone are in question.

Egbert Jamiesoh, Judge, presiding. Bill in equity filed by appellees against appellant and Josef Matousek, praying that a deed of trust which was executed by complainants to Matousek, conveying to him a certain lot in Chicago, to secure a loan of §500, may be declared a cloud on complainants’ title to said lot; that the trust deed and the notes secured thereby may he delivered up to be canceled.

Inerrob to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.

Richard S. Tuthill, Judge, presiding. Suit in assumpsit by defendants in error against plaintiff in error.

<p>Appeal from the Circuit Court of Cook County; the Hon. Bichabd W. Clifford, Judge, presiding.</p>

<p>Appeal and Error — Final Judgment.</p> <p>A final judgment is one that puts an end to the action so that nothing remains to be done except to execute the judgment.</p>

<p>Insolvency — Authority of County Court to Authorize Sales — Adverse Claims — Option to Purchase Real Estate — Assignment of.</p> <p>1. The County Court can not be required to try and determine intricate and conflicting claims to property before authorizing the assignee of an insolvent to sell whatever interest the 'estate possesses therein.</p> <p>2. What to order the assignee to dispose of is within the discretion of the County Court. In the case presented this discretion has not been abused, the orders in question being for the sale of an option to purchase certain real estate.</p>

<p>Forcible Entry and Detainer — Title.</p> <p>In an action of forcible entry and detainer inquiry can not be made into the title of the premises in question. Hence it is no defense that the defendant entered without any actual force or breach of the peace under claim of an adverse title.</p>

<p>Penal Statutes — Construction—Ordinance.</p> <p>Where general words in a penal statute follow an enumeration of particular eases, such words are held to apply only to cases of the same kind as those expressly mentioned.</p>

Elliott Anthony, Judge, presiding. Assumpsit by appellant against appellee on three checks drawn in September, 1883, by J. B. Snyder, then a banker at Chenoa, Illinois. They were as follows: September 10, 1883, §1,000; September 17, 1883, §1,200; and September 17? 1883, §1,600. The three checks were exactly alike, except as to dates and amounts.

<p>Appeal from the Superior Court of Cook County; the Hon. Kiek Hawes, Judge, presiding.</p>

<p>Injunctions — Dissolution—Damages—Appeal—Record.</p> <p>A judgment for damages assessed on the dissolution of an injunction, can not be supported on appeal, unless the evidence authorizing it is preserved in the record.</p>

<p>Pleading — Mutual Accident Association — Action on Certificate of Membership — Declaration—Sufficiency of — Uncertainty—Demurrer.</p> <p>1. A copy of an instrument is no part of the declaration to which it is attached.</p> <p>2. In an action on a certificate of membership in a mutual accident association, it is held: That the demurrer to the declaration, containing the common counts, was improperly sustained; that allegations in two of the special counts that the membership in the association was sufficient, to make the amount named in the certificate by the payment of two dollars each, reduced to certainty that which would have been uncertain; and that the special counts are sufficient.</p>

Elliott Anthony, Judge, presiding. This was an action by plaintiffs in error against the defendants in error to recover for commissions alleged to have been earned by the plaintiffs while acting as brokers, within the corporate limits of the city of Chicago, for the defendants, in the purchase of certain mining stocks. The defendants filed the plea of the general issue and affidavit of merits, also a special plea, to which the plaintiffs interposed a demurrer.

<p>Appeal from the Superior Court df Cook County; the Hon. Egbert Jamieson, Judge, presiding.</p>

In errob to the Superior Court of Cook County; the Hon., John P. Altgeld, Judge, presiding. This was a suit brought by Schiller as assignee against Welling as maker of a promissory note bearing date March 13, 1886, whereby the latter promised to pay to Albert Schenbeck the sum of $500 ninety days after date, with interest. The defendant pleaded the general issue and two special pleas.

<p>Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

Mueeay F. Tulby, Judge, presiding. In 1874, David A. Gage filed his bill in the Circuit Court of Cook County against the Riverside Improvement Company, Joshua C. Sanders, Henry E. Seelye and others, praying that a release of a trust deed to Henry Greenebaum might be set aside, the trust deed foreclosed and for other relief. Sanders being the holder of 195 bonds secured by a subsequent trust deed to John FT.

Pichard Peeítdeegast, Judge, presiding. The appellant, a citizen of Illinois, was appointed receiver of the partnership) estate of Mershon & Bancroft, also citizens of Illinois, by the Superior Court of Cook County, December 17, 1887. Among the assets coming into the hands of the receiver was a valid claim for abont $2,500 against the Mew Haven Wire Company, a corporation organized under the laws of Connecticut.

<p>Tax Sales — Precept—Sec. 194, Chap. 120, B. S. — Equity—Jurisdiction — Practice.</p> <p>1. A sale of lands for taxes is invalid unless the county clerk has made the certificate to be entered of record as required by Sec. 194, Chap. 120, E. S. To make the sale valid there must be a valid precept.</p> <p>2. Where a tax certificate has been issued on an illegal sale of land for faxes, a court of equity has jurisdiction of a bill to remove the cloud on the title.</p> <p>3. An offer in the bill to pay whatever moneys, taxes and interest equity may require, is a sufficient offer to do equity.</p> <p>4. Upon the remanding of the cause the court below may deal with deeds issued on the certificates in question pending this proceeding. Such deeds are of no higher validity than the certificates.</p>

<p>Practice — Appeal from Justice — Affidavit of Merits — When to he Filed.</p> <p>Where an action, commenced before a justice with an affidavit of claim, is appealed to the Circuit Court, the defendant is not required to file an affidavit of merits until the cause is reached for trial.</p>

Kirk Hawes, Judge, presiding. This is an appeal from a judgment rendered against appellant and in favor of appellee, for certain regulators alleged to have been manufactured by appellee «for… Held: among others, the two following propositions of law, which the court refused : “ Proposition No. 3.

<p>Trust Deed — Foreclosure—Building Association — Defective Organization — Estoppel—Attorney's Fees»</p> <p>1. Where there has been an attempt made in good faith to organize a loan and building association under the laws of this State, and the association has done business as a corporation, one who has borrowed money from, it as a corporation defacto, can not setup its defective organization by way of defense to a bill for the foreclosure of a trust deed given to secure the p íyment of the money borrowed.</p> <p>2. A provision in a trust deed authorizing the payment of attorney’s fees in case of a foreclosure by the trustee, does not sustain a decree including attorney’s fees upon a bill filed by the cestui que trust,</p>

<p>Divorce — Cruelty—Bill—Allegations—Sufficiency of.</p> <p>It is sufficient in a bill for divorce for extreme and repeated cruelty, to make such allegations as will admit the proof of cruelty and of at least two distinct acts of personal violence. Such distinct acts may be alleged as occurring on the same day.</p>

<p>Appeal from the Superior Court of Coolc County; the Hon. Henry M. Shepard, Judge, presiding,</p>

<p>In error to the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. This is an action by appellant against appellee to recover damages for continuing and maintaining a certain dam by appellee on his land, by reason of which, it is alleged, the surface waters and watercourses flowed therefrom out of their natural courses upon land of appellant, injuring his orchard, land and barn, and interfering with his business of farming.

<p>Fire Insurance — Conditions—Fall of Part of Building■ — Forfeiture— Strict Construction — Agency—Condition as Jo Title — Leasehold—Instruc- ' tions.</p> <p>1. A condition in a policy of insurance providing for a forfeiture in case of the fall of the building insured, will not be construed as working a forfeiture upon the fall of a part of the building.</p> <p>2. Where the building insured is on leased land, a failure to disclose such fact will work a forfeiture under a condition requiring it to be written in the policy.</p> <p>3. In the case presented, the broker who procured the insurance in question acted as the agent of the assured. The mere delivery of the policy and payment to him of a commission did not constitute him the agent of the defendant.</p> <p>4. The employment of an adjuster by the defendant before it knew the plaintiff's title was not a waiver of' the condition as to title.</p> <p>5. It is improper to submit an instruction touching a point upon which no evidence was introduced.</p>

<p>Fire Insurance — ■Conditions—Fall of Part of Building — Forfeiture— A gency —Instructions.</p> <p>1. In an action on a policy of fire insurance, it is held: That the question whether the policy was revived or continued in force after a forfeiture, is unimportant, the defendant having failed to charge the defendant with notice of such facts as would prevent a forfeiture under the condition as to title; and that the broker who procured the insurance in question acted as the agent of the assured.</p> <p>2. It is improper to submit an instruction touching a point upon ^liich no evidence was introduced.</p>

<p>Sales — Safe—Rescission—Rotice—Instruction.</p> <p>In an action to recover the contract price of a safe, wherein the defendant contends that the door was so defective as .to render the safe useless, this court holds that an instruction based upon this hypothesis but ignoring the question of notice and the contention of the plaintiff that the defendant failed to close the door properly, was improperly given.</p>

Biohabd S. Tuthill, Judge, presiding. March 30, 1887, appellant and one James O’Donnell, as co-partners, brought suit before Peter Foote, a justice of the peace, against appellee; the summons was made returnable April 11,1887, at 9 o’clock a. m. At 10 o’clock on April lltli, the return day of the summons, the case was called by the justice and continued until April 18th, at 9 o’clock a. m. It does not appear that either of the parties appeared or were present at the time of…

<p>"Mechanic's Lien — Architect's Certificates — Defective Bill — Evidence— Improper Admission of — Secondary Evidence.</p> <p>1. Where a contract for labor and materials to be used in the erection of a building requires a certificate from the architect before each installment becomes due, a bill for a mechanic’s lien can not be maintained, unless it appears that such stipulation has been complied with, waived or excused in some manner recognized by law.</p> <p>2. In the case presented, in the absence of any allegation that the architect ever issued or refused to issue the certificates required, or statement of any matter of excuse for failure to secure such certificates, the evidence touching the question was improperly admitted.</p>

Richabd S. Tuthill, Judge, presiding. Bill in equity, filed by appellees, praying specific performance of an oral agreement made by Edward W. Morrison with. appellees for a lease of the store and basement of premises known as number 115 Madison street, and basement of number 113, Chicago, for a term of five years. Morrison’s answer denies making the agreement, and sets up the statute of frauds.

<p>Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

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

<p>Collateral Security — Tower of Sale — ‘‘Depreciation''''-—Fraud—Subrogation — Agency.</p> <p>1. A power conferred upon a party adverse in interest, or upon a third person who acts at the instance of such party, must be strictly pursued.</p> <p>2. The fact that collateral securities are not what they purport to be, but are of less value and in part fraudulent, does not justify a sale under a power authorizing a sale upon their depreciation in value.</p> <p>3. In the case presented, it is held: That the power of sale only applied to events then in the future; that the fraud in question did not enlarge the power; that the sale was unauthorized; and that the utmost claim of the purchaser is to be subrogated to the position of the vendor, holding the policy of insurance as security for the payment of the original indebtedness.</p>

Murray F. Tuley, Judge, presiding. Appeal from a decree of the Circuit Court of Cook County, dismissing appellant’s hill for an injunction. The main facts in the case are as follows: The Metropolitan Gas Company of Hyde Park became incorporated by that name under the general incorporation laws of the State, June 20, 1882, with a capital stock of §500,000, divided into five thousand shares of §100 each, the location of its principal offices being Hyde Park, in Cook County.

<p>Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.</p>

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

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

<p>Personal Injuries — Next of Kin — Damages for Widow’s Sorrow.</p> <p>In action by a widow to recover damages from a street railway company for causing the death of her husband, it is held: That, to sustain the verdict for the plaintiff, the record should show who were the next of kin, and whether the death of deceased was a financial loss to any of his family; and that an instruction touching the allowance of damages for the plaintiff’s sorrow was erroneous.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. ¡Richard S. Tuthill, Judge, presiding.</p>

<p>Appeal from the Supreme Court of Cook County; the Hon_ Elliott Anthony, Judge, presiding.</p>

Kirk Hawes, Judge, presiding. Appellant was the owner of a. meat packing house in January, 1885, where appellee, who was in the retail butcher business, and others, were in the habit of resorting to buy meats for their trade. On January 27th of that year, between three and five o’clock p. h., appellee called at said packing house to purchase meats in the usual course of his business.

Johet P. Altgeld, Judge, presiding. This was an action for slander, and the declaration was as follows: “ In the Superior Court, September Term, 1886. ‘‘ State of Illinois, 1 gg County of Cook, j s “ Louisa Murphy, plaintiff, by John M. Beverly, her attorney, complains of Mrs. Lelia P. Boby, defendant, of a plea of trespass on the case; for that, whereas, the plaintiff, before and at the time of the committing by the defendant of the several grievances hereinafter mentioned,…

<p>Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.</p>

<p>Mandamus — Railroads—Discontinuance of Switch Connection — Coal Mine — Constitutional and Statutory Provisions.</p> <p>1. A railroad company can not discontinue an established switch connection with a coal mine merely because the cars of another company may-.be taken upon its line over such switch, thereby endangering its property and the lives of its passengers and employes.</p> <p>2. Where a switch connection has been so discontinued a petition for mandamus lies to compel its restoration.</p>

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

<p>Pharmacy Act — Liability of One in Charge of Drug Store — Sec 12.</p> <p>1. Where a registered pharmacist is employed and placed in charge of a drug store, he becomes personally liable for the statutory penalty if he permits one who is not a registered pharmacist as assistant to vend drugs, medicines or poisons in his store.</p> <p>2. An instruction to a boy, to sell anything in a drug store except poisons, leaving him to judge what are poisons, is a violation of the statute.</p>

<p>Practice — Defective Record — Motion for Neiv Trial — Clerk's Statements</p> <p>1. Where the bill of exceptions contains no motion for a new trial, and no exception is preserved to the overruling of such a motion, an assignment of error that the court erred in refusing a new trial on the ground that the verdict was contrary to the evidence, can not be considered by this court.</p> <p>2. A statement in the judgment order, as copied by the clerk into the record, to the effect that the motion for a new trial was overruled and a new trial denied, does not make such motion a part of the record.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Gwynn Gabnett, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon Henry M. Shepard, Judge, presiding.</p>

<p>Brokers — Sale of Real Estate — Commissions—Defective Instruction.</p> <p>1. Where real estate is placed in the hands of a broker with instructions to sell at a given price and through his instrumentality a party is brought into negotiation with the owner and a sale is in consequence effected by the owner, the broker is entitled to commissions.</p> <p>2. It is sufficient to entitle the broker to compensation that the sale is effected through his agency as a procuring cause.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, J udge, presiding.</p>

<p>Injunctions — Dissolution—Damages—Rent—Solicitor's Fees.</p> <p>1. Upon .the dissolution of an injunction restraining the prosecution of certain suits before a justice to recover rent, it is improper to assess as damages the amount of rent involved in such suits, unless it appears from the evidence that such rent became lost by reason of the injunction,</p> <p>2. Upon the dissolution of an injunction the opinion of an attorney as to the reasonable value of his services, is an insufficient basis for an allowance for solicitor’s fees. Only the usual and customary fee paid, or for the payment-of which the defendant has become liable, should be allowed.</p>

•Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.

<p>Railroads — Action.to Recover Damages for Cattsing Death — Viaduct— Repairs — Instructions—Rules—Questions for Jury — Requests for Specia l Findings — “ Material ” Questions.</p> <p>1. In an action against a railroad company to recover damages for causing the death of a workman while he was engaged in repairing a viaduct over the defendant’s track, it is held.: That certain instructions were properly refused; and that the defendant had no right to run its trains at any rate of speed, at the point and time in question, without warning to those rightfully engaged in repairing said viaduct.</p> <p>2. It is for the jury to say what conduct, or what acts, constitute care or its opposite. Therefore, answers to requests for special findings as to special acts without finding as to the ultimate facts of care or negligence, are merely surplusage.</p> <p>3. Requests for special findings which require the jury to answer merely as to acts or omissions which may or may not, in their opinion, be evidence ef care or negligence, and from their answers to which, either way, the court can not say as matter of law whether care or negligence is the result, are not material within the meaning of the statute.</p> <p>4. It is the sole province of the jury to determine the weight of evidence and to consider conflicting evidence, without assistance from the court.</p> <p>5. It is proper to refuse an instruction to the effect that positive evidence as to the occurrence of a fact is entitled to greater weight than negative evidence regarding it.</p> <p>6. It is proper to refuse an instruction which, in effect, tells the jury to believe the witnesses for one party and to disbelieve those of the other party to the case on trial.</p> <p>7. An instruction touching an irrevelant matter should be refused.</p> <p>8. It is proper to refuse an instruction which correctly states a rule of law applicable to the case, which finds appropriate expression in other instructions given.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.</p>

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

<p>Practice — Appeal—Dismissal—Section 67, Practice Act.</p> <p>Complaint of irregularity by the Circuit Court in’ dismissing an appeal from a justice for want of prosecution, is too late when made at a subsequent term.</p>

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

<p>Appeal from the Circuit Court of Carroll County; the Hon. William Brown, Judge, presiding.</p>

<p>Attachment — Clause 6, See. 1, Chap. 11, S. S. — Only Intention of Grantor, Material — Instruction.</p> <p>1. Upon the trial of an attachment issue, tmder Clanse 6, Sec. 2, Chap. 11, R. S.. it need not appear that the grantee participated in the fraudulent intent of the grantor to hinder or delay his creditors.</p> <p>2. Where only the interests of the grantor are involved, only his intention is material.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tut hill, Judge, presiding.</p>

<p>Appeal from the Circuit- Court of Cook County; the Hon. Abba N. Waterman, Judge, presiding.</p>

Kirk Hawes, Judge, presiding. This was an action of trespass on the case by appellee against appellants and Adolph Mueller and Henry Mueller to recover damages for overloading and breaking down plaintiff’s building while defendants were her tenants. The plaintiff was owner of a building numbered 20 and 22 South Desplaines street, Chicago, fronting west, thirty-four feet wide and 160 feet deep.

<p>Restraint of Trade — Agreement—Liquidated Damages — Question for Jury.</p> <p>An agreement for liquidated damages for the breach of a condition in a contract of sale of a business that the vendor will not open a similar business within a certain distance and within a certain time, will be enforced unless it appears that the amount named is oppressive and unjust.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. The record in this case shows a suit commenced by service of summons, a declaration on a promissory note, an appearance by the plaintiff in error, and, on February 3, 1885, a petition in regular form by said plaintiffs in error for the removal of the case to the United States Circuit Court for the Northern District of Illinois.

<p>Appeal from the Superior Court of Cook County; the Hon. Gwynn Garnett, Judge, presiding.</p>

<p>Divorce — Questions for Jury — Newly Discovered Evidence — Practice— Abstracts — Instructions.</p> <p>1. This court declines to discuss the instructions in detail, the appellant having failed to include them in the abstract.</p> <p>2. Upon appeal from a decree granting a divorce, it is held: That the court properly refused to admit evidence touching a defense not made in the answer; and that the defendant is not entitled to a new trial on the ground of newly discovered evidence.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.</p>

<p>Failure to Send Telegram — Action for Damages — Questions for Jury-Practice.</p> <p>In an action against a telegraph company to recover damages for a failure to send a telegram, it is held: That the question whether the plaintiff assented to a printed clause on the blank used, requiring claims for damages to be presented within sixty days, and whether the claim was presented within the time so limited, were for the jury; and that, although the verdict appears to be excessive, this court can not reverse on that ground as the question was not raised in the court below.</p>

<p>Practice — Dismissal of Appeal — Motion to Set Aside Order — Insufficient Affidavit — Practice.</p> <p>1. This court affirms an order denying a motion to set aside an order dismissing an appeal from a justice of the peace for want of prosecution, the affidavit in support of such motion being merely upon information and to the effect that the appellant's attorney was ill and had been for a long time unable to attend to business, at the time of such dismissal.</p> <p>2. The showing made in support of a motion to set aside an order dismissing an appeal for want of prosecution, will be strictly scrutinized.</p>

<p>Mechanic's Lien — Contracts—Parties—Husband and Wife — Agency.</p> <p>Upon appeal from a decree for a mechanic’s lien, it is held: That it may b; fairly inferred from the evidence that the appellant, the owner of the premises, and her husband, made one of the contracts in question, and that the husband acting as the wife’s agent made the other of said contracts.</p>

<p>Conspiracy — False Pretenses — False BooVkeeping and Beports — “ Obtain ” — PetialLaws—Strict Construction — Want of Prosecution — Criminal Code, Starr <& C. III. Stat. If 498 — Jurisdiction—Practice.</p> <p>1. False bookkeeping and false reports to conceal an embezzlement will not. support a charge of conspiracy to obtain money by false pretenses.</p> <p>2. The word “ obtain ” is not used in the statute as synonymous with Ihe word “ retain.”</p> <p>3. Penal laws are strictly construed. The law regards primary or proximate, not secondary or remote causes.</p> <p>4. The term at which the accused is committed is not regarded as the first term under the statute providing for a discharge for want, of prosecution. Where the defendant is on bail, it will be presumed that the case was continued at a subsequent term or terms by mutual consent, unless the record shows that he appeared and demanded trial.</p> <p>5. This court will not consider a suggestion that it is without jurisdiction of an appeal where the case has been presented on the merits by briefs on both sides.</p>

<p>Practice — Dismissal of Appeal — Act Jmie lá, 1887 — Taxation of Costs —Time.</p> <p>Upon the dismissal of an appeal under the act of June 14, 1887, this court may allow as part of the costs a reasonable solicitor’s fee; and where such dismissal is in vacation, the allowance may be made at the ensuing term.</p>

<p>Landlord and Tenant — Cancellation and ¡Surrender of Lease — Question for Jury — Destruction of Premises by Fire.</p> <p>In an action by a tenant to recover rent from sub-tenants, it is held : That the question whether there was an agreement for the cancellation and surrender of the lease was a question for the jury, and that there was no such destruction of the rooms leased by defendants as would operate to determine the lease, even if their destruction would have that effect.</p>

<p>Parties — Action "by Attorney to Recover Fees — Pa¡ tnership.</p> <p>In an action to recover fees for legal services, this court affirms Ihe judgment for the plaintiff, although it appears that he had a partner when the services in question were rendered, there being nothing to show that the latter was to share in the compensation for s.uch services.</p>

<p>Appeal from the Superior Court of Cook County; the Horn. Kirk Hawes, Judge, presiding.</p>

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

Elliott Anthony, Judge, presiding. This was an action by appellee against appellant for false imprisonment and malicious prosecution.

<p>Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.</p>

Joseph E. Gaby, Judge, presiding. Appellee brought an action on the case against appellant, in the court below, to recover for a personal injury sustained by him by being run over by a street car owned by appellant, and operated by it on North Clark street, in the city of Chicago. The declaration as amended contained three counts.

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

Elliott Anthony, Judge, presiding. In the latter part of 1885 or the early part of 1886, appellants, dealers in hides, tallow, etc., at 131 and 133 East Kinzie Street, Chicago, sold to James Smibert 227 hides and received from him payment therefor. The purchaser not wishing to remove the hides at that time, it was arranged that they should remain at appellants’ above named place of business a few days.

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

<p>Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, J udge, presiding.</p>

<p>Banks — Action on Checks — Revieiv of Evidence — Presentation for Payment — Stoppage of Payment.</p> <p>1. In an action on a check drawn on the defendant bank in favor of a third party and by him deposited in the plaintiff bank in the usual course of business, after the defendant had refused to certify it, upon a review of the evidence, it is held: That the defendant was in funds with which to pay the check when it was presented; and that certain drafts and a letter of credit were then treated by the defendant as being to the credit of the drawer.</p> <p>2. It seems that the presentation of the check to the defendant’s cashier before the opening of the bank and his statement that payment had been stopped and that it would not be paid if tendered for payment, rendered further presentation unnecessary, the rights of the parties being fixed by the condition of the drawer’s account at that time.</p>

Oliver H. Horton, Judge, presiding. This is a bill in equity filed by Frederick H. Winston, under Sec. 25, Chap. 32, E. S., to wind up the Dorsett Pipe and Paving Company, a corporation for pecuniary profit, organized in 1881, in pursuance of said chapter 32.

<p>Statute of Frauds — Consideration—Promise not to Attach — Agency— Admissions of Agent — Practice—Appeal from Justice — Non-joinder of cs Defendant — ■Instructions—Decisions of Supreme Court.</p> <p>1. A promise not to attach the property of a third person, where no ground of attachment exists, is not a consideration for a promise to pay an indebtedness of such third person.</p> <p>2. The principal is not bound by the statements of an agent, unless they constitute part of the business in question.</p> <p>3. Where the decisions of the Supreme Court are conflicting, this court is bound by the latest of them.</p> <p>4. The non-joinder of one of the defendants in the Circuit Court, on appeal from a justice, can not be assigned for error after a trial on the merits without objection to such non-joinder.</p>

<p>Gaming — Action to Recover Money Lost — Sees. 130 and 132, Criminal Code — Chance.</p> <p>1. The loser of money lost in such gaming as is prohibited by Sec. 130, Criminal Code, may maintain an action for its recovery.</p> <p>2. Traffic in differences which are determined by chance is gaming within the meaning of Sec. 130, Criminal Code.</p>

<p>Appeal from the County Court of Cook County; the Hon. ■Biohabd Pbendebgast, Judge, presiding.</p>

Murray F. Tdxey, Judge, presiding. Appellant brought its action in the Circuit Court against appellee and filed its declaration as follows, viz.: “ First Count — And the said plaintiff, by H. Washburn, its attorney, comes and complains of John W. Enright and Edward F. Kelly, defendants, in its action of debt. “For that whereas the plaintiff is a municipal corporation of tlie State of Illinois, organized under an act entitled ‘ An act to provide for the incorporation of…

<p>Appeal from the County Court of Cook County; the Hon. Eiohabd Prerdeegast, Judge, presiding.</p>

<p>Action to Recover for Services — Evidence—Contracts—Misnomer—Conflict of Evidence — Question for Jury.</p> <p>1. This court sustains the action of the court below in admitting in evidence certain contracts, it being plain from the entire record that they were with the defendant corporation, although they describe it by a different name than that by which it is sued.</p> <p>2. That the evidence is not only contradictory but unsatisfactory, this court being unable certainly to discover the process by which the jury reached their conclusion, does not justify an interference with the verdict.</p>

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

<p>Appeal from the Superior Court of Cook County; the Hon. Joseph Gary, Judge, presiding.</p>

<p>Landlord and Tenant — Termination of Lease by Notice — Forcible Detainer — Action for Bent.</p> <p>1. Where a lease has been terminated by notice and an action of forcible detainer successfully prosecuted, the landlord can not maintain an action for installments of rent which would have become due had the lease continued in force.</p> <p>2. In the case presented, the covenant to pay rent did not continue in force after the lease was terminated by notice and pending the action of forcible detainer.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Oliver. H. Horton, Judge, presiding.</p>

<p>Appeal from tlie Superior Court of Cook County; the Hon. Gwynn Garnett, Judge, presiding.</p>

John P. Altgbld, Judge, presiding. On August 20, 1882, appellee procured from the Agricultural Insurance Company a policy of insurance for three years, insuring him against loss or damage by fire to the extent of $500 on his frame house at Norwood Park, Illinois, and $500 on his furniture therein, such policy containing a clause prohibiting other insurance, valid or invalid.

<p>Booh Account — Death of Debtor — Admission of Boohs in Evidence— Sec. 3, Chap. 51, R. S.</p> <p>1. A plaintiff who has made the proper preliminary proof may produce bis books of account in evidence in an action against the administratrix of the debtor.</p> <p>2. Testimony of a creditor, in the absence of specific objection, that a certain account book “ was his book account and kept by him,” is sufficient preliminary proof to warrant the introduction of the same in evidence.</p>

<p>Appeal from the Circuit Court of Rock Island County; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Winnebago County; the Hon. William Browh, Judge, presiding.,</p>

<p>Assignment — Fraudulent Conveyance — Bill to Set Aside — Evidence— Acknowledgments.</p> <p>1. An acknowledgment of a deed to which is attached the notary’s seal, without his signature, is insufficient.</p> <p>2. The record of an unacknowledged deed will not be received as evidence of its execution.</p> <p>3. Conveyances can not be proved by parol, nor the execution of a deed by the admissions of persons not first shown to have been in privity with the title under which the grantee claims.</p>

John J. Glenn, Judge, presiding. The facts in this case are, that at the October term, 1886, of the County Court of Warren County, the case was tried bef re a jury and a verdict rendered against appellant, the then defendant, upon which a judgment was rendered on the 9th day of November, 1886, and on that day he prayed an appeal to the Circuit Court, which was “ by the court allowed on filing bond in the sum of $800 in twenty days from this date, the said bond to be approved…

<p>Appeal from the Circuit Court of Winnebago County; the Hon. O. H. Horton, Judge, presiding.</p>

Isaac G. Wilson, Judge, presiding. On Motion to Tax Costs. The defendants in error move the court to tax the costs of the additional abstract made by them to the plaintiff in error. The motion will be overruled.

<p>Sales — Auction—Rescission—Instructions—Improper Question.</p> <p>1. In an action to recover the purchase price of cattle bid off by the defendant at an auction sale, an alleged rescission of the sale being the issue presented, it is improper so to instruct the jury as to throw on the plaintiff the burden of showing that he still keeps the cattle ready for delivery to the defendant.</p> <p>2. An auction sale is not executory, but is completed when the property is knocked down to the purchaser.</p> <p>a. A question calling for the conclusion of the witness is improper.</p>

<p>Bastardy — Evidence.</p> <p>1. In bastardy proceedings evidence tending to prove the poverty of the mother, or that she has named the child after the reputed father, is inadmissible.</p> <p>2. Under the circumstances of the case presented, this court approves the action of the trial court in permitting certain young men to testify that they had never had sexual intercourse with the prosecuting witness.</p>

<p>Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Highways — Drains—Proceedings under Sec. 8, Chap. 121, R. S.— Various Objections — Parties—Validity of Statute — Waiver of Objection— Prescription.</p> <p>1. In proceedings under Sec. 8, Chap. 121, A S., it is not necessary to seek the consent of the owner of land through which the proposed ditch is to be cut where he has shown himself by his acts to be opposed to the same.</p> <p>2. The adjudication of the justice and jury as to the necessity of the drain and the damage done is final.</p> <p>8. The statute allows proceedings to be instituted and carried on for the purpose of carrying off the water from a highway without reference to whether there is a slough or pond therein.</p> <p>4. Where the center of a road is coincident with a town line, and one town has charge of the same by allotment, it may maintain proceedings under the statute in the names of both towns, at least until objection is made by the commissioners of the other town, a private party having no right to object.</p> <p>5. In the case presented the evidence does not show that the proceedings were solely for the benefit of third persons.</p> <p>6. An objection to the validity of a statute is .waived by an appeal to this - court.</p>

<p>Appeal from the Circuit Court of Kane County; the Hon. Isaac Gr. Wilson, Judge, presiding.</p>

<p>/ Sales — Express and Implied Warranties — Fraud—Instructions.</p> <p>1. An instruction having no basis in the evidence is erroneous.</p> <p>2. Where the instructions given ignore the real issues involved in (he case this court will reverse.</p>