Volume 30 — Illinois Appellate Court Reports

Egbert Jamieson, Judge, presiding. Appellant filed its bill in equity, alleging the following facts: In the summer of 1887, Ferdinand E. Halle made two promissory notes, payable to the order of Isidor Cohnfield, for the accommodation of the latter.

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

<p>Pledge of Stock as Security—Dividend—Rights of Pledgee—Renewal of Notes— Pay men t—Aeq uiescence.</p> <p>1. There can be no acquiescence without notice, either actual or constructive.</p> <p>2. A pledgee is entitled to collect dividends on stock held by him. Where such dividends are collected by the pledgor, be holds them as trustee for the pledgee, to whom he must account. This rule applies to an issue of new stock in the nature of a stock dividend.</p> <p>3. The mere change of the form of an indebtedness, collaterally secured, does not release the security, unless such is the intention of the parties.</p> <p>4. Upon a bill filed by the pledgee of stock of a corporation to secure the benefit of certain dividends, including certain new stock, it is held: That the stock was not the property of the wife of the pledgor; that the renewal of the loan from time to time did not release the security; and that the pledgee did not acquiesce in the collection of the dividends by the wife of the pledgor.</p>

Richard S. Tuthill, Judge, presiding. By deed dated November 3, 1875, appellee conveyed to appellant lot 13 in block 1 of Keeney & Rinn’s addition to Evanston, in Cook county, Illinois, subject to an incumbrance of §1,400 then outstanding thereon, represented by a note dated March 28, 1874, payable five years after date, bearing interest at eight per cent, per annum until maturity and ten per cent, thereafter, and to another incumbrance of §1,000.

<p>In error to the Superior Court of Cook County; the lion. Joseph E. Gary, Judge, presiding.</p>

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

<p>Appeal from the Oountv Court of Cook County; the Hon. Bichaed Pbendergast, Judge, presiding.</p>

<p>Administration—Trusts—Error without Prejudice.</p> <p>1. Upon petition to sell real estate on account of a deficiency of personal estate to pay debts, the Probate Court, having equity powers, will recognize a trust existing in favor of a third person.</p> <p>2. The appellant can not assign as error, action that does not prejudice his rights.</p>

<p>Attachment—National Banks—Statutes—Waiver of Privilege—Pleading.</p> <p>1. A plea of the general issue is a waiver of all matter of abatement.</p> <p>2. The effect of congressional legislation in relation to national banks' prior to the act of July 12, 1882, was to prohibit the issue by State courts of attachments against them. If such prohibition continues, it is a privilege which may be waived.</p>

<p>In error to the Circuit Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.</p>

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

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

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

<p>Limitations—Corporations—Indebtedness in Excess of Capital Stock— Liability of Directors and Officers.</p> <p>1. The statutory liability of directors and officers of any corporation, who assent to the creation of an indebtedness in excess of the capital stock of such corporation, is not a penalty. A bill to enforce such liability is not, therefore, within the limitation of two years.</p> <p>2. The statute of limitations begins to run as to such liability when the excess of indebtedness is created with assent of the persons to be charged, without regard to the time of its maturity as against the corporation.</p>

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

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

<p>Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, 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 action was brought to recover against appellant for a balance of salary claimed to be due to appellee under a contract of employment for the period of one year.

<p>Injunctions—Dissolution on Demurrer—Damages—Solicitor's Fees— Practice.</p> <p>The dissolution of an injunction on demurrer to the hill furnishes no ground for the assessment of damages for services of the solicitor.</p>

<p>In error to the Circuit Court of CookjCounty; the Hon. Lorin C. Collins, Judge, presiding.</p>

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

<p>Mandamus—Practice—Bill of Exceptions—Extension of Time for Filing Stipulation.</p> <p>Where this court has acquired jurisdiction of a case by writ of error, it may, by mandamus in aid of such jurisdiction, require the judge of the trial court to sign and seal a bill of exceptions on a proper showing.</p>

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

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

<p>Practice—Improper Dismissal for Want of Prosecution.</p> <p>Where an answer is filed in a suit to enforce a mechanic’s lien, without notice to the petitioner, the court is not authorized to dismiss for want of prosecution because not at issue, upon a general call of the docket under a published order of the court.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Abba 27. Waterman, Judge, presiding.</p>

<p>Injunctions—Dissolution—Damages—Solicitor's Fees.</p> <p>1. Upon the dissolution of an injunction, a decree for damages to cover solicitor’s fees can not be sustained, in the absence of evidence of the value of the services having distinct reference to such dissolution.</p> <p>2. In such cases evidence to the effect that a sum named is a reasonable and small fee for the services rendered, is insuficient. It should appear what the defendant had paid or become liable to pay, and that it is the usual and customary fee paid for such services.</p>

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

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

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

<p>Landlord and Tenant—Action to Recover Rent—Parties—Surrender— Statute of Frauds—Variance—Practice.</p> <p>1. It seems that an action lies by all the lessors on a lease by indenture executed by one of them “ for himself and as .agent ” of the others.</p> <p>2. The rule that where one person makes an agreement with another for the benefit of a third person such third person may maintain an action thereon in his own name, extends to cases wherein the undertaking is under seal.</p> <p>3. The surrender of a lease is not required to be in writing.</p> <p>4. This court will not reverse for an error which has worked no injury to the appellant.</p>

<p>Injunctions—Railroads—Construction of Crossing — Contract — Easement—Damages—Estoppel.</p> <p>Upon a bill filed by a railroad company to restrain another company from interfering with it in laying down and constructing a railway track across the defendant’s track on premises owned by the complainant, it is held: That the complainant has the right to construct the track, both by reason of its ownership of the ground and the reservation in the contract under which the defendant’s tracks were constructed; that the complainant’s damages, if prevented from constructing its track, would be wholly uncertain; and that the question whether the use to be made of the proposed track will be consistent with the enjoyment of the easement of the defendant, does not arise.</p>

Losen C. Collins, Judge, presiding. On or about June 20, 1864, Edward Mott Robinson, of the city of Hew York, and Robert W. Hyman, who was then a real estate dealer in Chicago, entered into the following contract : “ Whereas, Eobert W. Hyman has purchased the undivided half of section twenty-one (21), township thirty-nine (T. 39) north, range thirteen (13), east of the third principal meridian, in Cook county, Illinois, for the joint account of himself and Edward Mott…

<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. Loren C. Collins, Judge, presiding.</p>

<p>Sales—Warranty—School Bonds—Genuineness of—Agency—Express Company.</p> <p>In an action to recover the price paid for certain school bonds which were forged, it is held: That the evidence does not sustain the finding of the court helow that the defendant was the vendor of the bonds; that the plaintiffs purchased of the forwarder through the express company; and that they determined for themselves the genuineness of the bonds and the regularity of their issue. /</p>

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

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

<p>Appeal Bond—Action on—Evidence—Estoppel.</p> <p>In an action on an appeal bond, the only issue being as to the affirmance of the judgment in question by this court, it is held: That a certified copy of the judgment of affirmance of a judgment of the Circuit Court in a case between the same parties was sufficient evidence, prima facie, of the identity of the judgment affirmed and that recited in the bond; and that the evidence submitted by the defendant was insufficient to establish the contrary.</p>

<p>Creditor's Sill—Lien—Assets in Sands of Receiver—Death of Debtor— Widmo’s Award,.</p> <p>1. The filing of a creditor’s bill for the purpose of reaching the equitable interest of one of several copartners, the assets of whose firm are in the hands of a receiver, constitutes a lien against such interest, which survives the death of such copartner as against all claiming under him, although no receiver has then been appointed.</p> <p>2. Uncertainty as to such interest is no bar to a proceeding by creditor’s bill.</p> <p>3. -A widow’s award from the estate of her deceased husband does not set aside a lien thereon acquired by the filing of a creditor’s bill prior to his death.</p>

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

<p>Slander—Malicious Prosecution—Evidence.</p> <p>In an action for slander and malicious prosecution, conversations between a constable and the plaintiff in the absence of the defendant are inadmissible.</p>

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

Kichaed S. Tuthill, Judge, presiding. This is an action for false imprisonment and malicious prosecution, commenced February 9, 1886, by appellee against appellant. In February, 1885, appellee executed a chattel mortgage to appellant and one Willing, on her household furniture, to secure 8161.18, due September 1, 1885. Part of this sum was at that time advanced to appellee by appellant.

<p>Personal Injuries—Master and Servant—Death of Employe—Action for Damages—Burden of Proof—Instructions.</p> <p>1. In an action to recover damages for causing the death of plaintiff’s intestate, while in the course of his employment by the defendant, the burden is on the plaintiff to prove negligence on the part of the defendant and the absence thereof on the part of the deceased.</p> <p>2. In the case presented, the court below improperly instructed the jury, in effect, to find for the plaintiff, unless they believe from the evidence, affirmatively, that the deceased did not come to his death by the negligence of the defendants.</p>

By agreement of the parties, two cases, entitled as above, have been consolidated and argued together. Two notes were made by C. O. E. Matthern, each for §250, dated October 1, 1886, payable to the order of appellee, one due in sixty and the other in ninety days. Appellant wrote his name on the back of each note before the delivery thereof.

<p>Trust Deed—Foreclosure—Payment.</p> <p>1. The possession of notes by the payee raises a strong presumption that they a,re unpaid.</p> <p>2. The burden of proof is upon the party making claim of payment.</p> <p>3- In proceedings to foreclose a trust deed, this court holds that the claim of payment is unsupported by the evidence.</p>

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

<p>Evidence—Action for Damages for Causing a Death—Declarations of the Deceased.—Res Gestse.</p> <p>In an action to recover damages f r causing the death of the plaintiff's infant son, this court sustains the action of the court below in the admission of the declarations of the deceased, made within a few minutes after the injury, to the effect that he was thrown from one of the defendant’s cars by the conductor.</p>

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

<p>Appeal from the Criminal Court of Cook County; the Hon. Julius S. Gkinnell, Judge, presiding.</p>

<p>Jurisdiction—Corporation—Service of Process.</p> <p>Service of process on a non-resident corporation can not be had by leaving a copy thereof with a director found in the county wherein suit is brought, if such director is there upon his own private business and not upon business for the company.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Eollir 8. WiLLiAMSorr, Judge, presiding.</p>

<p>Jurisdiction—Assignment—Prior Fraudulent Conveyances—Petition by Assignee—Remedy.</p> <p>1. The County Court is not a court of general jurisdiction.</p> <p>2. The act in regard to voluntary assignments does not enable the assignee to sue in the County Court in any case of which it has not jurisdiction by general law.</p> <p>8. Where it is claimed that conveyances made just prior to an assignment by the grantor are fraudulent, the remedy belongs to the defrauded creditors, who must resort to the courts of general chancery jurisdiction.</p> <p>4. Upon petition filed in the County Court by the assignee to set aside certain conveyances alleged to have been made in fraud of creditors just prior to the assignment of the grantor, it is held: That the County Court had no jurisdiction; and that the Circuit Court, on appeal, the trial being de noro, should have dismissed the petition for want of jurisdiction in the County Court and entered its own judgment in favor of the appellee, the grantee in the conveyances in question, instead of remanding to the County Court.</p>

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

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

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

<p>Slander—Privilege of Witness.</p> <p>Words spoken by the defendant in giving his reason for discharging the plaintiff from his employment, in an action to charge the defendant with damages for such discharge, are within the privilege of the witness and can not be made the basis of an action for slander.</p>

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

<p>Husband and Wife—Family Expenses—See. IB, Chap. 68, R. S.—Practice—Error without Prejudice—Costs.</p> <p>1. The liability of husband and wife for family expenses, under See. 15, Chap. 68, R. S., depends upon whether they live together and constitute a family in fact.</p> <p>2. Where it is sought to charge the defendants under the statute, recovery can not be had on any other ground.</p> <p>3. The appellant can not complain of an error which has worked him no injury.</p>

<p>Contempt—Interference w'th Receiver.</p> <p>Where a receiver has been appointed under a creditor’s bill, the court may compel persons within its dictation to refrain from prosecuting suits in other jurisdictions to reach property of the debtor there situated.</p>

<p>Taxes—Sales—Bill to Set Aside Certificates—Costs—Relief.</p> <p>1. Upon a bill to set aside certificates of sale of certain lots for taxes, the complainant is not entitled to costs unless he has applied to the defendant for the surrender of such certificates before suit brought.</p> <p>2. In the case presented, the decree should have required the complainant to deposit in court for the use of defendant the amount he had paid at the sale and subsequent taxes paid by him, if any, with interest at six per cent, per annum on all, as a condition precedent to the relief granted.</p>

<p>Fire Insurance—Loss Caused by Steam.</p> <p>1. An ordinary fire insurance policy does not cover a loss caused by escaping steam from a break in steam-heating apparatus.</p> <p>2. The word fire does not include heat of a degree too low to cause ignition.</p>

<p>Personal Injuries—Negligence—Question for Jury.</p> <p>1. It is the province of the jury to draw inferences from the facts in evidence; and if the evidence tends to support the theory of the plaintiff, whether it is sufficient is a question for the jury.</p> <p>2. It is proper to strike out part of an abstract proposition contained in an instruction where what remains does not tend to mislead.</p> <p>3. In an action to recover damages for a personal injury alleged to have been caused by the negligence of tlie servants of defendants who were working on the same building, this court sustains a judgment for $2,000 for the plaintiff.</p>

<p>Replevin—Sa les—Agency—Broker—Clerk—Discretion—Mistake.</p> <p>1. Where judgment or discretion is reposed in an agent who, in dealing with a third person, makes a mistake in judgment, the principal is bound.</p> <p>2. Where an agent has full authority to make a sale of goods, it is unimportant in whose name they have been stored.</p>

<p>Practice of Medicine—Certificate—Statutory Penalty—Former Adjucli. cation.</p> <p>In an action to recover the statutory penalty for practicing medicine without a certificate, it is held: That there is no practical distinction between the charge involved in a former case against the defendant, and that here in question; and that the order revoking the certificate of defendant is invalid.</p>

John P. Altgeld, Judge, presiding. This is an action on the case brought by appellee against appellant to recover damages alleged to have been caused to appellee’s premises by the operation of appellant’s bridge works. In 1871 the American Bridge Company erected its works, including two steam trip hammers, on its tract of land of about eleven acres near the city of Chicago.

<p>Appeal from the Circuit Court of Cook County; the Hon. Rollin' S. Williamson, Judge, presiding.</p>

<p>Jurisdiefion—Freehold.</p> <p>Where both parties to a cause in equity claim the title in fee simple to real estate in controversy, this court is without jurisdiction on appeal, a freehold being involved.</p>

Julius S. Gkinnell, Judge, presiding. Appellee Hanchett, as sheriff, levied an execution placed in his hands by the appellees, Bryant & Sproelmle, upon certain jewelry which was found in the possession of Shute, the defendant in the execution, in his jewelry store in South Chicago. Appellants replevied the goods, claiming them as their goods which they had placed in Shnte’s hands to sell for them as their agent.

<p>Negotiable Instruments—Lex Loci—Note—Where Payable—Second Suit upon the Same Note.</p> <p>1. Where a promissory note fails to designate a place of payment the presumption is that it is payable at the place where made.</p> <p>2. It is also presumed that a note was made where dated and -that the parties contracted with reference to the law of that place.</p> <p>8. A judgment on the merits in favor of the defendant in an action on a promissory note by an assignee thereof, is a bar to a subsequent action by the payee.</p>

<p>Action of Debt on Penal Bond—Damages in Excess of Ad Damnum— Remittitur—Costs.</p> <p>In an action of debt on a penal bond, wherein the damages adjudged exceed the ad damnum, this court suggests that the decisions by the Supreme Court to the effect that this is error are based upon a mistake, the ad damnum having reference only to the damages sustained through failure to pay the penal sum mentioned in the bond. The plaintiffs having remitted the excess, in this case, the judgment is affirmed, costs being allowed to defendant up to, and including only, the entry of the remittitur.</p>

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

<p>False Arrest—-Action for Damages—Trespass—Process as Protection— Probable Cause—When a Question of Law—Possession of Personal Property.</p> <p>1. In an action to recover damages for false arrest and maliciously and without probable cause suing out a ca. sa., it is held: That the burden is on the plaintiff to show malice and want of probable cause; that, without notice to the contrary, the defendant had the right to trust to, and act upon, appearances as to the quality and ownership of personal property in the possession of the plaintiff; and that, as the plaintiff did not show a want of probable cause, the court properly directed a verdict for the defendant.</p> <p>2. A belief founded upon circumstances sufficiently strong to warrant it, is probable cause.</p> <p>3. What is probable cause upon a state of facts assumed or proved, is a question of law.</p> <p>4. Where an injury to a person is occasioned by regular process of a court of competent jurisdiction, trespass can not be sustained.</p> <p>5. Possession of personal property is, prima facie, ownership.</p>

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

<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 W. Clifford, Judge, presiding.</p>

<p>Railroads—Personal Injuries—Joint Liability.</p> <p>Two railroad companies operating parallel roads are not jointly liable for an injury occurring on one of them, merely on the ground that their flagmen watched, and were guided by, the movements of each other.</p>

<p>Practice—Personal Injuries—Damages—Inadequacy—Appealby Plaintiff-</p> <p>1. A plaintiff who is not entitled to recover at all, has no right to have a verdict in his favor set aside on the ground that it is for too small an amount.</p> <p>2. Where the plaintiff, under such circumstances, has appealed, the defendant having entered no motion for a new trial, the judgment will be affirmed.</p>

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

<p>Sales—Warranty, Express or Implied—Instructions—Damages—Evidence—New Trial—Surprise.</p> <p>1. In an action to recover the price of wire manufactured and sold for a special use, in order to show that it did not serve the purpose desired it must appear that the trial to which it was subjected was a fair one.</p> <p>2. In the case presented, the contest being as to whether certain wire for electrical purposes was properly laid and not damaged .by any mechanical means, or was inherently defective, this court declines to interfere with the verdict for the defendant upon conflicting evidence.</p> <p>3. The court below properly modified certain instructions asked by the plaintiff, so as to make the quality of the wire an independent question.</p> <p>4. The appellant can not complain of an instruction given for appellee which is in effect the s ime as one asked by himself.</p> <p>5. The measure of damages is the sum paid by the defendant for the goods if found to be of no value.</p> <p>6. The court below properly denied a motion for a new trial on the ground of surprise, based upon an insufficient affidavit touching the absence from the country of a party in interest and the failure to take a nonsuit.</p>

<p>negligence—Explosion of Gunpowder—Pleading.</p> <p>1. In an action to recover for injuries to property occasioned by the explosion of gunpowder, the declaration is sufficient if it avers the dangerous character of the articles kept, and the injury to the plaintiff from such keeping, without averring negligence on the part of defendant, or what was done by him that constituted the nuisance.</p> <p>2. It is no answer to a claim for compensation for a wrong done that the plaintiff has consented to conduct by others similar to that of the defendant which caused the injury.</p>

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

<p>Attorney and Client—Assignment—Discharge.</p> <p>Upon an intervening petition by an attorney to reach a fund in court, in order to secure fees claimed to be due him, it is held: That the evidence sustains the view that the petitioner was discharged from the service of the appellant; and that such discharge did not take away the securitj’, in the form of an assignment, for his fees.</p>

<p>’ Appeal from the Circuit Court of Cook County.</p>

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

<p>Mechanic's Lien—Delay of Other Contractors—Damages—Evidence— Architect.</p> <p>1. Under a written contract to furnish materials and labor in the erection of a building, naming a specific sum as compensation therefor, any promise of extra pay must, in order to bind the promisor, be based upon a sufficient consideration.</p> <p>2. Where such contract provides that in case of delay caused by the failure of other contractors to complete their work extra time shall be allowed, such provision will not preclude the recovery of damages resulting from the delay.</p> <p>3. It is incumbent upon one who is erecting a building to keep the work in such a state of forwardness as to enable contractors to complete their work within the time limited.</p> <p>4. In the ease presented, the claim made by the contractor is not within the clause of the contract relating to questions which the architects should decide.</p>

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

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

<p>Insolvent Debtors—Imprisonment—Petition for Release—Chap. 73, R. S.—Malice—Evidence—Former Adjudication—Fraud—Practice.</p> <p>1. Upon the petition of an insolvent debtor to be released from imprisonment under Chap. 72, R. S., it is proper to permit the arresting creditors to introduce in evidence the record and files in the case wherein the writ on which the petitioner was arrested was issued, to show that malice was the gist of the action.</p> <p>2. In the case presented, the declaration having been so framed that the verdict necessarily found malice to be the gist of the action, the court holds the judgment to he final, both as to questions of law and fact there decided.</p> <p>3. Formal and specific objections to the introduction of evidence to save all rights, must be made when the same is offered.</p> <p>4. The trial court may allow the introduction of evidence out of its usual order, in order to economize time.</p>

Richard S. Tuthill, Judge, presiding. This is an action on the case for libel. The declaration charges, in proper form, that appellees, on December 11,1885, maliciously wrote, directed and sent to the firm of Crawford, Mumford & Wroten a letter concerning the plaintiff, as follows: “We have this day handed H. B. Black, Esq., our affidavit, together with a sample marked‘Exhibit 3.’ We desire to call your attention to the affidavit.

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

<p>Fraudulent Conveyances—Assignment of Accounts—Effect—Remedies —Garnishment—Estoppel.</p> <p>1. An assignment of accounts in fraud of the assignor’s creditors is binding upon the assignor, at least to the extent the assignee succeeds in uniting the legal to the equitable title by collections.</p> <p>2. In the case presented, the assignee of the accounts in question did not hold them as collateral security, and, if he made a promise so to apply them, it was without consideration.</p>

<p>Railroads—Personal Injuries—Negligence—Practice—Instruction to Find for Defendant.</p> <p>1. Where one is injured by a railroad company, while negligently walking along its right of way, in order to recover, he must show that the injury could have been avoided by the exercise of ordinary care on the part of the servants of the company, and that they failed to exercise such care.</p> <p>2. Where the evidence of the plaintiff is insufficient to sustain a verdict for him, if obtained, the (rial court may properly direct a verdict for the defendant.</p>

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

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

<p>Personal Injuries—Master and Servant—Fellow-servants—Negligence —Instructions.</p> <p>1. If the negligence of a servant, in the exercise of authority conferred. upon him by the master over his co-laborers, causes an injury to one of them, the case is not within the general rule exempting the master from liability for injuries caused by the negligence of fellow-servants.</p> <p>2. It is proper to refuse to give an instruction touching an issue presented by the declaration but not by the evidence.</p> <p>3. The question what is, or is not, negligence, is for the jury.</p> <p>4. The appellant can not complain of an error which worked him no injury.</p>

<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. Lorin C. Collins, Judge, presiding</p>

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

<p>8a les— Con dition—Fraud—Attachment.</p> <p>The delivery of goods to a dealer upon condition that the title is not to pass until sold to bona fide purchasers, for use, the proceeds, to the extent of the price at which the goods are billed, to belong to the party making such delivery, is fraudulent as against the creditors of such dealer.</p>

<p>Guaranty of Note—Construction—■Expenses Assumed—Practice.</p> <p>1. A surety earn only be charged within the very terms of his contract.</p> <p>2. The guarantor of a promissory note is not regarded in this State as a joint maker.</p> <p>3. In the case presented, the expenses assumed by the guarantor w ere' only such as might be incurred in compelling the maker to perform the contract contained in the note. They do not include the expenses incurred in prosecuting the suit upon the guaranty.</p> <p>4. In an action on a guaranty, the entire claim of the plaintiff must be presented.</p>

Richard W. Clifford, Judge, presiding. This is an action of assumpsit brought by appellee to recover for services alleged to have been rendered to appellant in appearing before the Indiana State Board of Equalization, and aiding appellant’s general solicitor to prevent an excessive valuation of appellant’s property for purposes of taxation.

<p>Landlord and Tenant—Action for Lent—Conflict of Evidence.</p> <p>1. Where conflicting evidence is so evenly balanced that it would support a verdict for either party, the verdict of the jury is conclusive.</p> <p>2. In an action io recover rent for lands alleged to have been held by the defendant under a lease, this court affirms the judgment for the defendant, the evidence being conflicting and there being no error in the exclusion of evidence or giving of instructions.</p>

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

<p>Malicious Prosecution—Probable Cause—Evidence Res Oest®.</p> <p>In an action to recover damages for malicious prosecution in causing the plaintiff’s arrest, what took place at the time of, and during the disturbance in connection with, the arrest, is material on the question of probable cause.</p>

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

<p>Municipal Corporations—Public Work—Contract—Guaranty—Construction—Debt on Bond.</p> <p>In an action of debt on a bond to secure the performance of a contract to furnish and lay, for a municipal corporation, an iniet-pipe on the bottom of Lake Michigan, connecting with a system of water works, it is held: That the guaranty clause of the contract is not to be so construed as to make the contractors liable for the failure of the work to remain in good condition, by reason of defects in the plan or design, or of the work being done in certain particulars in accordance with the express direction of the city engineer; and that an instruction placing a different construction on the contract is erroneous.</p>

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

<p>Municipal Corporations—Streets—Change of Grade—Damages—Instructions.</p> <p>In an action brought to recover damages suffered by a property owner through the change in the grade of a street, bis buildings having been erected according to the grade given him by the city engineer, this court declines to interfere with the verdict for plaintiff, the evidence being sharply conflicting.</p>

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

<p>Creditor's Bill—Fraudulent Conveyance—Secret Trust—Husband and Wife.</p> <p>1. Only creditors having existing claims when it was executed can avoid a conveyance which is alleged to be fraudulent, unless it appears to have been made in anticipation of indebtedness to be incurred.</p> <p>2. Provisions for wife and children made by a husband and father will be upheld in equity, when no fraud is thereby perpetrated upon creditors.</p> <p>3. A conveyance by a husband to his wife through a third person with a view of securing a home for his family, will not he stamped as a secret trust so far as subsequent debtors are concerned, merely because he shares the home thus secured.</p>

<p>Appeal from the Circuit Court of McHenry County; the Hon. Citarles Kellum, Judge, presiding.</p>

<p>Garnishment—Exemptions—Interpleader—Presumptions—Bill of Exceptions.</p> <p>1. The presumption o£ law is in favor of the regularity and correctness of the proceedings of courts of general jurisdiction.</p> <p>2. In a garnishee proceeding, involving the right of the judgment debtor ^o claim certain money and property as exempt, the question at issue being one of fact, this court declines to interfere with the judgment, as the bill of exceptions does not purport to contain all the evidence.</p>

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

<p>Practice—Failure to File Briefs.</p> <p>This court will reverse for failure of the appellee to file briefs.</p>

<p>Administration—Claims—Limitations—Pleadings—Evidence—Instructions.</p> <p>1. Upon a claim filed against thé estate of a deceased person to recover a proportionate share of the expenses of certain bankruptcy proceedings, under an agreement entered into with other creditors of a common debtor, this court, reviewing the evidence, holds that the claim is barred by the statute of limitations.</p> <p>2. The statute of limitations need not be specially pleaded in cases of this character.</p> <p>3. An agreement to bear a proportionate share of the expenses of certain proceedings will not render the promisor liable for collateral matters.</p> <p>4. The report of an assignee is not competent evidence of the commencement or termination of a suit. The records and files of the court should be resorted to for such purposes.</p>

<p>Trespass—Stocic—Sec. 1, Chap. 8, It. S.—Fence—Evidence—Instructions—Damages.</p> <p>1. Under Sec. 1, Chap. 8, R. S., the owner of caftle must keep them from his neighbor’s premises, or respond for damages caused by them.</p> <p>2. In the case presented, the declaration is broad enough to cover both common law and statutory liability.</p> <p>3. The measure of damages for injury to growing trees in a nursery is the loss in the market value thereof.</p>

<p>Appeal from the Circuit Court of Will County; the Hon. George W. Stiff, Judge, presiding.</p>

<p>Assignments—Preferences—Judgment Note—Execution—Whether Dormant—Fraud—Eoidetice—Rehearing—Refusal of Certificate of Importance.</p> <p>1. The holder of a judgment note is not required to use greater diligence as to its collection than if his claim was of a different character.</p> <p>2. In the absence of fraud, a creditor may enforce his claim against a debtor, knowing him to be insolvent.</p> <p>3. The fact that the attorney who entered up judgment on a judgment note also drew the deed of assignment of its maker is not of itself evidence of fraud.</p> <p>4. To render dormant an execution in the hands of an officer, some command must be given by the execution creditor inconsistent with its mandate.</p> <p>5. A failure by the officer to make a levy within one hour of the receipt of the execution does not operate to forfeit the lien of the judgment creditor upon an assignment by the debtor thereafter made prior to a levy.</p> <p>6. The expiration of an execution during (he pendency of proceedings on petition for a preference, and under a claim of priority of lien thereunder, does not affect the rights of the execution creditor.</p> <p>7. Evidence improperly ruled out by the trial court may be considered by this court on appeal.</p>

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

<p>Administration — Suit on Note — Set-off—■Instructions—-New Trial— Newly-Discovered Evidence.</p> <p>1. In a suit brought by an administrator to recover upon a promissory note payable to his intestate, upon review of the evidence, which is conflicting, this court declines to interfere with judgment for plaintiff.</p> <p>2. It is proper to refuse a new trial on the ground of newly-discovered evidence when the same is simply cumulative and insufficient to alter the verdict.</p>

<p>Highways—Railroads—Exclusive Use of Road—Agreement with Commissioners—-Validity of—Estoppel—Trespass—-Prosecution for Statutory Penalty—Eminent Domain.</p> <p>1. A public highway can only he vacated in the manner provided by statute.</p> <p>2. The statute does not authorize the commissioners of highways to substitute one road for another.</p> <p>3. The commissioners of highways have no authority to surrender the entire use of a public road to a railroad company in exchange for a new road to be provided by the company.</p> <p>4. In the case presented, the town is not estopped merely because the railroad company has expended a considerable sum In providing the new road under its unauthorized agreement with the commissioners of highways.</p> <p>5. The defendant company having taken exclusive possession of the public highway in question under such unauthorized agreement, is subject to prosecution under the statute imposing a penally for obstructing a highway.</p> <p>6. It seems that property in public use can not be wholly taken for another and different public use by the power of eminent domain under the statute.</p>

<p>Appeal—Interlocutory Order—Mortgages—Redemption.</p> <p>An appeal will not lie from a decree allowing the complainant to redeem property in the possession of a mortgagee, with a reference to the master to state an account, such a decree being interlocutory and not final.</p>

<p>Practice— Bill of Exceptions—Presumption.</p> <p>In the absence of the certificate of the judge of the trial court to the bill of exceptions, the presumption is in favor of the regularity of the proceedings.</p>

<p>Appeal from the Circuit Court of Kankakee County; the Hon. y. J. Pillsbury, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Warren County; the Hon. John C. Bagby, Judge, presiding.</p>

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

<p>Replevin—Appeal Bonds—Costs—Consolidation of Claims—Former Adjudication.</p> <p>1. The statute requiring the consolidation of claims in suits before justices only applies to claims which are capable of consolidation in a legal sense.</p> <p>2. A judgment on a replevin bond does not bar an action for costs on an appeal bond given in the same case.</p>

<p>, Negotiable Instruments—Note—School Funds—Loan on Personal Security—Signature after Maturity—Agreement to Forbear—Consideration-Pleading.</p> <p>1. A plea in abatement to several counts of a declaration is waived by a subsequent plea in bar.</p> <p>2. The loan of school funds upon personal security in a larger amount than is prescribed by statute will not render void a note given therefor.</p> <p>3. A special plea which simply traverses a portion of the facts which the plaintiff is bound to prove to establish his right to recover under the declaration, is bad as amounting to the general issue.</p> <p>4. In an action on a promissory note against one who claims that his signature was affixed after the maturity of the note, this court holds that the evidence does not show a new and express consideration.</p>

<p>Appeal from the Circuit Court of Kankakee County; the Hon. H. J. Pillsbuey, Judge, presiding.</p>

IsaAo J. Wilson, Judge, presiding. On the 10th day of August, 1882, the Home National Bank of Chicago was, and still is, a banking… Held: by pledge of said manufacturing company, and as collateral security to said claim of said bank against said manufacturing company, nine packages of fanners’ notes, so-called (being notes originally taken by said manufacturing company for goods sold by it to farmers and others about the country), said nine packages being numbered…

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

<p>Administration—Advancements—Statute—Receipts—Ignorance of Law.</p> <p>1. An heir who has receipted for his share of an estate, less an advancement, can not subsequently]recover a further sum from the administrator, upon the plea that the advancement was not evidenced as the law requires.</p> <p>2. Upon appeal by the administrator from an order allowing a certain sum as the share of the appellee in an estate, this court declines to in. terfere, the receipts of other heirs being conclusive as to advancements made to them.</p> <p>3. Relief on the ground of mistake in law is only granted in rare cases.</p>

<p>Municipal Corporations—Personal Injuries—Defective Sidetvalh—Damages—.Evidence—Instructions.</p> <p>1. In an action against a municipality to recover damages for personal injuries suffered through a defective sidewalk, this court holds that the officers thereof bad constructive notice of the condition of the walk, which had stood a long time and become rotten from exposure.</p> <p>2. The amount of damages to be awarded in such cases is within the discretion of the jury, the verdict being subject to be set aside whenever so excessive as to indicate that the jury were actuated by prejudice or other improper motive.</p>

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

<p>Appeal from the Circuit Court of Warren County; the Hon. John C. Bagby, Judge, presiding.</p>

<p>Appeal from tlie Circuit Court of Stephenson County; the Hon. John D. Crabtree, Judge, presiding.</p>

<p>In error to the County Court of Ogle County; the Hon. William Brown, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Grundy County; the Hon. Charles Blanchard, J udge, presiding.</p>

<p>Trover—Cribs of Corn—■Instructions—Damages—Verdict—Impeachment of National Banks—Chattel Mortgage.</p> <p>1. The rule lhat the purchaser of a chattel must, in order to protect himself, take actual physical possession thereof, does not apply to property of a bulky nature which is practically irremovable.</p> <p>2. It is a sufficient notice of a change of title to cribs of corn to place notices thereon stating that the contents belong to the purchaser. Trover will lie against the purchaser from the original owner of corn from cribs on which are posted such notices.</p> <p>8. The appellant can not complain of the action of the court in giving an instruction for the adverse party similar to one asked by himself.</p> <p>4. A juror can not impeach his own verdict by declarations made after the trial which would show his disqualification as a juror, or misconduct on the trial.</p> <p>5. It seems that a national bank may take a chattel mortgage.</p>

In ebboe to the Circuit Court of Kendall County; the Hon. C. W. Hpton, Judge, presiding. This was an information for qtio warranto, filed by the state’s attorney of Kendall county in the Circuit Court of that county on the 27th day of July, 1887, against the apjiellees, to compel them to show cause by what rights they claimed to hold the office of directors of school district number 1, T. 37 3ST., R. 7, E. of the 3d E. M. in said county.

<p>Fraudulent Conveyances—Evidence—Parties—Lis Pendens.</p> <p>1. One of the two judgment debtors need not be made a party to proceedings to remove an alleged fraudulent conveyance of property of the other out of the way of the execution.</p> <p>2. No one can make himself a necessary party to a litigation by purchasing an interest in its subject-matter while it is pending.</p> <p>3. Mere sworn declarations that a transaction was honest are but conclusions, which can not prevail where the existing facts point satisfactorily to a contrary conclusion.</p> <p>4. While fraud is never presumed, it may be proven by circumstances and facts which are inconsistent with an honest purpose.</p>

<p>Administration—Discovery—See. 81, Chap. 3, 2. S.—Gifts “Inter Vivos,” and “Mortis Causa ’’—Exceptions—Practice—Sec. 61, Chap. 110, 2. S.—Trial hy Jury—Sec. 5, Art. 2, Constitution—Frauds—Presumption of Regularity.</p> <p>1. This court will not consider the evidence in a case tried by the court below without a jury, where the record fails to show that an exception was taken to the final judgment.</p> <p>2. Upon proceedings brought by an administratrix for the recovery of notes claimed to belong to an estate, it is proper to refuse a trial by jury in the Circuit Court upon appeal from the County Court.</p> <p>3. Section 5, Art. 2, of the Constitution of 1870, was not intended to introduce jury trials in special summary jurisdictions, which were unknown to the common law, and which do not expressly provide for that mode of trial.</p> <p>4. The provisions of the Constitution touching trials by jury do not apply to courts exercising discretionary equity powers or jurisdiction.</p> <p>• 5. The delivery of indorsed notes to a third person, upon the understanding that .the donor shall receive the interest thereon during his natural life, the same upon his death to be divided equally between persons named, if unrevoked, amounts to a gift “ inter vivos," and also to a good gift “mortis causa."</p> <p>6. In actions of this character the County Court is not confined to the technical legal rights of the parties in interest, but may act upon their equities as well.</p> <p>7. The presumptions are in favor of the regularity of a judgment of a court of record of general jurisdiction.</p>

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