Volume 35 — Illinois Appellate Court Reports

<p>If error to the Circuit Court of Cook County; the Hon. Abba M. Watermaf, Judge, presiding.</p>

1. An instruction complained of will not be considered by this court unless all the instructions given are set out in the abstract. 2. In an action brought by a servant against his employer to recover for personal injuries alleged to have been suffered through the negligence of a superior servant, this court declines to interfere with the judgment in behalf of the plaintiff. 3.

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

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

<p>Judgments—Satisfaction of Record—Rule to Shot» Cause—BUI of Exceptions—Éandamus to Compel Judge to Sign—Practice.</p> <p>1. It is proper to refuse to enter a rule to show cause why a judgment should not be satisfied of record, where the affidavits filed show only grounds existing before the entry thereof.</p> <p>2. The filing of a petition for mandamus herein and the issuance of summons, to the end that a judge of the Superior Court should sign a bill of exceptions, is improper without first obtaining leave to file.</p>

<p>Practice — Continuance — Affidavits of Physicians and Attorney— Absence on Account of III Health—Nervous Prostration—Deposition— Failure to Take—Witnesses.</p> <p>1. Where a continuance is sought on account of the absence of a party in interest who is expected to testify as a witness, a higher degree of diligence is required to procure his attendance or deposition than where the absent witness is a stranger to the suit.</p> <p>2. Affidavits in support of a motion for a continuance based upon the absence of a party to the suit through ill health should set up his expectation as to returning, or the probability of obtaining his testimony at some future time.</p> <p>3. In the case presented, this court holds that the affidavits filed contained nothing inconsistent with the view that defendant’s deposition might have been taken before he went abroad; that they are vague and uncertain as to his health and the length of time he had been ill when he left the city; that nothing definite is stated as to the time of his return; and declines to interfere with the ruling of the trial court denying the motion in question.</p>

<p>Malicious Prosecution — Larceny — Probable Cause—Arrest without Process—Damages—Trespass.</p> <p>1. An arrest without process must be justified in order to excuse whoever concurred in causing it.</p> <p>2. All persons who order, direct, aid, abet or assist the commission of a trespass, are liable for all the damages.</p> <p>3. This court will not reverse because the verdict may be against the evidence, unless it is apparent that upon another trial before a jury, th e result would be different.</p> <p>4. In an action brought to recover damages for causing the arrest of plaintiff upon the ground of larceny, this court declines to interfere with the verdict in her behalf.</p>

<p>Contracts—Party Walls—Conditions—Building of Entire Wall on Land of Another—Subsequent Agreement—Consideration—Light and, Air—Obstruction of.</p> <p>1. Where express words in a contract fairly and legitimately require an inference as to their intention, the intention thus inferred is just as truly a part of the contract as the clearly expressed undertaking.</p> <p>2. Upon a bill filed to prevent a neighboring land owner from constructing openings in an extension of a party wall, and placing windows therein. this court holds that the agreements o£ complainant as set forth in a certain written contract signed by him and the defendant, were based upon a valuable consideration, and that bis intention to allow the making of such windows, and the preservation thereof, free from,any obstruction of the light, is plainly discoverable therefrom.</p>

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

<p>In error to the Superior Court of Cook County; the lion. John P. Altgeld, Judge, presiding.</p>

Oliver H. Hortoh, Judge, presiding. On June 27, 1889, a bill was filed in the Circuit Court by appellee Gibson, setting out that he had been engaged with a partner named Hugh McCormick in the dry goods business in the city of Chicago; that on the 17th of June, 1889, said firm were in the possession of a certain stock of dry goods, which, with some debts due the firm, made the assets of the value of §10,000 to §12,000; that said firm was indebted to various parties to an…

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

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

• Appeal from the Criminal Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. This appeal is prosecuted to reverse the order of the Criminal Court of Cook County, dismissing the suit on motion. Appellee was arrested and tried in the police court and fined for disorderly conduct. He regularly appealed the case to the Criminal Court.

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

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

<p>In error to the County Court of Cook County; the Hon. Richard Prendergast, Judge, presiding.</p>

<p>Municipal Corporations — Superviso»— Compensation—Payment—■ Injunction—Secs. 1 and 4, Art. 13, Chap. 139 JR. S.—Fraudulent Claim.</p> <p>Upon a bill filed by a tax payer to enjoin the delivery of a town warrant to defendant, for his compensation as town supervisor, it being alleged that his bill for services rendered was incorrect, this court declines, in view of the evidence, to interfere with the decree in behalf of the complainant.</p>

<p>Negotiable Instruments—Corporation Notes—Guaranty—Indorsement— Evidence—Proposition of Law. .</p> <p>1. In a case tried without a jury, the finding of the court must stand unless it appears to have been based upon an erroneous view of the law.</p> <p>2. The writing of his name by the payee of a note on the back thereof implies a contract that parol evidence is inadmissible to vary.</p> <p>3. On a blank indorsement by a stranger to the note the law implies no contract, but presumes, in the absence of evidence to the contrary,the assumption of a contract of guaranty.</p> <p>4. The presumption is, unless the facts are shown to have been otherwise, that the indorsement was placed upon the note when the same was made, and therefore was intended as a guaranty supported by the original consideration of the note.</p> <p>5. Evidence as to conversations between the parties at the time oí the indorsement, is admissible in such case, and it is a question of fact whether such signer did, in fact, intend that personal liability as guarantor should be incurred or not.</p> <p>6. Harmless errors can not be complained of.</p>

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

<p>Insolvency—Bank—Funds in Another State—Assignment of Claim— Attachment—Petition ~by Receiver that Proceedings he Enjoined and Funds Released—Decisions of Other Stales—National Constitution, Art. Id, Sec. 1—Parties—Estoppel—Res Adjudicata.</p> <p>1. The pending of a receiver’s petition that attaching creditors of his insolvent be required to discontinue proceedings in another State, and to release and pay over moneys in their hands, without a restraining order, has no effect on such suits.</p> <p>2. Where the defendant is duly served with process, or appeared in the cause, the judgment of a court of a given State is conclusive for all purposes and is not open to inquiry upon the merits. If the judgment is conclusive in the State where it was pronounced, it is equally conclusive in all the courts of any other State, and the Legislature of another State is powerless to authorize its courts to open the merits and review the cause, or to enact that such a judgment shall not receive the same faith and credit that it had by law in the State where it was rendered.</p> <p>3. A receiver employing counsel to enter the appearance of the insol vent in a given suit, and the procuring by him of the release of funds attached therein, through the offices of a surety company, operate to make him a party thereto.</p> <p>4. The failure to present a given defense does not preserve the right to open the litigation in another forum. The principal of res adjudicata extends not only to questions of fact and of law, which were decided in a former suit, but also to the grounds of recovery or defense, which might have been, but were not presented.</p> <p>5. It is the rule in New York that an assignee by operation of law can not supersede an attachment lien acquired by a creditor of an insolvent, although the assignment was made before the lien was acquired, the creditor and insolvent both being residents of the State.</p>

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

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

<p>Fire Insurance—Loss—Parol Promise by Adjuster to Pay—Becovery on—Compromise—Fraud—Evidence—Instructions.</p> <p>1. The rule that parol testimony can not be received to contradict, vary, add to, or subtract from the terms of a valid, written instrument, is not infringed by proof of any collateral, parol agreement, which does not interfere with the terms of the written contract, though it may relate to the same subject-matter.</p> <p>2. In an action to recover, upon the parol promise of an insurance adjuster to pay a sum named within a given time, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.</p>

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

<p>Landlord and Tenant—Lease—Tlent—Guaranty—Assignment.</p> <p>In an action to. recover upon a written guaranty for payment of rent, this court holds, that in view of the terms thereof a subsequent assignment of the lease did not operate as a release of the guarantor.</p>

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

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

<p>In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.</p>

<p>Administration—Probate of Will—Bill to Set Aside.</p> <p>1. This court declines to interfere with a decree dismissing a bill filed to set aside the probate of a will fifteen years after the same occurred.</p> <p>2. The word “absent” with reference to a person in a statute other than of limitation, must be taken to mean one who has been present, not a non-resident.</p>

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

<p>Mechanics' Liens—Payment—Architects' Certificates—Death of Member of Firm of—Evidence.</p> <p>1. The recognition by an owner and building contractor of the surviving member of a firm of architects, upon whose certificates payments were to be made, as superintendent and architect, is binding upon both.</p> <p>2. Upon a bill filed by a building contractor to enforce a mechanic’s lien for an amount claimed to be due, this court holds as erroneous the refusal of the trial court to admit upon the part of the defendant, evidence going to show that the plaintiff had not followed the plans and specifications whereby he was injured, and that the decree for the plaintiff can not stand.</p>

<p>Trespass—Assault and Battery—Damages—.Evidence —Testimony of Child—Criminal Law.</p> <p>1. In an action of trespass, brought for the recovery of damages for injuries suffered by reason of an assault and battery, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.</p> <p>2. In the case presented it is held: That the refusal to allow a boy ten years old to testify was proper, no statement having been made as to what was expected to be proved by him, and no question having been propounded to him from which the same could be inferred.</p>

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

<p>Practice—Bill of Exceptions—Absence of—Original Bill.</p> <p>1. This court declines to consider the case presented, in the absence from the record of a bill of exceptions.</p> <p>2. ‘ The original bill may be incorporated in the transcript of the record by agreement of the parties, but not otherwise.</p>

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

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

<p>Mechanic's Liens—Building Contract—Rescission—Waiver—Evidence.</p> <p>1. A mechanic’s lien can not be enforced upon premises where a given contract was to have been performed where no part of the labor has been done and no part of the materials used, when the same is rescinded by the owner.</p> <p>2. Work done and materials furnished without such owner's consent after notice of rescission do not affect the general rule.</p> <p>3. In such case the contractor’s remedy is confined to an action for damages for breach of the contract.</p>

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

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

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

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

<p>Attachment—Debt not Due—Default—Motion to Set Aside—Fraud,— Amendment—Attorneys—Employment of by Deceiver—Costs.</p> <p>1. A harmless error is no cause for reversal.</p> <p>2. Upon attachment proceedings based upon a debt not due when the suit was commenced, this court, in view of the evidence, declines to interfere with the judgment for the defendant.</p> <p>3. This court holds as proper, the employment of certain solicitors in chancery proceedings involving the parties to the case presented.</p>

<p>Appeal from the Circuit Court of Cook County; the lion. Eiohabd W. Clieeoed, Judge, presiding.</p>

<p>Exem~tions-CusfocZy-Petition for Be ~ea~e from-County ~Tudge~Interchange of-Judicial .&otice-Failure to Schedule-Practice.</p> <p>1. Upon the petition of a debtor in custody to be released, the same set-Hug forth an offer to deliver up his property, it is necessary for him to make a schedule thereof even if it be exempt from execution.</p> <p>2. Where a county court within a district over~which an appellate court has jurisdiction, is presided over by one who is not the judge of that county court, and there is nothing in the record to show why he does so preside, the appellate court, if the proceedings come before it for review, ~us1 ta~~e notice of the fact, if fact it be, that the person so presiding is judge of another counfy court of this State, whether in the same district or another, and presume the existence of circumstances justifying him in so presiding~</p>

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

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

Collies, Judge, presiding. Appellant filed a creditor’s bill in which, after alleging the recovery of a judgment against said appellee Ifilsson, and the return of an execution issued thereon, no part satisfied, it is further alleged, that April 5, 1888, and for some time prior to that date, the defendant Ifilsson, was engaged in mercantile business in the city of Chicago, and on that date, and for a long time prior thereto, but for how long complainants are unable to state,…

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

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

<p>Attachment—Malice—Agent—Ratification—Eoidence—Instructions.</p> <p>1. The mere fact that a person is acting as the agent of another in the collection of a debt, does not render the latter liable for his maliciously suing out an attachment.</p> <p>2. The agent in such case is alone liable unless it can be shown that the principal in some manner aided, abetted, advised or consented to, or adopted or ratified such act.</p> <p>3. While a principal may render himself liable for the tort of his agent by receiving and appropriating the fruits thereof, in order that such appropriation shall amount to a ratification so as to charge the principal, it is indispensable that he shall be shown to have had full knowledge of all the material facts and circumstances of the tort.</p> <p>4. In an action brought to recover damages for the malicious suing out of, and levying an attachment on the property of the plaintiff, this court holds, that in view of the giving of erroneous instructions touching the rule of liability of principals for the torts of their agents, the judgment in her behalf can not stand.</p>

<p>Negotiable Instruments—Notes—Partnership—Dissolution—Assumption of Debts of—Burden of Proof—Principal and Surety—Evidence— Instructions—Practice—Notice.</p> <p>1. If in a given case there is a conflict of evidence on a material issue of fact, and the instructions given are found to be misleading and inaccurate-, and a reviewing court can see that such erroneous instructions may have influenced the jury to the injury of the party assigning error upon them, the verdict must be set aside and the case remanded for a new trial,</p> <p>2. In an action brought to recover upon certain promissory notes given to renew a prior indebtedness of a copartnership subsequent to the dissolution thereof, by one of its members who signed the firm name thereto, he having purchased the interests of the other partners, and agreed to assume the debts of such firm, this court holds, the contention being as to whether, when said notes were delivered, the officers of the bank receiving them knew of such dissolution, and that the firm debts had been so assumed, that, in view of the giving of erroneous and misleading instructions, the judgment for the defendant can not stand.</p>

<p>Attachment — Interpleader — Advances upon Consignments— Draft— ¡Shipping Receipt—Delivery—Evidence.</p> <p>1. Although a draft upon consignees in favor of one making advances is dishonored, the delivery of the shipping receipt to such person is equivalent to a delivery of the property in question.</p> <p>2. In attachment proceedings involving a carload of flax seed, a third person claiming title thereto, it being shown that contracts had been entered into between him and the defendant touching advancements upon consignments, this court holds that the action in the premises of the bank-named, was simply as agent' for the intervener, its president, whose private means were alone involved; that the cancellation of the draft referred to by charging the same to defendant, cut m figure, as under one of the contracts previously entered into the seed was the property of the inters venor while he remained in possession thereof, and until advances were paid; that the drawing of the draft was merely a method of carrying out such contract, and declines to interfere with the judgment in his behalf.</p>

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

<p>Master and. Servant—Negligence of Servant—Injury to Third Person— Evidence.</p> <p>This court declines to interfere with the verdict for the plaintiff in an action brought to recover for personal injuries alleged to have been suffered by him, through the negligence of one of defendant’s servants.</p>

<p>Practice—Receiver-—Employment of Counsel for Complainant by—Pees —Payment of—Master's Report—Exceptions—Partnership—Dissolution of.</p> <p>A receiver in proceedings touching the dissolution of a partnership should not employ the attorney of the complainant in the bill Sled with that end in view.</p>

<p>Municipal Corporations—Ordinance—Construction — Railroads — Permission to Lay Tracks—Viaduct—Injury to Private Property—Evidence —Damages.</p> <p>1. The history of city council proceedings pending the consideration of an ordinance which is but a proposition, and is of no effect unless accepted by the party to whom it is made, can not be used to give force or meaning to the contract so made.</p> <p>2. In an action brought by a municipality to recover from a railroad company the amount of a judgment recovered against it by a property owner injured through the construction of a viaduct by said company, the right to lay certain tracks having been granted it upon the understanding that it should pay the cost and expense of the viaduct in question and legal - damages resulting, this court declines to interfere with the judgment for the plaintiff.</p>

<p>Bailments—Appeal—Nature of Action—Change in—Damages—Evidence.</p> <p>1. Upon appeal from the judgment of a justice, the nature of the action is determined in the court to which the appeal is taken, by the evidence introduced at the trial, without any reference to what it may have been called in the justice court.</p> <p>2. If such case is tort, the amount of damages that may he recovered is limited to the amount of a justice’s jurisdiction, and whatever the proof, the judgment must not exceed that amount.</p> <p>3. In an action brought to recover the value of certain articles claimed by the plaintiff to have been stored with defendant, she alleging his refusal to deliver the same to her, this court declines, the evidence being conflicting, to interfere with the verdict in her behalf.</p>

<p>Telegraph Companies — Stock—Subscription — Installments—Assessment—Evidence—Instructions.</p> <p>1. The payment of an assessment upon corporate stock with knowledge of facts which would warrant a rescission of the subscription thereto, amounts to a waiver thereof.</p> <p>2. In an action brought to collect an installment upon an alleged subscription to the capital stock of a telegraph company, this court reverses in view of the giving of an erroneous instruction in behalf of the defendant, taking in effect the whole case from the jury and ignoring the question of waiver.</p> <p>3. It seems that a subscription to capital stock, after the whole has been subscribed for, will not bind the subscriber,</p>

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

<p>Practice—Leading Questions—Identity—Prima Facie Evidence of.</p> <p>1. A general objection is not enough to raise the point that a question is leading.</p> <p>2. That one at the office of a party to a suit is pointed out as the party himself, is prima fade evidence of identity.</p>

Richard W. Clifford, Judge, presiding. Appellees were co-partners doing business in New York; Doering & LeOlair were, partners in the galvanized iron business in Chicago, and as such partners became indebted to appellees, for which indebtedness appellees held the firm’s acceptance, which was overdue and had gone to protest.

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

<p>Corporations—Dissolution—Personal Liability of Stockholders—Subscript-ion for Stock—Revocation—Reversal.</p> <p>1. No device will free a holder of corporate stock purchased from the corporation for a percentage of its nominal value from his obligation to creditors to pay the residue.</p> <p>2. A subscription for corporate stock upon which nothing was paid is revocable by consent of the parties concerned, before the corporations begins to do any business, and before any interests of third persons to be affected</p> <p>by such revocation attach, and the persons so surrendering are not assignors to the persons who afterward buy the stock from the corporation, and therefore not jointly liable with them under See. 8, Chap. 32, R. S.</p> <p>3. The reversal of a judgment or decree reverses the whole of it, except where the interests of the several parties against whom it was rendered are wholly dissevered and independent, in which case the reversal operates only as to the parties who procured the same.</p> <p>4. In proceedings involving the winding up of a corporation, this court holds that the dissolution can not be complained of, in view of the fact that it had ceased business and its assets were exhausted; that proceedings in cases of this character must be ambulatory until complete satisfaction or total insolvency has left nothing to be reached; and declines, in view of the evidence, to interfere with decrees to this end.</p>

<p>Landlord and Tenant—Trespass—L^ase—Conditions—Breach by Tenant—Ejectment of—Evidence—Instructions—Damages—Pleading.</p> <p>1. Bad instructions for the winning party are not cured by good ones for the loser.</p> <p>2. A defendant proving one of several pleas in bar is entitled to a judgment.</p> <p>3. A person employing another to take possession of certain premises is liable for actual damages to the person dispossessed.</p> <p>4. A ratification of a trespass is not a ground for vindictive damages.</p>

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

<p>Practice—Interlocutory Decree—Bill to Set Aside—Multiplicity of Suits.</p> <p>An originaVbill will not lie to review an interlocutory decree.</p>

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

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

<p>In solvency—Orders Relating to Property of Insolvent—Judge of Another Court—Presiding of.</p> <p>1. It is the duty of the County Court in insolvent cases to pursue such course with reference to the property which comes to its hands as will best, preserve its value and render it most available to creditors. In the efforts to realize the largest returns possible for the creditors, the court must be left in possession of a liberal discretion, and its orders will not be disturbed, unless its discretion is manifestly abused.</p> <p>2. In cases of this sort where the facts which induced the court to make the orders complained of, are not preserved in the record, the presumption arises that circumstances existed which warranted the same,</p> <p>3. In the case presented, this court holds, that parol evidence introduced to show that the judge in question was not requested by the county judge of Cook County to hold the court and that a certain order was not entered while presiding as judge, can not properly be considered in view of the fact that the record shows that he was properly presiding therein.</p>

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

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

<p>Agency—Real Property—Sale of—Commissions—Claims for, by Two Agents—Interpleader—Answer.</p> <p>A bill of interpleader requiring two real estate agents to interplead as to which of them shall have certain commissions due upon the sale of a piece of land, each claiming to have made the sale, will not lie; the defense must be at law.</p>

<p>Railroads—Negligence—Crossings— Personal Injuries— Pleading — Refect in—Verdict—Evidence.</p> <p>1. The fact that the trains of a railroad company have for several years been daily run over the track of another company, is prima facie evidence of a contract between such companies to that end; and in case the company owning such track takes the ground that the company so using it is a trespasser, the burden of proof is upon it to show that such was the case.</p> <p>2. In an action brought by an administrator for the recovery of damages for the death of a third person, alleged to have been occasioned by the negligence of railroad companies, this court holds that the fault of the declaration involved was cured by the verdict, and declines to interfere with the judgment in behalf of the plaintiff.</p>

<p>Negotiable Instruments — Note—Execution—Improper Remarks by Counsel During Trial.</p> <p>1. Improper statements of counsel made during the trial of a cause will not justify a reversal unless it appears that they probably had a material influence on the result.</p> <p>2. In an action brought to recover upon a promissory note, the contention being as to whether the same had been executed by the defendant, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.</p>

Julius S. Gkinnell, Judge, presiding. This ease was submitted to the court below on the following agreed statement of facts: The Western Refrigerating Company, plaintiff, and William J. McDonald, defendant, in the above entitled cause, now pending and undetermined in said court, in pursuance of the statute in such case provided, do hereby make this an agreed case, and stipulate as follows to wit: That on the 27th day of October, 1888, the plaintiff filed its declaration…

<p>Trespass—Writ of Restitution—Acts in Execution of—Evidence—Practice.</p> <p>Counsel should not be permitted in civil cases to read law to the jury.</p>

<p>Contracts, Written and Oral—Patent Rights—Assignment—Partnership—Evidence.</p> <p>1. All oral negotiations and agreements between parties, which precede the reduction of their contract to writing, will be treated as merged in the writing, and where a writing expresses certain things to be performed by one party upon a consideration moving from the other, it is not competent to prove by parol that some other thing, in addition to those stated in the writing, was also and before or at the time of the making o£ the writing, agreed to be performed upon the same consideration.</p> <p>2. Evidence is admissible to sho.w that part only of a contract was reduced to writing, and parol evidence may be introduced to supply the rest of the agreement.</p> <p>3. An assignment by less than the full number of the members of a given firm, of patents-owned by it, conveys only their interests therein after the payment of the partnership debts.</p> <p>4. Upon a contention touching the assignment of interests in certain patent rights, it being claimed by the assignee that a certain written contract did not fully express the arrangement between the parties, and that the subsequent assignment to him of certain claims against third persons named, was upon the same consideration as the agreements and undertakings contained in the said written contract, this court declines to interfere with the decree of the trial court, holding that said written contract contained the whole agreement of that date, and that at that time no agreement to assign said claims was entered into.</p>

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

<p>Creditors' Bill—Answer under Oath—Boohs of Account—'Mutilation of—Evidence.</p> <p>1. A book of account undeniably mutilated is unentitled to credit.</p> <p>2. Upon a creditors’ bill filed for the purpose of reaching funds alleged to be due from defendants to a third person, said bill calling for answer under oath as to whether payment had been made by defendants for certain goods purchased by them from such third person, and if so, in what manner, this court holds, that the answer alleging payment is evasive and not responsive to the interrogatory; that the form of the oath makes the whole answer on information and belief, there being no way of distinguishing between the matters so stated, and those of which defendants had knowledge; that the answer is only to be treated as a pleading setting up affirmative matter of defense to be duly proved; that the evidence does not justify the claim of payment, and declines to entcrfere with the decrees in behalf of the plaintiffs.</p>

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

<p>Account—Objections—Jury—Right to Trial by—Bill of Exceptions— Practice—Evidence.</p> <p>1. Whatever ground the party who is called upon to account has, upon which to resist the taking of such account, should be pleaded before the court under Sec. 6 of the act relating to actions of account, and upon an issue lormed on such a plea, he is entitled to a trial by jury.</p> <p>2. Where a party has consented to the taking of an account he can not object to the auditor’s examination of witnesses, books and the like, and inquiries made in order to ascertain the state of accounts between the parties involved.</p> <p>3. If a bill of exceptions does not state that it contains all the evidence in a given case, this court will presume that the decision of the trial court was justified by evidence not shown, if that shown is insufiicient to support the same.</p> <p>4. In the absence of evidence to the contrary, an auditor will be presumed to have been duly sworn.</p> <p>5. In an action involving the settlement of corporate accounts, this court holds, that the result arrived at was in accordance with the respective rights of the parties to the controversy; that the irregularities in the proceedings were consented to by defendant, and that the judgment against him must be allowed to stand.</p>

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

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

<p>Railroads—Viaduct—Tracks—Injury to Private Property—Ordinances —Liability of Second Company—Damages—Evidence—Instruction.</p> <p>In an action brought to recover from a railroad company damages alleged to have been sustained by plaintiffs, by depreciating the market value of certain lots owned by them, by means of the erection of a viaduct and the laying of certain tracks, this court holds, in view of the evidence, and of the fact that the verdict for plaintiffs did not show what portion of the damages assessed were based upon injuries arising from the laying of tracks, and of a misleading instruction touching the measure of damages, given in behalf of the plaintiffs, that the verdict in their favor can not stand.</p>

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

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

<p>Railroads-Negligence-Crossings-Personal Injuries-Evidence-Instructions-Practice-Damages.</p> <p>1. Negligence and due care, and degrees aud comparisons of uegligence, are questions of fact for the jnry, and their determination shonld uot he iutertered with, unless it appears that they have disregarded their duty.</p> <p>2. There is no rule of daiuages in actions brought to recover for the death of young children occasioued by the negligence of others.</p> <p>8. Courts will review the findings where deceased had attained such an age that the value of his life to the next of kin had become the subject of evidence.</p> <p>4. En actions brought for the recovery of damages from a railroad company for the death of two children and iujnries to their mother, alleged to have been occasioned by its negligeuce, this court declines, in view of the evidence, to interfere with the verdicts for the plaintiffs.</p>

Frank Baker, Judge, presiding. This action was brought by appellee by his next friend to recover damages for the loss of his leg, which was crushed by being run over at the crossing of 68th street by some cars of a freight train which was running on appellant’s road.

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

<p>Evidence—Cross-examination—Witness—When Excused from Testi-</p> <p>1. Upon cross-examination a witness may be asked any question tending to impeach his impartiality in a given transaction, and he will not be excused from answering unless he claims the privilege on the ground that he. will, by so doing, expose himself to punishment; and mere disgrace without danger of punishment is not enough to so excuse him.</p> <p>2. In the case presented, this court holds that the trial court erred in sustaining an objection to a question asked a witness upon cross-examination, the same being relevant to the cause on trial, as tending to show whether the witness was under peculiar ' obligations to the party calling him, and that the fact that a certain bargain might have been proved by other witnesses did not cure the erroneous exclusion of testimony offered.</p>

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

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

<p>Practice—New Trial—Appeal.</p> <p>An order overruling a motion for a new trial is not final, and no appeal lies therefrom.</p>

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

<p>Sales—Faihtre to Deliver in Excess of Certain Amount—Damages— Evidence.</p> <p>In an action involving the sale of a lot of solder, the contention being as. to the quantity sold, this court holds, in view of the improper admission ofl certain testimony on behalf of the plaintiffs, that the verdict in their favor can not stand.</p>

<p>Certiorari—Assets of Deceased Persons—Jurisdiction of Probate Court —Appeal.</p> <p>1. The Probate Court has jurisdiction of the person of one who is present in answer to a citation.</p> <p>2. The remedy for the correction of any error in a final order of the Probate Court is by appeal.</p> <p>3. A judgment of the Probate Court touching matters of which it has jurisdiction can not be reviewed by certiorari.</p>

<p>Practice—Preliminary Call—Dismissal—Bill of Exceptions—Amendment—Matters in pais.</p> <p>1. Matters in pais may be introduced into a bill of exceptions by way of amendment, after the term, and after the lapse of the time allowed for presenting and filing the bill, if the court was in possession of sufficient memoranda, or notes, to give definite information as to what the actual proceedings were; and unless the contrary affirmatively appears, it will be presumed that the judge who made the amendment was thus informed.</p> <p>2. A court can have no better source of information than its own record.</p>

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

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

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

<p>Garnishment—Where Amount is Payable upon Certificate of Another— Failure to Produce—Waiver.</p> <p>1. The contingency that will render a debt not garnishable must be one that affects the debt itself, and not the amount of it, or the time or manner of payment.</p> <p>2. Where all that remains to he done is to make such calculations as are necessary to ascertain the amount due, the indebtedness is sufficiently certain for the purpose of garnishment.</p> <p>3. Upon an a ppeal from a judgment against a certain firm as garnishees, it being contended by it that a given percentage of the contract price was not under a contract duly entered into, to he paid the attachment debtors until the engineer of the railroad in question should certify in writing that their work was completed, this court holds that the debt which was owing from the garnishees under the contract referred to was liable to garnishment notwithstanding the fact that at the date of filing its answer the certificate from the engineer had not been presented, and furthermore that the production thereof was duly waived by certain acts of the garnishees.</p>

<p>Sales—Evidence—Weight of—Practice—Judgment.</p> <p>1. In the examination of alleged errors in findings by trial courts, courts of review will be bound thereby unless it can be seen that the same are manifestly against the weight of the evidence.</p> <p>53. Where no question of law intervenes, the finding of a judge in a trial at law, where the evidence is conflicting, stands just as a verdict of a jury where there have been correct instructions.</p> <p>3. This court does not fail to examine the evidence in records in cases of this character.</p>

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

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

Egbert Jamieson, Judge, presiding. A hill was filed by John W. Goetz against his partner, Louis W. lteiss, asking for a dissolution of partnership and a winding up of the firm affairs, the firm being insolvent, the appointment of a receiver, etc. A receiver was appointed, and on the application of the Hnion ¡National Bank it was made a party to the suit with leave to answer and file a cross-bill.

<p>Dirorce—Separate Maintenance—Temporary Allowance—Attorneys' Fees.</p> <p>Upon the facts presented, this court declines to interfere with an order entered in an action for separate maintenance awarding a temporary allowance for support of the wife, and a sum for solicitors’ fees.</p>

<p>Contracts—Steam Heating Apparatus—Guaranty—Evidence—Instructions—Special Findings—Res Adjudícala.</p> <p>1. Where a contract is in writing it is for the court to state its meaning, and it is only where there is a doubt as to its proper meaning arising from the ambiguity of the words or phrases used, that the acts of the parties are looked to for aid in the construction thereof.</p> <p>2. In order that a defendant may protect himself by a previous judgment against the plaintiff, he must show that both suits involved, legally, the same subject-matter.</p> <p>3. In an action brought to recover certain expenditures made for the repairs to steam heating apparatus, defendants, who put the same into the building in question, having entered into a guaranty to keep the same in working order for three years without expense to the plaintiff, this court holds that a certain instruction given can not be complained of and dedines to interfere with the verdict in his behalf.</p>

<p>Insolvency—Receiver—Attorneys’ Fees—Payment of, out of Funds of Fstate.</p> <p>1. It is well settled as a general rule in courts of equity, that where one person institutes legal proceedings for himself and others, and thereby secures a fund" for the common benefit of all, an allowance will be made to him for costs and expenses necessarily incurred.</p> <p>2. Upon a petition filed by attorneys who acted as solicitors for complainant in a bill in behalf of himself and other creditors and stockholders of an insolvent corporation for the appointment of a receiver, and the winding up of the same, that their fees should be paid by such receiver out of the funds in his hands, this court holds in view of the fact that it was greatly to the interest of complainant that the assets of the estate should be husbanded, the allowance of such fees would be unwarranted upon the ground that the taking of such action was a benefit to the estate.</p>

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

<p>Negligence—Unguarded Elevator Shaft—Personal Injuries—Evidence —Subsequent Improvement.</p> <p>1. Where evidence is admissible for some, but not all purposes, the same should not be excluded from the jury. If it is apprehended that they would be misled thereby, the danger should be obviated by proper instructions.</p> <p>2. It is the rule in this State that evidence of the subsequent improvements of that portion of given premises which caused a personal injury, is admissible in actions brought for the recovery of damages therefor.</p> <p>3. In the case presented, an unprotected elevator shaft being the cause of the injury, the plaintiff having been rightfully upon the premises in question, this court declines to interfere with the judgment for the plaintiff.</p>

<p>Railroads — Negligence — Personal Injuries— Crossings — Practice— Trespassers—Pleading—Evidence—Variance.</p> <p>1. A motion in general terms on the part of (he defendant that the jury be instructed to find a verdict for the defendant, upon the ground that the proof varies from the declaration, will not save the benefit of the objection.</p> <p>2. The public has the right to suppose from the long and uniform practice of taking on and letting off passengers at a place other than a regular station, that its accommodation was the design, and that the railroad company had issued a general standing invitation to use the spot in question and so much ground adjoining as is necessary and convenient for the purposes of a station.</p> <p>8. In such case a person may properly wait for a train at any point adjoining the usual stopping place, where it might reasonably be anticipated that any part of the train adapted to the accommodation of passengers would come to a stand.</p> <p>4. Railroad companies are not liable to trespassers for anything short of wanton or wilful negligence.</p> <p>5. In an action brought to recover from a railroad company, damages for personal injuries alleged to have been caused by its negligence, this court holds, that a certain rule as to movement of trains of defendant was properly received in evidence, and declines to interfere with the verdict for the plaintiff.</p>

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

<p>Street Railroads—Negligence—Starting with Sudden Jerk—Evidence— Instructions—Damages—Loss of Time.</p> <p>1. In an action brought for the recovery of damages for personal injuries, alleged to have been occasioned through the negligence of another, it is proper to instruct the jury to consider, in the estimation of damages, plaintiff’s loss of time, there being neither allegations nor direct proof thereof, where the injury suffered necessarily imports such loss.</p> <p>2. In the case presented, this court declines to interfere with the judgment for the plaintiff, for an injury alleged to have been occasioned by the sudden starting of a train of street cars.</p>

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

<p>Guaranty—Debt Incurred by Another—Default of Debtor—Notice—Demand.</p> <p>In case of a collateral continuing guaranty of the payment of debts of uncertain amounts, to mature at periods unknown, and the existence of which depends entirely on the future action of the principal and the guarantee, reasonable notice of default of payment by the principal need not be given to the guarantor, and he is not discharged to the extent of his loss or damage caused by the failure to give him such notice.</p>

<p>Practice—Insufficient Transcript.</p> <p>This court declines to consider the case presented, for the reason that the record filed is not certified to as being a full copy or transcript of the record in the case.</p>

<p>Sales—Lumber Plant—Fraud—Enumerators—Bribery ^-Evidence—Instructions—Practice.</p> <p>1. Only prejudicial errors justify reversals.</p> <p>2. Whether upon the evidence a certain agreement amounted to the abrogation of a previous contract is a question of fact for the jury.</p> <p>3. In an action brought to recover damages for the alleged fraud of the defendant, growing out of the bribery of enumerators chosen by himself and the plaintiff to determine the amount of timber and logs on certain land, to the end that they should underestimate the same, a contract of sale thereof from plaintiff to defendant having been previously entered into, this court declines, in view of the evidence, to interfere with the verdict for the plaintiff.</p> <p>4. Where a jury takes figures from the calculations of counsel on both sides of a case on trial, one of the parties can not complain thereof.</p> <p>5. An instruction requiring the plaintiff to prove his case by a clear preponderance of the evidence is too strongly worded.</p> <p>6. Instructions informing the jury as to what they may or may not infer from the non-production of books and papers, should not be given.</p> <p>7. It would seem that the control of a court over the addresses of an attorney in a given case, is limited to confining him in his opening to what may fairly be anticipated as probably coming in issue during the trial upon the facts as the advocate states them, and in his closing to the evidence which has been put in, and in both, preventing obscenity and profanity, and within very indefinite bounds, restraining license and intemperate speech.</p>

<p>Street Railroads—Negligence—Personal Injuries—Evidence—Instructions,</p> <p>I. Negligence is a question of fact for the jury, and when the evidence is conflicting their verdict is conclusive.</p> <p>2. In an action brought to recover from a street railroad company for personal injuries alleged to have been occasioned by its negligence, one of its trains having collided with the wagon of the plaintiff, this court declines, in view of the evidence, to interfere with the verdict in his behalf. ,</p>

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

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

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

<p>Master and Servant—Negligence of Master—Dangerous Machine— Personal Injury—Assumption of Risk—Pleading — Evidence—Instructions.</p> <p>1. If the plaintiff in a given cause recover a verdict upon a declaration containing any good count, with evidence applicable to it, and correct instructions as to the hypothesis upon which he may recover, the verdict can not be disturbed because of a faulty count; but if the evidence be only such as sustains the faulty count, or if the instructions, either by reference to, or recapitulation of the averments of such count., put the right to recover upon the basis, among others, of such faulty count being proved, then, unless the justice of the verdict upon the whole case be clear, the same should not be allowed to stand.</p> <p>2. Where several counts in a declaration, all good, are referred to by the instruction for the plaintiff, and there is a lack of evidence as to one or more, it devolves upon the defendant to call the attention of the jury to the different allegations of the several counts if he chooses so to do.</p> <p>3. In an action brought by an employe to recover for a personal injury alleged to have been occasioned by his employer’s negligence in failing to provide proper machinery and appliances, this court holds, it not appearing upon what ground the same was based, that the verdict for the plaintiff can not stand.</p>

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

Julius S. Gblnnell, Jndge, presiding. Appellee was a grip driver, and went into the employment of the appellant company under the following contract: “ This agreement witnesseth, that Wm.

<p>Practice—Bill of Exceptions—Failure to Incorporate Papers and Instructions Therein.</p> <p>1. A paper attached to a bill of exceptions after the signature of the trial judge should not be considered.</p> <p>2. Nor instructions so appended instead of being copied therein.</p>

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

<p>Insolvency—Judgment by Confession—Assignment—Attachments—Priority—County Court—Jurisdiction of.</p> <p>1. A creditor, holding the'judgment note oftiis debtor, may avail himself of the benefit thereof, when he sees fit. He may delay until the danger of loss is impending, without sacrificing any advantage.</p> <p>2. Consent by creditors suing separate attachments out of the Circuit Court, that property attached be turned over to the assignee of the common creditor, subsequently appointed by the County Court, gives the latter court exclusive jurisdiction in the adjustment of claims against the property.</p> <p>3. In a controversy involving the priority of certain levies upon property of a common debtor, this court declines to interfere with the decree of the trial court giving the bank in question priority over certain creditors, and placing the latter .upon the level with other unpreferred creditors.</p>

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

<p>Fraud—Mortgage—Failure to Record — Subsequent Indebtedness— Foreclosure-</p> <p>1. The mere neglect to record a real estate mortgage during the period that the mortgagor is incurring other debts, and the fact of giving judgment notes to certain creditors unknown to others, is not fraudulent, in so far as to justify allowing unsecured creditors to follow the proceeds of property upon which the liens of the other creditors were originally based.</p> <p>2. Upon the contention by a creditor of a defunct corporation upon a debt contracted by it, while a certain mortgage upon its property to a person who had previously loaned it money was unrecorded, that it was entitled, having a judgment and unsatisfied execution, to follow the proceeds of the property into the hands of the mortgagee, he having taken possession under the mortgage, this court holds that the acts of the mortgagee, being neither fraudulent in fact or by construction of law, the decree dismissing the complainant’s bill was proper.</p>

<p>Criminal Law—Contempt—Presence of Court—Commitment—Order for —Requisites of—Jurisdiction.</p> <p>1. A contempt is a criminal offense, and a sentence of imprisonment for a contempt is a judgment in a criminal case.</p> <p>2. Such an offense not being punishable in the penitentiary, is a misdemeanor.</p> <p>3. Proceedings of this character should be in the name of the people.</p> <p>4. Where an order for commitment for contempt constitutes the entire record, it is the duty of the court making the same, to set out fully therein in what the contempt consisted, in order that an appellate court may see whether the judgment was warranted.</p> <p>5. The order for commitment of a person guilty of contempt in the presence of the court, should show that the defendant was in court when judgment was entered.</p> <p>6. This court has authority to review judgments of courts of record in contempt cases.</p>

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

<p>Insolvency—Conspiracy—Attorney and Client—Assignment of Errors —Costs.</p> <p>1. Only appellants can assign errors.</p> <p>2. Cross-errors can only be assigned on decrees appealed from.</p> <p>3. An attorney who represented several creditors oE an insolvent corporation procured judgment notes for the claims held by him, and also for a creditor who held, as collateral, the notes of the corporation to his clients, entered'judgments thereon, filed a creditor’s bill, had the corporate assets sold by the receiver appointed therein, and bought in the property himself. The corporate stock was all controlled by one man, who gave the attorney information as to the affairs of the corporation, and whose wife was its principal creditor. It was not shown that the attorney had notice that the claims represented by him were fraudulent. Held, that he was not accountable to the other creditors of the corporation for the property bought bj him, the evidence not sustaining a charge of conspiracy.</p>

Loitm C. Collins, Judge, presiding. In September, 1885, Margaret A. Humble filed her bill in the Circuit Court, setting up that she had been the owner of certain lots which are particularly described, and that while such owner she was induced by false and fraudulent representations of James M. Allen and Henry H. Armstead to convey said lots to said Allen by deed; that said lots were fully worth $2,500; that said conveyance thereof was without consideration; that said Allen…

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

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

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

<p>Practice—Appeal from Justice—Filing Transcript—Jurisdiction.</p> <p>Where an appeal from a justice is taken by filing bond with the clerk of the court and the transcript is not filed ten days before commencement of the term, the court has no jurisdiction to try the cáse at that term, except by consent of the parties.</p>

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

<p>Sales—Attachment—Title—Justification by Sheriff—Evidence.</p> <p>1. Evidence that certain goods had been ordered by plaintiffs and been consigned and shipped to them and that they had examined the goods and were just about to pay the freight when the goods were attached by a creditor of the consignor, is not conclusive that plaintiffs were entitled to the goods in the absence o£ any showing that plaintiffs had paid or agreed to pay for them.</p> <p>2. In such case the court should not take the question of ownership from the jury.</p> <p>3. In order to justify taking goods out of the hands of a third person, under a writ of attachment, it must be shown that the attachment was based on a valid debt.</p>

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

<p>Libel—Imputation of Holding Certain Opinions.</p> <p>The imputation that one holds certain opinions is not libelous.</p>

<p>Master and Servant—Wages—-Written Contract— Mistake—Reformation.</p> <p>1. When parties put their agreements in writing it becomes the exclusive means of proving what they have agreed to, unless it can be shown that there was a mistake in the writing by inserting or omitting words or clauses. The words of the writing being such as the parties agreed upon, neither party can claim that they do not mean what he supposed, even as a defense.</p> <p>2. Upon a bill filed for the purpose of obtaining a certain share of the profits arising out of the construction of a viaduct in conformity with a certain contract in writing, the defendant contending , that said contract-contained a mistake, and praying that the same be reformed, this court declines, in view of the evidence, to interfere with the decree denying such request.</p>

<p>Negotiable Instrument—Note—Set-tff—Evidence.</p> <p>1. While the giving of a note, of itself., unexplained, is not evidence of a settlement of all accounts between the parties, it tends to corroborate testimony of such settlement.</p> <p>2. In connection with other circumstances, without any direct testimony of a settlement, the giving of a note may be evidence of the existence of a demand, subject to no counter-claim.</p>

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

<p>Contempt—Election Law—Statute—Constitutionality of—Jurisdiction.</p> <p>This court has no jurisdiction to review any matters involved in a given controversy, where the constitutionality of a statute is involved.</p>

<p>Personal Injuries-—Damages—Inadequacy—Municipal Corporations.</p> <p>1. The refusal of a new trial to the plaintiff in a suit brought against a municipality to recover for personal injuries alleged to have occurred ' through its negligence, upon the ground that the verdict in his favor was inadequate, will not be disturbed merely on the strength of such inconsistency.</p> <p>2. An instruction in such case setting forth that if the defendant was found guilty, they should assess against it such damages as they believed from the evidence the plaintiff sustained as the direct result of such negligence, can not be complained of. ' The word direct is synonymous with the words “ natural and proximate,” more commonly used.</p>

<p>Appeals—Practice—Assignment of Errors—Absence of.</p> <p>This court declines to consider the appeal in the case presented, there being no assignment of errors.</p>

<p>In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.</p>

<p>Criminal Law—Obtaining Goods under False Pretenses—Cheating— Chech—Absence of Funds.</p> <p>1. The fact, that a check is postdated or payable at a future day, does not take a given case out of the statute touching the obtaining of goods under false pretenses, nor does a merely colorable deposit shield the culprit.</p> <p>2.. The giving of a check is not a representation that the maker has the money in the bank upon which it is drawn, but it is a representation that the check is a good and valid order for its amount; that the existing state of facts is such that in ordinary course the check will be met.</p> <p>3. Both court and jury will take notice of general business usages.</p>

<p>In error to the Superior Court of Cook. County; the Hon. John P. Altgeld, Judge, presiding. ¡</p>

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

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

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

<p>Negotiable Instruments—Nóte—Maturity—Election as to—Trust Deed —Foreclosure—Pleading—Contracts.</p> <p>■ 1. The law does not-permit a -word in a contract to be without meaning where one may be reasonably assigned to it.</p> <p>2. When certain notes and. a deed .of trust given to secure them .are executed at the same time, each note-holder having an interest under said died, the law blends allthe instruments and construes them as one.</p> <p>-3. In a controversy -involving the giving of notes secured by a deed of trust conveying leasehold-interests,it being contended by defendant that the rpmedy of the holders, of certain two and threp years notes was confined to foreclosure, the same not being due by their terms, said holders talcing the ground that the maturity of said notes had been accelerated by their election to declare them due, in conformity with a provision in said deed, this court holds that the action at law upon said notes was properly brought; that it cut no figure that all the creditors involved failed to declare the principal of said deed of trust to be due; that in view of the wording of the special count of the declaration it was doublful if there was any exercise of the power granted, and that the judgment for the defendant can not stand.</p>

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

<p>Assignmen ts—Ait a chin ent—Possession.</p> <p>1. Upon a sale of personal property in the possession of the vendor, a change of possession is essential to protect the title of the vendee against attaching pi; execution creditors of th"e vendor.- If the possession remains with the vendor it is fraudulent per se against creditors.</p> <p>2. An assignee for the benefit of creditors is a volunteer who pays no consideration, and on principle the law can not extend to him any greater lenity than to bona fide purchasers for value. Where the rule operates against, the latter it is also enforced against the former.</p> <p>3. If the property is left in possession of the vendor’s agent the change is constructive only, the possession of the agent being that of the principal; and although a servant agrees, in his master’s presence, to hold possession for the vendee, his possession remains that of his master so far as creditors of the latter are concerned.</p> <p>4. The rights of attachment creditors can not be settled on petition by the assignee in the County Court, where the attachments were levied before ho took possession,</p> <p>5. Upon the petition by an assignee, praying, among other things, that possession of certain property levied upon should be' delivered to him by the sheriff, this court holds, that in view of the fact that the assignee was never in possession of any of the property in question, the County Court had no jurisdiction of the matters presented by the petition, and declines to interfere with the order dismissing the same.</p>

<p>Partnership—Chattel Mortgage on Goods of—Foreclosure—Fraud.</p> <p>1. If one partner and a .third person take into their possession firm property, such act will not constitute a trespass.</p> <p>2. One partner can.not recover for a trespass to the firm property directed or assented to by a co-partner.</p> <p>8. One partner has nothing separately in the corpus of the partnership effects. His interest is what remains after the partnership debts are paid, and an account taken.</p> <p>4. This court holds as proper, the sustaining of a demurrer to the decíaration in the case presented, the same alleging that a co-partner of the plaintiff in collusion with the defendant, wrongfully and fraudulently fore closed a chattel mortgage upon firm property.</p>

<p>Replevin—Sale—Fraudulent Representations—Instructions—Evidence —Res Gestae.</p> <p>1. To entitle one to rescind a sale of goods that has been induced by false and fraudulent statements, the vendor is only required to show the statements made, that he relied upon them to his injury, and that they were false. The intent or motive with which such false representations were made need not be shown.</p> <p>2. An instruction is erroneous which requires the jury to find two grounds before the plaintiff can.recover, when the finding of either ground would justify his rescinding the contract.</p> <p>3. If the vendee of goods falsely states his financial ability and obtains the same on the strength of such statements, the vendor may, on discovering the fraud, retake the goods, and in such case it is wholly indifferent what the vendee’s intention in fact was with reference to paying for the same; his good faith and intention to pay, based on a belief that he will be able to do so when the time of payment arrives, will not prevent the vendor from rescinding, on the ground that the sale on credit was induced by the false representations.</p> <p>4. A vendee may be guilty of fraud which will entitle the vendor to rescind the sale, without any false statements whatever, if, knowing that he is insolvent, he buys goods with the intention not to pay for them. To constitute fraud in such case there must be a preconceived design never to pay for the same.</p>

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

<p>Sales—Real Property—Commission—Recovery of—Agency.</p> <p>In an action brought to recover commissions alleged to have been earned in making a sale of certain real estate in pursuance of authority in writing, this court declines, in view of the evidence, to interfere with the judgment for the defendant.</p>

<p>Master and Servant—Negligence of Servant—Injury to Third Person— Justice—Jurisdiction of.</p> <p>A justice of the peace has jurisdiction of actions involving injuries to personal property.</p>

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

<p>Landlord and Tenant—Recovery of Rent—Lease—Ambiguity.</p> <p>In an action brought for the recovery of rent, this court holds that the evidence justified the finding of the trial court that the lease involved was duly delivered, and that the error therein touching the year in which it was to end, can not affect the right of recovery thereon.</p>

<p>Divorce—Custody and Support of Children—Arrears.</p> <p>1. This court declines to interfere with a decree holding that so long as the custody of the child in question continued with the mother under the original decree awarding the same, her right to the amount awarded by that decree for his support likewise continued.</p> <p>2. A decree in such ease, that children shall not be removed out of the county in which they reside, is in accord with the directions of the Supreme Court, that both parents “ shall have the privilege of visiting and freely communicating ” with the same.</p>

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

<p>Master and Servant—Building Contract—Balance Due—•Extras.</p> <p>In an action brought to recover for extra work in connection with the erection of a building, this court declines, the evidence being sharply conflicting, to interfere with the verdict for the plaintiff.</p>

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

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

<p>Master and Servant—negligence of Master—Failure to Furnish Proper Machinery — Personal Injuries ■— Inspection — Foreign Cars — Latent Jjefects—Evidence—Burden of Proof.</p> <p>1. A master must use diligence in providing and maintaining safe machinery and appliances to be handled by his employes, and he is bound to inspect the cars of other persons or companies which his servants are required to operate in the course of their employment.</p> <p>2. Before it can be said that the master’s negligence in failing to inspect, was the cause of an injury, it must be shown that the fault or defect in the appliance in question was one which a proper inspection would have disclosed, even though, from the nature of the accident, it may be readily concluded that some defect did in fact exist.</p> <p>3. In such cases the burden of proof is upon the plaintiff.</p> <p>4. In an action brought by a servant to recover from his employers for personal injuries alleged to have been occasioned through their negligence, this court declines, in view of the evidence, to interfere with the verdict for the defendants.</p>

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

<p>Res adjudicata—Set-off— D fault—Decree—Affirmative Belief—Mortgages.</p> <p>1. A judgment against a defendant by default is not conclusive as to his right to recover on a claim pleaded by him as a set-off.</p> <p>2. In order to establish as a set-off the plaintiff’s liability to account for property of the defendant, which has been disposed of by plaintiff, it must be shown that the property was of some value.</p> <p>3. Where a defendant in partition flies a cross-bill asking to have a deed given by him declared a satisfied mortgage, and that it be canceled, and that an accounting be had between him and the mortgagee, the court may, if it finds the deed to be an unsatisfied mortgage, determine the amount due thereon, though no other affirmative relief is prayed for by the mortgagee.</p>

<p>Stipulation—Judgment— Waiver—Practice.</p> <p>1. Under a stipulation to the effect that several cases shall be tried hy the court without a jury, and that all cases after the first one tried shall abide the event of that case, both in the Circuit Court and on appeal, judgment should be rendered in all the cases according to the final decision in said first case.</p> <p>2. After being refused judgment on one ground, taking it on another ground is no waiver of the party’s right to judgment on the ground on which it was refused.</p>