Volume 40 — Illinois Appellate Court Reports

<p>Appeal from the County Court of Franklin County; the Hon. W. J. N. Moyer, Judge, presiding.</p>

<p>Dram Shops—Suit by Municipality—Ordinance—Sale without License —Publication—Secs. 3 and 4, Part 1, Chap. 34, R. S.</p> <p>1. The requirements of Sec. 3, Part 1, Chap. 34, R. S., as to the publication of municipal ordinances, is mandatory, and proof thereof is prerequisite to a right of recovery of a fine thereunder, not only as to the fact, but as to the place, of publication.</p> <p>2. This court holds that the certificate of publication in the case presented is defective both in form and substance.</p>

<p>Practice—Instructions—New Trial—Motion for.</p> <p>1. This court will not consider instructions not embodied in the bill of exceptions in a given case, nor reverse on the ground that the verdict was against the evidence, without the preservation therein of a motion for a new trial, the refusal by the court and exception to the ruling.</p> <p>2. It is not enough to have such instructions and motion copied in the transcript by the clerk.</p>

<p>Master and Servant—Negligence of Master—Defective Appliance—Personal Injury—Superior Servant—Orders of—Evidence—Instructions.</p> <p>1. The duty of an employer is only to use reasonable care and diligence in providing machinery, in keeping it in proper condition and in the employment of servants to operate the same.</p> <p>2. The question as to whether there was a specific risk attending a given employment., is for the jury.</p> <p>3. In an action brought by a servant, to recover for injuries alleged, among other things, to have been suffered through the failure of his employer to provide reasonably safe machinery, this court holds, that the machinery employed was reasonably fit for the use to which it was applied, that it was kept in reasonably good condition, that certain instructions given were erroneous, and that the verdict for the plaintiff can not stand.</p>

<p>Real Estate—Conveyance of—Vendor's Lien—Consideration—Agreement to Preach—Breach.</p> <p>1. A vendor’s lien upon real estate is only permitted as a security for the unpaid purchase price, in money or its equivalent, and not for any other indebtedness or liability. There must he a certain ascertained and absolute debt owing for the purchase price.</p> <p>2. If the consideration is for the performance of an act, the non-performance of which gives rise to a claim for unliquidated damages, there is no lien.</p> <p>3. In the case presented, this court holds, in view of the evidence, that there is no ground for enforcing a vendor’s lien upon premises named, and declines to interfere with the decree for the defendants,</p>

<p>Sales—Seal Property—Agent—Recovery of Commission by—Practice.</p> <p>Where the evidence is contradictory, conflicting and irreconcilable, and that produced by the party in whose favor the jury find, sustains the verdict, it will not be disturbed unless it is manifest the jury have mistaken the evidence or been governed by passion or prejudice.</p>

B. R. Burroughs, Judge, presiding. Henry W. Helmkamp. the father of plaintiffs in error, died on February 23, 1879, leaving him surviving his widow, who was bis second wife, tbe plaintiffs in error, children by his first wife, and three other children by his second wife. All these children were minors at the time of his death, and be died testate. His will is as follows: “ In the name of God, Amen.

<p>Appeal from the Circuit Court of Jackson County; the Hon. O. A. Marker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Wayne County; the Hon. E. C. Kramer, .Judge, presiding.</p>

<p>In error to the Circuit Court of St. Clair County; the Hon. B. E. Burroughs, Judge, presiding.</p>

<p>Appeal from the City Court of East St. Louis, Illinois; the Hon. B. H. Canby, Judge, presiding.</p>

<p>Master and Servant—Negligence of Master—Defective. Machinery—Helper—Absence of—Personal Injuries—Assumption of Risk—Evidence,</p> <p>1. In an action brought by a servant to recover for a personal injury alleged to have occurred through the negligent failure of his employer to furnish him with a helper to assist in the use of a circular saw, this court holds, in view of the evidence, that the judgment for the plaintiff can not stand.</p> <p>2. It seems that where machinery is not defective, and there is a difference of opinion between an employer and employe touching the/ safety of operating it in a given manner, and the latter, while contending it to be unsafe, remains at work, by so doing he assumes all risk of injury that may arise therefrom.</p>

<p>Mortgages —Foreclosure—Attorney's Fees.</p> <p>A mortgage may properly provide, in effect, that if suit is commenced to foreclose the same, a certain per cent of the amount found to he due, shall be included in the same decree for attorney’s fees. There is no merit in a contention in such case upon the part of the mortgagee, that such fee does not become due until after suit is begun, and that the same can not, therefore, be included in such decree.</p>

<p>Mechanic's Liens-Verified Statement-Liens, Secs. 4 and 28, R. S. 1887.</p> <p>1. Secs. 4 and 28, as amended, of the act relating to Liens, being construed together, do not obviate the necessity of filing the verified statement provided for in Sec. 4.</p> <p>2. A petition for a mechanic's lien failing to aver the filing of such statement is fatally defective.</p>

<p>Fire Insurance—Action on Policy—Conditions—Title—Arbitration— Practice—Amendment—Continuance.</p> <p>1. The possession of a warranty deed does not justify the inference that a party has a title in fee-simple.</p> <p>2. The “guess ” of a person that he has a title in fee simple, does not amount to a representation to that effect.</p> <p>3. Where an agent fills out for a client an application for fire insurance and states the title to be in fee simple, believing that the possession of a warranty deed amounts to such title, it being shown that the title was not in fee, it- can not he claimed that misrepresentation or fraud was practiced on the' company.</p> <p>4. - An application for fire insura nee is not a part of the contract in so far as to require that it shall be set out in the declaration in an action brought to recover upon a policy.</p> <p>5. If the insurer when sued desires to raise any issue of fact as to representations therein, he must plead specially.</p> <p>6. In the case presented, this court holds that the point advanced by the defendant that suit could not he brought under the provisions of the policy until there had been an arbitration, was not well taken, each party having to act in the selection of arbitrators, and no step having been taken by it to that end.</p>

<p>Master and Servant—Liability of Master for Assault by Servant—Railroad Conductor—Evidence—Res Gestee—Narration—Practice—Conduct of Counsel—Instructions.</p> <p>In an action brought against a railroad company for the recovery of damages for an alleged assault upon, and forcible ejectment of the plaintiff from a passenger car by the conductor of the train in question, this court holds as erroneous the admission in evidence of certain testimony going to show what statements were made by the plaintiff after such ejectment, touching the same, likewise the refusal to instruct the jury to disregard certain improper remarks and statements made by counsel for the plaintiff during his address to the jury, and that the verdict for the plaintiff can not stand.</p>

<p>Appeal from the Circuit Court of White County; the Hon, C. S. Conger, Judge, presiding.</p>

<p>Mortgages—Foreclosure—Improvements and Payments hy Mortgagee —Negotiable Instruments—Note—¡-Fitness—Competency of.</p> <p>1. The statute relating to mechanic's liens being in derogation of the common law must be strictly construed, and no person can have a lien under it without complying with its provisions.</p> <p>2. A lien existing for work and materials in a building on one lot, gives no lien on an adjacent lot, even if in the same inclosure, unie.-s by proper averments, both lots are to be considered as one.</p> <p>3. Where a mortgage does not provide for repairs to be made by the mortgagee, the right to a lien, if any exists for such repairs, must rest on the statute.</p> <p>4. The relief granted in a given case cannot be greater than the allegations of the bill. The allegations, proof and decree must correspond.</p> <p>5. In the case presented, this court bolds, the bill averring no fuels on which a lien could be predicated under the statute, that on the tacts alleged a default and decree pro eonfesso would not authorize a decree finding a lien to exist under the statute, for repairs.</p>

Xu ebbob to the Circuit Court of Madison County; the Hon. William H. Shyder, Judge, presiding.

<p>Practice—Appeal—County Court—Judgment of—Bastardy.</p> <p>An appeal does not lie to this court from a judgment of a County Court in a bastardy proceeding.</p>

<p>Appeal from the County Court of Pope County; the Hon. Geobge A. Crow, Judge, presiding.</p>

<p>Railroads—Liability of for Services Rendered a Servant at the Instance of a Conductor—Ratification—Continuance—Practice.</p> <p>1. It is proper to refuse a continuance on account of the absence of a witness where the affidavit tiled fails to disclose what diligence was used to procure his presence.</p> <p>2. In the absence of express or implied authority from his company, or evidence of subsequent ratification, a railroad company can not be held for medical services rendered an employe at the instance of one of ifs conductors, upon the assertion by him that the company would pay therefor.</p>

<p>Sales—Balance Due—Recovery of—Inferior Quality of Goods—Inspection of.</p> <p>In view of the evidence this court affirms the judgment for the plaintiff in an action brought to recover a balance alleged to be due upon a sale of lumber.</p>

<p>Municipal Corporations—Negligence—Defective Sidewalk—Personal Injuries—New Trials—Sec. 56, Chap. 110, R. S.—Evidence—Instructions —Practice.</p> <p>1. It is the province of the jury in a given case to pass upon the facts, and if no error of law intervenes to affect the finding it should not be disturbed unless unsupported by substantial evidence.</p> <p>2. It is not error to refuse instructions, the substance thereof being embodied in some given for the same party.</p> <p>3. In view of the evidence,.this court declines to interfere with the judgment for the plaintiff in an action brought to recover for personal injuries suffered through the alleged negligence of a municipal corporation.</p>

<p>In error to the Circuit Court of Marion County; the Hon. B. B. Burroughs, Judge, presiding.</p>

<p>Former Adjudication—Deed—Construction of.</p> <p>1. A decree in chancery is as conclusive as a judgment at law, and may be set up in bar of another bill asking for a decree on the same subject, matter.</p> <p>2. In a controversy involving the construction of a clause in a deed, this court construes the same contrary to the contention of the complainant, and declines to interfere with a decree dismissing her bill, there being a complete remedy at law.</p>

C. C. Boggs, Judge, presiding. On the 6th of December, 1871, James Calverly was the owner of lands in Wabash County, Illinois, valued at $24,900, and proposed to divide his estate between his children.

<p>Appeal from the Circuit Court of St. Clair County; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Mandamus—Jurisdiction of Appellate Court.</p> <p>Upon a proceeding for a mandamus to compel a county judge to sign and seal a bill of exceptions in a cause not pending herein, this court holds that it has no jurisdiction in an original action of mandamus; and that it can only issue a writ of this character where it will be in aid of its appellate jurisdiction. The petition should not. be filed nor appearance entered without leave of court.</p>

<p>Officers—Right to Office—Quo Warranto—Alderman.</p> <p>1. Upon proceedings instituted to determine the right of a person named to hold the office of alderman in a certain municipality, two pleas were interposed thereto, setting forth, among other things, that the municipality in question was invested with the power to judge of the qualifications, election and return of its own members, and with the power to determine all contested elections held under its charter, and that it had in fact determined that defendant was duly elected, this court holds that the trial court erred in sustaining plaintiffs’ demurrer to said pleas.</p> <p>2. A municipal charter empowering its council to judge of the election qualifications and returns of its members, can investigate and then judge of the real facts developed by such investigation as to who is elected, and are not absolutely concluded by the face of the returns.</p>

<p>In error to the Circuit Court of Logan County; the lion. George W. Herdman, Judge, presiding.</p>

<p>In eeeoe to the Circuit Court of Vermillion County; the Hon. J. F. Hughes, Judge, presiding.</p>

<p>Agency—Loan on Real Estate—Forgery—Sec. 22, Chap. 83, R. S.— Written Contract.</p> <p>1. The fraudulent concealment referred to in Sec. 22, Chap. 88, R. S., includes only the individual act of the person liable to the action, and not the act of Ms agent or servant.</p> <p>2. In an action brought to recover from loan agents a sum loaned, upon the discovery that the note and mortgage given therefor were forgeries, this court holds that a certain letter, written by them, and the acceptance of the proposition therein contained, did not constitute a contract in writing, but was merely a letter of advice, and declines to interfere with the judgment for the defendant.</p>

<p>Fire Insurance—Foreign Company—Right to Do Business in Illinois—Sec. 22. Chap. 73, R. S., 1887.</p> <p>1. Where an agreement, or the object of it, is such as is declared by-statute to be unlawful in itself, it is void as to all the parties to it, and neither can have the aid of a court to enforce its performance or recover damages for its breach unless the right is expressly given by the statute itself.</p> <p>2. Where the agreement is not unlawful in itself, but is forbidden under certain circumstances, or except upon certain conditions, and the parties alike know or are rightly presumed to know the outside facts which bring it within the prohibition, relief to either will be refused for the reason that they are in pari delicto.</p> <p>8. There is a distinction in cases of agreements made in violation of prohibitory statutes between those which are intended to regulate the conduct of the citizens generally, and those intended to restrain one class for the protection of another; in agreements against the former the parties are in pari delicto, and the courts will not aid eilher parly to enforce them, and in those against the latter, though both parties may be in delicto, yet they may not be in pari delicto and courts may aid the one where they would not aid the o'her.</p> <p>4. This court affirms a judgment for the plaintiff in an action brought to recover upon an insurance policy, the fact being that at the lime the same was issued the company was not authorized to do business in the State, having failed to comply with Sec. 22, Chap. 73, R. S.</p>

<p>In error to the Circuit Court of Morgan County* the lion. Cyrus Epler, Judge, presiding.</p>

<p>Fire Insurance—Policy — Conditions—Breach— Vacancy—Waiver— Scope of Agency.</p> <p>1. One procuring insurance in behalf of a given company, by sending to it the application of a person named therefor, upon which a policy was issued, becomes the agent of the company, and it will be bound by the contract which he made with the applicant, but not necessarily as to waivers and contracts subsequently made by him therewith.</p> <p>2. In an action brought to recover upon an insurance policy covering a building, vacant when burned, this court holds that the evidence does not justify the assumption that the agent in question was authorized to waive a condition therein touching vacancies, after the contract was completed.</p>

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

<p>Appeal from the Circuit Court of. McDonough .County; the Hon. C. J. Scofield, Judge, presiding.</p>

<p>Forcible Detainer—Lease—Erroneous Description—Ambiguity—'Latent —Latent,</p> <p>In an action of forcible detainer, the defendant contending that owing to a lease of the premises in question, the plaintiff was not entitled to possession, the only question being as to the admissibility of extrinsic parol evidence to identify the premises, the same not having been described with certainty in said lease, this court declines, in view of the evidence, to interfere with the judgment for the defendant.</p>

<p>Guaranty—Preservation of Goods in Cold Storage Warehouse—Evidence—Instructions.</p> <p>In an action brought to recover for injury to certain butter stored with defendant, upon its alleged guaranty to keep the same pure and sound, (his court declines, in view of the evidence, to interfere with the judgment for the plaintiff.</p>

<p>Highways—Liability of Commissioners for Damages Arising from the Improper Grading of—Overseers.</p> <p>The work of repairing highways is ministerial; for personal negligence in its performance, the commissioners of highways will be personally liable, if injury results, and what work is done by an overseer as such upon the roads in his district, with the knowledge of the commissioners, must be presumed to have been done with their approval until the contrary is shown.</p>

<p>Appeal from the Circuit Court of Christian County; the Hon. Jacob Fouke, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Tazewell County; the Hon. H. W. Ceben, Judge, presiding.</p>

<p>Administration—Sec. 115, Chap. 3, R. S.—Contempt.</p> <p>1. Under the power contained in Sec. 115, Chap. 3, R. S., to commit at once for contempt, a county court may give a certain time for compliance, commitment to take place upon default.</p> <p>2. In a proceeding in a county court by attachment against an administrator under Sec. 115, Chap. 3, R. S., this court holds that no demand was required in order to establish the administrator’s liability for the amount due; that the judgment established that, and ascertained the amount due, and that it was his duty to pay it without further notice; that a demand was required only for the purpose' of subjecting him to the proceeding herein, and that such demand was sufficient, without stating the amount definitely; that the administrator could not set up the statute of limitations; that the addition of interest was proper, but that the court erred in charging interest at a rate named, after a certain date, and for that reason reverses the order in question, with directions to compute the same at six per cent.</p>

<p>Insolvency—Bank—Inability of Stockholders.</p> <p>Upon a bill filed by depositors of an insolvent bank, praying that the stockholders thereof be required to pay them the amounts due them from said bank, this court, holds, that the decree in a case named did not bar the relief sousht by the complainants herein, they not having been parties thereto; that the stockholders in the present case who were not parties to the case referred to. should be required to contribute to the fund in the same proportion as those who were parties in that case, before the latter should be required to contribute anything in this ease; that complainants are not bound to wait for the settlement of given claims for contribution between living stockholders and the estates or heirs of deceased stockholders, and that the adjustment of such controversies should be left to a suit or suits having that as the main and primary object in view.</p>

<p>Municipal Corporations—Ordinance—Violation—Rules 10 and 11 of Circuit Court—Practice—Advance Costs.</p> <p>1. The Circuit Court has no power to impose upon parties not in default any conditions as to the exercise of their rights under the law that are not imposed by law.</p> <p>2. In an action by a municipality for the violation of one of its ordinances, it is not liable to a judgment for costs made, nor subject to a rule of court requiring payment before they are made.</p>

<p>In error to the Circuit Court of McLean County; the Hon. Owen T. Reeves, Judge, presiding.</p>

<p>Appeal from the Circuit' Court of Coles County; the Hon. E. P. Tail, Judge, presiding.</p>

<p>Appeal from the County Court of McLean County; the Hon. C. Myers, Judge, presiding.</p>

<p>Fire Insurance — Policy of—Conditions — Arbitration—Election to Rebuild.</p> <p>In an action brought to recover upon a fire insurance policy, this' court holds, in view of the conditions thereof, that the submission to arbitration to ascertain the damage, did not amount to an election to pay the loss and a waiver of the right to rebuild or repair.</p>

<p>Appeal from the Circuit Court of Ford County; the Hon. A. Sample, Judge, presiding.</p>

<p>Divorce—Separate Maintenance—Alimony and Solicitors' Fees—Probable Cause.</p> <p>1. The application by a wife pending a suit for divorce or separate maintenance for an allowance for temporary alimony and solicitors’ fees should not be granted where it is shown that she possesses in her own right sufficient means for her support and to defray such fees.</p> <p>2. Such application should likewise be denied upon failure to show probable cause for the relief prayed, or if it appears that she can not succeed in her case.</p>

<p>Insolvency—Fraudulent Sale—Attachment—Replevin—Iistoppel.</p> <p>1. In an action of replevin brought against a sheriff to recover goods levied upon by virtue of attachment, writs, said goods having been purchased by plaintiffs from an insolvent firm, the plaintiffs in the attachment suits contending that said sale was in fraud of creditors, this court holds that the same was fraudulent and that the plaintiffs herein purchased with knowledge of the intended fraud.</p> <p>2. In the case presented. this court holds, that the contention of the plaintiffs that the finding that said sale was fraudulent is unsupported as to certain silks purchased by them from another firm shortly before the levying of the attachment writs, can not be sustained in view of the fact that they stood by and allowed such levy without explaining to the sheriff that the goods in question did not belong to the stock purchased from the attachment debtors, that, there was nothing about, the goods in question to put the officer on notice that such goods did not belong to such stock, and declines to interfere with the judgment for the defendant.</p>

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

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

<p>Contracts—Refrigerator— Warranty—Breach—Evidence.</p> <p>1. What is the proximate cause of an injury is ordinarily a question for the jury; it is not a question of science or legal knowledge.</p> <p>2. It is the duty of one subjected to injury from the breach of a contract to make reasonable exertions to lighten the damage, and if through bis negligence it is enhanced, he must bear the burden of the increase.</p> <p>3. In such case it is for the jury to say whether such person could have lessened the damage, and whether the increased loss or injury was chargeable to his wilfulness or imprudence.</p> <p>4. In an action brought to recover the contract price for building a refrigerator, this court holds that evidence was admissible upon the part of the defendant, going to show the amount lost by him in meats injured, because of the high temperature therein during the time of its use, and by reason of the leakage of ammonia upon them.</p>

<p>Master and Servant—Wages—Money Had and Received—Evidence— Instructions.</p> <p>1. Where the instructions in a given case were proper, the verdict of the jury upon conflicting testimony must be final.</p> <p>2. 'In an action brought to recover money alleged to have been had and received by the defendant for the use of the plaintiff, this court holds, on account of the giving of an erroneous instruction by the trial court, that the judgment for the plaintiff can not stand,</p>

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

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

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

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

<p>Partnerships—Dissolution — Receiver — Duty of— Compensation of— Practice.</p> <p>1. A receiver should, upon taking possession of an insolvent estate, first make a complete inventory of the property thereof.</p> <p>2. He must take proper receipts from persons to whom be makes payments.</p> <p>3. Sworn declarations verifying a receiver’s final account setting forth “ that the same is true to the best of his knowledge and belief,” or “ of his own knowledge except as to the matters therein stated on information and belief, and as to those matters he believes it to be true,” amount to no more than statements that he believes the account to be true. In accounts under decrees in equity, a party must swear peremptorily that he has paid the money in question.</p> <p>4. Vouchers should be filed with the account, and in case there are no vouchers, a positive verified statement should be filed, showing to whom, for what, and when, such items were paid.</p> <p>5. It would seem that in such-instances if the receiver, from not having himself personally made or witnessed the payment, is unable to swear positively to the disbursement, that the positive affirmation under oath of the person who did make the payment should be filed, and this should be supplemented by the sworn statement of the receiver as to his information and belief in the matter. Books of accounts supplemented by the oath of the person keeping them, that they are a regular and full set of books kept in and about the business, are admissible as evidence of the payments therein shown.</p> <p>6. Where objections are filed to an account or any items thereof, the better practice would seem to be, to refer the disputed items to a master to take testimony and report his conclusions as to the same, and it is for the receiver to satisfactorily show before the master that he is entitled to credit claimed by him.</p> <p>7. The burden of proving improper conduct upon the part of a receiver is upon the party alleging the same, and if the charges are not upheld the same must be dismissed at his cost.</p> <p>8. A court should not, without evidence as to proper compensation in a given case, determine and award the compensation to be paid to a receiver, and if it fails to follow such rule, a reviewing court may, upon appeal, set such award aside.</p>

<p>Partnership—Dissolution—Accounting—Practice.</p> <p>1. A bill joining two or more distinct subjects is multifarious; an objection to a bill upon this ground can only be raised by demurrer specifying it as a ground of objection; if not so raised it will be considered waived.</p> <p>2. Either party to a given controversy who may wish to object before the master, and except before the court, to the allowance or disallowance of an item, should require the master to state the evidence and reasons upon which he allows or disallows the same.</p> <p>3. Upon a bill filed for the dissolution of an alleged partnership and for an accounting, it being likewise sought to settle certain questions touching leasehold interests in lots named, this court holds that the decree of the trial court in behalf of the complainant is erroneous, the contract between the parties hereto having fixed the mode by which he was to he reimbursed for advances made to improve the lots in question, and reverses the same.</p>

<p>Fire Insurance—Policy—Premium—Practice—Verdict..</p> <p>1. As to irregular and informal verdicts, the rule is, that if by looking into the record in a given case, the verdict therein can be seen to be . responsive to the issue, it will be sustained.</p> <p>2. A verdict stating, “ We, the jury, find the issue for the plaintiff,” the fact being there were several plaintiffs, can not be complained of.</p> <p>3- Notwithstanding a clause in a fire insurance policy, setting forth that “ this company shall not be liable until the actual payment of the premium,” if the policy is actually delivered without payment, a presumption of a waiver of such clause, and the giving of a short credit for the premium, will arise.</p>

<p>Master and Servant—Negligence of Servant—Injury to Third Person— Master's Liability—Evidence—Pleading—Remittitur.</p> <p>1. Testimony that a certain bill was incurred does not sustain an allegation of payment.</p> <p>2. There being no evidence that anything had been paid for medical services, it was error under a declaration only charging payment, to admit evidence of an amount of indebtedness merely incurred.</p> <p>3. In the case presented, this court reverses the judgment for the plaintiff, permitting her to remit the amount so shown to have been incurred, and take judgment for the balance of the verdict.</p>

<p>Negotiable Instruments—Bills of Exchange—Acceptance—Consideration—Failure of—Pleadings.</p> <p>1. The pleadings in actions on bills of exchange are governed by the common law, and not by the statutory rules relating to promissory notes.</p> <p>2. The first two sections only of Chap. 98, R. S., relate to bills of exchange.</p> <p>3. A total failure of consideration will avoid a commercial instrument resting upon it, as completely as an original want of consideration, and it constitutes a good defense to an action upon the instrument, except as against holders for value, and without notice.</p> <p>4. Accommodation acceptances with notice to the holder, are not within the above rule.</p> <p>5. By the common law, the defense of failure of consideration is admissible under the general issue.</p> <p>6. Where the general issue is interposed, and a special plea which presents no material issue not made by the general issue, and a demurrer to the special plea is sustained, unless "the court rejected evidence of the defense pleaded when offered under the general issue, it is not. material whether the special plea was good or bad.</p>

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

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

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

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

<p>Landlord and Tenant—Rent—Recovery of—Lease—Conditions.</p> <p>1. Neither court nor jury has the right to soften the conditions of a contract or alter its terms, the same referring to a matter about which the parties thereto were privileged to contract.</p> <p>2. The specific tender by a debtor, with acceptance by the creditor, of a sum less than the amount claimed by the latter to be due, constitutes an accord and satisfaction between the parties, where the claim is for an unliquidated amount, or the thing paid or given in satisfaction of a liquidated amount is personal property or securities, something other than money, and not otherwise.</p> <p>3. To amount to an accord and satisfaction, where a sum less than the amount due is accepted by the creditor, he must receive some actual benefits that he would not otherwise have had.</p> <p>4. Conditions in a contract precedent to an increased or diminished liability must be exactly performed or fulfilled before the liability contingent thereon can be enforced.</p> <p>5. Proof of the happening of the event strictly as provided for in the contract, will not be dispensed with although the event has become impossible without the fault of the plaintiff in an action brought thereon.</p>

<p>Receivers—Expenditures—Allowance of.</p> <p>1. A receiver will not generally be allowed to incur liabilities for repairs against the estate in his hands, or be credited with any outlay therefor, which are not made by leave of court first applied for and obtained.</p> <p>2. In cases where it is shown that expenditures for repairs made without permission are very small, or that the receiver acted in good faith and for the best interests of the property intrusted to him, or that it was necessary to act immediately in order to prevent damage, such action may be approved by the court.</p> <p>3. The only terms on which a liability incurred for repairs should be allowed against such an estate, is on proof that the amount claimed is the lowest market price at which the work could be done.</p> <p>4. One dealing with a receiver, who is attempting to charge such property, is bound to see that he has authority to do so.</p> <p>5. Upon an appeal from an order directing the payment to a third person of a sum named for work done upon a hotel, at the order of the receiver thereof, this court holds that the allowance for work done before a certain date, without order of court, was erroneous, and that the evidence does not justify the making of such repairs without such order.</p>

<p>' Appeal from the Circuit Court of Cook County; the Hon. George Driggs, Judge, presiding.</p>

<p>Mechanics' Liens—Leasehold Interest.</p> <p>1. A mechanic employed by a lessee to repair a given building, may in view of rhe intended cancellation of the lease by the lessor for the non-payment of rent, pay the rent, assume the burden of the lease, and assert a mechanic’s lien upon the leasehold interest of the lessee for the improvements made by him.</p> <p>2. A party is not entitled to a mechanic’s lien upon the fee of premises to secure his pay for improvements made thereon at the instance of a tenant having a lease for years.</p>

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

<p>Personal Injuries — Negligence — Contractors Independent of Each Other—Falling Brick—Evidence—Instructions.</p> <p>1. The first requisite in establishing negligence in a given case, is to show the existence of the duty which it is supposed has not been performed.</p> <p>2. It will not be sufficient to allege that a duty existed upon the part of the defendant, and that he violated such duty, but the facts must be stated showing the legal liability; unless he duty results in all cases from the stated facts, the declaration so framed will be bad. The allegation of duty is superfluous, where the facts stated show a legal liability, and it is useless where they do not.</p> <p>3. The law implies that it is the duty of a contractor to so construct his platforms, the same being over a thoroughfare, as to prevent injury through falling objects to persons passing thereunder, and it would seem that the reason for such an implication would be as strong in cases of interior construction, in case of notice that others would be employed under such platforms, in another department of the same work.</p> <p>4. If there be no reason to apprehend injury to any person from the dropping of material from such platform used in interior construction, there is no duty to adopt special precautions to prevent it.</p>

<p>Gambling Contract—Options—Board of Trade—Set-off—Evidence-Instructions.</p> <p>1. It is proper, in a given case, for the jury to consider the course of dealing between the parties to a given transaction in order to enable them to come to a conclusion as to the nature thereof.</p> <p>2. A contract for the sale and future delivery of grain, by which the seller has the privilege of delivering or not delivering, and the buyer the privilege of calling or not calling for the grain, just as they choose, and which, on its maturity, is to be filled by adjusting the differences in the market value, is an option contract in the nature of a gambling transaction.</p> <p>3. In an action brought to recover sums representing margins advanced and profits claimed to have been made out of the purchase and sale of grain upon the Chicago Board of Trade, defendants contending that a balance is due them arising out of certain losses sustained on purchases made for the plaintiff, this court holds that the judgment for the plaintiff can not stand.</p> <p>4. The plaintiff in such case can recover any sum deposited by him merely for his convenience.</p>

<p>Creditors' Bills—Insolvency—Fraud.</p> <p>1. While an insolvent debtor retains dominion over his property, he mav in good faith sell the same, or mortgage or pledge it to secure a bona fide debt, or create a lien upon-it by operation of law, as by-confessing a judgment in favor of a bona fide creditor.</p> <p>2. A creditor always has a right to take every precaution to save or secure his debt, and the fact that he delays until his debtor may be on the eve of bankruptcy, is no argument against the good faith of his acts.</p> <p>3. The return of an execution nulla bona upon the day on which it was issued, will form a sufficient basis for the filing of a creditor’s bill.</p> <p>4. If in such case there are legal assets that might have been reached by execution, it may be a matter for a judgment debtor to set up, or if such legal assets come into the hands of a receiver, or are claimed by a receiver in a case where the legal remedy was not exhausted, the receiver’s lien or right may be made second to executions that were properly issued.</p> <p>5. The filing of a creditor’s bill and the service of process creates a lien on the equitable assets of a judgment debtor, and it gives to the vigilant creditor a right to priority in payment over persons filing subsequent bills.</p> <p>6. Upon proceedings instituted aaainst an insolvent firm, it being contended that certain judgments were confessed in favor of judgment creditors named, under a collusive arrangement to get the property of said firm into the hands of a receiver, for the purpose of delaying and hindering other bona fide creditors, this court holds that there was an actual and full consideration for each judgment rendered; that said judgment creditors were justified in securing the debts due them, and that they were legally preferred by said insolvent firm; that in view of the evidence no liability for the firm debts attaches to a former member thereof; and declines to interfere with the judgment for the defendants.</p>

<p>Contracts—Services Performed for Another—Payment—Presumption— Damages—Practice.</p> <p>1. Where there is no relationship between certain parties, and one of them performs a service for the other, the presumption is, that it is to be paid for, and the burden will be upon the one receiving the service, to show it was agreed to be performed without remuneration.</p> <p>2. The point that damages given in a certain case were excessive, can not be primarily made herein.</p>

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

<p>Creditors' Bills—Practice—Receiver—Appointment of.</p> <p>1. Any irregularity in a jurat may, unless expressly waived, be objected to in any state of a cause.</p> <p>2. A verification of a creditor’s bill setting forth that the party knows the contents thereof, “ that the same are true except as to those matters therein stated upon information and belief, and as to those matters he believes it to be true,” amounts to no moré than a statement that affiant believes the contents of the bill to be true, and is an insufficient verification.</p> <p>3. To justify the appointment of a receiver upon a bill filed under Section 25, Chap. 32, R. S., it must be shown that the cessation from business has been for such time that the court may infer more than a temporary suspension, or facts must be set forth from which it appears that the suspension is more than an interruption of its usual course by reason of some emergency.</p> <p>4. Receivers are not ordinarily appointed at the instance of a creditor until Be has exhausted his remedy at law, for the reason, among others, that to do so would deprive the party against whom the proceeding is, of his or its right to a trial, by jury.</p> <p>5. A simple contract creditor can not maintain a bill to obtain a judgment against a corporation.</p> <p>6. Courts of equity, under legislative enactments enlarging their general jurisdiction to appoint receivers over corporate bodies, proceed with extreme caution.</p> <p>7. The appointment of a receiver for a corporation is an act divesting the company of the control of its property, suspending the exercise of its powers and quite likely a proceeding which will result in its dissolution. A statutory authority by which .one may be deprived of his estate must be strictly pursued.</p> <p>8. The insolvency of a corporation does not, per se, put an end to the power of the company to manage its assets or fix the lien of creditors.</p> <p>9. As a rule the creditors of a corporation must enforce their legal claims at law, and they can obtain relief in equity by creditor’s bill only after their legal remedies have been exhausted.</p> <p>10. The allegation in a creditor’s bill that “ a part ” of a certain amount is now due, can only be taken as a charge that the smallest possible fraction of the amount owing is due.</p>

<p>Administration—Claim by Wife against Husband's Estate—Money Loaned—Limitations—Evidence—Judgments.</p> <p>1. Evidence going to show that a wife delivered to her husband considerable sums o£ money, there being no explanation of her reason for doing so, makes a question for the jury, in proceedings instituted by her to recover the same from his estate upon the ground that such transactions represented loans, as to the truth of such assertion.</p> <p>2. This court will assume a given judgment to have been correct unless the record shows it to have been wrong.</p> <p>3. No written plea of the statute of limitations is required to make it available as a defense on an appeal from a decision of the Probate Court.</p> <p>4. In the case presented, this court holds that the claim in question was barred by the statute of limitations, and that it was the duty of the administrator to insist upon it.</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. Bichard Prbndergast, Judge, presiding.</p>

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

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

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

<p>Negotiable Instruments—Note—Consideration—Failure of—Warranty.</p> <p>In an action brought by the indorsee of a promissory note to recover thereon, this court holds that the evidence introduced by the defendants made no defense thereto, and declines to interfere with the judgment for he plaintiff.</p>

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

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

<p>Master and Servant—Recovery of Wages—Traveling Salesman—Expenses of.</p> <p>Where a contract of service provides for a given salary and traveling expenses, the employer can not subsequently limit such expenses to a given sum.</p>

<p>Master and Servant—Railroads—Negligence of—Personal Injuries— Employe—Crossings—Rate of Speed—Contributory Negligence.</p> <p>1. Persons approaching railroad tracks must look out for coming trains.</p> <p>2. In an action to recover from an employer the pecuniary loss to the widow and next of kin arising from the death of a servant alleged to have been occasioned through its negligence, this court holds as erroneous the giving of an instruction in behalf of the plaintiff, touching among other things the question of damages; that in view of the evidence deceased can not be held to have been in the exercise of ordinary care when killed, and that the judgment for the plaintiff can not stand.</p>

<p>Street Railroads—Negligence—Personal Injuries—Practice.</p> <p>1. In personal injury cases, the questions of the plaintiff’s care and the defendant’s negligence are for the jury to determine.</p> <p>2. In presenting questions of error on the admission or rejection of evidence, it is not proper to group various questions, and ask this court to pass upon them to ascertain if any of them are erroneous.</p> <p>3. Where error is assigned upon the refusal of instructions, failure to argue the same in the brief must be looked upon as abandonment of the error.</p> <p>4. This court will not reverse a case on the ground of improper arguments of counsel, unless it is apparent that the same affected the result of the trial.</p>

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

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

<p>Landlord and Tenant—Lease—Surrender—Deposition—Secs. 26, 28, Chap. 5, R. S.—Practice.</p> <p>1. The terms of a sealed instrument can not he varied by parol.</p> <p>2. A surrender of a lease can not be affected by the act of one party only; the concurrence in some way of lessor and lessee is necessary in order to accomplish such end.</p> <p>3. The party who gives notice that he will sue out a dedimus to take the testimony of a witness upon written interrogatories, after receiving notice that the party to whom the notice was given has elected to take the deposition upon oral interrogatories, should reply with a notice of the time and place where such deposition will be taken upon oral interrogatories in accordance with the statute; he is the party desiring the testimony and should give notice of the time and place for taking the same.</p> <p>4. A motion to suppress a deposition taken upon written interrogatories, should be sustained, where subsequent to the giving of notice of the intention to take the same, the opposite party gave notice of his election to take it upon oral interrogatories.</p> <p>5. Sec. 28, Chap. 51, R. S.,- does not contemplate the issuing of two commissions, one to take the testimony upon written, and the other upon oral interrogatories.</p> <p>6. When the examination is to be upon oral interrogatories, the party desiring the testimony must begin the interrogation. His questions are in chief, and his adversary has the right to cross-examine.</p>

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

<p>Appeal from the Criminal Court of Cook County; the Hon. Arba N. Waterman, Judge, presiding.</p>

<p>Guaranty—Debt of Another—Payments.</p> <p>In an action brought to recover upon a written guaranty of the payment of debts of another to a certain amount, this court holds that the instrument in question was a continuing guaranty applying to any bills within said amount, and declines to interfere with the judgment for the plaintiff.</p>

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

<p>Divorce—Wife from Husband—Adultery—Desertion—Error in Bill as to Date—Amendment—Continuance—Practice—Sec. 37, Chancery Act.</p> <p>1. It is proper to deny a motion for a continuance by a defendant upon the amendment of a given bill, in the absence of a compliance by him with Sec. 37 of the Chancery Act.</p> <p>2. The provisions of said section afford full protection in cases where such amendments result in surprise or disadvantage.</p> <p>3. It is proper to direct that the answer on file in a given case shall stand as an answer to the bill therein amended upon hearing, unless the amendment is of such a nature as requires a specific answer.</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>Landlord and Tenant—Forcible Detamer—Eviction.</p> <p>1. The demise of a building, as a certain number upon a given street, the same to be used for a purpose named, passes no more land than is necessary to the complete enjoyment of such building. The subjacent land passes, and easements appendant thereto naturally and necessarily belonging to the premises.</p> <p>2. Under such lease, no interest in any other building on the same lot, passes to the lessee, and the terms of such lease can not be varied by parol evidence of what was said by the lessor as to the lease including such building.</p> <p>3. An eviction consists in taking from a tenant some part of the demised premises of which he was in possession. An act of a permanent character, done by the landlord in order to deprive, and which had the effect of depriving the tenant of the use of the thing demised, or a part of it, will amount to an eviction.</p> <p>4. An actual eviction suspends the rent but does not terminate the lease, and the tenant may continue to occupy under the lease the part of which he retains possession, and need not pay rent therefor, and in such case the landlord can not maintain forcible detainer against the tenant to recover possession for the non-payment of rent.</p> <p>5. A constructive eviction may he by some acts done with the intention, and which have the effect of essentially interfering with the tenant’s beneficial enjoyment of the premises involved, or some part, thereof; but in order that such acts shall operate as an eviction, they must be of such character as warrant, and are followed by the tenant giving up.,the possession; and rent will not be suspended unless the tenant removes from the premises in question.</p> <p>6. The delivery up of premises by returning the key thereof during the pendency of forcible detainer proceedings, does not, in the absence of evidence going to show that the same was offered and received as a compromise of such suit, operate to terminate the same; the proceeding is to determine the plaintiff’s right to the possession at the time the same was brought.</p> <p>7. In the case presented, this court holds that the complaint was properly signed with the landlord’s name by certain parties as agents, no question being made as to the right of such agents to so sign.</p> <p>8. A plaintiff has the right to pursue his proceeding to judgment, after he has, pending the action, obtained possession, for the purpose of fixing liability on the appeal bond for the wrongful detention of the premises.</p>

Lokin C. Collins, Judge, presiding. A hill was filed in this ease by the appellee, alleging that a pecuniary legacy of $3,000 had been bequeathed to her in and by the last will of Michael Corrigan, deceased, which said will is as follows, to wit: 1, Michael Corrigan, being of sound mind and memory, do make this my last will and testament.

<p>Gaming— Negotiable Instruments — Note—Guaranty—Recovery on— Evidence—Instructions—Practice.</p> <p>1. It is for the jury to decide under the evidence and upon proper instructions, in actions upon promissory notes, whether or not they were given in settling gambling deals upon the Board of Trade.</p> <p>2. In the case presented, this court holds as proper certain modifications of instructions asked in behalf of the defendants and affirms the judgment against them.</p>

<p>Railroads—Negligence—Personal Injuries.</p> <p>1. Railroads, as carriers of passengers, are held to a high degree of diligence; they are bound to do all that human care, vigilance and foresight can reasonably do, consistent with the modes of conveyance and the practical operation of the road, to put and keep it, its appurtenances and instrumentalities, in a good and safe condition.</p> <p>2. A passenger should comply with all reasonable rules and regulations for entering, occupying and leaving a railroad car, and if from disregard thereof he is injured, when he would not have been had he observed them, he can not hold the company for injuries suffered, although its servants by negligence contributed to his injury.</p> <p>3. Where a party has been injured because of the want of ordinary care upon his part, no action will lie unless the injury was wilfully inflicted.</p> <p>4. A person riding upon the coping or footboard of the tender of an engine is not in the exercise of ordinary care.</p>

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

<p>Practice—Appeal.</p> <p>1. Failure to file an appeal bond and have it approved within the time fixed by an order of court allowing the appeal, is fatal thereto.</p> <p>2. This court dismisses the appeal in the case presented, the trial court having approved and ordered filed, nunc pro tunc, as of a certain date, an appeal bond, the bill of exceptions showing no ground for such order.</p>

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

<p>In error to the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.</p>

<p>Warehousemen—Injury to Goods in Store—Recovery for—Statements in Receipts.</p> <p>1. On a second appeal, questions decided in a former appeal in the same case will not be reconsidered.</p> <p>2. The verdict of a jury upon a conflict of evidence in a given case, settles the facts, and this court can only consider objections made to the law laid down by the trial judge.</p> <p>8. This court holds as proper the giving of an instruction touching the degree of weight that should be given the testimony of a witness, he being an employe of defendant.</p> <p>4. Recitals in receipts given by draiunen to warehousemen upon the taking away of goods as to the condition thereof when taken away, are not evidence against the owners thereof.</p>

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

<p>Sales—Grain in Bulk—Quality of—Evidence—Portion of Letter—Collusion—Agency.</p> <p>1. It is proper to admit in evidence a portion of a letter, containing statements against the interest of the writer, he having at hand a letter press copy of the whole of said letter, the person to whom it was addressed, being his agent in a given transaction.</p> <p>2. A charge of collusion between parties named, can not affect an admission by another.</p>

<p>Negotiable Instruments—Judgment Note—Warrant of Attorney—Construction.</p> <p>1. At a given term a court has no jurisdiction to vacate a judgment of the previous term for error in law, but only for equitable reasons, among which want of authority in the attorney entering the same, the defendant appearing, is not one.</p> <p>2. This court, in view of the evidence, affirms an order denying the motion of the maker of a judgment note to set aside the judgment entered thereon, the same being based upon supposed defects in the warrant of attorney and an agreement between the parties that said warrant was to have no effect.</p> <p>8. Any defense against the payee of such note, when he makes an assignment, is good against a judgment entered thereon, for the use of his assignee.</p>

<p>In error to the Circuit Court‘of Cook County; the Hon. Bichard J. Tuti-iill, Judge, presiding.</p>

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

Area H. Waterman, Judge, presiding. In 1888 Henry Schultz, was doing business in Milwaukee, Wisconsin, under the style of “ The H. Schultz Cloak Manufacturing Company,” and was indebted to the Plankinton Bank of Milwaukee.

<p>Railroads—Liability as Carrier of Freight—Loss of Goods—Bill of Lading—Assignment of—Suit Thereon—Limitations—Practice.</p> <p>1. A bill of lading is a chose in action, and an assignee thereof can not maintain thereon a suit in his own name.</p> <p>2. An opinion can not be authority for what is not mentioned in it and what does not appear to have been suggested to the court from which the opinion emanates.</p>

<p>Practice—Evidence—Account Books—Sec. 3, Chap. 51, R. S.</p> <p>1. The absence of entries in an account book will not warrant the assumption that payments testified to by witnesses were not made to the person who kept it, and whose business transactions were recorded therein.</p> <p>2. Such book will not be received as evidence of a negative or to prove cash items.</p>

<p>Master and Servant—Negligence of Master—Personal Injuries—> Recovery for—Fellow-servants—Evidence.</p> <p>1. The question as to whether parties are fellow-servants is a mixed one of law and fact. The facts may be such as to establish as a matter of law that parties are, or are not, fellow-servants; and they may also be such as to leave the question one of fact to be determined under proper evidence, and instructions by the jury.</p> <p>2. , In actions brought for the recovery of damages alleged to have been occasioned by the negligence of employers, all evidence tending to show the consociation of the plaintiffs with other servants, should be admitted.</p> <p>3. Evidence should not be received as to acts of negligence not charged, in the declaration, in a given ease.</p>

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

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

<p>Gaming—Board of Trade—Options—Commission—Suit to Recover— Evidence—Instruction s.</p> <p>1. Whether or not in a given case, deals upon the Board of Trade were gambling transactions, is for the jury to decide in view of all the evidence, and in the absence of error of law their finding is conclusive.</p> <p>2. The facts that the person so dealing never received and paid for, and never delivered any of the products bought or sold, and that his deals would aggregate a large amount, are proper to go to the jury in connection with other evidence, but are not conclusive that such deals were gambling transactions.</p> <p>3. In an action brought to recover a balance on account of commissions and money advanced, claimed to be due from defendant to plaintiffs for certain transactions in grain and produce on the Board of Trade, this court holds that an instruction in behalf of defendant touching the transaction of business upon the board through brokers was properly refused, and declines . to interfere with the judgment for the plaintiffs.</p>

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

<p>Master and Servant—Negligence of Servant—Master's Liability—Street Railroads—Practice.</p> <p>1. Where street cars of two different lines have equal rights at a crossing of.their tracks, the fact that the hind end of the car upon one of them is struck by the front end of the other while passing over such crossing, of itself and without explanation, raises the presumption that the colliding car was carelessly managed.</p> <p>2. Where, in such case, a given car has the crossing, the person in control of an approaching car is bound to so govern the movement thereof, as that whether the first car goes fast or slow, and even if it comes to a dead stop with the rear end still in the cable track, he can stop his car before striking it.</p> <p>3. The court should not, in a given case, intimate that a witness has not answered fairly.</p> <p>4. An attorney should not be rebuked because he is mistaken as to the admissibility of evidence. The trial court is the best judge as to whether an offer of evidence is made in good faith.</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. O. H. Horton, Judge, presiding.</p>

<p>Malicious Prosecution—Probable Cause—Agency—Practice—Evidence.</p> <p>1. A prosecution, terminated by a compromise between the prosecutor and the party charged, is not equivalent to the acquittal which must precede an action for a malicious prosecution. Such acquittal need not be such as to bar another prosecution, but it must be a judicial termination of that one, and if the result of a wilful or negligent failure to prosecute, is still sufficient; but a nolle prosequi by consent, or by way of compromise, or where such exemption from further prosecution has been demanded as a right, or sought for as a favor, is not enough.</p> <p>2. The discharge or acquittal must be by judicial action under such circumstances, as that the party accused has not avoided or prevented judicial investigation.</p> <p>3. A sub-agent under contract with an agent of an insurance company, is not entitled, upon the collection of renewal premiums due the company, to withhold the same on account of a misunderstanding with such agent as to a balance claimed to be due. He should deduct his commission therefrom and pay the balance over.</p> <p>4. In such case the company may maintain against such sub-agent an action on the case to recover such balance, in which action such sub-agent c m not set off anything due him on other matters.</p> <p>5. There is probable cause for a prosecution for embezzlement, where complainant is advised by his attorney that defendant is guilty thereof, and believes him.</p> <p>6. It is always a question for the jury in such case whether such advice was believed, and the motive of the prosecution is only important where the want of probable cause is proved.</p> <p>7. The violation of an agreement between attorneys, to postpone a case, by the attorney for the defendant, who, without informing the magistrate of the agreement, procured a dismissal of the suit for want of prosecution, is enough to warrant a court of equity to enjoin the collection of a judgment at law, such violation resulting in injury.</p> <p>8. This court reverses for excessive damages the judgment for the plaintiff in an action for malicious prosecution.</p>

<p>Contracts—Void as against Public Policy—Corners.</p> <p>1. The law will not attempt to adjust differences which arise out of transactions which it condemns.</p> <p>2. Combinations having for their object the enhancement of the price of articles of prime necessity, as food, for purposes of extortion, are against public policy and void.</p> <p>3. Under the common law as it formerly existed such a combination would have been a criminal offense.</p> <p>4. In an action brought to recover for moneys alleged to have been advanced, and services rendered in aid of such a combination, this court holds that the judgment for the plaintiffs can not stand.</p>

<p>Garnishment—Husband and Wife—Property of Wife—Practice— Judicial Notice.</p> <p>1. By the common law, the money and personal property of a wife, of which she was actually and beneficially possessed in her own right at the time of her marriage, and all such goods or money as might come to her from any source during coverture became the absolute property of her husband and was transferred to him by operation of law, wherever it might be situated.</p> <p>2. A court of one State can not take notice of the law of another State unless such law is proven in the case as any other fact.</p> <p>3. Where the law of a foreign State touching a given point is not proven in a given case, the presumption will be that the common Jaw prevails therein.</p> <p>4. It is to be presumed that the common law exists in States established in territory acquired since the Revolution, where such territory was not at the time of its acquisition occupied by an organized and civilized community, and where the population of the new States upon the establishment of government was formed by emigration from the original States.</p> <p>5. Such view is to be taken as to Dakota.</p>

<p>Practice—Divorce—Desertion—Evidence.</p> <p>1. Exceptions in chancery causes may, and in many instances should be taken to pleadings for scandal, impertinence, insufficiency and the like; and exceptions may be taken to reports of masters and receivers, but it is not necessary to preserve exceptions to the rulings of the court in allowing or overruling such exceptions, all of the evidence in the cause and the decree announced by the court being matters of record.</p> <p>2. It is the correct practice for the chancellor, after the evidence is heard, to regard .no portion of it that is immaterial or illegal, and to decide the case alone on the legal evidence adduced.</p> <p>3. In chancery cases the practice is not to reverse for erroneous rulings in the admitting or excluding of evidence unless it is seen after an inspection of the entire record, that different rulings might have induced a different decree.</p> <p>4. If there is competent evidence in the record sufficient to sustain the decree, it must be affirmed, and this without regard to whether the chancellor may have been right or wrong in his views of the competency of evidence at the hearing.</p>

<p>Contracts—Construction of.</p> <p>Where acts are mutually dependent, suit can not be maintained for a refusal to do one, without showing a readiness to do the other.</p>

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

<p>Mortgages—Statutory Notice—Foreclosure—Limitations—Act of April 4, 1872, Secs, 6, 11.</p> <p>1. Purchasers of real estate are chargeable with notice of what the record discloses in the line of the title of property bought by them.</p> <p>2. Mortgages executed before the passage of the act of April 4, 1872, limiting an action for foreclosure to ten years after the time the right of action accrued, are not affected thereby, rights and liabilities that had accrued before that act took effect being excluded from its operation, whether the cause of action on such right or liability accrued before or after that act took effect.</p> <p>3. Upon a bill filed to foreclose mortgages, defendants contending that under Sec 6 of said act the right of foreclosure is barred, this court holds that no statute that, does not operate upon the money demand which the mortgages were made to secure can be set up, and the money demanded being in such shape that no statute of limitations covered it, only the lapse of such time as would raise the common law presumption of payment would be such bar, and that the decrees for complainant can not be interfered with.</p>

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

Elliott Anthony, Judge, presiding. An action of assumpsit was brought by appellees against appellant in the Superior Court of Cook County. The return by the sheriff was that the summons was served on the appellant by delivering copy to W. H. Sinclair, president and director thereof.

<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. Julius S. Gtíirrell, Judge, presiding.</p>

<p>Morigages—Foreclosure—Liens—Pleading.</p> <p>1. The allegations and proofs in a given case must correspond, and a party will not be entitled to relief although the-evidence may establish a dear case in his favor, unless there are averments in the bill to support the case made by the evidence.</p> <p>2. A deed of trust and the notes accompanying it, the same being given as security for what might become due under a certain contract, amount in legal effect toa mortgage to secure future advances, and as against the parties giving' the same, the party to whom they were' given may recover thereon whatever may be finally due upon such contract, and no more.</p> <p>3. In an action to foreclose the deed in such case, the proceedings should not be based upon such deed as though it were given for a real debt; a party is simply entitled to the measure of relief shown to be due him, upon a true statement of his case.</p> <p>4. In such case such party should bring suit in his own name or he may join the trustee therein with him, as a co-complainant, or make him a defendant., at his election.</p> <p>5. This court holds that a party named should not be required to wait until the litigation growing out of the complications in which he had no part is brought to a close, before recovering under his mortgage.</p>

<p>Street Railroads—Negligence of—Personal Injuries—Relation of Passengero *</p> <p>A street railroad company is only liable for gross negligence, implying a wilful or wanton injury, where a person is injured while attempting to board a car in motion.</p>

<p>Master and Servant—Negligence of Master—Personal Injuries—Smooth and Slippery Floor—Promise to Change—Contributory Negligence—Evidence—Practice.</p> <p>1. Only experts are competent to speak as to the kind of floor from which a given machine should be operated, or as to whether a servant's methods in doing a given work, were negligent.</p> <p>2. Complaint to the foreman under whom a servant works, of a dangerous appliance, is proper, and upon his promise to repair or replace the same, the servant has a right to rely.</p> <p>3. Remaining at work about fifteen days after a promise to repair a slippery floor, is not such an unreasonable length of time as to charge a servant with knowledge that there was no intention to change the same.</p> <p>4. Evidence that the defective agent was changed after an accident, should not be received.</p> <p>5. Upon which side the preponderance of the evidence is in a given case, is a question for the jury.</p>

In erbob to the Circuit Court of Cook County; the Hon. O. H. Hobton, Judge, presiding.

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

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

<p>Mortgages—Foreclosure—Bill of Review.</p> <p>1. A pleading is to be taken most strongly against the pleader on demurrer, and it is only facts well pleaded that the demurrer admits.</p> <p>2. A bill in the nature of a bill of review filed to set aside a decree of foreclosure, the. same alleging a person named to be trustee for complainant as to the title of certain real estate, should state, how the trust arose. In the absence of such information such bill can not be maintained.</p> <p>3. A bill of this character may be filed by one who has a title or a right which has been injuriously affected by a former decree.</p> <p>4. In the case presented, this court holds that complainant’s allegation of the acquirement of the mortgagor’s interest and the legal title, cannot avail him; that the bill is vague, indefinite and uncertain in all its allegations; and declines to interfere With the decree for the defendant.</p>

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

<p>Municipal Corporations—Streets and Alleys—Ground beneath the Surface—Injunctions.</p> <p>1. All statutes authorizing or legitimating acts and obstructions upon highways, which would otherwise be nuisances, are to be strictly construed.</p> <p>2. In great cities the space under the surface of streets and alleys, as well as the surface, is held by the municipalities in trust for the use of the public, particularly where the fee of public streets and alleys is vested therein.</p> <p>3. The occupancy of such underground space for private uses and purposes, to the exclusion of the public, is an obstruction of such street or alley and may be a nuisance.</p> <p>4. A permit given by the Board of Public Works of a municipality to a private individual to use space under a street or alley, may be revoked by it whenever, in its judgment, the public interest demands it.</p> <p>5. The rights of the public in streets and alleys are not to be presumed, upon mere inferences, to have been lost or surrendered; any person claiming a right to the exclusive use and occupancy of any portion thereof must make out his claim with clearness and certainty, in order to be sustained therein.</p>

<p>Agency—Sale of Real Estate—Recovery of Commissions—Evidence— Instructions.</p> <p>1. An instruction having no basis upon evidence introduced should be refused.</p> <p>2. Whether in a given case the owner of real estate wrongfully broke off a trade which his agent had worked up and which the proposed purchaser was ready, able and willing to carry out, is a question of fact for the jury.</p> <p>3. The fact that the owner in such case does not perform his duty can not cut off the claim of the agent to compensation.</p> <p>4. Compensation is earned by an agent when a purchaser is found who is ready, able and willing to take the property upon the terms fixed by the owner. The completion of the sale when the broker is only employed to find a purchaser devolves upon the owner, and whether the proposed purchaser has ever become bound or not, makes no difference if he is able, ready and willing.</p>

<p>Negotiable Instruments—Note—Practice—Insolvency.</p> <p>1. The legal title to promissory notes in this State, can not be transferred by a separate instrument.</p> <p>2. Interest upon a note due upon demand, begins to run from its date.</p> <p>3. It is proper to bring suit upon a note in the name of its payee for the use of his assignee, when he becomes insolvent after the receipt thereof.</p>

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

Kirk Hawes, Judge, presiding. « Bill, filed hy a corporation of Indiana, complains of the defendants, appellees, and says that about the 29th day of July, 1887, complainant and defendants entered into a contract in writing, by which complainant licensed the defendants to construct a certain system of cold storage and refrigerators, secured to complainant by letters patent, in consideration of which license the defendants promised to pay to the complainant twenty-five cents…

<p>In error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Contempt—Order of Court—Failure to Obey—Practice.</p> <p>1. The imposition of a fine for contempt, is the rendering of a judgment in a criminal case, and the mode provided by law for obtaining a review in such a case is by writ of error and not by appeal.</p> <p>2. A joinder in error, is a waiver of the objection that the case presented is brought before this court by appeal, instead of by writ of error.</p> <p>3. A witness will not be punished for contempt for failing to attend as a witness in a civil case unless his fees have been paid or tendered.</p> <p>4. A party made a witness by his adversary is as much entitled to fees as a condition precedent to creating a duty to attend, as a third person.</p> <p>5. Orders on which process for contempt may afterward issue, should be personally served.</p> <p>6. It seems that where, during the progress of a suit, a person is ordered by the court to appear before a proper officer to testify as a witness, he will have no claim for fees.</p>

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

Kirk Hawes, Judge, presiding. The declaration in this action was the ordinary form in assumpsit upon a negotiable promissory note, with count for first indorsee against makers and the common counts. Held: to this extent, that before judgment entered plaintiff must surrender, or offer to surrender, certificates of stock in question. 2.

Elliott Anthony, Judge, presiding. Suit was brought by the appellee against the appellant upon five cheeks, purporting to be drawn by the Western Union Telephone Company upon the Northwestern National Bank.

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

<p>Practice—Verdict—Evidence.</p> <p>1. A complaint that a witness in a given case was not sworn, can not be primarily made herein.</p> <p>2. Nor in the trial court after verdict, where the fact was known to counsel before the case was given to the jury.</p>

<p>Insolvency—Preference.</p> <p>In the case presented, this court holds as erroneous an order declaring a certain judgment void as a preference, and that the lien thereof and the execution thereunder must be allowed to stand.</p>

<p>Practice—Service of Process—Sheriff’s Return—Failure to File Declaration.</p> <p>1. The sheriff’s return is conclusive as to the service of process upon a . given defendant.</p> <p>2. The omission to file a declaration in a given case is fatal.</p> <p>3. The filing of a blank form of a declaration is of no avail. <</p> <p>4. In the absence of a declaration from the files, the presumption will be that none was filed.</p>

<p>Sales—Corporation—Power to Make Contract.</p> <p>In an action brought to recover for the failure of defendant to deliver certain glass under a contract duly entered into, it contending that it had no power to enter into the same, this court declines, in view of the evidence, to interfere with the judgment for the plaintiff.</p>

<p>Landlord and Tenant—Judgment by Confession—Setting Aside of. '</p> <p>1. A judgment for plaintiff in a given action will not be set aside in order that the defendant may maintain a mere cross-action.</p> <p>2. This court declines to interfere with an order of the trial court, overruling a motion, to open a judgment by confession, entered in pursuance of a power of attorney, contained in a lease for the amount of rent due thereunder.</p>

Geoege Deiggs, Judge, presiding. This was an action to recover the pecuniary loss claimed to have been sustained by the next of kin of William Des Lauriers, an infant of the age of three years, who was run over by an engine belonging to appellant. It appeared that upon the day on which the accident occurred, a brother of Willie took him and went a few blocks toa feed store, and upon his return left him with a sister, Alida, about ten years of age.

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