Volume 41 — Illinois Appellate Court Reports

<p>Attachments—Practice—Service of Process.</p> <p>1. Whether a return of service on a defendant in a given case was good or bad, cuts no figure where he appears and pleads.</p> <p>2. An attachment being in aid, the defense to it, and the principal action, are to be made concurrently, and not the latter after the failure of the former, as in original attachments under Sec. 27 of the Attachment Act.</p> <p>8. Being in court more than ten days before the term, if defendants wish to defend the principal action they should plead to it before the time expires.</p> <p>4. An appearance entered upon the second day of a given term, is only equivalent to service upon that day, and the party so appearing is not required to' plead at that term.</p> <p>5. This court holds in the case presented, that a judgment against a certain defendant was premature; that the same is a unit and must be reversed as to all, and that the error in the rendering thereof was not waived by declining the offer of the court to let said defendant in on an affidavit of defense, and that she had a legal right to defend without terms.</p>

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

<p>Agency—Sale of Real Estate—Recovery of Commissions—Parties— Practice Act, Sec. S3.</p> <p>1. Where an action is wrongfully brought against several persons, there being no cause of action against one of them, there may be a discontinuance as to him, and the merits may be passed upon as to the others.</p> <p>2. In such case it is proper to give judgment for the defendants where such step is not taken by the plaintiff.</p> <p>3. A court is not bound to instruct the plaintiff in such case as to the proper procedure, nor require him to do the proper thing.</p>

<p>In erbob to the Criminal Court of Cook County; the Hon. Abba H. Waterman, Judge, presiding.</p>

<p>Mortgages—Bill to Redeem—Pleading—Practice.</p> <p>1. In chancery a complainant must have relief, if at all, in accordance with the allegations of his bill.</p> <p>2. Minor discrepancies, not changing the substance, or where the relief granted is less than claimed, may be overlooked, but not to grant relief greater than the claim, and when allowable, leave to amend should be obtained and acted upon to obviate objections on that score; but a sworn bill on which an injunction issues, is not amendable as of course.</p> <p>8. Upon a bill in effect to redeem from certain mortgages, this court holds that the decree entered thereon is wrong in permitting redemption upon more favorable terms than the bill asked for; that a cross-bill filed by persons named should have been dismissed without prejudice, instead of for want of equity; and reverses the decree with directions as to the proper course to pursue.</p>

<p>N gotiable Instruments—Note—Duress.</p> <p>1. In order, in an action thereon, to justify the defense that the makers of a note were induced' to execute the same by means of threats and through .fear, it must be shown that the threats were such as would naturally excite such a fear as would overcome the will of a person of ordinary courage; and such fear must be grounded upon reasonable belief that the person who threatens has at hand the 'means for carrying his threat into present execution.</p> <p>2. Where the party making the threat is not, and is not represented to be, in any position, and has no means for carrying out his threat other than such as are possessed by all members of the community—where the liberty of the person against whom the threat is made is in no wise restrained, and the threatener has made no complaint, has no warrant, and is not represented to have, and neither has, or appears to have at hand or within control, any means for carrying into execution his announced purpose, mere threats of arrest do not constitute duress.</p>

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

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

<p>Railroads—Negligence of—Personal Injuries of Third Persons—Liability for—Special Findings—Practice.</p> <p>1. The inconsistency between a general verdict and special findings that will authorize a judgment on the latter instead of the former, must be irreconcilable. The special findings must be of facts which exclude every theory which would sustain a judgment for the plaintiff.</p> <p>2. In order to override the general verdict the special finding must be of a controlling fact; the finding of a mere evidentiary fact, which, standing alone or considered in connection with other such facts would warrant an inference contrary to the general verdict, is not sufficient.</p> <p>3. Motions for new trial and for judgment non obstante are inconsistent with each other, and should not be pending at the same time, and the proper order of proceeding is to submit the motion for judgment non obstante first; there being a motion for new trial pending, it is proper to withdraw it for the purpose of having the motion for judgment heard and determined, and such withdrawal will not be treated as an abandonment or loss of the right to a new trial.</p>

Biohard S. Tuthill, Judge, presiding. Charles Hohmann, being the lessee from May 1,1888, to April 30,1893, of the lower part of the premises known as 68 Western avenue in the city of Chicago, brought an action against the city of Chicago to recover the damage done, as he claimed, to his leasehold interest, by obstructions to his premises, caused by the construction of the viaduct at Kinzie street and the approaches thereto.

Elliott Anthony, Judge, presiding. It appeared upon the trial of this cause that appellee, desiring to supply one Bobinson with $150, told one Johnson to go to appellant and get the money from him. Appellee testified that he told Johnson to say to appellant, that he, appellee, would pay the money out of the first money that came in.

Lokin C. Collins, Judge, presiding. In this case it appeared that one Fred McDougald, in his lifetime, was a switchman, and a member and policy holder (No. 2,271) in the Switchmen’s Mutual Aid Association of North America, under which policy, upon his death, there was payable $800; that on February 7, 1889, the insured was killed at Cook county; that the appellant is the mother of the assured and his only heir at law, he being single and unmarried at the time of his decease.

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

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

<p>P ractice—Evidence.</p> <p>1. It is improper to allow written evidence of a damaging character to go to the jury after the arguments are closed, and without the opposite party having an opportunity to examine the same, or offer anything in explanation or rebuttal thereof.</p> <p>2. If the cross-examining counsel in a given case, after patting a paper in the hands of a witness, asks only as to its identity, his adversary will have no right to see the same; but if the same be used for the purpose of refreshing the memory of the witness, or if any questions be put regarding its contents, a sight thereof may then be demanded.</p> <p>3. The marking of such paper as an exhibit in the presence of the opposite party by the stenographer in the case, does not operate to make the same evidence, or require the opposite party to then enter an objection to its being so marked.</p>

Geobge Deiggs, Judge, presiding. The Circuit Court sustained a demurrer to the declaration in this action, consisting of the following counts: Whereas, heretofore, on, to wit, the 10th day of June, 1884, said defendant then being a stockholder and director in a corporation known as the Illinois Wagon Company, which corporation was then lately organized under the laws of the State of Illinois, and its stock then 'being placed upon the market, said defendant then being…

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

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

Henry M. Shepard, Judge, presiding. ¿ Inez L. Parker filed her hill in the court below, setting forth that in June, 1852, ¡Ralph and Franklin Little, as executors of ¡Noah Bnlkley, were the owners of block 56 in the original subdivision of section 7, township 39 north, range 14 east, in the city of Chicago, and on the 13th of June acknowledged a subdivision of said block, which was filed in the recorder’s office on the 15th day of June, 1852; that said subdivision was into…

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

<p>Forcible Entry and Detainer—Written Instrument—Parol Evidence.</p> <p>1. Where a deed, purports to convey the interest in a piece of property, which from the terms used to describe it can have no existence, it can not be aided by parol.</p> <p>2. In forcible entry and detainer proceedings, the notice and complaint should describe the premises, properly, instead of following an erroneous description in the lease. Upon trial it can be shown that the defendant entered into the premises under the lease and paid rent therefor.</p> <p>3. Property wrongfully withheld is to be ascertained by the judgment of the court, and restitution thereof enforced by its process, and a judgment should not be rendered for the restitution of premises by an impossible description, and if rendered, can not stand.</p>

<p>Trespass Quare Clausum Fregit—Possession—Mesne Profis.</p> <p>1. In all cases of disseizin, the owner may maintain trespass if the entry was made while he was himself in possession. But damages will bd restricted to the first eptry unless the plaintiff make a re-entry upon the land before action brought. After the disseizee has returned, he may have an action of trespass for the intermediate damages, or mesne profits, during the time of the tortious dispossession.</p> <p>2. In an action for mesne profits, although in form trespass quare clausum fregit, the fact being that the plaintiff was not in, or entitled to, possession at the time of the wrongful entry, but during the continuance of the trespass became entitled thereto, and had. recovered judgment for the possession, and had been put in possession by the sheriff, this court holds, that the plaintiff having obtained judgment and made actual entry before the bringing of her suit, was entitled to recover such profits.</p>

<p>Master and Servant—Railroads—Negligence of—Proximity of Switching Post to Track—Projecting Bolt Heads on Engine—Personal Injuries— Assumption of Risk.</p> <p>An employe can not recover for a personal injury received in the course of his employment, after he has become aware of the defective condition of the machinery used therein, unless he has been induced to remain through his employer’s promise to repair.</p>

<p>Building Contract—Balance Due—Damages—Delay—Architecf s Certificate.</p> <p>1. Parties are not bound where an arbitrator empowered to act in a given case declines to do so.</p> <p>2. Where an enumeration oE specific matters is followed in a contract by general words or phrases, the latter are held to refer to the same kind of things or matters as those specified.</p> <p>3. Where no time is fixed by a building contract, within which certain work is to be finished, it is implied that it shall be done within a reasonable time, and that the owner will so arrange with reference to other work, that the contractor therefor may complete it within such reasonable time.</p> <p>4. In an action brought by building contractors to recover abalance claimed to be due and damages alleged to have been sustained on account of delays arising through the defendant’s negligence, the latter contending that the architect employed was the final arbiter between the parties on all questions of dispute, and that his certificate as to amount due for work, as well as for damages, is conclusive, this court holds, in view of the evidence, that he had no authority to determine the claim for damages because of delay; that the trial court was warranted in finding that he refused to consider the question, on the ground that it was outside his jurisdiction; and declines to interfere with the judgment for the plaintiffs.</p>

Loein C. Collins, Judge, presiding. John H. Kassing filed his bill in the court below setting forth that about the first of September, 1876, he was the owner in fee simple of lots 4, 5 and 9, in block 14, in Hewbury’s addition to Chicago, subject to a mortgage to secure the payment of about $10,000, with interest thereon at the rate of nine per cent per annum, payable semi-annually; that at said time he was indebted to different people, which indebtedness he had not at that…

<p>Attorney and Client—Services Rendered—Recovery for—Evidence— Instructions.</p> <p>1. Instructions should he concise, and briefly present the point of law alone on which the party relies. All useless circumlocution and surplusage should be omitted.</p> <p>2. In an action brought by attorneys to recover upon a written contract providing for their compensation for certain services, it is improper to allow evidence to be introduced upon the part of the defendant going to show that other attorneys gave their professional attention to the same matter in his behalf, it not appearing that the labors of the plaintiffs were thereby lightened.</p> <p>3. In an action to recover upon a contract of service in writing, the question as to what the plaintiff was employed to do, should not be left by instructions, hypothetically, to the jury.</p>

<p>Attorney and Client—Fees—Recovery of.</p> <p>1. Upon a petition filed by an attorney for the enforcement of an alleged agreement by certain heirs that for services rendered he should receive an heir's share of any sum that might be recovered, the defendants contending that the agreement was for a reasonable compensation, this court holds that the finding of the chancellor on the facts is binding on this court; that a court of law but not of chancery is open to the petitioner in which to recover'a reasonable compensation; and declines, the evidence being conflicting, to interfere with the decree dismissing the same.</p>

<p>Injunctions—Judgment—Issuance of Execution on and Collection of— Practice—Appeal and Error.</p> <p>1. While it is a fundamental principle of law that no person shall be condemned, or cast in any litigation without having had an opportunity to be heard, where he has once been fairly and fully heard, the right to appeal rests upon no actual equity, and the fact that a person should by some misfortune be deprived of an opportunity to take an appeal, is a matter different in its nature from one where he was deprived of an opportunity to be heard at all.</p> <p>2. To hold that all orders entered by the Circuit and Superior Courts of Cook County which do not appear in the Law Bulletin, and of the entry of which no previous notice has been given the parties, are irregular and maybe set aside, would be error.</p>

<p>Railroads—Negligence of—Personal Injuries—Statute of Canada— Actions, Local and Transitory.</p> <p>I. Actions ex delicto for injuries to the person or to personal property, are by the common law, transitory in their nature, and the venue may be laid where the plaintiff or defendant resides at the time of instituting the action. Actions relating to land are ordinarily local.</p> <p>2. Whether the wrongful or negligent act causing the injury is one which entitles the injured person to an action, will depend upon the law of the State or country in which the injury is received.</p> <p>3. Such injuries as might be redressed by action of the common law, will he redressed by action in this State without proof of what the law of the State where the injury occurred is, it being presumed that the common law exists in the foreign State or country, un'ess the contrary is shown.</p> <p>4. When the right to recover depends upon a statute of the foreign State or country, the action is not less transitory than when the right of action is given by the common law.</p> <p>5. The statute of the foreign State or country giving the right of action, need not be precisely and in all respects like the statute of the State in which the action is brought. It is sufficient if the policy of. the two statutes is similar, and if they are founded upon the same principle, and give substantially the same right of action for the redress of similar wrongs.</p> <p>6. It makes no difference that the nominal plaintiff may he one person in the State in which the action is given, and another person in the State in which the action is brought, provided the action, in whosever name it is to be maintained, is seeking a similar remedy,</p> <p>7. The fact that the statute of the foreign State does not require the amount recovered to be distributed as is required by the statute of this State, cuts no figure, where, without any change in the machinery of our courts, or in the procedure of our trials, the provisions of such foreign statute, may be carried out.</p> <p>8. The fact that in such case the statute of this State limits a recovery to a certain sum, and the foreign statute leaves the amount to be fixed by the verdict of a jury, is not a difference that affects the right to prosecute the action.</p> <p>9. Our statute does not limit by such provision the right of recovery here, upon (he action given by the Canadian statutes touching personal injury cases arising through the negligence of railroad companies.</p> <p>10. In an action brought by an administrator to recover damages for the killing of his intestate in Canada, through the alleged negligence of defendant, a railroad company, this court holds that the Canadian statute giving the right of action upon which recovery is sought is not penal; that such statute does not differ so materially from that of this State that to enforce it would be a violation of our own State policy, and that the instruction to find for the defendant was erroneous.</p>

<p>Bogs—Recovery for Bite of—Evidence—Instructions.</p> <p>In an action brought to recover for an injury sustained through the bite of defendant’s dog, this court holds, in view of the giving of an erroneous instruction in behalf of the plaintiff, that the judgment in her favor can not stand.</p>

Murray F. Tuley, Judge, presiding. Appellant filed in the court below his bill for an accounting in respect to certain alleged partnership transactions between him and appellant. Appellant answered, denying the existence at any time of a partnership, blit expressed a willingness to account. The cause being referred to a master, testimony was taken before him which, together with an account by him stated, he reported to the court.

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

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

<p>Insolvency—Trust Fund—Identity.</p> <p>Upon a petition praying that the receiver of an insolvent be ordered to pay a certain sum from funds in his hands, on the theory that the sum in question was no part of the fund to be distributed to creditors, but was a trust fund, this court holds, that notwithstanding the fact that the identity thereof is gone, the order directing such payment must be affirmed.</p>

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

<p>Licenses—Beal Estate Broker—Eailure to Procure—Commissions— Suit to Recover—Practice Act, Secs. 74-5."</p> <p>1. This court has appellate jurisdiction only, and can not acquire jurisdiction over the records of inferior courts by agreement of parties. A stipulation that the record filed, being in a given case the bill of exceptions and appeal bond only, shall constitute the only record necessary to be filed, can not confer jurisdiction upon this court.</p> <p>2. A case can not be brought to this court under the Practice Act, Sec. 74, until final judgment thereon has been entered in the court below.</p>

<p>Corporations—Appellate Court—Jurisdiction.</p> <p>1. While this court has no jurisdiction where the validity of a statute is involved, in a case where the claim or defense is under a statute, it must determine expressly or tacitly whether such statute exists.</p> <p>2. The fact that the certificate of the incorporation of a corporation was not filed with the recorder of a given county until after the commencement of a suit in which it is interested, does not subject the validity of its organization to collateral attack.</p> <p>3. A court of equity can not compel one man or a number of men to deal with another, either by direct commandment or by enjoining several agreeing among themselves with whom they will deal.</p> <p>4. Nor force a member upon a voluntary association.</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. John P. Altgeld, Judge, presiding.</p>

Mübbay E. Tetley, Judge, presiding. June 17, 1890, Samuel W. Joy filed a bill in the Circuit Court against Alfred J. Stearnes, alleging the existence of a partnership between him and said Stearnes, praying for an accounting, for the appointment of a receiver, and for an injunction restraining the defendant from collecting or receiving partnership debts or money. Summons was served on the defendant June 18th.

Frank Bakek, Judge, presiding. The declaration in this case set forth that all of the plaintiffs and defendants were by occupation and profession stenographers, and were members of an organization known as the Chicago Law Stenographers’ Association, which association had adopted a schedule of rates, which were reasonable, and for more than fifteen years have been the established rates among law stenographers, and had been and are now, recognized as reasonable and established…

Fbank Bakes, Judge, presiding. In this case it appeared that leading into the south branch of the Chicago river, in the city of Chicago, is the Santa Fe slip, so-called. On the east side of this slip and extending from a point near the river bank is the Santa Fe elevator. On the west side of the elevator, next to the slip, are nine chutes about thirty feet high, by which grain vessels arc unloaded.

Richard W. Clifford, Judge, presiding. Complainants filed their bill setting forth that they are the executors of the will of Henry Schubart under letters issued December 3,1887; that part of the assets of the estate are 417 shares of stock of the Chicago Gas Trust Co.; that prior to February 16, 1887, Henry Schubart had been the owner of 585 shares of stock of the Chicago Gas Light & Coke Co., upon which date last named its assets were of the value of between five and six…

Ejek Hawes, Judge, presiding. This was an action of assumpsit by David G. Thayer, for the use of the Metropolitan National Bank, against appellant, to recover rebates upon freight charges on certain shipments of grain from Chicago to New York City, made by Thayer & Co. during the early part of the year 1886. Thayer, doing business as Thayer & Co., was a merchant in Chicago, who shipped grain to Story & Co., of New York City, for sale by them as commission merchants.

<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. Richard S. Tuthill, Judge, presiding.</p>

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

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

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

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

Elliott Anthony, Judge, presiding. This was an action brought by appellant to recover for damage sustained by being run into by a train on the road of appellee, while driving over a crossing. The place where the accident occurred was on a plain where the track was straight and could be seen for a long distance on either side. A train going west passed, appellant waiting for it to go by.

<p>Railroads—Construction of—Abutting Property—Injury to—Eminent Domain—Dedication—Evidence of.</p> <p>1. The right of an abutting owner to damages where his property is injured, extends as well to cases where the damage is caused by legal acts, as where it is the result of an illegal trespass.</p> <p>2. Where a railroad company is authorized by municipal ordinance to lay several tracks in a given street and at first lays but one track, subsequently changing its location, and also laying others, abutting land owners may recover damages suffered by their property through such subsequent operations.</p> <p>3. Where, by a condemnation proceeding, such company has the right to operate its road on land or on a highway, such company may operate its road as it.sees fit, unless it has been bound down in its petition, or by the terms of the judgment, to a particular method of construction or a limited occupation; and in the latter event, a departure by the company from its plan of proposed construction, which is injurious to abutting land, will be compensated in damages in an action brought for that purpose.</p> <p>4. Whether or not there has been a dedication of land to the public, in a given case, is a question of fact for the jury.</p> <p>5. A prescriptive right to land for the purposes of a way, may be gained by the public by a use thereof, uninterrupted, for a period of twenty years.</p> <p>6. Dedication may be established by proof of a use by the public with the acquiescence of the owner, for a time corresponding to the period of the statute of limitations.</p> <p>7. A setting out of land by an owner for a highway, evidenced by such acts as show a clear intent on his part to dedicate it, and an acceptance thereof by the public, and a user for a highway, will amount to a complete dedication binding on all parties.</p>

<p>Practice.</p> <p>1. A refusal to quash a capias is not a final order, and can not be appealed from.</p> <p>2. Where a defendant m an action before a justice was not served with process, and knew nothing of the proceeding until after judgment, the justice had no jurisdiction to render the same, and it was of no effect.</p>

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

<p>Guaranty.</p> <p>1. While a surety’s liability will be strictly construed, strictness can not be carried to such a degree as to create defenses for the guarantor when none in fact exist.</p> <p>2. This court affirms, in view of the evidence, the judgment for the plaintiff in an action brought to recover for a bill of goods sold and delivered by plaintiff to persons named, in reliance upon a certain guaranty in writing.</p>

<p>Agency—Contract to Repair Theatre—Extras—Recovery of*</p> <p>1. The fact, that the proprietor of a building intrusted matters connected with a certain work to persons named, is not, of itself, authority to them to add to a contract made by him with third parties.</p> <p>2. An agreement with certain persons as authorized agents, can not bind' their principal, they having no authority to do so.</p>

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

<p>Account—Practice.</p> <p>The order to account, in an action of account, is interlocutory, and no appeal lies therefrom.</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; Eiohard S. Tuthill, Judge, presiding.</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. Elliott Anthony, Judge, presiding.</p>

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

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

<p>Personal Injuries—Infant—Discretion—negligence—Unguarded Elevator Shaft.</p> <p>1. An infant five and one-half years of age can not be assumed to have arrived at years of discretion.</p> <p>2. Negligence of a person having charge of such infant will not affect its right to recover lor a personal injury suffered through the negligence of another.</p> <p>3. In the case presented, this court holds that the defendants were under no duty toward the plaintiff, the neglect of whibh led to the injury sustained.</p>

<p>Newspapers—Notices—Sec. I, Chap. 100, B. S.—Sheriff’s Sale.</p> <p>1. This court holds that a weekly publication named, is a ‘‘newspaper” within the meaning of Sec. 1, Chap. 100, R. S.</p> <p>2. Where such paper is published by a corporation, it can, under Sec. 1, make a certificate of the fact of publication therein.</p>

<p>Practice—Appeal and Error—Justices.</p> <p>Where a party to a suit before a justice appeals as a corporation from the judgment thereof, no proof of its corporate existence other than that afforded by its appeal bond, is necessary.</p>

<p>Malpractice—Physicians—Evidence.</p> <p>1. A physician or surgeon, or one holding himself out as such, is only bound to exercise ordinary skill and care in the treatment of a given case, and in order to hold him liable for damages, it must be shown that he failed to exercise such skill or care.</p> <p>2. The jury can not draw the conclusion of unskillfulness from proof of the result of treatment. That the treatment is improper must be shown by the evidence.</p>

<p>Carriers-—Bills of Lading—Indorsement of to Bank—Direction to Deliver to Party Named—Evidence.</p> <p>1. Where a party ships goods which he intends to deliver under a previous contract, but takes the bill of lading to his own order, the delivery of the goods to the carrier will not be held to be a delivery to the person to whom the goods are contracted, for the reason that by taking the bill of lading to his own order, the shipper reserves to himself the power of disposing of the property.</p> <p>2. When the property is in the hands of the carrier, the 'bill of lading shows to whom he is to deliver it. The delivery of the bill of,lading, properly indorsed, is tantamount to the actual delivery of the goods described in it.</p> <p>3. The fact that a bill of lading contains a direction to notify a person named of the arrival of the goods in question, is no indication that he has any interest in the same, nor is it enough to put a person dealing with the bill of lading on inquiry.</p> <p>4. Though a bill of lading is fraudulently used, a bank cashing a draft with the bill attached, acquires a good title to the property in question.</p>

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

<p>In error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Street Railways-—Negligence of—Personal Injuries.</p> <p>1. Where, in a personal injury case, the nature, of the accident as proved, is such as to raise a presumption of negligence on the part of the defendant, the latter can not defeat a recovery unless it is shown how the accident happened and that it could not have been prevented by the greatest degree of diligence practicable under all the circumstances of the case.</p> <p>2. A plaintiff in a given case is confined to the proof of the specific acts of negligence averred in his declaration, and it is reversible error to admit evidence of acts other than those alleged.</p> <p>3. Under a count setting forth that a street railway company “negligently ran and operated its road and the cars propelled thereon,” any act of negligence in the operation of the road would be admissible, and issue being taken upon such count, it may be shown that the defendant operated its road without placing sand boxes upon its grip cars.</p> <p>4. In this case it was proper to decline to allow the plaintiff to he cross-examined as to the condition of his nealth twelve years before the accident.</p> <p>5. All general ground of objection to the admission of evidence, is waived by making the objection specific.</p> <p>6. Irrelevant remarks by counsel which have no influence upon the jury in a given case, are no ground for reversal.</p> <p>7. To warrant a recovery for special damages, the particular damage must he stated in the declaration.</p>

<p>Bail roads—Negligence—Personal Injuries—Contributory Negligence— Evidence—Instructions.</p> <p>1. While it is ordinarily the duty of a person about to cross a railroad track, to watch for approaching trains, a person about to take a train standing at a station waiting to receive passengers, or one alighting from a train just arrived, has a right to presume that the trains will be so run, and the road so operated, that a track between the station and that upon which said train is standing, can be safely passed.</p> <p>2. In an action brought to recover from a railroad company the pecuniary loss sustained by a widow and next of kin, through the death of her husband, the same being alleged to have occurred through its negligence, it is improper to admit evidence as to the pecuniary circumstances of such widow at the time of the accident.</p> <p>3. This is so bee.iuse the widow was legally entitled to receive support at the hands of deceased, and would, in case of his death, have had a lawful claim upon his estate, that, so far as she is concerned, the action is ' prosecuted for her benefit, and she is entitled to recover, although at the</p> <p>time of the death of deceased, she was in her own right possessed of independent means.</p> <p>4. This court holds as erroneous, an instruction setting forth that the engineer and fireman were personally liable to the defendant for any negligence which the jury should believe was committed by them at the time of the accident, and for all damages, if any, to be allowed by the jury on account thereof.</p>

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

<p>Life Insurance—Mutual Benefit Associations—Pleading—Proposition of Lau>—Arrest of Judgment.</p> <p>1. Common counts are appropriate in a given action, only when the defendant has received, in some form, the equivalent of the money which he is called upon to pay. When his obligation to pay rests only upon his nonperformance of his promise, however good the consideration for the promise, the declaration must be special; but however special the contract, not under seal, if the plaintiff has performed it, and the defendant received under it the benefit for his own use, in general some common count will suffice.</p> <p>2. An allegation of duty is surplusage. If no facts from which the law will imply the duty are set out, the allegation will not help; if such facts are set out, it is unnecessary. That the duty arises out of the contract does not change the rule.</p>

<p>Garnishment—Secs. 8 and 21, Chap. 11, R. S.—Secs. 5 and 24, Chap. 62, R. S.</p> <p>Shares of stock owned by a defendant in attachment for which certificates have not been issued, may be reached by garnishment in the hands of the corporation in question, and their issuance and the disposition of them controlled by a given court.</p>

George Driggs, Judge, presiding. This was an action of trespass on the case, in which the plaintiff, among other things, alleged that being in the employment of the defendant, he was ordered by him to go upon a wagon to put up certain goods, being delivered by the defendant to his customers, namely, certain stoves which the defendant had sold, and that it was the duty of the defendant to furnish for the use of the plaintiff in said service, a safe and sufficient wagon; that…

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

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

<p>Trust Deeds—Foreclosure—Mechanic's Lien—Verified Statement— Secs. 4 and 35, Chap. 82, B. S.</p> <p>1. The filing of a statement as required by Sec. 4, Chap- 82, R. S., is a condition precedent to the right to a lien, and a failure to comply with the requirements of the statute in that respect prohibits the enforcement of the lien.</p> <p>2. In the case presented, this court holds that the affidavit filed is not a sufficient verification of the statement of account or claim.</p>

Elliott Anthony, Judge, presiding. In this action it appeared that the defendant below bought a bill of liquor of appellees for the total price of $1,104.12, paying therefor the sum of $300 in cash and making his two promissory notes, each for the sum of $402.06, dated October 22, 1888, and payable respectively in sixty and ninety days thereafter. Appellant received the liquors in April, 1888, and paid the $300 in cash at the time he gave the notes, namely, at their date.

Murray F. Tuley, Judge, presiding. In this case it appeared that on May 7, 1889, a judgment in forcible detainer was rendered by a justice of the peace against one Richard Martin, for possession of premises, occupied by him, and that on May 14, 1889, a writ of restitution for the premises was issued, with execution for $3.95 costs.

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

<p>In eeeoe to the Circuit Court of Cook County; the Hon. Richard W. Clieeoed, Judge, presiding.</p>

Elliott Anthony, Judge, presiding. November 27, 1888, a judgment, by confession, for the sum of §16,217.70, was entered in the Superior Court in favor of the defendants in error and against the plaintiff in error and one Henry Sues, they then being partners under the firm name of Sues & Uhlendorf. The declaration under which the judgment was entered contained two counts, each upon an instrument having embodied therein a note and a power of attorney to confess judgment.

Geokge Dkiggs, Judge, presiding. On March 19, 1891, F. M. Williams filed his petition for writ of certiorari, in Circuit Court, Cook County, as follows: “Tour petitioner, F. M. Williams, of the city of Chicago, in said county and State, complaining, shows unto your honors that on the 10th day of November, A. D. 1890, he commenced action against one George M. McDonald, before H. B. Brayton, Esq., one of the justices of said county, to recover from said McDonald the sum of…

<p>Insolvency—Assignment—Act of May 22, 1877—County Court—Jurisdiction of—Trust.</p> <p>1. A transfer of property and choses in action by an insolvent to his creditor direct, for the purpose of securing or providing the means of payment of that creditor, and of that creditor only, is not a voluntary assignment for the benefit of creditors, under the act of May 22,1877.</p> <p>2. All charges of fraud and collusion are foreign to the jurisdiction of the County Court. It has no general equity powers.</p> <p>8. It matters not what a given transaction between an insolvent and a party named may be, if it is not what the statute provides for as a voluntary assignment for the benefit of creditors. If creditors wish to attack it, they must go elsewhere than to the County Court, unless, if they choose to risk an attachment of the property transferred, or proceed by garnishment, they may resort to that court in the exercise of its ordinary jurisdiction at law, for amounts not exceeding $1 000.</p>

Elliott Anthony, Judge, presiding. Appellant received from appellee a policy of insurance against fire upon a building owned by her in Chicago, which policy contained this provision: “ This company shall not be liable for loss caused directly or indirectly by riot, * * * or (unless fire ensues, and, in that event for the damage by fire only,) by explosion of any kind.” A mill adjacent to appellant’s premises took fire, and shortly after, an explosion in the mill blew…

<p>In error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>In error to the Circuit Court of Cook County; the Hon. Hurray F. Tuley, Judge, presiding.</p>

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

Mubbay F. Tuley, Judge, presiding. On the 31st day of July, 1890, appellee filed in the Circuit Court his creditor’s bill against appellants and others, setting forth the recovery of a judgment by him against Mrs. 3ST. A. Boyd, now Mrs. H. A. Edwards, the issue of execution and return thereon by the sheriff of demand on the judgment debtor, her failure to satisfy the same, and that he, the sheriff, was unable to find any property with which to satisfy the same.

<p>Railroads—Negligence of—Personal Injuries—Evidence—Instructions.</p> <p>1. A release of, or receipt in full satisfaction from one joint wrongdoer discharges all; but release to, or the receipt of, money from one who is not, in fact, liable with another, will not discharge such other; and in order to discharge the other, the satisfaction received from one joint wrongdoer must be received in satisfaction of the whole injury or in full satisfaction.</p> <p>2. In an action brought to recover for a personal injury alleged to have occurred through the negligence of defendant, a railroad company, this court holds, in view of the giving of erroneous instructions, touching, among other things, the alleged receipt, by the plaintiff, of a certain sum, in full, for the injuries suffered by him from one or more roads named, that the judgment in its favor can not stand.</p>

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

Richard Prendergast, Judge, presiding. Defendants in error brought suit in assumpsit against Margaret A. Ward, and Dennis Ward, the declaration filed containing the common counts only. The defendants entered their appearance and filed a plea of the general issue, and with it an affidavit by Dennis Ward that he had a good defense upon the merits to the whole of the plaintiff’s demand.

<p>Ufe Insurance — Policy— Conditions— Administrator—Evidence — Instructions.</p> <p>1. A substantial departure from the truth in answering questions set out in an application for life insurance made by assured, will avoid the policy issued thereon.</p> <p>2. It is only by adopting a policy for life insurance issued to a deceased person that his administrator has any standing in an action brought to recover thereon, and such adoption necessarily embraces all the terms of the policy.</p> <p>3. No admission by an administrator, made before his appointment, is evidence against him after such appointment.</p>

Elliott Anthony, Judge, presiding. Appellee brought suit in assumpsit, to recover the loss by him sustained on several carloads of fruit brought in appellant’s cars from California to Chicago. This action he afterward, by leave of court, changed to case. The jury returned a verdict of §10,000 for the plaintiff, and also specially found that the injury to the fruit was due to neglect in keeping the cars at a proper temperature.

Elliott Anthony, Judge, presiding. Appellee being the owner in fee of a vacant dwelling house in Riverside, Cook County, applied to one Frank E. Bryant, (a real estate agent) who resided at Riverside, to let it for him. Bryant placed it upon his list for rent and showed it to various parties.

<p>Practice—Sales—Partnership—Evidence.</p> <p>1. The large number of voluminous records presented for the consideration of this court, renders it impossible for the members thereof to search them for papers not alluded to in the abstract.</p> <p>2. In an action brought to recover the amount for which certain goods were sold a given firm, the defendant contending' that he was not a member thereof, this court declines to interfere with a judgment against him.</p>

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

<p>Forcible Fntry and Detainer Act—Sec. 18—Practice—Appeal.</p> <p>1. A party to a suit of forcible entry and detainer before a justice may take his appeal from the finding thereof, either by filing his bond with the justice, and having the justice approve it, or by filing his bond with the clerk of the appellate court, and having it approved by said clerk. The party appealing, in order to have an appeal must file his bond within five days from the rendition of the judgment.</p> <p>2. While Sec. 19 of the Forcible Detainer Act prescribes the conditions of the bond where the defendant appeals, a bond filed within the time provided, and approved by either the justice or the clerk, will give jurisdiction to the appellate court, even though it fails to contain the conditions in that section specified.</p> <p>3. While a strict compliance with the statute as to the time within which a bond must be filed, and as to the approval thereof, is required, the rule has never been applied to defects in the bond, such as lack of a seal, or failure to make it in sufficiently large penalty, or to incorporate in it the conditions which the statute directs that it shall contain.,</p> <p>4. A party is not bound to rest satisfied with any bond, whether taken by the justice or the clerk, but may have the amount ascertained and fixed by the court in which the appeal is pending; and if the appellant will not file a bond of the amount so fixed the appeal will be dismissed.</p>

<p>Constables—See. 85, Chap. 79, B. S.—Demand.</p> <p>1. An officer need not pay over money to parties, or to the justice, before the return day of his writ. He may pay to the plaintiff before he makes return if he sees fit, but this is his privilege, and not his obligation.</p> <p>2. If the return day of a writ has passed before an action is brought to recover money arising from the sale of property levied bn, it can not be maintained without a demand is made upon the constable to pay it over, or it is shown he has misapplied it.</p>

<p>Trust Deeds—Foreclosure—Attorney's Fees—Practice.</p> <p>1. It is entirely in the discretion of the court whether a defendant will be ruled to answer after a demurrer overruled. The court may enter a decree against him at once, or hear evidence, or refer to the master to take evidence before entering the decree.</p> <p>■ 2. In the case presented, this court holds that the fact that the court did not enter a default against a person named is not an error of which she can complain, and that the allowing or ruling her to answer, or the filing by her of an answer, did not operate to vacate the reference to the master or his report, or the evidence previously taken by him.</p> <p>3. In proceedings to foreclose certain trust deeds, this court holds the decree entered to be too large by the amount of the cost of an abstract, and reverses the same.</p>

<p>Attachment Act—Sec. 37—Judgments, Act Relating to, Secs. 9 and 10.</p> <p>1. If a given attachment from any reason loses its vitality and is unable longer to hold the properly, its usefulness is gone and it will no longer avail the attaching creditor or others relying upon Sec. 37 of the Attachment Act.</p> <p>2. In the case presented, this court holds that the fact that parties named, for their own benefit, obtained control of the first attachment and dismissed it, did not continue the lien which was created thereby, for the benefit of creditors in a later attachment.</p>

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

Clair County; the Hon. B. B. Burroughs, Judge, presiding. On October 13, 1886, Bussel Hinckly was indebted to plaintiffs in error severally. To secure these debts evidenced by his notes, he and his wife, by their five trust deeds of that date, conveyed to O. A. Koerner as trustee, lands and lots in St. Clair, Wayne, Fayette, Clinton and Marion Counties, in this State.

<p>Partnership—Dissolution—Balance Due Retiring Member—Recovery of —ISviclenee—In structions.</p> <p>1. The withdrawal of one of several partners from a firm and his removal from the State, amounts to a dissolution of the firm.</p> <p>2. In an action brought to recover certain sums alleged to have been loaned by the plaintiff to the defendant, likewise a sum alleged to have been found due the plaintiff upon final settlement and dissolution of a partnership between the parties hereto, this court declines, in view of the evidence, to interfere with the judgment for the plaintiff.</p> <p>3. In the case presented it is held: That the fact that the stock of goods was consumed by fire, did not justify a deduction from the sum agreed upon by the members of the firm upon the dissolution thereof, to be paid to the retiring member upon the sale of the same.</p>

<p>Life Insurance—Mutual Benefit Society—Dues—Payment of.</p> <p>In an action brought by a widow to recover an amount claimed to be due from a mutual benefit association through the death of her husband, an alleged member thereof, this court holds, in view of the evidence,that deceased was properly expelled therefrom for non-payment of dues, and that the judgment for the plaintiff can not stand.</p>

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

<p>Principal and Surety—Bond—Action of Debt—Dower.</p> <p>1. In the construction of written contracts, the intent of the parties is to be arrived at if possible.</p> <p>2. In an action of debt on a bond given by the grantor of certain lands, one surety signing the same with him, the object thereof being to provide for the yearly payment of a given sum to satisfy the dower right therein of a person named, this court construes the same, and holds, in view of the evidence, that the judgment for the defendants can not stand.</p>

<p>Replevin—Bond—Action of Debt on—Pleading—Practice—Evidence.</p> <p>1. A variance is a substantial departure from the legal effect of the instrument sued on.</p> <p>2. If the judgment in a given case can be pleaded in bar of another action on a bond claimed to be inadmissible upon the ground of variance, the admission thereof can not be complained of.</p> <p>3. A copy of proceedings in a given suit in another county may be certified to in the name of the clerk by his deputy.</p> <p>4. In an action brought by an ex-coroner of a given county for the use of a person named, in debt on a bond given to said coroner and his successors in office by a firm subsequently insolvent, as plaintiffs and principals in a replevin suit begun by them against the sheriff of such county and a custodian, for the recovery of certain personal property mentioned in such bond, it being conditioned to prosecute the suit with effect, or make return of the property to said defendants in case return thereof should be awarded, this court holds as proper, the sustaining of a demurrer to certain pleas filed by the defendant, the usee having no lien on the property of said firm, or the property replevied, the same having been burned; also that he was not bound to present his claim against the insolvent estate; that his failure to do so would only affect his interest as against other creditors who had presented and proved up their claims, the fact being that his only claim against the estate rested in his right of action on the replevin bond, by the giving of which he was prevented from obtaining satisfaction of his judgment.</p> <p>5. In such case the fact that the complainant obtains judgment against the insolvent estate, will not work a satisfaction of his claim on the bond. Payment of the judgment would only accomplish it.</p> <p>6. A plea in such case that the property replevied was afterward burned and therefore could not be returned, is not good.</p> <p>7. A suit on such a bond may be brought in the name of the officer after his term expires; it is taken not only to indemnify the officer, but to protect the defendant or interested party in the replevin suit as well. The use of the words in the bond, “or his successor in office, ’’ do not affect the right of the defendant in the replevin suit to use the name of the coroner to whom the bond was given.</p> <p>8. It is not necessary in such case, so far as the defendant is concerned, that there should be any averment in the declaration that the usee had any interest in the bond.</p>

<p>Master and Servant—Negligence of Servant—Personal Injuries—Master's Liability.</p> <p>1. Negligence in a given case is a question of fact, to be determined by the jury.</p> <p>2. In view of the evidence this court declines to interfere with a verdict for the plaintiff, in an action brought to recover from an employer for personal injuries, alleged to have been occasioned by its servant's negligence.</p>

<p>Morfgag es—Foreclosure—Redemption by Judgment Creditor.</p> <p>1. The purchase by the mortgagee under a second mortgage of a certificate of purchase of real estate sold under foreclosure proceedings is not a redemption from such sale. A person so purchasing simply steps into the place of the original purchaser, and succeeds to his rights as such, and to-no different or greater rights.</p> <p>2. Such purchaser can not set up such purchase and prevent a judgment creditor from redeeming in conformity with the terms of the statute.</p> <p>B. The fact that such creditor was aware, at the time of the institution of proceedings to redeem, of such purchase, cuts no figure as to his right to proceed.</p> <p>4. It is not necessary that a judgment should be a lien against the land to entitle the judgment creditor to redeem.</p>

<p>Sales—Real Property—Commissions—Recovery of by Agent.</p> <p>1. Although the owner of land has placed it in the hands of an agent for sale, such act does not deprive him of the right to sell it himself.</p> <p>2. If a sale by an owner works a breach of a contract with an agent, an action by the latter should be based on such breach, and not on a performance of the contract.</p> <p>3. In order to recover commissions, an agent must prove that his party was ready, able and willing to complete the purchase upon the terms required.</p>

<p>In error to the Circuit Court of St. Clair County; the Hon. A. S. Wilderman, Judge, presiding.</p>

<p>Railroads—Fire—Destruction of Crops—Pleading—Evidence — Variance.</p> <p>The fact that a widow has a life interest in real estate left by her husband, who died intestate, will not justify an assumption that her children over twenty-one years of age, farming the same with her, can not be joint owners with her of the crops raised thereon.</p>

<p>Forcible Detainer.</p> <p>In an action of forcible detainer brought to recover possession of certain premises rented to defendant by a person named, a widow, the plaintiff having received a sheriff’s deed to her interest therein, she having acquired the same under the wiil of her husband, and such interest being subject to sale on judgment, this court declines to interfere with the judgment for the plaintiff.</p>

<p>Railroads—Negligence—Personal Injuries—Crossings—Obstruction of —Signals—Evidence—Photographs—Verdict.</p> <p>1. It does not necessarily follow because a person approaching a railway crossing with a team did not stop and listen for a train, that he was guilty of such negligence as to bar a recovery in case he suffers a personal injury from a train at such point. He must use ordinary care.</p> <p>2. It is proper in personal injury cases to refuse to admit in evidence photographs of the spot where the injury occurred, when the same are taken at a time when the surroundings have an aspect different from that existing at the time thereof.</p> <p>3. In an action brought to recover from a railroad company for the death of a person at a crossing, it being alleged that side tracks were filled with cars which obstructed the view of the main track from the highway, and of the latter from the former, also that the train which did the injury was run at an unlawful rate of speed, and that the signals required by the statute were in part omitted, this court holds that the petition of defendant to remove the cause to the Federal Court, not being verified in any manner, was properly denied; that in view of the circumstances no complaint can be made as to the verdict of the jury, although it was returned into court unsealed, the jury being subsequently polled, and agreeing thereto, and declines to interfere with the judgment for the plaintiff.</p>

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

<p>Negotiable Instruments—Note—¡Surety—Release of—Evidence—Instructions.</p> <p>1. The payment of interest, or a part thereof, or of a part of the principal of a note, is not a consideration that is sufficient to support a promise to extend the time of payment beyond maturity. The promise to extend, in order to be binding upon the holder of the note, and release sureties thereon not having knowledge thereof or consenting to such extension, must be supported by a new consideration, the payment of money or other valuable consideration, not as a credit to be indorsed on the note, but given to the holder as a consideration for the forbearance.</p> <p>2. In an action against the maker and sureties upon a promissory note, the latter contending that they had been discharged from liability thereunder by the extension, for a valuable consideration, of the time of payment thereof, by the plaintiff, this court holds as erroneous the refusal to give a certain instruction asked by the plaintiff, and that, the judgment against him can not stand.</p>

<p>Municipal Corporations—-Ordinances—Validity of—Licensing Insurance Agents—Paragraph 91 of Sec. 1, Article S, of the General Incorporation Act.</p> <p>1. The provisions of the organic act or charter by which a municipal corporation is created, restrict and fix the limits of its legislative powers. It can enact and- enforce such ordinances only as would be embraced within the limits of the granted power.</p> <p>2. The word “brokers” in Par. 91 of Sec. 1, Art. 5, General Incorporation Act, can not he held to refer to or include “ insurance agents representing corporations, companies or associations engaged in the insurance business."</p> <p>8. An insurance broker may be for certain purposes and at certain times an “agent,” but an insurance agent representing corporations engaged solely in insurance business, can not be an insurance broker or act as such.</p> <p>4. In the case presented, this court holds as invalid plaintiff’s ordinance touching the licensing of insurance agents.</p>

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

<p>Practice.</p> <p>1. A bill of exceptions must be signed and sealed.</p> <p>2. Unless there is a bill of exceptions embodying the rulings of the court, and all the evidence introduced on a given trial, and the motion for a new trial, together with the exceptions to rulings of the court, this court can not consider a given appeal.</p>

<p>Municipal Corporations—Negligence of—Unguarded Hole in Street—■ Shavings—Personal Injuries—Contributory Negligence.</p> <p>1. A municipal corporation is liable to respond in damages to persons injured, while in the exercise of ordinary care, in consequence of its negligence in permitting dangerous obstructions to remain upon its public streets.</p> <p>2. Such corporations must use reasonable care to keep their streets and alleys in reasonably safe repair and condition for the use of the public. A failure to perform this duty is negligence for which an action may be maintained by a person injured thereby, and exercising ordinary care for his own safety.</p> <p>3. The question as to whether, in a given case, an obstruction in a highway was of a character likely to frighten gentle horses carefully driven, is one of fact, to be determined by the jury from a consideration of all the evidence touching the character, location and surroundings of the obstruction at the time of the accident.</p> <p>4. This court declines, in view of the evidence, to interfere with a verdict for the plaintiff in an action brought to recover from a municipality for personal injuries alleged to have been suffered through its negligence in suffering an unguarded hole to remain open in one of its streets, and a pile of shavings to be thereon.</p>

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

<p>Banks—Deposit—Recovery of.</p> <p>1. Where in a given case there was no error in the rulings of the trial court, and no erroneous instructions were given, and the evidence was conflicting upon the material questions in the case, the verdict of the jury must prevail.</p> <p>2. In an action brought to recover an amount alleged to be deposited with and due from a private banker, the defendant contending that the greater portion thereof had been paid out for the plaintiff in the purchase of certain stock, and that the same had been properly charged to him, the evidence being sharply conflicting, this court declines, in view of the evidence, to interfere with the judgment for the plaintiff.</p>

<p>Practice,</p> <p>1. The judgment of a court is not to be sought in the minutes and memoranda which the judge makes upon his own docket, kept by him for his own convenience, to see that the clerk makes up the record accurately, and which the law does not require him to keep.</p> <p>2. This court dismisses the appeal in the case presented, for the reason that no transcript of the record of any judgment by the trial court appears in the record herein.</p>

<p>Appeal from the Circuit Court of Madison County; the Hon. ‘William H. Seller, Judge, presiding.</p>

<p>Libel—Publication—Privileged Communications.</p> <p>1. Where the evidence in a given case is conflicting, questions of fact are for the jury, and their verdict can not be disturbed, there being sufficient evidence to sustain it.</p> <p>2. A plea of want of malice is different from a plea of justification; a plea of want of malice should plead the facts and make the absence of malice the issue as tendered.</p> <p>3. Proof of speaking or publishing actionable words is prima facie proof of malice.</p> <p>4. It is proper, in an action for libel, to refuse an instruction offered by the defendant on the theory of a privileged communication, there being no such plea to the declaration, a plea of justification being filed instead.</p>

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

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

<p>Contracts—Breach—Damages—Practice—Language of Attorney upon Trial.</p> <p>1. Only those damages can be recovered for a breach of contract that are the proximate and natural result of the breach, and which may be presumed to have been contemplated by the parties.</p> <p>2. When a contract provides for special damages, or is of 'a special character, and there is a breach caused by the failure to comply with another contract which is ancillary thereto, in order to recover such special damages</p> <p>, in a suit for a breach of the subordinate contract, the maker thereof must have some notice of the character of such principal contract.</p> <p>3. This court holds as highly improper the language of an attorney for the defendant, in the case presented.</p>

<p>Appeal from tbe Circuit Court of Saline County; the Hon. George W. Yourg, Judge, presiding.</p>

<p>Railroads—Injury to Stoch.</p> <p>In an action brought to recover from a railroad company for the killing of a hog upon its track, this court holds that there was no evidence of negligence upon the part of the servants managing the train in question, and that the judgment for the plaintiff can not stand.</p>

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

<p>Appeal from the County Court of Bando! ph County; the Hon. Wabren H. Wilson, Judge, presiding.</p>

<p>Partnership—Existence of—Evidence—Wages of Third Person.</p> <p>In an action brought by a servant to recover from defendants for services, upon the ground that they were partners, be having been employed by one of them, the point involved being as to whether the other so held himself out to the world that one dealing with the first might fairly presume that a partnership existed, this court holds that the evidence warranted no such presumption, and declines to interfere with the judgment against the plaintiff.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. John P. Altgeld, Judge, presiding.</p>

<p>Drainage—Wrongful Maintenance of Embankment—Flowage of Farm Lands—Sec■ 37, Chap. 43, S. S.</p> <p>1. If the declaration in a given case shows no cause of action, and is so defective that it will not sustain a judgment, a reversal of a judgment based thereon will be required, and such infirmity in the declaration can be taken advantage of by assignment of error, as well as by motion in arrest.</p> <p>2. The notice referred to in the drainage act, 11 to all persons interested” to appear and present their claims for damages, applies to and affects those owners only whose lands are within a given district.</p> <p>3. An action will not lie to recover damages £rom a drainage district, for injuries suffered through the tortious acts of commissioners. To so recover the remedy is against them personally.</p>

<p>Wills—Construction of—The Word “Money.”</p> <p>1. In the construction of wills the intent of the testator should, if possible, prevail.</p> <p>2. Words of comprehensive import should be given their full extent of operation, unless some very distinct ground can be collected from the context, for considering them as used in a special and restricted sense.</p> <p>3. In the case presented, this court holds that the word “ money ” in the will under consideration covered securities named.</p>

<p>Appeal from the Circuit Court of Massac County; the Hon. Robert W. McCartney, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison County; the Hon. B. B-. Burroughs, Judge, presiding.</p>

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

<p>Railroads—Negligence of—Flowage of Farm Lands—Embankment— Jury— View by—Evidence—Instructions—Practice.</p> <p>1. Whether or not the jury in a given case shall be allowed to visit the scene of a given injury, lies within the discretion of the court.</p> <p>2. In an action brought to recover from a railroad company, damages for injury to his land and crops by an overflow of water alleged to have been caused by the negligence of said company in failing to keep open a culvert and ditches on its right of way, and permitting the same to fill up and prevent the water from running off the land of appellee, this court declines, in view of the evidence, to interfere with the judgment for the plaintiff.</p> <p>3. To maintainsuch an obstruction is a violation of a public duty and an invasion of private rights, creating a liability for damages to persons injured thereby.</p>

<p>Licenses—To Marry—Parties wider Legal Age—Penalty—Pleading.</p> <p>1. A county clerk is responsible for the act of his deputy in wrongfully issuing a marriage license.</p> <p>2. When a clerk or his deputy examines the persons proposing to marry as to their ages, the clerk will not be liable, a license having been issued through honest mistake.</p> <p>3. In an action to recover a penalty against a county clerk for wrongfully issuing a license for the marriage of a minor, a declaration averring that, complainant is the. parent, that defendant was the clerk and issued a license to complainant’s child, then being a minor, without his consent, is enough.</p>

<p>Appeal from the City Court of Alton, Illinois; the Hon. James E. Dunnegan, Judge, presiding.</p>

<p>Negotiable Instruments—Note—Special Warranty—Breach—Damages.</p> <p>1. The verdict of a jury upon conflicting testimony will not be set aside unless it is manifestly against the evidence, and is the result of prejudice or passion, or unless the misdirection of the court in its instructions as to the law, or erroneous ruling m the admission or rejection of evidence, caused the jury to return an unfair verdict.</p> <p>2. In a suit upon a note given for the purchase price of a given machine, there being a special warranty that it will do a certain amount of work, the defense being a oreach thereof, such defense is good although such machine is not returned.</p> <p>3. If in such case such machine was of no value, the damages for the breach of the warranty will be the amount, at least, of the note sued on.'</p>

<p>Fraudulent Conveyances—Creditor's Bill.</p> <p>Upon a bill brought to set aside conveyances conveying interests in the same property to the same grantee alleged to oe in fraud of creditors, and to subject said real estate to the payment of certain judgments, this court declines to interfere with a decree dismissing the bill as to a defendant named, and setting aside the deed of another as against the rights of complainants.</p>

<p>Railroads—Negligence — Injury to Stock—Hog—Evidence — Instructions.</p> <p>An instruction not based upon evidence adduced should be refused.</p>

<p>Railroads—Negligence—Carriage of Live Stock—Delay—Special Contract.</p> <p>1. A carrier is bound to exercise reasonable diligence in the carriage o£ live stock, and failing to do so, is liable for damages arising from such failure.</p> <p>2. While, where stock is shipped under a special contract, and damage takes place, an action may be brought thereon independent thereof, a shipper may have his action on the case for damages, for negligence of ¿he carrier in the non-performance of a duty as such carrier.</p> <p>3. To the extent that such carrier might make a valid contract in limitation of its liability to the shipper in the carriage of the stock shipped, such contract will be a matter of defense; and that defense may, in an action on the case, be given in evidence under the general issue, and need not be specially pleaded.</p> <p>4. A railroad company may limit its liability by contract to.carriage over its own line.</p> <p>5. Where that limitation is made 'by a condition in a bill of lading made as a receipt by the carrier, notice of the condition and assent to it by the shipper is a question of fact, to be determined from the evidence; but where the limitation is contained in a contract signed by the shipper, the contract is to be construed by the court.</p> <p>6. The terms of such contract .’are binding so far as the carrier may contract in limitation of its duties, and a shipper signing such contract can not relieve himself from its terms by reason of ignorance of the same, unless there be fraud and misapprehension in the execution thereof.</p> <p>7. A carrier may lawfully require that it shall not be held liable for damages to goods carried by it, unless the shipper or consignee gives notice of his claim for damages, within a reasonable time.</p> <p>8. The question of what is a reasonable time must be governed by the facts in a given case.</p> <p>9. A condition in a bill of lading setting forth that before the shipper shall be entitled to claim damage for injury to live stock caused by the negligence of the carrier, or any connecting line it may send such live stock over when shipped on a through bill of lading, he must give notice in writing of his claim of damage to some officer of the road that originally received the stock and issued the bill of lading, before the stock is removed from its place of destination or mixed with other stock, is an unreasonable requirement.</p>

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

Egbert W. McCartney, Judge, presiding. A declaration was filed in the Circuit Court of Hnion County against the defendants in error on the bond of Edward M. Barnwell, as clerk of the Circuit Court of that county, which bond is as follows: “ Know all men by these presents, that we, Edward M. Barnwell as principal, and John Holshouser, Frank Hoibauer, Joseph C. Lintz and Lather Bruce as securities, all of the county of Hnion and State of Illinois, are held and firmly bound…

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

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

<p>Master and Servant—Negligence of Master—Personal Injuries—Proximate Cause—Contributory Negligence.</p> <p>In an action brought by a servant to recover for personal injuries alleged to have been occasioned by his employer’s negligence in sending him to work with a person ignorant of the English language, this court holds that the injury in question occurred through plaintiff’s own negligence and that the judgment in his favor can not stand.</p>

<p>Appeal from the Circuit Court of Peoria County; the Hon. La week oe W. James, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will County; the HonDoeraece Dibell, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Ogle County; the Hon./ James H. Cartwright, Judge, presiding.</p>

<p>Intoxicating. Liquors—Means of Support—Loss of—Dram Shop Act, S ec. 9—Evidence—Instructions.</p> <p>1. In an action under Sec. 9 of the Dram Shop Act, the burden of proof is upon the plaintiff to show that the defendant caused the injury in whole or in part, and this can not be assumed without proof.</p> <p>2. To make a liquor dealer liable under the statute, he must create the very intoxication, habitual or otherwise, from which the injury follows. During the time that the sales are going on, the party using the liquor must be contracting by the use of it, in whole or in part, the disease of which he afterward dies.</p> <p>3. It is not enough in such case to say that he had an appetite formed by the sale of the liquor, which led to his final injury, long after the first seller ceased to sell him liquor.</p>

<p>Sales—Bill of Sale—Security in Nature of Mortgage—Evidence— Instructions.</p> <p>1. In an action brought to recover the price of a quantity of corn claimed to have been sold and delivered to the defendant for a sum named, this court holds, in view of the evidence, that the bill of sale involved was intended as a security; that the plaintiff was to be credited with the proceeds thereo f when finally delivered, and that in view of the fact that plaintiff had failed or been unable, without fault of the defendant, to make delivery, whereby defendant received no benefit from the security, no recovery could be.had against him.</p> <p>2. Where, in such case, no price is agreed upon, the quantity not determined, and the corn never delivered, the title to corn in question can not pass from its owner to another.</p>

<p>Administration—Claims—Allowance of—Note Payable after Death.</p> <p>1. The provisions of the statute of wills can not be evaded by the making of a promissory note intended as a testamentary bequest merely.</p> <p>2. A promissory note may be given upon different, distinct and independent considerations, and if one consideration is valid and the other not, there may be a recovery pro tanto so far as it is founded on a valid consideration.</p> <p>3. The mere fact of duty or moral obligation upon the part of the maker of a promissory note, payable after his death, will not alone enable the promisee to enforce it.</p> <p>4. While in case of an obligation enforceable at law to pay for services, of which there was no standard of value, an intestate might estimate them at any sum he chose, where there is no such obligation, such a note is a mere promise of a gratuity, and not enforceable against the estate.</p> <p>5. In an action upon such note it is proper to call as a witness in behalf of the administrator, the husband of one of the heirs of such intestate.</p>