Volume 43 — Illinois Appellate Court Reports

<p>Master and Servant—Negligence of Master—Personal Injuries—Door-Latch.</p> <p>1. The extent of an employer’s duty is to use ordinary care to provide machinery and appliances for the use of his employes such as are reasonably safe and fit for the purposes they are intended to serve.</p> <p>2. In an action brought to recover for personal injuries suffered through the alleged negligence of a coal company in continuing the use of a defective door-latch, this court holds that the same resulted from the careless use thereof, that it was not out of repair but reasonably safe and fit for its use, and that the judgment for the plaintiff can not stand.</p>

Jacob Fouke, Judge, presiding. This was a bill in chancery filed on the 11th day of February, 1891, in the Circuit Court of Sangamon County, by the appellee, in which it is alleged that the appellants, as commissioners of highways, threaten to open a public highway on the section line between sections 29 and 32, and threaten to pay to Robert II.

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

<p>Husband and Wife—Necessaries Furnished Wife—Recovery for—Separate Maintenance—New Trial—Practice.</p> <p>1. At common law a husband was liable in an action at law at the suit of any person furnishing his wife with ihe necessaries of life suitable to her condition, if she was residing apart from him because of bis wrong or with his consent:</p> <p>2. The husband has uniformly been held liable for the funeral expenses of the wife, though at the time of her death she lived apart from him of her own fault.</p> <p>3. No right of action at common law existed in such case in favor of the wife either at law or in equity. She could only rely upon obtaining credit from those who were given a right of action against her husband.</p> <p>4. A bill for separate maintenance can not be sustained in a case of separation by mutual consent, but only where the separation was without the wife’s fault. The enactments of the statute touching separate maintenance in no wise affect the common law right of action in favor of persons supplying necessaries to the wife. Such right of recovery still exists by force of the common law, if the wife is living separate from her husband because of his fault or wrong, or with his consent.</p> <p>5. Whether the separation in a given case was because of the fault of the husband, or was with his consent, is a question of fact for the determination of the jury.</p> <p>6. A new trial should not he granted in such case, for the reason that the person with whom the wife lived, and who brings suit after her death against her. husband to recover for necessaries furnished her in her lifetime, in which suit the plaintiff prevails, had in his possession a letter written by the husband to the wife which the husband insists should have been produced in evidence upon the trial of such suit, no notification or request to produce the same having been given, it being cumulative evidence only.</p>

<p>Fraudulent Sales—Corn in Crib.</p> <p>1. As against creditors, sales oC personal property by verbal contract may be deemed fraudulent and voidable, first, when the contract was entered into with fraudulent intent; second, when by the rules of law a fraudulent intent is presumed from the nature and character of the transaction. Of this latter class are sales made when there is no change, actual or constructive, of the possession of the property.</p> <p>2. If after a sale the property remains in the possession and control of the vendor as before the sale, the law conclusively presumes that the transaction is fraudulent as to creditors.</p> <p>3. When articles sold are cumbrous or ponderous, so that a removal is not practicable, it is not necessary that there should be an actual change of possession from hand to hand, but it is sufficient if the buyer assumes the control of the property in an open and notorious manner, and the seller is divested of every species of possession from which an inference of ownership might arise.</p> <p>4. Whether in such case all has been done that ought to have been done to constitute a delivery, is largely a question of fact to be determined by the jury under proper instructions.</p> <p>5. There is no difference in effect between a sale made with actual intent to defraud creditors, and one fraudulent in law. Notice of either is only notice of a fraudulent transaction not binding upon a creditor.</p> <p>6. In the case presented, this court holds, in view of the evidence, that there was no such change in possession of certain cribs of corn as the rules of law required, and that the sale thereof was fraudulent in law, and void as to creditors.</p>

<p>Justices—Jurisdiction of—Interpleader—Appeal and. Error—Attachment.</p> <p>1. Justices of the peace are courts of inferior and limited jurisdiction, and act only within the limits prescribed by statute.</p> <p>2. The proceeding by way of interpleader authorized in courts of record, is not applicable to cases of attachment before justices of the peace.</p> <p>3. In the case presented, this court holds that the justice in question must he presumed to have been acting under the provisions of Chap. 79, R. S., rather than under Sec. 29, Chap. 11, R. S., and that from his decision an appeal could only be taken by filing an appeal bond within five days.</p>

<p>In error to the Circuit Court of Scott County; the Hon. Cyrus Epleb, Judge, presiding.</p>

<p>Railroads—Negligence—Personal Injuries—Contributory Negligence by Passenger—Jumping from Train—Evidence—Instructions—Res Gestee.</p> <p>1. The law requires that carriers of passengers shall exercise the highest degree of practicable care and diligence consistent with the mode of transportation used, in protecting the latter from injury.</p> <p>2. In an action brought to recover from a railroad company for injuries alleged to have occurred to a passenger through its negligence, he having jumped from the train in question, this court holds, in view of the evidence, that the judgment for the plaintiff can not stand.</p> <p>3. In the case presented, this court holds as improper the admission in evidence of certain alleged declarations of servants of the railroad company touching the condition of the road and the liability of the company, the same not being a part of the res gestee.</p> <p>4. To recover in such case plaintiff must have been in the exercise of ordinary care when injured.</p>

C. C. Boggs, Judge, presiding. An action was brought by A. F. Aten for killing stock, and another action of the same nature was brought by John F. Aten. Several counts of each declaration allege the killing of hogs, while other counts allege the killing of one horse belonging to A. F. Aten, and the killing of three horses belonging to John F. Aten.

<p>Railroads—Negligence—Flooding of Farm Lands—Solid Embankment —Evidence—Instructions—Extraordinary Flood.</p> <p>1. A railroad company is bound to bring to the construction of its works a degree of engineering skill that will permit no negligent and improper construction.</p> <p>2. The common law duty of a railroad company is to so construct its road, where it crosses a water-course, as not to impair the usefulness thereof.</p> <p>3. Such duty is a continuing one, and each overflow caused by the negligence or want of skill of the company, creates a new cause of action for damages suffered, and this is so, although the party injured acquired his interest after the creation of the obstruction.</p> <p>4. It is for the jury to determine from the evidence whether a flood was an extraordinary one, but the court may give the jury a legal test by which to apply the evidence and determine the fact.</p>

<p>Railroads—Negligence — Injury to Stock—Evidence—Practice—Witnesses.</p> <p>1. A jury has not’the right from mere whim or caprice to reject the testimony of an uncontradictcd and unimpeached witness.</p> <p>2. In an action brought to recover from a railroad company for the killing of. stock, the same being alleged to have occurred through its negligence, the report of the section foreman to the company and his opinion as to the cause of the injury is not competent testimony.</p>

<p>Appeal from the Circuit Court of Richland County; the Hon. W. C. Jones, Judge, presiding.</p>

<p>Ik error to the Circuit Court of Lawrence County; the Hon. W. C. Jokes, Judge, presiding.</p>

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

Clair County; the Hon. B. R. Burroughs, Judge, presiding. This is an action on the case brought by defendant in error against the plaintiff in error to recover for personal injuries received by him while on the track of the road of the plaintiff in error, he being struck by an engine of the Louisville & Hashville Railroad Company.

M. 0. Cbawford, Judge, presiding. On the 27th day of December, 1888, H. P. Tuthill, agent of appellant, issued a certificate of the appellant company, insuring appellee in the sum of $1,000 on fruits and vegeta-' bles, boxes, barrels, crates, tools and box materials contained in his warehouse building on Illinois Central right of way at Anna, Illinois. That certificate was issued subject to all conditions of open fire policy number 139,827, issued by the appellant company.

<p>l$r ebrob to the Circuit Court of St. Clair County; the Hon. Geokge W. Wall, Judge, presiding.</p>

<p>Railroads — Negligence—Flowage of Crops — Solid Embankment — Limitations—Evidence—Instructions.</p> <p>1. Expert testimony is inadmissible in a controversy where the relation of certain facts and their probable result can be determined without special skill or study.</p> <p>2. The issue in a given case being as to whether a railroad embankment caused an obstruction to the flow of water in consequence of which certain lands of the party bringing the action were flooded, one of his witnesses should not be asked upon cross-examination as to his opinion whether such lands would have been flooded if there had been no deposit of debris brought down by a certain stream, such question being irrelevant and improper cross-examination.</p> <p>3. When a crop planted is not up when destroyed, the value thereof must be estimated upon the basis of rental value and cost of seed and labor; when the crop is more or less matured so that the product can be fairly determined, the value of the crop when destroyed constitutes the measure of damages.</p> <p>4. In the case presented, this court holds certain questions sought to be asked touching rental value and cost of labor in raising crops, proper as a. matter of cross-examination, in order to test the fairness and determine the basis on which the witness fixed the value of the crop destroyed, but that the sustaining of the objections thereto was not such error as would warrant a reversal.</p> <p>5. An instruction is erroneous which sets forth that there can be no recovery where a railroad embankment, which has been treated as a permanent obstruction by the parties to a given suit, was created more than five years previous to the institution thereof, the evidence showing the same to have been increased in height during such period.</p> <p>6. It is proper to refuse an instruction, the substance of which is contained in one given.</p> <p>7. An instruction not based upon the evidence should be refused.</p> <p>8. The right of an owner of land bounding an inland stream to confine the waters thereof to the original channel, must be exercised with reference to permitting the flow to continue, and not an absolute obstruction thereof.</p> <p>9. This court holds as proper the refusal of certain instructions asked on behalf of the defendant, the same setting forth in substance, first, that if it appears that the making of a certain embankment was warranted and necessary, the same being done carefully and in a workmanlike manner, actions for injuries caused thereby must be instituted within five years, and second, that a purchaser of land so injured takes the same in its depreciated condition, and without any right of action, they ignoring the question as to whether the work was done in accordance with skillful engineering and proper construction with reference to the rights of adjacent owners.</p> <p>10. A railroad company erecting a solid embankment over a watercourse, can not escape liability for injury caused by flown ge of adjacent lands upon the plea that the same resulted from an extraordinary flood; a proper outlet should he provided in such cases.</p> <p>11. The rule of law in this State touching regular watercourses and surface water is the same.</p>

<p>Railroads—Negligence—Flousage of Crops—Solid Embankment.</p> <p>1. Where there is evidence of injury by water coming from different sources by different causes and all creating damage, the jury in a given case must be left at liberty to estimate, as best they may, from the evidence, how much of the whole damage was occasioned by the water coming from a particular source from a particular cause. The same rule must be applied when the court tries the case without a jury.</p> <p>2. Where an injury has been caused by an act in one county, to land situated in another county, the venue may be laid in either.</p>

<p>Fixtures—Mortgages—Liens.</p> <p>1. Articles personal in their nature retain the character of personalty by agreement of parties, although the same are attached to the realty in such a manner that without such agreement they would lose that character, provided they are so attached that they may be removed without material injury to the article itself or the freehold.</p> <p>2. Where chattels are sold to the owner of the soil on an agreement that their character as personal property is not to be changed, and a chattel mortgage is taken thereon to secure the purchase money, a prior mortgagee of the land can not claim them, although subsequently annexed to the freehold.</p> <p>3. In proceedings to foreclose a chattel mortgage on heavy machinery, a subsequent purchaser of the same and the land upon which it is located, with notice of the mortgage, takes the premises subject to the chattel morlgage, and a subsequent mortgagee would stand in no better light than a subsequent purchaser.</p> <p>4. A clause in a real estate mortgage setting forth that it is given subject t.o a chattel mortgage is notice of such fact to the mortgagee.</p> <p>5. Where, in such case, the chattel mortgage is not, in fact, executed until after the real estate mortgage, such clause will protect the mortgagee in the chattel mortgage by way of estoppel.</p> <p>6. Persons named were made defendants to certain cases wherein material-men’s liens were sought to be enforced upon the property of a coal company. They set up a lien by virtue of a certain contract and chattel mortgage upon machinery furnished said coal company, and filed a cross-bill to foreclose such mortgage, there being a real estate mortgage upon the property where such machinery was located; this court holds that said cross-bill was properly filed, that the property described in the chattel mortgage was not so attached to the realty as to become a part thereof, and that the lien of the mortgagees therein was not subject to either the lien of the material-men or the real estate mortgagees.</p>

<p>Guardian and Ward—Final Account—Exceptions to—Dower—Assignment of—Practice.</p> <p>1. As a matter of practice each item in an administrator’s account rendered, is a separate claim depending alone upon its own merits, and as to each item judgments are separate, and the same principle would apply to a guardian’s report,</p> <p>2. Where, in a given controversy, certain exceptions to a guardian’s accoünt are overruled and the ward appeals, and an order sustaining other exceptions is excepted to by the guardian, who sues out a writ, of error and brings the record to this court, assigning error therein, and the ward assigns cross-error, both proceedings may properly be incorporated in one record.</p> <p>3. The failure of a guardian to attempt to loan the funds of his ward within a reasonable time from the receipt thereof, is a neglect of duty to such an extent as to- make him liable for interest. In the case presented, sixty days are held to be such time.</p> <p>4. A ward should not be called upon to pay attorney’s fees, made necessary by the negligence of the guardian.</p> <p>5. When a step-father takes his step-child into his family as a member, and services are rendered by the child and accepted, there is no liability on the part of -the child for board. But in the settlement of estates and the accounting of guardians, the rule also is, that equitable "rules will be applied. Therefore, it is held in the case presented, the step-father having kept his step-children in his family after their mother’s decease, she having requested it, they having an estate and he being financially embarrassed, that he was entitled to compensation" for their board.</p> <p>6. This court holds that defendant should not be credited with one-third of the income of certain farm lands, he claiming the same by virtue of his rights of dower in the real estate of his deceased wife, the fee thereof being in his wards; as to them damages for the non-assignment of dower could only be had, from the date of filing a petition for such assignment.</p> <p>7. The guardian, in this case, as surviving husband, not being entitled to any portion of such income because of no demand for assignment of dower, it follows, asa necessary consequence, that he would not be liable for any part of the expenditures in keeping up the aSairs of the farm improvements and the taxes thereon.</p> <p>8. The fact that one member of a firm is in danger of a criminal prosecution will not justify all of its members giving a chattel mortgage upon firm property to secure his individual debt, the result being to render worthless a firm indebtedness to wards of another member thereof.</p>

<p>Accident Insurance—Policy—Conditions—Injury Received While Fighting.</p> <p>1. The fact that a person insured in an accident insurance company engaged in a fight, though he himself was not the aggressor, brings his injury, received as the result thereof, within a condition in the policy providing that it would not cover accidental injuries resulting from, or caused directly or indirectly, wholly or in part, by fighting.</p> <p>2. Where such company contracts to indemnify a person injured for loss of time when wholly disabled from attending to his ordinary business, there can be no recovery, the injury being so slight as not to seriously interfere with the prosecution thereof.</p> <p>3. This court reverses the judgment for the plaintiff in the case presented, he being an attorney whose thumb was injured during an altercation, said injury interfering in only a slight degree with the practice of his profession.</p>

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

Appeal.from the Circuit Court of St. Clair County; the Hon. B. R, Bukboughs, Judge, presiding. This is a bill for injunction filed by the complainant, alleging that he is a resident of East St. Louis and the owner in fee of real estate fronting on Broadway in said city on which is a building in which he carries on business.

<p>Criminal Law—Trespass Vi Et Armis—Assault—Practice—Amendmeats—Continuance—New Trial.</p> <p>1. A new trial will not be granted to enable a party to impeach a witness where there is other credible evidence that tends to sustain him.</p> <p>2. It is proper to deny a motion for a continuance upon the ground of absence of a witness, it being alleged that he would testify in a certain manner if present, when it is admitted by the other side that he would so testify.</p> <p>3. Where á declaration sets forth that a defendant on divers days and times between days specified, assaulted the plaintiff, any number of assaults within that period may be .proved.</p> <p>4. Whether or not an assault by.a man upon a woman is to be looked upon as having been made with a view to carnal intercourse, is a question to be determined by the jury from the evidence adduced.</p>

<p>Appeal from the Circuit Oourt of Perry County; the Hon. George W. Wall, Judge, presiding. ,</p>

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

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

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

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

<p>tu error to the Circuit Coart of Madison County; the-Hon. B. B. Burroughs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. William H. Sutler, .Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair County; the Hon. William H. Suyder, Judge, presiding.</p>

<p>Administration—Claim of Daughter—Witnesses—Subdivision 4, Sec. I, Chap. 39, R. S.—Sec. 5. Chap. 51, R. S.—Presentation of Claim—Costs.</p> <p>I. In a controversy involving a claim by a child against his father’s estate for services rendered for the father at his request, the fact that the mother of such claimant is administratrix of her husband’s estate, will not prevent her from testifying in his behalf, nor will the relation to the estate of such administratrix by way of her interest under the statute regarding descents, prevent her being called as a witness in such case.</p> <p>2. A mother may in such case testify that at her deceased husband’s request she wrote a letter to a child of age and earning his living at a distance, asking him to return home and remain. She acts in such case as agent of her husband in view of Sec. 5, Chap. 51, R. S., but she will not be allowed to testify as to labor performed, money advanced and the like.</p> <p>3. Where in such case such child returns and takes part in the labor incident to home life, although there is no express agreement for compensation, an intention to compensate will be implied.</p> <p>4. While a claimant who does not file his claim in the County Court on the day of adjustment may be liable for costs, this does not follow upon appeal from judgment for the claimant to the Circuit Court as to the costs therein.</p> <p>5. Although the claimant in such case is not competent as a witness in chief, he is competent to testify in rebuttal to conversations and transactions testified to by other witnesses called by,the opposite party.</p>

<p>Master and Servant—Recovery of Wages—Traveling Salesmen—Duty of—Attorney's Fees—Laws of 1889, 362.</p> <p>1. It is for thejury to determine what the oral contract of service was in a given case, and whether it was complied with by the employe.</p> <p>2. The law impliedly imposes upon a traveling salesman the duty of exercising reasonably good judgment and care in making sales.</p> <p>3. This court holds that the evidence in the case presented did not warrant the allowance of the attorney’s fee in question.'</p>

<p>Practice—Imperfect Record.</p> <p>This court declines to interfere with the judgment for the defendant in the case presented, the record not purporting to contain all the evidence introduced in the court below.</p>

<p>Real Property—Contract to Sell—Specific Performance.</p> <p>1. It is too late for a person in possession of lands under a contract to convey, to object to a deed tendered after examining the same, and stating that it was satisfactory.</p> <p>2. Upon a bill filed, asking that the purchase price of certain lands in possession of the defendants be paid with interest, or that an account he taken of rents and profits derived from said lands, and the original purchase money with the rents and profits should be paid, a certain contract of sale thereof having been entered into, the defendants having paid a nominal sum and entered thereon, this court holds, that complainants were not, barred through laches, from maintaining their bill, and declines, in view of the evidence, to interfere with the decree in their behalf.</p>

<p>Practice—Forfeiture cf Recognizance—Payment of Costs.</p> <p>1. A mere offer, in a given case, to pay the costs of a recognizance, is not a literal compliance with the statute providing that a forfeiture thereof shall not be set aside until such costs are paid, and until actually paid, sureties who have caused the arrest and return of an absconding defendant, are not entitled to an order setting aside such forfeiture.</p>

<p>Railroads—Negligence—Defective Fence and Gate—Farm Crossing— Contributory Negligence.</p> <p>1. The question of contributory negligence in a given case is for the jury-</p> <p>2. In an action brought to recover from a railroad company for injuries to a horse, alleged to have occurred through its negligence, this court holds that the jury were justified by the evidence in finding defendant guilty of wilful negligence in permitting the gate to remain insecure, and unfit for the use it was put to, for the length of time it was maintained in that condition after notice.</p> <p>3. In such case it is a question of fact for the jury to determine from the evidence, whether a given fence was so negligently and improperly constructed and maintained as to be more dangerous to stock not breachy or unruly than it would have been if reasonable Care had been used in building and maintaining it, and whether or not these acts of negligence were the proximate causes of the injury.</p> <p>4. A railroad company, irrespective of a statute, may erect fences inclosing its right of way, and construct gates at farm crossings, but in the exercise of such rights it must so act as not to negligently injure another; failing in this regard it must respond in damages for injuries arising from such failure.</p> <p>5. It need' not be certain that at the time the act is done the damages will ensiie.</p>

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

Clair County; the Hon. B. H. Caney, Judge, presiding. The Crown Coal Company brought this suit in assumpsit against appellant to recover treble damages and attorney’s fee under the provisions of Chap. 114, E. S., prohibiting unjust discrimination in the rates charged for the transportation of passengers and freight over railroads in this State. The declaration consisted of two counts.

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

<p>Practice—Placita—Necessity Therefor.</p> <p>The judgment is reversed in the case presented, the record containing no placita or convening order of court, it not appearing before what judge the cause was tried, or whether it was heard before the judge who signed the bill of exceptions. It is not the office of the bill of exceptions to supply any part of the record proper.</p>

<p>Sales.</p> <p>In an action brought to recover for certain brick sold, there being a contention as to the price thereof, this court, declines, in view of the evidence, to interfere with the judgment for the defendant.</p>

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

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

<p>Railroads—Negligence of—Personal Injuries—Failure to Signal— Grossings—Practice.</p> <p>1. It is for the jury in a personal injury case to decide from the evidence whether the statutory signals were given upon a certain occasion.</p> <p>2. The mere failure to ring a bell or sound a whistle, does not create a liability. It must be shown, in addition, that the injury was occasioned by such negligence, and that the person, when injured, was in the exercise of ordinary care.</p> <p>3. An appellate court can not determine whether instructions were properly refused without knowing what instructions were given. The abstract of an appellant is full notice to an appellee of the condition of the record in a given case, and such court must assume that if the record was deficient, bis counsel would have, had it corrected.</p> <p>4. In an action brought to recover damages from a railroad company for personal injuries alleged to have been suffered through its negligence, this court holds, in view of the refusal of certain instructions touching care of the plaintiff and negligence of the defendant, asked by the defendant, that the judgment against it can not stand, the same being material for the proper presentation of the law of its side of the case.</p>

<p>Railroads—Negligence of—Failure to Fence—Killing of Hog.</p> <p>1. A railroad company is not bound to fence its track at a point used by the public in the transaction of its business therewith.</p> <p>2. In the absence of evidence of common law negligence, a person can not recover for injury to- stock at a point which the company was not bound to fence.</p> <p>3. The burden of proof is on the plaintiff to show that the place in question was required to be fenced.</p>

<p>Contracts—Payment of .Debt of Another.</p> <p>1. A promise to pay the debt of a retail dealer to a wholesale merchant as a part of the consideration of a sale of the stock of such retail dealer to the promisor, is founded on a legal consideration.</p> <p>2. If the promise is in the nature of an original undertaking to pay the debt of a third party, and is founded on a valuable consideration received by the promisor, it is not within the statute of frauds.</p> <p>3. Such promisor can not defeat recovery of the debt he promised to pay, because of any secret agreement he may have had with the original debtor.</p>

<p>Practice Act, Sec. 30—Sec. 49, Chap. 79, B. S.</p> <p>1. 'Sec. 80 of the Practice Act, which permits a defendant havingclaimn or demands against the plaintiff in a given action, to plead the same, or give notice thereof under the general issue, or under the plea of payment, and provides that the same or such part thereof as he shall prove on trial, shall be set off and allowed him, is not mandatory. It differs in that respect from Sec. 49, Chap. 79, R. S., which requires parties to suits before justices to bring forward all existing demands which are of such a nature as to be consolidated, and which do not exceed $200 when consolidated.</p> <p>2. The commencement of a suit in the Circuit Court will not bar or preclude the defendant therein from bringing a suit in a justice court against the party bringing the same.</p>

<p>Replevin—Husband and Wife—Sales«</p> <p>1. A wife may not, without authority, deliver to the consignor, goods sold and consigned to her husband, he having deserted his family.</p> <p>2. In an action of replevin brought to recover a quantity of liquors seized by the sheriff under a writ of attachment sued out by the creditors of a party named, this court holds, in view of the evidence, that plaintiff’s remedy is by suit upon the contract for the purchase money, and that the judgment for the defendant can not be interfered with.</p>

<p>Bailroads—Negligence of—Immoderate Bate of Speed—Ordinance— Negligence of Postal Clerk—Throwing of Mail Sacks.</p> <p>1. A railroad company must, in the use of its franchise, so exercise its rights as not to negligently injure others, and is responsible for the negligent acts of its servants, and for the habitual carelessness which it knows of and permits to be practiced by others on its trains, and is also liable for the negligence of any other company or person whom it permits to use ils road, and this rule applies to postal clerks.</p> <p>2. A railroad company permitting its train boys to sell papers upon its depot platforms to citizens of towns through which its road passes, is responsible for injuries to such persons occasioned by the wilful negligence of its servants in running its trains at a high and unlawful rate of speed, and the throwing of mail sacks from such swiftly moving trains upon the same.</p> <p>3. In the case presented, this court holds as proper, evidence going to show that people usually came upon the platform when trains arrived, without objection by defendant; that it was likewise proper to introduce evidence touching the practice of throwing mail sacks from moving trains upon the platform, but that it was not proper to permit the plaintiff to show by a witness that the latter was struck by a mail sack near the platform, two years before.</p> <p>4. Upon the question of damages in such case, it is improper to admit evidence touching the expense of supporting the family of the person killed per year at the time of the death. The damage recoverable is just compensation for the loss of means of support which deceased might have provided had he lived.</p> <p>5. An instruction in such case, setting forth that defendant is liable for all damages occasioned by a certain negligent act, should not be given.</p>

<p>In error to the Circuit Court of Franklin County; the Hon. George W. Young, Judge, presiding.</p>

<p>Schools—Powers of Directors of—Secs. 42 and 48, Chap. 122, R. S.— Mandamus—Injunctions—Practice.</p> <p>1. No appeal lies from an order in vacation denying a motion to dissolve an injunction.</p> <p>2. Mandamus is a remedy at law and lies to compel the performance of a legal act and the proper expenditure of public funds.</p> <p>3. A court of chancery by its writ of injunction affords the only complete and adequate remedy to prevent the doing of an illegal act.</p> <p>4. A citizen is entitled to the aid of a court of equity to prevent the illegal expenditure of public funds in the erection of a school house upon a site not lawfully selected.</p> <p>5. The fact that such citizen voted at an illegal election, the result of which decided no question, can not operate to deprive him of the right tc institute such proceedings.</p> <p>6. A board of school directors can exercise no other powers than those expressly granted, or such as may be necessary to carry into effect' a granted power.</p> <p>7. - In view of Sections 42 and 48, Chap. 122, R. S., a school board may not locate the site of a school house, without a selection being made by a majority vote at an election duly held, unless no locality receives such vote.</p>

<p>Municipal Corporations—Ordinance—License—Truckman.</p> <p>In a controversy touching the violation of a municipal ordinance , requiring truckmen and other common carriers to be licensed, this court holds that the penalty provided for was intended to be imposed upon those only who carried on business within a given municipality without a license, and that defendant, who hauled goods from another city wherein he was licensed, to a depot within the boundaries of complainant, could not be considered as having been guilty of a breach of said ordinance.</p>

<p>Appeal .from the Circuit Court of Madison County; the Hon. Alonzo S. Wildebman, Judge, presiding.</p>

<p>Trover—Absence of Demand.</p> <p>The fact being that the defendant in an action of irover was an innocent purchaser of the property involved, in good faith and for value, from one who had the physical possession of it with every indicia of actual ownership, proof of a demand and refusal is necessary, there being no proof of an actual conversion, in order to maintain the action.</p>

Alonzo S. Wildebmam, Judge, presiding. On August 26, 1874, Metcalfe & Bradshaw formed a partnership which continued until December 15, 1885, and was then dissolved by mutual consent, Metcalfe retaining possession of the firm books of account. By the provisions of the written articles, the parties associated themselves together for the purpose of practicing law under the firm name of Metcalfe & Bradshaw, for the term of five years.

<p>Master and Servant—Negligence of Master—Machinery—Defects in— Notice.</p> <p>1. It is a question of fact for the jury to determine in a personal injury case whether or not the person injured knew at the time he went to work at the machine at which he was working when killed that it was defective and unsafe, and with such knowledge, voluntarily incurred the peril o£ operating it, and whether or not he was in the exercise of ordinary care for his own safety at the time of the injury.</p> <p>2. In such case, evidence going to show that the defendant’s employes, regarded the same to be unsafe, is admissible.</p> <p>3. In an action brought by the administratrix of a railroad employe to recover for his death, the same being alleged to have been caused through its negligence in placing him at work with a defective engine, this court declines, in view of the evidence, to interfere with the judgment for the plaintiff. •</p> <p>4. The antecedents of a witness are a proper subject-matter of inquiry upon cross-examination, and a ruling allowing such cross-examination, but disallowing undue prolixity, is proper.</p>

<p>Railroads—Negligence of—Injury to Stock—Failure to Feme—Nog— Contributory Negligence—Evidence.</p> <p>1. The mere fact that the owner of stock allowed the same to run at large, contrary to law, and it is injured by a railroad train upon an unfenced right of way, the law requiring the same to be fenced, will not bar a recovery, where the company’s servants failed to use reasonable care and precaution, under all the circumstances of the case, to avoid the injury.</p> <p>2. In the case presented, this court holds that the evidence justified the jury in finding defendant’s engineer guilty of such gross and wilful negligence as warranted a verdict for the plaintiff, notwithstanding the fact that he allowed his animal to run at large.</p> <p>3. This court holds as erroneous, the failure to exclude a' remark made by the plaintiff while testifying, its substance being that, domestic animals were allowed to run at large in his township, there being no stock law, for the reason that it was not the best evidence to prove the fact.</p>

<p>Negotiable Instruments — Note—Limitations — Payments — Practice— Principal and Surety.</p> <p>1. A new trial should not be granted upon the ground of newly discovered evidence, the same being merely cumulative in character.</p> <p>2. A promise by a surety on a note to pay the same in whole or in part must he in writing in order to take it out of the statute of limitations.</p> <p>3. If part payment is relied upon it only operates as to the one making or contributing thereto.</p>

<p>Sales—Warranty—Breach—Principal and Surefy—Jurisdiction.</p> <p>1. A plea in abatement to the jurisdiction of the court by a defendant in a given case, made after full appearance by him, is unavailing.</p> <p>2. No action can be maintained by a surety on a warranty to bis principal.</p> <p>S. In an action brought to recover for an alleged breach of warranty of certain harvesters, this court holds, in view of the evidence, that the judgment for the plaintiff can not stand.</p>

<p>Master and Servant—Negligence of Master—Improper Appliance—Personal Injuries.</p> <p>Where an employe suffers personal injury through the negligent construction of an appliance he is obliged to use, no notice of its condition to the employer is necessary in order to warrant a recovery.</p>

<p>Appeal from the Circuit Court of Randolph County; the Hon. Gteobge W. Wall, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison County; the Hon. Alonzo S. Wilderman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jackson County; the lion. W. W. Bare, Judge, presiding.</p>

<p>Master and Servant—Negligence of Master—Railroad Compaña— Personal Injuries—Defective Draw-bar—Cars with Platforms of Unequal Height—Fellow-servants.</p> <p>1. It is proper to refuse an instruction, the substance of which is embodied in one given for the same party.</p> <p>2. Likewise one invading the province of the jury, by instructing them in a given case that there was no evidence to prove a material fact.</p> <p>3. It is not necessary in an action brought to recover for the death of a servant through the alleged negligence of his employer, in order to recover substantial damages, that proof be introduced as to the amount contributed by deceased in his lifetime toward the support of the next of kin, in view of the uncontradicted facts that he actually did contribute to the relative’s support, and that such person actually was in need of help. ,</p> <p>4. How such pecuniary damage is to be measured, must be largely left to the discretion of the jury in a given case. This court holds the sum of $2,000 to be reasonable in the case presented.</p> <p>5. A master must use reasonable diligence to provide his servant with reasonably safe machinery and apparatus, which such servant is employed to operate. This law is not only applicable to the machinery owned by the master, but to other machinery and apparatus owned by another person than the master, which ihe servant is required in the line his duty to use, and the rule applies to cars of other roads.</p> <p>6. No defect is latent that an inspection will disclose.</p> <p>7. A, master is not entitled to notice of defects in appliances which he is bound to furnish in proper shape for the work they are called upon to perform.</p> <p>8. In the case presented, this court holds that defendant was guilty of negligence in furnishing a certain car belonging to another road for the use of its.employe, who was killed through such use, without giving him notice of its condition.</p>

<p>Principal and Surety—Constable’s Bond—Action on—Exemptions—■ Judgment in Procer against Principal.</p> <p>X. When the eondilion of a bond is to abide the order or judgment of a court, the action of a given court binds the surety, though he had no opportunity to influence it; but if it be to perform an act in pais, then such a judgment against the principal is not evidence against the surely.</p> <p>2. If, upon the schedule presented by a debtor, it was the duty of an officer to release property attached, as exempt, and he failed to do so, all the facts from which the duty arose should be stated in the declaration in an action upon the officer’s bond.</p> <p>3. Whenever facts alleged involve a question of law. they must he so stated that the court can see that the legal conclusion relied upon follows.</p> <p>4. In an action on such bond the recovery must be against all the defendants, or none.</p> <p>5. This court holds that the averment of the declaration in the case presented was insufficient, and declines to interfere with the judgment for the defendants.</p>

<p>' Banks—Deposits, General and Special—Bailments.</p> <p>1. A special deposit is a deposit to be returned in the identical thing; the very bills or coins are to be returned.</p> <p>2. A general deposit is one which is to be returned in kind, not the same bills or coins, but the same amount of money.</p> <p>3. Where money is received in a bank as a special deposit for safe keeping, with the understanding that it shall be cared for and the identical money returned, the bank has no right to use the money in its business, but where the money is deposited with the understanding that a like sum shall be repaid, the transaction is in the nature of a loan, the relation of debtor and creditor being created, and no trust can be predicated on such a deposit.</p> <p>4. A deposit must be considered to be a general deposit where the money in question has been mixed with the funds of a bank by the acquiescence, or with the consent of, the depositor.</p> <p>5. In the case presented, this court holds, in view of the evidence, that the deposit in question was general, not special.</p>

<p>Street Railroads—Injury to Third Persons—Assault by Conductor— Trespasser—Witnesses—Fees in Excess of Legal Rates,</p> <p>1. The credibility of a witness should not be impeached for the reason that a litigant pays him a moderate sum in excess of his legal "fees for attending a given trial.</p> <p>2. In an action brought to recover from a street railway company for injury to a boy while “stealing a ride,” the same being alleged to have occurred through being kicked oS a moving car by the conductor thereof, this court holds, in view of the evidence, that the judgment for the plaintiff can not stand.</p>

1st error to the Superior Court of Cook County; the Hon.' John P. Altg-eld, Judge, presiding. An action of assumpsit was begun in the Superior Court of Cook County against H. F. Cooper and W. D. Cooper as co-partners. A writ of attachment in aid being issued, summons was served on W. D. Cooper by the sheriff of Cook County.

Kirk Hawes, Judge, presiding. This is an appeal from an order sustaining a demurrer and dismissing for want of equity a bill filed by appellant.

Frank Scales, Judge, presiding. Appellant, in the spring of 1889, contracted to and did work and furnished materials on the premises of appellees in Chicago; on the 13th of June, of that year, appellant furnished appellee with a sworn statement of the names of certain material men and laborers, but failed to state the rate of wages of any of the workmen, or how much had been paid to either of them, or the terms of contract with any of them.

<p>Sales—Mining Refusal—Conditional Payment—Bailments.</p> <p>1. In an action brought to recover money paid as one-third payment in the purchase of a mining refusal, this court holds that the ease was fairly left to the jury upon the question whether the money was paid under an agreement that it should be returned if other parties did not pay the balance, and that the judgment for the plaintiff can not be interfered with.</p> <p>2. Such being the agreement in a given case, defendants, in a suit based thereon, are personally responsible, especially where they acted for another who was a non-resident.</p>

Bichard W. Clifford, Judge, presiding. Appellant leased to appellee certain premises in Chicago.

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

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

<p>Creditor's Bills—Fraudulent Conveyance to Debtor's Wife—Laches.</p> <p>1. Upon a bill filed to subject certain real estate to the payment of a judgment obtained against a married man, the same having been conveyed by himself and wife to a third, party, who in turn conveyed it to the wife, this court holds, in view of the evidence, it being claimed that the premises were a homestead, and bought with the wife’s money, that the amount of money so invested by her should be ascertained, and that to such extent, in addition to $1,000 for the homestead, if the premises should be sold, she is entitled to be paid, but without interest.</p> <p>2. Should property in such case be sold, the homestead may be claimed under the statute at the sale.</p> <p>3. This court holds that no laches is imputable to the plaintiff in suffering several years to elapse before attempting to assail the validity of the conveyance in question.</p>

John P. Altgeld, Judge, presiding. Appellant having given to his daughter a lot on West Monroe street, in the city of Chicago, built a house thereon.

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

<p>Contracts—Appellate Court Hules and Practice.</p> <p>1. No joint liability exists upon separate individual contracts although for the same matter.</p> <p>2. Parties can not be sued jointly before a justice who can not be so sued in a court of record on the same cause of action.</p> <p>8. It can not be presumed that by permitting an action of assumpsit to be brought upon a sealed instrument, the legislature intended to make joint contractors of those who separately, part by deed and part by parol, had engaged for the same thing.</p> <p>4. It is the professional duty of counsel to know the condition of the records of the causes in which they are engaged, and if they by their conduct lead the court to assume a particular condition, and the court has acted upon that assumption, the court will not go back upon itself, unless justice requires it.</p> <p>5. If parties to -a suit expressly or tacitly waive compliance with a rule .of this court, it may in its discretion permit them to proceed upon the real merits of the controversy between them.</p>

Geokge Dkjggs, Judge, presiding. Appellants were parties doing business as live stock commission merchants ■ at the Union Stock Yards at Chicago; appellee is a banker at Brookfield, Missouri. One F. M. Harrison in the latter part of 1887 went from Chicago to Brookfield and began to purchase stock and ship it to appellants.

<p>Judgments and Decrees—Interest—Practice.</p> <p>1. A higher rate of interest than six per cent can only be stipulated for in written contracts.</p> <p>2. The words of a decree must be read and understood in the light of the law.</p> <p>3. Where a decree provides that the rate of interest agreed to be paid by a person deceased shall be allowed, nó legal or valid agreement being shown for more than six per cent, only that rate can be charged. -</p>

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

O. H. Hoeton, Judge, presiding. Appellant made a written contract of sale to appellee of certain real property. One thousand dollars was paid down; payment of the balance was to be made in thirty days after an abstract of title made by a reputable abstract maker had been furnished and found satisfactory, and upon the delivery of a good' and sufficient warranty deed. Appellee was not satisfied with the abstract furnished and so notified appellant.

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

George Driggs, Judge, presiding. Williain'C. Grant in his lifetime received, loaned and collected certain moneys for one Thomas Odiorne. Odiorne lived in Massachusetts and transacted his business with Grant by way of correspondence. Thomas Odiorne died in 1873, his estate being administered by his brother, William H. Odiorne.

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

<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, Frank Scales, Judge, presiding.</p>

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

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

<p>Corporations—Debts of—Director's Liability—Bill to Enforce—Secs. IS and 25, Chap. 32, M. S.—Jurisdiction—Insolvency—Negotiable Instruments—Judgments and Decrees.</p> <p>1. The word “ creditor ” means a person to whom a debt is~owing by another person; standing by itseif it means creditor at large.</p> <p>2. Where a proceeding in a court of equity is to reach equitable assets, the remedy at law must first be exhausted, for the reason that there is no jurisdiction in equity while there remains an adequate remedy at law.</p> <p>3. Insolvency can be proved in proceedings at law without the evidence of the return of an execution unsatisfied; while that is required in cases where a creditor’s bill is filed, in other cases insolvency can be proved the same as any other fact.</p> <p>4. The secondary liability of an assignor on a promissory note may be made out by showing that the maker was insolvent without proving that a suit was brought against him and was unavailing; where the facts show that such an action would be unavailing, no action need be brought to establish the assignor’s liability.</p> <p>5. Insolvency is the condition of inability to pay one’s debts as they fall due, or, in the usual course of trade or-business; such insolvency alleged in a bill seeking to enforce the liability under Sec. 16 of the statute on corporations is sufficient.</p> <p>6. A court of chancery may submit an issue against a defendant to a trial by jury, and though ordinarily discretionary, such court may in a given case he bound to do so, where the law entitles the party to such trial.</p> <p>7. No judgment at law is necessary to determine that parties filing a hill to recover under See. 16 are creditors. They may establish that they are creditors and the amount of the indebtedness, and reach the fund or liability created by said section, and distribute it among all those for whose benefit it is created, by an original bill in chancery.</p> <p>8. In the case presented, this court holds that it was improper to refuse to grant leave to complainant to withdraw his replication to certain pleas, and to submit a motion to strike the same from the files for reasons staled therein; that the purely technical judgment on the issues made by the pleas as they stood, is the result of the court denying the motion, which should have been allowed, and that the judgment on the pleas can not stand, as it is a mere technical obstruction to reaching a just result in the case.</p>

Theodore Bbehtaito, Judge, presiding. This case was tried in the Superior Court on an agreed statement of facts as follows: Hugh Hughes is the owner of the premises on the southwest corner of Monroe street and California avenue, Chicago, Cook County, Illinois. In the spring and summer of 1891, and while still the owner thereof, Hughes built a three-story building on said premises.

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

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

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

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

Frank Scales, Judge, presiding. The Wabash Manufacturing Company received on consignment from appellants, paper to the value of §144.78, which it was to sell, and account to appellants for the proceeds.

Hemet M. Shepard, Judge, presiding. In the year 1887, Angie Page filed her bill to restrain the foreclosure of a mortgage upon the premises in question which she then owned. , On the 22d day of July, 1889, there was entered in the Superior Court in the said suit upon the cross-bill of the Mutual Building and Loan Association against Angie Page, Darius Morey and others, a decree of foreclosure of the said mortgage upon the said premises, the possession of which is now in…

<p>Appeal and Error—Practice.</p> <p>1. If upon appeal from the judgment of a justice it appears that the certificate to the transcript is clefeetivet a rule on the justice to supply a proper certificate may be obtained. - It is not proper to strike out the transcript on file, though the same be imperfect, it being suEcient to give the court jurisdiction of the subject-matter.</p> <p>2. There is no legal connection or repugnance between the denial of a continuance at one term, and a call for trial in the first week of the succeeding term.</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. Eichard W. Clifford, Judge, presiding.</p>

Biohard W. Clifford, Judge, presiding. Appellant being the owner of a lot on Clark street in Chicago, received from appellee a letter asking her if the property was for sale, and if so, for what price. She went to his office and told him he might sell it for §25,000 cash. September 11th she wrote to appellee, stating that she had decided to withdraw the property from sale. This letter he testifies he never received.

<p>Mandamus—Jurisdiction—Bill of Exceptions.</p> <p>1. In this State the judicial powers of government are vested in courts, and persons not members thereof can not exercise judicial functions.</p> <p>2. As an individual, a judge has no power to make judgments or judicial1 records; these things he can only do when he is acting as a court.</p> <p>3. The settling of a bill of exceptions is a judicial act.</p> <p>4. This court can not command one who is no longer a judge to exercise judicial functions—to do a judicial act.</p> <p>5. The rule that bills of exception settled and signed by the judge who tried the cause, although after the expiration of his' term of office, should be recognized as regular and valid, does not obtain in this State.</p> <p>6. This court has no power to settle a bill of exceptions, that is, make or altera portion o£ the record of a lower court as to a case tried therein; nor has it authority to set aside a judgment of an inferior court and grant a new trial unless reversible error is found in the record.</p>

Richard S. Tuthill, Judge, presiding. The action in this case was brought on a judgment rendered 'in the State of Michigan. The defendant pleaded the Illinois statute of limitations of five and ten years respectively, to which the plaintiff under leave filed four replications. Defendant having demurred to such replications, the court below sustained said demurrer and entered judgment for costs against the plaintiff.

Frank Baker, Judge, presiding. On the 27th of July, 1885, appellee obtained before a justice of the peace a judgment against appellant in an action of forcible detainer. Appellant, on the 1st day of August, perfected an appeal to the County Court. On the 3d day of August appellee issued a distress warrant and appellant’s premises were entered and his goods seized thereunder. It was admitted that appellee obtained judgment against appellant in the distress proceedings.

Murray F. Tuley, Judge, presiding. One Annie M. Miller filed in the Circuit Court her bill for an injunction restraining William J. Arkell and Lucy W. Drexel from interfering with her possession of certain premises, she claiming an interest therein by virtue of an alleged lease by Joseph W. Drexel, to her, of certain premises described as block five (5), etc., in certain, subdivisions of the north half (-£) of Sec. nineteen (19), township thirty-eight (38), range fourteen…

<p>Sales—Warranty—School Bonds.</p> <p>In a controversy touching the sale of certain school bonds which were forged, this courtholds, in view of the evidence, that the plaintiffs are entitled to a judgment in a sum named.</p>

<p>Negotiable Instruments—Notes— Partnership—Dissolution — Evidence of.</p> <p>1. The evidence in the case at bar was insufficient to justify a finding that appellant bank had notice of the dissolution of appellee’s firm prior to the executing of the notes sued on.</p> <p>2. Upon rehearing this court holds that notice that as between a person named and the defendant the latter had become but a surety, was as effectual to preclude the former from pledging the credit of the defendant as notice of the dissolution, if received, would have been, and that the judgment for the defendant must be affirmed.</p>

<p>Master and Servant—Duty of Employer to Keep Premises in Safe Condition, Extent of—Personal Injuries—■Stranger.</p> <p>The owner of a manufacturing plant is under no obligation to make all parts of the premises safe for a stranger to them to ramble through in the night, even if such person was at work for the owner in a part of the premises where there was no danger.</p>

<p>Municipal Corporations—Negligence of—Personal Injuries—Damages.</p> <p>1. Trial judges should exercise their powers to cut down excessive verdicts in personal injury cases.</p> <p>2. This court declines to interfere with a judgment for $15,000 in the case presented.</p>

Kirk Hawes, Judge, presiding. On February 16, 1888, E. A. Barnes began garnishment proceedings in the Superior Court of Cook County against George A.… Held: among other things, a note-for 1806.71 signed by one James Maguire and secured by mortgage on real estate in Tuscola county, Michigan; that said note was payable to the, order of and belonging to the said Margaret Austin, the same being held to secure the payment of 8200 by said Margaret Austin to said E. A. Barnes.

Kikk Blawes, J udge, presiding. On February 16, 1888, E. A. Barnes obtained judgment in the Superior Court against Margaret Austin and P.' L. Austin for 8259.39; the judgment being by confession upon a note dated December 7,1887, for §800, payable four months after date, with a warrant of attorney authorizing any attorney to appear at any time thereafter and confess a judgment for such amount as might appear to be due and unpaid thereon.

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

<p>Deed— Whether Intended asa Mortgage—Burden of Proof—Jurisdiction of Appellate Court—Freehold.</p> <p>1. This court affirms the decision of the court below, holding (hat ihfi evidence in the case at bar was insufficient to establish that the deed in evidence was intended by the parties as security for a loan.</p> <p>2. The decision of the Supreme Court in Kirchoff v. Union M. L. Ins. Co., 128 Ill. 199, 133 Ill. 368, holding that an appeal in such case properly lies to this court, followed.</p>

Loser C. Collirs, Judge, presiding. Appellant filed its bill against appellee, setting forth that it is a judgment creditor of one Charles H. Trivess, to the amount of over §2,000; that execution' has been issued upon the said judgment, and that said Trivess has no property or assets upon which the said execution can be levied; that the said Trivess on the 17th day of October, 1890, made a general assignment for the benefit of his creditors, under the statute of this State…

<p>Real Property—Contract for Sale of—Allegation of Breach—Action for Stipulated Damages—Parties.</p> <p>A contract for the sale of realty, providing that in case of default, the defaulting party should pay to the broker of the other party the sum of S'.OO as liquidated damages, this court holds, first, that before a broker could maintain his action for the sum specified, he must prove in addition to the default of the defendant that his principal had performed all that the contract required on his part, or that he was ready to perform, and, second, that the action should have been brought in the name of the principal, the brokers not having been parties to the contract, which was under seal, although it contained a provision in their interest.</p>

Elliott Anthony, Judge, presiding. In this action it appeared that appellees, merchants in Hew York City, upon the strength of a written statement to E. G. Dun & Co., made by Abraham Frezinski, concerning the financial condition of what he in such statement called the firm of A. Frezinski, doing business at the town of Iron Mountain, in the State of Michigan, sold to said firm of A. Frezinski a bill of goods on thirty days’ credit.

<p>Agency—Verdict for Defendant Ordered.</p> <p>In an action based upon a contract entered into by an alleged agent of defendant it is held: That the jury were properly instructed to find for the defendant, no evidence having been introduced tending to establish the alleged agency.</p>

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

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

O. H. Hoetoet, Judge, presiding. The appellants, Frederick W. Short, Edmund G. Short and Herman Prenzlauer, filed on June 11, 1891, by leave of court, an amended intervening petition in a case in chancery, pending in the Circuit Court, wherein Mary Kieifer, Jacob Kieifer, Peter Kieffer, Annie Kieffer, Kate Kieffer and Margaret Kieffer, were complainants in the bill, and Frank Kieffer and Christian Kieffer, were defendants.

<p>Contracts — Construction of— Tender—When Waived— Practice—Reversal without Remanding.</p> <p>1. One party to a contract loses no rights by failing to make a tender contemplated by the contract, where the other party was not ready to perform on his part.</p> <p>2. When a jury trial is, under the statute, waived, and the case tried by the court, this court may, on review, do what, in its judgment, the lower court ought to have done, and enter judgment accordingly.</p> <p>3. The correct practice requires the facts to be recited on the record here only when a judgment based upon the facts is reversed without remanding, or with final judgment on the cause of action; but when this court reverses that of the lower court for error in law, and refrains from remanding, the reason why it refrains from an act discretionary need not appear.</p>

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

<p>Mechanics' Liens—Action for Labor and Material—Requirements of Statute as Condition Precedent—Sec. 35.</p> <p>The making o£ the statement required by Sec. 35 of the Mechanics’ Lien Law is a condition precedent to the maintenance of an action by the contractor upon his contract.</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. Richaed S. Tuthill, Judge, presiding.</p>

<p>Trespass Qu. Cl.—Construction of Statute—Responsibility of Agent— Ejectment. -</p> <p>1. The statutory provision abolishing, after a recovery in ejectment, the action for mesne profits, and substituting a suggestion in assumpsit, does not apply to an action against a party not a defendant in the ejectment suit.</p> <p>2. The execution of a lease by a person acting as agent for another, authorizing the continuation of a trespass, makes the party executing such lease liable to the party entitled to the possession at the time of the commission of the trespass.</p>

S. P. McConnell, Judge, presiding. The principal question in this case is, whether Charles Shannon, the deceased, was exercising ordinary care for his own safety at the time when, working in appellant’s switch yard, he was struck by a moving train and killed.

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

S. P. McConnell, Judge, presiding. In May, 1876, the John B. Jeffery Printing Company owed the First Rational Bank of Chicago $25,000, for which the bank held its note. The bank also held as security for this note, two judgment notes of the company aggregating $40,000, the property of Emma J. Jeffery, who had indorsed them to the bank to help the company.

Kikk Hawes, Judge, presiding. i, Appellants, January 17, 1891, filed their bill in' the court ■below, setting forth that on or about April 24, 1890, one D. F. Sable had the contract or was about to erect a building for one Aaron S. Berkowsky upon certain real estate in Cook county, and that appellants entered into a verbal agreement with the said Sable to furnish building material for the construction of said building; that the contract was for no specific amount, but for…

<p>Contracts—Alleged Breach cf—Whether Defendant Excused from Performance.</p> <p>Upon the case presented, this court holds that the defendant was justified in treating the contract upon which the action was brought as terminated by the act o£ plaintiff’s representative,</p>

<p>Appeal from- the Superior Court of Cook County; the Hon. Theodore Brentaho, Judge, presiding.</p>

Elliott Anthonv, Judge, presiding. In May, 1889, the Charles J. Johnson & Co. Company was indebted to appellant to the amount of about $1,200, and appellant was:pressing for payment. Johnson was also indebted to other creditors, among them, appellee, to whom Jphnson & Co. was owing $903.39 for rent and press work. For this a ninety-day note was given to appellee on May 15th.

<p>Replevin—Evidence—Identity of Goods—Value of, Expert Testimony— Instructions—Immaterial Error.</p> <p>It was not error in the case presented for the court to allow certain witnesses, who were shown to have had experience in dealing in second-hand furniture, to give an opinion as to the value of such goods without having seen them, upon the assumption that they had been truly described as to their general condition and appearance by other witnesses. The objection to such testimony goes to its weight and not to its competence.</p>

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

<p>Divorce—Construction of Statute—Practice—Witnesses .to be Heard in Open Court.</p> <p>1. An open court is a court formally opened and engaged in the transaction of judicial affairs to which all persons who conduct themselves in an orderly manner are admitted.</p> <p>•2. In a proceeding for divorce, where the defendant fails to appear and the bill is taken as confessed, a divorce can not be had upon the testimony of only one witness, examined in open court, and the deposition of one other witness.</p>

<p>Judgments and. Decrees—Judgment of Another State — Limitations— Revival of Judgment upon Writ ofSci. Fa.—Return of Nihil.</p> <p>1. Five years is the period of limitation in this State to an action on the judgment of another State.</p> <p>2. Judgments by default on returns of nihil upon writs of sei. fa., to revive judgments against defendants who had ceased to reside in the States where such judgments were entered, will not support actions against such defendants in another State.</p>

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

<p>Real Property—Contract for—Sale of—Execution of by Agent—Verbal Authority—Recording of Contract—Bill to Remove Cloud.</p> <p>In the case presented, a contract for the sale of real estate was executed by an agent, acting under parol authority; the vendor subsequently refused to complete the transaction, whereupon the contract was recorded; this court holds that, under the circumstances of the case, a bill to remove the cloud from the vendor’s title was properly sustained.</p>

<p>Statute of Frauds—Promise to Pay Debts of Another.</p> <p>The statute of frauds requires that the promise to pa,v the debts of another shall be in writing, and the common law requires such promise to be based upon a sufficient consideration, else the promise is not binding.</p>

<p>Fixtures—When Mirror a Part of Fealty—Error in Favor of Appellant—Practice.</p> <p>1. Upon the case presented, this court holds that the mirror, for removing which damages were sought, was a part of the realty.</p> <p>2. Appellant can not complain here of an error committed by the lower court in his own favor.</p>

John P. Altgeld, Judge, presiding. The plaintiff in this case, appellee, testified that he was a newsboy; that in May, 1877, in Chicago, at South Water street, he and his companion, a fellow newsboy, turned the corner of Fifth avenue and ran and jumped on a car; that he, plaintiff, ran along the side of the car, heard some one whistle and jumped on the front platform; that he was about to serve a passenger with a paper when his hand was caught between the railing of the car…

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

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

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

<p>Trust Deeds—Power of Sale—Death of Owner of Equity of Redemption—Construction of Statute.</p> <p>The statute forbidding a sale of property to he made under power of sale contained in a mortgage or trust deed where the owner of the equity of redemption of the premises covered by the mortgage or deed had died before such sale, is not retroactive so as to nullify provisions of a deed which were legal at the time the deed was executed and delivered. ’</p>

<p>Insurance—Mutual Benefit Associations—Action on Certificate—Limitations—Forfeiture of Membership — Notice of Assessments—Board of Directors, Powers of</p> <p>1. The fact that, in an action on a benefit certificate, parol proof of the death, intestate, of the member, and that the plaintiS was his widow, is necessary, does not take the case out of the category of actions upon written instruments the limitation o£ which is ten years.</p> <p>2. A provision of the by-laws of such organization, that members neglecting or refusing to pay assessments for thirty days from date of same cease to be members, is self executing, but the constitution and by-laws being silent on the subject of notice, the law requires it.</p> <p>3. Where the law requires notice and the method is not prescribed, it must be personal.</p> <p>4. Under the constitution of the appellant the beneficiary of a certificate issued by it is not finally concluded by the action of the board of directors in refusing to allow his claim.</p>

<p>Costs—Taxation of—Negligence.</p> <p>Upon the question whether the non-attendance of a witness was caused by the neglect of the appellant, this court holds that the evidence sustained the decision of the court below, that such negligence was the cause of the nonattendance.</p>

<p>Carriers—Action Against for Lost Baggage—Evidence—Value of Articles Lost—Misnomer.</p> <p>1. Every one is presumed to know the value of articles in common use and it is not necessary to call a dealer to prove the value of such things.</p> <p>2. In case of loss of articles of personal wearing apparel, the owner is entitled to recover the value of such things to him, not what the same would have sold for in the market.</p> <p>3. That a party is known by one name as well as by another is a good replication to a plea of misnomer.</p>

<p>Practice—Master’s Report—Exceptions—Must be Definite,</p> <p>The report of a master is conclusive until it is shown to be wrong, and in order to raise the question whether it is right or wrong, the party dissatisfied with it must, by objections before the master, repeated as exceptions before the court, point out with reasonable definiteness the error or mistake alleged.</p>

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

George Dbiggs, Judge, presiding. This was an action of assumpsit. Tbe declaration contained, among others, a count for an account stated. It was shown that tbe parties for whose use the action was brought, sent to tbe defendants the following letter : Beak & Buciier, 112 Clark Street, room 504. Chicago, Dec. 26, 1885. Sea & Co., 122 State Street. Dear Sir:—I hand you herewith, account with Beak & Bucher against you, duly assigned to me.

,Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding. Appellant desiring to borrow money, made an arrangement with appellee to loan him the sum of $1,500, to be secured by his note and mortgage. Appellant prepared his note and mortgage, and had an abstract of title to the property brought down to date ready for inspection by appellee or her agent.

. Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding. The decree in this case finds that appellee holds the title to certain premises in trust for appellant; it also finds that appellee took such title under an agreement with appellant, the intent and meaning of which was that it should pay him the sums he paid in acquiring such title within a reasonable time, and that such reasonable time has long since elapsed.

<p>Verdict—Remittitur—Special Interrogatories—Practice.</p> <p>1. Although there were several disputed items included in a verdict, the fact that the trial court did not, in ordering a remittitur, specify to which item it applied, does not constitute an error for which this court will, upon the case presented, reverse the judgment.</p> <p>2. Special interrogatories should be single and not relate to evidentiary facts merely.</p> <p>3. Where a jury fails to answer special interrogatories, counsel should call attention of the trial court to the fact and move that the jury be sent back to answer them.</p>

Henry H. Shepard, Judge, presiding. The' bill in this ease sets forth that about October 8, 1883, there was organized a corporation known as the Pullman Iron & Steel Company, with a capital stock of §500,000, consisting of 5,000 shares of §100 each; that in payment for said stock, there was conveyed to the company a certain patent for making railway spikes; that afterward the owners of the stock, to whom the same had been issued, donated one-half of the same to the company,…

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

Clifford. Judge, presiding,, Appellee, an old and infirm man, standing in the street, signaled one of appellant’s cars to stop and let him on. The car passed him a short distance and stopped to let a woman get off.

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

<p>Trespass Quare Clausum—Damages.</p> <p>Where plaintiff, in an action of trespass guare clausum, has never regained possession of the land in controversy, he can recover damages only for the entry or entries. Harding v. Sandy, 43 Ill. App. 442, followed.</p>

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

<p>Husband and Wife—Conveyance to Wife—Consideration Furnished by Husband—Bill to Stibject Property to Husband's Debts—Necessary Evidence—Judgment—Effect of.</p> <p>1. Upon the mere fact that the consideration of a conveyance lo a wife is furnished by her husband, no presumption of a resulting trust arises.</p> <p>2. Upon a bill to subject prop"rty so conveyed to the debts of the husband the creditors must show, either that they were creditors at the time of the conveyance, or that the conveyance was so made for the purpose of defrauding subsequent creditors.</p> <p>3. Upon a bill by a judgment creditor to set aside an alleged fraudulent conveyance antedating the judgment, the judgment is not evidence that the debt existed when the suit was commenced.</p> <p>4. A judgment is, for or against strangers to it,'evidence only of its own existence, and affects them only by the consequences that legally flow from that existence.</p>

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

<p>Attachment—Non-residence—What Necessary to Prove—Commission on Loan—Contract Price—Amount of Recovery.</p> <p>1. In an action commenced by attachment the burden is on the plaintiff to prove that the defendant, is a non-resident, and where the evidence is hazy and uncertain, this court will not reverse the decision of the lower court dissolving the attachment.</p> <p>2. In the case presented, defendant had agreed to pay plaintiff a certain fixed sum for securing him a loan, and plaintiff complied with his part of the contract; this court holds that the court below erred in reducing the amount of plaintiff’s compensation below that fixed by contract.</p>

<p>Sales—Lex Loci—New York Statute of Frauds—Alteration of Proposition, Whether Material.</p> <p>1. Where a person residing in one State orders goods of a person residing in another State, who is there to deliver the goods to a carrier for the purchaser, the contract is made in the State of the vendor and its validity is to be determined by the law of that State.</p> <p>2. Where an order as prepared by a vendor to be signed by vendee provided that vendee should, if required, give his paper at sixty days and the vendee, before signing, so changed the order that it provided that he should give his paper, if required, “at sixty or ninety days," the effect of the change was to give the vendee the option as to the time for which he should give his paper and was a material alteration in the proposed contract.</p>