Volume 44 — Illinois Appellate Court Reports

<p>Master and Servant—Responsibility of Master for Acts of Servant— Street Railivays.</p> <p>To render a master responsible for the act of his servant, the act must have been committed bona fide by his servant as such and hi the line of his employment.</p>

Theodobe Bbebtako, Judge, presiding. Appellant, being a wholesale dealer in milk, employed appellee for $10 per week, and, appellee says, “ told him that he could have rent down stairs, live in his home, and that the appellant would take one dollar off each week for the rent.” Accordingly appellee and his wife moved into the rooms.

Riohabd S. Tttthill, Judge, presiding. Declaration in the words following: “ Belinda Hughson, plaintiff, by R. B. Bacon, her attorney, complains of Joseph Wineman and Leopold Wineman, doing business as J. & L. Wineman, of a plea of breach of covenant. “ For that, whereas, on the 81st day of Hay, A. D. 1888, by a certain indenture or lease then and there made between one Reuel W. Bridge, of the one part, and the defendants, of the other part (the counterpart of which said…

<p>Personal Injuries—Explosion of Boilm—Prima Facie Evidence of Negligence—Duty of Owner—Hostility of Witness, How Shown—Means of Support of Deceased Widow—Evidence—Master and Servant.</p> <p>1. The admission in the case presented, of evidence going to show that the plaintiff had no means of support except from the earnings of her husband, to recover damages for whose death-the action was brought, was improper.</p> <p>2. It is always competent to show the hostility of a witness to the party against whom he testifies, and where, on cross-examination, he has denied certain acts or words tending to show such hostility, it is competent to contradict him by other witnesses.</p> <p>3. The fact of the explosion of a steam boiler, causing injury to a person lawfully present, who sustains no relation of employment or duty to the person operating or controlling the boiler, is prima facie evidence of negligence in those having the management of it.</p> <p>4. The owner of a boiler, operating it for his own private business, is not in the position of one maintaining a nuisance, and is not an insurer of the safety of the boiler, but is only bound to exercise reasonable care in keeping it in repair and in the selection of persons to operate it.</p>

<p>Garnishment—Exemption—Evidence of Right to—Judgment, Sow Proved.</p> <p>1. It is not necessary for a garnishee to appear in the Superior Court and personally insist upon an exemption to which it clearly appears that his creditor is entitled.</p> <p>2. The oral testimony by plaintiff that he has a judgment against the garnishee’s creditor is not competent evidence of such judgment.</p>

<p>Instructions—Erroneous Assumption of Fact in.</p> <p>Where, in an instruction given to a jury, a material fact is assumed which is denied by the defendant and which is put in issue by the pleadings, such assumption constitutes reversible error.</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. Loren C. Collins, 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 Coot County; the Hon. Elliott Anthony, Judge, presiding.</p>

<p>Street Railways—Evidence.</p> <p>In an action brought to recover the value of a horse, lost through having his foot caught in the crossing of defendant’s street railway track and a railroad track, held, that evidence of other accidents at the same place, while the crossing was in the same condition, was incompetent.</p>

<p>Landlord and Tenant—Forfeiture for Subletting—Waiver of—Judgment in Forcible Detainer—No Suspension of Other Rights—Right of Entry—Forcible Entry, Whether Unlawful.</p> <p>1. The service by the landlord upon his tenant of a five-day notice, under the statute, he having knowledge at the time of a subletting which, under the lease, was ground for forfeiture, amounts to a waiver of the forfeiture incurred by such subletting.</p> <p>2. A judgment in a forcible detainer suit in favor of a landlord does not suspend the landlord’s freedom of action to enforce his rights existing independently of such judgment.</p> <p>3. The acceptance by a landlord, after his right of possession was fixed, of property from the tenant in payment of rent that had accrued, is no waiver of his right to enter.</p> <p>4. Upon the case presented, this court holds that sub-tenants, who had been put out of possession by the landlord, who had the right of possession, could not maintain against him an action of trespass.</p> <p>5. Obiter, a clause of re-entry in a lease is binding upon sub-tenants. Communis opinio is evidence of the law.</p>

<p>Appeal from the Circuit Court of Cook Count}”; the lion. S. P. MoCostxell, 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. Bichaed S. Tuthill, Judge, presiding.</p>

<p>Pleading—Bill of Exceptions.</p> <p>A bill of exceptions is regarded as a pleading by the party at whose instance it is made, and is not to be construed favorably to him.</p>

<p>Street Railroads—Negligence of—Personal Injuries.</p> <p>Judgment reversed because the verdict was contrary to the weight of evidence.</p>

Samuel P„ McConnell, Judge, presiding. Appellees, as the heirs of Martha P. McKay, brought an action of forcible detainer against appellant. Ujion the trial it appeared that Martha P. McKay, in her lifetime, for some eight years, leased the premises to one Bridget Tobin, the last lease to her being from January 1, 1883, to January 1, 1888. Bridget Tobin occupied the premises and paid rent therefor until June 12, 1886.

<p>Practice—Filing Replication Instanter—Interlineations on Face of Bond—Burden of Proof—Bill of Exceptions.</p> <p>1. A court, upon the coming up of a case for trial, has the discretion to allow the formal issue to be made instanter by the filing of a replication; and if any ground arises therefrom for a continuance, the defendant should file an affidavit and make it the basis of a motion to the court, otherwise the question can not be presented here.</p> <p>2. In this State the presumption is that an alteration appearing upon the face of a deed was made after the deed was executed, and the burden of proof is on the party presenting it to show that it was not, or to otherwise explain it.</p> <p>3. Questions not properly presented by the bill of exceptions can not be considered.</p>

<p>APPEAL from the Superior Court of Cook County; the Hon. TnEoDoir~ BEENTAicO, ~Judge, presiding.</p>

Oliver H. Horton, Judge, presiding. In June, 1870, William J. Slee, being the owner of lot 1, block 9, Assessor’s Second Divison, etc., and 30 by 00 feet of lots 11 and 12, Wilder’s Morth Addition to Chicago, borrowed from the appellant $4,500, securing the loan by a trust deed upon the above described premises.

<p>Negotiable Instruments—Note—Action Against Guarantor of—Evidence of Consideration for Guaranty—Absence of Party and Counsel from Trial—Excuse for—Discretion of Court—Practice.</p> <p>1. An indorsement on anote in the form of a guaranty will pass the title and also bind the guarantor, the same consideration that supported the transfer supporting the guaranty; and the words “ for value received” thereon are a sufficient expression of consideration on the face of the writing itself, and, the writing being in evidence, no other proof of consideration is necessary.</p> <p>2. An engagement in a justice court has never been regarded as a sufficient excuse for the absence of a party or his attorney from a trial in the Circuit Court, and the refusal of the judge to delay a trial on that ground is not an abuse of judicial discretion.</p>

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

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

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

<p>Usury—Construction of Statute—Practice.</p> <p>1. Where defense of usury is established, the plaintiff can only recover the principal, less all payments made up to the time of trial. No interest for a period either before or after maturity of the note sued on can be recovered.</p> <p>2. Appellant can not complain of a judgment entered in accordance with his own request.</p>

Theodore Brentano, Judge, presiding. This was an action brought by Michael Grogan in his lifetime, a member of the appellant lodge, to recover what are known as sick benefits. His membership, payment of dues, etc., sickness, notice to the lodge, examination by a competent physician and certificates of disability forwarded to the lodge were duly proven.

<p>Sales—Real Property—Commissions—When Earned—Trial by Court —Practice.</p> <p>1. Where the owner of real estate places his property in the hands of an agent for sale, and the agent finds a purchaser who is able and willing to complete the purchase of the land on the terms given to the agent, and the owner rejects the proposition, he is nevertheless liable to the agent for his commissions.</p> <p>3. Upon trial by the court, where there are no exceptions to the admission or the exclusion of evidence, and no propositions of law submitted, the only question on appeal is whether the evidence supports the judgment.</p>

<p>Negotiable Instruments—Note—Death of One or Two or More Joint Obligors—Remedy of Obligee—Actions and Defenses.</p> <p>In case of suits against joint contractors, one of whom is dead, the suit should be against the survivors only, the administrator of the deceased contractor not being a proper party.</p>

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

<p>Forcible Entry and Detainer—Jurisdiction of Justices in Actions of— Amount of Rent Immaterial.</p> <p>A justice has jurisdiction of an action of forcible entry and detainer by a landlord against his tenant without regard to the amount of rent reserved in the lease. The right to possession is alone in question.</p>

<p>Nuisance—Occupation of Street in Front of Railway Depot—At Whose Instance Abated.</p> <p>1. Such occupation or obstruction of a public street, even though it amount to such nuisance as will entitle an owner of abutting property to invoke the.aid of a court of equity to abate, must be shown to be such a nuisance as works an injury to him, not merely greater in degree than that sustained by others of the general public, but it must be special and ¡peculiar in its effects upon Mm in relation to the use and enjoyment of his property.</p> <p>2. A bill to restrain hackmen, expressmen, etc., from, obstine.ting the street in front of complainant’s railway depot, was properly dismissed in fche ease presented, it not appearing that complainant sustained such injury therefrom as brought the case within the rule above stated.</p>

John P. Altgeld, Judge, presiding. On a morning of December, 1888, the plaintiff got on board one of appellant’s passenger trains at Meagher street, in Chicago, intending to ride to the Union Depot. The train was quite full.

<p>Husband and Wife—Transactions Between—Ownership of Property Attached—Bills of Exceptions,</p> <p>1. In the case presented, property, being attached as that of a husband, was replevied by his wife; this court holds that the evidence justified the verdict of the jury finding that the property belonged to the husband.</p> <p>2. Inferences in respect to a bill of exceptions are not to be drawn favorable to the party at whose instance it is made.</p>

<p>Homestead Loan Association—Insolvency of—Right of Shareholder to Proceeds of Security Deposited to Secure His Advance Payments.</p> <p>In the case presented, a shareholder in a homestead loan association had paid in advance $1,000 on his shares, which amount was secured by the deposit by the association with a trust company of certain securities; the court holds, said association having failed, that the shareholder was entitled, as against the receiver thereof, to the proceeds of the securities thus deposited for his protection.</p>

<p>Carriers—Action for Loss of Goods by—Negligence—When Statute of Limitations Begins to Bun—Evidence.</p> <p>1. In oases of torts arising out of contracts, the statute of limitations begins to run at the date of the tort or breach of duty, and not when the damage ensues.</p> <p>2. In an action by one common carrier against another to recover damages for the negligent loss of goods intrusted by the one to the other, a judgment having been recovered by the consignee against the plaintiff, this court holds that such judgment was not admissible in evidence and that the gist of the action was for the breach of duty and loss of the goods.</p>

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

<p>Carriers—Action for Delay in Carrying a Corpse—Trial by Court— Propositions of Law—Not Material to Issue.</p> <p>In an action against a common carrier to recover damages for delay in carrying the corpse of plaintiff’s son, where the trial was by the court, this court holds, that the only questions presented by the record were not material to the issue, and that the judgment for the plaintiff must be affirmed.</p>

Samuel P. McConnell, Judge, presiding. On December 11, 1890, appellants began an attachment suit in the Circuit Court against A. T. and F. W. Dennison, and summoned appellees as garnishees.

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

<p>Practice—Rule as to Filing Briefs—Chancery Practice—Answer of Defendant—Allegation Not Denied, Effect of.</p> <p>1. In the case presented, appellant failed to file his brief until after the date required by the rule, but upon the day he did so, appellee obtained an enlargement of the time in which to file his own brief; this court holds that appellee thereby waived his right to claim that the decree of the court below be affirmed under the rule.</p> <p>2. In chancery practice the rule is that every material allegation of the bill, not admitted, is, if the defendant answer at all, denied.</p> <p>3. The evidence by which a decree is supported, or the facts on which it is founded, must in some way be preserved in the record, where relief is given, or there is error.</p>

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

<p>Appeals from the Circuit Court of Cook County; the lion. Samuel P. McConnell, Judge, presiding.</p>

<p>Practice—Bill for Review—Judgment on Demurrer—Interlocutory Decree.</p> <p>A decree that a former decree be reviewed is but interlocutory, and no appeal will lie therefrom.</p>

Appeals from the Superior Oourt of Cook County; the Hon. Henby M. Shepard, Judge, presiding. • These cases are separate appeals taken from an order of the Superior Oourt appointing a receiver in the case of Howe et al. v. Kean et al., in that court. The order for a receiver was made upon the original bill filed by Howe et al., a bill of interpleader by J ohn A. Brown, separate verified answers by Warren and Jacobs, a demurrer by Kean and an affidavit by Jacobs.

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

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

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

<p>Capias ad Satisfaciendum—Character of Sxiit—How Determined.</p> <p>Upon a writ of capias ad satisfaciendum, in order to determine the character of the suit, the allegations of the declaration will be examined and are to be regarded' rather than the name given to the suit.</p>

<p>Kansas Corporations—Liability of Owners of Paid-up StoeTc—Not Enforceable Outside of Kansas.</p> <p>1. The provision of the constitution of Kansas that “ dues from corporations shall be secured by individual liability of stockholders to an additional amount equal to the stock owned by each stockholder,” etc., is not self-executing, but is a mandate to the legislature.</p> <p>3. Under this constitutional provision and the laws of the State of Kansas, it is held: That creditors of a Kansas corporation had no remedy against holders of paid-up stock in such corporation which could be enforced outside of that State.</p>

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

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

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

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

<p>Gaming—Options—Action by Broker to Recover Losses Sustained on Board of Trade—Evidence—Instructions.</p> <p>1. In an action brought by a broker to recover for losses sustained in the purchase of rye for future delivery, where the main question was as to whether the broker was authorized by defendants’ firm to make the purchase, held, first, that the jury were justified in finding that the broker was authorized to make the purchase in question on defendants’ account, and second, that the jury were correctly instructed.</p> <p>2. Language used by the Supreme Court in an argument in one case is not necessarily proper language for an instruction to the jury in another case.</p> <p>3. . The court below correctly refused to instruct the jury that if the methods adopted by the plaintiff were too intricate and tortuous to be explained to the full comprehension of the jury, the verdict should be against him.</p>

<p>1892.] APPEAL from the Superior Court of Cook County; the Hon. THEODOnE BRENTANO, Judge,</p>

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

<p>Pleading—Gambling Transaction—Sufficiency of Allegations.</p> <p>An averment of a conclusion is not good pleading, but the facts from which that conclusion follows should be clearly stated.</p>

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

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

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

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

<p>Assumpsit for Work and Labor—Instructions—Family Belation.</p> <p>1. In an action for work and labor, where the plaintiff had lived in defendant’s family for a period of years, the controversy being as to whether she worked under a contract or lived with defendant as a member of his family, under such circumstances that the law will not imply a promise to pay for the work done, held, it was error to so instruct the jury as to make the result depend upon whether plaintiff rendered services at the request of defendant.</p> <p>2. Where the evidence is conflicting each party has the right to have the jury accurately instructed as to the law of the case, and that those of the opposite party shall be free from error.</p>

<p>Real Property—Damage to—Location and Operation of Railroad— Theory of Suit Adopted by Parties—Effect of on Appeal—Immaterial Error—Evidence—Instructions.</p> <p>In an action brought by an adjacent property owner to recover damages suffered through the location and operation of defendant’s railroad, where the suit was tried upon the theory, adopted by both parties, that «he appellee was entitled to recover in. this suit the diminution, if any, in the value of his jiremises by the location and operation of defendant’s road, held, that on appeal the appellant could not object that that was not the correct theory of the case.</p>

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

<p>Verdict—Of Several Juries—Effect of—Collision on Highway—Responsibility of Owner of Team Driven by Another.</p> <p>Two juries having successively found verdicts for the plaintiff in the case at bar, this court refuses to reverse the judgment, although the verdict appears to be contrary to the evidence.</p>

<p>In error to the Circuit Court of Cook County; the lion. Francis Adams, Judge, presiding.</p>

<p>Practice—Motions—When Notice not Required—Nonsuit, TVhen May he Taken.</p> <p>A special demurrer to a declaration having been sustained in the case presented, it was proper for the court, on a subsequent day of the term, on motion of the plaintiff, without notice to the defendant, to set aside the order sustaining the demurrer and allow the plaintiff to take a nonsuit.</p>

<p>Practice—Courts of Chancery—Verification of Bill—Injunction to Restrain Collection of Judgment—Bond Required—Dismissal of Bill as to Part of Parties—Appeal.</p> <p>No appeal lies from an order dismissing a bill as to only a portion of the parties thereto. -</p>

<p>Practice—Negligence of Attorney.</p> <p>Wilful or careless neglect by a defendant, of his cause, will generally prevent him from relief from the consequences, even if he have merits, whether the case be in chancery or at law; and the negligence of his attorney is the negligence of the party.</p>

Ik error to the Circuit Court of Cook County; the lion. Kiohard S. Tdthill, Judge, presiding. The plaintiff in error, with one Simon Stafford, signed a bond given upon an appeal in an action of forcible detainer.

<p>Appeal from the Superior Court of Cook County; the Hon. Geobge IT. Kettelle, Judge, presiding.</p>

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

<p>Fraudulent Sales—Bill to Subject Property to Lien of Execution-Conveyance to Wife.</p> <p>1. A voluntary conveyance by way of settlement upon a wife or child is not necessarily fraudulent and void as to creditors. If the debtor retains a sufficient amount of property so that his creditors are not hindered, delayed or defrauded by reason of the conveyance, then it will stand.</p> <p>2. Upon a bill filed to subject to the lien of an execution property conveyed by the judgment debtor to his wife, this court holds that upon the evidence presented it will not reverse the decree dismissing the bill.</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. Jonas Hutchinson, Judge, presiding.</p>

<p>Garnishment—Funds Held on Executory Contract—Board of Trade.</p> <p>1. Funds belonging to a judgment debtor held by another on an executory contract are not subject to garnishment.</p> <p>2. A commission firm which holds funds from a customer to protect itself as to trades made on the customer’s account, has no right to close those trades without orders from the customer (unless to protect itself from loss), because it has been served with garnishee process by a judgment creditor of the customer, although the closing of the trades on the date of the service of process might result in leaving in its hands funds to the credit of the customer.</p>

Richard W. Clifford, Judge, presiding. At half past five o’clock on the morning of the 28th of January, 1890, a team of the Fire Insurance Patrol, on its way to a fire, in going over the crossing of The Western Indiana and The Chicago & Eastern Illinois railroads and 25th street, ran into a passing freight train belonging to appellee.

<p>Agency — Real Property — Sale of—Agenfs Commission—When Earned—Improper Remarle of Counsel to Jury—Withdrawal of— Instructions—Unwarranted Assumption of Fact in—When Agent Binds Himself.</p> <p>1. In an action by a real estate agent for commissions claimed to have been earned by him through the sale of real estate alleged to have been placed in his hands for sale by defendant, where counsel in his address to the jury for defendant presented to their consideration the alleged fact that defendant had paid commissions to another agent, after evidence on that point had been refused, held, that this was an error that could not be cured by the attempted withdrawal of the remark by counsel or the statement by the court that the jury should consider only the evidence in the case.</p> <p>8. If an agent does not disclose his agency and name his principal he binds himself and becomes subject to all liabilities, express and implied, created by the contract and transaction, in 'the same manner as if he were the principal in interest.</p>

Samuel P, McConnell, Judge, presiding. John Gosch, appellant, on the 6th day of June, 1891, received at Crown Point, Indiana, from one Anton Sourman, an insurance agent, a policy of insurance made by appellee, the State Mutual Fire Insurance Association.

<p>Practice—Improper Remarle of Trial Judge—When Rot Cured by Instruction—Erroneous Assumption in Instructions—Error Vitiates Verdict When Evidence Conflicting</p> <p>1. A remark of the trial judge during a trial which practically told the jury to ignore a material part of defendant’s case is not cured by a subsequent correctostatement of the law on the same point.</p> <p>2. It is error for the court in any instruction to assume as true any fact which is in dispute, and where the fact assumed is of the very gist of the controversy, the error is of a character to warrant the Appellate Court in reversing the judgment.</p> <p>3. The rule that erroneous instructions will not vitiate a verdict where it appears from the whole record that substantial justice has been done, does not apply in cases where the evidence is strongly conflicting and the merits of the case doubtful.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Hi on Aim S. Tutuill, Judge, presiding.</p>

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

<p>Administration—Priority of Claims under Statute—Trust Funds.</p> <p>In the case presented, this court holds that funds received by appellants’ intestate from the sale of drafts for appellee, were received in trust and were within the sixth class of claims under the statute regulating the distribution of decedent’s assets.</p>

<p>Labor Unions—Membership in—Expulsion from—Fairness of Proceedings—Mandamus.</p> <p>1. Upon a petition for a mandamus to compel a labor union to restore to membership a member thereof, who, it was alleged, had been wrongfully expelled, this court holds, no by-laws or regulations of the association regulating such proceedings appearing in the record, that the only question that can be considered here is, was the procedure a reasonable, honest and fair one, and it appearing that the proceedings of appellee toward appellant were reasonable and fan, the courts will not interfere.</p> <p>2. To secure membership in a trades union by feigning a qualification which does not exist, and to persist in retaining membership after disqualification has been established, are offenses warranting expulsion.</p>

<p>Appeals 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. Henry M. Shepard, Judge, presiding.</p>

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

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

<p>Assignments—Banks—Act for Protection of Depositors, Approved June 4, 1879—See. 4.</p> <p>A private banker, who received savings deposits, and who had indorsed and had discounted at other banks, in the ordinary course of business, commercial paper, having made an assignment, and the holders of such paper having presented their claims for allowance in the County Court, on appeal from the orders of the County Court allowing such claims, this court holds that the presumption of law is that the insolvent held the paper for value; that the discount of the paper in question was not forbidden by Sec. 4 of an act for the protection of bank depositors forbidding banks to guarantee notes, etc., “ for or on account of” other persons, and that the fact that the claimants had received dividends from the estates of the makers of the paper, also in insolvency, does not prevent their proving up and taking dividends upon the full amounts of their claims here.</p>

<p>Negotiable Instruments—Notes—Signature to by Officers of Corporation—Personal Liability.</p> <p>1. The relinquishment of a claim against a third party is a sufficient consideration for a new promise by another.</p> <p>2. In an action brought against the president and treasurer of a corporation individually, to recover upon a promissory note signed by them, with their official designations added, which note was given for a debt of the corporation, tliis court holds that it was for the jury, in arriving at their verdict, to determine whether it was the intention of the parties that the note should be treated as the obligation of the corporation, or of the signers individually, and the jury, having been correctly instructed, this court will not disturb then- finding for the plaintiff.</p>

<p>Forcible Detainer—Practice.</p> <p>1. Where the bill of exceptions in a given case does not show that any exception was taken to the finding of the court, or that any motion for a new trial was made, this court can not consider the sufficiency of the evidence to sustain the findings.</p> <p>2. It is proper where certain defendants state in writing that an appearance and plea for them was unauthorized, to strike the same from the files, and default them; another defendant can not complain of the judgment upon such default.</p> <p>3. A jury having been waived in a given case and a trial by the court had, no propositions of law having been submitted for the court to hold, this court can not know that the court in its conclusion erred as to the law.</p>

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

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

<p>Mortgages—Foreclosure—Husband and Wife.</p> <p>1. When there is any uncertainty as to the meaning of an instrument, a court will hear evidence of the circumstances surrounding and attending its execution.</p> <p>2. Upon a bill filed against a husband and wife to foreclose a mortgage given by them upon property of the wife to secure advances and sales to be made to them, the evidence showing that such advances and sales were made to the husband alone, this court declines, in view of such facts, there being no evidence that the wife ever had any interest in the business of the husband, to interfere with the decree for the defendants.</p>

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

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

<p>Negotiable Instruments—Note—Practice.</p> <p>1. While a defendant may plead as many matters of fact in several pleas as he may deem necessary for his defense, as a matter of right, he must put in all his pleas at one time.</p> <p>2. The discretion of a court to permit or refuse additional pleas, where justice requires them, is not an arbitrary one.</p> <p>3. Pleas properly struck out in case presented.</p> <p>4. Although proof of fraud or illegality hi the making or original circulation of a note, will cast upon the holder the burden of proving that he is such for value, this is a rule of evidence only, and not of pleading.</p> <p>5. Such holder will be presumed to be a bona fide holder without notice in the absence of proof to the contrary, and under the statute of this State, his right can only be challenged by specia. plea. Notice after receipt of the note cuts no figure.</p>

<p>Contracts—Party Walls—Estoppel in Pais—Damages—Evidence—■ - Set-off—Verdict.</p> <p>1. Parties in entering into contracts do not generally undertake to answer for damages arising from loss of special bargains which may thereafter be offered. To render them liable for such loss the contract must be made in view thereof or with reference thereto.</p> <p>2. A party contracting to construct a party wall or to do work of any kind, assumes to be possessed of the skill necessary to enable Mm to perform his contract, and he must be presumed to know and understand the-terms of his agreement; if he fails to fulfill his undertaking, if in violation of his promise he does his work in a negligent and improper manner, it is not a sufficient excuse and will not relieve him from responsibility, that the owner, knowing of the improper work when it was going on, failed to remonstrate and object;</p> <p>3. The doctrine of estoppel in pais is based upon a p arty bemg misled by conduct upon wMch he had a right to rely, but a party having contracted to do good work, has no right to rely upon the owner’s failure to object to poor.</p> <p>4. He who undertakes to do a thhig, not in and of itself impossible, is bound to do whatever it is withm the scope of private action, without violating the law, to accomplish; and this notwithstanding it was and is beyond Ms power; the presumption M such cases is that he knew when he made Ms contract, the difficulty he would encounter in making, performance. r~</p> <p>5. In the case presented, tMs court holds that in view of the wording of the contract mvolved, that the defendant can not complain of any delay caused by the faihu-e of appellees to get possession on account of the occupancy of the building by defendant’s tenant.</p> <p>6. For loss of rents occurring through the negligence of contractors, damages for the loss of a fair rental value may be recovered, but not for •loss of what might be offered by responsible parties.</p> <p>7. Some damage would necessarily be done to other portions of a building in rebuilding a party-wall. In an action brought to recover upon a contract to rebuild such wall, the defendant is entitled by way of set-off and recoupment, to show with reasonable certamty, to the satisfaction of the jury, the loss arismg from damage, for the domg of wMch he is entitled to recover.</p> <p>8. Absolute certamty of proof is not required in jury or other trials. The reasonable certamty required, applies not only to the amount of damages, but to the severance or establishment of items and amounts for which damage is allowable, from those for which damages are not permissible.</p> <p>9. If the jury in a given case, having heard all the evidence, find under tfle instructions of the court that a party is entitled to recover, and have with reasonable certainty established the amount of his damage, they may give him a verdict therefor.</p>

<p>Master and Servant—Recovery of Wages—Practice.</p> <p>1. There is in all contracts of employment requiring skill, an implied undertaking that the party employed to do such work lias, and will use, the skill and knowledge requisite for the employment.</p> <p>2. If a thing is ordered of a manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for the use intended.</p> <p>3. In the case presented, this court holds that the defendant was not required to file an affidavit of merits until the cause was reached for trial</p> <p>4. In an action brought to recover for labor rendered in writing a play, it is proper to admit evidence going to show that the work was not properly done.</p>

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

Loren C. Collins, Judge, presiding. Appellant filed his bill in the court below setting forth the making of a written agreement between him and one of the appellees, which agreement provided in substance that D. K. Tenney on behalf of appellees should endeavor to get control of all the claims against L. L. Smith, late of Omaha, with power to compromise and settle them at certain rates mentioned in said agreement, and that appellant undertook to furnish the affidavits of L.…

<p>Insolvency—Salary of Employe—Petition for Preference.</p> <p>1. A bookkeeper is neither a laborer nor a servant in view of “ An act to Protect Employes and Laborers in their Claims for Wages ” (3 Starr & C. Ill. Stats. 838), and the act concerning voluntary assignments, relating to preferred claims for wages (1 Starr & C. Ill. Stats. 1305).</p> <p>3. Upon the petition of an ex-bookkeeper of an insolvent firm for the allowance of the balance due him upon the account of Ms salary as a preferred claim in his favor as a servant, this court holds that the claim for the full amount should be allowed to participate pro rata in the distribution of said insolvent estate, and that no part thereof should be paid him as a preferred claim.</p>

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

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

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

<p>Principal and Surety—Attachment in Aid—Death of Principal— Judgment Against Administrator.</p> <p>1. There is a distinction between a common law bond and one prescribed by statute; as to the first, the liability of the obligors is limited by the language of the condition; as to the second, the condition will be construed so as to have the effect intended by the statute, because the statute enters into and is a part of the instrument.</p> <p>3. No change can be made in a given action by which the liability of the surety is increased or changed, but if the liability remains the same, it is not important that some changes may have been made in the action in which he became bound.</p> <p>3. There is nothing in a contention that a judgment should have been against a person named, as administrator, the name therein being followed by “administrator, etc.,” there being no dispute that the person against whom judgment was rendered was administrator.</p> <p>4. The statute setting forth the rate of interest to be computed upon judgments, does not affect those rendered before its passage.</p> <p>5. A recognizance was given in an attachment proceeding, conditioned for the payment of whatever judgment might therein be rendered against the defendant; he died before judgment: Held, that the recognizor is bound by a judgment in that proceeding rendered against the administrator of the defendant.</p> <p>6. Upon the giving of the recognizance in such case, the proceeding ceases to be one in rem and becomes one in personam, the recognizance standing as a security for any personal judgment.</p>

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

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

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

<p>Master and Servant—Contract of Service—Breach by Master.</p> <p>1. The burden of proof is upon the employer to show that he was justified in discharging his employe during the term of the employment.</p> <p>2. Where a contract requires an employe to devote all the time necess ary to the prosecution of tiie business and to use bis best efforts in promoting the interests of the employer, a justifiable discharge will be made out where it is shown that the employe failed in either one of such requirements, and it is erroneous to instruct the jury that the burden is upon the employer to establish, by a preponderance of the evidence, that the employe did not devote the necessary time to the business, and that he did not exert his best efforts to promote the interests of the employer.</p>

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

<p>Custom.</p> <p>1. Proof of a custom is inadmissible to vary the terms of an express contract.</p> <p>2. Proof of a custom among one class of persons will not fie binding upon another class of persons, unless it is shown that the latter knew of the custom and contracted with reference to it.</p>

Elliott Anthony, Judge, presiding. Appellant was injured while working for appellees. Appellant seems to have been a general utility man in appellees’ shop; he did, he says, everything about the shop. He had worked at the smelting business for five or six years. Appellees’ business was that of extracting copper from refuse ore, out of which the silver and lead had previously been taken.

<p>Appeal from the Circuit Court of Cook County; the Hon. Loren 0. Collins, Judge, presiding.</p>

<p>Negotiable Instruments—Note—Practice—Evidence.</p> <p>1. Whore a warrant of attorney authorizes a confession of judgment upon a note “ at any time,” it may be done at any time after the delivery of the note.</p> <p>3. It is the duty of courts to so interpret the meaning of words employed in contracts as to effectuate the intention of the parties, when such intention is not clear without the aid of interpretation.</p> <p>3. Where the certificate'of the trial judge in a given case omite to state that the bill of exceptions contains all -the evidence, it will be presumed that there was other evidence introduced sufficient to sustain the finding.</p> <p>4. In the case presented, this court holds, in view of the evidence, that the intention of the parties to the note in question, was to empower the entering of judgment upon it at any time after it was given, in accordance with the usual course and custom of business where judgment notes are resorted to.</p>

<p>Practice — Bills of Exception—Negotiable Insimments — Drafts— Damages.</p> <p>1. The finding of a trial court, based upon evidence introduced, will no more be disturbed upon appeal than will the verdict of a jury.</p> <p>3. Sec. 3, Chap. 98, E. S., does not apply to a draft drawn by a person out of this State, against a person herein, nor against the drawee of such draft.</p> <p>3. This court will assume that the finding of a trial court was justified by the evidence, where the bill of exceptions fails to contain all the evidence introduced. Such finding can not be overturned upon conjecture.</p> <p>4. The statement in a bill of exceptions that the depositions of three persons were read in evidence, followed by the further statement that they are thereto attached and marked as exhibits “ A,” “ B ” and “ C,” does not incorporate into the bill of exceptions certain papers embodied in other parts of the record by the clerk, although they bear the indicating marks of exhibits “ A,” “ B ” and “ C.”</p> <p>5. It is the certificate of the judge alone that affords authenticity to facts occurring on the trial and neither that which precedes the title page to the bill of exceptions or follows the signature of the judge, is a sufficient identification of a paper marked as an exhibit, with the one that is referred to in the bill of exceptions, although it may bear the same indicatory figure or letter.</p>

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

<p>Creditors’ Bills—Receivers—Practice.</p> <p>1. The place to seek redress for the acts of a receiver, who is claimed to be a trespasser for acting under the directions of a given court, is not before the same tribunal.</p> <p>2. This court will not look through the details of an account to see if it contains incorrect items; the party desiring to take advantage of them, must point them out.</p> <p>8. This court should not be asked to pass upon general objections to the final report of a receiver; the items objected to should be specified,</p> <p>4. When a judgment creditor’s bill is filed, generally it is the duty of the court to require the judgment debtor to deliver to a receiver all property in his possession, not exempt by statute. If third persons claim, they may present them claims to the court, or apply for leave to sue the receiver.</p> <p>5. . If the property remains in the hands of the receiver, his expenses in. taking care of it are a charge upon it regardless of ownership.</p> <p>6. Where a receiver paid out money for expenses not directed by a previous order of the court, the subsequent sanction by the court will not prevent a review of the charges.</p>

<p>Municipal Corporations—City of Chicago—Smoke Ordinance of— Prosecution Under—Practice—Instructions.</p> <p>1. Argument to this court that a municipal ordinance is invalid after the same lias been held to be valid by the Supreme Court of the State, is misplaced.</p> <p>3. An instruction requiring a plaintiff to prove what may be presumed without proof, should not be given.</p> <p>3. A jury must be presumed to know that smoke from chimneys is, in large cities, both injru-ious and annoying.</p>

Kirk Hawes, Judge, presiding. ¡November 17, 1889, Flora A. Brown, the appellee, filed her bill to foreclose a mortgage on an undivided one-third of certain property on Wells street, in Chicago. The mortgage was given to secure the notes of William A. Paulsen, dated June 25, 1886, amounting to $13,500, and the mortgage sought to be foreclosed was executed in . August, 1886, by Alice L. Irwin and husband, Mrs. Irwin being a sister of Paulsen and a niece of the appellee.

<p>Master and Servant—Personal Injuries—Negligence of Vice Principal —Fellow-Servants—Evidence—Instructions.</p> <p>1. While the definition of fellow-servants may be a question of law, it is always a question, to be determined from the evidence, whether the particular case falls within the definition.</p> <p>2. Instructions stating that certain .circumstances bring parties within such relation, are bad.</p> <p>8. In personal injury cases, all the circumstances attending an acci-, dent must be taken into account in determining whether any negligence by the plaintiff contributed to the injury barring his action, and it is for the jury to take those circumstances into account.</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. Hobtox, Judge, presiding.</p>

G. H. Kettelle, Judge, presiding. This was an action by appellant based upon a policy of insurance against loss or damage by fire “ on stock of jewelry contained,” etc. The policy contained the following provisions : “ III. This company shall not be liable under this policy for loss or damage by fire in any of the following instances, viz.: 1. If caused directly or indirectly by means or in consequence of an invasion, insurrection, etc. * * * 2.

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

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

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

' Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Held: upon propositions of law submitted, that although Hears might have in good faith sold the property to Larned and made a contract with him, believing him to be the real purchaser, and might have been bound under his contract to convey to said Larned or his assigns, yet if he, Hears, before the consummation of the contract was notified…

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

<p>Master and Servant—Contract of Service—Breach by Employer-Practice—Bills of Exceptions.</p> <p>1. A court of appellate jurisdiction can not look outside of the bill of exceptions to learn what took place on the trial.</p> <p>2. Such court can not look elsewhere to find something, which, if found, would lack the essential evidence of authenticity by which it must be guided—the certificate of the judge before whom the case was tried. The certificate of the clerk will not do.</p> <p>3. Because the bill of exceptions in the case" presented fails to embody all the evidence which it affirmatively shows was offered and read on the trial, this court assumes that the judgment for plaintiff was correct.</p>

<p>Landlord and Tenant—Distress for Rent—Injunctions—Recoupment. Set-off.</p> <p>1. For maliciously and without probable cause suing out an injunction that is afterward dissolved, but was mjurious while it was in force, a common law action will lie.</p> <p>2. In the absence of evidence tending to show malice and want of probable cause, the only remedy is such as the statute or a bond may give.</p> <p>3. In actions upon contracts, and a distress for rent is of that class, the counterc'aim, set-off, or matter of recoupment must be such that the defendant can maintain an independent suit for it.</p> <p>4. A defendant has his election to use it by way of defense or bring a cross-action.</p>

<p>Railroads—Negligence of—Personal Injuries—Crossings—Evidence— Instructions.</p> <p>It is not proper in personal injury cases to instruct the jury as to what particular acts were or were not consistent with the exercise of due care. That is always for the jury to determine.</p>

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

<p>Master and Servant—Negligence of Master—Unsafe Engine—Death of Servant—Loss to Next of Kin—Assumption of Bislc.</p> <p>1. All employes take upon themselves the ordinary risks incident to a given employment. If an employe knows of a defect or danger, and yet continues to make use of the defective appliance, and to incur the danger, he is regarded as having assumed the risk.</p> <p>2. If the employe continues to work because of a promise by the employer to repair the defect, there is then no such presumption of an assumption of the risk.</p> <p>3: In an action brought to recover the pecuniary loss to the next of kin through the death of au employe, the same being alleged to have taken place through the negligence of the employer, it is proper to admit evidence as to the habits and character of the deceased, so far as ifc affected the pecuniary relations of the next of kin with him and the support, if any, they were receiving, or were likely to receive from, him or were giving to him.</p>

<p>Trespass Quare Clausum.</p> <p>No trespass is committed in' taking possession of one’s own; if an assault is committed in so doing, it may or may not be justifiable.</p>

<p>Jurisdiction.</p> <p>1. A court of chancery has no jurisdiction to direct a court of law what it shall do. It can act only upon the party and then generally only by way of prevention. If a judgment has been entered. which equitably ought not to be enforced, the defendant may, upon terms, have an injunction upon the plaintiff against enforcing it, and by thus coercing the plaintiff induce him to consent to a new trial.</p> <p>3. In certain cases where a judgment has been entered satisfied by a sale of property the title to which fails, the purchaser of the property may obtain a decree in equity against the original defendant for the price be bid. If the plaintiff in the judgment was himself the purchaser, he may, by motion in the same cause, have the satisfaction vacated and take out another execution.</p> <p>3. In view of the evidence, this court declines to interfere witli the decree dismissing the bill in the case presented, the same praying that a certain “ judgment, execution, levy, sale and satisfaction of said judgment,” be set aside, and complainant be allowed to proceed in said suit, and that a pluries summons issue in said suit and for general relief.</p>

<p>JRoal Property—Bill to Remove Cloud—Judgment.</p> <p>1. The greatest effect which the law gives to a commitment on a cm. sa. is a suspension of the other remedies on the judgment during its continuance; whenever it terminates, without the consent of the creditor, the plaintiff is restored to them all as fully as if he had never made use of any. If the defendant escape, or is discharged by operation of law, the judgment retains its lien, and may be enforced on his property.</p> <p>2. Where a judgment has been satisfied, resort may be had to equity to remove the cloud on title to real estate of the debtor, however complete the power of the common law court to enter satisfaction for it, for matters subsequent to its rendition. But the satisfaction of the judgment is a sine qua non to a bill to remove it as a cloud.</p>

<p>Negotiable Instruments—Notes—Practice Act, Sections 34 and 35— Practice—Placing of Case on Short Cause Calendar—Notice.</p> <p>1. It not appearing when a given cause made its first appearance on a short cause calendar, the fact being that it was reached and called for' trial more than a month after the date and service of notice, in the absence of anything to the contrary in the record, the presumption is, that the clerk did not put the cause on the calendar until after the lapse of ten days from the date of service of the notice.</p> <p>2. The fact being that the statute imposes upon the clerk the duty of placing causes on the calendar after the proper length of notice has been given, any violation of the statute by him must be shown, to be availing.</p> <p>3. The fact that a cause was not reached for trial on the first day tiiat it appeared on the calendar, does not invalidate the notice, the statute providing that it shall be a continuous calendar.</p> <p>4. A note being specially counted on, an unverified plea of nonassumpsit does not put its execution in issue.</p> <p>5. The filing of an affidavit of merits with such plea in the case presented, did not dispense with the necessity by defendant of verifying his plea as provided by Section 34 of the Practice Act, if he wanted to deny tire execution of the note.</p> <p>6. The bill of exceptions in such case being barren of any objection ro the reading of the note in question in evidence, either with or without proof of its execution, no objection can be raised herein.</p>

<p>Agency—Bill for Discovery,</p> <p>1. Relief can not be granted for matters not charged.</p> <p>3. Certainty in pleading is as essential in chancery as at common law.</p> <p>3. The law will not tolerate the taking of advantage by one who holds a position of agency and trust to another, and thereby secures to himself the fruits of ijransactions begun and carried on in the scope of his agency, nor will it permit a third person, who in knowledge of the agency, negotiates and contracts with such agent, to deny responsibility and accountability to a disclosed principal.</p> <p>4. Where it appears that an unexecuted contract has been made under such circumstances, without special reliance upon the skill of the agent, a court of equity may require the substitution of the principal in place of the agent for the performance of the undertaken obligation, and give to the principal the compensation contracted to be paid to the agent.</p> <p>5. While, as a general rule, an agent will be held to account to his principal for all matters done by him within the scope of his agency, where the agency has terminated, his duty to account for transactions subsequently engaged in can not be required, and where the fruits of subsequent employment are sought to be taken, it must be made to appear affirmatively and positively that they are the direct result of the agency.</p> <p>6. Every agent has the right to carry with him into a new employment all the skill and knowledge acquired in his previous engagements, and nothing short of an express contract on his part not to do so will debar him, and then only under the strict rules of law especially established to protect trade secrets.</p> <p>7. A bill praying for a discovery should allege that complainant expects to establish the truth of his pleas by the discovery sought.</p>

Loren 0. Collins, Judge, presiding. Appellant filed a bill, alleging himself to be the owner of certain lots in Cook county, which he sets forth were once owned by Paul Cornell, who, it is alleged, in 1876 conveyed the same to Edward P. Adams, who executed to Paul Cornell two notes for $1,300 each, and a mortgage of the lots as security therefor.

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

<p>Wills—Construction of.</p> <p>1. A gift for a “ free public library ” is a gift for a general or public charitable use.</p> <p>2. In the construction of a will, the intention of the testator to be gathered from the entire will, must govern.</p> <p>3. A devise of real estate, which by the provisions of the will is to be converted into money, and that money distributed among the devisees, must be treated as a devise of money and not of land. It makes no difference that there had been no sale; equity treats that as done which ought to be done.</p> <p>4. Void or lapsed legacies of personalty fall into the residuum.</p> <p>o. A residuary clause in a will is assumed by the law to have been inserted to prevent intestacy, and has that effect.</p> <p>6. Upon a bill filed alleging certain provisions in a will to be illegal and void, this court adopts as its own, the decree of the trial court dismissing the same for want of equity.</p>

<p>Trade Marks—Corporations.</p> <p>1. The words ‘ ‘ .¿Etna Iron Works import a corporation.</p> <p>2. There can be no property by a copartnership in a name as a “ trade name,” the same importing a corporation.</p>

Elliott Anthony, Judge, presiding. Judgment having been entered in the court below against appellant, she upon the same day moved that the same be set aside and a new trial granted. This motion the court denied.

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

<p>Verdicts-Bills of Exceptions.</p> <p>1. Verdicts of juries of themselves are not proper subjects of exception. It is only rulings of courts that can be excepted to.</p> <p>2. The settling and sigining of a bifi of exceptions is a judicial act and can not be delegated even when the trial judge dies, having failed to sign such bill, nor by stipulation of parties.</p> <p>3. Permission to file a defective paper subject to the consideration of a court, can give it no validity.</p>

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

<p>Master and Servant—Negligence of Master—Personal Injuries.</p> <p>1. In an action brought to recover, for damages suffered through the death of an employe of defendant company, alleged to have been occasioned through its negligence, this court holds that an employe of and stockholder in said company properly called by plaintiff to testify against his interest could, upon cross-examination, likewise be asked as to what deceased said when he was about to take the step that resulted in his death.</p> <p>2. The objection that to allow a witness to so testify would be wrong, as the witness might testify untruly without a possibility of contradiction, does not go to competency.</p>

<p>Bills of Exception.</p> <p>1. A bill of exceptions is to be regarded as a pleading of the party who presents it, and is to be construed most strongly against him.</p> <p>2. Only by appearing in the bill of exceptions can the motion for a new trial, the affidavits in support thereof, or the propositions of law submitted to and refused by the court be brought before an appellate tribunal. They do not become a part of the record by being copied by the clerk.</p>

<p>Commission Merchants—Loss of Goods by Act of God—Depositions.</p> <p>1. If instructions to an agent are positive, and yet are incapable of being performed because of unforeseen conditions, the rule which requires an agent to obey all reasonable instructions, finds an exception which relieves him from responsibility for disability or deviation.</p> <p>2. Directions being in writing, it is the duty of the coiu-t to determine from an inspection thereof, what directions were given, and to instruct the jury upon the law as applicable to the written directions.</p> <p>3. It is the duty of commission merchants to take care of goods consigned to them, and to obey instructions concerning the sale thereof, but if, for any reason not tortious, a delay in selling does occur, they will not be liable for a loss arising from an act of God.</p> <p>4. An objection to testimony taken by deposition, that it is nob'the best evidence, comes too late if made at the trial.</p>

<p>Municipal Corporations—Damages Resulting from Improvements— Viaduct.</p> <p>1. Where damages are claimed to property not taken for, but injured by, a public work, it is not the effect upon a part or a single piece of property, but on the whole together, that must be considered.</p> <p>2. Where there are buildings attached to the realty there can be no recovery as to them, unless the entire1 property has been depreciated in value by the construction of the public improvement.</p> <p>3. There can be no recovery of damages by the land owner where, by reason of the improvement, his property is benefited.</p> <p>4. There being no claim in the case presented thafthe work in question was not done skillfully and diligently, this court holds there can be no recovery for rents lost while the same was being done.</p>

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

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

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

<p>Injunctions—Ecclesiastical Law.</p> <p>1. A purely legislative body may not, as a general rale, delegate to another body its legislative functions; but it maybe done in certain cases where the delegated power is partly legislative and partly executive.</p> <p>2. A civil court should proceed with great hesitancy to declare that an ecclesiastical body, having plenary power, has so far overstepped the limits of its authority in a purely ecclesiastical matter as to warrant its interference. As a general rule civil courts should not interfere unless there has been a violation of the law of the land, ór a clear subversion of the fundamental law of the church.</p> <p>3. In a controversy as to which of two bodies, that convened in different places, was the true general conference of a given church, each of said bodies laying claim thereto, this court, upon an examination of the discipline thereof, holds that the one held at Indianapolis, Indiana, was entitled to be so considered.</p> <p>4. Upon a bill filed to restrain a clergyman from occupying a given pulpit, and from excluding one of complainants, also a clergyman', therefrom, this court declines, in view of the evidence, to interfere with the decree for the complainants.</p>

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

<p>Negotiable Instruments—Judgment Note.</p> <p>1. Where a judgment has been entered upon a judgment note, and the defendant is permitted to come in and defend, no terms being imposed, it is his right to offer any evidence admissible under 1ns plea of the general issue.</p> <p>2. While neither failure nor want of consideration can be shown under this plea, payment may.</p> <p>3. In the case presented, the plaintiffs had, after the maturity of the note involved, received on account of the defendant more than the amount of the note, and the question whether he was entitled to have this money applied upon the note, depending upon the state of the accounts between the parties, this court holds that he should have been permitted to show and have examined such accounts.</p>

<p>Hr error to the Superior Courtof Cook County; the Hon. Johít P„ Altgeld, Judge, presiding.</p>

<p>Actions—Actions at Law upon Decrees.</p> <p>Actions at law may be maintained upon decrees which order the payment of a specific sum of money, in such a way that the sum thereby becomes a fixed, liquidated and absolute debt.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. George H. Kettelle, Judge, presiding.</p>

<p>Practice—Appeal and Erren'—Failure to File Bond in Time.</p> <p>Failure to file an appeal bond, and have it approved within the time fixed by an order of court allowing the appeal, is fatal thereto.</p>

<p>In bebob to the Circuit Court of McHenry County; the Hon. Chables Kellum, Judge, presiding.</p>

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

<p>Chattel Mortgages—Sale of Goods Covered by Mortgage with Mortgagee’s Consent—Fraud.</p> <p>1. While chattel mortgages are allowable and recognized by our statutes, and should be upheld where fair and bona fide, fraud should not be allowed and sustained under their cover.</p> <p>2. A mortgagee who allows mortgaged property to be sold without requiring the proceeds thereof to be applied upon, the mortgage debt, loses the lien thereof.</p>

<p>Contracts—Recovery of Contract Price—Instructions.</p> <p>1. This court will not consider instructions not abstracted.</p> <p>2. In an action upon due bills issued to plaintiff for work done for certain contractors, the main questions being as to the authority of the bookkeeper of said contractors to issue the same, and the subsequent ratification thereof by them, this court holds as proper the allowance of evidence to go to the jury of other orders issued at the same time and the subsequent payment of them by said contractors, and declines to interfere with the judgment against them.</p>

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

<p>Divorce—Separate Maintenance.</p> <p>1. Where an allowance is made a lien upon the lands of the husband in proceedings for separate maintenance, and the lien covers more land than is necessary to secure its payment, application may be made that the decree be modified in such respect.</p> <p>2. This court declines, in view of the evidence, to interfere with a decree granting an amount named as an allowance in proceedings for separate maintenance.</p>

<p>Appeal from the County Court of Will County; the Hon. Benjamin Olin, Judge, presiding.</p>

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

<p>Trespass—Cattle—Replevin—Unliquidated Damages—Tender.</p> <p>1. A tender may be made under the laws of this State in a case of unliquidated damages; but the tender must be kept good, especially where there is a dispute as to the amount due.</p> <p>2 An objection and exception to the action of a trial court in giving an instruction which erroneously omits in a given case the hypothesis of bringing money into court to keep a tender good, raises therein the point that the tender was not kept good by bringing it into court.</p> <p>3. The release of stock taken up damage feasant, upon the promise of their owner to repair a fence, releases the lien on them for damage done by them.</p>

<p>Mechanics' Liens—Seos. 29, 30, 38, 35, Chap. 82, R. S.</p> <p>A person can not lawfully make payments to a contractor or his order, without a sworn statement, to the injury of a sub-contractor, and against the express prohibition of the statute concerning mechanics’ liens.</p>

<p>Appeal from the Circuit Court of Livingston County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

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

<p>Sales—Horse—Warranty—Breach.</p> <p>In an action brought for the recovery of damages on account of the alleged breach of warranty of soundness of an animal, the measure of damages is the difference between the market value of the same at the u time of the sale as he was, and as he was warranted to be at that time.</p>

<p>Railroads—Obstruction of Highways—See. 77, Chap. 114, R. S.—Instructions.</p> <p>1. To excuse an illegal act, it must have been done by an unavoidable accident.</p> <p>2. An instruction to the effect that the jury in a given case must find the facts alleged by the plaintiff to be proven from the evidence beyond reasonable doubt, and that the defendant must be given the benefit of any reasonable doubt, properly applies to criminal cases, but not a prosecution under Sec. 77, Chap. 114, R. S., to recover a penalty. The rale applicable to such casé as to the quantum dt evidence is, that the jury shall find the defendant guilty on a clear preponderance of the evidence.</p> <p>3. It is likewise the rule in such cases that liability will attach if it is shown that defendant intended to do tire acts which tire law denominates as illegal.</p> <p>4. The fact being that the highway in question was obstructed for thirty-five minutes, this court holds, in view of tire evidence, that the same was caused through the negligence of defendant's servants, and declines to interfere with the judgment for the plaintiffs.</p>

<p>Master and Servant—Negligence of Master—Personal Injuries—Elevator—Contributory Negligence.</p> <p>In an action brought by a servant to recover for personal injuries alleged to have been suffered through the negligence of her employer with regard to that portion of his premises in connection with an elevator, this court holds that there was no act of negligence, as charged in the declaration, proven against the defendant; that the,great preponderance of the evidence shows the plaintiff to have been grossly negligent upon the occasion of the injury, and holds that the judgment for the plaintiff can not stand.</p>

<p>Landlord and Tenant—Appraisement—Practice—Evidence.</p> <p>1. This court will not pass upon a question primarily raised herein, which, had it been raised in the trial court, would have justified the granting of leave to amend, thereby removing the objection.</p> <p>2. When evidence is objected to upon the trial, if a party to the suit would save an exception to the ruling of the court so as to make it available on appeal, he must frame his objections so as to bring to the attention of the trial court the specific ground upon-which he predicates it.</p> <p>3. While, in the absence of an agreement to accept an appraisement by a majority of appraisers as to an amount due, the parties to a given controversy are entitled to the concurrent judgment of all, it is optional with the creditor to accept the appraisal of such majority.</p> <p>4. In the case presented, this court holds that the jury were warranted by the evidence in finding that the appraisement as made was duly ratified.</p>

<p>In error to the County Court of Mercer County; the Hon. J. H. Connell, Judge, presiding.</p>

<p>Mortgages—Foreclosure—Judicial Sale—Proceeds of—Priority of Claimants—Homestead—Sale of, Free from Judgment Men,</p> <p>1. Judgment liens do not attach to a homestead, but only to the surplus, if there be any.</p> <p>2. Under the present statute of this State a homestead right is an estate capable of being conveyed by the owner separately from the fee.</p>

<p>Trespass—Farm Drainage—Diversion of Water from its Natural Course—Proximate Cause of Damage—Turning of Stream into Highway Tile by Adjacent Owner,</p> <p>1. Upon the case presented, this court holds that the defendant was liable to the plaintiff for damage done to his crops by an overflowing tile, drain which conveyed water from an adjacent highway, it appearing that the defendant had drained water from his land, away from its natural course, into the highway drain emptying into said drain.</p> <p>2. The fact that at the time the defendant connected with the highway drain the plaintiff warned him that in case of damage he would hold him responsible, renders the defendant’s claim that the plaintiff had acquiesced for years in the plan of drainage, untenable in the case presented.</p> <p>3. The fact that plaintiff had permitted others, whose lands naturally drained across Ms, to connect with the drain in question, in no respect betters defendant’s position.</p>

<p>Appeal from the County Court of Grundy County; the Hon. A. B. Jordan, Judge, presiding.</p>