Volume 46 — Illinois Appellate Court Reports

<p>Appeal from the Circuit Court of Calhoun County; the Hon. G. W. IIerdmas, Judge, presiding.</p>

<p>Prdctiee—Motion for New Trial—Exception to Decision on, Necessary —Master and Servant—Action for Personal Injury—Degree Of Care Required of Minor, Question for Jury—Instructions.</p> <p>, 1. Where the bill of exceptions does not show that an exception was taken to the decision of the trial court overruling a motion for a new trial, this court can not inquire whether the verdict was authorized by the evidence.</p> <p>2. In the absence of express contract the employer is impliedly bound to use ordinary care to provide a place, and implements and machinery, in and with and about which the employe is to work, so that with ordinary care on his part it will be reasonably safe for him, and to give notice of all the dangers incident to the service of which the servant is not cognizant and the employer is, or ought to be cognizant.</p> <p>3. An employe of full age and sound mind may waive the performance of these duties and does waive it as to all the dangers which he' knows, by voluntarily incurring them; but employes lacking ordinary capaeity do not so waive the performance of these duties on the part of the master.</p> <p>4. Infancy at any.stage is a fact having some tendency to prove incapacity, to a greater or less extent according to age. It is for the jury to determine its weight and whether it is overcome, and to decide each case on its merits and by its particular circumstances.</p> <p>5. Where the employe by reason of youth lacks capacity, the employer has no right to expose him even to patent danger, and with his own consent, but should guard the danger, or supplement his capacity by special instructions such as will enable the youth, by the exercise of ordinary care in view of such instructions, to avoid it.</p>

<p>Appeal from the Circuit Court of Sangamon County; the Hon. J. J. Phillips, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Moultrie County; the Hon. 0. B. Smith, Judge, presiding.</p>

<p>Breach of Promise to Marry—For Work and Labor—Evidence—Instruction.</p> <p>In'an action of assumpsit brought by appellee against appellant on an alleged promise to marry and for work and labor, this court holds that the evidence justified a verdict for the plaintiff on both items, and that the errors in the instructions and the admission of evidence, if any, were trivial and unworthy of consideration.</p>

<p>Municipal Corporations—Negligence of—Action for Personal Injury Received through Fall on Sidewalk—Alleged Defect in Sidewalk—Degree of Care Required of City—Of Plaintiff—Circumstances Affecting.</p> <p>1. In an action against a city to recover damages for an injury received by plaintiff from a fall upon a sidewalk, alleged to have been caused by the negligence of defendant in caring for the same, an instruction that if the plaintiff had frequently used and passed over the crossing before the injury and by using reasonable prudence could have avoided the fall she would not be entitled to recover, was properly refused.</p> <p>2. An instruction that if the crossing was on a street at a remote part of the city and but little used, then less care would be required of the defendant in keeping it in good repair, was properly refused. Ordinary care is required in all cases, but the facts stated might be considered by the jury in determining whether that degree of care was exercised by the city.</p> <p>3. An instruction that if the crossing was necessarily more dangerous than the ordinary sidewalks and crossings, and if plaintiff knew or ought to have known that fact, then the law required her to use more than ordinary care to avoid injury, was properly refused.</p>

<p>Practice—Dismissal of Suit as to One Party after Filing of Set-off.</p> <p>1. Jurisdiction of the person of a defendant is not necessary in order to allow a nol. pros, of a suit against him.</p> <p>2. Upon the case presented, leave was properly given plaintiffs to dismiss their suit as to one of the defendants, although he had filed a set-off.</p>

<p>Appeal from the Circuit Court of Menard County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Logan County; the Hon. Cyrus Epler, Judge, presiding.</p>

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

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

<p>Agency—Service of Writ—Alleged Agent of a Receiver—Plea in Abatement to put Agency in Issue—Prayer of Plea—Railroads.</p> <p>Where an action is brought against a person as receiver of a corporation and the writ is returned as served upon a person, “ clerk and agent ” of the receiver, a plea in abatement may properly be filed to put in issue tlie agency of the party upon whom the writ was served and the prayer of such plea is properly that the writ be quashed.</p>

<p>Principal and Surety—Clerk of Court—Receipt of Costsby—Action on Bond—Duty to Pay Over to Party to Whom Due—Allegation of Breach.</p> <p>There are oases where the clerk “ by virtue of his office ” may receive costs, and as his bond requires him to “pay over all money that may come to his hands by virtue of his office,” it is a sufficient allegation of ft' breach of the conditions of his bond to allege that the costs in question were collected “ by virtue of his office.” •</p>

<p>Administration—Citing Widow of Deceased to Disclose and Surrender Assets of Estate—Forgery—Weight of Evidence—Burden of Proof—Evidence as to Genuineness of Signature—Qualifications of Witnesses as to—Intent of Deceased.</p> <p>1. Under the law of this State handwriting can not be proved by comparing an alleged signature with a genuine one. To render a witness competent to testify as to handwriting he must be acquainted with the handwriting of the person whose handwriting is in issue, either from having seen such party write or by having been acquainted with such handwriting in bushless transactions, so as to be able to give an opinion from memory alone as to the genuineness of the writing.</p> <p>2. It is not indispensable that a witness shall state that he is acquainted with a party’s handwriting if it clearly appears that such is the fact.</p> <p>3. Where the question in issue was the genuineness of the signature of a deceased party upon the back of a promissory note found in the possession of his widow after his death, evidence as to declarations of deceased of his intention to provide for his wife were admissible.</p> <p>4. Where a petition for a citation alleged that the widow had in her possession a certain promissory note belonging to the estate of deceased, and the defendant answered that the note was hers by assignment from the deceased, and the administrator alleged that the assignment was a forgery, the burden of proof was on the administrator, and to sustain his charge, clear and satisfactory proof was required.</p>

<p>Sales—Sr each of Condition—Remedy of Vendee—Implied Warranty of Manufacturer—Pleading—Instructions.</p> <p>1. In an action of assumpsit to recover the price of goods sold, where one defense was that plaintiffs had violated a condition of the contract of sale providing that they should not sell the goods in question to other parties than defendants within certain territory, the court holds that an instruction to the jury that if plaintiffs had violated this condition they could not recover, was too broad. Upon the case presented, this instruction would have justified the defendants in keeping the goods without paying for them.</p> <p>2. Defendants’ remedy for such breach would have been to rescind the contract and, placing the plaintiffs in statu quo, avoid liability, or, not rescinding, they might have retained the property and have recouped whatever damage they suffered from plaintiffs’ breach of the contract.</p> <p>3. An instruction setting forth that if the goods were manufactured by plaintiffs, the law implied a warranty that they were reasonably fit for the purpose for which they were made and in case of their failure the defendants would not be liable, was incorrect, no basis for such an instruction having been laid by the pleadings.</p>

<p>Sci. Fa.—When Return of Not Found Necessary to its Issue—Statute of limitations, Construction of—Clause Applicable to Defendants Leaving State after Action Accrues.</p> <p>1. A summons against two defendants was returned served as to one defendant and no return was made as to the other defendant; held, judgment having been entered as to the defendant served, that a sci. fa. would properly issue against the other defendant, a return non est inventus not being necessary to the issue of a sci. fa. in such a case.</p> <p>2. Section 20 of the Statute of Limitations, providing, that when a cause of action has arisen in a State or Territory outside of this State or in a foreign country and by the laws thereof an action thereon can not be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State, applies only to the cases excepted from the operation of Sec. 18, that is, to cases where both debtor and creditor are non-residents when the cause of action accrues.</p>

<p>Corporations—Inability of Stockholders on Unpaid Stock—Device to Make Stock Appear Fully Paid—Power of Court of Fquity.</p> <p>1. The capital stock of a corporation is a trust fund which can not be given away or misappropriated to the prejudice of corporation creditors; and any device by which members of a corporation seek to avoid the liability imposed upori them by law is void as to creditors.</p> <p>2. Shareholders can not, by private agreement with the corporation or among themselves before the formation of the corporation, make shares of stock non-assessable so as to excuse payment for such stock at its par value to creditors,</p>

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

J. J. Phillips, Judge, presiding. In February, 1887, Parsons & Loake entered into a partnership in the business of raising, buying and selling stock, their place of business being the home farm of Parsons, in Clay County.

In ebbob to the Circuit Court of Clark County; the Hon. C. B. Smith, Judge, presiding. This was an action by plaintiff in error against defendant in error and Lewis Main, John Ellege, Jr., and Frank Morrison.

<p>Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.</p>

<p>Limitations—Effect of Non-Residence—When Does Cause of Action Arise.</p> <p>Sec. SO of Statute of Limitations of this State, providing “ that when a cause of action has arisen in a State or Territory out of this State, or in a foreign country, and by the laws thereof an action thereon can not be maintained by reason of the lapse of time, an action thereon can not be maintained in this State,” has no application to a case where a cause of action arises in this State against a defendant residing here, and thereafter such defendant removes to another State.</p>

<p>1st error to the Circuit Court of Logan County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Sales—Offer to Sell Personal Properly—Aeeeptanee Before Withdrawal—What Not Withdrawal.</p> <p>Where defendant offered to sell to plaintiff certain cattle for a price named and agreed to meet him at a certain time and place to receive his answer, the fact that defendant remained away from such place did not constitute a withdrawal of the offer, and the plaintiff having attended, at the time and place agreed, to accept the offer, and the next day sent to the defendant to complete the purchase, the defendant became liable for the damages occasioned to plaintiff by his failure to complete the contract.</p>

C. J. Scofield, Judge, presiding. This was a petition for mandamus presented by the relator, The Keokuk & Hamilton Bridge Company, by its superintendent, John II. Cole, and its attorney, G. Edmunds, filed June 18, 1891, with the clerk of the Circuit Court of Hancock County, Illinois, and summons issued returnable June 25, 1891, which was duly served.

<p>In ebbob to the Circuit Court of Cass County; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>Appeal from the County Court of McDonough County; the Hon. J. H. Walkeb, Judge, presiding.</p>

<p>Appeal from tlie Circuit Court of Cass County; the Hon. Lyman Lacey, Judge, presiding.</p>

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

<p>Railroads — Negligence—Personal Injuries Received in Stepping from Train—Too Brief Stop—Negligence of Conductor.</p> <p>In an action brought to recover from a railroad company damages for a personal injury received while alighting from defendant’s train, held, that the evidence justified the verdict for the plaintiff.</p>

<p>Fraudulent Sales—Statement of Vendor—When Not Admissible in Action Between Vendee and Vendor’s Creditors—Evidence—Instructions.</p> <p>1. Where the issue in a case was as to whether a sale made to one of the parties was fraudulent as to the creditors of the vendor, such creditors being the other parties to the issue, a statement made by the vendor to a commercial agency, and which did not include a debt to the vendee, which was alleged to he a part of the consideration of the sale, was not proper evidence as against the vendee.</p> <p>2. It was error for the court to reiterate instructions calling the attention of the jury to the fact of relationship between the vendor and vendee as tending to establish the charge that the sale was fraudulent.</p>

<p>Appeal from the' Circuit Court of Greene County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Fulton County; the Hon. Jeff. Orb, Judge, presiding.</p>

<p>Administration-Relation of Administrator to Widow of Intestate— Excessive Charge of Fees by Administrator—Recovered Back, When.</p> <p>Where an administrator represented to the widow of his intestate that the estate was insolvent and that the fees due him were $80.10, which sum the widow paid to him, and it appeared that the sum so paid was in excess of the legal fees and expenses, held, that in view of the trust relation, between the parties, this was not to be regarded as a voluntary payment, but that the excess might be recovered back in an action by the widow.</p>

<p>Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.</p>

J. J. Phillips, Judge, presiding. This was an action of replevin brought by the appellant against the appellees to recover a stock of groceries, woodenware and other like articles. The declaration contained two counts, both averring that the chattels in conr troversy were the property of the appellant, one averring that such chattels had been unlawfully taken from him and the other that they were unlawfully detained from him.

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

<p>Appeal from the Circuit Court of Montgomery County; the Hon. J. J. Phillips, Judge, presiding.</p>

<p>Burial Grounds—Regulation of Burials—Power of City Council— Rights of Private Owners of Cemetery Lots.</p> <p>Where a private person purchases from, a cemetery corporation a lot in its cemetery, and subsequent to such purchase the company transfers all its cemetery property to the city in which it is situated, and after the conveyance to the city an ordinance is passed providing that no grave shall be dug in the cemetery except by permission and under the direction of the city sexton, held, that the city could not by such ordinance deprive the, above named private purchaser of the right to dig a grave, or hire one dug by whom he pleased, in his lot, provided such digging was done in a safe and proper manner.</p>

<p>Injunctions—The Carrying on Certain Business—Oppression in Obtaining Contract—Sufficiency of Evidence—Partnership.</p> <p>Where one of two partners engaged in the business of photography, sold out to the other, and agreed in the contract of sale that he would not enter into the same business in the city where- they were located, but, contrary to such agreement, did enter into the same business, held, that an injunction would issue to restrain him from carrying on such business, the defense that the contract was obtained by unduly oppressive measures being unsustained by the evidence.</p>

<p>Sales—Vendor’s Lien—Sale of Property by Vendee—Whether Vendee’s Purchaser Chargeable with Knowledge of Lien—Agency—Instructions.</p> <p>1. In an action of replevin brought by a vendor to recover certain property on which he claimed a lien, where such property had been sold by the vendee to a third party, held, that the evidence was not sufficient to establish that a certain individual, who had knowledge of the lien, acted in the transaction as the agent of the defendant in making the purchase of the property from the first vendee, so as to charge the defendant with notice of the lien.</p> <p>a. Certain modifications of instructions by the court on the question of agency held, to have been correct.</p>

<p>Appeal from the Circuit Court of Logan County; the Hon. G-. W. Herdman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Mason County; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>Principal and Surety—Action of Debt on Sheriff’s Bond—Paymentby Sheriff to Attorneys of Proceeds of Execution Contrary to Plaintiff’s Orders—Ratification of Sheriff’s Act.</p> <p>In an action brought on a sheriff’s bond to recover the proceeds of an execution which had been paid by the sheriff to the plaintiff’s attorneys of record, contrary to the express direction of the plaintiff, as was alleged, held, upon the case presented, that the court below was justified in finding that the act of the sheriff had been ratified by the plaintiff, and that, after a delay of five years, the memory of the plaintiff was at fault in recalling her directions to the sheriff.</p>

<p>Master and Servant—Action for Services—By Woman against Divorced Husband—Evidence.</p> <p>In an action for services, brought by a woman against her divorced husband, where the defense was that the services were rendered without request from the defendant and gratuitously, this court holds that the evidence warranted a finding by the jury against such defense.</p>

<p>Appeal from the Circuit Court of Jersey County] the Hon. G. W. Herdman, Judge, presiding.</p>

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

<p>Criminal Recognizance—Judgment of Forfeiture—When Set Aside— Discretion of Court.</p> <p>The action of a trial court in setting aside, upon affidavit, a judgment of forfeiture, because of defendant’s failure to appear according to the terms of a criminal recognizance, is discretionary, and this' court will not interfere with such action of the lower court, unless it appears that there was an abuse of the discretionary power.</p>

<p>Appeal from the Circuit Court of Logan County; the Hon. G-. W. Hebdman, Judge, presiding.</p>

<p>Sales—Horse—Warranty—Action for Breach of—Warranty Executed by One of Two Partners—Whether Other Partner Bound.</p> <p>In an action to recover damages for the breach of a warranty of a horse bought by plaintiff, where the defense was that the horse was the individual property of one of the defendants who executed the warranty, and that he had no authority to sign his partner’s name to the warranty, this court holds that the evidence entirely failed to support this defense.</p>

<p>In error to the Circuit Court of Morgan County; the Hon. Citrus Epler, Judge, presiding.</p>

<p>Appeal from, the Circuit Court of McLean County; the Hon. O. T. Beeves, Judge, presiding.</p>

<p>Criminal Law—Witness Fees in Criminal Case—Witness Subpoenaed in Several Cases at Same time—Whether Entitled to Fees in Each Case.</p> <p>Where a person is subpoenaed to attend, and does attend, a court of record in his own county as a witness in behalf of the people of the State in a" number of separate criminal cases against different defendants pending at the same time for trial, such witness is entitled to receive his witness fees and mileage in each of the cases in which he is subpoenaed.</p>

<p>Pleading—Statute of Frauds—Demurrer—When Plea Necessary to Present Question Whether Contract Contrary to Statute.</p> <p>Where there was a contract in writing, by which the subscribers agreed each to take, at a certain price, one of certain lots, which were to be subdivided out of a tract of land by the owner, the particular lots to be allotted to the subscribers after they were all subscribed for, and the land having been platted, and the requisite number of subscribers obtained, the allotment was made, in an action brought against one of the subscribers for the price of the lot allotted to him, where a demurrer was interposed to the declaration, on the ground that it did not appear that the allotment of the particular lot to the defendant was in writing, held, that, as it did not affirmatively appear from the declaration that such allotment was verbal! the statute of frauds could only be set up in defense of the action by a plea, assuming it to be necessary that the allotment ought to have been in writing.</p>

<p>Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Appeal from the County Court of Morgan County; the Hon. O. P. Thompson, Judge, presiding.</p>

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

<p>s Bills of Exceptions—Amendment of—Practice—Exemptions—Filing Schedule—Omission Therefrom of Part of Property—Failure of Officer to Attach Jurat to Schedule.</p> <p>1. A bill of exceptions did not show that exception was taken to the judgment, and, upon notice, the court at the next term amended the bill of exceptions to show the fact that exception was duly taken: held, that the amendment was properly allowed, and that the fact that the judge allowing the amendment was the successor of the judge presiding at the trial was immaterial.</p> <p>2. The omission of articles from a debtor’s schedule does not deprive the debtor of the right to claim exemption of the articles actually scheduled.</p> <p>3. Where a sheriff administered the oath to a debtor filing a schedule with him but failed to attach the jurat to the schedule, held, that his omission did not deprive her of her right of exemption.</p>

<p>Landlord and Tenant—Verbal Lease for Twenty Years—Attempted Assignment of—Tenancy from Year to Year, Sow Created.</p> <p>A verbal lease of land for a term of twenty years at a nominal rental of one dollar for the entire term, is to be regarded as a tenancy at will, or a mere license, and is not assignable.</p>

<p>Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

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

<p>Personal Injuries—Action for Personal Injury—Moving Cars in Railroad Yard at Street Crossing—Negligence,</p> <p>In an action brought by plaintiff against defendant to recover damages for having his foot crushed by box cars in motion in defendant’s yard, where it was crossed by a public street which plaintiff was upon, the cars in question being detached from an engine and accompanied by a single brakeman situated about the middle of the forward car, this court holds that the jury were justified by the evidence in finding defendant guilty of negligence and that the plaintiff was in the exercise of ordinary care at the time of the injury.</p>

<p>Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Banks—Deposit of Funds with—Death of One of Firm—Alteration ' of Terms of Deposit Subsequent to his Death—Estate of Deceased not Liable on Certificate of Deposit.</p> <p>Where a person made a deposit with a firm of bankers and received a certificate of deposit stating that the sum would draw interest contingently, but not after maturity, and prior to the maturity of the certificate a member of the firm died, and subsequently the certificate was indorsed from time to time with the payment of interest and an extension of its time for payment, held, that on the case presented the indorsements constituted new contracts between the depositor and the surviving members of the firm and that the estate of the deceased partner was not liable on the original contract.</p>

<p>Practice—Evidence—Objection to.</p> <p>An appellant can not be permitted to raise for the first time on a petition for a rehearing in this court the objection to certain evidence, that better evidence of the facts testified to was in existence and should have been produced.</p>

<p>Attachment—Writ of Error by One of Two Defendants—Error as to Other Defendant Immaterial—Instructions—Fraud.</p> <p>A complaint of instructions to the jury, in a case of attachment, that they authorized a finding against both of two defendants, if the evidence showed that either had been guilty of fraud, can not be complained of on a writ of error sued out by the defendant against whom the evidence was strongest, as he could not have been injured by such instructions.</p>

<p>Appeal from the Circuit Court of Yermilion County; the Hon. F. Booicwalter, Judge, presiding.^</p>

<p>Jurisdiction of Appellate Court—Question of Freehold—Public Highway.</p> <p>Where one party affirms and the other denies that the public has of right an easement of indeterminate duration, really perpetual, over the land of one party, and this is the only question in the case, a question of freehold is involved, and this court is without jurisdiction.</p>

<p>Justices—Action Before—Consolidation of Claims.</p> <p>In an action before a justice of the peace a plaintiff is not bound to consolidate two demands in one suit where one demand is for labor and the other is for damages for a breach of a contract.</p>

<p>Judgments and Decrees.</p> <p>A judgment of this court, reversing and not remanding the judgment of the Circuit Court, having been reversed by the Supreme Court because the finding of facts was not incorporated in the judgment, this court enters judgment de novo, and directs the clerk to incorporate the finding of facts in the judgment.</p>

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

<p>Injunctions—Corporations—Right to Keep “ Stud Bool:.”</p> <p>Hpon a bill filed to restrain the defendant association from using its corporate name upon the ground that it confused the public as to the authenticity of the pedigree of a certain breed of horses and injured the complainant, the right of defendant to keep a “ stud book” of such breed being involved, this court holds, in view of the fact that the defendant is the older corporation, that the decree in its favor can not be disturbed.</p>

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

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

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

<p>Administration—Agency—Real Estate—Commissions for Sale of— Evidence—Bootes—See. S, Chap. 51, R. S.</p> <p>1. Agency can not be created by the declarations of the agent,</p> <p>2. Authority from an owner of real estate to sell the same can not be shown by an entry, relating thereto, on the alleged agent’s private record book'.</p> <p>3. Sec. 3, Chap. 51, R. S., does not at all change the old law as to the character of the book that may be admitted, or of the items or charges that may be proved by it.</p> <p>■ 4. A third person is as competent now as he was before the statute of 1887 (Sec. 2, Chap. 5, R. S.) to testify concerning the statements of a deceased person in a case where the representative of the deceased person is a party, and the fact in the case presented, that a witness named was also the defendant as executor of his deceased father, whose statements were sought to be proven, did not render him incompetent as to such statements.</p> <p>6. This court holds as proper the sustaining of the objection to the testimony of plaintiff's counsel as to alleged statements made by the defendant after leaving his father’s room upon a certain occasion, it not appearing that he was the bearer of any message from him; but that a certain letter written by said attorney to the defendant’s intestate, together with the writing by the latter upon its back, should have been permitted to have gone to the jury, and that the judgment for the defendant cannot stand.</p> <p>7. Secondary evidence of the contents of a letter properly excluded in the case presented.</p>

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

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

<p>Contempt.</p> <p>This court dismisses the writ of error in the case presented, the facts being that a person named, was adjudged guilty of contempt by the Circuit Court for failure to comply with an order on the chancery side thereof, and was ordered to be confined in the county jail for the term of sixty days from a given date, which time has long since elapsed.</p>

<p>Ufe Insurance—Policy—Breach of Conditions—Suicide—Evidence —Instructions.</p> <p>1. Admissions made before a person was appointed administratrix in a given case are not evidence against her when suing as such, nor against her successor so bringing suit.</p> <p>3. Suicide of a policy holder is an affirmative defense to be made by the company in an action upon such policy.</p> <p>3. In such case an instruction making an accidental act of the deceased which resulted in his death a defense, should not be given.</p> <p>4 Nor one summing up the evidence and in the nature of an argument.</p> <p>5. Nor one as to false testimony by any witness, omitting the qualification that such falsity was wilful.</p>

<p>Master and Servant—Negligence of Master-—Personal Injuries.</p> <p>1. V/here a defendant continues to put in evidence after excepting to the action of a given court in refusing to instruct the jury to find for the defendant, such exception must be considered waived.</p> <p>2. A court of review can not set aside a verdict as not warranted by the evidence, unless a motion for a new trial upon that ground was made, denied, and the denial excepted to in the lower court.'</p>

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

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

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

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

<p>Appeal from the Circuit Court of Cook County; the lion. Francis M. Wright, Judge, presiding.</p>

<p>Contracts.</p> <p>In an action brought upon a contract touching the advertising of defendants’ business in a certain number of cars of a railroad company this court holds that he failed to give the requisite notice, in view of the terms thereof, of a desire to discontinue the same, and that the judgment against him. in a sum named must be reversed.</p>

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

<p>Dram Shops—Salesman—Northwestern University—Practice Act, See. 75.</p> <p>This court affirms a judgment against the defendant in an action brought for violations of an amendment to an act providing for the incorporation of the Northwestern University, the same referring to the sale of liquor in proximity thereto, and holds there is nothing in the contention as to the alleged repeal of said section by implication, by subsequent legislation, or that it is void as special legislation.</p>

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

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

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

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

<p>Appeal and Error—Administration—Mortgages—Beal Property.</p> <p>1. Errors not argued may be considered as abandoned.</p> <p>2. The recording of a mortgage which does not state the amount of the note it was given to secure, is not notice to creditors and bona fide purchasers of the amount of the indebtedness for which such note was given; such record is constructive notice only of what appears on its face, and the record affords no security as against a judgment creditor of the mortgagor. In this State a creditor who has by virtue of judgment and execution obtained a lien upon premises, occupies the same position with respect to prior unrecorded conveyances as does a purchaser; he is bound to note the terms of a will appearing in his chain of title.</p> <p>3. Whenever a testator directs, first, that his debts shall be paid, such direction amounts to a charge of the debts upon the real estate, in all cases where the real estate is afterward disposed of by the will. So, too, when an executor is directed to pay debts and real estate is devised to him, either personally or as executor, the land so devised is charged.</p> <p>4. While the law in this State is that the real property of the estates of deceased persons is in all cases secondarily liable for the debts of the decedents, our statutes do not abrogate the common law by which the lands may be made by virtue of the provisions of a will, specifically or generally chargeable with the payment of debts and legacies, nor do our statutes remove .the lien thus created or exonerate the executor from the discharge of the trust which may be thus imposed.</p> <p>5. A bona fide purchaser from an executor or devisee of lands charged generally, only with the payment of debts, is not bound to see to the application of the purchase money. \</p> <p>6. The statute of this State merely places judgment creditors and bona fide purchasers upon the same footing as to the effect of the filing' for record of deeds, mortgages and other instruments of writing authorized to be recorded; it does not make a judgment creditor a bona fide purchaser, or declare that he shall be so treated. In the matter of the effect of the act providing for the recording of instruments affecting the title to real estate, he is classed along with and upon the same plane as bona fide purchasers.</p>

<p>Agency—Sale of Beal Estate—Beeovery of Commissions—License— Evidence—Instructio ns.</p> <p>1. The fact that a real estate agent had been in business for a number of years or was licensed at the time of a certain trial, does not raise the presumption that he was so licensed two years before.</p> <p>2. In an action brought by a real estate agent for the recovery of commissions, the declaration being in assumpsit and containing nothing but the common counts, the plea of the general issue entitles the defendant to introduce an ordinance relating to such agents. No special contract having been declared on, it will be time enough for the defendant to plead the ordinance in his defense when a special contract had been alleged against him that brought the plaintiff within the purview of the ordinance.</p> <p>3. An instruction should not refer to such agent with reference to such license in the present tense, the question in such cases being as to whether the licenses had been issued at the time the parties dealt.</p> <p>4. An unlicensed real estate agent doing business in Chicago, can not recover commissions.</p>

<p>Agency—Sale of Real Estate,</p> <p>In an action brought to recover money alleged to have been received by defendants as agents for plaintiff for the sale of real estate, this court holds, in view of the giving of certain erroneous instructions in his behalf, that the judgment in his favor can not stand.</p>

<p>Appeal from 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 Driggs, Judge, presiding.</p>

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

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

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

Frank Baker, Judge, presiding. The appellee in this case was injured by the falling of an - iron post standing upon the sidewalk in Chicago; this post was painted and used as a barber sign, and presented the appearance .of wood; it was not properly braced or fastened to the walk. The evidence shows that the post was eighteen inches in diameter at the bottom, ten to twelve feet high and weighed from 500 to 800 pounds.

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

<p>Separate Maintenance—Payment of Alimony and Solicitor’s Fees.</p> <p>1. An order to pay alimony in a proceeding for separate maintenance must always be based upon a showing of an ability to pay.</p> <p>2. Where separate maintenance is awarded, and it appears that the defendant is unable to pay anything as alimony, upon a proper showing it may be awarded at some subsequent date.</p>

<p>Forcible Detainer—Restitution.</p> <p>1. In actions of forcible detainer, the question is not in whom is the title to the premises, but is one of possession and right of possession only. 3. The law of the State of Illinois is well settled, that the grantee of the landlord’s reversionary interest or estate is the proper person to bring the action of forcible detainer after determination of the lease.</p> <p>8. There is a distinction between cases where the original entry was forcible, and those where it was peaceable, and the detention alone is wrongful and tortious. Where the entry is forcible, the right of action is complete as soon as the entry is made, in the person whose possession is thus tortiously invaded; hut when the entry is made peaceably and without force, it is the detention alone that is unlawful and tortious, and no right of action exists until after demand for possession. The injured party is the only one who can bring the action, and he is, in the one case, the person entitled to the possession at the time of the tortious or forcible entry, and in the other case, the person entitled to the possession, when the tortious withholding occurs after demand for possession.</p> <p>4. A person occupying premises by license of the tenant can not surrender the tenant’s possession thereof, by himself vacating the same.</p> <p>5. In an action of forcible detainer, this court declines to interfere with a judgment of restitution in favor of the plaintiff.</p>

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

<p>Ufe Insurance—Mutual Benefit Association—Failure to Pay Assessments.</p> <p>1. Where a body is called upon to act, an opportunity must be given to act or decline to do so. A lodge can not be said to have made an assessment because its presiding officer has assumed it would do so, and directed its members to act as if it had done so.</p> <p>2. In an action brought by the beneficiary named in a life insurance certificate, this court holds, in view of the evidence, that assured did not fail to pay any assessment made by the subordinate lodge of which he was a member; that his certificate was not at any time forfeited, and that the judgment against her can not stand.</p>

<p>Garnishment—Attachment—Exemptions—Jurisdiction.</p> <p>1. A debtor residing in another State can not have the benefit of the exemption laws thereof, in a proceeding by a creditor against him in this State.</p> <p>2. In an action wherein an insurance company is a garnishee, the same being ap attachment without personal service on the defendant, the affidavit and bond are both defective; the former in not stating that the affiant is the agent or attorney of the plaintiff, and the latter in being less than double, the amount sworn to be due.</p> <p>3. A garnishee can only object to the proceedings of the plaintiff against the defendant upon such points as affect the jurisdiction of the court; mere errors or irregularities, not affecting the jurisdiction, and so not affecting its protection against subsequent claim by the defendant, may not be objected to.</p> <p>4. Defective affidavit and bond in such case being amendable, are not void, and not being void, the jurisdiction of the court is not affected by the defects.</p>

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

<p>1teal Estate Contract—Bill for Cancellation of and Return of Earnest Money.</p> <p>1. If a person adopts a certain contract as to a given payment, thereby ratifying that act as the act of an agent for him, he must stand upon the same footing as if such act was that of an agent acting under previous authority.</p> <p>2. Although a person being sued upon a given contract entered into by one alleged to be his agent can set up the statute of frauds as a complete defense, unless upon the merits as to fraud or deceit he is in good conscience discharged from the contract, he can not have affirmative relief.</p>

<p>Jurisdiction of Appellate Court—Short Cause Calendar—Statute.</p> <p>This court is without jurisdiction to pass upon the validity of statutes.</p>

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

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

<p>AppeXl from the Superior Court of Cook County; the Hon. Fbancis M. Weight, Judge, presiding.</p>

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

<p>Negotiable Instruments—Note—Execution—See. 3%, Chap. 110, JR. S. —Attachment Aet, See. 27.</p> <p>1. If the defendant in an action upon a promissory note desires to raise the question of the obligation being that of some one else, and not of himself, he must put the execution of the instrument in issue by his plea, duly verified.</p> <p>3. The action in the case presented was in assumpsit begun by attachment and based upon a promissory note. The trial was begun before a jury and evidence was heard upon the merits to a point where the court considered the law question was presented as to the liability of the defendant upon the facts adduced; then, by agreement of counsel, the jury was waived and the cause submitted to the court and the trial proceeded with. This court holds, it being contended that the court erred in not quashing the attachment and in not submitting the issue on the attachment to the jury separately from that upon the merits, that the whole case was before the jury in the first instance, both upon the merits and upon the plea to the attachment, and that there is nothing in the record to show that the whole cause was not submitted to the court.</p> <p>3. There is no support to the contention of counsel, that Sec. 37 of the Attachment Act requires a separate trial of the right to attach. And the affidavit of the defendant, submitted on the motion for a new trial, as to what his understanding was of the effect of the submission of the cause; to the court, can not he allowed to overcome the record, which shows that the whole cause was submitted to the. court, and that evidence upon both issues 'was heard.</p> <p>4. This court holds that the evidence justified the trial court in finding for the plaintiff on the issue of non-residence of defendant, and declines to interfere with the judgment for the plaintiff.</p>

<p>Petition for mandamus.</p>

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

<p>Negotiable Instruments—Promissory Note—Set-off.</p> <p>In an action upon a promissory note this court holds, that the facts set up in defendants’ special plea constituted a valid set-off; that plaintiff’s demurrer thereto should have been overruled, not sustained; that defendants should have been allowed to prove the truth of the plea if they could, and that the judgment for the plaintiff can not stand.</p>

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

<p>Criminal Law—Municipal Corporations—Ordinances—Intelligence Offices.</p> <p>1. The provisions of a municipal charter permitting the regulation of certain occupations, are in effect a prohibition against interference by the city with business concerning which the charter makes no mention.</p> <p>3. The city of Chicago not having been empowered to license, prohibit or regulate intelligence offices, the penalty prescribed for the violation of its ordinance relating to the subject, can not be imposed.</p>

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

<p>New Trial—Practice.</p> <p>Unless it is assigned in the trial court as a reason for a new trial that the damages awarded in a given case were excessive, the .point can not be urged herein.</p>

<p>Contracts—Procurement of Loan—Commission—Recovery of— Usury.</p> <p>1. Where persons have deliberately put their engagements into writing in such terms as import a legal obligation, without'any .uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking was reduced to writing, and all oral testimony of a previous colloquium between the parties, or of conversation or declarations, at the time when it was completed, or afterward, must be rejected.</p> <p>2. In an action brought to recover a sum claimed to be due as commission for making a loan, a note having been given for the amount thereof, this court holds that evidence as to an alleged parol agreement as to a commission was inadmissible and declines to interfere with the judgment for the defendants.</p>

<p>Husband and Wife—Partnership—New Trial—Damages.</p> <p>1. Excessive. damages as a ground for a new trial must be specially assigned in the motion, or that ground is waived.</p> <p>3. A husband may enter into partnership with his wife.</p> <p>8. When they sue as joint plaintiffs. Sec. 84, Practice Act, dispenses with proof of then- joint interest, though it may be disproved.</p> <p>4. Presumptively a husband supplies the house.</p>

<p>Negotiable Instruments,</p> <p>1. In view of the evidence in the case presented, this coiu-t holds that a person named, properly made, in the name of a corporation, the note involved.</p> <p>3. The action of the trial court in the case presented in granting leave to defendant nunc pro tunc to file a verified plea which had been filed without leave, denying the execution of the note, can not be revoked. The assignment was not thus denied and therefore was not in issue.</p> <p>3. This court likewise holds that the note in the case presented is prima facie supported by a valuable consideration; if not so in fact, the burden is on the defendant to show all the circumstances.</p>

<p>Garnishment—See. 10, Chap. 62, R. S.—Jurisdiction,</p> <p>In garnishment proceedings this court affirms the judgment for the garnishees, in question, no judgment having been obtained against the principal defendant.</p>

<p>Beal Property—Sale—Quit-claim.</p> <p>In the case presented, this court holds that petitioner, having redeemed from the sale of certain real estate before ’ the certificate of evidence herein was made, that the decree of the lower court denying the prayer for a quit-claim deed from defendants was correct.</p>

<p>In error to the Circuit Coiirt of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>Practice—Placing Case upon Short Cause Calendar—New Trial— Affidavits.</p> <p>1. The rule in cases of mere irregularity requires the party to move at the first opportunity, or show an excuse for not doing so. Where the merits are involved, the rule is not applied with so much vigor.</p> <p>2. Where judgment is rendered against tire defendant in a given cause in his absence, and in the absence of any agent or attorney, an affidavit asking that the verdict and judgment be set aside and for anew trial, should show the facts on which the defense is based.</p> <p>3. Irregularity as to service of papers necessary to get a cause upon a short cause calendar, are waived if no objection is promptly made.</p>

<p>Commission Merchants—Board of Trade.</p> <p>A commission merchant upon the board of trade may not apply the gains of one patron in offsetting the losses of others.</p>

O. H. Horton, Judge, presiding. On the 14th of June, 1890, the following agreement was made by appellant: “ Chicago, June 14, 1890. “ Received of George S. Ostrom one thousand dollars as part payment toward the purchase of the following real estate: The west one hundred and twenty (120) acres of the southwest quarter (S. W. J) of section ten (10), township thirty-seven (37) north, range thirteen (13) east, Cook county, Illinois, which is hereby bargained and sold to the said…

<p>Assignments—Claim of Ex-employe.</p> <p>1. An assignee succeeds to all the rights and liabilities of the assignor.</p> <p>What the assignor was obligated to pay can not be denied by the assignee: he acquires no exemption from, the obligations of the assignor which the latter did not possess at the time of the assignment. The mere act of assignment does not relieve the assignor from the duty of paying its debts and liabilities, and no more is the assignee relieved thereby. The Assignment Act merely provides a means for the equitable and pro rata distribution of the assets of the insolvent among his creditors, without favor or preference.</p> <p>2. Upon a claim filed by an ex-employe against the insolvent estate of his employer in the hands of an assignee, the same being based upon a contract for service in full force at the time of the assignment, this court holds that the true test in determining the right of claimant to share in the assets, is as to whether the liability to him was one based on a right or obligation existing at the time the assignment was made. That the mere fact that the extent of the obligation was not then determinable can not defeat the obligation itself, subsequent employment fixing the amount to which he was entitled for non-performance; that the court below erred in dismissing the claim in question, and that its judgment must be reversed.</p>

Frank Baker, Judge, presiding. Appellant issued to appellee its policy of insurance for $1,000, viz., $250 on stock of spur wire machines and other specialties not more hazardous, and materials for same; $750 on machinery of all kinds used in his business, including tools, implements and patterns in use. Appellee had two policies, concurrent as to amount and property. A fire occurred June 28,1889.

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

<p>Appeal and -Error—Negligence of Master—Defective Ladder—Injury to Employe—Master and Servant.</p> <p>In an action brought to recover damages for injuries to a minor servant, alleged to have occurred through the negligence o'f his employer, this court declines to interfere with the judgment for the defendant, alleged errors of the trial court being set out in a general, not a particular manner.</p>

<p>Landlord and Tenant—Trespass—Talcing Possession after Termination of Lease.</p> <p>An action of trespass guare clausum fregit can not be maintained against the owner of premises, having the right of possession, who merely takes possession of what is his own.</p>

Elliott Anthony, Judge, presiding. This was an action to recover damages arising from the death of one George Staff, a minor, who was struck and killed by a train belonging to appellant, at the intersection of Horth Halsted and Division streets, in the city of Chicago, in Eovember, 189Q. Among the acts of negligence charged, were that the defendant negligently failed to give due and timely warning, by means of whistles and bells, of the approach of the trains; that the…

<p>Replevin— Options.</p> <p>1. In an action brought to recover certain office furniture, this court construes the contract involved, and holds, in view of the same and the evidence, that the direction to find for the defendant was erroneous.</p> <p>2. The contract involved, wherein an option is given to buy certain goods, is void.</p>

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

<p>Master and Servant—Liability of Master for Act of Servant.</p> <p>In an action brought to recover from a railroad company for personal injuries alleged to have been sustained through the wrongful act of one of its conductors, there being no corroboration of plaintiff’s testimony, this court reverses the judgment for the plaintiff and remands the cause in order that another trial may be had.</p>

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

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

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

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

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

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

<p>Administration—Claim of Seventh Class.</p> <p>1. In proceedings under insolvency laws a secured creditor may prove for and receive a dividend upon the full amount of his claim, notwithstanding he may, after proving, have realized upon the security, provided that he can not from all sources realize more than the amount of his debt.</p> <p>2. A creditor holding security may charge against the proceeds of such collateral, such expenses ’ as are reasonably necessary in keeping, caring for, protecting and realizing upon his pledge.</p> <p>-3. In respect to the administration of estates, the estate in a given case consists of that which comes to the hands of, and may be administered by the administrator or assignee; that which is available for the benefit of all creditors. That which is pledged, held as security, belongs to the creditor for whose benefit it has been pledged; only what is left after a discharge of the lien, is assets of the estate. An administrator may, at any time, with the sanction of the court, pay off the secured debtor and make his security a part of the estate.</p> <p>4. Upon an appeal by administrators from an order allowing a claim to be paid as a claim of the seventh class, in the administration of a given estate, certain notes having been given for a loan by claimant to their intestate, the controversy resulting from the fact that claimant held certain collateral as security for such notes, and had realized therefrom part of its claim, this court holds in view of the evidence, that there is nothing in the contention of appellants, that a certain agreement entered into by them with claimant, touching the indebtedness in question, is not binding upon them, because signed by them only, because upon the faith thereof rights have arisen thereunder which the courts are now merely called upon to enforce, and declines to interfere with the judgments against them.</p>

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

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

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

O. H. Hobton, Judge, presiding. In the years 1887 and 1888, Little, the appellant, did work under, a contract with the village of Hyde Park (now city of Chicago), in filling and grading Commercial avenue. ' The work was accepted by the village authorities. There is still due and unpaid to him therefor the sum of $2,041.62.

<p>Negotiable Instruments—Forbearance—Short Cause Calendar—Interest,</p> <p>1. Where a creditor refrains from attempting to collect a debt, in consideration of the giving of notes covering the same indebtedness by third parties, the latter are based upon a sufficient consideration.</p> <p>2. Where the parties to a given suit appear, waive a jury and proceed to a trial without objection, after a motion to strike the cause from the short cause calendar has been denied, such action amounts to a waiver of all ground of objection to the time of the trial.</p> <p>3. Where no variance was specifically pointed out on the trial, the question whether certain notes varied from the description of them in the declaration in a given case, will not be considered herein.</p> <p>4. Whether all the goods ordered, for which notes were given, were sent, or part of them delayed at the request of a person named, or without such request, is not a question, under a plea of no consideration.</p> <p>5. A bill of exceptions should ordinarily be written and signed during the term at which the decision was rendered, in regard to which the exception was taken.</p>

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

S. P. McConnell, Judge, presiding. This was an action on the case, for slander, brought by the ‘ plaintiff, appellee, against appellant. The declaration, in substance, charged the defendant with having falsely accused the plaintiff of unchastity. A verdict of $5,000 w;as rendered. It was reduced by a remittitur to $2,500, and judgment rendered thereon. The only plea filed was the general issue.

Kirk Hawes, Judge, presiding. Appellant filed in the court below her bill alleging the ownership by her for many years óf a lot, with a cottage thereon, in the city of Chicago; that the defendants, having obtained a lease of adjoining premises, had moved a cottage thereon forward “ flush ” with the sidewalk on said lot; that the work defendants have done and propose to do on their said lot, is in violation of the ordinances of the city of Chicago ; that the dripping from the…

<p>Corporations — Personal Inability of Stockholders—Jurisdiction— Practice—Set-off.</p> <p>1. In chancery, the ordinary condition precedent to equitable relief based upon the ability of anybody to pay, is an execution returned unsatisfied. The court will accept no proof of inability other than an unsuccessful effort to compel payment by process of law.</p> <p>2. Upon a bill filed to charge defendant® on account of their individual liability as stockholders in a corporation, this court holds that until all the debts are paid, the creditors are entitled to pursue the stockholders for all unpaid subscriptions—solvents making good the deficiencies of insolvents—whatever number of assessments may become necessary in equalizing the burden among those who can be made to pay.</p> <p>3. The certificate of a clerk of court setting forth that the transcript in a given case is complete “ as per praecipe filed,” amounts to a statement that it is complete as far as it goes, of as much as the maker desired.</p> <p>. 4. The objection of the defendants in the case presented as to the allowance of a set-off to certain stockholders can not be considered herein, no objection having been made before the master, nor exception before the court, to the action of the master on the set-off.</p>

Theodore Brehtaho, Judge, presiding. An action of assumpsit was brought in the court below by Willie G-.

Joras Hutciiirsor, Judge, presiding. The place where the accident occurred concerning which this suit was brought, is in South Chicago, at a point on the line of the Illinois Central Railway at its intersection with what is commonly called 83d street.

Frank Baker, Judge, presiding. The estate of Joseph Wallace being under administration in the Probate Court of Cook County, an affidavit was filed therein setting forth in substance, that the Chicago & Erie Stove Company is a limited corporation organized under tire laws of the State of Pennsylvania, and that said company is a large creditor in the estate of Joseph Wallace, deceased; that the executrix of said Wallace, deceased, filed a pretended inventory; that affiant is…

<p>Mechanics’ Lien—Act of 1887.</p> <p>1. A petition for a mechanics’ lien by an original contractor can not be sustained unless he has complied with the provisions of the lien law.</p> <p>3. A failure to call for the statement which the original contractor was bound to furnish before he could draw money in view of the act of 1887, can not be looked upon as a waiver of the obligation to supply the same.</p>

<p>Trusts—Session Laws 1891, S08.</p> <p>In an action brought to recover for certain milk sold and delivered by a corporation composed of milk producers, the only defense being made under the act approved June 11, 1891, touching the punishment of persons guilty of forming trusts, pools and combines, this court holds that for the purposes of this case the stockholders have no existence, suit having been brought by the corporation; that the proper construction of such act does not prohibit the conduct of corporations or copartnerships in accordance with the opinion of a majority of the directors or partners after mutual counsel, and enters judgment herein in behalf of the plaintiff for the amount claimed.</p>

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

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

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

Theodore Brentaho, Judge, presiding. In 1879 James R. Paul brought suit against the ¿Etna Life Insurance Company to recover from it certain premiums paid upon a life insurance policy to him by it theretofore issued, which policy the company had assumed to cancel because of certain alleged false representations made by him in procuring the insurance. He obtained a judgment, which was, on appeal, reversed by this court.

<p>Practice.</p> <p>1. A technical answer may be considered a sufficient reply to a technical objection.</p> <p>3. A clerk can only certify copies of the flies of his office; he can not state extrinsic facts.</p> <p>3. In the case presented, this court holds that the bill of exceptions is not a part of the record herein.</p>

<p>Fire Insurance—Reformation and Enforcement of Policy.</p> <p>1. The evidence to justify the reformation in equity of a written contract between parties on the ground of a mistake in facts must be clear. convincing and satisfactory. It may not be done upon uncertain, doubtful and unsatisfactory evidence.</p> <p>3. A disputed signature, which, if genuine, relates to the issue, may be compared with one admitted to be genuine, the same being already in the case as evidence relating to the issue being tried,</p>

<p>Insolvency—Goods Stopped in Transit—Replevin.</p> <p>1, Where a vendee becomes insolvent while goods sold to him are in transit, the vendor may exercise the right of stoppage in transitu, and regain possession thereof.</p> <p>3. Where goods were sold in such case on credit, the delivery thereof to the carrier for conveyance to the vendee is a delivery to the latter, and the title passes to him.</p> <p>3. The exercise of such right by the vendor does not divest the vendee of his property, but merely changes the possession back to the vendor, leaving title in the vendee and reinstating the vendor in his lien; and having thus obtained possession the vendor has his lien as it would have existed in case of a sale of the specific property on credit, and the occurrence of the insolvency of the vendee before delivery, and the vendor has the right to hold the property until the assignee of the insolvent estate shall pay for it.</p> <p>4. The insolvency of a vendee creates such a presumption against his liability to perform, as to relieve the vendor from taking the initiative of proving an offer to deliver and a demand of payment.</p> <p>5. The question of absolute title is not always involved in a replevin suit. A special interest in the iron involved, entitling plaintiff to its present possession, was sufficient to sustain the action of replevin brought by it,</p> <p>6. This court holds that plaintiff has a lien on the property stopped in transit, and is entitled to have its claim allowed for the full amount.</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. Francis Adams, Judge, presiding.</p>

<p>Railroads—Negligence of—Personal Injuries—Contributory Negligence—Evidence—Hearsay—Instructions.</p> <p>1. The jury in a given ease should not be instructed that they must not disregard the evidence of any “ reliable ” witness.</p> <p>2. In a personal injury case where a death took place through the alleged negligence of another, a witness should not be allowed to testify that deceased informed him not long before the accident and at some distance from the place where it occurred that he was going home by a certain street, tire same not being part of the res gestee.</p>

<p>Injunctions—Taxpayer—Misappropriation of Public Funds—Parties.</p> <p>1. The right of a taxpayer to file a bill to prevent the misappropriation of public funds is unquestionable.</p> <p>2. The president of the. board of county commissioners of Cook Comity, and the treasurer of said county, are necessary parties in a proceeding to prevent, by injunction, the use of county funds in paying the sheriff for the diet of prisoners in the county jail. The sheriff is not a necessary party in such case.</p>

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

<p>Appeal from 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. Theodore Brehtaho, Judge, presiding.</p>

Thank Scales, Judge, presiding. This case was heard by the County Court upon the following stipulation: “ State of Illinois, County of Cook, ss. In the County Court of Cook County. “ In. the matter of the estate of Robert Larkins, insolvent, Perley Lowe, assignee.

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