Volume 50 — Illinois Appellate Court Reports

<p>SEemorandum.—Assumpsit. Plea, failure of consideration. Demurrer to plea sustained. Appeal from the Circuit Court of Rock Island County; the Hon. Georg® W. Pleasants, Judge, presiding. Heard in this court at the December term, 1893, and afHrmed.</p>

Memorandum.—Assumpsit for legal services. Judgment for plaintiff. Appeal from the Circuit Court of Mercer County; the Hon. John G. Glénn, Judge, presiding. Heard in this court at the May term, 1893.

Memorandum.—Assumpsit on promissory note. Pleas: general issue; set-off; breach of warranty; failure of consideration. Judgment for defendant. Appeal from the Circuit Court of DeKalb County; the Hon. Charles Kellum, Judge, presiding. Heard in this court at the May-term, 1893.

'Memorandum.—Suit for recovery of a poll tax. Appeal from the Circuit Court of Whiteside County; the Hon. John D: Crabtree, Judge, presiding. Heard in this court at the May term, 1893,

<p>Menioraitthun. - Motion to set aside a default. Appeal from the Circuit Court of Copk County; the Hon. OLrVER H. HoRToN, Judge, presiding. Heard in this court at the October term, 1892, and a~rmed.</p>

<p>1. Contracts—Mutuality and in Restraint of Trade.—In a contract, the party of the first part agreed to give the party of the second part exclusive control of his coal in Chicago, and the country tributary thereto, till April 1, 1888, and agreed also not to make any future contracts that would interfere with the rights of the party of the second part, and that all sales made by the party of the first part and the party of the second part were subject to mutual agreement. The party of the second part agreed to use his best efforts toward the output of the mines of the party of the first part, and not to handle any other Illinois coal, where the coal of the party of the first part could be sold, until the limit of the production of the mines should have been reached. In construing this contract, it was held, that the party of tire first part was bound, by his contract, to deliver to the party of the second part all the coal of his mines that the party of the second part might be able to dispose of, and such party was bound to use his best efforts to dispose of the whole of it, and that the contract was, valid, and not open to the objection that it was a gambling contract.</p>

<p>Memorandum.—Assumpsit on promissory note. Appeal from the Superior Court .of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1892.</p>

<p>Memorandum.—Creditor’s bill. Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding. Heard in this court at the October term, 1892.</p>

Memorandum.—Action in case for deceit. Appeal from the Superior Court of Cook County; the Hon. George H. Kettelle, Judge, presiding. Heard in this court at the October term, 1892, and affirmed.

<p>1. Fines and Penalties—Power to Inflict—The law will not permit the taking of one man’s property by fine, or otherwise, by a mere statement that some other man has announced that a fine had been imposed.</p> <p>2. Set-ore—An Affirmative Defense.— The defense of set-off is an affirmative one, and a party seeking to establish it must do so by competent evidence.</p>

<p>1. Eminent Domain—Deposits in Condemnation Proceedings—Possession of Land upon Deposits Made.—Pending an appeal by the defendant in a condemnation proceeding, the appellee, a railroad company (a stranger to the suit), under the order of court that the plaintiff might make a deposit and take possession of the premises, made the deposit itself and took possession. The judgment of condemnation was reversed, but the cause was not remanded. In the meantime, the plaintiff in the condemnation proceedings obtained the possession of a lease of the premises, which had been made by the defendant to a third person and by him assigned in blank, and took possession of the premises under it. Upon a motion by the railroad company to withdraw its deposit, it was held that as tire defendant was not himself entitled to the possession of the premises, having leased them, the railroad company might withdraw its deposit without restoring to him the possession of the premises obtained under the order of court.</p>

<p>1. Wills—Expert Testimony, ete.—Mental Capacity.—Persons who are not experts, but who have had opportunities to observe a person, may give their opinion of his mental capacity, stating at the same time, their reasons and the facts observed on which they base their opinions,' including conversations with the person, but not conversations with others.</p> <p>2. Costs ■ in Equity—Guardian ad Litem Fees.—In a contest of a will in chancery, a guardian ad litem was appointed for an infant defendant at the instance of the complainant, and the court directed him. to make a proper defense, and to employ solicitors, and having done so, the court ordered the executor of the will to pay his solicitors §2,770.71, for their services and disbursements, to experts engaged by him the sum of §450, and to the guardian the sum of $25, and that all of such amounts be taxed against the complainant as a part of the costs of suit. This, it is claimed, was in pursuance of Sec. 6, Ch. 22, R. S. It was held, that the statute contemplates the taxation only, of the guardian’s charges, as costs against the complainant. That the order allowing the guardian ad litem, his charges of $25, was proper, but the order directing the taxation of the other sums as costs against complainant to be paid by the executor was not.</p>

<p>Memorandum.—Petition for mandamus. Error to the Circuit Court of Cook County; the Hon. Samuel McConnell, Judge, presiding. Heard in this court at the October term, 1893, and ¡dismissed.</p>

Memorándum,—Replevin. Summons issued February 34,1890. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, A. D. 1893, and affirmed.

<p>1. Contracts—Par ol, for the Purchase of Real Estate—Recovery of Deposit.—Where a person entered into a parol contract to buy certain real estate, and deposited $100 as earnest money, it was held, that he could not recover the same back unless he was willing to consummate the bargain made, and the other party unwilling.</p>

Memorandum.—Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, A. D. 1892, and affirmed.

<p>Memorandum.—Assumpsit on a beneficiary certificate. Appeal from the Superior Court of Cook County; the Hon. Theodore Bbentano, Judge, presiding. Heard in,this court at the October term, 1892.</p>

Memorandum.—Prosecution for violating an ordinance. Appeal from the'Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1898, and affirmed.

<p>1. Real Estate Brokerage—Agent’s Commission.—Some real estate brokers were engaged in negotiating a sale of a house from H. to K. H. wanted more ground and called upon D., who owned ground adjoining the house, to buy it, telling him that the business came through a real estate man, and if the sale were made it would be through him and he wanted a commission; to which D. laughingly replied, “ They all want commission.” H. was not an agent of the brokers to make any contract between them and D., and the brokers had no connection with the sale by D. to K. It was held, that the brokers had no claim uponD. for commission.</p>

<p>Memorandum.—Assmnpsit. Appeal from the Superior Court of Cook County; the Hon. George H. Kettelle, Judge, presiding. Heard in this court at the October term, 1892.</p>

<p>1. Contracts—Repudiation, ete.—The fact that a party to a contract changes his mind and declines to execute it does not discharge him. from its obligations.</p>

Memorandum.—Action in case for personal injuries, commenced December 6,1889. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1892, and affirmed.

<p>Memorandum.—Assumpsit. Summons issued June 33, 1891. Error to the Superior Court of Cook County; the Hon. Elliot Anthony, Juclge, presiding. Heard in this court at the October term, A. D. 1893.</p>

Memorandum.—Action on the case for personal injuries, commenced November 20, 1889. Plea not guilty. Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Heard in this court at the October term, 1892, and affirmed.

<p>1. Receiver.—Mortgagee in Possession.—However litigious a mortgagee in possession may be, so long as anything is due him, the possession can not betaken from him and given to a receiver.</p>

Memorandum.—Assumpsit. Plea of the general issue and affidavit of merits. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, A. D. 1892.

Memorandum.—Bill to foreclose a trust deed. Bill filed July 8, 1891. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1892, and affirmed.

Memorandum.—Suit for separate maintenance. Appeal from an order for temporary alimony entered by the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, A. D. 1892, and affirmed.

Memorandum.—Suit for separate maintenance. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1898, and affirmed.

<p>1. Husband and Wife—Family Expenses.—Upon a bill to subject a wife’s separate property to the payment of a judgment for family expenses, to show that the indebtedness was in fact for a family expense the declaration in the suit in which the' judgment was recorded was put in evidence; it contained counts for goods sold which were therein alleged to be for “ expenses of the family; ” it also contained the common consolidated count for money lent, money paid, money had and received, interest, work, labor and material, and the further count upon an account stated; these counts contained no reference to “ expenses of the family.” There was no proof upon which count, or upon what cause of action, the judgment was obtained. It was held, that it was consistent with all the record, that the judgment was for money lent to the appellant, after the act of 1874 had removed all the common law disabilities to borrow and bind herself and her property, past, present and future.</p> <p>2. Appellate Proceedings—Party Can Not Make a Record for the Court to Act upon.—The answer of a party to a bill alleged that the judgment to enforce which the bill was filed was recovered upon a debt for “ expenses of the family.” Upon appeal in the Appellate Court the same party stated in a brief that the indebtedness was for expenses of the family. It was held,, that the answer was not evidence and that the parties could not directly or indirectly make a record for the Appellate Court to act upon.</p>

Memorandum.—Action of debt on a bond. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1892, and affirmed.

<p>Memorandum,—Assumpsit. Appeal from the Circuit Court of Cook County, the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1892, and affirmed.</p>

Memorandum.—Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1892.

<p>Memorandum.—Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1892.</p>

<p>Memorandum.—Petition for mechanic’s lien. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuuey, Judge, presiding. Heard in this court at the October term, 1893.</p>

2. Memorandum.—Assumpsit for services. Summons dated May 17, 1891. Declaration on the common counts. Plea, general issue and affidavit of merits. Judgment for plaintiff. Appeal from, the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding. Heard in this court at the October term, A. D. 1892.

<p>1. Contracts—Time of Performance.—Where a contract is silent as to the time in which it is to be performed the law will imply that it is to be performed within a reasonable time.</p> <p>2. Neglect of Duty—What is Unreasonable.—What is an unreasonable neglect of duty may depend upon the circumstances of each particular case.</p>

<p>1. Associations foe Investment—Application of the Principles— Joint Tenancy—Legality.—An investment association which applies the principle of joint tenancy to the investments by the subscribers, the survivorship depending upon default of the members, instead of death, is neither prohibited by statute nor common law.</p> <p>2. Associations fob Investment—The Default Theory.—An investment association in which the theory on which profit is promised, is that of all of the subscribers, a large portion, one-half or more, will fail to keep up then monthly dues, and whatever money they may have paid will go into the hands of those who do not so fail, is not prohibited by law.</p> <p>3. Associations fob Investment—Sufficiency of a Bill for a Deceiver. —A bill filed by thirteen plaintiffs “ on behalf of themselves and all other bondholders ” in which all that is averred as to the interest of the plaintiffs, is that they are subscribers and holders of bonds of various denominations issuéd by the association, is insufficient, and an order appointing a receiver under such a bill will be reversed.</p>

Memorandum.—Action of assumpsit for commissions, commenced May 11, 1887. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1892.

Memorandum.—Charge of keeping a gaming house. Appeal from the Criminal Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1892, and affirmed.

<p>1. Interpleader—Rights of Creditors.—November 3,1887, the Ohio and Western Coal and Iron Company, a corporation existing under the laws of New York, and the firm of Glidden & Curtis, of Boston, Mass., made an assignment by which the firm was to sell, or supervise and con. trol all sales of said company’s articles and products, to furnish advances according to its needs to such extent as they should consider themselves safely secure, at current rates of interest and exchange, to render accounts of sales monthly to said corporation, and charge their commissions, etc. All articles and products of the said corporation were to be consigned to said firm. The contract was to continue in force for five years, from the thirty-first day of October, 1887. Afterward Glidden & Curtis became insolvent and made an assignment to A. D. Bell et al.; previous to this the firm had sold, on credit, to the Pullman Company, products of the Coal and Iron Company to the amount of $30,000. February 8, 1889, the First National Bank of Columbus, Ohio, first learned of the assignment of Glidden & Curtis. It held notes of the Coal and Iron Company to the amount of $30,000, indorsed by Glidden & Curtis, coming due on the 9th and 11th. On the next day, the 9th, it procured an order from the Coal and Iron Company, áigned by its assistant treasurer, on the Pullman Company, for the payment to its order of the sum of $30,000. Neither the bank nor the Pullman Company had any notice of the relations existing between Glidden & Curtis and the Coal and Iron Company. On the 9th day of February, 1889, the Coal and Iron Company at New York made an assignment to James A. Hall of Columbus, Ohio. The bank, under the order, and the attaching creditors of the Coal and Iron Company, all claimed the money of the Pullman Company, and it filed its bill of interpleader. It was held, that the bank was entitled to be first paid out of the fund.</p>

Memorandum.-—Assumpsit upon a promissory note. Plea of the general issue. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, A. D. 1893, and affirmed.

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by the defendant. Heard in this court at the March term, A. D. 1893, and affirmed.

<p>1. Practice—Appellate Courts—Bills of Exceptions.—It is well settled law, that a court of appellate jurisdiction can not look outside of the bill of exceptions to learn what took place in the court below. It is not enough that the record certified to by the clerk contains the instructions, etc., sought to be availed of. Such matters must be embodied in the bill of exceptions.</p>

<p>1. Garnishment— What May Be Beached by.—It is only the defendant’s property and credits which can be reached by the process of garnishment, not the property and credits which he holds in trust for others.</p> <p>2. Garnishment— What May Be Beached by—Application of the Law. —J. recovered a judgment against W. F. H., upon which execution being returned unsatisfied, process of garnishment was issued against a bank. In its answer the bank admitted an indebtedness. J. V. H. filed a bill of interpleader claiming that the money in the bank belonged to him, the said W. F. H. being in all transactions relating thereto, his agent. To this interpleader a demurrer was sustained, and the said J. V. H. abided by his plea. It was held, that the garnishing creditor could acquire no greater rights against the garnishee than the defendant, W. F. H. had, and that as soon as J. V. H., the principal, appeared and claimed his money, the right of the bank to discharge its obligation by a payment to his agent, ceased.</p> <p>3. Agency—Agents Doing Business in Their Own Names.—It has,from time immemorial, been to some extent customary for agents to do, in their own names, the business of principals; in such case the principal, when discovered, may be sued and held as such, or he may voluntarily come forward and claim the benefit of the contracts made and the business done by the agent.</p> <p>4. Agency—Doing Business in Agent's Name—An Exception to the Buie.—The seeming exception to the rule above stated, existing in the case of a husband investing and using, with her consent, the money of his wife as his own and in his name, is based upon the marital relation and the presumptions as to ownership that flow therefrom.</p>

<p>Memorandum.—Action of trespass. In the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Declaration for false imprisonment; plea of not guilty; trial by jury; verdict and .judgment for plaintiff; appeal by defendant. Heard in this court at the March term. A. D. 1893.</p>

Memorandum.—Chancery proceedings. In the Circuit Court of Cook County. Intervening petition; answer; trial by the court; petition dismissed; appeal by petitioner. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Declaration on an insurance policy; pleas, general issue and special pleas under conditions of the policy; trial by jury; verdict and judgment for the plaintiff; defendant appeals. Heard in this court at the March term, 1893, and affirmed.

<p>1, Technicalities—Certainty, ete.—A technical answer is good to a technical objection. Saying that a motion was made for a certain reason is no statement that the reason existed. All ambiguities and uncertainties in a bill of exceptions are at the risk of the person preparing it.</p>

Memorandum.—Action of assumpsit. In'the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Declaration, special and common counts; plea, general issue; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1893.

<p>1. Mechanics’ Lien—Subcontractor of a Subcontractor.—O’Shea made a contract with Vandermark to erect a block of brick houses. The title of the premises was in Vandermark’s wife. Before the work was begun O’Shea and one Roche agreed that as between themselves, as to the mason work, they would be equal partners. The Knickerbocker Ice Company sold them the bricks and not having been paid, filed its petition for a hen on the premises, having served upon Vandermark’s wife the notice required by section 30, chapter 83 R. S., entitled “ Liens.” It was held that O’Shea and Roche were themselves in no sense sub-contractors so that the Knickerbocker Company would be deprived of its liens by reason of its being a sub-contractor of a sub-contractor.</p>

<p>1. Mechanics’ Lien—Filing Statement.—-A compliance with Sec. 4 of Oh. 83, R. S., entitled “ Liens ” providing for the filing of a statement with the circuit clerk is not material, so far as the owner, who is the principal debtor, is concerned. That statement is only for the purpose of giving notice to third persons. Sec. 4 must be read in connection with Sec. 38 of the same chapter for the purpose of determining the persons to be affected thereby.</p> <p>3. Mechanics’ Lien—Limitation Clauses.—The limitation clause of the mechanics’ lien statute has no application as between the mechanic or material-man and the principal debtor. The limitation is for the benefit of the creditors, and not for the benefit of the debtor.</p> <p>3. Mechanics’ Liens—-Not Dependent on See. 4.—The lien itself is not dependent upon Sec. 4, but is given by other sections of the lien law. ' It is only when the lien comes to be enforced as against the interests of other creditors, incumbrancers or purchasers, that the filing of the,statement becomes a prerequisite.</p> <p>4. Mechanics’ Lien—Sufficiency of Statement.—It is not necessary to determine the sufficiency of the statement as against creditors, incumbrancers, or purchasers, until it appears that there are such tim’d persons having an interest in the premises. Unless there are such persons the imperfections of the statement, no matter how serious to them, can not be invoked in their behalf until their interest is m'ade to appear". The principal debtor can not, for his protection, invoke a defense which is peculiar to them; and though when invoked by such third persons such defense may prevail to their protection, the principal debtor will not thereby alone be protected from an enforcement of whatever lien, if any, may be found against him.</p>

Memorandum.—Creditor’s bill. In the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Trial by the court and dismissal for want of equity; appeal by complainant. Heard in this court at the March term, 1893.

Memorandum.—Mechanics’ lien proceedings. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the March term, A. D. 1893, and affirmed.

<p>1. Practice in Appellate Court—Incomplete Records.—A certificate of a clerk to the transcript of the record stated that it was “ a true, perfect and complete transcript of the record as pexprcecipe for record filed,” and was followed by many pages which are entitled exhibits, but not certified to at all. It was held, that upon such a certificate the cause can not be reviewed.</p>

Memorandum. — Assumpsit for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action of assumpsit on appeal from justice’s court. In the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Judgment fpr plaintiff; defendant appeals. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action of assumpsit upon a building contract. Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Declaration on the common counts; plea, general issue; trial by the court; judgment for plaintiff; appeal by the defendant. Heard in this court at the March term, 1893. Reversed and remanded.

Memorandum.—Action of assumpsit. In the Circuit Court of Cook County; the Hon. Samuel McConnell, Judge, presiding. Judgment for defendant on demurrer to the declaration; plaintiff appeals. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action in the Circuit Court of Cook County; the Hon. Samuel McConnell, Judge, presiding. Declaration for work, etc.; plea of general issue; trial by jury; verdict and judgment for plaintiffs; defendants .appeal. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action of trespass in the Superior Court of Cook County; the Hon. George H. Kettelle, Judge, presiding. Declaration for assault and battery; plea of not guilty and self-defense; trial by jury; verdict and judgment for plaintiff; defendant brings the case here upon a writ of error. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action of assumpsit. In the Circuit Court of Cook County; the Hon. Samuel McConnell, Judge, presiding. Declaration for a breach of warranty; plea, general issue; trial by jury; verdict and judgment for defendant; appeal by plaintiffs. Heard in this court at the March term, 1893.

Memorandum.—Suit for mechanics’lien. In the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Decree for defendants on intervening petitions; complainant brings the record here upon a writ of error. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action to recover for personal injuries. In the Circuit Court of Winnebago County; the Hon. Jambs H. Cartwright, Judge, presiding. Declaration incase; plea of not guilty; trial by jury; verdict and judgment for plaintiff. Defendant appeals. Heard in this court at the March term, 1893.

Memorandum.—Action to recover damages for the death of a wife resulting from a surgical operation. In the Circuit Court of Coolr County; the Hon. Richard S. Tüthill, Judge, presiding. Judgment for defendant on demurrer to the declaration; plaintiff brings the record here upon a writ of error. Heard in this court at the March term, 1893.

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Declaration in case. Plea, not guilty; trial by the court; judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1898, and affirmed.

Memorandum.—Action for a nuisance. In the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Declaration in case for a nuisance; plea, not guilty; trial by jury; verdict and judgment for the plaintiff; appeal by the defendant. Heard in this com! at the March term, 1893, and affirmed.

Memorandum.—Order overruling a motion for a continuance. Appeal from the Superior Court of Cook County; the Hon. George F. Sugg, Judge, presiding. Heard in this court at the March term, 1893, and affirmed.

<p>• 1. Appeals—Justice's Court—Filing of Transcripts.—The taking of an appeal from a justice’s judgment within the twenty days allowed for that purpose does not have the effect of vacating the judgment in the Circuit Court, perfected by the filing of the justice’s transcript in the office of the clerk of said court prior to the'taking of said appeal.</p> <p>2. Appeals .from Justice’s Court—After Transcript in the Circuit Court—Effect upon the Judgment—Illustration.—D. recovered judgment against C. before a justice of the peace. He immediately swore out an execution which was returned unsatisfied. Thereupon at his request the justice certified to the clerk of the Circuit Court a transcript of the judgment and the same was filed and recorded pursuant to Sec. 95, Chap. 79, R. S, Within the twenty days from the rendition of the judgment, 0. perfected an appeal to the Circuit Court; a writ of supersedeas was issued and served upon the justice. While the appeal was pending 0. filed his bill in chancery and upon these facts asked that the judgment be set aside and vacated. It was held, that the judgment was not, by reason of said appeal, vacated or annulled, and neither was the lien created by filing the transcript in the clerk’s office, abrogated, or in any way interfered with. The execution of the lien was stayed, but the lien itself was not destroyed. It remained as effectual in every respect except as to proceedings to enforce it, as it was before the bond was filed and the appeal perfected. The appeal operated to stay proceedings merely, and not to vacate anything which before had been done.</p> <p>3. Judgments—Filing Transcript from Justice’s Court in.the Circuit Clerk's Office.—'The fact that the transcript of the justice’s judgment is filed in the office of the circuit clerk within twenty days allowed by the statute for an appeal, and before the appeal is in fact taken, does not alter the effect of the statute in making the judgment a lien upon real estate after such transcript has been filed.</p> <p>4. Judgments—Liens upon Real Estate—Effect of Taking an Appeal.—The real estate of the defendant in a judgment before a justice of the peace is bound from the date of filing the transcript in the office of the circuit clerk. The time of making and filing the transcript is limited only by the precedent fact of the return of the execution unsatisfied.</p> <p>5. Justice’s Court—Effect of Issue before the Expiration of the Time for the Appeal.—The effect of the execution issued either before or after the expiration of the twenty days allowed for the appeal is the same except that where issued before, no sale of property thereunder can take place within the twenty days of the date of the judgment.</p>

Hemorandnm.—Bill for injunction. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Suit for separate maintenance. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action in case for personal injuries. Plea, not guilty; judgment for plaintiff. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action of assumpsit. Declaration on a promissory note. Plea of general issue with notice, etc. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action of assumpsit. Declaration for goods sold and delivered; common counts with affidavit; plea of general issue with affidavit of merits. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1893.

Memoran ¿him.—Creditor’s bill. Order appointing a receiver. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the March term, A. D. 1893, and. affirmed.

<p>1. Injunction—Performance of Contracts.—Specific performance of a contract for personal services is not enforcible by injunction, nor of a contract which has been violated by complainant, and in the performance of which neither readiness, ability nor willingness is averred or shown.</p>

Memorandum.—Action of debt upon receiver’s bond. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge; presiding. Heard in this court at the March term, 1893, and affirmed.

<p>Memorandum.—Garnishee process. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1893.</p>

Memorandum.—Proceedings under the assignment act. In the County Court of Cook County; the Hon. George W. Brown, Judge, presiding. Petition to have a transfer by bill of sale declared to he a general assignment for the benefit of creditors. Answer filed; trial by the court on report of master; decree for petitioners; defendants appeal. Heard at the March term, 1893, of this court. Reversed and remanded.

<p>1. Negotiable Instruments.—The following instrument is not negotiable:</p> <p>“ $250. Chicago, July 1,1892.</p> <p>To A. Olson : This is to certify that L. L. Engstrom, contractor for the carpenter work of your house, is entitled to a payment of two hundred and fifty dollars, by the terms of the contract. This certificate is issued upon an application and affidavit, dated-. —, 18—, and is made in accordance with the provisions of Sec. 35 of the law relating to subcontractors’ liens, in force July, 1887.</p> <p>Contract price. .................................... $3,590</p> <p>Extra work.................................... 3,460</p> <p>Balance.. ..................$ 130</p> <p>Carl M, Almquist,</p> <p>Superintendent.”</p>

<p>1. Practice—Bills of Exceptions.—The statute contemplates that an exception to an act of the court is to be made a part of the record simultaneously with the act excepted to, and it should appear on the face of the record as having been done so; but in our practice such simultaneousness is impossible, and the appearance of it on the face of the bill is a fiction, not essential to the validity of the bill.</p> <p>2. Evidence—Abuse and Vituperation Inadmissible.—The admission of evidence which is merely abuse and not narrative is error.</p>

<p>1. Practice in Appellate Court—Defective Record.—Acquiescence in a defective record by an appellee can not be regarded by the court, for the parties can not, by direct stipulation, make or change a record.</p> <p>2. Practice in Appellate Court— Clerk's Certificate.—A. certificate of the clerk that he copies all of the record relating to a particular subject or controversy can not be regarded by the Appellate Court, for the law has not left it to the clerk’s judgment what part of the record is material.</p> <p>3. Records—Clerk's Certificate.—The clerk can not certify that an appeal bond was filed, he must copy it. It is not for the clerk, but for the Appellate Court, to determine whether the bond complies with the orders allowing the appeal.</p>

<p>1. Practice isr Appellate Court—Abstracts,—Where the appellant does not include in his abstract either the affidavit ol* the instructions complained of, the court is not bound to consider either.</p> <p>2. Abstracts—Index,—An index is not an abstract.</p>

<p>1. Practice^on Appeals—Defective Bond—Waiver.—Where the appellant filed a defective appeal bond, a stipulation was signed and filed by the parties giving appellee ten days further time in which to file his briefs. It was held that the stipulation was a waiver of the irregularity of the bond.</p> <p>2. Assignment for the Benefit of Creditors—Possession of Assignee.—After the property of the person making an assignment for the benefit of creditors goes into the possession of the assignee it can not be taken from his possession, with or without process, without the order of the County Court, but in the hands of the assignee, such property is subject to the same liens as when in the hands of the insolvents.</p> <p>3. Checks—Delivery to Payee—Assignment.—A check, from its delivery by the drawer to the payee, is an assignment of so much of the drawer’s money in the bank as is named in the check.</p> <p>4. Checks—Competing Cheeks—Priority of Payment.—As between competing checks, where the drawer has not money enough in the bank to pay all, the banker pays the one first presented.</p> <p>5. Checks—Partial Assignments.—Checks are an exception to the old rule that partial assignments of a fund are invalid. And the old rule no longer applies in equity.</p>

Memorandum—Suit in chancery. In the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Bill for the specific performance of a contract; answer; decree of dismissal on final hearing for want of equity; appeal by complainants. Heard in this court at the March term, 1893, and reversed with directions.

Memorandum.—Suit in chancery. In the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Bill for an injunction ; answer and replication. Decree dismissing the bill on final hearing; appeal by the complainant. Heard in this court at the March term, A. D. 1893, and affirmed.

’ Memorandum.—Action of assumpsit in the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Declaration in assumpsit; pleas, general issue and set-off; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, A. D. 1893.

Memorandum.—Action of negligence in the Superior Court of Cook County; the Hon. George H. Kettelle, Judge, presiding. Declaration in case; plea of not guilty; trial and judgment for plaintiff; defendant appeals. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Assumpsit upon a written contract. Pleas of the general issue and statute of limitations with general replication. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, A. D. 1893.

<p>1. Lunatics—Action against a Conservator.—An action will not lie against a conservator of an insane person for a debt of the latter contracted before the appointment of the conservator.</p>

<p>Memorandum.—Bill for injunction. Appeal from the Superior Court of Cook’County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1893.</p>

Memorandum.—Assumpsit, in the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Declaration in assumpsit, for breach of contract. Pleas, general issue and set-off; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Petition for an order directing a receiver to restore goods alleged to have been obtained by fraud. Relief denied. Error to the Superior Court of Cook County; the Hon. George H. Kettelle, Judge, presiding. Heard in this court at the March term, A. D. 1893, and affirmed.

<p>1. Negligence—Contribvtory Negligence.—Where the negligence of the plaintiff contributes materially to the injury there can be no recovery for an injury caused by the mere negligence of a defendant.</p>

Memorandum.—Attachment and garnishee proceedings. Commenced August 5, 1889. In the Superior Court of Cook County ; the Hon. Theo-. dore Brbntano, Judge, presiding. Petition of intervening claimants of the fund in dispute; answer; trial by jury; verdict and judgment against intervenors ; appeal. Heard in this court at the March term, 1893.

Memorandum.—Assumpsit: In the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Scire facias to make parties to a judgment; plea, general issue; finding for plaintiff; defendant appeals. Heard in this court at the March term, 1893, and affirmed.

<p>Memorandum.—In chancery. In the Circuit Court of Cook County. Appeal from an order appointing a receiver. Heard in this court at the March term, A. D. 1893.</p>

Memorandum.—Divorce. In the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding. Bill for divorce; answer and replication; cross-bill, answer and replication; decree for complainant; error by defendant. Heard in this court at the March term, 1893, and affirmed in part and reversed in part.

Memorandum.—-Distress for rent. In the Circuit Court of Cook County; the Hon. Thomas G.'Windes, Judge, presiding. Judgment for landlord; appeal by tenant. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Forcible detainer. In the Circuit Court of Cook County; the Hon. Richard W: Clifford, Judge, presiding. Writ of error and motion for supersedeas. Heard in this court at the March term A. D. 1893.

Memorandum.—In chancery. In the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Bill to foreclose a trust deed, dismissed upon hearing for want of equity. Appeal by complainants. Heard in this court at the March term, A D. 1893, and affirmed.

Memorandum.—Action in assumpsit. In the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Declaration on certificate of membership in accident company; plea, general issue; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1893.

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Common counts and plea of general issue; trial by jury; verdict and judgment for plaintiffs. Error by the defendant. Heard in this court at the March term, A. D. 1893, and affirmed.

<p>1. Judgment—Form.—The following: “ Whereupon it is considered by this court have and recover of said defendant the sum of, ” etc., is no judgment, not being for or in favor of anybody.</p> <p>2. . Jurisdiction—Appeals.—An appeal from a void judgment of a justice’s court to the Circuit Court, gives the latter jurisdiction to try the case de novo.</p> <p>3. Appeals—Damages on Dismissal.—An appeal having been taken from a void judgment rendered by a justice of the peace to the Circuit Court, it was held that the latter court might dismiss either the appeal or the suit for good cause; but in dismissing the appeal the court could not award damages under Sec. 71, Ch. 79, R. S., upon the amount of the judgment before the justice, as there was no judgment in legal effect.</p>

Memorandum.—Chancery proceedings. In the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding. Bill to off-set expenses for repairs upon leasehold property against the rents; hearing and decree for defendants; appeal by complainants. Heard in this court at the March term, A. D. 1893, and affirmed.

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Declaration, special count on check with common counts; plea, general issue; affidavit of merits; trial by jury; verdict and judgment for defendant; plaintiff appeals. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, A. D. 1893, and affirmed.

Memorandum.—Case. In the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Declaration; plea, not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, A. D. 1893.

<p>Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Declaration for work and labor; plea, general issue, affidavits of merit; trial by jury; verdict and judgment for plaintiff; defendant appeals. Heard in this court at the March term, 1893, and affirmed.</p>

<p>1. Mechanics’ Lien—Description of the Premises.—The statute requiring that the premises to be charged with the lien shall be correctly described, does not mean that they shall be described with all the minuteness and exactness that might be employed by an expext conveyancer. A description that so identifies the premises sought to be charged as to render then location susceptible of ready ascertaiixment from the description itself, is sufficient.</p> <p>2. Mechanics’ Lien—Description of Premises— Variance. —A variance between the two descriptions consisted in the omission of one of the letters ' ‘n” from the word Downing, so as to make it read ‘ ‘ Dowing, ” "and of the words describing the part of section 23 in which the particular addition referred to is located, and of the number of the meridian. It was held that the omission of the letter ‘ "n” from the word Downing, making it read “ Dowing,” however material under different conditions, is not material here.</p> <p>3. Courts—Judicial Notice.—The court will take notice of the gov-eminent surveys, and of the fact that all the land in Cook County lies east of the third principal meridian, so that when range thirteen east is mentioned, the court will supply the ellipsis.</p> <p>4. Mechanics’ Lien—Verification of the Statement.—A statement for a mechanics’ hen was in the form of an affidavit, and stated that the exhibit attached was a just and true statement of the account due for lumber furnished, at the times in said statement mentioned, etc., and it appeared that the attached exhibit contained every particular, of kind," quality, size, price, and time of delivery of the materials, mentioned in exact detail. It was held that the affidavit and the exhibit clearly amounted to a statement, verified by affidavit, within contemplation of the statute.</p>

Memorandum.—Assumpsit. In the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Demurrer to replication; appeal by defendant. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Assumpsit. In the Superior Court of Cook County. Declaration and pleas of general issue and set-off; trial by court; finding and judgment for plaintiff; appeal by plaintiff. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Mechanics’ lien. In the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Petition for a lien; decree pro confesso; appeal by defendants. Heard in tins court at the March term, 1893, and affirmed.

Memorandum.—Chancery proceedings. In the Circuit Court of Cook County: the Hon. Lorin C. Collins, Judge, presiding. Bill by vendors of specific performance of a contract; answer; trial upon master’s report; bill dismissed; appeal by complainant. Heard in this court at the March term, A. D. 1898, and affirmed.

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, A. D. 1893, and affirmed.

Memorandum.—Case.' In the Circuit Court of Cook County; the Hon. Richard S. Tdthill, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heai-d in this court at the March term, 1893.

Memorandum.—In chancery. In the Circuit Court of Cook Comity. Appeal from a decree, etc. Heard in this court at the March term, A. D. 1893. Reversed in part and affirmed in part.

Memorandum.—Assignment for the benefit of creditors: In the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Allowance of claims; appeal by claimants. Heard in this court at the March term, 1893.

Memorandum.-—Mechanics’ lien. In the Circuit Court of Cook County; the Hon. Lobin C. Collins, Judge, presiding. Petition for lien; judgment for defendant, on demurrer; appeal by petitioner. Heard in this court at the March term, A. D. 1893, and affirmed.

Memorandum.—Case. In the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Declaration; plea not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1893.

Memorandum.—Mechanics’ lien. In the Circuit Court of Cook County; the Hon. LorinC. Collins, Judge, presiding. Petition for mechanics’ lien; judgment on demurrer; petition dismissed; appeal by petitioner. Heard in this court at the March term, A. B. 1898.

Memorandum.—Case. In the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1-893.

Memorandum.—Assumpsit. In the Superior Court of Cook County; the Hon. George H. Kettelle, Judge, presiding. Declaration and plea of general issue; trial by court and finding for plaintiff; defendant appeals. Heard in this court at the March term, 1893.

Memorandum.—Assumpsit. In the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Appeal from justice’s court; trial by jury; verdict and judgment for plaintiff; defendant appeals. Heard in this court at the March term, 1898, and affirmed.

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Commencement of suit September 13, 1890; declaration, common counts for work and materials and for interest; plea, general issue, non-assumpsit as to a portion of the demand in the declaration mentioned and tender of the amount excepted; set-off; trial by jury; verdict for plaintiff for the amount excepted in the second plea and judgment; appeal by plaintiffs.

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Declaration on promissory note; pleas, general issue, etc.; trial bv court; judgment for defendant; appeal by plaintiff. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Chancery proceedings. In the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding. Bill for specific performance; answer and replication; trial and decree for defendant; appeal by complainant. Heard in this court at the March term, 1898, and affirmed.

Memorandum.—Specific performance. In the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding. Bill and answer; trial on master’s report; decree for complainants; defendants appeal. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Separate maintenance. In the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Bill of separate maintenance; answer and replication; hearing and decree for complainant; appeal by defendant. Heard in this court at the March term, 1893.

Memorandum.—Attachment for contempt. In the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Appeal from an order adjudging appellant guilty of contempt. Heard in this court at the March term, A. D. 1898.

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Thomas <3. Windes, judge, presiding. Heard in this court at the March term, 1893.</p>

Mem oran (Inin.—In chancery. In the Circuit Court of Cook County; the Hon. Lorin C. Collins, Jr., Judge, presiding. Appeal from, an order assessing damages upon the dissolution of an injunction. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Appeal from Justice’s Court. In the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Appeal from an order dismissing an appeal. Heard in this court at tire March term, 1893, and affirmed.

Memorandum.—Assumpsit. In the Superior Court of Cook County; the Hon. Jambs Goggin, Judge, presiding. Appeal from justice’s court; trial by jury ; verdict and judgment for plaintiff ; appeal by defendant. Heard in this court at the March term, 1893, and affirmed.

1~IcBloranthnn- Case. In the Circuit Court of Cook County; the Hon~ SAMUEL MCCONNELL, Judge, presiding. Judgment by default; error by th~ defendant. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Interpleader. In the Circuit Court of Cook County. Bill of interpleader and for injunction; the Hon. Philip Stein, Judge, presiding. Appeal by interpleading creditors from an order granting an injunction. Heard in this court at the March term, 1893.

Memorandum.—In chancery. In the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Appeal by complainant, from a decree dismissing his bill for want of equity. Heard in this court at the March term, A. D. 1893, and affirmed.

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Charles R. Starr, Judge, presiding. Appeal from justice’s court; trial by jury; verdict and judgment for appellant; appeal to this court by defendant. Heard at the March term, 1893, and affirmed.

Memorandum.-—Covenant. In the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Declaration in covenant; demurrer to declaration overruled; judgment for plaintiff; appeal by-defendant. Heard in this court at the March term, A. D. 1893.

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Richard Wi Cuffokd, Judge, presiding. Common counts; plea of release; trial by court; judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1893, and affirmed.

Memorandum.—Appeal from justice’s court. In the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Appeal from an order dismissing the suit. Heard in this court at the March term, 1893. and affirmed.

<p>1. Creditor’s Bill—When it lies. —In order to obtain a footing for a creditor’s bill in a court of equity, it must appear that the creditor has exhausted his legal remedies by obtaining judgment, suing out execution, having the sheriff make proper efforts to collect the judgment by that means, and such efforts proving unavailing, by having him return the execution unsatisfied.</p> <p>2. Creditor’s Bill.—Legal Prerequisites.—A creditor who seeks by his bill to reach an equitable estate of his deb,tor, which can not be reached by law, must first recover judgment at law, and have execution returned unsatisfied, to give jurisdiction to equity.</p> <p>3. Creditor’s Bill.—Exhausting the Remedy at Law.—There is no method of ascertaining that the creditor’s legal remedy has been exhausted except by a return of an execution nulla bona. Such a return becomes a matter of record, and shows prima facie, that the creditor has exhausted his legal remedy, and an opportunity for the interposition of a court of chancery thereupon arises.</p> <p>4. Creditor’s Bill.—Sheriff’s Duty on Execution.—When an execution has been issued, the sheriff has ninety days from its date in which to find property to levy upon, and generally it is his duty to hold the writ during all that time; but he may take the responsibility of making an earlier return to it of nulla bona, especially after he has made a personal demand upon the defendant to turn out property, which he has refused to do.</p> <p>5. Creditor’s Bill.—The Return of the Sheriff Must Be upon His Own Responsibility.—The law requires no more as a precedent to jurisdiction in chancery than a return by the sheriff of an execution nidia bona, but the return must be made upon the responsibility of the sheriff; it must be the act of the sheriff on his own responsibility, and not by direction of the plaintiff in the writ.</p> <p>6. Execution—Subject to the Creditor’s Control.—An execution is the process of the judgment creditor, and is subject to his control, and the sheriff is subject to his instructions in regard to it.</p>

Memorandum.—In chancery. In the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Bill to reform an injunction bond; dismissed for want of equity; appeal by complainants. Heard in this court at the March term, 1893, and affirmed.

<p>1. Questions of Fact—Conflicting Evidence.—A verdict rendered upon conflicting evidence will not for that reason alone be set aside.</p> <p>2. Attorneys—Use of Obstreperous Language Ground for New Trial.—The fact that an attorney used obstreperous language on the trial of a cause, the import of which was that his client was poor, a matter which the evidence during the trial had made probable, is not a sufficient ground for disturbing a verdict.</p>

Memorandum.—Assignment for the benefit of creditors. Appeal from the County Court of Cook County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the October term, 1893. Reversed and remanded with directions.

<p>Memorandum.—Assumpsit on a promissory note. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1893, and affirmed.</p>

Memorandum.—Action on a subscription for stock. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in tins court at the October term, 1893, and reversed.

<p>1. Continuance—Inability of Attorney to Attend Trial.—An affidavit by the attorney in a suit for a continuance on the ground that he was unable to try the cause or attend upon the court by reason of sickness was held insufficient because it did not appear when the attorney would be able to try the cause and that there had been ample time to employ another attorney.</p>

<p>Memorandum.—Probate of will. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1893.</p>

<p>Memorandum.—Forcible detainer. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1893, and affirmed.</p>

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1893.

Memorandum.—Two cases. Error and appeal consolidated. Appeal from an order of the Circuit Court of Cook County, denying the motion to set aside a default and vacate a judgment; the Hon. George Driggs, Judge, presiding. Heard in this court at the October term, 1893, Mr. Justice Waterman, dissenting.

<p>1. Pledges.—When to be Sold at the Request of Pledgor. —The pledgee of negotiable paper is bound to use reasonable diligence for its collection; but the pledgee of either chattels or choses in action is not bound to sell the same at the request of the pledgor.</p>

Memorandum.—Foreclosure proceedings. In the Circuit Court of Cook County; the Hon. Lorin O. Collins, Judge, presiding. Decree for complainants; appeal by defendants. Heard in this court at the October term, 1893, and affirmed.

Memorándum.—Action for personal injuries. In the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1893.

Memorándum.—Assumpsit. In the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Declaration on the common counts. Judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1893.

<p>Memorandum.—Mechanics’ lien. Error to the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding. Heard in this court at the October term, 1893. Reversed and remanded.</p>

Memorandum.—Assumpsit. In the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Declaration upon the common counts; judgment for plaintiff. Appeal by defendant. Heard in this court at the October term, 1893, and affirmed.

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1893, and affirmed.

<p>1. By-Laws--Not Binding upon Whom,.-—A person not a member of a corporation, in contracting with it, is not bound to take notice of its bylaws concerning the making of contracts and the incurring of obligations.</p> <p>2. Corporations—Authority of Officer to Bind. —A contract made by a corporation was signed by its vice president (when the president was in town), and to his signature he affixed the title of president. Held, the question is not what authority the vice president actually had under the by-laws, but with what authority was he apparently clothed.</p>

Memorandum.—Case. In the Circuit Court of Cook County; theHon. Richard S. Tuthill, Judge, presiding. Declaration, death by negligent act; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1893, and affirmed.