Volume 53 — Illinois Appellate Court Reports

Memorandum.—Petition to have an order entered nunc pro tunc. Appeal from the City Court of Alton; the Hon. J. E. Dunnegan, Judge, presiding. Heard in this court at the August term, 1893. Statement oe the Case.

<p>Memorandum.—Action for injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo D. Wildbrman, Judge, presiding. Heard in this court at the August term, 1898.</p>

Memorandum.—Debt on an official bond. In the Circuit Court of Monroe County; the Hon. George W. Wall, Judge, presiding. Declaration, pleas, non est factum, two years statute of limitation and ten years statute of limitation; trial by the court; finding and judgment for plaintiff; defendants appeal. Heard in this court at the August term, 1893, and affirmed.

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Jefferson County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1893 and affirmed. Instructions on the exercise of due care, referred to in the opinion: (1.) For the plaintiff.

Memorandum.—Action of trespass on the case. Appeal from the Circuit Court of Bond County; the Hon. Benjamin R, Burroughs, Judge, presiding. Heard in this court at the August term, 1893, and affirmed. Statement of the Case.

<p>1. Instructions—Ignoring the Issues.—Ah instruction which ignores the issue on trial is erroneous.</p> <p>2. Instructions—Assessment of Damages.—In a case where exemplary damages can not be given, it is error to instruct the jury to assess plaintiff’s damages at such a sum as the jury think him entitled to under the evidence. The damages should have been confined to such as he had sustained.</p> <p>3. Abstracts—Absence of References to the Record.—An abstract which contains no marginal references to the pages of the record is imperfect, and no costs will be taxed for it; but such imperfection will not justify an affirmance of the judgment.</p>

Memorandum.—Action for damages to stock by negligence of a common carrier. Appeal from the County Court of Effingham County; the Hon. S. F. Gilmore, Judge, presiding. Heard in this court at the August term, 1893.

Memorandum.—Malicious prosecution. Appeal from the Circuit Court of Johnson County; the Hon. Alonzo K. Yiokers, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict and judgment for defendant; plaintiff appeals. Heard in this court at the August term, 1893.

Memorandum.—Action for damages. Death by negligent act. Appeal from the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1894

Memorandum,—Action for personal injuries. In the Circuit Court of Christian County; the Hon. Jesse J. Phillips, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict for plaintiff, $5,000; judgment; appeal by defendant. Heard in this court at the November term, 1892.

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of McDonough County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the November term, 1892, and affirmed.

<p>1. Res Adjudicata— What is Not.— The judgment of the Appellate Court reversing and remanding a judgment, with directions to take the proper account and enter a decree according to the principles announced in the opinion, is not a final judgment, and the case may again be appealed from the taking of the account in the court below.</p> <p>3. Stockholders—Suits May be Against All or a Part.—A person having the right to file a bill against the stockholders of a corporation, may proceed against a part of them without joining all, subject to the right of those brought in by the bill to bring in the others by cross-bill.</p>

Memorandum.—Administration of estates. Final report of executor. Appeal from the Circuit Court of Fulton County; the Hon. Jefferson Orb, Judge, presiding. Heard in this court at the November term, 1892. Fourth clause of the will: 4th.

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Greene County; the Hon. Lyman Lacey, Judge, presiding. Heard in tins court at the November term, 1892.</p>

<p>Memorandum.—Forcible detainer. Appeal from Justice’s Court; appeal to this court from the Circuit Court of Scott County; the Hon. Cybus Epler, Judge, presiding. Heard in this court at the May term, 1893.</p>

<p>1. Arbitration—Between Insured and Insurer.—Where the company and the insured submitted the differences between them as to the value of property destroyed, to arbitration upon a written submission, excluding all other matters relating to such insurance, it was held, that the written submission excluded the conclusion that the company elected to pay the amount found by the arbitrators, and that by the terms of the policy, and of the written submission, the company had the right, before electing, to ascertain the cost of rebuilding, and to submit the question of the value of the property destroyed, to arbitration.</p>

Memorandum,—Indictment for assault and battery. Appeal from the County Court of Moultrie County; the Hon. Truman E. Ames, County Judge of Shelby County, presiding. Heard in this court at the November term, 1893, and affirmed.

<p>1. Husband and Wife—Transfers of Property Between.—Under section 9, Oh. 68, E. S., entitled “ Husband and Wife,” atransfer of personal property between husband and wife, living together, is not void as against the rights and interests of third persons, unless such transfer or conveyanee is in writing, and be acknowledged and recorded in the same manner as chattel mortgages are required to be acknowledged and recorded, where the possession of the property is to remain with the mortgagor.</p> <p>3. Bills of Sale—Between Husband and Wife.—Aclcnowledgment.— The entry upon the justice’s docket of a transfer of personal property between husband and wife must be made at the same time with the acknowledgment and as a part of it. Its omission or postponement until the instrument has been filed for record, is fatal to its validity.</p> <p>3. Married Women—Acquisition of Property from Husbands.— The fact that a wife has acquired personal property from her husband, paid for it in good faith, and taken actual possession of it before an execution against her husband came to the hands of an officer, will not entitle her to hold it against the creditors of her husband without a transfer or a conveyance, valid under the statute. She can acquire no title from her husband by such means as will be valid as against the rights or interests of “ any third person.”</p>

Memorandum.—Assumpsit on a promissory note. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1893, and affirmed.

Memorandum.—Action on policy of insurance. Appeal from the Circuit Court of Greene County; the Hon. George W. Herdman, Judge, presiding. Heard in this court at the November term, 1893, and affirmed.

Memorándum.—Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the November term, 1893, and appeal dismissed.

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1898, and affirmed.

<p>1. Wills—Republication—Effect of Codicil.—Where a codicil operates as a republication of the original will, the two are to be regarded as but one instrument, speaking from the date of the codicil. .</p> <p>2. Wills—Not Necessary That Witnesses Should See the Testator Sign His Name.—Under the statute governing the execution of wills, it is not necessary that the witnesses should see the testator sign his name, or that he should point out or identify a signature as being his, or that he should expressly state to them that he had signed the will. It is sufficient, if it appear that the testator acknowledged to the witnesses that the instrument he desired them to attest was his will and requested them to attest it as such.</p>

Memorandum.—Trial of the right of property. Error to the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1893. Statement of the Case. The plaintiff in error in his official capacity, as a constable, by virtue of an execution in his hands against one Frank Glover, levied upon property of which the defendant in error claimed to be the owner.

<p>1. Evidence—What is Proper in Rebuttal.—A part of mortgaged property having been removed from the State, a new mortgage was given upon the items so removed. The main question of fact was whether it was the intention of the parties that the lien of the old mortgage upon the property in controversy which was not removed from the State was released and abandoned. One party having testified that it was so understood and agreed, the other called in rebuttal a witness by whom he sought to prove that there was no such understanding, but the court refused to admit the proof. Held, error.</p>

<p>Memorandum.—Order dismissing an appeal. Error to the Circuit Court of Moultrie County: the Hon. Edwabd P. Vail, Judge, presiding. Heard in this court at the November term, 1893.</p>

Memorandum.—Assumpsit for goods sold, etc. Error to the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1893, and affirmed.

Memorandum.—Action for damages. Death from negligent act. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1893, and affirmed.

<p>Memorandum.—Assumpsit on a note. Error to the Circuit Court of Cumberland County; the Hon. Leonidas L. Logan, County Judge, presiding. Heard in this court at the November term, 1893, and affirmed.</p>

<p>1. Defaults—When the Plaintiff is in no Position to Take.—A plaintiff who has not filed his declaration as the law requires is in no position to ask for a default.</p> <p>2. Hew Pasties—New Declaration.—While the statute does not in so many words provide for the case of one who has been brought in as a co-defendant after declaration filed against the original defendant, by the reason and policy of the law it is clear that until a declaration filed against him, the new defendant is not bound to plead.</p> <p>3. Instantes—Bule to Plead.—Technically the rule to plead instanter means within the judicial day then begun. It is probably true that the term as originally used is understood to mean instantly, immediately or at once, so that upon such a rule a default may follow the entry of the rule, and this in effect makes the rule unnecessary, for the default might as well be entered without it.</p> <p>4. Default—Declaration to be Filed Ten Days, etc.—It is error to permit a default, when the declaration against a defendant has not been on file for ten days previously to the first day of the term at which the summons against him is returnable.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the November term, 1893.</p>

Memorandum.—Bill for specific performance. Error to the Circuit Court of Ford County; the Hon. Alfred Sample, Judge, presiding. Heard in this court at the November term, 1893, and affirmed.

Memorandum.—Suit upon an insurance policy by an administrator of the deceased insured. Appeal from the Circuit Court of Adams County; the Hon. Oscab P. Bonnet, Judge, presiding. Heard in this court at the November term, 1893.

<p>Memorandum.—Assumpsit. Error to the County Court of McLean County; the Hon. C. D. Myers, Judge, presiding. Heard in this court at the November term, 1893.</p>

Memorandum.—Action for damages. Death from negligent acts. In the Circuit Court of Tazewell County; the Hon. Nathaniel W. Green, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict for plaintiff for §1,600; judgment; defendant appeals. Heard in this court at the November term, 1893, and affirmed.

Memorandum.—Action for personal injuries. In the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict for plaintiff, $3,500; judgment; appeal by defendant. Heard in this court at the November term, 1893, and affirmed.

Memorandum.—Debt on appeal bond. Error to the Circuit Court of Edgar County; the Hon. Ferdinand Bookwalter, Judge, presiding. Declaration in debt; pleas, mil tiel record and fraud in obtaining judgment; trial by the court and judgment for plaintiff; defendant appeals. Heard in this court at the November term, 1893, and affirmed.

Memorandum.—Assumpsit. In the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Declaration: special count on a promissory note and common counts. Pleas, (1) general issue; (2) non-assumpsit verified; (3, by Green), the ten year statute of limitations, as a bar to the note. Plaintiff’s replications: That on December 1, 1883, the defendants paid the plaintiff §206.62 on said note.

Memorandum.—Assumpsit on a promissory note. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1893, and affirmed.

<p>1. Contracts—Sales of Grain—Grades.—Where a controversy was which of two inspections of grain should govern the price, the question having been submitted to a jury, it was held a question of fact for their determination.</p>

<p>Memorandum.—Forcible detainer. Appeal from the Circuit Court of De Witt County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the November term, 1893, and affirmed.</p>

<p>Memorandum.—Action originally begun in justice’s court. Appeal from the Circuit Court of Jersey County; the Hon. George W. Herdman, Judge, presiding. Heard in this court at the November term, 1893, and affirmed.</p>

Memorandum.—Action for damages done by fire. Appeal from the Circuit Court of Coles County; the Hon. J. C. Henley, County Judge, presiding. Heard in this court at the November term, 1893, and affirmed.

Memorandum.—Assumpsit. Appeal from the County Court of Montgomery County; the Hon. G. R. Cooper, County Judge, presiding. Heard in this court at the November term, 1893, and reversed and remanded.

<p>1. Subeogation—Arises by Operation of Law.—Subrogation arises by operation of law and not by ■ contract. It operates to equitably assign to a surety who has paid an obligation of a principal debtor, any securities or liens held by the creditor against such principal debtor.</p> <p>2. Limitations—Absence from the State.—Absence from the State after a cause of action accrues, will be deducted from the period fixed by Oh. 83, R. S., entitled, “Limitations,” in which to begin an action.</p> <p>3. Consideration—Seal Imports.—A consideration is prima facie presumed from a seal attached to the instrument.</p> <p>4. Estoppel—By Averments in a Bill —A complainant is not to be irrevocably concluded by averments made in his bill.</p> <p>5. Decrees—When Not Personal.—A decree in foreclosure, which directs that the defendant pay the amount found due to the complainant within thirty days, and if default be made in such payment the mortgaged land he sold, is not a personal decree, but an alternative one, that the money be paid, or that the land be sold.</p>

Memorandum.—Bill for the appointment of a receiver, etc. In the Circuit Court of Yermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Appeal from an order appointing a receiver. Heard in this court at the November term, 1893.

Memorandum.—Assumpsit. Suit commenced August 11,1891. Appeal from the Circuit Court of Sangamon County; the Hon. Jesse J. Phillips, Judge, presiding. Heard in this court at the May term, 1893. Statement of the Case. The appellee owned certain lots in Springfield, Illinois.

Memorandum.—Bill for injunction. Error to the Circuit Court of Boone County; the Hon. Charles Kellum, Judge, presiding. Heard in this court at the May term, 1893, and affirmed. Statement of the Case. Plaintiffs in error filed their bill to enjoin the collection of a certain judgment for $119.34, rendered by a justice of the peace against their school district on an order issued to the National School Furnishing Company in payment for school furniture.

Memorandum.—Action for damages. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the May term, 1693, and affirmed.

Memorandum.—Action for libel. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Circuit Judge, presiding. Heard in this court at the May term, 1893, and affirmed.

Memorandum.—Action on a policy of insurance. Judgment for plaintiff. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the May term, 1898. Statement of the Case. On the 13th day of July, 1891, James Stewart lost by fire, a hay press and a small stack of hay.

<p>Memorandum.—Action upon a contract of subscription. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the May term, 1893.</p>

Memorandum.—Action for personal injuries. In the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Declaration in case, with a count in trespass, etc. Pleas, not guilty; trial by jury; verdict for plaintiff, $10,000; judgment; error by defendant. Heard in this court at the December term, 1893, and affirmed.

Memorandum.—Bill for an accounting for rents and profits. Error to the Circuit Court of Kendall County; the Hon. Clark W. Upton, Judge, presiding. Heard in this court at the December term, 1893.

Memorandum.—Assumpsit. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the December term, 1893. Copy of affidavit for continuance: State of Illinois, ) Peoria County. ss. In Circuit Court, May term, 1893. L. R. Turner vs. Michael Harrigan.

Memorandum.—Bill in chancery to compel thereversioner to contribute toward the payment of a mortgage. Error to the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the December term, 1893. Statement of the Case. On the 23d of October, 1878, Barnabas Kelsey died in Ogle county, Illinois, testate, leaving Susan Kelsey, his wife, and Emma Boue, his daughter, as his only heirs at law.

<p>1. Cities and Villages.—Appointment of Treasurer.—Under Sec. 188, Oh. 24, R. S., entitled “ Cities, Villages and Towns,” the president of the board of trustees of a village is possessed of no greater power in the appointment of a treasurer to fill a vacancy than is one of the trustees. He is a member of the board by virtue of his office, and as such, has the same voice in the appointment of a treasurer that any member elected as trustee has.</p>

<p>1. Appeals from Justices—Trials in the Appellate Court—Dismissal.—Where the transcript of judgment and papers are not filed ten days before the commencement of the next succeeding term of the court to which the appeal is taken, the case is not for trial at that term, and the appeal can not be dismissed for a failure of the defendant to appear and prosecute it at that term.</p> <p>2. Same—Dismissal for a Failure to Comply with the Rules of Court.— Under a rule of court providing that in case of appeals the clerk shall collect from appellant $5, and from appellee upon entry of appearance §1.50, and in case of refusal of either party to pay said fees, he shall perform no duty for such party, except on paying in advance of the fees for such service, it is error where the appellee pays the advance fee of §5 to order the appellant to refund the same, and in .case he fails, to dismiss his appeal. The rule only requires the payment in advance of the legal fees of the clerk for services rendered.</p> <p>3. Record—Not Contradicted by Clerk’s Affidavit.—Where the transcript of a record certified to this court under the hand and seal of the clerk of the Circuit Court recites that a justice’s transcript and accompanying papers were filed in the office of said clerk on a certain day, such record and the file mark indorsed by the clerk upon each of said papers can not be contradicted by the affidavit of a deputy clerk. If a mistake has been made, it can be corrected only by amendment of the file mark by leave of court.</p>

Memorandum.—Action for injury to personal property. Appeal from the Circuit Court of Grundy County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the December term, 1893, and reversed.

<p>Memorandum.—Quo warranto. Error to the Circuit Court of Mercer County; the Hon. Arthur A. Smith, Judge, presiding. Heard in this court at the December term, 1893.</p>

<p>1. Husband and Wipe—Joint Action.—A party claiming to be improperly joined as a defendant in a suit, has the burden of showing the improper joinder.</p>

Memorandum.—Assumpsit for breach of a contract of sale. Appeal from the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

<p>1. Franchise—Dissolution of a Corporation.—A franchise is involved in a suit in equity to dissolve a corporation and the appointment of a receiver to wind up its affairs.</p> <p>2. Appeals-—Jurisdiction•—Question of Franchise Not Raised.— Where, in a suit being brought to dissolve a corporation and to wind up its affairs, the corporation does not appeal from the decree and no errors are assigned by the parties appealing calling in question the decree upon that subject, the question of jurisdiction can not be raised.</p> <p>3. Jurisdiction—Hoiu Determined on Appeal.—The jurisdiction of the Appellate Court is to be determined by the questions involved in the. appeal.</p> <p>4. Corporation—Power of a Director to Loan it Money.—Ordinarily, a director is not prohibited from lending money to his corporation when needed, and taking security for the loan. Such transaction constitutes a well recognized exception to rules imposing limitations upon the power of a director to deal with his corporation. There is no interest in the director, in such case, conflicting with his duty to the corporation, and such a transaction, if otherwise free from blame, is not affected by his relation to the corporation.</p> <p>5. Corporations—Loans to, by Directors of Insolvent, etc.—If, at the time a loan is made by a director to his corporation, its condition is such as to place him in a fiduciary relation toward its creditors, it would be essential to the right of a creditor to set aside the transaction that he should prove that the director had obtained some advantage, or that such creditor had suffered some injury by such transaction.</p> <p>6. Directors—Loans to Corporations—When Invalid.—If a director, in making a loan to his corporation, has secured an advantage to himself, resulting in disadvantage to other creditors, then the transaction may be set aside. To have that effect, however, it would be necessary to show that some asset of the corporation in which the creditor had an equitable share, had been appropriated in some way to the benefit or advantage of the director.</p> <p>7. Attorney’s Fees—When Legal.—When a condition in a note for the allowance of attorney’s fees is once lawfully made, it does not become illegal because continued in a renewal of the note by the original maker after he has become insolvent.</p> <p>8. Preferences—By Corporations.—An insolvent corporation may prefer one creditor over another, but this rule is subject to the qualification that the property of the insolvent corporation is a trust fund to be applied to the payment of the debts of the corporation, and the directors, being trustees of the fund, can not, in the disposition of it, secure any advantage to themselves not shared equally by other creditors.</p> <p>9. Same—By Directors of an Insolvent Corporation.—Directors of a corporation can not be permitted to deal with the fund in such a manner as to secure preferences to themselves, although they may in good faith give preferences where they have no personal interest.</p> <p>10. Corporations—Rights of Director Creditors.—Directors may enforce any contract and avail themselves of any security made or given before the fiduciary relation attaches, but after that time they can not acquire any advantage over other creditors.</p> <p>11. Assignment for the Benefit of Creditors, —diving a Mortgage is Not.—Giving a mortgage to secure indebtedness is not making an assignment for the benefit of the mortgagor’s creditors. A mortgage would frequently be but an indifferent sort of security under such a rule.</p> <p>12. Same—Right of a Secured Creditor To Prove His Claim.—A creditor who has, after the appointment of a receiver and before making proof of his claim, been paid a part of such claim by realizing upon col-laterals, is not entitled to prove the claim for more than is due him when he proves it.</p>

<p>1. Evidence—Conditional Acceptances.—Where an order is orally accepted and payment promised upon the condition that it is right, the only question for trial is the correctness of the order, and evidence having no tendency to show that the order was or was not right is not competent.</p> <p>2. Instructions—Ignoring Competent Testimony.—An instruction which amounts to an elimination of competent evidence from the case is erroneous.</p>

<p>1. Roads and Bridges—Injunction by Tax Payers—Allegations and Proofs.—Where a bill in equity is filed by persons claiming to be tax payers to enjoin the building of a bridge by the commissioners of high ways, the burden of proof is upon such persons to show that they ar tax payers.</p> <p>2. Same—Right of Tax Payer to an Injunction.—A tax payer can maintain a bill to restrain the creation of an illegal debt, against the authorities of a town or city.</p>

<p>Memorandum.—Action in case. Error to the Circuit Court of Ogle County; the Hon. John D. Crabtree, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.</p>

<p>Memorandum.—In chancery. Error to the Circuit Court of Rock Island County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1893.</p>

<p>1. Appeals—Claims in Probote.—Appeals from judgments, orders and decrees of the County Court in the adjustment and allowance of claims against the estates of deceased persons are properly taken to the Circuit Court.</p> <p>2. Appeal Bonds—Objections to be Macle in Apt Time.—Formal objections to an appeal bond, or to the manner of taking an appeal, come too late after a cause has been pending for years in the court to which the appeal is taken, and has been twice tried in that court.</p>

<p>1. Acceptances—Draft upon Creditors.—A draft drawn “ on arrival of oar and inspection, less freight, pay to the order of the First National Bank, $500, value received, and charge to the account of,” and accepted “ subject to inspection and according to sample,” is accepted upon condition that the merchandise in the car shall be as good as the sample, and if not as good, then the difference is to be deducted from the draft, less, also, freight, as provided in the draft.</p>

Memorandum.—Assignment for the benefit of creditors. Appeal from an order of the County Court of Peoria County, directing the distribution of the assets of the Transcript Publishing Co.; the Hon. Samuel D. Wead, Judge, presiding. Heard in this court at the December term, 1893.

<p>1. Agricultural Societies —Sale of Privileges—Right to Protect Purchasers.—A person applied to an agricultural society for the purchase of a privilege, and agreed upon the price to be paid for it, but there was no agreement that the purchase should be upon a credit. Not hearing further from him as to whether he was prepared to take the privilege, the society, on the evening before the opening day of the fair, sold it to another. It was held, that the mere fact that it had been agreed that the privilege should be sold for a certain price, which had not been paid, did not authorize the person applying for the purchase to exercise the privilege, to the detriment of one who had paid for it. Nor did it debar the society from protecting the purchaser who had paid his money from infringement.</p> <p>2. Sales—Gredit—Right to Possession.—Unless a sale is agreed to be made on credit, the payment of the purchase price is a consideration precedent to the right to take possession of the thing sold.</p> <p>3. Damages—When Excessive.—Where the evidence shows that the defendant in an action for assault and false imprisonment was acting in good faith and without malice, §400 is excessive, no actual damages being shown.</p>

<p>Memorandum.—Trespass. Appeal from the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.</p>

<p>Memorandum.—Attachment proceedings. Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding. Heard in this court at the December term, 1898.</p>

Memorándum.—Assumpsit for services rendered. Appeal from the Circuit Court of Henry County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

Memorandum.—Bill to foreclose chattel mortgage. Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding. Heard in this court at the December term, 1898, and affirmed.

<p>1. Instructions—Not Based upon Evidence, Erroneous.—An instruction which tells the jury that the plaintiff may recover damages arising from an accident, consisting of “ money expended and for which he is liable, if any, in attempting to be cured of such injury so arising,” when there is no evidence in the record that he had ever expended any such money, or was liable for any such purpose, is erroneous, as misleading.</p> <p>3. Same—Specific Proof as to Damages.—An instruction which tells the jury that it was not.necessary for appellee to make “ specific proof” of the amount of damages, if any, arising from an injury, when, in fact, it was necessary to make such proof as to the services in attempting to be cured of the injury, is erroneous as misleading.</p> <p>3. Exemplary Damages—Ahí Proper, When.—There can be no exemplary damages allowed in actions for personal injuries, and compensation for pain and suffering ought to be regulated by sound reason.</p>

Memorandum.—Trespass for taking property. Appeal from the Circuit Court of Rock Island County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1893. Statement oe the Case. In January, 1891, Sam Arndt began business in Bock Island under the style of American Clothing Co. He represented that he and his wife, Justina, constituted the firm.

Memorandum.—Quo warranto proceedings. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

<p>Memorandum. — Forcible detainer. Error to the Circuit Court of Rock Island County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1898, and affirmed.</p>

<p>1. Expert Testimony—What Is Not.—A witness may testify as to the distance between objects or the distance from which a given object could he seen without having actually measured or made an estimate of it with his eye. Such is not expert testimony.</p> <p>2. Risks oe Employment— When Assumed by the Employe.—An employe can not recover for an injury suffered in the course of the business about which he is employed, from defective machinery, after he has knowledge of the defects and continues to work without promise or representation that the defect will be remedied. In such a case it will be presumed that he voluntarily assumed the risk and waived whatever obligations rested upon the employe to furnish complete and perfect appliances.</p>

Memorandum.—Action for slander. Appeal from the Circuit Court of La Salle County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

Memorandum.—Order retaxing fees. Appeal from the Circuit Court of Livingston County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the December term, 1893, and appeal dismissed.

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the December term, 1893, and reversed.

Memorandum.—Assumpsit on contract for transportation. Appeal from the Circuit Court of Livingston County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the December term, 1893, and reversed.

Memorandum.—In chancery. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the December term, 1893, and affirmed. Statement of the Case. John Hickey, a resident of Chenoa, McLean county, employed Frank S. Allen, residing and doing business as an architect at Joliet, Will county, to prepare plans and specifications for a building at Chenoa, and to superintend its erection.

<p>1. Bridges—Over Streams Between Adjoining Towns.—The duty to act upon a contract, entered into by the commissioners of two adjoining towns for the erection of a town line bridge, is imperative, but the making of the contract for such purpose is entirely discretionary.</p> <p>2. Mandamus—Relator Must Show a Olear Right.—Before a relator is entitled to a writ of mandamus to enforce performance of an alleged statutory duly, he must show a clear right to it, and the statute imposing the duty, must be mandatory.</p> <p>3. Same—When the Duty is Discretionary.—If the duty of a public officer is discretionary, and depends upon the exercise of judgment as to necessity or propriety, the court will not grant a writ of mandamus but will leave him to the free exercise of his judgment.</p>

memorandum.—Action for personal injuries. Appeal from the Circuit Court of Peoria Comity; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

Memorandum.—Suit for the violation of a city ordinance. Appeal from the City Court of Aurora; the Hon. R. P. Goodwin, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

<p>Memorandum.—Bill for an accounting. Appeal from the Circuit Court of Iroquois County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the December term, 1893.</p>

Memorandum.—Trespass on the case for maliciously suing out a search warrant. Appeal from the Circuit Court of Carroll County; the Hon. Jams Shaw, Judge, presiding. Heard in this court at the December term, 1893.

Memorandum.—Assumpsit for services. Appeal from the Circuit Court of Will County; the Hon. Borrance Dibell, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

Memorandum,—Action for damages. Sales of intoxicating liquors. Appeal from the Circuit Court of Marshall County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

Memorandum.—Assumpsit for goods sold. Appeal from the County Court of Peoria County; the Hon. Samuel D. Mead, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

Memorandum.—Assumpsit on a promissory note. Appeal from the Circuit Court of La Salle County; the Hon. S. P. Hall, Judge, presiding. Heard in this court at the December term, 1893, and reversed.

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Henry County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

<p>1. Mechanic’s Lien—Recovery of Material Furnished by Replevin.— The lien given by statute to a material-man is a lien on the lot and building on which the material is used. If the person furnishing has a lien upon the material he can enforce it only in the manner provided by statute, by petition under the mechanic’s lien law. He has no right to reduce the property to possession by replevin.</p> <p>2. Sales—Affirmance—Rescission.—Where a person furnishes goods upon a contract, and with full knowledge of all the facts brings his action of assumpsit to recover the purchase price, he will' be held to have affirmed the contract, and the right of rescission is extinguished.</p>

Memorandum.—Motion to assess damages on the dissolution of an injunction. Appeal from the Circuit Court of Du Page County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the December term, 1893, and reversed.

<p>Memorandum.—Replevin. Appeal from the Circuit Court of Livingston County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.</p>

<p>1. Recognizances—Forfeitures, When Set Aside.—Under Sec. 310, Ch. 38, R. S., providing that before judgment the court may, in its discretion, set aside a forfeiture of a recognizance by the accused being brought or coming into open court, and showing by affidavit that he was unable to appear according to the terms of the recognizance, by reason of sickness or other cause which shall satisfy the court that he has not been guilty of any laches or negligence, there must not only be no intent on the part of the accused to evade the law, but he must not, either by himself or his agents or attorneys, be guilty of any laches or negligence as provided by statute.</p>

Memorandum.—Assumpsit for goods sold and delivered. Appeal from the Circuit Court of Peoria County, the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

Memorandum.—Assumpsit on promissory note. Appeal from the Circuit Court of Henry County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

<p>1. Venue—In Criminal Cases.-—Failure to prove the county in which an offense is committed is fatal to a judgment of conviction.</p> <p>3. Notice—Judicial, of Municipalities.—Courts take judicial notice of the location of municipal corporations.</p>

Memorandum.—Assumpsit on a promissory note. Appeal from the Circuit Court of LaSalle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

<p>Memorandum.—Replevin. Appeal from the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding. Heard in this court at the December term, 1893.</p>

Memorandum.—Bill in aid of execution. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1893, and affirmed.

<p>1. Forcible Detainer—By an Executor Under a Will.—Where a testator directed that certain lands be sold by his executor “ within five or six years after my death, as in his judgment he may deem best," and that the same and the personal property thereon be rented by said executor until the said land was sold, it was held that the executor had a power coupled with an interest in the land to such an extent as to authorize him to maintain a suit of forcible detainer for the possession.</p>

Memorandum.—Assumpsit for commissions of real estate agent. Appeal from the Circuit Court of Washington County; the Hon. George W. Wall, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

<p>1. Instructions—Where the Evidence is Conflicting.—Where the evidence is conflicting, the imperative rule recognized and adopted in this State requires that the jury shall be accurately instructed.</p> <p>2. Estoppel—When a Person is Called upon to Spealc.—Where the agents of a mortgagee acting under a chattel mortgage, and upon his information and direction, took certain property, the mortgagor is estopped by his own acts and declarations, deliberately done and made, at a time when he was called upon to speak and assert his rights, if he had any in the property he knew was about to be taken under the provisions of the mortgage, and he can not afterward claim a part thereof as after-acquired property not subject to the mortgage lien.</p> <p>3. Possession— When Not Prima Facie Evidence of Ownership.— Where the material question is, “is the property taken subject to the mortgage lien,” it is error to instruct the jury that if plaintiff was in possession of, and claimed to own the property described in the declaration, the legal presumption is that it was his property, and if they believe from the evidence said property was his and in his possession and defendants took and sold or disposed of it, or appropriated the proceeds to their own use, then under the law a prima facie case was made for plaintiff, and the burden is cast upon the defendants of proving ‘ some sort of justification ” for taking and selling the property. The instruction makes the plaintiff’s ownership and possession controlling facts.'and directs the attention of the jury to them as such, whereas, by the terms of the mortgage the plaintiff could retain possession until condition broken. This ownership and possession at the time of taking were not inconsistent with the existence of such lien.</p> <p>4. Instructions —Invading the Province of the Jury.—Where a sworn schedule made under the exemption law is introduced in evidence for the purpose of contradicting a party upon a question of ownership of personal property, it is error to instruct the jury that it does not have such weight in law as to estop him from contradicting such statement by his testimony as a witness. It invades the province of the jury, who alone are to determine the weight to be given to the evidence.</p>

Memorandum.—Action for damages; death from negligent acts. Appeal from the Circuit Court of Perry County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

Memorandum.—Assumpsit for goods sold. Error to the Circuit Court of Effingham County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the February term, 1894. and affirmed. Statement oe the Case. Albert Ellinger, doing business under name of A. Ellinger & Co., brought this suit to recover of Hogan Bros, the price of certain cloaks alleged to have been sold and delivered to them by plaintiff.

Memorandum.—Action on an insurance policy. Error to the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1894. Statement of the Case.

<p>Zfomoraiiftuin.—Assumpsit. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1894.</p>

Meaiorandum.—Bill for injunction. Error to the Circuit Court of Wabash County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the February term, 1894, and dismissed. Statement of the Oase. This was a hill in chancery in the Circuit Court of Wabash County, brought by the defendants -in error, who were the complainants below, against the plaintiff in error.

Memorandum.—Action for personal injuries. Appeal from the Franklin County Circuit Court; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1894, and affirmed. Statement of the Case. This suit was brought to recover for personal injury produced by collision between a pile-driver car, on which the plaintiff was riding, and a car standing on the side track at Mulkeytown station.

Memorandum.—Allowance of claims by county board. Appeal from the Circuit Court of Fayette County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court on appeal from the Circuit Court at the February term, 1894. Rules of the county board under consideration in the case: 1.

<p>1. Cities and Villages—Neglect to Repair Walks—IAability.—If a defective condition of a sidewalk is shown, to have existed for a length of time sufficient; to enable the authorities, by the exercise of reasonable care and diligence, to discover and remedy the defect by proper repairs, and the authorities fail to do so, the city is guilty of negligence, creating a liability to respond in damages.</p> <p>2. Same—Defective Walks—Constructive Notice.—Where defects in the sidewalk are not latent or hidden in their character, the city will be chargeable with constructive notice of them.</p>

Memorandum.—Claim in probate. Error to the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1894, and affirmed. Statement of the Case. A. E. Hickman was the father of Ernest Hickman, who • was the husband of Annie Hickman.

<p>Memorandum.—Assumpsit for breach of contract. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S.Wildekman, Judge, presiding. Heard in this court at the February term, 1894.</p>

<p>1. Service of Process—Who is Not an Agent.—The master of a local subordinate lodge of a voluntary mutual benefit association, is not necessarily an ex officio agent of the supreme or grand lodge of such association, so that service of process can be had upon such master, and thereby bring the supreme or grand lodge into court.</p> <p>2. Voluntary Associations—Master of the Local Lodge as Agent of the Grand, Lodge.—Service of process upon the master of the local lodge as “ agent of the grand lodge,” will not confer jurisdiction over the grand lodge in a proceeding in the law courts.</p>

<p>1. Promissory Notes—Coupons for Interest Negotiated—Notice.— Where interest upon a principal loan was secured by coupon notes, each contained this clause: “ This is an interest note subject to deduction or total defeasance on payment of principal notes.” It was held that in esse of a payment of the principal note, if negotiated, there being nothing due thereon, no recovery could be had.</p> <p>2. Variance—When Not Material.—Where a notary was described in the body of a protest as Wm. H. Scudder, Jr., which was signed Wm. H. Scudder and sworn to by Wm. H. Scudder, Jr., it was held that the omission of the addition, Jr., in the one instance, does not justify the inference that two different persons officiated in the protest.</p> <p>3. Protests—Demand of Payment.—Where payment is demanded at the place the note is, by its terms, to be paid, other demand upon the maker is not required.</p> <p>4. Same—‘ ‘ Notice of Dishonor.”—A person who is a primary debtor, not an indorser, is not entitled to notice of dishonor.</p> <p>5. Same—Days of Ch'ace.—The payment of a note due March 18th, is properly demanded March 21st, and protested for non-payment on the same day.</p> <p>6. Solicitor’s Fees—In Foreclosure Proceedings.—Under a mortgage providing that compensation shall be made to the trustee for all services rendered, and that the mortgagor agrees to pay all expenses, fees and charges of the trustee in executing the trust, and it is so alleged in the bill, the reasonable solicitor’s fees and compensation of the trustee for services are a lien upon the land and property included in the decree.</p> <p>7. Contracts—When Subject to the Laws of Other States.—When notes are dated, executed and made payable at a place in another State, and the mortgage securing them recites that the mortgagor and mortgagee are of the same place, it follows that the place fixed for the performance of the contracts is in such State and such notes and mortgage are contracts of such State, and subject to the provisions of its statutes as to forfeitures, non-payment and protest.</p>

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Marion County; the Hon. BenjaminR. Burroughs, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1894.</p>

Memorandum.—Action for damages for the sale of intoxicating liquors. Appeal from the Circuit Court of Perry County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1894.

Memorandum.—Action for killing domestic animals. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1894.

Memorandum.—Action for damages occasioned by obstructing the flow of water. Appeal from the Circuit Court of Madison County; the Hon. Benjamin B. Burroughs, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

Memorandum.—Action for failure to stop a train on signal. Appeal from the Circuit Court of Effingham County; the Hon. Edmund D, Youngblood, Judge, presiding. Heard in this court at the February term, 1894.'

<p>1. Instructions—What ¿is Required of the Court.—Where the court gives, without modification, all of the instructions asked by a party, and the instructions on both sides, taken together as one charge, present the law to the jury fairly and clearly, it is all the law requires.</p> <p>2. Same—Not Assuming Facts.—An instruction which states that if, under the evidence and the instructions of the court, the jury finds defendant guilty, they may take certain facts into consideration in estimating the. damages, is not subject to the objection that it assumes the existence of facts not proven.</p> <p>3. Verdicts—Against the Evidence.—A verdict manifestly against the weight of the evidence will be set aside.</p>

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Perry County; the Hon. Benjamin B. Burroughs, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

Memorandum.—Bill to foreclose trust deed. Decree pro eonfesso on default. Error to the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderhan, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

Memorandum.—Action for killing domestic animals. Appeal from the Circuit Court of Fayette County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the February term, 1894, and affirmed. Statement oe the Case. This was a suit brought in justice’s court by appellee against appellant, to recover the value of a horse which was struck, and killed on defendant’s track, upon a bridge, by the engine of a moving train operated by the servants of defendant.

Memorandum.—Trover. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1894, and affirmed. Statement of the Case. Appellant sold and delivered to the Hewbern Press Brick Co., of Kewbern, Jersey Co., Ill., certain machinery and appliances for making brick.

<p>Memorandum.—Replevin. Appeal from the Circuit Court of Pulaski County; the Hon. Alonzo K. Viokbes, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.</p>

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

<p>[Note: The questions in this case are identical with the preceding case.]</p>

<p>Memorandum.—Bill for relief. Error to the Circuit Court of Randolph County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.</p>

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Wabash County; the Hon. Edmond D. Youngblood, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

Memorandum.—Suit on replevin bond. Appeal from the Circuit Court of Union County; the Hon. Joseph P. RObarts, Judge, presiding. Heard in this court at the February term, 1894, and reversed.

Memorandum.—Action for damages. Death from negligent act. Appeal from the Circuit Court of Madison County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1894.

Memorandum.—Suit for a penalty for bringing a pauper into the State. Appeal from the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

<p>Memorandum.—Replevin. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at .the February term, 1894.</p>

Memorandum.—Prosecution under a city ordinance. Appeal from the Circuit Court of Alexander County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1894, and affirmed. Statement of the Case.