Volume 54 — Illinois Appellate Court Reports

<p>Memorandum.—Assumpsit. Breach of warranty. Appeal from the Circuit Court of Wabash County; the Hon. Silas Z. Landes, Judge, presiding.</p>

<p>1. Estoppel—Equitable, Grounds of.—The doctrine of equitable estoppel is based on the ground of promoting the justice and equity of the individual case, by preventing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth.</p> <p>2. Same—In Pais—Mutuality.—An estoppel inpais must operate on both parties. Mutuality is essential.</p> <p>3. Same—Based Upon Fraudulent Purposes.— The doctrine of estoppel in pais, or equitable estoppel, is based upon a fraudulent purpose and a fraudulent result. If, therefore, the element of fraud is wanting there is no estoppel, as, if both parties were equally cognizant of the facts and declaration, and silence of one párty produced no change in the conduct of the other, he must be held as acting solely on his own judgment.</p> <p>4. Same—Fraudulent Intention.—Estoppels are founded on intention and can not be extended to objects which the parties can not reasonably be supposed to have had in view,</p> <p>5. Same—Evidence of, Under the General Issue.—The facts creating an estoppel can be proven under the general issue.</p> <p>6. Same—No Mutuality, No Estoppel.—G. as administrator of D. sued H. G. & F. upon a promissory note signed by them. H. was not served. The controversy involved the question as to whether or not an account held by H. against D. to an amount equal to the balance on the note, was a good defense in connection with the evidence that D. during his lifetime had declared that he would not pay the account held by H. against him as long as the note he held with H.’s name on it remained unpaid; that if H. sued on the account he would setoff the note against it. It was held that the alleged defense did not operate as an estoppel inpais, there being no mutuality between the parties.</p>

<p>1. Pleading—Special Pleas in Case.—To a declaration in case, special pleas are not necessary, as all defenses may be made under the plea of not guilty.</p> <p>2. Evidence—Declaration of Employes.—In general, such declarations of employes are not competent unless made at the time of the accident and directly connected with the main facts.</p> <p>3. Same—Declarations of Employes—Time When made.—Declarations of employes are not admissible unless shown tobe apart of the res gestae of the accident, and to have been made in the course of their duties. No inflexible rule can be formulated as to time when the declaration must be made to form a part of the res gestae and the authorities are quite conflicting.</p>

Memorandum.—Action for personal injuries. Appeal from, the Circuit Court of St. Clair County; the Hon. Alonzo S. Wildbrman, Judge, presiding. Appellee's seventh instruction: VII.

Memorandum.—Action for damages; death from negligent act. Error to the Circuit Court of St. Clair County; the Hon. Benjamin R. Burroughs, Judge, presiding. The general verdict: We, the jury, find the defendant guilty and assess the plaintiff’s damages at 02,000. The special findings held irreconcilable with the general verdict: 1.

<p>Memorandum.—Proceedings to distribute the proceeds of execution sales. Appeal from the Circuit Court of Massac County; the Hon. Alonzo K. Vickers, Judge, presiding.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderhan, Judge, presiding.</p>

<p>1. Questions op Fact—Settled by a Decree.—Where a controversy involves principally questions of fact and such questions have, been properly settled by a decree, this court will not disturb the finding.</p>

<p>1. Insurance—Change of Title—Death of Insured Avoids the Policy. —Under an insurance policy containing a provision that in case of a change of title to the property insured or any part thereof, or any interest therein, without the consent of the company indorsed thereon, the policy should at once cease to be binding upon the company, it was held that the death of the insured effected such a change of title to the property, and operated to forfeit the policy.</p>

<p>Memorandum.—Bill for.relief. Appeal from the Circuit Court of Wabash County; the Hon. Carroll C. Boggs, Judge, presiding.</p>

<p>1. Statute of Frauds—A Contract Not Within.-The following contract, viz.:</p> <p>“ ST. Louis, Nov. 26th, 1888.</p> <p>E. H. Babbitt, Esq., Dear Sir: We propose to make you an offer of §1,650 for the first year and §1,800 for the second, we to have the privilege of canceling the agreement at the end of the first year if we are not satisfied with your work. Respectfully,</p> <p>G. D. Barnard & Co.</p> <p>Accepted. E. H. Babbitt. Geo. D. Barnard, Pt.”</p> <p>is not within the operation of the statute of frauds.</p> <p>2. Contract for Services—-No Time Fixed.—Where a person contracts to perform services, no time being fixed, the presumption is, lie was to commence work at once or within a reasonable time after the expiration of the contract.</p> <p>3. Pleading—Former Recovery in Bar—Burden of Proof.—Where the defendant pleads a former recovery in bar, and the plaintiff in his replication seeks to avoid it by alleging that the recovery was a voluntary non-suit, concluding with a verification, the rejoinder concluding to the country, the burden of proving the matters in the replication is upon the plaintiff.</p>

<p>Memorandum.—Assumpsit on promissory notes. Appeal from the County Court of Jackson County; the Hon. W. W. Barr, Judge, presiding.</p>

<p>Memorandum.—Action for killing domestic animals. Error to the Circuit Court of Wayne County; the Hon. Cabroll C. Boggs, Judge, presiding.</p>

<p>1. Beneficiary Associations—Suspension of Members.—The suspension of a member in a beneficiary association must be made on the books of the association as a matter of record, when required by its bylaws, if it is intended to forfeit a member’s rights as a member. Where there is no proof of an assessment, of notice to pay the same, or of a legal suspension, there can not be, under the by-laws, any legal expulsion for non-payment of dues and assessments.</p> <p>2. Same—Expulsion of Members—Burden of Proof.—Where a beiieficiary association sets up as a defense to a suit by the widow of a deceased member, that he was not in good standing in his lodge, had been suspended and expelled, the burden is upon it to show such defense by the records, and that such action in suspending and expelling was in accordance with the laws of the order.</p> <p>3. Same—Must Be an Assessment Before a Defatilt.—Before a default can be alleged in the payment of an assessment by a beneficiary associa.tion, there must be proof of a legal assessment made by the association.</p> <p>4. Same—Notice of Assessment.-—If the laws of such an association require notice to be given members of the assessment, a beneficiary can not be defeated in a suit to recover on a certificate of insurance, for failure to pay an assessment, without proof such notice was given.</p> <p>5. Same—Tender of the Assessment, When Not Necessary.—In the absence of proof by a beneficiary association, that an assessment has been made according to the by-laws, proof of a tender of the amount of the assessment is unnecessary.</p>

<p>1. Water-Courses—Deorees as to by Consent.—Where a party to a chancery proceeding obtains an order of court, to which the opposite party consents, that if a certain ditch is dug in a certain manner, it will be satisfied, such party can not, after the work is done, be heard to say the law required the other party to build a bridge instead of digging the ditch.</p>

<p>Memorandum.—Action for damages by fire. Appeal from the Circuit Court of Wayne County; the Hon. Silas Z. Landes, Judge, presiding.</p>

<p>Memorandum.—Suit for violation of a city ordinance. Appeal from the Circuit Court of Alexander County; the Hon. Alonzo K. Vickers, Judge, presiding.</p>

<p>1. Freehold—Highway by Prescription.—The question as to whether a road exists by prescription involves the determination of a freehold, and no appeal lies to this court.</p>

<p>1. Negligence—Pleading and Proof—Wantonness and Intentional Wrong.—The degree of negligence is a matter of proof and not of averment necessarily, yet wantonness or intentional wrong is not legally classed with any degree of mere negligence. Gross negligence is not in law a designated and intentional mischief, although it may be cogent evidence of such fact.</p> <p>2. Same—Contributory Negligence as a Defense.—Where the action is founded on negligence of any degree, contributory negligence is a defense, but it is not, where the injury is willful.</p> <p>3. Intentional Wrong—As a Ground of Action.—Intentional wrong as a ground of action is not involved in a case counting for mere negligence.</p> <p>4. Negligence—Special Findings and the General Verdict.—In an action for damages resulting from a death caused by negligence, where the charge was that the defendants suddenly and without warning moved a locomotive and train, the jury found a general verdict for the plaintiff, but also found specially that the men in charge of the train before starting it, gave all the warning required by law. The judgment entered upon the general verdict was reversed.</p> <p>5. Railroad Oars—Children Hanging Upon.—It is not the duty of employes of a railroad company before starting a train, to make an examination to see if any children are hanging upon or have crawled under it.</p> <p>6. Railroad Companies—Not Insurers.—A railroad company is not an insurer against every accident which happens in a street; when it has exercised the highest degree of care for the safety of the citizen consistent with a reasonable exercise of its franchise, if there is no negligence or willful misconduct, there is no liability.</p> <p>7. Same—Duty Regarding Children.—The fact that a child of tender years and incapable of exercising care, is the injured party, in the absence of knowledge of its peril, does not affect the question of the care to be used by a railroad company, nor the degree of care imposed by the law.</p>

<p>1. Instructions—Must be Based upon the Evidence.—In an action for a breach of contract conditioned that the plaintiff “ could come and take awa.y ’’ certain articles from the defendant’s premises, it is error to instruct that the defendant is liable for any of the property claimed to be withheld under the agreement, which was lost or destroyed, or not turned over under the agreement.</p> <p>2. Contracts—Construction—Gratuitous Bailee.—Under a contract providing that a party take his property out of a building occupied by another party, it was held that the other party is not liable for the loss or destruction of the property, not caused by his gross negligence. His liability is not greater than that of a gratuitous bailee.</p>

<p>1. Construction of Statcte--Meaning of Words—The. word “person ” or “ persons,” as well as all words referring to or importing persons, extend and may be applied to bodies politic and corporate as well as to individuals.</p> <p>2. County Board—May Make Complaint Against Persons Violating the Revenue Act.—The law of construction of words authorizes the county board to make complaint against persons violating Sec. 56, Ch. 120, R. S., entitled “ Revenue,” providing that if any person or corporation shall give a false or fraudulent list, schedule or statement, or shall fail or refuse to deliver to the assessor, when called on for that purpose, a list of the taxable personal property which he is requin d to list, he shall be liable, etc. The county board may properly make the complaint.</p> <p>3. Revenue Act—Violations—Complaint Not Jurisdictional.—The filing of the complaint for failing to comply with the revenue act is not a jurisdictional matter.</p> <p>4. Debt— When Proper Remedy for Penalties.—Where a penalty is imposed without direction as to the mode of procedure for its recovery, an action of debt is a proper remedy.</p> <p>5. Same—Praeticein Action of.—The action of debt requires the filing of a declaration to set forth the cause of action.</p> <p>6. Taxation — Fraudulent Devices to Avoid. — Where a person changed his money into greenbacks to avoid taxation, and deposited them in a bank, taking a certificate of deposit payable in current United States funds, the certificate was held liable to taxation.</p> <p>7. Same—Schemes to Avoid Taxation—Fraud.—Any device, makeshift or scheme to avoid paying taxes upon one’s property, is a fraud upon the revenue law.</p>

<p>1. Mutual Benefit Associations—Sick Benefits—Construction of By-Law.—Under an article of the constitution providing that the weekly benefits shall be $5 for each week for thirteen weeks during any twelve months, and no fractional part of a week will be allowed, provided, it was field, if the sickness is prolonged into different twelve months, the member is entitled to the same benefits as if he had two different sicknesses, one in each of such twelve months.</p> <p>2. Same—Constitution and By-laws Must Be Harmonious.—The constitution and by-laws should be construed so that, like the constitution and statutes of a State, they will harmonize.</p>

<p>1. Cities and Villages—Ordinances—Sale of Intoxicating Liquors. —An ordinance which imposes a license fee of $100 upon every wholesale liquor dealer, and defines this branch of the liquor business as the selling or giving away in quantities of five gallons or more, and declares that it shall not apply to any one holding a valid license for the sale of liquors in less quantities than one gallon, under an ordinance which imposes a license fee of only $500 for the latter privilege, is void for unjust discrimination, for the reason that the retail license can not be issued under the statute for less than $500, and consequently the retail dealer in such case pays nothing for the wholesale privilege, while others are charged $100 therefor.</p> <p>2. Same—No Power to Discriminate in Licensing the Sale of Liquors. —A municipal corporation can exact one license fee of those selling in less quantities than one gallon, and another and different fee of those sel ting in quantities of five gallons or more, without unjust discrimination.</p> <p>3. Same—Sale of Intoxicating Liquors.—A municipal corporation can fix a fee of more than §500 for persons selling liquor in any quantities, and a smaller fee for those selling in quantities of five gallons or more, and such a classification will be reasonable and within the protection of the law.</p>

<p>Memorandum.—Assumpsit on a promissory note. Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Memorandum.—Trover. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Common Carriers—Perishable Goods.—If a carrier undertakes to carry perishable property in vehicles specially adapted to preserve that kind of property, he becomes responsible for defects in such vehicles, if damage results.</p> <p>2. Interest—On Damages for Injuries to Property.—On assessing damages for injuries to personal property, it is error to allow interest on the amount of damage found.</p>

<p>1. Justice of the Peace—Jurisdiction Depends upon the Statute.— The-jurisdiction of a justice of the peace depends upon the statute, and it is acquired only in pursuance of it.</p> <p>2. Replevin—No Order for a Return of the Property, no Suit on the Bond.—Where there is no order for a return of the property on the dismissal of a replevin suit, there can be no recovery of damages for the taking or detention of the property, by a suit on the bond.</p> <p>3. Same—Affidavit to Confer Jurisdiction.—In actions of replevin to confer jurisdiction upon a justice of the peace, there must be an affidavit containing all the requirements of the statute.</p> <p>4. Same—If a Justice is Without Jurisdiction no Order for a Return can be Made.—In the absence of a proper affidavit, the justice has no jurisdiction, and can not issue a writ of retorno. All he can do is to dismiss the suit.</p> <p>5. Same—Sufficiency of the Affidavit.—It is a material averment of an affidavit in replevin that the property has not been seized under any execution or attachment against the goods and chattels of the plaintiff liable to execution or attachment. An affidavit in a replevin suit containing no such averment, is insufficient.</p> <p>6. Execution Lien—Not last by a Wrongful Taking.—The lien of an execution or writ of attachment is not lost if the goods levied on are wrongfully taken from the possession of the officer.</p> <p>7. Replevin Bond— Suit on, Not the Only Remedy.—The rule that a suit on a replevin bond is the only remedy of the defendant in a replevin suit has been applied only to the case of a replevy, at the suit of a tenant, of goods distrained for rent by the landlord.</p>

<p>1. Practice—When a Court Acquires Jurisdiction Over the Person— Trial, When.—As soon as the parties to a cause are brought or come into court, it has personal jurisdiction over them, and may, with their consent, proceed at once to try them cause. The fact that a case is brought to a certain term, that is, where the summons is made returnable at that term, does not deprive the court of jurisdiction to try the cause at a previous term, if all parties consent to such proceeding.</p> <p>2. Same—Defendant's Right to he Heard on Motions.—A defendant may, as soon as suit has been brought against him, appear therein, and is then entitled to be heard upon such motions as he may make.</p> <p>3. Attachment Proceedings—Rights of Defendants.—A party who resorts to attachment and thereby ties up the property of another must be ready at all times to maintain his writ whenever it is attacked. He must be ready for immediate trial.</p>

<p>1. Corporations—Admission of Corporate Existence.—The appearance of a defendant in a name which, not being the name of a person or persons, must, to be the name of a legal entity, be the name of a corporation, is an admission that such defendant is a corporation.</p> <p>2. Corporate Existence—Denial by Plea, When Necessary.—An appearance by a plaintiff as a corporation, is an assertion that it is a corporation, to be denied only by a special plea of nul tiel corporation.</p>

<p>1. Amendments op Pleadings—Leave to Amend.—Where a plaintiff amends his declaration the defendant is entitled to plead anew; but if, after leave, no such amendment is made, the refusal of the court to permit new pleas to be filed becomes immaterial. Leave to amend is not equivalent to an amendment.</p> <p>2. Practice—Striking Pleas from the Files.—Permission to strike out constitutes a striking out. Pleas stricken out are not actually removed from the files or erased; the leave itself makes them no longer a part of the pleadings in the case.</p> <p>3. Non-Joinder—Of Parties.—It is only by a plea in abatement that the non-joinder of a party can be taken advantage of by a defendant.</p> <p>4. Declaration—Defective—When Good After Verdict.—In an action of assumpsit where it was alleged in the declaration that a purchase was made, from which a promise to pay is implied, a verdict will not be set aside because no promise to pay is specially alleged in the pleadings.</p> <p>5. Variance—When Not Material.—The fact that the proof shows the goods were sold to two, while the allegation is that they were sold to one, is not a material variance. -</p> <p>6. Practice—Joinder of Plaintiffs.—It is an imperative rule that all living promisees whose interests are joint, be joined as plaintiffs. If it appear upon the record that there is another promisee who ought to have been joined as a plaintiff the judgment will be arrested. And if a promise is to two or more persons jointly, they must all, if living, join in the action or the plaintiff will be non-suited upon the trial.</p> <p>7. Same—Action Against Partners.—If an action be brought against one partner' on a partnership account, the defendant may plead the partnership in abatement; he can not, upon the general issue, defeat the action by showing the partnership in evidence.</p>

<p>Memorandum.—Error to the Circuit Court of Cook County; the Hon. Thomas Gr. Windes, Judge, presiding.</p>

<p>Memorandum.—Action on the case for goods wrongfully taken. Error to the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>Memorandum.—Bill to contest a will. Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Memorandum.—Action for deceit. Appeal from the Circuit Court of Cook County; the Hon. Thomas Or. Windes, Judge, presiding.</p>

<p>1. Delivery—What is Sufficient.—An order upon the bailee, in whose custody the property in question is, to deliver it to a person named in the order, the order being delivered to the agent of such person, is a good delivery.</p> <p>2. Special Agents—Acts in Excess of Authority.—Where an agent received an order to buy a load of cattle for his principal, and bought two loads, one of which he shipped to his principal, and the other he embezzled, it was held, that by the purchase of one load his authority to buy was exhausted, and if it appeared that the load shipped to his principal was purchased before buying the second load, then the principal acquired no property in the cattle purchased after the agent’s authority was exhausted,</p> <p>3. Principal and Agent—Of Two Innocent Persons Which Should Suffer. —Where property is purchased by an agent with a fraudulent intent to apply it to his use, and does so, contrary to the authority received from his principal, as between him and his principal the latter will neither be bound nor acquire any property by it, while the seller may be able, as an innocent party, to hold the principal for the price, upon the ground that both being equally innocent, the principal having put it in the power of the agent to defraud, is the one who must suffer.</p> <p>4. Forged Orders—Delivery of Property—Custom.—Where property is delivered upon a forged order, the person making the delivery is not protected by it, and is liable for the value of the property. Custom can not make valid a delivery upon a forged order.</p> <p>5. Rescission—Of Contracts May Be Inferred—Effect of.—Contracts may not only be rescinded by mutual consent, but a rescission may be inferred from the conduct of parties. By rescission each party is remitted to his original right.</p> <p>6. Trover—What Necessary to Maintain.-—To maintain the action of trover the plaintiff must have, at the time of the conversion, a complete property, either general or special, in the property, and actual possession of a right to immediate possession.</p>

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

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

<p>Memorandum.—Appeal from the Circuit Court of Cook County; the Hon. Thomas Gr. Windes, Judge, presiding.</p>

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

<p>1. Chancery Practice—Waiving the Right to a Discovery.—Where a complainant in chancery waives the oath of a defendant to his answer, he disclaims his right tó a discovery from him.</p> <p>2. Fraud—Requisites of a Bill Praying Relief from Fraud.—To sustain a bill for relief on the ground of fraud, something more than a mere allegation made upon information that fraud has been committed, is required.</p> <p>3. Same—Laches.—Where a party during the time covered by certain transactions, received statements showing the transactions made for him, and rested contentedly in reliance upon such statements for more than six years after the last payment of money on account of such transactions, and nearly ten years from the time the dealings were begun, and almost five years from the expiration of the period during which they occurred, he is guilty of laches.</p>

<p>1. Witness—Rules for Determining Credit.—The “credit” to be given to the testimony of a witness depends upon his ability and opportunities to know what occurred and his disposition to tell the truth.</p> <p>2. Same—What is Entitled to the Greater Weight.—It is error to instruct the jury that the statement of a witness having superior opportunities for knowing what took place and superior intelligence and memory, other things being equal, is entitled to the greater weight.</p> <p>3. Same—Interest in the Result.—The interest of a witness in the result of a suit is not necessarily one of the tests for determining his credibility. His interest is a matter that may be taken into consideration. Nor can it be said as a general rule that a witness who is interested in the result of a suit will not be as honest, candid and fair in his testimony as one who is not.</p> <p>4. Instructions—Assuming Facts.—In an action for work, labor and services, it is error to tell the jury that the plaintiff charged the defendant a certain sum for doing the work where the amount charged is in dispute.</p> <p>5. Error—Will Not Always Reverse.—Where the instructions in a case, though erroneous, have not misled the jury, and it appears that substantial justice has been done, the judgment will not be reversed.</p>

<p>1. Garnishment—The Verdict Must Respond to the Issues.—Unless the verdict responds to the issues no judgment can be rendered upon it. If it varies from the issues in a substantial matter, or if it find only a part of that which is in issue, it is bad.</p> <p>2. Same—The Rule Applied.—In garnishment proceedings the garnishee answered the interrogatories denying any indebtedness whatever, and all contractual relation out of which any indebtedness might arise, and to his answer the plaintiff in the garnishee suit filed a general repliation. Six years afterward the case was tried, the jury returning a verdict reading : “We the jury, find that there is now due and owing from the garnishee, S. E. G., to the plaintiff, M. O. S.,” etc. The verdict was held bad as not responding to the issue.</p> <p>3. Verdicts—Surplusage Does Not Vitiate.—If the jury find the issue and something more, the latter part of the finding will be rejected as surplusage; but this rule does not apply to a case where the facts found in the verdict are substantially variant from those which are in issue.</p> <p>4. Same—Substance, Not Form.—It is not necessary that the verdict should conclude formally to the words of the issue, but the point in issue must be capable of being ascertained out of the finding.</p> <p>5. Jury—Duty in Finding a Verdict.—It is the duty of the jury to respond to the question of fact submitted to them by the pleadings. Finding a matter which is not in issue, can have no legal effect or validity.</p> <p>6. Same—Must Respond to all the Issues.—Juries must, by their verdicts, respond specifically to all the issues made by the pleadings. If they omit any one, their verdict will be set aside, or if judgment be rendered thereon it will be erroneous.</p>

<p>Memorandum.—Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>Memorandum.—Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding.</p>

<p>Memorandum.—Bill to remove a cloud upon title. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>1. Negligence—Controverted Questions of Fact.—In actions for personal injuries, controverted facts, such as whether the deceased was struck while on the highway crossing, or while trespassing on the right of way, are questions for the jury.</p> <p>2. Railroad Companies—Street Crossings—Gross Negligence.—At a place in the suburbs of a populous city (Chicago), where a public street is crossed at a grade by six railroad tracks, used by three great railway systems, it is gross and wanton negligence to operate a railroad without any guard or protection to a traveler whose pleasure or duty might require him to go over the crossing in the night time.</p> <p>3. Damages—$5,000 Not Excessive.—A person was struck by an engine and killed upon a railroad crossing; he left a widow and two children, aged nine and twelve years respectively. He was a laboring man and earned $1.50 a day. It was held that $5,000 was not excessive.</p> <p>4. Same—Elements of Damages—Death from Negligent Act.—In an action to recover damages resulting from death by negligent acts, the value of the services of the deceased in the superintendence, attention to and care of his family and the education of his children, are proper elements of damages.</p>

<p>Memorandum.—Assumpsit and set-off. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Bill of Exceptions—Agreement To Have the Original Incorporated in the Transcript.—An agreement in the words and figures following, “ It is hereby stipulated and agreed by and between the parties hereto, and their respective attorneys, that the original bill of exceptions may be incorporated in the record in said cause in lieu of a copy thereof,” is a mere stipulation that the original bill of exceptions shall be a part of the record of the cause as it stood in the Circuit Court and is not a compliance with the statute. Sec. 68, Chap. 53, entitled Fees and Salaries.</p>

<p>1. Libel and Slander—Pleading—Innuendo Can Not Perform the Office of a Colloquium.—An innuendo can not perform the office of a colloquium, nor can it extend the meaning of defamatory matter unless by reference to matter of inducement.</p> <p>2. Libel--What is, Under the Statute.—The statute makes it unlawful to post or distribute any written notice with the malicious intent wrongfully and wickedly to injure the person, character, business, employment or property of another.</p> <p>8. Same—Sufficiency of Declaration.—The declaration averred that the defendant unlawfully and maliciously intended to injure and destroy the business of the plaintiff; such is not the language of the statute. Tinder it. the malicious intent must be “ Wrongfully and wickedly to injure.” A publication to be unlawful and actionable, must be within the terms of the statute.</p> <p>4. Same—Not Actionable in Itself.—A person with or without reason, may refuse to trade with another; so may ten or fifty persons refuse. An individual may advise his neighbor or friend not to trade with another neighbor; he may even command when the command amounts only to earnest advice. It is not an unlawful interference with the trade of another to advise people to deal with his competitor, or to decline to do business with him, nor is it unlawful to combine to raise the rate of wages.</p> <p>5. Same—A Publication Not Actionable per se.—The following publication is not libelous per se.</p> <p>“The Chicago Live Stock Exchange,</p> <p>Office of Secretary.</p> <p>To Members of the Exchange :</p> <p>You are hereby directed not to employ Mr. J. D. U-, in the live stock commission business, or to transact any business with him at the Union Stock Yards of Chicago, Illinois, until you are notified that the said U-, has settled with Messrs. K- & S., for twenty head of cattle, bought of them on the 35th of January, A. D. 1893.</p> <p>The Board of Directors of the</p> <p>Chicago Live Stock Exchange,</p> <p>By C. W. B-, Secretary.”</p>

<p>Memorandum.—Assumpsit. Error to the Circuit Court of Cook County; the Hon. Thomas Gh Windes, Judge, presiding.</p>

<p>Memorandum.—Bill for injunction. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Recokds—“ That WhiehDottiNot Appear Doth Not Bcmst.”—Where the clerk of the Circuit Court has certified a complete transcript of the record below, and in it is no plea, it must be taken as true that no plea was ever in the case, and that, notwithstanding the judgment entry says “ issues being joined” there never was an issue.</p> <p>2. Pleading—Averring a Duty.—An averment of a duty without stating facts from which the law will imply the duty, is insufficient; and where the issues have been joined on such an allegation the objection is good after verdict in arrest of judgment,</p>

<p>1. Appellate Court Practice—Cases Held Pending Decisions of the Supreme Court.—Where a case is held pending a decision of the Supreme Court, involving the same questions, judgment will be entered as of the date the case was submitted.</p>

<p>1. Master and Servant—Contributory Negligence—Where it appears that if there was any negligence on the part of the master, it was negligence of which the servant had knowledge, there can be no recovery of damages.</p>

<p>1. Personal Injuries—Exercise of Ordinary Oare to Be Shown.—It is indispensable in an action to recover damages, occasioned by the neglect of another, that the exercise of ordinary care by the injured party be shown.</p>

<p>Memorandum.—Action for malicious prosecution. Error to the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Practice—Void Rule to Answer.—A.rule to answer the petition made in the same order granting leave to file it, but directed to none of the parties to the suit, is void, and a default for want of answer to the petition is not warranted.</p> <p>2. Same—Issues to be Determined upon Evidence.—Where an answer denying all the material allegations is filed to a petition for an order, an issue of fact arises upon which the right to the order depends, and it is error to grant the order without hearing evidence.</p>

<p>Memorandum.—Bill to foreclose trust deed. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Eminent Domain—Where Condemnation Pt'oceedings Do Not Lie. —Condemnation proceedings do not lie for mere damage, if no property is taken.</p>

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

<p>1. Record—Stipulation as to Bill of Exceptions.—A stipulation that the bill of exception smay be made a part of the record accomplishes nothing; the bill of exceptions is a part of the record without a stipulation.</p>

<p>1. Waiver—Abandoned Issues. —Where the court, over objections, permits the introduction in evidence of matters foreign to the issue and then strikes the same out, and later on in the trial the other party introduces evidence of the same matter, it is held following up an abandoned issue, and is to be regarded as a waiver of the objections.</p> <p>2. Measure of Proof—Requisites of a Recovery.—In an action for damages resulting from a death caused by negligence, the declaration alleged as next of kin of the deceased, the father, mother, two brothers and five sisters. Only the father and mother were proved. Held, sufficient to sustain a recovery. It is only necessary to prove a part of the declaration, if that part makes a case.</p>

<p>1. Freehold—Where Involved.—A freehold is involved where the title is so put in issue by the pleadings that the decision of the case neccessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other losing the estate.</p>

<p>Memorandum.—Assumpsit for money had and received. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Memorandum.—Assumpsit for goods sold, etc. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Instructions—Should Omit Nothing Material.—An instruction which assumes to embrace every element essential to a recovery, should omit nothing material.</p> <p>2. Same—Should, Not Be Misleading.—An instruction which tells the jury that the defendant must prove his set-off by a preponderance of evidence, and if he has failed “ then the jury have a right to disregard the same and find for the plaintiff the amount, if any, shown to be due him,” etc,, is misleading, as it might be understood by the jury that the plaintiff was entitled to recover because the defendant failed to prove his set-off by a preponderance of the evidence.</p>

<p>1. Appellate Court Practice—Bill of Exceptions—Transcript of the Record.—Where the original bill of exceptions is brought to the Appellate Court under a stipulation that it may be inserted in the record, instead of in the transcript of the record as the statute requires, the court will not review matters appearing in it.</p>

<p>Memorandum.—Assumpsit for services. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Amendments—The Proper Practice.—The proper practice is to present the proposed amendment at the time leave to file it is asked, but the court in its discretion may give leave to amend at a future time.</p> <p>2. Same—Rule to Plead to.—It is not proper to rule a party to plead to an amendment not on file and which may never be filed.</p> <p>3. Default—With a Plea on File.—A plea "which answers any declaration that may be made in the case applies to all amendments, and it is error to enter a default with such a plea on file.</p>

<p>Memorandum.—Assumpsit for broker’s commission. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Memoraadinn.—Action for personal injuries. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>Memorandum.—Assumpsit on a promissory note. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

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

<p>1. Tax Sales—Theory Upon Which They Are Made.—The theory upon which a tax sale is made is that the buyer will take as small a portion of the property offered as is equal in value to the amount of taxes due, and the owner is entitled to have a fair opportunity given to buyers to bid. As much time should be given to bidders in making tax sales as in other public auctions; the rules governing both are the same.</p> <p>2. Chancery Practice —Entering Decrees.—It is upon the pleadings and the findings of the master that the court acts in rendering its decree. A party failing to file with the master his objections to the report and his exceptions with the court, can not, after decree, be heard to urge that the proofs do not sustain the report or decree.</p> <p>3. Appellate Court Practice— Objections Must be Made in the Court Below.—Objections not taken in the court below can not be made in the Appellate Court.</p>

<p>Memorandum.—Assumpsit, originally brought before a justice of the peace. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>Memorandum.—Creditor’s bill, etc. Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding.</p>

<p>Memorandum.—Assumpsit on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>Memorandum.—Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>Memorandum.—Bill for injunction and relief. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>1. Common Counts—W7ia£ is Recoverable Under Them.—When the terms of a special contract have been so far performed that nothing remains but a debt or duty to pay money, the amount due may be recovered under'a general count.</p> <p>3. Money Had and Received—27te Action for, When it Ides.—The action for money had and received may be maintained, whenever the defendant has obtained money of the plaintiff, which in equity and conscience he had no right to retain.</p> <p>3. Special Contract— Under the Common Counts. —However special the contract is, if not under seal, and the plaintiff has performed it, and the defendant received under it the benefit for his own use, an appropriate common count will be sufficient as a declaration.</p> <p>4. Partnership—When it Does Not Exist.—Where a transaction engaged in is but a single adventure, in which there is no property and no element of loss, the elements necessary to constitute a partnership in the legal sense of that term are wholly lacking.</p>

<p>atem.oran.dmn.—Forcible detainer. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Quo Warranto—Allowance of Writ Exhausts Discretionary Power of the Court.—When the writ of quo warranto has been allowed, the discretionary power of the court or judge granting it is exhausted, except when the order is made under a misapprehension of some material fact, but for which the order would not have been made.</p> <p>2. Same—When Granted Under Misapprehension of Facts.—Where the writ has been granted under a misapprehension of facts it is competent for the court to vacate the order granting it at any time during the term.</p> <p>3. Same—Practice Where the Writ Has Been Properly Granted.— Where the writ has been granted without any such misapprehension, the issues of fact and of law presented by the pleadings must be tried and determined in accordance with the rules of law in the same manner and with the same degree of strictness as in ordinary cases.</p> <p>4. Same—Practice—Mode of Instituting the Pleadings.—The mode of instituting quo warranto proceedings is usually for the state’s attorney to submit a motion based on affidavits for leave to file an information in the nature of quo warranto. A rule nisi is made on defendant to show cause why the information should not be filed. The respondent may answer the rule by counter-affidavits.</p> <p>5. Same—Leave Not Granted asa Matter of Course. -^-The general rule is, that leave to file an information is not to be granted as a matter of course, but depends upon the sound discretion of the court and the circumstances of the case.'</p> <p>6. Same—Not a Private Remedy.—If a wrong is done by the abuse of a franchise, it is a public wrong, and a proceeding by quo warranto must be had by the public prosecutor or other authorized agent of the State. A private citizen can not in such cases have the aid of this extraordinary remedy.</p> <p>7. Same—Authority of Attorney-General.—The authority of the attorney-general or state’s attorney to file an information affecting public rights only, must be in his official capacity under a sense of official duty, and not merely the lending of his name for the use of a private party. The proceeding must be official in fact, and not simply official in form, but private in fact.</p> <p>8. Same—Abuse of the Process.—The Circuit Court, in the exercise of its discretion, is authorized to take into consideration the circumstances showing the character of the proceeding, and if satisfied that the purpose is merely to allow a private party to institute proceedings in a matter concerning the public alone, it is its duty to refuse to allow the information to be filed.</p> <p>9. Same—Statute of Limitations—Lapse of Time—Public Policy.— After a considerable lapse of time, public policy forbids that discretionary writs like those of quo warranto and certiorari should be granted. The right to file the information should be refused on the ground of public policy where there has been such a lapse of time that a wrong would be done in granting the writ.</p> <p>10. Same—Not a Remedy for Purpresture.—Quo warranto is not a remedy for purpresture. A judgment of ouster will not take down a structure, nor can one of seizure pass the property in it to the State.</p> <p>11. Cities and Villages—Power To Grant Use of Streets for Railroad Purposes.—A city council has the power to grant the use of a street for railroad purposes, when, in its judgment, the public good demands it; subject, however, to the provisions of the law requiring the consent of property owners.</p> <p>12. Corporations—Ultra Vires—Waiver by State.—Where a corporation, by the exercise of powers not conferred by its charter, does no private injury and commits an offense against the public alone, the State may punish or waive the right to do so, as in the judgment of those intrusted with the appropriate power in that respect, may be deemed most hi consonance with the public interests.</p> <p>13. Vacation—Power of Judges in.—A judge in vacation, making an order, can not, in vacation, set it aside, since in vacation the judge has no other judicial power than that given him by the statute.</p> <p>14. Term Time—Powers of Judges in.—In term time, the court has generally, so long as the proceedings are in fieri, the power to undo anything that has been done in the case, whether by the same or by another judge.</p>

<p>1. Defenses—Former Suit Pending.—Where a wife in a bill for divorce states that she once before filed a bill for the same purpose, which “ she consented to dismiss,” but whether she ever did dismiss it her bill does not state, and in his answer the husband “ denies each and every allegation therein contained except as to the fact of said marriage having taken place between these parties,” no record of any former suit being in evidence, it is not a sufficient showing of a former suit pending.</p>

<p>1. Mistakes—Measure of Proof.—The proof to establish a mistake in a material part of a contract ought to be free from suspicion, clear and convincing.</p>

<p>1. Non-Suit—When the Trial is Without a Jury.—When a case is tried by the court without a jury a party may take a non-suit at any time before a note has been made of the finding of the court.</p>

<p>1. Appellate Court Practice— Objections Must be Made in the Court Below.—It is too late to raise the objection for the first time in the Appellate Court that there is no evidence to support certain material allegations of the declaration.</p>

<p>Memorandum. — Assumpsit for wages. Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding.</p>

<p>1. Appellate Court Practice—Improper Briefs.—A. brief which asserts that the allegations of the bill are fully supported by the evidence but contains no reference to either record or abstract, and leaves the court to take the cousseTs word or grope, as best it can, through the abstract and record to ascertain what the truth as to the matters in dispute is, is not in accordance with the rules of the Appellate Court.</p> <p>2. Res Adjudicata—Former Decisions.—The fact that the allegations of the bill have been by this court declared to constitute a good cause of action does not make such allegations res adjudicata.</p>

<p>1. Error—In Instructions, When Not Material.—When the evidence will not warrant a verdict for a party, an error in the instructions is not material.</p> <p>S. Insolvent Debtors—Payment of Debt Before Maturity.—An insolvent debtor, abandoning hope, may pay one creditor whether his debt has matured or not, and be guilty of no fraud, though the effect be that nothing is left for others.</p>

<p>1. Verdicts—Against the Preponderance of the Evidence.—Where the verdict is against the great preponderance of the evidence, it must be set aside.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Deeds—Delivery.—W. executed and placed in the hands of his brother E. a deed of land to his father, to whom he was indebted, but in trust for his mother, with instructions to E. to carry it in his pocket, and if he (W.) got well, return it to him; but if he did not get well, to put it on record. E., contrary to instructions, put it on record a few days prior to his brother’s death. It was held that the transaction did not amount to a delivery.</p> <p>3. Attachment—IPro.ud as a Ground.—The fraud for which an attachment will lie is fraud in fact. The debtor must have intended an actual fraud.</p>

<p>1. Interest—What it is.—Interest may be defined to be a compensation usually reckoned by percentage for the loan, use or forbearance of money. Interest in actions at law arises from the statute. At common law it was synonymous with usury.</p> <p>2. Same—Vendee of Real Property in Possession—Rents and Profits— Purchase Money.—The general rule in equity is that a vendee who has taken possession of real property under a contract of sale can not have the rents and profits arising from such possession without paying interest upon the purchase money where it remains in his hands.</p> <p>3. Same—In Equity.—Interest, in equity, is allowed because of equitable considerations. Equity follows the law, and ordinarily, if it gives interest it does so because, under the statute, the party is entitled to it; but a court of equity, subject to rules of law, gives or withholds the interest as, under all the circumstances of the case and the law applicable thereto, it deems equitable and just.</p> <p>4. Same—When a Purchaser Will be Compelled to Pay in Equity.— Equity considers that which is agreed to be done, as actoally performed, and a purchaser is, therefore, entitled to the profits of the estate from the time fixed upon for completing the contract, whether he does or does not take possession; and as from that time, the money belongs to the vendor, the purchaser will be compelled to pay interest.</p> <p>5 Same—Delay by Default of Vendor—Purchase Money “ Lying Dead.”—If delay is occasioned by the default of the vendor, and the purchase money has lain dead, the purchaser will not be compelled to pay interest. The purchaser must, however, in general, give notice to the vendor that the money is lying dead.</p> <p>6. Same—When Purchase Money is Not Considered as Lying Dead.— If the money is not actually and bona fide appropriated for the purchase, as if the purchaser derives any advantage from it, or in any manner makes use of it, he will be compelled to pay interest.</p> <p>7. Same—The Rule at Law—Money Not Due,—At law, interest is not recoverable because of the withholding of money which by the terms of a contract is not due, but in contracts for the sale of real property, equity proceeds upon the principle that it is not just for a vendor to have the use and enjoyment of the premises and also the purchase money, at the same time, atid consequently allows the vendor to recover .interest.</p> <p>8. Specific Performance—Conveyance Must Correspond with the Contract.—Where a person entered into a contract with another for the sale of real property conditioned upon the payment of the purchase price to convey the property by a deed with covenants of warranty, the party purchasing is entitled to a deed of conveyance in fee simple, absolute, with covenants of warranty, and without defeasance or qualification, on the payment of the purchase price fixed in the contract. The vendor can not insert in the deed provisions continuing in force or otherwise, giving effect to special provisions of the contract, unless it'is so stipulated.</p>

<p>Memorandum.—Death by negligent act. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding.</p>

<p>Memorandum.—Assumpsit on building contract. Appeal from the Superior Court of Cook County; the Hon. George F. Blanks, Judge, presiding.</p>

<p>1. Fraudulent Representations—Negligence and Inattention.—The law will not extend its protection to those who, through negligence or inattention to their business, suffer an advantage to he taken of their credulity.</p> <p>2. Same—Relief in Equity.—It is not for every losing bargain that a. court of equity will interpose its relief. It is only such representations as a man of ordinary prudence will be likely to rely upon, which can be a ground of relief in equity.</p> <p>3. Same—Must be of Existing Facts.—Fraudulent representation in sales must be of existing facts, material to the value of the thing bought, and not mere prophesy.</p> <p>4 Vendor and Vendee—Statements as to Value.—Statements as to value of property are not as a rule representations of such a nature that a vendee can rely thereon, and hold the vendor to make the same good. To this rule there are exceptions, as, in the sale of goods by an expert, statements in respect to them and their value, made to one whom the •vendor knows to be unacquainted with such value, and whom he is aware relies upon the truthfulness of such statements, are representations which the vendor is bound to make good.</p> <p>5. Same—Ignorance of the Vendee Known to Vendor.—Where the vendee is wholly ignorant of the value of property and the vendor knows this, and also knows that the vendee is relying upon his representations as to the value, and such representations are not a mere expression of opinion, but made as statements of facts, which the vendor knows to be untrue, such statements are representations by which the vendor is bound.</p>

<p>Memorandum.—Bill for an injunction. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>1. Family Expenses—A. Diamond Ring.—A. ruby and diamond ring is not a family expense, such as a wife may indulge in at the expense of her husband and against his will.</p>

<p>1. Practice&emdash;Failure to File Affidavit with Plea, etc.&emdash;On the trial in the Circuit Court of an appeal from a justice of the peace, the plaintiff having filed an affidavit of his claim before the justice, the defendant, although he files no affidavit of merits, is still entitled to make any defense going only to reduce the damages.</p>

<p>Memorandum.—Trespass for false imprisonment. Error to the Superior Court of Cook County; the Hon. George H. Kettelle, Judge, presiding.</p>

<p>1. Corporations—Directors’ Meeting—Notice, etc.—Under the statutes of Illinois, the by-laws of every corporation must provide for the calling of meetings of directors, but when all - the directors are present at any meeting, however called or notified, the acts of such meeting will be as valid as if legally called and all directors notified.</p> <p>2. Same—Motive for Calling a Meeting Immaterial.—The question of the ulterior motive in the calling of a directors’ meeting is wholly immaterial.</p> <p>3. Same—Deposing an Officer.—The action of a directors’ meeting in deposing an officer and substituting another in his place is within the authorized power of the directors. The motives for such an action, the action itself being lawful, is not a subject of judicial inquiry.</p>

<p>Memorandum.—Assumpsit on mutual benefit association certificate. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>Memorandum,—Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>Memorandum.—Proceeding to enforce sub-contractor’s lien. Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding.</p>

<p>1. Interest—Money Due on Writings.—Money due on an instrument of writing bears interest.</p> <p>2. Instructions—When a Party Can Not Complain.—A party can not complain of an instruction given on behalf of his adversary where a similar one has been given at his own request. If he has encouraged the court to give an instruction wrong in principle, he can not be heard to complain.</p>

<p>1. Owner of Premises—Duty to Guard the Same.—The law imposes no duty upon the owner of premises to so guard them that persons who for their own purposes go upon the same shall receive no harm.</p>

Memorandum.&emdash;Motion to vacate judgment by confession. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Copy of the note upon which judgment was entered: Chicago, Oct. 1, 1893.

<p>1. Negligence—By Omission.—Negligence by omission can only exist where a duty is not performed.</p>

<p>Memorandum.—Bill of interpleader. Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding.</p>

<p>Memorandum.—Appeals from the Criminal Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>Memorandum.—Replevin. Appeal from the Superior Court of Cook County; the Hon. George F. Blanks, Judge, presiding.</p>

<p>Memorandum.—Assumpsit for commissions. -Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Decree—Evidence to Sustain Must be Found in the Record, etc.— Where the record contains no evidence tending to support the conclusion of the decree, it must be reversed. The recital of a conclusion is not the finding of a fact.</p>

<p>Memorandum.—Action for damages. Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Contracts—Courts Enforce but do not Make.—Courts can not make contracts for parties, but can construe and enforce them.</p> <p>2. Interest—As Damages.—A recovery of interest in this State can not be sustained unless authorized by our statutes.</p> <p>3. Same—On Unliquidated Damages.—Our statute relating to interest does not authorize the recovery of interest on unliquidated damages for a failure to turn out property.</p> <p>4. Same—On Damages Not Ascertainable by Computation.—Where a contract to convey land is so indefinite in its description as to render it incapable of specific performance, and its value in money unknown, and there is no way in which the vendor can, before verdict, know even approximately how much he is liable for, the rule of permitting interest upon damages ascertainable by computation, or from well established market prices, can not be applied.</p> <p>5. Instructions—Submitting Questions of Law.—An instruction which states “ If the jury believe from all the evidence given in the case that the plaintiff is entitled to recover against the defendant, then,” etc., is erroneous, as it submits a question of law.</p>

<p>1. Husband and Wipe—Gifts.—In this State, subject to the rights of his creditors, a husband may give to his wife all the property he has.</p> <p>2. Same—Conveyances— Who Can Not Question.—A creditor whose debt is not contracted until after a conveyance by a husband to his wife, can not question the validity of the same.</p> <p>3. Estoppel—Binds Privies.—Where a person is estopped by his deed from claiming that property is his, a party who claims under him is bound by the same estoppel.</p>

<p>Memorandum.—Petition to have assignment declared void. Appeal from the. Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge,- presiding.</p>

<p>Memorandum.—Appeal from an order of the Circuit Court of Cook County, appointing a receiver; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Memorandum.—Garnishee proceedings. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Cook' County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Witnesses—The Statute Does Not Disqualify.—The statute allowing certain persons to testify does not disqualify, as witnesses, the parties to a suit. It has not created any disqualifications. Whatever disqualification of witnesses there is, either at law or chancery, exists by virtue of the common law.</p> <p>2, Same—Equity Jurisdiction,— Equity has no jurisdiction to enable parties to testify who are disqualified as witnesses by the law.</p> <p>3. Same—Co-Suitors at Law and in Equity.—At common law a party to the record in a suit at law can not be a witness for himself or a co-suitor, while in chancery a complainant or a defendant may examine a party to the record who is not interested on the side of the party calling him, in the matter concerning which it is proposed that he shall testify.</p> <p>4. Equity—Follows the Law.—Equity follows the law; it wdil not give a remedy in direct contradiction of a rule of law.</p> <p>5. Same—No Jurisdiction to JRemove Disabilities of a Witness.—A court of equity has no jurisdiction of a bill to enable a complainant to prove the facts constituting his defense to a suit at law in which he is a party defendant, his witnesses being incompetent for that purpose in a court of law.</p>

<p>Memorandum.—Attachment proceedings. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Assignment fob the Benefit of Cbeditobs—Contemporaneous Conveyances.—A person who is not a creditor can not maintain a bill to have contemporaneous conveyances of personal property declared an assignment for the benefit of creditors.</p> <p>2. Same—Partner of Assignee.—Where, two partners being insolvent, one made an assignment for the benefit of creditors, and the other, denying joint liability, made a trust deed of his individual property to secure the payment of his individual debts, it was held that a bill by his co-partner and assignee would not lie to have the deed declared an assignment.</p>

<p>Memorandum.—Confession of judgment. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Accidents—Negligence and Due Care—Questions for the Jury.— Under tbe circumstances usually surrounding an injury by a raiboad train, negligence and due care, and degrees and comparisons of negligence, are questions of fact for the determination of a jury. An interference therewith by a court of review is not warranted by law, unless it is apparent that the jury have disregarded then' duty.</p> <p>2. Testimony—Striking Out.—Where the legitimate effect of an answer to a question is not injurious to a party making a motion to ¿strike it out, denying the motion is not reversible error.</p> <p>3. Dangerous Agencies—Degree,of Care.—Where a party employs a dangerous agency in his business, he must exercise a degree of care commensurate with the dangers of the situation.</p>

<p>Memorandum.—Trespass quare clausum fregit. In the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Plea of liberum tenementum; replication; appeal.</p>

Memorandum.—Bill in equity to have the value of a lot of land in the city of Chicago on the 1st day of January, 1892, ascertained and fixed under the provisions of a lease. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.

<p>1. Attorney’s Fees—In Foreclosure Proceedings.—A person named in a trust deed as a successor in trust, is not thereby prohibited from acting as an attorney in foreclosure proceedings, and a decree allowing him the stipulated solicitor’s fees is proper.</p>

<p>1. Verdict—Instructions for Defendant.—If there is no evidence fairly tending to support the action, it is not error to.instruct the jury to find against the plaintiff.</p>

<p>Memorandum.—Assignment for the benefit of creditors. Intervening petition. Appeal from the County Court of Cook County; the Hon.' Frank Scales, Judge, presiding.</p>

<p>1. Contracts—Intent of the Parties in Construing.—The intent of the. parties is what the courts endeavor to arrive at in construing contracts. For this purpose a court will place itself in the shoes of the parties, that, viewing the subject-matter from their standpoint, it may be able to read the contract in the light under which it was consummated.</p> <p>2. Construction—Of Contracts—Conduct of the Parties.—The subsequent conduct of the parties to a contract in respect to the matters concerning which it treats, will be looked into as affording evidence of the meaning which the contracting parties themselves attached to it.</p> <p>3. Same—Understanding of an Adversary.—Where the terms of an agreement are open to construction, a party may be held bound to the understanding which he knew his adversary had of the contract, but the rule does not apply, if the contract is in writing and its terms unmistakable.</p>

<p>Memorandum.—Action for personal injuries. Error to the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Chancery Practice—No Presumptions in Favor of Decrees.—In chancery there are no presumptions in favor of the decree of the court below. The Appellate Court is supposed to have before it all that the court below had, except that where the decree recites the facts found, such recital will be presumed, in the absence of a certificate, to have been based upon sufficient; evidence.</p> <p>2. Same—Decree of Foreclosure Not Assignable.—A decree of foreclosure can not be assigned so as to substitute the assignee to all the rights of the complainant in the foreclosure suit. The remedy of the assignee in such a case is by a bill to carry into execution the first decree.</p>

<p>1. Lease—Covenants Attach to Assigns.—A person took to himself a lease of premises, for the purpose of erecting buildings thereon, containing covenants by which the rent to accrue was made a lien upon buildings and improvements that might be placed upon the premises, to yield possession at the end of the term “ in as good condition as when entered upon,” and also “not to remove any buildings or other improvements from said premises before the expiration of the lease, without written consent of ” the lessor, organized a corporation which erected a hotel upon the leased premises. It was held, that the covenants of the lease applied to the corporation, and to the extent of its right in the premises attached to the buildings thereon.</p> <p>2. Landlord and Tenant—Persons Holding by License of the Tenant —Subject to the Landlord’s Rights.—A tenant can not grant a privilege to erect buildings not subject to the lien for rent, which he could not himself exercise.</p>

<p>1. Instructions—'A Master as Insurer for Absolute Safety.—In an action for personal injuries, the contest being over the construction of a pulley, it is proper to instruct the jury that the defendant is not bound as an insurer for the absolute safety and suitability of the machinery and appliances furnished by him for use in his business. He is not bound to furnish the very best or most approved kind of machinery to be used in his factory. It is sufficient if the machine and the pulleys and appliances connected with the same are reasonably safe and suitable for the purpose for which they were used.</p>

<p>1. Usury—No Remedy in Equity.—Where a promissory note is alleged to be usurious and past due, an injunction will not lie to restrain its collection, as the defense can be made at law.</p> <p>2. Injunctions—Party Obtaining Must be Ready at all Times to Defend.—When a party obtains a temporary injunction, he is bound to be ready at all times to appear and maintain the same. The party enjoined has a right at any time to take steps to relieve himself from the restraining order. The party obtaining the injunction can not, by his failure to appear, delay a hearing asked for by a party enjoined.</p>

<p>1. Practice in Chancery—Aireepfions to Master's Report.—Exceptions to a master’s report are always to be confined to such objections as were allowed or overruled by the master,</p>

<p>Memorandum.—Petition for a lien under the general assignment act. Appeal from the County Court of Cook County; the Hon. Frank Scales, Judge, presiding.</p>

<p>Memorandum.—Judgment by confession. Error to the Superior Court of Cook County; the Hon. Georoe F. Blanke, Judge, presiding.</p>

<p>1. Sureties—Right to Require Holder to Proceed Against the Principal.—In certain cases a security on a negotiable note may notify the holder to proceed against the principal, on the maturity of the note, otherwise he can not compel the holder to proceed against others before proceeding against himself, and exhaust such other remedies as he may have.</p>

<p>Memorandum.—Assumpsit upon a check. Appeal from the Superior Court of Cook County; the Hon. John Babton Payne, Judge, presiding.</p>

<p>1. Assignments fob the Benefit of Cbeditoes—Assignee Takes Gum, One-re.—Where an assignment for the benefit of creditors is made, the assignee takes the property cum mere.</p> <p>2. Same—Expenses of Administration—Rent of Premises.—The rent of premises occupied by an assignee while winding up the affairs of the insolvent is a part of the expenses of administration, to be paid before distributing dividends to the general creditors.</p>

<p>1. Bills of Exceptions—Skeleton Forms—Exhibits.—If it is desired to incorporate an exhibit into the record, it must be properly made a part of the bill of exceptions. Using the forms (here insert exhibits, etc.) and fastening the exhibits to the margin of the sheet with pins, is not sufficient.</p>

<p>1. Practice—Giving Instructions in the Absence of the Parties.— After the jury had retired from the bar of the court and were considering their verdict, and after counsel for defendant had retired, a communication was sent by the foreman of the jury to the court, as follows : “ To the Judge:</p> <p>“ If the jury should find in favor of the plaintiff, should the damages be assessed up to the commencement of suit or up to the present time ?</p> <p>B. F. Latham, Foreman.”</p> <p>The judge wrote thereon the following words, viz.: “ Up to the present time,” and sent the same back to the jury. Held, not error.</p> <p>2. Damages—Ira Actions Quare Glausum Fregit.—When a wrongful act is done producing an injury which is not only immediate, but from its nature permanent, and must necessarily continue to produce loss, independent of any subsequent wrongful acts, the damages resulting, both before and after the commencement of the suit, may be recovered in one action.</p>

<p>Memorandum.—Assumpsit on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Mandamus—To Compel a Judge to Sign a Bill of Exceptions.— A writ of mandamus will lie to compel a judge to sign, a bill of exceptions, but it is for him to determine the accuracy of the matters to be incorporated in it.</p>

<p>Memorandum.—Assumpsit. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding.</p>

<p>1. Master and Servant—Duty of Master, etc.—The master is bound to use reasonable care in providing safe machinery, appliances, surroundings, etc., and the servant, in the absence of notice that- the machinery, etc,, is unsafe or defective, has a right to rely upon the discharge by the master of his duty in respect to these matters,</p> <p>2. Same—Duty of Servant.-—The servant Is bound to take notice of what is before him and obvious to his senses.</p> <p>3. SAME-What Defects the Master is Not Charged With.—The master is not charged with knowledge of defects which can not be discovered save by the exercise of extraordinary care. He does not insure the safety orsoundness of his machinery.</p> <p>4. Same—Master Presumed to Have Knowledge, ete.—The master is presumed to have a knowledge of the principles upon which his machinery works, and therefore of the consequences likely to arise from defects of which he has notice. If an accident arise from a defect of which he had notice, he can not say that he did not think the defect to be of any consequence.</p> <p>5. Same —Of What Notice d Servant is Chargeable.—A servant is chargeable with such notice of the character of what is apparent, as by his employment he assumes to have, or from his education or experience he actually has.</p> <p>6. Same—Relative Duty of Master and Servant.—The master is charged with the duty of exercising reasonable care to see that the machinery provided is safe, while the servant is only chargeable with notice of such things as by the exercise of reasonable care he would have known.</p> <p>7. Same—Where Notice of Defects Will Not Defeat Claim.—A knowledge of a defect, if the servant does not, or is not presumed to know it to be dangerous, will not defeat his claim foi; an injury caused by such defect.</p>

<p>Memorandum.—Trespass for taking chattels, etc. Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding.</p>

<p>1. Judgment by Confession—Waiver of Errors.—Judgment by confession having been entered against appellant upon a lease, he appeared and asked that it be set aside; the court allowed him to plead to the declaration. He then filed a demurrer, which, being- overruled, the court ordered that the judgment should stand as final, -unless the defendant should further plead. He elected to stand by his demurrer and prayed an appeal. It was held, that the cognovit filed in the case waived all errors.</p> <p>2. Same—Courts of Law Exercise Equitable Jurisdiction.—Courts of law exercise an equitable jurisdiction over judgments by confession, and on application to set such judgments aside some equitable ground should be shown.</p>

<p>Memorandum.—Assumpsit for labor and services. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>1. Judgments—Reversal of—Preponderance of Evidence.—The Appellate Court will not reverse judgments merely because upon reading the record the evidence does not seem to preponderate in favor of the party in whose favor the finding was; something more than this must be shown.</p>

<p>Memorandum.—Appeal from the Circuit Court of Cook County; the Hon. Thomas G-. Windes, Judge, presiding.</p>

<p>Memorandum.—Action for personal injuries. Error to the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding.</p>

<p>Memoríuidmn,—Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Memorandum.—Assumpsit. Error to the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding.</p>

Memorandum.—Appeal from an order overruling amotion to set aside a verdict and judgment rendered in the plaintiff’s absence by the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.

<p>Memorandum.—Bill for injunction. Eiyor to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

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

<p>1. Guaranty—Essentials of the Contract.—To put a party in the position of guarantor, it is essential that the person to whom the credit is to be given must himself be liable.</p> <p>2. New Trial—Motion for, •Confined to Grounds Stated.—Upon a motion for a new trial, assigning as the only ground that “ the judgment is contrary to the law and the evidence, affidavits of new witnesses are not admissible.</p>

<p>Memorandum.—Trover. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

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

<p>Memorandum.—Appeal from the 'Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>Memoramffliun.—Bill for relief. Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding.</p>

<p>Memorandum.—Trespass. Appeal from the Circuit Court of Cook County; the Hon. Thomas Gr. Windes, Judge, presiding.</p>

<p>1. Amendments —Discretion to Permit.—It is not error to allow the defendant to file a verified plea on the call of the docket for trial.</p> <p>2. Ratification—Subscription to Capital Stock.—Where a subscription to the capital stock of a corporation is made in the name of another without his authority, he may ratify it by making payments on the subscription; hut in a disputed case, whether such payments are made with full knowledge of the circumstances, and whether with intent to ratify it, or to buy his peace, is a question for the jury.</p>

<p>Memorandum.—Assumpsit on promissory note. Appeal from the Circuit Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>I. Administration of Estates—Jurisdiction of the Probate Court. —The jurisdiction of the Probate Court is ample and complete, to determine whether a person has a valid claim against a deceased person.</p>

<p>Memorandum.—Assumpsit. Error to the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding.</p>

<p>Memorandum.—Attachment. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Contracts—In Writing, Not to be Varied by Parol.—A contract in writing can not be varied or contradicted by parol, but a written instrument, to be a contract in writing, must set forth the undertakings of the parties to it so plainly, as to require neither parol testimony nor the promises or duties to ascertain the extent and force of the contract.</p> <p>2. Same—What is a Contract, etc.—A writing, to be a contract in writing, must set forth the undertakings of the parties so plainly as to require neither parol testimony nor the promises or duties which the law would imply from the facts stated in it, to ascertain its extent and force.</p> <p>3. Same—The Writing, Evidence of What the Contract is.—A written contract not under seal, is not the contract itself, but only the evidence of it; although where parties have deliberately reduced their contract to writing, such writing is the exclusive evidence of what the contract is.</p> <p>4. Same—Written Contract Defined.—A written contract is one which, in all its terms, is in writing.</p> <p>5. Same—Partly in Parol and Partly in Writing—A contract partly in writing and partly oral is, in legal effect, an oral contract.</p> <p>6. Same—To What the Rule Does Not Apply. —Unless the instrument is a written contract within the meaning of the law, the rule that parol evidence is incompetent to vary or contradict its terms, does not apply.</p>