Volume 57 — Illinois Appellate Court Reports

Memorandum.—Assumpsit. In the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Declaration on promissory note; plea of general issue; trial by the court; judgment for plaintiff; appeal by defendants. Heard in this court at the November term, 1894, and affirmed.

Memorandum.—In equity. Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding; settlement of partnership accounts. Heard in this court at the November term, 1894.

Memorandum.—Action for damages, resulting from changing the grade of a street. Appeal from the Circuit Court of Vermilion County. The Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1894, and affirmed.

Memoran dnin.—Proceedings in administration. Error to the Circuit Court of McLean County; the Hon, Thomas F. Tipton, Judge, presiding. Heard in that court on appeal from the County Court; the Hon. C. D. Myers, County Judge, presiding. Heard in this court at the November term, 1894, and affirmed.

Memorandum.—Assumpsit. In the Circuit Court of Pike County, on appeal from a justice of the peace; the Hon. Jefferson Orr, Judge, presiding. Trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the November term, 1894, and affirmed.

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

Memorandum.—Action of damages by fire. In the Circuit Court of Ford County; the Hon. Alfred Sample, Judge, presiding. Declaration in case; plea of not guilty and tender; trial by jury; verdict, “ We, the jury, find the issue of tender for the defendant, and find the defendant not guilty.” Judgment; appeal by plaintiff. Heard in this court at the November term, 1894, and affirmed.

Memorandum.—Error to the County Court of Moultrie County; the Hon. John D. Pervis, Judge, presiding. Heard in that court on appeal from a justice of the peace. Heard in this court at the November term, 1894.

Memorandum.—Assumpsit in the Circuit Court of Adams County; the Hon. Oscar P. Bonnby, Judge, presiding. Declaration on an agreement for the sale of real estate. The pleas are stated in the opinion; trial by the court; judgment for the defendants; appeal by plaintiff. Heard in this court at the November term, 1894, and affirmed.

Memorandum.—Action for personal injuries. In the Circuit Court of Sangamon County; the Hon. Robert B. Shirley, Judge, presiding; verdict for defendant by direction of the court; error by the plaintiff. Heard in this court at the November term, 1894, and affirmed.

Memorandum.—Trespass for killing domestic animals. In the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding. Trial by jury ; verdict and judgment for plaintiff ; appeal by defendant. Heard in this court at the November term, 1894, and affirmed. Statement of the Case.

Memorandum.—Action for killing a horse. In the Circuit Court of Christian County; the Hon. Robert B. Shirley, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for the plaintiff; appeal by defendant. Heard in this court at the November term, 1894, and affirmed.

Memorandum.—Action for damages from fires. In the Circuit Court of McDonough County, on appeal from a justice of the peace; the Hon. Charles J. Scofield, Judge, presiding; trial by jury; verdict and judgment for plaintiff; error by defendant. Heard in this court at the November term, 1894, and affirmed.

Memorandum.—Assumpsit. In the Circuit Court of Green County; the Hon. George W. Herdman, Judge, presiding. Common counts and plea of the general issue, except as to $40; trial by the court; finding and judgment for plaintiff; appeal by defendant. Heard in this court at the November term, 1894.

Memorandum.—Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1894, and affirmed. Statement of the Case. The appellee (plaintiff below) is a corporation under the laws of New York, engaged in the manufacture of insulated wire for electrical purposes.

Memorandum.—Foreclosure proceedings. Appeal from a decree entered by the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—In equity. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1894, and affirmed-. Statement of the Case.

Memorándum.—Action for personal injuries. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Assumpsit on an insurance policy. Appeal from the Superior Court of Cook County; the Hon. James Gogghn, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

<p>Memorandum.—Assumpsit. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at October term, 1894.</p>

<p>Memorandum.—In equity. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1894.</p>

Memorandum.—Appeal from, the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1894, and reversed in part with order. Statement of the Case.

Memorandum.—Trespass to real estate. In the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Declaration in trespass; plea of the general issue; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894.

Memorandum.—Bill of interpleader. Appeal from an order dismissing the bill for want of equity. Rendered by the Circuit Court of Cook County; the Hon. Richard S. Tüthill, Judge, presiding. Heard in this court at the October term, 1894.

<p>Memorandum.—Appeal from a judgment of the Circuit Court of Cool: County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1894.</p>

Memorandum.—Proceedings to enforce a mechanic’s lien. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Claim in probate based upon an appeal bond. In the Circuit Court of Cook County, on appeal from the Probate Court; the Hon. Edmund W. Burke, Judge, presiding. Trial by the court and claim disallowed; appeal by claimant. Heard in this court at the October term, 1894, and affirmed. Statement of the Case.

Memorandum.—Proceedings under the insolvent act. Appeal from the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Heard in this court at the October term, 1894, and affirmed. Statement of the Case. In 1888, the appellant, James G-. Dougherty, commenced an action in the case for malicious prosecution against appellee, Arthur A. Winter. A declaration on the case for malicious prosecution was filed in due time.

Memorandum.—Assumpsit on a contract in writing. ■ In the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Common counts and plea of the general issue; trial by jury waived; finding and. judgment for plaintiff; appeal by defendant. - Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Assumpsit for commissions. Appeal 'from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

<p>Memorandum.—-Garnishee proceedings. Appeal from the Circuit Court of .Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1894.</p>

<p>1. Practice—Suit Prematurely Commenced.—A suit prematurely commenced can not be maintained.</p>

<p>Memorandum.—Assumpsit on an accident policy. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the October term, 1894.</p>

Memorandum.—Proceedings under the voluntary assignment act. Appeal from the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Heard in this court at the October term, 1894, and affirmed. Statement of the Case. Herman Schaffner & Company, by A. G. Becker, the surviving partner, made an assignment June 3, 1893. Their indebtedness exceeded at that time §2,000,000.

Memorandum.—Motion to open a judgment by confession. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heal'd in this court at the October term, 1894, and affirmed.

Memorandum.—Action for personal injuries. In the Superior Court of Cook County; the Hon. George F. Blanks, Judge, presiding. Verdict for the defendant by direction of the court; appeal by plaintiff. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Action for libel. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1894, and affirmed. Statement of the Case. The declaration in this case alleged the filing of a bill in chancery by appellant against appellee, setting forth a large portion thereof, including a written contract, out of which the filing of said bill had arisen.

Memorandum.—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in that court on appeal from a justice of the peace. Heal'd in this court at the October term, 1894, and affirmed.

Memorandum.—Attachment proceedings and interpleader. Appeal from the Superior Court of Cook County; the Hon.'Henry W. Freeman, Judge, presiding. Heard in this court at the October term, 1894. Reversed and remanded.

Memorandum. —Bill for divorce. Appeal from a decree dismissing complainant’s bill rendered by the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1894.

Memorandum.—Assumpsit. In the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Declaration on an agreement to convey real estate; plea of the general issue; case submitted to the court without a jury; finding and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed. Statement of the Case. There is no dispute in regard to the facts in this litigation.

Memorandum.—Divorce and alimony. Error to and appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Two cases. Heard in this court at the October term, 1894, and affirmed.

<p>Memorandum.—Assumpsit for goods sold. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1894.</p>

Memorandum.—Appeal from an order of commitment for contempt of court in refusing to pay. alimony. Entered by the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1894, and reversed. Statement of the Case. This is an appeal from, an order of the Circuit Court adjudging the defendant guilty of contempt of court for a failure to pay alimony, and ordering the defendant to be committed to the county jail.

Memorandum.—Trespass for assault and battery. Appeal from the Superior Court of Cook County; the Hon. James Goo-gun, Judge, presiding. Heard in this court at the October term, 1894.

<p>1. Mechancis’ Liens—Sub-contractor.—Under Sec. 87, Oh. 83, R. S., entitled, “ Liens," it is a condition precedent to the maintenance df a suit by a sub-contractor, that money be due from the owner to the original contractor.</p> <p>2. Same—Extent of the Sub-contractor.—Under Sec. 29, Ch. 82, R S. entitled " Liens,” an owner can not be compelled to pay (with certain exceptions) more than the original contract price for a building.</p>

Memorandum.—Garnishment proceedings and interpleader. Appeal from the Superior Court of Cook County: the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Proceedings under the voluntary assignment act. Appeal from the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Assumpsit. In the Superior Court of Cook County; the Hon. Nathaniel C. Seabs, Judge, presiding. Declaration on policy of insurance. Pleas: (1) General issue. (2) That at the time of the loss of the property by fire, the building described in the policy of insurance was vacant and unoccupied, and that therefore the defendant is not liable. Trial by jury; verdict for defendant by direction of the court; error by the plaintiff.

Memorandum.—Injunction. Appeal from a decree of the Circuit Court of Cook County; the Hon. Thomas B. Windes, Judge, presiding. Submitted at the October term, 1894. Statement of the Case.

<p>1. Appellate Courts—An Appellate Tribunal Only.—The Appellate Couri has no power to render judgment upon what is presented merely as a state of facts agreed to by the parties. „ It reviews not the arguments or acts of individuals or litigants as such, but is vested with authority and sits only to review the judgments and orders of courts of record.</p> <p>2. Same—A Court of Review—Records.—Its province is to determine the correctness of the holdings of the court below. There must always be presented, to give it jurisdiction, the record upon which the court below acted. It is not sufficient for parties to stipulate what the record below was or what the record for this court shall be.</p> <p>3. Records—Can Not be Made by Stipulation.—A record for the Appellate Court can not be made by stipulation of the parties.</p>

<p>Memorandum.—Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1894.</p>

Memorandum.—Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Righakd S. Tuthill, Judge, presiding. Statement of the Case.

<p>1. Promissory Notes—Defenses Against Innocent Purchasers.—A defense that a promissory note is not the note of the person sued, is as available against a suit by an assignee before maturity, as against a suit by the payee.</p> <p>2. Same—Doubts as to the Maher.—If upon the face of a promissory note it may reasonably be inferred that it is either the official act of a corporation or the private act of an individual, extrinsic evidence is competent to determine the fact.</p> <p>3. Same—No Particular Form of Words Necessary—Custom.—While the law requires no particular form of words to constitute a promissory note, and designates no particular place at which the maker shall sign his name, yet custom has established a form of signing which furnishes a legal presumption of the intehtion of the parties and the character of the liability attaching to the signature.</p> <p>4. Same—Character of Maher—Sow Determined—Extrinsic Evidenoe.—If the name of the maker can be determined from the face of the instrument it must be done, but if not, then extrinsic evidence is competent and should be heard; but in determining the question the whole instrument should be inspected.</p> <p>5. Same—Signification of the Word “ We.”—The word “ we” in the body of the note indicating the promisor, may properly be employed to denote a corporation aggregate.</p> <p>6. Same—0/ a Corporation.— The note of a corporation may be signed with the name of the corporation, by its president, secretary or other officers authorized to execute it, or by the proper officers designating themselves officers of the corporation for which they assume to act, or using the corporate name both in the body of the note and in the signature to it.</p> <p>7. Same— Notes of a Corporation.—The following note held to be a corporate and not an individual obligation:</p> <p>“§493.92. " Chicago, July 22, 1893.</p> <p>Sixty days after date for, we promise to pay to the order of Richey, Miniter & McDonald Co., four hundred ninety-three 92-100 dollars at our office, 711 Unity Bldg.; value received. ”</p> <p>Columbian Athletic Club,</p> <p>Chas. J. Mikes, Dominick C. O’Malley,</p> <p>Treas. President C. A. Club.”</p> <p>8. Evidence—In Determining the Character of the Makers of a Note. —In determining the question as to whether a promissory note is a corporate or an individual obligation, the by-laws of the corporation are competent to show in what capacity the signers executed the note, and as to then intention to bind themselves individually.</p>

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Thomas B. Windes, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant.

Memorandum.—Action for rent. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Statement of the Case. These were actions in assumpsit brought by Fichólas V. Boddie, appellee, against William H. Barrett and Charles B. Barrett, copartners as Barrett & Barrett, appellants, as guarantors of a certain lease made by appellee to one Fie. Baquet.

Memorandum.—Assumpsit; attachment. Appeal from a judgment on the attachment issue rendered by the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1894, and affirmed. Statement of the Case. This was a suit brought by the American National Bank against the Chicago Refrigerating Warehouse Co., on a note of $1,500 which had been bought on April 2, 1890, from A. S. Hanford, the payee.

<p>Memorandum. — Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Thomas B. Windes, Judge, presiding. Submitted at the October term, 1894.</p>

Memorandum.— Assumpsit. In the Superior Court of Cook County; the Hon. George W. Blanks, Judge, presiding. Declaration, common counts; plea of the general issue; trial by the court; judgment for defendant; appeal by plaintiff. Heard in this court at the October term, 1894, and affirmed. Statement of the Case. This is an action of assumpsit. The declaration contains only the common counts for money had and received.

Memorandum.—In equity. Bill for injunction. Appeal from a decree rendered by the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Submitted at the October term, 1894, and affirmed.

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Declaration on an insurance policy; plea of the general issue; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed. Statement oe the Case. This suit is upon an insurance policy for $2,000, upon the life of Edward L. Sibley, payable to the appellee.

Memorandum.—Action for damages. Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Thomas Gr. Windes, Judge, presiding. Heard in this court at the October term, 1894, and affirmed. Statement oe the Case.

Memorándum.—Suit upon a guarantee bond. In the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed.

<p>1. Burden of Proof—Oro Him Holding the Affirmative.—The burden of introducing evidence on any issue is upon him who asserts the affirmative of that issue. So where the defendant admits the indebtedness to have once existed and pleads payment, he has the affirmative of the issue made by his plea.</p> <p>3. Credibility of Witnesses—For the Jury.—The question of the credibility of witnesses is one of fact for a jury, as for the court when a jury is waived.</p>

<p>Memorandum.—Assumpsit. Appeal from a judgment rendered by the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Submitted at the October term, 1894.</p>

<p>Memorandum.—Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Submitted at the October term, 1894.</p>

<p>1. Abstracts—Must Comply with the Rules.—The court is not required to determine from an imperfect abstract, either the merits of a case upon the facts or the correctness of the rulings of the court with reference to the admission of evidence or the giving of instructions.</p>

<p>Memorandum,—Assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Thomas B. Windes, Judge, presiding. Submitted at the October term, 1894.</p>

<p>Memorándum.—In the County Court on appeal from a justice of the peace; the Hon. Charles H. Donnelly, County Judge of McHenry County, presiding. Submitted at the October term, 1894.</p>

<p>1. Taxes—Erroneously Collected—Who May Recover.—When, by a mistake of the county clerk in extending the school tax of one district upon real estate lying in another district, the same having been collected, a bill does not lie by the latter district to recover from the former the amount of the tax so erroneously collected. The district is not the representative of the tax payers for the purpose of adjusting their equities.</p> <p>2. Equity Practice—One Suit for Many Persons (Waterman, J., dissenting).—When a large number of parties are interested in the same equitable relief, one suit may be maintained for all.</p>

<p>Memorandum.—Action for deceit. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the October term, 1894.</p>

<p>Memorandum.—Trespass. Appeal from the Superior Court of Cook County; the Hon. James Gogols, Judge, presiding. Submitted at the October term, 1894.</p> <p>Statement oe the Case.</p> <p>The defendant in error purchased of the plaintiffs in error certain goods, upon the monthly installment plan, and executed her notes, secured by chattel mortgage on the goods, for the deferred payments. The defendant in error paid the notes until some time in September, 1891; about the 7th of October she returned from a hospital. In the meantime several of the notes became due. The collector for Titcomb & Pratt, on said 7th day of October, called on Mrs. James to collect the money. Mrs. James called his attention to the alleged inferior quality of certain curtains and a folding bed, delivered to her by Titcomb & Pratt, and included in the bill of goods purchased from them, and insisted that the inferior goods be taken away and replaced with goods of the quality which she had purchased. The collector replied that he thought that Titcomb & Pratt would do as she requested, and promised to report the fact to the house; immediately upon receiving this report Mr. Titcomb sent Mr. Brewerton and another man, both employes and servants of Titcomb & Pratt, to the home of Mrs. James, with the mortgages, with instructions to go to Mrs. James and get the furniture.</p> <p>On calling at the house, Mr. Brewerton told Mrs. James that he was sent over after those goods and that he wished her to pay the notes which were past due.</p> <p>The testimony of the defendant in error, Mrs. James, as to what the account is, is as follows: She then said to them, “ You can not take all of the furniture; I am paying on the furniture and only want you to make good what is not good.” To which she testifies they replied that they had come for all the furniture and were going to take it. She replied, “ If Mr. Pratt was here he would not allow it.” • Mr. Brewerton said, “ Why don’t you get Mr. Pratt over here ? ” and said he would telephone for Mr. Pratt; and he went to the telephone and came back and told me that Pratt was coming; and then Pratt came and stepped to the parlor door and says to me, “ What do you mean by saying that we can not take this furniture from you ? ” I said, “ Mr. Pratt, I did not say that you could not take the furniture from me, because you have the power to do so if you wish to, but I am ready here to pay for the furniture. I will get the money now.” He said, “ I don’t want your money,” and swore atine. I said, “Well, Mr. Pratt, all I can do is to tender the money,” and I called two servants out of the basement to see me tender him the money. I said, “Here is $12,0; take $72, that is due you, out of this.” He said he would not do it; that I could go to the hot place with my money; he was "going to take the furniture. I said, “ Mr. Pratt, it is not right; you have no right to take this furniture from me.” He says, “ I will show you how we take furniture- when we come for it.” I said, “ I can not help myself and I hope you will not take it until I send for my attorney.” He told Mr. Brewerton to bring in the men, and Mr. Brewerton went to the door and there were three wagons with seven_ to ten men on them. The men came into the house and began to lift up the carpets. Mr. Pratt stepped out of the door and I went to shut him but. I thought if I could shut him out a minute, I could lock the men in until I had time to get a lawyer there. He pushed the door open and struck me on the side of the head with his fist, and I started down the hall and went into the back parlor and there was a bar of iron laying there, folded up, and I picked up the bar of iron and said, “ Don’t you come near to strike me again.” He pursued me and that is how I came to pick -up the bar of iron. Mr. Brewerton stepped up to me and struck me between the shoulders with his fist, and Mr. Pratt grabbed the piece of iron from me and I threw up my arms to protect myself. He struck me on the arm and I tried to pass him and he would not let me. I went through the parlor and he followed me and grabbed me by the dress and threw me against the wall and held me. My servant girl had gone for a policeman. The policeman came and asked Pratt what he was doing. He had hold of me at the time. The policeman said if he did not let go of me he would arrest him. Pratt asked him what authority he had to come in there, and he said he was an officer of the law and that he would show his authority. He asked Mr. Pratt what authority he had, and told him to show his authority. Pratt said, “ I will show you nothing of the kind;’’ and the officer said, “ If you have anything to show, and have any authority, let me see it.” He said, “ Have you shown her a mortgage with her name signed to it?” He said, “Ho;” and he says, “You should get the mortgage; show me your authority or I will take you to the station;” and he pulled out the mortgage then, and the policeman asked him if he had shown that to me before, and asked if that was my signature, and he said, no, he had not. The men at that time were locked in a room, and part of them were on the wagons. I had locked four of them in a room until I could get a lawyer, and after the policeman came in I went up and unlocked the door and turned the men out, and they came down and went out to the wagon. The officer said to Mr. Pratt: “ You have no right unless you have an officer serve this on her;” and I said to the officer, “ I have offered him the money; I have tendered him the money and asked him to leave my furniture here.” They were taking furniture that did not come from their house at all; furniture that was not covered by their mortgage; part of it had been moved out on the sidewalk at that time; when my attorney came he arranged and had it brought back inside; two pieces were brought back and some rugs; the purchase price of the furniture was about eight or nine hundred dollars. Some rugs and curtains and some crockery and a couple of four or five dollar wash stands, that did not amount to what I had paid, were left there when they went away. They took the other goods away. I was keeping roomers and boarders and doing dressmaking at that time. After I was injured I was not able to proceed with my business, and have never been able to use my hands very well since. I can not use the shears. I can use my hand, but can’t use the shears. I can not lift anything heavy. At that time I was able to earn with what boarders I had and roomers, probably three or four hundred dollars a month, including the dressmaking. I suppose I was able to make three or four hundred dollars a month.</p> <p>I purchased those goods from Titcomb & Pratt on the installment plan. There was $72 due, and I tendered him $120.</p> <p>The testimony of the plaintiffs in error (defendants below) as to what occurred after Mr. Pratt arrived at the house of Mrs. James is very different.</p> <p>During the trial a Avitness on behalf of the defendants beloAV as to Avhat occurred after the attorney for Mrs. James arrived at her house, testified as follows:</p> <p>Me. Bisbee : How was this amount to be paid % Objected to.</p> <p>The Court: I think I will sustain the objection to that; the assault or damage to the property or anything that occurred at that time, I will let you prove. To which ruling the defendants excepted.</p> <p>The Court:. I will let you show Avhat the value of the goods was, for the purpose of determining the damage to the personal property, the amount of the goods remaining and those taken aAvay.</p> <p>Mr. Bisbee : Suppose it should turn out to be a preponderance of evidence that there was no assault %</p> <p>The Court: Your witnesses SAvear that there was. To Avhich ruling of the court the defendants by their counsel excepted.</p> <p>The Court: You may be able to impeach your own Avitnesses. To-which remark the defendants excepted.</p> <p>The Court : If it should turn out that this property ivas taken away by force during this scuffle, we will hear the evidence.</p> <p>Witness : Mrs. James was to pay what was past due, between seventy and eighty dollars; it was to be paid when she signed the papers the next day; the notes were secured by a chattel mortgage; she was to pay them in twelve monthly installments.</p> <p>Mr. Bisbeb : I want to show that Mrs. James was to pay the $430.38 by executing monthly notes, and she was to pay cash the next day and sign the notes and a mortgage for that amount, and I want to show that they were prepared and presented to her for her signature by this Avitness.</p> <p>Objected to; objection sustained, to Avhich ruling of the court defendants excepted.</p> <p>The court at the instance of the plaintiff gave the folloAv-. ing instructions:</p> <p>8. If the jury believe from the evidence that the defendants in this case by their employes or servants under their direction, forcibly entered said premises without the permission of the plaintiff, and in a Avanton, insulting, willful and reckless manner seized and carried away said property, without the permission of the plaintiff, the jury are authorized to find exemplary or punitive damages; that is, such damages as will compensate the plaintiff for any Avrong to her, and to punish the defendants.</p> <p>9. If you find from the evidence that the defendants assaulted, beat and bruised the plaintiff, you may alloAv the plaintiff such damages, not exceeding the amount claimed in the declaration, as seems to you to be right and proper under all the facts and circumstances in the evidence. In estimating the damages for assault and battery, you have a right to consider the bodily and mental pain, if any, endured by plaintiff, and her diminished capacity for labor resulting from defendant’s wrongful act, if the evidence shows the. circumstances to exist. You may take into consideration the damages to her person by reason of said assault and the extent and duration of the same. You may also consider the injuries to her feelings by reason of any insult and indignity inflicted upon her person. It is not necessary to prove by witnesses the amount of damages resulting from personal injuries, but these are to be determined by you from your general knowledge and experience, and from all the evidence and circumstances of the case.</p> <p>12. If you find from the evidence in this case that defendants, or either of them, were assaulted by the plaintiff, and that when so assaulted, resisted such assault by-the plaintiff, and in so doing used no more force than was reasonably necessary to successfully resist such assault, then in that event the defendants are not guilty; but if you find from the evidence that the defendants, or either of them, in resisting such assault, used more force than was reasonably necessary to successfully resist such assault of plaintiff, and by so doing injured the plaintiff, then in that event, though you find the plaintiff first assaulted the plaintiff, you will find the defendants guilty.</p> <p>13. You are further instructed that assault and battery is where one wrongfully, maliciously, and in a rude; insolent, or angry manner touches, strikes, or beats another with the present ability to do bodily injury.</p> <p>16. If you find from the evidence that the plaintiff gave a mortgage to the defendants on certain household goods, and that afterward plaintiff was in default as to any one or all of the conditions of said mortgage, and remained so at the time of -the acts complained of in this action, then the defendants were entitled to take possession of said goods at the residence of the plaintiff, providing they could do so peaceably; but if they were unable to obtain such possession of said goods peaceably, then the only method by which they could obtain possession legally would be by an action for that purpose. And if you further find that the defendants attempted to take possession of said goods under the circumstances above stated, and in doing so they committed a breach of the peace, then they would be wrongdoers under the law, and if the plaintiff sustained any damages by reason of the wrong doing at the time, you would be warranted in finding a verdict for the plaintiff, and assessing her damages at such sum as you think proper under all the circumstances, and if you find in addition to the above facts that the defendants acted with malice, or in a wanton manner, then you would be warranted in' adding to the plaintiff’s actual damages such sum as you think proper by way of exemplary - damages.</p> <p>The jury returned a verdict of $10,000 against the defendants below, upon which there was judgment, and from which judgment they prosecute this writ of error.</p>

<p>Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presidr ing. Submitted at the October term, 1894.</p>

<p>1. Practice—Names of Actions.—A suit before a justice of the peace is not such an action as he may see ñt to call it. There being no written pleadings, it is what the evidence makes it. If the evidence is entirely concerning an alleged unlawful detention of personal property, calling such action debt or assumpsit, or writing such a memorandum in the justice’s docket, does not change the nature of the action.</p> <p>2. Insolvents—Discharge—Burden of Proof.—In proceedings for discharge under the insolvent debtor’s act the burden of proof is upon the petitioner.</p> <p>3. Same—Discharge—Malice the Gist of the Action.—In an action a jury returned a verdict that the defendant was guilty of unlawfully converting to his own use the property of the plaintiff with intent to injure and defraud, etc. And the court rendered a “judgment in trover.” Held, that the verdict of the jury was equivalent to a finding that malice was the gist of the action.</p>

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Declaration on an insurance policy; pleas; general issue, etc.; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed. Statement of the Case.

<p>1. Negligence—A Question of Fact.—Oare and negligence are questions of fact for a jury.</p> <p>2. Same—Adults and Infants.—Acts which are not negligence toward an adult may be gross negligence toward a child.</p>

Memorandum.—Assumpsit for commissions. Appeal from the Superior Court of Cook County; the Hon. George F. Blanks, Judge, presiding. Submitted at the October term, 1894. Statement oe the Case. In the month of September, 1893, the plaintiff below, Walter JEL Wilson, was and had been for seven years a duly licensed real estate broker in the city of Chicago.

<p>1. Pleading—Pleas Purporting to Answer the Whole Declaration While Answering Only a Part.—A plea which assumes in the introductory part to answer the whole declaration, and yet is pleaded only to a part, is bad.</p>

<p>1. Burden of Proof—Question of Agency—A person rented a house, and when sued for the rent claimed that he was acting as an agent for another person. Held, that whether he was acting as principal or agent was a question of fact, and the burden was upon him to make the proof.</p> <p>2. Practice—Name of Actions.—It is immaterial by what name an action before a justice of the peace is called. On appeal it is whatever the evidence makes it.</p>

<p>1. Records—Matters Outside of the Common Law Record—Praetice.—If a party desires to have a matter, which is outside of the record at common law, considered by the court and its judgment upon it, he must see that it is contained in a bill of exceptions.</p> <p>2. Same— What is, at Common Law.—The summons and return, declaration and subsequent pleadings, verdict and judgment, make up the commdn law record. Affidavits and bills of particulars are not.</p> <p>3. Same— What is Not.—Copies of bonds, accounts and other instruments sued on, affidavits filed in an action at law, bills of particulars and the like, are no part of the common law record; they must be preserved in a bill of exceptions.</p>

<p>1. Receiver—Sale of Property in His Possession to Satisfy Liens.— Property in the possession of a receiver may be sold to satisfy subsisting liens, and where so done, it is proper for the court to order the receiver to deliver possession of the property to the purchaser.</p> <p>2. Partnership—Bight of Deceased Partner's Executor to Buy at Foreclosure Sale of Firm, Assets.—The executors of a deceased partner have a legal right to buy in for the use of his estate the property of the firm at a master’s sale upon the foreclosure of a mortgage given by the firm in the lifetime of the deceased partner to secure a partnership debt, and having paid for the same out of funds not belonging to the firm, are entitled to the possession of the same.</p>

<p>1. Practice in Chancery—Original and Supplemental Bills.— Where an agreement between two persons contemplates personal attention by each, to property, which the death of either would make thereafter impossible, if the death of such person so changes his relations with the other that his executors can maintain a bill which their decedent could not in his lifetime, such bill is an original and not a supplemental bill.</p> <p>2. Same—Relief on a Supplemental Bill.—On a supplemental bill no relief can be had upon a cause of action which did not exist when the original bill was filed.</p> <p>3. Appellate Court—Decisions, When Not Binding.—The Circuit is not bound to take the decision of the Appellate Court as the law in a case, where the case is not technically the same.</p>

<p>Memorandum.—Appeal from the Superior Court.of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Affirmed for want of a sufficient record.</p>

Memorandum.—Appeals from th'e Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1894. One affirmed, and one affirmed on condition of a remittitur being entered.

Memorandum.—Assumpsit. In the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Declaration on a guaranty of a promissory note; plea of the general issue; trial by the court; finding and judgment for defendant; appeal by plaintiff. Heard in this court at the October term, 1894, and affirmed. Statement of the Case.

Memorandum.—Mechanics’ Liens. Appeal from a decree rendered by the Superior Court of Cook County; the Hon. William G-. Ewing, Judge, presiding. Heard in this court at the October term, 1894, and affirmed. Statement of the Case.

Memorandum.—Assumpsit on a dishonored check. Appeal from a judgment for plaintiff entered by the Circuit Court of Cook County; the Hon. Thomas B. Windes, Judge, presiding. Heard in this court at the October term, 1894, and affirmed. Statement of the Case. This is an appeal from a judgment rendered in the Circuit Court of Cook County, sitting without a jury, and assessing damages in the sum of $607.66.

<p>1. Trials—Conduct of, Reading of Pleadings.—When counsel for either party state to the jury that his adversary has changed his position from that set up in his pleading to one that can not be recovered upon or defended, because not averred, the other party may read this pleading to the jury, and assert that ho relies upon his case as thus pleaded.</p> <p>2. Amendments—Of Bills of Exceptions.—A bill of exceptions maybe amended from the notes of the stenographer who reported the case at the trial. His notes are proper material for the trial judge to rely upon, and are as minutes kept by the judge himself, from which to make such amendments.</p> <p>3. Same—From Affidavits of Counsel.—An amendment to a bill of exceptions can not properly be made from an affidavit filed by counsel. Such amendments must be made from the minutes of the trial judge or from the notes of the stenographer.</p>

Memorandum.—Proceedings under the act relating to assignments for the benefit of creditors. Appeal from the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

<p>1. Merchandise—Value Depends upon Ilself.—Each lot of merchandise depends upon itself for a market value. Ascertainment of values by comparison with other merchandise is an improper method, and evidence for this purpose is properly excluded.</p> <p>2. Juries—The Final Arbiter upon Disputed Facts.—The law recognizes the jury as the final arbiter in cases of conflicting evidence.</p>

<p>1. New Trials—Absence of Witnesses.—An affidavit stating in effect that a witness, suspecting himself in danger of being prosecuted for bastardy, went away to avoid arrest, is insufficient to entitle the affiant to a new trial.</p>

M emorandum.—Action for personal injuries. In the Superior Court of Cook County; the Hon. George W. Blanke. Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed. Statement of the Case.

Memorandum.—Assumpsit for goods sold. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Common counts for goods sold; plea of the general issue; trial by the court; finding and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed. Statement of the Case.

Memorandum.—Motion to strike out bill of exceptions. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1894, and allowed.

Memorandum.—Bill for injunction. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

<p>Memorandum.—In equity. Error to the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.</p>

Memorandum.—Action upon a promissory note. In the Superior Court of Cook County; the Hon. George W. Blanks, Judge, presiding. Appeal by defendants. Heard in this court at the October term,-1894. Statement of the Case. This was an action by an indorsee of a promissory note.

Memorandum.—Action for personal injuries. In the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1394, and affirmed.

Memorandum.—Bill for an injunction. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1894, and affirmed. Statement of the Case.

Memorandum.—Appeal from an order granting an injunction entered by the Circuit Comb of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

<p>1. Pleading—Conclusions Insufficient.—An averment which is a mere conclusion, is insufficient. The real facts as they exist should be set out so that the court may determine whether they justify the conclusion.</p> <p>2. Injunctions—When Improvident.—Under the facts and circumstances set out in the opinion, the court holds the injunction to have been improvidently granted.</p>

Memorandum.—Action for personal injuries. In the Superior Court of Cook County; the Hon. George W. Blanks, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1891, and affirmed. Statement of the Case.

<p>1. Pleading—Set-off Not Admissible Under the General Issue.—In an action of assumpsit for goods sold and delivered, evidence of payment is admissible under the general issue, but set-off is not.</p> <p>2. Trials—Theories.—A theory, if wrong, is not error unless it is put into practice.</p>

Memorandum.—Proceedings for a mechanic’s lien; appeal from a decree entered by the Superior Court of Cook County; the Hon. William G-. Ewing, Judge, presiding. Heard in this court at the October term, 1894. Statement of the Case. This was a petition for mechanic’s lien.

<p>1. Records—Improper Praecipe and Certificate.—The act approved JunelS, 1887, entitled “An Act Concerning Fees and Costs,” providing that a party who desires to take an appeal may present to the clerk of the court in which the judgment or decree was rendered a copy of the bill of exceptions or certificate of evidence, affects only the fees to which the clerk is entitled; it does not do away with the necessity for a certificate showing that a complete transcript of the record has been made.</p>

Memorandum.—Assumpsit for money had and received. Appeal from the Circuit Court; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1894. Statement of the Case. This was an action of assumpsit for money had and received. The ground of the action is, that money fraudulently obtained from appellants, was deposited by the wrongdoer in defendant’s bank, and paid by it to his order, with notice of the fraud.

Memorandum.—Action of covenant commenced by attachment to recover rentals. In the Circuit Court of Cook County; the Hon. Samuel P, McConnell, Judge, presiding. Declaration upon a lease; defenses, ultra vires, replication, res adjudicata; judgment on demurrer to replication; appeal. Heard in this court at the October term, 1894, and affirmed.

<p>Memorandum.—Injunction. Assessment of damages on dissolution. Appeal from the Superior Court of Cook County; the Hon. Phillip Stein, Judge, presiding.</p>

<p>Memorandum.—Attachment. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.</p>

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

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum. —Action for personal injuries. In the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed.

Statement of the Case. This appeal is from a decree made April 7, 1894, wherein appellants, with John M. Peeples, Jr., and Henry O. Docker, as sureties on bond of' one George H. Potter, trustee, were adjudged to pay to appellee, as trustee succeeding said Potter, who died insolvent, $19,795.24, with costs.

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Bichard W. Clifford, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894.

Memorandum.—Proceedings for divorce. In the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Hearing and decree for complainant; appeal by defendant. Heard in this court at the October term, 1894, and affirmed. Statement of the Case. This appeal is brought to reverse a decree entered by the Circuit Court of Cook County, granting to appellee a divorce from, appellant.

<p>1. Common Carriers.—Can Not Limit Its Common Law Liability. —Under the statute of 1874, R. S. Ch. 27, a common carrier can not limit its common law liability, safely, to deliver property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property.</p> <p>2. Same—To Destinations Beyond Its Line.—If goods are delivered to a common earner marked for a place beyond the terminus of its line, and it receives the goods to carry, the carrier is bound by the common law rule to carry them, and if they are lost, to account to the owner for their value.</p> <p>3. Bills of Lading—Do Not Change the Rights of the Parties—A bill of lading does not change the rights of the parties.</p>

<p>1. Habeas Corpus—Appeal.—An appeal or writ of error does not lie to review an order on habeas corpus.</p>

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

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Henry W. Freeman, Judge, presiding. Submitted at the October term, 1894, and affirmed. Statement of the Case. Appellee declared upon two instruments as constituting one contract. They were as follows; “ Chicago, March 17, 1886.

<p>1. Fraud.—Not to be Presumed.—When relief is claimed upon the score of fraud perpetrated upon the complainant, the allegation of the bill must be proved. Fraud is not to be presumed.</p>

Memorandum.—Assumpsit. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Submitted at the October term, 1894. Statement ok the Case. Appellee contracted with appellant to build for her, according to certain plans and specifications, a World’s Fair Hotel, for which he was to receive $8,000.

<p>1. Foreclosure—Parchase Money and Liens of Mechanics.—Where parties purchased premises on credit, securing the purchase money by a mortgage, and erected buildings thereon for which they failed to pay, in a proceeding to foreclose the mortgage it is proper to order, a sale of the premises first for the payment of the purchase money, and thereafter the liens of the parties interested.</p>

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and reversed with a finding of facts.

<p>Memorandum.—Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1894.</p>

<p>Memorandum.—Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.</p>

<p>1. Appellate Court Practice—Supposititious Cases.—The Appellate Court is not authorized to consider supposititious cases.</p> <p>2. Mandamus—The Writ—When Not to be Issued.—A peremptory writ of mandamus will not be awarded where the right sought to be enforced is a mere abstract right, the enforcement of which, by reason of some change of circumstances since the commencement of the suit, can be of no substantial or practical benefit to the petitioner.</p>

Memorandum.—Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Judgment on demurrer to pleas. Heard in this court at the October term, 1894, and affirmed.

<p>1. Presumptions—In the Absence of a Bill of Exceptions.—Where a bill of exceptions does not show the reason for dismissing a writ of certiorari, the Appellate Court will presume that the court below had a good reason for doing so.</p>

Memorandum.-—Action for personal injuries. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Action for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

<p>1. Negligence—Railroads—Ladders at the End of Oars.—It is the duty of a railroad company, when placing ladders at the ends of cars instead of on the outside, to provide such bumpers, or agencies, as will prevent cars that are fastened to each other from coming so close together as to imperil the life or body of a person who may be lawfully employing such ladders.</p>

<p>Memorandum..—Appeal from, the Superior Court of Cook County; the Hon. W. G. Ewing, Judge, presiding.</p>

<p>1. Former Case—Follows the Decisions in the Conservative Building and Loan Association v. Cady, 55 Ill. 469.</p>

Memorandum.—Action for personal injuries. In the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict and. judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed. Statement op the Case.

Memorandum.—Action for damages resulting from the vacation of a street. In the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Declaration in case; plea of the general issue; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Bill for an injunction. Appeal from a decree of the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

<p>1. Bills op Exception—Exhibits.—The court will not consider exhibits read in evidence unless they are properly preserved in a bill of exceptions.</p>

Memorandum.—Assumpsit. In the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Common counts; money due for compensation for property taken for public use; plea of nonassumpsit; trial by the court; finding and judgment for defendant; error by plaintiff. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Action for damages; death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

<p>Memorandum.—In equity. Appeal from a decree rendered by the Circuit Court of Cook Comity; the Hon. Samuel P. McConnell, Judge, presiding. Heard in this court at the October term, 1894.</p>

Memorandum.—Assignment for the benefit of creditors. Appeal from an order of the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

<p>1. Contempt—When Not Committed in the Presence of the Court.— When a contempt is committed out. of the presence of the court, the court has no power to proceed summarily against the offender without the filing of a written complaint or affidavit to set the machinery of the court in motion.</p> <p>3. Same—Authority to Hear Oral Testimony.—Except by statute, there is no legitimate mode by which the judge of a court may be informed of the facts upon which he is to act by the oral testimony of witnesses delivered in his presence.</p>

Memorandum.—Assumpsit for money had and received. Appeal from a judgment of the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Suit on an appeal bond. In the Superior Court of Cook County > the Hon, Jonas Hutchinson, Judge, presiding. Declaration in debt. The pleas are sufficiently set out in the opinion of the court. Trial by the court below without a jury; finding and judgment for plaintiff; appeal by the defendant. Heard in this court at the October term, 1894.

<p>1. Street Car Companies—'Ordinances—Construction of the Word “ Car."—It is questionable if an ordinance providing that it shall be unlawful for any of the horse railway cc$>mpanies of the city of Chicago to suffer any car to be run on any portion or part thereof in said city, at any time, unless the same shall be in charge of and under control of some competent conductor, who shall be a person other than the driver of said car, applies to cars which are not used for the transportation of passengers.</p> <p>2. Same—The Term Conductor Defined.—The term “conductor” as applied to the business of railways, signifies the chief official on the train, who controls its movements and usually collects fares.</p> <p>3. Negligence—Failure to Comply with an Ordinance.—In an action for personal injuries, alleged to be the result of negligence in failing to comply with the provisions of an ordinance, it must appear that the injury was caused by the failure of the defendant to comply with the ordinance.</p> <p>4. Same—Duty of Railroad Employes with Regard to Children— Trespassers. —It is not the duty of persons in charge of cars or carriages to be at all times so stationed that children can not jump on or " hitch on ” to them in sport. Car companies are bound at all times not only to exercise ordinary care, but often to use great care that no one in the street is run over, but this care is .due not so much to trespassers as to those making use of the street or car in an orderly and proper manner.</p>

<p>1. Master’s Report—When Not a Part of the Record.—A master’s report does not become a part of the record by being incorporated therein by stipulation of the parties.</p>

Memorandum.—Action for rent. Appeal from a judgment of the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in that court on appeal from a justice of the peace. Submitted at the October term, 1894.

Memorandum.—Assumpsit. Appeal from a judgment of the Superior Court of Cook County; the Hon. Nathaniel C. Seaes, Judge, presiding. Submitted at the October term, 1894. Statement oe the Case. This was an action of assumpsit brought by appellee to recover under a contract by which he was, as conductor of a military band, to assist the musical director in any capacity he might desire, for the World’s Columbian Exposition at Chicago.

<p>Memorandum.—Assumpsit. Appeal from a judgment of the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Submitted at the October term, 1894.</p>

<p>Memorandum.—Assumpsit for services. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Submitted at the October term, 1894.</p>

Memorandum.—Assumpsit. Appeal from a judgment of the Circuit Court of Cook County, on appeal from a justice of the peace; the Hon. Richard W. Clifford, Judge, presiding. ' Submitted at the October term, 1894.

<p>Memorandum.—Assumpsit on a promissory note. Appeal from a judgment of the Superior Court of Cook County; the Hon. George W. Blanks, Judge, presiding. Submitted at the October term, 1894, and affirmed.</p>

<p>Memorandum.—Action for personal injuries. Appeal from a judgment of the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Submitted at the October term, 1894.</p>

Memorandum.—Appeal from an order dismissing an appeal entered by the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.

Memorandum.—Appeal from an interlocutory order granting an injunction entered by the Superior Court of Cook County; the Hon, William G-. Ewing, Judge, presiding. Heard in this court at the October term, 1894. Statement of the Case.

<p>1. County Board—Control Over Court Rooms, etc.—The control of the county board of Cook county over such of the court rooms in the court house as have been set apart for, and always used by, the Circuit and Superior Courts, does not extend so far as to permit said board to compulsorily require the judges of said courts to change and remove their courts from one room to another at the pleasure of the board.</p> <p>2. Same—Its Powers.—The county board of Cook county can exercise only such powers as are conferred upon it by the constitution and statutes of the State, or as arise by necessary implication from their express grant of powers. It possesses no common law powers.</p> <p>3. Same—Manager of the Property of the County.—The county-board, under our system, is the constitutional and statutory manager of all the property of the county, including the court house and court rooms.</p> <p>4 County Board and Sheriff.—It is the duty of the county board to provide court rooms and maintain them, and it is equally the duty of the sheriff to provide against the rooms which have been once set aside for the use of the courts, from being closed against such use, and protect them from intrusion to the obstruction of the court’s business.</p> <p>5. Same—Custody and Control of Court Houses.—The custody and control which the county board is entitled to exercise under the authority of the constitution and statutes, is such as attaches to and flows from the ownership of the court house by the county; that of the sheriff is such as attaches to and flows from the inherent powers and duties of his office at common law, and as recognized by the constitution and declared by the statutes as the attendant upon the court and as the court’s executive officer.</p> <p>6. The Sheriff—Enforcer of the Peace and Order.—The sheriff is the common law, statutory and constitutional enforcer of the peace and order of the rooms in which the courts are held, and the preserver and protector of the dignity of the courts, as well as of the peace of the county. He is the officer through whom the courts act to enforce order and decorum in their presence and their processes in their absence.</p> <p>7. Same—His Election and Powers at Common Law.—The constitution provides for the election of a sheriff in each county, and his powers, being undefined and not limited by the constitution, unless by necessary implication, are left as they existed at common law.</p> <p>8. Same—Subject to the Orders of the Court.—The sheriff and his deputies are subject to the orders of the court in. all ma.ttei .j pertaining to its business and the administration of justice in the county.</p> <p>9. Same—A Constitutional Officer of the Stale.—Tin sheriff of the county is, eo nomine, a constitutional officer of the inate, and possesses all the substantial powers appertaining to the office by common law. The legislature may impose upon him new duties, but it can not deprive him of his common law functions and devolve them upon the incumbents of other offices created by it.</p> <p>10. Same—Powers at Common Law and by Statute.—At common law the sheriff of the county was alone custodiam comitatus, and the common law being the law of this State, except when altered by the constitution or statutes, he has all the common law powers and duties pertaining to his office, except where he has been deprived of the same by the constitution or by constitutional statutes.</p> <p>11. Same—A Continuation of the Office as it Existed at Common Law.—The office of the sheriff, as it exists in this State, is amere continuation of that office as it existed at common law, and his common law powers have never been limited by the constitution, or by constitutional statutes unless by implication arising from conflicting provisions.</p> <p>12. Court—Independence of the Judiciary.—It is of the first importance that the dignity' and .independence of the judiciary should be preserved and be free from all interference and obstruction by the legislative departments of the government, in all matters respecting the execution of judicial functions.</p> <p>13. Same— Control over Court Rooms.—It is a matter of prime consideration in the performance of its duties that the court have unquestioned freedom in the access to and control over the court rooms during its sessions and its necessary seasons of" adjournment.</p> <p>14. Construction of Statutes—County Board and Sheriff.—The different constitutional provisions and statutes creating and regulating the powers and duties of the county board and the sheriff of Cook county should be interpreted so as to harmonize their different provisions and give them all effect.</p>

Memorandum.—Assumpsit for services. Appeal from the Circuit Court of Cook County; the Hon. Thomas Gr. Windes, Judge, presiding. Submitted at the October term, 1894, Statement of the Case. This is a suit brought by James T. Young, appellant, against John W. Trainor, appellee, to recover for services rendered by Mr. Young in securing for Mr. Trainor the acceptance of a proposition for the exchange of certain real estate belonging to Trainor.

Memorandum.—Action of-assumpsit. In the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding. Trial by jury; verdict and judgment for the plaintiff; error by the defendant. Heard in this court at the. February term, 1894, and affirmed.

Memorandum.—Action for personal injuries. In the Circuit Court of Madison County; the Hon. Benjamin B. Burroughs, Judge, presiding. Trial by jury; verdict and judgment for the plaintiff; appeal by the defendant. Heard in this court at the August term, 1893, and reversed and remanded.

Memorandum.—Assumpsit for teacher’s wages. Appeal from the County Court of Lawrence County; the Hon. Frank C. Meserve, Judge, presiding. Heard in this court at the February term, 1894, and affirmed.

Memorandum.—Action for personal injuries. Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding. Heard in this court at the August term, 1893, and affirmed.

Iff emorandnm.—Action on the case for waste. • In the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding; declaration in case; plea, not guilty; trial by the court; finding and judgment for plaintiff, appeal by defendant. H eard in this court at the February term, 1894, andreversed; rehearing granted at the August term, 1894, and affirmed.

Memorandum.—Assumpsit. Breach of contract. Appeal from, the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Declaration; special count on breach of contract and common counts; pleas, general issue and performance; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the August term, 1894.

Memorandum.—Foreclosure. Motion to set aside a decree. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilder-MAN, Judge, presiding. Heard in this court at the August term, 1894. Statement of the Case.

Memorandum.—Debt on an official bond. In the Circuit Court of Jefferson County; the Hon. Silas Z. Landes, Judge, presiding. Judgment on demurrer to declaration; appeal by plaintiff. Heard in this court at the August term, 1894.

Memorandum.—Trial of the rights of property. Appeal from the Circuit Court of Union County. Heard in that court on appeal from a justice of the peace; the Hon. Joseph P. Robarts, Judge, presiding. Trial by jury; verdict for claimant; appeal by defendant. Heard in tins court at the August term, 1894.

<p>1. Taxation—Property May he Assessed After the Return of the Assessor’s Boohs.—If an assessor discovers that some personal property has escaped his notice, shortly after the return of his books, he may assess it thereafter, if done in time for the taxes to be extended thereon, so that it may bear its equal burden of taxation with other property.</p> <p>2. Same—Assessor's Books—Duty.—The assessor’s books are not his warrant of authority. His duty being a continuous one until performed, he may lawfully .supplement a former report by another, assessing omitted property.</p> <p>3. Same -Complaints Against Assessments.—The rule that one making a complaint against an assessment must present the same in the first instance to the boards of review, is based upon the doctrine that where there is a remedy at law chancery will not intervene; but where the assessment is made after the meeting of the boards of review, a court of chancery will afford a remedy.</p> <p>4. Same—Payment Under Duress.—Taxes illegally assessed, if paid voluntarily and not under protest, can not be recovered back.</p> <p>5. Same—Stockholders in State Banks—Assessment of.—The tax upon shares of stock in State banks, not the property of the bank, must be levied upon the individual shareholder and not upon the bank, and if illegally assessed and paid under duress, the shareholder and not the bank must sue for its recovery.</p> <p>6. Action for Money Had and Received—To Recover Taxes Illegally Collected.—-The action for money had and received is equitable in its nature, in which the plaintiff can only recover so much money as he can show the defendant ex aequo bono ought not to retain. It lies to recover the amount of taxes illegally collected.</p> <p>7. Same—Collection of Taxes, When Not to be Enjoined.—When property is legally liable to taxation, and the assessment has been made by an officer defacto or dejure, exercising an office to which the power to assess property for taxation is incident, a court of equity will not enjoin the collection of the taxes for that reason alone.</p>