Volume 58 — Illinois Appellate Court Reports

Action for Personal Injuries.—Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Submitted at the August term, 1894. Statement of the Case.

Action for Damages.—Death from negligent act. Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, 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 August term, 1894.

Assumpsit.—Appeal from the Circuit Court of Alexander County; the Hon. Oliver A. Harker, Judge, presiding. Declaration; common counts; the pleas are stated in the opinion of the court; trial by jury; verdict for plaintiff; appeal by defendant. Submitted at the August term, 1894.

<p>Injunction—Appeal from the Circuit Court of Cook County, the Hon. Joseph P. Robarts, Judge, presiding. Submitted at the August term, 1894.</p>

<p>Claim in Probate.—Appeal from the County Court of Union County; the Hon. Monroe C. Crawford, Judge, presiding. Submitted at the August term, 1894.</p>

Trover.—Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding, Declaration in trover; plea of the general issue; jury waived and trial by the court; finding and judgment for plaintiff; appeal by defendant. Submitted at the August term, 1894.

Assumpsit for money had and received. ■ Appeal from the Circuit Court of Alexander County; the Hon. Oliver A. Harker, Judge, presiding. Declaration; common counts and plea of the general issue; trial by jury; verdict and judgment for the plaintiff; appeal by defendant. Submitted at the August term, 1894.

Action for Slander.—Appeal from the Circuit Court of Williamson County; the Hon. Alonzo K. Vickers, Judge, presiding. Declaration in case; plea, not guilty, with notice, etc.; trial by jury; verdict for defendant; appeal by plaintiff. Submitted at the August term, 1894.

Action for Damages resulting from the erection of a dam. Appeal from the Circuit Court of Marion County; the Hon. Benjamin R. Burroughs, Judge, presiding. Declaration in case; pleas of the general issue and statute of limitations; trial by the court; finding and judgment for plaintiff; appeal by defendant; submitted at the August term, 1894. Statement of the Oase.

<p>Bill to Set Aside a Judgment.—Appeal from the Circuit Court of Marion County; the Hon. Benjamín R. Burroughs, Judge, presiding. Submitted at the August term, 1894.</p>

<p>Trespass on the Case for seduction. Appeal from the Circuit Court of Jasper County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1894.</p>

Assumpsit, for money had and received, etc. Appeal from the Circuit Court of Monroe County; the Hon. Benjamin B. Burroughs, Judge, presiding. Heard in this court at the August term, 1894.

Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding. Heai-d in this court at the August term, 1894.

Replevin.—In the Circuit Court of Lawrence County; the Hon. Edmund D. Youngblood, Judge, presiding; declaration, etc.; pleas of non eepit, non detinet, justification a!nd title in stranger; issue joined on first two and replication as to the third and fourth pleas, and issue joined on same; trial by the court; finding for defendant; appeal by plaintiff. Submitted at the August term, 1894.

Foreclosure, sale.—Appeal from the Circuit Court of St. Clair County;, the Hon. Alonzo S. Wilderhan, Judge, presiding. Heard in this court at the August term, 1894. Statement of the Case. This was a proceeding by bill in chancery exhibited by appellee, to foreclose a mortgage of real estate, executed and acknowledged by Stone and wife to secure certain indebtedness of Stone to appellee.

<p>1. Trial by the Court—Conclusive on the Facts.—A trial by the court where the evidence is conflicting, and a finding of the facts, are conclusive.</p>

Trespass on Ihe Case.—Death from negligence. In the Circuit Court of Fayette County; the Hon. Jacob Fauke, Judge, presiding. Declaration incase; plea of not guilty; trial by jury; verdict for plaintiff; appeal by defendant. Heard in this court at the August term, 1894.

<p>1. Landlord Aim Tenant—Covenants to Repair—Suit for Rent— Recoupment.—Where there are no covenants in the lease on the part of the landlord to keep the buildings on the demised premises in repair he will not be liable to do so; but if the landlord has expressly covenanted to repair, the obligation will be enforced, and if he sues for rent the tenant may recoup any damage he has sustained by the breach of covenant.</p> <p>2. Same—Covenants to Repair Before the Term Commences. —If a landlord covenants to repair before the term commences, the tenant may refuse to enter upon the term until the repairs are made; but having entered upon the term and received possession, he can not abandon the lease and refuse to pay rent for the breach of the covenant to repair.</p> <p>8. Same—Failure to Repair—Recoupment by Tenant.—If the landlord covenants to repair, and fails, the tenant may recoup from the rent the amount of his damages or sue upon the covenant.</p> <p>4. Same—Covenants to Repair—Loss by Fire.—A covenant on the part of the lessor to repair includes the duty to rebuild in case of fire.</p>

<p>Assignment for the Benefit of Creditors.—Claim against an insolvent firm. Appeal from the OountyCourt of Jackson County; the Hon. M. C. Crawford, County Judge of'Union County, presiding. Submitted at the August term, 1894.</p>

<p>Intervening Petition for Mechanic’s Lien.—Error to the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Submitted at the August term, 1894.</p>

Partition of Real Property.—Appeal from a decree allowing solicitor’s fees in partition. Entered by the Circuit Court of Wabash County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1894.

Debt on an official bond against the principal alone. In the Circuit Court of Fayette County; the Hon. Jacob Fouke, Judge, presiding. The pleadings are stated in the opinion of the court. Trial by the court and finding and judgment for defendant; error by plaintiff. Heard in this court at the August term, 1894.

Trespass on the Case, for obstructing a watercourse. Appeal from the Circuit Court of Williamson County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the August term, 1894.

Trespass on the Case, for negligence in maintaining a bridge. Appeal from the Circuit Court of Clay County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the August term, 1894.

<p>Debt on an official bond. Appeal from a judgment on demurrer rendered by the Circuit Court of Monroe County; the Hon. George W. Wall, Judge, presiding. Submitted at the August term, 1894.</p>

<p>1. This Case follows the preceding one. Appeal from the Circuit Court of Monroe County; the Hon. George W. Wall, Judge, presiding.</p>

<p>1. Instructions—Where the Evidence is Conflicting.—Where the issues are contested and the evidence conflicting, extreme care is required in instructing the jury as to the law.</p> <p>2. Same—Plaintiff Must Inform Himself of His Surroundings.—An instruction which practically tells the jury that the plaintiff had a right to shut his eyes and refuse to inform himself as to the condition of the track and the nature of his surroundings, notwithstanding the fact he may have had ample opportunity for investigation or even for acquiring a true knowledge of the situation by ordinary observation without any effort at investigation, is erroneous.</p> <p>3. Same—Liability of Master—Information of Servant.—An instruction which, in effect, informs the jury that a master is liable even though the servant may have had such information of his surroundings as would have put a reasonably prudent man on his guard, provided that information did not amount to full information, or, as the average juror would understand the language, to absolute certainty, is erroneous.</p> <p>4. Same—Error in One Instruction Not Always Cured by Others.— Where the evidence is conflicting and the balance doubtful, an instruction, erroneously assuming a fact in issue, is not cured by other instructions which assume that the question is still open.</p> <p>3. Master and Servant—Duty of the Servant as to His Surroundings.—The rule that the servant is under no primary obligation to investigate and test the fitness and safety of the machinery, surroundings, etc., in the absence of notice of defects is not applicable to the case of one who has been in the employment of his master for such a length of time as to require him, in the exercise of ordinary prudence, to take some notice of his surroundings.</p> <p>6. Record—When it Does Not Contain All the Instructions Given.— When the record does not contain all the given instructions, yet, if instructions given and preserved contain errors which could not have been cured by others, it is proper to reverse the judgment because of the giving of such erroneous instructions.</p>

Injunction, to restrain the collection of a judgment. Appeal from a decree of the Circuit Court of Marion County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the August term, 1894

Trespass on 1he Case, for personal injuries. Appeal from a judgment of the Circuit Court of Effingham County; the Hon. Edmund D. Young-blood, Judge, presiding. Heard in this court at the August term, 1894.

<p>Trespass on the Case, for killing domestic animals. Appeal from the Circuit Court of Fayette County; the Hon. Jacob Fotjke, Judge, presiding. Submitted at the August term, 1894.</p>

<p>1. Negligence—In Repairing Crossings.—Appellee, with his team, was upon the highway approaching a railroad crossing, where the servants of the company were engaged in making repairs. Upon inquiry, he was told by them to'cross over. In doing so one of his horses stepped upon a spike in an upturned plank and was fatally injured. A recovery was sustained.</p>

<p>1. Wills—There Must Be an Intention to Make.—If there is no intention to make a will, there can be no will. Whether an instrument is to be considered as a will or not depends upon the intention of the maker.</p> <p>2. Nuncupative Wills—Animus Testandi,—As to nuncupative wills the animus testandi at the time of the alleged nuncupation must be shown by the clearest and most indisputable testimony, as such wills are not favored in law.</p>

Trespass on the Case, for injuries to domestic animals. Appeal from the Circuit Court of Alexander County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the August term, 1894.

Trespass on the Case for damages. Death from negligent act. In the Circuit Court of Madison County; the Hon. George W. Wall, Judge, presiding; declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Submitted at the August term, 1894, and affirmed.

Trespass on the Case for personal injuries. In the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for defendant; error by defendant. Heard in this court at the August term, 1894.

Trespass on the Case, for personal injuries. In the Circuit Court of Jackson County; the Hon. Alonzo K. Yickers, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for defendant; error by plaintiff. Heard in this court at the August term, 1894, and affirmed.

Assumpsit, for goods sold and delivered. In the Circuit Court of Clay County; the Hon. Silas Z. Landes, Judge, presiding. Declaration, common counts; the pleas are stated in the opinion of the court; trial by jury; verdict and judgment forplaintiff; appeal by defendant; submitted at the August term, 1894, of this court.

Trespass on the Case, for damages by fire. In the Circuit Court of Fayette County; the Hon. Jacob Fauke, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; error by defendant. Heard in this court at the August term, 1894.

Assumpsit, on an insurance policy. In the Circuit Court of Massac County; the Hon. Alonzo K. Vickers, Judge, presiding. Declaration upon a policy of insurance; the pleas are stated in the opinion of the court; judgment on demurrer to pleas; appeal by defendant. Heard in this court at the August term, 1894, and affirmed.

Trespass on the Case, for damages sustained by the erection of a viaduct. In the City Court of East St. Louis; the Hon, Alexander W. Hope, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict of not guilty; error by plaintiff. Heard in this court at the August term, 1894,

Replevin and Motion to Vacate Judgment, entered upon a judgment note. In the Circuit Court of Madison County; the Hon. George W. Wall, Judge, presiding. Declaration in replevin. Pleas (1) non cepit; (2) non detinet; (3) property in a third party; (4) property taken by virtue of an execution, etc.; (5) property in the defendant. Trial by the court without a jury; finding and judgment for plaintiff; appeal by defendants. Submitted at the August term, 1894.

Trespass on the Case, for personal injuries. Appeal from a judgment of the Circuit Court of Marion County; the Hon. George W. 'Wall, Judge, presiding. Declaration in case; pleaof not guilty; trial by jury; verdict of guilty. Appeal by the defendant. Submitted at the August term, 1894. Statement of the Case. Appellee brought this suit to recover damages for personal injuries received by her while being carried as a passenger on appellant’s train, March 22, 1892.

<p>Assumpsit, on a promissory note. Confession of judgment; motion to open; plea of usury; appeal from the Circuit Court of Williamson County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in the Circuit Court at the August term, 1894.</p> <p>Statement of the Case.</p> <p>At the February term, 1894, of the Williamson Circuit Court, judgment in favor of appellant against IE. C. Campbell was entered by confession, upon a note and cognovit, for 82,028.99. The note is as follows:</p> <p>“ $1,374.80. One day after date we, or either of us, promise to pay to the order of Richart & Campbell the sum of thirteen hundred seventy-four and eighty one-hundredths dollars, and in case the said sum shall not be paid when due, we hereby authorize and empower any attorney at law of the State of Illinois to appear before any court of record and confess judgment for the above mentioned sum and eight per cent from maturity, and a reasonable attorney’s fee, and to release all errors, and waive all proceedings in the nature of a stay of execution, appeal or petition in error. Payable at the banking house of Richart & Campbell, Carbondale, Illinois.</p> <p>In witness whereof we have hereunto subscribed our names, and affixed our seals, this 1st day of February, 1889.</p> <p>Goodall & Campbell. "[Seal.]</p> <p>By H. C. Campbell. [Seal.] ”</p> <p>At the Hay term, 1894, of said court, H. C. Campbell entered his motion, supported by affidavit, to set aside the confessed judgment and for leave to plead to the declaration on the merits. Several reasons in support of the motion were assigned, but the principal ground relied on, was that said nóte is usurious. The court overruled the motion and ordered that the judgment and execution be stayed; that defendant be permitted to plead to the declaration, but that said judgment remain in full force as to the lien thereof, to the end of securing the plaintiff in whatever sum may be found due him from defendant. Thereupon defendant pleaded the general issue, and a special plea as to all but five hundred dollars of the note sued on, setting up substantially that the whole amount of said note for $1,374.99, above the sum of $500, is usurious interest. 'On the issues prescribed by the pleas, the cause was tried by the court, by agreement, and a finding and judgment for plaintiff resulted, for $500 damages and costs of suit, to reverse which judgment plaintiff took this appeal.</p>

<p>Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Madison County; the Hon. George W. Wall, Judge, presiding. Submitted at the August term, 1894.</p>

<p>Debt, for rent. Appeal from the County Court of Gallatin County; the Hon. D. M. Kinsall, Judge, presiding. Submitted at the August term, 1894.</p>

<p>1. Mortgaged Premises —Sale of, Subject to the Mortgage—Grantee's Liability.—The conveyance of land upon which there is a mortgage, though made by warranty deed and subject to the mortgage, does not necessarily make the purchaser of the land liable to the mortgagee for the mortgage debt. To create such a liability there must be an express promise, or the amount of the mortgage must have been deducted from the purchase price of the land so as to raise an implied promise to pay. Where this has been done, the mortgagee may hold the grantee to a personal liability.</p> <p>2. Same—Agreement to Assume Mortgage—Buildings Erected upon Other Premises by Mistake Held Subject to the Lien.—The owner of two lots erected a house, as he supposed upon them, but by an error in measurement it was, in fact, upon adjoining lots. Without discovering his error he mortgaged his lots and then sold them, the grantee agreeing to pay the mortgage as a part of the purchase money. Upon discovering the error, the grantee bought the lots upon which the house was, for what they were worth as vacant lots. Upon a bill filed to subject the house to the lien of the mortgage, it was held that as the grantee of the lots bought them with a full knowledge of all the facts, and so obtained the house which should have been covered by the mortgage, he had put himself in a position to pay the mortgage according to the contract made by him when he received the deed of the lots upon which the house was intended to be, and must be held to a personal liability.</p> <p>3. Chancery Practice—Specijie Belief Under a General Prayer.—■ Where the relief granted is not the specific relief prayed for, if it is within the scope of the general prayer, it will be sufficient if in line with the allegations of the bill.</p>

<p>1. Corporations—Exercise of Conferred Powers Bindingupon Stockholders.—The exercise of apower expressly conferred upon a corporation by its by-laws, can not be questioned by the stockholders.</p> <p>2. By-Laws—A Part of the Stockholder’s Contract.—Where it is stipulated by the certificate of stock that the by-laws of the association shall be a part of the contract between the association and the stockholder the latter will be bound by the by-laws and will not be permitted to question legitimate exercise of a power conferred thereby upon the association.</p> <p>3. Savings and Loan Associations—Payments upon Stock, Not upon Indebtedness.—When a stockholder in a savings and loan association is also a borrower from said association, payments of dues upon his stock are not payments upon indebtedness, and do not of themselves work an extinguishment of such indebtedness.</p>

<p>1. Savings and Loan Associations—Power of Making Assessments. —When the by-laws of an association are expressly made a part of the contract or certificate of stock, and expressly give the association power to make sufficient assessments, so that stock will mature within a fixed time, the stockholder can not question the action of the association in making such assessments, where no fraud is practiced upon him.</p>

<p>Memorandum.—In equity. Appeal from the Circuit Court of White County; the Hon. E. D. Youngblood, Judge, presiding. Heard in this court at the August term, 1894.</p>

Trespass on the Case.—Obstructing watercourses, etc. Appeal from the Circuit Court of Madison County; the Hon. George W. Wall, Judge, presiding. Declaration in case; plea of not guilty; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Submitted at the August term, 1894.

Bill to Dissolve a Corporation and distribute its assets. Appeal from an order upon the receiver. Entered by the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Submitted at the October term, 1894.

Assumpsit, for money paid out for the appellant at his request. In the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Plea of the general issue with affidavit of merits; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Submitted at the October term, 1894, and affirmed.

Assumpsit, upon a contract of guaranty. In the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Trial by jury; verdict and judgment for plaintiff; appeal by defendant. Submitted at the October term, 1894.

. Action for Rent.—In the Superior Court of Cook County on appeal from a justice of the peace; the Hon. John Barton Payne, Judge, presiding. Trial by jury; verdict and judgment for defendant; appeal by plaintiff; submitted at the October term, 1894.

<p>Bill to Set Aside a Trust Deed.—Error to the Circuit Court of Cook County; the Hon. William C-. Ewing, Judge, presiding. Heard in this court at the March term, 1895.</p>

Assumpsit.—Appeal from the entry of a nunc pro tunc order dismissing the suit. Entered by the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Submitted at the March term, 1895. Statement of the Case. The Marine Bank Company filed a suit in assumpsit against John B. Mailers in the Superior Court of Cook County, on the 22d day of May, A. D. 1894. The defendant filed on July 5, 1894, a plea.

<p>Bill for an Injunction.—Appeal from the Superior Court of Cook County; the Hon. William G-. Ewing, Judge, presiding. Submitted at the March term, 1895.</p>

<p>1. Contracts—By Implication.—That which is implied in a contract is as much a part of the contract as that which is expressed.</p> <p>2. Same—Construction.—A court will always lean to a construction which makes a contract valid rather than one by which it becomes invalid.</p> <p>3. Same—To Take the Output of a Mine.—A contract between a dealer in coal and the owner of a mine to take “ the entire output of a mine (from one to three cars per day) of lump coal,” implies an obligation on the part of the owner of the mine to put out not less than one and not more than three carloads per day, and is one of mutual obligation, the quantity of the output within the limits being at the option of the owner of the mine. A failure on the part of the dealer to take the coal according to the contract, renders him liable to respond in damages.</p> <p>4. Same—Breach of—When a Cause of Action Accrues.—Where a mutual contract was entered into, to taire the entire output of a coal mine for a specified season, the quantity being fixed between specified limits, and afterward the purchaser refuses to take the coal according to the contract, such refusal renders it unnecessary for. the owner of the mine to take the coal out of the ground, and gives him an immediate right of action. He need not wait until the time mentioned in the contract has expired. He is not bound to take out the coal, trusting to find a market and charge the difference between the contract price and what he might get for it.</p> <p>5. Variance—Must he First Ftaised in the Court Below.—Where the question of a variance between the allegations and the proofs is not raised in the court below, it can not be raised in the Appellate Court. ■</p> <p>6. Exceptions—When Deemed to he Abandoned.—Where exceptions are taken on the trial of a case in the court below, but are not mentioned in the appellant’s brief in the Appellate Court, they will not be considered.</p> <p>7. Instructions—Disregarded hy Jury.—The fact that a jury disregarded an incorrect instruction, is no ground for reversing a judgment.</p>

Contempt of Court.—Error to reverse an order of the Criminal Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case. The events and proceedings which resulted in the fine imposed upon the plaintiff in error by the judgment of the Criminal Court of Cook County, are briefly as follows: December 19, 1893, a special election for mayor of the city of Chicago was duly held.

<p>1. Promissory Notes—Meaningless Conditions.—Adding to an ordinary and unconditional promissory note the words, “title not to pass until this note is paid in full,” is substantially meaningless when read in connection with the rest of the note.</p> <p>2. Possession—0/ Personal Property Uneocplained.—Possession of personal property unexplained implies title in the possessor.</p>

<p>1. Master and Servant—Dangerous Employments.—The rule that a master is bound to use reasonable care to furnish a reasonably safe place for the servant to work, and to use reasonable care to protect him from dangerous machinery and hazardous methods of conducting business, is qualified by the rule that if the master fails in such respects, and the servant, being fully advised of the dangers, continues without objection and voluntarily to work in the unsafe place, or in proximity to the dangerous machinery, or under the hazardous conditions of conducting the business, he takes the chances of the obvious and known danger.</p> <p>S. Instructions—Assuming What Constitutes Negligence.—In an action for personal injuries received by a servant while working in a dangerous place, an instruction which telle the jury that under certain circumstances recited, the failure of the defendant to use certain precautionary measures also recited, is negligence, is erroneous as assuming what constitutes negligence.</p> <p>3. Same— Waiver of • Risks Incident to the Employment.—When an instruction assumes certain facts to be negligence, it does not follow that the injured person had not the right to waive the risk incident to such negligence and take the risk himself, and whether he did so or not, ought to have been submitted to the jury.</p> <p>4, Same—Invading the Province of the Jury.—It is error to instruct a jury as to what facts constitute negligence and want of ordinary care, and as to who under given facts are as a matter of fact fellow-servants; such questions are facts for the jury to determine from the evidence.</p>

<p>Assumpsit, on a contract of guaranty. Error to the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>Assumpsit, for a failure to pay rent. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Submitted at the March term, 1895.</p>

Order dismissing an appeal from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Thomas Gr. W. toes, Judge, presiding. Submitted at the March term, 1895.

<p>1. Service oe Summons—Ten Days Before the Term.—The statute requires service to be made ten days before the first day of the term, in order to compel a defendant to plead.</p>

<p>1. Negligence—In What it Consists.—There can be no negligence without the failure to observe some duty. In law a person can be negligent only toward him to whom he owes a duty.</p> <p>2. Infants—Excused, from. Using Due Care—Duty Toward.—While infancy excuses a person from the exercise of reasonable care, it does not increase the duty of third persons to him.</p> <p>8. Same—Injuries to, When Trespassing.—An infant five years of age, without notice to the driver, climbed on a step on the rear of an ice wagon which was being driven along a public street. A large block of ice slid out, fell upon and severely injured him. Held, as the owners of the wagon owed no duty to him they were not liable.</p>

<p>Bill for Injunction.—Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1. Lease—Description by Street Numbers—What is Not Included.—The rule that a demise of premises by street numbers includes stables on the rear end of the lot, is not applicable to corner lots in the business portion of a city occupying frontage on two streets, and on which are situated dwellings and business houses, separate and distinct, fronting upon the different streets.</p> <p>2. Same—Of Premises by Street Numbers—What Passes.—A description of demised premises in a lease of a building, by the street number, includes so much of the lot upon which the building is situated, as is necessary to the complete enjoyment of the building for the purpose for which it was let, and nothing more.</p>

<p>1. Chattel Mortgages—For Purchase 'Money.—Section 34, Ch. 95, R. S., entitled “ Mortgages,” providing that no chattel mortgage executed by a married man or' woman on household goods, shall be valid unless joined in by the husband or wife, has no application to a mortgage to secure the purchase money ol the goods upon which it is given.</p> <p>3. Alteration of Instruments 4- Without the Knowledge of the Owner.—An alteration of a promissory note, made without the knowledge of the holder, does not destroy its validity.</p>

<p>1. Corporations —Appropriation of Funds by its Officers, ete.—The fapt that the president of a corporation received, as a part of the consideration for the sale of its property, a note, the proceeds of which, when paid, he used to pay a debt of the corporation upon which he was personally liable, is not such an appropriation of its funds as amounts to a fraud upon other creditors.</p> <p>2. Preferences—Stockholders and Preferred Creditors.—The fact that a preferred creditor of a corporation is a stockholder, does not of itself make the preference unlawful.</p>

<p>1. Creditor’s Bill—Does Not Die Against a Municipality.—A creditor’s bill does not lie against a municipal corporation having in its possession money due to a contractor, for the purpose of subjecting such money to the payment of his debts.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Submitted at the March term, 1895.</p>

Trespass on the Case.—Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears. Judge, presiding. Trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1895.

Trespass for False Imprisonment.—In the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Declaration in trespass; plea of not guilty; trial by jury; verdict, not guilty, and judgment for defendant; appeal by plaintiff. Heard jn this court at the March term, 1895.

Bill to Foreclose a Chattel Mortgage.—Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case. The original bill in this case was filed to enjoin the police ° of the city of Chicago and the defendant, Grunenberg, and her solicitor, from interfering with the defendant in error in the foreclosure of a chattel mortgage. A preliminary injunction was granted.

Assumpsit, for work, labor and services. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1895.

<p>1. Findings of the Trial Court— When Final.—On a bill for an accounting, the question as to what was a fair allowance to one of the parties for his time and expenses while employed about the business, was for the trial court upon the evidence, and its decision is final.</p> <p>2. Interest—On Money Received.—Under See. 2, Ch. 74, R. S., entitled “ Interest,” it is proper to allow interest on money received to the use of another and retained without the owner’s knowledge.</p>

Assumpsit, for goods sold and delivered. In the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Trial by jury; verdict and judgment for plaintiff; appeal by plaintiff. Heard in this court at the March term, 1895. Statement op the Case. J. Rayner, a corporation, dealing in mahogany, rosewood, veneer and fancy cabinet woods, sold lumber and veneer, extending over a long period of time, to the Rees brothers, who were manufacturers.

<p>Claim, for Bent.—Insolvent corporation; receiver. Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1895.</p>

Assumpsit.—Breach of contract. In the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, présiding. Trial by the court;. finding and judgment for plaintiff; error by defendant. Heard in this court at the October term, 1894.

<p>Bill to Foreclose a Trust Deed.—Error to the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1. Contract—To Pay for Material, etc.—Burden of Proof.—Where a person agreed in writing to pay for material which another should use in finishing a job, before a recovery can be had, it must be shown that the material was furnished and used in finishing the work.</p>

<p>1. Courts — Power to Correct Records.—A court has power, after the expiration of the term, to correct its record, and to direct the clerk to record a verdict which was returned, and which should have been recorded by the clerk at the time of its rendition.</p> <p>2. Negligence—Of an Attorney is Negligence of the Client.—It is the settled rule in this State, that negligence of the attorney appearing in a cause is the negligence of the client.</p> <p>3. Garnishment—Issue upon the Answer—When to he Made.—It is not irregular to permit the making of an issue upon the answer of a garnishee after the term has passed at which the answer was filed.</p> <p>4. Verdicts—When Sufficiently Responsive to the Issue.—The following verdict, “ We, the jury, find the issues for the plaintiff, and assess the plaintiff’s damages at the sum of two hundred and seventy-nine and 58-100 dollars,” was held sufficiently responsive to the issues presented by the interrogatories, answer and replication in a proceeding by garnishment.</p>

<p>Bill to Compel the Awarding of a Contract.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Submitted at the March term, 1895.</p>

Mortgage Foreclosure.—Appeal from an order appointing a receiver, by the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case. This appeal is by the mortgagors from an order of the Circuit Court appointing a receiver to collect rents and profits under a cross-bill to foreclose a mortgage. The application below was based upon two grounds: First.

<p>1. Vaeiances—Indictment and Proofs.—A charge for falsely pretending in relation to the price of “ certain pieces, parcels and lots of land” is not sustained by proof of false pretenses in relation to but one lot.</p>

Indictment for a Misdemeanor.—Error to the Criminal Court of Cook County: the Hon. John Barton Payne, Judge, presiding. Submitted at the March term, 1895. Statement oe the Case. This is an appeal from a judgment sentencing the appellant to one year in the house of correction. The first count in the indictment upon which the defendant was arraigned, was for an assault with intent to kill.

<p>Bill for Injunction.—In the Circuit Court of Cook County. Consolidated cases; the Hon. Richard S. Tuthill and the Hon. Oliver H. Horton, Judges, presiding. Submitted to this court at the March term,-1895.</p>

Bill for Injunction.—Appeal from an order restraining the collection of a judgment, entered by the Circuit Court of Cook County; the Hon. Richard S. Tuthh.l, Judge, presiding. Submitted at the March term, 1895. Statement of the Case.

Debt-.—-In the Superior Court of Cook County, on appeal from a justice of the peace; the Hon. Jonas Hutchinson, Judge, presiding. Trial by the court; finding for plaintiff; appeal by defendant. Heard in this court at the October term, 1894, and affirmed.

Assumpsit, for services commenced in justice’s court. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Submitted at the March term, 1895, of this court.

<p>1. Instructions — Where the Evidence is Conflicting.—Where the evidence upon the tidal of an issue of fact is conflicting, it is highly necessary that the instructions should be reasonably free from error.</p> <p>2. Same—Error to Assume the Existence of Fact.—An instruction which assumes the existence of a controverted fact, is erroneous.</p>

<p>Debt, on penal bond. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Submitted at the March term, 1895, of this court.</p>

<p>Assumpsit, for legal services. Appeal from the Superior Court of Cook County; the Hon. Abner Smith, Judge, presiding. Submitted at the March term, 1895, of this court.</p>

<p>Bill for an Accounting, etc.—Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Submitted at the March term, 1895, of this court.</p>

<p>Bill for Belief.—Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Submitted at the March term, 1895, of this court.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Submitted at the March term, 1895, of this court.

Foreclosure.—Trust deed in the nature of a mortgage. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Submitted at the March term, 1895, of this court.

Trespass, for false imprisonment. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Submitted at the March term, 1895, of this court. Statement of the Case. This appeal is from a judgment for alleged malicious prosecution. Appellant, Hutchinson, was the proprietor of the Hotel Gresham; appellee became a boarder at such hotel. On the day before May 6, 1893, appellant rendered to appellee a bill for $27.

Mandamus.—To compel the issuing of a building permit. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Submitted at the March term, 1895, of this court. Statement of the -Case.

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Submitted at the March term, 1895.</p>

<p>1. Service of Process—Defective Return—How Cured.—A defect in the service of garnishee process is cured by the appearance and answer of the garnishee.</p> <p>2. Same—Opon Assistant Manager.—An assistant manager of a corporation is ex necessitate an agent, and service of process upon him in the-absence of the president from, the county by leaving a copy of the process, is sufficient.</p> <p>8. Garnishee Process—Service of, in Attachment Proceedings.—It is not necessary that garnishee process in attachment proceedings should be served before judgment is rendered against the principal defendant.</p> <p>4. Attachment Proceedings—Are in Rem.—Attachment proceedings are in rem; the judgment against the principal defendant, where there is neither personal service nor appearance by him, is not in personam, but merely against him to the extent of his interest in the property attached. And if no property in which the defendant is interested is attached, the suit fails.</p> <p>5. Same—What Gives the Court Jurisdiction.—It is the seizing of property in which the principal defendant lias an interest that gives the court jurisdiction.</p> <p>6. Sheriff’s Return—Amendment of, After Appeal.—A sheriff has power to amend his return so as to make the same correspond with the facts, and such amendment may be made after a cause has been appealed.</p>

Bill to Enjoin Collection of a Judgment.—Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding,^ Heard in this court at the March term, 1895. Statement oe the Case. A judgment was recovered in favor of the plaintiff in error against the defendant in error, in the Circuit Court of Miami County, in the State of Indiana, on the 4th day of March, 1893, for the sum of $26,128.80.

<p>1. Benevolent Insurance—Forfeitures—Notice.—Where the assessments of a benevolent insurance society do not occur at stated intervals, of which the members are bound to take notice, in order to insist upon a forfeiture of a member’s rights for a failure to pay an assessment, it must be shown that notice of such assessment was given as provided by the by-laws.</p>

<p>1. Statutory Bonds—Construction of.—A statutory bond has the effect which, in reason, must have been intended by the statute.</p>

<p>1. Chancery Practice—Master to State an Account.—Under a bill for a discovery and an accounting as to moneys alleged to have been fraudulently received, the proper practice is to .refer the same to the master to take the testimony and state the account. A reference to take the testimony only will not do.</p> <p>2. Same—Stating an Account.—A solicitor can not throw upon the court the clerical and accountant labor of going through accounts, by a reference to a master to take and report the testimony alone. The objection to such a course is one which a court will, of its own motion, interpose for its protection from unnecessary labor sought to be imposed upon it.</p>

<p>Trespass on the Case.—Sale of unwholesome pork. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge; presiding. Submitted at the March term, 1895, of this court.</p>

Assumpsit, for goods sold. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding; submitted at the March term, 1895, of this court.

<p>Bill for Specific Performance.—Appeal' from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Submitted at the March term, 1895, of this court.</p>

<p>Trespass on the Case.—Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Submitted at the March term, 1895, of this court.</p>

<p>Divorce and Alimony.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Submitted at the March term, 1895, of this court.</p>

<p>1. Chancery—Enforcing Abstract Rights.—A court of chancery ■will not entertain a bill to enforce a mere valueless abstract right, and the court will, of its own motion, raise the point for its own protection.</p> <p>2. Same—Appeals in.—In chancery, an appeal is, in effect, a retrial of the case upon the record of the court below, with presumptions that conclusions there drawn from oral testimony are correct. All matters, whether of discretion or positive law, are subject to review.</p>

<p>1. Superior Court—Its Jurisdiction.—The Superior Court of Cook County is not a court of like jurisdiction with that of a justice of the peace within the meaning of section 3 of the act of 1891 (laws 1891, 151), providing that no suit shall be brought upon a judgment of a justice of the peace in a court of like jurisdiction within the same county where such judgment was rendered until the expiration of seven years next after its rendition.</p>

Assumpsit, on cashier’s check. Appeal from the Superior Coiu-t of Cook County; the Hon. George W. Blanks, Judge, presiding. Submitted at the March term, 1895, of this court and affirmed.

Mandamus, to compel the restoration of a suspended member of the Board of Trade, etc. Appeal from the Superior Court of Cook County; the Hon. Henry W. Freeman, Judge, presiding. Submitted at-the March term, 1895, of this court. Statement of the Case. This was a proceeding to compel, by writ of mandamus, the restoration of the petitioner to the privileges of a member of the Board of Trade; he having been by order of its directors suspended, indefinitely.

<p>Mechanics’ Liens.—Error in the Circuit Court of Cook County: the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1. Master and Servant—Use of Defeetive Appliances.—A servant obeying improper orders of a superior or using for a brief time defective appliances under a promise of immediate repair, and injured in consequence, is not without remedy.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Submitted at the March term, 1895, of this court.

<p>Assumpsit.—Breach of contract. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Submitted at the March term, 1895, of this court.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Submitted at the March term, 1895, of this court.

<p>Assumpsit.—Money loaned. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Submitted at the Maxell term, 1895, of this court.</p>

Assumpsit, for the recovery of money paid by mistake. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Declaration, special and common counts; pleas, general issue and statute of limitations; trial by the court; finding and judgment for defendant; appeal by plaintiff; submitted at the March term, 1895, of this court.

<p>1. Lease—Covenant Not to Assign—Breaches.—An assignment by-mere operation of law, as a sale upon execution, is not a breach of a covenant in a lease not to assign.</p> <p>2. Voluntary Assignments— Not a Breach of a Covenant Not to Assign, etc.—A voluntary assignment, under the statute, for the benefit of creditors, by a lessee, is not a breach of a covenant in his lease not to assign the same.</p> <p>3. Covenants—To be Strictly Construed.—A covenant in a lease not to assign the same, is to be strictly construed.</p>

<p>Creditor’s Bill.—Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Submitted at the March term, 1895.</p>

Trespass on the Case, for a wrongful delivery of a bill of lading. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Seabs, Judge, presiding. Submitted at the March term, 1895; reversed.

Bill to Rescind a Contract.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Submitted at the March term, 1895, of this court; reversed and remanded with directions.

Attachment and Garnishee Proceedings.—Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Submitted at the March, 1895, term of this court and dismissed. Statement of the Case.

Bill for Belief.—Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Submitted at the March term, 1895. Statement of the Case.

Submission Under the Act to Avoid Delay in the Administration of Justice.—Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the March term, 1895. Statement oe the Case. This was a proceeding wherein certain matters in controversy were submitted to the Honorable Murray F. Tuley, one of the judges of the Circuit Court of Cook County, under the provisions of an act approved June 17,1887 (Hurd’s Eev. Stat.

<p>1. Bills of Exchange—Form of, by Indorsement,—The indorsement—</p> <p>“ Peabody, Houghteling & Co.,</p> <p>Pay to the order of Empire Building Co.,</p> <p>John R. Bowes,”</p> <p>on the following instrument:</p> <p>“ $500 No. 4,794.</p> <p>Chicago, June 17th, 1892.</p> <p>To E. J. Bowes, Jb., & Bhos.:</p> <p>This is to certify that the Empire Building Co., contractor for the entire work of your building No. — Fulton street, is entitled to a payment of five hundred dollar's by the terms of the contract.</p> <p>Contract........................ $71850</p> <p>Extra work...................Remarks.</p> <p>Deductions......................</p> <p>Total</p> <p>Previous issues, $6,325...........</p> <p>Present issue................$500 6,925</p> <p>Balance $925</p> <p>Wilson & Mabble.</p> <p>By A. H. Dodd.”</p> <p>is held to be a bill of exchange on Peabody, Houghteling & Co., payable at sight, the sum being adopted from the face of the instrument.</p> <p>2. Same—Renewed by Indorsement.—Any indorsement of a bill of exchange may be Considered as a new bill drawn by the indorser on the acceptor in favor of the payee.</p> <p>3. Same—Presenting for Payment, to Charge Drawer.—To charge a person as drawer of a bill of exchange, the bill must be presented for payment, and notice of non-payment given according to the law merchant.</p>

Assumpsit, on the contract stated in the opinion of the court. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Submitted at the March term, 1895, of this court and affirmed.

Creditor’s Bill.—Appeal from the Superior Court of Cook County; the Hon. William G-. Ewing, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case. Held: at the same time, four notes aggregating $8,000, made by the said Kaldenberg corporation, payable to the order of the bank for loans or renewals of loans, all of which notes matured in April and May, 1893.

<p>1. Pleadings — Validity of Ordinances.—Allegations concerning fundamental facts upon which the validity of an ordinance depends must be more precise and certain than to show, upon mere information and belief, what may, under such an allegation, have its existence only: and the rule that all allegations will be most strongly construed against the pleader, has especial application when the validity of the act of a public corporation like a city, is involved.</p> <p>2. Cities and Villages—Determining the Sufficiency of Petitions for Public Improvements.—In determining the sufficiency of a petition for a public improvement, a city council acts in a quasi judicial character, and its judgment upon the sufficiency of the petition, in the absence of allegations of fraud, will not be inquired into by the courts upon the application of a private person.</p> <p>3. Damages—Public Improvements—Remedy at Daw.—If a person is damaged by a public improvement his remedy is at law and not in equity.</p>

<p>1. Damages—Prospective Profits.—Calculations as to prospective profits in other enterprises in which a party plaintiff would have engaged had his contract with the defendant been fulfilled, are too remote to form the basis of damages occasioned by the breach of the contract.</p> <p>2. Same—Failure to Supply a Machine.—The damage for a failure to supply a machine is the value of the use of it.</p> <p>3. Prospective Profits—Not Recoverable as Damages.—When a party, being about to embark in a new business, is wrongfully prevented by another, he can not recover expected profits because there can be nothing to show that such profits would have been made.</p> <p>4. Interest—On Instruments in Writing.—It is proper to allow interest upon a balance due upon a written contract for the furnishing of an ice machine; such a contract is an instrument in writing within the meaning of the statute.</p>

Assumpsit for work, labor and services. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard at this court at the March term, 1895.

•Assumpsit, for assessments in a mutual insurance company; appeal from the Circuit Court of Cook County; the Hon, John Gibbons, Judge, presiding. Heard in this court at the March term, 1895; reversed and remanded unless a remittitur,is filed, etc. Statement of the Case. This was an action to recover an assessment made by order of court upon the members of a mutual insurance company.

Creditor’s Bill, upon a judgment obtained by default. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case. This is an appeal from a decree by the Superior Court of Cook County in favor of appellee.

Debt, for the violation of an ordinance. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case. This suit was brought under a section of the building ordinance, and is to recover the penalty for a violation of the ordinance. The section of the ordinance is as follows: “ Sec. 49.

Agreed Case.—Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case.

<p>Assumpsit.—Account stated. Appeal from the Circuit Court of Cook County; the Hon. Edmund W, Burke, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the March term, 1895..</p>

<p>1. Contracts for the Sale of Land—Implied Conditions.—In every contract for the sale of land, a condition is implied for a good title, and if the sale is of a lease, the implied condition is that the lessor had such a title as made the lease good.</p> <p>2. Pleading—Necessary Allegations.—It is a general rule applicable, to pleadings in equity as well as at law, that whatever is necessary to entitle a party to relief, must be alleged.</p> <p>3. Same—Waiver of Objections to Title—What Amounts to.—An agreement for the sale of a leasehold estate provided that if an attorney (naming him) should be of the opinion that the title was not suchas the agreement called for, a deposit should be returned, and the bill for specific performance of the agreement averred that the attorney passed upon the abstract of title and was of the opinion that the title was such as the agreement called for. It was held that such approval was no part of the contract itself, and was at most but a waiver of objections, if there were any, to the title of the premises in question.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior ' Court of Cook County; the Hon. George W. Blanks, Judge, presiding. Heard iu this court at the March term, 1895.

Assumpsit, for coal sold and delivered. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case. This was an action td recover for coal sold and delivered. The action was in the court below claimed and treated as being based upon a written contract introduced in evidence.

Trespass on the Case.—Negligence in the delivery of a telegraph message. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the March term, 1895.

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1895.

<p>Trover.—Appeal from the Circuit Court of Cook County; the Hon, Frank Baker, Judge, presiding. Heard in this court at the March term, 1895.</p>

Assumpsit, for a breach of contract. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1895. Statement Of the Case. This was an action brought to recover damages for breach of a contract for the conveyance of certain real estate. Defendant filed a plea of the general issue and a plea of the statute of frauds.

<p>1. Champerty—Contract to Pay a Portion of the Amount Recovered is Not—There is no law or-public policy in this State which deprives a person claiming a right, from contracting to pay for legal services, in vindicating it, a stipulated portion of the thing, or of the value of the thing, when recovered, dependent solely upon such recovery, instead of paying or contracting to pay absolutely, a sum certain,</p> <p>2. Attorneys and Counselors—Contingent Fees—Damage Suits.— A person having a right of action for personal injuries sustained, may lawfully contract with an attorney at law to prosecute a suit for the recovery of damages for a contingent fee, to be paid from the amount recovered.</p> <p>8. Assignment—Of a Right of Action—Effect Of.—The assignment of an interest in a right of action for a personal injury which is to be prosecuted in the name of the assignor, with an agreement to assign a corresponding interest in the judgment which might be recovered in the future, is equivalent to an equitable assignment of the specified interest in the judgment the moment it is perfected, and binds all parties having notice or knowledge of the same.</p> <p>4. Attorney and Client—Contracts Between—When Binding upon the Adverse Party.—A person having a cause of action against a railroad company for personal injuries, contx-acted with an attorney to prosecute a suit for the same for a contingent fee of one-half the amount of the recovery, and agreed to assign one-half of the judgment when recovered. During the absence of the attorney from the court, the railroad company, with knowledge of the contract existing between the plaintiff and the attorney, compromised the action by allowing judgment for a sum certain to be entered against it, and satisfied the same by paying the full amount to the plaintiff. The plaintiff having failed to pay the attorney, and being insolvent, he brought suit against the railroad company for an amount equal to one-half of the judgment and recovered.</p> <p>5. Appellate Court Practice—Abandoned Points.—A. point which, under the assignment of errors, might have been raised by the appellant, but which was not, must be considered as waived or abandoned.</p>

<p>1. Mechanic’s Liens.—Fraud in Building Contracts.—In proceedings under section 29, chapter 82, R. S., entitled “ Liens,” providing that if it appears to the court that the owner and contractor fraudulently, for the purpose of defrauding sub-contractors, fixed an unreasonably low price in the original contract for the erection of a building, such fraud must be alleged and clearly shown by the evidence in order to authorize the court to act.</p> <p>2. Same—Proceedings Under Section 29.—A bill in equity filed under section 28, chapter 82, R. S., entitled “ Liens,” is not an appeal to the conscience of the court to do equity, but is a method to ascertain and dispose of purely statutory liens, and it is only persons having liens under the statute that a decree in favor of can be rendered.</p> <p>8. Master in Chancery—Conclusions on Contradictory Evidence. — Fraud.—On pure questions of fact the report of the master, where the evidence is Voluminous and contradictory, carries with it much of the weight and conclusiveness which rightfully attaches to the verdict of a jury, but the question as to whether fraud follows from a state of facts is necessarily a mixed question of law and fact.</p> <p>4. Fraud—Under the Mechanic's Lien Law.—The fraud that is provided against under section 29, chapter 82, R. S., entitled “Liens,” is that which has its inception between the owner and the original contractor for the ultimate purpose of defrauding the sub-contractor.</p> <p>5. Same—Mistaken Opinion.—A mistaken opinion as to the value of city lots is not equivalent to a fraud, as contemplated by section 29, chapter 82, R. S., entitled “Liens.”</p> <p>6. Building Contracts—Limitations on the Power to Make.—The owner and contractor may contract upon such terms as they can agree to, provided only that they do not fraudulently combine for the purpose of defrauding sub-contractors, by fixing an unreasonably low price for the building.</p> <p>7. Sub-contractors—Bight to Examine the Original Contract.— The right of a sub-contractor to a lien depends upon the contract between the owner and the original contractor, and it is his privilege to inform himself about the terms of the original contract, and if not satisfied with them, to refuse to deal with the contractor.</p> <p>8. Sub-contractor’s Lien—Allowance of a Special Privilege.—The allowance of a lien to a sub-contractor is a special privilege, audit is not unreasonable to require him to look to the principal contract to ascertain whether it is such as to justify him in becoming a contractor under it.</p>

Trespass on the Case, for damage to goods from dust, etc. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1895.

Bill to Compel a Reconveyance of Letters Patent.—Appeal from the Circuit Court of Cook County; the Hon.Richard S. Tuthill, Judge, presiding. Heard at the March term of this court, 1895. Statement of the Case. This was a bill in chancery to compel the reconveyance of certain United States Letters Patent from the defendants to the complainant. On hearing, the prayer of the bill was allowed. Four defenses were interposed, viz: “ First.

<p>1. Forcible Detainer—Possession—Not Title Involved.—The right of possession only, and not the title, is involved in forcible detainer proceedings.</p> <p>S. Same—Appeals.—There is no issue in an action of forcible entry and detainer as to the title of the premises, and appeals are taken to the Appellate Court.</p> <p>3. Same—Entry upon Vacant and Unoccupied Lands.—An entry upon vacant and unoccupied lands, without right or title, may be either with or without force of arms in order to constitute a forcible detainer after demand for possession.</p> <p>4. Same—Where the Entry is Peaceable.—Where the entry is peaceable, it is the detention after demand for possession that is wrongful and tortious.</p> <p>5. Forcible Entry and Detainer—Under the Statute.—Under the third paragraph of Section 2, Chapter 57, R. S., entitled “ Forcible Entry and Detainer,” an action may bexmaintained where an entry is made into vacant or unoccupied lands or tenements without right or title.</p>

<p>1. Appellate Court Practice—Insufficient Abstracts.—A failure to comply with the rule requiring parties to furnish a complete abstract or abridgment of the record, is a sufficient cause to affirm the decree of the court below.</p>

Trespass on tlie Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1895.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1895.

Assumpsit, on a contract of re-insurance. Appeal from the Circuit Court of Cook County; the Hon. Edward F, Dunne, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case.

<p>1. Short Cause Calendar—Notice upon the Adverse Party—Inattention.—Where an attorney for the plaintiff in an appeal from a justice of the peace served a notice on the defendant in person (no attorney having appeared), and he threw the notice aside without examination or giving his actual attorney any notice of the matter, afterward, upon his motion to set aside the judgment entered, it was held that he guilty of inexcusable negligence and inattention.</p> <p>2. Same—Objections to Mode Where Notice is Given.—The act approved June 1, 1889, commonly known as the “ short cause calendar act,” does not specify of what ten days’ notice shall be given, but where notice is given, if the adverse party has any objection to the suit going upon such calendar, he must appear and make his objections known.</p> <p>3. Guaranty—Not Protected as an Indorsement.—A guaranty of a promissory note is not protected by either the statute concerning negotiable instruments nor by the principles of the law merchant.</p>

<p>1. Mechanic’s Liens Statement Under Section !h—A general statement of the gross amount or balance due for work and material furnished under a contract for the erection of a building during a named period, is not a compliance with Section 4, Chapter 82, R. S., entitled Liens.”</p>

Assumpsit, for the services of an architect. Appeal from the Circuit Court of Cook County; the Hon. Blbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1895. Remittitur ordered. Statement of the Case. This was an action by an architect to recover for the making of plans, specifications, sketches and drawings. The plaintiff claimed the sum of $1,102, for which sum he had rendered an itemized bill.

<p>1. Mechanics’ Liens—Material for Separate Buildings in Gross.—A materialman can have no lien for lumber furnished for erecting six separate buildings on different lots under a contract in gross for the whole, no account being kept of the lumber that went into any separate building.</p> <p>2. Same—Separate Buildings on One Tract.—A lien for material furnished for the erection of separate houses on the same tract of land may be enforced, and the fact that after the making of the contract for such material the tract of land is subdivided so as to locate each house upon a separate lot does not affect the lien.</p> <p>3. Same—Statement Under Section 4.—The statement required by Section 4, of Chapter 82, R. S., entitled “Liens,’’ must specify the dates upon which the materials were furnished, without which there can be no hen.</p> <p>4. Same—Statement—Dates—Presumption as to.—Where a statement of materials furnished contains no date except the one date at the head of the statement the presumption is that such date is that of the making of the statement and not that of the furnishing of the materials.</p>

<p>1. Cities and Villages—Exercise Power Through Ordinances.—In the absence of an ordinance within the terms of which a proposed structure comes, a city can not interfere with its erection.</p>

<p>Assumpsit, for rent. Error to the Superior Court of Cook County; the Hon. James Hutchinson, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1. Pleading—Special Plea Amounting to the General Issue.—A special plea which is in. effect but the general issue is obnoxious to a special demurrer.</p> <p>2. Same—Defenses Tinder Special Pleas, When Admissible Under the General Issue.—Where a defendant files a special plea and the defense set up by it can be shown under the general issue, which is also pleaded, it is not error to sustain a special demurrer to the special plea.</p> <p>3. Practice—Evidence, When to Be Offered Under the General Issue. —Where a defendant pleads both the general issue and a special plea, to which a demurrer is sustained on the ground that it amounts to the general issue, unless he offers evidence of his defense under the general issue and the court rejects the same, he can not avail himself of the point on appeal.</p>

Receivership.—Appeal from an order directing a receiver to pay certain moneys, etc., entered by the Circuit Court of Cook County; the Hon. Thomas Q-. Windes, Judge, presiding. Heard in this court at the March term, 1895.

Assumpsit, on a certificate in an accident insurance association. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1895.

<p>1. Judgments by Confession— Vacation of, etc.—Courts of law exercise an equitable jurisdiction over judgments entered by confession upon bonds and warrants of attorneys.</p>

<p>Bill for Accounting, etc.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1895.</p>

Bill fox Foreclosure and Cross-Bill for a Mechanic’s Lien.—Appeal from the Superior Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1895. Statement of the Case.

Assumpsit, for goods sold and delivered. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1895.

Assumpsit, for an assessment in a mutual insurance company. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1895.

<p>1. Leases—Assignments—Guaranties Not Affected by Other Demises. —When an assignment of a lease is upon the express condition that the assignor shall remain liable for the prompt payment of the rent and performance of the covenants of the lease on his part as therein mentioned, the fact that the landlord demised other premises to the assignee of the lease shortly afterward, does not affect the liability of the assignor under the provisions of the assignment.</p> <p>2. Application op Payments—In the Absence of Directions.—A creditor who receives money from his debtor with no direction as to the application of it, is at liberty to apply it to any debt due from such creditor.</p> <p>3. Landlord and Tenant—Right of Re-entry may be Waived.—If the landlord has a right to re-enter he is not obliged to do so.</p>

<p>Bill for Separate Maintenance.—Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>Assumpsit, against the indorser of a promissory note. Appeal from the Circuit Court of Cook- County; the Hon. Elbridge Hanegy, Judge, presiding. Heard in this court at the March term, 1895;</p>