Volume 59 — Illinois Appellate Court Reports

<p>Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. George F. Blank®, Judge, presiding. Heard in this court at the March term, 1895.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. George F. Blanks, Judge, presiding. Heard in this court at the March term, 1895.

<p>1. Creditors’ Bills—Not Pure Bills of Discovery— Waiver of Answer Under Oath.—Creditors’ bills, under section 49, chapter 22, R. S., entitled “ Chancery,” are not pure bills of discovery, and are not dependent alone upon a discovery, although a discovery may be had under them. And to such bills, even though discovery is required, the answers, although under oath, the oath thereto not being waived, are not conclusive.</p> <p>2. Same—Injunctions and Receivers.—Whether an injunction will be issued or a receiver be appointed upon a creditor’s bill pendente lite, is a matter of discretion with the court.</p> <p>3. Same—Taken Pro Oonfesso —Injunction.—An injunction upon a creditor's bill taken pro confesso may properly issue against the judgment debtor restraining him from disposing of his equitable interests, credits and choses in action, even though no discovery has been obtained.</p>

<p>Assumpsit.—Common counts. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>Bill to Settle a Partnership.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the March term, 1895.</p>

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

<p>Assumpsit.-—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>Bill for an Accounting.—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>

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

<p>1. Insurance—Mutual Fire Companies—Effect of Canceling the Policy. —A member of a mutual fire insurance company, notwithstanding the cancellation of his policy, remains liable upon his premium note for such amounts as may be necessary to pay losses incurred prior to such cancellation.</p>

<p>1. Practice—Verification of Pleas.—A defendant filed a plea of non-assumpsit and a plea denying the execution of the lease sued on, followed by an affidavit of merits, concluding with the sentence, “ This affiant further says that the above and foregoing plea is true in substance and in fact as is therein alleged.” Held, that such an affidavit appended to two pleas verifies neither, and the defense of non est factum is not open to the defendant.</p>

<p>Proceedings Under the Insolvency Act,—Appeal from the Circuit Court of Cook County; the Hon. George F. Blanke, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1. Lease Under Sead—Subsequent Parol Agreement.—It is not com.patent to modify or change the terms of a lease under seal, by proof of a subsequent parol understanding or agreement.</p> <p>2. Same—Surrender of the Estate—Requisites.—-A. lease can not be surrendered by the lessee alone. There must be an acceptance on the part of the landlord.</p> <p>3. Acceptance—Of a Surrender—What is Not Sufficient.—A landlord stated to his tenant, who was holding under a sealed lease, the term of which had not expired, “ I won’t fix up anything for you; if you don’t want to stay here you can move out.” The tenant moved out, and gave the key to his bookkeeper to deliver to the landlord. He left it with the landlord’s wife, who said she was glad of it. On the same evening the bookkeeper informed the landlord of what he had done. The landlord invited him to take a drink as he had done him a great favor. Some time afterward the landlord served a notice on the tenant repudiating the authority of his wife to accept the key. Held, there was no acceptance of the surrender sufficient to relieve the tenant from the payment of rent for the unexpired portion of the term.</p>

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

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

<p>1. Default—When a Party is Not in.—Where a defendant in a garnishee proceeding, having suffered a conditional judgment to be entered against him, was served with a scire facias to appear at the next term of the court to show cause why the judgment should not be final, appeared., and filed with the clerk a motion to set aside the conditional judgment, held, it could not be said he was in default if he had made a motion, which, if sustained, would dispense with an answer.</p> <p>2. Motion—What is Not.—A paper purporting to be a motion in a cause filed with the clerk of the court without notice to anybody interested, and which may never have come to the knowledge of the court or opposing counsel, is not such a motion as may thereafter be exhumed and held sufficient cause for undoing all that has been regularly done.</p> <p>3. Same— When Considered as Overruled.—Entering judgment in -a* cause is in effect an overruling of all motions pending prior thereto in the cause.</p> <p>4. Judgments—Interest.—The statute authorizes the sheriff to collect interest from the date of the judgment, and usage in this State has justified a judgment for costs, without stating the amount. But in general, a money judgment must be for a fixed sum.</p>

<p>Bill for Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Toley, Judge, presiding. Heard in this court at the March term, 1895.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1895.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the March term, 1895.

Assumpsit, on transcript from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1895.

<p>1. Peactice—Suit for the Use of Others.—When a suit shows upon the record that it is brought for the use of others, but nothing appears in the pleadings or evidence to show that they have any interest in the subject-matter of the suit, their names may be treated as surplusage.</p> <p>2. Peactice—Denial of Instrument—Unverified Plea.—The execution and delivery of an insurance policy as a complete instrument can not be denied under an unverified plea.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County, the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1, Sureties.—Equitable Defenses in Suits at Law.—A defense upon equitable grounds by a surety, is available in an action at law upon an injunction bond.</p> <p>2. Defenses.—Agreements Not to Sue.—An agreement never to sue upon a particular demand is a bar to an action on such demand and may be so pleaded, and will have the effect of a release.</p> <p>8. Same—Personal to One Defendant.—In an action upon a joint and several injunction bond against the principal and sureties, a defense personal to one of the sureties may be pleaded by him alone.</p> <p>4. Same—What are Personal Defenses.—Personal defenses include not only infancy, bankruptcy and the like, but all defenses which apply only to and are personal to one defendant.</p>

<p>1, Practice—Suits on Promissory Notes.—It is not necessary to prove the amount due upon a promissory note. The computation of the amount may be made by the jury.</p> <p>2. Same—Cross-examination.—A cross-examination is to be confined to the subject of the examination in chief, and if the subject-matter is wholly immaterial to the issue the cross-examination may be denied.</p>

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

<p>1. Instructions—Ordinary Care on the Part of Children.—An instruction for the plaintiff in an action for personal injuries which states that the law does not require the same degree of care on the part of a child between the age of eight and nine year’s that it does on the part of persons of mature age, is misleading.</p> <p>2. Infants— When They Acquire the Capacity of an Adult.—The law can not fix any precise limit of age when a minor acquires the capacity of an adult.</p>

<p>1. Evidence—Account of Sales Found Among Papers of a Deceased Person. —On the trial of a claim against the estate of a deceased person, accounts of sales, rendered by commission merchants in Chicago to deceased for cattle of the claimant, found among the papers of the deceased, are not competent to show that the books of the deceased were incorrect.</p> <p>2. Same—Reputation of Deceased.—On the trial of a claim against the estate of a deceased person, evidence that the deceased was prompt to pay his debts and was reputed to be a man of credit is proper for the purpose of rebutting any circumstantial or other evidence that his books were improperly kept or that he had not included all his items of accounts in them,</p> <p>3. Limitations—Claims Against Deceased Persons.—Where the deceased person did not occupy the relation of a trustee to a person filing a claim in probate against his estate, but merely that of an agent to transact his business, the statute of limitations will run against him as regards his liabilities to him.</p> <p>4. Books of Account—When Prima Fade Correct.—Where, on the trial of a claim in probate, the claimant introduces the books of the deceased as evidence, such books will, as against such claimant, be prima fade correct.</p>

Assumpsit, for work, labor, etc. Appeal from the Circuit Court of Iroquois County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the May term, 1894.

<p>Action for Taking Exempt Property.—Appeal from the Circuit Court of Henry County; the Hon. John J. Glenn. Judge, presiding. Heard'in this court at the May term, 1894.</p>

Prosecution, for allowing animals to run at large. Error to the County Court of Mercer County; the Hon. J. S. Connell, Judge, presiding. Heard in this court at the December term, 1894.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Whiteside County; the Hon. John D. Crabtree, Judge, presiding. Heard in this court at the May term, 1894.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the May term, 1894.

<p>Bill for Injunction and Relief.—Error to the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the December term, 1894.</p>

<p>1. Guardian—Taking his Ward into his Family.—When a guardian takes his infant ward into his own family and cares for it as one of his family, the law will presume that he intended to charge the estate with its support, and all reasonable expenses will be allowed.</p> <p>2. Same—Settlement of Accounts—Equitable Rules.—In the settlement of an estate and the accounting of guardians equitable rules are to be applied.</p>

<p>1. Practice—Objections to Evidence.—If a party litigant sued jointly with his attorney desires to present to the court the question as to whether the transactions and declarations of his attorney relating to the subject-matter of the suit are evidence against him, he should make his objections on that ground, and ask to have the effect of the evidence limited to his co-defendant. A general objection is not sufficient.</p> <p>2. Same—Objections Must be Made in Apt Time.—An objection to the admission of evidence not made on the trial in the court below can not be made in the Appellate Court.</p>

<p>1. Contributory Negligence—Failure to Keep Gates Closed.—It is the duty of the person whose stock is occupying lands adjoining a railroad to keep the gates at farm crossings closed, and any negligence on his part, or on the part of his servants, in that respect, will be fatal to a recovery of damages.</p>

<p>1. Evidence— What is, of a Cause of Action.—The following instrument:</p> <p>D. Rankin, Prest. Joseph Stevenson, Vice Prest. B. T. O. Hubbard, Cash.</p> <p>2781.</p> <p>First National Bank of Monmouth.</p> <p>Capital, §75,000.</p> <p>Monmouth, Ill., Feb. 15, 1884.</p> <p>T. R. Squires has this day left eight hundred dollars to be loaned for his use at not less than eight per cent interest, payable not to exceed six months, on return of this memorandum.</p> <p>B. T. 0. Hubbard,</p> <p>(Scroll.)</p> <p>is held to show, prima facie, a cause of action.</p> <p>2. Banks—Powers of the Cashier.—A cashier of a bank is necessarily the general agent of the bank in dealing with customers in money, notes and bills, the receipt, deposit, transfer and payment of them. It is indispensable to the bank and necessary for the protection and security of customers that he should exercise these powers and that his acts should bind Ms employers.</p> <p>3. Same—Power to Loan Money for Customers.—Receiving money to be loaned for a customer is not against any express provisions of the banking law or any general law, nor is it immoral, or against public policy; and although the bank might, after receiving the money, refuse to go ahea,d and make the loan, it can not refuse to repay the money.</p>

<p>Assumpsit.—Breach of contract. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1894. •</p>

<p>I. Pleadinq—After a Cause Has Been Reversed and Remanded.— 'After a cause has been reversed and remanded, an additional plea filed by-leave of the court which presents no new defense, or raises any question not passed upon, is bad on demurrer.</p>

<p>1. Practice—Process Returnable, When—Attachment.—Section 1, Chapter 110, R. S., entitled “ Practice,” providing that the first process in all actions shall be made returnable on the first day of the next term of court in which the action may be commenced, and if ten days shall not intervene between the time of the suing out of the same and the next term of court it shall be made returnable to the next succeeding term, governs the issuing of writs of attachment the same as other process.</p>

<p>1. Sales—Upon Condition—Title—When it Does Not Pass.—Where a person ships goods to another to be sold,and an account kept of sales to be reported monthly, upon receipt of which a bill for the same was to be rendered, payable on the 15th day of the following month, it was held that by such an arrangement the person shipping the goods did not part with his title to the goods when shipped, and was not estopped from asserting his ownership to such as were unsold, as against judgment creditors of the person making the sales.</p> <p>2. Personal Property Eights—Owner’s Consent.—It is a cardinal principle of the law of personal property, that no man can be divested of it without his consent.</p> <p>3. Factors—Can Not Pledge Their Principal’s Goods.—A factor of goods can not pledge them as against his principal, even though the pledgee has no notice of his relation to them and finds them in his possession.</p> <p>4. Same—Execution Creditors Levy upon the principal’s Goods.—An execution creditor of a person acting in the capacity of a factor so far as the principal’s goods are concerned, stands in no better light than a pledgee, and can by levy obtain no better title than his judgment debtor has.</p> <p>5. Evidence—Secondary proofs—Letter Press Copies.—Letter press copies of correspondence, where the originals are in the possession of the adverse party who refuses to produce them, maybe properly received in evidence.</p>

<p>Bill in Aid of Execution.—Appeal from the Circuit Court of Ogle County; the Hon. John D. Crabtree, Judge, presiding. Heard in this court at the December term, 1894.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Whiteside County; the Hon. James Shaw, Judge, presiding. Heard in this court at the December term, 1894.

Assumpsit, for agents’ compensation, etc. Appeal from the Circuit Court of Grundy County; the Hon. Dorrance Debell, Judge, presiding. Heard in this court at the December term, 1894.

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in. this court at the December term, 1894.</p>

<p>1. Partnership—Transfer of Assets by Partner.—A transfer by one partner of the firm assets in the payment of a bona fide existing firm debt is valid, unless the purchasing creditor has notice prior to the consummation of the sale that the copartner does not consent to the transfer.</p> <p>2. Same—Persons Holding Themselves Out as Partners—Estoppel.— A person holding himself out as a partner of another to third persons is estopped to deny the existence of such partnership as to such third persons dealing on the faith of its existence.</p> <p>3. Same—Powers of Persons Held Out by a Firm, as Partners.— When a person holds another out as his partner, and a person having no notice to the contrary deals with him as such, such person will have a right to regard him as having all the powers of a partner, and such powers of disposition of the firm assets in payment of the firm indebtedness as arises out of such relation.</p>

Assumpsit.—Balance due for goods sold. Appeal from the County Court of DeKalb County; the Hon. O. A. Bishop, Judge, presiding. Heard in this court at the December term, 1894.

<p>1. State’s Attorneys—Fees on Setting Aside Forfeitures—Costs .— The statute, allowing the state’s attorney a fee in each case where the forfeiture of a recognizance is set aside at the instance of the defense in addition to the ordinary costs, means a valid order setting aside such forfeiture and one that stands unreversed. All costs depending upon the setting aside of the forfeiture of a recognizance, fall with the reversal of the order.</p>

<p>1. Coroners—When a Justice of the Peace May Act.—A coroner is entitled to perform the duties and receive the fees of his office, and it is only in the event of his absence from the county that the statute authorizes a justice of the peace to act in his place.</p>

■ Assumpsit, for money had and received. Appeal from the Circuit Court of Woodford County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1894.

<p>1. Pleading—Defective Declaration.—A declaration against a municipal corporation founded upon a contract to renew electric lamps if called upon by the corporation, and the necessity appears for so doing, at cost, which fails to show that the plaintiff was called upon by the corporation to renew the lamp, is fatally defective.</p>

Assumpsit, for services of real estate agent. Appeal from the County Court of Boone County; the Hon. Wales W. Wood, Judge, presiding. Heard in this court at the December term, 1894.

<p>1. Execution Sale—What Interests Not Subject to.—By taking domestic animals to care for and feed until ready for market, for a compensation, the feed being furnished by the owner, a person does not acquire such a right of ownership in the property as is subject to levy and sale upon execution against him.</p> <p>2. Aghsteb’s Lien—IVoi Subject to Execution Sale.—An agister’s lien is a personal privilege, which the person entitled to may avail him of or waive as he pleases. It is a personal lien not liable to voluntary transfer and can not be subject to a writ of execution.</p>

<p>1. Ratification—Must be with a Full Knowledge of the Facts.—The recognition and promise to pay a note signed by an unauthorized person will not render the party liable on the same, unless such recognition and promise is made with a full knowledge of the facts affecting his rights.</p> <p>2. Partners—Tenants Are Not.—The court sets out the lease and its provisions, and holds by its terms there was no general partnership authorizing the lessee to purchase stock or other property on joint account or on account of the lessor.</p> <p>3. Husband and Wife—Husband’s Agency—When Not Presumed.— A husband can not bind his wife for his acts in buying stock or in authorizing her tenant to buy on joint account with her, and sign notes with her name and his, simply from the fact that he was the general agent of his wife to look after the farming operations of her land.</p> <p>4. Instructions—Duty of the Court in Giving.—It is improper for the court to give the jury an option as to which of certain instructions they may take as the law. The court is the judge of the law in all civil cases, and its instructions should be consistent and harmonious.</p>

<p>I. Instructions—Assuming Matters Not Proven.—An instruction which assumes the existence of a partnership between the parties litigant, in the absence of any evidence tending to show such existence, is erroneous.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the December term, 1894.

<p>Indebitatus Assmnpsit.—Appeal from the Circuit Court of Kane County; the Hon. Clark W. Upton, Judge, presiding. Heard in this court at the December term, 1894.</p>

<p>Trespass, for taking goods. Appeal from the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding. Heard in this court at the December term, 1894.</p>

<p>1. Insurances—Post Mortem Examinations—Notice.—In the absence of any law or provision of the contract of insurance requiring that the company should be notified of the time and place when a post mortem examination would be held for the purpose of determining the cause of the death of a person insured against death by accidental means, want of such notice does not affect the competency of the evidence of facts developed at such examination. Its weight and influence with the jury might be affected by secrecy or a partisan character in the proceeding if such facts appeared, but its admissibility is not affected by a failure to give notice.</p> <p>2. Same—Notice of Death.—The notice, under a provision of an insurance policy requiring that immediate notice shall be given in case of the death of the insured, means a notice within a reasonable time in view of the circumstances surrounding the case.</p> <p>3. Same—Sufficiency of Proofs.—Where the policy was conditional that the loss was to be paid within ninety days after sufficient proof of the death and cause of the same, and the blank proofs furnished by the company contained a blank certificate to be filled out by the attending physician, which such physician refused to sign, it was held, that the contract did not require the beneficiaries under the policy to furnish the certificate of the attending physician, but referred to the kind of proof required.</p>

<p>Bill for Belief.—Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1894.</p>

<p>1. Contracts—Construction of.—In a contract made with a corporation for service, it was provided that should the work of the employe prove not satisfactory to the officers of the company, they should have the right to discharge him after giving five days notice. In construing the contract it was held that the company had an unqualified right to discharge the employe, if in good faith its officers were dissatisfied with his work, and it was error to instruct the jury that he could not be legally discharged unless the officers not only acted in good faith but in a reasonable and not in an arbitrary manner, as it in effect told the jury that the officers must have good grounds for dissatisfaction.</p> <p>8. Same—Instruction—Duty of the Court.—It is the duty of the court and not the jury, to determine the legal effect of a contract.</p> <p>3. Tender—0/ Performance—Notice by Discharged Employe.—Actual notice by an employe discharged before the expiration of bis term of employment to his employer that he is ready and willing to perform the contract, and an offer to perform, is not necessary in all cases.</p> <p>4. Condonation—Does Not Apply to Causes of Dissatisfaction—Contracts for Services.—Under a contract providing for the discharge of an employe if his work proves not satisfactory, it is error to instruct the jury that if he was continued in the employment after his employer became dissatisfied with his work, the acts causing the dissatisfaction would be condoned, and the employer could not for that reason lawfully discharge the employe.</p> <p>Plaintiff’s first, third and fifth instructions, held erroneous:</p> <p>1. The court instructs the jury that if you believe from the evidence in this case that it was the intention of the parties to the contract between the Alexis Stoneware Manufacturing Company and Joseph P. Young, that the work performed by said Joseph P. Young under the direction of the officers of said company should be satisfactory to the company, then the company could not arbitrarily discharge the plaintiff from its services, but must do so in good faith, and the burden of proof to show that he was discharged in good faith for the reason that his work in the line of his employment was not satisfactory to the officers of the defendant company.</p> <p>3. The jury are further instructed that under a contract which gives either party the right to exercise his judgment as to whether the other party is giving satisfaction or not, and before an employer would be allowed to discharge an employe under such contract he must show that he acted in good faith and in a reasonable and not in an arbitrary manner, before he can invoke or exercise this provision of the contract.</p> <p>5. The court instructs the jury that condonation is the forgiveness on the part of the party complaining of the act complained of, and may be implied from the acts of the parties, and if the jury from the evidence in this case believe that the plaintiff performed his work at any time in a manner that was not satisfactory to them, yet if they believe from the evidence and circumstances in proof in this case that the plaintiff was continued in the defendant’s employ after knowledge of such acts with which the defendant was dissatisfied, then the acts complained of were condoned, and the defendant company could not for this reason discharge the plaintiff.</p> <p>Defendant’s third refused instructiont</p> <p>3. The law presumes that all men are fair and honest—that their dealings are in good faith and without intention to wrong or defraud others; when a transaction called in question is equally capable of two constructions, one that it is fair and honest and in good faith, and one that it was dishonest and in bad faith—then the law is that the fair and honest construction must prevail, and the transaction called in question must be presumed to be fair and honest and done in good faith.</p>

<p>1. Continuances—Insufficient Application.—An application for a continuance on the ground of the absence of a material witness, stating that such witness left the county and that the applicant was unable to1 ascertain his residence, but not showing that if further time were given his place of residence could be ascertained, is insufficient for that reason and properly denied.</p> <p>2. Acceptance—When Verbal, Sufficient.—A verbal acceptance of an order to pay money is sufficient inlaw.</p> <p>3. Bills op Sale—0/ Property in the Possession of Another.—A bill of sale of property in the possession of another transfers the title subject to the rights of such person having the possession.</p>

<p>I. Practice—Reversed, But Not Remanded.—Where a party upon his own showing has no cause of action, a judgment in his favor will be reversed and the cause will not be remanded.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of La Salle County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the December term, 1894.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Henry- B. Willis, Judge, presiding. Heard in this court at the December term, 1894.

<p>1. Fraud—Rescission of Sales.—When goods have been purchased upon a credit, and the vendor elects to rescind the sale and recover possession of the goods because of fraud on the part of the vendee, to sustain a recovery, it must appear that the misrepresentation complained of was a material one, that it induced the sale, that it was known by the vendee to be false, and that at the time of going through the form of a purchase he entertained the intention of not paying for the goods.</p> <p>2. Same—The Qist of the Action.—In an action of replevin for the recovery of goods obtained by fraud, the question as to whether the purchaser expected or intended to pay for them when he purchased them, or whether he intended to cheat the vendor out of them, is the very gist of the fraud.</p> <p>3. Same—False Representations.—In order to rescind a sale of goods on the ground of false representations, the representations must have been such as were calculated to deceive a person of common prudence and make him the dupe of deception.</p>

<p>Distress for Rent.—Appeal from the County Court of La Salle County; the Hon. Benjamin F. Lincoln, Judge, presiding. Heard in this court at the December term, 1894.</p>

<p>Trespass on the Case.—Overflow of water, etc. Appeal from the Circuit Court of Lexington County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the December term, 1894.</p>

<p>Debt, for a statutory penalty. Appeal from the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the December term, 1894.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the December term, 1894.

<p>1. Tenants—Right to Remove Building.—A divorced woman was occupying a hotel building for a fixed term under a decree for alimony. The hotel having been destroyed by fire, she borrowed money to erect a building in its place, upon condition, if the loan was not paid the lender might remove it. The building was placed upon the foundation walls of the former one in such a manner that its. removal would not injure them. Held, that under the circumstances, she could lawfully remove the building at the end of the term.</p>

<p>Divorce and Alimony.—Appeal from the Circuit Court of Jo Daviess County; the Hon. James Shaw, Judge, presiding. Heard in this court at the December term, 1894.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1894.</p>

<p>1. Insurance—Assessment Unpaid—Poliey Suspended.—If an assessment made upon its members by a mutual insurance company is not .paid, then the policy of the'delinquent member is suspended, provided the assessment was valid and binding upon such member; but it is otherwise if the assessment is invalid and creates no right of action against such member.</p> <p>3. Same—Power of Mutual Companies to Make Assessments for Anticipated Losses.—The power of a mutual insurance company to make and enforce an assessment to create a fund for the payment of anticipated losses which had not accrued, but which would probably accrue in the future, must be found in the charter and by-laws of such company or it does not exist.</p> <p>3. Same—Defense of Unpaid Assessments—Burden of Proof.—When a mutual insurance company relies upon the failure of the insured to pay his assessments and a consequent suspension of his policy as a defense to an action upon it, the company can only succeed by showing an assessment in accordance with the contract under the rules of the company governing the same.</p> <p>4. Same—Assessments by Custom.—A custom of making assessments on the part of the managers of a mutual insurance company does not operate to confer a power to make such assessments. Mere usurpations of power can not create a right for the future, and the acquiescence by payment does not prevent his objecting to a continuance of the practice.</p>

<p>Certiorari.—Drainage proceedings. Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the December term, 1894,</p>

Trespass on the Case.—Damages from changing the grade of a street. Appeal from the Circuit Court of LaSalle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the December term, 1894.

Trespass, for taking personal property. Appeal from the Circuit Court of Winnebago County; the Hon. James Shaw, Judge, presiding. Heard in this court at the December term, 1894.

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Winnebago County; the Hon. John D.-Crabtree, Judge, presiding. Heard in this court at the December term, 1894.</p>

Trespass on the Case.—Injuries resulting from the bite of a dog. Error to the Circuit Court of Grundy County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the December term, 1894.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding. Heard in this court at the December term, 1894.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding. Heard in this court at the December term, 1894.

<p>1. Freehold—When Not Involved.—A freehold is not involved in a proceeding to have a conveyance absolute of real estate declared a mortgage.</p> <p>2. Verbal Contract—To Overcome a Deed—Measure of Proof.— When a verbal contract is set up to overcome and defeat a deed, the proofs must be of a clear and convincing character.</p>

<p>1. Release—To be Under Seal When the Sum Paid is Less than the Sum Owing.—When the amount of a debt is fixed and certain, the payment of a lesser sum in payment of a greater does not amount to a satisfaction of the whole without a release under seal, although the rule is otherwise when the amount of the debt is unascertained, or where the payment of a less sum of money and some other thing which “ it shall be intended might be more beneficial to the creditor than the money in respect of some circumstances.”</p> <p>2. Appellate Court Practice—Abstracts.—A party bringing a cause to this court must furnish and file a complete abstract or abridgment of the record. The intention of the rule is to require a presentation in the abstract, in substance, of those parts of the record upon which error is assigned. Any material departure is fatal to the appellant’s right to a hearing on the merits.</p> <p>3. Same—Exceptions, Sow Taken.—A general exception can not be taken to several rulings as an exception in gross, but each exception must be taken to each ruling as it arises in the trial.</p>

<p>1. Continuances—Illness of Attorney.—Where a party asked to have a case continued because of the absence of his attorney, who, he stated, was too ill to be present, no other evidence of such illness appearing, the continuance was properly refused.</p> <p>2. Ad Damnum—Insufficiency of, Not to be Raised on Appeal.— When the judgment recovered is greater than the ad damnum, the objection must be made in the court below; it can not be raised for the first time in the Appellate Court.</p>

Trespass on the Case, for deceit in the sale of a house. Error to the Superior Court of Cook County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the March term, 1895.

Assignment, 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 March term, 1895.

<p>1. Garnishment—Justice's Jurisdiction.—The jurisdiction of a justice of the peace in garnishee proceedings is not affected by the amount the garnishee defendant may owe.</p>

<p>Proceedings Under the Act Relating to Assignments for the Benefit of Creditors.—Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>Assignment for the Benefit of Creditors.—Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in this court at the March term, 1895.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. George F. Bla.nke, Judge, presiding. Heard in this court at the March term, 1895.

<p>1. Assignments for the Benefit of Creditors—Power of the County Court in Administration.—In the administration of insolvent estates under the act relating to assignments for the benefit of creditors, so long as the estate of the insolvent remains to be distributed, the County Court has power to revoke or alter any former order or action in relation to the administration of the estate.</p> <p>2. County Courts—Power to Vacate Orders After the Term—Insolvent Estates.—The rule that orders of a court of record can not be vacated or altered after the term has passed does not apply to orders made by the County Court in the administration of the estate of an insolvent, so long as the estate remains to be distributed.</p>

Trespass, for an assault and battery. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1895.

Trespass, for assault and battery. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1895.

<p>Assumpsit, for services, etc. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1. Mechanic’s Lien—Contracts for, Partly Expressed and Partly Implied.—The court states the case and holds every essential to a contract which furnishes a basis for a lien, proved.</p> <p>2. Variance—Between a Petition and the Decree Must he Raised in the Court Below.—The question of a variance between the petition fora mechanic’s lien and the decree rendered, if not raised either upon objections before the master, or exceptions before the court below, can not be considered in the Appellate Court.</p>

<p>1. Agents—Of Corporations—When Persons Must Deal with, at Their Peril.—While there is no general rule that requires a person dealing with the agent of a corporation to take notice of what is contained in its by-laws, which are the source of the agent’s authority, yet where the corporation exists only for a special purpose and the agent does not belong to a class usually understood to possess the authority to act in the particular regard that he claims to act in, and the corporation has not held him out as possessing such authority, a party dealing with him must, at his peril, ascertain what the power of the agent is.</p> <p>2. Same—Their Source of Power.—All authority emanates from the principal, and to bind him, the alleged authority of the agent must in some way be traced to him.</p> <p>3. Estoppel—By Whom the Doctrine Can Not be Invoked.—A party to a conspiracy to practice a fraud on another is not in a position to invoke the doctrine of estoppel against the person upon whom the fraud is practiced.</p> <p>4. Same—Fraudulent Leases.—A person is not to be estopped from setting up the invalidity of a lease fraudulently obtained, because he accepted rent under it, if he did so without knowledge of the fraud.</p>

Trespass on the Case, for personal injuries. 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>1, Equity Practice—Exceptions to Master’s Report.—An exception to a master’s report should specifically point out, by reference, the par-evidence relied upon to support it. The court can not be called upon to search through a mass of proofs to find evidence to sustain exceptions to a master’s report.</p> <p>2. Master’s Report—Presumptions in Favor.—Every presumption which exists in favor of the verdict of a jury is in favor of a master’s report upon the facts.</p>

<p>1. Res Gestee—Conversation Between Payee and Banlc, When Admissible.—Where the payee of a check presented the same to the bank for payment and payment was refused, in a suit between him and the drawer, after the failure of the bank, the conversation between the ' payee and the person in the bank to whom he presented the check is admissible as res gestee.</p>

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

Assumpsit, for commissions on sale of property. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the March term, 1895.

<p>Bill for Account and Cross-bill.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1. Beneficiary Associations—Members Must Exhaust Remedies Afforded, Before an Appeal to the Courts.—A. person having been expelled from membership in a beneficiary association must exhaust all remedies for his restoration provided for in the charter and by-laws of the order before he can appeal to the courts.</p>

<p>Garnishee Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Samuel P. McConnell, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>Action Originally Commenced in Justice’s Court,—Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1. Questions of Fact—Verdict Decisive.—Where a case is in all its essentials one which depends upon the facte, it is one for the jury to decide.</p>

<p>1. Appeal—Ides from Justice's Dismissal.—Where, .upon the return day of a summons, the plaintiff does not appear, and the justice dismisses the suit at his cost, such dismissal is a judgment from which an appeal will lie.</p> <p>2. Appeal from Justices— When Appellee Bound to Follow up the Suit—Notice.—When a plaintiff omits to appear on the return day of his summons in a justice’s court and the suit is dismissed at his costs, the law imputes to the defendant knowledge that the plaintiff may appeal, and imposes upon him the duty of following up the case if he wishes to defend.</p>

<p>1. Evidence—Architect’s Certificate, Under the Common Counts.— Where a contract has been performed and the only thing remaining is the payment of money, the common counts are a sufficient declaration and under them any legitimate proof (in this case an architect’s certificate) to enable the plaintiff to recover is admissible.</p> <p>2. Short Cause Calendar—Motion to Strike Cause From.—A motion to strike a cause from the short cause calendar after it is called for trial comes too late.</p> <p>3. Practice—Filing an Additional Abstract—Costs.—When an additional abstract filed by the appellee is not necessary, a motion by him to tax the costs of printing the same against the appellant will be denied.</p>

<p>1. Corporations—Power of President to Confess Judgment.—The president of a corporation has no authority to execute a power of attorney authorizing the confession of a judgment against it, but where suit is regularly brought against the corporation and service duly had upon it, if the claim is just and the corporation has no defense, it is not the duty of the president to deny its justness or to defend the same.</p> <p>2. Same—Power of President to Employ Counsel.—When a corporation is sued, the president has power to employ an attorney to look after its interests in the suit.</p> <p>3. Practice—Cognovit Actionem.—The proceeding known as a cognovit actionem (he has confessed the action), was a practice known at the common law and not necessary to be authorized by statute.</p> <p>4. Judgments—Motions to Vacate—Merits Must be Shown.—Upon application to set aside a judgment, the court acts upon equitable grounds; merits must be shown.</p> <p>5. Jurisdiction—By General Entry of Appearance.—When a party appears in a cause and makes motions without limiting his appearance, the court has jurisdiction of the party for all purposes of the suit.</p>

<p>1. Bill fob Injunction -ToRestrain the Collection of a Judgment— Offset of Cross-demand.—In a bill for an injunction to restrain the collection of a judgment, so as to allow the judgment debtor to set of&a cross-demand, the complainant should state a case, which, if true, rebuts all inferences against him.</p> <p>2. Injunction— Without Notice.—A mere statement of a conclusion in an affidavit is not sufficient to make it appear that the complainant will be unduly prejudiced if the injunction is not issued without notice. It is the court, judge or master, to whom that conclusion is to appear, and the facts from which it is to be drawn should be stated.</p> <p>3. Same—To Enjoin the Collection of a Judgment—Bond.—Under the statute, before an injunction can be issued to enjoin the collection of a judgment, a bond must be given to pay the judgment if the injunction is dissolved.</p>

<p>Mandamus.—Original suit in this court. Demurrer to petition. Heard at the March term, 1895.</p>

<p>1. Practice—Exception to Master's Report.—Exceptions to a master’s report should point out specifically the evidence relied upon to sustain the exception. The court is under no obligation to search through the evidence for something to sustain the. exception. Such a course renders the report of the master of no assistance, and is a practice not to be tolerated. .</p> <p>2. Appellate Court Practice—Improper Abstracts.—It is not only improper in an abstract to characterize written documents as “pretended,” but it is improper to place therein conclusions as to what the evidence amounts to.</p> <p>3. Foreclosure—What May be Included in the Decree.—Amounts which become due pending a hearing, may on foreclosure he properly included in the decree.</p> <p>4. Decrees— Upon Joint and Several Obligations.—Where the bonds signed by a defendant (a married woman), in a foreclosure suit by a building and loan association, are joint and several, and the stock pledged issued, and so far as appears, owned by such defendant, a several decree against such defendant is proper.</p> <p>5. Evidence—Of the Execution of Bonds Described in a Mortgage.— Where the execution of a mortgage is duly proven, and the bonds offered correspond with those described in the mortgage, it is prima facie evidence that they are the same as those described in the mortgage as executed by the mortgagor.</p>

<p>1. Appellate Couet—Jurisdiction.—The Appellate Court has jurisdiction of appeals from the County Court in cases arising under the act concerning assignments for the benefit of creditors.</p> <p>2. Assignment foe the Benefit of Creditors—Form Immaterial.— The mere form of an assignment is immaterial, provided the operation of it is to create a trust in the property conveyed for the benefit of creditors.</p> <p>3. Pabol Evidence—Not Competent to Attach a Trust to Property, etc.—Parol evidence is incompetent to attach a trust to property when the matter at issue is whether there has been made an assignment for the benefit of creditors, to be administered under the statute and the direction of the County Court.</p>

<p>i. Appellate Court Practice—Partial Records.—The court will not reverse a judgment upon a partial record of the court which rendered it.</p> <p>3. Practice—Exceptions to a Master’s Report.—Exceptions to a master’s report is proper only where he has come to a wrong conclusion; for any neglect to comply with the order of reference, a special application to the court for an order to have the defect repaired is the proper proceeding.</p>

<p>1. Alteration op Instruments—Materiality of.—The effect of the alteration of a written instrument depends upon the nature of the alteration, the person by whom, and the intention with which it was made.</p> <p>2. SAME—Explanations, etc.—In explanation of erasures and alterai508l^ons ano*e secured by a trust deed, it is competent to refer to the conditions of the deed, the handwriting of, and ink with which the note and alteration are written, to show that such erasures and alterations were made before execution of the note.</p> <p>3. Appellate Court Practice—Waiver of Assignments of Error.— Where an assignment of an error is made but no mention of the same is made in the brief of the party assigning the same, it will be regarded as waived.</p> <p>4. Solicitor’s Fees—Foreclosure of Trust Deeds. —Under a trust deed which provides that in case of default the trustee may, in his own name or otherwise, “ file a bill or bills in any court having jurisdiction thereof against the said party of the first part, their heirs, executors, administrators and assigns, to obtain a decree for the sale and conveyance of the whole or any part of said premises for the purposes herein specified, by said party of the second part, as such trustee, or as special commissioner or otherwise under order of court, and out of the proceeds of any such sale to first pay the costs of such suit, all costs of advertising, sale and conveyance, including the reasonable fees and commissions of said party of the second part, or person who may be appointed to execute the trust, and five per cent on the amount of such principal, interest and costs for attorney’s and solicitor’s fees,” it is the duty of the court to decree an attorney fee. Five per cent held not excessive.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Superior Court of Cook County; the Hon. Nathai ieu C. Sears, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>1. Equity Pbactice—Exceptions to the Master's Report— General exceptions to a master’s report, as for instance, “such finding is not sustained by the evidence,” or “ such finding is contrary to law,” are improper; the court may refuse to examine the record for matters not specifically pointed out.</p> <p>2. Same—Nature of Exceptions to the Master’s Report-.—Exceptions to a master’s report are in the nature of a special demurrer, and the party excepting must point out the error, otherwise the part not excepted to will be taken as admitted.</p> <p>3. Mechanic’s Liens—Allegations of Ownership in the Petition.—An allegation of ownership of premises in a particular person or corporation, or in a particular person in trust for a corporation or for individuals composing a partnership firm, is a sufficient allegation of ownership in a petition for a mechanic’s lien under the statute, and an allegation that the contract was made, with either the holder of the legal title or the owner of the equitable estate, as the case may be, is enough, with reference to the party contracted with.</p> <p>4. Same—Different Claimants—Consolidation of Suits—Validity of the Decree.—Where there are suits pending for liens upon the same premises by different persons, the proper course of practice is to consolidate them in order that there may be but one decree and one sale; and it is not at all essential to the integrity of the decree that the different claimants should state the ownership of the premises to be the same, or that they contracted with the same persons as, or as claiming to be, owners of the premises.</p> <p>5. Same— What is Liable.—It is the interest which theperson contracted with has in the premises that is liable to tire lien, and maybe sold to satisfy it. The proof determines what that is, and it may not be the same to each claimant.</p> <p>6. Same—Purchasers Without Notice.—The lien given by the statute to mechanics and material-men is a secret one, but is enforcible; persons purchasing the premises must do so at their peril.</p>

<p>1. Master and Servant—Servant—Duty to Obey, etc.—A servant is bound to obey all reasonable orders of the master, and what orders are reasonable, is, in most cases, a question of fact for the jury, subject to review by the court on motion for a new trial.</p> <p>3. Contracts—Construction of .—In construing a contract, the court will read it in the light of the circumstances under which it was made.</p>

<p>Confirmation of a Master’s Sale.—Appeal from the Superior Court of Cook County; the Hon. W. G. Ewing, Judge, presiding. Heard in this court at the March term, 1895.</p>

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

Assumpsit, for money had and received. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the March term, 1895.

<p>1. Bill of Ladino—Form and Effect of.—A transportation company which issues its bill of lading for property which it has received for transportation, is bound to the holder of the bill, who has advanced money upon it, to deliver the goods according to the terms of the bill.</p> <p>2. Same—Terms Can Not be Disputed.—A transportation company is in general not permitted to show that the statement of a reception of goods in a bill of lading is not true, but may be allowed to do so in cases where the agent of the company giving the bill has done so fraudulently or under a mistake of facts.</p> <p>3. Same—Stoppage in Transit.—For many purposes, when a bill of lading is issued, the title to the consignment vests in the consignee; but not so absolutely that he has, as against everybody, a right to retain the property without further action on his part. If the consignee becomes insolvent and the vendor is unpaid, he has a right of stoppage in transitu and such right is not lost by his having received conditional payment by bills of exchange, even though he may have negotiated them, provided they are Outstanding in the hands of third parties unmatured.</p> <p>4. Stoppage in Transitu— When the Bight Ceases.—A vendor of goods, not having received payment for the same, is entitled to have them stopped while in transit to the vendee, and this right may be exercised at any time until the transit is at an end.</p> <p>5. Same—When the Transit Ends.—The question in determining whether the transit is ended is, in what capacity is the property held by him who has the custody. If he is the vendee’s agent to forward them to the intended destination at the time they are put in transit, the transit is at an end; but it is otherwise when they are in his possession for another purpose.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the March term, 1895.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1895.

<p>1. County Courts—Administration of Insolvent Estates.—The County Court has ample power to set aside anything done by it during the term.</p> <p>8. Sureties—Devastavit Against Principal Unnecessary.—The rule of the common law, that a devastavit must first be established against the principal before an action would lie against the surety, has been changed by statute as to official bonds, bonds of executors, administrators, guardian, conservators and assignees of insolvent debtors.</p>

<p>1. Streets—Of Cities, Held in Trust.—A city holds the streets in trust for the use of the public in such manner, as public streets, as the necessities of the public may require. It has no authority to convert or divert them to other uses.</p> <p>2. Same—What is a Perversion of the Trust.—The city of Chicago holds the streets in trust for the use of the public in such ways and manner as the public interests may demand, and it is a perversion of such trust to grant to particular persons a right to erect permanent structures upon them for private use.</p> <p>3. Same—An Exception to the Rule.—Temporarily, that is, for such time and in such way as not to interfere with their use as streets by the public, a city may license individuals to use, for private purposes, portions of the streets, but it has no power to either sell or give away the streets for private use.</p> <p>4. Same—Pwrprestures and Permanent Encroachments.—A purpresture or permanent encroachment by an adjoining owner upon a street is a nuisance.</p> <p>5. Same—Special P&'mission to Erect an Atoning.—-An order of a city council giving special permission to an adjoining owner to erect an awning in front of his premises, is not of a general nature, but special and peculiar, applying to one place and one person, and for this reason amounts to no more than a license without consideration, and subject to revocation at pleasure.</p> <p>6. Ordinances--Of Cities, Must be Uniform.-—City ordinances must be uniform and of general operation within the city limits, so that the burdens and benefits may, as far as practicable, rest equally upon all; any unnecessary discrimination between persons or locations will, invalidate them.</p> <p>7. License—To Erect Structures in Streets, Revocable.—The fact that at the time permission is given to erect upon a public street a permanent structure, its erection would not inconvenience the public, and that the person constructing it has expended a large sum of money in so doing, does not give him a right to maintain the same when the public authorities demand its removal, or to have the question as to whether it is an inconvenience to the public, heard by either a court of equity or law. Its removal being demanded, it may be treated as a nuisance.</p>

<p>Assumpsit.—Breach of contract. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the March term, 1895.</p>

<p>Assumpsit.—Payee v. Guarantor, etc. 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 money paid out, etc. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1895.

<p>1. iNsmtAUCE—What ís Nota Defense.—The object of insurance is indemnity against losses which, in fact, are usually the result of a want of care by the insured. Mere negligence not of a character to indicate fraud, is no defense.</p>

<p>1. Appellate Court Practice—Time for Filing Records. —Under the statute providing that where ten, but not twenty, days intervene between the last day of the term of the court ¡from which the appeal is taken and the first day of the term of this court, the record shall be filed on or before the tenth day of the term; when the term begins on the 5th day of the month, a record filed on the 15th is not in time.</p>

<p>Petition for a Writ of Prohibition.—Original suit in this court. Presented at the March term, 1895.</p>

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

<p>1. Mandamus—Jurisdiction of Appellate Court.—A petition for a mandamus not in aid of any suit pending in this court, must be dismissed.</p>

<p>1. Interpleader—Where Not Permissible.—There is no interpleader between landlord and tenant, or where the relation of principal and agent exists.</p> <p>2. Practice—On Appeals from Orders Granting Injunctions.— Upon an appeal from an order granting an injunction, where there is no foundation for the bill, and the same is not amendable, the order will be reversed with directions to the court below to dismiss the bill.</p>

<p>1. Insurance—Construction of Policy.—Insurance policies are to be liberally construed in favor of the insured so as not to defeat, without a plain necessity, the claim to. the indemnity which, in making the insurance, it was the object to secure. When words, are, without violence, susceptible of two interpretation's, that which will sustain the claim and cover the loss, must, in preference, be adopted.</p> <p>2. Accident Insurance—Death by Poison.—A death occasioned by the accidental swallowing of an overdose or excessive quantity of a poison is a death caused by external and violent means.</p> <p>8. Taking Poison— Ordinary Meaning of the Term.—The words “ the taking of poison” are ordinarily used to mean taking by swallowing, and the court is unable, in reference to such manner of taking, to perceive that any additional force or meaning is imparted to a certificate of insurance against accidents, by adding to the clause “ by the taking of poison” the words “in any way or manner.”</p> <p>4. Proof of Loss—Waiver.—Where an insurance company denies all liability under its policy, the making of proofs of death are waived.</p> <p>5. Limitations—By Stipulations in Policies.—Where a beneficiary, under a policy of insurance, is informed that the company would not recognize the claim, such beneficiary, under a by-law of the company providing—“No suit shall be commenced or maintained against the association unless the same shall be commenced within thirty days from and after the date of the refusal of the association to entertain a claim or pay an award. The failure of the association to pay a claim within sixty days from the date of filing with the association of proofs thereof shall be construed by the member as a refusal on the part of the association to pay said claim, and no suit or proceeding at law shall be brought by said member, his heirs, executors, administrators or assigns, unless the same shall be commenced within thirty days from the expiration of the said sixty days hereinbefore mentioned ”—would have a right to wait until the expiration of sixty days from the death of the insured before taking notice that the claim would not be voluntarily paid, and may, upon such expiration, sue at once.</p> <p>6. Practice—Where the Recovery Exceeds the Ad Damnum.—Where the finding and judgment exceed the ad damnum, and the fact is not pointed óut and excepted to in the court below, it can not be raised on appeal.</p>

<p>1. Agent—Not to Acquire Title as Against His Principal.—Where, by an agreement between, a vendor and vendee of a race-horse, proceedings by attachment and a sale of the horse thereunder were had for the avowed purpose of getting a better title, a person who is assisting the vendee in the matter by bidding in the horse at the sale for the vendee, gets no title by afterward paying the amount of the bid, which he can assert against the vendee in an action of replevin.</p>

<p>1. Insurance—Death of Insured—Effect on the Policy. —Where there is nothing in the terms of a policy, or in the statute or by-laws governing the company, which continues the policy to the heirs after the death of the insured, a suit for a loss occurring after such death can not be sustained.</p> <p>3. Same—County Eire Insurance—Death of Member—Insurance Ceases.—Upon the death of a member of a company, organized under the county fire insurance act, there is no liability of assessment for losses occurring thereafter, and the insurance ceases.</p> <p>3. Same—Contract Personal—Ends in the Death of the Insured.— A contract of insurance between the insurer and the insured is personal for his benefit, for losses which he may sustain while he owns the property insured, and not for losses sustained by his heirs after its transfer to them by operation of law, occasioned by the death of the insured.</p> <p>4. Same— Conditions Precedent to Bringing Suit.—The statute providing that in case of a loss the insured may have the damages assessed by the award of a committee appointed by the county judge, is not mandatory.</p>

* Assumpsit, on contract of subscription to capital stock. Appeal from the Circuit Court of Fayette County; the Hon. Jacob Fouke, Judge, presiding. Heard in this court at the February term, 1895.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Jefferson County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the February term, 1895.

<p>Assumpsit, on a breach of contract. Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding. Heard in this court at the February term, 1895.</p>

<p>1. Appellate Court — Practice — Questions upon Instructions — Sufficiency of the Abstract.—Where the question of law to be presented is, whether the court erred in refusing to give an instruction, and no instructions appear in the abstract, the Appellate Court will decline to search the record for them.</p>

Trespass, for taking personal property. Appeal from the Circuit Court of Richland County; the Hon. Silas Z. Landis, Judge, presiding. Heard in this court at the February term, 1895.

<p>Assumpsit, goods sold. Appeal from the Circuit Court of Wabash County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the February term, 1895.</p>

<p>1. Imputable Negligence— Where It Does Not Apply.—The negligence of the driver of a vehicle over a dangerous road can not be imputed to a person riding with him by invitation and ignorant of the surrounding circumstances.</p>

Trespass on the Case, 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 February term, 1895.

<p>Trespass on the Case.—Death from negligence. Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding. Heard in this court at the February term, 1895.</p>

<p>1. Witnesses—Competency of a Wife.—In an action upon a joint promissory note, made by a husband and his wife, to which the wife is made a party defendant, she is a competent witness in her own behalf.</p>

<p>Divorce.—Appeal from the Circuit Court of Perry County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1895.</p>

<p>Mechanic’s Lien.—Appeal from the Circuit Court of Effingham County; the Hon. Silas Z. Landis, Judge, presiding. Heard in this court at the February term, 1895.</p>

<p>Assumpsit, for services rendered. Appeal from the Circuit Court of Clinton County; the Hon. Alonzo S. Wilderhan, Judge, presiding. Heard in this court at the February term, 1895.</p>

Bill for Injunction, to restrain the breach of a covenant. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1895.

Assumpsit.—Promissory note; indorsee against maker. Appeal from the County Court of Wayne County; the Hon. John L. Cooper, Judge, presiding. Heard in this court at the February term, 1895.

<p>Transcript from a Justice of the Peace.—Appeal from the Circuit Court of Jasper County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the February term, 1895.</p>

Assumpsit.—Breach of an undertaking to collect checks. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Bub-roughs, Judge, presiding. Heard in this court at the February term, 1895.

<p>Debt, on a judgment. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1895.</p>

Assumpsit, for royalties under a mining lease. Appeal from the Circuit Court of Madison County; the Hon. Alonzo S. Wildeeman, Judge, presiding. Heard in this court at the February term, 1895.

<p>1. Broker—Who is Not.—A person employed by a life insurance company to canvass a city and solicit applications for insurance, collect premiums, representing bis company alone and working for no other in any capacity, his pay measured by his success in securing applications and paid by the company weekly, all applications taken by him being presented to the superintendent of the company, who approved and issued policies upon them or rejected them, is not a broker, within the meaning Of paragraph 91 of section 1, article 5 of chapter 34, R. S., entitled “Cities and Villages,” authorizing cities and villages to tax, license and regulate brokers.</p> <p>3. Insurance Broker—Who is and Who is Not.—An insurance broker is a middle man between the insurer and the insured, and for some purposes is treated as the agent of both. • He is ordinarily employed by the insured and is distinguished from the insurance agent who solicits insurance under employment by an insurance company.</p>

<p>Trespass on the Case.—Killing domestic animals. Appeal from the Circuit Court of Richland County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the February term, 1895.</p>

<p>Trespass on the Case,—Damages in grading streets. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1895.</p>

<p>1. Insurance—Change of Title.—Where a clause in apolicy of insurance provided that in case any change should take place in the title or possession of the property insured without the consent of the insurer, the policy should be null and void, and such a change by warranty deed from the insured being shown to establish a defense to an action on the policy, it is competent for the plaintiff to show by parol evidence that notwithstanding such conveyance, the insured in fact remained the owner and in possession of the property, no change of title being effected; and thus show that no increased hazard had been imposed upon the company, and the purpose of the condition not defeated.</p> <p>2. Same—Conditions of Policy—What is a Change of Title.—The object of the condition in a policy of insurance, rendering it void if any change in the title of the insured property shall take place, is that the interest shall not change, so that the insured shall have a greater temptation or motive to burn the property, or less interest and watchfulness in guarding and protecting it from destruction by fire. Any change of title in or transfer of interest in the property of a nature calculated to have this effect, is a violation of the policy; but if the real ownership remains the same, if there is no change of the fact of a title but only in the evidence of it, the change being merely nominal, and not of a nature calculated to increase the motive to bum or not guard the property from fire, the policy is not violated.</p> <p>3. Same—Waiver of Notice in Writing.—Where the insured orally notified the agent who issued the policy, of a loss, and he did not object to the notice at the time, it was held that the right to a notice in writing as required by the policy was waived.</p>

Trespass on the Case, for personal injuries.—Appeal from the Circuit Court of Clay County; the Hon. Edmond D. Youngblood, Judge, presiding. Heard in this court at the February term, 1895.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1895.

<p>Administration of Estates.—Exceptions to an administrator’s report. Appeal from the Circuit Court of Perry County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1895.</p>

<p>1. Obstruction of Watercourse—By Railroads.?-Where a structure is imperfectly and improperly built, so as to prevent the free passage of the water and damage to a dominant heritage results, a judgment for the damage caused by the creation of the nuisance will not be a bar to any subsequent action for damages caused by its continuance in bad condition.</p> <p>2. Nuisances—Continuing—Recoveries.—The continuance of that which was originally a nuisance is regarded as a new nuisance, and although a recovery may be barred upon the original cause, an action on the case may be brought at any time before it is barred, to recover such damages as have accrued by reason of its continuance within the statutory period.</p> <p>3. Instructions—Invading the Province of the Jury.—An instruction which invades the province of the jury is properly refused.</p>

<p>Assumpsit, on a policy of life insurance. Appeal from the Circuit Court of Massac County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1895.</p>

Trespass on the Case, 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 February term, 1895.

<p>1. Evidence—Hearsay—When Proper.—Where hearsay evidence is introduced by the defendant (the same being statements made by an employe), he can not be heard to object to the proof on rebuttal, of other statements by the same employe, made soon afterward, and contradictory of the statement in evidence in his behalf.</p> <p>2. Practice—Objection to Evidence on Rebuttal.—An objection to the admission of evidence on the ground that it is improper in rebuttal is an implied acknowledgment that it is proper in chief.</p>

<p>1. Highway—Proceedings to Lay Out.—The filing of a certificate with a justice of the peace by the supervisors within ten days after granting the prayer of a petition for a road, in order to proceed with the assessment of damages, is a condition precedent to the taking of the land. A failure to file such certificate within the time required, divests the supervisors of their jurisdiction, and the justice can not be compelled to proceed.</p> <p>2. Same—Proceedings before the Supervisors.—Proceedings inlaying Out a highway, before the supervisors, on appeal from the commissioners, with reference to the assessment of damages, are governed by the same law applicable to the action of the commissioners.</p> <p>3. Same—Where the Supervisors Have Lost Jurisdiction.—In a case where the supervisors have lost jurisdiction, and their proceedings would be quashed on certiorari, a court will not, by mandamus, compel a justice to proceed with the assessment of damages.</p> <p>4. Mandamus—When the Writ Will Not be Awarded.—A writ of mandamus will not be awarded for the performance of an act which, for any reason, has become unlawful to be performed.</p> <p>5. Same—Requisites of the Petition.—To entitle a relator to the writ of mandamus it must appear that the defendant is under a legal obligation to perform the act required of him, and every material fact necessary to show such legal duty must be averred in the petition for the writ.</p>

<p>1. Insurance—By Parol Contracts.—Agents may make parol contracts of insurance which will be binding upon their companies.</p>

<p>Debt, upon a replevin bond. Error to the Circuit Court of Effingham County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the February term, 1895.</p>

<p>1. Chattel Mortgages—Acknowledgment Void, as to Third, Persons. —A chattel mortgage not shown to have been acknowledged before a justice of the peace of the town or precinct where the mortgagor resided at the time óf its execution, is void as to other incumbrancers or creditors of the mortgagor.</p> <p>2. Same—Acknowledgment in a Foreign State.—The acknowledgment of a chattel mortgage in the State of Missouri gives it no validity in this State, where the laws of Missouri relating to chattel mortgages and the acknowledgments thereof, are not in evidence.</p> <p>3. Same—Oral Evidence to Show Residence of Justice Taking an Acknowledgment.—In an action of replevin, where a party claims title to the property under a chattel mortgage, it is competent to show, by oral proofs, that the justice before whom the acknowledgment of the mortgage was taken, was a justice of the peace of the town where the mortgagors resided at the time of its execution,</p> <p>4. Replevin—Title Under Chattel Mortgage—Production of Notes. —Where, in an action of replevin, the plaintiff claims title by virtue of a chattel mortgage given to secure an indebtedness evidenced by promissory notes, it is incumbent upon him to produce such notes or account for their absence.</p> <p>5. Fraud—Division of Mortgage Indebtedness Not Fraudulent Per Se.—The fact that an indebtedness secured by a chattel mortgage is divided into two notes, one for a large sum, due in two months, and the other for a small sum, due in two years, is not of itself evidence of a fraud which will vitiate the mortgage.</p> <p>6. Possession—Under Chattel Mortgage Notes Due at Different Times.—Where the notes secured by a chattel mortgage mature at different times, the mortgagee is not required to take possession of the property on default of payment of the note first due. The mortgage remains valid for two years from the time it was filed for record.</p>

<p>Administration of Estates.—Error to the Circuit Court of Jackson County; the Hon. Joseph P. Eobaets, Judge, presiding. Heard in this court at the February term, 1895.</p>

Trespass on the Case.—Death from negligence, etc. Appeal from the Circuit Court of Crawford County; the Hon. Edmund D. Young-blood, Judge, presiding. Heard in this court at the February term, 1895.

<p>1. Jurisdiction—Entry of an Unlimited Appearance.—"Where the defendants, by amotion made by them, enter their unlimited appearance in a judicial proceeding, the court' will acquire jurisdiction of their persons for all purposes of the suit.</p> <p>2. Solicitor’s Fees—In Foreclosure Suits.—Where a mortgage contains a provision for the recovery of solicitor’s fees in case of a foreclosure, it is proper, under suitable pleading, to include such fees in the decree.</p> <p>3. Same—Exceptions to the Master’s Report.—Where no exceptions are taken to the master’s report on the allowance of solicitor’s fees, the question can not be raised on appeal.</p>

Trespass on the Case.—Death from negligence, etc. Appeal from the City Court of East St. Louis; the Hon. B. H. Caney, Judge, presiding. Heard in this court at the Februaay term, 1895.

Complaint, for selling cigars from a box having upon it a counterfeit label. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderhan, Judge, presiding. Heard in this court at the February term, 1895.