Volume 60 — Illinois Appellate Court Reports

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

Assumpsit, for unpaid installments on a contract for the sale of land. Error to the Circuit Court of Jackson County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the February term, 1895.

<p>Trespass to Real Estate.—Appeal from the Circuit Court of Schuyler County; the Hon. Charles J. Scofield, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>Trespass, for cutting timber. Appeal from the Circuit Court of Calhoun County; the Hon. George W. Herdman, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>1. Trespass to Real Estate—Possession Not Sufficient to Maintain the Action.—Á possession of land claimed to be adverse, but shown by the evidence not to be continuous, the lands being vacant and unoccupied for any purpose, is not sufficient to support an action of trespass.</p>

<p>Assumpsit, on an account stated. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>1. Insurance—Conditions of the Policy—Promissory Warranties.— A stipulation in an insurance policy that the assured shall take an inventory at least once a year, and shall keep books of account, correctly detailing purchases and sales of stock, and that a failure to observe such conditions shall work a forfeiture of all claims under the policy, is an express promissory warranty, and the validity of the contract of indemnity depends upon its fulfillment by the assured.</p>

<p>1. Insurance—Conditions of the Policy.—This case follows the decision in the case of the Farmers’ Fire Insurance Company v. Bates & Co., appellees, ante.</p>

<p>1. Chattel Mortgages—.First and Second Mortgagees—Priorities. — Of two mortgagees, where the first fails to take possession of the property upon the maturity of his debt within a reasonable time, the second may do so and by so doing obtain a priority over the first mortgagee.</p>

<p>1. Dower—Setting Aside a Given Sum in Lieu Thereof.—Where a widow consents to a decree by which a fund equal to one-third of the estate is set aside for her use as dowress, she must treat the fund as she would treat so much of the real estate itself had it been set apart for her use. If altered conditions have compelled a reduction of interest, it is her misfortune, but she can not encroach upon the principal.</p>

<p>Trespass on the Case.—Overflow of water. Appeal from the Circuit Court of Moultrie County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>Debt, on an appeal bond. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>1. Nuncupative Wills—No Particular Form of Words Necessary.— Any words which express a clear intention to bequeath the estate to a certain person will be sufficient to pass the property. It is not necessary that the word “ will” be used.</p> <p>2. Same—What is a Sufficient Attestation.—It is not necessary for the testator to formally require any one to witness or attest a nuncupative will. So where, after the testator had fully stated the disposition to be made of her property, she raised her hands, addressed generally those about her and said, “You all know now what I want done; that is all I have got to say,” it was held that the expression was in effect a calling upon those present to remember and bear witness to the disposition she was making of her effects, and a sufficient attestation of the wilL</p> <p>3. Trials by the Court—Admission of Incompetent Testimony.— Where a trial is before the court without a jury, the presumption is that all incompetent testimony was rejected from the final consideration, and the inquiry on appeal is, was there sufficient competent testimony to support the judgment appealed from.</p>

<p>Trespass, for taking coals. Appeal from the Circuit Court of Calhoun County; the Hon. George W. Herdman, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>Trespass on the Case, under the Civil Rights Act. Appeal from the Circuit Court of McLean County; the Hon Thomas F. Tipton, Judge, presiding. Heard in this court at the November term, 1894.</p>

Summary Proceedings.—Motion for a rule on the sheriff to pay over to Bessie Sohoenfield the sum of $1,000, alleged homestead money. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the November term, 1894.

<p>Transcript from a Justice of the Peace.—Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>Bill in Chancery, to establish a lien. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>1. Replevin—Remedy of the Officer Serving the Writ.—Where a plaintiff in replevin, being defeated in the action, fails to make a return of the property as awarded, and the officer who served the writ is sued, charged with having taken an insufficient bond, the obligors in the bond are bound to answer to the officer for any damage sustained by him in executing the writ, and when sued he may call upon them as his indemnitors, to defend the suit, and thus bind them by the result.</p> <p>2. Same—Strife1 upon the Bond—Notice to Obligors to Defend.—Where the obligors in a replevin are notified of a suit thereon against the officer replevying the property, and appear and make an unsuccessful defense, so. far as the parties to the suit are concerned, the question of the sufficiency of the bond under the statute is conclusively determined. But if it was not, and the property was not returned as awarded, the officer would be liable, and being so he might sue on the bond, even though it is not good as a replevin bond under the statute.</p>

<p>Bill in Chancery, to set aside a conveyance. Error to the Circuit Court of Greene County; the Hon. George W. Herdman, Judge, presiding. Heard in, this court at the November term, 1894.</p>

<p>Transcript from a Justice of the Peace.—Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>Appeal from, the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the November term, 1894.</p>

Trespass on the Case.—Damages resulting from a nuisance. Appeal from the Circuit Court of Greene County; the Hon. George W. Herd-man, Judge, presiding. Heard in this 'court at the November term, 1894,

Debt, to recover a penalty for practicing medicine in violation of law. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the November term, 1894.

Assumpsit, for the amount of a bid at an execution sale. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the November term, 1894.

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Logan County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the November term, 1894.

<p>Action to Recover Money lost at Gambling.—Appeal from the Circuit Court of Brown County; the Hon. Jefferson Ore, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>1. Accident Insurance—Construction of Conditions—Meaning of the Term “Immediately.”—The term “ immediately ” as used in a policy of accident insurance against loss of time resulting from bodily injuries incurred, which, independent of other causes, immediately, wholly and continuously disable the insured from transacting any kind of business pertaining to his occupation', is to be construed in its connection as a word of time, and does not mean within a reasonable time, but presently, without any substantial interval.</p> <p>2. Same—Injuries Not Included in the Policy.—Where a person, insured in an accident company against loss of time resulting from bodily injuries, which, independent of other causes, immediately disable him from transacting any kind of business pertaining to his occupation, was injured in passing through a door and accidentally and violently striking his head against the casing over the doorway, but continued to transact his duties as a salesman for five days before he was wholly disabled, etc., it was held that he could not recover under the conditions of the policy.</p>

Transcript from a Justice of the Peace.—Action for building and repairing railroad fences. Appeal from the Circuit Court of Edgar County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1894.

Trespass on the Case, for killing domestic animals. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the November term, 1894.

Transcript from a Justice of the Peace.—Action for killing a domestic animal. Appeal from the Circuit Court of Cumberland County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the November term, 1894.

Assumpsit, for goods sold, etc. Appeal from the Circuit Court of Pike County; the Hon. Jefferson Ore, Judge, presiding. Heard in this court at the November term, 1894.

<p>Bastardy.—Appeal from the Circuit Court of Cass County; the Hon. Lyman Lacey, Judge, presiding. Heard in this court at the November term, 1894.</p>

Trespass on the Case, for a failure to transmit correctly a telegraph message. Appeal from the Circuit Court of Edgar County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1894.

<p>1. Waiver—Defects in Service—Taking an Appeal.—A defect in the service of a summons in an action before a justice of the peace is waived by taking an appeal.</p> <p>2. Practice— Objections Must be Made in the Court Below.—An objection that the complaint in an action of forcible detainer before a justice of the peace is not sufficient, should be made before going to trial. It can not be made for the first time in the Appellate Court.</p> <p>3. Same—Informal Complaints.—A defective complaint in forcible detainer, which is merely informal, is sufficient if no objection is made at the proper time in the court below.</p> <p>4. Demand—When Unnecessary in Forcible Detainer.—Where a tenant holds over after the termination of a lease for a definite period, under the statute no demand is necessary to terminate the tenancy.</p>

Indictment.—Selling, etc., to a minor child, papers devoted to illustrating and describing criminal- deeds. Error to the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1894.

<p>Transcript from, a Justice of the Peace.—Error to the Circuit Court of Pike County; the Hon. Jefferson Orb., Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>1. Infants—Warrants of Attorney to Conf ess Judgment.—A minor can not execute a valid warrant to confess a judgment, and a judgment confessed upon such a warrant is void.</p> <p>2. Jurisdiction—Not Conferred by a Minor's Warrant of Attorney. —Jurisdiction can not be conferred upon a court by a warrant of attorney executed by a minor, authorizing the entry of his appearance and confession of judgment.</p> <p>8. Necessaries—What is Not.—A horse purchased by a minor and for which he gives his note, can not be regarded as necessaries, and he is not legally bound to pay for the same.</p> <p>4. Repudiation— Of His Contract by Minor.—A note given by a minor for articles not necessaries is voidable and may be repudiated by him, but if he has in his possession or control the articles for which such note was given, he may be required to restore them as a condition precedent to such repudiation; the rule is different, however, where he has parted with such possession and the articles are no longer under his control.</p> <p>5. Void and Voidable—Contraéis by Minors.—When a minor purchases a horse (not being included within the term, ‘ necessaries’), and gives his note and warrant of attorney attached thereto, to confess judgment (judgment note), the note is voidable, but the warrant of attorney to confess the judgment is absolutely void.</p>

<p>Assumpsit.— Common counts. Error to the Circuit Court of Mc-Donough County; the Hon. Charles J. Scofield, Judge, presiding. Heard in this court at the November term, 1894.</p>

Transcript from a Justice of the Peace.—Action for repairing a fence under the statute. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the November term, 1894.

<p>1. Sales—When a Contract is a Sale.—If a contract is intended by the parties to it to result in transferring for a price from one of the parties (the vendor) to the other (the vendee), a chattel in which the vendee has no previous property, it is a contract for the sale of the chattel.</p> <p>2. Same— When a Contract is Not a Sale.—Where a person makes a contract with a carriage maker for the making of a peculiar style of carriage not generally manufactured for his trade, or kept in stock, and it is ordered in view of the reputation and skill of the maker, such contract is not one of hiring and service, but is a contract of sale.</p>

<p>Replevin.—Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Cass County; the Hon. Lyman Lacey, Judge, presiding. Heard in this court at the November term, 1894.</p>

<p>Appeal from the Circuit Court of Coles County; the Hon. Ferdinand Booicwalter, Judge, presiding. Heard in this' court at the May term, 1895.</p>

Assumpsit, for money had and received. Appeal from the Circuit Court of Adams County; the Hon. Oscar P. Bonnet, Judge, presiding. Heard in this court at the November term, 1894.

<p>1. Freehold—When Involved.—A freehold is involved in a proceeding to enjoin a village from opening a street, on the ground that it bad not been legally platted or dedicated.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Adams County; the Hon. Oscar P. Bonney, Judge, presiding. Heard in this court at the November term, 1894.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the May term, 1895.

<p>1. Decebes—To be Sustained by the Record.—A. decree in chancery-can only be sustained in cases where the bill is not taken for confessed, where the record shows facts proved sufficient to support it either by evidence preserved or by a master’s report or recital in such decree of facts proved on the hearing.</p> <p>2. Same—In Divorce Cases—Exceptions.—Where the parties to a suit for divorce submitted the trial of the issues made by the bill and answer to the court, and the court, after hearing the evidence, found “the issues for the complainant from the evidence,” and so entered the fact in the decree, it was held that such a finding, without any other finding of facts or evidence preserved in the record, was sufficient.</p>

<p>Foreclosure of Mortgage.—Error to the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the May term, 1895.</p>

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

<p>1. State Board op Health—Compulsory Vaccination.—Section 3, of chapter 123, R. S., providing that the State Board of Health shall have the general supervision of the interests of the health and life of the citizens, and authority to make such rules and regulations and sanitary investigations as it may from time to time deem necessary for the preservation of the public health, confers upon such board no authority to make an order requiring the pupils in the public schools throughout the State to be vaccinated or be denied admission thereto for a failure to comply with such order.</p> <p>2. Vaccination—Not a Necessary Qualification for Admission to the Public Schools.—The vaccination of a pupil is not one of the qualifications necessary to his admission to the public schools as a scholar, and such pupil can not be excluded from school privileges for failing to obey a rule requiring vaccination, in the absence of an immediate, present necessity, occasioned by a reasonable, well-founded belief and apprehension entertained by the public authorities that small-pox is prevalent in the community in which the school is located or is approaching the vicinity.</p> <p>3. School Directors — Reasonable Rules—Vaccination.—Where pupils seeking admission to the public schools are in perfect health, not having been exposed to the small-pox, and such disease is not prevailing in the vicinity of the school, there is no present necessity for the enforcement of a rule requiring the vaccination of pupils as a condition precedent to their enjoyment of school privileges, and a rule requiring such vaccination, under such circumstances, is unreasonable and not within the powers of the directors to enforce.</p>

<p>1. Nominal Damages—Breaches of Bonds—Building Contracts.— Where a building contract stipulated that the contractor should pay all bills for material and labor and the accompanying bond provided that he should well and truly and promptly comply with all the provisions of . the contract, a failure on his part to pay any bill for material or labor will constitute a breach of the bond, but unless it is shown that the owner is liable for the payment of such bill only nominal damages can be recovered.</p>

Assumpsit, on the certificate of a benefit association. Appeal from the City Court of East St. Louis; the Hon, Benjamin H. Canby, Judge, presiding. Heard in this court at the February term, 1895.

<p>1. Insurance-—Waiver of Proof of Loss.—An insurance company may waive imperfections and deficiencies in the statement and proof of loss required by it, and-all objections to such proof of loss not specifically pointed out will be considered as waived.</p> <p>2. Same—When the Insured is Believed from Furnishing Proofs of Loss.—If an insurance company, after notice of loss, refuses to pay, and places its refusal on the distinct ground of some non-liability, other than the failure to furnish sufficient proof of loss, the assured is relieved from the obligation to furnish such proof.</p> <p>3. Same—Agreements Which Do Not Affect the Question of Waiver.— An agreement between the insured and an adjuster of the company, in which it is provided that he shall proceed to adjust the loss, but that nothing which he had said or done, or might say or do, should be held to be a waiver of any of the terms or conditions of policy, does not affect the question of the waiver of proofs of loss, for the reason that the agreement simply provides against a waiver arising from the words or acts of the adjuster.</p> <p>4. Same—Application for—May be Contradicted by Parol.—If an applicant for insurance did not make the representations written in the application by the agent of the company, the falsity of such written statement may be shown by parol.</p> <p>5. Practice—Asserting Different Theories in the Appellate Court.—A party litigant can not make up the issues in a case, permit evidence to be introduced responsive to such issues, and ask instructions upon a certain theory, and then assert for the first time in the Appellate Court that such theory is erroneous.</p> <p>6. Same—Shifting Position in the Appellate Court.—Where a party objects to the introduction of evidence on cross-examination on the express ground that it is incompetent, he will not be permitted in the Appellate Court to shift his position and say that the evidence was not proper as cross-examination.</p> <p>7. Res G-estje—Applications for Insurance.—What takes place at the time of making an application for the insurance in litigation, is proper evidence as a part of the history of the transaction.</p>

Mandamus, to compel a corporation to keep its books in this State. 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>Bill in Chancery, to foreclose a mortgage. 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>

<p>1. Parties—Foreclosure Suits.—All persons having an interest in the premises in suit derived from the grantor in a trust deed, are proper parties to a suit in foreclosure, and this interest, whether an equity of redemption or the right of occupancy, should be foreclosed.</p> <p>2. Foreclosure Suits—Who are not Necessary Parties.—Persons holding title to the premises in suit, adverse and independent, and not derived in any manner from or through the grantor in a trust deed, are not proper parties to a suit to foreclose the trust deed.</p> <p>3. Equity Jurisdiction—Adverse Titles in Suits for Foreclosure.—A court of equity will not assume to determine the validity of an adverse and independent title in a suit for the foreclosure of a trust deed, neither will it assume the existence of such a title without some competent evidence tending to show the fact.</p> <p>4. Adverse Titles—In Foreclosure Suits.—Where a party defendant in a foreclosure suit claims title to the premises adversely to the complainant, the burden of proof is upon him to establish the fact that his claim is under an adverse title, and when this is made to appear, the court will, as to such defendant, proceed no further. Such controversies are to be settled in courts of law.</p>

<p>1. Recoupment—Under the General Issue.—In an action to recover the amount of a note given for the purchase price of a harvesting machine, the defendant may recoup under the general issue, without a special plea, any damages arising from a breach of a warranty of the machine.</p> <p>2. Breach of Warranty—Recoupment—General Issue and, Special Pleas.—Where the general issue and a special plea have been filed and the evidence is variant from the allegations of the special plea, recoupment is permissible, nevertheless, under the general issue in a suit for the price of an article sold, where there is a warranty of the article and the evidence shows a breach of such warranty.</p> <p>3. Instructions—Harmless Error.—The giving of an erroneous instruction which does not prejudice the right of the adverse party, is not reversible error.</p>

<p>Assumpsit. —Breach of warranty. Error to the County Court of White County. The Hon. James C. Pearce, Judge, presiding. Heard in this court at the February term, 1895.</p>

Assumpsit, for a death benefit in a beneficiary association. Error to the City Court of East St. Louis; the Hon. B. H. Oanby, Judge, presiding. Heard in this court at the February term, 1895.

<p>1. Judgments—When to he Reversed.—The verdict of a jury must be palpably unjust, the result o£ passion or prejudice, or manifestly against the weight of the evidence, before an appellate court has the right to reverse a judgment founded upon it on the ground that it is not supported by the evidence, and the same rule applies to the findings of a court when exercising the functions of a jury.</p> <p>2. Broker—When Entitled to Commissions—Sale of a Railroad to a Corporation—Ultra Vires no Defense.—Under a contract between a syndicate, composed of certain individuals, and a broker, to effect a sale of certain street car lines to the Alton Electric Street Railroad Company, the broker is entitled to his commissions upon the consummation of the sale, and it is no defense to a suit against the persons composing the syndicate for such commissions to say that the company might interpose the defense of ultra vires if sued upon the contract.</p> <p>3. Same—Sales—A Corporation Not Lawfully Organized—Defense to a Suit for Commissions.—Where a broker, in pursuance of a contract with a syndicate, made a sale of certain street car lines to the Alton Electric Street Railroad Company, the fact that the company was not duly incorporated is no defense to a suit by the broker for his commissions.</p> <p>4. Evidence—Execution of Contracts hy Corporations.—In order to entitle a contract made by a corporation under its corporate seal to be read in evidence it is sufficient to prove the signatures of the president and secretary, without making proof of the incorporation of the company.</p> <p>5. Same—Of De Facto Corporation.—While a certificate of' the incorporation of a company, as recorded in the recorder’s office of the county, may not be the evidence required to show that such company is a corporation de jure, it tends to show that it is a corporation de facto, and is admissible for that purpose.</p> <p>6. Contracts—What May he Varied hy Parol Evidence.—After a broker had earned his commissions he called upon the person from whom they were due and requested payment. Not having the money he was given the following letter to a banker:</p> <p>“ As per oar talk with Mr. White, I am to pay $3,600 as commission or bonus on street railway deal, of which Mr. White said to us Mr. May-field was to receive §1,300. The only question between us is, when paid. My remembrance is distinct, this was to be paid from proceeds of note 4700. If you can assist Mr. Mayfield in this I shall be glad.” The broker wrote the following indorsement on the letter : “ Know all men by these presents, that I hereby authorize J. E. Hayner, or the cashier of the Alton Savings Bank, to collect the amount of twelve hundred dollars within named from William Eliot Smith, and apply same to the payment of my note of §1,000, dated on this day, at eight months’ time, bearing seven per cent interest, executed by me to the Alton Savings Bank; and such balance as shall be left over to place to the credit of myself at said Alton Savings Bank.” Tins was approved by the person writing the letter, and upon this letter and indorsement as approved the broker borrowed §1,000. It was held that these transactions did not constitute a contract between the parties which could not be explained, varied or contradicted by parol evidence.</p> <p>7. Practice—Withdrawing Propositions of Law.—It is not error to permit a party to withdraw propositions of law after they have been submitted to the court, but not passed upon.</p>

<p>Assumpsit, on a policy of insurance. Error to 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>Bill to Foreclose a Mortgage.—Error to the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1895.</p>

Action 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 February term, 1895.

<p>Bill for an Injunction.—Error to the Circuit Court of Cook County; the Hon. Rich ard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of Cook ■ County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this • court at'the October term, 1895.</p>

Trespass, for breaking and entering a store and carrying away goods. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1895.

<p>Debt, on a foreign judgment. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>Foreclosure of Trust Deed.—Error to the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1895.</p>

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

<p>Garnishment.—Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Decrees—Pro Confesso — Distinctions—Notice.—A distinction exists between decrees pro confesso under the statute ior want of appearance, and decrees pro confesso for want of an answer after appearance. In the former, there being no one whom the plaintiff can serve ■ with notice, all the necessary proceedings may be ex parte.</p> <p>s 2. Chancery Practice—Parties in Default.—A party against whom a bill has been taken as confessed for want of an appearance can not assign as a cause of error that the proof does not sustain the allegations of the bill. It is a matter of discretion with the court whether it will require evidence to be produced.</p> <p>3. Same—Objections to Decrees.—A party can not object to a decree entered at his own instance.</p> <p>4. Notice—Of Proceedings after Default.—After default for want of an appearance a defendant is not entitled to notice of a reference to, or hearing by the master.</p> <p>5. Same—Of an Application for the Appointment of a Receiver.—A party in default for want of an appearance is not entitled to notice of an application for an appointment of a receiver.</p> <p>6. Default—Objections to the Master's Finding After.—After a defendant has been defaulted for want of an appearance, he can not afterward set up that the finding of the master is erroneous, provided it is within the allegations of the bill.</p>

Assumpsit, for money had and received. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the October term, 1895.

<p>1. Corporations—Must Appear by Their Corporate Names.—The Board of Directors of the Chicago Public Library is a quasi corporation, and in legal proceedings should appear by its corporate name.</p> <p>3. Parties—Individual Members of a Board.—The joining the individual members of the Board of Directors of the Chicago Public Library as parties defendant, is a matter of surplusage.</p> <p>3. City op Chicago—Liability upon a Contract of the Board of Directors of the Public Library.—The city of Chicago is not liable in an action of assumpsit upon a contract of the Board of Directors of the Public Library for work done and to be paid for out of a special fund which can be drawn only upon vouchers of the board.</p> <p>4. Chicago Public Library—A Department of the City.—The Board of Directors of the Chicago Public Library is a department of the city, a quasi corporation, with power to draw vouchers upon a special fund in the city treasury. Assumpsit will not lie against it on its contracts. The remedy is by mandamus.</p> <p>5. Judgment—Against Several Defendants, Wrong as to One—Reversal.—In an action at law against several defendants the judgment is a unit as to all defendants. If it is wrong as to one it must be reversed as to all.</p>

<p>1. Practice—Appeals from, Justices of the Peace. —It is error to dismiss an appeal from a justice for want of prosecution, where the bond is filed with the clerk of the Circuit Court, and the appellee is not summoned nor enters his appearance in that court.</p>

<p>1. Appellate Court Practice—Decision of Abstract Questions of Law.—When nothing but abstract questions of law is involved in a case, the decision of which will affect no rights, the judgment of the court below will be affirmed.</p>

<p>1. Foreclosure—Second Mortgage Decree.—Under a bill to foreclose a second mortgage, if the complainant obtains enough from the proceeds of the sale of the premises to satisfy the incumbrance he represents, the entire object of his suit will be accomplished.</p> <p>2. Same—Decree to Follow the Prayer of the Bill.—Under a bill in chancery praying for the foreclosure of a second mortgage and filed for the sole purpose of obtaining satisfaction thereof, it is error to provide in the decree that if the premises sell for enough to satisfy the amount due and costs, the receiver before appointed is to be continued in the possession of the premises, to care for the same and collect the rents arising therefrom, to apply sufficient thereof, among other things, to the payment of the interest upon the first mortgage, and to pay the balance, if any, to the purchaser at the sale until the property is redeemed, or if not redeemed, until the period of redemption expires.</p> <p>3. Second Mortgage—Scope of a Bill of Foreclosure. —In a proceeding under a bill to obtain satisfaction of a second mortgage, if the complainant obtains enough from the sale of the premises to satisfy the incumbrance he represents, the entire object of his suit will have been attained and his bill will furnish no warrant for doing more.</p>

<p>Trespass on the Case/for personal injuries. Error to the Superior Court of Cook CountyfdShe Hon. Nathaniel C. Sears, Judge, presiding. Heal’d in this court at the October term, 1895.</p>

<p>1. Bastardy—Non-resident Complainants.—A non-resident woman may prosecute the putative father of her illegitimate child in the courts of this State.</p> <p>2. Same—Proof that Complainant is Unmarried,.—When a complainant in bastardy proceedings testified at the time of the trial that she was unmarried, it was held to be sufficient.</p> <p>3. ~EiviDWia&—Convei'sationsNotinthePresenae of the Adverse Party.— It is error to allow a witness to testify to a conversation had by him out of the presence and hearing of the adverse party; but where such conversation is immaterial it is not reversible error.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1895.

<p>I. Practice.—Time for Filing Declaration.—The statute providing that if the declaration, is not filed ten. days before the second term of the court the defendant shall be entitled to a judgment as in case of non-suit, is construed to mean the next term after that for which the service is in time.</p>

<p>Garnishment and Interpleader.—Appeal from the Superior Court of Cook County; The Hon. Henry V. Freeman, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Broker—UTien not Untitled to Commissions.—If a broker, employed to procure a customer, sends to his principal one with whom, without the broker’s knowledge, the principal is already negotiating, and the principal, in ignorance that the broker and customer have had any communication, deals with the customer, and the broker’s acts have had no influence in effecting the trade made, the broker is not entitled to commissions, for he can not fairly be said to have been “ the procuring cause.”</p>

<p>1. Courts—Power to Dismiss a Suit, Sua Sponte.—A court does not sit for the purpose of entering judgment upon matters about which there is neither controversy nor necessity for adjudication. It may sua sponte dismiss a. suit which appears to be a mere mock contention.</p> <p>2. Bastardy—Purpose, of the Proceedings.—Proceedings under the act concerning bastardy are not so much for the purpose of determining whether the defendant is father of the child, as to the end that a fund may be provided for its support.</p>

<p>Assessment of Damages, on dissolution of an injunction. Error to the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in this court at the October term, 1895.</p>

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

<p>Separate Maintenance.—Appeal from the Circuit Court of Cook County; the Hon. Thomas G.Windes, Judge, presiding. Heard in tins court at the October term, 1895.</p>

<p>1. Libel—Restraint of Publication by Injunction.—That a court of equity can not, under its common law powers, by injunction, restrain the publication of a libel, seems to be most in accordance with the authorities in this country as well as in England.</p> <p>2. Injunction—Asserting a Claim to Property.—A person believing himself to be the owner of property and that none other has title thereto, can not be restrained by a court of equity to stating his claim as a mere belief.</p> <p>3. Patents—Jurisdiction of Claims for Infringements.—The truth or falsity of a claim that a certain article is an infringement upon a patent case, can be conclusively determined, only by the judgment of a Federal court.</p> <p>4. Malice—When not to he Inferred.—Where an owner of a patent his been advised in good faith by counsel that a certain article is an infringement, his public assertion of the fact can not be held to be malicious.</p>

Trespass on the Case.—Death resulting from negligence. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1895.

<p>1. Ordinances—License Fees—Confiscation of Property Invested.— An ordinance requiring a license for a business, lawful in itself, which amounts to a confiscation of the property invested in such business or to a prohibition of the business, is void.</p>

Assumpsit, for services as real estate broker. Appeal from the Superior Court of Cook County; the Hon. Jomas Hutchinson, Judge, presiding. Heard in this court at the October term, 1895,

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

<p>Petition for Mandamus.—Appeal from the Superior Court of Cook County; the Hon. Frangís Adams, Judge, presiding. Heard in this court at the October term, 1895.</p>

A ssiunpsit, for legal services. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1895.

<p>1. Equity Practice—Exceptions to a Master's Report.—Exceptions to a master’s report should point out by reference to the proofs the evidence relied upon to sustain the exceptions. The court is under no obligation to search through the evidence to see if something can not be found which will sustain the exceptions.</p> <p>2. Same—Assigning Numerous Exceptions.—The practice of assigning a great number of objections and exceptions to a master’s report or to a decree is one not to be commended.</p>

<p>1. Municipal Corporations-—Authority to Malee Contracts.—No power exists either in the commissioner of public works or the mayor of the city of Chicago, or in both of said officers acting together, to enter into a contract for the erection of water pumping machinery to be employed in connection with the water works system of the city without previous authority of the city council and an appropriation therefor.</p> <p>3. Same—Passage of Ordinances—The Teas and Nays.—The statute requiring that the yeas and nays shall be taken upon the passage of ordinances, and on propositions to create liabilities against the city, or for the expenditure or appropriation of its money, is not complied with by making up and passing what is called an “ omnibusf’ i. e., many ordinances, from various departments of the city administration, which the law requires shall be adopted upon a “yea and nay ” vote, are put together, and all passed by one roll call.</p>

<p>1. Receivers—Possession of Property.—A receiver may apply to the court to aid him in obtaining possession of property which should be sin-rendered to him, but it is not necessarily a part of his duty to do so.</p> <p>2. Same—Bent of Premises—Expenses.—The rent of premises occupied by a receiver while closing up the business, is a part of the expenses of administration.</p> <p>3. Same—Besponsibility for Losses.—Where a receiver acts with due caution, and for what, in his judgment, is for the best interest of the estate, and a loss occurs, without any fault on his part, he will not ordinarily be liable for the loss.</p> <p>4. Same—Compensation Where Losses Have Occurred.—A receiver is entitled to compensation out of the funds in his hands, notwithstanding losses may have occurred.</p>

<p>1. Promissory Notes— Consideration.—A promissory note imports a consideration.</p> <p>2. Same—Indorsements in Blank.—Where a promissory note is indorsed in blank, a suit upon the same maybe brought in the name of any person consenting.</p>

<p>Petition for a Mechanic's Lien.—Appeal from the Circuit Court of Cook County; the Hon. Thomas G-. Windes, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Garnishment—Assignment of the Debt.—A garnishment, although served before the garnishee has notice that the debt has been assigned, does not take precedence of the assignment.</p>

<p>1. Justices oe the Peace—Holding Court Outside of His District— A justice of the peace ought not to hold court outside of the district for which he is appointed.</p> <p>2. Judgments—A Nullity When Void.—A void judgment is a nullity and confers neither right nor authority upon any one.</p> <p>3. Same—Sales Under—When Void.—A sale under a void judgment confers no title, even to a purchaser without notice.</p> <p>4. Execution Sales—Exempt Property Under Void Judgments— Remedy at Law.—Where property exempt from levy and sale is seized upon execution, or when one’s possessions are seized under process issued upon a void judgment, a court of law affords an ample remedy.</p> <p>5. Exemptions—Judgments for Wages—A finding in a judgment that the debt is for “ work and labor,” is not a compliance with the statute providing that no personal property shall be exempt from levy of attachment or execution, when the debt or judgment is for the wages of any laborer or servant, and requiring the court rendering the judgment to find that the demand is for wages due the person suing as a laborer or servant, and express the same in the record of the judgment.</p>

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

Bill to Dissolve a Corporation, etc.—Appeal from an order appointing a receiver entered in the Superior Court Of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in this court at the October term, 1895.

<p>Covenant upon a lease for rent. Error to the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Garnishment—Necessity of a Judgment.—In garnishment proceedings there must he a judgment upon which an execution can issue against the judgment debtor.</p>

<p>Bill for an Injunction.—Error to the Circuit Court of Cook County; the Hon. Murray F, Tuley, Judge, presiding. Heard in this court at the October term, 1895.</p>

Assumpsit, for goods sold, etc. Attachment in aid. Appeal from the Superior Court of Cook County; the Hon. Elbbidge Hanecy, Judge, presiding. Heard in this court at the October term, i895.

<p>1. Construction oe Contracts—Intention of the Parties.—In construing a contract, the first point is to ascertain what the parties themselves meant and understood.</p>

<p>1. Personal Injuries—Medical Attendance—Not a Condition to Recovery. —An injured person who, from the circumstances, may reasonably believe that Ms injury is of that character that rest alone will afford a speedy recovery, should not be required to incur heavy expenses of nursing and medical attendance as a condition to his right of recovery of adequate damages from the person doing the wrong.</p>

<p>Order Appointing a Receiver.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Bills of Review—When to be Brought.—A bill of review can only be brought upon error in law appearing upon the face of the decree without further examination of matters of fact, or upon new matter which has been discovered siiice the decree.</p> <p>2. Appellate Court Practice—Abstracts—Upon an abstract containing no copies or abridgments of any part of the record, but pointing only to places in the record where the same may be found, the action of the court below can not be reviewed.</p>

<p>1. Negligence—Burden of Proof.—In an action to recover damages for a personal injury resulting from negligence, the burden of showing such negligence is on thex>laintiff.</p> <p>3. Common Carriers—No Warranty as to Condition of Goods Transported.—in, merely delivering goods in the condition in which they are received by common carriers, there is no warranty, expressed or implied, that it will be safe or prudent to handle or use such goods.</p>

<p>Debt, upon a forthcoming bond. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the October term, 1865.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1895.

<p>Motion for a Rule on the Sheriff to pay over certain funds, etc. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October" term, 1895.</p>

<p>1. Equity—Familiar Principles. —He who asks equity must do equity.</p>

<p>1. Common Carriers—Act of God—The Johnst&um Flood.—A common carrier is not liable for a loss of baggage occasioned by the act of God.</p> <p>2. Same—Contracts of Transportation—By What Law Governed.— The law of the State in which a contract of transportation is made, governs the rights and liabilities of .the parties to it.</p>

<p>Equity Practice—Exceptions to a Master’s Report Must be Specific.—Exceptions to the master’s report must be specific, and to make them so, the evidence which furnishes the ground of the exceptions should be required, by the party excepting, tobe stated by the master; for otherwise the court will not wander at large into the evidence in order to ascertain whether, by possibility, the master was right or wrong in his conclusion.</p> <p>2. Same—Exceptions—Duty of Master.—If either party is dissatisfied with the master’s decision, on requesting him, he should certify the evidence touching the items decided by him and excepted to, to the court, where his decision can be reviewed.</p>

Bill for Injunction.—Appeals from an order of the Circuit Court of Cook County granting an interlocutory injunction; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1895.

<p>Injunctions.—Appeal from an interlocutory injunction issued by the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1895.</p>

Trespass on the Case, for malicious prosecution. Appeal from the Superior Court of-Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1895.

Motion to Vacate Judgment by Confession, for rent due, etc. Error to the Circuit Court of Cook County; the Hons. John Gibbons and Richard W. Clifford, Judges, presiding. Heard in this court at the October term, 1895.

<p>Injunction.—Interlocutory order. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1895.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding. Heard in this court at the October term, 1895.

<p>1. Lease—Assignment and Re-assignment—Liability of Second Assignee.—An assignee of a lease may, by re-assignment, divest himself of all liability upon the lease.</p> <p>3. Distress tor Rent—Relation of Landlord and Tenant Must Exist.—There can be no distress unless the relation of landlord and tenant exists, and there is a certain fixed rent in money, produce or services, payable at a certain time.</p>

<p>In Equity.—Bill for relief. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Voluntary Assignments—Not Revocable as Against Creditors. •—To revoke a deed of assignment after the rights of creditors have attached, the assent of all creditors is essential, in the absence of express statutory provision. Howe v. Warner, 154 Ill. 227, followed.</p> <p>2. Same—Preferences Not to be Given.—The unadministered estate of an insolvent under the statute concerning voluntary assignments, can not be lawfully appropriated for the purpose of purchasing a majority of claims against the estate and thereby procure a discontinuance of the assignment proceedings and a payment in full of certain creditors to the exclusion of others. So doing, is in effect to give a preference to one set of creditors over another, and is in violation of the letter and spirit of the statute.</p>

<p>Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October 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 October term, 1895.

<p>I. Appellate Court Practice—When the Court toillnot Reverse.— When a cause has been tried by two juries with like results, the Appellate Court will not reverse and remand it for a new trial, simply becaus e if the matter were submitted to it, it would not reach the same result as did the juries and judges below.</p>

Assumpsit, goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1895,

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

<p>1. Contracts—Instruments Without Meaning.—Courts will not enforce contracts which, after applying the helps which the rules of interpretation afford, are still indefinite and uncertain.</p>

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 October term, 1895.

Quo W arranto, to test the right to an office. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1895.

<p>Quo Warranto Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Jorra Gibbons, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Judgments—Not to be Reversed for Errors in Process.—A judgment will not, generally, be reversed for an error in the process by which it was reached. The reason of the rule extends to a cause in which the appellant refrains—with the means in his control—from stating what the merits are.</p> <p>2. Continuance—Sickness of Attorney.—While a temporary postponement of a trial may be granted for the sickness of an attorney, it is no ground for a continuance.</p> <p>3. Judicial Notice—Rules of Court.—The Appellate Court does not take judicial notice of the rules of the court below.</p> <p>4. Practice—Impaneling the jury.—In the matter of errors and irregularities in impaneling the jury, the bill of exceptions must control, and not the record made by the clerk.</p> <p>5. Verdicts—Practice.—The fact that in a written verdict the amount of damages was left blank and filled in from an oral statement by the foreman, to which all the jurors assented, is not error. At common law the verdict was not written, and by statute it is unnecessary.</p>

<p>Petition for Mandamus.—Appeal from the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in this court at the October term, 1895.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1895.

<p>Separate Maintenance.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1895.</p>

Assessment of Damages, on the dissolution of an injunction, etc. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Toley, Judge, presiding. Heard in this court at the October term, 1895.

<p>• Assumpsit, on a guaranty of a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1895.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1895.

Trespass on the Case, for being ejected from a railroad train. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1895.

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

<p>1. Practice—Verdict and Judgment Part of the Common Law Record.—The bill of exceptions is not the proper place for either a verdiet or a judgment. These are part of the common law record and preserve themselves without the aid of a bill of exceptions.</p> <p>Same—Exceptions to Verdict Not Necessary.—It is not necessary to except to a verdict; it is only to the action of the court that exceptions are required to be taken.</p> <p>3. Same—Motion for a New Trial, etc.—Bill of Exceptions.—A motion for a new trial and the exception to the overruling of the same must be made to appear in the bill of exceptions if it is desired to make them a part of the record. The embodying of the motion in the record under the certificate of the clerk is not sufficient.</p> <p>4. Bill of Exceptions—Must he Sealed.—A bill of exceptions without a seal is a nullity.</p>

<p>Assumpsit.—On a judgment in condemnation proceedings. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presidmg. Heard in this court at the October term, 1895.</p>

<p>Assumpsit, for rent. Appeal from the Superior Court of Cook County; the Hon. George F. Bl-anke, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>Action of Del)t.—Appeal from the Superior Court of Cook Comity; the Hon. Nathaniel C. Sears, Judge, presiding. Heard -in this court at the October term, 1895.</p>

<p>Assumpsit, for commissions. Appeal from the Circuit Court of Cook County; the Hon. Arthur Chetlain, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Pleadings—May be Dispensed With,—There is no law compelling the parties to prepare and file pleadings if they are content to have their case presented and heard without them.</p> <p>2. Interest—Not Recoverable for Delays in the Collection of Special Assessments.—A person entered into a contract with the city of Chicago to perform, the -work required for an improvement, and was to be paid out of the proceeds of a special assessment, levied or to be levied therefor, when it was collected. It was held, that although the city wrongfully delayed the collection of the assessment for a year, interest, as such, was not recoverable upon the sum, which such person should in good faith have been paid a year before he was.</p> <p>3. Same—When. Estopped from Claiming.—Where a party receives without protest, a sum of money for a year overdue, such reception will preclude him from, the recovery of interest for the time the money was past due.</p>

<p>Assumpsit.—Labor and materials. Appeal from the Circuit Court of Cook Countythe Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1895.</p>

Foreclosure, of trust deed by an heir, etc. Appeal from the Superior ° Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1895.

<p>Assumpsit, on a promissory note. Error to the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the October term, 1895.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1895.

Trespass on the Case.—Death from negligent act. Appeal from the Superior Court -of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1895.

<p>1. Gambling Contracts—Right of the Loser to Recover Back his Col-laterals.—Under orders from the appellee, appellants, who were brokers and bankers, bought and sold stocks in their firm name on her account; she leaving with them convertible securities to secure them against loss in the transaction. There was a loss. She filed a bill to compel a restoration to her of such securities as had not been converted and payment for such as had been. A decree was rendered in her favor upon the theory that the transactions were gambling contracts, and illegal and void. Held, the decree was proper.</p> <p>2. Master’s Report—Conclusive.—The report of a master upon questions of fact is as conclusive as the verdict of a jury.</p>

<p>Attachment Proceeding.—Error to the Superior Court of Cook» County; the Hon. Arthur Chetlain, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Defenses— Conditional Delivery of Contracts.—In an action upon a contract the defendant may show that he delivered the contract, not as a contract, but to become a contract only upon the happening of a certain contingency which never happened.</p> <p>3. Description—Of Premises in a Contract.—Premises described as ‘ ‘ My property, 48 Eldridge Court ” in a contract with a real estate broker for the sale of the same. There being an Eldridge Court in the city of Chicago of which the contractor was part owner, and the contract being dated at Chicago, the presumption is that the description referred to that property.</p> <p>3. Sales—Real Estate Broker—When the Owner Must Object.— When a real estate broker sells property, in his hands for sale, to a purchaser who is ready, able and willing to take and pay for it, if any of the terms of sale as to payments, abstract or deed, are unsatisfactory to the owner he must object on that ground and not refuse absolutely to sell.</p> <p>4. Judicial Notice—Of Ordinances.—Courts do not take judicial notice of ordinances. They must be proved.</p> <p>5. Practice—Objections Must be ¿fade in the Court Below.—When an allowance of interest is wrong, the point must be made in the court below. It comes too late for the first time in the Appellate Court.</p>

<p>Assumpsit.—Money had and received. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. • Heard in this court at the October term, 1895.</p>

<p>Assumpsit, for rent. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1895.</p>

Assumpsit, for money due on contract. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1895.

<p>1. Collateral Securities—When to he Surrendered.—Where a person in possession, and the owner of mortgaged premises, procures policies of insurance thereon, delivers them to the mortgagee as collateral security for the debt, when the mortgage debt is satisfied, even though by a sale under a decree of foreclosure, he is entitled to the return of his policies.</p>

<p>Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Arthur Chetlain, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Appellate Court Practice—Stipulations as to Record.—The Appellate Court will not allow parties to stipulate what less than a complete record shall constitute the record for the court to act upon.</p> <p>2. Same—Affirmance upon Incomplete Records.—The Appellate Court will not reverse a judgment upon a partial record of the court that rendered it.</p> <p>3. Courts—Power to Appoint Custodians of Moneys, eta.—When a court by its order makes a particular person, not its clerk, a depositary of its funds, and such person, with a knowledge of its order, accepts the deposit, he becomes an officer of the court for the particular purpose of holding the fund, and is subject to the orders of the court concerning it. He may be adjudged in contempt if he fails, without good reason, to refund the money when ordered to do so.</p> <p>4. Same— The Cleric as Custodian of Moneys.—The statute makes the clerk responsible for all moneys coming to his hands by virtue of his office, and requires him to perform all duties pertaining to his office, as required by law, or the rules and orders of bis court, but the statute does not require the clerk to act as the depositary of funds paid into couit, and he can be required to act as such only in pursuance of some order or rule of court.</p> <p>5. Clerks of Courts—Not Receivers of Money of litigants.—The clerk of a court is not, by virtue of his office, a receiver of the court, and is not bound to receive moneys from parties litigant to hold subject to the result of litigation except under an order of court.</p> <p>6. Interest—Voluntary Depositaries not Bound to Pay Interest.—If a person who is not bound to receive money as a deposit, does so as a volunteer with no agreement as to terms, except that he will repay when required, he is not bound to pay interest on the money while it remains in his keeping, even though it may yield a profit to him.</p> <p>7. Practice—Joinder of Parties.—It is improper to join the clerk of a court with his predecessor in a proceeding to require them to pay interest on funds alleged to have been received by them respectively while in office.</p>

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

<p>Creditor’s Bill.—Error to the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1896.</p>

<p>Assumpsit, for rent. Appeal from the Circuit Court of Cook Comity; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1895.</p>