Volume 61 — Illinois Appellate Court Reports

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

<p>1. Promissory Notes—Payable to the Maher’s Order.—The title to a note drawn payable to the order of the maker, and indorsed and delivered by him, passes by delivery.</p> <p>2. Foreclosure—What is not a Defense.—A person, for a loan, made his note payable three years after date to his own order, and indorsed and delivered it, with a trust deed to secure the same, to a party named as trustee, who was also a banker; shortly afterward the trustee sold the note, but the maker paid to him sums of money at different times, trusting to him to apply them on the note at maturity, which was not done, and when the note matured the banker had failed. It was held that he had no recourse upon the owner of the note, and trust deed.</p>

<p>1. National Banks — Preliminary Organization—Power to Make Leases.—Under the Federal statute, providing that no National Banking Association shall transact any business, except such as is incidental and necessarily preliminary to its organization, until it has been authorized by the comptroller of the currency to commence the business of banking, such an association has no power to lease offices to be used by it as a banking office, such an act not being incidental and necessarily preliminary to its organization.</p> <p>2. Same—Place of Business.—By the statute requiring a National Banking Association to state in its organization certificate the place where its operations of discount and deposit are to be carried on, is meant the town or city, and not the room, street or number in such town or city.</p> <p>8. Estoppel—National Banks, When Not Bound by.—A National Banking Association is not estopped to deny its authority to do an act not necessarily and impliedly incidental to its organization, before it has been authorized by the comptroller of the currency, from the fact that it represented itself fully authorized to do the act.</p> <p>4. Corporation—Benefits Received Under Ultra Vires Agreements. —When benefits have been received under an ultra vires agreement, relief granted is not upon the basis that a valid or merely voidable contract has been entered into, but the act not being malum in se, the parties will, as near as they well can, be restored to their original condition.</p>

<p>i, Statutes—Rule of Construction.—Statutes should be so construed as to give them a prospective operation only. They should be allowed to operate retrospectively only where the legislative intention to give them such operation is clear and undoubted.</p> <p>2. Benevolent Association— Right to Change the Beneficiary.— Where the right to change the beneficiary named in the certificate of a benevolent association exists by the statute under which the association is organized, and at the time the certificate is issued, such right is one of the considerations entering into the contract, and is a material right which can not be taken away by the legislature.</p> <p>3. Same—Right to Change the Beneficiary by Will.—Under a certificate of a benevolent association, issued while the act of July 1,1887, providing for the organization of associations for the purpose of furnishing benefits upon the death of a member to the widows, heirs, relatives, legal representatives or the designated beneficiaries of such deceased member, and while the by-laws of the association provided, that on the death of a member, the endowment shall be paid (1) to such person as he may designate in his last will and testament or certificate, it was held, that notwithstanding the association had refused, at his request, to change the beneficiary, he might legally do so by his will.</p>

<p>Bill to Subject Beal Estate to the Payment of Debts.—Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Debt, upon a county treasurer’s bond. Appeal from the Circuit Court of Menard County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Trespass, etc., for personal injuries. Appeal from the Circuit Court of De Witt County; the Hon. Lyman Lacey, Judge, presiding.</p>

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

<p>Claim in Probate.—Appeal from the Circuit Court of Piatt County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>Contest of a Will.—Appeal from the Circuit Court of Piatt County; the Hon. Edwabd P. Vail, Judge, presiding.</p>

<p>Contest of Will.—Error to the Circuit Court of Piatt County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>1. Insurance—Conditions of the Policy.—A condition in a policy of live stock insurance providing that the company will not be liable for losses if the assured, in case of sickness or accident to the animal insured, fails to give immediate notice to the secretary of the company of such sickness or accident, together with the name and address of the veterinarian employed, is a condition binding on the parties and reasonable in its terms.</p> <p>2. Same—What is Not a Waiver of Conditions.—The fact that a live stock insurance company, on being notified of the sickness of an animal, sent a surgeon to examine it, is not a waiver of the condition of the policy, nor is the sending of an adjuster after its death and receiving proofs of loss.</p> <p>3. Pleading—Defective Declaration.—If a declaration is so fatally defective as not to support the judgment, it may be taken advantage of by a motion in arrest or upon error.</p> <p>4. Evidence—When the Sufficiency of, May be Questioned on Error.— If a declaration fails to state a cause of action and all the facts therein are proved, and no more, the sufficiency of the evidence to support the judgment may be questioned on error.</p>

<p>Petition for an Order on a Receiver, etc.—Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Quo "Warranto.—Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. School Moneys—Action Against Trustees by Directors, etc.—An action does not lie in favor of the directors of a school district, against the township trustees of another township, for moneys claimed by the district to have been wrongfully paid to said trustees by the collector.</p> <p>If the collector has not paid the money to the parties entitled to it, he is still responsible to them. There is no privity between the district directors and-the township trustees; they must look to the collector.</p>

<p>I. Fees—Collection of, in Advance.■—It was not the intent oí the legislature to require county officials to demand fees in advance and be liable for all fees earned, whether collected or not.</p>

<p>1. Goods on Commission—Not Subject to Executions.—Where goods are consigned to a person for sale on commission they are not subject to be taken in execution against such person.</p> <p>2. Same—What are Goods on Commission.—A manufacturer sent some cigars to a merchant to be sold on commission. He was to sell at any profit he saw fit to, and pay the manufacturer for all sold, at the rate of §33.50 per thousand. All unsold, the manufacturer was to take away. Held, that the transaction was a consignment for sale on commission, and not a sale,</p>

<p>1. Wager—What Constitutes.—In order to make a wager both parties must intend it to be such.</p> <p>2. Gambling Contracts—What are Not.—Appellee bought some hogs of appellant and shipped them to Chicago. While the hogs wére en route to Chicago he offered to re-sell them to appellant at a loss of $100. The proposition was accepted and a contract entered into accordingly. Held, it was not a gambling contract.</p>

<p>Assumpsit.—On an accident policy. Appeal from the Circuit Court of Christian County; the Hon. Jacob Fouke, Judge, presiding.</p>

<p>Claim in Probate.—Error to the Circuit Court of Montgomery County; the Hon. Jacob Fouke, Judge, presiding.</p>

<p>1. Administration op Estates—Power of Executors to Dispose of Assets.—It is not within the power of an executor to contract away the assets of an. estate, and an agreement to. do so presents no lawful defense to an action at law brought to collect such assets,</p> <p>2. Injunction—To Restrain a Suit at Law.—An injunction will not lie to restrain the prosecution of a suit at law where the complainant shows by his bill that he has no available defense to the action at law or in equity.</p>

<p>Assumpsit, for goods sold. Appeal from the Circuit Court of Menard County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Action Under the Dram Shop Act.—Appeal from the Circuit Court of Fulton County; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>1. "Variance—Immaterial Pleadings and Proofs.—The declaration averred that divers planks of a sidewalk were broken, loose and unfastened, by means whereof the plaintiff stepped on a loose and unfastened plank, and stumbled and fell, etc. The proof was that the planks were loose and unfastened, and as the plaintiff and her husband were walking along, he stepped upon the end of a loose plank, just as she was about to step upon it, and was tripped and fell, etc. Held, the variance was unimportant and immaterial.</p> <p>2. Same—Practice as to.—The objection to evidence on the ground of a variance, must be made specifically in the trial court. It is too late to make it for the first time in a court of review.</p> <p>3. Instructions—Upon a Given Hypothesis.—It is not error, in a proper case, to instruct a jury upon the hypothesis that a sidewalk was out of repair and in a dangerous condition, and that the city knew of the defect a sufficient length of time to have repaired it before the injury occurred, or by the exercise of reasonable care, might have known of it in time to have remedied it before the injury occurred and did not do so.</p>

<p>Assumpsit, for work, labor, and services. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Assumpsit, set-off, etc.—Appeal from the County Court of Green County; the Hon. John C. Bowman, Judge, presiding.</p>

<p>1. Contracts—Parol Evidence Not Admissible to Vary, etc.—Parol evidence is not admissible to change the terms of a written agreement,</p> <p>2. Consideration—Failure of—Contract of Subscription.—A person signing a subscription list for the erection of a church can not show the failure of the association to perform a contemporaneous collateral parol agreement in regard to the location of the church as a failure of the consideration of the contract of subscription.</p>

<p>Replevin.—Appeal from the County Court of Moultrie County; the Hon. Isaac Hudson, Judge, presiding.</p>

<p>Debt on a Forthcoming Bond.—Error to the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>Petition for Mandamus.—Appeal from the Circuit Court of Montgomery County; the Hon. RobertB. Shirley, Judge, presiding.</p>

<p>In Equity.—Bill to impeach a decree. Error to the Circuit Court of Coles County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>Assumpsit, on a promissory note. Error to the Circuit Court of Edgar County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the City Court of Canton; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>1. Real Estate Agent—When Not Entitled to Commissions.—In order to be entitled to his commissions the burden is upon the agent to establish by a preponderance of the evidence a valid contract authorizing him to act as such agent and that he found a purchaser able and willing to buy.</p> <p>3. Same—Contract Must he Definite.—To. the case at bar the court held the transaction did not amount to a contract, etc.</p>

<p>In Equity.—Bill for relief. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Ordinary Care—Use of—Negligence.—Because a person’s face is averted for a moment while walking along a sidewalk, negligence is not to be imputed. If a person acts as persons ordinarily would under similar circumstances, he is exercising ordinary care.</p> <p>2. Negligence—Defective and Old Sidewalks.—To patch up an old sidewalk where the boards and stringers are rotten, unsafe, and constantly getting out of order, is not using due care on the part of the city to keep its walks in repair.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Shelby County; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Actions Against Stockholders, upou the obligations of the corporation. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Corporations—When Liable as Individuals-—Principal and Agent.—Corporations become liable the same as individuals where facts exist from which the relation of principal and agent is implied.</p>

<p>Replevin.—Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Attachment.—Appeal from the Circuit Court of De Witt County; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>Bill for Injunction.—Appeal from the Circuit Court of Macoupin County; the Hon. Jacob Fouke, Judge, presiding.</p>

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

<p>Action for Killing Domestic Animals.—Appeal from the Circuit Court of Cumberland County; the Hon. Silas Z. Landes, Judge, presiding.</p>

<p>Transcript from a Justice of the Peace.—Appeal from the Circuit Court of Coles County; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>1. Verdicts—Conclusive upon Questions of Fact.—Where the main question in a case is one of fact, and is fairly submitted to a jury, their conclusion must be accepted as a final solution of the controversy.</p>

<p>Trespass, etc., for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>1. Witnesses—Waiver of Personal Privileges in Testifying.—A person who makes the affidavit upon which an information for a criminal offense is based, and requests the state’s attorney to file the same, waives his right to decline to testify on the trial upon the ground that his testimony might expose him to a criminal prosecution.</p>

<p>Assumpsit, on a life insurance policy. Appeal from the Circuit Court of DeWitt County; the Hon. George W. Herdman, Judge, presiding.</p>

<p>Bill for Re-adjusting the Settlement of an Estate.—Error to the Circuit Court of Scott County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Municipal Corporations—Power to Contract—Ultra Vires.—The powers conferred by the general statutes of this State do not in terms authorize a city to bind itself by contract to furnish water for a period of years at a fixed rate, nor is such authority implied.</p> <p>2. Same—May Make Authorized Contracts.—Municipal corporations may make authorized contracts, but they have no power, as a party, to make contracts or pass ordinances which shall cede away, control or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties.</p>

<p>1. Appeals—Where the Oi'der Omits to Name the Court.—Where an appeal is granted, and the order granting it omits to designate the court to which the appeal is allowed, and by law it can go to a certain court only, the appellant may follow the law, file his record in that court, and have his appeal heard there. (See Mississippi Valley, etc., v. Bermond, 39 Ill. App. 267.)</p> <p>2. Railroads—Approaches to Crossings.—Where a railroad company, when constructing its road, for purposes of its own raised an embankment in the natural bed of a watercourse, obstructed the flow of the stream and diverted its waters into a ditch, which it dug for that purpose on its right of way, it was held that the company could be compelled to build a bridge across the ditch as an approach to a railroad crossing, under Sec. 77, Oh. 14, R. S., entitled Railroads and Warehouses.</p>

<p>1. Highways—Rights of the Owner of the Fee.—The public have an easement in the soil of a highway for travel thereon, and for using the same in a reasonable and proper manner, to keep the highway in repairs, and to improve it, not only at the place where the soil is taken, but at other points upon the highway.</p>

<p>Trespass, etc., for personal injuries. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Judgments by Confession.—Motion to vacate, etc. Appeal from the Circuit Court of Christian County; the Hon. Jacob Fouke, Judge, presiding.</p>

<p>1. Corporate Limits—When Collaterally Involved. —Corporate limits, when only collaterally involved, may be, prima facie, considered as embracing all territory over which the municipality exercises jurisdiction for municipal purposes.</p> <p>2. Same—Presumptions as to Corporate Limits. —Where the owner of a strip of land transferred it, or the possession of it, in some way not disclosed, to a city having power to extend its boundaries, and the city since such transfer devoted it to municipal uses and used and worked it as a street, the presumption is that the land has in someway been legally annexed to the city, and its boundaries extended accordingly.</p> <p>3. Municipalities—Power to Disconnect Territory.—A city can not, by an ordinance purporting to define its boundary lines, disconnect territory legally annexed; that can only be accomplished by a proceeding in compliance with the statute.</p> <p>4. Same—Organization and Boundaries Not to be Determined in a Collateral Proceeding.—The organization of a municipal corporation or the validity of the manner in which it has extended its boundaries, can not be questioned in a collateral proceeding. The conclusive presumption obtains, that the defacto city is a city de jure, and its defacto limits are its limits de jure.</p>

<p>Assumpsit, for work, labor and services. Appeal from the Circuit Court of Cook County; the Hon. Erancis Adams, Judge, presiding.</p>

<p>Attachment in Aid.—Garnishee proceedings. Appeal from the Circuit Court of Cook County; the Hon. Erank Baker, Judge, presiding.</p>

<p>1. Practice—Call of the Poehet—Improper Dismissal of an Appeal. —A published notice that a general call of cases would be begun on a certain day, and when called a case might be stricken from the docket or dismissed for want of prosecution, is no authority for dismissing the appeal in a case upon the docket on appeal from a justice of the peace. Under it the case, not the appeal, might be dismissed.</p>

<p>Trespass on the Case.—Malicious prosecution. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>Bill for an Accounting.—Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>Trespass on the Case, for damages caused by the erection of a viaduct. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>1. Appellate Court 'Practice—Insufficient Abstracts—Affirmance of the Judgment.—Where an appellant fails to comply with rules of court respecting the making of abstracts of the record the judgment of the court below will be affirmed.</p>

<p>Foreclosure, of a trust deed. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>1. Foreclosure—Defense of Usury.—In a proceeding to foreclose a trust deed, where the defense of usury is set up in the answer the complainant may remit all claims for interest, and have a decree for the amount of money actually advanced and other legal charges.</p> <p>2. Assignments of Error—When too General.—Assignments of error, such as “ the court erred in entering the final decree,’’and that ‘ * the decree is in other respects erroneous,” are too general. The very error relied upon should be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is.</p>

<p>1. Execution—Returns “ With Schedule ”—Creditor’s Bill.—From the fact that the words “returned with schedule” are added to the return of an execution unsatisfied, the court can not imply that the defendant might have had property to satisfy it. If anything is implied from such a return, it is that the defendant had only property exempt from execution which is not in the way of a creditor’s bill.</p>

<p>1. Restaurant—Is not an Inn.—A restaurant is not subject to the rule of law which make innkeepers responsible for losses and injuries sustained by then- guests.</p>

<p>1. Special Finding—When it Controls the General Verdiet.—A special finding which negatives the ground of the action, will control a general verdict for the plaintiff.</p> <p>2. Judgment—On Special Finding.—To entitle the defendant to a judgment upon the special finding where the general verdict is for the plaintiff, such finding must relate to those ultimate facts upon which the rights of the parties depend.</p>

<p>1. Abstract—Defeats in.—Because of a defective abstract the judgment is affirmed.</p>

<p>Assumpsit, etc. Appeal from the County Court of Cook; the Hon. Orrin N. Carter, Judge, presiding.</p>

<p>1. Questions of Fact—Time of Furnishing Materials.—Where a person signed an agreement to be responsible for materials furnished for the erection of a house, the question as to whether some of the material was furnished before the agreement was signed, is one of fact for the jury.</p>

<p>1. Creditor’s Bill—Unassigned Dower.—An unassigned, consummate right of dower is a right resting in action only.</p> <p>3. Dower—Unassigned—May be reached by Judgment Creditors.— A bill in equity may be maintained by a judgment creditor to obtain the appointment of a receiver and the institution of measures whereby an unassigned right of dower may be changed into property, sold, and the proceeds applied in payment of the judgment.</p> <p>3. Demand—Not Required Before Filing a Creditor's Bill.—The statute does not require that as a foundation for a creditor’s bill, personal demand shall have been made upon the debtor to satisfy the judgment.</p> <p>4. Sheriff’s Return—Foundation for a Creditor's Bill—Upon the sheriff rests the responsibility of returning an execution “no property found,” and if he does so without directions from the creditor it is a sufficient foundation for a creditor’s bill.</p>

<p>Attachment Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judg-1, presiding.</p>

<p>1. Credibility op Witnesses—For the Jury.—The question of the credibility of witnesses is one for the jury.</p> <p>3. Waiver—Notice of Resale of Goods.—A person entitled to notice of the resale of goods waives the same by telling the persons of whom such notice is required, in reply to the question “What shall be done .with them ? ” that he does not care.</p> <p>3. Vendor and Vendee—Resale of Goods on Refusal to Accept.— When a vendee refuses to accept goods, and waives notice of the resale of them by the vendor, the vendor is only required, on a suit for the recovery of damages for non-acceptance, to show that he disposed of-such goods in good faith,- with reasonable prudence and discretion.</p>

<p>1. Attachments—May be Tried Out of its Order.—Under Section 18, Chapter 110, R. S., entitled “ Practice,” it is descretionary with the court to advance the trial of an attachment issue, and for good and sufficient cause direct it to be tried out of its order on the docket.</p> <p>2. Same—Trial of the Different Issues.—Section 27, Chapter 11,R. S., entitled “ Attachment,” warrants the trial of an attachment issue before the hearing upon the case to which it is an adjunct. It is not compulsory to submit both issues at the same time to one jury, and the parties may consent to separate trials, or the court in its discretion may so order.</p> <p>3. Same—Amendment of Affidavit — New Causes—New Bond.— When the affidavit for an attachment is insufficient it may be amended; but when the plaintiff moves to file an additional affidavit setting up other grounds for attachment, such motion should be accompanied with an offer to file a new bond conditioned for the prosecuting with effect, etc., the additional causes set forth.</p>

<p>Proceedings for Judgment, on an award. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>1. Real Estate Broker—When Entitled to Commissions.—If for any fault of the principal a sale is not effected to the person who has been introduced to him by his broker, he is still entitled to commissions if he found and presented a customer able, ready and willing to purchase upon the given terms.</p> <p>3. Same—Owner May Employ Two or More.—Unless he specially agrees not to do so an owner may employ two or more brokers, and in such case it is the broker who is the efficient cause of the sale who is entitled to commissions, and his right is not affected by the fact that he sells to one whose attention to the property had before been called toy another broker.</p> <p>3. Same—Whieh One is Entitled to Commissions.—It is not the broker who first speaks of the property, but he who is the procuring cause of the sale who is entitled to the commissions.</p> <p>4. Same—Rights of the Party Selling.—The party selling, where several brokers have been employed, may, in the absence of collusion on his part, pay the commissions to the agent through whose instrumentality the sale was brought about, without inquiiy as to whether some other broker may have had something to do with effecting the sale.</p> <p>5. Evidence—Purchaser's State of Mind.—In determining the question as to which one of two brokers effected a sale, it is proper to show toy the purchaser what was the state of his mind regarding the purchase of the property after he left the broker claiming the commissions.</p>

<p>1. Negligence— Obstruction to Streets.—Permitting a plank to remain sticking up from a hole left by a broken cover of a manhole in a street, from the morning of one day to the night of the next, makes it a question for a jury whether the city was negligent.</p> <p>2. Same—Qareless Driver.—The fact that the driver of a carriage may be careless does not excuse the city if it has been negligent in permitting obstructions to streets.</p>

<p>Assumpsit, for work, labor and materials. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>1. Appellate Court Practice—Defective Record.—The Appellate Court can not enter upon a consideration of the merits of a case where the record does not contain the evidence under which the appellant claims.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>1. Questions of Fact—Finding by the Court Conclusive.—Where the evidence is conflicting, the finding of the court upon questions of fact is conclusive.</p>

<p>1. Real Estate Broker—Not Entitled to Commissions—Abandonment.—Where a real estate broker ceases his endeavors to find a purchaser, the owner is justified in treating his conduct as an abandonment of all effort to sell the property. He is not entitled to commissions on the property when sold by another agent.</p> <p>2. Findings of Fact—Where the Buie Does Not Apply.—The rule that the finding of the court below, upon a question of fact, is generally binding upon the Appellate Court, does not apply to a case of a failure to draw the proper inference from undisputed facts.</p>

<p>1. Mechanic’s Liens—Requisites of the Statement.—Ihe fact that one of the items of the statement filed by a claimant for a lien is disallowed, does not deprive the person filing the statement from having his lien for other items.</p> <p>2. Same—Statement of Date, etc.—Where the claimant in his notice filed, states the date of the contract under which he claims a lien, as “ on or about July 2, 1892,” and the evidence shows it to have been dated June 29, 1895, it was held that the statement in the notice filed was a sufficient compliance with the law.</p> <p>3. Equity Practice—Exceptions to the Master's Report.—Exceptions to the .master’s report must state, article by article, those parts of the report which are intended to be excepted to and designate the particular evidence which it is claimed justifies the exceptions.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. George F. Blanks, Judge, presiding.</p>

<p>1. Construction of Contracts—Where the Meaning is Clear.— Where the meaning of an instrument is clear, there is no room for construction.</p> <p>2. Same—Where a Patent Ambiguity Appears.—Where a patent ambiguity appears, yet, if the entire instrument is such that the intent of the parties can be ascertained therefrom, a court of law will construe and enforce such ambiguous document.</p> <p>3. Same— Where the Parties Save Acted.—Where both parties have acted upon a particular construction of an ambiguous document, that construction, if in itself admissible, will be adopted by the court. To this extent its original effect, though it can not be altered, may be explained by the conduct of the parties.</p> <p>4. Estoppel—Not by an Unsworn Answer in Chancery.—A person is not estopped-by his unsworn answer, in a suit in chancery, signed by counsel. It is but a mere pleading concluding no one.</p> <p>5. Same—Admissions.—Admissions, where acted upon by others, are conclusive against the party making them, in all cases between him and the party whose conduct he has thus influenced.</p>

<p>1. Partnerships—What are Firm Obligations.—It is immaterial how notes are signed if they were given for obligations of the firm; they represent firm obligations, and should be allowed against the firm assets under an assignment for the benefit of creditors. The fact that persons not members of the firm also sign such notes, only makes them obligations of others as well as of the firm.</p>

<p>Assumpsit, upon a promise to pay.' Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Judgments by Confession— Waiver of Technicalities.—By asking for and obtaining leave to plead in the case of a judgment entered by confession, all technicalities and objections to the judgment are waived.</p> <p>3, Joint Action—When Not a Bar.—A joint action against all defendants is no bar to a subsequent action against one alone.</p> <p>3. Waiver— Of Errors in Confession of Judgment.—Where a defendant shows no equitable reasons why a judgment by confession should not have been rendered against him, the court will not inquire as to errors in rendering judgment against him alone upon a declaration against him and another jointly.</p>

<p>Assumpsit, for goods sold, etc. Appeal from the Superior Court of Cook County; the Hon. Arthur Chetlain, Judge, presiding.</p>

<p>1. Statute of Limitations—New Promise to Pay.—The unqualified acknowledgment of a debt, and the unequivocal promise to pay it, are sufficient to take a case out of the statute of limitations.</p>

<p>1. Final Order—What is Not—Appeals.—Ajo. order of the County Court upon an assignee to file a full and complete report of his receipts and disbursements as such assignee, not theretofore reported, to the court within twenty days, is not a final order from which an appeal will lie.</p> <p>2. Insolvent Estates—Power of the County Court.—So long as the estate of an insolvent remains to be distributed the court may revoke or alter any former proceeding.</p>

<p>1. Extras—Burden of Proof as to.—Where a contractor makes a demand for extras, the burden of proof is upon him to show that the work in question was extra.</p>

<p>1. Partnership—Rights Accruing Before the Death of a Partner— Firm Assets. —Where a cause of action for the breach of a contract accrues before the death of a partner, the recovery of damages for the same is to be listed as a firm asset.</p> <p>2. Same—Compensation of Surviving Partner.—Where services in excess of the mere winding up the business of a partnership are rendered, the partner rendering them is entitled to compensation for such excess.</p>

<p>Assumpsit, etc.—Appeal from the County Court of Cook County; the Hon. Chables H. Donnelly, Judge, presiding.</p>

<p>1. Profits—When Recoverable—Set-Off:—Profits which are the direct and immediate fruits of a contract entered into between the parties, are part and parcel of the contract itself and are presumed to have been taken into consideration by the parties before the contract was made, and as such, are properly the subject, of a set-off or may be recovered in a separate action.</p> <p>2. Damages—Measure of—Breach of Contract to Purchase Goods.— Where a person entered into a contract with a manufacturer to purchase a certain quantity of his goods at the lowest jobbing prices, it was held that upon the refusal of the purchaser to select and purchase the goods, the manufacturer became entitled to maintain an action for such refusal and in such action the measure of damages is the difference between the lowest jobbing prices and what it would have cost the manufacturer to make the goods.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Board of Trade—A Private Corporation,—The Chicago Open Board of Trade is a private corporation, organized and existing for the purpose of private gain, and discharging no public function. As such private corporation it may. discriminate as to what persons not members it will admit to its rooms.</p> <p>2. Same—Rights of Members—Customers, —The fact that a person is a member of the open board of trade does not give him the right to require that his customers shall be admitted to its rooms.</p> <p>3. ' Same—Directors May Exclude Persons Not Members.—The directors of the open board of trade have the power to exclude any and all persons not members of the board from the rooms.</p>

<p>1. Injunction—Party Pursuing Sis Legal Rights.—A party pursuing his legal rights, in a legal manner, can not be enjoined on the ground that he is pursuing them from malicious motives.</p> <p>2. Same—Restraining a Suit in Replevin.—-Equity will not interfere by way of an injunction to restrain the taking of property by a writ of replevin, where it is not made to appear by the bill that there is any defense which may not as well be asserted in the suit at law as in chancery.</p> <p>3. Appeal—From an Interlocutory Order Granting an Injunction After a Motion to Dissolve, eta.—A party does not lose his right to take an appeal from an interlocutory order granting an injunction, because his motion to dissolve the injunction and demurrer to the bill have both been overruled.</p>

<p>Replevin.—Appeal from the County Court of De ICc lb County; the Hon. C. A. Bishop, Judge, presiding.</p>

<p>1. Tender—Must Be Kept Good.—A tender must be kept good in order to be available at a trial.</p>

<p>Debt, for rent. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>Action for Violation of an Ordinance.—Appeal from the Circuit Court of Peoria County; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>Mandamus.—Appeal from the Circuit Court of Stark County; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Winnebago County; the Hon. John D. Crabtree, Judge, presiding.</p>

<p>1. Execution Sales—Caveat Emptor.—In sales on execution, the sheriff is invested with a naked power to sell without any authority to warrant. In such sales the rule of caveat emptor applies.</p> <p>3. Same—Imperfect Description of Property in Notice.—An imperfect description of the property in the notice of a sheriff’s sale will not necessarily vitiate the notice, especially where the description is sufficiently certain so that no one is deceived as to the identical property sold.</p> <p>3. Same—Effect of Filing a Bill to Set Aside the Judgment.—The fact that a bill has been filed to set aside a judgment is no ground for a motion by a purchaser at a sale made under an execution issued upon it to set aside the sale.</p>

<p>1. Acceptance—Conditional—Burden of Proof.—Where the acceptance of an order is conditional before the holder can recover upon it, he must show that the condition has been consummated.</p>

<p>Bill to Compel a Railroad Company to Erect and Maintain a Farm Crossing.—Appeal from the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Fraud—Leniency Toward a Creditor is Not.—Indulgence by a creditor to his debtor should not, as a general rule, be construed into an act of fraud on the part of such creditor.</p> <p>3. Consideration—Emancipated Minor—Services for His Father. —Where a minor’s time is given to him and he works for his father, he may recover for his wages, and such services constitute a sufficient consideration for a promissory note.</p> <p>3. Same—In Part Fictitious—When Equity Will Declare Void.— Equity will declare an entire note void where it is given in part for a fictitious consideration, only when it is given with fraudulent intentions as against creditors.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>1. Drainage—Power of the Commissioners to Alter the Boundaries of a District.—Drainage Commissioners have no power, after the original organization of a drainage district, to change its boundaries except under the provisions of section 47-i, chapter 43, R. S. (3 Starr & Curtis, 458), authorizing a dissolution of the district in whole or in part.</p>

<p>I. Replevin—Lies for Goods Obtained by Fraud.—Where a person obtains the possession of goods by means of false and fraudulent representations concerning his means and financial ability, and with the fraudulent intention of not paying for them, an action of replevin on the part of the vendor will be for the recovery of the goods.</p> <p>3. Conveyances—What Does Not Pass—Property Not Attached to Realty.—Where a person receives a conveyance of land with notice that certain property thereon, but not attached to the realty so as to become a fixture, is claimed by a third person, the title of such property does not pass by the conveyance.</p>

<p>Certiorari.—Appeal from the Circuit Court of Jo Daviess County; the Hon. James H. Cartwright, Judge, presiding.</p>

<p>Assumpsit, for services. Appeal from the Circuit Court of Will County; the Hon. DorrancE Dibble, Judge, presiding.</p>

<p>1. Railroads—Liability for Killing Domestic Animals.—Because the owner of a domestic animal permits it to run at large in violation of law, a railroad company is not necessarily relieved from liability in killing it by its train, which is at the time operated in violation of law.</p> <p>2. Contributory Negligence—Allowing Domestic Animals to run at Large.—Whether the owner of domestic animals is guilty of contributory negligence in permitting them to run at large is a question of fact for a jury, to be determined from the circumstances of the case, and it is not sufficient to charge him with contributory negligence, to simply show that, at the time they were killed, they were running at large in violation of law. It must appear that the natural and probable conse-quences of allowing such animals to run at large would be to go upon the railroad track and be injured.</p> <p>3. Ordinances— When Admissible in Evidence.—A village ordinance contained in a printed book of revised ordinances, purporting to be published by authority of the board of trustees, is admissible in evidence under section 65, chapter 34, R. S.</p> <p>4. Same—Sufficient Enacting Clause—When Published in Book Form.—It is sufficient if the first section of the first chapter of a printed book of revised ordinances, purporting to be published by authority, is styled “ Be it ordained by the president and board of trustees of the village of-,” as required by section 187, chapter 24, R. S.</p>

<p>1. Mandamus—Lies to Compel Drainage Commissioners to Act.—The writ of mandamus lies to compel drainage commissioners to repair and modify a drainage system within their district so" as to provide an outlet of ample capacity, into which the lands in the district may be drained and the owners thereof receive, as far as practicable, the protection and benefit contemplated when the district was organized, and to levy an assessment sufficient to pay the cost of the same.</p> <p>2. Same—Discretion as to Details, no Bar.—Where it is the duty of public authorities to make improvements, or to keep in repair improvements already made, mandamus will lie to compel them to perform their duty. Nor does the fact that certain incidents and details of the work are left discretionary with the authorities as regards the manner of their execution, render the duty less mandatory, or constitute a bar to relief by mandamus.</p> <p>3. Drainage Commissioners—When Charged with an Infraction of Duty.—Section 41 of the Farm Drainage Act provides that after the completion of the work the commissioners shall thereafter keep the same in repair; and if they find by reason of error in locating or constructing the ditches, or from other causes, the lands of the district are not drained or protected as contemplated, or some of them receive but partial or no benefit, they shall use the corporate funds of the district to carry out the original purpose, to the end that all lands, so far as practicable, shall receive their proper and equal benefits as contemplated when the lands were classified; and in all such cases, if sufficient funds are not on hand, the commissioners shall make a new tax levy; and charges the commissioners with an imperative duty; and their discretion, if they have any, is not such as bars a mandamus to compel them to act.</p>

<p>Injunction.—Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Fraudulent Conveyances.—A conveyance from a father to his sons, without adequate consideration and for the purpose of hindering and delaying his creditors, is fraudulent.</p> <p>2. Jurisdiction—Circuit Court Over Matters in Probate Court.— The Probate Court has jurisdiction of estates and accounts of administrators. For orders of distribution resort must be had to that court; the Circuit Court can not assume to dispose of a fund which is a part of an estate in the hands of an administrator and in administration in the Probate Court.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Jo Daviess County; the Hon. James Shaw, Judge, presiding.</p>

<p>Application to Restore Lost Records.—Appeal from the Circuit Court of Eock Island County; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>1. Amendments—Power of the Court to Allow at a Subsequent Term. —A court does not lose its powers to grant leave to amend a declaration because two terms have passed since a demurrer was sustained to it.</p> <p>2. Evidence—Efforts to Settle, Inadmissible.—When an unsuccessful attempt has been made by a corporation to effect a settlement with a defaulting official, what the individual members of a committee, appointed for that purpose, may have said while trying to bring about the settlement, is inadmissible.</p>

<p>I. Evidence—Denial of Signature—Ratification.—A 'bank clerk with whom a note was left for collection showed it to a person whose name appeared upon it as a joint maker, and was informed that he never signed it, but that the note was all right. He did not think he ought to pay it but would try to get it out of the principal maker. Held, sufficient to sustain a judgment upon the note under a plea denying the signature.</p>

<p>1. Contracts—Providing that the Title Shall Not Pass.—An agreement for the sale of a brick press providing that the title to and right of possession of said brick press remains vested in the vendor absolutely until the whole of the purchase price is fully paid by the vendee, while valid as between the parties, is void as to third persons without notice.</p> <p>2. Fixtures—When a Brick Press is.—A brick press weighing five and one-fourth tons, actually annexed to the realty by being secured to a foundation of brick walls, with bolts three or four feet long and applied to the uses to which the premises were appropriated (the making of brick), becomes a part of the realty and passes with a conveyance.</p> <p>3. Parties—Who Only are Necessary.—Where the evidence shows that no one but the defendant had any interest in the subject-matter of the suit, he is the only necessary party.</p> <p>4. Practice— FP7io Must Take Defaults.—If a plaintiff desires to have a default taken as to a part of the defendants (they having withdrawn their pleas), or the suit dismissed as to them, he should move for such default on dismissal. The withdrawing defendants are not charged with any duty in this regard.</p> <p>5. Secret Liens—Subsequent Purchasers Without Notice.—A secret lien is not binding upon subsequent bona fide purchasers without notice.</p>

<p>1. Railroads—Care in Running Trains—Absence of a Flagman at Crossing.—Although there is no law requiring a flagman at a railroad crossing, the absence of one may be shown in connection with the amount of travel, on the question of care and caution in running trains.</p> <p>3. Comparative Negligence—Error to Instruct as to.—The doctrine of comparative negligence is no longer the law of this State (Lake Shore & M. S. Ry. Co. v. Hessions, 150 Ill. 546), and it is error to instruct a jury that the liability of the defendant depends upon that doctrine.</p> <p>3. Instructions—Error in Taking Questions from the Jury.—Under a declaration charging that certain things had been negligently done, an instruction which takes this question from the jury is erroneous.</p> <p>4. Same—What Constitutes Gross Negligence.—In instructing the jury, it is error in the court to make a declaration that a certain act is gross negligence.</p> <p>5. Same—Directing a Verdict upon a Single Fact.—An instruction which directs a verdict upon the proof of a single fact, where the proof of other facts is essential to a recovery, is erroneous.</p> <p>6. Same—Damages Not to Exceed the Amount Limited by Statute.— In an action under the statute, providing for the recovery of damages, whenever the death of a person is caused by a wrongful or negligent act, an instruction which tells the jury that they are the sole judges of the measure of damages, and are only limited by the statute, is erroneous, as tantamount to saying, if they can find such a verdict they ought to do it.</p> <p>7. Negligence—Cars upon Side Tracks.—Railroad companies must leave cars to be unloaded, and provide, for the demands of the public, empty cars to be loaded. Side tracks are proper places for such cars, and a company can not be held for negligence in having them there, although they, necessarily, obstruct the view of the road from some points.</p>

<p>Bill to Dissolve a Corporation.—Appeal from the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Assumpsit, for goods, etc. Appeal from the County Court of La Salle County; the Hon. H. W. Johnson, Judge, presiding.</p>

<p>Trespass on the fíase, for negligence in loaning money. Error to the Circuit Court of ICnox County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Will County; the Hon. Charles Bbanchard, Judge, presiding.</p>

<p>Trespass on tlie Case.—Personal injuries. Appeal from the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding.'</p>

<p>Assumpsit.—Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>Garnishment.—Appeal from the Circuit Court of Stark County; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>Forcible Detainer.—Appeal from the County Court of La Salle County; the Hon. H. W. Johnson, Judge, presiding.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Promissory Note—Payable to Husband or Wife.—An instrument in the form of a promissory note payable to a man or his wife, is evidence of a joint contract with both of the payees, and both are entitled to sue jointly thereon. In such an instrument “or” means “ and.”</p>

<p>1. "Verdicts—Upon Conflicting Evidence.—Where the evidence is conflicting, in the absence of error upon the trial, the Appellate Court will not disturb the verdict.</p>

<p>1. Negligence—Questions of Fact.—Where the question is close as to whether there is sufficient evidence of negligence on the part of a city to warrant a jury in finding that a sidewalk was at the time of an injury, etc., in an unsafe condition, and two juries have passed upon it, the judgment will not be reversed for want of evidence.</p> <p>2. Personal Injuries—Visible Defects in Sidewalks.—The fact that a defect in a sidewalk was visible, and could have been seen by the person injured, does not necessarily preclude a recovery for an injury.</p>

<p>1. Witness—Widow as Administratrix of Her Deceased Husband.— A widow, suing as administratrix of her deceased husband upon a promissory note payable to him, is not competent as a witness to testify, in her own behalf, to a conversation between her husband and the maker of the note, tending to show that an indorsement upon the note, which it was claimed took it out of the statute of limitations, was correct.</p> <p>2. Instructions—On a Single Fact. —An instruction directing a verdict upon a single fact, which is not the only fact essential to a verdict, is erroneous, and the fact correct instructions were given for the adverse party does not cure the defect.</p>

<p>1. Payment—Of One Note by Giving Another.—Where a new note is given in lieu of an old one it can not be considered prima facie a satisfaction of the old note unless there is an expressed or implied agreement that such was the intention of the parties.</p>

<p>1. Sureties—On Contractor's Bond not Liable for Materials, etc.—A contractor entered into an agreement with a city to furnish all labor and materials necessary for the construction of a sewer, and also entered into a bond for the performance of the contract. Held, that the sureties upon the bond could not be held for the payment of materials furnished to the contractor for the completion of the work.</p> <p>2. Same—Extent of the Liability.—Sureties are bound to the extent of then- obligation and no further.</p> <p>3. Pleading—Issues of Law.—A plea to a declaration which tenders an issue of law only, is bad.</p> <p>4. Demurrer—When to be Carried Back.—When a demurrer is filed to a plea, and the declaration to which such plea is filed is defective, if the demurrer is sustained to the plea it should be carried back and sustained also to the declaration.</p>

<p>1. Instructions—When Courts Will Not Reverse to Correct Errors —Where it appears that the plaintiff has no right of action and could not have recovered in the trial under any proper set of instructions as to the law. the judgment will not be reversed on account of erroneous instructions.</p> <p>2. Ordinary Care—Drunlcenness.—A person who, by the use of intoxicating liquor, voluntarily incapacitates himself for the exercise of ordinary care for his safety, can not recover for personal injuries which are the result of such intoxication.</p>

<p>Assumpsit.—Money had and received, etc. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>Assumpsit.—On promissory notes. • Appeal from the Circuit Court of, Grundy County; the Hon. Geokge W. Stiff, Judge, presiding.</p>

<p>i. Negligence—A Question of Law.—Where there can be no disagreement among reasonable minds as to the character of an act the question of negligence is one of law, and in such case a court may say, as matter of law, that an act is or is not negligent.</p> <p>2. Same—Duties of Carrier and Passenger.—The duties and liabilities imposed by the relation of carrier and passenger, are questions of .law, but whether there has been a negligent discharge of a duty imposed by this relation, is a question of fact or law upon the same conditions as other questions of negligence.</p> <p>3. Same—Pleadings—Allegations of Duty.—Averments that certain things were duties of the defendant, are of no avail where facts from which the law will create a duty are not stated. The allegation of a duty is a mere conclusion of law, not traversable, and will not sustain a pleading.</p> <p>A Pleading—In Action for Personal Injuries.—A declaration in a case for personal injuries, must show wherein the defendant has been guilty of a breach of duty, and failing to do so is bad on demurrer.</p>

<p>1. Bill of Exceptions—Parties Can Not Extend the Time for Filing by Stipulation.—Parties can not, after the adjournment of court for the term, extend the time fixed by the court for filing a bill of' exceptions. Tire court having then lost jurisdiction can not consent expressly or impliedly to such an arrangement.</p>

<p>1. Legacies—Not Liens Upon Seal Estate, Unless, etc.—A legacy is not a lien upon the real estate of the testator, unless made so by his will.</p> <p>2. Wills—Parol Evidence—When Not Admissible to Explain the Intention of the Testator.—Where there is no latent ambiguity in a will, parol evidence is not admissible to explain the intention of the testator against the construction to be placed on the face of the will, nor can the state of the testator’s property be resorted to for such purposes.</p>

<p>1. Administration of Estates—Settlement of Claims Not Due.— Section 67 of chapter 8, R. S., entitled “ Administration of Estates,” providing that any creditor, whose debt against an estate is not due, may present the same for allowance and settlement, and shall thereupon be considered as a creditor, and receive a dividend of the estate, after deducting a rebate of interest for what he shall receive on such debt, to be computed from the time of the allowance thereof to the time such debt would have become due, according to the tenor and effect of the contract, applies to unconditional contracts for the payment of money-only, and not to contracts so uncertain as to be declared void at any time on default of payment of installments.</p>

<p>1. Verdicts—On Conflicting Evidence Conclusive.—When the evidence is conflicting and the instructions, taken as a series, lay down the law correctly as applicable to the issues, the verdict will be conclusive.</p>

<p>1. Suit in Bar—Filing a Claim in the Probate Court is Not.—An undertaker furnished a coffin, shroud, etc., and took charge of the funeral of a deceased person. He afterward filed his claim in the Probate Court, but finding the estate insolvent brought a suit against the widow and a daughter who ordered the same. Held, that his filing his claim for allowance in the Probate Court did not bar the suit.</p>

<p>Administration of an Insolvent Estate.—Appeal from the County Court of Peoria County; the Hon. E. H. Lovett, Judge, presiding.</p>

<p>1. Statute of Frauds—Contracts Not to be Performed Within a Year.—An oral contract which can not be performed within a year is within the statute of frauds and void.</p> <p>2. Part Performance —Statute of Frauds.—Part performance of a contract is not sufficient to take it out of the operation of the statute of frauds in an action at law.</p> <p>3. Quantum Meruit—Where the Defendant Etas Received Nothing.— The doctrine of a recovery quantum meruit does not apply in cases where the defendant has received nothing.</p>

<p>Assumpsit, on a policy of accident insurance. Appeal from the Circuit Court of Kankakee County; the Hon. Charles B. Starr, Judge, presiding.</p>

<p>i. Judgments—When to be Reversed.—A judgment founded upon a verdict manifestly against the weight of the evidence, will be reversed.</p>

<p>1. Replevin Bond—Effect of, When not Under Seal.—An instrument in the form, of, and intended as a replevin bond, containing the recitals of such a bond with the statement that it was under the hands and seals of the obligors, but not in fact under seal, yet, which filled the office of a replevin bond and secured the execution of the writ, must be held as a contract of indemnity and receive the same construction as a statutory replevin bond for which it was intended.</p> <p>2. Practice—Suit for the Use of Another.—A plaintiff may bring his suit for the use of whom he pleases. It is a matter of no concern of the defendant.</p> <p>3. Attorney Fees—Must be Declared for in the Declaration.— In a suit upon a replevin bond, etc., to recover expenses for attorney fees as damages, the plaintiff must lay the proper foundation for such a recovery by proper allegations in his declaration.</p> <p>4. Replevin—Return of the Goods Awarded—Defendant Bound to Receive a Part.—When, in a replevin suit, a return of the property is awarded, the plaintiff may return a part of the goods, provided they are separable from and in no way dependent upon the others for use or value, and if they are in the same condition as when taken, the defendant will be bound to receive them. Such a return will be a. defense pro tanto to a suit on the bond.</p>

<p>Assumpsit.—Services, etc. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Parent and Child—Action by a Child for Maltreatment.—A child can not maintain an action for damages on account of maltreatment against a parent, whether the relation is by blood or created by adoption under the statute, followed by all the legal consequences and incidents of the natural relation.</p> <p>3. Same—The Relation Can Not Be Created by Agreement.—It is not in the power of the mother and the uncle of a child to create the relation of parent and child between the uncle and child, and put the child in the position of a natural child of the uncle by an agreement to that effect.</p> <p>3. Adoption of Children—Nature of the Proceedings.—Proceedings to adopt a child do not belong to the general jurisdiction of the County Court, nor are they in accordance with the usual form of the common law or chancery proceedings, but are under a special statute, and are to be exercised in a special and summary manner. In such proceedings the record must show upon its face everything that is necessary to sustain the jurisdiction of the court.</p> <p>4. Same—Petition Jurisdictional.—The statute relating to the adoption of children requires a petition by the person desiring to adopt the child and such petition is jurisdictional.</p> <p>5. Same—Order Founded on a Defective Petition Void.—In proceedings for the adoption of children, the statute requires a petition, and without such a petition complying with the statute, the proceedings and orders are void and may be attacked in a collateral proceeding.</p> <p>6. Custody of Children— Violation of Agreements Concerning.— Where a mother left an infant child with its deceased father’s brother, under an agreement that the child should be received into his family and clothed and educated, the uncle necessarily acquired such power of control of the person of the child as was incident to family government, and there can be no recovery for injuries inflicted in the exercise of such rights, but the uncle can not violate the agreement and repudiate its obligations without civil responsibility.</p>

<p>Assessment of Damages, on dissolution of an injunction. Appeal from the Circuit Court of Rock Island County; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>1. Municipal Corporations—No Power to Furnish Electric Lights to Citizens.—Cities and villages have no power under the statute to furnish electric lights to the inhabitants nor to fix rates and collect for such services.</p>

<p>1. Appeals—Freehold Involved in Decree, but Not Assigned as Error. —Where a freehold is involved in the original decree, but not in the points assigned for error, the appeal should be to the Appellate, and not to the Supreme Court.</p> <p>2. Chancery Practice—When Too Late to File a Cross-bill.—Where a party answers a bill for partition, admitting its allegations, and claiming dower and homestead, and the court has decreed partition, assignment of dower and homestead, in accordance with her claim, and after such party has, on the filing of the commissioner’s report, filed a written consent for the sale of the land, and an agreement to take the value of her dower and homestead in money, it is too late to amend her answer and file a cross-bill.</p> <p>3. Saxe—Cross-bill—When to be Filed.—A party debiring to file a cross-bill should do so without delay. When filed after the hearing, and without leave, it is properly stricken from the files.</p>

<p>1. Municipal Corporations—Liability for Failing to Keep Sidewalks in Repair.—An action lies against a municipal corporation on behalf of one who, while in the exercise of reasonable care for his safety, sustains injuries by reason of the negligent failure to perform its duty in keeping its sidewalks in a reasonably safe condition and repair for the use of persons traveling thereon.</p>

<p>Assumpsit, for work, labor and services. Appeal from the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>1. Injunctions—Requisites of a Bill for.—An. injunction should not be granted unless it is charged in the bill by facts that a refusal to grant the writ would work irreparable injury to the complainant.</p> <p>2. Water-Power—When Equity Will Interfere to Prevent an Unreasonable Use of.—Where there is a controversy between the owners of water-power rights growing out of what is claimed to be an unreasonable use of the power by one to the prejudice of the others, equity will not extend its restraining arm until it has been determined by a court of law that the use complained of is unreasonable.</p> <p>3. Same— Unreasonable Use a Question of Fact.—What is a reasonable or an unreasonable use of water is a question of fact, to be determined by a jury from the evidence.</p> <p>4. Surface W aters—Remedy for a Diversion of.—An injunction is the proper remedy to restrain a wrongful diversion of surface waters upon the Jand of another.</p>

<p>1. Beneficiary Associations—Proceedings to Expel Members.—Proceedings of a beneficiary association to expel members are quasi judicial in their character, and where the local body, which under the bylaws of the association constitutes the court, acquires jurisdiction, its judgment pronounced in good faith will be binding.</p> <p>2. Same—By-Laws Which Cover Drunkenness.—A by-law of a beneficiary association which forbids saloonkeepers and saloon bartenders from becoming members, and authorizing the expulsion of members for conduct unbecoming or likely to bring disrepute upon themselves, their families or the craft, or drunkenness, is broad enough to authorize an expulsion for “being a saloonkeeper and a saloon bartender and for drunkenness.”</p> <p>3. Same—Insanity of Member Does Not Believe Him. from His Obligations.—Where there is no claim that a member of a beneficiary association lacked mental capacity to enter into the contract which made him a member of the association, his subsequent mental incapacity can not relieve him from a compliance with its regulations any more than in any other form of contract.</p> <p>4. Insane Persons—Jurisdiction of—How Acquired by Courts.—</p> <p>Jurisdiction of an insane person may be acquired by courts in the same manner as jurisdiction of a sane person.</p> <p>5. Same—Judgments Against—Not tobe Questioned Collaterally.—A judgment against an insane person can not be questioned collaterally; unless set aside by a direct proceeding for that purpose, such a judgment is of undoubted validity.</p> <p>6. Notice—Proof of the Service of.—In the absence of any statute or by-law upon the subject the service of a notice of charges against him, etc., upon a member of a beneficiary association may be proved by oral testimony.</p> <p>7. Records—Becitals of, Construed—Presumptions.—Where a record shows that a question was put to vote and carried by a unanimous vote of seventeen votes, the presumption is that it was carried by a unanimous vote of all the members present.</p>

<p>1. Marshaling of Assets—A Doctrine of Equity.—'The doctrine that firm property shall first be subjected to the payment of firm debts in preference to individual debts obtains only in equity. The law disregards such preferences.</p> <p>2. Partnership—Rights of Creditors.—The right of firm creditors to have the firm assets so marshaled as to satisfy their own debts first can only be worked out through the equities of the partners.</p> <p>3. Same—Rights of Members as to Firm Debts.—Each member of a partnership has an equitable right to have the partnership assets applied in the first instance to the payment of the firm debts.</p> <p>4. Appeals--By Sheriff—From Order of Distribution.■—An appeal lies by a sheriff from an order of the Circuit Court of his county directing him as to the distribution of moneys in his hands among execution reditors.</p>

<p>Assumpsit, goods sold and delivered. Appeal from the Circuit Court of McHenry County; the Hon. R. P. Goodwin, Judge, presiding.</p>

<p>1. Evidence—Failing to Prove That for Which it Was Introduced.— The fact that evidence when introduced fails to prove what was asserted to be its aim. in its introduction affords no reason for refusing in advance to allow questions eliciting it to be asked.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding.</p>

<p>Assumpsit, for goods sold, etc. Appeal from the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>1. Wills—Ademption of Legacies.—Where a legacy is given to a legatee to pay to him the debt of another legatee in the will, and after the execution of the will the testator himself pays the debt, there will be an ademption of the legacy.</p> <p>2. Evidence—Destruction of—Inference from.—The fact that a party litigant in possession of documentary evidence destroys the same, so that it can not be used as evidence, is a circumstance sufficient to throw suspicion upon his case and may be taken into consideration by the court and given such weight as it deserves.</p> <p>3. Witness—What Interest Does Not Incapacitate.—A daughter of a testator is not an incompetent witness upon the question of the ademption of a legacy to her brother in her father’s will, where the legacy, if adeemed, would go to her children under the will.</p>

<p>Mandamus.—Appeal from the Circuit Court of Ogle County; the Hon. J. D. Crabtree, Judge, presiding.</p>

<p>1. Conversion of Goods—Bight toBeturn Before Suit.—One who has converted another’s chattels without changing them in form, or otherwise permanently injuring them, may, at any time before suit, return them in their original condition.</p> <p>2. Same—Bight to Beturn a Part.—Where a person converted to his own use 130 books, and being sued in trover for them he offered to return 105 of them, but the plaintiff refused to accept any of the books unless the entire number of copies was returned, it was held that as each copy was a separate and distinct piece of property he was bound to accept such as were tendered in good condition, and was entitled to recover only for so many as were not so tendered.</p>

<p>Assumpsit, on orders for money. Appeal from the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Appellate Court Practice—New Points in the Bepl-y.—An appellant is required by the rules of this court to make a statement in his brief of the points on which he relies for a reversal of a decree, and the subsequent privilege extends only to a reply to appellee’s brief. Any point not so made by the appellant is regarded as abandoned and can not be made for the first time in a reply, and if made will not be noticed.</p> <p>3. Fraud—Facts Constituting.—A recital of facts and circumstances held to constitute sufficient evidence of fraud is recited in the opinion of the court.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of DeKalb County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>1. Evidence—Competency of Statements by Patients to Their Physicians.—The rule of law as to the admission of statements by patients to their physicians concerning their disease, must be confined to such as are made at the time of the sickness from which the patient is suffering. Statements of such patients after their recovery are not competent.</p> <p>2. Same.—Statements of Claims Against Counties—Competency of. —For the purpose of showing that the law which requires the presentation to the county board of an itemized verified statement of a claim against the county before bringing suit has been complied with, it is competent to read such statement in evidence.</p> <p>3. Same—Physician's Services—Cross-examination.—Where a physician, on his direct examination, testified as to the value of services attending upon small-pox patients, it is not reversible error to allow him on cross-examination, in reply to the question, “ Would you take a case like that out there in the pest house for twice the regular charges ? ” to state that he would not take such a case, outside of his family patients at any figure.</p>

<p>1. Line of Employment—What is in, etc.—Negligence.—The drilling out of unexploded blasts in holes drilled for blasting rock, and which fail to explode, is in the line of employment of a workman who is employed in a stone quarry to do work connected with the blasting of rock; and requiring him to do so, in the accustomed and ordinary manner in which such work is done at the quarry, is not such negligence as renders the owner liable.</p> <p>2. Special Interrogatories—When Not Inconsistent with the General Verdict.—In an action for personal injuries there was propounded to the jury the special interrogatory: “ Did the plaintiff know, at the time he started to drill out the unexploded hole, that it was dangerous, and did he use due care in doing the work while drilling out the hole?” to which the jury answered, “Yes.” This was held to mean that the plaintiff knew it was dangerous, but used due care in doing the work. Also held, that the answer was entirely consistent with the general verdict for the defendant.</p> <p>3. Same—When Consistent with the General Verdict.—A negative answer to a special interrogatory, “ Did the plaintiff voluntarily undertake to drill out the hole containing the unexploded blast, knowing that such work was dangerous ? ” must be construed to mean that the plaintiff did so under the command of the foreman, and so not inconsistent with a general verdict for the defendant, as the defendant would not be liable in that case, provided the command did not incur any danger, new or extraordinary, or outside of any usual hazards of the line of employment.</p>