Volume 62 — Illinois Appellate Court Reports

Mandamus, to compel drainage commissioners to build a bridge. Appeal from the Circuit Court of Iroquois County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the May term, 1895.

<p>1. Sureties—Ora an Attachment Bond Not Liable for Trespasses of the Sheriff.—The obligors in an attachment bond are not liable for trespasses of the sheriff in wrongfully levying the writ upon property of a person against whom the writ is not issued. Such a liability is not within the terms of the obligation.</p>

Trespass on the Case, for damages occasioned by the overflow of water. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the May term, 1895.

Bill for Specific Performance.—Error to the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court on a motion to quash the writ because a freehold is involved.

Petition to Set Aside Order, etc.—Administration of an insolvent’s estate. Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. October 18,1894, the Northwestern Trimming Company, a corporation of which C. G. Boldenweck was president, and Aug. Neff, secretary, made a voluntary assignment to the Chicago Title and Trust Company.

Assumpsit, for services. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This is a casé brought in the Circuit Court of Cook County, Illinois, by Mark S. Leavy to enforce an alleged promise by E. J. Thomas to pay a doctor’s bill, contracted by one Nellie Fraser.

Assumpsit, etc. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1895. Statement op the Case.

Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1895. Statement oe the Case. This action was upon a promissory note, made by appellant, payable to the order of James Miller, four months after date. Appellees are furniture dealers, with their place of business in New York City.

Certiorari.—Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case.

Assumpsit, on a beneficiary certificate.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case.

<p>Assumpsit, on promissory notes. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the October term, 1895.</p>

Bill to Compel a Restoration of Stock.—Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case.

Assumpsit-.—Worb, labor and services. Appeal from the Superior Court of Cook County; the Hon. Jambs Goggin, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. Between 106th and 108th streets the Calumet river takes a northeasterly course.

Replevin.—Error to the Circuit Court of Cook County; the Hon. Ellbridge Haneoy, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. For several years prior to the 15th day of April, 1893, David A. Titcomb and Elbridge S. Pratt, copartners, had been doing business under the name of Titcomb & Pratt, in the city of Chicago. On the 15th day of April, 1893, a deed of assignment was filed with the clerk of the County Court of Cook County.

<p>1. Husband and Wife.—The Wife as Preferred Creditor.—The fact that the husband is in debt more than he can pay, does not prevent him from giving a preference to his wife as one of his creditors.</p> <p>2. Same—Transfers of Property.—Under Section 9, Chapter68, R. S., entitled “ Husband and Wife,” providing that where the husband and wife are living together, no transfer or conveyance between them is valid, etc., unless in writing, and acknowledged and recorded in the same manner as chattel mortgages, no change of possession is necessary.</p> <p>3. Same—Possession When Living Together.—When a husband and wife are living together, no visible.change of possession of property can be made upon a transfer between them.</p> <p>4. Liens—Reserved in a Lease.—An attempt to create a lien upon the goods of a tenant, by a stipulation in a lease to secure the payment of rent, as against a bill of sale of the property legally executed, is a failure.</p>

Bill for Foreclosure.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tüthill, Judge, presiding. Heard 'in this court at the October term, 1895, Statement op the Case.

Garnishment Proceeding.—Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October term, 1895. Statement oe the Oase.

Action for Slander.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1895. Extract from appellant’s abstract showing the circumstances under which, the attachment for the absent witness was refused: Mr. Conover: There is another witness who ought to be here, and we expect some very material testimony from her. She is one of our best witnesses. She has been subpoenaed, but is not here.

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

Transcript from a Justice of the Peace.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case, This case was originally brought before a justice of the peace to recover one month’s rent, being the month of September, 1894, clue by the terms of a certain lease executed by the parties to this suit, amounting to the sum of $150.

Assumpsit, for commission. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. On January 31,1894, appellant and one Joseph E. Putnam entered into a contract, under seal, whereby the parties mutually agreed to convey certain real estate owned by them respectively.

<p>1. Verdict—When Conclusive.—Where the evidence is conflicting the verdict is conclusive.</p>

Transcript from a Justice of the Peace.—Appeal from the Circuit Court of Cook Comity; the Hon. Ellridge Hanecy, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. On May 2, 1892, the plaintiff, Joseph Poitras, entered into a written contract with the defendant, Necter Rousseau, to erect for the latter a building at No. 251 West Congress street, Chicago.

Assumpsit, for money paid, etc. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This was an action brought by Hichael Kramer and Isaac Brooks, appellees, against Horris Abraham, the appellant, before a justice of the peace. On appeal to the Circuit Court, a jury being waived, the cause was tried before the court.

<p>1. Bill of Exceptions— When it Does Not Contain all the Evidence.—When the bill of exceptions does not show that it contains all the evidence, the Appellate Court will not examine into merits of the findings of the court below.</p> <p>3. New Trials—Newly Discovered Evidence.—Newly discovered evidence, which is merely cumulative and not conclusive, is not a sufficient ground for a new trial.</p>

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

Assumpsit, for work, labor, etc. Appeal from the Superior Court of Cook County: the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. On the 11th day of Hay, 1895, judgment was rendered in the Superior Court of Coolc County against the West Chicago Park Commissioners, a municipal corporation, upon a verdict for $576.34, in favor of one W H. Barber.

Assumpsit, goods sold, etc. .Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This suit was brought to recover the sum of $250 by reason of a contract entered into between appellees and appellant, concerning a music box.

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

Statement of the Case. This was an action of replevin commenced before a justice of the peace on the 13th day of December, 1894. The goods were not taken on the writ, and a judgment in trover was had before the justice, and appealed by appellant to the Superior Court, where the case was tried, and resulted in a verdict in favor of the plaintiff for $200, on which judgment was entered, and the defendant brings the cause to this court for review.

Trespass on tuo Case.—Negligence in transmitting telegraph messages. Appeal fi trn the Superior Court of Cook County; the Hon. Arthur H. Chetlai s, Judge,' presiding. Heard in this court at the Octoher term, 1895. Statement of the Case. On August 26, 1891, Hart Bros., a firm composed of Abraham Hart, Henry M. Hart, Jacob Levy and Nathan J. Schwartz, and engaged in the wholesale men’s furnishing goods business in Chicago, Ill., sent to Chas.

<p>Forcible Detainer.—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, 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. Statement of the Case. This is an action by William Wilson to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the West Chicago Street Railroad Company.

<p>1. Trespasser—Removal of Disorderly Persons from. Owner's Premises.—Where a person enters the premises of another and conducts himself in an improper manner, the owner has the right to remove such person from his premises, and in so doing, to use the force neces sary; but if more force is used than is necessary, or if the owner follow up such person, and assault him after he is removed, he will be liable as a trespasser.</p>

Covenant, for rent. Error to the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1895. Statement op the Case. The facts presented in this record are these: Defendant in error leased to plaintiffs in error certain premises for a certain time, at a monthly rental. This suit was brought in covenant for the rent for the months of July, August, September, October and November, 1894.

<p>1. Gambling Contracts— Options to Sell Stoclc.—A contract giving to another the option to sell the stock of an incorporated company at a future time is a gambling contract and void under section 130 of division 1 of the Criminal Code.</p> <p>2. Same—Containing Valid Provisions.—Where a contract, void under the criminal code, contains other provisions which are not, and which are valid, such provisions may be enforced.</p>

Garnishee Proceedings.—Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. Appellee, a citizen of Illinois, sued the Oasey-Grimshaw Marble Company, a corporation of Missouri, by attachment for $572.28. William Grace and Frank D. Hyde, copartners as Grace & Hyde, in Chicago, were summoned as garnishees, the service being on Hyde only.

<p>1. Mechanics’ Liens—Requisites of the Statement.—Section 4 of chapter 82, R. S., entitled “ Liens,” as amended by the act in force July 1, 1887, requires that there be filed a just and true statement, verified by affidavit, setting forth, among other things, the times when the material was furnished or labor performed. A statement lacking in these essentials is insufficient.</p>

Creditor’s Bill,—Interpleader. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. In February, 1894, the Corey Car & Manufacturing Company was indebted to appellant for some §6,300.

Assumpsit, for moneys, etc. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. On the 5th day of September, 1889, Charles L. Currier, appellee, entered-into the following contract with Henry E. C. Peterson, appellant: “ Chicago, September 5,1889.

Bill to Remove Cloud from Title.—Appeal from the Circuit Court of Cook County; the Hon. Thomas Windes, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case.

Assumpsit, for goods sold, etc. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This was an action of assumpsit. Appellants wrote to appellees, offering to buy lumber. In response to this, appellees shipped to appellants various cars of lumber. The following letters and one telegram showed what afterward occurred: “ Chicago, June 12, 1889.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This was an action on the case brought against the appellants by Annis, for injuries sustained May 11, 1892.

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. Statement oe the Case. This is an action by Anthony F. Jennings to recover damages for personal injuries alleged to have been sustained through the negligence of the West Chicago Street Railway Company.

<p>1. Chancery Practice—Setting Aside Interlocutory Decrees. — A court of chancery has authority to set aside an interlocutory decree at a term subsequent to its entry.</p>

<p>1. Chancery Practice—When Exceptions to the Master’s Report Not Necessary.—Where a party against whom a master reports, questions the legal conclusions which the master has drawn from the facts, no exception to the report is necessary. The objection that the adverse party is not entitled to a decree upon the facts reported can be made when the decree is applied for.</p> <p>2. Pleadings—Admissibility of Proof.—Under an allegation of performance, excuse for non-performance is not admissiblé.</p>

Creditor’s Bill.—Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This is a creditor’s bill which seeks to reach property, the legal title to which is in the name of Lizzie M. Murphy, wife of John C. Murphy, the object of the bill being to subject such property to judgments against Mr. Murphy.

<p>1. Insurance—Represen tation s in the Applications. —Representations to insurers before or at the time of making the contract, are a presentation of the elements upon which to estimate the risk proposed to be assumed. They are the basis of the contract, its 'foundation, on the faith of which it is entered into. If wrongly presented in any respect material to the risk the policy that may be issued thereon may not take effect.</p> <p>3. Same—Representations by the Insured.—An applicant for insurance, when asked if any “ board companies ” had canceled them risks upon the property, answered “ No.” This was true, from the fact that no such companies had ever taken risks on the property. Granting that the applicant knew this and the insurer did not, and that the answer was misleading, it was held there was no such false representations as .avoided the policy, as there was no proof that the applicant knew the insurer was misled.</p>

<p>1. Mechanics’ Liens—Gan Not be Established on Separate Buildings En Masse.—A mechanic who. by one single contract with the owner of several separate buildings, each upon separate contiguous lots, engages to, and in pursuance thereof, performs, labor, etc., upon such buildings, is not entitled to one lien for his work upon the entire number of buildings.</p>

<p>Bill for Injunction and Receivers.—Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>Assumpsit, 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>

Debt for Bent.—Appeal from the Circuit Court of Cook County; the Hon. Elbridoe Hanecy, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case.

<p>1. Practice—As to Cases Reversed and Remanded.—When a case is taken to the Supreme Court and reversed and remanded to the court below, it is the duty of the court below to examine the opinion of the Supreme Court and conform its action to it.</p> <p>2. Decrees—Effect of Reversal Upon.—Where a cause is reversed and remanded by the Supreme Court, with no specific directions, it is to be proceeded with, in the court below, as if the reversed decree had never been made. Having been reversed, such decree is in effect expunged from the record.</p> <p>3. Chancery Practice—Evidence Not to be Taken After the Master’s Report.—Where a cause has been referred to the master to take and report the evidence, it is meant that he shall take all the evidence, and it is not competent for the court to hear other evidence when the cause comes on to be heard upon the master’s report.</p>

<p>Assumpsit, for services, 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>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This is an appeal from a judgment for §12,000, rendered by the Superior Court of Cook County, in favor of appellee, in an action on the case.

Attachment or Garnishee Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This action was commenced by Hugh E. Wilson, Milton H. Wilson, Elijah 0.

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

Contempt of Court.—Appeal from the County Court of Cook County; the Hon. Orbin N. Carter, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. On the 18th day of July, 1894, the Southern Hotel Company, a corporation, running the Southern Hotel at the corner of Twenty-second street and Wabash avenue, in Chicago, made a voluntary assignment to Brodie B. Davis.

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

<p>1. Trustees—Temporary Investment of Trust Funds.—Investments in speculative railroad stocks are not within the limit of any correct rule within which equity will require a trustee to keep, with reference to the character of securities, in which he may make temporary investments of unemployed trust funds.</p> <p>3. Same—Not to Make Personal Gains.—A. trustee may sometimes, under peculiar circumstances, and in an open manner, be entitled to make a personal gain to himself out of the trust property, when not done at the expense of his trust, but such instances are rare and exceptional.</p> <p>3. Same—To be Disinterested.—The discretion of a trustee in the matter of determining upon the amount of insurance upon large properties belonging to the trust estate, ought to be freed absolutely from ' every element which might possibly have a tendency to induce him to take into account his individual gain. He can not occupy the dual capacity of trustee and insurance agent.</p> <p>4. Same—To Account to the Estate for Commissions Received,. —Where a trustee, whose compensation is fixed by the will creating the trust, by joining an underwriters’ association, became entitled to receive a commission upon premiums paid by him for insurance upon the property held by him in trust, it was held that the commissions so received by him belonged to the estate.</p> <p>5. Acquiescence—By a Cestui Que Trust—To bind a' cestui que trust, by acquiescence in the acts of a trustee, it is necessary that there should be a free disclosure, by the trustee, of every circumstance material to be known. The cestui que trust can not be said to acquiesce in what he does not know, nor can he be bound by acquiescence unless he is fully apprised of his rights.</p> <p>6. Same—Burden of Proof.—The proof of knowledge of the facts relied upon to establish the acquiescense must be made by the party who relies upon it as a defense.</p>

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

Assumpsit.—Breach of contract. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing. Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This action was brought by John W. Stevenson against the Wolf Maize Mills, a corporation, before a justice of the ' peace for Cook county, Illinois, by whom a judgment was rendered on December 11, 1894, in favor of the plaintiff for $140 and costs.

Mechanic’s Lien.—Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard at the October term, 1895. Statement of the Case. This is an appeal from a decree of the Superior Court establishing a mechanic’s lien in favor of appellee.

<p>Bill for Inj'nnction, etc.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in t'.iis court at the October term, 1895.</p>

<p>1. Verdicts—When Conclusive.—A verdict on conflicting evidence is conclusive.</p>

<p>1. Fraudulent Conveyances—Voluntary and Without ■Consideration.—A voluntary conveyance, made for the purpose of secreting property and without consideration, is fraudulent and void as to creditors of the grantor.</p> <p>2. Same—Rights of the Grantee to Sold Property as Security for Advances.—When a voluntary conveyance of real estate is made without consideration, for the purpose of defeating the creditors of the grantors in the collection of their claims, and the grantee is chargeable with notice of such claims, he can not, as against such creditors, hold the property conveyed as security for advances subsequently made by him to the grantor.</p> <p>3. Fraud—Heeds Without Consideration—Knowledge of the Grantee. —When a voluntary conveyance for the purpose of hindering and delaying creditors of the grantor, is made without any consideration, it is immaterial whether the grantee knew of the object of the grantor, or his purposes in making the conveyance.</p>

<p>Bill to Enforce the Collection of a Decree.—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1895.</p>

Order Appointing a Receiver.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1895, Statement oe the Case.

Receivership.—Intervening petition. Appeal from the Superior C urt of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1895. Statement oe the Case.

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. Statement oe the Oase. This is an appeal by the complainants below from a decree on a bill to foreclose a mortgage on real estate. On March 9, 1881, the appellee James Stinson borrowed of appellant insurance company $15,000, giving as security a mortgage bond and trust deed on the real estate described in the bill.

Bill for Injunction and Belief.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. On October 22, 1894, Richard H. Stephens fíléd his bill of complaint against D. F. Anderson, B. F. Chase, Charles A. Russ, James Barney and the Reid Ice Cream Company, a corporation, praying for an injunction and for other relief.

Bill to Restrain the Improper Use of an Easement.—Appeal from the Superior Court of Cook County; the Hon. Tiíeodore Brentano, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case.

<p>Bill for an Account, 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>

<p>Debt, on a guardian’s bond. 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>

Foreclosure Proceedings, etc.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. The facts of this case are as follows: Anna Bruschke died intestate, possessed of lots 29 and 30, in Oak Grove Addition to Chicago, and leaving two children, Louis and Ecenia, the minor appellees. The property was incumbered by a mortgage to William Troost.

<p>Assumpsit.—Money had and received. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the October term, 1895.</p> <p>Statement oe the Case.</p> <p>This is an action of asáumpsit on the common counts to recover from the defendants, money had and received.</p> <p>The appellants, Lampson Bros. & Co., during the year 1891, and prior thereto, had been doing banking with the appellee, The Illinois Trust and Savings Bank, a,nd in the course of that business on August 17, 1891, there was made up in the office of appellants a deposit slip or memoranda covering items aggregating $94,017.53. These items consisted of currency, checks, and a draft for $10,000 drawn by Lampson Bros. & Co. on the Bank of New York and made payable to J. S. G-ibbs, cashier of the said Illinois Trust and Savings Bank, and were intrusted to Charles Smith, a clerk, then in the employ of Lampson Bros. & Co., who was sent to the bank to deposit the same, but instead of doing this he abstracted the $10,000 draft and obtained in exchange for it a draft of the Illinois Trust and Savings Bank on New York for a like amount payable to the fictitious name of W. H. Martin. This draft he turned over to one Robert E. Whit-taker, who forged the indorsement W. H. Martin, and through the assistance of one W. H. Hagedon, obtained the money on the same and appropriated it to his own use.</p> <p>A jury was waived. The court found the issues for the defendants and the plaintiffs appeal to this court.</p>

<p>Trespass on the Case.—Death from negligent act Appeal from Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Clouds upon Title—Imposing Conditions on Setting Aside.—In setting aside a trust deed upon premises, as a cloud upon the title, the court may impose conditions, upon the maxim that he who asks equity must do equity.</p>

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

<p>1. Statutes—Construction of.—A law providing that the directors of a ship canal and harbor may regulate tolls upon all boats, vessels, steamboats and other craft, used in the transportation of freight and passengers upon such canal, does not authorize a charge of tolls on steam tugs used only for towing purposes.</p> <p>2. Same—Qualifying Words.—In a charter of a harbor and canal company, authorizing the charging of tolls upon all water craft used in the transportation of freight and passengers, it was held that the qualifying words do not mean that such craft shall be used for the transportation of both freight and passengers, but for either.</p>

Assumpsit.—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, Statement of the Case.

<p>1. Conspiracy—Civil Actions for Damages.—A civil action will not lie for a mere conspiracy. It is the damage done in pursuance of the conspiracy which gives the right of action..</p> <p>3. .Same—As a Cause for Civil Actions.—The essence of a conspiracy, so far as it justifies a civil action for damages, is a concert or combination to defraud, or to cause other injury to persons or property which, because of acts done in pursuance of such conspiracy, actually results in damage to the person or property of the person injured or defrauded.</p> <p>3. Same—Not the Gravamen of a Civil Action—Aggravation of Damages—Joint Liability.—In civil actions the conspiracy is not the gravamen of the charge, but may be pleaded and proved in aggravation of the wrong of which the plaintiff complains, and as enabling him to recover against all the conspirators as joint tort feasors.</p> <p>4. Unlawful Combinations—Distinguished from Honest Competition.—Honest competition in business is always permissible,, and it is not easy to draw the line between acts which are but lawful competition and those which are unlawful, because designed to result and actually resulting in an injury to the person or property of a rival, but the line of demarkation is no more difficult of ascertainment than as to the lawfulness or unlawfulness of many other matters of which the law takes note.</p> <p>5. Boycotting—Action Lies for.—An action may be maintained for the malicious interference with the business of another, his occupation, profession, or way of obtaining a livelihood. It is not necessary to the maintenance of such action that there should be any moral turpitude in the act complained of. It lies whenever a damage is occasioned by the wrong done.</p> <p>6. Trespass on the Case—Nature of the Action.—The action of trespass on the case is founded upon the justice and conscience of the case, and is in the nature of a bill in equity. It is a universal remedy given for all wrongs and injuries without force,</p> <p>7. Same—Where it. Lies.—When any consequential damage arises, which could not be foreseen and provided for in the ordinary course of justice, the party injured may bring an action on the case upon a declaration framed according to the peculiar circumstances of his own particular grievance.</p> <p>8. Same— Where it Lies for a Conspiracy.—Whenever, in pursuance of an unlawful combination to defame or injure another in his particular avocation or business, means are employed which tend to effectuate,' and to a greater or less extent accomplish, the object of the conspirators, an action of trespass on the case will lie.</p> <p>9. Punitive Damages—When to be Imposed.—In actions where the gist of the case is the damage that has resulted from the malicious acts of the defendant, punitive damages may be imposed, and the amount of such damages is, within wide limits, a matter of discretion for the jury.</p>

<p>1. Adultery—Charges of—Measure of Proof.—Charges of adultery-must be shown by proof of acts and circumstances that convinces the mind by a preponderance of its weight, and not by mere suspicion or conjecture from vague and indefinite circumstances pointing tono specific time, place or act.</p> <p>2. Same—Presumptions of Innocence.—When adultery is imputed, it must be established by, at least, a preponderance of proof; and when the circumstances relied upon to establish the same, may as well import innocence as guilt, they must be held to import innocence.</p>

Foreclosure of a Trust Deed.—Appeal from the Circuit Court of Cook County; the Hon. Richards. Tuthill, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This was a bill to foreclose a trust deed. The bill was filed by the holder of certain coupon notes only. The holder of the principal note ivas not made a party. A demurrer to the bill was sustained. The following questions are presented : 1.

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Richabd W. Cliffobd, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This is an action by Henry FT. Stoltenberg, as administrator, to recover damages for the death of John Phillips, his intestate, which is alleged to have been caused by the negligence of the West Chicago Street Railroad Company.

Petition in Probate, to have certain policies of insurance delivered to the administrator. 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>1. Corporations—Power of Executive Officers to Bind.—The executive officers of a corporation, with whatsoever power under by-laws as to the usual and legitimate business of the corporation, can not, at least without express authority from the board of directors, bind the corporation by contracts not within the scope of such usual and legitimate business. Necessity does not enlarge their powers.</p> <p>2. Same—Guaranty by Executive Officers—Ultra Vires.—A contract of guaranty made by the executive officers of a corporation, in the absence of express authority from the board of directors, does not bind the corporation.</p>

<p>Trespass on the Case—Personal injuries.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Waiver—Of Tort—Suit in Assumpsit.—Where a check deposited, is treated as a bailment, if the bailees wrongfully convert it into money, the bailor may waive the tort and sue in assumpsit.</p> <p>2. Assumpsit—When the Proper Action.—Where a person is authorized by the terms of a contract to collect money upon a check deposited with him and does so, assumpsit is the proper form of action to recover it.</p> <p>3. Abstracts—When Defective.—The court will not search the record to find out what the abstract ought to show.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. George F. Blanks, Judge, presiding. Heard in this court at the October term, 1895. Statement oe the Case. This is an action by Joseph Walz to recover damages for personal injuries alleged to have been sustained through the negligence of the West Chicago Street Railroad Company.

Mandamus.—To compel a corporation to permit access to its books. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1895. Statement oe the Case.

<p>1. Attorneys—Persons Not Licensed as Such.—A person who is not an attorney has no right to receive fees as such, and can not collect money for legal services.</p> <p>2. Same—Alone Authorized to Receive Attorney’s Fees.—Under an order of the Probate Court allowing a guardian to expend one-third of the amount recovered by his ward in an action for personal injuries in the payment of attorney’s fees for services in such action (without designating the attorneys), a payment by such guardian to a person not a licensed attorney is a violation of the order.</p> <p>3. Equity.—Misapplication of Funds—Power to Follow.—A bill in chancery lies to determine who are the proper persons entitled to receive a fund which the Probate Court has ordered a guardian to pay over to persons entitled thereto, but without naming them; and the fact that the guardian has determined for himself who was entitled to the fund, and paid it over before the filing of the bill, does not affect the question of jurisdiction. Equity will follow the fund,</p>

<p>Bill to Rescind a Sale.—Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1895.</p>

Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Cook-County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1895.

<p>Assumpsit, on a certificate of a beneficiary association. 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>

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. Remarks of counsel complained, of: “ There is only one question, gentlemen, before you—only one, and that is the amount of damages that the plaintiff ought to have.

<p>Assumpsit.—On promissory notes. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>Bill for an Accounting—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>

Bill for Relief.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This is an appeal from the decree of the Circuit Court dismissing the bill of complaint of appellants for want of equity.

<p>Replevin.—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>

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

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

Trespass on the Case.—-Personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1895. Refused special interrogatories referred to in the opinion of the court: The Chicago City Railway Company asked the court also to propound to the jury the following special interrogatories, to wit: Second.

Mechanic’s Lien.—Error to the Circuit Court of Cook County: the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This was a proceeding to enforce a mechanic’s lien, brought by the Marinette Iron Works Company, on September 9, 1891, against the Chicago Smokeless Fuel Gas Company et al.; W. C. Lyman, another lien claimant and now defendant in error, was made a party to the bill.

<p>1. Mandamus—Respondent Must Deny or Allege Facts, etc.—The respondent, in a proceeding by mandamus, must deny the facts alleged in the petition on which the claim of the relator is founded, or set up other facts sufficient inlaw to defeat such claim, stating these facts positively and distinctly. Every intendment is made against returns which do not answer the important facts.</p>

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

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.

Bill for Relief.—Appeal from the Circuit Court of Cook County: the Hon. Thomas G. Windes, Judge, presiding. Heard in this' court at the October term, 1895. Statement of the Case. The bill in this case was filed for the purpose of .compelling a compliance with the obligation of appellants as trustees of a certain fund, the trust in which was admitted by them, but the obligation growing out of the trust denied.

<p>1. Chancery Practice—No Dismissal After Cross-Bill.—Under the provisions of our statutes, a bill in chancery can not be dismissed after the filing of a cross-bill by the defendant.</p> <p>2; Same—Complainant Estopped from Dismissing His Bill, When. —Parties resorting to equity and inviting its administration are not permitted, after the filing of a cross-bill, which prays relief germane to the original, and after being defeated, or anticipating defeat, to retrace their steps and compel a defendant who has filed a cross-bill to again return to the court of law to prosecute the suit from which he was enjoined.</p> <p>3. Courts or Equity—Retain Jurisdiction for All Purposes.—When a court of equity obtains jurisdiction for equitable purposes, it will retain it to give full relief, whether legal or equitable, as to all purposes relating to the subject-matter of the bill, even though it be required to give relief in matters which would not have been proper subjects of equitable interposition if they alone were the original subjects of relief.</p> <p>4. Promissory Notes—Negotiability—When Secured.—The fact that a promissory note is secured by collaterals, does not affect its negotiability.</p> <p>5. Same—When Recitals on, Destroy Negotiability.—A recital upon a promissory note to destroy its negotiability must be of a kind that in some respect qualifies or makes uncertain or conditional the promise.</p> <p>6. Same—When Not Gambling Gontracts.—The fact that a promissory note is given for an interest in a race horse does not necessarily make it a gambling contract. The statute does not prohibit the breeding' or dealing in or running of race horses.</p> <p>7. Same—Gambling Consideration—Innocent Purchaser.—Where the parties to a promissory note, given by one to the other for an interest in race horses, contemplated at the same time entering into a partnership, which they afterward did, for, among other things, racing the horses for money, the consideration of the note was not thereby tainted to the extent of making it void in the hands of an innocent purchaser.</p>

<p>Contempt of Court.—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>

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

Foreclosure, of trust deed. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard at the October term, 1895. Statement of the Case.

<p>1. Appeals—By One Party, Status of Others.—Where an appeal is prayed for and allowed to one party only, no one excepting, such party can be considered as having perfected such appeal.</p>

Debt, on appeal bond. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the October term, 1895. Statement oe the Case. Appellee is the surety on an appeal bond, given by one Jacob Berkson, in an appeal from this court to the Supreme Court. Originally an order of. commitment and warrant issued out of the Circuit Court of Cook County against Berkson for contempt of court.

Petition of Intervening Creditors.—Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. The question in these cases concerns the title to three rolls such as are used in rolling steel rails. Early in May, J 893, the appellee ordered these rolls from the Chicago Foundry Company.

<p>1. Chancery Practice— Verification of Bill After Demurrer.—The effect of a demurrer to a bill is to admit its truth, and the question as to the sufficiency of its verification can not be afterward raised.</p> <p>2. Short Cause Calendar—Construction of Statute.—The statute concerning the short cause calendar is an encroachment upon the general practice, and is not to be extended to cases beyond its terms, or to trials contrary to such terms.</p> <p>3. Same—Effect of Continuances.—By the letter of the short cause calendar act (Hurd’s Statutes, 1895, 1169), a continuance takes the case from the calendar, and the act seems to contemplate that such a calendar is personal to each judge.</p> <p>4. Judicial Notice—Rules of the Court Below.—The Appellate Court does not take judicial notice of the rules of the court below.</p>

Intervening Petition, in the nature of a creditor’s bill. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heal’d in this court at the October term, 1895.

<p>Bill to Remove a Cloud from Title.—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>

Bill to Compel Trustees to Pay an Annuity.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tdthill, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This was a bill to compel the trustees of the will of George Einbecker to pay an annuity in said will provided. The will of George Einbecker, so far as here material, is as follows : “ Fourth.

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

<p>1. Common Carriers—Liability for Non-compliance with Contract. —A consignor of freight directed the carrier to forward a portion of it to the consignor, to places designated by a third party; instead of doing this, the carrier delivered it to such third person, who wrongfully converted it and disappeared. The carrier was held liable.</p> <p>2. Same—Must Obey Instructions, Even When a Volunteer.—When a common carrier is not bound to act in a matter relating to the delivery of goods, in accordance with instructions received from the consignor, if he does act, he will be liable for any loss which may occur by reason of his not obeying such instructions.</p> <p>3. Same—When. Notice Must be Given.—Under the common law, a carrier by water is bound to give notice of the arrival of goods.</p> <p>4. Same—WZien Relieved from Giving Notice.—The giving of notice of the arrival of goods may be waived by contract, and also by the previous course of dealings between the parties, or the uniform custom of the port.</p> <p>5. Corporations—Act by Agents.—A corporation can only act by its agents, the acts of which, within the scope of then- apparent authority, are the acts of the corporation.</p>

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

Bill for Contribution.—Appeal ■ from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This is an action brought in equity by appellants against appellees, for contribution.

<p>Creditor’s Bill,—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>

<p>Assumpsit, for extras, etc. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the October term, 1893.</p>

<p>1 „ Acknowledgment—Certificate Prevails Over Unsupported Testimony.—In the absence of fraud and collusion on the part of the officer taking the same, a certificate of acknowledgment of the execution of a deed, made and taken before a magistrate in proper form in pursuance of the statute, will prevail over the unsupported testimony of the grantor that it is forged.</p> <p>3. Same—Certificate ImpoHs Verity.—A. certificate of acknowledgment, executed in proper form, and in pursuance of the statute, imports verity, and can not be overcome except by clear and satisfactory evidence, or impeached, but for fraud, collusion or conspiracy between the certifying officer and the party claiming under it.</p> <p>3. Burden of Proof—Forged Deed.—The burden of showing that a trust deed is false and forged, is upon the person alleging the same to show not only that he did not sign the deed, but also that lie did not acknowledge the same.</p> <p>4. Deeds—Execution by Grantor.—A person may sign- a deed by another, and so signed the signature becomes his by adoption-, and even though his name is placed upon the deed without his- authority, if he subsequently acknowledges the deed to be his, it will be effectual against him.</p>

Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This is an appeal from the judgment of the Circuit Court of Cook County, dismissing the complainant’s bill for want of equity.

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

<p>Assumpsit, for goods sold. Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in this court at the October term, 1895.</p>

Trespass on the Case, for malicious prosecution. Appeal from the Circuit Court of Cook County; the Hon. George JDriggs, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case. This cause was commenced in the Circuit Court in 1891. The action was brought by Allie J. Hambel to recover damages for malicious prosecution.

<p>1. Pleading—Document Belied Upon, etc.—A document relied upon must be set out in the pleading, either by its tenor or its legal effect. Merely stating that it complies with the law, is insufficient.</p>

<p>Bill for a General Settlement.—Mechanic’s liens. 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>

<p>1. Record—What Composes, in Proceedings by Scire Facias.—In legal proceedings by scire facias, the writ, pleas, verdict of the jury, or finding of the court if the trial is had without a jury, and the judgment, make the whole record, unless there is a bill of exceptions.</p> <p>2. Appeal from Justices—Neglect to Summon Parties not Appealing.—Where an appeal from a justice of the peace is taken by one of two defendants, the neglect to bring in the other defendant by summons is not error, where the parties go to trial without objection.'</p> <p>3. Scire Facias—On Appeal Bonds from Justices.—A bond given upon an appeal from a justice of the peace becomes a part of the record of the court to which the appeal is taken. It may well be contended that no legislation was necessary to warrant a scire facias upon it after a breach of the condition. The writ is a common law remedy.</p> <p>■ 4. Same—Form of Judgment Upon.—It. seems that the form of the judgment upon a scire facias on an appeal bond from a justice of the peace should be, not for a sum of money, but to have execution for the amount of the judgment and costs in the case appealed, as recited in the writ of scire facias, and the costs of the same.</p>

Assumpsit, on bill of exchange. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1895. Statement of the Case.