Volume 63 — Illinois Appellate Court Reports

<p>1. Pleading—Where the Defendant is Sued by a Wrong Name.— Where a defendant is sued by a wrong name in an ordinary action, if he pleads, whether in abatement or in bar, he must not commence his plea with an assumption that he has been before mentioned in the case. If he does so, his plea will be bad on demurrer.</p> <p>2. Same—Premature Bringing of an Action.—The premature bringing of an action may be pleaded in abatement.</p>

<p>1. Bill of Exceptions—Fails to Show that it Contains all the Evidence.—Where a bill of exceptions fails to show that it contains all the ' evidence, the court will presume that there was sufficient evidence not shown by the bill to justify the finding and judgment of the court below.</p>

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

<p>Assumpsit.—Architect’s services. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>1. Notice—Of Acceptance of Guaranty.—Where a guarantor would know from the nature of the transaction, that his offer of guaranty would be accepted, notice to him of an acceptance is unnecessary.</p> <p>2. Same—When Necessary.—Where a proposition is made by one party to guarantee the payment to another, if he will sell goods to a third party, notice of acceptance of the proposition is necessary to create the contract of guaranty.</p>

<p>1. Affidavit—To State Facts and Not Conclusions of Law.—An affidavit read upon a motion to set aside a default on the ground that the party defaulted had a meritorious defense to the action, should state the facts relating to such defense and not conclusions of law.</p>

Assumpsit, by a guest, for loss of goods. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding. Heard in this court at the October term, 1895.

<p>1. Attachment—Personal Judgment on Service of the Writ. —Personal service upon the defendants of a writ of attachment issued in aid of a pending suit, gives the court jurisdiction to render a personal judgment against them.</p>

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

Transcript from a justice of the peace. 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>Garnishee Proceedings.—Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the October term, 1895.</p>

<p>Assumpsit.—Goods sold and delivered. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Heard in this court at the October term, 1895.</p>

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

<p>1. Tobts—Waiver of, Suit in Assumpsit.—Although the act of a party in obtaining the goods of another and converting them into money, or in applying them to his own use, may be tortious, the owner may waive the tort and charge the wrongdoer on the common counts as for money had and received, or for goods sold and delivered.</p>

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

<p>Bill for the Appointment of a Receiver.—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>1. Practice—Right to Address the Jury Absolute.—The right of a party litigant to address the jury by his counsel is absolute.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1895.</p>

Assumpsit, for money paid under duress. Appeal from the Circuit Court of Marion County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the August term, 1895.

<p>Assumpsit, on a policy of insurance. Error to the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the August term, 1895.</p>

<p>1. Foreclosure Proceedings—Taxes Aecniing After Filing Bill.— A decree for taxes paid by a mortgagee and accruing after the commencing of foreclosure proceedings by him, is proper where the mortgage, making it the duty of the mortgagor to pay the taxes, is made a part of the bill, and the prayer is for an accounting and for general and special relief.</p> <p>2. Same—Decrees for Amounts in Excess of that Stated in the Bill. —Where a bill filed to foreclose a mortgage states the amount due at the time, it is not error to include in the decree a greater amount, where the increase is the result of the accumulation during the interval between the filing of the bill and the hearing.</p> <p>3. Same—Who can not Object for Want of Parties.—A mortgagor, defendant in a foreclosure proceeding, can not complain because tenants in possession of the mortgaged premises are not made parties to the decrees where his rights are not injuriously affected by such omission.</p> <p>4 Building and Loan Associations— Cancellation of Stock in Foreclosure Proceedings.—In a proceeding to foreclose a mortgage given to a building and loan association, it is proper to provide by the decree for the cancellation of the stock of the mortgagor where he has been credited with the full withdrawal value of the same in reduction of his indebtedness.</p> <p>5. Foreign Building andLoan Associations—Doing Business in This State.—The act of June 22, 1893, prohibiting foreign building and loan associations from doing business in this State, without first making certain deposits, etc., does not prevent such associations from taking additional security for loans made before the act went into effect.</p> <p>6. Usury—Building and Loan Contracts.—Contracts of building and loan associations are not usurious under the laws of this State, although providing for premiums in excess of the legal rate of interest.</p>

<p>1. Set-off—In Voluntary Assignments.—A creditor of an insolvent banker can not set off an immatured certificate of deposit issued by such banker, in an action against him by the assignee.</p> <p>3. Same—Right not Given by the Statute.—Section 10 of the act of 1877 concerning voluntary assignments, providing that “ any creditor may claim debts to become due as well as debts due, but in debts not due a reasonable abatement shall be made when the same are not drawing interest,” gives no right of set-off where the claim was not due at the time of assignment.</p>

<p>1. Contracts—Construction by the Parties.—A party entered into a contract with a corporation to sell it the output of a coal mine, agreeing to furnish a certain number of car loads of coal per week, at a certain price, to be loaded free on board the cars at the mine. The contract did not state which party should furnish the cars, but as the party buying the output furnished the cars for that portion of the coal which was delivered, it thereby placed a construction upon the contract, and could not afterward object.</p> <p>2. Pleading—Defects Waived—When.—If a party litigant deems the pleading of his adversary defective, he should demur. Defects are waived by pleading a set-off.</p> <p>3. Same—Manner of Amending.—A party amending a pleading should indicate the precise part of it amended, and the place in the plea . where the amendment is to be inserted.</p> <p>4. Same.—Defeats, etc.—When Cured by the Verdict.—When there is any defect, imperfection, or omission in a pleading, whether in substance or form, which would have been fatal on demurrer, if an issue is joined upon it requiring proof of the matters defectively stated or omitted, such defects, imperfections, or omissions will be cured by the verdict.</p> <p>5. Practice—Motion to Dismiss by One Joint Plaintiff.—The denial of an oral motion by one of several plaintiffs in his own behalf, to dismiss the suit, can not be assigned for error.</p> <p>6. Evidence—Admission, by Pleading.—Where a plea of set-off to a declaration upon a contract shows that the defendant has notice of the contract for the breach of which damages are claimed and by his plea duts the same in issue, the admission of such contract in evidence is not error.</p> <p>7. Measure of Damages—Cains and Profits.—Under a contract with the owners to operate a coal mine, pay rent for the use of the mine and machinery and royalty for the coal, the owners contracting to take a certain number of car loads of coal each week, delivered on board cars at the mine at a price fixed by the contract, in case of a breach of the contract in failing to furnish cars to take the coal, the owners will be liable for the gains and profits prevented by reason of such failure.</p>

<p>Petition for a Mechanic's lien.—Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the August term, 1895.</p>

<p>Trespass on the Case.—Death from negligence. Appeal from the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the August term, 1895.</p>

<p>Bill to Foreclose a Mortgage.—Error to the Circuit Court of Wabash County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1895.</p>

<p>1. Guardians—Ap>pointment for Non-Resident Wards.—Under our statute, it is only when a minor is a non-resident that an estate here is necessary to give the County Court authority to appoint a guardian.</p> <p>2. Same—When the Order of Appointment does not Follow the Petition.—An order appointing a guardian of the person and estate of a minor where the petition, bond and letters relate to a guardianship of the estate only, is good in cases relating to the estate and where the guardianship of the person is not involved.</p> <p>3. Same—Order of Appointment— Collateral Attack.—An order appointing a guardian, not void for want of jurisdiction of the court making it, can not be collaterally assailed.</p> <p>4. Same—When Estopped, to Deny the Receipt of Money.—When a guardian receives money as such, irregularities in his appointment or in the receipt of the money are no defense in an action against him individually or on his bond.</p> <p>5. County Court—In Matters of Probate.—The County Court, having full jurisdiction of matters of probate and guardianship, is a court of limited but not of inferior jurisdiction. It is a court of record and its judgments are to be upheld by the same presumptions applicable to the judgments of other courts of record.</p> <p>6. Administration of Estates—Effect of Final Settlement.—Where a County Court makes an order of final settlement of an estate and discharges the executor, such action involves a consideration and approval of payments made by the executor, and if the court has jurisdiction to declare the estate settled, such payments are thereby ratified, but if the court is without jurisdiction, the order is void. The remedy for payments made without legal authority is by an action at law upon the executor’s bond, and not in equity.</p>

<p>1. Pounds—Location of.—A pound located by the county commissioners will continue to be the proper place to impound stock until changed by the proper authorities.</p> <p>2. Same—Fees for Impounding Cattle.—In counties not under township organization a'pound master can only be entitled to charge fees for his services as provided for by the order of the county commissioners.</p> <p>3. Same—Fees, a Legal Liability.—A claim for fees for impounding cattle is based upon a legal liability, and the facts creating such liability must be shown.</p>

<p>1. Insurance—Proof of the Value of Property Destroyed.—The value of insured property as stated in the proofs of loss does not stand for proof of the value of such property on the trial of an action upon the policy. Such value must be shown by other evidence.</p>

<p>Bill to Settle a Partnership.—Appeal from the Circuit Court of Effingham County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the August term, 1895.</p>

<p>1. Appellate Court Practice—No Exceptions in the Court Below. —The sufficiency of the evidence to support a verdict can not be questioned when no exception to the action of the court below, in overruling a motion for a new trial, has been preserved in the bill of exceptions.</p> <p>2. Same—Sufficiency of Pleas.—When a party, instead of abiding by his demurrer, replies to a plea, goes, to trial on the issue thus joined and does not raise the question of the sufficiency of the plea thereafter by duly preserved exceptions to the action of the court in overruling a motion in arrest of judgment (where the question can be raised in this manner after judgment on demurrer) he can not raise the question of such sufficiency in the Appellate Court.</p> <p>3. Practice—Motion in Arrest After Judgment on Demurrer.—After a judgment on demurrer there can be no motion in arrest for any exceptions which might have been taken on the demurrer.</p> <p>4. Same—Plea of Recoupment—General Issue.—It is not error to sustain a demurrer to a plea of recoupment where this defense can be made under the general issue which is pleaded.</p>

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

<p>Action for Rent.—Error to the County Court of Madison County, III.; the Hon. William P. Early, Judge, presiding. Heard in this court at the August term, 1895.</p>

Assumpsit, on a promissory note and for money paid, etc. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the August term, 1895.

<p>1. Partners—Agreements Between, Binding upon Third Persons with Notice.—As between partners, they may agree that one only shall have the authority to settle and discharge debts, and a debtor of the firm, with notice of such an agreement, will be bound by it.</p> <p>3. Settlement—When Fraudulent, not Binding.—A settlement by a debtor of a partnership made with one partner in fraud of the rights of the others can not be sustained.</p>

<p>1. Pbactice—Trial by the Court—No Propositions of Law Submitted.—When the trial is by the court and no propositions of law are submitted, the only question before the Appellate Court is whether or not the evidence is sufficient to sustain the finding and judgment of the court below.</p> <p>3. Same—Failure to File a Plea Denying the Partnership.—The failure by a defendant to file a plea denying the partnership alleged in the declaration, does not conclusively make such defendant a member of tile firm.</p>

Trespass on the Case.—Damages for lands taken, etc. Appeal from the Circuit Court of Perry County: the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the August term, 1895.

Trespass on tlie Case, for lands taken for public use, etc. Appeal from the Circuit Court of Perry County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the August term, 1895.

<p>Mechanic’s Lien.—Appeal from the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the August term, 1895.</p>

Trespass on the Case,' for killing domestic animals. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the August term, 1895.

<p>Trespass on the Case, for personal injuries. Error to City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding. Heard in this court at the August term, 1895.</p>

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

<p>1. Negligence—When Contributory is Not a Defense—If contributory negligence does not tend to cause an injury, it is no defense to an action for the same.</p> <p>2. Railroads—Damage by Fire—Trees Extending over the Right of Way.—A railroad company has no legal right to set fire to combustible material upon its right of way and by so doing burn the limbs of trees standing upon the lands of the adjoining owner, but extending over the right of way.</p> <p>3. Instructions—Must be Based upon Evidence.—An instruction supported by no evidence in the case, is erroneous.</p>

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

<p>1. Briefs—Failure to File—Reversal.—A failure to file briefs on the part of an appellee amounts to a confession of the errors in the record.</p>

<p>I. Instructions—Erroneous, Will Not Always Reverse.—When a judgment for damages to property arising from the construction of a railroad is clearly right under the evidence it will not be reversed for errors in instructions on the question of damages.</p>

<p>I. Trials—Remarks of the Judge.—An objection to the remarks of the court when ruling upon evidence where such remarks applied to the witnesses’ statement of what he was taking into consideration in estimating damages, rather than the amount of his estimate, is not well taken.</p>

<p>Trespass on the Case.—Damages to lands, etc. Appeal from the Circuit Court of Jefferson County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1895.</p>

<p>Trespass on the Case.—Damage'to lands, etc. Appeal from the Circuit Court of Jefferson County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1895,</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Alexander County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the August term, 1895.

Trespass on the Case, for personal injury. Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the August term, 1895.

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

<p>Trespass on the Case.—Death from negligence. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the August term, 1895.</p>

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

Trespass on the Case, for killing domestic animals. Appeal from the Circuit Court of Wayne County; the Hon. Carroll C. Boggs, Judge, presiding. Heard in this court at the August term, 1895.

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

<p>Motion to Quash an Execution.—Error to the Circuit Court of Effingham County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the August term, 1895.</p>

Debt, for the violation of an ordinance. Appeal from the County Court of Jasper County; the Hon. H. M. Kasserman, Judge, presiding. Heard in this court at the August term, 1895.

<p>Action for Deceit.—Appeal from the Circuit Court of Jefferson County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1895.</p>

<p>1. Confession of Judgment—Before Maturity of the Debt.—The confession of a judgment before the debt is due, may be authorized by a proper warrant of attorney.</p> <p>2. Same—When Attorneys May Act Under a Warrant.—When a warrant of attorney expressly authorizes any attorney of any court of record to appear for the maker of a note and confess judgment, the fact that an attorney is a member of a firm of practicing attorneys does not prevent him from exercising the power conferred by the warrant in his individual capacity. In such cases it is immaterial what attorney signs the cognovit so that the confession is within the scope of the power.</p> <p>3. Same—The Question of Attorney Fees.—The question of attorney fees can not be raised by the maker of the notes upon which the confession is had.</p>

<p>Trover.—Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the August term, 1895.</p>

<p>Proceedings in Bastardy.—Error to the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the August term, 1895.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. B. H. Canby, Judge, presiding. Heard in his court at the August term, 1895.

<p>Trespass on the Case.—Death from negligence, etc. Error to the Circuit Court of Effingham County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the August term, 1895.</p>

Assumpsit, for moneys expended on building approaches to a highway crossing. Appeal from the Circuit Court of Lawrence County; the Hon. Silas Z. Landes, Judge, presiding. Heard in this court at the August term, 1895.

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the August term, 1895.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the August term, 1895.

<p>Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neeley, Judge, presiding. Heard in this court at the March term, 1896.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the March term, 1896.

<p>1. Contracts—By Brokers—Bought and Sold Notes.—A contract made through a broker, commonly known as a bought and sold note, is one recognized by the law and regarded by the courts as the parties intend it.</p> <p>2. Same—Unaccepted Proposition to Alter.—X proposition by one party to a contract to make a change in it is ineffectual to alter it unless accepted by the other party.</p> <p>3. Practice—Effect of Pleas Not Verified.—In a suit upon a written instrument where there is no plea verified as required by Jaw denying its execution, such instrument must be taken as stating the contract between the parties.</p> <p>4. Interest—On Damages Sustained.—It is not error to instruct the jury in an action for damages, sustained by reason of a breach of contract, tliat the plaintiff is entitled to interest on whatever damages he has sustained.</p>

<p>1. Appellate Court Practice—When a Decree loill be Affirmed.— Where there is nothing in an assignment of errors which questions the action of the court upon the exceptions taken to the master’s report, upon which report the decree is founded, the decree will be affirmed.</p> <p>2. Equity Practice—Exceptions to Master's Report.—Exceptions to a master’s report which are of that general character, requiring a search through the whole evidence to determine whether they are well taken, are unavailing. McMannomy v. Walker, 63 Ill. App. 259.</p>

<p>1. Promissory Note—Payable to Maker's Order.—The title to a promissory note, drawn payable to the order of the maker, and indorsed and delivered by him, passes by delivery. 61 Ill. App. 32.</p>

<p>1. Probable Cause—What Constitutes.—All that is required to constitute probable cause for suing out an attachment and levying the same upon the goods of another is an honest belief, or strong ground of suspicion, and a reasonable ground of the belief or suspicion, and this may be upon information from others, as well as personal knowledge.</p> <p>3. Same—As to Joint Tort Feasors.—Several persons may act upon information worthy, apparently, of unhesitating belief, and fully believed by all but one of such persons, who may have such other information which he dare not'disclose, as takes from him the protection of probable cause.</p> <p>3. Malice—Abuse of Legal Process.—Abusing the process of the law, to the injury of another, is of itself malicious.</p>

<p>1. Equity Practice—When the Master has not Followed the Terms of the Reference.—If a master to whom a cause is referred does not follow the terms of the reference the remedy is not by excepting to his report but a special application should be made to the court for an order to have the irregularity corrected.</p> <p>2. Same— When the Report is Right upon the Facts but Wrong upon the Raw.—If the master has reported the facts correctly, with a wrong legal consequence, no exception is necessary. The question may be raised without taking exceptions to the report.</p> <p>3. Same— When the Master's Conclusions of Fact are to be Questioned.—If the master’s conclusions of fact are to be questioned exceptions to his report must be taken.</p> <p>4. Same—Talcing of Accounts.—If accounts to be taken in the course of a chancery suit are difficult or complicated they must be referred to a master, not because of any statute but by usage and practice, and the master must report his conclusions thereon. The parties can not put their labor upon the court, and if the court assumes the labor it is error. If done by stipulation of the parties the decree will be affirmed without examination.</p> <p>5. Same—Practice in Stating Accounts.—The master should require the parties first to state their own accounts so that the evidence may be confined to disputed items; in some cases the court will order an account ro be prepared by a party complainant with his bill, so that the proceedings shall be in reasonable form in case of an appeal.</p> <p>6. Same—When the Account is Stated—Proceedings Before the Master.—The master having stated the account, and given notice to the parties that he has prepared a draft of his report, either party may, before the master, object to any conclusion of the master. If the master adheres to his conclusions the party may renew his objections, as exceptions before the court, to the same conclusions.</p> <p>7. Same—Exceptions, When Overrided by the Master.—When objections to the conclusions of the master are disallowed, if the objecting party desires it the master must report to the court the exceptions disallowed and state specifically all the evidence relating thereto, and upon which such conclusions were reached, when such exceptions will stand for hearing before the court. '</p> <p>8. Same—Report to be Received as True if no Exceptions are Talcen.— It is not the province of a court to investigate items of account. The report of the master is to be received as true when no exception is taken; and exceptions taken are to be regarded so far only as they are supported by the special statements of the master, or by evidence which ought to be brought before the court by a reference to the particular testimony on which the exceptor relies; for otherwise the court will not wander at large into the evidence in order to ascertain whether, by possibility, the master was wrong in his conclusion or not.</p> <p>9. Same—Province of the Court—Report of the Master.—It is too much to ask of the court to grope through vast masses of testimony in search of error wíiich is alleged to exist somewhere, and by connecting the accountant with the judge to ascertain what the error is; it was the duty of the dissatisfied party to except to such items as he considered improperly charged, and it would then have been the duty of the master to certify the evidence by which the disputed item was sustained.</p> <p>10. Statutes Construed—Chancery Practice.—Section 39, chapter 22, R. S., entitled ‘ ‘ Chancery,” providing that the court may upon default, or upon issue being joined, refer a cause to a master in chancery or special commissioner to take and report evidence, with or without his conclusions thereon, has no relation to taking accounts.</p>

<p>Foreclosure Proceedings.—Error to the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Final Order—What is not.—An order of court adjudging a resident of another State in contempt, that he appear for punishment and that a warrant issue forthwith to bring him before the court, is not a final order.</p>

<p>1. Redemption—The Right is Absolute.—Section 18, Chapter 77, R. S., entitled Judgments, Decrees and Executions, gives the right of redemption from judicial sales of real property, and no person can be deprived of such right against his will.</p> <p>2. Same—Sow Effected.—A person entitled to redeem has an absolute right to deposit the proper redemption money with the officer who made the sale, and having done so, the redemption is effected, but such deposit must be made within the time allowed by the statute for redemption.</p>

<p>1. Statutes Construed—Return of Legal Process. —The meaning of the words “ returnable at the next term,” in Section 8, Chapter 62, R. S., entitled “ Garnishment,” is the next term to begin in not less than ten days.</p> <p>2. Garnishment—Personal Service of Scire Facias Imperative.—Personal service of a scire facias upon a garnishee is imperative in order to authorize a final judgment against him.</p> <p>3. Attachment Bond—Defective, Does Not Render the Proceeding Void.—An attachment bond being amendable under Section 28. Chapter 11, R. S., entitled “ Attachments,” no defects in it will render the proceeding void.</p> <p>4. Attachments—What Defects May be Urgedby a Garnishee.—It is a general rule that anything amendable is not void, and it is only defects in the proceedings against the original defendants in attachment proceedings which render them void, that garnishees may urge.</p> <p>5. Waiver— Of Errors Assigned.—Where a matter is assigned as error, but is not mentioned in the brief of the party assigning it, it will be considered as waived.</p> <p>6. Abstracts—Observance of Rules Relating to, Required.—This court, owing to the amount of business before it, requires the observance of the rule as to abstracts.</p>

<p>1. Husband and Wife—Husband’s Obligations Pending Divorce Proceedings.—The husband is under obligation to maintain his wife pending proceedings for divorce instituted by her, but it does not follow if he is unable to do so he can be confined in jail because of his failure.</p> <p>2. Contempt of Court—Husband in Default of Paying Alimony.— Although a husband, defendant in a proceeding for divorce, is ordered by a court to pay alimony, it is not a contempt to fail to pay, if, without fault, he is unable to do so.</p>

<p>1. Equity Practice—Remedy at Law— Waiver of the Bight to Object. —When a general demurrer to a bill in chancery, for an account, is overruled, and the defendant answers, and not only says nothing about the remedy being at law but prays for a money decree in his own favor, objection to equity jurisprudence is waived.</p> <p>2. Same—Objections to the Master’s Beport.—Where the report of the master does not follow the directions of the submission, objections must be made in the court below by an appropriate motion.</p> <p>3. Exceptions to the Master’s Report—Must be Specific.—Exceptions to the report of the master must be specific and must point out the evidence upon which they are based. McMannomy v. Walker, 63 Ill. App. 259.</p>

<p>1. Bules of Court.—Consequences of a Non-compliance icitli.—For a want of compliance with the rules of this court relating to the filing of briefs and abstracts, the judgment of the court below will be affirmed. .</p>

<p>1. Trials—In Criminal Cases Without a Jury.—A court has jurisdiction to try a person for a misdemeanor without a jury.</p> <p>2. Practice—Exceptions in Criminal Cases.—Exceptions must be taken by a person on trial for crime, or mere irregularities will be waived. The same rule applies as in civil cases.</p> <p>3. Waiver—Of Rights by Persons on Trial for Crime. —A prison er on trial has no right to stand by and suffer irregular proceedings to take place, and then ask to have the proceedings reversed on error on account of such irregularities. The law allowing him counsel to defend him, has placed him on the same footing as other defendants, and if he neglects in proper time to insist on his rights he waives them.</p> <p>4. Presumption—In Favor of the Regularity of Legal Proceedings. —Where a court has jurisdiction of the person of the defendant and of the subject-matter, it is presumed to have proceeded regularly in all it has done, and unless sufficient cause is shown in the record to rebut the presumption, its judgment must be affirmed.</p>

<p>Indictment.—Obtaining money by false pretenses. Error to the Criminal Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Conspiracy—What is Indictable.—It is indictable for two or more persons to conspire to do an unlawful act by any means, and also to conspire to do any act by unlawful means.</p> <p>2. Same—Gist of the Offense.—The purpose in view in forming the conspiracy, does not constitute the offense. The purpose being unlawful, the conspiracy formed to effect it becomes itself unlawful and is indictable and punishable.</p> <p>3. Same—-Requisites of the Offense.—Many acts which, if done by an individual, are not indictable, are punished criminally, when done in pursuance of a conspiracy by two or more persons.</p> <p>4. Merger—In Criminal Offenses.—There can he no merger of a conspiracy in the offense of obtaining money by false pretenses. Both offenses are misdemeanors, punishable either by fine or imprisonment, or both, and in such cases there can be no merger.</p> <p>o. Evidence—In Criminal Cases.—Any evidence which tends to prove the issue is competent, notwithstanding it maybe injurious to the defendant and may tend to prove distinct offenses against him.</p>

<p>Trespass on the Case.—Death from negligent act. Error to the Su perior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Sheriff’s Return—Requisites of, as a Basis for Equitable Remedies.—In order for a sheriff to return an execution before the day which limits its life so that a foundation may be laid for the prosecution of equitable remedies based upon an exhaustion of legal remedies, such return must show upon its face, or by clear inference, that it is his own act.</p> <p>3. Same—Presumptions in its Favor.—In the absence of proof or clear implication to the contrary, it will be presumed of a return made upon the responsibility of the sheriff, that he has performed what the statute requires of him as a preliminary to making a return before the expiration of the execution.</p> <p>3. Same—When the Presumption does not Prevail.—No presumption prevails in favor of a sheriff’s return when the same is made by the direction of the plaintiff in the writ, or where, by the substance of the return, it can not be seen that he was unable in the discharge of his official duty to find the property of the debtor.</p> <p>4. Garnishment—Requisites of the Sheriff’s Return.—An officer’s return to an execution by order of the plaintiff’s attorneys is not a sufficient return upon which to base garnishee proceedings.</p>

<p>1. Abstracts—Improperly Prepared.—The court can not undertake to prepare proper abstracts or to search through the record for that which, because relied upon, should be abstracted.</p>

<p>1. Voluntary Assignment. — Publication of Notice.— A notice under section two of the act concerning voluntary assignments, notifying creditors to present their claims within three months thereafter, must be published on the day of its date.</p> <p>2. Same—Judgments Confessed After the Assignment.—A judgment entered by confession against an insolvent after an assignment by him for the benefit of his creditors is not provable as a claim against the estate without evidence that the debt for which the judgment was confessed existed at the time of the assignment.</p> <p>3. Same—When Claims Filed are to be Accepted—Who May Except. —The theory of the statute concerning voluntary assignments, is that all claims presented to the assignee are to be accepted as just, unless some person interested as creditor or otherwise excepts, and no mere volunteer can come in as amicus curice and except.</p> <p>4. Same—Rights of Creditors to Except to Other Claims.—A person who has a claim as a creditor of an insolvent has a standing in court, for the purpose of filing exceptions to other claims, during the thirty days within which exceptions are to be filed.</p> <p>5. Same—Hearing of Exceptions—Burden of Proof.—On the hearing of exceptions to a claim, the burden is upon the claimant to show that his claim is just. Though the statute is silent as to the burden of proof, the principle that dictated Sec. 60, Ch. 3, R. S., entitled “Administration,” applies.</p>

<p>Assumpsit.—Goods sold. Error to the Circuit Court of Cook County; the Hon. Charles G. Neeley, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Notice—To Agents of Corporations.—A notice properly served upon an agent who is the manager of a corporation is notice to the corporation.</p> <p>• 2. Misnomer—In Writs—A misnomer in a writ served upon a defendant does not render the writ void.</p>

<p>Covenant on Sealed Contract.—Error to the Circuit Court, Cool" County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>Scire Facias, on appeal bond.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Actions—An Entire Cause of, can not be Divided.—An entire cause of action can not be split and several actions maintained upon it.</p> <p>2. Same—What is not an Entire Account.—A running account with no time of payment for any item in it, agreed upon, is an entire cause of action; but where each item of the account is sold upon stated periods of credit, the rule is different. Each item then constitutes a separate cause of action which may be commenced and maintained as soon as the time of credit expires.</p>

<p>Proceedings under the Act Relating to Voluntary Assignments.— Error to the County Comt of Cook County; the Hon. Orrin H. Carter, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>Bill to Enforce a Mechanic's Lien.—Error to the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1896.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the March term, 1896.

Two Cases.—(1) Application to vacate judgment. Error to the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. (2) Bill for injunction and relief. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1896.

<p>Debt, on foreign judgment. Error to the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Injunction—Landlord and Tenant.—A landlord is entitled to an injunction to prevent the violation by the tenant of a restriction upon the use of the demised premises, although the term for which the premises were demised has nearly expired.</p> <p>2. Same—Purpose of an Interloautory Injunction.—The only purpose of an interlocutory injunction is to protect the complainant until the merits of the case can be determined. If he can have no relief at the hearing he can have no interlocutory injunction.</p> <p>3. Same—Issued Without Notice.—An injunction issued without notice and with no showing that cause for so doing existed, under section 3, chapter 69, R. S., entitled “ Injunctions,” is properly dissolved.</p> <p>4. Equity Practice—Insufficient Verification of a Bill.—Where a complainant swears that heknows the facts stated in his bill, and that all and each of said facts are true,” the verification is a nullity.</p> <p>5. Appeals—From an Order Dissolving an Injunction.—An appeal does not lie from an order dissolving an injunction. Taylor v. Kirby, 31 Ill. App. 658.</p>

<p>Bill for Belief.—Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Presumptions—In the Absence of a Complete Record.—In the absence of what purports to be a complete record, the presumption exists, and must control, that the omitted parts of the record furnish sufficient grounds to support the decree.</p> <p>2. Amendments—Certificate of Evidence at a Subsequent Term.—An amendment of a certificate of evidence incorporating evidence alleged to have been omitted from the original certificate, should not be allowed at a term subsequent to that at which the trial was had, unless there is something in the record to amend by.</p> <p>3. Records—When Insufficient to Warrant a Reversal.—A transcript of a record certified pursuant to a praecipe signed by counsel, directing the clerk to insert certain papers, is not complete and is insufficient to justify the reversal of a, judgment of a court of competent jurisdiction.</p> <p>4. Evidence—Direct an d Cross-Examination—Controlling E "eight. — Where a complainant in á divorce case testified positively that she resided in Cook county at the time she began her suit, but on cross-examination, to the question, “Your home is in Lake county, where you lived with your husband?” she answered, “Yes,” it was held that the affirmative answer to a question in such words was not to be given controlling weight as opposed to her direct testimony.</p>

<p>1. Fraud—Representations as to a Legal Effect.—A false representation as to the legal effect of a contract is not a fraud in law.</p> <p>2. Foreclosure—Partial Releases—Tender After Default.—Under a trust deed, conditioned that the whole debt secured might be declared due and the deed foreclosed upon thirty days default in the payment of interest, taxes, etc., and containing a provision for partial releases, a tender to obtain such a release pendente lite, forty-five days after a bill to foreclose, and while grantors were in default in .the payment of interest, taxes, etc., is unavailing.</p> <p>3. Equity Practice—Exceptions to the Master’s Report.—Exceptions to the master’s report must be specific and point out the evidence upon which the conclusion excepted to is based. McMannomy v. Walker, 63 Ill. App. 259.</p> <p>4. Solicitor’s Fees—In Foreclosure Suits.—Under a trust deed providing for “ a reasonable solicitor’s fee to be fixed by the court,” in fixing such amount, the examination should be directed to what is customary for such legal services where contracts have been made with persons competent to contract, and not what is reasonable, just and proper for the solicitor in the particular case. The inquiry should be, not what an attorney thinks is reasonable, but what is the usual charge.</p>

<p>1. Lease—Terminated by Judgment of Restitution—Responsibility of Guarantor.—A judgment of restitution in a suit of forcible detainer for the possession of leased premises puts an end to the lease, and a guarantor on the lease is not responsible for rent accruing after such termination.</p>

Assumpsit, for balance due withdrawing stockholder. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1896.

<p>Bill to Redeem, etc.—Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Ambiguities—Latent, Appearing in Instruments.—Where a latent ambiguity appears in a certificate of a fraternal beneficiary association as to the beneficiary intended, and an attempt is made to identify such beneficiary, the testimony of the person who drew the application for membership in such association is admissible to show the circumstances under which the certificate was made, but testimony as to what the deceased member, after the making of the certificate, said as to his intentions is not.</p>

<p>Bill for Relief.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>Replevin.—Appeal from the County Court of Cook County; the Hon. Orrin H. Carter, Judge, presiding. Heard in this court at March term, 1896.</p>

Trover, for so much money converted. Appeal from the Superior-Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1896.

<p>1. Bill of Exceptions—Should Shoio What Was Excepted to.— When a bill of exceptions states “ exception” or “exception by plaintiffs,” etc., without particularizing what is excepted to, the court will not undertake to supply the omission.</p>

<p>1. Waiver—Of Strict Bights Under Chattel Mortgage.—Where the mortgagee agrees that the mortgagor may have an extension of the indebtedness, and make payments thereon to suit his convenience, and payments are so made and accepted subsequent to the maturity of the indebtedness, such facts amount to a waiver of the strict rights of the mortgagee to claim the property, either because of a default in the mortgage or otherwise.</p> <p>3. Chattel Mortgage—Sales Under.—Under a power of sale in a chattel mortgage authorizing the mortgagee, in case of default, to sell the property at public or private sale, the mortgagee can not sell the mortgaged property with a large quantity of other property in bulk for a lump sum.</p>

<p>1. Instructions—To Find for the Defendant.—Where the testimony raises a question of fact, it is error to instruct the jury to find for the defendant.</p>

<p>Bill for Belief and Injunction.—Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Performance of Entire Contracts.—An agreement to serve another for twelve months is an entire contract, and a substantial performance of it must be shown before a recovery can be had upon it.</p>

<p>1. Mechanic’s Liens—To What They May Attach—A mechanic’s lien may attach to the proceeds of property to which the Jien had attached, after the property is no longer accessible.</p>

<p>1. Equitable Assignment—What is.—The court states a transaction between parties and holds it to be an equitable assignment.</p> <p>2. Rents—Accruing During the Statutory Period of Redemption.— Where a decree of foreclosure has been fully satisfied by a sale of the mortgaged premises and without any application of the rents (possession of the premises having been turned over to avoid the appointment of a receiver), all the rents received from the premises prior to the expiration-of the period for redemption belong to the mortgagor, and. he may have his action therefor in assumpsit as for money had and received, and his creditors may reach the same by a creditor’s bill.</p>

<p>Bill for Divorce.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Burden of Proof—Suit on Constable's Bond.—When a suit is brought upon a constable’s bond for a failure to return an execution, the burden of proof is upon the plaintiff.</p> <p>2. Evidence—Justice's Entries.—The statute does not require the justice to make any record or certify or include in a transcript anything concerning the failure of a constable to return process, and if he does make such a record it is not evidence against the sureties upon the constable’s bond.</p>

<p>1. Pleading—Defense of Gambling.—A plea setting up the defense of gambling must not be ambiguous.</p> <p>2. Same—Ambiguous Averments. —The words ‘ ‘ in which speculations it was mutually understood ” are not in the language of pleading, and fall short of alleging a distinct and express contract between the parties.</p>

<p>-■ Administration of Estates. —Probate of claim. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>Trespass on the Case.—Death from negligent act. Error to the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge presiding. Heard in this court at the March term, 1896.</p>

<p>Bill for an Injunction,—Error to the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. By-Laws—Members of Associations Bound by.—A person who of his own will and accord becomes a member of the Board of Trade, voluntarily agrees to be bound by its rules and by-laws.</p> <p>2. Same—Rights of Members in Trials Under.—A member of the Board' of Trade has a right to a trial upon charges against him as such member, the proceedings of which are not repugnant to natural justice, but this does not include a right to be defended by professional counsel.</p> <p>3. Same—Denial of the Right to be Defended by Counsel.—A by-law of the Board of Trade, providing that in investigations before the board of directors, or before any committee of the association, no party shall be allowed to be represented by professional counsel, is not invalid.</p>

<p>1. Error and Appeal—From Final Orders.—A writ of error does not lie until there is a final decree as to the matters in controversy.</p>

Mandamus, to compel the issuing of a saloon license. Error to the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the March term, 1896.

<p>1. Contracts—Declaration that a Patty will not Fulfill—Suit.— Where a contractor, before the day of performance, declares that he will not fulfill, the other party may take him at his word and at once bring suit for a breach of the contract.</p>

<p>Bill for Belief.—Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1. Ratification—By Corporations.—Ratification by a corporation of a contract made in its name, whether sealed with its corporate seal or not, will be implied by the acts of the corporation, and will be inferred from facts and circumstances as in the cases of individuals.</p> <p>2. Ultra Vires—Estoppel to Assert.—Where a corporation enters into a contract in excess of its powers, but enjoys its benefits, it will be estopped to appeal to the limitations imposed by its charter for the purpose of escaping payment of the stipulated consideration.</p> <p>3. Same—What is Not.—The renting of premises to be used as a beer saloon, is not in excess of the corporate powers of the National Brewing Company, as expressed in its articles of incorporation, “to engage in the manufacture and sale of lager beer and other fermented liquors, and malting.”</p>

<p>1. Abstracts—When Insufficient, Judgment Affirmed.—Where the abstract fails to show that any judgment was entered, or bill of exceptions made, the judgment will be affirmed.</p>

<p>1. "Voluntary Assignments — Publication of Notice.—Section 2, chapter 10a, R S., entitled, “ Assignments,” providing that notice to creditors to present claims shall be given by publication in some newspaper published in the county, etc., and which publication shall continue at least six weeks, is met by a notice having been published for six successive weeks.</p> <p>2. Same—Sufficiency of Publication.—A. notice under section 2, chapter 10a, R S., entitled “ Assignments,” published the first time on the day it is dated and being published “ six successive weeks, to wit, six times,” is the same as to say that it was published once in each week for six successive weeks, which is all the statute contemplates.</p>

<p>1. Replevin—Where it Lies.—Replevin lies only against one from whose possession the sheriff can take the property, and to whose possession it can be returned if a return is awarded.</p> <p>2. Same—After a Forthcoming Bond is Given.—The lien of an execution remains upon personal property levied upon and retained by the defendant under a forthcoming bond but replevin does not lie against the officer holding the execution after the bond is taken.</p> <p>3. Abstracts—No Fees Where the Whole Record is Printed.—When the appellant prints the whole record instead of making and printing an abstract he will be allowed no fees for printing it.</p>

<p>Bill of Interpleader.—Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the March term, 1896.</p>

<p>1, Commissions—Requisites of the Action.—A real estate broker irf¿2£ order to recover his commissions, must show that he secured a purchaser who was ready, able and willing to buy.</p>

<p>1. Bills of Review—Leave to File.—Leave to file a bill of review is not of right but of discretion.</p> <p>2. Same.—For Newly Discovered Evidence.—The application for leave to file a bill of review for newly discovered evidence is analogous to a motion at law for a new trial for the same cause. It would seem that the same principles should apply and the petition should be supported by affidavits of the witnesses by whom it is proposed to prove the facts relied on or some excuse for not obtaining them.</p> <p>3. Same—Practice as at Law.—On a bill filed for a new trial at law, the court of chancery acts as a court of law would upon such a motion.</p>

<p>Trespass on 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 March term, 1896.</p>

<p>1. Sales—To Creditors by Persons in Insolvent Circumstances.—A sale of his goods by an insolvent merchant to a creditor is valid as between them and such insolvent may lawfully prefer a creditor to the extent of his claim and pay him in goods at a fair price, however it may affect his other creditors or whatever may have been his intention known or unknown to such creditor.</p> <p>2. Debtor and Creditor—Sight to Prefer One or More Creditors.— A debtor may indulge his preferences among his creditors and so pay some or only one, although he knows the effect must be to hinder, delay or defeat the others and deliberately intends to produce such effect. The creditor so preferred may lawfully receive it although fully aware of the effect and apprised of his debtor’s intention as to others, provided only that he takes it in good faith as payment of his debt.</p> <p>3. Fraudulent Sales— Void as to Creditors—Vendee Not Protected. —A purchaser of goods from an insolvent person with knowledge that the effect of his purchase is to hinder and delay the creditors of such person and that such was his intention in making the sale, though for cash and at a fair price, can not hold it against the creditors of the vendor.</p> <p>4. Same—Fraudulent as to Part—So as to All.—Where the property transferred by a debtor in failing circumstances is divisible into parts, one part having no necessary connection as property with the other, and a creditor takes one part in payment of his debt and purchases the other for cash or some other valuable consideration paid or agreed to be paid, such creditor takes the latter part of the property as a purchaser, and having taken both parts by one and the same contract, if the transaction is fraudulent as to either part, it is so as to both.</p>

<p>Attachment Proceedings.—Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the May term, 1895.</p>

<p>• 1. Sureties—Released by an Extension of Time.—An agreement by the principal maker of a note to keep the money for another year and pay the same interest, is a sufficient consideration for the extension agreement, and will, without the consent of the surety, release him.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1895.

<p>1. Contracts—Reciprocal Obligations.—Under a contract imposing obligations upon the parties which are reciprocal, continuous, and constitute as to each party the consideration for those assumed by the other, neither party, while persistently refusing or neglecting to comply with the obligations imposed upon such party can rightfully insist upon the performance by the other of the obligations imposed upon him.</p>

Trespass Oil the Case, for personal injuries. Appeal from the Circuit Court of McDonough County; the Hon. Charles J. Scofield, Judge, presiding. Heard in this court at the May term, 1895.

<p>Trespass oil the Case, for killing domestic animals. Appeal from tha Circuit Court of Coles County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1895.</p>

<p>1. Administration of Estates—Proceeds of Sales in Partition.—A decree of the Circuit Court, ordering the sale of real estate for the purpose of accomplishing a partition among those owning it as tenants in common, does not have the effect of converting the proceeds of such sale into personal assets of the estate of the ancestor.</p> <p>2. Same — Money Arising from Sales in Partition Treated as Real Estate.—Money in the master’s hands, arising from a sale of real estate in partition, is impressed with the character of realty, and retains all the qualities of real estate so far as either administrator or creditor of the ancestor is concerned. It is a subject to be dealt with only as real property.</p> <p>3. Same—Judgment in Favor of an Administrator Appointed Under the Laws of Another State not Competent Here.—A judgment rendered in California against an administrator appointed under the laws of that State, is not competent evidence to show a right of action against an administrator appointed under the laws of this State to administer upon the assets of the same decedent in this State.</p>

<p>Replevin.—Appeal from the Circuit Court of DeWitt County; the Hon. George W. Herdman, Judge, presiding. Heard in this court at the May term, 1895.</p>

<p>Bill in Chancery,—Settlement of partnership matters.. Appeal from the Circuit Court of Montgomery County: the Hon. Jacob Fouke, Judge, presiding. Heard in this court at the May term, 1895.</p>

<p>Trespass on the Case.—Sales of intoxicating liquor. Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the May term, 1895.</p>

<p>1. Probate Court—Functions of.—The function of a Probate Court is to cause the property of deceased persons to be disposed of according to law. First, to the discharge of the just claims of others—next, to those entitled to the residue under the provisions of the will, if the deceased left a will, and if he left no will, to those entitled under the statute of descents. The power of the court and its duty to cause the estate to be administered upon, according to law, is the same whether the estate is testate or intestate.</p> <p>2. Wills—Legatee not Required to Account.—A provision in a will that a legatee and executor shall not be required to account to any one for the use of property willed to him has no reference to his duty as executor to report to the court concerning the discharge of his duty under the statute and his oath of office.</p> <p>3. Same—Power of Testator.—It is not within the power of a testator to nominate an executor to be appointed by the court to administer upon his estate under the statute, and to empower the person so appointed to omit the performance of a legal duty imposed upon him by the statute as such executor.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the May term, 1895.

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Coles County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1895.

<p>1. Practice—Bill of Exceptions.—The bill of exceptions must show the exceptions relied upon.</p>

<p>Relaxation of Costs.—Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1895.</p>

<p>Voluntary Assignments.—Appeal from the County Court of Sangamon County; the Hon. Charles P. Kane, Judge, presiding. Heard in this court at the May term, 1895.</p>

<p>1. Estoppel—To Deny Partnership.—One who permits himself to be treated as a partner will be estopped to dispute the partnership.</p> <p>2. Same—Where the Estoppel Does Not Exist.—It is immaterial what the community or general public may have believed or understood, if the persons dealing with the alleged partners were not misled by their acts, there is no estoppel to assert that the>r were not partners.</p>

<p>1. Contempt op Coubt—Physicians as Expert Witnesses—Demand of Fees.—A physician called as an expert witness in a case about the facts of which he knows nothing, can not insist upon the payment of a fee for his opinion before answering a hypothetical question propounded to him, calling for his' professional opinion upon the assumed state of facts contained in the question.</p>

<p>1. Ordinances—Lawful Discriminations.—An ordinance regulating the sale of intoxicating liquors is not void because it discriminates against malted and in favor of spirituous and vinous intoxicants.</p>

<p>1. Banks and Banking—A Bank can not Bind Itself to Issue Stock in the Future.—A resolution adopted by a bank organized under the statute fixing the salary of the president, and providing in consideration for his acceptance of the office “ for an additional sum equal to two and one-half per cent on all stock to he issued, payable at the time fixed for such issues, that is to say, at least one hundred thousand dollars par value of the said stock is to be issued within one year after the opening of the said bank for business, and another additional one hundred thousand dollars, making three hundred thousand dollars in all that is to be issued, including the first issue of one hundred thousand dollars, within two years from that date,” establishes no binding obligation upon the bank to issue the stock.</p> <p>2. Same—Officers no Power to Bind the Bank to Issue Stock.—Neither the stockholders nor directors in a State bank have power in either capacity to bind the bank to issue stock or to authorize the directors in their discretion to increase the capital stock by several distinct issues. ■</p> <p>3. Same—Issue of Stock, Question of Policy.—Whether, when and in what amount the increase of the capital stock of a State bank shall be made, are questions of policy to be determined by the stockholders, and not by the directors.</p> <p>4. Same—A Creature of the Statute.—A State bank has only a statutory existence, and can exercise its powers and franchises only in the manner provided by the law under which it is organized; and where one mode is prescribed by the law, any attempt to exercise its powers in any other mode is impliedly forbidden.</p> <p>5. Same—Increase of. Capital Stock.—The statute relating to banks and banking prescribes the manner in which the capital stock of a State bank may be increased and contemplates no other manner or means of accomplishing the same; it can therefore be done only in the one way prescribed.</p> <p>6. Same—Stock not to be Increased in Unfixed Parcels.—The stockholders can not by one vote decide upon an increase of an aggregate amount of capital stock in unfixed parcels at unfixed times, distributed and running through a future period, without regard to the judgment or will of those who in the meantime may become stockholders.</p> <p>7. Same—Rights of Stockholders not to be Restricted.—A by-law of a State bank providing that all the stock sold or transferred should be with the express condition that it will be voted in favor of all propositions submitted by the board of directors to increase the capital stock, that it should become a part of every contract for the transfer of stock and operate as a reservation of a limited ownership of the stock transferred, to the extent of the provisions thereof, and made binding on the transferee by the acceptance thereof, is void.</p> <p>8. Same—Province of the Stockholders.—The stockholders of a State bank are the constituent members of the body; they own the capital stock and other corporate property, and dictate the policy by which its business is conducted, but they have no power, by agreement or otherwise, to change in any respect the organic law.</p> <p>9. Same—Rights of Holders of Stock—Transfers.—The right of a shareholder to transfer his stock without condition or limitation is one of vital importance, and all unreasonable attempts to restrain it are void as against public policy, and although an agreement between the shareholders or a part of them, not to sell except on certain conditions may be valid, if it does not amount to an unreasonable restraint of trade; but their right can not be restrained by a by-law of the corporation.</p> <p>10. Ultra Vires—When Not Available as a Defense.—Where a contract made by a corporation with an individual is ultra vires as concerns the corporation, but has been in good faith wholly or in part executed by the individual, so far as executed the doctrine of ultra vires is not a defense.</p>

<p>Bill to Rescind a Contract.—Error to the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1895.</p>

Mandamus.—To compel a city council to canvass the returns of an election. Appeal from the Circuit Court of Coles County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the May term, 1895.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Adams County; the Hon. Oscar P. Bonney, Judge, presiding. Heard in this court at the May term, 1895.

Assumpsit, for money had and received. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1895.

Action for killing domestic animals. Appeal from the Circuit Court of Vermilion County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1895.

Trespass on the Case, for injuries to domestic animals. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1895.

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1895.</p>

<p>1. Verdict— When Not to be Set Aside.—A verdict not manifestly against the weight of the evidence, will not be set aside.</p>

<p>1. Sureties— What Does not Release.—The fact that thename of the obligee in a bond given to an unincorporated society embracing many thousand members residing in different States was given differently in the penal part and in the condition of the bond and also in the constitution and by-laws of the society, does not necessarily relieve the sureties where such different designations are intended to indicate one and the same party.</p> <p>2. Parties—Unincorporated Societies.—An unincorporated society composed of many persons can maintain an action at law only in the names of all members, however numerous.</p>

<p>1. Counties—Liable for Aid Furnished to Persons Injured.—A physician who renders medical aid to persons injured by an explosion when the emergency is such as to warrant an immediate action without waiting to confer with the proper officials, may recover of the county a reasonable compensation for his services.</p>

Indictment.—Selling liquor to a person in the habit of getting intoxicated. Error to the Circuit Court of Ford County; the Hon. Alfred Sample, Judge, presiding. Heard in this court at the May term, 1895.