Volume 64 — Illinois Appellate Court Reports

<p>1. Notice—Of Three Days, When Sufficient.—Where an ordinance required a notice of three days to be given, a notice served on Saturday is sufficient for the Tuesday following.</p> <p>2. Statutes—Repeal by Implication.—The act of May 31, 1879, providing that the city council in all cities, and the president and board of trustees in all villages in this State, may, by ordinance, require every able-bodied male inhabitant of any such city or village, above the age of twenty-one years, and under the age of fifty years (excepting paupers etc.), to labor on the streets and alleys of any such city or village, not more than two days in each year, and providing for commutation of such labor at seventy-five cents per day, applies to all cities and villages whether organized under a special charter or under the general law.</p>

<p>1. Questions of Fact—Verdict Conclusive.—In an action against a railroad company for setting fire to a building, the question as to where and from what source the fire originated, is one of fact for the determination of the jury.</p> <p>2. Parties—Interest in Goods Destroyed by Fire,—Where a person holds goods on commission at his own risk, and is bound by his contract to return them in good order to his principal, or their equivalent in value, his interest in such goods is sufficient to entitle him to recover for their wrongful destruction or damage.</p>

Assumpsit, on policy of insurance. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Held: but also held that the interest of the plaintiff as it actually existed was fully disclosed and represented to the defendant before the policy was issued. (6.) That the interest of the plaintiff in the property insured was not truly stated in said policy. Held.

<p>Replevin.—Appeal from the County Court of Moultrie County; the Hon. J. D. Purvis, Judge, presiding.</p>

<p>Trespass on the Case, for libel. Appeal from the Circuit Court of Sangamon County; the Hon. Jambs A. Creighton, Judge, presiding.</p>

<p>1. Decrees—What is not a Money Decree.—A decree for a mechanic’s lien in the alternative that the money be paid within a given time or the property sold, giving the owne.-s of the property the option to pay or suffer the sale to proceed, is not a personal money decree, and can not be enforced by execution or other process against the persons or general property of the defendants in the decree.</p>

<p>1. Alimony—Decree for, not Res Adjudicata.—A decree for alimony is not res adjudicata if facts occur after its rendition which make it proper the decree should be altered or revised. The power of the court over the subject-matter is not exhausted by the entry of the original decree, but is continuing for the purpose at any time of making such alterations as in the exercise of a judicial discretion may appear to be just and proper.</p> <p>2. Same—Abuse of the Discretion.—The abuse of this discretion may be corrected in courts of review, but unless it is shown to be unreasonable or unjust, the action of the court below should be accepted and approved.</p> <p>3. Same—Revision of the Decree for.—It is not indispensable to the revision of a decree for alimony that the husband should make formal application therefor; the question may arise as well upon the application of the wife for equitable assistance to enforce the payment of the alimony.</p>

<p>Assumpsit, for goods sold. Appeal from the County Court of McLean County; the Hon. C. D. Myers, Judge, presiding.</p>

<p>1. Judgments by Confession-—Motion to Open—Burden of Proof,— On a motion to open a judgment entered upon a judgment note the burden of impeaching the judgment is upon the party making the motion, and where it appears from his affidavits in support of his motion that he will, if let in to plead, be unable to sustain his proposed defense, the motion is properly denied.</p> <p>2. Same—Motion to Open—Equitable Jurisdiction,.— A motion to open a judgment entered by confession, and to let the defendant in to plead, comes within the equitable jurisdiction of the courts of law over such judgment, and should be freely exercised to allow it in a clear case, but not otherwise.</p>

<p>Mandamus.—To compel Board of Education to admit children to school. Appeal from the Circuit Court of Montgomery County; the Hon. Robert B. Shirly, Judge, presiding.</p>

<p>1. Certiorabi—Does Not TÁe to Question the Organization of a Drainage District.—A common law writ of certiorari does not lie for the purpose of testing the legality of the organization of a drainage' district. The statute has furnished another remedy by information in the nature of quo warranto.</p> <p>2. Same—Does Not Lie Where Another Remedy is Provided.— Where the classification of lands in a drainage district is complete, it is competent for any person interested to appeal to three supervisors, as provided by statute, and thus obtain a correction of errors in such classification, and if he neglects to avail himself of the right of redress so provided, he ought not to be heard in another forum.</p> <p>3. Mandamus—Lies to Compel Supervisors to Act.—Where an appeal from the classification of lands in a drainage district is taken to three supervisors and the supervisors refuse to act, the remedy is by mandamus to compel them to act.</p>

<p>1. Questions of Fact—For the Jury.—The determination of questions of fact is for the jury, and when there is evidence to support its finding the verdict will not be disturbed.</p> <p>2. New Trials—Newly Discovered Evidence.—When the newly discovered evidence upon which a new trial is asked is not of such a character as would be likely to produce a different result, the motion is properly denied.</p>

<p>Intervening Petition.—Appeal from the Circuit Court of Greene County; the Hon. George W. Herdman, Judge, presiding.</p>

<p>1. Execution—Without a Seal—Sales Under, Void.—A sale of real estate under an execution having no seal is void, and such execution can not afterward be amended so as to render the sale valid.</p> <p>2. Estoppel—To Deny the Validity of an Execution.—A party litigant may enter a motion to stay an execution and otherwise treat it as a valid writ without being estopped from objecting to it upon his discovery that it is void.</p> <p>3. Same—Elements of.—An equitable estoppel is based upon a fraudulent purpose and a fraudulent result; where the element of fraud is wanting or where there is no deception followed by a change of conduct in consequence, there is no estoppel.</p>

<p>1. Parties—Amendments as to.—Our statute recognizes the rule that an action should be brought by the party in whom is the legal right, but allows amendments incases of mistake by substituting the party legally entitled,' without limitation as to the time when his right accrued.</p> <p>2. Rent—Action for, Between Co-tenants.—The rule that an action between co-tenants will not lie for rent does not apply where there is a contract to pay rent.</p> <p>3. Recovery—In Excess of the Amount Indorsed on the Summons.-A recovery for an amount greater than the sum indorsed on the summons is lawful where the excess is for interest accrued since the commencement of the suit.</p>

<p>1. New Trials—In Courts of Equity.—Courts of equity grant new trials in no case except on clear and satisfactory proof by evidence of a conclusive or decisive character which upon a new trial would produce a different result.</p>

<p>Assumpsit, for medical services. Appeal from the Circuit Court of Jersey County; the Hon. Geo. W. Herdman, Judge, presiding.</p>

<p>Bill to Construe a Will.—Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>Action for Killing Domestic Animals.—Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Mechanic’s Lien—Result of Employing Irresponsible Contractors. —To pay for an inferior house, a kind of house for which the owner never contracted, is a hardship imposed by the mechanic’s lien law, as the result of employing irresponsible contractors, who do not pay for them materials.</p> <p>3. Interest.—Vexatious Belay of Payment.—Where it is not shown that a party is guilty of withholding money by an unreasonable and vexatious delay of payment, there is no ground for charging such party with interest.</p> <p>3. Chancery Practice—Review of Conclusions of Fact— Where a party fails to have the master state upon what evidence he founds his. conclusions of fact, the court can not review such conclusions.</p> <p>4. Same—Return of the Evidence upon Which Conclusions are Found.—It is not for a party to say upon what evidence the master found his conclusions, and attaching to the exceptions the evidence upon which such party assumed that the master based his conclusions is not a compliance with the rule.</p> <p>5. Master in Chancery—Entitled to Fees Before He Reports.—A party can not require a master to return into court the evidence given before him at the instance of such party, without paying him for taking it.</p> <p>6. Fees—The Question of Overcharges Must be First Raised in the Court Below.—The question as to whether a master demanded toó much, can not be determined in this court when it has not been passed upon by the court below.</p> <p>7. Costs—Taxation of.—Ordinarily, the taxation of costs is the duty of the clerk only.</p>

<p>Scire Facias, on an appeal bond. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>1. Variances—Question of to be Raised in the Court Below.—Questions of variance must be raised in the trial court in order that an opportunity may be given to obviate the objection by an amendment.</p> <p>2. Practice— Where one Partner Defends Against a Promissory Note Made in the Firm Name.—Where a partnership exists, and one partner desires to defend against a promissory note made in the firm name by another partner, on the ground that the firm name has been improperly used for the private purposes of another partner, a verified plea by the complaining partner denying the execution of the note, is requisite; and without such plea the execution of the note can not be questioned. A plea of non-joint liability will not take the place of one denying the execution of the note.</p> <p>3. Same—Proper Verification of Pleas.—An affidavit of verification of a plea denying the execution of a note sued on, which fails to state that the plea is true, is fatally defective; the plea must be sworn to be true in order to constitute a verification of it within the meaning of the statute.</p>

<p>Assumpsit, for extra work. Appeal fronrthe Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

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

<p>Assumpsit, upon a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>Assumpsit, on contract of guaranty. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Common Carriers— Condition Limiting the Right of Recovery.— A carrier of live stock may lawfully insert in its receipt given to shippers, as a condition precedent to the right of recovery of damages for loss or injury to such stock, that notice shall be given to some of its officers, or to its nearest station agent, of such injury or loss before the stock is removed from the place of delivery or destination, or mingled with other stock.</p>

<p>Voluntary Assignment.—Claim for rent. Appeal from the County Court of Cook County; the Hon. C. H. Donnelly, Judge, presiding.</p>

<p>Trespass, de bonis asportatis. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.</p>

<p>1. Mechanic’s Lien—Construction of the Statute—Statement as to Time, etc.—Sections 4 and 28 of the mechanic’s lien act, are in pari materia, and are to be construed together. In order that a contractor may enforce a lien under them, the statement provided by section 4 to be filed by him must set forth particularly the time when the material was furnished or labor performed.</p> <p>2. Same—To Whom the Statute Applies.—Sections 4 and 28 of the mechanic’s lien act apply to the original debtor with whom the contract was made, as well as to creditors, purchasers and incumbrancers.</p> <p>3. Same—A Sufficient Statement.—A statement that the materials and work were furnished between certain dates, as, having been begun “ on the 29th day of July, 1893, and completed on the 3d day of December, 1893,” is a sufficient compliance with the statutory requirement in regard to time.</p> <p>4. Same—As to Parties not Complaining.—When a lien is defective for a non-compliance with the statute relating to the statement to be filed, it will, notwithstanding, not be set aside as to parties in interest not complaining.</p>

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

<p>Trespass on the Case,—Damages from the operation of an electric light plant. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy. Judge, presiding.</p>

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

<p>1. Appellate Court Practice — Abstract Must Show Error.— Where an examination of the abstract shows no prejudicial error the judgment will be affirmed.</p>

<p>1. Release—What is Not Sufficient.—Writing the word “ canceled ” across a lease by the officers of a building association is not, of and by itself, sufficient to release the tenant from paying rent.</p> <p>. 2.. Former Decisions—As to Cases in the Appellate Court. —For the lower court and for the Appellate Court on a second appeal, the decision on the first appeal is the law of the case.</p> <p>3. Appellate Court Practice—Insufficient Briefs.—Upon a brief, that the several instructions asked- should have been given, and that such proposition requires no citation of authorities, the Appellate Court is not required to examine the instructions in question.</p> <p>4. Motions for New Trials— When Waived.—A. motion for a new-trial is waived by the neglect of the party making it to present his reasons to the court for granting it.</p> <p>5. Trials—Parties Acting as their Own Attorneys.—A party may conduct his own case without the aid of an attorney, but in so doing he is not relieved from observing the rules of proceeding which attorneys are required to observe.</p> <p>6. Practice—On Offers of Testimony.—To make the exclusion of offered testimony error, the offer must state what the testimony is expected to prove.</p>

<p>Trespass on the Case.—Ejecting the plaintiff from the car. Error to the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding.</p>

<p>Assumpsit, for money had and received. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Promissory Note—Payable to the Order of the Maker.—An instrument in the form of a note, payable to the order of the maker, is not a note until indorsed and ordered paid by the maker, and delivered.</p> <p>2. Same—Indorsers not Guarantors.—Mere indorsers upon a promissory note are not liable as guarantors.</p>

<p>Divorce.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>1. Imprisonment for Debt—Jury Trial—Waiver.—No person can be imprisoned for the non-payment of a fine or judgment except upon the conviction of a jury, unless such tidal by jury is waived by the execution of a formal wáiver in writing (fines inflicted for contempt of court excepted).</p> <p>3. Same—Construction of Statutes.—Section 12, of article 18, chapter 79, R S., entitled “ Justices and Constables” (act of 1895), does not apply to arrests under the provisions of section 4 of article 11 of the same chapter. The execution issued under section 4 is because of something done subsequent to the judgment.</p> <p>8. Same—Defendant Entitled, to a Jury Trial upon Allegations of the Affidavit for a Capias.—Where an affidavit is filed under section 4, article 11, chapter 79, R S., entitled “Justices and Constables” (act of 1895), setting up matters accruing subsequent to the judgment for the issuing of an execution against the body, the defendant is entitled to a trial by jury upon such matters.</p>

<p>Assumpsit, for commissions, etc.—Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge presiding.</p>

<p>Assumpsit, for paving, etc. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Mechanics’ Liens—Time of Performance.—A petition for a mechanic’s lien, which alleges that one of two defendants undertook to erect a building for the other and contracted with the petitioner for work and materials to be paid for upon the presentation of architect’s certificates, sufficiently fixes the time for the performance of the contract.</p> <p>2. Same—Original and Modified Contracts.—The parties to a contract may modify it, and if as modified it would have been valid originally, and the performance of it a basis for a lien, the fact that performance was not according to the terms of the original, but of the modified contract, does not defeat the lien.</p>

<p>1. Variance—Instructions to Find for the Defendant.—When a variance is pointed out on the trial between the declaration and the plaintiff’s proofs, if the plaintiff prefers to stand by his declaration, instead of amending the same, it is proper to instruct the jury to find for the defendant.</p> <p>2. Master and Servant—Accidents—Presumptions of Negligence. —If the breaking of machinery or tools is because of defects therein, to charge the master with negligence, it must be shown that he either knew or ought to have known of the weakness which caused the accident.</p>

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

<p>Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

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

<p>Transcript from a Jnstice of the Peace.—Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding.</p>

<p>1. Interpleader—Eminent Domain Proceedings—Costs. —Where the money for lands taken by proceedings, under the eminent domain act have been paid into the county treasury, and is claimed by different parties, the treasurer may file a.bill of interpleader, and his costs will come out of the fund.</p> <p>2. Costs—As to Nominal Parties. —Where a party to a chancery proceeding, who has no interest in the subject-matter of the controversy, desires to avoid costs, he should disclaim. If he denies by demurrer the authority of the court to act, costs may be properly adjudged against him.</p>

<p>1. Verdicts—Conclusive Upon Questions of Fact.—Where the matters at issue involve only questions of fact, a verdict upon conflicting evidence must be regarded as final and conclusive.</p>

<p>L Leases—Covenants and Conditions.—The breach of the condition of a lease is essentially different in its results from a breach of a covenant. In the case of a condition broken, the right of entry by the landlord, if the condition is of such a nature, will ensue, but for a breach of covenant where no right of entry for such breach is reserved, only an action for damages will follow.</p> <p>3. Rent—Liability of the Sheriff for Occupancy of the Premises after Levy.—Where a sheriff levied upon the goods of a tenant and occupied the leased premises for the purposes of selling the same under the execution, there is no liability on his part to the lessor for the rent of such premises during the period of such occupation, unless the lease is shown to have been thereby terminated, and the sheriff continuing in the occupancy of the premises became liable for the reasonable value of their use.</p>

<p>Assumpsit, for commissions. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.</p>

<p>1. Forgery—Must be an Intention to Defraud.—If a person makes his note by an assumed name, such note will bind him; so too, if, passing himself as bearing the assumed name, he receives checks intended for him but payable to the order of the assumed name, his indorsement thereon of his assumed name will bind him, and if there is no intent to defraud and no one is defrauded, there is no forgery in the transaction.</p> <p>2. Same—Fictitious Names—Fraudulent Intent.—It is. only where the false or fictitious name is assumed for the purpose of fraud that forgery can be predicated of the act.</p>

<p>1. Ordinary Care—Need Not be Shown by Affirmative Evidence.— In an action for personal injuries based upon the negligence of the defendant the exercise of ordinary care is an essential element of the plaintiff’s case; but it is not indispensable that it should be directly shown by affirmative evidence.</p> <p>2. Same — The Jury May Take Notice of the Natural Instinct of Preservation.—There is in all men a natural instinct of self-preservation, and such instinct is an element of evidence in cases of personal injuries founded upon the negligence of the defendant, of which the jury may take notice, and, in the absence of all testimony upon the subject find that a deceased party, in obedience to such instinct exercised that care for his safety which a prudent man would have made use of under the same conditions.</p> <p>3. Negligence—Not Conclusive Hoof.—The fact that a person was standing on the track of a railroad when injured, is not conclusive proof of negligence.</p>

<p>1. Sales—Change of Ownership and of Possession—Good Faith.— A man in financial distress, who has sold out his business to one set of his creditors, is not required to abstain from making his living as an employe in connection with his former business, nor is the purchaser of his business required to exclude him from employment about it. Good faith in the transaction being required.</p> <p>3, Same—Evidence of Change of Possession.—The fact that a portion of the creditors of an insolvent person bought out his business and placed the word “ Agent ” after the name of the seller over the door, is sufficient to put persons upon inquiry as to such agent’s right about the place.</p>

<p>1. Trusts—When They Arise.—A trust will not result to one who pays a part only of the purchase money of land conveyed to another; unless it be some definite part of the whole consideration, it can only arise from the original transaction and at the time it takes place.</p> <p>2. Resulting Trusts—When They Arise.—A resulting trust can only arise in favor of a person who furnishes the consideration money, or some aliquot part thereof, as part of the original transaction, at the time of the purchase.</p> <p>3. Sealed Contracts.—Not to be Altered by Parol Agreements.—Parol agreements whether prior, contemporaneous, or subsequent, are, in the absence of fraud, impotent to alter or annul a sealed contract.</p> <p>4. Equity Practice—Bill When Controlled by Exhibits.—Allegations in a bill of what is contained in a writing which is attached to as an exhibit and made a part of the bill, will be controlled by the writing and not by what is alleged of it.</p>

<p>1. Instructions—Assuming Facts, etc.—In an action for a wrongful discharge, where the defendant pleads the general issue, it is error to instruct the jury that the burden of proof is upon the defendant to show that he was justified in discharging the plaintiff during the term of his employment, as assuming that the defendant did discharge the plaintiff.</p> <p>2. Waiver—In Pleading—General Issue and Plea of Justification.— Where a defendant pleads the general issue and a plea of justification, the general issue is not thereby waived, nor can the plea of justification be used as evidence of what is denied by the general issue.</p>

<p>Action for Rent.—Appeal from the County Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>Trespass on the Case.—Death from negligence. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>1. Assumpsit—When it Lies for Money Had and Received.—The action of assumpsit for money had and received is an equitable action, and will lie wherever one party has obtained money which, in equity and good conscience, he ought not to retain.</p>

<p>1. Writ of Assistance—When to be Issued.—Under a decree of foreclosure providing that upon the execution and delivery of the deed by the master the grantee or grantees, his or their heirs or assigns, be let into possession of the premises, and that any of the parties who may be in possession and any person who since the commencement of the suit shall have come into possession under them, or either of them, on the service of a copy of the master’s deed, shall surrender possession thereof, and in default of so doing a writ of assistance may issue upon a showing of the conditions provided in the decree, the parties are, upon notice, entitled to the writ.</p> <p>2. Parties—Bound to Take Notice.—Parties to a foreclosure suit are bound to take notice of all that is done therein.</p> <p>3. Obiter Dictum—Not the Law of the Case.—What is said in a case must be taken with reference to the matters concerning which the opinion is written. It is not what the court by way of illustration or explanation may say in its opinion that constitutes the law of the case, .but that which is necessarily decided by the judgment.</p>

<p>Trial on a Transcript from a Justice of the Peace.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>1. Equity Practice—Finding of Facts.—A conclusion of fact, not objected to before the master or followed by exceptions, is the end of the controversy upon such facts, and if made upon conflicting testimony, is as conclusive as a verdict, even if objected and excepted to.</p> <p>%. Contracts—Inability to Perform.—The inability of a contractor to perform, is no legal excuse for not performing his contract.</p>

<p>1. Fraudulent Contract—Must be Disaffirmed upon Discovery of ■ the Fraud.—A party to a fraudulent contract, who claims to have been defrauded, must disaffirm the contract at the earliest practicable moment after having discovered the fraud. If he remains silent, and continues to treat property acquired under it as his own, he will be held to have waived the objection, and will be conclusively bound by the contract.</p>

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

<p>Certiorari, to review the action of the Railroad and Warehouse Commission. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Pleading!—Sufficient Declaration.—A declaration in an action for personal injuries which fails to establish a connection between the negligence charged and the injury of which the plaintiff complains is defective as stating no cause of action.</p>

<p>1. Trespass—By Agents of Corporations.—Where an action is brought against an insurance company for trespasses committed by its agents, the burden of proof is upon the plaintiff to show that the-company authorized, countenanced or ratified the acts of the agent.</p>

<p>Assumpsit, on a beneficiary certificate. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>1. Specific Performance— IVhen a Court of Equity Will Not Decree. —A court of equity will not entertain a bill for specific performance of a contract, when it is manifest that before a hearing can be had, the time for performance, which is the essence of the contract, will have expired.</p> <p>2. Injunctions—Will Not Issue to Restrain a Party from. Refusing to Perform a Contract.—A court of equity has power to restrain a party from interfering with the performance of a contract, but it can not restrain him from refusing to perform it; for such refusal the remedy is at law.</p>

<p>. Trespass, guare clausum, fregit. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Assumpsit, for labor and services. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

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

<p>Transcript from a Justice of the Peace.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Assumpsit, on a bill of exchange. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding.</p>

<p>1, Bond and Mortgage—To be Construed Together.—A bond and the mortgage made to secure it, when they are made at the same time, are to be construed together, as if they were parts of one instrument and in relation to the same subject, ás parts of the same transaction, together constituting one contract.</p> <p>2. Same—Mortgage may Qualify the Terms of the Bond.—The mortgage may, as well as the bond, describe the debt and may thus qualify the terms of the bond.</p> <p>' 8. Same—Holder of the Bond may Deprive Himself of the Bight to S,ue. —Where the bond and mortgage are taken together as one transaction the holder of the bond may, by express stipulation in the mortgage, deprive himself of any right of action at law on the bond, except in a certain contingency. He may vest in a trustee his right to sue upon default in the payment of his bond. '</p> <p>4. Construction of Contracts—Bestriction upon the Bight to Sue.— A provision in a mortgage restricting the right of the holder of a bond secured thereby to bring an action at law thereon upon default in the payment thereof is to be strictly construed, but is not to be set aside by such reading as is opposed to the plain meaning of the language employed.</p> <p>5. Negotiable Instruments—What Are.—An instrument is negotiable when the legal title to it and to the whole of the money expressed upon its face may be transferred from one to another by indorsement and delivery by the holder or by delivery only.</p> <p>6. Same—Restrictions upon the Right to Sue.—An interest coupon attached to a bond for the payment of money secured by a mortgage does not lose its negotiable character because of a condition in the mortgage that suit shall not be brought upon it unless upon the happening of a certain contingency.</p>

<p>Debt, upon a policy of insurance. Appeal from the Circuit Court of. Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>Replevin.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Assumpsit, for money had and received. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Building and Loan Associations—Liable for the Acts of the Secretary.—The fact that the secretary of a building and loan association committed frauds upon it, does not affect its liability for his acts, while acting within the scope of his authority.</p> <p>- 3. Interest—Application of the Act of 1891.—The statute of 1891, reducing the rate of interest to five per cent, does not affect the rate to be allowed upon instruments executed prior to its passage.</p>

<p>1. Telegraph Companies — Limitations on the Time to Present Claims.—A condition printed upon a telegraph message, that the company will not hold itself liable for errors or delays in the transmissions or delivery of unrepeated messages in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission, is a condition precedent to the recovery of damages in such cases.</p> <p>2. Same—Ignorance of Conditions Printed on Messages.—Ignorance of the conditions printed upon a telegraph message does not relieve the sender of the message. Where such sender is aware of the existence of such conditions his neglect to inform himself of their requirements does not free him, in law, from a knowledge thereof.</p>

<p>1. Assignment fob the Benefit of Ceeditobs—Claims to be Filed Within Three Months.—Under the provisions of section 10 of the act concerning voluntary assignments, the failure of a creditor of an insolvent estate to exhibit his demand to the assignee within three months from the publication of notice to present claims, will exclude him from participating in the dividends until after the payment in full of all claims presented within that time and allowed by the County Court.</p>

<p>1. Judgment in Bab.—What is not.—A failure in a suit and consequent judgment for the defendant, in the State of Indiana, to recover in which there must have been proof of more consideration than is required in Illinois, is no bar to a suit for the same cause in the courts of this State.</p>

<p>Assumpsit, on a beneficiary certificate. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Appeal—From Judgments of Dismissal.—A dismissal of a case by a justice of the peace for want of prosecution is a judgment from which an appeal lies.</p> <p>2. Judgment—Form of, in Inferior Courts.—No particular form is required in the proceedings of an inferior court to render its order a judgment. It is sufficient if it is final and the party against whom it is rendered may be injured.</p>

<p>1. Appellate Court Practice—Insufficient Abstracts.—An abstract which only shows that objections to a master’s report were taken, without showing what the report was, is insufficient.</p>

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

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

<p>1. Checks —Holder of—Right to Sue the Drawee.—The holder of a check may sue the bank upon which it is drawn, if the account of the maker with the bank is good, and the holder has a good title to the check.</p> <p>2. Same—Bona Fide Holder.—A person who receives a check from his debtor without notice of any defect in its title, is a bona fide holder and gets a good title.</p>

<p>' Assumpsit, breach of contract. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Corut of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Mechanic’s Lien—Affirmative Relief on an Answer.^-In a proceeding for a mechanic’s lien no cross-petition is necessary. If a defendant is entitled to a lien he can have it upon an answer.</p> <p>2. Equity Practice—Defendant Not Entitled, to Notice After Default.—After a defendant has suffered a petition to be taken as confessed he is not entitled to notice of the taking of testimony before the master, nor without taking exceptions can he question the conclusions of fact reached.</p> <p>3. Same—Rights of Co-defendants.—If parties defendant desire to question the rights of other defendants they must do so in the court below.</p> <p>4. Waiver—Of Errors Not Discussed.—When an error assigned is not noticed in the brief of the parties assigning it, it is waived.</p>

<p>Assumpsit, on promissory note. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

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

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

<p>Assumpsit, on promissory notes. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>Attachment Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Appellate Court Practice—Instructions not Shown by the Record.—Where the instructions given to the jury are not shown by the record, the only question to be determined Is whether the evidence warrants the verdict.</p>

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

<p>1. Costs—Of a Receiver Appointed without Came.—Where a party, without probable cause, obtains the appointment of a receiver, he should be made to pay the entire expense thus by him created.</p>

<p>Bill for Belief.—Appeal from the Circuit Court of Cook County; the Hon. O. H. Horton, Judge, presiding.</p>

<p>1. Appellate Courts—Sufficiency of Evidence.— The sufficiency of the evidence to support a verdict is a question to be considered exclusively by the Appellate Court.</p> <p>2. Payment—By Talcing a Note.—The taking of one note for another</p> <p>is not a payment of the other, unless so treated and understood by the •parties at the time.</p> <p>3. Practice—Effect of Bringing Suit for the use of Another.—The fact that a suit is brought for the use of another, in no wise affects the litigation, other than that the defendants having notice that the suit is brought for the use of another, can not make any settlement or compromise with the nominal plaintiff.</p> <p>4. Promissory Notes—Pledgee of, Bound to Account.—A person with whom a note or anything else is pledged, is, in respect to the same, a trustee, bound to respond and account for the same as a trustee, and liable to be charged for neglect or misconduct like other trustees.</p> <p>5. Pledgees—Of Promissory Notes—Duty of.—The pledgee of a promissory note is held to the exercise, in respect to the same,of such diligence as a prudent man exercises in respect to his own affairs.</p> <p>6. Same—Responsibility of.—When the pledgee of a promissory note, without authority, compromises with the maker thereof, he must respond to the pledgor and owner for the value of such note, and prima facie the face value is the true value, the burden of showing that the true value is less than the face value being cast upon the pledgee.</p> <p>7. Same—Extent of Responsibility.—Tire pledgee, in case of such compromise or settlement or a conversion of the pledged note to Ms own use, is responsible to the pledgor only for the true value, that is, for such damage as the pledgor has actually sustained.</p> <p>8. Agents—Declaration of, When Binding upon Principal.—The admissions or declarations of an agent bind his principal only when made under the continuance of the agency in regard to a transaction then depending et dumfervit opus. It is because the statement or admission is an act, a part of the res gestae, that it is admissible at all. His admission of what in the past he did for his principal, is not admissible, because such admission is not a part of the thing done.</p>

<p>Foreclosure Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Assumpsit, for rent. Appeal from the County Court of Cook County; the Hon. C. A. Bishop, Judge, presiding.</p>

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

<p>1. Judgments—Personal—In Foreclosure Suits.—A court is without power in a foreclosure to render a personal judgment in the first instance against a mortgagor, when there is no statute authorizing, and except for the statute, there is no power to render a personal decree for a deficiency after sale.</p> <p>2. Foreclosure—Personal Decrees.—It is only for a deficiency existing after a sale of the mortgaged property, that the statute authorizes a personal decree.</p> <p>3. Appellate Court Practice—Subsequent Appeals—Assignment of Frrors.—The appellant in a cause which is reversed on a cross-error is not estopped from assigning for error upon a subsequent appeal the same errors assigned by him upon his first appeal, and from insisting upon and arguing such errors even though upon his first appeal he waived them by failing to argue them, when upon such former appeal, there was no decision upon the merits of the assigned errors.</p> <p>4. Same—Decision—When Final.—A decision of a case by an appellate court on the merits is final as to the matters decided, and is conclusive upon the parties upon a second appeal or writ of error in the same case. The questions so decided can not again be brought before the court for consideration except upon a petition for rehearing.</p> <p>5. Same—Assigned, hut Not Argued.—In civil cases it is within the discretion of the court whether it will notice errors assigned, but not insisted upon in the argument.</p> <p>6. Contempt of Court—Decreeing in Advance—What Constitutes. —The propriety of decreeing in advance what subsequent conduct will constitute a contempt may well be questioned; it is certain that no valid judgment of 6ontempt can be made without notice, etc., but such an order in a decree does not invalidate it.</p>

<p>Assumpsit, for goods sold.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>■ Assumpsit, for rents. Appeal from the Circuit Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>Assumpsit, for goods sold. Appeal from the Circuit Court of Cook County; the Hon. Frank Adams, Judge, presiding.</p>

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

<p>1. Limitations—Plea of, to Amended Counts.—Where an amended count to a declaration is filed after the statute of limitations has run, and sets up a cause of action different from, that originally declared on, to maintain which different proof is required, and as to which defenses, not pertinent to the original declaration are applicable, a plea of the statute is properly sustained.</p>

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

<p>Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>1. Trustees—Who are Not—Application of Purchase Money.—The fact that a person loaning money upon land has an interest in having the money applied in the first instance to the clearing off of a prior mortgage, is not sufficient to constitute him a trustee for that purpose.</p> <p>2. Notice—To an Agent, When not to His Principal.—The fact that a loan agent who negotiated a loan secured by mortgage deed, had notice of the purpose for which the money was borrowed and the purpose to which it was to be applied, does not amount to notice to the lender and thereby constitue him a trustee to see that it is so applied.</p> <p>3. Same—To an Agent.—Notice of facts to an agent is constructive notice to the principal, where it arises from, or is at the time connected with the subject-matter of his agency.</p>

<p>1. Interest—When not to be Allowed.—To entitle party to recover interest on an open account, delay of payment must be unreasonable and vexatious.</p>

<p>1. Trade-marks.—The Use of, When to be Enjoined.—A man. may not use his own name for the purpose of deception, and such fraudulent use will be enjoined. Fair competition in business is legitimate, and promotes the public good, but an unfair appropriation of another’s business by using his name or trade-mark, or an imitation thereof, caloulated to deceive the public, is not permissible and will be enjoined by a court of equity.</p> <p>2. Same—Degree of Resemblance.—What degree of resemblance is necessary in order to warrant the issuing of an injunction to prevent the fraudulent use of resemblances to trade-marks, or to stop unfair competition in business, must necessarily always continue to be a question which can not be settled by rules applicable to all cases.</p> <p>3. Same—Where a Court Will not Interfere.—While the court is not bound to interfere where ordinary attention will enable the purchasers to discriminate between the trade-mark used on the goods manufactured by different parties, nevertheless the character of the article, the use to which it is put, and the kind of people who are likely to ask for it, as well as the manner in which it is probable it will be ordered, must not be lost sight of.</p> <p>4. Injunction— Unfair Competition.—All practices between rivals in business which tend to engender unfair competition are odious, and will be suppressed by injunction. No man will be permitted to make use of signs or tokens which serve to confuse the identity of his business with that of. another, or to mislead the public, and thus divert custom from his competitor to himself.</p> <p>5. Same—“ Cottolene ” and “ eotosuet." —The use of the word “ cotosuet ” as a trade-mark is not an infringement upon the right to use the word “cottolene.”</p>

<p>1. Contracts—Interpretation of.—A written contract must be so interpreted as, if possible, to carry out the intention of the parties.</p> <p>%. Voluntary Assignments—Subject to Existing Equities.—An assignee under the law relating to assignments for the benefit of creditors, takes the property of the assignor subject to equities existing at the time of the assignment.</p>

<p>1. Malicious Prosecution—Malice and Probable Cause.—In action for malicious prosecution, the party bringing the action is required to show a combination of malice and want of probable cause on the part of the prosecutor. If ’malice and a want of probable cause do not coexist, the action must fail.</p> <p>2. Same—Malice Inferred From a Want of Probable Cause.—Malice may be inferred from a want of probable cause, but want of probable cause can not be inferred from malice.</p> <p>3. Same—Burden of Proof.—In actions for malicious prosecution, the burden is on the plaintiff to show affirmatively, by circumstances, or otherwise, amounting to the clear preponderance of the evidence, that the defendant had no reasonable cause for the prosecution.</p> <p>4. Malice—May be Inferred From the Circumstances.—In actions for malicious prosecution, the fact that the defendant procured the arrest óf the plaintiff on three separate warrants sworn out by him upon distinct charges growing out of the same transaction, is competent as tending to show that the defendant was actuated by malicious motives.</p> <p>5. Advice of Counsel— Must be Disinterested.—A defendant in an action for malicious prosecution, being himself a lawyer and acting as his own adviser in the matter, can not shelter himself behind his own advice as counsel.</p> <p>6. Witnesses—Competency of Infants.—The admissibility of children under fourteen years of age to testify, is largely discretionary, and depends mainly upon the moral sense, intelligence and understanding of the child.</p>

<p>1. Creditor's Bill—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 a creditor’s bill.</p>

<p>1. Verdicts— Not Manifestly Against the Weight of Evidence.—A Verdict’not manifestly against the weight of the evidence will not be disturbed.</p>

<p>- Assumpsit, work, labor, etc.—Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding.</p>

<p>Bill for Specific Performance.—Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Assumpsit for money had and received. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Trover.—Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Evidence— Upon Collateral Issues.—Evidence upon a collateral issue, although admissible, may be stricken out without necessarily requiring the court to set aside the verdict in the case.</p>

<p>1- Errors—Assigned but Not Argued.—Errors assigned and not argued will not be noticed.</p> <p>2. Practice— Reguest for Instructions.—A motion for the court to</p> <p>instruct the jury, without presenting the instructions, is not sufficient to base an assignment of error upon.</p> <p>3. Same—Additional Pleas.—Under the statute a defendant has at first the right to plead as many pleas as he desires to, but when he asks to file additional pleas thereafter the court may, and if such additional pleas tend only to confusion and delay, ought to, refuse leave to file them.</p> <p>4. New Trials.—Verdicttoo Small.—A motion for anew trial should be allowed where the verdict is for a less sum than the evidence shows the party is entitled to.</p> <p>5. Judgments—Must Follow the Verdict—Exception.—No court is authorized to enter a judgment upon a verdict for a greater sum than the verdict, except for interest accrued in the interval between the two.</p> <p>6. Pleading—No Consideration to Sealed Instrument.—A plea of no consideration in an action upon a sealed instrument is bad unless it is such an instrument as is within section 9, chapter 98, R. S., entitled Negotiable Instruments.</p> <p>7. Same—Statute of Frauds.—A plea setting up the statute of frauds in an action upon an instrument in writing, is a personal privilege.</p>

<p>Assumpsit, for work, labor and services. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Cheltain, Judge, presiding.</p>

<p>1. Assignments—For the Benefit of Creditors—Filing Claims.—The fact that a claim is in litigation during the time for filing claims with an assignee under the act relating to voluntary assignments is no excuse for not presenting it to the assignee.</p> <p>2. Same—Claims Filed After Three Months.—A claim not filed within the three months allowed for filing claims under the assignment act, can not share pro rata in the assets and no equitable consideration can entitle the claimant to relief.</p> <p>3. Same—When the Assignee is Personally Liable.—If an assignee by fraudulent means prevents a creditor from filing his claim within the three months, such conduct does not extend the time for filing claims, but may render the assignee personally liable.</p>

<p>Assumpsit.—Common counts. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Injunctions—By Abutting Property Owners.—Abutting property-owners can not have an injunction to prevent the construction of an elevated railroad upon the street.</p>

<p>1. Memorandum.—See Phelps v. Lake Street Elevated R. R. Co., 60 Ill. App. 471.</p>

<p>1. Trust Estates—Tower of Chancery to Change.—When necessity, requires it, a court of chancery has power to change the limitations and provisions governing trust estates.</p>

<p>Assessment of Damages, upon dismissal of appeal. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>1. Common Carrier—Duty Toward Passengers.—It is as much the duty of a carrier of passengers to provide them with reasonably safe places to alight, as it is to carry them in safety to then’ stopping places.</p> <p>2. Negligence—Things to be Considered in-Determining.—The fact of inviting a passenger to get off at a dangerous place by stopping there, and having stopped and seen such passenger alight in what must have been known to the conductor as a place full of perils, giving no warning or caution, are matters to be considered by the jury in determining the question of negligence.</p>

<p>1. Gambling—Options in Grain.—A sale of grain to be delivered in the future is valid; as is also a sale in which the buyer has the option to call for the grain at any time within a month. The options prohibited are mere options to buy, by which the purchaser is under no obligation to take the commodity at all, but may pay the difference in price, and thus be discharged.</p> <p>2. Same—Burden of Proof.—The burden of showing that a transaction is a gambling one is upon the party asserting it, and should be made out by testimony in chief.</p> <p>3. Options—When Valid,.—Transactions of purchase and sale of grain for future delivery are valid, and the fact that a seller has the option to deliver any time during the month for which sale is made, does not render'them illegal.</p>

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

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

<p>Assumpsit.—Appeal from the Circuit Court of Coot County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Contracts—Construction of.—The meaning of an agreement is to be found in its words, and read in the light of surrounding circumstances.</p> <p>3. Equity Practice—No Affirmative Relief on an Answer.—Affirmative relief in chancery can not be given upon an answer.</p> <p>3. Same—Adjusting Accounts.—Courts will not waste their time in adjusting the particulars of a long and intricate account—a business which is the peculiar province of a commissioner and accountant.</p>

<p>1. Laches—In Suits to Restore Lost Records.—Where a party to a proceeding to restore lost records whose petition was dismissed, under a general order of court for want of prosecution, waited fifteen years before asking to have the case redocketed, he was held to be guilty of laches.</p>

<p>1. Foreign Corporations—Proof of Organization.—A certified copy of the law of the State under which a corporation is formed, together with certificates of the proper officers, showing that the law has been complied with, is sufficient evidence of the legal organization of such corporation, in the absence of specific objections pointing out defects.</p> <p>2. Verdicts— Upon Conflicting Evidence.—A verdict upon conflicting testimony is conclusive.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

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

<p>Forcible Detainer.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Assumpsit, goods sold, etc. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

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

<p>1. Practice—Trial by Court—No Propositions of Law Submitted.— Where a cause is submitted to the court for trial without a jury, and no propositions of law are submitted, the only questions which can be reviewed by the Appellate Court are questions of fact.</p> <p>2. Agents—Excess of Authority.—Permitting property to go to sale for taxes and to buy it in at such sale, is a manifest departure from an authority given to pay taxes.</p> <p>3. Judgments— Upon Questions of Fact.—The finding of a trial court upon a bare question of fact, will not, upon appeal, be disturbed when the evidence is conflicting, unless for reasons which would be sufficient to justify the overturning of the verdict of a jury.</p>

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

<p>1. Practice—Pertinent Suggestions.—In cases against corporations for personal injuries, prudence on the part of counsel for plaintiff is quite as important as skill. Verdicts sure to come are often lost by too much zeal. The plaintiff has more reason to fear what the court may do for him at the request of his counsel, than he has need of the aid of the court.</p> <p>2. Instructions—Calling Attention to a Witness by Name.—An instruction which calls attention to a witness by name is subject to criticism.</p>

<p>1. Practice—Province of the Court and Jury.—It is the sole province of the jury to determine the weight that evidence should receive, and equally so to consider conflicting evidence, without any assistance from the court.</p> <p>3. Instructions—Must be as to the Law.—An instruction telling the jury that when one or more witnesses testify to being present upon any occasion, and that certain facts then took place, and other witnesses, of equal credibility, having equal means of knowing what took place, testify that they were present on the same occasion, and that such facts did not take place, then the testimony of the latter witnesses is not what is known as negative testimony, but is entitled to be regarded by the jury as affirmative testimony, goes too far in telling the jury how the testimony was entitled to be regarded.</p>

<p>Assumpsit.—Goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>1. Verdicts—On Conflicting Evidence.—A verdict upon conflicting evidence is, as a general rule, conclusive upon the parties.</p>

<p>Assumpsit, for money paid, etc. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>Assumpsit, for work, labor and services. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>1. Pleadings—Distress Warrant for a Declaration.—A distress warrant in a proceeding by distraint, takes the place of and stands for a declaration.</p> <p>2. Parties—Proceedings by Distress.—Proceedings in distress for rent are improperly brought in the joint names of the landlord and his agent.</p> <p>3. Variance—Between Distress Warrant and Lease.—A variance between a distress warrant and a lease upon which it issued, when offered in evidence, is fatal.</p> <p>4. Rents —Houses of IllrFame.—The fact that a house is knowingly rented for the purpose of being used as a house of ill-fame is a defense to an action for rent.</p>

<p>1. Practice—Judgment in Excess of the Ad Damnum—Waiver.— The fact that the judgment recovered is in excess of the amount claimed in the ad damnum is error, but is waived by not being raised or in any manner brought to the attention of the court below.</p> <p>2. Short Cause Calendar—Trial óf Case Upon—Waiver.—The fact that a cause upon the short cause calendar is not at issue when called for trial, is waived by the parties agreeing to submit the same for trial by the court without a jury.</p> <p>3. Insolvency—Proof.—In an action against the indorser of a promissory note, the insolvency of the maker may be proved the same as any other fact.</p> <p>4. Corporations—Proof of Corporate Existence—When Necessary. —Proof of the averment that the defendant is a corporation is not necessary under our practice unless challenged by the plea of nul tiel corporation.</p> <p>5. Same—Corporate Existence Admitted.—Where the defendant, by-his peculiar form of pleading, admits the corporate existence of the plaintiff, he cannot afterward deny such corporate existence.</p>

<p>1. Contracts—Construction of—Intention.—As between the parties to a contract the intention governs in the construction of the same.</p>

<p>1. Pleading—Special and Common Counts.—Common counts are appropriate only when the defendant has received, in some form, the equivalent of the money which he is called upon to pay. But when his obligation to pay rests only upon his non-performance of his promise, however good the consideration for the promise, the declaration must be special. On the other hand, however special the contract, not under seal (and under the statute perhaps if it is), if the plaintiff has performed it and the defendant received the benefit under it for his own use, in general, some common count will suffice.</p>

<p>1. Negligence—What is—Moving Cars.—A “kicked” car moving along a track at night, without a light upon it, or any one to control its movements, is negligence.</p> <p>2. Same—Cars Moving Without Lights.—A “switched ” car moving along a track is a “ running ” car within the meaning of an ordinance providing that “ every locomotive engine, railroad car, or train of cars, running in the night time, shall have and keep, while so running, a brilliant and conspicuous light on the forward end of such locomotive engine, car, or train of cars.”</p> <p>3. Words and Phrases—“ Switched Car ” and “ Running Car.”— Under an ordinance providing that every locomotive engine, railroad car, or train of cars, running in the night time, shall have and keep, while so running, a brilliant and conspicuous light on the forward end of such locomotive engine, car or train of cars, a “ switched” ear moving on a track is a “running car.”</p> <p>4. Same—“ Forward End of a Car.”—The forward end of a car moving along a track is that end which is presented to a person approaching in a direction opposite to the line of movement of the car.</p> <p>5. Error—Will Not Always Reverse.—An unimportant error will not be sufficient to reverse a judgment where the right to recover is clear.</p>

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

<p>Assumpsit, for goods sold. Appeal from the Circuit Court of Cook County; the Hon Edward F. Dunne, Judge, presiding.</p>

<p>1. Sales—Where Made.—A person who resided and did business at Hobart, Indiana, received at that place an order by mail, for goods, from a party residing and doing business in Chicago, Illinois, which he accepted in Indiana, and filled by delivering the goods free on board cars at Hobart, Indiana, consigned to purchaser at Chicago. This was held to be a sale in Indiana,, at the place where the orders were accepted, and the minds of the parties met.</p>

<p>Assumpsit, on contracts. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

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

<p>1. Corporations—Vice-President as Agent—The vice-president of a corporation may act as its agent, and if he is by it' so recognized and treated or held out to the world, his acts, within the scope of the authority given to him, are as binding as those of any other agent.</p> <p>2. Estoppel—By the Conduct of a Party.—Where a party so conducts himself as to lead others reasonably to believe that a person is his. agent, such party will not be permitted to deny the existence of the relation he has induced others to believe existed.</p> <p>3. Tender—When Unnecessary.—Where a party owing an installment on a bond is told that his bond is forfeited, and that no further payments will be received from him, he is relieved from the necessity of making further tenders of payment.</p>

<p>1. Limitations—Defense of, Must Be Pleaded.—The rule is uniform that tiie defense of the statute of limitations must be pleaded by one who relies thereon.</p> <p>2. Same—The Proper Practice.—The proper practice in such cases is to declare upon the original obligation, and ■ if the statute is interposed as a defense, to set up such facts by replication.</p> <p>3. Courts—Powers at Subsequent Terms.—A court can not at a subsequent term, from its recollection, add to, or take from the record. There must be something to amend by.</p> <p>4. Statute of Limitations—What Act Applies.—Upon a contract made prior to the revision of 1872, the proper plea of the statute of limitations is that in force prior to the revision, being that the cause of action did not accrue within sixteen years.</p>

<p>1. Appellate Court Practice—Errors Not Assigned.—Where it is not assigned for error that the court below erred in denying, or not granting, the motion for a new trial, all causes for a new trial which are not of themselves the subject of exceptions, are beyond the consideration of the Appellate Court.</p> <p>2. New Trials— Conduct of Counsel.—Conduct of counsel during the trial, if objectionable, however exceptionable it may be, can not be made the subject of an exception per se. The only mode by which it can be brought before this court for review, is by exception to some ruling of the court in relation to it.</p> <p>3. Motion for New Trials—Reasons Not Assigned, Waived.—The logical consequences of holding that when a motion is made for a new trial, all reasons therefor not assigned in the motion are waived, seems to be, that if denying the motion is not assigned for error, everything prior to the motion stands unassailable.</p> <p>4. Rehearings—For What Purpose.—Rehearings can not be allowed for the purpose of permitting a new case to be made for this court.</p>

<p>1. Lost Records—Restored Pending an Appeal.—Where the records of the Circuit Court have been lost by fire, it is proper to restore them by proceedings in such court pending an appeal, and to file such restoration as an amended record in the Appellate Court.</p>

<p>1. Stating Accounts—Between Partners.—Where the individual property of a partner has been used by the firm in the transaction of its business, an equitable allowance against the firm and in favor of such partner should be made to compensate him for the use of his property.</p> <p>2. Same—Special Rules and Directions.—The court in this case reverses the decree and remands the cause with instructions to the. court below to permit the parties to introduce testimony as to the reasonable use of individual property, etc.</p>

<p>1. Municipal Indebtedness—Excess of Constitutional Limit.—The acceptance of a proposition by a city, while indebted, in excess of the constitutional limit, by which it will be able to acquire an electric light plant for the purpose of lighting its streets, and pay for the same out of its annual levy for lighting purposes, without in any way increasing its indebtedness, is legal and not in excess of its powers.</p> <p>3. Same—When a Tax Payer can not Complain.—The power of a city to light its streets includes the power to acquire by purchase or building, a plant for such purpose, and if this can be done by an accumulation from taxes within the power of the city to levy, without imposing unduly upon the tax payer, he can not be heard to object in a court of equity.</p>

<p>Assumpsit, for money had and received. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>1. Negligence—Of an Attorney—Chargeable to his Client.—A defendant employed a firm of attorneys to defend a suit for him. The partner with whom the arrangement was made left town temporarily, and inadvertently neglected to notify his copartner of the employment of the firm. During his absence a judgment was taken by default. Upon an application to set aside the default it was held that the general rule that the negligence of the attorney is the negligence of the client was applicable, and the court below was warranted in enforcing it unless it clearly appears that the default and judgment will work gross injustice.</p> <p>2. Practice—Defaults—Defective Declaration,—Where a default has been taken and the declaration is found to be defective and such defect is made a ground for setting aside the default, the court will set it aside and give the plaintiff leave to amend; but where the defect consists in the omission to state a conceded fact and the defendant has had an opportunity to obtain a ruling as to its sufficiency in the court below and failed to do so, the Appellate Court will not consider the objection.</p>