Volume 65 — Illinois Appellate Court Reports

<p>1. Acknowledgment—Officer Taking, Competent to Impeach.—The evidence of the officer who takes an acknowledgment of a chattel mortgage is competent for the purpose of impeaching liis official certificate.</p>

<p>1. Laches—When not a Defense to a Bond.—A builder executed a bond conditioned to save and keep harmless the owner from all loss and liability above the contract price of the building; upon settlement there was a suit for a sub-contractor’s lien pending, which the builder agreed to attend to. The owner paid him the full contract price and went East, leaving the matter with the builder, who let the suit go by default. In a suit on the bond, the defendant set up the failure of the owner to answer the petition for a lien as laches as a defense, but a recovery by the plaintiff was sustained.</p>

<p>Trespass on the Case.—Damage from fires. Error to the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1895.</p>

<p>Assumpsit, for a balance due. Appeal from the Circuit Court of Christian County; the Hon. Jacob Fouke, Judge, presiding. Heard in this court at the November term, 1895.</p>

<p>I. Attorney Fees—Reccwsn/ of.—The statute authorizes the recovery of reasonable attorney’s fees in any court wherein suit is brought against a railroad company for killing domestic animals.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Brown County; the Hon. Jefferson Orr, Judge, presiding. Heard in this court at the November term, 1895.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Sangamon County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1895.</p>

<p>1. Damages—Breach of Contract.—When a person engages to work for another for a certain period, and is discharged without legal cause before the expiration of such period, he is entitled in an action for a breach of the contract to recover all the damages he suffers in consequence of such discharge.</p>

Assumpsit.—For money had and received. Appeal from the County Court of Moultrie County; the Hon. Isaac Hudson, Judge, presiding. Heard in this court at the November term, 1895.

Trespass on the Case, for libel. Appeal from the Circuit Court of Tazewell County; the Hon. Nathaniel W. Green, Judge, presiding. Heard in this court at the November term, 1895. Statement oe the Case. The Circuit Court held appellant’s declaration in an action, for libel obnoxious to a demurrer and dismissed the cause. This-appeal questions the correctness of this ruling of the court.

<p>Trial of the Rights of Property.—Appeal from the Circuit Court of Menard County; the Hon. Cyrus Epler, Judge, presiding. Heard in</p> <p>this court at the November term, 1895.</p>

Indictment, for selling intoxicating liquor to a person in the habit of getting intoxicated. Error to the County Court of McLean County; the Hon. C. D. Myers, Judge, presiding. Heard in this court at the November term, 1895.

Assumpsit, for goods sold and delivered. Appeal from the Comity Court of Edgar County; the Hon. E. G. Rose, Judge, presiding. Heard in this court at the November term, 1895.

<p>1. Lost Records—Restoration of—Parties.—Section 2, chapter 116, R. S., entitled “ Records,” provides that the application to restore a lost record may he made by any party or person interested, and that the record when restored shall have the same effect as the original, “ so far as concerns the party or person making such application, and the persons who shall have been notified,” but does not provide what persons shall be notified.</p> <p>2. Parties—Proceedings to Restore Lost Records.—The proceedings to restore lost records is statutory, and is binding only as between the parties thereto, and such parties can not complain that other persons were not made parties.</p> <p>8. Notice—In Proceedings to Restore Lost Records.—The general direction of the statute is, that notice shall be given as in chancery cases, hut when the original proceeding was in rem without personal service, then as nearly as may be as in the original proceeding, sought to be restored.</p>

<p>1. Statutes—Construction of—Act of 1895.—Section 5 of the act of June 4, 1895, relating to suits on negotiable instruments (Laws 1895, p. 262) should receive a strict construction, and judgments, to be warranted by it, should be so limited as not to affect the separate property of defendants not served.</p> <p>2. Judgments— Under Section 5, Act'of 1895.—A judgment on a negotiable instrument under section 5 of the act of 1895 (Laws 1895, p. 262), must be limited so as not to affect the separate property of defendants not served, and all judgments not within the letter or spirit of the statute must be reversed under the general rule declared in Oañin v. Dunne, 129 111, 241, and cases cited on p. 248.</p>

Assumpsit, for labor and materials furnished. Appeal from the Circuit Court of Yermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard, in this court at the November term, 1895.

Debt, for the recovery of penalty for obstructing a highway. Appeal from the Circuit Court of Champaign County; the Hon. Prancis M. Wright, Judge, presiding. Heard in this court at the November term, 1895.

<p>1. False Representations—Action for Deceit.—When one knowingly makes an untrue statement with regard to anything then existing, or which has previously occurred, material to the matter in hand, and he to whom it is made, not knowing its untruth, relies upon it and sustains damages, the person making such false statement is liable for the damages accruing to the party injured.</p> <p>2. Fraud and Deceit—Grounds of Action.—The grounds of the action for deceit is fraud and damage. There must be a scienter, misrepresentation and consequent loss. As between vendor and vendee, false representations respecting mere value are not actionable; but when the vendor leaves the domain of judgment and opinion and falsely asserts a material fact, and induces reliance thereon by one without knowledge of the falsehood, and without the present means or opportunity of investigation, and under circumstances justifying belief, he is liable for damages occasioned thereby.</p>

<p>1. Practice—Opening and Close.—The mere fact that the general issue is not withdrawn until the jury has been chosen will not prevent the party holding the affirmative from opening and closing the case. It is within the discretion of the court to permit this whenever, during the trial, the defendant assumes the affirmative.</p> <p>2. Defenses—Signature Fraudulently Obtained.—Where the evidence tended to show that a few days after the death of her husband, at a time when she was depressed mentally and physically, the plaintiff called on the defendant (the widow), representing that the administrator had told him to do so in order that she might select the monument, and when she inquired who was to pay for it, plaintiff said, or at least assented to the statement of another person who was present, that the estate would pay for it, and not intending to incur any personal responsibility, and supposing she was merely making a selection for a purchase to he made by the administrator, she signed, without reading, a paper which made her the purchaser and as such responsible for the price, it was held sufficient to support her contention that she was deceived and misled by the plaintiff in this respect, and the plea that her signature was fraudulently obtained, amply sustained.</p>

Assumpsit, money had and received. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1895.

<p>1. Decrees—Power to Amend After the Term—Bill of Review.—It is a well settled rule of practice that, generally, the court can. not set aside a decree rendered at a former term for mere error of law; the proper course is by bill of review.</p> <p>2. Same —Requisites of.—A mere copy of the judge’s minutes may serve as a memorandum from which counsel can prepare a decree, but such minutes are not, in any proper sense, a decree in the case.</p> <p>3. Same—Where Amendments are Proper After the Term.—Where there is no decree beyond a mere finding that the bill was confessed and a certain amount due to the complainant, the decree is in an unfinished and incomplete condition, and the court has jurisdiction, at a subsequent term, to amend, alter or wholly set it aside.</p> <p>4. Assignment—Of Ohoses in Action—Bights of Assignee.—A judgment being a chose in action, can not be transferred so as to vest the legal interest in the assignee. A beneficial interest only passes, and the assignee takes the judgment subject to all equities between the original parties.</p> <p>5. Same—Of Ohoses in Action—Assignee Not Subject to Equities of Third Persons.—The assignee of a chose in action takes it subject to the equities of the original debtor, but he is not affected by the equities of third persons, especially those called latent equities.</p> <p>6. Same—Judgments and Mortgages, on the Same Footing.—Judgments and mortgages stand upon the same footing in regard to the rights of assignees. Each is a mere chose in action not negotiable at law, and as to each, the interest of the assignee is merely equitable, and enforceable as such.</p>

<p>1. Chattel Mortgages—Interest of Mortgagor "Liable to Executions.—Where the mortgage debt is not1 2due, and the mortgagor is in possession of the property pursuant to the terms of the mortgage, he has an interest in the property which is subject to levy, and also to sale upon execution.</p> <p>2. Constable—Where Not Liable as a Trespasser—Mortgaged Property.—Where the debt is not due and the mortgagor of personal property is in possession of it pursuant to the terms of the mortgage, an officer is not liable as a trespasser for making a levy upon and sale of it under an execution.</p> <p>3. Execution Sale—Mortgaged Property—Right of Purchaser.—-A purchaser of mortgaged property at an execution sale takes only the rights of the mortgagor. If the mortgagee does not interfere, the sale must proceed, and as the officer has no further control of the property, he can not be held responsible for the subsequent acts of the purchaser.</p>

<p>Debt, to recover a penalty. Appeal from the Circuit Court of DeWitt County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the November term, 1895.</p>

<p>1. Schools—Employment of Teachers—Certificate.—-Prior to July 1, 1893, the statute provided that no teacher should be entitled to any portion of the school fund, or be employed to teach, who had not at the time of the employment a certificate of qualification; but by the amendment in force on the day mentioned, it is sufficient that the teacher have the certificate “ at the time he enters upon his duties as such teacher.”</p> <p>2. Same—Directors Must Act at a Meeting, etc.—Section 19 of article 5 of chapter 122, R. S., entitled Schools,” provides that no official business shall be transacted except at a regular or a special meeting, but the fact that the directors proceed informally and make no record of their meeting does not affect the validity of what they did, so far as hiring a teacher is concerned.</p>

<p>Assumpsit, on promissory note. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1895.</p>

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

Trespass on the Case, for a failure to transport cattle. Appeal from the Circuit Court of Cass County; the Hon. Lyman Lacey, Judge, presiding. Heard in this court at the November term, 1895.

Bill for Mechanic’s Men, with cross-bill to adjust other liens. Error to the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the November term, 1895.

<p>Forcible Detainer.—Appeal from the Circuit Court of DeWitt County; the Hon. CYRUS Epler, Judge, presiding. Heard in this court at the November term, 1895.</p>

Claim in Probate.—Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1895. Statement of the Case.

Bill for the Distribution of the Funds of a Building and Loan Association.—Appeal from the Circuit- Court of McLean County; the Hon. Alfred Sample, Judge, presiding. Heard in this court at the November term, 1895. Statement of the Case. Appeal from decree of the Circuit. Court of McLean County entered in the matter of receivership of the Illinois Building and Loan Association.

Trespass on the Case.—Death from alleged negligence. Appeal from the Circuit Court of McLean County;, the Hon. Thomas P. Tipton, Judge, presiding. Heard in this court at the November term, 1895. Statement on the Case. Appellee sues to recover damages for the death of her husband, William L. DuBois, an engineer in appellant’s employ, who was killed by the explosion of the boiler of his locomotive while running upon the road of appellant, on the evening of February 2, 1892.

<p>1. Fellow-Servants—Engineer, Bralceman and Fireman.—The engineer, forward brakeman and fireman in charge of a locomotive engine are fellow-servants, and neither can look to the master for the negligence of the other.</p>

<p>Replevin.—Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the November term, 1895.</p>

Bill for Divorce.—Appeal from the Circuit Court of Greene County; the Hon. George W. Herdman, Judge, presiding. Heard in this court at the November term, 1895. Statement oe the Case. This is an appeal from a decree sustaining a demurrer to a bill in chancery for divorce and dismissing the bill at cost of complainant.

Indictment, for keeping a tippling house open on Sunday. Error to the County Court of McLean County; the Hon. C. D. Myers, Judge, presiding. Heard in this court at the November term, 1895.

<p>1. Promissory Notes—Alteration of Indorsement.—Where the payee of a promissory note, before maturity, made an indorsement upon it to the effect that he had sold a portion of it to the plaintiff, and authorized a bank to collect and pay over such portion without recourse on him, and before suit the plaintiff struck out all the indorsement except the words “without recourse’" and the signature of such payee, it was held that in this condition the note must be regarded as being transferred to the plaintiff after maturity.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Fulton County; the Hon. Jefferson Orr, Judge, presiding. Heard in this court at the November term, 1895.

<p>1. Corporations—Liability of the Promoters Before the Organization is Complete.—When one is induced to subscribe for stock in a corporation which fails to complete its organization, he may recover the money paid by him for such stock from the promoters of the corporation, or from any of them to whom he pays his money.</p> <p>2. Same—Persons Peceiving Money Must Have Authority.—-In order to hold the promoters of an abortive corporation, it must be shown that the person receiving the money sought to be recovered was authorized to receive it for the corporation, and that he in fact did so receive it.</p>

<p>1. Statute op Limitations—Defense of—Personal.—The defense of the statute of limitations is personal to the party against whom the cause of action is charged or relief sought, or who has some legal estate in the subject-matter to be affected, which he may ordinarily interpose or waive as he sees fit.</p> <p>2. Administrator— Where It Is His Duty to Plead the Statute.— An administrator represents only the personal property belonging to the estate, and creditors and distributees entitled to share in the disposition of it or its proceeds; and in his representative capacity, as trustee of such property for such persons, it is his duty to interpose the presumptions and positive limitations of the law “ against claims presented for allowance and coming within his purview.”</p> <p>3. Same—Where He Can Not Plead It.—Where the claim is not presented for allowance against the estate or to be paid in whole or part out of any property or fund then in or which might come to the hands of the administrator or be represented by him, but by a foreclosure proceeding to which he becomes a parly on his own application and by which</p> <p>it is sought to enforce what had been, and unless the statute was rightfully pleaded still was, a valid first lien upon specific real estate, against the owners by inheritance, all of whom were made parties, but were not personally liable for the mortgage debt, the administrator can not plead the statute of limitations.</p> <p>4. Same—Where He Is Not a Necessary Party.— In a proceeding to foreclose a mortgage upon land of a deceased mortgagor where the premises are worth less than the amount of the debt, and where there can be no decree for any deficiency in the proceeds of the sale of the mortgaged premises, to be paid out of the personal estate, the administrator is not a necessary pgrly.</p>

<p>Creditor’s Bill.—Error to the Circuit Court of Macon County; the Hon. Edwakd P. Vail, Judge, presiding. Heard in this court at the November term, 1895.</p>

<p>1. Continuance—Attorney, a Member of the Legislature.—An affi-. davit for a continuance, on the ground that the attorney of the party is a member of the general assembly, not containing the words “ in such suit,” as used in section 47 of the Practice Act, but the different and not necessarily equivalent words, “this cause,” is insufficient.</p> <p>2. Same—Statute Construed.—The words, “in such suit,” as used in section 47, chapter 110, R. S.,. entitled “ Practice,” refer to a suit actually commenced, and not to a mere controversy, or a suit threatened or anticipated.</p> <p>3. Appellate Court Practice—Abstracts.—-The Appellate Court is not inclined to go to the record in aid of technical objections.</p> <p>4. Practice—What is Admitted by a Default.—Where a defendant is defaulted for want of a plea, the performance, of any contract set out in the declaration is admitted. -</p>

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

<p>1. Corporations—TE7ien not Liable for the Trespasses of their Agents. —The action, of trespass can not be sustained against a railroad company for the wrongful act of one of its employes unless such wrongful act is done in pursuance of its orders, or the manner of doing it is such as necessarily follows such orders.</p> <p>2. Damages—Mitigation of in Trespass.—Where a defendant has been provoked to make an assault upon a plaintiff, by having been first assaulted, and is.found guilty of using excessive force in his defense, such provocation is to be considered in mitigation of damages.</p>

Trespass on tlie Case.—Damages existing by reason of a change in the grade of a street. Appeal from the County Court of Morgan County; the Hon. Richard Yates, Judge, presiding. Heard in this court at the November term, 1895.

Mortgage Foreclosure.—Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the November term, 1895. Statement oe the Case.

<p>1. New Trials—Where a Case has not been Fairly Tried.—"Where the record impresses the Appellate Court with the belief that the merits of the controversy have not been fairly tried, the judgment will be reversed and the case remanded for a new trial.</p> <p>2. Practice—No Written Pleadings.—In cases where there are no written pleadings, the defendant may insist upon any defense to the plaintiff’s claim that the proofs may warrant, as want or failure of consideration, recoupment or set-off, etc.</p> <p>3. Promissory Notes. —Defenses by Way of Recoupment or Set-off. — Where there is an agreement to procure the incorporation of the stockholders in a corporation and to furnish a subscriber his share of stock as the consideration of the promissory note given by such subscriber, there is no reason why damages growing out of the breach of the agreement might not be interposed by way of recoupment or set-off, even though not pleadable as a want of failure of consideration.</p>

<p>1. Freehold—Where not Involved.—In a proceeding for partition, ■which raises no question as to the title of the land, a freehold within the meaning of the statute is not involved.</p> <p>2. Appeals—Decree for Partition Final.—A decree in partition which finally settles the rights of the parties, is final, and it is not necessary to wait until the sale and final distribution of the proceeds before taking an appeal or writ of error..</p> <p>3. Estoppel-^When a Duty to Speak.—Where a widow paid off a mortgage given by her deceased husband, in which she joined, and suff ered a third party to purchase the shares of the heirs in the mortgaged property, without asserting any claim upon such premises for the amount she had paid, she was held to be estopped from claiming an interest in the land by reason of such payment, as against the purchaser.</p> <p>4. Taxes—Payment of, in Suits for Partition.—In proceedings for partition of real estate, the amount paid for taxes upon the same is to be apportioned among the parties according to their interests in the lands and the equities of the case.</p>

Assumpsit, for mortuary assessments. Appeal from the County Court of Coles County; the Hon. Sumner S. Anderson, Judge, presiding. Heard in this court at the November term, 1895. Statement of the Case. This is an appeal from a judgment sustaining a demurrer to the following declaration, viz.: State of Illinois, ) Coles County, j In the County Court, September term, 1895.

Bill for Belief, injunction and receiver. Appeal from the Circuit Court of Fayette County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the August term, 1895.

<p>1. Wills—Powers of Testators.—It is within the power of a testator to declare in his will that he is indebted to a person, and that whatever part of his estate shall be taken or claimed by such person as due him, shall be considered as due him without further proof and conclusive upon his heirs.</p>

Assumpsit, for interest, etc. Error to the Circuit Court of St. Clair County; the Hon, Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1896. Statement of Facts. On the 3d day of April, 1888, the Western Hail Company, of Belleville, Illinois, having become financially embarrassed, was confronted with the fact that unless relief was secured, the company would be compelled to suspend.

Assumpsit, for assessments on a policy of insurance. Appeal from the Circuit Court of Clinton County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1896.

<p>Assumpsit, for services, etc. Error to the County Court of Williamson County; the Hon. Lorenzo D. Hartwell, Judge, presiding. Heard in this court at the February term. 1896.</p>

<p>1. Excessive Damages—Malicioy.s Prosecution.—Where a person is technically under arrest, but suffers no pain of body or mind, or feels ' humiliated to any great extent, a finding for §3,500 is excessive.</p>

<p>1. Set-Off—Unliquidated Damages.—Damages, although unliquidated, if occasioned by a breach of the contract sued on, may be set off, and a recovery of a judgment had for the excess, if any.</p>

<p>1. Salaries—Officers—Construction of the Term.—The word salary, as used in an order of the county board fixing the compensation of a county clerk, means his compensation for his personal services as an official, and does not prevent the board from afterward making allowances for “ extra clerk hire ” actually paid out by such clerk.</p> <p>2. i jfficers—Power of County Boards to fix Compensation.—Where the county board fixes the compensation of a county officer, including stationery, fuel and clerk hire, as required by law, such action is under the constitution a finality, and the same can in no way be increased during the term of the officer; but where the board simply fixes the salary, a different rule prevails.</p> <p>8. Counties—Suits to Recover Back Money Paid to Officers.—Where a county, after fixing the salary of a county clerk, allowed him for extra clerk hire upon his semi-annual reports, during his term of office, and then sued to recover the same back, it was held that the rule that parties will be held to the interpretation of a contract which they have placed upon it, and their acts may be shown to show such interpretation, applied, and no recovery could be had.</p>

<p>t. Gratuities—Conditions Precedent to Recovery.—Before a gratuity offered upon certain conditions can be recovered, it must appear from the evidence that the conditions have happened as provided by the offer.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1896.

<p>Assumpsit, for money due. Appeal to the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1896.</p>

<p>1. Exemptions—Wages of a Laborer.—A judgment under section 16, chapter 52 (1 Starr & Curtis), entitled “ Exemptions,” rendered by a justice of the peace, which states that it is “ for the wages of a laborer,” is sufficient to authorize the levy of an execution on property otherwise exempt.</p>

<p>Assumpsit, on a building contract. Appeal from the Circuit Court of Franklin County; theHon. JosephP. Robarts, Judge, presiding. Heard in this court at the February term, 1896.</p>

<p>1. . Verdicts—When Conclusive.—A verdict not against the weight of the evidence, is in general conclusive.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Massac County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1896.</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 February term, 1896. Statement oe the Case. The appellant owned and operated a coal mine near Collinsville, in Madison county, called the Henitz Bluff Mine. Appellee was employed in the mine as a driver, and had been so employed for about five months before he was injured.

Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Benjamin H. Canby, Judge, presiding. Heard in this court at the February term, 1896.

<p>Assumpsit, on a beneficiary certificate. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Heard in this court at the February term, 1896.</p>

<p>1. Consideration—Want of, in Promissory Note.—A consideration must be given to make a promissory note binding upon the maker.</p> <p>2. Same—Giving a New Note for an Old One.—Whore a new note is given for an old note which was without consideration the new note is also without consideration.</p>

Trespass to Personal Property.—Appeal from the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1896. Statement of the Case.

<p>1. Variance—Pleadings and Proof—Surplusage.—Where the declaration was upon a general judgment, and the payment of the judgment offered in evidence was limited to certain named funds, the limitation was treated as surplusage, and the judgment properly admitted in evidence under a plea of nul tiel record.</p> <p>2. Payment—When the Question of is not in Issue.—It is not incumbent upon the plaintiff in an action on a judgment to show affirmatively that such judgment has not been paid, when the only plea filed is that of nul tiel record.</p>

Bill, to charge real estate with the payment of legacies. Appeal from the Circuit Court of Madison County; the Hon. Benjamin R. Burhoughs, Judge, presiding. Heard in this court at the February term, 1896. Statement of the Case. On September 29, 1885, Martin Brooks died testate, seized of certain real estate, which, by the bill filed in this case, is sought to be charged with the payment of a certain legacy to appellant.

Trespass on the Case, for personal injuries. Appeal from the City-Court of East St. Louis; the Hon. Benjamin H. Canby, Judge, presiding. Heard in this court at the February term, 1896.

<p>1. Appeals—From Orders Removing Administrators.—In an appeal from an order removing an administrator, the appeal bond can not be filed in the Circuit Court, and if so filed the appeal is properly dismissed.</p> <p>2. Same—Improper Parties.—The county judge and county clerk are in no sense parties to an appeal from an order removing an administrator.</p>

<p>1. Garnishment—In Whose Name the Proceedings Should Run.— Garnishment proceedings should run in the name of the judgment debtor for the use of the judgment creditor as plaintiff, against the garnishee as defendant, and the question to be tried is whether or not the garnishee is indebted to the judgment debtor.</p> <p>2. Same—In Attachment Proceedings.—’Where one is garnisheed in attachment proceedings, the suit is in the name of the defendant for the use of the plaintiff against the garnishee.</p> <p>3. Same—Garnishee to he Protected.—In every case the garnishee is to be protected so that he can not become a loser by reason of the institution of such a suit for the benefit of one to whom he owes nothing.</p> <p>4. Same—Other Proceedings Pending in Bar.—It does not follow that the judgment debtor is the sole plaintiff for all purposes, and that where the pendency of another proceeding in garnishment is pleaded in bar in determining whether or not tne parties to the two proceedings are the same, the name of the judgment creditor may be wholly disregarded. There are marked differences between this proceeding and an ordinary action at law, so that the same rules are not necessarily applicable to both.</p> <p>5. Same—Rights of Garnishee.—The garnishee has the right to deduct from the property effects or credits in his hands all demands against the plaintiff and the defendant, that is, against the judgment creditor as well as the judgment debtor, of which he could have availed himself if he had not been summoned as garnishee, and is liable for the balance only after all mutual demands between himself and the plaintiff and the defendant are adjusted, not including, of course, unliquidated damages for wrongs and injuries.</p> <p>6. Same—Nature of Proceedings.—Garnishment is a statutory proceeding, and if the person summoned as garnishee is discharged, the judgment will be no bar to an action brought against him by the defendant (judgment debtor) for the same demand.</p> <p>7. Same—Buies of Common Law Inapplicable.—The requirements of the common law as to pleas in abatement, and the manner of disposing of them, have no application to proceedings in garnishment under the statute; so where another proceeding pending in another court is pleaded in abatement, such plea amounts to no more than a notice to the court of the pendency of the other proceeding, and a request for a continuance or stay of it until the termination of the first suit.</p> <p>8. Same—Replication to Plea o] Another Suit Pending.—Where a party to a proceeding in garnishment filed a plea stating the pendency of another garnishment proceeding against him in another court, and the other party replied that such proceeding in such court had been dismissed, it was held a good answer to the plea.</p>

<p>1. Probate Courts—Powers at Svbseguent Terms.—In the settlement of estates the Probate Court is vested with equitable as well as legal powers. It can, at a subsequent term, set aside an order allowing a claim against an estate, or for equitable reasons set aside or modify an order of distribution.</p> <p>2. Settlements op Estates— What Orders are not Final.—An order of partial distribution is in no sense final so as to deprive the court of the power of correcting errors.</p> <p>3. Same—Competency of Witnesses.—Where, upon the final settlement of an estate, a question arises upon exceptions to the final report as to whether a deduction made from the share of an heir upon a former partial distribution was consented to, such heir is a competent witness.</p>

<p>Trespass on the Case, for personal injuries. Error to City Court of East St. Louis; the Hon. Benjamin H. Canby, Judge, presiding. Heard in this court at the February term, 1896.</p>

<p>Trespass oil the Case.—Death from alleged negligence. Error to City Court of East St. Louis; the Hon. Benjamin H. Caney, Judge, presiding. Heard in this court at the February term, 1896.</p>

Trespass on tlie 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 February term, 1896.

<p>Debt, for a statutory penalty. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1896.</p>

<p>1. Chattel Mortgages—Household Goods.—As to whether property-covered by a chattel mortgage is household goods, is a question of fact for the determination of a jury.</p>

Mortgage Foreclosure.—Appeal from the Circuit Court of Wayne County; the Hon. Carroll C. Boggs, Judge, presiding. Heard in this court at the February term, 1896. Statement oe the Case. On March. 6, 1893, Leonidas Gaither and L. E. Gaither, his wife, two of the appellants, executed to appellee, Wilson, a mortgage on the following property: ÍL W. 1ST. E. Sec. 17, T. 1 S., R. 9 E., and S. half of lots 19 and 20 in Sibley’s addition to Fairfield.

<p>1. Beneficiary Associations—Power of Courts to Examine Their Proceedings.—Where property rights are involved, courts have the power to examine the proceedings of beneficiary associations for the purpose of determining whether the action taken is in substantial compliance with the laws of the order.</p> <p>2. Same—Acts of—When Not Conclusive on Courts of Law.—Where the rules of a beneficiary association provide for the hearing of evidence upon charges against a member, any action taken by such association involving the expulsion of the member without evidence, is not conclusive upon courts of law.</p> <p>3. Same—Construction of By-Lmos.—Where the by-laws of a beneficiary association provide that a member against whom charges are preferred, shall have a fan- trial 'upon evidence, the term evidence must be understood to mean legal evidence by the rules of the common law.</p>

Trespass on the Case.—Damages sustained by the construction of an embankment. Appeal from the Circuit Court of Marion County: the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1896.

<p>Transcript from a Justice of the Peace.—Appeal from the County-Court of McLean County; the Hon. C. D. Myers, Judge, presiding. Heard in this court at the November term, 1895.</p>

Scire Facias, on a forfeited recognizance. Appeal from the Circuit Court of Christian County; the Hon. Jacob Fouke, Judge, presiding. Heard in this court at the November term, 1895. Statement oe the Case.

<p>1. Pleading—Nil Debet in a Suit upon a Replevin Bond.—A plea of nil debet is not proper to a declaration on a replevin bond.</p> <p>3. Same—Suit on a Replevin Bond—No Retorno—Award of Nominal Damages.—In an action on a replevin bond, when the plea traverses the allegation that a return of the goods was awarded, the burden is upon the plaintiff, if he seeks to recover the value of the goods, to show a judgment awarding it, and failing to do so he will be entitled to no more than nominal damages.</p> <p>3. Same—Nvl Tiel Record to a Declaration on a Replevin Bond.— Where a declaration upon a replevin bond contains an allegation of an award of a retorno habendo by a court of record, such allegation is one of a material fact, the burden of proving which is upon the plaintiff if he seeks more than nominal damages. A plea of nul tiel record, is not proper, for the action is not founded upon the record but upon the bond.</p> <p>4. Practice—Replication to Defective Pleas.—Where a party waives the objection to a plea, defective in form by a replication, he can not afterward avail himself of such objection.</p> <p>5. Sureties— On Replevin Bonds.—•'Where the plaintiff in a replevin suit suffers a non-suit and no return of the goods is awarded, the liability of the surety on the bond is limited to the failure of the plaintiff to prosecute his suit with effect.</p>

Proceedings, under the act relating to assignment, for the benefit of creditors. Appeal from the County Court of Fulton County; the Hon. Samuel H. Armstrong, Judge, presiding. Heard in this court at the November term, 1895.

Garnishment Proceeding.—Appeal from Circuit Court of Cass County; the Hon. Lyman Lacey, Judge, presiding. Heard in this court at the November term, 1895. Statement oe the Case.

Assumpsit, on a promissory note. Error to the County Court of Macon County; the Hon. William L. Hammer, Judge, presiding. Heard in this court at the May term, 1896. Statement of the Case. Judgment in the sum of $654.13 in favor of the appellant and against the appellee was entered by confession under a warrant of attorney in the County Court of Macon County in vacation.

<p>1. Cities and Villages—Power to Construct Sewers.—It is within the p.ower of a city to establish a system of sewers, and if, in doing so, a person is damaged, the public should bear the burden. It can not be shifted upon the damaged party.</p> <p>3. Nuisances—Prescriptive Bights.—A city can not acquire a prescriptive right to continue a nuisance.</p>

<p>I. Bridges—County Aid in Building—Abandonment of Plans.— After a county had made an appropriation for the construction of a bridge, the commissioners of highways changed the plans of the bridge to one differing in size, material and location,, and costing more money. Held, .that by such changes the bridge first designed was abandoned and the county relieved from further responsibility.</p>

Trespass on the Case, for killing domestic animals. Appeal from the Circuit Court of Edgar County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1896.

<p>Assumpsit.—Discharge without cause. Appeal from the Circuit Court of Cumberland County; the Hon. Silas Z. Landes, Judge, presiding. Heal'd in this court at the November term, 1895.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cass County; the Hon. Lyman Lacey, Judge, presiding. Heard in this court at the November term, 189o.

<p>1. Guardians—Resignations of.—Under our statute the resignation of a guardian is not a matter of right, -but of permission, by the court appointing him, upon condition that be first settle bis accounts and deliver over the estate as directed by the court.</p> <p>2. County Courts—Jurisdiction to Appoint Guardians.—Jurisdiction to appoint guardians is given to the County Courts in their respective counties as to minors inhabitants of or resident in such counties, and where a guardian is appointed by a County Court having jurisdiction, he can not, of his own motion, when required by such court to give additional security, resign his trust and go into another county and be appointed guardian of the same minor a second time.</p> <p>3. Jurisdiction—Of County Courts—Guardians.—Where a person is appointed guardian by two different County Courts, the one which, by reason of the domicile of the minors, has exclusive jurisdiction in the first instance and actually obtains it, will retain it, and such guardian will be subject to it, exclusively, until lawfully discharged therefrom.</p>

<p>Trespass on the Case, for slander. Appeal from the Circuit Court of Calhoun County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the November term, 1895,</p>

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

<p>Action for Injuring Domestic Animals.—Appeal from the Circuit Court of Scott County; the Hon. CYRUS Epler, Judge, presiding. Heard in this court at the November term, 1895.</p>

Trespass on the Case, for killing domestic aidmals. Appeal from the County Court of HeWitt County; the Hon. George K. Ingham, Judge, presiding. Heard in this court at the November term, 1895.

<p>1. Slander—Evidence of—Subsequent Acts of Adultery.—Under a plea of justification, evidence tending to prove acts of adultery subsequent to the speaking of the words and after the commencement of the suit, is competent, but such plea can not be supported by proof alone of acts occurring subsequently, to the act imputed by the slanderous words.</p> <p>2. Adultery—How Proven.—Adultery may be proven by circumstances from which it may be readily inferred.</p> <p>3. Evidence—Decrees—When Not Competent.—In an action of slander, a decree of divorce granted to the plaintiff from her first husband is not competent as evidence against the defendant, he not being a party to it, or bound by its recitals or findings.</p>

Trespass, for burning a building. Appeal from the Circuit Court of Edgar County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1895. Statement of the Case. The action was trespass by appellants.

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

Trespass on the Case, for personal injuries. Appeal from the City Court of Aurora; the Hon. R. P. Goodwin, Judge, presiding. Heard in this court at the December term, 1895.

Administration of Estates.—Petition to determine the ownership of stock in a corporation. Appeal from the Circuit Court of Knox County; the Hon. Arthur A. Smith, Judge, presiding. Heard in this court at the May term, 1895.

Assumpsit, for the price of an overcoat. Appeal from the Circuit Court of Peoria County; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the December, term, 1895.

<p>1. Negotiable Instruments—Presumptions of Ownership—Possession.—Anote payable to the order of a deceased person and not indorsed by him is prima facie one of the assets of his estate, and the mere unexplained possession of the same is not sufficient to rebut the presumption of ownership.</p> <p>2. Witness—Competency of Administrator.—Where an administratrix is suing to recover money in the hands of an officer of the court which she claims as an asset of her intestate, and the contestant claims the money as a donee of such intestate, such contestant is the adverse party within the meaning of the statute, and the administratrix is a competent witness.</p>

<p>1. Rules oe Court—Failure to Comply With.—When the appellee fails to comply with the • rules of the court in not filing his briefs, the judgment may be reversed and the cause remanded under rule twenty-seven of this court.</p>

<p>1. Contract—For a Warranty Deed—Performance.—Under a contract for a warranty deed a party is entitled to such a deed as his contract calls for, and can not be compelled to accept one coupled with conditions not contemplated by his contract.</p>

Assumpsit, money had and received. Appeal from the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1895.

<p>1. Real Estate Agent—When Entitled to Commissions.—Where an agent employed to sell real estate produces a person who ultimately buys, he is entitled to his commissions, although the trade is consummated by the owner of the property. •</p>

<p>1. Bakes and Banking)—Right to Apply Deposits on Notes.—A person drew checks upon a bank aggregating the amount of his deposit." Before the checks were presented for payment, the bank applied the deposit upon a note it held against the drawer and another person and entered it as a credit thereon. Held, that the bank had the legal right to make such application.</p> <p>2. Same—Drawer and Drawee of Cheeks—Against Deposits.—The drawee of a check upon the drawer’s deposit in a bank is in no better position than the drawer, and if, at the time of presenting the check for payment, the drawer can not recover his deposit, the drawee can not compel payment of the check.</p> <p>3. Promissory Notes—Joint and Joint and Several—Set-off.—A joint promissory note is also joint and several under the statute and one of the makers may be sued alone upon it or it may be sued as a counter claim or set-off against one of the maker’s in an action brought by him against the holder of the note.</p>

<p>Action for Balance of Bent.—Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the December term, 1895.</p>

<p>Indictment.—Error to County Court of Kane County; the Hon. Marcus O. Southworth, Judge, presiding. Heard in this court at the December term, 1895.</p>

<p>Assumpsit, on a lease for rent. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1895.</p>

<p>1. Estoppel—Members of Building and Loan Association.—A person who procures a loan from a building and loan association, and secures the same by a mortgage upon real estate, can not be heard to say, in a suit by the association to foreclose the mortgage, that he is not a member of the association, simply because his application for membership was made through the secretary and his bid for the loan was not signed by him, and so invoke the usury laws of the State.</p>

Trespass on tlie Case, for personal injuries. Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding. Heard in this court at the December term, 1895.

<p>1. Voluntary Assignments—Creditors Not Filing Their Claims Within Three Months.—A creditor of an insolvent, who fails to file his claim within the three months allowed by the statute, can not he allowed to share pro rata in the assets of the estate with the creditors filing their claims in apt time.</p> <p>3. Same—Creditors Pursuing Other Remedies.—The fact that a creditor of an insolvent is mistaken as to the law concerning his right to recover from a person other than the insolvent, is no excuse for the failure to file his claim in the County Court within the time allowed by law.</p> <p>3. Same—Sufficiency of Notice to Creditors.—The fact that a notice for creditors to present their claims, gives three days more time than allowed by the statute for so doing, does not render it void, where it is shown that no creditors are misled thereby.</p> <p>4. Same—Sending Notices to Creditors.—The fact that an assignee of an insolvent fails to send a. notice to the creditor to. file his claim furnishes no excuse for the failure of the creditor to file it as required by law.</p>

<p>Bill for Belief.—Appeal from the Circuit Court of Iroquois County; the Hon. Charles R. Starr, Judge, presiding. Heard in this court at the December term, 1895.</p>

Trespass on the Case.—Death from alleged negligence. Appeal from the Circuit Court of Livingston County; the Hon. Charles E. Starr, Judge, presiding. Heard in this court at the December term, 1895.

<p>Assumpsit.—Goods sold and delivered. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the December term, 1895.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Whiteside County; the Hon. James Shaw, Judge, presiding. Heard in this court at the December term, 1895.

<p>Assumpsit, on contract of guaranty. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1895.</p>

Trespass on the Case, for property destroyed by a mob. Appeal from the Circuit Court of Bureau County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the December term, 1895.

<p>1. Duress— Notes Given Under, Void.—Where criminal process is resorted to for the purpose of enforcing the settlement of a claim, with no intention of enforcing the criminal law, a note given to avoid a threatened arrest and prosecution under it is voidable, and a court of equity will cancel it.</p> <p>2. Process—A.buse of.—Where a creditor resorts to the use of criminal process for the purpose of coercing the father, of a debtor into secui'ing the debt of his son and not for the purpose of bringing an offender against the criminal law to punishment, it is an abuse of process.</p>

Assumpsit, for money paid under misapprehension of facts. Error to the Circuit Court of Winnebago County; the Hon. James Shaw, Judge, presiding. Heard in this court at the December term, 1895.

Bill to Settle Partnership.—Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1895. Statement of the Case. On August 21, 1882, appellant and appellee entered into an agreement to form a copartnership in the mining and vending of coal, and other purposes.

<p>1. Municipal Indebtedness—In Excess of the Constitutional Limit. —A debt created by a municipal corporation for any purpose, to an amount, including the existing indebtedness, in the aggregate exceeding five per centum of the value of the taxable property therein as shown by the previous assessment for State and county purposes, is void, as being prohibited by the constitution.</p> <p>2. Ordinances—Construction of.—An ordinance which provides for the furnishing of water to a city by a private corporation, at an annual rental, payable quarterly,-for the period of thirty years, must be construed as.amounting to a contract for such time as the city may request water to be furnished at an annual rental, payable as. specified, and that the taking of water is optional with the city.</p> <p>3. Municipalities—Power to Create Debts.—A municipal corporation can not.exceed the constitutional limit of indebtedness under the pretext of providing for necessary protection of health and property and current expenses. It can not override the constitutional barrier, under the claim of meeting current expenses, any more than it can create a debt payable in the future.</p> <p>4. Same—Assumption of Debts by Private Corporations.—The assumption of a municipal debt by a water company, and its promise to pay the same, does not extinguish the debt as a liability against the city. That can be accomplished only by the holders of the debt accepting the promise of the water company to pay, and agreeing to release the municipality.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Winnebago County; the Hon. James Shaw, Judge, presiding. Heard in this court at the December term, 1895.

Scire Facias, to make a person party to a judgment. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the December term, 1895. Statement of the Case.

<p>1. Injunctions—Attorney Fees as Damages in Suits on the Bond.— Where an injunction depends on the disposition of the main question in litigation, and is dissolved upon the dismissal of the bill for want of equity, upon a hearing on the merits, and no money has been expended for attorney fees solely on account of the injunction, none can be allowed as damages in a suit upon the injunction bond.</p>

<p>Replevin.—Appeal from the Circuit Court of Livingston County; the Hon. Charles R. Starr. Judge, presiding. Heard in this court at the December term, 1895.</p>

Assignment, for the benefit of creditors. Appeal from the County Court of Kankakee County; the Hon. John Small, Judge, presiding. Heard in this court at the December term, 1895. Statement op the Case. ■ On the 16th of May, 1894, Thomas P. Bonfield, the owner of a tile factory and the real estate on which it was situated in Kankakee county, leased the same to Richard Rosenstock for the period of eight years at a rental of $ 1,500 per annum.

Debt, for the violation of an ordinance. Appeal from the Circuit Court of La Salle County; the Hon. Dorrance Dibell. Judge, presiding. Heard in this court at the December term, 1895.

Assumpsit, for the services of a stallion. Appeal from the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the December term, 1895.

Trespass on the Case.—Death the result of negligence. Appeal from the Circuit Court of La Salle County: the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the December term, 1895.

<p>1. Deed -May be Shown to be a Mortgage.—A deed, though absolute in form, may be shown to be a mortgage.</p> <p>2. Practice—Technical Correctness—Decree for Foreclosure on Cross-bill.—'Where a deed, the subject of a bill and cross-bill, is in fact a mortgage to defendant, and the debt secured by it matures after issues are formed under bill and cross-bill, defendant may, by supplemental cross-bill, have foreclosure in the final decree: and if defendant seeks such foreclosure by amendment to his cross-bill instead of supplement thereto, the decree will not be reversed for such lack of technical correctness in pleading.</p>

Trespass on the Case, for killing domestic animals. Appeal from the Circuit Court of Boone County; the Hon. Charles Kellum, Judge, presiding. Heard in this court at the December term, 1895.

<p>Quo Warranto Proceedings.—Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the December term, 1895.</p>

<p>1. Nominal Damages—Breach of Contract.—Where a breach of a contract is shown, but no damages are proven, nominal damages only cam be recovered.</p>

<p>1. Services—Recovery to be Confined to the Contract.—Where a person entered into the service of a religious community with the understanding that she should receive no secular compensation, but food, clothing and a homo, and if after a fair trial it was found that she could not get along at the community she was to be paid her housekeeper’s wages for such time.as she stayed, upon her being unable to get along at the community, it was held that she could recover only the wages promised, notwithstanding she may have performed services other than as a housekeeper.</p>

<p>Assumpsit.—Breach of promise of marriage. Error to the Circuit Court of Rock Island County; the Hon. Hiram Bigelow, Judge, presiding. Heard in this court at the December term, 1895.</p>

<p>1. Bill of Exceptions—Time of Signing and Sealing.—Where the record fails to show when a bill of exceptions was signed and sealed, it will be presumed that it was presented to the judge and signed and sealed in proper time. Affidavits to show that it was not so signed and sealed can not be allowed to alter or change the record.</p> <p>2. Same—Time of Filing—When Immaterial.—The filing of a bill of exceptions is immaterial so long as it has been signed and sealed in apt time.</p> <p>B. Same—Amendment by Affixing Seal.—After the bill of exceptions has been filed, the judge may, at the term of court, on notice, amend it by affixing his seal.</p> <p>4. Same—Effect of a Refusal to Allow the Bill to be Filed.— The fact that the judge in term tijne, on motion, refused to allow a bill of exceptions to be filed, cannot alter the presumption that it was presented and signed within the required time.</p> <p>5. Same—Signing and Filing.Nunc Pro Tunc.—A bill of exceptions presented to the court within the time allowed and signed after the time, and ordered filed nunc pro tunc, will not be stricken out.</p> <p>6. Practice—Challenge of the Array of Jurors.—Where a party challenged the array of jurors because the same was not properly drawn, and his challenge was overruled, and he afterward asked leave to file his written motion and challenge to the array nunc pro tuna as of the day when the challenge was first made, which the court allowed but refused leave to file affidavits in support thereof, the refusal of leave to file the affidavits was held proper, as they were not presented until after the motion had been passed on and overruled by the court.</p> <p>7. Jurors—For Laio Terms in County Courts.—The irregularity in drawing-a venire of eighteen competent jurors instead of twelve as provided in Sec. 200, Chap.37, R. S., entitled “ Courts,’’ amounts to nothing.</p> <p>8. Same—Overruling Challenge to the Array, When Not Reversible.— Overruling a challenge to the array of the jurors will not be reversible error except where it is shown that a positive injury has resulted in consequence of the refusal of the court to quash the panel.</p> <p>9. Instructions—Presumptions Where They Are Not Preserved in the Bill of Exceptions.—Where the instructions are not preserved in the bill of exceptions, this court will presume that the jury were instructed in such a manner as to correct any improper remarks that may have been made by the court during the trial.</p> <p>10. Trials—Improper Remarles of the Court.—Where no exceptions are taken to the remarks of the judge during the trial, the making of such remarks can not be assigned as error in the Appellate Court.</p> <p>11. Physicians—Not Insurers of Success in Treatment.—A physician is not an insurer of the success of his treatment, and is entitled to pay for his services'whether he succeeds in curing his patient or not, provided he uses the skill of an ordinarily skillful physician. ’</p> <p>12. Appellate Court Practice—Abuse and Charges of Unprofessional Conduct in Briefs and Arguments.—The practice of indulging in abuse and charges of unprofessional conduct, and in making unbecoming and uncalled-for insinuations against the motives of others, by attorneys in their briefs and arguments, does not tend to put their cases in a more favorable light in this court.</p>

<p>1. Trover—For Conversion of Grain in a Public Warehouse.—The fact that grain has been stored in a public warehouse and mingled with other grain, does not defeat the title to the same, or prevent the owner from maintaining trover against one who converts it to his own use.</p> <p>3. Same—Grain in a Common Mass.—Where a number of persons stored oats in a warehouse, which of necessity became mixed with quantities of other oats of like quality belonging to others, each individual retains his title and is entitled to retain the control and ownership of his particular portion of the whole, and neither of the parties has the right to dispose of another’s share of the entire mass without being guilty of a conversion.</p>

<p>1. Trover—Conversion of Grain Mixed with that of Other Owners. —This case follows Howe v. Munson, 65 Ill. App. 674.</p>

<p>1. Trover—Conversion of Grain Mixed with that of Other Parties. -This case follows Howe v. Munson, 65 Ill. App. 674.</p>

<p>Bill to Subrogate Securities, etc.—Appeal from the Circuit Court of Whiteside County; the Hon. John D. Crabtree, Judge, presiding. Heard in this court at the May term, 1896.</p>

<p>Indictment.—Exposure of child. Error to the Circuit Court of Will County; the Hon. Dorranoe Dibell, Judge, presiding. Heard in this court at the December term, 1895.</p>