Volume 67 — Illinois Appellate Court Reports

<p>Mechanic's Lien.—Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Appellate Court Practice—Abstract Must Shoio Error Complained of.—The facts which are relied upon to maintain a suit must be pleaded, and upon appeal must be set out in the abstract, and the Appellate Court will not undertake to supply, from an exceedingly voluminous record, matters which counsel seem to have been unable to find in it, or are unwilling to present as required by the rules of the court.</p>

<p>1. Appeals—From Interlocutory Orders.—The prayer for and allowance of an appeal from an interlocutory, order granting an injunction and appointing a receiver are unnecessary and wholly nugatory. The court has nothing to do with appeals from interlocutory orders.</p> <p>2. Same—From Interlocutory Orders—What they Include.—Where an order was issued enjoining defendants from collecting notes in their hands belonging to the plaintiff upon which they claimed a lien, and an appeal bond filed by defendants recited an appeal from an order appointing a receiver for the property but said nothing in regard to the injunction, it ivas held that the defendants had acquiesced in the injunction, which prevented them from caring for then- own interests or those of the plaintiff in the property, and that under these circumstances the appointment of a receiver was proper.</p>

<p>1. Fellow-Servants—A. Question of Fact.—It is for the jury to determine, under correct instructions defining what in law constitutes the relationship of fellow-servants, the question of fact, whether in a particular case the relationship exists or not.</p> <p>2. Practice—When the Court Should Take a Case from the Jury. —Unless the evidence given at the trial with all inferences which the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such verdict, if returned, must be set aside, the case should be submitted to the jury; and it is only where there is no evidence before the jury on a material issue in favor of the party holding the affirmative of that issue, on which the jury could, under the law, reasonably find in favor of such party, that the court may properly exclude the evidence or instruct the jury to find against him.</p>

<p>1. Consideration—When Material.—When the question in controversy is whether a lease to defendant is for his sole use, as he maintains, or was made to him in trust for the benefit of himself and others, it is not error to deny him the right to testify in regard to the consideration for the lease, as that is not material.</p> <p>* 2. Sales—Who Responsible for Proceeds of.—Where two persons hold separate properties in trust for the same purpose and join in one instrument, disposing of them for a bulk consideration, it is proper to enter a decree against them jointly for the entire proceeds of such sale.</p> <p>3. Purchasers—When Protected Against Equities.—Receiving a conveyance in payment of a pre-existing debt, is not sufficient to transfer a title against a superior equity, where there is a collision of bona fide claims.</p> <p>4. Payment—When Enforced.—Payment of the stipulated price for property sold will be enforced, although the title to the property was not transferred in the precise way stipulated in the contract.</p>

<p>1. Trespassers— Upon Railroad Tracks. —A railroad company is not liable for injuries to persons trespassing upon its right of way, unless the acts resulting in such injuries are wantonly or willfully committed.</p> <p>2. Amendments— When Properly Refused.—When, after all the evidence in a case was in, the plaintiff moved to amend his declaration but the court refused to allow the amendment, and it appeared from the record that if the case had been left to the jury upon the evidence and a verdict rendered in favor of the plaintiff it would have been set aside, even if the amendment had been allowed, it was held that the amendment was properly refused.</p>

<p>Bill, to settle an estate. Error to the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Bill for Belief.—Appeal from the Superior Court of Cook County; the Hon. Elbbidge Hanecy, Judge, presiding.</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>1. Master and Servant.—Reliance by the Servant upon Promises of the Master.-—When the danger of a service is increased by the machinery becoming unprotected, either by accident or from any other cause, the servant complains and the master promises that the protection shall be restored, it must be considered that the master takes upon himself the responsibility of any accident that may occur during the period.</p>

<p>1. Courts of Chancery—Jurisdiction in Issuing Writs of Assistance. —A court of chancery can not, in a proceeding to put a purchaser at a m ortgage foreclosure sale into possession, try a question between totally independent titles.</p> <p>2. Equity Practice—Affidavits, When a Part of the Record,— Affidavits filed and read in a cause are a part of the record and do not require to be preserved by a certificate of evidence.</p> <p>3. Decrees and Orders—Must be Supported by the Record.—An order or decree in equity must find support and justification either in the facts sufficiently found by it or by evidence appearing in the record, and facts shown by the record can not be overcome by a recital of only a part of them in the order made. The whole record must be looked at.</p> <p>4. Writs of Assistance—When Improper to Award.—When a party does not come into possession of premises pendente lite, under any party to the suit, but enters under one who was neither a party nor privy, claiming an independent title to the premises in question, it is error to award a writ of assistance against him.</p>

<p>1. Mortgages—Assignable—Subject to Equities.— While a promissory note, if assigned in good faith, and for value, before it comes due, is divested in the hands of the assignee of any equities existing between the maker and the assignor, a mortgage given to secure such a' note is not assignable except in equity, and when assigned is subject to whatever equities existed between the assignor, and the maker of the note which the mortgage is given to secure, at the time of the assignment of such note.</p>

<p>Motion, to quash execution. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>Action for Personal Injuries.—Error to the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>1. Statutes of Other States—Must be Pleaded.—The courts of this State do not take judicial notice of the statutes of other States, and when a party relies upon such a statute he must plead it, and its terms so far as relied upon must be set forth.</p> <p>. 2. Practice—Mistake in an Affidavit, When Objectionable.—A copy of an affidavit asking to have a suit placed upon the short cause calendar need not be served with the notice required by the statute, and a mistake in such an affidavit so served, is not ground for complaint, unless some one has been injured thereby.</p>

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

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

<p>Trespass on the Case, for personal injuries.. Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Trespass oil the Case.—Death from negligence. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>1. Instructions—Undue Emphasis Objectionable.—An. instruction which singles out and calls attention to certain important matters favorable to one of the parties to a suit, and omits to notice most important evidence given by the opposing party, is objectionable.</p> <p>2. Ordinary Care—Time at Which it Must be Exercised.—In an action for personal injuries based upon the negligence of the defendant, the question submitted to the jury is not so much what the injured person was doing at the “ instant ” he received the injury complained of, as under what circumstances he came to be at a place where the injury received was at that place and “ instant ” inevitable, and an instruction which may convey a contrary impression is bad.</p> <p>3. Practice—What Papers Jury May Not TaJce.—In an action brought by the administrator of a deceased person for negligently causing the death of such person, when the jury retire to consider as to a verdict they should not be allowed to take with them depositions or a plat attached to a verdict of a coroner’s jury, called to consider as to the cause of the death of the deceased, nor should any comments of a coroner’s jury upon the situation at the place where the injury was inflicted, or the conduct of the defendant, be considered by the jury or taken to its room.</p>

<p>Trespass on the Case, for personal injuries. Error to the Superior Court of Cook County; the" Hon. Arthur H. Chetlain and the Hon. Nathaniel C. Sears, Judges, 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>1. Motions—Bow Made.—A. motion is properly an application for a rule or order, made viva voce to a court or judge; it need not be reduced to writing and filed.</p>

<p>1. Equity Practice—Evidence and Relief Must Follow the Pleadings.—A plaintiff can not file a bill upon one state of facts, and have relief upon another and different state of facts.</p> <p>2. Deeds—Executed as Security—Equity may Grant Relief.—A court of equity will relieve against a deed shown to have been given as security for a debt, upon payment of the debt.</p>

<p>1. Remedies—When by Appeal.—When a judgment by a justice of the peace is entered by default upon an irregular summons and the defendant has notice of such default and judgment in time, his remedy is by appeal. A bill to restrain the collection of the judgment will „not lie.</p> <p>2. Judgments—Will Not be Set Aside for Irregularities Unless Unjust.—Unless a judgment is unjust equity will not set it aside on account of irregularities-as to the service of the summons.</p> <p>8. Woeds and Phrases—“ If They do the Work.”—A. letter ordering smoke consumers contained the following, among other clauses : “If we find they do the work * * * we will take same and pay,” etc., and “ if we do not take the same you are to remove,” etc. It was held, in a suit to collect the price of the consumers that if they in fact did “ the work ” the defendant was bound to so find and to take and pay for them.</p>

Voluntary Assignment.—Error to the County Court of Cook County; the Hon. Charles H. Donnelly, Judge, presiding. That part of the contract over which the controversy in this case arose, which is considered by the court, is as follows: 12th.

<p>1. Limitations—Actions for Damages—Death from Wrongful Act.— Actions for personal injuries, under section fourteen of chapter eightytliree, R. S., entitled “Limitations,” do not include actions for damages under chapter seventy, R. S., for death caused by a wrongful act. Such actions are not for the injury suffered, but for the pecuniary loss to the widow and next of kin.</p> <p>2. Same—Time Not Extended by a Non-suit.—Actions for damages resulting from the death of a person caused by the wrongful act of another, may be commenced within two years after such death. The time is not extended by a non-suit in a previous action.</p>

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

<p>1. Contracts—Recovery on Partial Performance—Abandonment.— Where a party fails to perform his part of a special contract so as to prevent the other from, fully performing, the latter may abandon the contract and recover in assumpsit for what he has done under it, whenever, except for the special contract, assumpsit may be maintained.</p> <p>2. Special Contracts—P leadings in Action Upon.—Where a contract is open and unexecuted the plaintiff must specially set it out and aver a breach of the same, but where the contract is at an end either by its own original term or by the subsequent consent of the parties, or by the unjustifiable acts of the defendant, and nothing remains but to pay money, indebitatus assumpsit will lie although the debt accrued under a special contract.</p> <p>3. Verdicts—Upon Conflicting Evidence, Conclusive.—Where the jury hear conflicting evidence and see the witnesses, their verdict as to the truth of the matter under consideration may be regarded as conclusive.</p>

Replevin.—Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. This case was begun before a justice of the peace, as an action of replevin. The constable being unable to find the property, a judgment in trover for the plaintiff for $100 was rendered by the justice. Upon appeal to the County Court, a trial was had before a jury, who returned a verdict of $81 damages, upon which appellee had judgment.

<p>1. Alimony—Must be for the Benefit of the Wife.—All orders for alimony or suit money against a husband as party to a divorce suit must, so far as the record shows, be in favor of, or for the benefit of, the wife herself. Parties supplying her with food, clothes and lodging during the pendency of the suit can not come to the court for compensation.</p>

<p>1. Household Goods—The Term Defined.—The term “ household goods,” as used in the act of July 7, 1889, “to regulate the foreclosure of chattel mortgages on household goods, wearing apparel and mechanic’s tools,” means such goods as, being suitable to the condition and station in life of the mortgagor and the way he lives, are used by him in his household for personal, home or household convenience.</p> <p>2. Same—What Are Not Household Goods.—Goods which are kept for mere purposes of trade or business, are not within the meaning of the act.</p>

<p>1. Assignments—For Use of Assignor, Void.—If the purpose of an assignment, concurred in by both the assignor and the assignee, is to place the property assigned either wholly or in part under the after control of the assignor, the assignment is void against creditors of the assignor.</p> <p>2. Same—Effect of. on Litigation.—An assignment of a fund which does not change the legal title, will not prevent a suit by the assignor, but the court on the equities between the assignor and the assignee, may permit the latter to control the action.</p> <p>3. Garnishment—Claims by Assignee of a Fund, How Litigated.—It is not an obstacle to a garnishment, that an assignment which has net changed the legal title, has been made of the fund, but the assignee may set up his title by interpleader when the validity of such assignment as vesting a prior equity in the assignee will be tried.</p>

<p>1. Injunctions—What Are Not Impediments to Granting.—The fact that a certificate is in custodia legis and the custodian is the party interested in evading the claims of third persons upon such certificate, is no impediment to such restraint upon such custodian, as may be prudent to prevent wrong-doing.</p> <p>2. Assignment of Errors—Must he Special.—Where a part of an order enjoining the prosecution of a replevin suit is valid and the assignments of error upon it are in effect that the whole order is invalid if the order is in part right, the assignments must be overruled.</p> <p>3. Trover—Lies for Property Not Taken in Replevin.—Where property has not been taken in replevin, the plaintiff may proceed in trover for it, or if taken and the replevin suit is not prosecuted successfully, and the property not returned, the plaintiff may maintain trover for it.</p> <p>4. Measure of Damages—Conversion of Certificates of Stock.—In actions of trover for the conversion of certificates of stock as between the owner and the wrongdoer, the measure of damages is the value of the stock represented by the certificate.</p>

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

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

<p>1. Lost Records—How Restored.—If any portion of the record of a cause is lost the court may restore it on the application of a party interested, but parties opposed in interest should have reasonable notice and an opportunity to ascertain whether the loss is to be truly supplied.</p> <p>3. Practice—Error, how Shown.—Before this court can reverse a decision of a lower court, it must affirmatively appear that the court below erred.</p> <p>8. Same—Contents of Lost Pleading—How Proven.—It is not error to refuse permission to file an alleged copy of a pleading which has been lost; and an affidavit of the correctness of the copy is not sufficient, but affiant should be sworn as a witness and subject to cross-examination when his statements regarding the contents of the lost paper will be competent evidence.</p> <p>4. Garnishment—Relative Rights of Garnishing Creditor and Inter-pleader.—Between a garnishing creditor and an interpleader, any transaction not tainted by fraud in fact, which gives to the interpleader, as against the original debtor, the fund in question, is good against the garnishment.</p> <p>5. Payment—Burden of Proof.—Payments upon a debt are affirmative facts to be proved by the party claiming the benefit of such payments.</p> <p>6. New Trials—Diligence as to Newly Discovered Evidence.—Before a new trial will be granted on account of newly discovered evidence the proof must negative every circumstance from which negligence can be inferred. An affidavit stating that diligent search for the desired evidence was made, is not sufficient, as it gives the court no information as to the efforts made, but only the opinion of the affiant of his diligence.</p>

<p>1. Questions of Fact—For the Jury.—Whether an elevator was furnished with the best safety devices known and in use at the time of an accident, and whether a defect in those appliances or devices was a latent one, and such as had not been and could not be, discovered upon due inspection, nor by the application of the usual and recognized tests of science in that behalf, are questions of fact for the jury.</p> <p>2. ' Instructions—Must he in Writing.—Oral instructions are not permitted under our statute, and the court is not bound to heed an oral request that the jury be instructed in any particular.</p> <p>3. Practice—Reasons for New Trial.—Errors which are relied upon as grounds for reversal should be brought to the attention of the trial court in the written reasons filed in support of a motion for a new trial.</p>

<p>Administration of Estates.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.</p>

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

<p>Trespass on the Case, for personal injuries. Error to the Superior-Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>1. Equity Practice—When a Decree will not be Disturbed on Appeal.—The decision of a chancellor who heard and saw the witnesses will not be disturbed on appeal where the evidence is voluminous, conflicting and irreconcilable.</p>

<p>1. Pleading— What Need Not be Proven. —In a suit against a railroad company, for negligence, where the declaration charged that the “ defendant permitted its track to be and remain out of repair, and dangerous for the running of cars thereon,’" and that “ said train was improperly and insufficiently manned and lighted,” it was held, that, whether proof of the latter charge was made or not, was, after verdict, immaterial.</p> <p>2. Negligence—Master’s Failure to Keep Property in Safe Condition.—In a suit by a servant against his master, based on personal injuries resulting from an accident caused by a defective condition of the property of the defendant, where the defective appliances were not used by the plaintiff, it is not necessary to prove that the defendant had notice of their defective condition; it is sufficient for the plaintiff to show that the defendant, by the exercise of reasonable diligence, might have known of the defective condition complained of. .</p> <p>3. Pleading—What a Sufficient Allegation of Ordinary Care.—An allegation that a plaintiff “ was in the usual and ordinary course of his employment,” amounts to a statement that he was in the exercise of ordinary care.</p> <p>4. Same—Failure to Plead Ordinary Care Cured by Verdict.—A failure to allege that a plaintiff was in the exercise of ordinary care, is cured by a verdict in his favor.</p>

<p>Transcript, from justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding.</p>

<p>1. Voluntary Assignments—Time Allowed to Take Possession of Property.—An assignee appointed under our statute concerning general voluntary assignments by insolvents for the benefit of creditors, has a reasonable time in which to gain possession of the assigned property, and is not required to run a race with other claimants, in order that by first obtaining possession'his title may be made perfect.</p> <p>2. Deeds—Presumption as to Delivery and Acceptance—When They May Bs Ributted.—It will be presumed that a grantee will accept a deed which is beneficial to him, and where a deed has been properly acknowledged and recorded, a delivery will be presumed; but these presumptions will yield to the facts which may be established.</p> <p>3. Deeds—Acceptance—Effect of, on Liens.—An acceptance of a deed is essential to pass title to property intended to be conveyed thereby, and if a lien attaches to property conveyed by deed after the deed is signed and recorded, but before it has been accepted, such lien will not be divested by a subsequent acceptance.</p>

<p>Debt, on an appeal bond. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding.</p>

<p>1. Practice—Verified Denial of Indorsement—When it May he Filed.—It is not error to allow an affidavit denying the genuineness of an indorsement to be filed after the evidence is closed, when the absence of such an affidavit is then for the first time urged as an objection to a finding in favor of alleged indorsee.</p> <p>2. Checks—Acceptance of—What Sufficient Proof of.—Proof that a bank had paid a check to an unauthorized indorser and had charged it to the account of the drawer, who at the time of such payment had sufficient funds on deposit to meet it, constitutes sufficient proof of an acceptance of the check by the bank and renders it liable to the payee for the amount thereof.</p> <p>3. Indorsements—Authority to Make—Presumptions Regarding.— Possession of a check affords no presumption of authority to indorse it, nor would authority to accept a check include either express or implied authority to indorse it, and the burden of showing the authority of a stranger to a check to indorse the same for the payee is upon the drawee if he would escape liability to pay it over again to the payee.</p>

<p>Assumpsit, on the common counts. Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>1. Equity Practice—Cross-bills—When They May be Filed.—A cross-bill is the only means, in equity practice, for a defendant to interpose matters arising after the filing of the original bill, by way of defense and for affirmative relief.</p> <p>• 2. Same—Interlocutory Orders—An Order Dismissing Cross-bill is Interlocutory.—An order sustaining a demurrer to a cross-bill, and dismissing it, is interlocutory, and not reviewable so long as the original bill is undisposed of.</p> <p>3. Same—Dismissal of Original Bill—Effect on Cross-bill.—The connection of the matter of a cross-bill with the subject-matter of the original bill, gives the court jurisdiction of the cross-bill, of which it can not be ousted by a dismissal of the original bill. ,,</p> <p>4. Same—Cross-bills, to Enforce Legal Rights—-When Maintainable. —Although a cross-bill sets up purely legal rights, the original complainant, having brought the complainant in the cross-bill into equity upon matters of purely equitable cognizance, can not be heard to question the jurisdiction of equity over the matters set up in the cross-bill, if they be germane to the original bill.</p> <p>5. Promissory Notes—When Payment is Ground for Cancellation by Court of Equity.—The maker of a note which has been paid by a third party, in accordance with an agreement between said persons, should not be required to wait an attack, but should be entitled to use the facts upon which he relies, if they be sufficient, as an offensive weapon to obtain the cancellation and surrender of the note.</p>

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

<p>1. Motions—How Made.—Motions should be entered by the clerk, or filed, so that they can be called up by either party. Sending a written motion to a judge is not equivalent to filing it in his court, as the judge is not the custodian of the files or the keeper of the records.</p> <p>2. Judgments—When Collection Not to be Enjoined.—The collection of a judgment will not be enjoined, when, by the exercise of diligence, the party could have presented his defense.</p>

<p>1. Insurance Policy—Equity Will Relieve. Assignee Against Fraudulent Transfer.—An insurance policy is assignable in equity, and an assignee for value contending against mere volunteers, whose claim came into existence through the fraudulent conduct of their donor, has a clear right to relief, and it is not necessary that the holder of the fund who still retains possession of it should have been notified of tlie assignment.</p>

<p>1. Master and Servant.—Employment of incompetent servants— Proximate cause.—If a master knowingly employs an incompetent servant, who, by reason of such incompetency injures another, the cause of the injury is the employment of the incompetent servant.</p>

<p>Bill, to foreclose mortgage. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Voluntary Assignments—Distribution of Assets—Powers of Court and Assignee.—Neither the court nor the assignee can create charges against an insolvent estate, other than expenses; they can only allow such as already exist by virtue of past transactions.</p>

<p>1. Pleading—Effect of Allegations not Sustained by Proof.—The right of recovery for an injury is not destroyed because the declaration in a suit in which it is sought to recover for such injury contains an allegation of another cause of action which the evidence does not sustain.</p> <p>2. Practice—Objections to Judgment—When and How to be Raised. —The objection that a judgment against several defendants is not sustained by the evidence as to all of them can not be raised for the first time on appeal, and a statement in a motion for:a new tidal that there was no evidence to sustain a verdict against the def andants and that the verdict was contrary to the evidence is not sufficiently specific.</p>

<p>1. Appeals—From Interlocutory Orders—What Question Raised by. —An appeal from an interlocutory order appointing a receiver does not raise the question whether other relief prayed by a bill should be granted.</p> <p>2. Corporations—A Creditor*, Whose Debts are Not Due, May Have Receiver Appointed.—A simple contract creditor may file a bill to dissolve a corporation and appoint a receiver to wind up its affairs under the provisions of Sec. 25 of Chap. 32 R. S., nor does it matter that none of his debts are due. Proceedings under this section are for the benefit of all the creditors pro rata of an insolvent corporation.</p>

<p>Trespass, for false imprisonment. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding.</p>

<p>Trespass on the Case, for a fálse return. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>Assumpsit, on the common counts. Appeal from the Circuit Court of Cook County; the Hon. Celarles Gr. Neely, Judge, presiding.</p>

<p>Assumpsit, for work and material. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Replevin from Sheriff.—Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding.</p>

Bills in Chancery.—Interlocutory orders. Appeals from Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding in the first, second, third, fourth and sixth cases. Appeal from the Circuit Court of Cook County; the IJon. Elbridge Hanecy, Judge, presiding in the fifth case.

<p>1. Practice—Refusal to Allow Filing of Plea—When Proper.— Where a defendant admits an indebtedness to the plaintiff, it is not error to refuse him leave to plead. The question being as to the amount due, can just as well be tried-upon the assessment of damages, without a plea as with one.</p> <p>2. Same—Motions for Neio Trial—When Not Necessary.—Errors of law committed by the judge during the progress of the trial, and duly excepted to at the time, may be assigned for error in an Appellate Court, though no motion for a new trial was interposed in the trial court.</p> <p>3. Same—Bond for Costs—When Failure to Require Not Ground for Complaint.—It appearing from a defendant’s own affidavit that a judgment for some amount should be rendered against him, a refusal to require a non-resident plaintiff to file a cost bond could, under no circumstances, injure such defendant, and he can not complain.</p> <p>4. Evidence—What Competent to Prove State of Account.—A witness who states that he is not familiar with the deliveries of goods by the plaintiff to the defendant, but is familiar with the plaintiff’s books and knows “something near” the amount of goods delivered, should not be allowed to state the condition of the account between the parties without reference to the books.</p>

<p>1. Words and Phrases —Appeal Bonds—Construction—The legal effect of the words, in an appeal bond that the obligor will pay the amount of “ judgment, costs, interests and damages rendered and to be rendered against him,” is that he shall pay the judgment already rendered against him, and such judgment as shall be rendered against him by the Supreme Court in case the judgment appealed from shall be affirmed. Such words do not include a judgment thereafter rendered upon new evidence on a hearing de novo, as to the subject of such judgment.</p>

<p>1. Equity Practice—Allegations and Proofs.—In equity practice the allegations and proofs must correspond. A party will not be entitled to relief although the evidence may establish a clear case in his favor, unless there are averments in his bill to support the case made by the evidence.</p> <p>2. Variances—The Rule in Equity.—In equity a variance between the pleadings and proofs need not be specifically pointed out in the court below in the first instance, in order to raise the question in the Appellate Court. The rule in equity in this respect is different from what it is at law.</p>

<p>1. Voluntary Assignments—Effect of Dismissal of Proceedings upon Dissenting Creditor.—As against the subsequent dissent of a non-assenting creditor, the order of the County Court dismissing the proceedings under the assignment of the debtor, if made before the expiration of three months allowed to creditors to present their claims, is ineffectual as a bar to any effort by such creditor to obtain his portion of satisfaction from the assets.</p> <p>2. Same—When a Majority in Number and Amount of Creditors May be Ascertained.—Under section 2 of the act concerning voluntary assignments, creditors have three months in which to present their claims, and until that period has elapsed it is impossible to tell what constitutes a majority of the creditors “ in number and amount,” so as to comply with section 15 of such act.</p>

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

<p>Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>Assumpsit, on a special contract. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.</p>

<p>1. Verdicts—Not Set Aside for Mere Irregularity.—A mere informality or mistake of an officer in drawing a jury, or mere irregularity or misconduct of the jurors themselves, is not sufficient ground for setting aside a verdict where the party complaining could not have sustained injury thereby, or where the irregularity is one of which the party was aware, and failed to object to, or could, had he attempted, have prevented.</p> <p>2. Juries—Must be Composed of Persons Designated According to Law.—A verdict not rendered by the persons designated and selected according to law, but by others who, by means of fraudulent practices, obtained seats in the jury box, heard the evidence and returned a verdict, having no right or authority to do so, and a judgment entered in pursuance of such verdict, should be set aside upon the motion of the injured party, if he be innocent of the iniquity.</p> <p>• 3. Verdicts—Rendered by Illegal Jury—Effect of.—Where the facts in controversy have not been determined in accordance with the law, or by such a jury as the parties have a right to be heard by, the verdict and judgment can not stand, and the court will not inquire whether they are, as between the parties, just or riot.</p>

<p>1. Landlord and Tenant—Ownership of Fixtures.—Where a tenant erected upon the demised premises certain buildings, structures and fixtures, and afterward took another lease for the same for five years, and which was extended twice after its expiration, each time for one year, without any reservation of the right to remove such buildings, structures and fixtures, it was held, in condemnation proceedings, that the buildings, structures and fixtures in question belonged to the landlord, and that he and not the tenant was entitled to compensation for the same.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit bourt of Cook County; the Hon, Richard S. Tuihill, Judge, presiding.</p>

<p>Assumpsit, upon special and common counts. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

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

<p>Transcript, from justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Chattel Mortgages—Sale of Mortgaged Goods Without Written Consent.—It being a crime punishable by imprisonment for a mortgagor, without the written consent of the mortgagee, to sell the mortgaged property, the court is of the opinion that an offer on the trial to show a verbal consent to such salé, was properly refused.</p>

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

<p>Interlocutory Order, appointing a receiver. Appeal from the Superior Court of Cook County; the 'Hon. Theodore Brent ano, Judge, presiding.</p>

<p>Petition for Mandamus.—Original proceedings.</p>

<p>Mechanic’s Liens.—Motion for damages on dismissal of an appeal in this court. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Limitations—New Promise may be Implied.—la order to take a case out of the statute of limitations there must be a promise to pay the debt, but such promise may be implied from an unqualified admission that the debt is due and unpaid.</p>

<p>Order, extending time to file a bill of exceptions. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.'</p>

<p>1. Appeals—From Orders Dissolving Injunction.—An appeal does not lie from an order dissolving an injunction unless the injunction is the .only relief sought, or there has been a final decree entered disposing of the bill.</p> <p>3. Injunction—Continuance on Appeal.—The Appellate Court will not continue an injunction on an appeal where it has no jurisdiction of the appeal.</p>

<p>Appeal from the Superior Court of Cook County.</p>

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

<p>1. Bastardy—Examination before Justice—Appeals and Further Arrests.—No appeal lies from a judgment of a justice of the peace discharging the reputed father of an illegitimate child from an arrest made on a warrant for bastardy, and such a discharge is not a bar to another arrest for the same offense.</p>

<p>1. Corporation— Who Authorized to Sign Notes for.—The president and secretary are the usual and proper agents of a corporation through whom its name is, and should be affixed to its promissory notes. These officers have, by virtue of their offices, authority to execute promissory notes of the corporation, unless them authority in that respect is specifically limited.</p> <p>2. Construction—Of Instruments in Writing.—In construing a written instrument, effect must be given, if possible, to every word.</p> <p>3. Corporations—Officers not Liable on Contract on Behalf of, if Authorized. —Where a party signs his name as officer or agent of a corporation to evidences of indebtedness executed in its ordinary business, if it appears that it is the obligation of the corporation, and the agent or officer had authority to bind the corporation, he is not personally liable.</p> <p>4. Assignment of Error—By Plaintiff—On Judgment in His Favor. —A plaintiff may assign for error the rendition of a judgment in his favor against one of several defendants who have been sued jointly as the makers of a promissory note.</p>

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

<p>1. Evidence—Error in Admission of, Cured by Subsequent Testimony.—An error of the trial court in the admission of testimony may be cured by the subsequent testimony of the witness.</p>

<p>1. Consolidation of Claims—Before Justice of the Peace.—Where a party who held two accounts against another, the total amount of which did not exceed the jurisdiction of a justice of the peace, postponed the time of payment of one by mutual agreement with hie debtor, and commenced a suit ujion the other before a justice of the peace which he prosecuted to final judgment, it ivas held that the judgment so recovered was not a bar to a suit upon the other account, the payment of which was postponed by agreement.</p>

<p>1. Criminal Law—Lewdwess, When Deemed to he Open.—Lewdness is deemed to be open only when it is committed in the presence of another, or in a place open to the public view.</p> <p>2. Criminal Pleadings—Srtfficieney of Information Under the Statute.—If the language of the statute sufficiently describes the act constituting the offense, then no more is required than that the words of the statute be employed in the information or indictment; but where the statute does not so describe such acts, the information or indictment must specifically set them forth.</p> <p>3. Same—Information for Lewdness.—An information for lewdness, under section 55 of the criminal code, which does not contain averments that a notorious act of public indecency was committed, is fatally defective.</p>

<p>Assumpsit, for value of property converted. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.</p>

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

<p>Trespass on the Case, for a nuisance. Appeal from the Circuit Court of Edgar County; the Hon. Ferdinand Bookw alter, Judge, presiding.</p>

<p>1. Landlord and Tenant—When the Tenant May Deny his Landlord’s Title.—The rule that a tenant may not deny his landlord’s title has no application when the tenant at the time of executing the lease creating the relation was in possession of the premises under another, and was induced to execute the lease in question by artifice or fraud.</p> <p>2. Parol Evidence— When Competent to Impeach a Lease.—Upon the trial in an action of forcible detainer, it is competent for the defendant to introduce parol testimony to support his assertion that he was induced to execute the lease creating the relation of landlord and tenant between the parties by reason of the fraudulent misrepresentations of the plaintiff as to material facts affecting the subject-matter of the lease.</p>

<p>1. Execution—Levy of—When Not a Satisfaction.—The levy of an execution upon personal property of the debtor, of value sufficient to satisfy the debt, operates as a satisfaction for the time being, but if the levy is released by agreement and consent of the execution debtor, and the property is applied to other purposes, so that the fruits of the levy are lost to the creditor in consequence, there will be no satisfaction of the judgment and execution.</p>

<p>1. Sidewalks—Rightto Use, Although Known to he Out of Repair.— Notwithstanding the fact that a person has knowledge that a sidewalk is out of repair, he still has theright to travel upon it, if, in so doing, and under all circumstances, he exercises the care of a reasonably prudent person.</p> <p>3. Cities and Villages—Notice of Dangerous Sidewalks.—The question as to whether the officials of a city or village would have known of dangerous places in sidewalks, if they had exercised proper vigilance, is one of fact for the determination of the jury.</p> <p>8. Evidence—Opinion of Witnesses—When Immaterial.—After a witness had testified that he had frequently passed the place in question on the sidewalk, and had seen nothing wrong, what he thought as to whether he would have noticed the defect, if there, is wholly immaterial, and to ask for his opinion on the point is to violate a general principle in the law of evidence.</p> <p>4. Instructions—Married Woman’s Loss of Time, etc.—Conceding that the amount lost by reason of a married woman’s inability to perform her usual duties during her illness resulting from an injury can not be recovered by her, yet an instruction which states that the jury may take into consideration her loss of time, and her pain and suffering, etc., is not substantially objectionable, especially where the damages assessed are not excessive.</p>

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

<p>Transcript, from a justice of the peace. Appeal from the County Court of McLean County; the Hon. O. D. Myers, Judge, presiding.</p>

<p>1. Criminal Law—Bucket Shop—Intention of the Keeper Immaterial.—Under the act to suppress bucket shops it is not necessary to show the intention of the keeper of the place to bring the business within the prohibition of the statute. It is' no longer possible in this State, under any shift or device, however specious, to keep a place where parties may, under the pretense of buying or selling grain of other produce, engage in speculation in futures and gamble upon the rise and fall of the market.</p>

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

<p>Assumpsit, on an insurance policy. Appeal from the Circuit Court of Brown County; the Hon. Jefferson Orr, Judge, presiding.</p>

Assumpsit, for damages for failing to take premises on a bid at a judicial sale. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.

<p>Assumpsit.—Wrongful discharge. Appeal from the Circuit Court of Champaign County', the Hon. Francis M. Wright, Judge, presiding.</p>

<p>Trespass on the Case.—Death from negligence. Appeal from the Circuit Court of Fulton County; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>1. «Judgments—When Not Void for Uncertainty—Interest.—While section three of chapter seventy-four, R. S., entitled “ Interest,” provides that when judgment is rendered upon a verdict, interest shall be computed from the time of the rendition of the verdict to the time of rendering the judgment on the same, and made a part of the judgment, yet a judgment is not void for uncertainty because the interest is not so computed.</p> <p>2. Practice—Dismissal as to One Defendant—Effect on Pleadings.— The dismissal of a suit as to one of several defendants, sued jointly, is to be treated as, in effect, striking from the declaration all averments against such party.</p> <p>3. Variance—Questions of, Must be Raised in the Court Below.—The question of a variance between the pleadings and the proofs must be raised in the trial court. It can not be made for the first time in' the Appellate Court.</p> <p>4. Declaration—Defective Averments.—Defective averments of a declaration should be specifically pointed out, either by demurrer or by a motion in arrest in the trial court, so that they may be there obviated by amendment or otherwise. Such objections can not be made for the first time in the Appellate Court.</p> <p>5. New Trials—Newly Discovered Evidence.—Newly discovered testimony, which would have been useful merely for the purpose of contradicting the plaintiff, and not necessarily conclusive, is not sufficient to entitle a party to a new trial.</p>

<p>1. Negligence—Deviations from Established Customs Without Warning.—When the servants of a railroad company, in violation of a long established and well recognized custom, back a train in and upon a coal track, and after putting it in rapid motion detach empty cars and allow them to move at a dangerously rapid rate of speed along such track, warning of the intention to deviate from such custom should be given by means of the bell and whistle.</p> <p>2. Variances—Should be Pointed out Specifically.—The objection of a variance is technical and should not be favored. A motion to exclude evidence on the ground of a variance between the proofs and the pleadings which does not indicate in what the supposed variance consists, but alleges only in general terms that a variance exists, is properly overruled.</p> <p>3. Words and Phrases—“Proper Precaution” and “Reasonable Care.”—The use of the words “proper precaution ” instead of “ reasonable care ” in an instruction in an action for personal injuries, although, perhaps, subject to criticism, is not error as misleading or warranting the jury in exacting the performance of any and every act which would have avoided the injury in question, especially where, in other instructions, only ordinary and reasonable caution, care, etc., are required.</p> <p>4. Special Interrogatories—Submission of, When Properly Refused.—The submission of a special interrogatory which calls for the finding of mere evidentiary facts is properly refused.</p>

<p>1. Warranty—Sale of a Harvesting Machine—Waiver.—The provisions of a warranty in the sale of a harvesting machine, “ that if upon starting the machine it should not work well, immediate written notice must be given,” etc., are waived by a subsequent agreement that the purchaser should start the machine, and the sellers and an agent of the machine company would come and see that it was working properly, and if not, would remedy the defects, and by the fact that they did come, and acted upon such agreement without written notice.</p> <p>2. Same—When its Provisions Can Not be Invoiced.—The provisions of a written warranty, on the sale of a harvesting machine, that “ continued possession of the machine” shall be deemed conclusive evidence that the machine “fills the warranty,” can not be invoked when such possession is continued with the consent of the vendors after the machine is found defective, and in order to allow them time to replace defective portions of the machine.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>1. Practice—Waiver of Demurrer—Defective Declaration.—By pleading over, a defendant waives his demurrer and can not assign as error the action of the court thereon; but if the declaration is so defective that it will not support a judgment, the question may be raised by motion in arrest, or on error assigned in a court of appellate jurisdiction.</p> <p>2. Sewers—Cities—Due Care in Constructing—Negligence, When Inferred.—When a city undertakes to build a sewer and compels the abutting property owners to pay the sums assessed against them for that purpose it becomes bound to use due care to so construct the sewer with reference to its size, and fall, and the inlets, that it will carry away the drainage for the designed district, and if, in case of the ordinary annual rainfalls the sewer proves to be insufficient, it may be inferred that there was negligence in the construction of the same.</p> <p>3. Sams—Extraordinary Floods.—It does not devolve upon a municipal corporation when constructing a sewer to provide against such extraordinary floods as are not to be expected, but the heavy rains which occur every year, as a general rule, should be expected and provision should be made accordingly.</p>

<p>1. Freehold—Perpetual Easements.—A perpetual easement is a freehold in land, and this court is without jurisdiction to entertain an appeal concerning such an easement.</p>

<p>Action, to recover a statutory penalty. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Dram Shop Act—Liability Under, Joint and Several.—When damages for injuries caused by the sale of intoxicating liquors are sought to be recovered under the dram shop act, all those who have furnished liquors which contributed to create or to strengthen, or to keep up the habit of drunkenness, are liable both severally and jointly.</p>

<p>Assumpsit, on special and common counts. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>1. Ordinary Garb—What Does Not Conclusively Establish Want of. —The fact that a person continued to travel upon a sidewalk after discovering it to be in a defective condition,does not per se establish negligence, nor does the fact that a safer and better walk might have been taken, conclusively charge such person with want of ordinary care.</p> <p>2. Instructions—Should Not Give Prominence to Inconclusive Facts, —It is improper to give an instruction which gives prominence to an inconclusive and evidentiary fact.</p>

<p>1. Estoppel—Party Claiming Dower in Property is Estopped from Denying that it is Beal Estate.—A widow, who is also the administratrix of her deceased husband’s estate, who has treated certain property as real estate by claiming and obtaining dower therein in proceedings to sell the same for the payment of debts, is estopped from saying that it is not real estate.</p> <p>2. Dower—Owner of, Must Contribute to Discharge Incumbrances.— The land belonging to the estate of a deceased person was divided among his widow and heirs without reference to a mortgage covering part of the land assigned to some of the heirs. At a later date, other land, for the conveyance of which a bond for deed had been given, was sold, and the proceeds used by the widow, who was also the administratrix of her deceased husband’s estate, in paying off the mortgage on the land which had been previously divided. Held, that the widow should be required to contribute to the discharge of such mortgage in the proportion the value of her dower bore to the total value of the land divided.</p>

<p>1. Mandamus—Coercion of Municipal Corporations.—It is not proper to coerce a town by mandamus to exercise jurisdiction over an alleged street, the existence of which it in good faith denies, where such writ, if granted, would expose the town to the hazard of liability in damages.</p>

<p>1. Questions of Fact—For the Jury.—Where the testimony was conflicting and it does not appear that the verdict was manifestly wrong, or was the result of passion, prejudice or mistake, it will not be disturbed.</p>

<p>Bill for Partition.—Intervening petition. Appeal from the Circuit 'Court of Macon County, the Hon. Edward P. Vail, Judge, presiding.</p>

<p>1. Practice—What Bill of Exceptions Should Show.—It can not be assigned for error that the trial court refused a change of venue where it does not appear from the bill of exceptions that any notice of the application for such change was given. A copy among the orders and files of the case of a paper purporting to contain such notice and service thereof is not sufficient.</p> <p>3. Pleas—Effect of Amendment of Declaration Upon.—Where three defendants are declared against jointly, one of them files a plea denying joint liability, and the case is subsequently dismissed as to another! and the declaration amended so as to declare against the two remaining defendants only, the plea will be regarded as denying no more than is alleged by the declaration as amended.</p> <p>3. Limitations—What is Not New Cause of Action.—Where a suit is dismissed as to one of several defendants who have been sued on an alleged joint liability, and the declaration is amended to correspond, it is proper to refuse to permit the defendant to file a plea of the statute of limitations, predicated upon the theory that a new cause of action was set up by the amended declaration.</p> <p>4. Same—Effect of the Execution of Note for Interest.—The execution of a note, being interest for the amount of the interest due on another note, the transaction being regarded by the parties as a payment, and the original note being credited accordingly, will be regarded as a payment, and will operate to bar the statute of limitations.</p>

<p>Trespass on the Case, for causing the intoxication of plaintiff’s husband. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Transcript, from justice of the peace. Appeal from the Circuit Court of Brown County; the Hon. Jefferson _0rr, Judge, presiding.</p>

<p>1. Cities and Villages—Prosecution for Selling Goods Without License from—What Must he Shown.—In a prosecution under a city ordinance for selling goods without a license it should be shown that the amount to be paid for the license was fixed by the city council, and it is essential that the rate so fixed be reasonable.</p> <p>2. Same—Limitations on Power of Council to Regulate Transient Trading.—The statute which confers power upon city councils to regulate itinerant or transient trading, does not authorize discrimination in favor of any business or against any that is lawful in itself and its methods, and an ordinance which attempts to do either is void.</p>

<p>Indictment, for assault with deadly weapon. Error to the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Bill, for relief against a judgment by confession. Appeal from the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge, presiding.</p>

Trespass on the Case, for damage caused by smoke, gas and dust. Appeal from the Circuit Court of Macoupin County; the Hon. Jacob Fouke, Judge, presiding.

<p>1. Administrators—When Not Chargeable with Interest.—An administrator has no authority to invest money in his hands, but is bound to have it forthcoming whenever the court shall so order, and if he has not used the money, or realized anything from it, he can not be required to pay interest thereon.</p> <p>2. Same—Commission on Trust Funds.—Where a decree has been entered holding that certain funds in the hands of an administrator are trust funds, and not assets of the estate, that such administrator has no right to administer on such funds and requiring him to pay them over to a trustee who has been appointed to receive them, it is proper to refuse to allow such administrator commissions on such funds to be deducted therefrom.</p>

<p>1. Juror—Misconduct of—What is Not.—A conversation between a juror and an agent of one of the parties to a suit, had during an intermission of the court while the case was on trial, is not ground for a reversal of the judgment rendered, if it be shown that the conversation was casual, had no reference to the case, and was very brief and in nowise private or clandestine, but open and in the presence of others.</p> <p>2. Verdicts—When Conclusive.—Where the whole controversy turned on the facts, as to which the evidence was conflicting, and there was no erroneous ruling which probably did or could affect the jury in arriving at their verdict, it will not be disturbed.</p>

<p>1. Practice—Objection on Ground of Variance Should be Raised in Trial Court.—Li a slander suit, where there was abundant proof of the substance of the allegations of the plaintiff’s declaration, and where no specific variance was pointed out on the trial, an Appellate Court will not consider an objection, that the slanderous words alleged and those proved, do not correspond, if made before it for the first time.</p> <p>2. Slander—Prosecutor Exempt from Inability During Trial Only. —While a person who is managing a prosecution before a justice of the peace on behalf of the people, on a complaint which he has himself preferred, is exempt from liability for whatever he may reasonably have occasion to say in the course of such prosecution, yet this protection does not extend to what is said after the trial is over, when there is no longer any occasion or excuse for the use of slanderous language.</p>

<p>1. Wills—Construction of.—In construing a will, and a codicil which the testator directs shall be taken as a part of such will, the court should read the will and codicil together, seeking to harmonize their various provisions, and should construe particular directions in the light of the entire paper, so as to give effect to every part and to enforce the intention of the testator.</p>

<p>Assumpsit, on the common counts. Appeal from the Circuit Court of Macoupin County; the Hon. Jacob Fouke, Judge, presiding.</p>

<p>1. Evidence—Repetition of the Same Question Objectionable.—It is proper to sustain objectious to questions which are mere repetitions of those which have been asked and answered.</p> <p>2. Parties— Next Friend of Minor—Admissions by.—The next friend of a minor plaintiff is not a party to the suit in such a sense that his admissions or declarations out of court should be received.</p> <p>3. Instructions—Hoio Construed.—Instructions should be construed as a whole and objections which are based upon strained and forced constructions of expressions selected without regard to the context will not be sustained.</p> <p>4. Intoxicating Liquors—Action by Child for Death of Father-Exemplary Damages.—In a suit against a saloon-keeper for causing the intoxication of the plaintiff’s father, as a result of which he was killed, proof that such saloon-keeper sold or gave intoxicating liquor to the deceased while he was intoxicated, authorizes the jury to assess exemplary damages.</p>

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

<p>1. Judicial Sales—Effect of Sale Under Several Executions,. One of Which is Void.—Where several executions were levied upon property and a sale was made pursuant to such levies, the fact that one of the executions was void, does not annul the sale.</p> <p>3. Executions—Effect of Mistahe in Copies of.—A copy of an execution left with an officer of a corporation, certain shares of whose stock were levied upon, was dated May 11, 1893, when it should have been dated May 11, 1894; it recited a judgment rendered December 30, 1893, and was indorsed by the constable as received May 11, 1894. Held, that it was so plain that the date given in the copy was a clerical error, that no one could be misled thereby, and that a sale made under such execution was not rendered void by such error.</p> <p>3. Set-off—Not Allowed Against Amount Bid at a Judicial Sale.— A purchaser at an execution sale must pay the full amount of his bid and can not set off a claim against the plaintiff in such execution.</p> <p>4. Attorneys—Have no Implied Authority to Purchase at Judicial Sales.—An attorney has no implied authority to purchase for his clients, property sold in pursuance of a judgment in their favor secured by him.</p>

Trespass on the Case, for putting foul water and refuse matter in a water course. Appeal from the Circuit Court of, Christian County; the Hon. Jacob Fouke, Judge, presiding.

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Edgar County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>1. Mortgage—What Not a Release of.—Property which is omitted from a new mortgage given to secure an old debt is not thereby released from a prior mortgage given to secure the same debt unless some valid understanding to that effect is had.</p>

<p>Assumpsit, for nursing, etc. Appeal from the Circuit Court of Fulton</p> <p>Count)1; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Christian County; the Hon. Jacob Fouke, Judge, presiding.</p>

<p>1. Cemeteries—Use and Management of .—Although the charter'of a cemetery association may confer a private franchise, yet the use made of it, necessarily impresses it with a public character in some degree, and when lots are sold for burial purposes, the purchasers acquire the right to visit the same and to improve and care for such lots either in person or by agent, but those seeking admission must, of corase, come during proper hours and for proper purposes, and -when admitted must observe the decorum of such a place, and the superintendent may exclude any whose presence or conduct is unseemly or indecent.</p>

<p>1. Evidence— When Testimony of Witness May be Disregarded.—An instruction which tells the jury that if they believe any witness has willfully testified falsely as to any material fact, they may disregard his evidence entirely except in so far as it is corroborated by other credible witnesses, or by all the facts and circumstances in evidence, is bad, because it requires corroboration by more than one witness or by all the circumstances.</p>

<p>Trespass on the Case.—Death from negligent acts. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Pleading—When the Common Counts are Sufficient.—Where a person in the employ of a publishing co.mpany at a weekly salary and a commission upon advertisements procured by him, is discharged by his employer he will be entitled to recover, under the common counts, the amount due him upon his weekly salary as well as the commission upon all advertisements procured by him and used by the company, although his full term of service has not been completed.</p> <p>2. Contracts—Customs and Usages—Duty of the Courts in Construing.—Whenever it is necessary for a court to construe a contract it will place itself in the shoes of the parties, thus reading the subject-matter from their standpoint, that it may see it in the view it had to them when entered into; consequently the customs and usages of the contemplated business and service known to the contracting parties when the agreement was made, is admissible in evidence, but neither such custom nor usage can do away with the plain stipulations of the contract.</p> <p>3. Master and Servant—Discharge—Knowledge of Cause for— Reasons Given for.—In a suit for a wrongful discharge, if it be proved that facts existed rendering a discharge proper, it is immaterial whether the knowledge of such facts came to the employer before or after the dismissal, or whether the reasons given for the dismissal were sufficient or not.</p>

<p>1. Pleading—Special Contracts—Under the Common Counts.— Where a special contract has been terminated by the fault of the defendant, if the plaintiff is entitled to recover at all for what he did under it (not including damages for being prevented from doing more or for being hindered in what he did] he may do so under an appropriate common count.</p>

<p>1. Common Carriers—Liable for Loss of Merchandise Received as Baggage.—A common carrier who receives articles as baggage with notice of their character, is liable for their loss, although they be in fact merchandise.</p> <p>2. - Same —Principal May Sue for Loss of Goods Shipped as Property of Agent.—A traveling salesman shipped sample cases containing merchandise as his own, when they in fact belonged to his employers. Held, that the ownership of the property was immaterial, and that the undiscovered principals had a right to declare themselves and sue for a loss of the goods.</p>

<p>1. Practice —Entry of Appearance.—An entry of an appearance in a cause by a writing entitled as a cross-bill in said cause giving the numbers of the original suit in which such cross-bill is filed is a sufficient entry of an appearance in the original suit to bind the party whether he was formally made a party to the original bill or not.</p> <p>2. Description—What is Sufficient.—A description is sufficient if there is enough in it to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty.</p> <p>3. Mechanic’s Lien—Right of Sub-contractor Not Dependent on Architect’s Certificate.—The right of a sub-contractor to have a lien is not dependent upon the right of the original contractor to have an architect’s certificate.</p>

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

<p>1. Fraternal Benefit Societies—Selection of Beneficiary.—It would seem to be true that a fraternal benefit society, organized under the act of June 22, 1893, which provides that such societies “ shall make provision for the payment of death benefits” and that “payment of death benefits shall only be made to the families, heirs, blood relations, affianced husband or affianced wife of, or to persons dependent upon the member,” may settle the order of precedence within the classes enumerated' by the act, but it can not exclude those whom the statute includes.</p>

<p>1. Railkoad Companies—Use of Car Couplers.—It is not a question of law whether it be practicable and expedient for all railroads to use the same kind of coupling devices, and the most that the law requires is, that every railroad company shall adopt such couplings as are found tiy experience to combine the greatest safety with practical úse.</p>

<p>1. Married Women—Their Rights and Liabilities.—Under the laws of this State, a married woman may earn money, which is her own, and for all her contracts, as well as for family expenses, which include medical attendance upon herself and members of her family, she is person.ally liable.</p>

<p>1. Garnishment—No Recovery. Unless, etc.—No recovery can be had for the benefit of a garnishing creditor unless his debtor could have maintained, in his own name, an action of debt or indebitatus assumpsit against the garnishee.</p>

<p>1. Separate Maintenance—.Fees Pendente Lite—-Effect of the Settlement of the Suit upon.—Although counsel for a wife, who is complainant in a bill for separate maintenance, may obtain an order for the payment of fees pendiente lite, on making a proper case, yet if the controversy is settled by the parties by the voluntary return of the wife to the husband, and the abandonment of the suit, before counsel has procured such order, his right to it is gone.</p>

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

<p>1. Contracts—Construction of.—If a contract contains ambiguous words, or words of doubtful meaning, they should be construed most strongly against the party who executed the contract, and if a contracting party uses, over his own signature, words of doubtful meaning, they will be construed against him.</p> <p>2. Words and Phrases—1”Prompt Shipment,” and “Ship at Once.”—A sale was negotiated by telegraph, the principal difference being in regard to price, and the words “ prompt shipment,” were used twice in the correspondence by the party wishing to sell, but the final message from the buyer was “ship at once.” Held, that the words “ at once,” meant as promptly as circumstances would permit, and that they were not to be taken literally.</p>

<p>1. Attorney’s Fees—When Amount of Ground for Interference by Court of Review.—A court of appeal will not reverse a decree on account of the allowance of an attorney's fee, if the allowance be justifiable under the evidence and permissible by the contract, unless it be such as the court itself knows to be exorbitant and oppressive.</p> <p>2. Words and Phrases—“Reasonable.”—Proof that a fee is usual, ordinary and customary is evidence that it is “ reasonable; ” and the best evidence, many times, of what is reasonable, is what is usual and customary.</p>

<p>Assumpsit, on- two promissory notes. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.</p>

<p>1. Bill op Exceptions— What it Need Not Show—A bill of exceptions is not the proper place for either a verdict or judgment to be shown; the record proper which preserves itself and needs no bill of exceptions is the appropriate and only necessary place wherein they should appear.</p> <p>2. Practice—Objection to Amount of Damages Should be Made in Trial Court.—An objection that the damages assessed against a defendant are excessive, can not be made for the first time on appeal.</p>

<p>1. Court Records—Amendments to.—The records of a court can not be amended at a term subsequent to the one at which the order sought to be amended was made, upon information obtained from an affidavit of the attorney for one of the parties interested.</p> <p>2. Bill of Exceptions—Papers Not Included in—How Treated.— Papers which are certified by the clerk of the trial court to be copies of notices filed in his office can not be considered in the Appellate Court. Such documents can only be regarded when incorporated in a bill of exceptions.</p>

Bill, for cancellation of note and reconveyance of property conveyed as security. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.

<p>1. Guaranty—Effect of Acceptance of Note—Days of Ch'ace.—Two persons entered into a contract by which one of them guaranteed a debt of a third person to the other, due in sixty days, it being understood that the sixty days credit should be evidenced by a promissory note. Held, that the taking of such note, payable in sixty days, was not a variance of the contract, because of the addition of three days time, arising from the fact that days of grace would attach to the note.</p>

<p>Bill, to foreclose mortgage. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>Trespass oil the (lase, for a nuisance. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding.</p>

<p>1. Courts of Equity—Will Not Entertain Frivolous Controversies. — It is the duty of a court of equity to prevent its time from, being consumed in frivolous controversies, to the detriment of suitors who are entitled to its attention, and it will decline to entertain them, although the defendants make no specific objection on this ground by demurrer or otherwise.</p> <p>2. Corporations—Agreement Concerning Management of, Not Enforced Specifically.—A contract between two parties who are about to form a corporation, in regard to the management of the corporation, which is not assented to by other persons who subsequently acquire interests in such corporation, will not be specifically enforced.</p>

<p>Bill, to remove clouds from title. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Errors—When Immaterial.—When the only question is as to the amount of damages, errors which do not affect the question of damages are immaterial.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Charles Gr. Neely, Judge, presiding.</p>

<p>1. Mutual Benefit Associations—Expulsion of Members—To prove the expulsion of a member of a mutual benefit association, an expulsion in compliance with the law of the association must be shown.</p> <p>2. Same—Insufficient Notice of Proceedings to Suspend Member.— When the laws of a mutual benefit association required a notice that if the arrears of dues were not paid on or before the first regular meeting of the following month the member would stand suspended, and the notice given was to appear in the lodge hall at the meeting to pay, and that in case of non-appearance, such member would be suspended, the notice was held insufficient, as under the law such member might send the money on or before such meeting, but under the notice he must go there in person.</p> <p>3. Interest—Mistakes in the Calculation of.—The question as to whether interest was calculated without mistake must be raised in the court below. It can not be inquired into in the Appellate Court for the first time.</p>

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

<p>1. Mortgage—Must Show Who is the Creditor.—A mortgage which does not name the mortgagee and which contains nothing to show who is the creditor, so that such lack may be supplied by reference, is void, and a recital that the mortgage is given to secure a note payable to the order of A, is not sufficient, as such a note may be the property of some other party.</p> <p>2. Demurrers—What Questions Can he Raised hy.—A mortgage conveyed one acre of land in the northwest comer of block twenty-seven, etc.; the block was intersected by a road extending from its northwest to its southeast comer. Held, that the question whether the acre shall be partly in the road, or enough on each side to make an acre, can not be raised by demurrer.</p>

<p>Assumpsit, on a check. Appeal from the Circuit Court of Cook County; the Hon. Charles Gr. Neely, Judge, presiding.</p>

<p>Trespass on the Case, for the loss of a trank and contents. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>1. Personal Property—What Does Not Change Character of.—That a particular fund, was derived from real estate as the result of the condemnation of, and payment for such real estate, does not affect its character when received in money by the original owner of the land, although the condemnation proceedings are still pending in the Supreme Court on appeal.</p> <p>2. Same—Distribution of, is According to Law of Deceased’s Domicile.—Personal property is distributed in accordance with the law of the testator’s domicile.</p> <p>3. Same— What Does Not Change Character of.—The fact that personal property is held in trust by a party living in this State for the benefit of a person living in another State does not change its character or situs, nor does the fact that it may be taxed here; it is still personal property descendible in accordance with the law of the domicile of the beneficial owner.</p>

<p>1. Conditional Sales—Of Personal Property — Secret Liens.—If possession of personal property is delivered under a contract, by which the receiver, on the performance by himself of a condition subsequent, shall have the right to become the owner thereof, and there is no compliance with the statute concerning chattel mortgages, the title of the party delivering such possession must yield to the claim of a creditor having a judgment and execution against the party having such possession.</p>

<p>t. Conditional Sales— Of Personal Property—Secret Liens.— If possession of personal property is delivered under a contract, by which the receiver, on the performance by him of a condition subsequent, shall have the right to become the owner thereof, and there is no compliance with the statute concerning chattel mortgages, the title of the party delivering such possession must yield to the claim of the creditor having a valid chattel mortgage on such property, made by the party in possession thereof.</p>

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

<p>1. Lease—Creating a Lien for Rent—Chattel Mortgage.—A lease which provides that the lessor shall have a valid and first lien upon all the property of the lessee as security for rent, is, in effect, a chattel mortgage, and unless acknowledged and recorded pursuant to the statute, does not affect the property of the lessee in the hands of an assignee for the benefit of creditors.</p> <p>2. Same—Providing Security for Bent.—A lease which provides that the lessor shall have a lien upon the property of the lessee, as security for the rent, is, in effect, a chattel mortgage for a debt which may never accrue.</p> <p>3. Appellate Court Practice—Incomplete Records—Jurisdiction to Aprm.—The want of a complete record goes to the jurisdiction of the court to reverse, but not to the jurisdiction to affirm.</p>

<p>Motion, to dismiss an appeal. Appeal from the Superior Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.</p>

<p>1. Garnishment—What Debts May be Reached by.—A garnishing judgment creditor of several joint, who are also several judgment debtors, has all the rights that either one of such debtors has, and may maintain garnishment proceedings for a debt due to only one of such judgment debtors. Lake Shore & M. S. Ry. Co. v. Scott, 67 Ill. App. 92.</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. Chattel Mortgage—What is, Under the Statute.—Any conveyance of personal property having the effect of a mortgage or lien upon such property, providing that the possession thereof shall remain with the grantor, acknowledged and recorded in accordance with the act relating to chattel mortgages, is, for the purposes of such act, to be deemed a chattel mortgage.</p> <p>2. Same—When an Order for Goods is, in Effect—Notice.—An order upon a manufacturing company for a “ Cash Register, ” to be sold upon credit, stating the terms of such credit, and providing that the vendee shall retain the possession of the register until default in one or more payments, and that the title of the same shall remain in the company as security for the deferred payments, when accepted and acted upon by the company, has the effect, as between the company and the purchaser, of giving it a lien for the amount unpaid thereon, and is, in effect, when properly acknowledged and recorded, a chattel mortgage, and notice to all the world.</p> <p>3. SAMM—What may be the Subject of a Chattel Mortgage.—One may ■ make a valid mortgage of a thing in which he has at the time a potential interest; as, if he owned sheep, he may mortgage the wool to grow upon them; but a fisherman who owns a schooner and is about to proceed upon a fishing voyage can not mortgage the fish he expects to catch because he has no potential interest in them.</p> <p>4. Acknowledgments—Omission to State the Venue Immaterial.— The omission to state the name of the county, in the certificate of acknowledgment of a chattel mortgage, in which such acknowledgment is taken, is immaterial when it is certain that the acknowledgment was taken before a justice of the peace in and for a town which the court judicially knows to be in the proper county.</p> <p>5. Sheriffs—Liability for Selling Mortgaged Property.—A sheriff who sells personal property upon which there is a mortgage, and of which he has notice, will be liable to the mortgagee for the value of the same.</p>

<p>1. Contracts—For Personal Services—Performance of.—Contracts for personal service which can only be performed during the lifetime of the party contracting are subject to the implied condition of his continuing to live and be in health to perform them, and are terminated by his death or incapacity from illness.</p> <p>2. Same—For Sales at a Valuation to be Fixed by Persons Named.— Contracts for sale at a valuation price, to be fixed by persons named, are impliedly conditional upon those persons surviving and making the valuation, and are terminated by their death before doing so, the valuation stipulated for having thus become impossible.</p>

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

In equity.—Bills by an assignee of an officer’s salary. Appeals from the Circuit Court of Cook County. In the first case the Hon. John Gibbons, Judge, presiding. In the second case the Hon. Elbridge Hanecy, Judge, presiding.

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

<p>1. Malicious Prosecution—What Necessary to Recovery for.— In an action for malicious prosecution it is necessary for the plaintiff to prove, that the defendant, in the institution of the prosecution complained of, acted maliciously and without probable cause.</p>

<p>Assumpsit, on an insurance policy. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Bill of Exceptions—What Does Not Constitute.—In a roll of papers certified by a circuit clerk upon the back of a copy of an affidavit was a date and the word “ approved,” followed by the signature and seal of a judge of the Circuit Court, and upon the back of the assignment of errors were the words “ presented in open court the 22d of September, 1896,” followed by the signature and seal of the judge. Held that the papers so marked did not constitute a bill of exceptions.</p>

<p>l. Appellate Court Practice—Improper Remarks by Counsel— When Ground for Reversal.—This court will not reverse a judgment on account of improper remarks by counsel, unless it is plain that justice was in some way subverted or defeated thereby, but will in most instances rely upon the trial judge to protect against any injurious consequences from the indiscretion and over-zeal of counsel.</p>

<p>1. Negotiable Paper—Accommodation Indorser—When Not liable. —In a suit against the drawer and indorser of a check, the plaintiffs, who were real estate agents, testified that the check was given as a deposit on a real estate contract, between the drawer of the check and a third person, and that the indorser had no interest in the transaction, having merely loaned his name for convenience; that this trade fell through, but that the drawer of the check was indebted to them on another transaction. Held, that plaintiffs had no claim on the check, and that the indorser was not liable.</p> <p>2. Judgment—On a Joint Promise Must be Joint.—In an action ex contractu on a joint promise, a judgment can not be rendered against one defendant only, but must go against all the defendants, or none.</p>

<p>DeM for Sent.—Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>Bill, for injunction. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.</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>Trespass on the Case, for personal injuries. Appeal -from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Voluntary Assignments— Conditions of Bond Construed—An assignee’s bond, conditioned that the assignee shall in all things discharge his duties as assignee, and shall obey and carry out any and all orders which the County Court has heretofore entered, or may hereafter enter, is a surety that he shall pay over and account for all moneys which at the time of the execution of the bond he ought to have had in his hands, as well as all that should thereafter come into his hands.</p> <p>2. Same—Assignee and Sureties Bound by Bond as Executed.—An assignee and his sureties are bound by the terms of the bond which they execute, and a new bond given under the orders of the court will not be held to have been illegally exacted from the assignee, and binding on neither him nor his sureties, because its terms are in excess of those prescribed by statute.</p> <p>3. Same—Appeals by Sureties on Assignees Bonds.—The sureties on the bond of an assignee have an interest in an order requiring such assignee, who has been removed, to pay an amount therein named to his successor, and are entitled to appeal from such an order.</p> <p>4. Same—When Orders of Court are Conclusive on Assignee's Sureties. —The sureties on an assignee’s bond are concluded in a collateral proceeding by the finding of the County Court as to the amount unaccounted for that came to the hands of the assignee and which he was ordered to pay over.</p>

<p>Assumpsit, on an insurance certificate. Appeal from the Circuit Court, Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Motion for Damages, on dissolution of an injunction. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Condemnation. Proceedings.—Appeal from the Superior Court of Cook County; the Hon, Theodore Brenta.no, Judge, presiding.</p>

<p>1. Rescission—For Failure to Pay.—A refusal to pay in accordance with the terms of an agreement, even though the amount withheld be small, is a breach which indicates that the one who is guilty of it, does not intend to be bound by the contract, and gives the other party a right to rescind it.</p>

<p>1. Equity Pleading—References to Instrument Relied Upon.—If a plaintiff, by his bill, describes and gives the general purport of any instrument under which he claims, and refers to such instrument in support of his claim, the effect of such reference is to make the whole instrument referred to, when produced, a part of the record.</p> <p>2. Equity Practice—Decree for Taxes Paid Pendente Lite.—In a suit to foreclose a mortgage, it is proper to allow the complainants for money advanced for the payment of taxes, after the filing of the bill under the prayer for general relief; the contingencies which would justify such payment having been set forth in the bill.</p> <p>3. Variance—In Equity.—in equity, relief will not be denied because of mere variance, unless the case stated and the case found are so materially variant as to prevent a decree in favor of the complainant.</p>

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

<p>1. Gross Negligence—In Case of Injury to Trespasser,—In a suit against a railroad company for personal injuries, it appeared that a train belonging to the company was stopped upon the railroad track so as to block a public street; the plaintiff attempted to climb between two cars, the train was started while he was thus engaged, and he was injured. Held, that unless the defendant had notice at the time the cars were moved, that the plaintiff was in a position where such movement would be fraught with great danger to him, its conduct can not be said to have been wanton, reckless or gross negligence.</p>

<p>Assumpsit, on special and common counts. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>