Volume 68 — Illinois Appellate Court Reports

<p>1. Fraud—Belief Against, Affirmatively and by Way of Defense.— A traded the plant and property of a manufacturing company to B in exchange for real estate, to which there were trust deeds to C and D, A assuming and agreeing to pay the notes secured by said trust deeds. At a subsequent date A sold the property he had secured to E, and later C commenced foreclosure proceedings under his trust deed. D filed a cross-bill in this suit, praying that A and B be decreed to pay the amount found to be due to him, and that his trust deed be foreclosed, and A and E tiled an answer to such cross-bill, and a cross-bill of their own, both alleging that the trust deed to D was made in order to raise money to pay certain debts of the manufacturing company for which E was personally liable; that said debts had not been paid; that D had knowledge of this agreement, and that he paid nothing for his trust deed or the note secured thereby; the cross-bill also prayed that the note and trust deed held by D might be declared null and void as between B and I), and be held for naught as against A and as a lien upon the property. Held, that A and E were not entitled to the affirmative relief asked by their cross-bill, but that the facts alleged were, if proved, a good defense against the cross-bill of D.</p>

<p>1. Garnishment—Duty of Garnishee to Defend Property.—A garnishee in an attachment suit answered that he had in his possession certain property which he supposed belonged to the defendant in the attachment, and that such property had been replevied. He was not requested to and did not defend the replevin suit and judgment was rendered against him. Held, that the answer of garnishee was sufficient to relieve him from liability to the plaintiff in the attachment, for a failure to defend the replevin suit;</p>

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

<p>1. Fbatjd—Not to be Inferred.—Fraud Í8 not tobe inferred from the fact that a debtor gives to one of his creditors a mortgage upon his real estate for the purpose of securing him to the exclusion of other creditors.</p>

<p>1. Married Women—Recovery for the Sale of Dower and Homestead not Barred by Fraud of the Husband. —A person in failing circumstances conveyed his land to one of his creditors, who promised the wife of such person to pay her three thousand dollars for her interest in the lands at the time of the execution of the deed, in consideration of which promise she joined with her husband in the deed. It was held that she was not barred from recovering the money promised, because, in the execution of the deed by her husband, it was his intention to defraud and hinder certain creditors in the collection of their debts.</p> <p>2. Verdicts—Upon Conflicting Evidence.—Where the evidence is conflicting and irreconcilable, the judgment will not be reversed on the ground that the verdict is against the evidence, where evidence on the part of the prevailing party by itself considered is sufficient to support a verdict.</p> <p>3. Preference—By Debtor in Failing Circumstances.—That a debtor in failing circumstances may prefer certain of his creditors, is a doctrine well settled in this State.</p> <p>4. Exceptions—Must be Taken in the Court Below.—An error in the . action of the trial court can not be considered on appeal, where there should have been been an exception, and no exception was taken.</p> <p>5. Recovery—Under the Common Counts.—When a contract has been fully performed by the plaintiff, and there is nothing further for him to do, he may recover under the common counts.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of La Salle County; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Iroquois County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Former Decisions—Approved.—The views expressed in this case on a former appeal are approved. See 59 111. App. 184.</p> <p>2. Practice—When Exceptions Should be Taken.—When no exception to a refusal of the court to allow interest was taken when the damages were assessed and 'judgment rendered, error on the ground of such refusal is not properly assigned, and will not be considered on appeal.</p>

<p>Assumpsit, on a subscription. Appeal from the Circuit Court of Livingston County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Decrees—Must be Sustained by the Proofs in the Record.—Where there is no evidence in the record to sustain the finding of the trial court on one of the material allegations of plaintiff’s, bill a decree in his favor must be reversed on appeal.</p> <p>2. Specific Performance—Certainty of Description.—A bill for the specific performance of a contract relating to real estate must describe the land with such certainty that it can be identified beyond the possibility of future controversy and a court of equity will decree a specific performance of such a contract only when it is so clear as to have no uncertainty as to quality, shape and location.</p>

<p>Replevin.—Appeal from the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Order of Distribution, of money in hands of an administration. Appeal from the Circuit Court of Iroquois County; the Hon. Chables B. Stabb, Judge, presiding.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Trespass on the Case, for killing stock. Appeal from the Circuit Court of Marshall County; the Hon. Nathaniel W. Green, Judge, presiding.</p>

<p>1. Verdicts—In Criminal Cases—Power of the Court Over.—A court may set aside a defective verdict, on which no judgment can be rendered, and award a venire facias de novo in a'criminal case.</p>

<p>Action, for breach of real estate contract. Appeal from the Circuit Court of Boone County; the Hon. Charles Kellum, Judge, presiding.</p>

<p>1. Chattel Mortgages—Notes Secured by, Must so State.—A chattel mortgage securing a note which fails to state upon its face that it is so secured, as required by the act of 1895 (Hurd’s Statutes, 1895, page 1058), is absolutely void.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>Trespass, de bonis asportatis. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Lihita.tions—New Promise—When Sufficient.—An acknowledgment of indebtedness of such a character as to clearly show a recognition of the debt and an intention to pay it, will remove the bar of the statute of limitations.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Mercer County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Assumpsit, for wages, etc. Appeal from the Circuit Court of Du-Page County; the Hon. Clark W. Upton, Judge, presiding.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Patent Right—Estoppel to Deny its Validity.—A person having had the use and benefit of a patent right, can not defend an action brought to recover the purchase price of it, on the ground of its invalidity, unless actually disturbed in the enjoyment of such patent right.</p> <p>2. Patents—License to Use Not an Assignment.—A license to manufacture a patented article and to make use of an invention covered by letters patent, is not an assignment, and need not be recorded under the patent laws as such, to insure its validity.</p> <p>3. Interest—On Written Contracts.—Money, payable under a written contract, unless otherwise specified, is due as soon as the contract is made, and draws interest, under the statute, from such date.</p> <p>4. Contracts—Acceptance by Letter.—When one party made a draft of a contract and sent it to the other party and he returned it together with a letter, saying, “we accept the contract,” it teas held binding upon such party.</p>

<p>Forcible Detainer.—Appeal from the County Court of Du Page County; the Hon. George W. Brown, Judge, presiding.</p>

<p>1. Preferences—Debtor in Failing Circumstances.—A debtor in failing circumstances has a right to make preferred creditors provided he does so in good faith.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of DeKalb County; the Hon. Charles Kelluh, Judge, presiding.</p>

<p>1. Sales—Delivery of Purchaser's Property.—While the general rule is that there must be a delivery of the property sold to make the sale effective as to execution creditors, yet a manual change of possession is not absolutely required where the property is of such a heavy and bulky nature as to render its immediate removal impracticable.</p>

<p>Garnishment.—Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

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

<p>Assumpsit, for services. Appeal from the City Court of Elgin; the Hon. R. P. Goodwin, Judge, presiding.</p>

<p>1. Cutting Timber—Plaintiff Must Show Ownership in Fee.—In an action of debt to recover the statutory penalty for cutting timber, under section 5, chapter 126, R. S,, without proof of ownership in fee, the plaintiff can not recover.</p>

<p>1. Life Insurance— When Suicide Does Not Avoid the Policy.—The term suicide implies an act of self-destruction, deliberately done by a person capable of forming a legal intention, and when one kills himself while insane, even though he intends that the result of the act shall be fatal, but through the impairment of the reasoning faculties is not able to understand the moral character, nature, consequences and effect of such act, or is impelled by an irresistible impulse which he can not withstand, such act is not suicide within the legal sense of the term, and is not within the contemplation of the parties to a contract of life insurance, and in such a case the insurer is liable.</p> <p>2. Practice—Examination of Jurors.—A party can not complain that the trial court erred in refusing to permit jurors to answer certain questions propounded to them by him, when the record does not show that he exhausted his peremptory challenges.</p> <p>3. Same—Objections Must be Specific.—Objections to testimony should be specifically stated to the trial court and only such objections as are so stated can be considered on appeal.</p> <p>4. Evidence—Verdict of the Coroner’s Jury.—In an action against a life insurance company, the verdict of the coroner’s jury that the insured “killed himself while temporarily insane,” is properly admitted as evidence on behalf of the plaintiff.</p>

<p>1. Choses in Action—Assignment of.—Glioses in action may be assigned, and courts of law will recognize and protect the rights of the assignee, whether the assignment be good at law or in equity only. 7</p> <p>3. Contracts—Insolvency of Parties to.—A contract remains binding notwithstanding the insolvency of one of the parties, so long as such party is able and willing to perform on his part.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Woodford County; the Hon. Nathaniel W. Gbeen, Judge, presiding.</p>

<p>Transcript, from a justice of the peace. Error-to the Circuit Court of Livingston County; the Hon. Charles E. Starr, Judge, presiding.</p>

<p>1. Verdicts—When Conclusive.—The mere fact that upon the evidence as it appears in the record a ’ court of appeal might, in the first instance, have been disposed to form a different conclusion than that arrived at by the jury who tried the case, is not sufficient ground for reversal.</p>

<p>Replevin, for a wagon. Appeal from the City Court of Aurora; the Hon. R. P. Goodwin, Judge, presiding.</p>

<p>Assumpsit, on a special contract. Appeal from the Circuit Court of Iroquois County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Knox County; the Hon.. John J.. Glenn, Judge, presiding.</p>

<p>Trespass on the Case.—Death from negligent act. Error to the Circuit Court of Grundy County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Cities and Villages— Using Private Sewers—Liability of.—A village, by connecting its sewers, ditches or drains with the drains constructed by private persons, and by draining the surface water of the streets and the sewage of the village into such private drains, adopts them, and becomes responsible for damage done by polluted water passing through them to the same extent as if it had originally constructed them.</p> <p>2. Same—May be Liable as Joint Tort Feasors for an Entire Damage. —By flowing its sewage through private drains, a village contributes to produce an injury caused by sewage issuing from such drains. It thus becomes a joint tort feasor and as such is liable for the whole damage.</p>

<p>1. Corporations—Presumptions as to Power of President of—Notice of Restrictions Necessary.—The president of a corporation may be presumed to be authorized to employ a bookkeeper for the company and a person so employed is not bound by any by-laws of the Company restricting the powers of the president unless he had notice of them.</p> <p>2. Master and Servant— Wrongful Discharge of—Suits for Amount Due on Salary.—A servant who was employed for a specified term and wrongfully discharged during such term, has a right to recover his salary according to the terms of the contract, and may bring separate suits for payments due him as soon as they mature.</p> <p>8. Master and Servant—Discharge Before Expiration of Contract and Offer of Employment at Reduced Wages.—When a person is employed for a stated time at stipulated monthly wages and is notified of a reduction in his wages before the expiration of the term, an acceptance of continued employment at the reduced rate would be a modification of the original contract, and an abandonment of any claim for more; and a rejection of the offer neither prejudices his right of action nor reduces the amount of his recovery.</p> <p>4. Pleading—Wages Due Under a Special Contract Recoverable Under the Common Counts.—When a person who is employed under a special contract is discharged without fault on his part before the expiration of the term, he may recover the stipulated wages under the common counts.</p>

<p>1. Contracts—May Not be Varied by Parol Evidence.—When both the amount of rent to be paid and the property rented are provided for in a lease it is proper to refuse to allow the defendant, in a suit for rent, to prove that he bought the furniture in the building leased, and that the plaintiff carried off part of such furniture and refused to return it.</p> <p>2. Easements—Light and Air.—In a suit for rent the defendant can not set off damages claimed to have been sustained by the erection of a building on an adjoining lot by whic.h,light and air was cut off from the leased premises on the ground that such building was joined to a building on the leased premises by virtue of a party-wall agreement, as neither he nor his landlord had any property in the light and air.</p> <p>3. Party Walls—Bights of Lessees in Contracts Concerning.—An agreement to pay part of the cost of a party wall is personal to the party who constructs the wall and the right to recover for the value thereof, when the same is used by an adjoining part owner, does not pass to a lessee, but remains in such original owner.</p>

<p>1. Negligence—Defective Machinery.—If an injury results from a defect or insufficiency in the machinery or implements furnished to a servant by his master, knowledge of the insufficiency must be brought home to the master or proof made that he was ignorant of the same through his own negligence or want of care, before he can be held to be liable for such injury.</p> <p>3. Question of Fact—Whether Servant Should Inspect Appliance Furnished by Master is.—In a suit by a servant against his master for in juries caused by the breaking of a scaffold it is error to instruct the jury that if defendant’s foreman told plaintiff that the scaffolding was all right and ready for him to go to work upon, and instructed him to go to work upon the same, that that absolved plaintiff from any care -in inspecting the construction of the scaffolding himself to ascertain whether it-was safe or not. In such a case it is rather a question of fact than of law whether the plaintiff should inspect the scaffolding before going upon it.</p>

<p>Petition in Probate.—Appeal from the Circuit" Court of Kendall County; the Hon. Clark W. Upton, Judge, presiding.</p>

<p>1. Vendor’s Lien—(general Principles.—Whether a vendor’s lien will be enforced in any given case depends so entirely upon the facts involved that no general rule can be laid down that can cover every kind of a case. As between vendor and vendee alone, a lien will be stistained: but as between that lien and a mortgage lien, the latter is generally preferred.</p> <p>3. Same—Liens Accruing at the Same Time.—Of two liens accruing at the same time, the legal lien of a recorded mortgage must be deemed superior to the secret equity of a vendor.</p> <p>8. Same—Failure to Give Notice of.—A vendor of real estate, who allows third parties to spend their money in improving it, under the provisions of a mortgage made to them by the vendee, without making any protest or claim of a vendor’s lien, will not be allowed to set up a claim to a lien as against such parties.</p> <p>4. Deeds—Pass Title When Delivered—A deed, without being recorded, if delivered to the grantee, or some one for him, passes title as eflectually as though it were recorded.</p>

<p>1. Recognizance—Defined.—A recognizance is an obligation of record, entered into before a court or officer duly authorized for that purpose, with a condition to do something required by law, which is therein specified.</p> <p>2. Same—Requisites of the Obligation.—To be valid the recognizance must be taken before a court or officer duly authorized, and if taken before one justice o' the peace, where the statute requires two, it will be void.</p>

<p>Bill, against an administrator for relief. Error to the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>1. Option Contracts—The Intention of the Parties.—In a suit on a contract which is defended on the ground that trades made in pursuance of the contract were violations of the statute against options, it is proper to refuse to allow the defendant to testify as to his intention when he made the contract. In such a case one party to the contract would not be affected by any secret intention of the other party, unless he knowingly participated- in it.</p> <p>2. Same—What are Not.—By the rules of a Board of Trade, a purchaser of grain could make sales of as much grain as he had purchased, and the member of the Board of Trade making the sale or purchase would take the burden upon himself to see that the grain, when delivered on the first purchase, should be immediately turned over on the second purchase. Held, that the members took this responsibility as agents of the purchasers, the purchasers not being able to deal on the board of trade themselves, and that the provision could not be construed as granting an option to parties to receive or not to receive grain purchased.</p> <p>8. Same—Burden of Proof.—Where a suit on a contract was defended on the ground that sales made under the contract were violations of the statute against options, the burden of proof is upon the defendant to show that the contract was within the inhibition of the statute, or that the plaintiff was guilty of an intention to violate the statute by his dealings under the contract.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Du Page County; the Hon. Clark W. Upton, Judge, presiding.</p>

<p>1. Master and Servant—Hazards Assumed by Servant.—Ordinarily a servant assumes all the usual known dangers incident to his employment, and also the hazards resulting from the use of defective machinery, if its defects are as well known to him as to his employer.</p>

<p>Bill for Injunction.—Appeal from the Circuit Court of Will County; the Hon. Dokrance Dibell, Judge, presiding.</p>

<p>Bill for Injunction.—Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>1. Promissory Notes—Cancellation of—Substitution of New Notes for Old Ones Secured by Mortgage.—Where, by mutual agreement of the parties, new notes are given and accepted in lieu of and for the purpose of correcting a mistake in notes previously given and secured by mortgage, the maker is entitled to have the old notes canceled, but the mortgage seeming them will stand as security for the new notes.</p>

<p>Bill, for the cancellation of promissory notes. Appeal from the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Attorney’s Fees—Allowance of, Under Trust Deed, Before Sale. — A trust deed provided that under certain circumstances it might be foreclosed, and authorized the court “out of the proceeds of any such sale to first pay the costs of such suit, all costs of advertising, sale and conveyance, including the reasonable fees and commissions of said party of the second part, or person who may be appointed to execute this trust, and reasonable attorney’s and solicitor’s fees.” Held, that a fair and reasonable construction of this provision authorized the allowance of solicitor’s fees in a foreclosure suit, brought under such deed, for services rendered up to the time of their allowance, although no sale of the property involved had been ordered or made.</p>

<p>Assumpsit, on a contract of sale. Appeal from the Circuit Court of Iroquois County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Fellow-Servants—Switching and Road Crews of a Railroad Company.—The crews of switch and road engines whose employment requires them to do switching in the same yards, and to use the same tracks and switches, and makes them necessarily dependent on each other for their mutual safety, are fellow-servants.</p> <p>3. Same—Length of Employment and Acquaintance Immaterial.— The fact that an employe was only temporarily engaged at a particular task and that he had no acquaintance with his co-laborers does not operate to bar the application of the doctrine of fellow-servants.</p> <p>8. Same—Ordinarily, a Question for the Jury—Exceptions.—Whether two persons who are working for the same master are fellow-servants or not, is, ordinarily, a question for the jury; but in a case where there is no dispute as to the facts which show the relationship, and they prove beyond question that such persons were fellow-servants, the court may properly take the case from the jury.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>1. Chancery Jurisdiction—Insolvency of Trespassers.—The insolvency of a trespasser and the fact that the proceeds of property wrongfully taken by him, is still in the hands of a purchaser, will not justify a resort to a court of equity to recover damages for such trespass and to secure an. order directing such purchaser to pay the money in his hands to the complainant.</p>

<p>1. Cities and Villages— Their Duty as to Streets.— It is the duty of a city to maintain its streets in a safe condition, and such duty can not be evaded or delegated to others, and if a city by its direct act or authority causes or permits its streets to get out of repair and neglects to use reasonable diligence to repair them after notice, it is liable for injuries received by any person on account thereof, while such person is exercising ordinary care.</p> <p>2. Negligence—Traveling on Defective Streets.—Traveling upon a street by one having knowledge of dangerous defects therein, does not necessarily constitute negligence.</p>

<p>1. Findings by the Court—Presumptions in Favor of—Weight Accorded to.—Where a case was tried by the court without a jury, and no propositions of law were submitted and no objection made to any part of the evidence, a court of appeal will presume that the trial court properly applied the law to the facts, and that its finding was the result of its deliberate judgment upon the facts, and will give such finding the same weight accorded to the verdict of a jury.</p>

<p>. Trespass on the Case, for fraud and deception. Appeal from the Circuit Court of Whiteside County; the Hon. John D. Crabtree, Judge, presiding.</p>

<p>Transcript, from justice of the peace. Appeal from the Circuit Court of Iroquois County; the Hon. Thomas F. Upton, Judge, presiding.</p>

<p>1. Liens—For Labor and Material.—A person who furnishes labor and material in oaring for and curing hides belonging to another person, at his request, has a lien upon the hides for the price of the labor and material furnished.</p>

<p>I. Game Law—Possession or Sale of Birds Killed in Another State.— The provisions of the game law, which make it unlawful for any person to sell, expose for sale or have in his possession for the purpose of sale, certain animals, fowls and birds therein mentioned, at certain seasons, apply to a person who has in his possession any of such animals, fowls or birds, although they were killed outside of this State and have been shipped to him in this State.</p>

<p>1. Slander— Words Spoken in Relation to a Known Act.—In a suit for slander, if the words proven to have been spoken by the defendant of the plaintiff, were spoken about and in relation to a known act, and that act in law is not a felony, which is known to the bystanders, the defendant is not liable.</p> <p>2. Jurors—Relationship to an Attorney in a Case.—The mere fact that one of the jurors in a case was a brother-in-law of one of the attorneys for the successful party is not ground for a reversal where the record does not show that any question as to his competency was raised on the trial.</p>

<p>Assumpsit, for work and material. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Selaw, Judge, presiding.</p>

<p>1. Constables—Liability of Sureties.-—The seizure of the goods of A, under color of process against B, is not a mere private trespass of the officer, but is official misconduct, constituting a breach of his official bond.</p> <p>2. Practice—Defects in Declaration—Time to Object.—If a declaration in an action for the wrongful seizure of mortgaged property is defective in failing to state that the mortgagor was the owner of the property at the time of the execution of the mortgage, the defendant should call the attention of the court to it during the trial. Such a defect is cured by verdict.</p> <p>3. Preferences—Manner of Making.—A debtor has a right to prefer one of his creditors to the exclusion of others, either by making payment or giving security, and may execute a chattel mortgage in order to make a preference.</p> <p>4. Same—Motives of Debtor Immaterial.—The motive of an insolvent debtor in securing one creditor to the exclusion of others, can not be inquired into, providing the creditor has done nothing improper. '</p> <p>5. Delivery — Of Note and Mortgage — Presumption as to.—If a chattel mortgage and note is found in the hands of the mortgagee, the presumption of law is that it was properly delivered to him, and strong proof is required to overcome such presumption.</p>

<p>1. Ordinary Cabe—At Railroad Grossings.—A person has no right to blindly run into danger and then seek to recover damages for the resulting injury from another; and a person will not ordinarily be permitted to recover damages from a railroad company for injuries received at a crossing, where the view of the railroad tracks was unobstructed for a considerable distance and such person went in front of a train without looking, or listening, or ascertaining by any means, whether it was safe to go upon the crossing.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Iroquois-County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Gas Companies—Degree of Gave Required of.—A gas company deals with a dangerous agent for profit, and should exercise care proportioned to the dangers from which it is its duty to protect the persons and property of others.</p> <p>2. Same—Diability of, for Damage done by Escaping Gas.—A gas company is liable without notice, for all damages caused by gas escaping from its pipes, where leaks occur through the fault of the company; if they occur through the fault of another, liability attaches as soon as the company has had notice and time to repair.</p> <p>3. Streets—Interest of Owner of Abutting Property in Trees.— While a property owner has no claim to, or control over, trees growing in a street in front of his premises as against the municipality, yet as against third persons negligently injuring or destroying them he may recover,</p> <p>4. Evidence—As to the Cause of an Injury-—Similar Cases.—Where one of the questions in controversy in a case is, whether gas permeating the soil would have the effect to poison and kill the roots of trees, it is proper to admit evidence tending to show that trees other than the ones alleged to be injured, were destroyed or damaged by gas escaping from the same pipe as that said to have caused the injury complained of.</p>

<p>Assumpsit, on a special contract. Appeal from the Circuit Court of Kankakee County; the Hon. Charles E. Starr, Judge, presiding.</p>

Agreed Case, submitting for decision the right of a village to use certain land as a street. Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding.

<p>1. Ordinary Care—To be Judged by the Circumstances of Each Case.— Negligence and ordinary care are relative quantities. Where the danger is very great, ordinary care requires closer watchfulness than it does in a case where the danger is only slight. A jury has a right to consider the extent of the danger to a person who was injured, and to determine what ordinary care required of the person charged with negligence.</p> <p>2. Fellow-Servants— Who are, a Question of Fact for the Jury. —Whether a person suing for damages for personal injuries was hurt through the negligence of a fellow-servant, is a question of fact for the jury.</p> <p>3. Same— When the Doctrine Does Not Apply.—It is the duty of a railroad company to furnish to its employes proper appliances and a safe road bed, and it can not justify a failure to do so by showing negligence on the part of a fellow-servant of one who has been injured.</p>

<p>1. Evidence—Admission by Agent.—In a suit for malicious prosecution, the statements of a detective employed by a railroad company, made at the time of a preliminary examination, on a warrant the issuance of which is complained of, are not admissible against the company to prove that the detective acted'as a representative of the company, and within the scope of his authority, in causing the arrest of the plaintiff.</p> <p>2. Same—As to Authority of Agent.—In a suit against a railroad company for malicious prosecution, based on an arrest caused by an agent of the company, the defendant may show that the agent had no authority to make arrests or swear out warrants, unless especially instructed so to do, and that in the particular instance he acted without authority.</p>

<p>1. Damages— When Amount of, Will be Ground for the Reversal of a Judgment.—.Where the damages awarded to a plaintiff are grossly excessive, and against the clear preponderance of the evidence, the judgment will be reversed on appeal.</p>

<p>1. Mechanic’s Liens—The Statute Must be Strictly Construed.—The mechanic’s lien act being in derogation of the common law, must be strictly construed, and no person can have a lien under it without showing a strict compliance with its provisions.</p> <p>2. Same—Notice of Sub-contractor’s Claim.—The notice required by Sec. 80 of the mechanic’s lien act must be in writing, and must be served personally; a notice sent by mail is not sufficient.</p> <p>3. Practice—When Holdings of the Trial Court Will be Sustained. — The holdings of a trial judge should be sustained if they can be justified from the record, and if an order dismissing a petition was correct, it will be affirmed on appeal, although the defects in the petition which justify the dismissal were not called to the attention of the trial court.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Iroquois County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Contracts—Willingness to Perform, a Question of Fact.— Whether a plaintiff who sues for the breach of a contract of sale was ready and willing to perform on his part, is a question of fact for the jury, and where a refusal to deliver the goods sold is proved, evidence of a tender is not essential.</p>

<p>1. Evidence—Improper Basis for Estimates.—In a suit to collect the amount due for excavating done under a contract providing for payment by the yard, it is improper to admit evidence as to the number of days work done, the number of trips made per day, and the capacity of the scrapers used. Such evidence is entirely too unreliable to form a correct basis for making such an estimate.</p> <p>2. Pleading—Special Contracts Under the Common Counts.—Where work was done under a special contract, which was subsequently abandoned by mutual consent, the amount due may b'e recovered under the common counts.</p>

<p>Transcript, from a justice of tho peace. Appeal from the Circuit Court of Kane County; the Horn Henry B. Willis, Judge, presiding.</p>

<p>Bill, for foreclosure. Appeal from the Circuit Court of Whiteside County;- the Hon. James Shaw, Judge, presiding.</p>

<p>Bill, to foreclose a trust deed. Error to the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>1. Promissory Notes.—Proof of Insolvency of Indorser.—In a suit against the indorser of a promissory note, absolute proof of the insolvency of the maker is not required; the plaintiff need only otter prima facie evidence thereof.</p> <p>2. Same—Credits on, upon Foreclosure of Trust Deed Given as Security.—The indorser of a note secured by a trust deed is only entitled to have such note credited with the net proceeds of a sale of the premises described in the trust deed after payment of all costs of the foreclosure proceeding including any solicitor’s fees which were allowed.</p> <p>3. Assignment—Of Trust Deed Securing Notes—What Passes.—The assignment of a note and a trust deed securing it, gives the assignee all the rights of the assignor, and when the trust deed gives the right of election to declare the whole amount due on default in payment of any sum that has in fact matured, the exercise of such election binds the assignor to the same extent as the maker of the notes.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Attachment.—Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Tender—Must be Kept Good,.—A person relying upon a tender must keep it good by bringing the money or other article into court.</p> <p>2. Estoppel—Tenant Can Not Deny Landlord’s Title.—In a suit for possession of property, a tenant who had accepted a lease from the plaintiff and attorned to him, is estopped from setting up any defense under a lease from a former owner of the land.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Sales—Demand for Property Sold.—Where a contract required the delivery of corn and payment therefor on delivery, no demand for delivery or tender of the money was necessary, and if the purchaser was ready, able and willing to pay for the com when delivered, he may maintain a suit for the breach of such contract.</p>

<p>Assumpsit, for rents and profits. Appeal from the Circuit Court of Henry County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Transcript, from a justice of the peace, Appeal from the Circuit Court of Kankakee County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Words and Phrases—“ Long Engagement."—In a suit for a wrongful discharge, it was shown that the plaintiff had written the defendant previous to the employment, saying, “I would prefer your house if you can guarantee a long engagement,” and that the defendant had replied, “ Be here Thursday evening.” Held, that the term “ long engagement ” has no certain meaning; that there was no employment for a definite time, and that the defendant had the right to discharge the plaintiff on giving him the customary notice.</p>

<p>1. Repeals—By Implication Not Favored.—Repeals by implication are not favored in this State, and a statute should not be held to be so repealed if it can be reasonably avoided. Unless it is manifest that a repeal was intended by the legislature, the former act should be considered in force.</p> <p>2. Fraternal Beneht Societies—May Transact Business Outside vf State.—The act of June 19, 1893, authorizing certain companies to do business outside of this State was not repealed, so far as fraternal benefit societies are concerned, by the act of June 22, 1893, in relation to fraternal benefit societies, or the act of the same date in relation to assessment insurance companies.</p>

<p>Creditor’s Bill.—Appeal from Circuit Court of La Salle County; the Hon. Charles Blanqhard, Judge, presiding.</p>

<p>Petition, in probate. Appeal from the County Court of McHenry County; the Hon. Chables H. Donnelly, Judge, presiding.</p>

<p>, Petition, in probate. Appeal from the County Court of McHenry County; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>1. Evidence—Proof of Previous Accidents to Show Condition of Machinery.—In a suit for damages for personal injuries based on the alleged defective condition of a safety appliance on an elevator, it is error to admit proof of a previous accident where there is no evidence to show that it was in consequence of any defect in the safety appliance.</p> <p>2. Same—Tests of Machinery.—In. a suit for damages for personal injuries, based on the alleged defective condition of a safety appliance on an elevator, it is error to exclude the evidence of experts as to the condition of the safety appliance, at the time of a test made shortly after the accident, where the evidence showed that the appliance was then in the same condition as at the time of the accident.</p>

<p>1. Appeals— When They May Be Dismissed.—A motion to dismiss an appeal improperly taken, may be allowed before the term to which, the appeal would take the case.</p> <p>2. Appeal Bonds—Gan Dot Be Amended by Filing Bond of Another Party.—Section 69 of the practice act, providing for the amendment of informal and insufficient appeal bonds, applies only •1 to the party taking such appeal,” and does not authorize the filing of a bond by a paity to the suit, who did not join in the appeal.</p>

<p>Bill, for an accounting. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>Assumpsit, on an insurance policy. Appeal from the Superior Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Official Bonds—Cover Future Transactions Only.—An official bond, which, after reciting the election of the officer, and when his term of office will begin, and that “by reason whereof divers sums of money will come into his hands,” provides that he should pay over all money which shall at any time come into his hands as such officer, covers future transactions only, and its recitals have reference only to moneys coming into his hands subsequent to the execution of the bond.</p>

<p>Trespass oil the Case.—Damages to real property by the construction of a railroad. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Trials—By the Court, Conclusive.—When a controversy is submitted to the court for trial without a jury, a finding upon conflicting evidence will be final</p>

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

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Richard 8. Tuthill, Judge, presiding.</p>

<p>1. Contempt of Court—Record Must Sustain the Conviction.— When the record does not sustain the conviction, it must be reversed.</p>

<p>1. Short Cause Calendar—Sufficient Affidavit.—The following affidavit, “ William C. Malley being first duly sworn, on oath deposes and says that he is the duly authorized agent in this behalf, of the plaintiff in the above entitled cause, and that he verily believes the trial of the above entitled cause will not occupy more than one hour’s time,” is sufficient under the short cause calendar act.</p>

<p>1. Appellate Court Practice—Abstracts and Bills of Exceptions.— An Appellate Court will not review a verdict unless the bill of exceptions purports to contain all the evidence; the same principle applies to an abstract, for the court will not look beyond it to the record for missing evidence.</p> <p>2. Same—Appellee's Brief.—The appellee in his brief may insist upon the insufficiency of the abstract.</p>

<p>Assumpsit, on promissory notes. Appeal from the Superior Court of Cook County; the Hon. William Gr. Ewing, Judge, presiding.</p>

<p>1. Certificate of Evidence—When Necessary.—No certificate of evidence is necessary in a chancery cause, unless it be to preserve oral evidence introduced on the hearing.</p>

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

<p>1. Partnership—Joint Adventures.—Where a transaction is a mere device to obtain the benefits of a partnership, whatever the parties may call it, it will be construed to be a partnership, and the parties to it will be held liable upon its obligations.</p>

<p>1. New Trials—Misconduct of Counsel.—Trial courts ought to visit the penalty of a new trial upon counsel who overstep the limits of fair argument, and all authority demands such a course as being the most effectual remedy in such matters.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>Claims in Probate.—Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

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

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

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

<p>1. Malicious Prosecution—IFhaf is a Justification.—In actions for malicious prosecution, if the defendant had reasonable grounds of suspicion, supported by circumstances sufficient to warrant a cautious man in believing in the guilt of the plaintiff, such suspicion so supported and acted upon in good faith, is a complete justification for the prosecution.</p>

<p>1. Master and Servant—Joint Inability.—Under section 22, chapter 110, R. S.. entitled “ Practice,” an action lies against a master and his servant jointly, for an injury sustained by reason of the negligence of the servant while in the course of his employment.</p>

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

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

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

<p>1. Usury—Note Made in Another State.—In order to sustain the defense of usury to a note made in another State, the defendant must plead and prove the statute which the note violates. Without such a statute there could be no defense on the ground of usury as by common law there was no usury.</p>

<p>1. Contracts—Calling for First-alass Work—Duty of Contractor When Poor Material is Fxirnished.—A suit to'eollectthe amount alleged to be due for presswork and binding, was defended on the ground that the work was poorly done, and that paper furnished by the defendant was spoiled. The plaintiff insisted that the paper when delivered to him was unseasoned and charged with electricity, and that because of these things, the work done thereon was poor. Held, that if the paper was in an unsuitable condition, the plaintiff should not have used it.</p>

<p>1. Garnishment—When Garnishee May Attack Judgment.—A garnishee may attack the judgment against the principal defendant for lack of jurisdiction, but not for mere errors not touching the jurisdiction.</p> <p>3. Attachment—Service by Publication May Expire During Term. —The present statute does not require that the three weeks publication in an attachment suit shall be made ten days before the term at which judgment is taken; if the court is in session ten days after the last publication, the plaintiff may take judgment by default if there is no appearance, even where the suit was brought within less than ten days before the commencement of the term.</p>

<p>1. Memorandum.—The views expressed in Kirk et al. v. Elmer H. Dearth Agency, for use, etc., are conclusive of this case. See page 468 this volume.</p>

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

<p>Bill for Foreclosure, and answer setting up mechanic’s lien. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Set-Off—Claims Must be in the Same Right.--A claim against a partnership can not be set off against a debt due to a member of such firm, and the fact that the person contracting with the firm thought that it really contained only one person, is immaterial.</p>

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

<p>1. Chancery Practice— Oral Evidence at Trial—In a cause which had been referred to a master in chancery to take and report the evidence, the decree recited that the cause was heard “upon the testimony, proofs and exhibits produced by the respective parties, in open court.” Held, that the decree being right in itself, ought not to be interfered with without a showing of what was so introduced.</p> <p>2. Writ of Assistance—Provision for in a Decree Construed.— A clause in a decree providing, “ that in default of surrendering such possession, a writ of assistance may issue in accordance with the practice of the court,” gives no right to the writ without further action by the court, and is not a violation of the rule that, before a writ of assistance can issue, there must be a judicial investigation ascertaining the facts justifying such writ.</p>

<p>1. Negligence —Street Car Companies must give Passengers Reasonable Opportunity to Alight.—A street car company is bound to afford a passenger a reasonable opportunity to alight with safety, and the crowded condition of a car is no excuse for lack of attention to a request of a passenger, that a car stop for him to get off. The failure of a conductor to hold a car until a passenger has a reasonable opportunity to get off at a place and in a manner that would not subject him to injury by a passing team drawing another car, is negligence.</p> <p>3. Damage—For Killing a Boy Five Years Old—$3,000 not Excessive. —A judgment for §3,000 in favor of the administrator of a boy five years of age, killed through the negligence of the defendant, is not excessive compensation for such killing.</p>

<p>1. Corporations—Status of Property of, When Insolvent—The Doctrine at Law and in Equity.—The rule that the assets of an insolvent corporation are a trust fund for the payment of creditors,and that directors can receive no preference or advantage from their insolvent corporation over others, is purely a doctrine of equity, and until a court of equity acts, an assignment of property made by an insolvent corporation, to its directors, or some of them which is otherwise legal, will stand.</p>

<p>Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Memorándum.—This case was before this court at a former term and is reported, with the title reversed, in 50 111. App. 396, which see for a statement of the case and for the reasons governing the decision herein.</p>

<p>1. Negligence—Of Independent Contractor—Employer Not Liable for.—The rule that a master is not liable for the negligence of an independent contractor is not affected by the fact that the contractor is paid the cost of the work and a per cent instead of a fixed price.</p>

<p>Assumpsit, for breach of a contract of sale. Appeal from the Circuit Court of Cook County; the Hon. Charles Q-. Neely, Judge, presiding.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Cook County; the Hon. R. S. Tuthill, Judge, presiding.</p>

<p>1. Judgments—When Not to Be Reversed.—A judgment will not be reversed for a refusal to admit evidence of a thing of which no offer is made except by its name, and of which the record discloses nothing but the name.</p> <p>2. Vebdicts— Against the Weight of the Evidence.—Where the verdict is against the decided weight and preponderance of the evidence, the judgment based upon it ought not to stand.</p> <p>8. Presumption—Of Ownership from the Use of Names.—In the case of railways a presumption of ownership may arise from the fact that the name of the corporation is painted upon cars and locomotives, but such presumption is not conclusive.</p> <p>4. Witnesses—Weight of Testimony.—The testimony of witnesses who, from the nature of their connection with matters in controversy, have affirmative knowledge of such matters, standing unimpeached, is entitled to greater weight than those who speak only by way of inference.</p>

<p>1. Practice—Waiver of Proof of Undisputed Allegations.—A person representing himself to be the executor of one of the parties interested in a suit, filed a petition asking that he be made a party to the suit, as such executor, and an order was entered granting such petition. Fío objection was made to such order and no one questioned the truth of the statements of the petition as to the right of the petitioner to sue as executor. Held, that under the circumstances, no objection could be made on appeal, on the ground that formal proof was not made by such petitioner of his right to sue as such executor.</p> <p>2. Landlord and Tenant—Assignment- of Lease—Lessor's Right of Action on Covenants Running with the Land.—Where a lessee assigns his whole estate, without reserving to himself a reversion therein, a privity of estate is at once created between his assignee and the original lessor, and the lessor has a right of action directly against the assignee on the covenants running with the land, one of which is to pay rent; and this rule holds although the rent reserved in the original lease is not the sum fixed by the assignment to be paid by the assignee.</p> <p>3. Same—Rights and Liabilities of an Assignee or Receiver of the Lessee. —Whether an assignee or receiver will become the assignee of, or bound to pay, rent provided in a lease held by the insolvent, is for the assignee or receiver to determine. But if he continues to remain in occupancy of the demised premises, beyond a reasonable time within which to make an election as to what he will do in that regard, he will be presumed to have elected to assume the lease, and will be bound to pay the rent provided thereby.</p> <p>4. Same—Right of Landlord to Collect Rent of Assignee of Lease.— Where a lessee assigns his whole estate, a privity of estate is at once created between his assignee and the original lessor, and a court of equity should order the payment of the rent to the original lessor, by a receiver of the assignee, there being no reason why it should pass through the hands of the lessee.</p> <p>5. Same—Liability of Assignee of Lease to Landlord.—Where a lessee assigns his whole estate, a privity of estate is at once created between his assignee and the original lessor, and the assignee is bound to see that the rent reserved in the lease is paid to the original lessor, and a payment to the lessee will not release him.</p>

<p>1. Taxes—On Stock and Franchise of Corporation—When not Enjoined as Arbitrary and Unreasonable.—A corporation filed a bill to enjoin the collection of taxes on its franchise and capital stock. The bill alleged that the statement required by law had been prepared and delivered to the assessor, but did not show what were the particulars of such statement; it also claimed that the State board of equalization had disregarded such statement and made an arbitrary and unreasonable tax upon the property of the complainant. Held, that a comparison of the assets and liabilities of the corporation, as set forth in such statement, may have shown that the actual intrinsic value of the shares was very considerable, and that a demurrer to the bill was properly sustained.</p>

<p>1. Master and Servant—Duty of Master to Protect Servant from Injury.—A master is bound to the exercise of reasonable care with reference to all the appliances of his business, and is bound to protect his servants from injury therefrom by reason of latent or unseen defects so far as such care can do so; but the master does not insure his servant against injury, and is only chargeable for damage happening to his servant from defective appliances, when negligence can be properly imputed to him.</p> <p>2. Same—Care to Avoid Injury Required of Servant.—A servant is bound to see for himself such risks and hazards as are patent to observation, and is bound to exercise in the discovery of risks and hazards such opportunities for observation, skill and judgment as he possesses.</p> <p>3. Same—Right of Servant to Presume that Master has Done his Duty.—When the danger from a defective appliance is not patent, the servant has a right to presume that the master has discharged his duty, and that the appliances of the business are reasonably safe and free from hazard.</p> <p>4. Same—-Who are Fellow-Servants.—In order to constitute the relation of fellow-servants between employes of a common master, their duties must be such as to bring them into habitual association, so that they may exercise a mutual influence upon each other, promotive of proper caution.</p> <p>5. Same—The Duty to Furnish Safe Appliances a Personal Duty. —The duty of the master to exercise reasonable care that the machinery, appliances and place to work which he supplies to his servants are reasonably safe, is a personal one, and he can not. by delegating it to another, absolve himself from liability for its non-performance.</p>

<p>1. Evidence—When Transactions of a Deceased Agent May be Proved.—One party to a suit may testify as to the transactions of a deceased agent of the other party with persons not parties to the suit. It is only conversations and transactions between the party suing a deceased agent of the principal sued that are excluded.</p> <p>2. Same—Beadiness to Pay Fare.—•"Where one of the issues in a suit against a railroad is whether the plaintiff was a passenger, to be carried for fare paid, or ready to be paid, he should be allowed to testify that he had money sufficient to pay his fare.</p> <p>8. Passengees—Relationship of Carrier and Passengers — How created.—One who takes a car in which passengers are carried, thereby contracts an enforcible obligation, to pay fare, and thus becomes entitled to the rights of a passenger.</p> <p>4. Same—Not Chargeable With Notice of Rules of Carrier.—A person dealing with a railroad company is not chargeable with notice of the orders and rules of the company, and if a caboose is used for the carriage of passengers, the company will be liable as a carrier of passengers to persons using it, although such use may be against its rules.</p>

<p>1. Bills of Review—Filing Without Leave of Court—Performance of the Original Decree.—The defendants to a bill of review, by appearing and demurring to the bill, waive their right to claim that the bill was irregularly filed without leave of court, and that the performance of the original bill was not alleged. To raise either of such objections, they should, upon their first appearance, move the court to strike the bill from the files or to dismiss the suit.</p> <p>2. Same—And Bills in the Nature of Bills of Review—Joinder of.—. A bill in equity may properly possess the characteristics both of a bill of review and of a bill in the nature of a bill of review. The purpose of such a bill, a review and reversal of a former decree, may be considered, irrespective of whether it be in name of one kind or the other, or partaking of the qualities of both. In this country it is a matter of little consequence what a bill is called.</p> <p>3. Same—Restraining Orders.—Where a bill is filed to review a decree for the payment of money, no stay of proceeding against the original decree should be granted, unless the money thereby ordered to be paid shall be brought into court to abide the result of the bill of review, or security be given for the performance of the original decree in case the bill of review be dismissed.</p> <p>4. Same—Restraints upon the Enforcement of the Original Decree.— It is improper to issue an injunction restraining proceeding under a decree upon the filing of a bill to review such decree; an order, staying proceedings on the decree until the hearing should be asked for, and if granted, is as effectual as an injunction and in accordance with proper practice upon bills of review.</p> <p>5. Laches—As a Bar to an Injunction.—For a party to a suit having notice, though irregular, that his demurrer would be called up on a certain day, to pay no attention to the notice nor to the order entered in pursuance of it, nor to any subsequent proceedings in the suit, nor to a decree entered therein until two years after the date of such notice, is such a showing of laches on his part as will prevent the issuance of an injunction restraining proceedings under the decree while a bill of review stands for hearing.</p> <p>6. Same—As a Bar to a Bill of Review.—Laches constitutes no bar to a pure bill of review brought within five years for error apparent upon the record; but where the ground for relief is newly discovered matter, or material facts which have occurred subsequently to the decree, then the question of laches in bringing forward such matters may, and should, be considered before the propriety of the decree is investigated.</p>

<p>1. Practice—Assignment of En'ors.—A bill was dismissed for want •of equity, and an injunction issued in pursuance thereof was dissolved. Held, that the propriety of the dismissal of the bill could not be considered under an assignment of error stating that “ the court erred in dissolving the injunction.”</p> <p>2. Appellate Court Practice—Technical Objections to Proof Not Ground for Reversal.—A court of appeal may not shut its eyes entirely to what is common knowledge concerning attorney’s fees allowable under the circumstances of a particular case, and if it is clear that an order in that respect is right, it will not reverse a decree and remand a cause for the purpose of removing technical objections to the proof.</p>

<p>1. Practice—Statement of an Offer to Prove.—A mere statement of an offer to prove is not anything upon which a court is called upon to act. The witnesses should be called and questioned, or documentary evidence produced.</p> <p>Judgments—Collateral Attack Upon.—A court will not interfere with the collection of a judgment by confession entered at a previous term, nor inquire into its fairness, upon the petition of an attaching creditor of the judgment debtor.</p>

<p>1. Contracts— Dependent Upon the Acts of Third Persons.—When an obligation to pay money is dependent upon the action of a third person, over whom neither party to the obligation has control, such payment can not be exacted unless the specified act be performed.</p>

<p>Trespass on the Case.—Death from negligence. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Assumpsit, on the common counts. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Mechanic’s Liens—Th,e Act of June 26,1895, is Not Retroactive.— The provisions of the mechanic’s lien act of June 26, 1895, requiring that within ten days after a contract is made the owner shall require, and the contractor shall give, a verified statement of the names and addresses of all persons having sub-contracts, etc., are not retroactive so as to cover contracts made before the act went into force.</p>

<p>1. Custom and Usage—Dealing With Reference to.—A person who employs another to deal for him upon a board of trade must be held as knowing and intending that the business shall be conducted according to the usages and customs of such board, and this without reference to whether he in fact knows what the customs or rules of such board are.</p> <p>2. Gambling—Dealing in Grain.—A sale of grain to be delivered in the future is valid. The statute only prohibits mere options to buy or sell, by which the parties are under no obligation to take or furnish the commodity at all, but may pay the difference in price and thus be discharged.</p> <p>3. Same—“ Ringing up” Transactions on a Board of Trade.—The closing up of transactions on a board of trade for the purchase and sale of grain by setting off one trade against another—in the parlance of the Exchange, “ringing up”—does not make the transactions gambling contracts, and void under the statute.</p> <p>A Same—Dealing on a Board of Trade.—If the understanding between persons dealing upon a board of trade is that nothing is to be received or delivered upon their trades, but that they are to be settled and disposed of by the mere payment of differences, then, under the statutes of this State, the transactions are gambling contracts, and arc illegal and void, and can not form the basis for a recovery.</p> <p>5. Same—Dealing on a Board of Trade—Secret Intention of One Party. —Whatever may have been the secret intention and design of a party dealing with a broker on a board of trade, if the broker traded in such a manner that deliveries could have been compelled, and with the purpose and intent of making actual sales and purchases, and not mere hazards as to the rise and fall of the market, the dealings were not illegal, and a recovery may be had therefor.</p> <p>6. Same—Burden of Proof.—The burden of showing that a transaction is a gambling one is upon the party asserting it.</p> <p>7. Same—A Question of Fact.—Whether or not, in a given case, deals upon a board of trade are gambling transactions, is for the jury to decide in view of all the evidence, and, in the absence of error of law, their finding is conclusive.</p> <p>8. Same—Evidence of.—The fact that a person buying grain on a board of trade was not a dealer in grain; that he had no warehouse in which he could store it, mills in which it could be ground, or business in which it could be consumed; that he was a dry goods merchant, carrying on a business of which dealing in grain was no part, and that he had no idle money in his possession, may all be considered by a jury in determining whether the real purpose of the parties was to actually deal in grain, or merely to do that which the law .pronounces gambling; but they are not conclusive.</p>

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

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

<p>Forcible Entry and Detainer.—Appeals from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding, in Peters v. Balke; the Hon. Edward F. Dunne. Judge, presiding, in Muller v. Balke.</p>

<p>Assumpsit.—Breach of contract. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding.</p>

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

<p>1, Practice—Waiver of Objections to the Declaration.—An objection to a declaration which may be removed by an amendment, and which is not alluded to in a motion for a new trial, is waived.</p> <p>2. Electric Cabs,—Diligence Required of Motormeti.—In an action against a street car company for killing a child, a passenger testified that she saw the child start across the street before the car started, but the motorman did not see the child until it was too late to stop the car. The court below, in trying the case without a jury, was justified in finding that the motorman ought to have seen the child sooner.</p>

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

<p>1. Bill of Exceptions— What Must Appear in.—Without an exception preserved in the bill of exceptions, no ruling, however improper, that does not relate to the pleadings or appear on the face of the judgment, can be reversed in an appellate tribunal.</p>

<p>1. Trial by the Court—Finding Conclusive.—Where the trial is by the court without a jury the finding is, as a general rule, conclusive.</p>

<p>1. Highway—Burden of Proof in Actions for Personal Injuries.— Evidence that a strip of land, although filled with railway tracks and not traveled by teams was, however, traveled daily by a great many persons on foot in going to and from the various industries in which they were employed, who wirhout contradiction spoke of it as a street, is sufficient to warrant the submission to a jury of the question of fact whether the location of an accident was or was not in a public highway.</p> <p>2. Negligence—Bralcemen on Freight Trains.—The failure of a railroad company to keep a brakeman upon the hindmost car of a freight train, while in motion, as required by section 90, chapter 114, B. S., is negligence.</p> <p>8. Verdicts—On Questions of Fact, Conclusive.—In an action for personal injuries the questions as to whether the plain tiff was, at the time of the injury, a trespasser upon the defendants’ premises, or was guilty of contributory negligence, are questions of fact for the jury, and its verdict upon competent evidence is conclusive as to such questions.</p>

<p>1. Due Care—Who is Entitled to the Exercise of, for his Protection. —A laborer for a plumbing company, which had a contract with the defendant to put in water pipes, who was at work digging a trench in close proximity to a steam pipe, is in legal contemplation there by invitation of the defendant, and entitled to the exercise of due care by such defendant for his protection.</p> <p>2. Verdicts—Upon Conflicting Evidence, Conclusive.—The verdict of a jury upon conflicting evidence as to whether an explosion of a steam pipe was due to an inherent latent defect not discoverable by inspection, or to letting steam into the engine while water stood in the pipe, can not be disturbed.</p> <p>3. Witnesses—Competency of a Steam Fitter to Testify as to Cause of Explosion.—A steam fitter, with some, but not very great experience in running engines, who was present at the time of the explosion of a steam pipe and observed something of the. conduct of the engineer, and who saw the pipe and its connections after the explosion, is competent to testify to his opinion as to the cause of the explosion.</p>

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

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

<p>1. Negligence—Questions for the Jury.—Questions of negligence, or the lack of it, are within the especial province of the jury, and when properly submitted must be regarded as settled by the verdict.</p> <p>2. Special Interrogatories—Proper Object of.—The proper object of a special interrogatory is not to obtain answers to particular evidentiary facts, but should be confined to facts which, in their nature, are conclusive upon some question at issue.</p> <p>3. Damages—What can not he Considered in Reduction of.—The mere fact that a person permanently injured physically possesses mental qualifications and acquirements which enable him temporarily, at least, to earn higher pay in a clerkship, where he may sit while working, is no sufficient ground for cutting down the amount of his recovery.</p> <p>4. Damages—$15,000 Not Excessive.—Where a person is physically disabled from all active bodily exertion for the rest of his life—can only walk the streets with crutches, and at the end of four years is suffering great pain—a verdict for $15,000 is not excessive.</p>

<p>Assumpsit, on a promissory note. Payee v. Indorser. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Bill for an Accounting', etc.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>1. Judgment—When the Appellate Court will not Reverse.— Where the plaintiffs are clearly entitled, under the evidence, to the judgment recovered, the Appellate Court will not interfere, although the instructions were not in strict accord with the law.</p>

<p>Bill, for an injunction. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

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

<p>1. Indorser—Can Not be Held as Guarantor.—A person having contracted to assume the liability of indorser can not be held as a guarantor.</p> <p>2. Same—Liability Different from a Guarantor.—The liability of an indorser is conditioned; that of a guarantor is more onerous.</p>

<p>1. Foreclosure—Different Mortgages on Different Premises—Decrees—Jk decree upon a bill to foreclose a trust deed upon certain premises, and a cross-bill to foreclose a junior mortgage upon the same and other premises, which orders the sale of the property covered by such mortgages unless there is paid the amount due upon each, is erroneous.</p>

<p>1. Contributory Negligenoe^íVoí Connected with Acts Complained of.—An act of contributory negligence on the part of the plaintiff not connected with the act resulting in an injury to him. will not prevent a. recovery.</p> <p>2. Instructions—When Properly Refused.—An instruction which tells the jury what acts or omissions constitute negligence or the reverse is properly refused.</p>

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

Assumpsit, upon a certificate of stock issued by a building and loan association. Appeal from the Superior Court, Cook County; the Hon. Fablin Q. Ball, Judge, presiding.

<p>1. Verdicts—Upon Conflicting Evidence.—A verdict upon conflicting and irreconcilable evidence, when there is enough on either side standing alone to make a case, is conclusive.</p>

<p>1. Impeachment—Inconsistent Statements Out of Court.—A witness may be impeached by showing that before the trial he had made statements as to facts inconsistent with the testimony he has given as to the same facts, but he can not be impeached by putting in his statements first and then calling witnesses to contradict them.</p> <p>2. Interest—On Damages for Breach of Contract.—Interest on damages for a breach of a contract, from the time of the breach, is allowable under the rule in Murray v. Doud, 63 111. App. 247.</p>

<p>Foreclosure, of a trust deed. Appeal from the Superior Court of Cook County: the Hon. John Barton Payne, Judge, presiding.</p>

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

<p>1. Chattel Mortgages—To Secure Installments of Bent Maturing in the Future.—A chattel mortgage given to secure monthly installments of rent to become due in the future, evidenced by a series of promissory notes covering a period of two years, according to the terms of the lease, is valid.</p> <p>2. Same—Diligence to Obtain Possession of Mortgaged Property.— The mortgagee in a chattel mortgage to secure the payment of rent, upon the property of a firm in the hands of a receiver, who is prevented from obtaining such rent by distraint or otherwise, by the court in which the receivership was pending, can not be charged with a want of diligence in taking possession of the property under the mortgage.</p> <p>3. Same—To Secure Debts Becoming Due by Installments.—Where the indebtedness secured by a chattel mortgage becomes due by installments, and the mortgage authorizes the mortgagee to take possession of the property on default of the payment of an installment, he may, but is not bound to do so.</p>

<p>1. Appellate Court Practice—In Affirming Deorees.—The Appellate Court, in affirming a decree, will not collate and recapitulate in its opinion the evidence contained in the record merely to demonstrate that the determination by the court below of a question of fact is right.</p>

<p>1. Superior Court—Jurisdiction of Removal of Causes.—-The Superior Court of Cook County has jurisdiction to determine as to whether, upon the presentation made to it, an order of removal, under the United States Removal Act, should be made transferring the cause to the Federal Court.</p> <p>8. Removal of Causes—Question of, How Determined.— On an application for the removal of a cause from a State to a Federal court, the question as to whether the petitioner is entitled to have the cause removed is to be determined by an inspection of the record in the State court.</p> <p>3. Same—Failure of Petitioner to File a Bond.—A. State court may properly refuse to allow the prayer of the petition for the removal of a cause to the Federal court where the petitioner fails to make and file with his petition a bond, with good and sufficient sureties, as required by the Federal statute.</p> <p>4. Foreign Corporations—Power to Accept and Execute Trusts, etc.—A foreign corporation needs no statutory permission to do in this State what it may lawfully do at home. By general comity, in the absence of positive directions to the contrary, corporations created in one State or Territory, are permitted to carry on any lawful business in any other State or Territory, and to acquire, hold and transfer property there, the same as domestic corporations may do.</p> <p>5. Same—Rights and Liabilities.—Foreign corporations, and the officers and agents thereof, doing business in this State are placed on an equality with corporations of like character organized under the general laws of this State, to the extent that they shall exercise no greater or different powers, and shall be subject to the same regulations and restrictions, and governed by the same laws in these respects.</p> <p>6. Same—Acting as Trustee in this State.—A foreign corporation accepting and acting as a trustee under a deed vesting it with power and discretion, among other things, in a certain contingency, to enter into and take possession of all property conveyed by such deed, and hold and operate the same by such agent and managers as it may appoint; collect and receive all moneys and revenues arising from such management, and apply the same to its expenses in the performance of the trust, including a reasonable compensation for its services, etc.; next, to the maintenance and operation of the property including the payment of taxes, assessments and other charges, damages, etc.; and next, to the payment pro rata of the interest due and in default of certain bonds, comes within the purview of section nine of the act “ to provide for and regulate the administration of trusts by trust companies” (approved June 15, 1887); and such corporation can not act under such act in this State without first complying with its provisions.</p> <p>7. Parties—Who are Necessary in Equity.—In a suit in equity, to remove a trustee where the cestuis que trust are numerous, it is not necessary that all of them should be made parties to the suit.</p> <p>8. Same—By Representation.—Where it appears that a particular party, though not before the court in person, is so far represented by others that his interests receive actual and efficient protection, the decree may be held to be binding upon him.</p> <p>9. Freehold and Franchise— When Not Involved.—la a proceeding in equity, to remove a trustee appointed in a deed of trust of real and personal property, neither a freehold nor a franchise is involved.</p>

<p>1. Contracts—Under Seal—How Modified.—The terms of a contract under seal can not be varied by another instrument not under seal, executed subsequently.</p> <p>2. Building Associations—Presumptions as to Authority of President and Secretary.—A court will not presume that the president and secretary of a building association had authority to join in the execution of an instrument stating that a person who had made a note to the association was acting for a third party in so doing, and declaring such note to be the obligation of such party.</p> <p>3. Set-off—Of Matured Stock of a Building Association Against a Note to the Association.—In a suit to foreclose a mortgage to a building association, it is proper to set off against the amount due under the mortgage any sum that may be due the defendant on matured stock in the association held by him.</p> <p>4. Appellate Court Practice—Abstracts Should Show Error Complained of.—This court will not hunt through the transcript to find facts to support or refute the assigned error. The facts necessary to support an assignment of error should appear in the abstract.</p> <p>5. Same—Costs of Abstract Filed by Appellee.—The cost of an additional abstract filed by an appellee will not be taxed against the appellant where the court does not find it necessary to refer to such additional abstract.</p> <p>6. Amendments—Of Decrees.—The description contained in a decree for foreclosure may be corrected, from matter appearingupon the record, after the filing of an appeal bond.</p>