Volume 69 — Illinois Appellate Court Reports

<p>1. Negligence—A Question of Fact for the Jury.—Whether the methods adopted by a railroad company were inconsistent with its duty to exercise reasonable care to avoid injury to people at a crossing, and whether a person injured exercised that degree of care which an ordinarily careful and prudent person would exercise under the circumstances, are questions of fact for a jury.</p>

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

<p>1. Rescission— Offer to Return Property Received—Tender.—A, desiring to rescind a contract with B, said to him : “ I will give you back the notes, and you give me back the goods; ” to which B replied : “ I won’t do that; not at present, anyhow.” Held, that this was a sufficient offer by A to rescind, and that a formal tender of the notes was not necessary.</p> <p>2. Same—Knowledge of Fraud.—That a party wishing to rescind a contract, did not then know of the fraud which gave him the right to do so, and was only afraid, does not affect his right to rescind.</p> <p>3. Instructions—To be Considered Together and in Connection with the Evidence.—An instruction should be construed in connection with the other instructions which were given, and with the evidence which was introduced; and if, from a consideration of the entire record, it is plain that no harm was done, minor inaccuracies will not be ground for a reversal.</p>

<p>Mechanic's Lien Proceedings.—Appeal from the Superior Court of Cook County; the Hon. John Babton Payne, Judge, presiding.</p>

<p>1. Specific Performance—Necessary Allegations in Bill for.— An averment of good title in the vendor is an essential part of a bill for the specific performance of an agreement for the sale of land.</p> <p>2. Same—Proof of Title Required.—Evidence that the complainant, in a bill for the specific performance of a contract for the sale of land, traced his title to a warranty deed made a little more than seven years before the bill was filed, by persons in whom no title was shown, is not sufficient to sustain a decree; and the fact that the defendant refused to examine an abstract of title is immaterial.</p>

<p>Assumpsit, for breach of contract to sell shavings. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>1. Copt of Account Sued On—When a Part of the Record.—The copy of an instrument sued on, filed in an action at law, is not a part of the record unless embodied in a bill of exceptions.</p>

<p>Bill, for foreclosure. Appeal from the Superior Court of Cook County: the Hon. John Barton Payne, Judge, presiding.</p>

<p>1. Torts—Committed by Several Persons Acting Together—Liability for.—Where several tort-feasors have contributed to the same end, either may be held responsible for the entire tort.</p>

<p>1. Former Decisions—In the Same Case are Binding.—For the lower court, and for this court on a second appeal, the decision on the first appeal is the law of the case.</p>

<p>Debt, with attachment in aid. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Short Cause Calendar—Motion to Strike Cause from.—It was alleged in support of amotion to strike a case from the “short cause calendar ” that the attorney making the motion went to the clerk’s office, on receiving notice that the necessary affidavit had been filed, but found no affidavit where it ought to have been, if filed, nor any registry of such affidavit. It did not appear that he made any inquiry for the affidavit, nor whether such affidavit was in fact then on file or not. Held, that the motion was properly denied.</p>

<p>Trespass, for a wrongful levy. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Debt, on a judgment, with counts on a bill of exchange. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.</p>

<p>Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding.</p>

<p>1. Depositions—Improper Opening of—How Shown in Court of Appeal.—The fact that a deposition was opened or removed from the files by the attorney for one of the parties, can be made to appear only by a bill of exceptions.</p> <p>2. Appellate Court Practice—Certified Copies of Orders.—The filing of a certified copy of a general order for the opening of depositions, does not bring such order before a court of appeal; that can be done only by a bill of exceptions.</p> <p>3. Pleading—Leave to File Additional Pleas—Statute of Frauds.— The granting of leave to file additional pleas is within the discretion of the court, and refusal of leave to plead the statute of frauds is seldom held to be an abuse of discretion.</p> <p>4. Contempt—Improper Opening of Deposition.—If an attorney in a suit opens a deposition in such suit without an order of court he is guilty of contempt and may be dealt with accordingly.</p>

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

<p>1. Pleading—The Rule Requiring Certainty in Pleas Applied.—The defendant in a suit brought by the assignee of a promissory note filed a plea alleging that he had executed a lease of certain premises to the payee of the note; that payment of part of the rent provided for had been released; that desiring to assign the lease as originally executed he had made the note sued on in consideration of an agreement of the payee to pay the rent provided for by the lease, and to perform its covenants; that the lease had been assigned; that the plaintiff knew these facts when he purchased the note, and that the payee had failed to pay the rent provided for by the lease or to perform its covenants. The plea -failed to show that the lessee had notice to whom he should pay the rent or to state the nature of the covenants which he had failed to perform. Held, that the plea was uncertain and insufficient and that a demurrer was properly sustained.</p> <p>2. Same—Failure of Consideration Under the General Issue.—In an action on a promissory note, where the common counts are contained in the declaration, if the note is read in evidence under the common counts, the defense of a want or failure of consideration may be shown under the general issue.</p>

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

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

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

<p>1. Evidence—Objections to, Should be Speaijtc.—Specific objections should be made in the trial court to the introduction of evidence if the propriety of its introduction is to be questioned on appeal.</p>

<p>Trespass on the (Jase, for malicious prosecution. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

Trover, for the wrongful taking of property under a distress warrant. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.

<p>Bill, to set aside a judgment. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Alimony—Can Not be Allowed to a Husband.—There is no law in this State authorizing the allowance of alimony to a husband.</p>

<p>1. Evidence—Opinion on Matters of Common Knowledge.—The opinions of experts—persons instructed by experience—are in many cases admissible as evidence, but not when the inquiry is into a subject-matter, the nature of which does not require any peculiar habits or study, or scientific knowledge to understand it.</p> <p>2. Same—Opinions of Experts in Cases Where the Facts can he Ascertained.—The opinions of witnesses should not be received as evidence where all the facts upon which such opinions are founded can be ascertained and made intelligible to the court or jury.</p>

<p>1. Appeals—Effect of, on Receivership Proceedings.—When an appeal from a decree appointing a receiver for a corporation is perfected, such appeal becomes, in effect, a supersedeas, and operates to prevent any distribution or application by the trial court of the assets of the corporation.</p>

<p>1. Evidence—Of Title to Land.—A warranty deed from a person in whom no title is shown is not sufficient to prove the ownership of land in a suit in chancery where the answer denies the allegations of the bill, even though the allegation as to ownership is not specifically contested.</p> <p>3. Equity Pleading—Facts not Admitted are in Issue.—In chancery-everything alleged in the bill, and not admitted by pleadings of the defendant, is in issue.</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>Petition, in probate. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

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

<p>1. Construction of Written Instruments—Release of Covenants in a Lease.—A release from all liability or obligation to perform any of the covenants and agreement of a lease includes the obligation to pay rente due and to become due.</p>

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

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

<p>1. Verdict—When Opposed to the Evidence.—When the verdict is clearly opposed to the overwhelming evidence furnished by the plaintiffs own statement, out of court, on the vital questions at issue, the court should not hesitate to set it aside.</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. Presumptions—Where the Declaration is not Abstracted.—Where the declaration is not shown by the abstract, if the evidence sustains any cause of action, the court will presume that the declaration has well stated it, and the judgment must stand, but if upon no theory of law a recovery could be sustained under the evidence, then the j udgment must .be reversed.</p> <p>2. Damages—Sale of a Burglar Proof Safe.—Appellants sold to appellee a safe for $175, warranting to be burglar proof, if certain directions furnished for locking it were followed; the directions were incomplete, and although followed, burglars, without the use of force, opened it and stole $441.05. In an action upon the warranty the appellee recovered the amount stolen. Held, the recovery was proper.</p>

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

<p>1. Instructions—To Find for the Plaintiff. —Under the evidence in this case the court finds that the instruction to find for the plaintiff was-proper.</p>

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

<p>1. Fraud—In the Consideration of Sealed Instruments.—At law, fraud in the consideration of a sealed instrument is no defense.</p>

<p>1. Verdicts—Conclusive.—A verdict that the defendant was guilty of negligence and that the plaintiff was not, is, ordinarily, the end of the contest.</p>

<p>1. Decree—When a Bar at Law.—A decree of a court of equity is a bar at law to any other proceeding between the same parties in the same cause of action.</p> <p>2. Guarantor—Discharge When the Principal Debt is Extinguished.—The difference between sureties who directly and absolutely undertake to pay, assignors or indorsers of negotiable instruments who contingently undertake to pay, and guarantors who undertake that the principal shall pay, is merely formal, their rights, so far as dependent upon the relations of the creditor and the principal, are the same. If by any means the principal is discharged, generally the debt is extinguished and the guaranty that he will pay it ended.</p>

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

<p>1. Malicious Prosecution—Probable Cause.—A belief of the guilt of the accused, founded on circumstances tending to show that he has committed a criminal offense, is sufficient to show probable cause.</p> <p>3. Same—Advice of Counsel.—If a party communicate to counsel all the facts bearing upon the guilt of the accused, of which he has knowledge or could have ascertained by reasonable diligence, and in good faith acts upon the advice of such counsel, he can not be held responsible in an action for malicious prosecution for his conduct.</p> <p>3. Same—Advice of Counsel a Question of Fact.—It is a question of fact, in an action for malicious prosecution, whether a party has fairly communicated to his counsel the facts within his knowledge, and used reasonable diligence to ascertain the truth, and whether he acted in good faith upon the advice received from counsel.</p> <p>4. Judgments—Effect of a Reversal.—The reversal of a judgment by the Ax>pellate Court destroys its effect as an estoppel; the judgment no longer effects a merger of the cause of action, and it does not bar a second action on the same demand.</p>

<p>1. Instruction— To Find for the Defendant.—The court discusses the evidence in this case and reverses the judgment for the refusal of an instruction to find for the defendant.</p>

<p>Motion to Vacate a Judgment.—Appeal from the Circuit Court of Cook County: the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Judgment—Against the Preponderance of the Evidence.—Where the clear preponderance of evidence is against the finding, the judgment based upon it will he reversed.</p>

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

<p>1. Solicitous—Duty of in Preparing Decrees.—It is the duty of solicitors obtaining orders and decrees in chancery, to prepare them and see that they are recorded, and they who neglect this duty can not complain if it is left undone.</p> <p>2. Injunctions—Orders for Should Appear of Record.— An order made by the Circuit Court for an injunction should appear by an entry thereof by the clerk upon the record of the court.</p> <p>3. Same —Void Orders.—An order for an injunction in a suit pending in the Circuit Court signed by a judge of said court between seven and eight p. M., at his private residence, after he had been, during the day, sitting as a judge in the Criminal Court and not in the Circuit Court, is void.</p> <p>4. Courts—Rowers of the Judge After Adjournment.—After a court adjourns for the day, the judge carries no judicial powers with him from the court room. An order for an injunction, signed by him at his lodgings after such adjournment in term time, is void.</p>

<p>Assumpsit, for physician’s services. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Judgments—Warranted by Law and Evidence.—A judgment warranted by the law and the evidence will be affirmed.</p>

<p>1. Appellate Court Practice—Affirmance on Insufficient Abstract. . —An abstract which does not show the matters upon which rulings of • the court were excepted to, but merely refers to a page of the record for .them, is insufficient.</p>

<p>Trespass on the Case, for personal in juries.—Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

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

<p>1. Actions—Names of, Before Justices of the Peace.—la. actions before justices oí the peace, the nature of the action is such as the evidence makes it.</p> <p>2. Set-off—Claims for Damages.—A claim for unliquidated damages can not be set off against a claim based upon a contract totally disconnected with the subject-matter of such damages.</p> <p>3.' Actions—Forms of, token Optional Before a Justice.—A plaintiff suing before a justice of the peace on a cause of action which would, had the case been commenced in the Circuit Court, have given him the right to have brought an action of trespass de bonis asportatis, or trover, or an action of assumpsit, has a right to decide whether he wishes to have his action treated as one of assumpsit or tort.</p>

<p>Assignment for the Benefit of Creditors.—Error to the County Court of Cook County; the Hon. Orrin H. Carter, Judge, presiding.</p>

Trespass on the Case, against a railroad for a failure to fence its track. Appeal from the Circuit Court of Wabash County; the Hon. Silas Z. Landes, Judge, presiding.

<p>1. Official Bonds—General Rule Where Plaintiff has Misled Officer.—The general rule is that the penalty of an official bond can not be invoked where the plaintiff has done anything directly or indirectly to mislead the officer.</p> <p>2. Cities and Villages—Estoppel to Deny Validity of Directions to City Treasurer.—A city should not be heard to complain that in pursuance of its own ordinances its treasurer accepted warrants of former years for licenses or treated funds claimed by the school authorities as part of the common funds of the city. He should not be required to overrule the judgment of the council as to whether such course could be safely pursued, nor should he be required to suffer if their action in that regard was irregular, unwise or illegal.</p> <p>3. Same—Treasurer's Duty and Liability as to Anticipation Warrants.—A city can not complain of its treasurer for not paying warrants drawn against future receipts not appearing on their face to be valid anticipation warrants, nor can it be permitted to insist that its treasurer was bound to know that such warrants were wrongfully drawn and recover from him if he did pay them.</p>

<p>Petition, for substitution of one drainage commissioner for three. Appeal from the Circuit Court of Lawrence County; the Hon. E. D. Youngblood, Judge, presiding.</p>

<p>I. Appeals—Lie Only from Final Judgments.—Appeals to this court from Circuit Courts will lie only in causes where a final judgment or decree has been entered.</p>

<p>1. Instructions—The Rule as to Accuracy.—While it is true that there are many cases holding that an error in one instruction may be cured by a correct statement of the law in another, in a case which is close on the facts, the instructions, as a rule, should all state the law accurately.</p> <p>2. Same—Inaccuracies in—When Cured by Other Instructions and When Fatal.—The law is, that if an instruction is too broad, or too restrictive, or is doubtful, or leaves room for improper inferences, it may be cured by another instruction; but if given on a vital question, such as the exercise of care by the plaintiff suing for personal injuries, and the evidence is conflicting and doubtful, then it should be correct in itself, without reference to others in the series or to those of the opposite party. •</p> <p>3. Ordinary Care—By the Plaintiff Essential in a Personal Injury Case.—In a personal injury case, an instruction saying to the jury, “ if you believe from the evidence in this case, if the defendant had complied with the law the accident would not have occurred, then you should find for the plaintiff,” entirely omits the element of care on the part of the plaintiff, and is therefore erroneous.</p>

<p>Assumpsit, for royalties. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding.</p>

<p>1. Appeals—Record Should Contain 'Copy of Bond, and Show Approval Thereof.—A record filed in this court must contain a copy of the appeal bond, in order that this court may see whether the appeal has been properly perfected, and the record should show that the bond was duly approved within the time fixed by the court.</p> <p>2. Same—Bond Must be Approved and Filed Within the Timé Required.—A defective appeal bond, if approved and filed in apt time, may be amended; but if the bond, whether sufficient or insufficient, is approved or filed after the time fixed by the court, there is an absolute failure to perfect the appeal, which can not be cured.</p> <p>3. Same—May be Dismissed by the Court, of its Own Motion, in a Proper Case.—The Appellate Court may, of its own motion, dismiss an appeal when the same has not been perfected in accordance with the order of the trial court.</p>

<p>Assumpsit, on promissory notes. Appeals from Circuit Court of Saline County; the Hon. Alonzo K. Vickers. Judge, presiding.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Saline County; the Hon. Alonzo K. Vickers, Judge, presiding.</p>

Trespass on the Case, for personal injuries and injuries to personal property. Appeal from the Circuit Court of Monroe County; the Hon. Benjamin R. Burroughs, Judge, presiding.

<p>1. Instructions—Accuracy Required.—In a case which is very close on the facts, the instructions should be accurate, and especially so where the evidence is so evenly balanced that it would support a verdict either way. Inaccuracy on one side in such a case will not be cured by accuracy on the other.</p> <p>2. Master and Servant—Duty of the Master in Providing Machinery. —An instruction telling a jury that it is “ the duty of a master to furnish his servant with tools and appliances that are reasonably safe,” is erroneous, as the law is, that he is only required to use reasonable and ordinary care and diligence in providing suitable and safe machinery.</p> <p>3. Appellate Court Praotioe.—As to Refused Instructions, When Abstract is Incomplete.—This court will not consider an assignment of error complaining of the refusal of the trial court to give certain instructions when the abstract does not contain all the instructions that were given so that the court can see whether similar instructions were given.</p>

<p>1. Certiorari—Petition for writ of, and Accompanying Affidavit are Amendable.—Under the statute a petition for a writ of certiorari and the affidavit thereto are amendable, and a refusal to allow an amendment to be made is ground for reversal of the judgment, if the proposed amendment would cure the defects and make the petition sufficient.</p> <p>2. Appeals—Failure of Justice to Keep Promise to Give Notice of Rendition of Judgment Does not Excuse Failure to Take.—The promise of a justice of the peace to inform the attorney for one of the parties when he would enter judgment is not a judicial act or arrangement, and can not be binding so as to effect the opposite party’s rights or be set up as a cause for not taking an appeal in time.</p> <p>3. Justices—Have no Power to Amend Their Records.—A justice of the peace has no right to alter or amend his records after they have once been made.</p>

<p>Transcript, from a justice of the Peace.—Appeal from the Circuit Court of Massac County; the Hon. Alonzo K. Vickers, Judge, presiding.</p>

<p>1. Negligence—Showing Necessary in Actions Based on.—In actions based on mere negligence the plaintiff must show not only the negligence of the defendant, but also the exercise of due care on his own part.</p>

<p>1. Pbactice—Time of Filing Declaration.—The provision of the practice act which requires a declaration to be filed ten days before the second term of the court, only requires the filing of the declaration before the. second term at which the plaintiff may be required to plead.</p> <p>2. Judgments—Findings of Amounts due, do Not Amount to.—The following entry does not amount to a judgment: “The court finds there is due the plaintiff the sum of $400; it is therefore ordered that said E. A. Medley, plaintiff, have and recover judgment against the said Adam Emig, defendant, for the amount of said judgment, together with the costs of this proceeding, and that execution issue therefor.”</p>

<p>Trespass, for an assault and battery. Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.</p>

<p>Debt, on a replevin bond. Appeal from the Circuit Court of Effing-ham County; the Hon. Edmund D. Youngblood, Judge, presiding.</p>

<p>1. Conditional Sales—Justice not Liable for Failure to Docket Acknowledgment of.—An instrument whereby title is to pass to a purchaser on condition of his paying for the property, although it be actually delivered to the purchaser, is a conditional sale and not a chattel mortgage, and a justice of the peace acknowledging such an instrument is not liable for a failure to enter a memorandum thereof on his docket, there being no request for him to do so.</p>

<p>1. Master and Servant—Voluntary Choice of Dangerous Mode of Doing Work.—When a servant voluntarily chooses a dangerous mode of performing his work, when a safe mode is. open to him, and is injured thereby, he can not recover.</p> <p>2. Same—Limitations on the Duty of Master to Keep Machinery in Repair.—When a master has furnished machinery that is suitable for the business, both as to material and construction, to a servant experienced in the use of the machinery, he has performed his duty, and before he can be made liable for injuries received by the servant, notice must be brought home to him that it is out of repair.</p>

Trover, alleging the conversion 'of four mules and other property. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding.

<p>1. Homesteads—Errors in Judgment by Commissioners to Assign$Evidence of Undervaluation to Show Fraud in Assigning.—The mere fact that commissioners appointed by a sheriff to set off a homestead may have erred in their judgment as to the value of the property, would not justify a court of chancery in setting aside their proceedings. It is proper, however, upon the question of fraud to show that the property was greatly "overvalued by the commissioners.</p> <p>2. Same—Commissioners to Assign Should be Fairly Chosen—When Fraud in Appointment of may be Inferred.—The law contemplates the selection of fair-minded, disinterested and competent men to act as commissioners to set off homesteads, and if a sheriff, in his zeal to collect a judgment, selects one man as a commissioner who is dependent on him for employment, another who has been frequently associated with the judgment creditor as an employe, anda third whose statements impeach his fairness, and these men place an excessive valuation upon the property, a purpose on the part of the sheriff, judgment creditor and commissioners to make the judgment debtor pay the execution regardless of his homestead rights may be legitimately inferred.</p> <p>3. Fraud—How Propen.-—Questions of fraud are not to be determined solely by the denials and conclusions of the parties interested, but by the circumstances and the words and acts of the parties at the time, whereby the mind is laid bare and its fraudulent purpose exposed.</p>

<p>1. Husband and Wife—Liability of Husband for Support of Wife. —If a husband fails or refuses to support bis wife and children, and consents to their living with and being supported by another he will be liable for such support.</p> <p>2. Practice—Taking the Case from the Jury.—Where there is evidence on which in the eye of the law the jury can reasonably find in favor of the party holding the affirmative, it must be left to them to determine its weight and effect, and the exclusion of such evidence, and the instruction of the jury to find for the other party, is error requiring a reversal on appeal.</p>

<p>1. Conditional Sales— Bights of the Parties.—A contract of sale-which provides that the title to the property, and the ownership and right, of possession thereof, shall not pass to the vendee until the purchase price-is fully paid, and that the vendor may take possession of the property whenever he shall deem himself insecure, is a conditional sale, the title does not vest in the vendee until the conditions of the contract are fully complied with, and the vendor has the right, as between the parties, to-take possession of the property in accordance with the terms of the contract.</p> <p>2. Same—Widow of Vendee Claiming Award Not a Third Party.— The widow of the vendee, under a conditional contract of sale, attempting to collect an award, is not a third party to the contract within the meaning of the law, but stands in her husband’s place and can not lay claim to property which was not his. If the husband at his death was not the owner of the property, his death will not give the widow a right to claim it on her award.</p>

<p>1. Sureties—May be Preferred by Failing Debtor.—A debtor may secure, indemnify or otherwise protect his surety in preference to other creditors. A surety stands in just as favorable relation to the right of preference as any other creditor, even though the debt is not due.</p>

<p>Trial of the Rights of Property.—Appeal from the Circuit Court of Clay County; the Hon. Edmund D. Youngblood, Judge, presiding.</p>

<p>Trespass on tlie Case, for personal injuries. Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Barker, Judge, presiding.</p>

<p>Trial, of the rights of property. Appeal from the Circuit Court of Marion County; the Hon. Joseph P. Robarts Judge, presiding.</p>

<p>Bill, for an injunction. Error to the Circuit Court of Jefferson ’ County; the Hon. Edmund D. Youngblood, Judge, presiding.</p>

<p>Mechanic’s Lien.—Error to Circuit Court of Clinton County; the Hon. Alonzo S. Wilderman, Judge, presiding.</p>

<p>1. Appeals—In Bastardy Cases.—An appeal in a bastardy proceeding lies directly to the Appellate Court.</p>

<p>1. Limitations—New Promise by a Corporation.—A new promise by one having authority to bind a corporation generally is sufficient to remove the bar of the statute of limitations as to such corporation.</p>

<p>Assumpsit, on a promissory note. Appeal from the County Court of Franklin County; the Hon. W. F. Dillon, Judge, presiding.</p>

<p>Assumpsit, breach of contract. Appeal from the County Court of Jefferson County; the Hon. William T. Bonham, Judge, presiding.</p>

<p>1. Building and Loan Associations—Mortgage Indebtedness Not to be Reduced by Premiums.—In a suit to foreclose a mortgage by an insolvent building and loan association, the defendant is not entitled to have his mortgage indebtedness reduced by deducting therefrom the premiums paid by him to such association for his loan and legal interest thereon.</p> <p>2. Same—Borrowing Members—No Right to Withdraw Premiums.— A borrowing member of a building and loan association assumes, with other stockholders, .all the risks incident to such relation, and when the association becomes insolvent, he has no more right to withdraw from its assets premiums paid in by him than other stockholders have to withdraw the payments made by them of installments, interest and premiums.</p>

<p>1. Instructions—References to the Declaration.—In an action on the case for personal injuries upon a declaration sufficient in law, it is proper to instruct the jury that if they believe from the evidence that the deceased was killed in manner and form as charged in the declaration, while in the exercise of due care and caution for his own safety, and engaged in the discharge of his duty to his employer as a switch-man, they should find for the plaintiff and assess his damages, etc.</p> <p>2. Same—Not Shown by the Abstract.—An instruction not shown by the abstract can not be considered by the court.</p> <p>8. Evidence—Of the Exercise of Ordinary Care.—In the absence of direct and positive testimony, the fact that a deceased party was not guilty of negligence .may be proved by reasonable inferences from his habits, and the circumstanc es surrounding him at the time of his death, as shown by the evidence.</p> <p>4. Ordinary Care—How Shown in the Absence of Direct Testimony. —In determining the question as to whether a deceased person was in the exercise of ordinary care at the time of an accident which resulted in his death, the jury may in the absence of direct testimony consider the fact, if shown by the evidence, that the deceased was bright, sober, zealous and careful, and that he was bound to life and to the exercise of care for its preservation by family ties, etc.</p> <p>5. Negligence—Railroads—Construction of Track.—It is negligence in the construction of its track by a railroad company to permit spaces between the ties to remain unfilled at places where there are no movable switches requiring such unfilled spaces.</p> <p>6. Husband and Wipe—Power of the Husband to Limit the Wifds Mccovery by Contract.—The value of the interest of the wife and children in the life of the husband and father, and the amount of their financial loss in case of his death, is fixed by the statute, and it is wholly beyond, the power of the husband and father to alter or abridge their right of recovery by any contract which he may enter into.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. Alonzo S. Wilderman, Judge, presiding.</p>

<p>Attachment and garnishment. Appeal from the City Court of Canton; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>1. Statutory Penalties—Debí the Appropriate Action.—Debt is the appropriate action for the recovery of a penalty provided by statute.</p> <p>2. Chattel Mortgages—Sale Under, Act of 1896.—The purpose of the act of June 21, 1895, is to secure to the mortgagor, whose property has been sold under a chattel mortgage, full information as to the sale, the amount received for each article, and the expenses of the sale, etc.</p> <p>3. Same—When the Act of 1896 Does Not Apply.—When the validity of a sale under a chattel mortgage is denied, and the mortgagor held to account as a trespasser, the act of June 21, 1895, relating to sales under chattel mortgages, does not apply.</p>

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

<p>1. Negligence—Traveling on a Defective Street. —The fact that a plaintiff suing for injuries received on a defective street had knowledge of the defects is proper for consideration by the jury in arriving at a conclusion upon the question whether he acted with due care, but it is not, as a matter of law, proof of negligence.</p> <p>2. Same—Knowledge of Defects in a Street.—The mere fact that a plaintiff suing for injuries received on a defective street, though in possession of knowledge of the defects, was not at the time thinking of the condition of the street, does not necessarily bar a recovery, but may be considered, together with the other circumstances in proof, in deciding whether the plaintiff used ordinary care to avoid injury.</p>

<p>1. Wills—Construction of. Mistake in the Name of a Legatee.—A mistake in the name or description of a legatee, whether an individual or corporation, will not render a bequest void if the name and description used in the will, as applied to the facts and circumstances, will identify such person or corporation from others, and .whenever parol evidence becomes necessary to remove such uncertainty the court may inquire into any material facts relating to the person who claims under the will, for the purpose of identifying the person intended.</p> <p>2. Same—Parol Evidence. Admissible to Identify Legatee.—Where a legatee is named in a will, and there is no legatee of that exact name, parol evidence is admissible to show what person or society was intended by the testator.</p> <p>3. Misnomer.—In Name of a Legatee. -A misnomer in a will, designating the organization 'intended to be benefited by a legacy will not defeat the bequest if it can be reasonably shown what society in fact was contemplated by the testator.</p>

<p>Trespass on the Case, for damages sustained by the construction of public improvements. Error to the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

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

<p>1. Master and Servant—Risks of the Employment.—When a person contracts an employment with the distinct understanding that a certain boat, with its engine and boilers therein, is to be used in excavating a ditch, and that a certain engineer is to have charge and control of the same, and that he is to work under his direction, it is a perversion of the law to say that under such circumstances it is the duty of the employer to use reasonable care to provide safe machinery and a competent engineer, for the reason that the parties knew that the boat, equipped as it was, was to be used, and that this engineer was to be in charge.</p>

<p>1. Demurrers—Waiver of.—Pleading to the merits after a demurrer has been overruled amounts to a waiver of the demurrer and an admission that the pleading demurred to states a legal ground of action or defense.</p> <p>2. General Issue—Recoupment under Plea of.—In a suit on notes given for the rent of a tract of land, the tenant may prove, under the general issue by way of recoupment, that the land was not tiled as the landlord represented and that he suffered damages in consequence.</p> <p>3. Parol Evidence—Failure of Consideration of a Note—Other Instruments as Part of the Transaction.—The provisions of Sec. 9, Chap. 98, R. S., allowing the defense of failure of consideration of a note, has necessarily modified the rule of evidence against varying a writing by parol proof. And the rule must give way not only as to the note, but also as to any other written instrument executed in connection with and forming a part of the transaction out of which the note arose.</p> <p>4. Parol Evidence—To Vary a Written Instrument—When the Rule A gainst, is Waived. —The general rule that either party to an agreement, which has been reduced to writing, may insist that the writing alone shall be resorted to, to determine the terms and conditions of the agreement, may be waived, and is waived, if the parties enter mutually into a contest to establish the agreement by parol evidence.</p> <p>5. Warrantt—Mere Expressions of Opinion Do Not Amount to.— To constitute a warranty or to amount to a false representation, it is essential that the statement relied upon must be of some material fact and not merely an expression of opinion.</p> <p>6. Evidence —When Statements as to Condition of Land Are Not Opinions.—Where a landlord knew where tiling on his land had been placed, the size of the tile and how it had operated, it is not unfair to assume that he knew whether additional tile was required, and therefore not unreasonable to consider his statements, with reference thereto, not as mere expressions of opinion, but as statements of fact, based upon actual known results. At least the question may properly be submitted to a jury to decide.</p>

<p>1. By-Laws—Typographical Union—A Rule Construed.—In a suit against the publishers of a newspaper, it was shown that they had adopted the rules of the Typographical Union in regard to the operation of typesetting machines, one of which was as follows: ‘ ‘ Fifth. Learners to be paid at the rate of eight dollar's per week, for the first thirty-six days’ work, after which they shall be paid as journeymen.” The plaintiff construed this rule to amount to a contract for the full period of thirty-six days and the trial court so decided. Held, that this was error, and that the rule had no effect to fix the term of employment.</p>

<p>1. Husband and Wife—Gifts of Household Furniture.—A gift of household furniture by a husband to his wife, whether in writing or by parol, is valid, except as against his creditors at the time.</p> <p>2. Verdicts—Evidence Discussed and Verdict Approved.— In this case the court discusses the evidence and holds that the verdict of the jury was properly rendered.</p>

<p>Assumpsit, on a promissory note. .Appeal from the Circuit Court of Cass County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Verdicts.—Can Not Be Impeached by Statement of Juror.—The statement of a juror, sworn or unsworn, however clear, is not competent to impeach a verdict rendered by a jury of which he was a member.</p> <p>2. Pleading.—Allegation of Want of Jurisdiction.—In a suit for divorce the plaintiff filed an amendment to his bill alleging that the defendant had been previously married; that such prior marriage had never been legally dissolved, and that a pretended divorce was granted without jurisdiction of one of the parties and was therefore void. This was averred however not absolutely, but “as shown by a bill filed to set aside the said decree of divorce.” The amendment also stated that the latter bill was still pending. Held, that a demurrer to the amendment was properly sustained.</p>

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

<p>1. Verdict—On Conflicting Evidence.—A verdict upon conflicting evidence is in general conclusive.</p>

<p>Trial.of the Rights of Property.—Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>1. Appeals—In Bastardy Cases.—Appeal from judgments of the County Court in. bastardy proceedings can not be taken to the Circuit Court, but should go directly to the Appellate Court.</p>

<p>1. Roads and Bridges—Presumptions in Favor of Legality of Proceedings to Establish Road.—Where an order of the proper authorities establishing a road is shown, the presumption is that the preliminary proceedings were regular, and such as justified the order of the court establishing the road.</p> <p>2. Same—Use of Road for Fifteen Years Establishes Legality.—After a road has been continuously used as a highway and recognized and maintained by the road authorities for a period of fifteen years, it becomes a lawful public highway under Sec. 1 of Chap. 121,-R. S., regardless of any irregularities that may have occurred in the proceeding for its establishment.</p> <p>3. Same—Authority of Commissioners of Highways in Regard to Repairs.—Commissioners of highways have no right, in the exercise of a supposed discretion, to practically vacate a public highway by voluntary neglect to repair its defects until they become irreparable, nor to determine absolutely whether a defect is irreparable, and if not so in fact, are bound to repair in such manner as they may deem best, with whatever means they may have or can control, applicable thereto in view of other and proper demands upon them. Their judgment is not authoritative or conclusive and must give way to a greater weight of evidence to the contrary.</p>

<p>Assumpsit, on the common counts. Appeal from the Circuit Court of Adams County; the Hon. Oscar P. Bonney, Judge, presiding.</p>

<p>Trespass, animals damage feasant. Appeal from the County Court of Hancock County; the Hon. David E. Mack, Judge, presiding.</p>

Assumpsit, against a tenant for life, for drainage district assessments paid by the remainderman. Appeal from the Circuit Court of Logan County; the Hon. George W. Herdman, Judge, presiding.

<p>1. Bridges—When■ and How Townships May Secure Aid in Constructing.—The circumstances under which, and the method by which, townships may secure aid in the construction of bridges are specifically prescribed by statute (R. S., Ch. 121, Sec. 19), and there is no other way. The statute requires that the commissioners of highways present a petition setting forth certain prescribed facts, which are all alike essential to the right. When all the prescribed facts are made to appeal' by the petition the supervisors must act, but until this is done they are not bound or empowered, to apply county funds to such use.</p>

<p>1. Witnesses—Employes—Credibility of.—In the absence of all proof of bias or prejudice resulting from their employment, an instruction to the effect that if the jury believe, from the evidence, that any employe has testified under a fear of losing his employment, or a desire to avoid censure, or a fear of offending, or a desire to please his employer, they may take such circumstances into consideration in weighing the evidence, is erroneous.</p>

<p>Debt, on a replevin bond. Appeal from the Circuit Court of Tazewell County; the Hon. Nathaniel W. Green, Judge, presiding.</p>

<p>Transcript, from a justice of the peace. Appeal from the County Court of Champaign County; the Hon. Calvin C. Staley, Judge, presiding.</p>

<p>Petition in Probate,—Appeal from the Circuit Court of Cass County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Parent and Child—Presumptions as to Services Rendered.— If a child, after arriving at his majority, lives with his parents as before, the law will imply that the relation of parent and child exists, in the absence of circumstances to show to the contrary, and that what was done for each other by the parties created no obligation of indebtedness upon either party.</p> <p>2. Instructions—Accuracy Required In Close Cases.—The fact that the law is stated correctly in some of the instructions will not cure material defects in others, in a close case.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the: Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>Indictment, for extorting money. Error to the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>Bill for an Accounting.—Error to the Circuit Court of J ersey County; the Hon. George W. Herdman, Judge presiding.</p>

<p>Assumpsit, on a guaranty. Appeal from the Circuit Court of Coles County; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>1. Fraudulent Conveyances—Deeds From, Husband to Wife.—A deed from a husband to his wife, made without consideration, is fraudulent as against existing creditors of the husband.</p> <p>2. Husband and Wife—Ante-Nuptial Contracts.—An oral ante-nuptial contract is void, as between the husband and his creditors, by section 1, chapter 59, R. S., entitled ‘ ‘ Frauds and Perjuries,” but consummation of the marriage and performance of the conditions of the contract will render it valid and effectual as between the parties to it.</p> <p>.3. Same. —Liens for Money Advanced by the Wife.—Where a wife gave her husband money which she had earned before her marriage, and he used the same with other moneys of his own in the construction of buildings upon real estate owned by him, it was held, in a proceeding to subject the real estate to the payment of his debts, that alien superior-to the right of the creditors of the husband, and in favor of the wife for the money so advanced should be reserved against the property.</p>

<p>1. Sidewalks—Negligence in Repairing a Question of Fact.— Whether a sidewalk has been out of repair a sufficient length of time to warrant the imputation of negligence on the part of a city is a question of fact.</p> <p>2. Cities—Duty of Keeping Sidewalks in Repair.—The design of the law is that the sidewalks of a city shall be safe and free from danger, but cities are not charged with the absolute duty of making and keeping their walks safe. They are only required to use reasonable exertion to accomplish that end.</p>

Trespass on the Case, for damages caused by fire set by sparks from an engine. Appeal from Circuit Court of Christian County; the Hon. Jacob Fouke, Judge, presiding.

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>1. Landlord and Tenant—Permission to Tenant to Sell drop Waives Lien.—If a landlord authorizes a tenant to sell the crop raised on his land, and a purchaser is aware of this fact, he may make payment to the tenant, and if he does so will not be liable to the landlord.</p>

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

<p>1. Depositions—WTto is a Non-resident.—A non-resident witness, within the meaning of section 28, chapter 51,R. S., entitled, “ Evidence and Depositions,” is one who does not reside in or is not a resident of a particular place, either within or without the State.</p> <p>2. Practice—Opening and Closing.—It is within the discretion of the court to permit the defendant to open and close whenever during a trial he assumes the affirmative, and the mere fact that the general issue is not withdrawn until after the jury is chosen and some evidence taken makes no difference.</p> <p>3. Sales—For Future Delivery—When Void.—A sale of goods to be delivered in the future is valid, though there may be an option as to the time of delivering, and though the seller had no other means of getting them than of going into the market and buying them, but if, under the guise of a contract, valid on its face, the real purpose and intention of the parties be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but the loser is only to pay the difference between the contract and the market price, then the transaction is a wager and is void.</p> <p>4. Promissory Note—Founded Upon a Wager, Void—Innocent Purchaser.—A promissory note given upon such an illegal consideration is, under our statute, void in the hands of an innocent purchaser, and such illegality of a part of the consideration will taint the whole.</p> <p>5. Intention—Of Parties—How Established.—The intention of the parties to a contract may be established not only by their assertions but also by the attending circumstances.</p>

<p>1. Practice—Setting Aside Default and Granting New Trial. —Where-an attorney was notified that a case was set for trial on the day previous to the trial, and it does not appear that he made any preparation for trial, that he had not time for that purpose, that he made reasonable application to the court for delay, or that he was unable to attend the trial, was the sole attorney for the defendant, and that there was not time to secure another, a motion to set aside a default and grant a new trial is properly overruled.</p>

<p>Bill for an Injunction.—Appeal from, the Circuit Court of Coles County; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>1. Railroads—Duty to Fence Right of Way—Adoption of Fence Erected by Owner of Land.—It is the duty of a railroad company to build and maintain a fence along its right of way suitable and sufficient to prevent stock from going upon its track, and if it does not do so, but joins a fence built at other points to a fence previously erected by a land owner near to the right of way but on his own land, it adopts and appropriates his fence and must see that it is, and continues to be, sufficient for the purpose. Failing in this it is responsible precisely as if it had built such fence.</p> <p>2. Practice—Objections to Allowance of Attorney's Fees.—In a suit against a railroad for injuries caused by its failure to fence its right of way, objections to the allowance of attorney’s fees, on the ground that they are not claimed in the declaration, should be made when evidence of such fees is offered.</p>

<p>Assumpsit, for breach of a contract of sale. Appeal from the County Court of Cumberland County; the Hon. Gesham Monohon, Judge, presiding.</p>

<p>1. Common Carriers—Limitations of Liability by Contract.—A contract by a shipper, that he will at his own risk feed and water stock while in transit, is valid, and if it appears that a shipment was understood to have been made under such a contract, the fact that the contract was not signed until the- transportation was nearly complete will not render the carrier liable for failure to water stock.</p>

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

<p>Mechanic’s Lien.—Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>1. Principal and Agent—Principal, To What Extent Bound.—A principal will be bound to the extent of the authority a third person, acting with reasonable prudence, will be justified in believing, from the acts of the principal, that the agent possessed.</p> <p>2. Same—Bona Fide Buyer, How Far Protected.—A tona fide purchaser, who relies upon the apparent ownership of an agent, is to be protected as against the principal, who, by his own act, created the existence of the apparent condition of ownership.</p>

<p>1. Insurance—Statements in the Application as Warranties.— Where the application for a policy of insurance is expressly declared to be a part of the policy, and such statements are warranted to be true, they will be held material whether they are so or not, and if shown to be false, there can be no recovery on the policy.</p> <p>2. Same—Falsity of Statements in the Application, an Affirmative Defense.—The fact that the statements in the application upon which a policy of insurance is issued are false, must be set up by a special plea and proved by the defendant.</p> <p>8. Same—Proofs of Death— When Unnecessary. —Where the policy provides that the proof of death shall be made in a particular manner, after the company has given notice that the loss will not be paid, it can not be heard to object that the proof of death was not made as required by the policy.</p>

<p>1. Sales—Provisions to Take Possession in Case of Non-payment— Revocation,—A provision of a contract for the sale of a sewing machine, that in default of the stipulated payment the seller is authorized to resume possession of the machine, can not be revoked any more than any other provision of the contract. Under such a contract, the purchaser is bound to surrender the machine if he does not pay according to the contract, and failing to do so, the seller has the right of possession.</p> <p>8. Verdicts—Upon Immaterial Issues.—An immaterial issue presented by a replication is not aided by a verdict, and judgment may be rendered for the defendant non obstanteveredicto.</p>

<p>1. Forcible Detainer—Informalities in the Proof on Appeal.— In a forcible detainer suit both parties proceeded to trial as though it was a conceded fact that the defendant occupied the room described in the complaint, and the defendant claimed the right to continue to occupy the room. The evidence identified the premises in controversy as a room in a building in the city of L., owned by the plaintiff and occupied by the defendant, and it appeared that written notice to surrender it, by the description given in the complaint, was served on the defendant. Held, that an objection that more formal and precise description was not made on the trial could not be raised for the first time on appeal.</p>

<p>1. Ante-Nuptial Agreements—Existence of, etc.—The court discusses the evidence and finds that no ante-nuptial agreement existed between appellant and her deceased husband.</p>

<p>1. Husband and Wife—May Give Preference to Each Other in Paying Debts.—While more or less suspicion will naturally attach to transactions by which a debtor protects his wife in preference to his other creditors, yet if the claim is bona fide and if the wife has done nothing to estop her, she may insist upon and maintain her right to such a preference.</p>

<p>1. Master and Servant—False Representations by Servant.—A master may discharge a servant for false representations as to his capacity.</p> <p>3. Same—Evidence as to Truth of Representations by Servant.— Where it appears that a person seeking employment made representations as to the amount of work done for a former employer', and his reasons for leaving such employer, and that such representations had great weight in securing his engagement, the new employer should be allowed to develop the whole truth on both of these points in a suit for wrongful discharge.</p>

<p>Bill for Divorce.—Appeal from the Circuit Court of Pike County; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>Mandamus.—Appeal from Circuit Court of Vermilion County, Illinois; the Hon. -Ferdinand Bookwalter, Judge, presiding.</p>

<p>Citation in Probate.—Appeal from the Circuit Court of Pike County; the Hon. Jefferson Ore, Judge, presiding.</p>

<p>1. Appellate Court Practice— Second Presentation of the Same Questions in the Same Case.—This court need not restate, nor, according to well settled practice, re-examine or reconsider questions which were considered and decided on a former appeal of the same case.</p> <p>2. Statute of Limitations—As a Defense on Appeal—What the Record Should Show.—A person relying upon the statute of limitations as a defense must plead it, and on appeal the record must disclose that it was interposed in the court below, and this rule applies even though the pleadings in the trial court were oral.</p>

<p>1. Ordinances—Special Privileges.—If a city has the power to grant a special privilege, the ordinance granting the same must be substantially complied with, and any abuse of the privilege granted will justify the city in revoking the same.</p>

<p>1. Remedy—In Favor of the Maher of a Note Assigned Before Maturity.—When the maker of a promissory note has a defense to the same in the hands of the payee, but is prevented from making such defense by an assignment of the note before maturity, he may, if compelled to pay the same, introduce the same evidence in a suit against the payee to recover the amount paid on such note, that he might have introduced in a suit against him by the payee, had such note not been assigned.</p> <p>2. Written Instruments—ParoZ Evidence—When Admissible to Vary, etc.—Section 9, Chapter 98, R. S., entitled “ Negotiable Instruments,” not only gives the maker of a negotiable instrument the right to introduce parol evidence to vary or deny such instrument when sued on, but also operates to abrogate the general rule, that parol evidence is not admissible as against another instrument than the. one sued on, if such other instrument relates to the consideration of the one sued on.</p> <p>3. Insurance—Acceptance of Policy.—The effect of the acceptance of a policy of insurance is a question of law, but the question as to whether one was or was not accepted is one of fact.</p> <p>4. Same—Circumstances Tending to Show an Acceptance of a Policy. —The receipt and retention of a policy of insurance are circumstances tending to show an acceptance, and in the absence "of explanation, would be received as establishing it.</p>

<p>Error, to the Circuit Court of Montgomery County; the Hon. James A. .Creighton, Judge, presiding.</p>

<p>1. Fraud and Circumvention— Bona Fide Holder of Commercial j Paper.—In an action upon a promissory note, the execution of which is claimed to have been secured by fraud, it is material to the defense as against a bona fide holder, that the maker (defendant; had exercised due diligence and care in endeavoring to advise himself of the contents of the instrument before he signed it.</p>

<p>1. Insurance—Rules of Mutual Company Should Be Enforced.— It is the duty of courts and juries to recognize and enforce the conditions and limitations created by the members of mutual insurance companies, and they should not allow the funds of a company to be paid out in cases distinctly excluded from participation in the benefits of the order by the rules and regulations mutually agreed upon by the members.</p>

<p>Assumpsit, for freight charges. Appeal from the Circuit Court of' McLean County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>1. Appeals—By Special Administrators.--Before a special administrator, appointed to defend a claim against an estate, can be allowed costs and attorney’s fees incurred on an appeal from an order allowing the claim, it must appear that he acted in good faith and with reasonable prudence in appealing. The question, whether an order of the Probate Court authorizing the appeal is necessary, is raised but not decided.</p>

<p>1. Accounting—Where Identity of Property is Lost.—Where a person who is entitled to the use of personal property for life, necessarily commingles it with other property subsequently received from other sources, and its identity is thereby lost, upon an accounting the amount thereof should be ascertained as nearly as possible, but exactness is not required.</p> <p>2. Wills—Construction of. by Trial Court in This Case Sustained.— The court reviews the evidence and holds that the decree herein substantially carries out the intentions of the parties, as disclosed by their wills, and that it is responsive to the merits of the cause.</p>

<p>1. Equity Pleading—Demurrers After Answer.—A defendant can not, after he has answered an original bill, put in a general demurrer to the entire bill, as amended, because the answer to the original bill will overrule the demurrer. The defendant must, in such case, confine his demurrer to matters introduced by amendment.</p> <p>2. Streets—Use of, by Railroad When Fee Remains in Abutting Property Owner.—Where the fee of a street remains in the abutting property owner, the corporation may grant the right to a railway company to lay its tracks along or across such street, but if, in laying its track, the company causes a private injury to him who owns the fee in the adjoining premises, it must make good the damages sustained.</p> <p>3. Courts of Equity—May of Their Own Motion Dismiss Bills Showing Existence of Remedy at Law.—It does not follow, because a defendant has not, as a defense, insisted that the complainant has an adequate remedy at law, that a court of chancery will give the complainant the particular remedy which, in such forum, he seeks.</p>

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

<p>Contempt Proceedings,—Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley , Judge, presiding.</p>

Bill, for an injunction, etc,., and order refusing leave to file a bill of review. Appeals from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.

<p>Trespass oil the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>Bill to Foreclose Mortgage.—Appeal from the Circuit Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>1. Judgments by Confession— When Not Interfered With.—A motion to set aside a judgment by confession, entered in term time in open court, is an appeal tó the equitable powers of the court, and unless it is made to appear that there are equitable reasons for setting aside such judgment, it will be allowed to stand.</p> <p>2. Landlord and Tenant—Assignment of Lease Does Not Release Lessee nor Entitle him to Notice of Default by Assignee.—The assignment of a lease by a tenant with the written assent of the lessor, does not absolve the tenant from any of the covenants of the lease, nor does it give him a right to notice of default on the part of the assignee in the payment of rent.</p>

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

<p>. 1. Partnerships—Limited and General.—The court holds that the statute under which limited partnerships may be formed, has not been complied with in this case, and that where that is not done the partnership is general. t</p> <p>2. Novation—Essential Requisites.—A novation can not exist without a previous valid obligation, agreement of all the parties to a new obligation, the extinguishment of the old and the validity of the new obligation. Hayward v. Burke, 151 Ill. 121.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding., Plaintiff’s eighth instruction: “ 8. It is not necessary for the plaintiff, nor will the law permit him, to put witnesses upon the stand for the purpose of testifying as to the amount of damages which the jury should award the plaintiff if, under the instructions of the court, they find a verdict in his favor.

<p>1. Parties—Trustees in Foreclosure Proceedings.—An omission to make the trustee a party in a proceeding to foreclose a trust deed is fatal to the decree.</p>

<p>1. Mechanics’ Liens—Are Purely Statutory.—A mechanic’s lien is purely statutory and can be maintained and enforced only upon a compliance with the conditions imposed by the statute creating it.</p> <p>2. Same—Statement of Claim.—Where the claim of the plaintiff is not for the gross price of an entire job, but for items of work done, the statement of claim, under section 4 of the mechanics’ lien act of 1874, must show the date of the items.</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>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>Assumpsit, for the recovery of money paid under duress. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Qui tam Action.—Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>Debt, on a penal ordinance. Appeal from the Criminal Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>1. Recoupment—By Tenant When Sued for Bent.—A tenant can not leave a lot of chattels in premises that he abandons and then sell them to his landlord, through the process of recoupment, when unpaid rent is demanded of him.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Charles G.' Neely, Judge, presiding.</p>

<p>Assumpsit, for goods sold and delivered. Appeal from Circuit Court Cook County; the Hon. Thomas Gr. Windes, Judge, presiding.</p>

<p>1. Instructions—Must be Based Upon the Evidence.— It is error to give an instruction in a case when there is no evidence upon which such instruction can be based.</p>

<p>1. Easements—When They do Not Pass by Implication.—An easement which is not apparent, which has not been used, and of which a grantor has no information, does not pass by implication.</p> <p>3. Same—Partial Release of Mortgage Will Not Create, as to Land Not Released.—The release by a mortgagee of certain described premises will not be construed as a release of the mortgage upon other portions of the estate in which the mortgagor has, without the consent of the mortgagee, seen fit to create, as against himself, an easement as an appurtenance to the lands described in the release.</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>1. Pleading—Plea of General Issue, Not Verified, Does Not Put in Issue the Execution of a Written Instrument.—In a suit by a servant against his master for a wrongful discharge, upon a concract in writing set out in the declaration in haec verba, pleading the general issue, without verifying the plea, does not put in issue the allegation of the declaration that the contract was made by the master.</p> <p>' 2. Interest—On Damages for Breach of a Written Contract.—In a suit on a written contract of employment, brought by the servant for a wrongful discharge, he is entitled to interest on whatever damage he has sustained.</p> <p>3. Master and Servant- -Measure of Damages for Wrongful Discharge, When Suit is Brought Before Expiration of Term.—In a suit by a servant for wrongful discharge, if the term of service ends before the suit come to trial, damages may be recovered to the end of the term, though the suit was commenced before that end.</p> <p>4. New Trials—Motions for, Gan Not be Amended After They Hare Been Overruled,.—Permission by a trial court to put an additional point into a motion for a new trial, given three days after the motion is denied and judgment entered, has no effect upon the correctness of the decision when it was made, and is nugatory.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit. Cmrt of Cook County; the Hon. Edward F. Dunne, Judge, presiding</p>

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

<p>1. Pleading—Sufficiency of Averment that Gontract Sued on is Contract of Defendant.—A declaration which names the defendant in its commencement and then alleges that “ the defendant made its policy of insurance and delivered the same to the plaintiff in words and figures following, to wit,” and setting forth the policy sued on, sufficiently avers that such policy is. the contract of the defendant named in the opening clause.</p> <p>2. Same—Payment of Dues to, and Compliance with Laws of Insurance Order.—In a suit on an endowment certificate requiring payment of all assessments and compliance with all laws governing the order, as a condition to the certificate remaining in force, it is not necessary to allege such payment or compliance. If any assessments were made, or if there were any laws governing the order, it is for the defendant to show the facts.</p> <p>3. Same—Facts only Should be Stated and not Matters of Law.—In pleadings, facts only are to be stated, and not arguments, inferences, conclusions or matters of law, and an allegation in a plea that a board of control had power to enact rules, laws and regulations for the government of an order is bad, because it tenders an issue of law and not of fact.</p> <p>4. Contracts—Acquiescence in Attempt of Third Party to Alter.— While’the parties to a contract may by mutual consent change its terms, an attempt by one not a party to the contract to do so does not bind one of the parties, although he may have had notice of and acquiesced in such attempt.</p>

<p>1. Creditor’s Bill—What Assets May be Reached by.—A creditor’s bill will not lie to reach assets of the debtor which the latter cannot recover in his own name.</p> <p>2. Decrees—On Conflicting Evidence.—Where from a candid and full consideration of evidence, that was conflicting and about evenly balaneed, a court of appeal is not able to say that a chancellor, who heard the whole case and saw the witnesses, came to an erroneous conclusion, his decree must be affirmed.</p>

<p>]. Surplusage—Stating Duties in Actions for Negligence. —In actions for negligence, charging that certain things were a duty, is mere surplusage. The duty, if any, results from the existing facts which should be stated.</p> <p>2. Passengers— When Persons Become—Carrier Must Know who are. —A person who has signaled a passing car to stop, and who, it having done so, is in the act of getting on to the same, having proceeded so far as to put his foot upon the step of the car, is a passenger, for whose safety the carrier is bound to exercise the highest diligence, and it is immaterial whether the carrier knows that such person has seized hold of the car and placed his foot upon the step or not, having stopped its car for the reception of passengers it is bound to take notice of all who occupy that relation.</p> <p>3. Measure of Damages—Mental Pain in Actions for Negligence.— Mere humiliation arising from the contemplation of a maimed or disfigured body, is not, in an action based upon negligence, to be taken into consideration in estimating the pecuniary loss which the plaintiff has suffered.</p> <p>4. Same—When Errors in Instructions as to, Not Ground for Reversal.—In an action based on negligence where the plaintiff’s right to recover under the evidence is clear, and the judgment he has obtained is not, for the injury which the jury had a right to believe he has sustained. excessive, taking into consideration only the proper elements of damage, it will not be reversed on account of an instruction allowing the jury to give damages for future mental pain.</p>

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

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

<p>1. Fellow-Servants—The Relation Found to Exist.—The court finds that the injury for which this suit was brought was caused by the negligence of a fellow-servant of the plaintiff (appellee) and that the defendant (appellant) is not liable.</p>

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

<p>1. Attachments—Jurisdiction.—In an attachment suit, if the defendant be not summoned on the writ, property belonging to him levied on, or a person indebted to him garnisheed, a judgment rendered is without jurisdiction and void.</p> <p>2. Same—Presumptions as to Jurisdiction.—Even in collateral proceedings there is no presumption in favor of the jurisdiction in attachment cases where personal service is not shown.</p> <p>3. Garnishment—Answer Must Show Possession of Property in Garnishee to Sustain a Judgment.—Persons summoned as garnishees in an attachment suit answered that they owned an undivided half of two dredges, of which, so far as they were informed, the defendant owned the other half, and that the dredges were in the Chicago river. Held, that the answer did not show who was in possession of the dredges, and that a judgment containing an award of special execution for their sale was void.</p> <p>4. Reversals—A Void Judgment May he Reversed.—The fact that a judgment is void is not an obstacle to reversing it upon error.</p>

<p>1. New Trials—Grounds for, Not Stated, are Waived.—Where the reasons given for a new trial fail to show any objection to the admission of certain testimony, the admission of such testimony can not be questioned on appeal. A party will be held to have waived all causes for a new trial not set forth in his written grounds therefor.</p> <p>2. Statute of Frauds—Waiver of, After Filing Pleas.—Where pleas setting up the statute of frauds were filed, but were never called to the attention of the court, and no allusion was made to the statute as a defense while the evidence of the agreement sued on was being put in, nor any objection made to the reception of any testimony, such defense will be deemed waived and will not be considered on a motion for a new trial. Persons intending to rely upon the statute can not postpone that reliance until after verdict.</p>

<p>1. Abatement—Pl-as in, Must be Interposed at First Opportunity.— Pleas or defenses in abatement must be interposed at the first oppor-| tunity in any court, whether a court of record or not.</p> <p>2. Objections—When They Must be Made before Verdict.—Any objection which could at the trial be removed by amendment, if made for the first time after verdict, comes too late.</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>Trespass on the Case.—Ejecting passengers from a train. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, ' presiding.</p>

<p>1. Negotiable Instruments—Payment of Drafts—Forged Indorsements.—The acceptor of a bill of exchange must satisfy himself when it is presented for payment, that the holder traces his title through genuine indorsements; for if there is a forged indorsement it is a nullity and no right passes by it.</p> <p>2. Same—Payment of Drafts to Others Than the True Owner.—Payment to a holder of a draft under a forged indorsement is invalid as against the true owner. Such owner may require it to be paid again.</p> <p>3. Same—Diability of Indorser.—An indorser of commercial paper warrants the genuineness of all signatures to such paper and all prior indorsements thereon, and that his title thereto is genuine. He is liable if his title proves defective.</p>

<p>1. Cities and Villages—Power to License Trades, Professions, etc. ■—Taxes.—When authorized by the legislature, city councils may impose licenses upon trades, professions, pursuits and callings and. such impositions do not constitute a tax in the constitutional sense of the word.</p> <p>3. Same—Licensing Stationary Engineers.—The court holds the ordinance of the city of Chicago entitled “ An ordinance for the examination and licensing of engineers of steam machinery and steam boilers in the city of Chicago ” (passed July 6,1893), valid, reasonable in its possessions and uniform in its application.</p> <p>3. Errors—Of Which the Appellant Can Not Complain.—The impositions of a less fine than the law requires in a case where the only punishment is a fine, is not prejudicial to the person fined.</p>

<p>Transcript, from a justice of the peace. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding.</p>

<p>1. Evidence—Existence and Sufficiency of, Questions for the Court and Jury.—-The sufficiency of testimony to prove an allegation is a question for the jury; but whether there is any evidence tending to prove such allegation is a question of law for the court.</p>

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

<p>1. Medical Practice—Who are Physicians.—A person who treats, operates on, or prescribes for any physical ailment must be regarded as practicing medicine, within the meaning of chapter 91, R; S., entitled “ Medicine and Surgery.”</p> <p>2. Same— Persons Holding Themselves out as Doctors.—If by treating, operating on, or prescribing for physical ailments, a person holds himself out as a doctor to persons employing him, and they believe him to be a doctor, he will be chargeable as such.</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>Trespass on tlie Case.—Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>1. Demand—For Possession in Replevin.—A levy by an officer under an execution upon property in the possession of the defendant in execution is rightful. To make the possession of the officer wrongful a demand upon him is necessary.</p>

<p>Trover.—Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>Trespass vi et arniis.—Appeal from Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding.</p>

<p>1. Banks and Banking—Deposits with Instructions Not to Pay a Particular Chech.—A bank is not bound to pay a check .out of funds deposited by the drawer, after the check is drawn with specific directions not to pay them out on such check.</p>

<p>Transcript, from a justice of the peace. Appeal from the Criminal Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>