Volume 70 — Illinois Appellate Court Reports

<p>1. Lis Pendens—Former Suit Dismissed Without Paying Costs.— There is no rule of law requiring a form ?r suit to be considered as pending after it has been dismissed until the defendant’s costs have been paid, or compelling a plaintiff to pay the costs of a first action before he is suffered to proceed with a second upon the same ground.</p>

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

<p>1. Pleading—Legal Services Covered by the Common Counts.—</p> <p>Where the abstract states that the declaration had in it the common count “for the price and value of work, and material for the same provided,” this court will assume, in the absence of any more specific statement, that the declaration was sufficient as a pleading to authorize the recovery of money due for services as a lawyer.</p> <p>2. Contracts—Where the Minds of the Parties did not Meet as to Price of Sendees, their Value may be Proved.—Where the evidence shows such a misunderstanding between the parties to a contract, as to the price to be paid for services, that the jury may properly find that the minds of the parties never met upon the question of price, evidence of the value of the services is admissible.</p> <p>3. Practice—When Objections to Testimony Must be Specific.—When the ground of an objection is of such a character that the objection may be obviated, such ground must be stated specifically, and in time to afford opportunity to obviate it, otherwise the objection will not be considered on appeal.</p> <p>4. "Verdicts—When Not Part of the Record. —A verdict which jurors are alleged to have written and handed in is not part of the record unless embraced in the bill of exceptions.</p> <p>5. Trials—Restriction of Arguments.—The fact that counsel for appellant was only allowed seven minutes to argue this case before the jury, held not to be an unreasonable restriction.</p> <p>6. Evidence—Proof of Value of Services to Corroborate Statement as to Contract Price Thereof.—Where there is a conflict of testimony as to the amount agreed to be paid for certain services, the value of such services may be shown, and may be considered by the jury in determining the credibility of the testimony.</p>

<p>1. Courts—Power to Extend Time to File Bill of Exceptions.—The time for filing a bill of exceptions may be extended at a term subsequent to that at which the judgment or decree was entered, without notice to the opposite party, where the time for filing has not expired when the order of extension is made.</p> <p>3. Damages—Failure to Deliver Stock—Value of Stock Must be Proved.—A person agreeing to do certain work for a specified number of shares of the stock of a corporation is entitled to only such damage as he has suffered from a, failure to deliver the stock, and in a suit on the contract he must prove, the value of the stock.</p> <p>3. Parol Evidence—To Explain Incomplete Contract.—Where a written agreement provided that one of the parties was to render certain specified services, and “ other services,” but did not indicate what the “ other services ” were to be, parol evidence is admissible to show what other services were to be rendered.</p>

<p>Action, to assess damages for breaches of an appeal bond. Appeal from the Circuit Court of Cook County; the Eton. Francis Adams, Judge, presiding.</p>

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

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

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

<p>1. Recorder’s Fees—For Recording Plats.—Where the land comprised within a plat is divided into separate pieces by lines and figures thereon, each piece may properly be counted as a parcel or tract in figuring the fee to be paid for recording such plat.</p> <p>2. Mandamus—Showing Required.—The right to a writ of mandamus must be clear to warrant a court in granting this extraordinary remedy.</p>

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

<p>1. Bill of Exceptions—When Regarded as Incomplete.—Where many papers which are not in a bill of exceptions were offered in evidence. and seen by the court trying the case without a jury, and it is clear that the judge regarded them as part of the proofs, though there be no formal statement that they were received in evidence, the bill of exceptions will be treated as incomplete.</p> <p>2. Judgments—Presumed to be Right.—A judgment is presumed to be right until it is shown to be wrong, and where, from what is before it, a court of appeal can not say that a judgment appealed from is wrong, it must be affirmed.</p>

<p>1. Appearance—When Deemed to he General,—Where a party appears for purposes other than to show that he is not properly before the court, he is deemed to have entered a general appearance for all purposes.</p> <p>2. Same—Effect of Writing Consenting to Action.—Any writing filed in the papers in a cause nob going to tiie jurisdiction of the court, which asks or consents to action by the court in the cause, must be treated as a sufficient appearance for all purposes.</p>

<p>Assumpsit, for a wrongful discharge. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Practice—Right to Address the Jury Absolute.—The right of a party litigant to address the jury by his counsel is absolute. Lanau v. Hibbard, Spencer, Bartlett & Co., 63 Ill. App. 54, approved and followed.</p>

<p>1. Husband and Wife—Family Expenses.—Diamond ear-rings, a watch given to a daughter of the wife by a former marriage and not a member of the family of the husband, and a chain given to the lover of a servant, can not be considered as family expenses and chargeable against a husband without his consent.</p>

<p>1. Questions of Fact—Who Are Fellow-Servants—Negligence.—Who are fellow-servants and. whether or not a defendant was guilty of negligence are questions for the jury, and their determination of them should not be disturbed upon such evidence as is contained in the record in this case.</p>

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

<p>1. Mistakes op Law—Money Paid Under, Can Not he Recovered.— The fact that parties were mistaken as to the law, and that the apparent lien of an assessment was held to be invalid, and was never enforced, does not give a vendor the right to recover from his vendee money withheld from the contract price on account of such assessment in the absence of an agreement covering the subject.</p>

<p>1. Verdicts—Must be Sustained by the Evidence.—The court discusses the evidence, and holds that it does not sustain the verdict, and that the judgment must be reversed.</p> <p>2. Negligence—Showing Necessary, in Suit Based on.—With the abrogation of the doctrine of comparative negligence, the old law is reinstated, and a party seeking to recover damages for negligence must show that his own negligence did not concur with that of the other party in producing the injury.</p>

<p>1. Consideration—Non-Performance of Agreement as Failure of.— The non-performance of an agreement forming the consideration of a note is not a failure of consideration unless the agreement be rescinded.</p>

Assumpsit, for work and material used in constructing a heating apparatus. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.

<p>1. Guaranty—Consideration for, Must be Shown.—In a suit against a guarantor of a promissory note where it appears that at the time the plaintiff acquired the note the guarantor was in no manner liable upon it, the burden is upon the plaintiff to show a consideration for a subsequent guaranty.</p> <p>2. Verdicts—Contrary to the Evidence.—The court reviews the evidence in this case and holds that there is no evidence to ¡how a consideration for the guaranty sued oñ, and that the verdict and judgment are manifestly contrary to the evidence.</p>

<p>1. Courts—Power of, Over Their Own Process.—If it be shown that it is inequitable to allow the enforcement of an execution upon a particular levy, the court from which the execution issued may quash the levy. Courts will recall their process and quash the same when it is shown that it would be illegal or inequitable to permit its further use, and to allow it to be enforced.</p> <p>2. Equity—Neglect to Pursue Remedy at Law.—If a party neglects to pursue his remedy at law, he can not come into equity for relief.</p>

<p>Assumpsit, for a wrongful discharge. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Consideration— When Proof of Is Not Required.—A guaranty under seal expressed on its face that it was made for value received. Held, that no extraneous proof of a consideration was needed.</p> <p>2. Pleading—Allegation'.? Not Denied Considered as Admitted.—In a suit on a guaranty where the breach alleged is not denied by the pleas it is considered as admitted, and proof of such breach is not required.</p>

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

<p>Debt, on a replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>Petition, in assignment proceedings. 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 Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.</p>

<p>1. Abatement—Death of all the Parties to a Suit.—Under Secs. 10, 11, 12 and 13 of Chapter 1, R. S., a court may order the substitution of the personal representatives of the parties to a suit where all the parties, both plaintiff and defendant, die during the pendency of the suit.</p> <p>2. Torts—Liability of Landlord for Acts of an Employe.—In actions for torts there are no accessories, those who command and those who do are equally guilty, and a landlord under an obligation not to disturb his tenant, can not, by his agents, destroy the value of a tenancy, and if he does, he is responsible for the injury inflicted.</p>

<p>Assumpsit, on a benefit certificate. Appeal from the Superior Court of Cook County; the Hon. James Goqgin, Judge, presiding.</p>

<p>1. Carriers—The Rule as to Presumption of Liability for Injury to Passengers Stated.—If an injury to a passenger is caused by apparatus wholly under the control of a carrier and furnished and applied by it, a presumption of negligence on its part is raised, but it is only when the injury occurs from the abuse of agencies within the carrier’s power that it can be inferred, from the mere fact of the injury, to have acted negligently.</p> <p>2. Instructions—Accuracy Required in Close Cases.—In closely contested cases, especially where, on the record, the verdict seems to be against the preponderance of the evidence, the instructions on behalf of the successful party must be accurate.</p>

<p>1. Verdicts—On Conflicting Evidence,—The evidence in this case is conflicting, and the jury having resolved the doubt in favor of appellee their verdict must stand.</p>

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

<p>1. Leases—Beginning of Term, Where No Time is Fixed—Oral Contracts.—An oral agreement for a lease fixed no time for its commencement, but the lessee moved in and paid five months rent, which the lessor accepted. Held, that oral contracts are proved not only by what the parties say but by what they do, and that in this case they had by their acts fixed the time of the beginning of the term.</p>

<p>1. Pleading—What is Surplusage in.—In an action of trespass on the case an allegation that the defendant had “promised and undertaken ” is mere surplusage. Such an action does not lie for a breach of a contract; though the fact that the wrong done, or duty neglected, does constitute a breach of contract, is no obstacle to the action.</p> <p>2. Negligence—Failure to Fence Roof.—A person who, knowing its condition, accepted work upon the roof of a building, can not recover against his employer for injuries caused by a fall from such roof, on the ground that the roof was not fenced.</p> <p>'3. Pleading—When Ignorance of Existing Conditions Should he Pleaded.—A servant sued his master for injuries caused by a fall from the roof of a building alleging negligence in failing to have the roof fenced. Held, that if the servant did not know of such neglect and desired to rely upon such ignorance on his part his want of knowledge should have been averred.</p>

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

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

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

<p>1. False Imprisonment—Arrests by Private Persons.—A private person has no right to arrest another on mere suspicion that he has been guilty of a crime, and an arrest by a private party can not be justified unless a crime has been committed and the person arrested is shown to be the guilty party.</p> <p>2. Verdicts—Upon Conflicting Evidence.—Whether facts alleged as a cause of action or defense are proved, is a question for the jury, and where the evidence is conflicting their verdict is final.</p>

<p>1. Pleading—Evidence of Negligence Need Not Be Stated.—It is not necessary to particularize the special acts of carelessness that cause an accident, or, in other words, to plead the evidence.</p> <p>2. Negligence—Reliance Upon a Custom of a Railroad Company is Not.—A person who is familiar with the custom of a railroad company to close gates maintained at a railrbad crossing when a train is about to pass, and with the location and surroundings, has a right to rely upon the open gates as a notice to him that no train is close at hand, and as an invitation to him to make the crossing in safety, so far as an approaching train is concerned,</p> <p>3. Verdicts—When Conclusive.—Whether a plaintiff suing for personal injuries caused by the negligence of the defendant exercised due care for his own safety is a question for the jury; and where it is a question upon which ordinarily intelligent men may reasonably differ, and there is evidence enough to leave the question one of considerable uncertainty, a court of appeal has no right to override the finding of the jury.</p>

<p>Assumpsit, on an award in condemnation proceedings. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>1. Appellate Court Practice—Insufficient Bill of Exceptions.—</p> <p>Where the bill of exceptions does not show that any exception was taken'to either the finding of the court, the overruling of the motion for a new trial, or the judgment, there is nothing presented upon which the Appellate Court can act.</p> <p>2. Practice—Exceptions Must Be Taken.—Although a cause is tried by the court without a jury, unless an exception is taken to the finding, its correctness can not be questioned by an Appellate Court.</p> <p>3. Same—Exceptions tofhe Overruling of a Motion for a New Trial.—</p> <p>The making and overruling a motion for a new trial does not take the place of exceptions unless the overruling of such motion is excepted to.</p>

<p>1. Benefit Societies—Change of Beneficiary.—During his life a member of a mutual benefit society may change his beneficiary in any way not prohibited by general law, or by the charter or by laws of the society, or by the terms of the certificate.</p> <p>2. Same—When Vested Rights Accrue.—In mutual benefit societies the contract of insurance is between the society and the member, and the beneficiary acquires no vested right in the benefit fund which is to accrue upon the death of the member, until such death takes place.</p> <p>3. Same—Mode of Changing the Beneficiary.—Where the mode of changing the beneficiary named in the certificate of a benefit society is specified in the contract or certificate such mode must be substantially pursued; but the rule has its qualifications.</p> <p>4. Same—Change of Beneficiary—New Contract.—When the parties, the society and the member, agree that a transaction between them is to be treated as a surrender of the existing certificate, and a new one with a new beneficiary is issued, a new contract is made and the old one abandoned and suspended, although the old certificate may be in the possession of the original beneficiary and out of the power of the member to surrender.</p>

<p>1. Pleading—Proper Designation of Parties.—Upon an instrument for the payment of money signed bypersons as “ directors of,” etc., it is proper to allege that the signers, by the name and style of the “ directors of,” etc., promised to pay, etc., and such allegation can not be denied under pleas not sworn to.</p> <p>3. Appellate Court Practice—Abstract Must Show Upon What Errors are Based.—Alleged errors not based upon anything appearing in the abstract of the record will not be considered by the court. Shively v. Hettinger, 67 Ill. App. 378.</p>

<p>1. Statutes—Grammatical Accuracy in Construing.—In construing statutes, grammatical accuracy is not so much to be sought for as the intent and purpose of the enactment.</p> <p>3. Chattel Mortgages—For Purchase Money.— Section 34, Chapter 95, R. S., entitled “Mortgages,” providing that no chattel mortgage executed by a married man or woman on household goods shall be valid unless joined in by the husband or wife, has no application to a mortgage given to secure the purchase money of the goods upon which it is given. Paterson v. Higgins, 58 Ill. App. 368, followed.</p>

<p>1. Insurance—False Statements in the Application.—An applicant for insurance, as to his employment stated that he was “managing a restaurant, etc.on the trial it appeared that he was not the manager of the restaurant but a barkeeper in it. Held, that the keeping of a restaurant is so commonly connected with the selling of liquors and the keeping of a bar that the statement “ managing a restaurant, etc.” would convey to the ordinary mind that the applicant among other things sold liquors or tended bar.</p> <p>2. Words and Phrases—Ft costera.—The phrase et costera, for which etc. is an abbreviation, imports other purposes of a like character to those which have been named.</p>

<p>Assumpsit., on a policy of insurance. 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 Circuit Court of Cook County; the Hon. Charles G-. Neely, Judge, presiding.</p>

<p>1. Guaranty—Recovery Sustained.—A recovery for work done and materials furnished, on the following order—</p> <p>“ Chicago, July 20, 1894.</p> <p>A. M. Farnsworth, Esq.:</p> <p>Dear Sir—When you get house and barn completed for Mr. Buban send bill for same to us. Star Brewery,</p> <p>P. H. Rice, Pres’t”</p> <p>— is sustained.</p>

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

<p>Assumpsit, on a contract for dredging. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

<p>1. Judgments—Relief from, in Equity.—Equity will grant relief against a judgment which is against conscience, or the justice of which can be impeached by facts, or on grounds of which the party could not avail himself at law, or of which he was prevented from availing himself by fraud, accident, mistake or the act of the opposite party, without any negligence or fraud on his own part, and will also sometimes relieve after verdict, and when the defendant at law might have defended himself.</p>

<p>Bill, for specific performance. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding.</p>

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

<p>1. Evidence—Existence of, and Proceedings Under Mortgages.— The existence of a new mortgage, given to satisfy a prior mortgage, can not be shown by parol, and until the existence of such new mortgage is proved, evidence of what has been done under it. or of any supposed effect of it in satisfying the prior mortgage, is inadmissible.</p> <p>2. Same—Records of Mortgages—When Competent:—To render the record of a mortgage competent evidence a compliance with the statute (Section 5, Chapter 95, R. S., and section 36, chapter 30, R. S.) is necessary.</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. Statutes—Jurisdiction of the Appellate Court in Cases Involving the Validity of.—The Appellate Court has no jurisdiction of cases involving the validity' of a statute.</p>

<p>1, Verdicts'—Sufficiency of—In Replevin.—Upon issues in replevin, formed by the pleas of non, cepit, non detinet, and property in a third person, a verdict finding the issues for the defendant is sufficient.</p>

<p>1. Attachments—Are Purely Statutory Proceedings.—Proceedings by attachment are in derogation of common law and can only exist by virtue of some statutory provisions.</p> <p>2. Same—Alias Writs Not Provided For.—The statute of this State makes no provision for an alias writ in case of an original attachment, and the same is true of an attachment in aid.</p> <p>3. Same—Alias Writs of Attachment Void.—Where an attachment in aid of a suit at law was returned unexecuted by order of the plaintiff’s attorney, who afterward filed another bond and affidavit substantially the same as the first, and upon which another attachment in aid was issued, it was held, that the second writ, although not containing the words “ as we have before commanded you,” was an alias writ and void as not being authorized by the statutes of this State.</p> <p>4. Alias Writs—Defined.—An alias writ is one which is issued when a former writ has not produced its effect, and is so called from the words “ as we have formerly commanded,” being inserted after the usual commencement, “We command you,” although such words are not necessary and their omission does not change the character of the writ.</p>

<p>Assumpsit, on a guaranty. Appeal from the Superior Court of Cook County; the Hon." Philip Stein, Judge, presiding.</p>

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

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

<p>1. Deeds—Effect of Return of, to Grantor's Custody Without Recording.—Tlie return after its delivery of an unrecorded deed does not divest the grantee of the title to the land described therein so as to prevent him from making a conveyance thereof and the title to such land is effectually passed by deeds from him.</p> <p>2. Promissory Notes—Adjustment of Amount Due on, in Equity.—</p> <p>If, by the conduct of the holders of notes secured by trust deed, matters have become complicated, so that the amount due upon the notes is uncertain, they have the right to call upon a court of equity to adjust the equities.</p> <p>3. Notice—Talcing Security for Release is Notice of the Effect of.—</p> <p>Taking a deposit as security against loss by a release is notice of the effect the release may have upon parties affected by it.</p> <p>4. Decrees—In Accordance With the Facts Approved.-—The court reviews the evidence and finds that the decree follows the proofs and is right in all its parts.</p>

<p>1. Verdicts—Upon Conflicting Evidence.—The evidence in this case was to some extent conflicting, yet was such that the jury had a right to find, as it did, that the accident was brought about by the negligence of appellant, and their verdict must stand.</p> <p>3. Negligence—Not Excused by Co-operating Negligence of Third Party.—The fact that the owners of a railroad track upon which a collision occurred were also negligent, does not excuse the negligence oí another company using such track under an agreement with the owners.</p> <p>3. Amendments—Effect of Failure to Make Actual Correction of Paper.—An action for personal injuries was brought and a declaration filed against two defendants. Afterward the suit was dismissed as to one of the defendants, and an order made that “ all papers and proceedings be and are hereby amended by discontinuing ” as to such defendant. Held, that the fact that the amendments were not actually made upon the declaration itself did not constitute error.</p>

<p>Transcript, from a justice of the peace. Appeal from the County Court of Cook County; the Hon. Wales W. Wood, Judge, presiding.</p>

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

<p>Trespass, quare clausum fregit. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding.</p>

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

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

<p>1. Trover—Character of the Action—Showing Necessary to Maintain.—Trover is a possessory action, and to recover the plaintiff must show that he has a special or general property in the thing converted and the right to its possession, and he must recover, if at all, on the strength of his own title, without regard to the weakness of that of his adversary.</p> <p>2. Same—Proof Necessary to Support.—To support an action of trover by one having either a general or special property he must prove a conversion'thereof at a time when the right of possession existed in him. It is not enough that he has a mere right of action or a right to take possession at a future day.</p>

<p>Complaint, before a justice of the peace. Appeal from the Criminal Court of Cook County; the Hon. Theodore Brent aNo, Judge, presiding.</p>

<p>1. Promissory Notes—Indorsed in Blank—Possession Evidence of Title.—Promissory notes indorsed in blank pass by delivery, and possession of such notes is prima facie evidence of title thereto.</p> <p>2. Same .—First Assignment to Bona Fide Holder Without Notice of Defects Fixes Character of.—The character of a promissory note, as negotiable paper, is established when it is acquired by a bona fide holder before maturity, and notice of original defects does not affect subsequent holders either before or after maturity.</p>

<p>1. Pleading—After Issues are Made Tip.—Where the issues have been made up, and the time at which a defendant was required to plead has passed, such defendant should obtain leave of court before filing an additional plea.</p> <p>2. Verdicts—Will Not Be Disturbed when Warranted by the Evidence.—The court holds that there was evidence which warranted the jury in finding as it did in this case, and that there is no sufficient reason for reversing its finding upon the questions of fact.</p> <p>3. Same—Power of Court to Order Correction of.—A verdict for the face of a note and interest is the same in effect as a verdict for the amount due on such note, and it is not error to direct the jury to withdraw and make the verdict formally correct, even after they have been allowed to separate.</p>

<p>1. Forcible Entry and Detainer—What the Complaint Need Not State.—Sec. 5, Chap. 57, R. S., does not require the statement in a forcible entry and detainer complaint of the circumstances under which the defendant entered, but simply that he unlawfully withholds; and on the trial the plaintiff may prove his right to recover under any clause of Sec. 2 of said chapter.</p> <p>2. Same—Doubt as to Ground on Which Right of Possession is Based Immaterial.—If the evidence in a forcible entry and detainer case proves that under one or another of the clauses of Sec. 2, Chap. 57, R. S., the plaintiff is entitled to recover, but leaves it uncertain under which, he is not to be defeated because of a doubt as to whether the defendant entered as a tenant or as a trespasser.</p> <p>3. Instructions—Should Harmonize.—It can not be known what instruction a jury will follow, and hence the instructions given on behalf of the respective parties should be made to harmonize by the court before they are given to the jury.</p>

<p>1. Justices of the Peace— When Judgments by, are Final.—A transcript of a justice recited a verdict and judgment as follows:' “ We, the jury, find the issues for the defendant, and upon the verdict the court renders judgment in favor of the defendant against the plaintiff for costs of suit.” Held, that the justice had no discretion to do anything else after the verdict than render final judgment for the defendant, and that the judgment for costs should be considered a final judgment, from which an appeal would lie.</p> <p>2. Judgments—Form of, When Final.—In form a final judgment for a defendant should be that the plaintiff take nothing by his suit, and that the defendant go hence without day.</p>

<p>Covenant, for a failure to maintain a private alley. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding.</p>

<p>1. Evidence—In Rebuttal Must Deny or Explain Evidence in Chief.—The testimony of a physician, called on behalf of the defendant, who states that at the solicitation of defendant he made an examination to ascertain the injuries sustained by a plaintiff suing for personal injuries, is not denied or explained by and does not lay a foundation for the introduction by the plaintiff of evidence of a conversation between the plaintiff, his attorney and an attorney for the defendant, in which an arrangement was made that the plaintiff would submit to the examination.</p> <p>2. Same—Testimony in Rebuttal.—After the plaintiff has rested his case, and evidence for the defendant has been received, the plaintiff can nor regularly put in evidence, except to deny or explain evidence produced by the defendant.</p> <p>3. Attorneys—Admissions of, Do Not Bind Client.—What an attorney says is not evidence against his client, unless it be in the nature of a stipulation as to the conduct of the cause, and then it is not his narrative of events, or his opinion as to anybody’s rights or disabilities, that binds his client, but it is his agreement as to the conduct of the cause.</p>

Trespass on the Case, for a wrongful taking of property under a writ of replevin. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.

<p>Transcript, from a justice of the peace. Appeal from the County Court of Cook County; the Hon. Wales W. Wood, Judge, presiding.</p>

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

<p>1. Contempt of Court—Classes of—Civil Contempts Defined.—The main division of acts of contempt is into those which are criminal and those which are civil. A civil contempt is a failure or refusal of a party to do something which the court has ordered to be done by him for the benefit or advantage of another party to the cause. The order in such case is not punitive but coercive.</p> <p>2. Same—Length of Commitments for Civil Contempts.—An imprisonment for a contempt of an order in a civil proceeding where the process is for the benefit of the adverse party, should terminate upon the compliance by the contemner with the requirements of the order. A court has no power to order a commitment for a definite time in such a case.</p>

<p>1. Fraudulent Conveyances—May be Set Aside in Equity.— It has long been settled, in this State, that it is the proper province of a court of equity to remove fraudulent conveyances that stand in the way of the collection at law of money judgments.</p> <p>2. Same—Exhaustion of Legal Remedy Not Necessary to Attach Upon in Equity,—When the scope and effect of a bill is simply to set aside and remove out of the way of the complainant’s execution upon a judgment at law, certain conveyances executed by the judgment debtor, without any valuable consideration, after he became debtor to the complainant, it is not necessary to allege and prove the exhaustion of his legal remedy, but the creditor may file his bill as soon as he recovers judgment.</p> <p>3. Same—Attacks Upon, in Equity.-—The fact that land fraudulently conveyed could have been levied on and sold without first attacking the fraudulent conveyance does not bar the remedy in equity to have the conveyance set aside.</p> <p>4. Same—Sale of Land after Removal of Eraudtilent Conveyance Proper under Prayer for General Relief.—Where a fraudulent conveyance has been set aside, a decree directing the sale of the property is proper under the prayer for general relief.</p> <p>5. Decrees—When Finding of Facts Recited in, is Conclusive.—In the absence of a bill of exceptions, a court of appeal is concluded by the finding of facts recited by a decree.</p>

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

<p>1. Negotiable Instruments—Time Allowed Payee to Present Check, —Where a payee, to whom a check is delivered by the drawer, receives it in the place where the bank on which it is drawn is located, he may preserve recourse against the drawer, by presenting it for payment at any time before the close of banking hours on the next day, and if in the meantime the bank fails, the loss will be the drawer’s, and in this respect there is no difference between a certified and an uncertified check. The fact that the holder of the check has good ground for believing that the bank upon which it is drawn is in a precarious condition and likely to fail, does not create an exception to the rule.</p>

<p>1. Sheriffs—Right to Require an Indemnity Bond. —A sheriff entitled to an indemnity bond has a right to require one that needs no explanations, and on its face is subject to no objections.</p>

<p>Transcript, from a justice of the peace in forcible detainer proceedings. Appeal from the Circuit Court of Cook County; the Hon. Thomas Gr. Windes, Judge, presiding.</p>

<p>1. Injunctions—Against Construction of Street Railroad.—It is well settled law in this State that a court of chancery will not control a municipal corporation as to the use of streets by railways.</p> <p>2. Contracts—Against Public Policy—Agreement of Street Railway Company not to Cross Tracks of Another Company.—An agreement by a street railway company not to cross the track of another similar company at grade is an attempt by the company to bind itself against what the public interest may require and is void, as against public policy.</p>

<p>Assumpsit, on a contract of sale. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>1. Parties—Persons Described as Unknown Owners,—Where a person was made a party to a bill as the unknown owner of a note, but filed an answer and cross-bill, he is bound by the decree, although the bill was not amended so as to make him a party by name.</p> <p>2. Notice—Proof of Publication of.—The publication of a notice of a sale of real estate under a decree of foreclosure may be proved by the certificate of the publisher of the paper printing such notice, with a copy of such notice annexed, stating the number of times the same has been published, and giving the dates of the first and last papers containing such notice; such certificate need not show the date of other publications.</p>

<p>1. Bill of Exceptions—References to Matters Following Judge's Certificate.—The words “ For instructions and motion for a new trial see next page,” in a bill of exceptions, are sufficient to make the instructions and motion referred to a part of such bill of exceptions, although they follow the certificate of the trial judge.</p> <p>2. Same—Presumptions as to Different Handwritings in.—There can arise no presumption adverse to the authenticity of a bill of exceptions from the mere fact it is in various handwritings.</p> <p>3. Contracts—Implied Warranties.—A made a contract with B by which he was to purchase 2,000 barrels of beer from B, deliveries to be made from time to time as requested: at the same time he received from B $300, to be retained if the contract was complied with by him, otherwise to be returned. After a time A refused to receive any more beer because of its claimed poor quality and unfitness for use in his business. Held, that the contract contemplated the delivery of beer of a merchantable quality in A’s business, and that a refusal by A to receive beer not of that quality, did not constitute a breach of the contract authorizing a recovery of the $300.</p>

<p>1. Instructions—Should he Based on the Evidence.—Where there is no evidence that a plaintiff suing for personal injuries will suffer any loss of time or of ability to work in the future because of the injuries received, it is improper to instruct the jury that they may allow damages for future loss of time or of ability to work, if any, resulting from such injuries which they may believe the plaintiff will sustain.</p>

<p>1. Building Contracts—Certificate of Architect Final Except in Case of Fraud or Mistake.—Where work on a building is done under the supervision of an architect chosen by the parties, the owner of the building can not be allowed to urge defects in the work. The decision of the architect must be final and binding, unless it be shown that his certificate is the offspring of fraud or mistake.</p> <p>3. Same—Fraud or Mistake of Architect in Issuing Certificate—How Shown.—Fraud or mistake on the part of an architect in issuing a certificate to a building contractor can not be shown by submitting to a jury evidence as to the quality of the work, but only by evidence touching the architect himself, to show that he did not exercise his real judgment.</p> <p>3. Same—Fraud or Mistake of Architect in Issuing Certificate—Injunctions Against Architects.—The defendant in a suit on an architect’s, certificate, in order to impeach such certificate, offered in evidence' the> record of a chancery suit began by himself against the architect to restrain the latter from further acting as architect, but it did not appear whether such suit was begun before or after the certificate was issued, or whether the holder of the certificate had notice. Held, that the record was not admissible.</p> <p>4. Appellate Court Practice—New Points Can Not be Made on Petition for Rehearing.—A point not made in the original brief can not be raised on rehearing even on petition of an appellee.</p> <p>5. Evidence—To Impeach a Witness Should be Offered Specifically.— It is not error for a court to refuse to admit evidence which constitutes no defense to an action, but which may be proper for the purpose of impeaching a witness when such proof is offered as a defense alone. To make it admissible it should be offered for the purpose of impeachment and not as a defense.</p>

<p>1. Telegraph Companies—Place of Performance of Contract With.— Where a telegraph message, sent from a place outside of the State is to be delivered in this State, the contract between the sender and the telegraph company is to be performed here, and will be construed in accordance with the laws of this State.</p> <p>2. Same—Contracts on Back of Blank.—The conditions on the back of a telegraph blank, when not assented tó, form no part of the contract between the sender and the telegraph company.</p> <p>3. Same—Contract Exempting Company from Liability Void.—A condition printed on a telegraph blank, by which the sender of a message exonerates the company from liability, beyond the amount paid, for an incorrect transmission of the message, is against public policy and void.</p> <p>4. Same—Effect of Stipulation Requiring Repetition of Message.—A stipulation in a telegraph blank exempting the company from liability for damages unless the telegram is repeated and an additional charge paid, does not protect the company from liability for damages which such repetition could have no tendency to prevent.</p> <p>5. Negligence—Duty of Person Injured by.—The law imposes upon a person injured by the negligence of another the duty of making reasonable efforts to render that injury as small as possible; and it does not permit him to recover damages for any increase of loss consequent upon a failure to perform that duty. This rule does not prescribe particular acts, however, but only a line of conduct. The duty is to make reasonable efforts to render the injury as small as possible; what acts such efforts should consist of, depends upon the circumstances of the particular case.</p> <p>6. Burden of Proof—That a Different Dine of Conduct Would Have Reduced Damages.—A defendant alleging that a different line of conduct upon the part of a plaintiff suing for damages would have reduced the damages, has the burden of proving that proposition.</p>

Trespass on the Case, for injuries to real estate by the construction of an embankment, and the lowering of a street. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding.

<p>1. Real Estate—When Party Agreeing to Convey Need Not Have</p> <p>Title.—A person who has made a contract to convey land need not have title until it becomes his duty to convey, and all averments of defects in or want of title to the land before that duty arises, in pleadings in a suit concerning such contract are useless and of no effect.</p> <p>2. Remedies—On Agreements to Convey Beal Estate. —A contracted for the sale of certain land to B and received from B as a payment on the purchase under an agreement between B and 0, a receipt for the commissions to be paid to C for effecting the sale. B sued to recover the amount of the receipt, claiming a cancellation of the agreement by A. Held, that as no money had been paid none could be recovered, and that the remedy was by suit for a breach of the agreement in which B should allege and prove his own ability and readiness to perform.</p>

<p>1. Evidence—Declarations of Payee of a Note as Against an Indorsee.—A claimed to have been in partnership with B in the saloon business, and after B’s death filed a bill against his wife, seeking to establish such claim and to obtain a share of the proceeds of a sale of the saloon made by B during his last illness. The evidence showed that notes for which the saloon was sold were given to the wife, and that she claimed as an indorsee and not as an heir or purchaser. Held, that B’s declarations as to the ownership of the saloon were admissible against her.</p> <p>2. Same—Questions Calling for Conclusions Improper.—The questions, “why vas this $1,000 to be paid to complainant;” and “ why was complainant’s name over the door of the saloon f ” are improper, as they call for the conclusions of a witness.</p> <p>3. Variances—In Equity. —While the rule is that the allegations and proofs in proceedings in equity must correspond, relief will not be denied because of mere variance, unless the case stated and the case found are so materially variant as to prevent a decree in favor of the complainant.</p>

<p>Bill, to foreclose a vendor’s lien. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Debt—to Recovera Penalty Not Quasi Criminal in its Nature. —An action of debt to recover the penalty provided for by Sec. 10, Chap. 95, R. S., is not within the meaning of the Constitution of this State a criminal or quasi criminal case.</p> <p>2. Mortgages—Failure to Release—See. 10, Chap. 95, R. S., Construed.—A mortgagee is not required by Sec. 10, Chap 95, R. S., to determine disputed questions and is not liable under that section for a failure or refusal to release a mortgage where the right of the person demanding such release is a disputed question.</p>

<p>1. Practice—Objections Should be Specific.—To constitute error in t'ieir overruling objections must be specific and direct the court’s attention to the very point, to the end that an opportunity may be had to obviate them and avoid error.</p> <p>3. Same—Objections Should be Specific—The Rule Applied.—The question, “ What was the amount of the account which you presented to the defendant for payment,” was objected to on the ground that it was not the best evidence, Held, that the objection should have stated that such evidence was not the best evidence because it called for the contents of a writing shown to have once existed and which remained unaccounted for.</p> <p>3. Same—Application of Technical Rules.—A technical answer to a technical claim is good and where a party stands upon and demands the application of strict rules of law in his own favor equal strictness will be observed in enforcing rules which operate against him.</p> <p>4. Appellate Court Practice—What Abstracts Should Show.—</p> <p>Where an abstract states “ Motion for new trial * * * motion denied, exception by defendant,” without showing by whom the motion was made, what motion was denied or to what ruling of the court exception was taken, the court will not undertake to supply the omission.</p>

<p>Bill, to enjoin the collection of a judgment. Appeal from the Superior Court of Cook Comity; the. Hon. John Barton Payne, Judge, presiding.</p>

<p>1. Verdicts—Z7pora Conflicting Evidence.—Under the law it is the province of a jury to determine questions of fact upon conflicting evidence. and there being positive evidence tending to support the allegations of the declaration in this case, the verdict must stand.</p> <p>2. Instructions—As to Issues not Raised by the Pleadings nor Following from the Evidence.—The trial court refused to charge the jury, “ that if you believe from the evidence that the defendant’s ice wagon did not run over the deceased, you will find the defendant not guilty * * -x- Held, that the instruction was properly refused, as it presented to the jury an issue not raised by the pleadings, and not necessarily following from the evidence.</p> <p>3. Evidence—Admission of, in Rétmttal Rests in the Discretion of the Trial Judge.—The admission of evidence in rebuttal is always a matter resting in the discretion of the trial judge, and is not subject to review except in cases of gross abuse.</p>

<p>1. Verdicts—Upon Conflicting Evidence and Not Warranted by the Evidence.—The court holds that the verdict of the jury on conflicting evidence on the question of liability ought not to be disturbed, but that upon the attachment issue there was no evidence warranting the finding of the jury and that it must be set aside.</p> <p>2. Briefs—What They Should Contain. — Counsel for appellants should in all cases precede their argument by a statement of facts, with abundant references, showing at what place in the abstract such facts appear.</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—Pleas Setting up Matter Admissible Under the General Issue.—It is proper to sustain a demurrer to a special plea where the matters specially pleaded were admissible in evidence, if offered under the general issue.</p> <p>2. Judgments—Presumptions in Favor of.—All presumptions necessary to support a judgment at law will be indulged in until overcome, and where there is no bill of exceptions a court of appeal will presume that all evidence in possession of a party to sustain his action or defense was admitted.</p> <p>3. Ordinances—An Ordinance of the Gity of Chicago Construed,.— An ordinance of the city of Chicago provided that “ any person engaged in the business of selling coal in the city of Chicago, to be delivered in said city, shall deliver to the purchaser at the time of the delivery of the coal purchased, a certificate, signed by a city weigher, showing the weight of the coal so delivered, and the weight of the wagon or cart.” Held, that the ordinance was intended to apply to sales of coal by weight to be delivered by wagon or cart, and that an allegation that coal was so sold and delivered is necessary to state a case under the ordinance.</p>

<p>1. Executions—Expenses of Officer Should be Approved by the Court —Rights of Third Parties.—Although expenses of a sheriff having charge of an execution may have been treated by the parties in the execution as necessary expenses, and as such deducted from the amount made on the execution, yet before they can be lawfully allowed as damages in a proceeding against a third party, it should be made to appear that they have been ascertained - and allowed by the- court issuing the execution under which the property was seized.</p> <p>2. Injunctions—Solicitor's Fees on Dissolution of.—The court holds that the appellant should have been allowed a proper amount for solicitor’s fees for services rendered in procuring the dissolution of the injunction in this case.</p>

<p>Trespass, for the wrongful levy of a writ of replevin.' Appeal from the Circuit Court of Cook County; the. Hon. Thomas G. Windes. Judge, presiding.</p>

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

<p>1. Measure of Damages—In Actions for Personal Injuries.—The compensation for injuries to a previously healthy and active woman and mother, leading a life of usefulness - to herself and others, is beyond the domain of exact measurement, and the law has wisely left its ascertainment to a jury.</p> <p>2. Verdicts—When Not to be Set Aside.—Unless' a reviewing court can see from the record that a verdict in an ..action for personal injuries is the result of improper influences, it will not be. set aside for excessiveness, especially where the discretion of the trial judge has been exercised by requiring a remittitur do satisfy his sense of what is adequate compensation.</p> <p>3. Attorneys—Their Duty to Talk to Witnesses.—It is not only the right but the duty of an attorney of a party to a cause to talk to his witnesses and to learn from them their knowledge of the facts and circumstances of the case, and what their testimony will be concerning the same before calling them to the stand to testify and no improper inferences are to be drawn from the performance of such duty. To instruct a jury that such fact may be considered by them, together with all the other facts in evidence, in determining the weight of the.testimony of such witnesses, may in a proper case be ground for reversal.</p>

<p>Bill, to set aside a former decree. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Fellow-Servants—Foreman of Contractors, and Employes of a Railroad Company.—A' foreman and gang of men were building stone walls, the work being done for a railroad company by contract, under which the railroad company was required to furnish the necessary switching and side track facilities to place the stone at the sites where it was to be used, the company to unload it promptly, and under which contract the course of business was that said foreman directed the servants of the railroad where he wanted the stone placed, but had no voice in saying how they should be got there. It was held, that the relation of fellow-servants did not exist between such foreman and the servants of the railroad company.</p> <p>2. Trials by the Court—Effect of Finding.—The finding of a court trying a cause without a jury, in regard to questions of negligence and ordinary care, stands upon the same footing as the verdict of a jury upon such questions.</p>

<p>Debt, for rent. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding.</p>

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

<p>1. Appeal Bonds—What is a Breach of.— The non-payment of the amount due upon a judgment which has been affirmed in part on appeal, a remittitur having been entered to the balance, is such a breach of the appeal bond as will support an action.</p>

<p>1. Chattel Mortgages—After-Acquired Property.—A chattel mortgage upon property to be acquired by the mortgagor after its execution is ineSectual.</p> <p>2. Same—Upon a Stock of Merchandise Kept for Sale.—A chattel mortgage upon a stock of merchandise on hand and kept for sale is void as against purchasers.</p> <p>3. Same—Foreclosure by Agents Under General Directions.—General directions to his salesman by the holder of a chattel mortgage, which covers the right of possession of the premises, to foreclose the same, leaves to such salesman the exercise of discretion as to taking possession of the premises.</p> <p>4. Verdicts—When Final.—A verdict upon conflicting and irreconcilable evidence is final.</p>

<p>Assumpsit, on an account stated. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Case—Where the Action Lies.—The action of case lies only for the breach of such duties as the law implies from the existing relations of the parties, whether such relations have been established with or without the aid of a contract; but if created by contract it is no objection to the action that the performance of the duty in question has been expressly stipulated for if it would have existed by reason of such relations without stipulation</p> <p>2. Same—Where the Action Lies.—A malting company received a quantity of barley from a brewing company under a contract to ma’t the same ánd to redeliver the same to the said brewing company. The malting company malted the barley but failed to deliver the same according to the terms of the contract. After a demand was made for the delivery of the malt, it was destroyed by fire. It was held, that an action of case would lie for the value of the malt.</p> <p>3. Legal Obligations—When Not Varied by Contract.—When language is used in a contract which does no more than express in terms the same obligation which the law raises from the facts of the transaction itself, the party using the language is no further bound than he would have been without it.</p> <p>4. Bailments—Loss of the Property by the Bailee.—In an action against the bailee for the loss of the property bailed, if the bailee proves that the loss was occasioned by fire, the burden of proof is shifted to the bailor to show the negligence or fault of the bailee.</p>

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

<p>Replevin.—Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</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. Appellate Court Practice—Grounds for Reversal Must be Shown by the Abstract.—Whatever the appellant relies upon for a reversal of the judgment must be shown by the abstract.</p>

<p>1. Bills of Exceptions.—Must Shoio That They Contain all the Evidence.—If a bill of exceptions does not show that it contains all of the evidence a court of review will presume that the decision of the lower court, which could be justified, was justified by the evidence not shown in the bill of exceptions.</p>

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

<p>1. Receivers—Appointment of, Without Notice.—A receiver for an insolvent corporation may be appointed without notice, when it is shown that notice can not be served upon the officers of such corporation.</p>

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

<p>1. Specific Pebfobmance— Will not be Granted at the Request of a Party when it Can Not be Enforced Against Him.—A contract to be specifically enforced by the court must be mutual; that is to say, such that it may be enforced by either of the parties against the other, and it ■ is immaterial what constitutes the want of mutuality, whether resulting from personal incapacity, from the nature of the contract, or from any other cause; whenever it is ascertained that the contract is incapable „ of being enforced against one of the contractors, he will be equally incapable of enforcing it against the other party.</p> <p>2. Same—Of'Contracts Including a Series of Acts.— Courts will not undertake to enforce specific performance of contracts extending over considerable time, and including a series of acts, essential to a complete performance; and among such contracts, non-enforceable specifically, railroad building contracts are included.</p> <p>3. Injunctions—On Bills for Specific Performance. —Where the object of a bill is to enforce specific performance of a contract, and that object can not be attained, a writ of injunction, ancillary thereto, will usually fall with the bill; for a court will not say we are unable to decree a specific performance of the contract, but we will restrain from actions which are inconsistent with it.</p> <p>4. Same—Issuance of, Without Notice.—To avoid the necessity of notice of an application for an injunction, the complainant must show such facts by sworn statement as will lead the court to the conclusion that the rights of complainant will be unduly prejudiced if notice be given before the writ issues. And a statement that “ complainants fear that unless restrained immediately and without notice, said parties * * will enter into some contract or make some fraudulent settlements whereby the interests of complainants * * * will be greatly diminished and injured,” is too vague and indefinite to warrant a court in concluding that an injunction should issue without notice.</p>

<p>Petition for Certiorari.—Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Pleading—Failure of Consideration.—A failure or partial failure of consideration of a note sued on must be specially pleaded to enable a party to make that defense. Evidence of it is not admissible under the general issue.</p>

<p>1; Banks and Banking—Checks Presented After Insolvency of Bank, asa Set-off Against Debt to Bank.—A debtor of an insolvent bank, which has made an assignment for the benefit of creditors, can not set-off against his debt to the bank, a check drawn in his favor by a depositor of the bank, and not presented for payment until after the assignment.</p>

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

<p>1. Damages—$2,500 Excessive Under the Circumstances of this Case.—The evidence in this case fails to show any basis for the jury’s assessment of damages except shock, a sprained wrist, black and blue discolorations on the left limb, back and sides, and pain resulting from these, and for such injuries $2,500 is excessive compensation.</p>

<p>1. Conspiracy—As an Aggravation of Damages.—Conspiracy may be averred and proved in aggravation of damages in an action on the case, but it is not a material averment except where the wrong complained of would not have been actionable without it.</p> <p>2. Case—For Breach of a Duty Arising Under a Contract.—When the relation of master and servant exists, and under the custom of the business it becomes the duty of the master, when the relation is severed, to give the servant a letter or “ clearance card,” the servant has the right to treat a breach of this duty as tortious and sue in case.</p> <p>3. Practice—Motions in Arrest of Judgment.—A party can not move in arrest of judgment in the trial court, after judgment of that court upon a demurrer presenting the same objections.</p> <p>4. Pleading—Defects Cured after Verdict.—A verdict will aid a defective statement of title, but will never assist a statement of a defective title or cause of action. If the issue joined be such as necessarily required, on trial, proof of the facts so defectively stated or omitted and without which it is not to be presumed that the verdict would have been rendered, such defect, imperfection or omission is cured by verdict.</p> <p>5. Master and Servant—Right of a Servant to Demand a Letter of Recommendation.—A master is under no legal obligation to give a testimonial of character to his servant, in the absence of an agreement or well recognized usage, under which an implied agreement to do so arises. And such a custom or usage must be so well known and established that it becomes part of the contract by implication, without expression.</p> <p>6. Same—Indictment Against Servant in Suit for Failure to Give Letter of Recommendation.— In a suit by a servant against his master for a failure to furnish a letter of recommendation, where there is nothing to show that the defendant had any ground to refuse such letter other than the return of an indictment against the servant, and where the evidence shows that the servant was acquitted and stood with a record of ten years of faithful service, if the other elements necessary to a recovery be present, the fact that such indictment was returned will not constitute a defense.</p> <p>7. Instructions—Error Without Injury not Ground for Reversal. — Although an instruction may have contained an error, if it appears that the context and the facts of the case would correct the error and that the jury were not misled by it, it will not be ground for reversal.</p>

<p>1. Construction—Of Contracts of a Surety.—The same rules are to be applied in ascertaining the meaning of the contract of a surety which are used in ascertaining the meaning of any other contract, although when the intention of the parties has been arrived at by the use of those rules, the liability of the surety should not be enlarged or extended by implication or construction.</p> <p>2. Bonds—To Cover the Performance of Future Contracts.—A bond may be made to cover the faithful performance of contracts that may be made after the execution of the bond, if the intention of the parties to that effect is clearly expressed.</p> <p>3. Sams—A Bond Construed.—A bond dated October 4, 1892, recited that on January 18, 1892, A entered into B’s service as an agent, “ as shown in a contract hereto annexed.” The bond read as follows : “ Now, therefore, if the said A shall well and faithfully discharge all his duties pertaining to the said service, as he may be instructed from time to time by the said B so long as he shall continue in his service, whether under the contract this day made, or any subsequent contract, and shall remit promptly, all money collected or received by virtue of said service, and shall, whenever thereunto required, make and give a just and true account of all moneys, property and other things which shall have come into his possession, custody or charge, by virtue of said contract hereto annexed and made a part hereof, then this obligation to be void, otherwise to remain in full force and effect.” Held, that the bond was a security for the faithful performance of all duties and the remittance of all money received under the contract of January 18th, from the time of the execution of the bond, and also under any subsequent contracts entered into for the performance of the same service.</p>

<p>1. Pleading and Evidence—Ms to Negligence. —In a suit for personal injuries, where the negligence charged is an order in regard to unloading timber from a car, it is proper to allow witnesses to testify as to the proper method of unloading the timbers. Such evidence does not introduce a new charge of negligence, it only illustrates the negligence of the order given.</p> <p>3. Instructions—Repetitions in, Not Required.—Where the first clause of an instruction expressly informs the jury that their belief must be formed from the evidence, such instruction is not vitiated by the fact that in a subsequent part of the same instruction they are told that if they believe, etc., they will find, etc., no reference being made to the fact that such belief must be founded on the evidence.</p> <p>'3, Same—Need Not be Duplicated.—It is not error to refuse to give an instruction stating practically the same proposition as that stated in another which is given.</p> <p>4. Same—Should Relate to Facts Shown.—Where there are no facts in a case on which to base a proposed instruction, it should be refused.</p>

<p>1. Promissory Notes—Assigned After Maturity—Want of Consideration as a Defense.—A person who purchases a promissory note after it is due takes it subject to the defense of a want of consideration, even though he gives full value.</p> <p>2. Appellate Court Practice— Where Instructions do not Appear in the Abstract.-—Where the instructions do not appear in the abstract this court will decline to consider objections to them made in the briefs.</p>

<p>1. Insurance—Forfeiture of Policy for Non-Payment—Partial Payments After Forfeiture.—Where a contract of insurance against loss by fire or wind provides that failure to pay a premium note shall work a forfeiture of the policy, but that after such failure the insured shall have the right to make payment and revive the policy, the acceptance of partial payment waives nothing, and if a loss occurs before full payment the insured can not recover.</p>

<p>1. Verdicts—Not Sustained by the Evidence.—Much as a court of appeal may dislike to reverse a decree upon the ground of want of evidence to support the verdict upon which it is based, they will feel constrained to do so where, as in this case, the verdict is opposed to a clear preponderance of the evidence.</p>

<p>1. Mortgages—When Deeds, Apparently Absolute, Will be Held to Be.—A deed, once a mortgage is always a mortgage, and the true test in determining whether a deed absolute on its face will be held to be a mortgage is, what was the real intention of the parties? Parol evidence may be resorted to to determine the real intention, and courts will look into the whole transaction and consider all the attending circumstances to determine the intent.</p> <p>2. Same—Presumptions Regarding Deeds Apparently Absolute,—A deed absolute in form is, in law, presumed to be a deed until clearly proved to be a mortgage; ,and where a deed is given by a mortgagor to the mortgagee, the fact that the debt is canceled and the mortgage released, and at the same time a contract for a reconveyance executed by the mortgagee, is evidence tending strongly to show that the deed was not intended as a new mortgage.</p> <p>3. Same—How Presumption that Deed was Intended as a Mortgage May be Rebutted.—Where a deed has been given by a mortgagor to a mortgagee, and at the same time a contract for recoveyance executed, any presumption that may arise that the transaction amounts to a mortgage may be rebutted by facts showing that the debt was surrendered and canceled at the time of the conveyance.</p> <p>4. Laches—As a Bar to Equitable Relief,—A deeded certain land to B, who sold it to C, C took possession and made improvements without any notice of a claim by A that the deed was a mortgage. A allowed him to rest under the belief of the bona fide of his purchase for over five years without taking any steps to enforce such claim. Held, that under the circumstances of the case this delay was unreasonable and that A was not entitled to relief.</p>

<p>1. Verdicts—Sustained by the Evidence.—The court holds in this case that the evidence in the record shows that the plaintiff proved by a preponderance of the evidence, all the material facts necessary to entitle him to recover, and that the verdict of the jury must stand.</p>

<p>Trespass, for a wrongful levy. Appeal from the Circuit Court of Williamson County; the Hon. Oliver A. Barker, Judge, presiding.</p>

<p>1. Verdicts—On Conflicting Evidence.—After a careful examination of the whole record in this case, the court is unable to say that the verdict is wrong, and the judgment is therefore affirmed.</p> <p>2. Promissory Notes—Given as Receipts for Money to be Used for the Benefit of the Payee.—In a suit on two promissory notes, the defendant filed a special plea, averring in substance that the notes represented moneys advanced to the defendant as the agent of the plaintiffs, to be expended in purchasing goods for them, and that the notes were given merely as receipts for these moneys, which were thereafter expended by defendant in purchases in accordance with the terms of the agency. Held, that the plea set up a good defense.</p>

<p>Assumpsit, on the common counts. Error to the Circuit Court of. Monroe County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>Transcript, from a justice of the peace. Error to the County Court of Clinton County; the Hon. Jesse Jones, Judge, presiding.</p>

<p>1. Agency—The Law as to the Existence of the Relationship of Principal and Agent Applied.—The court holds that the registrar of the Southern Illinois Normal University, to whom was delivered a check for salary due appellee, acted as the agent of the treasurer of the University and not as the agent of appellee.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Perry County; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>Replevin, to recover goods taken under a mortgage. Appeal from the Circuit Court of Pulaski County; the Hon. Joseph P. Robarts, "Judge, presiding.</p>

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

<p>Trespass on the Case, for damage caused by water. Appeal from the Circuit Court of Mercer County; the Hon. John J. Glenn, Judge,</p> <p>presiding.</p>

<p>Forcible Detainer.—Appeal from the Circuit Court of De Kalb County; the Hon. Charles Kellum, Judge, presiding.</p>

<p>1. Trials by the Court—Ora Conflicting Evidence.—A judge trying a case without a jury sees the witnesses when they testify, his opportunities for discovering the truth are superior to those possessed by a court of appeal, and as a rule his finding should not be disturbed.</p>

<p>Assumpsit, for breach of a warranty. Appeal from the Circuit Court of Peoria County; the Hon. Thomas'M. Shaw, Judge, presiding.</p>

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

<p>1. Instructions—Error Without Injury.—A court of appeal 'will not interfere with a judgment on account of the giving of an erroneous instruction, where it is clear that the instruction could not have misled the jury.</p> <p>2. Costs—Where a Judgment is Corrected in a Mere Matter of Form.. —Where a judgment is corrected on appeal as to a matter that could have been corrected at any time in the trial court on motion, and that can be corrected in this court on motion, without reversal, the court will exercise its discretion in its award of costs.</p>

<p>1. Ordinary Care—Application of the Buie to Children. —A child is only required to exercise that degree of care and caution which children of like age, capacity and experience may reasonably be expected to use under like circumstances.</p> <p>. 2. Same—Of Children—A Question for the Jury.—An instruction telling a jury that the law does not require of an infant six years of age, or any other age, the same degree of care and caution that it does of an adult, but only requires such care and caution as is ordinarily exercised by one of her age, is erroneous, because, whether a child is of sufficient age to exercise proper care for its' safety under the circumstances is always a question of fact for the jury. Such an instruction however is not ground for reversal where the age of the infant was such that no harm could have been done by it.</p> <p>3. Railroads—Sunning Trains at Great Speed as Negligence.—Considering the great amount of travel over the crossing where the injury sued on was inflicted, the density of the population at that point, and she rather meager provision which had been made by the railroad company for warning the public of approaching trains, the court concludes that there was negligence in running the train, which struck appellee, at the rate of more than twenty miles an hour.</p>

<p>Mechanic’s Lien.-—Appeal from the Circuit Court of Livingston County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Trials by the Court—Finding Not Disturbed.—The trial judge trying this case without a jury saw the witnesses, and heard them testify, and was in a better position to pass upon the credit to be given to their testimony than this court.</p> <p>3. Costs—Where the Judgment is Erroneous as to Parties Not Appealing.—The fact that a judgment is erroneous as to a defendant not appealing, does not entitle an appellant, as to whom the judgment is affirmed, to a judgment for costs.</p>

<p>1. Witnesses—Competency of a Complainant When the. Defendant Claims as Heir of a Deceased Person.—The complainant, in a bill to foreclose, as a mortgage, a deed absolute on its face, can not be allowed to testify as to the amount due, where the suit is against the heirs of the alleged mortgagor, upon the ground that he is testifying in the interest of the defendants by showing that the transaction was a mortgage.</p> <p>2. Limitations—As a Bar to a Mortgage.—The only limitation law that could be invoked under the circumstances, of this case (a suit to foreclose a mortgage) was that of twenty years’ adverse possession.</p>

<p>1. Joint Liability—Not Shown by the Evidence—Under the facts of this case, as shown by the evidence, the appellees have no right of action against appellant, and the judgment must be reversed.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Carroll County; the Hon. J. C. Carver, Judge, presiding.</p>

<p>1. Practice—Judgment in Excess of Damages Claimed in Summons.—Rendering judgment in excess of the damages stated in the summons is not ground for the reversal of a judgment, where the proper amount is stated in the praecipe and the declaration, if the objection is first made on appeal.</p> <p>3. Defaults—Plea on File.—It is error to render judgment against a defendant by default, when his plea to the merits is on file.</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>1. Railroads—Proof of Liability for Damage Caused by Fire.— In a suit to recover for damages alleged to have been occasioned by fire set by sparks from a locomotive, if it is shown that such sparks set the fire, a prima facie case is established, and the burden is thrown upon the defendant to rebut the liability.</p> <p>2. Same—Liability for Damage Caused by Fire.—In a suit to recover for damages alleged to have been occasioned by fire set by sparks from a locomotive, if it is shown that the fife actually started in the railroad company’s right of way, in consequence of dangerous combustible materials having been negligently left thereon, a clear case of negligence is made against the company, without reference to the condition of the engine.</p> <p>3. Pleading—Plea of General Issue Does Not Put in Issue Incorporation of a Defendant Company.—In a suit against a railroad company to recover for damages alleged to have been occasioned by fire set by sparks from a locomotive, if the defendant plead only the general issue, proof that it is an incorporated company is not required.</p>

<p>1. Mortgages—Deeds Absolute in Form—Compensation for Loss of Equity of Redemption.—A deeded certain land to B in satisfaction of a debt, taking an agreement for a reconveyance upon payment of the amount due within two years. B sold the land to C for the amount of the debt and C traded it for other property with the advice and co-operation of A. At a later date A filed a bill alleging that the transactions between himself, Band O amounted to a mortgage of the original property to O, and praying for a money decree for the value of his alleged equity of redemption. 0 claimed that he had no knowledge that the original deed to B was intended as a mortgage, that his own deed was absolute and that in the subsequent transactions A acted as his agent. Held, that as the trades had been made with the consent and acquiescence of A, whatever equity, if any, he had in the original land must be considered as transferred to the property traded for, and that it would be improper to charge O with the money value of such equity, and to give A the money, when, if the original transaction was a mortgage, O would be entitled to a payment in money by way of redemption.</p>

<p>1. Bailroads—Persons About to Cross Tracks May Rely on Flagman.—A person knowing that a flagman is usually stationed at a railroad crossing has a right to presume that he is at his post and will do his duty, and in the absence of any warning, or signal of danger, is not chargeable with negligence in proceeding to cross the tracks.</p>

<p>Claim in Assignment Proceedings.—Appeal from the County Court of Peoria County; the Hon. Robert H. Lovett, Judge, presiding.</p>

Bill, to confirm an alleged right to close a ditch, and cross-bill to compel the removal of obstructions therefrom. Appeal from the. Circuit Court of Livingston County; the Hon. Charles R. Starr, Judge, presiding.

<p>1. Contracts—A Sealed Instrument May be Abrogated by Parol.— • A contract under seal may be abrogated, canceled and surrendered by an executed parol agreement.</p>

<p>Assumpsit, on an insurance policy. Appeal from the City Court of Elgin; the Hon. Russell P. Goodwin, Judge, presiding.</p>

<p>1. Pleading—A Plea of Avoidance Must Give Color.—Pleadings in avoidance must give color to the opposite party, that is, give him credit for having an apparent or prima facie right of action, independently of the matter disclosed in the plea to destroy such apparent right.</p> <p>3. Trusts and Conspiracies Against Trade—Pleas Under the Statutes Against.—In an action of assumpsit for wall paper sold and delivered the defendant filed pleas alleging that the plaintiff company was a trust or combine organized for the purpose of restricting trade in, and limiting the production and increasing the price of wall paper; the pleas failed to show that the sale counted on was in furtherance of, or connected with, the unlawful combination, if any such existed, or that the sale was at unreasonable prices produced by any unlawful combination. Held, that the pleas did not set up a good defense.</p> <p>3. Bills of Exceptions—Must Show Facts Relied on for Reversal.— This case was placed on “ the first trial calendar ” of the trial court, and a motion to strike it off, on the ground that that action was in violation of a rule of such court, was denied. The bill of exceptions did not show an exception to said ruling, nor contain any information as to the contents of the rule alleged to have been violated. Held, that this court must presume that the trial court decided properly.</p>

<p>1. Former Decisions—Approved and Followed.—The court holds that the evidence in this case discloses substantially the same state of facts as appeared in the case of City of Peoria v. Ballance, 61 Ill. App. 369, and that the principles announced in the opinion in that case are decisive of this.</p>

<p>Trespass, for a wrongful levy. Appeal from the Circuit Court of Rock Island County; the Hon. John J. Glenn, Judge, presiding.</p>

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

<p>1. Corporations—Act Done by Officers of a Corporation as Officers of Another Corporation.—Persons acting as the officers of two corporations, operated the two as if they were but one company, and as officers of one company, contracted for machinery to be placed and used in the plant of the other, and at a later date as officers of the latter company gave its notes for the purchase price of the machinery. Held, that the authority of the company making the purchase to act for the other company could not be questioned for the purpose of avoiding a clause of the contract authorizing the removal of the machinery in case of nonpayment.</p> <p>2. Payment—TP7im a Note for the Amount Due Will Amount to.— Taking a note, either of the debtor or of a third person, for a pre-existing debt is not a payment of the debt unless it be expressly agreed that the note is taken in absolute payment, or unless the creditor has parted with the note so as to subject the debtor to double payment.</p> <p>3. Same—Burden of Proof as to, When a Note is Given for the Debt. —Except in a case where the evidence raises a positive inference of discharge the burden of proof is on the debtor, to show that a note for a pre-existing debt was both given and received as absolute payment.</p> <p>4. Voluntary Assignments—Title of the Assignee.—Under a general assignment, the assignee takes as a mere volunteer, and the property assigned is subject to the same defects of title, equities and liens as when in the hands of the assignor.</p> <p>5. Same—Duty of the Assignee as to the Bights of Mortgagees.—On an appeal by an assignee, a court of appeal will not interfere with a finding of the trial court in favor of a person claiming property in the hands of such assignee on account of the alleged rights of a mortgagee. It is not for the assignee to set up for the mortgagee rights which he does choose to assert for himself.</p> <p>6. Sales—Clause Giving Vendor Bight to Seize Property for Nonpayment, Valid.—A clause in contract of sale of machinery giving the vendor the right to remove the machinery in case of non-payment is legal and binding between the parties to the contract even though the machinery be attached to the real estate.</p> <p>7. Fixtures—Whether Beal or Personal Property—Agreements.— Things clearly personal in their nature may retain their character of personality by the express agreement of the parties, although attached to the realty in such a manner that without agreement they would lose that character, provided they are so attached that they may be removed without material injury to the articles themselves or to the freehold.</p> <p>8. Same—Whether Beal or Personal Property—Bights of Mortagees. —If chattels are sold to an owner of real estate on an agreement, that their character as personal property is not to be changed, and that the title is to remain in the vendor until the purchase money is paid, a prior mortgagee of the land can not claim them, although subsequently annexed to the freehold, if they can be removed without material damage to the real estate or to the chattels themselves.</p>

<p>1. Negligence—Allowing a Railroad Car to Obstruct a Street Crossing.—Leaving a box car in such a position as to partially obstruct a public highway crossing for a period of five minutes, by a freight engine engaged in switching, is not such an act, in and of itself, as to constitute negligence, and render the company liable for injuries sustained by one who undertakes to pass, and in doing so is hurt by reason of his horse becoming frightened at the car.</p>

<p>1. Infants—Power of a Court of Chancery as to the Custody of.— The power of a court of chancery as to the custody of the children of divorced parents is not exhausted by the entry of the original order in the divorce suit, but is continuing for the purpose at any time, of making such alterations thereof as shall appear to the chancellor, in the exercise of a sound discretion, reasonable and proper.</p> <p>2. SAME—Pemoval From the State of Wards of the Court not Favored.—The custody of an infant being in dispute, the mother admitted an intention to take him out of the State and beyond the jurisdiction of the court, where his father and a brother and sister would have no opportunity to visit or associate with him. Held, that this was against the policy of the law and ought not to be permitted.</p>

<p>Bill, for the construction of a will. Appeal from the Circuit Court of Iroquois County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Verdicts—Upon Conflicting Evidence.—While the evidence in this case was conflicting, the court can not say that the jury was not warranted in finding as they did. Certainly the verdict is not so manifestly against the weight of the evidence as to require a reversal of the judgment for that reason.</p> <p>3. Error—Without Injury, not Ground for Reversal.—The fact that instructions as to the measure of damages were conflicting and inharmonious, and contained inaccuracies, furnishes no ground for complaint where no damages were allowed.</p>

<p>Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>'■ 1. Res Judicata—Parties Must Appear in Same Capacity and Subject-Matter Must be Identical.—A finding for the defendant upon a plea of former recovery can not be sustained where the parties to the judgment pleaded were not parties in the same capacity as those in the suit in which the plea is filed or where the issues ,are not identical.</p> <p>3. Same—Suit for Rent, After Recovery on Bond in Forcible Entry and Detainer Proceedings.—The defendant in a forcible detainer suit having been defeated took an appeal giving the usual bond. The appeal was subsequently dismissed and possession of the premises surrendered, but in the meanwhile rent had accrued in excess of the penalty of the bond. Held, that the landlord had two separate causes of action for rent; one upon the appeal bond against the tenant and his security, and the other against the tenant for rent due in excess of the amount of the bond and that a recovery upon the former demand was not a bar to a suit upon the latter.'</p>

<p>1. Insurance—Construction of Forfeiture Clauses.—A provision in an insurance policy that, under certain circumstances, the policy shall be void, should be construed most strongly against the insurer.</p> <p>2. Same—Effect of Unlawful Use of Property.—The temporary use of insured property for purposes forbidden by the policy only suspends its operation, and when such use ceases the policy revives.</p> <p>3. Same—Questions Involved Where Risk is Alleged to be Increased by Alterations.—Under the policy sued on in this case, the first question is, did the building of the shed and the use of the gasoline engine increase the risk? And if it be found that the risk was thereby increased, then the question arises whether there was any increase in the risk when the engine was not in operation, and whether the fire was caused by such increase.</p> <p>4. Same—Objections to Title of Insured.—In a suit on an insurance policy, the point that the plaintiff had but a leasehold interest in the land on which the insured building stood, when the contract required that he have title in fee simple, can not be made for the first time on appeal.</p>

<p>1. Partnership—Each Partner is Presumed to Know the State of the Accounts of all the Partners.—A partner having access to the books of his firm is presumed to know the state of the account of each partner.</p> <p>2. Same—A Debt of a Partner to the Firm is Extinguished by a Sale to the Other Partners. —Where, the books of a firm show that one of the partners is indebted to the firm, the purchase of his interest in the partnership by the other partners extinguishes the debt.</p>

<p>Bill of Interpleader.—Appeal from the Circuit Court of Henry County: the Hon. Hiram Bigelow, Judge, presiding.</p>

<p>Bill, to reform a contract. Appeal from the Circuit Court of Iroquois County; the Hon. Charles R. Stare, Judge, presiding.</p>

<p>Bill, for an injunction. Appeal from the Circuit Court of OgleCountv; the Hon. J. C. Carver, Judge, presiding.</p>

<p>1. Verdicts—On Conflicting Evidence.—It is the peculiar province of the jury to decide disputed questions of fact on conflicting evidence, and in this case the court holds that the finding of the jury is not so manifestly against the weight of the evidence as to warrant the court in saying they were actuated by passion or prejudice.</p> <p>2. Pleading and Evidence— Ordinances of a City.—A declaration alleged a violation of an ordinance of the city, Sec. 3, Chap. 9, approved March 27, 1888, and on the trial the defendant objected to the introduction of the ordinance. Held, that the ordinance was admissible and that defendant should have demurred if he desired to raise the point that the ordinance was not set out with sufficient particularity.</p>

<p>Assumpsit, on an insurance policy. Appeal from the Circuit Court of Whiteside County; the Hon. J. C. Carver, Judge, presiding.</p>

<p>1. Landlord and Tenant—Right of Landlord to Distrain.—^The evidence in this case clearly establishes that appellee removed, without his landlord’s consent, a sufficient portion of the crops raised on the demised premises to endanger the lien of the landlord, and under the provisions of the statute the landlord was entitled to recover the amount of rent unpaid, by distress proceedings.</p> <p>2. Contracts—Complete Performance Essential to Recovery in this Case.—The contract relied upon as a set-off in this case was not severable and appellee could not demand payment of the fifty dollars provided for therein without showing his entire and complete compliance with that contract.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of' Will County; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>Assignment Proceedings.—Appeal from the Circuit Court of White-side County; the Hon. J. C. Garter, Judge, presiding.</p>

<p>Bastardy.—Appeal from the County Court of La Salle County: the Hon. Henry W. Johnson, Judge, presiding.</p>

<p>1. Contracts—Whether Sales or Bailments.—A contract provided that the consignee should pay for goods to be delivered “ as per prices and terms annexed to said goods,” and that the consignor should carry “ all goods remaining unsold.” Held, that the contract was a sale and not a bailment.</p> <p>2. Same—Whether Sales or Bailments—The Bvle Stated.—Where there is no obligation to return an article, the party receiving it being at liberty to return another thing of equal value, he becomes a debtor to make a return, and the title to the property is changed—it is a sale.</p>

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

<p>1. Appellate Courts—Have no Jurisdiction of Constitutional Questions.—The constitutionality o£ the act of June 17, 1887, entitled “ An act to provide for appeals from interlocutory orders, granting injunctions or appointing receivers,” in so far as it purports to allow an appeal from an order overruling a motion to dissolve an injunction is fairly subject to question; and an appeal from such an order should go to the Supreme Court, as this couit has no power to pass on the validity of a statute.</p>

<p>Transcript, from a justice of the peace. Appeal from the County Court of Peoria County; the Hon. Robert H. Lovett, Judge, presiding.</p>

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

<p>1. Common Carriers—Liability for Loss of Baggage.—A common carrier is not exempt from liability for a loss of baggage which takes place because of an act of God, if such carrier has been guilty of any previous negligence or misconduct, which brings the property in contact with the destructive force, or unnecessarily exposes it thereto.</p> <p>2. Same—Liability of, for Loss of Baggage—Showing Necessary Where Loss is Caused by act of Cod.—In a suit against a common carrier for the value of lost baggage, an admission that the loss was caused by an act of God relieves the defendant from its liability as an insurer of safe delivery, and in order to again impose upon it the presumption of liability the plaintiff must furnish proof of concurring negligence.</p>

<p>Trespass, for the destruction of a barn. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judgé, presiding.</p>

<p>1. Practice—Exclusion of Evidence as Error—Showing Necessary. —The exclusion of evidence can not be held to be error, unless it is shown that injury resulted therefrom, and to show injury by the exclusion of evidence, the facts proposed to be proved must appear.</p> <p>2. Trials—Reading from the Pleadings in Argument.—A refusal by the trial court to allow defendant’s attorney to read from the affidavit filed with the declaration and comment thereon in closing argument is not error calling for a reversal, where there was no contest as to the amount due.</p>

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

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

<p>1. Instructions—When Justified by the Evidence.—In a personal injury suit the jury were instructed that if they found from the evidence that the injury was permanent and incurable they should take that fact into consideration in assessing the damages. No expert evidence was offered on this point, and the testimony was not such that an ordinary person not a medical expert could say, with absolute certainty, that the injury to the plaintiff was permanent or incurable; it tended, however, to show a condition from which it would not be unreasonable for men of ordinary information to infer that the injury was permanent. Held, that the evidence was sufficient to justify the instruction.</p> <p>2. Practice—Improper Remarks of Counsel Should be Objected to.— Counsel should not be permitted to allow opposing counsel to make improper remarks to the jury without objection, and first call the attention of the court to them on motion for a new trial.</p> <p>8. Appeals and Errors—Excessive Damages as Ground for Reversa!.—Where liability is clearly established an excessive verdict caused by improper remarks of counsel furnishes no ground for a reversal, if the excessive damages are remitted.</p>

<p>1. Usury—Duplicate Promises.—A principal note contained a promise to pay interest. Notes for the amount of the interest were also given, this fact being recited in the principal note. Held, that the form of the transaction did not render it usurious, only one payment being intended.</p> <p>2. Evidence—Of the Payment of Taxes.—The receipt of a county collector is competent evidence of the payment of taxes.</p> <p>3. Mortgages—Allowance of Solicitor's Fees Under Trust Deed.—</p> <p>Attorney’s fees may be allowed to the holder of notes secured by a trust deed providing for the payment of attorney’s fees to the trustee in case of foreclosure, as it matters not to the grantor whether he pays to the trustee or the holder of the notes.</p> <p>4. Promissory Notes—Indorsements as Evidence of Title.—Notes offered in evidence by the complainant in a foreclosure suit showed indorsements to a third person which the complainant testified were for collection only. Held, that this was sufficient as equity looks to substance and as the indorsements might have been canceled.</p> <p>¡5. Equity Practice—As to Orders of Reference.—A cause was referred to a master in chancery to take proof of the allegations of the bill. The defendant did not ask that the master be ordered to take proof of the averments of the answer, or make any objection to the form of the order, and he and his witnesses testified before the master. Held, that the defendant could not complain of the form of the order on appeal.</p>

<p>1. Ordinary Care — When a Question for the Jury. —Whether, under all the circumstances of this case, the plaintiff was exercising, at the time of the injury, the care that an ordinarily prudent man would have exercised, is a question on which reasonable, fair-minded men might fairly arrive at different conclusions, and was properly submitted to the jury.</p> <p>- 2. Master and Servant — Rislcs Assumed by the Servant.— Any number of instances of negligence of a master not amounting to a custom or mode of doing business will not cast upon the servant the risk of subsequent or other similar acts of negligence. To accomplish this result there must be a custom known to the servant, or which by the exercise of ordinary care he should have known.</p> <p>3. Contributory Negligence—Failure to Guard Against a Custom of Defendant to Disobey the Law.—In an action against a railroad company for personal injuries, in which the negligence charged is a failure to ring a bell as required by a city ordinance, evidence that it was the custom of the company to disregard the ordinance, and that the plaintiff knew it, is admissible on the question of contributory negligence.</p> <p>4. Damages—Trial Court Should Decide Whether they are Excessive. —A trial judge is generally in a far better position than an Appellate Court to decide whether the damages awarded by a jury are excessive, and he should never leave this duty to be performed by an appellate tribunal.</p> <p>5. Same—$%0.000 Excessive Under the Circumstances of this Case.— A verdict for $20,000, damages for the loss of an arm, in favor of a young man twenty years of age, who was earning $1 per day at the time of the accident, and who afterward secured employment at $35 per month, is excessive, and should not be allowed to stand.</p>

<p>1. Judgments.—Interference With, in Equity.—There is no such showing of fraud, accident or mistake in this case as warrants a court of equity in assuming jurisdiction to revise a judgment at law.</p> <p>2. Judicial Sales—Inadequacy of Price.—Inadequacy of price is not sufficient ground for setting aside a judicial sale.</p> <p>3. Receivers—Where Court has no Jurisdiction of the Subject-Matter.—If, on a bill to set aside a judicial sale, it appear that the court is • without jurisdiction to grant the ultimate relief prayed by the bill it has no power to appoint a receiver.</p>

<p>1. Mortgages—Foreclosure of Junior and First Liens.—A prior mortgage can not be foreclosed under a decree upon an original bill filed by a junior mortgagee. If the holder of the senior mortgage desires a foreclosure in such suit, he must file a cross-bill, and if he does, he may be allowed solicitor’s fees if they are provided for in his mortgage,</p> <p>2. Same—Form of Decree of Foreclosure.—A decree of foreclosure that does not direct the defendants to pay, but only orders that the premises be sold if they do not, is not subject to objection by them.</p> <p>3. Equity Practice—Expenses of Foreclosure Must Have Been Objected to if Questioned on Appeal.—Where an item of expense allowed to the complainant in a foreclosure suit by a master in chancery was not objected to before him, nor excepted to before the court, the propriety of its allowance being the subject of evidence, the allowance can not be questioned for the first time on appeal.</p>

<p>1. Negligence—Failure of Master to Keep Machinery in Repair— When Defects Will Create Liability.—In a suit by a servant against his master for an injury said to be due to the negligence of the master, if it be shown that a machine causing the injury worked defectively and that the master knew it, it is not material what particular flaw or impediment caused the improper working of the machine. Such improper operation is in itself a defect.</p> <p>2. Questions oe Fact—Contributory Negligence and Assumption of Razard by Servant.—That a plaintiff suing for personal injuries was, when injured, removing a piece of work with her fingers when she might have used a stick for the purpose, and that she had worked for some time upon machines somewhat similar in operation, establish neither contributory negligence or assumed hazard upon her part, conclusively and as matters of law.</p> <p>3. Instructions—A Proposition of Law Need Only be Stated Once.— After clearly informing the jury as to the law governing them on a particular question, the court is not obliged to, nor should it reiterate the same proposition of law in other instructions, coupled with different hypotheses of fact which might apply.</p>