Volume 71 — Illinois Appellate Court Reports

<p>1. Measure of Damages—For Defects in the Quality of Goods Sold.— Where goods sold prove not to be of the quality bargained for, the purchaser is entitled to recover the difference between the contract price and the market value of the goods at the time and place of delivery.</p> <p>2. Instructions—Error Without Injury.—A party to a suit can not complain, on appeal, of the giving or refusal of instructions on an issue upon which the jury found in his favor, as the verdict is conclusive that he was not harmed.</p>

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

<p>1. Appellate Court Practice—Errors not Argued Deemed Abandoned.—An assignment of error which is not referred to in the briefs will be deemed abandoned and will not be considered by this court.</p> <p>2. Practice—Motions for New Trial and in Arrest of Judgment.— A motion for a new trial should precede a motion in arrest of judgment, and when a motion in arrest is first heard and determined it is presumed that the motion for a new trial has been abandoned.’</p> <p>3. Same—Waiver of Objections.—Where no exception is taken to the overruling of an objection to evidence, at the time it was offered, the objection must be regarded as waived, and an instruction asking that the evidence be excluded from the consideration of the jury should be refused.</p> <p>4. Verdicts—At What Time they May be Received.—It is not error for the judge to receive the verdict of the jury in an interval between the adjournment of the court and the time set for it to meet again in pursuance of such adjournment. The reception of the verdict is a mere ministerial act.</p> <p>5. Negligence—An Instruction in Regard to, Considered.—An instruction in a personal injury case informing the jury that the defendant could not recover if he “ had actual timely notice of the approach of the engine which struck him,” was modified by adding “ that is, sufficient notice to enable him to get out of the way by the exercise of ordinary care.” Held, that the modification was properly made.</p> <p>6. Same—A Question for the Jury.—Whether the plaintiff in a personal injury suit was himself negligent, under the circumstances disclosed by the evidence, is a question for the jury and not for the court to detérmine, and an instruction telling the jury that certain facts, if proved, amount to negligence may properly be modified so as to tell them that such facts should be considered in connection with the other evidence in the case in determining the question of negligence.</p> <p>7. Railroads—Ordinances Regulating Speed of Trains and Requiring the Ringing of a Bell.—The fact that a person alleged to have been injured through the negligence of a railroad company, was an employe of such company, and was working in its private grounds at the time of the accident, does not exclude him from the benefits of a city ordinance regulating the speed of trains and requiring a bell to be rung constantly while a train is moving within the limits of the city.</p>

Assumpsit, on an insurance policy. Appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding! Instructions referred to in the opinion of the court: 2. If you believe from the evidence in this case that the insured died from any other cause than bowel trouble, cancer or tumor, and that plaintiff has made out, by the evidence, her case, as charged in the declaration, your verdict should be for the plaintiff. 3.

<p>1. Judgments—On Special Findings where General Verdict is Defective.—in. a suit against two defendants charging negligence the jury returned a general verdict, and also answers to a number of special interrogatories. The verdict found one of the defendants guilty, but did not mention the other, and the court rendered a judgment of not guilty in favor of the latter. Held, that while the verdict should have included both defendants, yet the omission was technical and not material, as the special findings were conclusive, and the judgment was the only one that could have been rendered even had there been a general verdict of guilty.</p> <p>2. Practice.—As to Questions Calling for Special Findings.—Questions which do not relate to mere evidentiary facts, but which relate to the ultimate facts upon which the rights of the parties directly depend, may be submitted to the jury for special findings, and probative facts from which the ultimate facts necessarily result stand upon the same basis. Hence, in this case, as an affirmative answer to the refused interrogatory would have been inconsistent with the verdict, it was error not to submit such interrogatory.</p> <p>3. Variance.—Allegations and Proofs Must Correspond.—It is a rule in pleading, subject to no exceptions, that a party must recover if at all, on and according to the case he has made for .himself, in his decclaration. lie is not permitted to make one case by his allegations and to recover on a different case made by the proof. And this rule applies where the declaration charges that an injury is the result of the concurrent negligence of two defendants, and the jury finds that it was caused by the negligence of but one of them.</p>

<p>1. Equity—Power of Court to Enforce its Decrees.—A court of equity has power to enforce its decrees by lawful methods, and an execution is a lawful method of enforcing the payment of money.</p> <p>2. Separate Maintenance—Decree for May be Modified at Any Time.—A decree for separate maintenance may, at any time, upon due notice, be amended or modified, as justice and equity may require.</p>

<p>1. Jurisdiction—0/ Justices of the Peace and County Courts.—Justices of the peace in this State have not at any time had jurisdiction in actions to recover damages for personal injuries caused by negligence, and consequently under the statute a County Court has no jurisdiction of such a case.</p>

<p>1. Peactioe—Waiver of Motion for Instruction to Find for Defendant.—A request by a defendant, made at the close of plaintiff’s evidence in chief, for an instruction to find for the defendant is waived if the defendant introduces evidence to meet that of the plaintiff, and after the evidence is closed does not renew the motion, but asks and secures instructions covering the entire, case.</p> <p>2. Railroads—Care Required of Night Watchman of Track.—There is no rule of law holding a night watchman of a railroad track to a greater degree of care for his own personal safety than is usually exercised by careful, prudent persons under the "same circumstances.</p> <p>3. Same—Running Train at Night Without Headlight.—A railroad company which runs a train at night without a lighted headlight is guilty of negligence and is responsible to persons who, while in the exercise of ordinary care, are.injured in consequence of such failure.</p> <p>4. Ordinary Care—How Shown.— In an action by the administrator of a person alleged to have been killed by the negligence of the defendant, evidence that the. deceased was a temperate, quiet, careful man, is admissible, and in the absence of evidence that the deceased had changed, justifies a jury in believing that he was in the exercise of due care for his own safety at the time of his death.</p>

<p>1. Highways—Existence of, a Mixed Question of Law and Fact.— The existence of a legal highway in a particular place is a mingled question of law and fact, and when the question arises, the jury should be instructed as to what facts establish the existence of a highway, and it is then for them to say whether such facts have been proved.</p> <p>2. Railroads—What Amounts to Obstruction of Crossing.—A car negligently allowed to remain upon the railroad track at a public crossing is an obstruction, and an averment that a railroad company carelessly and negligently placed and left one of its freight Cars upon and nearly across a public highway, and by means thereof said car was an object highly calculated to frighten teams or horses passing over said highway at said crossing, is substantially an averment of an obstruction of the highway.</p>

<p>1. Damages—For Mental Anguish.—Mental anguish and injured feelings, in no way connected with an injury to the person, and resulting from mere negligence, can not be sufficient basis for the recovery of damages.</p>

<p>Assumpsit, for breach of promise of marriage. Error to the Circuit Court of Massac County; the Hon. Alonzo K. Vickers, Judge, presiding.</p>

<p>1. Appellate Court Practice—Where the Record is Imperfect.— In this case the court finds no declaration or pleas in the record, nor any mention of them in the abstract, and hence has no means of knowing what issues were tried. Whether the action of the trial court complained of was material error or not, is held to depend largely upon the state of the pleadings, and the judgment is affirmed.</p>

<p>Separate Maintenance.—Error to the Circuit Court of Massac County; the Hon. Alonzo K. Vickers, Judge, presiding.</p>

<p>Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Franklin County; the Hon. Oliver A. Harder, Judge, presiding.</p>

<p>1. Appeals and Errors—Involving a Freehold.—A bill praying that certain deeds be canceled and set aside as a cloud on the title of the complainant, involves a freehold, and this court has no jurisdiction of an appeal from a decree granting the prayer of such a bill.</p>

<p>Transcripts, from a justice of the peace. Error to the Circuit Court of Randolph County; the Hon. George W. Wall, Judge, presiding.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Alexander County; the Hon. Joseph P. Robarts, Judge, presiding.</p>

<p>1. Contracts—Signed Under Protest—Effect of.—Where a party-ordered and a railroad company furnished cars for the shipment of stock, under a contract signed by the agent of the company, and the stock was received and shipped by the company under such contract, but another contract was presented to the shipper while he was era route with the stock, with a request that he sign it, which he did, in order to secure a right guaranteed by the original contract, but under protest, making it clear that he did not assent to its terms, it was held, that the original contract must control and that the second was not binding on the shipper.</p> <p>2. Common Carriers—What Amounts to Agreement f or Free Transportation by.—A letter from the agent of a railroad company containing the following language: “ The rate on cattle carload to New York is 31 cents. You can go via Chicago and Buffalo and stop and sell at either place or go on to New York,” gives the party to whom it is addressed a right to free transportation upon the train with the cattle.</p>

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

<p>Order of Distribution, in partition suit. Appeal from the Circuit Court of Greene County; the Hon. George W. Herdman, Judge, presiding.</p>

<p>1. Construction— Of Formal Statutory Documents—When the Court will Supply Omitted Words. —Formal statutory documents, prepared without a form for guidance by persons unskilled in technical composition, are seldom found to be models of neatness and accuracy, and in construing such documents, if a legitimate object and sense can be reasonably ascertained from what is expressed, the court will supply its appropriate expression.</p> <p>2. Schools—Petition for the Formation of a New District Held Sufficient.—A petition was presented to certain trustees of schools as follows: “ To the board of trustees of schools of * * x: We, the undersigned petitioners and legal voters residing within sections * * * and the territory contained in said four (4) sections be made in a new district No. five (5), T. 16 N., R. 11 W., and that the territory contains more than ten families and is taken part from District No. one (1) and District No. two (2) in said township and range and that there will still remain more than ten families in each of said districts Nos. one (1) and two (2).” Held, that the clause “ and the territory contained ” should be construed as if it were “ ask that the territory contained,” and that when so read the petition substantially complied with the requirements of the law as to petitions for the formation of new school districts.</p> <p>3. Same—Notice of Petition for the Formation of a New District Sustained.—A notice of the filing of a petition for the formation of a new school district addressed to the directors of district No. one, was- delivered to the president of the board of district No. two and by him filed with the clerk of the board of school trustees of the township, a considerable number, claiming to be a majority of the voters residing in district No. two, filed notice with said clerk of their opposition to the petition, a copy of which was attached to said notice, and appeared before the trustees and opposed the petition, but made no objection to the notice or the service of it. Held, that under the circumstances the notice was sufficient.</p>

<p>1. Eminent Domain—Damages to Property Not Taken.—The right to recover damages for injuries to private property occasioned by the occupation of other property for public use is secured by the Constitution of 1870. And in a suit against a railroad company, for damages caused by the construction of additional side tracks, it is immaterial whether the fee of the street is in the public or the railroad.</p> <p>2. Limitations—_4s to Damages Caused by the Construction of Mail-road Tracks.—The fact that the statute of limitations has run as to damages caused by the original construction of a railroad in a public street, does not prevent a recovery for damages caused by the construction of . additional tracks.</p>

<p>Forcible Detainer, for part of a recorder’s office. Appeal from the Circuit Qqurt qf gaqgqrqQn County; the Hon. James A. Creighton, Judge, presiding,</p>

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Instructions—The Jury Should be Instructed as to All Issues Raised by the Evidence.—The evidence in this case fairly presented the questions whether the relation between appellee and defendant in the attachment was that of debtor and creditor or principal and agent, whether the transfer to appellee was fraudulent as against appellant, and whether under all the circumstances appellee should be deemed estopped to claim the property in controversy as against appellant, and the refused instructions which advised the jury as to the legal principles applicable to these issues should have been given.</p>

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

<p>Debt, on a constable’s bond. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.</p>

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

<p>Garnishment.—Error to the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.</p>

<p>Trespass on.the Case, for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Bill, to foreclose a mortgage and cross-bill to correct a note. Appeal from the Circuit Court of Hancock County; the Hon. Charles J. Schofield, Judge, presiding.</p>

<p>1. Interest—Allowance of on Settlement of Partnership Accounts. — The general rule is that interest is not allowable on the settlement of partnership accounts, and the exception is where there has been an unreasonable delay in making settlement or improper use of the partnership funds by the partner sought to be charged.</p> <p>3. Partnership —Finding as to Certain Articles on an Accounting Sustained.—In a suit for the settlement of a partnership the original price of certain furniture and fixtures was shown, but there was no evidence of their value at the time the partnership was dissolved or the testimony taken, or that the defendant in whose possession they were left had ever used them wrongfully. Nineteen years elapsed after the articles were purchased before the masters report and final decree. Held that it might reasonably be inferred that the articles were of no value, or if of any, that it would be inequitable under the circumstances to charge it to the defendant.</p> <p>3. Costs—In Chancery Proceedings are in the Discretion of the Chancellor.—The apportionment of costs in a suit in equity is a matter within the discretion of the chancellor, and in this case, considering the fact that the litigation was caused by the fault of the appellant, and that he failed to a large extent as to his claim, the court is not prepared to say that the order in regard to costs was an abuse of that discretion.</p>

<p>Replevin. Appeal from the Circuit Court of Montgomery County; the Hon. Alexander W. Hope, Judge, presiding.</p>

<p>1. Assumpsit—For Money Had and Received—When it Will Lie.— A person who knowingly receives the proceeds of property unlawfully sold by another, may be compelled to account therefor in an action for money had and received; and it is immaterial whether he knew who was the owner, or how much was due, or whether he promised to pay the proceeds of the sale to the owner.</p> <p>2. Trials—Objections Waived.—A. person who requests that a special interrogatory be submitted to the jury, thereby admits that the question involved is properly before the jury, and can not, on appeal, be heard to object to instructions on the same question, on the ground that there is no evidence on which they can properly be based.</p>

<p>Injunction.—Appeal from the Circuit Court of Montgomery Counts-; the Hon. A. W. Hope, Judge, presiding.</p>

<p>1. Nuisances—Measure of Damages for.—If the placing of obstructions in certain channels of the stream by the defendant in this case was unlawful and caused a nuisance, the law will not regard the structure as permanent, and plaintiff can for recover only such damages as had accrued prior to the bringing of the suit.</p> <p>2. Damages—Held Excessive.—The assessment of damages in this case was for the full value of the property injured, and even if prosx>ective damages were allowable, would be unreasonable and exorbitant, as the plaintiff has not been deprived of the whole property and will not be, in any event.</p> <p>' 3. Appellate Court Practice—On Motion for Leave to File liemittitur.—A motion for leave to file a remittitur, made after final judgment in this court, comes too late and will be denied.</p>

<p>Bill, to set aside a fraudulent conveyance. Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>Replevin, by a mortgagee against a sheriff. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Eppler, Judge, presiding.</p>

<p>I. Contracts—.Zb Writing May be Changed by Subsequent Oral Agreement.—A and B entered into a written contract, by which A was employed to negotiate for a sale of certain land belonging to B at a stipulated price. By a subsequent oral agreement, terms of sale previously discussed were substituted for the cash payment implied by the writing. Held, that such substitution was legally made; that the court properly admitted proof thereof, and properly instructed the jury upon that view of the law.</p>

<p>1. Mechanic’s Liens—Application of Section 24 of the Mechanic’s Lien Act.—Section. 34 of the mechanic’s lien law applies to a public school building, erected by a board of education, as such a building is within the description of a “ public improvement,” and a school board is within the general term “ municipality.”</p> <p>3. Same—Lien Given by Section 24 of the Mechanic's Lien Act, Good Against an Assignment.—The lien created by section 34 of the mechanic’s lien act can not be deranged or displaced by an order given by the contractor on the fund, and an assignment or transfer thus attempted does not set aside the lien provided by the statute.</p> <p>3. Bonds—A Bond Given by a Building Contractor Construed.—A bond given by a building contractor was conditioned upon the performance of the contract, and all the covenants and agreements therein contained and the payment of all liens. All claims of the obligee in the bond having been discharged, it was held that sub-contractors could make no claim under it.</p>

<p>1. Measure of Damages—For Failure to Pay a Debt.—Ordinarily, if not always, the measure of damages for retaining money or failing to pay a debt, is the interest thereon. What the creditor might have made by the use of the money in trade is purely a matter of speculation and can not be regarded, and attorney’s fees are not allowable except in those special cases where the statute so provides.</p> <p>2. Interest—“ Unreasonable and Vexatious Delay.”—It is not fairly to be inferred from the declaration in this case that the defendant did more than delay payment until its liability was established by law, or that in this there was any bad faith or evil design. This is not “unreasonable or vexatious delay,” within the statute.</p> <p>3. Same—Should be Claimed in Suit for Principal.—Whatever be the right of plaintiff to interest, he should have claimed it in the suit for the principal debt, and having failed to do so no reason is perceived why he should be permitted to do so now and thus split his cause of action.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Montgomery County; the Hon. Alex. W. Hope, Judge, presiding.</p>

<p>1. Judicial Sales—Disposition of Surplus Between Judgment Creditor and Purchaser at Prior Sale.—A, being the owner of a tract of land, executed a mortgage to B, and thereafter C, D and E obtained judgments against A, which were liens on his land in the order named, O caused a.sale to be made under his judgment, and there being no redemption, he obtained a deed at the end of fifteen months. B foreclosed his mortgage, and the owner of the equity of redemption failing to redeem, D, after twelve and within fifteen months from the foreclosure sale, deposited with the sheriff the amount necessary to redeem, and a sale was had, and a sum in excess of the claims of B and D, together with interest and costs, was realized. Prior to the latter sale, E sued out an execution on his judgment and placed it in the hands of the sheriff. Held, that E was entitléd to have the surplus on said sale applied on his execution, and that 0 had no claim thereon.</p>

<p>1. Decrees—Supported by the Evidence.—After an examination of all the testimony as contained in the abstract in this case, the court can not say that the conclusion reached by the chancellor who tried the cause is incorrect, and is rather inclined to think that it is supported by the better view of the testimony, and therefore conclude that the decree should be affirmed.</p>

<p>Assumpsit, for services as an agent. Appeal from the Circuit Court "of Coles County; the Hon. Francis M. Wright, Judge, presiding.</p>

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

<p>1. Judgment—When it May Exceed Amount Indorsed on Summons. —A transcript from a justice of the peace showed the amount sued for, and that the defendant entered his appearance and waived service. Meld, that under these circumstances the summons was wholly unimportant, and the fact that the judgment was for an amount in excess of the demand indorsed on the summons did not render it erroneous.</p> <p>2. Attorneys—Must Pay Money Collected to Person for Whom, it Was Beceived.—A person who receives money as the attorney of an administrator can not set up as a defense, when sued therefor, that the money should go to the heirs, but must pay it over to the administrator, in whom the legal title vests upon the payment to the attorney.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Edgar County; the Hon. Edward P. Vail, Judge, presiding.</p>

Trespass on the Case, by a father for damage resulting from an injury to his son. Appeal from the Circuit Court of Douglas County; the Hon. Edward P. Vail, Judge, presiding.

<p>1. Medicine and Surgery—Recovery Against Osteopathist for Practicing Medicine Without a License Sustained.—The appellant was engaged in the practice of “ the profession of osteopathy," and the State Board of Health brought suit against him for practicing medicine without a license, and obtained a judgment for the statutory penalty. Held, that the proofs brought him within the provisions of the law, and that he is liable to the penalty imposed thereby for practicing medicine without a license.</p> <p>2. Practice—As to Motions to Dismiss for Want of Authority of Plaintiffs Attorney—A. motion to dismiss a suit for want of authority of plaintiff’s attorney to institute it, should be supported by affidavit or some matter of which the court should take notice, and must be preserved in a bill of exceptions if insisted on, on appeal.</p>

<p>Assumpsit, on three promissory notes. Appeal from the Circuit Court of McLean County; the Hon. Charles R, Starr, Judge, presiding.</p>

<p>■ 1. ' Set-off—Against an Assignee of a Patent.—In a suit for an accounting, by the assignee of a patent, against persons manufacturing under a former assignment alleged to have expired, the allowance of a claim against the original owner of the patent as a set-off, is held proper under the circumstances.</p> <p>2. Patents—Royalties for Articles Made, but Not Sold.—The court holds that the royalties claimed in this suit, for the use of the patent in making the articles remaining unsold, were properly left unadjusted by the court. Had the patent been used piratically a different rule might have been applied, but, under the circumstances of this case, it was proper to let an accounting for the use of the patent await a sale of the articles.</p> <p>3. Accounting—Before a Master in Chancery. —In taking an account, a master in chancery is not limited to the date of entering the decree; he can extend it down to the time of the hearing before him.</p>

<p>Mandamus and Bill for Belief.—Appeals from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>1. Corporations —Reduction of Capital Stocle of, Must be Pro Rata. —The court holds that the statute authorizing a reduction of the capital stock of a corporation requires that equality between the several stockholders should be preserved, and that to accomplish such a reduction with equality it must be made pro rata, as no other method would be fair or equitable, and therefore permissible, except by consent of those to be affected.</p>

Trespass on the Case, for injury to real estate, with count in trespass. Appeal from the Circuit Court of McDonough County; the Hon. Charles J. Scofield, Judge, presiding.

<p>1, Drainage—Effect of Abandonment of Part of a Ditch.—A ditch throughout its entire length, should be considered as one ditch, and the abandonment of material portions of it before the expiration of the twenty years necessary to give a right to its use by prescription, operates to prevent the completion of that right as to other parts of the ditch.</p>

<p>Assumpsit, on the common counts. Appeal from the Circuit Court of Douglas County; the Hon. Edward P. Vale, Judge, presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Menard County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Replevin.—Appeal from the Circuit Court of Christian County; the Hon. Robert B. Shirley, Judge, presiding.</p>

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

<p>1. Negligence—Judgment in Suit Based on, Sustained.—In a suit against a city for damages, caused by a defective sidewalk, the court holds that the case, was fairly presented to the jury on the issues made by the pleadings, and that the conclusion reached by the trial court was a fair disposition of the case.</p>

<p>Assumpsit, on an insurance policy. Appeal from the Circuit Court of McLean County; the Hon. Thos. F. Tipton, Judge, presiding.</p>

<p>1. New Trials—Reasons for Not Waived by Failure to Present on Oral Argument.—When one of the parties to a suit files with the clerk of the trial court in apt time his written motion for a new trial, he does all that the law requires him to do, to save the points mentioned therein, and the fact that some of them are not mentioned on an oral argument on such motion does not amount to a waiver.</p> <p>2. Judgment—Limited to Sum Claimed.—In suits commenced before justices of the peace, the recovery is limited to the amount of the claim indorsed on the summons, and it is error to render judgment for the plaintiff for a greater sum.</p>

<p>1. Counties—Liability of, For Board of Prisoners in County Jail.— A county is liable to its sheriff for the sustenance of a prisoner confined in its county jail under a mittimus issued.on a judgment of the Circuit Court of such county, imposing a fine against him for violating an ordinance of a village of such county.</p> <p>3. Jailers—Can Not Recover from a County, Fees for Dieting Prisoners.—A keeper of a jail, appointed by the sheriff of a county, can not recover of the county the fees of the sheriff, for keeping, dieting and discharging prisoners.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Montgomery County; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>1. Instructions—Held to Fairly Present the Issue Involved.—The court holds in this case that while some of the instructions given to the jury were not as carefully drawn as they might have been, and while one or more of the refused instructions might have been propetiy given, that on the whole, the jury were fairly instructed by the trial court and that the verdict was a reasonable determination of the issue, from a consideration of all the evidence in the record.</p> <p>2. Contracts—When Suit May be Brought for Breach of.—When a party agrees to do an act at a future day, and before the day arrives declares he will not keep his contract, the other party may act on this declaration, and bring an action for a breach of the contract before the time for its performance arrives.</p>

<p>1. Instructions.—An Instruction Properly Refused in View of the Evidence.—The instruction that1 ‘plaintiffs are bound to establish by a fair preponderance of the evidence, that they are licensed to practice law in the State of Illinois ” was properly refused, as there was evidence that plaintiffs had expended money for defendant which they were entitled to recover.</p> <p>2. Evidence—A Verdict Approved as in Accordance With.—In a suit to recover the value of legal services the court holds, in view of the evidence. that there is no merit in the contention that the judgment should be reversed for want of proper proof in the record that the plaintiffs had been licensed to practice law in this State.</p> <p>3. Practice—As to Objections to Evidence.—In a suit to recover the value of legal services the witnesses were asked what the legal services rendered were reasonably worth, to which general objections were made. Held, that the objection that the question should have been confined to asking what were the usual and customary fees for similar services should have been made specifically in the trial court, and that, this not having been done, it could not be raised on appeal.</p> <p>4. Damages. —Amount of, a Question for the Jury.—In a suit to collect attorney’s fees where no amount was agreed on by the parties when the contract of employment was made, the sum to be awarded is a question of fact for the jury and trial judge to determine, and in this case the court can not see that the amount assessed ($2,800) is so grossly excessive as to warrant a reversal of their finding in that regard.</p>

<p>1. Alimony—Effect of Being in Contempt of Decree.—A court of equity may properly deny the relief prayed for in a petition to vacate a decree for the payment of alimony until the petitioner has paid up all alimony due under such decree or by his petition has offered to show-facts that would render him unable to do so.</p> <p>2. Same—Not Changed on Account of Facts Existing when Decree was Rendered.—In the absence of fraud in procuring the decree, a court at a subsequent term is powerless to alter or modify an allowance of alimony in a decree for divorce upon the conditions existing at the time the decree was entered.</p> <p>3. Equity Pleading—Facts Constituting Fraud Should be Stated. —A petition to vacate an allowance of alimony alleged that the defendant had fraudulently concealed from the plaintiff that she had committed adultery before the decree was entered and after the marriage, but set up no facts constituting the fraudulent concealment. Held, that a demurrer to the petition was properly sustained.</p> <p>4. Bills of Review—-Ora Account of Newly-Discovered Evidence —Diligence.—A bill of review may be brought upon the discovery of new matter, but the matter must be not only new, but such that the party could not by the use of proper diligence have known of it before the former hearing, and diligence in this regard must be averred and proven before a court will vacate a decree entered at a prior term.</p>

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

<p>Assumpsit, on the common counts. Appeal from the Circuit Court of Christian County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Replevin.—Appeal from the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>I. Instructions—Error Without Injury.—It appears from the evidence that the verdict in this case is clearly right, and the court declines to disturb it merely for the reason that there is error in the instructions,.</p>

<p>Assumpsit, for taxes collected by a tax collector. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>1. Burden of Proof—Where the Execution of a Note is Denied.— In a suit on a promissory note a plea denying the execution of the note does not charge the plaintiff with the crime of forgery, and thus put upon the defendant the burden of proving that charge beyond a reasonable doubt; its only effect is to cast upon the plaintiff the burden of proving the execution of the note as at common law.</p> <p>2. Verdicts—Sustained by Evidence Should Not be Disturbed.—The trial judge and the juries before whom this case was tried, heard the witnesses testify and saw their manner upon the witness stand; their opportunity for determining the weight to be given to the testimony was greater than that possessed by this court, and as there is evidence sustaining the verdict, it should not be disturbed.</p>

<p>1. Married Wojian—Husband May Act as Wife's Agent.—A married woman, who is the owner of valuable property, has a right to use it or the income from it in the support of the family, and may properly employ her husband as her agent to manage her business without subjecting her property to the payment of his debts.</p> <p>2. Assumpsit—When Aetion for Money Had and Received Will Lie.—An action for money had and received may be maintained whenever the defendant has obtained money of the plaintiff, either directly or through an agent, which in equity and good conscience he ought not to retain. When money has been thus received, the law implies a promise to pay, notwithstanding there was no privity between the parties.</p> <p>3. Instructions—Stating Abstract Propositions—Objections Cured. —While appellee’s first instruction announces an abstract proposition of law, it proceeds without any break in the sentence to apply the law to the facts as claimed by appellee, and thus the defect, if any existed, is cured.</p>

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

<p>1. Banks and Banking—Effect of Failure by Customer to Question Correctness of Pass Book.—Where a pass book furnished by a bank to a customer is balanced, and the cheeks and book returned and no question is raised as to the correctness of the entries in such book, the silence of the customer in this regard amounts to an admission of their correctness, and so stands until overcome by evidence.</p> <p>3. Finding by the Court—Ora Conflicting Evidence.—This court holds that the finding of the court below in this case is sustained by the evidence and free from passion and prejudice, and that under the well-settled rule it is conclusive on this court.</p>

<p>Bill, to determine the title to a fund. Error to the Circuit Court of Fulton County; the Don. Jefferson Ore, Judge, presiding.</p>

<p>Petition, in probate. Appeal from the Circuit Court' of Morgan County; the Hon. Cyrus Epler, Judge, presiding.</p>

Trespass on the Case, for injury to abutting property caused by the closing of a street. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.

<p>1. Equity Practice—Objections to Jurisdiction Must be Made in the Trial Court.—If a defendant in a court of equity answers and submits to the jurisdiction of the court it is too late for him to object in a court of appeal that the complainant had an adequate remedy at law.</p> <p>2. Agency—An Agent Can Not Act for Both Parties to a Contract. —A contract made by one who acts as the agent of both parties, may be avoided by either principal, and such cases do not turn upon the point whether there was an intention to cheat or whether the complaining party has suffered an injury; the law declares the transaction fraudulent upon grounds of public policy.</p>

<p>1. Negligence—Finding as to Approved.—The evidence in this case shows a clear case of negligence on the part of appellant, and the court is not able to say that the jury were wrong in finding appellee not guilty of contributory negligence.</p> <p>2. Executions—Award of, Against Municipal Corporations Not Reversible Error. —It is error to award executions against a city, but such error will not deprive the plaintiff of the benefit of his judgment, as a court of review will order the necessary corrections and direct the court below to amend its record accordingly.</p>

Mandamus, against a board of supervisors to compel an appropriation in aid of the construction of a bridge. Error to the Circuit Court of Moultrie County; the Hon. Edward P. Yail, Judge, presiding.

<p>1. Insurance—Waiver of Forfeiture Clauses by Course of Dealing. —Where an insurance company, in its course of dealing with an insured, leads him to a reasonable belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as a defense in a suit upon the policy.</p> <p>2. Same—Waiver of Forfeiture Clauses by Levying Assessments.— If an insurance society, after learning that one of its members is delinquent in the payment of assessments which have been made against him, levies upon him another assessment, for a subsequent period, it thereby recognizes the continued existence of his membership, and waives its right to declare the contract forfeited for such delinquency.</p> <p>3. Evidence—Effect of Objections to.—The defendant in a suit upon a policy of insurance produced a witness who testified that the deceased had expressed an intention to let his insurance lapse, and thereupon plaintiff offered to show that deceased was insane at the time the statement was made, but was not allowed to do so, the defendant interposing an objection. Held, on appeal, that if deceased was insane at the time, the making of such remark could have no bearing, and that defendant having presented a showing to that effect, could claim no benefit from the remark.</p>

<p>I. Intoxicating Liquors—A Saloon Keeper is Not Liable to a Purchaser of Liquor for Injuries Received by Him, While Intoxicated.—One who was an active and willing agent in procuring his own intoxication, can not recover upon a saloon keeper’s bond for injuries caused by such intoxication. The statute was only intended to cover cases where innocent parties have been injured by the wrongful act of the principal in the bond.</p>

<p>1. Notice—By Facts to Put a Party on Inquiry.—In a suit against a purchaser of personal property by the holder of an unrecorded lien, it is not necessary to show that the purchaser had actual knowledge of the vendor’s intention to defraud. If the circumstances surrounding the transaction are such as to put a prudent and cautious man upon inquiry, and the purchaser closes his eyes against those lights which, if pursued, would disclose the fraudulent purpose of his vendor, he must suSer the consequences as though he had received actual notice.</p>

<p>1. Special Findings-Jfusi Relate to Ultimate Facts.—Special findings must relate to ultimate facts, which are controlling in their character, and although a finding may be very important as tending to prove an ultimate fact, yet if it is not in and of itself a controlling one in the case, it is not sufficient to support a judgment as a against a general verdict.</p> <p>2. Same—As to Merely-Evidentiary Facts Should he Ignored.—Interrogatories calling for special findings upon merely evidentiary facts should be refused, and if given and answered, the answer should be ignored on a motion for judgment.</p> <p>3. Same—When They Will Control the General Verdict.—All reasonable presumptions will be entertained in favor of a general verdict as against a special finding, and before a special finding can be allowed to control the general verdict there must be such antagonism between them that it could not be removed by any evidence admissible under the issues tried by the jury. The trial court should look not to the evidence heard, but to what could have been heard under the issues.</p>

<p>Assumpsit, for assessments due an insurance society. Appeal from the Circuit Court of Coles County; the Hon. Frangís M. Wright, Judge, presiding.</p>

<p>Claims in Probate.—Error to the Circuit Court of Adams County; the Hon. Oscar P. Bonnet, Judge, presiding.</p>

<p>Debt, on the bond of an executrix. Appeal from the Circuit Court of Montgomery County; the Hon. Jacob Fouke, Judge, presiding.</p>

<p>Trespass on the Case, against a common carrier for damage to freight. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>1. Appellate Court Practice— When the Court is Evenly Divided. — When only two of the judges of this court take part in the consideration of a case and are divided in opinion as to whether the judgment should be affirmed or reversed, it must be affirmed.</p>

<p>1. Appellate Court Practice—Appellees Must File Briefs.—The court does not feel disposed to investigate and pass upon the question of law presented in this case, in absence of a brief for appellee, and therefore reverses the judgment and remands the cause for another trial under the provisions of Rule 27.</p>

Trespass on the Case, for injuries to means of support caused by the sale of intoxicating liquors. Appeal trom the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.

<p>1. Estoppel—Statements in a Debtor's Schedule.—A, having secured a judgment against B, caused an execution to be issued and levied upon a piano in B’s possession. B thereupon made a- schedule under the exemption law, including, among other property, “one piano, title in Aurora Piano Co.” The piano company having been defeated in a replevin suit against the officer, B claimed the piano, and on a trial of the right of property it was held that his statement in the schedule as to the title to the property did not operate to estop him from setting up any claim he might have.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Ogle County; the Hon. John C. Garter, Judge, presiding.</p>

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

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

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

<p>Debt, for a penalty. Error to the Circuit Court of Bureau County; the Hon. Dorrance Dibell, Judge, presiding.</p>

Assumpsit, against a railroad company for money expended in building a bridge. Appeal from the Circuit Court of Knox County; the Hon. Henry B. Willis, Judge, presiding.

<p>1. Negligence—Not Established by the Evidence.—From a careful consideration of all the evidence in this case, giving the plaintiff the benefit of all legitimate inferences to be drawn therefrom, the court holds that appellee has not made out a case of negligence against appellant, and that the motion to exclude the evidence and direct a verdict for the defendant should have been allowed.</p> <p>2. Evidence—As to the Possibility of Preventing an Accident.—In a suit against a coal company for injuries caused by falling stones, evidence of experts to show that there is no method known to miners whereby the danger arising from falling stones can be entirely obviated, is proper.</p>

<p>Replevin.—Appeal from the County Court of DeKalb County; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>Assumpsit, for services. Error to the Circuit Court of Bureau County; the Hon. Dorrance Dibell, Judge, presiding.</p>

Trespass on the Case, for injuries to property caused by an excavation and change of grade in a street. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.

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

<p>1. Administration of Estates—Jurisdiction of Courts of Equity.— A court of equity will not take jurisdiction of the administration of estates, except in extraordinary cases, when some special reason is shown to exist why the administration should be withdrawn from the County Court.</p> <p>2. Same—Interference of Equity Held to be Umuarranted Under the Circumstances.—A will directed the administrator with the will annexed to sell the testator’s real estate, and distribute the proceeds among his three children, and a codicil revoked the devise to one of the children, but made no provision for the disposition of his share. A bill was filed asking to have the will and codicil construed and carried into effect. Held, that the County Court had plenary power to construe the will and order a distribution of the proceeds of a sale of the real estate, and that the Circuit Court might review its order on appeal, but that it ought not to entertain a bill in equity in the first instance.</p>

Petition, by an administrator for approval of final report and for a discharge. Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding.

<p>Replevin, by a mortgagor against a mortgagee. Appeal ..from the Circuit Court of Mercer County; the Hon. Hiram Bigelow, Judge, presiding.</p>

<p>1. Warranties—When Implied.—One who manufactures an implement, names it a potato digger, and sells it to another, impliedly warrants that it will dig potatoes and place them on top of the ground ready to be picked up.</p> <p>2. Evidence—Exclusion of, Not Ground for Reversal, When Fad is Shown by Other Evidence.—A judgment which does substantial justice will not be reversed on account of the exclusion of a letter, when all that it would have proved is fully shown by other evidence which was admitted.</p>

<p>Assumpsit, for the purchase price of a lot. Appeal from the County Court of Peoria County; the Hon. RobertH. Lovett, Judge, presiding.</p>

<p>1. Pleading—Order of.—The statement of the plaintiff’s cause of action must precede the statement of the defendant’s defense to such cause of action, and no plea or notice of set-off under it can properly be filed by a defendant prior to the filing of the declaration, and if filed, should be stricken.</p> <p>2. Same—Notice of Set-off.—The statute giving a defendant the right to give notice of set-off instead of pleading the same, only allows such notice “ under the general issue or under the plea of payment.” and where there is no plea of payment, and the general issue having been improperly pleaded is stricken from the files, there is nothing to support the notice and it may also be stricken.</p> <p>8. Same—Plaintiff Can Not be Compelled to Pile Declaration.—There is no authorized practice by which a plaintiff can be forced to file a declaration if he chooses to abandon his case. A court of law has no jurisdiction to grant specific performance of a contract to institute and prosecute a suit to trial,</p> <p>4. Same—Notice of Set-off Does Not Amount to a Plea.—It may be that if defendant had filed a plea of set-off, it would have been within the power of the court to compel an issue to be made on such plea and to give a trial thereunder, though no declaration in the original action had been filed; but the notice filed in this case was not in any respect a plea of set-off, and the court is not called upon to decide what authority the trial court would have had if such a plea had been filed.</p>

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

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

<p>1. Sales—A Contract of Sale Construed Not to Warrant Goods Sold to be Merchantable.—A contract called for ‘‘one hundred cords of good second-growth oak wood, dry, to be delivered in Rockford during the month of October, 1895, at $4.50 per cord.” In a suit by the vendee to recover for a breach of the contract, the court discusses the circumstances of the case, and holds that the contract, construed in the light cf the acts of the vendee’s agents, did not mean and was not intended to mean that the wood should be merchantable in Rockford.</p> <p>3. Contracts—A Contract Construed.—The court holds that the contract mentioned in note one did not mean that the vendor was to deliver wood worth $4.50 per cord, but that wood filling the description given was to be received by the vendee at $4.50 per cord, as payment upon the debt in said contract described.</p>

<p>1. Administration of Estates—Imperfect Inventories.—An administrator filed an inventory, showing among other assets a note signed by himself valued at “ $3,900, less payments.” Held, that the heirs might have obtained from the County Court an order for a more perfect inventory showing the precise amounts claimed to have been paid on the note, but that having failed to do so, they could not insist on having the administrator charged with the face of the note regardless of payments, merely because of the admission contained in said inventory.</p> <p>2. Same—Uncredited Payments on a Note Can Not be Allowed as a Claim Against an Estate.—An administrator filed a partial report in which he charged himself with the amount due on a note after deducting certain alleged payments which were not indorsed on the note. An heir objected to the final report, claiming that the administrator should have filed his claim against the estate and had a special administrator appointed to defend, and that until a claim for the payments was so allowed he could not take credit therefor. Held, that payments to the deceased on a debt could not constitute a claim against her estate, and that the objection was not well taken.</p> <p>3. Same—Appointment of Administrator Pro Tern.—Duty of Court as to Reports.— Every time an administrator presents a report, it is possible that some one might advantageously resist its approval in the interest of the heirs and creditors, but the law has not provided for the appointment of an- administrator pro tern, for such purposes, but has made it the duty of the county judge to scrutinize such matters, ascertain the facts and protect the interest of all.</p> <p>4. Samé—Jurisdiction of County Court—Effect of Approval of Partial Report.—An administrator presented a partial report, in which he charged himself with the balance due on a note after deducting certain alleged payments not credited on the note, and the report was approved. On an appeal from an order approving a final report, it was held that the County Court had jurisdiction to hear and determine the matters presented by the administrator’s first report; that its adjudication as to the amount due to the estate was prima facie■ correct, and that unless an heir assailing its correctness showed by a preponderance of the evidence that the item in the first report as to the amount due on the note was incorrect, the judgment approving such report must stand.</p> <p>5. Same—Presumptions in Favor of Rulings of County Court.—The court must assume, where nothing appears to the contrary, that a county court performed its duty in passing on the report of an administrator;' that it heard only competent testimony, and that a fact found by it was established by proper proof.</p> <p>6. Appeals and Errors—An Appellant Can Not Complain of His Own Questions.—An appellant can not complain of questions he himself puts, nor the answers thereto, and whether such questions were proper cross-examination, or whether the appellant made the witness his own upon the subject, is immaterial.</p>

<p>1. Appeals and Errors—Alleged Errors Not Indudedin Assignment Not Considered.—An assignment of errors is the pleading of the appellant or plaintiff in error, and he can not be heard on appeal, on any supposed errors in the record, not included in his assignment.</p> <p>3. Equity—Wlienit Will Enjoin a Trespass.—A court of equity will not interfere to prevent a trespass unless facts and circumstances are alleged from which it may be seen that irreparable injury will be the result of the act complained of, and that there is no adequate remedy at law.</p> <p>8. Same—Jurisdiction of, to Prevent a Multiplicity of Suits.—To warrant the interference of equity to prevent a multiplicity of suits, there must be different persons assailing the same right, and not a mere repetition of the same trespass by the same person.</p>

<p>1. Equity Practice—Exceptions to a Master's Report Need Not Recite the Evidence.—Exceptions to a master’s report need not set out the dence relied on, but will be held sufficient if they distinctly point out the specific matter of objection.</p> <p>2'. Same—Priority of Liens May be Adjusted on Foreclosure, Although no Cross-bills are Filed.—Where a cross-bill filed by one of the parties to a suit to enforce a mechanic’s lien, asks a sale of the property to pay a mortgage held by him, it is proper for the court to determine the priority of the liens upon the property and to decree their payment in the proper order, without any cross-bills by other lienholders, as a necessary incident to the relief sought by the mortgagee.</p> <p>3. Same—Dismissal of Original Bill Held Not to Carry Answer with it, Where Cross-Bills Have Been Filed.—A filed a bill against B and others to enforce a mechanic’s lien; B answered claiming a prior lien, and O and D filed cross-bills setting up claims against the property. On a hearing the original bill was dismissed, and O, B and D were held to be entitled Jo liens in the order named, D appealed, claiming that the dismissal of the original bill carried B’s answer with it, and that there was no pleading to support the decree in his favor. Held, that the position was not well taken.</p> <p>4. Same—Leave to File Cross-bill Not Necessary Where Defendant has Answered.—A defendant who has answered requires no leave to file a cross-bill, but may do so even after the cause has been referred to che master.</p> <p>5. Appellate Court Practice—Errors Not Argued Deemed Waived. —In order to properly present assignments of error, a plaintiff in error must argue them in his opening brief, setting forth the points, reasons and authorities he relies upon to sustain them so as to give the defendant in error a fair opportunity to know his position and to reply thereto, and all errors not so argued will be regarded as waived.</p> <p>6. Same—An Alleged Error, Not Argued, Held Waived.—A plaintiff in error in his opening brief copied an exception to a master's report, an order denying a motion to strike certain evidence from the report, and his exception to such order, but did not state any reasons why the evidence should not have been considered, and cited no authority to support the exception. Held, that the alleged error was not properly presented, and that it must be treated as waived and an argument in its support in a reply brief disregarded.</p> <p>7. Same—An Alleged Error, Not Argued, Held Waived.—A plaintiff in error in his opening brief stated that he excepted to the action of the court in excluding from a decree of foreclosure certain dues allowed by the master in his favor, and that such action was error, “when the mortgage and bond in terms secured the dues.” This was all that was said on the subject, and the court was left to search the mortgage and bond to ascertain what provision was relied upon, and to search the abstract for the ruling complained of. Held, that as the attention of the court was not called to the facts in evidence upon which the question arose, nor to the reasons which would make the ruling erroneous, the alleged error should be treated as waived.</p> <p>8. Mortgages—Effect of Notice of the Existence of.—Priority among mortgagees depends not only upon the date of the recording of their mortgages, but also upon the knowledge they have of the true state of facts as to the title, and of the rights and equities of those who have not fixed their priority by recording their mortgages, and a subsequent mortgagee who has notice of a prior unrecorded mortgage is affected by his knowledge of it in the same way a prior record of the mortgage would affect him.</p> <p>9. Agency—The Relation Held to Exist.—The court reviews the evidence, and concludes that the person who acted for the plaintiff in error in the negotiation of the loan held by it, was the agent of the plaintiff in error for the purposes of said loan, and that notice to him of a prior unrecorded mortgage was notice to the plaintiff in]error.</p> <p>" 10. ' Same—An Undiscovered Principal Bound.—A contract of an agent binds his principal, though the fact of the agency and the name of the principal are not disclosed until after the contract is ma'de.</p> <p>11. Pleadings—Notice of Lien May be Proved Under Pleading Claiming Priority.—One of the parties to a suit to enforce a mechanic’s lien, in his answers to the original bill and to a cross-bill filed by a mortgagee, and in a cross-bill of his own, claimed that he had a prior lien to every one else. On the trial he introduced a mortgage executed before, but recorded after the lien of the other mortgage attached to the property, and also evidence to show that the mortgagee therein had notice of his rights. Held, that the fact that such notice was not pleaded furnished no ground of complaint, and that it could properly be proved in support of the claim of priority.</p> <p>12. Equity Pleading—An Answer to a Cross-bill May Refer to the Answer to the Original Bill Although Such Bill is Dismissed.—A reference in an answer to a cross-bill, to matters stated in an answer to the original bill, permits a reference to such answer for the purpose of supporting a decree sustaining a mechanic’s lien set up in the answer to the cross-bill, although the original bill is dismissed at the hearing.</p> <p>13. Mechanic’s Liens—Will Attach to an Equitable Interest, and to an After-acquired Legal Title. —A person holding a contract with the owner of real estate for a warranty deed may subject his interest to a mechanic’s lien, and upon the vendee acquiring legal title during the progress of the work the lien attaches to the entire title so vested in him.</p> <p>14. Same—A Contract Made by a Husband Held Binding on His Wife. —In a suit to enforce a mechanic’s lien against property belonging to a wife, where the contract was made by her husband, the court reviews the evidence, and holds that the contract was binding on the wife.</p> <p>15. Same—Naming Third Persons as Debtors with the Owner of the Property.—The fact that a person claiming a mechanic’s lien, in the statement filed as required by law, named other persons with the owner of the property as the persons from whom his demand is due, does not invalidate the statement nor defeat the lien.</p> <p>16. Same—A Lien Held to Have Priority Over a Mortgage Under Act in Force in 1893.—Under'Sec. 17 of the mechanic’s lien act, in force in 1893, the mortgage of plaintiff in error could not operate upon the buildings erected or materials furnished in this case until the lien in favor of the person doing the work or furnishing the materials was satisfied.</p>

<p>1. Evidence—Degree of Proof Required in Civil Cases.—In a civil case the party upon whom the burden of proving the affirmative of an issue is cast, is only required to establish it by a preponderance of the evidence. It is sufficient if the weight of evidence inclines to his side, and an instruction requiring a “clear preponderance” is erroneous.</p> <p>2. Costs—Of an Additional Abstract.— If there are material defects in an abstract, either of omission or misstatement, it is proper for the opposite party to file a short additional abstract, supplying the omissions and correcting the misstatements, but such defects do not justify the preparation of a new and substantially complete abstract at the cost of the appellant or plaintiff in error.</p>

<p>Bill, to vacate a decree. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Appeals and Errors—In Criminal Cases.—A writ of error is the only mode provided by law by which the judgment of the trial court, in a criminal case, can be reviewed.</p> <p>2. Same—Errors Waived by an Argument upon the Merits.—An argument by an appellee upon their merits, of the errors assigned upon the record in a criminal case, is equivalent to a formal joinder in error, and where such an argument is made, the court may disregard an irregular attempt to bring the case up by appeal and may treat it as pending upon a writ of error.</p> <p>3. Cruelty to Animals—Failure to Provide Proper Food and Shelter.—A defendant can not be convicted of a charge of cruelty in unlawfully killing an animal by failing to provide it with proper shelter, where the proof shows he killed it with a blow from a sledge hammer as an act of mercy.</p> <p>4, Same—The Word “ Unnecessarily" in Counts on Failure to Provide Food and Shelter.—The word “ unnecessarily ” is a material part of the third clause of Sec. 50 of the Criminal Code, which provides that one may be guilty of cruelty to animals “ by unnecessarily failing to provide any animal in his charge * * * with proper food, drink and shelter; ” and a count drawn under that clause which does not contain that word or an equivalent thereto should be quashed on motion.</p>

<p>1. Verdicts—Not Manifestly Wrong.—This court can not say from the evidence in this case that the jury should have reached a different conclusion, and that their determination of the disputed questions of fact was manifestly wrong, and it must stand.</p> <p>2. Appeals and Errors—Damages on Affirmance.—This court is of the opinion, from a consideration of the voluminous abstract and careful brief filed in behalf of appellant, that this case has been contested in good faith in this court and not for delay, and that the motion for ten per cent damages should be denied.</p>

<p>Assumpsit, on a note. " Appeal from the Circuit Court of Putnam County; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>Assumpsit, on fire1 insurance policies. Appeals from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Chattel Mortgages—Provisions of the Statute in Regard to Extension Construed,—The statute in regard to the extension of chattel mortgages' does not require that the mortgagor shall file one affidavit and the mortgagee another, nor are they required to attend personally to the filing of the affidavit but may appoint Some person who shall act as , the agent or attorney of both parties in the matter. All that is required is an affidavit setting forth particularly the interest the mortgagee has by virtue of such mortgage in the property mentioned therein; the amount of money remaining unpaid thereon; the fact that the mortgage debt has been extended; and the time when it will become due by the extension.</p> <p>2. Same—Attempted Extension of a Chattel Mortgage Held Effectual. — In a suit turning upon the validity of an attempted extension of a chattel mortgage the evidence showed the execution and recording of a complete affidavit containing all that the statute required, sworn to by the mortgagor, coupled with and attached to a written document signed by the agent of the mortgagee setting forth the same facts and extension. Held that the papers taken together constituted a substantial compliance with the statute, and that the mortgage was duly and legally extended.</p> <p>3. Appellate Court Practice—Errors Must he Insisted on in Opening Brief.—An error not argued in the opening brief must be considered as waived although properly included in the assignment of errors.</p>

<p>1. Sales—Whether Fraudulent per se Where Possession is Betained by Former Owner—Notice.—A sold certain property to B, who being unable to pay for it, resold it to A, but retained possession under a contract providing for its sale upon commission. In a suit between A' and an officer, holding an execution against B, it was held that under the circumstances, so far as they appeared from the evidence, actual notice to B’s creditors was as effectual to apprise them of A’s right as a change of possession would have been, and that- the sale was not fraudulent per se.</p>

<p>1. Promissory Notes—An Instrument Held to be a Valid Promissory Note.—The following instrument is not testamentary in its character, but is a valid promissory note:</p> <p>$7,000. Dover, III., Dec. 9, 1887.</p> <p>In consideration of a desire to aid the cause of Christian education, and the privilege of sending one student four years free of tuition, I promise to pay to the order of the treasurer of Western College, of Toledo, Iowa, for the erection of the ladies’ boarding hall of said college, on or before the first day of Dec., 1910, the sum of seven thousand dollars without interest. Provided, that in the event' of my death before the maturity of this note, it shall become then due.</p> <p>P. O. Dover, county, Bureau, State, 111.</p> <p>Mary Beatty.</p> <p>2. Consideration—A. Subscription to a School Held Binding.—A note contained a promise to pay a certain sum to the treasurer of a college for the erection of the ladies’ boarding hall of said college, and in consideration- of a desire to aid the cause of Christian education. In a suit on the note, it was proved that the hall mentioned was built upon the faith of the promise contained in the note. Held, that the note was supported by a sufficient consideration.</p> <p>3. Gifts—Title to Certain Funds Held Vested in Donee.—In a suit on a note, the amount mentioned in the instrument set out below, and unpaid annuities accruing under its terms, were claimed as a set-off. Held, that the title to the said amount was effectually vested in the college mentioned in said instrument, and that only the unpaid annuities could be set off against the note.</p> <p>The instrument was as follows:</p> <p>Certificate.</p> <p>In consideration of the agreement on the part of Western College, of Toledo, Iowa, that it will keep up and maintain its college, and increase its facilities for a Christian education; and in further consideration of the payment to Mrs. Mary Beatty of one hundred eighty-seven and 50-100 dollars, each and every year of her natural life, the first payment to be made one year from the date hereof; the said Mrs. Mary Beatty has deposited with the said Western College, the sum of twenty-five hundred dollars, for the benefit of, and to become and be the property of said Western College, and to be used as the board of trustees or executive committee thereof may direct.</p> <p>Witness my hand, this 6th day of August, 1889.</p> <p>$187.50. L. H. Bufkin, Treasurer. •</p>

<p>1. Amendments—Of the Records of a Case Not Pending Before the Court.—A court has no power to make an order in a case, allowing an amendment of the record in another case not pending before it. The propriety of allowing the proposed amendment can only arise on motion made in the cause to which the record sought to be amended belongs, after notice to the party whose rights are to be affected.</p> <p>3. Propositions op Law —Held Inapplicable and Properly Refused, —This court decides that the trial court properly refused to hold the propositions of law presented by appellant, as such propositions had no application to the issue on which the case was disposed of.</p> <p>3. Garnishment—When it May Issue.—To warrant the issuing of garnishee process, there must be a return upon an execution against the judgment debtor, stating either in terms or in substance that no property is found.</p>

<p>1. Judgments—Against Deceased Persons Not Void as to Co-defendants.—A judgment by confession against two persons, one of whom was dead at the time the judgment was entered, is not void as to the living defendant, but merely voidable, and can not be attacked collaterally.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. Hiram Bigelow, Judge, presiding.</p>

<p>Petition, for order of distribution in attachment proceedings. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Pleading—Pleading to the Merits Waives a Demurrer.—By abandoning a demurrer and pleading to the declaration a defendant admits its sufficiency and can not afterward be heard to assign the decision upon the demurrer as error.</p> <p>2. Evidence—Gertain Evidence Held Not Admissible Under the Pleadings.—In a suit against a railroad company for causing the death of the plaintiff’s intestate, the court admitted evidence to show that prior to the accident the railroad had erected and maintained an electric alarm bell, which, according to the fair inference from the evidence, the deceased before that time knew, and that, on the day of the accident, the bell had been cut out so that- it was not in operation at the time of the injury. No count in the declaration referred to the bell as having been taken out. Held, that in the condition of the declaration it was error to admit the evidence.</p> <p>3. Railroads—Speed of Trains as Negligence.—In a suit against a railroad company charging negligence in running a train at a high rate of speed, the court holds that the trial court erred in refusing to instruct the jury that there was no law limiting the rate of speed of railroad trains under the circumstances shown.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of La Salle County; the Hon. Geo. W. Stiff, Judge, presiding.</p>

<p>Confession in Vacation.—Appeal from the Circuit Court of Winnebago County; the Hon. John D. Crabtree, Judge, presiding.</p>

<p>Replevin, against a constable. Appeal from the Circuit Court of Winnebago County; the Hon. John D. Crabtree, Judge, presiding.</p>

<p>1. Negligence—A Charge of, Held Not Supported by the Evidence. —This court finds that the appellant was not guilty of the negligence charged, that appellee’s intestate was not in the exercise of ordinary care for his own safety at the time he was killed, and that the trial court should have directed the jury to return a verdict for appellant.</p>

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

Assumpsit, for the price of publishing a list of nominations for office. Appeal from the County Court of Rock Island County; the Hon. Hiram Bigelow, Judge, presiding.

<p>1. Verdicts—Against the Weight of the Evidence.—This court is of the opinion that the verdict in this case is against the weight of the evidence, and hence the judgment must be reversed and the cause remanded.</p> <p>2. Contracts—A Contract Construed.—The court holds that the contract set out in the opinion in this case providing for the employment of appellee in the factory of appellant, while the same should remain in operation, was not abrogated by a temporary suspension, and that appellant was only to be released therefrom by a permanent cessation of business.</p> <p>3. Master and Servant— Wrongful Discharge—Servant May Treat Contract as Continuing and Sue for Wages.—A servant who is wrongfully discharged before the expiration of his term of service is not compelled to sue for a breach of the contract, but may treat it as continuing in force and recover wages as they fall due.</p>

<p>Bill for Partition.—Appeal from the Circuit Court of Mercer County; the Hon. Hiram Bigelow, Judge, presiding.</p>

<p>Distress for Bent.—Appeal from the County Court of Will County; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>1. Verdicts—Not Supported by the Evidence.—The court holds that the burden was upon the plaintiffs in this case to show the fair, reasonable and customary price or value of the printing for which they sought to recover, in the place where it was performed; that the statement by one of the plaintiffs that “ we charge ten cents a line; and in this place, the common price is ten cents a line ” was not sufficient, and that the verdict is not supported by the evidence.</p>

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

<p>1. Practice—Pleas Denyiny the Delivery of a Written Instrument Should be Verified.—As the delivery of an instrument is an essential part of its execution, and as without plea verified by affidavit evidence can not be introduced tending to disprove the execution of a written instrument, it is not error to sustain a demurrer to pleas which deny the delivery of such an instrument, or assert that the delivery was wrongful, but which are not verified by affidavit.</p> <p>2. Written Instruments—Caro Not be Varied by Parol Evidence at Law—W7iera Equity May Interfere.—If by reason of fraud, accident or mistake any of the material terms of a contract be omitted from a written instrument, equity may reform it, but the relief can be had in that forum alone, and a plea alleging that a written contract does not contain all the terms of the -agreement actually made between The parties, does not set up a good defense at law to a suit on such contract.</p>

<p>Assumpsit, for commissions. Appeal from the Circuit Court of Kankakee County"; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Verdicts—Upon Conflicting Evidence.—The testimony of the witnesses in this case was conflicting and contradictory, and this court does not feel warranted in saying that the jury and the trial judge have made any mistake in their verdict and judgment.</p>

<p>1. Voluntary Assignments—Liability of the Assignee.—If an assignee has acted with good faith, exercised fair discretion, and dealt in the same manner he would ordinarily do in regard to his own property, and has managed the trust property with reasonable diligence, he ought not to be subject to losses occurring in the management of the property, or be made responsible for a mistake in judgment.</p> <p>2. Same—An Assignee Held Not Liable for Losses.—The court is of the opinion that the evidence in this case furnishes no basis for impeaching the acts of the assignee for fraud or bad faith, and finds that he has exercised fair discretion, and has acted in the same way that an ordinary person would do in regard to his own property; that in all things in relation to the trust property he has used reasonable diligence, and that he ought not to be held responsible for losses occurring in the management of such property.</p> <p>3. Same—Assignees Should Defend Against Suits.—It is the duty of an assignee to defend the property of the estate in case any suit is brought respecting it, whether such property be real or personal, and to give notice of such suit to his cestui que trust, if it may be useful and practicable.</p> <p>4. Same—When Assignee Should be Charged with Interest.—If an assignee makes interest on the funds in his hands, he should be chargeable with the payment of interest, but the evidence should affirmatively show the amount with which he is to be charged, or the time for which he is liable ought to appear, to furnish a proper basis for computation.</p> <p>5. Same—An Assignee Held Not Personally Liable for the Costs of a Suit.—The order against appellee for costs is uncertain, and should be modified so as to direct the costs to be paid from funds in his hands as assignee, as no reason is perceived’why he should be adjudged to pay the costs personally.</p>

<p>Divorce.—Appeal from the Circuit Court of Cook County; the Hon, Lorin C. Collins, Judge, presiding.</p>

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

<p>1. Creditors’ Bilis—Attacking Fraudulent Transfers of Personal Property.—Under Sec. 49, Chap. 23, R. S., which is but affirmative of the old law, the right of a judgment creditor to file a bill to subject to sale, personal .property which has been transferred in fraud of the rights of creditors, can hardly be questioned.</p> <p>3. Same—Right of ^Creditor to Levy on Property Not Necessarily an Objection to.—Where a creditor has fraudulently conveyed his personal property without consideration, and to defraud his creditors, the sale may be impeached and relief granted by a court of equity, as the remedy at law by a sale of the property on execution is inadequate.</p> <p>3. Partnership—Marshaling Assets.—The rule of equity as to marshaling assets, to pay partnership debts with partnership assets, and individual debts with individual assets, is based on the equity of a partner that his property shall not be applied to the payment of the debt of anybody else, whether partner or stranger, and when both partners are debtors neither of them has any such equity.</p> <p>4. Same—Ju/risdiction of Equity over Suits Against Representatives of a Deceased Partner.—The jurisdiction of courts of equity over suits against the representatives of deceased partners is not affected by the statutory jurisdiction of the Probate Court.</p> <p>5. Receivers—Appointment of, Without Notice.—Where the property sought to be reached by a creditors bill was of a kind easily put out of reach, and where, had an injunction been issued, it would have been very difficult to prove a breach, had one been committed, the court holds that the only way to make sure that the complainant, if entitled to relief, would get it, was to put the source of relief into the custody of the law, and approves the appointment of a receiver, without notice, under the particular circumstances.</p>

<p>1. Appellate Court Practioe—Failure of an Appellee to File Briefs as Ground for Reversal.—For a failure by an appellee to file briefs, the Appellate Courts in some of the districts will sometimes reverse judgments. This, however, is done Under rules, and there is no such rule in this (the first) district.</p> <p>3. Negligence—Verdict as to, Sustained.—A carpenter built a scaffold at the side of a house, but did not brace the supports, and while another carpenter was at work upon it, it fell and he was injured. In a suit to recover damages for the injuries received, it was shown that the fact that the scaffold was not braced was as obvious to the plaintiff as to the defendant; and that both were carpenters, and, presumably, equally capable of judging as to its sufficiency. Held, on appeal, that a verdict in favor of the defendant was right on the facts.</p> <p>3. New Trials—On Account of the Inability of a Party toAttendthe Trial. —Where, by a succession of misfortunes, a party was prevented from attending the trial of his case, it was held, that if upon a proper showing his testimony would have put a different light upon the facts, he would have been entitled to a new trial, and that no such showing having been made, a new trial was properly refused.</p>

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

<p>1. Husband and Wife—Liability of Wife for House Rent.—In a suit against a wife for the rent of a dwelling house leased by her husband, it was shown that the wife occupied the premises, or a part thereof, from the beginning of the lease until some time in the last month of the term. Held, on appeal, that the trial court properly refused to hold the following proposition of law; “ If any portion of the premises described in the lease introduced in this cause was sublet by the tenant to any other person than his wife, - - * and were occupied by such person, then the defendant is not liable in this cause.”</p> <p>2. Same—The Husband Not a Necessary Party in a Suit for Family Expenses.—The liability of a wife for family expenses is several as well as joint, and it is not necessary to a recovery against her that there should also be a recovery against her husband, and if there is no judgment against him in a suit before a justice, it is not necessary that he should be a party on appeal</p>