Volume 72 — Illinois Appellate Court Reports

Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding., Heard in this court at the March term, 1897. Reversed and remanded. Opinion filed June 14, 1897.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Fablin Q. Ball, Judge, presiding. Heard in this court at the March term, 1897. Reversed and remanded. Opinion filed July 15, 1897. Rehearing allowed and cause reheard at the October term, 1897. Reversed and remanded. Opinion filed December 16, 1897.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1897. Reversed and remanded. Opinion filed August 5, 1897.

<p>1, Courts—The Statute in Regard to Place of Meeting Construed.— What is meant by the statute in regard to the places in which the courts of the various counties of the State shall meet, is that said courts shall be held in the public court house or public court houses provided by the authorities for the holding of court, and commonly known and designated as the place or places set apart for such purpose; and the practice prevailing in Cook county of transacting a part of the business of the civil courts in what is known as the Criminal Court building ” is perfectly legal and proper.</p> <p>2. Injunctions—Power to Approve Bond Can Not be Delegated.— The statute plainly requires that in all cases in which bonds are required as a condition precedent to theissuing of a writ of injunction, the surety shall be approved by the court, judge or master granting or ordering the injunction, and this duty can not be delegated to the clerk. And where the court orders that a bond be given, a bond approved by the clerk is not sufficient to support the injunction and it will be set aside on appeal.</p>

Bill, for the dissolution of a corporation and for a receiver. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897.

Transcript, from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897.

Trespass on the Case, for personal injuries. Appeal from the Superior Court o'f Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897.

<p>Replevin.—Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897.</p>

Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1897. Reversed and remanded. Opinion filed October 11, 1897.

Assumpsit, on a written contract as modified by parol. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897.

<p>Assumpsit, on an order. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897.</p>

Transcript, from a justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the March term, 1897. Appeal dismissed. Opinion filed October 21, 1897.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1897^, Reversed and remanded. Opinion filed October 21, 1897.

<p>1. Creditor’s Bills—Character of Return of Execution Necessary to Sustain.—Where a sheriff has taken all proper steps to collect an execution, has made demand without result, and has been unable to find property to levy upon, he may take the responsibility of returning the execution before the expiration of the ninety days, and the fact that he is requested by the attorney of the creditor to make the return, when such conditions exist, is immaterial. The facts exist which show an exhaustion of the legal remedies, and such facts are not changed, modified or affected by the direction of the creditor’s attorney to return the execution unsatisfied, and a creditor’s bill will lie.</p> <p>3. Same—Execution May be Returned Within Ten Days.—The statutory provision permitting a creditor to schedule property within ten days after demand does not operate to make a return within the ten days invalid or insufficient to support a creditor’s bill.</p>

Injunction.—-Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the March term, 1897. Order modified and affirmed. Opinion filed October 31, 1897.

Assumpsit, on a guarantee of a promissory note. Appeal from the Superior. Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 21, 1897.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Winces, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897.

Trespass on tlie Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1897. Reversed and remanded. Opinion filed October 11, 1897.

<p>Divorce.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897.</p>

Transcript, from a justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding. Heard in this court at the March term, 1897. Affirmed. Opinion filed October 11, 1897. •

Transcript, from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1897. Reversed and remanded. Opinion filed October 11, 1897.

Transcript, from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1897. Affirmed if remittitur be filed, otherwise reversed and remanded. Opinion filed October 11, 1897.

<p>Trespass, guare clausum fregit. Error to the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion- filed November 2, 1897.</p>

<p>1. Trials—Issues of Fact Found by the Court.—The finding of the court upon issues of fact will not be disturbed upon review unless the reviewing court can say that there has been palpable error in weighing the conflicting testimony, and that the finding is not supported by evidence.</p> <p>2. Same—Trials by the Court—Sufficiency of the Evidence.—In trials by the court without a jury, if the evidence is such as to have sustained a verdict by a jury upon the issue involved, it will be regarded as sufficient to sustain the findings of the trial judge.</p> <p>3. Propositions of Law—Substituting the Belief of the Parties for their Action.—A proposition of law which substitutes the belief of the parties for their action is properly refused.</p>

<p>1. Presumptions—When the Evidence is Not Preserved in a Bill of Exceptions.—Where the evidence has not been preserved in a bill of exceptions the presumption that all the material allegations of the petition were sustained by the evidence, must prevail.</p> <p>2. Mandamus Proceeding—An Action at Law.—A petition for mandamus is an action at law and the judgment is a judgment at law. In order to support the judgment, it is not necessary that a finding of all the material facts should be recited in it.</p> <p>' 3. Errors—Not Assigned.—Errors not assigned will not be discussed.</p>

<p>1. Attachment—What the Affidavit Must Allege.—The affidavit for an attachment must allege the several matters necessary to authorize the writ in positive and unequivocal terms." Such allegations can not be made upon information and belief.</p>

Suit for Professional Services.—Transcript from a justice of the peace. Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion filed November 2, 1897.

<p>Bill to Rescind a Contract.—Error to the Circuit Court of Cook County; the Hon. Murray F. Tetley, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed November 2, 1897.</p>

<p>Action on a Sealed Instrument.—Declaration in assumpsit. Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion filed November 2, 1897.</p>

<p>Trespass.—Error to the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed November 2, 1897.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion filed November 2, 1897.

<p>Assumpsit, on a guaranty. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed November 2, 1897.</p>

Assumpsit, for official fees, etc. Appeal fropi the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed November 2, 1897.

<p>1. Final Order—What is Not.—An order of a Circuit Court in a chancery suit for the surrender of the custody of the fund by a receiver to another officer of the court, made expressly without prejudice to the accounting before the master, and concluding with an intimation that if such order is not complied with by a day certain, the court will treat the receiver as in contempt, is not a final order.</p>

<p>Order Appointing a Receiver.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed December 16, 1897.</p>

<p>1. Contempts—Direct and Constructive.—Contempts are either direct, such as are offered to the court while sitting as such, and in its presence, or constructive, but tending by their operation to obstruct, embarrass or prevent the due administration of justice.</p> <p>2. Same—Power of Courts to Punish.—Courts have power to punish direct and criminal contempts, and this power necessarily includes the power to punish indirect, consequential or constructive contempts, such as are acts calculated to impede, embarrass or obstruct the court in the administration of justice.</p> <p>3. Same—Jurisdiction in Error.—A sentence of imprisonment for a contempt is a judgment in a criminal case, and not being punishable by imprisonment in the penitentiary, is a misdemeanor, and the Appellate Court has, by statute, jurisdiction of all writs of error from final judgments in cases of misdemeanor.</p> <p>4. Same—Judgments Subject to Review.—Judgments of courts of record in contempt cases are subject to review, and no valid reason can be suggested why contempts committed in the presence of the court should be distinguished from others in this respect, and judgment of fine or imprisonment exempted from the revisory jurisdiction of.an appellate tribunal.</p> <p>5. Judgments—Erroneous in Form.—A judgment in proceedings for contempt which, after the infliction of a fine provides “ which he is hereby ordered to pay immediately to the clerk of this court, and in default of which payment to be imprisoned in the jail of this county, and there held for the period of sixty days and until discharged by due process of law, and a commitment issue to carry this judgment into effect,” is erroneous, because if committed in default of immediate payment the defendant would have to remain in jail sixty days, even though willing to pay his fine the next day after his commitment, and in addition would be liable for the amount of the fine.</p>

<p>Ill Equity.—Bill for relief. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed December 16, 1897.</p>

<p>1. Questions of Faot—Transaction a Sale or a Bailment—The question as to-whether a transaction is a sale or merely a bailment is one of fact, for the determination of a jury on all the evidence.</p> <p>3. Instructions—Abstract Propositions of Lato.—An instruction which states an abstract proposition of law without making any application of it to the facts of the case, is properly refused. :</p> <p>3. Same—To Find for the Defendant, When Improper.—A peremptory instruction to find for the defendant where there is a question of fact for the jury to decide on a conflict of evidence, is properly refused.</p> <p>4. Sales—Of Personal Property—Change of Possession.—To pass the title of personal property, there must be a change of possession so that third persons dealing with the vendee will not be deceived and defrauded by the appearance of ownership in one, while the title is really in another.</p>

Transcript, from a justice of the peace. Error to the Circuit Court of Cook County; the Hon. Charles T. Neely, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed December 16, 1897.

Debt, for the violation of a city ordinance. Appeal from the Criminal Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion filed December 16, 1897.

Order, dismissing an appeal. Error to the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion filed December 16, 1897.

<p>1. Equity Practice—Bills of Review.—A bill of review to review a decree on the ground of newly discovered evidence must specifically set forth the evidence and it must appear therefrom that it is evidence of an important and decisive character, and not merely cumulative. New evidence which simply tends to impeach the character or impair the credibility of witnesses, is not sufficient.</p> <p>3. Same—Must be Filed by Leave of Court.—A bill of review upon the ground of newly discovered evidence can not be filed without leave of court although fraud in obtaining the decree is also charged and •although leave is not necessary to the review of a decree for fraud alone.</p> <p>3. Same—Bill in the Nature of a Bill of Review.—A bill in the nature of a bill of review brought to impeach a decree for fraud must disclose the circumstances constituting the fraud.</p> <p>4. Same—Insufficient Grounds—Billof Review.—Evidence to impeach witnesses examined upon the original hearing or for the purpose of showing subornation or perjury of such witnesses is not a sufficient ground for allowing a bill of review.</p>

<p>1. Voluntary Assignments.—Power of Assignee to Estop Himself.— An assignee, as such, is not estopped from claiming goods in his possession by reason of his having made statements that such goods did not belong to him, but were the property of a third person.</p> <p>2. Same.—Construction of the Statute.—Section 47, chapter 72, R. S., relating to voluntary assignments, must be construed as relating to the power of the assignee to make use of, handle and preserve the insolvent estate and make title thereto in case of a sale, and not that misconduct or verbal statements of the assignee should estop him to the injury of the creditors of the estate, in the same way that a private individual would be held to be estopped.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed December 16, 1897. . ,

<p>Forcible Entry and Detainer.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed December 16, 1897.</p>

<p>1. Pendente Lite—Purchasers.—A purchaser pendente lite takes • subject to the rights of the parties to the suit as the same may be finally determined in the pending litigation.</p> <p>2. Judgments—Binding Effect of.—Judgments and decrees ■ bind equally parties and privies, and a purchaser pendente lite stands in the latter category.</p> <p>3. Decrees—Interlocutory, Not Reversible on Error.—An interlocutory decree is not reversible on error.</p> <p>4. Assignment of Error—What Must be Set Forth.—An assignment of error, like a pleading, must set forth errors which are available to all who join in it; if not' good as to all it is not good as to any.</p>

Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion filed December 16, 1897.

Bill, for an injunction. Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding. Heard in this court at the October term, 1897. Appeal dismissed. Opinion filed December 16, 1897.

Bill, for the construction of a deed. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed December 16, 1897.

<p>1. Estoppel—To Deny Indebtedness.—When a person makes his promissory note payable to his own order, indorses the same and delivers it to another person and gives to such other person full authority in writing to" pledge such note, which is done, he will be estopped from denying such authority or that he owed the full amount of the note.</p> <p>2. Mortgages— What an Assignee Takes.—The assignee of a mortgage takes it subject to any defense which the mortgagor would have against it in the hands of the mortgagee or assignor.</p>

<p>1. Courts—Motions to Vacate Judgments.—The power of the court over its judgments, while confined by the rules of law and by the terms .of the statute, to the term at which they are rendered, is yet extended to a subsequent term when a motion to vacate is entered at the judgment term and continued to the subsequent term.</p> <p>2. Same—Rules of the Circuit Court of Cook County Construed— Notice.—Rules 11 and 12 of the Circuit Court of Cook County provide as follows: “No motion will be heard or order made in any cause without notice to the opposite'party,"when an appearance of such party has been entered, except where a party is in default or when a cause is reached on the call of the calendar. Notice to the opposite party must be in writing, state the motion, designate the judge before whom the same is to be made, and the place of hearing, and be served by delivering a copy to such party or his attorney of record before 4 p. m. of the day preceding the day."’ This applies to the final disposing of and not to the mere filing or entry of such motion.</p> <p>3. Same—Vacating Judgments Discretionary.—The action of the trial court, in ruling upon a motion to vacate a judgment by default, is a matter of discretion, and will not be interfered with except when it clearly appears that the discretion has been abused.</p>

<p>1. False Pretenses—Must be of Existing Facts.—A false representation, within the meaning of the criminal code, must be of a present, material, existing fact, which the party making it knows, or has good reason to know, is false.</p> <p>3. Same—Promises are Not.—A promise is not a pretense.</p>

<p>1. Injunctions—Issuing of, Without Notice, as Cause of Complaint on Appeal.—That an injunction was issued without notice, and without any sufficient showing to avoid notice, can not be complained of on appeal, where, after the writ was issued, and prior to the appeal, there was a hearing on the merits, on a motion to dissolve.</p> <p>2. Same—Allegations of Fraud in Bills to Restrain the Use of a Name. — Allegations of fraudulent acts and intent, on the part of defendant, in a bill to restrain the use of the name of a business house, are sufficient to sustain the bill.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1897. Beversed and remanded. Opinion filed July 26, 1897.

Assumpsit, on a promissory note. Error to the Circuit Court of Cook County. The Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1897. Reversed but not remanded. Opinion filed December 16, 1897.

<p>1. Equity Practice—Exceptions to Master's Report.—When a party is dissatisfied with the finding of the master, he must make distinct exceptions, so the court can readily understand what matters are at issue between the parties, otherwise it will be understood that he acquiesces in such findings.</p> <p>2. Same—Failure to Except in Trial Gourt.—A party who is dissatisfied with the findings of the master and fails to except to them in the trial court can not do so on error or appeal.</p> <p>8. Same—Reference to Exceptions in Decree.—A mere reference to exceptions in the decree does not supply the absence from the records of specific objections. A court of review can not pass upon exceptions in ignorance of what they were.</p> <p>4. Amendments—Application for Leave Must be Made in Apt Time.— An application by a defendant in a suit in equity for leave to amend his answer and cross-bill must be made in apt time, so that the complainant may not be surprised or the cause delayed; it is too late after the evidence is closed and the report of the master is filed.</p>

<p>Assignment Proceedings. — Error to the County Court of Cook County; the Hon. Frank Scales, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed December 16, 1897.</p>

Assumpsit, on a beneficiary certificate. Error to the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded with instructions. Opinion filed December 16, 1897.

<p>1. False Representations—As to Matters of Fact.—If false representations are made as to matters of fact and the means of knowledge are at hand and equally available to both parties, and the purchaser, instead of resorting to them, trusts to the vendor, the law, as a general rule, will not release him from his own want of ordinary prudence. Especially so when the property is tangible, at hand, and subject to inspection.</p> <p>2. Negotiable Instruments—Separate Defenses—Consideration.— Section 13 of Chapter 98, R. S., entitled “ Negotiable Instruments,” permits three defenses, viz.: absence of consideration, failure of consideration and partial failure of consideration; these three are separate and distinct defenses and must be so pleaded. Under a plea of total failure of consideration there can not be a defense made on proof of a partial failure of consideration.</p>

Transcript, from a justice of the peace. Error to the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed December 16, 1897.

<p>1. Contracts—Preliminary Oral Negotiations.—All oral negotiations and agreements between the parties, which precede the reduction of their contract to writing, will be treated as merged in the writing.</p> <p>2. Latent Defects—Ira the Absence of Fraud.— In the absence of actual fraud the law will not protect a party where he has failed to exercise ordinary diligence and precaution to protect himself.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the October term, 1896. Reversed and remanded. Opinion filed March 8, 1897. Rehearing allowed, and cause reheard at the March term, 1897. Reversed and remanded. Opinion filed October 21, 1897.

<p>1. Contempt of Court—Duty of Court Before Commitment is Ordered.—The courts should always jealously guard the liberties of the citizen and should shrink from depriving any one of his freedom on account of a contempt, until he has been given every reasonable opportunity of complying with the law certainly and definitely prescribed and made known to him by the orders or directions of the court.</p> <p>2. Same—An Order of Commitment for, Held Void for Uncertainty.— An administrator was ordered to settle his accounts by a certain day, and having failed to do so, he was directed to be imprisoned for contempt “ until he shall have complied with said order or until discharged by due process of law.” Held, that as it was impossible for said order to be complied with, the time" having expired, the imprisonment might be continued indefinitely, and that the order of commitment was therefore void for uncertainty.</p> <p>3. Same—An Order of Commitment for, Held Not Justified by the Facts.—An administrator was ordered to settle his account by a certain day, and having failed to do so he was ruled to show cause why he should not be attached for contempt, and in response to said rule he filed a report showing receipts and disbursements and balance on hand, but did not pay over the balance to the person entitled thereto. On the same day, but whether before or after the filing of said report the record did not show, the court ordered him imprisoned for contempt. Held, that the order of commitment was not legally justified by the facts shown by the record, and that it was prematurely entered in that the court should have first ascertained the balance due, and ordered its payment within a reasonable time.</p> <p>4. Administration of Estate—An Order on an Administrator to “Settle his Final Account” Construed.—An order on an administrator to “ settle his final account ” should be construed in the light of the statutory provisions with regard to such settlements, and to be held to mean that the administrator file or present his account in court so that it can be considered and adjusted by the court, and when its items have been passed upon by the court and the balance determined that he then, and not until then, if the court shall so order, pay over such balance pursuant to the order of the court.</p> <p>5. Same—Payments by Administrators to Collect.—An undertaker’s bill and a bill of a physician for treatment of a deceased person during his last illness, should not be paid by an administrator to collect, but if paid and shown to be just and reasonable, the court may allow them and give the administrator proper credit.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Opinion filed December 23, 1897.

<p>Assumpsit.—Error to the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the. October term, 1897. Writ of error dismissed. Opinion filed December 23, 1897.</p>

<p>1. Construction'—Of Statutes.—It is a rule of construction that one part of a statute must be só construed by another that the whole may, if possible, stand.</p> <p>2. Juries—Sec. IS of Art. 18 of the Act of 1895, in Regard to'Justices and Constables, Construed.—The word“ jury ” as used in Sec. 12 of Art. 18 of “ An act to revise the law in relation to justices of the peace and constables,” in force July 1, 1885, does not necessarily mean a jury of twelve men, but must be construed to mean such a jury as is authorized by Sec. 13 of Art. 5 of the same act. . . . •’</p>

<p>1. Replevin—Action on Bond Accrues When Judgment is Rendered.—An officer may be sued for taking an insufficient replevin bond at any time after the determination of the replevin suit and award of retomo habendo, and within three years and not afterward. The statute of limitations begins to run when the writ of return is awarded and not when it is returned.</p>

Trespass, for injuries to real estate. Appeal from, the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion filed December 16, 1897.

Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Thomas G. “Windes, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion filed December 16, 1897.

Bill, to foreclose a chattel mortgage and for other relief. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the October term, 1897. Reversed and remanded. Opinion filed October 21, 1897.

Bill, for an accounting and a receiver. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in that court at the October term, 1897. Appeal dismissed. Opinion filed October 21, 1897.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. James Goggin, Judge, presiding. Heard in this court at the October term, 1897.. Reversed and remanded. Opinion filed December 23, 1897.

Intervening Petition, in receivership proceedings. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1897. Affirmed. Mr. Justice Sears dissenting. Opinion filed December 23, 1897.

Bill, for partition. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the May term, 1897. Appeal dismissed. Opinion filed December 2, 1897.

Action, to recover a penalty for obstructing a highway. Appeal from the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1897. Appeal dismissed. Opinion filed December 2, 1897.

Trespass on the Case, for killing stock.- Appeal from the Circuit Court of Sangamon County; the Hon. Jacob FOuke, Judge, presiding. Heard.in this court at the May term, 1897. Beversed. Opinion filed December 2, 1897.

<p>Bill for an Injunction.—Appeal from the Circuit Court of Sangamon County; the Hon. Jacob Fouke, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.</p>

<p>1. Bastardy—Intercourse with Persons Other than the Defendant. —Evidence that other persons had sexual intercourse with the prosecutrix at or near the time the child was begotten, is competent as tending to raise a doubt as to the paternity of a bastard child.</p> <p>3, Same—Prosecutrix Unchaste.—The fact that the prosecutrix is an unchaste woman is not a defense in a bastardy proceeding.</p> <p>3. Same—Intercourse after Conception.—After conception has taken place it is immaterial who may have had sexual intercourse with the prosecutrix.</p> <p>4. Same—Evidence Tending to Prove the Issue.—The fact that after the prosecutrix became pregnant, and the defendant knew it, they had a conversation as to what name the child should have is competent as a circumstance showing that he thought he was the father.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon.Robert B. Shirley, Judge: presiding, Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

<p>Assumpsit, for commissions. Error to the County Court of Mc-Donough County; the Hon. Crosby F. Wheat, Judge, presiding. Heard in this court at the May term, 1897. Eeversed. Opinion filed December 2, 1897.</p>

<p>Assumpsit, on a contract. Appeal from the Circuit Court of Sangamon County; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.</p>

<p>Voluntary Assignment Proceedings.—Appeal from the County Court of Piatt County; the Hon. F. M. Shonkwiler, Judge, presiding. Heard in this court at the May term, 1897» Affirmed. Opinion filed December 2, 1897,</p>

Trespass on the Case, for killing stock. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

Bill, to foreclose mortgage and for relief. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

Case, for slander of one in his profession. Appeal from the Circuit Court of Adams County; the Hon. Oscar P. Bonney, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded with instructions. Opinion filed December 2, 1897.

<p>Distress for Rent.—Appeal from the County Court of Moultrie County; the Hon. Isaac Hudson, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.</p>

Assumpsit, on a certificate of membership in a beneficiary association. Appeal from the Circuit Court of Sangamon County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

Trespass on the Case, for refusing to satisfy a judgment of record. Appeal from the Circuit Court of Christian County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1897, Reversed and remanded with instructions. Opinion filed December 2, 1897.

Trespass on tlie Case, for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

<p>Assumpsit, on promissory notes. Appeal from the County Court of Macon County; the Hon. William L. Hammer, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.</p>

Action, under the dramshop act. Appeal from the Circuit Court of Pike County; the Hon. Jefferson Orr, Judge, presiding. Heard in this court at the November term, 1897. Affirmed. Opinion filed December 2, 1897.

<p>1. Contracts—Effect of Laws in Force at the Time of Making.—The law in force at the time of the making of a contract becomes a part of the contract and fixes the rights of the parties under it, but if the law with reference to the enforcement of the rights of the parties is changed,the law as amended must be followed.</p> <p>2. Mechanics’ Liens—Waiver by Taking Other Security.—The taking of other security for his debt by a mechanic or material man will have the effect of discharging his lien.</p> <p>3. Same—Bights of Incumbrancers.—An incumbrancer can insist upon the fact that the taking of additional security by a material man or mechanic will work a discharge of the lien, and he can not be deprived ot this right by an agreement between the owner and such material man or mechanic to which he is not a party, and concerning which he had no knowledge.</p>

<p>1. Appellate Court Practice—Assignment of Cross-Errors.—If an appellee desires to contend that the court Jielow erred in reducing the amount found due him by the master he must assign cross-errors upon the record to that effect.</p> <p>2. Sales—By Trustees—Defective Title—Ejected Purchasers.—When a trustee sold and by a warranty deed conveyed a tract of land, and the purchaser paid for the same and made improvements but was afterward ejected from the land by reason- of a defective title, it was held that as the estate had had the benefit of the purchase money it was but equitable that the ejected purchaser should have it returned to him.</p>

Assumpsit, on notes given for a policy of insurance. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed December 2, 1897.

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Edgar County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed December 2, 1897.

Bill for Divorce.—Appeal from the Circuit Court of Jersey County, the Hon.' George W. Herdman, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed December 2, 1897.

<p>1. Fraud—In Procuring the Execution of a Note.—The fraud necessary to defeat a recovery by a bona fide assignee of a promissory note before maturity, must relate to the execution and not to the consideration upon which the note is based.</p> <p>3. Same—Of What it Must Consist.—Such fraud must consist of some trick or device that induces the giving of one kind of instrument under the belief of the maker that he is giving one of a different kind.</p> <p>3. Negotiable Instruments —Assignee Before Maturity Protected — The assignee of .commercial paper before maturity, for value, who takes without knowledge of any defense and in good faith, will be protected against the defenses of the maker, even though he purchased under circumstances sufficient to excite suspicion in the mind of a prudent man, and was guilty of negligence in not making an inquiry.</p> <p>4. Commercial Paper—Defenses in the Hands of Purchasers Before Maturity.—Commercial paper has become such an important factor of exchange that its sanctity and integrity, as a medium of exchange, can not be successfully attacked in the hands of a purchaser before maturity, by anything short of bad faith, and the burden of showing this rests with the attacking party.</p>

<p>1. Promissory 1ST otes—Purging of Defenses by Assignment.—The holder of a promissory note having knowledge of an equitable defense which the maker may have had to it at the time he received it, can not purge it of such defense by merely assigning it to a third party and receiving it back, at a subsequent time.</p> <p>2. Notice— Waived by Conduct of the Parties.—A notice required by the terms of a warranty upon the sale of a machine, may be waived by the conduct of the parties entitled to such notice.</p>

<p>Trespass on the Case for Slander.—Error to Circuit Court of Fulton County.- The Hon. Jefferson Orr, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.</p>

<p>1. Alimony—An Order in Regard to, Held Npt Justified by the Facts.—This court holds that the evidence in regard to the income and property of the defendant, and his treatment of complainant since the first order of the trial court, and in regard to the removal of complainant to another house, did not warrant the change made in the order in regard to alimony previously made by said court with the consent of both parties.</p>

<p>1. Drainage—Right to Have Water Run in Natural Channel Not Restricted by Act of 1SS9.—The ownéT of a higher tract of land has the right to have the water falling or naturally coming on his premises pass off through the natural drains upon or over the lower or servient lands adjoining, and to construct ditches or drains on his own land to conduct such water into the channel provided by nature, and this right is not restricted or abridged by the drainage act of 1889.</p>

<p>1. Warehouses—Certain Receipts Held to be Warehouse Receipts andan Agreement Held to be a Mortgage.—The court reviews the evidence in this case and holds that certain of the appellees were holders of warehouse receipts signed by insolvent, and that the written instrument constituting the contract between insolvent and appellants was not a warehouse receipt but á sale by way of mortgage.</p>

<p>Assumpsit, on a guaranty. Appeal'from the Circuit Court of Piatt County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.</p>

Assumpsit, on the common counts. Appeal from the Circuit Court of McLean County; the Hon. Thos. F. Tipton, Judge, presiding. • Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed December 2, 1897.

Assumpsit, for board, lodging, etc. Appeal from the Circuit Court of Greene County; the Hon. George W. Herdman, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

Bill, to enforce a party wall agreement. Appeal from the Circuit Court of Coles County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

Trespass on the Case, for personal injuries. Error to the Circuit Court of Sangamon County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

Petition, asking to have certain lands annexed to a drainage district. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus’ Epler, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

<p>Debt, for a penalty. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.</p>

Trespass on the Case, for killing a horse. Appeal from the County Court of De Witt County; the Hon. George K. Ingham, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed December 2, 1897.

Transcript, from a justice of the peace. Appeal from the Circuit Court of Edgar County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

Petition, in probate. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded with directions. Opinion filed December 2, 1897.

<p>1. Cities and Villages—Application of the Statute of Limitations and the Doctrine of .Equitable Estoppel.—The statute of limitations does not run in favor of an individual and against a municipality holding a street for the general public, but the doctrine of equitable estoppel from abandonment or non-user may be invoked.</p> <p>2. Estoppel— Where City Has Allowed Private Person to Use Street. —Where municipal authorities consented to the erection of structures in a public street and acquiesced in their remaining there for twenty-four years, and where the owners of such structures were induced to believe that they would not be interfered with by the public authorities, and so believing expended a large sum of money on such structures, the court holds that under the circumstances it would not be equitable or just to order such structures removed, and that the doctrine of equitable estoppel applies.</p>

Transcript, from a justice of the peace. Appeal from the County Court of Calhoun County; the Hon. John Zahrli, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed December 2, 1897.

<p>1. Building Associations—Effect of Assignment of Stock, After Notice of Withdrawal.—An assignment of stock of a building association after notice of withdrawal has been served, is a mere assignment of a demand against the association, and does not make the assignee a stockholder, and in case suit is instituted it should be in the name of the assignor.</p> <p>2. Same—Certificate Issued to Local Stockholder Binding on Foreign Association as Against Foreign Charter or Statute.—Where a foreign building and loan association comes into this State to do business it can have no greater rights than domestic associations of like character, and where its charter or the statute of the State under which it was incorporated provides restrictions for the withdrawal of stock not contained in ours they will not be permitted to prevail over the terms of the certificate which is issued to the Illinois stockholder.</p> <p>3. Same—Deductions from Amount Paid in by Withdrawing Stockholder.—There is no provision in the statutes of this State for deducting a net loss from the amount to be paid a withdrawing stockholder of a building association, and as long as such an association transacting business in this State, though organized under the laws of another State, is a going concern and doing business, it must pay a withdrawing stockholder without any such deduction.</p>

Trespass on the Case, for the value of stock killed by a railroad. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

<p>Assumpsit.—Appeal from the Circuit Court of Montgomery County; the Hon. Jacob Fouke, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.</p>

Trespass on the Case, for damage to land. Appeal from the Circuit C )urt of McLean County; the Hon. Alfred Sample, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed December 2, 1897.

<p>1. Husband and Wipe—Divestment of Interest of Husband in His Wife’s Property a Valuable Consideration.—The divestment of all interest, fixed or contingent, which a husband has or may have in the real and personal property of his wife is a valuable consideration, and will support a note and a mortgage given to secure it.</p>

Transcript, from a justice of the peace. Appeal from the County Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

<p>1. Receipts—Are Open to Explanation.—A general, receipt in full of all demands is open to explanation, and may by satisfactory proof be restrained in its operation. '</p>

Assumpsit, on a policy of life insurance. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in.this court at the May term, 1897. Affirmed. Opinion filed June 26, 1897.

Covenant, on a sealed lease. Appeal from the Circuit Court of Henry County; the Hon. Hiram Bigelow, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed June 26, 1897.

Trespass on the Case, for damage to property by a mob. Appeal from the Circuit Court of Bureau County; the Hon. Dorrancm Dibell, Judge, presiding. Heard in this court at the May term, 1897, Reversed and final judgment rendered. Opinion filed December 17, 1897.

<p>Foreclosure.—Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 17, 1897.</p>

<p>Injunction.—Error to the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 17, 1897.</p>

Assumpsit, on a contract of employment. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding! Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed December 17, 1897.

Assumpsit, for goods sold, etc.' Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the May term, 1897. Affirmed, Opinion filed December 17, 1897.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding^ Heard in this court at the May term, 1897. Reversed. Opinions filed December 17, 1897.

<p>1. Appellate Court Practice—Pointing Out Objections to Instructions.—When an appellant complains of instructions as erroneous, it is his duty to point out specifically the error complained of, otherwise the court will be under no obligation to consider error assigned thereon.</p> <p>2. Practice—Waiving Arguments.—A plaintiff may waive his opening argument to the jury, and if the defendant then waives his own argument, the plaintiff will not be entitled to close, but the case will go to the jury without argument.</p>

Action on the Case, under section 9 of the “ dram shop act.” Error to the Circuit Court of Warren County; the Hon. Hiram Bigelow, Judge, presiding. Heard in this court at the May term, 1897. Reversed and remanded. Opinion filed December 17, 1897.

<p>Trespass on the Case — Nuisance, etc.—Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 17, 1897.</p>

Assumpsit, for money wrongfully retained. Appeal from the Circuit Court of Stark County; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 17, 1897.