Volume 73 — Illinois Appellate Court Reports

<p>Assumpsit, on the common counts. Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Limitations—Buie Where an Amended Declaration is Filed.—If the cause óf action stated in an amended declaration is not a mere re-statement in different form of the cause of action stated in the original declaration, but is a new and different cause of action, then the plea of the statute of limitations is a complete bar to the cause of action stated in the amended declaration if it appears that the time which elapsed from the date when said cause of action accrued to the plaintiff, to the time of the filing of the amended declaration exceeds the time allowed by the statute.</p> <p>2. Same—Where an Amended Declaration is Filed the Identity of the Causes of Action Must he Tested hy the Pleadings.—Where the question arises whether the cause of action stated in an amended declaration is a separate and distinct cause of action from that stated in the original declaration, it must be decided solely by an inspection and comparison of the original and amended declarations.</p> <p>3. Same—Plea of the Statute of limitations Sustained, Where an Amended Declaration was Filed.-+The court discussed the original and amended declarations filed in this case and holds that the undertaking of the defendant alleged in the original declaration, on the conditions therein stated, and the promise alleged in the amended declaration on the conditions therein stated are essentially different undertakings with different persons, at different times and on materially different conditions, and are essentially distinct and different causes of action, and that the plea of the statute of limitations presents a complete defense to the cause of action stated in the amended declaration.</p>

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

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

<p>' Separate Maintenance. Appeal from the Circuit Court of Cook County, the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>1. Corporations—Liability of Person Who Assumes to Act for a Corporation Without Authority to Do So.—A person who assumes to contract in the name of a corporation, without power so to do, whether such lack of power be due to the fact that there is no such corporation in existence in contemplation of law, to lack of authority on the part of the agent, or to lack of capacity on the part of the corporation to enter into the contract, may in each ease be held liable to the party with whom the contract is attempted to be made, to make good the loss to such party by reason of his inability to enforce the contract as against the corporation.</p> <p>2. Same—Directors not Liable for Mistake of Law.—If a contract is entered into by the directors of a corporation and another under a mutual misapprehension as to the powers of the corporation under the law, such mutual mistake does not operate to render the directors individually liable.</p> <p>3. Same—Persons Dealing With the Officers of a Corporation May Rely Upon Their Representations as to Their Authority.—As between a person attempting to contract with a corporation and the officers of such corporation, professing authority on their part and capacity on the part of the corporation, such person may, if he chose, rely upon the representations of the officers as to matters peculiarly within their knowledge, without making any search of the records of a public office.</p> <p>4. Same—Suits Against Officers for Wrongful Assumption of Authority— Former Suit Against Corporation as an Estoppel.—Where a suit is brought against a corporation on a lease and it is held that no recovery can be had thereon and judgment is rendered for only an amount covering the benefit received by the corporation through its use of the premises, the plaintiff is not estopped from suing the officers of the corporation for a false assumption of authority. -</p> <p>5. Same—Officers of Acting Without Authority—Liability of as Partners. Where organization has been perfected and a corporation exists in contemplation of law, directors of the corporation who have executed a lease in its name can not be held liable thereon as partners.</p> <p>6. Agents—Liability of Agent for Improper Assumption of Authority.— If the principal is not bound by an instrument, the agent will not be bound thereby unless it contains apt words to charge him; although if he be of competent capacity to enter into a contract, he may be responsible in an action on the ease for his negligent performance of his duty, or his improper assumption of .authority.</p> <p>7. Same—Liability of Agent for Representations as to Authority not Known to be Drue.-—An agent, who by false assumption of authority, induces another to enter into a contract, which as to the professed principal is void, is liable to the party injured, although the agent without bad faith, merely represented that which he did not know to be true, omitting to give such information to the other contracting party, as would enable him equally to Judge as to the authority.</p>

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

<p>1. Appeals and Error—Appeals From Orders Dismissing Bills as to Part of the Defendants.—An order of court dismissing a bill as to one party is not a final order and can not be appealed from until there has been a final disposition of the case as to all other parties, in the absence of any showing that a peculiar hardship will result from a refusal to allow an appeal.</p>

<p>1. Practice—Verification of Petitions hy Affidavits on Information and Belief.—An affidavit to a petition for mandamus stating that “the several matters and things in the said petition named are true to the best of the knowledge, information and belief” of the affiant, is wholly insufficient and a mandamus should not be issued on a petition so verified.</p> <p>2. Mandamus—General Buie as to Issuance of.—If it would prove vain and fruitless or useless, if it can not have a beneficial effect, or if the relator has not a clear right thereto, a writ of mandamus will not be awarded.</p> <p>3. Same—A Mandamus Held Improperly Issued.—The supervisor of a town filed a petition for a mandamus against the assessor of such town, requesting that such assessor be required to produce his books before such supervisor, and assessor and the town clerk acting as a board of review of assessment and eight days after said board of review had adjourned sine die, after the date fixed by law for the assessor to return, his books, and after the county board had met for the purpose of performing its duty as a board of equalization a mandamus was ordered to be issued. Held on appeal that it was a vain and useless thing to require the assessor to produce his books at the'time mentioned and that the mandamus should not have been issued. ■</p>

<p>1. Insurance—Execution of Application—The Evidenee Held to Malee Prima Facie Proof of.—The court reviews the'evidence in regard to the execution of an application for insurance and holds that it makes prima facie proof of the signature of the insured and is sufficient to allow the application to be admitted in evidenee.</p> <p>2. Same—The Phrase “Suicide. Sane or Insane” Construed.—In a suit on an insurance policy containing "the sane or insane clause” in reference to death by suicide, it is not necessary in order to avoid liability, to show that a person taking his own life was conscious of the moral quality or consequences of the act, but only that he knew the physical nature and consequences of the act, that is that he knew that the means employed would cause death or endanger his life.</p> <p>3. Same— “Suicide, Sane or Insane”—Instructions in Regard to Considered.—In a suit on an insurance policy exempting the insured from liability if the insured should commit suicide “sane or insane” the phrases, "should intentionally commit suicide,” “intended to take his own life,” “did it voluntarily and intended thereby to take his own life,” “intentionally took his own life” and “voluntarily shot himself,” in instructions given with reference to the liability of the defendant under the “sane or insane” clause, are held to be too general in their nature and ambiguous and liable to mislead the jury.</p> <p>4. Same—The Application as Part of the Policy—Where a New Policy is Issued,.—In a suit on an insurance policy containing a clause making the application therefor a part of the policy, it appeared that the policy sued on was issued in place of the original policy issued on the application introduced in evidence as the one referred to, and that no formal application for the new policy was ever made. Held, that it was competent for the insurer to show that both parties understood the reference to be to the application for the original policy, but that in the absence of any proof other than the reference itself, it could not be so held.</p> <p>5. Burden oe Proof—Of Insanity in a Suit on an Insurance Policy.—In a suit on an insurance policy exempting the insurer from liability in case of suicide, where it is shown that the insured died by his own hand, the burden is on the plaintiff to show that the insured did not know the physical nature and consequences of his act.</p> <p>6. Practice—Counter Affidavits on Motions for a New Trial.—On a motion for a new trial on the ground of newly discovered evidence counter affidavits should not be received; the motion should be heard upon ex parte affidavits.</p>

<p>1. New trials—Grounds for Not •Mentioned in Written Motion Are Waived.—All reasons for a new trial not specified in the written motion, if any, must be deemed to have been waived, and can not be considered on appeal.</p> <p>2. Trials—Instructions to Find for Defendant.—Whether a trial court should instruct the jury to find for the defendant depends on whether or not there is evidence tending to support the plaintiff’s case, and if there is such evidence an instruction to find for the defendant should be refused.</p> <p>3. Same—An Instruction to fflnd for the Defendant Held Properly Defused.—In a suit by an administrator to recover damages for the death of his intestate alleged to have been caused by an accident on a defective elevator the court holds that the evidence shows'that the defendant failed to comply with a city ordinance in -regard to elevators, and that it tends strongly to show that the deceased was rightly on the elevator and engaged in the line of his duty when the accident occurred and that the question whether his death was caused by the negligence of defendant was a proper question for the jury.</p> <p>4. Ordinary Care—When It May Be Presumed.—Where it is manifestly impossible to prove by direct evidence that a person killed as a result of the alleged negligence of another, was exercising ordinary care at the time of the accident, a jury may infer such care from evidence that the deceased was sober, industrious, careful and of good habits.</p>

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

<p>1. Attachments—Judgments Against Property in Another Comty.— Where an attachment writ is not personally served on the defendant, or any person named in it as garnishee, and no property is attached by virtue of it, the court does not by virtue of such writ, acquire jurisdiction to render any judgment against the property of the defendant in another county.</p> <p>2. Same—Judgments Against Property in Another County.—It is not within the spirit or intention of the statute in regard to attachments, that the mere finding of property or credits in the county in which the suit is brought, without any judgment for the application of the same or the proceeds thereof, to the discharge of the indebtedness of the defendant, shall of itself authorize a judgment for the sale of the property of the defendant attached in another county.</p> <p>3. Same—Alias Writs not Authorised by the Statute.—The issuing of an alias writ of attachment is unauthorized by the statute and such a writ and all proceedings under it are void.</p>

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

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

<p>Trespass on the Case, for the malicious prosecution of a civil suit. Error to the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>1. Negligence—Persons Suing for Injuries Caused by, Must Have Exercised Ordinary Care.—A person suing for personal injuries must show that he was at the time of the accident in the exercise of ordinary and reasonable care for his own safety, that is such care as would be ordinary and reasonable for one of his age and condition.</p> <p>2. Same—Contributory Negligence and Ordinary Care,—There can be no contributory negligence in contemplation of law, where there is an exercise of ordinary and reasonable care.</p> <p>3. Same—Care Required of Plaintiff Suing for Injuries Caused by.— There can be no recovery for injuries caused by the negligence of a defendant, if the plaintiff’s negligence contributed to the injury and an instruction allowing a recovery, unless the plaintiff was guilty of a want of ordinary care which materially contributed to the injury, is erroneous.</p> <p>4. Trials—Accurate Rulings Required in Close Cases.—In a very close case where the right of recovery is quite doubtful, a verdict for the plaintiff will not be sustained unless the proceedings leading thereto are absolutely free from error which might have improperly affected the jury.</p> <p>5. Instructions—Announcing Abstract Propositions.—An instruction announcing an abstract proposition of law may be properly refused.</p>

<p>1. Negligence—Liability for, is Only for Probable Results of. —An injury that is the natural and probable consequence of an act of negligence is actionable. But an injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence is not actionable.</p> <p>2. Same—An Injury Held Not to be a Natural or Probable Result of.— The court discusses the evidence and holds, that the excited manner, loud talk, gestures or threats of the plaintiff in error, directed against the property of a third person, were not naturally or reasonably calculated to produce the injury sustained by the defendant in error, and that no injury therefrom could have been reasonably anticipated by plaintiff in error.</p>

<p>Judgment by Confession. Error to the Superior Court of Cook County; the Hon. TheodoreBrentano, Judge, presiding.</p>

<p>Assumpsit, on an insurance policy. Error to the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p> <p>Heard in this court at the October term 1897.</p>

<p>1. Fraudulent Conveyances—Mention. Where Sufficient Property to Pay Debts is not Retained.—It being established that an insured was insolvent when certain premiums were paid, and that he did not retain funds sufficient, after paying such premiums to pay his debts, it follows in relation to a person who was a creditor when such payments were made that the premiums were paid with intent to defraud.</p> <p>2. Same—Who May Attach, in Case of the Decease of the Grantor.— Where property has been fraudulently conveyed by a person who afterward dies,, such property is not assets in the hands of the administrator for general distribution among all the creditors. In such a ease the fraudulent conveyance can only be attacked by creditors, and if a particular creditor files a bill and secures a decree he is entitled to be rewarded for his superior diligence.</p> <p>3. Chancery—Resort to, to Collect a Debt Not Established at Law.— When a fund can not be reached at law and is only accessible in a court of chancery and the debtor is dead, and his estate insolvent, creditors may resort to equity in the first instance.</p> <p>4. Same—Set-Off in.—A court of chancery has a right to grant relief by way of equitable set-off against a person who has received payment of the amount of an insurance policy, to the extent of the premiums paid by the deceased while insolvent.</p> <p>5. Injunction—Effect of Enjoining Proceedings at Law.—An attempt to enjoin proceedings at law does not necessarily involve a confession of the validity of the claim in law, to the full extent of the addamnum laid.</p> <p>6. Witnesses—See. 8, Chap. 51, R. S. Applied.—A person who is a litigant in his own interest as one who, having received insurance money? is attempted to be charged with the amount of certain premiums as to creditors of the assured does not defend in a representative capacity, nor as an heir, legatee or devisee, and can not claim the benefit of See. 2, Chap. 51, R. S.</p>

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

<p>Assumpsit, for goods sold and delivered. Appeal from the County Court of Cook County; the Hon. Wales W. Wood, Judge, presiding.</p>

<p>Trespass on the Case, death from negligent act. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Divorcíe—Physical Violence as Cruelty.—Whether two or more acts of physical violence to a person is cruelty, depends on the character of the violence, the manner of the person committing it, and all the circumstances attending such acts, as well as on many other matters which might have a bearing in determining whether the particular violence is cruelty or not. y</p> <p>2. Same—Adultery—Where JBotli Parties are Guilty no Divorce Will he Granted.—One shown to be guilty of adultery can not have a divorce for adultery committed by the other and if adultery by the complainant in a cross-bill, ba set up in an answer to such cross-bill, proof to sustain such charge is admissible on the hearing although a charge of adultery made in the original bill has been withdrawn.</p> <p>3. Same—Trial by Jury—Effect of Verdict.—-When a divorce ease is tried by a jury, the trial has all the incidents of a trial at common law, and the verdict is not merely advisory to the court, but has the force and effect of a verdict at common law.</p> <p>4. Same—Adultery and Cruelty—A Verdict in Regard to Sustained.— The court discusses the evidence in relation to adultery and cruelty and concludes that it justifies the whole verdict of the jury and that the court did not err in dismissing both the original and cross-bills.</p> <p>5. Trials—An Instruction Calling for Proof by a Clear Preponderance of the Evidence in a Civil Case Erroneous.—It is improper to instruct a jury that a charge of adultery must be established by a clear preponderance of the'evidence, as only a preponderance of the evidence is required.</p>

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

<p>Practice—Exceptions to Orders Should be Preserved by a Bill of Exceptions.—Where no exception is preserved by a bill of exceptions to an order striking a plea from the files, nor to the overruling of a motion to set aside such order, the action of the court in that regard can not be reviewed on appeal. •</p>

<p>Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>Debt, on a foreign judgment. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Justices and Constables—Suits on Bonds of—Levy of Executions. The provision of the statute that the property of the’sureties on the bond of a justice of the peace or constable shall not be levied on till execution against the principal shall prove unavailing, has no application except to cases where a judgment has been obtained against the principal and some or all of the sureties and does not apply to eases where there is no judgment against the principal.</p> <p>2. Same—A Recovery on the Bond of a Constable Sustained.—In a suit against a constable and his sureties on his official bond it was shown that an execution was issued and delivered to a constable on May 2, 1894; that $50 was collected but not accounted for; that the execution was not returned until August 25, 1894; that an alias execution was issued and delivered to the constable October 5, 1894, which was not returned, and that the plaintiff in the judgment never received anything on either execution. Meld, the evidence was sufficient to sustain a recovery.</p> <p>3. Official Bonds—Suits on—Application of—Sec. IS, Chap. 10S, Revised; Statutes.—See. 13 of Chap. 103, Revised Statutes, which provides that suit may be instituted against an officer on his official bond and any or all of the sureties or against one or more of them jointly or severally, is not limited in its application to the bonds of executors, administrators, guardians and conservators but applies as well to bonds given by justices of the peace and constables.</p>

<p>1. Promissory Notes—Presumptions as to Indorsements.—Where a stranger to notes indorses them about the time of their execution by the maker, and before their delivery to the payee, the presumption is in the absence of evidence to the contrary, that he indorsed as guarantor, and that the consideration for the notes was also the consideration for the guaranty.</p> <p>2. Same—Existence of Payee Implied from Execution of Note,—Persons signing and indorsing a promissory note payable to an association or company impliedly state and hold out to the commercial world that there is an association of the name used capable of being the payee of a promissory note and of directing by indorsement .its payment to a third person.</p> <p>3. Same—Person Talcing Note as Payment of a Debt is an Indorsee for Value.—The indorsee of a promissory note before its maturity, taking it as payment for a pre-existing debt, is a holder for a valuable consideration and takes the note free from defenses which might have been made against the payee had there been no assignment.</p>

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

<p>Forfeiture of Recognizance. Error to the Criminal Court of Cook County; the Hon. Farlih Q. Ball, Judge, presiding.</p>

<p>1. Appellate Court Practice—Improper Briefs.—A mere statement of the opinion of counsel is not a brief and where such a statement is filed by an appellant or plaintiff in error the court is warranted in affirming the judgment without examination of the merits.</p> <p>2. Railroads—Not Bound to Keep Children off of Trains.—It is not a duty of a railroad company to see that children do not climb upon its trains at street crossings and no negligence can be charged against it for failing to do so irrespective of the age of a child who is injured or his freedom from chargeable negligence.</p> <p>3. Pleading—Duplicity.—A declaration containing only one count and alleging negligence on the part of a railroad company in failing to fence its right of way, and to keep a flagman at a street crossing, is bad on special demurrer for duplicity.</p>

<p>1. Findings by the Count—ATot Against the Weight of the Mvidenee Must Stand.—This court is unable to say that the finding of the issues by the trial court is against the weight of the evidence and such finding must stand.</p> <p>2. Sales—Notice of Acceptance of Permission to Throw Away Defective Goods.—A letter written by a vendor told the vendee that he might throw away such goods as he could not use. The vendee exercised this right but failed to notify the vendor as to what portion of the goods he found unfit for use. Held, that such notice was not essential to the right of the vendee to act upon the proposal of the vendor.</p>

<p>1. Partnership—Misappropriation of Money Borrowed on Mrm Mote— Agreements as to Payment of Dedts.—Where a managing partner having authority to bind the firm borrows money giving a note of the firm, the subsequent diversion of the money to other than firm uses can not affect the legal rights of the lender who was not a party to or cognizant of the misappropriation; and the fact that the lender is informed of an agreement for the payment of the note by one of the partners after the dissolution of the firm will not alter his rights in the absence of proof of assent by him to such arrangement.</p> <p>2. Promissory Notes—TJse of the Word“P’ Instead of the Word “we.” The use of the pronoun “I” instead of “we” in a promissory note given by a partnership does not interfere with its legal effect to bind the firm.</p>

<p>1. Partnership—Marshalling Assets.—It is a general rule that in the marshalling of assets, creditors of a partnership have no claim on the funds arising from the estates of the individual partners, until the individual debts are satisfied; and on the other hand, the creditors of the individuals can only seek payment out of the surplus of the partnership effects, after the satisfaction of the partnership liabilities.</p> <p>2. Same—Payment of Firm Debts From Firm, Property—Season of the Stile.—The members of a partnership have in equity a superior lien on the partnership property for the payment of the firm debts, and creditors of the firm may avail themselves of this equity of the partners to the exclusion of individual creditors if the equity has not been surrendered by the partners, but this right is one primarily inhering to the partners themselves and not to the creditors.</p> <p>3. Same—Application of Individual Property to Payment of Individual Debts—Season of the Stile.-—-It is a doctrine of equity that a creditor who has two funds to which he may resort for payment, shall be required to exhaust the one in which he has an exclusive interest, before he goes upon the fund to which another creditor can only resort, and hence individual creditors have priority over firm creditors as to individual property.</p> <p>4. Same—Partners may pay Individual Debts With Firm Property.— The law does not recognize firm creditors as having a superior equity to individual creditors for payment from the partnership assets, and partners have a legal right to surrender partnership property in payment of the demand of an individual creditor.</p> <p>5. Same—Talcing Judgment Against Entire Firm as Affecting Eights Against Individual Members.—The taking of judgment against all the members of a firm does not affect the right of a creditor to have his claim allowed against the insolvent estate of some of the members of the firm.</p>

<p>1. Promissory Notes—Presumptions as to Guaranty of by Payee.—In order to give a promissory note negotiability it must be indorsed by the payee, and no presumption can be indulged that a guaranty appearing on a promissory note was on the note when it was indorsed by the payee or that he authorized the placing of such indorsement above his name; and in a suit on a guaranty of a promissory note where the execution of the guaranty is denied by a plea properly verified the burden of proof is on the plaintiff to establish not only that the signature .appearing on the back of the note is that of the defendant but that the guaranty was on the note before he indorsed it or that he authorized it to be placed thereon.</p> <p>2. Same—Steps Necessary to Mender an Indorser Liable.—In order to hold the payee of a promissory note liable as indorser the note must be presented to the maker at maturity and payment demanded, the indorser notified of nonpayment and the note protested, or some valid excuse must be given for a failure to present for payment.</p>

<p>Insurance—Provisions or Exceptions in an Insurance Policy Must be Pleaded by the Insurer.—Clauses in an insurance policy which limit the liability of an insurance company by way of provision or exception, are solely for its benefit, and it must interpose and prove them as a defense. The insured need not notice them in his pleading or proof, to make a prima facie ease.</p>

<p>Bill, for relief. Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>Gifts—Of Inswrcmce Policies—Intention as Affecting the Question of Delivery.—When the question arises as to whether there has been a gift of an insurance policy, the intent is of vital importance, and the crucial test is the intent with which an act or acts relied on as a substitute for actual delivery were done, and evidence as to what was said by the deceased at the time of the execution of an assignment of the policy is material and should be considered as tending to show the intention of the deceased and to explain possession by him of the policy and assignment subsequently.</p>

<p>1. Garnishment—Garnishing Creditor has no Greater Eight Than Debtor. A garnishing creditor can have no greater rights against the garnishee than his debtor, and where the debtor can not maintain an action at law against the garnishee the creditor can not do so.</p> <p>2. Corporations—Inability of Purchaser of Stock at Dess Than Par.— If stock issued by a corporation has been once fully paid for the corporation, and subsequently passes to the corporation by purchase the fact that it is then sold at less than par .does not make the purchaser liable to creditors of the corporation.</p> <p>3. Same—For Unpaid Balance on Stock of a Corporation Where Receipt in Full is Given.—Garnishment, proceedings will not" lie on the part of creditors of a corporation to recover an unpaid balance on shares of stock where the amount received as payment in full was much less than the face value thereof. The remedy of a creditor in such a ease is in equity to set aside the contract of sale.</p>

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

<p>Appellate Courts—Jurisdiction—Constitutional Questions.-—-Where the question involved in an appeal is the legality of an ordinance of the city of Chicago establishing a hack stand in a public street upon the ground that it deprives abutting owners of their property and abridges their rights as such owners without due process of law contrary to the constitution, etc., the construction, that is, the application of a eonstitutional provision, is fairly debatable and the Appellate Court is without j urisdiction.</p>

<p>Trespass on tile Case, for abuse of legal process. Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

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

<p>Verdicts—•Excessive Damages—Remittitur—Duty of Trial Judge.—It is the duty of the trial judge if he deems a verdict excessive either to insist upon a remittitur of the excess or if the verdict is so far excessive as to indicate that it is the result of such passion and prejudice on the part of the jury as should discredit the whole verdict, than to set it aside and grant a new trial.</p>

<p>1. Sealed Instbtjments—Not to be Changed by Parol.—A sealed executory contract can not be altered, changed or modified by parol agreement.</p> <p>2. Same—Waiver of Conditions.— The provisions of an instrument under seal can not be waived by a parol agreement.</p> <p>3. Same—Equitable Estoppel.—The doctrine of equitable estoppel can not be applied at law to enforce a change in a sealed executory contract by parol.</p>

<p>In Equity, bill for relief. Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Practice-—Filing Pleas Pending Trial.—Allowing the filing of a plea during the pendency of a trial without imposing conditions is a matter within the discretion of the court.</p> <p>2. Same—Pleas of Former Adjudication.—Where some controlling fact or question material to the determination of both the causes has been adjudicated in the former suit by a court of competent jurisdiction, and the same fact or question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the later suit, irrespective of whether the cause of action is the same in both suits or not.</p>

<p>Trespass on the ease, for negligence in causing the death of Frank Agresto. Appeal from the Circuit Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.</p>

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

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

<p>Assumpsit, for goods sold, etc. Appeal from the County Court of Cook County; the Hon. C. W. Raymond, Judge, presiding.</p>

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

<p>1. Replevut—Requisites of the Action.—To maintain replevin the plaintiff must have the right of possession as well as the right of property.</p> <p>2. Fraud—Transactions as to Third Persons. —A transaction valid as between the parties to it, may, nevertheless, be fraudulent and void as to third persons.</p>

<p>Same as the preceding ease.</p>

<p>1. Referees—Testimony Before, a Part of the Record.—The statute (R. S., Ch. 117, See. 4) concerning referees makes the testimony of witnesses taken before a referee, together with all exhibits and papers introduced in evidence and the report of the referee, a part of the record of the cause.</p> <p>2. Same—Praetiee Before, Propositions of Law.—The submission of propositions of law may be dispensed with in eases heard before a referee under the statute. The parties may raise any question of law by exceptions to the report.</p> <p>- 3. Fraud—Upon Whom a Loss From Must Fall.—When one of two innocent persons must suffer from the fraud of another the loss must fall on him who by his imprudence has enabled such other person to -commit the fraud.</p> <p>4. Warehouse Receipts—Construction of the Statute—Bills of Lading. The act entitled, • ‘an act to regulate public warehouses and the ware-. housing and inspection of grain, etc., approved April 25, 1871,” has no application to bills of lading.</p>

<p>1. Instructions—To Mnd for the Defendant, When Proper.—Where it appears from the evidence in an action against a railroad company for personal injuries that the company has been guilty of no negligence, a recovery can not be sustained, and it is proper to instruct the jury to find for the defendant.</p> <p>2. Presumptions—Railroad Employees—Ordinary Hazards.—A railroad employee assumes the ordinary risks and hazards of the employment. The presumption is, that he understands the nature and dangers of the employment when he engages in the service, and if not, that he will inform himself.</p>

<p>In Equity. Motion to appoint a receiver. Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.</p>

<p>1. Landlord and Tenant—Liability for Failure to Make Repairs.— When a landlord at the time of leasing premises agrees to make certain repairs and fails to do so, he will be liable for injuries resulting from his neglect to make such repairs.</p> <p>2. Evidence—From Which Presumptions Arise.—Presumptions are derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind by the ordinary reasoning powers and without the aid of artificial rules of law.</p> <p>3. Instructions—Who Can Not Complain of Error in.—An instruction in a civil case requiring a degree of proof not required by law in such cases s err oneous, but the person in whose favor it is given can not be heard to complain.</p>

<p>In Equity, bill for an accounting. Error to the Circuit Court of Fulton County; the Hon. Jefferson Orr, Judge, presiding.</p>

<p>Bill, for foreclosure. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.</p>

<p>Assumpsit, breach of contract. Appeal from the Circuit Court of McLean County, the Hon. Thomas J. Tipton, Judge, presiding.</p>

<p>■I. Demurrer—What it Admits.—A demurrer admits all the matters well pleaded in the pleading against which such demurrer is aimed. ■</p> <p>2. Equities—As Between Judgment Creditors.—It is equitable as between the parties, to a proceeding in chancery for the appointment of a receiver who have the right as judgment creditors to look to property in the hands of such receiver for satisfaction, that each should credit his judgment with any moneys received thereon.</p>

<p>1. Officers de facto—Acts of—When Valid.—The acts of officers de facto are as valid and effectual where they concern the rights of third persons, as officers de jure.</p> <p>2. Schools—De Facto Directors—Employment of Teachers.—-Page and Rollins were declared elected directors at an election in a school district, Kuykendall and Mott contested their election and were declared elected by the County Court. Pending an appeal to the Supreme Court by Page, they employed a competent person as teacher and who taught the school during the term. Afterward the Supreme Court reversed the judgment of the County Court, holding that Page and not Kuykendall was elected. Held.. that Kuykendall was from the date of the judgment of the County Court, until the same was reversed by the Supreme Court, a defacto director of the district, and his acts as such in employing the teacher were binding upon it.</p>

<p>DeM. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Replevin. Appeal from the County Court of Tazewell County; the Hon. W. B. Curran, Judge, presiding.</p>

<p>Assumpsit, for goods sold, etc. Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>1. Judgments by Confession—When to he Entered—Under a warrant attached to a promissory note empowering any attorney to appear for the makers in any court of record, in term time or vacation, waive the issue of service of process and confess judgment against them for the sum named in such note and interest unpaid at time of said confession, at any time after the execution of such note and warrant, a judgment may be entered at any time after the execution of the note and warrant.</p> <p>2. Same—Construction of the Warrant.—If the language of a warrant of attorney for the confession of a judgment is ambiguous it is to be construed most favorably for the beneficiary therein and against the persons who execute it.</p>

<p>Judgments by Confession—Governed by the Preceding Case.</p>

<p>1. Practice—Effect of a Dismissal as to One of Several Joint-Defendants. Where two defendants are sued upon a joint obligation and the summons as to one is quashed upon a plea to the jurisdiction and the suit is dismissed as to him, it must also be dismissed as to the other defendant.</p> <p>2. Same—Pleas to the Jurisdiction Forms.—Forms of two pleas to the jurisdiction of the court on the ground that the defendants were not served with process in the proper county are given in the opinion of the court.</p>

<p>Debt, for a statutory penalty. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Debt, on an executor’s bond. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Trespass, for killing stock. Appeal from the Circuit Court of Coles County; the Hon. Francis M. Wright, Judge, presiding.</p>

<p>1. Questions of Fact—Province of the Jury.— The decisions of controverted questions of fact is intrusted by our laws to the jury and its decision is final unless passion, prejudice, or partiality appear to have controlled its action.</p> <p>2. Evidence—Contradicting Statements of Witnesses.—When the plaintiff is permitted to contradict the testimony of the defendants’ witnesses concerning statements made by him, it is proper that he should be confined to such contradiction and not be allowed to make additional statements.</p> <p>3. Negligence—A Question of Faet.—It is error to instruct a jury that certain facts proven do not constitute negligence as it takes from the jury the determination of the question of whether or not the defendant was guilty of negligence, which is a question of faet for the jury to determine from all the evidence in the ease.</p> <p>4. Same—Habits of Employees.—Evidence to show the habits of a motorman operating an electric ear as to the use of intoxicating liquor prior to the day of an accident is improper, but otherwise as to his condition as to such use on the day of the accident.</p> <p>5. Rules—Of Railroad Companies, Government of Employees, Inadmissible.—To allow a railroad company to show by its rules that an employee (a motorman) was required to perform certain acts (sound a gong) on certain occasions, is error, but not reversible error.</p> <p>6. Instructions—Error in, Cured.—A party who encourages a trial court to give an instruction wrong in principle can not be heard to complain of it.</p>

<p>Collateral Attack—Res Adjudieata.—A court oí equity will not interfere by injunction to grant relief against a judgment at law for causes which were available as a defense to the action in which such judgment was rendered and for which the party has had his day in court.</p>

<p>Insolvency Proceedings. Appeal from the County Court of Logan County; the Hon. L. C. Schwerdtfeger, Judge, presiding.</p>

<p>Debt, on a constable’s bond. Appeal from County Court of Moultrie County; the Hon. Isaao Hudsoh, Judge, presiding.</p>

<p>1. Estoppel—Mquitable, by Conduct—Acquiescence.—A party entered into a contract with the owner for the purchase of a lot, for the purpose of erecting a building thereon, paying a part and leaving the balance of the purchase money unpaid, and then entered into another contract with a builder to erect a building thereon. The owner in whom remained the legal title had knowledge of the ’contract with the builder and saw from Ray to day every step taken by him in furnishing material and erecting the building until it was nearly completed, without giving any notice that he had not received all of the purchase money or that the legal title remained in him. He was held to be estopped from setting up the legal title •against the lien of the builder.</p>

<p>Assumpsit, for goods sold. Appeal from the Circuit Court of Edgar County; the Hon. Frank K. Dunn, Judge, presiding.</p>

<p>Trial by the Court—Finding Against the Weight of the Evidence.—A finding by the judge, trying a case without a jury, which is the result of a mistake as to the amount due, will be reversed.</p>

<p>1. Insurance—Time for Bringing Suit—Limitation—Waiver.—A condition in a policy of life insurance that no action at law or suit in equity shall be brought or maintained or such policy or recovery had unless such action or suit is commenced within one year from the date of the death of the insured is intended for the benefit of the insurance company and may be waived by it.</p> <p>2. Forfeitures—Conditions of, in Policies of Insurance.—Courts will not require very stringent evidence to defeat the operation of a condition in a policy of life insurance providing that no action at law or suit in equity should be brought or maintained hereon or recovery had unless such proceedings be commenced within one year from the date of the death of the insured, such lapse of time being stated as an absolute bar against the validity of the claim.</p> <p>3. Waiver—Of Conditions in Policies of Inswranee.—Any conduct on the part of an insurance company clearly inconsistent with a condition in its policy limiting the time within which suit must be commenced will justify the inference that the condition has been waived.</p> <p>4. Limitations—In Policies of Insurance, Sustained by the Weight of Authority.—Stipulations in policies of insurance limiting the time in which actions are to be brought upon such policies, are sustained by the great-weight of authority (Riddlesbarger v. Hartford Ins. Go., 7 Wall. (U. S.) 386).</p>

<p>1. Waiver—Of the Sight to Assign Error.-—Where the defendant in arguing a motion for a -new trial stated that he had no criticism to make or fault to find with the rulings of the court in the admissions or exclusion of evidence nor in the giving or refusing of instructions and that he relied-upon two grounds only, viz., that the evidence did not warrant the finding and that the damages were excessive. It was held on appeal that he could assign only as error, that the verdict was contrary to the evidence and that the damages were excessive, the right to assign other errors having been waived by his action in the court below.</p> <p>2. Verdicts—On Conflicting Evidence.—When there is a conflict in the evidence the jury and the trial judge who saw tfie-witnesses and observed their manner when testifying are better able to determine where the truth lies than a court of appeal.</p>

<p>Promissory Notes—Remedies Against Joint Makers.—The holder of a joint and several promissory note may bring a suit thereon against both of the makers in justice’s court (where a justice has jurisdiction), and if he obtains service upon one only, he may take judgment against him and 'without dismissing his suit as to the other before the justice, may bring another suit against the maker not served and. recover in the Circuit Court, but sueh holder can not have more than one satisfaction of his note.</p>

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

<p>Attachment, and garnishee proceedings. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>1. Farm Labor—Work on Sunday.—Where a party hires to work for a farmer at a stipulated rate per month, knowing that certain work will be required of him on Sunday, the law will not imply a promise to pay additional wages for such work, and before he can recover for the same he must show a special agreement on the part of his employer to pay extra therefor.</p> <p>2. Verdicts—Misconception of the Evidence.—A verdict, which is the result of a misconception of the evidence by the jury or of prejudice against the defendant, should not be permitted to stand.</p> <p>3. Settlements—Presumptions Arising From.—When parties have a settlement of their accounts and a check for the amount found due from one to the other which recites that it in full is accepted and afterward paid, the presumption of fact is strong that all items, properly chargeable at the time are embraced in the settlement.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Brown County; the Hon. Harry Higbee, Judge, presiding.</p>

<p>1. Partnership—What is, Agreement.—An agreement between B. and M. that M., in addition to twenty-five head of cattle already furnished, should furnish $1,200, to be invested by B. in mares, and such further sum as M. might advance; that B. should have the care of such stock and the product thereof for five years. All losses to be borne equally and all proceeds, after paying M. the money advanced, to be shared equally, constitutes a partnership.</p> <p>2. Same—Settlement of Differences in Chancery.—A court of chancery is the only judicial forum that can take jurisdiction of the differences between partners for the purposes of settlement.</p>

<p>1. Liehs—Of Common Carriers.—Liens of common carriers upon goods transported by them are created only by law or by contract of the parties, and when the law gives no lien, neither party can create it without the consent of the other.</p> <p>2. Same—Extent of the Iden.—The lien allowed the carrier by law extends only to his charges for the transportation of the goods, and does not include expenses for warehousing them.</p> <p>3. Same—Bight of Demurrage.—The right to demurrage does not attach to carriers by rail. (Chicago & N. W. R’y Co. v. Jenkins, 103 Ill. 588.)</p> <p>4. Railroads—Publication of Buies, Presumptions, Demurrage.—When a railroad company has established rules providing for demurrage and published them to the public no presumption will be indulged against a shipper that he consented to a charge for demurrage because at the time of his shipment he understood what the rule was.</p> <p>5. Same—Bight of Demurrage in the Absence of a Contract.—A rule of a railroad company providing that forty-eight hours will be allowed for the loading or unloading of any commodity, after which a charge of $1 per car per day, or fraction thereof, will be made in the absence of a contract with the shipper to that effect, gives the company no lien upon the consignment for such charge.</p>

<p>1. Railroad Companies—Right to Create Demurrage Liens.—A railroad company can not create in its' own favor a demurrage on freight not removed from a ear within a certain time by simply publishing to the public its intention of doing so.</p> <p>2. Same—Presumptions From Acquiescence.—Because a consignee has been, in particular instances, tardy in, removing freight, and has acquiesced in a rule of a railroad company requiring the payment of detention charges without protest, it can not be held that such acquiescence amounts to a contract to pay such charges jn future eases, where there is an unreasonable insistence upon the application of a rule requiring it by the railroad company.</p>

<p>Assumpsit, on an insurance policy. Error to the Circuit Court of Rich-land County; the "Hon. Edmund D. Youngblood, Judge, presiding.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wildebman, Judge, presiding.</p>

<p>1. Railroad Companies—Eights Under Grants of the Eight of Way.— A grant by the owner of premises to a railroad company authorized to acquire lands by purchase, of a right of way through such premises for the purpose of constructing and operating a railroad with all its necessary appurtenances and for all uses and purposes connected with the construction, maintenance and complete operation of the same, has the same effect so far as the recovery of damages, either past, present or future, is concerned, as proceedings by condemnation and no action for damages occasioned thereby can be maintained by a subsequent purchaser of other portions of said premises.</p> <p>2. Same—Privileges Under Special Gi-ants—Conveniences—Switches and Turntables.—Within the right of way conveyed by deed to a railroad company for the purpose of constructing, maintaining and operating thereon, a single or double track railroad, with all its necessary appurtenances, and for all uses and purposes connected with the construction, repair, maintenance and complete operation of said railroad, everything essential and convenient to the safe and proper operation of the road, may reasonably be expected to be placed by the company.</p> <p>3. Same—Switches and Turntables—To be Anticipated by Subsequent Purchasers.—Switches and turntables are such common conveniences in the operation of a railroad as to be fairly anticipated by a subsequent purchaser of property abutting upon a right of way, previously conveyed to the railroad company by the grantor.</p> <p>4. Same—Construction of Switches and Turntables—Nuisances.—Where a grant of a right of way through lands to a railroad company is for a specific purpose, as for all lawful uses and purposes incident to a full and indefeasible title in fee simple, or in any way connected with the construction, preservation, occupation, sole enjoyment, maintenance, repair and complete operation of a railroad, the construction of switches and turntables; the turning, moving or standing thereon of engines; the casting of smoke, cinders and ashes upon the abutting premises, are necessary incidents of a complete operation of the road. The grant being for such purposes, the consideration must be considered as full compensation in law, to the grantor and his grantees, for all present and future damages.</p> <p>5. Same—Eight of Subsequent Purchasers to Damages.—When the owner of premises granted to a railroad company authorized to acquire lands for railroad purposes by purchase, the right of way through the same by a deed conditioned for the purpose of constructing, maintaining and operating thereon a railroad with all its necessary appurtenances and for all uses and purposes connected with the construction, repair, maintenance and complete operation of a road, to have and to hold the same unto it and its successors and assigns forever for all lawful uses and purposes incident to a full and indefeasible title in fee simple or in any way connected with the construction, preservation, occupation and sole enjoyment of such road and afterward platted and laid out the remaining portion of said premises into town lots, which he afterward sold to different persons. In an action by one of the subsequent purchasers against the railroad company to recover damages occasioned by noises of the engines upon such road and for smoke and soot, etc., cast upon his premises, it was held that the original consideration of the grant included all such damages present and future and that he could not recover.</p>

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

<p>Trespass on the Case, for personal injuries. Error to the City Court of East St. Louis; the Hon. B. H. Cahby, Judge, presiding.</p>

<p>1. Instructions—Abstract Propositions of Law—Harmless Error.—It is riot reversible error to give an instruction in the form, of an abstract proposition of law, in a case where the undisputed evidence shows the plaintiff guilty of gross negligence as the cause of the injury complained of and that the person injured was without fault.</p> <p>2. Pleading—In Personal Injury Cases■—Permanent Injuries.—A declaration in an action for personal injuries need not contain an averment charging a permanent injury to warrant the admission of evidence tending to prove such injury.</p> <p>3. Personal Injuries—Necessity for Medical Treatment.—The mere existence of a personal injury proves the necessity and lays the foundation for the introduction of evidence of medical treatment:</p>

<p>Assumpsit, for board, lodging, etc. Appeal from the Circuit Court of Richland County; the Hon. Edmund D. Youngblood, Judge, presiding.</p>

<p>1. Gifts—Fraudulent Intent, Insolvency of the Donor.—In purely voluntary donations it is the fraudulent intent of the donor which vitiates the gift. If actually insolvent, he is held to knowledge of his condition, and if the necessary consequences of his acts are to hinder or defraud his creditors, the presumption of fraudulent intent is conclusive.</p> <p>2. Life Insurance—Act of 1869 to be Liberally Construed.—Section 19 of the act of 1869 to organize and regulate the business of life insurance (R. S. Starr & C. (2 Ed.), Ch. 73, Sec. 189) and relating to life insurance by a married woman upon the life of her husband for the benefit of herself and her children, should be construed in the nature of a statute of exemptions so that an insolvent debtor may rightfully carry a reasonable amount of insurance for the protection of his family, and that in the absence of a fraudulent intent in both the insured and beneficiary the creditors can have no right, in the proceeds of the insurance, but only in the premiums paid.</p> <p>3. Same—Fraudulent Intent in Paying Premiums.—Under the statute, fraudulent intent on the part of the insured alone in diverting his means from the payment of his debts to the payment of life insurance premiums and mortuary assessments for the benefit of his children, while not subjecting the whole proceeds of such insurance to the payment of his debts, does enable his creditors to recover the amount of premiums and mortuary assessments so fraudulently paid.</p>

<p>Creditor’s Bill. Appeal from the Circuit Court of Effingham County;, the Hon. Edmund D. Youngblood, Judge, presiding.</p>

<p>Assumpsit, on a building contract. Appeal from the City Court of East St. Louis; the Hon. B. H. Caitbt, Judge, presiding.</p>

<p>DeM, on a money bond. Appeal from the -Circuit Court of St. Clair County; the Hon. AlonzoS. Wilderman, Judge, presiding.</p>

<p>Trial of the Rights of Property. Appeal from the County Court of Lawrence County; the Hon. A. M. Goodwin, Judge, presiding.</p>

<p>1. Banks and Banking—Relations With Depositors.—The ordinary relation between bankers and depositors is that of debtor and creditor; it has nothing of the nature of a trust in it.</p> <p>2. Bankers—Receiving Deposits When Insolvent—Under the Act for the Protection of Depositors—Thirty Days Limit.—The offense created by the act of June 4,1879, entitled, “An act for the. protection of bank depositors’ ’ is complete whenever deposits are received by an insolvent banker. The thirty days limit is a rule of evidence made by the legislature declaring what is prima facie evidence of an intent to defraud.</p> <p>3. Same—Intentional F'aud Immaterial.—The act for the protection of bank depositors (June 4, 1879) renders bankers liable to prosecution for receiving deposits when insolvent, whether they are aware of their insolvency or not.</p> <p>4. Same—General Deposits.—When a customer makes a deposit in a bank in the ordinary course of business, of a draft or check received or credited as money and indorsed by the customer to the bank “for deposit" to be placed to his credit, the title to the draft or check vests in the bank.</p> <p>5. Same—General Deposits Before and After Insolvency—Preferences.— When a general deposit is made before formal insolvency, there can be no recovery in preference to other creditors, but when the deposit has been kept separate and not fully received before insolvency, the depositor may recover it.</p> <p>6. Same—Deposits Mixed With Other Funds.—When a deposit has been mixed with other assets of the bank so as to be incapable of identification it can not be recovered as a special deposit.</p>

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

<p>Intebest—When Not Recoverable.—Interest is not recoverable upon a contract in which no rate is named or time of payment specified, and the evidence fails to show that any claim or demand was ever made for the money claimed.</p>

<p>Assumpsit, breach of a contract in writing. Error to the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.</p>