Volume 74 — Illinois Appellate Court Reports

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

<p>1. Evidence—Of Quality, When Inadmissible.—In an action to recover damages for a refusal to order, receive and pay for certain goods under a contract, where the proofs show the defendant had not repudiated the contract or refused to receive the goods on account of their defective quality, evidence of defects in certain quantities of the goods, which were received and paid for under the contract, is inadmissible for the purpose of showing an excuse for a failure to order the full quantity of goods required by the contract.</p> <p>2. Waiver—What is Not Sufficient to Show.—The fact that goods were sold and delivered by a vendor to a purchaser after the expiration of a contract of sale for similar goods, theretofore existing between them, without any further or definite agreement having been made, is insufficient to show a waiver of any liability under the original contract which then existed.</p> <p>3. Damages—Measure of—Breach of Contract—Loss of Profits.— When parties contract, the one to manufacture wagons and boxes, and the other to buy and pay for them at a fixed price, and the latter afterward refuses to do so, the measure of damages is the difference between what it would have cost to make and deliver such wagons and boxes and the price agreed on in the contract to be paid therefor.</p> <p>4. Same—The Rule at Common Law.—The general rule of the common law is that damages are to be assessed at the pecuniary amount of the difference between the state of the plaintiff upon a breach of the contract and what it would have been if the contract had been performed; that is, the benefit that the party injured would have received if the contract had been kept. He is, so far as money can do it, to be placed in the same situation as if the contract had been performed.</p>

<p>Action, to recover a penalty for obstructing a highway. Error to the Circuit Court of Mercer County; the Hon. Hiram Bigelow, Judge, presiding.</p>

<p>Trespass on the Case, for malicious prosecution. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>Assumpsit, for work, labor, etc. Appeal from the Circuit Court of Peoria County; the Hon. N. E. Worthington, Judge, presiding.</p>

<p>1. Instructions—Containing Abstract Propositions of Law, Where Error to Give.—In cases where the result depends particularly upon the application of the rules of law to the testimony, it is error to give instructions containing abstract propositions of law without stating an application to the facts of the case.</p> <p>2. Same—Must be Based upon the Evidence.—An instruction which is not based upon evidence in the case, is erroneous.</p>

<p>Trial Rights of Property.—Appeal from the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding.</p>

<p>1. . Cutting Timber—Requisites of the Proof.—To subject a party to a penalty for cutting timber under the statute (3 S. & C., Par. 5, Ch. 136), it must appear that he committed the wrong knowingly and willfully, under such circumstances as show him guilty of criminal negligence; the statute does not apply to a person who cuts the timber under the mistaken belief that he is the owner.</p>

<p>1. Partition of Real Estate—Solicitors’ Fees.—In suits for the partition of real estate, the court has no power to decree the payment of solicitors’ fees where a defense, valid and substantial inits character, has been interposed in good faith although such defense maybe unsuccessful.</p> <p>■ 2. Same—What is Not a Compliance with the Statute.—It is not a compliance with the statute requiring that the rights and interests of all the parties in interest in a suit for partition be properly set forth in" the bill, to merely set out the interests of the parties as they.appear,of record where the record dobs not correctly state the title.</p>

<p>1. Federal Judgments—Liens of.—The question, what is the lien of a judgment rendered in the Federal courts, is one of Federal law, to be conclusively settled by the construction adopted by the highest Federal tribunal.</p> <p>2. Federal Courts—To What Extent Bound by State Laws.—To what extent courts of the United States are bound by the statutes of the State in which they are held, in practice, pleadings and modes of procedure, is a question of Federal law upon which the conclusions of the Supreme Court of the United States are final.</p> <p>8. Judgments—In Federal Courts—Extent of the Lien of.—A judgment rendered in the United States Court for the Northern District of Illinois on March 81, 1888, is a lien upon all the lands of the person against whom it is rendered, situated in the district for which said court is holden.</p> <p>4. Construction of Statutes—Retrospective Laws.—Statutes are usually construed as operating on cases which come into existence after they are passed, unless a retrospective effect is clearly intended. Retrospective laws are not looked upon with favor.</p> <p>5. Judgments—Of United States Court, When to be Liens on Property in States—Construction of Statute.—The act of Congress regulating the liens of judgments and decrees of the courts of the United States, passed August 1, 1888, providing that judgments and decrees rendered in a Circuit or District Court of the United States within any State shall be liens on property throughout such State, in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such State, and providing “that whenever the laws of any State require a judgment or decree of a State court to be registered) recorded, docketed, indexed, or any other thing to be done, in a particular manner, or in a certain office or county or parish in the State of Louisiana, before a lien shall attach, this act shall be applicable therein whenever, and only whenever, the laws of such State shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed, or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the State.” is not intended to have a retroactive effect, and does not apply to judgments already liens under prior laws.</p> <p>6. Statutes—Construction of the Act of June 8,1889—Liens ofJudgments.—The act of the legislature of the State of Illinois, in force July 1, 1889 (Laws 1889,195), amending Section 1 of Chapter 77 of the Revised Statutes, providing that upon the filing in the office of the clerk of any court of record, in any county in this State, of a transcript of a judgment or decree rendered in any other county of this State, such judgment shall have the like force and effect, and shall be a lien upon the real estate of the party against whom the same is obtained in said county where filed, and execution may issue thereon in said county in like manner as in the county where originally obtained, has no application to judgments which had already become liens upon real estate under prior laws.</p> <p>7. Same—Construction of the Act of April 89, 1889—Judgments of Federal Courts to be Recorded, etc.—The act of the legislature of Illinois, approved April 29, 1889 (Laws 1889, 197), providing that judgments and decrees of courts of the United States held within this State, and all writs, returns, certificates of the levy of a writ and records of said courts may be registered, docketed, indexed or otherwise dealt with in the public offices of this State, so as to make them conform to the rules and requirements relating to judgments and decrees of courts of this State, has no application to judgments and decrees of the Federal courts which were, at the time this act went into effect, already liens upon real estate under prior existing laws.</p> <p>8. Equity Practice—Affirmative Relief Without a Cross-bill.— ' When a bill for foreclosure of mortgage alleges that a party, naming him, has, or claims to have, some interest in the mortgaged premises, and such party answers asserting, and in the trial establishes, a prior lien, if the bill prays for the sale of the premises to satisfy the mortgage debt, and that upon a sale being made, the money arising therefrom be brought into court to be distributed among the parties according to law, such party establishing a prior lien is entitled to have such lien satisfied out of such money without filing a cross-bill.</p>

<p>1. Limitations—Additional Counts—New Causes.—Anew cause of action distinct from that set out in the declaration can not be brought into a case by an additional count, after the time for suing upon it has expired.</p> <p>2. Personal Injuries—In What the Cause of Action Consists.—In suits for personal injuries, the cause of action is not merely the injury to the plaintiff but is the negligence of the defendant.</p> <p>3. Pleading—Additional Counts in Actions for Personal Injuries.— In actions for personal injuries resulting from negligence, the plaintiff may properly file new counts amplifying and enlarging upon matters of negligent management, etc., without making them obnoxious to the statute of limitations; but he can not charge a particular negligence in his declaration and at the trial recover for another and different negligence.</p>

<p>Trespass, to real estate. Appeal from the Circuit Court of Kankakee County; the Hon. C. R. Starr, Judge, presiding.</p>

<p>1. Liens—For Towing Rafts.—The owner of a steamboat engaged in towing a raft of lumber for a third person, is entitled to a lien upon each piece and parcel of the lumber therein for the carriage of the entire raft while it remains in his possession, and the person for whom such towing is done, can not change or defeat such lien by directing him to divide the raft and bring a portion of it only, to its destination.</p> <p>2. Same—Not Defeated by Delay in Enforcing Payment.—Where the owner of a steamboat has a lien upon the lumber in a raft for his services in towing the same, such lien is not defeated by his delay in enforcing payment for other rafts previously towed by him for the same person.</p> <p>3. Same—Remedies in Equity.—The owner of a steamboat having a lien upon a raft of lumber for towing the same, may enforce his lien in a court of equity.</p> <p>4. Possession—Of Personal Property—How Determined.—The question as to who has possession of property in litigation, is one of fact to be determined from the preponderance of evidence.</p> <p>5. Same—Persons Employed to Watch Property.—Where a person employs another to watch property, he does not, by that fact alone, put him in possession of it. A mere watchman is not necessarily in possession of the property he guards.</p> <p>6. Estoppel—2'o Assert Want of Jurisdiction.—Where the owner of a steamboat filed his bill in a State court to enforce his lien for towing a raft of lumber, and the defendant filed his petition, asking that he might, upon giving a bond to pay the complainant whatever lien might be established in his favor; také possession of the lumber,which was allowed, and possession of the lumber delivered to him, he was held to be estopped by such action from questioning the jurisdiction of the State court.</p> <p>; 7. Maritime Jurisdiction— Where a Case is Not Within.—Where a bill was filed in a State court to enforce a lien upon a raft of lumber for towing the same in a navigable river, and the defendant, on his own application, obtained an order for the possession of the raft by executing and filing a personal bond in court, conditioned to pay and discharge whatever lien the court might find to exist upon it in favor of the complainant, it ivas held, that the suit thereafter became one in personam and not within the jurisdiction of a court of admiralty.</p> <p>8. Maritime Liens—Admiralty Jurisdiction—Quare.—Whether he who, in the performance of a contract, renders services in towing a raft of lumber in a navigable river, has a maritime lien thereon for such services, and whether such raft is a proper subject of admiralty jurisdiction, are questions upon which the authorities are in conflict. (Authorities cited.)</p>

<p>1. Pleading—Clerical Errors to be Pointed Out by Special Demurrer.—A mere clerical error in a pleading which can mislead no one must be pointed out by special demurrer, or the error will be waived, and the evident intent of the pleading will prevail.</p> <p>2. Same—Defective Declaration After Verdict.—A declaration which states a cause of action defectively is good after verdict.</p> <p>3. Cross-Examination—Subject-Matter of.—The cross-examination of a witness must be strictly confined to the subject-matter of his direct examination, especially where the witness is interested in the event of the suit with the party cross-examining him.</p> <p>4. Notice—Of Defective Sidewalks.—The act of sending a man by the city authorities to repair a sidewalk is evidence that the city had notice of its bad condition.</p> <p>5. Practice—Pleadings and Proofs.—When the declaration alleges that the defendant is a corporation organized under the laws of the State of Illinois, and the pleas do not traverse it, it is not improper, although unnecessary, to prove the allegation.</p> <p>6. Same—Instructions Upon Theories Must Be Asked for, etc.—A party can not ask his opponent to embody his own theories in instructions offered in such opponent’s behalf; he must prepare and submit instructions for himself.</p> <p>7. Same— What Papers the Jury May Take.—The jury may, upon retiring from the bar, take to the jury room all pleadings in the case upon which issue has been joined.</p>

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

<p>In Equity.—Bill to foreclose mortgage. Appeal from the Circuit Court of Whiteside County; the Hon. John C. Carver, Judge, presiding.</p>

<p>!• Real Estate Agent—When Entitled to Commissions—When a real estate agent makes a verbal contract of sale, void under the statute of frauds, and which his principal refuses to carry out, the agent is nevertheless entitled to his commissions upon showing that the prospective purchaser was able, ready and willing to carry out his contract.</p> <p>2. Judgments—In Excess of the Evidence.—A judgment for more than the proofs show the party entitled to recover will be reversed.</p>

<p>1. Warranty—Burden of Proof.—The burden of proving a warranty is upon the party alleging it to exist.</p>

<p>Trespass oil the Case, for seduction. Appeal from the Circuit Court of Grundy County; the Hon. George W. Stipp, Judge, presiding.</p>

<p>Assumpsit, for wages, etc. Appeal from the Circuit Court of Henry County; the Hon. Hiram Bigelow, Judge, presiding.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Circuit Court of Jo Daviess County; the Hon. James Shaw, Judge, presiding.</p>

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

<p>Assumpsit, upon a contract of indemnity. Appeal from the Circuit Court of La Salle County; the Hon., Charles Blanchard, Judge, presiding.</p>

<p>Trespass on the Case, for injury to land. Appeal from the Circuit Court of Bock Island County; the Hon. Hiram Bigelow, Judge, presiding.</p>

<p>1. Verdicts—Upon Conflicting Evidence.—Where there was a conflict in the evidence at the trial, and the trial judge saw and heard the witnesses, being-better able to determine their credibility and the weight to be given to their respective testimony, the Appellate Court will not disturb the finding.</p> <p>2. New Trials—Newly Discovered Testimony.—Evidence, not conclusive in its nature, is not such as the law requires to make the granting of a new trial on account thereof, imperative.</p>

<p>1. Injuries to the Person—Risks Incident to an Employment.— When the injury sustained by an employe of a railroad company is one incident to the ordinary risks of his employment he has no right of action.</p> <p>2. Limitations—When Not a Good Defense.—When an additional count to a declaration is filed after the statute of limitations has run as to the cause of action stated in the original declaration and such additional count is but a restatement of the same cause of action the statute of limitations is not a good defense.</p> <p>8. Fellow-Servants—When the Master is Not Liable.—When one servant is injured by the negligence of another servant, where they are co-operating with each other in a particular business in the line of their employment, or their duties are such as to bring them into habitual association so that they exercise a mutual influence upon each other, promotive of proper caution, and the master is guilty of no negligence in employing the servant causing the injury, the master is not liable.</p> <p>4. Same—Application of the Law.—A freight train was standing upon the track at a station, and one of the brakemen in charge of it, in turning a switch so as to allow a passenger train to pass by, improperly turned and adjusted the same so as to turn the passenger train upon the same track on which the freight train was standing, by reason of which a collision occurred in which the engineer of the passenger train was killed and the fireman seriously injured; it was, held that the brakeman of the freight train who turned the switch, and the engineer and fireman of the passenger train, were f el low-servants within the meaning of the law.</p>

<p>In Equity. Bill for a new trial. Appeal from the Circuit Court of Carroll County; the Hon. John C. Carver, Judge, presiding.</p>

<p>1. Verdicts—Upon Conflicting Evidence.—Where there is a conflict of evidence, the jury and trial judge, having seen and heard the witnesses, are better qualified than the judges of the Appellate Court to judge of their credibility, and the trial judge having approved of such finding, the verdict will not be disturbed on account of the state of the evidence.</p> <p>2. Error—Without Injury—Erroneous Admission of Evidence.— Where improper testimony has been allowed to go to the jury, if in view of the instructions of the court, the jury could not have been misled, the error is harmless.</p>

<p>Bastardy Proceedings.—Appeal from the County Court of Marshall County; the Hon. E. D. Richmond, Judge, presiding.</p>

<p>Assumpsit, on an insurance policy. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>Mandamus, against highway commissioners. Appeal from the Circuit Court of Stark County; the Hon. Leslie D. Puterbaugh, Judge, presiding.</p>

<p>Bill for Partition.—Appeal from the Circuit Court of Iroquois County; the Hon. Robert W. Hilscher, Judge, presiding.</p>

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

Assumpsit, on a promissory note. Appeal from the County Court of Peoria County; the Hon. R. H. Lovett, Judge, presiding. Service upon the surety and cause tried as to him alone. Pleas, general issue; signature obtained by fraud and circumvention; drunkenness and failure of consideration; trial'and verdict for defendant; appeal by plaintiff.

Trespass on the Case.—-Death from negligent act. Tried in the Circuit Court of Kankakee County; the Hon. John Sewall, Judge, presiding. Verdict and judgment, $1,000, for plaintiff. Appeal by defendant.

<p>1. Waiver—What is not, of Provisions in a Trust Deed.—Where it is provided in a trust deed that if the legal holder of the notes secured by it should advance or expend any money to save the premises from sale for taxes or to redeem the same, that all moneys so expended should be a charge upon the premises, and be secured by said trust deed in the same manner as the principal sum. such provisions are not waived by the.party expending money for such purposes, or granting an extension of time to the party in default.</p> <p>2. Solicitor’s Fees— When th-eSolicitor is a Party Complainant.— The fact that a solicitor is named as trustee in a trust deed and is made a party complainant in a proceeding to foreclose the same, does not prevent the'court from allowing him a fee as solicitor for his services in foreclosing it.</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Stark County; the Hon. Leslie D. Puterbaugh, Judge, presiding.</p>

<p>Replevin, with a count in- trover. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge, presiding.</p>

<p>1. Scire Facias — On a Forfeited Recognizance—What is a Defense.—A plea by a surety ón a forfeited recognizance in a preliminary examination, that he signed the same with the express understanding and agreement between himself and his co-sureties and the justice of the peace before whom such examination was had, that such recognizance should not be accepted or approved by such justice, nor be used- or held in any manner to bind him until signed by another person whose name was therein inserted as an obligor, but who in fact never signed the same, presents a good defense to the scire facias.</p> <p>3. Sureties—May Plead That Others Were to Sign.—When it is agreed by and between the sureties named as such in a recognizance taken by a justice of the peace in a criminal proceeding, and the justice, that the said recognizance should not be accepted or approved by him until another person, also named in the body of the recognizance, should sign the same as co-surety, the fact that such person did not sign may be shown in defense.</p>

<p>Trespass, for the wrongful taking of goods. Appeal from the Circuit Court of Carroll County; the Hon. Jambs Shaw, Judge, presiding.</p>

<p>Petition in Probate.—Appeal from the Circuit Court of Kendall County; the Hon. Clark W. Upton, Judge, presiding.</p>

<p>1. Witnesses—Credibility a Question for the Jury.— The credibility of witnesses is a question for the jury.</p>

<p>1. Limitations—Actions to Recover Money Paid Under Decrees Afterward Reversed.—As to actions to recover money paid under decrees afterward reversed, the statute of limitations commences to run from the time when the decree is reversed, and the right to bring the action for its recovery is complete.</p>

<p>1. Mortgages— Liability of Grantee of Mortgagor.—A grantee is only liable personally for the amount of a mortgage on land conveyed to him, when he expressly assumes and agrees to pay the same either by accepting a deed containing a provision to that effect or in some other proper manner.</p> <p>2. Same—Grantee of Mortgagor Only Liable for Amount Assumed.— If a grantee only assumes a specified amount of mortgage indebtedness he can not be held personally liable for the whole of a larger mortgage on the land.</p> <p>3. Same—A Junior Mortgagee Can Not Compel Foreclosure of a Prior Mortgage.—A junior mortgagee can not compel a foreclosure of a prior mortgage. It is the privilege of the holder of the prior incumbrance to foreclose it or not, as he sees fit.</p> <p>4. Attorney’s Fees—An Attorney Can Not be Allowed Fees in His Own Case.—It is against public policy to allow an attorney fees for his own professional services in his own cause.</p>

<p>Trover.—Appeal from the Circuit Court of Whiteside County; the Hon. James Shaw, Judge, presiding.</p>

<p>1. Mortgages—Gave Given Property by Minor Child of Mortgagor Not a Charge Against Mortgagee.—A person who has given a mortgage on cattle can not recover for grain fed or stabling given such cattle, nor for the services of his minor child, living in his family and not then emancipated, in caring for such cattle, nor-can he by emancipating the son after the grain is furnished and the services rendered, make that a charge against the mortgagee which was not a charge against him when the grain was furnished and the services rendered, and thereby give the son a cause of action which he did not have when he rendered the services.</p>

<p>1. Findings by the Court—Not Sustained by the Evidence.—The court reviews the evidence, and holds that it does not sustain the finding of the trial court that appellee repudiated and had a lawful right to repudiate the contract made in his name by his daughter, and therefore reverses the judgment.</p>

<p>Petition in Probate. — Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>Petition, for rule on sheriff as to distribution of the proceeds of a sale. Error to the Circuit Court of Livingston County; the Hon. Charles R. Starr, Judge, presiding.</p>

<p>1. Judgments—On Money Demands.—If a judgment purports to be final and is given upon a money demand, the amount of the recovery must be stated in it with certainty and precision.</p> <p>2. Same.—Insufficient Record of.—A record in the following language: “ It is therefore ordered by the court that judgment enter herein on the verdict of the jury formerly entered in this cause,” is not a judgment.</p>

Replevin.—Appeal from the Circuit Court of Peoria County; the Son. Thomas M. Shaw, Judge, presiding; finding and judgment for plaintiff under a count in trover for $5,041.98.

<p>1. Interest—When Recoverable.—Under our statute interest is not recoverable unless there is money due and unless also it has been withheld by an unreasonable and vexatious delay of payment,</p> <p>2. Cross-Examination—As to Inexperience in a Suit for the Value of Professional Services.—On the trial of an action to recover for legal services brought by an attorney having but two years experience, where witnesses for plaintiff testify to the usual, ordinary and customary compensation for such services, it is proper on cross-examination to ask whether they regard the sum they name, the usual, ordinary and customary compensation for the services of an attorney having that limited experience.</p> <p>3. Same—Of A ttorneys Testifying as to Value of Professional Sen-ices.—In an action brought by an attorney for legal services in the trial of an action at law, where a witness testified that he was an attorney on the opposite side of the question, stating the work done by him and the amount charged by him for such services, on cross-examination it is proper to show by him, whether he considers the sum charged by him a usual and ordinary fee for the services rendered.</p> <p>4. Instructions—An Instruction Given for a Plaintiff Held to Misstate the Defense.—Where, in a suit to recover the value of services, the defense is they were performed under an agreement that they should be rendered to show defendant plaintiff’s ability, with a view to his permanent employment by defendant, it is error to instruct the jury at the request of plaintiff that the defense is, plaintiff was to perform the services for nothing.</p>

Trespass on the Case, for personal injuries. Tried in the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding. Verdict and judgment for plaintiff for $1,500; appeal by defendant.

<p>1. Rewards—For the Arrest of Criminals.—A person who procures the arrest of a party for whom a reward is offered is entitled to the reward, notwithstanding the formal arrest is made by an officer upon his information.</p> <p>2. Claimants—Effect- of a Recovery by One upon the Other.—Where a sum of money is claimed by different persons, the fact that one of them sues for and recovers the amount does not affect the right of the others to sue for the same.</p>

<p>Assumpsit, for goods sold. Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding.</p>

<p>Bill to Construe a Will.—Appeal from the Circuit Court of Winnebago County; the Hon. John C. Carver, Judge, presiding.</p>

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

<p>1. Promissory Notes—Founded on Illegal Contracts—Innocent Purchasers.—Where a statute has declared that the illegality of a contract shall make the note founded upon it void, such note will be void in the hands of an innocent purchaser for value before maturity, but unless so expressly declared by statute, mere illegality of consideration will be no defense to a note in a suit brought by a bona fide holder to whom it has been assigned for value before maturity.</p> <p>2. Same—For Fines Imposed, etc.—A plea to a declaration on a promissory note, averring that the payee therein named and who was the assignor thereof, was at the time of the making of the same the state’s attorney of Peoria county, that the maker of said note was indicted and fined for selling intoxicating liquors contrary to law, and ordered to" stand committed until the said fine and costs were paid, and that the said fine and costs were the only consideration for which the said note was given and was illegal, etc., is insufficient.</p>

<p>Indictment, for a misdemeanor. Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>Assignment Proceedings.—Appeal from the County Court of Kendall County; the Hon. Henry S. Hudson, Judge, presiding.</p>

<p>1. Verdicts—Sustained try the Evidence.—The court discusses the evidence, and. concludes that the jury were justified in their finding, and that it can not be disturbed on the ground that it is not supported by the evidence.</p> <p>2. Evidence—Of Former Insurance in a Suit on an Insurance Policy.—In a suit on an insurance policy, the court holds that the ruling of the trial court in admitting evidence of former insurance was proper in view of the testimony in regard to the way insurance had generally been effected by the parties.</p>

<p>1. Findings by the Court—Not Sustained by the Evidence.—The court reviews the evidence and holds that there is a clear want of that degree of proof required by law to warrant the finding and judgment of the court.</p> <p>2. Error—Without Injury.—Where a witness testified to all the facts he could properly have been permitted to answer in response to certain questions, objections to which were sustained by the court, the error, if any, is harmless, and furnishes no ground for complaint.</p>

<p>Debt, on a bond. Error to the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>Bill, for relief against the directors of an insolvent corporation. Appeal from the Circuit Court of Winnebago County; the Hon. John C. Carver, Judge, presiding.</p>

<p>1. Administration of Estates—Are Agreement Between Heirs as to, Held Revocable.—The heirs of a deceased person authorized one of their number to collect all debts due the estate on account of a particular business conducted by the deceased in his lifetime, and to take full charge, management and control of such business, the agreement to continue in force for one year. Held, that the contract constituted such heir the agent of all the heirs, but that they or any of them could revoke it at any time before its complete execution, and that the appointment of an administrator at the instance of one of them effected such revocation.</p>

<p>1. Presumptions—From Taking Notes, as to Whom, Money is Loaned.— Where the question for decision is, to whom was a sum of money in fact loaned, to a corporation or to its president in person, the fact that the lender took from said president his individual notes for the money, and afterward renewed the same, makes out a prima facie case that the loan was to him in person and not to the corporation.</p>

<p>1. Mortgages—Force and Effect after Foreclosure and Sale—Deficiency.—Where there is a deficiency arising from a sale of premises under a decree of foreclosure, and such deficiency is paid by the mortgagor, the mortgage upon which the decree is based ceases to have any further force and effect other than to support the outstanding certificate of purchase.</p> <p>2. Foreclosure—Force and Effect of the Certificate of Purchase.— The effect of a certificate of purchase under a decree of sale in foreclosure proceedings, is to extinguish the mortgage and create a new form of lien of a higher degree.</p> <p>3. Equity—Will Not Relieve a Party from the Results of His Own, Inattention.—Courts of equity will not, in subsequent and separate suits, interpose to relieve parties to a judicial proceeding from the results of their own inattention to such proceeding while pending, and proper opportunity is afforded at such time to have their rights judicially ascertained and declared.</p>

<p>1. Pleading—What a Demurrer Admits.—It is an elementary rule of pleading that a demurrer admits only such facts as are well pleaded, but it does not admit the conclusions of the pleader drawn from the facts stated in the pleading.</p> <p>2. Same—To be Construed Against the Pleader—Conclusions, etc.—A pleading is to be construed most strongly against the pleader, and by the application of the rule that a demurrer does not admit the conclusions of the pleader, if several reasonable conclusions may be drawn from the facts stated, the conclusion most unfavorable to the pleader will generally be accepted.</p> <p>3. Warranty—Promise to do a Particular Thing in the Future.—A statement in an application for insurance is held to be a mere promise to do a particular thing in the future, which, if not performed, would subject the promisor to such liability as might follow the breach, but which would not have the effect of rendering the entire contract nugatory, nor be regarded as a warranty of any existing fact.</p> <p>4. Fraud—Is Never Presumed.—Fraud is never presumed; it must be alleged and proved; it can not be presumed from the conclusions of the pleader.</p> <p>5. Insurance—Protection from Other Insurance.—If insurance companies would protect themselves from other insurance they must do so by their contract.</p>

<p>Assumpsit, on a policy of insurance. Trial in the Circuit Court of Marshall County; the Hon. Thomas M. Shaw, Judge, presiding. Verdict and judgment for defendant. Appeal by plaintiff.</p>

<p>1. Cognovit—Caption Not an Essential Part.—The caption, of a cognovit upon which a judgment is confessed in'vacation is not an essential part of the instrument, and if defective, may be treated as surplus-age.</p> <p>2. Judgment by Confession—Election of Time by Holder of Note.— Where a warrant of attorney authorizes the confession of a judgment upon a promissory note, either in term time or vacation, it is for the holder of the note to elect when he will confess the judgment.</p> <p>3. Same—On a Partnership Note.—Where the firm name is signed to a warrant of attorney to confess a judgment by a partner not authorized to do so, a judgment entered under such power is not void but voidable only, and the other partners affected thereby, alone can object.</p>

<p>Bill, for receiver and relief. Appeal from the Circuit Court of Henry County; the Hon. Hiram Bigelow, Judge, presiding.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>1. Covenants—Breaches—Claims of Patentees—Right tc Use Fixtures. —The right of a patentee to the use of a machine which, as a fixture, passed to the grantee in a deed of conveyance, is a burden upon the grantee’s right to use the machine and a breach of the covenant against incumbrance.</p>

<p>Bill to Set Aside a Conveyance.—Error to the Circuit Court of Carrol County; the Hon. James S. Baume, Judge, presiding.</p>

<p>1. Contracts—A Contract Construed.—The court states and construes the articles of copartnership of the North Kankakee Improvement Association.</p> <p>2. Same—Claiming Under One Part, and Repudiating the Whole. — A party can not claim under a particular clause of his contract and at the same time repudiate the contract.</p>

<p>1. Decrees—Power of the Appellate Court Over.—Where it appears that the finding and decree of the trial court is unsupported by the evidence, it is the duty of the Appellate Court to set it aside.</p>

<p>1. Decrees—Requisites in Partition.—In suits for the partition of real estate, it is important that the decree should clearly define, declare and dispose of all the interests and claims to the premises in order that purchasers at the sale may not be prevented from bidding, because the court has inadvertently or otherwise omitted certain essential points in its decree.</p> <p>2. Notice—Of Reinstatement of Cases upon Reversal—Sufficiency.— Where the title to real estate is involved, the interest of the parties demand that no questions as to the regularity of the service of the notice of reinstating the case after a reversal by the Supreme Court, should be left for future controversy or discussion.</p>

<p>1. Demurrers—General and Special.—Where the allegations of a bill for divorce, on the ground of extreme and repeated cruelty, are sufficient, although defectively stated, to bring the case within the provisions of the statute, a general demurrer is properly overruled.</p>

<p>1. Appeals and Errors—Right of Appeal is Purely Statutory.— The right of appeal does not exist at common law, but is purely and strictly statutory, and when not granted by statute it does not exist.</p> <p>2. ' Same—A Beneficial Plaintiff Can Not Appeal in His Own Name. —The right of appeal is granted by the statute only to the parties to a suit, and a beneficial plaintiff is not authorized to appeal in his own name.</p>

<p>1. Negligence—Failure of Person About to Cross a Railroad Track to Look and Listen Not Necessarily Negligence.—Whether a person about to cross a railroad track is guilty of negligence if he does not look and listen is a question of fact for the jury, to be determined from a consideration of the circumstances of the particular case, and it can not be held as matter of law that a person who fails to look and listen under such circumstances, is guilty of negligence.</p> <p>2. Verdicts—Dufy of a Court of Appeal as to.—While it is the duty of this court to consider the evidence and determine, when the question is properly presented, whether a verdict is manifestly against the weight of the evidence, it is not the duty or right of the court to usurp the province of the jury, and set aside their verdict merely on the ground that the court, had they been sitting as jurors, would have found differently.</p> <p>3. Railroads—Running Trains at Dangerous Rate of Speed.— Whether a railroad company, at the time of an accident, was running a train at a dangerous and unreasonable rate of speed, is a question for the jury, to be determined from a consideration of the circumstances of the particular case.</p> <p>4. Same—Flagmen at Crossings.—Although there may be no evidence of any ordinance requiring a flagman at a certain railroad crossing, and therefore no absolute duty incumbent on the railroad company to have one at such crossing, yet the fact that there was no flagman at such crossing is proper to be considered by the jury in passing on the question of the alleged negligence of the company in operating its road.</p> <p>5. Evidence—Statement of Engineer That He Could Have Stopped Train in Time to Avoid Injury, Held Admissible.—An engineer testified that when about 350 feet from a crossing he saw a man from twenty to forty feet from the tracks, approaching the tracks, and that at the rate the train was running he could have stopped it within a space of fifty feet. Held, that the evidence was competent under a declaration alleging that the railroad company, by its servants, so carelessly managed its locomotive engine and train, in driving the same at such high and unreasonable rate of speed, that by and through the negligent and improper conduct of the defendant, the injury sued on was caused.</p>

<p>1. Jurisdiction—Of Inferior Tribunals—Must be Shown by Their Records.—In a proceeding by certiorari to review the action of an inferior tribunal of limited jurisdiction, the reviewing court is limited to inspection of the record of the inferior tribunal, and the record must affirmatively show jurisdiction.</p> <p>2. Schools—Changes in School Districts—Trustees' Records Must Show Jurisdictional Facts.—The provision of the school law that, after school trustees shall consider a petition to change districts in their township, no objection shall be made to its form, and that thereafter their action shall be prima facie evidence that all the formal requirements of the law have been complied with, does not dispense with the necessity of their records showing the jurisdictional facts, upon the existence of which their power to act depends.</p> <p>3. Same—School Trustees May Amend Their Records.—Where the official action of a board of school trustees, which is the subject of a proposed amendment, has, in fact, been had, but by reason of some accident or oversight, or for some other cause, has been omitted by the clerk from the record of the proceedings of the board, the record may be amended to correspond with the facts.</p> <p>4. Samé—Changes in School Districts—Amendments of the Records of School Trustees—Appeals to County Superintendent.—A petition was presented to a board of school trustees asking for a change in certain school districts, and the petition was considered and the request granted, but the record of the proceedings of the trustees, as made up by the clerk, was defective in important particulars. At a later date, such records were amended by a vote of the board; On writ of certiorari to determine the legality of the proceedings of the board, it was contended that, the amendment of the record being retroactive, operated to cut off all right of appeal to the county superintendent of schools, and hence, was improper. Held, that this would be a serious objection if it appeared that any one entitled to appeal was prejudiced, but that, in the case under consideration, it could have no weight, as no one had been deprived of the right to appeal by the action of the trustees in amending their records.</p> <p>5. Same—Liability of School Directors for Costs.—The board of directors of a school district, seeking by writ of certiorari to annul the action of the trustees of schools of their township in reference to a change in the boundaries of the district, are not liable for costs.</p> <p>6. Practice— Waiver of Objections.—Where the record does not show an objection in the trial court to the introduction of a record amendatory of the records of a board of school trustees, objections, if any, are waived.</p>

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

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

<p>1. Banks and Banking—Checks Deposited as Cash.—Where checks are indorsed and deposited in a bank as cash they become the property of the bank, and the depositor can not follow them or their proceeds into the hands of a third person, who receives them in good faith in the usual course of business.</p> <p>2. Negotiable Instruments—Indorsements “for Collection.”—An indorsement “ for collection to the credit of * * * ” is not a restrictive indorsement, and its effect is precisely the same as that of a blank indorsement.</p>

<p>1. Mortgages—A Judgment Creditor has No Right to Rents and Profits in the Blands of a Receiver Appointed on a Bill to Foreclose.— A judgment creditor of a mortgagor is not entitled to payment from rents and profits in the hands of a receiver appointed on a bill to foreclose the mortgage, and has no right to complain of an order directing their application to the payment of taxes. ■</p>

<p>1. Corporations—Execution of Judgment Note—Authority Presumed.—Where the general financial manager of a corporation makes a judgment note in the course of business, it will be presumed, without any showing of a resolution by the board of directors, that he was empowered to execute the note and warrant of attorney.</p> <p>3. Same—Seal Not Necessary to Validity of Judgment Note.—The fact that the corporate seal is not attached to a judgment note executed by an officer of the corporation, in the name of the corporation, does not affect the validity of the note.</p> <p>3. Judgments by Confession—Presumptions in Favor of.—Where a judgment is confessed in open court, it must be presumed that the authority to confess was judicially passed upon by the court.</p> <p>4. Same—Who May Object.—A third person has no right, in the absence of fraud, to object to a judgment by confession, on the ground that it was confessed without any authority to do so.</p>

<p>1. Words and Phrases—“At the Time of the Accident.”—An instruction. in a personal injury case requiring ordinary care “ at the time of the accident” is not objectionable as restricting the exercise of ordinary care to the moment of- the injury, but should be held to refer to the entire transaction.</p> <p>2. Negligence—An Instruction Held Erroneous as Allowing Contributory Negligence.—In a suit against a street railroad company for alleged negligence in causing the death of a child, an instruction was given informing the jury that although they might believe from the evidence that the deceased, just prior to her death, was placed in a dangerous situation through her own or her mother’s negligence, yet if they further believed from the evidence that her dangerous situation might by the exercise of ordinary care have been known to an employe of the defendant in charge of the car causing the injury, and that, after such dangerous situation could have been known by said employe by the exercise of ordinary care, he could have avoided the injury to said child by the exercise of ordinary care, then the jury should find the defendant guilty. Held, that the instruction was erroneous, in that it relieved the mother of the deceased from the results of contributory negligence on her part.</p>

<p>Bill, for an accounting and a receiver. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>1. Negligence—Assumed Hazard—Improper Use of Trap Doors.— The court holds that no negligence on the part of appellant, as a basis of recovery in this case, can be predicated upon the mere existence or location of certain trap doors, nor upon the use of them in the manner in which they were customarily used in the course of business, and that as to such existence, location and use the doctrine of assumed hazard applies, but that the jury were warranted in finding that there was here a use which was not customary or usual in the course of the business, and in holding appellant liable for the results of such use.</p> <p>3. Same—Failure to Look Where One is Stepping Not Necessarily Negligence.—There is no absolute rule that a failure to look where one is stepping is negligence as a matter of law, and where, under the circumstances of a particular case, reasonable minds might reach different conclusions on that question, it must be submitted to the jury for determination.</p> <p>3. Pleading—Defects Cured by Verdict.—Where there is any defect, imperfection or omission in any pleading which would be fatal on demurrer, yet if the issue joined is such as to require, on the trial, proof of the facts so defectively stated or omitted, and without which it is not to be presumed that the judge would have directed or the jury have given the verdict, such defect, imperfection or-omission is cured by the verdict.</p>

<p>1. Instructions—Should Apply to the Evidence.—The court discusses the evidence and holds that an instruction given on behalf of appellee is erroneous because not justified by the evidence.</p> <p>2. Burden of Proof—Of Joint Liability.—Where a defendant denies joint liability as a partner, under oath, the burden of proof is on the plaintiff to establish such joint liability.</p>

<p>1. Appellate Court Practice—Assignment of Errors— In this case no errors were assigned on the record or attached thereto, as required by the rules of the court, but after appellee’s brief was filed appellant obtained leave to assign errors, and filed a paper containing an assignment of error. Held, that this was not a compliance with the rules, and that the appeal might properly be dismissed.</p>

<p>Debt, on a bond. Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>Bill, for an injunction and general relief. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>A ssnmpsit, for money deposited in safety deposit vaults. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>Bill, to cancel an insurance certificate. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding.</p>

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

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

<p>Bill for an Injunction—Appeal from the Circuit Court of Wayne County; the Hon. Edmund D. Youngblood, Judge, presiding.</p>

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

<p>1. Alimony—Temporary—Discretion of the Court.—The allowance of temporary alimony rests largely in the discretion of the court.</p>

<p>1. Special Assessments—Whom Contractors Must Look to for Pay. —Under Sec. 49, Art. 9 of Chap. 94, R. S., entitled “Cities, Towns and Villages,” a person taking a contract for the construction of a public work, who agrees to be paid from moneys arising from special assessments on account of such work, can have no claim or lien upon the funds of the municipality, except those arising from the collection of the special assessment made for the work in question.</p> <p>2. Public Improvements — Without a Preliminary Ordinance. — When an improvement has been completed without an ordinance ordering it, a municipality has no authority to levy a special assessment for its payment.</p> <p>3. Cities and Villages—Void Ordinances—Re-assessments.—Where an ordinance has been passed directing a public improvement to be made and paid for by special assessment, in case of an insufficient description of the improvement, thereby making the assessment invalid, a re-assessment may be made, although the improvement has been completed between the times of passing the original ordinance and the ordinance providing for the re-assessment.</p> <p>4. Obdinances—May be Invalid in One Respect, etc.—An ordinance may be invalid in one respect and valid in all others.</p> <p>5. Same—For Special Assessments—Amendments.—When the origInal ordinance directing a special assessment proves defective and insufficient to support an assessment, if not absolutely void, it may be amended or the defect cured by a supplemental ordinance and a reassessment made.</p> <p>6. Same—Suits Under, for Special Assessments—When Prematurely Brought.—A contractor entered into an agreement with a city for the construction of a public work, containing a covenant, in substance, to the effect that he “ should have no lien upon the city in any event over and above the amount hereinbefore provided to be raised for said improvement by general taxation, if any, except from the collection of the special assessment ordered to be levied, assessed and collected by the city council for said improvement.” After the completion of the work, the court refused to confirm the assessment on account of an insufficient description of the. improvement. The city, then, on petition of the contractor, immediately took the initial steps to make a re-assessment, but before an ordinance for that purpose could be passed the contractor brought a suit to recover the amount, upon the ground that the city had exhausted its power and could not make a re-assessment. Held, that the city had power to order a re-assessment, and that no recovery could be had unless it refused or neglected to levy such re-assessment.</p>

<p>Claim in Probate.—Appeal from the Circuit Court of Clinton County; the Hon. George W. Wall, Judge, presiding.</p>

<p>1. Insurance—Suicide as a Defense in the Absence• of a Stipulation to that Effect.—When the policy or the constitution and by-laws of an insurance company contain no provisions qualifying the right to recover if the assured takes his own life, suicide, in the absence of fraud or collusion, is not a defense.</p> <p>2. By-Laws—Supreme Lodge Knights of Pythias.—A member of a subordinate lodge of the benevolent order of the Knights of Pythias is not bound by his contract of insurance to observe or be controlled by a by-law of said order, enacted by any law-making body other than the supreme lodge, and such supreme lodge can not delegate its power to make by-laws to the board of control of the order.</p> <p>3. Same—When Invalid—Improper Enactment.—The concurrence by the Supreme Lodge of the Knights of Pythias in the report of the board of control of a subordinate lodge embodying a by-law enacted by such board of control, does not constitute the enactment of a valid by-law of the order, by such supreme lodge, under a constitution requiring that all by-laws be read on three different days and passed by a yea and nay affirmative vote of a majority of all the members.</p> <p>4. Stipulation—Waiving Proof of By-Laws.—In an action upon a beneficiary certificate of the order of the Knights of Pythias, a stipulation made during the trialfor the purpose of relieving the defendant from the burden of producing the original by-laws and making preliminary proof, and that printed copies produced might be treated as authentic, does not admit the validity of such by-laws.</p>

<p>Trespass on the Case, for moneys misappropriated. Appeal from the Circuit Court of Franklin County; the Hon. Edmund D. Youngblood, Judge, presiding.</p>

<p>Trespass on the Case, for malicious prosecution. Appeal from the City Court of Alton; the Hon. B. H. Canby, Judge, presiding.</p>

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

<p>I. Contributory Negligence— Walking upon Defective Sidewalks. —A person with knowledge of the unsafe condition of a sidewalk is not necessarily guilty of contributory negligence in attempting to walk upon it, but with such knowledge is bound to exercise a greater degree of care than he would have been required to exercise without it.</p>

<p>Trespass on the Case.—Failure to make an examination of a mine. Appeal from the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding.</p>

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

<p>1. Fraud—A Question of Fact.—The question of fraud is one of fact for the determination of a jury.</p> <p>2. Partnership—Power Over Firm Property.—A partnership has the same power over the firm property that an individual has over his own property.</p> <p>3. Same—Debts to be Paid out of Firm Assets.—Partnership creditors are to be paid out of firm assets, when for any reason a court of equity comes into possession of its assets to administer upon them.</p> <p>4 Same—Misapplication of Firm Assets.—For one partner without the concurrence of his copartner to apply the assets of the firm in paying his individual debts is a wrong against the copartner, but not against firm creditors. The law recognizes no lien or equity in favor of firm creditors on the assets of the firm.</p> <p>5. Same—Application of Firm Property to Firm Debts.—Each partner has a right as against his copartners to have the firm property applied in payment of partnership debts.</p> <p>6. Same—Rights of Firm Creditors.—The payment of his individual debt by a partner without the consent of his copartners is a wrong that the non-consenting partner only may redress, in the absence of an intent to defraud creditors. A creditor of the firm, so long as the firm, whether solvent or insolvent, is in control of its assets, can not take it upon himself to redress the wrongs suffered only by the non-consenting partner.</p>

<p>1. Railroads — Fires Communicated by Locomotives.—Under the statute relating to fires communicated by locomotives, the burden is upon the railroad company to establish such facts as will excuse it from the consequences of these fires.</p> <p>2. Instructions—Based on a Statute, Bather Than on the Evidence. —The giving of an instruction, not so much dependent upon the evidence for its support as upon the statute under which the action is brought, is not such an error as calls for the reversal of the case.</p> <p>3. Statutes—The Statute Belating to Fires Communicated by Locomotives Construed.—The act of the General Assembly, approved .March 29,1869, relating to fires by locomotives (Hurd’s E. S. 1895,1206), provides a rule in reference to, and applies to uses and conditions of property existing before the construction of the railroad as well as to uses and conditions arising after its construction.</p> <p>4. Damages—To Beatty by Fires.—The measure of damages to realty by the destruction of fruit trees, fences, meadows, etc., as parts of such realty, resulting from fires communicated from locomotives, is the amount that such realty as a whole has been- lessened in value by the destruction of such parts.</p> <p>5. Appellate Court Practice—Changes, Theories, etc.—When both parties at the trial elect to pursue the same method of proof and ask for and have given instructions of the same character, an appellant can not have the case tried upon á different theory in the Appellate Court.</p>

<p>1. Damages—Fruit Trees Destroyed by Fire.—The measure of damages to fruit trees, meadows, etc., resulting from fire escaping from a locomotive, is the difference between the value of the land upon which such trees and meadows were situated, before and after the fire complained of.</p>

<p>1. Leases—Assignable at Law.—Under Section 15, Chapter 80, R. S., all leases are assignable by any instrument showing an intention to dispose of them, so as to give the assignee a right to sue upon them in his own name.</p> <p>2. Same—When an Approved Assignment Becomes a New Lease.— Two railroad companies, being desirous of securing a hotel at the intersection of their roads, leased a portion of the station grounds to G-., for a term of years, on which G. agreed to erect and conduct a hotel, and not to underlet without the written consent of the companies. The said companies agreed to stop their trains for meals at the hotel when the time of passing was suitable. The premises passed through several hands, by proper assignments of the lease, to which the consent of the companies was given, until one M. became possessed of them, and continued to conduct the hotel, but the appellant company ceased to stop its trains for meals and M. brought suit for a breach of the lease in this regard which resulted in a recovery. Held, that although the agreement to stop the trains might have remained personal to, the first lessee, by the assignment and consent thereto by the company, it became in effect a new lease for the unexpired portion of the term and the recovery was sustained.</p> <p>3. Evidence—Of Collateral Matters—Presumptions.—In a suit for damages resulting from the breach of a covenant in a lease by a railroad company, to stop trains for meals at a hotel, at the intersection of another road, it is error to permit witnesses to testify as to the number of persons stopping for dinner on one road and to draw a presumption from the fact that a certain number of persons traveling on the other road would also stop for meals at the same place.</p>

<p>1. Contributory Negligence—A Question of Fact.—The question as to whether a party has been guilty of contributory negligence, is one of fact for the determination of the jury.</p>

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

<p>Assumpsit, on contract for transportation. Appeal from the Circuit Court of Alexander County; the Hun. Joseph P. Robarts, Judge, presiding.</p>

<p>1. Practice—Absence of Evidence, etc.—In a trial by the court without a jury, a request to the court to hold the law under the evidence in a case to be that the plaintiff is not entitled to recover, takes the place of an instruction to find for the defendant in a case tried with a jury where there is no evidence to support a verdict for the plaintiff.</p> <p>2. Officers—Right to Take Rewards.—Where the duties of a public officer are fixed and his compensation declared by law, he can not be allowed to contract and sell his services for higher rates than the' law-gives him, and the courts will not aid Min in recovering extra compensation in the form of a reward for the apprehension of a criminal.</p>

Transcript, from a justice of the peace. Action to recover damages •for an injury to cattle by carriers. Appeal from the Circuit Court of Crawford County; the Hon. Silas Z. Landes, Judge, presiding.

<p>Trespass on the Case.—Damages on account of the erection of a viaduct. Error to the City Court of East St. Louis; the Hon. Benjamin R. Burroughs, Judge, presiding.</p>

<p>1. Pabties—Beneficiaries Under Simple Contracts.—When one is the party solely to be benefited by the performance of a simple contract, he may maintain a suit thereon in his own name, although not one of the contracting parties.</p> <p>2. Contracts—For the Benefit of Third Persons—Breaches.—Where one, for a sufficient consideration, enters into a contract with another, and, by the terms of the contract, undertakes to pay or perform to a third party, such party can maintain an action in his own name for a breach of such contract.</p>

<p>1. Trusts—Far Charitable Uses—Perpetuities.—A perpetual trust for a charitable use is not condemned by the law against perpetuities, as it does not create a perpetuity contrary to law.</p> <p>2. Same—Title Taken by the Trustees—Contingencies.—Under the provisions of a will bequeathing a fund to executors as trustees in trust, etc., the trustees take the legal title to such fund from the trust imposed, and if the contingency upon which the cestui que trust is to receive the fund does not happen, he takes no estate therein, and none passes to his legal representatives upon his death.</p> <p>3. Same—Expenses for the Preservation of the Fund.—A trust fund may be lawfully required to bear the necessary expenses for its own preservation.</p> <p>4. Trustees—Commissioners of McKendree College, Successors in Trust.—The Endowment Fund Commission of McKendree College is an agency of the college for the purpose of holding and managing all funds given or raised for the purpose of endowing such college, and as such, are capable of taking as successor in trust, all legacies for such purpose where the office of trustee created by the will becomes vacant.</p>

<p>1. Acknowledgments—Impeachment of.—The acknowledgment of a deed can not be impeached for anything but fraud, and in such cases the evidence must be clear and convincing beyond a reasonable doubt.</p> <p>2. Mortgage—On a Homestead, When Not a Nullity.—When the husband and wife join in a mortgage upon the homestead and the certificate of acknowledgment contains a release and waiver of the right of homestead the mortgage is not a nullity.</p>

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