Volume 75 — Illinois Appellate Court Reports

<p>1. Agency— Existence of, How Shown.—An agency can not be established by the declarations of the agent, no matter how publicly made.</p> <p>3. Same—Declarations of the Agent—When Admissible.—Before the declarations of an agent can be admitted as evidence, it must appear that, at the very time of making the declarations, he was transacting or doing something about the business of his principal, so that his acts and declarations become and form of themselves, a part of the res gestee.</p> <p>3. Same—Declarations of the Agent—When Binding upon the Principal—Admissibility.—The admissions and declarations of an agent do not, in general, bind the principal. To be admissible in evidence, they must enter into and form a part of the res gestee, in the nature of original and not hearsay evidence, and must be made not only during the continuance of the agency, but in regard to a transaction depending at the time.</p> <p>4. Same—Liability of the Principal for Malicious Prosecution.— When it is sought to charge a principal with malicious prosecution by the admissions or declarations of his agent, it must clearly appear that such admissions and declarations were a part of the res gestee, and that the agent was attending to the business of his principal at the time, and . that such business was the prosecution of person complaining.</p> <p>5. Malicious Prosecution—Effect of an Acquittal.—The record of an acquittal is competent only for the purpose of showing an end of the prosecution; it affords no evidence that the charge in question was preferred without probable cause, and its general admission without limitations is error.</p> <p>6. Same—Probable Cause a Question of Law.—Whether the facts proven in an action for malicious prosecution constitute probable cause for commencing a criminal proceeding against a party charged, is regarded as a question of law, to be governed by the instructions of the court.</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>1. Verdicts—When Not to be Disturbed.—When a jury has been fully instructed upon the theory of the unsuccessful party, and there is evidence upon which it might have found either way, this court will not reverse the judgment on the ground that the verdict is against the weight of the evidence.</p>

<p>1. Trials—Taking a Case from the Jury.—If the evidence with all the legitimate inferences which may be deduced from it. tends to support the plaintiff’s case, the case can not legally be taken from the jury.</p> <p>2. Same—Functions of Judge and Jury Defined.—When the evidence is conflicting the question as to what is credible is for the jury, and it is not within the province of the judge to weigh the evidence and ascertain where the preponderance is. His function is strictly limited to determining whether there is or is not evidence legally tending to prove the fact or facts affirmed.</p> <p>3. Negligence—Failure of Passenger on Street Car to Hold to Platform Bar.—It is not negligence per se for a passenger riding on the platform of a street car to omit to avail himself of the platform bar, to prevent falling off.</p> <p>4. Instructions—Should he in Writing.—When a peremptory instruction is given to find for one of the parties, it is the better practice to put the instruction in writing.</p> <p>5. Bills of Exceptions—Effect of Omission of Date and Formal Conclusion.—A bill of exceptions was signed and sealed by the judge who presided at the trial and was filed within the time limited by the court, but it did not appear when it was signed, and it had no formal conclusion. Held, that it must be presumed that it was signed before filed, and that as it purported to be a bill of exceptions the omission of a formal conclusion, although not good practice, did not invalidate it.</p>

<p>1. Corporations—Power of, Outside of State Granting Charter.— There is no legal obligation on any State to permit a foreign corporation to transact business within its limits, and when permission is granted so to do, whether by tacit consent of the State or by virtue of an express statute, the basis of the permission is interstate comity; and for the State to permit a foreign insurance company to declare a forfeiture of a policy of insurance in a manner prohibited by the law of the State of its creation and to the prejudice of a citizen of this State, is not required by any consideration of interstate comity, and such a forfeiture will not be enforced.</p> <p>2. Contracts—Place of.—Where an application for insurance was forwarded to New York and there accepted, and the policy was there issued and returned to this State for delivery, and the premiums and the amount insured were, by the policy, expressly made payable in New York, authorities are not wanting in support of the proposition that New York is to be regarded as the place of the contract.</p> <p>3. Evidence—Of the Reception of a Letter.—Evidence of the mailing of a letter properly addressed and stamped to a person known to be doing business in a place where there is established a regular delivery of letters, is prima fade proof of the reception of the letter by the person to whom it was addressed.</p> <p>4. Same—Of the Delivery of a Letter—What is Necessary.—The placing in the mail of an envelope properly stamped, is not even presumptive evidence of the delivery of the same, unless it was properly addressed, and if the evidence shows that a notice was placed in an envelope properly stamped and mailed, unless the evidence further shows that the envelope was properly addressed to the person for whom it was intended, such evidence should be wholly disregarded.</p> <p>5. Conflict of Laws—The Law of the Forum Governs as to Evidence.—A. section of a statute which merely prescribes a rule of evidence can have no force outside of the State adopting it, as the law of the forum governs as to pleading and evidence.</p>

<p>Replevin.—Appeal from the Circuit Court of Cook County: the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>Bill, to impeach a settlement. Appeal from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding.</p>

<p>1. Benefit Societies—How Assessments Must be Made—Burden of Proof us to.—Assessments by a benefit society must be made in accordanee with the laws of the society, and where such a society defends against the payment of a certificate on the ground of the non-payment of an assessment the burden is upon it to prove that the assessment was made in accordance with the provisions of its laws, that the required conditions existed when the assessment was made and that it was not paid.</p> <p>2. Same—Evidence of the Validity of Assessments.—The fact .that an assessment on the members of a benefic society was made by the proper officer of the society is not prima facie evidence of the validity of the assessment.</p> <p>3. Same—Can Not Both Admit and Deny Payment of an Assessment. —A benefit society can not be heard to say that an assessment was paid, for the purpose of precluding inquiry as to its validity, and that it was not paid for the purpose of enforcing a forfeiture. It must take one position or the other.</p> <p>4. Same— Waiver of Forfeiture of Membership.—The retention by a benefit society of money paid by a member in settlement of an assessment amounts to a waiver of the right of forfeiture, if such right existed.</p> <p>5. Same—Waiver of Proofs of Death.—Where the by-laws of a benefit society provide that the subordinate lodge shall forward notice of death of beneficiary members, and that proper blanks for proof of death shall thereupon be furnished, a failure to forward the notice and to furnish the blanks will dispense with formal proofs of death.</p> <p>6. Same—Forfeiture of Membership—Burden of Proof of.—In a suit on a benefit certificate the defense of forfeiture for non-payment of an assessment is an affirmative one, and the burden of proving it is on the defendant.</p> <p>7. Forfeitures—Are Not Favored by the Law.—Forfeitures are not regarded with favor, and a party who insists upon declaring a forfeiture must make clear proof and show that he is entitled to make such declaration.</p>

<p>1. Negotiable Instruments—Aw Indorsement Held to Have Been Unauthorized. —The court discusses the evidence and concludes that the agent of appellants indorsed the note sued on in this case without authority and without any consideration moving to appellants but solely as an accommodation, and that appellants are not liable on account of said indorsement.</p>

<p>Motion, to vacate a judgment by confession. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>1. Evidence—Of a Breach of the Conditions of a Bond.—Where a suit is brought on a bond for the payment of money in installments, for a breach of the condition by non-payment of the installments, the plaintiff can not recover without proof of such breach, and the mere introduction of the bond does not make ajprima facie case. And the rule is the same whether the suit is at law or in equity.</p>

Transcript, from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Statement of the Case.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Statement oe the Case. Appellants were engaged in the business of general teaming. On July 9,1894, they were, by their servant, Wallace, driving a team of horses attached to a heavy oil-tank wagon westward on Van Burén street.

Assumpsit, on a guaranty. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Statement of the Case. This suit was brought by appellee, Harris, against appellant, McDonald, to recover certain rent, claimed to be due on a lease from Harris to one Hogan, which, it is claimed, McDonald guaranteed. The lease covered premises in the city of Chicago. The term was one of five years beginning on the first of May, 1891.

Assumpsit, for attorney’s fees. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Statement op the Case. This action was brought by appellees to recover for services as attorneys at law and for disbursements made in conducting several suits in North Dakota, which suits grew out of an attachment of the goods of Gillett Bros., upon a debt due from Gillett Bros, to appellants.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Statement of the Case. On December 12, 1893, appellee was injured by a train of appellant at the crossing of its tracks and Laflin street, in the city of Chicago. Two theories of fact are presented as to the occurrence.

Trespass on the Case, against a railroad for taking up a mileage ticket. Appeal from the County Court of Cook County; the Hon. Wm. T. Hodson, Judge, presiding. Statement of the Case. Appellee purchased a mileage ticket of the appellant railroad company. It was, by direction of appellee, issued in the name of J. L. Brown as purchaser. Appellee presented it for his fare as a passenger upon a train from St. Paul, Minnesota, to Chicago.

Creditor’s Bill.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Statement oe the Case. Oh December 30, 1896, the Plano Manufacturing Company, complainant in the suit below, filed its bill in chancery, setting up a judgment obtained against John B. Amphlett, T. L. Amphlett and T. G. Amphlett, and seeking to subject certain property to a satisfaction of same.

<p>1. Master and Servant—Master is Bound to Furnish a Reasonably Safe Place to Work.—A master is bound to furnish a reasonably safe place for his servant to work, and if he does not he is liable, unless the servant knows, or by the exercise of ordinary care should know, the hanger to which he is exposed.</p> <p>2. Same—Whether Duty of Master to Furnish a Safe Place to Work has been Complied With, a Question for the Jury.—In a suit by an administrator to recover damages for the death of his intestate, alleged to have been caused by defendant’s negligence, this court holds that whether the placing of a beam and tackle, used by deceased in his work, as it was placed, made a reasonably safe place for deceased to work, was a question of fact for the jury to determine from all the evidence.</p> <p>8. Same—Servant is not Bound to Test Appliances Furnished Him.— A servant is not bound to investigate and test the fitness and safety of appliances furnished to him by his master.</p> <p>4. Same—Failure of Master to Furnish Safe Place to Work—Negligence of Fellow-Servant not an Excuse.—It is the duty of a master to furnish his servant a safe place to work, and if a failure to perform this duty results in injury to a servant the rule of non-liability on the part of the master for negligence of a fellow-servant of the servant injured, if there was such negligence, has no application.</p> <p>5. Contributory Negligence—A Question for the Jury.—Whether a person who has been injured through the alleged negligence of another was guilty of contributory negligence is a question of fact for the jury, and in this case the court thinks that the evidence justified the jury in finding that there was no contributory negligence.</p>

<p>1. Wills—Jurisdiction of Chancery as to Contest is Statutory, and the Statute Must be Strictly Construed.—The jurisdiction of chancery in •the contest of wills is statutory, and the statute must be strictly construed. It is not a statute of limitation, but confers a new right or privilege which did not exist before its passage, and unless the bill is filed within three years of the probate of the will, or such filing excused by the letter of the . statute, the court has no jurisdiction.</p> <p>2. Same— Who May Contest by Bill in Chancery. —The privilege to contest a will by bill in chancery is given only to ‘ ‘ persons interested,” which this court holds must be persons who were directly interested at the time of the probate, or who became interested, either within three years of the probate or within the time allowed to some person under disability under the saving clause of the statute.</p> <p>3. Same—Right to Contest is a Personal Privilege and Does Not Survive.—The right to contest a will by bill in chancery is a personal privilege on which the person to whom it is given, or some one in his behalf, must act, and does not descend to his heirs or survive to his administrator.</p>

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

<p>1. Evidence—Continued Use of Original Pass Booh as Evidence of Liability of Banking Firm Claimed to Have Been Dissolved.—In a suit against persons alleged to have been partners in the banking business for money claimed to have been deposited with them, defended on the ground of the dissolution of the partnership, plaintiff proved the partnership, that the firm issued him a bank book and that transactions with the bank, both before and after the alleged dissolution, were entered in such book at the bank by the clerk. Held, that the book was admissible in evidence.</p> <p>2. Partnership—Notice of Dissolution of.—In a suit against a partnership, defended on the ground of the dissolution of the partnership, the court holds that the partnership continued as to the plaintiff until it is shown that he had notice of its dissolution.</p> <p>3. Banks and Banking—Discontinuance of Business Waives Notice or Demand by Depositors.—When a bank discontinues the banking business it waives the necessity for a notice or demand by the depositor for his money before he becomes entitled to sue therefor. By closing its doors and ceasing the banking business it says in effect that it will not pay, and the law will not require a vain and fruitless thing to be done.</p> <p>4. Trials—When Peremptory Instructions Should Be Ashed for.— This court will not review the action of the trial court in refusing to give an instruction directing a verdict for the defendant where the instruction is asked for along with others on issues of fact submitted to the jury.</p> <p>5. Burden of Proof—As to Notice of the Dissolution of a Partnership.—In a suit against members of an alleged partnership, defended by certain members on the ground that they had retired from the firm, the burden of proof, the plaintiff having shown the existence of the partnership, is on such defendants to show that the plaintiff had notice of the dissolution, before they can escape liability.</p>

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

<p>1. Contracts—Offers Accepted catd Acted Upon.—An undertaking of one person to employ another for one year, when accepted and acted upon by the employe until he is discharged, possesses the mutuality essential to a contract and is binding on the employer.</p> <p>2. Interest—Ore Written Contracts of Employment.— In a suit on a written contract o-f employment the court holds that if there has been a breach of the contract and money is due by reason thereof to the employe, then he is entitled to interest.</p> <p>3. Variances—Should he Called to the Attention of the Trial Court. —An alleged variance which was not called to the attention of the trial court at any time, can not be .insisted on in this court.</p>

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

<p>1. Interest—Only Allowable by Statute.—At common law interest was not allowed. It can only be recovered where it is authorized by the statute.</p> <p>2. Same—May be Allowed on Damages for Failure to Convey Land. —A person who contracts to convey land at a particular time and fails to do so becomes liable then and there to pay the value of the land as damages, and may be charged with interest thereon in a proper case.</p> <p>3. Same—On Unliquidated Demands—When the Rule Does Not Apply—The rule that interest is not allowable on unliquidated demands does not apply where the damages are ascertainable by simple computation or by reference to generally recognized standards, such as market prices.</p> <p>4. Same—When Unreasonable and Vexatious Delay is Not a Question for the Jury.—While it is generally a question for the jury whether there has been an unreasonable and vexatious delay of payment where there is conflicting evidence, yet where facts creating a liability to pay at a specified time are not denied, and no evidence is offered to show ground for refusal, there is no controversy on this point for the jury to consider.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Statement op the' Case. This is an action to recover damages for personal injuries alleged to have been suffered by appellee while in the employ of appellant, in November, 1894. Appellee was employed as a laboring man, shoveling, earrying pig iron, picking up scraps, uploading sand, coke and coal, and in general work abont the yard.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Statement of the Case. This is an action to recover damages for injuries received by the appellee, caused by a fall upon a sidewalk, which is alleged to have been negligently constructed, with a dangerous slant, without cleats, and without a hand-railing on either side.

Assumpsit, on the common counts. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Statement of the Case. This is an action in assumpsit, in which the declaration contains only the common counts brought by appellee against appellants as copartners under the name of Robert Robinson & Son.

■' Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. John Bastón Payne, Judge, presiding. Statement of the Case. The deceased, John J. P. Theobald, was a boy aged eight years and eight months at the time of the accident which caused his death.

<p>1. County Commissioners of Cook County—Right of, to Delegate Authority.—Under the law in force in 1885 the county commissioners of Cook county had no power to delegate to any officer, agent or committee, authority to make any contract for the expenditure of public money exceeding the sum of $500.</p> <p>2. Verdicts—No Ground for Interference.—The court discuss the evidence in this case and conclude that no cause is shown by the record for any interference by this court with the verdict returned by the jury that tried the case, and that it must be treated as conclusive of the questions of fact involved.</p>

<p>In Equity.—Interlocutory orders appointing a receiver and consolidating causes. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>Petition, requesting the probate of a will. Appeal from the Circuit Court of Cook County; the Hon, Richard S, Tuthill, Judge, presiding.</p>

Replevin, commenced before a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Statement. The inception of this cause was a replevin suit brought by appellee against appellant before a justice of the peace, to recover.a piano. The piano was taken from appellant by a constable by virtue of a writ of replevin, and delivered to appellee. Jun^ trial in the justice of the peace court and verdict in favor of appellee.

Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Statement. This is an action in assumpsit brought by appellee against the appellant and one Lizzie H. Mereness. October 22, 1895, a joint plea of general issue was filed by both of the defendants below.

Trespass on the Case, for personal injuries. Appeal from the Superior Courtof Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Statement. Milwaukee avenue, in the city of Chicago, runs northwest and southeast. October 23, 1893, appellee was riding southeasterly along said avenue in an uncovered express wagon. The wagon was drawn by one horse, driven by John Barjowski.

Transcript, from a justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Statement.

<p>1. Verdicts—Upon Conflicting Evidence.—The court discusses the evidence, and although of opinion that there was some conflict upon several material points, conclude that it was for the jury to say what the truth was, and that their verdict was amply justified by the evidence in the record.</p>

<p>1. Negotiable Instruments— When Holder of, May Recover.—One who takes negotiable paper that is transferable by delivery acquires an absolute property in it, and may recover upon it, although the paper was fraudulently put in circulation or had been stolen, provided he takes it in good faith for a valuable consideration.</p> <p>2. Same—Delivery of, Necessary to Give Title.—Notwithstanding the fact that a certificate of deposit is by its terms made payable, at the request of the depositor, to persons other than himself, it is the property of the depositor, and not the property of the payees named, and continues to be his property until delivered by him to the payees.</p>

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

<p>1. Practice—Waiver of Instructions to Find for the Defendant.—A motion at the close of plaintiff’s evidence to instruct the jury to find the issues for the defendant is waived by the introduction of evidence in defense and the submission of the case to the jury without renewing the motion.</p> <p>2. Verdicts—On Conflicting Evidence.—In this case there was a sharp conflict in the testimony, with a seeming preponderance in plaintiff’s favor, and this court holds that the verdict of the jury must be regarded as settling the rights of the case.</p>

<p>1. Master and Servant—Duty of Master as to Safety Devices.— In a suit against a master to recover for injuries to a servant, a witness testified that a certain safety device should have been used in connection with the work being done by the servant. Held, that until it was shown that the device was in use in this State, that its use was known to the master or that it was a generally known safety device for the kind of work being prosecuted, questions as to whether it was in use in other parts of the world and whether it was easily obtainable were improper.</p> <p>2. Evidence—A Stockholder Not a Competent Witness in a Suit Against a Corporation by an Administrator.—A stockholder of a corporation is incompetent as a witness in a case where the adverse party brings suit against his corporation as administrator of a deceased person, and he can not be made competent by any assignment of his stock, made for the purpose of qualifying him.</p> <p>3. Same—.Exclusion of Witness on Account of Interest.—A witness should not be excluded on the ground of interest if the question of Ms interest is in doubt.</p> <p>4. Practice—Objections Should Be Specific.—A general objection to the testimony of a witness as to a conversation with a person since deceased, is not sufficient to cover objections that afterward arise as to the materiality or propriety of some particular part of-the conversation.</p> <p>5. Appellate Court Practice—Reconsideration of a Question Once Decided.—Where a second trial of a case is conducted in accordance with the holding of this court on appeal from the decision of the trial court on the first trial, this court will decline to re-examine the questions involved.</p> <p>6. Instructions—In a Particular Case, Should Be Considered Together.—Where, reading the instructions in a case together and treating them as related and as forming an entirety, the law applicable to the facts and circumstances of the case appears to have been given with substantial accuracy, fullness and fairness, objections to particular instructions can not be sustained.</p>

<p>1. Abatement—Great Precision and Certainty in Pleas in. Required. —The greatest precision and certainty possible is required in the structure and form of a plea in abatement; if it is uncertain in any particular it will be bad, and it must tender an issue that is material to the case.</p> <p>2. Same—A Plea in, Held Insufficient.—A defendant filed a properly entitled plea in abatement as follows :</p> <p>_ “And Henry C. Strauss, who is impleaded by the name of E. W. Strauss, in his proper person, comes and defends, etc., when, etc., and saith that he now is, and always was called and known by the name of Henry C. Strauss, and not E. W. Strauss, as by said writ and declaration is above supposed, and this he is ready to verifiy; wherefore he prays judgment of said writ and that the said writ may be quashed, etc.</p> <p>' Henry C. Strauss.”</p> <p>Held, that while the commencement of the plea was good in form, the substance or body of the plea was deficient in not. tendering an issue upon the truth of the sheriff’s return.</p> <p>3. Service of Process—Sheriff's Return is Part of the Record.—The sheriff’s return of a summons is a part of the record, and the question of its truth or falsity presents a material fact for determination.</p> <p>4. Same—Sheriff's Return is Prima Facie Evidence of the Facts Stated—How-Contested.—A return by a sheriff, although not conclusive, is prima facie evidence of the facts stated, and if the truth of the return is soughtto be impeached by showing that the writ was in fact served upon a person other than the one named, that question should be put in issue by a proper, certain and triable allegation.</p> <p>5. Records—Errors in—Effect of.—While a record imports verity, this court is not required because of it to believe impossibilities, and where a suit was not pending until nearly five months after the first order purports to have been made, this court will take notice that it was impossible for an order to have been made at the purported time, but will have no right to guess that it was made at some other or different time.</p>

<p>1. Verdicts—Will he Set Aside When Against the Strong Preponderance of the Evidence.—Under the rule that verdicts will be set aside when contrary to the evidence, they will be set aside when against the strong preponderance of the evidence, especially when apparent injustice has been done.</p>

<p>1. Appeals and Errors—Appeals from Interlocutory Orders Granting Injunctions—Motion to Dissolve Not a Prerequisite.—The language of the statute allowing appeals from interlocutory orders granting injunctions is so plain that there is no room for a construction which would require an appellant, before perfecting his appeal, to move for a dissolution of the injunction.</p> <p>2. Injunctions—Without Notice—Showing Necessary.—Before an injunction can be granted without notice, facts must be stated from which the court can see that irreparable injury will or is liable to result unless such an injunction be issued.</p> <p>3. Same—That Defendant May Evade Service of Summons, Not Ground for Issuance of, Without Notice.—That a defendant may depart from the jurisdiction of the court, so that service can not be had upon him, if notice should be served upon him, is not sufficient ground for the issuance of an injunction without notice, for-there is no reason why service of summons can not be had at the same time the notice of an application for an injunction is served.</p> <p>4. Same—To Restrain Multiplicity of Suits.—That a suit has been commenced and sixty more threatened is not of itself a cause for the interference of equity by injunction, where such suits will all be between the same parties.</p> <p>5. Equity—Jurisdiction of, in Matters of Account.—A court of equity has no jurisdiction in matters of account unless it appears that the accounting can not be justly and fairly taken in a court of law.</p>

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

<p>1. Consideration—Pre-existing Debts Sufficient Consideration for Note Given as Additional Security.—A judgment note maybe legally given as security for a pre-existing debt, and when so given is not open to the objection of want of consideration.</p> <p>2. Decrees—The Findings of a Chancellor Not Disturbed Unless Clearly Against the Evidence.—The findings of a chancellor upon the testimony of witnesses examined in open court, will not be disturbed on appeal unless clearly against the evidence.</p> <p>3. Conveyances—Without Consideration Good Except as to Bona Fide Creditors. —A properly executed conveyance of real estate, although without consideration, is effective to pass the title to the premises described against the grantor and all the world except bona fide creditors.</p> <p>4. Creditor’s Bills—Priority Under—Priority of Judgment of no Effect.— The fact that a judgment held by one creditor was rendered before that held by another, is of no significance in determining priorities in a suit in equity to set aside a fraudulent conveyance, as it is the filing of the bill and service of process on the grantee ir the fraudulent conveyance which creates an equitable lien and gives the complainant priority over other creditors.</p> <p>5. Fraudulent Conveyances—May he Set Aside. Although There Has Been no Return of Execution Unsatisfied.—It is' not necessary, to sustain a bill by a judgment creditor, to set aside a fraudulent conveyance by his debtor, that an execution shall have been returned unsatisfied.</p> <p>6. Equity—Relief Under General Prayer.—Such specific relief as the</p> <p>allegations of the bill and the proofs warrant will be granted under a prayer for general relief. '</p> <p>7. Levy—Effect of, on Priorities in Suit to Set Aside a Fraudulent Conveyance. —The fact that an execution was levied on certain real estate and a certificate of such levy recorded does not give the judgment creditor priority in equity in proceedings to set aside a fraudulent conveyance of such real estate where the execution was returned unsatisfied and no sale made in pursuance of the levy.</p>

<p>Debt, to revive a judgment. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding.</p>

<p>. 1. Verdicts—On Conflicting Evidence.—The evidence in this case was conflicting, and was properly submitted to the jury, and this court can not say that their verdict is manifestly against the weight of the evidence; hence it must stand.</p> <p>3. Abstract—Should be Complete and Reliable.—It is the duty of parties bringing cases to this court for review to prepare and file complete abstracts of the record in accordance with the rules, and such abstracts as can be relied upon.</p>

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

<p>1. Railroads—When the Relation of Carrier and Passenger Commences.—A person purchased a ticket of a railroad company with the intention, of becoming a passenger on one of its trains, and passed through a turnstile provided by the company for that purpose, and onto its depot platform. Held, that the relation of carrier and passenger existed between the parties when the purchaser of the ticket passed through the turnstile onto the platform.</p> <p>3. Evidence—Physician May be Ashed as to the Pi'dbable Result of an Accident.—In an action against a railroad company to recover for an injury to the plaintiff occasioned as alleged, by his falling through an opening between a depot platform and a car, the plaintiff asked a medical witness whether such an accident as was alleged to have occurred (describing it) would be likely to result in the condition testified to by him. Held, that the question was not objectionable.</p> <p>2. Same—Duty to Passengers on its Premises, and as to the Controlling of Crowds.—A railroad company is bound to use reasonable care in providing for the safety and protection of its passengers while in its enclosures, and while being conducted to its trains, with due regard to the number and character of those, on its premises and with due reference to the risks to which they are exposed; and this duty may require it to provide a suitable number of men to properly control a crowd, and to protect its passengers from the dangers incident thereto.</p> <p>4. Same—Limiting Number of Witnesses—Intention as to, Declared but Not Executed, Not Error.—After a number of witnesses had testified upon a particular point, the court stated that only two more witnesses would be heard on such point. Three more witnesses were offered on such point and they were all allowed to testify. Held, that a claim on appeal that the court improperly limited the number of witnesses on such point was not tenable.</p> <p>5. Damages—$10,000 Held Not Excessive in a Personal Injury Case.— In a personal injury suit the evidence showed that the plaintiff (a woman) was healthy and capable of doing all ordinary household' work before the accident, and that after the accident her eyes were affected, her range" of vision contracted, the action of her heart irregular and impaired, that she suffered from nervous prostration, and that her condition was permanent. Held, that a judgment for $10,000 could not be held to be excessive.</p> <p>6. Practice—Instructions to Disregard the Counts of a Declaration. —Instructions directing the jury to disregard several counts of a declaration, held properly refused.</p> <p>7. Negligence—Pleadings and Proofs as to.— In a personal injury suit against a railroad company one of the counts of the declaration charged that the defendant carelessly constructed, operated and maintained a platform and left an open space of the width of ten inches between a passenger train and such platform, and that the plaintiff fell through said open space and was injured. The defendant requested an instruction that if the evidence showed that such space did not exceed three or four inches the plaintiff could not recover. The court refused to give the instruction, but gave one which left to the jury the question whether the platform was or was not properly constructed and the train properly operated. Held, that the action of the trial court furnished no sufficient cause of complaint.</p>

<p>Assumpsit, on the common counts. Error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Statement of the Case. The following facts appear, either undisputed, or established by such evidence as warranted the jury in finding them: Appellant, by Walsh, its foreman, employed appellee to work for it in repairing a viaduct. The viaduct was partially repaired by appellant’s employes before appellee was employed and began to work.

<p>Separate Maintenance.—Error to the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>1. Mechanics’ Liens— Act of 1895 Does Not Apply to Contracts Previously Entered Into.—The mechanic’s lien act of 1895 does not govern mechanic’s lien cases arising out of contracts entered into prior to its passage, where the provisions of the act affect the substantial then existing rights of the parties.</p> <p>2. Same—Where Contract is Made with a Third Party.—In the absence of fraud, a contract under seal with one person is conclusive against any right to a mechanic’s lien on the interest of another person in property improved under the provisions of the contract.</p>

<p>1. Bills of Exceptions—Statements in, as to Evidence not Shovm by.—At the conclusion of all the evidence shown by a bill of exceptions there appeared this statement: “ Which evidence, with other evidence introduced, and because of the introduction of other evidence, tended to prove the issues in the case, and which evidence was made material and admissible by and because of other evidence introduced in the case.” Held, that the admissibility of the evidence thus certified to could not be questioned.</p> <p>Instructions—Slating Abstract Propositions or Repeating Matters Already Gi,ven,—Instructions stating abstract propositions or repeating matter given in other instructions may be properly refused.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Statement of the Case. Appellee sued appellant, his employer, to recover for personal injuries sustained, as alleged, through negligence of appellant. Verdict and judgment resulted in favor of appellee for the sum of $2,500.

Assumpsit, on an insurance policy. Appeal from the Circuit Court of Cook County; the Hon. Edward F; Dunne, Judge, presiding. Statement of the Case. This case presents the question of the construction of a policy of' insurance, attached to which is a clause making the loss under the policy payable to a mortgagee. On October 6, 1892, appellant issued its policy, insuring ■ Ellie L. Graham on certain property for a period of three years, and to an amount not to exceed $1,400.

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

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

<p>1. Damages—$5,000 Held not Excessive in a Personal Injury Case. —The court discusses the evidence bearing on the question of damages in a suit to recover for personal injuries and concludes, in view of the facts shown, that a judgment for $5,000 is not excessive.</p> <p>2. Appellate Court Practice—Errors not Argued Deemed Waived. —Where an appellant assigns a number of errors, but calls attention in his brief to only one, the court will assume that he has waived all other, assignments of error and will not consider them.</p>

<p>Transcript, from a justice of the peace. Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

<p>1. Equity Pleading—Where a Promise is Pleaded the Promisee Should he Named and the Consideration Stated.—Where a petition for a mechanic’s lien alleges that a grantee of the land, on which the lien is claimed, promised in writing to pay the amount claimed, but does not state to whom the alleged promise was made, nor what, if any, consideration there was therefor, such alleged promise must be regarded as without consideration, and of no binding effect.</p> <p>2. Decrees—Must he Supported hy Allegations of Bill—There can be no valid decree without allegations in the bill as a basis for it, as it is quite as essential that there be allegations in the bill as proof to sustain the decree.</p> <p>3. Same—Accord Must Contain Proof to Sustain.—It is incumbent on a party in whose favor a decree is rendered to preserve in the record the proof necessary to sustain his decree.</p> <p>4. Res Judicata—Plea of, Held Insufficient.—A petition for a mechanic’s lien asked for a lien and also a personal decree, and the defendant filed what he termed a plea of res adjudieata. The plea only set up facts constituting a defense to the claim for a personal decree.</p> <p>Held, that it was insufficient.</p>

<p>1. Appeals and Errors—Error Without Injury.—Errors in the admission of evidence and in giving and refusing instructions will not always warrant a reversal of the judgment of the trial court, when upon a review of the whole evidence in the case it is manifest the finding of the jury was right and that, as in this case, the errors of the trial court were harmless to appellant.</p>

Mechanic’s Lien.—Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Statement oe the Case. Appellant filed his petition July 20, 1895, in the Circuit Court of LaSalle County, for a mechanic’s lien upon certain real estate in that county for labor and repairs done for Barber Brothers, all but $1.20 of which was alleged to have been incurred before July 1, 1895.

Assumpsit, on a promissory note. Appeal from the County Court of Peoria County; the Hon. Robert H. Lovett, Judge, presiding. Statement of the Case. This was a suit by appellee against appellants, upon a promissory note. A former judgment for plaintiff was reversed because defendants were defaulted with a plea in bar on file and not disposed of. (70 Ill.

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

<p>1. Verdicts—On Conflicting Evidence.—While it is true there was a conflict in the evidence in this case, it was for the jury to reconcile it if they could, and if not, then to give credence to the witnesses they thought entitled to it, and this court sees no ground for interference with their conclusion.</p>

<p>1. Practice— When Propositions of Law May be Submitted.—It is only where the parties are entitled to a trial by jury, and, waiving that right, submit the case for trial by the court, that Sec. 41 of the Practice Act gives the right to submit written propositions to be held as law in the decision of the case, and said section does not govern any case which must be tried by the court without the intervention of a jury, in the absence of agreement or consent by the parties.</p> <p>3. Charitable Uses—Validity of.—The validity of charitable bequests, and the jurisdiction of equity in relation thereto, are not wholly dependent upon the statute of 43 Elizabeth, Chap. 4, but a charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well-doing and well-being of social man.</p> <p>3. Same—Charities Defined.—The court quotes approvingly the following definition of a charity: “Whatever is given for the love of God, or the love of your neighbor, in the catholic and universal sense—given from these motives and to these ends—free from the stain or taint of every consideration that is personal, private or selfish,” is a charity.</p> <p>4. Same—What is Charitable in the Legal Sense of the Word.—It is well settled that any purpose is charitable in the legal sense of the word which is within the principle and reason of the statute of 43 Elizabeth, Chap. 4, although not expressly named in it.</p> <p>5. Same—A Bequest for the Attainment of Woman Suffrage Valid.— A bequest to trustees “to be used by them, according to their best judgment, for the attainment of woman suffrage in the United States of America and its territories,” does not violate the policy of the law, and should be sustained as a valid charity.</p> <p>6. Same—Effect of Death of Trustees—Jurisdiction of Chancery.— If a bequest creates a charitable use of such a nature that a court of equity can supervise its administration, then the death of all or a part of the trustees does not cause a failure of the bequest, but in such a case, where trustees capable of taking the legal estate were originally appointed and the case thus brought within the jurisdiction of a court of chancery, that court will supply any defect which may arise in consequence of the death, disability or refusal of the trustees to act.</p> <p>7. Same—Not Affected by the Rule Against Perpetuities.—The rule against perpetuities does not apply to charitable bequests.</p> <p>8. Perpetuities— The Rule Does Not Apply to a Bequest to Trustees with Power to Expend.—Where a bequest is made to trustees for the accomplishment of a particular object, and the trustees are given power to expend the fund, it can not be held that the bequest in any way violates the rule against perpetuities.</p> <p>9. Trusts—Enforcement of—Who May Put the Machinery of the Court in Operation.—A bequest to trustees “for the attainment of Woman Suffrage iti the United States of America and its Territories ” can not be held void because no beneficiaries are designated who can enforce the execution of the trust, as the heirs, the testator, or any person interested in woman suffrage could put into operation the machinery of a court of equity to enforce the trust.</p> <p>10. Public Policy —Advocating Changes in the Constitution Not Against Public Policy.—The advocacy of a change of the Constitution in a proper way, and in the manner provided by that instrument itself, is not against public policy, and a bequest to be used in 'securing such a change may be sustained as a valid charity.</p>

<p>1. Estoppel—Effect of Receiving or Paying Fees for Use of Patent or Right to Disavow the Position of Licensor or Licensee.—The owner of patents can not maintain a suit for infringements of his patents after-receiving license fees or royalties; and after paying such fees or royal- ■ ties, and having had all the benefits of a right to manufacture under patents, a person can not be heard to say that he was not a licensee but a mere infringer.</p>

<p>1. Railroads—Liability of, for Damages Caused by Fire.—Under the statutes of this State, proof that property was destroyed by fire communicated from a passing engine, is to be taken as full 'prima facie evidence to charge the railroad company operating the same with negligence; and to rebut the case made by such proof it is incumbent on the company to show that the engine was at the time equipped with the best known appliances to prevent the escape of fire, was in good repair, and was skillfully and carefully handled.</p> <p>3. Same—Fires Communicated by Locomotives—Contributory Negligence.—The statute in regard to fires communicated by locomotives was not intended to absolve the owner of property from all care whatever, and confer upon him the right to make such extraordinary use of his land adjoining a railway as that he might, regardless of danger, pile up vast quantities of highly combustible material, liable at any moment to be set on fire by a passing engine, and he himself take no risk; and in this case the court holds that the question whether the plaintiff was guilty of contributory negligence, in stacking a large quantity of straw near a railroad track, was properly submitted to the jury.</p> <p>3. Trials—Province of the Jury Where the Evidence is Conflicting.— The question arising in this case as to the relative merits of different methods of preventing the escape of sparks from a locomotive was one of fact, peculiarly within the province of the jury to determine, and it was for them to reconcile the conflicting evidence, if they could, and if not, then to give credence where they thought it properly belonged.</p>

<p>Assumpsit, for medical services. Appeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding. Verdict and judgment for plaintiff.</p>

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

Injunction.—Appeal from the Circuit Court of Tazewell County; the Hon. Leslie D. Puterbaugh, Judge, presiding. Statement of the Case.

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

<p>1. Fellow-Servants—The Relation Held Not to Exist Under the Cireumstanees of a Particular Case.—In a suit by a miner against a coal company for injuries alleged to have been caused by negligence, the court reviews the evidence and holds that a mine inspector, manager and pit boss, stood in his relation to the plaintiff not as a fellow-servant, but as a master or vice principal.</p> <p>3. Negligence—A Plaintiff Held, to Have Exercised Ordinary Care. —In a suit by a miner against a coal company for injuries alleged to have been caused by negligence the court reviews the evidence and holds that the plaintiff, in obeying the commands of a mine manager, inspector and pit boss, acted with that degree of prudence that an ordinarily prudent man would have exercised under like circumstances.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding.</p>

Injunction, to restrain a suit on a promissory note. Appeal from the Circuit Court of Jersey County; the Hon. Robert B. Shirley, Judge, presiding. Statement of the Case. On the 6th of September, 1884,William F. Sandidge borrowed of Jonathan E. Cooper three hundred dollars and delivered to him a promissory note, with Milo Landon and William Sinclair as sureties, due in one year, with interest at the rate of eight per cent per annum.

<p>Replevin, for a stock of merchandise. Appeal from the Circuit Court of McLean County; the Hon. Alfred Sample, Judge, presiding.</p>

<p>1. Evidence—In Suits Based on Negligence—Rules of Railroads and of the United States Mail Service. —In- a suit against a railroad company by a United States transfer mail clerk for injuries received by him while in the discharge of his duties, the court admitted in evidence a rule of the railroad company regarding the operation of trains and a government rule regulating the conduct of clerks in the transfer of mail. Held, .that under the circumstances the action of the court was proper.</p> <p>2. Instructions—Must be in Writing.—An oral request for an instruction is not sufficient. It is only for a refusal to give a written instruction prepared and tendered that error can be assigned.</p> <p>3. Railroads—Running Train Past Station Where Passenger Train is Stopping or About to Stop. Negligence.—The running of a freight train at a high rate of speed past a station where a passenger train is receiving and discharging passengers is plainly negligence; and it is equally negligent to so ran a freight train just as the passenger train is pulling into the station, and more especially when the track on which the freight train is moving is between the depot and the track on which the passenger train is moving.</p> <p>4. Negligence—Injury Must be Attributable to Defendants Negligence and to that Alone.— The doctrine of comparative negligence is no longer the law in this State, and to entitle a plaintiff to recover he must have been in the exercise of ordinary care at the time of receiving the injury, and a plaintiff could not have been in the exercise of ordinary care and at the same time guilty of negligence that contributed to the injury. The injury must be-attributable to the defendant’s negligence and to that alone.</p>

Intervening Petition, in receivership proceedings. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Statement of the Case.

<p>I. Appeals and Errors—Errors Not Mentioned in Motion for Neio Trial Waived.—Where a party in a written motion in the trial court specifies the grounds for a new trial, he will, in the Appellate Court, be confined to the reasons so specified, and will be held to have waived all causes for a new trial not so specified.</p> <p>3. Gifts—Delivery Essential.—To constitute a valid gift inter vivos it is essential that the thing be actually delivered. The donor must relinquish all present and future dominion over the subject-matter of the gift. If delivered to an agent to be subsequently delivered to the donee, the donor may, at any time before the agent acts, revoke his authority, and the donor’s death before delivery revokes it.</p> <p>3. Consideration—Of Written Instruments—Parol Evidence as to. —While it is always admissible to show that the consideration for an instrument was different from that mentioned in the deed, yet, where notes have been executed and delivered that fix the amount of the consideration, it is exceedingly dangerous to allow them to be overcome by parol proof, especially when coming from the mouth of a grantee sued by the administrator of his deceased grantor.</p> <p>4. Delivery—To an Agent Sufficient.—Certain notes were not delivered to the payee but were left with and held by his attorney and agent. Held, that there was a sufficient delivery.</p>

<p>Quo Warranto.—Tried in the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Leave to file petition denied. Appeal by relator.</p>

<p>1. Slander and Libel—Privileged Communications.—No action for slander or libel can be maintained against a judge, or one exercising judicial functions, for anything he may write or say in his judicial capacity upon the determination of a cause or matter pending before him, but it can not be held that after the judicial duty is performed and ended, the person so acting may wantonly or maliciously assail and defame the character of a party or witness, publicly or privately, and shield himself behind the defense of privilege.</p> <p>2. Same—Privileged Communications—Statements by a County Superintendent of Schools of Reasons for Revoking a Certificate.—A county superintendent of schools has the right in good faith and for justifiable motives to communicate to a school board his reasons for revoking the certificate of a teacher employed by them, and such a communication is conditionally privileged.</p> <p>3. Same—Privileged Communications—Burden of Proof Shifted.— The doctrine of privileged communications merely changes the rule of evidence, rebutting the presumption of malice arising from the speaking of defamatory words which would otherwise be actionable per se, and imposing upon the injured party the burden of proving actual or express malice, proof of which will defeat the defense of privilege.</p> <p>4. Same—Certain Evidence 'Held Admissible to Defeat the Defense of Privileged Communication.—In an action for slander, where the defense of privileged communication is interposed and relied upon, the court holds that it is competent for the plaintiff to prove facts and circumstances and statements by the defendant, inconsistent with such defense; and that a statement by him that “ I don’t make these charges as a public officer, I make them as a private citizen,” is admissible.</p> <p>5. Same—Certain Evidence Held Admissible as Tending to Show Malice.—The court holds that certain statements made by the defendant in an action for slander should have been allowed to go to the jury upon the question of actual malice, and as bearing upon the motives of appellant in making the charges complained of.</p> <p>6. Same.—Proof of Words Not Charged as Showing Malice.—Other words imputing the same charge, though not laid in the declaration, are admissible for the purpose of showing malice.</p>

<p>Information, in the nature of a quo warranto, against a school district. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>Petition, in assignment proceedings. Appeal from the County Court of Henry County; the Hon. A. R. Mock, Judge, presiding.</p>

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

<p>1. Fraudulent Conveyances—Preferences in Favor of a Wife.— While-the rale is that when a husband in failing circumstances undertakes to prefer his wife to the exclusion of other creditors, the proof should be clear and satisfactory that the wife has a valid subsisting debt against her1 husband, and that the equitable claim of the wife to the property is not clouded with acts on her part that should work an estoppel, yet in this case the court thinks that appellee Barbara Meier, having paid for the property in controversy out of her separate estate, and received all the rents therefrom, was in equity the owner thereof, and that having procured title in her own name before appellant secured his judgment against her husband, she is first in time, and therefore first in right as against appellant, who had an equity, but was beaten in the race for priority.</p> <p>2. Amendments—Surprise—How it Should be Brought to the Attention of Trial Court.-—Where the court allows an amendment, and the party against whom it is made, by reason of surprise, is not prepared to meet the new issue raised by such amendment, he must present an affidavit to that effect in order to be in a condition to complain of the allowance of the amendment.</p>

<p>1. Insurance—Effect of Untrue Statements in Application Prepared by Agent of Insurer.—Where an agent of an insurance company, having real or apparent authority for that purpose, is truly informed by the assured of the real facts relating to the risk, but such agent incorrectly states them in a written application for insurance prepared by him, and without the knowledge or consent of the assured, the company is estopped from insisting upon a forfeiture of the policy issued upon such application, on account of such erroneous statement in such application; and oral evidence is competent and proper to show the real information given such agent by the assured, notwithstanding the statements made-in the application.</p> <p>2. Agency—An Insurer is Bound by Acts of Agent Within His Apparent Authority.—Where an insurer clothes its agent with apparent authority to act for a particular purpose as to third parties, who, without notice of -the real authority of such agent, deal with it through him, it will be bound by his acts within the scope of his apparent authority, although in fact he had not such real authority.</p>

<p>1., Verdicts—Sustained by the Evidence.—The court reviews the evidence in this case and concludes that there is ample evidence in the record to justify the verdict rendered, and that- the judgment must be affirmed.</p>

Trespass on tlie Case, for injury to real estate. Appeal from the Circuit Court of McLean County; the Hon. Alfred Sample, Judge, presiding. Statement of the Case. Patrick Purcell is the owner of a tract of latid in the city of Bloomington, bounded by Washington street on the south and by the L. E. & W. R. R. right of way on the east.

<p>1. Railroads—Liability of Company for Act of Brakeman in Ejecting a Person from a Train.—Although a person who has boarded a freight train may be a trespasser, that does not prevent a recovery against the railroad company for the act of a brakeman in ejecting him from the train while it is in motion, and without regard to the safety of his person, or the preservation of his life.</p> <p>2. Same—Liability of Company for Acts Performed by Direction of the Conductor of a Train-.—The brakeman of a freight train, acting under orders from the conductor, forcibly ejected from the train a person who was riding thereon, and he was seriously injured. Held, that the conductor was a vice principal, and that the railroad company was liable for acts performed under his direction.</p> <p>3. Damages—A Question for the Jury.—When there is not a legal measure of damages, and when the damages are unliquidated and the suit is referred to the discretion of the jury, the court will not ordinarily interfere with the verdict. It is the peculiar province of the jury under appropriate instructions from the court, to decide such cases, and the law does not recognize in the court the power to substitute its own judgment for that of the jury.</p>

<p>Trespass on the Case, for damage to real estate. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Edgar County; the Hon. Frank K. Dunn, Judge, presiding.</p>

<p>1. Replevin—Waiver of Demand.—After the commencement of a replevin suit, a controversy arose as to a demand, and the defendant said: “ I waive all demand: you can go ahead with your replevin.” Held, that the defendant had waived the necessity of a demand and was estopped from claiming that no demand was made.</p> <p>2. Chattel Mortgages—Affidavits for Extension of, Held Valid.— Affidavits made by the mortgagor and the mortgagee in a chattel mortgage were made at the same time and on the same paper. It was apparent from the affidavits that there was an agree lent between the parties to extend the time of payment of the indebtedness, and they were ample to enable creditors to know the time to which the mortgage had been extended, the amount unpaid and the interest the mortgagees had in the property. Held, that the affidavits should be considered together and as constituting one transaction; that they constituted a substantial compliance with the statute, and that the mortgage was legally extended.</p> <p>3. Same—Acceptance of Bill of Sale, Held, Not a Satisfaction, Under the Circumstances.—The mortgagor in a chattel mortgage made a bill of sale of the mortgaged property to the mortgagee, which was accepted upon representations that the property was free from liens. Upon learning of a lien the mortgagee immediately declared that he had no claim to the property under the bill of sale and claimed it under the mortgage, giving notice to the persons interested. Held, that under the circumstances shown, the acceptance of the bill of sale did not amount to a satisfaction of the mortgage and that it was a valid lien on the property described therein:</p> <p>4. Same—Acknowledgment and Docketing.—The statute in regard to chattel mortgages only requires the justice to enter a memorandum of the names of the mortgagor and mortgagee, and a description of the property as in the mortgage,' and that it was acknowledged, and the date thereof; and it can not be rendered invalid because the memorandum contains matter not required by the statute or on account of a mistake of the justice in describing the debt secured.</p> <p>5. Same—Affidavits for Extension of, May be Filed on Day Debt Matures.—An affidavit extending a chattel mortgage and the debt secured thereby is in apt time if filed on the day on which the debt falls due.</p>

<p>1. Verdict—On Conflicting Evidence.—In a personal injury suit the court discusses the evidence and holds that while it was conflicting on some of the questions involved, that the facts do not warrant the interference of this court and that the verdict of the jury must stand.</p> <p>3. Common hKW—When Superseded, by Statute on Same Subject.— The legislature could formulate a complete code of rules so particular and minute in their character as to coyer all common law rights with reference to any particular business, and in that event there would be a complete supersedure of the common law; but unless that is done, all common law rights not at variance with some provision of the enactment continue in force.</p> <p>3. Mines and Mining—Common Law as to Negligence of Mine Operator Not Superseded by Statute.—The court holds that the contention of counsel in this case, that since the passage of the several acts of the legislature regulating the operation of mines, there can be no such thing as negligence at common law in conducting the business, and that whenever a mine operator complies with the statute lie is absolved from all charges of negligence, is not well founded, and that the declaration -in this case sets out facts and circumstances which constitute a cause of action under the eommon law.</p>

Trespass on the Case, for libel. Error to the Circuit Court of McLean County; the Hon. Thos. F. Tipton, Judge, presiding. Statement oe'the Case. This is an action on the case for libel, commenced by J. M. Benson, J. T. Benson, Frank Benson and Nannie Benson against J. W. Arnold and J. P. Arnold.

Trespass, to recover damages for a violation of the act to prevent the spread of contagious and infectious diseases among swine. Error to the County Court of Moultrie County; the Hon. Isaac Hudson, Judge, presiding.

Debt, against a railroad company to ' recover double the value of a fence. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding.

<p>1. Findings by the Court—Ore Conflicting Evidence. —The court concludes, after a careful consideration of the evidence, that as an Appellate Court it ought not to reverse the findings of the trial court on the questions of fact involved, as the evidence was conflicting, and as they were questions peculiarly proper to be passed upon by the trial court, who saw the witnesses.</p> <p>2; Voluntary Assignments—Power of the County Court as to.—In the administration of estates of insolvent debtors, the County Court is clothed with judicial discretion, and its determinations will not be disturbed unless such discretion is manifestly abused; and as in this case it is perfectly manifest that.the principal thing sought, was to procure the removal of the assignee, when the court concluded to deny the application for removal, it could well postpone its action on the complete settlement of his account until some future time, as it did.</p>

<p>1. Evidence—0/ an Accident to Show Notice that Repairs Were Required.—In a suit by a miner against a coal mining company for damages caused by a failure of the company to furnish necessary props, the court admitted evidence to show that a short time prior to the injury to the plaintiff a part of the roof of his room fell, and that the side of the room where the fall occurred was then supplied with props. Held, that the evidence was proper as tending to show notice to the defendant of the necessity of furnishing props to prevent the falling of the roof.</p> <p>2. Instructions—Error is Not Necessarily Ground for Reversal.— The court holds that certain instructions (not given in the opinion) are open to some criticism, but that they do not furnish ground for reversal.</p>

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

<p>1. Master and Servant—Hazard Assumed by Servant.—Where a boiler inspector saw and knew the conditions that surrounded him when making an inspection, and from his knowledge and experience knew as well or better than the owner of the boiler or its engineer whether these conditions were such that he could safely make the inspection, he must be held to have assumed the risks involved as incident to the employment in which he was engaged.</p>

<p>Transcript, from a justice of the peace. Appeal from the Circuit Court of Sangamon County; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>I. Fraud—Not Shown by the Evidence.—The court discusses the evidence in this case and concludes that it does not show such fraudulent statements or acts on the part of appellant as would justify the appellee in rescinding the contract sued on.</p> <p>3. Agents—Suit in the Name of, Held Proper under the Circumstances.—Am order was addressed “To. Messrs. Mills & Co., general agents, The Computing Scale Company, Chicago, Illinois.” Held, that the order was to Mills & Co., and that suit was properly brought in their name.</p>

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

<p>Transcript, from a justice of the peace. Appeal from the County Court of Adams County; the Hon. Carl E. Epler, Judge, presiding.</p>

<p>1. Verdicts—O/i Conflicting Evidence.—There was a conflict in the testimony on the questions of fact involved in this case, and it was for the jury to say with whom was the weight of the evidence; and as this court can not say that their verdict is not sustained by the evidence it must stand.</p> <p>3. Instructions—Effect of Failure of Court to Marie Instructions “Given" or “Refused.”—A judgment will not be reversed merely because an instruction was not marked “ Given ” when the record shows it was given.</p>

<p>Replevin.-^-Appeal from the Circuit Court of Sangamon County; the</p> <p>Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Trespass on the Case, against a landlord for failure to repair a roof. Appeal from the Circuit Court of Moultrie County; the Hon. Francis</p> <p>M. Wright, Judge, presiding.</p>

<p>I. Injunctions—The Granting of a Temporary Injunction Sustained. —The court holds that the action of the Circuit Court in granting a temporary injunction in this case was justified by the facts set out in the bill of complaint, and that until the bill is answered and the cause heard the complainants are entitled to the preliminary injunction that was awarded.</p>

<p>1. Railroads—Liability of, for Failure to Fence Track.—Where stock enters a railroad right of way at a place exempted from the operation of the statute in regard to fences and cattle guards, and wanders along the track to a place not exempted, because of a failure to erect a suitable fence or cattle guard, and is there killed by a train, the railroad company is liable.</p> <p>2. Same—Duty of, to Fence Tracks—Depot Grounds Exempt.—Such' part of the depot grounds of a railroad company as is necessary for the use of the road by the public is excepted from the operation of the statute even though not within an incorporated city or village.</p> <p>. 3. Appeals and Errors—Errors in Instructions Where the Judgment is Clearly Right.—Where, on the facts as shown by the record, the judgment of the trial court is clearly right, this court will not interfere on account of an error in an instruction.</p>

<p>1. False Representations—Secs. 96 and 97, Chap. 88, R. S., Construed.—The court holds that Sec. 96 of the Criminal Code was not intended to include cases where the defrauded party parts with his money as a loan, but that where a loan is procured by the false representations of the borrower as to his solvency, the case falls within section 97, provided the representations are in writing.</p>

<p>Bill, to have a deed declared to be a mortgage. Error to the Circuit Court of Macoupin County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Assumpsit, on a promise made in consideration of a devise. Appeal from the Circuit Court of Logan County; the Hon. George W. Herd-man, Judge, presiding.</p>

<p>1. Parol Evidence—To Sustain an Executed Agreement Changing the Terms of a Sealed Contract.—The terms of a sealed executory contract can not be altered or modified by parol agreement, but if the new parol agreement has been executed, and by means thereof one of the parties has been led into a line of conduct prejudicial to his interest, equitable estoppel arises in his favor, and evidence of the parol agreement may be heard to the nullification of the prior written contract, and a, waiver of a clause requiring certain goods to be kept insured must be regarded as an executed contract.</p> <p>2. Practice—Objections to Evidence—Character and Time of.—If a party desires to object to testimony upon the ground that it is not admissible under the pleadings he must make that specific objection when the testimony is offered, and the point comes too late when urged for the first time in a court of appeal.</p>