Volume 77 — Illinois Appellate Court Reports

<p>1. Mechanics’ Liens—Sub-Contractors—Notice.—A sub-contractor .or party furnishing materials, in order to preserve his lien, must give a notice to the owner showing the amount due or to become due and when it became due or will become due.</p> <p>2. Same—Suit to Enforce Mens—When to be Commenced.—A suit to enforce a sub-contractor’s lien must be commenced within four months after the time that the final payment is shown to be due to the sub-contractor or party furnishing materials.</p>

Volnntary Assignments.—Petition to have certain accounts receivable turned over to the assignee. Trial in the County Court of Cook County; the Hon. J. H. Batten, Judge, presiding. Hearing and decree entered dismissing the petition. Appeal by petitioner.

Trespass on the Case, for personal injuries. Trial in the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Verdict for defendant1 by direction of the court. Error by plaintiff.

<p>Bill to Cancel Notes, etc.—Trial in the Superior Court of Cook County, the Hon. Henry V. Freeman, Judge, presiding. Hearing and decree for complainant. Appeal by defendant.</p>

Trespass on the Case.—Death from negligent act. Trial in the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Surety—When a Judgment Does Not Release.—Where a person is a surety only, in the acceptance of a draft, the recovery of a judgment upon the draft will not operate to destroy his character as such surety in relation to the principal and the creditor. The only effect of the judgment is to change the form of the security from that of the draft to that of the judgment.</p> <p>1 2. Same—What Acts Will Discharge.—Whatever acts will discharge the surety before judgment, while his obligation is only one of contract, will have the same effect after it has passed into judgment.</p> <p>3. Same—Equitable Relief in Favor of.—Equitable relief in behalf of sureties is one of original jurisdiction in a court of chancery.</p> <p>4. Injunction—To Restrain Proceedings in a Suit at Law—Bond.— When a suit is brought to enjoin .proceedings in a suit at law, the amount of the bond is a matter resting in the discretion of the chancellor.</p> <p>5. Same—Showing Made to Avoid Giving of Notice.—Where it appears that a motion to dissolve an injunction was heard by the court and overruled, and upon hearing the defendant was present, and the result there, upon the hearing of all par-ties, having been the same as reached upon the ex parte application, it is conclusive that the defendant was not prejudiced, so far as the question of notice is concerned, by the order of the court entered in its absence.</p>

Trespass oil the Case, for personal injuries. Trial in the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Attachment and Garnishee Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Statement.

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Assumpsit, on a contract of guaranty. Trial in the Circuit Court of Cook County on appeal from a justice of the peace. The Hon. Richard W. Clifford, Judge, presiding; verdict and judgment for plaintiff; appeal by defendant.

<p>Assumpsit, for clerk’s services. Trial in the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Judgment for plaintiff on referee’s report. Appeal by defendant.</p>

<p>1. Appellate Court Practice—Defective “Briefs and Arguments.” —When the appellants do not point out or refer to the rulings of the trial court in admitting or excluding testimony, or in instructing the jury, which are claimed to be erroneous, the judgment appealed from will be affirmed.</p>

<p>1. Damages—$1,450 Not Excessive.—When the evidence as to the usual and customary compensation of an architect for performing services is conflicting, and a verdict rendered for $1,450, the court can not say that the verdict is contrary to the weight of the evidence in this case.</p> <p>2. Instructions—Ignoring Evidence.—An instruction which in effect asks the court to ignore evidence is properly refused.</p>

<p>Assumpsit, for rents. Trial in the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Finding and judgment for plaintiff. Appeal by defendant.</p>

Assumpsit.—Trial in the Superior Court of Cook County, on appeal from a justice of the peace; the Hon. Arthur- H. Ohetlain, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Bill in Aid of Execution—Necessary Allegations.—In a bill to remove alleged fraudulent conveyances out of the way of an execution issued upon a judgment recovered by the complainant, it is not necessary to allege the return of an execution. It is sufficient to allege that the complainant obtained judgment and that the conveyances set forth in the bill were fraudulent.</p>

<p>Debt on Surety Bonds.—Trial in the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

<p>Creditor’s Bill.—Trial in the Circuit Court of Cook County; the Hon. John Gibbons. Judge, presiding; hearing and decree dismissing the bill. Appeal by complainant.</p>

<p>1. Pleading—By the Defendant.—The defendant may plead as many matters of fact in several pleas as he may deem necessary for his defense, and each of such pleas may be inconsistent with the others.</p> <p>2. Jury—Not to Pass upon the Issues Separately.—It is not necessary for the jury to pass on the issues formed by different pleas separately, nor is it the practice.</p> <p>3. Replevin—General Verdict in.—A general verdict for the defendant in a replevin suit is, as against the plaintiff, a finding on all the issues.</p>

<p>Certiorari .Proceedings.—Error to the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook Count)7; the Hon. Philip Stein, Judge, presiding. Verdict and judgment for plaintiff; error by defendant.

<p>1. Injunction Bond—When Good as a Voluntary Obligation.—A bond given upon the issuing of an injunction under the order of the court, although not in compliance with the statute, is a voluntary bond, given on a good consideration—to wit, the issuing of the injunction—and if so, is binding on defendant in error as such.</p>

<p>Debt, on appeal bond. Trial in the Superior Court of Cook County; the Hon. James Hoggin, Judge, presiding. Finding and judgment for plaintiff. Error by defendant.</p>

Assumpsit, for use and occupation. Trial in the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Finding and judgment for defendant. Appeal by plaintiff. Heard in the Branch

<p>1. Common Carriers—0/ Passengers, When Not Relieved of Care, etc.—Intramural carriers of passengers who invite the overcrowding of their cars for purposes of gain to themselves, are not to be relieved from the high degree of care the law requires of them, because one of their passengers lightly oversteps the limit of some rule or regulation, or resumes a position which for a temporary accommodation to the carrier he withdraws from, unless he be so warned of its dangers as to make it clear that he knew them and assumed the risk.</p> <p>2. Practice—Next Friend—Waiver.—If the defendant appear and plead, it is then too late to question the authority of the proehein ami, and the recital in the suit that the infant is suing by his next friend, is taken as conclusive that the order authorizing him to do so has been made.</p> <p>3. Damages—$3,000 Not Excessive.—A young man sued for personal injuries received by him while he was a passenger on board a cable car, and which were occasioned by the sudden flying back of an iron brake-lever, the end of the handle of which struck him on the right leg inflicting a wound three inches wide, extending from the knee on the outside of the right leg upwards for eight inches, through the tissues to the bone, the muscle lying in the track of the wound being cut. “ The function of the muscle being to strengthen the leg as it is used in walking, he could not walk on his leg without using the muscle unless he held the leg stiff." It was held that $3,000 was not excessive.</p>

Trespass on the Case, for personal injuries. Trial in .the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant. Heard in

Action for Rent.—Trial in the County Court on appeal from a justice of the peace; the Hon. D. L. Jones, Judge, presiding. Finding and judgment for plaintiff. Appeal by defendant.

<p>Assumpsit, for royalties on patents. Trial in the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Finding and judgment for plaintiff. Appeal by defendant.</p>

<p>1. Short Cause Calendar—Affidavit Must Be Filed.—Unless the affidavit required by See. 97, Ch. 110, R. S. (Hurd’s Statute, 1898, page 1219), is tiled, it is error to place a suit upon the short cause calendar and compel a party to proceed with the trial against his objection.</p> <p>3. Same—Upon What the Right to Place a Case on the Short Cause Calendar Depends.—The right to place a case upon a short cause calendar and proceed with the trial, out of its order, depends entirely upon the filing of the affidavit as provided by the statute.</p>

Assumpsit, on two checks. Trial in the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. ‘Verdict and judgment for plaintiff. Appeal by defendant. Heard in the Branch Appellate Court of the First District, at the March term, 1898.

Assumpsit, for services. Trial in the County Court of Cook County, on appeal from a justice of the peace. The Hon. C. W. Raymond, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Statutes— Construction of—Intention of the Law Makers.—In the construction of statutes, the intention of the law-giver is to be deduced from a view of the whole and every part of a statute taken and compared together. The real intention, when accurately ascertained, will always prevail over the literal sense of terms.</p> <p>2. Same —Construction of the Act of 1865.—The act of 1865 (Private Laws 1865, Vol. 1, 238), amending the act of February 14,1857, relating to the changing of the name of the Methodist Episcopal Church of Chicago, and for other purposes, and to enlarge the power thereof, is construed to embrace the making of a ground lease, as well as any other lease of the whole or any part of said premises belonging to said church, in Chicago.</p> <p>3. Trusts—Injuries Tending to Defeat the Purpose of.—An injury which tends to defeat the power of the trust to provide revenue to be applied to building up Methodist churches in Chicago must be regarded as serious.</p>

Trespass on the Case.—Death from negligent act. Trial in the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Notice — Open and Visible Possession.—A deed, though not recorded, is good as between the parties to it, and the actual, open and visible possession of the granted premises taken and held by the grantee is equivalent to notice to all third persons, of the grantee’s rights under the unrecorded deed to him.</p> <p>2. Lien—Of Subsequent Judgment and Prior Unrecorded Deed.—It would be contrary to all rules recognized by the law of this State to give priority to the lien of a subsequent" judgment over a prior unrecorded deed, where the grantee in the deed had entered and was in actual, open and visible possession under the unrecorded deed.</p> <p>3. Mortgage—By Person in Possession Without JReeord Title.— The giving of a mortgage upon land by the actual occupant of the premises, without having a title or claim of any kind of record, is so unusual a circumstance as to demand inquiry by anybody dealing with the land pending open possession thereof by the one making such mortgages.</p>

Trespass on the Case, for personal injuries. Trial in the Superior Court of' Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for personal injuries. Trial in the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for personal injuries. Trial in the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Assumpsit, for balance upon a building contract. Trial in the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Appeal from an Order of the Superior Court of Cook County, denying a motion to amend the summons, etc.; the Hon. Jonas Hutchinson, Judge, presiding.</p>

Assumpsit.—Balance due on contract for furnishing electric lighting machinery, etc. Trial in the Superior Court of Cook County; the Hon. William C. Ewing. Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Conspiracy—Owe Person Oan Not be Guilty.—One person alone can not be guilty of a conspiracy.</p>

Trespass on tlie Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Foreclosure.—Trust deed. Trial in the Circuit Court, Cook County; the Hon. Murray F. Tuley, Judge, presiding. Hearing and decree for complainant. Appeal by defendant.</p>

<p>Appeal, from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Appeal—Dismissed.—In this case the court dismisses the appeal for reasons stated in the opinion.</p>

<p>In Equity.—Foreclosure of trust deed. Appeal from the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Hearing and decree for complainant. Appeal by defendant.</p>

<p>1. Mortgages—The Mortgagee Holds Only Such Title as the Mortgagor Had.—In a proceeding to foreclose a mortgage all that is sought to be subjected to the payment of the indebtedness is whatever title the mortgagors had at the time of executing the mortgage, and the extent of that title is not open to inquiry by the mortgagor in a foreclosure suit.</p> <p>2. Laches—In Failing to Enforce a Mortgage.—A failure to enforce a mortgage indebtedness for a period of nine years after its maturity can not be considered as laches.</p>

<p>Bill for Separate Maintenance.—Trial in the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding. Hearing and decree for complainant. Appeal by defendant.</p>

<p>1. Estoppel—To Deny Ownership of Land in Condemnation Proceedings.—Where a municipal corporation recognizes a person as owner of the premises prior to condemnation proceedings, by negotiating with him for the purchase of the premises for a street, and in the petition for condemnation, and also in the verdict of the jury, such person is named as owner, it is an admission by the municipality that he is the owner.</p> <p>2. Same—To Claim, a Dedication.—Where the premises sought to be condemned, was in use by the public as a highway, and the municipality so recognized it, and by its action treated it as a highway by the institution of and prosecution to judgment of the condemnation proceedings, it is estopped to claim a dedication, or title by prescription.</p> <p>3. Condemnation Proceedings—Abandonment.—While a municipal corporation may, after judgment in condemnation proceedings, abandon the improvement, such abandonment must be in good faith.</p> <p>4. Same—When the Proceedings Can Not be Abandoned.—A municipal corporation can not, under the pretense of abandonment, repeal the ordinance ordering an improvement, and then take possession of the premises condemned and use it for the purpose contemplated by the repealed ordinance and the condemnation proceedings, and thus defeat the right of the property owner as adjudicated in the condemnation proceedings.</p> <p>5. Assumpsit—Dies for Damages in Condemnation Proceedings.— Assumpsit may be maintained for the negligent failure of a municipality to collect and pay to the owner of condemned property the damages awarded to him.</p> <p>6. Interest—In Condemnation Proceedings.—The owner of lands taken by a municipality by condemnation proceedings is entitled to interest from the time the municipality takes possession of the premises at the rate of five per cent on the amount of compensation allowed.</p>

Assumpsit, for merchandise sold and delivered. Trial in the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Appeal, from an order denying an application to file an intervening petition, entered by the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding.</p>

<p>Assumpsit.—Trial in the County Court of Cook County; the Hon. Wales W. Wood, Judge, presiding. Finding and judgment for plaintiff. Appeal by defendant.</p>

<p>Certiorari Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Hearing and order entered quashing the writ.</p>

<p>1. Damages—Evidence of Special Engagements. —While it is competent under general allegations in actions for personal injuries to sliovv the occupation and business of the plaintiff and her ordinary wages or earnings, it is not competent to show a special engagement and loss consequent.</p> <p>2. Pleading—Special Damages.—The ends of good pleading, which are to apprise the opposite party of the nature of the claim and prevent surprise, make it necessary that special damages, and the facts on which they are based, should be set out in the declaration.</p> <p>3. Same—Averments of Particular Damages.—In order to recover compensation in actions for personal injuries for inability to work at the plaintiff’s ordinary employment, all that is necessary in the declaration is the general averment of such inability, caused by the injury, and consequent loss and damage; and proof of his particular employment or business, and of his ordinary wages or earnings therein, is admissible in evidence under such general averment; but where it is sought to recover for loss of property or earnings that depend upon the performance of a special contract or engagement, then such special and particular damages, and the facts on which they are based, must be set out in the declaration.</p>

<p>1. Decrees—Must be Based upon a Bill or Petition.—Every decree in chancery in favor of a complainant must be based on a bill or petition as its foundation. Proofs without allegations are as insufficient to support a decree as allegations without proofs.</p> <p>2. Same—Allegations and Proofs Must Correspond.—The rule being that to warrant a decree for the complainant the allegations and proofs must correspond, sufficiently illustrates the necessity of a bill or petition containing proper allegations.</p> <p>i 3. Pleadings—Affidavits Filed in a Chancery Suit Are Not.—Affidavits filed in a chancery suit in support of a motion can not be considered as a pleading upon which to base a decree.</p>

Bill to Foreclose a Trust Deed.—Trial in the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Hearing and bill dismissed upon the deposit of a tender, etc. Error by complainant.

<p>1. Appeals—From Interlocutory Orders.—The right of appeal from an interlocutory order is purely statutory, and in order to give the Appellate Court jurisdiction, the statute (Ch. 22, Sec. 52) must be followed. The party taking such an appeal must give bond, to be approved by the clerk of court below, etc.</p> <p>2. Same—Duty of the Trial Court.—The court below has nothing to do in the way of granting appeal from an interlocutory order, nor of fixing the time within which the bond shall be given, its amount or approval. The statute fixes the time and manner of taking the appeal, and the bond must be approved by the clerk of the court below. Unless the statute in these respects is followed, this court acquires no jurisdiction.</p> <p>3. Same—Duty of the Court Where it Has No Jurisdiction.—Where it appears that the court is without jurisdiction, it becomes its duty, sua sponte, to dismiss the appeal.</p>

<p>Indictment, for an assault. Trial in the Criminal Court of Cook County; the Hon. William G. Ewing, Judge, presiding. Yerdict of guilty. Error by defendant.</p>

<p>Error, to the Circuit Court of Cook County.</p>

<p>1. Appellate Court Practice—Failure to File Printed Briefs.— For a disregard of Rule 20, requiring printed briefs in all cases, the court orders the appeal dismissed, unless briefs .are filed within a day named, etc.</p>

■ Assumpsit.—For lumber sold and delivered. Trial in the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Finding and judgment for defendant. Error by plaintiff.

Assumpsit, for services, etc. - Trial in the Superior Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Jury waived and cause submitted to the court. Finding and judgment for defendant. Appeal by plaintiff.

<p>1. Chattel Mortgages—Possession of the Mortgaged Property—Sale by Mortgagor—Mortgagees Remedy.—When, by the terms of a chattel mortgage, the mortgagor is entitled to the possession of the mortgaged property until default is made in the payment of the mortgaged debt, until such default the mortgagee has neither the right of property nor the right of possession, and until then the mortgagor may sell the property, but the purchaser will take only the mortgagor’s interest. The remedy of the mortgagee is to follow the lien of his mortgage in the hands of the vendee.</p> <p>2. Same—Acknowledgment and Record in Other States—Constructive Notice to Citizens of This State.—The constructive notice of a mortgage resulting from its acknowledgment and recording in the State in which it is executed, is also constructive notice in our State, and to its citizens, when the mortgaged property is removed to this State.</p> <p>3. Same—Rule Making Acknowledgment and Record in Other States Constructive Notice to Citizens in This State, Criticised.—The courts base this rule on the doctrine of interstate comity, but it seems to this court that the doctrine should not be extended to the detriment of citizens of this State. In many cases the rule that citizens of this State are bound by constructive notice of a chattel mortgage executed and recorded in another State, necessarily and inevitably operates to the detriment of such citizens.</p> <p>4. Demand -Must Be Made on the Defendant While the Property Is in His Possession. —The demand in replevin must be made on the defendant while the property is in his possession. His ability to comply with it is necessary to give the demand force and effect.</p> <p>5. Sams—Demand and Refusal Do Not Make a Conversion.—A demand and refusal do not constitute a conversion; they are, at the-most, but evidence of a conversion.</p>

<p>1. Depositions—Under Commission from a Foreign Court.—Where a commission issues from a foreign court to a person not vested with judicial authority, the proceedings before him, in the absence of a statute, are voluntary.</p> <p>3. Contempts—Refusal to Appear Before a Notary and Testify.— A Circuit Court has no authority to punish a person for contempt in refusing to obey its order to appear and testify before a notary acting under a commission from the District Court of Linn County, Iowa, to take the deposition of such person.</p>

Assumpsit, to recover back money paid on a raised draft. Trial in the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Commodity—The Term, Defined.—The primary meaning of the word commodity, according to the lexicographers, is convenience, and its secondary meaning is that which affords convenience or advantage, especially in commerce, including everything movable which is bought and sold.</p> <p>3. " Same—Bonds Are, etc.—The bonds of the Chicago Auditorium Association are a commodity within the meaning of Sec. 130 of the Criminal Code of this State, etc. The word commodity in ordinary interpretation, includes marketable bonds.</p> <p>3. Statutes—Buie of Construction.—In the construction of statutes where general words follow an enumeration of particular cases, such general words are held to apply to cases of the same kind as those which are expressly mentioned, and are not allowed a broader or more general interpretation.</p> <p>4. Same—Eocception to the Rule.—“ But this rule does not apply when the particular precedent words exhaust a whole genus; in which case the general term is held to refer to a larger class.”</p> <p>5. Gambling Contracts—Construction of See. ISO of the Criminal Code.—The intent of the legislature in enacting Sec. 130 of the Criminal Code was, not merely to protect grain, stocks and gold against dealings of a certain kind, but to prevent a known evil, viz., dealing in options, as well in other things as in grain, stocks and gold.</p> <p>6. Same— Optional Sale of Bonds.—An agreement by the seller of certain bonds to buy them back at a future time and at the same price should the purchaser desire to sell them, is an optional contract, and by force of Sec. 130 of the Criminal Code is void. (Hurd’s Statutes 1898, p. 571.)</p>

<p>Bill for an Injunction.—Appeal from the -Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

Trespass on the Case, for damage to private property for public use. Trial in the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Judgment for defendant on demurrer to declaration. Appeal by plaintiff.

Assumpsit, on a promissory note. Trial in the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Case dismissed for want of jurisdiction. Judgment for defendant for costs. Error by plaintiff.

<p>Mandamus.—Original proceedings in this court. Demurrer to petition sustained.</p>

<p>Bill to Construe a Will and for Belief.—Error to the Circuit Court of Fayette County; the Hon. James A. Creighton, Judge, presiding.</p>

<p>I. Practice—Withdrawing Erroneous Instructions.—It is not error for the court to withdraw an instruction which should not have been given. If counsel offer an erroneous instruction, which the court through inadvertence gives, he has no right to complain when the court discovers its error and corrects its action by withdrawing the instruction.</p>

Action on the Case, to recover damages for the destruction of property by fire. Trial in the Circuit Court of Clinton County; the Hon. Alonzo S. Wilderman, Judge, presiding. Verdict and judgment for defendant. Error by plaintiff.

<p>1. Opinion in Former Case—Adopted.—The opinion of the court in Carlyle Canning Co. v. The Baltimore & Ohio Southwestern Railway Company, supra, is adopted as the opinion in this case.</p>

<p>Action for Killing Stock.—Trial in the County Court of Madison County; the Hon. William: P. Early, Judge, presiding. Verdict and judgment for defendant. Appeal by plaintiff.</p>

Trespass on the Case, for personal injuries. Trial in the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Statute of Limitations—When it Begins to Run on Notes, with Provision that on Default in the Payment of Interest, the Entire Debt Becomes Due.—A provision in a note and mortgage that upon default in the payment of interest, the entire debt shall immediately become due and payable, is permissive only. It does not of itself cause the notes to mature, so as to start the running of the statute of limitations.</p> <p>2. Execution—Error to Award Costs and Execution Against an Executor.—On the dismissal of a bill against an executor, it is error to award execution against the executor for costs. A recovery against an administrator or executor should be adjudged to be paid in due course of administration.</p>

<p>1. Insurance—Contracts of, How Construed.—A contract of insurance drawn by the insurer, who makes his own terms, and imposes his own conditions, will not be tolerated as a snare to the assured, and if the words employed,“of themselves, or in connection'with other language used in the contract of insurance, or in reference to the subject-matter to which they relate, are susceptible of the interpretation given them by the assured, although in fact intended otherwise by the insurer, the policy will be construed to favor the assured.</p> <p>2. Same—Construction of Policies of Insurance.—If there is any doubt, in view of the general tenor of a policy of insurance, whether the words used are to be taken in an enlarged or restricted sense, all things being equal, that construction should be taken which is most beneficial to the assured.</p> <p>3. Same—Change of Title by Death of the Insured..—A policy of insurance containing the provision that “ if any change takes place in the title, possession or interest of the assured in the property insured, the policy shall be void,” has no application in law to a change of title caused by the death of the insured where,the policy contains a clause to make good the loss to the executors and administrators of the deceased.</p>

<p>1. Exceptions—Must be Preserved in the Bill of Exceptions.—An exception to the judgment in the judgment order, but not preserved in the bill of exceptions, is the same as no exception at all.</p>

Assumpsit, for assessments upon members of an insurance company. Trial in the Circuit Court of East St. Louis; the Hon. Benjamin H. Canby, Judge, presiding. Judgment for defendant on demurrer to declaration. Error by plaintiff.

<p>1. Findings—On Conflicting Evidence.—Findings of fact by the judge Of the trial court sitting as a chancellor, upon oral evidence, will not be disturbed unless clearly against the preponderance of the evidence.</p>

Trespass on the Case.—Death from negligent act. Trial in the City Court of East St. Louis; the Hon. Benjamin H. Canbt, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Assumpsit, on a life insurance policy. Trial in the City Court of Alton; the Hon. Alexander Hope, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

Certiorari, to quash proceedings of the board of supervisors. Trial in the Circuit Court of Union County; the Hon. Oliver A. Harker, Judge, presiding. Hearing and proceedings quashed. Appeal by respondent.

<p>1. Insurance—Condition Precedent to Suits on Policies.—A condition in a policy providing for the appraisal of the property destroyed in a case of disagreement as to the amount of loss, can not be regarded as a condition precedent to bring a suit unless there has been in fact a disagreement as to the amount of such loss.</p> <p>2. Same—What is Not a Condition Precedent in this Case.—Where the conditions of a policy on insurance provides for the appraisal of the property in case of a disagreement as to the amount of loss, such appraisal is not a necessary condition precedent unless there has been a disagreement between the parties as to the amount of loss.</p>

Trespass on the Case, to recover damages caused by the flow of water upon plaintiff’s premises. Trial in the Circuit Court of Effingham County.; the Hon. Samuel L. Dwight, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Freehold—When Involved.—In an action of trespass against the commissioners of highways who justify under the plea that the land was a public highway, from which the plaintiff had been duly notified to remove his fence and failed to do so, and that the defendants, as commissioners of highways, entered upon it and removed the fence for the purpose of opening the highway, etc., a freehold is involved and this court has no jurisdiction.</p>

1 Trespass on the Case.—Death from negligent act. Trial in the Circuit Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Verdict and judgment for defendant. Error by plaintiff.

<p>1. Insurance Companies—Construction of the Statute Relating to Foreign Companies Doing Business in This State.—The intent of the law requiring foreign insurance companies to comply with the terms imposed, as a condition for the right to do business in this State, is to protect citizens of the State from imposition by fraudulent and insolvent companies, and to facilitate collections for losses, without being compelled to go to other States to establish and .secure them.</p> <p>2. Same—To What Matters the Statute Regulating Foreign Companies Does Not Apply.—The statute relating to'foreign insurance companies doing business in this State has no relation to collateral matters that can not affect the insured one way or the other, and should not be held to embrace every act which an insurance company may find it convenient to do, as prohibited.</p>

Trespass on the Case, for personal injuries. Trial in the Circuit Court of St. Clair County; the Hon. Benjamin R. Burroughs, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for personal injuries. Trial in the Circuit Court of Wabash County; the Hon. Prince A. Pearce, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case.—Death from negligent act. Trial in the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case.—Death from negligent act. Trial in the Circuit Court of Madison County; the Hon. Martin W. Schaeffer, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for personal injuries. Trial in the City Court of East St. Louis; the Hon. Benjamin H. Canby, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Action to Recover Damages Resulting from the Obstruction of a Water-Course.—Trial in the Circuit Court of Franklin County, on appeal from a justice of the peace; the Hon. Edmund D. Youngblood, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. School Directors— Unsuitableness of a School House—Site.—The directors may decide that a school house is inconvenient or unsuitable for a school, and they are the judges of what constitutes the inconvenience or unsuitableness of the site.</p> <p>2. Same—Authorized to Call Elections.—Under paragraph 11 of section 27, chapter 122, R. S., entitled “ Schools,” the directors are authorized to call an election to determine where a school building shall be located.</p> <p>3. Same—Can Not Estop Their Successors by Selecting a School Site. —When the location of a school site is fixed at an election called by a board of directors, the power of a new board of directors to re-submit the question of location is not thereby lost, if, in their judgment, the site selected is unsuitable or inconvenient; nor is the right of the voters of the district thereby exhausted to again determine by vote where their school house shall be located.</p> <p>4. Voters—Refraining from Voting.—At a school election for selection of a school site, if voters opposed to the proposed location refrain from voting, it is their privilege; and having done so, they can not complain of the result.</p>

Trespass on the Case, for changing the natural flow of surface water. Trial in the Circuit Court of White County; the Hon. Prince A. Pearce, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for personal injuries. Trial in the City Court of East St. Louis; the Hon. Benjamin H. Canbt, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Contempt Proceedings.—Appeal from the Circuit Court of Jasper County; the Hon. William M. Farmeb, Judge, presiding.</p>

<p>1. Easements—Are Incumbrances. —A right of way appurtenant over lands conveyed is an incumbrance, and is not included in the term “highway” as used in section 9 of the conveyance act. (Hurd’s Statute 1897, 393.)</p> <p>3. Incumbrances—Breach of the Covenant.—The implied covenant existing in the deed by reason of the statute is broken by the existence in a private person of a right of way over the premises conveyed at the time of the delivery of the deed to the grantee.</p> <p>3. Equity Practice—Damages for Breaches of Covenant May be Set Off in Foreclosure Suits.—Damages resulting from the existence of an easement which occasions a breach of the covenant in a warranty deed may be set up in answer to a bill to foreclose a mortgage given to secure the purchase price.</p> <p>4 Appellate Court Pbactice—Questions Decided on a Former Appeal.—Questions once passed upon, will not be considered in a second appeal of the same case. The only errors that can be assigned are those which have arisen since the former adjudication of the case.</p> <p>5. Same—Questions Adjudicated in a Former Suit.—Where some specific fact or question has been adjudicated and determined in a former suit, and the same is- again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not.</p>

Trespass on the Case, for personal injuries. Trial in the City Court of East St. Louis; the Hon. Benjamin H. Canby, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Bill to Set Aside a Settlement of Executor’s Accounts.—Tried in the Circuit Court of Madison County; the Hon. Martin W. Schaeffer, Judge, presiding. Hearing and decree for complainant. Appeal by defendant.</p>

<p>Action to Recover Damages.—Loss of property by fire. Trial in the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

<p>1. Insurance—Duty of Insured in Case of Fires—Negligence.—Outside of any clause in a policy requiring it, it is the duty of the insured.to do all he reasonably can to extinguish a fire and to make the loss as small as may be, and when he can extinguish a fire in its incipiency and fails to do so, he is guilty of culpable negligence.</p> <p>2. Same—Culpable Negligence on the Part of the Insured.—While non-feasance by the insured may be culpable negligence, preventing others from extinguishing a fire is actual malfeasance, and will prevent a recovery under a policy of insurance by the wrongdoer.</p>

Trespass, for destroying buildings, etc. Trial in the Circuit Court of Jackson Comity; the Hon. Alonzo K. Vickers, Judge, presiding. Verdict of not guilty and judgment for defendant. Appeal by plaintiff.

Assumpsit, for labor and services. Trial in the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.'

<p>Separate Maintenance.—Trial in the Circuit Court of Effingham County; the Hon. Samuel L. Dwight, Judge, presiding, Hearing and decree for complainant. Appeal by defendant.</p>

Assumpsit, on a promissory note. Trial in the Circuit Court of Randolph County, on appeal from a justice of the peace; the Hon. George W. Wall, Judge, presiding. Verdict and judgment for defendants. Error by plaintiffs.

Trespass on the Case, for personal injuries. Trial in the City Court of East St. Louis: the Hon. Benjamin H. Canby, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for personal injuries. Trial in the City Court of East St. Louis; the Hon. Benjamin H. Canby, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for personal injuries. Trial in the City Court of East St. Louis; the Hon. Benjamin H. 'Caney, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Replevin.—Trial in the Circuit Court of Madison County; the Hon. Martin W. Schaeffer, Judge, presiding; finding and judgment for plaintiff; appeal by defendant.</p>

<p>1. Administration of Estates—Credits for Money Charged by Misapprehension.—Where an administrator charged himself with pension money as assets of the estate, due to his intestate, but not collected at the time of her death, and afterward learned that accrued pensions were not to be considered as assets of the estate of a deceased pensioner, it was held that he was entitled to be credited with the amount in his final report.</p> <p>2. Injuries—From Mere Negligence—Privity Necessary to a Recovery.—In an injury arising from mere negligence, however gross, there must exist between the party inflicting the injury and the one injured, some privity, by contract or. otherwise, by reason of which the former owes some legal duty to the latter.</p>

Trespass on the Case, for personal injuries. Trial in the Circuit Court of Washington County; the Hon. Benjamin R. Burroughs, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Assumpsit, on a promissory note. Trial in the Circuit Court of Wabash County; the Hon. Prince A. Pearce, Judge, presiding. Finding and judgment for plaintiff. Appeal by defendant.</p>

Trespass on the Case.—Death from negligent act. Trial in the Circuit, Court of St. Clair County; the Hon. Alonzo S. Wilderman, Judge, presiding. Verdict and judgment for plaintiffs. Appeal by defendant.

Assumpsit, by a benefit association, on a certificate, etc. Trial in the Circuit Court of Williamson County; the Hon. Oliver A. Harker, Judge, presiding. Finding and judgment for plaintiff. Appeal by defendant.

Replevin.—Trial in the Circuit Court of Pulaski County on appeal from a justice of the peace; the Hon. Joseph P. Robarts, Judge, presiding. Judgment and verdict for defendant. Appeal by plaintiff.

Assumpsit, to recover damages sustained in transportation of wheat by a common carrier. Trial in the County Court of Crawford County; the Hon. John C. Eagleton, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant,

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of 'Madison County; the Hon. Martin W. Schaeffer, Judge, presiding.</p>

<p>Voluntary Assignments.—Error to the County Court of Clay County; the Hon. Ben. Hague, Judge, presiding.</p>

<p>1. Verdicts—Unsupported by the Evidence.—When there is an entire lack of evidence to support a verdict the judgment based upon it must be reversed.</p>

Attachment.—Trial in the Circuit Court of St. Clair County, on appeal from a justice of the peace; verdict and judgment for plaintiff Appeal by defendant.

Assumpsit, for breach of marriage contract. Trial in the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Alteration op Instruments—Ratification.—A payment on either principal or interest with knowledge of the alteration,- amounts to a ratification and removes the presumptive effect of the alteration.</p> <p>2. Same—Addition of an Attesting Witness.—In order to show that the addition of an attesting clause and witness to a promissoiy note made in another State is material, the law of such State, making the alteration so, must be proved.</p> <p>3. Pleading—Pleas Must Deny or Confess and Avoid.—A plea must deny or confess and avoid.</p>

<p>1, Equity Practice—When Interlocutory Deorees Become Final.— When a party moves to amend an interlocutory decree of a former term requiring him to account, etc., in certain matters, he is at the final hearing bound by the terms of that decree. The denial of his motion to change, amend or modify it, and the same not having been modified or changed by the court, gives it all the force and effect of a final decree, as to the matters therein adjudicated.</p> <p>2. Trustees—Not Entitled to Compensation Unless by Contract.— A trustee can not receive compensation for his services as such, without a contract therefor.</p>

<p>1. Surface Waters—Commissioners of Highways Can Not Change the Course of.—The commissioners of highways can not, by building a bridge across the highway, change the natural flow of surface water, so as to cast upon adjacent lands water which would not have come upon such premises in a state of nature, but which would have passed in another direction over the lands of others, and reached the highway at a bridge already in the road.</p> <p>2. Equity Practice—Pleading and Proofs Must Correspond.—The rule that a party can not make one case by his pleadings and a different one by his proofs, is applicable to a defendant as well as to a complainant. The defendant is bound to apprise the complainant by his answer of the nature of the defense he intends to set up, and can not avail himself of any matter not stated in his answer even though it appears in evidence.</p> <p>3. Commissioners of Highways— Can Not Plead Prescriptive Rights Existing in Adjacent Land Owners.—In a suit against the commissioners of highways for changing the flow of surface waters, the commissioners can not plead prescriptive rights as to the flow of the water existing in the owners of the adjacent land, who are neither parties to the suit nor asking any relief in the premises.</p> <p>4. Same—Can Not Can'y on a Litigation for the Benefit of Strangers, —The highway commissioners have no right to injure one land owner for the purpose of benefiting another. They should not take it upon themselves to determine questions as to the flow of water, nor to initiate changes in the course of its flow, or carry on litigation for the benefit of adjacent land owners.</p>

<p>1. Verdicts—Against the Weight of the Evidence.—In this case the judgment is reversed and remanded because the verdict is against the weight of the evidence.</p>

Assumpsit, on a contract for physician’s services. Trial in the Circuit Court of Knox County; the Hon. John A. Gray, Judge, presiding. Verdict and judgment for defendant. Appeal by plaintiff.

<p>1. Equity Practice—Order Sustaining a Demurrer Not Final.—A bill in equity is not necessarily put out of court by sustaining a demurrer to it. It is only from a decree making a final disposition of a case that an appeal or writ of error lies.</p> <p>2. Same—Final Order After a Demurrer is Sustained,—A complainant willing to rest his case upon a demurrer must move the court to dismiss the bill, and when that is done, the order of dismissal is final, and appeal or writ of error will lie.</p> <p>3. Same—Order Sustaining a Demurrer Interlocutory.—In chancery practice an order sustaining a demurrer to a bill is an interlocutory order.</p>

Assumpsit, on a promise to pay the amount of a claim. Trial in the Circuit Court of Jo Daviess County; the Hon. James S. Batjme, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Assumpsit, for work, labor, etc. Trial in the Circuit Court of Boone County;' the Hon. Charles E. Fuller, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Bastardy Proceedings.—Motion to vacate satisfaction of judgment/ Appeal from the County Court of Peoria County; the Hon. Robert H. Lovett, Judge, presiding.</p>

<p>Creditor’s Bill.—Trial in the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Hearing and judgment for defendant, on demurrer. Appeal by plaintiff.</p>

Trespass on the Case, for personal injuries.' Trial in the Circuit Court of Winnebago County; the Hon. John C. Carver, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Assumpsit, to recover the contract price of a steam engine. Trial in the Circuit Court of Du Page County; the Hon. Charles A. Bishop, Judge, presiding. Verdict and judgment for plaintiff. Appeal by plaintiff.

Trespass on tile Case, for damages resulting from the sale of intoxicating liquors. Trial in the Circuit Court of DeKalb County; the Hon. Henry B. Willis, Judge, presiding. Verdict and judgment for plaintiffs. Appeal by defendant.

<p>1. Tender—As an Admission of the Amount Dm.—The tender of an amount is evidence tending to show an admission of a sum due to the person to whom the tender is made.</p> <p>2. Evidence—Tending to Shoiv an Agent’s Authority, Competent.— When a party has dealings with another as agent of a third party, and! the proof upon the question of the agent’s authority is conflicting, evidence tending to show that the act in question was done by such person under proper authority, is competent.</p>

Voluntary Assignments.—Petition to set aside an order discontinuing proceedings. Entered by the County Court of Lake County; the Hon. DeWitt L. Jones, Judge, presiding. Hearing and petition denied. Appeal by petitioners.

<p>Proceedings in Probate.—Trial in the Circuit Court of Knox County; the Hon. John A. Gray, Judge, presiding. Verdict and judgment for claimant. Appeal by the administrator.</p>

<p>1. Fraud—Not to be Presumed.—Fraud is never to be presumed; it must be proved, and a decree upon a creditor’s bill which can not be sustained without presuming fraud, will be reversed.</p>

<p>1. Fraud—What Can Not be Considered as.—Fraud can not be attributed to a person who, in failing circumstances, with property liable to be sacrificed at execution sales, sells it for a fair consideration and applies the proceeds to the payment of bona fide creditors.</p>