Volume 79 — Illinois Appellate Court Reports

<p>Bill to Restrain the Collection of a Judgment.—Trial in the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Decree dismissing the bill. Appeal by complainants.</p>

Trespass on tile Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Arthur. H. Chetlain, Judge, presiding. Judgment for defendant on demurrer to declaration. Error by plaintiff.

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Judgment for defendant on demurrer to replication. Appeal by plaintiff.

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Verdict for defendant by direction of the court. Error by plaintiff.

Assumpsit, for merchandise sold and delivered. Trial in the Superior Court of Cook County; the Hon. Theodore Brentano, 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. Charles Gr. Neely, Judge, presiding. Judgment for defendant on demurrer to declaration. Appeal by plaintiff.

<p>1. Payments—Giving a Note or Draft, When.—In order to make the giving of a note or draft payment of a debt, there must be an agreement to that effect between the debtor and the creditor. The mere acquiescence of the debtor to the arrangement is not enough. The creditor must also consent before he is bound.</p> <p>2. Notice—To the Officials of the State.—The statute provides for a written notice to the officials of this State, etc.,-but it does not provide how or upon whom the notice shall be served.</p> <p>3. Same—Service upon the Sanitary Trustees.—Leaving a written notice with the clerk in charge of trustees’ office is a sufficient service upon the trustees of the Sanitary District.</p>

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

Assumpsit, for material and labor. Trial in the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Finding and judgment for plaintiff. Appeal by defendant.

<p>Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; The Hon. James Goggin, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

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

Claim in Probate.-—Trial in the Circuit Court of Cook County, on appeal from the Probate Court of said county; the Hon. Richard S. Tuthill, Judge, presiding. Finding and judgment for claimant. Error by defendant.

Trespass on the Case, for personal injuries. Trial in the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant. Appellee brought this action against appellants, his employers, to recover for personal injuries sustained, as it was alleged, through the negligence of appellants.

<p>1. Contracts—Consideration—Compromise of Doubtful Rights.—• The compromise of a doubtful right is a sufficient consideration for an agreement settling a litigated dispute.</p>

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Fablin Q. Ball, Judge, presiding'. Verdict and judgment for plaintiff. Appeal by defendant. This suit was brought by appellee to recover damages for personal injuries which resulted from the falling of a door in the foundry of appellant. The declaration contains two counts, one of which was filed by leave of court after the cause was upon trial.

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

Bill to Enforce an Agreement.—Trial in the Circuit Court of Cook County; the Hon. Oliver H. 'Horton, Judge, presiding. Hearing and decree dismissing the bill for want of equity. Error by complainants. Heard in this court at the March term, 1898.

<p>Assumpsit, on a policy of life insurance. Trial in the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

<p>Appeal from Superior Court of Cook County.</p>

Appeal, from an interlocutory order granting an injunction entered by the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Held: in pursuance of the statute, for the purpose of determining whether the association should continue business, re-organize its affairs or go into voluntary liquidation.

<p>Appeal from Circuit Court of Cook County.</p>

<p>1. Judgments by Confession— Where the Evidence on a Motion to Vacate Is Conflicting.—Where the evidence on a motion to vacate a judgment by confession is conflicting, and the contested matter in doubt, the motion should be allowed.</p>

<p>1. Equity Pleadings—Sufficient Allegations of a Sheriff’s Return in a Creditor’s Bill.—The allegation that “he, said sheriff, therefore returned the same no property found and no part satisfied, as by said writ of execution and the return of the said sheriff indorsed thereon as aforesaid, now on file in the office of said Superior Court, will more fully appear, and to which, or to a copy thereof, your orator prays leave to refer,” is a sufficient allegation of a return nulla bona, to give the court jurisdiction to entertain a creditor’s bill.</p> <p>2. Equity Practice—A General Prayer for Relief.—A prayer in a bill “ that the defendants stand to, abide by, and perform such'order and decree as to the court shall seem agreeable to equity and good conscience,” is in substance a prayer for general relief, and will justify the court in giving any relief which is consistent with the allegations of the bill and warranted by the proof.</p> <p>3. Same—Return Nulla Bona, When an Unnecessary Allegation.— In a bill to set aside a fraudulent conveyance, a return of the execution nulla bona is unnecessary to give the court jurisdiction.</p> <p>4. Remedies—A Party Must Appeal—He Can Not Stand in Defiance of the Court.—If a court has jurisdiction of the parties and authority to render an order, a party can not stand in defiance of it, however improvidently or erroneously made.</p> <p>5. Contempts—Of Court—Obedience to be Enforced.—In order to enforce obedience a court may imprison or fine an offender, or do both, as to it, under all. the ..circumstances, seems just, and best calculated to compel obedience.</p> <p>6. Same—Where the Act Is Not Willful.—Where the act of contempt does not appear to be at all willful or defiant, but merely the exercise of a supposed right, under advice taken and given in good faith, it does not deserve severe punishment as such, but the party offending should make his adversary whole as to the damages sustained thereby.</p> <p>7. Same—Excessive Fines.—The court holds that in this case a smaller fine or imprisonment alone would have been sufficient to enforce obedience to the order in question and to maintain the dignity of the court, and for that reason reverses the order imposing the fine and remands the cause for further proceedings not inconsistent with this opinion.</p>

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

<p>Debt, on an appeal bond. Trial in the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Judgment for plaintiff upon demurrer. Appeal by defendant.</p>

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.

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

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Fablin Q. Ball, Judge,' presiding. Verdict and judgment for plaintiff. Appeal by befendant.

Bill for an Accounting, and adjustment of partnership transactions. Trial in the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding. Hearing and decree for complainant. Appeal by defendant.

<p>Assumpsit, on a certificate of a beneficiary society. Trial in the Superior Court of Cook County; the Hon. Faklin Q. Ball, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

<p>1. Voluntary Assignments—Recovery of Money Fraudulently Paid by Collusion of the Assignor.—If an insolvent could | not recover moneys fraudulently paid as salary to an employe, neither can the assignee nor the creditors acting in his stead recover them.</p> <p>2. Same—Where the Assignor Could Not Recover, the Assignee or Creditors Can Not.—Where an insolvent assignor could not have invoked the aid of a court at law or in equity to recover back moneys fraudulently paid, the creditors, acting in lieu of his assignee, can not do so.</p> <p>8. Corporations—-Money Fraudulently Paid to Officers.—Where a corporation unlawfully and fraudulently agrees to pay moneys to one of its officers, and in accord with such agreement pays a portion thereof, the corporation and the officers being in pari delicto, the courts will neither aid the one in enforcing the agreement nor the other in recovering back moneys paid under it.</p> <p>4. Same—Presumed Powers of the President.—A president of a corporation will be presumed to have had authority to transact the ordinary business of the corporation.</p> <p>5. Same—Duty of the President in Transacting Business.—In the transaction of the business of the corporation the president is bound only to exercise his best skill and ability, with such care and diligence as might be expected in his own affairs. He can not be charged with the consequences of an honest error of judgment.</p> <p>6. Same—Managers—When Not Liable for Fraud.—The manager of a corporation is not liable for fraud in every instance where an error of judgment occurs in his management.</p> <p>7. Remedies—Illegal Agreements.—Where parties concerned in illegal agreements are in pari delicto, the law will not aid either, but will leave them without remedy against each other.</p>

Appeal, from an interlocutory order or temporary injunction restraining the Sanitary District of Chicago and its treasurer from paying money, etc. Entered by the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.

<p>1. Benefit Societies—Payment of Assessments to Local Lodges.— Where the local lodge of a mutual benefit society admits a member, collects his admission fee and all assessments levied upon him, and remits such assessments to the supreme lodge or directory of the society, such local lodge is to be regarded as the agent of the supreme lodge or directory, to the extent that payment of assessments to it is a payment to the higher body of the order; and its default in- paying to the higher body of the order the assessments paid to it by its members, does not affect the rights of such members.</p> <p>2. Same —Recovering Double Assessments.—Where double assessments were paid and remitted to the supreme body of the order, with notice that they were paid by a member claiming to be entitled to double benefits, such moneys can not be thus received and retained without obligating the supreme body to carry out the provisions of the order which govern in cases wherein double assessments are paid.</p>

<p>1. Injunctions—What Is an Order Vacating,—An order reciting that “ the order of court permitting an amendment, and the filing of the amendment in accordance therewith vacated the injunction,” is a sufficient order of court dissolving the injunction, for the purpose of assessing damages.</p> <p>2. Same—Measure of Damages on Dissolution—Attorney’s Fees.—A reasonable and fair compensation should be allowed to the defendant for money actually paid to an attorney, or a liability fairly and honestly incurred to pay an attorney to procure the dissolution of the injunction— such a fee only as he would pay if he had no hope of being reimbursed.</p> <p>3. Same—Dissolution—Damages Allowed by Statute.—The statute only allows the assessment of damages sustained by reason of improperly suing out an injunction, and the damages must be confined alone to that ground. The charge for attorney fees can only extend to the motion to dissolve the injunction.</p>

<p>1. Appellate Court Practice—Motions for Leave to File Supplementary Records—When to be Made.—Where a paper, purporting by the clerk's certificate to be a complete transcript of the record, is filed in the time allowed by Section 73 of the Practice Act, an application for leave to file a supplementary record must be made within the first two days of the term, and not having been so made, the court is powerless to grant it.</p> <p>3. Same—Filing Transcripts of the Record.—If the appellant is unable to procure a complete transcript within the time prescribed by the statute, he should file a transcript of so much of the record as he is able to obtain, and within the time prescribed make an application for an extension of time to complete the record.</p> <p>8. Same—Where a Complete Transcript Is Not Obtainable.—If the appellant is unable to procure a complete transcript of the record in proper time, he may file a transcript of so much of the record as is obtainable, place the cause upon the docket and enter a motion for further time in which to bring in the remaining portion of the record.</p> <p>4. Same—Filing a Partial Record Sufficient to Give the Court Jurisdiction.—Filing a transcript of the record, purporting by the clerk’s certificate to be a partial transcript, is sufficient to give the court jurisdiction.</p> <p>5. Same—Diminution of Records Purporting to be Compílete.—A diminution of the record, purporting by the clerk’s certificate to be only a partial record, may be suggested aft.er the expiration of the first two days of the term, and leave then given to file an additional or supplementary record, on good cause shown.</p>

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

Assumpsit, for the recovery of rent. Trial in the Superior Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Finding and judgment for defendant. Appeal by plaintiff.

<p>Trespass, for assault and battery. Trial in the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.</p>

<p>Assumpsit, on promissory notes. Appeal from the Superior Court of Cook County; the Hon. Joseph P. Gary, Judge, presiding.</p>

<p>Divorce.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding.</p>

<p>Suit to Foreclose a Trust Deed.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

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

<p>1. Consideration— When Unnecessary—Guaranty.—Where a person guarantees a note before its delivery, the consideration for the note is the consideration for the guaranty, and no new consideration moving to the guarantor is necessary to support the guaranty.</p>

Assumpsit, on the common counts, to recover certain money claimed to have been furnished, etc. Trial in the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Appeal from the Circuit Court of Cook County.</p>

<p>Appeal from the Superior Court of Cook County.</p>

<p>Appeal from the Superior Court of Cook County.</p>

<p>1. Recovery—On Replevin Bond Includes All Damages Sustained.— After the plaintiff has been defeated in a replevin suit, and a return_ of the property awarded, the defendant may have full satisfaction in a suit brought upon the bond, but he can not afterward maintain an action for vindictive damages sustained by reason of such replevin suit.</p> <p>2. Merger—Where There Is but a Single Cause of Action.—Where there is but a single cause of action, a judgment in one .suit brought upon that cause merges not only the part .brought directly in question in that suit, but the entire cause of action is merged in the judgment, regardless of the question whether or not the party suing has recovered all that he might have recovered in some other form of action, which he had the election to bring.</p> <p>3. Defenses—Matter Arising After Suit and Before Plea. —Matters o£ defense arising after suit brought and before plea, can not be pleaded in bar of the action generally, but by prior leave of the court, must be pleaded to the further prosecution of the suit.</p> <p>4. Same—Matter Arising After Plea.—Matters of defense arising after suit brought and after plea, and either before or after issue joined, must be pleaded puis darrein continuance.</p> <p>5. Same—In Actions on the Case.—In actions on the case the defendant may, under the general issue, give in evidence a release, a former recovery, a satisfaction or any other subsequent matter, which shows that the cause of action has been discharged, or that in equity and good conscience the plaintiff ought not to recover, without regard to whether it was before or after action begun, or issues joined, in the suit at trial.</p>

<p>Assumpsit, on a beneficiary certificate. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.</p>

Assumpsit, upon a policy of accident insurance. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. This was a suit to recover upon a policy of accident insurance. The insured was killed while attempting to board a suburban train on the Illinois Central Railway.

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. This is an action to recover damages for personal injury. The appellee was a laborer employed in the basement of the factory building of appellants, who are manufacturers of soap. His ordinary employment was to assist one Schultz, another employe, from whom he received orders.

<p>1. Physicians—Services in Law Suits.—If a physician, at the request of a party to a suit, performs extra services, it is entirely proper and legal for him to receive pay therefor, and to make an agreement whereby he is to receive such payment.</p>

<p>Appeal from the County Court of Cook County; the Hon. H. W. Johnson, Judge, presiding.</p>

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

<p>Trespass, for breaking and entering appellee’s dwelling. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

Assumpsit, for goods sold, etc. Trial in the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>Interlocutory appeal</p>

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

<p>1. Damages—Unliquidated, Defined. —Uncertain or unliquidated damages are such as rest in opinion only, and must be ascertained by a jury, their verdict being regulated by the peculiar circumstances of each particular case.</p> <p>2. Same—Where Not Unliquidated.—When the damages can be determined by computing the difference between the contract price and the market value, they are not unliquidated damages.</p> <p>3. Interest—When to he Allowed.—Interest can only be allowed “ on money withheld by an unreasonable and vexatious delay of payment.” Such delay must be both “ unreasonable and vexatious.”</p> <p>4. Set-offs—To he Encouraged.—Set-offs are to be encouraged, as they lessen the amount of litigation by preventing circuity of action.</p>

<p>1. Bill of Exceptions—May be Amended at a Subsequent Term.—A bill of exceptions which does not fairly and truly represent what actually transpired during a trial may be amended at a subsequent term, by order of the trial judge, upon motion and notice to the adverse party, so as to make it conform to the real facts, especially if no intervening rights will be sacrificed thereby.</p> <p>3. Same—When Signed and Sealed by the Trial Judge, and Filed in the Cause, Becomes a Part of the Record.—When signed and sealed, and filed, the bill of exceptions becomes a part of the record, and stands upon the same footing, and after the term, can be amended the same as any other part of the record.</p> <p>3. ■ Practice—An Exception to Overruling a Motion for New Trial a Prerequisite to Considering the Sufficiency of the Evidence on Appeal. —A motion for a new trial, and an exception to the order of the court overruling the same, is a prerequisite to a consideration upon appeal of the sufficiency of the evidence to support the verdict, but instructions may be considered without such motion and exception.</p> <p>4. Appellate Court Practice— Where the Bill of Exceptions Contains No Motion for a New Trial.—The Appellate Court may properly refuse to consider an assignment of error which questions the correctness of the action of the trial court in giving or refusing instructions, where the bill of exceptions contains no motion for a new trial, no decision of the court in overruling such a motion, and no exception to such a decision.</p> <p>5. Same—Motions for a New Trial Necessary.—The sufficiency of the evidence to support a verdict can not be inquired into, upon appeal, where the trial is by jury, unless there is a motion for new trial and an exception preserved to the overruling of the same; but where the propriety of giving or refusing instructions is sought to be presented, neither a motion for a new trial nor all the evidence in the case is required to be inserted.</p> <p>6. Waiver—A Promise to Pay, Where a Waiver of Defects.—A promise to pay for an article, with knowledge of its defects, is a waiver of such defects, and a person so promising is estopped from setting up such defects as an excuse for non-payment.</p> <p>f, 7. Instructions—Assuming the Existence of Material Facts.—An instruction which assumes the existence of a material fact in dispute, is erroneous.</p>

Bill for an Injunction, etc. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.

This case holds that a note given by a son at his father’s request, for the father’s existing debt, and made payable at a future day, is not void for want of consideration, and operated as a suspension of the right of appellee to enforce payment of the debt against the father.

Trespass on the Case, for goods lost by a guest at a hotel. Trial in the Superior Court of Cook County'; the Hon. Theodore Brentano, 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. John Barton Payne, Judge, presiding. Verdict for defendants by direction of the court. Error by plaintiff.

<p>1. Fraud—Must be Proved as Alleged.—Fraud in fact being charged must be proved as alleged by a preponderance of the evidence.</p>

<p>Claims in Probate.—Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.</p>

<p>1. Building Associations—Bound by the Acts of Agents—Estoppel. —A building association is bound by the acts of its accredited agents, the same as other corporations under like circumstances, and is estopped by their action from denying that it assumed and agreed to pay an incumbrance according to the conditions of the deed conveying to it the property in question.</p> <p>2. Same—Power of Officers to Assume Incumbrances.—Under the circumstances of ■ this case, where almost the entire management is left in the hands of certain officers, assuming an incumbrance by a building association, under a clause inserted in a deed of conveyance to it by a borrower, is within the scope of the powers implied by, if not actually conferred upon its officers by the association, so far, at least, as third parties are concerned.</p> <p>3. Same—Ultra Vires.—Where a building association purchases real estate upon which it holds a mortgage, and as part consideration therefor, assumes and agrees to pay an incumbrance upon other real estate, such contract is not beyond the scope of its powers, and will be enforced.</p>

<p>1. Sales—Where Fraudulent per se, Possession.— Absolute sales of chattel property, where possession is permitted to remain with the vendor, are fraudulent per se and void as to creditors and purchasers, unless the retention of possession by the vendor is consistent with the provisions of the deed of transfer or bill of sale; in all such cases the vendor’s possession is not merely evidence of fraud, but, by legal inference, is fraud in itself, and can not be rebutted, although the parties may have acted in the best of faith.</p> <p>3. Public Policy— Collusive Transfers of Property.—The rule that sales of chattel property, where possession is not consistent with the provisions of the deed of transfer, or bill of sale, and remains with the vendor, is founded in public policy, and is designed to prevent secret and collusive transfers of property, and the procurement of credit upon an apparent ownership different from that which really exists.</p> <p>3. Sales—Possession Remaining in the Vendor.—1The law will not permit the owner of personal property to sell it, and still continue in the possession of it. Possession being one of the strongest evidences of title to personal property, if the real ownership is suffered to be in one, and the apparent ownership in another, the latter gains credit as owner and is thus enabled to practice deceit. An absolute sale of personal property, where the possession is permitted to remain with the vendor, is fraudulent per se and void as to creditors and purchasers.</p> <p>4. Same—Where the Vendee Will Be Protected.—If there has been an actual, open, substantial and exclusive change of possession, that follows the title, the vendee will be protected from the creditors of the vendor except for fraud in fact: and whether the fraudulent intent, or fraud in fact exists, is a question of fact to be established by extrinsic proof.</p> <p>5. Same—Signs as Indicative of a Change in Possession.—There is no law that requires a business man to put his name upon his place of business, as a prerequisite to its full ownership by him.</p> <p>6. Words and Phrases—“ Outward“ open,” “ actual, ” “ visible,” “substantial,” and “exclusive.”— The words “outward,” “open,” “ actual,” “ substantial ” and “ exclusive,” in connection with a change of possession, mean substantially the same thing. They mean “ not concealed,” “ not hidden, exposed to view,” “ free from concealment, dissimulation, reserve or disguise;” “ in full existence; denoting that which not merely can be, but is; opposed to potential, apparent, constructive and imaginary; ” “ veritable, genuine, certain, absolute; ” “ real, at present time, as a matter of fact:" “ not merely nominal; opposed to form; ” “ actually existing; true;” “not including, admitting or pertaining to any others; undivided; sole;” “ opposed to inclusive,”</p>

<p>Voluntary Assignment.—Appeal from the County Court of Cook County; the Hon. Richard Tates, Judge, presiding.</p>

<p>1. Evidence—Prima Facie Case—Rebutter.—Where the evidence cleai’ly tends to support the case declared upon, and is sufficient to make a prima facie case for the plaintiff, the burden is then shifted upon the defendant to exonerate himself from liability.</p> <p>2. Same—Where Conflicting, Province of the Jury.—Where the evidence in support of and against the theory of a case stated in the declaration is conflicting, it is for the jury to decide upon which side the preponderance and weight of the evidence lies.</p> <p>3. Damages—Presumption as to Knowledge of Witnesses.—Every one is presumed to have some idea of the value of property which is in almost universal use.</p> <p>4. Instructions—Error Will Not Always Reverse.—In case of numerous instructions, and some are refused which are unobjectionable in themselves, it is not reversible error, if those given contain all that is necessary to advise the jury of the legal principles involved.</p>

<p>Proceeding to Perpetuate Testimony.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>Trespass to Personal Property.—Trial in the Circuit Court of Macon County; the Hon. Ferdinand Bookwalter, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

<p>Certiorari.—Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding.</p>

<p>Trespass on the Case, for slander. Trial in the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Verdict and judgment for defendant. Appeal by plaintiff.</p>

<p>Debt, on a cost bond. Trial in the Circuit Court of Schuyler County; the Hon. Harry Higbee, Judge, presiding. Finding and judgment for defendants. Error by plaintiff.</p>

Debt, on a saloon keeper’s bond. Trial in the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Judgment for plaintiff on demurrer to pleas. Error by defendants.

<p>Trespass on the Case, for wrongfully converting the landlord’s rent corn. Trial in the Circuit Court of Moultrie County; the Hon. Edward P. Vail, Judge, presiding. Finding for defendant. Appeal by plaintiff.</p>

<p>1. Attorney Fees—Jurisdiction of the County Court in Voluntary Assignment Proceedings.—The County Court has jurisdiction to hear and determine the claim of an attorney against the assets of an insolvent in the custody of an assignee for services rendered in adding property to the assets of the estate.</p> <p>2. Attorney' and Client—An Employment Must be Shown.—An attorney employed by a creditor to collect, his claim from .an insolvent estate, who institutes proceedings to increase the assets of such estate, and is successful in so doing, in the absence of an employment, express or implied, by the assignee, can not recover from the estate.</p>

<p>Assumpsit.—Attachment proceedings. Trial in the County Court of McLean County; the Hon. R. A. Russell, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

<p>1. Equity Practice—Where One Party Has a Lien upon Tu-o Funds.—Where one party has a lien or interest in two funds for a debt, and another party has a lien on or an interest in only one of the funds for another debt, the latter party has the right in equity to compel the former to resort to the other fund in the first instance for satisfaction, if that course is necessary for the satisfaction of both; but this rule will not be applied where it will operate to the prejudice of the party entitled to the double fund.</p> <p>2. Variance—Judgment and Execution.—Where a judgment is entered in vacation and the execution issued upon it refers to the judgment as having been entered in term time, such reference, when merely an error of the clerk, should be disregarded as surplusage.</p> <p>3. Voluntary Assignments—Judgments Confessed on the Eve of— Preferences.—Where judgments are confessed in favor of creditors on the eve of an assignment with the knowledge and procurement of such creditors, and intended as preferences, in contemplation of the assignment such judgments are void as preferences.</p>

<p>Bill, to compel the removal of obstructions from a water-course, etc. Error to the Circuit Court of Douglas County; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>1. Building and Loan Associations — Mortgage Foreclosure for Non-payment of Interest, Fines, etc. —When a building association forecloses a mortgage, for the non-payment for the space of six months of installments of interest and fines, by borrowing stockholders, the proceedings must be authorized by the board of directors.</p>

Assumpsit, on a promissory note. Trial in the County Court of Schuyler County, on appeal from a justice of the peace. Finding and judgment for defendant. Appeal by plaintiff.

<p>1. Chancery Practice—Foreclosure of Several Mortgages in One Suit.—Where several mortgages upon separate parcels of land are foreclosed together, the decree must find the amount due upon each, and not the aggregate amount secured by all.</p> <p>2. Same—Allowance of Attorney Fees, etc.—It is error to allow attorney fees in a foreclosure suit unless there is some averment or prayer in the bill concerning it. If the mortgage makes provision for an attorney’s fee in the event of a foreclosure, and the bill makes the mortgage or a copy of it a part of the bill, the prayer for an accounting, to ascertain the amount due, will justify the taking of proof as to such fee and allowance of it in the decree.</p> <p>3. Same—Copies Filed, When Not a Part of the Bill.—A copy of a mortgage filed after the master has taken proofs, is filed too late to be considered as part of the bill.</p>

Trespass on the Case, for personal injuries. Trial in the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Gifts—Causa Mortis Defined.—A gift causa mortis is a gift of personal property, made by a party in expectation of death, then imminent, upon the condition that the property shall belong to the donee in case the donor die as anticipated, leaving the donee surviving.</p> <p>2. Same—Inter vivos—A gift inter vivos, is one made without the expectation of death as a moving cause, and to its validity it is necessary that the thing given to the donee be delivered with such change of possession as to put it out of the power of the donor to repossess himself of it.</p> <p>3. Same—Old Age Not Alone a Sufficient Causa Mortis.—It is not sufficient merely that the donor, being an old man, realizes that in the natural course of things he must soon die; but it is necessary to the validity of a gift causa mortis that he at the time be stricken with some disorder that makes death imminent.</p> <p>4. Gifts—Inter vivos—Essentials.—To constitute a gift inter vivos it is essential that the gift take effect at once and completely. The donor must relinquish all present and future dominion over the subject-matter of the gift. If delivered to his agent to be subsequently delivered to the donee, he may at any time before the agent acts revoke his authority. His death before delivery revokes such authority.</p>

<p>1. Practice—Where Issues of Fact Are Formed.—Where issues of fact are formed, it is the right of the parties, unless waived, to have the evidence heard, either by deposition .or orally, in open court, and thus secure the right of cross-examination of the witnesses.</p> <p>2. Same—Issues of Fact and Final Decrees.—Where a cause with issues of fact formed is not submitted for hearing upon the merits, the court can not enter a final decree.</p>

Trespass on tile Case, for fraud and deceit. Trial in the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant-

' Trespass on the Case, for personal injuries. Trial in the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Trespass on the Case, for maliciously entering a judgment on a cognovit. Trial in the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Judgment for the defendant on demurrer to declaration. Appeal by plaintiff.

<p>1. Practice—On Dismissal of Suits in Replevin.—Where a plaintiff in a replevin suit suffers a non-suit and the defendant omits to move the court to enter judgment for the return of the property—in the' absence of such motion, and a bill of exceptions showing it with the evidence heard, the ruling of the court and exceptions thereto by the party against whom such ruling was made—this court will presume that the judgment of the court below is right.</p> <p>2. Presumptions—In Favor of Judgments.—Every presumption is in favor of the regularity of the judgment of a court of general jurisdiction, and the burden is upon him who alleges error to affirmatively show the same.</p> <p>3. Construction of Statutes—Section 22, Chapter 119, R. S., .Replevin.—The mandate in Section 22 of Chapter 119, R. S., entitled “ Replevin,” that a judgment shall be given for a return of the property in all cases of non-suit, is not unconditional, but is subject to the proviso that if the plaintiff, between the time of commencing the suit and suffering the non-suit, shall have become entitled to the possession of the property, judgment may be given against him for costs and such damages as the defendant shall have sustained.</p>

<p>1. Cities and Villages—Under No Obligation to Construct Crossings.—A city is under no obligation to construct a crossing over an alley connecting the walks of the street, but if it elects to leave such alley in its natural state, it is its duty to keep it free from obstructions; and if it allows persons to place loose boards there, which, by reason of their becoming warped and shifted about, renders it dangerous for persons having occasion to cross such alley, it will be liable to the same extent that it would be had it undertaken to construct a crossing and allowed it to become out of repair.</p>

<p>1. Appellate Court Practice— Waiver of the Eight to Call in Question the Admissibility of Evidence.—Where a motion for anew trial does not contain any claim that the court admitted improper evidence in the trial, the appellant waives his right to assign the same as a ground for a reversal of the judgment.</p>

<p>1. Forcible Entry and Detai ner—Effect of Possession Without a Writ of Restitution.—Where a plaintiff, in an action for forcible entry and detainer, recovers a judgment and afterward obtains possession peaceably and without the aid of a writ of restitution, it is a complete satisfaction of the judgment, except the costs, and he can not have a writ of restitution under it afterward.</p> <p>3. Same—When a New Action-is Necessary.—Where a person recovers a judgment in forcible entry and detainer, and obtains possession of the premises without a writ of restitution, it is his duty to maintain his possession, and if he afterward voluntarily lets such premises become vacant and unoccupied, and the defendant in the former suit gets possession thereof peaceably and claims ownership, it will be necessary for him to oust such defendant by another action. He can not do it under the former judgment.</p>

<p>1. Slander—Privileged Communications.—Where a communication is privileged, before the party concerning whom it is made can maintain an action for slander upon it, he must show that it was made maliciously by the defendant.</p> <p>3. Same—Communications by Bankers Privileged.—A communication made by a country banker to a mercantile house in a city, in respect to the pecuniary responsibility of a customer of the house, whose note had been sent to the banker for collection, is privileged, and in order to maintain an action for slander upon it, express malice must be shown; it can not be inferred from the mere falsity of the statement.</p> <p>3. Non-suit—Where the Application Comes Too Late.—Application for leave to take a non-suit not made until after the court had directed a verdict, and until after it had been written out and was being signed by the jurors, comes too late.</p> <p>4. Polling the Jury—Object of, etc.—The object of polling a jury is to ascertain whether any juror had been coerced into agreeing upon a verdict. A verdict for the defendant by direction of the court is never the result of coercion.</p>

<p>Distress for Rent.—Appeal from the Circuit Court of De Witt County; the Hon. William G. Cochran, Judge, presiding.</p>

<p>I. Appellate Court Practice—Reversed Oases.—Where a case has been reversed and remanded for further proceedings in the trial court, and if such proceedings are conformable to the views of this court as expressed in the opinion, the case will be affirmed on the second appeal.</p>

<p>1. Verdicts—On Conflicting Evidence.—Where the evidence is conflicting, but there is sufficient when considered alone to sustain the verdict, the judgment based upon it will be affirmed.</p>

<p>1. Evidence—Where Conflicting.—Where the evidence is conflicting the opportunities of the trial judge for passing upon the credit to be given to the witnesses is superior, and this court does not feel warranted in saying that he reached a wrong conclusion.</p>

<p>Debt, on a constable’s bond. Trial in the Circuit Court of Greene County; the Hon. William G. Cochran, Judge, presiding. Verdict and judgment for defendant. Appeal by plaintiff.</p>

<p>1. Verdicts—On Conflicting Evidence.—A verdict on conflicting evidence, where the jury have been fairly instructed, is conclusive.</p>

<p>Bill, to enforce a vendor's lien. Error to tire Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Assumpsit.—Breach of contract. Appeal from the Circuit Court of McLean County; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Verdicts—Upon Conflicting Evidence.—A verdict upon conflicting evidence when the jury are fairly instructed, is conclusive.</p>

<p>I. Dedication—Meaning of the Word “ Plaza,” on Town Plats.— Where the owner of a square or plat of ground, situated in a city or village, dedicates it to the use of the public and calls it a “plaza," but does not in any manner designate how it shall be enjoyed, the city or village authorities may assume control of it either as an open market place and common, or as a park, for the pleasure and recreation of the public.</p> <p>2. Same—Intention of the Dedicator—How Determined.—Where there is no specific in an instrument dedicating a plat of ground to the public as to the manner in which it shall be enjoyed, the intention of the owner in that regard may be ascertained of the instrument and the surrounding circumstances, and the authorities assuming control of it will not be permitted to put it to a use violative of such intention.</p>

Assumpsit, on a contract in writing. Trial in the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Verdict and judgment for plaintiffs. Appeal by defendant. The special pleas referred to in the opinion are as follows : (2) “ And for a further plea in this behalf the defendant, by his attorneys, I. A: Buckingham, and H. Orea, says actio non, because, he says, that said Murray G-.

<p>Assumpsit, for money paid by mistake. Appeal from the Circuit Court of Coles County; the Hon. Henry Van Seller, Judge, presiding.</p>

Assumpsit, upon a subscription made to aid in defraying the expense of remodeling a church building. Appeal from the County Court of McLean County; the Hon. Roland A. Russell, Judge, presiding.

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

<p>Bill, to settle partnership accounts. Error to the Circuit Court of DeWitt County; the Hon. Lyman Lacey, Judge, presiding.</p>

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

Trespass on the Case, for injuries to horses shipped on a railroad. Trial in the Circuit Court of La Salle County; the Hon. Samuel C. Stough, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

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

<p>Distress for Rent.—Appeal from the County Court of DeKalb County; the Hon. William L. Pond, Judge, presiding.</p>

<p>1. Questions of Fact—Opportunities of the Chancellor.—The chancellor, who hears the cause in the court below, sees the witnesses and hears them testify, has better opportunities to judge of their credibility than this court, and much weight should therefore be given to his findings, and this court ought not to set it aside unless it clearly appears that his conclusions were wrong and contrary to the evidence.</p> <p>2. Mortgage—Must Disclose the Real Nature of the Indebtedness it Secures.—A mortgage must disclose with as much certainty as possible the real character of the indebtedness, and if it is given to secure an existing or future liability, the foundation of such liability should be set forth.</p> <p>8. Same—What the Record Must Disclose.—The record of a mortgage must disclose, with as much certainty as the nature of the case will permit, the real state of the incumbrance.</p> <p>4. Same—The Debt Is the Principal Thing.—The debt is the principal thing, and the mortgage is but an incident.</p> <p>5. Abstract—Additional—When Made by Adverse Party—Costs.— ■Where the abstract filed by appellant does not sufficiently set forth the evidence, the appellee may tile an additional abstract and enter a motion to have the costs thereof taxed against the appellant.</p>

<p>Assumpsit, on a beneficiary certificate. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

Trespass ou the Case, for personal injuries. Trial in the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Verdict and judgment for the plaintiff. Appeal by defendant.

<p>1. Equity Jurisdiction—Where It Attaches.—Jurisdiction in equity attaches, unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity affords under the same circumstances.</p> <p>2. Equitable Assignments—Cm?. Not he Made at Law.—Equitable assignments can not be made at law, but are good only in equity, and create equitable liens in favor of the assignee which courts of equity will protect and enforce.</p>

<p>Attachment.—Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Mandamus.—To compel a railroad company to' construct a bridge. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Judgment—Entry Nunc Pro Tunc.—The usual practice in this State, after overruling a motion for a new trial, is for the judge to write the words, “ Judgment on verdict,” in his docket, and from this entry the clerk is authorized to write up a formal judgment; but if by an oversight of the clerk no judgment is written up at the proper term, it is competent for the court, at the next succeeding term, to order the judgment entered nunc pro tunc.</p> <p>2. Measure of Damages—For Diverting Water from a Mill.—In estimating such losses it is proper for the jury to take into consideration the extent of the plaintiffs business and bis profits for a reasonable period next preceding the grievance complained of in diverting the water, leaving the defendant to show that from other causes the profits would have been less.</p>

<p>1. Fraud—Burden of Proof.—The burden of proving fraud is on the party alleging it; nor is it to be presumed, but must be proved by evidence reasonably sufficient to establish it.</p> <p>2. Practice—Bights of a Party Objecting.—The party objecting to the introduction of evidence is entitled to a ruling from the court which should go into the record.</p>

<p>Forcible Detainer.—Trial in the Circuit Court of Boone County; the Hon. Charles E. Fuller, Judge, presiding. Verdict for plaintiff, by direction of the court. Appeal by defendants.</p>

<p>Bill for Relief.—Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Contempt of Court—Disobedience of Injunction.—Where a party obtained an injunction to prevent interference with bis entering upon demised premises for the purpose of doing fall plowing, and the tenant in possession caused his arrest for a criminal trespass, it was held that the prosecution of the criminal proceeding for trespass was a violation of the injunction.</p> <p>2. Equity Practice—Verification of Bills.—It is not for parties themselves to decide whether a bill is properly verified or not, and disobey an injunction issued upon it upon their own notions of the law. A defect in the verification of the bill can not oust the court of jurisdiction.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of La Salle Couutv; the Hon. Dorrance Dibell, Judge, presiding.</p>

Complaint, for .allowing thistles to mature seed. Trial in the Circuit Court of Kane County; the Hon. George W. Brown, Judge, presiding. Finding and judgment of guilty. Appeal by defendant.

<p>1. Personal Injuries—No Recovery for Mere Fright.—There can be no recovery for mere fright, unaccompanied with physical injury, although resulting finally in bodily ailments.</p>

<p>1. Equity Jurisdiction — Threatened Damages to Property. — Whether a court will entertain jurisdiction in cases of threatened injury to property depends largely on the peculiar facts in each case. Generally speaking, if threatened damages are consequential only, there is ordinarily no jurisdiction in equity; but if the threatened damages be direct a court of equity will, in a proper case, entertain jurisdiction at the instance of the owner of the property.</p> <p>2. Same—Where the Right is to Demand Compensation.—It is where the right of a party is “to demand compensation,” as distinguished from “ a legal right to recover damages,” that a court of equity will entertain jurisdiction. The right to demand compensation exists when the injury is direct, and the right to recover damages exists when it is consequential.</p> <p>3. Same—When it May he Invoked.—Equitable jurisdiction may be invoked in view of the inadequacy of the legal remedy when the injury is destructive or of a continuous character or irreparable in its nature; and the appropriation of private property to public use, under color of law, but in fact without authority, is such an invasion of private rights as may be assumed to be essentially irremediable, if, indeed, relief may not be awarded ex debito justitice.</p> <p>4. Same—Where the Damages are Consequential.—The reason why equity will not entertain jurisdiction where threatened damages are only consequential is that there is a full and complete remedy at law.</p> <p>5. Same—Where the Threatened Damages are Direct.—The reason why equity entertains jurisdiction when the threatened damages are direct is that one party will not be permitted to deprive another of his property without due process of law.</p> <p>6. Same—Where a Private Party is to Suffer a Special Injury.—In some cases where a private party is to suffer a special injury by reason of the construction of a railroad different and distinct from that to be suffered by any other person, or by the general public, a court of equity will entertain jurisdiction at the instance of such party, even though it will also entertain jurisdiction at the instance of the attorney-general oi other representative of the general public.</p> <p>7. Streets—Street Railways in, Not an Unlawful Use.—Permitting street railroads to be placed in public streets is not in itself subjecting such streets to an unlawful use.</p> <p>8. Same—Electrical and Elevated Railways Not a New Servitude.—A street railway operated by electricity, or an elevated street railroad, is “ not a new servitude of a public street.”</p> <p>9. Same—The Right to Occupy by Railroads.—The right to occupy a public street with a railroad track is a question between the railroad company and the municipality controlling the street, or the public generally. An abutting owner can invoke equity jurisdiction only in order to protect his property from direct injury by the use of the street for railroad purposes. When such use is only indirect or consequential it may be recovered for in an action at law; a court of equity will not interfere by injunction.</p> <p>10. Injunctions—At the Suit of Abutting Owners.—The use of a street by street railroads, electric or elevated roads, is not anew or additional servitude and will not be restrained at the suit of an abutting property owner where there is no physical taking.</p>

<p>Assumpsit, for merchandise sold and delivered. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding.</p>

<p>1. Instructions— On Conflicting Evidence.— It is not the province of the court to tell the jury in any case which evidence is the strongest, etc.</p> <p>3. Same—As to Preponderance of the Evidence.—It is error to instruct the jury that after fairly and impartially considering and weighing all the evidence it is their duty to decide that the preponderance of evidence is on the side which, in their judgment, is sustained by the more intelligent, better informed, and more credible and disinterested witnesses, whether these are the greater or smaller number, and is also equivalent to an expression of opinion by the court that the preponderance is on the side which is so sustained.</p> <p>3. Jury—Province of, Where the Evidence is Conflicting.—It is not the province of the court to tell the jury in any case, which evidence is the strongest, etc.</p>

<p>1. " Equity Practice—Referring Causes to the Master. —In referring a cause to the master to take proofs and report the same with conclusions thereon, the court exercises the power given it by Sec. 89, Chap. 28, R. S. The discretion is a judicial one and will not be interfered with unless there is an abuse of it.</p> <p>2. Same—Master's Action—Extending the Time to Close Proofs— Waiver.—The action of a master in extending the time fixed for closing the evidence, may be waived by the conduct of the opposite party, especially where the time fixed by the order of reference is entirely too short.</p> <p>3. Same—Order to Report the Evidence Without Conclusions.—Where the time fixed by the order of reference does not give sufficient time to complete the proofs, and the adverse party waives the extension thereof by the master, it is not error to refuse to order the master to report the evidence to the court without bis conclusions. " And especially is this so where such party makes no complaint until after it is apparent to him that the report of the master will not be satisfactory to him.</p> <p>4. Same—Discretion of the Court in Receiving the Master's Report.— It is a matter within the discretion of the court to receive and consider the master’s report, although he has not conformed to the time fixed by the order in making it.</p> <p>5. Evidence—What Declarations are a. Part of the Res Cestae.—In an action involving the commission of adultery by H., with a certain Mrs. L., a witness stated she saw H. walk out of the room occupied by Mrs. L., and when he did so Mrs. L. said to the witness, “ that is uncle,” referring to H. Held, admissible as a part of the res gestae.</p> <p>6. Alimony—In Suits for Separate Maintenance. —The amount of alimony in separate maintenance suits is arrived at in the same manner as in divorce cases.</p> <p>7. Same—Rules for Fixing, etc.—In fixing the amount of alimony, it is proper to consider “ the circumstances of the case.” among which is the husband’s cruelty, and his circumstances and situation generally, the wife’s separate property, social position, health and circumstances, the general family history and manner of life of the parties prior to and since their separation, aside from the delictum of the husband as disclosed by the evidence.</p> <p>8. Presumptions—In Favor of Decrees.—In a chancery suit the court is presumed to have ignored all incompetent evidence, and if there is sufficient competent evidence to sustain the decree it will not be reversed on account of such incompetent evideúce.</p> <p>9. Minor Children—Alloicance for, Prior to Award of Custody to the Mother.—In this case the court holds that an allowance is proper for the support of minor children who voluntarily remain with their mother, while she lives separate and apart from their father without her fault, and before their custody is awarded to her.</p>

<p>1. Interest—On Orders for Alimony, eta.—Orders to pay money as alimony, separate maintenance, etc., are judgments of the court, and under the statute bear interest from the date of their rendition.</p> <p>2. Equity Practice—Entertaining Petition for Temporary Alimony Pending Appeal, etc.—It is not error to entertain a petition for -temporary alimony pending an appeal of a suit involving a question of permanent alimony.</p>

<p>1. Recovery—Allegations and Proof to Correspond.—To entitle a plaintiff to recover, his allegations and proofs must correspond.</p> <p>2. Variance—What is, as to Needless Allegations.—If the plaintiff, though needlessly, describe a tort, and the means adopted in effecting it, with minuteness and particularity, and the proof substantially vary from such description, it is a fatal variance, and will occasion a non-suit. So, if the situation of land or other property be described, though unnecessarily, in a material averment, as situated in a particular place, the plaintiff will fail if there is a substantial mistake.</p> <p>3. Pleading—Averments as to Accidents at Highway Crossings— Railroads.—In an action against a railroad company for negligently causing the death of a person at a public highway crossing, the averment that the place in question is a public highway crossed by the company’s right of way and tracks, is a material averment, and proof of it is necessary to a recovery.</p> <p>4. Railroads—Duty at Highway Crossings.—The duty which a railroad company owes to the public, in the matter of precautions for the public safety when its trains are approaching and about to cross a public highway, is greater in degree than the duty which it owes under other circumstances.</p> <p>5. Highways—Existence of a Mixed Question of Fact and Law.— Whether there is a public highway, as claimed by the pleadings, in an action against a railroad company for a death by negligence, is a mixed question of fact and law, and it is error to submit such question to the jury, without instructing them as to how a public highway may be constituted.</p> <p>6. Instructions—Must Limit the Jury to the Negligence Charged.— It is error to give an instruction which does not limit the jury to the negligence charged in the declaration.</p> <p>7. Same—Practice of Ashing a Large Number.—The practice of asking a large number of instructions has been criticised by our Supreme Court as “ a mischievous practice and should be discontinued.”</p>

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

<p>1. Leases—For Gambling Purposes.—Knowingly renting premises to be used for gambling purposes is prohibited by Section 127, Chapter 38, R. S., and is contrary to the provisions of Section 135 of the same chapter.</p> <p>2. Defenses—Leasing Premises for Gambling Purposes—Failure to Make this Defense at Law.—Section 135 of the Criminal Code takes all cases to which it applies out of the general rule that when a party has a defense to an action at law known to him, and he fails to make it, courts can not relieve him,</p> <p>3. Gambling—Leasing Premises for. —When premises are rented by the lessee for gambling purposes, and this is known to the lessor, there can be no recovery for rent.</p>

<p>1. Appeals—By Several Defendants Jointly.—Under the terms of our statute, one of several parties to a judgment may appeal, and for that purpose may be permitted to use the names of the parties not desiring to join in the appeal; yet when several defendants pray am appeal jointly, and it is allowed to them jointly, and the appeal is sought to be perfected by a part only, the effort to thus perfect the appeal is unavailing.</p> <p>2. Same—One of Several Defendants May Join Others, etc.— All the plaintiffs or defendants in the original suit, who are alive, must join in the appeal or writ of error, and it is competent for one to join the others without their consent.</p> <p>3. Same—Reasons for the Rule.—The reasons for this rule are, the writ must agree with the record, and if one of a number of plaintiffs, or one of a number of defendants, who have not distinct and several interests, should be permitted to appeal or bring a writ of error, every one might do the same, and such a practice would tend to multiply suits.</p> <p>4. Same—When the Parties Must he Summoned.—If the parties whose names are thus used by a co-plaintiff or co-defendant choose to abide an erroneous judgment, and refuse to appear and assign errors, they must be summoned and severed, and then after the severance the writ maybe prosecuted in the name of such co-plaintiff or co-defendant.</p> <p>5. Same—The Right Statutory.—The right to an appeal is strictly statutory, and a party, to avail himself of such right, must conform to the order of the court which the statute authorizes it to prescribe.</p>

<p>Bill for Foreclosure.—Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.</p>

<p>1. Building Contracts—Measure of Damages for Breach of.—In estimating the damages sustained by reason of the failure of a contractor to complete a building according to the contract, the evidence must be confined to the cost of making and completing the building according to the plans and specifications contained in the contract.</p>

<p>Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook County.</p>

<p>Appeal from the Superior Court of Cook County.</p>

Assumpsit, for physician’s services. Trial in the Circuit Court of Cook County; the Hon. John Gibbons, Judge', presiding. Finding and judgment for plaintiff. Appeal by defendant. A woman, who was, so far as the evidence discloses, a stranger to appellant, ran into the home of appellant,, wounded and bleeding, and fell there unconscious. Appellant at once sent for a physician, and in response appellee, who is a physician, came.

Action on the Case, for a libel. Trial in the Circuit Court of Cook County; the Hon. Elbridg® Hanectí, Judge, presiding. Judgment for defendants on demurrer to declaration. Appeal by plaintiff. This is an action for' libel against appellees. To the original declaration the defendants pleaded the general issue, statute of limitations and denial of joint liability.

Assumpsit.—Trial in the Circuit Court of Cook County on appeal from a justice of the peace; the Hon. Abner Smith, Judge, presiding. Finding and judgment for plaintiff. Appeal by defendant.

<p>Bill in Aid of Execution.—Trial in the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Hearing and decree for defendants. Appeal by complainants.</p>

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

<p>Assumpsit, in a contract for furnishing posters. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.</p>