Volume 81 — Illinois Appellate Court Reports

Trespass on the Case, for ejecting a party from a moving train. Trial in the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Action for Injuries to Personal Property.—Trial in the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant. Heal’d in this court at the November term, 1898.

<p>1. Interest—Bight to Claim Waived by an Acquittance.—If it is the purpose of a person to claim interest on a legacy, he should persist in such claim at the time his receipt and acquittance for such legacy are executed, when by not. doing so the right to such claim is waived.</p> <p>2. Same—Acceptance of the Principal.—The acceptance of the principal, in the face of a questioned or doubtful right to interest, is a sufficient consideration to support a discharge and release of a legacy.</p>

Assumpsit, on a promissory note. Trial in the Circuit Court of Moultrie County, on appeal from a justice of the.peace; the Hon. Francis M. Wright, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant.

<p>1. Bastardy—Practice in Appellate Court.—The fact that the prosecutrix is not an unmarried woman, can not be raised for the first time in the Appellate Court.</p> <p>2. Instructions—Credibility of Witnesses.—It is error in a bastardy case to instruct the jury that they are to judge of the credibility of the prosecutrix as a witness from her whole testimony and demeanor while on the witness stand, including her explanations for her statements made out of court, as confining them to her testimony and demeanor while on the witness stand, including her explanations for the contradictory statements which she had made out of court, in passing upon her credibility as a witness.</p>

<p>1. Receiver—When to be Appointed.—A court of equity is authorized to appoint a receiver to wind up the affairs of a corporation which has become hopelessly insolvent, with its assets in the possession of the sheriff, by virtue of executions and writs of attachment, and ceases to do business.</p> <p>2. Equity Practice—Supplemental Bill.—Previous to the issuance of process on the original bill, a supplemental bill is considered as an addition to and part of the original bill, and, together with it, constitutes one amended bill.</p>

Bill in Chancery, to set aside a satisfaction of a judgment. Trial in the Circuit Court of Pike County; the Hon. Thomas N. Mehan, Judge, presiding. Finding and decree for complainant; appeal by defendant.

Assumpsit, on building contract. Trial in the Circuit Court of Fulton County, on appeal from a justice of the peace; the Hon. John A. Gray, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendants,

Assumpsit, to recover money withdrawn from the funds of the association upon shares of stock. Trial in the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Judgment for defendant on demurrer to plea; appeal by plaintiff.

<p>Bill to Enforce a Mortgage.—Trial in the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Hearing and decree allowing the defense of usury. Appeal by complainants.</p>

<p>1. Quo Warranto—Practice—Requisites of the Petition.—Sec. 1, Chap. 112, S. and C. Ill. (1896) Statutes, entitled “ Quo Warranto,” and Sec. 10, Chap. 110, Ib., entitled “ Practice,” require, in cases where it is sought to test the right of a person to hold an office in any corporation, that a proper petition roust be presented to a court of record of corypetent jurisdiction, or a judge thereof, in vacation, by the attorney-general or a state’s attorney, for leave to file information in nature of a quo warranto; and such petition must contain a statement of facts sufficient to authorize the court or judge to frame an order granting such leave, so that the defendant therein, by answering, pleading or demurring thereto, may tender to the court for determination, such issues of law or fact as are usual in actions at law in courts of record.</p> <p>2. Same—Courts May Act upon Petition Without Compelling Respondents to Shoio Cause.—-The court or judge may act upbn the petition of the relator without first entering a rule upon the respondents to show cause, and if there are probable grounds, allow the petition to be filed.</p> <p>3. Same.—Discretionary Powers of Court Exhausted When.—When the court has allowed the information to be filed, and ordered the summons to be issued, its discretionary powers are exhausted, and the issues presented by the pleadings must then be tried in accordance with the strict rules of -law, in the same manner as in ordinary cases.</p> <p>4. Same—Judge May Act upon Petition During Vacation.—The judge as well as the court may act upon the petition in vacation, but he can make orders only to the extent that the statute authorizes him. He possesses no docket and can enter no general orders, or render no judgment in vacation, by virtue of his general powers of judge, and when he is by statute authorized to act in vacation the statute itself is the measure of his authority.</p> <p>5. City Courts—Power of Judge to Grant Leave to File Informar tion, etc.—The judge of the city court in vacation, without the petition required by the quo warranto act is without authority to make an order to file the information.</p>

<p>Writ of Certiorari.—Trial in the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Finding for defendants; error of petitioners.</p>

<p>Replevin.—Trial in the Circuit Court of Franklin County; the Hon. Edmund D. Youngblood, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.</p>

Assumpsit-, for the value of a leasehold estate, sold, etc. Trial in the Circuit Court of St. Clair County; the Hon. Martin W. Schaeffer, Judge, presiding. Verdict and judgment for plaintiffs. Appeal by defendant.

<p>Bill, for an injunction. Trial in the Circuit Court of Crawford County; the Hon. Prince A. Pearce, Judge, presiding. Judgment for defendant on demurrer to bill; appeal by complainants.</p>

<p>1. Injunction Bonds—Attorneys' Fees as Damages.— It is not necessary for a party to pay his attorneys in an injunction suit before bringing suit on the bond. Attorney fees are damages and when a party becomes legally responsible for them, the right of recovery is complete.</p> <p>2. Same—Relation of Sureties Not Changed by Suit.—The relation óf the surety is in no manner changed by a suit to recover damages in the names of the obligees for the use of their attorneys. When a surety pays the judgment it is immaterial to him whether the money goes to the obligees and from them to their attorneys, or whether it goes directly to the attorneys without passing through the hands of the obligees.</p> <p>3. Equity Practice—Dismissal of Bill Does Not Release Surety.— A complainant may dismiss his bill, where there is no fraud, and its dismissal will not release the surety on the injunction bond, although such dismissal is the result of an agreement with the defendant in the bill.</p>

<p>Mandamus.—Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaeffer, Judge, presiding. Appeal dismissed.</p>

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

Assumpsit, for breach of contract. Trial in the Circuit Court of St. Clair County; the Hon. Martin W. Schaeffer, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant.

Assumpsit, for services, etc. Trial in the Circuit Court of St. Clair County on appeal from a justice of the peace; the Hon. Martin- W. Schaeffer, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. Amendments—Complaint in Bastardy Proceedings.—A complaint in bastardy proceedings may be amended, pending a motion for new trial. Being a civil proceeding, amendments are authorized at any time before judgment.</p> <p>2. Bastardy—Complaint is Not Evidence.—The complaint in bastardy proceedings is not competent for the purpose of showing that the prosecutrix was an unmarried woman.</p>

Assumpsit, for goods sold. Trial in the County Court of Bond County, the Hon. Joseph Story, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiffs.

<p>1. Jury—Exclusive Judges of the Weight of the Evidence.—Where the issues of a case are contested the jury are the exclusive judges of the credibility of the witnesses and of the weight of the evidence.</p>

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

<p>Bill for Injunction.—Trial in the Circuit Court of St. Clair County; the Hon. Martin W. Schaeffer, Judge, presiding. Hearing and bill dismissed; appeal by complainants.</p>

Assumpsit.—Trial in the Circuit Court of Saline County, on appeal from a justice of the peace; the Hon. Alonzo K. Vickers, Judge, presiding. Finding and judgment for plaintiff; appeal by defendants.

<p>1." Widow’s Award—When Lost by Laches.—While there is no statute of limitations directly applicable, the courts of this State have, by analogy, adopted the period of seven years as the time within which proceedings for the enforcement of a claim by a widow for her award must be commenced after the grant of letters of administration, unless the delay is satisfactorily explained.</p>

Action to Recover Damages, for an alleged failure on the part of the sheriff to take and return a sufficient replevin bond. Trial in the Circuit Court of Lawrence County, on appeal from a justice of the peace; the Hon. Enoch E. Newlin, Judge, presiding. Finding and judgment for plaintiff; appeal by defendants.

<p>1. Burden of Proof— Under Verified Pleas.—Under a verified plea denying the execution of the instrument sued upon, the execution of such instrument must be proven as at common law, before it can be read in evidence, but the common law never required the execution of an instrument to be proven by evidence which could not be rebutted, or beyond all reasonable doubt.</p> <p>2. Evidence—Under Pleas Denying the Execution of Written Instruments.—Where the execution of an instrument sued on is denied by a verified plea, evidence should be adduced, which, if uncontradicted, would be sufficient to satisfy all reasonable minds that the instrument was in some way executed by the person by whom it purports to have been made.</p>

<p>1. Bastardy—Prosecution for, a Civil Proceeding.—A prosecution under the bastardy act is a civil proceeding, and the defendant may waive any irregularity in process or preliminary proceedings, by the same acts and to the same extent as in other civil cases.</p> <p>2. Same—Prosecution for, May be Tried at any Term of the County Court.—A prosecution for bastardy may be tried, either at the law or at the probate terms of the County Court.</p> <p>3. Practice—Motion to Exclude the Child, etc.—It is not error to refuse a motion to exclude the child from the presence of the jury.</p>

Replevin,—Trial in the Circuit Court of Pope County, on appeal from a justice of the peace; the Hon. Alonzo K. Vickers, Judge, presiding. Finding for plaintiff; appeal by defendant.

Assumpsit, to recover the proceeds of a sale of stock. Trial in the Circuit Court of St. Clair County; the Hon. Martin W. Schaeffer, Judge, presiding. Judgment for plaintiff by default; appeal by defendant.

Trespass, for negligently running its engine against a car which the plaintiff was loading. Trial in th.e Circuit Court of Effingham County; the Hon. William M. Farmer, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Trespass on the Case, for damages sustained in grading down a street. Trial in the City Court of Alton; the Hon. Alexander W. Hope, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Action for Damages.—Death from negligent act. Trial in the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. Practice—Defendants on Joint Contracts.—The rule of the common law, that where judgment is rendered against two or more on a joint contract, and a new trial is granted as to one, the judgment must be Vacated as to all, is abrogated as to suits on joint and several bills of exchange and promissory notes for the payment of money by the statute Of 1895. Laws 1895, 262.</p> <p>2. Statutes—Construction of the Act of 1895 Relating to Suits on Promissory Notes.—The act (Laws 1895, 262) to amend Section VII of “An act to revise the laws in relation- to promissory notes, bonds, due-bills,1 and other instruments in writing,” approved March 18; 1874, and' to regulate the conduct of suits for enforcing' payment of certain negoti-; able, instruments on which parties are jointly or severally liable, applies to cases where a suit is brought against two or more persons severally liable on a promissory note or bill of exchange,one or more of whom make default, and the plaintiff proceeds to trial against the others and fails. He still may have damages assessed, and upon the finding have judgment against the defendants not putting in a defense.</p>

Action for Damages.—Death from negligent act. Trial in the Circuit Court of Clay County; the Hon. Samuel L. Dwight, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant

<p>Bill for an Accounting.—Trial in the Circuit Court of Pope County; the Hon. Oliver A. Harker, Judge, presiding. Hearing and decree on demurrer to bill; error by complainants.</p>

<p>1. Verdicts— When Conclusive.—A verdict upon a question of fact on the evidence submitted is, in general, conclusive.</p>

<p>Bill to Reform and Foreclose a Mortgage.—Trial in the Circuit Court of Williamson County; the Hon. Oliver A. Haricer, Judge, presiding. Hearing and bill dismissed.</p>

Debt, for statutory penalty. Trial in the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. School Moneys—General and Special Deposits.—Where a school treasurer makes a general deposit of his moneys in a bank without orders to keep it separate and apart from the bank’s money, and in consequence it becomes so mingled that its identity is lost, the treasurer will have no priority for its payment out of the fund in the hands of the assignee of the bank.</p>

Administration of Estates.—Proceedings in the Circuit Court of Johnson County, on appeal from the County Court; the Hon. Alonzo K. Vickers, Judge, presiding. Finding and judgment for claimant; error by defendants.

<p>1. Appeals—From County to Circuit Courts—Bonds.—Section 69 of the Practice Act, which authorizes the clerk to approve an appeal bond, has no reference to appeals from a County Court to the Circuit Court.</p> <p>2. Same—Where Taken Jointly All Must Join.—Where an appeal is allowed jointly to several parties, all must join in the execution of the, bond or the appeal will fail.</p> <p>3. Same— Where the Judge Must Approve the Bond.—Upon an appeal from the County to the Circuit Court, the County Court fixes the amount of the bond and its conditions and approves the security. Such powers can not be delegated to the clerk.</p> <p>4. Same—Compliance with Conditions.—Where the parties to a suit join in praying an appeal, and it is allowed on condition that they execute a bond, such condition must be complied with or the appeal will fail.</p>

Assumpsit, for goods sold, etc. Trial in the County Court of Clay County; the Hon. Ben Hable; Judge, presiding. Finding and judgment for the defendants. Appeal by plaintiffs.

<p>Assumpsit, for services. Trial in the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge, presiding. Verdict and judgment for plaintiff; error by defendant.</p>

Action for Obstructing a Water Course.—Trial in the Circuit Court of St. Clair County, on appeal from a justice of the peace; the Hon. Martin W. Schaeffer, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>Bill, to foreclose a mortgage. Trial in the Circuit Court of Edwards County; the Hon. Prince A. Pearce, Judge, presiding. Hearing and decree for complainants; appeal by defendants.</p>

<p>Debt, on constable bond. Trial in the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.</p>

Trespass on the Case, for personal injuries. Trial in the Circuit Court of St. Clair County; the Hon. Martin W. Schaeffer, Judge, pre- siding. Verdict and judgment for plaintiff; appeal by defendant.

<p>Action for Malicious Prosecution.—Trial in the Circuit Court of Washington County; the Hon. Benjamin R. Burroughs, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.</p>

<p>Trespass on Real Estate.—Trial in the Circuit Court of Johnson County, on appeal from a justice of the peace; the Hon. Joseph P. Rob-ARTS, Judge, presiding.</p>

<p>1. Defenses—Involving Criminal Charges—Measure of Proof.—</p> <p>Where, in a civil action, a defense is based upon criminal acts of the plaintiff, the evidence to sustain such defense must be full, clear and satisfactory. • -</p> <p>2. Res Adjudicata—Former Decisions.—Where a case is adjudicated by this court, reversed and remanded to the Circuit Court, and when tried anew in that court, additional testimony of a material character is introduced without objection, and it comes again before the Appellate Court upon the evidence contained in the former bill of exceptions, admitted by consent of parties together with the additional testimony taken since the first hearing, such first adjudication will not be regarded as res adjudicata upon the questions involved.</p> <p>3. Statutes—Rule in Construing.— In construing statutes courts apply the meaning of words as generally used, unless it is apparent that they are used technically, and take notice of general methods of business, upon the presumption that legislators when making laws, act with reference to such meanings and methods. '</p> <p>4. Deposits—The Term Defined.—A deposit is defined as “ money lodged in a bank for safe keeping.” Strictly speaking, a deposit, signifies only bonds or bills, or bullion deposited with a bank at interest and not capable of being withdrawn except after certain specified notice, and refers .to a deposit account as money deposited with a banker at interest for some certain specified time. It is opposed to a current account which can be added to or drawn upon at any time without notice to the banket.</p> <p>5. Same—Banks Receiving from Officers—Becoming Sureties on Their Bonds.—That banks receiving deposits from, officers should furnish the sureties on such officers’ bonds, is a natural and not an unlawful business transaction. And that they should condition their becoming sureties upon an agreement that their banks should be depositories of the funds which they secure, is equally natural and not unlawful.</p> <p>6. Criminal Law—Officers Depositing Public Funds for Interest. —The test of criminality is not the agreement by the officer to deposit public funds for safe keeping at a place designated by his sureties from which they can be withdrawn in whole or in part at any time without notice; but is the investment or the loaning of public funds for the officer’s own use; in other words, it is the temporary conversion of public funds to officer.</p> <p>7. Sureties—Furnished upon Illegal Agreement.—If sureties are furnished upon an agreement that the public funds in his possession shall be loaned for his use and they are afterward so loaned, the offense is complete whether they draw interest or not.</p> <p>8. Same—Agreement Must be Previous to the Execution of the Bond. —If there is no agreement, express or implied, that public money shall be loaned by the officer and interest paid to him for its use, before the sureties sign the bond, the fact that it is afterward so loaned and interest paid can not relate back to the time of signing the bond so as to taint that contract with illegality. ‘</p> <p>9. Witness—Party Offering Represents Him as Worthy of Belief.— Where a party offers a witness in proof of his cause he thereby in general represents him as worthy of belief. He is presumed to know the character of the witness, and having thus presented him to the court, the law will not permit him to impeach his general reputation for truth, or impair his credibility by general evidence tending to show him unworthy of belief.</p>

<p>1. Insurance—Interpretations of Contracts of.—In the interpretar tion of a contract, the purpose of the transaction between the parties should be rightly apprehended and the contract so construed as to effectuate that purpose, if it be possible to do so, by giving the language, as a whole, any reasonable meaning.</p> <p>3. Same—Intention of the Parties to Govern.— The predominant intention of the parties to a contract of insurance is indemnity, and this intention is to be kept in view and favored in putting a construction upon the policy.</p> <p>3. Same—Construction of Special Clauses.—Special clauses providing for forfeitures should be strictly construed against forfeitures, and the words providing for indemnity should be given the most enlarged meaning consistent with reason.</p> <p>4. Same—“If the Buildings Fall."—The clause, “ If a building or any part thereof fall except as a result of fire, all insurance by this policy on such building or its contents shall cease,” contained in a policy, must be construed with the proposition in mind that the predominant intention of the parties in the making of the contract was indemnity; and this intention must be favored and the contract so construed as to effect that purpose, if that can be done by giving to the language, as a whole, any reasonable meaning.</p> <p>5. Same—What Constitutes a Fallen Building.—A well-constructed frame building has not fallen within the meaning of the condition of the policy in this case when it has merely been blown from the blocks on which it rested, and turned over on its side, remaining intact and retaining its identity as the same building.</p>

' Assumpsit, for goods sold. Trial in the Circuit Court of St. Clair County, on appeal from a justice of the peace; the Hon. William HartZELL, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>Assumpsit, on a draft. Trial in the Circuit Court of Alexander County; the Hon. Joseph P. Robarts, Judge, presiding. Verdict for the defendant by direction of the court; appeal by plaintiff.</p>

<p>Voluntary Assignments.—Proceedings in the County Court of St. Clair County; the Hon. Edward C. Roads, Judge, presiding. Finding and judgment for defendants; error by petitioners.</p>

<p>1. Insurance—Authority of an Agent to Bind the Company.—An agent of an insurance company, whose authority is restricted to soliciting insurance and issuing policies, has no power to waive any condition of the policy.</p> <p>2. Same—No Recovery Without Proofs of Loss.—Under a policy of insurance requiring proofs of loss, no recovery can be had unless such proofs are furnished pursuant to the conditions of the policy.</p> <p>3. Evidence—Admissible Under the General Issue.—A party sued in assumpsit may, under the plea of general issue, introduce any evidence showing that he is not indebted to plaintiff.</p>

Trespass on tile Case, for personal injuries. Trial in the Circuit Court of St. Clair County; the Hon. Martin W. Schaeffer, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>Claim in Probate,—Trial in the Circuit Court of St. Clair County, on appeal from the County Court; the Hon. William Hartnell, Judge, presiding. Finding and judgment for defendant; appeal by claimant.</p>

Trespass on the Case, for personal injuries received in a coal mine. Trial in the Circuit Court of Williamson County; the- Hon. Oliver A. Barker, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>Voluntary Assignments.—Petition for a priority. Trial in the County Court of St. Clair County; the Hon. Edward C. Roads, Judge, presiding. Hearing and judgment for defendant; appeal by petitioners.</p>

<p>Assumpsit, for teacher’s wages. Trial in the Circuit Court of Rich-land County; the Hon. Enoch E. Newlin, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendants.</p>

<p>Suit for Violation of an Ordinance.—Trial in the Circuit Court of Monroe County; the Hon. Martin W. Schaeffer, Judge, presiding. Finding and judgment for defendant; appeal by plaintiff.</p>

<p>1. Depositions—When They May be Properly Used as Evidence.— All depositions, so long as they are on file in the office of the clerk of the court, when properly taken and containing evidence pertinent to the issue, may properly be used as evidence on the trial. '</p> <p>2. Same—When They May be Used by the Adverse Party.—Where a party takes a deposition and places it on file, if he fails or refuses to read it himself and does not withdraw it from the files by proper leave of the court, it may be read by the opposite party.</p> <p>3. Same—When a Witness May be Impeached by the Party Taking His Deposition.—Where a deposition is introduced and read on atrial by the opposite party, the party whose deposition is taken becomes the witness of such opposite party and as such may be impeached by the party originally taking his deposition.</p> <p>4. Instructions—Not to Commit the Construction of a Contract to the Jury. —An instruction which in any degree commits the construction of a contract to a jury, is erroneous.</p> <p>5. Contracts—Performance—When to be Left to the Jury.—The question of performance of a contract shbuld not be left to the jury without a construction of the contract by the court;</p>

Action for Damages.—Death from negligent act. Trial in the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>Prosecution for Violating an Ordinance.—Trial in the Circuit Court of Marion County; the Hon. Truman E. Ames, Judge, presiding. Finding and judgment for plaintiff; error by defendant.</p>

<p>1. Trust Funds—Identification of the Funds and Insolvency of the Trustee.—When a trust fund is in the hands of a trustee and its identification is destroyed by him, he can not defend against a claim by the cestui que trust upon the mingled mass of property when the trustee and such cestui que trust are the only parties interested. But when the trustee is insolvent, and his property has passed' into the hands of his assignee, other parties are interested, and the rule is different.</p> <p>2. Same— When There is No Identification.—Where a trustee becomes insolvent and his property passes into the hands of an assignee so there can be no identification of the trust fund, all creditors of the insolvent must share alike.</p> <p>3. Same—To be Kept Separate—Trustee and Executive Officer.— Where a trust fund is kept separate it is the property of the trustee for the use of the cestui que trust. But it is not for the assignee to decide whether or not it has been kept separate or is capable of identification. He is an executive and not a judicial officer.</p> <p>4. County Courts—Jurisdiction Does Not End Until the Estate is Settled.—The oversight and regulation of a proceeding under the assignment act does not end with the term of court, but continues from term to term until the final disposition of the matter. So long as the estate of the insolvent remains to be distributed, the County Court has power to revoke or alter any order in relation to it.</p> <p>5. Same—Distribution Must be Pro Itaia Unless, etc.—The County Court has no authority to order a distribution otherwise than pro rata, unless upon a showing that prior liens exist, or that there are some controlling equities in favor of a claimant.</p>

Bill for Injunction.—Trial in the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding. Decree dismissing the bill for want of equity; appeal by complainant.

Action in Case, for injuries to stock while in transit. Trial in the Circuit Court of Boone County; the Hon. Charles E. Fuller, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Conspiracy—Must be by at Least Two Persons. —It is not necessary that the evidence should show that all the defendants charged in an indictment are guilty of conspiracy; it is sufficient if the guilt of at least two is shown.</p> <p>2. Criminal Procedure—The Right of Election.—Where the counts of an indictment relate to the same transaction, and are of such a nature that the defendants might be guilty under each and all of them, they can not compel the prosecution to elect under which counts it will proceed.</p> <p>3. Same—When the Right of Election Exists.—The right to compel an election arises where an indictment joins charges actually distinct from each other and which do not form parts of one and the same transaction.</p> <p>4. Same—General Verdict.—Under an indictment containing different counts, some good and some bad, a general verdict of guilty will be referred to the good counts.</p> <p>5. Accomplices—Can Not Prosecute for the People.—No. accomplice in a criminal case has no right to prosecute the State's case. He has a right to put in evidence to exonerate himself, or lessen the degree of his guilt, and to confess his guilt, but he has no right to introduce new and original evidence of the guilt of his co-defendants of a character not competent, except as offered by the State.</p> <p>6. Conviction—May be Shown to Affect the Credibility of a Witness. —A conviction of a witness, of an infamous crime may be shown for the purpose of discrediting his evidence.</p> <p>7. Witness—Should Assert His Oum Rights.—A witness may decline to answer questions touching his former conviction of an infamous offense. Under the special circumstances of the case the court should not have asserted his rights for him.</p> <p>8. Trial Judges—Improper Conduct at Trials.—The law concedes to every trial" judge a wide latitude in protecting those who are defenseless from improper proof, or from assaults by opposing counsel, and also in putting questions which will bring out the truth upon points not rendered sufficiently clear by the examination of counsel; but great care should be taken by the judge to exercise this power only when necessary, and then in such a way as not to indicate any bias for or against either party, and so as not to create any apprehension in the mind of either party or of counsel that the court is taking sides before the jury.</p> <p>9. State—Its Duty Toward Criminal Defendants.—It is the duty of the State to treat the defendants in a criminal case fairly.</p> <p>10. Evidence—Acis of an Indicted Defendant.—On the trial of several persons for conspiracy to defraud a city in constructing a drain the evidence of the acts of a defendant who inspected the work as the representative of the city, though indicted, is competent. The court can not assume before verdict that he was in fact either a conspirator or incompetent.</p> <p>11. Same—0/ the Quality of Materials.—In a trial on a charge of conspiracy to defraud a city in constructing a public walk, evidence showing that the quality of the materials used in the walk was equal to that called for by the contract is competent on the question of the intent to defraud.</p> <p>12. Impeachment— Where a Witness Has Made Different Statements Before the Grand Jury.—Where an effort is made to impeach a witness by proving that he has made statements before the grand jury different from his testimony at the trial, the procedure is the same as that to be followed when it is sought to contradict him by his statements made anywhere else.</p> <p>13. Discretion—Abuse of, in Re-opening a Case.—Where a witness testifies to a criminating transaction and fixes the date, and the defendant establishes an alibi, it is not proper to allow such witness, after the arguments are begun, to fix a different date to such transaction without some showing to justify the introduction of such testimony.</p>

Petition for Mandamus.—Trial in the Circuit Court of Winnebago County; the Hon. James C. Garver, Judge, presiding. Hearing and decree against relator for costs; appeal by relator.

Assumpsit, upon an endowment certificate. Trial in the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. Railroads—Engines Emitting Fire.—Where a fire is not set on the right of way and the proof shows that at the time of passing the place where it occurred the engine in question was in good order, and was equipped with one of the best and most approved appliances in use for arresting sparks and preventing the escape of fire, in good repair, the engine in charge of a competént and skillful engineer and carefully managed, our courts have uniformly held there can be no recovery of damages.</p>

<p>1. Married Women—Right of the Wife to Recover for Board Furnished. etc.—A wife can not recover for board furnished to one living in the family of which her husband was the head, in the absence of any evidence of a contract therefor by the wife, with the consent of her husband.</p> <p>2. Same—Wife's Earnings—Boarders.—The general rule is that the right to receive and recover moneys due from boarders, is in the husband, and that the wife has no legal demand therefor, though her personal services and labor as housekeeper contributed to the creation of the indebtedness due for such board and lodging.</p>

<p>1. Equity Practice—Exceptions to a Master's Report Must Be Filed in the Court Below.—Where a party fails to file exceptions to the master’s report in the court below, it will be understood that he acquiesced in the conclusions and findings of the master; and on appeal to this court he will not be heard to make objections to the report which he did not make and insist upon in the trial court'.</p> <p>2. Costs—Shorthand Reporter.—When the judge trying a case, of his own motion, orders a transcript made of the shorthand notes taken by the reporter, he may direct the payment of the charges therefor and the taxation of the same as costs.</p> <p>3. Maxims—Application of the Maxim, “ De Minimis Non Curat Lex.”—Where a court erroneously allowed interest which amounted to only sixty-one cents, the maxim “De minimis non curat lex” must be held to govern.</p>

Assumpsit, on the common counts. Trial in the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiff.

<p>Bill for an Injunction.—Trial in the Circuit Court of Kankakee County; the Hon. John Small, Judge, presiding. Decree dismissing the bill rendered; appeal by,complainant.</p>

<p>1. Chattel Mortgages—Rights of Mortgagee Strictly Construed.—A mortgagee of chattels, taking a new mortgage on the same property for the same debt, surrendering the old one and extending the time of payment, estops himself from proceeding on the first, and loses his lien by reason of it; his rights are to be strictly construed.</p>

<p>Assumpsit, on a promissory note. Trial in the Circuit Court of Bureau County; the Hon. Harvey M. Trimble, Judge, presiding. Verdict and judgment for plaintiff ; appeal by defendant.</p>

<p>Forcible Entry and Detainer. —Trial in the Circuit Court of DeKalb County; the Hon. M. A. Southworth, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendants.</p>

<p>I. Conservators—Motion to Vacate Partition Proceedings.—A conservator who moves to set aside proceedings in a partition suit on the ground of his ward’s insanity, must show by a preponderance of the evidence that he was insane while the suit was in progress.</p>

Assumpsit, for family expenses. Trial in the Circuit Court of La Salle County, on appeal from a justice of the peace; the Hon. Harvey M. Trimble, Judge, presiding. Finding and judgment for plaintiff; appeal by one of the defendants. Reeves & Boys, attorneys for appellant,

Action in Case, for damages occasioned by the erection and operation of a gas plant. Trial in the Circuit Court of Boone County; the Hon. Charles E. Fuller, Judge, presiding. Verdict and judgment for plaintiff; error by defendant.

<p>Proceedings in Garnishment.—Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding.</p>

Proceedings by Petition, under Sections 60 and 61 of the Drainage Act of 1879. Trial in the County Court of Grundy County; the Hon. A. R: Jordan, Judge, presiding. Finding and judgment for defendant; appeal by petitioner.

Debt, on a bond continuing an injunction in force, pending an appeal. Trial in the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Verdict and judgment for plaintiff; error by defendant.

<p>Action for Personal Injuries.—Trial in the Circuit Court of Bureau County; the Hon. Harvey M. Trimble, Judge, presiding. Verdict and judgment for pain tiff; appeal by defendant.</p>

Creditor’s Bill.—Trial in the Circuit Court of Henry County; the Hon. Frank D. Ramsey, Judge, presiding. Decree for complainant finding the transaction not fraudulent; appeal by defendants.

Action for the Violation of an Ordinance.—Trial in the Circuit Court of Carroll County, on appeal from a justice of the peace; the Hon. James Shaw, Judge, presiding. Finding and judgment for defendant; appeal by plaintiff.

Action in Case, for personal injuries. Trial in the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. Homestead—Exempt from Sale under a Decree for Alimony.— Where the lien given by the decree in divorce proceedings is the ordinary lien given for a money decree and not a specific lien, and the execution sale is like any ordinary execution sale, it is the duty of the sheriff to have the homestead set off pursuant to the statute.</p>

<p>1. License—As a Defence, Must be Provedby a Preponderance of the Evidence.—The plea of license in an action for damages by reason of a nuisance presents an affirmative defense and must be proved by a preponderance of the evidence.</p> <p>2. Damages—In Actions for Nuisances.—In an action for damages sustained by reason of a nuisance, where the plaintiff depends largely upon the claim that her health had been seriously affected, it is very difficult, if not impossible, for witnesses to testify to the exact amount of damages sustained, and very much must be left to the discretion of the jury, based upon the evidence in the case.</p>

Action on the Case, to recover damages for injuries sustained by an explosion of gas. Trial in the Circuit Court of Kane County; the Hon. George W. Brown, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

<p>1. Banks and Banking—Certificates of Deposit.—A certificate of deposit, payable to the order of the depositor on return of the certificate properly indorsed, is a negotiable instrument, having like qualities as a promissory note payable on demand.</p> <p>2. Same—Certificate of Deposit— When Due.—A certificate of deposit payable to the order of the depositor on return of the certificate properly indorsed is not due until demand is made, or until a sufficient time has elapsed to raise a presumption that the paper is past due, in view of the manner in which the business of the bank is ordinarily transacted.</p> <p>8. Garnishment— Certificate of Deposit.— Under the provisions of Chap. 63, R. S., a certificate of deposit payable to the order of the depositor on return of the certificate properly indorsed is protected from the effect of garnishment, even in the hands of the payee at the time of service or of the rendition of the judgment.</p>

<p>Action for Slander.—Trial in the Circuit Court of McHenry County; the Hon. John C. Garter, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

Debt, for the violation of a city ordinance. Trial in the Circuit Court of Warren County; the Hon. George W. Thompson, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant..

<p>Petition for Discharge from Imprisonment.—Trial in the Comity Court of Mercer County; the Hon. Jambs H. Connell, Judge, presiding. Order for petitioner’s discharge entered. Appeal by the people.</p>

<p>1. Verdicts—On Conflicting Evidence.—A verdict upon conflicting evidence is, as a general rule, conclusive as to the issues of fact in controversy.</p>

Assumpsit, for attorney services. Trial in the County Court of Grundy County; the Hon. A. R. Jordan, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>Assumpsit.—Common counts. Trial in the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.</p>

Trespass on the Case, for personal injuries. Trial in the Circuit Court of Will County; the Hon. Robert W. Hilsher, Judge, presiding. Verdict and judgment, for plaintiff; appeal by defendant.

<p>1. Trespass—For Taking Coal—The Proper Remedy.—For mining and taking away coal from the lands of another, without right, the law furnishes an adequate remedy in the action of trespass.</p> <p>2. Injunction—To Restrain the Wrongful Taking of Coal. —A bill will not lie to restrain the mining and removing of coal from the complainant’s premises when there is no averment of irreparable injury and insolvency of the defendant.</p>

<p>1. Alimony—Pendente Lite.—Where a defendant in a suit for divorce files a cross-bill charging his wife with serious offenses against the marital relation, to meet and defend herself against such charges she is entitled to alimony and expense money, regardless of the question as to the sufficiency of her own bill.</p>

<p>Motion to Open a Judgment Entered by Confession.—Heard in the Circuit Court of Livingston County; the Hon. George W, Patton, Judge, presiding. Motion dismissed; appeal.</p>

Assumpsit, for money had and received. Trial in the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Finding and judgment for defendant; appeal by plaintiff.

Debt, on a replevin bond. Trial in the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Verdict and judgment for defendant by direction of the court; appeal by plaintiff.

Replevin, for grain stored in an elevator. Trial in the Circuit Court of La Salle County; the Hon. Harvey M. Trimble, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Assumpsit, on a benefit of a fraternal association. Trial in the Circuit Court of Kane County; the Hon. George W. Brown, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant.

Action for Damages Caused by Fire.—Trial in the Circuit Court of Kankakee County, on appeal from a justice of the peace; the Hon. John Small, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Distress for Bent.—Trial in the Circuit Court of Putnam County; the Hon. Thomas M. Shaw, Judge, presiding. Verdict and judgment for defendant by direction of the court. Appeal by plaintiff.

<p>1. Verdict—Rendered Ore Tenus, Valid.—A verdict rendered ore tenus, without being signed at all, is a perfect and valid verdict if received and acted on by the court in open court.</p> <p>2. Same—When an Indictment of Different Counts Charges But One Offense.—Where an indictment charges but one offense, although stated in different counts, a general verdict and sentence is good and sufficient.</p> <p>8. Presumptions— In Favor of a General Verdict.—In the absence of a bill of exceptions showing evidence to have been introduced tending to prove different offenses, the court will presume but one offense was established and-hold the general verdict and judgment good.</p>

<p>Assumpsit, for attorney’s services. Trial in the County Court of Peoria County; the Hon. Robert H. Lovett, Judge, presiding.</p>

<p>Assumpsit, on a promissory note. Trial in the Circuit Court of Winnebago County; the Hon. Charles H. Donnelly, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiff.</p>

Action in Case, to recover damages to property by reason of the erection and maintenance of a stand-pipe in a public street. Trial in the Circuit Court of La Salle County; the Hon. George W. Brown, Judge, presiding. Verdict and judgment for defendant. Appeal by plaintiff.

Action in Case, for personal injuries. Trial in the Circuit Court of Brown County; the Hon. Charles E. Fuller, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Action on the Case, to recover for damages, for floo'ding premises by raising a dam. Tidal in the Circuit Court of Whiteside County; the Hon. Frank D. Ramsey, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. Damages—When $1,000 Not Excessive. —A widow, sixty-three years old, was driving in her top-buggv, along a public highway, when a man, very much intoxicated, drove up behind her with a span of horses and wagon, his horses on the run. His horses turned out of their own accord, but not sufficiently to avoid plaintiff’s buggy, which they struck and overturned, inflicting upon her serious injuries and damaging the buggy. She received a compound fracture of the lower part of the left arm, which had to be set and the arm put into splints. Her left wrist was dislocated. She was treated for three months for these injuries by a surgeon, at a cost of $35. She suffered great pain, and still suffers pain in her wrist. Her hip and knee were injured, so she could not lie upon that side for three or four months. The top was broken off her buggy, the box split, and the spokes broken out of three of the wheels. The proof tended to show that it was depreciated in value $50. In an action under the dram-shop act, against the saloon-keepers w'ho sold the man liquor, she recovered a verdict for $1,000. Held, not excessive.</p> <p>2. Instructions — Under the Dram-Shop Act — Immediate and Approximate Causes of Intoxication.—An instruction that, to entitle plaintiff to recover, not only must it appear that the defendants sold the intoxicating liquor which contributed to the intoxication, but also that said intoxication was the immediate or proximate cause or occasion of the injury, without defining what is meant by remote and proximate cause, is calculated to mislead the jury, and properly refused.</p> <p>3. Same—Inability under the Dram-Shop Act.—An instruction advising the jury that if they believe any one of the defendants did not furnish liquor which caused the intoxication, they should find all the defendants not guilty, does not state the law correctly.</p> <p>4. Becords—Affidavits to be Made a Part of, by Bill of Exceptions.— The fact that the clerk copies affidavits used on a motion for a new trial into the record prepared by him, does not make them a part of the record. Affidavits can only become a part of the record of a common law action by being embodied in a bill of exceptions signed and sealed by the judge.</p>

Action in Case. —Death from negligent act. Trial in the Circuit Court of Kankakee County; the Hon. John Small, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Assumpsit, on a subscription. Trial in the Circuit Court of Du Page County, on appeal 'from a justice of the peace; the Hon. Charles A. Bishop, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiff.

Action on the Case, to recover damages for the killing of cattle by an engine and train of cars. Trial in the County Court of McHenry County; the Hon. O. H. Gilmore, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Bill to Foreclose a Mortgage.—Cross-bill to remove an unrecorded mortgage as a cloud upon title. Trial in the Circuit Court of Kane County; the Hon. Charles A. Bishop, Judge, presiding. Decree for defendant on cross-bill; appeal by complainant.

<p>Bill for an Injunction and Accounting.—Trial in the Circuit Court of La Salle County; the Hon. Harvey M. Trimble, Judge, presiding. Judgment for defendant on demurrer to bill; appeal by complainants.</p>

<p>Assumpsit, on a promissory note. Trial in the County Court of La Salle County; the Hon. H. W. Johnson, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

Petition, under Sections 81 and 82 of the Administration Act. Trial in the Circuit Court of Lee County, on appeal from the Probate Court; the Hon. James S. Baume, Judge, presiding. Finding for petitioner; appeal by defendant.

Trespass, quare clausum fregit.—Trial in the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendants.

<p>1. Specific Performance—When it Will Not be Decreed.—Courts of equity will not decree the specific performance of contracts calling for personal services requiring the exercise of mechanical skill, intellectual ability and the exercise of judgment.</p> <p>3. Same—Of a Contract to Form a Partnership.—Specific performance of a contract to form a partnership will not, as a general rule, be enforced, but the partners will be left to their remedy at law for damages.</p> <p>3. Partnership—Remedy for a Breach of an Agreement to Form.— A mere agreement to form a partnership does not of itself create apart- ■ nership, and, for the breach of such an agreement, the remedy is in a court of law in an action for a breach of the contract.</p>

<p>Action in Case, for personal injuries. Trial in the Circuit Court of Sangamon County; the Hon. Robert B. Shirley, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.</p>

<p>Mandamus.—Trial in the Circuit Court of Henry County; the Hon. Frank D. Ramsey, Judge, presiding. Judgment for relator on demurrer. Appeal by respondents.</p>

Prosecution,' for violating an ordinance. Trial in the Circuit Court' of Kane County, on appeal from a police magistrate; the Hon. Charles A. Bishop, Judge, presiding. Finding and decree for plaintiff; appeal by defendant.

Assumpsit, for the conversion of a pledge. Trial in the Circuit Court of DeKalb County; the Hon. George W. Brown, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant.

<p>1. Contracts—Interpretation of Insurance Policies.—Where two interpretations of a policy, equally fair, may be given, that which gives the insurer the greater indemnity and most fairly covers the loss, will prevail. The contract is to be construed liberally in favor of protecting the insured.</p> <p>2. Insurance—Reasons for the Rule of Construction.—The rule of construction of insurance contracts rests upon two reasons: first, the courts will not readily apply to any contract a construction which tends to nairovv the range and limit the force of the principal obligation; and, second, such contracts are signed by the insurer only, and are usually expressed in language prepared by it.</p> <p>3. Same—General and Special Policies on the Same Property.— Where there are general policies upon an entire building, and special policies upon parts of it, there can be no theory of contribution or apportionment among the several policies which will relieve the general policies from liability to their full amount until the insured has received complete indemnity for his loss.</p>