Volume 83 — Illinois Appellate Court Reports

<p>Motion to Strike Bill of Exceptions from the Piles.—Motion allowed and judgment affirmed.</p>

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

<p>1. Bankruptcy— Power of Congress to Establish a Uniform System. —The fourth clause of Section 8 of Article 1 of the Constitution of the United States grants to Congress the power “ to establish uniform laws on the subject of bankruptcies throughout the United States.”</p> <p>2. Same—Limits of the Jurisdiction of Congress.—The jurisdiction of Congress extends to all cases where the law causes to be distributed the property of the debtor among his creditors; this is its least limit. Its greatest, is the discharge of the debtor from his contracts. And all ntermediate legislation affecting substance and form, but tending to further the great end of the subject—distribution and discharge—are in the discretion of Congress.</p> <p>3. Same—Doctrine of the Federal Courts.—It is the doctrine of the Federal courts that all judicial proceedings, whether voluntary or involuntary, for the distribution of the effects of an insolvent debtor among his creditors, are subject to the paramount control of Congress when it chooses to legislate upon the subject; and that when it acts the power of the State and the jurisdiction of its courts are in abeyance.</p> <p>4. Same—Suspension of State Insolvency Laws.—As soon as a national bankruptcy act goes into effect all State assignment and insolvency laws become suspended and remain entirely inoperative while the national act is in force, so far as they cover the same subjects as the bankruptcy act, and the jurisdiction of State courts under such State laws is in abeyance during that period, regardless of the question whether proceedings in bankruptcy have been instituted or not.</p> <p>o. Insolvency Laws—When Not Affected by Federal Bankruptcy Latos.—Proceedings commenced under State insolvency laws before the passage of the bankruptcy law of 1898 are not affected by it.</p> <p>6. Same—State and Federal Systems.—The two systems, State and Federal, act upon the same subject-matter, and persons, both debtors and creditors, have the same rights, and generally have the same object, the equal distribution of the debtor’s assets among all his creditors; and both can not go on without collision.</p> <p>7. Same—State Assignment Act and the Federal Bankruptcy Act can Not Stand Together.—The State statute and the bankruptcy act can not stand together. The bankruptcy act is the supreme law of the land, enacted in pursuance of an express grant of constitutional authority; and, in so far as any State law is in conflict with it, such law is suspended and remains inoperative until the Federal enactment is repealed. And until then all matters embraced in it must be governed by its provisions.</p> <p>8. Same—Power of State Courts Suspended.—The operation of the State Law is suspended, and the State courts are without jurisdiction or authority to administer the estates of bankrupts or insolvents.</p> <p>9. Voluntary Assignment—An Act of Bankruptcy.—By making an' assignment for the benefit of creditors under the State law a person commits an act of bankruptcy under the act of 1898.</p> <p>10. Bankrupt Act— When it Went Into Force.— The national bankrupt act, by its terms, went into full force and effect upon its passage July 1, 1898, notwithstanding the provision that no voluntary petition should be filed within one month of the passage of the act, and that no petition for involuntary bankruptcy should be filed within four months of the passage of the act. It was operative from the date of its passage, and was effective from that date to supersede the insolvency laws of the ' several States.</p> <p>11. State Courts —Power of, in Voluntary Assignments.—Under an assignment made on the 16th day of July, 1898, the County Court is without jurisdiction to enter an order requiring a constable to show cause why an order should not be entered requiring him to surrender to the assignee property of the assignor distrained for rent.</p>

<p>1. Expert Testimony— Competency.—For the purpose of determining whether the circumstances connected with the presence of canning machinery and its attachments materially increases the danger of fire, requires a degree of knowledge not possessed by an ordinary jury, and a party has a right to present the opinions of experts upon the question.</p> <p>2. Same— Competency in Insurance Cases.—la an action against a fire insurance company to recover the insurance upon buildings destroyed by fire, for the purpose of determining whether, at the time of the fire, the hazard was greater than when the insurance was written, by reason of changes made in the buildings by the insured without notice to the insurer, it is competent for the company to show all the facts connected with changes in the use of the buildings, and if it requires special knowledge to understand how such changes affected the risk, it is proper to have the same explained by those who have special knowledge.</p> <p>3. Sams—Hypothetical Questions.—All material undisputed facts bearing upon the matter, concerning which the opinion of the witness is sought, should be included in the hypothetical question.</p> <p>4. Same—Objections to, Must Point Out Facts Omitted.—Counsel objecting to hypothetical questions should point out what admitted fact he claims to be improperly omitted, so that if the court holds the objection good the defendant may amend the question.</p> <p>5. Same—Sufficiency of the Evidence for a Basis.—Where there is any evidence tending to establish a fact, a party has a right to base a hypothetical question upon such evidence, regardless of the preponderance of evidence upon the subject. He is not obliged to accept the theories of the opposite party as to what the evidence tends to prove.</p> <p>6. Depositions— Objections to Questions—When to be Made.—Objections to evidence contained in depositions which can be obviated by amending the question, asking another question or retaking the deposition, can not be presented for the first time at the trial.</p> <p>7. Evidence—General Customs Among Insurance Companies.—It is competent to prove a general custom among insurance companies to refuse a risk on a canning factory, but not a private practice of a single company, of which the insured had no notice.</p> <p>8. Estoppel—By Stipulation of Parties Litigant.—Where the parties to an action at law make an agreed statement, none of the matters so agreed to can be disputed on the trial by either party.</p> <p>9. Defenses—Increase of Hazard—Insurance—Burden of Proof.— Where the defense in a suit upon a policy of insurance is wholly devoted to showing that the plaintiff’s tenant, after the insurance and without notice to the company, did certain things forbidden by the policy, the result of which was to make the hazard greater at the time of the fire than when the insurance was written, the burden is upon defendant to establish such defense by a preponderance of the evidence.</p> <p>10. Instructions—Preponderance of Evidence Where the Facts are Agreed Upon.—Where the parties stipulate everything necessary to make uprima facie case for the plaintiff, an instruction that the plaintiff must prove his case by a preponderance of the evidence, and unless the jury believe that the greater weight of evidence is in his favor, their verdict should be for the defendant, is erroneous and calculated to mislead.</p>

<p>Bill for Relief.—Trial in the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Bill dismissed; appeal by complainant.</p>

Aeiion in Case, for personal injuries. Appeal from the City Court of the City of Litchfield. Montgomery Comity; the Hon. Amos Oller, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>Application for Discharge from Imprisonment.—Appeal from the County Court of Sangamon County; the Hon. Charles P. Kane, Judge, presiding.</p>

<p>1. Appeals—In Criminal Cases.—An appeal does not lie in a criminal case.</p>

<p>1. Ordinary Care—Use of, May Be Presumed.—In actions to recover damages claimed to result from the death of a person in a railroad collision, a jury is authorized in finding that the deceased used ordinary care to avoid the collision, because of the presumption arising from the natural instinct of self-preservation.</p>

<p>1. Insurance—Who Entitled to the Proceeds.—No person except the assured, or his assignee, can rightfully claim the proceeds of a policy of insurance by reason of having a lien against the insured property unless by agreement, or unless the insurance was effected in whole or in part for his benefit.</p> <p>2. Same—Policies Are Personal Contracts.—Policies of insurance against loss by fire are personal contracts with the assured and do not attach to the property insured, or in any manner go with the same as an incident to a conveyance or transfer of the title, or the creation of a lien thereon, without express agreement or manifest intention on the part of the assured that the insurance was effected for the benefit of such person interested in the property.</p> <p>3. Same—Property May be Insured for the Protection of Third Persons.—By an agreement to insure for the protection and indemnity of another person, having an interest in the subject of the insurance, the assured may give such person an equitable lien upon the money due upon the policy to the extent of such interest.</p> <p>4. Same—Eights of Lien Holders.—A mere lien upon the property insured does not give the holder of the lien a claim upon the policy which the owner of the goods has obtained for the protection of his own interest therein; although the insured is personally liable to pay the debt and which is a lien upon the property insured.</p> <p>5. Same—Eight of Mortgagees.—A mortgagee has no right to claim the benefit of a policy underwritten for the benefit of the mortgagor on the mortgaged property in case of a loss by fire. The contract is strictly a personal contract for the benefit of the mortgagor, to which the mortgagee has no more title than any other creditor.</p> <p>6. Same—Eight of Intervention.—A mortgagor can not recover insurance money from a mortgagee except under such circumstances; nor a mortgagee from a mortgagor; nor a debtor from a creditor. In order to give the right to intervene between the insurer and insured, the party intervening must have some relation to, or concern with, the contract of insurance.</p> <p>7. Same—Eights of Execution Creditor's.—A creditor who acquires title to an estate under a levy of execution has no relation to, or concern with, a contract of insurance between the former owner of the estate and the insurers, upon which to found a claim upon the realty for the amount of the loss or any part of it.</p> <p>8. Same—A Personal Contract.—The contract of insurance is a personal contract and does not run with the title to the property, or with the subject-matter of insurance, unless by special stipulations wholly foreign to itself, either interpolated in the contract or in addition thereto.</p> <p>9. Same—Satisfaction—To Whom to he Made.—Satisfaction, is to be made to the person insured for the loss he may have sustained.</p>

Malicious Prosecution.—Trial in the Circuit Court of McLean County: the Hon. Colostin D. Myees, Judge, presiding. Verdict and judgment for defendant, by direction of the court; appeal by plaintiff.

<p>1. Estoppel—By Tenant to Deny that He Owes Rent.—A tenant who is permitted to cultivate the leased premises for the term is estopped to say that his landlord had no such title to the premises as gave him authority to rent them when sued by the administrator of the landlord’s estate for the rent.</p> <p>2. Rents—Recovery in an Action of Assumpsit.—Where a tenant, occupying premises under lease providing for the delivery of one-third of the grain raised as rent, converts to his own use all the crops grown thereon during the term, such rents or their value may be recovered in an action of assumpsit under the common counts.</p>

Action in 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.

<p>Quo Warranto.—Trial in the Circuit Court of Christain County; the Hon. William M. Farmer, Judge, presiding. Finding and judgment of ouster; appeal by respondent.</p>

<p>Mandamus.—Appeal from the Circuit Court of Tazewell County; the Hon. Leslie D. Purterbaugh, Judge, presiding.</p>

Assumpsit, for boarding and lodging. Trial in the Circuit Court of Moultrie County, on appeal from a justice of the peace; the Hon. William G. Cochran, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. Appellate Court Practice— Propositions of Law Must be Shown in the Abstract.—Propositions of law which do not appear in the abstract will not be discussed in this court,</p> <p>2. Promissory Notes—Recovery upon, by an Indorsee.—To entitle an indorsee to recover from the indorser upon a promissory note, he must show that, by reason of the insolvency of the maker, no suit against him would have been availing, and that the written assignment made by the indorser at the time he delivered the notes to the plaintiff carried with it the liability of a general indorser. ■</p> <p>8. Same—Qualified Indorsements.—An indorsement upon a promissory note in these words, “ For value received, I hereby convey my right, title and interest in within notes to E,” is a qualified indorsement and expresses no further intention than to pass the title and interest which the indorser had in the notes at the time.</p> <p>4. Same—General and Qualified Indorsements.—The interest passing by the usual indorsement is much greater than the mere interest of the payee, and where the indorsement only attempts to pass the right, title and interest of the payee of the note, no greater right, title or interest than he then had can pass.</p>

<p>1. Contracts—Where Different Instruments are Executed as Evidence of one Transaction.—Where different instruments are executed as evidence of one transaction or agreement they are to be read together and construed as one instrument.</p> <p>3. Promissory Note—Definition.—A promissory note is “ a written promise by one person to pay another person therein named, or order, a fixed sum of money, at all events and at a time specified therein, or at a time which must certainly arrive.”</p> <p>3. Same—When Not Payable on a Contingency.—A note is not payable on a contingency because the maker has the option of paying it on or before a certain date, and such a provision does not destroy its negotiability:</p> <p>4. Same—Requisites as to Validity.—To constitute a valid promissory note, it must be for the payment of money which will certainly become due some time, although it is uncertain when that time will come. And where the payment depends upon a contingency, it makes no difference that such contingency does in fact happen afterward, for its character as a promissory note does not depend upon future events, but solely upon its character when created.</p> <p>3. Same—Duty of Maker in Making Payments.—The maker of a promissory note must know at his peril that the person to whom he makes payment has authority to receive it, and he who is negligent in this regard must bear the loss of his dereliction rather than an innocent person. - .</p> <p>6. Same—Negotiable, Although Secured by Mortgage.—A promissory note, although secured by mortgage, is still commercial paper assignable at law.</p>

<p>Appeal, from the Circuit Court of DeWitt County; the Hon.William G. Cochran, Judge, presiding.</p>

Prosecution, under the pharmacy law. Trial in the Circuit Court of Sangamon County: the Hon. Robert B. Shirley, Judge, presiding. Verdict and judgment for defendant; appeal by the people.

Assumpsit, on an accident insurance policy. Trial in the Circuit Court of Vermilion County; on appeal from a justice of the peace; the Hon. Ferdinand Bookwalter, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the November term, 1898.

<p>Certiorari.—Appeal from an order quashing the writ entered by the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding.</p>

Judgment by Confession.—Trial of issues of fact, submitted on motion of defendant in the Circuit Court of Logan County; the Hon. George W. Patton, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Assumpsit, for broker’s commission. Trial in the Circuit Court of Moultrie County; the Hon. William G-. Cochran, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. Appellate Court Practice—Defective Records and Abstracts.— Where the transcript of the record arid the abstract contain no assignment of errors, as required by the rules, the appellant is not in a position to insist upon reversing the judgment appealed from for the reasons that the court improperly refused to allow his motion to strike the amended declaration from the files; that the verdict is contrary to the evidence, and that the damages are excessive.</p>

Assumpsit, upon a promissory note. Trial in the Circuit Court of Macoupin County; the Hon. James A. Creighton, Judge, presiding. Finding and decree for plaintiff; appeal by defendant.

<p>1. Wills—Disposition of Lapsed Legacies.—All lapsed gifts of personal property fall into a general residuary bequest, instead of being treated as intestate estate, unless a contrary intention on the part of the testator clearly appears.</p> <p>2. Same—Effect of a Residuary Clause.—As to personal estate, though it is otherwise as to real property, a residuary clause takes not only everything not disposed of, but everything that turns out not to be disposed of. The law raises a presumption in favor of the residuary legatee.</p> <p>3. Presumptions—That a Testator Disposes of His Whole Estate.— Where a man dies leaving a will which does not manifest a clear intention otherwise, the presumption is, that he intends to dispose of his whole estate, and this presumption exercises a controlling influence in settling a doubtful construction.</p>

<p>1. Pleading—In Actions for Deceit.—A declaration in an action for deceit, which avers the making, knowingly, of the false statements in relation to a matter material to the transaction, the reliance of the plaintiff upon such statement as true, and that he was induced thereby to act to his detriment and loss, if sustained by proof, will authorize a recovery.</p> <p>2. Evidence—Knowledge of Falsity in Actions for Deceit.—Positive proof of knowledge of the falsity of representations by the person making them is not required, but may be inferred from other facts which are proved.</p>

Bill for Injunction.—Trial in the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Hearing and decree for complainant; appeal by defendant. Statement of the Case.—Appellant and appellee made the following contract upon the considerations therein named, viz.: “ Chicago, III., February 3, 1897.

<p>1. Instructions—As to the Weight of the Evidence.—An instruction upon the weight of the evidence which singles out a particular witness and applies to him a rule, which should have been made to apply, if at all, to others, who were witnesses in the case as well, is properly refused.</p>

<p>Assumpsit, on a promissory note. Trial in the Circuit Court of Cook County; the Hon. Eichard S. Tuthill, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant.</p>

Assumpsit.—Attachment in aid. Trial in the Circuit Court of Cook. County: the Hon. John C. G-arver, Judge, presiding. Finding and judgment for defendant on the attachment issue; appeal by plaintiff. Statement of the Case.—Appellant begun suit in assumpsit against appellee, a corporation, January 15, 1898, for merchandise and goods sold and delivered to appellee at its request, and on the same day an attachment in aid was issued and levied on certain personalty.

Action in Case, for personal injuries. Trial in the Superior Court of Cook County: the Hon. Samuel C. Stough, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. Equity Practice—Enjoining the Issue of Tax Deeds.—A bill to enjoin the issuing of a tax deed and to obtain a surrender of a tax certificate is not to be treated as a bill to quiet a title or to remove a cloud from the title.</p> <p>0. Same—Party Out of Possession Can Not Maintain Bill to Quiet Title.—A party out of possession can not maintain a bill in chancery to quiet title, but he can bring an action at law to test the 'title, which ordinarily, a party in possession can not do.</p> <p>3. SAME'—Decrees Enjoining' Tax Deeds — Requisites. — A decree enjoining the issue of a tax deed which grants relief to the complainant but allows him to escape from the consequences of a sale for a valid tax resulting from his lack of effort to make payment on his part, without requiring, as a condition to such relief, that he pay the moneys expended in purchase, payment of taxes, costs, interest, etc., is erroneous.</p> <p>4. Costs—Setting Aside Tax Deeds.—Where there, is no allegation in a bill to set aside a tax deed of a tender made to the holder of the certificate, of the amount due for redemption before the commencement of the suit, the payment of the costs of the suit should be imposed upon the complainant.</p>

Action in Case, for persona! injuries. Trial in the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Assumpsit, for merchandise sold and delivered. Trial in the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Verdict and judgment for plaintiffs; appeal by defendants.

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

<p>Assumpsit, upon the common counts and a written guaranty. Trial in the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiff.</p>

Foreclosure.—Trust deed. Trial in the Circuit Court of Cook County; the Hon. Murray F. Toley, Judge, presiding. Decree for complainant; error by defendants. Statement of the Case.—Defendant in error, Mary E. Hart, filed her bill to foreclose a trust deed given by the plaintiffs in error to secure a note for $1,200, executed and delivered by them to one John W. Hart in his lifetime. The complainant, Mary E. Hart, sues as the legal holder and owner of said note.

Charles G. Neely, Judge, presiding. Statement of the Case.—The appellee, Thompson, confessed a judgment for $143.79 in favor of the Chicago Sash & Door Co., before a justice of the peace, December 11, 1895, on which immediate execution was issued and returned nulla Iona.

<p>1. Stockholders—Right to Examine the Records, Papers and, Boohs of His Corporation.—A stockholder has the right to examine the records, papers and books of his corporation.</p> <p>2. Mandamus—To Enforce the Rights of Stockholders.—Before a court will be justified in issuing a writ of mandamus to enforce the right of a stockholder to examine the records, papers and books of his corporation, there must have been some refusal or obstruction interposed to the enjoyment of such right by the party against whom the writ is sought.</p>

<p>1. County Courts —Jurisdiction over Parties Appealing from a 1 I Justice, When Acquired.—Although the County Court acquires jurisdiction of the persons of the plaintiff and the defendant, by the filing of the appeal bond by the one, and the entry of appearance by the other, before the term at which the appeal is dismissed, jurisdiction of the subject-matter is not acquired until the justice’s transcript is filed.</p> <p>2. Statutes—Act of 1895 Relating to Justices Does Not Repeal Sec. 68 of the Justice's Act of 1872.—The act of 1895 contains no repealing clause, either particular or general, and so section 68 of the act of 1872 remains in full force, and is to be read and considered in connection with Sec. 1, Art. X, of the act of 1895.</p> <p>3. Same—Repieal by Implication, When Possible.—There must be a positive repugnancy between the provisions of a new law and an old one, to work a repeal by implication; and even then the old law is repealed only to the extent of such repugnancy.</p> <p>4. Same—Repeal by Implication Not Favored by the Courts.—Repeals by implication are not favored by the courts, and no statute will be construed as repealing a prior one, unless so clearly repugnant thereto as to admit of no other reasonable construction.</p> <p>5. Appeals—Office of the Justice's Transcript.—The justice’s transcript performs the office of a declaration in original suits in courts of record, and the requirement that it shall be filed ten days before the first day of the term of court at which the case stands for trial, is in analogy with the practice in courts of record, requiring declarations to be filed ten days before the first day of the term at which judgment may be applied for.</p>

Assumpsit, for goods sold and delivered. Trial in the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant.

Assumpsit, on a contract of indemnity. Trial in the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Finding and judgment for plaintiff; appeal by defendants.

Assumpsit, on a contract in writing. Trial in the Circuit Court of Cook County; the Hon. Charles E. Fuller, Judge, presiding. Verdict and judgment for defendant by direction of the court; appeal by plaintiff. Statement.—In the latter part of the year 1892 negotiations were pending between parties variously interested in relation to the erection of a large office building at the southwest corner of La Salle and Washington streets in Chicago.

<p>1. Equity Jurisdiction—Over Persons in Fiduciary Capacities— Fraud.— In all cases where a confidential relation exists between parties, and the transaction is prejudicial to the interest of the dependent or subordinate one, it will be held to be constructively fraudulent; and in the absence of clear proof that it was the deliberate act of the injured one done upon a full knowledge and understanding, it must be overthrown. Actual and intentional fraud need not be shown in order to overthrow such a transaction.</p> <p>2. Frauds—Unconscionable Acts by One Occupying a Superior Position, etc.—Measure of Proof.—It is sufficient to show that the one occupying the superior position of confidence has gained an advantage in the dealing with the one occupying the dependent or subordinate position to throw upon him the burden of proving good faith and absence of influence by himself, and of knowledge, freedom of action and deliberate intention of the other.</p>

<p>Assumpsit, for commissions. Trial in the Circuit Court of Cook County; the Hon. Elbridgb Hanbcy, Judge, presiding. Finding and judgment for plaintiff; error by defendant.</p>

Voluntary Assignment.—Error to the County Court of Cook County; . the Hon. Orris N. Carter, Judge, presiding. Statement of the Case.—The defendant in error, the Northwestern Loan ' & Building Association, made an assignment to plaintiff in error August 6, 1895, ostensibly for the benefit of its creditors. The same day the plaintiff in error filed his bond as assignee.

Bill to Redeem from an Execution Sale.—Trial in the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Decree for complainant; appeal by defendants. Statement of the Case.—The bill of complaint in this cause was filed by appellees jointly, to set aside a deed issued by the sheriff of Cook county on October 37, 1893.

Assumpsit, on a promissory note. Trial in the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant. Statement of the Case.—This is an action in assumpsit upon a promissory note and guaranty, which are as follows: “No. 759. $450 Oakdale, Nebraska, April 27, A. D. 1889.

<p>1. • Mechanic’s Lien—Sub-Contractor’s Contract, Act of 187£.—Sec-tions 29 and 45 of the Mechanic’s Lien Law of 1874 are parts of the same act and relate to the same subject-matter, namely, the liens of sub-contractors, and must be read and construed together.</p> <p>2. Same—Where the Principal Contractor Abandons his Contract. —Under the act of 1874, sub-contractors are entitled to liens when the principal contractor abandons his contract, and such liens are to be limited to the original contract price, less payments rightfully made by the owner.</p> <p>3. Same—Where the Original Contract Price Has Been Fraudulently Fixed Unreasonably Low.—Where the contract price has been fraudulently fixed unreasonably low by the owner and contractor for the purpose of defrauding sub-contractors, then the difference between the contract price so fixed and a fair price for the labor and material, when ascertained, is to be regarded as the actual .contract price.</p> <p>4. Estoppel—To Claim a Contract Different from the Details.— Where the detail drawings furnished to a contractor from which to make an estimate for the purpose of bidding on the work do not show the parts of the work in question, the person furnishing such drawings is estopped to claim that the contract included such parts.</p> <p>. 5. Evidence—Of Witnesses Swearing Falsely.—When a witness willfully swears falsely in relation to a material fact, a jury is not. from that circumstance alone, warranted in wholly disregarding his testimony. It is the uncorroborated testimony of the witness that may be disregarded.</p> <p>6. Presumptions—Failing to Produce Evidence.—The mere withholding or failing to produce evidence, which, under the circumstances, a party is expected to produce, and which is available, gives rise to a presumption against such party.</p> <p>■ 7, Parties—Objection for Want of, Must be Made in the Court Below.—Where no objection for want of parties wa^ made either before the master or the court, it can not be made in the Appellate Court for the first time.</p> <p>8. Sales—Under Decree for Liens.—Where a building is erected on one lot and the adjoining ten feet of another, and under one roof, it is properly decreed to be sold as a whole.</p> <p>9. Notice—Of Liens Necessary.—Whore a notice of lien is not served on a party, his interest in the premises is not chargeable with the lien.</p>

<p>1. Construction of Contracts—Assumption of 3Iortgage Debt by Grantee of the Fee.—When the mortgage debt is specified in the clause by which the grantee of the fee assumes and agrees to pay, then the grantee undertakes to pay the entire amount of the debt, although the mortgage covers other lands as well, and his liability in snob case is not limited to such part thereof only as is equitably chargeable upon the lands purchased.</p>

Assumpsit, on promises, etc. Trial in the Circuit Court of Cook County; tlie Hon. Richard W. Clifford, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant. Statement of the Case.—Appellee leased premises to appellant, upon which the latter conducted a manufacturing business. During the term of the tenancy the buildings leased were destroyed by fire. Both landlord and tenant recognized the lease as terminated by the destruction of the building.

<p>Action in Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Verdict for plaintiff, nominal damages; error by plaintiff.</p> <p>Statement.—In his brief and argument, counsel for plaintiff in error states the case, as now before this court, as follows:</p> <p>“ This writ of error is prosecuted to reverse a judgment of one dollar damages, rendered in favor of the plaintiff in error, in an action on the case.</p> <p>The grounds upon which a reversal is asked are, first, that the damages are unreasonably inadequate, and, second, because of certain errors going to the question of liability.</p> <p>The facts of the case briefly are as follows: The plaintiff was one of a number of police officers stationed at Fiftieth and State streets, in the city of Chicago. Upon the night in question, a fire alarm was sounded, which rendered it necessary that the patrol wagon and a number of police officers should proceed with haste to the fire, which was a considerable distance to the east. The policemen, including the plaintiff, boarded the patrol wagon, which was driven by Zindell, a man employed for that special purpose. The wagon was covered, with a curtain in front, immediately behind the driver’s seat. There was a heavy gong on the wagon, in a position where the driver could ring it with his foot while driving.</p> <p>“The wagon proceeded immediately east on Fiftieth street to Indiana avenue, where, while crossing the street car tracks, it was struck by a south bound electric car belonging to defendant, was turned upside down, and the plaintiff and several other officers were seriously injured.”</p> <p>In addition to the foregoing, it should be stated that plaintiff in error was in charge of the patrol wagon; that he was on the seat with the driver, although at the moment of the accident he had partially turned, so that his back was toward the approaching car, while he was assisting to' roll up and fasten the curtain which was across the wagon, back of the seat upon which the driver and the plaintiff in error were seated.</p>

<p>Bill in Equity, to obtain the rescission and cancellation of an agreement in writing. Trial in the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Bill dismissed on demurrer; appeal by complainant.</p>

<p>Bill of Foreclosure.—Trial in the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Decree for complainant; appeal by defendant.</p> <p>Statement.—May 7,1896, this bill of complaint was filed in the Circuit Court of Cook County. It is not deemed necessary to state fully the details of the many complications in this case, but it is believed that the following statement of fact, in connection with such facts as appear in the opinion, is sufficient to enable the reader to understand the questions involved and the views of the court.</p> <p>Appellee made nine loans from the firm of P. E. Chandler & Co. After this case was at issue, and after a part of the testimony had been taken before the master, Peyton E. Chandler departed this life, leaving the appellant the only surviving member of said firm. The death of said Peyton E. was suggested of record, and this suit thereafter continued in the name of appellant as such survivor. In this statement, from this on, and in- the opinion of the court, unless otherwise specially stated, appellant will be regarded and spoken of as though he had been originally the only person interested in said firm.</p> <p>The payment of three of these loans, five years afterdate, is secured by notes and trust deeds, dated October 1, 1895. The payment of the other six of said loans, three years after date, is secured by notes and trust deeds, dated November 25, 1895. All of said notes and trust deeds are executed by appellee and her husband. Each one of said nine trust deeds conveys real estate belonging to appellee. The interest on each and all of said loans is at the rate of six per cent per annum, payable semi-annually, and is evidenced by interest coupons. The aggregate amount of said loans, exclusive of interest, is $21,900. They are what are called “ building loans.” All of said notes are payable to the order of the makers thereof, and are by them indorsed in blank.</p> <p>On behalf of appellant it is contended that the buildings to be erected upon the several lots described in said trust deeds were each to cost specified sums. On the part of appellee it is contended that such buildings were to be like certain other designated buildings, without regard to the question of cost. Appellee erected a building upon each one of said lots which did not cost more than about one-third the amount, which appellant claims was to be the cost thereof, but which were substantially like the buildings which appellee claims were agreed upon as the pattern. Appellant paid to appellee on account of said loans $1067.81, and declined to pay any further sum. on account thereof.</p> <p>As to the first three of said loans, they being for five years, a commission of six per cent, and as to the other six of said loans, they being for three years, a commission of five per cent, was to be paid by appellee to appellant. This, it is contended by appellee, constitutes usury.</p> <p>The original bill of complaint prays for an accounting as to said nine loans, and as to what is there called “ said exorbitant and usurious commissions;” that said trust deeds be decreed to be clouds upon appellee’s title; that they be set aside, and said notes be surrendered and canceled; and that if appellant has sold said notes, or for any other reason this can not be done, appellant be decreed to consummate the loans and pay to appellee the balance thereof.</p> <p>• Prior to the making of any of said nine loans, appellant had made to appellee twenty-one other building loans. Notes, interest coupons and trust deeds were made for each of said twenty-one loans, substantially the same as for each one of said nine loans. All of the principal notes and the. interest coupons in the thirty loans had been sold and delivered by appellant to various purchasers prior to the filing of said bill of complaint. They were not indorsed by appellant or his firm, and there is no contract liability shown to exist upon the part of appellant upon said notes or either of them.</p> <p>On behalf of appellant it is contended that in equity all of said thirty loans should be treated as one transaction; that the several buildings erected upon the lots embraced in said twenty-one loans were not of the kind or value agreed by appellee to be erected; that appellee thereby perpetrated a fraud upon appellant and upon the owners of said securities ; that appellant did not discover such fraud until after said nine loans had been negotiated and the papers securing the same executed and delivered; and that therefore appellant declined to pay to appellee any further sum on account of said nine loans.</p> <p>The original bill refers to the nine loans only, and makes no mention of" the other twenty-one loans. Upon answering said original bill, appellant filed a cross-bill, setting out said twenty-one loans, and praying that appellee be decreed to fulfill the agreement as to erecting buildings of the value claimed by appellant to have been agreed upon, and that in case the performance of such agreement is now impracticable, then, as stated in the prayer of said cross-bill :</p> <p>“ That all such loans be equitably scaled down, so that the amounts then outstanding as loans against said premises s,hali bear the same ratio to the cost of land and buildings as the amounts originally loaned thereon, bear to the valuation of land and buildings contained in said written applications for loans, and that if it shall be found that cross-complainants have advanced more than they were equitably required to advance at such a ratio, then that a decree be entered for such excess and that execution issue therefor.’’</p> <p>Alfred L. Ward (the husband of appellee) and £‘the unknown owners and holders of said notes and trust deeds ” are made parties defendant to said original bill. They are not brought into court, and do not appear or answer the bill, neither is the bill dismissed as to them. Appellee and said Alfred L. Ward are made defendants in said cross-bill and answer the same, thereby substantially admitting the allegations of the original bill to be true. In the brief for appellee filed in this court, it is proposed to file a written stipulation' by said Alfred L. Ward, binding him by this proceeding, as if he had answered the original bill.</p> <p>The final decree entered by the Circuit Court provides that appellant procure possession of the several notes and trust deeds pertaining to said nine loans, and cause said trust deeds to be released of record and said notes canceled and surrendered within thirty days, and that simultaneously therewith appellee pay to appellant the sum advanced by appellant to appellee on account of said nine loans, viz., $1,067.81, and that in case appellant shall not procure such release, surrender and cancellation upon the payment by appellee of such advances, that then appellant pay to appellee the balance of the amount of said loans, viz., $20,842.19. The decree disallows the commissions to appellant, and allows to appellee interest on the balance found not to have been paid to appellee by appellant at the same rate appellee is bound to pay therefor by said notes and interest coupons. It is also decreed that said cross-bill be dismissed for want of equity, and that appellant pay the costs to be taxed.</p> <p>The money necessary to complete said loans is in the hands of appellant, and was by him credited to appellee.</p>

<p>1. Fraud—Proper Conclusions. —The court holds in this case that the findings in the decree are conclusive; that the whole transaction was a fraudulent one from inception to conclusion, as against the complainant, and affirms the decree.</p>

Assumpsit, to recover rent under a written lease. Trial in the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Verdict and judgment for plaintiff: appeal by defendant.

Action in 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>Bill to Foreclose a Mortgage.—Error to the Circuit Court of Cook County; the Hon, Edward F. Dunne, Judge, presiding.</p>

<p>1. Fraud—When One of Two Innocent Persons Must Suffer.—When one of two innocent persons must suffer loss by reason of the fraud or deceit of another, the loss should fall upon him by whose act or omission the wrongdoer has been enabled to commit the fraud.</p> <p>2. Payment—By a Dishonored Check.—An attempted payment by a check which is dishonored is no payment at all.</p> <p>3. Replevin—Of Goods Obtained under False Representations.— Where goods are delivered to the possession of another in the expectation that the price will be immediately paid and it is not, the vendors are at liberty to treat the sale as conditional and reclaim the goods.</p>

<p>Assumpsit, for rent. Trial in the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.</p>

Petition, for widow’s award. Trial in the Circuit Court of Cook County on appeal from the Probate Court;, the Hon. Edward F. Dunne, Judge, presiding. Decree for petitioner; appeal by respondents.

Assumpsit, on a contract of employment. Trial in the Circuit Court of Cook County, on appeal from a justice of the peace; the Hon. Elbridge Hanecy, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Statement.—This suit was brought upon a written contract.

<p>1. Practice—Presence of Defendant in Court.—The personal presence in court of a defendant in contempt proceedings at the moment the order is entered is not necessary in order to confer jurisdiction over him where he has had notice of the rule upon him and has appeared and answered to it.</p> <p>2. Same—Presence of Defendant—Presumptions.—After a party has once been brought into court, the presumption is that he is present and cognizant of any step taken in the cause, until it is terminated, unless considerable time has elapsed without any steps having been taken in the case.</p> <p>3. Same—Juries in Contempt Proceedings.—A chancery court has authority to enforce its decree through proceedings for contempt without the intervention of a jury.</p> <p>4. Imprisonment for Debt—What is Not.—A commitment in contempt proceedings is not an imprisonment for debt.</p>

Indictment, for obtaining money on a worthless draft. Trial in the Criminal Court of Cook County: the Hon. Arthur H. Chetlain, Judge, presiding. Verdict and judgment of guilty; error by defendant.

<p>Appeal, from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.</p>

Bill for an Injunction.—Trial in the Circuit Court of Cook County; the Hon. H. Waterman, Judge, presiding. Decree dismissing the bill; appeal by complainant. Statement.—Appellant is an Illinois corporation, and had, for some time prior to March, 1893, been engaged in the publication of a daily and also a weekly newspaper at Chicago, its principal place of business.

Bill in Equity.—Trial in the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding. Decree for complainant; appeal by defendants. Statement.—Two suits in equity were consolidated and heard together in this proceeding. The decree is upon the consolidated cases. The complainant in each bill of complaint ivas, at the time of beginning the suit, a simple contract creditor of the Climax Cycle Company, an insolvent corporation.

Assumpsit.—Tidal in the Circuit Court of Cook County, on appeal from a justice of the peace; the Hon. Richard W. Clifford, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant. Statement by the Court.—This is an appeal from a judgment in favor of appellee and against appellant, for the sum of $45, rendered in the trial court on appeal from a justice of the peace. The cause was tried' by the court, without a jury, by agreement of the parties.

Creditor’s Bill.—Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Statement.—A creditor’s bill was filed on January 7, 1898, by parties not here concerned, against one Ellinger, judgment debtor, which was afterward amended to make appellant a party defendant, and by which the property here involved was sought to be subjected to the satisfaction of the judgment against Ellinger.

Action in 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 defendants. Statement.—May 24, 1895, appellee was in the employ of appellants. He was in charge of and operating what is called a hand elevator. The only force or power used or applied, aside from gravitation, was that of a man or of men by pulling a rope.

Action in Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>■ 1. Assignment—Note Secured by a Mortgage.—The assignment of a note, secured by a mortgage before the maturity of the note, passes the mortgage also as an incident of the debt, and the assignee takes all the rights of the mortgagee.</p> <p>2. Notice—Construction Sec. SI, Ch. SO, R. S.—Section 31 of Chapter. 30, R. S., entitled “ Conveyances,” providing that instruments of writing relating to real estate, shall be deemed, from the time of being filed for record, notice to subsequent purchasers and creditors, though not acknowledged or proven according to law, takes the place of actual notice to an assignee of a subsequent mortgage, and it is his duty to examine the record of prior mortgages and their recitals securing negotiable notes not due and liable to be outstanding in the hands of the innocent holders for value, and ascertain, the truth of these matters.</p> <p>3. Deeds—Construction of.—In construing a deed, courts will look not only to the words of the deed, but also to the circumstances and condition of the parties as they existed at the time of the execution of the deed.</p>

Assumpsit, on a contract. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Statement by the Court.—This was an action of assumpsit on a contract, which, with the indorsements- thereon, was put in evidence, and is as follows: “ No. 11,248. §420. Chicago, III., 6-20, 1892.

<p>1. Carriers of Passengers— What is Not an Improper Exercise of the Police Power Conferred by Statute.—If a conductor, acting in good faith, requests a passenger to leave the train for non-payment of fare, and upon his refusal uses only such force as is reasonably necessary to eject him, such removal is not an improper exercise of the police power conferred by statute, and is not an unjustifiable assault per se. It is only when, under such circumstances, unreasonable and unnecessary force and violence are used, that such an assault begins.</p> <p>2. Assault—Defined.—An assault is defined to he an unlawful beating.</p> <p>3. Trespass—When it Will Lie Against a Railroad for Forcibly Ejecting a Passenger.—Trespass will lie against a railroad company for forcibly ejecting a passenger where the ejection is unlawful in itself, and not from the mode of doing it.</p> <p>4. Same—Matters of Justification Must be Specially Pleaded.—Matters in discharge or justification in an action of trespass must be specially pleaded and can not be given in evidence under the general issue.</p> <p>5. Statutes—Abolishing the Distinction Between Trespass and Trespass on the Case.—The statute abolishing the distinction between trespass and trespass on the case does not operate to give any other remedy for acts so done than before existed. But the statute has removed any foundation for the objection that case and trespass can be joined, or that one count in a declaration is in trespass and another in case.</p> <p>6. Witnesses—Tests Must Extend to All Alike.—A. test, when applied to one witness, must extend to all alike who are interested.</p> <p>7. Passengers—Duty to Obey Conductor.—It is the duty of the passenger to leave a train when requested, whether rightfully or wrongfully, by the conductor; and if he refuses and is injured in consequence by being forcibly expelled, provided only such force is used as is reasonably necessary, he can not recover damages. An actual refusal by the passenger is not necessary if his conduct is equivalent thereto.</p> <p>8. Conflicting Evidence—Jury Should be Com'ectly Instructed.— Where there is a conflict in the evidence it is important that the jury should be incorrectly instructed.</p>

<p>Appeal from an Interlocutory Order of the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>1. Contributory Negligence— Will Bar a Recovery.—Any negligence on the part of the plaintiff, however slight, which contributes to an injury, will bar a recovery.</p> <p>3. Instructions—Misleading, When Reversible Error.—In a case where the evidence is conflicting, an instruction which is argumentative and calculated to mislead a jury, requires a reversal of the judgment.</p> <p>3. Same—Erroneous, When Not Cured by Others.—Instructions which announce to the jury incorrect rules of law are not cured by other and correct instructions.</p>

<p>1. Pleading—Pending of a Former Suit.—The pendency of the former action, upon writ of error or appeal, merely defeats the present proceeding. It is not necessarily a bar to the action, and should ordinarily be pleaded in abatement.</p> <p>3. Practice—Effect of Entering Appearance.—If a defendant enters his appearance to a declaration, a judgment is binding, although a writ has not been issued or service had.</p> <p>3. Same—After All Pleas Are Overruled.—After the pleas to a declaration have all been overruled, and nothing remains but to assess damages, either party may have the damages assessed by a jury. (Rev. Stat., Chap. 110, Sec. 41.)</p> <p>,4. Same—Effect of a Failure to Preserve Points.—Where an appellant fails to preserve by a bill of exceptions the points upon which he relies, he must suffer the consequences.</p>

<p>!• Appellate Court Practice—Insufficient Abstract.—An abstract of the record which is a mere index is insufficient.</p> <p>2. Same—Where a Judgment Will Not be Reversed.—No judgment wjp be reversed for errors which are not made to appear by the abstract.</p> <p>3. Abstracts— The Word “ Judgment” Shows no Judgment.—The sinok word “ Judgment ” appearing in the index filed as an abstract of the record is not sufficient to indicate that there was a judgment rendered in the cause. -</p>

<p>Assumpsit, on promissory notes. Trial in the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Verdict and judgment for plaintiff; error by defendant.</p>

<p>Assumpsit, on an account stated. Trial in the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.</p>

John Gibbons, Judge, presiding. Statement.—This is an appeal from an interlocutory order enjoining the appellant corporation from “dissolving said corporation, or from in any way disposing of or closing up its business, until the further order of the court.” It appears from the bill, and exhibits made a part thereof, that the appellant, the brick company, executed to Kaehler, appellee, a lease of date December 15, 1897, of certain described premises in Cook county, Illinois,…

Assumpsit, on a contract in writing. Trial in the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Held: upon propositions of law submitted, that the notice was sufficient, that appellee having refused to purchase upon the ground that the contract was illegal, the sufficiency of the notice was unimportant, and, in effect, that a recovery could not be had by appellants because the contract for the purchase of the stock was illegal under…

<p>Appeal from ail Interlocutory Order appointing a receiver, entered by the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding.</p>

Action for a Conspiracy.—Trial in the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Judgment for defendants on demurrer to the-declaration; plaintiff abides by his declaration and brings error. Heard in the Branch Appellate Court at the March term, 1899.

<p>Action in Case.—Death from alleged negligence. Trial in the Superior Court of Cook County; the Hon. Paulin Q. Ball, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.</p>

Action in Case, for injuries inflicted by a minor child. Trial in the Circuit Court of Cook County; the Hon. Charles E. Fuller, Judge, presiding. Verdict and judgment for defendant by direction of the court; error by plaintiff.

<p>Attachment and Garnishment Proceedings.—Appeal from the Circuit Court of Cook County; the Hon. Riohabd W. Clifford, Judge, presiding.</p>

<p>1. Release—By One of Several Joint Obligees.—A mere preliminary recital in a release expressing an intention of the parties executing it, not to release a certain joint obligor, is not enough to overcome the proposition of law that an instrument which absolutely and unconditionally releases one joint obligor, will operate to release his other joint obligors, unless it appears “upon its face, and in connection with the surrounding circumstances, that it was the intention of the parties not to release the co-obligors;” and such will belts legal effect, though the parties are ignoz-ant thereof when the release is executed.</p> <p>2. .Joint Obligors—Release of One Discharges All.—The reason why a release of one of several co-obligors discharges all, is that by such release the right of contribution is out off. Where such right is reserved, the release will be construed as a covenant not to sue, leaving the liability of the co-obligors unimpaired.</p>

<p>1. Replevin—When Plaintiff Fails to Prosecute his Suit.—If the plaintiff in an action of replevin fails to prosecute his suit with effect, judgment is to be given for a return of the property and damages for the use thereof.</p> <p>2. Judgments—Sec. S, of Chap. 7, R. S., Applicable to Appellate Court.—Section 3 of Chap. 7, R. S., providing that no judgment shall be reversed in the Supreme Court for mere error in form, if the judgment be for the true amount of indebtedness or damages, is alike applicable to the Appellate Court.</p> <p>3. Same—Substance Rather than Form.—Substance rather than form is to be considered in determining whether a judgment is sufficient.</p>

Assumpsit, upon a verbal agreement. Trial in the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

Assumpsit, to recover the amount due upon withdrawal of ten shares of stock. Trial in the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Statement.—Appellee brought this suit against appellant in assumpsit to recover the amount due upon withdrawal of ten shares of stock of the appellant association.

<p>Assumpsit, on a marriage contract. Trial in the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Finding and judgment for defendant; appeal by plaintiff.</p>

Assumpsit.—On contract to furnish heating apparatus. Trial in the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Verdict and judgment for defendant; error by plaintiff.

<p>1. Appellate Court Practice—Second Appeal—Bes Adjudicata.— Where the questions presented are identical with those adjudicated upon the former appeal, the law of the case then announced controls so far as the case on the second appeal is concerned.</p>

<p>1. Decrees—Are Binding Only upon the Parties.—The interest of persons who are not parties to a suit, and with no decree entered against them, are not-affected by the decree and by the order appointing the receiver.</p> <p>2. Receivers—Powerless as to Persons Not Parties or Privies.—A receiver is powerless as against parties not within the jurisdiction of the ■court appointing him, and not claiming under rights pendente lite from parties over whom jurisdiction has been properly acquired.</p> <p>3. Deficiency Decrees—When a Receiver will he Appointed Under. —Where there is a deficiency decree, unless it appears that injustice will thereby be caused, or some reason exists justifying expectation that the deficiency can be otherwise satisfied, the court may appoint a receiver to enforce its judgment and decree, where the mortgaged premises is insufficient security and the person liable of very questionable responsibility. And this power exists where there are no express words in the mortgage giving a lien upon rents and profits.</p>

Order Denying Leave to File a Bill of Review.—Appeal from the Circuit Court of Cook County: the Hon. Edmund W. Burke, Judge, presiding. ' Statement.—Appellee was divorced from appellant January 22, 1897, being awarded by the decree the custody of her child, and alimony and solicitor’s fees, which was on appeal affirmed by this court (72 Ill. App. 94), and also by the Supreme Court (171 Ill. 632).

—Entered by the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Statement.—Appellee obtained a decree of divorce in her suit against appellant. Appellant presented his petition for leave to file a bill of review to reverse that decree. Upon hearing of the petition the court ordered it dismissed and denied the leave prayed.

Action in Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Statement.—This cause was begun by appellee to recover dam'agósfo'r personal injuries, alleged to have resulted from negligence of appellant.

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

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

Assumpsit.—Trial in the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Finding and judgment for plaintiffs; appeal by defendants. Statement of Facts.—This case was heard by the Circuit Court without a' jury, upon agreed facts, and the testimony of two witnesses for appellees and one for appellants.

<p>1. Insurance—Waiver of Right to Demand Appraisal of Property.— Where an insurance company denies any liability whatever, it has no right to demand an appraisal of the property.</p> <p>2. Garnishment—For Unliquidated Damages.—Under the facts and circumstances of this case, the amount due from the insurance company to the insured was subject to garnishment, although such claim was not adjusted and was disputed by the company.</p>

Action in Case, for personal injuries. Trial in the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Verdict and judgment for defendant: error by plaintiff.

<p>1. Libels—Injunction to Restrain the Publication of.—A court of chancery will not interfere by injunction to restrain the publication of a libel.</p> <p>3. Injunctions—Equity Jurisdiction to Restrain Libels.—A court of equity can not, under its common law powers, by injunction, restrain the publication of a mere libel.</p>

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding. Verdict and judgment for defendant by-direction of the court: error by plaintiff.

Assumpsit, against the guarantor on a promissory note. Trial in the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Finding and judgment for plaintiff; error by defendant.

Action for Personal Injnries.—Trial in the Superior Court of Cook County; the Hon.-John Barton Payne, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Statement.—This action was brought in the court below, by Godfrey A. Tallerman, appellee, against the University Club, a corporation, the National Electric Construction Company, a corporation, and the appellant, William D. Boyce.

<p>1. Fixtures—Where New Lease is Taken Without Reserving Right of Tenant to Fixtures Erected Under Former Lease.—At the expiration of a lease during which trade fixtures had been erected by the tenant, and a new lease taken of the same premises, containing no reservation of any right or claim of the tenant to the fixtures still remaining on the premises, and without recognizing the right of the tenant to remove them, such fixtures erected under the former lease can not be removed by the tenant during or at the end of the new lease, notwithstanding his actual possession of the premises has been continuous.</p>

<p>1. Equitable Assignments—Requisites of.—No particular form of words is necessary in order to constitute a valid assignment of a debt or other chose in action, in equity. Any words are sufficient which show an intention of transferring the chose in action to the assignee for a valuable consideration. Any order, writing." or act which makes an appropriation of a fund, amounts to an equitable assignment of the fund. The question in all cases of equitable assignments is what was intended by what was said and done by the parties.</p> <p>2. Security—For Debt—Rights of Holder.—One holding security for a debt, is entitled, in the absence of an agreement to the contrary, to hold all the security until all the debt is paid.</p> <p>8. Payment—Burden of Proof.—Payment is a fact to be proved by the party claiming the benefit of it.</p>

<p>1. Search Warrants—Who May Issue.—Any judge or justice of the peace may, upon complaint on oath, issue a search warrant when satisfied that there is reasonable cause.</p> <p>2. Same—When They Will Not Issue.—The constitutions of this State and of the United States provide that no such warrant shall issue without probable cause, supported by affidavit.</p> <p>3. Same—Probable Cause, How Shown—Mere Belief Not Sufficient.— The evidence must be of such facts as shall satisfy the magistrate that suspicion is well founded. The affidavit must show probable cause arising from facts within the knowledge of the affiant, and must exhibit the facts on which the belief is based; his mere belief is not sufficient.</p> <p>4. Construction of Statutes—Sectores 115 and 116, Ch. 88, R. S.,. Not Repealed by Implication by Chap, llfi, R. S.—Sections 115 and 116 of chapter 38 apply to unregistered private stamps, labels or trademarks, while chapter 140 provides for the protection of those which it requires to be filed for record with the Secretary of State. It does not seem to cover the whole subject-matter of the former, and can not be held to repeal it by implication.</p> <p>5. Same—Rule of Construction.—It is a role of construction that general words following an enumeration of special cases, apply only to things of the same character as those expressly mentioned.</p> <p>6. Trade-Marks—Counterfeit Trade-Marks Not Necessarily Forgery. —A counterfeit trade-mark is not necessarily a forgery, though it may be where it contains a guaranty expressed or implied.</p> <p>7. Certiorari—When it Will Lie.—The Circuit Court has power to award the writ of certiorari at common law to inferior tribunals, when it appears from the face of the record that the latter have exceeded their jurisdiction, or where they have proceeded illegally and no appeal of other mode of review is provided.</p> <p>8. Same—Purpose of the Writ.—The purpose of a writ of certiorari is to bring the proceedings of inferior tribunals before the court for review, where they have exceeded their jurisdictions, within which it is the proper province of the court to restrain them.</p>

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

Trespass on the Case, for personal injuries. Trial in the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant.

<p>1. Partners—Who Will be Held to be.—Where two brothers are equally prominent in a business, in its name, and in its various transactions, they will be held to be partners as to third parties who trust them upon the faith of what they themselves profess to be.</p> <p>2. Same—When a Person is Estopped from Denying that he is One. —A man may so act as to make himself liable as a partner whether he be so in fact or not, and when he has so acted he estops himself from denying that he is a partner, as to others who rely upon his actions and give credit upon the faith that he is what he seems to be.</p> <p>3. Estoppel—By the Acts of a party.—One who has knowingly led another person reasonably and in good faith to rely upon the existence of a certain condition of things, is estopped from afterward denying, to the prejudice of such person, that such a condition of things did exist.</p>

Action in Case, for personal injuries. Trial in the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.

Assumpsit, on a promissory note. Trial in the Superior Court of Cook Count)-; the Hon. John Barton Payne, Judge, presiding. Verdict and judgment for plaintiff; error by defendant. Statement.—This suit was brought by-defendant in error against plaintiffs in error and one Goodall, to recover against them jointly upon a promissory note made by Goodall in the name of G. B. Goodall & Co. The declaration contains a special count on the- promissory note and the common counts.

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

Assumpsit. —Common Counts. Trial in the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Finding and judgment for plaintiff; error by defendant. Statement by the Court.—February 24, 1896, John Mitchell commenoecl an action of assumpsit against John King, the plaintiff in error.

Assumpsit, on promissory notes. Trial in the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Verdict and judgment for plaintiff against the defendants Hoyt and Edwards. Appeal by said defendants.

<p>1. Fraudulent Conveyances—Deeds to Relatives.—Where a conveyance of real estate is made by a father to his daughter at a time when he is insolvent and wholly unable to pay his debts the conveyance is fraudulent as to all equities above bona fide incumbrances and the amounts owing from him to his daughter. Creditors should be allowed to redeem the property by paying the amount due, with interest and taxes paid.</p>

Action in Case.—Death from negligent act. Trial in the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Verdict and judgment for plaintiff. Error by defendant. Statement.—Joseph Triska, plaintiff’s intestate in this suit, came to his death through injuries received on the 8th of August, 1895, while engaged as an employe of plaintiff in error.

<p>1. Real Estate Broker—When Entitled to Commissions.—A real estate broker who is the efficient and procuring cause of a sale of real property is entitled to his commissions.</p>

Creditor’s Bill.—Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Statement by the Court.—This is an appeal from a decree rendered on a creditor’s bill filed by appellees, as complainants, January 7, 1898, against appellants and others as defendants, to reach the assets of the Singer & Talcott Stone Company, in the possession of the defendants as stock-: holders. Edward T. Singer, Charles G-.