Volume 85 — Illinois Appellate Court Reports

Action on the Case, for personal injuries. Trial in the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiff. Heard in this court at the May term, 1899.

Assumpsit, on a judgment note. Trial in the City Court of Elgin; the Hon. Russell P. Goodwin, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1899.

Bill to Remove a Cloud upon Title.—Trial in the Circuit Court of Henry County; the Hon. William H. Gest, Judge, presiding. Hearing and decree for complainants; appeal by defendant. Heard in this court at the May term, 1899.

Replevin.—Trial in the Circuit Court of Peoria County; the] Hon. Thomas M. Shaw, Judge, presiding. Finding and judgment for defendant; appeal by plaintiff. Heard in this court at the May term, 1899.

Assumpsit, on a promissory note. Trial in the County Court of Livingston County; the Hon. C. M. Barickman, Judge, presiding. Finding and judgment for defendant; appeal by plaintiff. Heard in this court at the May term, 1899.

Trespass, for taking personal property. Trial in the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1899.

<p>1. Bailments—For the Benefit of Both Parties—Care Required.— Where a mare is left with the owner of a stallion for the purpose of breeding her, and incidentally of keeping her in the pasture of the owner of the stallion, the latter does not, in the absence of a special contract, become an insurer of her safety from accidents, but is only bound to exercise reasonable care and diligence for her safety.</p> <p>2. Same—Reasonable Care Defined.—The reasonable care required in cases of property is such care as a reasonably prudent man would exercise toward the safety of similar property under similar circumstances.</p> <p>3. Same—Special Contracts a Question of Fact.—The question as to whether there was a special contract between the parties for the care of the property, and if not, whether ordinary care for its safety was exercised by the bailee, are questions of fact for the jury.</p>

Trial of tlie Rights of Property.—In the County Court of Putnam County; the Hon. John MoNabb, Judge, presiding. Finding and judgment for claimant; appeal by defendant. Heard in this court at the May term, 1899.

Action in Case, for injuries caused by chemicals. Trial in the Circuit Court of Henry County; the Hon. William H. Gest, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1899.

Quo Warranto, to test the validity of a license to keep a dram-shop. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the May term, 1899.

<p>Appeal, from the Circuit Court of Peoria County; the Hon. Leslie D. Poterbauch, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Assumpsit, for contribution. Appeal from the Circuit Court of Iroquois County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Foreclosure.—Appeal from the Circuit Court of Rock Island County; the Hon, William H. Gest, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Bill to Redeem—Necessary Averments.,—A bill by a judgment creditor to redeem premises from a foreclosure sale should aver how or in what manner he became a judgment creditor, for what amount, in what court, and show that he is the owner of the equity of redemption.</p>

Action in Case, for personal injuries. Trial in the Circuit Court of Lee County; the Hon. John D. Crabtree, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiff. Heard in this court at the May term, 1899.

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Bents—Pass by Assignment of the Lease.—The legal title to rents to accrue passes by the assignment of the lease, and the lessor can not be reinvested therewith by a mere oral agreement between him and the assignee, or by a mere redelivery of the manual possession of the lease.</p> <p>2. Attornment—Unnecessary Under the Statute.—An attornment is unnecessary under Section 14 of Chapter 80, B. S., entitled “ Landlord and Tenant ” (Hurd’s Statutes 1809, 1093).</p> <p>3. Pleadings —Payment of Rent to an Assignee.—In an action for rent by a lessor, a plea of payment of rent by the tenant to the assignee of the lessor, which does not aver that the rent sued for accrued after the assignment of the lease, is bad on demurrer.</p> <p>4. Líense—Assignment of the Term Does Not Affect the Reversion.— Where the assignment of a lease by the lessor is only of the term, the rights of the assignee do not extend beyond the term. The reversion is not assigned, and the assignee has no right to a return of the premises. The right of action for breach of the covenant to return in good condition remains in the owner of the reversion.</p>

<p>Proceedings to Open a Higliway.—Appeal from the Circuit Court of Knox County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Boards ojt Education—Power to Adopt Rules.—Boards of education have the right to adopt reasonable rules in regard to the admission of children over six years of age, which may operate to prevent such children from entering school'immediately after arriving at the age of six years.</p> <p>2. Same—Rules Must be Reasonable.—In carrying the law into effect, the board may prescribe rules for the government of the schools and enforce them, but such rules must be reasonable, and calculated to promote the objects of the law in conferring the right of an education upon all children of legal age, free of charge.</p> <p>3. Same—Right of the Child to be Taught.—The law confers upon all children of proper age the right to be taught the enumerated branches, and any rule which, by its enforcement, tends to hinder or deprive the child of this right can not be sustained. All the rules must be adapted to the promotion and accomplishment of this great paramount object of the law.</p> <p>4. Sam®—What is Not a Reasonable Rule.—A rule prohibiting children, who have just arrived at school age, from entering the schools at any time except during the first month of the fall and spring terms is not reasonable, or calculated to promote the objects of the law.</p> <p>5. Practice— Where the Reason for Issuing a Mandamus Has Ceased to Exist.—Courts, in exercising their jurisdiction in mandamus, will not award the peremptory writ where the right sought to be enforced is or has become a mere abstract right, the enforcement of which, by reason of some change of circumstances since the commencement of the suit, can be of no substantial or practical benefit to the petitioner.</p>

<p>1. Contracts—Rule of Construction.—Courts, in construing contracts, will place themselves as nearly as possible in the position occupied by the parties when the contract was made, for the purpose of ascertaining what was meant by what was said.</p>

Bill to Subject Beal Estate to the Payment of Debts.—Trial in the Circuit Court of Peoria County; the Hon. Leslie D. Puterbatjgh, Judge, presiding. Decree for defendants; appeal by complainants. Heard in this court at the May term, 1899.

Assumpsit, on a policy of insurance. Trial in the Circuit Court of Rock Island County; the Hon. William H. G-est, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1899.

<p>Appeal, from the Circuit Court of Peoria County; the Hon.'Leslie D. Puterbauqh, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Action in Case.—Damages to crops by overflow of water. Appeal from the Circuit Court of Will County: the Hon. Robert W, Hilschbr, Judge, presiding. Heard in this court at the May term, 1899.</p>

Trespass, to personal property. Trial in the Circuit Court of Peoria County, on appeal from a justice of the peace; the Hon. Nicholas E. Worthington, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1899.

<p>1. Railroads—Flagman at Crossings—Bes Gestae.—In actions for personal injuries, it is proper to show the exact condition of things at the crossing when the injury occurred, including the fact that no flagman was stationed there; not to establish negligence in not keeping a flagman, but to enable the jury to determine what precautions due care required of the trainmen when backing a train upon the crossing.</p>

<p>Assumpsit, for labor, etc. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Action, in Case.—Death from negligence. Appeal from the Circuit Court of Iroquois County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Action ill Case, for personal injuries. Error to the Circuit Court of Henry County; the Hon. John C. Carver, Judge, presiding. Heard in this court at the May term, 1899.</p>

Assumpsit,’on a policy of life insurance. Trial in the Circuit Court of Winnebago County; the Hon. Charles E. Fuller, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1899.

Action, ill Case, for personal injuries. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the May term, 1899.

<p>1. Evidence—Statements of Account—When Not Proper.—Statements of account appearing to be purely an afterthought and made up simply for use upon the trial, not coming within any rule of evidence permitting the use of memoranda by witnesses, are not admissible as evidence.</p>

Assumpsit, for money paid. Trial in the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1899.

<p>Assumpsit, on a contract of guaranty. Error to the Circuit Court of He Kalb County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Limitations—Payments by One Joint "Debtor.—One joint debtor can not, by a partial payment made without knowledge, assent, or subsequent ratification of the other, bind him so as to authorize the inference of a new promise on the part of the latter and avoid the .effect of the statute of limitations.</p> <p>2. Same—Payments by One Joint Debtor with the Acquiescence of the Other.—When payments are made from time to time by one joint debtor with the knowledge, consent or ratification of the other, the running of the statute is arrested as t& both the joint-debtors.</p>

<p>Assumpsit, for commissions. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Action in Case-—Death from negligent act. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the May term. 1899.</p>

Action in Case, to recover damages for appropriating water. Appeal from the Circuit Court of Kane County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the May term, 1899.

<p>1. Equity Practice—Cross-bill, When Not Necessary.—A formal cross-bill is not necessary to enable a defendant to obtain payment of a claim due him and arising out of the subject-matter in litigation.</p> <p>2. Same—Answer Not to be Treated as a Cross-bill.—A mere answer cannot be treated as a cross-bill in equity by simply requesting that it beso treated, even if it sets up some affirmative right in the defendant.</p> <p>8. Same—When a Cause Should Be Referred to a Master, for an Accounting.—The court discusses the question as to when a cause must go to a master for an accounting.</p> <p>4. Same— When Not Error to Refuse Relief Under a Cross-bill.— It is not error to refuse relief under a cross-bill, if a party necessary to such relief, though a party to the original bill, is not made a party to the cross-bill.</p> <p>5. Same—What is to be Considered as an Abandonment of a Cross-bill.—Where an answer asks that it be taken as a cross-bill, but does not pray for an answer to such cross-bill, and no rule is entered to answer it as a cross-bill, it is abandoned as a cross-bill.</p> <p>6. Same—When a Trustee is Entitled to Compensation as an Attorney.—Under a contract with an attorney making him a trustee and authorizing him to deduct from the proceeds of intended litigation, the reasonable fees thereof, if the trustee, with the assent of the parties, conducts the litigation as their attorney, he will be entitled to deduct from the proceeds reasonable compensation for his legal services.</p> <p>7. Limitations—No Application to Trusts.—The statute of limitations has no application to a case involving a direet trust between the cestui gue trust and the trustee, cognizable only in a court of equity.</p>

Assumpsit, upon a written stipulation of the facts. Trial in the Circuit Court of Putnam County; the Hon. Thomas M. Shaw, Judge, presiding. Finding and judgment for defendant; appeal by plaintiff. Heard in this Court at the May term, 1899.

<p>1. Checks—As Assignments of Funds in Bajih—Garnishment.—A check drawn upon a bank by a depositor operates as an assignment of the amount stated, to the payee thereof, not only of funds then in bank, but also of funds of the drawer received thereafter. If at the time the checks are presented for payment the drawer has funds in the bank to meet them, the holders become entitled to payment, and a subsequent garnishment will not affect such right.</p> <p>2. Garnishment—With Notice of a Previous Assignment by Chech.— If a garnishee has notice of the previous assignment of the funds in his hands by check After he is served with process and before he answers or pays out the funds or is subjected to any other liability on account thereof, the assignment by check is protected as against the garnishment.</p> <p>8. . Same—Status of the Garnisheeing Creditor. —A garnisheeing creditor stands in the shoes of his debtor, whose name he must use in the suit, and to whose legal rights as they existed -at the time garnishee process was served, he is confined.</p> <p>4. Same—Effect of Drawing a Chech.—A person may draw a check in the reasonable expectation of having funds in bank to meet it when presented, and by doing so impliedly contracts with the drawee that funds shall be there to meet it when presented.</p> <p>5. Banks and Banking—Rule as to Checks.—The rule is, that as to the bank on which a check is drawn, there is no appropriation of the fund until the check is presented for payment. Checks actually drawn before garnishee summons is served, though not presented until afterward, are entitled to priority of payment out of the fund on hand when the garnishee summons was served, although the bank had then no knowledge or notice of the checks.</p> <p>6. Same—Where a Check Exceeds the Amount onDeposit.—A bank is not obliged to make a partial payment upon a check exceeding the fund in bank subject to check, and is entitled to take up the check as evidence for its payment.</p> <p>7. Notice—Of Holding, etc., Not a Presentation for Payment.— Written notice and demand with copy of check by the holder can not be treated as a presentation for payment.</p>

<p>1. Sureties—When Not to be Released by the Extension of the Time of Payment.—Where the sureties upon a promissory note contract to be bound by an extension of the time of payment, made with the principal debtor without their knowledge, to have such effect the extension must be made upon a sufficient consideration, and of such a character that all parties to the contract will be equally legally bound.</p> <p>2. Propositions of Law—Must be Rased upon Evidence.—Where there is no evidence in the case upon which to base a proposition of law, it is properly refused.</p>

<p>1. Preference—When the First Execution is Set Aside. —Where a later creditor files a bill and gets the first execution set aside, the next execution thereof, if levied before equity acquired jurisdiction, will be paid in its proper order. Legal rights and preferences, which are acquired before equity takes jurisdiction, will be respected in the distribution of assets.</p> <p>2. Same—Bill in Aid of Execution.—A bill filed in aid of an execution outstanding in the hands of the sheriff does not create an equitable lien as against prior valid execution liens which have previously attached to the same property. In such cases the complainant must finally get his payment by virtue of his execution, and can only get what his execution will, in its' due legal order, bring him.</p> <p>3. Partnership—The Bight to Have the Firm Property Applied to Firm Debts.—The right of a firm creditor to subject the firm property to the payment of his debt in equity, to the exclusion of the creditor of an individual partner, results solely from the right of the other partner to have the partnership assets applied to the payment of the partnership debts.</p> <p>4. Same—Waiver of the Bight to Have Firm Assets Applied in Payment of Firm Debts.—A partner may waive his right to have the firm property applied to the payment of the partnership liabilities. When he does so, the equity of the creditor is at an end.</p> <p>5. Injunction—When Not Necessary as Against a Sheriff.—An injunction is not necessary against á sheriff who has proceeds of executions in his hands for distribution to different persons. A mere notice to him not to pay out the proceeds till the determination of the question is sufficient.</p>

<p>Garnishment.—Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Putekbaugh, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1: Ordinary Care—Must Be Shown.—Where a plaintiff, suing for personal injuries, fails to show by a preponderance of the evidence, that he was at the time of the alleged accident in the exercise of ordinary care for his own safety, he is not entitled to recover.</p>

<p>1. Corporations—Defacto.—Where it appears that there has been an honest attempt to organize a corporation authorized by the laws of the State, and the necessary steps to perfect such organization taken as required by'the statute, except that the final certificate has not been recorded, but upon thé issuing of such certificate by the Secretary of State, it as a corporation, elects officers and proceeds to the transaction of business as a corporation, and continues to act as such for a period of more than five years, it becomes a corporation defacto.</p> <p>3. Same—Existence of a Corporation Can Not be Questioned, Collaterally.—The legal existence of a corporation can not be questioned in a collateral proceeding.</p>

<p>Assumpsit, for physician’s services. Appeal from the Circuit Court of Iroquois County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Payments—Application of.—A debtor owing his creditor on different past due accounts, may direct upon which account any payment he makes shall be applied; and if he fails to direct such application, the creditor may apply the payment to such past-due account as ■will be most advantageous to himself. If neither party makes the application, the law will - apply it as justice and the equity of the case may require.</p> <p>2. Same—When the Court Will Make the Application.—When the money given in payment arises from some property or fund, the court will apply it to the discharge or reduction of an indebtedness resting against such property or fund.</p>

Assumpsit, for the emoluments of an office. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the May term, 1899.

Assumpsit, on a written contract. Trial in the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the October term, 1899.

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 by direction of the court; error by plaintiff. Heard in the Branch Appellate Court at the October term, 1898.

<p>Action in Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Street Railways—Rights of Private Citizens.—The rights of street railway companies and of private citizens in the public highways are, in law, mutual. Their duties and obligations are reciprocal. Neither has the right, unreasonably or unnecessarily, to obstruct or interfere with the use of the street by the other in a proper manner.</p> <p>2. Same—Care Required—Obstruction of Streets.—Where a street car company obstructs the portion of a street outside of its tracks by pushing snow from that part of the street upon which its tracks are laid, and also obstructs one of its tracks with a repair wagon, so that there remains only the other track upon which citizens may drive, it is incumbent upon its employes to be more watchful and cautious to prevent accidents than in cases where the whole street is unobstructed and open to the use of persons driving along it.</p> <p>3. Instructions—Burden of Proof and Preponderance of the Evidence.—The court states in the opinion and approves an instruction upon the burden of proof and preponderance of the evidence.</p>

<p>1. Equitable Relief—In Foreclosures.—A court of equity haspower to appoint a receiver after sale and grant equitable relief where there are no express words in the mortgage giving a lien upon rents and profits derived from the property, but whether such relief will be granted depends upon the facts and circumstances existing at the time the application is made.</p> <p>2. Same—Appointment of a Receiver.—A receiver of the rents will not be appointed in a foreclosure proceeding, unless it be made to appear that the mortgaged premises are insufficient security for the debt, and the person liable personally is insolvent, or at least of very questionable responsibility.</p> <p>" 3. Homestead—Not Included in Purchase of Equity in Mortgaged Premises.—The purchase of an equity in mortgaged premises does not include a right of homestead, that right having been released by trust deed.</p>

<p>Proceedings Under the Voluntary Assignment Act.—Appeal from the County Court of Cook County; the Hon. O. N. Carter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Practice—In Adjusting Partnership Matters.—In settling and adjusting partnership matters, it is not necessary to establish the existence of the partnership before ascertaining the location of the fund which is the subject; of the litigation, where the bill charges insolvency of the partner, and that the money has been placed in the hands of third parties to prevent recovery.</p> <p>2. Partnership—A Single Adventure is Not.—The mere joinder in a single adventure, in which the parties are only jointly interested, does not constitute them copartners in such a sense as to oust a common law court of jurisdiction.</p> <p>3. Partners—Presumption as to Solicitors.—Where solicitors who are not partners are employed in the same business, by the same clients, the prima facie presumption of law is that they are partners as to that particular case.</p> <p>4. Appellate Court Practice—Correcting Matters of Form.—It is the duty of the Appellate Court, under the statute (R. S., Ch. 7, Secs. 2, 3), to rectify and amend any defects or imperfections in mere matters of form so that the judgment shall not be reversed or annulled.</p>

<p>1. Checks'—As Assignments of Funds on Deposit.—A. check drawn by a depositor upon a bank in which he has funds sufficient for its payment is an assignment from the drawer to the holder of the check-of so much of the fund on deposit. Its presentation for payment fixes the rights of the parties, and the bank has no right thereafter to pay other checks or demands in preference to such check, and a transfer of such check carries with it the title of the amount named therein to each successive holder.</p> <p>2. Cashier’s Check—As Evidence of Indebtedness—Preferences.— A cashier’s check, payable to the order of a depositor for the amount of his funds on deposit, is merely evidence of an indebtedness of the bank to the depositor, and does not entitle the depositor to any preference over other creditors of the bank at the hands of a receiver.</p>

Action in Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in the Branch Appellate Court at the October term, 1898.

<p>1. Negligence—Bars a Recovery.— If an accident is occasioned by negligence on the part of the plaintiff he is not entitled to recover, even though the defendants were also guilty of negligence.</p> <p>3. Ordinary Care—A Question of Fact.—The question of proper care on the part of the plaintiff is one of fact for the jury, and if there is evidence to sustain their finding, it will not be disturbed.</p> <p>3. Instructions—Justifying Reversal and New Trial.—To justify a reversal and new trial, an instruction must be prejudicial.</p>

<p>Prosecution under Sec. 33, Chap. 91, R. S.—Appeal from the Criminal Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Assignment—Delivery is Essential.—An assignment of a judgment is not valid and enforceable as against third parties without a delivery of the assignment to the assignee, or to some one authorized by him to accept it.</p>

<p>1. Practice— Power of Court to Set Aside Its Orders and, Enter Others. —Where a ease is properly on the docket for the purpose of settling a bill of exceptions, and the term has not ended, the court has the power to set aside the orders which it has made during the term and enter others.</p> <p>2. Master and Servant—Employer Not Bound to Furnish Safest Machinery.—The employer is not bound to furnish for his workmen the safest machinery, nor to provide the best methods for its operation, in order to relieve himself from responsibility for accidents resulting from its use. If the machinery is of ordinary character, and such as can, with reasonable care, be used without danger to the employe, it is all that is required.</p> <p>3. Ordinary Care—In Providing Suitable and Safe Machinery.— The law imposes upon the employer only the obligation of using reasonable and ordinary care and diligence in providing suitable and safe machinery for the use of his employes.</p>

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. Heard in the Branch Appellate Court at the October term, 1898.

<p>Action in Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Certiorabi—Requisites of the Petition.—To sustain a writ of certiorari to remove a cause from a justice of the peace, the petition must show that the judgment was not the result of negligence on the part of the petitioner; that in his opinion it is unjust and erroneous, showing wherein the injustice and error consists; and that it was not in his power to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from doing so.</p> <p>2. Same—What is Not Sufficient.—The fact that the parties before the justice made an agreement not to appeal, and that the petitioner would have taken an appeal, as was his intention, had it not been for the agreement, is not sufficient to show that it was not in his power to take an appeal in the ordinary way.</p> <p>3. Same—Petitions for—Hoto Construed.—The- right to a writ of certiorari is controlled by the statute, and the petition is to be construed most strongly against the petitioner.</p>

Action in Case, for libel. Trial in the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Verdict and judgment for plaintiff. Heard in this court at the March term, 1899.

<p>Action in Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in this court at the March term, 1899.</p>

Bill for Belief.—Trial in the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Hearing and decree for complainants; appeal by defendants. Heard in the Branch Appellate Court at the October term, 1898.

<p>Appeal, from the Circuit Court of Cook County; the Hon. Elbrldge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Appeal, from the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

Assumpsit, on a beneficiary certificate. Trial in the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in the Branch Appellate Court at the October term, 1898.

<p>Replevin.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Debt, on a replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Creditor’s Bill.—Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>Foreclosure Proceedings.—Appeal from the Circuit Court of Cook County ; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Former Decisions — Distinct Fines. — Where two fines were imposed upon a party for contempt in the same proceedings, but not for the same act, and an appeal taken from each order imposing a fine, one of which appeals has been before and decided by the other division of this court (the records, briefs, argument, and questions of law being the same in both appeals), there is no reason why this court-should do more than to refer to the opinion of that division and adopt it as the opinion of this court. (Railton v. The People, 83 Ill. App. 396.)</p>

<p>Creditor’s Bill.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Construction of Statutes—A Buie.—It is a rule in the construction of statutes that one part is to be construed by another part of the same statute, and if any part of a statute is intricate, obscure or doubtful, the proper way to discover the intent is to consider the other parts of the act; for the words and meaning of one part of a statute frequently lead to the sense of another, and in the construction of one part of a statute every other part ought to be taken into consideration.</p> <p>2. Same—Construction of See. 5 of the Mechanics' IAen Law of1895.— Section 5 of the “ act to revise the law in relation to mechanics’ liens” approved June 26,1895 (Laws 1895, 226) must be construed with section 36 and other parts of the act, and so construing, the words, “nor to merchants and dealers in materials only,” in section 5, apply only to contractors who are merchants and dealers in materials, and not to subcontractors who are such merchants and dealers.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Voluntary Assignments—Fraud in Procuring the Assent of a Majority of Creditors to a Petition for a Discontinuance—Any scheme or device by which the unadministered estate of an insolvent debtor is disposed of, in procuring the assent of a majority of his creditors to the discontinuance of the proceedings, is a direct violation of the statute and a fraud upon the minority creditors.</p> <p>2. Same—Construction of the Statute.—The statute relating to voluntary assignments contemplates that all creditors of an insolvent debtor shall stand upon the same footing, and that the rights of all the creditors, as they existed at the time of the assignment are to be restored when the proceedings are discontinued, except in so far as the insolvent estate has been administered and disposed of by the County Court.</p> <p>3. Same—Power of the Court to Discontinue the Proceedings.-—The County Court has power to discontinue proceedings, under the act relating to voluntary assignments, upon the petition and assent of a majority in number and amount of the creditors petitioning for such discontinuance, provided there is no fraud connected with the procuring of such assent. ^</p> <p>4. Same—Effect of an Order of Discontinuance. —By an order of discontinuance entered in the County Court, under this statute, an insolvent assignor is reinvested with the title and possession of his property as fully and to the same extent as before the assignment, and each creditor is in a position to establish his claim at law to the same extent as if no assignment had been made.</p>

<p>1. Appeals—From Interlocutory Orders.—In appealing from an interlocutory order appointing a receiver no order of the court allowing an appeal is necessary, under the provisions of the statutes.</p> <p>2. Notice—Of Application for the Appointment of a Receiver— Harmless Error.—Under the circumstances of this case notice should have been given of the application for the appointment of a receiver, but as the appellant has suffered no prejudice by reason of the lack of such notice the error is without prejudice and insufficient to reverse.</p> <p>3. Receiver—A Party to the Suit Not Necessarily Incompetent.— Where the only relation of a person to the subject-matter of the litigation arises from the fact that he was previously appointed agent, by the voluntary act of all the parties, to take charge of and manage the property involved, and for that reason made a party to the suit, does not render him an improper person to be appointed receiver.</p> <p>4. Same—Parties to Suits Incompetent.—There are decisions in this State, and authorities elsewhere, that in some instances, and notably in receiverships of copartnership "property, an interested party may, with propriety, be appointed receiver.</p> <p>5. Same—Parties in Interest.—Where the parties interested in the property have, before the litigation arose, voluntarily agreed upon a person to act as agent for them all, it has been held that upon litigation arising between such parties as to such property, the person so acting as agent is a fit and proper person for appointment of receiver.</p> <p>6. Same—A General Rule.—The order appointing a receiver is largely discretionary with the court, especially so in respect to the fitness of the person appointed, and such an order will not be disturbed upon review, upon .the ground that the person appointed is an unfit person unless some objection appears which is overwhelming in propriety or fatal upon principle.</p>

<p>1. Master and Servant—Notice of Defective Machinery.—The master is not to be held liable for defects and dangers of which the servant is fully informed, but the servant is authorized to rely upon the acts of the master in this respect, and is under no primary obligation to investigate the fitness and safety of the machinery, in the absence of notice that there is something wrong in it.</p> <p>2. Same—Actual Notice Not Necessary.—Actual notice of a defect is not necessary, it being sufficient that the master might have been informed by the use of such diligence as the law imposes upon him; but when he did not know and could not have informed himself of the defect he can not be held responsible.</p> <p>3. Same—Efforts to Put Machinery in Order, When Futile.—It, is not enough when a machine is dangerously defective, and known to be so, to make a futile effort to put it in order and then leave it to itself.</p>

<p>1. Promissory Notes—Signatures of Mahers, When Descriptions Personaruni.—In an action on a promissory note signed as follows—“U, S. Desk Manufacturing Co., Wm. Lumiey, Sec’y,” it is proper to instruct the jury that the presumption of law i.; that the note is the note both of the U. S. Desk Manufacturing Company and of Wm. Lumiey, and that unless such presumption is overcome by the evidence, the verdict must be in favor of the plaintiff and against both of the defendants in this case.</p> <p>3. Signatures—Deseriplio Personae.—In this State the rule is that adding to the signature “ Sec’y,” is to be regarded as descriptio personae merely.</p>

<p>1. Injunctions—Pending Appeals.—Where an appeal was taken from a restraining order of the trial court to the Appellate Court, and the order fixing the amount of the appeal bond provides that the restraining decree be stayed “during the pendency of this appeal,” if the decree is affirmed in the Appellate Court, and an appeal is taken to the Supreme Court, the staying order is not in force pending the appeal to the Supreme Court.</p>

<p>1. Justices of the Peace—Of the City of Chicago.—Justices of the peace in the city of Chicago are appointed by the governor, by and with the advice and consent of the Senate, upon the recommendation of a majority of the judges of the Circuit, Superior and County Courts in and for such districts as are provided by law.</p> <p>2. Same—Duty of the Judges, etc.—It is the duty of such judges, a majority concurring therein, to recommend to the governor on or before the first day of June in the year of our Lord, 1895, and every four years thereafter, among other persons to fill the offices of justice of the peace in the different towns of Chicago, five competent persons to fill the office of justice of the peace in the town of Lake View, and the governor shall nominate the persons thus recommended, and by and with the advice and consent of the Senate (a majority of the senators elected concurring by yeas and nays) appoint them to be justices of the peace in and for said towns respectively.</p> <p>3. Same—In Case the ■Governor or Senate Rejects, Duty of the Judges.—In case the governor rejects any person recommended, or the Senate refuses to confirm any person nominated, the governor shall give notice of such rejection or refusal to the said judges, who shall, within ten days after the receiving of such notice, recommend some other fit and competent person for such appointment.</p> <p>4. Same—Qualifications of Persons Recommended. —Such persons so recommended shall be electors in the town in and for which they are to be appointed as such justices of the peace.</p> <p>5. Same—Commission—Term.—Justices of the peace so appointed shall be commissioned by the governor and hold then- office four years, and until their successors have been commissioned and qualified, and shall have the same qualifications, jurisdiction, power and authority, and be subject to the same liabilities, execute bonds and be sworn in and governed by the same rules and regulations as justices of the peace who are elected.</p> <p>, 6. Same—Authority to Recommend a Successor for any Particular 0,[fice of Justice.—The judges, in recommending persons to fill the offices of justices of the peace, have power to make recommendations as to succession as a necessary part of the duty of the judges.</p>

Assumpsit, for money paid, etc.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the March term, 1899.

<p>1. Promissory Notes— Payments to Unauthorized Persons.—A person who makes payments upon, a promissory note to a person representing himself to be and. whom he believed to be the agent of the owner and holder of such note, without requiring him to produce the note, and being informed, by the receipt for the payment made, that the note was at the time in the possession of the owner, makes "such payments at his peril.</p> <p>2. Same—Where a Note is Made Payable at a Particular Place.— The mere fact that a note is marie payable at a particular place does not relieve one who pays it at that place from being required to pay it again if the note is not there.</p> <p>3. Same—Equitable Assignments.—An indorsement of a promissory note, as follows—“ Pay to the order of Thomas Clark. Patrick McNamara, per P. W. Snowhook,” taken together with the delivery of the note and trust deed securing it, and the payment therefor by him, and his subsequent continued possession of the same, amounts clearly to an equitable assignment thereof to him, and entitles him to maintain a bill to foreclose the trust deed, and he can not be required to prove either the execution of the note or its assignment to him, in the absence of any issue raised by the pleadings concerning such assignment and execution.</p> <p>4. Parties—Assignors of Notes and Trust Deeds.—In a proceeding to foreclose a trust deed, by the assignee of the note and trust deed, the assignor is not a necessary party.</p>

<p>1. Trust Deeds—Rights of Solders of Interest Notes Matured.—The holder of an interest coupon note due is not required to wait until the other notes secured by the trust deed are due before he takes steps to enforce it by foreclosure.</p> <p>3. Same—Decree on Default in Payment of One of the Coupon Notes. —Where a suit in foreclosure is prosecuted for the non-payment of one in a series of interest notes it is proper to direct, by the decree, that the sale of the premises be made subject to the continuing lien of the trust deed, as security for the remaining interest notes.</p>

<p>1. Instructions—Not to Assume Facts.—In an action of trespass for assault and battery, where the evidence is close and conflicting, an instruction which assumes as a fact that violence was used is erroneous, as assuming the pivotal fact in issue, and in such respect is a clear invasion of the province of the jury.</p> <p>2. Trespass—Vi et armis—Violence Defined.—The word violence has, for one of its meanings, an unjust or unwarranted exertion of power.</p>

<p>1. Practice—Recovery Under the Common Counts.—When the terms of a special contract have been so far performed that nothing remains but a mere debt or duty to pay money, the amount due may be recovered under a general count.</p> <p>2. Same—Recovery—Indebitatus Assumpsit.—Where a contract has been fully executed on the part of the plaintiff, and nothing remains to be done under it but the payment of money, which payment it is the duty, under the contract, of the defendant to make, the plaintiff need not declare specially, and may recover under a count in indebitatus assumpsit.</p> <p>3. Common Counts—Recovery Under.—Where the contract has been performed and nothing remains to be done but to pay the amount due under it, a recovery may be had under the common counts.</p>

Replevin.—Trial in the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Verdict for defendant by direction of the court; appeal by plaintiff. Heard in the Branch Appellate Court at the October term, 1898.

<p>1. Practice—Motion for New Trial if in Writing.—It a party moving for a new trial does so in writing, he should file his points in writing,particularly specifying the grounds of such motion. (Rev. Stat., Ch. 110, Sec. 57.) Where this is not done, the court is not advised as to any alleged mistakes or error claimed to exist.</p>

Trespass, quare clausum fregit, and de bonis asportatis. Trial in the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in the Branch Appellate Court at the October term, 1898.

<p>Bill for Accounting.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the March term, 1899.</p>

Debt, upon an appeal bond. Trial in the Circuit Court of Cook County, on appeal from a justice of the peace; the Hon. Elbridge Hanecy, Judge, presiding. Judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1899.

<p>1. Mortgages—When Absolute Deeds Are.— Every deed conveying real estate, absolute in form, but appearing to have been intended as a security in the nature of a mortgage, is to be considered as a mortgage. (R. S. Ch. 95, Sec. 13.)</p> <p>3. Same—When Deeds Will be Held to be Mortgages.—Where it clearly appears from the evidence that the parties to a deed, absolute in form, have intended that it should operate as a mortgage only, to secure a debt, the courts should hold it to be in effect a mortgage.</p> <p>8. Deeds—Construction of.—A deed absolute in its terms should not be given a different effect, unless the evidence to warrant it, is clear and satisfactory.</p> <p>4. Same—Inadequacy of Consideration.—Inadequacy of price is not alone good for holding a deed to be a mortgage. But where no consideration whatever moves to the grantor, except money advanced to be expended upon the land, it is a fact tending very strongly to show that there was no sale.</p> <p>5. Question of Fact— Whether a Deed or Mortgage.—The question as to whether an instrument is a deed or mortgage is one of fact, to be' determined from the evidence in the case.</p> <p>6. Evidence—Whether a Deed or a Mortgage.— The facts that negotiations for a loan were pending when the deed was made, and that the grantee retained possession of the premises, and of inadequacy of consideration, are matters to be considered in determining the question as to whether an instrument is a deed or a mortgage.</p> <p>7. Equity—The Question in Cases of Doubt. —In case of doubt existing from all the surrounding circumstances, a court of equity will lean to the holding that it is a mortgage rather than a sale.</p>

<p>1. Verdicts—Against the Weight of the Evidence—Unsupported Testimony of the Plaintiff.—The unsupported testimony of a plaintiff will not suffice to sustain a verdict, where such testimony is contradicted in its material parts by a witness for the defendant, and such witness is corroborated by other credible evidence.</p> <p>2. Same—Effect of All the Decisions.—Where the plaintiff only affirms under oath, and the defendant denies under oath the existence of the necessary fact, and the latter is corroborated by another witness, or other witnesses who are credible, then, as a matter of fact, there can not be said to be a preponderance of the evidence in support of the plaintiff’s affirmation.</p> <p>3. Attorneys — Talking with Witness in Preparing Cases.—The mere fact that attorneys at law, in preparing their cases for. trial, have talked with a witness, should not b.e presented to the jury as ground for discrediting such witness.</p>

<p>Assumpsit, on promises. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne; Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>Assumpsit, for rent. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court at the March term, 1899.</p>

Creditor’s Bill.—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the March term, 1899. Reversed and remanded with directions.

<p>1. Parties—In Foreclosure Suits.—The holder of the indebtedness secured is a proper party to file a bill to foreclose a trust deed.</p> <p>2. Solicitor’s Fees—In Foreclosure Suits.—Where a trust deed makes provision for a solicitor’s fee the object of the provision is to provide for such fees in case the grantor fails to pay the debt, and the liability remains the same, whether the bill to foreclose is filed in the name of the trustee or of the holder of the notes.</p> <p>3. Equity Practice—Foreclosure of Prior Mortgage on Cross-bill.— A junior mortgagee can not, by filing a bill to foreclose his mortgage, compel the foreclosure of a prior mortgage, but the holder of such mortgage may answer and file a cross-bill to foreclose the prior mortgage.</p> <p>4. Appellate Court Practice—Statutory Damages on Affirmance. — Where an appeal or writ of error is prosecuted only for delay, a motion to affirm the judgment or decree, with statutory damages, is proper.</p> <p>5. Same—Statutory Provisions.—Section 07, Chapter 37, R. S., provides that the process, practice and pleadings in the Appellate Court shall be the same as is prescribed, or which may hereafter be prescribed, for the Supreme Court, so far as applicable.</p>

<p>Bill to Foreclose a Trust Deed (three cases consolidated). Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

Bill in Equity.—Appeal from an order dismissing, on complainant’s motion, his bill entered by the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.

<p>1. Instructions—Technical, Not a Reversible Error.—To refuse to instruct the jury that in considering the evidence of the witnesses and determining what weight shall be attached to the same, they have the right to take into consideration whatever interest, if any appears from the evidence, such witness or witnesses may have in the result of the suit, is a technical but not a reversible error, where the point is not covered by other instructions given.</p>

<p>1. Practice—Filing Affidavits of Claims—Discretion.—To allow an affidavit of claim to be filed as a suit is about to be reached for trial, and which would materially change the issues to be tried, without good cause shown to the court, would be an improvident exercise of discretion.</p>

<p>Action in Case, for loss of baggage. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Ple ading- —Effect of a Plea Puis Darrien Continuance.—By filing the plea of release puis darrien the general issue previously filed is waived and no evidence on the merits can be submitted on either side.</p> <p>2. Same—Where a Plea Puis is Filed.—Where a plea puis darrien continuance is filed in an action in case for personal injuries, the plaintiff is not required to show an affirmative case of negligence, or to show due care on his part, and the defendant is precluded from presenting evidence as to the merits of his defense.</p> <p>3. Waiver—By Plea Puis Darrien Continuance.—By filing plea puis darrien continuance after the general issue has been pleaded the latter plea is waived, and is by operation of law stricken from the record and is no longer in the case.</p>

<p>Assumpsit, for money had, etc. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Petition for a Mechanic’s Lien.—Appeal from the Circuit Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Recovery—The Cause of Action Must Exist at the Commencement of the Suit.—The cause of action must exist at the time of the institution of the suit, and where the demand had not then matured, the defendant may avail himself of the objection at the trial under a plea of the general issue.</p> <p>2. Evidence—Under the General Issue—No Cause of Action at the Commencement of the Suit.—Evidence is competent under a plea of the general issue showing that, at the commencement of the suit, the money sued for was not due.</p> <p>3. Practice—What May Be Shown Under the General Issue.—-It is always proper to show, under the plea of non-assumpsit, that the plaintiff had no cause of action at the commencement of the suit.</p> <p>4. Verdicts—-Where Responsive to the Issues.—If, by looking into the record, the verdict can be seen to be responsive to the issues submitted, it will be sustained.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Decrees—Must Correspond to the Allegations of the Bill.—A decree which is contrary, both to the allegations of the bill and the evidence, can not be sustained.</p> <p>2. Sales—Necessary Elements.—To constitute a valid sale there must be a concurrence of the parties competent to contract; mutual assent; a thing, the absolute or personal property in which is transferred from the seller to the buyer, and a price in money paid or promised.</p>

<p>Covenant of a Lease under Seal.—Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding, Heard in this court at the March term, 1899.</p>

<p>1. Temporary Alimony—Does Not Depend on the Wife’s Property. —Whether temporary alimony should or not be allowed does not depend upon the wife’s ownership of non-income-producing property. If the income of the wife is insufficient to maintain her and enable her to carry on her suit, and that of the husband is ample, she should be allowed from his income such sum as will, when added to her own, enable her to live comfortably, pending the litigation, in the station of life to which her husband has accustomed her.</p> <p>2. Same—Wife’s Misconduct and Temporary Alimony.—In fixing the amount of alimony the court may take into consideration the fact of the wife’s misconduct, but that a less sum should be allowed her on that account, even when her misconduct has contributed to the separation of the parties, has no application to a motion for temporary alimony and suit money.</p> <p>3. Same—Court Will Not Look into the Merits on the Hearing of a Motion for Temporary Alimony. —The court will not look into the merits on a motion for temporary alimony, but will only investigate sufficiently to determine whether the complainant’s bill is exhibited in good faith. Whether the complainant has, in fact, a meritorious case, or whether the truth in respect to the issues is on her side, can not be determined until the proof shall have been put in and a hearing had.</p> <p>4. Same—Besting in the Discretion of the Court.—Whether temporary alimony should be allowed, and if so, how much, are questions resting in the judicial discretion of the court, in view of the conditions and circumstances of each case, and an abuse of such discretion is necessarily the subject of review. Unless, however, there is clearly an abuse of the discretion, the decree will not ordinarily be disturbed on appeal.</p>

<p>1. Landlord and Tenant—Monthly Rent, When Rue.—Where there is no agreement that monthly rent shall be paid in advance, it is not due until the end of the month.</p> <p>2. Distress eor Rent—Not Rue.—Proceedings by distress for rent do not lie unless the rent is due.</p>

<p>1. Verdicts—Of Guilty in Replevin.—A verdict in replevin finding the defendant guilty and assessing the plaintiff’s damages is equivalent to a finding of the property in the plaintiff.</p> <p>2. Appellate Court Practice—Insufficient Abstracts.—An abstract in the following language—“ As there is no point made on any of the evidence other than that abstracted or the rulings of the court in admitting or excluding evidence, and as the only error assigned in this court is raised on the record and the pleadings, for the purpose of saving the time of the court we do not further abstract the evidence,” is tantamount to an abandonment of a contention that the verdict is excessive in amount.</p> <p>3. Practice—Waiver of Irregularities in Verdict.—Where a verdict is returned by eleven only of the twelve jurors empaneled to try the issues, and no objection is made to it upon that ground, and counsel permit it to be received without objection at the time, or upon amotion for a new trial, it can not be raised for the first time in this court.</p>

<p>1. Instructions—Must Be Based, upon the Evidence.—Instructions must be predicated upon the evidence in the case.</p>

• Assumpsit, under the mechanic’s lien law. Appeal from the-Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1899.

<p>Action in Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore -Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Instructions—Authorizing Jury to Find Verdict upon Ground of Negligence Not Alleged in Declaration.—An instruction which authorizes the jury to find a verdict for the plaintiff upon a ground of negligence not alleged in the declaration constitutes manifest and reversible error.</p> <p>2. Becoyery—Must he Had upon Grounds Alleged in Declaration. —A recovery can not be had upon grounds other and distinct from those alleged. . •</p> <p>8. Pleading—General Allegations in Declaration Will Not Sustain. —A general allegation of duty and disregard thereof, without a statement of facts constituting the negligence or breach of duty, is the allegation of nothing more than a conclusion of law, which is not traversable, and will not sustain a pleading.</p> <p>4. Same—Declaration Mtist State Facts.—The declaration must state facts from which the law will raise the duty, and must also show wherein there has been a breach of it.</p> <p>5. Same—Duty of Plaintiff in Seeking Redress.—A plaintiff in seeking redress for an alleged injury should state the basis of his action in plain and intelligible form, agreeably to the established rules of pleading. By those rules the plaintiff is bound to show the duty, the breach, and in what it consists, and that his injury resulted as a consequence; It is only by observing such rules that the defendant can be apprised of what it is he is required to meet.</p>

<p>Action in Case, for personal injuries. Appeal from the Superior Court of Cook]County; the Hon. John Barton Payne, Judge presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Proceedings in Probate.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

Assumpsit, for medical services. Trial in the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Verdict and judgment for plaintiff; error by defendant. Heard in the Branch Appellate Court at the March term, 1899. 1

Action for Damages, for injuries. done to the plaintiff’s premises. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.

<p>1. Evidence—Bodies of Account Under the Statute.—The character of a.book, to be offered in evidence as an account book, is not changed by our statute, but only the character of the evidence is changed, which is necessary to its admission.</p>

<p>1. Insurance—Waiver of Proofs of Loss.—The insured submitted his proofs of loss to the agent of the company, and was informed that such proofs were all right, and was offered six hundred dollars in settlement, after which he went away, saying that he would submit the proposition to his wife, leaving the proofs of loss, to which no objection had been made, with the agent. Held, that the act of the agent was a waiver of the right to insist upon proofs, under ,the condition of the policy.</p>

<p>Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Voluntary Assignments—Scope of the Deed.—When a debtor reaches the point where he is ready and determined to yield the dominion of his property, and makes an assignment for the benefit of his creditors under the statute, the effect of such assignment is to convey and surrender all of his estate not exempt by the law to his assignee, for the benefit of all his creditors; and no matter in how many ways his performance of this intention may be carried out, the law will regard all his acts having for their object and effect the disposition of his estate, as parts of a single transaction.</p> <p>2. Assignee—Power to Avoid Fraudulent Conveyances.—An assignee can not, for the benefit of creditors, avoid a fraudulent conveyance made by the assignor before the general assignment. He is not the representative of the creditors, but the agent of the assignor for the distribution of the property assigned,</p> <p>3. Same—Powers Under the Statute.—Section 11 of the Voluntary Assignment Act makes it the duty of the assignee to sue for and recover in his own name as assignee “everything belonging or appertaining to said estate, real or personal.”</p> <p>4. Same—Rights of Creditors in Case of Neglect.—Upon the neglect or refusal of an assignee to take proper proceedings to protect the trust estate or reduce it to possession and gain its control, the right of the • creditors to come into court and protect their interests can notbe denied.</p>

<p>1. False Imprisonment—Probable Cause for an Arrest.—The fact that a person has counterfeit coin in his possession, with intention to utter or pass the same, or to permit, cause or procure the same to be uttered or passed, with intention to defraud any person or body politic or corporate, knowing the same to be counterfeit, furnishes probable cause for his arrest.</p> <p>2. Master and Servant—Arrests by Servants—Scape of Authority. — It is not essential to the liability of the master that the servant should be authorized, either expressly or by implication, to do the very act for which the master is sought to be made liable.</p> <p>3. Same—The Subject Illustrated.—Where A, the owner of a wagon, employs B to drive it in his business, and while doing so B drives recklessly or carelessly, by reason whereof the wagon collides, with another vehicle, injuring it and some of its occupants, A is liable, not because he authorized B to drive recklessly or carelessly, which he did not, but because B was acting within the general scope of his authority, which was to drive the wagon in his employer’s business. Having authorized B to drive the wagon, he is as responsible for his negligent driving as if he himself had been driving and guilty of the negligence which caused the accident. In legal contemplation, he acted by B.</p> <p>4. Street Car Companies—Authority Over Passengers.—A street car company, as a common carrier of passengers, has power to expel from its trains persons who are disorderly to the inconvenience and annoyance of other passengers, they refusing to desist from such disorderly conduct, and persons who refuse to pay their fare.</p> <p>5. Same—Authority of Conductors.—A street car company can only exercise its "power over passengers by an agent, who is usually, if not uniformly, its conductor. It therefore authorizes the conductor to exercise such power, and in so doing he must act in accordance with his own judgment. If he removes a passenger from the car wrongfully, or in an unlawful manner, the company is responsible.</p>

<p>Error to the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Practice—Setting Aside Defaults.—A motion to set aside a default is addressed to the sound legal discretion of the court in which it is made, and unless there has been a palpable abuse of such discretion the Appellate Court will not interfere.</p> <p>2. Same—Where Defaults Will be Set Aside.—It is only where it is evident that the action of the court below has been unjust and oppressive, and has resulted in a substantial injury to the appellant, that it will be reversed on review.</p> <p>3. Defaults—Object to be Obtained in Setting Aside.—The object to be obtained in considering an application to vacate a default judgm'ent is justice—not justice in the abstract, but justice between the parties in the particular case, in view of all the circumstances.</p> <p>4. Same—Diligence to be Exercised.—Where a defaulted party has failed to exercise proper diligence, the default will not be set aside, although he has a good defense uporaAhe merits.</p> <p>5. Same—Lack of Diligence of Attorneys.—The negligence, or lack of diligence, by a party’s attorney, or of both himself and his attorney, will not avail him.</p> <p>6. Same—What Should Appear in Motions to Set Aside.—To invoke the exercise of this power of the court, three things must be made to appear, viz.: That the defaulted defendant has a meritorious defense to the plaintiff’s claim in whole or in part; that neither he nor his attorney were neglectful of their rights and duties in the particular case; and that some “ substantial injury” to him has resulted.</p> <p>7. Same—Construction of Affidavits on Motions.—In applications to set aside judgments entered by default or entered in ex parte proceedings, affidavits in support of such applications are to be construed most strongly against the party making them. It is not sufficient to state facts from which, if proved on a trial, a defense might be inferred.</p>

Assumpsit, on a policy of fire insurance. Trial in the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiffs. Heard in the Branch Appellate Court at the October term, 1899.

Assumpsit,.for the loss of an overcoat. Trial in the Superior Court of Cook County, on appeal from a justice of the peace; the Hon. Philip Stein, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in the Branch Appellate Court at the October term, 1898.

<p>Injunction.—Assessment of damages on dissolution. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Foreclosure of Trust. Deed. —Appeal from, the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>