Volume 86 — Illinois Appellate Court Reports

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

<p>1. Children oe Divorced Parents—Care and Custody.—The statute of this State, with regard to the care and custody of children of divorced persons, gives the court the power, when called upon to award such care and custody, to make such order as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just, and in the determination of such cases, the interests and welfare of the child are the supreme and controlling considerations with the court.</p> <p>3. Same—When the Mother Takes the Precedence.—An infant of tender years is generally left with the mother (if no objection to her is shown to exist), even when the father is without blame, merely because of his inability to bestow upon it that tender care which nature requires and which it is the peculiar province of the mother to supply, and this rule will apply with much force in cases of female children of a more advanced age.</p> <p>3. Same—Effect of Decrees upon the Custody of Children.—A decree awarding the custody of a child is res judicata, concluding the question. But it does not conclude the question for all time, since new facts may create new issues.</p> <p>4. Foreign Decrees—Status of Parent and Child.—The relation of parent and child is a status rightfully, like marriage, regulated by the State in which the parties are domiciled. The order of one State does not operate as an estoppel of all future inquiry in the courts of another State wherein the child has acquired a domicile.</p> <p>5. Same—Where a Foreign Decree is Void.—Where a decree is ex parte against a father who, with his child, was domiciled in another State, the decree for custody is without jurisdiction, and therefore void.</p>

Assumpsit, for goods sold and delivered. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.

<p>1. Verdicts—Conclusive on Questions of Fact.—It is for the jury to settle questions of fact, and a verdict is, as a general rule, conclusive.</p>

<p>Assumpsit, on a beneficiary association. 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>

<p>1. Master and Servant—Master's Liability for Negligent Acts of the Servant.—The master is not to be held to respond for the negligent acts of the servant, done outside the scope of the master’s business and the servant’s employment, and while the servant is pursuing his own affairs exclusively, even though facilities afforded to the servant by his relation to the master were used in committing the injury, if such facilities were not used with authority or consent of the master.</p> <p>S. Same—When the Servant Deviates from His Line of Employment. —If the negligent act be done by the servant while engaged directly or indirectly in the master’s business, responsibility of the master can not be avoided on the ground alone that the servant had chosen a method or a route less direct than he might have selected for the work. If the servant, in driving his master’s team on his master’s business, chooses an indirect route, or deviates from his direct route for purposes of his own, and is yet engaged in performing the master’s work in such indirect manner, the master may still be held liable.</p> <p>3. Negligence— When the Master is Not Liable.— In order to make the negligence the act of the servant alone there must be a turning away from the master’s service and an entering upon an affair which is the affair of the servant only.</p>

<p>Bill to Correct a Deed.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Master in Chancery—Findings Conclusive.—A master in chancery, seeing the witnesses, has better opportunities of determining the credibility of a witness than the Appellate Court. . He. can pass upon his manner of testifying, conduct upon the witness stand, apparent truthfulness, etc., which are matters incapable of review in this court.</p> <p>2. Witness—Effeet of Testimony, Inherently Improbable.—The testimony of an interested witness to facts inherently improbable, need not be accepted by court or jury, although such testimony is not contradicted by any other direct testimony in the case, and although the witness is not otherwise impeached.</p>

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

<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. Preferences—Obtained. Through the Acts of the Debtor.—Any preference obtained by the creditor, by or through the acts of the debtor, after the debtor has determined to yield dominion of his estate by making a general assignment for the benefit of creditors, is within the prohibition of the statute and void.</p> <p>2. Voluntary Assignments— What Acts Constitute.—All the acts of the debtor, performed with the intent and for the purpose of effecting a disposition of all his property for the benefit of his creditors, are to be regarded as a single transaction, each constituting part of the general assignment of his assets under the statute.</p> <p>3. Same—What Acts of the Debtor Are Within the Statute.—After a debtor has made up his mind to make an assignment of his property for the benefit of his creditors, all conveyances, transfers and other dispositions of his property or assets, made in view of his intended general assignment, whereby a preference is given, will be held to be within the prohibition of the statute and void, the same as though incorporated in the deed of assignment itself.</p> <p>4. Witnesses—W7ien Interested, and Statements Are Inherently Improbable.—The testimony of an interested witness to facts inherently improbable, need not be accepted by the court or jury, although such testimony is not contradicted by any other direct testimony in the case, and although the witness is not otherwise impeached.</p> <p>5. Same—How Contradicted.—A witness may be contradicted by the facts he states as completely as by direct adverse testimony, and there may be so many omissions in his accounts of particular transactions, or of his own conduct, as to discredit his whole story.</p> <p>6. Presumptions—Where the Hearing is Before the Court.—Where the hearing is before the court, it will be presumed that the court, in reaching its conclusion, rejected all incompetent and only considered competent evidence before it.</p>

<p>Attachment, intervening petitions, etc. Appeal from the Superior Court of Cook County; the Hon. George A. Trude, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

Trespass on the Case, for malicious prosecution, etc. 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>I. Voluntary Assignments—Consideration For.—The debts due to the creditors, and the acceptance of the trust to administer the estate for their benefit, are a sufficient consideration for an assignment.</p> <p>2. Same—How the Assignee Takes.—The assignee takes his title for the payment of the debts, subject to all equities, liens and incumbrances which existed against the property in the hands of the insolvent.</p> <p>8. Same—Prior to the Statute.-^The right and' power of a failing debtor to pass the title of his effects to an assignee remain as they did before the statute, but the power to control the 'distribution and beneficial employment of bis property upon a transfer of the title is essentially different. Then- the County Court had nothing whatever to do with the assignee or the effects in his hands as such assignee; now the effects of the assignor must in all cases be distributed ratably among his creditors, and any provisions in the deed of assignment directing otherwise will be inoperative and void.</p> <p>4. Same—As Affected by the Statute.—The statute restricts to some extent the common law right, but does not undertake to affect the validity of a common law assignment except as to preferences; nor does it undertake to control or direct its administration, when such assignment is made in a foreign jurisdiction. For all purposes except to the detriment of our own citizens, it is not regarded as contrary to the policy of our law to give such assignments effect here.</p> <p>5. Same—At Common Law.—Assignments for the payment of debts to creditors were valid at common law, and the right to make an assignment for the benefit of creditors, exists independently of the statute.</p> <p>6. Same—By Citizens of Other States.—A deed of assignment made by a citizen of another State, within such foreign jurisdiction, is subject to the claims of resident creditors when the property is located here.</p> <p>7. Same—Executed in Foreign States.— A voluntary assignment made abroad, inconsistent in substantial respects with our statute, should not be put in execution here, to the detriment of our citizens, but for all other purposes, if valid by the lex loci, it should be carried fully into effect.</p> <p>8. Common Law Assignments—Made in Foreign States.—A common law assignment for the benefit of creditors, made in a foreign State, will be presumed in this State to have been valid where made until the contrary appears. The burden is upon him who questions its validity in the State where it was made, to prove his contention.</p> <p>9. Corporations—Power to Malee Assignments.—Corporations,unless restricted by their charters or by general statutes, may make assignments for the benefit of creditors to the same extent that individuals may.</p>

<p>1. Receivers—Facts Justifying the Appointment.—The fact that the property is scant security for the debt; that the defendants personally liable are insolvent and unable to pay; that the rents, issues and profits are by the trust deed conveyed as part of the security; that appellant is in possession and collecting said rents and profits; and that complainant will suffer loss and damage unless a receiver is appointed,-are sufficient to justify the order appointing the receiver.</p> <p>3. Appellate Court Practice— When the Court Will Not Consider an Assignment of Error.—An assignment of error which applies to the refusal to vacate the order making an appointment of a receiver, which has been stricken from the record by order of this court, having been written there without leave after the transcript was here filed, will not be considered by this court.</p>

<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. Pleading—In Actions for Personal Injuries.—In an action to recover for personal injuries, the plaintiff must aver and prove (1) that the defendant was guilty of negligence (or of an omission of duty amounting to negligence), and (2) that the plaintiff exercised due care and caution for his own safety.</p> <p>2. Same—Defects in the Declaration for Personal Injuries.—If a declaration in an action for personal injuries omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure that defect.</p> <p>3. Presumptions—After Verdict.—The court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleadings, was duly proved at the trial. And such presumption must arise from the united effect of the verdict, and the issue upon which such verdict was given. On the other hand, the particular thing which is presumed to have been j>roved must always be such as can be implied from the allegations in the record, by fair and reasonable intendment; and on the other hand, a verdict for the party in whose favor such intendment is made is indispensably necessaiy.</p> <p>4. Verdicts— What is Aided By.—A verdict will aid a defective statement of title, but will never assist a statement of a defective title or cause of action.</p> <p>5. Appellate Court Practice—Sufficiency of the Declaration.—The question of whether the declaration discloses a cause of action is always a question open to consideration in a court of review, when it falls within any of the assignments of error.</p> <p>6. Practice—Disregarding Defective Counts.—If one or more of the counts in a declaration are faulty, the defendant may apply to the court to instruct the jury to disregard such faulty count or counts.</p> <p>7. Instructions—Disregarding Defective Counts.—Where there are defective counts in the declaration it is error in the court to refuse to instruct the jury to disregard them.</p> <p>8. Same—Where the Declaration Contains Defective Counts.—An instruction which informs the jury that the plaintiff must prove each and every material allegation in the declaration, or some count thereof, before he can recover, is erroneous when the declaration contains defective counts.^</p> <p>9. Amendments—After Verdicts Presenting New Issues.—It is not within the province of the trial court to allow an amendment, after verdict, which presents a new issue, to determine which involves the decision of a contested question of fact, and then to at once enter judgment thereon against the objection of the defendant, without submitting such contested question of fact to a jury.</p>

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of Cook County; the Hon. R. W. S. Wheatley, Judge, presiding. Heard in this Court at the March term, 1899.</p>

<p>Assumpsit, for a breach of a partnership agreement. 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. Trustee—Unlawful Release of Trust Deed—Notice.—A trustee can not lawfully release a trust deed for the benefit of his wife, unless the debt represented by it has been paid; and the fact of the uncanceled note, not yet matured, being in the possession of the payee, is sufficient to put mortgage creditors upon inquiry as to whether the note has been in fact paid.</p> <p>2. Same—Power to Dispose of Trust Property—Notice.—A trustee has no power to sell and dispose of trust property for his own use or at his own mere will. One who obtains it from him or through him, with actual or constructive notice of the trust, acquires no title, and it may be recovered, by suitable proceedings, for the benefit of the cestui que trust.</p> <p>3. Notice—What is Sufficient to Put a Purchaser upon Inquiry.— The fact that an executor applies estate assets in payment of his own debt is of itself a circumstance of suspicion, which ought to put a purchaser upon inquiry as to the propriety of the transaction.</p> <p>4. Same—Provisions of Promissory Notes.—Where a promissory note can not be read understandingly without seeing upon its face that it is connected with a trust, and is part of a trust fund, it is the duty of a party, before purchasing it, to make inquiry into the right of the trustee to dispose of it, and, failing to do so, he must suffer the consequences.</p>

<p>1. Corporation or Partnership—A Question of Fact.—As to whether a person is dealing with a partnership or a corporation is a question of fact which should be submitted to a jury for its determination.</p>

<p>Motion to Enter Satisfaction.—Appeal from the County Court of Cook County; the Hon. R. W. S. Wheatley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Freehold—When Not Involved.—Where the issues in a case do not question the right of a widow to claim, her dower, but relate only to the court’s action in refusing to sustain a plea in abatement, a freehold is not involved.</p> <p>2. Former Suit—Plea of, in Abatement.—A bill by the heirs of a deceased testator against the widow in her own right and as executrix, praying that her dower be assigned, that partition be made of the real estate, an accounting be taken of the rents, profits and income of the real estate, that the will be construed, and that the bequests and legacies be set apart in accordance with its terms, can not be pleaded in abatement to a bill subsequently filed by the widow praying that her dower in the real estate left by the testator be assigned and set off to her according to the statute, and that she be awarded damages suffered by its having been so far withheld.</p> <p>3. Dower—Assignment of, Not to be Indefinitely Delayed.—The right to assignment of dower is conferred by the statute, and can not be indefinitely delayed to await the process of another suit under control of adverse interests, involving matters of an entirely different nature, and in which the assignment of dower is only incidentally prayed.</p>

<p>1. Agency—Its Existence—How Established.—The existence of an agency may be established by the oral testimony of an employe of the principal, having knowledge of the fact.</p> <p>2. Same—Liability of a Purchaser After Notice.—Where a person purchases property in the possession of an agent, but before paying for the same is notified that the person of whom he is buying is only an agent, he will be liable to the principal for the same.</p> <p>8. Same—Payment by a Purchaser of Goods from an Agent.—It is immaterial to a purchaser of goods from an agent to whom he makes payment, and he can not be prejudiced when he has not contracted with reference to claims against the agent, and pays to one not the real owner, after he has been notified that the real owner makes a claim to the purchase price agreed to be paid by such purchaser.</p> <p>4. Instructions—Invading the Province of the Jury.—It is not error to refuse an instruction which tells the jury what weight it should give to certain evidence bearing on a question of fact in issue.</p>

<p>1. Master and Servant—Master Must Provide a Reasonably Safe Place for the Servant.—It is the duty of the master, or the foreman who represents him, to see that the place where he orders the servant to work is reasonably safe.</p> <p>3. Same—Servant Has a Right to Rely upon the Performance of the-Master’s Duty.—A servant has the right to rely upon the performance of the duty of the master to provide a reasonably safe place for his work, and is not required to make a critical and careful examination of his surroundings.</p> <p>3. Ordinary Care—A Question for the Jury.—It is a question for the jury to determine whether a master’s foreman has exercised reasonable and ordinary care to see that the place where he orders the servant to work is reasonably safe before he sends him there to work, and also whether the servant knows or should know the danger to which he is exposed.</p> <p>4. Practice—Variance Between the Declaration and Proof.—Where a plaintiff amends his declaration he avoids all question of variance if the defendant’s evidence supports the amended declaration.</p> <p>5. Tort Feasors—Joint Feasors Severally Liable.—In an action for a tort the plaintiff may sue any one or more of the joint tort feasors and may have a judgment against any one or any number of the persons so sued, who are shown to be guilty of the tort alleged.</p>

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

<p>1. Expert Witnesses—Reports Prepared by Professional Expert— Compensation.—A physician can not recover upon the basis of expert professional services for work which does not involve such services. In the absence of an express agreement as to compensation, he can only recover the fair value of the services actually rendered.</p> <p>3. Same—Claims for Extra Compensation.—An expert witness can not rest a claim to extra compensation upon the ground that his time is more valuable than the time of ordinary men.</p> <p>8. Same—Compensation of Physicians and Lawyers as.—A physician or lawyer can not sustain a claim for larger compensation than an ordinary man would be entitled to for the same services, upon the ground alone that as an expert in his profession, his time is more valuable than that of ordinary men. The service voluntarily rendered is not to be considered more valuable merely because of the greater value of the time of him who renders it, where no agreement is made beforehand as to the compensation to be paid.</p>

<p>1. Replevin—When it Lies.—Replevin can be maintained to recover property, taken under execution, where said property is not in the possession of and does not belong to the execution debtor.</p> <p>2. Execution—When Issued Within Twenty Days After Entering Judgment.—The statute forbids the issue of execution by a justice of the peace in a civil case until after the expiration of twenty days, unless the party applying for the same makes oath that he believes the debt will be lost unless execution is issued forthwith.</p> <p>3. Presumptions—As to Justices Requiring Oath Before Issuing Execution.—There are no presumptions in favor of a justice having required the oath as required by statute when issuing execution prematurely.</p>

<p>1. Bankruptcy—Vested Rights of Parties Not Extinguished by Proceedings in.—A pre-existing execution lien will not be divested upon the commencement of voluntary bankruptcy proceedings. The lien of an execution is just as valid as the lien of a mortgage; neither the property nor the lien is by such proceedings destroyed.</p> <p>2. Same—Filing a Petition of, Not a Compliance with the Provisions of the Statute Concerning Executions.—The filing of the petition in bankruptcy in the United States District Court can not be considered as a compliance with the positive provision of the statute that a schedule by the defendant in the execution must be delivered to the officer having the execution, or filed in the court where the writ is issued.</p>

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

<p>1. Waste—Action for, at Common Law.—At common law, an action for waste may be maintained by a reversioner or remainderman in fee, for life,' or for year?, provided the injury affects the reversion.</p> <p>2. Same—Defined.—Waste is an injury to property to the prejudice of the heir or of him in reversion or remainder, or, as expressed in Blackstone’s Commentaries, “to the disherison of him that hath the remainder or reversion in fee simple or fee tail.”</p> <p>8. Same—What is Necessary to Sustain Claim,-—To sustain a claim for waste it is essential that the act complained of shall be to the injury of the party complaining. ’ .</p> <p>4. Same—Can Not be Maintained by Mortgagee—Remedy in Case. —An action of waste can not be maintained by a mortgagee because he has only a contingent interest. His common law remedy, if any, is an action on the case.</p> <p>5. Injunction—When a Court of Chancery Will Not Interfere at Instance of Mortgagee.—If the security or contingent interest of a mortgagee will not be injured, or his security injuriously impaired by an act of spoliation which might constitute waste as against the rights of the owner of the fee, a court of chancery will not, at his instance, interfere by injunction.</p> <p>6. Words and Phrases—“ Impair the Security of the Mortgage.”— The term “ impair the security of the mortgage,” does not necessarily mean the same as impairing the value of the property mortgaged.</p>

<p>Indictment for Embezzlement.—Error to the Criminal Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Appellate Court Practice—Filing Supplemental Records.—An application for an extension of time within which to file a supplemental record should be made within the first two days of the term.</p> <p>2. Same—Damages on Dismissal of an Appeal.—Where a decree is not for the payment of money within the meaning of Sec. 73 of the Practice Act, statutory damages are not allowable.</p>

<p>1. Appellate Court Practice— When a Decree Will Be Affirmed. —When the record consists of a copy of the decree and appeal bond, with a supplemental transcript of an answer filed by the appellant, and his brief raises no question reviewable by this court, the decree appealed from will be affirmed.</p>

<p>I. Question or 'Fact—Breach of a Contract.—Whether a contract has been violated by the delivery of goods which were defective, and by reason of such defects, unmerchantable, is a question for the jury.</p>

<p>Mortgage Foreclosure.—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, 1899.</p>

<p>Bill to Foreclose a Chattel Mortgage.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the March term, 1899.</p>

Appeal and Error from and to the Circuit Court of Cook County (two cases consolidated); the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.

<p>1. Mortgages—What Constitutes, in Equity.—Where a purchaser of real estate delivers to his creditor his deed of the same and also executes a writing, under seal, stating in substance that he has borrowed a certain amount from him and delivered to him the deed, to be by him held in escrow, and not to be recorded till said amount should be repaid, within three years, binding himself, his heirs and assigns, so to do, such agreement, together with the warranty deed conveying the title of the premises for the purpose of securing the indebtedness, constitutes in equity a mortgage.</p> <p>2. Same—Assignable in Equity.—Such a mortgage is assignable in equity by indorsements on the written instrument.</p> <p>3. Same—What is a Release.—Where the owner of such mortgage and the debt secured by it, by a quit claim deed made by him, conveys all his interest as mortgagee in the real estate in question, such deed is in equity a release of his mortgage interest.</p> <p>4. Dower—A Release of an Inchoate Right.—A quit claim deed executed by the holder of a mortgage, for the purpose of releasing all his interest in the premises, is to be construed in the light of the evidence and the condition of the title at the time, and not only as a release of an inchoate right of dower.</p> <p>5. Deeds—Construction of, etc.—A deed is always to be construed, not only with reference to its words, but in the light of the circumstances existing at the time it was made, and the relations of the parties to the title.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Deed—May Be Shown to Be a Mortgage.—A deed absolute upon its face may be shown to be a mortgage by parol evidence, if such was the intention of the parties.</p> <p>2. Same—Where a Mortgage at Common Law.—At common law, a deed absolute in form could only be held a mortgage upon the ground of accident, fraud or mistake, but our statute permits such a deed to be held a mortgage upon another and different ground from that of fraud, accident or mistake; namely, the intention of the parties that it shall be merely a security.</p> <p>3. Action on the Case—Where the Proper Remedy.—The action on the case is based upon very general principles, and is designed to afford relief in all cases where one is injured by the wrongful act of another, and where no other remedy is provided. The injury may consist of the doing or omitting of some act contrary to the general obligation of the law, or some violation of a right or duty arising from the relationship of the parties.</p> <p>4. Same— When a Conveyance is Made Without Authority.—Where a conveyance is made without authority, by a trustee in whom the absolute title was apparently vested, to a third party without notice of the equities existing, and the owner of the equity is thereby injured, the court is inclined to the opinion that it was a wrongful act, for which an action in case may be maintained.</p>

Assumpsit for wages. Trial in the Circuit Court of Cook County; on appeal from a justice of the peace; the Hon. John C. Garver, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 18.99.

Assumpsit.—Trial in the County Court of Cook County, on appeal from a justice of the peace; the Hon. E. B. Gower, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1899.

<p>Assumpsit.—Appeal from the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Instructions—When Not Reversible Error.—The giving of an instruction which might have been worded with more technical accuracy, if the court can not say that the jury were misled by it, is not reversible error.</p> <p>3. Appellate Court Practice—Abstracts Must Contain Bonds Referred to in Instructions.—Where a bond referred to in an instruction is not set out in the abstract, the court can not pass upon an objection to the instruction.</p>

<p>Attachment for Contempt.—Appeal from the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Equity Practice—A Bill to Prevent a Multiplicity of Suits.— The court-holds that the suit at bar can not be maintained as a bill of peace or bill to prevent a multiplicity of suits, upon the facts alleged in the amended bill of complaint. (See copy of amended bill, post.)</p> <p>2. Set-off—Damages Resulting from a Breach of Warranty.— Damages, such as may result from a breach of a warranty of the quality of articles sold, may be set off in a suit for the purchase price of the articles, but not upon the ground of equitable set-off in a suit to-prevent a multiplicity of suits.</p>

Assumpsit, on an account stated. Trial in the County Court of Cook County, on appeal from a justice of the peace; the Hon. D. L. Jones, Judge, presiding. Heard in this court at the March term, 1899.

<p>Covenant.—Appeal from the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>Intervening Petition.—Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Appellate Court Practice—Matters Which Can Not Be Raised in this Court for the First Time.—The point that the trial court was without jurisdiction to try the case until jurisdiction was acquired of the person of one of the defendants, when the abstract fails to show that said person was a defendant in the court below, and no objection was made in that court, can not be raised for the first time in this court.</p> <p>2. Replevin Bond—Nominal Damages and Judgment for Costs.— Where the plaintiff in replevin dismisses his suit or suffers a nonsuit without a trial on the merits, he may show, in an action on the bond in mitigation of damages, that the property involved was in fact his property, and upon such showing being made, there can be recovery only for nominal damages.</p> <p>3. Replevin—Practice in.—The right to show, in an action on the bond, that the merits of the suit were not tried in the replevin suit, is given by statute. - (Hurd’s R. S., Ch. 119, Sec. 26.)</p>

<p>1. Negligence—When a Question for the Jury.—Where reasonable and fair-minded men might reach different conclusions, under all the circumstances shown in the evidence, the question as to whether defendant was guilty of negligence is one for the jury to decide.</p> <p>3. Same—Prima Facie Case—City Ordinances.—A person proved guilty of allowing horses to run loose upon the streets, in violation of a city ordinance, is prima facie guilty of negligence, and is bound to overcome it in order to successfully defend.</p> <p>3. Appellate Court Practice—Insufficiency of the Abstract.— Where large portions of the evidence and proceedings of the court are .either not abstracted at all or so insufficiently abstracted that the eourt is unable to form any definite opinion on these matters by reading the abstract alone, this court will be justified in affirming the judgment.</p>

<p>1. Practice—Power of Court After Expiration of the Term.—After the expiration of the term at which the judgment is entered, the court has no power to make any substantial amendment or to set it aside.</p>

<p>1. Negligence—Must Be Proved.—A person can not be held to be liable for the damages from a personal injury resulting from negligence where there is no testimony of any act or omission on his part which contributed to produce such injury.</p> <p>2. Jury—•Duty to Obey the Instructions of the Court.—It is the duty of the jury to follow the instructions of the court, and a refusal to do so will be cause for reversal.</p>

<p>Assumpsit, for royalties. Appeal from the Superior Court of Cook County; the Hon. Samuel C. Stoughet, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>Motion to Vacate Judgment by Confession.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>Assumpsit.—Appeal from tb e Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Pleading—Death from, Negligent Act.—A declaration by a personal representative for damages for the death of the person represented by him, in which there is no averment that the deceased left her surviving a husband or next of kin, or that any one suffered any pecuniary loss because of her death, states no cause of action.</p> <p>2. Limitations—Amendments to Declarations. —Where the original declaration contains no cause of .action, an amendment filed more than two years after the alleged cause of action accrued, remedying the defect, and by which a cause of action is stated, is amenable to the statute of limitations the same as if a new suit had been commenced at the time of the amendment, for the cause of action then stated.</p>

<p>Debt, upon a bond. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.</p>

<p>1. Good Will—Of a Partnership—Existence of, a Question of Fact.— Upon the question of the existence of a “ good will ” as a firm asset, where different conclusions might be reached by reasonable and fair-minded persons, the findings of the court below on such question are conclusive.</p> <p>2. Same—Defined.—The “ good will” of a partnership may be defined as every possible advantage acquired by the firm in carrying on its business, whether connected with premises, name, or other matter.</p> <p>3. Same—Described by Story.—“Good will” maybeproperlydescribed to be the advantage or benefit which is acquired by an establishment beyond the mere value of the capital, stock, funds or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position or common celebrity, or reputation for skill, or affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices.</p> <p>4. Same—In What Cases it Does Not Exist.—Ho “good will” can exist except in cases of commercial or trade partnerships. It does not exist in cases of professional business depending on the personal skill of, and confidence in the particular partner, in the absence of a special contract.</p> <p>5. Same—Partnership in the Commission Business.—The court holds that no “ good will ” exists in a partnership engaged in the business of buying and selling grain and produce on commission, in the absence of a special contract.</p>

<p>Assumpsit, upon a life insurance policy. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>Bill for Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Damages— When an Appeal is Prosecuted for Delay.—Where the court is of the opinion that an appeal is prosecuted for delay, it is proper to order that the decree be affirmed, and judgment entered against appellant in favor of appellee for damages.</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 fee 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. Town v. Alexander, 85 Ill. App. 512, followed.</p>

<p>Action for Rent,—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. Fraud—When One of Two Parties Must Suffer.—When one of two or more innocent persons must suffer loss, the consequence must ultimately rest upon him whose conduct has made it possible for the loss to occur.</p> <p>2. Equity—Will Not Postpone the Interests. —Equity will not postpone the interest of one who has omitted no duty devolving on him to the interests of another whose negligence has made it possible for a loss to occur.</p> <p>3. Mortgage—Not Assignable at Law.—A mortgage or trust deed is not assignable at law, but an assignment of the notes thereby secured is, in equity, an assignment of such mortgage or trust deed, and a clear distinction exists in this respect between a negotiable note purchased and assigned in good faith, and the mortgage or trust deed by which such note is secured. The former passes free from all equities between the parties, and the holder of the legal title may enforce payment in a court of law; but the latter, not possessing the attributes of negotiable paper, is assignable only in equity, and subject to the equities between the original parties thereto.</p> <p>4. SAMM—Duty of Assignee to Give Notice.—It is the duty of the assignee of a mortgage to give to the mortgagor notice of the assignment, not only to ascertain what, if any, defenses exist, but also to protect himself against bona fide payments made thereafter by the mortgagor.</p> <p>5. Same—Rights of the Assignee—Notice.—The purchaser of a mortgage takes it subject to all the infirmities to which it is liable in the hands of the assignor. Every defense which the mortgagor or his representatives could have made against the mortgagee will be allowed in a court of chancery against an assignee of a mortgage or trust deed who has not given notice of the assignment to the maker, for the reason that it is the duty of a purchaser of a mortgage to make inquiry of the mortgagor if there be any reason why the obligation should not be paid.</p> <p>6. Same—As Between the Mortgagor and an Assignee.—A mortgage is a chose in action as between the mortgagor and any subsequent assignee, subject not only to the state of accounts between the mortgagor and mortgagee at the time of the assignment, but to all payments made to the mortgagee at any time before actual notice of the assignment.</p> <p>7. Same—What the Assignee Takes.—An assignee takes a mortgage subject only to the equities residing in the original obligor, and not to latent equities residing in some third person against the assignor, of which the assignee has no notice, such, for example, as a cestui que trust. But the reason for this does not apply to a representative of the mortgagor, although he may be a subsequent grantee.</p> <p>8. Same—Duties of the Mortgagor.—It is the duty of the mortgagor, and equally so of his grantees, in dealing with the mortgagee, to e&ercise that care and prudence which an ordinarily prudent person exercises in the transaction of business.</p> <p>9. Maxim—In Equity.—Equity will not lend itself to deprive a party of a right which the law has secured him, if such right is intrinsically just in itself.</p>

<p>Interlocutory Order, granting an injunction. 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>

<p>Attachment.—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>Bill for Belief.—Appeal from the Superior Court of Cook County; the Hon. Farun Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Interpleader— What Judgment Entitled, to.—An interpleader is permitted for the purpose of establishing his title to the property or fund in dispute. The sole issue is the ownership of the property, and if he succeeds in establishing his title to the property or fund, as against the plaintiffs in the attachment, the only judgment he is entitled to is for his costs.</p> <p>2. Garnishment—Funds in Custodia Legis.—Funds in the hands of a garnishee are in custodia legis immediately on the service of the writ upon him, and from that time he holds the funds as agent of the court and remains in the custody of the law, subject to the determination of the court, when the issues or interpleas or other claims shall be made up, of the ownership_of such funds.</p> <p>3. Judgments—Subsequently Reversed.—At common law, when money had been paid on a judgment which is afterward reversed, restitution might be ordered without a scire facias.</p> <p>4, Saxe—Discharge of the Garnishee—Costs.—When it appears that the money or property in the hands of a garnishee is not the money or property of the defendant in the attachment, the proper judgment is that the garnishee be discharged and that the interpleader recover his costs of and from the plaintiffs in the attachment. In such case the garnishee should also receive his costs.</p>

<p>1. Landlord and Tenant—Fraudulent Concealment by the Lessor. —If a landlord by artifice or contrivance prevents the intending tenant from discovering defects, or if he fraudulently misrepresents the condition of the premises in some material particular wherein he has special knowledge, knowing that the tenant relies on his representation, and not on investigation or examination, the tenant may rescind the lease, and vacate the building upon discovering the hidden defect, or the falsity of the representation, and he may defeat upon such facts any claim for rent based upon such lease.</p>

<p>Action in Case, forpersonal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Practice—Amendments in Matters of Form.—Where a plaintiff amends his declaration in matters of form only, the defendant is not, for that reason, and as a matter of course, entitled to a continuance.</p>

Assumpsit, for the value of a party wall. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1899.

<p>Garnishment.—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>

<p>Action for Rent.—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>

Action for Damages to property by a public improvement. Appeal from the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the March term, 1899.

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Assumpsit, for commissions. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Bastardy Proceedings,—Appeal from the County Court of Fulton County; the Hon. G. L. Miller, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Former Decisions—Followed.—The decision in Frank E. Dooling, receiver, etc., v. John W. Davis et al., 84 Ill. App. 393, governs this case.</p>

<p>Assumpsit, for money paid. Appeal from the Circuit Court of Shelby County; the Hon. WilliamM.'Farmer, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Mortgages—Practice in Foreclosing.—It is not error for the court to permit an amount paid, to redeem from a sale under the foreclosure of a prior mortgage, to be added to the amount due on a subsequent mortgage in process of foreclosure.</p> <p>2. Same—Rule of Oonsti~uction.—The elementary rule in construction of mortgages is to ascertain from the instrument the intention of the parties, giving meaning to all the words and clauses used, if possible, and then give effect to such intention.</p>

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Cass County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Propositions op Law—When the Court Should Not Refuse.—The court should not refuse a proposition of law when it correctly states the law applicable to the evidence.</p>

<p>Assumpsit, on an insurance policy. Appeal from the Circuit Court of Champaign County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Libel—Charge of “Shameless Skullduggery” Actionable.—A newspaper publication charging the president of an institution of learning with “ shameless skullduggery ” is libelous, and actionable as such.</p> <p>2. Jukob—Misconduct—What is Not.—Pending the trial of a case in court, a juror, during the noon hour, in the presence of the attorneys for both sides, the presiding judge and the other officers of the court, had a short conversation with the plaintiff with reference to sending his son to the institution in his charge, and handed to him an envelope containing his son’s address, to which he requested that a catalogue be sent; but the court was unable to discover anything in the conduct of the juror to justify the conclusion that the verdict was influenced in any way by what was said or done.</p>

Action on the Case.—Death from negligent act. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1899.

Action on the Case, for the wrongful taking of property. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, , Judge, presiding. Heard in this court at the May term, 1899.

Action for Negligence, in the construction of a bridge upon a public highway. Appeal from the City Court of the city of Mattoon; the Hon. James F. Hughes, Judge, presiding. Heard in this court at the May term, 1899.

<p>Assumpsit.—Appeal from the Circuit Court of Piatt County; the Hon. William G-. Cochran, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Assumpsit, on an insurance policy. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Douglas County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. James H. Moffett, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>I. Record—Imports Absolute Verity.—The record of a court of record imports absolute verity upon its face, and can not be impeached by oral statements in a mere collateral way.</p>

<p>1. Evidence—Sustains the Verdict.—The court is of the opinion that the evidence fully sustains the verdict and affirms the judgment.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Assumpsit.—Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1889.</p>

<p>1. Forcible Entry and Detainer—Proof of Service and Notice.— The service of the notice in suits of forcible entry and detainer may be proved by parol.</p> <p>2. Same—What is Sufficient Proof of Notice.—Where the plaintiff, in an action of forcible entry apd detainer, delivered to the sheriff of the county for service, a notice to surrender possession, which was on the same day handed to a deputy, who testified that he delivered a copy to the defendants, and the testimony of the plaintiffs fixed the date and identified the copy of a notice produced upon the trial as a true copy of the one handed to the deputy, it was held that the evidence that such a notice was served was sufficient.</p>

<p>Voluntary Assignments.—Appeal from the County Court of Macon County; the Hon. William Hammer, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>I. Former Decisions—Followed.—The decision in The People, etc., for the use of the County of Pike, v. Addison Cadwell et al., is followed in deciding this case.</p>

<p>1. Sureties—Death of Principal Maher of Joint Note.—The statute (Hurd’s R. S. 1899, page 1684), providing that when the principal maker of any note, bond, bill or other instrument in writing dies, the holder of •such note, bond or bill, must present the same to the proper court for probate, does not apply to cases where the estate of such principal maker is insolvent and nothing can be realized from it in due course of administration.</p>

<p>1, Promissory Notes—Indorsed “ Without Recourse," Implied Warranty.—The indorser of a promissory note does not relieve himself from all liability by inserting the words “ without recourse ” in the indorsement placed upon the note. He will be liable on the implied warranty that the note is an obligation for the amount expressed upon its face.</p> <p>S. Same—Liability of Indorser When Note is- Usurious.—If the maker successfully interposes the defense of usury, and defeats the collection of the interest reserved in the note, the indorser will be liable to the indorsee or legal holder for the deficiency thereby occasioned.</p>

<p>1. Gifts—Declarations of Deceased Showing Intention.—The court holds that in this case the proven declarations of the deceased show an intention to make a gift of the money and note to his daughter, and his actions in having the money deposited in her name and in indorsing and delivering the note to her, make the gift complete.</p>

<p>1. Justice ofr the Peace—Jurisdiction Lost by Irregular Continuance.— Where a justice of the peace continues a cause indefinitely he loses jurisdiction, and any judgment subsequently rendered by him in such case is void.</p> <p>2. Same—Talcing Causes Under Advisement Indefinitely.—Where a justice of the peace takes a case under advisement indefinitely, any judgment rendered by him thereafter in the case is a nullity.</p>

<p>Forcible Entry and Detainer.—Appeal from the County Court of Macoupin County; the Hon. D. E. Keefe, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Action for Personal Injuries.—Appeal from the Circuit Court of Morgan County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1899.</p>

Assumpsit, for money had and received. Appeal from the Circuit-Court of Champaign County; the ,Hon. Francis M. Wright, Judge, presiding. Heard in this court at the May term, 1899.

<p>Debt, on an official bond. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1899.</p>

Assumpsit, for services. Trial in the Circuit Court of Edgar County, ■ on appeal from the board of supervisors; the Hon. Frank K. Dunn, Judge, presiding. Verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1899.

<p>1. Courts—Entering Judgment Nunc Pro Tuna After the Term.—A court has no power to enter a judgment nunc pro tunc as of a previous term, unless a judgment was in fact rendered at the previous term, and some minute or memorial paper thereof appears in the record itself.</p> <p>2. Presumptions—In Favor of Verdicts.—Every presumption is in favor of the verdict of the jury, and until it is set aside by the court it is proper to give judgment upon it.</p> <p>3. Appellate Court Practice— Where There Has Been a Failure to Enter a Proper Judgment.—Where there has been a failure on the part of the court to enter a proper judgment upon a verdict the Appellate Court may, upon motion, remand the cause to the Circuit Court, with leave to the plaintiff to move that court for a proper judgment on the verdict.</p>

<p>Assumpsit, for services rendered. Appeal from the Circuit Court of Edgar County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Trespass, for false imprisonment. Appeal from the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Voluntary Assignments.—Appeal from the County Court of Vermilion County; the Hon. M.‘ W. Thompson, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1899.</p>

<p>1. Revenue—Jurisdiction of the Appellate Court in Cases Relating to.—Under Section 88 of the Practice Act, “ in all cases relating to the revenue,” appeals must be taken directly to the Supreme Court.</p>

<p>I. Marshaling Assets—Partnership and Individual Liabilities.— It is a familiar rule in marshaling assets that partnership assets shall be taken in discharge of partnership liabilities and individual assets in discharge of individual liabilities.</p>

Bill to Remove a Cloud, etc.—Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1899. Affirmed in part, reversed in part, and remanded.

<p>1. Gambling—Recovery of Money Lost at.—Under Section 133 of the Criminal Code a building used as a gaming house, or which the owner knowingly permits to be used for gaming purposes, may be sold to pay a judgment recovered under Section 133 of such Code, and proceedings may be had to subject the same to the payment of such judgment, either before or after execution issues against the property of the person against whom the judgment was recovered.</p> <p>3. Same—What is Sufficient to Put the Owner of Premises upon Inquiry.—The fact that the owner, after receiving complaints that his premises were being used for gambling purposes, visited them and saw there a poker table and other furniture, this, even if he were not familiar with the paraphernalia of a gambling room, was sufficient to put him upon inquiry.</p> <p>3. Same—Remedy in Chancery.—The court is of opinion that a bill in equity can be maintained to subject property used for gambling purposes to the payment of a judgment recovered by special action on the case against the winners of money lost at gaming in such property.</p> <p>4. Same—Trial by Jury Not a Matter of Right.—The defendant in a suit under Section 133 of the Criminal Code is not entitled to a trial by jury as a matter of right, and the finding of the jury in such a proceeding is merely advisory.</p> <p>5. Equity Practice—In Jury Trials.—If a judge, sitting as a chancellor, prefers, by reason of the unsettled condition of his mind, after hearing the evidence submitted upon an issue, to have the advice of another jury, he should set the verdict aside and impanel another jury to retry such issue.</p>

<p>1. Railroads—Duty Toward Trespassers.—Toward a trespasser using the yards or tracks of a railroad company for foot passage, and without an invitation to do so, the company is under no obligation of care and caution in the movement of its trains, and can not be charged with liability except in case of willful or wanton negligehce.</p> <p>2. Same—Use of Tracks by Assent or Invitation.—If the place at which a person is injured in passing over a railroad track is not a public street, but has been so far used by the public as to show an invitation or assent by the company to such use, the rule as to trespassers has not been applied, but railroad companies have been held obligated to the exercise of care in the movement of their trains in relation to such ways and the people.</p> <p>3. Same—Who are Trespassers.—A right of way of a railroad company is the exclusive property of such company, upon which no unauthorized person has the right to be, and one who travels upon such right of way, as a foot-way, and not for any business with the railroad, is a wrongdoer and a trespasser; and the mere acquiescence of the company in such user does not give right to so use it, or create any obligation for his especial protection.</p> <p>4. Same—Effect of Permission to Pass over Tracks.—A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against the danger of accident.</p> <p>5. Same—Running Trains at a Greater Bate of Speed than Allowed by Ordinance.—The fact that a railroad company is running its train at a greater rate of speed than allowed by ordinance does not relieve persons from the exercise of ordinary care, nor can the speed of the train alone be regarded as furnishing a sufficient reason for holding that an injury was willful or wanton.</p>

<p>1. Injunctions—Without Notice.—A statement of a conclusion, without any facts set forth to support such conclusion, is insufficient as a pleading upon which to order an injunction without notice.</p>

<p>Assumpsit, for goods sold. 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, 1899.</p>

<p>Mandamus.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March' term, 1899.</p>

<p>Foreclosure.—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. Jurisdiction—Entry of Appearance—Appeals from Justices.— When a defendant enters his appearance it does not matter whether there has been any summons in the case or not. The object of the summons is to bring the party into court, and when he appears the purpose of the service of summons has been accomplished.</p> <p>3. Same—Appeals from Justices—Go-defendants.—It is not necessary, in order to give the court jurisdiction over a co-defendant, on appeal from a justice, that his appearance should be entered ten days before the first day of the term. The appearance of the appellee is required to be so entered in order to permit the case to stand for trial at such term.</p>

<p>1. Records—Evidence of Damages—Dissolution of Injunctions.—A failure to show in the record, the evidence upon which an allowance of damages is made upon the dissolution of an injunction, is fatal.</p>

<p>Proceedings for Contempt.—Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

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

<p>1. Appellate Court Practice—When Motions Come Too Late.— ' Matters of mere irregularity require a party objecting to move at the first opportunity.</p>

<p>Mechanic's Lien.—Error to the Circuit Court of Cook County: the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Pleadings—Non Damnijieatus to Actions on Bond.—Where a bond sued upon provides for a penalty or forfeiture, the plea of non damnijieatus is proper, and will admit of the introduction under it of evidence tending to show what, if any, actual damages suffered for which the obligee is entitled to be indemnified by reason of a breach in the condition of such bond, but if the bond provides for liquidated damages non damnijieatus is not a proper plea.</p> <p>2. Bonds—Penalties and Liquidated Damages.—The difference between a penalty and liquidated damages is that the former is regarded as a forfeiture, from which the defaulting party can be relieved, while the latter, being the agreed damages for breach of the condition of the bond, the parties are holden to it.</p> <p>3. Same—Whether a Penalty or Liquidated Damages.—Whether the sum named in a bond is a penalty or liquidated damages is to be determined by the intention of the parties. Where the obligation .is evidently made for the attainment of another object or purpose to which the stipulation itself is wholly collateral, the sum named will be considered a penalty; but where the damages are uncertain, and not capable of being ascertained by any satisfactory known rule, the sum mentioned will be regarded as liquidated damages.</p>

<p>Petition to Remove an Assignee.—Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>Trespass, to personal property. Appeal from the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

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

<p>1. Divorce—Drunkenness as a Ground—What is Sufficient Proof.— Where the charge of drunkenness is supported by a number of witnesses, who state that the defendant was in the habit of becoming intoxicated from one to three times a week, that his habits of drinking cover a period of four or five years preceding the hearing, and that he was in the habit of drinking intoxicating liquor, generally whisky, on an average of three to five times a day, it is sufficient as a ground for divorce.</p> <p>2. Same—Proof of Adultery—The fact of adultery can seldom, if ever, be proved by direct evidence. It has therefore been almost invariably held that when the facts and circumstances in evidence lead to that conclusion as reasonable and just, the court and jury will be justified in finding the charge sustained.</p>

<p>Bill for Injunction.—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>Bill to Enlarge a Former Decree.—Error to the Superior Court of Cook County; the Hon. Nathaniel C. Sears, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>1. Trade Names—Right of a Person toUseHis Own Name.—A person can not be entirely prohibited from using his own name as a trade name in any lawful occupation, but he can be restrained from using it in such a manner as to perpetuate a fraud upon the public or to injure another person of the same name.</p>

<p>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. Negligence—Loss of Money by a Passenger— The mere proof of loss of money by a passenger, while occupying a berth in a sleeping car, does not make out aprima facie case against the company; to sustain a recovery some evidence of negligence on the part of the defendant must be given.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Jesse Holdoji, Judge, presiding. • Heard in the Branch Appellate Court at the March term, 1899.</p>

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

<p>Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Evidence—Letters in Answer to Previous Communications.—A letter received in answer to a previous communication is admissible iñ evidence without proof of handwriting, and is prima fade the letter of the person who purports to sign it.</p> <p>2. Presumptions— President of a Corporation—Authority to Execute Promissory Notes.—The president of an incorporated company is presumed to have authority to execute promissory notes.</p> <p>8. Instructions—Technical Accuracy.—An instruction which recites that “ if the jury believe,” etc., without limiting them to the evidence as the source of their belief, is in this respect technically incorrect, but is not reversible error in this case.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Samuel C. STOTOH, judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Negligence—Ordinarily a Question of Fact.—While the question of negligence is ordinarily one of fact for the jury, yet, when the inference of negligence necessarily results from the facts detailed in the statement of his case by the plaintiff, it becomes a question of law for the court.</p>

<p>1. Statute op Frauds—Contracts Not Within.—Where there is a new consideration moving from the promisee to the promisor, as where he gives up some lien or security, the superadded consideration makes it a new agreement, for the performance of which no third person is liable, and is not within the statute of frauds.</p>

<p>1. Tax Sale—Bill to Set Aside—By Whom it Will Lie.—The right to bring a suit for the purpose of setting aside a tax sale, is not confined to the original owner of the land, but may be exercised by a mortgagee, or by any person who can show such an interest in the estate as would have entitled him to redeem.</p> <p>3. Same—Constitutional Right of Redemption.—The constitutional right of redemption from all sales of real estate for the non-payment of taxes exists in favor of owners and persons interested in such real estate.</p> <p>3. Tender—For Taxes Must he Kept Good.—A tender of money in payment of taxes to the holder .of a tax deed, by a party filing a bill to redeem, must be kept good by paying the money into court, when its acceptance is refused.</p>

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

<p>1. Account Stated—What is—Definition.—An account stated is an agreed balance of accounts, which has been examined and accepted by the parties to the transaction in question.</p>

<p>1. Voluntary Assignments— What Passes to the Assignee.—The assignee of a failing debtor takes the property assigned subject to all equities, liens or incumbrances which existed against it in the hands of the insolvent.</p> <p>2. Same—Priorities—Liens for Rent.-—A clause in a lease providing that “ the lessor or his representatives or assigns shall have at all times, the right to distrain from rent due, and shall have a valid and first lien upon all property of the party of the second part, whether exempt by law or not, as security for the payment of the rent ” reserved, gives no lien upon after-acquired property of the lessee in the hands of the assignee of the lessee in a case where the landlord has not availed himself of his right to distrain.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Bill of Exceptions—Seal an Essential Element.—A seal is an essential element of validity in a bill of exceptions, and without which it is no part of the record, and can not be looked into by the reviewing court for the pin-pose of seeing what was excepted to on the trial below.</p>

<p>1. Bribery—Of Town Assessor.—In order to charge an assessor of a town with the crime of proposing to receive a bribe to reduce an assessment, it is necessary that the indictment should allege that the property upon which the assessment is proposed to be reduced is within the town for which he is the assessor.</p> <p>2. Judicial Notice—Of Towns in a County.—It is a matter of judicial cognizance that both the original town of Chicago and the town of South Chicago are situated in Cook couniy, and judicial notice may also be taken by the boundaries of each one of such towns, created, as they were, by acts of the legislature of the State.</p> <p>3. Same—Situation of Lots and Blochs in a Town.—A court may take judicial notice that an alleged lot and block are situated within that part of the original town of Chicago which is within the south town, and not in either the north or west town of Chicago.</p> <p>4. Indictment—Allegations of Intent.—If a statute creating an offense is silent concerning the intent, there need be no intent alleged in an indictment for an offense under it.</p> <p>5. Intent—In Criminal Acts.—Where an act is criminal in its very nature, it is prima facie evil in intent, and the intent need not be alleged unless the law has made it affirmatively or descriptively an element in the offense.</p>

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

<p>Error to the Criminal Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1899.</p>