Volume 87 — Illinois Appellate Court Reports

<p>1. Pleading—Rule of Construction.—A pleading is to be construed most strongly against the pleader.</p> <p>3. Easements—Authorized by the State Can Not be Public Nuisances.—Where a public easement has been authorized by the State, no action can be maintained on the assumption that it is a public nuisance, for that can not be a public nuisance which the State assents to and authorizes.</p> <p>3. Nuisances—Obstruction of Highways.—Any unreasonable obstruction of a highway is a public nuisance; but where a street car company occupies streets with its tracks and cars rightfully and lawfully, the mere change in the motive power of the cars and the operation of three cars at a time instead of one, and at a higher rate of speed than they can be operated by animal power, will not be such an unreasonable obstruction of the street as to constitute a nuisance.</p> <p>4. Corporations—Responsibility for Wrongs Committed or Authorized.—Corporations are responsible for the wrongs committed or authorized by them unuer substantially the same rules which govern the responsibility of natural persons.</p> <p>5. Same—Liability for Acts Ultra Vires.—It an act of a corporation is ultra vires and creates a public nuisance, it is liable for such injuries as result from the ultra vires act.</p> <p>6. Same—When Ultra Vires Affords no Defense.—Corporations can not shield themselves for a tort committed in the prosecution of their business by a claim that the acts were ultra vires. .The doctrine of ultra vires has no application in such cases and affords no defense.</p> <p>7. Same—Ultra Vires of no Advantage to the Plaintiff.—A plaintiff can be allowed no advantage in a suit against a corporation for an injury caused by its own ultra vires act, simply because the act is ultra vires, when the act in question is not prohibited by positive law, or is a nuisance or a crime.</p> <p>8. Same—Bp Whom the Doctrine of Ultra Vires Can Be Invoiced.— The charter of an incorporated company is not a contract between the corporate body, on the one hand, and the individual whose rights and interests may be affected by the exercise of its powers on the other. It is a compact between the corporation and the government, from which it derives its powers, and individuals can not insist on breaches of the contract of incorporation as aground for resisting the exercise of its powers. That can be done only by the government, and in proceedings duly instituted against the corporation.</p>

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

<p>1. Corporations—Liability for the Acts of Contractors, etc.—Where the construction of an elevated railroad is done by a contractor, or his sub-contractors, under the direction and supervision of the engineer of the company, and a person while passing along the street underneath the structure, in the exercise of ordinary care for his safety, is injured by a bolt falling from the structure overhead, causing an injury, proof of such injury makes a prima facie case of negligence, which it is incumbent upon the company to explain.</p>

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

<p>Error to the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Mistakes—Power of Equity to Reform.—Courts of equity have power to reform an instrument for a mistake of fact, but the mistake must be mutual or common to both parties, and must be proven by clear and satisfactory evidence.</p> <p>2. Equity Practice— When Too Late to Raise the Point that There is an Adequate Remedy at Law.—The point that there is an adequate remedy at law and no ground for the intervention of equity not having been raised in the court below, can not be raised in a court of review for the first time.</p> <p>3. Same—Supplemental Bills, When Proper.—The general rule is that new matter arising after the commencement of the suit, must be brought before the court by supplemental bill, if such new matter is to be made the basis of distinct relief.</p> <p>4. Same—The Rule Relaxed as to Supplemental Bills.—In modern practice the rule as applied to accountings is relaxed so as to permit them to cover periods pendente lite and down to the time of the decree.</p> <p>5. Same—Relief Not Necessarily Limited to the Facts Existing at the Commencement of the Suit.—While it is true that in suits in equity the right to decree is not limited to the facts as they existed at the commencement of the suit, and the relief administered may be such as the nature of the case and the facts as they exist at the close of the litigation demand, yet it is the established rule of chancery practice that such of the facts as have arisen after the bill is filed, if made the basis of relief, must be presented to the court by supplemental bill.</p>

<p>1. Practice—Motions to Set Aside Defaults.—The court has no jurisdiction of a motion to set aside a judgment rendered at the next preceding term, except on some ground which would be sufficient for setting it aside on writ of error coram nobis.</p> <p>2. Presumptions—That the Court Aeted Correctly.—Where the record fails to show to the contrary the presumption is that the court below acted correctly, and will prevail until an error is shown to have bpen committed.</p> <p>3. Error Coram Nobis—What May be Assigned Upton.—Only errors of fact may be assigned in support of a writ of error coram nobis.</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>Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the October term, 1899.</p>

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

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

<p>1. Evidence—Of Subsequent Conditions.—Evidence as to the condition of a ditch, subsequent to the date of an injury complained of from its overflow, is not competent, until proof has been made showing that there had been no change in the same since the time of the injury, or if there had been a change, showing what it was.</p> <p>2. Instructions—In Close Cases.—Where the evidence is conflicting and the case a close one great care should be exercised to make the instructions clear and accurate.</p>

<p>Indictment for selling liquor to minors. Error to the County Court of Rock Island County; the Hon. Lucian Adams, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>Action in Case.—Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Criminal Procedure—Affidavits of Grand, Jurors Can Not be Received to Impeach an Indictment.—On grounds of public policy, affidavits of grand jurors can not be received to impeach an indictment found by them.</p> <p>2. Same—Witnesses Names on Indictments.—The name of a witness who is called, but refuses to testify before the grand jury, may be properly omitted frpm the back of the indictment.</p> <p>3. Same—Organization of the Grand Jury—How Questioned.—The organization of the grand -iury can not be questioned in this State by a -plea in abatement, but only by a clyjlenge. to-the-array or a motion to quash the indictment.</p> <p>4. Same—What Pleading to an Indictment Admits.— Pleading to an indictment admits its genuineness as a record, for an averment by way of plea can not be received against a record.</p> <p>5. Same—Bills of Particulars.—Whenever an indictment is so general as to give the defendant inadequate notice of the charge that he is expected to meet, the court will, on his application, require the prosecution to furnish him a bill of particulars of the evidence intended to be relied upon.</p> <p>6. Same—Reference to Defendants Failure to Testify.—Tha_npglpnt. of a defendant to testify in his own behalf in a criminal proceeding creates no presumptipn^gainst.him^asd.._an^j^f.erome-roL--uommeat JippmsuclyMglentjfco testify. nradeJjyjhejupsecutii^attpraey, Js^rm-^</p> <p>7. Same—What is No Defense.— It is no defense to a criminal prosecution that the crime xvas committed against one who was also engaged with the defendants in another criminal enterprise.</p>

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

<p>Mandamus.—Error to the Circuit Court of De Kalb County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>Error to the Circuit Court of Will County: the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>Forcible Detainer.—Appeal from the Circuit Court of Woodford County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Settlement—Unaccepted Offer.—A mere unaccepted offer to pay a sum in compromise of a suit or claim is not admissible in evidence against a party, on grounds of public policy, and this rule is applicable to bastardy suits.</p> <p>2. Bastardy Proceeding—A Civil Suit.—A proceeding in bastardy is a civil suit, and a preponderance of evidence in favor of the comp’ainant is sufficient to support a verdict.</p> <p>8. Instructions—Preponderance of the Evidence.-—It is improper to instruct a jury in an argumentative manner as to the weight to be given to the testimony of witnesses: the jury themselves may see reasons to believe one and disbelieve another.</p>

<p>1. V oluntaby Assignments—Expense of Erroneous Appeal.—Where an assignee takes an appeal to the wrong court, and persists in such appeal after hieing advised that he is wrong, and the appeal is taken for his benefit, the expenses of the mistake should be borne by him.</p> <p>2. Same--Assignee Entitled to Professional Advice and Assistance. —An assignee is entitled to professional advice and assistance in drawing his report in matters of importance, as well as a reasonable allowance for an attorney at the hearing of objections.</p> <p>3. Same—Liability of Assignee for Bents Not Collected.—An assignee should be charged with the difference between the amount of rents due his assignor and the amount he should have collected.</p> <p>4. Same—When Chargeable with Interest.—An assignee is to be charged with legal interest on amounts found due in his hands for distribution from the time they should have been distributed.</p> <p>5. Practice—Motion to Strike Objections by Non-resident Oreditors from the Files.—Before a motion to strike objections of non-resident creditor? from the files for tire want of security, for costs can be entertained, it must. be shown, by affidavit or otherwise, that at the time the objections were filed the objectors were non residents of the State of Illinois.</p>

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Boone County; the Hon. Charles E. Fuller, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the October term, 1899.</p>

Information.—For a violation . of the dram-shop act. Error to the County Court of Kankakee County; the Hon. E. B. Gower, Judge, presiding. Heard in this court at the October term, 1899.

<p>Information.—For selling intoxicating liquors. Error to the County Court of Kankakee County; the Hon. E. B. Gower, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Verdicts—Unsupported try Evidence.—Where the evidence fails to support the material averments of the declaration a judgment founded upon the verdict will be reversed.</p>

<p>1. Proposition op Law—Reversible Error.—Slight errors in the propositions of law should not reverse the judgment.</p>

<p>Divorce.—Appeal from the Circuit Court of Iroquois County; the Hon. Robert W. Hilscher," Judge, presiding. Heard in this court at the October term, 1899.</p>

Assumpsit, for money had and received. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the October term, 1899.

<p>1. Dram-shop License—Power of Municipalities to Determine the Amount of.—A city is without authority to determine the amount of license to keep a dram-shop by resolution; it can legally fix the same only by an ordinance.</p> <p>2. Ordinances—Repeal of.—An ordinance legally enacted can not' be repealed by resolution.</p> <p>3. Cities and Villages—When Ordinances are Necessary.—Acts of municipal corporations, which are legislative in their character, must be enacted in the form of ordinances, and not of resolutions.</p> <p>4. Dram-shop—Pcwir to License.—The power to license, regulate or prohibit is a dormant power, and affords no authority to issue licenses until it is called into life and put into operation by appropriate legislation by the proper authorities.</p> <p>5. Same—Requisites of the Legislation.—Without the adoption of a general ordinance on the subject, authorizing the issuing of licenses, and specifying who shall issue them, the length of time they shall run, the amount to be paid by the applicant, the time and manner of paymen t, etc., municipal authorities are powerless to issue license to any one.</p> <p>6. Construction of Statutes—Repeal by Implication—Sities.—The law does not favor a repeal by implication. The earliest of two statutes continues in force unless the two are clearly inconsistent with, and repugnant to each other, or unless in the latest statute some express notice is taken of the former, plainly indicating an intention to repeal it. Where two acts are seemingly repugnant, they should, if possible, be so construed that the latter may not operate as a repeal of the former, by implication, So a subsequent statute, which is general, does not abrogate a former statute which is particular.</p> <p>7. Same— General Statute Without Negative Words—Repeals.—A general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent.</p> <p>S. Same—Inconsistent Acts.—If two statutes said to be inconsistent can be so construed that each may be enforced, such construction is to be adopted as will give effect to the legislative will, as expressed in each act.</p> <p>9. Same—Subsequent Acts Without Negative Woo'ds.—A subsequent law which is general, does not abrogate or repeal a former one which is special, and intended to operate upon a particular subject; and if the latter statute does not contain negative words it will not repeal the particular provisions of the special law on the same subject, unless it is impossible that both should be enforced.</p>

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

<p>Trespass De Bonis Asportatis.—Appeal from the Circuit Court of Whiteside County; the Hon. Frank Ramsey, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Motormen— Reasonable Care.—A motorman in charge of an electric car is required to use reasonable care to avoid the danger of frightening horses, and, after discovering such danger, if his conduct is either grossly negligent,or willful and wanton, his employer will be liable.</p>

Assumpsit, for goods sold, etc. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the October term, 1899.

<p>1. Electricity—Care Required in Dealing With.—Where a person deals with a dangerous agent for his pecuniary gain, the degree of care devolving upon him should be in proportion to the dangers which it is his duty to avoid.</p> <p>2. Damages—Excessive—In Cases of Death from Negligence.—It is for the jury to assess the damages in cases of death resulting from the negligent use of electrical appliances, and unless the court of review can see that the verdict is the result of passion and prejudice, or is unreasonable, it will hesitate to interfere on the ground that the amount is excessive.</p>

<p>Bill for Specific Performance.—Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the May term, 1898.</p>

<p>1, Divorce—Proofs Must Sustain the Bill. —In a suit for divorce, where the evidence is conflicting and the preponderance is not with the complainant, the allegations of the bill can not be said to be sustained and it is properly dismissed.</p>

<p>1. Evidence —Unexecuted Leases, When Admissible.—A. written lease prepared by the parties, but not executed by them, is competent evidence, and properly admitted for the purpose of showing what the parties considered the fair rental value of the premises described in it.</p>

<p>Administration of Estates.—Appeal from the Circuit Court of Lee County; the Hon. James S. Baume, Judge, presiding. Heard in this court at the October term, 1899.</p>

Assumpsit, to recover damages for the breach of a written contract for the sale of real estate. Appeal from the Circuit Court of Lake County; the Hon. John C. Carver, Judge, presiding. Heard in this court at the October term, 1899.

<p>1. Practice—Order of Proofs.—Where the acts of an agent are relied upon to make a cáse, proof of his authority should be made before evidence of his acts are admissible.</p> <p>2. Same—As to Proceeds of Writs in the Bands of Other Officers.— Where a constable holds a justice’s execution against a person whose property is already in the hands of the sheriff under a prior execution from the Circuit Court, the proper practice is for the plaintiff in the justice’s execution to apply to the Circuit Court for a rule on the sheriff to pay to the constable, after satisfying his prior writ, the amount called for by his execution.</p> <p>3. Same—Proof of Acts of Agent Before Agency Proven, Not Admissible.—It is improper practice to admit proof of the acts of an agent, till the agency has been proven.</p>

<p>1. Insurance—What Makes a Prima Facie Case for the Plaintiff on a Policy.—In an action on a policy of life insurance, proof of the execution and delivery of the policy, death of the insured, and the payment of the premiums, make a prima facie case for the plaintiff.</p> <p>2. Estoppel—By Recitals in Policy of Insurance.—On grounds of public policy insurance companies are estopped to prove, for the purpose of avoiding the contract of insurance, that the premium, which the policy acknowledges is paid, has not in fact been paid.</p>

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

<p>1. Mechanics’ Liens—Rights of Sub-contractors.—A sub-contractor is not entitled to a lien under the lien law of 1874, unless notice has been given the owner as provided by law.</p> <p>2. Same—When the Owner May Pay the Contractor.—Until the owner is notified of the sub-contract, in one of the ways prescribed by the statute, he may lawfully pay money to the original contractor, whether due or not, and does not thereby violate the rights of sub-contractors of which he has not been notified.</p> <p>3. Same— The Law to be Strictly Consiimed..—The lien law is to be strictly construed, and he who seeks a lien must show a clear compliance with all its requirements.</p>

<p>1. Practice—In Stats Against Two or More Defendants.—Where several persons are sued in an action ex contractu, the plaintiff must prove a cause of action againstall defendants sued and declared against, whether served with process or not, otherwise he will not be entitled to judgment against any.</p> <p>2. Idem Sonans—“Glaes Lundine^,and “ Chas. Lundine.”—In the absence of proof that Claes Lundine and Chas. Lundine are one and the same person, as the two names are not idem sonans, the court will not assume that they are so.</p> <p>3. Verdicts—Direction for the Defendant, When Proper—Liability. —When the plaintiff- fails- to prove the joint' liability of all the parties " mide defendants to the suit, the action of the court below, in excluding the evidence and directing a verdict for the latter, is proper.</p>

<p>1. Real Estate Broker—Where Entitled to His Commissions.— Where the seller consummates a sale of property upon different terms than those, proposed to his agent, the latter will not thereby be deprived of his right to his commission.</p> <p>2. Same—Where the Owner Negotiates the Sale.—Where the agent Introduces a sufficient purchaser to the owner, he will not be deprived of his commissions because the owner negotiates the contract himself, or voluntarily reduces the price of the property.</p>

<p>Assumpsit; on a contract in writing. Appeal from the Circuit Court of Ogle County; the Hon. James Shaw, Judge, presiding. Heard in this court at the October term, 1899.</p>

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

<p>1. Practice—Delaying a Trial Discretionary.—Whether the trial of a case should be delayed or not is a matter of discretion with the trial court, and is not assignable error.</p>

<p>1. Partition—Solicitor's Fees, When Not Proper.—Notwithstanding a bill for partition states the rights and interests of the parties correctly, if a defense is made of a substantial character, and undertaken with reasonable grounds, the complainant will not be entitled to have his solicitor’s fees apportioned under the statute.</p>

<p>Action for Killing Stock.—Appeal from the Circuit Court of Kankakee County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the October term, 1899.</p>

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

<p>1. Process—Regularity of a Justice's Summons.—A summons issued by a justice of the peace, and made returnable at eight o’clock A. si. on the day set for trial, is a sufficient compliance with the statute requiring such process to be returnable between the hours of eight o’clock A. M. and four o’clock p. si.</p>

<p>Bill of Interpleader.—-Appeal from the Circuit Court of Kankakee County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>Assumpsit, for physician’s services. Appeal from the Circuit Court of Mercer County; the Hon. Hiram Bigelow, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Beneficiary Associations — Assessments to be in Accordance with the Original Contract.—Assessments in fraternal insurance associations must be made in accordance with the terms of the original contract of the member.</p> <p>2. Same—Burden of Proof—Legality of Assessments.—The burden of showing the legality of an assessment of a fraternal insurance association, and the power of the officers to make it, is upon the association.</p> <p>3. Same—Burden of Proving a Forfeiture.—The burden of proving a forfeiture of a member’s certificate for non-payment of an assessment is upon the association.</p> <p>4. Same—What Constitutes the Contract of Insurance.—Where the indorsements upon the certificate of membership, and made a part thereof, expressly provide that the application for membership and the certificate “ shall constitute the complete and only contract ” between the certificate holder and the association, such application and certificate constitute the contract.</p> <p>5. Same—By-laws May be Made a Part of the Contract. —It is undoubtedly competent for parties to make contracts with reference to the by-laws then existing, or which might thereafter be adopted, and when such contracts are so made, such by-laws become a part of the contract.</p> <p>6. Same—Right to Make Changes in By-laws.—Where the contract contains an express provision reserving the right in the association to amend or change its by-laws, it will have the right so to do; and where in a certificate of membership it is provided that members shall be bound by the rules and regulations then governing the council or fund, or that might thereafter be enacted for such government, and such conditions are assented to, and the members accept the certificate upon such conditions, it is a sufficient reservation of the right in the society to amend its by-laws.</p> <p>7. Same—By-laws as a Part of the Contract.—The better opinion is, if it is conceded that by-laws in force when the certificate is issued enter into and become a part of the contract, that it is only those then in existence; and that the society has no right, by amending or repealing any of them, without the consent of the certificate holder, and in the absence of any such right reserved in the contract, to impose new conditions or burdens, affecting the contract to his injury, or by a new provision, passed after the making of the contract, to forfeit his rights under it.</p> <p>8. Same—Rights of Members.—In a contract of mutual benefit insurance the member acts for himself and not as a part of the society; his rights rest upon his contract of insurance, and not upon his contract of membership in the society. A corporator in a mutual benefit society, like a stranger, may enter into a contract of insurance with it, and his rights under the contract will be as fully protected as those of a stranger.</p> <p>9. Estoppel—In Pais, Arises When.—Equitable estoppels, or estoppels in pais, only arise where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his previous position; the former is concluded from averring against the latter a different state of things as existing at the same time. '</p> <p>10. Same—By Paying Illegal Assessments.—A member of a fraternal insurance association, in paying previous illegal assessments, can not be said to have acted fraudulently, or willfully done anything calculated to mislead others to their injury, so as to estop himself from questioning subsequent illegal assessments.</p> <p>11. Evidence—Opinions of Insurance Actuaries.—Opinions of insurance actuaries and reports of insurance commissioners of various States are not competent evidence in an action against a fraternal insurance association of this State on a beneficiary certificate.</p>

<p>Appeal from the County Court of LaSalle County; the Hon. H. W. Johnson, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Mechanics’ Liens—Laws to be Strictly Construed.—Mechanics’ lien laws are in derogation of the common law and must be strictly-construed.</p> <p>2. Same—Sufficient Statement of a Lien.—Where a person filed a claim, stating that he claimed a lien for the sum of $1,818 on the thn e lots situated in different parts of the city (describing them) for work done and material furnished in and about the construction of three dwelling-houses thereon, etc., but without showing wbat buildings had been constructed upon each lot, or the amount of the indebtedness apportioned among the lots, it was held that the statement was not sufficient.</p>

<p>Bill to Set Aside a Conveyance.—Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Instructions—Death from Negligent Aet.—An instruction in an action to recover damages resulting from a death from negligence, which has a tendency to mislead the jury into believing that notwithstanding the fact that the deceased may have been guilty of negligence in bringing about the accident, yet if the speed of the train or neglect to ring the bell contributed to cause the injury the plaintiff was entitled to recover, is erroneous.</p>

<p>Trover.—Appeal from the Circuit Court of De Witt County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Wills—Testamentary Intentions— When They Take Effect.—Testamentary intentions take effect at the death of the testator, and the law as it then exists becomes as muoli a part of the will as if written into it.</p> <p>2. Same —Fraudulent Dispositions of Property.—A fraudulent disposition of property in a will can have no effect whatever, as no creditor can be prejudicially affected by the terms of a will. A creditor’s rights are fixed and determined by- law, and not controlled by the will of his debtor.</p> <p>3. Administration oe Estates—Eights of Creditors. —A creditor’s right to be paid out of the assets of his debtor’s estate does not depend upon testamentary provisions, but is secured by law both in testate and intestate estates.</p> <p>4. Same—How Administrators and Executors Take. —Administrators and executors, so far as creditors are concerned, take the property of the deceased person in the same condition as it was left at the time of his or her decease, whether such condition is the result of the operation of law, or the act of the deceased party himself.</p> <p>5. Executors and Administrators—Personal Representatives of Deceased.—An executor or administrator is the representative of the intestate or testator, and succeeds to his rights and interests. He is not the agent or trustee of creditors and as to the latter it can make no difference whether there be a will or not, for in either case creditors are entitled to prove their claims and participate in the distribution of the assets as the law directs.</p> <p>6. Parties—Fraudulent Conveyances try Deceased Persons—Rights of Creditors.—If fraudulent conveyances, or other fraudulent disposition of property by the deceased person should intervene to affect his rights prejudicially, the creditor alone, and not the representative, can invoke the remedy.</p> <p>7. Real Estate—Of Deceased Persons—Power of Administrator and Executor.—The executor or administrator has no concern with the real estate; he is not entitled to receive the rents and profits, as they belong to the heirs or devisees; the only power of the executor or administrator with respect to the realty is to petition the court for leave to sell it for the payment of the debts of the deceased, and to make sale of it for such purpose upon license given, and the general rule in this respect is not varied by will.</p> <p>8. Personal Estate—Administrator the Sole Representative.—The administrator is the sole representative of the personal estate, but not of the real property. The latter descends to and vests in the heirs, over which the administrator has no control or concern, except a mere power to apply for an order to sell the same, when necessary for the payment of debts.</p> <p>9. Administrator—Takes no Realty, etc.—An administrator takes neither an estate, title or interest in the realty of the deceased. He can not support a possessory or real action, in law or equity, for the recovery or maintenance of possession or title, or to clear a title from clouds or adverse claims; if necessary to sell for the payment of debts, he must take the estate as he finds it.</p>

<p>Action for Damages.—Death from negligence. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>l. Res Adjudicata—Appellate Court Decisions.—Under the provisions of the Appellate Court act the previous opinion rendered in a cause is of binding authority in the cause, not only upon the parties but upon the court.</p>

<p>Garnishment.—Appeal from the Circuit Court of McDonough County: the Hon. George W. Thompson, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Intoxicating Liquors—Cider.—The question as to whether cider is an intoxicating liquor depends upon circumstances, and is a question of fact for the jury.</p> <p>3. Same—Sale of Cider Under the Act of 1872.—The protection intended by the act of 1872, entitled, “ An act for the protection of farmers, fruit growers, vine growers and gardeners,” is limited to farmers, fruit growers, vine growers and gardeners selling their products as such, and not intended to protect retail merchants, grocers, or keepers of drinking establishments in the sale of products which the ordinary vender must have a license to sell.</p> <p>3. Same—Defined.—“Intoxicating liquor,” as used in the second section of the dram-shop act, means liquor that will intoxicate, whether hard cider, whisky, or beer, and if, in any case, the proof shows that the liquor sold was intoxicating, the seller comes within the spirit and letter of the act.</p> <p>4. Statutes— Const ruction of the Act of January 13,1872.— The act of January 13, 1872, entitled “An act for the protection of farmers, fruit growers, vine growers and gardeners,” does not authorize a farmer or fruit grower to sell any kind of intoxicating liquor, although sold by him as a farmer or fruit grower.</p>

<p>Debt, on a dram-shop keeper’s bond. Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Action for Damages.—Death from negligence. Appeal from the Circuit Court of McLean County, the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Witnesses—Stockholders in Corporations.—At common law, a stockholder, being interested in the event of the litigation, was not allowed to testify, generally, in favor of the corporation.</p> <p>2. Same—Objections to be Made in Apt Time.—Where the testimony of a disqualified witness is given in the form of depositions, and no objection interposed at the time, nor in the court at any time preceding the trial of the cause, such objection at the trial only, is ineffective, for the reason that a failure to make it before-that time operates as a waiver of the objection.</p> <p>3. Limitations — New Promise—Statements to Strangers.— Statements made to a stranger, and not to the party claiming the indebtedness, do not waive the statute of limitations to a debt barred by it.</p>

<p>Action in Case, for fraud and deceit. Appeal from the Circuit Court of Pike County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Tenants in Common—Liability for Rents.— In the absence of fraud and want of ordinary diligence, the accounting of rents between tenants in common should be upon the basis of the rents actually received.</p> <p>2. Same—The Theory of Liability for Rents.—The theory of the liability of tenants in common for rents, proceeds upon the fact of a certain fiduciary relation imposed upon the parties where one or more of the tenants in common assume to represent all the interests by possession, and this partakes of a mixed aspect in legal contemplation; and where, in the absence of fraud and want of ordinary diligence, it may be presumed that those accepting the liability will, by acting in their own interests, enhance that of the others.</p> <p>3. Interest—Must Be Claimed in the Court Below.—A claim for interest upon the amount of rents claimed to be due to a tenant in common in a partition suit must be made in the court below. It can not be raised for the first time in the Appellate Court.</p>

<p>Action in Case, for selling diseased animals. Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Foreclosure.—Appeal from the Circuit Court of Morgan County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Action for Alienating a Husband’s Affections.—Appeal from the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Harmless Error—Declarations of Deceased Persons.—In an action against an administrator to recover the value of services rendered for a deceased person it is error to admit in evidence declarations' of the deceased, made shortly prior to her death, as to her intentions in leaving a portion of her property to the plaintiff. Such matter is foreign to the inquiry, but in this case the court does not think that it is so seriously prejudicial as to call for a reversal of the judgment.</p> <p>2. Books of Account—Foundation for Their Introduction in Evidence.—It is error to admit in evidence an account kept by a deceased person showing amounts of cash paid, etc., without the proof required preliminary to the introduction of a book account.</p>

<p>Citation in Probate.—Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the November term, 1899,</p>

<p>Assumpsit, for goods sold. Appeal from the County Court of Moultrie County; the Hon. John D. Purvis, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1899.</p>

Bill to Prevent a Forfeiture of an Insurance Contract.—Trial in the Circuit Court of McLean County; the Hon. Robert B. Shirley, Judge, presiding. Decree dismissing the bill; error by complainant. Heard in this court at the November term, 1809.

<p>1. Res Adjudicata—Former Appeals.— When the questions presented on a second appeal of the same case are identical with those adjudicated when the case was formerly before us, the law of the case as announced in the former appeal, controls.</p>

<p>Assumpsit.—Error to the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Mines and Miners—Willful Failure to Have the Mine Examined. —If the operator of a coal mine employs an examiner holding a certificate from the State Board of Examiners authorizing him to act as such, and the examination of the mine is made at the time required by law, it will constitute a compliance, so far as the operator is concerned, with the provisions of Section 4, Chapter 93, 2d Starr & Curtis’ Annotated Statutes, 2719.</p>

<p>Assumpsit, for services. Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the November term,1899.</p>

<p>Partition.—Appeal from the Circuit Court of Greene County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Bill for Subrogation and Contribution.—Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge, presiding.' Heard in this court at the November term, 1899.</p>

<p>I. Marriage Contract—Sexual Intercourse no Excuse for a Refusal to Perform.—If a man after engaging to marry a woman has sexual intercourse with her he can not for that reason break off the engagement and take advantage of his own wrong.</p>

<p>1. Judgment Notes—Power of a Surviving Partner to Give in the Name of the Firm.—A surviving partner has no power to give a note and power of attorney to confess judgment in the name of the firm, and a judgment confessed upon such a note and power is void as to the estate of the deceased partner, but is valid as to che partner who did execute them.</p> <p>2. Same—Valid as to the Surviving Partner—Satisfaction.—A judgment confessed upon a note and warrant of attorney executed by a surviving partner, although void as against the estate of the deceased partner, may still be satisfied out of the partnership assets.</p> <p>3. Partners —Suits at Law Against Surviving Partners.—Where one of two partners dies, suits at law must be against the surviving partner, and in the event of recovery satisfaction can be obtained out of the partnership property.</p> <p>4. Same—Duty of Survivors. —The law makes it the duty of a surviving partner to take exclusive possession of the effects of the partnership property, to pay its debts out of such property and to settle its business. He is invested with large discretion in settling up the affairs of the partnership.</p> <p>5. Same—Execution Liens of Judgment Creditors.—The execution lien upon the partnership assets of a judgment creditor who, in the absence of fraud, obtains judgment by confession against a partnership upon warrant of attorney signed by the surviving partner in the firm name, is equal to the execution lien of a creditor who obtains his judgment after a summons and trial.</p> <p>6. Preferences—Right of Insolvent Debtors. —The right of an insolvent debtor to prefer one creditor over others can only be exercised as to the amount due.</p> <p>7. Insolvent Debtors—Right to Give Judgment Notes— An insolvent debtor has no right to give a judgment note which provides for the collection of ten per cent additional, as an attorney fee for the preferred creditor. Such a provision is a mere gift, and fraudulent as to other creditors.</p> <p>8. Same—Conveyances Without Consideration.—When an insolvent debtor, voluntarily and without consideration, executes a conveyance or gift, his act in so doing, as to.existing creditors, is fraudulent and void, regardless of whether the donee had knowledge of his insolvent condition.</p>

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Insurance—Waiver of Proofs of Loss.—Where an insurance company denies its liability, it waives proof of loss or defects in proofs already furnished and suit can be brought at once without such proofs.</p> <p>3. Same—Waiver of Conditions in the Policy.—Where an insurance company denies its liability for a loss under the policy such denial operates as a waiver of a provision requiring the policyholder to furnish a certificate of a magistrate or notary public stating that he had examined the circumstances of the fire and believed that the insured had honestly sustained loss.</p> <p>8. Proposition of Law—Musi be Submitted in Apt Time.—Propo- ' sitions of law not submitted to the court until after the decision has been rendered come too late.</p>

<p>1. Judgments—Power of the Court to Enter Nunc pro Tunc, at a Subsequent Term.—A court is powerless to enter a judgment nunc pro tunc, as of a former term, when in fact no such judgment was then ordered.</p> <p>2. Same—What is Not a Judgment.—The words “ Judgment on attachment and on claims for $414.50 and costs of suit," do not constitute a judgment. They amount to no more than a finding, a minute from which a judgment may be written.</p>

<p>I. Res Ad judicata—Former Decisions.—In all material points this cause is like Birdsell Manufacturing Company v. Independent Fire Sprinkling Company (ante), and will be governed by the same.</p>

<p>Action in Case.—Death from negligent act. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Negligence— When One of Two Persons Must Suffer.—When a loss must ensue in consequence of misleading appearances the loss in equity will be visited upon the party suffering such appearances to exist and not upon innocent persons who have been misled by them.</p> <p>2. Decrees—Must be Supported by the Evidence.—A decree which is not supported by .the evidence will be reversed.</p>

<p>Replevin.—Appeal from the Circuit Court of McLean County. The Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Mandamus.—Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the November term, 1899."</p>

<p>1. Interpleader—Requisites of the Bill.—The essential requisites of a bill of interpleader are (1), that the same thing, debt, or duty, is claimed by both or all of the parties against whom the relief is demanded; (2) that all the adverse titles or claims be dependent, or be derived from a common source; (3) that the person asking for the relief do not have or claim any interest in the subject-matter; (4) that he stand perfectly indifferent between those claiming the thing, debt or duty, being in the position purely of a stakeholder.</p>

<p>Action Under the Dram-shop Act.—Error to the Circuit Court of Cass County; the Hon. Thomas Mehan, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Sales—0/ Growing Crops—Delivery of Possession—Fraud.—The sale of a growing crop standing in the field, where the possession is permitted to remain with the vendor, -is fraudulent per se, and void as to creditors and subsequent purchasers.</p>

<p>Assumpsit.— Consolidated common counts. Error to the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Injunctions—To Restrain the Collection of a Judgment.—Where a party invokes the aid of a court of equity to restrain the collection of a judgment regular upon its face, he must show something more than defective service of summons upon the person of the defendant. He must also show either that, the defendant had a good defense to the claim upon which the judgment was founded, or that the amount of the judgment is excessive.</p> <p>2. Same— Application of the Rule.—This rule applies not only where the application is made by the debtor claiming not to have been served with process, but also where the application is made by a creditor or other third party.</p> <p>3. Venue—Waiver of the Right to he Sued in Defendant's County.— The statute which prohibits the suing of a party out of the county where he resides or may be found, nterely confers a privilege on him which he may avail himself of, if he chooses. If he does not avail himself of it by proper pleas in apt time, he will be regarded as having waived it.</p> <p>4. Damages—When Not Allowed on Dissolution of Injunction.—The rule requiring written suggestions to support an order for damages on the dissolution of an injunction has no application to a suit for the single purpose of enjoining the collection of a judgment.</p> <p>5. Same —When Suggestions in Writing Are Unnecessary.—When the sole and only purpose of a suit is to enjoin Jie collection of a judgment, it comes within the provisions of sections 4 to 8 of chapter 69, R. S., and the amount enjoined furnishes the extent of the claim for damages. and when that appears on the face of the bill, no written suggestions are necessary.</p>

<p>Bill to Have a Deed Declared a Mortgage.—Appeal from the Circuit Court of Douglas County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the November term, 1899.</p>

Assumpsit, for money had and received. Error to the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the November term, 1899.

Assumpsit, for compensation and subsistence while acting as a special deputy sheriff; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the November term, 1899.

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Sellar, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Practice—Release in Bastardy Proceedings.—Where the defendant in a bastardy suit makes a motion to dismiss the proceedings upon the ground of a settlement with the complainant and a release from her, and she resists the motion, it is the duty of the court to deny the motion, make up an issue as required by law, and put the defendant upon trial, leaving him to plead the release, etc.</p>

<p>1. Innocent Grantees—Who Are Not.—Those who fail to place their deeds upon record are not innocent grantees as to those whom the grantor has induced to give him credit upon his claimed ownership of the property.</p> <p>2. Debtor and Creditor— Right to Rely upon the Record.—Creditors have a right to rely upon the condition of the title as shown by the record, and upon the representations of a party that he is the owner, and in the absence of evidence indicating knowledge of another’s title, they have the legal right to give credit to the former under the belief that he is the actual owner.</p> <p>3. Husband and Wife—Right of Married Woman to Contract with Her Husband.—Under the laws of this State a married woman has a right to contract with her husband, and the wife has a right to receive payment of her debt the same as a feme sole, and a creditor has a right to pay any debt in full to the exclusion of other claims, even if such creditor is his wife.</p> <p>4. Negligence—When One of Two Innocent Parties Must Suffer.— Where loss must ensue by reason of negligence, the person who is in fault should suffer the loss.</p> <p>5. Costs—In Chancery in the Discretion of the Court.—In chancery suits, costs are in the discretion of the chancellor.</p>

<p>Replevin.—Appeal from the Circuit Court of Christian County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Replevin.—Appeal from the Circuit Court of McDonough County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the November term, 1899.</p>

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

<p>I. Verdicts — When Properly Directed for the Defendant.— Although there may be evidence to support the plaintiff’s case, yet when it is so far insufficient to support a verdict in his favor that the same, if returned, must be set aside, the court may properly direct a verdict for the defendant.</p>

Action in Case.—Loss of live stock shipped by express. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1899.

<p>1. Contributory Negligence—A Bar to a Recovery for Personal Injuries.—For the plaintiff to recover for personal injuries in a railroad accident it must appear that he was in the exercise of ordinary care at the time of the accident. Although the evidence may show that the defendant was guilty of negligence, if it appears that the plaintiff’s negligence concurred in producing the injury, there can be no recovery.</p>

<p>Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Sellar, Judge, presiding. Heard in this court at the November term, 1899.</p>

Action in Case, under the dram-shop act. Error to the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1899.

<p>1. Practice—Abatement—Local Actions.—Section 2 of the practice act, providing that it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides, or may be found, except in local actions, confers a privilege upon the party sued, which he will be presumed to have waived unless he insists upon it by notice or plea in abatement.</p> <p>2. Verdicts—Conclusive upon Questions of Fact.—Where the evidence is conflicting upon the issues of fact, the Appellate Court will accept the verdict of the jury, with the approval of the trial judge %vho heard and saw the witnesses, as decisive of these questions.</p>

<p>Replevin.—Error to the Circuit Court of DeWitt County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Ordinary Care—Railroads in Course of Construction.—In an action for personal injuries received by a switchman while in the employ of a railroad in the course of construction, an instruction that if the road at the point where the injury occurred, was, at such time, at that period of construction usual and customary in roads under good management, the plaintiff could not recover is proper, and its refusal where the point is not sufficiently covered by other instructions is reversible error.</p>

<p>Mandamus.—Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Instructions—Oral, by Agreement.—Upon the trial of a cause by jury, the presiding judge said in the presence of the parties that “ if agreeable, he would instruct the jury orally;” there was no objection, and he did so. As there was no reversible error in the instruction given, it was held proper.</p>

<p>Mechanic’s Lien.—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>

<p>1. Appellate Court Practice—Bill of Exceptions—What it Must Show.—A bill of exceptions must show that the party either excepted to the finding of the court, or made a motion for a new trial.</p> <p>3. Same—Motion for a New Trial—How Made a Part of the Record. —The certificate of the clerk does not make the motion for a new trial a part of the record; the law requires the certificate of the judge and not of the clerk, to that fact.</p>

<p>1. Garnishment—Nature of the Proceeding.—Garnishment is a proceeding at law in which the garnishor is not entitled' to recover unless the judgment debtor could recover a judgment against the garnishee in a suit at law prosecuted by him personally, and in his own right.</p> <p>2. Jurisdiction—Of the Appellate Court When a Jury Has Been Waived.—The Appellate Court has jurisdiction to review a case upon the merits when a jury was waived and the cause submitted to the court below for trial, although no propositions of law were submitted to the trial court for its holdings thereon.</p>

<p>Action in Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Master and Servant—What the Servant Must Show in Order to Recover.—In order to recover for defects in the appliances of the business the servant must establish by proof three propositions: First, that the appliance was defective; second, that the master had notice or knowledge thereof, or should have had; third, that the servant did not know of the defect, and had- not equal means of knowing with the master.</p> <p>3. Personal Injuries—The Result of a Mere Accident.—If, the injury is the result of a mere accident the plaintiff can not recover therefor.</p>

<p>1. Instructions—Excessive Caution on Part of Master, When the Servant has Knowledge of His Peril.—Where an injured person had worked for about three months at the same kind of work, and must be chargeable with the common knowledge of the perils incident to it, it is error to charge the jury that the duty of knowing and informing the servant of a hazard that he knew as well as the foreman did, was incumbent upon the master, without the exercise of any correlative duty or care upon the part of the servant.</p> <p>2. Same—Employer and Workman—Erroneous and Mischievous.— An instruction that the giving of an order, generally, to go to work and do something that is a part of the general work on hand, which is not in the doing of it an_ increase of the hazard of the general job, implies an assurance to the servant that there is no danger in the doing of it, irrespective of how the servant may perform what he is told to do, is not good law in the abstract, and as applied to the evidence in this record, was erroneous and mischievous.</p>

<p>Creditor’s Bill.—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>

<p>1. Receiver—In Mortgage Foreclosure.—Ordinarily in foreclosure proceedings a receiver will not be appointed unless the mortgaged premises are insufficient security for the debt, and the party personally liable for the debt is either insolvent or of very questionable responsibility.</p> <p>2. Same—Power to Lease Premises.—A clause in an order appointing a receiver in a foreclosure proceeding giving him power to lease the -premises for a term not exceeding a year, for such rentals “ as he shall deem advisable and just,” without notice to the mortgagor or holder of the legal title, and without an order of court made upon notice allowing an opportunity to be heard, is too broad. If it were in the power of the receiver to lease at will, if the debt should be paid or redemption undertaken, injustice might be done.</p>

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

<p>Assumpsit, on an insurance policy. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Mortgages—Priority Between Two Slade by Same Mortgagor upon Same Premises and Filed for Record on Same Day.—As between two mortgages made by the same mortgagor upon the same premises, and filed for record on the same day, the one filed first will have priority over thejother.</p> <p>3. Same—Exception to the Rule.—The rule stated, can only be overcome by finding that on the day the mortgages were recorded there existed an indebtedness to support one mortgage and that none existed to support the other.</p>

<p>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>Creditor’s Bill.—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. Accobd and Satisfaction — Requisites of.— To constitute an accord and satisfaction of a claim unliquidated and in dispute, it is necessary that the money should be offered in satisfaction of the claim, and the offer accompanied with such acts find declarations as amount to a condition that if the money is accepted it is to be in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that if he takes it he takes it subject to such condition.</p>

<p>Bastardy Proceedings.—Appeal from the Criminal Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>Error to the County Court of Cook County; the Hon. Wales W. Wood, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Appellate Court Practice—Where No Question of Law is Presented for Determination.—In cases where a jury has been waived and the cause submitted to the judge for trial, it is only where some ruling of the court upon propositions of law submitted to it, or upon other questions of law arises upon the trial—such as the admissibility or rejection of evidence, etc.—that the Appellate Court can inquire or examine into the correctness of the law upon which the case was decided.</p> <p>2. Same—Presumptions. —W here a case is submitted to the court for trial without a jury and no propositions of law asked, or where the trial is by jury and no instructions given, it will be assumed that no mistake of law was made at the trial, and that the finding or verdict is right, unless it is so manifestly against the evidence that it ought not to stand.</p> <p>3. Same—Force and Effeet of the Finding of the Trial Court.—In determining whether there is error upon the facts, the finding of the court has all the force and effect of the verdict of a jury and .will not be disturbed unless for reasons sufficient to set aside a verdict.</p>

<p>Trespass on the Case.—Appeal from the Circuit Court of Cook County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>DeM, on replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

Assumpsit, to recover a subscription to the capital stock of a corporation. 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>Foreclosure.—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>1. Pleading and Proof—Recovery of Money Paid Out as Consequential Damages.—To recover money paid out by a city in satisfaction of judgments for damages caused by the construction of a viaduct over the tracks of a railroad company at the intersection of streets, the city must allege and prove facts by virtue of which it may appear as a matter of law that the damages were in some way directly or indirectly inflicted by reason of the railroad’s conduct, and this evidently must require special allegations from which the court may, on demurrer, if need be, determine as a matter of law from the facts alleged, whether any such legal obligation exists.</p> <p>2. Pleading— Where the Common Counts Will Not Suffice.—The common count is not a sufficient declaration for the recovery of money paid by a city in satisfaction of judgments recovered against it for damages caused by the construction of a viaduct over the tracks of a railroad at the intersection of streets. There must be specific averments to warrant the admission of evidence of the character required and for the purpose under consideration.</p> <p>8. Same—Where the Common Counts Are Not Sufficient.—Where it is sought to recover under an implied assumpsit, based upon the nonperformance of an alleged legal duty, the gist of the controversy is not a contract from which might arise an implied promise, but the existence of the duty.</p>

<p>1. Instructions—On Conflicting Evidence.—Where there is a positive and irreconcilable conflict in the evidence, the instructions to the jury should be strictly correct.</p>

<p>Suggestion of Damages, on the dissolution of an injunction. Appeal from the-Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the Márch term, 1899,</p>

<p>1. Liens—Priorities—Receiver's Charges and Prior Mortgage Liens. —The Circuit Court of Cook County sitting in chancery has no power to adjudge that the charges of a receiver are paramount to the lien of a prior mortgage.</p> <p>3. Same—Priorities—Railroads Charged with a Duty to the Public— Exception to the Doctrine.—-Railroads and other business properties charged with a duty to the public superior to private obligations, of which the mortgagee at the time of his investment is charged with knowledge that his security is liable to be displaced in favor of the superior obligation, are exceptions to the rule.</p> <p>3. Estoppel—Does Not Apply to a Mortgagee Standing By, etc.—A mortgagee of private property who stands by and sees the owner or a receiver appointed in a suit to which he is not a party, care for and improve the mortgaged property, can not be said to do so at the peril of having his lien displaced in favor of the cost of such care and improvement.</p>

<p>Foreclosure &emdash;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>Assumpsit, on a contract in writing. 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>1. Street Railways—Duty in Using the Streets.—It is the duty of individuals and corporations, operating cars or other means of conveyance, the use of which experience shows to be a source of danger in city thoroughfares, to be on the lookout themselves and to carefully respect the equal rights of others.</p> <p>2. Contributory Negligence—A Question of Fact.—The question of contributory negligence is one of fact for the jury.</p> <p>3. Negligence—A Question of Fact.—It is a question of fact, in this case, whether a mother was justified in believing that she could rescue her child from an approaching cable car without danger to herself, and if she was justified in so believing, it was not negligence to make the effort.</p>

<p>1. Courts of Chancery—Poiver to Conserve the Estate of a Lunatic. —It may be regarded as well settled in our State that the power exists in a court of chancery to conserve the estate of a lunatic when such action is necessary.</p> <p>2. Lunatics—For What Purpose Suits May he Maintained hy a Next Friend.—A suit may be maintained by a next friend for the purpose of protecting the estate of the lunatic, through a receivership, until, a conservator can be appointed to act for him.</p> <p>' 3. Parties—Bill to Avoid the Deed of an Insane Person.—The person who brings a bill to avoid the deed of an insane person, must have power to act for such person and bind him and his estate.</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. Release of Errors—In Wan-ant of Attorney to Confess Judgment.—A release in a warrant of attorney to confess a judgment and a cognovit expressly releasing all errors intervening in entering the judgment is conclusive against the defendant, unless for lack of jurisdiction in the court to enter the judgment, or of lack of power under the warrant to confess it.</p> <p>2. Judgments by Confession—Motions to Vacate.—A. motion to vacate a judgment entered by confession, is an appeal to the equitable jurisdiction exercised by courts of law over judgments by confession, and where such equitable jurisdiction is invoked, a judgment by confession will not be set aside except for equitable reasons made to appear.</p> <p>3. Infants—When Not to be Relieved, from Their Contracts.—Where an infant, engaged in business on his own account, gave a judgment note for a small balance remaining due and unpaid of large dealings, running through several years, upon which judgment was entered, made a motion to vacate the judgment upon the ground that an infant is not liable upon his contracts, but made no offer to pay the balance due upon the amount, and asked the application in his behalf of the rule of law of non-liability for his contracts, the court below properly refused to vacate the judgment.</p>

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

<p>Debt, on bond. Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1899.</p>

<p>Assumpsit, for services of an architect. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

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

<p>Assumpsit, for commissions. 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>Creditor’s Bill.—Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1899.</p>