Volume 88 — Illinois Appellate Court Reports

<p>Assumpsit.—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>1. -Personal Injuries—Liability of a Lot Owner.—The mere fact that- a person is the owner of a lot upon which a building is in course of construction does not render him liable for an injury that befalls another who may be at work upon such building. f</p> <p>2. Saxe—Theory upon Which the Liability Rests.—All liability for a wrong, or injury, sustained through the negligence of a defendant, •rests upon the theory that the defendant has committed some wrong or neglected some duty, from which the injury complained of has resulted, either directly or as a natural consequence, without the fault of the other.</p> <p>3. Independent Contractor— Who is—Definition.— An independent contractor is said to be “ a contractor pursuing an independent eniployment, and by the terms of his contract is free to exercise his own judgment and discretion as to the means and appliances that he may see proper to employ to do the work, exclusive of the control and direction in this respect of the party for whom the work is being done,</p> <p>4. Building Contracts—Construction of.—Where a building contract merely reserves the right of inspection, without the power to control the doing of the work, as where it provides tliat the work is to be performed under the direction and to the satisfaction of the architects, acting as agents of the owner, and to his satisfaction, it gives the owner no power to control the contractor in the choice of his servants; it does not interfere with the right of the contractor to make his own selection.</p> <p>5. Res Ipsa Loquitur— Where the Doctrine Does Not Apply. —Where a person is at work upon a building under a contract, not with the owner of the lot, but with other persons who control the building for the purposes of construction, and the building collapses and he is injured from a cause consistent with due care upon their part, the doctrine res ipsa loquitur has no application.</p>

<p>Foreclosure.—Error to the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Equity Practice — Exceptions and Objections to the Master's Report.—Objections to a master’s report should be made before the master, before the report is returned into court, and should point out the grounds of objection with reasonable certainty. The exceptions filed to the report, after it is returned into court, should correspond with the objections made before the master.</p> <p>2. Appellate Court Practice— What Is Sufficient to Warrant an Affirmance.—The fact that no objections to the report were filed before the master is sufficient to warrant an affirmance of the decree.</p>

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

<p>1. Pleading—Effect of Admission in.—Under our system of pleading, the defendant may plead as many pleas as he deems necessary for his defense, however inconsistent they may he, and an admission made by any one plea can not bo used against him upon an issue made by another plea.</p> <p>2. Same—Illustration of the Rule.—If a defendant pleads the general issue and a special plea in confession and avoidance, the latter plea necessarily admits that the plaintiff has prima facie a cause of action, but the plaintiff can not use this admission as evidence; he must prove his cause on the issue made by the plea of general issue, as if there were no special pleas.</p> <p>3. Promissory Notes—Not Negotiable.—A note, with the statement on the face. “ This note is non-negotiable,” is a non-negotiable instrument, and while it can, notwithstanding that fact, be transferred to a third party so as to vest him with the legal title, he can only take it subject to the then existing rights of the maker and such other rights as might accrue prior to his receiving notice of the transfer.</p> <p>4. Set-Off—Nature of the Plea.—A plea of set-off is in the nature of a cross-action, and the same principles apply as in the case of an original suit on the claim pleaded as a set-off.</p>

<p>1. Remedies—When at Law and Not in Chancery.— A 'chancery court will never lend its aid where there is an adequate remedy at law.</p> <p>2. Same—Application of the Rule. — On July 20, 1898, a party filed a bill in chancery for the purpose of perpetually enjoining the collection of two judgments obtained against him before a justice of the peace, without his knowledge, on June 20, 1898. It was held that his proper remedy was by certiorari, and that there was no jurisdiction in a court of chancery.</p>

<p>1. Bill of Exceptions— Must be Under Seal.—A bill of exceptions-must be under'the seal of the trial judge.</p>

<p>Action in Case, for personal injuries. 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>1. Limitations—Amendments to Declarations.—Where an additional count filed as an amendment to a declaration restates the same cause of action set out in the original declaration, it is not amenable to a plea of the statute of limitations.</p> <p>2. Pleading—What is Not Stating a New Cause of Action in an Amended Count.—Where a declaration by a father as administrator in an action to recover damages occasioned by the death of his son, alleged that the deceased “ left next of kin, namely his father,” that the action was brought under this statute for the father’s benefit, and the amended count averred that the deceased “ left surviving him other next of kin beside his father,” it was held not to state a new cause of action, but merely to enlarge the number of the beneficiaries.</p>

<p>1. Special Findings—Probative Foots—Where a probative fact is merely prima facie evidence of the fact to be proved, the proper deductions to be drawn from it present a question of fact and not of law, requiring further action by the jury; it can not be made the basis of any action by the court.</p> <p>2. Same—Presumptions in Favor of the Verdict.—All reasonable presumptions will be entertained in favor of the verdict, while nothing will be presumed in aid of the special findings of fact.</p> <p>3. Verdicts—And Special Findings Inconsistent.—The inconsistency between the verdict and the special finding must be irreconcilable, so as to be incapable of being removed by any evidence admissible under the issues.</p>

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

<p>1. Deposition—Signature of the Witness When Taken Before the Master,—Where the deposition is taken before the master and duly certified by him the signature of the witness deposing is not essential.</p>

<p>1. Verdicts—When Not to be Disturbed.—Unless the verdict and judgment are manifestly against the weight of evidence, the evidence being conflicting, they will not be disturbed by a reviewing court.</p> <p>2. Instructions—Equal Right to Use 'Streets.—In an action for personal injuries an instruction which tells the jury that both plaintiff and defendant were equally in the position of right to use the public thoroughfares upon which the plaintiff was driving and the defendant was operating its cars, which right they held and enjoyed independently of each other, and that each should exercise ordinary care in the use of the street, is proper, when considered in connection with the testimony in this case.</p> <p>3. Same—Measure of Damages, eta.—In an action for personal injuríes an instruction which tells the jury that in determining the amount of damages which the plaintiff is entitled to recover they have a right to take into consideration all the facts and circumstances in evidence before them, and may consider the nature and extent of plaintiff’s injuries, his bodily pain and suffering resulting from such injuries, the permanent disability, the money necessarily paid by him in and about endeavoring to be cured of said injuries, and any future bodily pain or suffering, or future inability to labor or transact business, that the jury may believe from the evidence he will sustain as the necessary and direct result of his injuries is proper when considered in connection with the evidence in this case.</p>

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

<p>1. Corporations—Liability of Persons Pretending to be Incorporated.—Where persons use the name of a corporation for conducting a business and pretend to be a corporation without complying with the provisions of the act concerning corporations, they bring themselves within the provisions of Sec. 18, Chap. 32, R. S., entitled “ Corporations,” and are jointly and severally liable for all debts and liabilities made by them and contracted in the name of the pretended corporation.</p>

<p>. Indictment, for.keeping a gaming house. Error to the Criminal Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Hoard in this court at the October term, 1899.</p>

<p>1. Easements—Breach of Covenant.—The existence of an easement such as that described in the declaration in this case is a breach of the covenant against incumbrances.</p> <p>3. Pleading—Defined.—Pleading is the statement in a logical and legal form, of the facts which constitute the plaintiff’s cause of action, or the defendant’s ground of defense.</p> <p>3. Declarations—References to Decisions.—A reference to the decision of the Supreme Court in the declaration is not a reference to the opinion, but is at most a reference to the record of that court, and the opinion is no part of the record.</p> <p>4. Surplusage—Opinions Set Out in the Declaration.—An opinion set out at large in the declaration is surplusage.</p>

<p>Bill for an Accounting.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Construction of Contracts—Acts and Statements of the Parties.—The acts and statements of the parties so far as they are indicative of the construction which they themselves place upon their contracts may be resorted to for the purpose of determining the true meaning of written agreements; and where the contract is understood by one of the parties in a certain sense with the knowledge and assent of the other party, then it is to be so construed, provided it can be done without making a new contract for the parties.</p> <p>2. Sales—Delivery to a Common Carrier for Conveyance to the Purchaser.—The delivery of goods to a common carrier for conveyance to the purchaser or to a place by him designated is as a general rule a delivery to the purchaser.</p>

<p>1. Practice—Withdrawing a Plea Puis Darrein Continuance.—A plea puis darrein continuance supersedes all other pleas and by operation of law has the effect to cause all other pleas to be stricken from the record, and the cause of action to be admitted and everything confessed, except the matter contested by the plea puis; but under the twenty-third section of the practice act, allowing amendments, a motion to withdraw it and to reinstate the plea of general issue is properly allowed.</p>

<p>Assumpsit, on a certificate of insurance. Appeal from the Circuit Court of Cook County: the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>Trespass for False Imprisonment.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>Debt, on a judgment. • Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tdthill, Judge, presiding. Heard in this court at the October term, 1899.</p>

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

<p>Action in Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, 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 the Branch Appellate Court at the March term, 1899.</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>

Action in Case, for damages from change of street grade. Appeal from the Superior Court of Cook County; the Hon. Marcus ILivanagh, Judge, presiding. Heard in this court at the October term, 1899.

<p>1. Waiver—Of the Essence of Time in a Contract—Forfeiture.— Where the conduct of the defendant in receiving past due payments, and in communications to the plaintiff, written and oral, made by his agents, was such as necessarily to induce in the mind of the plaintiff the conviction that the provision in the contracts making time of their essence, would not be insisted on, such a provision is temporarily waived, and reasonable notice must be given of an intention to resort to the strict terms of the contracts before a forfeiture can be declared.</p> <p>2. Same— Void Declaration of Forfeiture.—Where strict compliance with the terms of a contract as to times of payment has been waived, and no notice has been given of an intention to enforce these terms, attempted declarations of forfeitures are void, and of no effect upon the rights of the parties.</p> <p>3. Forfeiture— What is Not Sufficient as a Declaration of.—Where strict compliance with the terms of a contract as to times of payment has been waived, a notice that “unless you wish us to declare the contract forfeited, kindly call immediately,” is not sufficient, it being a mere suggestion of a possibility. The provisions as to time having been waived, a definite and specific notice is necessary.</p> <p>4. Rescission of Contracts—When by Mutual Assent.—If either party, without right, claims to rescind a contract, the other party need not object, and if he permits it to be rescinded, it will be by mutual assent.</p> <p>5. Same—When Neither Party Can Base Claim upon Contract.— Where each party has consented to a recission of a contract, neither can base a claim on it.</p> <p>6. Same—When Vendee May Recover Back Money.—A vendee of land may recover back money paid on his contract when the contract has been rescinded by the mutual consent and agreement of the parties.</p>

<p>1. Question of Fact—Speed of Trains and Ringing of Bell.—The matter of the speed of the train, the ringing of the bell and the contributory negligence of the plaintiff are in this case questions properly and peculiarly for the consideration of the jury.</p> <p>2. Ordinary Care—Question of Fact.—The question as to whether plaintiff was in the exercise of ordinary care for his own safety is properly submitted to the jury, and it can not be said that a finding by the jury that he was in the exercise of ordinary care, considering all the circumstances surrounding him at the time, is manifestly against the evidence.</p> <p>3. Harmless Error—Where There is One Good Count.—Where there is one good count about which there can be no question in the declaration, it is harmless error, if error at all, for the court to refuse to instruct the jury that the plaintiff can not recover under the other counts.</p> <p>4. Instructions—As to What is Negligence.—An instruction which tells the jury, in substance, that certain acts of the plaintiff, if they believe them proved, were negligence, is improper, because what was negligence is a question for the jury.</p> <p>5. Same—As to What Constitutes Due Care.—An instruction which tells the jury that certain acts of the plaintiff did not constitute due care on his part, is properly refused.</p>

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

<p>1. Master and Servant— When Master is Liable for Injuries to Servant.—Where the servant is injured while obeying the orders of his master to perform work in a dangerous manner, the master is liable, unless the danger is so imminent that a man of ordinary prudence would not incur it.</p> <p>2. Same—When Master Orders Servant to Dangerous Work.—The master is liable to a servant when he orders him to perform a dangerous work, unless the danger is so imminent that no man of ordinary prudence would incur it.</p> <p>3. Same—Relation of.—The master and servant are not altogether upon a footing of equality. The primary duty of the servant is obedience, and he can not be charged with negligence in obeying an order of the master unless he acts recklessly in so obeying. Whether he acted thus recklessly in obeying his master’s order, or whether, he acted as a reasonably prudent person should act, are questions of fact to be determined by the jury.</p> <p>4. Same—Question of Servant's Reckless Obedience, One for the Jury.—Even if the injured party knew that to do the work at the place and under the circumstances was dangerous, the question as to whether he recklessly obeyed the master’s order or acted as a reasonably prudent person would do, is for the jury to determine.</p> <p>5. Same—Employment of Inexperienced, and Incompetent Help, a Question of Fact for the Jury.—As to whether the master employed inexperienced and incompetent help to assist the servant in doing his work, or by the exercise of reasonable diligence should have known that the help so employed was inexperienced and incompetent, are questions for the jury.</p> <p>6. Fellow-Servants— Who Are. —To constitute fellow-servants they must either directly co-operate in the particular business so that they may exercise an influence upon each other promotive of proper caution, or their duties must be such as to bring them into habitual association so that they may exercise such influence upon each other.</p> <p>7. Instructions—Erroneous Definition of Felloiv-Servants.—An instruction which is liable to the construction that in order to be fellow-servants it is only necessary that they co-operate in the particular business in hand, without their duties being such as to promote proper caution, is erroneous.</p>

<p>1. Administration op Estates—General Rule in Relation to Covenants.—An administrator has no power to charge the effects of the estate of his intestate by any contract originating with himself: and his contracts, in the due course of administration, or for the debts of his intestate, render him liable de bonis propriis.</p> <p>3. Same— W7ie?i Administrator is Liable for Contracts Made.—If an administrator or guardian, in his representative capacity, make a contract or covenant which he has no right to make, and which is not binding upon the estate or ward, he is bound personally to make it good.</p> <p>3. Same— When Executory Contract of Administrator is His Personal Contract.—An executory contract of an executor or administrator, if made on a new and independent consideration, moving between the promisee and the promisor, is his personal contract, and does not bind the estate, in the absence of authority given by statute or by the will of the decedent.</p>

<p>1. Remedies—Election to Follow One is an Abandonment of the Other. —one chooses between two or more inconsistent remedies, the clection to follow one involves an abandonment of the other.</p>

<p>Action for Support.—Error to the County Court of Cook County; the Hon. John H. Batten, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.,</p>

<p>Assumpsit.—Consolidated common counts. Appeal from the Circuit Court of Cook County; the Hon. John C. Garver, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

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

<p>1. Landlord and Tenant—Landlord Not Bound to Keep Premises in Repair. —A landlord is not bound to keep leased premises in repair in the absence of an agreement by him to do so.</p> <p>2. Same—No Implied Contract that Real Estate Shall be Fit for the Purpose for Which it is Let.—Except, perhaps, as to letting a furnished house or apartment, there is no implied contract on the demise of real estate, that it shall be fit for the purposes for which it is let.</p> <p>3. Same— When Agreement to Repair is a Mere Gratuity.—The circumstance that defendant agreed to repair a porch after the upper rail was broken off, and after an accident to the plaintiff, did so, amounts to nothing but a gratuity upon her part, if she was under no original obligation to keep the' building in repair.</p> <p>4. Same—What is Not Sufficient to Malee the Landlord a Covenantor to Repair. —A landlord’s self-interest will prompt him to do many things to his property, during the term of a lease of it, to protect it from decay or injury, but his so doing does not make him a covenantor to repair.</p>

<p>Assumpsit, for wages.—Appeal from 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. Construction of Statutes—Eight Soar Lam.—Section 3 of the so-called eight hour law provides that the act shall not apply to or in any way affect labor or service by the year, month or week.</p> <p>2. Same—No Recovery for Extra Work Without Agreement 'Therefor —The mere fact that plaintiff .worked more than eight hours a day will not entitle him to recover extra compensation under the eight hour law, in the absence of an agreement therefor. A laborer whose employment comes within, the terms of the statute may refuse to work more than eight hours a day at his option, or insist as a condition precedent, if he does so work, that he shall be paid for the extra time. But the mere fact that he has voluntarily worked more than eight hours a day does not of itself authorize a demand for extra compensation under the act in question, unless it should appear that extra compensation was agreed upon, or was reasonably within the ■ contemplation of the parties at the time.</p>

<p>1. Garnishment—Execution Must First Issue and Be Beturned' Unsatisfied.—It is necessary to the validity of the subsequent garnishment proceedings, that an authorized execution shall first issue and be returned unsatisfied. Such an execution and its return unsatisfied, form the essential basis for the beginning of garnishment proceedings.</p> <p>2. Same—Nature of the Proceeding.—Proceedings by garnishment, under our statute, are in their nature supplementary to the judgment against the judgment debtor, and there can be no recovery in them against the garnishee unless the judgment debtor might, himself, maintain an action at law against the garnishee for whatever it is that the judgment creditor seeks to recover.</p> <p>3. Same—When It May Be Maintained.—Generally speaking, garnishment proceedings may be maintained in all cases where an ordinary suit at law would lie against the latter in favor of the judgment debtor.</p> <p>4. Same—Good Cause for Continuance.—As there can be no proper final judgment against the garnishee in the absence of a judgment against the principal debtor, it would seem that the pendency of an appeal from the judgment rendered by the justice, upon the deter-ruination of which such judgment depends, constitutes good cause for a continuance of the garnishee suit from time to time until the appeal shall be decided.</p> <p>5. Execution—Not To Be Issued upon Justice's Judgment in Civil Action until after Twenty Days, Except, etc.—No execution shall be issued upon a justice’s judgment in a civil action until after twenty-days from the date of the judgment, unless the party applying for the same, his agent, or attorney, shall make oath that he believes that the debt will be lost unless execution be issued forthwith. If such oath be made, then the execution shall be issued immediately and levied.</p> <p>6. Same—Presumptions as to Justice's Oath.—Where the transcript does not show what the oath was, but simply shows that on oath of plaintiff’s attorney the execution was ordered, the court will presume in aid of the transcript that the oath referred to was the oath prescribed by the statute.</p> <p>7. Same—Issued Within Twenty Days Does Not Deprive Parties of Bight of Appeal.— The issuing of an execution which may be sworn out within twenty days from the date of the judgments, shall not deprive either party of the right of appeal.</p> <p>8. Case—Defined.—Bouvier defines a “case” as being a question before a court of justice. Marshall, C. J., defined it as a subject on which the judicial power is capable of acting, and which has been submitted to it by a party in the forms required bylaw. Probably a “ case,” in legal parlance when a question before a court of justice is referred to, is ordinarily spoken of synonymously with a suit.</p> <p>9. Practice—Where Appeals from Justices are Dismissed,—In cases where an appeal from a justice’s judgment is dismissed, the warranted practice is to award a procedendo, and the procedendo writ is a command to the justice to proceed upon the judgment appealed from, as if the appeal had never been taken.</p>

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

<p>Assumpsit.—Common counts. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne. Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Practice—Dismissing' Fraudulent Suits.—While a collusive or fraudulent suit is still pending, the court will, at the suggestion of either party to the record, or a person in interest, or who may be prejudiced by the judgment, or even at the instance of a stranger who appears as amieus curice, or upon its own motion, dismiss such suit out of court.</p> <p>2. Pleading—Party Must State Facts Positively.—Where facts are within the knowledge of a party, he must state them positively in his pleadings.</p> <p>3. Same—Positive Statement of Facts with Additional Words “As Your Oratrix is Informed and Believes.”—Where allegations are made in the form of a direct and positive statement of facts, with the additional words “ as your oratrix is informed and believes,” it would seem that there is more than a simple averment of the complainant’s confidence in the truth of the representations, and they may be regarded as averments of the facts, together with a statement of the source from which knowledge of those facts was derived.</p> <p>4 Parties—When One Becomes a Quasi Party.—Where one shows an interest and asks to be heard, by the filing of his petition he becomes a quasi party.</p>

<p>1. Garnishment— General Rule as to Recovery.—The general rule is that a judgment creditor as garnisher can not recover from a garnishee anything which the judgment debtor could not himself recover. A garnishee proceeding based upon a judgment is a separate suit in the name of the judgment debtor for the use of the judgment creditor. The fact that the suit is for the benefit of a usee does not enlarge ol change the right of the nominal plaintiff as against the garnishee.</p>

<p>1. Contracts—Law of the Place Where Made and Indorsed Governs.—The law of the place of making and that of indorsing a contract will govern, and fix the liability of the several parties.</p> <p>2. Practice—Decision of the Higher Court When Case is Reversed and Remanded.—Where a case is reversed and remanded for a new-trial, and the evidence on such trial is different, the decision of the higher court is not binding upon the trial judge. It is not in this instance the law of the case under the new facts presented upon the second trial.</p> <p>3. Promissory Notes—Maker a Non-Resident of Illinois at Matwrity.—Where the maker of a note is a non-resident of Illinois at the maturity of the note, under the term of our statute, the holder is excused from showing any diligence in attempting to collect from the maker.</p>

<p>1. Instructions— When Evidence is Conflicting.— When the evidence is conflicting and the case is close as to the right of recovery, the instructions to the jury should be accurate.</p> <p>2. Contributory Negligence— Question for the Jury.—Whether or not the plaintiff was guilty of contributory negligence is a question of fact for the jury, and it is important that the jury in the determination of the fact should be properly and accurately instructed.</p> <p>8. Negligence— Child of Tender 'Years.—What would have been negligence on the part of an adult sufficient to preclude his recovery, does not necessarily constitute negligence on the part of a child of tender years, sufficient to prevent its recovery. The negligence of a child is to be measured by his age, capacity and intelligence, under the circumstances of the particular situation under consideration.</p>

<p>1. Practice—A Party Can Not Shift His Ground and Obtain Another Hearing for Purposes of Making a New Case.—If a party neglects to present a certain defense upon a former trial, and elects to ground his defense upon other matters, he can not afterward shift his ground and obtain another hearing for the purpose of making a new case. ,</p>

<p>1. Building and Loan Associations—Illegal Agreements to Mature Stoch.—An agreement between a borrowing stockholder and the secretary of a building and loan association that if such stockholder pays his monthly dues for five and one-half years his stock will be matured and his notes paid, is illegal under the statute of this State.</p> <p>2. Records— Modes in Which They Can be Proved in This State.— Records of the transactions of boards of directors may be proved in this State; first, by a duly certified copy thereof; second, by a copy thereof, proved to be such by a credible witness, and third, by the production of the original records.</p>

Action in Case, for maliciously suing out a writ of attachment. 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>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 March term, 1899.</p>

<p>Assumpsit.&emdash;Error to 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>Debt, on executor’s bond. Appeal from the Superior Court of Cook County; the Hon. John Barton Payne, Judge, presiding. Heard in the Branch Appellate Court at the March term,1899.</p>

<p>Indictment, for keeping a gaming house. Error to the Criminal 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. Common Carriers — Goods Shipped to One Person in Care of Another.—Goods shipped to one person, as consignee, in care of another, are to.be delivered to the consignee, and in case he can not be found, then to the one in whose care they are shipped.</p> <p>2. Same —Delivery of Goods to, Constitutes Receipt by'Purchaser.— Delivery of goods to a common carrier for conveyance to the purchaser or to a place designated by him, constitutes an actual receipt by the purchaser.</p> <p>3. Stoppage in Transitu—Remedy of Consignor after Delivery of Goods to the Carrier.—By the consignment and delivery of the goods to the carrier to be conveyed to the consignee, without condition or qualification, the property in the goods becomes vested in the assignee, and can be affected, so far as the consignor is concerned, only by the right of stoppage in transitu.</p>

<p>1. Corporations—Officers Can Not Take Advantage of Their Superior Knowledge.—Officers of corporations can not take advantage of their superior knowledge to the detriment of other creditors.</p>

<p>1. Verdicts—Recorded Verdict Governs.—It is the recorded verdict, and not the paper returned into court by the jury as their verdict, which denotes the finding of the jury.</p>

<p>1. Appellate Court Practice— When Objections Come Too Late.— An objection that a witness did not sign his deposition taken before the master comes too late in this court,</p> <p>2. Statutory Damages— When Appeals Are Prosecuted for Delay. —Where appeals are prosecuted for delay a motion for statutory damages may be granted.</p>

<p>Assumpsit.—Damages from loss of goods. 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>Action ill Case, for personal injuries. Appeal from 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. Evidence—Bulky Articles—How Preserved in flic Record.—Where witnesses are examined with reference to a machine known as a “ hair picker,” which, although present in the court room before the jury, was not offered in evidence, but was very fully described, so that its operation might be clearly seen and understood, it muse be regarded as before this court for the purpose of review as to points involving the sufficiency of the evidence to sustain the verdict and judgment.</p> <p>2. Same—Description of Bulky Articles Used in Evidence.—Where a physical object, admitted in evidence, is too bulky and cumbersome to be incorporated into or transmitted with the bill of exceptions, it would seem that nothing less than a complete description of such object will suffice; and until the court is better advised, it will hold that such a description is sufficient.</p> <p>3. Same—Sufficient Description of the Machine Referred to by Witnesses.—In the opinion, the court states the description of the machine in question, referred to as the “hah picker,” and holds it sufficient.</p>

<p>1. Practice—Withdrawing Evidence from the Jury.—Where there is any one essential allegation of a declaration which has no evidence to support it, it is the duty of the court to exclude from the consideration of the jury all the evidence in the case, or to charge the jury that there is no evidence to support the essential allegation, and for want of such proof to find for the defendant.</p> <p>3. Same—Motions to Exclude Evidence and to Instruct the Jury to Find for the Defendant Are in Nature of Demurrers to Evidence. — Where there is any one essential allegation of a declaration which has no evidence to support it, motions to exclude the evidence and motions to instruct the jury to find for the defendant, are in the nature of demurrers to the evidence, and admit not only all that the testimony proves, but all that it tends to prove.</p> <p>3. Same—W7iere Court May Direct a Verdict Against Party Holding Affirmative.—If there is no evidence before the jury, on a material' issue, in favor of the party holding the affirmative of that issue, on which the jury could, in the eye of the law, reasonably find in his favor, the court may exclude the evidence or direct the jury to find against the party so holding the affirmative; but when there is such evidence before the jury, it must be left to them to determine its weight and effect.</p> <p>4. Words and Phrases—*1 Evidence Tending to Prove."—“Evidence tending to prove” means more than a mere scintilla of evidence, but evidence upon which the jury can, without acting unreasonably in the eye of the law, decide in favor of the plaintiff, or the party producing it.</p> <p>5. Negligence—Constituting a Good Cause of Action. —Actionable negligence, or negligence which constitutes a good cause of action, grows out of a want of ordinary care and skill in respect to a person to whom the defendant is under an obligation or duty to use ordinary care and skill.</p>

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

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

<p>Mandamus.—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>Assumpsit, upon due bill.—Error to 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>

Indictment, for obtaining signature with intent to cheat and defraud. Error to the Criminal Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.

<p>Assumpsit, on contract. Error to the Superior Court of Cook County; the Hon. James G-oggin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Practice—In Appeals from Justices, Jurisdictional Papers to be Transmitted.—In appeals, all jurisdictional papers should be transmitted by the justice, such, for example, as a summons, where the jurisdiction of the justice depended upon the issuance and service of a summons, or a complaint in writing in a forcible detainer suit; for unless it appears affirmatively that the justice had jurisdiction, the court on appeal will have none.</p> <p>2. Summons—Function of.—The function of a summons is to bring the defendant into court and give the court jurisdiction over his person,</p> <p>3. Statutes—Sec. 68 of the Act of 1872 Not Repealed by Act of 1895 Revising Justice’s Act.—Section 68 of the act of 1872 was not repealed by the act of 1895, revising the justice’s act.</p> <p>4. Jurisdiction—• Upon What it Depends—Appeals.—An appearance by the defendant ten days before the term at which trial is demanded, or the service of summons upon him, or the equivalent of service as provided by the statute, must exist, or the court is without jurisdiction to do anything in the case, in the absence of and without the consent of either party, except to continue the cause. ■</p>

<p>1. Appeals—By Garnishees.—An appeal lies by a garnishee from a judgment in a proceeding by garnishment before a justice of the peace, and the Circuit Court, when the appeal is taken to that court, has jurisdiction, and must dispose of the same as in appeals in other cases.</p> <p>2. Same—From Justices—Trial to be De Novo.—On appeal from a justice of the p>eace the trial must be de novo, and the cause must be heard on the evidence and not on the transcript of the proceedings before the justice..</p> <p>3. Same—How to be Disposed of,—When an appeal from a justice of the peace is properly before the court to which such appeal is taken and the necessary service has been had, the court must hear the evidence on the trial, or if the appellant fails to prosecute his appeal the appellee may have it dismissed and the judgment of the justice affirmed.</p>

<p>1. Trustees—No Power to Receive Payment of the Debt Secured.— The fact1 that a person is made the trustee in a trust deed gives him no right or authority to receive payment of the debt secured by such deed.</p> <p>2. Payment—Made to an Unauthorized Person of No Avail.—Where the maker of a note secured by a trust deed intrusted his money to the person named in the deed as the trustee, for the purpose of paying the note, without requiring him to produce the note, which such maker had made payable to a third person, the fact that a fictitious note and trust deed were imposed upon him by the trustee, will not avail him as against the payee and owner of the note.</p> <p>3. Laches — Where One of Two Persons Must Sxiffer from Negligence. —Equity will not postpone the interests of one who stands fair and who has omitted no duty devolving upon him, to the interest of one whose negligence made the loss possible to occur.</p>

<p>1. Practice— Vacating Recognizances.—Where a recognizance, accepted in lieu of an attachment lien, is set aside by order of the court, and another recognizance entered and accepted, it is not error to treat the second recognizance as valid; the former recognizance, being set aside, becomes of no force whatever.</p> <p>3. Same—Attacking Rleas by Motions to Strike Off.—The practice of attacking pleas by motion to strike off, on the ground that they are sham pleas, was, at common law, based upon the obvious falsity of the plea, or upon some showing by affidavit accompanying the motion, by which it was made to appear to the court that the plea was so clearly false that it could not be treated as presenting any matter of substantial litigation.</p> <p>3. Same—Motions to Strike Off Not Applicable to Pleas Amounting to the General Issue.—The practice of attacking pleas by motions to strike off, upon the ground that they are sham pleas, has never obtained as to pleas which amount to the general issue.</p> <p>4. Pleas—Nul Tiel Record in Actions by Scire Facias upon a For-« felted Recognizance.—In an action by scire facias upon a forfeited recognizance the plea of nul tiel record puts in issue the record of the recognizance and is in effect a plea of the general issue; it can not be attacked by a motion to strike off.</p> <p>5. Appellate Court Practice—When Error Will Not Reverse.— Error will not reverse where the fact remains clear and beyond possible question that in the judgment appealed from not only has substantial justice been done, but a result has been reached which can not be changed upon another trial, and no other disposition of the matter upon its merits, different from the result reached, can be permitted. The Appellate Court will decline to reverse the judgment merely to send the cause back for needless and useless procedure.</p>

<p>Mechanics’ Liens.—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>

<p>1. Bill of Exceptions—Practice, Where Strieleen from the Files. —Where the bill of exceptions has been stricken from the files, and the errors assigned are all based upon matters therein contained, nothing is ’ left for the consideration of the Appellate Court.</p>

<p>Attachment.—Error in the Circuit Court of Cook County; the Hon. Bichard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>Action for Rent.—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>1. Corporations—Liability of Directors for Creating Debts Before the Organization is Complete.—In order to charge a director of a corporation with creating a debt or liability of the corporation, some affirmative voluntary act on his part with reference to the creation of the debt or liability, or at least some active participation in the particular transaction out of which the indebtedness arose, is necessary.</p> <p>2. Instructions—The General Buie in Giving.—If there is evidence which fairly tends to support a proposition of fact, the party in whose favor the fact would operate is entitled to an instruction as to the principle of law to which the fact relates.</p>

<p>1. Chancery Practice—Relief Must be Consistent with the Pleadings and Proofs.—In chancery proceedings the allegations of the pleadings as well as the proofs must be consistent with the relief granted.</p>

<p>1. Preferred Debts—0/ Servants and Laborers—When Property is put into Hands of a Receiver.—Where the property of a company, corporation, firm or person is put into the hands of a receiver, the debts owing to servants and laborers which have accrued by reason of their labor or employment, performed within six months next preceding the transfer of such property, to an amount not to exceed $50, are to be considered and treated as preferred debts. (Act of June 15, 1887.)</p>

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

<p>1. Insurance—Wager Policies—Void as Against Public Policy.— Where the insurance upon a person’s life is obtained by other parties, who pay the premiums and all expenses, and solicit him to make the application and attend to the details of the business upon an agreement and understanding as to the division of the money collected upon the policies, such policies are purely wager policies, against public policy, ■and void.</p> <p>2. Same—Good Faith Necessary.—Policies in life insurance companies held by persons having no insurable interest, must be obtained in good faith.</p> <p>3. Same—What is a Wagering Policy.—A policy taken out on the life of a third person by a beneficiary, in the continuance of whose life Such beneficiary has no pecuniary interest, is to be regarded as a wagering policy, and as such is void.</p> <p>4. Same—What is an Insurable' Interest.—To constitute an insurable interest there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary, or of blood or affinity, to expect some benefit or advantage from the continuance of the life of .the person insured.</p> <p>5. Fraudulent -Transactions—Court of Equity Will Not Lend Its Aid to Enforce.—A court of equity will not lend its aid in the enforcement of a division between parties of the spoils which result from unlawful transactions between such parties.</p>

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

A ction in Case, for personal injuries. Appeal from .the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1899.

<p>1. Rescission of Contracts—Duty of the Other Party—Where a contract has been rescinded by a party because of his inability to perform it, it is the duty of the other party, after receiving notice, to make the loss as light as possible.</p> <p>2. Same—Measure of Damages.—The measure of damages when a contract for the sale of goods is rescinded, is the difference between the market price or value of the goods at the time of delivery, and the contract price if the former was less than the latter.</p> <p>3. Same— Measure of Damages for Goods Not Yet Manufactured.—The measure of damages as to goods not yet manufactured in pursuance of a contract, when the party received notice of its rescission, is the profit which he would have made had the contract been fully performed.</p> <p>4. Same—Right to Sell the Goods after Notice Received.—A party has the right, after receiving notice that the goods will not be received, to sell them, making the sale in good faith and in the mode best calculated to produce the real value of the goods.</p> <p>5. Measure of Damages—After Rescission Contract Exists Solely as an Element in Estimating Damages.—After a party has elected to treat a notice of rescission as a repudiation of the contract, the contract is at an end for all purposes of performance, and exists solely for the purpose of bringing an action and as an element in estimating the damages.</p>

<p>1. Appeals—A Statutory Bight.—The right of appeal is statutory, and there must be a strict compliance with the statute in order to avail of such right.</p> <p>2. Same—Who May Take in Forcible Entry and Detainer.—The eighteenth section of the statute on forcible entry and detainer (Hurd’s Stat. 1899, 916) allows an appeal to any party who may feel aggrieved by the decision of the court upon a trial under the act, and provides that such party may. have an appeal to be taken to the same courts in the same manner and be tried in the same way as appeals are taken and tried in other cases.</p> <p>3. Bill of Exceptions—Office Of.—The office of a bill of exceptions is to introduce matter into the record which does not already appear there.</p>

Action, for Damages, by being bitten by a dog. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1899.

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Charles Q. Neely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>1. Practice— Opening and Close of the Evidence and Arguments.— The general rule is that the party holding the affirmative of the issue has the right not only to open and close the evidence, but also the arguments to the jury and the right is regarded as a substantial one and should always be treated as such.</p> <p>3. Same—AH Existing Defenses Must be Made.— All defenses existing before the judgment must be treated as having been adjudicated by the judgment and merged in it. To permit a prior existing defense to be shown against a Suit upon a judgment is to impeach the judgment, and is not permissible.</p>

<p>Covenant, for rent upon a lease. Appeal from the County Court of Cook County; the Hon. M. W. Thompson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>Replevin.—Appeal from the Circuit Court of Cook County; the Hon. Charles E. Fuller, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1899.</p>

<p>Mandamus.—To compel a judge to sign and seal certificate of evidence. Heard in this court at the October term, 1899.</p>

<p>1. Retal Decrees—Dissolution of an Insolvent Corporation.—A decree granting relief in a suit to dissolve an insolvent corporation, under the provisions of section twenty-five of the act concerning corporations, dissolving the corporation and retaining control of the assets, through a receiver, for their proper distribution, is a final decree.</p> <p>2. Appeals—Do Not Lie from Incidental Orders.—Parties can not, by an appeal from an incidental order which merely seeks to protect the assets of an insolvent corporation in the hands of a receiver, by restraining such parties from attempting to reach them through a proceeding in another court, attack the sufficiency of the proceeding which led up to the final decree dissolving the corporation, where no appeal has been taken from such decree.</p>

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

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

<p>1. Appeals—Order for Temporary Alimony.—An order for temporary alimony is appealable in this State.</p> <p>2. Scire Facias—To Enforce the Payment of Money.—Scire facias is a judicial writ founded upon a record, and when brought to enforce the payment of money, it must be for a specific sum, or perhaps in addition, interest or exchange as an incident to the debt.</p> <p>8. Same— Will Not Lie for Temporary Alimony.—A writ of scire facias will not lie for temporary alimony from the date of the process until the termination of the suit, where the amount claimed to be due has not been ascertained by the judgment of the court, nor rests in computation.</p> <p>4. Interlocutory Order—Not a Final Judgment.—An interlocutory order is not a final judgment and can avail nothing as a bar, or as evidence, until the judgment, with its verity as a record, settles finally and conclusively the questions at issue. ,</p>

Assumpsit, for work and labor and materials furnished. Appeal from the Superior Court of Cook County; the Hon. Axel Chytratjs, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.

<p>Action in Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heal’d in this court at the October term, 1899.</p>

<p>Bill to Set Aside Sale of Real Estate.—Error to 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>1. Innocent Purchasers—Who Are.—Parties who acquire goods under a chattel mortgage without any knowledge of their fraudulent acquisition by the mortgagor must be deemed innocent purchasers.</p> <p>2. Partners—When Parties Are Liable as.—Where par-ties hold themselves out to the community by acts or declarations as partners they will become liable as such, even if no partnership ever existed.</p> <p>8. Same—Acts Within the Apparent Scope of Partner's Authority. —It is á matter of no consequence whether a partner is acting fairly with his copartners in a particular transaction or not; if the act is within the apparent scope of his authority and professedly for the firm, his acts and representations are binding upon the firm in favor of the indebtedness of a third party.</p>

<p>Assumpsit.—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>1. Fraud—Party Defrauded Must Use Diligence to Disaffirm..—A person who has been defrauded to his injury must, as soon as he learns the truth, with all reasonable diligence, disaffirm the contract. If, after discovering the untruth of the representations, he conducts himself with reference to the transaction as though it were still subsisting and binding, he waives all benefits of, and relief from, the misrepresentations.</p>

<p>Assumpsit.—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>1. Receivers—Acceptance of a 'Lease by Implication.—II a receiver remains in possession beyond a reasonable time to make an election, he elects by implication to accept the lease, and becomes bound as receiver under its terms.</p> <p>2. Trustee—Bound Personally by His Contracts.—A trustee holding-property or administering a trust is bound personally by contracts he makes in that capacity.</p>

<p>Replevin.-—Error to the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

Order, striking from the flies a suggestion of damages. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.

<p>Dissolution of an Injunction.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Debtor and Creditor—Creditor Not Bound to Disclose JSvery Step Be Talces to Secure Payment.—A creditor is not bound to disclose to others dealing with the debtor, every step he may take to secure payment to himself.</p>

<p>Trover.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Rent—Of Premises Let for Gaming.—Where premises are used with the knowledge and acquiescence of the landlord for the purpose of gaming, the provision of the statute (Sec. 127 of the Criminal Code) precludes a recovery.</p> <p>2. Appellate Court Practice— Where the Record Fails to Present All the Evidence.—Where the record fails to present all the evidence the Appellate Court can not disturb the judgment upon the ground that the evidence fails to support the verdict.</p>

<p>Assumpsit.—Appeal from, the Superior Court of Cook County; the Hon. Axel Chyteaus, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Instructions—Erroneous, But Not Cause for Reversal.—Where an instruction in an action for rent, which tells the jury there could be no recovery under a certain count, is erroneous,.it should not reverse the judgment, where the plaintiff was clearly entitled to recover under that count after the termination of the lease and until the surrender.</p>

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

<p>Attachment.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1899.</p>

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

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

Action in Case, for damages, death from negligence, etc. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1899.

<p>Garnishment.—Appeal from the Circuit Court of Monroe County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>Assumpsit, to recover for keeping paupers. Error to the Circuit Court of Clinton County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>Trespass on the Case, for slander. Error to the Circuit Court of Hamilton County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>1. Insurance—Prima Facie Case.—Where the issues of fact substantially present the controlling questions in the case and the policy of insurance with proofs of loss is introduced by plaintiffs, a prima facie case is made.</p> <p>2. Same—Failure to Observe Clause in Policy Requiring Keeping of Books of Account, and Keeping Them in Fire-Proof Safe.—A provision in a policy for the keeping of books of account and for the keeping of them in a fire-proof safe is a reasonable one, and the insured having contracted by his policy of insurance to observe it, it was such a provision as was necessary to be fulfilled by him, and the failure to do so, with an intent to defraud the insurance, would result in the forfeiture of his contract of insurance.</p> <p>3. Same—What is Not a Breach of a Condition.—The accidental omission to put a small paper bound book in the safe, containing a part of an invoice, whose total is carried to the ledger, and when the stock of goods insured had been seen only eighteen days before by the agent effecting an insurance, is not such a breach of a condition in an insurance policy as will defeat the insurance.</p>

<p>1. Practice— Where Plaintiff Defaults.—It does not follow that because the plaintiff makes default in prosecuting his case, the defendant is entitled to judgment on the merits. What the defendant is entitled to is, that the suit shall be dismissed for want of prosecution.</p>

<p>Trespass, for taking coal. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1899.</p>

Assumpsit, on the certificate of a beneficiary insurance association. Appeal from the Circuit Court of White County; the Hon, Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1899.

<p>1. Exemptions— When a Wife is Not the Head of the Family.— Where the husband is an able-bodied man, twenty-four years old, and lives with his wife and child, apparently in the possession of all his faculties, farming her land, and receiving one-half the crops and sharing the losses, the fact that he does what he pleases with what he receives, or that she pays her own expenses when she travels, or that she owns the property and hires him to look after it, or all combined, do not destroy his legal relations as “ head of the family,” and do not show the wife to be the “ head of the family,” as that expression is used in the exemption act. •</p> <p>2. Instructions—As to When a Wife is the Head of the Family.— As to what in law constitutes the “head of the family,” is a mixed question of law and fact; the court should instruct the jury as to what is necessary to constitute a wife the head of the family when her husband is living with her and his family.</p> <p>8. Same—Should be Framed with Reference to the Circumstances of the Case.—Instructions should be framed with reference to the circumstances of the case on trial and not expressed in abstract and general terms, where such terms may mislead instead of enlightening the jury.</p>

<p>1. Limitations—Filing of Claims for Probate.—The mere filing of a claim for probate against the estate of a deceased person does not arrest the running of the statute of limitations.</p>

<p>1. Practice—Whew a Cause Should be Submitted to a Jury.—When the circumstances under which the plaintiff acts are complicated, and the general knowledge and experience of men do not at once condemn his conduct as careless, it is plainly the duty of the court to submit the case to the jury.</p> <p>2. Ordinary Care—Where the Facts Are Complicated.—Ordinary-care, in a case where the facts are complicated but not disputed, is peculiarly a question of fact, to be determined by a jury, under proper' instructions.</p> <p>3. Jury— When the Question of Negligence Should be Submitted.— Where the facts are admitted, but where a difference of opinion as to the inferences that may legitimately be drawn from them, exists, the question of negligence ought to be submitted to a jury.</p> <p>4. Negligence—Whether the Proximate Cause of an Injury.— Whether an act, assuming it to have been negligent, is the proximate cause of an injury, is a question of fact and should be submitted to a jury.</p> <p>5. Fellow-Servants— Where the Negligence of the Master Co-operates with that of the Fellow-Servant.—It the negligence of the master co-operates with the negligence of a fellow-servant, and so produces an injury, the servant injured may recover.</p>

<p>Mechanic’s Lien.—Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>1. Railroads—Z>nfy Toward Domestic Animals Running at Large— Fences.—The law prohibiting domestic, animals from running at large' does not relieve a railroad company from its duty under the statute to erect and maintain fences along the sides of its right of way, nor from liability, if the stock is killed or injured in consequence of its failure to observe that duty. Whether the owner is guilty of contributory negligence in permitting his stock to ran at large or in failing to maintain a sufficient fence to prevent their escape from his own premises, usually is not a question of law for the court, but a question of fact for the jury to determine from all the circumstances of the case as shown by the evidence.</p>

<p>Action in Case.—Death from negligent act. Appeal from the Circuit Court of Williamson County. The Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>Bill for a Lien.—Error to the Circuit Court of Randolph County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>Assumpsit, for breach of contract. Appeal from the Circuit Court of St. Clair County; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>1. Master and Servant—Performing Acts Knoum to be Dangerous by Direction. of the Master.—A servant, who, without objection, performs an act in obedience to the directions of his master, but which he knows to be dangerous, is not in the exercise of ordinary care for his personal safety, and can not recover for injuries received by him in the performance of such act.</p>

<p>Debt, on surety’s bond. Appeal from the Circuit.Court of Richland County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>Assumpsit, for breach of contract. Appeal from the Circuit Court of Wayne County: the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>Action in Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>1. Practice—Challenge of Jurors for Cause and Peremptorily.— The tendency of modern practice to submit the whole question of the qualifications or competency of the proposed jurors to the court has in in a great measure abolished the distinction between challenge for cause and peremptorily.</p> <p>2. ' Negligence—What is Equivalent to a Willful or Wanton Act.— What degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence itself, and in the nature of things is so dependent upon the particular circumstances of each case as not to be susceptible of general statement. It is such gross want of care and regard for the rights of others as to justify the presumption of willfulness or wantonness.</p> <p>3. Evidence—What is Admissible Under Allegations of Negligence. —Where the declaration is not based upon a statute or city ordinance, but consists of a general charge of negligence and willful and wanton conduct in the management of the car, all the attending facts and circumstances are proper to be given in evidence.</p>

<p>Debt, on executor’s bond. Appeal from the Circuit Court of Effing-ham County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>Assumpsit, on contract. Appeal from the Circuit Court of Jasper County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the August term, 1899.</p>

Action in Case, for killing domestic animals. Appeal from the Circuit Court of Wayne County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the August term, 1899.