Volume 89 — Illinois Appellate Court Reports

<p>1. Ordinary Care—May be Inferred, When.—In the absence of direct proof, ordinary care may be inferred from proof of the habits of the deceased.</p> <p>3. Testimony—When Statement of Witness is One of Fact and Not an Opinion.—"Whether one can see a train from a given position may-call for an opinion, if the person asked has never seen a train from such, a position, and is not entirely familiar with the position; but if be has-under such conditions seen a train, or is so familiar with the surroundings as to know that a train can be seen, his statement is a statement of fact and not an opinion.</p> <p>3. Instructions—Stating General Propositions of Law Not Disputed.—Instructions stating propositions of law which are not disputed or in any way called in question may not alone be cause for reversal, in all cases, but the giving of them should be avoided as serving no useful purpose, and as tending to direct the attention of the jury to issues not in controversy.</p> <p>4. Evidence—Of Cautious Habits of Deceased—Incompetent Where There Is an Eye Witness.—Evidence of the cautious habits of deceased is incompetent where there is an eye witness of the occurrence.</p>

<p>1. Counties— Contracts icith, How Made.—While the county board alone has power by law to bind the county by contract, it may, by resolution or vote, clothe committees or agents with power to act for it.</p> <p>2. Same—Power of Committees to Contrast.—When a board of supervisors legally passes a resolution to proceed to build a court house, appoints a building committee, and by another resolution empowers and fully authorizes such committee to carry out the resolution to build the court house and to complete it without delay, all contracts made with such committee, within the scope of its commission, are as binding on the county as if made direct with the board of supervisors,</p> <p>3. Committees—Power of One Member to Act—.When it is the duty of a committee to act, and where the act done is an act proper for the committee to do at the particular time, being a mere detail in the discharge of the general duties imposed upon it, if such act is performed by any member of the committee, with the general acquiescence of the whole, in the absence of fraud, collusion or bad faith, it will be deemed the act of the committee.</p>

<p>1. Coal Mines—Liability of Owners for a Failure to Deliver Props, etc.—The owner, agent or operator of a coal mine is required by the statute (R. S., Chap. 93) to kéep a supply of timber constantly on hand, of sufficient dimensions to be used as props and cap pieces, and to deliver the same as required, so that the workmen may at all times be able to properly secure the workings for their own safety.</p> <p>2. Ordinary Care—What is Evidence of.—In an action by a child to recover damages for the death of its parent by neglect of a mine owner to furnish timber for props as required by law, evidence showing that the deceased went to another room to borrow props but could get none, is competent for the purpose of showing that the deceased was exercising due care for his own safety.</p> <p>3. Damages—In Actions Under the Law Requiring Owners of Mines to Furnish Timber for Props, etc.— In actions for damages sustained by reason of the death of a person occasioned by the willful failure of the owner of a coal mine to comply with the law requiring him to furnish timber for props, the amount of the recovery must be largely left (within the limits of the statute) to the discretion of the jury; and when proof is made of the age and relationship of the next of kin, suing, they may estimate the pecuniary damages from the facts proven, in connection with their knowledge and experience in relation to matters of common observation. Baltimore & O. S. W. Ry. Co. v. Then., Adm., etc., 59 Ill. App. 561.</p> <p>4. Same—Nothing to be Alloiced for Pain and Grief.—In estimating the amount of damages in action's for the death of a person resulting from the failure of a mine owner to furnish timber for props in his mine as required by the statute, nothing is to be allowed for pain suffered by the deceased or for grief or sorrow inflicted upon his children. The damages must be limited to the injury suffered by reason of the loss of support his next of kin may have sustained on account of his death.</p> <p>5. Remedies—Technical Niceties Not to be Indulged in.—Technical niceties ought not to be indulged in to defeat the provisions of the law enacted for the protection of a class of men who are confined in their labor to small space in mines far below the surface of the earth; a labor which inevitably becomes dangerous to human life unless constantly watched and guarded by those in charge of the mine.</p> <p>6. Remote Cause—Defined, etc.—A remote cause is one which some independent force takes advantage of to accomplish something not the probable or natural effect thereof.</p> <p>7. Question of Fact—Proximate Causes.—The question as to whether an act is a proximate cause is for the jury, under a proper definition of all the legal elements that go to make up such a cause.</p> <p>8. Jurors—Triers at Common Laic—The Rule Not Adopted in This State.—At common law the decisions of challengers were committed to triers and their decision was final and not subject to review on error, but the rule has never been adopted in this State.</p> <p>9. Triers—The Rule as to, Not Adopted as a Part of the Common Law.—The method at common law of determining the qualification of jurors on challenges to the favor was a rule of practice in the English courts and not a part of the body of the common law of ■ England which was adopted by the legislature of this State by the act entitled “An act declaring what laws are now in force in this State,” approved February 4, 1819.</p> <p>10. Excessive Damages—When $2,500 is Not.—Where the deceased was a vigorous, healthy man, scarcely past the prime of life, capable of earning good wages, a judgment in favor of a minor son, the burden of whose care and support had been thrown upon the decaesed by reason of the death of the son’s mother, for the sum of $2,500, is not excessive.</p>

Trespass, for damaging city lot. 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>Bill to Foreclose a Mortgage —Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge, presiding.</p> <p>Heard in this court at the August term, 1899.</p>

<p>Action in Case, for damages to goods. Appeal from the Circuit Court of Union County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the August term, 1899.</p>

<p>1. Municipalities—When Not to be Excused from the Performance of their Contracts.—Where a municipal corporation in dealing with individuals assumes that it possesses certain corporate powers upon which the validity of its acts depends, when in fact it does not possess such powers, it is not thereby to be excused from the performance of its obligation, if it can be performed through the agency of other powers, which it does possess.</p> <p>2. Same—When Not Limited by the Appropriation Bill—Contracts for the Construction of Water Works.—Where a city in its annual appropriation bill appropriated, among other items of expenditures, the sum of §3,500 for “water works,” and afterward passed an ordinance providing for the construction of a system of water works, pumping station, reservoir, etc., and entered into a contract with a party for such construction for the contract price of §13,486, it ivas held that the contract was authorized by other powers possessed by the city, notwithstanding the contract price exceeded the amount of the appropriation.</p>

<p>Proceeding in Probate.—Appeal from -the Circuit Court of Marion County; the Hon. Trüman E. Ames, Judge, presiding. Heard in this court at the February term, 1899.</p>

<p>Assumpsit, on an insurance policy. Appeal from the Circuit Court of Jackson County; the Hon. Alonzo K. Vickers. Judge, presiding. Heard in this court at the August term, 1899.</p>

Assumpsit., for a breach of promise of marriage. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the August term, 1899.

<p>Certiorari.—Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robabts, Judge, presiding. Heard in this court at the August term, 1899.</p>

Action, to recover for the loss of services, etc.—Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer. Judge, presiding. Heard in this court at the February term, 1899.

<p>1. Contracts—Recovery Upon an Afterthought Not Sustained.— Where the recovery sought by a party to a contract is founded upon an afterthought of the party and not within the contemplation of the parties to the contract at the time the contract was made, the recovery can not be sustained.</p> <p>3. Verdicts—Not Sustained by the Evidence.—Where a verdict is not sustained by the evidence the judgment founded upon must be reversed.</p>

Assumpsit, to recover for aid to paupers. 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>Proceedings in Probate to Discover Assets.—Error to 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. Contracts—To be Interpreted by the Law of the Place Where Made. —Personal contracts are to be interpreted by the law of the place where they are made.</p> <p>2. Same—Remedies on—How Regulated.—Remedies on contracts are to be regulated and pursued according to the law of the place -where the action is instituted, and not by the law of the place where the contract is made.</p> <p>3. Statutes of Limitation—Construction of.—Statutes of limitation are to be considered as falling within these rulés except where provision is otherwise made by the statute. So, where an action is brought in one State upon a contract made in another, a plea of the statute of the place where the contract was made is not a good bar to the action, but a plea of the statute of the State where the action is brought, is.</p> <p>4. Same—Operates Upon the Remedy Alone.—A statute of limitation operates upon the remedy. The law of the forum and not the law of the situs of the contract, controls.</p> <p>5. Same—Resident Makers and Non-resident Payees of Promissory Notes.—When the maker of a promissory note resides in this State both at the time when the note is given, and when it falls due, while at both times the payee resides in a foreign State, and the action is brought in this State, the statute of the foreign State has no application.</p> <p>6. Evidence—Bearing Upon the Disposition of Partnership Assets. —Upon the trial of an action by the payee of a promissory note made by a partnership against the executrix of the surviving partner, a petition filed in a court of record by the other partner in his lifetime, properl}' verified, for the purpose of closing up the partnership affairs, showing that certain property was pledged to the payee as collateral security for the payment of the note sued, and subsequently sold, and the proceeds applied upon the partnership debts, is competent as bearing upon the question as to whether certain payments shown on the note were made by the partnership out of partnership assets, or by the other partner individually out of his own funds.</p> <p>7. Words and Phrases—“When a Cause of Action Has Arisen.”— The words “ when a cause of action has arisen,” as they occur in the statute of limitations, are to be construed as meaning when jurisdiction exists in the courts to adjudicate between the parties upon some particular cause of action, if properly invoked; or, in other words, when the plaintiff has the right to sue the defendant in the courts of the State upon the particular cause of action without regard to the place where the cause of action had its origin.</p> <p>8. Attorney’s Fees—In Promissory Notes—When They Become Due.—Where a promissory note provided that if it was not paid in full at maturity, and placed in the hands of an attorney for collection, the. makers were to pay ten per cent additional on principal and interest due for attorneys’ fees, it teas held that such fees became due when, after non-payment,at maturity, the note was placed in the hands of an attorney for collection, and could be recovered in the same suit.</p>

<p>I. Master and Servant— Duty of the Master Toward Inexperienced Servants.—It is the duty of the master who sets an inexperienced servant of immature years to work upon dangerous machinery to give him such notice and instruction as is reasonably required by his youth and inexperience to avoid the danger; but this does not absolve the servant from the exercise of such care and caution for his own safety as one of his years and discretion is ordinarily expected to use and employ.</p>

<p>1. Declaration—By an Outside Party on a Conservator's Bond.— A declaration by an outside party upon a conservator’s bond does not disclose a cause of action. Such a bond is given for the use of the ward, and not for the purpose of securing any outside parties.</p>

<p>I. Ordinary Care—Lack of. Will Bar a Recovery.—Where a party was not, at the time of his injury, in the exercise of ordinary care for his own safety, he is not entitled to recovery.</p>

<p>Claim in Probate.—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>

<p>. 1. Practice—What a Motion to Direct a Verdict Admits.—The maker of a motion to direct a verdict in his favor admits the truth of all opposing evidence and all inferences which may be fairly and rationally drawn from it, but such motion does not involve a determination of the weight of evidence or the credibility of witnesses.</p> <p>2. Master and Servant—Liability of the Master in Ordering the Servant to Perform Dangerous Work.—A 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—Right of the Servant to Assume That the Master Will Not Expose Him to Unnecessary Peril.—When the master orders the servant to perform his work, the latter has a right to assume that the master, with his superior knowledge of the facts, will not expose him to unnecessary peril, and may rest upon the assurance that there is no danger which is implied by such an order.</p> <p>4. Same—Primary Duty of the Servant.—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 the order of the master unless he acts recklessly in so obeying,</p> <p>5. Same—Whether He Acts Recklessly, Questions of Fact.—The questions as to whether a servant acts recklessly in obeying the orders of his master or whether he acts as a reasonably prudent person would act under the circumstances, are questions of fact for the determination of the jury.</p> <p>6. Same—When the Servant is Entitled to Have His Case Sxibmitted to the Jury.—Where it is apparent from the evidence that the servant was sent to perform a dangerous work at a place where there was a concealed exhaust steam pipe, the existence of which, he had no knowledge, and that by reason of the confusion caused by the simultaneous rushing of steam from it and the starting of the machinery, an accident occurred in which he was injured, it was held that there was sufficient evidence tending to show a right to recover to be submitted to a jury for their determination.</p> <p>7. Appellate Court Practice—Exceptions to Decisions of the Trial Court in Improperly Exeluding Evidence.—A decision of the trial court in improperly excluding competent evidence, if excepted to at the time, may be assigned for error in the Appellate Court although no motion for a new trial is made.</p> <p>8. Same—Where the Propriety of Giving or Refusing Instructions is Sought to he Raised.—Where the propriety of giving or refusing instructions raises only a question of law, if sought to be -raised in the Appellate Court, a motion for a new trial is not required to be inserted in the bill of exceptions.</p>

<p>■1. Chancery Practice—What is a Final Decree in the Settlement of Partnership Accounts.—Where a partner flies a bill against his copartner and lien creditors, a decree which sets aside one lien and settles the order of all other liens and gives the data upon which the amounts due thereon can be computed, and orders the firm property sold and paid upon the liens in the order established, is a final decree and reviewable on error, though it refers the cause to a master to make computation of the amounts due each lien creditor before payment shall be made, and though it does not settle the accounts between the partners.</p> <p>2. Same—Cross-bill by Lien Creditors May Pass to Final Decree.— Cross-bills by lien creditors may pass to final decree establishing or setting aside the liens, and directing sale' of the property to pay them, though the accounts between the several debtors are not yet determined under the original bill.</p> <p>3. Estoppel—Of a Principal by His Agent’s Stipulation.—Where an agent of a defendant signs a stipulation in the name of his principal and turns property over to a receiver pursuant thereto, and the principal does not revoke the action of his agent nor apply to the court to be restored to his property, he can not be heard in an appellant tribunal to deny that the stipulation is binding upon him.</p> <p>4. Same—Where Parties Permit a Court to Act Under a Stipulation Without Objection.—Where parties to a cause do not sign a stipulation filed therein, but permit the court to act thereunder without objection, and accept valuable financial benefits resulting to them f rom the enforcement of the stipulation, they will not afterward be heard to say it does not bind them.</p> <p>5. Forfeitures—Non-payment of Rent as. When Not To Be Enforced in Equity as Against Creditors of the Tenant. —Where a lease provides that in case of default in payment of rent all machinery and improvements placed upon the premises by the tenant shall be forfeited to and become the property of the landlord as liquidated damages, this provision will not be enforced in equity as against other creditors of the tenant who acquire valid liens upon said machinery and improvements before the landlord asserted any rights under said provision.</p> <p>i 6. Landlord and Tenant—Where a Landlord Permits Property, on Which He Has a Lien, to be Turned Over to a Receiver.—If a landlord, having a right to assert a lien upon personal property of his tenant for unpaid rent, permits it to be turned over to a receiver, and receives financial benefits from the receivership, he can not afterward assert any lien for such unpaid rent as against the receiver or lien creditors who had levied executions upon said property before the receiver was appointed.</p> <p>7. Chattel Mortgagees— When Estopped to Assert Liens.—Where a chattel mortgagee obtains possession of personal property by replevin against a sheriff holding it on execution, and then surrenders it to a receiver in a chancery cause wherein he is a defendant, and stipulates that the validity of his mortgage shall be determined in that cause, and the pleadings therein raise the issue of its validity, he can not defeat the jurisdiction of the court to determine its validity in that cause by afterward taking judgment by default against the sheriff in the replevin suit, without notice to those who in the chancery suit assail the validity of his mortgage.</p>

<p>1. Chattel Mortgages—When the Note Does Not State Upon its Face That it is Secured by Chattel Mortgage.—A chattel mortgage is not void under section 1 of the Chattel Mortgage Act of 1895 (Laws of 1895, 260), for failure of the’note to state upon its face that it is secured by chattel mortgage, unless the note has been assigned.</p> <p>2. Same— Where Agreement of Parties Will Not Preserve the Character of Property as Personalty.—If the subject of a chattel mortgage is affixed to realty so as to become a part of it, or if the lease of the mortgagor does not authorize its removal from land owned by another, and such renewal can not be made without injury to the realty or to the fixture, the agreement of the parties will not preserve the character of the property as personalty.</p>

<p>1. Mortgages—Duty of Purchaser.—It is the duty of the purchaser of a mortgage to inquire of the mortgagor if there is any reason why it should not be paid.</p> <p>2. Same— With Whom the Mortgagor May Settle.—The mortgagor may pay or settle with the person having apparent authority to receive satisfaction of the mortgage; and, a discharge of the mortgage thus obtained will prevail against those having a secret, concealed or reserved, interest in the mortgage.</p> <p>3. Same—Payment Made to Mortgagee by Oumer of Property.—The payment of a mortgage by the mortgagor to the mortgagee, without notice of an unrecorded assignment, defeats the claim of the assignee and entitles the mortgagor to its cancellation and discharge.</p>

<p>1. Gifts—Notes as, Can Not Form Ground of Recovery by Donee in Action at Law.—A note executed without consideration, or solely from love and affection, intended as a mere gift, can not form the ground of recovery by the donee in an action at law against the donor.</p> <p>2. Same—Revocable Until Executed—Notes and Checks.—A gift is revocable till executed, and a note intended as a gift from the maker to the payee is but a promise to make a gift, and the gift is not executed till the note is paid. The same applies equally to checks as a gift by drawer to payee.</p> <p>3. Same—Complete Delivery Necessary.—In order to constitute a valid gift, there must be a complete delivery of the subject of the gift, either actual or constructive.</p> <p>4. Checks—What They Transfer.—In Illinois the check of a depositor upon his banker, delivered to another for value, transfers as between drawer and payee, the title to so much of the deposit as the check calls for.</p> <p>5. Same—When Maker Withdratos Deposit Before Presentment.— In the case of a check delivered for value, if the maker withdraws his deposit before presentment he commits a fraud upon the payee, and the payee becomes entitled to recover the amount of the check from the drawer.</p> <p>6. Same—When Not Paid or Accepted in the Lifetime of the Drawer, Revoked by Death.—A check delivered by drawer to payee as a mere gift, and not paid or accepted in the lifetime of the drawer, is revoked by his death, and is not a valid claim against his estate.</p> <p>7. Presumptions—That Services are Gratuitous.—Where services are rendered either by or to one admitted into the family as a relative, the presumption of law is that such services are gratuitous, and that the parties do not contemplate payment therefor. This presumption may be overcome by proof either of an express contract between the parties that payment shall be made, or of facts and circumstances which show that both parties, at the time that the services were rendered, intended pecuniary recompense other than that which arises naturally out of the family relation.</p>

<p>Trover.—Appeal from the Circuit Court of Woodford County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term, 1900.</p>

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

Assumpsit, upon a contract of subscription. Appeal from the Circuit Court of Ford County; the Hon. George W, Patton, Judge, presid- ing. Heard in this court at the November term, 1899.

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

<p>1. Estoppel—Of Plaintiff in Replevin by His Affidavit and Declaration.—A plaintiff having charged in an affidavit on which a writ of replevin is issued and in his declaration that the officers hold possession ■ and wrongfully detain the property in question, is in no position to urge the invalidity of the levy for the reason that the officers did not take control and possession of it.</p> <p>3. Execution—Where Property is Not Subject to, etc.—Incomplete Sales.—A party ordered a soda fountain, agreeing to pay for it partly in cash and partly in notes, but upon its delivery to him by the carrier refused to comply with the terms of the sale on his part or to make the payments as agreed. He afterward sold out his business, but expressly reserved the soda fountain, informing the purchaser that it was the property of the persons from whom he had ordered it, and was subject to their order. It was held that the sale of the fountain was not complete and that the title to it was still in the original vendors and not subject to levy and sale for the debts of the person ordering it.</p>

<p>1. Ordinary Care—Evidence of in the Absence of Eye Witnesses.— Where a person in the employ of a railroad company is killed and there are no eye witnesses to his death, evidence that he was a feober man, usually careful, in good health and his faculties unimpaired, is competent to show that he was in the exercise of ordinary care for liis personal safety at the time of his death.</p> <p>2, Negligence—Allowing Mail-cranes to Lean too Near the Track.— It is negligence in a railroad company to permit a “ mail-crane” to lean so near its track as to endanger the lives of its employes in charge of its trains, while properly discharging their duties.</p>

<p>1. Practice—-Waiving a Demurrer.—By pleading to a declaration to which a demurrer has been interposed, the party demurring waives his demurrer and can not require a decision of the Appellate Court upon the ruling of the trial court in regard to questions raised by such demurrer.</p> <p>S. New Trials—Cumulative Evidence.—Evidence which is merely cumulative is not sufficient for the purpose of granting a new trial upon the ground of newly discovered evidence.</p>

Bill to Quiet Title—Cross-bill. Trial in the Circuit Court of Vermilion .County; the Hon. Ferdinand Bookwaltbr, Judge, presiding. Decree for complainant; appeal by one of the defendants. Heard in this court at the May term, 1899.

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

<p>Trover.—Appeal from the Circuit Court of Ford County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the November term, 1899. Reversed and remanded.</p>

<p>1. Agents—Acts of, Are Those of His Principal.—'Where a party-acts by an agent, the act is his and not that of the agent; and where the agent does not disclose the name of his principal, the party affected may, when he learns it, hold him responsible for its performance.</p> <p>2. Same—When He Fails to Disclose the Name of His Principal.— Where the agent fails to disclose bis principal, he may, on showing the agency, claim and enforce the contract precisely as if entered into by himself.</p> <p>3. Same—ParoZ Evidence—When Competent to Vary His Written Contract.—Where an agent enters into a written contract, it is competent to show by parol evidence that he was acting for another.</p> <p>4. Parol Evidence— When Competent to Vary a Written Contract. —When it becomes necessary to show who in fact were the parties to a written contract, and an issue of fact is formed upon the question, it is competent to show by parol evidence who the parties to the contract were in fact.</p> <p>5. Practice—Amendments upon Dismissing a Suit as to a Defendant.—When a plaintiff dismisses his suit as to a part of the defendants, the better practice in actions sounding in contract is to amend the declaration so as to make it conform to the actual parties to the suit.</p> <p>6. Appellate Court Practice—Points That Can Not he Raised for the First Time.—The point that the plaintiff dismissed his suit as to a ' defendant but did not amend his declaration so as to make it conform to the actual parties to the suit, can not be raised for the first time in the Appellate Court.</p>

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

<p>1. Instructions—Summarizing the Evidence and Assuming the Existence of Matters in Dispute.—It is always hazardous and usually erroneous for the court by an instruction to summarize the evidence favorable to only one side of the case, and where the instruction amounts to telling the jury that disputed and material facts exist, or assumes the existence of other disputed facts, a verdict favorable to the side responsible for the instruction will always be set aside.</p>

<p>1. Fraud—Not to be Presumed.—Fraud is not to be presumed, and where an act may be traced to an honest intent as well as to a corrupt one, the former is to be preferred.</p> <p>2. Same—Strict Proof Required.—Something more than a mere suspicion is required to prove an allegation of fraud. The evidence must be clear and cogent and must leave the mind satisfied that the charge is true.</p> <p>3. Same—Vitiates Every Transaction—Application of the Rule—Innocent Purchaser.—Fraud so vitiates and taints in law and equity every transaction as to render it void not only as to the actual perpetrators, but also as to those who connive at and seek to profit by it. But it is not in harmony with the principles of law or equity to declare void a conveyance to an innocent purchaser because of the fraud of his vendor.</p> <p>4. Fraudulent Conveyances—Intention of the Parties—Vendor and Vendee.—In order to impeach a conveyance for fraud, both the vendor and vendee must be shown to have intended to commit the fraud before the deed can be avoided. Both parties must contrive the conveyance with fraud, malice, covin, collusion or guile. They must both be guilty of the contrivance and intent.</p> <p>5. Trials by the Court—Findings of Fact.—When the trial court has an opportunity of seeing and of hearing their testimony as it isf delivered orally, the findings of such court upon mere questions of fact, where the testimony is conflicting, will not ordinarily be disturbed on appeal unless such findings are clearly and. manifestly against the preponderance of the evidence.</p>

<p>1. Appellate Court Practice—Power of the Trial Court After the Term-Continuances.—When a motion for a new trial is submitted without any statement in writing of the grounds relied upon, and without objection, objections are waived, can not be heard for the first time in the Appellate Court.</p> <p>3. Practice—Continuance of Motions in the Circuit Court.—A motion entered in the Circuit Court and continued, retains the cause in court until such motion is disposed of.</p>

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

<p>1. Instructions—To Be Applicable to the Theories of the Parties.— Each party in a suit is entitled to have instructions given that fairly present to the jury the law applicable to - the evidence which tends to support his theory of the case, so that the jury, being put into possession of the law applicable to the evidence in support of each side of the case, have only to determine from all the evidence what the facts are, and render the verdict accordingly.</p> <p>2. Same—Should Be Read as a Series.— The instructions given in a case should be read as a series, and when so done, unless they are so variant and irreconcilable as to be unable to stand together and leave the jury free to adopt one or more as the law and entirely reject the other as may suit them caprice, they are not so conflicting as. for that reason, to constitute error sufficient to reverse a judgment.</p> <p>3. Verdicts—Presumptions as to.—When a jury has been properly instructed as to the law of the case, they must be considered as having found every issue of fact litigated against the unsuccessful party, if necessary to sustain their verdict.</p> <p>4. Same—Must Be Considered as Expressing the Truth.—The verdict must be considered by this court as expressing the truth concerning the disputed facts, unless it is clearly against the weight of the evidence, and ought not, as a matter of law, to stand.</p>

<p>1. Appeals—In Matter Relating to the Administration of Estates.— An appeal lies from a Probate Court to the Circuit Court in all matters arising under the act relating to the administration of estates in favor of any person who may feel himself aggrieved, and this, too, where such person is not a party to the record.</p> <p>2. Certiorari—Where it Lies.—In this State the .common law writ of certiorari may issue to all inferior tribunals and jurisdictions in cases where they proceed illegally, and there is no appeal or other mode of directly reviewing their proceedings.</p> <p>3. Courts of Probate—Not Strictly of Inferior Jurisdiction.—The County and Probate Courts, in the administration of estateá, although of limited, are not, strictly speaking, of inferior or special jurisdiction.</p> <p>4. Administration of Estates—Where the Writ of Certiorari Does Not Afford an Adequate Remedy.—Where it is apparent that no error of fact can be made to appear on the face of the record of a Probate Court in the entry of an order in the administration of an estate, the writ of certiorari is of no avail as conclusions of fact can not be inquired into under it.</p> <p>5. Chancery Jurisdiction—To Supersede the Probate Court in the Administration of Estates.—A court of chancery will not, except in extraordinary cases, supersede the Probate Court in the administration of an estate, but when a judgment has been obtained by fraud, accident or mistake, courts of equity have jurisdiction to relieve against it unless tbe party against whom the judgment is rendered has been guilty of negligence.</p> <p>6. Same—Where Jurisdiction in Probate Matters Will be Assumed.— Equity jurisdiction will be assumed in a probate matter where a judgment in the court of probate has been rendered,-upon the ground, apparently, that the courts of law can not grant adequate relief, as where an aggrieved person has had no notice of the proceedings, is in ignorance of the proceedings, and so remains until after the time for an appeal has expired.</p>

<p>1. Appellate Courts—No Ouster of Jurisdiction by Subsequent Proceedings in the Trial Court.—Where the Appellate Court obtains jurisdiction of a cause in a proper manner, its jurisdiction can not be ousted by any subsequent proceedings of the trial court.</p> <p>2. Appellate Court Practice—When its Jurisdiction is Not Affected by Subsequent Proceedings of the Trial Court.—Where a plaintiff in error at the time of suing out his writ is entitled to have the judgment of the trial set aside as to him, the jurisdiction of the Appellate Court can not be affected by a nunc pro tunc order of the trial court subsequently entered amending the judgment, and he is not only entitled to his taxable costs but to an order fully protecting him from the judgment of the trial court.</p>

<p>1. Corporations—Action of the President When the Act of the Corporation.—The action of the president of a corporation, who, being the owner of all but two shares of the stock, acts with the acquiescence of the only other active stockholder and director in the manner in which all the business of the corporation has been done, will be regarded as the action of the corporation.</p> <p>3. Same—Where There are no Stockholders Except Those Who are Directors.—While the directors of an incorporated company represent the stockholders, and their action must be official in order to bind the stockholders, yet where there are no stockholders except those who are directors, and they assent to an action, such as the assignment of insurance policies to secure an existing obligation, it can not be held that such action is a fraud upon any one or that it is invalid.</p> <p>3. Same—Authority of Agents may be Inferred.—Authority in the agent of a corporation may be inferred from the conduct of its officers, or from their knowledge and neglect to make objections.</p> <p>4. Same—When Existing Liabilities are Presumed to be Assumed. —Where a corporation is a mere continuation of the same business previously transacted by the same parties, under a different name, and receives and holds the property of such parties, it must be presumed to have assumed the liabilities with which said property was known to be charged.</p> <p>5. Same—Assignment of Insurance Within the Scope of the President’s Authority.—The assignment of insurance policies by the president of a corporation, after a loss sustained, for the purpose of securing a corporate liability, is merely a recognition and payment of its own obligations and within the scope of his authority as president of the corporation.</p> <p>6. Same—Power of the President to Incur Debts After the Corporation has Ceased to do Business.—To hold that the president of a corporation can exercise corporate power to incur debts in the corporate name and impose corporate liability after the corporate property has been destroyed by fire and the corporation has ceased to do business and changed its location, without any semblance of corporate authority, would be unwarrantable,</p> <p>7. Same—Execution of a Power of Attorney to Confess Judgment After the Corporation has Ceased to do Business.—The execution by the president of a corporation after it has ceased to do business, of a power of attorney to confess a judgment against it upon an obligation made by him, is not within the scope of his authority.</p> <p>8. Same—Powers of Officers After the Corporation Ceases to do Business.—When a corporation ceases to do business, all implied powers in its officers to bind it by incurring new obligations are at an end. The president may, without special authority from the board of directors, perform all acts of an ordinary nature, which by usage or necessity are incident to his office, and bind the corporation by contracts made in the usual course of its business; but when the corporation retires from business this authority ceases to exist.</p> <p>9. Presumptions—When the Debt for Which the Note Was Given Accrued.—Where a note is executed by the president of a corporation for a corporate liability, it must be presumed in the absence of evidence to the contrary, that the liability for which the note was given was contracted on the day the note bears date.</p> <p>10. Confession of Judgments—0?i Warrants Executed Without Authority.—Where a power of attorney to confess a judgment is executed by the president of a corporation without authority, a judgment confessed upon it is void and not merely voidable.</p>

<p>Indictment, for a conspiracy. Error to the Criminal Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>Motion to Vacate a Judgment.—Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1900.</p>

<p>Trespass, m et armis. Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Presumptions—As to the Validity of Written Instruments.—When a trust deed and notes are introduced in evidence and no objection to the genuineness of the signatures to them is made and the trust deed is properly recorded, the presumption is that they are valid instruments.</p> <p>2. Wills—Restrictions Upon Alienation.—A testator devised real estate to his wife and children, to be divided between them on condition that it be not sold until after his youngest child living at the time of his decease and the youngest child of one Frederick Voss living at ■the time of his decease, should become of age, or in case of the death of either of them, until after the date or dates when said children would have become of age if living. It was held that the condition in the will was a restriction upon alienation inconsistent with the estate devised.</p> <p>8. Justices of the Peace—Consolidation of Causes of Action.—The statute which requires that in a suit before a justice each party shall bring forward all his claims against the other, existing at the time of the commencement of the suit, has no application to cases where the demands, if consolidated, would exceed the jurisdiction of the justices.</p> <p>4. Tax Deed—0/ a Vigintillionth Part of Premises.—The nominal purchase of, at a sale of lands for delinquent taxes, one vigintillionth part of a forty-foot lot, would seem in reality to be a voluntary payment of the taxes without consideration, and a deed for the same does not constitute a cloud upon the title of the lot and may be regarded as void.</p> <p>5. Adverse Titles—In Foreclosure Suits.—A court of equity has no jurisdiction to adjudicate upon an adverse legal title held by a party defendant in a foreclosure suit, but the court should dismiss the suit as to such defendant.</p>

Assumpsit, for failure to deliver a telegram. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1899.

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

<p>Í. Instructions—As to the Issues of the Case— It is error to refuse an instruction which informs the jury as to the issues of the case.</p> <p>3. Same—Calling Attention to a Variance of the Proof and the Declaration.—Where the declaration alleged that the plaintiff was thrown from a wagon by force of a collision, but the evidence of the witnesses showed that the plaintiff jumped from the wagon, the defendant is entitled to have the jury instructed in accordance with the evidence of the witnesses, that if they believed such evidence, that the plaintiff jumped out of the wagon, their verdict should be for the defendant.</p>

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

<p>Assumpsit.—Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Hoard in this court at the October term, 1899.</p>

<p>1. Cause of Action—In Personal Injury Cases.—In personal injury cases che canse of action is the act or thing done, or omitted to be done, by the one which confers the right upon the other to sue; in other words, the act or wrong of defendant toward the plaintiff which causes a grievanee for which the law gives a remedy.</p> <p>3. Statute of Limitations—Demurrer to Plea of, Properly Sustained.—Where the original declaration1 states a good cause of action, and the additional counts, to which pleas of the statute of limitations are interposed, are hut a re-statement, in different form, of the same cause of action set up in the original declaration, the demurrer to the pleas of the statute is properly sustained.</p> <p>3. Damages—For Future Suffering.—It is proper for the jury to consider the future suffering which they may believe from the evidence the plaintiff will sustain by reason of her injuries, so far as the same is claimed and alleged in the declaration.</p> <p>4. Remittitur—Where it will Cure the Verdict.—Where there is no error in the procedure, and the evidence supports the verdict for the larger part of the amount awarded, and it can not be said that the amount of the verdict itself indicates an improper motive on the part of the jury, a remittitur cures the verdict.</p>

<p>Assumpsit, on a draft. Appeal from the County Court of Cook County; the Hon. Henry W. Johnson, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Reasonable Care—Exercise of, a Question of Fact.—The matter of care and caution exercised by a person injured or killed by a railroad train is a question for the jury, and where the evidence is conflicting, and reasonable and fair-minded persons, acting reasonably, may reach different conclusions, it is proper to submit the case to a jury.</p> <p>2. Same—To Look Out for Passing Trains.—Whether a person about to pass a railroad track in a populous city, to take passage on a suburban train, should look out for passing trains on adjacent tracks is, under the circumstances of this case, a question for the jury.</p> <p>3. Same—No Established Rule as to What a Person Should Do Under all Circumstances.—It is impossible to lay down a rule of law as to what particular thing a person ought to do for his protection in the diversity of cases constantly arising, and the question what a reasonably prudent person would do for his own safety under the circumstances of each case must be left to the jury as a question of fact.</p> <p>4. Negligence—Running a Freight Train Past a Station While a Passenger Train is Receiving Passengers.—It is negligence in a railroad company to run a freight train at a high rate of speed past a suburban station where a passenger train is receiving or discharging passengers.</p> <p>5. Same—Ira the Management of Trains.—A jury is justified in finding a railroad company guilty of negligence for running its trains at a speed in violation of an ordinance or of its own rules, or in running them, at the rate of twenty or twenty-five miles an hour, past a passenger train stopping at a suburban station for the purpose of receiving or discharging passengers.</p> <p>6. Evidence—Sufficient to Show that a Deceased Person was Received as a Passenger.—The fact that a ticket good for passage on the train was found in the pocket of a person killed while in the act of taking passage upon a suburban train is sufficient proof to support the allegation that he was received as a passenger by the company, in connection with the fact that he was on premises which the company had appropriated and used for the purpose of receiving and discharging passengers and for their convenience.</p> <p>7. Presumptions—Knowledge of Railroad Rules by Passengers and the Right to Rely upon Their Observance.—A person, for a number of years in the habit of riding upon a suburban train almost daily, is presumed to have knowledge of the rules of the company relating to the passage of trains and of receiving and discharging passengers at suburban stations, where he was in the habit o' taking the train, and he has a right to rely upon the observance of such rules by the servants of the company,</p> <p>8. Carriers oe Pa ssengers—When the Responsibility Begins.—The relation of passenger and carrier begins when a person enters upon the premises of the carrier for the purpose of taking a train, and any place where the carrier has been accustomed to receive passengers is to be considered as such premises.</p> <p>9. Same—Duty Toward Passengers.—Where a person is received as a passenger it is the duty of the carrier to exercise the highest care to avoid injuring him.</p>

<p>1. Appellate Court Practice—Presumptions in the Absence of a Complete Record.—In the absence of a complete record this court will presume that a sufficient showing was made in the court below to warrant the granting of the order for an injunction with bond and without notice.</p>

Assumpsit, for money lost in a lottery. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1899.

Action on the 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.

Action on tlie Case, for personal injuries. Appeal from the Superior Court of Cook County; the-Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1899.

Action on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the October term, 1899.

<p>Appointment of. Not to be Attached Collaterally. —It is settled by the decisions of this State that the validity of the appointment of an administrator can not be attacked collaterally.</p> <p>3. Same—Liability of Sureties on Administrator’s Bonds.—Sureties on an administrator’s bond are not liable for the twenty per cent penalty imposed by section 17 of chapter 3, R. S., entitled “Administration of Estates.” The measure of their liability is fixed by the terms of the bond signed by them and can not be enlarged or varied by judicial construction.</p> <p>3. Statutes—Construction of Sec. 17, Chap. S B. S'.—Section 17 of chapter 3 R. S., entitled ‘ ‘Administration of Estates;” in so far as it imposes penalties, is to be strictly construed. It can not be extended so as to embrace persons and things not within its ordinarily accepted meaning.</p> <p>4. Sureties—On Administrator’s Bonds.—Where an administrator’s bond binds the obligors for the delivery only of such property as may have come into the possession of the administrator, it is not to be construed as applying to the delivery of such property as has never come into his possession.</p>

<p>1. Insurance—Effect of Turning Over to Its Attorney Money to Settle Losses.—The mere fact that an insurance company turns over funds to its attorney to be used in payment of demands against it does not release the company in the event that the attorney refuses to apply the funds as directed.</p> <p>2. Limitations—In Policies of Insurance.—When within the period limited in a policy for bringing suits against an insurance company, a settlement is agreed upon by the parties at a certain sum, a recovery may be had upon the agreement without reference to the terms of the policy.</p>

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

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

Action on 1 lie Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1899.

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

<p>Foreclosure Proceedings.—Appeal from the Circuit Court of Boone County; the Hon. CharlesE. Fuller, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Appeal from the Circuit Court of McHenry County; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>1. Cloud upon Title—When a Bill to Remove Can Not he Maintained.—A successful bidder upon real estate at partition sale can not maintain a bill to remove a cloud from the title to said real estate, where the sale has not been reported by the master nor confirmed by the court, and where no deed has been delivered, even though the bidder has paid the master the amount of his bid in money or securities.</p> <p>2. Chancery Practice— When a Title is Found Defective Pending Partition Proceedings.—Where complainant hi a partition suit procures an abstract of title to the land, and it is exhibited by the master in making sale, and is sold with the land, if before report and confirmation of sale a judgment lien is discovered not shown upon the abstract, the court has power in that cause to protect the purchaser; and he can not, before the sale is reported and confirmed and deed delivered, file an independent bill in equity for relief.</p>

Trespass on the Case, for damages resulting from the sale of intoxicating liquors. Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the April term, 1900.

<p>1. Judgment by Confession—Motions to Open Not to be Granted for Errors of Law or Defects in the Proceedings.—A. motion by defendant to open a judgment by confession and for leave to plead, will not be granted for errors of law or mere irregularities or defects in the proceedings, unless a good defense on the merits is shown.</p> <p>2. Same—Affidavits on Motion to Open to be Construed Against the Applicant.-—An affidavit in support of such a motion is construed most strongly against the applicant, and should state the facts which make out a meritorious defense, and not leave such defense a matter of inference.</p> <p>8. Same—Want of Consideration Not a Meritorious Defense.—Tint the payee never gave a consideration for the note does not make a meritorious defense, as a consideration moving from a third party would support the note.</p> <p>4. Promissory Notes—When the Legal Title Passes by Indorsement. —In this State the legal title to a note payable to W. or bearer does not pass by delivery but only by indorsement.</p> <p>5. Same—When a Person in Possession is Presumed to be the Equitable Owner.—A third person-in possession of an unindorsed note payable to W. or bearer will be presumed to be the equitable owner, in the absence of any showing to the contrary.</p> <p>6. Same— Where a Judgment by Confession is Entered in the Name of the Equitable Owner of an Unindorsed Note Payable to W. or Bearer.— Where judgment by confession is taken in his own name by the equitable owner of an unindorsed note payable to W. or bearer, the judgment will not be opened and leave given defendant to plead, where defendant does not show any meritorious defense to said note.</p> <p>7. Same—When a Plaintiff May Strike Out His Own Indorsement.— Plaintiff’s own indorsement on the back of anote will not defeat a recovery thereon, but he may strike it out or disregard it.</p>

<p>Bill in Chancery.—Error to the Circuit Court of Henderson County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>1. Contract—When One of Bailment.—When the identical thing delivered is to be restored, the contract is one o£ bailment and the title to the property is not changed.</p>

Appeal, from an order staying an execution, entered by the City Court of Aurora; the Hon. Russell P. Goodwin, Judge, presiding. Heard in this court at the April term, 1900.

<p>Assumpsit.—Error to the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>1. Vendoe and Vendee—Measure of Damages for Breach of Contract.—Where one orders a certain number of machines made and delivered to him at a stipulated price, and afterward and before delivery takes orders to resell at an advanced price, and some of the machines when delivered are found defective and are returned and are received back by the vendor and the vendee credited with the contract price, the measure of damages to the vendee for the breach of the contract is the excess, if any, of the market price at the time and place of delivery of such machines, if not defective, over the contract price.</p> <p>3. Measure oe Damages— Where Loss of Profits is Not.—In such case the loss of profits on the resale is not the measure of damages unless the vendor knew when the contract was made that the vendee had an existing contract for resale at an advanced price, or knew that the vendee was giving the order for the purpose of taking orders for resales in advance of delivery to the vendee.</p>

<p>Creditors’ Bills.—Appeal from the Circuit Court of Stephenson County; the Hon. James S. Baume, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Action Under the Dram-Sliop Act.—Appeal from the Circuit Court of Winnebago County; the Hon. John C. Carver, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>I. Freehold—Involved Where the Issue is the Dedication of Real Estate. —Where, in an action of trespass to real estate in a city, the only issue litigated is whether the real estate in question had been dedicated and accepted as a public alley, a freehold is involved, and the Appellate Court has no jurisdiction of an appeal from a judgment in such action.</p> <p>Trespass, to real estate. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>1. Solicitors’ Fees— Under a Stipulation in Proceedings for Partition.—Where it is stipulated in a partition case that the court shall allow a reasonable fee for a guardian ad litem of an infant defendant, to be taxed as costs, the court can only allow for services actually rendered for the infant in that cause, and not for legal services rendered to the minor and his regular guardian in other causes and courts, even if such other services have been valuable to the minor.</p> <p>2. Same—When $400 is Unreasonable.—Four hundred dollars is held to be an unreasonable allowance for a guardian ad litem under the facts of this case.</p>

<p>1. Equity Practice—Demurrer for the Want of Necessary Parties. —To take advantage of the fact that the Circuit Court erred in not requiring appellee to make the heirs-at-law, the executor and the executrix of the deceased, parties to the suit, the demurrer must show who are the necessary parties, from the facts stated in the bill; not indeed by name, for that might be impossible; but in such a manner as to point out to the plaintiff the objection to his bill and to enable him to amend by making proper parties.</p> <p>3. Demurrer—For Want of Proper Parties—What it Must Show.— A demurrer for the want of a proper party must show on its face that the cause of demurrer is the want of a proper party.</p> <p>3. Notes and Mortgages—Personal Assets—Heirs Not Proper Parties to the Bill for Foreclosure.—Notes and mortgages have come to be regarded as mere personal assets; they pass to the legal representative of the mortgagee, and his heirs are not necessary or proper parties to a bill to foreclose.</p> <p>4. Mortgages—Legal and Equitable Remedies.— At law the owner of the legal title must sue, but in equity the party in whom is the beneficial interest must sue in his own name.</p>

<p>1. Appellate Court Practice— Where No Propositions of Law Are Presented.—Where no propositions of law are presented to the court below and no questions arise on the trial as to the admissibility of evidence, the only question presented in the Appellate Court is whether the evidence is sufficient to sustain the finding.'</p> <p>2. Tenancy at Will—Tenants Not Entitled to Notice to Quit.— Tenants at will arS not entitled to a notice to quit; a mere demand for possession is all that the law requires.</p> <p>3. Forcible Entry and Detainer— Where Action May be Maintained—R. S.,Cthap. 57, Sec. 2.—Where the defendants made a peaceable entry upon premises and unlawfully withheld the possession thereof a plaintiff is entitled to be restored to the same.</p>

<p>1. Practice—When the Appellate Court Can Examine the Correctness of the Verdict.—The Appellate Court can not undertake to examine the correctness of a verdict, unless all the evidence is preserved by bill of exceptions.</p> <p>2. Motions for New Trial—Hew It May Be Preserved.—The only mode in which a motion for a new trial may be preserved is by a bill of exceptions.</p> <p>3. Criminal Law—Judgment When Defendant is Convicted on Tico Counts.—Where a defendant is convicted on two counts of an indictment for the illegal sale of intoxicating liquor, the judgment of imprisonment should be for a specified time under each count, the time under the second to commence at the end of the first.</p>

<p>Assumpsit,, on a mutual insurance policy. Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Distress for Bent.—Appeal from the Circuit Court of Livingston County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the April term, 1900.</p>

Assumpsit, for money paid under compulsion. Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the April term, 1900.

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of McHenry County; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1900.

<p>Action for Personal Injuries.—Appeal from the Circuit Court of Kankakee County; the Hon. John Small, Judge, presiding. Heard in this court at the April term, 1900.</p>

Assumpsit, for a breach of a marriage contract. Appeal from the Circuit Court of Lee County; the Hon. James Shaw, Judge, presiding. Heard in this court at the April term, 1900.

<p>1. Administration of Estates—Allowance to Children Under Sec. 77, Chap. 3, R. S.—Where one at the time of his death is a housekeeper, and the head of a family consisting of himself and a daughter, and leaves no widow, the daughter is entitled to an allowance out of the estate under section 77 of chapter 3 of the Revised Statutes, entitled, ‘‘ Administration of Estates.”</p> <p>2. Construction of Statutes—See. 17, Chap. 3, “Administration of Estates."—This right is not defeated by the facts that the daughter is an adult and a widow, that while her husband was alive she did not live at her father’s home, that she returned thereto at her father’s request, that he agreed to pay her §3 per week for her services at home, that she owned property and had an income from other sources, and that she shares equally with her brothers and sisters under her father’s will.</p>

<p>I. Personal Injuries—Evidence of Existing Attendant Cireurwstances.—In an action for personal injury it is competent to prove the existing circumstances attendant upon the injury, even though not averred as negligence in the declaration.</p> <p>3. Evidence—What is Admissible Under Allegations of Loss of Employment.—Where the declaration in a personal injury suit alleges loss of employment, plaintiff may prove what her business was and what she was earning at the time of the injury.</p> <p>3. Statute of Limitations— When Pleaded to Amended Counts.— Where the statute of limitations is pleaded to an amended declaration, a demurrer thereto is properly sustained if the amended declaration is but a re-statement of the cause of action set up in the original declaration.</p>

Action on the Case.—Death from negligent act. Appeal from the Circuit Court of Stephenson County; the Hon. James Shaw, Judge, presiding. Heard in this court at the April terrp, 1900.

<p>Bill to Set Aside a Conveyance.—Appeal from the Circuit Court of Vermilion County; the Hon. Frank Dunn, Judge, presiding. Heard in this court at the November term, 1899.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Fulton County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the November term, 1899.

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

Action in Case, under section 9 of the-dram-shop act. Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Meehan, Judge, presiding. Heard in this court at the November term, 1899.

Action on the Case, for personal injuries. 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>Action on the Case.—Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1899.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1899.

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

Trespass on the Case, for flooding lands. Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1899.

<p>Petition for Direction as to the Distribution of Funds, etc.— Appeal from the Circuit Court of Montgomery County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Replevin.—Appeal from the County Court of DeWitt County; the Hon. George K. Ingham, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>1. Variance—Proofs Must Correspond with the Pleadings.—Under a declaration for a conversion of grain by an agent, no recovery can be had upon proof of a shortage occasioned by an ordinary shrinkage in the grain.</p> <p>Debt, on an indemnity bond. 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>Bill in Chancery.—To reform a written contract. Appeal from the City Court of Mattoon; the Hon. J. F. Hughes, Judge, presiding. Heard in this court at the November term, 1899.</p>

Assumpsit, for real estate broker’s commissions. 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>Assumpsit, on promissory notes. 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. Principal and Agent—Power of Agent to Bind Corporation.— The power of an agent to bind a corporation is limited to the scope of his agency.</p>

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

<p>Replevin.—Appeal from the Circuit Court of Greene County; the Hon. Owen W. Thompson, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Assumpsit, on a promissory note. 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>1. "Wills—Testamentary Capacity.— In this case, a testator eighty years of age, able to talk rationally, is held to be possessed of the necessary mental capacity to execute a will.</p>

Trespass.—Distraint of personal property for taxes. Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray,-Judge, presiding. Heard in this court at the November term, 1899.

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

<p>Bill for an Accounting.—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>Replevin.—Appeal from the Superior Court of Cook County: the Hon, Margos Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Pleading—Conditions Precedent and Subsequent.—The general rule is that where there are conditions precedent 'to a right of recovery, such conditions should be set out in the declaration and their performance averred, or that the performance of the same has been waived. Conditions subsequent to a right of recovery may be left to be set up as a defense.</p> <p>2. Same—Policies of Insurance Inadmissible Under the- Common Counts.—A policy of insurance is not admissible under a declaration containing only the common counts. It must be specially pleaded.</p>

<p>"Foreclosure of a Chattel Mortgage.—Appeal from the Circuit Court of Cook County; the Hon. Charles G-. Neely, Judge, presiding. Heard in this court at the October term, 1899.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. John C. Garver, Judge, presiding. Heard in this court at the October term, 1899.

<p>1. Statutes—When to he Given a Retroactive Effect.—The rule is well settled that when the question arises as to whether a statute is to be given a retroactive effect, it will be held to be prospective only, in its operation, unless the language of the act is such as to admit of no doubt that it was intended to be retroactive.</p> <p>2. Same—The Act of May 26, 1897, Requiring Foreign Corporations to Have Offices in This State.—The act of the General Assembly providing that no foreign corporation failing to com ply with its provisions, shall maintain any suit, legal or equitable, in the courts of this State, upon any demand arising out of contract or tort, approved May 28, 1897 (Laws of 1897, 174), can not be given a retrospective effect, and has no application to suits to enforce contracts made by such corporations before the passage of the act.</p>