Volume 90 — Illinois Appellate Court Reports

<p>1. Chancery Practice—When a Cross-Bill Will Not be Permitted. —A defendant will not be permitted to file a cross-bill when his rights are fully disclosed in his answer.</p> <p>2. Same—Allegations of a Cross-Bill Must be Germane to the Original Bill.—A transaction in no way germane to, or connected with or arising out of matters set forth in the original bill can not properly be made the subject of a cross-bill.</p>

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

<p>1. Abatement—Of Actions, Death of Defendant Pending a Motion foi'aNew Trial.—When a cause has proceeded to trial and the verdict is against a sole defendant who dies pending his motion for a new trial, by the common law the court should proceed to a disposition of the motion irrespective of statutory regulation. If the motion is granted, then the question of abatement will arise, but if the motion is overruled a judgment upon the verdict should follow nuncpro tune as of the time of the return of the verdict, i. e., within the lifetime of such sole defendant.</p> <p>2. Same—Survival of Actions in Illinois.—In Illinois the statute as to the survival of actions, modifying the common law rule as to the abatement of suits against a sole defendant upon the death of such defendant, is not applicable to a case where the defendant dies pending his motion for a new trial unless a new trial is allowed.</p> <p>8. Same—Entry of Judgment Nunc Pro Tune—Death of Defendant Pending a Motion for a New Trial.—When a sole defendant against whom a verdict has been returned dies pending a motion for a new trial, in case the motion is overruled it is proper for the court to enter judgment on the verdict mine pro tune as of the time of the return of the verdict within the lifetime of the defendant.</p>

<p>1. Courts—Exercise of Discretionary Poicers.—This court is of the opinion that the trial court, in refusing to vacate the judgment in this case except on condition of the payment of ten dollars attorney’s fees, exceeded the limit of reasonable discretion.</p>

<p>1. Mortgages—Purchaser at a Foreclosure Sale Under a Second Mortgage.—A purchaser of premises at a foreclosure sale under a second mortgage has no right of recovery either at law or in equity against a grantee of the equity of redemption who has assumed to pay the amount secured by the prior mortgage.</p> <p>2. Same—Rights of a Purchaser at a Foreclosure Sale Under a Second Mortgage.—A purchaser at a foreclosure sale under a second mortgage takes the estate subject to all prior liens and is bound to know that the mortgagor or owner of the equity of redemption will be entitled to the possession and rents of the premises during the running of the period of redemption.</p> <p>3. Same— What a Purchaser at a Foreclosure Sale Under a Second Mortgage Acquires.—The purchaser at a foreclosure sale under a second mortgage acquires an interest in the equity of redemption only, and presumably bids no more than the premises are worth in excess of the amount secured by the prior mortgage.</p>

<p>1. Guaranty—Of Promissory Note, An Original Contract.—The contract of guaranty is an original contract and the guarantor of a promissory note is regarded in law as an original promisor and not a surety.</p> <p>2. Same—Contracts of, in General.—The following writing on the back of a promissory note—“I hereby guarantee the prompt payment of the within note at maturity, with interest. H. W. Duncanson”—is a guaranty of payment and not merely of the collection of the note.</p> <p>"3. Same—Writing an Express Contract Over the Guarantor's Signature.—Where a person puts his signature in blank as guarantor upon the back of a promissory note, the payee of the note, is warranted in writing the express guaranty over the signature.</p> <p>4. Presumptions—As tb When an Indorsement is Signed.—The law presumes that the signature of a guarantor on a promissory note was placed upon it at the time the note was executed.</p> <p>5. Consideration—Of the Contract of Guaranty.—The consideration of a promissory note is the consideration of the contract of guaranty indorsed upon it.</p>

Assumpsit, for money wrongfully taken. 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>Assumpsit, for labor, etc.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1899.</p>

Action on the 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>1. Personal Injuries—Mere Violation of Ordinances Not Alone Sufficient to Justify a Recovery.—The mere failure to obey an ordinance is not of itself sufficient to entitle plaintiff to recover for personal injuries. It must also appear that such failure was the proximate cause of, or at least contributed toward the injury.</p> <p>2. Same—Where the Violation of an Ordinance is Equivalent to a Willful Injury.—Where it appears that the failure to obey an ordinance was the proximate cause of, or at least contributed toward the injury, a violation of the ordinance or statute is said to be equivalent to willful injury.</p> <p>3. Master and Servant—Where Servant Assumes Risks of the Employment.—Where a servant, who was injured by an elevator, had been in the same employment for three months and had opportunity of knowing where the elevator was, and that it was used by others and liable not to be standing at the door of the shaft, whatever danger there may have been from such use of the elevator, he must be held to have known and assumed the risk of.</p> <p>4. Negligence—TWiere Question Need Not Be Submitted to Jury.— A question of negligence upon which reasonable minds would not be likely to differ, need not be submitted to the jury.</p>

<p>1. Parties—Estoppel of Complainant to Deny that Those Made Defendant are Parties.—After a complainant has made a person a party defendant to his bill and alleges that he lias or claims to have some interest in the property in question either as owner or otherwise, he is estopped from saying that such person has no standing in court to question the appointment of a receiver.</p> <p>2. Appeals—From Interlocutory Orders Appointing Receivers.— The act authorizing appeals from interlocutory orders does not contemplate the awaiting of the joining of the issue upon the allegations of the bill before an appeal can be taken by a defendant alleged to have an interest in the subject-matter of the litigation.</p> <p>3. Statutes—Construction of the Act Allowing Appeals from Interlocutory Orders.—-The manifest purpose of the act allowing appeals from interlocutory orders appointing receivers is to afford a speedy and summary review of the proceeding in behalf of a defendant who may deem himself injured by the order of the trial court.</p> <p>4. Receivers—Appointment Without Notice.—It is the settled practice to require notice by the moving party to be given to his adversary of an application for the appointment of a receiver over his property, except in case of the gravest emergency, such as his absconding, iireparable injury, etc.</p> <p>5. Same—Rule Requiring Notice Not a Matter of Discretion.—The rule of practice requiring notice to be given of the application for the appointment of a receiver seems to be not a matter of discretion with the court, but an inflexible rule which the courts are not at liberty to disregard.</p> <p>6. Same—Facfs to he Shown upon an Application for a Receiver Without Notice.—To warrant a court in entertaining an appplication for a receiver without notice, it must appear that the delay resulting from the giving of the notice would defeat the plaintiff’s rights or result in great injury to him. And when the application is ex parte upon the ground of extreme necessity the particular facts and circumstances rendering such summary proceedings necessary, must be set forth.</p>

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

<p>1. Usury—Penalty in This State.—Where a person enters into a contract to receive a greater rate of interest than the rate allowed by law, upon any contract, verbal or written, he forfeits the whole of the interest contracted to be received and can only recover the principal sum due.</p> <p>3. Same—Must Be Conclusive.—In order to sustain the charge of usury, the statute being highly penal in its nature, the evidence must be satisfactory and clear.</p> <p>3. Same—There Must Be a Contract.—In order to establish a violation of the statute of usury there must be a contract to receive a greater rate of interest than that allowed by law.</p> <p>4, Same—A Corrupt Intent Necessary.—An unlawful and corrupt intent is the very essence of a usurious transaction.</p> <p>u. Chancery Practice— Exceptions to a Masters Report Must Be Certain.—An exception to a master’s report must be sufficiently certain to enable the court to know definitely and certainly the matter to which it refers.</p>

<p>1. Justices op the Peace—Where Justice is Absent at Hour Set in Summons for Defendant to Appear.—A defendant who has been served with summons to appear before a justice of the peace at a certain hour need not wait more than an hour after the appointed time for an absent justice to appear. He is justified in leaving, and in relying upon the suit against him being discontinued.</p> <p>3. Same—Delay in Opening Court for More than Ttuo Hours Amounts to a Discontinuance.—The delay on the part of the justice to open his court for more than two hours after the time appointed in the summons, and his subsequent adjournment of the cause, amounts to a discontinuance of the suit.</p> <p>3. Equity Jurisdiction—The Remedy. Where a Judgment is Void.— Where a judgment against a defendant is void, a case for equity jurisdiction is made, and the remedy is by a bill in chancery and not by certiorari.</p>

<p>Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of Cook County; the Hon. Elbridoe Hanecy, Judge, presiding. Heard in the Branch -Appellate Court at the October term, 1899.</p>

<p>1. Garnishment—Limit of the Recovery.—In garnishment proceedings the garnishor can only recover of the person garnisheed when the judgment debtor in whose name the suit is instituted could recover.</p> <p>3. Same—Rights of the Garnishee.—Every garnishee can avail himself of all demands which could have availed him if he had not been garnisheed, and he is liable only for such balance as may remain after all mutual demands between himself and his creditor are adjusted.</p> <p>3. Same—Rule of Liability.—-A person garnisheed is liable to the garnishor for the balance only between him and his creditor when their mutual demands have been adjusted.</p> <p>4. Same—The Rights of the Garnishor.—The rights of the garnishor are not fixed by the service of the summons; they are controlled by the adjustment of the mutual demands between the garnishee and the judgment debtor in whose name the suit is instituted.</p> <p>5. Same—Requisite of a Recovery. —There must be evidence of a judgment and of the issue and return of an execution “ no property found ” in order to sustain a recovery.</p> <p>6. Banks and Banking—Secret Agreements with Depositors.—A secret arrangement between a depositor and a bank can not affect the rights of third persons, nor limit the liability of the bank.</p> <p>7. Same—Liability as to Special Deposits.—When a bank receives a deposit for a special purpose agreed upon, as between itself and the depositor, its liability is limited by the agreement.</p> <p>8. Same—Special Deposits.—Where no checks have been drawn for the use of the special enterprise, or where it has been abandoned, the bank may appropriate the deposit in payment of any indebtedness to it by the depositor.</p> <p>9. Same—Applying Special Deposits on Overdue Notes.—Where a bank holds an overdue note against a depositor it has the right to charge such note up against his deposit account; and if it does so before checks drawn by such depositor are presented for payment it will be entitled to hold the deposit against any check afterward presented. But if the maker of the check presents it himself, the bank would have the right to refuse payment to him, and could appropriate the deposit to the payment of his debt.</p> <p>10. Bill of Exceptions—Amendment at a Subsequent Term.—A bill of exceptions, which by inadvertence, omission or mistake does not truly represent what transpired at the trial, may be amended at a subsequent term so as to conform to the real facts. But there must be some minute entry or memorandum upon the judge’s docket, or in the record or files, upon which to base the amendment. It can not be amended upon parol evidence from the memory of the witnesses or from the recollection of the judge.</p>

<p>1. Practice—Affidavits of Jurors for Purpose of Setting Aside Verdict.-—It is the settled law in this State that the affidavits of jurors can not be received for the purpose of showing cause for setting aside their verdict.</p>

<p>Assumpsit, on a policy of insurance. 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>A ssiunpsit..—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

Trespass on the 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>1. Contracts—Parties Can Not Take Advantage of Their Ouin Default.—A party will not be permitted to declare his contract at an end, when to do so will be to permit him to take advantage of his own default.</p> <p>3. Specific Performance— Void Contracts.—Where, by its terms, a contract becomes null and void, neither party will be entitled to a specific performance.</p>

<p>1. Words and Phrases—Meaning of the Term O. X.—Where there has been no decision of the court orally rendered, the term “ O. K.” indorsed upon a draft of a decree means nothing more or less than a consent to the entry of that decree.</p>

<p>Bill to Enforce the Payment of a Judgment, against an insolvent corporation. Error to the Superior Court of Cook County; the Hon. Henry Y. Freeman, Judge, presiding. Heard in this court at the March term, 1900.</p>

<p>1. Foreclosure— Of a Mortgage by the Holder of a Coupon Note.— The holder of interest or coupon notes secured by a mortgage is entitled f oredose without waiting until the other coupon notes secured by the same mortgage become due.</p>

<p>1. Master and Servant—Duty of the Master to Furnish a Reasonably Safe Flaee for the Servant—Exception to the Rule.—The rule that the master is bound to use reasonable care to furnish a reasonably safe place for his servant to work in, is qualified by another rule that if the master fails in this respect and the servant, being fully advised of the dangers, continues to voluntarily work in the unsafe place, he takes the chances of the obvious danger.</p> <p>2 Same—Duty to Furnish Protection to Servants.—An employer must exercise reasonable care in furnishing reasonably safe protection to his employes while at work.</p> <p>8. Same—Failing to Perform Assumed Duties.—The master must use all reasonable care to furnish his servants a reasonably safe place in which to work and use proper diligence to keep such place in a reasonably safe condition. This rule of duty renders an employer liable for injuries occurring in cases where he has been guilty of a breach of such duty, as a failure of an assumed duty, by which an injury results to one hi the ekercise of due care, creates a liability at common law.</p> <p>4. Same—Where the Injury is Due to Ordinary Hazards.—The rule that exempts employers from liability where the injury is due to the ordinary hazards incident to the employment, and which are assumed by the employe, applies only to cases where there is no breach of duty by the employer.</p> <p>5. Questions of Fact—Knoivledge of Hazards and Assumption of Risks.—It is a question of fact for the jury to determine whether, under all the circumstances in evidence, the plaintiff knew the danger and took upon himself the risk of being injured.</p>

<p>1. Chancery Practice—Power to Review a Masters Report—It is not the law in this State that the report of a master in chancery may be reviewed or set aside only for the same reasons that the verdict of a jury may be set aside.</p> <p>2. Presumptions—A Person Who Takes a Conveyance of Real Estate is a Bona Fide Purchaser.—When a party takes a conveyance for land it will be presumed that he is a bona fide purchaser, and the burden of proof is upon those attacking such conveyance to overcome such presumption.</p>

<p>1. Agents—General Agenei/ Defined.—A general agent is one who is empowered to transact all the business of his principal of a particular kind or in a particular place.</p> <p>2. Same—Extent of Authority Can Not he Assumed Because of Convenience.—Every authority of an agent must find its ultimate source in some act or word of the principal indicative of his intention, and where the authority is sought to be implied from the . words or conduct of the principal, its extent can not exceed the necessary and legitimate effect of the words and conduct relied upon.</p> <p>3. Same—Inducement Which Moves an Agent Does Not Enlarge His Authority.—The consideration or inducement wlficli moves an agent to undertake to bind his principal does not enlarge his authority to bind such principal.</p> <p>4. Jury—Polling, When Improper.—Where a verdict is directed by the court, it is improper to permit the polling of the jury.</p>

<p>Trespass on the Case, —Death from negligence. Appeal from the Circuit Court of Cook County; the Hon. Charles E. Fuller, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Jury— When Its Findings Will Not Bind the Court.—While a mere preponderance in the number of witnesses is not enough to justify a reversal of a judgment, yet where, in addition to such preponderance against it, the testimony upon which the judgment rests is itself so inconsistent with the physical conditions as to indicate that the witnesses were mistaken, the fact that the jury have passed upon the issues will not bind this court.</p>

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

Assumpsit, for coal sold and delivered. 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>1. Practice—Suits Against Partners on a Partnership Contract.— In a suit against partners on a partnership contract, judgment may be had against those served with process and a scire facias may be issued thereafter against those not served with process, to make them parties to the judgment.</p>

<p>1. Witnesses—Impeachment of.—In impeaching a witness the proper inquiry is whether the witness knows the general reputation of the person sought to be impeached or sustained, among his neighbors, for truth and veracity, which question the witness must answer in the affirmative before he can be asked what that reputation is.</p> <p>2. Practice — Impeachment of Witnesses—Cross-examination.— When an impeaching witness has testified to general reputation the adverse party may cross-examine him as to his means of knowledge and the grounds of his opinion.</p> <p>S. Testimony—By Deposition — What is accessary to Render it Admissible.—In order to render testimony taken by deposition admissible, it must appear that the party against whom it is to be used or those in privity had opportunity to examine the person testifying.</p> <p>4. Same—Effect of a Refusal to Testify on Cross-examination.— Where a witness refuses on cross-examination to answer questions within such time as not unnecessarily to delay the trial after the exercise of the compulsory power of the court, his evidence in chief should be excluded.</p> <p>5. Courts—Exercise of Power to Compel Witnesses to Testify.— Where a witness refuses to answer proper questions on cross-examination, it is error on the part of the court upon request of counsel, to refuse to use its compulsory power to compel the witness to answer.</p>

<p>1. Pleading—Demurrer Expressed to be to Each Count etc.—A demurrer is a single pleading, but when expressed to be to each count of a declaration it is in effect as if a separate demurrer had been filed to each count.</p> <p>2. Practice—Entering Judgment on Overruling a Demurrer.— Where a demurrer to each count of a declaration is overruled and the defendant elects to abide by his demurrer and judgment is entered generally in consequence, if any count of tiie declaration is insufficient in substance, the judgment can not be sustained, for the reason that it can not be known that damages were not assessed upon the insufficient count.</p> <p>3. Damnum Absque Injuria—Obstruction, of Streets. —An obstruction in a public street, if it does not practically affect the use or enjoyment of the neighboring property and thereby impair its value, is absque injuria and no action will lie.</p> <p>4. Railroads—Unusual Vibrations of Buildings—Special Damages. —Any unusual vibration of a building fronting on a public street by the operation of a railroad in the street which causes substantial damage to the property so that its market value is thereby decreased, is actionable.</p>

<p>1. Defenses—'When Objection that Complainant Has a Complete and Adequate Remedy at Law, is Available by Answer as a Defense.— The objection that a complainant has a complete and adequate remedy at law, is available by answer as a defense notwithstanding a demurrer upon the same ground has been overruled.</p> <p>2. Equity Jurisdiction— Where Relief Can Usually be Sad in an Action for Damages.—Compensation for a breach of contract where the measure of damages is not uncertain or difficult to ascertain, can usually be had in an action for damages, and equity will not take jurisdiction.</p> <p>3. Same—Upon What it Rests.—The jurisdiction of equity does not proceed upon any distinction as to the subject-matter, whether real estate, personalty or patents, but upon the ground that a suit for damages at law may not afford a complete remedy.</p>

<p>Certiorari, to a justice of the peace. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Lease—Where a Lease Executed by the Lessor only, Binds the Lessee.—Where a lease contains mutual covenants and is executed by the lessor only, but is delivered to and accepted by the lessee, the latter is bound by its terms.</p>

<p>1. Cross-bill—When it May be Amended.—Where an amendment to a cross-bill does not change the real issue, but only the allegation as to the time when an agreement first went into effect, it may properly be allowed.</p> <p>2. Appellate Court Practice— When Objection that Only One of Two Partners Has Taken Appeal, Comes Too Late.—After both parties have united in the assignment of errors and there is joinder in error, it is too late for appellees to insist that only one of two members of a partnership has appealed.</p> <p>3. Same—One Party May Use the Names of Others for Purpose of Appeal.—The statute provides (Sec. 71 Practice Act) that where a decree is rendered against two or more parties, either party may remove such suit to the Appellate Court by appeal or writ of error, and for that purpose shall be permitted to use the names of the other parties if necessary.</p>

<p>1. Libel—Words Tending to Injure One in His Trade, Profession or Calling.—Hie general rule in relation to the speaking or writing oí words of one in a particular calling may be stated as follows : Any words spoken of such a person in his office, trade, profession or business, which tend to impair his credit, or charge him with fraud, or indirect dealings, or witli incapacity, and that tend to injure him in his trade, profession or calling, are actionable without proof of special damage.</p> <p>2. Same—What the Declaration Must Contain.—To maintain an action on the ground that words spoken of a person with reference to his profession or occupation are in themselves actionable, the declaration must contain a distinct averment that the words were spoken of and concerning the plaintiff and of and concerning his profession or occupation."</p> <p>3. Same—Action Sustained for Published Words Which Would Not be Actionable if Spoken.—An action for libel may be sustained for words published which tend to bring a party into public hatred, contempt, or ridicule, even though the same words spoken would not be actionable.</p> <p>4.. Same—Sufficiency of Words is a Question of Law.—The sufficimey of the words is a question of law for the court, and not of fact for the jury, and there is no error in taking the case from the jury by a peremptory instruction directing them to find for the defendant.</p>

Bill for Separate Maintenance.—Cross-bill to annul the marriage contract. 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>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Estoppel—By Oral Statements.—The maker of a note secured by a trust deed was inquired of by a party who had been applied to for a loan by the holder of the note and who offered them as collateral security. In response to such inquiry he stated that the note and trust deed were still unpaid and all right. It was held, that the maker was afterward estopped from denying the validity of such note and trust deed as against the person making the loan and taking them as collateral security.</p>

<p>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>1. Contracts—When Cancellation is Justified.—The failure of a sub-agent in an insurance business to remit the balance of premiums collected, after deducting his commissions, is held to have been a breach of his contract, and when connected with a failure to account for policies in his hands for delivery, is amply sufficient to justify a cancellation of his contract.</p>

Trespass on the Case, for personal injuries. 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. Mr. Presiding Justice Horton not concurring.

<p>1. Chancery Practice—Order Striking a Cross-Bill from the Files ■ Interlocutory.-—An order striking a cross-bill from the files is interlocutory and not appealable.</p>

<p>1. Equity Jurisdiction— Where Trust Funds May be Pursued,.— The rule in Illinois is that trust funds may only be pursued when they can be clearly distinguished from other property held by the trustee, or those representing him.</p> <p>2. Same—When Beneficial Owner Must Resort to Personal Liability of Trustee.—If the trust property has been transferred to a bona fide purchaser for value without notice, or has lost its identity, the beneficial owner must, and under other circumstauces may, resort to the personal liability of the wrong-doing trustee.</p> <p>3. Same—Where Beneficial Owner Occupies the Position of a General Creditor.—Where a trustee has converted a trust fund into money, and mingled it with his other moneys, so that it can not be separated from the latter, the beneficial owner occupies the position of a general creditor of the estate, and can not follow the fund into the hands of an assignee for the benefit of creditors.</p>

<p>Action on the Case.—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. Gifts—Causa Mortis, Defined.—A gift causa mortis must be in view of the donor’s death, and made to take effect only in the event of his death by his existing disorder; there must be an actual delivery of the subject of the gift.</p> <p>2. Same—Inter Vivos—Essentials.—It is essential to a gift inter vivos that the gift be absolute and irrevocable; that the donor part with all present and future dominion over it; that it go into effect immediately; that there be a delivery to the donee and such change of possession as to put it out of the power of the donor to repossess himself of the thing given.</p> <p>3. Same—Causa Mortis and Inter Vivos Distinguished.—A gift inter vivos is chiefly distinguished from a gift causa mortis by the fact that the former is not made in view of expected or impending death, and that it is not revocable in its nature.</p> <p>4. Same—Inter Vivos, of Glioses in Action.—If no claims of creditors intervene to affect its validity, a gift inter vivos of a chose, in action stands on the same footing as a sale; and when such a gift is completed by a delivery, the property vests immediately and irrevocably in the donee, and the donor has no more right over it than any other person.</p>

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

<p>Bill for Injunction.—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>

<p>1. Master and Servant—Duty of Master to Use Reasonable Care. —It is the duty of the master to use reasonable care and diligence in providing safe machinery, tracks and switches for the use of those engaged in its service.</p> <p>3. Same—What Risks the Servant Assumes.—Subject to the implied undertaking of the master that he will use reasonable care to furnish safe premises, machinery and appliances, and to employ competent and prudent co-employes, the servant assumes all the risks ordinarily incident to the employment.</p> <p>3. Verdict—Where the Court May Direct a Verdict for the Defendant.—Where there is no evidence before the jury on material issues in favor of the party holding the affirmative on which the jury could • reasonably find in his favor, the court will direct a verdict in favor of the other party.</p>

<p>Mechanic’s Lien.—Appeal from the Superior Court of Cook County; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Appeals—From Justices of the Peace—Appellant May Dismiss Hi.s Appeal.— An appellant has an undoubted right to dismiss his appeal. If the appellee is not satisfied with the judgment of the justice of the peace, he should himself have taken an appeal. By not doing so, he acquiesced in the judgment and must be content with it.</p>

<p>Trespass on the Case.—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, 1900.</p>

<p>1. Carriers of Passengers—Tickets and Fares.—A passenger upon a street car paid her fare for the entire trip and requested a transfer ticket to a connecting line but was inadvertently given one on another and different line, which upon presentation to the conductor on the proper line was refused and upon her refusal to pay an additional fare she was removed from the car. Under these circumstances it was held that the conductor had no right to expel her from the car and the company was held liable.</p> <p>3. Same—Resistance of Passengers to Officers of the Train.—A passenger can not recover for injuries which he voluntarily brings upon himself by resisting" the efforts of the trainmen to remove him from the -train, or undertaking to retain his place on the train by force.</p> <p>3. Same—Punitive Damages for Removal of Passengers.—When trainmen in removing a passenger from the train for the non-payment of fare, act in a willful and malicious manner or with a wanton disregard of the passenger’s rights, the jury have a right to assess punitive or exemplary damages in addition to damages for actual injuries received.</p> <p>4. Same—Duty Toward Passengers.—It is the duty of a carrier to see that its passengers are not exposed to the indignity of a public ejection from the train during the progress of the trip for which the carrier has agreed to carry him, through the negligence or mistake of its agent in giving him a wrong ticket or transfer.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Fellow-servants—Switching Crews.—Two switching crews of a railroad company are fellow-servants, and the company is not liable for an injury to a member of one of the crews by reason of negligence on the part of the other crew.</p>

<p>1. Corporations—Acis Not Ultra Vires for Want of Power.—Where an act is not ultra vires for want of power in a, corporation, but is, for want of power in the agent or officer performing it, or because of the disregard of the formalities which the law requires to be observed, or is an improper use of one of its enumerated powers, it may nevertheless be valid as to third persons. Ultra vires, in the legitimate use of the term, applies only to acts which are beyond the purpose of the corporation and which can not be sanctioned by the stockholders.</p> <p>2. Same—Contracts Ultra Vires for Want of Power—Ratification.— Where a contract is ultra vires for an absolute want of power in the corporation to make it, there can be no power to render it valid by ratification.</p> <p>3. Estoppel—To Plead Ultra Vires.—Where a contract of a corporation is void for an absolute want of power to make it, it can not become valid and legal as a contract by way of estoppel through some other act of the corporation.</p> <p>4. Appeal Bonds—Execution of, by Corporations as Sureties.—The execution of an appeal bond as surety by a corporation created for the purpose of dealing in merchandise is an act outside of the purpose for which it is created and consequently illegal.</p> <p>5. Ultra V mss—Corporal ions Delaying Creditors.—The act of a corporation in delaying other creditors of its debtor by becoming surety for him on an appeal bond in order that it may collect its own claim can not be said to be a power necessarily implied from any of the powers conferred by a charter authorizing a general dealing in merchandise.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbridgb Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1890.</p>

<p>Assumpsit, on a policy of life insurance. Appeal from the Circuit Court of Cook County; the Hon. John C. Gar ver, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>Trespass, vi et armis.—Error to the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>Foreclosure.—Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1900.</p>

<p>1. Practice—Actions on Contracts Against Two or More.—The rule is inflexible that in actions on contracts against two or more, and all are served with process, judgment must be against all or none.</p>

<p>1. Statutes—Prohibiting Corporations from Selling Property— Construction of.—A statute granting the power to sell includes the power to mortgage. By parity of reasoning a statute prohibiting a corporation from selling its property includes, by necessary implication, the prohibition of the power to mortgage, since a mortgage may become by defeasance an absolute sale.</p> <p>2. Corporations—Limitations to Corporate Action Will be Rigorously Maintained.—-Courts will rigorously maintain limitations to corporate action.</p> <p>3. Trusts—Facts Indicating.—The fact that in the control of property the trustees were to consult with and be guided by the advice and wish of testator’s son, indicates very clearly that it was intended to be a trust.</p> <p>4. Same—Pendency of Executorship Not Inconsistent with Pendency of Trust.—The pendency of the executorship is not at all inconsistent with the pendency of the trust separate and distinct from it, at the same time.</p> <p>5. Same—Effect of Appointing an Executor to he a Trustee.—If a testator in his will appoint his executor to be a trustee, it is as if different persons had been appointed to such offices; a court of equity can not remove him from the executorship, for courts of probate have exclusive jurisdiction over the appointment and removal of administrators and executors; but if the office of trustee is separate from and independent of the office of executor, a court of equity may remove him from the office of trustee, and leave him to act as executor, or if he has completed his duties as executor and is holding and administering the estate simply as trustee, a court of equity may remove him.</p> <p>6. Same—Where Voting of Trust Stock is Committed to the Joint Discretion of Two Persons.—Where the voting of trust stock is a matter which the testator has committed to the joint discretion of two persons as trustees it is a matter in which neither one can assume to act contrary to the discretion of the other, either alone or conjointly, with any other than his co-trustee. Nor can the Probate Court exercise the discretion reposed jointly m the two trustees by the testator.</p> <p>7. Trustees—Power of Court over Discretionary Action of.—The court can not compel a dissenting trustee to join in a conveyance and execute a sale which has been made without his approval or his consent.</p> <p>8. Same—When Court of Chancery May Remove.—If either of the trustees refuses to act, or is acting wrongfully, or in a manner which constitutes mischievous or negligent conduct in relation to the trust, a court of chancery may be invoked to remove such trustees, if such action appears necessary for the preservation of the trust estate.</p> <p>9. Appellate Court Practice—Defects Not Pointed Out Below.—A defect not pointed out in the court below, where amendment might have cured it, can not be availed of in the Appellate Court.</p>

<p>1. Negligence—Of Sub-contractors and Independent Mechanics.— The owner of a building abutting upon the sidewalk of a public street, in a city, who employs competent mechanics to paint the same, retaining no control over the manner of doing the work and giving no direction» as to the details thereof, is not liable for injuries to persons on the walk below, resulting from the negligence of such mechanics in permitting a coil of rope to fall from their scaffolds.</p> <p>3. Same—Owners of Premises and Sub-contractors.—It is sufficient to relieve the owner of a building under repairs, so far as concerns the matter of possession, when the contractor is in possession of the premises with an exclusive control of the work.</p> <p>3. Same—Owner Not Liable Because He Employs an Architect to Inspect the Work.—The fact that an owner of a building undergoing repairs emplo3rs an architect to inspect the work and see that it is done according to the contract does not render him liable for the negligence of the mechanics doing the work.</p>

Assumpsit, under section 18 of the act concerning corporations. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heal'd in this court at the March term, 1900.

<p>1. Contracts—Remedies on Partial Performances.—Where a party in good faith partially performs the terms and conditions of a contract on his part and the other party receives the benefits of such partial performance and does not nor can not restore to the party performing the fruits of such partial performance and place him in statu quo, the consideration may be recovered, less any damages suffered by reason of his failure to fully perform the contract.</p>

<p>Assumpsit, on a certificate of a beneficiary association. Error to the Superior Court of Cook County; the Hon. Axel Chytratjs, Judge, presiding. Heard in this court at the March term, 1900.</p>

<p>1. Master and Servant—Servant Not Required to Examine Appliances.—A servant is not required to make a careful and critical examination of appliances furnished by the master before he uses them. He has the right to rely upon the performance by the master of his duty to furnish reasonably safe appliances for the use of his employes.</p> <p>2. Evidence—Of Directions by the Master to Repair After an Accident.—Evidence of directions given by a master to repair appliances after an injury, to be admissible, as tending to show negligence, must be so close in point of time to the injury as to be a part of the res gestae. The fact of negligence is to be determined by what occurred before and at the time of the accident.</p> <p>3. Instructions—Not to be Misleading.—An instruction in an action for personal injuries which is calculated to mislead the jury by omitting the question of the master’s liability for the acts of his agents or employes with reference to the improper construction of appliances, is erroneous.</p>

<p>Malicious Prosecution, for maliciously suing out an attachment. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1899.</p>

<p>1. Appellate Court Practice—Passing upon Motions to Suppress Depositions.—In order to enable a court of review to pass upon the propriety of an order suppressing a deposition, the proceeding upon the motion and all the evidence presented thereon must be preserved in a bill of exceptions, signed and sealed by the trial judge at the term of the entering of the order, or within the time fixed by order at that term.</p> <p>g. Bill of Exceptions—Must Show that it Contains All the Evidence.—Where it is sought to question the propriety of the trial court in entering an order suppressing a deposition the bill of exceptions must contain all the evidence by affidavit or otherwise, presented to the court upon the motion to suppress.</p> <p>3. Same—Appendix to, When No Part of the Bill.—An appendix to a bill of exceptions, under a separate caption containing certain affidavits bearing upon the taking of a deposition, the suppression of which is assigned for error, attached to the bill after the expiration of the time for signing the same has expired, is no part of the bill of exceptions.</p> <p>4. Trials—Conduct of the Judge Should Be Impartial.—An apparently unfriendly and severe attitude of a presiding judge toward counsel engaged in the trial of a cause not only tends to humiliate the lawyer but as well to prejudice the interests of his client whom he represents before the jury, and is to be avoided.</p>

Trespass on the Case.—Death from negligent act. Error from the Circuit Court of Cook County; the Hon. John C. Garver, Judge, presiding. Heard i'n this court at the March term, 1900.

Attachment, under the water-craft act. Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1900.

<p>Replevin.—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>1. Practice— Where Verdict Should be Set Aside and a yew Trial Granted.—Where the verdict returned is against the manifest weight of the evidence it is the duty of the trial court to set it aside and to grant a new trial, and if this is not done, it becomes the duty of this court upon review to reverse the judgment based upon such verdict.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard at the March term, 1900, of this court.</p>

<p>1. Divorce—Condonation in General and aé Applied to Specific Acts.—The act of condonation operates only to forgive the specific acts condoned, when the forgiveness is applied to specific acts, but where no specific acts of offense are known or disclosed, and where no inquiry is made as to specific acts and there is no concealment or denial upon inquiry, but the confession is of general infidelity without specifications, a condonation also general applies as well to one precedent offense as to another, and includes them all.'</p> <p>3. Same—What Condonation Implies.—Condonation is a forgiveness with the implied condition that the condoning party shall thereafter be treated with conjugal kindness and that when this condition is afterward violated, the right to the remedy is revived.</p> <p>3. Same—The Ride in the Ecclesiastical Courts.—In the ecclesiastical courts of England subsequent cruelty operates to revive a remedy for adultery previously condoned and the cruelty necessary for this purpose may be less than the cruelty necessary to constitute an affirmative ground for a divorce.</p> <p>4. Jury Trial—Peremptory Instruction.—In a suit for a divorce where reasonable minds can not differ as to the established fact of a condonation of the offense of adultery charged in the bill, a peremptory direction to the jury to find in the affirmative upon such question does not prejudice the complainant's right to a trial by jury where no other or different result of a trial could be permitted to stand.</p>

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

<p>1. Building and Loan Associations.—Usurious Premiums.—A premium in a building «and loan association not fixed by bidding and which is not the result of a competitive sale of the money on hand, for loaning, is usurious.</p>

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

<p>Assumpsit, on promissory notes. 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. Foreclosure Sales—Rights of Purchasers.—Where there is no redemption from a sale under a decree of foreclosure, the title and rights of the purchaser become vested and fixed as of the date of the expiration of the time allowed by statute for the redemption from such sales.</p> <p>2. Receivers— Under Decrees of Foreclosure.—The purchaser of a farm at a foreclosure sale becomes the absolute owner at the expiration of the time allowed by the statute for redemption and is entitled to all his rights as such. The rights and duties of a receiver appointed under the decree, with reference to the farm, are then at an end.</p> <p>3. Same—No Power After the Period for Redemption Has Expired. —After the period allowed for a redemption from a sale in foreclosure has expired without such redemption having been made, and the purchaser has become the owner of the premises sold, a receiver appointed by the decree has no authority to compel a tenant to pay rent or to replace buildings removed by him, subsequent to the time when the title became absolute in the purchaser.</p> <p>4. Foreclosure Suits—When the Jurisdiction of the Court Ends.— The rights of the parties to a suit to foreclose a mortgage are at an end when the time allowed for the redemption from the sale expires arid no redemption has taken place, and the jurisdiction of the court whose aid has been invoked for the purposes of the suit ceases.</p>

<p>1. Appeals—From Interlocutory Orders. —Under R. S., Chap. 22, Sec. 53, appeals are taken by filing an appeal bond to be approved by the clerk of the court below. Appeals in this State are allowed only by virtue of the statute, but for which no appeal lies from an interlocutory order.</p> <p>2. Interlocutory Orders— Appeals From.— Under the statute (R. S., Chap. 22, Sec. 52) appeals may be taken from interlocutory orders or decrees granting an injunction or overruling a motion to dissolve the same, but such appeal must be taken within thirty days from the entry of such order or decree and be perfected in the Appellate Court within sixty days from the entry of such order or decree.</p>

<p>1. Instructions—Jury Not Bound to Believe a Witness,—An instruction stating in terms that the jury are not necessarily bound to believe anything to be a fact because a witness has stated it to be so, provided they believe from the evidence that such witness is mistaken or has sworn falsely to such fact, is proper and expressly approved in Chicago & A. R. R. Co. v. Fisher, 38 Ill. App. 33.</p>

<p>Mortgage Foreclosure.—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>1. Appeals—From Trials of the Bights of Property.—An appeal lies to the Appellate Court from the judgment of the County Court in a proceeding for the trial of the rights of property.</p>

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

<p>1. Equity Pleadings—Sufficiency of—Bills to Restrain Trespasses-—General allegations of irreparable injury, without an allegation of insolvency, or inability of the defendant to respond in damages to the amount of the loss that may be suffered, are not sufficient to warrant the enjoining of a threatened trespass. Nor is the fact of a single trespass having been committed, sufficient.</p>

<p>1. Appellate Court Practice—Papers Not a Part of the Record Not To Be Considered, When.—A copy of a paper appearing in the transcript purporting to be a verdict can not be considered by the court unless incorporated in a bill of exceptions.</p>

<p>1. Special Interrogatories—Leading in Form, No Objection.—It is no objection to a special interrogatory that it is leading in form.</p> <p>2. Same—When To Be Submitted.—When special interrogatories are so framed as to present to the minds of the jury a single material fact involved in the issue being tried, it is fatal error to refuse to submit them.</p> <p>3. Same—Must Be Restricted to Ultimate Facts.—Special interrogatories for a jury to answer must be restricted to those ultimate facts upon which the rights of the parties directly depend.</p>

<p>1. Former Decisions—Followed.—The court cites Follansbee v. N. W. Mut. Life Ins. Co., 87 Ill. App. 609, as governing in this case.</p>

<p>1. Warranties—What Can Not be Relied upon to Avoid a Policy of Insurance.—The statement by insured that he has no brothers dead where one has died without his knowledge can not be treated as a warranty with the effect to avoid the policy,</p> <p>2. Insurance— Where False Representations Will Not Avoid a Policy.—Where there is no moral fraud, a representation, although false, does not avoid the policy unless such representation be material—and its materiality is a question, upon the evidence, for the jury.</p>

Assumpsit, for money had and received. Appeal from the County Court of Cook County; the Hon. M. W. Thompson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.

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

<p>Assumpsit, on a contract of insurance. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Appellate Court Practice—Errors Must Be Assigned.—Points not presented, by. the assignments of error will not be considered by this court.</p> <p>2. Variance—Indictment and, Proofs.—An indictmentfor an assault upon AVilliam Marshall is sustained by proofs of an assault upon W. M. Marshall, where the latter is identified as the real person assaulted.</p> <p>3. Instructions—Proper Manner of Giving.—It is the better practice in giving instructions to bring together all the instructions bearing upon the same question, and read them together, as the jury will understand them better and be less likely to be confused.</p>

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

<p>Action in Case, for personal injuries. Error to the Circuit Court of Cook County: the Hon. Elbridgb Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

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

Proceedings under section 81, chapter 3, R. S., entitled “ Administration of Estates,” for the recovery of assets. Error to the .Circuit Court of St. Clair County; the Hon. Martin W. Schaefer. Judge, presiding. Heard in this court at the February term, 1900.

<p>Debt, on a replexfin bond. Appeal from the Circuit Court of St. Clair County: the Hon. Martin W. Schaefer. Judge, presiding. Heard in this court at the February term, 1900.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Marion County; the Hon. Samuel L.' Dwight, Judge, presiding. Heard in this court at the February term, 1900.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1900.

<p>t. Delivery—Of Deeds—Acceptance.—The delivery of a deed is essential to its execution. Mere manual possession of it by the grantee is not necessarily an acceptance, and an acceptance is just as necessary to pass the title as a delivery by the grantor.</p> <p>3. Contracts—The Minds of the Parties Must Meet.—It is a requisite^, of all contracts that the minds of the contracting parties must meet and :, assent to the same thing, in the same, sense and at the same moment of time.</p> <p>3. Conversion —Defined.—A conversion is a positive, tortious act, which deprives a person of his property permanently or for an indefinite term. *</p> <p>4. Same—Demand and Refusal, Evidence of.—Demand and refusal are evidence of a conversion when the defendant is in such a condition that he can deliver the property if he will.</p> <p>5. Same—Mere Non-feasance Not of Itself Sufficient to Maintain Trover.—Mere non-feasance or neglect of some legal duty will not suffice to maintain trover, although it may constitute sufficient cause to maintain an action on the case.</p> <p>6. Tbover— Requisites of the Action,.—In order to maintain an action of trover the plaintiff must have had possession of the property claimed to have been converted, or the right to immediate possession.</p> <p>7. Same—When the Action Will Not Lie.—Trover will not lie unless there has been a tortious conversion of the property in dispute. Mere non-feasance or mere refusal to fulfill a contract will not warrant the action.</p> <p>8. Tender—What is Not Valid as.—The party to whom a tender is made must be allowed sufficient opportunity to examine and determine what is tendered. It is not a valid tender of a thousand dollars to offer a package of bills, saying it contains a thousand dollars, without allowing the party to whom the tender is made, an opportunity to examine it for the purpose of ascertaining if the bills are genuine, and if it contains the amount stated, of legal tender money.</p> <p>9. Same—Of Specific Articles of Property.—When specific articles of property are tendered they must be set apart, so that the party to whom they are tendered may know exactly what is tendered.</p>

Indictment, for a refusal to take an oath, etc. Error to the County Court of Union County; the Hon. Monroe C. Crawford, Judge, presiding, Heard in this court at the February term, 1900.

<p>1. Words and Phrases—Construction of the Term “ Four Months ” as Used in Section 60 (b • of the Bankrupt Act.—Section 60 (b) of the bankrupt act provides that if the bankrupt shall have given a preference within four months before, the filing of his petition such preference shall be voidable; and in order to ascertain whether such preference is within the prohibited time we must start from the date on which the petition was filed and count backward toward date of the preference, excluding the day on which the petition was filed.</p>

<p>Assumpsit, for services. Appeal from the County Court of Effing-ham County; the Hon. D. L. Wright, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>1. Insanity—As a Defense to a Promissory Note—Measure of Proof. —Where a plea is filed to a declaration upon a promissory note against a surety, that the defendant was at the time of signing the note insane, and incapable of transacting business, it is sufficient to show such mental incapacity by a preponderance of the evidence.</p> <p>2. Surety—When Insanity Releases.—Where the time of payment on several promissory notes is extended by taking a new note signed by the surety on the original notes, if at the time of such extension the surety was incapable mentally of assenting to such extension, he was released, and no recovery can be had upon his prior contract of surety-ship. ____</p>

<p>1. Evidence—Now to be Considered.—The meaning as well- as value of the evidence of a witness is not to be ascertained by a few words or sentences taken from it, but from a full and fair consideration of the entire body of it.</p> <p>2. Instructions—Need Not be Repeated.—An instruction which is covered by other instructions in the case is properly refused.</p>

<p>1. Appellate Court Practice—Abstracts.—The Appellate Court will not look into the record for instructions which do not appear in the abstract.</p> <p>2. Same—Duty of Parties to Make Abstracts.—It is the duty of parties bringing cases to the Appellate Court for review, to prepare and file complete abstracts of the record such as the court can rely upon.</p>

<p>Trespass on the Case, for personal injuries. Error to the City Court of Alton; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>Bill for a Mechanic’s Lien.—Appeal from the Circuit Court of Marion County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>Foreclosure.—Appeal from the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>Bill for Accounting.—Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Shaefer, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>1. Verdicts—When Warranted by the Evidence.—Where the evidence is sufficient to warrant the finding, the court will not err in refusing an instruction to find for the defendant.</p>

<p>1. Chancery Practice—The Proofs Must Sustain the Bill,— In all proceedings in chancery the evidence must sustain the bill.</p>

<p>1. Life Insurance—Payment of Delinquent Premiums After the Death of the Insured.—Efforts to reinstate, a policy of life insurance after it had lapsed and after the death of the insured, is, under the circumstances of this case, held to be an attempt to defraud the company.</p>

<p>1. Railroads — Authority of Freight Train Conductors to Eject Passengers.—The conductor of a freight train is intrusted with the control of the entire train, and has implied authority to eject trespassers from it. If he exercises such authority improperly his employer will be liable.</p> <p>2. Same—Employes Not Authorized, to Commit Wanton or Malicious Acts.—A railroad conductor is not authorized to commit wanton or malicious acts upon the person or property of others.</p> <p>8. Same—Authority of the Conductor.—The conductor of a railroad train represents the company in the control of the engine and cars, the regulation and conduct of passengers as well as of the subordinate servants. He may eject a passenger for the non-payment of fare, but if he acts wrongfully or uses excessive and unjustifiable force in doing so, the company is liable.</p> <p>4. Practice—When the Court is Not Authorized to Take a Case from the Jury.—Where there is evidence tending to prove all the facts necessary to a recovery the court is not authorized to take the case from the jury.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Perry County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the February term, 1900.

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Benjamin D, Burroughs, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>Trial of the Rights of Property.—Appeal from the County Court of Hamilton County; the Hon. Charles B. Thomas, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>1. Verdicts—When Not to be Directed.—When the evidence tends to support the plaintiff’s case it is error to direct a verdict for the defendant.</p>

<p>1. Pleading!— When Conclusions of the Pleader are Surplusage.— When the instrument upon which the action is brought is set out in haec verba in the declaration, and is not ambiguous, it is for the court to determine its legal effect, and any averment of the pleader as to its legal effect is surplusage and does not affect the preceding material allegations of the pleading.</p> <p>2. Contracts—Binding upon One Side Only.—Parties may make contracts binding only on one side at the time when entered into, but which may thereafter become binding on both sides at the option of one of the parties.</p> <p>3. Same—Construction Where the Language has a Settled Legal Meaning.—Where there is no ambiguity in the terms used, or where the language of the instrument has a settled legal meaning, the instrument itself is the only criterion of the intention of the parties, and its construction is not open to oral evidence.</p>

<p>Bill to Account for Partnership Matters.—Appeal from the Circuit Court of Jasper County; the Hon. Tbuman E. Ames, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>1. Saxes— Where an Executed Sale Does Not Exist.—-Where a trade contemplates the turning out of property and the delivery of a deed so as to vest the title in the vendee, and such acts are to be concurrent, unless such acts actually occur there is no executed sale.</p>

<p>Trespass on the Case, for personal injuries. Error to the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>Debt, on an official bond. Error to the Circuit Court of Johnson County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>1. Privity—Does Not Exist Between a Taxpayer and Treasurer.— There is no such privity existing between a taxpayer and the treasurer of the commissioners of highways as will enable the former to maintain a suit to recover money paid by him as taxes to the proper collector and by him paid to such treasurer.</p>

Trespass oil the Case, for personal injuries. Error to the Circuit Court of St. Clair Comity; the Hon. Alonzo S. Wildebman, Judge, presiding. Heard in this court at the February term, 1900.

<p>1. Commercial Paper—Indorsements “ Without Recourse.”—The legal title of commercial paper, can be as effectually transferred by an indorsement “ without recourse ” as by an unqualified indorsement.</p> <p>3. Forfeitures—Defined.—A forfeiture means the loss of something as a penalty for doing or omitting to do some certain required act.</p> <p>3. Same— Odious to Courts.—Forfeitures are odious to courts and are never enforced except when they are definitely contracted for, and nothing is done by the party for whose benefit they are made, to mislead the other to his injury.</p>

<p>1. Instructions—To be Read as One Series.— The entire instructions upon the measure of damages must be taken and read together as one charge to the jury on that question.</p> <p>2. Fellow-Servants—A Question of Fact.— The question as to whether certain employes of a railroad company are fellow-servants, is one of fact to be determined by the jury under proper instructions from the court as to what constitutes fellow-servants.</p>

<p>Bill to Set Aside a Fraudulent Conveyance.—Error to the Circuit Court of Massac County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the February term, 1900.</p>

Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Benjamin D. Burroughs, Judge, presiding. Heard in this court at the February term, 1900.

Debt, on a dram-shop keeper’s bond. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1900.

Trespass oh the Case.—Death from negligence, etc. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1900.

<p>1. Corporations—Cousolidation a Jifa Her of Legislative Control.— The method, terms and manner of the consolidation of corporations is a matter of legislative control so far as the legislature elects to exercise its power, and where it fails to expressly direct, it becomes the duty of the courts to construe its legislation in order that the legislative purpose and intent may be carried out.</p> <p>2. Same—The General Rule in this Country.—The general rule in this country is, that the consolidation of two corporations is a dissolution of both of them, and a new company created, succeeding to the rights and assuming all the liabilities of the old corporations.</p> <p>3. Same — Effect of a Consolidation.— When two corporations are consolidated under the statute and a new company is created, the new company takes the property and assumes the liabilities of the companies consolidated in the exact condition in which such property and liabilities existed at the time of such consolidation (except as' to suits then pending), and such liability can not thereafter be extended by acts of a member of either of the old companies.</p> <p>4. 1 nsurance Ciimpanies—Effect of Consolidation upon Outstanding Policies.—Where two insurance companies consolidate, the policies of the companies consolidating (on which suits are not then pending) become in effect the policies of the new company, and are in law to be treated as such. Suits for losses occurring after the consolidation must be brought against the new company.</p> <p>5. Pleading—In Suits upon Policies Issued by a Company Before Consolidating.—A suit upon a policy issued by a company before consolidating, should, if commenced after the consolidation, be brought against the new company, and the plaintiff should allege in his declaration the consolidation of the two companies' so as to show its privity with the company whose policy it originally was, thus showing the policy to be in legal effect a policy of the new company.</p>

<p>Claim in Probate for Money Paid as Taxes.—Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>Mandamus and Injunction.—Appeal from the Circuit Court" of Perry County; the Hon. Benjamin D. Burroughs, Judge, presiding. Heard in this court at the February term, 1900.</p>