Volume 91 — Illinois Appellate Court Reports

<p>1. Contracts—Requisites for a Recovery for a Breach of—A party to a contract can not recover damages for the non-performance of the same by the other party when he is himself in default in the performanee of the conditions imposed upon by such contract.</p>

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

<p>1. Chattel Mortgages—When Valid Without Acknowledging or Recording.—Where a mortgagee actually obtains possession of the mortgaged property before any other rights attach, he will hold it the same as if his mortgage were properly acknowledged and recorded, or as if possession had passed to him at the time it was executed.</p>

<p>1. Statutes—Construction of Section 5 of Chapter S3 in Relation to the Prosecution of Suits Without Costs.— Section 5 of chapter 33, in relation to the prosecution of suits without costs, is broad enough in its terms to include all resident plaintiffs, whether adults or infants, who are unable to prosecute their suits and pay costs, and under its provisions courts have power, upon proper showing made, to allow a minor to prosecute a suit by his next friend, without requiring such next friend to give bond for costs.</p> <p>2. Fellow-Servants—The Rule in Relation to.—Whether two servants of the same master in a given case are fellow-servants is a mixed question of law and fact, and in trial courts the question is to be considered in both aspects: for the court, by instructions, to define the relation of fellow-servants, and for the jury to determine whether the relation as thus defined in fact existed.</p>

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

Action for Damages, from cinders and smoke, etc. Appeal from the Circuit Court of Jackson County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in- this court at the February term, 1900.

<p>1. Contract—Substitution of One for Another.—A later contract may be substituted for and made to completely displace a former one, and there need be no waiver of the old contract to constitute a discharge of it by a substituted agreement.</p> <p>2. Same—Where Parol Evidence is Not Admissible to Explain.— Where a clause in a contract is too clear to need explanation, parol evidence is not admissible to explain it.</p> <p>3. Practice—Effect of Motions for New Trials.—A motion for a new-trial which alleges as grounds that the verdict is contrary to the law and the evidence, is sufficient to raise the question as to the effect of a later contract on a former one, between the same parties.</p> <p>4. Construction of Contracts—By Acts of the Parties.—While the interpretation by the parties to a contract as evidenced by their acts, will, in cases of doubt, be resorted to for the purpose of arriving at their true intention, this rule is never allowed to govern when the effect will be to overthrow the plain terms of the contract.</p>

<p>1. Malicious Prosecution—Advice of Counsel as a Defense.— Where a person about to institute a criminal prosecution applies to officers whose duty it is to prosecute persons for violations of the law, and in good faith states fully and clearly all the facts, and acts upon the advice of such officers, he is not guilty of malicious prosecution.</p> <p>2. Instructions—Requiring More than a Preponderance of the Evidence.—An instruction in an action for malicious prosecution upon the question of the advice of counsel, which requires the jury to be satisfied from the evidence that the advice of counsel was sought in good faith, and that a full, fair and true statement of all the facts was made to the counsel, requires a higher degree than a preponderance of the evidence and is erroneous.</p>

<p>1. Insurance—Effect of Incomplete Answers in an Application.— When an application for a policy of insurance contains an incomplete answer to a material question, and the company does not call for a fuller answer, but issues its policy, it will be deemed to have waived any imperfections contained in the answer.</p> <p>2. Same— What is an Insurable Interest.—Whenever the insured party will suffer a loss by the burning of the property, he may insure it without particularly describing his interest.</p> <p>3. Forfeitures—To be Strictly Construed.—A contract providing for a forfeiture is to be strictly construed against the party who will be benefited by the forfeiture, especially when such party has had it in his power to insist upon the very information which is claimed to have caused the forfeiture and did not see fit to do so.</p> <p>4. Arbitration—Agreement to Arbitrate, No Bar.—An agreement to arbitrate does not constitute a bar to an action unless an award is a condition precedent to the right of action.</p>

<p>Forcible Entry and Detainer.—Appeal from the Circuit Court of Wayne County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>Forcible Entry and Detainer.—Appeal from the Circuit Court of Randolph County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>Action for Killing Domestic Animals.—Appeal from the Circuit Court of Lawrence County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the February term, 1900.</p>

<p>1. Fraud—Burden of Proof.—The burden of proving allegations of fraud is upon the party making such allegations.</p>

<p>1. Sepaeate Maintenance—An Insufficient Cause.—The fact that a husband becomes disagreeable by reason of sickness which he can not control, furnishes his wife no sufficient cause for leaving him, and saying that she is living separate and apart from him without her fault.</p>

<p>1. Trials by the Court—Ora Conflicting Evidence.—Where the trial is by the court without a jury, and the evidence is conflicting, it is for the judge hearing the case to reconcile the conflicting testimony and determine where the truth lies.</p>

<p>Action on the Case, for negligence. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>1. Mechanics’ Liens—Requisites of the Contract.-—Where a building contract is in writing, and contains no provision as to the time in which the work is to be performed, no lien can be enforced.</p> <p>2. Chancery Practice—When the Objection that the Bill Does Not Support the Decree May be Raised.—The objection that the bill does not support the decree may be taken advantage of at any time.</p>

Assumpsit, to recover the purchase price of land, etc. Appeal from the Circuit Court of Shelby County; the Hon. Tjruman E. Ames, Judge, presiding. Heard in this court at the May term, 1900.

<p>Debt, on an injunction bond. Appeal from the City Court of Mattoon; the Hon. James F. Hughes, Judge, presiding. Heard in this court at the May term, 1900.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the May term, 1900.

<p>1. Appellate Court Practice—Consideration of Matters Outside of the Record.—The Appellate Court is precluded from considering a complaint that the court and counsel made remarks in the presence of the jury calculated to prejudice the rights of the appellant, where no language of such import is preserved in the record.</p> <p>2. Same—Matters' Relied upon to Reverse Must be Shoivn in the Record.—The Appellate Court can not consider the statements and conclusions of counsel upon a point in the absence of such matter in the record.</p> <p>3. Same—Not the Province of the Appellate Court to Reconcile Conflicting Evidence.—It is not the province of the Appellate Court to reconcile conflicting evidence or to say that a verdict of a jury should have been the other way.</p> <p>4. Verdicts—When Conclusive.—Where the evidence is conflicting upon the material issues of the case, the decision of the jury is in general conclusive.</p> <p>5. Life Insurance—Statements in the Application.—A person applying for a policy of life insurance is required to disclose in his application only such facts as are responsive to the questions asked him.</p>

<p>Certiorari.—Appeal from the Circuit Court of Shelby County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1900.</p>

Robert B. Shirley, Judge, presiding. Heard in that court on appeal from the board of supervisors. Heard in this court at the May term, 1900.

<p>1. Administration of Estates—Allowance of Claims—Judgments— Revival—Limitations.'—The allowance of a claim against the estate of a deceased person is a judgment of a court of record, and may be revived by scire faaias, or an action of debt maybe brought thereon within twenty years next after the date of such judgment, and not thereafter.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Hancock County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1900.

<p>1. Foreclosure—What Makes a Prima Facie Case for the Complainant.— The complainant in a foreclosure proceeding, by introducing the notes and mortgage makes a prima facie case, and the burden is upon the defendant to prove the defenses set forth in his answer.</p> <p>2. Chancery Practice—Effect of Calling for the Production of 'Documentary Evidence.—Ihe court knows of no principle which will enable a party to call upon his adversary for the production of documentary evidence, and when so produced claim the benefit of such portion thereof as may be to his advantage, and at the same time reject that part which tends against him, and deprive his opponent also of the right to its use.</p> <p>3. Administration of Estates—Administrator's Duty as to Real Estate of His Intestate.—An administrator has no duties to perform and no liabilities accrue in respect to the real estate of his decedent, excepting merely to sell the same to pay debts in case of a deficiency of personal assets.</p>

Assumpsit, for money injudiciously loaned. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1900.

<p>1. Consideration—Exchange of Notes for Bonds.—A bank held a note against a company and the company wishing to release one of the sureties upon it, proposed to give the bank its bonds in exchange for it, which proposal was accepted and the exchange made. The company afterward paid the interest on the bonds for one year without objection, but making default the next year, suit was brought to recover the interest for that year. The treasurer of the company supposed when the exchange was made that the company was getting a note indorsed by him, while the note actually received was one of the company, which was not indorsed by him, but as he received it without objection, never offering to return it or to rescind the exchange until after the suit was brought, it was held that the facts did not show a want of consideration for the interest on the bonds.</p> <p>2. Propositions of Law— When Not Essential.—Where a party excepts to a judgment of the trial court and afterward presents a motion in writing for a new trial, on the ground that the judgment is against the evidence, and preserves an exception to the denial of the motion, he is entitled to have the Appellate Court examine and review the questions of fact involved and to determine whether there is any occasion to set aside the finding of the trial court in that respect. It is not essential to such review that propositions of law should have been submitted.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>Partition.—Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1900.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1900.

Assumpsit, upon a breach of a contract of warranty. Appeal from the City Court of the City of Mattoon; the Hon. James F. Hughes, Judge, presiding. Heal'd in this court at the May term, 1900.

<p>Assumpsit, for services. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>1. Record—Interrogatories and Answers of Garnishees a Part of, Without a Bill of Exceptions.—Interrogatories propounded to garnishees and their answers thereto are a part of the record without being made so by a bill of exceptions.</p> <p>2. Practice—In the Absence of Denials to Answers of Garnishees.— In the absence of denials to answers of persons summoned as garnishees, the matters stated in such answers must be taken as true.</p>

Action under section eight of the dram-shop act. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1900.

<p>Mechanics’ Liens.—Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>1. Divorce—Cruelty Within the Statute.—Cruelty, for which divorce under our statute can be granted, must be such as is inflicted by, or is accompanied with, some act of physical force or violence.</p> <p>2. Same—What is Not Sufficient.—A failure to provide a suitable dwelling and sufficient clptbing and food by the husband for his wife and children for three years, does not constitute such extreme and repeated cruelty as entitles the wife to a divorce under our statute.</p>

<p>Bill for an Accounting.—Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>1. Verdicts—When Not tote Disturbed.—When the evidence is conflicting and that of either side standing alone supports the verdict, where no intervening errors of instructions or rulings of the court upon the admission of evidence have occurred, an Appellate Court will not disturb the finding upon the ground that it is not supported by the evidence.</p>

<p>Trespass on the Case.—Death from negligence. Appeal from the Circuit Court of McLean County; the Hon. John M. Moffett, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>1. Good Will—Of Trade—Contract for, Construed.—A person who sells the good will of a trade and agrees not to start in such business again in the county, directly or indirectly, as long as his vendee continues in the business at such.place, is not prohibited by his contract from accepting employment as assistant or clerk to others in the same business at the same place.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Damages—Measure of—Destruction of Growing Crops.—Where a landlord enters upon the demised premises and destroys a growing crop of his tenant, the tenant will be entitled to recover as damages therefor the value of his interest at the time, not its then value for immediate use in the condition it then was, but with a view to his right to use the land until the crop was matured and then harvest it, and this may be properly ascertained by showing the probable amount of grain the crop, as it appeared when destroyed, would be likely to yield, the value of the same at the market season, and deducting therefrom the necessary cost of harvesting and threshing the same.</p>

<p>1. Dower—As Against the Administrator and the Unsecured Creditors.—A widow is not entitled, as against the administrator and the unsecured creditors, to be endowed out of the whole of the proceeds of the sale of the real estate of her deceased husband to pay debts.</p> <p>2. Same—What the Widow is Entitled to After the Payment of Debts.—A widow is entitled to be endowed of one-third of the proceeds of a sale of real estate to pay the debts remaining after payment of mortgage liens and after deducting $1,000 for the homestead interest, if such exists.</p> <p>3. Same—Nature of the Estate,—The right of dower in a married woman is a mere intangible, inchoate contingent expectancy, and, until assigned, is not an estate in land, but a right resting in action only. During the life of the husband it is a mere expectancy or possibility with which the legislature may deal as it deems proper. Not being a natural right it can not be alienated; but until assigned, it may be released to the owner of the fee, and the widow can make no other disposition of it until then.</p> <p>4. Same—In Mortgages Executed Before Marriage.—Where the husband executes a mortgage before his marriage his widow is not entitled to be endowed in the equity of redemption at common law, as against the mortgagee_ of those claiming under him, but if the heir redeems she may obtain dower by contributing ratably toward the redemption. Her right of dower will be restored only upon a redemption by her husband or his legal representatives.</p> <p>5. Real Estate—Sale by an Administrator Equivalent to a Sale by the Heir.—A sale by an administrator of the real estate of a decedent for the purpose of paying debts is equivalent to a sale by the heir, and an appropriation of the purchase money to the payment of debts of the estate, the administrator being, under the statute, in substance, the attorney in fact of the heir, to make such sale.</p> <p>6. Administrators—Sales When Lands are Mortgaged.— The powers of an administrator where the land is mortgaged is merely to sell the equity of redemption, as that is all that vests in the heir. The purchaser takes only the right of the heir in the fee, subject to the mortgage.</p> <p>7. Administrator’s Sales—Status of a Redeeming Purchaser.—If a purchaser of mortgaged premises at an administrator’s sale redeems from the mortgage, he holds as the heir would have held, had he paid off the mortgage.</p> <p>8. Contribution—By Widow in Paying Mortgage Debts.—The purchaser at an administrator’s sale of mortgaged premises takes the interest of the' decedent mortgagor in the lands, and occupies the same position as the heir and the widow joining with her husband in the mortgage. If the widow claims dower she must contribute ratably toward redeeming from the mortgage.</p> <p>9. Vested Rights—Dower Rights Are Not.—The right of dower in a married woman before it is consummated by the death of her husband is a mere inchoate expectancy, which does not rise to the dignity of a vested right, and may be changed by the legislature at any time before the death of the husband.</p> <p>10. Descent—Of Real Estate.—At the death of'an intestate person the title of his lands descends to his children, subject, first, to the payment of such of his debts as are secured by mortgage, if the personal estate is not sufficient to pay them: second, to the homestead estate and dower right of the widow: and, third, to the payment of such of his debts as the personal estate is insufficient to pay.</p> <p>11. Widows—May Compel an Allotment of Dower.—At the death of her husband the widow may compel an allotment of her dower in his lands, subject, however, to the payments, first, of so much of the mortgage indebtedness as the personal estate is insufficient to pay, and, second, to her rights in homestead estate. .</p> <p>12. Administration of Estate—Duty of Administrator to Sell Real Estate, When.-—When it is ascertained that the personal estate of a deceased person is insufficient to pay the just claims against his estate and there are lands to which he had title, it is the duty of the administrator, under section 90 of chapter 3, R. S., entitled “ Administration of Estates,” to proceed to sell the same for the payment of such debts.</p> <p>13. Same—Power of the Probate Courts—Homestead and Dower.— The Probate Court has the power, when an application is made by an administrator, to sell real estate for the payment of debts; to ascertain the amount due on mortgage liens; to direct the sale of such lands, discharged of such liens; to provide for their payment and satisfaction out of the proceeds arising from such sale; to settle and adjust all equities between the parties as well as all questions of priority in the lands or in the proceeds thereof; and, with the assent in writing of the widow, to direct that the lands be sold, free and discharged from homestead estate and right of dower; and after such sale, to ascertain the value of such estate and right, and order the same paid out of the proceeds.</p> <p>14. Si/reties—Married Women Joining in Mortgages Are Not.—A married woman who joins with her husband in a mortgage to secure his debt does not by doing so become the surety of her husband.</p> <p>15. Homestead Rights—Of Married Women Joining in Mortgages.— When a married woman joins with her husband in the execution of a mortgage upon his lands, she waives her homestead estate and right of dower in the lands.</p>

<p>1. Pleading—In Debt in Actions on Replevin Bonds.—Where the declaration in an action of debt upon a replevin bond alleges that the merits were fully determined and disposed of in the replevin suit, a plea which fails to traverse such allegation is bad.</p> <p>2. Judgments—Explanation of Interlineations and Additions—Evidence.—Where a judgment with interlineations and additions appearing on its face is offered in evidence, it should not be admitted until such interlineations and additions are explained.</p> <p>3. Clerks of Courts of Record—Duty to Preserve Papers, etc.—It is the duty of a clerk of a court of record to attend the sessions of his court; preserve all the flies and papers thereof; make and preserve complete records of all its proceedings and determinations; and to enter of record all the judgments, decrees and orders of the court before its final adjournment for the term, or as soon thereafter as practicable; and it is also his duty upon discovering that he has not, in his first efforts to do so, entered up such a judgment as the court actually rendered, to correct the same before the next term of court by making the proper entry.</p> <p>4. Presumptions—That Clerks of Courts do Their Duty.—The court will presume that the clerk attends the terms of his court and knows what the court determines in the suits pending before it; and from that knowledge and the minutes made by the presiding judge upon his announcement of his decisions and judgments, properly enters up the judgments so rendered.</p>

<p>Appeal from the Circuit Court of Ford County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>Debt, on a township treasurer’s bond. Appeal from the Circuit Court of Sangamon County; the Hon. Oren P. Thompson, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>Assumpsit, for commissions. Error to the Circuit Court of Douglas County; the Hon. William Gr. Cochran, Judge, presiding. Heard in this court at the May term, 1900.</p>

Trespass on the Case, by the widow of a person killed in a coal mine. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookw alter, Judge, presiding. Heard in this court at the'May term, 1900.

<p>Replevin.—Appeal from the Circuit Court of Douglas County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>1. Attorneys’ Fees—Duty of Courts in Alloioing.—The judge by whom allowances for attorneys’ fees are made should, in arriving at the amount to be allowed, exercise his own judgment and not be wholly governed by the opinions of attorneys as to the value of such services, for he has the requisite knowledge to form a reasonably correct idea as to what is a fair and reasonable compensation and he should exercise that judgment; and while he should consider the opinions of witnesses and the evidence of the sum usually charged and paid for such services, he should not be wholly controlled by the opinion of attorneys as to their value.</p>

Trespass on the Case, for personal injuries. Appeal from ¡the Circuit Court of Coles County; the Hon. Frank K. Dunne, Judge, presiding. Heard in this court at the May term, 1900.

<p>1. Vendors’ Liens—Not Assignable—Waiver.—A vendor’s lien is incapable of assignment and the taking of other security operates as a waiver, and, in other ways manifesting an intention not to rely upon it as a right personal to the vendor, the lien may be waived or lost.</p> <p>2. Same—Burden of Proof.—Generally speaking the lien exists, and the burden of proof is upon the purchaser to establish that in his particular case it has been intentionally displaced or waived by the consent of the parties.</p> <p>3. Same—What Operates to Destroy It.—Any act or declaration of the vendor which shows that he does not rely upon or has abandoned the lien, operates to destroy it and prevents its attaching to the land.</p> <p>4. Same—When It Attaches.—Where from the circumstances of the particular case it remains in doubt whether the vendor ¡intentionally has waived his lien, the lien attaches. i</p>

<p>Trespass to Personal Property.—Appeal from the County Court of Moultrie County; the Hon. John D. Purvis, Judge, presiding. Heard in this court at the May term, 1900.</p>

In Chancery.—Error to the Circuit Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1900. Notice, but no petition for rehearing filed.

<p>Trespass on. the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. George W. Brown, Judge, presiding, Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Insurance—Contracts of, to be Made in Good Faith.—The contract of insurance is one in which the parties must act ¡in the utmost good faith. On the part of the insured there must be n<|) concealment of important facts or false representations, and the insurer must of necessity trust to his representations and proceed upon tihe confidence that he has been given all the data necessary to enable hi!m properly to estimate the risk. j</p>

<p>Injunction.—Appeal from the Circuit Court of Cook ¡County; the Hon. Richard S. Tdthill, Judge, presiding. Heard in tjhis court at the March term, 1900.</p>

Trespass on tile Case, for personal injuries. Appeal fronj the Circuit Court of Cook County; the Hon. Charles G. Neely, Judgfe, presiding. Heard in this court at the March term, 1900.

<p>Assumpsit, for money deposited. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1900.</p>

<p>1. Forfeitures—Under Contracts for the Sale of Real Estate.—A party to an agreement for the sale of real estate is not in a position to declare a forfeiture while he is unable to make a title to the real estate in question.</p> <p>2. Chancery Practice—Ore Rejection of Evidence Offered Before the Master.—Where the master refuses to admit evidence offered, the party offering the same should take the question of the admissibility of such evidence before the chancellor and have his ruling thereon, when, if the contention is sustained the master could receive the evidence and pass upon it in making his report.</p>

<p>1. Appellate Court Practice—Presumptions in the Absence of a Certificate of Evidence.—The Appellate Court, in the absence of a certificate of evidence by the clerk of the trial court showing a complete record in a cause, will presume that the complete record would show either evidence or a finding sufficient to justify the decree.</p> <p>2. Chancery Practice—Filing Certificates of Evidence Nune Pro Tune.—Where a complainant prepares and presents to the chancellor a certificate of evidence at the term of court at which a decree is entered, and the chancellor makes a note upon it that it was so presented, if the certificate is not filed until a subsequent term, the chancellor may properly enter an order that the same be filed nunc pro tune, as of the day it was presented to him.</p> <p>3. Same—Filing Certificates of Evidence Nune Pro Tune.—The fact that a certificate of evidence is filed after the close of the term at which a decree is entered is not inconsistent with an order directing that it be filed nune pro tunc.</p> <p>4. Practice—Filing Papers Nune Pro Tune.—An order requiring a clerk to file a paper nune pro tune does not require him to note in addition to the file mark that it was ordered filed nunc pro tune, as of a former date.</p> <p>5. Solicitors’ Fees—Allowance Must be Made to the Wife—Divorce. _It is error to enter a decree in a divorce suit for the payment of solicitors’ fees to the complainant’s counsel. Such allowance can only be made to the wife.</p>

<p>Trespass on the Case.—Death from negligent acts, Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1900.</p>

<p>1. Practice—Setting Aside Judgments at Subsequent Terms—Void Judgments.—The rule that the court is without jurisdiction to set aside a final judgment rendered at a prior term, does not apply to void orders or judgments. ■</p>

<p>Attachment..—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1000.</p>

Trespass 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 March term, 1900.

<p>1. Landlord and Tenant—Tenants are Not Permitted to Deny their Landlord’s Title.—-In. an action arising out of the relation of landlord and tenant, the tenant will not be permitted to deny the title of the landlord under whose tenancy he holds.</p> <p>2. Lease—Under Seal, Not to be Modified by Parol Agreements.— A written lease, which is under seal, can not be modified by a parol agreement as to the payment of rent, leaving it unaltered in all other respects,</p> <p>3. Verdicts—Technical Omission of the Letter “s.”—The technical omission of the letter “ s,” indicating' thereby the singular instead of the plural number, can not vitiate the validity of the verdict under the issues submitted in this case.</p>

<p>1. Cities— When Bound by the Aetsof the Chief of Police.—Theacts of the chief of police of the city of Chicago, when based upon the proceedings of the common council giving color and authority to such acts, are binding upon the city.</p> <p>2. Civil Service—The City of Chicago Can Not Violate the Civil Service Act.—The city of .Chicago speaks and acts through its common council in matters relating to municipal affairs and can not be allowed to violate the act of the legislature in relation to civil service or the lawful rules of the civil service commission made in pursuance of the legislative authority.</p> <p>3. Municipal Officers.—Legislative Power to Provide Mode of Appointment.—In the absence of a constitutional restriction, the power of the legislature is ample to provide the mode of appointment to be adopted in the selection of municipal officers.</p> <p>4. Same—Chief Cleric of the Detective Bureau.—Under the acts to regulate the civil service of cities (Laws 1895, 84), and the rules of the commissioners, the position of chief clerk of detective bureau is that of a municipal officer within the meaning of the law, and after his appointment under the rules of the commission, he can not be removed except for cause upon written charges, and after an opportunity to be heard in his defense.</p> <p>5. Same—Salary of,When Unlawfully Discharged.—Where a municipal officer of the city of Chicago holding his position under the civil service act is unlawfully discharged and prevented from performing the duties of his office and the appropriation for his salary has not been lawfully expended, he is entitled to receive his salary for the period he is thus prevented from performing the duties of such office.</p> <p>6. Same—Right to Salary Follows the Legal Title.—The legal right to an office carries with it the right to the salary and emoluments of such office.</p>

<p>1. Bastards—Inheritance, etc.—Statutory Construction.—It wasthe intention of the legislature, by section' 2 of the act of 1872 (Laws 1872, 353), which is in substance a mere consolidation of section b3 of chapter 109 of the revised statutes of 1845 and the act of 1853, to remove the common law disability of illegitimate children.</p> <p>2. Same—Mother's Right to Maintain an Action Under the Statute Requiring Compensation for Causing Death by Wrongful Act.— Under the statute requiring compensation for causing death by wrongful act, neglect or default, an action can be maintained for the benefit of the mother of an illegitimate child, as the next of kin of such child.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County: the Hon. Edward F. Donne, Judge, presiding. Heard in this court at the March term, 1900.

<p>Bill for the Dissolution of a Partnership, etc.—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. Fraud—Ignorance of Facts, When Not Sufficient to Justify a Refusal to Perform a Contract.—The mere fact that the vendee under a contract for the sale of eggs to be shipped on a day named, made a settlement with the vendor of differences of values while he was ignorant of the fact that no eggs were shipped on the day named, is not such a fraud as to justify a refusal on his part to perform the contract of settlement.</p>

Assumpsit, on a contract for the sale of lands. 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>1. Street Cars—No Right of Way to the Exclusion of Others.— Neither a street ear nor the public have a right to a street intersection to the exclusion of the other. Their rights are reciprocal and each must respect those of the other.</p> <p>2. Same—Rights of Persons Using the Streets.—A driver of a wagon upon a public street approaching a street car track intersection, who sees an electric car appracliing him about 280 feet away, has a right to rely upon the duty resting upon the motorman to so manage and control his car as to avoid a collision and not to subject him to unnecessary danger.</p> <p>3. Limitations—Amended Counts.—Amended counts which do not present a new cause of action, are not amenable to a plea of the statute of limitations.</p>

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

<p>1. Life Insurance—Inaccurate Answers in the Application, When Not Available as a Defense.—A finding to the effect that an answer to a question in an application for a policy of life insurance was improperly written by the medical examiner and signed by the applicant under the impression that it was accurate, relieves him from the effect of a false statement and constitutes no defense to an action on the policy. •</p> <p>2. _ Same—Death of the Insured in Consequence of His Own Criminal Act,—The fact that an insured person was shot by a police officer a few minutes after he had committed a robbery and while he was attempting to escape with the money taken, is a complete defense to an action on a policy of life insurance, providing that there could be no recovery in case the insured died in consequence of his own criminal action.</p>

<p>1. Practice—What Will Not Justify the Admission of Secondary Evidence.—The practice of allowing counsel to enter upon the trial of a case knowing that an important witness is ill and may not be able to be present, and in the midst of the trial, for the first time, to present the fact of the absence of such witness and then testify as to what such witness said upon a former trial, reading from his own abstract of such testimony, is one which this court can not approve or sustain.</p>

Bill, to subject the real estate of a deceased person to the payment of debts. 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>1. Evidence—When Wife is Competent to Testify in Suits Where Her Husband is a Party.—A. wife is competent to testify as to transactions wherein she is alleged by the opposite party to have acted as the agent of her husband.</p>

<p>1. Instructions—Must Be in Accord with the Declaration.—An instruction which has no support in any allegation of the declaration or presents a different case from that declared on, is erroneous.</p> <p>2. Limitations—What is to Be Regarded as the Commencement of a Suit.—-The issuing out of a writ of summons, irrespective of whether it is or is not delivered to the sheriff for service, constitutes the commencement of a suit in this State.</p> <p>3. Partnership— Existence of, a Question of Law.—It is a question of law for the court whether a partnership exists under a given state of facts.</p> <p>4. Jury—Limited to the Determination of Facts.—The jury are to be limited to the determination of facts; questions of law are not tó be submitted to them for their consideration.</p>

<p>1. Deeds—When They Take Effect, etc.—Recording.—An instrument takes effect from the time of filing it for record, as to creditors and subsequent purchasers without notice.</p> <p>2. Notice—Indorsements on Recorded Instruments—Priority.—The indorsements upon different trust deeds, made by the recording officer, of the numbers and time of filing the same for record, is to be regarded as indicating the priority of the lien of each.</p>

<p>1. Contempt—Where the Disobedience of a Decree is Not'Willful.— Where the disobedience of a decree is not willful and does not clearly appear to have arisen from an intent to set at naught or bid defiance thereto, the power to punish for contempt can not be properly exercised.</p> <p>2. Same—When the Power to Commit Should Not be Resorted To.— The power to commit a party for a failure to comply with a decree when there is no other ground for regarding him in contempt than an unintentional disobedience of the decree, should not be resorted to.</p> <p>3. Same—When an Officer of a Corporation is Not Liable.—An officer of a corp oration is not liable for contempt, solely because of his refusal to act without authority from the corporate body, upon an order of court directed against the corporation alone.</p>

<p>Assumpsit.—For money paid out, etc. 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. Chancery Practice—Motions to Dismiss a Cross-bill.—A motion in the nature of a demurrer to strike a cross-bill from the files on the ground that it does not show any equitable grounds of affirmative relief should be denied, and the cross-complainant given an opportunity to amend, unless it appears that no amendment could be made which would entitle him to relief.</p> <p>2. Same—Hearing of Original and Cross-bills Simultaneovsly.— While it is usually a saving of time of the court and counsel to hear the original and cross-bill at the same time, there is no law requiring it to be done. A defendant can not, by filing a cross-bill, delay the complainant in securing a hearing upon his original bill.</p>

<p>1. Promissory Notes—Explanation of Indorsements by Third Parties.—Where a person who is not the payee of a promissory note, places his name upon the back of such note, it may be shown by parol evidence what liability he intended to assume by so doing.</p> <p>2. Presumptions—Where a Third Party Writes His Name Across the Bade of a Promissory Note.—Where a third party writes his name across the back of a promissory note the presumption from such indorsement is that he assumes the liability of a guarantor.</p> <p>3. Husband and Wife—When Competent as Witnesses for or Against Eaeh Other.—Where a litigation concerns the separate property of the wife, the husband is a competent witness.</p> <p>4. Practice—Death of a Defendant Pending Suit.—Where the court obtains jurisdiction of a party and he dies while the suit is pending, and no notice of his death is brought to the attention of the court, a judgment entered in the suit against him is not void.</p> <p>5. Instructions—Effect of the Omission of the Words “From the, Evidence."'—It is nob error to refuse an instruction which tells the jury if they believe, without telling them that such belief must be from the evidence.</p>

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

<p>(Note.—This case follows the case of Metzger and Baker v. McCann et al., 93 Ill. App. 109.)</p>

Trespass on tlie Case;—Damage to property by the improvements of streets. 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>1. Contracts—For the Sale of Property— Where Partial Payments Can Not he Recovered Bach.—Where parties enter into a contract for the sale of property, conditioned that upon the making of certain payments the vendee should be entitled to a clear bill of sale, with no incumbrance, the fact that there was a chattel mortgage upon the property, not released of record, is not sufficient to justify the vendee in refusing to complete the payments "on his part and authorize him to sue for and recover the money already paid thereon.</p>

<p>Trespass on the Case.—Death from negligent act. 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. Trespassers—On Railroad Grounds—Who Are, a Question of Fact.—The question as to whether a person upon the grounds of a railroad company is or is not a trespasser, is one of fact for the determination of the jury.</p> <p>2. Same—Liability of a Railroad Company Toivard.—Where a person is a trespasser upon the private property and grounds of a railroad company at the time and place where and when he is injured the company is not liable for mere carelessness of its employes.</p> <p>3. Instructions—Where the Evidence is Conflicting.—In a case where the evidence upon the material issues on trial is conflicting the instructions should be accurate.</p> <p>4. Same— Omission of Material Questions in Issue.—An instruction which omits reference to one of the material questions in issue and closes with a direction to the jury as to how their verdict should be if the facts are found as stated, is erroneous.</p>

<p>Assumpsit, for services, etc. 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. Appellate Court Practice—Filing Amendments to the Bill of Exceptions.—In this case a diminution of the record was suggested and a motion made for leave to file an amendment to the bill of exceptions. The amendment was not then ready, but the court took the motion under advisement, and the additional record being subsequently brought in, leave was given to file it, nunc pro tunc.</p>

Assumpsit, for money lent and advanced. 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>1. Trust Deed—Not to be Varied by Conversations of the Parties Leading up to its Execution.—The conditions of a trust deed can not be varied by evidence of conversations of the parties to it during the negotiations leading up to its execution.</p> <p>2. Presumptions—Ms to Written Contracts.—When ^ contract is reduced to writing, the presumption is that the entire actual agreement of the parties is contained in it, and oral testimony as to conversations prior to its executions, is not admissible.</p> <p>3. Set-off—Hi Courts of Equity.—Courts of equity, following the law, will not allow a set-off of a joint debt against a separate debt, or a separate debt against a joint debt, nor a set-off of debts accruing in different rights, except under very special circumstances, and where the proofs are clear and' the equity strong.</p> <p>4. Evidence— Of the Ownership of Notes Secured by a Trust Deed. —The possession of notes secured by a trust deed and the introduction of them in evidence, in a proceeding to foreclose such deed, is prima facie proof of ownership.</p> <p>5. Same—Ms to Existing Liability on Notes.—The introduction in evidence of uncanceled notes by a party claiming under them is prima facie evidence that such notes are existing liabilities.</p>

<p>1. Cities and Villages—Contracting Where the Charter is Silent as to the Mode.—Where the charter of a municipality is silent as to the mode in which a city council shall perform an act, the decision of the council may be evidenced by either a resolution or an ordinance.</p> <p>2. Same—Poiver to Contract Without Advertising for Bids.—Where the law under which a city is organized provides that a contract may be entered into by the proper officer without advertising for bids by a vote of two-thirds of all the aldermen or trustees elected, and it is not necessary that the vote shall be in the form ©f an ordinance, it may be by a yea and nay vote.</p> <p>3. Same—Compensation for Extra Material and Work in Contracts for Publie Improvements.—Where, in carrying out a contract for public improvements, extra work and material of a different character from those specified in the original contract are furnished, the rates named in such contract will not apply and the party furnishing such extra work and material will be entitled to recover for the same according to the value as fixed by the evidence.</p> <p>4. Estoppel—Of a City by an Agreement Between a Contractor and an Officer.—Where an agreement between a contractor and an authorized officer of a municipality for extra work and material rendered necessary by alterations in an original contract, is made in good faith and gives a reasonable compensation, fair alike to both parties, it will estop them from afterward questioning it.</p> <p>5. Ratific \ tton—Of the Acts of Municipal Officers.—Where a contract is entered into by an officer of a city on behalf of the city, and is one which the City is authorized to make, it may be ratified, and such ratification may be inferred from acquiescence after notice.</p> <p>6. Same—Of Contracts Ultra Vires.—Where a public work which a city has the power to do in a proper way is done in an improper way, but is accepted and enjoyed by the municipality, it will be bound to pay for it the same as if it had been done in a manner not ultra vires.</p> <p>7. Contracts—By Municipal Corporations—Conditions for Extra Work.—Where a contract was let to the lowest bidder, in due form, by a municipal corporation containing a prevision authorizing the commissioner of public works to make alterations which might increase or diminish the expense and to determine the value of the work so added or omitted, it was held, that where such alterations did not involve any material departure from the original plans and specifications so as to constitute a new and different undertaking, they did not annul the original contract, and it was the duty of the commissioner to determine the value, and if that was impracticable, to let anew contract by reason of the conditions, and the fact that the extra payments aggregated a large amount, did not necessarily make such determination a new contract for new work, under the statute.</p>

<p>1. Master and Servant—Duty of the Master to See that Appliances Are Reasonably Safe.—It is the duty of the master to see, and exercise reasonable care to see, that tools, appliances and machinery are reasonably safe for the uses to which they are to be put; and employes using them can not be held guilty of contributory negligence if they fail to examine them.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary. Judge,.presiding. Heard in this court at the March term, 1900.

<p>Action to Recover Damages to Real Property, by the construction of a viaduct. Appeal from the Circuit Court of Cook County: the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1900.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the March term, 1900.

<p>1. Life Insurance—Policies Obtained by False Representations.— A policy of life insurance obtained by false representations of facts material to the contract, is void.</p> <p>2. Same—Statements of One Whose Life Is Insured for the Benefit of Another Admissible.—Statements of a person whose life has been insured for the benefit of another, relating to the health of the insured, when they tend to show knowledge of bodily infirmity and are made at a time prior to and not remote from the time of the examination of the insured by the physician of the insurer, are competent as a part of the res gestae, when the question of knowledge of such infirmity is raised by the insurer.</p>

<p>Forcible Detainer,—Appeal from the Circuit Court of Cook County; the Hon. Charles H. Donnelly, Judge, presiding. Heard at the March term, 1900.</p>

<p>Bill for Specific Performance.—Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1900.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the March term, 1900.

<p>1. Landlord and Tenant—Surrender of Demised Premises—Definition.—In the law of real property a surrender is the yielding up of an estate for life or for years to him that hath an immediate estate in reversion or remainder wherein the estate for life or years may drown by mutual agreement.</p> <p>2. Same—What Amounts to a Surrender.—An unconditional agreement between a landlord and a third person, with the assent of the tenant, during the term, to rent the premises to such third person, followed by a change of possession and the payment of rent by the new tenant, will amount to a valid surrender by the tenant of his estate and an acceptance thereof by the landlord.</p> <p>3. Same—Effect of the Receipt of’ Rent from an Assignee of the Lessee.—The receipt by the landlord of rent from an assignee of the lessee does not discharge the lessee from his covenant to pay rent according to the covenants of his lease.</p> <p>4. Lessor and Lessee—Where the Lessee’s Contract Remains in Force Notwithstanding His Assignment.—The contract of the lessee continues in force notwithstanding he may have parted with his interest in the estate, unless the lessor enters into stipulations with the assignee to accept him as his sole tenant and absolve the original lessee; but if there is no such substitution of the assignee in place of the lessee, and a clear intent to make anew contract with the former and to discharge the latter, both will be liable to the lessor for the rent.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the March term, 1900.

<p>Trespass" on the Case, for personal injuries. Error to the Superior Court of Cook County. 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 Hameoy, Judge, presiding. Heard in this court at the March term, 1900.

<p>Mechanic's Lien.—Appeal from the Circuit Court of Cook County. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>Assumpsit, for goods sold. Appeal from the Circuit Court of Cook County. Heard in this court at the March term, 1899.</p>

<p>1. Estoppel—By Representations—Corporations.—Where a concern assumes and holds itself out to be a corporation, it will not be permitted to deny its legal identity as such, as against those with whom it has assumed to be and acted as a corporation.</p>

<p>1. Trespass—Defined.—Any unlawful act committed with violence to the person of another is a trespass, and one who does an unlawful act, or a lawful act in an unlawful manner, to the injury of another, is liable as a trespasser.</p> <p>2. Same—Liability—Motive Immaterial.—Where a person is injured and entitled to recover damages, it is immaterial what may have been the motive of the trespasser. Want of malice is not a bar to the ri^ht of recovery.</p> <p>3. Same—Where the Action Lies.—If an unlawful act causes an immediate injury, whether it be intentional or not, trespass lies.</p> <p>4. Same—Where Punitive Damages May be Given.—The question of whether an act was willful, wanton or malicious relates only to damages and not to the right of recovery. If an act complained of was willful, wanton or malicious the jury is authorized by law to give smart money or punitive damages.</p> <p>5. Same—Where the Actual Damages Only Are to be Given.—Where an act is not willful, wanton or malicious the jury are not authorized to give smart money or punitive damages, but may give actual damages, only.</p> <p>6. Instructions—In Action of Trespass.—An instruction in an action of trespass for assault and battery, which, in effect, says to the jury that although they may believe from the. evidence that the act complained of amounted to a trespass, yet the plaintiff can not recover unless such act was willful, wanton or malicious, is erroneous.</p> <p>7. Appellate Court Practice— Where the Assignment of Errors is Joint and Not Several.—The assignment of errors in this case is sufficient to call for an examination of the instructions severally; it must not be understood, however, that this court will examine and consider all the instructions in a case merely upon a general assignment of error without having the alleged errors definite^ pointed out in the briefs.</p>

<p>1. Service of Process—When Constructive Service is Relied Upon. —Where constructive service is relied upon a strict compliance with the provisions of the statute is required by the courts.</p> <p>2. Same—By Officers in Foreign States.—Where the return of service by a sheriff of a county in Pennsylvania showed that he served the writ “by leaving a copy of it at the late residence of S. P. P with an adult,” etc., and the Pennsylvania statutes provide that if the defendant can not conveniently be found, the service may be made by leaving a copy at his dwelling house in the presence of one or more of the adult members of his family, it was held, that the service shown by the return was insufficient to authorize a judgment by default.</p> <p>3. Statutes—Construction by Tribunals of Other States.—Where a statute of another State has been given a construction by the highest tribunals of that State, such construction will, ordinarily, be adopted as binding and conclusive.</p>

<p>1. Pleading—A Release, Puis Darrein Continuance, in Personal Injury Cases.—An action on the case for personal injuries is an exception to the general rule of the common law, that a matter of defense which arises after suit brought and after plea filed, and either before replication or after issue joined, must be pleaded puis darrein continuance. Such a release may be given in evidence under the general issue.</p> <p>2. Fraud—Release Obtained by.—Fraudulent representations which relate wholly to matters by which a person is induced to make a release are not sufficient to avoid such release in a court of law.</p> <p>3. Same—When Sufficient to Avoid a Release in a Court of Law.— The only fraud permissible to be proved at law for the purpose of avoiding a release is that touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper for another, or by obtaining by some other trick or device an instrument which the party did not intend to give.</p> <p>4. Release—Of Damages in Personal Injury Cases.—Where a release of damages in a case for personal injuries is understandingly executed by the person injured, it is legally binding upon him and furnishes a complete bar to an action by him for such injuries.</p>

<p>1. Mandamus—Will Not Lie to Compel the Setting Aside of a Change of Venue.—The better opinion seems to be that mandamus will not lie to compel the setting aside of a change of venue. This is certainly the better rule where the provisions of an appeal are so generous as in this State.</p> <p>2. Same—Where the Writ Can Not Properly he Issued.—A court of superior jurisdiction can not properly issue a writ of mandamus to compel an inferior court to do a thing which such inferior court has never been asked to do.</p> <p>3. Change of Venue—Second Change Before Justices of the Peace. —A change of venue is a statutory right and there is no provision of the statute authorizing a second change of venue in the same case before a justice of the peace.</p>

<p>1. Practice—When a Verdict Should Be Directed for the Defendant. —When the testimony in a case on trial before a court and jury is such that it would be the duty of the court, if a verdict should be returned in favor of the plaintiff, to set the same aside for want of sufficient evidence to support it, it is the duty of the trial court, upon motion, to instruct che jury to return a verdict for the defendant.</p> <p>2. Proximate Cause—Of an Injury, What Is.—Where a young girl, seven years of age, accompanied by two other little girls and followed by her mother, crossed a railroad track in front of a moving train in safety, and then turned back and re-crossed the track and was injured in consequence, it was held, that the act of turning back and re-crossing the track was the proximate cause of her injury.</p> <p>3. Evidence—Of Negative and Affirmative Matters.—Where the evidence in an action for a personal injury shows that a bell on an engine was operated by steam, the fact that witnesses state they did not hear it or notice that it was ringing, is of little value as against the positive statement of other witnesses that it was ringing, in connection with the undisputed fact that it was operated by steam automatically.</p>

<p>Distress for Bent.—Appeal from the Superior Court of Cook County. Heard in the Branch Appellate Court at the October term, 1899,</p>

<p>Action on the Case, for damages caused by falling walls. Appeal from the Superior Court of Cook County. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Beneficiary Associations—Burden of Proof as to Defaulting Members.—The burden of proof is upon the association to establish the default of one of its members by competent proof before it will be permitted to insist upon a forfeiture.</p> <p>2. Same—Notice of an Assessment, When Invalid.—-A notice requiring a member of a beneficiary association to pay an assessment within a less time than that prescribed by the by-laws and before it is due, is invalid.</p> <p>3. Same—Date of Assessments.—The date of an assessment, where the rules provide no special act or form in making an assessment, is the date of mailing the notice of such assessment.</p>

<p>Debt, on a treasurer’s bond. Appeal from the Circuit Court of Cook County. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Statutes—When Susceptible of Two Constructions.—When two constructions can be placed upon a statute, one of which would be in violation of the constitution and the other not, the latter construction must be adopted.</p> <p>2. Same—Construction of Section SI of Chapter 53, B. S.—Fees and Salaries.—That portion of section 31 of chapter 53, R. S., entitled “Fees and Salaries,” providing that the county collector shall be allowed a commission of one per cent on all moneys collected for incorporated cities, villages and other municipalities, etc., applies to counties of the third class only.</p>

<p>Debt, on appeal bond. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term. 1900.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. William H. G-est, Judge, presiding. Heard .in this court at the April term, 1900.

Trespass on the Case,.for personal injuries. Appeal from the Circuit Court of Lake County; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1900.

<p>Trover.—Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>1. Contracts—Must Save the Approval of Both Parties.—An agent of both parties to a proposed contract can not bind either party thereto, but the proposed contract must have the approval of both principals, after full knowledge of the facts, to bind either. This rule is not limited to cases where the agent is openly acting for both parties, or where he has actually favored one at the expense of the other.</p> <p>2. Same—Where Both Parties are Represented by 'the Same Agent.— The true test is whether the agent owes fidelity to each party, and has a discretion to exercise for either party, in a matter where there is a conflict of interest between the two principals, so that a strain might be placed upon the probity of the agent, and he might be under a temptation to betray or neglect the interests of one of the parties.</p> <p>3. Insurance—Oral Contracts for Re-insurance.—Where, in an alleged oral contract for re-insurance, the name of the owner of the property insured was not stated, nor the fact or names of third parties interested in the original insurance, nor the hazards covered thereby, nor the time the re-insurance was to be in force, nor the premium to be paid, held the essentials of a contract were not agreed upon.</p> <p>4. Same—Where the Contract Binds Both Parties at Will.—Where a contract of insurance is intended to bind each party only so long as it chooses, the insurer may cancel at will by notice to the other party.</p> <p>5. Same—Notice of Cancellation by Telephone. —Under the facts in this case, held cancellation was effected by notice over the telephone.</p> <p>6. Witness —Foundation for Impeachment.—Where a witness on cross-examination denies or does not admit making at a stated time and place a statement in conflict with his testimony, a witness called to impeach him in that respect should be asked directly whether at that time and place said witness did so state. The entire conversation can not be called for by the impeaching party.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaug-h, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Debt, for a penalty. Appeal from the Circuit Court of Henry County; the Hon. Fbank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>1. Laches—Will Defeat a Right of Redemption.—The right to redeem, is an equitable one which must be asserted within a reasonable time and may be lost by laches.</p> <p>2. Same— WMn a Court of Equity Will Not Lend Its Aid to Enforce Stale Demands.—When a court of equity is asked to lend its aid in the enforcement of a demand which has become stale, there must be some cogent and weighty reasons presented showing why it has been permitted to become so.</p> <p>3. Tender—Must be Kept Good to Have the Effect Intended.—A tender must be kept good, ready to be paid, subject to the order of the party to whom it is made, at any time he decides to accept it.</p>

<p>Mechanics’ Liens.—Appeal from the Circuit Court of Stephenson County; the Hon. Jambs S. Batjme, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Assumpsit, on a beneficiary certificate. Appeal from the Circuit Court of Winnebago County; the Hon. Charles E. Fuller, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Action to Recover for Property Destroyed by Fire.—Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>1. Municipal Corporations—No Inherent Power to Issue Bonds.— A municipal corporation has no power to issue renewal or refunding bonds as a matter of course, merely because it has become in debt.</p> <p>2. Same—Established for Purposes of Local Government.—Municipal corporations áre established for purposes of local government and in the absence of a specific delegation of authority, they are powerless to engage in any undertakings not directed immediately to the accomplishment of such purposes.</p> <p>3. Towns—Without Authority to Issue Bonds Under the Act of 1865. —The act of February 13,1865 (Laws of I860, page 44), confers no power upon incorporated towns to issue bonds for the purpose of refunding its indebtedness. The act limits the right to issue such bonds to counties and cities.</p>

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilsoher, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Bill for Partition.—Appeal from the Circuit Court of DuPage County; the Hon. George W. Brown, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Assumpsit, on a beneficiary certificate. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>1. Verdicts—In Tort Against Two or More Defendants.—A joint verdict against two or more defendants in an action of tort can not be allowed to stand as to part of the defendants and set aside as to the others.</p> <p>2. Judgments—At Law to be a Unit.—A judgment at law must be a unit as to all the defendants.</p> <p>3. Self-defense—Requirements of the Law.—The law requires of all persons the exercise of a reasonable degree of prudence before striking in so-called self-defense.</p> <p>4. Instructions—In Gases of Self-defense.—It is error to modify an instruction so as to restrict the defense of “self-defense ” in an action of trespass for assault and battery to cases where a. reasonably prudent and courageous man would believe that striking in self-defense was necessary for his protection.</p>