Volume 92 — Illinois Appellate Court Reports

Assumpsit, to collect an assessment upon a member of a mutuál insurance company. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding. Heard in this court at the April term, 1900.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heai-d in this court at the April term, 1900.

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of McHenry County; the Hon. Charles E. Fuller, Judge, presiding. Heard in this court at the April term, 1900.

<p>1. Practice of Medicine—Vendors of Spectacles Not Required to be Licensed.—One who causes a customer to look at objects on a wall, and therefrom determines what kind of lens he needs to aid his defective vision, and then has glasses ground accordingly and fitted into frames, and delivers such spectacles to his customer, is not required to first take out a license from tire State Board of Health to practice medicine, under the act of 1899 to regulate the practice of medicine.</p> <p>2. Same—Vendors of Spectacles Who Advertise.—Nor is such a person required to take out a license because he advertises for those who have headache, dizziness, etc., to call upon him, where the advertisement expressly declares that he does not give medical or surgical treatment, and it is apparent from the entire advertisement that all he professes to do is to fit spectacles to the eye.</p>

<p>Assumpsit, for services, etc.—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. Use and Occupation—Presumptions from the Occupancy of Lands.—The law is well settled that where one occupies the land of another, without any agreement, and where it is not shown that he is a trespasser, or the relation is other than landlord and tenant, it will be presumed that such occupation is as tenant; but there is no such implication if the facts are explainable in some other way, or are shown to be inconsistent with such relation.</p> <p>3. Life Estate—What Amounts to a Surrender of the Estate.— Where a tenant for life is in possession and an actual and continued change of possession occurs by mutual consent, such change amounts to a surrender of the life estate.</p>

<p>1. Pleading—In Actions of Trespass De Bonis Asportatis—Pleas Amounting to the General Issue.—A plea, in an action of trespass de bonis asportatis, which alleges that the plaintiff did not own and was not in possession of the property, etc., is to be regarded as amounting only to the general issue; for under the general issue it is incumbent upon the plaintiff to prove that he was in possession of the property at the time the trespass was committed.</p> <p>2. Fraud—Measure of Proof.—An instruction stating that fraud must be proved by clear and convincing evidence is not a correct statement of the law. In civil cases a party alleging fraud is only required to prove it by a preponderance of the evidence.</p> <p>8. Instructions—When a Party is Estopped, to Complain.—Where a party asks and has given on his part an instruction upon a particular subject, he is not in a position to complain of an instruction upon the same subject given for his adversary.</p>

<p>I. Appeals—Where No Question is Presented by the Record Which Can be Reviewed.—Where, in a case tried by a jury, the bill of exceptions does not state who offered the instructions, and contains no exceptions to the action of the court upon them, and no motion for a new trial, nor action of the court thereon, nor exception thereto, and no exception to the judgment, no question growing out of the trial is presented for review.</p>

Indictment, for illegal sales of. intoxicating liquor. Error to the Circuit Court of Ogle County; the Hon. JOHN S. Baume, Judge, presiding. Heard in this court at the April term, 1900.

<p>1. Account—The Form of Action Rarely Used.—While the action of account is rarely used for the reason that there are other forms of action better adapted to give the relief sought, yet it is fully recognized by our courts.</p> <p>2. Same—At Common Law and Under the Statute.—At common law the action of account lies against bailiffs and receivers, but the statute of this State has extended the right of action, enlarged the jurisdiction of the courts and increased the powers of the auditors.</p> <p>3. Pleading—In Actions of Account.—A declaration in an action of account which does not allege that a request for an accounting was made of the defendants, and that they failed or refused to make the same, is bad on demurrer.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Kankakee County; the Hon. Dorranoe Dibell, Judge, presiding. Heard in this court at the April term, 1900.

<p>1. Fraud—May be Proved by Circumstances.—Where the circumstances surrounding a transaction are sufficient to brand, it as fraudulent, the verdict of the jury finding it so will not be disturbed.</p> <p>2. Estoppel—To Claim Damages by a Person who Mixes his Goods ivitli Others Liable to Execution.—Where an officer, with an execution against the former owner of a stock of merchandise in the possession of a purchaser who has come into such possession fraudulently, and who has added other goods to the stock and mingled them with the same, gives such purchaser an opportunity to separate and retain such goods from the common stock, which he fails to do, and the officer makes bis levy upon the entire stock and proceeds to sell the same, such purchaser will be estopped from claiming damages for the taking of his goods and selling them with the rest of the merchandise.</p> <p>3. Same—By Persons who Mix their Goods with Other Merchandise. —Where a person mixes his own goods with others,which are subject to the levy of an execution, it is his duty to point them out to the officer having the execution, and if he fails to do so he will be estopped from afterward claiming damages from the officer for selling them.</p>

Trespass oil the Case, for injuries from a “live wire.” Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the April term, 1900.

<p>Bill to Set Aside a Fraudulent Conveyance.—Error to the Circuit Court of Will County; the Hon. John Small, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>1. Limitations—When the Commencement of an Action is Stayed.— When the commencement of an action is stayed.by an injunction, oixlcr of a judge or court or statutory prohibition, the time of the continuance of the injunction or prohibition is no part of the time limited for the commencement of the action.</p>

Action on the Case, for damages consequent upon improving streets. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the April term, 1900.

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of LaSalle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the April term, 1900.

<p>1. Payment—When the Talcing of a Note is.—The taking of a note, either of the debtor or of a third person, for a pre-existing debt, is not a payment unless there is an express agreement that the note shall be so taken, or unless the creditor has parted with the note so as to subject the debtor to double payment.</p> <p>2. Question of Fact—Whether the Giving of a Note is a Payment.— The question as to whether the giving of a note is a payment of a debt is one of fact for the jury.</p> <p>3. Evidence—Books in the German Language.—The introduction of a book in the German language without a translation is improper, but where no exception is taken and the book is not afterward used or referred to in the trial of the case, its admission is harmless error.</p>

Action on the Case, under the dram-shop act. Error to the Circuit Court of Warren County; the Hon. George W. Thompson. Judge, presiding. Heard in this court at the April term, 1900.

<p>Assumpsit, on an oral contract of subscription. Appeal from the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the April term, 1900.</p>

<p>Assumpsit, on a promissory note. 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>Assumpsit, on an open account. Appeal from the County 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 La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the April term, 1900.

Trespass on the Case, for a wrongful disposition of collateral security. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1900.

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

<p>1. Instructions—Harmless Error.—Where an instruction is somewhat faulty and open to criticism, if the jury could not have been misled by it, it will not be sufficiently erroneous to require a reversal of the judgment.</p> <p>2. Evidence—Of the Condition oj Lights Must he Confined to the Night of the Accident. —Where a witness in a personal injury case testifies to the condition of the lights on the night of the accident, but on cross-examination it is developed that he could not testify as to such condition on the night of the accident, it is proper to strike out his testimony as to other nights on which he had observed the absence of the lights.</p>

<p>Motion to Set Aside an Order Dismissing an Appeal—Appeal from the Circuit Court of Cook County. Heard in the Appellate Court at the March term, 1900.</p>

<p>1. Mechanics’ Liens—A re Purely Statutory. —The lien of a mechanic is purely statutory, and if a claimant fails to comply substantially with the provisions of the statute, he can not secure a lien.</p> <p>2. Same—Claims for Lien Under the Law of 1S9S.—Under section 28 of the mechanics' lien law of 1893, creditors can not enforce a lien as against other creditors, or incumbrancers or purchasers, unless a statement of a claim for a lien has been filed, as provided by the act.</p> <p>3. Sams—Statement Where a Single Lien is Claimed upon Distinct Lots of Land.—As against third persons, whose rights have intervened, a mechanic’s lien, claimed as a single lien upon distinct lots, can not be apportioned so as to preserve the lien upon each lot, where there is nothing in the statement filed with the clerk to indicate the amount claimed, or the times when the labor and material were furnished for each lot.</p> <p>4. Same—An Insufficient Statement.—The statement for a lien in this case is given in the statement of the case by the court, and is held insufficient.</p>

<p>1. Evidence—When Not Sufficient to Overcomea Written Instrument. —Transactions between two brothers, one of whom was a member of a partnership, in relation to the loan of money and giving the firm note for it, while creating a suspicion that the transaction was a personal affair between the brothers, does not in this case furnish tangible evidence sufficient to sustain such conclusion and overcome the direct evidence of the written instrument bearing the firm signature by one of its members.</p> <p>2. Same—Foundation for the Introduction of Partnership Boohs of Account.—The testimony that a person connected with a partnership has stated that the account books of the firm are correct and show all the business transactions of the firm, is at most only a general expression of opinion and not sufficient to entitle such books to be admitted in evidence.</p> <p>3. Practice—In Suits Against Two or More Defendants. —Under the statute of this State a plaintiff may sue two or more defendants whether partners or not, and take judgment against as many as are served with process, and the rest may be made parties to the judgment by summons in the nature of a scire facias; but whether they are made parties to the judgment or not, the judgment is valid because the statute authorizes it.</p>

<p>Bill for an Injunction.—Error to the Circuit Court of Cook County. Heard in Branch Appellate Court at the March term, 1900.</p>

<p>Garnishment.—Appeal from the Superior Court of Gook County. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Replevin—Duty of the Officer Talcing Bond.—Where an officer replevies property without taking a bond in a sufficient penalty to protect the defendant in case a return is awarded, he will be liable upon his official bond for the damage sustained. It is his duty to ascertain the value of the property sought tp be replevied, independently of the plaintiff’s affidavit, and fix the amount of the bond accordingly.</p>

<p>1. Errors—Which Do Not Prejudice the Party Complaining.—A party can not be heard to complain of an error which does not operate to his prejudice.</p> <p>2. Appellate Court Practice—Each Case to be Decided upon Its Own Record.—Each case must be decided upon the record filed in it and upon that alone.</p>

<p>1. Practice—Recovery Under the Common Counts.—A recovery may be had under the common counts where nothing remains to be done but the payment of the money claimed to be due.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>Indictment for Obtaining Money by False Pretenses.—Error to the Criminal Court of Cook County. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>Assumpsit, for commissions. Appeal from the Circuit Court of Cook County. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>1. Practice— Recovery Under the Common Counts.—A recovery is proper under the common counts where the evidence shows that nothing remains to be done but the payment of the money in question.</p> <p>2. Same—Where Indebitatus Assumpsit Lies.—The action of indebitatus assumpsitwtil lie although the debt sued for accrued under a special contract, and such contract may be proper and necessary evidence in support of the action.</p>

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

<p>Prosecution under Section 2 of the Act to Regulate the Practice of Pharmacy.—Appeal from the Circuit Court of Cook County. Heard in the Branch Appellate Court at the October term, 1899.</p>

<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>

<p>1. Presumptions—In Aid of Judgments at Law Do Not Apply to Decrees.—Presumptions which will aid a judgment at law do not exist in favor of decrees in chancery and the court will not presume that any evidence was given in the court below except such as appears by the recitals of the decree or is otherwise made to appear.</p>

<p>1. Corporations—Queers’ Salaries—By-Laws.—A director of a corporation who accepts an election to the position of secretary and manager must be presumed to have accepted the position with a full knowledge of the provisions of the by-laws and to have held the same subject thereto.</p> <p>3. Same—Officers—-When Not Entitled to Salaries.—A director of .a corporation is not entitled to a salary, however justly earned, unless previously authorized by the by-laws of the corporation or by resolution of the board of directors.</p> <p>3. Same—Where the Officer has Made it Impossible for the Company to Enable Him to Earn His Salary.—An officer of a corporation is not entitled to a salary where by his own act he has made it impossible for the company to enable him to earn it.</p>

<p>1. Assault and Battery—In Defense of One's Property.—Where a person without right is in the act of carrying away the property of another from the owner’s premises, the law does not require the owner to stand idly by and permit the same to be done; he may demand his property, and in case the demand is refused, retake the same, provided he uses only such force as is reasonably necessary in so doing.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>Forcible Entry and Detainer,—Appeal from the Circuit Court of Cook County. Heard in this 'court at the March term, 1900.</p>

<p>1. Contracts—Prior Parol Negotiations Presumed to be Merged.— Where.there is no ambiguity in a sealed lease all the parol negotiations of the parties at the time of its execution are presumed to be merged in the lease.</p> <p>3. Landlord and Tenant— What the Assignment of the Leasehold Estate Carries with it—Effect of Acceptance of Sent—The right of a tenant to assign his leasehold does not carry with it a release of all obligation upon his covenants to pay rent for the remainder of the term, nor does the acceptance of rent by the landlord from the assignee accomplish such a release of the assigning tenant. The privity of contract is not disturbed by the fact that there is no longer any privity of estate between the landlord and the assigning tenant.</p> <p>3. Ultra Vires— Where the Defense May be Successfully Interposed. —The defense of ultra vires may be successfully interposed in a collateral proceeding where it is made to appear that the disputed act is one which the corporation was not, under any circumstances, authorized to perform.</p> <p>4. Same—Where the Act is an Abuse of Power Only.— In cases where the most that can be said of the act is that it is an abuse of power, the plea of ultra vires will not avail, for an abuse of power can not be attacked collaterally.</p> <p>5. Corporations—Jurisdiction of the State to Correct Abuses of Power—Ultra Vires.—Where the act of a corporation is merely an abuse of power the only method of correcting it is through an action by the State.</p>

<p>Foreclosure of a “Trust Deed.—Appeal from the Circuit Court of Cook County. Heard in this court at the March term, 1900.</p>

<p>1. Confession of Judgment—Upon Joint Warrants.—A joint warrant of attorney for the confession of a judgment upon a promissory note, does not authorize the confession of a several judgment against one of the makers alone.</p> <p>2. Same—Authority, to Confess Must be Strictly Construed.—The authority to confess a judgment under a warrant or power of attorney must be strictly construed.</p> <p>3. Same—The Authority Must be Strictly Pursued.—The power to confess a judgment must be clearly given and strictly pursued or the judgment will be void.</p>

<p>Bill to Obtain a Judicial Construction of a Will.—Appeal from the Circuit Court of Cook County. Heard in this court at the March term, 1900.</p>

<p>1. Life Insurance—Effect of an Assignment of a Policy When Prohibited by Law.—The fact that an assignment of a policy of life insurance to a person having no insurable interest in the life of the insured is prohibited by the laws of a State, is applicable to a defense by the insurer against such assignment but is of no avail when urged by the assignor.</p> <p>2. ' Handwriting— Comparison of Signatures.—The rule in this State permits a comparison of a signature in dispute with signatures admittedly genuine which are in evidence relative to some issue in the case.</p> <p>3. Chancery Practice—Presumptions in Favor of Decrees.—In proceedings in chancery where evidence is improperly admitted, such evidence will not operate to invalidate the decree. If the decree is sufficiently supported by other evidence in the case, it will be presumed tliat the court considered only the competent evidence in rendering its decision.</p> <p>4. Witnesses—Competency of a Widoiv in a Controversy with the Administrator of Her Deceased Husband from Whom She Had Been Divorced, Concerning the Assignment of a Policy of Life Insurance.—In a controversy between a widow and the administrator of her deceased husband, from whom she had been divorced, concerning the validity of an assignment of a policy of life insurance, such widow is incompetent, under the statute, as a witness to deny the assignment.</p> <p>5. ' Costs—In Chancery, Discretionary.—The awarding of costs in chancery proceedings is discretionary with the chancellor, but such discretion must be a sound legal discretion and must not be so exercised as to do manifest injustice, and is subject to review for abuse.</p>

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

<p>1. Railroads — Bate of Speed Depends upon Circumstances.— Whether the rate of speed which a railroad train is running in approaching a highway crossing is or is not negligence, depends wholly upon the circumstances existing at the time in question and with respect to the crossing itself.</p> <p>3. Same—Speed of Trains Where Not Regulated by Law.— Where the speed of trains is not regulated by law, railroad companies may adopt such a rate as they choose, provided thp rate adopted does not endanger the safety of passengers, or of persons who may have occasion to cross their tracks in the public highways.</p> <p>3. Instructions—Omission of Elements of Negligence Charged..—In an action against a railroad company for negligence in causing the death of a person riding in an omnibus upon a highway approaching a railroad crossing, an instruction which omits any of the elements of negligence and precludes a recovery if the driver of the omnibus was negligent, although the negligence of the railroad company in an equal measure contributed to the injury, is erroneous.</p> <p>4. Same—As to What Amounts to Negligence.—An instruction which in effect tells the jury that certain specified acts amounted to negligence is erroneous. The question as to whether such acts amounted to negligence should have been left to the jury.</p> <p>5. Negligence—Of the Driver of an Omnibus Not to be Imputed to His Passengers.—The negligence of the driver of an omnibus upon the highway approaching a railroad crossing, is not to be imputed to the passengers in the omnibus.</p>

<p>1. Appeals—Failure to File Bond Fatal—The failure to file an appeal bond within the time limited by the order of the court allowing the appeal is fatal to the appeal.</p> <p>3. Appeal Bonds—Computation of Time for Filing.—The time allowed for the filing of an appeal bond is to be computed from the day the order is made, so when an order allowing an appeal was made on the 13th day of January, on filing a bond, etc., within thirty days, it was held that a bond filed on the 14th day of February was too late.</p>

<p>1. Survivorship—Presumptions where Persons Perish in a Common Disaster.—In the absence of evidence from which survivorship can be determined, it will be presumed, for the purpose of settling rights to property, that all persons perishing in a common disaster die at the same time.</p> <p>2. Beneficiary Associations—Survivorship where the Insured and Beneficiary Perish in a Common Disaster.—A person held a certificate in a beneficiary association providing that in case of his death the benefits should be paid to his wife in case she did not die before his death.</p> <p>If she did, the benefits, by the laws of the association, were payable to his heirs. Both perished in the burning of their dwelling. It was held, in the absence of any evidence showing to the contrary, that both died at the same time; that until the death of the insured the wife’s interest in the certificate was a mere expectancy, and as she did not survive him, there was no instant of time when such expectancy could have ripened into a vested right.</p>

<p>Trespass on the Case.—Appeal from the Circuit Court of Cook County. Heard in this court at the March term, 1900.</p>

<p>1. Chancery Practice— When Objections Come Too Late—In a proceeding to dissolve a partnership and for an accounting of partnership matters, if evidence relating to negotiations between the parties prior to the execution of the partnership agreement is admitted without objection before the master, and no exceptions taken to his report, the hearing before the chancellor is limited to questions of this nature raised by the exceptions, and if such questions are not so raised, error can not be assigned in respect to them.</p> <p>2. Estoppel— Of a Party to Complain of the Admission of Ineompetent Evidence.—Where a party litigant is examined as a witness in his own behalf and gives his version of the negotiations between him and his opponent prior to the execution of the agreement between them, and the evidence of the parties is conflicting and admitted without objection, neither party can be heard afterward to insist that such statements and conversations were not competent evidence.</p> <p>3. Contracts—Extrinsic Evidence as to the Intention of the Parties. —For the purpose of ascertaining the intention of the parties to a contract, courts will endeavor by extrinsic evidence of such facts as the parties had in view, to place themselves as nearly as possible in the place of the contracting parties so that they may understand the language used, in the sense intended by them.</p> <p>4. Same—To he Enforced as the Parties Mutually Understood Them. —In construing contracts, courts will seek to discover and give effect to the intention of the parties, so that the performance of the contract may be enforced according to the sense in which the parties mutually understood it at the time it was made; and greater regard is to be had to their clear intent than to any particular words which they may have used to express it.</p> <p>6. Partnerships— When a Court of Equity Will Decree a Dissolution. —Courts of equity will decree a dissolution of a partnership when the disagreements and disputes between the partners have become so violent and lasting as to prevent any beneficial results from the continuance of the relation.</p>

<p>1. Negligence— When Not Contributory, as a Conclusion of Law.— The face that a girl, twelve years of age, at the time of an injury by reason of a defective sidewalk, was walking backward, talking to other children in company with her, does not of itself establish negligence on her part as a conclusion of law.</p> <p>2. Same—A Question for the Determination of the Jury.—The question as to whether a girl twelve years of age, on her way to school, in company with other children, who walked backward for a few steps while talking to her playmates, and was injured by falling into a hole in the sidewalk, was guilty of negligence, is one for the determination of the jury under all the circumstances of the case.</p> <p>3. Sidewalks—Rights and Duties of Persons Upon—A pedestrian upon a sidewalk may ordinarily assume that such walk is in a reasonably safe condition for travel. He is not bound to keep his eyes constantly fixed on the walk in a search for possible holes or other defects.</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>1. Mechanics’ Liens—When a Bill for a Lien is Erroneously Dismissed.—Where there is money in the hands of the owner of a building in the course of erection, which should be applied to the payment of the person furnishing lumber for the erection of such building, the requirements of the lien law having been complied with, it is error to dismiss a bill filed for the purpose of foreclosing the lien.</p>

<p>Forcible Entry and Detainer.—Appeal from the Circuit Court of Cook Countv; the Hon. Charles A. Bishop. Judge, presiding. Heard in the Branch Appellate .Court at the October term, 1899.</p>

<p>1. Remittitur — Excessive Verdicts.—The practice of curing an excessive verdict by entering a remittitur may be regarded as fully established and confirmed.</p> <p>2. Same—Trial Court to be the Judge as to the Amount.—The trial court which sees the witnesses and hears their evidence is in a better position to form an opinion as to the propriety of the amount of a remittitur than is the Appellate Court, sitting as a court of review, with only the record before it.</p> <p>3. Excessive Verdicts—Not Always an Indication of Prejudice, etc. —The mere fact that a verdict is excessive does not necessarily indicate that it is the result of passion, sympathy, prejudice or mistake of the jury where there was no question ■ in the case which could properly produce such a result.</p>

Assumpsit, for damages for a failure to comply with the terms of a contract. Error to the County Court of Cook County; the Hon. H. W. Johnson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.

<p>1. Verdicts—On Conflicting Evidence, Conclusive.—Where there is a conflict in the testimony, the conclusion of the jury upon the facts must be regarded as final, unless they have been erroneously instructed or there was error in the admission or exclusion of evidence.</p>

<p>Assumpsit, for work and labor. 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>Mechanics’ Mens.—Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.</p>

<p>Bill to Wind Up the Affairs of a Corporation. —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. Building and Loan Associations—Not Authorized to do a Banking Business.—A homestead and loan association, organized under the statutes of Illinois, has no power to receive deposits and contract to pay interest thereon, and if it does so, its acts are ultra vires. Such associations are not authorized by law to do a banking business.</p> <p>2. Intervenors—In Proceedings to Dissolve a Building and Loan Association.—A petition of an intervenor, after a decree in a proceeding to dissolve a building and loan association, can only be filed on the hypothesis that the proceedings are valid and regular, and that the decree dissolving the association and directing a distribution of its assets is a valid decree. He can not be heard to attack its validity by asserting that it was not a legal corporation under the statute.</p>

<p>Chattel Mortgages— When Valid, Without Acknowledgment.— A chattel mortgage not acknowledged in compliance with the requirements of the statute is invalid as against bona fide purchasers and creditors but is valid as between the mortgagor and mortgagee.</p> <p>2. Receivers—Power to Reach Assets of an Insolvent Debtor.—A receiver can not, as the representative of an insolvent person, reach assets which in equity ought to be subjected to the payment of his debts, bub which have been placed by such .insolvent beyond the reach ofuthe law.</p> <p>3. Same—Powerless to Assert Rights which the Insolvent Could Not Assert.—A receiver of an insolvent person can not, as the representative of such insolvent, assert rights which the insolvent himself could not assert.</p> <p>4. Notice—Of Invalidity of Chattel Mortgage Does Not Preclude a Creditor.—The mere fact that a creditor has actual notice of the invalidity of a chattel mortgage does not preclude him from purchasing the property free from its lien. He stands in this respect at no greater disadvantage than any ordinary purchaser, and may acquire title of the property free from any lien of an imperfectly executed mortgage although he had actual knowledge of its existence when he buys.</p> <p>5. Creditors—Who are Regarded as Such in Respect to Invalid Mortgages.—Where a judgment creditor filed a creditor’s bill and procured the appointment of a receiver for an insolvent corporation and the sale of the corporate assets by order of the court appointing the receiver, at which purchases were made of property upon which there was a chattel mortgage executed by the insolvent corporation but lacking acknowledgment in compliance with the requirements of the statute, it was held that a purchaser at such sale occupied the same position as a creditor and was not precluded from questioning the validity of the chattel mortgage.</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 March term, 1900.

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

<p>1. Partnerships—Contracts Binding upon Each Member.—A contract with a partnership binds each member of the firm individually, as well as his individual property, to the same extent as it does the firm, and the firmproperty.</p> <p>3. Same—Contracts xvithin the Spirit of the Mechanic’s Lien Law.— A contract with a partnership for materials to be used in a building on the real estate of one of the partners is within the spirit and intention of the mechanic’s lien law, construed as a remedial statute.</p> <p>5. Chancery Practice—Presumptions as to the Consideration of Incompetent Evidence.—Where there is competent evidence in the record sufficient to sustain the findings of the master and the decree of the court, it will be presumed that all improper evidence was rejected.</p> <p>4. Mechanic’s Liens—Several Buildings under a Single Roof.— Where several buildings are constructed under one roof and the materials for building them are furnished under one contract, it is unnecessary to apportion the lien among different subdivisions of the ground upon which the buildings are erected.</p>

<p>Assumpsit, on a policy of insurance. 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>

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

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County. Heard in this court at the March term,</p>

<p>Petition for a Mechanic's Lien.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 3900.</p>

<p>Action on the Case.—Death from negligent act. Error to the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

Assumpsit, on a beneficiary certificate. Appeal from the Circuit ’ Court of Cook County; the Hon. Elbridqe Haneoy, Judge, presiding. Heard in this court at the March term, 1900. Reversed, and judgment in this’ court.

<p>1. Promissory Notes—Time of Payment to be Unconditional.—No contract or agreement is a promissory note, either negotiable or nonnegotiable, which does not provide for the payment absolutely and unconditionally. If the payment depends upon a contingency which may never happen it is not a promissory note.</p> <p>3. Same—Where the Time of Payment is Not Fixed—Re-Issue.—A contract stating that on or before one year after the date of the “ completion of the piling and filling ” of certain premises according to the requirements of a certain agreement of even date therewith, the date of which said completion of piling and filling to be determined by the Board of Commissioners of Lincoln Park and evidenced by the certificate and notice in writing served on the payor, who, for value received, promises to pay to the order of M. A., $7,500. is not a promissory note, and can not be re-issued by the maker thereof in the sense or in the mode that a promissory note then due, may be re-issued.</p> <p>3. Same—Assignability and Negotiability.—There is a marked difference between the assignability and negotiability of a promissory note. The mere indorsement does not operate to transfer or assign a non-negotiable instrument. The title to such an instrument does not pass by mere delivery.</p> <p>4. Contracts—Construction Where Two Instruments Are Executed as a Part of the Same Transaction.—Where two instruments are executed as a part of the same transaction and agreement, whether at the same or different times, they will be taken and construed together.</p>

Bill for a General Settlement, under the mechanic’s lien law. Appeal from the Circuit Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.

<p>1. Judgments—Form of, Where the Debt is for Wages—Exemptions. —Where a judgment is for the wages of a laborer or servant a statemen fc in the record that such judgment is for “ work and labor ” is not sufficient under the statute providing that no personal property shall be exempted from levy of attachment or execution when the judgment is for the wages of any laborer or servant.</p>

<p>1. Real Estate—Rights of Purchasers at Masters’ Sales.—The purchaser of real estate at a master’s sale in foreclosure proceedings acquires only a lien upon such real estate and is not entitled to possession until he receives a deed of conveyance from the master making the sale.</p> <p>2. Same—Master's Sale Does Not Pass the Title.—The legal title of land sold at a master’s sale in foreclosure proceedings does not pass by such sale; the purchaser acquires the right to a conveyance of the title only in case the premises are not redeemed and no new title vests until the period of redemption has expired.</p> <p>3. Same—Possession During the Period of Redemption.—The owner of a leasehold estate in premises sold at a master’s sale in foreclosure proceedings is entitled as against the purchaser at such sale to the possession and the rent, issues and profits, pending the running of the period of redemption.</p> <p>4. Lease—Liability of an Assignee for the Rent.—Until a lease of real estate is assigned or so transferred that a privity of estate is created between the original lessor and the assignee, such assignee is not liable to the lessor for the rent.</p> <p>5. Receiver—Liability for Rents.—A receiver is liable for the rent of premises occupied by him as a part of the costs of his administration, for the period during which he is in possession, receiving the benefits and enjoying the advantages of the demise.</p>

<p>Garnishment Proceedings, etc.—Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>Bill of Foreclosure.—Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Life Insurance—Burden of Proving Statements to be False.—If the insurer knows or believes any of the statements of the insured in his application for insurance to be false, the burden is upon him to furnish the evidence upon which his knowledge or belief rests.</p>

<p>Debt on an Appeal Bona.—Error to the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

Action on the Case, for damages to a consignment of freight. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.

<p>Indictment for Obtaining Credit by False Pretenses.—Error to the Criminal Court of Cook County; the Hon. Area N. Waterman, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>Action for Obstructing Ditches.—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>

Mandamus, to compel the county treasurer to pay an order in favor of the shorthand reporter of the City Court of -the City of Litchfield. Appeal from the City Court of the City of Litchfield; the Hon. Amos Oller, Judge, presiding. Heard in this court at the May term, 1900.

<p>1. Verdicts—On Conflicting Evidence.—Where the evidence is conflicting and the verdict has the approval of the trial judge, the Appellate Court, as’a general rule, will be unwilling to disturb the finding on the ground that it is contrary to the evidence.</p>

<p>Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of Sangamon? County; the Hon. George W. Murray, Judge, presiding. Heard in this court at the November term, 1899.</p>

<p>Debt, upon a replevin bond. Appeal from the Circuit Court of DeWitt County; the Hon. William G-. Cochean, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>i. Instructions—Should Clearly State the Law.—The object of an instruction is to clearly state the law for the guidance of the jury, based upon the evidence as it tends to prove or disprove the material issues of the case.</p> <p>2. Same—Should Correctly Define the Issues.—An instruction which incorrectly defines the issues, or does not submit the real issue to the jury, and contains a direction to find for the,plain tiff in the event the issue as submitted is found in his favor, is misleading.</p>

<p>1. Practice-—What Constitutes a Jury—la the absence of qualification the word “ jury ” means a jury of twelve men. '</p> <p>2. Juries—In the Circuit Court.—The act governing juries in the Circuit Courts has no qualification, and provides that a jury shall consist of twelve men.</p> <p>3. Same—On Appeals from Minor Jurisdictions.—When an appeal is taken from a minor jurisdiction to the Circuit Court, the cause stands for trial de novo, according to the practice of the Circuit Court, and not by that of the inferior tribunal.</p> <p>4. Same—In Trials of Insane Persons, on Appeal from the County Court.—On the trial of applications for the appointment of conservators for insane persons in the Circuit Court, on appeal from the County Court, the trial is to be by a jury of twelve men according to the practice of the Circuit Court, and not by a jury of six as in the County Court.</p>

DeM, upon the official bond of a police magistrate. Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1900.

Assumpsit, for compensation and subsistence while acting as a special deputy sheriff. Appeal from the Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the May term, 1900.

Trespass on the Case.—Death from negligent 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>1. Counties—Construction of an Order Fixing the Sheriff’s Compensation.—An order of the county board fixing the compensation of the sheriff merely, does not include his necessary expenses, and where no order is passed limiting the amount of his expenses he can recover from the county all such expenses as are necessarily paid out by him in the discharge of his duties.</p>

Debt, on a dram-shop keeper’s bond. Appeal from the Circuit Court of Vermilion County: the Hon. Ferdinand Booblwaltbr, Judge, presiding. Heard in this court at the May term, 1900.

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.

Trespass on the (iase.-Death from negligent act. Appeal from the Circuit Court of Macoupin County; the Hon. ROBERT B. SmELEY, Judge, presid ink. 1-leard in ~liis court at the May term, 1900.

<p>1. Guardian ad Litem—Power of the Circuit Court to Tax the Fees Of.—The Circuit Court has no power to tax against an unsuccessful party the fee of a guardian ad litem, for services rendered by him in behalf of minor defendants in a suit in the Supreme Court.</p>

<p>Debt, to recover a statutoiy penalty. Appeal from the County Court of McLean County; the Hon. R. A. Russell, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>1. Practice of Medicine—Massage Treatment.—The treatment of a patient by rubbing and manipulating the affected parts by flexing and moving the limbs, commonly known as “ massa'ge ” treatment, is practicing medicine within the meaning of the act regulating the practice of medicine. Such treatment is the employment of a material remedy and does not come within the exception contained in the amendatory act of 1899 applying to persons treating the sick by mental or spiritual means.</p>

<p>Action in Case, for malpractice. 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>Application for Compensation, etc.—Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, 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 Hancock County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1900.

<p>Motions to Consolidate Judgments, etc.—Error to the Circuit Court of Moultrie County; the Hon. Francis M. Wright, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>1. Promissory Notes—Given in Settlement of Losses in Option Deals.—A promissory note given in settlement of losses in option deals on the Board of Trade, is illegal and against public policy, and its mere recognition by part payments and promises to pay the balance by the maker will not relieve it from its illegality or estop him from urging it as a defense.</p>

<p>1. Elections—City Council the Judge of the Election and Qualification of its Own Members.—The city council, in cities incorporated under the general law of this State, is the exclusive judge of the election and qualification of its own members, and the courts will not exercise jurisdiction to hear and determine such election and qualification except at the suit of the people in a quo warranto proceeding to determine the de jure right of such member to act.</p>

Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1900.

<p>1. Appellate Court Practice—Records to he Made in the Trial Courts.—It is for the trial court to make the record in the first instance and it is the right of any party to have the transcript filed in the Appellate Court conform to the record as made by the trial court. It is the duty of this court to consider the record as certified from the trial court.</p>

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

<p>1. Final Judgments—In Interpleader—Appeals. —Where a demurrer is sustained to an interpleader in attachment proceedings and judgment is rendered against the party interpleading for costs incident to the filing of the interpleader, such judgment is final, and from it an appeal will lie.</p> <p>2. Sales—Purchasers of Property in the Custody of the law.—A purchaser of property in possession of a sheriff by virtue of irregular attachment proceedings, is bound to know that amendments may be made by which the proceedings may be sustained.</p>

<p>1. Jury—Province of, in the Conflict of Evidence.—In a conflict of evidence it is the province of the jury to determine where the truth is.</p>

<p>Prosecution for the Yiolation of an Ordinance.—Error to the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1900.</p>

Assumpsit, for the breach of a contract. Appeal from the Circuit Court of Morgan County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1900,

Trespass and Case.—Collision upon the public highway. 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>Trespass, for an illegal assault. Error to the Circuit Court of Shelby County; the Hon. Trdman E. Ames, Judge, presiding. Heard in this court at the May term, 1900.</p>

<p>Prosecution for Obstructing a Highway.—Error to the Circuit Court of Brown County; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1900.</p>

Assumpsit, for a failure to deliver merchandise. Appeal from the Circuit Court of Moultrie County: the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1900.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1900.

Trespass on the Case, for personal injuries. 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>1. Fraud—Charges of, to be Sustained by Proof.—Charges of fraud must be sustained by evidence; a mere suspicion of fraud is not sufficient. ■</p>

<p>Bill for an Injunction.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1900.</p>

<p>1. Witnesses—Competency as to Values.—Every person is supposed to have some idea of the value of property which is in almost universal use, and the weight to be given to his testimony is a matter for the determination of the jury.</p> <p>2. Appellate Court Practice—When the Question of Excessive Damages Can Not Be Raised.■—Where a party fails to include in his motion for a new trial the question of excessive damages as one of the grounds, he can not assign the same for error in the Appellate Court.</p>

<p>1. Practice—Forcing a Party to Trial Before the Issues are Settled. —It is error to compel a defendant to go to trial where there is no replioation to a special plea filed by him.'</p> <p>2. Same—Refusing to Allozo Counsel to State What He Expects to Prove by a Witness.—When an objection to a question is sustained and there is no statement of counsel as to what it is expected to prove by the witness, it is impossible for a reviewing court to determine-whether there was error or not, in sustaining the objection. It necessarily follows that it is error in a trial court to refuse counsel an opportunity to state what he expects to prove by any particular question or series of questions.</p> <p>3. Same— Where the Court is of the Opinion that the Statement is Not Made in Good Faith.—Where the court is of the opinion that the statement is not made in good faith, or that it is calculated to improperly influence the jury, the jury may be ordered to retire while the statement is being made, or it may be made to the court so as not to be heard by the jury.</p> <p>4. Witnesses—Competezzcy as to the Value of Household Goods.— Any one familiar with the value of household goods and property in common use may testify as to its value without its being shown that he is an expert on such values.</p> <p>5. Trespass—Liability of Partners,—A partner is not liable for the trespass of his copartner with which he is in no way connected.</p> <p>6. Evidence—Allegations in Pleadings.—Where there are several pleas in a case an allegation in one of them can not be taken as evidence of a matter which is denied in another plea.</p> <p>7. Judgments—Erroneous as to One, so as to All.—If a judgment in tort is erroneous as to one defendant, it is erroneous as to all.</p>

<p>Debt, on a bond. Appeal from the Circuit Court of Cook County; •the Hon. Charles Gh Neely, Judge, presiding. Heard in this court at the March term, 1900.</p>

<p>1. Appellate Court Practice — Insufficient Abstracts.—Where there is nothing in the abstract showing defects in the declaration from which this court can determine the points presented by a demurrer to it in the trial court, the judgment should be affirmed under the rules and practice of this court.</p>

<p>AUaclnneixt anil Garnishee Proceedings.—Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>!• Leases—Construction. Where two are Executed at the Same Time. —Where two leases between the same parties are executed at the same time and relating to the same subject-matter, both are tb be construed together as one instrument.</p> <p>2. Consideration—Power of a Court of Equity to Inquire into, Regardless of Seals.—A court of equity will inquire into the real consideration of a contract, or whether there was any consideration, regardless of the rule at law that a seal imports a consideration.</p> <p>8. Injunction—Lies to Restrain the Unexecuted Part of an Illegal Agreement.—Where an illegal contract has been partially executed, a court of equity will grant relief by injunction restraining the enforcement of the unexecuted part of such agreement.</p> <p>4. Remedies—Distinction Between an Executed and an Executory Rlegal Agreement of Corporations.—The executed dealings of a corporation under an illegal agreement will be allowed to stand, but the rule is otherwise where the agreement is ultra vires and remains executory.</p> <p>5. Pleadings-—Allegations of Insolvency — When Unnecessary. — Where the injury complained of in a bill for an injunction is irreparable, it is not essential to the jurisdiction of a court of equity that it should also contain an allegation of the defendant’s insolvency.</p> <p>6. Same—Averments of Irreparable Injury—Loss of Trade. —An averment of the loss of trade is a sufficiently specific averment of irreparable injury to support a bill for an injunction.</p>

<p>Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1900.</p>

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

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

<p>Assumpsit, for services, etc. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1900.</p>

<p>Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, 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. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1900.

<p>1. Malicious Prosecution— Conviction Before a Justice of the Peace, When Conclusive upon the Question of Probable Cause.—When a justice of the peace has jurisdiction to render final judgment in the examination of a criminal charge, and is not simply a committing magistrate, when the hearing is fair, without fraud, the testimony free from perjury and results in the conviction of the defendant, such conviction is conclusive upon the question of probable cause for the prosecution, although on appeal- the defendant may be acquitted.</p> <p>3. Same—Suits Not Encouraged.—The decisions of the courts incline toward the encouragement of criminal prosecutions when they are instituted in good faith, without malice, and for the purpose of punishing violators of the law, and for that reason suits for malicious prosecution are not favored.</p> <p>3. Declaration—When Defective, Not Cured by Pleas.—A plea to a declaration which fails to stare a cause of action does supply the defect or aid the declaration.</p>

Assumpsit, for a failure to deliver merchandise. Appeal from the Circuit Court of Cook County: the Hon. Edward P. Dunne, Judge, presiding. Heard in this court at the March term, 1900.

Action on the Case, by an administrator, for negligence in permitting an excavation to remain for a long space of time upon adjoining premises, etc. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1900.

<p>1. Chancery Practice—Ora the Death of a Bole Complainant.— The death of a sole complainant does not abate the suit, if the cause of action survives. The party to whom such cause of actiou survives by suggesting such death upon the record may be substituted as a party in the place of the deceased and the suit prosecuted as in other cases.</p> <p>2. Statutes—When a Subsequent Act Repeals a Former One.—A subsequent statute re vising, the whole subject-matter of a former act and intended as a substitute for it, although it contains no express words to that effect, operates as a repeal of the former act.</p> <p>3. Same—Construction of the Act in Relation to the Abatement of Suits.—The act to revise the law in relation to the abatement of suits is a revision of the subject-matter of abatement and chancery procedure and in case of the death of a party controls as to the matter of procedure.</p> <p>4. Same—Construction of the Chancery Act and the Abatement Act. — The chancery act and the abatement act are clearly repugnant in their provisions and the latter must prevail, as it repeals by implication the provisions of the chancery act so far as the abatement act provides for a different method of procedure in case of the death of a party pending the suit.</p>

<p>1. Executors—Poiver to Charge the Effects of the Estate.—An executor has no power to charge the effects of his testator by a contract originating with himself.</p>

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

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this Court at the March term, 1900.</p>

<p>Foreclosure.—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. Slander—Of Credit—Refused to Pay a* Check. —Where a check is drawn by a person in trade in favor of and delivered to a third person who presents the same to the bank upon which it is drawn for payment and is refused payment for want of funds, when there are ample funds in the bank belonging to the drawer of the check and applicable to its payment, such refusal is wrongful, and entitles the drawer of the check to an action for wrongfully slandering his credit in his business.</p> <p>2. Banks and Banking— When a Wrongful Mefusal to Pay a Check is Not a Slander of the Drawer’s Credit.—A refusal by a bank to pay a depositor upon his own demand, can not be said to constitute a publishing of the discredit of the depositor so as to entitle him to an action for slandering his credit. The wrongful act, to sustain an action of this kind, will not exist in the mere fact of the refusal to pay the money to the depositor over the counter of the bank; such action would be a private matter between the bank and the depositor, to which no publicity or injury to the reputation would necessarily attach.</p>

<p>1. Recovery— When to be Siistained Under the Common Counts— Collateral Undertakings.—Where the undertaking sued upon is a collateral promise the declaration must be special; but when it is an original undertaking, a recovery may be had under the common counts.</p> <p>2. Contracts — When the Undertaking is Collateral. — Where another party is primarily liable as principal debtor, and the relations of debtor and creditor remain unchanged, both as to the right and the remedy, and no trust is created by the transaction out of which the promise arises, such promise is in its nature collateral and not original,</p> <p>3. Statute of Frauds— When it May be Relied upon Without Pleading it.—When aparty declares upon the common counts only, and seeks to recover upon a contract which is within the statute of frauds, it is competent to rely upon that statute as a defense without pleading it, and advantage may be taken of it, on the evidence under the general issue.</p>

<p>Action for Rent.—Appeal from the Superior Court of Cook County; the Hon. Elbridge Haneov, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

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

<p>Assumpsit, for money paid, etc. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Fellow-Servants—When Switching Crews Are Not.—Two switching crews in the employ,of different railroad companies, although using the same track for their trains, their duties not being such as to bring them into habitual consociation and so cause them to exercise a mutual influence upon each other promotive of proper caution, are not to he regarded as fellow-servants.</p> <p>2. Same—Who Are, When a Question of Law.—The question as to whether the relation of fellow-servants exists is ordinarily one of fact, but where the facts are not disputed the question may become one of law.</p> <p>3. Employer and Employe— Ordinary Perils of the Service Assumed by the Employe.—An employe of a railroad company when he enters the service assumes the risk of injuries by the ordinary perils of the service in which he is employed.</p> <p>4. Practice—Where the Court is Not Justified in Directing a Verdict for the Defendant.—Where the facts are such that reasonable men of fair intelligence may draw different conclusions the question of negligence must be submitted to the jury.</p>

<p>Claim in Probate.—Error to the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Service of Process—Officer’s Return Prima Facie Evidence Only. —The return of an officer upon a summons of his service, is prima facie evidence only of the service, and such return may be contradicted or overcome by competent evidence to the contrary,</p> <p>2. Same—Judgments by Default in Foreign Courts.—A certified transcript of the judgment record of a Nebraska court showed that the judgment there was obtained by default, and that the court obtained jurisdiction of the defendant by reason of a summons upon which the return of service of the officer is as follows : “I received this writ and on July 81, 1895, I served it by leaving a certified copy of this writ and indorsements thereon at the usual place of residence of the said G. E. N., defendant, in Douglas county, Nebraska.” In the deposition of the officer, which was read at the trial in the court below, he testifled that he served the summons in question “at the usual place of residence,” as he supposed. It appeared from other evidence introduced on the trial that the defendant did not reside at the place named in the return, but at another and different place. It was held that under the statute of Nebraska, requiring that the service of summons shall be by delivering a copy of the summons to the defendant personally or by leaving one at his usual place of residence, the service was not sufficient to give the court jurisdiction.</p> <p>3. Foreign Judgments—Force and Effect to be Given in this State. —Where a suit is brought in this State upon a judgment rendered in another State, such judgment will be given the same force and effect here as it has in the State where rendered.</p>

<p>Mandamus.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Contracts—Where a Written Order for Merchandise is Not.—A written order for the shipment of merchandise at a specified time, upon terms named, delivered to a merchant or his agent, creates in itself no obligation upon such merchant unless he accepts the order without qualification, as the element of mutuality is wanting.</p>

<p>Assumpsit, for commissions, etc.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Courts—Exist for the Disposition of Real Questions.—The discussion of a question which is purely academic and not practical will not be indulged by courts of appeal, as such courts exist for the disposition of real questions and not for mooted ones.</p>