Volume 94 — Illinois Appellate Court Reports

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1900.

Assumpsit, on a contract in writing. Appeal from the Circuit Court of Pike County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the November term, 1900.

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

<p>Creditor’s Bill.—Appeal from the Circuit Court of Pike County; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the November term, 1900.</p>

Assumpsit, to collect an assessment by a mutual insurance company. Error to the Circuit Court of De Witt County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the November term, 1900.

<p>I. Estoppel—Of Parties by Adjudication in Partition Suits.—A party to the record in a partition suit is required to make known to the court all his rights in the premises sought to be partitioned, and have his interest therein protected in the decree of the court; and after having had the opportunity to do so, he is bound by the judgment of the court rendered and will not be permitted afterward, in a collateral proceeding, to make any other or different claim to the premises which existed when the decree was entered, than that given him therein.</p> <p>3. Res Ad judicata—Decrees in Partition Suits.—A decree of a court of competent jurisdiction in a partition suit becomes res adjudicata between the parties, not only as to what was actually determined therein, but it also extends to any other matters properly involved, and which might have been raised and determined in such proceeding.</p> <p>3. Partition Sales—Rights of Purchasers.—A decree in a partition suit does not give the parties a possessory interest in the premises sold beyond the time of the execution and delivery of the master’s deed. The purchaser is entitled to the possession of the premises upon the delivery of the master’s deed, and after a demand in writing of the occupant for the immediate possession and refusal, he is entitled to maintain an action of forcible detainer under the statute.</p>

Action in Case.—¡Loss of live stock shipped by express. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1900.

Assumpsit, upon an order and acceptance. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1900.

<p>1, Verdicts—Province of the Court to Review.—It is always the province of. the Appellate Court upon review of the verdict to decide if it is supported by the weight of the evidence.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the November term, 1900.

Trespass on the Case.—Death from negligence, etc. Appeal from the Circuit Court of De Witt County; the Hon. William G. Cochrane¡ Judge, presiding. Heard in this court at the November term, 1900.

<p>1. Appeals— Where the Validity of a Statute is Involved.—Where a trial court, in deciding a demurrer to special pleas, must necessarily hold a statute invalid, the question of the validity of such statute is involved and the appeal must be taken to the Supreme Court.</p>

<p>1. Parties—In Proceedings by Mandamus Against Cities.—Where mandamus proceedings are resorted to, to compel the passage of a city ordinance in performance of a duty imposed by law, it is only necessary to make the city a party defendant; but when the writ issues it should be against the individual members of the city council.</p>

<p>1. Parties—hi Mandamus Proceedings Against Cities.—Where the object of a writ of mandamus is to compel the passage of an ordinance in the performance.of a duty, it is not necessary to make the individual members of the city council parties to the petition.</p>

<p>1. Bailroad Companies—Liability for Medical Services in Cases of Accidents.—When an accident happens to an employe of a railroad company, where the local surgeons of the company are not in the vicinity, and the condition of the injured person requires prompt medical attention, the representatives of the company in authority at the time and place of the accident will have the right to employ medical assistance and render the company liable to pay for the services.</p>

<p>1. Services—By One in the Family of a Relative.—Where one enters the family of a relative and is trusted as a member of the family, the relationship between the parties is so intimate that the law does not imply a contract requiring the one to pay money for support or the other to pay for services rendered.</p>

Trespass on the Case.—Death from negligence, etc. Appeal from the Circuit Court of Coles County: the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the November term, 1900.

Assumpsit, for alleged breach of a written contract. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1900. Statement.—Appellant sued appellee upon a written contract for failure to deliver tin cans according to the alleged terms thereof.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1900. Statement.—Appellee sued appellant in an action on the case for injuries to his foot, alleged to have been occasioned by the negligence of appellant.

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

Trespass on the Case, under the miners act. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1900.

<p>Trespass on the Case.—Death from negligence. Appeal from the ■Circuit Court of Christian County; the Hon. William M. Farmer, Judge, presiding. Heard in this court at the November term, 1900,</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1900.

<p>1. Notice—What is Sufficient as to Transfers of Personal Chattels. —Where the interest of a debtor in a personal chattel is transferred to his creditor by an agreement of settlement, publicly made, and the custody of such chattel is by such agreement to remain in a third person as the property of the creditor, and the debtor not to be permitted by such third person to use it, it was held to be such an open and notorious transfer of the possession of the chattel to the creditor as in law would be notice to third persons that such title and possession was transferred to the creditor.</p>

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

<p>1. Mechanics’ Liens—Improvements by Tenants.—The statute authorizing mechanics’ liens does not permit a lien to attach to lands in the possession of tenants under a lease for improvements made by such tenants unless the owner has authorized or knowingly permitted such improvements. To knowingly permit improvements on property, in the sense of the statute, is, as applied to this case, something more than to have knowledge that the work is being done and not refrain from forbidding or protesting against its being done.</p>

<p>1. Res Ad judicata—Appellate Court Decisions—Second Appeal— When a case comes to the Appellate Court on a second appeal, from a judgment entered on the same evidence contained in the record on the former appeal, the decision on the first appeal is conclusive of the law of the case.</p>

<p>Petition to Satisfy a Judgment.—Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. ' Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>Assumpsit, on a policy of life insurance. Appeal from Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heai'd in the Branch Appellate Court at the March term, 1900.</p>

<p>Trespass on the Case.—Appeal from the Superior Court of Cook. County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

Action to Recover Damages for the elevation of a road-bed.—Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900,

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

<p>1. Written Instruments—Not tobe Contradicted by Parol Evidence. —A written instrument can not be contradicted by evidence of a parol agreement tending to show that the parties intended a different contract than that implied by the law from their acts.</p> <p>2. Bills of Exchange— When the Draioer Can Not Contradict His Act by Parol Evidence.—A person who draws a bill of exchange assumes the legal obligations incident to his act, and he can not be allowed afterward to contradict it by parol evidence and say there was a verbal agreement made at the same time to the effect that he should not be so bound.</p>

Trespass on the Case, for personal injuries. 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. Statement.—Appellee sued for personal injury, and recovered a verdict and judgment, from which this appeal is prosecuted.

<p>1. Malpractice—Inability of Physicians.—A physician who has given a patient the benefit of his best judgment, is not liable for negligence, even if his judgment is erroneous, unless the error is so gross as to be inconsistent with reasonable and ordinary skill and care.</p> <p>2. Same—Duty of Physicians.—It is the duty oi physicians and surgeons to exercise reasonable and ordinary care, skill and diligence in the practice of their professions. To this extent they are liable and no further. They are not required to possess the highest, but reasonable skill only.</p> <p>3. Same—Burden of Proof.—The burden of proof is upon the plaintiff in an action for malpractice to show the want of such skill, care and diligence, and also to show that the injury complained of resulted from a failure to exercise these requisites.</p> <p>4. Same—When the Want of Ordinary Care Can Not be,Imputed to a Physician.—It can not be said as a matter of law, where a physician recommends a method of treatment recognized and approved by the standard authorities upon medicine and surgery as appropriate to a case in hand, and consults another physician or surgeon who has had experience in the use of such method, who, after examination of the patient, concurs in his judgment, and the patient submits to the treatment upon such advice, that the physician has failed to exercise ordinary skill, care or diligence in making such recommendation, and if he has not so failed he is not liable.</p> <p>o. Same—Physicians and Surgeons Not Insurers.—Physicians and surgeons are not insurers of successful result of a medical treatment or surgical operation.</p> <p>6. Limitations—What is to be Regarded as the Oonvmeneement of a Suit.—A suit for malpractice was begun in the Superior Court of Cook County on May 15,1898. The summons was taken out but was not put into the hands of the sheriff, nor was the declaration filed until January 9th following. The surgical operation complained of was performed on December 15, 1896. An alias summons, which was the one served on the defendant, was not issued, nor was the declaration filed until after the bar of the statute of limitations had arisen; but on the authority of Schroeder v. The M. & M. Ins. Co., 104 Ill. 71, held that the suit was begun by the issuing of the first summons.</p>

<p>Assumpsit, on a policy of life insurance. Appeal from the Circuit Court of Cook County; the Hon. Samuel C. Stouqh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Beneficiary Associations—Waiver of Forfeitures.—Under the by-laws of the appellant in this case, this court holds that the right of forfeiture of the member’s certificate for the non-payment of dues was waived.</p>

<p>1. Equity—Power to Set Aside a Judgment of Dismissal.—Where a cause was placed upon the trial calendar of a trial judge who died before it was reached for trial, and another judge took up the calendar, and, in ignorance of the fact that such cause had been set down for trial, included it in a second preliminary call, contrary to the established and uniform practice of the court, of which neither the plaintiff nor his attorneys, although awaiting its appearance upon the trial calendar, had notice, and upon which second irregular call it was dismissed, which dismissal was not discovered until after the end of the term, held, that a court of equity had full power and jurisdiction to set aside the judgment of dismissal and give the appropriate relief in the premises.</p> <p>2. Same—Power to Decree New Trials.—Courts of equity have jurisdiction to decree new trials at law where judgments have been obtained by fraud, accident or mistake.</p> <p>3. Same—Power to Correct Mistakes in Judgments—Competency of Oral Testimony.—Where the clerk of a court of record makes an erroneous entry in the record of a judgment at law, oral testimony is competent in a court of equity to show that the entry was incorrect in fact, or, in other words, a mistake in fact, and the court has jurisdiction to set aside such judgment; such mistakes may be shown by any competent evidence, oral or documentary, as the other cases.</p>

<p>Action on the Case, for libel. Appeal from . the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1900.</p> <p>Statement.—This action is on the case for libel. Appellees, in response to a rule of the Superior Court of Cook County requiring them to show cause why they should not be adjudged in contempt of said court, filed a written answer to the rule, a part of which constitutes the alleged libel sued upon. The part in question, as set up by the declaration of appellant, with appropriate innuendo, is as follows:</p> <p>“ J. W. Burdette (meaning plaintiff) executed and filed a criminal complaint before James C. Martin, a justice of the peace and police magistrate in Cook county, Illinois; that the said J. W. Burdette (meaning plaintiff) swore to said complaint; that the matters stated in said complaint are absolutely false and untrue, and were known so to be by the said J. W. Burdette (meaning plaintiff) at the time he (meaning plaintiff) made oath to the same.”</p> <p>To appellant’s declaration, alleging inter alia the above matters as a publication constituting libel, the appellees pleaded the general issue: the truth of the alleged libel, as justification; that the writing was a privileged statement, in that it was published in -pleadings in a judicial proceeding, and a further plea that it was published in judicial proceedings, and that defendants believed it to be pertinent thereto. Issue having been joined upon these pleas, the cause proceeded to a trial.</p> <p>Upon the trial appellant presented evidence to sustain his declaration. It appeared that the publication in question was a part of a pleading in a judicial procedure, i. e., it was part of an answer to a rule upon defendants to show cause why they should not be adjudged to be in contempt of the court. It also appeared that the court where the contempt proceedings were had, upon the motion of appellant, ordered the portion of the answer which is here in question to be stricken from the answer as impertinent matter. There was evidence showing controversies between appellant and appellees arising in the course of their business affairs, out of which the litigation arose which resulted in the publication of the alleged libel.</p> <p>At the conclusion of the evidence offered by the plaintiff below, appellant here, the trial court peremptorily directed a verdict to be returned finding appellees not guilty.</p> <p>From judgment on that verdict this appeal is prosecuted.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the October term, 1900.</p>

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

Trespass on tile Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1900. Statement.—Defendant in error ivas plaintiff and plaintiff in error defendant in the trial court. About September 3, 1898, plaintiff was employed by defendant to fire and wipe engines in defendant’s power house.

<p>1. Evidence— Unexecuted Lease Admissible as a Part of the Bes Gestee.—In an action for rent by a lessor against a lessee holding over, a lease prepared during negotiations between the parties for a new letting of the premises, but not executed, is admissible in evidence upon the question of the amount of the rent as a part of the res gestee.</p> <p>2. Practice—Where a Case Should be Submitted to the Jury,— When the evidence presents the question as to whether a tenancy was created for a year or from month to month, it should be submitted to the jury.</p> <p>3. Estoppel—Acceptance of Checks—Landlord and Tenant.—The fact that a tenant, holding over, paid his rent monthly by checks, stating on their face that they were for the rent in full for the respective months during which the payment was made, does not estop the lessor from denying that an offer of the lessee pending a negotiation for a new lease was accepted.</p> <p>4. Landlord and Tenant—EJisct of Acceptance of Less Bent Than the Amount Due.—An acceptance by a landlord of a sum less than the amount of rent due, in satisfaction, is, in law, a discharge only of that much of the rent, and an agreement to take a less sum in such satisfaction is void for want of a consideration.</p>

<p>1. Witnesses—May Give Seasons for Estimate of Values of Seal Property.—In an action for damages to real property by the construction of a viaduct, where witnesses have testified to the value of the property before the construction of the viaduct they may properly give their reasons for their testimony.</p> <p>2. Same—Proper to Give the Elements Which Enter into Their Opinion that the Proprety was Damaged.—Where witnesses have testified that real property was damaged by the construction of a viaduct it is proper for them to state the elements which enter into their opinions as to the property being damaged.</p> <p>3. Expert Testimony— Upon What Its Weight and Value Depends. —The weight and value of the testimony of expert witnesses depends largely upon the foundations of fact and of reason upon which their opinions stand.</p> <p>4. Evidence— View of the Premises try the Jury.—In actions for damages to real property by the construction of viaducts, it is within the power of the court to permit the jury to view the premises if, in the exercise of a sound discretion, it is considered necessary, to enable them the better to understand and apply the evidence. But such view, or the facts ascertained bjr the jury upon it, can not of itself be considered as evidence in arriving at the verdict. The rule is not the same as in condemnation cases, where the statute provides for such views.</p> <p>5. Instructions—Estimating Damages upon the Highest and Best Uses to which the Property Can he Put.—In actions for damages to real property by the construction of a viaduct, an instruction that the jury, in estimating the damages, should do so upon the highest and best uses to which the property was reasonably susceptible as shown by the evidence, is erroneous.</p>

<p>1. Railroads—Duty to Employes in Furnishing Appliances.—A railroad company is obligated by its duty to employes to exercise reasonable care in the furnishing to them of appliances for their use; and this rule applies as well to cars and appliances not owned by it but received from connecting lines.</p> <p>2. Same—Duty of Inspecting Gars Coming into its Possession from Connecting Dines.—It is the duty of a railroad company to provide some method of inspection of cars and their appliances coming into its possession from connecting lines.</p> <p>3. Sam—Not Liable for Injuries to an Employe Caused by His Failure to do His Duty in Inspecting Appliances.—When it is made the duty of an employe to examine the couplings, wheels, journals, etc., and brakes of cars in his train, and he fails to perform that duty, he can not by his failure impose a liability upon his employer for injuries to himself.</p> <p>4. Sam—When Notice of Defective Appliances Must Be Shown.— Where the evidence of notice relied upon to charge a railroad company with negligence in failing to inspect cars received from a connecting line, is the uncertain identity of an unknown car-repairer, a verdict of guilty can not be sustained.</p> <p>5. Same—Negligence of Connecting lines. —The duty of a railroad company to inspect cars coming from a connecting line is to be measured by what it ought to have done while the cars were in its possession and not before. The negligence of the connecting line before the delivery of the cars can not be irhputed to it.</p> <p>6. Master and Servant—Comparative Duties of Inspection of Appliances.—Where the duty to inspect appliances is delegated by the master to the servant as a part of his service, bis duty is greater by reason of such delegation than the duty resting upon him as a matter of care for his own personal safety.</p>

Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1900.

Attachment.—Error to the Circuit Court of Cook County; the Hon. Elbridge Hajíecy, Judge, presiding. Heard in this court at the October term, 1900. Statement.—Defendant in error was plaintiff and plaintiff in error defendant in the trial court. The suit was by attachment, the ground for attachment being, as alleged in the affidavit, that the defendant was not a resident of this State, but resided in Detroit in the State of Michigan.

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 October term, 1900. Statement.—-The particulars of the controversies in this cause and the pleadings are presented in the statement of facts in the decision of Christie-Street Commission Company v. Board of Trade, 92 Ill. App. 604.

<p>1. Constables—When an Action for Failing to Take a Sufficient Bond in Replevin Accrues.—The cause of action upon the official bond of a constable for a failure to take a sufficient bond in a replevin suit accrues when the suit is ended and a retomo is awarded.</p> <p>3. Damages—For Taking and Detaining Property in Replevin.— Where property, taken in replevin, is returned in obedience to the order of the court directing such return, and has not in the mean time decreased in value, it can not be said that there has been any damage unless for a deprivation of its use, or the right to dispose of it during the time it has been held. ’</p> <p>3. Same—For Failing to Take a Sufficient Bond—Not Confined to the Amount Stated in the Affidavit.—In an action upon the official bond of a constable for a failure to take a sufficient replevin bond, the measure of damages is the injury suffered by the defendant in the replevin, and is not necessarily confined to the value of the property as stated in the affidavit.</p> <p>4. Evidence—Affidavit in Replevin, When Competent.—An affidavit made by a plaintiff in a replevin suit is competent evidence against him in a suit upon the bond, and he is estopped to deny that the property replevied was of less value than that stated in his affidavit.</p>

Assumpsit.—Error to the Circuit Court, of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1900. Statement.—Defendant in error was plaintiff and plaintiff in error was defendant in the trial court. The action was assumpsit and the declaration consisted of three special counts on three promissory notes made by the defendant payable to the plaintiff’s order, and the common counts.

Trespass, for an assault and battery. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1900.

Assumpsit.—Error to the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1900. Statement.—This suit was originally begun by defendant in error against a defendant known as St. Hicholaus TJnterstuetzungs Verein, and afterward, by leave of court, the plaintiff in error was made a co-defendant. The record shows that both defendants appeared and demurred to the defendant in error’s narr.

Bill to Have a Written Contract Declared a Mortgage, and for a right to redeem. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1900.

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 October term, 1900.

Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1900. Statement.—This suit was brought by defendant in error for the use of B. J. Kriz, to recover damages alleged to have resulted from negligence of plaintiff in error.

Bill of Discofery in aid of a suit at law for the recovery of money lost at gambling. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1900.

<p>1, Contempt of Court—Requisites of the Order—An order in a proceeding for contempt of court imposing a fine and imprisonment is not necessarily void because it fails to provide to whom the fine shall be paid.</p> <p>2. Same—Answer of Defendant May Be Contradicted.—In a proceeding for contempt of court in a chancery suit, the answer of the defendant may be contradicted and disproved by the adverse party, but a different rule prevails in proceedings for contempt of court in suits at law.</p> <p>3. Same—Punishment, When Not Excessive. —Where a receiver of a court, necessarily trusted and relied upon, was found guilty of permitting merchandise, placed in his hands as such receiver, to be clandestinely taken and carried away by his employes for the purpose of defrauding the estate and its creditors, a fine of $300 and imprisonment four-months in the county jail was held not to be excessive.</p>

Bill of Foreclosure.—Error to the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1900. Statement.—Defendant in error filed his bill of complaint against plaintiff in error and others to foreclose a trust deed upon real property in Cook county. The defendants, including plaintiff in error, were all defaulted and the bill was taken pro oonfesso.

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1600.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. John C. Carver, Judge, presiding. Heard in this court at the October term, 1900.</p> <p>This suit was brought by plaintiff in error to recover for personal injuries sustained, as it is alleged, through negligence of defendant in error.</p> <p>Plaintiff in error was employed by defendant in error to work upon its streets. At the time in question he was engaged, under direction of a foreman, in cleaning a street which had been flooded with water. The water and dirt of the street made a mud, which plaintiff in error, by order of the foreman, was scraping up with a hoe. In so doing he was obliged to move backward, drawing the mud toward him from in front of him. While so at work the foreman removed a cover to a catch-basin in the street and left the hole uncovered in the locality over which plaintiff in error Was to work, and this without any warning to plaintiff in error. Plaintiff in error proceeded in his work, moving backward, until he came to the open catch-basin, into which he fell. By reason of the fall he sustained injury.</p> <p>The foregoing facts were made to appear from the evidence presented by plaintiff in error. At the conclusion of the evidence of plaintiff in error, the court peremptorily directed a verdict for defendant in error. From judgment thereon this appeal is prosecuted.</p>

Bill for Relief.—Appeal from the Circuit Court of Cook County; the H n. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Rehearing denied,

<p>1. Instructions—As to Corrupt Motives of Witnesses.—It is the corrupt motives of a witness in giving of false testimony, knowing it to be false, which authorizes a court to instruct a jury to disregard his testimony.</p> <p>2. Special Interrogatories—Calling for Evidentiary Facts.—A question which is entitled to be submitted to the jury for their special finding is one which, if found, must be controlling. A fact which merely tends to prove a matter in issue, without actually proving it, can not be said to be, in any legal sense, inconsistent with the general verdict, whatever that fact may be.</p>

<p>Action for Loss of Baggage.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

Replevin, for goods taken under an execution. 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, 1901.

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

<p>1. Instructions—Reference to the Amount of the Ad Damnum.— Reference in an instruction to the amount claimed in the declaration by stating that if the jury find the defendant guilty, damages can not be assessed beyond the amount of the ad damnum, is not to be commended, but does not, necessarily, constitute reversible error.</p> <p>2. Appellate Court Practice—Questions of Excessive Verdicts Must he Raised in the Court Below.—Where the objection that the amount of the verdict is excessive is not included in a motion for a new trial in the court below, it is too late to raise the question in the Appellate Court.</p>

<p>Mechanic’s Lien.—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

<p>Action for Injuries to Domestic Animals.—Appeal from the Superior-Court of Cook County: the Hon. Axel Chytbaus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

<p>1. Sales—Bona Fide Purchasers Without Notice.—Where a vendor sells property and delivers it to the vendee, upon his agreement to give a note for it at a future day with security, a sale of it by such vendee to another party, without knowledge of such arrangement, will pass the title to the latter, and he will hold the.property as against the first vendor..</p>

<p>Assumpsit, for a breach of contract. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

<p>1. Personal Injuries—Effect of Admitting the Payment of Wages. —In an action for damages resulting from personal injuries, where it appears from the admission of the plaintiff that she had been paid her wages, during the time she lost her employment because of her injuries, further inquiry as to her loss of wages as an element of damages is at an end.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

<p>1. Verdicts—When it is Error to Direct.—When the evidence raises a distinct question of fact which is the province of the jury to determine it is error to take the case from them by directing a verdict.</p>

<p>1. Jurors—Effect of Their' Presence in Court During a Tidal in Which the Jury Disagrees and Called for Retrial Immediately Afterward.—Where jurors in attendance upon court are sitting in the courtroom during the trial of a case in which the jury disagrees, and are called into the box to' serve in the same case called for trial immediately after such disagreement, the interests of impartiality by the jury and a fair trial would be better served by the exclusion of all of them.</p> <p>2. Instructions—Shifting the Burden of Proof.— An instruction which, in effect, has a tendency to tell the jury that the plaintiff must not only show by a preponderance of the evidence the issues presented by him, but must also disprove those presented by the defendant, is materially erroneous.</p>

<p>Garnishment.—Appeal from the Superior Court of Cook County; the Hon. Philip Stein. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

<p>Trespass on the Case.—Death from negligence. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901. Rehearing denied.</p>

Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Burke, Judge, presiding. Heard in this court at the March term, 1901. Statement.—This is an appeal from an interlocutory order granting a temporary injunction on a verified bill filed by appellee against appellant and others, officers of the town of Lake, in Cook county.

Foreclosure.—Error to the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge. presiding. Heard in this court at the October term, 1900.

Assumpsit, for a reward for the arrest and conviction of a criminal. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1900. Statement.—Plaintiff in error brought this suit in assumpsit to recover the amount of a reward offered by the defendant in error for the arrest and conviction of the murderer or murderers of one O. B. Birch. The published offer was in the terms following : “$5,000 ¡Neward.

Bill for Belief.—Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1900. Rehearing denied.

Trespass on the Case, for personal injuries. Error to the Superior Court of Cook County: the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1900. Statement by the Court.—Plaintiff in error was injured January 16,1S97, while in the employ of defendant in error as a laborer at its steel works, by having his hand caught in a rope vffiich revolved on a cylinder or spool, necessitating its amputation.

<p>1. Practice—Placing Causes on the Short Cause Calendar.—It is error to place a case on the short cause calendar upon the filing of a mere copy of an affidavit. The statute requires the filing of an affidavit, not a copy.</p>

Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1900.

<p>1. Practice—Motions to Set Aside Defaults Addressed to the Discretion of the Court.—A motion to set- aside a judgment by default is addressed to the sound legal discretion of the trial court, and a court of review will not disturb a judgment entered in the exercise of such discretion, unless it appears to have been wrongfully and oppressively exercised.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Elbridgb Hanecy, Judge, presiding.Heard in this court at the October term, 1900'. Statement.—Appellee was employed by the J. L. Fulton Co. as a laborer in the work of constructing a wall for the appellant company, with which the Fulton Company had a contract.

<p>1. Res Adjudicata—Former Appeals.—Where a case between the same parties has been decided in this court on a former appeal, the court can take judicial notice of the record in the former appeal and if the facts in the former trial were the same as on the second trial which resulted in the judgment from which the latter appeal is taken, this court is concluded by the adjudication in the former appeal.</p>

<p>Action of Covenant,—Appeal from the Circuit Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the October term, 1900.</p>

<p>!• Divorce—Modification of Decrees for Alimony After the Term. —Where, in a decree for divorce, the wife is given a sum in gross, for alimony, it is to be held in full discharge and satisfaction of all claims for future support, and so far as the decree relates to that subject, it is at an end, and the court lias no jurisdiction to modify it at a subsequent term.</p>

<p>1. Sales—Of Chattels by One in Possession—Implied Warranty.— The general .rule is that the selling of chattels by one in possession is an affirmation of title and an implied warranty arises from the sale.</p> <p>2. Same—By Agents—Implied Warranties.—Where a vendor in making a sale is acting merely as an agent and this fact is known to the purchaser at the time, the principal alone will be held upon the implied warranty of title and the agent will not be liable; and this will be so whether the fact that the agent was acting for a known principal was disclosed by the agent himself or was otherwise brought to the knowledge of the purchasers.</p> <p>3. Agents—When Personally Liable.—Where a vendee knows that the vendor is a broker, and although there is reason to believe he is selling property for some principal, yet if he does not see fit to bind his principal by the form of the contract made, by contracting in his own name, he may become liable as a vendor.</p> <p>4. Same—The Rule in Verbal Contracts, When the Agent Binds Himself.—It is a settled rule in verbal contracts, if an agent does not disclose his agency and name his principal, he binds himself and becomes subject to all the liabilities, expressed and implied, created by the contract and transaction in the same manner as if he were principal in interest.</p> <p>5. Notice—When, the Mere Fact that a Person is an Agent is Not Notice that He is Not Selling His Own Goods.—The mere fact that a person is an auctioneer is not sufficient notice to purchasers that he is not selling his own goods.</p> <p>6. Presumptions—As to the Existence of the Common Law.—Where the law of the place of the contract is not in evidence the presumption is that the common law prevails at such place as interpreted by the courts of this State.</p> <p>7. Elements of Damages—Costs in Defending Title After Notice.— Failure of Title.—Where a purchaser of personal property is made defendant in a replevin suit for the recovery of such property and serves a notice upon his vendor to defend the title, such notice may be regarded as concluding the defendant as to the fees and costs paid in defending the title.</p>

<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 the Branch Appellate Court at the March term, 1900.</p>

<p>1. Contracts—With a Person to Testify, Not Necessarily Illegal.— A contract with a person to perform services of various kinds in a condemnation suit, such as investigating values of the land to be taken, and the effect of such taking upon what remained, consulting with counsel, examining plats of the route, as well as to testify in the case as witness, is not necessarily an illegal contract or one tending to corrupt practices.</p>

<p>1. Trials—Improper Conduct of Counsel.—Questions by counsel for the plaintiff upon cross-examination of a defendant, apparently for the purpose of showing that some of the defendants were wealthy, are clearly improper; but where there is no reason to believe that the verdict was in. any way influenced by such questions they are not reversible error.</p>

<p>1. Trials—Findings of the Trial Judge.—In a case of conflicting evidence, and correct propositions of law being held, the finding of the trial judge is of much the same effect upon a reviewing court as the verdict of a jury under proper instructions.</p>

<p>1. Presumptions—Where the Bill of Exceptions Does Not Shoio that it Contains All the Evidence. —Where the bill of exceptions does not show that it contains ail the evidence introduced on the trial, it will be presumed that there was before the trial court all the evidence necessary to justify the judgment rendered.</p>

Trespass on the Case.—Damages from the operation of an electric light plant. Appeal from the Superior Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.

Trespass oil the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.

<p>1. Contracts—With Agents, Suits with the Principal—Defenses.— Where a third person, who has entered into a contract with an agent in ignorance of the fact that he was not the real principal as he assumed to be, is sued upon the contract by the real principal, he may avail himself, as against such principal, of every defense which existed in his favor against the agent at the time the principal first interposed and demanded performance of the contract to himself.</p>

<p>1. Practice—Causes on the Short Cause Calendar—Discretion.— When the trial of a cause on the short cause calendar occupies more than an hour, to which such cases are entitled, it is within the discretion of the court to stop the trial or allow it to proceed.</p> <p>2. Same—Correction of Verdicts.—Where a verdict returned into court is not in the form as intended by the jury, the court may upon its own motion direct the jury to again retire for the purpose of correcting the same so as to properly give expression to their intention.</p>

<p>1. Presumptions— Where the Bill of Exceptions Does Not Contain All the Evidence.—It must be presumed when the bill of exceptions does not purport to contain all the evidence that there was other evidence before the trial court to justify the finding.</p>

<p>1. Practice—Proofs in Suits upon Official Bonds.—In an action of debt upon a receiver's bond under a plea of non est factum, not sworn to, no proof is necessary except the bond itself and proof of payment of the costs in order to sustain the allegations of the declaration.</p> <p>2. Same—Questions of Excessive Damages.— Where the point of excessive damages is not made upon the motion for a new trial, it can not be made in the Appellate Court.</p>

<p>1. Garnishment—When the Suit Fails.—When the original suit upon which a proceeding to garnishment is founded fails, the garnishee proceeding fails with it.</p>

<p>1. Waiver—Of Affidavit in Mandamus Proceedings.—The objection that an affidavit in a mandamus proceeding is insufficient, is waived if not raised in the trial court.</p> <p>S. Same—Failure to Assign Insufficiency for Error.—The .defective verification of an affidavit in a mandamus proceeding is waived by a failure to assign the same for error in the Appellate Court.</p>

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Practice— Object of a Bill of Exceptions.—The object of a hill of exceptions is to preserve in the record such matters as occur during the trial which are not a part of the record without it.</p> <p>3. Record—What it Includes in a Suit at Law.—The record proper in a suit at law includes the declaration, pleas, demurrer, if any, judgment upon it, or other judgment interlocutory or filial.</p> <p>3. Exceptions—When Unnecessary. —It is not necessary to except to a judgment upon a demurrer to enable the party aggrieved to have the decision reviewed by the Appellate Court.</p> <p>4. Appellate-Court Practice— Waiver of a Demurrer.—A defendant filed two special pleas, to each of which a general demurrer was sustained, and leave given to file additional pleas; in pursuance he filed one additional plea, which was substantially a repetition of the first original plea, and to which a demurrer was again sustained. Held, that there had been no pleading over as to second original plea, and the question as lo whether the trial court erred in sustaining the demurrer to such second original plea was properly before the Appellate Court.</p>

<p>Distress for Rent.—Appeal from the Circuit Court of Cook County; the Hon. Ekbridge Haneoy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900. Mr. Justice Shepard dissenting.</p>

<p>1. Pledges—0/ Property as Security for a Certain Bebí.—Personal property pledged specifically as security for a certain debt can not be held as security for other debts of the pledgor subsequently contracted without an agreement to that effect.</p>

Assumpsit, for merchandise sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the October term, 1900. Statement.—Appellee brought this suit to recover from appellant the value of a set of the first edition of the American and English Encyclopaedia of Law.

Trespass on the Case.—Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the October term, 1900. Statement.—At the September term, 1892, of the Superior Court of Cook County, D. Davis recovered judgment against Bose Morris and D. Harris for the sum of §2,716.98 and §6 costs, and September 17, 1892, an execution was issued on said judgment and delivered to the sheriff.

Trespass on the Case.—Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1900. Statement by the Court.—Lawrence Collins, an employe of appellant, defendant below, a contractor engaged in the construction of a building in St. Paul, Minnesota, was killed in July, 1896, while in the performance of his duty as such employe.

Assumpsit, for money paid as illegal taxes. Appeal from the Circuit Court of Cook County; the Hon. John C. Carver, Judge, presiding. Heard in this court at the October term, 1900. Statement.—Appellee brought this suit in assumpsit to recover amounts paid for brewery licenses under an ordinance which was invalid. The declaration consisted of the common counts.

Bill of Interpleader.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1900. Statement.—This is the second appeal of this cause, the first appeal having been by the present appellee. On that appeal we reversed and remanded the cause.

Trespass on the Case, for injuries resulting from the use of dangerous explosives. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1900. This suit was brought by appellee to recover for damages to a brick building caused, as is alleged, by underground blasting done by appellant in the constructing of a tunnel, under contract with the city of Chicago.

Replevin.—Appeal from the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1900. Statement by tbe Court.—Appellant, plaintiff below, began replevin in the Superior Court of Cook County against appellees, defendants below, to recover the possession of certain lumber, a part of which was recovered upon the writ and turned over to the plaintiff.

Assumpsit, on a joint guaranty. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1900. Statement.—Appellee sued the appellant and Patrick McMahon jointly, in an action of assumpsit, on their joint guaranty. Both defendants were served with process and appeared.

<p>1. Appeals—W/zere the Party Apvealing Can Not Be Heard to Say the Court Has No Jurisdiction,—Where one of several defendants in an action of forcible detainer before a justice of the peace took an appeal to the Circuit Court and filed his bond and a transcript from the justice with the clerk of that court, on December 6, 1899, he gave the court jurisdiction, and the complaint which was filed with the justice, and on which the summons was issued, being before the Circuit Court on the day of the trial, April 23, 1900, the appearance of the appellee having been filed December 8, 1899, such defendant so appealing can not be heard to say that the Circuit Court had no jurisdiction to try the cause, because there was no complaint in writing filed with the clerk of the Circuit Court ten days before the term at which the judgment was rendered, and because the original summons was not returned by the justice to the clerk of the Circuit Court.</p> <p>2. Same—Effect of Filing an Appeal Bond—Waiver.—The filing of an appeal bond by a defendant in the Circuit Court from a justice’s judgment waives all defects in the process, precludes his taking any exceptions to any proceedings before the justice, and he can not afterward question the mode by which he was brought into court.</p> <p>3. Same—What Confers Jurisdiction on the Court to Which the Appeal is Taken.—Where the appeal bond, justice’s transcript and appearance of the appellee are filed and entered more than ten days before the trial term, and a complaint which is regular in form having been filed with the justice, on which the summons was issued and served, jurisdiction not only of the parties but of the subject-matter is conferred upon the court to which the appeal is taken.</p> <p>4. Same—Effect of a Trial as to One of Several Defendants Appealing.—Where one of several defendants in an action of forcible detainer before a justice of the peace takes an appeal, the trial of the case in the court to which the appeal is taken as to such defendant is virtually a dismissal as to the others.</p> <p>5. Appellate Court Practice—Errors Must Appear in the Abstract. —Where a party appealing claims an insufficiency in the evidence to support the finding, but fails to show the same by his abstract, the Appellate Court will not search the record for the purpose of detecting the alleged deficiency.</p>

Action Ex Delicti!, for dismissing a proceeding for collecting a special assessment, etc. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at 'the October term, 1900. Statement.—Appellee sued appellant in case.

Quo Warranto.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1900.

Assumpsit, for a breach of a contract of sale. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1900. Statement.—This suit was brought by appellee to recover from appellant damages for breach of a contract of sale. The following letters were written by the parties and were offered in evidence. Letter from appellant to appellee: “ North-Western Iron & Metal Co. Chicago, Apr. 10th, 1899.

<p>1. Chancery Practice—Evidence to Support the Decree Must he Preserved.—It is the duty of the party in whose favor a decree granting" relief is rendered, to preserve the evidence upon which it is granted, or the decree must find the specific facts proved at the hearing. It is not the duty of the party against whom such decree is rendered to preserve the evidence.</p> <p>2. Same—An Exception to the Rule.—It is not necessary to preserve the evidence in the record to sustain a decree dismissing a bill for want of equity, because that is the decree which the court is bound to render in case of a total failure of evidence or when the evidence is insufficient to authorize the relief asked for. .</p>

Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Axel Chytbaus, Judge, presiding. Heard in this court at the October term, 1900. Statement.—This suit was brought by appellee against appellant to recover the amount due upon a promissory note made by S. W. Chapman as principal maker and by appellant as guarantor.

<p>1. Construction op Contracts— Contract of Settlement—Release of Outside Indebtedness Rot Included.—B. and L. entered into a contract by which B. sold certain shares of stock to L., who agreed to pay for the same in weekly installments. Some years-afterward, the installments having been paid in full so far as they had matured, B. requested L. to loan him §1,000, which was done, and for which B. gave him his note. L. continued to pay the installments on his contract for several years, and then, having paid over §14,000, leaving about §43,000 not then due, he and B. made an agreement of settlement in writing by which B. took back the stock and released L. from further obligation under the contract, which was annulled and canceled by mutual consent. In the contract of settlement it was agreed “that from and after this date no indebtedness exists in favor of either of said parties L. or B. against the other.” In construing the agreement of settlement the court held that the §1,000 note was not included in and was not discharged or canceled by the agreement.</p>

Assumpsit, for merchandise sold, etc. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900. Remittitur suggested. If entered according to the suggestion the judgment will be affirmed for the remainder.

<p>Contempt.—Violation of an injunction. Appeals from the Superior Court of Cook County; the Hon. Jesse Holdoji, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Contempt—Civil and Criminal, Distinguished.—Contempt proceedings are of two kinds : civil, or remedial, when instituted for the purpose of affording relief between parties to a cause in chancery; and criminal in their nature, when having for their object the punishment of an offense against the authority and dignity of the court.</p> <p>3. Same— Violation of Injunctions.—When a contempt for the violation of an injunction is criminal in its nature, it is unimportant whether injury to the complainant is shown by the violation of the injunction or not.</p>

<p>1. Fraud and Deceit—In the Collection of Promissory Notes.—A person who receives for collection a promissory note, stands in a fiduciary capacity toward the owner of such note. The law imposes upon him the highest measure of fidelity, and he is not entitled to profit himself by deceiving the owner as to the value of the note or the amounts collected upon it by him.</p>

<p>Assumpsit, on a contract of employment. Appeal from the Superior Court of Cook County; the Hon. Farlin Q." Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Remittitur—Power of the Court to Order in Case of Excessive Verdicts.—Where a verdict is plainly warranted to a partial extent by the evidence, but is not as to its whole amount, the practice of allowing a remittitur to cure the excess is commendable where no substantial error has occurred in the trial, and a hardship would be visited upon the appellee by remanding the cause for another trial and the long delay attendant upon it.</p>

<p>Í. Appellate Court Practice—When There Are No Questions to he Considered.—When a case is submitted to a trial court for its determination without a jury and no propositions of law are presented to the trial judge to be by him held, there are no questions of law to be considered by the Appellate Court, unless it be such as the admissibility or rejection of evidence, etc.</p> <p>2. Same—Effect of the Finding of the Trial Court.—AVhere a case is submitted to a court for hearing and the testimony is conflicting and no propositions of law are presented to be held, the finding of the court has the same effect upon a reviewing court that the verdict of a jury under proper instructions has.</p> <p>3. Damages—Duty of Parties to Use Reasonable Efforts to Prevent —Landlord and Tenant.—As a general rule a person can not sustain a claim for damages which he might, by reasonable efforts, have prevented; so where a tenant occupies premises which are so situated that they may be heated without interfering with the rights of other persons, and the landlord is bound to heat the same, but fails to do so, the tenant may cause the heating to be clone and recover from the landlord all expenses necessarily incurred by him in so doing. But he can not refuse or voluntarily neglect to prevent the injury arising from the premises not being heated, and then recover from his landlord damages for such injuries.</p>

<p>1. Factors—Duty to Sell Property to Responsible Parties.—-It is the duty of a factor to exercise reasonable care and prudence in selling property to responsible parties, and if he neglects his duty in this respect, lie will be liable for losses which result.</p> <p>3. Same—Duty in Ascertaining the Ability of Purchasers to Pay.— A factor will bo held to all reasonable diligence in learning the ability of persons to pay for property purchased, and any inattention or carelessness in this respect will render him liable for losses sustained; and while he will not be held as a guarantor of his sales, he will be held to a high degree of vigilance in ascertaining the ability of his purchasers to pay.</p> <p>8. Customs—Not to Violate Rules of Law.—The law recognizes no validity in any custom which violates its own rules, and it is not error to exclude evidence which, if admitted, would tend to relieve a party from a just legal obligation.</p> <p>4. Former Decisions—Folloived.—The court follows its former decision in this case, reported in 84 Ill. App. 678.</p>

<p>Assumpsit, on the common counts. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.</p>

<p>1. Practice—Suits Against Joint Obligors. — Where two obligors on. a bond are sued and one only of them is served with process, the proper practice is to take judgment against the one served, only.</p> <p>2. Same—What is Not a Prosecution of an Appeal with Effect and What is an Affirmance of a Judgment on Appeal.—H. recovered a judgment of restitution against R. before a justice of the peace for certain premises described as “ the entire building known as No. 57 Grand avenue in the city of Chicago;” R. took an appeal to the Circuit Court and executed an appeal bond conditioned to prosecute his appeal with effect, and pay all rent then due and that might become due, before the final termination of the suit, and all damages and loss which H. might sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto, during such withholding, together with all costs, until the restitution of the possession, etc., in case the judgment is affirmed, etc. On trial in the Circuit Court, the judgment was in favor of H. for “ the first floor and one-half of the basement, containing an ice box, of the building, No. 57 Grand avenue;” held, that the appeal was not prosecuted with effect, and that the judgment appealed from was affirmed.</p> <p>3. Same—Under the Forcible Detainer Act—Judgment for a Part of the Premises Claimed.—Under section 14 of the forcible detainer act, where it appears that the plaintiff is entitled to a part only of the premises claimed, judgment and execution must be for such part only.</p> <p>4. Same—Names of Actions in Courts Where no Written Pleadings are Required.—When an action is instituted in a court where written pleadings are not required, the party suing need not name his action, or if he misnames it, it will not affect his rights, if, upon hearing the evidence, he appears to be entitled to recover, and the court has jurisdiction of the defendant and of the subject-matter of the litigation.</p> <p>5. Bonds—Construction of Statutory Obligations.—When a bond is executed in the form prescribed by a statute, the statute in legal effect enters into it and forms a part of the obligation.</p> <p>6. Damages— Measure of—Appeals in Cases of Forcible Detainer.— Where an appeal is taken from a judgment of restitution in a case of forcible detainer rendered by a justice of the peace, and the judgment is affirmed, the value of the use and occupation, or the reasonable rental value of the premises during the time that the landlord is wrongfully kept out of possession, is the correct measure of his damages and is properly recoverable under the condition of an appeal bond providing for the payment of damages and loss sustained by reason of the withholding the possession of the premises.</p> <p>7. Evidence—Identification of Judgments in Appealed Cases of Forcible Detainer.—A certified copy of a judgment of the Circuit Court, on the appeal of a case of forcible detainer, is admissible in evidence without the other proceedings in the case for the purpose of making a prima facie case of the identity of the judgment affirmed with that recited in the appeal bond.</p>

Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Henry County; the Hon. Hiram Bigelow, Judge, presiding. Heard in this court at the October term, 1900.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rook Island County: the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1900.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Henry County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1900.

<p>Indictment for Keeping House of Ill-Fame.—Error to the County Court of Rock Island County; the Hon. Lucian Adams, Judge, presiding. Heard in this court at the October term, 1900.</p>

Debt, on a bond. Appeal from the Circuit Court of Mercer County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1900. Statement.—Benjamin F. Brooks was the owner and holder of a beneficiary certificate in the Covenant Mutual Benefit Association of Illinois.

<p>1. Exhibitors—Rights of Agricultural Societies.—Parties exhibiting horses upon race tracks at agricultural fairs have a right to assume that a reasonably safe track will bo furnished them upon which to display their horses, and kept clear of obstructions.</p>

<p>Creditors’ Bill.—Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilsoher, Judge, presiding. -Heard in this court at the October term, 1900.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Woodford County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1900.