Volume 95 — Illinois Appellate Court Reports

Action for Damages. — Loss of property destroyed by fire. Appeal from the County Court of Ogle County; the Hon. Prank E.Reed, Judge, presiding. Heard in this court at the October term, 1900.

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

<p>1. Promissory Notes — Rights and Liabilities under the Act of 1S95 — Law Merchant. — The act of 1895 in relation to negotiable instruments (Laws 1895, 262) adopts the law merchant as to the rights and liabilities of parties to promissory notes payable in money. By that law the indorser is entitled to the presentment of the note to the maker, demand for payment and notice of dishonor.</p> <p>2. Same — Indorsements After Maturity, by the Law Merchant. — By the rule of the law merchant an indorsement after maturity amounts to an order to pay on demand, and notes so indorsed must be presented within a reasonable time after maturity in order to bind the indorser. Notice of dishonor must follow.</p> <p>3. Same — Insolvency, by the Laio Merchant — Notice of Dishonor.— By the law merchant, the fact that the makers were insolvent all the time and the indorser knew it, does not waive presentment for payment and notice of dishonor,</p> <p>4. Same — Indorser's Contract Not to be Varied by Parol. — The signature of a party on the back of a promissory note, transferred by him to another, is a contract in writing to the effect that if the holder presents it to the maker for payment and payment is refused, that upon receiving due notice of such fact he will indemnify the holder, and parol evidence is not admissible to contradict or vary such contract.</p> <p>5. Negotiable Instruments — The Rule of the Common Law Changed. — By the common law, in actions upon negotiable instruments there must be a recovery against all or none of the defendants, unless some one of them shows a defense personal to himself, not affecting the original joint liability of the parties.</p> <p>6. Practice — Severance of Parties, under the Act of 1895. — Where a suit is brought under (he act of 1895 against parties severally liable upon a promissory note for the payment of money, and apart of the defendants are defaulted, judgment may at once be entered against them, the action severed, and thereafter proceed to trial against the other defendants in the same manner as if it has been originally commenced against them only, and at the conclusion of the trial the plaintiff may have another judgment against any other defendant found liable upon such trial.</p> <p>7. Same — Implied Severance of the Suit when Authorized by the Act of 1895. — The act of 1895 impliedly authorizes the severance of the suit, whenever the issues between the plaintiff and part of the defendants have been determined by a just verdict, while the issues between the plaintiff and the other defendants not liable jointly with the defendants first mentioned have reached an unjust verdict which ought to be set aside.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the April term. 1900.

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

<p>1. Cities and Villages — Establishing Grades of Streets. — Where a city adopts an ordinance with reference to a particular street, referring for the grade to a profile in the clerk’s office, the grade as shown by such profile is adopted.</p> <p>2. Same — Bound by the Grades Established. — Where a city, after having adopted a grade for a particular street, sees fit to have such street upon a different grade, it does so at its peril.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Stephenson County; the Hon. James S. Baume, Judge, presiding. Heard in this court at the October term, 1900.

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

<p>Trespass on Hie 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 October term, 1900.</p>

<p>Assumpsit, on a certificate in a beneficiary association. Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding. Heard in this court at the October term, 1900.</p>

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

<p>Claim in Probate. — Appeal from the Circuit Court of Effingham County; the Hon. Truman B. Ames. Judge, presiding. Heard in this court at the August term, 1900.</p>

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

<p>Mortgage Foreclosure. — Appeal from the Circuit Court of Franklin County; the Hon. Silas Cook. Judge, presiding. Heard in this court at the August term, 1900.</p>

Action on the Case, for maintaining a nuisance. Appeal from the Circuit Court of Madison County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1900.

<p>1. Notice — Possession of Lands to Persons Talcing Mortgages.— Where a party fraudulently obtained a deed of conveyanbe, without consideration, from the owner of lands, and surreptitiously placed it upon record, and afterward mortgaged it to a third person, the owner in the meantime being in the open and visible possession of the land, it ivas held that the possession was notice to such third person of the fraud perpetrated upon the owner and of his rights, and that the mortgage was a cloud upon the title of the lands in question.</p> <p>2. Possession — Of Lands — Notice. —Possession of land by a grantor is notice of his retained equitable rights in it.</p>

Trespass on the Case, for obstructing á right of way. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1900.

<p>1. Presumptions — W7iere a Cause is Tried by the Court Without a Jv.ry.- — Where a cause is tried by a judge without a jury, the same presumptions obtain as to the facts found by the court as when the cause is tried by a jury.</p> <p>2. Appellate Court Practice— Where the Court Will Not Reverse —Irreconcilable Conflict of Testimony. — Where there is an irreconcilable conflict in the testimony, the Appellate Court will not reverse a judgment of the trial, where the evidence of the successful party, when con-, sidered by itself, is clearly sufficient to sustain the verdict.</p>

Trespass on the Case, for an obstruction of a watercourse. Appeal from the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the August term, 1900. Rehearing denied.

<p>1. Appellate Court — Jurisdiction Where a Freehold is Involved. —Where the effect of a decree is to take the freehold out of one person and place it in another, a freehold is involved and the Appellate Court is without jurisdiction.</p> <p>2. Freehold — In Suits to Remove Clouds. — In a proceeding to remove a cloud from the title to real property, where the title to the freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue, although the judgment or the decree does not result in one party gaining and the other losing the estate, a freehold is involved.</p>

<p>Assumpsit, for material furnished. Appeal from the Circuit Court of Jasper County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the August term, 1900.</p>

<p>1. Mines and Mining — Requisites of a Recovery under the Miners Act. — To sustain a recovery by a representative of a deceased coal miner, under the miners act, it must appear that the proprietor of the mine willfully failed and neglected to deliver to the deceased miner, props and caps of sufficient length and dimensions with which to prop, etc., and that because of such willful failure and neglect the deceased met his death.</p> <p>2. Same — When, Contributory Negligence is No Defense. — When willful neglect or omission to discharge a statutory duty is alleged and proved as a cause of action, contributory negligence on the part of the person injured in consequence of such neglect constitutes no defense.</p> <p>3. Trials — Presumptions Where the Trial is Without a Jury.— When oral evidence is heard by a judge, his conclusions will not be disturbed unless clearly against the weight of the evidence.</p>

Assumpsit, for .goods, wares and merchandise, sold and delivered. Appeal from the City Court of East St. Louis; the Hon. Alexander W. Hope, Judge, presiding. Heard in this court at the August term, 1900.

<p>1. Practice — Pleas in Abatement Under Extensions of the Time to Plead. — A plea in abatement filed under an extension of the time to plead without limitation as to the kind of plea, must, if filed within the time extended, be considered as filed in apt time.</p> <p>2. Same — Waiver of a Plea in Abatement. — Where a defendant, pending a motion to strike a plea in abatement from the files, obtains leave to file another plea, and files a plea of the general issue, he will, by so doing, waive his plea in abatement.</p>

Bill for an Injunction. — Appeal from the Circuit Court of St. Clair County; the Hon. Benjamin D. Burroughs. Judge, presiding. Heard in this court at the August term, 1900.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaeféií, Judge, presiding. Heard in this court at the August term, 1900.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Marion County; the Hon. William Farmer, Judge, presiding. Heard in this court at the August term, 1900.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the August term, 1900.

<p>Debt, for a statutory penalty. Appeal from the Circuit Court of Williamson County; the Hon. Alonzo I?. Vickers, Judge, presiding. Heard in this court at the August term, 1900.</p>

Assumpsit, for shares of stock, etc. — Appeal from the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the August term, 1900.

<p>1. Drains and Drainage — Ditches Under the Statute — Agreements Necessary. — Before drains can be constructed upon, over or across the lands of adjoining land owners, under section 187 of chapter 42, R. S. (Hurd’s R. S. 1899, 717), the parties whose interest is affected thereby must mutually agree upon the construction of the same.</p> <p>2. Same — Effect of Mutual Agreements by Adjoining Land Owners.— Where a drain is constructed by mutual agreement of two adjoining land owners, and by mistake as to the location of the line it is constructed wholly upon the land of one of them, .such owner, after utilizing the drain, will not be sustained in obstructing it because of its mistaken, location.</p>

<p>1. Appellate CouRt Practice— Trivial Errors. — Where it is apparent from an examination of the whole record that substantial justice has been done, the Appellate Court will not reverse a judgment of a trial court on account of technical or trivial errors.</p>

Assumpsit, for goods sold, etc. Error to the City .Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1900. Statement. — Plaintiff in error resides in Chicago and is a dealer in glassware, including beer bottles; defendant in . error is in the business of brewing and selling beer at Belle-ville in this State..

Assumpsit, for wheat stored in a mill. Appeal from the Circuit Court of White County; the Hon. Prince A. Pearce. Judge, presiding. Heal'd in this court at the August term, 1900. Statement. — Appellee operated the Riverside Mill at Shawneetown. In August, 1898, appellant stored wheat in appellee’s mill taking the following receipt; “ Shawneetown, Aug. 19, 1898.

<p>1. Sheriff’s Return — Amendment of, ete. — A suit in assumpsit was commenced in the Circuit Court of Richland County, a summons issued and July served on the defendant, but in making his return the sheriff omitted to state the date of the service. After the death of the defendant a motion to amend the return was made upon due notice to the widow and heirs of the defendant and allowed, and the return amended accordingly. Held, proper.</p>

<p>1. Nuisances — Not Justified by Legislative Authority. — If the noise, confusion and disturbance caused by the engines and cars of a railroad company are such as, in the absence of legislative authority, would constitute an actionable nuisance, the existence of such authority in no way relieves them of their damaging effect so as to take away from the property owners their right of redress, or, so as to convert what was before actionable into/a case of damnum absque injuria.</p>

Bill to Foreclose a Second Mortgage. — Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1900.

Trespass on the Case, for personal injuries, under the miners act. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1900.

<p>1. Insurance — Representations in the Application as to Title — Joint Ownership — Incumbrances.—Where a policy of insurance is issued to joint owners of property upon a warranty in the application that such property is free from incumbrance, a mortgage by one of the joint owners upon his interest in force at the time is such a breach of the warranty as precludes a recovery upon the policy.</p> <p>2. Presumptions —As to Defenses in Suits upon Policies of Insurance. — While forfeitures as defenses by insurance companies to suits upon policies are not favored in law, there is no presumption of fact either in favor of them or against them.</p>

<p>1. Railroads — Fires—Negligence in Allowing Combustibles to Accumulate on the Right of Way. — The presence of dry grass and other combustibles on the right of way of a railroad company, is negligence per se.</p> <p>2. Same — Measure of Damages in Cases of Fires upon Farms.— The measure of damages in cases of fires set by railroads upon farms is the difference between the value of the farm before the fire and its value after.</p>

<p>Proceedings to Vacate Order Appointing a Conservator. — Error to the County Court of Fayette County; the Hon. George T. Turner, Judge, presiding. Heard in this court at the August term, 1900.</p>

<p>Attachment, — Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1900.</p>

<p>Assumpsit, for rents. Appeal from the County Court of White County; the Hon. John N. Wilson, Judge, presiding. Heard in this court at the August term, 1900.</p>

<p>Mandamus. — Appeal from the Circuit Court of Wayne County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the August term, 1900.</p>

•Trespass on tlie Case. — Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1900. Statement. — This is an action on the case, by appellee against appellant, for injuries sustained by appellee, a minor of the age of fifteen years- at the time of the accident.

Bill to Foreclose a Mortgage and for Subrogation. — Appeal from the Circuit Court of Wabash County; the Hon. Edmund D. Young-blood, Judge, presiding! Heard in this court at the August term, 1900. Statement. — James E. Kelsey, appellee, filed his bill October 19,1899, against George Wilkinson and Charles F. Poole, to foreclose a certain mortgage, and for subrogation.

Trespass oil the Case, for malicious prosecution. ■ Appeal from the Circuit Court of Washington County; the Hon. William Haetzell, Judge, presiding. Heard in this court at the February term, 1900. Rehearing denied.

<p>1. Freehold — When Involved — Homestead in Issue. — A freehold is involved where the title is so put in issue by the pleadings that the decision of the case necessarily involves the issue of losing or gaining a homestead.</p>

<p>1. Chancery Practice — Going to Trial Without a Replication.— Where a party to a chancery proceeding submits to a trial without a replication, the lack of the replication is waived.</p> <p>3. Resulting Trusts — Do Not Depend Upon the State of Accounts Between the Parties. — A resulting trust does not depend upon the general state of accounts between the parties.</p> <p>3. Same — When it Arises in Favor of a Wife as Against Her Husband’s Creditors. — Where a husband and wife unite in the purchase of a farm and the wife contributes, out of her own property to the purchase money, a resulting trust will arise in her favor as against the creditors of her husband to the extent of her contribution to the consideration.</p>

<p>1. Boards op Education — Power to Dismiss and Remove Teachers.— A board of education has the power under the statute to dismiss and remove any teacher, whenever, in its opinion, such teacher is not qualified to teach, or whenever from any cause the interests of the school may require such removal or dismissal.</p> <p>2. Same — Discretion in Dismissing or Removing Teachers. — The fact as to whether a board of education has acted wisely in dismissing a teacher, is a matter into which the Appellate Court can not inquire.</p> <p>3. Statutes — Construction—Ejusdem Generis.— The rule of ejusdem generis is a mere rule of construction and can not override the intention of the legislature where that intention is otherwise plainly expressed.</p> <p>4. Words and Phrases — The Words “ Removal'’ and, “ Dismissal" as Used in the School Law. — As used in the school law the word “ removal” implies some dereliction of duty, and the word “ dismissal ” means termination, from whatever cause.</p> <p>5. Evidence — Matters Contained in an Offer of Proof. — Matter contained in an offer of proof is not evidence of the existence of such matter, and the court will not presume that such matter exists as recited in the offer.</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 October term, 1900.

Bill to Settle a Partnership. — 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 by the Court. — Jesse Bennett filed a bill against Thomas Chandler and Mrs. Thomas Chandler for the dissolution of a copartnership between said Bennett and Mrs. Chandler, and obtained the appointment of appellant as receiver of the partnership estate.

Assumpsit, for coal sold and delivered. Appeal from the County Court of Cook County; the Hon. W. C. DeWolf. Jr., Judge, presiding. Heard in this court at the October term, 1900. This suit was commenced by the W. L. Robinson Coal Company, appellee, against W. H. Richardson and Mrs. W. H, Richardson, his wife, V - appellant, before a justice of the peace, to recover for four tons of coal.

Mandamus, to compel the signing of a certificate of election. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tut-hill, Judge, presiding. Heard in this court at the October term, 1900.

Bill to Foreclose a Chattel Mortgage. — Appeal from the Superior Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in this court at the October term, 3900.

<p>Mandamus. — 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>

Debt, upon a replevin bond. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1900. This suit was begun in debt upon a replevin bond. One Francis Place, being the owner of certain chattels, mortgaged them to Gustav Cramer to secure an indebtedness evidenced by promissory note of Place.

Foreclosure of a Trust Deed. — 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>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>Assumpsit. — Common counts. 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>

Creditor’s Bill. — Appeal from the Superior Court of Cook County; the PI on. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

<p>Distress for Rent. — Appeal from the Circuit Court of Cook County; the Hon. Owen P. Thompson, Judge, presiding. Heard in the Branch ‘ Appellate Court at the March term, 1900.</p>

<p>Assumpsit, — Common counts. 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>1. Arrest of Judgment — After Demurrer to Declaration is Overruled. — After judgment overruling a demurrer to a declaration, there can be no motion in arrest of judgment for any defect in the declaration that could have been taken advantage of on the demurrer.</p> <p>2. Cities and Villages— When Bound by Notice of Character of Work. — When a city authorizes an arch to be constructed, requiring it to be done under supervision of the commissioner of public works, and such work is done in a careless and negligent manner, then the city is bound with notice of the character of the work and of the condition in which the arch was left.</p> <p>3. Act of God — What Is Not — High Winds. — A high wind blowing at the velocity of fifty-seven miles an hour,-causing an arch to fall, is not such an act of God as to release a city from liability, where they were negligent in the construction of the arch.</p> <p>4. Release — When an Agreement Not to Sue Is Not. — Where a causé of action exists against two joint tort feasors, a covenant or agreement not to sue one does not bar an action against the other in the absence of proof of release or accord and satisfaction.</p>

<p>1. Replevin — Measure of Proof by a Party Entitled to Possession.— Where an action of replevin is brought by the party entitled to possession, for the recovery of property wrongfully taken, it is only necessary for him to prove his right to the possession of the property to entitle him to a recovery.</p> <p>2. Same — Proof Under a Plea of Property in a Stranger. — In an action of replevin under a plea of property in a stranger to the action with the denial of the right of property in the plaintiff, the only issuable fact is the right of property in the plaintiff, and it is sufficient if the plaintiff has a special interest in the property entitling him to the present possession.</p> <p>3. Fraudulent Sales — When to be Set Aside as to Subsequent Creditors. — Subsequent creditors can not 'have a conveyance set aside as fraudulent unless it is merely colorable and a secret trust is shown to exist in favor of the vendor, or it is made with a view of defrauding future creditors.</p> <p>4. Fraud — Employment of Vendors After Sales Not Necessarily Fraudulent. — The employment of a vendor by the purchaser of a book bindery, to superintend the business at a weekly salary, makes him a mere employe, and such employment is not evidence of fraud.</p> <p>5. Evidence — Foundation for the Introduction of Lost Instruments. —Where there is evidence showing the execution oí a written instrument and witnesses testify that search has been made for it in every place where it ought to have been found, and one witness who drew the instrument stated that he knew its contents, a proper foundation is laid for its introduction in evidence.</p>

<p>1. Parties — Defendants in Suits on Joint and Several Obligations. —On a joint and several,obligation executed by two or more persons, one may be sued, or all, but not an intermediate number.</p> <p>2. Pleadings — Non-joinder of Co-defendants. — It is the general rule in an action ex contractu that the non-joinder of co-defendants can be taken advantage of only by a plea in abatement. But where it appears on the face of the record that another joint obligor has not been joined, advantage may be taken of it by motion in arrest of judgment.</p> <p>3. Practice — Motion in Arrest for Non-joinder of Parties. — Where the record shows a joint and several bond executed by three persons, and only two of them are sued, such defect can be taken advantage of by a motion in arrest of judgment.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook Count)-; the Hon. Marcus Kavanagh. Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900. Rehearing denied.

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 October term, 1900. Statement by the Court. — This is an action by Thomas O’Malley, an infant, aged at the time six years and five months, by his next friend, to recover for injuries received October 24, 1893, at the Erie street bridge of the city of Chicago.

Bill of Review. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1900.

Assumpsit. — Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1900. This suit was begun before a justice of the peace byappellee to' recover from appellant, a common carrier, its damages by reason of failure of appellant to deliver certain goods consigned to it by appellee for shipment.

Foreclosure of a Trust Deed. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1900. Held: as collateral, mortgage securities belonging to Schintz. At the time Schintz borrowed this money it was agreed between him and the company that he might substitute collateral for any which he might desire to withdraw from time to time. This right to substitute collateral he frequently exercised.

Action on the Case. — Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1900. This cause has been before the court upon an appeal from another and former judgment rendered by the Circuit Court, and upon that appeal the judgment was reversed and the cause was remanded. For a statement of the case reference may be had to the report of that decision in 88 Ill. App. 459.

Action on the Case, for personal injuries. Appeal from the Superior Court of Cook County; tie Hon. Marcus Kavanagh, Judge, presiding. Heard ih this court at the October term, 1900. Statement. — This is an appeal from a judgment for the sum of $6,000, rendered in an action on the case in favor of appellee and against appellant, for personal injuries alleged to have been occasioned by appellant’s negligence.

<p>Injunction. — Appeal from the Circuit Court of Cook County; the Hon. Prank Baker, Judge, presiding. Heard in this court at the March term, 1900.</p>

Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the October term, 1900. This suit was brought by appellee against appellant upon a promissory note, and appellant sought to recoup and set off for damages resulting from breach of contract. Appellant and appellee were copartners, engaged in the business of selling furniture upon commission.

Bill for Relief. — Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1900. AJSrmed on a remittitur being entered as directed, otherwise reversed and remanded.

Action on the Case, for personal injuries. 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. — This -suit was brought by appellee, Ellen Cooney, to recover damages sustained by her through negligence of appellant, a common carrier, while appellee was its passenger.

Action 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.

Assumpsit. — Common counts. Appeal from the Circuit Court of Cock County; the Hon. Charles G. Neely, 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 tifón. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1900.

Trespass on tile Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1900.

Bill of Foreclosure. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlajn, Judge, presiding. Heard in this court at the October term, 1900. Statement. — This is an appeal from a decree foreclosing certain trust deeds.

Trespass on the Case. — Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1900. Statement by the Court. — Alfred Camp, a boy aged seven years and nine months, on September 29, 1894, was run over by one of appellant’s electric cars on that day, at the intersection of West Lake and West Fifty-second streets, Chicago, and so injured that he soon thereafter died.

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

Trespass on the Case. — Death from negligent act. 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>1. Nuisance — Pollution of a Stream — Prevention by Injunction. — A court of equity has jurisdiction to prevent the pollution of the water in a stream by emptying the sewage of a city therein, whereby the water will be rendered unwholesome and unfit for use. Where such a nuisance is shown a court of equity will enjoin its continuance.</p>

Quo Warranto Proceedings. — Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1900. Reversed and remanded with directions.

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

<p>Bill to Set Aside a Fraudulent Conveyance. — Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the November term, 1900.</p>

<p>Assumpsit. — Breach' of warranty. Appeal from the County Court of McLean County; the Hon. Roland A. Russell, Judge,-presiding. Heard in this court at the November term, 1900.</p>

<p>1. Attorney’s Fees — Arof Allowed a Junior Mortgagee in Foreclosure of Senior Mortgage. — Where a bill to foreclose a senior mortgage makes a junior mortgagee a party, so that it is unnecessary for him to file a cross-bill to protect his interest, an attorney’s fee should not be allowed him.</p> <p>2. Receiver — When Not to be Appointed — Mortgages.—In a suit to foreclose a senior mortgage, if neither the bill nor cross-bill prays for the appointment of a receiver, the court should not appoint one, even though a junior mortgage may provide for the appointment of a receiver.</p>

<p>1. Negligence — Want of Care Precludes a Recovery. — When a person of an age capable of discretion comes to his death partly from the want of care for his own safety and partly from the stubbornness of one of his horses, but from no failure of the defendant to discharge any duty which it owed to the deceased or the public, there can be no recovery.</p>

<p>Maiiüanins. — Appeal from the Circuit Court of De Witt County; the 1-Ton. William G. Cochran, Judge, presiding. Heard in this court at the November term, 1900.</p>

<p>1. Judgments — When Judgment Debtor May Safely Pay the Judgment to His Creditor.- — The judgment debtor may safely pgy the judgment to his creditor in person, in the absence of fraud, or actual notice, or facts from which this notice should be inferred, relative to the claims , of others.</p> <p>2. Notice — When Sufficient to Judgment Debtor — Assignments.— Notice, in order to charge a judgment debtor with knowledge of an assignment of the judgment against him, should always be clearly proven, and should be of such a character that a disregard of it would amount to fraud.</p>

<p>Assumpsit, on promissory notes. Appeal from the Circuit Court of Macon County; the Hon. Edwakd P. Vail, Judge, presiding. Heard in this court at the November term, 1900.</p>

Trespass, for removing a house, etc. — Appeal from the Circuit Court of Morgan County; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1900.

Mandamus. — To compel the passage of an ordinance disconnecting territory. Appeal from the Circuit Court of McLean County; the Hon. Colostdt D. Myers, Judge, presiding. Heard in this court at the November term, 1900.

Certiorari, to review proceedings of the commissioners of highways. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1900.

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

Trespass on tlie Case, for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the November term, 1900.

<p>Claim in Probate. — 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>

<p>1. Voluntary Assignments — What the Assignee Takes.— The assignee of an insolvent debtor takes only such rights in the property assigned as the assignor had at the time the assignment was made.</p>

<p>Covenant, for covenants of seizin. 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, for personal injuries. Appeal from the Circuit Court of Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the November term, 1900.

<p>1. Instructions — Where Witnesses Have Sworn Falsely. — An instruction which states that if the jury believe from the evidence that any witness has sworn falsely to any material fact in issue they are at liberty to disregard the whole of such witness’ testimony except wherein it is corroborated by other credible evidence in the case, is erroneous as omitting the essential element that the witness has knowingly or willfully sworn falsely.</p> <p>2. Same — Test for Impeachment. — A witness may be honestly mistaken as'to some material fact and innocently swear falsely concerning it, and his testimony on other points be worthy of belief. The knowledge or willfulness of the untrue statement is the test for his impeachment.</p> <p>3. Malpractice — Liability Wlure a Surgeon is Prevented from Reducing a Dislocation. — -Where a surgeon is prevented from reducing a dislocation by the refusal of his patient to submit to the operation, the surgeon can not be held liable for damages resulting therefrom.</p> <p>4. Same — Duty of Patients.— It is the duty of a patient to submit to the necessary treatment prescribed by his physician or surgeon. If he is delirious and can not be made to understand the necessity of the treatment proposed, the physician or surgeon may co-operate with the patient’s immediate family and resort to reasonable force. But if the patient is in such a condition- and the members of his family having him in charge refuse to allow the proposed treatment, the physician or surgeon will not be required to use force and will not be liable for any injury to limb or health resulting from a failure to use the proposed treatment.</p>

Assumpsit, for hay and straw sold, etc. Appeal from the County Court of McLean County; the Hon. Roland A. Russell, Judge, presiding. Heard in this court at the November term, 1900.

<p>Creditor’s Bill. — Appeal from the Circuit Court of De Witt County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the November term, 1900.</p>

<p>1. Preferences — By Creditors of Insolvent Debtors. — A creditor who obtains from, an insolvent debtor a conveyance of property in payment of or as security for his debt, may know that his debtor is anting with the design of delaying and defrauding other creditors, but he will not lose his preference by reason of such knowledge, if he takes the conveyance in good faith and without any view of aiding in the consummation of the purpose, further than necessarily results from the securing of a preference to himself.</p> <p>2. Fraudulent Conveyances — Both Grantor and Grantee Must Participate in the Fraud,. — In order to impeach a conveyance of land for fraud both the grantor and the grantee must be shown to have intended to commit the fraud as against the creditors of the grantor.</p> <p>8. Subrogation — Where the Right Exists in Favor of Junior Mortgagees. — A junior mortgagee will have the right of subrogation for all prior mortgages paid off by him for the purpose of protecting his lien, and when made a defendant in chancery proceedings he should ask for the enforcement of such right in his answer.</p>

Trespass on the Case. — Death from negligent act. Appeal from the Circuit Court of Pike County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the November 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.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the November term, 1900.

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>Debt, on a collector’s bond. Appeal from the Circuit Court of Piatt County; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the November term, 1900.</p>

<p>1. Construction of Contracts — Matters Not Contemplated by the Contracting Parties. — Courts are powerless to interpolate into written agreements, conditions to which the minds of the contracting parties have not assented.</p> <p>2. Interest— What is Not an Unreasonable and Vexatious Delay in the Payment of Money. — Where the condition of a contract as to the performance of a certain act by one of the parties is an open question, the non-performance of such act alone will not justify the court in saying that there was an unreasonable and vexatious delay in the payment in money to become due by the terms of the contract.</p> <p>3. Solicitor’s Fees — Alloivance of an Amount in Excess of that Claimed in the Pleadings. — In foreclosure proceedings it is error to allow a solicitor’s fee in excess of the amount claimed as such in the pleadings.'</p>

<p>Bill to Set Aside a Fraudulent Conveyance. — Error to the Circuit Court of Edgar County;, the Hon. Henry Van Sellar, Judge, presiding. Heard in this court at the November term, 1900.</p>

<p>Replevin. — Appeal from the County Court of Sangamon County; the Hon. George W. Murray, Judge, presiding. Heard in this court at the November term, 1900.</p>

Bill to Construe a Contract. — Appeal from the Circuit Court of Montgomery County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1900.

<p>1. Divorce — Recriminatory Defenses. — In an action for divorce on the grounds of extreme and repeated cruelty and impotency, adultery on the part of the complainant may be pleaded as a recriminatory defense.</p>

<p>1. Insurance — Warranty of Title of the Insured Property. — Where the legal title to the insured property was in the plaintiff’s wife, and one of the warranties in the contract of insurance is that the applicant was the owner of the property, but the agent of the company at the time' the policy was issued was advised of the fact, it is too late, after a loss, for the company to take advantage of the warrranty as to the title of the insured premises.</p> <p>2. Same — Holders of Equitable Titles Have Insurable Interests. — A party who purchases property with his own funds, but, as a matter of convenience, has the same conveyed to his wife, has an insurable interest in such property.</p> <p>3. Same — Breach of Warranty tobe Specially Pleaded. —Advantage of a breach of warranty in the application for insurance as to mortgages on the premises, can only be taken under a special plea setting up the facts.</p>

<p>Trespass on the Case. — Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1900.</p>

Trespass oil 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. Affidavits Read on the Motion for a Continuance. GL M. McDowell, being sworn, says that, he is one of the attorneys of the defendant.