Volume 96 — Illinois Appellate Court Reports

<p>1. Promissory Notes—Remedies in Equity.—A promissory noto may be open to defenses, under the statute, as against innocent purchasers before maturity, in a suit at law; but it does not follow that as complete relief can be had in such a suit as in a court of equity, and where equity acquires jurisdiction for one purpose it may properly retain, it to administer complete justice between the parties in a single suit.</p>

<p>Trespass on the Case.—Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the 'Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Master and Servant—Duty of the Master in Providing Safe Machinery.—An employer is not bound to furnish for his workmen such machinery as is absolutely safe, nor the safest machinery made; but he is to use reasonable and ordinary care and diligence to provide apparatus such as can, with reasonable care, be used without danger to the employe.</p> <p>2. Same—Master Not Liable for an Injury Caused by a Fellow-Servant.—-Where one servant receives injury through the negligence or want of care on the part of a “ fellow-servant,” the common master will not be liable for the injury.</p>

<p>Bill for the Rescission of a Conveyance of Real Estate.—Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Eminent Domain—A City May Abandon Proceedings in Condemnation.—A city has the right to abandon proceedings in condemnation, and it is under no legal obligation to pay the compensation awarded unless it chooses to do so. But it can not lawfully take possession of the property, unless with the owner’s consent, until it has paid the award.</p> <p>3. Same—Property Taken Must be Paid for in Manner Provided by the Ordinance.— Where an ordinance adopted by a city for the widening of a street provided that the cost of taking the property should be met by special assessment to the extent it might be legally assessed, the remainder only to be met by general taxation, the payment for the property taken can not be met in any other manner than that provided by the ordinance, and a judgment can not be entered against the city in assumpsit for the amount of the condemnation proceedings.</p> <p>3. Same—Owner's Remedy Where the City Takes Possession Without Payment of Damages.—A city has no right to the possession of property taken under condemnation proceedings until the damages have been paid, and if it takes possession before such payment the owner may bring ejectment or trespass, or both, and recover his property with such damages as he may have sustained by the unlawful taking, or he may proceed under Par. 169, Chap. 24, Rev. Stat.</p>

<p>1. Practice—Appeals and Writs of Error—Judgments on Demurrer in Mandamus Proceedings, When Not Final.—A writ of error, by a part of the defendants in a proceeding by mandamus, will not lie to review the judgment of the trial court in overruling a demurrer to the petition by such defendants, as such judgment can not be final until the petition is disposed of 'as to the other defendants.</p>

<p>Bill to Enforce the Liability of Stockholders.—Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Attachments—Strict Compliance with the Statute Required.—A compliance with the positive requirements of the statute is necessary in order to confer jurisdiction upon the court where there is no personal service or appearance of the defendant.</p> <p>2. Same - What is a Defective Affidavit.—An affidavit for an attachment which fails to state the residence of one of two defendants, or that upon diligent inquiry the affiant is unable to ascertain the same, and which also fails to state that the other defendant was indebted to the plaintiff in any sum whatever, is defective and insufficient.</p> <p>3. Same—AZZ Essential Requirements of the Statute Must be Observed. —In attachment proceedings, all the essential requirements of the statute giving the remedy must be observed. The remedy is given by the statute, and it must affirmatively appear that its provisions have been substantially complied with, before the court can obtain jurisdiction, where there is no personal service of the writ or appearance of the defendant.</p> <p>4. Same—Essentials on the Part of the Plaintiff.—It is incumbent on the part of a party, before suing out an attachment, not only to set forth the nature of the indebtedness and causes for the attachment, but also to set out -and allege the place of residence of the defendant, if known.</p> <p>5. Judgments—In Attachment are Entireties.—-A judgment in attachment in aid of a suit in assumpsit is an entirety, and if void as to one of two defendants it is void as to both.</p> <p>6. Service of Process—On Non-Residents, Mailing Copy of Publication.—The filing of the affidavit of the non-residence of a defendant in attachment proceedings, stating her place of residence, and the mailing of the copy of publication to her more than two years after the return of the attachment writ, is ineffective as to such defendants.</p>

<p>Foreclosnre of a Trust Deed.—Error to the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Wills—Construction of—Thelntention of the Testator to Govern. —The purpose to be attained by the construction of a will is to ascertain the intention of the testator.</p> <p>2. Same—Rules for Ascertaining the Intention of the Donee of a Power.—The weight of English authority is that there can be no execution of a power by a testator, unless in the will one of three things appear: (1) a reference to the power (2) or to the subject or property covered by the power, (3) or where the instrument would be inoperative without the aid of the power. These three things concurring, or any one of them existing, demonstrates to an absolute moral certainty that there was an intention by the donee of the power to execute it.</p> <p>3. Gifts—When Manifesting an Intention by a Donee to Execute a Power.—A gift of that which a testator cannot dispose of, except in the execution of a power, necessarily manifests an intention to execute that power.</p>

<p>1. Practice—Reading Counter-Affidavits on Motions to Vacate Judgments by Default.—Counter-affidavits may properly be read in. resisting motions to vacate judgments by default.</p>

<p>Debt, on a replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>' Bill for Separate Maintenance.—Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding.</p>

<p>1. Belease—Of the Bight of Action for Personal Injuries.—A. release, under seal, of a caus.6 of action for personal injuries, standing alone and unexplained, constitutes a complete bar to such a suit.</p> <p>2. • Same— What is Not Sufficient to Invalidate Such a Belease.—The fact that a party executing a release under seal, of a cause of action for personal injuries, did not receive the one dollar named in the release as the consideration, or that certain, typewritten portions were not upon it when he signed it, is not sufficient to invalidate the instrument as an effective release, where there is no pretense that it was represented to him as anything different from what it was, viz., a release of his claim.</p>

<p>1. Contracts—Construction—Penalties and Liquidated Damages. —Where from the nature of an agreement it is clear that any attempt to get at the actual damage would be difficult, if not in vain, the courts will incline to give the relief which the parties have agreed upon. But if, on the other hand, the contract is such that the strict phraseology would work an absurdity or oppression, the use of the term “ liquidated damages ” will not prevent them from inquiring into the actual injury sustained, and doing justice between the parties.</p> <p>3. Same—Right of the Parties to Agree upon Compensation in Case of a Breach.—The parties to a contract may lawfully agree upon any sum as compensation for the breach of the contract, which does not manifestly exceed the amount of the injury suffered.</p> <p>3. Same— Where the Amount Stipulated is Disproportions! to the Probable Damages.—Where the amount stipulated in a contract to be paid by the defaulting party is disproportionate to the probable damages or to the readily ascertainable loss, the courts will treat it as a penalty in the nature of a security for the performance of the contract.</p> <p>4. Same—Just Compensation for the Loss or Injury Sustained.— Courts of justice will not recognize or enforce a contract or any stipulation in it, clearly unjust and unconscionable, but will adopt the best and most practicable mode of ascertaining the sum which will produce a just compensation.</p> <p>5. Same—Where the Party Suing Fails to Show that He Has Sustained any Damage.—Where a party to a contract, stipulating for the payment of $3,000 in case of its violation, is suing for a breach of its conditions and fails to show that he has sustained any damage, the courts will be disposed to treat the stipulated sum as a penalty, especially where to enforce it would work hardship and oppression.</p>

<p>Debt, on a replevin bond.—Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Appellate Court Practice—When the Judgment Will he Affirmed.—When it appears upon the whole record that substantial justice has been done by the judgment of the tidal court it will be affirmed.</p> <p>2. Acceptance— Of Work Done, When it Must he Unconditional.— The acceptance of work done under a contract must be absolute and unconditional in order to preclude a subsequent claim for defects.</p> <p>3. Practice—Amendment of Bills of Particulars, Discretionary.—It is a matter resting within the sound discretion of the court as to whether the amendment of a bill of particulars shall be allowed, and to do so is not error unless such discretion has been abused.</p> <p>4. Same—Suits for the Use of Nominal Plaintiffs.—It is a matter of no consequence to the defendant, for whose use a suit is brought. The party in whom the legal right of action is, may, as respects the defendant, bring his suit for the use of whatever person he chooses, and it is no concern of the defendant for whose use the action may be brought, neither is it necessary that the person for whose use such suit is brought should have any interest in, or connection otherwise with, the subject of the suit.</p> <p>5. Interest—On the Amount of Damages for a Breach of Contract, When Properly Disallowed.—Where there is a range in the estimate of values from $150 to $400, it can not be said that there was at the time of the breach of the contract a well established market price from which, without the verdict of a jury, the party liable to pay the same could know how much he was liable for, so that interest might be computed upon it.</p>

<p>1. Evidence —Parol Evidence Not Admissible to Show that a Contract is Inoperative.—Where a contract, being ready for delivery, is handed to the obligee, with the intention, at the time, of passing the present title, there is a delivery, and parol evidence that it was not to become operative until the performance of some condition, is not admissible.</p> <p>2. Guaranty—When Consideration far a Contract is Not Sufficient.—Where a guaranty is simultaneous with the execution of the contract guaranteed, the consideration for the contract is a sufficient consideration for the guaranty; but if the guaranty is so long subsequent to the execution of the contract that it can not be said to have been a part of the original transaction, the consideration for the contract will not support the guaranty.</p> <p>3. Same—Where a Guarantor is Not liable.—An obligor’s promise to furnish a bond as security for the performance of a contract which he is seeking to obtain, is not a sufficient consideration to hold him on a bond executed ten days after the execution of the contract.</p>

<p>Foreclosure of a Trust Deed.—Appeal from the Circuit Court of Cook County; the Hon. Richard 8. Tuthill, Judge, presiding.</p>

<p>1. Agents—When Personally Bound by an Agreement.—The fact that persons in executing an agreement to arbitrate describe themselves as general agents, does not operate to limit their individual liability; such recitals are to be regarded as descriptive only.</p> <p>2. Same—Agents are Bound Unless They Execute the Contract in Name of Their Principal.—The fact that parties were known to those making the contract to be doing business as agents, does not operate to free them from individual liability upon a contract which they have chosen to execute in their own names and not in the name of their principal.</p> <p>3. Arbitration—When Agents are Bound by a Submission to Arbitration.—One who signs a submission to arbitration as agent, without disclosing the name of his principal, is personally bound by the submission.</p> <p>4. Same—Parties Entitled to Notice of Hearings.—It is doubtless the law that the parties to a submission to arbitration are entitled to notice of any hearings of the matter by the arbitrator.</p> <p>5. Assumpsit—The Proper Remedy upon an Award.—Where an award is merely for the payment of money, assumpsit is the proper remedy; and the fact that such award provides for the exchange of releases as a mutual provision, not so connected with the payment as to make it a condition of such payment, will not render it necessary to set up specially, the tender of the release by the party suing on the award.</p>

<p>Foreclosure of a Trust Deed.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Trespass on the Case.—Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Bill for the Appointment of a Receiver.—Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>Contempt of Court.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Bill to Rescind a Contract.—Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.</p>

Trespass on the Case, by a husband for the loss of the companionship and aid of his wife. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.

<p>1. Questions of Pact—Whether the Rate of Speed of a Train is the Proximate Cause of an Injury.—Whether the negligence of a railroad company in running its trains at a greater rate of speed than allowed by an ordinance, was the proximate cause of an injury, is a question of fact for the determination of a jury.</p> <p>2. Presumptions—From the Violation of an Ordinance by a Railroad Company.—Where a railroad company runs its trains at a greater rate of speed than that allowed by an ordinance, whatever presumption of negligence arises from the violation of the ordinance, may be regarded as admitted.</p> <p>3. Injuries—Liability of a Defendant— Causes Proximate and Remote.— Every defendant is to be held liable for all the consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen and was under no moral obligation to take into consideration.</p> <p>4. Instructions—Causes Proximate and Remote.—Where an action for personal injuries raises a question of remote and proximate causes, the jury should be instructed that so far as the case turns upon that issue the defendant is to be held responsible, if the injury was a natural consequence of his alleged negligence, which might have been foreseen by any'reasonable person; but'he is not to be held for injuries which could not have been foreseen or expected as the results of his negligence or misconduct.</p> <p>5. Proximate Cause—Defined.—A proximate cause is one which stands next in causation to the effect, not necessarily in time or space, but in causal relation.</p> <p>6. Same—Practical Construction by the Courts.—The practical construction of the term “proximate cause” by the courts is, that it is a cause from which a man of ordinary experience and sagacity could see that the result might probably follow; but it is not to be understood as requiring that the particular result might have been foreseen; for if the consequences follow in unbroken sequence from the wrong to the injury without my intervening efficient cause, it is sufficient.</p> <p>7. Intervening Efficient Cause—Defined.—An intervening efficient cause is defined to be a new and independent force which breaks the connection between the original wrong and the injury, and itself becomes the direct and immediate cause of the injury.</p> <p>8. Negligence—Of Two Different Defendants.—When the negligence of the servants of a street car company and a steam car company both contribute to an injury, although neither alone constitutes an efficient cause, both are. alike liable as though each had been guilty of the negligence without the other.</p> <p>9. Railroads—Running Trains at an Unlawful Rate of Speed, When a Proximate Cause of an Injury.—Where a railroad passenger train of steam cars was approaching the crossing of an electric street car track in a city at a rate of speed greater than that, allowed by the ordinances, and collided with an electric street car, which, notwithstanding the passenger train had whistled for the crossing and the flagman was ringing the bell at the time, kept on its way at full speed, crashed through the railroad gates and ran upon the track in front of the approaching train and was struck by the engine, and one of the passengers in it injured, it was held that the passenger train was the efficient cause of the accident.</p> <p>10. Damages—When $15,000 is Excessive.—A female passenger upon an electric car in the city of Chicago was injured in a collision with a railway passenger train in February, 1897. She was thrown some distance by the force of the collision but was able to get up and go to a cottage near by. She was considerably bruised and experienced a severe nervous shock; in March following she was treated for an organic disturbance of the valves of her heart and in October was suffering from an attack of nervous prostration. It appeared afterward that her nervous condition was not necessarily permanent and that there was nothing in her condition from which she might not recover. The day after the accident she rode home in a buggy and about six weeks afterward, attended church. The year following she learned to ride a wheel and would go generally about three miles at a time. Before her injury she was employed as a stenographer and type-setter in anewspaper office and earned from $3.50 to $4 per week. It was held that a verdict for $15,000 was excessive.</p>

<p>Indictment for a Conspiracy.—Error to the Criminal Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Assumpsit, for use and occupation. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>I. Practice—On Appeals from Justices.—Where an appeal from a justice is taken by filing a bond in the court to which the appeal is taken, such court is without jurisdiction to dismiss the appeal or to make any order in the case adversely to either party, without his consent, until the appellee has been summoned or entered his appearance ten days before the commencement of the term at which such action is had.</p>

<p>1. Pleading—Defects Cured by the Verdict.—Where there is any defect, imperfection or omission in any pleading, whether in substance or in form, which would have been a fatal objection upon demurrer, if an issue is joined upon it which necessarily requires a trial, proof of the facts so defectively or imperfectly stated or omitted, without which it is not to be presumed that either the judge would direct or the jury would have given a verdict, such defect, imperfection or omission is cured by the verdict.</p>

<p>Mortgage Foreclosure.—Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Ordinary Care—Reciprocal Duties of a Bicycle Rider and Employes of a Street Car Company.—A man on a bicycle in a public street, occupied by an electric railway, is bound to exercise ordinary care for his own safety, and the employes of the railway are bound to use the same degree of care not to injure him; but what each is required to do depends upon the situation under which such exercise of care is demanded.</p> <p>2. Negligence—Omission of a Duty Unexpectedly Arising.—Where an alleged negligence consists of a duty suddenly and unexpectedly arising it is incumbent upon the plaintiff, in an action for personal injuries, to show that the defendant or its servants had an opportunity to become conscious of the facts from which it arose and a reasonable opportunity to perform such duty.</p> <p>3. Electric Oars—Duty of the Motorman.—The motorman in charge of an electric car in a public street is bound to notice the presence of vehicles ahead of his car, either directly, or so close to the track that there is danger of a collision, but he is not bound to apprehend that a vehicle proceeding on a line parallel to the track and at a safe distance from him will, other than at a crossing or in the immediate vicinity of one, diverge from its course and go upon the track or so near to it as to be struck by his car.</p> <p>4. Same—Duty of the Motorman to Give Warning to Drivers of Vehicles.—It is the duty of a motorman in charge of an electric car running in a public street to notice what vehicles ahead of him and near the track are doing, and if he sees one going upon the track or so near to it as to he in danger of being struck by his car, to warn the driver of such vehicle, and so far as he is able, for the purpose of preventing a collision, to arrest the progress of his car.</p> <p>5. Same— What the Motorman May Assume.—If a person is seen upon the track or near to it, and is apparently capable of taking care of himself, the motorman should give warning by sounding his gong, and having done so, he may assume, so long as the danger does not become imminent, that such person will leave the track before the car reaches him; but this presumption is not to be indulged in with reference to children who are too young to appreciate the danger, nor with regard to those who appear to be in a peril from which they are unable to extricate themselves.</p> <p>6. Instructions—In Actions Against Street Car Companies for Causing the Death of a Person.—In an action against a street car company for damages in negligently causing the death of a person, under a declaration charging that its car ran against and struck the deceased, an instruction which tells the jury that if they find from the evidence that the deceased ran his vehicle into the side of the car and thereby caused the accident their verdict should be for the defendant, is proper, and should be given.</p>

<p>1. Injunctions—Legal Effect of a Denial of Motion to Dissolve.— The denial of a motion to dissolve an injunction is the same in legal effect as an order grantiág an injunction.</p> <p>2. Landlord and Tenant—Landlords Option Where the Tenant Holds Over.—Where a tenant holds over after an indefinite term of years the landlord may consider him a tenant and he will be understood as doing so unless he proceeds to eject him at once.</p> <p>3. Same—Effect of Receiving Rent from a Tenant Holding Over.— Where a landlord suffers a tenant to remain in possession after the expiration of his term and receives rent from him, or by any other act acknowledges him as a tenant, a new tenancy springs up regulated by the covenants and stipulations entered into by the parties at the creation of the original term, so far as they are applicable to the altered nature of the tenancy.</p> <p>4. Same—Where the Tenant Remains in Possession After the Expiration of a Term of Years.—Where a tenant remains in possession after the expiration of a term of years, with the consent of the landlord, the law will imply anew tenancy without a definite period for its termination, and if either party desires to terminate it, good faith requires that reasonable notice should be given.</p> <p>5. Equity—When It Will Protect a Tenant.—A court of equity will protect a tenant in the enjoyment of premises of which he is in the rightful possession and entitled to remain in such possession until duly-notified as required by the statute.</p>

<p>Trespass on the Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Interlocutory Order, granting an injunction. Appeal from the Circuit Court of Cook County; the Hon. Area N. Waterman, Judge, presiding.</p>

<p>Trespass on the Case, for property destroyed by a mob. Appeal from the Circuit Court of La Salle County; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>Bill to Redeem.—Appeal from the Circuit Court of Winnebago County; the Hon. John C. Carver, Judge, presiding.</p>

<p>Bill for an Injunction.—Appeal from the Circuit Court of DeKalb County; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>1. Street Railway Companies—Same Right to Use Streets as Teams.—A street railway company has the same right with its cars in a street, that an individual with a team has, and is only bound to use ordinary cave with reference to the latter’s safety. Such company is not responsible for injuries resulting from a team being frightened at the sight of its cars, unless it fails to use reasonable care to avoid the injury.</p> <p>3. Same—To Some Extent the Right is Superior to that of Teams.— The right of a street car company in respect to its cars is to some extent superior to the right of a driver of a team. Its cars are confined to a fixed track, and consequently the drivers of teams must turn out to let them pass.</p> <p>3. Same—Duty of the Motorman.—It, is the duty of a motorman in charge of an electric car to be watchful of the track in front of his car while it is in motion and to exercise reasonable care to avoid collisions.</p>

<p>1. Married Women—Entitled to Support, Without Cruelty.—A wife is entitled to support, without violence and without cruel treatment at the hands of her husband, and if by blows and kicks inflicted upon her, he drives her from his home, she is entitled to be supported by him at. such reasonable place as she takes refuge in.</p> <p>2. Same—When Justified in Living Separate from Her Husband.— Where a husband by reason of his use of intoxicating liquors and cruel treatment compels his wife to take refuge at a place away from his home, and afterward goes to her place of refuge, asking her to return, but accompanying his request with the assertion that he “ would drink till the day of his death and she could go to hell,” after her experience of his violence, the wife was not obliged, in the presence of such language, to return.</p> <p>3. Same— Right of Action Under the Dram-shop Act.—Where, under such circumstances, the husband flees to parts unknown, leaving the wife destitute, where his intoxication is caused by keepers of dram-shops, she is entitled to have her action against them under the dram-shop act.</p>

<p>Trespass on the Case, for injuries under the miners act. Appeal from the Circuit Court of Bureau County; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Assumpsit, for money had and received. Appeal from the Circuit Court of LaSalle County; the Hon.Robert W. Hilscher, Judge, presiding.</p>

<p>Trial of the Rights of Property.—Appeal from the County Court of Stark County; the Hon. W. W. Wright, Judge, presiding.</p>

<p>Trespass on the Case, for seduction. Error to the Circuit Court of De Kalb County; the Hon. George W. Brown, Judge, presiding.</p>

<p>1. Auctions—Seller and Purchaser Bound by the Proclaimed Terms. —Both the purchaser and the seller aré bound by the publicly proclaimed terms of an auction sale.</p> <p>3. Equity—Power to Reform Mistahes in Conservator's Deeds.— Where the terms of a deed executed by a conservator are by mistake made to include things not sold, the deed may be reformed by a court of equity.</p> <p>3. Condemnation—Judgments of, Do Not Vest Title, etc.—A mere judgment of condemnation does not vest the title to the lands of an insane person, to be taken for a public highway, in the commissioners of highways, and such land may afterward, under proper proceedings, be sold so as to vest the title in a purchaser and entitle him to the condemnation money.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Boone County; the Hon. Charles E. Fuller, Judge, presiding.</p>

<p>Garnishment.—Error to the Circuit Court of Marshall County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilsoher, Judge, presiding.</p>

<p>1. Master and Servant—Duty of the Master to See that the Place Where he Puts His Servant to Work is Reasonably Safe.—It; is the duty of a master to exercise reasonable diligence to see that the place at which he puts his servant to work is reasonably safe, and he can not excuse or exculpate himself by showing that be did not notice any dangers or that none were obvious to him.</p> <p>2. Same—Duty of the Servant—Risks Assumed.—The servant is bound to exercise ordinary care for his own safety. Risks which are obvious and incident to his employment he assumes; but he has a right to rely upon the obligation resting upon the master to exercise reasonable care to see that the place in which he is put to work is reasonably safe, although he is bound to take notice and guard against obvious dangers.</p> <p>3. Same— Questions of Fact for the Jury.—Whether an employer of men has exercised reasonable care to see that his employes worked amid surroundings as safe as with reasonable care they could be made, are questions of fact for the determination of a jury under the instructions of the court.</p>

<p>1. Evidence—Of Condition of Bridges Prior to Accidents.—A municipal corporation is liable for injuries caused by the insecure condition of its bridges when it has reasonable notice of such, and testimony as to the condition of such bridge prior to the time of .an accident, is admissible, but only for the purpose of showing that the defect by which the injury was occasioned had existed for such a length of time that the municipal authorities must be presumed to have had notice of it.</p> <p>2. Same—Of Condition of Bridges Prior to Accidents, When Not Admissible.—Where an injury is not caused by any general breaking down or insecure condition of a bridge generally, testimony as to its condition years prior to the accident, which does not tend to throw light upon the question as to whether the municipal authorities are presumed to have had notice of the defect by which the plaintiff was injured, is not admissible.</p> <p>3. Instructions—Are to be Based upon Testimony Heard by the Jury.—An instruction which tells the jury that in determining the amount of damages they are to consider certain things if the evidence so shows, and having done so, may allow the plaintiff such a sum in damages as they think will fully compensate him for the injuries sustained, where they have heard no testimony as to what sum such damages amounted to, is erroneous.</p>

<p>Bill for an Accounting.—Error to the Circuit Court of Winnebago County; the Hon. John C. Garver, Judge, presiding.</p>

<p>1. Statutes—Construction of the Act in Relation to the Suppression and Prevention of the Spread of Contagious and Infectious Diseases Among Domestic Animals.—The act of the General Assembly in relation to the suppression and prevention of the spread of contagious and infectious diseases among domestic animals (Laws, 1885,1,) does not authorize the Governor, upon the report of the Board of Live Stock Commissioners, to issue a proclamation, scheduling all of the United States and Territories of the United States other than the State of Illinois, and prohibiting the importation of dairy or breeding cattle therefrom into the State of Illinois, except under regulations prescribed by said act.</p> <p>2. Same—Penal Statutes to he Strictly Construed. —Section four of the act in relation to the suppression and prevention of the spread of contagious and infectious diseases among domestic animals (Hurd’s R. S., 1899, 155), providing, for a violation of some of its provisions, fines ranging from $1,000 to $10,000, and for a violation of other provisions, fines ranging from $25 to $200, and prescribing imprisonment in the county jail until fines and costs are paid, and a forfeiture of all right to compensation for property destroyed, under the act, is a penal statute, to be strictly construed, and not to be extended by implication.</p> <p>3. Same—Construction of the Act in Relation to the Suppression and Prevention of the Spread of Contagious and Infectious Diseases Among Domestic Animals.—It was not the design of the legislature in enacting the statute in relation to the suppression and prevention of the spread of contagious and infectious diseases among domestic animals, to confer upon the Board of Live Stock Commissioners and the Governor the power to prohibit the importation into the State of Illinois of cattle from any and every quarter of the globe except upon such conditions as they might prescribe.</p> <p>4. Same—Discrimination Not Authorized.— It was not the intention of the legislature, in enacting the statute in relation to the suppression and prevention of the spread of contagious and infectious diseases among domestic animals, to confer upon administrative and executive officers the power to select certain kinds of cattle and prescribe that such cattle can not be brought into the State of Illinois from any quarter of the globe except upon seizure and inoculation and perhaps slaughter at the hands of the Live Stock Commissioners, while other cattle can come in free.</p>

<p>Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding.</p>

<p>Assumpsit, for breach of a contract. Appeal from the Circuit Court of Du Page County; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>1. Trial by Jury—Right of, in Chancery Cases Under the Constitution.—The Constitution of 1870 preserves the right of trial by jury in all cases where the right existed before its adoption, but the right to such trial under the former Constitution did not extend to cases in chancery. It was confined to cases at law.</p> <p>2. Same—Right of, in Cases in Equity.— In a suit in equity in which the relief sought falls peculiarly within the jurisdiction of a court of chancery, the court is not compelled to submit any question arising therein to a jury.</p> <p>3. Chancery Practice—Appointment of Special Masters.—Where the regular master in chancery is a party to a suit in chancery it is not only proper, but it is the duty of the court, to appoint a special master.</p> <p>4. Same—Waiver of the Right to Take Evidence Before the Master. —Where a party to a proceeding in equity is notified, of the time fixed by the master for the taking of the testimony and also notified that he must produce his evidence before a certain date, and voluntarily absents himself, and neglects to produce any evidence in his own behalf, he can not be heard upon the trial to complain that the master’s report contains only the evidence of his adversary.</p>

<p>Assumpsit, upon a promissory note. Appeal from the Circuit Court of Livingston County; the Hon. George W. Paxton, Judge, presiding.</p>

<p>1. Damages—-Where $8,400 is Rot Excessive.—A man forty years of age, injured by a street railway car, lost one foot, the hearing of his right ear, the sense of smell, and suffered intense pain for many months. The business in which he was engaged was also lost to him. It was held that these facts justified a verdict for $8,400.</p> <p>2. Instructions—Referring to the AdDamnum.—The reference in an instruction to the amount of the ad damnum stated in the declaration is a bad practice and condemned by the courts, but it alone will not constitute such an error as to call for a reversal of the judgment, especially where the damages allowed are less than the amount of the ad damnum.</p> <p>3. Same—Where the Charges of Negligence and Manner of the Injury Need Not he Stated in.—In an action against a street railway company for a personal injury, where the charges of negligence and the manner in which the injury occurred' were distinctly stated in the declaration and easily to be understood, there is no reason why the same should be restated-in the instructions.</p>

<p>Tro spa-s on the Case, for slander. Appeal from the Circuit Court of Carroll County; the Hon. James S. Batjme, Judge, presiding.</p>

<p>Action in Case.—Appeal from the Circuit Court of DuPage County; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>1. Contracts—Retrospective Operation, How to Be Determined.— A contract may have a retrospective operation, and whether it has or not is to be determined from the contract itself.</p> <p>3. Same—Construction of an Executory, When Susceptible of Two Meanings.—Where the words of an executory contract are susceptible to two meanings, and there is no evidence arising from the surrounding circumstances to throw light upon the intention of the parties, thb more reasonable inference is that the contract was with reference to what was to take place after its making.</p>

<p>1. Agents—Acts in Excess of Authority.—An agent merely to receive the interest and principal of a note is not authorized to take the payment of the principal prior to the same becoming due.</p> <p>2. Mortgages—Assignment of, Must be of Record or with Notice to the Mortgagor.—The assignee of a mortgage, to be protected, should either give actual notice to the mortgagor of the assignment or have the assignment filed for record.</p> <p>8. Principal and Agent—Estoppel of the Principal to Deny the Title of Innocent Parties Dealing with His Agent.—When a principal, the owner of a note and mortgage, allows his agent to appear as the owner of, or as having full power of disposition over the same, and innocent parties are thus led into dealing with such apparent owner or person having the apparent power of disposition, they will be protected.</p>

<p>Trespass on tile Case.—Personal injury. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>1. Life Insurance—Limitations in Policies Are Valid.—A provision in a policy of life insurance, that no suit arising out of the contract shall be begun more than one year after the death of the insured, is a lawful and enforcible limitation.</p>

<p>1. Sales—Bill of Sale, When 'Not Valid as Against Creditors in the Absence of Change of Possession.—Under the provisions p£ Chap. 95, Sec. 1, R. S., an unrecorded bill of sale is not valid as against creditors or third persons unless possession of the property is delivered and remains with the grantee.</p> <p>2. Instructions—As to Good Faith of Transfer Between Belatives.— An instruction, that “clearer and more convincing proof of the good faith of a transfer of property is necessary when made to a relative than when made to a stranger,” is proper, and should be given, when a trans-' fer between relatives is attacked by creditors.</p> <p>8. Same—When the Evidence is Close on a Question of Delivery of Chattels.—When the evidence is close on the question of the sale and delivery of a stock of goods, an instruction that to constitute a valid transfer it should be accompanied by real, actual, open and visible change of possession of the property in question is proper, and should be given.</p>

<p>1. Fraudulent Conveyances—May Become So After Execution.— A deed not fraudulent at first may become so afterward by being concealed, or not pursued, by means of which creditors have been induced to give credit.</p> <p>3. Same—Burden of Proof on Subsequent Creditors.—As to subsequent creditors and trustees who represent them, the burden of proving an intention to commit a fraud in the making of a conveyance or withholding it from record rests upon such creditors.</p> <p>3. Freehold—When Not Involved.—Although in consequence of a proceeding in bankruptcy the title of a bankrupt in his property is transferred to his trustee, such transfer is only for the purpose of enabling the trustee to satisfy the claims proven against the bankrupt out of such property, and if such claims are paid from any source without a sale or further conveyance the title will be undisturbed by a suit by the trustee to set aside a fraudulent conveyance by the bankrupt and a freehold is not involved in such a suit.</p>

<p>Assumpsit.—Appeal from the Circuit Court of Iroquois County, the Hon. Robert W. Hilscher, Judge, presiding.</p>

<p>Bill in Chancery, to recover moneys converted by an agent. Appeal from the Circuit Court of Boone County; the Hon. Charles E. Fuller, Judge, presiding</p>

<p>Bill for Specific Performance.—Appeal from the Circuit Court of Du Page County; the Hon. Charles A. Bishop, Judge, presiding.</p>

<p>Bill for an Accounting.—Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher, Judge, presiding.</p>

<p>1. Parol Evidence—Not Admissible to Vary the Terms of a Written Instrument.—Parol evidence is not admissible to contradict the written assignment of a certificate of stock or the legal effect of such assignment, but it is admissible for the purpose of ascertaining whether the certificate of stock assigned was converted by the plaintiff’s testate in his lifetime to his Own use without the knowledge or consent of the owner.</p> <p>2. Measure of Damages—Conversion of Capital Stock in an Incorporated Company.—Upon the trial of a claim in probate against the executrix of a deceased person, for the conversion by him in his life time, of shares of stock in an incorporated company, where the evidence shows that the assets of the company were some $230,000 above its capital stock and that semi-annual dividends at the rate of from six to ten per cent per annum were paid, a verdict for an amount equal to the face value of the stock is fully justified.</p>

<p>Trespass on the Case, for malicious prosecution. Appeal from the Circuit Court of Ogle County; the Hon. James Shaw, Judge, presiding.</p>

<p>Foreclosure of a Mortgage.—Error to the Circuit Court of Boone County; the Hon. Charles E. Fuller, Judge, presiding.</p>

<p>Bill of Review.—Appeal from the Circuit Court of Whiteside County; the Hon. William H. G-est, Judge, presiding.</p>

<p>1. Married Woman—May Employ Her Husband as Her Agent.—In this State a married woman may have her own separate property, make contracts and do business as afemine sole, and avail herself of the services and agency of her husband in the conduct of her business or management of her property, without subjecting the profits arising from his management to the claims of his creditors.</p>

<p>1. Appeals—The Right Strictly Statutory.—The right to an appeal is strictly statutory and can only be exercised in conformity with the statute granting it.</p> <p>2. Appellate Court Practice—Bill of Exceptions Necessary.— Where there is no bill of exceptions in the record the Appellate Court can not know what showing was made upon motions in the court below and will presume that the action of the trial court upon such motions was correct.</p>

Trespass on the Case, for damages resulting from the death of a person by the negligent act of another. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding.

<p>Petition to Vacate an Order of Distribution.—Appeal from, the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Agents—Liability for Disobedience of Instructions.—It is a fundamental duty of an agent to obey all lawful and reasonable instructions given to him by his principal; and this, although he may think he knows of a very much better way. If he disobeys instructions given him, and because of such disobedience a loss or injury comes to his principal, such principal may recover such substantial damages as he has sustained by reason of such disobedience.</p> <p>2. Preferences—Right of a Debtor to Prefer One Creditor Over Another.—A debtor has the right to prefer one creditor over another, and thus to rid himself of an obligation held by such creditor, rather than to pay an obligation held by the other.</p>

<p>1. Waiver—0/ a Statement of the Gh’ounds for a New Trial.— Where a motion for a new trial is entered without any statement in writing specifying the grounds of such motion, and no objection by the adverse party to such omission is made in the court below, such statement will be treated as waived.</p> <p>2. Appellate Court Practice—In the Absence of an Assignment of Errors.—The absence of assignments of error in the record will necessítate an affirmance of the judgment or a dismissal of the appeal.</p>

<p>Covenant.—Appeal from the Circuit Court of Kankakee County; the Hon. John Small, Judge, presiding.</p>

<p>1. Counties—Suits on Official Bonds of Officers May be Brought in the Name of.—Under the provisions of Sec. SO, Cli. 34, R. S., it is proper to bring an action upon an official bond of a county officer in the name of the county.</p> <p>2. Instructions—As to the Approval of County Officers' Reports by the Board of Supervisors.—In an action by a county against a county officer on his official bond, an instruction which states that the approval by the board of supervisors of his report is to be considered as evidence of a settlement, but not final or conclusive, and if the report was not true and accurate the county is not bound thereby, but entitled to have the same corrected, is proper, and should be given.</p> <p>3. Fees and Salaries—Liability of County Clerks on Their Official Bonds for Fees Received.—It is immaterial from what source fees come into the hands of the county clerk; they are in the strictest sense earnings of his office, which he is obliged to report; and after deducting therefrom his salary, clerk hire and other expenses as fixed by the county board, it is his duty to pay the balance into the county-treasury, and a failure to do so is a breach of the conditions of his bond.</p>

<p>1. Partition—Purchasers Pendente Lite.—Where a judgment becomes a lien during the pendency of a partition suit and the lands in litigation are sold and conveyed under the decree in such suit the purchaser takes them free from the lien of such judgment.</p> <p>3. Same—Persons Acquiring Liens Prior to Suits in Partition.— Persons who acquire liens on real estate prior to the commencement of a suit in partition must be made formal parties to such proceedings and be served with summons in order to affect their rights, but such is not the rule as to those who' acquire rights during the pendency of the suit.</p> <p>3. Same—Persons Acquiring Judgments Pending Suits in Partition. —When a person obtains a judgment against a party to a proceeding for a partition of lands, pending such suit, and desires to defend the suit, he must make himself a party to it in some proper manner before it terminates. .</p> <p>4. SaMe—Rights of Parties Acquiring Judgments During the Pend-ency of Proceedings in Partition.—Where a judgment or other lien is obtained against the undivided estate of a tenant in common, and partition is afterward made, the lien' of the judgment follows the partition and attaches only to the premises set off to the party against whom the judgment is obtained.</p> <p>5. Same—Liens of Parties Pendente Lite Attach to the Fund Arising from the Sale.—Where a judgment is recovered against a part owner of lands during the pendency of a suit for partition of such lands and there is a subsequent sale of the lands under the decree in such suit the lien of the judgment is divested and converted into a lien upon the funds arising from the sale.</p> <p>6. Practice—Rights of Persons Acquiring Hens Pendente Lite— How Asserted.—Where a person has acquired a lien upon the interest of a party to a partition suit during the pendency of the proceedings and there is afterward a decree and sale of the lands under it, he may assert his lien upon the proceeds of the sale before the same is distributed by the master.</p> <p>7. Partition Sales—What Title the Purchaser Takes.—The purchaser at a partition sale takes a conclusive title as against all the parties to the suit, and their grantees, and holders of liens who have acquired their interests during the pendency of the proceedings, and such title is discharged of all incumbrances. The liens attach to the proceeds of the sale instead of to the land sold.</p> <p>8. Appellate Court Practice—Reasons for a Reversal Not Stated in the Opening Briefs, Waived.—Reasons for the reversal of a judgment, not stated in the' opening brief of appellant, must be treated as waived.</p>

<p>1. Fraudulent Conveyances— IVhat Are Not, Under the Bankrupt Law.—In order to invalidate a conveyance oí real estate under the bankrupt law, the petition in bankruptcy must be filed within four months from the time of the execution of the conveyance.</p> <p>2. Same—From a Husband to His Wife in Payment of Indebtedness. ■—A husband who is owing a debt, in good faith, to his wife, may lawfully make a conveyance of real estate to her, and she has a legal right to receive such conveyance at a fair value, in payment of the indebtedness, without being charged with fraud toward his creditors, irrespective of the provisions of the bankrupt act.</p>

<p>1. Husband and Wife—Husband’s Liability to Support his Insane Wife.—A county is not required by law to support gratuitously, at the poor house, an insane wife, returned to it by a State institution. Her support rests on the general duty of the husband to supply his wife with necessaries.</p> <p>2. Appellate Court Practice—TWiere the Appellee Fails to Call Attention to the Absence of an Assignment of Errors.—Where the appellee fails to call the attention of the court to the fact that no errors aro assigned on the record, the court may treat the case as if the errors argued were duly assigned.</p>

<p>Trespass on the Case.—Appeal from the Circuit Court of DeKalb County; the Hon. George W. Brown, Judge, presiding.</p>

<p>1. Mandamus—Sufficiency of an Affidavit Attached to the Petition Can Not he Questioned on Demurrer.—The sufficiency of an ¡affidavit attached to a petition for a mandamus can not be questioned on demurrer to the petition.</p> <p>2. Same—Sufficiency of the Petition Depends upon Its Allegations.— Upon a demurrer to a petition for mandamus the question to be considered is, whether the allegations of the petition entitle the petitioners to the relief asked, and not whether the proof of the facts alleged in it, is made by the affidavit filed in support of it.</p> <p>3. Practice—Defective Affidavits to Pleadings.—Where an affidavit is required to a pleading at law and is absent or insufficient, the proper way to take advantage of .the defect is by a motion to strike the pleadings from the files. .</p> <p>4. Same—Ts an Oath Necessary to a Petition for Mandamus.—It is at least a doubtful question whether an oath is now necessary to a petition for mandamus filed in the Circuit Court. It is no longer a prerogative writ requiring a showing why this extraordinary power should be called into exercise, but nothing more than an ordinary action at law. The statute authorizing it, not requiring the petition to be verified, an affidavit to it no longer fills any office or serves any purpose.</p> <p>5. Costs—In Mandamus Proceedings.—Where the persons who hold the offices in a village, and not the village itself, are made parties to mandamus proceedings and defeated in the action, it is proper to award costs and execution against them.</p> <p>6. Waiver—Of the Right to Appeal Without Giving Bond.—If an appeal bond under the statute should not have been required in this case, the point was waived by giving the bond.</p>

<p>1, Damages—Elements of, in Actions Under the Dram-Shop Act.— Trouble and discomfort to a person, resulting from his intoxication, are not grounds for awarding damages to his wife and children in actions under the dram-shop act.</p>

<p>1. Set-off—When Not To Be Allowed Under the General Issue—Recoupment.—Where two contracts of sale of different articles of merchandise are made by the same parties and one suit is brought upon both, the vendee may recoup against the demand for the price of either sale, any loss he may have sustained by its not being equal to what it was contracted to be, but he can not, under a plea of the general issue, set off such loss against the purchase price of the articles bought under the prior contract.</p>

<p>Bill for the Recovery of Money, obtained in fraud of the bankrupt act. Appeal from the Circuit Court of Peoria County; the Hon. Thomas M. Shaw, Judge, presiding.</p>

<p>1. Salaries—Ordinances Fixing Can Not be Amended or Repealed by a Resolution.—An. ordinance of a city organized under the general incorporation law of this State, fixing the salary of an officer, can not be altered or repealed by the adoption of a resolution to that effect.</p> <p>3. Ordinances—When Not Repealed by Implication.—Where a city incorporated under the general law adopts an ordinance, fixing the salary to be paid to the incumbent of a city office, such ordinance is not repealed, by implication, by the subsequent adoption of an annual appropriation bill, appropriating a different sum for such salary, notwithstanding the act of April 33, 1873,</p>

<p>Prosecution Under the Medical Practice Act.—Appeal from the Circuit Court of Winnebago County; the Hon. John C. Garver, Judge, presiding.</p>

<p>1. Trials by the Court—■Findings upon Conflicting Evidence.—. When the trial is by the court without a jury and there is a conflict in the evidence, and no propositions of law are submitted, the conclusion of the trial judge upon the controverted questions of fact will not be disturbed.</p>

<p>1. Master and .Servant— Liability for Malicious Acts of the Servant.—Where a servant, while in the discharge of his duties, perverts the appliances of his master to wanton and malicious purposes, to the injury of another," the master will be liable to the person injured.</p> <p>2. Damages—When $400 is Not Excessive.—The cook upon the State repair boat on the Illinois and Michigan canal, was scalded by steam from a blow-off pipe of an engine of a stone-crusher operated by the defendants. She was seriously burned upon the arm; not only the skin, but also the tissues underneath the skin, burned, and the whole front of the upper armed was inflamed, swollen and irritated, and discharged pus for a considerable time. She was wholly unable to work for about a month, and the arm took about eight months to heal, and gave her pain and trouble at the end of the year. A verdict for $400 was not so unreasonable as to indicate improper motives on the part of the jury.</p>

<p>1. County Courts—Jurisdiction in Suits Brought by the County.— A County Court has jurisdiction in a suit brought by the county against a person for his board, lodging and medical treatment in the county department of the poor house for insane persons, after their return by the State authorities as harmless chronic patients, and placed therein by the county authorities.</p> <p>2. Insane Persons—Impliedly Liable for Necessaries Furnished by the County Authorities.—An insane person, having sufficient means, and having been returned by the State authorities to the county from which he had been sent, as a harmless chronic patient, is impliedly liable for the board, lodging and medical treatment furnished him by the county authorities at the department for the insane at its county poor house.</p>

<p>Appeal from the Circuit Court of Will County; the Hon. Horraros Dibell, Judge, presiding.</p>

<p>1. Mandamus—Notice of the Presentation of a Petition for Mandamus to the City Council—Sufficient Designation of the Meeting.—Where a petition for mandamus averred that the relators filed their petition to the city council for the disconnection of territory with the city clerk on December 7th, and notified him that they desired it presented to the city council at its next regular meeting on December 17, 1900, it was held to be a full compliance with the statute as to the designation of the meeting to which such relators proposed their petition should be presented.</p> <p>2. Cities and "Villages—Duty of the Clerk to Present Petitions.— It is the duty of the city clerk to present to the city council, at its next regular meeting, all petitions to that body which have been filed with him.</p> <p>3. Parties—In Mandamus Proceedings.— The usual and most approved practice in mandamus proceedings is to file the petition in the name of the people, although there are numerous cases where the petition has been filed in the name of the parties seeking relief.</p> <p>4. Appellate Court Practioe—In Mandamus Cases Where the Issues of Fact Remain to he Settled.—The Appellate Court will not award a peremptory mandamus where" issues of fact in the court below remain to be settled.</p>

<p>Bill for a Sub-contractor’s Lien.—Appeal from the Circuit Court ot Knox County; the Hon. George W. Thompson, Judge, presiding.</p>

<p>Administration of Estates.—Appeal from the Circuit Court of Kankakee County; the Hon. John Small, Judge, presiding.</p>

<p>Administration of Estates.—Proceedings in probate. Appeal from the Circuit Court of Kankakee County: the Hon. John Small, Judge, presiding.</p>

<p>I. ¿olicitor’s.Fees—In Partition Suits, Where a Substantial Defense is Interposed as to a Part of the Property.—A solicitor’s fee for the complainant, in a partition suit, will not be apportioned among the defendants in interest, if a substantial defense is interposed as to a part of the property sought to be partitioned.</p>

<p>1. Pleading—Requisites of Special Pleas in Avoidance of Policies of Life Insurance.—In an action upon a beneficiary certificate containing a provision that the order “will not pay the benefits of members who commit suicide except it be committed in the delirium resulting from illness, or while the member is under treatment for insanity or has been judicially declared to be insane, but in all cases not within said exceptions, the amount of money contributed to the benefit fund by such members shall be returned and paid to the beneficiaries out of said fund in lieu of the benefit," a special plea founded upon such provision should set it out entire, and aver that the insured committed suicide, but not in delirium resulting from illness, nor while under treatment for insanity, nor after he had been judicially declared insane, and that before the commencement of the action it tendered to the plaintiff the entire sum contributed by the deceased to the benefit fund; or in other words, such plea, to state a defense, must show that the suicide was such as by the contract of insurance relieved the company from the payments of benefits.</p> <p>2. Practice— When the Filing of a Similiter is Waived.—When a similiter only is lacking to complete the pleadings in an action at law and the parties proceed to trial without objection the similiter will be treated as waived.</p> <p>3. Same—Where Parties go to Trial Without a Rejoinder.—Where parties to a suit at law go to trial without a rejoinder, where such rejoinder must be special and the party does not take a rule upon his adversary to rejoin, or pray judgment for want of such rejoinder, a formal issue is waived and the irregularity is cured by the verdict.</p> <p>4. Presumptions—From Circumstances Indicating Suicide.—When a dead body of an insured person is found under circumstances indicating suicide, in the absence of proof to the contrary, the presumption is that his death resulted from negligence or accident rather than from suicide.</p> <p>5. Instructions—Telling the Jury How Much Weight Should be Given to Certain Evidence. —An instruction which tells the jury how much weight should be given to the testimony is never proper.</p> <p>6. Appellate Court Practice—Grounds for a New Trial Must be Specified in the Motion.—Where a party moving for a new trial flies his points in writing, specifying the grounds of his motion, he waives all existing grounds for a new trial not so specified, and on appeal will be confined to the causes specified in his motion.</p> <p>7. Same—What may be Reviewed Without a Motion for a New Trial. —The action of the trial court in giving or refusing instructions may be reviewed without a motion for a new trial, but this rule does not apply where a motion for a new trial has been made and points filed entirely omitting the subject of giving or refusing instructions.</p>

<p>Trespass to Real Estate.—Appeal from the Circuit Court of Mercer County; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>Mandamus.—Appeal from the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding.</p>

<p>1. Chancery Practice—When the Findings of a Master are Conclusive.—Where the proofs in a chancery proceeding are conflicting and consist in part of oral testimony, and the finding of the master who hears the proofs and sees the witnesses, is supported by that of the chancellor, the Appellate Court will not feel warranted in overturning his conclusions.</p>

<p>• Í. Appellate Court Practice—Pleas in Abatement to Writs of Error.—A writ of error is a new suit and a plea in abatement is properly pleaded to the writ in the Appellate Court, the same as in actions at law in trial courts.</p> <p>2. Voluntary Assignments— When the Insolvent’s Estate is Closed. —When the proceedings under a voluntary assignment in the County Court are completed and an order entered discharging the assignee, an interested party aggrieved may keep the proceedings open by taking an appeal and filing an appeal bond and so transfer the matter to a court of review; but if he fails to do so, the order of the County Court in closing the estate of the insolvent is final and conclusive.</p> <p>3, Same—When a Writ of Error Will Not Ide to Review Proceedings Under.—Where the proceedings of the County Court under a voluntary assignment have proceeded in due form of law to the final close, the assets distributed and the assignee discharged, the estate of the insolvent must be considered as closed to all intents and purposes, and can not be opened by the commencement of a new suit by a writ of error in the Appellate Court.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. John Small, Judge, presiding.</p>

<p>1. Insurance—Who is the Proper Party to Insure Property as the Owner.—F., who was in the employ of McK., attended to the business of buying corn and paid for it with McK.’s money. Everything was done in McK.’s name and when the com was sold and McK. had taken out of the proceeds the money he had expended, the balance was to be equally divided between him and F. It was held that McK. was the proper party to insure the com as the owner of it.</p> <p>2. Same—When a Company is Estopped to Say that it Did Not Issue its Policy to the Right Party.—When all the facts concerning the interest of an applicant for insurance are stated to the agent of the company, it can not be heard to say, after a loss has occurred, that it did not issue its policy to the right party.</p> <p>3. Same—What is Not a Change of Ownership.—McK. was the owner of a lot of ear corn in cribs; insured the same against loss by fire and afterward contracted to sell it. He was to shell and haul it to an elevator in Galesburg and cause it to be weighed there and delivered.</p> <p>Before it was shelled it was destroyed by fire. It was held there was no transfer of the title of the corn sufficient to avoid the policy of insurance.</p> <p>4. Same—WTiaf is Not an Increase of the Hazard. —The fact that the owner of corn in cribs, insured against loss by fire, shelled the same with a machine operated by a steam engine, is not, under the circumstances of this case, such an increase of the hazard as will avoid the policy.</p> <p>5. Sales—When a Delivery is Necessary to Complete.—In a sale of personal property, when anything remains to be done to complete the contract, such as ascertaining the quantity or delivering possession, the title does not pass until these things are done,</p> <p>6. Waiver—By Insurance Companies.—Provisions in a policy of insurance forbidding a waiver of its conditions, may nevertheless be orally waived by the agent of such company.</p>

<p>1. Paupers—Policy of the State.—It is the policy-of this State to require near relatives of a pauper to support such pauper, and thereby relieve the public of that charge.</p> <p>2. SAME—County Authorities May Deliver a Pauper to Relatives in Another County.—If a pauper being supported by the county of her settlement has a sister in another county able and willing to support such pauper, the authorities of the county of her settlement may deliver such pauper to such sister in such other county, under a promise by said sister to support such pauper.</p> <p>3. Same— Where Such Pauper Afterward Becomes a Public Charge —Notice.—In such case, if such a pauper is for a time supported by such sister, and afterward becomes a public charge, the county of the pauper’s settlement is entitled to notice of that fact in order to render it liable.</p> <p>4. Interest—Liability of One County for Interest on Money Expended by Another in the Support of Paupers.—The county of a pauper’s settlement does not become liable to pay interest upon a claim by another county for support, merely because the authorities of the former removed the pauper into the latter county, if they delivered such pauper to a sister willing and able and who agreed to support such pauper, and if they notified the supervisor of the facts and agreed with him to remove the pauper if such pauper ever again became a public charge.</p>

<p>Replevin.—Appeal from the County Court of Mercer County; the Hon. Lucian Adams, Judge, presiding.</p>

<p>Assumpsit, on a contract of agency. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Evidence—As to the Condition of Emery Wheels in Foundries.— In an action for personal injuries alleged to have resulted from the bursting of an emery wheel in a foundry under the declaration in this case, evidence that the wheel had no shield or guard upon it was proper merely as descriptive, if for no other purpose.</p> <p>2. Practice—Estoppel to Object to the Admission of Evidence.— When a party to a suit objects to the admission of certain testimony and it has been excluded by the court, and subsequently, upon cross-examination, and also with his own witnesses, goes into the same subject himself, he will not be in a position to complain of the admission of such testimony in behalf of his adversary.</p> <p>3. Instructions—Negligence of the Master Not One of the Risks Assumed by the Servant.— In an action for damages resulting from the death of an employe, an instruction which informs the jury, merely, that if the deceased was killed in consequence of the defendant’s negligence as charged in the declaration, and that the deceased was at the time in the use of due care for his own safety their verdict should be against the defendant, is not erroneous.</p> <p>4. Negligence—Of the Master, Not One of the Risks Assumed by the Servant.—The negligence of the master is not one of the risks assumed by the servant where the question of the negligence of a fellow-servant does not arise in the case.</p> <p>5. Questions or Fact—Condition of Appliances.—The question as to whether an emery wheel used in a foundry was defective before and at the time of its bursting, is one of fact for the determination of the jury.</p> <p>6. Appellate Court Practice—Verdicts upon Conflicting Evidence. —It is a familiar rule of law that in case of the determination, by a jury, of a question submitted to them upon conflicting evidence, an appellate tribunal will not, in the absence of prejudicial rulings by the trial court upon the admission or rejection of evidence or in giving instructions, disturb the verdict upon the ground that it is not supported by the evidence in the case.</p>

<p>1. Negligence—A Question of Fact.—What is or is not negligence is a question of fact to be determined by a jury, under proper instructions, unless the act sought to be established as constituting negligence is such that all fair and reasonable minds would agree that it should be so characterized.</p> <p>2. Same—Boarding a Moving Train—Impossibility of Laying Down o Fixed Rule.-—It may be that, as a, question of fact, circumstances exist when to board a moving train would not be negligence, for other independent forces may intervene, set in motion by causes not connected with the moving train, unforeseen by the person injured, and in the absence of which there might have been, in the exercise of ordinary care, entire safety in boarding such train. The question is always whether the act is one which is consistent with prudence under all the circumstances of the particular case.</p> <p>3. Same,—Act of a Person in Boarding a Moving Train.— If the act of a person in boarding a moving train, under the circumstances of this case, is the superseding cause of the injury, then it is not a question of negligence per se, as applied to the doctrine of contributory negligence, but is a question of causation merely.</p> <p>4. Instructions—As to Boarding a Moving Ti'ain.—A. declaration, in effect, that the plaintiff was directed to get upon the train, and while endeavoring to do so without unnecessary delay, and with reasonable care, the servants of the company negligently caused the train to be started as the plaintiff was in the act of getting thereon, and before he had sufficient time to do so, and, being partly upon the train, was driven against some heavy obstruction, knocked off and fell under the wheels of the train and injured, will not justify the trial court in refusing to instruct the jury that, if the injury was caused by his attempt to board the moving train, their verdict should be for the defendant.</p> <p>5. Same—When a Question of Causation—Boarding a Moving Train. ■—In an action against a railroad company for personal injuries, an instruction that if the injury was caused by the attempt of the plaintiff to board the moving train the verdict should be for the defendant, is independent of the question of contributory negligence, and presents the separate and distinct proposition, disconnected from any supposed negligence on the part of the defendant, that the injury was caused by such act of the plaintiff, and it follows, as a logical sequence, that the injury could not have been caused by the alleged negligence of the defendant.</p> <p>6. Same—Singling Out Events Preceding the Accident and Giving Them Undue Prominence.—In an action against a railroad company for personal injuries, the singling out, in an instruction for the plaintiff, of the evidence of events preceding the accident, thereby giving them undue prominence, is erroneous.</p> <p>7. Same—Should be Confined to the Negligence Declared Upon.—In actions against railroad companies for personal injuries the instructions. like the evidence, should be confined to the negligence charged in the declaration.</p>

<p>1. Ordinances—Essentials of the Clerk's Certificate, to Entitle Them to Admission in Evidence.—An ordinance of a village, in pamphlet form, with a certificate of the village clerk, under his hand and the corporate seal of the village, at the end, that “ an ordinance for the revising and consolidating of the general ordinances of the village was passed and adopted by the president and board of trustees of said village, on," etc., “that the same was duly signed and approved by the president of said village and deposited in the office of the village clerk,” and, “that the foregoing is a true and correct copy of the same and is printed in book or pamphlet form under the directions and by the authority of the president and board of trustees of said village on the day and year aforesaid,” is properly admitted in evidence over a general objection.</p> <p>2. Same—Form of, Regulating the Speed of Trains.—An ordinance providing that “no railroad company, or corporation, railroad engineer, conductor, or other person, shall run or cause to be run any locomotive or freight car, or any train of freight cars, upon or along any railroad track, side track or switch, within the corporate limits of the village of-, at a greater rate of speed than six miles per hour,” is in legal form sufficient for the purpose, of regulating the speed of trains within the corporate limits of such village.</p> <p>3. Appellate Court Practice—Special Objections to the Admission of Evidence Can Not Be Made for the First Time in the Appellate Court. —Where only a general objection has been made in the trial court to the admission in evidence of a book of ordinances, a special objection to its admission can not be made for the first time in the Appalíate Court, for the reason that such special objection might have been obviated if it had been made in apt time in the trial court.</p> <p>4. Practice— rVhere a Party Procures Leave to Amend His Declaration and Omits to Do So.—Where a plaintiff procured leave of the court and promised to amend his declaration for the purpose of obtaining a more favorable ruling on the admission of evidence, and after the admission of such evidence failed to make the promised amendment, it ivas held that the promised amendment should have been made, but if the declaration as it was, was sufficient to give notice to the defendant of the intent to produce the evidence in question, and the failure worked no prejudice to him, the omission to make the promised amendment is not reversible error.</p> <p>5. Railroads—Running Trains at a Greater Rate of Speed than Allowed by Ordinances, is Prima Facie Negligence.—The fact that the servants of a railroad company ran its trains at a greater rate of speed than that allowed by ordinance, within the corporate limits of an incorporated village, is sufficient to constitute negligence, prima facie.</p>

<p>1. Instructions—Where the Points in Issue Are Sharply Contested. —Where the points in issue are sharply contested, the rulings upon the admission of evidence and the instructions of thg court should be accurate.</p> <p>2. Same—Not to Give a Single Fact Undue Prominence.—Giving an instruction which singles out one fact and gives it undue prominence is prejudicial error.</p> <p>3. Same—Boarding a Moving Train.—In an action against a railroad company for personal injuries, it is error to refuse an instruction to the effect that if the jury believe from the evidence that the injury to the plaintiff was caused by her attempt to board a moving train their verdict should be for the defendant.</p> <p>4. Evidence—0/ Conversations Between an Injured Passenger, as Plaintiff, and the Conductor of the Train—When Admissible.—In an action against a railroad company for personal injuries, where the contention of the plaintiff is that she was directed by the conductor to get off at a station at which the train stopped and purchase a ticket, it not being claimed that the conductor was not within the strict line of his authority in enforcing the payment of fare, evidence of the conversation between her and the conductor in regard to such direction is admissible.</p> <p>5. Same— Of Conversations Between an Injured Passenger, as Plaintiff, and a Brakeman of the Train on Which She Was Injured.—In an action against a railroad company for personal injuries, where one of the points of contention is the holding of the train at a station where it made a regular stop, for her to alight and procure a ticket, and she had previously testified that she had been directed by the conductor to alight for that purpose and told that the train would wait for her, evidence of a conversation between her and a brakeman of the train about holding it for her, in which she asked him to be assured of the fact, is admissible.</p> <p>6. Railroads—As Carriers of Passengers—Duty Toward Patrons.— Where the employes of a railroad company" know or have notice that it is the purpose of a person to take passage upon their train and such person presents liimself under such circumstances that he can be reasonably accepted as a passenger, it is the duty of the company to accept him as such and give him a reasonable time and opportunity to get upon the train, the passenger himself also using reasonable care and expedition in that respect.</p> <p>7. Same—When it is Negligence to Mount a Moving Train.—There is no rule of law in this State which declares that the act of boarding a moving train is negligence in itself. Such an act may be, and sometimes is, negligence per se, but whether it is so or not in a particular case is a question of fact to be decided by a jury under proper instructions, unless the act sought to be established as constituting negligence per se is such that all fair and reasonable minds would agree that it should be so characterized.</p> <p>8. Negligence—Mounting a Moving Train.—Circumstances may exist when to board a moving train would not be negligence, for other independent forces may intervene, set in motion by causes not connected with the moving train, unforeseen by the person injured, and in the absence of which there might, in the exercise of ordinary care, be entire safety,</p> <p>9. Negligence and Ordinary Care—Questions of Fact and Not of Law.—It is a reasonable rule, existing from the necessities and varieties of human conduct, that what is or is not negligence, or what is or is not ordinary care, should be left to a jury to be tested as a question of fact under the evidence of each particular case and by the proper rules of law.</p>

<p>1. Practice—Where Leading Questions Are Proper.—As a general rule, a party to a suit is prohibited from asking leading questions of his own witness; but when the evident purpose of his inquiry is to merely negative a fact or circumstance, a leading question is sometimes proper, and forms an exception to the general rule; as, where a witness is called to contradict another who had stated that such and such expressions were used, or the like, counsel are sometimes permitted to ask whether some particular expressions were used, or things said, instead of asking the witness to state what was said.</p> <p>3. Same—Under What Circumstances Leading Questions May be Ashed—Discretion of the Court.—Under what circumstances leading questions may be put, is a matter resting in the sound discretion of the court, and is not a matter which can be assigned for error.</p> <p>3. Same—Recalling a Witness for Further Cross-Examination.— Where a witness has already answered substantially the same questions on his first cross-examination, the court may properly refuse to allow him to be recalled for further cross-examination upon the same matter.</p> <p>4. Fellow-Servants—Trackmen and Trainmen Are Not.—Track-men are not the fellow-servants of trainmen, as they do not co-operate in the same line of employment.</p> <p>5. Railroads—Can Not Delegate to Fellow-Servants Their Duty to Furnish a Safe Track for Their Trainmen.—It is the duty of a railroad company to furnish a safe track for its trainmen, and to use reasonable care to keep it in such condition, and this duty it can not delegate to fellow-servants of the trainmen, and be released from liability merely because the persons to whom it delegated such duty were negligent.</p> <p>6. Same—Negligence in Violating .Their Own Rules.—Where the rules of a railroad company require its trackmen “ to use the utmost caution at all times, and when a rail is to be taken out of the track, or other work to be done which will render the track impassable, a flagman or red flag must be stationed in each direction 2,000 yards, or forty telegraph poles, distant, and torpedoes placed upon the rail, two lengths apart, on the engineer’s side, or if in the vicinity of descending grades, the distance must be doubled,” a failure to comply with the requirements of such rule by the trackmen will render the company liable for injuries resulting from such failure.</p> <p>7. Same—Liability Where the Servants of the Company Are Sent to Perform a Duty and Fail.—Where the rules of a railroad company require its trackmen, upon removing a rail from the track or upon doing other work which will render the track impassable, to station a flagman or place a red flag in each direction 2,000 yards, etc., if, upon removing a rail, the trackmen fail to comply with the requirements of the rule the company will be liable for injuries resulting from such failure.</p>

<p>I. Judgments—Ora Verdicts Rendered upon Conflicting Evidence.— Where the evidence is conflicting upon the vital questions in issue and the jury have been properly instructed, a judgment rendered upon their verdict which comes to the Appellate Court with the approval of the trial judge will not be disturbed.</p>

<p>Claim in Probate, for services rendered. Appeal iron the Circuit Court of Shelby County; the Hon. William M. Farmer, Judge, presiding.</p>

<p>1. Appellate Court Practice—Finding Issues of Fact Different from the Finding of the Jury.— The Appellate Court is vested with the power to review questions of fact and should not decline to express its judgment against the finding of the jury when it appears that such finding is palpably against the evidence of the case.</p>

<p>-1. Master and Servant—The Servant Assumes Only the Ordinary Bisks of the Employment.—It is only the ordinary risks incident to an employment that the servant assumes.</p> <p>2. Same—What is Not an Ordinary Bisk of an Employment.—A ■ bricklayer, in the employ of contractors occupied in constructing the walls of a coal vault which extended out from the main side of a building which they were erecting, to the line of the stone curbing of the street in front of it, upon the assurance of the foreman that there was no danger of the curbing stone falling, undertook to lay the brick of the outer wall of such vault and while so doing was injured by the falling of the curbstone upon him. .It was held that the risk of the stone’s falling was not one of the ordinary risks of his employment, and in this case was not assumed by him when he entered into the employment of such contractors.</p>

<p>Special Action on the Case, for money lost at gambling. Appeal from the City Court of Mattoon; the Hon. James F. Hughes, Judge, presiding.</p>

<p>- Action to Settle Disputes Between Towns, on apportionment of property. Error to the County Court of Vermilion County; the Hon. M. W. Thompson, Judge, presiding.</p>

<p>1. Schools—Power of Directors to Discharge Teachers.—School directors are justified in discharging teachers when, for sufficient cause, the best interests of the school require it.</p> <p>2. Same—What is a Sufficient Cause for Discharging a Teacher.— One of the male pupils asked his teacher if he had said that he (the pupil) was the dullest scholar in the school. After some colloquy between them about the matter, the teacher, in anger, struck the pupil on the head so violently that he fell against a seat in the room and the teacher seized him and forcibly put him into the seat. The directors investigated the matter in the presence of the school and for this purpose examined some of the pupils; the teacher, being present, interrupted some of the pupils during their answers to inquiries by the directors and called them liars. It was held that these circumstances demonstrated the fact that he did not possess the requisite qualities of temper, discretion and fortitude of a good teacher and that the directors were justified in discharging him.</p> <p>3. Same—Official Business to be Transacted at Meetings.—The statute (Chap. 122, Art. V, Sec. 19, Hurd’s Edition of 1899, page 1542) provides that no official business shall be transacted except at a regular or special meeting, and that the directors shall not pay any public funds to a teacher unless such teacher shall have kept and furnished them with a schedule as required by law.</p>

<p>1. Trials by the Court—Findings of the Judge, When Not to be Disturbed.—In a trial before the court without a jury, where there is an unrecoucilable conflict in the evidence, the finding of the trial will not be disturbed, unless it appears from the evidence itself, that, with his advantage for observing the witnesses and their manner of testifying, the judge has come to an erroneous conclusion from passion or prejudice.</p>

<p>Assumpsit, to recover money invested in options. Appeal from the Circuit Court of De Witt County; the Hon. William G. Cochrane, Judge, presiding.</p>

<p>1. Appellate Court Practice—Cosfs on Filing Additional Abstracts.—Where an additional abstract is properly filed by the appellee the court will direct that the cost of the same be taxed to the appellant.</p>

<p>1. Wills—Primary Object in Oonstruction.—The primary object in the construction of a will is to discover the intention of the testator, and when discovered to give effect to it.</p> <p>2. Same—Qualifying Clauses to be Construed in the Light of What Precedes Them.—Where a testator, after having bequeathed property to a son upon certain prescribed conditions, and those conditions having been fulfilled, and the property bequeathed having passed to and been received by such son, it would be a violation of the testator’s plain intention to infer that he designed to take it away again.</p> <p>3. Same—Reconciliation of Repugnant Clauses.—A construction by which the different clauses of a will are rendered repugnant to each other can not be sustained.</p>

<p>1. Employer and Employe—Remaining in the Employment After Promise to Repair.—Where an employe called the attention of his employer to the fact, that the place where he worked was not in a proper condition, telling him he would quit his employment unless it was repaired, and was told to get along the best he could and the place would be repaired as soon as possible, and such employe continued in such employment, and was injured shortly afterward in consequence of such condition, it was held that he did not lose his right to recover by remaining in the employment after such promise to repair.</p>

<p>Action for the "Violation of an Ordinance.—Appeal from the Circuit Court of McDonough County; the Hon. John W. Gray, Judge, presiding.</p>

<p>1. Bastardy—Discharge by a Justice of the Peace Does Not Bar Further Proceedings.—A discharge by a justice o£ the peace of a defendant in a bastardy proceeding is not a bar to a further proceeding for the same cause.</p> <p>3. Same—Binding Over the Defendant to the Circuit Court Eguivalent to a Discharge.—When a justice of the peace, by mistake or inadvertence, binds over the defendant to the Circuit instead of to the County Court, such binding is a mere nullity, as the Circuit Court has no jurisdiction to try the cause, and is in legal effect a discharge of the defendant.</p> <p>3. Practice—In Bastardy Proceedings—Making up the Issue.—It has never been the practice, under our statute, to require formal pleadings in bastardy cases, and where the court has before it the sworn complaint showing the complete character of the charge, and the record shows a plea of not guilty, it is sufficient.</p> <p>4. Same—Complaint in Bastardy—Verification.—A complaint in a bastardy case, if adopted by a justice of the peace, may properly be sworn to before a notary public.</p> <p>5. Same—Issue in Bastardy Cases—How Made Up.—Where a defendant in a bastardy case, when called upon to say whether he is guilty or not guilty, as complained against him, refuses to answer, the court may properly make up the issue by causing to be entered a plea of not guilty.</p> <p>6. Same—Waiver of Legal Rights by the Defendant.—The defendant in a bastardy proceeding before the County Court may waive his legal rights to cross-examine the complainant’s witnesses or to introduce evidence in his defense.</p> <p>7. Verdict—Cures Defects in the Complaint.—It is too late, after the return of the verdict in a bastardy proceeding, for the defendant to object to the form of the complaint; defects of this nature are cured by the verdict.</p>

<p>1. Statute op Limitations—Not to Be Raised by Demurrer.—When the fact appears on the face of the declaration that the cause of action sued upon is barred by the statute of limitations and no exceptions are alleged to prevent the running of the statute, in order to take advantage of the statute, under the practice in this State, the defendant must plead the matter by special plea.</p> <p>2. Pleading—Matters in Discharge or in Confession and Avoidance to be Affirmatively Pleaded.—In all actions of trespass, whether to the person, or to personal or real property, matters in discharge or in confession and avoidance of the action must be specially pleaded.</p> <p>3. Same—Statute of Limitations in Trespass to the Person.—The statute of limitations in actions of trespass to persons can not be raised by demurrer but must be specially pleaded.</p>

<p>Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. Ferdinand Bookw alter, Judge, presiding.</p>

<p>1. Intoxicating Liquors—What is Not a Sale to a Minor.—Several persons contributed a sum of money and sent a minor with it for beer, which he got and carried back to them. Held, that if the beer was sold to the minor as the agent of the persons contributing the money to buy it, there could be no conviction of the vendor for selling intoxicating liquors to minors.</p>

<p>1. Sureties—Agreements to Become so on Condition that Others Will Become Co-sureties—Promissory Notes.—Where a party signs a promissory note as surety for the principal maker, upon condition that another person will also sign such note as his co-surety, and the payee, with full knowledge of the fact, accepts the note without the signature of such other person, the party signing upon such condition is not liable on the note.</p> <p>2. Presumptions—When it is Error to Assume that a Presumption Prevails.—The law only presumes that all men are honest, until the evidence proves the contrary, and in cases where the burden of proof rests upon either party, it is because the presumptions of law or fact are against such party, and it is error to assume that a presumption prevails if there is evidence to rebut it.</p>

Action for a Penalty, for a failure to labor on the highways or pay commutation. Appeal fro'm the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding.

<p>1. Miner’s Liens.—Under the Act of 1895.—Under the act of 1895 entitled “ An act to protect laborers and miners for labor performed in developing and working coal mines ” (Laws of 1895, 242), eveiy laborer or miner who performs labor in opening and developing any coal mine, including sinking shafts, constructing slopes or drifts, mining coal and the like, is entitled to have a lien upon all the property, real and personal, of the person, firm or corporation owning, constructing or operating such mine, used in the construction or operation thereof, for tbe value of such labor, upon the same terms, with the same rights, and to be secured and enforced as mechanics’ liens are secured and enforced.</p> <p>2. Same—Goal Mines in the Hands of Receivers During the Period of Redemption Under Foreclosure Proceedings.—A receiver, appointed by the court on the petition of a purchaser, at a foreclosure sale, of such mine, during the period of the equity of redemption, has authority to operate and improve the mine in order to preserve it; to employ miners and agree to pay them out of the moneys made from such operating; and in case such moneys are not sufficient for that purpose, the effect will be to bind the mining plant with the lien given by the act of 1895 and make it liable for their services.</p>

<p>Trespass on the Case.—Appeal from the City Court of Mattoon; the Hon. Jambs F. Hughes, Judge, presiding.</p>

<p>Mandamus, to disconnect territory. Appeal from the Circuit Court of Cass County; the Hon. Thomas N. Meham, Judge, presiding.</p>

<p>Assumpsit, for money overpaid, etc. Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochrane, Judge, presiding.</p>

<p>Bill to Compel the Cancellation of a Mortgage.—Error to the Circuit Court of McDonough County; theHon. John A. Cray, Judge, presiding.</p>

<p>1. Verdicts—When Not to be Disturbed by an Appellate Tribunal. —Where the evidence is conflicting, and that of either side, standing alone, is sufficient to support the verdict, and there are no prejudicial rulings of the court upon the evidence or the instructions, an appellate tribunal will not disturb the finding on the ground that it is not supported by the evidence.</p>