Volume 97 — Illinois Appellate Court Reports

Assumpsit, on orders for the payment of money. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901,

<p>1. Administration of Estates — Power of the County Court to Appoint an Administrator Pro Tem. — In the administration of an estate, where a claim against the administrator has been inventoried and he becomes prima facie chargeable with the amount of' the demand, upon his petition the County or Probate Court will be justified in appointing some competent person to act as administrator pro tem., with authority to bring suit against the administrator as an individual and prosecute it to final judgment.</p> <p>2. Estoppel — To Question the Appointment of an Administrator Pro Tem. — When a party is appointed administrator pro 'tem., at the instance and upon the motion of parties interested in the estate, by a court having general jurisdiction over the administration of the estate, and such appointment is improper or irregular, any of the parties interested in the estate may move the court to set aside the order of appointment; but if they fail to do so in apt time, they will be estopped to say that the appointment was not properly made.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1901.

<p>Assumpsit. — Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1901.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the May term, 1901.

<p>1. Pleading — A Familiar Rule. — It is a familiar rule of pleading that a bad replication is good enough for a bad plea, and a demurrer to it should be carried back and sustained to the plea.</p> <p>2. Same — General Rule of Constriction. — 4 pleading should always be construed most strongly against the party pleading it.</p> <p>3. Same — Unnecessary Prolixity in Pleading Not to be Encouraged. —To file a special replication to a plea, the abstract of the record of which occupies seven printed pages, where a general replication would have been sufficient, is an incumbrance to the files and records of the court and is a practice not to be commended.</p>

Trespass on the Case, for personal injuries. Appeal from the. Circuit Court of McLean County; the Hon. Golostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.

Assumpsit, for the services of a special train. Appeal .from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.

Trespass on the Case. — Death from wrongful act. Appeal from the Circuit Court of Adams County; the Hon. John A. Broady, Judge, presiding. Heard in this court at the Máy term, 1901.

<p>1. Judgments in Bax. — Judgments in Replevin, When. — A bank received a promissory note for collection and brought a suit upon it, in its own name, before a justice of the peace, upon which the makers of the note sued out a writ of replevin and obtained possession of it. The real owner of the note authorized an attorney to appear for him and defend the action. The justice gave judgment in the replevin suit that the makers of the note were the owners of the note and rendered judgment in their favor for its possession, which not being appealed from, became final. Subsequently the real owner of the note brought suit upon it in the Circuit Court. It was held, that the judgment of the justice not being appealed from, became the final adjudication of the issue as to the ownership of the note and was a bar to any further litigation upon it.</p>

<p>Assumpsit, for commissions. Appeal from the Circuit Court of Mc-Donough County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1901.</p>

Trespass on tlie Case, for personal injuries. Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1901.

<p>1. Gambling Contracts — KTo Recovery upon. — Where a contract is entered into in which money is advanced upon purchases of grain made upon the board-of trade, and it is not intended or expected by either party that any of the grain shall be delivered, but when the time for delivery arrives the matters are to be settled by the payment or receipt of differences between the contract price and the actual market price of the grain at the time fixed for delivery, such is a gambling contract and no recovery can be bad upon it.</p> <p>2. Appellate Court Practice — Costs of Additional Abstracts. — An appellee, who is justified in furnishing an additional abstract, will be entitled to have the costs of it taxed to the appellant.</p>

<p>Bill to Enjoin Encroachments. — Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>1." Exemptions — Description of Property in Schedules. — Persons scheduling property for the purpose of claiming their exemptions under executions, should describe it so that the same can be identified by the appraisers and the officer.</p>

<p>Trover. — Appeal from the Circuit Court of Ford County: the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>Trover. — Appeal from the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the May term, 1901.</p>

Assumpsit, for work, labor and services. Appeal from the County Court of Moultrie County; the Hon. John D. Purvis, Judge, presiding. Heard in this court at the May term, 1901.

<p>1. Chancery Practice — Effect of Sworn Answers. — Where a complainant in chancery calls for an answer under oath, he gives to the defendant the advantage of a sworn answer, which is to be overcome by at least two witnesses, or what is equivalent to the testimony of two witnesses.</p>

<p>1. Construction of Statutes — Ms to Offenses Committed Against a Former Law. — No law is tobe construed so as to repeal a former law, as to any offense committed against it, or as to any act done, penalty, forfeiture or punishment incurred, or right accrued or claim arising under it, or as to in any manner affect the same, except that legal proceedings thereafter shall conform so far as practicable to the laws in force at the time such proceedings are had. (R. S., Chap. 181, Sec. 4, Hurd’s Ed. 1899, p. 1650.)</p> <p>2. Same — Acts Relating to the Revenue. — The provisions of section fifty-six of the act of 1872 (R. S. 1874, p. 868) relating to making false schedules, so far as such provisions had been violated previous to the taking effect of the act of 1898, are enforceable under the provisions of section four of chapter 131 R. S. (Hurd’s Ed. 1899, p. 1650).</p> <p>3. Limitations — In Suits Prosecuted by the People. — Where the people in their sovereign capacity prosecute a suit, they occupy the same position as regards the statute of limitations as an individual citizen; the State must accept the same position on the same terms as the individual.</p> <p>4. Same — How the Statute is to be Pleaded. — When the declaration shows on its face that the time of the statute has run and at the same time discloses that the case is not within any of the exceptions of the statute when applied to the particular cause of action stated, the question of limitations may be raised by demurrer.</p> <p>5. Forms — Declaration in an Action on the Complaint of a County to Recover a Penalty for Giving a False Schedule (Revenue Act).</p> <p>State of Illinois, / In the Circuit Court, to the April term, A. D. County of Pike, j 1899.</p> <p>The People of the State of Illinois on complaint of the County 1 of Pike by its Board of Supervisors, {_ Isaac Strauss. j</p> <p>The People of the State of Illinois, on the complaint of the County of Pike, in said State, here made by its board of supervisors, by A. Clay Williams, State’s Attorney for said county, and William Mumford, attorneys for plaintiff, complain of the defendant, Isaac Strauss, that he render unto the plaintiff the sum of $2,000, debt.</p> <p>For that, whereas, heretofore, to wit, on and before the first day of May, A. D. 1898, and continuously thereafter, until, to wit, on and after the first day of July, A. D. 1898, in the town of Pittsfield, at the county aforesaid, he, the said defendant, and one Jacob Strauss, constituted and composed a firm and partnership, then and there doing' business under the firm name and style of Strauss & Bro., and were by that name then commonly known and called.</p> <p>And, whereas, during all said times, said firm and partnership did business and had its principal office and place of business at said town of Pittsfield, in said county.</p> <p>And, whereas, said firm and partnership did, on the first day of May, A. D. 1898, at the town of Pittsfield, aforesaid, own, have, possess and control large amounts and sums of credits, to wit, namely, the following described promissory notes, to wit:</p> <p>DATED. DUE. AMOUNT. EXECUTED BY. TO WHOM PAYABLE. Oct. 1, 1887. Oct. 1, 1889. $176.58. Challes E. Atwood. Dorcas Atwood. Strauss & Bro. Dec. 15,1888. Dec. 15,1893. $300.00. Henry Beard. Strauss & Bro. Mar. 29,1898. Mar. 29,1892. $500.00. Henry Troutner.</p> <p>* * * * * * * * #</p> <p>and certain other personal property, which were then and there and thereafter subject, and legally liable to be assessed and taxed in said town for said year, over and in excess of all legal deductions and statutory exemptions, on any and all accounts.</p> <p>And the plaintiff, on the complaint aforesaid, avers that it then and there and thereafter became and was the duty of said defendant, as a member of said firm and partnership, to make out and deliver to the assessor of said town-, for said year, upon being called on by the assessor for that purpose, a true and correct list and a schedule of the amounts of all of the said credits and other personal property owned, had, possessed and controlled by said firm and partnership, on the first day of May, A. D. 1898, and subject and legally liable to be assessed for the taxes of that year, over and in excess of all statutory exemptions from assessment and legal deductions. Plaintiffs aver that on, to wit, the first day of June, A. D. 1898, one James Carroll was then and there the acting assessor in and fpr said town, and that on said day said assessor did then and there call upon the defendant and did then and there require of him, as a member of said firm and partnership, that he make out a true and correct statement of the taxable property, according to the statute, of said firm and partnership.</p> <p>Yet, the plaintiff, on the complaint aforesaid, avers that said defendant did not, nor did any one for him, make out and deliver to the assessor such true and correct list and schedule of the amounts of said credits, and other personal property, owned, had, possessed and controlled by said firm and partnership on the first day of May, A. D. 1898, at said town, which were subject and legally liable to be assessed and taxed in said town, for said year, over and in excess of all legal deductions, and statutory exemptions, but on the contrary, said defendant did, to wit, on June first, A. D. 1898, at said town, make out under oath and deliver to the assessor a certain false and fraudulent list, schedule and statement, and none other, as and of the amounts of the credits and other personal property of said firm and partnership owned, had, possessed and controlled by said firm and partnership, on the first day of May, A. D. 1898, and subject and legally liable to be then assessed and taxed for said year, and as 'and of the credits and other personal property for the said year, over and in excess of all statutory exemptions, and legal deductions, in this, that said defendant, at the town aforesaid, on, to wit, June first, 1808, made and delivered to the assessor of such town, for said year, the said false and fraudulent list and schedule and statement wherein and whereby the said defendant falsely and fraudulently did list, schedule and state, that said firm and partnership did not on May 1, A.D. 1898, own, have, possess and control, at said town, subject and legally liable to be assessed and taxed in said town for said year, over and in excess of all statutory exemptions and legal deductions, any credits of any kind or character, other than bank, bankers’, etc., whereas, in truth and in fact, plaintiff, on the complaint aforesaid, avers and charges that on May first, A. D. 1898, at the town aforesaid, said firm and partnership did own, have, control and possess, subject and legally liable to be assessed and taxed in said town, for said year, over and in excess of all statutory exemptions and legal deductions, said credits other than bank, bankers', etc., in a large sum and amount, to wit, in the sum and amount and of the value of $100,000.</p> <p>Wherefore, the plaintiff, on the complaint aforesaid, avers and says that an action hath accrued to the plaintiff, by virtue of the statute in such case made and provided, to have and recover of and from the defendant, Isaac Strauss, the sum of $3,000; and therefore the plaintiff, on the complaint aforesaid, brings here its suit, etc.</p>

<p>1. Mandamus — To Disconnect Territory — Form of the Petition. — The court in its opinion sets out the petition for the disconnection of the appellee’s lands from the city of Mattoon in this case, and holds it suffic ient, in substance, to warrant the court in overruling a general demurrer to it and awarding the writ as prayed for.</p>

<p>1. Corporations — Exercise of Express and Implied Powers. — The character of a corporation, read in the light of general laws which are applicable to it, is the measure of its powers, and the enumeration of those powers implies the exclusion of all others not fairly incidental. All contracts made by a corporation beyond the scope of those powers are unlawful and void, and no action c,an be maintained upon them in the courts,</p> <p>2. National Banks — Derive Their Powers from the Federal Statutes. —The United States statutes relative to national banks, constitute the authority of such banks, and they can not rightfully exercise any powers except those expressly granted or which are incidental to carrying on the business for which they are established.</p> <p>3. Same — No Power to Become Surety upon a Replevin Bond. — The execution of a bond by a national bank as surety in a replevin suit is beyond its powers and void.</p>

<p>1. Final Judgment — In Mandamus Cases.— The sustaining of a demurrer to a petition for a mandamus, dismissing it and giving final judgment refusing the writ, is such a final judgment as may be reviewed in this court upon a writ of error.</p>

<p>1. Evidence — Admissiblity of, Under Pleas of Justification in Trespass. — Justification as a defense must be pleaded before evidence of justification is admissible.</p> <p>2. Same — Admissibility of, in Rebuttal, Discretionary. — The admission of evidence in rebuttal is within the sound discretion of the court.</p> <p>8. Same — To Explain Plats of Streets. — When the plat of a city does not contain a statement of the width of a street and is in other respects defective as statutory proof of a dedication at common law, supplementary evidence tending to explain it and to show a dedication at common law, is competent.</p> <p>4. Burden of Proof — Justification in Trespass. — The burden of proof is always upon the party holding the affirmative in presenting an issue; so in trespass, the plaintiff has the burden of proof upon the issues presented by his declaration; and where the defendant pleads a justification he tenders a new and different issue and assumes the burden of proving it.</p>

<p>Assumpsit, on coupons. Appeal from the Circuit Court of Calhoun County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>1. Mandamus — A Olear Right to the Writ Must Be Shown. — In proceedings for mandamus, a clear right must be shown before the peremptory writ will be awarded.</p> <p>2. Same — The Act of May 29,1879, Does Not Apply to Municipalities Like the Town of Normal. — The act of May 39, 1819, entitled “An act in relation to the disconnection of territory from cities and villages,” has no reference to a municipality organized like the town of Normal. It neither mentions nor refers to such towns.</p> <p>3. Appellate Court — Scope of its Powers. — The Appellate Court is permitted only to review the final judgments of the trial courts and their rulings'leading up to such final judgments, and can determine only whether there was error at the time of the rendition of such judgments.</p>

<p>1. Common Law — Decisions, When Applicable as Precedents Under Statutes. — When a statutory provision introduces no new principle but is merely affirmative of the common law, decisions of the common law are applicable as precedents after the enactment of the statute.</p> <p>2. Bills of Discovery— Wh 'em They Will Lie to Beach the Salary of a Public Officer. — When a court of law is incompetent to reach the property of a defendant in execution, either by reason of its peculiar character, as the salary of a public officer, or by inability to discover it, a bill in equity against such defendant for a discovery, is the only adequate remedy to reach the property.</p>

<p>Replevin. —Appeal from the County Court of McLean County; the Hon. Roland A. Russell, Judge, presiding. Heard in this court at the May term, 1901.</p>

Trespass on the Case, for damage to city lots by cutting down the grade of a street. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this ■ court at the May term, 1901.

<p>1. Evidence — When Incompetent in-Proceedings by Distress for Rent. — In a proceeding by distress against a tenant for a breach of a lease in which he had covenanted not to remove any of the grain grown on the land, or to sell the same or any part of it, until the rent was fully paid, it is error to permit him to testify, over the objection of the landlord, that “thereason he hauled off the corn at night was that he was hungry and needed money, and it was the only way he could get money to buy anything to eat,” as such evidence is calculated to unduly arouse the sympathies of the jury in favor of the tenant.</p> <p>2. Same — As to the Lessor's Failure to Repair Fences and Cut Weeds. —In a proceeding against a tenant for a failure to comply with the provisions of a lease requiring him to keep “ all fences in good repair and to build such new ones as might be needed, the lessor furnishing the rails, posts and such other material in the timber, and to keep the land freed from weeds,” to permit the tenant, over the objection of the lessor, to show that he (the lessor) never rebuilt or repaired the fences or cut the weeds on the demised premises as the tenant should have done according to the provisions of the lease, is improper and prejudicial to the landlord.</p> <p>3. Instructions — In Proceedings by Distress for Rent. — In a proceeding by distress for rent, it is error to instruct the jury that if they believe from the evidence that the plaintiff, after leasing the premises to the defendant and before the expiration of the term, without the consent of the defendant, leased a part of the premises to another party, and without the consent of the defendant deprived him of the possession of that part so leased to such other party, then in law the defendant was released from the payment of all rent accruing under the lease, notwithstanding he continued to occupy a portion of the demised premises after that time, where the evidence shows that the defendant requested such leasing and surrendered that part of the premises before it was let to such other party.</p> <p>4. Same — As to Estoppel by Surrender — Distress for Rent. — In a proceeding by distress against a tenant for a failure to keep the covenants of a lease under seal, an instruction that if the jury should believe from the evidence that during the term of the lease in question the defendant voluntarily surrendered to the plaintiff the possession of any portion of the premises described in said lease, and that the plaintiff consented to such surrender, either by express words or by acts of control over such portion of said premises, then and in that event the plaintiff would be estopped from recovering any rent of the premises 'so surrendered, and would be estopped from claiming any damages for a breach of any of the terms of said lease pertaining to the portion of said demised premises so surrendered, is proper, and should be given.</p> <p>5. Same — As to a Surrender Where the Lease Is Under Seal.- — In a proceeding against a tenant by "distress, an instruction that ’under the law the terms of the lease could not be changed or varied except by a written instrument under seal and' signed by the parties, and even though the jury might believe' from the evidence that a verbal agreement was made between the lessor and the lessee by which the lessor was to take the remainder of the land, except that put in com by the lessee, and changing the terms of the lease, such verbal agreement is not binding in law and should not be considered by the jury in arriving at their verdict in the case, is properly refused, where the evidence tends to show that there had been a surrender of a portion of the demised premises.</p>

<p>Assumpsit, on quantum meruit. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1901.</p>

<p>1. Appellate Court Jurisdiction— Where a Franchise is Involved. —Any judgment which can properly be rendered in a case where this court is called upon to determine whether an alleged franchise does in fact and in law exist, and where the litigation has no other aim or purpose, a franchise is involved.</p> <p>2. Franchise — Defined.—The privilege or right to be a body politic and corporate, is a franchise.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the February term, 1901.

<p>1. Trials — By the Court Without a Jury — Force and Effect of the Finding. — Where a jury is waived and the trial is by the court, and oral testimony is heard and there are some contested issues of fact and some conflicting evidence, the finding of the court as to the facts has the same force and effect as the verdict of a jury, and will not be disturbed by the Appellate Court, unless the finding is so manifestly against the weight of the evidence as to indicate partiality, prejudice, passion or mistake.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.

<p>Assumpsit. — Appeal from the Circuit Court of Lawrence County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1901.</p>

Trespass on the Case. — Death from negligent act. Appeal from the Circuit Court of Madison County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the August term, 1900.

Assumpsit, for goods sold and delivered. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.

<p>1. Instructions — Based upon the Allegations of the Declaration.— In an action for damages resulting from the death of a person from negligence, when a general demurrer to the declaration is overruled and the defendant pleads over, it is not error to instruct the jury, if they believe from the evidence that the deceased, while in the exercise of ordinary care, lost his life through the negligence of the defendant as charged in the declaration, the plaintiff is entitled to recover.</p> <p>2. Expert Witnesses — IVho Are Competent as Smc/i. — Persons who have experience in excavating the earth and in protecting themselves against its caving, may have such a peculiar knowledge of the character of soils and of the best methods of protection, not acquired by common experience and observation, as will render them competent as expert witnesses.</p> <p>3. Master and Servant — When a Safer Mode of Doing the Business Might Have Been Adopted. — If a servant, knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he can not maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.</p>

<p>Prosecution for a Failure to Pay a Poll Tax. — Appeal from the Circuit Court of Randolph County; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the February term, 1901.</p>

Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding, Heard in this court at the February term, 1901.

<p>1. Fraudulent Conveyances — What are Not to he Regarded as Such. — A father owned land, and prior to the rendition of a judgment against him he sold it to his sons'and executed and delivered to them a bond for a deed of it which was duly recorded and possession of it taken by the sons prior to the recovery of the judgment against the father. They agreed to pay him for the land as the purchase price of it the sum of $6,000. There was no evidence that the land was worth more than $6,000, or that the father did not have an abundance of property left to pay his debts after conveying the land in question to his sons. Held, that the conveyance was not fraudulent.</p>

<p>1. Statutes — Canora of Construction — Noscitur a Sociis. — If general words follow an enumeration of particular cases in a statute such general words are held to apply only to cases of the same kind.</p> <p>2. Same — Construction of Section 20, Chapter 121, JR. S., Roads and Bridges. — Section 20 of Chapter 121, R. S., entitled “ Roads and Bridges ” (Hurd’s Ed. 1899, p. 1472), enlarges the powers of the commissioners of highways so that they are not only authorized to build bridges but other distinct and expensive works on the road.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Williamson County; the Hon. Edmund D. Youngblood, Judge, presiding. Heard in this court at the August term, 1901.

Injunction, to restrain the collection of a judgment at law. Error to the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1900.

<p>1. Appellate Court Practiob — Objections Made to the Admission of Evidence to be "Shown by the Abstract. — Objections made to the admission of improper evidence must be preserved in the record and shown by the abstract.</p> <p>2. Contracts — Buie of Construction. — Parties have a right to make their agreements in such language as they may choose to use, and it is the duty of the courts in construing them, even though claimed-to be undertakings to answer for the defaults of others, to give effect, if possible, to every word used in them.</p>

Trespass on the Case. — Death from negligent act. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1900.

<p>1. Appellate Court Jurisdiction— Where a Freehold is Involved. —Where the question between the appellant and the appellee is one involving the title to lands, a freehold is necessarily involved and the Appellate Court can not do otherwise than to dismiss the appeal.</p> <p>2. Freehold — When Involved Within the Meaning of the Constitution. — A freehold is involved within the meaning of the constitution and statute, where the necessary result of the judgment is that one party gains and the other loses a freehold estate, or where the title is so put in issue by the pleadings that the determination of the case necessarily requires a decision of such issue.</p> <p>3. Same — When Involved in a Proceeding in Chancery. — A. proceeding by a bill in chancery to transfer the legal ‘title to real estate from one person to another, involves a freehold; as where a bill is filed by a trustee in bankruptcy to set aside a fraudulent conveyance, alleged'to have been executed by the bankrupt.</p> <p>4. Same — Poiver of the Appellate Court to Investigate the Question. —The Appellate Court has jurisdiction to investigate the question as to whether a freehold is in fact involved in a pending litigation, and having determined the question in the affirmative, its jurisdiction over the case ceases with its order of dismissal.</p>

<p>Replevin. — Appeal from the Circuit Court of Pope County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the August term, 1901.</p>

Suit for Royalties, under a mining lease. Appeal from the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the August term, 1900. Rehearing denied.

<p>1. Sidewalks — Knowledge of Defects Does Not Establish Negligence per se. — Knowledge of defects in a sidewalk by a person before he goes upon it and is injured, does not, of itself, establish negligence on the part of the person injured.</p> <p>2. Same — Knowledge of Defects a Part of the Things to be Considered. — The knowledge of a person injured, by defects in a sidewalk, of its condition when he attempts to go upon it, is one of the circumstances to be considered by the jury in determining whether such person was, at the time of his injury, in the exercise of ordinary care for his own safety.</p> <p>3. Same — Right to Pass Over Defective Walks. — While a person, as an unqualified legal proposition, has neither the absolute right to pass over a sidewalk which he knows to be defective, nor is he bound to take another route to his home, and for the court to hold such person guilty of such negligence in taking a route home over a sidewalk which he knows to be defective, or in looking up at the windows of adjacent buildings as he passes along over such walk, as would deprive him of a right to recover for an injury received, would be to exercise a power .belonging to the jury which tried the case.</p> <p>4. Instructions — Unnecessary to Repeat in Each Instruction the Words, “if the Jury Believe from the Evidence.” — When the trial court, in an instruction, tells the jury “ if they believe from the evidence,” etc., it is unnecessary to repeat the words in the same instructions, for it is an ancient and wise saying that “ Many words darken speech.”</p>

Assumpsit, to recover damages for delay in furnishing a car for the shipment of stock. Appeal from the Circuit Court of Saline County; the Hon. Alonzo it. Vickers, Judge, presiding. Heard in this court at the February term, 1901.

<p>Bill for an Injunction. — Error to the Circuit Court of Randolph County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the February term, 1901.</p>

Assumpsit, for money paid, etc. Appeal from the Circuit Court of Madison County; the Hon. William Hartzbll, Judge, presiding. Heard in this court at the February term, 1901.

Mandamus, to compel the commissioners of highways to open a new road. Appeal from the Circuit Court of Lawrence County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1901,

<p>Prosecution for Obstructing a Highway. — Appeal from the Circuit Court of Clinton County; the Hon. Samvel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.</p>

Trespass on the Case, — Damages from smoke, cinders, etc. Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. H. Harker, Judge, presiding. Heard in this court at the February term, 1901.

Assumpsit, for money had and received. Appeal from the Circuit Court of Marion County; the Hon. William M. Fabmeb, Judge, presiding. Heard in this court at the February term, 1901.

Debt, on the official bond of a justice of the peace. Error to the Circuit Court of Madison County; the Hon. William Hartzell, Judge, presiding. Heard in this court at the February term, 1901.

<p>Assumpsit, on promissory notes. Appeal from the Circuit Court of Jasper County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.</p>

Assumpsit, for money paid as surety. Appeal from the Circuit Court of Bond County; the Hon. William Harztell, Judge, presiding. Heard in this court at the February term, 1901.

Assumpsit, for work, labor and services. Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.

Assumpsit,, for goods sold, etc. Appeal from the Circuit Court of Clinton County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.

<p>1. Fraternal Insurance Associations— Construction of Contracts Making Officers of the Association Final Judges of Controversies. — It is competent for the members of fraternal insurance associations to contract that their rights as members shall depend upon the determination of a tribunal of their own choice, which shall be conclusive. But where it is sought to make certain officers of the association final judges of controversies arising between the association and its members, the courts will not give to the contract such a construction where it is possible to give it any other.</p> <p>2. Practice — On Overruling a Demurrer to a Declaration. — Where a defendant demurs to a declaration and his demurrer is overruled, he can either stand by his demurrer and suffer judgment to go against him, trusting to the higher court to sustain his position, or he can plead to the declaration and go to trial; but if he follows the latter course, he loses any rights he might have had under his demurrer if he had stood by it.</p> <p>3. Instructions — When to he Accurate. — Where there is evidence before the jury, pro and con, as to the controlling issues of fact in a case, and upon some material points the issue is close and doubtful, material inaccuracies in the instructions will constitute such, error as will call for a reversal.</p>

<p>Proceeding in the Nature and Effect of a Bill of Interpleader.— Appeal from the Circuit Court of Clinton County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.</p>

Suit in Equity, for the construction of a will. Appeal from the Circuit Court of Union County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1901.

<p>Attachment and Garnishee Proceedings. — Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.</p>

<p>1. Administration of Estates — No Privity Between Administrators Appointed in Different States. — When administration is granted in different States to different persons in respect to the same estate, no privity exists between such administrators.</p> <p>3. Same — Diligence of Creditors in Presenting Claims. — Under our statutes a person who proves his claim at the end of the second year after the letters of administration are granted, is considered in law as diligent as the person who proves his claim on the adjustment day.</p> <p>8." Same — Application of the Rule, No Privity Between the Administrations of Different States. — The rule that there is no privity between the administrators of. different States, merely goes to the extent of declaring that an administrator is only answerable to the court appointing him, and if there is an ancillary administration and the estate is solvent in that jurisdiction, the debts to creditors there will be paid there instead of sending them to the domicile, and that judgments recovered against a representative in one jurisdiction are not evidence against a representative holding by appointment in another.</p> <p>4. Same — The Administration at the Domicile is the Principal Administration. — The administration at the domicile is the principal administration and all others are but ancillary and more or less subservient thereto, either as a matter of comity or of positive right.</p> <p>5. Same — Distribution After Debts of Creditors in Ancillary Jurisdictions are Paid. — After the ancillary administrator has paid the debts of the local creditors, if the court appointing him orders distribution of the residue, such distribution will be made in accordance with the laws of the domicile.</p> <p>6. Same — Payment by a Non-resident Debtor' to a Domiciliary Administrator When a Good Defense to a Suit by the Ancillary Administrator. — A payment made by a non-resident debtor to a domiciliary administrator will be a good defense to a suit brought by an ancillary administrator appointed after such payment.</p> <p>7. Same — Domiciliary and Ancillary Administrators. — The domiciliary administrator succeeds to the title of all the decedent's personal estate wherever located, while the ancillary administrator’s title is limited to such assets as are within the jurisdiction appointing him.</p> <p>8. Same — Object of Ancillary Appointments — Solvent and Insolvent Estates. — The chief object of ancillary appointments is the protection of local creditors, and when these have been paid, it is the duty of the ancillary administrator to transmit the balance of the assets to the domiciliary administrator for disposition by the courts of the domicile; but this rule holds good only in case the estate as a whole is solvent; if insolvent, local creditors are only entitled to a pro rata dividend, measured by all assets and liabilities, although the ancillary administrator had sufficient funds in his hands to pay such creditors.</p> <p>9. Same — No Distinction Between Resident and Non-resident Creditors in this State. — The courts of this State permit non-resident as well as resident creditors to prove their claims against ancillary estates, leaving the question of the payment of such claims to be dealt with the question of when the solvency or insolvency of the estate is to be determined.</p> <p>10. Same — Postponement of Creditors Receiving Dividends from an Ancillary Administrator. — A person who proves up his claim in an ancillary jurisdiction and receives a dividend from the administrator there, is to be postponed to the extent of such dividend in the distribution of the assets in the principal administration, the entire estate being insolvent.</p>

Assumpsit, for use and occupation. Appeal from the County Court of Clay County; the Hon. John R. Bonney, Judge, presiding. Heard in this court at the February term, 1901.

Debt, upon the official bond of the warden of the Southern Penitentiary. Appeal from the Circuit Court of Clinton County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the February term, 1901.

<p>Debt,upon an official bond. Appeal.from the Circuit Court of Clinton County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the February term, 1901.</p>

Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.

Assumpsit, for balance of a salary. Appeal from the Circuit Court of Union County; the Hon. Joseph P. Rob arts, Judge, presiding. Heard in this court at the February term, 1901.

<p>1. Appellate Court Practice — Sufficiency of the Abstraef. — Where the admission of evidence in the adjustment of a claim in probate is assigned for error, but the abstract discloses neither objection to its admission nor exception to the action of the court below upon it, the assignment will not be considered by the Appellate Court.</p> <p>3. Same. — Technical Objections to the Form of the Judgment to be Made in the Trial Court. — Where a judgment entered in favor of a defendant estate on a plea of set-off, was “ that the defendant, the estate of O. E. N., deceased, etc,” instead of “the defendant,L. Z., administrator,etc., have etc.,” and noobjection was made in.the trial court to such c, form and no error assigned in regard to it, the informality is not before this court for review.</p> <p>3. Same — Statute of Limitations Can Not Be Raised for the First Time in the Appellate Court. — While it is not necessary to formally plead - the statute of limitations in courts where written pleadings are not required, still it must have been in some way interposed as a defense in the trial court. It can not be relied upon for the first time in an Appellate Court.</p> <p>4. Instructions — Errors in One Cured When the Whole Series Are Considered Together. — When there is a plea of set-off on file and undisposed of, an instruction as to the form of the verdict, not accurately drawn, and to some extent open to the criticism that it invades the province of the jury, if, when all the instructions are taken together and fairly considered, they leave the jury to decide the issues on both claim and set-off, the error is cured.</p> <p>5. Admissions — In Criminal Cases Not Applicable to Civil Cases.— Decisions in criminal cases to the effect that admissions alone are not sufficient to convict without proof of the corpus delicti are not available in civil cases.</p>

<p>Forcible Entry and Detainer. — Appeal from the Circuit Court of Monroe County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1961.</p>

<p>Replevin. — Appeal from the Circuit Court of St. Clair County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the February term, 1901.</p>

<p>Replevin. — Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.</p>

Trespass on the Case, for malicious prosecution. Appeal from the Circuit Court of Williamson County; the Hon. Alonzo K. Vickers, Judge, presiding. Heard in this court at the February term, 1901.

<p>Bill for an Injunction. — Error to the Circuit Court of Wayne County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the February term, 1901.</p>

Trespass oil the Case, for damages by fire. Appeal from the Circuit Court of Marion County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.

<p>Creditor’s Bill. — Appeal from the Circuit Court of Clay County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1901.</p>

<p>Appeal, from the Circuit Court of Union County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in this court at the February term, 1901.</p>

<p>Bill of Foreclosure. — Appeal from the Circuit Court of Richland County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the August term, 1901.</p>

<p>1. Fraternal Insurance — Different Classifications. — A person in a certain occupation was insured in a fraternal insurance association for the sum of $5,000, under a peculiar classification providing that in case he was injured or killed while engaged temporarily or otherwise in any occupation or work not classified, his indemnity or death benefit should be rated on the basis of the most hazardous occupation mentioned in the classification of risks. While engaged in an occupation classified as more hazardous than that in which he was engaged, at the time of the issuance of the policy, he received injui ies causing his death. It was held, that his beneficiary was entitled under the policy only to the amount of indemnity rated according to the classification of the occupation in which he was engaged at the time of his injury.</p>

Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.

<p>1. Appellate Court Practice — Effect of Filing an Additional Abstract, — Where the first abstract filed is not sufficient, but a subsequent one filed by the appellant is, and confesses the omissions of the first one, the court will, in this instance, consider the case upon its merits, not holding, however, that the subsequent compliance with the rule relating to abstracts relieves the appellant from its violation in the first instance.</p> <p>2. Waiver — Of a Demurrer by Pleading Over. — A party who fails to abide by his demurrer by joining issue after it is overruled, must be held to have waived his rights under the demurrer.</p> <p>3. Fraud — By Vendee — Presumption.—A party selling property is presumed to know whether the representations he affirmatively makes in respect to it, are true or false; if he knows them to be false it is a positive fraud.</p> <p>4. Same — Untrue Representations of Material Facts.— An untrue representation of a material fact as one’s own knowledge, or recklessly made, not knowing whether it is true or not, is a fraud.</p> <p>5. Same — Expressions of Opinion. — Where an opinion is designedly false, or an advantage is taken of a party in a manner which is clearly oppressive, without negligence on the part of such party, there may be a fraud, although the statement is in the form of an opinion.</p> <p>6. Same — Atóse Statements as to Values. — False statements as to the value of property sold when relied upon by the vendee is a representation of a fact and not an opinion.</p> <p>7. Practice — Where the Defense of a Failure of Consideration May Be Made. — Where a false statement is made, although the party contracting may not have relied wholly upon such statement, but in fact may have relied upon it in part, and would not have contracted without it, the defense of a failure of a consideration may be made.</p>

Assumpsit, for money had and received. Appeal from the Circuit Court of Fayette County; the Hon. William: M. Farmer, Judge, presiding. Heard in this court at the February term, 1901.

<p>Bill for Foreclosure and Cross-Bill for Belief. — Appeal from the Circuit Court of Clinton County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the February term, 1901.</p>

<p>1. Decrees — Of the Ohaneellor on Conflicting Evidence. — Where the evidence taken in open court is conflicting, but the chancellor sees and hears the various witnesses, his findings will not be disturbed on appeal, unless they appear to be clearly and palpably against the weight of the evidence.</p> <p>2. Same — Effect upon Persons Not Parties. — The interests of persons who are not parties to a proceeding in chancery, are not affected by any decree rendered by the court.</p>

<p>Assumpsit, on a policy of insurance. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1901.</p>

<p>Partition. — Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the August term, 1901.</p>

<p>Bill for an Injunction. — Appeal from the Circuit Court of Jasper County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the August term, 1901.</p>

<p>1. Riparian Rights —Former Decisions — Application of the Case of The City of Chicago v. Ward (169 Til. 392). — Where the allegations of a bill for an injunction disclose that the structure sought to be enjoined is neither within the lake front park, as at present existing, nor within the tract included by the proposed extension of it, but on the contrary, is outside the government breakwater and the harbor line established by the Federal government, the decision in the case of The City of Chicago v. Ward, 169 Ill. 392, has no application.</p> <p>2. Same — Upon Lake Michigan. — The rights of a riparian owner on Lake Michigan, as announced by our Supreme Court, are limited to the boundaries of his land extended, and consist only of the common law rights of access to the lake from his property, within its width, and to natural accretions.</p> <p>3. Riparian Owners — Rights of View. — No authority is cited in this case applicable to riparian rights of owners, which holds that a riparian right owner can protect his view over the water, except it may be in cases where he is the owner of the soil under the water to the center of a stream, and such authorities have no application to the owners of riparian rights upon Lake Michigan. 1</p> <p>4. Injunctions — Restraining Interference with Riparian Rights.— The builders of a structure which in no measure interferes with an owner’s access to his land or to the natural accretions incident thereto will not be enjoined at the suit of a private owner.</p>

<p>1. Proceeding for Mandamus — A Common Law Action. — The proceeding for a writ of mandamus is a common law action, and except as may be otherwise provided by statute, it is governed by the rules of common law procedure.</p> <p>2. Practice — At Common Laio — Taking Judgment Against a Part of the Defendants Only. — At common law, in a suit where it is permitted to take judgment against a part only, of the defendants, the taking of such judgment operates to discontinue the suit as to all other defendants.</p> <p>3. Same — Two Several Judgments in One Action. — Two several judgments in one action could not be taken at the common law, and there is no provision of our statute regulating proceedings for mandamus which in any way modifies this rule.</p> <p>,4. -Same— In Proceedings for Mandamus. — Under the statute there is no provision regulating the proceedings in applications for mandamus, and the procedure after pleading is to be the same as in other cases at common law.</p> <p>5. Same — Illustration of the Rule as to Several Judgments in Mandamus Proceedings. — A party filed a petition for a writ of mandamus against a number of defendants as directors of a corporation. The defendants served with process demurred to the petition and upon their demurrer being qverruled, all the defendants answered but two of them, who elected to abide by their demurrer, and judgment was rendered against them awarding the writ and for costs. Held, upon appeal, that the awarding of the judgment against the defendants abiding by the demurrer was in effect a discontinuance of the proceeding.</p>

<p>1. Appeals — Must Conform to the Order Allowing Them. — An appeal must conform to the order allowing it.</p>

Mandamus, to compel the issuing of a dram-shop license. Appeal from the Superior Court of CookCounty; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1900.

<p>Garnishment. — Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1900.</p>

<p>Assumpsit. — Attachment in aid. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Bukke, Judge, presiding. Heard in this court at the October term, 1900.</p>

<p>1. Receivers — General Rule of Appointment. — A receiver should never be appointed unless it is apparent to the chancellor from the showing made, that there is danger that the property which is the subject of the litigation will be dissipated or placed beyond the jurisdiction of the court, or in some way involved by transfers or conveyances, or by its being subjected to other claims, so as to render it more difficult for the court to give and enforce the final relief, to which the complainant may be found to be entitled.</p> <p>3. Same —Application for an Appointment Addressed to the Sound Judicial Discretion of the Court. — An application for the appointment of a receiver is addressed to the sound judicial discretion of the court, taking into account all the circumstances of the case, and if exercised, it is for the purpose of promoting the ends of justice and protecting the rights of all parties interested in the controversy and subject-matter, and is based upon the fact, made to appear to the court, that there is no other adequate remedy or means of accomplishing the desired object of such proceeding.</p> <p>3. Same — Nature of the Appointment. — The appointment of a receiver and authorizing him to take possession of property, is the exercise of a higher and more reaching power than the granting of an injunction, and should not be resorted to where an injunction will as well serve the purpose and to the same extent protect the rights of the complainant.</p> <p>4. Same — Rights of Parties Under the Law of this State — Where the Right of Appeal Does Not Exist. — The law of this State gives to a party against whom an injunction has been issued, and over whose property a receiver has been appointed, a right of appeal, but from subsequent interlocutory orders relating to the sale and distribution of the property, no appeal is given.</p> <p>5. Chancery Practice — Where the Allegations of the Bill Show that the Complainant Has a Remedy at Law. — Where the material allegations of a bill to set aside a sale of goods as fraudulent and the affidavits in support of them make out no more than the case of a sale and delivery of a stock of merchandise for an inadequate consideration or for a pretended consideration for the purpose of hindering, delaying or defrauding creditors, and placing the property beyond their reach, it amounts to the statement of a case for which the law affords a full and adequate remedy, either in replevin to recover the goods in specie or in trover for their value.</p> <p>6. Same— Where the Complainant Has a Complete Remedy at Law. — The rule in this State is that a party who has a plain and adequate remedy at law, must proceed at law, and so long as his remedies at law are not exhausted he can not resort to a court of chancery.</p> <p>7. Same — Effect of the Formal Reservation in an Answer in Chancery. — The reservation by a defendant in his answer of all ad vantage he might have had by demurring to the bill, enables him, on the application for the appointment of a receiver and turning over to him the possession of the property which was the principal and substantial relief sought, to raise the question that the complainant has a complete and adequate remedy at law.</p> <p>8. Fraud — Remedy Where a Sale is Fraudulent. — If a contract of sale is fraudulent an action at law will lie at the suit of the proper parties for the value of the goods, and the fraudulent contract can not be interposed as a bar to a recovery.</p>

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

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

<p>Foreclosure of Trust Deed. — Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the October term, 1900.</p>

Assumpsit, for goods sold, etc. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1900.

<p>1. Default — Judgment by, Erroneous, When Pleas Are on File and Undisposed Of. — Where a plaintiff amends his declaration after responsive pleas are on file and the court enters an order on the defendant to plead to the amended declaration in five days, it is erroneous to enter a judgment by default against him in his absence while his pleas are undisposed of.</p> <p>2. Practice— Where it is Not Necessary to Plead to an Amended Declaration. — Where a declaration is amended after the defendant has previously filed pleas setting up a complete defense, and the amendment presents no new matter requiring further answer, it is not necessary to file new pleas.</p> <p>3. Same — Erroneous Defaults in Replevin. — Where pleas on file are a sufficient answer to any declaration in replevin, it is not necessary for the defendant to plead further in case the plaintiff amends his declaration but sets up no new matter, and a default taken after such amendment for want of further pleas is erroneous.</p>

Trespass oil the Case, for fraudulently and maliciously conspiring to depreciate the value of capital stock of a corporation. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in t\áp court at the March term, 1901.

<p>Petition for a Mechanic's lien. — Eiror to the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court- at the March term, 1901.</p>

Trespass oil the Case. — Death from negligent act. Error to the Circuit Court of Cook County: the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1901.

<p>Petition for a mechanic’s Lien. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1900.</p>

Prosecution, for a failure to pay over money collected. Error to the Criminal Court of Cook County; the Hon. Theodore Brent ano, Judge, presiding. Heard in this court at the October term, 1900.

<p>Bill to Set Aside a Fraudulent Conveyance. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the October term, 1900.</p>

<p>Debt, on an appeal bond. Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1900.</p>

<p>1. Foreign Insurance companies — Subject to the Laws of this State Equally with Domestic Companies. — A foreign insurance company, doing business in this State, is subject to the laws in relation to insurance companies, equally with domestic companies.</p> <p>2. Statutes — Construction of the Words "May" and "Shall” When Used in. — The words “ may” or “ shall,” when used in a statute, maybe used interchangeably as will best express the legislative intention.</p> <p>8. Same — Rule of Construction of the Word "May” When Used in Statutes. — The word “ may,” when used in a statute, is to be construed to mean “ shall" whenever the rights of the public or of third persons depend upon the exercise of the power, or the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a public duty is imposed upon officers, and the public or third persons have a claim de jure that the power shall be exercised.</p> <p>4. Mutual Insurance 'Companies — Distribution of Surplus Funds. —Section 14 of chapter 78 R. S. (Hurd’s Ed., 1899, p. 1014, par. 194) is not a grant of power, hut is perhaps a limitation on the power of such companies to distribute their surplus funds oftener than once a year. In the absence of such a provision, the time of distribution would depend on the directors except so far as limited by the charter of the company or valid by-laws.</p> <p>5. Same— Construction of Section H, Ch. 73, R. S'. — Section 14 of chapter 78, R. S. (Hurd’s Ed., 1899, p. 1114, par. 194), when considered entire, seems to be for the protection of policy holders. Such companies are permitted to make distribution not oftener than once a year, but in determining the amount of the surplus to be distributed there is to be reserved an amount not less than the aggregate net value of all outstanding policies.</p> <p>6. Construction op Statutes — Intention of the Legislature, Sow Ascertained, — The intention of the legislature in enacting a law is to be ascertained from the language used in the act, and when such language is plain and unambiguous the words are to be understood in their commonly accepted meaning.</p> <p>7. Same— Of Statutes and Contracts.— Statutes and contracts should be read and understood according to the natural and most obvious import of the language used, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation.</p> <p>8. Words and Phrases — 1“ May ” and “ Shall” as Used in Section H, Ch. 73, R. S. — Applying the rules of law to the words “ may ” and “shall,” as used in section 14, chapter 73, R. S. (Hurd’s Ed., 1899, p. 1014, par. 194), the former must be regarded as permissive and the latter as imperative.</p>

<p>Mortgage Foreclosure. — Error to the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1900.</p>

Assumpsit, on a promissory note against the makers and indorser. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1901.

<p>Bill for Belief. — Error to the Circuit Court of Cook County; the Hon. Edward P. Dunne, Judge, presiding. Heard in this court at the October term, 1900.</p>

<p>Trespass on the Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1900.</p>

<p>Chancery Practice — What Does Not Preclude a Defendant from Objecting to the Acts of a Receiver. — A defendant in a suit of foreclosure, after having suffered his default to be entered and the bill of complaint against Mm to be taken pro confesso, and having enteredno appearance to object to the continuance of the receivership, is not, however, by-reason of such failures, to be precluded from making his claim to the rents and profits which have accrued from the mortgaged premises during the period provided for redemption, nor from urging his objection to the order of the court by which the receiver was permitted to apply such rents and profits to the payment of the ground rents reserved in a lease of the premises.</p> <p>2. Same — Complainants in Foreclosure Suits as Purchasers at Sales Under the Decree. — Where one of the complainants in a foreclosure proceeding becomes the purchaser at the master’s sale, “for the use of all the complainants,” he and they stand, as purchasers of the mortgaged premises at such sale, precisely as would any other purchaser, and their status is in no wise changed, nor are their rights as such purchasers enlarged by reason of the fact that they were also complainants in the foreclosure proceedings.</p> <p>3. Same — Rights of the Owner of the Equity of Redemption. — The owner of the equity of redemption is entitled to the enjoyment of the mortgaged premises during the period provided for a redemption from the foreclosure sale, and to him belong the rents, issues and profits arising therefrom during such period.</p> <p>4: Mortgages — Effect of the Satisfaction or Payment of the Mortgage Debt. — A mortgage and all of its provisions are to be regarded as for but one purpose, viz., securing the payment of the mortgage indebtedness, and when the debt has been fully paid, the mortgage, together with all its terms and provisions, has expended its force and the premises are discharged therefrom, notwithstanding the mortgage contained provisions that during the period of redemption the rents should be paid to the purchaser at the sale.</p> <p>5. Same— When the Debt Secured, is Discharged. — The mortgage debt is the principal thing, and the mortgage merely an incident thereto, and when the debt is discharged the provisions of the mortgage lose their force.</p> <p>6. Foreclosure — Claims of the Purchaser at the Sale to the Rents and Profits During the Equity of Redemption. — A purchaser at a foreclosure sale has no claim against the rents and profits of the premises until the period of the redemption has expired and he can not have them awarded to him for any purpose whatever as against the right of the owner of the equity of redemption to such rents and profits.</p> <p>7. Same — Liabilities of a Purchaser at a Sale Under a Decree of Foreclosure. — A purchaser at a sale under a decree of foreclosure is required to assume the burden of paying the ground rents, taxes and assessments upon the land, and insurance upon the buildings thereon, in order to protect his purchase, and he can not for that purpose avail himself of the rents which the premises are earning during the period of redemption. It may seem a hard rule, but he is presumed to have made his bid with a view to such contingencies.</p>

Assumpsit, to recover money paid under an invalid ordinance. Appeal from the Superior Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

<p>1. Mandamus — Writs of, Not To Be Issued Unless the Applicant Shows a Clear Right to the Relief Sought. — A writ of mandamus should not be issued unless the petitioner shows a clear right to the relief sought and avers in his petition every material fact necessary to show that a legal duty rests upon the respondent to do that which it is sought to compel him to do.</p> <p>3. Same — W7ien an Applicant for the Writ Is Prevented from Completing Within a Limited Time by Injunction.— A party acting under the provisions of an ordinance authorizing him to do so, applied for and obtained from the commissioner of public works a permit to lay a switch track in a public street in the city of Chicago to be completed within thirty days, and began the work, but was prevented from completing it within the time limited, by an injunction. Subsequently the injunction was vacated, and the thirty day limit having expired, he applied to the commissioner for another permit to proceed with the work. Upon the commissioner’s refusal he applied for a writ of mandamus to compel him to issue it. Held, that upon his showing that he was not at fault in failing to comply with the order of the department of public works in regard to the construction of the track, having been restrained by injunction and its vacation, he was entitled to the writ.</p> <p>3. Same — Right to the Writ, When Not Affected by the Repeal of the Ordinance Under Which the Applicant Is Acting. — A party acting under an ordinance authorizing him to lay a switch track in a public street in the city of Chicago, obtained from the commissioner of public works a permit entitling him to proceed with the work but to complete it , within thirty days; he was restrained by an injunction from proceeding with the work, which was subsequently vacated, but not until the time limited had expired, and in the meantime the ordinance authorizing him to lay the track had been repealed. It was held that he had, by virtue of the ordinance giving him permission to lay the track and the work done by him thereunder, acquired a right of which he could not be divested by the subsequent action of the city council in attempting to repeal the ordinance authorizing him to lay such track.</p> <p>4. Cities — Power Under the Act of lS7j to Grant the Right to Lay Tracks in Streets Restricted to Steam and Horse Railroad Companies.— The statute (Clause 90 of Section 1, Art. 5, Ch. 34, R. S. 1874) restricts the power of a city council to grant the use of, or the right to lay tracks in streets to steam or horse railroad companies, but does not restrict the right to grant the use of the streets for such purposes to individuals.</p> <p>5. Statutes — Must Be Interpreted to Mean What Is Plainly Expressed. — Where a law is plain and unambiguous, whether expressed in general or limited terms, it must be interpreted to mean what it plainly expresses. Courts are not at liberty to search for points or even probable meanings repugnant to the one plainly declared in the legislative enactment.</p> <p>6. Same — Where the Object of the Legislature Is Plain. — Where the object of the legislature is plain and the words of the act unequivocal, courts can not adopt a construction which they may suppose to have been the intention of the legislature, where such supplied intention is not supported by the words of the statute.</p> <p>7. Same — Imperative Rule of Construction. — There can be no departure from the plain meaning of a statute on the grounds of its unwisdom or of public policy. Contracts and statutes are to be read, understood and enforced according to the na ture and obvious import of the language used, without resorting to subtle "and forced construction for the purpose of either limiting or extending their operation. It is the duty of the courts to accept a statute as they find it, and enforce it as plainly written.</p> <p>8. Judicial Decisions — Rule of Construction. — In determining what courts have decided, it is to be borne in mind that it is not so much that which may happen to have been said in delivering an opinion that constitutes the law of the case, as that which was necessarily decided by the judgment given.</p> <p>9. Ordinances — Ministerial Officers Not to Give Their Opinion of Their Invalidity as a Reason for Disobeying Them. — A ministerial officer can not set up as a reason for refusing to comply with the ordinance in this case, his opinion that it was invalid. The duty of such officers is to obey the ordinances of the city.</p>

<p>Covenant for Rents. — Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>1. Master and Servant — Duties of the Servant. — A servant is bound to exercise ordinary care for his own safety. He must notice dangers which are apparent but he need not hunt for hidden perils.</p> <p>2. Same — Duties of the Master. — The master is bound to exercise reasonable care to provide reasonably safe appliances for the use of his servant, and a reasonably safe place for the doing of his work, and the servant has a right to rely upon the performance by the master of this duty.</p> <p>3. Hazards— What Are Not Assumed by a Car Repairer. — A. car repairer in the employ of a company engaged in repairing cars does not assume the increased hazard which comes to him from his employer’s foreman having notified the switchman of a railroad company to remove cars in bad order, nor the increased hazard which arises from the employes of such railroad company in proceeding to remove such cars without any notice that there were car repairers at work upon other cars on the same track, for whose safety, as a matter of common humanity, they ought to look out, and to whom they ought to give warning.</p>

<p>1. Partition — Accounting for Taxes Paid by a Co-tenant in Possession. — Where the owners of land sustain to each other the relation of co-tenants and one of them in possession pays the taxes on the whole, and the one not in possession goes into equity to establish his rights, it is just and equitable that he should be compelled to account to the other for his proportion of the taxes paid on such lands.</p> <p>2. Estoppel — By Adjudications Under the Burnt Records Act. — In a proceeding by co-tenants under the burnt records act, where nothing but title is involved or adjudicated, the parties are not estopped in a subsequent proceeding in partition to'insist upon an accounting of rents and profits and for taxes paid upon the land in question.</p> <p>3. Interest — Tobe Allowed Only When Authorized by the Statute.— Interest is a creature of the statute, and is allowable only when authorized by it. Although it is allowable for money paid out or received for the use of another, and for a vexatious delay of payment when due, it is frequently disallowed when its payment, though due, is not vexatiously delayed.</p>

<p>Replevin. — Appeal from the Circuit Court of Cook County; the Hon. Edwaud P. Vail. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

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

<p>Trespass oil the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. John C. Garver, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>1. Railroad Companies — Duty Owed to Car-cleaners of Other Companies as Mere Licensees. — The duty owed by a railroad company to a person not in its employ, but engaged in cleaning the cars of another company left upon its track by permission for that purpose, is not to be reckless of the safety of such person.</p> <p>2. Ordinary Care — Defined.—The definition of ordinary or reasonable care is that care which prudent persons usually exercise, or, as applied to a particular case, is that care which a prudent person would exercise under like circumstances.</p> <p>3. Same — Degree of Care to be Exercised by Persons Working in Dangerous Places.— Persons who work in dangerous places are bound to exercise such care for their safety as the obvious dangers of the place require.</p> <p>4. Error — Not to be Assigned for Failing to do that Which the Court is Not Ashed to do. — The action of a court can not be assigned for error in failing to do that which it was not asked to do.</p>

<p>Assumpsit, for use and occupation. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Assumpsit, on a contract for services. App'eal from the Circuit Court of Cook County; the Hon. Charles E. Fuller, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Creditor’s Bill. — Appeal from the Circuit Court of Cook County; the Hon. Edward F. Donne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>1. Independent Contractors — Non-Liability of Their Principals for Their Negligence — Application of the Doctrine. — The doctrine of independent contractors and the non-liability of a principal for their negligence, is never applied to absolve one from liability for the doing of that which he has directly authorized or which necessarily results from the doing of that which he has contracted or directed to have done.</p> <p>2. Municipal Corporations — Liability for Damages Done by Contractors. — Where a city authorizes a public work to be done and in the doing of it the premises of a citizen are damaged, either by reason of the negligence of the contractors or as a necessary or natural consequence of the doing of that which it employed them to do, the city is liable for such damage, unless it has done that which it had not only the right to do but to do it in the manner it did it.</p> <p>3. Same — Liability When Acting Judicially and When Ministerially. —A municipal corporation in planning a public work acts judicially, and when proceeding in good faith, is not liable for errors of judgment; while in constructing the work it acts ministerially and is bound to see that it is done in a reasonably safe and skillful manner.</p> <p>4. Same — When Estopped to Raise the Question of Ultra Vires.— Where a public work done, is within the power of a municipal corporation, it may be estopped to raise the defense of ultra vires, notwithstanding there has been a failure to comply with some regulation concerning the exercise of such power.</p> <p>5. Same — Liability for Torts Not Affected by Constitutional Inhibition. — The liability of a municipal corporation for its torts, is not affected by the constitutional inhibition as to its indebtedness.</p> <p>6. Same — IEAera Liable in Tort. — Where a municipal corporation directs and superintends the construction of a public work, and it is negligently done, and thereby the property of a citizen is injured, the corporation is liable for such injury, in an action of tort.</p> <p>7. Same — When Estopped to Question a Contract, Invalid from Its Inception. — Where a contract entered into by a municipal corporation is within its powers and apparently advantageous to it, though invalid from its inception, if the corporation has received the benefit of it, it will be estopped from questioning it.</p> <p>8. Evidence — Of Money Expended in Repairing Property Injured-Requisites of the Remedy. — In an action against a city for damages resulting from injuries to property by reason of the construction of public works, there is no rule of law which forbids a party to testify as to payments made by him to repair such injury; but whether he is entitled to recover for such payments depends upon whether such repairs were rendered necessary by what was done by the city and whether the amount paid was reasonable.</p> <p>9. Rents — For Spaces Under Sidewalks.- — In all great cities there are many excavations beneath the surface of the streets, occupied by private individuals for private purposes with the knowledge and assent of the municipal authorities, but the court is aware of no authority holding that such cities may at any time, in actions for use and occupation, collect from these occupiers the rental value of the spaces so occupied.</p>

<p>1. Appellate Court Practice — Errors Relied upon Must be Shmvn by the Abstract. — All errors relied upon by an appealing party must be made to appear by the abstract; the record will not be examined to supply its deficiencies.</p> <p>2. Same — The Declaration in the Suit Should, be Made to Appear.— The declaration is a necessary part of every suit and should be made to appear in the abstract of the record by one who seeks to reverse the judgment for errors occurring in the suit in which it is filed.</p> <p>3. .Abstracts — A Skeleton Index is Not. — An abstract of the record which is a mere index, is insufficient.</p>

<p>Trespass on the Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>1. Practice — Where it is Error to Take a Case from the Jury. — In an action for damages resulting from the death of the plaintiff’s intestate, alleged to have been caused by the negligence of a yardmaster in the employ of the defendant, a railroad company, as vice-principal and overseer of the deceased, under an allegation of the declaration that such yardmaster knew, or in the exercise of ordinary care ought to have known, of the dangerous position of a car which resulted in the death of such intestate; if the evidence fairly tends to show that such overseer did know, or in the exercise of ordinary care ought to have known, of the danger, it is the duty of the court to submit the case to the jury.</p> <p>2. Railroads — Mobility for the Aets of a Vice-principal. — Where a yardmaster in the employ of a railroad company, under whom was an employe charged with the duty of inspecting cars in the yard to ascertain if they were in condition to move, before such employe had finished his inspection, ordered a train upon which he was engaged to move out, by reason of which the inspector was killed, the company was held liable.</p> <p>3. Negligence — Responsibility for Deaths Resulting from the Negligence of Employes. — The court can not conceive that the law would, under the fellow-servant or any other doctrine, hold a man responsible for his own death caused by the moving of a train which he was engaged in examining to see if it was ready to move, when before he had finished his examination, the train was moved by the order of an officer superior to such inspector.</p>