Volume 99 — Illinois Appellate Court Reports

<p>1. Principal and Agent — Liability of the Principal for Wrongful Arrest by the Agent. — In determining the liability of the principal for a wrongful arrest by his agent, the criterion is, was the act within the general scope of the implied authority conferred upon the agent. If so, the wrongful exercise of it, though not expressly directed by or contemplated by the principal, will render him liable.</p> <p>2. False Imprisonment — Arrest by Employes in Mercantile Establishments. — An usher on the floor of a large dry goods emporium followed to the street a customer whom he suspected of theft and there placed his hand upon her arm, and compelled her to return to the store with him, where she was taken into a room and interviewed by other employes of the proprietor. In an action for false imprisonment, the proprietor of the establishment was held liable for the act and mulcted in the sum of §475 as damages.</p>

<p>1. Libel — Charging the Wares of a Manufacturer to be a Humbug.— A publication charging that the wares of a manufacturer are a humbug, worthless and unfitted for practical use, is a libel.</p> <p>2. Same — Publications Based upon the Examination of a Circular.— The statements of a publication, based upon the examination of a circular issued by a manufacturing company, commending its wares and not upon an examination of, or experience with such wares, if false and maliciously made, are actionable for any damage resulting.</p> <p>3. Same — Criticism by the Publishers of Trade Journals. — The publisher of a trade journal may, without liability, make any fair and reasonable discussion of the wares of a manufacturer who solicits public patronage and may publish an honest expression of his opinion upon the merits of such wares. But, under the guise of expressing an opinion, he is not privileged to maliciously make any false statements of any material fact in relation thereto which will impute to such manufacturer a want of integrity in his business.</p> <p>4. Same — Truth of a Plea of Justification, a Question for the Jury.— The truth of matters alleged in a plea of justification for a libel is always a question of fact for the determination of a jury.</p> <p>5. Cross-examination — Of Expert Witnesses. — Greater latitude is allowed in the going outside of facts in evidence, for the purpose of cross-examining an expert witness, than is allowed in the examination of other witnesses, and the extent of such latitude is a matter resting largely in the sound discretion of the trial judge.</p> <p>6. Witnesses — Must Not Usurp the Province of the Jury.— The examination of a witness which permits him to usurp the functions of the jury, to canvass the evidence and to determine the question for which the jury are impaneled, in a case where the evidence is conflicting and where the damages assessed are large, is reversible error.</p>

Trespass on tlie Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in this court on a remanding order from the Supreme Court.

<p>Forcible Entry and Detainer. — Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Bill to Quiet a Title. — Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.</p>

Assumpsit, for money had and received. Appeal from the Circuit Court of Cook County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the March term, 1901.

Voluntary Assignment. — Petition by a judgment creditor for a preference. Appeal from the County Court of Cook County; the Hon. Orrin N. Carter, Judge, presiding. Heard in this court at the March term. 1901.

<p>Action on an Appeal from a Justice of the Peace. — Appeal from the Circuit Court of Cook .County; the Hon. Elbridue Hanect, Judge, presiding. Heard in this court at the March term, 1901.</p>

<p>Action on a Covenant of Assumption. — Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1901.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the March term, 1901.

<p>Interlocutory Order, for an injunction. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1901.</p>

Foreclosure of a Mortgage, taken by a building and loan association. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

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

<p>1. Employment — Burden of Proving an Improper Discharge.— When a person brings a suit for damages sustained because of an improper discharge, the burden is upon him to show that he was engaged for a definite period and discharged without sufficient cause before the end of it.</p>

<p>1. Remittitur — On Suggestion of the Appellate Court. — In a case where the Appellate Court is of the opinion that the evidence justifies a recovery, but that the verdict is too large, it may affirm the judgment on condition that a portion of it is remitted, otherwise that it be reversed and remanded.</p>

<p>1. Insolvent Building! and Loan Association — Status of Stockholders and Creditors. — When a holder of matured shares of stock in a building and loan association, surrenders his stock, procures the cancellation of his certificate, and allows the amount due him upon his shares to remain with the association, taking therefor an acknowledgment of the indebtedness, he becomes a creditor of the association upon the same basis as outside persons, and is entitled to be preferred as to such claim above stockholders whose stock had not matured at the time the association was declared insolvent.</p> <p>2. Equity Jurisdiction — In. Winding up the Affairs of Building and Loan Associations. — Equity will always disregard the form and look to the substance of a transaction in order to prevent injustice.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Marcus ICavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. This was an action to recover damages alleged to have been sustained by appellee in consequence of stepping through a hole in a sidewalk in Chicago. As a result of the injury thus sustained it appeared that appellee’s ankle has become stiff, so that she walks with a cane.

Assumpsit, on the common counts. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haneoy, Judge, presiding. Heard in the Branch Appellate Court on a remanding order from the Supreme Court, at the October term, 1901.

<p>1. Wills — Construction of, Where Real and Personal Estate Are Commingled in a Residuary Clause. — The general rule is, that where, in the residuary clause of a will, real and personal estate are commingled, the intention of the testator is that the residuary legatee shall take only that which is left after all other legacies have been satisfied, and in case the personal assets are not sufficient to satisfy the personal bequests, it will be presumed that it was the intention of the testator to charge them upon the real estate bequeathed under the residuary clause.</p> <p>2. Same — Inadmissibility of Evidence to Determine the Intention of the Testator. — Where the language of a will is free from doubt, no testimony, oral or otherwise, is admissible for the purpose of determining the intention of the testator.</p> <p>3. Same — Exception to the Rule that a Will Speaks Only from the Death of the Testator. — Although in this State a will speaks only from the time of the testator’s death, if his intention as communicated in his will is not clear, evidence of the condition of his estate at the time of making the will is admissible.</p> <p>4. Same — Rules of Construction. — In the construction of a will when there is room for doubt, the court will put itself as far as possible in the position of the testator by taking into consideration the circumstances surrounding him at the time of the execution of his will.</p>

<p>1. Contracts — To be Governed by Laws in Force When Made. — The law in force when a contract is made must be deemed to have entered into and to have formed a part of it, and such contract is to be construed and enforced in accordance with the law as it then existed.</p> <p>3. Same — Laws Impairing the Obligations of. — To hold that a contract made under an old law is to be governed by subsequent legislation would be to construe such legislation as valid and not void, as impairing the obligations of contracts previously made.</p> <p>3. Same — Laws Which Provide Remedies Not a Part of. — It is well settled that remedies which the law provides to enforce a contract do not constitute a part of the contract itself and are within the control of the legislature.</p> <p>4. Solicitors’ Fees — When a Decree Allowing is Unauthorized.— When by the terms of a contract and the law which entered into and formed a part of it, no lien for a solicitor’s fee was allowed, the allowance of such a fee authorized by a law subsequently enacted is illegal.</p> <p>5. Words and Phrases — “ On or About” — When Surplusage in a Contract. — Where the words “on or about,” are used in a ^contract, while weakening the positive force of its terms, they may, under the contract, in this case, be treated as surplusage.</p> <p>6. Mechanics’ Liens — Errors in the Statement Filed Do Not Always Invalidate. — A mistake of fact in a statement filed under the statute, for a mechanic’s lien, where there is no wrong intention on the part of the party filing it and no one is prejudiced by it, does not necessarily constitute such a violation of the requirements of the statute as to render the notice invalid.</p>

<p>l. Corporations — Authority of the Superintendent to Indorse Checks Payable to Sis Company. — The authority of the superintendent of a corporation to indorse a check payable to his company is a question of fact under the circumstances of each particular case to be determined by the jury, and if there is evidence fairly tending to support the verdict it should stand as returned unless the law of the case as announced by the instructions has been disregarded or is fatally erroneous, or some instruction has been refused which was necessary to correctly place before the jury the law as applicable to the facts and circumstances of the case, or some evidence erroneously refused or admitted for the consideration of the jury.</p> <p>2. Same — Authority of the Superintendent to Indorse Cheeks Payable to His Company Need Not Be Express. — It is not necessary that the superintendent of a corporation should have express authority to indorse checks payable to his company; it is sufficient if shown that he was impliedly authorized to do so.</p> <p>3. Same — Authority to Indorse Checks May Be Implied. — Authority to indorse checks may be implied from the course of business and from repeated recognitions by the company of the superintendent’s acts.</p> <p>4. Burden of Proof. — Not Shifted by the Making of a Prima Pacte Case. — Upon the introduction of evidence sufficient to establish aprima facie case the burden of proof is not necessarily shifted, but remains throughout the trial with the party who holds the affirmative of the issue.</p>

Assumpsit, for goods sold and delivered. 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>Action on Appeal from a Justice of the Peace. — Appeal from the Circuit Court of Cook County; the Hon. Enoch E. Newlin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>B ill of Foreclosure. — Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Axel Ghytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Affirmed in case a remittitur is filed as suggested, otherwise reversed and remanded.

<p>1. Guaranty— Measure of Proof — Prima Facie Case. — Where an action is brought on a guaranty indorsed upon a promissory note, the production of the note with the signature of the guarantor upon it, makes a prima facie case.</p> <p>2. Same — Legal Proceedings Not Necessary to Fix the Liability of the Guarantor. — Legal proceedings are not necessary to fix the liability of a guarantor, nor is it necessary to prove a demand upon the maker or notice to the guarantor of the non-payment, or to use diligence against the maker.</p> <p>3. Promissory Notes — Who is the Holder or Proper Person to Malee a Presentation for Payment. — The holder of a promissory note or his authorized agent, is the proper person to make the présentation for payment: and any person who is in possession of the note under a blank indorsement, or with an indorsement to himself, will be deemed the holder for this purpose although he may be in fact only the agent of the real owner, for under such circumstances, as between himself and the owner, he is at liberty to treat the possession of the note as being in him under a legal title, as trustee of the owner, and is entitled to receive the payment upon it.</p> <p>4. Same— Where the Demand for Payment is to be Made. — Where a promissory note is made payable at a particular place, it will be sufficient for the holder to present it at such place for payment, and in case of its dishonor at such place, he is under no obligation to present it fox-payment elsewhere, or to present it personally to the maker.</p> <p>5. Same — Effect of Making a Note Payable at a Particular Place.— By making a promissory note payable at a particular place, the maker impliedly dispenses with the necessity of making any demand upon the holder, either personally or elsewhere, and the indorsers, equally with him, in such a case, impliedly agree that a presentment at the place shall be sufficient to bind all the parties.</p> <p>6. Set-off — Must be Acquired Before the Commencement of the Suit. —The defendant in a suit can not set off a demand against the plaintiff's cause of action, acquired by him after the commencement of the suit.</p> <p>7. Surety — Construction of the Contract of. — While the contract of a surety is to be strictly construed, and will not be extended by implication, courts in endeavoring to ascertain the precise contract which a surety has made, may resort to the same aids and invoke the same canons of interpretation which apply to other contracts, and when the true intent and meaning of the contract entered into by the surety is ascertained, effect will be given to it.</p>

<p>1. Freehold — Involved in a Litigation over an Easement. — Where the purpose and object of a litigation involve the establishment of an easement in a highway, a freehold is involved and the Appellate Court is without jurisdiction.</p>

<p>1. Personal Injuries — Of Insane Persons Unable to Testify — Exercise of Ordinary Care. — Where the plaintiff in an action for personal injuries is insane, confined in a hospital at the time of the trial, and unable to be present and testify in her own behalf, it is proper to introduce in her behalf evidence as to her habits tending to show that at the time of her injury she was probably exercising ordinary care for her personal safety. The rule applied in cases where injured persons have died since their injuries, is applicable to one whose mental condition has become such that testimony from him or her is not obtainable.</p> <p>2. Damages — WTtere $9,000 is Excessive. — Where a young woman sustained injuries by reason of a fall upon a sidewalk and was alleged to have sustained a permanent dislocation, and other injuries which rendered it impossible, or very improbable, that she would be able, at any time during her life, to bear children, a judgment for $9,000 is excessive.</p> <p>3. Remittitur — Of Excessive Damages — Suggestion of, in the Appellate Court. — In an action for personal injuries pending on appeal in the Appellate Court, where, under the circumstances developed by the evidence, the court regards the recovery as excessive, it may affirm the same on condition that the excess be remitted by a day named, otherwise reverse and remand it.</p>

<p>1. Beneficiary Associations — Prima Facie Evidence of the Service of Assessment Notices. — In an action upon a certificate of a beneficiary association the secretary testified that while he had.no recollection of putting a particular notice for an assessment into an envelope and addressing it to a particular member, he followed his usual custom of mailing a notice to each and every member, and that the one sent to each member showed him the amount of the assessment and was on the blanks of the secretary; held, prima facie evidence of the service of the notice upon the deceased member.</p> <p>2. Same — Vested Rights of Beneficiaries, — A beneficiary named in the certificate of a beneficiary association has, during the lifetime of the insured member, no vested rights in the insurance or against the association which can not be lost by action or non-action on the part of the insured.</p> <p>3. Evidence — Admissions of Deceased Members of Beneficiary Associations. — The admissions of a deceased member of a beneficiary association as to his acts of omission or commission, in relation to his certificate of membership, are admissible in evidence in suits by his beneficiary against the association.</p> <p>a. By-Laws — Of Beneficiary Associations — When Self-Executing,— A by-law of a beneficiary association providing that if a member fails to pay the amount due from him upon an assessment within one month from the date of the notice, as provided by law, he shall stand suspended, is self-executing, and no action, after giving such notice, on the part of the association or any of its officers, is required to effect a suspension.</p> <p>5. Forfeitures — Failure to Pay Assessments in Beneficiary Associations. — The failure of a member of a beneficiary association to pay an assessment legally made upon him, is, in itself, a forfeiture of his rights in the association.</p>

<p>Trespass, to household goods. 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. Building and Loan Associations — Security Taken by, on Incumbered Real Estate, Not Void for That Reason. — A trust deed given by a borrowing member of a building and loan association upon real estate, falsely represented by him to be unincumbered, is not necessarily void for the reason that under the statute the association had no authority to loan itá money upon incumbered real estate.</p> <p>3. Same — Construction of the Statute Relating to Loans. — Under the statute (R. S. Chap. 33, Sec. 85,) providing that good and ample real estate security, unincumbered except by prior liens of the association, shall be given by borrowers to secure the payment of their loans, is not a positive prohibition to the association, but is mandatory upon the borrowing members requiring them to give such unincumbered security.</p> <p>3. Same — Taking Security for Loans upon Incumbered Real Estate Not Ultra Vires. — The taking of a trust deed by a building and loan association from a borrowing member on incumbered real estate to secure a loan, is not, properly speaking, an act ultra vires on the part of the association.</p> <p>4. Effect of a Dissolution upon Borrowing Members. — The effect of a resolution by the directors of a building and loan association declaring the notes of a borrowing member due and payable, and directing a foreclosure, is to forfeit the stock, mature the debt and sever the relation of the borrower as a member of the association.</p> <p>5. Same — A Party Ceasing to be á Member of a Building and Loan Association is Not Entitled to Earnings Nor Liable for its Debts. — A party ceasing to be a member of a building and loan association is not entitled to share in its subsequent earnings, nor is he liable for its debts thereafter contracted.</p>

<p>Debt, for a statutory penalty. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>!• Instbuctions— Should be Clear, Accurate and New in Number.— Instructions should always be clear, accurate and concise statements of the law as applicable to the facts of the case under consideration. A few concise statements of the law applicable to the facts are all that can serve any practical purpose in the determination of the questions at issue in the case.</p> <p>2. Same — Where an Unreasonable Number is Presented. — Where an attorney persists in handing up an unreasonable number of instructions, considering the nature of the case, the court is justified in refusing to examine them, and in requiring them to be consolidated, condensed or eliminated within such limits as may be reasonable.</p>

<p>1. Questions of Fact — In Actions for Money Had and Received.— Where a party is doing business under different styles and is sued for money had and received, the question whether he is the real party back of the concern is a question of fact for the jury, under all the evidence in the case, and whether he is doing the business in his own nam#or in the name of a purported corporation, is immaterial, if he received the money he is liable.</p>

<p>1. Ordinary Care — Measure of Proof on the Party Holding the Affirmative.- — In an action for personal injuries it is not incumbent upon the plaintiff to establish care and caution on his part by direct and ■ positive testimony, and in determining such question the instinctive promptings to the preservation of life and evidence of danger may be » taken into consideration.</p> <p>2. Same — Failure to Look and Listen. — It can not be said as a matter of law, that a person is in fault in failing to look and listen when about to cross the track of a railroad, if misled without his fault, or when the surroundings excuse such failure.</p>

<p>1. Insurance — Denial of Liability a Waiver of Proofs of Loss.— An insurance, company, by denying its liability, waives its right to insist upon proofs of loss under the provisions of the policy.</p>

<p>Confession of Judgment, on a lease for rent. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>1. Contracts — In Restraint of Trade. — A contract in restraint of trade, or an agreement not to transact business at specified places, or with particular persons, or beyond a limited and within reasonable bounds, is valid and enforcible, and courts will not inquire, when such a contract has been made and is reasonable, whether the consideration therefor was adequate or equal in value to that which the party restrained lost thereby.</p>

Trespass on the Case, for obtaining goods on credit by false statements. Appeal from the Circuit Court of Cook County: the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

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

<p>1. Possession — Wrongful Talcing Does Not Divest the Owner of His Title. — A wrongful seizure or taking of the personal property from the possession of another does not divest the lawful owner of any of his rights.</p>

<p>1. Trials — By the Court — When Not to Be Set Aside. — The finding of a judge to whom a cause is submitted for trial without a. jury is entitled to as much weight on controverted question of fact as the verdict of a jury, and will not be set aside by an appellate tribunal unless it is manifestly against the weight of the evidence.</p>

Assumpsit, for goods sold and delivered. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

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

<p>Petition for a Mechanic’s Lien. — Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Assumpsit, on a promissory, note. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Bill for an Injunction. — Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in' the Branch Appellate Court at the October term, 1900.</p>

<p>Assumpsit, for rents. 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. Former Recovery — In Replevin, When a Bar to Subsequent Suit for the Value of the Property Replevied. — M. sold a horse to H. for $50, with the agreement that if H. sold it, he (M.l should be entitled to all he got for it over $100. Subsequently H., with the assistance of M., traded the horse for a mare and $125. Afterward M. obtained possession of the mare and H. brought a suit in replevin before a justice of the peace for her possession and obtained judgment, from which no appeal was prosecuted. Afterward M. brought a suit against H. in the Circuit Court for $25, and the value of the mare ($75). Held, that the judgment in replevin before the justice was a bar to a recovery of the value of the mare.</p>

<p>1. Burden of Proof — 0/ Debts Claimed to Be Not Bona Fide.— When a party litigant contends that the indebtedness which a chattel mortgage is given to secure, is not a bona fide debt, the burden is upon him to prove it.</p>

Assumpsit, for goods sold, etc. Appeal from the Circuit Court of Montgomery County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1901.

<p>Claim in Probate. — Appeal from the Circuit Court of Montgomery County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the November term, 1900.</p>

<p>I. Gambling — Recovery of Money Loaned to Pay Losses Incurred by. —Where losses have been incurred in an illegal transaction, a person who lends money to the losing party with which to pay his losses can recover the same back, notwithstanding his knowledge of the fact that the money was to be used in paying such losses.</p>

<p>1. Real Estate Agents — Equitable Liens for Commissions. — Where the owner of real estate, owing a couple tí£ real estate agents the sum of two thousand dollars for negotiating a trade between him and a purchaser, executed a contract which was recorded in the office of the recorder of deeds and by which he agreed to give them the exclusive control of the sale of the land and to pay them out of the proceeds in the event of the sale, it was held that the contract gave the agents a lien upon such proceeds.</p> <p>2. Same— When the Lien Attaches. — The owner of real estate who owed a couple of agents for negotiating a sale of his land, had entered into a contract giving them the exclusive, control of its sale and by which . he agreed to pay them out of the proceeds, but reserved to himself the right to fix the price, which he afterward refused to do, and incumbered the title with mortgages; it was held that upon such action by him the debt became due and the lien attached.</p> <p>3. Contracts — Where Equity Treats that as Done Which Ought to be Done. — Where a contract for the sale óf land between the owner and a couple of real estate agents provides that the owner shall fix its selling price, the law infers that he shall fix a reasonable price and that the sale shall be made within a reasonable time.</p> <p>' 4. Equity Practice — Equitable Liens — Remedies at Law. — The fact that an applicant for an equitable lien has a remedy in a court of law and could have maintained an action at law and an attachment in aid of it, is no answer to a bill to enforce an equitable lien.</p> <p>5. Equitable Liens — Recognized by Courts of Chancery. — An equitable lien is one which a court of chancery recognizes as distinct from strictly legal rights, and is always open to enforce regardless of what rights the applicant may have in a court of law.</p> <p>6. Appellate Court Practice — When the Regularity of a Sale Can Not be Raised for the First Time in the Appellate Court. —Where no motion is made in the court below to set aside a sale on the ground that the court erred in approving the master’s report because it failed to show that the land was offered in separate parcels and was sold before the time within which the defendant was to pay the money as fixed by the terms of the decree had expired, or any objection raised to the master’s report, the regularity of the sale can not be questioned in the Appellate Court.</p>

Trespass on the Case, for the publication of a libel. Appeal from the Circuit Court of Vermilion County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the May term, 1901.

<p>Mandamus, to disconnect territory. Appeal from the Circuit Court of Logan County; the Hon. John H. Moffett, 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 Macoupin County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1901.

<p>1. Parties — WTio May Question the Fraudulent Disposition of Property. — Where there has been a fraudulent disposition of his lands by a testator in his will, creditors alone can invoke the remedy to subject nuch lands, and the income from the same, to the payment of their ■claims. Executors are not trustees or agents for the creditors of the ■estates represented by them.</p> <p>2. Wills — When a Testamentary Disposition of Property is Void as to Creditors. — A testamentary disposition of real estate, or the rents ,of the same, is null and void as to the creditors of the testator.</p> <p>3. Courts op Equity— Will Retain Jurisdiction Until Complete Jusdice is Done. — When a court of chancery obtains jurisdiction of a subject-matter, and of all the parties interested therein, it will retain the ■.same until complete justice is done, even though it settles some questions cognizable in az court of law.</p> <p>4. Administration op Estates — When an Executor May Re-imburse Himself for Over-payments. — Where, in the administration of an estate, an executor has by some inadvertence, overpaid a claim, a court of .equity may, under the circumstances of this case, rightfully direct him .to re-imburse himself out of rents in his hands.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>Assumpsit, for services. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in tills court at the May term, 1901.</p>

<p>Action to Recover an Attorney’s Fee, stipulated in a promissory note. Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>Trespass on the Ease, for personal injuries. Error to the Circuit Court of Piatt County; the Hon. William G. Cochrane, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>Bill to Wind Up the Affairs of a Building and loan Association. —Appeal from the Circuit Court of Tazewell County; the Hon. Leslie D. Puterbaugh, 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 McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.

<p>1. Judgments — Entry of Nunc Pro Tunc. — When the clerk of a trial court fails to enter of record in proper form a judgment pronouncedly the court, the court has power at a subsequent term to order it done nunc pro tunc.</p> <p>2. Amendments — Of Records, After the Close of the Term. — Courts have the power to amend their records so as to make them speak the truth, and although as a general rule amendments of records will not be allowed after the close of the term at which they are made, unless it can be shown from memoranda, quasi records of the court, judge’s minutes of the previous term, some entry in some book required to be kept by law, or the papers on- file in the case, that a mistake has been made or that the record is not full enough to speak the truth.</p> <p>3. Presumptions— Where the Bill of Exceptions Fails to Show that It Contains All the Evidence. — In the absence of something in the bill of exceptions to the contrary, it will be presumed that the trial court had evidence before it, sufficient to justify its finding.</p>

<p>1. Chattel Mortgages — Extension of, Under the Statute. —The statute (Laws of 1891, p. 171) allowing a chattel mortgage to be extended, provides that the mortgagee shall, within thirty days next preceding its maturity, file for record in the office of the recorder of deeds in the county where such mortgage is recorded and also with the justice of the peace, or his successor, upon whose docket it is entered, an affidavit set-</p> <p>ting forth the interest which he has by virtue of such mortgage in the property therein mentioned, and the time when the same will become due by reason of such extension.</p> <p>S. Pledges — Of Personal Property at Common Law. — At common law, pledges of personal property were void unless accompanied with possession by the pledgee, and when the pledgor retained the possession, the transaction was fraudulent per se, and incapable of explanation.</p> <p>8. Same — Legislative .Changes. — Our legislature has changed the common law in relation to pledges of personal property so as to permit the pledgor to retain possession of the property pledged, where it is so provided in the instrument creating the pledge, and the instrument itself properly acknowledged, with an entry made by the justice taking the acknowledgment, and by having the instrument duly recorded.</p> <p>4. Statutes — Constniation of, When in Derogation of the Common Law. — Our statute providing for the execution of chattel mortgages is in derogation of the common law of pledges of personal property, and is always to be strictly construed where the rights of third parties are involved.</p>

Action for Damages, occasioned by changing 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.

Original Proceeding. — Petition for a mandamus to compel the judge of the court below to sign a bill of exceptions. Heard in this court on demurrer to the answer at the November term, 1901.

<p>1. Principal and Agent — The Principal is Not Bound if the Agent Exceeds His Authority. — When an agency is special the authority must be strictly pursued and the principal is not bound if the agent exceeds it.</p> <p>2. Same — Duty of a Person Dealing with a Special Agent. — It is the duty of a person dealing with a special agent to ascertain the extent of his authority and if he fails to do so he must suffer the consequences.</p>

<p>Assumpsit, for a breach of contract. Error to the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>Trespass on the Case. — Death from negligent act. Error to the Circuit Court of Vermilion County; the Hon. Ferdinand W. Bookwalter, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>1. Technical Rules — Of Law, Not Allowed to Work Injustice.— In this case the court has no inclination to allow a technical rule of law to work an injustice, such as hás been attempted by this law suit, and for that reason the judgment will be affirmed.</p>

<p>1. Intoxicatin a Liquors— What is a Sale of, Within a Given Coun i y. —Where an order is taken for intoxicating liquor in one count}' and sent to a wholesale dealer in another, the delivery by the wholesale dealer to the common carrier consummates the sale in the county where the order is accepted by such dealer at the point of shipment.</p>

Indictment for illegal sales of intoxicating liquors. Error to the County Court of Douglas County; the Hon. William H. Bassett, Judge, presiding. Heard in this court at the May term, 1901.

<p>Assumpsit, on a promissory note. Appeal from the Circuit Court of Pike County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the May term, 1901.</p>

Assumpsit, for merchandise sold and delivered. 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>Assumpsit, on a policy of accident insurance. Appeal from the Circuit Court of Shelby County; the Hon. William M. Farmer. 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 Macon County; the Hon. Edward P. Vail, Judge, presiding. Heard in this court at the May term, 1901.

Assumpsit, for money paid out, etc. Appeal from the Circuit Court of Ford County; the Hon. John H. Moeeett, Judge, presiding. Heard in this court at the May term, 1901.

<p>1. Statute of Frauds — Original and Collateral Promises — The Test. —Where the question is whether the promise was original or collateral the test is whether the cr'edit was given to the person sought to .be charged, or to some one else, whom the person sought to be charged guaranteed should pay the debt.</p>

<p>Bill of Foreclosure. — Appeal from the Circuit Court of Fulton County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>1. Appeals — From the Probate Court in Citations to Compel the Surrender of Assets. — The Circuit Court has jurisdiction of an appeal from the Probate Court of the county in a citation against the widow of a deceased person, whose estate is in progress of administration, to compel her to surrender property claimed as assets of the estate.</p> <p>2. Gifts— What Amounts to a Sufficient Delivery of. — Where a donor at the time of declaring a gift, divests himself of the means of possession and dominion over it, and invests the donee with such means, he is to be considered as surrendering possession of it; so where an unequivocal declaration of a gift is accompanied by a delivery of the only means by which possession of the article given can be obtained, the delivery is sufficient.</p>

<p>1. Municipal Corporations — Limitations upon Corporate Action. —While courts should maintain with vigor the limitations which the statute has placed upon corporate action whenever it is a question of restraining a city council in advance, from passing beyond the bounds of statutory requirement, they should, on the other hand, enforce against the city, contracts of which it has received the benefits, if the subject-matter of the contract falls within the chartered powers of the city.</p> <p>2. Same— When the Statute Regulates the Manner of the Exercise of Corporate Action — Estoppel.—Where the statute authorizes a municipal corporation to exercise a certain power but specifically regulates the mode in which it is to be exercised, an attempt on the part of municipal officers to override the regulations of the statute and exercise it in another manner will be restrained; but when the officers have so acted, and the municipality has received the benefits of a contract thus irregularly entered into, it will be estopped from setting up the irregular exercise of the power when called upon to pay for what it has received.</p>

Trespass on tile Case. — Death from negligent act. Appeal from the Circuit Court of Vermilion County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the May term, 1901.

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>Debt, for a penalty. Appeal from the Circuit Court of Hancock County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>1. Equity — Acquiring Jurisdiction for One Purpose Retains It for All. — When a court of equity acquires jurisdiction of a suit for the purpose of determining whether or not a conveyance is, in fact, a mortgage, it will retain its jurisdiction for the purpose of adjusting all differences between the parties growing out of the transaction.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Vermilion County: the Hon. Ferdinand W. Bookwalter, Judge, presiding. Heard in his court at the May term, 1901.

<p>Bill of Foreclosure. — Appeal from the Circuit Court of Macoupin County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>Assumpsit, for commissions. Appeal from the Circuit Court of Schuyler County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1901.</p>

<p>Assumpsit, on a contract of guaranty. Appeal from the Circuit Court of Moultrie County; the Hon. William G. Cochrane, Judge, presiding. Heard in this court at the May term, 1901.</p>

Trover, for the value of twenty shares of bank stock. Appeal from the. Circuit Court of Cass County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1901.

Assumpsit, for goods sold, etc. Appeal from the Circuit Court of Vermilion County: the Hon. Ferdinand Booicwalter, Judge, presiding. Heard in this court at the May term, 1901.

<p>1. Insurance — Waiver of a Condition Prohibiting the Use of Gasoline for lighting. — A condition in a policy of fire insurance prohibiting the use of gasoline for lighting purposes may be waived by an agent of the company, and is held to have been so waived by an agent in this case.</p> <p>3. Agency — Presumptions as to its Continuance. — Where a person is acting as the agent of an insurance company, and as such, writes a policy for it, it will be presumed that his agency continues until notice of its termination is brought home to the insured.</p> <p>3. Same — Notice of the Termination of an Agency. — Where the agency of an insurance company has been established by competent proof the burden is upon the company to bring home to the holder of the policy written by such agent, notice of the termination of his agency.</p>

<p>Trespass on the Case, for personal injuries. Error to the Circuit Court of Coles County; the Hon. Frank K. Dunne, Judge, presiding. Heard in this court at the May term, 1901.</p>

Assumpsit, for money lost by loaning it to insolvent parties. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1901.

Assumpsit, for grain destroyed by fire. Appeal from the City Court of Mattoon; the Hon. James F. Hughs, Judge, presiding. Heard in this court at the May term, 1901.

Petition to Sell Beal Estate, to pay a deficit of the testator’s obligations. Error to the County Court of Macoupin County; the Hon. David E. Keefe, Judge, presiding. Heard in this court at the May term, 1901.

<p>1. Promissory Notes — Intrusted to the Custody of a Third Person, with Unfilled Blanks. — Where a person executes a promissory note and intrusts it to the custody of another, with blanks not filled up, whether it is for the accommodation of the person to whom id is intrusted or is to be used for the benefit of the maker, such note carries with it on its face an implied authority to fill the blanks necessary to perfect it; and as between the maker of the note and an innocent third party, the person to whom it was intrusted must be deemed the agent of the party who intrusted it to him, in filling the blanks necessary to perfect it.</p> <p>■ 2. Same — What is Not a Defense to a Note in the Hands of an Innocent Holder for Value Before Maturity and Without Notice. — Where a person signs a promissory note and carelessly leaves the blank spaces where the rate per cent of interest and attorneys’ fees can easily be inserted without defacing it or exciting the suspicion of ordinarily careful men, he becomes liable upon it to a party who purchases such note for a valuable consideration, before maturity, and without notice that the blanks were filled up after the maker had signed it.</p>

<p>1. Railroads — Duty to Keep the Road-bed Between the Tracks in Switching Yards in a Reasonably Safe Condition. — It is the duty of a railroad company to keep its road-bed between the tracks in its switching yard in a reasonably safe condition, so that its switchmen can walk thereon with reasonable safety while coupling cars.</p> <p>2. Same — Knowledge of a Defect by an Employe, When a Matter of Defense. — The fact that an employe of a railroad company has knowledge of a defect in the track through which he receives an injury, is a matter of defense, and in the absence of evidence showing that he had such knowledge it will not be presumed that he had, since no one is presumed to knowingly incur physical pain and death where he can avoid it.</p> <p>3. Same — Ordinary Careby Switchmen While Discharging Their Duties. — Switchmen in the employ of a railroad company, while discharging their duties as such, and having their attention constantly directed to moving cars and their coupling and uncoupling, can not be expected to give much attention to the condition of ties, switch bars, etc.</p>

<p>1. Forcible Detainer — Evidence Admissible in Defense of the A ction. —On the trial of an action of forcible detainer against a railroad company by a remainder-man for a strip of land acquired by a quitclaim deed from the life tenant, by such company, proof that it needed the land for Railroad purposes, and that it had before the commencement of the action of forcible detainer, offered to pay the plaintiff all proper damages for its use — that before the trial of such suit had commenced it applied to the court by a proper bill in chancery for that purpose and with proper notice to the plaintiff, for an order staying the further prosecution of the suit of forcible detainer until the court could, in such proceeding, .ascertain the amount of damages to which the plaintiff was entitled from it for the use of such land for railroad purposes and offered to pay Mm such damages when ascertained — that such suit was still pending and that the court had not yet determined what order it would make on said application — -is competent, and should be admitted.</p> <p>2. Railroad Companies— When Not to be Dispossessed by Actions of Forcible Detainer. — When a railroad company acquires the possession of a strip of land from a life tenant for its right of way, takes lawful possession and constructs its railroad uponit, as it possesses the power to acquire the right to continue the use of it for railroad purposes as against the remainder-man upon paying him his compensation and damages, he will not be permitted to dispossess the railroad company by a summary proceeding in forcible detainer and recover with it the improvements rightfully put upon it by the company, as long as it is willing to pay him all the damages to which he is entitled, as soon as they can be ascertained, by contract or by condemnation under the eminent domain act.</p> <p>8. Real Estate — Legal Titles Prevail as a General Rule — Exception. —While, as a general rule, the legal title must prevail in actions at law, an action of forcible detainer can not be maintained against one in the lawful and x’ightful possession of land.</p>

<p>1. Harmless Error — Error Which Works no Prejudice to the Party Complaining. — Errors committed by the court in rendering a decree which work no prejudice to the party complaining, will not be sufficient to effect a reversal of it at their instance.</p>

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

<p>1. Administration of Estates — Duties of an Administrator. — The law imposes upon an administrator the exercise of reasonable diligence in collecting claims due the estate he represents, and the duty of reporting the money as collected to the court, so that it may be applied in discharge of the demands of creditors and distributees.</p> <p>2. Administrators — No Authority to Loan the Money, of the Estate— Devastavit. — An administrator has no authority, without an order of court, to loan the money of the estate he represents, and if he does so, he will be accountable to the heirs for any loss in consequence. Such a loaning amounts, in law, to a devastavit.</p> <p>3. Same — Depositing in Insolvent Banks — Evidence of Loaning Money of the Estate. — Where an administrator deposits the funds of the estate lie represents in a bank, and receives a certificate payable to his order at a specified time after its date, with interest, such a deposit is evidence of a loan, by him, of such funds, and if the bank subsequently becomes insolvent, he will be responsible for any loss resulting therefrom.</p> <p>4. Same — When Not Responsible for Bank Failures. — Where an administrator acting in good faith makes a deposit in a bank of funds belonging to the estate he represents, from necessity or convenience, for a reasonable time, awaiting an order for distribution, a failure of the bank should not cast the loss of the deposit upon him.</p>

Trespass on the Case. — Death from alleged negligence. Appeal from the Circuit Court of Edgar County; the Hon. Frank K. Dunn, Judge, presiding. Heal'd in this court at the May term, 1901.

Assumpsit, for goods furnished county officers. Appeal from the Circuit Court of Piatt County; the Hon. William G-. Cochran, Judge, presiding. Heard in this court at the May term, 1901.

Assumpsit, for goods sold, etc. Appeal from the County Court of McLean County; the Hon. Roland A. Russell, Judge, presiding. Heard in this court at the May term, 1901.

, Assessing Damages, for land taken for a highway. 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, for personal injuries. Appeal from the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1901.

Assumpsit, for professional fees earned as a physician to enable him to give expert testimony at an inquest held by the coroner. Appeal from the Circuit Court of Piatt County; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the May term, 1901.

<p>Motion to Vacate a Judgment by Confession. — Appeal from the Superior Court of Cook County; the Hon. Axel Chyteaus, Judge, presiding. Heard in this court at the October term, 1900.</p>

<p>Action for Rents. — Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1901,</p>

<p>Bill of Foreclosure. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1901.</p>

<p>1. City of Chicago — Right to Authorize the Use of Space Underneath Sidewalks. — The city of Chicago has the right to authorize the use of space underneath sidewalks, provided it does not, by doing so, infringe the full, free and safe use of the street in all its parts by the public; but it has no right to authorize the use of any part or portion of the sidewalks of the city for private purposes.</p> <p>2. Sidewai.es — Definition of, and Uses. — A sidewalk is a part of the street, set apart for the use of pedestrians.</p> <p>3. Cities — Cero Not Divert a Street for any Purpose Inconsistent with the Full and Free Bight of the Public to Use the Same. — A city has no power to divert the use of a portion of a street or sidewalk for private occupancy for business purposes and any attempt to do so is beyond its power. A permit to a person for such a purpose is absolutely void.</p> <p>4. Lease — Where It Can Not Be Made the Basis of an Action for Recovery of Bent. — A lease, in violation of an ordinance prohibiting the occupancy of a part of a sidewalk for private purposes is invalid and can not be made the basis of suit for the recovery of rent.</p>

<p>Bill for Belief. — Intervening petition. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the October term, 1901.</p>

<p>Bill for Foreclosure. — Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1901.</p>

<p>Bill for Divorce. — Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1901.</p>

<p>1. Insurance — Acceptance of a Policy a Question of Faot. — hx an action upon a policy of insurance the question of the acceptance of the policy by the insured, is a question of fact for the determination of the jury.</p>

<p>Assumpsit, on the common counts. Appeal from the Circuit Court of Cook County; the Hon. Area N. Waterman, Judge, presiding. Heard in this court at the March term, 1901.</p>

<p>Assumpsit, on a policy of fire insurance. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1901.

<p>Debt, on a penal bond. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1901.</p>

<p>1. Contracts — Unusual, Not Presumed. — An engagement to work one year for two dollars per day, payment to be made at the expiration of the term, is so unusual as not to be presumed.</p>

<p>Mandamus. — Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Trespass on the Case. — Death from negligent acts. Appeal from the Circuit Court of Cook County; the Hon. Edmund Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.

<p>1. Recovery — When Proper Under the Common Counts. — Where a contract is fully executed and nothing remains to be done but the payment of the money, a recovery under the common counts is proper.</p> <p>3. Interest— Unreasonable Delay a Question of Fact. — Whether there has been an unreasonable and vexatious delay in the payment of a claim is a question of fact, and the finding of the trial court on evidence tending to show such act will not be disturbed in the Appellate Court.</p>

<p>1. Building Contracts — Architects Certificates, When Conclusive. —Where, by a contract, an architect is made the arbiter and judge as to the proper doing of the work, his certificate is conclusive, unless shown to have been mistakenly or fraudulently issued.</p> <p>2. Courts of Equity — Governed by Considerations of Right and Justice. — A court of equity is governed mainly by considerations of right.and justice between the parties. It does not disregard legal rights; on the contrary it follows the law, and it may in a proceeding for a mechanic’s lien, allow something for what is deemed insufficient work while' granting a decree for the amount found equitably due.</p> <p>3. Certificates of Evidence — Must be Under the Seal and Signature of the Trial Judge. — Under the statute, oral evidence is allowable in chancery cases, and such evidence is to be preserved by the certificate of the judge, which, upon being properly signed and sealed by him, becomes a part of the record.</p>

<p>1. Officers — Of Corporations, When Entitled to Compensation for Extra Services. — It is well-settled law that an officer of a corporation is not entitled to compensation for the performance of the ordinary duties of his office, in the absence of a prior authorization by the board of directors, but for the performance of duties or services outside of and apart from those imposed upon him by virtue of his office he may recover.</p> <p>2. Corporations — Right of a Stockholder to Cumulate His Vote.— The right of a stockholder in a corporation organized under the laws of. this State, to cumulate his vote, is expressly conferred by Sec. 3, Chap. 32 R. S., entitled “ Corporations,” and his motives in doing so can not be inquired into.</p> <p>3. Quo Warranto — Officers of Private Corporations. — While the general rule requires trial of the title to office in private corporations to be at law, and by a quo warranto proceeding, when other elements exist in the case which make it proper for a court of equity to intervene, such court will not be deterred from determining the question as to which of the parties are the lawful officers.</p>

<p>1. Names of Actions — Suits Before Justices of the Peace. — In a suit begun before a justice of the peace the form or name of the action is whatever the evidence shows it to be.</p> <p>2. Trover— When a Demand is Necessary Before Bringing Suit.— In a suit before a justice of the peace where the proof made shows the action to be in trover a demand must be made before the action can be maintained.</p> <p>8. Demand — When, and When Not, Necessary Before Bringing Suit. —Proof of a demand and refusal are necessary in cases where the defendant became in the first instance lawfully possessed of the property in question, and the plaintiff is not able to prove some distinct actual conversion; but where the taking is tortious or an actual conversion is shown, no demand is necessary before bringing suit.</p>

<p>Mechanics’ Liens. — 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>Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>®AILE0ADS — 4is Carriers of Passengers — What Constitutes One a Passenger. — The relation of carrier and passenger begins only when the holder of a ticket puts himself in charge of the carrier for the purpose of being conveyed to his destination; but if he is passing from the office or place of business of the company where he has purchased his ticket to his seat in the cars on the premises belonging to the company and connected with the railroad, under the direction, expressed or implied, of the agent of the company, given to him as to a passenger with whom the company has made a contract of conveyance, he is, while so passing to the train, a passenger, and as such entitled to a safe opportunity to enter the cars at the proper time.</p> <p>2. Same — When a Person Becomes a Passenger. — A person does not become a passenger of a railroad company until he has put himself in charge of the company and has been expressly or impliedly received by the company. It is not enough that such person may have an immediate intention to become apassenger; and if on arriving late at the station he finds that if he takes the time necessary to approach the train he desires to take in the ways openly and obviously provided by the company for safe passage he will not be able to reach it before it starts, and takes a short cut by crossing the tracks, and is injured in consequence, he can not be rightfully considered to have become a passenger.</p> <p>3. Same — A Person Intending to Become a Passenger Must Present Himself in a Proper Way. — A person intending to take passage upon a railroad train, who is proceeding without precaution for his safety, toward a point directly in front of an incoming train, does not present himself in a proper way to become a passenger.</p> <p>4. Contributory Negligence — Who is Guilty of. — A person who fails to observe ordinary care and blindly walks into a danger which the observance of due care on his part would have enabled him to avoid, is no less guilty of contributory negligence than one who, by the observance of due care, could extricate himself from a danger and fails to make any effort to do so, and by reason of such lack of effort is injured.</p> <p>5. Ordinary Care — Duty of a Person Approaching a Railroad Crossing. — A person approaching a railroad crossing is bound to know that it is a place of danger and that he must give that attention to the sights and sounds warning him of approaching trains that men of ordinary caution under like circumstances would give. And if he permits himself to become absorbed in thought about other matters, and consequently becomes oblivious of his surroundings, he will do so at his peril.</p>

<p>1. Variance — Pleadings and Proofs. — In an action for personal injuries, under a declaration alleging that the defendant wrongfully and negligently allowed a certain railing around an opening in a sidewalk to remain in bad and unsafe repair, and it became broken and insecurely fastened, by means whereof the plaintiff, who was standing and leaning against said railing, was thrown into the basement below, and “thereby his back was badly hurt and injured, and he was then and there otherwise permanently injured, both in health and body, that he has suffered, and continues to suffer, great pain therefrom, and was, and has been from thence hitherto hindered and prevented from transacting his business and affairs,” it is error to permit the introduction of evidence tending to show that the only serious injury claimed to have been suffered was to his left leg above the knee, and that it had been operated upon three times at different hospitals since the accident.</p> <p>2. Pleading — Rules Governing Actions for Personal Injuries. — It is a rule of pleading that whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, the plaintiff must state the particular damage he has sustained or he will not be permitted to give evidence of it, on the trial.</p> <p>8. Practice — On Motions for New Trials. — A. party is not bound to read his motion for a new trial to the court in extenso or to comment upon each ground stated in it. Nor is he deemed to have waived the points not read or commented upon, provided he has not in some way or manner deceived the trial court, or in some other way waived such points.</p>

<p>Bill for an Injunction. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tüthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Assumpsit, on a certificate of a beneficiary association. Appeal from 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>Intervening Petiti-m, of a depositor in an insolvent bank. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Bill for the Construction of a Will. — Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>Assnmpsit, on a penal bond. Appeal from the Superior 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 on the Case. — Death from negligent act. Appeal from the Superior Court of Cook County; the Hon. Maecus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.</p>

<p>1. Appeals — In Prosecutions Under the Pharmacy Act. — A prosecution for a violation of the pharmacy act, is quasi-criminal, and an appeal from such a prosecution in Cook county, is to be taken to the Criminal Court of such county. The nature of such prosecution is not to be determined by the name the justice before, whom it is had may see fit to give it.</p> <p>2. Jurisdiction — Uf Appeals in, Quasi-Criminal Cases. — The Circuit Court of Cook County has only original jurisdiction of quasi-criminal cases.</p>

<p>1. Appellate Court Practice — Presenting Rules of the Trial Court. —When it is desired to present the rules of the trial court for the consideration of the Appellate Court, such rules should be embodied in a bill of exceptions by the certificate of the trial judge showing that such rules were existing at the time of the trial.</p>

<p>Debt, on a replevin bond. 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>1. Appeals — By Persons Not Parties to the Suit or Judgment. — An appeal does not lie in favor of a person who is not a party to the judgment nor to the suit in which it was rendered.</p>

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

<p>Bill for Belief. — Appeal from the Superior Court of Cook County; the Hon. Elbridqe Hanecv, Judge, presiding. Heard in this court at the March term, 1901.</p>

Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1901.

<p>1. Decbees — On Conflicting Testimony. — The presiding judge of the trial court, who sees the witnesses, hears their testimony and observes their demeanor while testifying, is, other things being equal, better qualified to pass upon their credibility than is a court of review, from the mere reading of their testimony in the record; and in analogy to the rule in cases at law, courts have adopted the rule in chancery cases, that where the chancellor hears the witnesses testify in open court his findings of fact will not be disturbed unless clearly and manifestly against the evidence.</p> <p>2. Agents — Not to Gain a Personal Advantage. — An agent will not be permitted to gain a personal advantage in the matter of his agency to the detriment of his principal.</p> <p>3. Assignments — Of Mortgages, When Subject to Defenses. — The assignee of a trust deed in the nature of a mortgage takes it subject to all defenses which the grantor could make against the grantee, and he should for his own protection make inquiry of the grantor as to defenses existing, and as to whether there exists any reason why the amount secured should not be paid.</p> <p>4. Accommodation Paper. — Defined.—A. recognized definition of accommodation paper is, a negotiable or non-negotiable bill or note, made by one who puts his name thereto, without consideration, with the intention of lending his credit to the party accommodated.</p> <p>5. Subrogation — Not to be Invoked by a Volunteer. — One who is only a volunteer can not invoke the aid of subrogation, for such a person can establish no equity. He must have paid on request, as a surety, or under some compulsion made necessary by the adequate protection of his own rights. The loaning of money to discharge a lien is not sufficient to subrogate the lender to the. rights of the lien holder.</p>

Trespass on the Ca e, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. FarlinQ. Ball, Judge, presiding. Heard in this court at the March term, 1901.

<p>1. Life Insurance — When Suicide Avoids the Contract. — Where a policy of life insurance contains a provision that if the insured commit suicide, “ sane or insane,” it is not necessary, in order to avoid the liability, to show thafc in taking his own life he was conscious of the moral quality or consequences of the act, but only that he was conscious, at the time, of the physical nature and consequences of such act, or that he knew that the means employed would cause his death.</p> <p>2. Beneficiary Associations — Effect of By-Laws Requiring Claims to be First Submitted to the Executive Committee of the Association.— A by-law of a beneficiary association requiring a death claim to be submitted to the executive committee before bringing suit in a court of law is not binding úpon,the beneficiary.</p> <p>3. Waiver — Of a By-Law by a Beneficiary Association. — A provision in a by-law of a beneficiary association requiring a death claim to be submitted to the executive committee of the association and declaring a forfeiture of the beneficiary’s rights for a failure to do so, is waived by the action of the association in disapproving the claim and refusing to pay it.</p> <p>4. Same — Of the By-Laws of Insurance Associations. — By-laws of an insurance association requiring- a beneficiary, before bringing suit, to .pursue a peculiar remedy provided ir¡ such by-laws, may be waived by the absolute refusal of the association to pay the claim.</p>

Assumpsit. — Breach of an agreement to repurchase notes, etc. Appeal from the Circuit Court of Cook County; the Hon. Elbiiidge Hanecy, Judge, presiding. Heard in this court at the March term, 1901.

<p>1. Mechanic’s Liens — Where the Oivner and Contractor are Both Liable. — Where payments by the owner have been made to the contractor or to his order in violation of the provisions of the law relating to mechanic’s liens, the owner is liable with the contractor to the party furnishing the materials.</p> <p>2. Judgments — Jurisdiction of Justices of the Peace.— The rendition of a judgment on an appeal from a justice of the peace for an amount exceeding the jurisdiction of the justice is legal where the excess is for interest accruing after the rendition of the judgment by the justice.</p>

<p>Assumpsit, for professional services. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the March term, 1901.</p>

<p>1. Administration of Estates — Judgments Against Administrators After Removal. — Where an administrator is removed and a judgment is entered against him for the amount due to the estate in the form of an order to pay the amount over to his successor, the judgment should be against him as an individual and in favor of the estate.</p>

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1901.

Petition, under the mechanic’s lien law. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1901.

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1901.