Additional opinion of the Court.

Subsequently, after a petition for rehearing had been granted, the following additional opinion was filed:

Per CURIAM: Having, on petition of the appellant, ordered a rehearing in this case, and additional briefs having been filed, we have carefully reconsidered each of the various grounds upon which the appellant seeks a reversal of the judgment. After giving due weight to all the suggestions of counsel, we are brought to the same conclusion as before. It will therefore be unnecessary for us to enter upon any further discussion of the case, or to add anything to what we said in the opinion already filed. That opinion is re-adopted, and for the reasons therein stated, the judgment of the circuit court will be affirmed. Judgment affirmed.

INDEX.

ACCEPTANCE OF DRAFT. See BILLS OF EXCHANGE, 1 to 5.

ACCIDENT POLICY.

DEATH BY ACCIDENT.

Policy construed. See INSURANCE, 2, 3.

ACKNOWLEDGMENTS OF DEEDS.

BY JUDICIAL OFFICERS. See CONSTITUTIONAL LAW, 4.

ACTIONS.

MONEY PAID UNDER MISTAKE OF FACT.

1. Set-off. Assumpsit for money had and received to plaintiff's use lies to recover back money paid under a mistake of fact, and under section 29, chapter 110, of the Revised Statutes of 1874, such a demand may be set off by a defendant against the amount claimed to be due the plaintiff. Commercial Union Assurance Co. v. Scammon, 627.

VOLUNTARY PAYMENT.

2. Under mistake of law-and herein, of moneys paid by the county board on settlement with the sheriff. As between individuals, when money is voluntarily paid under a mistake as to the law, and under a claim of right, and without any fraud to induce the same, it can not be recovered back. The People, for use of Macon County, v. Foster et al. 496.

3. Where the county board, acting within the general scope of its authority, and with knowledge of the facts, settles with a county officer, who is guilty of no fraud, concealment or misrepresentation of fact inducing its action, and pays from the county treasury the amount found due to such officer upon auditing and examining the officer's report, it will be treated as a voluntary payment of money, and no action will lie against the sureties on the officer's bond, to recover the same back. Ibid. 496.

43-133 ILL.

ADVERSE POSSESSION. See LIMITATIONS, 9, 11.

AFFIDAVIT.

NOTICE OF TAX PURCHASE. See TAXATION AND TAX TITLES, 2 to 5.

AGENCY.

ACTS OF AGENT BINDING ON PRINCIPAL.

1. A person acting as the financial agent of an insurance com-
pany, who is entrusted with the management of the company's loans,
securities and real estate, when acting within the scope of the ap-
parent power, will bind his company by his acts. Union Mutual
Life Ins. Co. v. Kirchoff, 368.

RATIFICATION BY PRINCIPAL.

2. By accepting benefits of agent's acts. A principal can not be
allowed to accept and hold a deed made by a party under a contract
with his agent, and at the same time repudiate the agreement made
by his agent. By retaining such deed, and the rights thereby ob-
tained, he will ratify the acts of his agent, and be compelled to
perform the contract on his part. Ibid. 368.

ALLEGATIONS AND PROOFS. See PLEADING AND EVIDENCE.

AMENDMENTS AND JEOFAILS.

DEFECTIVE PLEADING.

1. Cured after verdict. See ARREST OF JUDGMENT, 3, 4.
TRIAL WITHOUT ISSUE ON PLEA.

2. Cured after verdict. See PRACTICE, 16.

ANNEXATION TO CITIES.

EFFECT UPON SCHOOLS.

In the territory annexed. See SCHOOLS, 1 to 5.

APPEALS AND WRITS OF ERROR.

APPEAL FROM APPELLAte Court.

1. In what cases-constitutional provision. The General Assem-
bly is empowered by section 11, article 6, of the constitution, to
create inferior appellate courts, from which the records may be
brought by appeal or writ of error to this court, "in all criminal
cases, and cases in which a franchise or freehold or the validity of
a statute is involved, and in such other cases as may be provided by
law." Commercial Union Assurance Co. v. Scammon, 627.

2. The records in the cases specifically enumerated in the con-
stitution come to this court by virtue of the constitution, and there-
fore they can not be restricted or limited. But in other cases the
records can not come to this court at all unless the General Assem-

APPEALS AND WRITS OF ERROR.

APPEAL FROM APPELLATE COURT. Continued.

bly so provides, and having the power to totally exclude, the power
to limit or qualify is included. Commercial Union Assurance Co.
v. Scammon, 627.

3. Presumption-in support of the action of that court. On affirm-
ance of the judgment of the trial court by the Appellate Court, it
will be presumed that the latter court did decide that the verdict
was not against the law of the case and the instructions of the
court. Chicago, St. Louis and Pittsburg Railroad Co. v. Gross,
Admr. 37.

4. So where there is no right of review of the decision of the
Appellate Court, the decision of that court as to how much and
what investigation was required in a particular case, must neces-
sarily rest in the court itself. When it has decided, it will be pre-
sumed it has done all that is required in order to decide correctly,
and this can not be rebutted. Ibid. 37.

5. Should the Appellate Court arbitrarily refuse to pass upon a
question presented by the record, and arbitrarily refuse to certify the
evidence in respect thereto to this court, the remedy will be man-
damus to compel that court to act upon the issue and certify the
evidence, and not resort to a court of equity. Commercial Union
Assurance Co. v. Scammon, 627.
WHETHER A FREEHOLD INVOLVED.

6. On bill to redeem.

Where a party, by bill, seeks to redeem his
land sold under a power in a mortgage, on the ground that the pur-
chaser agreed to give that right on payment of the principal and
interest, and the validity of the mortgage, or the sale under it, is not
questioned, no freehold is involved, and an appeal from a decree
dismissing the bill for want of proof, lies to the Appellate Court.
Ryan v. Sanford, 291.

7. In such case, a decree in favor of the complainant would only
establish his right to redeem—a right he might or might not avail
himself of. The gain or loss of the freehold depends upon subse-
quent acts. Therefore, one party does not necessarily, from the
decree, gain, and the other lose, the title to the land. Ibid. 291.

8. On bill to foreclose, or to set aside decree for fraud. A free-
hold is not involved in a proceeding to foreclose a mortgage, nor
on a bill to set aside a decree of foreclosure, on the ground of fraud.
The holder of the mortgage in such case claims only a lien on the
premises for the payment of his debt. Wilkinson v. Gage, 137.

REVIEWING THE FACTS.

9. Affirmance by Appellate Court. Unless this court can see there
is no evidence tending to support a material element of a case, it
must accept the judgment of affirmance in the Appellate Court as

APPEALS AND WRITS OF ERROR. REVIEWING THE FACTS. Continued.

settling the facts necessary to make out the plaintiff's case in his
favor. Hinckley v. Horazdowsky, 359.

10. In cases based on negligence resulting in injury, the deci-
sion of all questions of fact is committed by law to the jury, subject
to revision by the trial judge, and subject to further revision by
the Appellate Court on appeal. After the judgment of the trial court
has been affirmed by the Appellate Court, the law conclusively pre-
sumes that all questions of fact were properly disposed of by the
jury, and this court has no power to revise the action of the sub-
ordinate tribunals in relation thereto. Chicago, Milwaukee and
St. Paul Ry. Co. v. Wilson, 55.

11. Where no question of law is presented in the judgment of
the Appellate Court affirming that of the trial court, the judgment
of the Appellate Court is conclusive. Dwelling House Ins. Co. v.
Butterly, 534.

12. Determining the facts by Appellate Court-presumption. The
law requires the Appellate Court to pass upon questions of fact as
well as questions of law, and in the absence of anything in the
record showing otherwise, it will be presumed that the court has
discharged its duty. So where the Appellate Court affirms the judg-
ment of the trial court, it will be presumed, in the absence of
anything appearing to the contrary, that the facts were all duly
considered, passed upon, and found sufficient to support the judg-
ment. Pennsylvania Co. v. Backes, 255.

13. Reciting the facts by Appellate Court differently from the
finding in the trial court. The recital of the facts found from the
evidence by the Appellate Court differently from the trial court, is
a judicial act, and an error in that respect is in no manner different
from any other erroneous ruling or decision. Commercial Union
Assurance Co. v. Scammon, 627.

APPEAL BOND.

CONSTRUCTION.

1. Rule of construction. See CONTRACTS, 5.

MEASURE OF DAMAGES.

2. In suit on appeal bond. See MEASURE OF DAMAGES, 1.

APPELLATE COURT.

DAMAGES ON DISSOLUTION OF INJUNCTION.

1. Power of the court to make the award. See INJUNCTIONS, 1.
REFUSAL TO DECIDE-OR CERTIFY EVIDENCE.

2. Remedy by mandamus. See MANDAMUS, 1.