passed before it received the notice. It must be admitted that this is true. But the notice, which was published on November 30, required the defendant to appear at a term which began thereafter, to-wit: on December 2; and the statute requires, that the notice to be mailed by the clerk within ten days after the first publication thereof shall be a copy of the published notice. Both the notice published and the notice mailed must be of the same character. It was held in the Lawver case, that a part of the publications might be made after the beginning of the return term. This being so, the same inconsistency, of which counsel speak, would exist in the case of such publications made after the beginning of the return term, as exists in the case of the notice mailed by the clerk. The notice published after the beginning of the return term requires the defendant to appear on the first day of a term already passed; and, if it is valid, then the notice which is mailed by the clerk, being of the same character, is equally valid. In case of service by publication, the notice is designed to inform the defendant of the contents of the writ. He is presumed to know the provisions of the statute. When he receives a notice by mail requiring him to appear on a day which has passed, he knows that the date thus named in the notice is the return day of the writ, and that, although the return day has passed, it is not yet too late for him to appear, because the statute provides that, after all the notices have been mailed and published, ten days must elapse before a default can be taken against him.

Our conclusion is, that the Elmer Dearth Agency, the defendant in the attachment suit, was properly served by publication, and that the appellee, Doran, had a right to take the judgment which was entered up by him on December 26, 1895. That judgment was a valid judgment, and was not void for want of jurisdiction in the Superior Court to render it. It follows, that the Superior Court was correct in entering up judgment against the appel

lants who are garnishees, and in dismissing the petitions of the appellants who are petitioning creditors.

Accordingly, the judgment of the Appellate Court, in affirming the judgment and orders entered by the Superior Court, must be affirmed.

Judgment affirmed.

D. T. MICHAEL

V.

THE PEOPLE ex rel. W. E. Peabody.

Opinion filed December 22, 1897— Rehearing denied February 15, 1898.

The questions involved in this case have been disposed of in the opinion rendered in the case of Hoover v. People ex rel. (ante, p. 182.)

APPEAL from the County Court of Christian county; the Hon. LYMAN G. GRUNDY, Judge, presiding.

J. C. MCBRIDE, for appellant.

A. H. RANES, City Attorney, E. A. HUMPHREYS, State's Attorney, and JOHN E. HOGAN, for appellee.

Mr. CHIEF JUSTICE PHILLIPS delivered the opinion of the court:

The questions involved in this case are substantially, if not exactly, the same as those which have been fully considered and decided at the present term of this court in the case of Hoover v. People ex rel. (ante, p. 182,) and this case must be controlled by what has been there decided. For the reasons there stated the judgment of the county court of Christian county in this case is reversed, and the cause remanded for further proceedings in conformity with the opinion in the Hoover case.

Reversed and remanded.

GEORGE W. MILTIMORE et al.

V.

CHARLES H. FERRY et al.

Opinion filed December 22, 1897-Rehearing denied February 3, 1898.

1. CONTRACTS-intention of parties must be determined from the contract itself. The ultimate object in construing a contract is to arrive at the intention of the parties, which intention is to be determined from the contract itself, and not from the previous statements, understandings or agreements of the parties.

2. SAME-compromise agreement construed as extinguishing a warranty in original contract. An agreement between a car-wheel company and a wheel tire company to compromise suits arising from the former's refusal to pay for certain tires on account of an alleged breach of a warranty that they should be made of a certain kind of steel, by which the tires are to be delivered at the original price and the tire company is to make good all actual damage sustained by the wheel company by reason of defects in material or manufacture of the tires, extinguishes the original warranty.

3. APPEALS AND ERRORS-chancellor's finding not disturbed unless clearly against evidence. The findings of a chancellor upon the testimony of witnesses examined in open court will not be disturbed on appeal, unless clearly against the evidence.

Ferry v. Millimore, 64 Ill. App. 557, affirmed.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding.

PECK, MILLER & STARR, for plaintiffs in error.

GREEN, ROBBINS & HONORE, for defendants in error.

Mr. JUSTICE CRAIG delivered the opinion of the court: This writ of error brings up for review the judgment of the Appellate Court for the First District, reversing the decree of the circuit court of Cook county and remanding the case with directions. The suit in the circuit court was a bill filed by George W. Miltimore in October, 1886, against Charles H. Ferry, the Chicago Tire and Spring

Works, the Miltimore Elastic Steel Car-Wheel Company, the Union National Bank and William C. D. Grannis, for an accounting, and to enjoin the enforcement or transfer of certain notes and mortgages given by Miltimore to Ferry. The case was heard before the circuit court upon the original and supplemental bills of complaint as amended, answers thereto, a cross-bill by Ferry and answers thereto and issues thereon, and upon the report of the master to whom the case was referred, and the evidence and exceptions to such report.

In March, 1883, defendant in error the Chicago Tire and Spring Works was a corporation engaged in the county of Cook in the manufacture of car-wheel tires, and the defendant in error Ferry was a stockholder in and the treasurer of the company. On the same date plaintiff in error the Miltimore Elastic Steel Car-Wheel Company was a corporation engaged in the manufacture of car-wheels at Arlington, in the State of Vermont. In this company plaintiff in error Miltimore was vice-president and a large stockholder. On the 23d of March, 1883, the parties made the following contract:

"CHICAGO, 23d March, 1883.

"The Chicago Tire and Spring Works:

"DEAR SIRS-We hereby agree to purchase from you the under-mentioned car-wheel tires, viz.: 100 tires 30 in. outside dia. 2 in. thick; 600 tires 33 in. outside dia. 2 in. thick; 300 tires 42 in. outside dia. 2] in. thick; price 5} cts. per lb. f. o. b. Chicago; terms cash thirty days; deliveries in lots as required, on or before the first day of January, 1884. You have the option of delivering double the quantity and in above proportion at same price and terms.

THE MILTIMORE ELASTIC STEEL CAR-WHEEL CO. By H. PENNOCK, President." On the back of the said contract was the following: "Blooms to be of Cammel Manfgr. and Siemens-Martin Steel.-F. M. ATKINSON, Prest."

A short time after the contract was made the number of tires was increased, by agreement, to 3000. After the execution of the contract the tire and spring works began

the manufacture of the tires. It imported from Europe 3000 steel blooms to be used under the contract. As the tires were made they were delivered, from time to time, until, in October, 1884, 1736 tires had been made, of which about 1228 were delivered at the factory of the car-wheel company in Vermont, and 508 at Garfield, Illinois, where Miltimore and Pennock, the president of the car-wheel company, had another car-wheel factory. As the tires were being delivered the wheel company gave to the tire works notes aggregating $20,500, some of which were endorsed by Miltimore and others by Pennock, and all the notes were transferred to Ferry. The notes not having been paid, Ferry instituted suit to enforce payment in the State of Vermont.

After the above suit was instituted the car-wheel company commenced suit in attachment against the tire works to recover $100,000 damages, incurred, as claimed, by breach of warranty and false representation as to the character and quality of the steel from which the tires were made. The claim was, that the tires were warranted "to be first-class steel car-wheel tires and to be made of the best quality of steel for that purpose, and to be equal in quality to the steel car-wheel tire known as the Midvale steel tire or any other first-class steel car-wheel tire," whereas, it is charged, the said tires "were not first-class tires and not made of the best quality of steel for that purpose, but of an inferior quality of steel that was too soft for the purpose of making steel car-wheel tires."

To the action on the notes the car wheel company interposed, in substance, the same defense as is shown by an affidavit filed by Miltimore in that action, as follows: "That said tires should be made of Cammel's best openhearth steel, and should be of first quality of steel, and as good or better than any open-hearth steel in use; that Cammel's best open-hearth steel was and is known to the trade as a special and superior kind or quality of steel peculiarly adapted to the manufacture of car-wheel