Volume 1 — Illinois Appellate Court Reports

<p>Appeal from the Criminal Court of Cook county; the Hon. W. W. Harwell, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.</p>

<p>1. Parties—Misjoinder—When not to be pleaded.—To recover in actions ex contractu, a cause of action must be established against all the defendants, or there can be no recovery against any. A plea verified by affidavit under the 36th section of the Practice Act, denying joint liability, is unnecessary where it affirmatively appears from the plaintiff’s testimony that parties are made defendants against whom no cause of action is made out.</p> <p>2. Contract—Rescission—Recovery op money paid.—Where it appears that the vendor, under a contract to sefl real estate, is not in default, the vendee cannot rescind the contract of purchase, and recover back the money paid thereon, unless he first place himself in a position to demand of the vendor a compliance with the terms of the contract on his part, and the vendor refuses.</p>

<p>Impeachment of witness.—It is not an imperative rule that impeaching testimony should relate to the character of the witness for truth and veracity at the time and place where he lived when he gave his testimony. General reputation at a former period and in- another neighborhood, may or may not tend to prove that issue, according to the remoteness of the time and place, and other circumstances.</p>

<p>Cobpobate purposes—Employment op attorneys to wind up affairs of Corporation.—Till defendant was a corporation. One of its directors and the acting president became involved in a difficulty as to co>-porate affairs, with the otheixlirectors, resulting in a suspension of the business of the corporation. The treasurer and all the other directors employed plaintiffs as attorneys, to counsel and assist the company in respect to the difficulty with the president, and to transact the legal business of the company. Plaintiffs, in the course of such employment, filed a bill to close up the affairs of the company. Held, that the services rendered in closing up the affairs of the corporation were for a corporate purpose, and should be paid out of the corporate funds.</p>

<p>Error to tlie Circuit Court of Cook county; the Hon. John €r. Rogers, Judge, presiding. .</p>

<p>Error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.</p>

<p>Ebbob to the Circuit Court of Cook county; the Hon. W. W. Fabwell, Judge, presiding.</p>

<p>11. Bill of exceptions—When to be filed—Presumption.—It will be presumed that the judge would not have signed a bill of exceptions unless it was presented to him in proper time, and whatever delay may have intervened after it was signed and before it was filed, will be presumed to have been occasioned by the pressure of other engagements on the part of the judge, or his failure to deliver it to appellant for filing, and not by any neglect of the appellant. The burden of establishing such neglect, if any exists, is on appellee.</p> <p>2. Signing in vacation.—It is immaterial whether, at the time the order to file the bill nunc pro tunc was made, the court was in session or not; the presumption is that it was presented to the circuit judge within the thirty days, and that for reasons for which he alone is responsible, it was not actually filed until after the thirty days had expired.</p>

<p>1. Special contract—Evidence.—The only evidence to prove the special contract relied on by the defense, was the testimony of appellee herself, that Mrs. Stephani informed her that appellant would make collections for appellee for ten per cent. There was no evidence that appellant agreed to or even knew of the representations of Mrs. Stephani to appellee. Appellant denied making any such contract. Held, that the evidence was incompetent, and failed to establish the claim of appellee as to the specific agreement.</p> <p>2. Agency—Ratification.—Before a person can be held to have ratified by his conduct the voluntary act of another, done for his benefit, it must appear that he acted with full knowledge of all the material facts and circumstances connected with the assumed agency.</p> <p>3. Instructions.—The following instruction asked by appellant was proper and should not have been refused: “ On behalf of plaintiff the court further instructs the jury to disregard and pay no attention whatever to that part of the evidence which relates to the terms on which it is claimed Mrs. Stephani stated to the defendant, Mrs. Kendall, that the.plaintiff would take the claims for collection.” '</p>

<p>Error to the Superior Court of Cook county ; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Error to the Superior Court of Cook county. The Hon.. Joseph E. Gart, Judge, presiding. '</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Ekastus S. "Williams, Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Ekboe to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.</p>

<p>1. Limited partnership—Formation—Statutory requirements. —In order to the formation of a limited or special partnership, the provisions of the statute must be at least substantially complied with. The provisions of the statute in this state in relation to the formation of limited. partnerships, contemplate not only that the certificate and affi davit mentioned shall he filed and recorded in the office of the county clerk, Inti that they shall remain on file in his office; these requirements are of the very substance of the statute; and merely depositing them in the office of the county clerk for the purpose of filing and recording, and afterwards withdrawing them, would not be a substantial compliance therewith.</p> <p>2. Special partner—Limiting liability.—A special partner, before he can claim the protection of the statute as to the limit of his liability, must see that all its requirements are complied with, and if he fails So to do, the limitation upon his liability is destroyed, whether that failure is intentional or arises through mistake or inadvertance.</p> <p>3. In this case the certificate and affidavit were sent by a messenger to the county clerk’s office, and presented for record, but the deputy clerk instead added a certificate of the official character of the notary before whom they were acknowledged, and they were brought away by the messenger, and several months afterwards returned to the county clerk’s office, and filed and recorded. As against a creditor whose debt accrued before the papers were returned to the clerk’s office, held, not a substantial compliance with the statute.</p>

<p>Appeal from the County Court of Cook county; the Hon. Mason B. Looms, Judge, presiding.</p>

<p>Practice—Scire Facias.—Where no writ of error has actually been issued, a plaintiff in error has no right to the writ of scire facias until a transcript of the record is filed in the Appellate Court.</p>

<p>Appeal from the Circuit Court of Cook county; the lion. Henry Booth, Judge, presiding.</p>

<p>1. Tbying cases out of obdeb—Pive-day rule.—The Practice Act provides a uniform practice in courts of record in respect to taking up and disposing of actions ex contractu, out of their order on the docket, where there is no substantial defense. The rule of the Superior Court, known as the five-day rule, establishing a different practice, is inconsistent with the general law, and therefore void.</p> <p>2. Amendments—Practice.—Where a plaintiff had been allowed to amend his declaration so as to materially change the issues formed, it was error to refuse the defendants leave to file additional pleas, to meet the issues thus formed.</p>

<p>Appeal from the Superior Court of Cook county, the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Suit on an appeal bond—Discontinuance as to one obligor, by reason oe bankruptcy.—In a suit against two defendants upon a bond, where one of the defendants pleads his bankruptcy, it is no doubt proper practice to proceed with the suit against all the defendants to final judgment, notwithstanding the adjudication in bankruptcy, and then enter an order staying execution against the bankrupt until the question of his discharge is determined; but it does not follow that no other course can be pursued. The plaintiff may discontinue as to the defendant alleging bankruptcy, and proceed to judgment against the other defendant. The obligation, which is the foundation of the action, is by statute declared to be joint and several, and the plaintiff may so treat it.</p> <p>2. Levy oe execution—Rot always a satisfaction.—A levy upon a sufficient amount of personal property, is for some purposes deemed in law a satisfaction of the judgment; but it is a satisfaction sub modo only, and if, without the fault of the officer or the plaintiff, the levy becomes unavailing, it is not a satisfaction of the judgment.</p> <p>3. Estoppel by recitals in the bond.—The bond sued on recited a judgment, and covenanted for its payment upon its affirmance in Supreme Court, and the obligors are estopped by such recitals to deny the existence of a valid, unsatisfied judgment at the time the bond was executed. Although there had been-a levy upon sufficient property to satisfy the judgment, yet appellants, by interposing their appeal bond to Supreme Court, suspended all proceedings under the levy, and they cannot now be permitted to insist that the levy was itself a.payment and satisfaction of the judgment.</p> <p>4. Proof of affirmance of judgment in Supreme Court.—The third and fourth pleas being held insufficient' on demurrer, the only remaining pleas were non est factum and payment of the judgment. The plea of non est factum only put in issue the execution of such a bond as was described in the declaration, and was fully met by the introduction of such a bond as was declared on. The plea of payment is a plea of confession and avoidance, and put in issue no averment of the declaration. Hence the averment that the judgment was affirmed, not being traversed, was admitted, and appellees were not bound to prove it.</p> <p>5. Trying cause out of its order—Discretion of the court.—Were the record silent as to the grounds upon which the court acted in directing the cause to be brought on for trial out of its order, a presumption might be indulged in favor of the exercise of the discretion of the court below, but it affirmatively appears that the case was taken up under the “ five-day rule ” of the Superior Court, and not otherwise; hence any presumption of the exercise by the court of its discretion upon other grounds is excluded, and the action of the court must find its justification in the rule alone.</p>

<p>1. Deceit—Motive—Implied ebaud.—In. an action for deceit in the sale of personal property, the representation made must be untrue, the party making it must know that it is false, and the party to whom it was made must have relied on the representation as true, and have been induced to act upon it. But when these facts exist, it is immaterial what may have been the actual motive with which the representation was made. If a party makes a representation which he knows to he false and which is calculated to induce another to act upon it, and thereby occasions an injury, the law implies fraud, and it is not incumbent upon the plaintiff to prove a fraudulent motive.</p> <p>2, Evidence oe good chabacter.—In actions of this character, evidence of general business integrity is not admissible to repel the presumption of fraud.</p> <p>8. Declarations oe agent.—The representations in question were made by a broker in negotiating the sale of a promissory note; Held, that the making of such statements was fairly within the scope of his agency, and that the general power to negotiate would by implication inehide the power to give such information as would ordinarily be called for.</p> <p>4. Prooe oe claim in bankruptcy.—The fact that the plaintiff had proved his claim in bankruptcy against the defendants, and received a dividend thereon, do'es not estop him from proceeding against the defendants in an action for deceit in making the sale.</p>

<p>1. Distress for rent—Death of tenant pendente lite—Survivorship of action.^A proceeding against a tenant for the collection of rent, whether it he by the common law actions of covenant, debt or assumpsit, or by distress, survives upon the death of the tenant, and may be prosecuted against his executor or administrator. Such a proceeding is made by statute analogous to proceedings in cases of attachment, and the rules of practice in attachment are adopted and made applicable to proceedings by distress for rent.</p> <p>2. Amendment of judgment—When to be upon notice.—By mistake of the clerk in entering up judgment in this case, the substitution of the executrix as party defendant was overlooked, and the judgment was entered against the deceased tenant. Nearly eighteen months after the entry of judgment, an order was entered correcting the judgment, but without notice to plaintiff in error; Held, that while courts have authority over their records to correct clerical errors, and, if done at the term in which judgment is rendered, without notice, it is error to allow an amendment, even in matters of form, at a subsequent term, without notice, and an amendment so made is a nullity.</p> <p>3. Awarding execution—Generad and special.—The judgment as originally entered, awarded a general execution and also special execution against the property distrained. Afterwards, on notice to plaintiff in error, an order was entered directing that the judgment he paid in due course of administration, but the order for special execution against the property dis-trained was left unchanged ; held, that the first amendment being a nullity, the record still showed a judgment against the deceased tenant, and the order to pay the judgment in due course of administration had. no force.</p> <p>4. Release op property by bond.—The property distrained was released by giving bond as provided in the statute. Held, that the specific lien upon the property seized was thereby at an end, and it could not be taken from the executrix by special execution. The only remedies left the landlord were by enforcing payment in due course of administration, or by suit upon his bond. ,</p>

<p>1. School districts—Power to issue bonds—Vote—How determined.—The right of school directors to issue bonds of their district, is made dependent upon a vote of the people of the district. The question whether there has been an election for that purpose, and a vote in favor of issuing bonds, is left by the Legislature to be determined by the directors of the district, two of whom are required to act as judges, and one as clerk of the election, and their determination of the question is final as to all bona fide purchasers for value of such bonds.</p> <p>8. Recitals in bonds—Estoppel.—Where bonds issued by school directors contain recitals that they were issued by virtue óf a vote of the district, and according to law, the district is estopped to deny that such vote had been taken, the bonds being in the hands of a bona fide holder.</p>

<p>1. Revenue—Bill to bestbain collection of a tax—When allowed.—A bill in equity to restrain the collection of a tax will not be sustained, except in cases where the tax is unauthorized by law, or where it is assessed upon property not subject to taxation, or where the property has been fraudulently assessed at too high a rate.</p> <p>2. Excessive valuation—Ebaud.—Excessive valuation alone is not sufficient to warrant the interference of a court of equity to restrain the collection of a tax. In the absence of fraud the valuation fixed by the officers charged by law with the duty of making the assessment, is final, and cannot be reviewed by the courts.</p> <p>3. Duty of assessob—Failure to call fob a schedule.—Had the assessor entirely failed to call upon appellees for a list of their taxable property, and based his estimate upon information otherwise obtained, such omission on his part would have been an irregularity only, and would afford no ground for restraining the collection of the tax.</p> <p>4. Application to township board—Duty op tax-payer.—The law provides an adequate remedy against excessive taxation by application to the township or county board to have the same reduced, and it is the duty of the tax-payer feeling himself aggrieved by an assessment to apply there for relief. Ijo notice to him that an assessment of his property has been made is necessary. Every owner of personal property is deemed to know that the same is liable for taxation; the law fixes the time of the meeting of the township board for hearing objections to assessments, of which he is bound to take notice, and it is incumbent upon him, if he would insure protection against an excessive assessment, to make due inquiry, and if an assessment has been made of his property, to appear before the proper board, and ask for a review.</p>

<p>1. Revenue—Increase of assessment by county board.—The addition by the county board to the valuation of personal property in one town, without a corresponding reduction in the valuation in other towns, thereby increasing the aggregate valuation beyond what was actually necessary and incidental to a-proper and just equalization, is without authority of law and void.</p> <p>2. Payment oe illegal tax—Duress.-—The payment of a tax levied under an illegal assessment, while the warrant for its collection is in the hands of the collector, and with a view of avoiding a threatened levy and sale, cannot be deemed a voluntary payment, but made under such duress as will entitle the tax-payer to recover it back.</p> <p>3. Action to recover tax paid.—In order to recover an illegal tax paid under duress, resort must be had to a suit at law. A recovery cannot be had by a proceeding in equity to restrain the collector from paying over such tax.</p> <p>4. Bill in equity—Multiplicity oe suits.—In this case the tax was paid by a bank upon its capital stock owned by individual stockholders, and it was insisted that a bill in chancery would lie, to prevent a multiplicity of suits. Held, that all moneys paid by the bank in excess of the legal tax cannot be said to have been paid for the stockholders, but were moneys of the bank, and could be recovered in the corporate name of the bank; that it being an illegal tax, the bank could not set up its payment for taxes as a defense against the demands of the shareholders for their dividends.</p> <p>5. Collector paying over aeter notice.—The bank having given the collector notice of its rights in relation to the money in dispute, and demanded of him re-payment, he cannot, by paying over the money according to the terms of his warrant, escape his liability to an action on the part of the bank to recover the same back.</p>

<p>Commissions op broker—Change in terms op sale.—The commissions of a broker for the salé of real estate are due when he has found a purchaser who buys the property, and his right to such commissions is not affected by a modification or change of the terms of payment, made between the buyer and seller, different from the terms first given by the seller to the broker.</p>

<p>1. Practice—Affidavit of plaintiff’s claim—Sufficiency.—An affidavit accompanying the declaration that “ the demand in the above entitled cause is for the amount due on a promissory note, a copy of which is hereunto attached in possession of the defendant, and there is due to the plaintiff from the defendant, after allowing to him all just deductions and set-offs, five hundred and eighty-four dollars and sixty-two cents, with interest from December 28,1877,” is not a substantial compliance with Sec. 37 of the Practice Act; it does not state the ‘‘amount due from the defendant to" the plaintiff,” nor does it state such facts as furnish the basis_for a calculation of the amount due.</p> <p>2. Reference in affidavit to other papers.—An allusion in an affidavit to a copy of a note, without any apt or proper words making such copy a part of the affidavit, will not authorize the court to refer to such copy for any purpose connected with the affidavit.</p> <p>3. Construction of statute.—The statute permitting a plaintiff to file ' with his declaration an affidavit of the amount due, and authorizing judgment thereon, upon failure of the defendant to file with his plea an affidavit of merits, is remedial, and should receive such interpretation as will meet the obvious intent of the legislature in its enactment.</p>

<p>1. Lien for materials—Requisites of petition—Failure in proof. —It is requisite to the creation of a lien for materials furnished in the erection of a building, that the contract for furnishing such materials should specify some definite time within which the materials are to be furnished, and a petition to enforce such a lien should so allege. It is equally necessary that such time should be proved or admitted on the hearing, and a failure to make such proof is fatal.</p> <p>2. Variance.—The contract as alleged, was to - furnish hardware to Edwin A. Rice, at the usual market price. The proof did not show that all the hardware was to be furnished at the usual market price, but that on some articles a discount was to be made; and the proof further showed a contract with Edwin A. Rice & Co. These variances must be regarded as substantial.</p> <p>3. Waiver of lien by accepting a note.—It was further objected that the claim for lien was waived by the acceptance of a note for the balance due, and that the decree was defective in declaring a lien upon the five houses en masse; but since Rice & Co. were personally liable for the goods, and there is evidence tending to show that the goods were furnished, not for each house respectively, but for the whole, as a whole, and that they were under one roof, the court is not prepared to say. that the objections are well taken.</p>

<p>1. Restoring lost records under burnt records act—Secondary evidence.—The relief afforded to parties under the Burnt Records Act, is not exclusive, but cumulative, upon the rights and remedies existing independently of its provisions. Where a judicial record is shown to be lost or destroyed, resort may be had to secondary evidence to prove its contents. Notwithstanding some portions of the record were restored under the provisions of the Burnt Records Act, secondary evidence of other portions not so restored, may still be given.</p> <p>2. Practice in restoration op records—Notice.—Where the surety on a bail bond had no notice of the proceedings by which the affidavit and pleadings in the case were restored, the restored record, at least so far as he was entitled to be heard on the question of its correctness, was, as to him, a nullity. To that extent it could not be received in evidence against him, or his legal representative. But, had such surety been served with notice of the petition to restore the declaration and pleas in the case, it is difficult to see upon what principle he would have been entitled to object that the copies offered to be substituted were not true copies of the original. He was in no sense a party to the suit, and had no interest in the subject matter, except so far as establishing the identity of the cause of action.</p> <p>3. Restobihg- affidavit fob capias—Notice to sukety oh the bail bohd.—The liability of the surety on the bail bond, was directly dependent upon the sufficiency of the affidavit upon which the capias issued, and he was therefore directly interested in seeing to it that the original affidavit was restored with literal accuracy, and before the restored affidavit could be made competent evidence against him or his administrator, he should have been notified, so that he might have an opportunity to appear and object; therefore, there having been no notice to the surety of the restoration,' the burden of proof was upon the party offering, of proving the contents of the original affidavit by secondary evidence, precisely as though no steps had been taken to restore the same.</p> <p>4. Bail bohd—Valid though hot ih double the amouht ehdobsed upoh the wbit.—A bond, although taken in a sum less than the statute requires, may still be held to be a valid bond, at least at common law. The provisons of the statute requiring the sheriff to take a bail bond in double the sum for which bail is required, are directory merely, and a bond taken for a less sum is valid and may be enforced.</p> <p>5. New tbial—Newly disoovebed evidence.—The only proof of the sum endorsed on the writ, was the evidence of one witness, who testified that it was either §3,000 or §3,500. After the entry of judgment, and during the same term the affidavit of this witness was given in support of a motion for new trial, stating that the witness now recollected positively that the sum endorsed was §1,500. If the validity of the bond depended upon the amount endorsed upon the writ, the testimony of the witness, according to his subsequent recollection, would set the question at rest, and being decisive of an important question involved in the litigation, the appellant should have been accorded an opportunity of introducing it.</p>

<p>1. Appeal from justice op the peace—Practice—Summons to codependant.—A defendant against whom no judgment was rendered in the trial before the justice, need not be summoned to appear in Circuit Court as a party defendant, on appeal by a co-defendant against whom a judgment was rendered below. In perfecting an appeal, it is necessary to bring before the Circuit Court only those persons who were parties to the judgment appealed from.</p> <p>2. Secondary evidence—Record op deed.—Before á party is entitled to read in evidence the record of a deed, it is incumbent upon him to show by proper proof, that the original deed is lost, or not in his power to produce in court; and that to the best of his knowledge, it was not intentionally destroyed or disposed of for the purpose of introducing a copy thereof as evidence.</p> <p>3. Premature action—Performance of condition precedent.— The testimony showed that the money, which was the subject matter of the suit, was to be paid upon the dismissal of a certain suit then pending. This action was brought before dismissal of such suit. Held, that the dismissal of the former action was a condition precedent to payment of the money, and an action begun before such dismissal, was prematurely brought.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. W. W. Fabwell, Judge, presiding.</p>

<p>1. Injury to workman: by negligence of fellow workmen— Orders by superintendent—Instruction to jury.—An instruction that the orders of a superintendent, when given in the presence and hearing of his principal or employer, are to be considered by the other employees as the orders of his principal, if no objection or dissent is made at the time the orders are given, is erroneous, its effect being to relieve the foreman of all responsibility, and make the contractor responsible for orders he never gave, and had not the necessary knowledge about the peculiar kind of work, or the condition of its progress, to judge of their correctness.</p> <p>2. Instruction as to negligence.—A further instruction, “ that if the jury find, from the evidence, that the defendant was guilty of gross negligence, the plaintiff will be entitled to recover, even though he may have been guilty of a comparatively slight degree of negligence,” is erroneous. It tells the jury that if they find the defendant was guilty of gross negligence, the plaintiff would be entitled to recover, whether such negligence contributed to the injury complained of or not.</p> <p>3. Providing suitable machinery—Liability of contractor.— Where a contractor engaged in the erection of a building has provided suitable and safe machinery for the use of his employees, and such machinery is on hand and can be used, and any of the employees, through negligence or error in judgment, select and use machinery of insufficient size and strength, whereby an injury results to a co-employee, the contractor is not liable for such negligence or error in judgment, provided the employees were persons of adequate skill, and careful, prudent persons.</p>

<p>Appeal from the Superior Court of Cook county, the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.</p>

<p>1. Conveyance to pay debts—Statute on limitations.—The testimony showed that Horan, appellee’s intestate, conveyed to Lill certain personal property to pay a claim of certain persons against Horan. Held, that the cause of action as shown was the breach of an express contract, and it appearing that the claim was fully paid by Lill in 1865, the cause of action against him for any surplus after such payment arose then, and this action is barred by the Statute of Limitations.</p> <p>2. Pboof—Variance.—It being expressly stated to be a conveyance of property for certain declared trusts, in consideration of certain indebtedness of the grantor to the grantee, such consideration becomes material to be shown, and a variance in this respect between the declaration and proof is fatal.</p> <p>8. County court jurisdiction—On appeal.—The claim declared upon was a conveyance of property to be held, used and disposed of for the benefit of the creditors of the grantor. The grantee then, according to the declaration, became a trustee, and the property and its proceeds a trust fund, which the cestui que trust alone could pursue,.and only in a court of equity. The claim as declared upon, was not within the jurisdiction of the county court, and the Circuit Court on appeal can only take the same jurisdiction as the court below.</p>

<p>1. Bill of exchange—Essential requisites.—A bill of exchange must be payable at all events, not dependent on any contingency, nor payable out" of a particular fund; and it should be for the payment of money only, and not for the performance of any other act, or in the alternative.</p> <p>2. When payable upon a contingency.—The following instrument held not to be a ME of exchange, because made payable upon a contingency: “ Please pay to the Excelsior Stone Co. for stone for your buildings, six hundred doUars in instaEments, as foUows : §200 out of first estimate, or when the first floor joists are in; $200 when the building is ready for the roof; $200 when the stoops are finished, and charge the same to my account.”</p> <p>3. Happening of the contingency.—Where the payment depends upon a contingency, the happening of such contingency will not change the character of the instrument. It was not a bill of exchange when made, and would not become such by matter ex post facto.</p> <p>4. Payable out of a particular fund.—It appearing from the testimony in the case, that the drawer of the above instrument had contracted with the drawee to erect certain buildings, and was to receive his pay therefor in installments as the work progressed; held, that the reasonable intendment to be given the above instrument was, that it was to be paid out of a particular fund, viz : out of installments due the drawer under his contract with the drawee, and hence the instrument lacked an essential quality of a bill of exchange.</p> <p>5. Agency—Ratification.—While the-mere silence of a principal may, under some circumstances, be deemed'a ratification of the acts of a pretended agent, yet a mere failure to disavow such acts instantly upon being apprised of them, will not ipso facto be a ratification.</p>

<p>1. Payment by fbomissoby note.—Where parties agree to accept a promissory note in payment of a debt, the taking of such note in pursuance of the agreement, merges the original cause of action in the note, and a recovery, if had at all, must be had upon the note. And if such agreement was in fact made, and a note given in pursuance thereof, the creditor cannot rescind such contract for the purpose of suing upon the original cause of action by simply returning the note.</p> <p>2. Instructions.—Where the evidence tended to show that the plaintiff accepted a note in payment of the original debt, an instruction to the effect that if the jury believe, from the evidence, that the defendants paid the plaintiff the bill in question by their note, and the plaintiff accepted said note as payment, then such payment was a satisfaction of the bill; and the fact that the plaintiff afterward gave said note to defendant’s bookkeeper would not ' revive said account, unless it should appear from the evidence that the bookkeeper had authority to receive the same; and unless it further appear that there was an agreement cancelling the acceptance of said note and reviving said bill, was proper, and should have been given.</p>

<p>1. Tendee—In actions op toet.—By the statute relating to tender, defendants in actions of tort as well as defendants in actions ex contractu, have the right to make tender to the plaintiff of such sum as they shall conceive sufficient amends for the injury done, and for costs if suit has been commenced, and if it shall appear that the sum tendered is sufficient, the plaintiff will not be allowed to recover any costs incurred after such tender.</p> <p>2. Effect of a plea of tender—Admission of liability.—A plea of tender is an admission of liability, and the defendant is estopped by the ' record from denying that he is indebted to the plaintiff in the sum named in his plea.</p>

<p>1. Corporations—Liability of stockholder, etc., under the STATUTE, FOR UNPAID STOCK—MANNER OF PROCEEDING AGAINST— Statute construed.—A creditor of a corporation may bring suit in any of the usual forms of action, for an indebtedness due to him from such corporation, and upon sueing out summons may at the same time sue out a garnishee summons against any of the stockholders whose subscription to the capital stock is wholly or in part unpaid, and by the service of such summons upon the stockholder, may prevent further payment to the corporation for such stock, and hold the same in abeyance, to await the result of the trial of the original cause; and when a recovery is had, the garnishee maybe compelled to respond to such judgment creditor instead of paying his indebtedness to the corporation.</p> <p>2. Proceeding under the statute.—If the cause is commenced and conducted according to the statute, the whole proceeding will constitute but one case, and upon the trial of the issues formed upon the answers of the garnishees, the Court will take judicial notice of the judgment against the principal debtor.</p> <p>3. Proceeding by the usual process op garnishment—Proop op judgment.—But where the creditor having obtained a judgment against the corporation, seeks to enforce the liability of the stockholder by a subsequent, independent proceeding of garnishment in the usual manner upon such judgment, the proceeding is essentially different, and proof of the judgment originally obtained against the corporation must be made upon the trial of the issues against the garnishee.</p> <p>3. Denial op liability—Burden op proop.—The garnishees having answered, denying that they were stockholders, and had never been subscribers to the capital stock in said corporation, the burden of proof was upon the party insisting upon their liability as stockholders to show that they were such.</p> <p>4. Certified copy op articles op incorporation as evidence.—A certified copy of articles of incorporation, wherein the names of the garnishees appear as subscribers to the capital stock, is incompetent evidence for the purpose of overcoming the answers of the garnishees denying that they ever subscribed to such capital stock, without showing in some way that they were parties to the original articles of incorporation.</p> <p>5. Limit op liability—Individually, not jointly.—By the terms of the statute, the liability of the stockholder is limited by the amount of his subscription unpaid at the time of service of the [garnishee summons, and such liability is individual, not joint. The statute does not intend a joint liability as partners.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Pabol contbact—Payment to be made in land—Statute of fbauds.—A party who, under a parol contract, has rendered services in payment for land, cannot repudiate or annul the contract on the ground that it is within the Statute of Frauds, and recover the value of his services, there being no default on the part of the other contracting party.</p> <p>2. Refusal of vendob to bebfobm—Implied contbact.—Where one through his own act or neglect cannot, or availing' himself of the right arbitrarily given by the statute, will not, perform an express agreement for which he has received a consideration, the law, from the circumstances, will imply one that will bind him, at least to return the consideration received; but so long as the vendor is in no default, but is able and willing to convey according to the terms of the parol contract, the purchaser who has executed it on his part by payment in money, property or labor, cannot annul or avoid it, and recover the amount paid or the value of the labor performed.</p> <p>3. "Voidable contbact—Pbbfobmance by pubchaseb.—A parol contract for the purchase of lands, although it cannot be enforced against the vendor, by reason of the prohibition of the statute, is yet not void. It remains a lawful contract, resting upon a lawful consideration. The party who has performed has thereby put it out of his power to repudiate on his part, and he has no right or authority to repudiate it for the other, who might, for himself, if he would, but who chooses rather to perform; and the purchaser is without remedy until he puts the other party in- default.</p>

<p>1. Contributory negligence—Evidence.—The jury having by their verdict exonerated the plaintiff from, the charge of contributory negligence, the court is not inclined, from what evidence appears in the record, to question the correctness of that finding.</p> <p>2. Prevention of accidents—Duty of corporation.—The officers of a corporation are not required or expected to do every possible thing that human energy or ingenuity can do to prevent the happening of accidents or injuries to its citizens. When they have exercised reasonable care, diligence, judgment and foresight in that regard, they have discharged their duty to the public.</p> <p>3. Drawbridges—Construction of barriers.—In the management of these dangerous passage-ways, the city is not bound to so construct and manage them as to render accidents impossible, but'only to exercise such a degree of care, prudence and judgment as prudent and careful men may be reasonably expected to exercise in view of the dangers involved. The character of safeguards around such bridges must necessarily be left, in the first instance, to the judgment and discretion of the proper city officers, and it is only when they have failed to exercise reasonable care and prudence in that respect that the city can be held liable.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>- Appeal from the Circuit Court of Cook county;- the Hon. W. W. Harwell, Judge, presiding.</p>

<p>1. Promissory note—Option to declare the whole sum due on failure to pay interest.—An instrument in the usual form of a promissory note, with interest coupon notes attached, but containing a clause that if default be made in the payment of any installment of interest when the same becomes due, and such default shall continue for thirty days, then the principal sum shall, at the election of the holder of said note, become due and payable, such election to be made at any time after said thirty days, without notice, is such an obligation as is denominated in law a promissory note.</p> <p>2. Contract of guaranty—Not affected by form of the note.— In construing the contract of guaranty thereon, it is immaterial whether the instrument is technically a promissory note or not. It is an obligation, the performance of which the guarantor had aright to guarantee, and the undertaking of the guarantor is that the maker of the note shall meet his undertaking according to the terms and spirit of the contract, and on a failure so to do the contract of guaranty is broken, and the liability of the guarantor arises.</p> <p>3. When liability of guarantor becomes fixed—Notice of election.—The guarantor is liable on his contract when the holder of the note elects to declare the whole sum due by reason of default in payment of interest, even though the principal sum is not due, by the terms of the note. Bringing suit is sufficient notice of the election of the holder of the note to declare the whole sum due.</p> <p>4. Advancing cause—Five-day rule.—Taking a cáse from its regular place on the docket and trying it out of its order, under the provisions of a rule of the Superior Court known as the five-day rule, is erroneous, the provisions of said rule being in contravention of the Constitution, and the statute regulating practice in courts of record.</p>

<p>Appeal from the Superior Court of Cook county ; the Hon. Samuel M. Moore, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook comity; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>'1. Foreign corporations—Jurisdiction over in this state— “Residence. ”—Jurisdiction attaches by act of the party and not by virtue of a State law, which has no other force than to authorize such act; and a corporation organized in one State, may by comity or consent, lawfully remove its officers, agents and effects into another sovereignty, and there exercise its corporate functions and franchises. When it has done so, its “ residence ” for the purposes of jurisdiction, is where its business is done in the latter State.</p> <p>2. Service upon—Statute op limitations.—The statute provides how service of process may be had upon foreign corporations operating within this State. The ability to obtain such service is the test of the running of the statute of limitations; and where it appears that such corporation had been continuously doing business by its agents in this State for more than two years prior to the commencement of this action, and hence had been subject to the jurisdiction of the courts of this State for such period, the action was barred by the statute.</p> <p>3. Service upon a common agent op two corporations.—The issuance of a summons against one corporation, is not the commencement of a suit against another distinct corporation, though served upon a person who was the common agent of both.</p>

<p>1. "Warehouses—Compelling delivery op grain.—If the place of consignment can he reached "by any track, of which the railroad company is the owner or lessee, or in the lawful use, or which can he lawfully and rightfully used by it, the company is bound to deliver at that place. But this is the extent of the duty imposed by the Constitution. The contrary interpretation would involve the fundamental law in the absurdity of commanding the performance of an unlawful act. .</p> <p>■ 2. Delivery over track- oe another company cannot be compelled.—Where a portion of the track over which the, defendant company must run its cars, in order to deliver grain at the warehouse in question, belongs to another company, and no right has been obtained by the defendant, by purchase or otherwise, to use such track "for that purpose, it cannot be compelled to make such delivery; nor can it be compelled against its will, to procure the right so to do. The legal aspect of the case is not changed by the fact that the owner of such connecting side-track has interposed no objection to the use of this track by the defendant company in the past.</p> <p>3. Right of warehouse owners to construct connecting sidetracks.—Had the owners of the warehouse themselves constructed tracks, side-tracks, etc., in and about their warehouse, suitable for the economical and convenient delivery of grain to said warehouse, and extended the same to the track of the defendant railroad company, and asked to be allowed to form a junction with that track, a very different class of questions would have been presented.</p> <p>4. Right of a majority of co - proprietors to control the business.—Whatever may, ordinarily, be the power of a majority in interest over the business of a public warehouse, their right to exercise such control, in utter disregard of the rights and wishes of the minority, cannot be conceded; and under the facts in this case, the majority have not entitled themselves, as against the rights of the minority, to the relief prayed for in the supplemental bill.</p>

<p>1. Practice—Filing amended pleas—Imposing terms.—Leave to amend pleadings necessary to present an issue on the merits of a cause is no longer discretionary with the court, but is the legal right of the party, -and where proper application is made for leave to amend pleas, on sustaining a demurrer thereto, the court has no right to require the defendant to show by an affidavit of facts in detail, a meritorious defense to plaintiff’s action. Such terms cannot be imposed as a condition of amending pleas, under the statute authorizing amendments.</p> <p>2. Meaning op “just and reasonable” terms.—The terms “just and reasonable,” as employed by the legislature in the Practice Act, obviously have reference to the rules of practice then existing by the common law, and'contemplate no other or different terms than would be just and reasonable, judged of by that practice.</p>

<p>1. Suit on appeal bond—Declaration—Variance.—In a suit upon an appeal bond, the plaintiff is bound to show a breach, and in describing the judgment appealed from he is bound to set it out with such reasonable accuracy as to identify and distinguish it from others. An allegation of a judgment against two, does not so describe, and is not supported by proof of a judgment against one only.</p> <p>2. Allegation of breach—Evidence in support of.—The bond sued on was conditioned “ to pay all rents becoming due from the commencement of the suit,” etc., and plaintiff averred that rent was due to the amount of §22-5. In 'support of this, plaintiff testified that the original lease was destroyed in the great fire, and produced a paper which he testified was “ a substantial copy ” of the original lease; and that he was positive it was correct as to the parties and the rent. Held, it was not sufficiently shown to be a copy; the proof upon that point was too uncertain, and involved matter of opinion as to what "was of the substance of the lease.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Pleadings in chanceht—Prayer for injunction.—Where a proceeding is commenced in chancery for relief by way of injunction, the prayer for an injunction must not only be in the prayer for relief, but in the prayer for process.</p> <p>2. Roads—Injunction to restrain highway commissioners.—The jurisdiction of a court of equity to afford preventive relief by injunction, to restrain commissioners of highways from appropriating private lands to the use of the public for a highway, is undoubted. Proposed acts of this kind constitute a continuing trespass and may cause irreparable injury. Preventive relief by way of injunction, in cases of this character, is the primary equity, but the jurisdiction, in the first instance, must rest upon the necessity for an injunction, and if the threatened danger be not real, and its prevention urgent, the jurisdiction will not attach.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>1. Pbactice—Motion fob new tbial—-Ebbobs examined though no wbitten points filed.—Errors of the court, below are always subject to review upon appeal, when its action is preserved by hill of exceptions properly taken during the progress of the trial, although a motion for a new trial be not made.</p> <p>2. Negligence—Due cabe—No presumption of law—Bubden of pboof.—In an action against a municipal corporation for damages arising from the negligence of the corporation in keeping its sidewalks in repair, the question, whether the plaintiff was exercising due care at the time of the accident, is one of fact for the jury to find from the evidence, the law presuming nothing- in that regard, and the burden of proof is upon the plaintiff to show affirmatively that she was exercising due care.</p> <p>3. Due cabe defined.—Due care is that degree of care that a reasonable and prudent person would exercise under all the circumstances of the case.</p> <p>4. Conflicting testimony—Pkopeb instbuctions.—Where the evidence upon the question whether the injury received was not the result of the plaintiff’s own negligence, is so conflicting that the jury could have found either way upon that point without doing violence to the testimony, it is essential that the jury should he accurately instructed.</p> <p>5. Pboof of due cabe—Rule as to.—It is not intended to establish an absolute rule, in all cases, that the plaintiff must introduce independent evidence of due care upon his part, but that it must appear affirmatively as a fact in the case; and if from all the facts and circumstances in proof surrounding the transaction it thus appears, it will be sufficient; otherwise independent proof must he introduced upon that point.</p>

<p>1. Statute of limitations—New pkomise.—To take a case out of the Statute of Limitations, by new promise, the promise must be. made to the party seeking its benefit, or to some one authorized to act for him. A promise to a stranger is insuEcient to establish a promise to the plaintiff or the party whom he represents. Evidence (if properly admitted, which the court does not concede) of a decree of divorce, wherein it is recited that the complainant had stipulated in open court, and it was so decreed, that she would pay a certain debt due" to K., does not constitute a new promise as to K. He was no party to the record, and from anything that appears to the contrary, was wholly unacquainted with the proceedings in the divorce case.</p> <p>2. Conditional promise will not revive a debt.—Notwithstanding a party may promise to pay a debt barred by the statute, still, if the promise is a conditional one; or the person promising it at the same time protests against the payment, or that he has a set-off which ought to he deducted, it is insufficient to take the case out of the statute. The promise should be considered in connection with the refusal to pay, as well as the claim of set-off, and the whole admission taken together.</p> <p>3. Proof of previous consideration.—To sustain an action upon a new promise founded on a debt barred by the Statute of Limitations, the previous consideration must be proved.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Putnam county; the Hon. John Burns, Judge, presiding.</p>

<p>1. Evidence—promptness in payment of debts.—In a suit for the payment of an alleged debt, evidence that a party was prompt in the payment of his debts is admissible. It is always allowable to show the necessity of the creditor, and the ability of the debtor as circumstances tending to show payment, and promptness in payment is as proper to be shown as ability.</p> <p>2. Admission of evidence relative to other proceedings in court.—Under the circumstances of this case, it was not error to admit evidence of proceedings to probate a will wherein the subject matter in this suit was in question, it being a circumstance tending to shed light upon the intention of appellant and of the deceased, as to whether there was a liquidation of the claim at $3,000, and a promise to pay.</p> <p>3. Objection to question as being too general.—The general question “just state what the arrangement between you and your father was,” is too broad, as an answer, if permitted, would have allowed the witness to have testified fully in relation to conversations or transactions about which the other interested witness had not spoken. It was the duty of counsel to have called the attention of the witness to the particular transaction or conversation mentioned by such other interested witness.</p> <p>4. Instructions.—Modifications by the court.—A modification by the court of an instruction which has the effect to mislead the jury, is a substantial error for which the cause will be reversed.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. Joseph W. Cochrane, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah McBoberts, Judge, presiding.</p>

<p>1. Dram shop law—Sale op liquors without license.—The dram shop law prohibits the sale without license of certain specified liquors and an expression of these must, under a familiar rale, be held to be an exclusion of all others not enumerated, hence no license can be required for the sale of fluids not included among those for the sale of which a license is necessary.</p> <p>2. Sale op cider—Proof of intoxicating qualities.—The object of the Legislature in declaring that spirituous, vinous and malt liquors, were intoxicating, was to render it unnecessary to prove it on the trial. Cider not being a fluid belonging to either of the classes mentioned, is not intoxicating by legislative enactment, and in a prosecution for selling cider as an intoxicating liquor, proof should he made that such fluid is intoxicating.</p> <p>3. Proof.—Although Courts have said that jurors might, from their own knowledge alone, determine that whiskey, brandy and other liquors, which are always intoxicating, were so, this should not he so as to that which might, or might not be an intoxicating fluid when sold.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>Appeal from the City Court of Aurora ; the Hon. Frank M. Annis, Judge, presiding.</p>

<p>1. Trespass—Hunting- on the enclosures oh others.—The fact that the defendants were in pursuit of wolves or other animals feres natures, and dangerous to mankind, for the purpose of their destruction, gives them no license to trespass with impunity upon the lands of others.</p> <p>2. Practice—“Waiver of instructions.—A waiver of the right to ask the Court to give instructions to the jury does not preclude a party from assigning errors of law on an appeal.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Josiah McBobebts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Joseph W. Cocheare, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Josiaii McBoberts, Judge, presiding.</p>

<p>1. Master and servant—Evidence tending to.show want of negligence.—In an action against appellant for the death of one of his workmen, caused by the explosion of a steam boiler belonging to appellant, evidence was offered to show that there was no negligence on the part of appellant, because by the explosion the loss to appellant was §20,000. Held, that such evidence was properly excluded.</p> <p>2. Defective instructtons—Not cured by others not defective. —In a case of this character, substantially defective instructions of an important character are not cured by others not containing the imperfections.</p> <p>3. Liability of employer—Knowledge by the employee of the defect.—An instruction as to the liability of an employer, which informs the jury that they may find, for the plaintiff if they (among other things) believe from the evidence: that the death was caused by a defect in the boiler, which was known to the defendant; that the deceased was in the exercise of ordinary care; and that the explosion was not caused wholly or in part by the deceased, is erroneous, because it omits to mention also the important fact that the deceased was not aware of the defects which caused the explosion.</p> <p>4. No recovery if the servant had knowledge of the defect. —Although the explosion was not caused by the fault of the deceased, yet if he was aware that the boiler was defective in those particulars which caused it to explode, there can be no recovery, even though the deceased may have exercised the greatest care to prevent the explosion, or to have kept out of the reach of its injurious effects.</p> <p>5. Defects for which employer will be held liable.—In order to make the employer liable for defects known by him to exist, the defects should be of a character which he could by exercising skill have ascertained would be likely to produce the explosion. There might have been defects, and these might have produced the explosion, and they might have been known, and yet they may have been such as no amount of care and caution on the part of the employer would have disclosed to be dangerous and to be guarded against as such.</p> <p>6. Employer not an insurer of employee.—An employer is not an insurer of his employee against accidents from defective machinery. The rule is diligence, perhaps high or in the highest degree ; still there can be no liability without some neglect to do that which ought to be done to have the machinery safe.</p>

<p>1. Railroads—Passing under train—Negligence.—Under ordinary circumstances, and without any encouragement from the servants of the company that it might be safely done, a person attempting to pass a train of cars to which an engine was attached and liable to be set in motion at any moment, by crawling under the cars, would be guilty of such gross neglig-ence as» would prevent a recovery.</p> <p>2. Instruction—Invitation by the conductor to pass under.—An instruction to the effect that if the train was negligently left across the street, and it was impossible to pass without going over or under the train; that the conductor called out to the deceased to “come on under, you will have plenty of time;” and that deceased, relying upon such invitation, attempted to go under, using such care as an ordinarily careful man would use under the circumstances, etc., the defendant would be liable, is erroneous, it being liable to be understood by the jury as meaning that if the deceased exercised reasonable care while passing under the car, it would excuse him, though it might have been grossly negligent for him to have accepted the invitation. All the facts stated in such instruction might have been true, and still the deceased have been guilty of great negligence.</p> <p>3. Instructions on the part op the appellant.—An instruction asked by appellant to the effect that if the jury believe that a man using ordinary care and prudence would not crawl under a freight train, to which he knew or had means of knowing, a locomotive was attached, liable to start at any moment, even if invited so to do by the conductor of the train, etc., they should find for the defendant, should have been given. It contains an accurate statement of the law. If it was not ordinary care and prudence, though invited, to crawl under a car, under such circumstances, no recovery should be had. The conductor and the deceased might both be grossly negligent, the former for giving and the latter for accepting the invitation, and if both were grossly negligent or equally in fault, no recovery could be had.</p> <p>4. Invitation by conductor.—Under the circumstances of this case, the invitation by the conductor to the deceased to come under the train, should be taken into account along with the other circumstances of the case, in determining whether the deceased exercised due care and caution in attempting to pass the train in this manner.</p>

<p>1. Cities—Cabe required m constructing sidewalks.—Cities are not insurers against accidents, nor are they required to so construct their sidewalks as to secure immunity from injury when used, but they fulfill their duty to the public in that regard when such walks are reasonably safe for persons exercising ordinary care and caution when using them.</p> <p>2. Liability by reason op part ownership of building.—It appeared that in the construction of the building where appellee was injured, the city, desiring a hall for its use, entered into an arrangement with the owners of the land, whereby the city, with others, was to complete the'upper story of the building, keep the same in repair, and was then to be a part owner of such upper story. There was no proof that the city had any interest in the land on which the building stood, or in the lower story, or any control over the building of the basement where the injury happened. Held, no liability attached to the city on the ground of ownership.</p> <p>3. Liability of city for permitting stairways in streets.—In considering the degree of negligence properly attributable to a city in allowing the construction of stairways as entrances to basements from the street, it is not to be judged of,from the fact of one accident, but rather what would have been the course of prudent persons prior to the accident. Would it be considered that the sidewalk was unsafe by reason of such entrance? And, considering the character of the entrance with reference to the use of the street as a public way, would it be considered as likely to cause an injury?</p> <p>4. Burden of proof.—In cases of this character, the burden of proof is upon the plaintiff to show, not only that the defendants were negligent, but that at the time of the injury he was in the exercise of due care for his personal safety.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Geo. W. Pleasants, Judge, presiding.</p>

<p>1. Prosecution for bastardy—Weight of evidence.—In prosecutions for bastardy where the prosecutrix swears positively as to the paternity of the child, and the defendant with equal certainty denies the allegations, if the parties stood upon a perfect equality in every respect, there would be no preponderance of evidence, but it must be conceded that for many reasons the testimony of one witness is entitled to more weight than that of the other, even where their interests are equally balanced, and under such circumstances the court cannot say the jury were not authorized in finding that upon this point the evidence preponderated in favor of the prosecutrix.</p> <p>2. A civil proceeding—Settlement—Burden of proof.—Such a prosecution is in the nature of a civil proceeding, and it is therefore competent for the parties interested to make a valid settlement of the claim, and a receipt given, expressing to be in full settlement of the case, is prima facie evidence of a full settlement, so that the burden of asserting the contrary is upon the party seeking to impeach the receipt, to be established by a pre-' ponderance of testimony.</p> <p>3. Instructions—Must be based on evidence.—It is not error to refuse an instruction where there is no evidence upon which to base it, and where, if given, it would have the effect of taking from the jury the consideration of a material fact in the case.'</p>

<p>1. Interest—Rate peb cent.—Appellant agreed with appellee, in consideration that the time for procuring a certain loan (arising from a sale of lands) should be extended until a settlement could be made with a prior-mortgagee, to pay appellee interest upon the money remaining due upon the land after a certain date; but no rate of interest was agreed upon. Held, that appellee was entitled to recover at the rate of six per cent. only.</p> <p>2. Practice—Remittitdb—Costs.—Appellee having remitted from the judgment all above six per cent., the judgment will be affirmed for that amount, but as there was error in the record before the remittitur was entered, the costs of the Appellate Court must be taxed against the appellee.</p>

<p>1. Practice—Bill of exceptions must contain all the evidence. —A bill of exceptions must state that it contains all the evidence in the case, or it will be presumed that there was sufficient evidence to sustain the finding.</p> <p>2. Evidence—Competency of witness.—In an action by a wife for damages sustained in consequence of intoxication of her husband, caused by sale of liquor to him, the husband is a competent witness in behalf of his wife.</p>

<p>1. Contract for service—Discharge before expiration of term —Evidence justifying such discharge should be admitted.— Appellee sued, appellant for damages for being discharged before the expiration of his term of service. On the trial appellant alleged, in justification of such discharge, that appellee had been guilty of indecent conduct toward a maid servant of appellant’s; had made unwarranted complaint of the quality of the food furnished, and as between himself and a co-laborer shirked the work given him to perform. To support these allegations, appellant offered to show by the maid servant that she had refused, on account of appellee’s conduct to her, to remain longer in appellant’s service if appellee was retained; also that the character of the food was good a,nd satisfactory to other workmen. Held, such testimony was competent and should have been admitted.</p> <p>Quaere — Whether the court will consider an assignment of error for failing to give an instruction asked by defendant, when the bill of exceptions fails to show that all the given instructions for defendant are in it.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. E. S. Leland, Judge, presiding.</p>

<p>1. Chattel mortgage—When title vests.—After condition forfeited in a chattel mortgage, the title to the property becomes vested in the mortgagee, and the fact that the mortgage contains a provision that the mortgagee shall have the right to take possession of, and sell the property mortgaged at public or private sale, does not- prevent the property from vesting in the mortgagee, or a purchaser from him.</p> <p>2. Validity not appected by irregularity in sale.—An irregularity in the sale of the mortgaged property would not affect the validity of the mortgage, or deprive the mortgagee or his assignee of the right to take possession of the mortgaged property.</p>

<p>Error to the Circuit Court of Lake county; the Hon. T. D. Murphy, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. D. McCulloch, Judge, presiding.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p>

<p>1. Proof of -service—Certificate of clerk.—It was insisted that the decree in this case was erroneous, because the record did not show that summons was ever served upon one of the defendants. Held, that the record showed nothing in respect to the return of the writ. The certificate of the clerk in the record, 'that' the summons was returned, never having been served, constituted no part of the record. The clerk can certify only to what he finds upon the records and files in his office. If any return had been made on the writ he might have copied it into the record, but this he has failed to do.</p> <p>2. Fact of service found by the decree—Presumption.—The decree rendered in the case, finding that the defendant was duly served with process at least ten days before the commencement of the term, it will be presumed from such finding, that evidence of the fact was heard and the party properly in court.</p> <p>3. Rb-sale by master without order of court—Sale not necessarily void.—Although it is not the correct practice for the Master to re-sell the property without an order of court, on the failure of the purchaser to comply with the terms of sale, still, if the master does re-sell upon his own responsibility, it would not necessarily be sufficient ground to hold the second sale void.</p> <p>4. Defective notice of sale.—The decree required the Master to give notice by publication, three successive weeks, and by posting up written or printed notice's in three public places. No notices were in fact posted, and publication was made for only two weeks. Held, that the Master derives his authority from the decree alone, and must pursue it substantially, or his acts will be set aside. ■</p> <p>T>. Decree for attorney’s fees—Not allowed unless claimed in the bill.—No allowance for attorney’s fees can be made in the decree, even upon a default, when no claim is made therefor in the bill, even though the mortgage contained a provision for payment of attorney’s fees in case of foreclosure, etc. A default admits nothing except what is properly pleaded. A defendant may choose to suffer default rather than incur the expense of a defense, but a complainant cannot be permitted, after a default, to prove against a defendant a claim, which, if asserted in the pleading, he might have chosen to defend.</p> <p>6. Decree in vacation—Appeal at subsequent term.—Where an appeal was prayed at the same term at which the decree purports to have been rendered, though in fact the decree was subsequently signed in vacation, and the prayer for appeal remained undisposed of until the November term, following, the Court had the power to make an order allowing the appeal at the latter term.</p> <p>7. Parties in foreclosure—Subsequent mortgagee should be made.—Where the record disclosed that a certain person had an interest as assignee of a subsequent mortgagee, it was error to render a decree of foreclosure without making him a party to the proceedings.</p>

<p>1. Pbomissoby note given fob threshing—Defense,, that tumbling-rods were not boxed.—A bare tumbling-rod to a threshing machine, unprotected in some manner, is dangerous per se, and dangerous by legislative enactment; and this fact constitutes a defense to an action on a promissory note given for threshing.</p> <p>2. Attempt to secure tuMbling-bod—A question fob the jury.— If there had been any attempt to secure the shafting by boxing, or any other substituted contrivance, it would then become a question of fact for the jury to determine whether the threshers had secured the shafting.</p>

<p>Deed oe married woman—Acknowledgment—Waiver oe homestead.—Under the statute in force April, 1871, relating to the acknowledgment of deeds by married women, the homestead right of the wife must appear to have been expressly released by her in the body of the deed, as well as in the certificate of the officer taking the acknowledgment. And where in the body of the deed the release of the homestead right appears to be expressly limited to the husband, the wife will be held not to have relinquished her homestead right by joining in the execution of the deed, though it would be sufficient to release dower.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Josiah McRoberts, Judge, presiding.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding.</p>

<p>1. Lease for a year—To commence in futuro—Lessee liable for use and occupation.—Under a contract for renting for a year, to commence in futuro, where the lessee actually takes possession of the premises and occupies them, he will be liable for the use and occupation, though the contract as an executory one, may be void under the Statute of Frauds.</p> <p>2. Repairs by tenant.—Unless there was an express agreement on the part of the landlord to repair, the tenant must take the premises ás he finds them, and he cannot recover for repairs made by him, or damages sustained by reason of a want of repairs.</p> <p>3. Apportioning costs—Discretion of court not reviewable.— The apportionment of costs, on appeal from a justice, is the exercise of a discretion not reviewable on error.</p> <p>4. Costs allowed for witnesses not examined.—It does not necessarily follow that witness fees should not be allowed because the offered evidence was excluded, nor because the witness was not examined. A witness may properly be summoned to meet some anticipated evidence, which is not offered because the witness is present, when it would be if he were absent.</p> <p>5. Withdrawing evidence from the jury.—Although admitting improper evidence and afterwards excluding it, would not alone be sufficient ground for a reversal, if it could be seen that such admission did no harm, . yet where it is plainly apparent that the admitted evidence constituted the only basis on which a verdict was found for the appellee, the exclusion of such improperly admitted evidence was in effect a mere theory of no practical benefit to the appellant, and the case should be reversed.</p>

<p>Appeal from the Circuit Court of Carroll county; the Hon. William Brown, Judge, presiding.</p>

<p>1. Mechanic's lien—Special contract—Requisites op petition.— Where a petition for enforcement of a mechanic’s lien undertakes to set out a verbal agreement, between the petitioners and the defendant, to furnish materials, and that the defendant was to pay for the same within five or six months from the time the same was delivered, it becomes a special contract and it is also necessary to allege the time when the materials were delivered.</p> <p>"2. Implied contract — Pleading to be taken most strongly against the pleader,—Under the present statute a party may declare upon an implied contract, or upon one partly express and partly implied, but there being no intimation in this case of an implied contract, an allegation of some portions of the contract and a failure to allege other portions leads to the inference that the unstated portions were such as could not with safety he averred.</p> <p>3. Sale under decree—Payment op surplus.—In a petition for a mechanic’s lien, where there is a mortgage upon the property sought to be charged, a decree of sale under such petition should direct that if any surplus alises at the sale, it should be paid over to the holder of the mortgage, or held subject to the further order of the court.</p> <p>4. Lien against subsequent incumbrancers.—A mechanic’s lien cannot be enforced against any incumbrance unless suit is brought to enforce, the same within six months after the last payment becomes due.</p>

<p>1. Suit by town against an officer—Action on his bond not exclusive.—In an action by a town in its corporate capacity to recover money received by one of its officers to its use, the remedy ,by action upon his official bond is not exclusive, but the town having the capacity by statute to sue and be sued may have its remedy at common law therefor.</p> <p>2. Treasurer of highway commissioners—not entitled to commissions for paying out monby.—The act of 1872, allowing the treasurer of the commissioners of highways, commissions upon all sums received and paid out by him, was superseded by the act of 1878, and a treasurer of such commissioners is not entitled to retain, as commissions, two per cent, of the moneys of the town received and paid out by him for road purposes during the year 1874.</p> <p>3. .Construction on statute—Retroactive laws.—It was insisted by appellee that the statute of 1875, allowing such commissions was retrospective, and this gave him authority to retain such commission. Held, that the statute was not retrospective. Courts will not give to a law a retroactive operation, even where they might do so without violation of the Constitution, unless the intention of the Legislature be clearly expressed in favor of such retrospective operation.</p> <p>4. Constitutional prohibition.—The Constitution declares that the General Assembly shall never grant or authorize extra compensation or allowance to a public officer after service rendered, hence the claim of appellee to such commissions under the Act of 1875, cannot be sustained on the ground that the statute is retroactive, for it would then be doubtful if the Act itself could be sustained.</p>

<p>1. Instrument in the nature oe a mortgage—Agreement by married woman.—Appellant’s intestate, 'in his lifetime, conveyed to appellee S., a married woman, certain land, and took from her an instrument in the nature of a mortgage to secure the deferred payments, her husband not joining in such mortgage. Appellee S. afterwards conveyed the premises to C., subject to the lien of the vendor aforesaid, who in turn conveyed the premises to P. and W., with notice of the lien, and who purchased subject thereto. Held, that although a deed or mortgage executed by a married woman without her husband joining is void as a conveyance of real estate as to her;, though of her separate estate, that was not the question in this ease; but whether a married woman can make any kind of a contract in writing by which, in equity, she can create a lien upon her real estate to secure her indebtedness for an unpaid portion of the purchase money.</p> <p>2. Such agreement good in equity.—Although such an agreement would not operate as a mortgage by reason of the disability of coverture, it is valid in equity to create a lien or security for (he debt.</p> <p>3. Laches.—It was insisted that appellants, were 'guilty of such laches as should prevent them from having relief under a claim of a vendor’s lien; but appellees having expressly agreed to pay the unpaid purchase money, and having deducted that amount from the price they agreed to pay, it does not become them to complain of laches which they could so easily have prevented by paying an honest debt.</p> <p>4. Wend'or’s lien.—Appellees having actual notice of the unpaid purchase money, and having assumed to pay it, whether the"mortgage is a good contract in equity, or an absolute nullity, there is a vendor’s lien here for an amount which they have agreed to pay, and equity and good conscience require that they should do so.</p>