Volume 10 — Illinois Appellate Court Reports

Original petition for mandamus. At this term of this court the petitioners filed their petition for a writ of mandamus against Franklin Blades, one of the judges of the eleventh judicial circuit, to compel him to sign a bill of exceptions.

Josiah McRoberts, Judge, presiding. Action upon official bond of Horan as constable. The first count of the declaration avers a seizure of the goods and chattels of Byrnes by the constable, under and by virtue of an attachment writ against one Richard Crowe, and a disposing of them by the officer. The other counts allege the taking of the goods and chattels of Byrnes by Horan, under an execution or order of sale against said Crowe, and converting the same.

The Hon. O. A. Harker, Judge, presiding. This was an action of general indebitatus assumpsit, brought by the appellee against the appellant to recover for work done and materials furnished by him in the construction of the foundation of the Cook county court-house.

<p>Appeal from the Circuit Court of Livingston county. The Hon. N. J. Pillsbury, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Grundy county; the Hon. Francis Goodspeed, Judge, presiding.</p>

<p>1. Landlord and tenant—Distress eor rent by one holding by inheritance.—Appellee’s molher, the owner of the land in question died intestate, leaving surviving her husband, appellee’s father, and three children, besides appellee. Appellant afterwards rented the farm of appellee’s father, and paid rent to him until his death. Appellee afterwards distrained for rent against appellant. Held, that she could not lawfully distrain either at common law or under the statute, because the relation of landlord and tenant never existed between her and appellant. She was neither his lessor nor grantee, assignee, heir, or personal representative of any one who had been his lessor.</p> <p>2. Heir oe lessor may distrain.—Appellee derived title to a portion of the land as heir of her deceased father, who was the lessor of appellant, and for this portion she could maintain a distress.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.</p>

<p>1. Amendment of record.—The circuit court has power to cause an amendment to he made to its record so that the record shall speak the truth and it may order such amendment to be entered nunc pro tunc, but it can add nothing to the record.</p> <p>2. Amendment must be from minutes of the judge.—The judgment actually pronounced by the court can only be made to appear by the amendment, and such amendment can be made only in case there were some minutes of the judge by .which the record can be amended.</p> <p>3. Effect of amendment.—The amendment only makes apparent what existed before; the judgment is a unit. So, where an appeal was taken from a judgment imperfectly entered, such judgment included all that was then entered of record and the amendment.</p> <p>4 Amendment nünc pro tunc after reversal—Appeal nunc pro tunc.—Where an appeal to this court was taken from a judgment imperfectly entered," and the cause is reversed because there was no proper judgment to appeal from, and upon remanding, the judgment, was amended nunc pro tunc, and a second appeal allowed nunc pro tunc, this court will not consider the merits of the case on such second appeal. The former judgment of reversal is still in force, and there cannot be two appeals from the same judgment.</p> <p>5. Rehearing on amended record.—Parties have ample opportunity in this court to procure an amendment to the record, but by allowing a cause to go to hearing upon an imperfect record, they cannot he allowed to procure a rehearing of the case by bringing up an amended record after the cause had been remanded and filed in the court below,</p>

Josiah McRoberts, Judge, presiding. The declaration in this case is upon a bond signed by the defendants in the penal sum of $60,000, conditioned that one Philip Beitz, township treasurer of said township 35 N. R., 13 W., should faithfully discharge all of the duties of said office, etc., and the breach alleged is, that he failed to pay over to his successor the sum of $10,000 in his hands as such treasurer, when his term of office determined and his successor was appointed.

William Brown, Judge, presiding. The defendant in error recovered a judgment against the plaintiff in error, upon which execution was issued and placed in the hands of the sheriff, by whom it was afterwards returned unsatisfied. The defendant in error thereupon made his affidavit, and obtained an order based thereon for an execution against the body of his debtor, the plaintiff in error.

<p>Peactioe—Defective bell of exceptions.—Stipulations of parties can be made a part of the record only by a bill of exceptions.</p>

The Hon. A. A. Smith, Judge, presiding. The facts of this case briefly stated are as follows: Kate H. Lee, the daughter of the testatrix of appellants, and wife of one Henry R. Lee, died on the 21st day of December, 1876, intestate, leaving no children or descendants of children. At time of her death she was seized of some real estate in the State of Iowa, and possessed of about $14,000 worth of personal estate, consisting principally of notes and accounts.

<p>Jurisdiction—Validity on statute.—The question in this case involving the validity of a statute, this court has no jurisdiction of the appeal.</p>

<p>1. Criminal law—Certifying indictment from circuit to county court.—When an indictment is returned into the circuit court by the grand jury) the circuit court has discretion, either to retain the indictment for trial, or to certify the same to the county court for trial; and the exercise of this 'discretion does not depend upon the consent or non-consent of the defendant.</p> <p>2. Cannot certify to county court after arraignment and plea. —After a defendant has been arrested, given bail, been arraigned and has pleaded to the indictment, the circuit court has assumed jurisdiction of the cause, and it can not then certify it to the county court for trial, without the consent of the defendant.</p> <p>3. Jury in county court—Failure to summon in usual manner—■ "Venire facias.—When a jury has not been summoned in the manner provided by the statute, if a jury shall be demanded by either party to a cause, the court may issue a venire for twelve competent jurors, and can retain such jury for all jury trials at said term. A default of the officers charged with the duty of drawing petit jurors for the county court, will not prevent the court from obtaining a jury, if one he demanded.</p> <p>4. County court—Jurisdiction in misdemeanors.—The county court has jurisdiction in cases of misdemeanors, where the punishment is by fine "only, not exceeding $200. The jurisdiction of justices of the peace in such cases, is not exclusive. .</p>

Franklin Blades, Judge, presiding. Action to recover damages for personal injuries received by appellee through an alleged defect in a sidewalk within the village.

M. Trimble, Judge, presiding. Action by appellees to recover the price and value of certain goods sold to the wife of appellant upon his credit. The appellees are tradesmen, doing business in Princeton, and the appellant a farmer, residing at Ohio Station in the same county, about fourteen miles from Princeton.

<p>Statement.—This case involves the same questions as the preceding case, and is reversed for the same reasons.</p>

<p>1. Tenancy under lease executed subsequent to a mortgage— Relation oe tenan r to purchaser under mortgage sale.—The title acquired at a sale under a mortgage relates back to the execution of the mortgage, and the purchaser takes the title as then existing in the mortgagor, divested of sales, liens or leases subsequently made by the mortgagor or these claiming under him. Tenants under subsequent leases may be treated as trespassers by the mortgagee or purchasers, and ejected without notice.</p> <p>2. Demand oe rent by purchaser.—The single act of the mortgagee or purchaser, in demanding rent of such tenant, will not create the relation of landlord and tenant, when such demand has not been acted upon, so as to enable the mortgagee or purchaser to recover rent ei> nomine.</p>

<p>1. Promissory note—Payment.—The court is of opinion that the evidence wholly fails to support the plea of payment of the note in suit.</p> <p>2. Evidence—Declarations oe co-executor.—It is not error to refuse to allow the defendant to give evidence of statements made to him by a deceased executor in his life-time, in the absence of his co-executor.</p>

<p>Appeal from the County Court of Kane county; the Hon. J. W. Ranstead, Judge, presiding.</p>

<p>1. Judgments by confession—Jurisdiction.—In the entiy of judgments by confession under a warrant of attorney, the court obtains jurisdiction of the persons of the defendants by the appearance of the attorney. The latter is an attorney-in-fact, under a special and limited authority, which must be strictly pursued.</p> <p>2. Debt not due.—The statute authorizes confession of judgment upon debts due; but if, at the time judgment is taken, the debt is not due, the confession is not within the power given, and ¡he judgment is a nullity.</p> <p>3. Promissory note—Date.—A promissory note takes effect from the time of its delivery. The date appearing as such on its face is presumed to he that time, but not conclusively, even against the parties to it.</p> <p>4. Antedating a note.—Whenever justice requires it, the party to he injuriously affected by antedating a note may show the actual time of its delivery, and effect will be given or denied to the instrument accordingly. Subject to such proof an antedated note is as valid and effectual, from the time of its delivery, as if it were not antedated.</p> <p>5. Antedated notes—How construed as to having matured or not.—A note dated “January 3, 1879,’’ and payable “ one day after date,’’ will be deemed to be due at any and all times on and after January 7, allowing clays of grace. The fact that it was not- in existence nor delivered until the 25th of January would show that its operation during the interval was legally and physically impossible, but could not change the natural and proper meaning of its terms when it was delivered, and a judgment can he confessed thereon immediately upon the day of its execution and delivery.</p> <p>6. Fraudulent preferences.—The fact that the creditors who obtained judgments by confession bore intimate relations to the debtors, the delay in the levy of the executions, the unusual time and order under which the assignee took possession, and the agency of the same attorney in all the proceedings, though perhaps casting suspicion upon the proceedings, are not in themselves sufficiently strong to sustain an imputation of bad faith, or a charge of fraudulent preference.</p> <p>7. Levy of execution — Waiver of lien.—The executions in the hands of the officer were valid liens upon the property, and the subsequent deliveiy of the property by the officer to the assignee, did not divest such liens; the assignee took subject to the liens.</p>

<p>1. Governmental division of lands—Judicial notice.—Upon an application to vacate a sale of real estate sold era masse, on the ground that the land was susceptible of division, this court will take notice, without other proof, that the west half of a quarter section according to government survey, is made up of two forty-acre tracts.</p> <p>2. Sale en masse—Setting aside.—Where land capable of division, is sold en masse, it is an irregularity for which the owner is entitled to have the sale set aside, on equitable terms, upon a proper application therefor, made efore the time for redemption expires.</p> <p>3. Setting aside sale—Manner of proceeding.—Where the plaintiff in the execution is the purchaser, and has not conveyed the land, the proper course to set aside the sale is by motion; but if he has conveyed, or the land was purchased by a third party, the course would he by bill in equity.</p> <p>4. Presumption of ownership.—Where the record shows a purchase by the execution plaintiff, the presumption would be, until rebutted, that he had not conveyed his title.</p> <p>5. Assignment of judgment—Not a conveyance of land.—A mere sale and assignment of the interest of the execution plaintiff in the judgment under which the land was sold to him, does not operate to convey his interest in the land purchased.</p> <p>6. Assignment of judgment after sale.—An assignment of a judgment after an execution had been returned satisfied by sale of land, conveys only the contingent right of enforcing it by any lawful means in case the sale, return and certificate should be annulled. The right to receive redemption money, or a sheriff’s deed, in case of a failure to redeem, still attaches to the legal ownership of the certificate of purchase, without regard to the judgment.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. John G. Glenn, Judge, presiding.</p>

<p>Appeal from the Circuit Court of De Kalb county; the Hon. C. W. Upton, Judge, presiding.</p>

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

<p>1. Criminal Law—Judgment on demurrer.—It is error for the court upon sustaining a demurrer to defendant’s first and third pleas, to render a judgment of guilty, and impose a fine, while tlm -"'efenclant’s second special plea, and a plea of not guilty, are undisposed of. T 13 defendant is entitled to a trial upon such pleas.</p> <p>2. Verdict of guilty of lessee offense.—Upon the trial of a defendant upon an information charging him with assault with a deadly weapon, there was a verdict of guilty of assault and battery. Held, that the crime of assault is included in that of assault and battery, and the verdict shqws that the jury did not intend to acquit the defendant of the lesser offense for which he was on trial as well as the greater, and the judgment having been arrested upon his motion, he can not object to being again tried for the offense of which the jury did not acquit him.</p> <p>3. Twice in jeopardy.—When the jury found the defendant guilty of a lesser offense, it operates as an acquittal of the greater offense charged, and he can not again be put upon trial for the greater offense.</p> <p>4. Arrest of judgment—Revival of offense.—An arrest of judgment upon a verdict finding a defendant guilty of a lesser offense, does not revive the greater offense charged, but only the lesser.</p> <p>5. Plea of former conviction.—A plea that the defendant had been convicted before a justice 'of the peace for an assault and battery upon one person, and that such assault and battery was one and the same act and offense as that charged in the information, is good, although the person charged in the information to have been assaulted is not the person mentioned in the plea. If the same act constituted the only assault, there can be but one crime.</p> <p>6. Practice—Demurrer—Special plea.—Where a defendant in a criminal case files several special pleas, to some of which a demurrer is sustained and to others overruled, the prosecution may be allowed to reply or take issue as to such pleas as are sustained.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding.</p>

George H. Pleasants, Judge, presiding. This suit was brought by appellant against appellees to recover on a promissory note given by appellees to appellant for the sum of $943.10, and also on an open account for use of certain water power of appellant, let to appellees and used by. them for the purpose of propelling the machinery of appellees’ mill. The declaration was filed August 24th, A. D. 1877, and plea of general issue was filed September 5th, 1877.

<p>1. Mortgage—Foreclosure — Inverse order of alienation.— When a mortgagor has made successive sales of distinct parcels of the mortgaged premises to different parties, and the mortgagee brings a bill to foreclose, he will be required to sell in the first place, such parts, if any, as the mortgagor still retains, and then the parts that have been sold, selling in the inverse order of their alienation.</p> <p>2. Mortgagee can not release other security—Effect of release upon subsequent incumbrances.—If the mortgage embraces both land and personal property, or if the first mortgagee has additional security on personal property, and releases the same, or by his negligence loses it, with knowledge of a subsequent incumbrance or mortgage of the land, the subsequent incumbrancer may compel him, on foreclosure, to deduct from his mortgage debt the value of. the security released or lost.</p> <p>3. Mortgagee must have notice of subsequent incumbrance.— To affect the rights of the mortgagee in this respect, he must have actual or constructive notice of such subsequent incumbrance.</p> <p>4. What will amount to notice.—A first mortgagee is not hound, before foreclosure, to search the records for subsequent incumbrances; but if, after receiving the mortgage, he takes a deed or mortgage on a part of the same property described in the first mortgage, he is- driven to the record, and is bound by the notice which the record affords at that time.</p>

<p>Error to the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding,</p>

<p>1. Deposition—Suppressing.—An objection to the testimony of a witness when giving his deposition, which could be corrected by re-taking the deposition, comes too late when made for the first time on the trial of the cause.</p> <p>2. Depositions.—Where a deposition contains evidence pertinent to the issue, it should not be suppressed because the witness made a mistake in the Christian name of one of the signers of the bond sued on.</p> <p>3. Practice—Right of plaintiff to dismiss.—A plaintiff may take a nonsuit on the announcement of the finding of the court, and before the case is finally disposed of by entry on the docket.</p> <p>4. Practice—Form of judgment in suit on penal bond.—In an action upon a penal bond, if the court finds that the condition of the bond has been broken, judgment should be rendered in debt for the penalty of the bond, as well as the damages, the judgment in debt to stand as security for future assessment of damages.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Evidence—Impeaching—Hearsay.—After defendant in execution had testified that the ice in question belonged to appellant, witnesses were called to show that on several occasions he had told parties that he was the owner of the ice. Held, that such testimony was not admissible as impeaching testimony, because no sufficient foundation for its introduction had been laid. Held, further, that it was not competent as independent testimony, because such declarations were not made in the presence and hearing of appellant.</p>

<p>1. Writ of certiorari.—The common law writ of certiorari may issue to all inferior tribunals, in cases where they exceed their jurisdiction and in cases where they proceed illegally and there is no appeal or Lother mode of directly reviewing their proceedings.</p> <p>2. Mode of trial on certiorari.—Upon certiorarino trial can be had on any issue of fact, hence the writ does not require a return of the evidence, or of any facts outside the record. The only trial is by inspection of the record. >7</p> <p>3. Quashing writ.—If the superior court finds from an inspection of the record that the inferior tribunal had jurisdiction and had not exceeded it, and had proceeded according to law, the writ should be quashed; but if it finds that the court had not jurisdiction, or had exceeded it, or had not proceeded according to law, it will quash the judgment and proceedings as shown by the return.</p> <p>4. Highways—Removing obstructions.—At the time of the 'proceedings complained of, the county commissioners’ court had exclusive jurisdiction of the subject of laying out roads; all the preliminary steps were regular, and the fact that the court did not assess damages for the land taken from appellant, will not affect their proceedings.</p> <p>5. Laying out highways—Assessment of damages.—In laying out highways, the county commissioners’ court has no power to assess damages; such damages, if not agreed upon, should be assessed by three householders selected by a justice of the peace, upon application of the supervisor.</p> <p>6. County commissioners’ court—Judicial power.—The constitution vests in the county commissioners’ court a general supervision over the public roads in their respective counties, and proceedings to establish or lay out a road, are purely judicial in their character.</p> <p>7. Recovery of penalties for obstructing boads.—Penalties for obstructing a highway can be recovered only by indictment, or by an action before a justice of the peace, and no authority is conferred upon the county commissioners’ court to try a cause for obstructing the highway, and any attempt by such court to try such a question, is without authority and void.</p>

<p>1. Injubv—Rule of damages.—The rule of damages for injuries inflicts! by negligence, not willful or malicious, is loss of time during the cure and expenses incurred in respect of such cure, and the pain and suffering undergone by plaintiff, and any permanent injury, especially when it causes a disability from future exertion and consequent pecuniary loss.</p> <p>2, Damages excessive.—In this case, it does not appear that the plaintiff has sustained injury to the extent of a disability from future employment, and the court is of opinion that, under all the circumstances, the damages are excessive, and the judgment is reversed for that reason.</p>

<p>SiiAstdee—Evidence rebutting justification.—In an action for slander, the defendant pleaded justification, and introduced evidence tending to prove-the truth of the words spoken. Held,, that the plaintiff was entitled to introduce evidence tending to rebut the testimony given in justification.</p>

<p>„ 1. Recognizance—Sureties not exonerated by sickness of principal.—To a set. fa. on a recognizance, the sureties pleaded that the principal was dangerously sick in another State and could not be surrendered without great danger of his life. Held, "insufficient to exonerate the sureties. Nothing but the death of the principal is such an act of God as will discharge the sureties.</p> <p>2. Judgment upon one nihil.—Formerly two nihils were necessary before orders could be taken against a defendant not personally served, but since the act of March 31, 1869, a return of one nihil is sufficient.</p> <p>8. Judgment without default entered of record.—It is error to take a judgment and assess damages against a defendant not served or appearing in the cause, without first entering his default of record.</p>

<p>1. Indictment—Offense dabbed by statute.—An indictment for a misdemeanor, showing on its face that the offense was committed more than eighteen months before the finding of the same, and which does not contain allegations bringing the case within the exceptions under which an indictment may be returned after the expiration of that time, is bad, and should be quashed.</p> <p>2. Indictment fob ubeatee offense than misdemeanob—Statute limitations.—The defendant was convicted of petit larceny, upon an indictment for grand larceny, found more than eighteen months after commission of the crime, and which did not allege that during said time the defendant was out of the State, etc. Held, that the offense was barred; that the pleader could not, by alleging a greater offense, evade the bar of the statute.</p>

<p>Error to the Circuit Court of Edgar county; the Hon. William E. Nelson, Judge, presiding.</p>

<p>1. Demand of payment befobe suit brought.—Where a person receives money to be paid to another immediately, and if not so paid, it becomes the duty of the party receiving it to return it to the one from whom it was received, and a long time has elapsed since it should have been paid or returned, and no report or accounting has been made respecting it, he will be considered as having appropriated it to his own use, and no demand is necessary before bringing suit.</p> <p>2. Statute of limitations—Part payment.—An absolute, unqualified return of a part of the money received, is sufficient to take the case out of the statute of limitations.</p>

<p>1. Railroads—Killing stock—Liability.—Where stock is damaged by a passing train at a place where the railroad company is not bound to fence its track, the liability is the same as if no statute existed upon the subjei t, and the company is not liable unless it is shown, that the injury resulted from a want of ordinary care on the part of the servants of the company.</p> <p>2. Care required op company.—If a person suffers his stock to run loose in a field through which an unfenced railroad track passes, he can only require of such company the exercise of ordinary care and prudence in respect to protection for such stock.</p>

<p>1. Degree—Interlocutory or final—Writ of error—Plea of statute of limitations.—To a writ of error the defendant in error pleaded the statute of limitations. There were two decrees; one upon a master’s report stating the account between the parties, entered more than five years prior to suing out the writ of error, and the other less than five years prior, based upon the master’s report of distribution of the assets of the firm, Held, without considering the question which of the decrees was the final one in the cause, that the plea of the statute being indivisible, and going to the right to a writ of error upon any portion of the record, and the right to a writ upon the last decree not being barred, the plea was insufficient.</p> <p>2. Effect of plea.—The plea being to the whole record, and not as to the first decree, and not being sustained by the evidence, the judgment of reversal must likewise apply to the whole record.</p> <p>3. Dissolution of partnership—Stating accounts.—The court is of opinion there was not a proper stating of the accounts between the partners by the master. In such proceedings the master should render a concise and accurate statement of the account, so that the same may be easily comprehended, and any objection passed upon understandingly.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Logan county; the Hon. A. G. Burr, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon, Owen T. Reeves, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.</p>

<p>1. Pleading.—A plea professing to answer the whole declaration, which in fact answers only a part, is bad on general demurrer.</p> <p>2. Replevin—Suit on bond—Breaches —To a suit on a replevin bond, assigning as breaches a failure to prosecute the suit, failure to make return of the goods, and a failure to pay the costs adjudged, etc., the defendant pleaded in bar of the whole action, that the merits of the cause were not tried on the replevin suit, and that defendant was owner of the goods, etc.</p> <p>Held, bad on general demurrer. It did not attempt to answer the breaches of failure to prosecute and to pay costs.</p>

<p>Appeal from the Circuit Court of Calhoun county; the Hon. A. G. Burr, Judge, presiding.</p>

<p>Action for liability created by statute—Contributory negligence.—Although the statute relating to the use of machinery connected with tumbling-rods, makes a party who shall use such tumbling-rods without being properly boxed or secured, liable to a person injured thereby; yet in such cases the rule of contributory negligence prevails, as in other cases; and if the party injured is guilty of contributory negligence, he can not recover.</p>

<p>Error to the Circuit Court of Schuyler county; the Hon. S. P. Shore, Judge, presiding.</p>

<p>1. Practice—Amending- pleas—Abandonment oe plea.—Where a defendant without joining in issue upon his original plea to the jurisdiction, files an amended plea, and upon a demurrer being sustained, pleads to the merits, he will be held to have abandoned his first plea, and will nob be allowed to introduce evidence upon the trial in support of it.</p> <p>2. Libel—Justification.—A plea seeking to justify a publication charging professional misconduct as an attorney, where the facts alleged do not show that the plaintiff was acting in his professional capacity, is insufficient.</p> <p>3. Libel—Matter of inducement.—The ordinary meaning of language can not be enlarged by innuendo so as to constitute a libel, but the extraneous matter must be set out by sufficient averments in the colloquium or inducement, so that the court can see, when read in the light of the facts so averred, that It is susceptible of the meaning attributed to it in the innuendo.</p> <p>4. Matter of inducement traversable and must be proved.— When it becomes necessary to allege extraneous facts so as to make that appear to be libelous which otherwise would not be so, such aliegations become traversable and are to be proved.</p> <p>5. Immaterial issue.—Where there are no proper averments in a count in the declaration, and in consequence the charge is not libelous, a plea which attempted to justify the charge presents an immaterial issue.</p> <p>6. Malicious intent.—Where the language of the alleged libel is not actionable per se, the malicious intent is not to be drawn alone from the language itself, but from that in connection with the extraneous facts proved which makes it libelous.</p> <p>7. Each count in the declaration independent.—Each count in the declaration must stand upon the proof adduced to support it, and proof of one count can not he made to supply the want of proof of another. So, an instruction which makes the proof of one libel sufficient to authorize the jury to find defendant guilty as to all, is erroneous.</p>

<p>1. Receiver—Suit against.—A receiver appointed by the court is an officer of the court, and that court has power to protect him from being harassed by suits in other jurisdictions, but in this case the suit was not against the receiver, but against the company of which he was appointed receiver.</p> <p>2. ' Suit against railroad in hands of receiver.—Notwithstanding the property and franchises of a railroad company may be in the hands of a receiver appointed by the court, it is discretionary in the court to permit a suit to be brought against the company and prosecuted to final judgment, for the purpose of fixing the rights of the parties.</p> <p>3. Dismissal of suit.—The mere fact that a receiver has been appointed by the Federal court, and the property of the company is in his hands, is no ground for sustaining a motion to dismiss a suit pending in the State court against such company.</p> <p>4. Injury occasioned by agents of receiver.—If it should appear that the injury complained of was caused by the servants or agents of the receiver while operating the road, that fact would, no doubt, be a good defense to the present action; but such facts can not be inquired into on a motion to dismiss for want of jurisdiction.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Common carrier of cXtti.e—Delay in delivery—Overpowered by rioters.-—A common carrier is only required to exercise due care and diligence to guard against delay, and where its servants are overpowered by a, mob and prevented from forwarding its trains, it will not be held responsible for the delay, provided it omits no reasonable effort to secure the property in course of transportation.</p> <p>2. Responsibility of company for act of mob.—For a delay occasioned by a refusal of the company’s servants to do their duty, the company is res-fonsiblc; but for a delay resulting solely from the lawless violence of men not in its employ, Ihe company is not responsible.</p>

<p>1. Former suit—New matter.—To the cross-hills filed by appellants in this case, setting up that appellee was not a bona fide holder of the notes in suit, appellee pleaded a former adjudication. The former suit was a proceeding to set aside certain deeds as having been made in fraud of appellants, to which appellee, as holder of some of the notes described in the deeds, was made a party defendant, and answered, alleging that he was a bona fide holder of the notes. Held, that the capacity in which appellee held the notes was not a material question in the former suit, and the cross-bills in these cases alleging new matter, not in issue in the former suit, it was error to dis. miss them upon a plea of former adjudication.</p> <p>2. Notes held to indemnify holder against payment of mortgage.—Where notes are held by a party to indemnify him against the payment of a certain debt, his lien upon them will be discharged when he is reimbursed for the. moneys he has advanced for that purpose. He is not the absolute owner of the notes, but has only a qualified ownership with the ultimate right of property.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Abstract of record.—The rules of court require a complete abstract or abridgement of the record in cases brought to this court; a mere index is not sufficient. The judgment is affirmed.</p>

<p>Error in instructions—Judgment affirmed.—Where a verdict is shown, by the evidence to be so clearly right that, had it been otherwise, the court should have set it aside, it will not be disturbed merely for the reason that error is found in the instructions.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.</p>

<p>1. Principal and surety—Death oe principal—Note must be made a claim against his estate.—Under the statute of March 4. 1869, when the principal maker of a note dies, the note must be presented as a claim against his estate within two years after grant of administration, or the surety will be discharged.</p> <p>2. Insolvency oe estate will not excuse.—The fact that the estate of the principal is insolvent and nothing can he collected, will not excuse the administrator from a compliance with the statute. It-is a right to which the surety is entitled.</p> <p>3. Construction oe contract—Law in eorcb at time oe its execution.—The statute in force at the time the note was executed, will govern in the construction to be given to the contract, and the rights of the surety under it.</p> <p>4. Subsequent repealing statute.—The provision requiring the note to he presented against the estate of the principal maker within two years, is a right accrued to the surety under the statute of 1869, and is not affected by the repealing statute of 1874.</p> <p>5. New promise by surety.—Where a surety is discharged from liability by reason of a failure to present the note against the estate of the principal maker within two years after administration, a mere naked promise by the surety, without knowledge of such failure, to pay, will not revive such liability.</p> <p>6. Surety not chargeable with notice oe laches oe adminstra" tor.—The surety is not bound to know that the claim had or had not been presented against the estate of his principal for allowance, and if his promise was made in ignorance of that fact, and without a new consideration, he is not hound.</p> <p>. 7. Plea must answer all it proeesses to answer.—A plea purporting to answer the whole declaration, and which answers only a part, is obnox' ions to a demurrer.</p> <p>8. Carrying demurrer back.—Where defendant’s second plea was bad, a demurrer by defendant to plaintiff’s replications should be carried back to the defective plea.</p>

<p>1. Contracts—Construction.—In construing a contract, it is the duty of the court to seek for the intention of the parties, and to do this, it is proper to look at other writings made at the same time of the one in question, between the same parties, in rela'ion to the matter in dispute.</p> <p>2. Statement—Construction oe contract in question.—Appellees gave their note for $200, containing a condition that if a certain railroad-naming it—was built within six months, then the note was to be “ null and void,” but if not built within the time named, then the note was to be paid. There was a contemporaneous agreement with the receiver of the railroad that if the road was completed within the time limited, appellant was to release to the company the rightrof-way across his land, etc. Held, that the payment of the note did not depend upon the release of the right-of-way, but upon the construction of the road within the specified time.</p>

<p>1. Instructions.—An instruction is objectionable if the jury are not directed that their belief must be based on the evidence.</p> <p>2. Instruction must not ignore existence op material pact.— Where there is evidence tending to prove a fact having an important bearing upon the law of the case, even though strongly contradicted, an instruction, is erroneous which ignores the existence of such fact.</p> <p>3. Agency—Commissions.—It does not necessarily follow that because the plaintiffs were agents of appellant and notified it of the letting, and that appellant obtained the. contract through such letting, that therefore the p'aintiffs may recover commissions. The right of recovery depends not alone upon the fact of the agency, but upon the terms of the agency, and the action of the parties in pursuance thereof.</p> <p>4. Agency for contesting principals.—The plaintiffs might act for appellant and also for another company, but, in such case, they must be just to each, and act in perfect good faith with each company. They can not advance the interest of one to the disadvantage of the other.</p>

<p>Appeal from the County Court of Jackson county; the Hon. Geo. W. Andrews, Judge, presiding.</p>

<p>1. Change op venue—Divorce—Petition to reduce alimony.—• The word “ suit ” applies to any proceeding in a court of justice in which the plaintiff pursues in such court the remedy which the law affords him. So a petition, filed after a decree of divorce to reduce the alimony formerly allowed, is a suit within the statute relating to change of venue, and the defendant in such petition is entitled, upon a proper showing, to a change of venue.</p> <p>2. Objection that court can not order removal op records to another court.—-There is no force in the objection that this proceeding being merely an adjunct of the divorce, there will be nothing upon which another court, if the venue is changed, can base its action, as there is no authority to remove the records in the divorce suit. If any such records were needed to be used as evidence, the statute provides for transcripts in cases of change of venue.</p>

<p>1. Parties.—All persons should be made parties to the suit who have any substantial, legal or beneficial interest in the subject-matter of the litigation, and who will be materially affected by the decree to be pronounced.</p> <p>2. Want oe parties—How taken advantage oe.—A want of proper parties to a suit may be taken advantage of at the hearing, or on appeal or error.</p>

<p>1. Reversal op judgment—Effect.—The effect of a judgment of this court, reversing the judgment of the court below, and remanding the cause, ij to set aside the judgment below, and the case is then subject to be tried anew, and upon such trial parties are entitled to all their rights, including that of trial by jury, the same as though the first trial had not occurred.</p> <p>2. Effect of reversal upon pleadings—Demurrer to evidence. —"Where a defendant demurred to the evidence, and judgment was rendered against him, which was afterward reversed by the Appellate Court, upon a re-trial the defendant is entitled to contest the evidence, and take the verdict of a jury upon the issue of fact. The demurrer to the evidence upon the first trial was tendered for that occasion only, and does not preclude the defendant from afterward contesling the issue of fact.</p> <p>3. Demurrer to evidence—Nature of.—A demurrer to evidence should not be regarded as an estoppel in another trial. It is in no proper sense a pleading, which can be withdrawn or amended only by leave of court; it is merely a part of the trial itself and may be wholly ignored and disregarded on another trial.</p>

<p>1. School officers—Power to act.—School officers derive all their authority from the statute, and can exercise no power not granted; they must be governed by the provisions of the statute.</p> <p>2. Change in school districts—Petition.—The petition in this case, asking for a change in the districts, was signed by live persons, but did nob aver that they constituted two-thirds of the legal voters of the territory sought. to be set off, nor that the districts from which they wished to he severed had no bonded debt. In this it was radically defective. Neither did it aver in the language of the statute that they were not properly accommodated with school privileges. Merely saying that they ■“ are without convenience to public schools ” is hardly equivalent to the expression used in the statute.</p> <p>8. Trustees have no discretionary power.—In a proceeding like this under the third clause of section thirty-three, of the statute relating to schools, the trustees must act when a proper petition is presented.</p> <p>4. Statute requiring map and list to be .piled is mandatory. —The statute requiring a map and list of tax-payers resident in the newly arranged district, upon a change of school districts, to be filed in the office of the county clerk, is mandatory, and compliance with its provisions is essential to the validity of any alterations of district boundaries.</p> <p>5. Certiorari.—The common law writ of certiorari lies to review the proceedings of all inferior tribunals, in cases where they exceed their jurisdiction or proceed illegally, and there is no appeal or other mode of directly reviewing their proceedings. It will lie to review the action of school trustees in cases of proceedings under'the statute to change the boundaries of school districts.</p>

<p>1. Evidence—Admissions op agent.—The statements or admissions made by an agent while engaged in the transaction of the business of his principal, are a part of the res gestee and competent evidence; but admissions made by him after the transaction, in casual conversation with various persons in reference to the transaction, are not competent, and do not bind his principal.</p> <p>2. Life Insurance—When contract completed.—A made application for insurance on his life to the agent of appellant. The application was received by the agent. A was examined, and gave his note to the agent for the first payment. Before the note was paid or the application forwarded to the company for its approval, according to its rules, A was killed. Held, that until the application had been approved by the company, there was no contract of insurance; the minds of the contracting parties did not meet.</p> <p>3. Authority op agent.—The agent had no authority beyond solicitng applications, and could not bind the company by any contract which he might make; and even if he assumed to have authority to make a valid contract of insurance, he could not bind the company unless he had been held out as a general agent, and the circumstances were such as to warrant the deceased in supposing he had the powers so assumed.</p> <p>4. Application por insurance.—An application for insurance is not a contract, but a mere offer which may be accepted or rejected.</p>

<p>Appeal from the Circuit Court of Randolph county; the Hon. Wm. H. Snyder, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Johnson county; the Hon. C. H. Damron, Judge, presiding.</p>

<p>1. Specifications or bills of particulars in damage cases.—While the practice of requiring the plaintiff, in actions for damages occasioned by negligence, to file a specification or bill of particulars of his claim, stating how, when and by what means the injury occurred, might aid in preparing a defense, yet it has not been adopted in this State, and might work great hardship in many cases. If adopted, the sufficiency of such bill of particulars would have to be left largely to the discretion of the trial court, and would not be the subject of review in an appellate court."</p> <p>2. Declaration—Allegation of two causes of action.—The date given in a count is noli material, and a plaintiff may offer every proof in his power tending to support a cause of action, but he can not recover for more than is alleged. If he offers evidence clearly proving more causes than alleged, the court may require him to elect upon which he will rely, or by instruction advise the jury as to tlieir duty in the premises.</p> <p>S. Power of trial court to control proceedings.—The trial court may reject testimony that manifestly has no tendency to prove any issue made, or it may limit the testimony to be heard upon a given point, and in a general way regulate the manner of proceeding so as to promote the proper investigation of the matter in issue, and, unless it transcends'its powers or abuses its discretion in this respect, its action is not assignable as error.</p> <p>4. Railroads—Sparks raon- engines.—In an action for damages occasioned by fire escaping from an engine, an instruction which fails to include the question whether the engine was supplied with proper appliances for arresting sparks, is erroneous, where there is testimony tending to prove that fact.</p>

<p>1. Official bond—Surety.—The obligors on the bond of a master in chancery can not escape their liability for a breach of such bond arising from the failure of the principal to pay over money collected by virtue of his office, on the plea that it is not such a bond as the statute requires.</p> <p>2. Common law obligation.—By the execution of the bond, the principal, under color of legal authority, was suffered to retain the money, and became entitled to compensation for his services, which would be a sufficient consideration to support the undertaking, and the bond was good as a common law obligation. Whatever is enough to support the promise of the principal will sustain that of the surety.</p> <p>.8. Bond for preceding term of office—Suit upon both.—An action could not be maintained for a failure of the master to pay over money held by him by virtue of his office, upon the bonds given by him for the present and preceding terms of his office, unless the parties to both were the same persons.</p> <p>4. Action upon the bond given for the term in which he was in default.—The default in payment of the money occurring during the last term of office of the master, resort may be had to the bond given for that term.</p> <p>5. To whom money should be paid.—The money remaining in the hands of the fnaster after his term of office had expired, the court might order it paid to his successor in office or to the beneficiary. It was subject to the order of the court, and it is immaterial to the sureties whether he is required to pay to the plaintiff direct or to his successor in office.</p> <p>6. Order to pay over money.—The first order of court directed the master to retain the money until the further order of court, and it may be doubted whether it could be paid over without an order for that purpose. This order was a public record, and the sureties were bound to take notice of it, and will be presumed to have entered into the obligation in view of it.</p>

<p>Suit by assignee in bankruptcy—Jurisdiction ok state court.—A common law action for the recovery of debts due the bankrupt may be prosecuted by an assignee in bankruptcy in the State courts.</p>

<p>1. Setting aside'default.—A motion to set aside a default is addressed to the sound discretion of the trial court, and in this case the court is of opinion there was not such an abuse of such discretion as would justify a reversal on that ground.</p> <p>2. Assessment of damages on default—Right of defendant to introduce testimony.—A default admits every material allegation in the declaration, but it does not admit the amount of damages; and a defendant after a default, on an inquest of damages may introduce evidence to reduce the amount of damages, though he may not defeat the cause of action.</p>

<p>Receipt as evidence.—In a legal point of view a rec ipt is of no higher order or character of testimony than ordinary parol evidence, and is always subject to explanation. There is no presumption of law that a receipt properly and fully expresses the understanding of the parties, and it is error to so instruct the jury. The question of how much weight should be attached to a receipt as evidence should be left entirely with the jury.</p>

<p>1.. Enforcement of ancestor’s debts against heirs—Statute op frauds—Cumulative remedies.—The remedies against heirs and devisees for debts of their ancestor, furnished by the statute of frauds, are cumulative in them character, and furnish additional means to those at common law for the collection of such debts.</p> <p>2. Purpose of statute.—The purpose of the statute was not to change the common law remedy then existing for specialty creditors, where the ancestor had expressly bound the heir, hut to give additional remedies, not only to them but to all creditors of the deceased.</p> <p>3. Meaning of “heirs ” in covenant of warranty.—In a covenant of warranty binding the covenantor and his heirs, the latter word comprehends the heirs of heirs ad infinitum. So, in an action upon such covenant, the grandchild of the covenantor was properly made a party.</p> <p>4. Action upon covenant—Averment of assets.—In such an action it is not necessary to aver that the heir had assets by descent, but it devolves upon him to plead riens per discent.</p> <p>5. Guardian of minor heir not a party defendant.—In an action for breach of warranty of title against the heirs of the grantor, the guardian of a minor heir is not a proper party defendant, and it is error to render judgment against him jointly with the other defendants.</p> <p>6. Service must be made on infant defendant.—When suit has been brought against an infant he should be duly served with process, and the court should, before plea, appoint a guardian ad litem.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Settlement—Mistake of fact.—A settlement is not a bar to an action if it was made under a mistake of facts. So, where a city settled with a collector of taxes as to the accounts between them, and it afterwards appeared that a large sum had been collected in excess of the sum accounted for by the collector, such settlement is no bar to a suit for the balance.</p> <p>2. Levy in excess of amount called for not invalid.—A levy and collection of more money than is called for by the ordinance of the city council, will not make the levy invalid as to the excess, and presents no ground of defense to a collector of taxes when sued upon his official bond for a failure to pay over taxes collected by him.</p> <p>3. Certifying amount required to be raised.—The statute requiring the common council to certify to the county clerk on or before the second Tuesday in August, the amount necessary to he raised by taxation, is mandatory, and a certificate made after that time would be nugatory. So, where the common council certified in proper time an amount that would he required to be raised by taxation, and after the time had elapsed, by another ordinance modified the first amount and certified up the latter amount, the last action of the council should be disregarded in estimating the amount to be raised.</p> <p>4. Irregularities in levy—Not a defense to suit on collector's bond.—Even if there were irregularities in the levy of the tax, the collector can not take advantage of it when sued for money which he has collected and failed to pay over. Such question might be raised in an action between a tax-payer and the city and collector to restrain the levy of the tax, but it can not be availed of as a defense to this action.</p> <p>5. Extending tax—Duty op county cleric.—By section 127 of the revenue law, the county clerk is required to estimate and determine the rate per cent, upon the valuation of property within a corporate body, that will produce not less than the net amount certified, and in doing so, it will always happen that more than is called for in the amount certified must be levied in order to cover delinquencies, abatements, etc.; and though the net amount actually raised may exceed the net sum required, the levy is not for that reason, invalid</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.</p>

<p>Error to the Circuit Court of Randolph county; the Hon. Wm. H. Snyder, Judge, presiding.</p>

<p>Error to the County Court of Hardin county; the Hon. J. F. Taylor, Judge, presiding.</p>

<p>Objections not preserved in bill on exceptions.—The point raised by appellant upon the demurrer to the evidence, can not be considered, as the proceedings respecting it have not been preserved in a bill of exceptions, and the judgment will therefore he affirmed.</p>

<p>Jurisdiction—Freehold—Forcible detainer.—Ordinarily the question of title is not involved in a case of forcible detainer, but in this case, which was forcible detainer under the statute by a purchaser at a sheriff "s sale, against a defendant in possession who claimed ownership in fee by certain conveyances, the rights of the parties can not be determined without deciding which of them is the owner in fee, and when such is the case this court can not take jurisdiction of the appeal.</p>

<p>Appeal from the City Court of East St. Louis, the Hon. Chas. F. Ware, Judge, presiding.</p>

<p>Executors—Attorney’s fees.—For services rendered by an attorney to an executor or administrator in the settlement of an estate, no claim arises in favor of the attorney against the estate, but the executor or administrator is personally liable therefor.</p>

Elliott Anthony, of the Superior Court, sitting as Circuit Judge, presiding. This was trespass for taking and carrying away a sewing-machine brought by appellee, McGrath, against appellant, Silverman, and one Wurtzburger, the latter not being served with process. On appeal to the circuit court, the case was there tried before a jury.

R. S. Williamson, Judge, presiding. This was an action of assumpsit upon a guaranty by Hurd and others, of a promissory note of the Highland Park Building Co. for $1,802, dated April 1, 1872, payable to appellee, Sarah Marple. Hurd filed special pleas, setting up several extensions of the time of payment, given by the payee to the maker of the note, whereby it was claimed his liability as guarantor was discharged.

R. S. Williamson, Judge, presiding. This action was brought in the court below, by Julia M. Bliss, against Osborn R. Keith and others, comprising the firm of Keith Brothers, to recover damages arising from an alleged loss of profits sustained by the plaintiff by reason of the defendant’s failing and refusing to furnish plaintiff the full quantity of work and materials required to be furnished by the defendants under the following contract: “This agreement, made and entered…

Elliott Anthony, of the Superior Court, sitting as Circuit Judge, presiding. This was an action of assumpsit for money had and received, brought by James R. Paul, against the Ætna Life Insurance Company, to recover back the premiums paid by the plaintiff to the defendant, on certain policies of insurance on the life of tiie plaintiff.

Mason B. Loomis, Judge, presiding. This action was trespass brought by appellee, Lamb, against appellant, Ennis. The declaration contains five counts. First count, that defendant, January 13, 1879, with force and arms broke, and entered plaintiff’s dwelling house, known as No. 171 South Morgan street, in the city of Chicago, made great noise, etc., broke down doors, etc., and took and carried away divers goods and chattels, the property of plaintiff.

Joseph E. Gary, Judge presiding. This was a suit for forcible detainer, brought by appellee against appellant, before a justice of the peace, and taken by appeal to the Superior Court of Cook county, where a trial was had resulting in a verdict and judgment for the plaintiff.

<p>Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

Sidney Smith, Judge, presiding. Harry Cook, the plaintiff’s intestate, a boy between three and four years of age, was injured by falling through' a hole in the sidewalk, on Loomis street, in the city of Chicago, on or about the 27th day of July, 1878, and some three weeks thereafter died, as is claimed, in consequence of said injury The evidence as to the condition of the sidewalk at and preceding the date of the injury, is conflicting; the plaintiff’s witnesses testifying,…

John G. Rogers, Judge, presiding. This was a case against the city of Chicago, to recover for personal injuries received by the plaintiff, by reason of a defective sidewalk. The evidence tended to show the following facts: The plaintiff was passing north on the sidewalk, on the east side of ¡North State street, towards Indiana street, which runs east and west, intersecting State.

John G. Rogers, Judge, presiding. This was an action on the case, brought by John Rourke, administrator of the estate of Bernard Rourke, deceased, against the Union Stock Yards and Transit Company of Chicago, to recover damages for the death of the plaintiff’s intestate, caused, as is alleged, by the negligence of the defendant.

Kirk Hawes of the Superior Court sitting as Circuit Judge, presiding.

Sidney Smith, Judge, presiding. This was an action of assumpsit, brought by John D. Uchtmann, administrator of the estate of Bernhard William Uchtmann, deceased, against Frederick Edler, to recover for certain indebtedness claimed to have been due, and owing from the defendant to the plaintiff’s intestate in his life-time.

Sidney Smith, Judge, presiding. Appellants commenced a suit in attachment against appellee in the Superior Court of Cook county, Oct. 19, 1880, for an indebtedness of $10,581.

Sidney Smith, Judge, presiding. This was an action of 'trespass brought by Charles W. Osborn, Edward Smackels and Oscar C. Squyers, for the use of Edward Smackels, against Charles Munson, charging him with wrongfully breaking and entering certain premises of the plaintiff.

<p>I. Arbitration—Submission—Generad doctrine.—In all cases arising on awards, it is a general rule that unless the arbitrator makes his award of all matters submitted to him, the award is void. This is true, however, on’y where the submission is of several specific things.</p> <p>2. General submission.—Where the submission is of all matters in dispute, without specifying them, the arbitrator need only make his award as to the things of which he had notice.</p> <p>3. Specific submission—Building contract—Architect’s decision. —A clause in a building contract providing that if any differences shall arise between the parties in relation to the contract, the work to be performed under it, etc., the decision of the architect shall be final, is a submission of specific questions, and the architect's decision is not binding upon the parties as to matters of dealing entirely outside of the contract in question, as a claim for money lent or goods sold and delivered.</p>

Elliott Anthony, of the Superior Court, sitting as Circuit Judge, presiding. This was debt on an appeal bond. The International Bank recovered a judgment in forcible detainer before a justice of the peace, against Catharine Walsh, who took an appeal to the Superior Court of Cook county, giving bond with surety in the penal sum of $500, conditioned as required by the statute.

<p>1. Negligence—Damages—Cost of being cured.—In an action against the city of Chicago for damages arising from the negligence of the city, the plaintiff was allowed to recover, as an element of damages, money paid for medical services, etc. Held, That in order to recover for medical attendance, etc., the plaintiff must show the amount of money actually paid, or that she had become legally liable to pay a certain sum therefor.</p> <p>2. Physician’s fees.—The plaintiff could not be made legally liable to pay for services rendered by an unlicensed physician, and hence could not recover in this case for money paid or agreed to be paid such physician.</p> <p>3. Unlicensed Physician.—A physician who had not been in practice in this State for ten years before the passage of the act relating to physicians, requiring an examination before the State board of health, or a diploma from some medical college, can not recover for fees as physician or surgeon.</p>

<p>Upon an appeal from an order of court directing restitution of premises pursuant to an order of sale and failure to redeem, where the record shows no bill of complaint, decree, master’s report or petition, as the basis of such order, the court can not consider questions of law arising upon the order.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.</p>

Sidney Smith, Judge, presiding. This cause was before this court at the October term, 1879, under the title of Fame Insurance Company v. Mann et ah, at which time a judgment against the insurance company was reversed for the reasons stated in the opinion then filed. 4 Brad-well, 485.

<p>1. Dismissal of appeal—Costs.—Where the plaintiff in the county coart brought his appeal to the superior court, it was error for the latter court, upon the call of the docket, to dismiss the appeal at the costs of the defendant below. Costs should have been awarded against the plaintiff for want of prosecution.</p> <p>2. Costs ag-atnst administrator.—It is error to render a judgment for costs against an administrator in his personal character.</p>

<p>Error to the Superior Court of Cook county.</p>

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

<p>1. Dismissal of appeal—Transcript must be filed.—The circuit court has no jurisdiction to dismiss an appeal without the consent of the appellant, unless the transcript from the justice ha's been on file ten days before the term.</p> <p>2. Order on appellant to file transcript.—The court can not acquire jurisdiction to dismiss an appeal, by merely entering an order on appellant to file a transcript within a certain time, and upon failure to comply with" the order, dismiss the appeal.</p> <p>3. Order dismissing appeal becomes part of the record.—An order dismissing an appeal is a final order, and becomes a part of the record proper, and may be assigned for error without being preserved by a bill of exceptions. e</p>

Elliott Anthony, of the Superior Court, sitting as Circuit Judge, presiding. This was assumpsit by appellees against appellants, to recover damages for the breach of an alleged contract for the sale on the Chicago Board of Trade, of a quantity of barley.

Elliott Arthony, of the Superior Court, sitting as Circuit Judge, presiding. This was an action for libel, brought by appellant against appellee, based on the publication of an article in the Chicago Times newspaper, and which was subsequently republished in the San Francisco Chronicle.

John G. Rogers, Judge, presiding. This suit was commenced by W. J. McGreavy, against Michael W. Bonfield, before a justice of the peace of Cook county, where judgment was rendered July 9, 1880, in favor of the plaintiff, for $49.50 and costs.

Joseph E. Gary, Judge, presiding. This was a replevin for a stock of goods. The facts were substantially as follows : Prior to January, 1877, Halvor Halvorson, husband of plaintiff’s intestate, was engaged in business as a merchant tailor. On or about January 18th of that year one of his creditors,-Standish, caused an execution to be levied oh his stock in trade, and sold the same at sheriff’s sale.

R. S. Williamson, Judge, presiding. This was an action on the case brought by John Lindsay, against the Union Brass Manufacturing Company, to recover damages for a personal injury received by the plaintiff, on the 19th day of June, 1881, from falling into an area appurtenant to the basement of a certain building on the northeast corner of Market and Ohio streets, in the city of Chicago, owned by the defendant.

<p>1. Husband and wife—Liability for support of wife when living apart from him.—A husband is not liable, even for necessaries furnished his wife while residing apart from him, without his consent, and without good cause, yet, if the separation is caused by improper treatment on his part, such as would justify her in leaving him, he is liable for her necessary support, and to that extent she may avail herself of her common law remedy of obtaining support on his credit.</p> <p>2. Suit for support furnished the wife—Evidence of cruel treatment.—In an action against the husband, by one who has furnished necessary support to his wife while living apart from him, it is competent for the plaintiff in support of her claim, to show by proper evidence, the manner in which the defendant had treated his wife prior to the separation, leaving it for the jury to say whether his conduct was such as to justify the wife in refusing- to live with him.</p>

Joseph E. Gary, Judge, presiding. This was an action of covenant to recover- rent upon a lease alleged to have been made by appellees to appellants, for the premises known as Nos. 130 and 132 Wabash avenue, for the term of two years from March 1, 1878. The declaration was in the usual form, and alleged that there was rent due and in arrear in the sum of $2,583.32, non-payment of which was assigned as the breach of the covenant, upon which suit was brought.

<p>1. Instruction as to preponderance op evidence.—An instruction that the preponderance of testimony “ does necessarily consist in the number of witnesses, etc.,” instead of “does not necessarily consist, etc.,” is erroneous: and although the omission may have been accidental, yet it can not be said that the jury did not understand the instruction just as it reads, and resolve the conflict of evidence upon that basis.</p> <p>2. Instruction assuming pacts.—An instruction, that if the jury believe the injury to plaintiff occurred “ by reason of the neglect of the employes of the defendant to obey the signal of the semaphore, etc.,” is erroneous, because, assuming as a fact the neglect of the defendant’s employes to obey such signal. It is error in an instruction to assume any fact about which there is a dispute.</p> <p>3. Evidence op pecuniary condition op plaintiff .—In actions to recover damages for injuries received by the negligence of another, it is error to receive evidence of the poverty or pecuniary condition of the plaintiff.</p>

R. S. Williamson, Judge, presiding. This was a case brought by appellee against appellants, to recover for injuries resulting from the alleged negligence of appellants in respect to the plumbing, in a store on West Madison street, in the city of Chicago, occupied by appellee as tenant of appellants. The facts sufficiently appear in the opinion of the court. There was a jury trial, resulting in a verdict for the plaintiff for $400, for which amount she had judgment.

<p>1. Broker—Commissions on sale of land.—Before a broker is entitled to commissions he must furnish a purchaser who is ready, willing, and able to complete the purchase on the terms proposed. If the vendor accepts the purchaser, and enters into a contract with him, the commissions are earned; but if he rejects him, the broker is bound to show, not only that the proposed purchaser was willing to accept the offer, but that he was ready and able on his part to perform all the terms of the purchase.</p> <p>2. Jurisdiction of county court.—The summons, declaration and affidavit of plaintiff was for more than $1,000, and it was objected that the county court had no jurisdiction. This court, while expressing doubt as to the jurisdiction, does not pass upon that objection.</p>

R. S. Williamson, Judge, presiding. This was an action on the case brought by appellee, John Berg, against the Chicago and Western Indiana Railroad Company, to recover for damages to his premises fronting on Wallace street, in the town of Lake,' occasioned by the construction and operating of appellant’s railroad in said street. The town was an incorporate municipality, and the railroad was constructed in the street by its permission and consent.

Joseph E. Gary, Judge, presiding. This was an action on the case, brought by Thomas Moran against Edward A. Shedd and Charles B. Shedd, to recover damages for the death of plaintiff’s minor son, John I. Moran, caused, as is alleged, by the negligence of the defendants. It appears that said John I. Moran was killed at Sheffield, in the State of Indiana, on the 17th day of March, 1881.

<p>1. Landlord and tenant—Tenancy by the month—Notice by tenant.—When the tenancy is from month to month, the tenant may terminate it by a month’s notice, and such notice may be verbal, as at common law.</p> <p>2. Commencement op term.—When the letting of the premises is by verbal agreement and no time is agreed upon when the tenancy shall commence, the time when the tenant entered-into possession will be regarded as the beginning of the tenancy.</p>

Kirk Hawes, Judge, presiding. This was an action on the case for deceit, brought by appellee against appellant.

This was an action of forcible entry and detainer brought by Emily H. Pratt against Elizabeth A. Stone, Samuel A. Downer and Augustus A. Parker, in a justice’s court, to recover possession of a certain dwelling-house and premises situate in the city of Chicago, from which the plaintiff claimed, that she had been forcibly evicted by the defendants. The case having been taken by appeal to the circuit court, it was then tried before a jury.

Mason B. Loomis, Judge, presiding. Assumpsit for the price of certain brushes alleged to have been sold by appellees to appellants. Tascott and Sons, doing business in Chicago, gave appellees, Rosenthal & Bro., brush manufacturers in Hew York City, an order in writing as follows: Office of J. B. Tascott & Sons, Manufacturers, etc. Chicago, Nov. 20, 1880.

<p>1. Schools—Contract to teach—Certificate required.—A board of school directors has no authority to employ a person as teacher who has not at the time the contract is made, a certificate of qualification as a teacher, as required by law.</p> <p>2. Contract must be made at official meeting of board.—Under the present school law, directors have no power to make a contract employing a teacher except at a regular or special meeting of the board of directors, held as required by law.</p>

<p>Railroads in streets—Damages.—The questions involved in this ease are similar to those considered in Chicago and Western Indiana Railroad Company v. Berg, ante 607, and for reasons there given the judgment is reversed.</p>

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

<p>1. Verdict.—The verdict entered of record in the court is the only proper verdict.</p> <p>2. Appellate court can not go beyond the record.—An appellate court can ascertain the finding of the jury from the recorded verdict, and from that alone.</p> <p>3. Verdict against one dependant.—Where there are two defendants and the verdict as recorded is against “ the defendant,” without specifying wliich one is meant, it is insufficient to support a judgment against either.</p>

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