Volume 12 — Illinois Appellate Court Reports

<p>1. Connecting lines — Liability of common carrier beyond its line — Limitation in receipt. — Where goods are received by a common carrier, marked for transportation to a place beyond its line, and the hill of lading limited the common law liability of the carrier to safe carriage over its own line. Held, that the inhibition contained in Chap. 114, § 82, R. S. 1874, does not apply to a case where the carrier is under no obligation at common law to undertake to carry goods beyond its own line.</p> <p>2. Contract necessary — Prima facie evidence of such contract— How rebutted. — No common law obligation attaches to carry safely beyond its own line until there is a contract to carry beyond its line. The mere re-reception by the carrier, of goods, marked for transportation to a place beyond its line, may baprima facie evidence of such a contract but the insertion in the bill of lading of a limitation of the contract of carriage to its own line, brought to the notice of and accepted by the shipper, will rebut such evidence.</p>

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

<p>Evidence insufficient to sustain veedtct. — Prom the evidence in this case the court is of the opinion that Colby was a mere spectator and did not participate in any way in either the taking or selling of the goods in question, and that the evidence against him was clearly insufficient to sustain the verdict of the jury.</p>

<p>Appeal from the Circuit Court of LaSalle county; the Hon. G-eoege W. Stipp, Judge, presiding.</p>

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

<p>Error to the County Court of Peoria county; the Hon. John C. Tates, Judge, presiding.</p>

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

ClarkW. Upton, Judge, presiding. On appeals from the county court to the circuit court from orders of the county court approving the inventory, appraisement and widow’s relinquishment and selection in the estate of John Lovell, deceased, the circuit court consolidated the three appeals and entered a j/ro forma judgment reversing the finding and judgment of the county court and remanding the cause to that court for a new trial.

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

<p>1. Practice — Assigning value. — Where the value of property injured is alleged by way of damages, it is not necessary to specially aver all the qualities that constituted such value.</p> <p>2. Tran-portation op live stock — Valuable animals — Degree op care. — If a carrier has any special rules or custom, binding upon its servants, by which their care of live stock is to be proportioned to its value, it is the duty of the carrier to inquire oí the shipper if the live stock, about to be shipped, possesses any special value By the law of the common carrier, the same degree of care is required to prevent destruction of animal life, whether of little or great value</p> <p>3. A CUSTOM, LIMITING LIABILITY OP CARRIER, AGAINST PUBLIC POLICY. —A custom that a carrier shall not be liable for injury to, or loss, or destruction of live stock beyond the value of $100, ps against public policy, as a castom which will excuse a carrier from acts of negligence, is invalid.</p> <p>4. Notice op limitation — Not binding unless assented to by shipper. — Notice to the shipper of the adoption of a rule, that the carrier will not transport live stock unless the shipper signs a special contract, limiting the liability of the carrier, for loss or injury thereto, to §100, does not create a contract between the parties by which such rules become binding upon the shipper. The assent of the shipper must appear before he can be bound.</p> <p>5. Liability of carrier for impaired condition of property upon arrival at destination. — The liability of a common carrier for the impaired condition of property upon arrival at its destination, depends upon the nature of the commodity carried, and the cause of the deterioration in vaiue or of the injury received, during its transit. If the loss or injury was the direct result of natural decay or any inherent infirmity in the article itself, the carrier is not liable. In the transportation of live stock, the carrier, in the absence of negligence, is not responsible for such injuries as occur, in consequence of the vitality of the freight.</p> <p>6. Instructions should be clear and accurate where evidence is conflicting.' — Instructions should be clear, accurate and as harmonious as possible. Where an erroneous charge is given, but the evidence is so largely in favor of the prevailing party that the court can see the jury were not misled by the error, the judgment will be affirmed ; but where the evidence upon the material points in the case is very conflicting and quite evenly balanced and the erroneous instructions may have had the effect of misleading the jury, the court will reverse the judgment.</p> <p>7. Misleading instruction. — Where the obligation to deliver a mare in good condition, if so received by the carrier, is made by the first branch of an instruction, as absolute as the duty to transport safely and to make delivery to the consignee, and there is no question but what the mare safely arrived, so far as the act of transportation was concerned, and was promptly delivered to appellee, the jury will be very likely to understand that the neglect of duty mentioned in the second branch of the instruction, referred to the failure of the carrier to deliver in as good condition as received, and that such failure was conclusive evidence of negligence in the carrier by which such condition was caused.</p>

J. W. Ranstead,.Judge, presiding. The appellants, executors of the estate of Morris, applied to the County Court of Kane county for leave to sell real estate to pay debts proved against the estate, 'including $1,286 allowed to the widow, the appellant Rebecca, as her award, she having elected to take money instead of the specific articles named in the statute.

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

<p>Appeal from the Circuit Court of De Kalb county; the Hon. Charles Kellum, Judge, presiding.</p>

<p>1. Motive in bringing a suit — When to be considered. — The motive of appellant in bringing this action, can have no effect upon his right of recovery, in so far as he has sustained actual damages by the wrongful act of appellee. It should only be considered by the jury as to punitory damages.</p> <p>2. Issue of eight of way — Erroneous judgment should be reversed ALTHOUGH ONLY NOMINAL DAMAGES PROVED. — In a Case like this, an appellate court will reverse an erroneous judgment, even although no actual damage was proved, since appellee, by pleading a right of way over appellants land, tendered an issue of a permanent right in himself to continue to travel thereon, and the judgment entered would be conclusive of the right in issue and binding upon parties and privies. If appellee did the act charged and failed to sustain his plea, justifying his act, the law implies damage and the maxim “ de minimis non curat lex’’ in such cases is not acted upon by an appellate court.</p>

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

<p>1. Isstbuctions. — Where there is strong testimony in "support of the defense of accord and satisfaction, it is error for the court in a series of instructions, given for plaintiff, to ignore such defense and the error is not cured by a proper instruction in relation to the alleged accord and satisfaction given for defendant.</p> <p>2. Instiujctioits. — Where there is evidence tending to show that defendant had endeavored but was unable to procure before suit brought- the article agreed upon by the part.es as an equivalent for the one lost, and defendant had not- repudiated the promise to procure it, it is error to instruct the jury'that “if defendant neglected to buy it for the plaintiff, plaintiff would be entitled to recover.”</p> <p>3. Warehouseman — Where storage is the main thing in contemplation of parties. — Where storage is the main thing in the contemplation of the parties and the removal of the goods to the warehouse and their return to the bailor in the same city is merely a necessary incident to the storage, the liability is that of a warehouseman and not of a common carrier.</p>

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

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

<p>1. Question op acceptance op proposition — Instruction.—A proposition was made by a failing debtor to his creditors to accept in full satisfaction of their respective demands, sixty per cent, of them claims in promissory notes of a responsible third party. All of the creditors, except Field & Leiter, accepted. Farrington denies that he accepted but from the evidence in the case, the court is of opinion that he accepted the proposition, and in view of the fact that his letters tended to contradict him and corroborate R., it was error for the court to instruct the jury that as R. swore positively that F. accepted, and F. as positively denied such acceptance, and as neither of them were corroborated in their evidence, the agreement could not be regarded as proven by a preponderance of evidence.</p> <p>2. Agreement op creditors to accept less than amount due.— A debt can not be satisfied by the payment of a less sum of money than that due, and the promise to discharge upon such payment is void for want of consideration. This rule, however, does not apply to an agreement mutual in its obligations, between several creditors with a failing debtor, as the promise of one creditor is consideration for the promise of another.</p> <p>3. Practice — Compliance with terms of agreement, good detense to action tor residue. — Compliance with the terms of such an agreement on the part of the debtor is a good defense to an action by the creditor for the residue of his original demand. The agreement displaces the original contract and may be proved as well under the general issue as under a special plea setting up the facts.</p> <p>4. An agreement to accept less by a portion ot creditors is valid. — An agreement by a portion of the creditors to accept in satisfaction less than amount due, not conditional upon the concurrence of others, is as valid against them as if made by all the creditors, and a tender by the debtor, according to its terms, being equivalent to performance, is sufficient whether such tender he accepted or not. The creditor who by his own •fault has prevented its actual performance will not he heard to say that the agreement is still executory.</p> <p>5. Fraud upon third party. — The agreement in this case, being to take the notes of a third party, its validity, if mutual between the creditors, rests upon the additional ground that its repudiation by plaintiff, as attempted, would operate as a fraud upon such third party by diminishing his means of re-imbursement.</p> <p>6. It does not change the rule that there was no convocation ot creditors, etc. — The fact that there was no convocation of creditors, hut that they resided at different points, and correspondence was had with each separately, does not change the rule. The agreement, on the part of appellees, if made, was absolute and independent of other creditors, and such an agreement, by a single creditor to accept in satisfaction the notes of a third party, though for less than the amount of his claim, will bind him.</p>

<p>Evidence — Master and servant. — Appellee brought suit on a quantum meruit for work and labor. Appellant set up an express contract for a specified term and the quitting of appellee before its expiration. Held, that it was error for the court to permit appellee to set up a slight sickness which had not continued up to the time he left, as a justifying cause for leaving appellant’s employ, since appellee had not been required to work when he was ill, and had voluntarily resumed work on the next day. It was also error for the court to refuse to allow appellant to offer testimony, tending to impeach appellee’s general reputation for truth.</p>

<p>Error to the Circuit Court of Kane county; the Hon.'Hiram H. Cody, Judge, presiding.</p>

<p>1. Reservation in deed. — H., the grantor, sold to appellee lot B, retaining for himself the adjoining lots. The deed contained the following reservation, “ excepting and reserving the right of way for a wagon road ten feet wide along the south line of said piece of land conveyed, so long as the grantor may wish to use the same for the purposes of such wagon road.” Subsequently H. de'eded by warranty deed to appellant lot F, adjoining lot B, and H. retained lot 5 east of lotF. H., in his deed to appellant, granted a right of way over this strip. It was necessary to the enjoyment of appellant’s lot to use the strip reserved, to cross over with his teams and wagons. Appe'lee fenced up the alley and forbid appellant to pass through. The question involved in the case, was whether the reservation in the" deed was in gross and personal to H., the grantor, or appurtenant to the land and incident to the estate.</p> <p>2. Rule in construing a reservation of a right of way. — In construing this class of grants, reservations or exceptions standing on the same footing, the rule is that a way is never presumed to be in gross when it can fairly be construed to be appurtenant to the land.</p> <p>B. Effect of omission of words heirs, assigns or grantees. — It is not necessary that the words heirs, assigns or grantees should be used in the reservation in addition to that of the grantor, to determine the int-ntion to make the reservation appurtenant, for those words are not necessary to use in a deed of conveyance.</p> <p>4. Reserving clause and surrounding circumstances consid bred. —The clause “so long as the grantor may wish to use the same for the purpose of such wagon road” does not make the reservation in gross. The effect in this case would be the same with or without that clause. Fairly considering the reserving clause and the surrounding circumstances, the court is of opinion that it was the intention of the parties that the right of way should be appurtenant to the estate.</p>

<p>Error to the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.</p>

<p>1. Duty of city in construction of sidewalks. — A city is not required. to have its sidewalks so constructed as to secure immunity from injury in using them, nor is it bound to employ the utmost care and exertion to that end. It is only required to see that its sidewalks are reasonably safe for persons 'exercising ordinary care and caution in using them.</p> <p>2. Knowledge of defect — Negligence.—If a sidewalk is of such a character that extra care must be taken to pass over it safely, a party, who with full knowledge of its condition, does not take that extra care, can not recover for an injury caused in consequence. The stones of a sidewalk down a decline, the grade of which the city authorities could not lessen without damaging other important streets, had been worn smooth by constant travel, and a railing had been erected to enable parties to secure them- . selves from falling. Held, that a party, who, knowing the condition of the walk, ventured upon it and did not take the necessary precautions to prevent a fall, can not recover.</p> <p>8. Practice — Admission of evidence of similar accidents. — It is the policy of the law to exclude evidence of similar accidents, where the prudence of every person who had met with a like accident would be involved, but where the evidence of similar accidents is given simply to illustrate a physical fact before or after the occurrence being investigated and the conditions are the same, such evidence is admissible.</p> <p>4. Evidence. — To allow a witness to give his opinion as to the comparative safety between a wooden walk, had there been one at the place of accident, and the stone walk in question, was error.</p>

<p>/ I. Evidence — Hypothetical questions. — It is not competent for a witness, who is not an expert, to answer a hypothetical question, based upon facts not within his knowledge, Such a witness may testify to facts within his personal knowledge, going to show the sanity or insanity of a person, and may give his opinion as to a person’s sanity or capacity to transact business, but he can not give a professional opinion, or an opinion based on supposed cases, leaving the cases to be shown by other evidence. It does not change the rule that such hypothetical questions are asked on cross-examination.</p> <p>2. Instructions — Undue influence. — An instruction “ That * * * the influence to control testator so as to render his making a will of no effect, must be such as to mislead him to the extent of making a will contrary to his own wishes ” was altered by the court, striking out the words “ own wishes ” and inserting “ duty/” Held, that the modification was not error.</p> <p>3. Instructions — Mental capacity. — An instruction that “if the testator had mental capacity enough to understand the act he was performing,” is erroneous. The act is simply the making the will or signing it. If the words, “the business he was engaged in” had been used, it would have been correct.</p> <p>4. Judgment not evidence of matter which came collaterally in question. — The judgment of a court of concurrent or exclusive jurisdiction is not evidence of any matter which came collaterally in question, although within its jurisdiction, nor is the judgment evidence of any matter to be inferred by argument from it.</p> <p>5. Record of court showing appo.ntment of conservator not competent to prove inability to make will. — The issues formed in a county court, in a proceeding to have a conservator appointed, do not necessarily involve the same questions, necessary to be determined in settling the mental capacity to make a will. To make a valid will only requires the testator to be of sound mind the moment he is composing and executing the will, while a conservator should be appointed, when a man is generally incompetent to take care of his property, although there may be periods when he is perfectly competent to do so.</p> <p>6. Same. — To make the verdict of the jury and judgment of the county court any evidence would require proof aliunde the record to show what the issue and proof were and the argument and deduction. It could not be admitted under the rule making judgments in regard to personal status of parties, evidence, on the ground of public policy, for no consideration of public policy could justify a rule that would admit a record where . it only bears remotely, if at all, upon the question.</p>

<p>1. Landlord and tenant. — Appellee had a conversation with one of the appellants, some six months before the expiration of appellee’s term, and appellant said, “ If you stay on you will have the rent reasonable and I will throw off for heretofore.” There appeared to be no acceptance of the offer at the time upon the part of appellee. Held, that this conversation did not constitute a contract and amounted only to a proposition on the part of appellants to change the rent; that appellants were entitled to notice of the acceptance of the proposition before the commencement of the new-term; that as no notice was given and no new arrangement was made, appellee must be held as occupying the premises as tenant from year to year, and must pay the same rent for 1881 that he had for the previous years.</p> <p>2. Application op payments by agreement. — Where a landlord and tenant had agreed that all payments or amounts for work and labor done or advances made by the tenant should apply on the rent, whether the rent was due or not, at the time of such payments or work and labor done, such payments having been thus applied by consent, can not be the basis of recovery over.</p> <p>3. Proceedings in distress. — The court is of opinion that the levy of the distress warrant in this case was sufficient. But if it was not sufficient, .the issue was immaterial, and if found for appellee, would not bar recovery as appellee had pleaded a set-off, and claimed to recover over for his account. The statute provides that proceedings in distress shall be the same as in attachment cases, and the distress warrant shall stand as a declaration. In attachment cases, the defeat of the attachment, where there was personal appearance, does not defeat the action, only the lien of the attachment, and this rule would apply in this case to allow recovery for the rent where there was personal appearance and defense to the merits.</p> <p>4. Instructions — Burden of proof. — Where there was no dispute, but that appellee was tenant of appellants from year to year, and would hold on the same terms for the following year unless the terms were changed by some other contract, the burden of proof, to show a change, rested upon appellee, and it was error to instruct the jury that the burden was upon appellants.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. O. W. Upton, Judge, presiding.</p>

<p>Error to the Circuit Court of Kane county; the Hon. 0. W. Upton, Judge, presiding.</p>

<p>Construction on lease. — A farm, consisting of eighty acres, twenty-two pasture land, and fifty-e’ght in grain, was leased one year, for a stipulated sum, with a covenant in the lease that the tenant, at his option, might have the premises for two years longer for the same sum per year, or two fifths of the grain delivered, etc. The tenant elected the latter and delivered two fifths of all grain raised as rent. The landlord claimed additional rent for the twenty-two acres. Held, a leasing of the entire farm for the stipulated grain rent.</p>

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

<p>■ Appeal from the Circuit Court of LaSalle county; the Hon. George- W. Stipp, Judge, presiding.</p>

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

<p>1. License to keep dram shop — Duty of saloon keeper. — A license to keep a clram shop legalizes sales of liquor to some persons but not to all and the law imposes upon the saloon keeper the duty of determining for himself at his peril, the competency of parties to buy.</p> <p>2. Discretion of agent — Principal liable in case of illegal sale. — An agent employed by a saloon keeper to sell liquor in the course of trade, is placed in a position where he is necessarily called upon to exercise a discretion in determining the legality of every proposed sale, and it must be held that in passing upon such questions and determining the fact, according to his best judgment he is acting within the authority conferred upon him and within the scope of his employment.</p> <p>3. Exclusion of evidence. — In this case, as appellee only claimed the minimum penalty under the law, the exclusion of the proposed evidence worked no injury.</p>

<p>Appeal from the Circuit Court of McHenry county; the lion. C. W. Upton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kendall county; the Hon. O. W. Upton, Judge, presiding.</p>

<p>1. Enfobcembnt of public bight, belatob need not show legal interest in besult. — Where the object of a proceeding is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested as a citizen in having the laws executed and the right in question enforced.</p> <p>2. Intebest of public in cobrect description of real estate— Taxation.' — The public have an interest in having every tract of land subject to taxation so described that it can be readily located from the description of it in the assessment roll and in the proceedings that may become necessary for the enforcement of the collection of the taxes assessed against it,</p> <p>3. Duty of the county clerk under the statute. — If the owner of any tract of land that can not be described except by metes or bounds, does not perform his duty under section 62 of the Revenue Act and have such tract surveyed and platted, and such plat recorded, then, under section 63 it becomes the duty of the county clerk to give the required notice, and in case of the refusal of the owner to perform such duty within thirty days, the clerk must cause such survey and plat to be made under his own direction.</p> <p>4. As TO DIFFICULTY IN PERFORMING SUCH OFFICIAL DUTY. — As to the objections made in this case to the petition and the relief prayed for, the statute does not contemplate that the object designed to be accomplished by its enforcement, can not be attained, and there is nothing appearing in the record that would lead the court to conclude that any such difficulty as suggested will be found so great but that it can be overcome if the respondent shall endeavor to do his official duty.</p>

<p>1. Vendor and vendee — Purchase on credit — Time when credit begins to run.- — The legal effect of a contract of purchase of an entire bill of goods, not of any specific articles but of goods of a kind, quality and amount specified, on six months’ time, is to make the price due and payable in six months from the time of delivery of the entire bill.</p> <p>2. Wrongful delay of delivery — Tender.—Where the goods are to he delivered at the place of sale and the vendee wrongfully delays the delivery, the vendor may secure his rights by making a tender, which is tantamount to a delivery. In such cases, a setting apart of the goods for the vendee and a notice thereof to him, will be a sufficient tender.</p> <p>3. Effect of acquiescence in delay. — If the vendor acquiesces in the delay of the vendee to call for the goods, without making a tender, he accepts the legal consequences, which is a postponement of the time from which the credit will run.</p> <p>4. Priority of liens — Where mortgage is prior to mechanic’s lien. — A borrows money of B, and for security executes a deed of his farm to B, and takes from B a bond to reconvey upon payment of the amount borrowed. Subsequently A contracts with 0 for a bill of materials to build a house upon the land. A fails to pay 0. Upon action brought, Held, that the lien of the material man is prior to that of the equitable mortgagee as to the building and subject to it as to the land. Where a sale of the premises is necessary, the proportion of the value of the building to that of the whole should be first ascertained and applied to the satisfaction of the claims of the material man.</p>

<p>1. Agreement to support grantor. — An agreement to support' the grantor where it forms a substantial part of the consideration, in a conveyance of land, is in the nature of a secret trust for the benefit oi the grantor, and if the transaction leaves the grantor indebted beyond his means of payment, will avoid the conveyance, as to the creditors not fully provided for.</p> <p>2. Presumption op fraud. — In the absence of proof to the contrary such an agreement will be presumed to have been a material part of the consideration. But the prima facie presumption of fraud may he rebutted by showing such agreement was a mere gratuity and did not enter into the consideration. Where the amount paid per acre is below the fair value of the land, the presumption of fraud is not overcome.</p> <p>3. Knowledge of original liability — Defective title. — Parties who knew of an original liability of a grantor are not warranted in assmning it has been paid, without inquiry made. If they take a deed, purporting to give them all of grantor’s available means of payment, they must be held to have taken a title affected by whatever of infirmity, if any, was imparted by then agreement to support grantor as part of the consideration.</p> <p>4. Delivery and indorsement of note — Immaterial allegations. — A husband’s possession of a note after notice to his wife of his indorsement of it to her, and the receipt of the husband at the post-office of another note, indorsed and mailed to the wife by the husband’s brother, is a possession and sufficient delivery to the wife, and she succeeds by virtue of the negotiability of the notes, to the rights of all assignors. In an action on the notes it is immaterial for parties, not creditors of the husband, to maintain that the notes were assigned to the wife to defraud creditors.</p> <p>5. Special contract necessary for son to recover for services in family after becoming of age. — A son remaining and working in his father’s family, after becoming of age, can not recover for such services without a previous contract therefor. Where a special contract is claimed to have been verbally made years before, and such a secret and stale claim is alleged as the liability of grantees to grantors, a "court of equity must hold grantees with great strictness to show that the agreement to support the grantor and his wife was not a substantial part of the consideration.</p>

<p>Appeal from the Circuit Court of Jo Daviess county; the lion. William Brown, Judge, presiding.</p>

<p>1. Question of negligence — Finding op jury when adopted.— On appeal before this court, where the finding of the jury upon a question of negligence determines the preponderance of evidence as to a primary fact which seemed reasonably doubtful, this court will defer to and adopt such finding, in view of the superior advantages the jury have in seeing, and hearing the witnesses, although the court’s inclination from the testimony transcribed may be to the contrary; but where the duty devolving upon this court is merely to characterize conduct shown, or to draw an inference from facts clearly proved or admitted, the court will be less reluctant to pronounce according to its own independent judgment.</p> <p>2. Walking upon railroad track. — Where there is no excuse or justification for the act it is negligence for a person to walk upon the track of a railroad, whether laid in the city or upon the open field, and he who deliberately does so will be presumed to assume the risk of the perils he may encounter.</p> <p>3. Negligence in going into known danger. — Where danger is actually known or apparent to ordinary observation or reasonably to be apprehended, proof of positive or special care to avoid it must be made to warrant a recovery.</p> <p>4. Contributory negligence — Fellow servants. — Deceased after finishing his day’s work started to leave appellant’s railroad yard, in which he was employed. On account of the snow elsewhere it was more convenient for him to walk on the track. While on the track he was struck and fatally injured by an engine running at a high rate of speed, which was being backed down from the tum-table. Held, that the negligence of deceased in going upon the track and while there, not looking for the known danger, materially and directly contributed to the injury. As between the negligence of deceased and that of defendant’s servants, there was no substantial difference, and as the verdict was against the evidence it was error to refuse defendant’s motion to set it aside.</p>

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

<p>Appeal from the County Court of Macoupin county; the Hon, R. A. King, Judge, presiding.</p>

<p>1. Negligence. — The train of appellant run over and Mlled appellee’s cow near a public crossing in the village. The train was running much faster than was allowed by the village ordinance, and no bell was rung or whistle sounded. Held, that as the train was running in total disregard of the law, to overcome the liability created by the statute under such circumstances, the preponderance of the evidence should show that the injury was not the result of the wrongful act of the railroad company. As the evidence wholly fails to do this, the judgment is affirmed.</p> <p>2. Instructions. — While some of the instructions given are inaccurate, yet the court is of .the opinion that substantial justice has been done, and that a new trial would result in the same judgment.</p>

<p>1. Erection of fence depriving adjacent owner of light and air, not A 'nuisance. — In the absence of an adverse right by prescription, grant or otherwise, an owner has a right to erect a fence or building upon his own land, which will have the effect to deprive the owner of adjacent premises of light and air to his house, and obstruct his view from the same, and such erection, unless made of offensive material, will not be a nuisance for which an action will lie.</p> <p>2. Declaration insufficient to sustain action. — The declaration in this case claimed damages because appellee had planted on his land a hedge within a few feet from appellant’s house, and permitted it to grow to a height of about sixteen feet, whereby currents of air were intercepted, and by reason whereof the house became damp and unwholesome, etc. Held, that this declaration was insufficient to sustain an action, as it failed to show that appellant had by any methods known to the law acquired an easement in appellee’s premises, whereby the same had been made servient to his for light or air, and it was not alleged the hedge in and of itself was in any manner a nuisance to appellant or his property. Although appellee has failed to file brief, yet the court can see no good in entering a pro forma judgment of reversal.</p> <p>8. Practice — Dismissal of suit. — The court below sustained the demurrer to the declaration, and upon appellant abiding by the same, it was adjudged that he take nothing by his suit, but that the same be dismissed. While this may be technically informal, yet this court regards it in substance as a judgment upon demurrer, which was properly followed by a judgment for appellee for costs.</p>

<p>Defective bill of exceptions. — The bill of exceptions in this case shows that the motion to dismiss the suit was founded upon an affidavit, but as this affidavit is not copied into the bill of exceptions, this court can not pass upon the error assigned. As the grounds for dismissing the appeal are not disclosed by the bill of exceptions and nothing appears to the contrary, this court must presume that they were sufficient to justify the action of the court in dismissing the appeal.</p>

<p>Error to the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Action of trespass for false imprisonment, when it will not lie. — An action of trespass for false imprisonment will not lie by a party arrested on a valid warrant issued against him by acourt having jurisdiction of the complaint. If the party causing the arrest acted maliciously and without probable cause, the remedy is an action on the case.</p> <p>2. Burden of proof — Malicious prosecution. — In an action for malicious prosecution, the onus is on the plaintiff to show that the criminal prosecution instituted by defendant, was the offspring of malice and without any probable cause to justify it.</p> <p>3. Verdict against evidence. — As the testimony in this case preponderates very heavily in favor of plaintiff’ in error and entirely disproves the charge that he acted maliciously and without cause in procuring the arrest of defendant in error, the verdict of the jury is not sustained and the judgment is reversed.</p>

<p>Injunction enjoining judgment at law. — Section 7 of the R. S., Chap. 69, declares that, “only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay and so much as shall be sufficient to cover costs.” Although in this ease there might have been a technical defense to the action on the notes, yet as the evidence is very clear that at the time the two injunctions were issued there was equitably due appellant the full amount for which the judgment had been rendered, the decree is reversed and the court below is instructed to dissolve the injunction and dismiss the bill.</p>

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

<p>Mechanic’s lien — Sub-contractors.—Appellees served notice on appellants that they had been employed by the principal contractor to furnish materials to erect appellant’s building, and that they would hold the building and ground liable for the amount due. At the time of the notice appellant did not owe the principal contractor anything, except the sum of $22.36, which they paid to appellees before suit brought. Held, that as it was not claimed that anything became due from appellants to the principal contractor, that they did not owe at the time the notice was served, appellees have failed to establish by proof their claim as sub-contractors (R. S. Oh. 82, §§ 29, 33). As to the claim made by appellees that they were original contractors, it is sufficient answer that it is not so set up in the bill.</p>

<p>Appeal from the Circuit Court of Greene county; the Hon. C. Efler, Judge, presiding.</p>

<p>I. Evidence — Special knowledge. — A witness who is possessed of special knowledge upon a subject of which the jury are not able to judge for themselves is competent to testify upon such subject and it is not a valid objection to his evidence that the question involves the point at issue to be decided by the jury.</p> <p>•2. Negligence — Instructions—Province op jury. — Negligence is a question of fact to be proved like any other material averment. In instructions to the jury, when negligence is the gist of the action, it is the duty of the court to define negligence and tell the jury what it is in law and leave all inferences arising from the existence of facts proved to be drawn by the jury.</p> <p>3. Instructions — Damages.—Where the act complained of was not wanton or willful and no evidence before the jury authorized punitive damages it was error to instruct the jury if they found for plaintiff “to assess her damages at such sum as they may believe from the evidence she is entitled to receive.” The instructions should have limited her right of recovery to such damages as she had sustained.</p>

<p>1. Practice — Decree pro confesso. — A decree pro eonfesso only concludes a party to the extent of the averments in the bill; the defendant can not in case of such a decree object to the sufficiency of the proof, but on error he may insist that the averments of the bill do not justify the decree.</p> <p>2. Bill to quiet title. — A bill to quiet title did not aver that complainant was the owner or in possession at the time the bill was filed. Held, that this averment, being the very ground of complainant's right, can not be left to inference, but must be proved. The allegation in the bill, that complainant was seized of title more than two and a half years before the bill was filed, will not justify the inference that she was seized on the day the bill was filed. The allegation that the mortgage depreciates complainant’s title is a mere inference which is not admitted by a default.</p> <p>8. Necessary averments in bill to quiet title. — A bill to quiet title must aver either that complainant was in possession of the premises or that they were unimproved and unoccupied at the time the bill was filed.</p> <p>4. Pleading — Cross-bill.—An answer which has none of the features of a bill in chancery, makes no parties defendant to it, calls on no one to answer it, can not become a cross-bill by simply asking that it be so treated. And even if such answer could, in this case, be treated as a cross-bill, it was error to take a decree upon it without either an answer or a rule to answer.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. O. T. Beeves, Judge, presiding.</p>

<p>Bih, @e exceptions. — As the bill of exceptions signed by the judge who tried the ease below failed to show that any exceptions were taken to the rulings of the trial court, this court can not consider the questions involved in this case. Although the clerk has copied into the transcript a statement that certain rulings of the court were excepted to, this was no part of his duty and does not entitle such statement to be regarded as a part of the record.</p>

<p>Appeal from the Circuit Court of Cass county; the Hon. L. Lacey, Judge, presiding.</p>

<p>Error to the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.</p>

<p>1. Railroads — Failure to keep fence in repair — When liable. —The statute does not make a railroad company liable for all injuries to stock, occasioned directly or indirectly by a failure to fence or keep its fences in repair. The liability is limited to such damages only as may be done by the agents, engines or cars of the company.</p> <p>2. Fright to horses by escaping steam, etc. — Company not LIABLE IF AGENTS ARE FREE FROM NEGLIGENCE IN THEIR USE. — Appellant’s fence, crossing the lands of appellee, was out of repair. Notice of its defective condition had been given to appellant’s servants. While so out of repair, appellee’s horse strayed from the field and came upon the track. The engineer slowed the train, whistled and rang the bell. The horse became frightened at the noise and ran ahead of the train, jumped three cattle-guards, and finally ran into a wire fence. He was injured either in a cattle-guard or by coming in contact with the wire fence. Held, that the damage appellee sustained was not occasioned by the agents, engines or cars of appellant. A railroad company is not liable for accidents arising from fright to.horses occasioned by escaping steam, signals, etc., if its agents are free from negligence in their use.</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. Gr. W. Herd man, Judge, presiding.</p>

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

<p>As the cause was submitted to the court below for trial upon precisely the same evidence as in the preceding case, the judgment will be reversed for the reasons assigned in the opinion of that case.</p>

<p>1. Drainage — Contract.—By the grading of the streets, the natural flow of water upon appellee’s premises was increased and his property damaged. In a suit for this damage, appellee recovered a judgment. Upon appellant commencing proceedings under the law of eminent domain, appellee agreed that if appellant would dismiss his condemnation suit and construct upon appellee's premises a good and substantial tile drain to carry off the water without any overflow, appellant might enter said premises and construct the same. The drain failed to carry off the water in times of heavy rain. Held, that this contract was a sufficient license to enter upon appellee’s premises to construct the drain, and that a count in trespass can not be sustained.</p> <p>2. Pleading — -Election ot actions — Damages.—If the drain failed to accomplish its purpose, appellee’s remedy for such defect was an action for breach of the contract, or a suit upon the original cause of action which he would have had if the drain had not been laid. In the latter case, appellee can only recover such damages as have accrued to him, by reason of the increase in the flow of water over that which would have flowed there had the grounds from which the w iter was collected remained in a state of nature, and any damages from the breach of the contract can not be taken into consideration.</p> <p>3. Former suit, when a bar. — The declaration in the former suit seems in part, at least, to have been based upon permanent, injury done to the prem'ses before that time, and as to everything embraced in that litigation the judgment then rendered is a bar to any subsequent suit.</p>

<p>Error to the Circuit Court of McLean county ; the Hon. 0. T. Reeves, Judge, presiding.</p>

<p>1. Co-tenants — In suit for partition, adjustment for improvements. — In a suit for partition between tenants in common, where one has advanced money to improve the property sought to be partitioned, a court of equity will, if practicable, allot to him the portion so improved without taking into the account the value of the improvements, or where such division can not be made, will allow him a reasonable' remuneration for the increased value of the premises caused by the same.</p> <p>2. Before a suit for partition judgment cued itor of a co-tenant can not bring other co-tenants into court to answer for improvements made by former. — A co-tenant can not be brought into court to answer to the judgment creditor of the other co-tenant for improvements made bj’ the latter upon the premises, which are the subject of such co-tenancy, in advance of a suit for partition, wherein all the equities growing out of such co-tenancy, up to the time of its severance, may be adjusted.</p> <p>3. Husband and wife as co-tenants — Intent with which improvements made, etc. — The intent with which and the circumstances under which the improvements have been made are always fair subjects of inquiry of a court of equity: and should it appear that in the absence of either actual or constructive fraud, a husband, where husband and wife were co-tenants, had made such improvements with the intent of conferring a benefit upon the wife in the nature of a gift without hope, expectation or promise from her that either he or his heirs should, in case of partition, receive any compensation therefor, the court would refuse to divest the wife of her legal title thereto for the benefit of her husband’s creditors.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. J. H. Williams, Judge, presiding.</p>

<p>Error to the Circuit Court of De Witt county; the Hon. G. W. Herdman, Judge, presiding.</p>

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

<p>Ebbob to the County Court of Jackson county; the Hon. J. Banks Mayham, Judge, presiding.</p>

<p>Absence op bill op exceptions. — What purports to be a bill of exceptions is attached to the record in this case, but it is not certified by the clerk as a part of the record. The court is thus precluded from a consideration of most of the matters urged by plaintiff in error.</p>

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

<p>1. Statute op limitations. — Where the service was performed and the promise to pay was made more than ten years before suit was instituted, plaintiff can not recover unless he proves a new promise to pay within five years next before the beginning of the suit.</p> <p>2. Evidence to overcome bar. — Where a party permits a debt to run, making no effort to collect it until the Statute of Limitations can be pleaded in bar of the action, he is in no condition to call upon a court to aid him upon slight proof. The evidence must be clear and satisfactory to overcome the bar of the statute.</p>

<p>1. Agency. — To create responsibility on the part of the principal, the agent must not only have been acting as agent but must have been acting within the general scope of his authority as such agent.</p> <p>2. When principal is concealed and credit given solely to agent. — Where the principal is concealed and the eredit is given solely to the agent and subsequently the principal is discovered, to create liability on the part of the principal it must appear from the evidence that the agent at the time of the indebtedness was acting within the general scope of his authority as such agent, or that the act of the person acting as agent was in some manner with a knowledge of the facts, ratified by the principal, or that the principal knowingly enjoyed the benefits of the transaction.</p> <p>3. Implied agency. — An implied agency is never construed to extend beyond the obvious purposes for which it is apparently created. The intention of the particular case, constitutes the true ground of every exposition of the extent of the authority, and when that intention can not be clearly discovered, the agency ceases to he recognized or implied.</p> <p>4. The same. — If the implied agency arises from the employment of the agent in a particular business, it is in a like manner deemed to be limited to that particular business. And the authority must ha implied from facts which have occurred in the course of such employment and not from mare argument as to the utility and propriety of the agent’s possessing it.</p> <p>5. The same. — An authority to buy and sell goods does not confer the authority upon the agent to bind the principal by drawing and indorsing bills and notes. In such a case the rule of law is that no agency will be inferred or implied unless there he some evidence of recognition in that particular case or in similar cases,</p> <p>6. Instructions. — The first and third instructions for appellee in this case, are erroneous, the first not being based on the evidence, and the third being an inaccurate statement of law, for even if it had been shown by the evidence as stated in the instruction that appellant got the benefit of the money borrowed by her husband, it would not mak1 her liable-for the debt. At the most it would only be a circumstance tending to show liability on her part.</p> <p>7. Husband agent of wife. — Appellant’s husband was a clerk or superintendent in her drug store. He had general charge of the business. But appellant owned the store, the bills were made to her and paid by her and she was at the store part of the time. Held, that as the evidence did not disclose any general or special authority or custom or usage authorizing appellant’s husband to borrow money for appellant and there being no evidence of any ratification on her part, she can not be held liable for the amount borrowed.</p>

<p>Appeal from the Circuit Court of Crawford county; the Hon. William P. Jones, Judge, presiding.</p>

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

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

<p>1. Recognizance — Change of tenue — Liability of sureties. — A county judge can not change the venue in a criminal cause or transfer it to the circuit court of his own volition, because an attorney for the defendant at the time of his election as county judge. Such an order is a nullity, and sureties can not he held liable for a failure on the part of the principal to ap•pear in the circuit court, for their pontract was for the appearance of the defendant in the county court.</p> <p>2. Practice — Recognizances.—Recognizancés must be prosecuted in the court in which "they are taken or acknowledged, or to which they are by law returned.</p> <p>3. Construction of a surety’s liability. — The undertaking of a surety is construed strictly, and can not be enlarged or varied by judicial construction. A surety is not held beyond the precise words of his undertaking, and in case of doubt as to his liability, the doubt is generally, if not universally, solved in his favor.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge* presiding.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. Amos "Watts, Judge, presiding.</p>

<p>Appeal from the County Court of Wayne county; the Hon. John Keen, Jr., Judge, presiding.</p>

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

<p>1. Revenue act, — Sections 93 and 97 of the Revenue Act must be construed together. One gives the county'board power to order a re-assessment of the township; the other requires the township to pay for the services of the assessor. Where there is township organization the statute does not require the county to pay the township assessor in any event.</p> <p>2. Re-asséssment oe township, township liable eor assessor's services. — Where a county board of supervisors of a county under township organization, ordered a re-assessment to be made of a township, as the first assessment was grossly incorrect, and under this order the assessor made and returned another assessment, and the equalization was made on the bas;s of the latter assessment. Held, that the township and not the county was liable for the demand of the assessor for payment for services rendered in the re-assessment. It is equitable and just that the expense of the re-assessment should fall on the delinquent locality rather than on the whole county.</p>

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

<p>Appeal from the City Court of East St. Louis; the Hon. William P. Launtz, Judge, presiding.</p>

<p>1. Evidence. — Where a suit was prosecuted against a conservatrix of a lunatic, and a party, were he alive, would be wholly disqualified to testify as a witness for the purpose of establishing the cause of action at issue, the statements of such interested party made while alive, are not admissible to make out such cause of action.</p> <p>2. Presumption from members of same family living togetiikr as one household. — The law will not, in the absence of special circuinstances, imply either an intention to charge or a promise to pay for board or services among members of the same family living together as one hous V hold. In such cases, the presumption naturally arises from the very fact of the relationship that it was intended as a gratuity. To rebut the presumption, ordinarily either an express contract must be proven or it must be shown by facts and circumstances that at the time the board was furnished or services rendered, the one expected to receive payment and the other to make payment.</p> <p>3. Parent and child. — From the evidence in this case, the court is of opinion that prior to 1876, the care bestowed upon the adult insane son was intended as a gratuity by the father, and therefore his administrator can not recover for such expenditures. But the change in the father’s circumstances, in 1876, added to the fact that then for the first time, the father learned that his son was entitled to a pension, and made application and was appointed his conservator and applied for a pension for his son, show that it was the intention and right of the father to charge his son for necessaries to be furnished him. The quasi liability under the Pauper Act, and from the moral obligation of a father to support a helpless son, ceased when it was ascertained that the son was possessed of a claim for accrued and future pension money.</p> <p>4. Implied contract for necessaries binding on an insane person. — The contract of an insane person for necessaries supplied to him in good faith may be enforced, and it is not necessary to prove a specific agreement because the law raises a contract by implication on the part of the insane person by virtue of which the amount of such necessaries becomes payable as a debt.</p> <p>5. Presumptions op law. — A promise may he imperatively and conclusively presumed by law from the existing relations between the parties, and sometimes a jury may infer a request or promise even contrary to the fact on the ground of legal obligation alone. The law will imply for an insane person no promise that is not reasonable and just. It is, however, pre-eminently just that pension money should be applied at least in part to the object for which it was intended and in payment for the necessaries of life furnished a lunatic pensioner by one, who at the time they were furnished, expected to receive compensation when the pension money should be collected.</p> <p>6. Practice — What is ' implied by the term cause of action.— The proper remedy of a creditor of one who is adjudged to be insane, is by suit against the conservator as his representative. The term, cause of action, implies not only a right of action, but also that there is some person in existence who is qualified to institute process. The right must be capable of being legally enforced, and there must also be a person to be sued.</p> <p>7. Statute of limitations. — A man can not be both plaintiff and defendant in a suit at law. Where a party could not institute suit against himself as conservator for a lunatic for necessaries furnished by him to the lunatic, the Statute of Limitations does not apply, and will create no bar to the recovery of the chum. *</p>

<p>1. Conflicting evidence — Instructions.—Where testimony as to an accounting was conflicting and fairly presented two aspects of the case, it was proper to submit to the jury instructions involving both aspects of the case. The court is of opinion that it was error to refuse the third and fourth instructions; they were duplicates of no instructions given, and as the instructions given did not fairly submit the real question in issue to the jury, both theories suggested by the testimony, should have b^en presented for their consideration. The court is also of the opinion that there was no occasion for the modification of plaintiff’s second instruction, and that the modification made was calculated to mislead.</p> <p>2. Evidence. — Where at the time of an accounting, appellee was solvent and in good financial circumstances, and this fact made it more probable that Gr. would surrender the note in question on which J. was security and take the simple promise of appellee for the indebtedness, evidence as to such fact was material and proper; but where the insolvency of appellee in 1879 was an immaterial matter and shed no light upon the question at issue, and was likely to mislead and prejudice the jury, such evidence was inadmissible.</p> <p>3. Practice. — A party should object to improper statements of a witness at the time they are made. A motion to exclude all of a witness’ testimony, made after it was closed, can not be sustained, where some of it was competent and proper.</p>

<p>Appeal from the County Court of Ht. Pulaski county; the Hon. Henry M. Smith, Judge, presiding.</p>

<p>Error to the County Court of Johnson county; the Hon. Chas. N. Dameron, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jasper county; the Hon.. Chancery S. Conger, Judge, presiding.</p>

<p>1. Railroad track not, per se, a public nuisance. — A railroad track in a street is not necessarily, per se, a public nuisance. Nor can it be said, as a matter of law, that it is an obstruction.</p> <p>2. Defective indictment. — Where an indictment under sections 221 and 222 of the Criminal Code did not directly aver that the railroad track in question was an obstruction to the street. Held, That the indictment was not good.</p> <p>3. Pleading. — Every fact and circumstance stated in an indictment must be laid positively. They can not be stated by way of recital, nor by way of argument or inference; the allegations must be in words clear, direct, and not argumentative or inferential.</p>

<p>1. Garnishment. — The proceeding by garnishment is purely statutory, and cases not plainly within the statute are to be disregarded. The proceeding is in effect a suit by the judgment debtor for the use of his creditor against the garnishee, and generally speaking, it may be maintained in all cases where an ordinary suit would lie against the latter in favor of the judgment creditor."</p> <p>2. Practice — When process of garnishment will not lie.— For reasons of public policy, a municipal corporation is held not liable to the process of garnishment, and when the money is in the custody of the law it can not be reached in this way.</p> <p>3. When official io amenable to the process — Whenever an official holds money merely as the agent of the law, he is not amenable to the process of garnishment, hut when his relation is so far changed that he is under a personal obligation to the judgment debtor, he is amenable to such process.</p> <p>4. Administrator amenable to process of garnishment. — The court is of opinion that the case of an administrator is analogous to the cases of a master in chancery and sheriff (47 Ill. 237 and 12 Ill. 358) and that there is a personal obligation from the administrator to the judgment debtor.</p>

<p>1. Practice — Party entitled to begin and reply. — The general rule is that the burden of proof is upon the party who substantially asserts the affirmative of the issue, and as a consequence the party so asserting the affirmative is entitled to begin and reply, regard being had to the substance and effect of the issue rather than the form of it.</p> <p>2. Burden or proof — Instruction.—Where the pleas admitted plaintiff's cause of action and by the plea of set-off defendant asserted that plaintiff owed him a greater sum for certain services, defendant was, in effect, maintaining a cross-action against plaintiff for this demand, and his attitude and mode of trial were the same as though he was prosecuting an original action. As the burden of proof was then upon defendant to establish his demand by the preponderance of the evidence, and he must show that the services were rendered under some contract, express or implied, the nature of the contract, and its terms, if express, the instruction given in the case was erroneous.</p> <p>3. Instruction as to interest oe witness. — The interest of a witness in the event of a suit is properly to be regarded in estimating the weight of his testimony, and in a case where an interested party testifies, a court should not refuse to give an instruction to such effect.</p>

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

<p>L General rule of damages where seller fails to deliver.— The general rule of damages in the purchase and sale of personal property where the seller fails to deliver, is the difference between the contract price and the market price at the time and place of delivery. But where a specific article is bought for a specific purpose, known to the vendor at the time of sale, and such article can not be had on the market or has no ascertainable market value, the general rule does not apply.</p> <p>2. Measure of damages. — Where one of two contracting parties, not being himself in default, suffers a loss by the wrongful default of the other, he ought to receive full and just compensation therefor. His recovery is to be limited, however, to such damages as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as a probable result of the breach of it.</p> <p>3. Evidence. — Where there was evidence tending to show the making of a certain contract, appellant had the right to put in evidence as to damage upon the hypothesis that the contract was proven.</p> <p>4. Waiver. — The mere acceptance of a purchased article after the agreed time for delivery has elapsed, does not of itself constitute a waiver of damages for the delay, unless such acceptance is attended with such circumstances as to manifest an intention on the part of the buyer to waive such damages.</p>

<p>Setting aside a judgment. — The law intends that every one shall have a fair trial, and if prevented therefrom by accident or misfortune, without his fault, a judgment rendered against him should, upon a proper showing, be set aside.</p>

<p>■1. Evidence. — Where a witness testified upon the former trial that he did not remember whether a certain arrangement was made or not, and upon the subsequent trial testified that he remembered no such arrangement was made, this discrepancy detracts from" the weight to be given his testimony.</p> <p>2. Contract for commissions. — Where it was proven by a preponderance of the evidence that an agreement was made with a certain firm to share commissions with appellees if they should furnish a customer, and with appellant if he should", and appellant furnished a customer entirely independent of appellees. Held, that appellant is entitled to a share of the commissions with the firm, and appellees are not.</p>

Elliott Anthony, Judge, presiding. This was an action of assumpsit by appellee against appellant, for services, work and labor as a servant of appellant from July 31, 1871, to December 25. 1880. Appellant pleaded the general issue, and a plea of a discharge in bankruptcy on peti7 tion filed April 18, 1878. There was a replication to the latter plea, alleging that $700 of the claim sued upon, accrued subsequent to the discharge in bankruptcy.

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

<p>Variance between allegations and proofs. — Allegations and proofs must agree, and allegations which are essentially descriptive of the contract must he proved as set forth, or the variance will be fatal.</p>

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

<p>Liability of fibe insurance companies under statute — Statute of limitations. — The liability imposed by the sixteenth section of the Statute in relation to fire insurance companies, being in the nature of a statutory penalty, is within the provisions of the fourteenth section of the Statute of Limitations, and is barred after two years from the time che action therefor accrues.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.</p>

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

<p>1. Evidence — Husband and wipe. — The general rule in the absence of a statute is that a husband or a wife is not a competent witness for or against the other in a suit to which the other is aparty. Where the husband or wife is not a party to the record, but yet has an interest directly involved in the suit, and therefore is incompetent to testify, the other is also incompetent.</p> <p>2. Exception to general rule. — In all cases of personal injuries committed by the husband and wife against each other, the injured party is an admissible witness against the other.</p> <p>3. In collateral proceedings. — In collateral proceedings not immediately affecting their mutual interests, they not being parties to the suit, their evidence is receivable, though it may tend to criminate or subject the other to a legal demand.</p> <p>4. Suit por malicious prosecution. — In a suit for malicious prosecution where a husband was plaintiff, his wife was allowed to testify in his behalf. Held, that as this case is not covered by any of the five exceptions specified in the statute, the general rule of exclusion applies, and the admission of the wife's evidence was erroneous.</p> <p>5. Instructions — Burden op proof on question op probable cause. — Although a portion of an instruction standing alone would'improperly shift the burden of proof on the question of probable cause from the plaintiff to the defendant, yet if the other portions of the instruction stated the rule clearly and accurately, the court can not assert that the jury were liable to be misled by it.</p> <p>6. Malicious prosecution — Suspicion distinguished prom conviction. — In an action for malicious prosecution it is held to be enough if the facts and circumstances are sufficient to produce an honest and strong suspicion of the guilt of the accused. An instruction using the term conviction instead of suspicion would be erroneous as it would require a higher degree of proof than the law requires.</p>

<p>1. Variance. — Where an instrument under seal executed by one of the defendants alone in the absence of all the other defendants, was described in the declaration as made by all the defendants, plaintiffs must show that it was so made or there will be a fatal variance.</p> <p>2. Partner can not bind co-partners by instrument under seal without, etc. — An instrument under seal and signed by one co-partner in the absence of the other co-partners is binding upon the others, if each of the co-partners gave Ills parol assent previous 'to the execution thereof, or subsequently, with knowledge of its purport, ratified it. Such prior assent or subsequent ratification need not be express but may be implied from the acts and declarations of the parties whose liability is sought to be established, and from other proper evidence tending to show such assent or ratification, and in the absence of such assent or ratification, the partner who signed the instrument is alone liable under it.</p> <p>3. Partnership, the grand characteristic of. — Persons engaged in any trade, business or adventure upon the terms of sharing the profits and losses arising therefrom are partners in that trade, business or adventure. An agreement to share the net profits necessarily implies a sharing of the losses.</p> <p>4. Usual characteristics of an ordinary partnership. — The court is of opinion that the agreement in this case presents all the requisite characteristics of an ordinary partnership, i. e., community of interest in the profits and losses, community of interest in the capital to be employed in the enterprise, and community of power of management.</p> <p>5. Construction of contract —Where a construction of a written contract was indispensable to the decision of the question of partnership it was error for the court to pass upon all matters of fact necessary to a recovery where the general issue was pleaded, and refer to the jury the matters of law arising upon a construction of the contract.</p> <p>(j. Instructions. — An -instruction omitting all hypotheses as to certain facts necessary to a recovery and closing with the direction “and your verdict should be in favor of the plaintiffs” is erroneous. The effect of such a direction is to impress the jury with what they would suppose to be the opinion of the court as to the merits of the case, and thus gives the plaintiffs an unfair advantage.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Horan, Judge, presiding.</p>

William H. Barnum, J udge, presiding. This was a prosecution under the Bastardy Act, Chap. 17, Kev. Stat., instituted upon complaint of the relator, Augusta Hilmus, against appellant Volksdorf. The complaint was made before a justice of the peace, by whom appellant was bound over to the Criminal Court of Cook county.

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

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

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

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

<p>Error to the Circuit Court of Cook county; the Hon. Thoma s A. Moran, Judge, presiding.</p>

<p>Error to 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>Error to the Superior Court of Cook county; the Hon. Rollin’ S. Williamson, Judge, presiding.</p>

<p>1. Judgment on award op arbitrators. —Jurisdiction to enter judgment upon award of arbitrators, being wholly given by statute, the proceeding must conform strictly to the requirements of the statute or the court will' have no jurisdiction nor authority to enter judgment upon an award.</p> <p>2. Two CLASSES OP CASES OF SUBMISSION TO ARBITRATION. — Under Sec. 1 of the Act in regard to arbitration and awards, relating exclusively to pending suits, the court has no authority to order a submission to one arbitrator, or to any greater or less number than three. Under Sec. 16 parties may submit controversies between them to any number of arbitrators mutually agreed upon; but to entitle them to have a judgment rendered upon the award it must affirmatively appear in the articles of submission, that the submission was of matter not in suit. In this case the submission was not made by an order of court, but by the agreement of the parties, the submission being to a single arbitrator; but as the submission fails to show that the matters submitted were not matters in suit, the parties have not brought themselves within either section of the statute.</p>

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

<p>1. Demurrer to cross-bill. — The court below properly sustained the demurrer to appellants’ cross-bill as it did not contain any allegation or statement of fact or circumstance showing that complainants in the creditor’s hills, or some of them, participated in the alleged fraudulent acts ot' the administrator, committed with the design of rendering his sureties liable upon the bond. . .</p> <p>2. Creditor’s bill — Executions—Burden of proof. — Where a creditor’s bill sets out a judgment and issuance and return nulla bona of executions thereon, and the answers admit neither the amounts due nor the re.turns nulla bona, the complainants are required to prove them.</p> <p>3. Execution — Return of sheriff. — Where it appeared by complainant’s own showing that under two of the executions, the sheriff had levied upon a considerable amount of personal property as belonging to the defendants, and all that was shown in'regavd to it, was a statement in the sheriff’s return, that such property had been taken from him by the coroner by writs of replevin, and that by direction of the plaintiffs’ attorney he returned the writ no part satisfied, and the sheriff did not say he demanded any property of defendants. Held, that under these circumstances the complainants should have shown that without any fault of the sheriff, or of the plaintiffs in the execution, or by some instrumentality of .the defendants, the property so levied upon, could not have been made available to the payment of the respective judgments in whole or in part.</p> <p>4. Chancery — Decree ordering sale of property to satisfy judgment.- — Where a decree subjects certain property to the satisfaction of a judgment and orders a sale for that purpose, it must ascertain the precise amount for which the premises are liable or it will be erroneous.</p>

<p>1. General rule in cases of tresspasssers on private grounds —The owner of private grounds is under m obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees, or others who come upon them not by invitation, either express or implied, but for their own convenience or pleasure, or to gratify their curiosity, however laudable • their purpose may be.</p> <p>2. Exception — Children — Negligence. — The owners of private grounds are liable for injuries to children although trespassing at the time, where from the peculiar nature and exposed position of the dangerous defect or agent, the owner should reasonably anticipate such injury to flow therefrom, as actually happened.</p> <p>3. The same. — The distinguishing principle upon which such cases rest is that the persons injured were mere children without judgment or discretion, and likely to be drawn by childish curiosity or the instincts of childhood into places of danger.</p> <p>4. Question of negligence for jury to decide. — The jury in the present case should have been left to find from the evidence whether the bridge in question was a dangerous structure from which defendant should have reasonably anticipated such injury as occurred, and whether the servants in charge of the bridge used ordinary care and precaution to prevent the happening of the injury.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. William IT. Barnum, Judge, presiding.</p>

<p>Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Jndge, presiding.</p>

<p>Witness — Insanity.—Where plaintiff was a witness in his own behalf testifying in regard to an alleged special contract made with defendant, it was competent for defendant, who denied that such contract was ever made, to prove by testimony aliunde that plaintiff was a lunatic at the time when he claimed the special contract was made, and at the time of being a witness. Such evidence is clearly competent as affecting the credibility of the witness.</p>

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

<p>1. Bankruptcy — Pending suit. — If a defendant served with process, who during the action, is adjudged a bankrupt, would avail himself of his bankruptcy as a defense to the suit, he must make application for a stay of proceedings as provided by the Bankrupt Act.</p> <p>2. When judgment will merge original cause op action. — If he neglects so to do and a judgment is rendered against him, he can not afterward, when he has obtained his discharge, base upon it the right to enjoin such judgment, but the judgment will merge the original cause of action, and become a new debt not provable against the bankrupt’s estate, and wholly unaffected by the discharge.</p>

<p>1. Malicious prosecution — Motive.—In an action for malicious prosecution, the motive of the defendant in instituting the prosecution is immaterial, if there was probable cause for making the arrest. Even if he was actuated by feelings of revenge or hatred and there was probable cause, he would not be liable.</p> <p>2. Instructions. — An instruction that the prosecution of a person criminally, with any other motive than that of bringing a guilty person to justice, is a malicious prosecution, is erroneous.</p> <p>3. Probable cause. — Probable cause is such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person ac- . cused is guilty.</p> <p>4. Instructions. — Upon a vital point in a case, instructions should not be. in conflict with each other, as it can not be known which instruction the jury will follow.</p>

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

<p>Negligence — Instructions.—An instruction which attempts to define the character and degree of negligence which would authorize a recovery for an injury, hut which omits the essential qualification that the negligence upon which a recovery must be based, is such as contributed to the injury and such alone, is erroneous.</p>

<p>1. Affirmance of contract — Consideration.—A party can not, while affirming a contract of sale, repudiate the consideration which formed an integral part of the contract and recover another and different consideration. A party to a contract can not affirm it in part and avoid it as to the residue.</p> <p>2. Affirmance. — That a party to a deed did not know the contents of the deed at the time of executing it, is wholly immaterial, if afterward with full knowledge of its contents, he adopts it and seeks to avail himself of any rights under it. If he affirms and relies upon the contract, he must take it cum onere subject to all its terms and conditions.</p>

<p>1. Failure to show term of insurance. — The stipulation in this case shows that the policy was issued December 3, 1878, but is entirely silent as to the term of the insurance. It was incumbent upon plaintiff to show that the policy was in force December 17, 1878, the day of the loss. As plaintiff, so far as appears by the record before this court, has wholly failed to show this, the court is unable to say that the court below erred in finding the issues for the defendant.</p> <p>2. Insurance — Evidence as to value. — The fact that defendant insured plaintiff's property for $500, was no evidence as to its value, there being no pretense that the policy was a valued one. The contract of insurance is a contract of indemnity, and where it does not appear that plaintiff has lost anything of value, he is not entitled to recover any indemnity of defendant, at least beyond a nominal sum.</p>

<p>1. Decree bob damages — Injunction—Evidence.—A decree for damages on the dissolution of an injunction can not be sustained unless the evidence upon which the damages are assessed is preserved in the record.</p> <p>2. Chancery pleading — Suggestions ob damages. — While suggestions of damages in such a case need not be framed with all the technical accuracy of common law pleadings, they should be sufficiently certain and explicit to give the other party information as to the nature and amount of damages claimed. The court is of opinion in this ease that after rejecting as surplusage such portions as are vague and -uncertain, there remains sufficient to answer the requirements of the law.</p> <p>3. Failure to take exceptions. — Where complainant failed to take any exceptions to the form or sufficiency of the suggestions of damages in the court below, he must be deemed, for all the purposes of this appeal, to have waived defects of this character.</p> <p>4. Damages where injunction is dissolved. — In all cases where an injunction is dissolved, such damages may be assessed as the nature of the case may require and to equity appertain.</p> <p>5. Same. — The assignment of error in this case as to the damages awarded being excessive, can not be sustained from anything appearing in the record.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.</p>