Volume 13 — Illinois Appellate Court Reports

William H. JBaenum, Judge, presiding. This action was trespass quare domum fregit brought by Sarah B. French in the court below against Henry W. and Ella M. Savage.

Elliott Anthony, Judge, presiding. This action was trover by Dalziel against Cole, in the court below to recover for the wrongful conversion of a promissory note made by third parties, June 13, 1881, for $500, payable to plaintiff’s firm in ninety days.

<p>1. Declarations op agents.—The declarations of an agent or servant are not competent evidence against another agent of the same principal. Appellant, as president of the Omnibus Company, was merely an agent of the same corporation of which the omnibus drivers were employes, and consequently them declarations were inadmissible.</p> <p>2. Evidence—Instructions.—An error in admitting evidence is not cured by an instruction to the jury not to consider such evidence.</p> <p>8. Preponderance op evidence.—The court is of opinion that the verdict is against the preponderance of the evidence.</p>

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

<p>1. Instructions.—The instruction given in this case is erroneous, because it is subversive of the right of trial by jury, because it states that the debt was only matter of form, whereas it was matter of substance to be found by the jury, and because it is misleading as to the effect of the payment of damages.</p> <p>2. Certainty in specifying total of fee-bill.—The total of a fee-bill, being made by statute a part of the judgment, must be governed by the rules applicable to judgments. Where a fee-bill, comprised of several items, was footed up and the result expressed thus “ 15.10: total.” Held, that the fee-bill lacked the requisite certainty.</p>

<p>1. Matter of law and fact tried by the court by agreement.—Where a cause is submitted to the court for trial, by agreement of parties to the suit, the court derives its power to try the issues of fact involved solely from the agreement. When the terms of the agreement have been fulfilled, the power is exhausted, and the cause must thereafter proceed as though no such agreement had been made.</p> <p>2. Effect given to finding of the court.—The finding of the court is given the same effect as a verdict of a jury, and is equally conclusive wit'h a verdict upon all controverted questions of fact.</p> <p>3. Practice—Non-suit.—Where the issues of. fact are tried by the court, the right of the plaintiff to submit to a non-suit can not be exercised after the court has announced its finding, and such finding has been entered of record.</p> <p>4. Power of judge.—A judge has no other or different power over a finding of the court than he has over a verdict. Where a court, after finding the issues for defendants, instead of awarding a new trial, in effect retried the case, and that, too, informally, Held, that this was error.</p>

<p>1. Preponderance op evidence.—The court is of the opinion that the alleged assent of defendant to the correctness ®f plaintiif’s charges for legal services as slated in his account, and defendant’s promise to pay the balance of one hundred and forty-eight dollars, were not made out by a preponderance of the evidence.</p> <p>2. Attorney and client.—A court from general principles of policy and equity will always look into the dealings between attorney and client, and guard the latter from any undue consequences resulting from a situation in which he may he supposed to stand unequal.</p> <p>3. Account stated—Instruction.—An account stated is only prima facie evidence of the correctness of the account. As the insfruetion given, would lead the jury to conclude that an account stated was something which rendered the original merits or extortionate character of the plaintiif’s charges entirely immaterial, and that it was absolutely conclusive upon the defendant, and'while purpirting to give all the elements necessary fora recovery, wholly omitted any reference to the relation of attorney and client, it was improper.</p>

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

<p>Instructions.—In giving instructions, courts should not assume a fact as proved in respect to which there is a conflict of evidence. Whether appellants were partners and thus capable of making admissions as to their partnership business which would hind each other, was a question of fact which should have been embraced as a part of the hypothesis of the instruction given, instead of being assumed by the court.</p>

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

Hollín S. Williamson, Judge, presiding. This was an action on the case, brought by Jeremiah O’Connor, against the Chicago and Eastern Illinois Railroad Company, to recover damages for a personal injury received by the plaintiff, in consequence of being run against, and struck by one of the defendant’s locomotive engines.

Murray F. Tuley, Judge, presiding. This is an appeal from an order committing appellants for contempt for the violation of a decree of the circuit court, requiring them to deliver possession of a house which, it is claimed, belongs to appellee by virtue of a decree in certain foreclosure proceedings to which appellants were parties defendant.

<p>1. Instruction—Assumption of facts.—The instruction given in this case is erroneous because, while the evidence tended to show mutual negligence, it, in effect, assumes or asserts as a fact that deceased at the time of his death was in the exercise of reasonable and ordinary care and prudence, and was ignorant of the defects of the brake.</p> <p>2. The same—Defect in machinery.—The instruction is also erroneous in holding that defendant would be liable if the defect causing the injury was one which, by the exercise of reasonable and ordinary care coxM have been discovered and corrected. The jury should have been left to say wha.t, in their judgment, would have been discovered by the exercise of ordinary care, not what could have been thus discovered.</p> <p>3. Doctrine of comparative negligence.—A plaintiff, though guilty of negligence contributing to the injury complained of, may still recover if his negligence is slight and that of the defendant gross in comparison therewith. But to entitle a plaintiff to recover under this rule, there must be no want of ordinary care on his part. As the instruction appears to hold that the plaintiff, though guilty of slight negligence, may recover if the defendant is shown to be guilty of only ordinary negligence, it is erroneous.</p>

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

<p>1. Uelattjui, confederacy.—A scheme concerted between A and B, by which A is to keep up B’s credit (who is in failing pecuniary circumstances) so as to enable him to buy goods upon credit of innocent parties, by A paying all such expenses as are indispensable to that end, and the goods so bought, upon their arrival in Chicago, are to be taken of B by A at seventy-five cents on the dollar, and actual y or colorably employed in the satisfaction of B’s indebtedness to A, A and B well knowing that such innocent third parties will never he paid for these goods, amounts to an unlawful confederacy, and in such case it is immaterial whether B made any false representations to the third parties or not.</p> <p>2. Vendor and vendee.—If a vendee purchase goods with the preconceived design of not paying for them, the purchase is fraudulent, and the vendor may treat the sale as a nullity and maintain trover or replevin for the goods against the vendee, or one acting in privity with him in the purchase, or any other party not a bona fide purchaser, mortgagee or pledgee, for a valuable consideration.</p> <p>8. Evidence of fraudulent intention.—While a re-sale of the goods by the vendee at reduced prices immediately after they get into his possession will afford evidence of such fraudulent intention, where the arrangement lo so dispose of the goods is made in advance of the purchase, the evidence of fraud is still stronger.</p> <p>4. Insolvency of vendee.—The mere insolvency of the purchaser and his inability to pay for the goods when purchased, even though well known to himself, will not avoid the sale, if no false statements or tricks are employed to obtain the goods.</p> <p>5. Instructions.—Where the evidence is conflicting upon material facts, the instructions should be clear and intelligible, state the law accurately and not assume any material controverted fact. As the instruction given under the second theory of this case submitted to the jury no facts which would warrant a finding that the purchase was fraudulent as between plaintiff and B, disconnected from A, to connect A with the purchase, the instruction should have submitted it to the jury to find that A fraudulently procured the sale to be made by the plaintiff to B.</p>

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

Elliott Anthony, Judge, presiding. This suit was by Frau a, the appellee, to recover against the Pennsylvania Company, the appellant, for a personal injury suffered by the plaintiff, May 18, 1882, resulting in the loss, of his right leg and the big toe of the other foot, by being run into by a car of the defendant, which was being backed up by a locomotive, while plaintiff was riding in a wagon drawn by a mule, and attempting to cross the defendant’s railroad track, at its…

<p>1. Estoppel by conduct.—The necessary e'ements of an estoppel by conduct are: 1. A representation or concealment of material facts. 2. The representation must have been made with knowledge of the facts. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been mads with the intention that the other party should act upon it. 5. The other party must have been induced to act upon it.</p> <p>2. Instruction.—As the instruction given in this case upon estoppel by conduct was clearly defective and misleading, the judgment is reversed.</p>

Joseph E. Gary, Judge, presiding. This was a suit brought by appellee against appellants before a justice of the peace, to recover upon certain cartage tickets, issued by appellants, to one Fitzgerald for teaming done by him for them, and which appellee bought of Fitzgerald. The tickets were in the following form: “ Hibhard, Spencer & Go. Cartage Ticket, 50 cents.

Rollin S. Williamson, Judge: presiding. This was an action brought by Hedstrom & Co., wholesale dealers in coal, against the firm of Baker Bros., like dealers, to recover upon an account for coal sold and delivered by the former to the latter, the balance being $±,027.37.

John Gr. Rogers, Judge, presiding. Assumpsit upon a policy of insurance against loss by fire, issued by appellee to appellant, on his two story and basement brick building, Mo. 3725 South Halsted street, Chicago. The building was partially destroyed by fire, causing a loss of $540. The declaration was in the usual form, containing two special counts on the policy, and also the common counts.

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

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

Joseph E. Gaby, Judge, presiding. This was assumpsit brought by appellee against appellant to recover for wages. The declaration contained the common counts only. Elea non-asswnpsit. There was a jury trial resulting in a verdict for the plaintiff for $1,250, and judgment thereon. The defendant’s motion for a new trial being overruled, he appealed to this court. The facts sufficiently appear in the opinion of the court.

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

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

<p>1. Jurisdiction.—In a petition by an executor for an order to sell real estate for the payment of debts, an appeal lies from the probate court to the appellate.</p> <p>2. Sufficiency of petition to sell real estate.—Where a petition stated that the debts and demands against the estate of the decedent amounted to $1,350.30 but wholly failed to state the amount of claims allowed, or whether any claims had been allowed, and failed to give any estimate of the amount of just claims to be presented, or to state whether there were any just claims unpresented. Held, that such a petition is not sufficient to support an order of sale. The proceeding to subject the lands of a decedent to sale for the payment of his debts is purely statutory, and the provisions of the statute prescribing what facts must be set forth in the petition are clearly mandatory and must be substantially complied with.</p> <p>3. Awabd—Admissions.—Where the evidence tended to show that an award was made something over six months after the appraiser’s warrant and appraisement bill had been returned by the appraisers and filed in the probate court, and it was urged that at the time the award was made, the warrant was functus officio and as the record showed no subsequent order or authority from the probate court to the appraisers to proceed to make an award, in making it the appraisers were not acting officially. Held, that while this view might be entitled to some consideration, the admissions of appellants that said award was made out and returned into court by the appraisers of the es'ate, dispensed so far as appellants were concerned with further proof of the official character of the persons who made and certified the award.</p> <p>4. Award in favor of children.-—The widow’s award .is a claim against the estate for which, in case of a deficiency of personal assets, the íeal estate of the decedent ma.y be sold. Where there is no widow and the award is made in favor of the children, the same rule applies.</p> <p>5. Doty of administrator.—As a general rule it is no part of an administrator’s duty to pay a claim against an estate until the creditor presents it in court, proves it and has it allowed, and where an administrator pays it before it is allowed he does so at his peril and must take the risk of proving it and getting it allowed the same as any other creditor.</p> <p>6. Rights of third parties.—In proceedings of this kind the administrator can sell only the rights in the land which the decedent had at the time of his death, and rights outstanding in third parties are in no way affected by the decree and sale. It is not necessary to make such third parties, parties to the suit.</p>

Joseph E. Gaby, Judge, presiding. This action was case brought by the appellee Monaghan against the appellant corporation, to recover for a personal injury to the former received by the sudden caving in of a bank of earth, while he, as the employe of appellant, was digging in the same, occasioned, as the plaintiff claimed, by reason of the negligence of appellant.

Hollín S. Williamson, Judge, presiding. This was debt upon a replevin bond brought by appellee as coroner of Cook county, against appellants, obligors in the bond. The declaration was in the usual form. The defendants pleaded, 1st, non est factum, 2d, that as to any greater damages than one cent actio non because the merits of the replevin suit were never tried, and the property was the property of Widdecombe. Issue to the country was joined on the first plea.

<p>Jtjbisdiction—Fbeeiiold involved.—Where a cause was brought to the appellate court on error from a decree of the court below finding the indebtedness of plaintiff in error to 0. W. Koons, one defendant in error, on his notes and mortgages, to be $9,547.73, and decreeing the relief prayed for, to wit: the cancellation of the note and mortgage and the trustee’s deed of the lands to W. B. Koons, the other defendant in error, on condition that plaintiff in error pay the sum found to be due within three months. Held, that as W. B. Koons’ title is regular on its face, and is a good title unless he has obtained it by fraud, or unless he is a voluntary trustee holding the legal title for the mere accommodation of 0. W. Koons, the question of a freehold is im o'ved, and this court has no jurisdiction.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. 1ST. M. Laws, Judge, presiding.</p>

<p>Recognizance—Variance.—Where the recognizance was several only and the scire facias averred that the recognizance was joint and several and appellants agreed that they would take no advantage of a variance between the scire facias and recognizance, and the court entered a joint judgment against appellants. Held, that while appellants can not take advantage of any variance, they have a right to insist that the judgment shall be entered in accordance with the recognizance and not according to the averments of the scire facias.</p>

<p>1. Crossing railroad track—Negligence.—It is not, as a matter of law, allowable for a party about to cross a railroad track, to implicitly rely on the judgment of a flagman or watchman, as to bis safety in crossing; but aside from that, he must use the prudence and caution that a reasonably prudent man would, under all the circumstances.</p> <p>2. Instruction.—Where the court instructed the jury to the effect that if the flagman signaled appellee to cross, he was not negligent, in obeying'. Held, that this was improper. Such instruction would remove from the jury all other facts tending to show negligence. For, although a switch-man may have been at the crossing, and although he may have beckoned appellee to cross, yet it may have been perfectly apparent to any prudent person, that it would have been very dangerous to cross.</p>

<p>1. Evidence—Contract.—Where appellant brought suit against appellee for seventy dollars, which, it was claimed, appellee, in consideration of appellant causing to be printed a lithograph portrait of appellee in a history of DuPage county, then in preparation, agreed to pay; and the court permitted witnesses to testify to what the witnesses claimed to be inaccuracies in, and omissions of, a number of events which, it was claimed, ought to have been put into the history. Held, that such evidence was improper. It did not tend to prove that the book in question was not a history of DuPage county, and if allowed would introduce a number of collateral issues foreign to the investigation.</p> <p>2. Instructions.—The instruction of appellee, which singled out the witness R. for impeachment instead of applying the rule in general to all witnesses, was improper.</p>

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

<p>Appeal from the Circuit Court of La Salle county; the lion. George W. Stipp, Judge, presiding.</p>

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

<p>1. Control of property acknowledged by execution debtor-— Levy.—Where the basis upon which appellant’s claim rested was, that appellee had waived his right to claim certain corn, and had actually turned it out on the execution to the constable, and that the constable had made the levy in pursuance of such action. Held, in such case it was not necessary as between the parties to the execution that the property should he within the constable’s sight, presence or manual control. Where the control of the property is acknowledged by the execution debtor to be under the officer holding the writ, and he indorses a levy in accordance therewith, the levy is good as to such execution debtor.</p> <p>2. Execution sale—Notice.—In all cases where the purchaser of personal property at execution sale buys without notice implied or in fact, the want of notice can not affect his title.</p> <p>3. Purchase by execution creditor—Burden of proof to show want of notice.—Where an execution is valid and a levy and sale have been proved, in case the execution was issued under a valid judgment, when the purchase of the property is by the execution creditor, the burden of proof to show want of the statutory notice is on the party attacking the sale.</p> <p>4. Replevin.—The point made by appellant that the action of replevin will not lie, as appellee has only an undivided one half interest in the corn, is not well taken. There is no difficulty in the suit progressing, as both parties claim the same interest and no one else claims any interest. The interest of appellee before sale was that of a tenant, and the interest of the landlord that of a claim for rent, which is not an undivided interest but simply a lien to secure his portion.</p> <p>5. Instruction—Jury.—The modification of appellant’s instruction that the jury “need not take the law given to them by the court in its instructions to be the law, if they could say under their oaths that they were better judges of the law than the court,” was not correct. That rule only applies in criminal cases.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Geoege W. Stipp, Judge, presiding.</p>

<p>1. Return of consideration—Fraud.—The return of the purchase money is required in cases where that which was received and must be returned was the consideration of the contract of settlement which the receiver intended to make and understood he was making, and which he seeks to avoid by reason of fraudulent practices of the party which led him to agree to its terms. This rule does not apply, however, where a party holds out that he gives the consideration for one thing and by fraud obtains an agreement for another thing.</p> <p>2. Release—Plea oe payment.—The court is of opinion that the rule first announced applies in this case as Mrs. L. well knew that she was signing a release of the cause of action and that she was receiving §50 for it. It was her duty as soon as she discovered the fraud, if there was any and she desired to rescind, to return the money. The fact that there was a plea of payment could not bar appellant to insist on the return of the money unless he had asked in his instructions or in some other manner that this money should be so applied.</p> <p>3. Rescission of contract—Time.—A defrauded party must rescind as soon as circumstances permit and must not go on with the contract after the discovery of the fraud, so as to increase the injury necessarily caused to the fraudulent party by the rescission. The mere lapse of time, if it be considerable, goes far to establish the waiver of the right, and if it be connected with the obvious ability on the part of the defrauded person to discover the fraud at a much earlier period by the exercise of ordinary care and intelligence, it would he almost conclusive. It does not make any difference that the consideration for which the release was signed was money, or that the money was spent, for that may always be returned.</p> <p>■ 4 Dram Shop Act—Bond—Claim for care and attention.—A claim was made under section 8 of the Dram Shop Act for care and attention, where appellants by the terms of the bond, which was in the language of the section of the statute requiring one to be given, were only liable for “ all damages which any person may sustain either in person or property or means of support,1' by reason of appellant C. giving or selling any intoxicating liquor, etc. Held, that this does not appear to cover compensation for care and attention given to any intoxicated person while intoxicated, or the penalty of §2 per day for taking care of him after he becomes sober and while disabled on account of his intoxication.</p> <p>5. Seller liable without reference to quantity sold.—While it mn,y not he necessary to take out a license to keep a dram shop Where sales are only to be made in quantities of one gallon and over, yet the statute makes the seller of liquor responsible for damages provided by the statute, without reference to the quantity sold. The bond is in its required terms equally broad and covers all damages resulting from intoxication caused by intoxicating liquor in whatever quantities it may be sold.</p> <p>6. Instruction—Undue influence.—An instruction that “if Mrs. L. was induced to enter into the alleged settlement and to sign the paper of April 27, 1882, through the undue influence of others, and that such settlement did not express her own wishes and intention, then the paper she signed was not binding.’' Held, that this instruction was misleading and improper. Where a party has the mental capacity to contract and no fraud is used by the party with whom he contracts to induce him to enter into it, the contract must stand, notwithstanding had advice acted upon.</p>

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

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

<p>Pleading—Bukden of phoof.—Under the pleadings in this case, appellant can not recover on a charge of general negligence, nor on a claim of absolute liability arising from the destruction of the building by fire. He undertook, by his'declaration, to show that the injury was caused by a particular act of negligence known to him, and he can not, therefore, recover on proof of any other acts of negligence. As he had himself assumed the burden of pro f, he is estopped from claiming that the burden of proof to show care is on the appellees.</p>

<p>1. Promissory note—Payment.—It is the duty of a party paying negotiable paper, before parting with his money, to demand the production of the notes. Where a party fails to do this and loss occurs thereby, the law holds him guilty of such negligence as would throw the occurring loss upon, him, according to the principle that “ where one of two persons must suffer loss, he, who by his negligent conduct made it possible for the loss to occur, must bear it.”</p> <p>2. Release.—The same duty would devolve on a party who was undertaking to pay the notes, to see to it that they were actually paid before accepting a release, the validity of which he knew depended upon the payment of the notes, and this rule would apply to all parties having such knowledge.</p>

<p>1. Bastardy—Cross-examination.—Where, in a complaint for bastardy, counsel on cross-examination proposed to inqu're where complainant went, dined and passed the remainder of the day on which she said her child was begotten, and after that act, with a view to show that she had given different accounts of those matters. Held, that such proposed inquiry was properly excluded.</p> <p>2. Evidence.—Where a witness was permitted to testify that on the da,y of the preliminary examination, the defendant, speaking of the case, told him that “if they had come up and seen him, he would have had it settled and not exposed to the community,” and that defendant’s mother in his presence then said the same. Held, that as this was not an offer by way of compromise nor the recital of one as having been made, but was a voluntary statement to a stranger after the prosecution had been commenced and the time for suppression had passed, it was proper to go to the jury for what it was worth.</p> <p>3. Installments payable to clerk.—A judgment order entered which required that the condition of the bond to be given by the defendant for the support of the child should make the installments payable to the county judge, was error. The installments should be paid to the clerk of the court as now required. (Section 2, Bastardy Act.)</p>

<p>1. Injury to live freight.—Where an injury to live freight while being shipped, whether from sickness or from violence, is not the effect of any fault or negligence of the carrier in respect to the means or manner of its carriage, but is due to its own viciousness or restlessness caused by the peculiar character and propensities of the animal, or by improper loading or tying by the plaintiff himself, or to other defects originating in its vitality, the carrier is not liable.</p> <p>2. Instructions.—As the instruction given in this case implied that if the injury was the'result of violence received while in transit from Chicago to Onarga, the defendant carrier was absolutely liable, it was erroneous.</p>

<p>1. Landlord and tenant.—A tenant in possession is not estopped by his parol agreement to pay rent, or by his actual payment of it to another not in privity with his lessor, nor having any interest in the premises, under the belief that he is the proper person to receive it, to deny the latter’s title.</p> <p>2. Estoppel—Evidence.—While a tenant can not affect his landlord’s interest by accepting a lease from another, he may by accepting two leases of the same premises for the same time, estop himself from denying the title of either; yet an exception to this rule is recognized where 'the tenant already in possession under the first, accepts the second under the belief, through mistake, arifice or fraud, that the second lesser is privy in title with the first. As the evidence offered and excluded in this case tended to show; this, it was error to exclude it.</p>

<p>1. Railroad fence—Gate at crossing—Duty of company.—A railroad company is not required to patrol the line of its road to see if the gates at farm crossings are left open. Nor to keep a guard upon the road sufficient to discover and counteract such carelessness immediately upon its occasion. The company is only negligent when it has had reasonable time to discover such breach or has been notified and failed to take proper action.</p> <p>2. Verdict unsupported by evidence.—The verdict in this case is set aside as wholly unsupported by the evidence of negligence charged in the declaration. Dor the jury were here bound to find from the evidence that the proper agents of the company charged with the duty of looking after this gate as part of the fence, did look after it on the morning of the day m question and found it to be just as it should be, which would rehut the presumption, if any had been raised, that it was continuously open from the 2ud.</p>

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

<p>1. One petition for two bridges.—One petition may properly embrace two bridges if it contains the necessary averments as to each.</p> <p>2, Bridges—Highway commissioners and county board.—While commissioners of highways may determine the necessity and location of a proposed bridge and make the 'contract for its construction, and in a proper case compel an appropriation by the county board in aid of its construction, they are not in any case where they seek to compel it, empowered to determine also the particular character and price of the bridge without first giving the board an opportunity to be heard in respect thereto.</p> <p>. 8. Construction of statute.—The provision that the entire fund shall be “expended”-not only “by” but “under the joint control of” the commissioners and two persons to be appointed by the county board confers 'Upon the five ‘persons jdintly the power to determine for "what specific kind and style of bridge, as well as to whom and when the' joint fund shall be paid.</p>

<p>.1. Promissory note.—An instrument dated Oct. 25, 1875, as follows: “Whereas my niece, Mary J. Williams, has loaned me the sum of fifty dollars and performed for me sundry services and acts of kindness, and desiring to repay her at some future time when it will not embarrass -me or my business, therefore I hereby acknowledge an indebtedness to saicl Mary J. Williams of two thousand dollars with lawful interest, which sum shall be due and payable to tier at my death unless I see proper to pay the. same sooner. Delilah Deeds.’’ Held, that under the statute the instrument sued on was in form a promissory note; that prima facie it evidenced a legal and valid claim for the amount therein specified with interest according to its terms; that exclusive of the “acts of kindness,’’ the mention of which could do no harm, the consideration, as expressed, was sufficient.</p> <p>2. Promissory note for personal services.—Where a note is really given without fraud or imposition for property or services which are not of certain value fixed bylaw, market or custom, nor exactly ascertainable by comparison with others of like general character, the maker will be bound by his own estimate of it, however capricious or extravagant. Personal services are frequently of that character, justifying, by virtue of peculiar circumstances of urgency, timeliness, fidelity, result or such as address the feelings or fancy, an estimate by the party for whom they are rendered beyond the value of others of generally like kind.</p> <p>3. ' Consideration expressed in note—Competent to show there was none.—In an action' by the payee against the maker upon a note claimed to have been so given, it must always be competent for the defendant to show that although services were rendered and are expressed to be the consideration, there was really none, in that they were not rendered upon a contract express or implied, but as a kindness and without expectation of pay.</p> <p>4. Note upon several, distinct considerations.—•'Where a note purports or is otherwise shown to rest upon several distinct considerations the same defense may be made to either as if it stood alone. If a note is originally a gift in whole or in part, it will, pro tanto, be void as between the parties.</p> <p>5. Instructions.—The instructions which authorized a verdict for the full amount even if the services had been rendered without request, contract or expectation of payment, and the note given in purely voluntary remuneration for acts of kindness, were erroneous.</p> <p>6. Evidence.—No expression of feeling or intention by the maker of the note to the payee in the absence of the latter, and after the making of the instrument sued on, could be admitted to impair its validity or effect.</p>

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

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

William Beown, Judge, presiding. This action was brought by the appellee against the appellant to recover for the loss of his property by fire, upon the ground that he was insured in the appellant company.

George W. Stiff, Judge, presiding. This suit was brought by appellee to recover from the appellant the balance due for goods sold, and also for contribution from the appellant upon the ground that he was a co-surety with him upon a promissory note and had paid more than his proportionate share. The note upon which the appellee alleges he and the appellant were co-sureties is as follows: Town of Mission, La Salle County, Illinois. $500. .

<p>Ftltng of record—Application to court.—Where the record' can not bs filed within the time prescribed by law, application should be made to the court before the expiration of the time within which the law allows the record to be filed, for an extension of the time within which to file it.</p>

<p>Amendment of bill of exceptions.—Where appellee moved the court to postpone the hearing of the cause to some future day of the term, to enable him to apply to the judge who tried the same, to amend the bill of exceptions, which had been signed and sealed by the judge and filed in the office of the clerk, said application to be made to said judge in vacation time. Held, that such an amendment can only be made in term time after notice to the opposite party.</p>

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

<p>Bill of exceptions.—As there is no bill of exceptions in the record, this court must presume, nothing appearing to the contrary, that the evidence before the court- below justified its action.</p>

<p>Error to the County Court of McDonough county; the Hon. J. H. Baker, Judge, presiding.</p>

<p>1. Suit eor injury to land.—The court is of opinion that the case made by the evidence did not entitle appellee to the judgment she recovered. For at the time the cattle were permitted to run in the stalk fields and do the injury complained of by appellee, appellant was the owner of the premises in fee and entitled to the possession of the same, and appellee could not maintain trespass or case nor an action before a justice of the peace for injury to real property under the statute, since it was not her property when injured, if injured.</p> <p>2. Promise without consideration.—If appellant promised to leave the place in as good condition as it then was, the promise was made after the bond for a deed was executed and the trade consummated and was therefore without consideration.</p>

<p>Obstruction on sidewalk.—Judgment against city.—Notice to parties to defend.—Where a judgment was recovered against amunicipal corporation for permitting “ dirt, grease, molasses,” etc., to accumulate on its sidewalk, on which plaintiff slipped and fell and was injured, and prior to the trial of the cause the city caused a copy of the declaration, and a notice in writing to be served upon appellees nolifymg them to appear and defend the suit, as they would be held liable by the city for all loss, as the injury was caused by them, a.nd they did not appear, apd the city paid the judgments and costs recovered against it and brought this suit over against appellees, and gave evidence tending to prove the identity of the subject-matter of the two suits, and that appellees caused the nuisance complained of. Held, that appellees could nob be permitted to show in this suit that the accumulations were nob dangerous, and that although they were responsible for their being there, they were guilty of no negligence. It was their duty after notice by the city to defend, to interpose the defense then. Not having done so, the judgment as to these matters is conclusive upon them.</p>

<p>Abpeal from the Circuit Court .of Adams county; the Hon. S. P. Si-iope, Judge, presiding.</p>

<p>Appeal from the Giren it Court of Morgan county; the Hon. 0. Epler, Judge, presiding.</p>

<p>1. Plea puis darrein continuance.—In a plea puis darrein continuance, it is not sufficient to say generally that the defense arose after the last continuance, but the day of the continuance must be shown and also the time and place must be alleged when the matter of defense arose so that the court can see their sufficiency on the face of the plea. The plea must con-' elude against further maintaining the action and be verified under oath. As the plea in this case was wanting in all these essential particulars, the court erred in treating it as such.</p> <p>2. Demurrer.—Although the Supreme and Appellate Courts have heretofore decided that the proof in the records then before them showed that the deed was not delivered upon the execution and delivery of the rioter and mortgage by appellants, as averred in the plea, but only upon payment of the $2,100 note, this court can not assume that appellants will not be able hereafter to prove the truth of their plea. The demurrer admits its truth and the only duty of the court is to determine its sufficiency.</p>

<p>1. Power of officers of public corporation to create debt— Notice.'—In the absence of statutory authority, there is an absolute want of power in the officers of public corporations to create a debt, or liability, payable out of any other funds than those actually or potentially in the treasury. All transactions with such corporations must, therefore, be substantially upon a cash basis, and parties dealing with them must take notice of that fact. When the cash in their treasury is exhausted the commissioners have still power to issue their orders for work done, or materials furnished, but such orders can only be paid out of the revenues of that year when collected.</p> <p>2. Materials furnished commissioners for bridges—Lack of funds—Non-liability of the town.—A suit was brought by appellees against appellant, a town, to recover the price of certain materials alleged to have been sold by appellees to the Board of Highway Commissioners, to be used by them in the repair of roads and bridges in said town. The evidence very clearly showed that the claim sued for was very largely, if not wholly in excess of all moneys in the hands of the treasurer of said board, and of all taxes levied or other revenues for the year in which the alleged sales were made. Held, that the town is not liable; for the commissioners having been provided by law with the power to supply themselves by taxation with all the funds necessary to the discharge of their duly in keeping the highways and bridges of them town in proper repair and in opening and building new ones, appellees must look to that source alone for the payment of their claim.</p>

<p>1. Sufficiency of counts.—The sufficiency of each count'must he determined by its own averments and the court in determining the sufficiency of a count can not look into anything contained in any subsequent count.</p> <p>2. Contract of guaranty, pleading same.—Although a guaranty may be avoided if it has not been reduced to writing, yet in declaring upon it, it is not necessary to set out the writing, or even to aver that it was in writing. The court is of opinion that the contract of guaranty in this case is sufficiently alleged and that the demurrer to the three counts was improperly sustained.</p> <p>3. Promissory notes.—Under our statute notes payable to a person or bearer, can not be transferred or assigned by delivery only, so as to authorize the holder by delivery to sue in his own name.</p> <p>4. Pleading.—Where the liability is created by statute or where it depends upon something required by the statute, the declaration must» allege that the conditions so imposed have been performed.</p> <p>5. Indorsement of note by one not holding legal title—Not liable in action of assumpsit.—An action of assumpsit where nothing more is alleged against the defendant than an indorsement of a note for a valuable consideration, its non-payment by the maker, and the use of due diligence, or an excuse therefor, by the indorsee. Held, that if the note had come to the defendant by regular indorsement and he had assigned it by indorsement to the plaintiff so as to have enabled him to sue the maker and thus to have used the diligence required by statute, and the indorsee had done so or alleged a sufficient excuse for not doing so, the defendant would be liable upon his indorsement because the statute makes him so. But the statutory requirements are not met, when the legal title to the note and the right to bring suit upon it are still in some third person whose actions the as-ignee of the note can not control.</p>

<p>Appeal from the Circuit Court of Logan county; the lion. G. W. Hebdman, Judge, presiding.</p>

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

<p>Motion to strike bill of exceptions from files.—A motion to strike the bill of exceptions from the files and dismiss the appeal comes too late, after joinder in error.</p>

<p>Appeal from the Connty Court of Christian county; tlie Hon. V. E. For, Judge, presiding.</p>

<p>Want or proper abstract.—As the paper filed in this cause with the clerk as an abstract, is more in the nature of an argument or statement of the evidence than an abridgment of the record so arranged as to enable the court to turn readily to any portion of the record needed for reference, the court is constrained, under rule 22, to affirm the judgment for want of a proper abstract.</p>

<p>Appeal from the Circuit Court of Montgomery county.; the Hon. W. It. Wisloii, Judge, presiding.</p>

<p>1. Injury, to cattle—Omission of railroad to fence—What necessary to show.—To enable a party to recover under the statute against a railroad company for injuries to cattle resulting from omission to fence iis road, he must show that the road had been open for use six months prior to the injury complained of.</p> <p>2. Rate of speed.—There is no general law of this State which imposes any restraint as to the rate of speed a railroad company may run its trains and when not prohibited by municipal regulation, it may adopt such a rate of speed as it shall deem advisable, provided always it is reasonably safe.</p> <p>3. Where railroad required to give signal.—Where appellee’s horses were killed while on the right of way of the railroad company at the farm crossing of appellee and no whistle was blown or bell rung. Held, that at such a crossing a railroad company is not required by the statute to ring a bell or blow a whistle. Such a duty is imposed ouly where a railroad crosses or intersects any public highway.</p> <p>4. Attorney’s fees—Evidence.—The statute gives a reasonable attorney’s fee only in cases where suit is brought against a railroad company to recover damages for failure on the part of the company to erect and maintain fences on both sides of its road. The evidence in regard to the attorney’s fee in this case, instead of being general and applying to the three horses killed and the harness destroyed, not claimed to have been caused by the want of fences, should have been confined exclusively to so much of the case as was brought and prosecuted to recover damages to animals killed or injured for want of such fences.</p>

<p>Instructions—Mines.—Where, if certain alleged failures on the part of appellant to comply with the requirements of the statute in regard to mines were willful, liability attached, and if not willful, liability did not attach. Held, that it was necessary in all instructions given to keep prominently before the jury the question whether the act of appellant was willful or not. As several instructions failed todo so, the judgment is reversed.</p>

<p>Evidence.—The court is of opinion that all proper testimony should have been permitted to go to the jury to show by whom the debt to the Grand Lodge was paid, how paid, what and whose property paid it, what was the compromise under which it was paid, and who were the parties to the compromise, and the court below erred in not permitting these questions to be answered by the witnesses.</p>

<p>Guaranty—B react: of warranty—Return.—Appellant, in a letter introducing H. to appellee, guaranteed the payment of the purchase money of a sheller, if it worked satisfactorily, and in the contract between H. -and appellee, the latter warranted the machine to do goed work, and H. agreed if it did not, to return it. The machine clid not work well and H. did not return it. Held, that the liability of appellants is not fixed because they failed to return the machine on the breach of warranty.' As H. was purchasing the ma-chine for himself and was not their agent, the promise made by him to return was his personal promise, not binding upon appellants. They are only bound by their contract.</p>

<p>1. Failure to file bond for security of costs—Dismissal of suit.—Appellant, who was at the time a non-resident of the State, commenced an attachment proceeding against appellee, before a justice of the peace, without filing a bond for costs, as required by statute. A ppellee not having appeared in answer to the summons upon him, a judgment by default was rendered against him. He appealed this judgment, in due time, to the county court, and in that court,- on his motion, the suit was dismissed for want of a bond for costa. Held, that in dismissing- the suit without giving time to appellant to file security for costs, the court below erred.</p> <p>2. Same.—In all cases commenced without a bond for costs, in cases where security for costs is required, whether the case is commenced before the justice, under section 15 of the Justice of the Peace Act, or on an official bond, or to recover a penalty under the Costs Act, a motion to dismiss the suit for want of security for costs should be made, but the court should not dismiss the suit until a rule is taken on the plaintiff to file security for costs within such time as may be fixed by the court. (R. S. 1874, Costs Act, § 3, p. 287.)</p> <p>8. Jurisdiction.—(Per Higbee, J.) By taking the appeal from the judgment of the justice of the peace, the defendant submitted himself to the jurisdiction of the court to which he appealed for the purpose of disposing of his case in the manner prescribed by the statute, and on the trial of the causa, the court had no authority to inquire into the jurisdiction of the justice of the peace over the person of the defendant, nor to the right of the justice of the peace to try his case without a bond for costs, for the alleged reason that he was anon-resident when the suit was commenced, nor .to any of the proceedings had before the j ustice. The only duty of the appellate court was to hear the evidence, and if it found that the justice of the peace had jurisdiction over the subject-matter of the suit, to dispose of the case upon its merits.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zank, Judge, presiding.</p>

<p>Appeal from the County Court of Morgan county; the Hon. M. T. Layman, Judge, presiding.</p>

<p>Appeal from the Circuit Court of "Vermillion comity; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Answer in chancery—Proof.—Allegation set up in answer, not responsive to the hill, to be availing must be sustained by affirmative proof.</p> <p>2. Chancery practice.—A defendant is bound to apprize a plaintiff, by his answer, of the nature of the case he intends to set up, in a clear and unambiguous manner, and a defendant can not avail himself of any matter in defense which is not stated in his answer, even though it should appear in his-evidence.</p> <p>3. Evidence.—Where appellant was entitled to a decree, unless some affirmative matter in avoidance set up in the answer was sustained by a preponderance of the evidence. Held, after an examination of defendant’s evidence, that even if it were based upon a sufficient answer, it falls far short of affirmatively establishing either a want of consideration or that any mistake was made in ascertaining the true state of accounts between the parties at the time the note was given.</p>

<p>Appeal' from the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.</p>

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

<p>1. Injury on railroad platform—Liability.—If a railroad company sets a passenger down upon a platform used by it in common with another company at their intersection, and while such passenger is preparing to take passage on the other road, he receives an injury by reason of some carelessness in providing proper safeguards or lights, he is not bound to inquire into the ownership of the platform, but may proceed against the company that brought him there and set him. down upon the platform.</p> <p>■ 2. Argumentative instruction.—The first instruction is argumentative in that it calls special attention to certain alleged facts which are, in themselves, only circumstances calculated to throw light upon the transaction, and not material to the action. The right of action is not in any manner affected by the circumstance that the accident occurred in the night rather than in the day time, if in other respects a cause of action is shown.</p> <p>3. Instructions—Duty of’the court and jury.—It is incumbent upon the court to declare as a matter of law, the rule of duty which shall govern persons and corporations in their transactions with each other, and not to leave it to the jury. It is then the duty of the jury to determine from the evidence whether the rule has been violated to another’s injury.</p>

<p>Appeal from the Circuit' Court of Adams county; the lion. J. H. Williams, Judge, presiding.</p>

<p>Lease—Partners—Apportionment of rent.—Where a lease of a right to excavate certain coal beneath appellee's premises was made to a mining firm of which appellee was a member, and the premises were abandoned before the term was up and appellee sued for the rent. Held, that appellee's share in the firm is chargeable with its ratable proportion of the rent. If the company has in its possession money or other assets sufficient to pay Ihe rent, appellee should be paid from that source; but if the company has no assets to pay the same, then each partner should cbntribute toward the same in proportion to his share in the firm. The decree of the court below is reversed, as it compels eleven of the partners to pay a larger sum than the evidence justifies.</p>

<p>1. Chancery practice.—The general rule, that the evidence must be in the record at the time of rendering and filing the decree, has been enlarged so as to permit (he court to exiend the time for filing a certificate of evidence, in analogy to the rule which prevails in regard to a bill of exceptions. Since the statute allows oral evidence to be taken before the court upon the hearing, the same strictness in regard to the manner and time of incorporating the same into the record should prevail in chancery as in law.</p> <p>2. Certificate of evidence.—Where it was the duty of defendants in error to preserve the evidence in the record, and having failed to have the certificate of evidence as to solicitors’ fees signed in term time, it devolved upon them, when challenged, to produce their authority to have it signed at a subsequent date, and this they failed to do, and there was no evidence to justify the .action of the court below in signing this certificate at the August term. Held, that said certificate of evidence forms no part of the record in this cause. It was an attempt'to add to the record something that had never been there, and for the insertion of which no right had been reserved.</p>

<p>1. Certificate of cleric to record—Seat,.—Unless the certificate of the clerk of the court appealed from to the record, is under the seal of the court, the cause must be stricken from the docket.</p> <p>2. Application to file additional record.—Where a record of a case was filed in due time, but when the record was filed, the certificate of the clerk of the court appealed from was not under the seal of that court, and upon discovering (his, appellant, on the fourth day of the term, applied for leave to file an additional record. Held, that the application came too late, and appellee’s motion to strike the cause from the docket must be sustained.</p>

<p>1. Objectionable matter in counsel’s argument.—Where in a' suit brought against a railroad company for an injury received b.y appellee's intestate, appellee’s counsel in his argument read to the jury an article, intended to cast a stigma upon all railroads on account of a fancied recklessness in caring for the lives of their employes. Held, that this was clearly improper as an item of evidence and improper to be read to the jury for any purpose. The fact that it was read as a part of the argument of counsel, could not purge it of its objectionable character.</p> <p>2. Duty of presiding judge.—While it can not he expected that a presiding judge will exercise such a strict supervision over the arguments of counsel as of his own motion to check every irregularity, yet when counsel attempt to abuse their privileges to the prejudice of the opposing party, it is error for the court not to exercise its discretion when called on.</p> <p>3. Result of former trial.—It is generally not in order (o attempt to bring before the jury the result of any former trial in the same case.</p> <p>4. Professional ethics.—Briefs should be respectful to the court, the parties and all persons named in them. Briefs filed in this court containing offensive language will be promptly stricken from the files.</p>

<p>Jurisdiction—Administration of estate.—Where the only object and purpose of a bill was to compel the executors of a will to pay to plaintiff in error a legacy to which he alleged he was entitled under the terms of the will, and there was nothing in the bill justifying an application to a court •of equity, and the decree recited s hearing on the bill, answers, etc., and then dismissed the bill at complainant’s costs. Held, that the court erred in retaining jurisdiction until final hearing. The decree is reversed with directions to the court to dismiss the bill at complainant’s costs without prejudice.</p>

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

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

<p>Common carrier—Need not give notice of arrival of stock.— It is not the duty of a common carrier to either deliver stock to the consignees, or to give them notice of its arrival. Its obligation as a common carrier ceases when it has delivered the stock at its place of destination, and unloaded it from its cars. Its only duty then is to store the stock in a proper place, to see that it is properly cared for and to deliver it on demand to the shipper or his consignees.</p>

<p>Appeal from the Circuit Court of McLean county, the Hon. R. M. Benjamin, Judge, presiding.</p>

<p>Appeal from, the Circuit Court of Sangamon county; the Hon. O. S. Zane, Judge, presiding.</p>

<p>1. Instructions—Sale op intoxicating liquor.—As the instructions upon the sale of intoxicating liquor were not founded upon the evidence and assumed material facts to be proved, they were erroneous.</p> <p>2. Circumstances attending accident.—As there was nothing in the circumstances attending the accident in this case to justify the court in calling special attention to the circumstances by an instruction, much less to authorize the jury to find therefrom that the cow was vicious and accustomed to hook, notwithstanding the evidence to the contrary, it was error.</p>

<p>1. Common carrier—Right op consignor to sue.—Whether the consignor retains any property in the .goods or not, if the contract for the transportation by the carrier is with him, he may maintain the action upon such contract in his own name for the failure safely to carry and deliver to the consignee, but the recovery in such case will be for the benefit of the consignee, if he was the real owner of the goods. And the fact that the hill of lading states, in this case, that the corn was to be delivered “ on account, of Fallís,” does not render it any the less the contract of the parties making it.</p> <p>2. Judgment—When conclusive.—A suit may he ma’ntained against a common carrier in the name of any one having either a general or special property in .the goods, and an action properly instituted by any one having such a right of action will be a bar to any subsequent suit against the c irl-ier at the suit of another party having- either a general or special property in the same goods; but no such judgment can be effectual as a bar unless the plaintiff in the first suit had a right of action to recover the same damages sued for in the second suit.</p> <p>L 3. Carrier voluntarily assuming liability.—While appellant’s road was so far under the military control of the government at the time the grain in question was shipped, that it was not liable as a common carrier, unless it voluntarily assumed that responsibility, yet, if the company thought proper, notwithstanding this control, to receive freight and issue its bills of lading for the same without containing any exception as to the governmental control, it thereby voluntarily assumed the duties of a common carrier, and would be subject to the liability attaching to that function.</p> <p>4. Written contract—Verbal evidence inadmissible.—The contract of shipment sued on, can not be altered or changed by any previous verbal agreement of the parties not incorporated into it. Except in the recital or the acknowledgment of the goods and of their quantity and the condition when received, bills of lading are strictly written contracts between the parties, and come within the general rule which prohibits the introduction of parol evidence to contradict or vary written contracts.</p> <p>5. Liability op carrier.—Appellant was not relieved irom its obligation to deliver the corn in what would, ordinarily, he a reasonable time, because of the extraordinary state of circumstances then existing, since all the facts were as fully known to the carrier at the time it assumed the responsibility, as they were afterward.</p> <p>6. Same—Perishable prhgkht.—While it is true that the corn would perish from its own tendency to decay when shipped in the manner described, if kept in close cars long enough, appellant can not escape liability on the ground of inherent decay, since it is certain from the evidence, that it would not have been damaged from this cause, had it been delivered within a reasonable time.</p>

<p>Negligence.—The court is of opinion that appellee has failed to establish negligence on the part of appellant, in the faulty construction and maintenance of the bridge which fell and injured him, and in running its trains at a high rate of speed over a part of its track that it was its duty to have known was in a dangerous condition.</p>

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

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

<p>Error to the Circuit Court of Edwards county; the Hon. '0. 8. Conger, Judge, presiding.</p>

<p>1. Attorney and client—Contract for contingent eees.—Appellant, February 3, 1877, contracted in writing with appellee to act as its attorney in defense of certain suits relating to bonds, and for his services was to receive $500 as retaining fee, and an additional fee of seven and one half per cent, upon the amount of the bonds, “ in the event the county shall not be obliged to issue said bonds.” It was also agreed, that “if any compromise is made without the consent of said Millard, he shall be entitled to seven and one half per cent, on the whole amount of bonds claimed, and such percentage shall he due when the validity of the bonds is determined in favor of said county.” The contract was made when a mandamus was pending to compel the issue of the bonds. Held, that the contract was not ultra vires, and was not contrary to public policy.</p> <p>2. Right to recover, "when prevented by board prom complying with contract.—On February loth a judgment in the mandamus suit was entered against the county, and on the 28th of same month the board of supervisors, at their meeting, resolved that it would be unwise to prosecute the case further by appeal. At this time, the plaintiff in error and olher attorneys at law were urging the board to appeal, and the case was then ready for appeal. Held, that this action or want of action by the board put it out of the power of plaintiff in error to comply with his contract, and he is in law entitled to his fee the same as if he had fully complied with the contract.</p> <p>3. Preponderance op evidence.—Although there is some testimony tending to show an abandonment of the contract by the plaintiff in error, the manifest preponderance of the evidence is that he was ready, able and willing to comply with his contract.</p>

<p>/'Burden of proof—-Instruction,—Where an instruction required appellant to prove that the accident complained of did not result from the failure on the part of appellant to cause the bell to be rung or the whistle sounded. Held that this instruction was improper, as it changed the harden of proof and required appellant to prove a negative.</p>

<p>Evidence.—While the possession of the notes in question by the administratrix of the payee is prima facie evidence that they have not been paid, yet, taking all the evidence and circumstances in the case into consideration, the fact that the payee was in limited financial circumstances, that appellant was perfectly solvent, and might have been compelled to pay the amount due on the notes at any time after maturity, and that the suit was not begun until nearly five years after the last note became due, the court is of opinion that the prima facie case made by appellee is manifestly overcome.</p>

<p>1 1. Husband and wife—Inequitable decree.—Where a decree gave to the wife the entire property of the husband, and required her, if anything was left after the payment of taxes, and the support of herself and children, to aid the husband “in case of sickness or inability to support himself by manual labor.” Held, that there is neither justice nor equity in thus depriving the husband of the benefit of his estate. If the husband is insane it is monstrous to do so; if he is not insane and has failed to take proper care of his wife, and his conduct has been such as to justify her in asking a separate maintenance, the court is unable to see why he should be deprived of his whole estate.</p> <p>2. Conservator of a lunatic.—If by the decree it is intended to make the wife the conservator of her lunatic husband, and therefore give her the control of his estate, it is manifestly erroneous in not providing that bond and surety shall be given, and not complying with the provision of the law generally in such cases. Even if a chancellor in this State has the power to appoint a conservator for a lunatic, some security at least should be required of the conservator.</p>

<p>1. Administration or estate—Allowance made bt appraisers.— The allowance made by the appraisers in this case is treated by the court as a claim against the estate and placed upon the same footing as other claims. But whether it may be regarded as an ordinary claim against the estate or not, can make no difference, because the order of the court approving the report of the appraisers is such an exercise of judicial functions that an appeal will lie from it.</p> <p>2. Judgment to which administrator is a party—Upon whom conclusive.—The administrator is the sole representative of the personal estate of. the deceased. A judgment to which he is a party regularly obtained, in the absence of fraud or collusion, binds the estate to the extent of the personal property and is conclusive upon all claimants of the personalty.</p> <p>3. Right op appeal.—If a creditor is dissatisfied with a judgment against the estate, he must appeal, and it can not he said he is not in court, because he is there by his representative, the administrator, and the creditor must take notice or use such ordinary diligence as may be necessary to inform himself of the condition of his claim and the estate.</p> <p>4. Failure to resist judgment in time.—Where a creditor failed to resist the payment of a widow’s allowance at the time the judgment was entered and he did not appeal in the time prescribed by the statute. Held, that it was too late to resist such claim upon a final settlement, and the fact that no notice of such final settlement was given.the creditor can not be urged as a reason why a bill in equity may be maintained now.</p> <p>5. Want op parties.—Where the record showed that thirteen persons other than appellee had probated claims and obtained judgments against the estate of equal force with that of appellee. Held, that appellee should have made these creditors parties to the suit. Appellee by doing so would not lose whatever rights or preferences he might have by being diligent any more than if each of the remaining creditors had interpleaded as they had a right to do.</p> <p>6. Chancery jurisdiction—Administration op estates.—A court of chancery may, in the exercise of its general jurisdiction take upon itself the administration of estates. In doing so it will take the entire administration into its hands and administer the estate as provided in the statute, modified in some cases by the principles of equity. But such jurisdiction will not be taken except in extraordinary cases.</p>

<p>Error to the Circuit Court of Madison county.</p>

<p>1. Trespass for killing dog.—Where a dog without any provocation assails a man upon the public highway, and is killed by the man in self-defense, the act of killing is justifiable, although theretofore.the dog may not have been regarded as ferocious, and may not have been accustomed to attack persons.</p> <p>2. Evidence.—The exclusion from the jury of the evidence offered by appellant, of the had habits of the dog, other than those involved in the plea of justification, was error. Such testimony was admissible, not in bar of the action, but in mitigation of the damages to he considered by the jury in assessing the value of the dog.-</p> <p>3. Instructions.—Instructions which are argumentative are improper.</p>

<p>Error to the Circuit Court of Richland county; the Hon. William 0. Jones, Judge, presiding.</p>

<p>1. Statement.—William and Deborah Cool were married in 1859. In 1874 they mortgaged their farm and dwelling house, Deborah releasing her homestead and dower right. After the death of the husband in 1877, the mortgage was foreclosed and the land decreed to be sold. Jackman was appointed receiver to collect rents, etc. The purchase price together with the rents was more than sufficient to satisfy the decree. The rents were for the period between the date of the husband’s decease and the expiration of the time of redemption. During this period the widow occupied the dwelling-house, etc., free of rent. The question at issue was to whom the receiver should pay §1,659, the surplus of the rents.</p> <p>2. Construction on statute.—Section 27 of the Dower Act of 1845 gave no right of dower other than that provided in section 1 of said act. It merely afforded an additional remedy to enable the widow to enforce the right of dower already conferred by said section 1. As the section only affected the remedy it was competent for the legislature to repeal it at any time.</p> <p>8. Dower—Assignment by heirs.—It was error for the court below to decree the whole of the surplus rents in the hands of the receiver to be paid to the widow. If no demand for the. assignment of her dower was made by the widow, then appellants, the heirs at law, are entitled to the whole of the rents. But if, as the decree finds, she filed a petition for such assignment of dower against appellants, then that was a sufficient demand to give her a claim on one third of whatever rents have accrued since that time as damages.</p> <p>4. Charging trustee interest.—As the evidence shows that the receiver has used the rent money received by him in his trust capacity, in his own business, it was proper for the court below to charge him interest.</p>

<p>1. Contract with railroad to locate road.—A written agreement entered into by twenty parties with a railroad company to furnish the said railroad company the right of way through a certain county for the construction of their railroad in consideration that the company would locate said road on a certain line. Held, that as this contract was entered into by the railway company itself and for its own benefit, and the land to be procured was to be used in locating, constructing and operating its road, it is not void as against public policy.</p> <p>2. Contribution.—Where there is a joint legal liability resting upon all the parties to an agreement, parties to the agreement, either with or without suit and legal compulsion, may pay and hold the persons bound with them by the contract responsible to them to the extent of their advances for such joint contractors.</p> <p>3. Same.—As to the objection that the bill was filed too soon, the court is of opinion that it would seem upon equitable principles the bill should be maintainable, for it would be a harsh rule for a court of equity to enforce, that parties who had already paid more than their just proportion of a debt should be compelled to pay all the residue before they could have relief.</p> <p>4. Objection made too late.—The objections that the corporation was not a necessary or proper party to the original bill, and that its claim set up in the cross-bill was purely a legal claim which could be enforced in a suit at law comes too late now after the causes were heard on their merits in the court bolov without demurrer or objection.</p>

<p>1. Practice—Amendment of return.—When a service has been properly made, but through accident or inatlention the proper return has not been indorsed, the furtherance of justice requires that proper amendments should be allowed.</p> <p>2. Attachment—Lien.—The levy of an attachment to the extent of its lien diminishes the. property of the defendant; it does not take away Ms power to transfer or dispose of it, but such transfer will be subject to the lien of the attachment or appropriation, not only for the benefit of the plaintiff in the writ levied or served on a debtor as garnishee, hut by relation back for the common and equal advantage of all creditors who may avail themselves of the statute.</p> <p>3. Same—Liens relating back to first attachment writ —When judgments are obtained in conformity with the provisions of section 37 of our attachment law, the lien on property, or appropriation by the law of the indebtedness, as to each and all of the several judgments, has relation back to the date of the levy or garnishment on the first attachment writ.</p> <p>4. Certificate of publication.—The statute has given no special form for the certificate required by the clerk; and the certificate in this case is in substantial compliance with the statute.</p>

<p>1. Appointment op guardian.—By our statute it is only in the that a minor is a non-resident of the State that the element of an estate or property is essential to give jurisdiction to a court to appoint a guardian.</p> <p>2. Same.—Where it was evident from a will that the primary object of the testatrix was the suitable maintenance and education of her niece, a minor, and that it was her intention that the endowment of a high school should be subordinated to that object and there was an inclination on the part of the trusiees of the fund to subordinate the welfare of the child to that of the proposed high school. Held, that it was fitting a guardian should be' appointed to protect the child’s interest, but it was error to appoint one of said trustees as such guardian.</p>

<p>Appeal from the Circuit Court of Monroe county; the Hon. Amos_Watts, Judge, presiding.</p>

Clair county; the Hon. Amos Watts, Judge, presiding. This was a suit in trespass brought by plaintiff in error against defendant in error to the February term, 1882, of St Clair county Circuit Court. The declaration contains two counts.

<p>Error to the Circuit Court of Richland county; the Hon. William O. Jones, Judge, presiding.</p>

Amos Watts, Judge, presiding. The appellee, Miller, and the appellants, Henry Thimming and Charles Thimming, upon an alleged promise that if the plaintiff would sign a written agreement consenting to the discharge of said Charles Thimming in banlrmpcy without requiring the bankrupt’s assets to be thirty per cent, of the claims proved against his estate the defendants would pay plaintiff a sum of money equal to thirty per centum upon all the claims allowed against the estate…

<p>Error to the Circuit Court of Lawrence county; the Hon. William 0. Jones, Judge, presiding.</p>

<p>1. Supervisor as overseer op the poor—Quantum meruit for services.—A county is not liable on a quantum meruit for services rendered under the requirements of the law, by a supervisor in his ex officio capacity of overseer of the poor for his township.</p> <p>2. Construction of statute.—Such a claim for services is not warranted by section 26, Ch. 107 R. S. And this view is strengthened by'a consideration of section 18 of the same statute.</p>

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

<p>Verdict against evidence.—As the verdict in this case is manifestly against the evidence as well as the instructions of the court, the case is reversed and remanded.</p>

<p>Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.</p>

<p>1. Bill of exceptions.—As there is no bill of exceptions in the record, the court can not pass upon the rulings of the court below in admitting the evidence in question.</p> <p>2. Personal judgment against administrator.—Where one sues as an administrator and it does not appear in the record that he has made himself liable to pay costs, it is error to render a personal judgment against him. The judgment should be against him in his representative character.</p> <p>3. Error in form of judgment—Practice.—As the error in question relates merely to the form of the judgment, it will, according to the practice in such cases, be corrected and the proper judgment rendered in this court.</p>

<p>1. Jurisdiction.—A petition for a ‘mandamus to compel a village to levy and collect a tax to pay three judgments rendered against the village in certain condemnation proceedings for the opening of a street. Held, that the proceeding does not “relate to the revenue ” within the meaning of the Appellate Court Act and is therefore within the jurisdiction of this court.</p> <p>2. Mandamus—Municipal corporation—Necessary averments. —Where it is sought to coerce a municipal corporation into the doing of an act, the party applying must show not only a clear legal right to have the thing done, hut he must show affirmatively that the corporation has the power and that it is its duty to do the act in the manner sought. Held, that as the petition for a mandamus in this case did not set forth the ordinance, or so much of it as was necessary to show that compensation for the property taken was to be made by the collection of a general tax, it was subject to demurrer.</p> <p>3. Ordinance.—The ordinance is the foundation upon which all subsequent proceedings .are based, and an ordinance which should fail to prescribe the mode of making compensation would be void, and all proceedings under it a nullity; and when the ordinance prescribes the mode, neither the hoard of trustees, nor their successors in office, can resort to any other words in subsequent proceedings under the same ordinance. (Act for the Incorporation of Cities, Villages and Towns, Article 9, §§ 1; 2, 3.)</p> <p>4. Construction op statute.—The provisions of Article 9 of the Act for the Incorporation of Cities, Villages and Towns, apply to and must control in proceedings for opening streets and making compensation for property taken or damaged thereby in cities and villages incorporated under the general law, and the proceedings therein prescribed are exclusive of any other mode.</p>

<p>The judgment in this case is reversed, upon the grounds stated in Village of Hyde Park v. Thatcher, ante, 613, the principal question arising upon the record being the same in this case as in that.</p>

Kirk Hawes, Judge, presiding. This suit was brought by Gross in the court below, against the railroad company, to recover damages for personal injuries received by them in a collision of a train of the latter, with a hand-car which the foreman and one Hefferman had been running ahead of such train, on the same track, and which they were endeavoring to get off the track at the time of the collision.

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

John G. Rogers, Judge, presiding. This was assumpsit, brought by the defendants in error against the plaintiff in error, defendant below, to recover for commissions alleged to be due to the defendants in error, on the purchase by them for the plaintiff in error of 5,000 bushels of wheat, and for losses sustained by them through the failure of the plaintiff to furnish margins for their protection in the purchase and sale of the wheat.

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

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

<p>1. Necessary to plead statutes op other States.—Courts of this State do not take judicial notice of the statutes of other States, but those statutes, when material, must be pleaded.</p> <p>2. Demurrer.—Where in an interpleader the only allusion to the laws of Pennsylvania, under which appellees claimed to be appointed trustees of a certain estate, was the mere conclusion of the pleader that the appointment- of appellees as trustees was in accordance with the statutes of that State, but the statutes themselves were not set out, nor was anything shown from which it could be determined whether that conclusion was in accordance with the fact or otherwise. Held, that the demurrer to such inter-pleader should have been sustained.</p>

<p>As the decision of the court below is in conflict with the rulings in Boynton v. Ball, 105 111. 67, and McLaughlin v. MacLachlan, 12 Bradwell, 631, the cause is reversed and remanded, with instructions to the court below to vacate the order recalling and quashing the execution, and staying proceedings thereunder.</p>

John Gf. Rogers, Judge, presiding. May S, 1882, appellee’s house was being moved westward on Twenty-sixth street, in the city of Chicago, by one Stevens, a licensed house-mover.

Elliott Anthony, Judge, presiding. This is an appeal from an order of the Circuit Court of Cook county, allowing a credit of $1,600, ón a judgment previously rendered in that court against appellee in favor of appellant There is no dispute about the facts, which are substantially as follows: Appellant recovered a judgment against appellee in said circuit court, March 15, 1881, for the sum of $4,450.

Joseph E. Gary, Judge, presiding. This was case, brought by plaintiff in error against defendants in error, to recover damages alleged to have been caused to plaintiff’s land by the erection of dams and dikes across and along the Desplaines river near plaintiff’s land, whereby the natural flow of water was obstructed and caused to overflow plaintiff’s land.