Volume 14 — Illinois Appellate Court Reports

<p>I. Pleading. — Averments in a special plea of knowledge in the plaintiff, before and at the time he became assignee of a certain note, of facts showing a total failure of consideration of the note, not traversed by the plaintiff, must be taken as admitted.</p> <p>> 2. Negotiable instrument — Failure or consideration. — If, without actual fraud, there is a want or failure of consideration of a note which would operate as a defense if the transferrer had sued, the transferree, chargeable with notice or knowledge thereof, is open to the same defense, if it he not accommodation paper.</p> <p>3. Sale — Condition, precedent. — Where the subject-matter of a sale is not in existence or not ascertained at the time of the contract, an engagement that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty but a condition, the performance of which is precedent to any obligation upon the vendee under the contract.</p> <p>4. Same. — Where the real character and qualities of certain shares were unascertained at the time of the sale, and they were offered and sold by the seller and purchased by the buyer as of a description giving them another and different character and quality, and they did not turn out to be of such description or quality, but worthless or not marketable by the name, denomination, or description by which they were sold and purchased. Held, that a condition precedent of the contract of sale was unperformed.</p>

Josn V. Eustace, Judge, presiding. This was an action on the case, brought by appellee, Eitemiller against appellant, the First National Bank of Lanark, to recover for an injury to his person, occasioned by falling into an opening in the sidewalk adjoining appellant’s building, which opening is alleged to have been negligently left uncovered and unprotected by appellant.

William H. Baknum, Judge, presiding. This was an action of trespass brought by Robert H. Fish against Jacob Beidler and four others for… Held: as if a tenant willfully hold over after the termination of his lease, this will not justify even the owner of the property in entering and taking possession forcibly against the will of the person in possession, unless the person so entering has legal process or license-and authority as above stated. 3. “ The jurors are instructed…

<p>1. Jurisdiction — Pinal judgment. — Where an action, of replevin was brought in 1878, and defendants entered their appearance and entered a motion to quash the writ for want of sufficient affidavit, and plaintiff at the same time entered a cross motion for leave to amend such affidavit, and these motions were continued and nothing done by the court until 1882, when the suit was dismissed by the court for want of prosecution, and judgment de retorno and for costs was given against plaintiff. Held, that such judgment of dismissal, etc., was a final judgment, and when the term at which it was rendered had elapsed the court below had no power or authority to $et aside the judgment and re-instate the cause.</p> <p>2. Re-instating a cause — Notice.—Where no notice had been given defendants of a motion to set aside a former judgment and re-instate the cause and no plea had been filed by defendants, it was error for the court, in the absence of defendants and their attorney, to impanel a jury to try the issues between the parties.</p>

<p>1. Trusts — Concurrent jurisdiction. — Where money is sought to be recovered from one as trustee, the fact that the cestui que trust has a remedy at law by action for money had and received, will not deprive a court of chancery of jurisdiction.</p> <p>2. Same. — Where it was admitted by the bill that complainant, as the holder of a portion of a mortgage debt purchased of the mortgagee, was en« titled to the benefit of the mortgage security, and to share in the proceeds of the mortgage sale and, after deducting the costs and expenses of sale and such disbursements as the mortgagee had made under the stipulations in the mortgage, the residue of said proceeds constituted a fund in the hands of the mortgagee to he applied by it to the payment of the mortgage debt. Held, that complainant has a right to recover against the mortgagee a money decree for his distributive share of the net proceeds; that the mortgagee in executing the power of sale and in receiving and distributing the proceeds of the mortgage security was the trustee of an express power, and especially was this the case after it had transferred to an assignee a portion of the mortgage debt.</p> <p>3. Demurrer. — Where the fact that a debt sought to be collected is barred by the Statute of Limitations appears on the face of the bill, advantage may be taken of the bar on demurrer.</p> <p>4 Statute oe Limitations — Ron-resident corporation. — A corporation must dwell in the place of its creation, and can not migrate to another jurisdiction. Where it appeared upon the face of a hill that, while complainant’s cause of action arose more than five years before the commencement of the suit, yet the defendant corporation, at the time the cause of action arose, was, and ever since that time had been, a non-resident of the State. Held, that the Statute oí Limitations did not run.</p> <p>5. Same — Doing bdsiness by agents. — While a corporation created in one State, which has been continuously doing business in another State by its agents for years, will bring itself during all that time within the jurisdiction of the latter State, yet as there is no legal presumption that this corporation was in this State by its agents in such a manner as to enable it to avail itself of the bar of the Statute of Limitations, nor does such fact appear by the bill, the court is of opinion that its absence is sufficiently alleged to bring the case within the exception in the statute. .</p> <p>6. Express trust. — Where money sought to be recovered is held by the defendant as trustee of an express trust, the Statute of Limitations can not commence to run until the trustee disclaims the trust, or assumes a position adverse to the complainant.</p> <p>7. Laches. — Mere laches alone, short of the period fixed by the Statute of Limitations as a bar, will not preclude the assertion of an equitable right where the adverse party is not lulled into security by the delay, or prejudiced thereby.</p> <p>8. Chancery practice. — Relief which is consistent with the facts stated in the bill will be granted under the general prayer, although not specifically prayed for.</p>

<p>1. Agency — Principal unknown — Obligation.—Where defendants had no acquaintance with, or knowledge of, the principal, a real estate broker, and they employed his agent to make a purchase for them, making a special contract with the agent as to services and compensation. Held, that inasmuch as the defendants, when they discovered that the plaintiff was the principal, could have held him responsible upon the contract which they made with his agent, the law would raise a reciprocal obligation on their part to respond to the principal on the same contract, subject to any equities arising in their favor before the discovery.</p> <p>2. Right op principal to sub. — The right of the principal to sue in such case is paramount to that of the agent, and in cases where either may bring action, the former, by giving notice to the other contracting party, puts an end to the agent’s right of action, except where the agent has a lien upon the subject-matter of the action equal to the claim of the principal.</p> <p>3. Trust and confidence in agent.— The same rules of law announced above, apply where the contract with the agent involves personal trust and confidence as in other cases.</p> <p>4. Notice bt principal; — Where a check for commissions was given by defendants to an agent, and notice was served upon them by the plaintiff that he claimed the amount due, as principal, in ample time for defendants to stop payment on the check. Held, that, by giving the check defendants recognized the amount as clearly due from them, and let it he paid at their peril, and there is therefore no equity in their favor from that circumstance.</p>

Kirk Hawes, Judge, presiding. This action was brought in the court below, August 16, 1880, by Cole, as the assignee of the payees, against Humphrey and Parmenter as the makers of the instrument of which the following is a copy: “ $1,389.91. Pock Island, Ill., April 21, 1857.

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

<p>1. Dismissing appeal — Absence oe transcript. — A circuit court has no jurisdiction to dismiss an appeal, without the consent of the appellant, in the absence of a transcript from the justice.</p> <p>2. Jurisdiction. — Such jurisdiction is not acquired by ruling the appellant to file the transcript within a certain time, so as to authorize the court to dismiss the appeal for non-compliance with such rule.</p>

Joseph E. Cary, Judge, presiding. This was an action of assumpsit by appellants against appellee, to recover an over-draft of $191.95, made on them by appellee, and by them paid. Appellants were commission men, doing business in Chicago, and appellee is the proprietor of the Leavenworth Woolen Mills, at Leavenworth, Kansas.

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

the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding. This suit was by Clifford against Drake, for an alleged libel charged to have been published by defendant, Dec. i, 1879, in the Chicago Sunday Times, reflecting upon the capacity and integrity of plaintiff as an architect, and thereby causing special damages.

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

Elliott Akthobt, Judge, presiding. This action was brought by Litchfield & Eaton, of Boston, Mass., against Nelson Morris, of Chicago, upon the common counts in assumpsit for goods sold and delivered, upon the common money counts and upon an account stated.

Elliott Anthony, Judge, presiding. This was a suit for malicious prosecution, brought by appellee against appellant. The cause of action, as set out in the declaration, was the arrest of the appellee, at the instigation of appellant, on a charge of secreting certain personal property on which appellant had a chattel mortgage, executed by appellee to secure the payment of money loaned to her by appellant.

Elliott Anthony, Judge, presiding. „ The appellee, Pierce, brought this suit against appellants, Morey & Snow, for alleged fraudulent misrepresentations as to the sanitary condition of house No. 474 Randolph street, Chicago, by means of which she was induced to sign and seal a lease for said house as lessee, May 19, 1882, tor one year from that date, at the yearly rent of $684 to be paid in installments as follows: $60 at the execution of the lease for one month’s rent in…

William H. Baknum, Judge, presiding. In this case, a judgment in favor of Elias Lowitz, the plaintiff, and against Samuel I. Pope and Charles H. Batten, the defendants, for $1,550 and costs, was entered by confession upon a cognovit and warrant of attorney, and afterward, on motion of the defendants, proceedings on said judgment were stayed, and leave was given to the defendants to plead.

Hollín S. Williamson, Judge, presiding. The appellee, Wheeler, on and before Hov. 30, 1882, was in the occupation of-the lower floor of store Ho. 203 Lake street, Chicago, and carrying on there the business of leather merchant, having a stock of leather goods in said store, while the appellant corporation occupied the entire floor above appellee’s store for its business, both parties holding separately as tenants of the same landlord.

J oseph E. Gaby, J udge, presiding. This is an appeal from a judgment for $50,000, recovered by appellee in the court below in an action on the case, for damages alleged to have been done to appellee’s property by the construction of a viaduct by appellant on Polk street in said city.

John G-. Rogers, Judge, presiding. This was an action in the court below, by Bingenheimer against the Chicago and Western Indiana Railroad Company, to recover damages for a personal injury alleged to have been occasioned by the negligence of the defendant’s servants in suddenly, and without any notice to plaintiff, starting a certain car backward, while plaintiff was in the act of going onto said car for the purpose of performing therein his duties as car cleaner, which he…

John Gf. Rogers, Judge, presiding. This action was brought by Dignan against the city of Chicago, to recover damages for a personal injury to him, occasioned by the negligence of the city in not keeping Monroe street in good repair.

Joseph E. Gaby, Judge, presiding. This action was trover, by David Dows & Co. against Mc-Cleary, Smith & Co., to recover the value of eight car loads of corn.

Rollin’ S. Williamson, Judge, presiding. This was assumpsit brought by the La Salle Rational Bank as indorsee and holder of a bill of exchange, alleged to have been drawn by the He Steiger Glass Company on the Tolu Rock and Rye Company, and accepted by the latter. The instrument was as follows: : $825.00. “Office of De Steiger Glass Company La Salle Ill. Dec. 13, 1882.

<p>1. Pleading — Statute of Limitations. — Action of assumpsit for money had and received. Defendant’s second plea was the Statute of Limitations, to which plaintiff pleaded a special replication seeidng to avail himself of the provisions of section 22 of the Statute of Limitations. Plaintiif’s claim was that he paid, the money in controversy to defendant to obtain the release of a certain deed of trust on land which he had recently purchased, in ignorance of the fact that it had already been paid to the defendant and satisfied in full, and that the fact of such previous payment was fraudulently concealed from him by the defendant at the time the money was paid and since, by reason of which he remained in ignorance, etc. Defendant urged that the replication failed to show that there was any defense to the trust deed. Held, that this point is not well taken. By the plea of the Statute of Limitations, plaintiff’s cause of action stands admitted, and the only office of the replication is to avoid the bar of the statute by bringing it within an exception to such statute and as plaintiff's replication sufficiently alleges'a fraudulent coneealnjent of his cause of action, the court below erred in sustaining the demurrer to it.</p> <p>2. Fraudulent concealment op cause op action — Statute op Limitations. — A replication to a plea of the Statute of Limitations, setting up a fraudulent concealment by the defendant of the cause of action, must set out the facts and circumstances constituting the fraud, and must show further that there has been no want of reasonable diligence on the part of (he plaintiff in discovering the cause of action; must disclose the time when, and circumstances under which the discovery was made. But it is not essential that the acts constituting the fraudulent concealment should be subsequent to the accruing of the cause of action. They may be coincident with or even prior to it, provided there is the relation of design and its consummation.</p>

Elliott Anthony, Judge, presiding. This was an action by appellee, Appel, against the appellants, Kappes & Eggers, upon a promissory note made by the latter, of date Hoy. 10, 1880, for five hundred dollars with interest, payable to the former one jrear after date.

Elliott Anthony, Judge, presiding. This was an action on the case, brought by John K. Stevens, as tenant of John E. Owsley, to recover damages for certain alleged injuries to his possession of the demised premises. Owsley was named as defendant in the original summons, but it afterward appearing that he was dead, the suit was prosecuted against his executors.

Joseph E. Gary, Judge, presiding. The record in this case begins with the formalplaeita, then recites that Hov. 23, 1882, there was filed with the clerk of the superior court a transcript of a remanding order of the Appellate Court of the First District, which sets out such order, which is in the ordinary form, and purports to remand a cause between the same parties, from such appellate to the superior court; but the record is silent as to any notice to any party or…

Joseph E. Gaby, Judge, presiding. This suit was brought below by the Herricks - against Field & Leiter, upon a covenant to pay rent in a lease, dated Feb. 2, 1878, from the former to the latter of a certain store, situate upon Wabash Avenue, Chicago, designated as numbers 130 and 132, for the term of two years, commencing March 1, 1878; the lessees covenanting to pay as rent therefor, the shm of sixty-five hundred dollars, payable in specified monthly installments.

<p>Appeal from the Circuit Court of Kendall county, the ITon. C. W. Upton, Judge, presiding.</p>

<p>1. Writ of error — Judicial discretion — Time for application. —While a party can prosecute a writ of error at any time within five years from the rendition of judgment, the court is of opinion that this limitation should be held to apply only to those cases where a writ of error is a writ of right, hut where a party desires to prosecute a writ of error under section 8 of the act establishing the appellate court, he must make his application in the same time that he would be compelled to if he desired to appeal instead of suing out a writ of error.</p> <p>2. Practice. — It is a rule of practice in this court, that the court will not examine the record and give a certificate of importance under the statute to enable a party to prosecute a writ of error, unless the application therefor be made within twenty days.</p>

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

<p>Error to the County Court of La Salle county; the Hon. Htratw T. Gilbert, Judge, presiding.</p>

David McCullough, Judge, presiding. On August 1,1872, the Illinois Masons Benevolent Society issued to Havilah B. Johnson, a member of the order, a certificate of membership in said society, in and by which the society agreed, in consideration of certain assessments to he paid by said Johnson upon the death of any member of his class in said society, to pay, upon the death of said Johnson, to his wife, Judith Johnson, or to his legal representatives, a certain sum per member…

<p>1. Accommodation paper. — Where appellant did not give a certain note to a bank as mere accommodation to the bank without any consideration, but gave it for the accommodation of the cashier, who desired to deal with the bank upon the credit of the note. Held, that the money or credit obtained by the cashier of the bank was a good consideration as against appellant, who signed for the benefit of the cashier, and appellant can not claim as against appellee, the bank, that the note was accommodation paper and therefore void.</p> <p>2. Evidence. — The court is of opinion that the evidence in the case of the Dart note clearly shows that appellant either in the first place consented to the discount in question or afterward ratified it.</p> <p>3. Substantial justice done. — Although instructions were given which were erroneous in stating that appellant would be estopped from denying the correctness of the pass-book or the check, unless he informed appellee of his objections within a reasonable time after the unauthorized use of his name was discovered and other improper instructions were given, yet as upon an examination of the evidence the court is unable to see that any other verdict should have been rendered, or if rendered could have been sustained, the verdict will not be disturbed.</p>

<p>1. Judges of election. — The words of section 86, subdivision 5, of the statute relating to elections, “if any judge of any election shall [refuse to receive the vote of any qualified elector at such election, who will make the affidavit and proof required by this act,” etc., mean who shall make and present the affidavit. It is not a violation of this statute, forjudges of an election to say in advance of an affidavit being presented, that they will not allow a party to vote, even if he does make the statutory affidavit. Such, statement is only a threat to violate the law — not an actual violation of it.</p> <p>2. Challenge to vote. — Where there is a challenge to a vote, judges of election can not waive the affidavit. If they do, they are liable to a criminal prosecution.</p> <p>3. Indictment — What pabty must defend. — Where judges of election are indicted under the specific clause of the statute which provides a penalty against refusing a vote of a qualified elector, in case he presents his affidavit under the act, they are not called upon to defend against a charge of violating any other provision of the statute.</p>

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

<p>Lease under seal — 'Parol agreement. — Where appellant brought suit against appellee for $25, due on a lease under seal which contained no covenants to repair, and appellee showed that shortly after taking possession under such lease, appellant verbally agreed to build a new cistern, and endeavored to recoup the damages caused by a failure to fulfill such agreement. Held, that without anew consideration, the executory lease under seal could not be changed by parol so as to form the basis of an action or for recoupment.</p>

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

<p>1. Partnership — Drawing of draft — Bad faith of partner.— In the ease of an overdraft, drawn payable to the order of one partner, where the power exists to overdraw in the name of the firm, notice to the drawee of had faith of the partner overdrawing, would be necessary in order to release the defrauded partners from liability on such t draft. The court does not recognize any distinction as to liability, in a case where .a partnership has funds in the hands of a third party, and a check or draft is drawn payable to the order of one partner, and a case where a partner is borrowing money and pledging the firm credit.</p> <p>2. Notice. — The mere fact that overdrafts were drawn payable to a member of a partnership drawing them, would not be sufficient to charge the drawee with notice of such partner’s had faith.</p> <p>3. What will constitute notice. — In order to defeat the right of a drawee to hold all the members of a firm liable to the payment of a draft, notice of the bad faith of the partner may he shown by such surrounding circumstances as would be sufficient to put a reasonable man on inquiry, if such inquiry would have brought actual notice. The court is of opinion that the circumstances in this case were not sufficient to show notice of the bad faith of the partner overdrawing.</p>

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

John J. Glenn, Judge, presiding. This was an action in trespass by the appellee against the appellant for shooting both appellee and his horses. The first count charges appellant with shooting appellee, from which he was greatly injured and suffered, laying the damages, at $10,000. Second count for shooting appellee’s horse worth $150, from which the horse died, laying the damages at $500.

John V. Eustace, Judge, presiding. This was an action in replevin by appellant against appellee to recover the possession of a quantity of personal property, consisting chiefly of household goods and harness material, commenced June 21, 1883.

John V. Eustace, Judge, presiding. This was a suit commenced by the appellee against the appellant to recover the value of a colt, the property of appellee, killed by the locomotive of the appellant on its railroad track. There is but one count in the declaration, and in that the appellant is charged with killing the colt on’account of actual negligence in running the train, and again, statutory negligence in not fencing the road as the statute requires.

John Burns, Judge, presiding. Cannon, by his attorneys,'[Foster and Raum, commenced his action in the circuit court, against the defendant Stratton; Foster and Ranm were his only attorneys of record. Afterward he employed Mr. Edwards to assist them.

Henry C. Hyde, Judge, presiding. This action was instituted by tbe plaintiff in error before a justice of the peace of Ogle county, to recover of the defendant in error damages for a failure to deliver his crop of clover seed raised in 1879, upon an alleged contract made in September, 1879. The plaintiff in error recovered before the justice and the defendant appealed to the County Court of Ogle comity.

Arthur A. Smith, Judge, presiding. Fred, a minor son of appellant, living at home with his parents, but working «in the railroad shops and generally drawing his own pay, went to appellees, who were clothing merchants, and told them his father had sent 'him for a suit of clothes, and purchasing a suit worth $25, had them charged to his father.

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

Charles Kellum, Judge, presiding. This bill in equity was filed by the plaintiff in error, the wife of Samuel 1. Orvis, against the appellees, praying for an injunction and for general and special relief.

<p>1. Evidence. — Where the issue was upon the point whether, in fact, there had been a purchase or a payment of certain notes and mortgages, evidence of all the negotiations which finally culminated in the transfer or surrender of them to the attorney of appellant was competent, as tending to show the character of the transaction and the understanding and intention of the parties when it was finally concluded.</p> <p>2. Instructions. — Where the issue was whether there had been a purchase or a payment of certain notes and mortgages, and the introduction of the notes and mortgages indorsed to appellant made out a prima facie case entitling him to the possession of the property, an instruction which allowed the jury to infer from the fact that the amount due on said notes and mortgages was figured up and paid to the mortgagee, that such transaction was a payment and not a sale, thus practically withdrawing from their consideration the prima facie ease made by the indorsement of the notes and assignment of the mortgage to appellant, was erroneous.</p> <p>3 Degree of proof. — In a civil cause it is error to instruct that a party must prove to the satisfaction of the jury, etc. The law does not require such a high degree of proof for the maintenance of an issue in a civil cause.</p> <p>4. Attachment — Proof as to fraud. — The averment in an affidavit of a fraudulent conveyance hy the debtor, as a basis for the writ of attachment, is incompetent to prove the issue of fraud upon the trial against the officer for taking the property.</p>

J. MoRoberts, Judge, presiding. This action is brought upon the official bond of appellee, Warren, as State’s attorney of Bureau county, and the breach alleged is his failure to pay into the treasury of the town the fines collected by him from offenders against the criminal code, for crimes committed within the corporate limits of said town.

<p>1. Dower — When improvements are made. — Where a party acquires title in the husband’s life-time and makes improvements before it is in his power to assign dower, he would be entitled to the exclusive benefit of such improvements and they should not be estimated as a part of the widow’s dower.</p> <p>2. Title acquired after dower right becomes vested. — Where a party acquires title after the dower right becomes vested, through an administrator’s sale, which is, under our statute, the same as a conveyance by the heirs, the widow is endowed of the premises, or their yearly value, as at the time of the assignment. If such party before assigning chooses to repair and improve, he does so at his peri).</p> <p>3. Damages for detention of dower. — It is error for a court, without hearing evidence specially upon the subject, to award a widow damages for the detention of her dower from the time of its demand, upon the basis of the yearly value of the dower as found by the jury.</p>

<p>Appeal from the Circuit Court of De Kalb county; the Hon. Charles Kelltjm, J udge, presiding.</p>

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

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

<p>1. Bences. — When a general law prescribes what shall be deemed a “sufficient” fence, an agreement requiring a “ sufficient ” fence, without a more particular description, will be held to refer to and adopt the standard prescribed by such general law.</p> <p>2. Agreement as to eence. — A partition fence may be built and the statutory height maybe waived by agreement, in which case the agreement would control as to its sufficiency.</p> <p>3. Instruction. — An instruction that “ all he is required to prove is that his fence then and there was sufficient to turn ordinary stock.” Held, that although the case would not be reversed for the giving such instruction, yet the court is of opinion that the terms “not extraordinarily breach y ” are preferable in point of clearness to “ordinary.”</p> <p>4. Yerdict against the weight op evidence. — Where, after a fence had been erected by appellant, he and appellee’s grantor agreed to “keep in repair” or “keep up ” each an allotted portion of the fence, which agreement was acquiesced in by appellee when he obtained title. Held, that in an action brought by appellee for damages occasioned by the fence not being in proper repair, the burden would be upon him to show that the damages were not due to his own neglect to keep the fence in proper repair. As the evidence preponderates clearly in favor of appellant’s part of the fence being good and sufficient, the verdict is set aside as contrary to the evidence.</p>

<p>1. Levy — Property in goods. — An officer, who by virtue of a valid execution or other lawful warrant has taken the goods of the defendant therein, has a sufficient property in them to maintain trespass against a wrongdoer; but a wrongful possessor can not maintain it against the true owner or one who has the right to immediate possession.</p> <p>2. Trespass for retaking goods — When liable. — When an officer tabes the property of a stranger to the writ which is in the possession of certain parties, and they, as agents óf the owner, retake the property for him without a breach of the peace, they can not be made liable therefor in an action of trespass at the suit of the officer. And if either but only one of the parties was such agent, the judgment against him jointly with another who might he guilty would be erroneous as to both.</p>

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

<p>1. Master and servant — Entire agreement — Quitting before expiration of time. — Where appellee recovered judgment against appellant for the balance claimed to he due appellee for work' and labor on appellant's farm, and appellant claimed, and the evidence clearly proved, that the work was done under an entire agreement, and that appellee violated it, of his own wrong, by quitting before tbe expiration of the time for which he was engaged. Held, that the court below erred in overruling appellant’s motion for a new trial on the ground that the verdict was against the law and the evidence.</p> <p>2. Agency. — ■’Where appellee did not understand English, and by his authority a party acted for him in making a contract for services with appellant, and appellee came to work at the time and in the manner arranged for, appellee would be hound by such contract.</p>

<p>Proeessionaa propriety. — As the brief of plaintiff in error'elearly violates the ordinary and well known rules of professional propriety, it is ordered that the briefbe stricken from the files, with leave to plaintiff in error to file another brief within ten days, couched in decorous language and respectful in its terms to the judge who tried the cause, the attorneys and all other persons mentioned thei’ein.</p>

<p>Usury voluntarily paid. — Usury voluntarily paid can not be recovered back. As the jury improperly allowed to defendant in error payments of usurious interest voluntarily paid by him in Ms settlements with plaintiff in error, the court below erred in not setting aside the verdict and granting plaintiff in error a new trial.</p>

<p>Roads and bridges — Action against commissioners. — An action of debt brought against commissioners of highways by L., in the name of the town, under sections 59 and 60 of the act of 1879 entitled Roads and Bridges. L., without the consent of the commissioners or any one having authority to give consent, appropriated and used for repairing a culvert on a public highway a portion of some lumber which had been hauled by order of the commissioners to a certain bridge to be used for repairing said bridge. After the lumber had been used in repairing the culvert, the commissioners tore it out and took it back to the place from which it had been taken by L. Held, that this action will not lie against the commissioners. The property was not changed by being put in the culverts, but was still the property of the commissioners, which they had a right to use as would, in their judgment, best subserve the interests of the town.</p>

<p>1. Preponderance of evidence. — The court is of opinion that the preponderance of the evidence is in favor of appellant’s theory, that the stock car occupied a position next in the rear of the flat car, and consequently was that from which appellee fell.</p> <p>2. Defect in machinery. — Employers are not insurers of the safety of tools or machinery furnished their employes. They are only liable in case of their own negligence or that of (heir representatives, and the burden of. proving such negligence is upon the person alleging it, and where notice of an existing defect is an essential element of the negligence complained of, such notice must be proved.</p>

<p>Error to the Circuit Court of Calhoun county; the Hon. C. Epler, Judge, presiding.</p>

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

<p>1. Pleading — Action against subeties — Official bond. — In’ an action against sureties of a supervisor for an alleged breach, of his official bond, the declaration averred that the money sued for came into the hands of the supervisor during his term of office, next preceding that for which the bondinsuitwas given; that the same had never been disposed of by any order of the town, but became in his hand a part of the general fund, there having been no loss or injury proved according to the statute. Held, that a positive averment in the declaration that the money was in the principal’s hands at the expiration of the term during which it was received, or that he charged himself with it in an accounting with the town authorities, would seem to be necessary to render the sureties upon the new bond responsible.</p> <p>2. Supervisor failing to pay over — Demand.—In an action against the sureties of a supervisor for a breach of his official bond in failing to pay over moneys collected which he was bound to keep for the use of the town, the mere fact that the supervisor died without paying over the money would not of itself constitute a breach of the condition of the bond. If the supervisor had the money in his hands at the time of his death, the only proper person to demand it of his representatives would be his duly qualified successor; and until such demand had been made or an improper use of the money shown, there would be no breach of the condition of the bond.</p> <p>3. Demurrer to declaration — Copy of note. — In determining the sufficiency of a declaration upon demurrer the court can not look to the copy of the instrument sued on filed with the declaration, but only to the substance of it as set out in the declaration.</p>

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

<p>Appeal from the Circuit Court of Montgomery county, the Hon. J. J. Phillips, Judge, presiding.</p>

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

<p>1. Partnership in running a perry boat — Duties required by iaw op ferryman. — A and B entered into written articles of partnership for the purpose of running and operating a steam ferry boat over and across a certain river, A to furnish the boat in good running order with all the appurtenances, etc., and B to run and operate the same to their mutual advantage. C drove his cattle to the ferry to be crossed, but tbe water was so low that the boat could not cross, and was not running. He made an arrangement with B to assist him in swimming the cattle across the river, and in attempting to get them across in this manner a portion of the cattle were drowned. A was not present at the time and gave B no authority to cross persons or property other than that contained in the written agreement. Held, as B’s attempt to swim the cattle across the river was an act wholly outside of the duties required of him as ferryman, either by law or tbe contract of partnership, A is not responsible for the manner of its performance.</p> <p>2. Construction op contract — Duty op court. — Where the question whether the act of swimming cattle across the river by B was within the scope of his authority as a partner and binding as suck upon A depended solely upon tbe construction to be given to a written contract of the parties, it was the duty of the court to construe the contract and to inform the jury what authority, if any, it conferred as to the act in question.</p>

<p>Instructions — Evidence.—As the instructions given by the court ignore certain material and well established facts upon the questions at issue, and as the evidence is too loose and unsatisfactory to support so large a verdict, the judgment is reversed and the cause remanded.</p>

<p>Practice — Record must be certified under seal. — Where what purports to be the record in a case is not certified under the seal of the trial court, it is a nullity.</p>

<p>1. Bill of sale — Who may question validity. — Only those who are creditors at the time of the execution of a bill of sale can question its validity. Such transactions are only void as to prior and not as to subsequent creditors.</p> <p>2. Delivery. — Considering the character of the property purchased, and the possession as taken by appellee, the court is of opinion that there was a sufficient delivery to make the sale good as against creditors and subsequent purchaser's.</p>

<p>Practice. — Where appellee filed a printed brief in support of his motion to dismiss the appeal, which motion was overruled, and no brief going to the merits of the case was filed by appellee, and those filed by appellant at the time of docketing the case remained wholly unanswered, -the judgment of the court below was reversed, and the cause remanded for appellee’s failure to comply with the rules of the court.</p>

<p>1. When judgment will be bevebsed. — Two things are required to reverse a judgment: first, that manifest error has intervened in the proceedings of the court below, and second, that such error has operated prejudicially to the party complaining of it. When either of these requisites is wanting the judgment may he affirmed.</p> <p>2. Instructions — Verdict undisturbed. — Although the instructions given on behalf of both parties were argumentative, contradictory and misleading, yet as the court is of opinion that appellee was entitled to a larger verdict than the jury gave him, and appellant having failed to show that he has been wronged by the verdict, the judgment is affirmed.</p>

<p>1. Railroad pences — Fastenings to gates. — A railroad company is not required to fasten gates to railroad fences so that it is impossible for stock to open them under any and all circumstances. It has a right to use the fastenings commonly adopted in the country by persons reasonably prudent and careful, and regarded by them as safe, for the purpose.</p> <p>2. Negligence — Duty op injured party. — The law imposes upon a party injured from another’s breach of contract or tort, the active duty of making reasonable exertions to render the injury as light as possible. If, by bis negligence or willfulness, be allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of bis duty, falls upon him. .</p> <p>3. Same. — In all cases where one sees the gate of his neighbor open, the latch insecure, a hoard off the fence, or any other defect which can be at once remedied without any considerable cost or labor, and his own stock is liable by reason thereof to escape from bis premises and receive injury, it is his duty to protect himself against the threatened danger by closing the open gate, securing the defective fastening, nailing on the loose hoard, or otherwise securing himself against the threatened loss.</p> <p>4. Weight of evidence. — The affirmative of the issue to show negligence of appellant’s servants in managing the locomotives and train was upon appellee, but as the weight of the evidence was so clearly with appellant as to show that the jury have done manifest injustice, the judgment is reversed.</p>

<p>1. Negligence — Hazards incident to service. — Action against a railroad company, by a brakeman, for an injury received while coupling cars. The sole and only negligence charged was in permitting iron to project overt], end gate of the cars. The evidence showed that it was customary to load cars with railroad iron in this manner; that for two years prior to the accident, iron had thus been loaded on the cars in the yards where appellee was employed, and no accident had happened; that no one knew the manner of loading the cars better than appellee, and those skilled in the business testified that cars so loaded are constantly coupled without accident. Held, that’ appellee must of necessity have known when he accepted the position that he was liable at any and all times, when on duty, to he called upon to make couplings of cars loaded in this maimer, and when he entered the service he assumed this as well as all other hazards of the ordinary perils incident to the service; that appellee failed to exercise the care and caution which the situation required.</p> <p>2. Fellow servants — Instructions.—Whether the person injured, and the persons by whose negligence the injury is alleged to have occurred, are fellow servants of the same master, is a question of fact to he found by the jury from all the evidence in a given case, and not a question of law for the determination of the court.</p>

<p>Error to the Circuit Court of Edgar county; the Hon. J. W. Wilkin, Judge, presiding.</p>

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

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

<p>Appeal from the Circuit Court of Morgan county; the Hon. 0. Epleb, Judge, presiding.</p>

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

<p>1. Evidence — Fraudulent intent. — To render a sale fraudulent under See. 1, Chap. 11, R. S. 1874, it is not necessary to show that the purchaser participated in the fraudulent intent as his title to the property is not in issue. Where the question at issue was whether a husband acting as the general agent of his wife, had within two years next preceding the commencement of this suit fraudulently conveyed or assigned the effects of appellee, his wife, or a part thereof, so as to hinder or delay her creditors. Held, that the evidence as to the transaction in this case was sufficient to have fairly raised upon the trial the question of fraudulent intent and it should have been submitted to the jury.</p> <p>2. Husband and wine — Evidence.—Where appellee was put upon the stand as a witness for appellants, and in order to charge her with a knowledge of the sale by her husband of her effects to one W., she was asked certain questions interded to draw out the facts that she had derived certain information concerning the sale from her husband and that she had given him certain directions in regard to it. Held, that this class of evidence does not come within section 5, chapter 51 of the statute. The wife was being examined with reference to her own business transactions in which it was alleged her husband had acted as her agent. She was not testifying against her husband and therefore he could not he prejudiced by anything she might say.</p>

<p>1. Contbact — Lien—Estoppel.—Appellee agreed to furnish A with msrchandise, and A promised that appellee should be paid the first money received from A’s crop. There was no contract whatever that appellee should have a lien upon or any interest in the crop. Subsequently, appellant Brown leased the farm to A, who was his son-in-law, and furnished him the necessary expenses to carry on the farm. Held, that appellant could secure himself upon the crop for such advances by provisions in the lease, if made in good faith, or by pledge or mortgage subsequently made, for the arrangement between appellee and A would not deprive appellant of the right to secure payment of his advances, if by the use of greater diligence he could procure the first lien. And the fact that, after appellant leased the premises, he gave appellee an assurance or verbal guaranty that appellee should be paid, would not work an estoppel hipáis.</p> <p>2. Instructions — Bill on sale — Possession.—The third instruction is misleading, in that the plain inference to be drawn from it is, that although there may have been no delivery of the com under the bill of sale to appellee, yet as to all persons except subsequent purchasers the title would pass. If appellant, at the time of the execution of the bill of sale to appellee, was in possession of the property by a valid pledge or under a chattel mortgage, although it had neither been acknowledged nor recorded, and continued m such possession after the making of said bill of sale, he could not be regarded as a subsequent purchaser, and yet his lien would be protected by his possession. The instruction, therefore, fails to make a proper exception as to appellant, if he occupied either of the positions indicated.</p>

<p>Appeal from the County Court of Moultrie county; the Hon. J. Meeker, Judge, presiding.</p>

<p>Appeal from the County Court of Moultrie county; the Hon. J. Meekeb, Judge, presiding.</p>

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

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

<p>1. Sale and gift of intoxicating liqtjohs. — The sale and gift of intoxicating liquors to a minor, under the statute, are distinct and separate offenses and the proof of one will not sustain a charge for the other.</p> <p>2. Ybbdict — Evidence.—Where there were four counts in an indictment and the defendant was found guilty by a jury as charged in the indictment and the judgment and verdict were upon each count in the indictment, and there was no evidence whatever to sustain the fourth count. Held, that the judgment was improper.</p>

<p>Appeal from the County Court of Lawrence county; the Hon. Phillip W. Babnes, Judge, presiding.</p>

<p>1. Actions ex contractu — Joint recovery. — In an action ex contractu against several defendants, the plaintiff must recover against all the defendants or none, except where a defense is interposed personal to the party making it — as infancy, coverture, lunacy, bankruptcy, and the like.</p> <p>2. Personal defense. — A defense, in an action on a note, that certain parties who had with others signed the note had been discharged, by arrangement of all parties, from their liability upon the note, and that as this occurred subsequently to the making of the note, it might be shown byway of defense without affecting the liability of their co-defendants, can not be regarded as a “personal ” defense.</p> <p>3. Joint contractors — Release of some — Pleading.—Ordinarily, where one of several joint contractors is released all are released; but where, by mutual understanding of the parties, some shall be discharged and the others held for another period, the old contract no longer exists, and the liability of the parties should be alleged according to the present effect and condition of the contract.</p>

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

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

Louis; the Hon. William P. Launtz, Judge, presiding. The court finds the facts in this case to be as follows: that appellant’s railroad runs north and south through the village of Venice, in Madison county, Illinois; that the deceased, Patrick McKenna, lived a short distance from and northwest of the depot or station of appellant’s road in said village; that between the depot and the residence of the said McKenna, there are five side or switch tracks on appellant’s switch…

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

<p>1. Title in personal property — Delivery—Replevin.—R. agreed to furnish appellee with certain lumber which R. was to haul to appellant’s mill and there have it sawed, the amount to be paid for the sawing to be deducted from the purchase price to be paid R. Appellant refused to deliver the lumber to appellee until he paid the bill for sawing, and also an item of $3.00, due appellant from R. Appellee agreed to pay for the sawing hub refused to pay the $3.00 item. There was no evidence in the record tending to show that any part of the lumber had been delivered by R. to appellee, or that the am.ount to be purchased by appellee had been agreed upon. Held, that appellee could not maintain an action of replevin against appellant for the lumber. The title could not vest in him by force of the agreement to manufacture the lumber alone.</p> <p>2. When action of replevin may be maintained. — Replevin lies for specific property, capable of identification and actual return, and can not be maintained for an undivided interest or share, except in cases of fraud or .wrongful confusion of the property.</p>

<p>1. Chancery jurisdiction — Mandamus proper remedy. — A hill in chancery, filed by defendant in error against a municipal corporation to enforce tbe payment of a judgment, and praying tbat an account be taken of the resources of the city, and that plaintiff in error he enjoined from paying illegal claims, that its officers be enjoined from drawing warrants against the levy of taxes of 1883, etc. Held, that a court of chancery has no jurisdiction, as defendant in error has an ample and complete remedy at law by mandamus to enforce the payment of his judgment. The averments of fraud in the bill are too uncertain and indefinite to give a court of chancery jurisdiction, if such jurisdiction could be maintained on that ground in a case of this character.</p> <p>2. Pleading — Charges op pbaud. — Charges of fraud must be clear and specific. The material facts upon which the allegations of fraud are based must be set forth, as well in chancery as in law pleading. If the averments of fraud are indefinite, uncertain and not material, a court of chancery does not obtain jurisdiction. There can be no relief beyond the specific and material allegations in a bill.</p> <p>3. Chancery practice — Decree pro conpesso — Writ op error.— Where a decree rendered gave to the defendant in error all, if not more relief than the averments in the bill justified, and was as to all intents and purposes a substantial adjudication of the rights of the parties, the objection that the decree made pro confesso was merely interlocutory and that there had been no such final disposition of the cause as would authorize the prosecution of a writ of error, was not well taken.</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>Statute against extortion — Publishing oe schedule.— Under section 19 of chapter 114 Underwood’s Statute, entitled Railroads, which provides for the railroad and warehouse commissioners making for each railroad corporation doing business in the State a schedule of maximum rates of charges for transportation of passengers, freights and cars, and makes it the duty of the commissioners to cause such schedules to be published for three successive weeks in some public newspaper published in Springfield in this State, the classification of freights made by the commissioners is a part of the schedule, and to be operative must he published the same as the schedule.</p>

<p>Jurisdiction — Validity on statute involved. — Where the validity of a statute is involved, the appeal must go directly to the Supreme Court. The court therefore dismisses the appeal and leave is given to withdraw record, abstracts and briefs.</p>

<p>Jurisdiction. — Where the question of the validity of a statute is involved, this court has no jurisdiction, and when the point is made in apparent good faith and must he disposed of in order to decide the case, the court will upon its own motion decline to consider it. 1</p>

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

<p>Appeal from the Circuit Court of Williamson county; the Hon. O. A. Harker, Judge, presiding.</p>

<p>Practice — When an appellate court will reverse. — While an appellate court will not reverse a case to allow a plaintiff to recover merely nominal or vindictive damages and will hesitate to reverse on the facts merely, where several juries have found the same way, yet where there is a clear right to recover some damages, and the verdict is wholly in violation of the plaintiff’s legal rights, the judgment will be reversed.</p>

C. S. Congee, Judge, presiding. This was a bill in chancery filed by the appellant against the appellee in the Circuit Court of Edwards county.

<p>Negligence — Evidence of. — Where the only ground upon which appellee could recover for an injury to an- animal was negligence in the management of the train at the time of the accident, and the only evidence upon this point was the testimony of the train men, who testified that there was no negligence in such management, and they were uncontradicted and not discredited in anywise, a judgment for appellee could not be sustained.</p>

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

<p>1. Evidence — Res gest.®. — Where plaintiff offered evidence to prove that at the time he sent a telegraphic message he explained to the person receiving it and to the manager of the local office the importance of the message and the necessity of promptness in its transmission and delivery, such evidence would be admissible as constituting a part of the res gestee.</p> <p>5. Notice to agent, notice to pbincipal — application op bule. —The general rule that notice to the agent is notice to the principal in regard to the transaction in which the agent is engaged should have a reasonable and just application, and when the principal is a corporation whose functions must all be performed by agents who are mainly independent of each othei, it would seem necessary that the notice should reach the agent whose act is the subject of complaint or his official superior who may control or direct him.</p> <p>3. Notice to telegbaph agents. — Independent agents. — The local agent at the office where a telegraphic message is received has no authority or control over the agent at the other end of the line, and notice to the former should affect his principal only so far as his acts are concerned, and he is so far separate and disconnected from the agent at the other end of the line that as to the acts of the latter, the notice to the former has no legal effect.</p> <p>4. Question op pact. — The question whether a message is on its face such as to disclose the nature of the business and notify the defendant that its prompt delivery is necessary, is purely a question of fact and should be submitted to the jury, uninfluenced by the former opinion of this or the circuit court.</p> <p>5. Liability op telegbaph company pobdelay, etc. — A telegraph company should be held strictly accountable for negligence in delaying the delivery of a message, and responsible for all damages necessarily and directly caused by such neglect in all cases where it knows or may be fairly presumed to know that important interests are involved and that prompt service is therefore necessary.</p> <p>6. Delay op party sending message. — The question whether a party was negligent in not sending a message sooner can not be raised in an action against the telegraph company by such party for delay in delivering the message. There is no ground for the applicatiqn of the doctrine of contributory negligence.</p>

<p>1. Estoppel by judgment. — Where it- is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated or determined. The former verdict is conclusive only as to facts directly and distinctly put in issue, and the finding of which are necessary to uphold the judgment; it is not conclusive as to facts which may be in controversy, but which rest in evidence and are purely collateral.</p> <p>2. Ascertaining what has been decided. — In ascertaining what lias been decided, the actual judgment of the court must be consulted rather than the reasons urged in its support.</p> <p>3. Estoppel by conduct. — Where an act is done or a statement made by a party which can not be contradicted or contravened without fraud on his part and injury to others whose conduct has been influenced by the act or statement, the character of an estoppel will attach to what would otherwise be mere matter of evidence, and the party will be concluded from denying and disproving it.</p> <p>4. Judgment in replevin — Upon what points conclusive — Estoppel. — Appellants agreed to take the wheat in appellees’ elevator, the quantity of which was represented by appellees, both by letter and orally, to be two carloads, and $500 was advanced by appellants. That night the elevator burned down. The next day appellants demanded a return of their money or the wheat. Appellees were unable to pay, and pointing to a pile of wheatonly partially burned, said. “ Your money is in tha.t pile of wheat there.” Appellants brought an action of replevin and obtained a judgment establishing their right to the pile of wheat. Appellees now bring this suit to recover the value of all the wheat in the elevator, alleging that there were four instead of two car loads; that in their business intercourse with appellants they were in the habit of overloading the cars, and when they represented the quantity to be two car loads they meant such loads as they had been sending appellants. Held, that the judgment in the replevin suit is binding and conclusive upon the parties as to the ownership of the wheat; but that the amount of the wheat in the elevator was not necessarily or directly in issue in such proceeding, and the judgment is not binding as to such question; that appellees are estopped by their conduct from setting up that there were four car loads.</p>

<p>1. Contract for benefit of a third person — Statute -of Frauds. — Where one enters into a simple contract with another for the benefit of a third, such third person may maintain an action and such contract is not within the Statute of Frauds.</p> <p>2. Novation. — In novation the debtor does not undertake to pay the debt of another but contracts an entirely new debt of his own, the consideration of which is the absolute discharge of the old debt. Consequently the new debt is not witbin'the provisions of the Statute of Frauds relating to the promise to pay the debt of another.</p> <p>S. Joint debtors — Release by novation.— Where appellant was treated on all hands and by common consent as the real and sole lessee, and F. was connected with the lease, only nominally. Held, that even if F. should be considered as a joint debtor with appellant, yet as appellant by the novation was in fact released, the legal effect would be to' release his co-debtor.</p> <p>4. Practice — Time to make objection.— Where certain evidence was admitted on the trial without objection, it was too late to make objection for the first time in the appellate court.</p>

<p>1. Guardian and ward — Keeping down incumbrances. — 'Where a guardian, without an order of court, made payment from the income and profits of his ward’s estate for taxes, interest and payment on the mortgage debt, and these payments were manifestly for the benefit of the ward, and absolutely essential for the preservation of his estate, the guardian should be allowed these items in his settlement.</p> <p>2. Powers op guardian — Statute op “ Guardian and Ward.”— While the above power is not one of the powers enumerated in our statute as vested in the guardian, yet the statute of “ Guardian and Ward ” was not designed as a complete code, and except as therein otherwise provided, the common law regulating the powers, duties, rights and liabilities of guardians is left in force.</p> <p>3. Duties op guardian and administrator. — Where the taxes on the bond had accrued and were due before the death of the ward’s father and were not paid by the administrator, it was proper that the guardian should pay the same, for the taxes and mortgages were direct and immediate charges and liens upon the realty, and that was vested in the ward, and upon the guardian devolved the duty of its care and management. The administrator is not hound to protect the real estate and to it he is an utter stranger. . \</p>

<p>1. Pleading — Waiving tort and suing in assumpsit. — If one person converts the property of another into money the owner may waive the tort and. sue in assumpsit. Where counts in assumpsit alleged a wrongful conversion of certain bonds and then averred a legal liability and subsequent promise in consideration thereof to pay. Held, that the counts were defective in not averring the fact of the sale and conversion of the bonds into money.</p> <p>2. Evidence. — The whole of an admission is to be taken together and when part of a conversation or statement is put in evidence by one party, the other is entitled to put in the whole so far as it is relevant, and it makes no difference whether the whole statement comes out upon the direct examination or part of it is drawn out on cross-examination.</p> <p>3. Instructions. — It is error in an instruction to single out a number of inconclusive circumstances in proof favorable to the one side, omitting all references to other circumstances favorable to the other side and bearing on the same point and inform the jury such circumstances were proper for their consideration in making up a verdict.</p> <p>4. Contract — Value op consideration. — Where one party agrees to give another certain bonds in return for the latter boarding and keeping the former for life, in the absence of fraud, the value or sufficiency of the consideration of such a contract is not a question for the jury.</p> <p>5. Statements op counsel. — Where counsel in his argument Ftated that he had numerous witnesses present by whom he could have proved that intestate was insane and that he would have proved it if appellant had attempted to show that he got the property in question by any contract with him, and the testimony in the case afforded sufficient ground for the introduction of the witnesses claimed to be on hand. Held, that it was error for the court to permit appellee’s counsel to make this statement against the objection of appellant.</p>

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

<p>1. Liability of administrator — Funds deposited in individual name. — Where an administrator deposits in his own individual name, funds of the estate in a hank which fails while holding such deposit, the loss is hi3 own and not that of the estate; and this though he had no other funds in such hank, and informed its officers at the time of- making the deposit that the funds were held by him in trust.</p> <p>2. Administrator depositing funds of estate in his individual name. — Where an administrator without any authority from the court deposited the funds of the intestate’s estate in a bank outside of the State, and the money was deposited in his individual name, hut he informed the teller of the hank at the time of the deposit that it belonged to the estate, and it was not mingled with funds of his own, hut with other trust funds also in his custody, and the hank failed. Held, that the administrator was personally hable for the loss; that taking the money outside of the State was an unlawful act, and the fact that it was discretionary with the court, if an application for such order had been made, to allow it to he deposited outside of the State, can not have any hearing on the liability.</p> <p>3. Gift to administrator by creditors. — Where some of the larger creditors of an estate thinking that the administrator had acted in good faith, even if unadvisedly, in depositing the money of the estate and losing it, and regarding the loss as a hardship, made the administrator a personal gift of eight per cent, of their claims against the estate, their object being to divide the loss with him to that extent. Held, that the heirs and distributees of the estate could not claim the money thus given.</p> <p>4. Taxing administrator with interest. — The court is of opinion that the administrator should not be taxed with interest on the moneys in his hands, as it is manifest from the evidence that it was notreasonably possible the administrator could have made final settlement of the estate in two years.</p> <p>5. Costs. — The court is of opinion that the estate should pay the ordinary costs of final settlement and the costs occasioned by the exceptions to the report, except the costs occasioned by the litigation over the bank deposit, which the administrator should personally pay.</p>

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

<p>1. Dower and homestead — Contribution by widow'. — In a suit for dower and homestead brought by the widow, plaintiffs in error set up certain incumbrances which they had paid, and contended that the widow should be compelled to contribute. The Supreme Court passed upon the right of the widow to dower and homestead, and the question now in controversy is as to the amount to he paid by the widow. Held, that the parties are to contribute in proportion to the value of their respective interests. The ratable proportion will be determined by the value of the widow’s estates as compared with the value of the fee simple.</p> <p>2. Present value of homestead to be considered. — The court is of opinion that the vice of the master’s report in this case, is that he proceeds upon the false assumption that the value of the homestead is fixed by law at §1,000. The present value of the homestead is first to be ascertained and deducted and then the widow would have dower in the residue.</p> <p>8. Evidence. — Where it was urged that it is recited iu the decree that the court heard evidence, and that it will he presumed the court had evidence before it of the value of tbe fee simple and of the present values of the dower and homestead, and from such evidence fixed the amount at §950, eto. Held, that such presumption might prevail were it not that the certificate of the chancellor is certified by him to contain “ all the evidence offered by either party on the trial of said cause,” the court, therefore, must hold that there was no evidence upon which to base tbe findings of tbe court in this regard.</p> <p>4. Jurisdiction. — As the question of the right of defendant in error to dower and homestead was settled by the Supreme Court, and the only controversy now involved is as to the amount she should pay toward lifting the incumbrances, this court has jurisdiction.</p>

<p>1. Set-off. — Set-off has application only to actions brought on contract; it is a counter claim which the defendant holds against the plaintiff, and usually arises out of a transaction extrinsic to that involved in the plaintiff’s cause of action; the defendant, on properly pleading it, may recover a judgment for any excess of indebtedness in his favor, and both the original action and the cross action are ex contractu.</p> <p>2. Recoupment. — Recoupment is a mere right to reduce or defeat the plaintiff’s demand, on account of some matter connected with the transaction upon which the suit is brought. The recoupment may be to the full extent of the plaintiff’s damages, but the defendant can not recover any excess of damages; a claim originating in contract may be set up against one founded in tort, and damages for a tort in a suit on a contract.</p> <p>3. Yerdict in recoupment in excess of damages. — In an action brought upon two promissory notes given in part payment for a mill, defendants relied upon a plea whose gist was the conversion of the mill to the use of the plaintiff subsequent to the giving of the notes. Held, in the absence of a special demurrer to be a good plea in the nature of a plea of recoupment, and it was erroneous to render an affirmative verdict and judgment for an excess of damages for the defendants.</p>

<p>1. Railroad discriminations — Charter granted by State. — The “ right to fix rates of tariff with such discriminations as to it may seem to be most conducive to the interests of its road,” granted to a railroad company in its charter by the State, must be construed as being with an implied limitation or restriction that the railroad shall, in fixing the rates of tariff, make them reasonable, and not extortionate, and that it shall in making discriminations make such only as are reasonable and just.</p> <p>2. Discriminations at common law. — At common law all discriminations by common carriers are not forbidden, but only those which are unreasonable and unjust. As they are carriers for hire indifferently for all persons, they are required to serve all who properly apply for transportation in the order of their applications. Authorities differ as to whether the common law rule against unjust and arbitrary discrimination, requires an equality of charge. The weight of American authority, however, is that the common law requires that the charges must be equal to all, for the same service of transportation under like circumstances.</p> <p>3. Difference in distance. — There is no requirement of the common law, that when there is a difference of distances in the services performed, the charge of the common carrier shall be proportioned equally to the respective distances; or that when the greater charge is made for the greater distance, it shall bear any given proportion to that made for the shorter distance.</p> <p>4. Construction of statute. — The seven specified acts of discrimination in section three of the statute, define the offense of unjust discrimination “such’' as is to “he deemed and taken” as “the unlawful discriminations prohibited by the provisions of the act,” and the clause “This section shall not be construed so as to exclude other evidence tending to show any unjust discrimination in freight and passage rates ” the court regards as treating of the matter only in its evidential aspect a,nd not as intended to expand the definition of the offense so as to include any discrimination in freight or passenger rates that the court or jury may deem unjust. It is the intent of the clause not to confine the plaintiffs to the simple fact which makes the prima facie case, but allow them to introduce “ other evidence tending to show ” the discrimination involved in the prima facie case was unjust.</p> <p>5. Discriminations — Difference in distance. — Where the distance from A to B was 14 miles and of 0 to B was 28 miles and the schedule of reasonable maximum, freight rates established by the commissioners for appellant's railroad was $14.22 per car load from A to B and $17.58 from C to B and the railroad .company charged $17.40 per car load for the latter distance and $5.00 for the former. Held, that this was no unjust discrimination within the provisions of the act of 1873.</p> <p>6. Unjust discrimination. — Where appellant charged appellees two cents more per hundred pounds per car load for carrying certain wheat from C to B than it charged others for wheat shipped from 0 and consigned' to and delivered in the B elevator in B. Held that this case falls directly within the provisions of the statute. The right of the corporation to compel the shipper, under the penalty of a higher rate of toll, to ship his freights to a particular consignee can not be admitted, and the alleged difference of delivery on the track and delivery into an elevator in detention of cars does not afford a just ground for such discrimination.</p> <p>7. Pleading. — When a defendant demurs to a replication to a plea and the demurrer is overruled, and he traverses the replication and goes to the country, he can not raise the legal question presented by the demurrer.</p>

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

<p>Puefondekance oe evidence. — The court is of opinion that the clear preponderance of the evidence is in favor of appellant, viz.: that appellee was guilty of negligence and unskillfulness in manufacturing a dress for appellant, and therefore the judgment is reversed so that the cause may be submitted to another jury.</p>

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

Elliott Anthony, Judge, presiding. This was an action of assumpsit brought by the defendants in error, in the Superior Court of Cook county, against the plaintiff in error, Dunlap, and his partners, Beale Brothers & Eish. Summons was issued November 3, 1883, against the defendants Beale and Fish, which was returned not found. On the same day a capias ad res. was issued against Dunlap, upon which he was arrested.

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

Thomas A. Moban, Judge, presiding. This was a bill in. chancery for an injunction, brought by the Chicago and Northwestern itailway Company against the Tillage of Jefferson, Cook county, 111., a corporation organized under chapter 24 of the JRevised Statutes, and Asa F. Bradley, the village engineer, to restrain the defendants from constructing a certain ditch or drain under and across the complainant’s railway track in said village.

John Gt. Rogers, Judge, presiding. This is an appeal from a judgment rendered in the court below against Jacob and Henry Beidler and three others, in an action of trespass brought against them by Robert H. Fish, for forcibly entering the plaintiff’s store and attempting to expel him therefrom. The declaration contains two counts, the first charging the defendants with assaulting and beating the plaintiff; the second, trespass qua/re clausum.

Joseph E. Gary, Judge, presiding. This action was assumpsit, brought by Beckwith against Althrop, the declaration containing two special counts, and the ordinary common counts.

Eollin S. Williamson, Judge, presiding. This action was debt, brought by the appellant, Corwith, against the appellee, the village of Hyde Park, and based upon a judgment rendered in the superior court Dec. 29, 1873, in favor of the former against the latter, for the sum of $1,017.45, in a proceeding upon the petition of said village of Hyde Park, theretofore filed in said court, under an ordinance ordering the opening of a certain public street in said village, and the…

<p>Witnesses, credibility or — Instruction.—Where the court instructed the jury as follows, 1 ‘The testimony of one credible witness is entitled to more weight than the testimony of many others, if, as to those other witnesses, the jury have reason to believe and do believe, from the evidence and all the facts before them, that such other witnesses have knowingly and willfully testified falsely and untruthfully, and are not corroborated by other credible witnesses or by circumstances proved in the case,” and the circumstances of the case were that plaintiff testified in his own behalf in direct conflict with the testimony of defendant and many witnesses in his behalf. Reid, that the instruction is erroneous; there is no such rule of law as that embraced in the instruction. It is also erroneous in omitting the hypothesis is that the “ many witnesses ” had so falsely testified as to some material fact or point in the case.</p>

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

<p>Husband and wife — Divorce—Domicile of wife. — A wife, after the commission by her husband of an offense or injury which entitles her to a divorce, is under no further legal obligations to make his residence or domicile hers, but is, for all the purposes of seeking redress under the statute in relation to divorce, at liberty to acquire or establish for herself a residence or domicile separate from his, and if such residence has in it the proper element of permanence, and is acquired in good faith, it is sufficient to authorize a decree of divorce, although the residence and domicile of the husband may be in another and a foreign jurisdiction.</p>

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